Gamlins Employment Law: January 2014

Wednesday 29 January 2014

Health and Safety Respite for Employers: Deregulation Bill

Deregulation Bill

The draft Deregulation Bill has been published by the Government which aims to reform rules about health and safety, apprentices and employment law. The idea behind the bill is to reduce red tape and ease the burden on businesses.

In order to become law the Bill requires approval from Parliament; however it is certainly a step in the right direction for employers who feel strangled by regulation.

Over 1,900 regulations are in line to be reduced or scrapped altogether and it would amend 182 pieces of legislation. Measures include removing health and safety rules for self-employed workers in low risk environments potentially saving £300,000 a year. In addition it would exempt hundreds of thousands of small businesses from health and safety inspections.

The planned introduction of a new portable Criminal Records check will ease the administrative burden on employers, meaning results can be viewed online and save the need for new checks for many cases.

We will be keeping an eye on the Bill and will update on its progress. Subscribe to our blog for automatic updates and to keep abreast of issues affecting employers and employees on a weekly basis.

Gamlins are Employment Law specialists based in North Wales with a wealth of experience advising employees and businesses across the region.

Elissa Thursfield elissa.thursfield@gamlins.co.uk

Monday 20 January 2014

Maternity Leave: Returning to the Same Job

Kelly v Secretary of State for Justice is a recent Employment Appeal case which has provided some clarification on the rights of women on maternity leave who return to the workplace.

In this case Ms Kelly worked as a Healthcare Officer in a prison and had done so for 15 years. Her contract of employment stated she was a ‘prison officer’. Ms Kelly went on maternity leave and when she returned to work the healthcare work had been outsourced and the only job available to her was as a prison officer.

She claimed Regulation 18 of the Maternity and Parental Leave Regulations 1999 had been breached. This regulation states that a woman who goes on maternity leave is entitled to return to the same job. She claimed that she only spent 5% of her time in 15 years working as a prison officer. She lost at Tribunal and brought an appeal. The Tribunal had stated her contractual position was a prison officer therefore it was suitable for her to return to it.

The EAT (Employment Appeal Tribunal) allowed her appeal and stated the Tribunal made a mistake by stating that because her employment contract described her as a prison officer, it must be suitable and appropriate for her to return to this position after her maternity leave. The EAT stated there were other matters which the Tribunal should have addressed first, such as the matter of her nurse training, the changes that would take place to her work patterns and the actual work she completed. It was premature of the Tribunal just to look at the employment contract.

The case has been sent back to the Tribunal to be reheard.

If you have any questions about Maternity Leave or want to know whether the Maternity arrangements you operate in your business are compliant with the law, don’t hesitate to get in touch.

Gamlins are Employment Law specialists based in North Wales with a wealth of experience advising employees and businesses across the region.

Elissa Thursfield elissa.thursfield@gamlins.co.uk

Thursday 16 January 2014

Health and Safety at Work: £20K fine for overturned tractor

Bristol City Council were recently fined due to health and safety failings after their park keeper suffered injuries when she was thrown from a tractor.

The HSE (Health and Safety Executive) investigated the incident and found that the park keeper was driving the tractor in line with her duties towing a trailer, she braked on a slope causing a skid, she turned to avoid a fence but the tractor overturned and she was thrown from her seat.

The HSE prosecuted the Council finding that there was no seat belt or restraint and the Council failed to ensure she had received adequate training on the use of the tractor. The tractor had also been acquired without the normal procurement procedure and no supplier training was provided.

The park keeper suffered a broken pelvis and was off work for a year, she has since had to return to a job behind a desk and can no longer work as a park keeper.

The HSE considered the incident to avoidable and noted the employee suffered considerable pain and distress and unable to use her three years of training as a park keeper, she will also require further surgery.

Bristol City Council of City Hall, College Green, Bristol, was fined a total of £20,000 and ordered to pay £4,700 in costs after admitting two breaches of the Provision and Use of Work Equipment Regulations 1998.

Keep your employees safe at work and ensure that you have adequate systems in place to protect you and your business. HSE prosecutions take place in the criminal court system and can result in directors having a criminal record. In addition businesses could face civil claims from their employees for compensation. For further information about health and safety at work, or to discuss and accident at work please get in touch.

elissa.thursfield@gamlins.co.uk

John Hoult: http://gamlinslaw.co.uk/people/
Ron Davison: http://gamlinslaw.co.uk/people/
Sion Williams: http://gamlinslaw.co.uk/people/
Elissa Thursfield: http://gamlinslaw.co.uk/people/

www.gamlinslaw.co.uk

Wednesday 15 January 2014

Dismissal of Employees: Effective Notice of Termination

Effective Notice of Termination

The EAT decided an interesting case in relation to the alleged termination of a teacher’s employment, Birmingham City Council v Emery

Ms Emery was a teacher at Benson Community School who was dismissed due to lengthy absences for health reasons. As she worked for a community school, legislation dictates that although the decision to dismiss comes from the governing body of the school, the actual employer is the local authority.

In this instance the Ms Emery was notified by the governing body that she was being dismissed, the following day the local authority wrote to her serving notice that her contract had been terminated. The EAT held that the notification from the governing body was not the act which terminated her employment contract.

