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By michaelscutt, 14/09/2009 9:00 am

As an employer, if you want to avoid your name appearing in the Metro or any of the other free papers, try to avoid sacking employees suffering from cancer by email.  This is the moral from the recent report concerning Melinda Bolnar, a 27 year old teacher suffering from bowel cancer and who had just endured seven months of chemotherapy and given a 30% chance of survival.  According to the report it is alleged that her private school sacked her by email.  I should point out that the case is due to be heard at an Employment Tribunal later this year and the above report are merely the employee’s allegations against her employer and not the proven facts.

The report probably doesn’t give the whole story but it certainly gives the impression that Melinda was sacked without any form of disciplinary or capability procedure.  If that genuinely is the case the school might find themselves in difficulty when the case does reach the ET.

So (assuming that is what happened) what should an employer do if it wants to terminate the employment of an employee suffering from long-term illness?

The first and most important question is why should the employer want to terminate the employee’s employment?  This will be at the heart of any subsequent litigation that may arise.  The usual answer given by employers is that they could not afford to keep the position empty whilst the employee was away or that temporary cover could not be extended indefinitely.  Much will depend upon the role performed by the employee and the extent to which it is reasonable for the employer to reach the conclusion that dismissing the employee was reasonable in all the circumstances.  The size and resources of the business will be important too. What action might be reasonable for a small employer to take will be greatly different from a multi-national PLC or, for example, the NHS. How the employer treated other staff in similar circumstances on other occasions will be relevant: what are the contractual sick pay provisions, if any?

There are only a limited number of grounds on which dismissing an employee will be fair.  They include capability to do the job.  This can mean lack of ability of the employee to fulfil their role (i.e. incompetence) or it could include inability to do the job through sickness.  Problems can arise for an employer when the employee takes lots of short periods of time off sick (whether genuinely or otherwise) but when, as in the type of case under discussion here the employee is off for weeks or months.   

A prudent employer will properly investigate the reasons for the employee being absent and will try and establish when they might return.  This will need to be done with sensitivity and tact, which means good communications between employer-employee are going to be vital to make this work.  It will probably need medical evidence to be obtained and a well-drafted contract of employment should include a clause which allows the employer to send the employee to a doctor of its own choosing.  If the medical evidence suggests that the employee will be fit to return to work, even if on a gradually stepped basis at first, in a fairly short space of time, the business will need to think long and hard before dismissing.  On the other hand, if the absence looks like being lengthy then the employer may be justified in bringing the employment relationship to an end, provided it does so on grounds of (in)capability.

Where difficulties arise (as in Melinda Bolnar’s case) is where the employee feels there are other grounds for dismissal.  The Metro report states that she is suing for disability discrimination.  Much will depend, as usual, on who said or did what and when.  To avoid difficulties of this sort an employer needs to act clearly and openly about what it is doing and why. 

It needs to follow a proper process, as laid down by the ACAS Code of Practice introduced this April. In brief this means the employer investigating properly, inviting the employee to a meeting to discuss the issues, allowing them to be accompanied by a work colleague or Trade Union representative and to make their point.  Finally, the employee should be informed of their right to appeal the decision if it goes against them.  If the employer gets it wrong they can not only face a claim for unfair dismissal (with the potential for the award to be increased by up to 25% if they are deemed to have acted unreasonably) but also a claim for disability discrimination.  Claims under the DDA are not capped at the £66,200 maximum compensatory award, as with unfair dismissal cases.

Of course, all the above leaves aside the moral issue of whether it is the right step to take but and Courts/Tribunals don’t make judgments on moral grounds: the newspapers do that.

If you are an employer or employee requiring further advice on any of these issues, please get in touch with me at michaelscutt@dalelangley.co.uk or on 0207 464 8433

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By michaelscutt, 08/09/2009 4:11 pm

My friend Richard Gordon is taking part in the above cycle challenge later this month to raise funds for St Francis Childrens’ Society in Milton Keynes, as well as the RNLI, Prostate Cancer Charity and a local charoty called MK Snap for people with special needs.

