by Emma | Nov 11, 2022 | Newsletter
Where an employee has been dismissed for asserting a statutory right, which includes the statutory right to take a reasonable amount of unpaid time off for dependent leave, they do not require the usual 2 years’ minimum employment service to bring a claim for unfair dismissal. A dismissal in that circumstance will be automatically unfair.
The right to take a reasonable amount of time off to deal with an emergency involving a dependent is one that should not be overlooked by employers dealing with absence requests. This right is widely defined in the legislation, as a dependent could mean a spouse, partner, child, grandchild, parent or someone who depends on the employee for care who is not a relative.
The employee in this case had been employed as a machine operator. His partner was pregnant and had some health issues. Following her routine antenatal appointment, she was told to attend an emergency hospital appointment.
This presented a childcare problem for them in terms of taking their child to school and the employee wanted to be able to support his partner at the appointment. He submitted a request to take the day off as holiday, but this request was refused.
The employee sent in further requests for time off, explaining it was because of childcare issues and asked if he could be allowed unpaid time off if not holiday. No response was received and on the morning of the appointment he telephoned his employer to confirm that he would not be able to attend work that day.
When he returned to work the following day, he was called to a disciplinary hearing due to unauthorised absence and insubordination. It was decided that no action would be taken. However, five months later he was called to another disciplinary meeting and dismissed. His manager took the decision to dismiss the employee on the spot as the employee did not yet have 2 years’ service. The reasons cited for his dismissal in his dismissal letter included smoking, returning late from breaks, using a mobile phone and taking drinks onto the factory floor and not following procedures or providing sufficient notice before taking time off. In other words, the statutory right to time off for dependents was part of the reason for the dismissal.
The employee, who had less than two years’ service at the time of his dismissal, claimed that the dismissal was automatically unfair. The employer in this case was a small business. It had never had anyone take dependents’ leave before the employee’s request.
The employment tribunal decided that the employee had been unfairly dismissed on the grounds that the primary reason for his dismissal reason was that he had taken time off work to care for a dependent.
The tribunal found that the employee had complied with the statutory requirements in respect of exercising his right to take time off for this reason in that he had made the request to take leave as soon as possible and informed the employer of where he was when absent.
While the initial disciplinary hearing had not resulted in action being taken, the incident had not been forgotten by his manager and it was expressly referred to in the letter of dismissal.
When giving evidence at the tribunal hearing the employee had admitted smoking at the factory gates from time to time and admitted using his phone on the factory floor, as well as the fact that there was friction between him and his line manager. However, he was adamant that he had not been spoken to in a disciplinary sense about those matters and had not had disciplinary sanctions imposed on him until his letter of dismissal.
Based on the evidence, the tribunal concluded that the other reasons put forward for dismissal had lacked credibility given that other employees had not been dismissed for smoking or mobile phone use on the premises. The employee was awarded just over £8,000 by the tribunal as compensation for the unfair dismissal. This award included a 20% uplift to the award for the employer’s failure to follow a fair procedure by failing to give notice of the dismissal meeting and the failure to hold a fair appeal hearing.
For further information on dealing with domestic/ dependent leave please contact me on 07929506143.
by Emma | Oct 18, 2022 | Newsletter
World Menopause Day – 18th Oct
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| It’s World Menopause Day.
The day is to raise awareness, break the stigma and highlight the support options available for improving health and wellbeing.
We have sent through a few cases over the last few weeks to highlight, that tribunal cases are becoming more frequent in relation to menopause.
What can you do as an employer?
Start the conversation
Just like Mental Health, you need to start the conversation and allow employees to come forward. You need to have an open culture where employee’s feel comfortable talking about their symptoms.
Ideas:
Implement a Menopause Policy
Link your Harassment/Bullying Policy to your Menopause Policy
Provide risk assessments where required
Put up menopause posters in toilets, notice boards, intranet’s etc
Send information/ make information available to employees sign posting menopause to advice and help
Train someone in-house to be a Menopause ambassador. Employees can speak to this ambassador in confidence
Be open to making reasonable adjustments with employees experiencing menopause symptoms
Provide an employee assistance programme, where employees can access help
If you would like further information or you need assistance putting together any of the idea’s above, please let me know. |
by Emma | Oct 10, 2022 | Newsletter
World Menopause day is 18th October and we want to join the conversation.
The day is to raise awareness, break the stigma and highlight the support options available for improving health and wellbeing.
Today we have highlighted another tribunal case which is centred around the menopause.
