Employers and Army Reservists

Volunteer reservists are a crucial part of the Armed Forces, they offer benefits to employers with transferable skills, training and high levels of motivation. Employers can be nervous employing volunteers and reservists, how will it affect my business? Will they be absent for months on end? Is it going to cost me anything?

The MoD chooses individual Standard Volunteer Reservists for duty using an intelligent selection process, which allows the reservist to be selected according to their skills and specialism. It also allows a unit to take account of a Reservist’s personal and employment circumstances.

SaBRE, Supporting Britain’s Reservists and Employers, is sponsored by the MoD to support employers on issue surrounding the employment of Reservists.

Reservists receive military training, which is worth roughly £8,327 per year. The training takes places through the year and at an annual camp, it can either be exercise or classroom based.  The skills covered include teamwork, self confidence, decision making, leadership and presentation skills as well as project management. Reservists typically become more computer literate and adapt to challenges and changes well.

 

If you recruit and employee who is a Reservist, or one of your employees becomes one, the MoD will write to notify you.  The MoD will aim to give you at least 28 days prior to mobilization. There is a right to appeal against mobilization if it will harm your business.  You can get financial assistance with certain costs for finding a replacement and there are exceptions for salary payments, benefits and annual leave during Reservist commitments.

A Reservist is entitled to return from mobilization in their original role, or a suitable alternative with the same T&Cs.  You cannot dismiss a Reservist on the grounds of their Reserve Service duties. Reservists are committed to training throughout the year, with a main camp of 2 weeks, several weekends and evenings during the week.

So what benefits will you experience from having a Reservist on your staff, or other volunteers for that matter? Employees who are volunteers tend to be motivated, confident and willing to work hard. They will achieve not only life skills but transferrable skills that can be valuable in the workplace. Volunteers meet new people regularly and are often required to speak about what they do giving them a valuable boost in confidence for public speaking events.

 

Employing not only Army Reservists but also RNLI volunteers, retained fire fighters and other volunteers can provide a depth of variety to your workforce, and valuable PR. Supporting lifesaving causes through your staff can connect you with your local community and the business world at large.

 

Got any questions about employing volunteers? Call our employment team:

 

Elissa Thursfield 01745 343500

elissa.thursfield@gamlins.co.uk

 

 

 

Holiday Pay Verdict Summary

Holiday Pay Decision

Twitter has been alive with employment updates this morning following the hotly anticipated decision regarding the calculation of holiday pay.

The implications were vast, employers may have been liable for backdated holiday pay claims to take account of overtime and commission.

Judgement was handed down just after 10.30am and while the workers have been successful in claiming that the additional payments which are intrinsically linked to the performance of their duties should be included in holiday pay, the backdated element has been limited by the EAT.

This means employers are unlikely to face a large bill for claims for historic payments, however employers are now likely to have to take account of the decision when making budget considerations. Commentators are expecting pay freezes and a cautious approach to budgets and planning in the year ahead.

The decision may yet be appealed. The full summary is available here: http://www.dlapiperbeaware.co.uk/holiday-pay-the-verdict/

We will update the blog later today with full details.

Is your contractor actually a worker?

Ruling: Self-employed contractor a worker with employment rights

Plastering Contractors Stanmore Ltd v Holden

In this case, an employee accepted £200 in exchange for becoming a self-employed subcontractor. The EAT held he was actually a worker with entitlements under the Employment Rights Act 1996 (ERA) and Working Time Regulations 1998 (WTR).

The Claimant, H was employed as a general laborer from 1997 to 2001.He accepted a one off payment in 2001 to become a self-employed contractor. He was added to the company’s database and he was referred to construction sites upon requests for services. On site he worked under the instruction of the site supervisor and was paid by how much work he completed. The rates of pay were non-negotiable and he was paid based on the supervisors record of his work.

With the exception of his safety boots, which were his own, all other PPE, equipment and transport was provided by the Company. He worked exclusively for the company until May 2013 when he stopped forking without notice.

H had become frustrated waiting at home for referrals to work on site. He took up another position and brought a claim for unpaid holiday pay.

The company disputed his claim stating that they were not under an obligation to provide H with work, he didn’t have to accept work and he was entitled to send a substitute. They stated he was not a worker. The Employment Judge disagreed, he stated he was a worker and for 16 years he had been offered work with an expectation of him turning up for work during working hours, he had been integrated into the workforce.

The company appealed, their appeal was dismissed by the EAT who stated that there was sufficient    mutuality of obligation. With regard to the ability to send a substitute it was found there was no express provision permitting this. The EAT found there was sufficient integration and control for H to be a worker.

Just because an employee agrees to change their status will not necessarily prevent a finding that their status has not changed. The Tribunal will look at the realities of the  relationship,

Remember, employees can bring a claim seeking holiday pay for a 12 year period under the ERA, rather than the WTR which limits to the last holiday year.

 

 

What if Ebola hit the UK? Workforce Planning

Ebola in the Workplace

At the time of writing there have been thankfully no confirmed cases of Ebola in the UK. North Wales was awash with rumours this week after a sighting of an individual from the Bangor area being helped into an ambulance by staff wearing what appeared to be Hazmat suits. The rumour mill went into overdrive until it was confirmed that the patient was not suspected to be an Ebola sufferer and Hazmat suits are worn on occasion for other scenarios.

The US press has been filled with reports of hysteria, travellers in Hazmat suits and criticisms of the way the crisis has been handled. In addition, there has been circulation on twitter of what employers should be doing to safeguard their businesses. It is probably the last thing on most people’s minds, what happens at work if there is a pandemic?

 

Should the worst case scenario become a reality, employers could face mass sickness absence, employees boycotting public spaces and issues with logistics and supply and demand. Workforce issues could be dramatic.

