Welcome to the first edition of our monthly employment law update from the HR Division of Lander Associates. Paul Marsh, our Head of HR, has a wealth of expertise in recruitment law and will be sharing updates, case studies and more with you each month.

Guidance for employers during the Olympics With the London Olympics less than a year away, Acas has issued guidance to employers on ways to manage staff during the Olympics in order to maintain productivity and reduce unauthorised absence. Acas encourages employers to be fair in responding to annual leave requests and flexible in dealing with staff requests to watch events. http://www.acas.org.uk/index.aspx?articleid=3401 Equal treatment for agency workers – next month! The Agency Workers Regulations give agency workers the same basic employment conditions after 12 weeks in a given job as if they had been employed directly by the end-user, including pay, holiday, rest periods and rest breaks. From day one of an assignment, agency workers should have the same access to facilities and information about job vacancies as the hirer's employees. National minimum wage increases to £6.08 per hour – next month! The main rate of the national minimum wage rises from £5.93 to £6.08 per hour. The development rate increases from £4.92 to £4.98 per hour, the rate for workers aged 16 to 17 from £3.64 to £3.68 per hour, and the apprentice rate from £2.50 to £2.60 per hour. Sick worker entitled to carry over statutory holiday (and pay) Mrs Larner was employed by NHS Leeds. In January 2009 Mrs Larner went on sick leave and did not return to work. In April 2010 NHS Leeds terminated her employment by reason of ill-health capability. Mrs Larner brought a claim for payment in respect of her outstanding statutory holiday entitlement. The Tribunal upheld Mrs Larner’s claim. NHS Leeds appealed to the EAT (employment appeal tribunal). It argued that the notice requirements under the Working Time Regulations were mandatory. It contended that Mrs Larner lost her statutory leave entitlement as she had failed to notify NHS Leeds of her to wish to take leave. The EAT upheld the Tribunal’s decision. Mrs Larner had been signed off sick for a whole leave year and was unable to exercise her right “to enjoy a period of relaxation”. Further, she “did not have the opportunity” to take her statutory leave entitlement. The Tribunal decided that Mrs Larner’s holiday entitlement would carry over to the next year. When NHS Leeds terminated her employment, her right to be paid in respect of that leave crystallised. Driving without a licence dismissal was fair Mr Atkinson and Mr Marrison were employed by Wincanton plc (“Wincanton”) as HGV drivers. Wincanton paid for the drivers’ annual licence renewal fee, but it was the employees’ responsibility to organise the renewal of their licences. During a biannual licence check, Wincanton discovered that Mr Atkinson and Mr Marrison’s licences had expired.

September 2011

Employment Law Update

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Both were suspended and disciplinary hearings were held. Wincanton summarily dismissed Mr Atkinson and Mr Marrison for gross misconduct due to the “potentially serious adverse impact” of driving without licences. Both drivers brought claims for unfair dismissal and wrongful dismissal. The Tribunal held that the dismissals were unfair, partly because the employees had faced no actual consequences as a result of failing to renew their licences and therefore the employer’s principal justification was “almost entirely hypothetical”. Wincanton appealed the decision. The EAT overturned the Tribunal’s decision. It held that it was fair for Wincanton to consider the potentially (horrific) criminal and commercial consequences, even if they never materialised. To follow the Tribunal’s decision would mean that employees who behaved negligently and breached their employment contracts, could not be fairly dismissed if the illegal act were to have no repercussions for the employer. The EAT found that the dismissals were within the band of reasonable responses and were therefore, fair. Time off for dependents An Employment Tribunal has held that an employee was unfairly dismissed for taking time off work to make emergency childcare arrangements. The claimant arrived at work 30 minutes late in order to arrange emergency childcare, when his mother-in-law, who usually looked after his children, was ill. The claimant’s wife worked for the defendant company as well and she advised his line manager that he would come to work as soon as he had found another relative to care for the children. On his arrival at work, the claimant refused to sign a “late form” agreeing that due to being late, one hour’s pay would be deducted from his salary for the month. An hour’s pay was nevertheless deducted. The claimant questioned the deduction and, in a discussion with the wages department about the issue, he became agitated. The claimant was then suspended and summoned to attend a disciplinary hearing. At the hearing, he was told that he would be dismissed unless he signed the late form, provided a written apology and accepted a final warning. He refused to do so and was dismissed for gross misconduct for refusal to carry out duties or reasonable instructions and threatening behaviour. The Employment Tribunal upheld the employee’s claim. This is one of a few decisions on the exercise of an employee’s right to take time off work to deal with situations affecting their dependents. Employers should be aware of employee’s statutory rights and avoid introducing policies which may impact on those rights. Question of the month: I have verbally agreed a change in working pattern for a maternity returner to accommodate her – is this ok? The issue here is that the change may work to begin with but the business may decide later on that actually the new working pattern impacts detrimentally. Any changes of this nature should be submitted as part of a formal request for flexible working that you then consider. If you are agreeing to an arrangement you should agree a trial period rather than just agreeing a permanent change to the contract.

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Employment Law update

This employment update is provided for general information only and should not be applied to specific circumstances without advice.

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