Employment solicitors have been eagerly awaiting a Court of Appeal case on whether employees who have lots of disability-related absence should be given an easier ride in dismissals for absence.
Ms Griffiths, an employee with 30 years’ service, was off for 62 days straight with illness, during which she was diagnosed with a disability (post viral fatigue and fibromyalgia). See our article on disability discrimination for details of what this means.
As a result of this absence (plus a further few days for non-disability absence), her employer gave her a warning and she brought a claim for disability discrimination, claiming that the employer should make the reasonable adjustment of ignoring her disability absence so that she would not be under the threat of dismissal in the future. She also claimed that the warning was disability “arising from” her disability, which is a related concept. She was asking for an extension of the trigger in her case from 8 days in a rolling year to 20 days.
Her employer defended the claim on the basis that its policy envisaged that a manager had the discretion to make adjustments to the trigger points in cases of disability.
She eventually lost her case, but the judgment does help employees in a similar situation.
The case is complicated to understand but the Court of Appeal judgment boils down to this:
Does an attendance policy treat disabled and non-disabled employees differently?
Yes, said the Court of Appeal, overturning previous decisions. Caselaw had taken an approach that was too restrictive by saying that an attendance policy treats the disabled better if it allows trigger adjustments to be made. It doesn’t. A policy that an employee must maintain a certain level of attendance not to be subject to disciplinary sanction treats disabled people worse, since they are more likely to be off sick.
Is allowing more time off a “step to avoid disadvantage”?
The employer argued that allowing more time off was the opposite of a step allowing an employee to work. The Court of Appeal rejected this as too clever. It is a step allowing an employee time off temporarily with the aim of keeping them in work in the longer-term.
Was Ms Griffiths’ proposed extension of the trigger reasonable?
An employer only has to make ‘reasonable’ adjustments. The Court of Appeal reminded us that this is a decision for the Employment Tribunal, not for the Court of Appeal. It said that an employer is entitled to say, after a pattern of illness absence, that it should not have to accommodate absences any longer and can take into account the whole of the employee’s absence record (including disability absence) when making that decision.
It said that where a doctor reports that a disabled employee is likely to have only limited and occasional absences an extension of the trigger point, may be reasonable as an adjustment. Employees with more serious conditions should not expect this indulgence though.
A ray of hope
It then said something that is not so easy to understand. It pointed out that disability discrimination law is not just about reasonable adjustments but also about discrimination ‘arising from’ disability. An employer may not have a duty to extend a trigger point for an employee who takes unreasonable absence, but it may still be a breach of the law to dismiss for it!
“It would be open to a tribunal to find that the dismissal for disability-related absences was discrimination arising out of disability if it was not proportionate to dismiss”
We don’t understand what circumstances the Court of Appeal hand in mind when envisaging that it would be unreasonable to extend a trigger point but not proportionate to dismiss. Proportionality means not doing something (eg dismissing) when there is another option that would meet the employer’s aim of having a stable workforce. This seems to us the same thing really as acting reasonably.
Ms Griffiths lost her case because she was asking for too great an extension to the trigger point. Employers should make extensions to trigger points for disabled employees but they don’t need to be large extensions, especially in cases of ongoing absence (as opposed to long one-off absences in a diagnosis period).
Confusingly for employment solicitors, the Court of Appeal left it open to employees to claim compensation for disability-related dismissals if they are dismissed at the end of an attendance process and gave no guidance on when this might be the case. We can see an argument that it might be disproportionate to dismiss in a case where the employer’s (reasonable) failure to extend a trigger point has worsened a condition and caused an employee to take more time off than they would have done. Other than that, we shall have to see what subsequent caselaw brings.
Case report: Griffiths v DWPRead More
As the year end approaches, we have listed the employment law changes that we’ll see in 2016:
- April 1 A compulsory minimum wage premium for all staff over 25 years of age comes into force referred to as the ‘national living wage. Employees who work for 2 or more hours a day for 8 or more consecutive weeks must be paid at least £7.20.
- April 1 Those earning over £100,000 GBP in the public sector will not be keep exit packages if returning to the area in the public sector within 12 months.
