Legal Q & A

Q One of our employees has to take her son to a hospital
appointment. I told her to use her holiday entitlement. She insisted that she
has a right to take unpaid leave. Is this true?

 

A No, not yet. She is currently entitled to unpaid leave if
her son (or any other dependant) were rushed to hospital in an emergency, but
not for a routine appointment. However, the Government is considering extending
this to routine hospital appointments. So your employee may be right in the
future!

 

Q Our staff are entitled to three months’ notice,
although we have a discretion to pay in lieu. A few weeks ago, we dismissed an
employee who had only been with us for six months and paid him three months’
salary in lieu. We have since found out that he started a new job a week later,
leaving him far better off than if he had not been dismissed! Presumably there
was nothing we could do?

 

A It is too late now that you have made the payment, but if
you were still negotiating, you might have been able to avoid a substantial
payment.

The Court of Appeal has recently confirmed that, in these
circumstances, it is possible to pay a departing employee only the difference
between what he would have earned during his notice period and what he will
actually earn over the same period in his new job. So an employee who is lucky
enough to move straight into a new job could be able to claim very little from
you, and perhaps nothing at all if the new job is as good as the old one.

 

Q I work for a small UK company. I was alarmed to be told
that we now have to consult our staff about all major business decisions. Is
this right?

 

A Your obligations are not that extensive at the moment.
There is a draft EC directive which proposes that all employers with 50 or more
staff must inform and consult their employees’ representatives about various
matters. However, this has not yet been adopted, partly due to opposition from
the Government.

In fact, UK employers generally have fewer obligations than
their European counterparts to inform and consult their employees’
representatives. The only areas where they must currently do so are large-scale
redundancies, business transfers and health and safety matters.

 

Q Can our ex-employees obtain legal aid to pay for a
representative in the employment tribunal?

 

A Not at the moment, unless they live in Scotland. The right
to legal aid in Scotland was won by an argument that its absence may amount to
a violation of Article 6(1) of the European Convention of Human Rights, which
affords an individual a right to a fair hearing. The Convention now has the
force of law in England and Wales, so the same argument could succeed here and
force the Government’s hand.

By Nicholas Moore, head of employment at Osborne Clarke OWA

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