Employment Review - February 2007
In this review we report on meeting the requirements of Statutory Disciplinary and Dismissal Procedures (SDDP) in relation to Section 98A(2) ERA “Polkey Reversal”; How section 98A(1) applies where SDDPs are not completed in relation to a dismissal; a case where a dismissed employee was not entitled to full pay in lieu of notice; the changes introduced by the Work and Families Act 2006; many recent discrimination cases including religious, disability, sex, age; and many more.
A Dismissed Employee Was Not Entitled To Full Pay In Lieu Of Notice In Periods of Sickness
EU Membership
The Requirements Of The Statutory Dismissal And Disciplinary Procedure (SDDP) Polkey Deduction And Unfair Dismissal
Religious Discrimination; Dispute Over Wearing The Muslim Veil
Age Discrimination
Disability Discrimination
Recent Work
Section 98A(1) Applies Only Where SDDP Is Not Completed In Relation To A Dismissal
Flexible Working (Eligibility, Complaints And Remedies) (Amendments) Regulations 2006
A Dismissed Employee Was Not Entitled To Full Pay In Lieu Of Notice In Periods Of Sickness
This case addressed the question of the amount of pay that an employee is entitled to where they are on sick leave during the notice period.
In this case Mrs Burlo was employed as a nanny and her contract required eight weeks’ notice in the event of termination of employment. Later on Mrs Burlo threatened to resign over a dispute regarding pay. Her employer said she had to work during her notice.
Mrs Burlo was then involved in a car accident and was unable to return to work.
Her employer replaced her and told her not to return to work. She was paid notice pay at the contractual rate which stipulated Statutory Sick Pay (SSP) would be paid during periods of sickness.
Mrs Burlo disagreed and said she should be paid full pay. The Employment Tribunal agreed with Mrs Burlo but this decision was overturned by the Employment Appeals Tribunal and upheld by the Court of Appeal.
It was established that the basis for calculating a compensatory award for an unfair dismissal claim where an individual was on sick leave should be equal to SSP and not full pay where contractual notice exceeded by one week or more the statutory minimum notice.
Burlo v Langley & Carter
Bulgaria and Romania became members of the European Union on 1st Jan 2007.
Despite being members of the European Union, Bulgarians and Romanians will still require a work permit to work in the UK.
The Requirements Of The Statutory Dismissal And Disciplinary Procedure (SDDP) Polkey Deduction And Unfair Dismissal
The EAT in YMCA Training Limited v Stewart provided guidance on the requirement of the SDDP and the operation of Section 98A(2) of Employment Rights Act 1996 (Polkey Reversal).
In this case Mrs Stewart was employed by YMCA as a Training Adviser.
Mrs Stewart’s colleague, Miss Brackley complained to their manager, Mrs Coutts about Mrs Stewart’s conduct.
Mrs Coutts prepared a letter inviting Mrs Stewart to an investigatory meeting to investigate concerns that she had in relation to Mrs Stewart. The letter stated a number of items for discussion including forged signatures on induction forms and timesheets for trainees, suggesting completion of a placement from which they had been removed due to disruptive behaviour.
The letter was discussed over the telephone with Mrs Stewart before sending it to her with a statement from Miss Brackley.
A few days later the investigatory meeting took place.
Mrs Stewart prepared a letter rebutting the claim and there was a discussion where Mrs Stewart denied the allegations of forging signatures. She also said that Mrs Coutts should speak to the Company that had taken the trainees for evidence of who had signed their timesheets.
After this meeting Mrs Coutts spoke to the Company. She then telephoned Mrs Stewart to invite her to attend a disciplinary meeting.
At the start of that meeting it was stated that the purpose of the meeting was “to conclude the investigation” and “to convey her decision with regard to disciplinary action”, dismissal with immediate effect for gross misconduct. She advised Mrs Stewart of her right to appeal (which Mrs Stewart did but without success).
Mrs Stewart brought proceedings for unfair dismissal. The Employment Tribunal held that Mrs Stewart had been automatically unfairly dismissed as YMCA had not complied with the minimum requirement of the SDDP because a separate letter for the disciplinary hearing had not been sent after the investigatory meeting.
The Tribunal also ordered a Polkey reduction on compensation of 60%, based on its conclusion that there was a 60% chance had a fair procedure been followed Mrs Stewart would have been dismissed.
The EAT found that the ET were wrong to find breaches of step 1 and step 2 of SDDP and accordingly wrong to find automatic unfair dismissal. The EAT therefore upheld YMCA’s appeal and, given this, found the claim to fail by virtue of Section 98A(2) because the Tribunal had made 60% Polkey deduction and therefore there was a less-than-even chance of the claim succeeding.
The case makes observations on the importance of focusing on the detailed requirements of the statutory procedures and clarifies that the overall effect of the procedure adopted is more important than literal detail.
YMCA Training Limited v Stewart
Religious Discrimination; Dispute Over Wearing The Muslim Veil
This case considered discrimination under The Employment Equality (Religion or Belief) Regulations
The Employment Tribunal held that an instruction to a Senior Muslim Teacher not to wear a veil whilst teaching did not amount to discrimination under Employment Equality (Religion or Belief) Regulations as the means of achieving her work were facial communications with students as well as verbal discussion and physical demonstration.
The Employment Tribunal did agree that the Claimant Ms Azmi had been victimised in the way that her sickness absence and grievance had been dealt with, by her employer. She received an award for injury to feelings as the Statutory Grievance Procedure had not been followed.
Azmi v Kirklees Metropolitan Council
Since 1 October 2006 there is a legal protection against age discrimination. It is no longer lawful to discriminate on grounds of age.
Employers can only retire employees below 65 where they can show that having a lower retirement age is appropriate and necessary.
Whatever the age of employees, employers must inform employees in writing, at least 6 months in advance, of the intended retirement date.
Employees also now have a statutory right to request working beyond compulsory retirement, which employers must consider.
The High Court has agreed to refer Heyday’s application challenging mandatory retirement ages to the European Court of Justice (ECJ). The actual questions to be referred to the ECJ will be decided following the party’s submissions in January 2007.
Reference To EC J On “Associated” Disability Discrimination
In this case Ms Coleman has a four year old son who is disabled. Her employer refused to provide flexible working opportunities in contrast to mothers of non-disabled children working for the same employer. Mrs Coleman claimed that she was unlawfully discriminated against by her employer due to her son’s disability.
The EAT upheld a Tribunal’s decision to ask the ECJ whether the Equal Treatment Framework Directive had provisions on disability to cover “associated discrimination” (that is discrimination against a non-disabled person on grounds of their association with a disabled person).
It held that the reference to the ECJ should consider whether the Disability Discrimination Act 1995 could be capable of a purposive interpretation.
Attridge Law and Another v Coleman
- We were involved in a dispute on the interpretation of National Minimum Wage Regulations involving nearly 300 employees.
- We reviewed Company Handbooks to ensure they comply with the Work and Families Act 2006.
- We advised on the Regulation of Investigatory Powers Act 2000 lawfully to intercept e-mails to employees from a third party.
- We successfully defended a disability discrimination claim.
Section 98A(1) Applies Only Where SDDP Is Not Completed In Relation To A Dismissal
In this case the EAT found that a dismissal was not an automatic unfair dismissal where the employer had complied with all three steps of the SDDP, even where the employer had failed formally to start the SDDP prior to carrying out disciplinary action against the employee. The EAT stated that Section 98A(1) of ERA 1996 only applies where an SDDP has not been completed in relation to the dismissal.
AB Travel Limited V Kennedy
Flexible Working (Eligibility, Complaints And Remedies) (Amendments) Regulations 2006
The Work and Families act 2006 received royal assent in June 2006 and will introduce the following changes in 2007;
- Increased Statutory Maternity Pay (SMP), Statutory Adoption Pay (SAP) and Maternity Allowance (MA) from 26 weeks to 39 weeks for employees where the expected childbirth (or date of adoption) is on or after 1st April 2007.
- Additional paternity leave and pay; the Act makes provisions for this new right to be created. Fathers will be entitled to up to 26 weeks’ additional paternity leave. When introduced this new right will be dealt with in separate Regulations and the Government has said it intends to introduce these new provisions at the same time as it extends the period of maternity pay to 12 months, which it expects to do by the end of this Parliament 2010.
- Removal of qualifying period for additional maternity leave (AML); at present all pregnant employees are entitled to 6 months’ ordinary maternity leave (OML) but only employees with 26 weeks’ service at the end of the 14th week before the expected week of childbirth (EWC) qualify for a further 6 months AML. The changes will mean that all pregnant employees will qualify for 12 months’ maternity leave, notwithstanding their length of service.
- Longer notice to be given before returning early from AML; currently if a women wishes to return early from AML she will have to give not less than 28 days’ notice. When the changes come into force if a women wishes to return early from AML she will have to give not less than 8 weeks’ notice. The same notice must also be given by fathers to take additional paternity leave, when the new provisions for that are in force.
- “Keeping in touch days”; under the new regulations an employee may work up to 10 days during her maternity without bringing the leave to an end or cessation of her benefits. “Keeping in touch days” are designed to improve the contact with the workplace. At the moment, if a woman does any work for her employer during her maternity leave, she will lose her statutory maternity pay for the week in which she works and any paid work done during the maternity leave would bring the maternity to an end. The introduction of “keeping in touch days” will mean that employer and employee can agree that those on maternity or adoption leave can return to work for up to 10 days during their leave without losing their right to SMP/ SAP. Women will be able to work or undertake training or familiarisation for their employer and be paid for up to 10 days during their MA period without losing any MA. Employers will also be encouraged to make “reasonable contact” with employees while they are on maternity leave. The meaning of reasonable contact will be defined in forthcoming guidance.
- Protection from detriment; employees will have protection from detriment or dismissal under Section 47(c) Employment Rights Act 1996 and Section 99 Employment Rights Act 1996. There is no compulsion on employers to offer or employees to undertake “keeping in touch days”. Employers cannot subject employees to detriment for any refusal if they do not wish to attend “keeping in touch days” during maternity leave.
- Extending the right to request flexible working for those caring for spouses, parents or partners; the draft regulations provide that an employee can apply to his employer to work flexibly if he is (or expects to be) caring for a person aged 18 or over who is either married to the employee, or is a civil partner, relative or living at the same address as the employee. This right is currently expected to come into force on 6 April 2007.
- Small employer exemption removal; currently employers with 5 employees or less are excluded from automatic unfair dismissal claims where they do not allow an employee returning from AML to return to the same or a similar job. This exemption will be removed.
If you are concerned about the potential impact these regulations will have on your business then please let us know your point of view as we intend to write a report to the DTI about our clients’ concerns about the impact of the Flexible Working Regulations 2006.
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