- April 6 Skilled migrant workers need to earn at least £35,000.
- April 6 Employer national insurance contributions for under 25 are abolished up to the upper earnings limit (£815).
- April 6 Income tax personal allowance increases from £10,600 to £11,000. The threshold for higher rate tax pay rate rises from £42,385 to £43,000.
- April 6 The ability to contract out of the state second pension ends.
- At some point: All employers with over 250 employees (not just those in the public sector) will have to carry out an equal pay review and publish their gender pay gap. The details are still being worked out.
- To be confirmed: Caste to be added as a form of discrimination
We have just settled a whistleblowing case for a hard-working care manager who complained about her working hours and inadequate training at her workplace.
The employer denied that she had made any complaints (so it fell to a question of her word against theirs) and denied that they had dismissed her because of them, claiming that it dismissed her because of poor performance and redundancy (despite there not being much evidence of this).
She couldn’t bring an unfair dismissal case, because she didn’t have the two years’ service you need to do this.
The case settled on the day before the hearing for about 75% of what she was seeking. We advised that though she had a strong case, no case is 100% certain and we negotiated the employer up to £9,000 from a first offer of only £3,000 at the start of the case.
She would have received more compensation, but she had managed to minimise her losses by replacing her income well. Had she not done this, she might have been criticised by a tribunal.
This was a case that we handled on a no-win, no-fee basis so the risk was on us, since she didn’t have the money to fund the case herself.Read More
A teacher has won over £100k and lost much of it in an employment tribunal claim and held onto it on appeal.
After several years of unimpeachable service and good results, a new manager, that she described as vindictive, came along and took a dislike to her. The manager said that the teacher’s teaching was poor, when there was no evidence for this.
She resigned, agreeing terms, which included a payoff and a good reference.
But the head-teacher only gave a basic reference, which the teacher said was discriminatory.
She claimed unfair constructive dismissal and age discrimination, on the grounds that the allegations were trumped-up because she was expensive (being more experienced than younger colleagues).
Faced with a £108,000 payout, the employer appealed on a number of grounds, including that the employment tribunal was wrong to give her the benefit of the doubt in her claim that the academy had a practice of selecting the most expensive teachers to dismiss. Having such a practice would be indirectly discriminatory on the ground of age.
There are employment tribunal rules that give the benefit of the doubt to employees bringing discrimination claims, because employers who discriminate will never confess to it and rarely keep records of wrongdoing.
She lost out on the discrimination claim because the tribunal made a mistake of law – it gave her the benefit of the doubt on the question of whether the academy had adopted a practice of getting rid of the most experienced teachers. The employment appeal tribunal said that this was something that an employee needs to prove. Once she does this, then the tribunal will presume (unless the employer can show otherwise) that the decision was taken on the ground of age.
She held onto victory, though only for unfair discrimination, which carries a cap of a year’s salary, which for her would be between £40k and £50k plus a ‘basic award’ based on her length of service. We estimate that her compensation would have been slashed by at least a quarter because of this decision.
This case goes to show that the laws on discrimination are complicated and that even tribunals can get the details wrong.
Case report: Dippenaar v Bethnal Green Academy.Read More
Acas has published some new guidance on zero hours contracts.
This is the term for casual employment agreements where an employer needs work done on an ‘ad-hoc’ basis, perhaps from a bank of people prepared to do it. Employers contact someone from the bank of workers as and when the need arises. In the contract, the number of working hours is undefined.
These contracts have attracted the reputation of helping employers to escape from their employment responsibilities as they are an alternative that is more flexible to the employer than offering overtime, annualised hours, recruiting on a fixed term basis and using agency staff.
Yet they are sensibly used when an employer has an unpredictable level of work, including:
- The initial phase of a new business
- Seasonal work (eg the Christmas rush)
- Unexpected sickness
- Special events
The guidance reminds us that employees on zero hours contract are entitled to statutory rights that include national minimum wage, paid annual leave, rest breaks and protection from discrimination.
It reminds employers that they should provide employment particulars. Job ads should convey that the number of working hours is not guaranteed and the work may cease if the demand falls.
