by David Greenhalgh, a partner in London lawyers, H2O Law LLP, specialising in employment law and reputation management
- The government estimates that there are currently 6 million carers in the UK, 3.3 million of whom are employees. However, not all of these employees will benefit from the extended provisions of the flexible working regulations. The right to request flexible working will not apply to employees who care for an adult who is not a relative or who does not lives at the same address as the employee, i.e. a neighbour or a friend
- The obligation on the employer to try to accommodate flexible working requests was highlighted in the recent case of an airline pilot who won her 3 year campaign against BA which refused her request to cut her hours by 50% to enable her to look after her two young children. The Employment Tribunal found that BA had indirectly sexually discriminated against the employee for refusing to agree to her flexible working request. BA has decided not to appeal the decision
- N.B. – employees only have the right to request flexible working, not to flexible working itself – as long as you can justify the decision and have paperwork to back this up, you can refuse a request on legitimate business grounds (i.e. burden of additional costs, inability to recruit additional staff and/or to re-organise work amongst existing staff)
- TIP – always seriously consider requests for flexible working and only refuse a request where you are confident that your reasons for refusing the request are justified and will stand up to examination by a tribunal. Where you are not able to accommodate a particular request, consider exploring other options with the employee to see if you can reach a compromise that suits everyone.
Disability – Risk Assessments & ‘Reasonable Adjustments’
- All employers are required to make ‘reasonable adjustments’ to any provision, criteria or practice (i.e. working hours, recruitment procedures) or to any physical features in the workplace to try to reduce any disadvantage for a disabled employee compared with an employee who does not have a disability
- Recently, tribunals have disagreed as to whether or not a risk assessment needs to carried out by the employer for it can be said to have discharged its legal obligation to consider making reasonable adjustments
- In 2003, the Employment Tribunal decided that employer must conduct a risk assessment before making any reasonable adjustments. However, in a landmark case last year, the Employment Appeals Tribunal ‘EAT’ held that the employers are not obliged to consult with disabled employees and carry out a risk assessment as part of their duty to make reasonable adjustments. More recently, the Court of Appeal appeared to dilute this decision and criticised an employer for failing to carry out a risk assessment whilst it considered making reasonable adjustments. This was regardless of the fact that the employer had commissioned nine medical reports on the disabled employee’s condition
- TIP - Given the above, as a matter of good practice, the advisable approach is to always carry out a risk assessment before you consider what reasonable adjustments (if any) you should make.
Statutory Dismissal Procedures
- The Employment Appeal Tribunal recently held that where a Claimant’s employer had “blatantly failed to comply” with the statutory dismissals procedures, the Claimant’s compensation for unfair dismissal should be uplifted by 40%. The EAT held that an uplift of 40% was appropriate on the ground that the provisions are designed to be “more penal than compensatory in nature”
- In another case, an employer had complied with some of the statutory dismissals procedures but had admitted at the tribunal that it had not complied with all of them. In this instance the tribunal also held that the Claimant’s award for unfair dismissal should be uplifted by 40%
- The current trend is that 40% is the standard uplift awarded; this appears to be irrespective of whether or not the employer admits that it failed to follow the statutory procedures
- The good news on the horizon is that due to immense pressure from businesses and legal practitioners, the DTI is about to begin a consultation to consider abolishing the statutory dismissal procedures and replace them with a simplified, less rigid system
- TIP - The advice is to always make sure that you follow the 3-step disciplinary procedures, and if in doubt seek legal advice when doing so, and particularly before dismissing an employee
Expiry of Final Written Warnings
- Finally, and staying on the theme of dismissals, employers have themselves been sent a warning by the EAT in the case of an Airbus employee who was summarily dismissed for washing his car when he should have been working
- In dismissing the employee, the employer had taken into account the fact that the employee had been given a 12 month final written warning for a previous similar act, but that this warning had expired three weeks before the employee was caught
- Four of the employee’s colleagues who were also caught taking unauthorised breaks at the same time had clean disciplinary records and were given final written warnings rather than being dismissed
- The EAT found that the employee’s expired written warning should not have been taking into account when disciplining the employee, even though the warning had been for a similar offence. The EAT upheld the Employment Tribunal’s original decision that the employee had been unfairly dismissed
- The advice is that employers must not take into account expired warnings when disciplining employees. In some cases employers may wish to extend the duration of warnings (i.e. where the warning is shortly due to expire but the employee is still being problematic). In this case, always ensure that your disciplinary procedure allows warnings to be extended if the employee’s conduct warrants it, or that you have a specific provision which allows you to take expired warnings into account when considering redundancy, promotion, bonuses etc.
- TIP - Always proceed with caution where expired warnings are concerned
