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Newsletter-June 2007


Newsletter-June 2007

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  • pg 1
                                           Human Resource Management
                                          Keeping You Up To Date with all Human Resource
                                                    and Employment Law news

                     Teacher at centre of veil row loses appeal
Inside this issue:

                     Amina Azmi, who      face covered.           grounds for doing
                     brought an                                   so - even if this
                     unsuccessful claim   In October last         means preventing
Veil teacher
                1    against her          year, a tribunal        workers from
loses appeal         employer after she   ruled that the          manifesting their
                     was dismissed for    school's actions        religious belief.
                     refusing to remove   did not constitute      "However,
                     her veil while       either direct or        employers should
               2-5   teaching, has lost   indirect                note that the
                     her appeal in the    discrimination on       circumstances in
                     Employment Appe      the grounds of the      this case are quite
                     al Tribunal.         teacher's religious     specific - relating
                                          belief.                 to the classroom
                     Azmi claimed that                            setting, the nature
                     the decision to    The EAT has               of the teacher/
                     dismiss her was    upheld the original       pupil relationship,
                     directly and       ruling.                   and the impact
                     indirectly         Audrey Williams,          that wearing a full-
                     discriminatory on  partner and               face veil would
                     grounds of her     employment law            have on a
                     religion as a      specialist at             teacher's ability to
                     Muslim.            Eversheds law             do their job.
                                        firm, said: "This is      "It does not
                     Her employer,      an important              automatically
                     Kirklees Council,  ruling, confirming        follow that a move
                     argued that it did that employers            to ban the wearing
                     not treat her less have a right to           of full-face veils in
                     favourably than it restrict what             other workplaces -
                     would have         employees wear in          for example, in an
                     treated any other  the workplace - as        office or factory,
                     employee who was long as they have           would be lawful,"
                     teaching with her  compelling                she added.
     Page 2
                                             Dismissal Explained

                       Wrongful vs. unfair                   implied term of the               here as tribunals will
                                                             contract; the employee            expect to see clear
                       dismissal                             must have left as a               evidence that the
                       •   Employer has the right at         consequence; and there            agreement is in fact
                           common law to                     shouldn’t be a significant        mutual.
                           terminate an employee’s           delay between the breach     Frustration
                           contract by giving proper         and the employee leaving
                           notice (or a payment in       •   a temporary (fixed-term)     •   An employment contract
                           lieu). Failure to give            contract comes to an             may be frustrated where
                           proper notice is a ‘              end without its renewal
10 % discount              wrongful dismissal ’ for
                                                                                              some event occurs which
                                                         •                                    was not envisaged by the
     on ALL                which an employee can                                              parties at the time the
                           sue for damages –                                                  contract was entered
 Lord and Co HR
                           fairness or otherwise is                                           into, and which makes
    services.              not an issue. Also there’s                                         the contract impossible
                           no qualifying period of       Other ways an                        to perform or radically
Contact us for more        employment or age limit.                                           different from that
                           If an employer wrongfully
    details on                                                                                originally contemplated.
                           dismisses an employee it      contract may end                     Frustration automatically
                           will normally lose the        •    Apart from dismissal, an        ends the contract –
   01625-869-814           benefit of any special             employment contract             there’s no dismissal in
                           clauses in the contract,           may end in a number of          law and so no need for
                           e.g. restrictive covenants.        other ways, including           notice to be given by
   or email us at      •   Unfair dismissal is a              resignation, mutual             either party.
                           creature of statute law.           agreement, and              •   Tribunals are however
       info@               Unfair dismissal may               frustration.                    VERY reluctant to find
                           occur, and commonly           Resignation                          that a contract has been
 lordandcohr.co.uk         does, even where there                                             frustrated. Two types of
                           is no breach of contract,
                                                         •   Once an employee has             event can amount to
   or log onto our         i.e. the employer has                                              frustration: a devastating
                                                             resigned and an employer
                           given proper notice. To                                            illness or a prison
information web site                                         has accepted that
                           complain of unfair                                                 sentence.
                                                             resignation, the employee
          at               dismissal, there are a
                           variety of conditions an
                                                             cannot unilaterally          •   Where prison is
        www.                                                 withdraw it.                     concerned, staff
                           employee has to meet
 lordandcohr.co.uk         (see ‘ Qualifying for         • Resignations do not have           sentenced to relatively
                           unfair dismissal ’).              to be in writing but its         short terms may be able
                                                             good practice to ask the         to argue that there is no
    Please state                                             employee to confirm a            frustration if the
                                                             resignation in writing.          employment contract
 NEWSLETTER08          What is a                         • Avoid taking words of              allows for other absences
                                                             resignation spoken in the        of a similar duration, e.g.
                       dismissal?                                                             for long-term sickness.
                           • For unfair dismissal            heat of the moment at
and we’ll instantly                                          face value. Allow time for       Where an employee has
                           purposes the law defines                                           been bailed, this will not
 give you 10 % off         dismissal as where:               the employee to calm
                                                             down.                            necessarily amount to a
any of our services.   •   an employee’s contract is                                          frustrating event – it is
  Offer lasts until        terminated with or            • Do not pressure an                 the conviction that is
                           without notice                    employee into resigning          important.
  April 27th 2007                                            as this may amount to an
                       •   the employee resigns                                           •   Where illness is
                                                             actual dismissal.
                           claiming that the                                                  concerned, it must be a
                           employer’s conduct has        Mutual agreement
                                                                                              really serious condition
                           left them no alternative –                                         (permanent incapacity)
                           usually called                •   The mutual consent of            with no prospect of
                           constructive dismissal.           both parties can bring an        recovery.
                           Here 3 elements must be           employment contract to
                           present: the employer             an end without there
                           must have breached                being a dismissal in law.
                           either an express or          •   But tread very carefully     Summary dismissal
                  Dismissal Explained…...
                                                                                                          Page 3

