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Employment Law: An Update. January 2006 Alison Bell. Hot Topics: . Discipline and grievance Long term sickness Changing terms and conditions Compromise agreements. New Legislation:. TUPE 2006 Work & Families Act 2006 Recent Cases What's in the pipeline. Hot Topics .

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Employment Law: An Update

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Employment Law: An Update

January 2006

Alison Bell


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Hot Topics:

  • Discipline and grievance

  • Long term sickness

  • Changing terms and conditions

  • Compromise agreements


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New Legislation:

  • TUPE 2006

  • Work & Families Act 2006

    Recent Cases

    What's in the pipeline


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Hot Topics

Discipline and grievance


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Disciplinary/dismissal and grievance procedures

  • Statutory Dispute Resolution Regulations

  • In 2 parts: Disciplinary/Dismissal Procedure and Grievance Procedure

  • Standard 3 step procedure

    • Put it in writing

    • Meet and discuss

    • Appeal


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The disciplinary/dismissal procedure

  • Mandatory Disciplinary/Dismissal Procedure

  • An additional obligation

  • If the employer fails to comply:

    • Automatic finding of unfair dismissal; and

    • An increase in compensation


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Points to note in the standard procedure

  • Step 1 – Put it in writing, send it to the employee and invite the employee to a meeting

  • Step 2 – Arrange the meeting before action is taken

  • Step 3 – If the employee appeals, invite the employee to a further meeting and inform the employee of the final decision


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Practical implications

  • Post employment disputes

  • Overlapping procedures


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Practical Implications

  • Retirement

  • Redundancy


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Practical implications

  • Probationary periods

  • Fixed term contracts


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Grievance and disciplinary procedures

  • A wide definition of “grievance letter”

    • Solicitor’s letter (open or without grievance)

    • Flexible working request letter

    • Complaint about handling of earlier grievance

  • Solicitor’s letter asking for settlement not an appeal

  • Information required as part of a DDP

  • Employers must not rely on expired disciplinary warnings


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Long term sickness


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ACAS Code of Practice

  • Investigation

  • Establish underlying cause

  • No reason for absence – discipline

  • Genuine illness – capability

  • Sympathetic and considerate approach

    Consultation, consultation, consultation !


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Long term sickness - capability

  • Regular contact

  • Consult employee

  • Employee’s medical evidence

  • Own medical evidence

  • Need to replace


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Long term sickness (2)

  • Warn employee of dismissal

  • Meeting with employee to consider

  • Alternative employment

  • Reasonable adjustments


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Decision

  • Nature of the illness(es)

  • Likelihood of recurrences

  • Other sickness absence?

  • Length of absence


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Decision (2)

  • Spaces between absences

  • Need for particular employee

  • Impact on others

  • Length of employment

  • Consistency


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Varying terms and conditions


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Varying terms and conditions

  • Employment law implications

  • Possible routes forward

  • Contractual change

  • Consultation

  • Redundancy situation


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Contractual change ?

  • Terms and conditions

  • Employee handbook

  • Individual agreements

  • Longstanding practice


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If no contractual change

  • Discuss at consultative forum

  • Individual consultation process

  • Reason for objection

  • Discrimination issues

  • Disciplinary procedure for refusals


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If contractual change

  • How important

  • Business reasons


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Introducing contractual change

  • Four options

    • Through a contractual right

    • By agreement

    • By imposing the change

    • By dismissal and re-engagement


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Imposing the change

  • Resign and claim constructive dismissal

  • Continue to work under protest

  • Claim unlawful deduction from wages (if there is an effect on pay)

  • Claim breach of contract

  • Claim discrimination (eg if there is a negative effect on a particular group of employees)


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Dismiss and re-engage

  • Wrongful dismissal

  • Unfair dismissal whether or not re-engaged

  • Business need, ‘some other substantial reason’


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Redundancy

  • Very significant changes

  • Consultation with employees’ representatives

  • Individual consultation


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Varying Terms and Conditions – Summary

  • Employment Law implications

  • Possible routes forward

  • Contractual change

  • Consultation

  • Redundancy situation


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Compromise Agreements


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  • The technical requirements

  • When to use

  • Without prejudice conversations

  • Tactical considerations


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New Legislation


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Summary of main TUPE changes

