reasonable for employee to reject alternatives to redundancy which would have been accepted by a reasonable employee

Is it reasonable for someone to refuse a job offer as an alternative to redundancy if a reasonable person would have accepted the job offered? Yes, according to the Employment Appeal Tribunal in Readman v Devon Primary Care Trust.
Mrs Readman was at risk of being made redundant by her employer and was offered three posts as alternatives to redundancy. Two of them were at a lower grade and the other was at an equivalent grade. She tried one of the lower grade jobs for a four-week statutory trial period but she resigned from this and claimed a redundancy payment.
Instead she was offered the equivalent grade position as an alternative to redundancy. She was asked to accept the offer and, if she did not do so, the Trust would decide whether to make a redundancy payment or not, based on whether her refusal to take the job was unreasonable.
Critically Mrs Readman began her nursing career in 1976 and she had worked as a community nurse since 1985. The alternative job at an equivalent grade was as a Modern Matron and would require her to work in a hospital setting. She did not wish to do so. The Trust decided that her refusal of the job offer was unreasonable and therefore declined to make a redundancy payment.
The employment tribunal therefore had to decide:
(1) whether the offer of employment was an offer of suitable employment, and
(2) whether the employee had unreasonably refused that offer.


unfair dismissal qualifying period change will not be retrospective

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.


TUC rails against "chequebook justice" in tribunals

In a widely reported speech made on 20 January, TUC general secretary Brendan Barber has launched a vigorous attack on what he has called "chequebook justice" as a result of the government’s plans to introduce fees for employment tribunal proceedings.

Under the proposals claimants will have to pay an initial fee on commencement of proceedings of between £150 and £250. There will be an additional fee of £250 to £1250 if the matter goes to a hearing with a potential award of over £30,000, or £200 to £600 if compensation is limited to a maximum £30,000. Fees for discrimination claims will be as much as £1750. Many have commented that expecting people who have just lost their jobs to pay fees in order to pursue claims of unfair dismissal or discrimination is rather perverse. On the other hand, according to Department of Justice minister Jonathan Djanogly, the latest figures show that the employment tribunals service costs the taxpayer £84 million per annum.


extended parental leave to be postponed for one year

It had been expected that the government would implement updated provisions of the Parental Leave Directive requiring member states (if they had not already done so) to extend the period of unpaid parental leave available to parents by 5 March this year.

Our current Regulations provide that, once an employee has completed one year’s employment with an employer, he or she can take up to 13 weeks’ unpaid parental leave for each child born or adopted. The leave can be taken at any time up to the child’s fifth birthday (or five years after placement in the case of adoption).


BIS launches mediation trials but are they necessary?

On 23 January the Employment Relations Minister, Edward Davey, announced a pilot scheme for regional mediation networks for SMEs.

This has resulted from the government’s Resolving Workplace Disputes consultation which opened with the consultation document in January 2011 and closed with the government’s response in November 2011.

Located in Cambridge and Manchester, BIS will fund mediation training for employees from a group of 24 SMEs in each of the pilot areas. A network of trained mediators will be available to provide mediation to other organisations with a view to resolving workplace disputes without the need for employment tribunal proceedings.


a right to strike?

Technically, there is no such thing in British law as a right to strike. The right is not to suffer a detriment as a result of taking part in a strike, provided the strike has been properly called. So, contrary to anything Mr Clarkson of the jeans and jacket combo might say, provided that proper ballots are held and notices given, workers are perfectly entitled to withdraw their labour to further a dispute regarding terms or conditions of or affecting employment.
If a dispute arises, it’s important to meet with representatives of your employees as soon as possible in order to try to resolve the situation. The initial meeting should be to define the cause of the dispute, to clarify who speaks for which side and to explore what options are available to resolve the conflict.
For a dispute to be lawful it must be a ‘trade dispute’. This means it must be a dispute between workers and their own employer and it must be wholly concerned about employment related matters, e.g. pay, working conditions, jobs, discipline etc. A trade union is legally responsible for organising industrial action and it is only legal if the trade union authorises or endorses the action. Authorisation must take place before the industrial action starts. A strike ballot should not take place until any agreed procedures have been completed and all other means of resolving the dispute have been looked at. Employers can take legal action against any trade union which calls for strike action before a secret ballot has taken place.


vicarious liability extended to non-employees

Sometimes respondents in employment cases raise arguments in their defence which, although perfectly arguable in law, do not reflect particularly well on them. One of these is the defence, in a discrimination claim, that any other employee would have been treated just as badly. JGE v (1) The English Province of Our Lady of Charity (2) Trustees of Portsmouth RC Diocesan Trust [2011] is an example of another type of defence which some might think leaves a nasty taste in the mouth. It concerns the concept of vicarious liability – where an employer can be found liable for wrongs committed by its employees in the course of their employment. The case concerned allegations of sexual abuse of a young child by a Catholic priest. When the claimant sought to hold the Diocese in which the priest worked responsible for his actions, the counter argument was that he was not an employee of the church, and it therefore fell outside the scope of vicarious liability. Generally speaking, in the past, the clergy of both the Catholic church and the Church of England have not been regarded as employees, in that they do not have a contractual relationship with the relevant churches, although nonconformist ministers are generally employed under a contract of employment.


holiday pay for long term sickness absentees

Two recent cases have shed some helpful light on the implications of the decision in Stringer and ors v HMRC which established that holiday pay continues to accrue while employees are on long term sick leave and are entitled to be paid for it.
First, in KHS AG v Schulte [2011] EUEJC C214/10 the European Court of Justice has confirmed that it is permissible for member states to impose a cut-off on the carry forward of unused holiday allowances for employees on long term sickness leave. In the particular German case the cut-off under the relevant collective agreement was 15 months, but the opinion of the Advocate General given in August suggests that on the same principle a cut-off period of 18 months (as recommended by the International Labour Organisation) would also be acceptable. This will no doubt be taken into account in the amendments needed to the Working Time Regulations to reflect the earlier decisions on accrual.


consultation on consultation

Two areas have been flagged for possible changes in the future. There are “calls for evidence” on both TUPE and redundancy consultation processes.
Under the current Regulations TUPE places an obligation on both the transferor and transferee to provide information to, and to consult with, the representatives of their respective employees who may be affected by the transfer.
This can include employees who are not part of the transfer, but who are affected by the transfer.
TUPE also has the effect of transferring trade union recognition agreements, as long as the transferring group of employees maintains a distinct identify from the rest of the transferee’s business.
The transferor and transferee must inform and consult the recognised trade union. If there is no recognised trade union, the employees must be given the opportunity to elect their own representatives.


compromise agreements – the law of unintended consequences

The government seemed to find it mildly surprising that over half the respondents to its consultation used compromise agreements often; most of those directly involved with employment law in practice would not. But there is a cost involved for employers every time one is used, especially since the decision in Hinton v University of East London CA (2005 EWCA, Civ 532) which had a big impact on drafting practice and then the advent of s.147 of the Equality Act 2010, which undoubtedly had unintended consequences, even though the government stoutly maintains that it is “fit for purpose”.
Hinton made it clear that compromise agreements must identify each and every claim that is being settled – thus the tendency to include a long list of possible claims in agreements to make sure that nothing is missed out, or the need to spend a lot of time identifying all possible claims to ensure that all necessary “i”s are dotted and “t”s crossed – meaning that agreements are generally cumbersome, and sometimes expensive to draft.