Comments by Jane Byford

Jane Byford - Martineau Johnson
Online advisor - 9 posts

Dear Steve

Thanks for your recent query.

If you dismiss this employee for misconduct, namely lying to hide his negligence and he brings a claim against you for unfair dismissal, an Employment Tribunal will consider the following factors:

1. Had the employer got reasonable grounds on which to sustain its belief?

2. Had the employer carried out as much investigation as was reasonable?

3. Was the dismissal a fair sanction to impose?

The investigative process is important for a number of reasons: it enables the employer to discover the relevant facts to enable it to reach a decision as to whether the misconduct occurred; if properly conducted it secures fairness in providing the employee with the opportunity to respond to the allegations made; and even if misconduct is established, it provides an opportunity for any mitigating factors to be put forward which could affect the appropriate sanction.

Your invitation to the disciplinary hearing would appear to suggest that you have made a prejudgement of the outcome and that the hearing itself will be no more than a step along the procedure which must be undertaken in order to dismiss this employee and not a proper investigation into the allegations. The right to be heard and to have a fair hearing is one of the basic principles of natural justice and is enshrined in the Human Rights Act 1998 and the employee must be given an opportunity to state his case before a decision is reached. Without an appropriate investigation, the employee will have a good chance of successfully bringing a claim for unfair dismissal in an Employment Tribunal.

Most importantly at this stage, you must ensure that the disciplinary hearing is held before the final decision is made, it is procedurally fair and follows the rules of natural justice. Section 1 paragraph 9 of the ACAS Code of Practice on Disciplinary and Grievance Procedures provides useful guidance on conducting a disciplinary hearing and is available from their website www.acas.org.uk. You may also need to consider asking a colleague who has not been involved in the investigation to date but will be a party to the decision as to whether or not to dismiss the employee, to take over your role in the procedure. This should help to ensure that there can be no further allegations of prejudgement or bias. It is also advisable to reissue an invitation which explains that the employee is requested to attend in order to aid the investigation into claims that he had lied to cover his negligent behaviour and explains that your colleague will now be conducting the hearing.

Yours sincerely

Jane Byford

Partner

Martineau Johnson

Jane Byford - Martineau Johnson
Online advisor - 9 posts

Dear Brian

Thank you for your recent query.

As you will be aware, from 2 December 2003 new legislation was introduced which formalised and extended the rights of employees of any faith to take time off work for religious observance. This could be an entire day to celebrate the Muslim festival Eid, for example, or 10 minutes at particular times of the day to pray.

The Employment Equality (Religion or Belief) Regulations 2003 prohibit direct and indirect discrimination on the grounds of religion or belief. However, there is no express right for employees to take time off for religious purposes, so employers do not have to grant requests if they conflict with operational needs. However, employers do risk liability for direct discrimination if they refuse to grant leave because of the employee's religion or belief. They also risk charges of indirect discrimination if they have company rules or practices that are disadvantageous to employees of a particular religion or belief and which cannot be justified for other reasons.

Normally employees will be expected to use their existing holiday entitlement to take time off for religious observance and no extra holiday need be granted. However, you may have issues with when holiday is taken. For example, if you require employees to take a certain proportion of their holiday at Christmas this could disadvantage employees of other religions than Christianity.

Employers are not legally bound to grant every request for time off for religious observance, but they are required to consider requests and justify any negative responses. Problems could arise if the time that the employee wants to take off conflicts with operational requirements. Employers are entitled to refuse requests, as long as they can prove there is a valid reason for doing so.

It may be useful to ask current employees about their religion so that the Company can make provision for prayer times and for the observance of various religious festivals. Employees are not however, obliged to disclose this information to you and any request that you make should make it clear that you want this information because the Company celebrates and values the diversity of its workforce and aims to create an environment where the cultural, religious and non-religious beliefs of all its employees are respected. It is not advisable to require job applicants to declare their religion on a job application form, such a request could expose you to a potential claim for discrimination on the grounds of religion or belief if the applicant is unsuccessful.

