Coles Miller

Employment Bulletin - October 201423rd Oct 2014

by on 23rd Oct 2014



Around about now, some parents-to-be will be thinking ahead to next April. In less than nine months' time babies will start to be born to mothers, fathers and partners or will be placed with adopters who are entitled to a new form of shared parental leave.

The key date is 5th April 2015; babies born or placed through adoption on or after then will trigger rights for their parents to combine and divide their individual leave entitlements.

It may seem some way off, but now is the time for businesses to think about preparing policies to deal with employees' requests, and to have the answers to their queries in the lead-up to the changed law. Early discussions will help you understand the sort of arrangements you're going to need to make, and plan for a smooth transition.

Neil Andrews
Partner, Coles Miller Solicitors LLP


The birth of new antenatal rights

Sticking with the parent and child theme, the right to attend antenatal appointments during working hours has been extended. As of 1 October 2014, expectant fathers and the partners of pregnant women can request to take unpaid time off work to be present at pregnancy-related medical appointments, as well as classes like parentcraft. The right extends to intended parents in a surrogacy arrangement too.

Under the previous rules, pregnant women were the only category of worker entitled to reasonable time off, and they had (and still have) the right to be paid their normal hourly rate for that time. Now anyone who has a "qualifying relationship" with the pregnant woman or her unborn child has the right to accompany her to antenatal appointments, regardless of how long that person has worked for you (although an agency worker must have completed their 12-week qualifying period).

As an employer, you only have to allow that employee or agency worker to be away from work for up to two antenatal occasions lasting no more than six and a half hours each. This is the minimum required by law; it's open to you to agree to someone taking more time off if that's reasonable.


Important change for companies which employ drivers

Since 10 September 2014, all professional drivers (essentially lorry, bus and coach drivers) have needed to carry a Driver's Qualification Card (DQC). To get this, they must pass the Drivers Certificate of Professional Competence (CPC) ­ and it will be a criminal offence to drive without it.

Organisations could also find themselves criminally liable if their drivers drive in breach of the CPC requirement. Companies and their directors could be fined up to £1,000 each, and the business' operator licence could be threatened.

The message to employers is: make sure drivers know about the CPC requirement and are assessed immediately. Since 10 September, they're not able to drive legally without the CPC and that could mean they stand to lose their jobs. That all needs to be communicated to staff, with full encouragement to get the CPC immediately.


Dismissal for non-criminal conduct

Okhiria v Royal Mail

Gross misconduct at work can be criminal behaviour. But that crossover doesn't necessarily have a bearing on an employer's internal procedures. It's perfectly possible that an employer can fairly dismiss even where the police decide not to prosecute or where there has been an acquittal.

Mr Okhiria was a postman, dismissed for gross misconduct after being suspected of various criminal activities. He was due to be prosecuted but before that happened the Royal Mail dismissed him. He was later acquitted of the criminal charges and brought an unfair dismissal claim, arguing that his employer should have waited until the criminal proceedings were over before deciding whether or not he should lose his job.

His claim failed. The Employment Tribunal held that the employer had adequately and reasonably investigated the alleged misconduct and its decision to dismiss fell within the band of reasonable responses.

Every case turns on its facts but here there were some quite interesting points, aside from the main thread that criminal processes are usually distinct from a company's internal disciplinary decisions.

It didn't matter that the disciplining officer did not have a transcript of the police interview (or a copy of the tape) to hand. Relying on a summary of that interview was fine. Nor did it matter that papers relating to the internal appeal and which invited a response from Mr Okhiria were sent to the wrong address. The employer had no reason to believe that had happened because employees rarely respond, and also Mr Okhiria had an opportunity to point out later that he hadn't commented on the notes (which, incidentally, he didn't).

The Employment Appeal Tribunal upheld the tribunal's decision; there was no reason not to, it said, because there was nothing perverse in it.


Acas guidance on appearance

The boundaries of discrimination law are being tested all the time. As more classes of people gain protection, others naturally seek it out.

Stories like those of Jo Perkins hit the headlines every now and again. Her contract was terminated because she hadn't covered up a four-inch butterfly tattoo on her foot. This contravened the "no visible inking" policy which many employers have in place.

It's a difficult one for businesses, keen to protect their brand image. There is a risk of appearing to be out of touch, stifling individuals' freedom of expression. But in reality tattoos aren't always well received, particularly when it comes to certain types of customer-facing jobs.

