HMO QUARTERLY EMPLOYMENT BULLETIN
March 2008

EXPIRED DISCIPLINARY WARNINGS
In the recent Court of Appeal case of Airbus UK Ltd v Webb it has been held that a dismissal is not automatically unfair if the employer took account of misconduct relating to an expired disciplinary warning

Mr Webb was dismissed by Airbus for misconduct.  Thirteen months before he had been given a warning for similar conduct which was stated to last for twelve months and accordingly had expired.  This was taken into account in the decision to dismiss.

The Court of Appeal held that the dismissal was fair. There was no rule that an employer could not consider a previously expired final written warning.  All the circumstances of the decision to dismiss must be taken into account in considering whether an employer has acted reasonably.  Whilst reliance on an expired warning may make a dismissal unfair, this is not inevitably the case.

PROTECTING YOUR INVENTIONS
In the case of LIFFE Administration and Management v Pinkava clarification was given as to who owns an invention made by an employee in the course of his employment. The invention was not made in the course of employment for a scientific company but by an employee at the London Futures Exchange. At the request of his employer the employee came up with a new trading system.

He got his teeth into this and created something more than was strictly necessary. He decided to patent the invention in the US. The employer, however went to law for a declaration that it was entitled to the confidential information which made up this invention. The Court had to decide whether in these circumstances the invention had been part of the employee’s normal duties. It decided that once the task had been delegated to the employee the resulting invention was part and parcel of his normal duties. Accordingly the employer was entitled to the “intellectual property rights” in the invention.

PAYMENT OF EMPLOYEES IN ACTION SHORT OF A STRIKE
If an employee goes on strike as part of an industrial action then the employer is not obliged to pay. What, however, is the situation in non-striking industrial action, working to rule, if the employee refuses to perform all of his contractual duties?

To date the principle has been that the employee is not entitled to his full contractual wage and his employer can deduct the sum of equal to the proportion of time the employee deliberately refuses or fails to fulfil his contractual duties. This is known as the quantum meruit principle – what the job done is worth. This principle has been doubted, however, in a recent County Court case, Spackman v London Metropolitan University, when a lecturer who only completed about 70% of her contractual duties during the industrial action sued the University for the balance of her wages which had been deducted. The Court in refusing the claim suggested that in paying the lecturer 70% of her wages she had been paid more than she was legally entitled to expect.

MATERNITY RIGHTS : DISMISSAL PLANS GENERATED DURING MATERNITY LEAVE
A reminder that as an employer you have to be extremely careful in even considering the dismissal of an employer who is on maternity leave. The reason for this is that workers have a right to return after maternity leave. In a recent case before the European Court of Justice a worker who was dismissed 11 weeks after her return to work was successful in making a claim against her employer notwithstanding the time lapse because the Court said that the principle extended to cases where an employer had taken “preparatory steps” for such a decision before the end of the period of maternity leave.

DRUGS AND ALCOHOL
A recent case before the Employment Appeal Tribunal underlined the need to remember and apply the policies which you have adopted in respect of drugs and alcohol. In this case the policy on drugs and alcohol allowed for the suspension of disciplinary action being taken against an employee for alcohol abuse where he could show that he was seeking help to cure his alcoholism.

The employer forgot about the contents of the policy until shortly before the disciplinary hearing. Although the employer provided the employee with a copy the employer took no notice of the contents in coming to the decision to dismiss. It was found, accordingly, that the dismissal was unfair although the employee faced a reduction in his award to reflect the extent to which his alcoholism had contributed to his dismissal (Sinclair v Wandsworth Council).

RELIGIOUS DISCRIMINATION
You may have picked up from newspaper reports the case of a Magistrate, sitting on the Family Panel, who resigned and claimed discrimination because he was being required in the course of his duties to apply principles of adoption with which he had difficulties because of his “religious or philosophical belief”. The law allowed adoption to be taken up by a same sex couple.

The law (with effect from the 30 April 2007) had extended the definition of religion or belief to include “any religious or philosophical belief”. The Employment Appeal Tribunal added a gloss to the extended definition, however, in saying that the religious or philosophical belief had to be based on evidence before it constituted a belief for the purpose of the Regulations. On this basis the Magistrate’s opinion did not qualify and he lost his claim.

