The employment law team at Hammond Suddards Edge answer questions on current workplace issues

The employment law team at Hammond Suddards Edge answer questions on current
workplace issues

Trade union recognition

Q:  We do not recognise a
trade union, however we have recently been contacted by a trade union who has
stated that a majority of the employees are union members who support
recognition. What is the company’s position?

A:  The statutory right to
recognition, abolished on two previous occasions, has now been reintroduced
together with associated procedures from 6 June 2000.

Compulsory recognition is only valid in relation to collective bargaining on
matters of holidays, pay and hours. The following procedure only applies to
those employers with 21 or more employees:

– One union, or a number of unions acting jointly can make an application
for recognition in respect of a bargaining unit.

– If the employer does not agree to recognition, or ignores the request, the
union may apply to the Central Arbitration Committee (CAC). The CAC must not
act unless at least 10 per cent of workers in the bargaining unit are members
of the union, and it is clear that a majority support recognition.

– If more than half of the bargaining unit are members of the union, the CAC
will usually make a declaration of recognition.

– If not, then a ballot will be required, and in order to gain recognition
the union must have the support of the majority of all voters, and 40 per cent
of all workers in the unit.

An employer faced with the prospect of being forced to recognise a trade
union may wish to consider taking pre-emptive action. Options include: 1)
seeking a union with whom it is possible to build a constructive relationship
and enter into voluntary recognition. 2) Employees could be consulted regarding
the establishment of a staff council, to take part in consultation regarding
certain specified matters, for example, hours, pay etc. This will not prevent
the employees from applying for representation, but will make it less likely
that they will feel the need to do so. However, it means that you will retain
overall control of the process, be able to agree the scope of the collective
bargaining and set out how it will be carried out. Either way, action must be
taken sooner rather than later to take advantage of these options and avoid the
statutory procedures.

Stephen Hurley

Transfer dismissals

Q:  I am the director of a
company which has taken over another company’s assets and employees. Following
the transfer we will have an excess of employees, and I was intending to
consider relying on the ETO defence following dismissal. I am aware that there have
been a number of developments in this area, is this option still open to me?

A:  There have been
developments in the case law surrounding the ETO (economic, technical or
organisational reason involving changes in the workforce) defence. The
traditional approach has been that regulations 8(1) (the fact that a transfer
related dismissal will be automatically unfair) and 8(2) (the ETO defence) are
not mutually exclusive. However, Kerry Foods Limited v Creber & others,
1999, stated that once the principal reason for a dismissal was found to be
connected with the transfer, this was the end of the matter and the dismissal
was automatically unfair. This implied that the dismissal was either for a
reason connected with the transfer within regulation 8(1) or for an ETO reason
contained within regulation 8(2) and cannot be both. However, subsequent EAT
cases have followed the traditional approach to regulation 8(1) and 8(2)
finding that the tribunal must first consider whether the reason for dismissal
is the transfer under regulation 8(1). If that is the case, then the tribunal
is required to go on to consider whether the employer has established an ETO
reason under regulation 8(2).

In the case of Collins v John Ansell & Partners 1999, the EAT reviewed
previous case law and confirmed that the traditional approach is correct. It
therefore seems clear that the odd situation that resulted from the Kerry Foods
case has been removed and it is now open for employers to use the ETO defence
in a transfer dismissal situation.

Cherry Livesey

Rights of part-time workers

Q:  A part-time employee has
recently raised a grievance on the basis that part-timers are excluded from the
dental health scheme and permanent health insurance. What are the risks of
these policies resulting in a claim?

A:  There is a significant
risk from two areas of legislation, namely the Sex Discrimination Act 1975 and
the new Part-time Workers (Prevention of Less Favourable Treatment) Regulations

The sex discrimination claim would be one of indirect sex discrimination, on
the basis that the condition or requirement of working full-time results in the
less favourable treatment of part-time employees, who are frequently found to
comprise more women than men due to child care responsibilities, (thereby indirectly
discriminating against women). As a result of this more women than men would be
excluded from the company’s benefits which could result in an indirect sex
discrimination claim and the risk of unlimited compensation.

The second risk of a claim comes from the Part-time Workers (Protection From
Less Favourable Treatment) Regulations 2000 (implemented on 1 July) introduced
to ensure that part-timers are treated no less favourably than comparable full
time employees. This includes the right to:

– Receive the same hourly rate as full time employees

– Receive the same overtime rates as full time employees once they have
worked the normal full time hours

– Not be excluded from training or other benefits simply because they work

– Have the same entitlements to annual leave and maternity/parental leave on
a pro rata basis as full-timers.

These regulations give direct rights to part timers without the need for a
claimant using the "back door" sex discrimination legislation.

