More Protection for Pregnant Women and Parents Returning to Work

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Author: Guy Liddall

The Government is looking to extend the legal protection against redundancy, so that it continues for up to 6 months after new parents and pregnant women return to work. At present, The Equality Act 2010 states that there is a ‘protected period’ that protects pregnant women and new mothers from being discriminated against when they return to work. This period commences from the start of a woman’s pregnancy until she returns to work after maternity leave.

In 2016, the BEIS conducted research which showed that 1 in 9 women said they were either fired, made redundant or treated badly as a way of forcing them to leave their jobs when they returned to work after having a child. The same research revealed that as many as 54,000 women a year may lose their jobs due to pregnancy or maternity.

As the law currently stands, a woman whose job becomes redundant during her maternity leave period is entitled to be offered (as opposed to merely having the opportunity to apply for) a suitable available vacancy, where one is available with the employer or an associated employer. If an employer fails to comply with this obligation, any dismissal will be automatically unfair and probably, though not necessarily, discriminatory. This obligation currently only arises in connection with women actually on maternity leave: If the woman has returned to work, or has not yet gone on leave, then her employer is not under this strict obligation to offer her a suitable available vacancy in priority to others. It still has to take reasonable steps to find her alternative employment, as would be the case with other potentially redundant employees.

The consultation seeks views on whether to extend this right for up to six months after employees return to work from maternity leave. The Government sees this as the simplest way of achieving additional protection – so mothers who have recently returned to work have the same protection as those on maternity leave.

Peter Stanway, our BackupHR™ legal expert comments:

If these proposals are implemented, employers planning a redundancy exercise would need to ensure they have identified any maternity returners and other parents who have returned to work within the last six months, and that they are given first refusal on any suitable alternative roles.

It is unlikely that extending the period of prioritisation for maternity returners will be particularly difficult for employers administratively. But significantly for employers, this proposal will inevitably mean that there will be more redundancy processes where they may not be able to offer suitable alternative roles to the best candidates. This proposal adds no protection for maternity returners where no suitable alternative role is available, which is very often the case. Vacancies elsewhere in the group will have to be offered to the woman, if she can fill them adequately and even if she is far from the best candidate available, internally or externally.

It could be argued that a better approach to improving retention rates immediately post maternity leave would have been for the government to look at the price of childcare and the rules relating to flexible working. It can also be argued that the Government might have focused more on what can be done to reduce the number of women who are dismissed not long after announcing that they are pregnant. There is a pressure group named ‘pregnanthenscrewed’ which aims to support women in this invidious position.

As these proposals have not yet become law there is no need to take action just yet, but the following actions should help to keep you legal:

  • Ensure that pregnant women are risk assessed early on for health & safety purposes
  • Inform them of their rights and make them feel supported
  • If redundancies arise be very careful not to disadvantage them, or women on maternity leave and make adjustments, whilst not being unfair to other employees.

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.

 

In Ball v First Essex Buses Limited, a bus driver who was dismissed after testing positive for cocaine has won compensation of almost £40,000 at an employment tribunal.

Mr Ball, who suffers from type-2 diabetes and high blood pressure, worked as a driver for First Group for more than 20 years. He said the drug could have got into his system when he licked his fingers after accepting notes from students. A random drugs test showed that he had traces of the Class A drug in his saliva. To prove his innocence, he submitted a hair follicle test that showed no trace of cocaine, but it was dismissed as evidence by the bus company.

An employment judge agreed that he could have tested positive after handling contaminated bank notes (apparently four out of five bank notes can test positive for traces of cocaine, according to experts). Mr Ball would often lick his sore fingers at the wheel, because he had to prick them with needles every two hours to monitor his blood sugar levels. As a man in his 60s with his medical conditions, Mr Ball said it would have been “reckless” for him to take cocaine as it could lead to heart problems and a stroke.

