From 1 April the standard rate of statutory maternity, paternity and adoption pay increases from £128.73 to £135.45 per week.
From 6 April the standard rate of statutory sick pay increases from £81.60 to £85.85 per week. It is also expected that the basic state pension will increase from £102.15 to £107.45 in April.
The maximum unfair dismissal award is to increase from £68,400 to £72,300 Continue reading
The decision of the Employment Appeal Tribunal in RBS v Donaghay has clarified a question which may not be obvious at the inception of disciplinary proceedings but often emerges in the course of the process: if an employee is to be dismissed for misconduct, does that conduct need to be what would be generally regarded as "reprehensible"? There is also a chain of case law which makes the question relevant in such circumstances.
According to the Oxford English Dictionary "reprehensible" means "deserving censure or condemnation".
As an aside, the summary of the judgment posted on the Employment Appeals Tribunal website includes the word "esto" which is an obscure Scottish legal term (the employment tribunal was in Glasgow) and means "a technical term used in written pleadings used to introduce a secondary line of defence which accepts, only for the sake of argument, facts which are still disputed in the primary defence".
After a little diversion to deal with semantics, Mr Donaghay was a customer services adviser who was in a relationship and lived with another RBS employee, known in the proceedings as "LC". The facts of the case are set out in the decision:
"On Saturday 3 January 2009, the Claimant went out drinking with friends whilst LC remained in the flat. He returned late in the evening or in the early hours of 4 January. An argument took place between the Claimant and LC which culminated in him admittedly pushing her so as to cause her to fall onto the sofa. He then left but, having done so, tried to get back into the flat and caused a disturbance by shouting, swearing and kicking the front door so as to force his way back into the flat. Continue reading
As we reported last month, the qualifying period in order to bring a claim of unfair dismissal is being restored to two years. Although the change will come into force this April it will only apply to employees whose employment commences on or after 6 April 2012. It will therefore take some time for the change to have a practical impact for employers.
For example, someone who commences employment on 5 April 2012 will secure protection from unfair dismissal from 5 April 2013, whereas someone who commences employment on 6 April will not achieve the same level of protection until 6 April 2014.
However, it is vitally important for employers to remember that there are unfair dismissal claims for which there is no qualifying period so that protection from unfair dismissal is available from day one. These are chiefly claims resulting from the assertion of statutory rights and those which can lead to findings of automatically unfair dismissal. Subscribers should check our employment law guide for details of those unfair dismissal claims in respect of which the qualifying period does not apply.
It is equally important to remember that the qualifying period only applies to unfair dismissal claims. Continue reading
The top headline news this month has to be the mixed bag of employment law proposals announced as “the most radical reform to the employment law system for decades“. And what a mixed bag it is – everything from tidying up the unintended consequences of statutory drafting to a root and branch review of employment tribunal procedure by way of revisiting some familiar old ideas. Opinion is, of course, divided as to how effective the proposals will be, not always along traditional employer/employee lines, but some at least seem welcome in all quarters – such as the introduction of a portable CRB check.
Many of the measures announced are aimed at reducing the numbers of cases going into the employment tribunal system, speeding up resolution of cases once they get there, and of course keeping costs down – for the government, rather than for employers or employees. Continue reading
A helpful case for employers, but one that should be treated with caution, deals with the issue of whether a dismissal which is purportedly for misconduct can be found to be fair even if the tribunal holds it is for capability and conduct (both potentially fair reasons for dismissal under section 98(2) Employment Rights Act 1996).
It is a common problem for employers whether, faced with an employee’s incompetence or negligence, they should opt for a capability or conduct procedure and/or dismissal. Often, the behaviour in question overlaps both conduct and behaviour. The soundest advice is to cover both bases although, of course, in the case of a capability dismissal it is expected that a different kind of procedure with different expectations and support will be followed. An early EAT decision in Hotson v Wisbech Conservative Club made clear that an employer is not tied to the label he happens to put on particular facts, nor is he prevented from running the two as alternatives. However, it is clearly wise to ensure that both capability and conduct are considered at an early stage to ensure that no argument can be progressed that prejudice has been caused to an employee.
