Did Suarez bite lumps out of his contract?

Posted on

Category: HR Alerts

Luis Suarez has been banned from playing football for four months after ‘allegedly’ biting an opponent during the World Cup, and therefore finds himself in breach of contract. Liverpool, Suarez’s club, have had to take difficult decisions and are reputedly at an advanced stage of transferring him to Barcelona albeit for a smaller fee than they might have, had he not, as all the jokes go, ‘Gone for a bite of Italian’! Peter Stanway, our BackupHR™ legal expert comments:

So what parallels are there with employment law and practice? Leaving aside the health & safety implications and the frustration of contract arguments, it raises the issue of behaviour outside of work. To what extent is an employer legitimately entitled to say that events in the private lives of employees are relevant to their work?

Suarez was technically not involved in club activities at the time, playing for Uruguay, and therefore Liverpool have been faced with deciding whether the actions of their employee have brought the business into disrepute. His conduct at work (assault) would usually represent gross misconduct and would probably result in summary dismissal.

It could well be argued that he has brought his employer into disrepute because of the link between the off-duty misconduct and the workplace. In one legal case, a number of employees were dismissed for having a serious fight outside the workplace and after working hours. The result of the fight was “discord, fear and even perhaps terror” throughout the workplace. The resulting dismissal in this case was held to be fair. The view of the Employment Appeal Tribunal was that the incident was sufficiently close to the workplace to have an effect at work.

However, dismissal in these circumstances would necessarily be fair. The key issue is that the off-duty misconduct impacts upon the workplace so that; the employer’s trust in the employee has completely broken. The behaviour must have a serious adverse impact upon the workplace, potentially damaging the employer’s reputation or seriously undermining trust.

The most likely kind of conduct which has been deemed as bringing the business into disrepute is sexual conduct. If we return to football, this is often something which can happen to certain professional footballers who live their lives in the public eye. For example one case involving a professional football who was caught having an affair, and subsequently reported in the newspapers, was deemed to have brought his club into disrepute as this occurred while abroad, representing the club on a foreign tour. Another player, however, playing for the same football club was not found to be bringing the club into disrepute following an affair, which although reported in the media, did not happen while ‘representing the club’. Each case in relation to this area of law has to be treated on its own merits.

Action Points

  • The actual conduct by the employee must be taken into consideration alongside the actual job that the employee is employed to do and the potential damage to the employer’s reputation.
  • Wise employers will ensure that specific clauses are contained in their employment documentation, enabling them to terminate employment, should conduct outside work bring the employer into disrepute.
  • You will still be required to fully investigate the conduct and deal with it fairly
  • You should be careful not to instigate disciplinary proceedings based solely on your personal disapproval of the employee’s out of work conduct.
  • If the degree of ‘disrepute’ is minor, the best approach should be a ‘quiet word’.

Management often turns a blind eye to disruptive behaviour if the benefits outweigh the consequences, as happened before with Suarez. Such inaction has consequences, legally and in relation to employee morale, it is also a problem if a less valuable ‘player’ behaves in a similar way in the future – how can you be consistent?

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

The right to request flexible working is currently linked to carer responsibilities, including parents of young children, disabled children and adults in need of care. Under the new law, the basic right to request is unchanged. Employees with 26 weeks service can make up to one written request every year and the employer needs to deal with it in a timely manner.

Peter Stanway, our BackupHR™ legal expert comments:

For those who are not familiar with the principle of flexible working requests, this is simply the right for employees to request changes to their working hours, working times or location. If granted, such changes become permanent changes to their terms and conditions of employment. This is often associated with requests to work part-time following return to work after maternity leave, but is certainly not limited to that scenario.

The changes taking effect on 30th June will have the following main implications:

  1. All employees will have a statutory right to request flexible working for whatever reason. So forget all the eligibility conditions and preconceptions
  2. The statutory procedure will be abolished and replaced with a requirement to consider flexible working requests in a “reasonable manner”.

The requirement to consider requests in a “reasonable manner” appears at first to be vague and difficult, but ACAS have produced a Code of Practice on Handling in a Reasonable Manner Requests to Work Flexibly and an accompanying Guide, both of which can be accessed on the ACAS website,

The process outlined in the Code will be taken into account by Employment Tribunals when determining whether or not an employer has dealt with a flexible working request in a reasonable manner and therefore whether or not the employer should pay compensation to the employee as a result of mishandling a flexible working request. Their advice with which we concur is:

  • Upon receipt of a written request for flexible working unless an extension has been agreed by the employee.