Peter Stanway, our BackupHR™ legal expert comments:

The Employment Tribunal held that First Buses had acted unreasonably in reaching the decision to dismiss. They should have considered his health, the possibility of cross contamination as he had contended, the negative hair follicle tests, and Mr Ball’s offer to be re-tested. The Employment Tribunal also noted that First Buses had failed to follow its policy which said that it would take all evidence into account. The judge said First Essex had “closed their minds” to considering any other explanations as to why their employee had tested positive. “The Respondent had no other reason to believe that the claimant had been on duty under the influence of cocaine and the claimant’s behaviour whilst on duty or at the time of the test, his demeanor, good character, longevity of service, exemplary service, age, and health condition were all contra-indicators. They closed their minds to all possible explanations that did not fit this predetermined conclusion.”

Although there was nothing in the Drug and Alcohol Policy that stated other tests should be considered, there was nothing within the procedures that stopped the Company from considering evidence that came from outside the Company. Managers had privately acknowledged this possibility in communications but would not admit ‘new evidence’.

There is a positive obligation on the employer to consider all aspects of an employee’s case.

Although failing a drug test is likely to be gross misconduct, the process followed in dismissing an employee and considering appeals must also be fair and employers must follow a fair process in all circumstances. Just because the offence is serious does not mean that a harsh approach has to be taken. Given the seriousness of the accusations and the potential impact, then employers should be flexible and be open to deviating from ‘normal’.

It is sensible to take a firm approach with drug and alcohol issues particularly where there are safety implications, but firm should not mean rigid and unthinking.

Actions

  • Follow your procedure and the ACAS Code of Practice.
  • Investigate thoroughly and impartially.
  • Be prepared to deviate when necessary to consider evidence contrary to your evidence.
  • Keep an open mind.
  • Consider any mitigating factors when giving your decision.

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.

Annual leave may not accrue during parental leave, when the contract of employment is suspended held the European Court of Justice (ECJ) in Tribunalul Botosani v Dicu.

Ms. Dicu, a judge in the Regional Court of Botosani, was entitled to 35 days’ paid annual leave. Having been absent from work on maternity leave from late 2014 to early 2015, she opted to take parental leave from 4 February 2015 until 16 September 2015. She then extended her period of absence to 17 October by taking 30 days of annual leave.

The ECJ considered the Working Time and Parental leave Directives. For some purposes, the right to annual leave presupposes that the worker was actually at work, but for others (such as sick leave or maternity leave) it doesn’t.

Peter Stanway, our BackupHR™ legal expert comments:

The Parental Leave Directive enables Member States to define the status of the employment contract during periods of parental leave, and in Romania, the contract was suspended. The result of this ‘suspension’ is that absence on parental leave is not considered as a period of ‘actual work’ for the purpose of determining paid annual leave entitlement. Therefore, the ECJ held that parental leave was not a period of work for the purposes of the Working Time Directive. The judgment focused largely on the distinction between unforeseeable, unavoidable periods of leave and leave which is taken as the personal choice of the worker involved.

In fact, it is usually a worker’s own decision to take care of their child. The principles applied to sickness and maternity leave could not therefore be applied to parental leave. Where, as in this case, statute treats the employment contract as suspended during a period of parental leave, the ECJ found that the period could not be treated as a period of ‘actual work’ for the purpose of determining holiday entitlement.

Application to the UK

The decision is not one which will change the statutory position in the UK; as the Maternity and Parental Leave Regulations 1999 states that the employment contract will continue, albeit in an altered form, during parental leave. This case may however be relevant in some situations, such as where an employee is to be absent from work on a career break or sabbatical. UK law leaves it open to the parties to negotiate the terms of the absence – including whether or not holiday will accrue.

Parental leave is an unpaid right accorded to parents of children who are under the age of 18 and allows the parent to take up to 18 weeks, unpaid (although individual contractual arrangements may offer pay during parental leave). Employees who have been employed continuously for 12 months by their employer are entitled to parental leave. There is a simple process by which an employee should notify the employer of his or her intention to take parental leave, and the employer has the right to postpone the leave. Importantly, the parental leave provisions offer protection to an employee who takes parental leave, or who seeks to take parental leave.