Case 2
The Claimant was dismissed for poor performance. She informed her employer that she was going through the menopause which was affecting her concentration levels. She even provided her manager with a letter from her GP. Her Manager disregarded her medical evidence and made assumptions based on his wife’s own experience of the menopause. She claimed unfair dismissal and sex discrimination and won on both counts.
The tribunal decision stated, ‘It is self evident that all women will experience their menopause in different ways and with differing symptoms and degrees of symptoms’. The manager should not have based his decision o his own experience with his wife.
If you would like further information on dealing with employees with menopause symptoms or reasonable adjustments please contact me.
by Emma | Sep 16, 2022 | Newsletter
Employee awarded £22k
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| Employers can rely on health and safety grounds for dismissing an employee, provided that they can prove this is the genuine reason for the dismissal.
The employee in this case was employed as a quality inspector in a chicken processing factory and worked in the food production area of the factory. He was a Russian Orthodox Christian and wore a crucifix on a chain close to his chest to signify his commitment to his religious beliefs.
His induction training covered the company’s ‘foreign body control policy’, which stated that, other than a single, plain ring, jewellery must not be worn, with the exception of religious jewellery, which would be subject to a risk assessment.
His line manager noticed his necklace and asked him to remove it because it breached company policy, and he did so. She did not conduct a risk assessment, as she believed the matter to be closed. The employee did not request an assessment because he believed his line manager understood the necklace was worn as part of his faith.
Around this time, the employee had a meeting with a manager to discuss a complaint he had made about bullying by colleagues. The manager noticed he was wearing the necklace and asked if it had been risk assessed. On learning there had not been a risk assessment, she said she would ask his line manager to carry one out. His line manager concluded that there was a risk of contamination because the chain was made of links; she also considered the risks of entanglement, entrapment and tearing. The employee refused to remove the chain and was consequently dismissed on misconduct grounds for refusing to obey a management instruction. He was told that his probationary period and thus his employment would be ended immediately. The employee brought an employment claim on the basis that he had been subjected to indirect religious discrimination due to his dismissal for wearing his religious jewellery.
The employment tribunal noted that at the time of the risk assessment, the employee’s line manager did not discuss the chain in any detail with the employee nor inspect whether the chain was in good condition. There was no conversation with the employee as to whether any steps could be taken to mitigate the risk, such as ensuring that it was tucked into his clothing at all times, or that his Personal Protective Equipment could be fastened up to ensure it was not exposed.
The tribunal heard that his line manager had not conducted such a risk assessment before, that she did not complete all the sections of it and did not consider mitigation such as tucking the necklace securely beneath clothes or under the employee’s Personal Protective Equipment. The employee’s evidence on this, which the employment tribunal accepted, was that he was not consulted on the risk assessment and that the risk assessment was cursory. Accordingly, the employer was unable to show that the health and safety rule which required the necklace to be removed was justified and proportionate based on the evidence. The employment tribunal concluded that the employer had failed to produce evidence which indicated that the health and safety of staff and customers had outweighed the discriminatory effect on the employee of being prohibited from wearing his necklace. This was because the risk assessment had been inadequate.
The employee in this case was awarded just over £22,000 for indirect discrimination.
Health and safety measures in the workplace must be based on a suitable and sufficient risk assessment, rather than a cursory and insufficient one and the management response should be proportionate to the identified health and safety risks. |
by Emma | Sep 2, 2022 | Newsletter
The Supreme Court has concluded in Harpur Trust v Brazel that part-year workers should not have their leave entitlement calculated on the same principle, proportionally, as full-time employees (which would mean that the weeks they don’t work reduce their entitlement), but should have their leave calculated ignoring those weeks. Their entitlement is to 5.6 weeks’ holiday a year, and non-working weeks must be ignored.
The claimant worked during term time under a zero-hours contract, under which her weekly hours fluctuated, and she was required to take her holiday during school holidays. Her contract stated that she had the right to 5.6 weeks’ annual leave.The school calculated her entitlement to holiday pay as 12.07% of the hours worked the preceding term.
The Court held, that when working out holiday pay for workers who only work during term time, it is wrong to apply the 12.07% calculation, or to carry out any pro rata calculation to reflect the fact that they do not work the full year. The Working Time Regulations make no provision for pro-rating.
Although the decision in Brazel is limited to cases of “part-year workers” on permanent contracts, it will affect workers without normal working hours. For these workers a week’s pay will be calculated by reference to the average remuneration over the previous 52 weeks, in respect of which the work received remuneration (up to a maximum of 104 weeks). No account will be taken of weeks in which no remuneration was received. Where there are no normal working hours, supplementary payments such as overtime payments and commission are included in the calculation of average remuneration.
