Q and A

first_imgThe employment law team at Pinsent Curtis Biddle answer questions onworkplace issuesEqual rights for men Q A man in our accounts department has asked if he can work reducedhours following the birth of his first child. Are we legally obliged to let himwork part time? A At the moment, there is no law which states that employers mustagree to allow employees to work part time. However, it is now well-establishedby case law that a refusal to allow a woman to return part time after the birthof a child may constitute indirect sex discrimination under the SexDiscrimination Act 1975. The basis for such a claim is that a practice orpolicy of requiring full time working generally has a greater adverse impact onwomen by comparison with men – statistics have shown that women have morechildcare responsibilities which makes it difficult or impossible for them todo full-time jobs. A man would not, therefore, be able to bring a claim ofindirect sex discrimination because men do not, generally speaking, belong tothe sex which is disadvantaged by a requirement for full time working. However, in the recent case of Walkingshaw v The John Martin Group, MrWalkingshaw succeeded in his complaint of direct sex discrimination after hisemployer refused to let him work part-time. He had been a full-time mechanic,but after his wife, who also worked full-time, had a baby, the couple decidedthat one of them would work part-time to care for the child. The mother’s jobwas seen to be of more benefit to the household, so it was decided MrWalkingshaw would ask to work part-time. At a meeting with his employer, therequest was refused as it was considered impossible and ‘too complicated’. Hisalternative suggestion of job-sharing was also considered to be ‘too messy’.The meeting lasted no more than 20 minutes, and he was told that the decisionwas final. Mr Walkingshaw resigned and claimed direct sex discrimination on the basisthat the employer allowed female employees to work part-time and that,therefore, he had been treated less favourably than a woman would have been insimilar circumstances. His claim succeeded. It seems, therefore, that employers who allow female employees to return towork part-time are under an obligation to treat requests from male staff in thesame way. The solution is not to refuse requests from women to work part-timeas that could lead to claims of indirect sex discrimination from femaleemployees. The Government has announced its intention to introduce new law which willallow employees to request flexible working without having to rely on argumentsof sex discrimination. Linda Jones Family friendly Bill Q How will the Employment Bill affect the rights of working parents? A The Bill contains a number of significant ‘family friendly’employment rights which will apply regardless of the size or resources of theemployer. These rights are likely to come into force in 2003. First, the Bill sets out to improve the current arrangements for statutorymaternity leave and pay – extending ordinary maternity leave from 18 to 26weeks. This will be followed by a further 26-week period of additional leave ifthe woman in question has completed one year’s continuous service. As a result,most working mothers will have the right to take up to a year of maternityleave (the current maximum is 40 weeks). The payment period for statutorymaternity pay (SMP) and maternity allowance, which are only payable duringordinary leave, will also be increased to 26 weeks. Second, the Bill will give working fathers who satisfy certain conditionsthe right to two weeks paid paternity leave on the birth or adoption of achild. Initially the rate of pay will be the lower of £100 per week or 90 percent of the employee’s average weekly earnings. Such payments will beadministered in the same way as SMP. Third, the Bill will introduce a new right of up to a year’s leave when anemployee adopts a child. Only the first 26 weeks of such leave will be paid,and the arrangements for payment and the level of pay will mirror those forstatutory paternity pay. The Bill has recently been amended to give parents of children under six theright to request more flexible working arrangements (such as a reduction inhours) to enable them to cope with their child-minding responsibilities.Although the employee will not be able to insist on a change in terms theemployer will have to follow a prescribed procedure when considering therequest and will only be able to refuse the request on one of a number ofspecified grounds. These include the burden of additional costs or theinability to reorganise work among existing staff. Helen Milgate Unfair dismissal regime Q What changes will the Employment Bill make to unfair dismissal claimsand what are the implications for employers? A The Employment Bill proposes a radical overhaul of the unfairdismissal regime. The aim is to promote the resolution of employment disputesin the workplace rather than the tribunals, controlling the continual rise intribunal applications. A key proposal is the introduction of statutory dismissal and grievanceprocedures. These would form part of every contract of employment and imposecertain minimum procedural steps. Significantly, the procedure applies to anydismissal, not just a disciplinary dismissal. It is likely that employees will be barred from bringing complaints to atribunal before the statutory procedure, including an appeal stage, has beenexhausted. But it is doubtful that they will lose the right to complain at allor that the new procedures will significantly reduce the number of employmentclaims. In many dismissal cases employees do appeal against their dismissalbefore bringing proceedings. Exhausting a grievance procedure may be lesscommon, but the overall impact of the change may be to delay claims rather thanreduce their number. Nevertheless, the introduction of the statutory procedures will create newrisks. If employers fail to comply with the statutory dismissal or grievanceprocedures the dismissal will be found to