They have committed to cycling (in relay) 500 miles through and around the Loire.  Donations can be made via this address

http://www.justgiving.com/teamfrankieskids/

Good luck guys!

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By michaelscutt, 02/09/2009 9:00 am

Most people know that employers these days shouldn’t in job interviews ask women of child-bearing age when they intend to start a family.  Nor should they now ask potential employees how old they are.  The reason in both cases is that (a) it is usually going to be none of the employer’s business but, also, (b) it runs the risk of the applicant/employee later stating that the failure to appoint them was on discriminatory grounds. A report on the Personnel Today website from a few days ago questioned the wisdom of Cherwell District Council in asking employees to state whether they intended to retire in the next two or three years.  The Council is currently asking staff to work fewer hours or to work without pay to avoid the need for redundancies.  However, its request to staff to detail their plans and aspirations over the next two to three years could lead to them facing an age discrimination claim, suggests the article, if an employee could show that they were selected for redundancy because of their stated plan to seek retirement.  The same risk would apply if a woman stated she intended to start a family and was subsequently place “at risk”. 

The central difficulty in any such case is proving that the employer selected the employee for redundancy on discriminatory grounds.  I recently advised a client who was made redundant having advised his employer some months earlier that he intended to emigrate in a few years’ time.  He suspected that the employer therefore saw him as someone who wouldn’t be with the business long term and was this less likely to be as upset about having his employment terminated compared with someone who was, apparently, fully committed.  The employer, of course, denied that factor had played any part in their decision and the matter settled without Employment Tribunal proceedings.

Employers may see asking employees about their future plans as being a much easier way to select candidates for redundancy, but it is fraught with danger and may well embroil the employer in unwanted litigation if it took any action of any sort against the employee. Discrimination claims are not subject to the maximum cap on compensation that applies in unfair dismissal claims (and currently stands at £66,200). An employee who considers that their selection for redundancy was unfair can bring a claim for unfair dismissal (provided they have at least 12 months continuous employment experience of course) but that claim will be limited by the cap: not so with a claim based on discrimination as the reason for selection. Note to employers: just don’t do it.

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By michaelscutt, 01/09/2009 9:00 am

There are some things you just don’t expect to come across, like good weather at Bank Holiday weekends for instance, or Amnesty International being found by the Employment Appeal Tribunal to have discriminated against one of its employees on the grounds of race.  Yet that is what was found to have occurred in the case of Amnesty International v Ahmed that was reported recently. 

It’s an interesting case and not just because of the involvement of Amnesty in it. It states that the motivation of the employer in taking the action it did is irrelevant if the action taken is discriminatory in itself.  In this case Amnesty refused to appoint Ms Ahmed, a Sudanese lady, to be its Sudan researcher because it perceived there to be two potential difficulties with her appointment.  Firstly it was concerned that her impartiality might be called into question, especially given the sensitivity of the conflict in the Darfur region and because she was from north Sudan. Secondly,  Amnesty was worried for her safety and those working with her because of her nationality.  Consequently it decided that she should not be appointed to the role, despite the fact that she waa the best qualified for it.  A claim for race discrimination followed and Ms Ahmed succeeded.  Amnesty was held to have directly discriminated against Ms Ahmed on grounds of her racial origins.

A further argument by Amnesty that to have sent Ms Ahmed to Sudan would have caused them to breach health and safety law was not accepted by the EAT. 

The lesson for employers here is that any steps that might discriminate against an employee on the grounds of race (or sex) even when, as in this case, there might be seemingly sensible or benign reasons behind the decision, may well amount to discrimination.  Employers beware!

Thanks to Daniel Barnett’s case law update for bringing this to my attention.

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By michaelscutt, 24/08/2009 12:24 pm

I am delighted to announce that I will be writing the Employment Law resource on Insite Law, the online legal resource page run by Charon QC.  It is designed to be an online textbook, with hyperlinks to cases and to be capable of being updated regularly so that it remains current.