Parental leave is an under-used benefit because it can be difficult in practice for employees to exercise their rights. It is usually unpaid so can put people off taking time, even when it is available.
This is a good decision for employers and although we do not really have many clients with regular parental leave requests it is encouraging that the ECJ can come up with a common sense decision.

Actions

  • Ensure that you have a well-worded policy on parental leave that is publicised and understood.
  • Do not confuse it with Shared Parental Leave or Paternity Leave.
  • Deal with any requests sensitively, properly and pragmatically.
  • Get advice if you get requests for leave that do not fit the legal criteria.

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.

In WM Morrison Supermarkets plc v Various Claimants, the Court of Appeal has upheld the decision of the High Court that an employer was vicariously liable for the actions of a rogue employee, who disclosed the personal information of around 100,000 colleagues on the Internet. The Data Protection Act 1998 (DPA) did not exclude vicarious liability in such circumstances, and there was a sufficiently close connection between the employee’s employment and his wrongful conduct for it to be just to hold the employer liable. In so holding, the Court has confirmed that motive is irrelevant to the test for vicarious liability, even when, as here, the employee’s motive was to harm the employer rather than to achieve some benefit for himself, or to inflict injury on a third party.

Mr Skelton, a disgruntled senior IT internal auditor at Morrisons, was asked to send data to external auditors. He exploited his legitimate working access to their databases to steal and post online the personal details of employees. The data consisted of names, addresses, gender, date of birth, phone numbers (home or mobile), national insurance numbers, bank sort codes and account numbers, and salary details. He was convicted of fraud and offences under the Computer Misuse Act 1990 and the DPA, in pursuit of a personal grudge against Morrisons. Some 5,000 employees sought to hold them vicariously liable for Mr Skelton’s misuse of their private information and breach of confidence.

Peter Stanway, our BackupHR™ legal expert comments:

Lawyers’ views remain divided on whether such activity was truly in the course of employment, or a ‘frolic of the employee’s own’. From a corporate compliance standpoint, the decision causes a problem, since there is, in effect, very little that can be done to protect an employer (and consequently data subjects) from the actions of a rogue employee. For the Courts to find that the employer can be liable for a malicious breach, notwithstanding that it took appropriate steps to protect the data, will be of concern to many businesses.

The Court of Appeal specifically rejected Morrisons’ public-policy argument that vicarious liability in similar scenarios imposes a disproportionate burden on “innocent” employers. The Court’s strict stance in that regard should be viewed in conjunction with the possible increase in data protection-related group litigation now that the GDPR is in force. The decision is particularly notable in light of the ICO’s conclusion, following its investigation into this case, that Morrisons had not breached the DPA, and as such, should not be fined. On a practical level, the Court suggested that employers should insure against data breaches committed by employees given the large potential liabilities involved.

The case is likely to go to the Supreme Court, but whatever the result there, organisations cannot be complacent about data protection.

Actions

Notwithstanding our concern that there is little that can be done to prevent clever, senior, malicious individuals from committing illegal acts; employers should ensure that they have:

  1. Properly vetted staff, particularly where they require access to confidential information.
  2. Clear, easily understood and relevant policies, which are regularly updated and communicated to employees and some contractors.
  3. Train staff on security rules and requirements.
  4. Close monitoring of how sensitive data is handled.
  5. Protocols which prevent indiscriminate access to, and copying of, sensitive information to personal devices.
  6. Strong indemnities in employment contracts as a financial deterrent to potential rogue employees.
  7. Sufficient insurance policies in the event of “Armageddon” – as the Court put 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 a free initial chat on 01480 677980.

The Parental Bereavement (Leave and Pay) Act 2018 was granted Royal Assent on 13 September 2018, having started out in July 2017 as a Private Member’s Bill subsequently supported by the Government. The Act introduces a new statutory right to a period of paid leave in the event of the death of a child. It is believed that this affects about 8,000 parents a year.