A tribunal cannot normally investigate the rights and wrongs of the refusal, only whether the procedure has been properly followed. The change should have little impact on employers who already consider all flexible working requests regardless of the reasons.

It is well to remember that; it is a right to request, not a right to demand and receive.

ACTION FOR EMPLOYERS:

  • become familiar with the Code of Practice and the guidance
  • keep an open and flexible mind
  • focus employees on the requirement that they must give an explanation on what effect, if any, the employee thinks the proposed change will have on the organisation and their suggestions as to how the effect may be dealt with
  • weigh up the benefits of a change against ‘any adverse business impact’
  • try hard not to discriminate against the employee
  • change your procedures

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

A Settlement Agreement (formerly known as a Compromise Agreement) is a legally binding agreement between an employer and an employee. It is usual to provide a severance payment in return for your employee’s agreement not to pursue any claims in a Tribunal or a Court. It is a lengthy document which provides protection in relation to a number of scenarios. As identified in the ACAS Guidance, Settlement Agreements can:

  • Provide a swift and dignified end to an employment relationship that is not working;
  • Avoid the time, cost and stress involved for both parties in a tribunal claim; and
  • Provide compensation and often a reference for employees.

Peter Stanway, our BackupHR™ legal expert comments:

With difficult employees, it can be very frustrating going through potentially long, drawn-out, performance/conduct type procedures, especially when the relationship of trust and confidence has to some extent already broken down. Employees don’t like being monitored and employers like certainty and finality.

Disputes resolved by Settlement Agreement remove the cost, management time and adverse publicity of employment claims. It is in everyone’s interest for there to be a termination on mutually agreeable terms.

An employer may wish to dismiss a difficult employee on performance and/or conduct related grounds. If nothing has been done to manage the employee’s performance before producing a Settlement Agreement, the employer is likely to meet strong resistance as it will be a complete surprise to the employee. In such circumstances the Employer will need to offer a generous termination package otherwise the offer could be turned down. A less costly option is for the Employer to have attempted to address the performance issues and given the employee time to improve. In these circumstances the employer is then in a better position to offer a Settlement Agreement as an alternative to dismissing on performance grounds. While the employee may still be difficult, they are in a much weaker negotiating position.

It is important to be ‘generous’ in making the package. Also, agreeing a suitable employment reference to help the employee find alternative work and offering outplacement coaching all helps encourage the employee to take the deal. However, when talking about a Settlement Agreement, be careful to ensure that the employee is given a range of options that don’t all lead to their dismissal. For example, by advising the employee if a mutually agreed package cannot be reached, then formal disciplinary procedures will need to be commenced.

The main reasons employees commonly sign Settlement Agreements are:

  • The employee generally receives an enhanced ex gratia or compensatory amount in addition to being paid contractual notice money.
  • Employees are generally not required to work their notice period, and will be paid all sums, including contractual notice and an ex gratia amount upfront.
  • An agreed employment reference is part of the deal to help the employee find alternative employment.
  • The employee will generally be free to seek another job immediately.
  • The odds are generally in favour of the Employer under English law for Employment Tribunal claims. Pursuing a dispute in the Employment Tribunal is stressful, risky, lengthy and expensive.

It is the employer’s job to convince the employee that they should sign without resorting to improper tactics. It is important to note that for the Settlement Agreement to be valid it requires a signature from the employee’s solicitor.

The success in getting an employee to agree to taking a Settlement Agreement is all about the correct positioning and that comes with experience.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Disability & Reasonable Adjustments – Cut off time for claims

Until a recent EAT (Employment Appeal Tribunal) decision, employees had to bring a claim within three months of receiving the employer’s decision in respect of making reasonable adjustments for disabled employees. This EAT decision requires employers to review their approach to making adjustments. In Secretary of State for Work and Pensions (Jobcentre Plus) v Jamil the EAT decision implies employees will be able to bring claims for up to three months after the event. In this case, the possibility of review combined with the existence of the list was enough to lead the EAT to conclude that there was no single refusal but a “continuing act” – an ongoing duty to consider relocating.

Where there is a continuing act extending over a period, the three month period will start to run when that period comes to an end. In this case, that act was still ongoing and, therefore, Ms Jamil’s claim had been brought in time.

Peter Stanway, our BackupHR™ legal expert comments:

In the Jamil case, the employee asked to be relocated to a Job Centre branch nearer her home. However, there were no vacancies when the decision was made, and so it seemed reasonable to refuse the request. It was successfully argued that the situation could change, as a vacancy could arise at any time. This was different to a situation where the cost of making alterations to a premises or buying a special keyboard is unlikely to change. Since her employer had acknowledged that it would keep its decision under review the duty continued until it was fulfilled.