  • More transactions likely to be TUPE transfers

  • Old employer can be liable for failing to consult

  • Old employer must disclose information to new employer

  • New employer has (limited) ability to change contracts of employment

  • Insolvency


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Work and Families Act

  • Maternity and adoption pay

  • Keeping in touch

  • Early return to work notice

  • Flexible working for carers

  • Paternity pay

  • Minimum annual leave entitlements


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Practical implications

  • Pay administration

  • Increased warning of return to work

  • Reasonable contact – KIT days

  • Sharing maternity/adoption leave

  • Impact of increase flexible working for carers


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Recent Cases


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Case law developments

  • Disability absence and sick pay schemes

  • Sickness vs disability

  • Vicarious liability for harassment

  • Whistleblowing – detriment after termination

  • Discrimination by association

  • ‘On racial grounds’


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Case law developments

  • Length of service and pay

  • Employers vicarious liability for discrimination

  • Public holidays for part time workers

  • Using the right procedures


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In the pipeline


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Future legislation

  • Commission for Equality and Human Rights – Oct 07

  • Data protection fully implemented – Oct 07

  • Smoking bans – 2007/08


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Smoking

  • Smoke free premises

  • Signage requirements

  • Vehicles

  • Penalties


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Age Discrimination

January 2006


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Age discrimination

  • Outline of the Regulations

  • Specific issues

    • Recruitment

    • Service related benefits

    • Retirement

    • Other areas of impact


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General observations

  • Applies to all applicants/workers

  • Irish experience: 22% of claims about age

  • Many existing policies/practices are ageist

  • Uncapped compensation


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Some statistics…

  • 40% increase in age claims in the US

  • High numbers already facing age discrimination

  • Big cultural change required


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Main principles

  • Direct – different treatment actual/perceived age

  • Indirect – policy/practice/criterion disadvantages

  • Harassment

  • Victimisation

  • Positive discrimination

  • Selection must be age neutral


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Main Principles - Justification

  • Direct and indirect

  • Proportionate and legitimate

  • Evidence not assertion


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Other exemptions to AD

  • Genuine occupational requirements (very limited)

  • Pay based on national minimum wage

  • Complying with a statutory authority e.g. health & safety, under 18s doing bar work

  • Occupational pension schemes

  • Life Assurance

  • Some pay and other service-related benefits

  • Contractual redundancy payments


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What else…

  • Employers liable for acts of employees

  • No age limits for unfair dismissal and redundancy

  • Default retirement at 65

  • Right to request to work longer


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Enforcement & Remedy

  • In the Employment Tribunal

  • Brought within 3 months of the discriminatory act

  • Provided compliance with the Statutory Grievance Procedure

  • Compensation = Uncapped


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Recruitment issues


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Employment strategy

  • Get the right person to do the right job

  • Ensure you have an age diverse workforce


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Job adverts

  • Wording of adverts

  • Experience, qualifications, qualities

  • Where are you advertising?


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Job applications

  • Application Form

  • Job Description

  • Interview

  • Selection panel

  • Recruitment agencies


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Selection process

  • Stereotypical assumptions

  • References

  • Monitoring – applicants

  • Monitoring – workforce

  • Records


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What the new legislationdoesn’t mean

  • you have to recruit over the age of 65

  • you have to recruit the wrong person

  • there are no circumstances for exclusion based on age


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Pay & Benefits


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Service Related Pay & Benefits

Examples of benefits commonly related to service

  • Incremental pay scales

  • Enhanced holiday entitlement

  • Extended notice periods

  • Eligibility for private medical insurance

  • Enhanced redundancy/sick pay scheme


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Service Related Pay & Benefits

  • Up to 5 years’ service OK, providing

  • applies to all staff doing “work of like nature”

    and

  • length of service is sole criterion

  • 5 years + OK with justification

  • Backed up by evidence


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Retirement issues


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Retirement issues: overview

  • 65 default age, until 2011 review…

  • blanket dismissal at 65, with no reason given

  • NRA’s of less than 65, almost impossible to justify

  • Less than 65 NRA – risky

  • above 65, do not have to justify where fixed

  • No NRA: no “retirement” dismissal protection


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Retirement issues cont’d…

  • No upper age limit for unfair dismissal

  • Set timetable and process to achieve

  • Includes right to request working after retirement


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“Planned retirement” (PR) process

  • Employer triggers

  • Notice must expire on “planned retirement date”

  • Inform employee of right to request continued working

  • Employee request 6 months – 3 months prior

  • Like flexible working process

  • No requirement to give reasons for refusal


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Transitional provisions

  • For retirement until 31 March 2007

  • Must advise employee of right to request to continue working

  • Normal notice

  • Request – up to 4 weeks after termination

  • Meeting within reasonable time


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Points on process

  • Consequence of breach (including insufficient notice of retirement):

    • Automatic unfair dismissal

    • Compensation up to 8 weeks’ (capped) pay

    • Possible age discrimination claim


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Change working pattern post-65?

