Questions and answers

The employment law team at Stephenson Harwood answer a range of workplace

Dress codes

Q:  Can I insist that my employees
do not turn up for work looking scruffy?

The answer to this is "probably". You can enforce a dress code
provided that you can show the dress code is reasonable in the circumstances of
the employment. A straightforward example would be overalls for catering staff.

There has also been a recent case whereby an employee with a financial
services provider, who repeatedly turned up for work with holes in her jumper
and in her shoes, was fairly dismissed when she refused her employer’s efforts
to smarten her up.

Conversely, a man who wished to wear his hair in a ponytail was
discriminated against on the grounds of sex when his employer sacked him for
doing so.

In the highly publicised case of Judy Owen v PGA, 2000, the tribunal stopped
short of saying that the introduction of a policy whereby women were not
allowed to wear trousers was discriminatory but I would suggest that the
enforcement of such a policy may be difficult.

Tom Flanagan

Working time

Q:   If a senior manager is contracted to work 40 hours a week but, due
to the volume of work and his commitment to the job, he often works 60 hours
per week, is he covered by the unmeasured working time exemption or do his
working hours need to be limited to 48 hours a week?

The answer will depend on the individual facts of the case. If the contract
also states the manager must work the hours necessary to complete the job, the
exemption won’t apply.

However, provided he has discretion over how and when the additional work is
done and provided he can prioritise his tasks in order to work less hours if he
chooses to, then the additional 20 hours would come within the unmeasured
working time exemption (as amended) and they would not count towards the 48
hour weekly limit on working time.

As there is some doubt over how many cases the exemption will cover in
practice, if your employees want to work more than 48 hours a week you may
prefer to ask them to opt out of the regulations to ensure maximum protection.
The risk of inviting them to contract out is that you are then conceding that
they are within the provisions requiring the average working week not to exceed
48 hours. This means they can therefore opt back in.

Sally McFarlane

Health and safety

Q:  Can I fairly dismiss an
employee who walked out having alleged that his manager was harassing him?

You owe both a common law and statutory duty of care to your employees to
ensure their health and safety. Failure to meet the appropriate standards can
lead to criminal as well civil sanctions. Section 100(1)(d) of the Employment
Rights Act 1996 provides that, if an employee is dismissed for leaving his
place of work in circumstances of danger which he believed to be serious and
imminent and which he could not avert, this is automatically unfair.

The Employment Appeal Tribunal, in the recent case of Harvest Press v
McCaffery, 1999, confirmed that "danger" can apply to an employee’s
actions as well as the workplace itself. It follows that your employee, if he
or she genuinely reasonably believes that a danger imposed by a bully is
serious and imminent – and could not be averted – would be entitled to leave
the workplace and/or refuse to return until the danger had been removed, this
is whether the bullying has been physical or verbal.

If you were to dismiss an employee in such circumstances he/she may be able
to claim the dismissal was automatically unfair for which no qualifying period
is needed. In addition, the £50,000 limit does not apply to a dismissal which
is automatically unfair under section 100(1)(d).

Andrew Rayment

Data Protection Act

Q:   I have read that under the Data Protection Act 1998 (DPA), in
order for manual data to be covered it has to be part of a structured set of
information which is readily accessible. If I keep the personnel files in a
disorganised mess, does this mean the data will not be covered by the DPA?

In a word, no! To be covered by the DPA the data must be specific and it
must be readily accessible. Practically speaking, you are going to want to be
able to retrieve information concerning employees relatively easily. If you can
retrieve the information then it is probably covered by the DPA.

If the files are kept by reference to the individuals then, even if they are
untidy and the information in them not kept in a coherent order, they will be
covered. If files are kept by reference to some other criteria concerning
individuals, for example sickness absence, then again, even if you would have
to search through the file for information on a particular individual this
would probably still be covered.

The DPA also applies even if information is held in a number of locations.
If you are able to identify where information is kept about an employee, then
it is probably covered by the DPA.