So employers will now need to consider whether the adjustments they are being asked to make are more fluid in nature and likely to change, or if they are fixed and so unlikely to change.

We would recommend you:

• Evaluate and decide if a particular adjustment is reasonable in the circumstances.

• Back up your reasons with well documented evidence and information.

• Assess and act quickly to take advantage of a possible early cut-off point for potential claims.

• Tell the employee that in the prevailing circumstances, the decision is final without hinting at the possibility of a review.

• Where circumstances could change, put in place safeguards so you can occasionally review your decision.

• Should you carry out a review, it must be clear that this is separate and unrelated to any earlier decisions you have taken.

• If appropriate, consider implementing a process such as reviewing vacancies monthly, or having electronic alerts for vacancies, which may help protect your position.

• A Settlement Agreement could be the best way to resolve any issues.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Car body repairer Pat Jessemey, brought proceedings for unfair dismissal and age discrimination against Rowstock Ltd in Oxfordshire after the vehicle business dismissed him on the ground of retirement. He then went to an employment agency for help in getting another position and, a director from his former firm gave the agency a bad reference because of the discrimination complaint. When he discovered that Rowstock had provided an unfavourable reference, he brought a further complaint that he had suffered post-employment victimisation because he had claimed age discrimination.

An Employment Tribunal found that his dismissal was both automatically unfair and age discriminatory and awarded him nearly £25k in compensation. However, the victimisation claim was rejected, despite the tribunal’s finding that Rowstock had provided a detrimental reference because he had pursued tribunal proceedings. In the tribunal’s view, it had no jurisdiction to award any remedy because it happened after he had left the business. The Court of Appeal has now held that post-termination victimisation is unlawful under the Equality Act 2010. The Court considered that the section about post-employment victimisation was a drafting error and there was no reason why the Act should not be construed to proscribe post-employment victimisation so as to comply with EU law. The Court sent the matter back to the Tribunal to determine a remedy (compensation).

Peter Stanway, our BackupHR™ legal expert comments:

This is quite a technical legal judgment but it does reflect a difficult issue. The most frustrating element of the victimisation provisions for employers is that an entirely baseless discrimination allegation can subsequently lead to a successful victimisation claim, so employers do need to tread carefully.

The case conflicts with an earlier judgment, which is slightly different because in the earlier case the courts recognised that the employer was in a dilemma and only said that they could not give a reference because of litigation. In the Rowstock case it appears to have been vindictive or retaliatory.

So in such circumstances:

• It should be safe to respond by concisely stating that as a dispute is ongoing with the ex-employee, the provision of a reference at that time may prejudice the employer’s position in the proceedings.

• Employers need to have a policy in place for giving (or not giving) references which should be applied consistently.

• Be careful about communicating with employees involved in discrimination proceedings.

• The message to employers tempted to get revenge on an employee or ex-employee who has complained of discrimination, is “Don’t do it!”

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

The Employment Tribunals (Early Conciliation : Exemptions and Rules of Procedure) have been published, confirming that Early Conciliation (EC) will come into force on 6th April 2014. Under the new rules, anyone wishing to file an employment tribunal claim will need to notify ACAS first before issuing a tribunal claim, albeit there is no obligation to actually engage in conciliation. Peter Stanway, our BackupHR™ legal expert comments:

The Rules require:

1. A prospective claimant to contact ACAS, either by submitting an Early Conciliation form or by telephone.

2. Once ACAS receives a request for EC, they must try to contact the person making the claim within one working day by telephone.

3. ACAS will then clarify any details on the application form, gather basic information on the dispute itself and explain in more detail how the EC scheme works.

4. The EC period is for up to one calendar month. During this time the Conciliation Officer will try to promote a settlement between the prospective claimant and the prospective respondent.

5. If the parties enter into early conciliation this will “stop the clock” on the limitation period to present the claim to the tribunal.

6. The EC period may be extended, provided that both parties agree and the Conciliation Officer considers that there is a reasonable prospect of achieving a settlement before the expiry of the extended period.

7. An extension of the EC period may only occur once and for up to a maximum of 14 days.

Participation in the scheme remains voluntary, with no sanctions for refusing to engage in it. However, the EC scheme is free, has strict time limits, and ACAS are effective in reaching a settlement in existing work that they do. It is hoped that this conciliation process will save employers and employees the stress and expense of facing an employment tribunal, while saving taxpayers some of the cost of running the tribunal system.