It discourages against cancelling work arbitrarily or with insufficient notice. The contract should state under what circumstances work could be cancelled and when the employee should be told and, in the case of a cancellation, whether there would be any compensation.
Finally, the guidance reminds employers that clauses prohibiting individuals from taking up any other jobs are banned. These are called exclusivity clauses and they hit the news recently, which may have prompted this guidance.Read More
This weekend, the clocks go back an hour, giving most of us an extra hour in bed. But workers on late shifts such as bar staff and factory workers may find that this 2am change happens mid-shift. Do they have to work this extra hour under UK employment law? Time for your favourite Solihull employment solicitors to ‘chime in’.
The clock change works by winding the clock back from 2am to 1am. Your employment contract may say that you work x hours a week or that you work from y o’clock to z o’clock. Logically, if it says the latter, you’d expect that you have to work between those times and that means working the extra hour.
Here are the principles that apply in UK employment law:
- Unless your contract gives paid overtime you don’t have a right to be paid for extra time that you work, which many employees find surprising to learn.
- This doesn’t apply if you are on or near the minimum wage because you must be paid for actual time that you work, measured by a stopwatch, not by the clock.
- And there may be implications under the Working Time Regulations, which contain obligations to do with maximum night shift lengths, break entitlements and weekly hours, again measured by the stopwatch.
- Subject to that, there is no caselaw on whether you can be required to clock off at the adjusted time (working your extra hour) , so it’s up to the employer and employee to work it out.
An employer should have rules that apply fairly. We have heard of some employers that steal time by clocking staff in by one clock and clocking them out by another (that runs slower). They may try the same trick (applying inconsistent rules) for daylight saving changes. If they failed to fix this after complaints, it could possibly be a breach of the employment contract that allows employees to resign and claim unfair constructive dismissal.
But, if there is no right to paid overtime in the contract, a win is unlikely for the employee, as it could be seen as requiring unpaid overtime, which is legal. It may be unfair, but employees are not entitled to be treated fairly at work. They are entitled not to have the ‘trust and confidence’ in the employment relationship breached; underhand behaviour would do this, but an unfair policy, if overt, wouldn’t.
That assumes that the employer ‘steals’ time by having employer-friendly rules at both times of the year (spring and autumn). If it applies the same rule (stopwatch or clock-face) at both times of the year, then it’s not even unfair.
Applying the same rule is obviously best for employee relations because things will even out with time, though there will be some employees who feel hard done by if they are caught on the wrong side of the rule in successive seasons because of the way the rosters work out.
If an employee makes an issue of it by leaving after their eight hour shift (an hour early by the clock), they are likely to be disciplined with a warning or (following repeated warnings, dismissal) and this is likely to be fair.
So, the answer to the question is “yes”, employees can lose out on working hours at this time of year, but a sensible employer will apply a fair and consistent rule around clock changes and not fall foul of the regulations on working time and minimum pay.Read More
Note: this post was originally from 2014. The 2015 update is in blue below
A new era for Hatton James took hold in June 2014. We went from paper to the digital world of the Cloud.
Our staff have great deskspace and we have freed up room to take on more staff.
We like to think that we have always been ahead of the curve in terms of Solihull law firms. But this leap forward took us into a new era.
Following a carefully-choreographed plan, we took a number of steps that ensure we were up to date with modern technology could deliver a better service to our clients.
- We threw away our filing cabinets and uploaded our documents, correspondence and employment tribunal paperwork into the Cloud.
- Archived papers are being imaged and stored electronically.
- Data is protected with 256-bit AES encryption (which would take longer than the age of the universe to crack by brute-force).
- We don’t send faxes any more. We can receive them (via software) if we have to.
- We use a secure download service to send hearing bundles.
- Letters in are scanned and stored in our Cloud-based filing system immediately.
- Our staff have access to work emails outside the office (naturally).
- We are taking office telephone calls outside normal business hours and use a 24 hour virtual receptionist.
- We’ve taken on an IT specialist to work further on all of this in the future.
- We moved from POTS (plain old telephone system) to VOIP.
