Wright, Johnston & Mackenzie Solicitors

Flexible Working Requests

The Employment Act 2002 provides that employees can apply once each year for a change in their working arrangements. It is important that employers are aware that a request will only be counted as one in terms of the Act (and therefore only exercisable once a year) if it is a formal one.

In addition, if you agree informally to the arrangement you may be doing so on a permanent basis. For these reasons, we recommend employers always insist on a formal application in relation to requests for flexible working from employees - even when you are minded to agree to the changes. This will ensure that a further application within the same year is precluded.

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Europe Not So Flexible!

It has been reported this month that UK employers are behind the rest of Europe in terms of offering flexible working to their staff. A study has shown that 90% of firms in Europe offered flexi time to employees compared with only 48% in the UK.

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Compensation Where Employment Is Illegal

In a recent case, the Employment Appeal Tribunal held that compensation awards can not be made for lost wages for a period after a claimant?s work permit has expired. In other words, Tribunals cannot award compensation in respect of periods when it would have been illegal for the employee to work.

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ACAS Guides

ACAS have updated its guides on maternity and annual leave. These guides and the other ACAS guides are very user-friendly and can be accessed via the ACAS website, www.acas.org.uk

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Application to Tribunal ? Extension of the Three Month Time Limit

In the recent case of Harris v Towergate London Market Limited, an employee was dismissed by reason of redundancy. She did not appeal the dismissal decision under the Company procedures. Once her employment ended, her trade union advised her (incorrectly) to send a grievance to her employers, challenging the dismissal. Following this, she sent an application to the Employment Tribunal for unfair dismissal.

However, this application was out-with the three-month time limit. The Employment Appeal Tribunal found that the grievance which the claimant had sent to her employers was an appeal and it fell within Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004. Due to the fact that the employer had responded to the ?appeal? (grievance), the claimant had reasonable grounds for believing that a dismissal procedure was being followed and, accordingly, Regulation 15 (2) allowed the time limit to be extended.

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Holiday Entitlement Changes Update

With the publication of the Government?s Response to a Further Consultation on the Increase of Holiday Entitlement this month comes the news that the second stage of the increase (raising the entitlement to 28 days) will be delayed and will not take effect until the 1st of April 2009. The increase from 20 to 24 days statutory annual leave entitlement will go ahead as planned on the 1st of October 2007.

It will be of interest to many employers to note that, during the further consultation, the Government recognised that many businesses rely on their staff ?opting-out? on bank holidays to cover shifts and to keep premises open and trading as usual. The new changes will mean that businesses will no longer be in a position to do this if the opt out days encroached on the 24 days mandatory holidays. In an attempt to ease pressure on affected businesses, the Government has proposed a phase-out period so that businesses can continue to allow their staff to opt-out until April 2009.

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Sick Employees and Unfair Dismissal Compensation

In the recent case of GAB Robins v Trigg, the Employment Appeal Tribunal distinguished an actual dismissal (where loss of earnings might not be awarded) from a constructive dismissal (which covered a whole series of events, some of which gave rise to sickness absence).

In this case, the EAT held that the course of conduct by the Employer amounted to a breach of the implied term of trust and confidence, formed part of the constructive dismissal and therefore the claimant?s ill-health (which was caused by that breach) is to be treated as a consequence of the dismissal, leading to loss of earnings.

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Post-dismissal Conduct and Contributory Fault

In the case of Mullinger v Department for Work & Pensions, the Tribunal decided to reduce the claimant?s award for unfair dismissal by 75% because the claimant had removed papers from his employer?s office on the day of his dismissal (following the dismissal).

However, this decision was appealed to the Employment Appeal Tribunal, which concluded that the Tribunal should not have considered the post-dismissal conduct when assessing compensation for unfair dismissal.

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Religious Dress at Work ? What is Acceptable?

A controversial issue over the past year has been religious attire at work. Recent cases have involved a Christian worker asserting her rights to wear a cross and a Muslim classroom assistant who wished to wear a veil while teaching.

What does the law say in relation to this issue?

The Employment Equality (Religion or Belief) Regulations 2003 make it illegal for employers to ban the wearing of a religious symbol if the ban is directed at a particular religious group and cannot be legally justified. This would be direct discrimination.

Indirect discrimination occurs where an employer applies a policy or practice to all employees, but it disadvantages a particular group. For example, a rule banning all head coverings is likely to disadvantage Muslim employees. Unless an employer can justify indirect discrimination, it will be illegal. To justify, an employer must show that the rule is a means of achieving a legitimate aim, it is proportionate and there is no alternative way of achieving that aim.

To reduce the risk of claims for religious discrimination, employers should have clear reasons for policies being in place. They should discuss the issues carefully with affected employees and invite, and consider, alternatives.

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Employee or not Employee?

In a recent case, it was decided that an individual engaged to carry out maintenance duties at a hotel was not an employee. This was partly due to the fact that the worker was not obliged to carry out tasks which were requested by the hotel, which showed a lack of control over the worker by the hotel. The worker in this case had no written contract and provided his own tools and machinery, which indicated that he was self-employed rather than an employee.

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Breastfeeding At Work Campaign

The Breastfeeding Manifesto Coalition, which includes members such as UNISON, Amicus and UNICEF has launched a campaign to put pressure on the Government to look at introducing breastfeeding breaks for working mothers.

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Further Information

For further information on these or any other employment issues please contact:

Martin Stephen .(JavaScript must be enabled to view this email address), 0141 248 3434

Andrew Wilson .(JavaScript must be enabled to view this email address) or 0131 221 5560

Liam Entwistle .(JavaScript must be enabled to view this email address). 0141 248 3434

Geraldine Leonard (Praesidium) .(JavaScript must be enabled to view this email address) 0141 248 3434 or 07876 330 156

Julia MacDonald (Human Resources) .(JavaScript must be enabled to view this email address) 0141 248 3434

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