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Employment Law: An Update January 2006 Alison Bell.

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Presentation on theme: "Employment Law: An Update January 2006 Alison Bell."— Presentation transcript:

1 Employment Law: An Update January 2006 Alison Bell

2 Hot Topics: Discipline and grievance Long term sickness Changing terms and conditions Compromise agreements

3 New Legislation: TUPE 2006 Work & Families Act 2006 Recent Cases What's in the pipeline

4 Hot Topics Discipline and grievance

5 Disciplinary/dismissal and grievance procedures Statutory Dispute Resolution Regulations In 2 parts: Disciplinary/Dismissal Procedure and Grievance Procedure Standard 3 step procedure oPut it in writing oMeet and discuss oAppeal

6 The disciplinary/dismissal procedure Mandatory Disciplinary/Dismissal Procedure An additional obligation If the employer fails to comply: oAutomatic finding of unfair dismissal; and oAn increase in compensation

7 Points to note in the standard procedure Step 1 – Put it in writing, send it to the employee and invite the employee to a meeting Step 2 – Arrange the meeting before action is taken Step 3 – If the employee appeals, invite the employee to a further meeting and inform the employee of the final decision

8 Practical implications Post employment disputes Overlapping procedures

9 Practical Implications Retirement Redundancy

10 Practical implications Probationary periods Fixed term contracts

11 Grievance and disciplinary procedures A wide definition of grievance letter oSolicitors letter (open or without grievance) oFlexible working request letter oComplaint about handling of earlier grievance Solicitors letter asking for settlement not an appeal Information required as part of a DDP Employers must not rely on expired disciplinary warnings

12 Long term sickness

13 ACAS Code of Practice Investigation Establish underlying cause No reason for absence – discipline Genuine illness – capability Sympathetic and considerate approach Consultation, consultation, consultation !

14 Long term sickness - capability Regular contact Consult employee Employees medical evidence Own medical evidence Need to replace

15 Long term sickness (2) Warn employee of dismissal Meeting with employee to consider Alternative employment Reasonable adjustments

16 Decision Nature of the illness(es) Likelihood of recurrences Other sickness absence? Length of absence

17 Decision (2) Spaces between absences Need for particular employee Impact on others Length of employment Consistency

18 Varying terms and conditions

19 Employment law implications Possible routes forward Contractual change Consultation Redundancy situation

20 Contractual change ? Terms and conditions Employee handbook Individual agreements Longstanding practice

21 If no contractual change Discuss at consultative forum Individual consultation process Reason for objection Discrimination issues Disciplinary procedure for refusals

22 If contractual change How important Business reasons

23 Introducing contractual change Four options oThrough a contractual right oBy agreement oBy imposing the change oBy dismissal and re-engagement

24 Imposing the change Resign and claim constructive dismissal Continue to work under protest Claim unlawful deduction from wages (if there is an effect on pay) Claim breach of contract Claim discrimination (eg if there is a negative effect on a particular group of employees)

25 Dismiss and re-engage Wrongful dismissal Unfair dismissal whether or not re-engaged Business need, some other substantial reason

26 Redundancy Very significant changes Consultation with employees representatives Individual consultation

27 Varying Terms and Conditions – Summary Employment Law implications Possible routes forward Contractual change Consultation Redundancy situation

28 Compromise Agreements

29 The technical requirements When to use Without prejudice conversations Tactical considerations

30 New Legislation

31 Summary of main TUPE changes More transactions likely to be TUPE transfers Old employer can be liable for failing to consult Old employer must disclose information to new employer New employer has (limited) ability to change contracts of employment Insolvency

32 Work and Families Act Maternity and adoption pay Keeping in touch Early return to work notice Flexible working for carers Paternity pay Minimum annual leave entitlements

33 Practical implications Pay administration Increased warning of return to work Reasonable contact – KIT days Sharing maternity/adoption leave Impact of increase flexible working for carers

