Employment Bulletin - April 201012th Apr 2010

by on 12th Apr 2010



Spring has arrived and we hope you managed to negotiate the perils of April Fools' Day. British employers don’t appear to have the same problems that their counterparts in the USA have at this particular time of year. Manpower USA even went to the extent of providing employers with a guide on 'How not to get sued on April Fools' Day', which included horror stories of workplace pranks that had resulted in death or injury.

A less serious, but nevertheless expensive, joke involved an employer who offered a "free Toyota" to the employee who sold the most beer in his bar. At the end of the day the winning member of staff was led to the car park and presented with a "toy Yoda" Star Wars figure. The employee didn't get the joke and successfully sued for breach of contract and fraudulent misrepresentation.

We start this week with the new legislation introduced this month (no jokes here):-

Neil Andrews

Partner, Coles Miller LLP

'Fit' Notes

As of 6th April 2010, a new scheme of 'fit notes' was introduced, replacing 'sick notes' and intended to enable employers to consider whether a sick employee can return to work earlier and make some sort of contribution. The 'fit note' includes an option for the doctor to state that an employee is 'not fit for work', but also a new option that an employee 'may be fit for work taking account of the following advice'.

The doctor is given the opportunity to recommend changes which could be made to an employee's work environment or job role to help facilitate a return to work, subject to the employer's agreement. These include changes such as, altered hours, phased return, amended duties or workplace adaptations. The doctor is also invited to provide general details of the functional effect of the individual's condition - how the illness or injury will affect the employee at work.

Employers need to consider the doctor's recommendations, together with the employee's opinion and its own knowledge of the practicality of any recommendation. Ostensibly, the new regime is designed to assist both employers and employees, by allowing the employer the opportunity to have an employee return to work sooner than they might otherwise. There may be other indirect consequences though; while employers are not specifically required to act on the doctor's advice, there could be implications if they fail to give them proper consideration, especially where an employee might come within the definition of 'disabled' under the Disability Discrimination Act. Employers will need to be careful not to leave themselves open to accusations of discrimination.

Doctors who do not have occupational health training may not always be in the best position to make an informed assessment of an employee's working capabilities. In the first instance, they will only know what the employee tells them about what their job involves. Employers should encourage employees to fully engage with their doctors and it may be necessary for employers (with the employee''s permission) to provide doctors with further information and to ask them to clarify/ further consider their recommendations.

Additional paternity leave

On 6th April 2010, new legislation introduced the right for fathers and partners (including same sex and civil partners) to take up to six months additional paternity leave (applying to parents of children due on or after 3rd April 2011), provided the mother has returned to work without exercising her full entitlement to maternity leave.

In effect, it allows parents to transfer maternity leave between themselves. Additional paternity leave will be for a maximum of 26 weeks and minimum of 2 weeks; it must not start until at least 20 weeks after the birth or placement for adoption; it must end not later than 12 months after the birth or placement for adoption; and it may only be taken in multiples of complete weeks. Where the additional paternity leave is taken during the mother's 39 week maternity pay period, it will be paid leave, at the same rate and in the same way as Statutory Maternity Pay. Parents will be required to 'self certify' by providing details of their eligibility for paternity leave to their employer (although employers and HMRC are able to carry out further checks of entitlement if necessary).

Right to request training

With effect from 6th April 2010 employees who have more than 26 weeks' service working for large businesses (those with more than 250 employees) have the right to request time away from their core duties to undertake any training that will "help them to be more productive and effective at work, and that helps their employer to improve productivity and business performance". The training may be on site or elsewhere. Employers are under no obligation to meet an employee's request for time off (and can turn down requests provided they have a sound business reason for doing so) and, even where it is granted, there is no requirement for the employer to pay the cost of the training. The right is intended to be extended to employees of smaller businesses, from April 2011.

Sick leave - holiday

In the case of Shah v First West Yorkshire Ltd, Mr Shah took three months off work after breaking his ankle. He had booked four weeks leave within that 3 month period and asked to reschedule his holiday, but his employer refused on the basis that this meant it would fall into the next holiday year.

The Working Time Regulations provide that holiday may only be taken in the leave year in respect of which it is due. This conflicts with European Union Law, which allows holiday to be carried over where illness prevents an employee from taking it in the leave year. Following the precedent set in EBR Attridge Law v Coleman , the Employment Tribunal took the decision to read the Regulations as if they complied with European Union Law and found that if sickness and holiday coincide, then the holiday can be carried forward to the next holiday year.

Trust and Confidence undermined/ gross misconduct

In the case of Dunn v AAH Ltd, an employee had failed to follow instructions to report on problems of risk within the operations of his company to group headquarters in Germany. This neglect meant that he had denied the group headquarters the opportunity to assess the risk for themselves. The Court of Appeal decided that where an employee has undermined the trust and confidence at the heart of a contract of employment in this way, an employer should no longer be required to retain the employee in his employment. In these circumstances, the employer is entitled to accept that the contract for employment has been repudiated and it is therefore permitted to terminate the contract. It was held that the employee had been properly dismissed for gross misconduct.

Repudiatory breach of contract cannot be remedied

In the case of Buckland v Bournemouth University, Professor Buckland became involved in an argument with the University regarding the remarking and criticism of scripts he had originally marked. An enquiry exonerated him but, by that stage, he was refusing to work with some colleagues who had been involved in the marking process. He subsequently resigned and claimed constructive unfair dismissal, on the basis that the unfair criticisms of his marking had destroyed the necessary trust and confidence that must exist between employer and employee. An employment tribunal found that the University, in approving the amended marks without consulting the Professor, had fundamentally breached the contract of employment by undermining the relationship of trust.

The University argued that the subsequent enquiry and findings in favour of the Professor remedied any breach, before he had accepted it and resigned. The matter wound its way to the Court of Appeal, which found in the Professor's favour. In short, once a breach of contract has occurred, there is no way of remedying it and an employee may successfully claim constructive unfair dismissal, provided the breach is accepted and resignation takes place in good time. In this case, the Professor's status had been undermined and, having accepted during the grievance process that this was the case, the University could not seek to justify and remedy the breach of contract.

Employers need to think carefully about how they deal with grievance complaints, where there is a possibility that the complainant may resign in any event and claim constructive unfair dismissal. Employers need to be particularly wary of accepting that there has been a breach of contract, as the employee may then use that as an admission in subsequent tribunal proceedings.

And Finally...

After the BA employees' strike last month, employees who work for Spanish airline Air Comet are bringing attention to their claim that they haven't been paid for 8 months work in a different way (and this is not an April Fool!). A group of flight attendants have decided to have themselves photographed naked, posing provocatively in and outside airline cabins (and in one case on top of the jet turbine). They are also selling the calendars to the public (18 Euros from all good stockists). A novel approach to negotiation, but one which seems to be quite popular for some reason. Adriana Ricardo (Miss August) said "I think it’s a different and elegant way of highlighting our plight. The rest of our colleagues are completely behind us"....


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