Update one year later:
- When choosing a secure download service, avoid sites that expire downloads after a short period – recipients don’t always access our bundles when we email the link, then ask for another one a few weeks later, causing extra uploading work.
- Our internet speed didn’t support VOIP. We shouldn’t have believed our provider’s assessment that it would. We moved to 8×8’s platform (through who2 – fantastic customer care). It routes incoming calls to our mobiles. Outgoing calls are made over our mobiles, which send our office number. We threw away our deskphones.
- There will be LOTS of teething problems with a new phone system. One tiny, obscure setting on your mobile device can cause days of not being able to make calls. You’ll need notes of which settings to use, oodles of patience and possibly counselling.
- A small business (or a larger one, if people don’t work on the same files) can get up and running on the Cloud with just Dropbox for storage/backup and Boxcryptor for encryption. Because you’re not file-sharing over a traditional network, if two people work on the same file, a conflicted copy is created, which is a headache. Microsoft Office in conjunction with OneDrive cloud storage or Google Docs with Google Drive storage allows two or more people to access the same file – you’ll see everyone else who is in the file editing away at the same time.
- …and therefore this solution is inappropriate for databases and outlook email .pst files. Keep these on a local network or your hard drive if you have to (we moved to other online solutions instead).
- Correspondence is best named in the yymmdd from xxx to yyy format. yymmdd keeps them in date order when sorted by name.
- Follow a consistent naming convention. Eg with correspondence, “from xxx to yyy” generic (eg “from client to us” rather than “from Joanne to HJ”) lets you run the same search criteria each time.
- No need for subfolders in the correspondence folder – the search will create virtual folders as you go (eg in Win7, “system.filename:from client to us”).
- When drafting, append _01, _02 to each draft to keep successive versions of the same document together and sorted correctly.
- Microsoft licensing is confusing. Office 365 is a pain to navigate. We reverted to disc technology after trying SaSS (software as a service).
- The reasons we will always stick to paid Office software instead of free open source are 1. the reviewing feature; 2. ability to use vba trickery; 3. the cost saving is negligible. 4. the reviewing feature; we use it all the time.
Printing, pages and PDFs
- We mostly use pdf bundles and our only substantial paperwork is hearing bundles at the end of a case. No need to pay for pdf creation software – free utilities are out there and Adobe has made Acrobat 7 available free, which still works great.
- A-pdf number will put page numbers on your pdf bundles using software at the click of a button.
- If you don’t outsource your shredding get a commercial shredder that takes 20+ pages at a time. All shredders are prone to jamming; smaller ones especially so.
- Use Google Cloud print to create a printer network if you’re not on a physical network (print from any computer to any printer as long as it is connected to a computer and both are connected to the internet).
Working with others
- Share screens when discussing a document, with both colleagues and with clients. We recommend Teamviewer.
- Consider refusing to work for clients who don’t use email.
- Two screens are better than one. Compare two documents at once. Or keep emails always visible on the second screen. Or research on one while you draft on another.
- When you have two screens, you may not be able to resist a third.
- If you acquire a fourth, you’ve probably gone too far.
- On a modern laptop, the easiest way to get a third monitor is with a usb3 adapter, otherwise you’ll need an external graphics card. If you have a pc, installing up to four monitors is easily done with an internal quad graphics card and two twin adapters.
- If you don’t already, learn to touch-type There are plenty of online courses.
- Use a bluetooth headset to free your hands to type notes while you’re on the phone.
and most annoyingly of all…
- GP surgeries will never email documents but insist on faxing them. I don’t foresee this changing in my lifetime!
At Hatton James we like the whistleblowing provisions in UK employment law.
They provide a means for employees with less than two years’ service to bring employment tribunal claims for unfair dismissal even though they have less than two years service. And it provides another route to compensation for employees with two years’ service.
The coalition government tried to swing the law towards the employer by tweaking the hurdles that an employee has to jump through to bring a whistleblowing claim (public interest disclosure in the legal jargon).
This tweak was to make the employee prove that they acted “in the public interest”. This means that that they had to be thinking of someone other than themselves when they complained about, say, unfair management action. Before this, the employee could use whistleblowing laws to their advantage if they could just show that the employer’s behaviour fell below standard in his own case and they complained about this. The Government thought that this tweak would weed out a lot of complaints.
