James Gutteridge reports on the latest employment news: how to prepare for the arrival of winter weather; an update on auto-enrolment of pension schemes; and a couple of interesting case updates.
Winter weather policies
The inclement winter weather of the last few years has shown us that there is a lot of confusion about what happens in the workplace during bad weather. This confusion is only made worse where employers do not have a policy covering instances where employees cannot attend work or carry out their job as a result of snow, floods or high winds. The key unknown amongst many staff is that, if they are not able to work - even if their absence is caused by something entirely beyond their control, they do not generally have the right to be paid.
Therefore employers are urged to look at how your organisations work, assess to what extent staff can work from home and draw up a clear policy which sets out what happens if employees cannot do their job. It helps everyone if they know exactly where they stand in such circumstances and reduces risk after the event. Some points to consider are:
- what your policies and procedures say about unauthorised unexpected absence, and whether these cover by reason of severe weather conditions;
- although generally an employee does not have the right to be paid should they not attend work in the event of bad weather, it is open to employers to be more lenient, taking into account the unusual circumstances;
- you may wish to consider the options, including unpaid leave, allowing employees to take the time as paid annual leave, or remote working;
- some employees may not be able to attend work because schools are shut due to staff absence. In these circumstances, they may be entitled to take time off as emergency leave to care for dependants (for which there is no automatic entitlement to be paid).
Always remember that, however you decide to deal with unexpected staff absence, you must ensure that you act fairly, in a non-discriminatory way and in accordance with any policies which are already operating.
We have experience in drafting policies for this type of situation and therefore please do not hesitate to contact us if you would like further advice on this issue, or would like assistance in drafting a suitable policy.
Auto-enrolment of pension schemes hit by delays
Auto-enrolment will be introduced in October 2012 for the largest employers, and then gradually rolled out to smaller employers until 2017 when every workplace will be covered. Employers who do not have their own pension scheme must use NEST, the Government established financial product. Contributions from employers will be a minimum of 3% of earnings for each employee.
The Department for Work and Pensions has now announced that some of the dates when employers are required to implement auto-enrolment of employees into a pension scheme will be delayed. The expected implementation dates are now:
- employers with 3,000 or more employees: implementation dates stay the same (October 2012 to July 2013);
- employers with 50 to 2,999 employees: dates delayed, details to be issued in early 2012; and
- employers with fewer than 50 employees: first implementation dates for this group delayed from April 2014 to May 2015.
The process of auto-enrolment is likely to have a significant effect on a large number of organisations and as such we will ensure that further guidance and information is provided to you in the new year. In the meantime, however, employers should begin giving thought to their employment documentation, namely employment contracts and relevant policies, so as to cover employee and employer pension contributions.
The recent EAT case of Dundee City Council v Sharp has confirmed the correct approach to be taken in long term sickness absence dismissal cases. The requirement on the employer is to demonstrate that they acted reasonably in holding the employee’s absence as a sufficient reason for dismissal. The steps to be taken by the employer in such a case are:
- consultation/discussion with the employee
- conducting a reasonable investigation into the employee's health
- reasonably consider whether you can be expected to wait longer before making the decision to dismiss.
The EAT held that the ET had set the bar too high in requiring the employer to investigate beyond the employee's assertion that he was not better and not ready to return to work (he was dismissed after a year's absence with depression). The ET wrongly suggested that a more stringent investigation is required in ill health capability cases than in other cases, such as misconduct. This is not supported in law.
Mr Sharp was an employee with 35 years service and it was this length of service that led the ET to be wrongly influenced in reaching its decision, suggesting that it warranted a more detailed investigation. The EAT pointed out that an employee with two years' service would have been entitled to the same level of investigation as Mr Sharp – his length of service did not entitle him to extra investigation. Therefore, while length of service is a relevant consideration in determining the reasonableness of an employer's decision to dismiss, it is not relevant to determining the reasonableness of an employer's investigation into their health.
“I take thee to be my lawful wedded husband”
The case of Dunn v Institute of Cemetery and Crematorium Management has held that direct marriage discrimination will occur if an employer treats an employee less favourably as a result of the identity of the person to whom they are married.
This case is significant as, before now, discrimination legislation was focused on the fact of marriage itself not the particular person to whom one was married. (In fact this legislation was originally introduced to stop employers refusing to employ married women on the basis they feared they would soon leave to begin a family with their spouse.)
Mrs Dunn did not argue that she had suffered discrimination because she was a married person, but that she had been discriminated against because she was married to Mr Dunn (who was not on good terms with the Chief Executive of the Institute of Cemetery and Crematorium Management (‘ICCM’)). ICCM then argued that this was too specific to fall within the protection.
The ET rejected her claim and held that the discrimination was not on the ground of Mrs Dunn’s status as a married person but because of the particular person to whom she was married.
On appeal the EAT, somewhat surprisingly, held that the ET had incorrectly interpreted the scope of discrimination on the grounds of being a married person and upheld the appeal. Therefore they held that "marital status” did include the identity of a person’s spouse and so less favourable, marriage-specific, treatment is discriminatory.
In a comment that will raise the hackles of many who hear it, His Honour Judge McMullen QC succinctly summarised that in discrimination law "a person who is not married is an ‘unperson’”, and in doing so confirmed that the protection afforded by “marital status” only includes those who are married (or in a civil partnership) and not ‘unpersons’.