Q and A

The employment law team at Boodle Hatfield answer questions on workplace
issues

Flexible working rights

Q I have heard the Government is going to introduce new legislation about
flexible working. Will this mean that employees will have a right to insist on
working part-time?

A In November 2001, the Government announced that it proposed to
introduce the right for parents to request part time or flexible hours. The
proposed legislation is the result of an investigation undertaken by the Work
and Parents Task Force into how to meet parents’ desire for more flexible work
patterns in a way which is compatible with business efficiency. However, the
legislation will only allow parents the right to request part time work. It
will not give them the right to insist on part-time working.

The main points of the proposed legislation are:

1. Only employees with a minimum of six months’ service, who are parents of
children under six or disabled children under 18, will be entitled to request
part-time hours, and only for the care of the child.

2. All employers, regardless of size, will have to consider requests for
flexible working in accordance with a procedural framework which is, in
summary, as follows:

– The parent makes a request in writing, setting out the working pattern
they want and how it can be made to work.

– The employer considers the business case for accepting or refusing the
request.

– A meeting is held within four weeks to consider the request, at which the
parent will have the right to be accompanied – as in disciplinary/grievance
hearings.

– The employee should use the employer’s grievance procedure if they have
any complaints.

– The employer should write to the parent with a decision within two weeks
of the meeting. If the request is rejected, the parent will not be able to make
a further request until one year has expired. The parent has the right to
appeal the decision in writing within two weeks.

3. If an employer does not comply with these procedural steps, the parent
will be able to raise a grievance, ask Acas to intervene with mediation or,
ultimately, bring a claim to an employment tribunal, with compensation possibly
capped at four weeks pay.

However, a tribunal can only consider:

– Whether the procedure has been properly carried out.

– Whether the business case has been explained to the parent.

– Whether, if a parent has challenged any facts, these facts are true.

4. If a tribunal does find any procedural or factual defects, it can send
the case back to the employer to reconsider and award compensation to the
parent. However, so long as the employer has established a business case for
the refusal (the kind of reasons that the new legislation gives for employers
to justify rejecting a request to work part-time are the burden of additional
costs to the business, inability to meet customer demands, etc) and held the
appropriate meetings, the tribunal will not be able to examine the employer’s
reasoning or conclusion behind their decision. Therefore, if employers take
these steps it is unlikely that a parent will have any real scope to challenge
the refusal of their request work part-time.

Sonia Velton

Disciplinary procedures

Q What will the impact be of new statutory disciplinary procedures?

A Next year, the Government’s Employment Bill will introduce
statutory disciplinary and dismissal procedures (DDPs) which would become part
of every contract of employment.

In short, employers intent on dismissing any employee will have to set out,
in writing, a statement of the relevant issues to the employee, have a meeting
on the subject, and allow the employee, if he or she wishes, to appeal. Once an
employer has complied with these formalities, it may be hard for an applicant
to show that his or her dismissal was procedurally unfair.

The proposals are not entirely clear as to how they would work in practice,
but it seems that either party not complying with those obligations will be in
breach of contract and may be prevented from bringing or defending proceedings
in the tribunal. This could mean that an employer dismissing an individual in
breach of the DDP will find that all post-termination restrictions (eg
non-competes) will be unenforceable. Any dismissal which ignores these
procedures is likely to be automatically unfair, with a minimum compensatory
award of four weeks’ pay for the employee. The employment tribunal will also be
obliged to increase (or decrease where appropriate) any compensation awarded by
between 10 per cent and 50 per cent.

The proposals appear to favour the employer by giving employees less scope
to claim any dismissal was procedurally unfair. There will also be greater
hurdles for applicants in bringing tribunal proceedings by virtue of the
obligation to appeal against a disciplinary decision, or raise a grievance,
before instituting such proceedings.

James Lynas

Easing the burden of stress

Q I have heard that a case on stress has been decided recently, making
things easier for employers. What are the main practical implications of this
case for employers?

A The case is Sutherland v Hatton and it was a Court of Appeal
decision and thus a very authoritative ruling. The main points are:

– Do not assume that any particular job makes people more or less vulnerable
to stress and/or psychiatric illness, although employers ought to pay proper
attention to the risk assessments which they should be compiling under the
health and safety legislation.

– If any issue occurs which might give rise to any concerns over whether an
employee is stressed, the first thing an employer should do is talk
confidentially to the employee. Broaching the situation will give protection to
the employer both in terms of making it more difficult to show that the
employer was negligent, and also gives the employer most chance properly to
consider reasonable adjustments under the DDA.