The bottom line is that there is no specific legal protection from being dismissed (or suffering another detriment) simply for having a tattoo. It's for employers to introduce the right policies in the right way and to follow the correct disciplinary procedures when a tattoo becomes an issue.

But there is new guidance, from Acas, about dress codes and appearance generally in the workplace.

It's a good summary of the sorts of things employers should think about before, during and after issues about appearance in the workplace arise.


Status is what it is

Plastering Contractors Stanmore v Holden

Mr Holden was employed by Plastering Contractors Stanmore (PCS) as a general labourer. Almost four years after he started it was agreed, in exchange for a payment of £200, that he would become a labour-only subcontractor.

From that point, PCS used him on an as-and-when basis although he worked almost exclusively for the company. His pay depended on the work he undertook, according to a tariff set by PCS. PCS provided some safety clothing and, if Mr Holden had to transport equipment between sites, he was provided with a vehicle.

That arrangement continued for 12 years until Mr Holden became fed up. He started working elsewhere and brought a holiday pay claim against PCS. The question was, was he a worker (and entitled to holiday pay) or self-employed (and not)?

The Employment Appeal Tribunal (EAT) upheld the tribunal’s decision that, despite the purported change in status, Mr Holden remained a worker. He had been regularly offered work by PCS over a period of 16 years and the company expected him to turn up ­ and that meant he was integrated into the workforce. There was enough mutuality of obligation during each assignment to suggest worker status and PCS had exercised the necessary degree of control over him.

So attempts to change status, even where agreed and understood ­ and, as in this case, paid for ­ will not necessarily succeed where the reality of the working relationship is something else. It’s a message issued quite regularly by the EAT but still raises very arguable points and, therefore, grey areas for employers to carefully navigate.  


Emergency time off

Ellis v Ratcliff Palfinger

Employees are entitled to take unpaid reasonable time off work to deal with dependant-related emergencies. It's subject to their telling the employer ­ as soon as reasonably practicable - why they are absent and for how long they expect to be off work.

Mr Ellis' automatically unfair dismissal case failed because he hadn't taken the necessary steps to keep his employer informed of his whereabouts when his wife went into labour and went on to give birth.

He was already on a final written warning for attendance issues. He took his wife to hospital several times one Monday without telling Ratcliff where he was, although his father telephoned for him that afternoon. The next day he again attended hospital where she gave birth. He didn't go into work and didn't telephone to explain why. He was then contacted by his employer who asked him to explain his absence urgently, and Mr Ellis left a voicemail message explaining that he would not be in work the next day.

At his disciplinary hearing Mr Ellis said that the battery on his mobile phone had died and he couldn't remember Ratcliff's phone number. He was dismissed.

The tribunal held that he had not been automatically unfairly dismissed for taking time off. Employment protection did not kick in because Mr Ellis had not kept his employer informed about his absence. The reasonable practicability of making contact depends on the employee's state and condition, and here Mr Ellis could have made more of an effort.

The Employment Appeal Tribunal upheld that decision.


And Finally...

Elys v Marks & Spencer

It comes to something when you fall asleep at work.

For one employment tribunal lay member, this may have been the unfortunate reality when he was observed with his eyes closed at various points during a three-week hearing. He had been drooling and even received a nudge from the judge.

The claimant (who had lost) appealed the decision, arguing that the judgment should be overturned because a sleeping lay member is a material procedural irregularity.

The Employment Appeal Tribunal (EAT) held not. On the subject of sleep, the EAT said that the member had dry eyes, so closed them, and had been taking painkillers. But other than that, the member wasn't guilty of inattention or of giving the appearance of inattention. He had asked questions, taken notes and taken a full part in the tribunal's discussions. The 15 to 20 seconds he had spent ostensibly asleep was not enough to be a procedural irregularity.


The information and any commentary contained in these bulletins is for general information purposes only and does not constitute legal or any other type of professional advice. Coles Miller Solicitors LLP do not accept and, to the extent permitted by law, exclude liability to any person for any loss which may arise from relying upon or otherwise using the information contained in these bulletins.

If you have a particular query or issue you are strongly advised to obtain specific, personal advice about your case or matter and not to rely on the information or comments in this bulletin.

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