By Sue Nickson partner and national head of employment law at Hammond
Q A settlement with an employee that their employment was to end by
mutual agreement included an agreed reference. At the time, investigations were
taking place into allegations of discrepancies in accounts. Can we refer to the
investigations when replying to reference requests?
A No. In the case of Cox v Sun
Alliance Life, a similar agreement was reached with the employee. The agreement
did not deal with how specific questions concerning his honesty would be dealt
with, so it subsequently refused to give a clear indication that Mr Cox was
honest. The company was found it was in breach of their duty to provide a fair
and accurate reference. In particular, it should not have relied upon
"unexplored allegations of dishonest conduct".
Q An ex-employee claimed after
leaving employment that a colleague had harassed her. She has now threatened to
bring a claim of sex discrimination against us on the grounds that we have not
properly investigated these allegations. Can she make this claim?
A The former employee will not be
able to bring the complaint. The Sex Discrimination Act 1975 provides that
"it is unlawful for a person, in the case of a woman employed by him at an
establishment in Great Britain, to discriminate against her". If the
complainant is no longer employed at the time of the alleged discrimination,
she will not fall within the term "woman employed by him".
The only exception is in the case of claims of victimisation. This is where
the employee has brought a claim for discrimination during her employment and
then, post-employment, has suffered victimisation for doing so.
Q An employee on a two-year
fixed-term contract has claimed that, under new legislation, we are obliged to
pay him the same rate of pay as our permanent staff. Is this true?
A The Government is obliged to implement legislation that gives
effect to the EU Directive on Fixed Term Work. The Fixed Term Employees
(Prevention of Less Favour-able Treatment) Regulations were published with a
planned implementation date of 10 July 2001. However, it has been announced
that there may be a considerable delay before they come into force. One of the
controversial aspects of these draft regulations is that they expressly exclude
Q An employee has asked to take
four weeks’ parental leave to look after her six-year-old daughter. We have
been told that parents have to take parental leave before the child’s fifth
birthday. Is this true?
A Generally, parental leave can be
taken only up to the child’s fifth birthday or within five years of an adopted
child being placed with a family. However, parents of a disabled child may take
parental leave up to the child’s 18th birthday.
Changes to parental leave are likely to be implemented later this summer,
including the extension of the right to take leave to parents of children who
were under five at 15 December 1999.
These new regulations will give those parents a period of more than three
years after the child’s fifth birthday to take the leave.