This decision seems to suggest that if an employee tells the employer
information about his or her medical condition, this can be usually accepted on
face value, unless there is something which clearly shows it is wrong. This is
helpful for employers, as it may do away with some of the need to get medical
information, in terms of negligence and just possibly for DDA cases.

As a result of the consultation with the individual, the employer should
strongly consider any adjustments which might be made (‘without moving
mountains’), both to satisfy the duty to make reasonable adjustments should the
person turn out to be disabled, and also in order to avoid any claim of
negligence. However, this case makes it clear that an employer would not be
obliged to dismiss or demote an individual if they wanted to continue doing
their current job.

Offering confidential counselling, leading to referrals where necessary,
appears to be almost now a complete defence against a negligence claim. Where
financially possible, all employers should strongly consider adding this
benefit to employees’ packages. However, it might be important for employers
not to know both what is discussed in these confidential counselling sessions
but also the fact they are taking place at all – to avoid some implication of
knowledge of disability under the rather stringent disability case law.

When faced with a problem of psychiatric illness/stress, employers should
take whatever steps are reasonable, without going overboard. Steps which have a
dramatic and potentially detrimental impact on other employees are unlikely to
be reasonable, and thus unlikely to be obligatory for an employer to take.

Russell Brimelow

Quality time with children

Q The Government has said that it is committed to ensuring employees can
spend more time with their young children. What exactly is it proposing and
when are we going to see legislation?

A The Employment Bill, published on 8 November 2001, introduces new
rights to paternity leave and adoption leave as well as extending the current
rights to maternity leave. The main changes are:

Ordinary maternity leave will be extended to six months (an increase on the
current 18 weeks) and additional maternity leave will also be extended to six
months. The Government proposes that SMP will be paid at a rate of £100 per
week, from April 2003, for the whole period of ordinary maternity leave (except
the first six weeks when employees will receive 90 per cent of their pay). This
is a significant increase on the current standard rate of SMP which is £62.20
and lasts only for 18 weeks including the first six weeks.

The new right to paternity leave means that usually the father will be
entitled to a single period of two weeks paternity leave to be taken within 56
days of the child’s birth, or the date of the child’s placement for adoption.
Where a child is adopted, parents will have to decide whether to receive
statutory paternity pay as they would also be entitled to the new right to
statutory adoption pay.

Adoption leave will be another new right, mirroring extended maternity leave.
An adoptive parent with at least six months service will have the right to take
six months ordinary adoption leave followed by six months additional adoption
leave. It is intended that the full six months of ordinary adoption leave will,
after the first six weeks, be paid at the same rate as SMP and statutory
paternity pay. Where the adoptive parents are married, only one of them can
elect to receive statutory adoption pay. The right to adoption leave will not
apply to foster parents adopting children already living with them or
step-parents adopting their spouse’s offspring.

The right to statutory paternity pay and adoption pay will arise where an
employee has been employed for a continuous period of at least 26 weeks before
the week preceding the 14th week before the expected week of childbirth – the
same as SMP.

These rights are expected to come into force in April 2003.

Karen Ozzard

The perils of e-mail

Q What e-mail problems do I need to look out for?

A Most people assume discrimination issues are the only ones they
need to be aware of when monitoring their e-mail systems. In fact, employers
can face criminal liability for a variety of offences.

Under the Defamation Act 1996, employers will be liable for defamatory
statements made by employees on work systems. Because e-mails leave a permanent
record, they can trigger libel actions. Even internal communications will
qualify as ‘publications’ for these purposes.

Also, employees who forward obscene material, which includes both sexual
material and violent images, can be guilty of transmitting obscene material for
the purposes of the Obscene Publications Act 1959. In this context,
transmission is viewed as including electronic transmission. Although it is not
a criminal offence to access and download pornography – although it may be
offensive and constitute harassment – the distribution of such material is a
criminal offence.

Another problem can be ‘flame-mail’ – rude, unnecessary, sarcastic or
sexually or racially unacceptable e-mails. Although this may sometimes be a
reflection of an autocratic management style, messages which amount to
harassment on at least two occasions, or cause a person to fear violence, will
be a criminal offence under the Protection from Harassment Act 1997. This
legislation allows harassment to become an offence, even if it was
unintentional.

Aggressive e-mails can also lead to a breakdown in trust and confidence and
lead to increased illness absence and constructive dismissal claims.

Employers also need to be aware of the Criminal Justice and Public Order Act
1994, which makes it illegal to intentionally cause harassment, alarm or
distress by using threatening, abusive or insulting language or behaviour, or
displaying any message which is threatening, abusive or insulting.

Clearly, this can include both on screen messages and printed material. As
might be expected, employers can be vicariously liable for these types of
offences so careful thought in the preparation of e-mail and internet policies
is worth the time and effort.

Warren Wayne

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