It is part of his initiative  to get more legal materials online, for free.  It is anticipated that the resource will be of most use to students, but it could also be helpful for practitioners in other disciplines who just want a quick introduction.  I have volunteered to cover employment law and am just in the process of getting started. It’s a daunting prospect at this stage as there is a lot to cover but, when finished, I hope it will be useful to readers and also complement the issues raised in this blog.  It will be published in instalments, which is just as well as I don’t fancy writing 300 pages by the end of the month.

Click here for a link to Charon QC’s announcement and for more on the project as a whole.  Charon QC has covered the law of contract and the law on Sale of Goods.  He is also writing on Tort.  Other contributors, like  Peter Groves of the Ipso Jure blog writing on Intellectual Property, have also come on board.  Hopefully most areas of law will be covered in the fullness of time.

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By michaelscutt, 24/08/2009 9:00 am

Now, if this doesn’t provoke a whole heap of comments, no doubt mainly derogatory, nothing will.  This being the silly season it seems like an ideal time to ask the question.  And I’m not going to tell you the answer. Instead I suggest you read Tim Kevan’s new book “Baby Barista and the Art of War”, just published by Bloomsbury and which is based on his blog in The Times.  Tim is also a barrister, albeit he is currently taking a break from practising in favour of surfing in Devon and walking his dog.   

It’s a thoroughly amusing read and should be required reading for anyone contemplating a career at the Bar (or as a solicitor, we don’t come out too well either).  It’s the story of a “Pupil” (newly-qualified) barrister training in Chambers trying to outwit and outmanoeuvre the three other pupils in the hunt for the holy grail at the Bar; a tenancy in Chambers.  The characters are all vividly drawn and credible; the situations the characters find themselves in all give a real flavour of litigation from the side of the practitioner.    There’s plenty to amuse both lawyers and non-lawyers alike.

It’s not just a comedy though.  He also touches on big issues such as the independence of the Bar which will become much more of a live issue now that solicitors and barristers can go into partnership together since the introduction of Legal Disciplinary Partnerships last April.  For instance,

“For all their supposed independence, most barristers seem to live in a state of complete paranoia and spend so much time kowtowing to solicitors that their independence is worth even less than their pride”

You’ll also read the best explanation of why you shouldn’t sign up for a no win no fee agreement to fund your case, but instead get legal expense insurance in advance so that the lawyers don’t start worrying about how they are going to get paid.  No win no fee agreements do create a conflict of interest between lawyer and client and the question of how they (we) get paid becomes “a big fat ugly screaming beast jumping up and down on their head”.  Too true.

It’s a good holiday read – list price is £11.99, but considerably cheaper from Amazon.

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By michaelscutt, 18/08/2009 9:00 am

One what you might ask?  To avoid potentially unpublishable suggestions, let me just clarify that Jobsworth – the employment law blog is one year old today.  It is, incredibly, one whole calendar year since I started this blog, which arose out of a newspaper column I was then writing.  95 posts later I’m still enjoying writing it but, more importantly, I hope you enjoy reading it.  To all of my regular readers may I say thank you for your support and kind comments? Some of you have even been kind enough to instruct me at Dale Langley & Co, where I do my day job.    I’ve had some very positive feedback on what I’ve written, which has been helpful.  If there are any topics you would like to see covered please let me know.

My posts on the alternatives to redundancy, such as pay cuts and working for free, have been the most popular to date.  I’ve spent most time writing on redundancy (not surprising given the times we live in) and not a great deal on unfair dismissal.  This I will be rectifying over the coming months as the blog hurtles into that awkward period between being able to crawl and before the terrible twos.  Time for a celebratory Farley’s rusk methinks.

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By michaelscutt, 14/08/2009 2:09 pm

I was pleased to learn that Riam Dean, the law student who sued Abercrombie & Fitch for wrongful dismissal and unlawful harassment (because of her disability) won her case at the London Central Employment Tribunal.  According to The Independent today, she was awarded £7,800 compensation for injury to feelings, £1,077.37 for loss of earnings and £136.75 damages for being wrongfully dismissed.  It is reported that she did not succeed with her claim for “direct” disability discrimination which the ET thought was “not well founded”.   I would be interested to read the law report on this case, if it ever gets published, for the reasoning behind the decision. I’ve posted before on the case (click here).

