Q We have recently moved on to a competency framework, but line managers are still responsible for writing job descriptions/person specs, which we check. They are putting down “three years experience etc” on person specifications and I am worried about how we are going to be able to justify this when the new age legislation comes in. Can you help?
A The requirement should be ‘objectively justified’ which, according to the legislation, should be a “proportionate means of achieving a legitimate aim”. Ask your line managers to explain what the actual job requirements are and why the three-year qualification is necessary. Perhaps the requirement could be redrafted to refer to the fact that the candidate would need to demonstrate certain key skills/aptitudes, rather than be related to service.
Consulting on redundancy
Q We are in the process of consulting with a small number of employees (less than 20) and do not have elected employee or union representatives as it is a non-unionised environment. We have not offered representation at individual consultation meetings – is this a legal right at the point when we serve them notice to terminate their employment by reason of redundancy?
A Dismissing staff by reason of redundancy (where less than 20 employees are being made redundant) falls into the remit of the Statutory Discipline and Dismissal Procedure. That would usually mean that the employee will have the right to be accompanied at the meeting under S10 of the Employment Relations Act 1999.
However, the right only applies to disciplinary meetings and in the case of Heathmill Multimedia ASP Limited v Jones and another 2003 (IRLR 856), the EAT decided that a dismissal for redundancy was not ‘disciplinary’ in nature and therefore there was no right to be accompanied in such a case.
Although this would appear to demonstrate that there may be no legal right, it would be a good gesture from the company to allow an employee to be accompanied to the final meeting.
Leave for antenatal care
Q If you have a pregnant employee suffering from a hip complaint due to the pregnancy who has been told by her midwife that she must attend physiotherapy, is she entitled to take this as paid leave?
A As it currently stands, the law grants pregnant employees the right to reasonable paid time off for antenatal care. This is not paid leave, it is an entitlement to paid time off. However, it does pose two questions – what constitutes antenatal care and what is reasonable time off?
The answer to the first question is reasonably straightforward – it will be considered to be antenatal care if a midwife or doctor deems it beneficial/necessary for a pregnant woman. You are entitled to ask for evidence of this if you are in doubt.
The second question is more tricky. There is no definitive answer, but we use the approach that we would pay for the time to get to the appointment, the duration of it and the time to get back to work. We ask that appointments are made for either early in the day or late in the afternoon (wherever possible) to minimise disruption to the work environment.
This arrangement works well and has always been accepted as reasonable by the employees concerned. We insist employees provide us with an appointment card for second and subsequent appointments
I suggest you pay the individual for the time to attend the appointment. You say the midwife has told her she must attend, so you would be hard-pushed to convince an employment tribunal that this is not antenatal care. Your main issue is what time off would be reasonable – if you follow a similar approach to ours, you should be able to strike a balance between your needs and hers.