  • No statutory right to request (unlike flexible working)

  • For employee to initiate

  • Tie in with flexible working arrangements


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Other areas of impact

  • Promotion – open and objective

  • Training and development – equal access and engagement

  • Redundancy procedures


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Suggested action list

  • Audit age profile (including recent applicants)

  • Agree action plan and timetable

  • Announce with top level backing

  • Do impact assessment on all policies/practices

  • Train/educate all staff

  • Employment terms/benefits requiring renegotiation


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Case Studies

December 2006


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Case study 1 – long term absence

  • Jane has been employed as a sales representative in Shire for three years. In January of last year she started to suffer from stress and has been off work ever since.

  • She recently submitted a doctors note for an additional three months which cited work related stress.

  • Bob, the sales team manager does not think the condition is genuine and is keen to replace Jane.

  • Bob calls you later that afternoon to confirm that he is due to meet with Jane this afternoon and intends to dismiss her on grounds of capability.


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Case study 1 – long term absence

  • What are the associated risks if Bob decides to dismiss Jane?

  • What could Bob have done to minimise the risk of a dismissal?

  • What alternatives are there to dismissal?

  • How would you advise Bob toproceed?


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Case study 2 – disciplinary

  • Sam is the manager of a sales team in Bigwood and has been employed in that role for five years.

  • Sam has a chequered disciplinary history and has a number of both verbal and written warnings on his record.

  • Following a recent incident Sam was suspended pending the outcome of an investigation. After the suspension Sam wrote to the company claiming that his conduct was the result of bullying.

  • Having concluded the investigation the company decided to proceed to a disciplinary hearing which they have asked you to chair.


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Case study 2 - disciplinary

  • What if any difference will the previous disciplinary warnings have in relation to the proposed disciplinary hearing sanction?

  • Will the fact that Sam has previously complained of bullying impact on the process?

  • How would you advise the company to proceed?

  • What are the potential risks to the company?


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Case study 3 - probationary

  • Dave started as an sales representative in the City two months ago. During this time his performance has been assessed as average/poor, albeit that Helen, the sales team manger, has not communicated this to Dave.

  • Helen is also disappointed at Dave’s continual moaning about other members of staff and about the layout of the area office following a recent incident in which he tripped.

  • Helen is keen to dismiss Dave and cite the fact that he has not reached the standards required during his probationary period.


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Case study 3 - probationary

  • What is the relevance/purpose of the probationary period?

  • Is Helen safe from an Employment Tribunal Claim if she dismisses Dave?

  • Does the fact that Dave has made complaints have any relevance?

  • What other considerations might be relevant?

  • What could the company have done better?


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Case study 4 - fraud

  • Judas is a sales team manager in the Moneytree area with over ten years service.

  • Following an internal investigation Ben, Judas’s line manager, uncovered a number of discrepancies in Judas’ sales figures and area receipts and carried out an internal investigation. Ben also reported the matter to the police.

  • Ben later dismissed Judas for gross misconduct.


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Case study 4 - fraud

  • What should Ben have done when he suspected a possible Fraud?

  • Did Ben follow the right procedure?

  • Prior to the disciplinary the Police told Ben not to disclose certain documents to Judas, what if any impact will this have on the disciplinary process?

  • What other sanctions are available to the company?


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Case study 5 – unauthorised absence

  • Sue is a sales representative in Skive. In her three years with the company Sue had received a number of verbal warnings in relation failing to follow absence reporting procedures.

  • Having failed to turn up to work for 2 weeks the company write to Sue confirming that she has been dismissed.

  • Sue appeals the dismissal and provides a post dated sick note citing work related stress. You are asked to conduct the appeal.


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Case study 5 – unauthorised absence

  • What should the company have done when Sue failed to turn up to work?

  • What else will you want to know prior to conducting the appeal?

  • What options are available to you at the appeal?

  • What potential risks are there in upholding the dismissal?


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Case study 6 - disciplinary

  • Adrian the area manager in Risk has asked you to chair an appeal in relation to an employee they dismissed for capability.

  • On receipt of the papers it soon becomes clear that the company have not followed any of the correct procedures.

  • In addition it appears that Greg (the employee) had often complained that his line manager did not support him or investigate his requests for further training.


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Case study 6 - disciplinary

  • Upon further review you note that Greg is 64 and suffering from arthritis, what if any impact might this have?

  • In his appeal Greg states that he often asked to be excused from manual work, but that he was told this formed part of his duties. Does this impact on your decision?

  • What options are available to you at the appeal?

  • What do you see as the perceived risks?


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