Similarly, you should not ask either your current staff or job applicants to disclose their sexual orientation. The Human Rights Act 1998 ensures that everyone has the right to respect for his private and family life and any such request from the Company could be seen as prejudicing those rights. The Employment Equality (Sexual Orientation) Regulations 2003 prohibits direct and indirect discrimination on the grounds of sexual orientation and enables an employee to make a Tribunal claim against you if they felt this information had been used to discriminate against them in any way. In interviews therefore, it is good practice to avoid questions in relation to marital status, children or anything which might be taken to be an enquiry into sexual orientation, religion or belief.

I trust this answers your query, but please do not hesitate to contact me if you require any further advice.

Yours sincerely

Jane Byford

Partner

Martineau Johnson

Jane Byford - Martineau Johnson
Online advisor - 9 posts

Dear Shirley

Thank you for your recent query.

From the information you have provided it sounds like although the dismissal will be connected with the transfer it will be for an economic, technical or organisational reason and therefore will be potentially fair, provided that correct procedures etc are followed. However, you would be wise to protect your business? position by the use of a Compromise Agreement.

One point I ought to mention is that although most claims under TUPE can be compromised, it is not possible to compromise a claim in relation to the transferor?s failure to consult. You, therefore, need to ensure that proper consultation takes place.

Whether the £30,000 can be paid free of tax will depend on whether it is genuinely compensation for loss of office or whether it is a contractual payment. If there is a payment in lieu of notice clause in the employee?s contract of employment, then this part of the payment will be taxable. Any payment in respect of outstanding holiday, outstanding pay and benefits etc will also be taxable. Only the genuinely compensatory element of the payment will be tax free up to £30,000 and it is important that this figure is identified separately in the Compromise Agreement, that it is stated as being a non-contractual termination payment and that the parties understand that it can be paid tax free. To protect your business I would also recommend inserting a tax indemnity.

It is always best to list every type of claim that is to be compromised in the Compromise Agreement and to make it clear that the employee will not be entitled to bring any claim in respect of holiday pay etc as well as the normal statutory claims.

I would be more than happy to draft a Compromise Agreement for you should you so wish and anticipate that the cost would be in the region of £250 to £500 plus VAT, depending on the complexity. Please contact me at jane.byford@martjohn.com if you would like me to carry out this work for you.

Yours sincerely

Jane Byford

Partner

Martineau Johnson

Jane Byford - Martineau Johnson
Online advisor - 9 posts

Dear David

Thank you for your recent query.

You cannot unilaterally impose a variation in an employee?s terms and conditions of employment without his consent, particularly where this involves a reduction in salary and a demotion, without leaving the company wide open to a claim of constructive dismissal.

If the employee was to agree to the variation, then it would be important to set this out in writing and get the employee to sign his agreement.

This sounds to me like a redundancy situation, i.e. you no longer require an employee in a managerial position. I assume that this employee is the only person who occupies this type of role and therefore that he is self-selecting rather than you having to go through a selection process. In any event, you will need to go through a fair consultation process with him and consider alternative employment. It may well be that his old role is not reasonable alternative employment and he can refuse it and take redundancy instead. If he does revert to his old role he will have a 4 week period in which to decide whether or not it is suitable and if he decides during this period it is not again he can take redundancy instead.

One concern I do have is whether in fact the only reason you are thinking of demotion is that the employee is not up to the managerial role. If this is the case a performance procedure including warnings and a chance to improve should be followed, rather than dressing this up as a redundancy situation.

I trust this clarifies the position, but please do no hesitate to contact me if I can be of any further assistance.

Yours sincerely

Jane Byford

Partner

Martineau Johnson

Jane Byford - Martineau Johnson
Online advisor - 9 posts

Dear Shirley

Thank you for your recent query.