The Act will offer, as a day one right, two weeks’ bereavement leave (unpaid) to any employed parent who loses a child under the age of 18, or who suffers a stillbirth after 24 weeks of pregnancy. Further, employees will be eligible for statutory bereavement pay if they meet certain criteria, including that they have been employed for at least 26 weeks, ending in the week of the child’s death, and have given the correct notice. It is designed to go some way to help ease the pressure on parents grieving a child.

Bereavement leave will have to be taken within 56 days of the child’s death and parents who have lost more than one child will be entitled to take leave in respect of each child.

There will be a further consultation on the practicalities of taking the leave, to be detailed in separate regulations in due course, setting out how parental bereavement leave and pay will be taken, and the eligibility criteria. This will include details of notice requirements, whether leave can be taken in separate blocks, and, whether employees who are not the biological parent of a child (but who have been significantly involved in caring for the child, such as step-parents) will also qualify for leave and pay. We expect that the criteria will in some way reference the employee’s care of the child before the child’s death.

Peter Stanway, our BackupHR™ legal expert comments:

The rights provided by the Act are expected to come into force in 2020, on a date yet to be determined but probably early April.

Under current legislation, employees only have the right to take a reasonable amount of unpaid time off work to make arrangements following the death of a dependant. However, the cases on this limit the amount of time off to one or two days at most, save in exceptional circumstances. The change in law is therefore the first time in the UK that specific bereavement leave has been made both a legal right for up to two weeks and paid, albeit this is very unlikely to mean full pay.

Actions:

  • If you already have a policy we recommend that you follow your usual absence policies.
  • You may wish to review it in the light of the Acas guide to managing bereavement in the workplace
  • After the Regulations have been published, employers should review any existing policy or put one in place.
  • Ensure that managers are trained on the new law.

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.

The Supreme Court has recently given its judgement in the case of Pimlico Plumbers Ltd v Smith. This is an important judgement in determining whether or not persons described as “independent contractors” are in fact in law “workers”, thus enabling them to bring claims for holiday pay, unlawful deduction of wages and discrimination claims. Mr Smith was engaged by Pimlico Plumbers for over five years. His contract stated that he was an independent contractor, that he was in business on his own account, that he was under no obligation to accept work and that the company was under no obligation to offer him work. The contract stated that he would not be paid if a customer failed to pay for the job and he was responsible for ensuring that liability insurance was in place. He was registered for VAT, submitted invoices to Pimlico Plumbers and filed his own tax returns as a self-employed person.

The Court decided that the plumber in question was so much an integral part of Pimlico’s operations and was subordinate to it, that he fell within the definition of a “worker”. Even though the Claimant was allowed to accept work outside Pimlico, there were also features of the contract which strongly militated against recognition of Pimlico as a client or customer of the Claimant. Although he could provide a substitute for his work, the substitute could only come from their list of plumbers.

Other important factors were that he:

  • Wore a Pimlico uniform and had to be clean and smart at all times.
  • Drove a Pimlico van.
  • Carried a Pimlico identification card.
  • Agreed to a suite of covenants restricting his working activities after termination.

The subordinate position of Mr Smith to Pimlico was a key indicator that they were not a client of a business run by Mr Smith, but that he was really their worker.

Peter Stanway, our BackupHR™ legal expert comments:

The case sends out a clear warning to all businesses that although an individual may be described as an “independent contractor” they are in fact in law a “worker” and therefore have entitlement to a range of ‘employment’ rights. The ruling is in line with what was expected and with other recent high-profile employment tribunal gig economy cases, such as the Uber decision.

In every case like this, courts will have to grapple with the facts of the particular case; considering whether personal service is required, if there is a genuine right to provide a substitute and looking at questions of control, risk and subordination. This analysis will go beyond the terms of the written documentation. What has emerged from the recent line of cases is that where a business seeks to exercise a significant amount of control over how and by whom the work is done, integrates the individual into its own business, and dictates terms which put them in a subordinate position, they are likely to be found to be a worker (if not an employee).

