November 27 2006 Employment Law Enews

Welcome to the latest employment law e-newsletter.

Unfair disciplinary procedure

The statutory dismissal and disciplinary procedure provides a basic standard procedure that employers must follow to avoid a finding of automatic unfair dismissal. An employer's own internal procedures will generally be more detailed and complicated, but employers should still ensure they act in compliance with the statutory procedure.

In the case of Masterfoods v Wilson, the employee was called to a disciplinary hearing on the grounds that he had allegedly obtained company sick pay fraudulently. Mr Wilson was eventually dismissed. Under the company's disciplinary procedure employees who wished to appeal were required to set out the grounds of their appeal in writing within five days of being notified of the disciplinary decision. Mr Wilson informed the company in writing that he wanted to appeal and was taking legal advice about the grounds of his appeal. He was permitted some extra time to take legal advice, but it was not until approximately four weeks later that the company received a letter from Mr Wilson's solicitor setting out the grounds of his appeal. The company responded to say that his appeal would not be heard due to the delay in presenting the grounds of appeal.

An employment tribunal decided the dismissal was unfair under general unfair dismissal principles and also automatically unfair for breach of the statutory dismissal and disciplinary procedure. On appeal to the EAT, the tribunal's decision was upheld. In relation to the automatic unfair dismissal, the company's requirement that the grounds of appeal be set out in writing is not a requirement of the statutory procedure. It is only necessary for the employee to inform their employer of their wish to appeal. Since Mr Wilson had done so but was denied an appeal, the EAT agreed that his dismissal fell foul of the statutory procedure and was therefore automatically unfair.

Whilst many employers will have additional requirements in their own procedures, relating to the timescale and procedure for appealing a disciplinary decision, it is important to remember that an employee who does not follow these requirements should not necessarily be denied the right to bring an appeal. It remains to be determined by the tribunals how long an employee can reasonably delay before the employer is justified in refusing a request to appeal.

Are workers on long term sick leave entitled to holiday pay?

The case of HM Revenue and Customs v Stringer (formerly known as Inland Revenue v Ainsworth [2005] EWCA Civ 441), has been referred to the ECJ by the House of Lords. This case is concerned with whether workers can still accrue paid holiday under the Working Time Regulations 1998 when they are on long term sick leave. Under the Working Time Regulations employees are entitled to four weeks' annual leave in each year.

The claimants in this case were a group of employees who had been off work due to long-term sickness. They had all been paid for a certain period of time but had exhausted their entitlement to contractual and statutory sick pay. The employees then brought claims seeking to establish that their entitlement to paid holiday under the Working Time Regulations endured even while they were not attending work and were no longer entitled to sick pay. They successfully argued before both an employment tribunal and the EAT that they were entitled to paid annual leave under the Working Time Regulations.

However, on appeal by the employer the Court of Appeal held that workers on long-term sickness absence who have exhausted their sick pay entitlement cannot take 'holiday' while on sick leave. Therefore, at present, employers do not have to pay in respect of an employee's statutory holiday entitlement in circumstances where the employee has not worked for any part of the leave year.

It will now fall to the ECJ to decide the matter. Employers should be aware that if the Court of Appeal's decision is overturned, the financial implications of paying employees who have been absent due to long term sickness could be substantial. However, a decision from the ECJ is unlikely before late 2007.

New absence management tool

The Chartered Institute of Personnel and Development (CIPD) has developed a new online absence management tool in conjunction with ACAS and the Health and Safety Executive. It is designed to give a good overview of some of the key issues that need to be considered in order to manage absences effectively, with links to a range of useful resources.

The free toolkit provides best-practice guidance on managing short and long term absence and includes information on policies, return-to-work interviews, liaising with GPs, and making reasonable adjustments under the Disability Discrimination Act. It also provides in-depth advice on developing an absence strategy and how to measure and benchmark absence levels.

It is aimed at line managers in small and medium-sized enterprises but will also be of interest to those in larger organisations.

The four sections of the tool comprise:

• Do you have an absence problem?
• How do you develop an absence strategy?
• How do you deal with a short term absence?
• How do you deal with a long term absence?

See the HSE website for further information.

Immigration
Outline of Principal Changes to the Highly Skilled Migrant Programme (HSMP)

As reported in the last E-News on 7 November the Immigration Minister, Liam Byrne announced a new regime for highly skilled workers, which includes a mandatory English language requirement, new application forms and a freeze of all current applications under the scheme until 5 December 2006.

The changes represent a significant departure from the previous scheme and affect both those applying for highly skilled migrant status for the first time and also those seeking to apply for further leave to remain as highly skilled migrants.

One of the other key changes to the scheme is the addition of the mandatory English language requirement and the only way the applicant can satisfy that requirement is either by having successfully completed the IELTS test at band 6 or above or by having a UK Bachelors Degree or the equivalent of the UK Bachelors Degree taught in English.

If the applicant cannot satisfy either of those criteria their application will be refused notwithstanding that they may comply with the remaining criteria and have achieved the relevant number of points, which is increased under the new scheme from 65 to 75 being the new qualifying level.

The other glaring omission under the new rules appears to be a complete lack of credit for graduate level work experience obtained outside the UK and therefore an applicant who does not have a degree but has say 12 years graduate level work experience at a senior level outside of the UK may find that they are unable to qualify under the new rules.

The qualifying level has been increased from 65 to 75 points, and the previous areas of work experience, significant achievements and skilled partner no longer appear under the new rules and therefore no points can be claimed under these areas.

It may well be the case that some of those who qualified for HSMP status under the old rules may not in fact qualify under the new rules which will then of course have serious implications for them in terms of their immigration releases issued by Work Permits UK regarding these changes, to a grace status and their ability to remain in the UK. There are references in the news period for such individuals to allow them to change their status to Work Permit holders.

For further information regarding the changes to the Highly Skilled Migrant Program or regarding any Immigration or nationality matter please contact our specialist immigration lawyer Mark Barnett at immigration@steeleslaw.co.uk or on 0207 421 1720.

This article copyright © 2006 Steeles Law llp. All rights reserved.