Comments by David Woollcott

David Woollcott
Member - 10 posts

Purely from a practical view point and with regard to confidentiality, all arrangements for medical reports are dealt with through my HR department, albeit that we keep such medical records separate from the main personnel records.

The approach we adopt on receipt of medical reports is to assess the advice, discuss it with the employee first and then agree on a course of action which should include discussion with the line manager regarding the content but this will depend on the nature of the illness, medical condition, treatment required, relevance to the Disability Discrimination Act, as examples.

There will be some aspects which must be shared with the line manager i.e. to avoid breach of the DDA, but some aspects may need to be kept confidential between the employee and HR i.e. long term medical treatment. There can be no specific rules which apply to every situation.

David Woollcott
Member - 10 posts

One point I missed from the original query relates to not informing the contractor that TUPE may apply. If you do not inform the contractor, then all hell will break out on or after the date of transfer.

Where do the employees go? Do they remain with you in other suitable alternative jobs? This has still denied them the fundamental right of transfer unless they have specifically agreed to remain with the transferor.

Do they knock on the door of the contractor and say "here I am, I am your newly transferred employee?" Unlikely to be favourably received as the incoming contractor will probably have made other arrangements and costed the contract accordingly.

Whatever happens, the`assigned' employees will have the right of transfer but if the contractor denies that a TUPE transfer exists, because he was not informed, both parties will probabaly be enjoined at an Employment Tribunal and get shot to pieces.

David Woollcott
Member - 10 posts

A lot of different issues here so I will keep my response as short as possible:-

* both the transferor and the transferee have legal obligation to consult and inform employees who will be affected by a transfer (not just `assigned' staff) at the earliest opportunity

* information to impart includes any `measures' which the transferor or transferee intend to introduce

* there is a duty to inform `representatives' of the workforce which might include trade union representatives or elected representatives for the purposes of the transfer

* failure to consult long enough before the transfer to allow meaningful consultation to take place could result in a maximum penalty of 13 weeks actual pay for each affected employee!

* changes to terms and conditions of employment are not permitted where the cause of such changes are related to the TUPE transfer (Wilson -v- St. Helens Borough Council). This is even true where the changes as a whole are more beneficial than the previous terms (Credit Suisse -v- Lister). Changes will be void unless they relate to an ETO decision or implemented as part of a later re-organisation but consultation with the view of seeking agreement is essential.

David Woollcott
Member - 10 posts

The situation regarding holiday entitlement should be fairly clear by reference to the Part-time Workers (Prevention of less favourable treatment) Regulations 2000. In essence, a part-time employee must be treated no less favourably than an equivalent full-time employee, the `pro-rate' principle being applied unless this is inappropriate. This will apply to remuneration and benefits (an example of an inappropriate pro-rate being three-quarters of a car (!) but could be replaced by a car allowance).

Holiday entitlement will be a classic example where the pro-rata principle must apply and this includes statutory holidays. If an employee works Tuesday, Wednesday and Thursday, the chances are that most of the bank holidays will fall on a Monday. In which case the employee should be appropriately compensated. As an example, three days part-time work equates to three-fifths of 8 statutory days = 4.8 or 5 days. Assuming Christmas Day, Boxing Day and New Year's day all fall on the days the employee would normally work, then arrangements should be made for the employee to have two other days as paid leave at another time in the year.

I cannot comment on the other queries as this may depend on the internal arrngements for that employer but, as before, the part-timer should not be disadvantaged.

David Woollcott
Member - 10 posts

An employee with less than one year of continuous service will not normally have the right of unfair dismissal under s.108.1 ERA 1996. In brief, there are, however, a number of exclusions which include:-

* membership or proposed membership or activieites associated with an independent trade union

* activities associated with preventing or reducing risks to health and safety at work

* dismissal for bringing tribunal proceedings against the employer either to enforce a statutory right (of which there are a number but please check) under the ERA 1996, or for alleging that the employer has infringed an employment protection right of the employee

* dismissal for pregnancy or maternity-related grounds during her pregnancy or statutory maternity leave period

* arising from suspension on medical grounds of an employee as a result of a statutory requirement, or of any recommendation in any provision of a code of practice issued under the Health and Safety at Work Act 1974, if the employee has completed one month's continuous employment (s.108(2) ERA 1996

I hope this brief summary is of help.

David Woollcott
Member - 10 posts

Five years ago, we started to analyse the reasons given for absenteeeism according to the number of employees and days lost in each category. At that time, there were no recorded reasons given as stress, anxiety and depression (SAD). In 2003, the number of days lost `SAD' is by far the largest reason. We engaged an Occupational Health consultancy and take the opportunity to refer any employee who is absent for whatever reason for longer than, say, one month, any one who has had an accident at work, those whose pattern of absence includes Monday, Friday and an extended bank holiday weekend, and particularly those who have a high number of sickness absence days virtually every year i.e. they take their full `entitlement'!

This process has enabled us to reduce the projected number of days absence for 2004 by around 40% and hopefully higher by year end. The reports from the OH consultants enable us to take various actions according to the circumstances. This includes positive support for the truly ill employee and, at the other end of the spectrum, more direct action with the employees who may be less than genuine with their absence record.

Of particular value are the recommendations regarding a forecast return to work and what should be done to reduce the likely recurrence of illness through a change of job, reduced hours for a short period to enable the employee to return to full performance, etc.

This is a practical approach to managing all forms of absence but, in relation to `sad' the professional will be able to assess the reasons which may not always be work related. Whatever the outcome, such an approach will provide a reasonably good defence if an employer needs to go down the route of job change, reduced hours, or even dismissal if this is the only possible outcome.

David Woollcott
Member - 10 posts

Whilst the `Rutherford' case was going through the Tribunal system, we took the action to allow staff to continue to work after the NRD of 65 as there was no way of predicting what the outcome would be. However, we had to advise those employees who took up this opportunity that our life assurers would cease cover for them. Further, the benefit of private health insurance would increase by a factor of 2.4 which would increase significantly the taxable benefit liability for the employee. Bearing in mind the influence by the EU in preventing Insurance Companies from quoting cheaper rates of insurance for female drivers, on the grounds of sex discrimination, I can foresee the UK Government being in some difficulties in drafting the Age Discrimination legislation due in 2006. At this early stage, I am not aware of any hints as to what aspects will be covered.

David Woollcott

Chartered FCIPD

David Woollcott
Member - 10 posts

First of all, in the situation you describe a redundancy situation will exist if the job in question ceases to exist so I am not sure what is meant by `retiring the position'. Only people retire.

If the number of jobs in a particular category are to be reduced for reasons of redundancy, then a consultation process must be undertaken during which the selection process has to be advised to the employees likely to be affected. In your case, it would seem that there was one job affected and one job holder. In which case, under many circumstances, the selection for redundancy should be clear cut, although a search for suitable alternative positions should be made as an alternative to redundancy.

Whether or not other employees should have been included in the process will depend on the degree to which the jobs are `similar' to the one in question, even if the job titles are different. It is impossible to comment in more detail in the absence of definitive information but the employee making the claim may have a very valid point. In which case, you will certainly have to allow him to appeal but the outcome will depend on the degree of similarity.

As regards the skills matrix and the inclusion of `skills' (or the lack of) you should ensure that the factors used are as objective as possible and avoid, wherever possible, wholly subjective factors (attitude, etc.,) unless there is a distinct balance between the two. The potential problem of majoring on the lack of ability to use certain equipment, whilst this may not be unfair in itself, is certainly worrying as a justification for redundancy selection particularly if the employee has been denied training on the equipment which he needs to use to undertake his job! In which case, the employee is paying the price of unfair management.