Legal Q & A

Q
An employee has asked whether she would be able to work from home. We do not
allow any other employee to work from home. Would she be able to make any claim
if we refused her request?

A
Homeworking was the subject of the recently reported case of Lockwood v Crawley
Warren Group, which came before the Employment Appeal Tribunal last year. Due
to family health problems the employee’s childcare arrangements could no longer
continue. She offered to work from home and to buy the necessary equipment. Her
proposal was not accepted so she resigned and claimed indirect sex
discrimination. It is well known that an employer would have to justify its
reasons for refusing a request to work part time.

The
tribunal found that a request to work from home at one’s own expense was
“conceptually similar to a request for part-time work” and sent the case back for
reconsideration. You need to carefully consider the request for homeworking
before making a decision as failing to justify a refusal may result in a claim
for indirect sex discrimination.

Q
The staff toilets are being continually vandalised. Can we use CCTV in the
toilets to identify the vandal?

A
The Information Commissioner has issued a code of practice on the use of CCTV
generally. In addition, the data protection draft code of practice on the use
of personal data in the employer/employee relationship also gives guidance
about using CCTV in the workplace.

In
relation to covert monitoring it provides that this should be done only if the
employer has identified a criminal activity, and it is the only way to obtain
evidence. Even in these circumstances the cameras should not be installed in
places where the employee would have a reasonable expectation of privacy, such
as the toilets.

Q
An employee has told us she has the right to extend her maternity leave by four
weeks. Is this correct?

A
Before the implementation of the Maternity and Parental Leave Regulations 1999
an employee on extended maternity leave could postpone his or her return by up
to four weeks if sick. This was abolished when the new regulations came into
effect. The maternity leave period can now only be extended if the employee
requests parental leave at the end of the period. The request may be refused if
you can show that the leave would cause considerable business disruption.

Q
An employee has recently given us notice of resignation. A discretionary bonus
payment is due during the notice period. Do we have to pay him this bonus?

A
Despite the bonus being described as discretionary it does not give the right
to withhold payment at whim. Last year in Clark v Nomura International the High
Court held that the exercise of a discretionary power in a manner that was
“perverse and irrational” was unlawful. Therefore you should state in the
contract what factors affect the calculation of bonus. If there is no provision
excluding employees in the notice period there will be a risk of a breach of
contract claim.

Questions
and answers by Sue Nickson partner and national head of employment law at
Hammond Suddards Edge

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