It remains to be seen whether the Government will take action to help provide more clarity to businesses and their workforces. Whilst they may try to legislate in this area in an attempt to make it clearer how to decide whether an individual is an employee, worker or self-employed, there will always be an element of interpretation and the outcome will turn on the specific facts of the working relationship. This means that this area is likely to continue to cause confusion and uncertainty.

The publicity surrounding the decision is likely to lead to future challenges by ostensibly self employed individuals looking to unpick those arrangements in the event of a dispute.

Actions:

  • Be aware of the possibility that so-called contractors may be found to be employees or workers in a tax or employment tribunal.
  • There are consequent risks of employment law claims or demands for PAYE and NICs arrears.
  • It is not good enough just to have a cleverly worded contract, the reality must match the wording.

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.

 

We are often asked what are the benefits of using external trainers rather than using internal trainers, or asking a member of staff to run some training.

While the obvious benefit of using internal staff for training is the cost, this has to be carefully weighed against what type of training is needed and what you are looking to achieve for both the attendees and the organisation from any training.

As a general rule, we would say that using an internal trainer for things like your own product training can work, as clearly the Product or Sales Manager will know their products or systems better than an external trainer. However, you have to factor in the time it takes for your internal trainer to prepare the training and deliver it. Also what do you do if some important meeting comes up, or crisis within the organisation which means the trainer is unable to deliver the planned course? All the time spent getting staff together on a specific date is lost.
When you get into the area of behavioural or specialised training, we feel the balance certainly tips in favour external trainers. This is because external trainers are specialists and have to keep up to date with:

  • new methods
  • new industry standards
  • new methods and processes of delivery
  • what is happening across many sectors
  • what is new in their specific area of expertise

The delegates see external trainers as experts, which is less likely to be the case when using your own staff. Delegates can often be more open in sharing problems with an external trainer, either in open forum or informally. If the ‘boss’ or Manager of staff is giving the training, that may well inhibit open communication.

The saying ‘No man is a prophet in his own land’ comes to mind, which means (taken out of its biblical context) that your own people see you they way they always saw you, regardless of what you have to say. A less kind explanation is that ‘familiarity breeds contempt’. Whilst internal trainers may ‘know their stuff’, it sometimes comes better from an expert external source. We often find that people require someone from outside to reinforce what their HR professional has been telling them for years, that they have either never quite understood or believed.

The external trainer can get delegates to think ‘outside the box’ and challenge ‘we’ve always done it that way’ responses. A trainer from within the organisation may well be limited by their own knowledge of the organisation and end up colluding with delegates views, rather than trying to push boundaries.

Finally, we are hearing more and more about a growing skills shortage and organisations will need to focus on developing and retaining staff. Employing an external expert trainer to deliver training and development to your staff shows you are prepared to invest in their future with you, in a way that using internal staff may not.

So while there are some cost savings to be made using internal trainers, it may be a false economy when you consider the many benefits employing an external trainer brings.

  • Specialist training expertise
  • Experts in their area of training
  • Wide and varied industry experience bought to training
  • Increased credibility with delegates
  • More open communication
  • More likely to encourage thinking ‘outside the box’
  • Shows your staff you are taking them seriously by investing in their future with your organisation.

The symptoms of it can be – in certain circumstances – according to a recent Glasgow employment tribunal.

Ms Davies, a court officer for the Scottish Courts and Tribunal Service (SCTS), had been suffering from extensive medical problems related to the menopause. She was prescribed medication which required to be dissolved in water. On one occasion, after returning to the court, she noticed that a water jug on her table had been emptied. She could not remember if this contained her medication, and became concerned that two male colleagues were drinking her water so she informed the men of this; one of whom “launched into a rant” as a result.

A health and safety investigation was launched and it was later determined that the water didn’t contain the medication. Nevertheless, Ms Davies was dismissed for gross misconduct as a result of this incident, the SCTS stating that she knowingly misled the two men and had failed to follow their “values and behaviours”!

