HR FAQs
July 2008
Employers and their Human Resources advisers face constant difficulties
in trying to avoid the potential pitfalls posed by current employment
law. This bulletin aims to address, in a practical way, some issues
commonly dealt with by Human Resources departments and to give
realistic guidance on how to reduce the risk of employment related
litigation in these areas.
LEGISLATION UPDATE
Equality Bill
The Equality Bill was published by the Government in June 2008. Its main
aim is to consolidate existing discrimination laws into one standard form.
However, it also sets out various new initiatives, including proposals to
introduce the following:
- Allowing under-representation of minority groups to be taken into
account if two equally-qualified candidates apply for the same job.
This extends the current scope of permitted positive discrimination; and
- Granting additional powers for Employment Tribunals to tackle issues
of discrimination, such as being able to make general recommendations
which affect the entire of the employer’s workforce e.g. the
implementation of an equal opportunities policy.
Right to request time off for training
A consultation period has been launched regarding a new right to request
time off work for training. The consultation will close in September 2008
and it is anticipated that the new right will be introduced in 2010.
It is expected to be very similar to the right to request flexible working
which is currently in place.
FAQs
Pay
Q: In the month before an
employee was due to commence
her maternity leave, she was
signed off work by her doctor for
3 months. She qualifies for
contractual sick pay of full salary
for up to six months. Should we
pay her sick pay or maternity pay?
This issue was the subject
of Department of Work and Pensions
v Sutcliffe (2007). Mrs Sutcliffe
claimed that she was entitled
to contractual sick pay whereas the
DWP argued that the sick pay was
not payable once she started
ordinary maternity leave.
The Employment Appeals Tribunal
agreed with the DWP.
To summarise the payment rules,
prior to maternity leave
commencing, an employee is
entitled to contractual sick payin the usual way. However, as soon as her maternity
leave period begins, statutory maternity pay replaces
any sick pay. Following the maternity leave, if the
employee is still off sick, she will resume her
entitlement to contractual sick pay.
Remember that ordinary maternity leave is deemed
to begin automatically on the day after the first day
of absence if an employee is off work for a pregnancyrelated
reason following the beginning of the 4th
week before her expected week of childbirth
but before the date she has notified her employer
that she wishes her maternity leave to begin.
Therefore, if an employee is off work because
of a pregnancy-related illness, maternity leave may
be automatically triggered meaning that she will
become entitled to maternity pay only.
Discrimination
Q: We operate flexible benefits packages whereby
employees are given an allowance based on a set
proportion of their salary and have the choice
to opt into various different schemes, including
medical insurance. The premiums of this insurance
scheme vary; being more expensive, the older the
employee. Is this discriminatory?
On the face of it, the package appears discriminatory
on the grounds of age because older employees have
to use more of their allowance in order to become
a member of the medical insurance scheme.
However, assuming that you offer the same flexible
benefits package to all of your employees and the
amount of their allowance is calculated according to
an age-neutral formula, there is a strong argument
that the arrangement is not, in fact, discriminatory.
Even if the medical insurance component was found
to be discriminatory on the grounds of age, it may
be possible justify its inclusion. To do this, you would
need to show it was a proportionate means
of achieving a legitimate aim. The legitimate aim
is likely to be enhancing the recruitment and
retention of employees. To demonstrate
proportionality, you would need to show that there
was some thought as to the best way to achieve
the legitimate aim in a non-discriminatory manner,
for example, a consultation process being undertaken
with employees before the scheme was implemented,
professional advice being relied upon to identify
a suitable package of benefits or a survey
of employees to verify that such a scheme does
indeed meet the legitimate aim.
Therefore, when introducing flexible benefit packages
of this kind (and periodically thereafter),
it is advisable to consider whether, should the scheme
be challenged, you have sufficient evidence to prove
that any discriminatory effects are justifiable. If not,
you need to collate such evidence or alternatively
review, and possibly replace, the scheme.
Confidential Information
Q: Our employees are given access to highly
sensitive confidential information. How can we
best protect this?
During employment, confidential information will
usually be protected by duties implied into the
employment contract, such as the employee’s duty
of fidelity and good faith and the duty of trust
and confidence. However, it is always best to have
an express contractual obligation in place so that
employees are clear about their obligations
and particularly sensitive types of information can
be highlighted.
After termination of employment, the situation
is more complicated. Only exceptionally sensitive
confidential information, such as trade secrets
and information akin to trade secrets, will be
protected (unless an express confidentiality covenant
is in place). This type of information includes,
for example, secret formulae/recipes and highly
secret marketing plans. There is often uncertainty
about exactly what information does and does not fall
within this category so it is risky to merely rely on this
principle to protect your confidential information.
The best way forward to ensure that there is sufficient
protection in place to safeguard against unauthorised
use or disclosure of any of your sensitive confidential
information is to include an express confidentiality
clause in the contract of employment. Such a clause
should be drafted carefully and, if there are particular
types of information that you are concerned about,these should be specified. If the information ceases
to be confidential after a certain period of time,
the confidentiality clause should be expressed
as being time limited. However, do bear in mind that
information that has become part of the skill
and knowledge of an employee and information that
is trivial or already in the public domain is not capable
of being protected.