be automatically unfair. The failurecould also be a breach of the employment contract, giving rise to anautomatically unfair constructive dismissal claim. The basic steps of the dismissal procedure are not of themselves onerous.More problematic are the general requirements of both procedures, which requirethat each step under the procedure should be taken without unreasonable delay,that the timing and location of meetings be reasonable and that meetings areconducted in a way which allows both employer and employee to explain theircases. There is obvious scope for argument as to whether these have beencomplied with. Applicants may well focus on these issues in any tribunalhearing in the hope of establishing automatic unfair dismissal liability. Failure to follow the statutory procedure – dismissal or grievance – couldalso have a major impact on compensation. If proceedings are begun before thestatutory procedure is completed, the tribunal must increase or decrease anyaward by 10 per cent (depending on whether the failure to comply is due to theemployer or employee’s default) and can at their discretion increase ordecrease the award by 50 per cent. A related reform is the increased role for the statutory statement of themain terms and conditions of employment, which must be given within two monthsof the start of employment under s1 ERA 1996. As a minimum, employers should review their existing dismissal and grievanceprocedures and ensure that managers are aware of the need to follow these withcare. Christopher Mordue Worker involvement Q I am considering creating an informal employee work group to discussissues within the workplace. One of my managers has said that this could soonbe a statutory obligation upon all companies. Is this right? A Following the European Commission’s perceived success of EuropeanWorks Councils in achieving worker involvement in multinational companies, ithas been keen to extend worker information and consultation obligations intocompanies based in one member state. A draft directive on national-level informationand consultation of workers is making its way through the European legislativeprocess. As currently drafted it will oblige ‘undertakings with at least 50employees in any one Member State’ to inform and consult employeerepresentatives on: – the situation, structure and probable development of employment within theundertaking – measures envisaged which could pose a threat to employment – decisions likely to lead to substantial changes in work organisation orcontractual relations Christopher Booth Age discrimination Q Can I decide not to employ someone simply because they’re too old, inmy view, to integrate with my young workforce? If I do this, could the personbring any claims against me or my company? A It is unlawful in the UK to treat anyone less favourably on thegrounds of their sex, race or disability. An employee or worker who considersthey have been discriminated against on these grounds can bring a claim at anemployment tribunal and, if successful, be awarded compensation. It is not, currently, unlawful to discriminate against a person purely onthe grounds of their age. However, at present more men than women work beyondthe age of 60 and accordingly age should not be used as a factor duringredundancy selection procedures, as to do so could lead to sex discriminationclaims. The Government has issued a Code of Practice entitled Age Diversity inEmployment. However, this is only advisory in nature and has no legal force,although Employment tribunals are able to draw unfavourable inferences if itsprovisions are not observed. The Government has also launched the Age Positivewebsite in anticipation of age discrimination legislation in the future (www.agepositive.gov.uk). The Government reports that 90 per cent of people believe employersdiscriminate on the grounds of age, and the new website has a test foremployers on this basis. It is open to employers at present to recruit younger staff without theprospect of an employment tribunal claim, although this position may change,and as the working population ages, age discrimination may become less of anissue. Alison Elmore Keeping track of pension benefitsQ My employer has just outsourced the IT function in which Iwork. I know that my new employer will honour TUPE, but moving means I have tocome out of my present employer’s generous pension scheme. When I raisedconcerns, my present employer assured me that the rights and benefits under thenew employer’s scheme would be about the same. I have just received a letterfrom my new employer and it says I will be entitled to join a scheme, but itwill be a money purchase scheme as opposed to final salary, which will be muchless beneficial to me. Can I do anything?A In the High Court recently,in Hagen v ICI, the court established that in exceptional circumstances anemployer might be liable for misrepresentation if he makes promises about whata transferee will offer by way of terms and conditions, including pensionrights, provided that the promise is relied upon and causes loss. However, theICI case is unusual.  It was foundspecifically in that case that the employer had misrepresented pension rights(but not other terms) with the new employer and a financial claim on thatground succeeded. But, unusually, given the special relationship between ICIand its workforce and the unions, it was found that the workforce would havebeen able to influence the employer to negotiate better terms with thetransferee had the true position been known. Rarely will this be the case. Thebest advice is to get an assurance in writing from the employer beforetransferring and ensure that the advice given to you is as specific aspossible. But few employers will be as specific as ICI about prospects for thefuture.Dr John McMullenNational Head of Employment Law Q and AOn 1 Mar 2002 in Personnel Today Previous Article Next Article Related posts:No related photos. Comments are closed. last_img

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