Solicitors Sheffield

EMPLOYER ADVICE – SHEFFIELD EMPLOYMENT LAWYERS

Employment Tribunal latest statistics

The Tribunals Service Report  shows that in 2009-10 there was an overall increase in the number of accepted claims to Employment Tribunals and an increase in the number of disposals. Key findings of the 2009-10 statistics indicate that:

• The number of accepted claims was 236,100 in 2009-10 – an increase of 56% on 2008-09, and 25% on 2007-08.

• The increase in accepted claims is a result of the rise in multiple claims – these rose by nearly 90% on 2008-09, but also partly as a result of the changing economic climate.
• There were 71,300 single accepted claims in 2009-10 – an increase of 14% over the previous year.
• In 2009-10, the Employment Tribunals disposed of 112,400 claims – an increase of 22%  in 2008-09. Almost three fifths of cases disposed of in 2009-10 were single cases.
• There were 126,300 jurisdictional claims associated with unfair dismissal, breach of contract and redundancy – 17% higher than for 2008-09 and 62% higher than in 2007-08, and likely to be a result of the Economic recession.
• Of the jurisdictional claims disposed of – 32% were withdrawn, 31% were Acas conciliated settlements and 13% were successful at Tribunal.
• The Employment Appeal Tribunal (EAT) received 1,963 appeals and disposed of 1,848, compared to 1,794 and 1,933 respectively in 2008-09.
• In EAT, 403 appeals were disposed of at a full hearing, compared to 418 in 2008-09.

What conditions does a pregnant employee need to fulfil in order to be entitled to Statutory Maternity Pay (SMP)?

There are 6 conditions that need to be satisfied, as follows : -

• to have worked for the employer for a continuous period of 26 weeks ending with the qualifying week – i.e. the 15th week before the expected week of childbirth (EWC)
• to have reached, or been confined before reaching, the start of the 11th week before the EWC
• to have stopped working for the employer
• to have average weekly earnings in the 8 weeks up to and including the qualifying week at least equal to the lower earnings limit for Class 1 National Insurance contributions
• to have given 28 days’ notice to the employer of the date when she expects liability to pay SMP will begin or, if not reasonably practicable, such lesser notice as was reasonably practicable
• to have produced medical evidence of her pregnancy and of the Expected Week of Childbirth (EWC).

When is the earliest date an employee can start maternity leave ?

Maternity leave can be started up to 11 weeks before the due date. At least 3 weeks notice is required unless it’s not “reasonably practicable” to do so. If the baby is born before the agreed leave begins, it will start automatically that day.

What is statutory paternity leave ?

Paternity leave is paid or unpaid time off work to care for a child or make arrangements for a child’s welfare. This leave is separate from usual holiday allowance. Most employees whose wife or partner has given birth, or who have adopted a child, are legally entitled to take 1 or 2 weeks’ paid paternity leave.

Who qualifies for paternity leave?

Aside from the employee showing if necessary, the appropriate legal/biological relationship with the baby, the employee must have worked for your employer for at least 26 weeks by the end of the 15th week before the baby is due.

What is parental leave ?

Parental leave provides the right for parents to take time off to care for a young child or a child with a disability or to make arrangements for their welfare.

What are the qualifying criteria for parental leave?

Any parent who has completed 1 year’s service with their current employer is entitled to 13 weeks’ unpaid parental leave for each child born or adopted. It may be taken at any time up to the child’s 5th birthday. Parents of disabled children can take up to 18 weeks unpaid leave up to the child’s 18th birthday. Employees remain employed while on parental leave and the terms of their contract, such as contractual notice, still apply.

At the end of parental leave, employees have the right to return to the same job as before or, if that is not practicable, a similar job which has the same or better status as the old job. If the leave is taken for a period of 4 weeks or less, the employee is entitled to return to the same job.

What if an employee asks for emergency time off due to a family illness ?

All employees have the right to take a reasonable period off work to deal with an emergency problem involving a dependent such as a child, partner or parent. There is no set time allowed for this, although your employee handbook may state some guidelines.

Long Term Ill Health

Dealing with long term ill health is very different to dealing with short term persistent absenteeism.

What should an employer deal with long term absence ?

• Keep in touch with the employee.
• If their condition improves consider if they can return to work.
• If they can return, consider offering them suitable alternative employment.
• Ask for information from the employee’s doctor (although be very careful that this is done through the employee who may or may not co-operate) and take into account what the medical practitioner says.
• Subject to employee co-operation, consider obtaining a medical opinion from an Occupational Health Consultant.

Can an employee be dismissed for long term absenteeism?

This can be legitimate legally on the grounds of incapability to do his or her job but it is crucial to deal with such a situation in the correct way, failing which a Tribunal claim may be brought and these types of claim can be very expensive. In considering any dismissal the employer must adopt a fair procedure in all the circumstances.

What steps might constitute a fair procedure before dismissal for long term sickness absence ?

• Check your company’s employment contracts, staff handbook and any policies & procedures and comply with them
• Check how similar situations may have been dealt with in the past and act consistently
• Document everything
• Consult with the employee
• Take steps to obtain the employee’s consent to assess his or her medical position
• Assess whether the employee may be classified as disabled under the Disability discrimination Act
• Consider the employee’s opinion
• Consider the possibility of offering alternative employment

If an employee has any physical or mental impairment which has or is likely to last for a long period of time, and has substantial or long term effects on their ability to carry out their normal day to day activities the employee may be considered disabled for the purpose of the Disability Discrimination Act, and this should also be taken into account. If ignored, it can give rise to further claims.

Varying an employment contract

The agreement of the employer is not always required to change some matters. For example certain non contractual work policies where these do not need to be included in a contract.

However significant changes to employment terms should be carefully considered as a change could be seen as a fundamental breach enabling an employee to resign and bring a constructive dismissal claim. This can be avoided by putting express terms stating that a particular term is subject to variation.

Employers have three ways to alter the terms of their existing employment contracts:

1.     Consult the employee before making changes and offer a small incentive to encourage the change.

2.     Make unilateral changes. This is a risky strategy. If the employee does not complain about the changes then his lack of complaint cannot be taken as acceptance of the variation. The employee can continue to work and may still be entitled to bring an employment claim.

3.     Terminate current employee’s contract and offer them a new contract on new terms. If employer and employee cannot agree this strategy is a less risky than imposing the employment terms unilaterally. The employer must offer the new terms and re hire the employee immediately. Employers should be made aware that this approach may be considered to be a redundancy which means that appropriate redundancy consultation rules should be observed. Note that even if the employee is re hired he may still bring an employment claim.

Depression can constitute disability and does not need to be diagnosed by a specialist

In a recent case, a job applicant successfully applied for a job which was offered to her subject to a  medical questionnaire. Upon the employer finding out that the applicant had a history of depression, the offer was withdrawn (although the employer denied this was due to the depression and gave another reason).  The importance of this case is that :-

• Employers should not make the mistake of thinking that depression is not a disability under the Disability Discrimination Act
• A Tribunal can accept the opinion of a GP if specialist evidence is unavailable or perhaps unconclusive
• It emphasises that employers should be very careful in the recruitment process as discrimination can apply to this just as much as employment.

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