If you get a phone call from ACAS:

• Do not ignore it.

• Seek to understand the claim and find out what is being sought and whether the claimant is serious.

• Consider the merits of the claim and early settlement.

• Weigh up the costs (direct and indirect, such as management time). Depending on who you believe, the cost of fighting a simple unfair dismissal cases is in the range of four to ten thousand pounds.

• Remember that claims are often best settled early before positions become entrenched and costs multiply.

It is always best to seek professional advice from an experienced employment law practitioner before making any kind of decision. BackupHR™ has extensive experience is settling and fighting Employment Tribunal claims and would be pleased to advise at the earliest stages and to deal directly with ACAS to promote a resolution.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

ACAS has finalised its code of practice and guidance for handling flexible working requests. The right to request flexible working will be extended to all employees, not just those caring for a child or an adult in need of care. But the Government has delayed the start date of 6 April 2014 to ‘later’ this year. The legislation which extends the right to request flexible working is also about the replacement of the current statutory procedure through which employers consider flexible working requests. This includes a new duty on employers to deal with requests in a reasonable manner and within a reasonable period of time.

Among the changes made to the draft code following consultation are:

• additional detail on the information required to make a flexible working request
• removing the term ‘presumption of approval’

The latter many people felt was misleading to applicants who might believe their approval was almost certain.

Peter Stanway, our BackupHR™ legal expert comments:

Employers should continue using their current procedure, but subject to flexibility. For example, it will only be necessary to hold a discussion, rather than a meeting, which could be conducted over the phone if both parties agree. Practically if the employee is accompanied this may still have to be face to face unless you have a telephone conferencing facility.

The strict time limits which apply to the statutory procedure do not apply to the new procedure. However, the Code makes clear that any discussion should be arranged as soon as possible upon receiving a request. The whole process, including any appeal, must not take longer than three months from first receiving the original request, unless an extension is agreed with the employee.

The good practice guidance includes advice which we would reiterate whether you are handling a request now or after the implementation date:

• avoid discrimination in deciding whether to accept or reject a request

• weigh the benefits of the requested changes for the employee and the employer’s business on one hand, against any ‘adverse business impact’

• provide an explanation on the range of business reasons that have been considered in refusing a request, i.e. it is wise to make sure that you have several legitimate reasons behind the refusal

• deal with appeals against refusal fairly i.e. with an open mind

• consider using trial periods and reviews when agreeing a change to check out if a flexible working request actually works.

Flexible working requests are often difficult and are likely to be more difficult in the future with it being open to anyone to make a request. For guidance on how to do it properly feel free to contact us and minimise the risks.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing.

 

The Department for Business Innovation and Skills has announced an increase in the financial penalty on employers who fail to pay the national minimum wage (NMW). This penalty will now increase to £20,000 from February 2014.

The Government has confirmed that employers who fail to pay their workers the NMW will face an increased financial penalty of up to 100% of the unpaid wages and a higher maximum penalty of up to £20,000. The draft Regulations 2014 introducing these new limits are subject to Parliamentary approval but are expected to come into force in February 2014. The Government also intends to legislate at the earliest opportunity so that the maximum £20,000 penalty can apply to each underpaid worker. Peter Stanway, our BackupHR™ legal expert comments:

Currently employers that break NMW law must pay the unpaid wages plus a financial penalty calculated as 50% of the total underpayment for all workers found to be underpaid. The maximum penalty an employer can face is £5,000.

The increase in the penalties for non-payment follows changes made last year to make it easier to ‘name and shame’ employers who fail to pay the NMW. So far no such action has been taken, so it is difficult to evaluate how effective this change will be.

We would not normally quote from The Department of Business Innovation and Skills press releases but it is very difficult to find fault with Business Secretary Vince Cable when he says:

“Anyone entitled to the National Minimum Wage should receive it. Paying anything less than this is unacceptable, illegal and will be punished by law. So we are bringing in tougher financial penalties to crackdown on those who do not play by the rules. The message is clear – if you break the law, you will face action.”

By not paying the National Minimum Wage rogue employers are gaining an unfair financial advantage and exploiting vulnerable people.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

New guidance for employers on what constitutes good practice when conducting pre-employment checks on job applicants has been released by the CIPD, the professional body for HR people.