•   Summary dismissal is              Employers can stipulate            substantial reason.
    termination without               whatever notice they          1. Capability
    giving the required               want from the employee.
                                      If the employee doesn’t
    notice.                                                         •    A ‘capability’ dismissal
                                      give the required
•   This is still perfectly
                                      contractual notice, in
                                                                         relates ‘skill, aptitude,
                                                                                                          To support all
    possible, even with our                                              health or any other
                                      practice there is not a lot                                       Organisations to
    draconian laws, but it is                                            physical or mental
                                      the employer can do.
    something that should be                                             quality’.                         meet the new
    reserved for gross                                              • A poor sickness record           Employment Law
    misconduct.                                                          can justify dismissal but
                                                                                                        regulations, Lord
•   Defining gross                Qualifying for                         an employer will usually
    misconduct is difficult – a                                          be expected to show that        and Co HR are
                                  unfair dismissal
    good yardstick is whether                                            it tried to establish the           offering a
    the conduct fatally           •   The employee must                  employee’s medical
                                      actually have been                 condition and that
    undermines the
    relationship of trust and         dismissed (see ‘ What is a         alternatives to dismissal      consultation and
    confidence that exists            dismissal? ’)                      were considered. Note        assessment service.
    between the employer          •   An employee generally              that if the employee is
                                      needs 1 year’s continuous
                                                                                                      If you would like to
    and employee.                                                        ‘disabled’ under the
                                      employment to qualify for          Disability Discrimination    take up this service
•   Its impossible to list what
    amounts to gross                  the right not be unfairly          Act extra protections          please contact us
    misconduct in every case          dismissed (but see ‘               come into play, chiefly              now on
    but an employer’s                 Automatically unfair               the duty on the employer
                                      dismissals ’)                      to make ‘reasonable             01625-869-814 /
    disciplinary procedure
    should include examples       •   He or she must not be              adjustments’.                   07738-875-213,
    of the types of conduct           over the normal retiring      • If the dismissal is on the               info@
    that would normally               age for the business.              grounds of skill or
    warrant summary               •   He or she must actually            aptitude, the employer
    dismissal. Make it clear          be an employee and not             would be expected to             or log onto our
    that any list is not              for instance self-                 have given warnings,           information web
    exhaustive and illustrative       employed.                          stated the standards of               site at
    only.                                                                work required and the
                                                                         consequences of failing to            www.
                                                                         meet them. Considering        lordandcohr.co.uk
                                  Fair dismissal                         transfer to another job
Notice                            •   For a dismissal to be fair         might also be
    • The legal minimum               a tribunal will need               appropriate.
    periods of notice to              convincing of 2 things:       2. Conduct
    which an employee is              that the employer had a
    entitled are:                     fair reason to dismiss and    •   A ‘conduct’ dismissal is
•   1 week’s notice if he/she         that the employer acted           really one based on the
    has worked for between            reasonably.                       employee’s misconduct.
    1 month and 2 years           •   All employers must now        •   Employers must make
•   1 week for each year if           follow a statutory                clear to staff what they
    he/she has worked for             minimum procedure                 see as misconduct.
    between 2 and 12 years –          before dismissing an
    up to a maximum of 12             employee (see ‘
                                                                    •   Disciplinary rules and
    weeks’ notice if he/she                                             procedures must be
                                      Disciplinary and grievance
    has been employed for 12                                            clear, well known and
                                      procedures ’)
    years or more.                                                      applied consistently.
                                  •   There are 5 potentially           • The following
•                                     fair statutory reasons for        standards are essential
•   Contractual notice may            dismissal: capability or          where misconduct
    well be more than these           qualification; conduct;           dismissals are involved:
    legal minimum periods,            redundancy; statutory
                                      bar; and some other           •   the employer must have a
    but cannot be less.
Page 4
                              Dismissal Explained…….