In Screene v Seatwave Ltd, Seatwave was the victim of a large scale fraud and Mr Screene was the unfortunate financial controller who failed to detect the fraudulent transactions. Mr Screene was called to a disciplinary hearing to consider three allegations, the central one being that he "failed to identify or address large amounts of cash leaving the German bank account totalling to roughly 1.7m euros within several weeks". The next day Seatwave wrote to Mr Screene "to confirm the decision to summarily dismiss you on the grounds of Gross Misconduct". The letter continued: "you have been negligent in the completion of your duties as follows…an absolute failure to complete non UK bank reconciliations leading to significant financial losses for the company". It concluded: "your serious negligence in the performance of your duties…clearly justifies Summary Dismissal". Continue reading
A remarkable kite-flying exercise emerged today with widespread news coverage of the report about employment law produced by venture capitalist Adrian Beecroft at the request of David Cameron. With headlines such as “Scrap unfair dismissal claims for lazy workers – report” (BBC) and “Give firms freedom to sack unproductive workers, leaked Downing Street report advises” (Telegraph), the report suggests employers could dismiss employees without giving a reason, by using a “Compulsory No Fault Dismissal System”. According to the report, “the employee should be given a chance to argue his or her case, and to suggest (but not demand) that they be given time to improve or be transferred to a less demanding job at a lower wage. If no agreement could be reached, the employee would receive the same payment they would get if they had been made redundant”. So employers would become unaccountable (save for the equivalent of a redundancy payment) even if the action taken was blatantly unfair and unjustified. Incidentally, if that option is available, why would any employers follow the requirements for a full redundancy process if they can be safely circumvented? The report refers to Britain’s “terrible” employment laws and suggests that they are undermining economic growth. The report is fundamentally wrong on two counts. Continue reading
The case of M-Choice UK Limited -v- Aalders, which was recently considered by the Employment Appeal Tribunal, demonstrates the complexities which can arise when trying to establish when someone was dismissed. The date of termination can be vital in determining whether or not a claim of unfar dismissal can be maintained.
Ms Aalders commenced employment with M-Choice on 1 February 2010. She was entitled to six months’ notice of termination of employment. On 26 July 2010 she was sent a letter which purported to give notice of termination, stating “as from 26 July 2010, ending the work relationship as per (sic) 1 February 2011 at the latest”. Continue reading
In the current economic climate, it is an unfortunate fact of life that employees are facing numerous constraints concerning pay and benefits. Pay freezes are commonplace and several councils have made the news by requiring employees to accept pay cuts or face dismissal. As a general principle, the unilateral imposition of material contract variations which are detrimental to employees can entitle the affected employees to resign and claim breach of contract and constructive unfair dismissal.
In a decision which will be welcomed by employers, the EAT has recently clarified that when deciding whether or not dismissal of an employee for refusing to accept a pay cut does constitute “unfair dismissal”, the question to be considered is NOT the reasonableness of the stance adopted by the employee. Rather it is whether the employer acted reasonably in dismissing the employee for refusing to do so. Continue reading
Jonathan Jones was dismissed by his employer, Jewson, five months after he suffered a stroke. He was the branch manager of their Cardigan branch and had worked for the company for 22 years. His employer relied on incapacity as a potentially fair reason for dismissal. Unfair dismissal law provides that employment may be terminated on the ground of ill-health incapacity if it becomes clear that the employee is unlikely to be able to return to work in the reasonably foreseable future. Continue reading
Cases concerning the when and how of employee use of social networking sites (such as Twitter and Facebook) are now beginning to reach the employment tribunals.
No new legal principles are involved in deciding when and whether it is appropriate for an employer to discipline or even dismiss an employee for inappropriate use of these sites. But because the subject is likely to come up with increasing frequency it may be useful to draw attention to a couple of recent cases.
In the first (local) case an employment tribunal found that dismissal was within the band of reasonable responses open to pub chain Wetherspoons after it dismissed a shift manager at one of its pubs in Cheshire because she had posted insalubrious comments about two customers on Facebook. The customers concerned had abused the manager, a Miss Preece, when she was on duty. The abuse had continued afterwards in that Miss Preece was later subjected to anonymous telephone calls, including one in which she was told "get your f*cking P45 ready because you are out of here…". An important factor which led the tribunal to rule that the dismissal was fair was that Miss Preece had signed up to Wetherspoon’s formal email and social media policy which included an explicit statement to the effect that disciplinary action could be taken if any comments on Twitter, Facebook etc. should "be found to lower the reputation of the organisation, staff or customers" (Preece v JD Wetherspoons plc Liverpool ET on 18 January 2011).
However in another case a few weeks earlier an employment tribunal held that dismissal was not within the band of reasonable responses open to the Halfords chain of stores. Halfords had disciplined and then dismissed a deputy manager who had posted negative comments on Facebook. Mr Stephens had set up a Facebook page: "Halfords workers against working 3 out of 4 weekends". He sued for unfair dismissal, won and was awarded £11,350 compensation (Stephens v Halfords plc Torquay ET on 3 November 2010).
In this type of case, as in any "misconduct" unfair dismissal case, an employment tribunal will look at whether the employer went through appropriate procedures and will consider whether or not dismissal fell within the range of reasonable responses open to an employer in all the circumstances (and will not substitute its own view of what would have been reasonable). As many HR practitioners are aware, in carrying out this exercise an tribunal will apply three main tests, as follows:
Subscribers should note that we have added a draft social media policy to the library of downloadable documents in the protected area of our website.
