Welcome to the latest edition of steeles Employment Enews
Changes to the Contents of the Step 1 Letter
Steeles Law Employment Solicitor Tina Maxey discusses the latest EAT guidance on the much-criticised Statutory Dispute Resolution Procedures.
Whilst the procedures will be abolished on 6 April 2009, they will continue to apply up until that time and in some circumstances beyond that date. Under the transitional provisions, the statutory disciplinary procedures will still apply for dismissal procedures arising before the 6 April, but not yet concluded.
In the case of Zimmer Ltd v Brezan the EAT held that Mr Brezan's dismissal was automatically unfair as the step 1 letter (invitation to disciplinary meeting) did not specifically say that the meeting might result in dismissal, nor did it say that Mr Brezan's behaviour might be considered gross misconduct.
In this case Zimmer Limited investigated Mr Brezan's mileage and expenses claims after he raised concerns about losing his mileage payments if he was promoted to an office based role. The Company found his expenses claim unusually high and invited him to a meeting to discuss his mileage and expenses claims.
The EAT recognised that the words of the statutory dismissal procedure do not expressly require the Employer to state in writing that it is contemplating dismissal. However, the tribunal held that it is important that the Employee understands that he is at risk of dismissal and why.
Comment
Although the ruling outlines what is required under the statutory dismissal procedures, which will be abolished on 6 April 2009, it is prudent for an Employer to inform the Employee in advance of disciplinary hearing whether the alleged conduct is gross misconduct and therefore whether the possible outcome could be dismissal.
If you require advice on the issues raised in this article or on employment law in general please contact
or another member of the employment team on noremp@steeleslaw.co.uk or 01603 598000.
Unfair Dismissal Compensation during an Employee's Notice Period when Constructively Dismissed
Steeles Law Employment Solicitor Tina Maxey discusses the calculation of compensation during an employee's notice period when they have been constructively dismissed.
Where an employee has been unfairly dismissed, the Tribunal will make a basic award and a compensatory award. Since Norton Tool v Tewson (1972) the Tribunal held that it is good practice for an employee to receive a compensatory award which includes a payment in lieu of notice when they have been summarily and unfairly dismissed without making a reduction for any earnings received from a new job throughout this notice period ('the Norton Tool principle').
In the case of Stuart Peters Limited v Bell the Employment Appeal Tribunal (EAT) considered whether this principle should be extended to circumstances where an employee has been constructively dismissed. The EAT held that the principle could apply to cases of constructive dismissal. However, the question of whether the Norton Tool principle was good law was not argued in this case and therefore the Norton Tool principle survives until it is challenged and comes before the House of Lords.
Comment
This decision confirms that an employee who is unfairly or constructively dismissed does not need to give credit for any earnings during their notice period. The EAT noted that this may result in a windfall.
If you require advice on the issues raised in this article or on employment law in general please contact or another member of the employment team on noremp@steeleslaw.co.uk or 01603 598000.
The EAT Confirms the Malcolm Comparator Test Applies to Employment Cases
In the recently decided case of Child Support Agency (Dudley) v Truman the EAT were faced with the decision as to which comparator should be used in an employment case regarding disability related discrimination.
Steeles Law Employment Solicitor discusses.
Facts
Mrs Truman suffered from a back condition, which worsened, and she was permitted to work from home for four and a half days a week. She was to be provided with specialist equipment by her employer to assist her with this.
The equipment did not arrive as scheduled and Mrs Truman, whilst chasing for delivery, raised her voice in displeasure directed at one of the employee's organising this delivery. No disciplinary action resulted.
In January 2007 Mrs Truman's employer decided to stop home working and encouraged Mrs Truman to apply for early retirement.
Mrs Truman claimed her employer discriminated against her:
- For reasons related to her disability, arising from the dispute with the employee and the pressure her employer put her under to apply for ill health retirement and
- By their failure to make reasonable adjustments in providing the equipment she required in a timely manner together with ending home working.
As you may recall from last year the House of Lords concluded in London Borough of Lewisham v Malcolm a case concerning disability related discrimination in the context of housing law that a much narrower test as to the comparator should be drawn than the previous and long standing test set out in Clark v TDG Ltd t/a Novacold.
The test under Clark was that a comparator need not be in the same or similar circumstances as a disabled Claimant. For example a disabled employee who is dismissed for sickness absence would have compared themselves with an employee who had not been absent and was not dismissed rather than with an employee who was absent and dismissed, but who was not disabled.
It was relatively easy to make out a claim on this basis.
The House of Lords turned this established principle on its head under Malcolm which now provides that the Claimant must compare themselves with a non disabled person who is otherwise in the same circumstances. Referring back to the example above a disabled employee who is absent from work due to illness and is dismissed must now compare themselves with an employee who is also absent from work due to illness but is not disabled.
Disability Discrimination will now be a much more difficult claim for the Claimant to establish.
The EAT's decision
The EAT concluded the narrower comparator test set out in Malcolm should apply in employment cases.
The provisions in the housing and disability related discrimination provisions are identical; it is unlikely there should be separate comparators as a result.
The wording of the defence of justification open to employers in disability related discrimination cannot be distinguished between the provisions relating to housing and employment.
All members of the House of Lords in Malcolm felt that the approach to comparators should be the same in both the housing and employment provisions.
If there was to be a wider comparator test in employment and a narrower one in housing this was for Parliament to decide rather than the courts.
Comment
The Malcolm case (and its subsequent application in an employment context in Truman) clearly tips the balance in the employees' favour. However, this is unlikely to remain the situation for long. The Government has acknowledged it is now very difficult for employees to establish a claim of disability related discrimination and so in November 2008 the Government published a consultation paper in response to Malcolm with the intention to address the issue of comparators head on. Its current view is that in the forthcoming Equality Bill, discrimination related to disability will be replaced with the offence of indirect discrimination, as is found in other forms of discrimination.
The Government's view is that indirect discrimination, having developed over a number of years, and based on statistics, will produce a more satisfactory outcome for Claimants.
We will keep you informed as this progresses.
If you require advice on the issues raised in this article or on employment law in general please contact or another member of the employment team on noremp@steeleslaw.co.uk or 01603 598000.
European Commission Rejects Proposal to End the Current Opt-out from the 48 Hour Week
The European Commission has rejected the European Parliament's proposal to scrap the opt-out from the maximum average 48 hour week currently contained in the Working Time Directive.
The European Commission's opinion is important as it is intended to help the European Parliament and Council reach an agreement on the final text.
Whilst the Commission envisages that the opt-out should be phased out, it has accepted that current conditions do not allow this at present. However, the Commission's opinion allows for a greater restriction on the use of the opt-out than is currently the case. The opt-out would have to be used with appropriate safeguards and after other forms of flexibility have been examined. Workers would be unable to agree to opt-out during their probationary period.
It is clear that there is disagreement on the fate of the opt-out provisions and we will keep you up to date as to future developments.
If you require advice on the issues raised in this article or on employment law in general please contact or another member of the employment team on noremp@steeleslaw.co.uk or 01603 598000.
These articles copyright © 2009 Steeles Law llp.
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