The tribunal found that she had been unfairly dismissed, and her dismissal was because of something arising in consequence of her disability. She was awarded £19,000, £5,000 of which was for injury to feelings for disability discrimination, and was also given her job back (which is very unusual but appropriate in this case).

Peter Stanway, our BackupHR™ legal expert comments:

It is important to note that this case does not confirm that menopause will automatically be classed as a disability; it depends on how it affects the individual woman at that stage in her life. Therefore, this type of condition will be judged by the effect of the individual’s symptoms. We were predicting three years ago that the menopause may well be classified as a disability, and this decision confirms our thoughts. We are aware that it is only a tribunal decision and has no legal weight, but would expect other tribunals to come to the same conclusions depending on the symptoms and facts. The menopause does not of itself amount to a disability, but the physiological or physical consequences of going through it can do for those women who suffer significant health problem as a consequence. To meet the definition in the Equality Act, the symptoms must have a ‘substantial and long-term adverse effect on the ability to carry out normal day-to-day activities’.

What does this mean for employers?

Before making a decision with regards to an individual’s employment, it is important to take all aspects of the individual’s current state into account. It is clear that Ms Davies was suffering from severe symptoms of menopause and this should have been taken into account by SCTS, before dismissing her for gross misconduct.

Outside of a disciplinary scenario; employers should take reasonable steps to support affected employees in coping with their condition.

Building awareness of the condition, considering practices and creating healthy environments for workers can only be a plus point. The menopause should be on employers’ agendas in order to make the workplace a safe and understanding space for the women going through this phase of life. Whilst many women will have only minor discomfort in some cases reasonable adjustments are necessary which need not be costly or complicated. Employers can help by communicating to their workforce that health-related problems such as the menopause are ‘normal’.

Possible actions:

There are no universal easy solutions but some simple cheap actions may help:

  • increased flexibility of working hours and working arrangements
  • relocation of desks closer to opening windows and or control over heating
  • plentiful supplies of cold water; and more frequent toilet breaks
  • rethinking of uniforms specifically avoiding nylon
  • good and honest communication between the manager and the employee

Improvements in workplace arrangements should therefore become accepted and normal.

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.

 

Most of us enjoy the hot weather but many of us also find it oppressive and difficult to work in. It is worth reading the Health and Safety Executive (HSE) on workers whose job keeps them outside for most of the day. Their leaflet INDG337: Sun Protection: Advice for Employers of Outdoor Workers gives advice on reducing the health risks for such employees.

The leaflet advises outdoor workers to follow the sun protection six-point code:

  1. Keep tops on to act as a barrier from the rays of the sun.
  2. Wear a hat with a brim or flap that protects the ears and back of the neck.
  3. Stay in the shade wherever possible, especially at break times.
  4. Use a high factor sunscreen on any exposed skin.
  5. Drink plenty of water to avoid dehydration.
  6. Check skin regularly for any unusual moles or spots and see the doctor promptly.

Employers or managers responsible for outdoor workers should make their workers aware of the above points and especially:

  • Include sun protection advice in routine health and safety training, as well as informing workers that a tan is not healthy but a sign of skin damage.
  • Make sure that they drink plenty of water to avoid dehydration.
  • Encourage workers to keep covered up when the sun is at its hottest.
  • Encourage workers to use sunscreen with a protection factor of at least 15.

The HSE says, “UV radiation should be considered an occupational hazard for people who work outdoors” so this needs to be considered as part of any generic workplace risk assessment undertaken.

