December 2016

Welcome & Happy Christmas

Image credit: Conderton from Bredon Hill, Becky Holmes, Overbury Estate

Hello, we would like to share the latest news within Cluer HR as well as keeping you up to date with developments in the world of HR and employment law as they occur.

It’s all part of the service. We hope you find it useful. Your comments and suggestions are always welcome.

Doctor’s Fit Notes Are Due For Overhaul

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Government has announced plans to overhaul the GP fit note and statutory sick pay, as well as reform the way that disabled people on sick leave are assessed for fitness for work. The aim is to stop people with long-term conditions falling out of work, which costs the NHS about £7 billion per year. Work and pensions secretary Damian Green told Parliament: “In 2010 we inherited a broken system”. Ministers said statutory sick pay will be reviewed to encourage supportive conversations between employers and employees, and support phased returns to work.

The green paper proposes that employees earning less than the statutory sick pay rate of £88.45 per week who returned to work on reduced hours would be able to top up their wages to the statutory sick pay level. The consultation will also consider allowing other health professionals than GPs to sign 8t notes. Ministers say this will help ensure people receive more tailored support.

What are the implications of this?

At the moment, if an employee who has been on long term sick returns to work on temporarily reduced hours, to phase them gently back into the work place, the rules surrounding statutory sick pay (SSP) entitlement often mean that entitlement to SSP ceases, regardless of whether the pay for the hours equates to more than or less than the current statutory sick pay rate. As such some employees see very little motive in returning to work on the lesser hours, pending their ability to work to full capacity, as they often receive very little more than they would in statutory sick pay (depending on their hourly rate of pay and the number of hours on which they return). In some cases where the number of hours for the phased return is very low to start with, and the employee is on minimum wage, they could actually be financially worse off by returning. The green paper proposes that employees earning less than the statutory sick pay rate of £88.45 per week who returned to work on reduced hours would be able to top up their wages to the statutory sick pay level.

Disabled Teacher and Discrimination Claim

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A teacher with cystic fibrosis has won £180,000 compensation after the Employment Appeal Tribunal ruled his employer discriminated against him on the grounds of his disability during his dismissal for a disciplinary offence. Philip Grosset, who was head of English at Joseph Rowntree School in York, was sacked for gross misconduct in 2014 after showing the 18-certificate horror film Halloween to 16-year-old students.

Grosset described his actions as a “poor choice” made at a time of “extreme stress and ill-health”, which did not deserve more than a verbal warning at most. Instead, he was sacked – and the tribunal accepted his argument that the school’s failure to take account of his disability before and during the process amounted to discrimination. Grosset was working long hours at the time, with no allowances made for his disability, the tribunal heard. His previous headteacher made reasonable adjustments such as allowing him to attend medical appointments and offering flexibility over deadlines, but that changed when new headteacher Richard Crane took over.

While Grosset was off work because of stress, Crane discovered that he had shown Halloween to year 11 pupils as part of their coursework. Although no students or parents complained, Grosset faced a disciplinary and was eventually sacked for gross misconduct.

“I was given the sack for a single, one-off offence after a 12-year career in local schools,” said Grosset. “As a middle- aged man with a chronic health condition, my entire career and livelihood had been taken away from me.”

What are the implications of this ruling?

This case shows how giving out ‘unreasonable’ sanctions following a disciplinary process can backfire. Think carefully about the sanction given, take account of the employee’s disciplinary and general record, length of service, actions taken in any previous similar case, the explanations given by the employee and – most important of all – whether the intended disciplinary action is reasonable under the circumstances.

The Importance of Rest Breaks And Working Time Regulations

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Is an employee required to ask for a rest break before claiming to have been refused a rest break? No,held the EAT in Grange v Abellio London.

The Claimant was contracted to work an eight and a half hour shift, which included a half hour break for lunch. He was told that, instead, he should work for eight hours without a break, and leave early. The Claimant made a claim based on section 10 of the Working Time Regulations that he had been refused a rest break, but the employment tribunal held that he had never asked for a rest break and therefore he had never been refused one. The EAT overturned the decision on the grounds that the instruction to work without a rest break could be construed as a refusal, without an explicit request. The EAT disapproved the reasoning of the leading authority of Miles v Linkage Community Trust, and preferred instead the conclusion from the unreported case of Scottish Ambulance Service v Truslove.

What is the message from these tribunals?

It’s that an employee is not required to have asked for a rest break to be able to claim to have been refused a rest break, highlighting the importance of ensuring that your employees have their correct entitlement to breaks and that they take them!

