Employment Law Update
Welcome to November’s Employment Law Update. In this month’s update:
Precise disciplinary allegations
Be careful when communicating to employees, as any slip-ups can potentially be very detrimental to the reputation of your business, and in some cases, leave you footing weighty legal related penalties. The following case highlights the dangers of being obscure when setting out the nature of disciplinary allegations to employees in any letter suspending them, or inviting them to a disciplinary hearing.
A leading contract catering and support company is facing claims of unfair dismissal, after one of their employees approached the Employment Appeal Tribunal following an allegation that she was responsible for the “loss of £3,000”, when the real reason for the dismissal was the employer’s belief that she had stolen the money.
The Tribunal confirmed that it is a 'fundamental right' that an employee who is accused of dishonesty should have that allegation put to them. The employee in question claims that she collected £3,400 in cash, which she counted and placed in a bag and then handed to the courier for the bank. However, the bank reported that they only received £400.
She was suspended and told investigations were taking place into the "loss" of the money. She was then invited to a disciplinary hearing and informed the allegations consisted of "incorrect reporting of stock figures, following of financial procedures, discrepancies in banking" and that she was at risk of dismissal. The allegation of theft had never been directly put to her, leading to a finding of unfair dismissal (although compensation is yet to be dealt with, and she might well receive no money).
National Minimum Wage
The National Minimum Wage was subject to the normal increases from 1st October 2010. There has been a slight amendment to the age bands, with the upper band now including 21 year olds (in the past, it started at age 22). The minimum wage for workers aged 21 and older is now £5.93 per hour. Employers of agricultural workers should still see the Agricultural Wages Order which still remains in force (although rumours are that the Government is thinking about abolishing it).
It’s been noted that offers of employment are frequently made "subject to suitable references". It is usually perfectly fine for an employer to withdraw an offer of employment based on an unsatisfactory reference. Any claim that the applicant may have would be against the source of the reference if it is inaccurate of malicious. However, the prospective employer foes need to be careful not to discriminate against an applicant when considering references.
In the case of Bullimore v Pothecary Witham Weld Solicitors, the Claimant (a solicitor) worked for a solicitor's firm (PWW). She had a personality clash with some managers, resigned and claimed sex discrimination. Four years later a job offer with another firm was withdrawn because of an unfavourable reference from PWW. She claimed victimisation and the Employment Appeal Tribunal (EAT) agreed that the recipient of the reference was influenced by the fact that the Claimant had brought discrimination proceedings against PWW. The EAT upheld the finding that both the provider and the recipient of the reference were liable for victimising the claimant for bringing a sex discrimination claim. An apportionment of damages between them was agreed.
The lesson is that you are not entitled to refuse a job to somebody simply because they have brought a tribunal claim against a previous employer.
Spiritualism and discrimination law
The Employment Appeal Tribunal has upheld a tribunal's decision that a belief in spiritualism, life after death and the ability of mediums to contact the dead was capable of amounting to either a religious belief or a philosophical belief under the Employment Equality (Religion or Belief) Regulations 2003 (in the case of Greater Manchester Police Authority v Power).
Ceridian's partner Ellis Whittam provides Employment Law services to businesses of all sizes. For more information, visit their website.