34 Recent Cases

35 Case law developments Disability absence and sick pay schemes Sickness vs disability Vicarious liability for harassment Whistleblowing – detriment after termination Discrimination by association On racial grounds

36 Case law developments Length of service and pay Employers vicarious liability for discrimination Public holidays for part time workers Using the right procedures

37 In the pipeline

38 Future legislation Commission for Equality and Human Rights – Oct 07 Data protection fully implemented – Oct 07 Smoking bans – 2007/08

39 Smoking Smoke free premises Signage requirements Vehicles Penalties


41 Age Discrimination January 2006


43 Age discrimination Outline of the Regulations Specific issues oRecruitment oService related benefits oRetirement oOther areas of impact

44 General observations Applies to all applicants/workers Irish experience: 22% of claims about age Many existing policies/practices are ageist Uncapped compensation

45 Some statistics… 40% increase in age claims in the US High numbers already facing age discrimination Big cultural change required

46 Main principles Direct – different treatment actual/perceived age Indirect – policy/practice/criterion disadvantages Harassment Victimisation Positive discrimination Selection must be age neutral

47 Main Principles - Justification Direct and indirect Proportionate and legitimate Evidence not assertion

48 Other exemptions to AD Genuine occupational requirements (very limited) Pay based on national minimum wage Complying with a statutory authority e.g. health & safety, under 18s doing bar work Occupational pension schemes Life Assurance Some pay and other service-related benefits Contractual redundancy payments

49 What else… Employers liable for acts of employees No age limits for unfair dismissal and redundancy Default retirement at 65 Right to request to work longer

50 Enforcement & Remedy In the Employment Tribunal Brought within 3 months of the discriminatory act Provided compliance with the Statutory Grievance Procedure Compensation = Uncapped

51 Recruitment issues

52 Employment strategy Get the right person to do the right job Ensure you have an age diverse workforce

53 Job adverts Wording of adverts Experience, qualifications, qualities Where are you advertising?

54 Job applications Application Form Job Description Interview Selection panel Recruitment agencies

55 Selection process Stereotypical assumptions References Monitoring – applicants Monitoring – workforce Records

56 What the new legislation doesnt mean you have to recruit over the age of 65 you have to recruit the wrong person there are no circumstances for exclusion based on age

57 Pay & Benefits

58 Service Related Pay & Benefits Examples of benefits commonly related to service Incremental pay scales Enhanced holiday entitlement Extended notice periods Eligibility for private medical insurance Enhanced redundancy/sick pay scheme

59 Service Related Pay & Benefits Up to 5 years service OK, providing applies to all staff doing work of like nature and length of service is sole criterion 5 years + OK with justification Backed up by evidence

60 Retirement issues

61 Retirement issues: overview 65 default age, until 2011 review… blanket dismissal at 65, with no reason given NRAs of less than 65, almost impossible to justify Less than 65 NRA – risky above 65, do not have to justify where fixed No NRA: no retirement dismissal protection

62 Retirement issues contd… No upper age limit for unfair dismissal Set timetable and process to achieve Includes right to request working after retirement

63 Planned retirement (PR) process Employer triggers Notice must expire on planned retirement date Inform employee of right to request continued working Employee request 6 months – 3 months prior Like flexible working process No requirement to give reasons for refusal

64 Transitional provisions For retirement until 31 March 2007 Must advise employee of right to request to continue working Normal notice Request – up to 4 weeks after termination Meeting within reasonable time

65 Points on process Consequence of breach (including insufficient notice of retirement): oAutomatic unfair dismissal oCompensation up to 8 weeks (capped) pay oPossible age discrimination claim

66 Change working pattern post-65? No statutory right to request (unlike flexible working) For employee to initiate Tie in with flexible working arrangements

67 Other areas of impact Promotion – open and objective Training and development – equal access and engagement Redundancy procedures

68 Suggested action list Audit age profile (including recent applicants) Agree action plan and timetable Announce with top level backing Do impact assessment on all policies/practices Train/educate all staff Employment terms/benefits requiring renegotiation


70 Case Studies December 2006

71 Case study 1 – long term absence Jane has been employed as a sales representative in Shire for three years. In January of last year she started to suffer from stress and has been off work ever since. She recently submitted a doctors note for an additional three months which cited work related stress. Bob, the sales team manager does not think the condition is genuine and is keen to replace Jane. Bob calls you later that afternoon to confirm that he is due to meet with Jane this afternoon and intends to dismiss her on grounds of capability.