Garden Leave During Redundancy Consultation

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Is a ‘perfunctory and insensitive’ redundancy consultation likely to make a redundancy dismissal unfair? Yes, held the EAT in Thomas v BNP Paribas Real Estate, upholding an appeal against the finding of a fair dismissal. The Claimant had over 40 years’ service, ending up as a Director of the Respondent’s property management division. After a strategic review, the Claimant was put at risk of redundancy and immediately put on ‘garden leave’ and told not to contact clients or colleagues. The Respondent then made a number of procedural errors, including getting the Claimant’s first name wrong in a letter. However, the employment tribunal found that the dismissal was fair.

The EAT quashed the decision, remitting the claim to a different employment tribunal. The EAT criticised the decision to put the Claimant on garden leave and to prohibit contact with colleagues during the consultation period. The EAT found it ‘particularly troubling’ that the employment tribunal had found the manner of consultation perfunctory and insensitive, yet considered that it was reasonable, without saying why. Such a process would not necessarily be unreasonable, and hence unfair, but one would expect to find some form of reasoning from the employment tribunal to explain why matters that gave rise to criticism of the process did not render the consultation unreasonable.

What can we learn from this?

We have often been asked whether an employee can be put on garden leave pending a redundancy consultation period and this is a case in point as to why you should inflict garden leave on the employee during such a time.

Fair Dismissal For Refusing To Work Overtime At Christmas

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In Edwards v Bramble Foods Ltd, the tribunal held that an employer fairly dismissed an employee who refused to do overtime and whose protests at being asked to do so threatened to disrupt the business. A small food company’s busiest period is the eight weeks from mid-September, when it produces and packs goods such as gifts and hampers for Christmas.

Employees’ contracts of employment include a clause requiring them to work extra hours when the business requires. The company decided to formalise its overtime arrangements, which involved asking employees to choose between four and eight Saturday mornings they could work in September and October. While the rest of the workforce agreed to work some Saturdays, Mrs Edwards refused to work on Saturday mornings. Management had a number of “informal chats” with her to explain that, by sharing the workload fairly, the company would be able to meet the demands of the Christmas period.

Mrs Edwards continued to refuse, stating that she spent Saturday mornings with her husband. She was dismissed following a number of complaints from colleagues about her behaviour, which included that she had mocked those who had agreed to Saturday overtime (for example by boasting that she would be having a lie in on Saturdays).

A key reason for her dismissal was the employer’s belief that a number of other employees would withdraw their agreement to work overtime if Mrs Edwards was excused. The employer was convinced that her behaviour was having an adverse effect on the workforce and that discontent was spreading. It saw her actions as a growing threat to its ability to fulfil orders. Mrs Edwards claimed unfair dismissal. The tribunal accepted that there were a number of minor flaws in the employer’s procedure. Despite this, the employment tribunal had no doubt that dismissal was within the range of reasonable responses. The tribunal found that it was reasonable for the employer to require Mrs Edwards to do some overtime and she had no legitimate reason for refusing. The consequences for the employer of not dismissing her could have been “disastrous”.

What can we learn from this case?

Fortunately, the employer had a contract clause “requiring them to work extra hours when the business requires”. This clause could have been more overt since the business was so reliant on the pre-Christmas period.

The Office Christmas Party

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Is a company vicariously liable for injuries caused by an employee after a work Christmas party has ended? No, held the High Court in Bellman v Northampton Recruitment.

The case involved an assault of a manager by a director after a Christmas party. Following the party the two, along with other colleagues, went on to a hotel and continued drinking until the assault occurred at 3.00 am. The assault caused serious brain injury to the manager and the decision was taken to sue the company, and in effect its insurers, rather than the director personally.

The question arose whether at the time the director struck the blow, was he “acting in the course or scope of his employment” so as to make the company vicariously liable? The Judge held that the company could have been liable if the blow had been struck during the Christmas party itself, but the assault in the hotel occurred after the party during a private drinking session and so the company was not vicariously liable.

The judgment provides useful analysis of the authorities on vicarious liability, and a timely reminder to companies that they could be held responsible for improper behaviour at works events, especially where alcohol is flowing freely.

What is the message for employers?

Whilst the employer wasn’t held liable in this case, the circumstances only need to be slightly different and for the outcome to be in favour of the manager. We suggest issuing a statement prior to seasonal office parties. We have already issued our retained clients with a recommended statement – please don’t forget to use it!

Christmas Closure

Please note that the Cluer HR offices will be shut from 5.00pm on Friday 23rd December 2016 until 9.00am on Tuesday 3rd January 2017. Retained clients will receive emergency contact information.

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