This alert focuses on the debate over the right to privacy associated with employers checking job applicants’ activity on social media websites such as Facebook, LinkedIn and Twitter during the recruitment process.
Peter Stanway, our BackupHR™ legal expert comments:

The CIPD guide rightly highlights the need to exercise due diligence to find out if applicants might bring the organisation into disrepute, or cause difficulties with managers or colleagues. It also highlights the legal risks and ethical challenges involved if inappropriate steps are taken or applicants are not made aware of the checks being carried out and given a chance to respond to findings.

Employers have wide discretion within the law to decide whether or not to recruit a particular candidate. However, to avoid risk of legal challenge they should be fully aware of the law on data protection and discrimination in employment. Recent social media research revealed that two in five employers look at candidates’ online activity or profiles to inform recruitment decisions, but few inform applicants as a matter of course that this is being done.

The ACAS guide to recruitment cautions against making judgments based on information from social networking profiles as it can put the company at risk of ‘recruitment bias’. This is because social media profiles will often include details of an applicant’s age, gender, race, religion etc., which are ‘protected characteristics’ under the Equality Act 2010. Unsuccessful candidates could claim, that the rejection decision was discriminatory, leaving the business open to an embarrassing and expensive tribunal claim.

The Information Commissioner’s Office treats checks on an applicant’s online profile as pre-employment vetting and its Employment Practices Guide advises that vetting should only be carried out if there are particular and significant risks relevant to the employer and its customers.

Employers may have a right to check candidates’ online profiles, but they should not go on fishing expeditions to uncover details about their private lives. They need to ask, is this information strictly relevant to the job the candidate is applying for?

There is a big difference between LinkedIn and Facebook. LinkedIn is a professional resource and as such it is legitimate to research an applicant for employment, whereas Facebook is meant to be private and therefore not a legitimate area for recruiters to research. There is a difference between being nosey and being professional.

To summarise:

• The Information Commissioner’s Office advises that vetting should only be carried out if there are particular and significant risks to the employer.
• An applicant’s age, gender, race, religion etc., are ‘protected characteristics’ under the Equality Act. A rejection decision could be discriminatory.
• Beware recruitment bias.
• If you do check candidates’ online profiles ask yourself if the information is strictly relevant to the job the candidate is applying for.
• Inform candidates if you will be looking at their online profiles as part of your recruitment process.

Finally, remember The Golden Rule, “Do unto others as you would have them do to you”.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Many employers have been rather slow to recognise work related driving as a major risk factor to employees. The HSE has now made it clear that employers have duties to manage the risks faced by their workers on the road. This includes not just professional drivers, but any employee who is required to travel as part of their normal job duties. Peter Stanway, our BackupHR™ legal expert comments:

Managing this risk requires more than just compliance with road traffic legislation. Bad weather which may involve snow, winds, floods or fog, highlights the need to ensure drivers are given guidance to make employee drivers reasonably safe. While health & safety law does not apply to commuting, it is wise to make sure you have an ‘Adverse Weather Policy’ in place. This ensures that all employees know exactly what is expected of them.

If this seems daunting consider:

• Are you prepared to wait for an employee to be seriously injured or even killed before you take any action?
• The Corporate Manslaughter and Corporate Homicide Act can be used to prosecute organisations for work related driving deaths.
• If you think safety is expensive consider the financial consequences arising from fatalities and serious injuries such as Personal Injury claims.

There is much information available on the web for drivers but very little for employers. Employers should ensure their drivers understand the risks and are trained and equipped to help them cope with adverse conditions.

You need to be aware that dismissing employees for refusing to drive in extreme weather conditions will be automatically unfair in circumstances where he/she reasonably believes that there is a serious and imminent danger to themselves or others, hence the need for good training, policies and risk assessment.

The best advice for driving in bad winter weather is not to drive at all, if you can avoid it. Some businesses do not have this luxury or will have drivers caught out unexpectedly by bad weather.

In addition to education, we would recommend:

• ensuring vehicles have regular safety checks

• joining a roadside assistance service

• equipping vehicles with emergency supplies such as a snow scraper, flares, first aid kit, flash light, bag of sand, small shovel, blanket and booster cables

• posting the number the employee should call in case of emergency in clear view inside the vehicle

• providing guidance in a useful booklet in the vehicle

• providing advanced driver training to employees that drive regularly, for example, more than 10,000 miles each year. This significantly reduces any employer vicarious liability should they be involved in a serious accident of their making, whilst at work.

If an Adverse Weather Policy is not in place, you can contact BackupHR™ for help in outlining both you and your staff’s responsibility when the bad weather comes.

We are running a one off training course on the issues employers should be aware of regarding work related driving in 2014 so check out our website for details.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.