But clearly, the judges don’t like this tweak and are trying to reduce its impact.
The Employment Appeals Tribunal has held, in two recent cases, that a minimal amount of ‘public interest’ will do.
In one case, an employee who complained that the bonus figures for him and 100 colleagues were being reduced because the employer was not presenting sales figures fairly. The employment tribunal held that the disclosure was made with a reasonable belief that it was ‘in the public interest’, and the Employment Appeal Tribunal agreed.
In the other case four lorry drivers got together to complain that overtime was not being distributed fairly.
Unfortunately for employees, a dispute affecting an individual will not normally satisfy the “public interest test” but a disclosure relating to a relatively small group of people may do. We currently have two cases where we are arguing that the employees who complained about their treatment at the hands of the employer shouldn’t have their claims dismissed, on the grounds that the employer was acting the same way with colleagues.
In future, we will encourage employees who may have future employment tribunal claims to get together to make complaints; there is safety in numbers.Read More
In April 2015 UK employment law saw the introduction of shared maternity/paternity/parental leave. This enables working mothers to share their maternity leave and pay with their spouses. This new flexible working right is to be extended to grandparents by 2018.
In a child’s first year, parents have the right to take shared parental leave and employers must ensure that employees are not penalised for using their entitlement. The amount of leave available for the spouse is the mother’s entitlement to maternity/adoption leave, less maternity/adoption leave actually taken. Acas explains the system in a handy guidance note.
George Osborne has now announced that the government will adopt the Labour propsal of extending this to grandparents as well. It should be implemented by 2018. The policy will go out to consultation in the first half of 2016.
It has been nicknamed “granny leave” by the media. At the moment it looks set to be extended to one nominated grandparent and paid up to 37 weeks at £139.58 a week or 90% of average weekly earnings, whichever is lower.
The government hope that this policy would result in:
- Mothers returning to work more quickly. Research shows that more than half of mothers rely on the grandparents for childcare especially when they first return to the work. One in ten grandparents are not able to help out because either they were refused leave or didn’t think it would be granted.
- More grandparents remaining employed who otherwise would have left work or reduced their working hours.
- Single mothers and couples where one is self-employed working more hours.
This policy will place an extra burden on HR departments. They may want to update handbooks, create forms, create more records and so on. It remains to be seen how employers will be allowed to ask for proof of birth and the grandparental relationship and other details remain to be decided.Read More
There are often thorny questions about whether a worker is ‘working’ for the purposes of the Working Time Regulations and the National Minimum Wage Act. They include how to treat on-call workers and those who live at their place of work.
We have advised employers and workers in the fields of live-in residential care, caretakers, priests who live on the premises and so on. There is a large amount of caselaw on these questions, making it a difficult area. The case-law shows that just being present at the workplace doesn’t itself necessarily mean an employee is ‘working’. And you don’t necessarily get the same answer for the WTR and the NMW.
The latest case discusses what are working hours for the purposes of the NMW where a care home employee sleeps overnight at his workplace (so as to be able to wake to deal with emergencies).
A worker had to be in the on-site accommodation from 10pm until 7am and was allowed to sleep during that time. However, he had to respond to any request for help by the night care worker on duty. In return he was provided with free accommodation and utilities plus £90 per week. In practice he was very rarely asked to help out. He sought employment tribunal compensation for all the hours he was required to be available to work times the NMW hourly rate.
The Employment Appeal Tribunal has held that he is only entitled to be paid for the hours during which he is awake and working.
There is an exception for those who live in a residential home where they are employed, and the time in question was time he was entitled to spend at home. Only time spent when awake for the purpose of working count as working hours for the NMW.
It was relevant that he wasn’t the only worker on duty and that these were really emergencies. If this wasn’t the case, then it could really be the case that he was legally ‘working’, though actually sleeping.
The employee in this case had an employment tribunal schedule of loss that amounted to £240k, so there was a lot at stake.
Case report: Shannon v Clifton House ResidentialRead More