Other workers that need to be considered are those that work in hot conditions all year round but when there is additional summer heat, their environments can get even hotter. These can range from professional kitchens, bakeries and laundries through to heavy industrial processing activities such as smelting or welding. These workers are at risk of heat stress, which is when the body’s means of controlling its internal temperature starts to fail. Air temperature, work rate, humidity and work clothing are all factors that can cause heat stress; the problem being is that it is not an obvious risk to people that are only passing through rather than actually working there. Factors to reduce risks include:

  • Control the temperature e.g. fans or air conditioning.
  • Provide mechanical aids to reduce strenuous work.
  • Regulate the length of exposure e.g. job rotation.
  • Encouraging people to drink small amounts frequently during and after working.
  • Provide training about heat risks, symptoms of heat stress, safe working practices and emergency procedures. Make sure first aiders know about what to look out for and what treatment to provide as well.
  • Allow workers to acclimatise to their environment and asses if they are fit to work.
  • Identify those who may be more susceptible to heat related illness, due to health problems or medication e.g. pregnant women or those with heart conditions.
  • Monitor the health of workers at risk and seek OH advice if necessary.

There is a useful example of a heat stress checklist and risk assessment at:
Heat Stress Checklist.

Finally, for those that are simply suffering the heat in an office environment, there is no upper temperature limit that employers must adhere to. The Workplace, Health, Safety & Welfare Regulations however, do require that working areas should be adequately ventilated with clean fresh air drawn from a source outside of the workplace with suitable circulation. That can mean either opening windows to switching on the air conditioning. High quality drinking water must be readily available. Workers who spend many hours in a vehicle driving can suffer with heat exhaustion increasing the risk of accidents, so make sure that they carry plenty of fresh drinking water in their vehicles, switch on the air conditioning, and take appropriate rests especially when driving at the hottest time of the day.

Actions

  • Check that your risk assessments cover hot weather
  • Make sure that your control measures are adequate for all of your workers, indoors and out, and anyone in between!

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.

Mr Afzal was a trainee manager for a fast food company and had the right to work in the UK but had failed to produce evidence before the end of his limited leave to remain (which gave him the right to work) in August 2016. On the day that his leave would have expired, Mr Afzal sent an email to his employer with evidence of his application to the Home Office. That application automatically extended his right to work. The attachments with the evidence could not be opened and the Respondent dismissed to avoid civil and criminal penalties under the Immigration, Asylum and Nationality Act 2006. In the dismissal letter, East London Pizza failed to offer the right to an appeal. They also argued in the tribunal that there was “nothing to appeal against”; new evidence would not have undermined the reasonableness of the Respondent’s belief at the time of dismissal.

The Employment Appeal Tribunal rejected that argument which had succeeded at Tribunal. The Judge said that while the employer was justified in urgently dismissing the employee when it did, since it had a genuine belief that his employment was by then illegal, if evidence had been produced upon appeal, that the employee was entitled to work at all material times, the employer could immediately have rescinded the dismissal without fear of prosecution or penalty. He decided that production of the evidence of right to work could have happened during an appeal process and the contract could have been revived “without fear of prosecution or penalty”. Affording an appeal allows matters of this kind to be considered again ‘rather more calmly than can be done as the time limit expires’ holding that the whole of the process, including an appeal, was relevant to the question of fairness.

Peter Stanway, our BackupHR™ legal expert comments:

Allowing a right of appeal in right to work cases is always good employment relations practice, even where immigration compliance is at stake. If an appeal had been offered, there were various ways in which he could have established his right to work. He could have provided documents demonstrating the in-time application. They might have obtained the relevant number from him and then made its own enquiry of the Employment Checking Service. Had his right to work been established, there was no reason why he should not have been reinstated. As the judge said “The appeal process affords an opportunity for this kind of case, which can result in real feelings of injustice, to be looked at again.”

  • Employees should always be notified of the right of appeal when they are informed of a disciplinary or dismissal decision, no matter how long or short their length of service is.
  • The appeal should be heard irrespective of the seriousness of the offence or the circumstances.
  • The Employee has the right to be accompanied at any appeal with either a (current or former) work colleague, or, accredited trade union representative.
  • Appeals should be dealt with as speedily as is practicable and wherever possible, heard by a manager who is more senior than the person who took the disciplinary/dismissal action.
  • The employee, or their representative, should have an opportunity to comment on any new evidence arising during the appeal before any decision is taken. They can also comment on whether the original disciplinary/dismissal process and decision, including any investigation, was fair and proportionate.

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.