On a practical level, there are also various things that
you can do. Firstly, you should stress the confidential
nature of the information to your employees as much
as possible (although merely labelling information
as “confidential” does not always make it so).
Secondly, consider whether access should be
restricted to only certain employees, for example,
to senior managers. Thirdly, consider if physical
security measures are possible and appropriate, such
as passwords, codes or locks.
If the information is extremely confidential, you may
also want to consider whether other forms
of protection should be put into place, such as
post-termination restrictive covenants. In the case
of Thomas v Farr (2007), a 12 month non-competition
clause was upheld against a former employee as it was
thought necessary to protect the employer’s
confidential information.
Family Rights
Q: We have an employee who wishes to take time
off to care for her child as her usual childcare
arrangements have fallen through. She has
requested six weeks leave, starting immediately. Do we have to allow this?
Employees have the right to take a reasonable amount
of unpaid time off work in order to deal with
unexpected emergencies involving their dependants. “Dependants” includes a spouse, civil partner, child,
parent and person living in the employee’s household
(except tenants and employees).
In some circumstances, it can also include a person
who reasonably relies on the employee for assistance.
Time off can be taken for the following:
- To provide assistance if a dependant falls ill, lives
birth, is injured or assaulted;
- To make longer term care arrangements for the
provision of care;
- In consequence of the death of a dependant;
- To deal with the unexpected disruption,
termination or breakdown of the arrangements
for the care of a dependant; and
- To deal with an unexpected incident involving
the employee’s child during school hours.
Your employee is therefore covered by the statutory
right to take time off. However, only reasonable time
off must be given. What is reasonable will depend on
the specific circumstances and the methods available
to the employee to remedy the emergency.
There is no prescribed maximum amount of time off
but a recent case has confirmed that a period
of one month or longer would “rarely, almost never,” fall within this statutory right. Usually, only a couple
of days off would be considered appropriate.
In your case, you are very likely to have grounds
to refuse the employee’s request as six weeks off
is an extremely long period of time. However,
you would need to consider her specific circumstances
and her ability to make alternative care arrangements
before making a decision. You may also want
to explore other ways to accommodate her, such
as allowing her to take annual leave or informing her
of her right to make a request to take unpaid parental
leave if she is eligible (although usually the employee
must give at least 21 days notice to take such leave).
Employment Practice
Q: There has been an allegation that one of our
employees made some racist remarks. What steps
should we be taking in order to carry out a fair
investigation?
It should be remembered that the investigation
of an allegation of misconduct is separate from
the disciplinary hearing. It is a fact-finding exercise.
The amount of investigation required will depend
on the circumstances but must be such that the
allegations and evidence against the employee can be
clearly explained.
The first stage would be to interview the person whobrought this incident to your attention, followed by any
witnesses. The investigation should
take place as soon as possible while
the events are still fresh in the
minds of those involved. Ideally,
a statement from each of the
witnesses should be taken and
a detailed note of any information
gathered via follow-up questions
should be kept. All persons involved
in the investigation should be
reminded of the need to keep
matters confidential.
It should also be remembered that
the investigation must be balanced
- you should not just be focusing
on evidence pointing towards
the employee’s guilt. You will
therefore need to interview
the employee concerned to get their
version of events. It may be,
for example, that the remarks were
misheard or misinterpreted.
The employee does not have the
right to be accompanied at an
investigatory meeting (unlike at the
disciplinary hearing).
As to who is the appropriate person
to conduct the investigation,
this should be someone who
is impartial and not a witness
to the events. Usually, this would
be the employee’s line manager
or a member of the human resources
team. If you have a contractual
policy in place, the person who
should undertake the investigation
may be specified. Given this
particular scenario, ideally, the
investigating officer should be
someone who has received training
in discrimination issues.
The investigation must be
comprehensive but should go
no further than is necessary
to establish the facts. The employee
under suspicion must be treated
fairly, otherwise this could lead
to a breach of the implied duty
of trust and confidence that exists
between employer and employee.
Once the investigation has been
completed, assuming that there
is sufficient evidence to support the
allegations made against
the employee, you can proceed
to the disciplinary stage. Remember
that the requirements of the
statutory disciplinary and dismissal
procedure must be incorporated into
any disciplinary process, meaning
that the first step is to send
the employee written notice
explaining the circumstances which
have led you to consider disciplinary
action and the basis of those
allegations.
If you would like any further information about the issues raised in this newsletter, or any other aspect of employment law, please contact , Partner, or any other member of Goodman Derrick LLP's .
Further information and guidance about how to follow a fair and
reasonable redundancy process with a minimal risk of claims is covered
in our Redundancy Seminar which, due to demand, we are going to rerun
in February 2009.
This guide is for general
information and interest
only and should not be
relied upon as providing
specific legal advice. |