             genuine and honest belief          for such a reason.                 minimum period of
             in the reason for             •    A common example is                service to qualify for
             dismissal                          that of a driver who has           protection – he or she is
         •   the employer must have             lost his licence through ill       protected from Day 1 of
             reasonable grounds in his          health or as a result of           employment if a dismissal
             mind for believing that            being banned, or a                 is made for one of the
             the offence was                    foreign national who did           following reasons:
             committed, and                     not have the necessary         •   because of pregnancy,
         •   the employer must carry            work permit.                       maternity, or for a reason
             out as fair and thorough      5. Some other substantial               connected with
             an investigation into the     reason (SOSR)                           pregnancy
             matter as is reasonable in                                        •   because an employee
             all the circumstances.        •   Not all dismissals can be           wanted to exercise his/
         •                                     fitted neatly into the              her rights to parental,
                                               categories of conduct,              paternity or adoption
         •    Dismissal for a single act
              of misconduct will only          capability, redundancy
              usually be fair in very          and statutory restriction.      •   because a business is
              serious cases.               •   Therefore the law                   being sold or transferred
         • Misconduct outside work             recognises another sort         •   on grounds of trade
              may be fair but only if it       of ‘catch-all’ category of          union membership or
              relates in some way to           ‘some other substantial             taking part in union
              work – the mere fact that        reason’.                            activities
              an employee has been         •   An SOSR reason can              •   because of participation
              charged with an offence          include dismissals for              in lawfully organised
              will not usually justify         such things as persistent           industrial action
              dismissal without an             short-term absenteeism,         •   because the employee
              investigation.                   expiry of a temporary               tried to enforce various
         3. Redundancy                         contract, reorganisation            legal rights, e.g. a claim
                                               of a business, customer             for unfair dismissal, rights
             • Dismissal for a                 pressure, imprisonment,             under the Working Time
             genuine redundancy will           lying on application                Regulations, a right to
             usually be regarded as fair       forms, or personality               minimum notice, etc.
             but there are                     conflicts
                                                                               •   because the employee
             circumstances which                                                   was carrying out their
             could make it unfair:                                                 function as a safety
         •   the selection process is      Automatically                           representative, employee
             flawed                                                                representative, pension
                                           unfair dismissals                       scheme trustee, union
         •   there is no consultation
             or warning prior to
                                           •   There are some                      official, workforce
                                               dismissals that are                 representative
             notice of dismissal
                                               automatically unfair, no
         •   there is no attempt to                                            •   for making what is called
                                               matter what reasons the
             seek suitable alternative                                             a ‘protected disclosure’
                                               employer gives.
             employment                                                            under the whistleblowing
                                           •   As the scope of                     law
         •                                     employment law
                                                                               •   for exercising the right to
         •    See ‘ Redundancy ’ for           continues to impose
                                                                                   be accompanied at a
              further information.             more restrictions on an
                                                                                   disciplinary or grievance
         4. Statutory restriction              employer’s right to
                                               dismiss, the list of these
                                               protected dismissals will       •   for alerting their
         •   Where an employer                                                     employer to health and
                                               continue to grow.
             would be breaking the                                                 safety risks
             law in employing                  • The importance of
             someone, then it is               this category of dismissals     •   for exercising rights
                                               is that an employee does            under the regulations on
             potentially fair to dismiss
                                               not usually need any                part-time workers or
       Page 5

