Employment Law update
It looks like 2012 is going to be busy for employers, with changes afoot in employment law that may allow small to medium-sized businesses dismiss staff more easily. A “Compensated no fault dismissal” has been mooted, which would allow an employee to be dismissed with basic redundancy and notice with no explanation or comeback.
That’s all for next year, however – this month we look at a number of disputes between employees and their employers, a withdrawal of dismissal, and a case of sleeping on the job!
Fear of penalties resulting in dismissal
Some confusion arose last month in the case of Mrs Okuoimose, a Nigerian national who worked for City Facilities Management (CFM). As she was married to an EEA (European Economic Area) National, she had a right of residence. However, when a stamp in her passport ran out, she was suspended without pay, and dismissed some weeks later on the grounds that it would be illegal to continue to employ her.
However, on the same day as the dismissal, she provided CFM with a letter from the Border Agency stating that she could work in the UK, and was reinstated. However, Mrs Okuoimose made a claim for unlawful deductions of wages for the suspension period. The tribunal dismissed her claim, concluding that the contract was illegal during that period, as she had failed to provide proof of her entitlement to work. The EAT disagreed – if the right to residence exists, the expiry of a passport stamp does not alter that fact, and does not make continued employment illegal. It was irrelevant whether CFM thought it was behaving reasonably or that it was worried about penalties.
An employee at Orchard Farm in Dorset won a claim for unfair dismissal. When he was originally dismissed, he believed it was directly related to his being a witness at two hunting prosecutions. He had written this up on his blog, and won the right to have his anti-hunting beliefs protected.
Reasonable adjustments and issues of cost
In Cordell v Foreign Commonwealth Office, a deaf employee was supported by a team of lip speakers in her role in Warsaw. She was offered a similar role in Kazakhstan, but this was withdrawn after an assessment of the costs involved in providing a similar team of lip speakers revealed the cost of provision would amount to five times Ms Cordell’s salary – nearly as high as the costs of running the whole embassy.
She claimed disability discrimination, but while cost is not a decisive issue in deciding whether an adjustment is reasonable, this does not meant that it is not relevant.
Withdrawing a dismissal, and special circumstances
In the past, we have looked at heat of an argument resignations, where unambiguous words of dismissal or resignation are used. In one particular case last month, an employee and an employer were involved in negotiations about a transfer of status from employment to self-employed. The employee asked for more information before making her mind up, and her manager wrote to confirm her move to self-employed status before that information had been sent. In doing so, he confirmed the termination of her employment contract from a specified date.
She protested, and he attempted to retrieve his position, claiming that he had misunderstood the outcome of the negotiations.
The Court of Appeal said that these were not special circumstances. The essence of special circumstances is that the person using the unambiguous words must be given the chance to “cool off”, and say that he did not mean what was said before the recipient acts upon them. The exception does not simply provide an opportunity for a retraction or withdrawal of those words.
Sleeping on the job
A recent dispute concerned the question of whether all the hours an employee was required to stay on the premises should be taken into account in assessing whether she had been paid the National Minimum Wage. As a temporary pub manager, she was provided free accommodation, and was required to sleep in that accommodation every night as a security and preventative measure.
She claimed pay for all the time she was on the premises – including the time she was asleep. This claim was dismissed, as she was not required to do any work during the time she slept on the premises.
Ceridian provides a range of Employment Law and Health & Safety services through our partner, Ellis Whittam. These form part of our HR & Payroll packages for small businesses. For more information, contact us online or call today on 0800 0482 737.