HMO QUARTERLY EMPLOYMENT BULLETIN

September 2007

No Smoking

It has been well publicised that since 1 July 2007, it is illegal to smoke in England in public places that are enclosed or partially enclosed. 

The consequences from an employment law perspective are that an Employer’s liability for failing to prevent an employee from smoking in a prohibited place may lead to a fine of up to £2500. 

To protect themselves employers need to demonstrate; 

• that reasonable steps were taken to prevent the person from smoking
• that it was not known or could not have reasonably been known that a person was smoking
or
• that on other grounds it was reasonable for the employer not to comply with the duty.

Even the failure to display an appropriate no smoking sign may lead to a fixed penalty fine of £200.00 or £1000.00 on conviction.

Local government (borough and district councils) will have responsibility for enforcing the new rules.

Employers will need to handle matters carefully bearing in mind that some employees may consider that custom and practice have facilitated a contractual entitlement to a smoking break. However, it is unlikely, in light of the current legislation, that a Court or Tribunal will support such an assertion.

Spent convictions

In job applications or at interviews, applicants are not generally obliged to reveal spent convictions (the Rehabilitation of Offenders Act 1974 specifies time frames from which specific types and lengths of criminal conviction should be ignored).

However where an applicant answers such a question on this issue dishonestly, he/she may be committing a deception, giving rise to criminal liability.  This issue was discussed in the recent criminal Court of Appeal case of R v Patel. 

In this case, an applicant for a civilian job with the police, stated “no” on her application form in response to the question “have you ever been convicted of an offence?” In fact several years previously, she had been made subject to an order for a conditional discharge at a Court hearing. Following her job application,  P was charged with the criminal offence of obtaining a pecuniary advantage by deception.

The Court of Appeal held that, as a matter of definition, an order for a conditional discharge was not a conviction. P had never been convicted of an offence there-fore she had not made a false representation and the case against her was unsuccessful.

The Court went on to say that for policy reasons specified employers such as the police, who are exempt from the Rehabilitation of Offenders Act 1974, should be able to ask a broadly-phrased question, such as “Have you ever been found guilty of a criminal offence?”

Statutory Holiday and Bank Holidays

The Working Time Regulations have been amended to increase the statutory  holiday entitlement from 20 days per year to 24 days from 1 October 2007 and then to 28 days from 1 October 2008 (With an increased pro rata figure for part time employees).  

The likely basis for this change has been the decision of some employers to include bank holidays in the employee’s holiday entitlement.  The eight UK bank holidays are clearly factored into the increased entitlement from 1 October 2008. 

Employers will need to be careful to ensure that employment contracts deal with the bank holiday issue to avoid employees claiming an entitlement to 36 days including bank holidays.

Disability Discrimination And Sick Pay

The Court of Appeal has upheld an Employment Appeal Tribunal  decision (O’Hanlon v HM Commissioners for Revenue and Customs) that an employer is not obliged to maintain a disabled employee indefinitely on long-term sickness absence at full pay and that a failure to do so is not a failure to  make a reasonable adjustment (i.e. a discriminatory act)
                                                              

Grievances And Continuing Discrimination

Disability  discrimination claims, as with other discrimination claims require the submission of a written grievance before a complaint can be filed at the Employment Tribunal.

In a recent Employment Appeals Tribunal case (Smith v Network Rail Infrastructure Ltd) a disabled employee had been absent from work on long-term sickness, and during the period of his employment, complained about the employer’s delay in finding alternative work for him. Subsequent to the issuing of the letter of grievance, further acts and omissions had taken place. On appeal the employer argued that the proper action would have been for the employee to further grievances subsequent to each act of which he wished to complain. Since the employee had not raised the further acts in any grievance letter the Tribunal could not hear them

The EAT rejected this argument. Where a grievance complains of an act or omission, which is effectively a continuation of previous acts or omissions and without changing the substance of what is in essence the same complaint, then even if an employee fails to submit a new grievance he/she is not prevented from bringing a claim.

Discrimination On Grounds Of Religious Belief

From 30 April, The definition of religion or belief for discrimination purposes is extended (by virtue of the implementation of section 77(1) of the Equality Act 2006) to cover “any religion” and significantly “any religious or philosophical belief” including “a lack or religion” and “a lack of belief”.  This change extends the legislation to ensure that it protects atheists and agnostics from discrimination.

Hand Morgan & Owen – Employment

Nigel Pepper, Partner          Patrick Nelson, Solicitor
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Telephone: 01785 211411   

This article is for the purpose of general awareness only and the law may have changed since it was originally published.  It does not constitute legal or professional advice and readers should not act on the basis of the information included.  Readers should take appropriate advice upon their own particular circumstances.