It’s always good to see the style police take a battering.

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By michaelscutt, 12/08/2009 10:44 am

The FT is reporting today that the FSA has finally produced its remuneration code on how bankers should be paid.  I have only seen the headlines and brief summary of the proposals, but it seems that the FSA has shied away from being too prescriptive for fear of driving bankers abroad to less tightly regulated markets.  Expect a deluge of criticism to fall on top of the FSA, whose days are numbered if the Tories return to power at the next election.

The draft code stipulated that two-thirds of each bonus should be deferred and that individuals should be rewarded on the basis of the firm overall rather than just the individual or the business unit.  Apparently that isn’ t in the code to be published today. I posted last week on bonuses and clawbacks – click here to read it.

Undoubtedly the FSA will be criticised for not taking a more rigorous line, yet it is in a situation where it is damned if it does and damned if it doesn’t.  If they had produced a very stringent code the institutions would accuse the FSA of destroying London’s competitiveness as an international financial centre.  Other international regulators are not taking a hard line so why should the FSA?  In my view it would be a bad move to have a government body dictating pay – like the failed prices and incomes policies of the 1970s – and ask yourself this: if the state starts dictating what bankers can be paid, who will be next up for regulation?

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By michaelscutt, 12/08/2009 10:20 am

I  spent a good part of yesterday evening preparing a seminar that I have been asked to give at the City Business Library on 20th October next.  The topic handed to me is the title to this post: “Contracts of Employment: what you need to know”, to cover one hour.  The seminar is aimed at new businesses looking to take on staff for the first time.  At first glance I thought it would be an easy topic, one I am very familiar with, nothing too controversial and plenty of time for discussion afterwards.  Then, on my way in to work this morning, tapping out a skeleton presentation in Powerpoint on the trusty laptop, I realised just what I have let myself in for. 

The topic is huge.  You could spend an hour discussing what actually constitutes an employee before you even get on to discussing the information that has to be given to a new employee under s.1 of the Employment Rights Act 1996 (click here to view the BAILLI database for the full test of s.1). If you follow that link  you will see that s.1 requires the employer to write to the employee setting out the main terms of the employment, the name of the employer (not as silly as it might seem at first glance), the date the employment began and any periods of continuous employment to be taken into account, job title, place of work, the amount and rate of pay and many other important “housekeeping” issues.  The s.1 statement must be given within two months of the employee starting work, failing which the employee could complain to an Employment Tribunal for a declaration of the applicable terms of employment.  In other words, the ET would decide what the terms and conditions of employment will be (or were if the employee has since left); a potential double-edged sword which is why not many complaints under s.1 ERA get made to ETs.

In many cases a business will describe someone as “self-employed” when, in reality, they are an employee, in an attempt to avoid the individual acquiring the right to sue for unfair dismissal. The taxation treatment of the individual isn’t enough.  In other words, if someone is not on PAYE that doesn’t mean they are self-employed.  There are many different tests used by ETs to determine whether a person is an employee or not – none of them overridingly conclusive.  Each situation is looked at on its own facts and an ET won’t be blinded by whatever label the person has been given. 

The factors that are particularly important though concern whether there is a need for the individual to provide the services themself, or are they required to find a substitute to perform when they are sick/on holiday.  If yes, then that tends to be suggestive of an independent contractor relationship rather than an employee.  Also is there mutuality of obligation?  Is the business obliged to provide work to the individual?  If no then it is not suggestive of an employee relationship.

A massive topic and I haven’t even got onto disciplinary procedures, notice periods, PILON clauses, restrictive covenants and how to avoid being sued plus a hundred and one other considerations. At least there is scope for further seminars.  More updates to follow in due course.

Of course, if you want any advice on any of these issues please do not hesitate to contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk