What do employers need to know and do this March

We set out below key issues for employers to consider and actions arising from case law and forthcoming legislative developments.

Make sure you have considered and communicated your policy on e-cigarettes

E-cigarettes are not new but the comments of a recent Employment Tribunal (“ET”) have thrown a note of caution to employers to ensure that employees are clear on whether or not they are permitted to use e-cigarettes and if so when and where.  

A complaint was recieved that a school catering assistant had been seen using an e-cigarette in full view of pupils.  She was suspended.  The school’s policy prohibited smoking on school premises but there was no provision explicitly prohibiting the use of e-cigarettes.  Before a disciplinary hearing was held she resigned claiming constructive unfair dismissal.  The ET held that the employer had “reasonable and proper cause” for its actions.  There was no breach of trust and confidence for the purposes of her constructive unfair dismissal claim.  However, the ET did issue a warning to employers.  If the employee did not resign but had been dismissed under the disciplinary process, such a dismissal may have been unfair since there was no restriction on the use of e-cigarettes in the school’s smoking policy.   

E-cigarettes are unlikely to fall within an existing smoking policy (unless their use has already been specifically addressed).  Employers should take steps now to consider how they wish to address the use of e-cigarettes in the workplace including when and where they can be used (bearing in mind the need to balance the various needs of your workforce).  Your usual OC Contact will be happy to discuss this with you.

Do you know which of your employment terms are contractual?  Can you rely on any purported right you have to unilaterally vary them?

A spate of recent cases have brought home some very clear messages for employers when considering the terms of their employment contracts, staff handbooks and other related documents and any purported right to unilaterally vary them:

• Make sure terms are drafted without ambiguity. Drafting in the negative should be avoided.
• Make it clear which terms or provisions are intended to form part of the employment contract and ideally include them in that employment contract rather than relying on their incorporation via another document.
• Where an employer is considering making changes to terms and conditions, consider whether these may give rise to any indirect discrimination claims.  The Employment Appeal Tribunal (“EAT”) recently held that an employer’s decision to require employees to enter into new employment contracts which removed or reduced certain benefits, or be dismissed, did put older workers at a disadvantage since they had built up some of this entitlement due to longer service.  However, on the facts of this case the employer was able to show that the changes were justified in view of its severe financial circumstances.
• An employer can reserve itself the right to unilaterally vary terms and conditions of employment (subject to other legal considerations).  However, such a right must again be drafted clearly, setting out what the employer’s right is to vary and how it will undertake that variation process i.e. the mechanics for doing so.  A statement that terms may be “amended” or are “subject to variation” will not be sufficient.
• In practice, even if a variation clause is adequately drafted, it should be exercised with caution and always bearing in mind the implied term of trust and confidence.  A variation clause was upheld by the EAT in Bateman v Asda Stores.  In that case, the employer had undertaken substantial consultation with the impacted employees and in only one of the six test cases was the claimant financially worse off as a result of the changes.

Please let your usual OC Contact know if you would like advice on reviewing your existing terms and conditions in your contracts and other documents and the adequacy of any purported rights of variation.
(Hart v St Mary’s School (EAT)); Brathwaite and ors v HCL Insurance BPO Service Ltd (EAT); Sparks and another v Department for Transport; Norman and ors v National Audit Office (EAT))

When ought an employer to know if an employee is disabled?

A recent EAT decision provides helpful clarification for employers dealing with employees who are persistently sick but where it is difficult to identify whether or not the effects of their illness(es) bring them within the disability discrimination provisions.

The disability discrimination laws will kick in where an employer knows or ought reasonably to know that an employee is disabled.  Here the employer had obtained an occupational health report given the employee’s high level of short term and intermittent absence (which were for a wide variety of reasons).  That report stated that the employee was not disabled but failed to answer the specific questions the employer had asked it to address.  The employer followed up its questions with occupational health once but when the employer still failed to get answers it did not follow up again.  The EAT held that the employer had taken the steps that could be reasonably expected of it to satisfy itself that it did not consider the employee to be disabled.  Notably, in line with previous Court of Appeal guidance, the employer had not relied solely on the occupational health report but also discussions and return to work interviews with the employee and reviewing correspondence from her GP.  It had formed its own judgement based on all the facts it was reasonable for it to obtain and made available to it.

On a practical point, the ET decision indicated concern that the occupational health report was drawn up simply based on a review of documentation and without the occupational health adviser consulting with the employee by telephone or in person.
(Donelien v Liberata (EAT))

Countdown to shared parental leave

Whilst the imminent arrival of shared parental leave is unlikely to have escaped your attention, many are still grappling with the detail of the law and its impact on their organisation. Under the scheme, working couples will be able to share up to 52 weeks’ maternity or adoption leave and 39 weeks’ maternity or adoption pay (although a mother must still take 2 weeks’ compulsory maternity leave following birth).  To qualify for the scheme, parents must satisfy various eligibility requirements and essentially give eight weeks’ notice of any leave they intend to take.  Shared parental leave can be taken at any time in the first year following the child’s birth or placement for adoption.  Please see our overview and key issues for businesses here and here.

The Government has been issuing guidance and tools to help businesses with this new scheme including an eligibility calculator (see here).  However, given the complexity of the rules, where an employee does fall close to the eligibility criteria, employers would be sensible to check manually that they agree with the government’s calculations, particularly whilst the tool is in its infancy.  If you have any questions or require advice on this new right, please contact your usual OC Contact.

Increase in awards and statutory payments

From 5 April 2015 statutory maternity, adoption, paternity, additional paternity and shared parental pay will increase to £139.58 a week (up from £138.18). From 6 April 2015 the weekly rate of statutory sick pay will also increase to £88.45 (up from £87.55).

Further, for dismissals taking place on or after 6 April 2015 a maximum week’s pay for calculating the unfair dismissal basic award and statutory redundancy pay increases to £475 (previously £464) and the maximum compensatory award increases to £78,335 (from £76,574).

Other developments

• The revised ACAS Code of Practice on Disciplinary and Grievance procedures containing the amendments on the right to be accompanied is now in force. See our note here.
• The Small Business, Enterprise and Employment Bill (“SEEB”) now contains a provision requiring regulations to be made under s78 of the Equality Act 2010 within 12 months of the SEEB coming into force. s78 of the Equality Act 2010 requires companies with more than 250 workers to publish the difference between average pay of male and female employees or face a penalty.  This intervention has come in light of the fact that since the launch of the “Think Act Report” in 2011 which called for voluntary disclosure, only a handful of companies have in fact done so. Please see here.
• The prohibition on enforced subject access requests under s56 Data Protection Act 1998 is now in force.  This prohibits an employer from obtaining details of an individual’s criminal record or other such information by requiring that individual to make a personal subject access request to the relevant organisation and pass on the results of that request to their employer or prospective employer. Please see here for more information.