The DPA came into force on 1 March 2000. From this date, subject to the
transitional provisions, employees will be able to request to see a copy of
their complete personnel files with only a few exceptions.

Charlotte Hamer

Correct pool for redundancy

Q:  In their contracts of
employment I can ask my employees to do whatever I reasonably require of them.
If I want to make those who work in the print room redundant, must I also
consider making employees redundant who work in other areas?

If the facts fit the definition contained in section 139 of the Employment
Relations Act 1996 – namely, a cessation of business, change of workplace, or
cessation/diminution of work of a particular kind – then there is a redundancy
situation. The existence of a contractual right for you to change an employee’s
role plays no part in determining this. So long as the dismissal is
attributable either wholly or mainly to this change in your affairs, then the
reason for the dismissal is redundancy.

This position has been re-emphasised by the recent decision of the House of
Lords in Murray v Foyle Meats, 1999. In this case only employees who worked in
the meat hall were considered for redundancy, as this is where the decline in
business was, even though all employees were required to work in all areas of
the business. The case concerned what was the correct pool of employees from
which to select those who are to be made redundant.

The "change of duties" clause is only relevant when considering
whether an employee has unreasonably refused an offer of suitable alternative
employment, either for the purposes of determining whether they are entitled to
a redundancy payment or as one of the factors in determining whether they have
been unfairly dismissed.

Rufus Waddington

Time off for dependants

Q:  Can my employee take time off
to look after his ill girlfriend?

Under the Employment Relations Act 1999 all employees are entitled to take
time off if a dependant becomes ill. A girlfriend can be classified a dependant
but only if she is co-habiting with your employee or if your employee is
someone upon whom the girlfriend reasonably relies for assistance if she falls
ill. If this is the case the employee may be able to take time off work in
order to look after her.

Your employee must, however, notify you of the absence and the anticipated
length of absence as soon as is reasonably practicable. In addition, the time
off must be reasonable and your employee must be able to show that the time off
was necessary to provide assistance. He cannot take time off just because she
is sick; there must be a need for him to be there, for example on doctor’s

The law also does not distinguish between heterosexual or homosexual

Sarah Tyler

Parental leave

Q:  If my employee is entitled
only to ordinary maternity leave, can she take parental leave at the end of her
maternity leave?

Subject to the qualifying provisions, employees may ask to take parental
leave at any time including after maternity leave. Ordinary maternity leave
used to be called basic maternity leave and now lasts for 18 weeks.

The relevant rules applicable to parental leave may be contained in a
collective or workforce agreement but, at this stage, they are more likely to
be those contained in the fallback scheme set out in the Parental Leave

Under this scheme employees can take up to four weeks’ parental leave per
child per year in blocks of a minimum of one week or multiples of a week. Your
employee will need to give 21 days’ notice of her intention to take the leave,
specifying the dates on which the leave is to begin and end.

You are free to postpone the leave to a date no later than six months after
the date originally requested by her, if you can demonstrate that taking the
leave on the dates requested would unduly disrupt your business. If your
employee takes ordinary maternity leave plus parental leave of four weeks or
less she will have a right to return to the job in which she was employed
before her absence.

Claire Lee

Restrictive covenants

Q:  We are recruiting a business
development manager to identify and negotiate contracts with potential
customers. Our average contract value is in excess of £100,000 and contracts
generally take between six and 12 months to negotiate. Could we stop this
manager soliciting/dealing with our potential customers in competition with us
after he has left?

In principle yes, provided you can show sufficiently strong links between
the manager, the potential customer and your organisation, and the duration of the
prohibition is not excessive (see International Consulting Services (UK) v
Hart, January 2000). The prohibition should only apply to those prospective
customers who are in serious and active negotiations to contract with your
organisation. Also the manager should have been conducting those negotiations
or, at the very least, supervising those who were negotiating.

One note of caution, you can’t apply this type of prohibition to all your
employees. It works in the man value and complexity of your contracts.

Kate Brearley

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