The employment law team at Hammond Suddards Edge answer questions on current workplace issues

first_imgThe employment law team at Hammond Suddards Edge answer questions on currentworkplace issuesTrade union recognition Q:  We do not recognise atrade union, however we have recently been contacted by a trade union who hasstated that a majority of the employees are union members who supportrecognition. What is the company’s position? A:  The statutory right torecognition, abolished on two previous occasions, has now been reintroducedtogether with associated procedures from 6 June 2000. Compulsory recognition is only valid in relation to collective bargaining onmatters of holidays, pay and hours. The following procedure only applies tothose employers with 21 or more employees: – One union, or a number of unions acting jointly can make an applicationfor recognition in respect of a bargaining unit. – If the employer does not agree to recognition, or ignores the request, theunion may apply to the Central Arbitration Committee (CAC). The CAC must notact unless at least 10 per cent of workers in the bargaining unit are membersof the union, and it is clear that a majority support recognition. – If more than half of the bargaining unit are members of the union, the CACwill usually make a declaration of recognition. – If not, then a ballot will be required, and in order to gain recognitionthe union must have the support of the majority of all voters, and 40 per centof all workers in the unit. An employer faced with the prospect of being forced to recognise a tradeunion may wish to consider taking pre-emptive action. Options include: 1)seeking a union with whom it is possible to build a constructive relationshipand enter into voluntary recognition. 2) Employees could be consulted regardingthe establishment of a staff council, to take part in consultation regardingcertain specified matters, for example, hours, pay etc. This will not preventthe employees from applying for representation, but will make it less likelythat they will feel the need to do so. However, it means that you will retainoverall control of the process, be able to agree the scope of the collectivebargaining and set out how it will be carried out. Either way, action must betaken sooner rather than later to take advantage of these options and avoid thestatutory procedures. Stephen Hurley Transfer dismissals Q:  I am the director of acompany which has taken over another company’s assets and employees. Followingthe transfer we will have an excess of employees, and I was intending toconsider relying on the ETO defence following dismissal. I am aware that there havebeen a number of developments in this area, is this option still open to me? A:  There have beendevelopments in the case law surrounding the ETO (economic, technical ororganisational reason involving changes in the workforce) defence. Thetraditional approach has been that regulations 8(1) (the fact that a transferrelated dismissal will be automatically unfair) and 8(2) (the ETO defence) arenot mutually exclusive. However, Kerry Foods Limited v Creber & others,1999, stated that once the principal reason for a dismissal was found to beconnected with the transfer, this was the end of the matter and the dismissalwas automatically unfair. This implied that the dismissal was either for areason connected with the transfer within regulation 8(1) or for an ETO reasoncontained within regulation 8(2) and cannot be both. However, subsequent EATcases have followed the traditional approach to regulation 8(1) and 8(2)finding that the tribunal must first consider whether the reason for dismissalis the transfer under regulation 8(1). If that is the case, then the tribunalis required to go on to consider whether the employer has established an ETOreason under regulation 8(2). In the case of Collins v John Ansell & Partners 1999, the EAT reviewedprevious case law and confirmed that the traditional approach is correct. Ittherefore seems clear that the odd situation that resulted from the Kerry Foodscase has been removed and it is now open for employers to use the ETO defencein a transfer dismissal situation. Cherry Livesey Rights of part-time workers Q:  A part-time employee hasrecently raised a grievance on the basis that part-timers are excluded from thedental health scheme and permanent health insurance. What are the risks ofthese policies resulting in a claim? A:  There is a significantrisk from two areas of legislation, namely the Sex Discrimination Act 1975 andthe new Part-time Workers (Prevention of Less Favourable Treatment) Regulations2000. The sex discrimination claim would be one of indirect sex discrimination, onthe basis that the condition or requirement of working full-time results in theless favourable treatment of part-time employees, who are frequently found tocomprise more women than men due to child care responsibilities, (thereby indirectlydiscriminating against women). As a result of this more women than men would beexcluded from the company’s benefits which could result in an indirect sexdiscrimination claim and the risk of unlimited compensation. The second risk of a claim comes from the Part-time Workers (Protection FromLess Favourable Treatment) Regulations 2000 (implemented on 1 July) introducedto ensure that part-timers are treated no less favourably than comparable fulltime employees. This includes the right to: – Receive the same hourly rate as full time employees – Receive the same overtime rates as full time employees once they haveworked the normal full time hours – Not be excluded from training or other benefits simply because they workpart-time – Have the same entitlements to annual leave and maternity/parental leave ona pro rata basis as full-timers. These regulations give direct rights to part timers without the need for aclaimant using the “back door” sex discrimination legislation. Sara Barratt Disability discrimination Q:  An employee has been offsick for five months with doctor’s notes giving reasons such as a virus andfatigue. The manager wants to dismiss on the basis that there are a variety ofreasons, with no underlying condition