As this employee?s employment transferred to the current employer under TUPE two years ago, this means that the employment is treated as if the original contract had been entered into with the current employer, not the original employer, and all rights and liabilities transferred, including continuity of service.

If the employee leaves the current employer the employment would terminate and the period of continuous service would cease. The new contract with the original employer would be a completely new employment and there would be no continuity of service.

Yours sincerely

Jane Byford

Partner

Martineau Johnson

Jane Byford - Martineau Johnson
Online advisor - 9 posts

Dear Dean

Thank you for your recent query.

Under the Working Time Regulations a worker whose daily working time is more than 6 hours is entitled to a rest break of an uninterrupted period of 20 minutes, which the worker can take away from his/her workstation. Your part time worker works less than 6 hours a day, so is not legally required to have a rest break. However, your full time workers are legally required to take a break.

It is open to you to provide for contractual rest breaks over and above the requirements of the Working Time Regulations. Normally one would expect these to be paid, but this does not necessarily have to be the case. If the employee?s contract sets out the hours she is required to work and she is now objecting to these, she may be in breach of contract for refusing to work to that pattern.

Although there is now legislation protecting the rights of part time workers (Part Time Workers (Prevention of Less Favourable) Treatment Regulations 2000) and providing that part time workers should not be treated less favourably than full timers without objective justification, these rights do not work the other way round and there is nothing to prevent a full timer being treated less favourably than a part time worker.

Yours sincerely

Jane Byford

Partner

Martineau Johnson

Jane Byford - Martineau Johnson
Online advisor - 9 posts

Dear Christopher

Thank you for your recent query.

Casual members of staff, if they are employees, have the same employment rights as permanent members of staff. They are entitled to receive statutory minimum notice on the termination of their employment, should be paid at least the national minimum wage, will be protected by the Working Time Regulations etc.

They should also be given written statements of the main terms and conditions of their employment within two months of commencing employment.

However, whether they have the right to claim unfair dismissal will depend on whether they have 12 months? continuous service. Even if there are gaps in service, continuity may be maintained if the intervals between periods of employment are short in relation to the combined duration of the contracts. Therefore, it is necessary to look backwards and if a casual employee has worked 6 months of the year for 10 years it may be arguable that his employment was continuous. Likewise an employee only engaged during term time may well be able to argue that their employment is continuous.

If an employee does have more than 12 months? service they you will need to have a fair reason for their dismissal and you will need to follow a fair procedure.

Yours sincerely

Jane Byford

Partner

Martineau Johnson

Jane Byford - Martineau Johnson
Online advisor - 9 posts

Dear Harold

Thank you for your recent query.

Employing people who live on site and are required to carry out on call duties is potentially very problematic and it would be impossible to summarise all the employment issues this could involve in a response as brief as this, but I set out below some of the main issues to consider.

The first issue is on what terms the employees occupy the accommodation. It seems to me that they are required to live on site for the proper performance of their duties and therefore they probably have a service occupancy which will automatically terminate when their employment terminates. What you will want to try and avoid is a service tenancy, whereby your ability to recover possession of the premises on the termination of employment would be much more limited. Ideally this should be spelt out in a service occupancy agreement.

From a health and safety point of view, you will have the normal duties to provide a safe working environment, but when employees reside on the premises the accommodation provided should also comply with health and safety requirements.

Under the Working Time Regulations an employee?s average working time should not exceed 48 hours a week, unless the employee has opted out of this provision. As time spent on call may well be working time it would be wise to get the employees to sign opt outs. You will also need to ensure that they receive adequate rest breaks and holiday under the Regulations.

One of the most problematic areas for you may well be the National Minimum Wage Act. You will need to ensure that these employees are paid the national minimum wage in respect of all the hours they work, which could potentially include time spent on call. Records should be kept of the actual hours worked so that you can ensure that the legislation is complied with.

I trust that this gives you some idea of the kind of issues you need to be thinking about.

Yours sincerely

Jane Byford

Partner

Martineau Johnson