Questions and answers

The employment law team at Addleshaw Booth & Co answer questions on
workplace issues

Maternity leave

Q:  One of my staff is about
to start her maternity leave, and I am unsure what terms and conditions apply
during this period. In particular, is she entitled to accrue holidays under the
Working Time Regulations during her maternity leave?

A:  Throughout the 18-week
ordinary maternity leave period, women are entitled to the benefit of their
normal terms and conditions of employment, except for terms relating to
remuneration (which in this context means the money element of normal wages or
salary will not be due, but most women will be entitled to Statutory Maternity
Pay or Maternity Allowance for this period). On the other hand, women taking
additional maternity leave are entitled to only a handful of terms and
conditions of employment during this period unless the contract provides
otherwise. These include the employer’s implied obligation of trust and
confidence and any terms and conditions relating to notice of termination,
compensation in the event of redundancy and disciplinary and grievance
procedures.

During ordinary maternity leave, paid annual leave (both contractual and
statutory – four weeks’ paid leave – under the Working Time Regulations) will
continue to accrue. As for the additional maternity leave period, statutory
leave continues to accrue, but contractual holiday rights will accrue only if
there is express provision in the contract.

Katie Jackson-Turner

Part-timers

Q:  We run a company and
employ a mix of full-time and part-time staff. We provide all our staff with
enhanced contractual holiday entitlement and we have generous policies covering
maternity leave, parental leave and time off for dependants. What is the new
part-time work legislation, and will it have any impact on us?

A:  The new legislation, which
came into force on 1 July, is the Part-time Workers (Less Favourable Treatment)
Regulations 2000 ("the regulations"). It makes it unlawful for you to
treat your part-timers less favourably than comparable full-timers, unless you
can justify different treatment on objective grounds.

Your part-timers, like their full-time colleagues, are entitled to a minimum
of statutory annual leave (on a pro-rata basis), maternity leave, parental
leave and time off for dependants.

However, companies like yours which extend these statutory entitlements with
enhanced contractual conditions must make sure that part-time staff have the
same entitlements as their full-time colleagues, on a pro-rata basis where
appropriate. The contractual holiday en- titlement, maternity leave and
parental leave of part-time staff should be pro rata to that of comparable
full-timers unless their exclusion can be objectively justified on grounds
other than their part-time status.

Simply providing enhanced rights is insufficient – you must ensure that in
so doing you do not treat your part-time staff less favourably than your
full-time staff.

Nikki Mifflin

Accompaniment at disciplinary and grievance hearings

Q:  I have a key member of
staff who is an active trade union member in the local area, and I am concerned
that she will frequently be asked to be a companion under the new rights to be
accompanied at disciplinary and grievance hearings. Can I prevent her from
accompanying workers employed elsewhere and refuse to pay her for this time
off?

A:  The new right for workers
to be accompanied at grievance and disciplinary hearings applies where the
worker is invited to attend a hearing being held after 4 September 2000.

Provided that the worker’s request for accompaniment is
"reasonable" workers will have the right to be accompanied by another
of the employer’s workers, an employed trade union official or a lay trade
union official.

Employers should therefore note that in order to accompany a worker at
another workplace the worker must be a lay trade union official and must be
certified by the union as having experience or training in accompaniment.

Unfortunately, it is not clear whether an employer can restrict paid time
off available to lay trade union officials to accompany their own workers and
prevent them from accompanying workers at another workplace.

The new Acas code of practice on disciplinary practice and procedures in
employment states that lay trade union officials are permitted to take paid
time off only to accompany a worker at their own work place.

The statutory provisions, on the other hand, would seem to suggest that paid
time off should be allowed, as workers are protected from both dismissal and
detriment in employment for accompanying other employers’ workers. There is
therefore an argument that refusing payment for this time off would constitute
a detriment. Clearly a court decision on this point is eagerly awaited.

Rob Riley

The test of reasonableness in misconduct dismissals

Q:  We are about to begin
disciplinary proceedings concerning an employee who is suspected of gross
misconduct for forging his expense claims. In order to dismiss him fairly, what
would we have to do, and would we actually have to prove that he is guilty of this
conduct?

A:  You will need to carry out
the disciplinary proceedings fairly, but that does not mean you have to prove
the employee’s guilt beyond reasonable doubt.

What you are required to show is that you genuinely believed in the guilt of
the employee and that was the reason why you dismissed him.

However, an employment tribunal would also look at whether that dismissal
was fair. This would depend on three further issues. First, whether you had
reasonable grounds for the belief at that time. Second, whether you carried out
such investigation as was reasonable in all the circumstances. Third, having
decided, on balance, that the employee was guilty of misconduct, did the
decision to dismiss come within the "band of reasonable responses" of
a reasonable employer?

This is the test that employers have been used to applying to misconduct
dismissals for many years, and which the Court of Appeal has recently approved
in HSBC (formerly Midland Bank) v Madden. This case reaffirmed that in deciding
whether a dismissal is fair, an employment tribunal cannot put itself in the
employer’s shoes and ask whether it would have dismissed in the same
circumstances.

The correct approach is for the tribunal to assess whether an employer acted
reasonably in treating the misconduct as a sufficient reason to dismiss. It
follows that you could come to the wrong, but reasonable, decision to dismiss
and yet still have acted fairly.

Michael Leftley

Fringe benefits and third-party rights

Q:  I am about to introduce a
company car policy for the benefit of certain managers. I have heard that
fringe benefits of this type can extend to third parties, including an
employee’s spouse. How can I prevent that?

A:  If the policy is not to be
incorporated into the contract of employment there should be no problem.
However, if it is to be incorporated then the position is more complicated. The
Contracts (Rights of Third Parties Act) 1999 came into effect on 11 May, 2000,
and affects contracts entered into from that date onwards.

The Act provides that a person who is not a party to a contract (eg an
employee’s spouse) may enforce a term of the contract if the contract expressly
provides that the third party may enforce the term, or the term purports to
confer a benefit on the third party and it does not appear that the parties did
not intend the term to be enforceable by that third party.

As far as contracts of employment are concerned, it is possible for third
parties to enforce relevant terms of the contract against the employer. This
can lead to the situation where an employee’s spouse, as a third party, can
acquire enforceable rights in respect of certain fringe benefits such as the
use of a company car.

The best way to avoid the problem is to draft the company car clause (to be
incorporated into the contract of employment) in such a way as to expressly
exclude all third-party rights.

Malcolm Pike

Obligations on employers

Q:  If we give a reference or
receive a reference relating to prospective employment, we hold it on the
employee’s personnel file. Is there any obligation to disclose to an employee a
confidential reference which has been written about them?

A:  The obligation to disclose
a reference is governed by the Data Protection Act 1998. The Act contains an
exemption from the obligation to disclose this type of reference which applies
in certain limited circumstances. If you are holding a reference which you have
given yourself, then there is no obligation to disclose it.  However, if you are holding the reference
but it was given by someone else, such as the employee’s former employer, you
may have to disclose it.

You should first check with the individual who gave it to make sure he or
she has no objection to it being disclosed. If the referee objects, you should
see whether the reference can be disclosed without revealing their identity, or
whether any information which indicates their identity can be blocked out.

If that is not possible and the reference cannot be disclosed without
revealing the referee’s identity, you are released from the obligation to
disclose the reference.

Joe Glavina

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