                                                  Dismissal Explained……...

    fixed-term employees                      •    Step 1 – Write to the employee            formal warning or the taking of
•                                                  giving details of the circumstances       some other action by the employer
                                                   which may result in dismissal or          (e.g. demotion).
•   It is also automatically unfair to
    dismiss someone on the grounds of              disciplinary action.                  •   The right to be accompanied
    sex, marital status, gender               • Step 2 – Ask the employee to a               applies only to hearings/meetings
    reassignment, race, colour,                    meeting to discuss the matter (he         which may lead to serious action
    nationality, national or ethnic                or she has the right to be                being taken against the employee –
    origins, disability, sexual orientation        accompanied). After the meeting,          therefore purely investigatory
    or religion – and there is no upper            notify the employee of the decision       meetings whose aim is simply to
    limit on the amount of                         and offer a right of appeal.              gather information or establish
    compensation that can be awarded                                                         facts would not attract the right.
                                              • Step 3 – If the employee wants to
    in such cases.                                 appeal, hold a further meeting.       •   Where a companion cannot attend
                                                   Notify the employee of the final          the hearing on the date first
                                                   decision.                                 proposed, the worker can suggest
                                                                                             an alternative time and date which
Disciplinary and                              • The above 3-stage procedure can,             is reasonable and is within 5
                                                   where for instance an instant
grievance procedures                                                                         working days of the original date.
                                                   dismissal might be justifiable, be
•   Every employer must now follow a               shortened to a modified 2-stage       •   The companion can address the
    statutory minimum procedure                    procedure. But best advice is to          meeting to put or sum up the
    before dismissing an employee or               use the 3-stage procedure in all          worker’s case, respond on his or
    imposing some other form of                    cases if possible.                        her behalf, and confer with the
    disciplinary penalty (other than                                                         worker during the hearing – but he
                                              Grievance procedure
    issuing a warning or suspending on                                                       or she cannot answer questions on
    full pay).                                                                               the worker’s behalf.
                                              •    Step 1 – Employee writes to the
•   The disciplinary procedure applies             employer setting out the grievance.
    to most dismissals including those
    based on conduct, capability and          • Step 2 – Employee is asked to a
                                                   meeting with the employer to          Written statement of
    redundancy (except where a group
    of staff are being made redundant              discuss the matter. He or she has     employment particulars
    and it is being dealt with through             the right to be accompanied.          •    All new employees (including full-
    consultation with worker reps).                Employee should be notified of the         time, part-time and temporary
                                                   decision in writing afterwards.            staff) whose employment is for 1
•   If an employer dismisses without
    following the new procedure, the          • Step 3 – Employee is given the right          month or more are legally entitled
    resulting dismissal will be                    of appeal and, following an appeal         to a written statement specifying
    automatically unfair and a tribunal            meeting, must be notified of the           the principal terms and conditions
    can increase an employee’s                     final decision.                            of their employment.
    compensation by between 10% and           • Before making a tribunal claim           • This statement is NOT a contract
    50%. Conversely, if an employee                based on a grievance, an employee          of employment - but its often the
    fails to follow the required steps,            must, at least, have raised the            best evidence of the terms of the
    his or her compensation can also               grievance in writing with the              contract should a dispute arise.
    be reduced by the same                         employer and waited a further 28      • The written statement must issued
    percentages.                                   days. If he or she doesn’t do this,        within 2 months of the date when
•   Employers must note that following             the claim will automatically be            the employee started work (even if
    the new procedure does not, of                 rejected.                                  the employee resigns or is
    itself , necessarily make a dismissal     Right to be accompanied                         dismissed before the end of this 2-
    fair. The new procedures are in                                                           month period).
    addition to the existing concepts of      •   All workers have the right to be       If any of the particulars in the statement
    fairness so a tribunal will also look         accompanied by a fellow employee,      change, the employee must be informed
    at whether the employer acted                 a union official or a representative   in writing within 1 month.
    reasonably in all the circumstances,          of their choice during disciplinary
    taking into account its size and              and grievance hearings.
    administrative resources. It will         •   The right is triggered upon a
    also – and this is important – look           reasonable request from the
    at whether the employer followed              worker.
    the guidance in the ACAS Code of
    Practice Disciplinary and Grievance       •   A disciplinary or grievance hearing
    Procedures. Disciplinary procedure            is one which could result in a

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