DISABILITY DISCRIMINATION : REASONABLE ADJUSTMENT
You will be aware that employers are under duty to make reasonable adjustments to avoid those with disabilities being disadvantaged. This begs the question as to the extent to which an employer has to go to fulfil this duty, however.

In a recent case involving an applicant for a job and a public body the applicant was asked, along with other applicants, to sit psychometric tests after which decisions would be made as to whom would be interviewed. As this applicant had dyslexia he was allowed to 20% extra time to undertake the tests.  He did badly and was not invited to interview. He claimed that he had been discriminated against and also pointed to the public body’s disability code of practice which said that “testing would only be applied to disabled candidates where appropriate”. The Court of Appeal (Northern Ireland) decided, however, that the legal duty of the employer was to put the candidate on an equal footing with other non-disabled candidates – and the extra time allowed in the test had achieved this.

AGE DISCRIMINATION : JUSTIFICATION
Remember that the general principle is that there is no default retirement age, that there are procedures around retirement which must be followed and that if proceedings are brought against an employer for age discrimination the employer will have to justify the step has been a proportionate means of obtaining legitimate aim. That’s clear then!

Cases are now coming through one of which was of quite high profile in the media. This involved a senior partner suing his partners who had “retired” him under the terms of a Partnership Deed. The facts and law around this case are complex but suffice it to say that the Court found that even if what had occurred was discriminatory the method adopted by the firm which included detailed consultation was proportionate and the intention of the firm to make succession and advancement for younger partners more feasible was legitimate. Therefore any discrimination which had occurred was justified and the senior partner lost his claim.

DRESS AND HAIR CODE
A Rastafarian driver claimed that he had been discriminated against as a Rastafarian. He had dreadlocks but the reason given for dismissal was his untidy appearance. However he lost his claim because the company’s policy was a prohibition against untidy hair rather than a prohibition against dreadlocks (which would have indirectly discriminated against Rastafarians).

TRANSFER OF BUSINESS
Where a business has been transferred an employee may object to the automatic transfer of his contract of employment. Because he denies himself protection under the TUPE Regulations there has to be good evidence of the objection.

A recent case confirmed that even where an employee objected two days after the transfer, when the details of the transfer became known to him, this constituted sufficient evidence of refusal.

REDUNDANCY : STATUTORY TRIAL PERIOD
You may know that where a redundancy situation arises an employee can trial an alternative position in your company for a period of 4 weeks.  The case of Optical Express Limited v Williams has now confirmed that if he works beyond the end of the trial period, without agreeing an extension, then he will lose his entitlement to redundancy pay.

INCREASE IN TRIBUNAL AWARDS AND OTHER CHANGES
With effect from the 1 February 2008

• A week’s pay eg for the basic award in unfair dismissal or redundancy is £330.00
• The maximum statutory redundancy payment goes up to £9,900.00
• An award for failure to allow the right to be accompanied at a disciplinary or grievance hearing goes up to a maximum of £660.00
• Unfair dismissal basic awards goes up to a maximum of £9,900.00
• The unfair dismissal compensatory award has a maximum of £63,000.00 but note there is no limit where the dismissal is unfairly connected with health and safety
• Unfair dismissal additional awards for failure to follow statutory disciplinary and grievance procedures increase to £1,320.00
• Written Particulars : The award for an employer’s failure to provide a statement/incomplete or inaccurate statement increases to a band of £660.00 to £1,320.00
• Guarantee payments increase to £20.40 for a workless day.

WHAT IS IN THE PIPELINE?
Well, the item which has caught our eye is the Employment Bill (previously known as the Employment Simplification Bill) which is currently going through Parliament in which the recently introduced rules relating to Disciplinary and Dismissal Procedures are to be reformed. Just as we think we have got our heads around the procedures introduced in 2004 we are told they will be abolished! The focus will be upon following Codes of Practice issued by ACAS. The new codes have not been previewed but commentators suggest that they will be similar to those already in existence relating to discipline and dismissal. If there is failure to follow these Codes it is proposed that the Employment Tribunal will have the power to increase or decrease compensation by up to 25% (rather than the current 50% if either the employer or the employee unreasonably fails to follow the Code of Practice).

The current time table is for the introduction of this new regime in the Spring 2009. In the meantime adherence to the minimum statutory procedures, your own contractual provisions and your own policies will remain paramount.

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.