February 2012 Employment Law Update
February 2012 Employment Law Update
If you would like to discuss any employment issues please contact Julie Taylor on 01635 508181
1. Redundancy: one is the loneliest number and can be unfair too!
The Employment Appeals Tribunal has upheld the decision that a dismissal for redundancy was unfair where the selection pool consisted of just one employee.
In this case, the employee was one of four doing a similar type of work, but for separate clients. Her particular client based had reduced, whereas the other three’s had remained the same, so the employer only included her in the selection pool and then made her redundant. Her unfair dismissal claim was upheld.
Previously, employers have been free to choose the appropriate selection pool from which to make redundancies. Technically there is no legal requirement to limit the pool only to those employees doing the same time of work and the tribunal would usually have been satisfied as long as the employer has genuinely applied its mind to consider who should be included in the selection pool.
HOWEVER, this decision shows that employers should be especially careful when the pool identified consists of just one employee as the reduced value of the subsequent consultation process will be taken into account and an successful unfair dismissal claim could follow.
Employers will need to take care when choosing the appropriate selection pool from which to make redundancies and ensure that a full and fair consultation takes place. We would encourage employers to take specific legal advice to minimise the risk of unfair dismissal claims in redundancy situations.
2. Vicarious liability
The Court of Appeal has ruled on two cases which considered whether an employer should be liable for an assault carried out by an employee on a fellow worker in response to lawful instructions.
IN the first, the employer was found vicariously liable where the employee was undertaking a task central to his employment and reacted violently to attack his manager there and then.
In the second, the employer was not vicariously liable where the employee, who was telephoned at home and asked to work an extra shift, cycled to work drunk and attacked his manager.
These decisions demonstrate that an employer will be responsible for the actions of their employees where such actions are carried out in the course of their employment. In other words, there needs to be a sufficiently close connection between the act and the employment.
Action points:
Employers should at least always:
- clearly define their employees’ areas of responsibility and scope of their work; and
- ensure that they have adequate liability insurance cover in place.
3. Employers need to be aware of forthcoming changes:
- Statutory maternity, paternity and adoption pay increases on 1 April 2012 to £135.45 per week.
- Statutory sick pay increases on 6 April 2012 to £85.85 per week.
- Pensions: from 6 April 2012 people in defined contribution pension schemes will no longer be able to contract out of the state additional pension. There are also a number of other changes to pension schemes, the most significant being the requirement for employers to automatically enrol their staff into a workplace pension scheme. We would recommend you take specific advice regarding your obligations.
- Parental leave: The permitted period of parental leave following the birth or adoption of a child is to increase to four months under European law. Previously it was anticipated that this increase would take effect in the United Kingdom from 8 March 2012, however, it seems the Government has decided to delay implementing the change until March 2013.
- Unfair Dismissal: The qualifying period for employees to bring a claim for unfair dismissal is to be extended to two years (this is expected to only apply to those starting with a new employer on or after 6 April 2012 coming into force on that date).
- Income tax: On 6 April 2012 the personal income tax allowance will increase to £8,105 and the threshold at which employees pay the higher income tax rate of 40% reduces to £34,371.
4. Misconduct dismissals: Procedure is STILL vital!
The Court of Appeal has reminded employers of the importance of carrying out a fair procedure and considering all the issues before dismissing staff for misconduct, especially where the employee’s future career is at risk. The case also considered the issues with regard to suspending an employee where there were allegations and reiterated that suspension must not be used as a punishment or issued as a knee-jerk reaction to an allegation.
The decision highlights that any dismissal for misconduct will only be fair if:
(a) the employer has carried out a reasonable investigation into the alleged misconduct;
(b) the employer believes, at the time of dismissal, that the employee is guilty of the misconduct alleged;
(c) there were reasonable grounds for the employer having such a belief; and
(d) dismissal was a reasonable response in all the circumstances.
Dismissing employees can cause a variety of issues and create significant risks of claims and therefore employers should always take specific legal advice before dismissing an employee whatever the reason.
Please note that these comments are intended to summarise some of the employment issues of the moment, not to provide detailed legal advice, so if you need assistance with any employment issues you may have please contact Julie Taylor on: 01635 508181
Follow Julie on Twitter: @JulieT_GL
