legal protection for employers

Employment Law Update

Our Spring Employment Law Update highlights some new obligations that employers should be aware of, as well as a reminder of some important existing ones. One of the principle aims of this Update is to provide key information to employers that could enable them to avoid having to defend a claim in the Employment Tribunal. We always welcome feedback, and would particularly like to hear from you if our Update has resulted in a potential crisis being averted.

NEW OBLIGATORY REQUIREMENTS TO INFORM AND CONSULT WITH EMPLOYEES

6 April 2006 saw the new Information and Consultation Regulations come into force, which grant employees the right to be informed and consulted by their employer before important business decisions are made, particularly where those decisions affect employees rights, such as mergers, recruitment and training. Initially the Regulations will only apply to employers with over 150 employees but they will be phased in to include those with only 50 employees by 6 April 2008.

SEXUAL HARASSMENT

A woman will have been “discriminated” against if she has been treated less favourably than a man would have been treated on the grounds of her sex. Once the Claimant has produced sufficient evidence to enable the Tribunal to draw an inference that an act of discrimination has been committed, the burden of proof shifts. It is then up to the employer to disprove the allegations and show that the treatment was not on the grounds of sex.

In Moonsar v Fireways Express Transport U Limited (2006) the Employment Appeal Tribunal found that a female working in an environment where male colleagues downloaded pornography did amount to less favourable treatment on the grounds of her sex. The behaviour was so obviously detrimental that it was of little significance that the Claimant did not complain to her employer.

This case highlights the risks open to employers where such behaviour is permitted, or not actively prevented in the work place. Employers may be forced to pay compensation, even though the employee did not make a formal complaint. Employers are encouraged to prevent such risks by implementing correct policies to ensure that discriminatory behaviour does not occur.

VARIATION OF TERMS AND CONDITIONS OF EMPLOYMENT

If an employer seeks to vary a term in an employee’s contract, such as place or hours of work, this may be interpreted as a fundamental breach of contract allowing the employee to resign and claim constructive unfair dismissal. However, terms and conditions of employment may contain flexibility or mobility clauses to allow an employer to implement variations without this risk. Even if such a clause doesn’t exist, an employer may still be able to vary a term if they can provide evidence of agreement, though employers are advised to take legal advice before doing so as there are traps for the unwary.

BULLYING

The Chartered Institute of Personnel and Development has recently published a report focussing on bullying in the work place. Some estimates say that harassment in the workplace costs employers up to 80 million pounds in lost days each year. Implementing an anti-bullying policy could prevent these problems and save money. Employers should now be defining what constitutes unacceptable behaviour in their field of operations and actively implementing a procedure that should be followed by employees.

IMPLEMENTING HEALTH & SAFETY
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RIGHT TO PRIVACY

Employer’s drug and alcohol testing policies are under threat due to the conflict between safety at work and an employee’s right to privacy. The Information Commissioner has published an employment code that provides some guidance on drug and alcohol testing in the workplace. In brief it says:

The benefits of testing should outweigh any adverse impact.
Testing should be limited to employees who work in safety critical activities.
The aim should be to implement safety at work rather that to reveal the use of substances in an employee’s private life.
Employees should give full consent.

Employers seeking to carry out drug testing are advised to proceed with caution and take advice on implementing a well-drafted policy.

NATIONAL MINIMUM WAGE INCREASES

The current rate for 21 year olds and above is £4.85 but this is set to increase to £5.05 in October 2006. This means that the minimum wage will have increased by 50% since it’s introduction in 1999. Surprisingly some employers still do not comply and risk costly litigation (The Department of Trade and Industry calculate that over £3 million has been recovered from employers who have not been paying the minimum wage since April 2004). The rate for 18 – 21 year olds is increasing from £4.10 to £4.25 and for 15 and 16 year olds the rate of £3.00 will be reviewed next year.

REQUIREMENT TO MAKE REASONABLE ADJUSTMENTS FOR THE DISABLED

The Disability Discrimination Act received Royal Assent on 7 April 2006. The new Act changes the definition of ‘disability’ and imposes a positive duty on public bodies to promote equality of opportunity for disabled people.

The recent case of Williams v Walter Thompson Group Ltdhighlights the duty placed on employers to make reasonable adjustments for thebenefit of disabled employees. Mrs Williams, who is blind, succeeded with her claim for disability discrimination after her employer failed to introduce reasonable changes.

LONG TERM SICK-LEAVE AND HOLIDAY PAY

The Working Time Regulations 1998 provide employees with the right to 4 weeks paid holiday each year.

The Court of Appeal in the case of Commissioners for the Inland Revenue v Ainsworth has recently held that the right to paid holiday will no longer continue to accrue when an employee is off on long-term sick leave.

FLEXIBLE WORKING

At present eligible parents with a child under the age of 6, or a disabled child under the age of 18 have the right to request flexible working, such as a change to the hours or times that they work or a request to work from home. The employer is under a duty to consider the application seriously and can only refuse it for a genuine business reason, such as the detrimental impact on performance of the business. Employers must be able to show they followed a clear procedure, within set time limits when considering the request. If the employee’s request is refused they may be able to pursue it further in the Employment Tribunal and if they succeed the employer may be forced to re-consider the application or pay compensation.