72 Case study 1 – long term absence What are the associated risks if Bob decides to dismiss Jane? What could Bob have done to minimise the risk of a dismissal? What alternatives are there to dismissal? How would you advise Bob to proceed?

73 Case study 2 – disciplinary Sam is the manager of a sales team in Bigwood and has been employed in that role for five years. Sam has a chequered disciplinary history and has a number of both verbal and written warnings on his record. Following a recent incident Sam was suspended pending the outcome of an investigation. After the suspension Sam wrote to the company claiming that his conduct was the result of bullying. Having concluded the investigation the company decided to proceed to a disciplinary hearing which they have asked you to chair.

74 Case study 2 - disciplinary What if any difference will the previous disciplinary warnings have in relation to the proposed disciplinary hearing sanction? Will the fact that Sam has previously complained of bullying impact on the process? How would you advise the company to proceed? What are the potential risks to the company?

75 Case study 3 - probationary Dave started as an sales representative in the City two months ago. During this time his performance has been assessed as average/poor, albeit that Helen, the sales team manger, has not communicated this to Dave. Helen is also disappointed at Daves continual moaning about other members of staff and about the layout of the area office following a recent incident in which he tripped. Helen is keen to dismiss Dave and cite the fact that he has not reached the standards required during his probationary period.

76 Case study 3 - probationary What is the relevance/purpose of the probationary period? Is Helen safe from an Employment Tribunal Claim if she dismisses Dave? Does the fact that Dave has made complaints have any relevance? What other considerations might be relevant? What could the company have done better?

77 Case study 4 - fraud Judas is a sales team manager in the Moneytree area with over ten years service. Following an internal investigation Ben, Judass line manager, uncovered a number of discrepancies in Judas sales figures and area receipts and carried out an internal investigation. Ben also reported the matter to the police. Ben later dismissed Judas for gross misconduct.

78 Case study 4 - fraud What should Ben have done when he suspected a possible Fraud? Did Ben follow the right procedure? Prior to the disciplinary the Police told Ben not to disclose certain documents to Judas, what if any impact will this have on the disciplinary process? What other sanctions are available to the company?

79 Case study 5 – unauthorised absence Sue is a sales representative in Skive. In her three years with the company Sue had received a number of verbal warnings in relation failing to follow absence reporting procedures. Having failed to turn up to work for 2 weeks the company write to Sue confirming that she has been dismissed. Sue appeals the dismissal and provides a post dated sick note citing work related stress. You are asked to conduct the appeal.

80 Case study 5 – unauthorised absence What should the company have done when Sue failed to turn up to work? What else will you want to know prior to conducting the appeal? What options are available to you at the appeal? What potential risks are there in upholding the dismissal?

81 Case study 6 - disciplinary Adrian the area manager in Risk has asked you to chair an appeal in relation to an employee they dismissed for capability. On receipt of the papers it soon becomes clear that the company have not followed any of the correct procedures. In addition it appears that Greg (the employee) had often complained that his line manager did not support him or investigate his requests for further training.

82 Case study 6 - disciplinary Upon further review you note that Greg is 64 and suffering from arthritis, what if any impact might this have? In his appeal Greg states that he often asked to be excused from manual work, but that he was told this formed part of his duties. Does this impact on your decision? What options are available to you at the appeal? What do you see as the perceived risks?


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