Sara Barratt

Disability discrimination

Q:  An employee has been off
sick for five months with doctor’s notes giving reasons such as a virus and
fatigue. The manager wants to dismiss on the basis that there are a variety of
reasons, with no underlying condition and the level of absence has become
unacceptably high. Are there any risks in dismissing this employee?

A: The dismissal of an employee who has been off long-term, but where
there is no apparent particular condition is a difficult and potentially
dangerous area for employers. One of the difficulties that arose in a recent
EAT case, is the issue of whether a disability discrimination claim can succeed
where the employer has no knowledge of the disability at the time of the
dismissal or other less favourable treatment.

In the case of H J Heinz Co. v Kenrick, EAT 1999, the employee had been off
work for 10 months with a condition and a prognosis that were unclear. The
company told Kenrick that if there were no indication of a return date he would
be at risk of being dismissed. Kenrick thought he had Chronic Fatigue Syndrome
(CFS), arranged to see an immunologist and asked the company to wait until he
had seen the specialist before they decided to dismiss him.

However, the company proceeded to dismiss and Kenrick was subsequently
diagnosed as having CFS. Kenrick’s disability discrimination claim succeeded
and it was concluded that the company did have knowledge of the symptoms of
Kenrick’s condition.

This case established that an employer could still discriminate against an
employee on the basis of their disability, even if they did not have any actual
knowledge of the condition that amounted to a disability.

The message for employers in these cases is not to dismiss until the medical
reasons for the absence have been identified and evidenced by medical reports.

If the physical or mental condition is then shown to be capable of coming
within the definition of a disability under the DDA, the employer will need to
go on to consider reasonable adjustments, before then going on to consider any
contractual implications and concluding the procedure for dismissing on grounds
of capability.

If the conclusion is that there is no disability, although discrimination
issues will not be relevant, the principles for a fair dismissal whether for
conduct or capability will of course still apply.

Nick Jones

Sexual harassment in the office

Q:  There has always been a
high level of banter in the office. No complaints have ever been received
although a newcomer to the team has now raised the working environment as an
issue. What is the company’s position?

A:  Working environments
involving banter can often include, or result in, banter of a sexual nature.
Although such banter may be described as "harmless fun", it can
result in difficulties and claims.

An example of such a case is Driskel v Peninsula Business Services & others,
2000, IRLR 151 that involved a manager who regularly used sexual banter in the
office and on one occasion directed it at the applicant. The EAT ultimately
held that the applicant had been discriminated against on the basis of her

It is unsafe for an employer to tolerate an environment where
gender-specific banter is common simply on the basis that no one has
complained. There are many reasons why someone might not complain, for example,
as in the case above, because promotion was in the gift of the person Driskel
would be complaining about.

Moreover, while one might laugh off the occasional bad-taste remark, a
series of them seen together could constitute less favourable treatment. It is
likely that the case will lead to more minor banter and/or fallings-out being
alleged to be gender-based; while by themselves they may amount to nothing
much, this case may give them a new lease of life in aggregate.

The message is to speak to the employee concerned immediately, and carry out
a full and prompt investigation. Consider all the issues raised, the impact on
the particular individual involved, and the fact that there may be a reason why
the complainant failed to make her disapproval and distress known earlier.
Prompt action needs to follow.

Judith Monkhouse

Privacy issues

Q:  The company monitors
employee’s use of the e-mail and telephone systems. An employee has recently
complained that this is in breach of their human rights. Are they right and
what are the main issues?

A:  Article 8 of the European
Convention of Human Rights (the Convention) provides for the right to respect
for family and private life, home and correspondence and states that there
shall be no interference by a public authority in the exercise of that
right.The Convention and this right to privacy will be implemented in the UK in
October this year by the Human Rights Act 1998 (the Act).

Personal telephone calls made by an employee at work are covered by Article
8. An employee has a reasonable expectation of privacy if they have not been
warned that telephone calls made at work could be monitored. This principle
could equally apply to e-mails and companies should therefore specify in their
policies and procedures that they reserve the right to monitor and disclose any
matters sent over these systems or stored in them.

Without such a statement employees may assume that their e-mail and
telephone calls are private. Although the Act only imposes obligations on
public sector employers, all courts and tribunals will have to take into
account and apply the Act when considering a particular case and any relevant
legislation irrespective of the type of employer. It is therefore important for
private sector companies to ensure they also comply with the Act’s provisions.
Further developments in this area include the Regulation of Investigatory
Powers Bill (the RIP Bill). In its current form it will make it illegal for an
employer to monitor an employee’s telephone conversations or e-mails without
obtaining the permission of the recipient and sender.

It has been indicated that regulations will be issued to control the effect
of the Bill. Employers should consider implementing a mechanism to obtain
consent to monitoring. Companies also need to consider having a similar
mechanism (such as a consent form) signed by identifiable potential recipients.

Sue Nickson

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