Why was this so important? In this case had the dismissal been on the earlier date (when the governing body notified Ms Emery), she would have been given sufficient notice. However, as valid notice was not served until the next day when Ms Emery was notified by the local authority the EAT held the deadline had been missed and Ms Emery was entitled to payment of notice (£8,104).

Lessons learned? Employer should ensure they

- are serving effective notice of termination, if you are not sure, take advice

- know the date termination was served, time limits and deadlines can cost you money

- are familiar with the terms of their employee’s contracts

Gamlins can provide a ‘health check’ for your employment needs, drop us a line to discuss how we can mitigate risk to your business. As a North Wales firm we want to help businesses across the region with their employment needs.

Call 01745 343 500 and ask to speak to a member of our Employment Team

Our Employment Solicitors are:

John Hoult: http://gamlinslaw.co.uk/people/
Ron Davison: http://gamlinslaw.co.uk/people/
Sion Williams: http://gamlinslaw.co.uk/people/
Elissa Thursfield: http://gamlinslaw.co.uk/people/

www.gamlinslaw.co.uk

Monday 13 January 2014

Tribunal Costs: Financial Penalties for Employers who lose at Tribunal

Financial Penalties for Employers who lose at Tribunal

April 2014 will see a dramatic change in the Employment Tribunal System. Tribunals will be given the power to impose a levy on an Employer who loses at Tribunal. The levy will be at the Tribunal’s discretion; however once they decide to enforce the levy the rate payable will be fixed. At present this is set to be 50% of the amount of compensation awarded, though there is a cap of £5,000.

Tribunals are to use the levy where an employer has committed ‘aggravated breaches’ in respect of employment law. This has yet to be fully explained by legislation and therefore at present leaves a very wide discretion for the Tribunal.

The new measures could be a source of worry for employers who make a genuine mistake, though so catastrophic it could be seen as ‘aggravated’. Unlike claimants, the Tribunal process can be very expensive for employers, not only in terms of the time and resources, but also for their reputation and staff morale. The added strain of a levy on top of a financial award could see cash strapped employers seeking to settle, raising questions of the ‘price of justice’.

Employers are advised to keep their houses in order, ensure their HR team and managers are up to date on their training, keep employee documents up to date and ask you solicitor for a ‘health check’ to help root out any brewing problems.

elissa.thursfield @gamlins.co.uk

Need a solicitor?

Friday 10 January 2014

Supreme Court Decision: Injunction to stop disciplinary hearing

In West London Mental Health NHS Trust v Chhabra the Supreme Court has overturned the CA decision and has granted an injunction preventing the NHS from holding a disciplinary hearing.

Where a disciplinary procedure forms part of an employee’s contract of employment, as opposed to being a non-contractual policy, civil remedies can be used for breach of contract during disciplinary proceedings.

In this case a consultant psychiatrist was facing allegations of gross misconduct. An injunction can be caught to prevent a party to a contract from committing a breach, and can therefore be used where a disciplinary procedure forms part of a contract of employment.

The injunction prevented the disciplinary hearing from going ahead, with Judge Hodge stating the allegations against Dr Chhabra were not capable of being gross misconduct on the wording of the disciplinary procedure and that the decision taken to refer the matter to a conduct panel had constituted a breach of contract.

Although the Court acknowledged as a general rule it was not appropriate for the courts to intervene and ‘micro-manage’ disciplinary proceedings, it was felt in this case it was serious enough to justify intervention.

This case may therefore be in reality an exception to the rule, however the capability for an employee to enforce their contract in the civil courts is clearly present. Employers should take note where disciplinary procedures form part of a contract of employment, as although actions are likely to be rare, the costs in civil proceedings can be extortionate with the possibility of a costs order if the employee is successful.

Employer should be wary of the way disciplinary procedures are conducted and ensure they follow their own rules to not only protect themselves from incidents such as this, but also unfair dismissal claims. Policies should be clear on what constitutes gross misconduct and staff should be sufficiently well trained on implementing the procedures.

Unfair Dismissal: Employers Must Consider Mitigation

Unfair Dismissal: Employers Must Consider Mitigation

Vincent T/A Shield Security Service v Hinder

This Employment Appeal Tribunal case provides guidance for employers on the disciplinary process when dealing with employees with a clean employment record.

In this case the claimant was a security guard who was on duty when the premises were broken into. Following an investigation the employer found that the claimant had smoked two cigarettes while walking through the premises.

The claimant apologised, he had a clean employment record and was otherwise a good employee. The employer suspended him and he was eventually dismissed.

The Tribunal found that the employer had not considered any mitigating circumstances before dismissing, and that the disciplinary policy was unclear. On appeal the EAT stated the Tribunal had been correct, by dismissing on the facts of the case without any consideration of any alternatives, it was not the action of a reasonable employer and was not within the band of reasonable responses.

Employers should ensure their disciplinary and grievance policy is well drafted and is fit for use. Training staff on the process is crucial, as action by an employee which may be initially considered to be gross misconduct must not be predetermined prior to an investigation. In order to take an employee through a fair process this case shows employers must look at all the surrounding facts and see what the employee has to say for themselves.