Employers must not panic, if the disease does start to spread they should have an action plan in place for disease prevention, restricting travel to high risk areas and providing information and training to employees. Having protective suits/sanitizers available should the worst happen would also be recommended.

Identify any employees who are a specific risk, this could be more difficult that it first seems, employers will need to be sensitive to their obligations to treat employees fairly under the Equality Act.

Employers should also consider a policy on contagious disease, if an employee suspects they have contracted Ebola if they are aware of the procedure which should be followed in respect of their employment, you may be able to limit the spread amongst your workforce. Consider you sick pay arrangements, employees who only receive SSP are more likely to make their way into work rather than those who receive full pay for a period.

If Ebola were to spread through the UK and your business had staffing issues, do you have a port of call for temporary staff? Does your insurance cover business interruptions due to infectious diseases? If your CEO/board fall ill do you have a contingency plan?

While the concepts discussed may appear at present ridiculous as the UK has no confirmed cases, planning for the worst does not do your business any harm. From an academic perspective if the pessimistic view taken by some experts becomes a reality, employers will have to pay real attention and act quickly to protect their staff and their business.

Reasonable Adjustments and Criminal Convictions

Can an employer be required to discount criminal convictions as a ‘reasonable adjustment’?

 

No says the EAT in Howorth v North Lancashire Teaching PCT.  

The EAT held for the employer to dismiss an employee who had been convicted of theft, battery and dangerous driving did not constitute a failure to make reasonable adjustments. Sounds fair? The convictions listed are undoubtedly serious; however the case itself certainly gives cause for thought.

Were an employer to seek advice in relation to an employee who had been convicted of theft, battery and dangerous driving, it is likely we would give advice on dismissal. In this instance the situation was complicated by medical issues and the traumatic personal issues of the employee.

Mrs Howorth was a health visitor; she had a mental illness (automatism) and was disabled under the legal definition. She had no recollection of events which lead to her conviction. Those events being that she left Asda without paying for her shopping, forced her way from the shop, drove away trapping a person with her car door and with a shopper on her bonnet.

 

Prior to the incident Mrs Howorth was recovering from cancer treatment and a friend had recently passed away from cancer. In addition her husband had left her, her brother in law died and her son left home to go to University.  She was also carrying two caseloads at work as her colleague had gone off sick.

Even a less than reasonable person would have some sympathy for Mrs Howorth, her employer however did not. Mrs Howorth was dismissed following her convictions and her employer refused to re-employ her following her application for a different position.

 

The ET held that the employer had failed to make reasonable adjustments, she had no recollection of the events leading up to her conviction due to her disability, they had refused to consider adjustments to her role as an alternative to dismissal. The ET did however find that the dismissal itself was faire given the nature of the job she completed.

The Employer appealed on the basis that no adjustment could have succeeded keeping Mrs Howorth in work. The EAT agreed and stated although the employer had not fully considered alternatives, it could only breach the duty to make alternatives if there was an adjustment which could have avoided the disadvantage.

Reasonable Adjustments for Carers?

Reasonable Adjustments for Carers?

 

Hainsworth v Ministry of Defence recently provided some useful guidance on the obligation to make reasonable adjustments. The case concerned a carer who worked for the MoD and was based in Germany. Her daughter had Down ’s syndrome and the appropriate education was not available at Ms Hainsworth’s garrison.

 

The MoD rejected her request to transfer to the UK in order to meet her daughter’s education needs. She brought a claim under the Equality Act stating that the MoD had failed to make reasonable adjustments by not changing her place of work.

 

Ms Hainsworth’s claim was rejected by the Employment Tribunal and the Employment Appeal Tribunal. It was held the duty to make reasonable adjustments does not extend to non-disabled employees who are associated with disabled people.

 

Employers are not required to make reasonable adjustments for employees who are carers of disabled people. On appeal to the Court of Appeal it was held that although direct discrimination and harassment require protection from ‘associative discrimination’, the duty to make reasonable adjustments only extends to disabled employees and not to non-disabled employees associated with a disabled person.

 

Employers should be mindful that employees who have caring duties may request to work flexibly and such requests should be handled sensitively and appropriately. There is not however a test of reasonableness associated with flexible working requests, as there is in respect of adjustments for a disability.

 

Employers should keep lines of communication with such employees open and try and maintain a positive working relationship with them while considering the needs of the business.

 

Got any queries regarding carers, reasonable adjustments and/or flexible working? Give our Employment Team a call on 01745343500 or send an email to info@gamlins.co.uk

 

http://gamlinslaw.co.uk/

Case Update: Henman v Ministry of Defence

Criminal Conviction related to Disability: Unfair Dismissal

In Henman v Ministry of Defence, Mr Henman was employed in a civilian capacity by the Ministry of Defence. He lived in shared accommodation provided by the MOD and following being found with video and still images of another employer taken covertly in the shower he pleaded guilty to outraging public decency. He was sentenced to a three year community order. Sackable offence?

 

The Employment Tribunal found that the MOD had unfairly dismissed Mr Henman. It was accepted by the Court that he suffered from Asperger’s syndrome and a number of other mental conditions. He had been dismissed for gross misconduct, which according to the Employment Tribunal was outside of the range of reasonable responses.  It also found that the dismissal was related to his disability and therefore they had breached the Equality Act.

 

The Employment Appeal Tribunal (EAT) disagreed. They stated the Employment Tribunal had substituted its own view on reasonableness instead of assessing what a reasonable employer would have decided. In addition they stated they had made an error is assessing proportionality under the Equality Act, focussing entirely on what the Crown Court had said when they had sentenced Mr Henman. The case was sent back to be decided by a different Employment Tribunal.