and the level of absence has becomeunacceptably high. Are there any risks in dismissing this employee? A: The dismissal of an employee who has been off long-term, but wherethere is no apparent particular condition is a difficult and potentiallydangerous area for employers. One of the difficulties that arose in a recentEAT case, is the issue of whether a disability discrimination claim can succeedwhere the employer has no knowledge of the disability at the time of thedismissal or other less favourable treatment. In the case of H J Heinz Co. v Kenrick, EAT 1999, the employee had been offwork for 10 months with a condition and a prognosis that were unclear. Thecompany told Kenrick that if there were no indication of a return date he wouldbe at risk of being dismissed. Kenrick thought he had Chronic Fatigue Syndrome(CFS), arranged to see an immunologist and asked the company to wait until hehad seen the specialist before they decided to dismiss him. However, the company proceeded to dismiss and Kenrick was subsequentlydiagnosed as having CFS. Kenrick’s disability discrimination claim succeededand it was concluded that the company did have knowledge of the symptoms ofKenrick’s condition. This case established that an employer could still discriminate against anemployee on the basis of their disability, even if they did not have any actualknowledge of the condition that amounted to a disability. The message for employers in these cases is not to dismiss until the medicalreasons for the absence have been identified and evidenced by medical reports. If the physical or mental condition is then shown to be capable of comingwithin the definition of a disability under the DDA, the employer will need togo on to consider reasonable adjustments, before then going on to consider anycontractual implications and concluding the procedure for dismissing on groundsof capability. If the conclusion is that there is no disability, although discriminationissues will not be relevant, the principles for a fair dismissal whether forconduct or capability will of course still apply. Nick Jones Sexual harassment in the office Q:  There has always been ahigh level of banter in the office. No complaints have ever been receivedalthough a newcomer to the team has now raised the working environment as anissue. What is the company’s position? A:  Working environmentsinvolving banter can often include, or result in, banter of a sexual nature.Although such banter may be described as “harmless fun”, it canresult in difficulties and claims. An example of such a case is Driskel v Peninsula Business Services & others,2000, IRLR 151 that involved a manager who regularly used sexual banter in theoffice and on one occasion directed it at the applicant. The EAT ultimatelyheld that the applicant had been discriminated against on the basis of hergender. It is unsafe for an employer to tolerate an environment wheregender-specific banter is common simply on the basis that no one hascomplained. There are many reasons why someone might not complain, for example,as in the case above, because promotion was in the gift of the person Driskelwould be complaining about. Moreover, while one might laugh off the occasional bad-taste remark, aseries of them seen together could constitute less favourable treatment. It islikely that the case will lead to more minor banter and/or fallings-out beingalleged to be gender-based; while by themselves they may amount to nothingmuch, this case may give them a new lease of life in aggregate. The message is to speak to the employee concerned immediately, and carry outa full and prompt investigation. Consider all the issues raised, the impact onthe particular individual involved, and the fact that there may be a reason whythe complainant failed to make her disapproval and distress known earlier.Prompt action needs to follow. Judith Monkhouse Privacy issuesQ:  The company monitorsemployee’s use of the e-mail and telephone systems. An employee has recentlycomplained that this is in breach of their human rights. Are they right andwhat are the main issues?A:  Article 8 of the EuropeanConvention of Human Rights (the Convention) provides for the right to respectfor family and private life, home and correspondence and states that thereshall be no interference by a public authority in the exercise of thatright.The Convention and this right to privacy will be implemented in the UK inOctober this year by the Human Rights Act 1998 (the Act).Personal telephone calls made by an employee at work are covered by Article8. An employee has a reasonable expectation of privacy if they have not beenwarned that telephone calls made at work could be monitored. This principlecould equally apply to e-mails and companies should therefore specify in theirpolicies and procedures that they reserve the right to monitor and disclose anymatters sent over these systems or stored in them. Without such a statement employees may assume that their e-mail andtelephone calls are private. Although the Act only imposes obligations onpublic sector employers, all courts and tribunals will have to take intoaccount and apply the Act when considering a particular case and any relevantlegislation irrespective of the type of employer. It is therefore important forprivate sector companies to ensure they also comply with the Act’s provisions.Further developments in this area include the Regulation of InvestigatoryPowers Bill (the RIP Bill). In its current form it will make it illegal for anemployer to monitor an employee’s telephone conversations or e-mails withoutobtaining the permission of the recipient and sender.It has been indicated that regulations will be issued to control the effectof the Bill. Employers should consider implementing a mechanism to obtainconsent to monitoring. Companies also need to consider having a similarmechanism (such as a consent form) signed by identifiable potential recipients.Sue Nickson Comments are closed. The employment law team at Hammond Suddards Edge answer questions on current workplace issuesOn 1 Sep 2000 in Personnel Today Related posts:No related photos. Previous Article Next Articlelast_img