Employment bulletin December 2013
In our final bulletin of 2013, we consider parents’ proposed rights and a variety of cases. We will discuss what’s in store for 2014 at our January breakfast briefing.
14 January 2014 – Breakfast briefing
Ian Machray will be finding his crystal ball again and providing a snapshot of the key employment law issues that lie ahead in 2014. Croissants will be served at 8.00am for an 8.30am start at our office. If you have not already booked your place, please email Sarah Walker.
Since April 2011, fathers and mothers have been able to “share” the 52 weeks’ maternity leave, in the sense that if the mother returns to work before she uses her full maternity leave entitlement, the father/partner can take the balance of the latter 26 weeks as additional paternity leave.
However, from April 2015, the Government proposes a fully flexible system of parental leave, in which a new mother will be able to trigger flexible leave at any point after the first two weeks’ compulsory maternity leave. Parents will be able to share the remaining 50 weeks between them as they like, and so leave could be taken in turns, in different blocks, or at the same time.
Further details have just been released as to how this arrangement would work in practice. The couple will have to give their respective employers an indicative plan of how they wish to take their leave when they tell their employers that they would like to take parental leave. Controversially, the parents will have the right to make 2 changes to that plan which some employers, particularly small ones, may find difficult to accommodate.
The right to return to the same or similar job will only apply to those who take up to 26 weeks of leave (whether maternity, paternity, adoption or shared parental leave and whether continuous or in various blocks).
As you may have seen in the press, 73 year old John McCririck lost his claim for age discrimination against Channel 4. Mr McCririck is a high profile racing pundit who worked for Channel 4 from 1984 until he was told that his services were no longer needed in October 2012.
The Tribunal watched extracts from various programmes in which Mr McCririck had appeared including Channel 4 Racing, Celebrity Big Brother and Celebrity Wife Swap. They found him to be “overbearing and sexist”. The Tribunal concluded that Mr McCririck had not been treated fairly as he had not been warned that his attitude and presentation style was not appropriate. However, importantly the Tribunal noted that it could not draw an inference of discrimination simply from unfair or unreasonable treatment. Such an inference could only be drawn if others of a different age had been treated differently. However, none of the presenters had been told that there was going to be a new look to the programme so there wasn’t a difference in treatment. Nor could the Tribunal conclude that there was discrimination simply because all the reporters aged 50 or over were dismissed.
However, that fact that all reporters over 50 were no longer used and the fact that the 42 year old Ms Stevenson was retained were sufficient for the Tribunal to say that Channel 4 had to show that Mr McCririck’s dismissal was justified (technically speaking – being a proportionate means of achieving a legitimate aim). The Tribunal concluded that the aim was to bring horse-racing to a wider audience than previously and accepted that this was a legitimate aim for Channel 4. The Tribunal accepted that Mr McCririck’s dismissal was proportionate as engaging him as a celebrity presenter would have been counter-productive given his style and particularly his opinions.
It is worth noting that the Tribunal was highly critical of the fact that equality training was not mandatory and that HR advice had not been sought at an early stage in the selection process. It is also clear that Channel 4 made life difficult for itself by referring to “younger viewers” and “younger presenters” in their pitch documentation. Whenever you write an email, send a text or prepare a formal document it’s worth asking yourself if you would mind a Tribunal seeing it!
A recent case reminds employees of the risks of signing contracts containing long notice periods with a garden leave provision then trying to claim they are unreasonable. The employee was a stockbroker who had resigned to join a competitor. His employer immediately placed him on garden leave and wrote to “his” clients and introduced a new stockbroker to them. The court accepted that this was an entirely reasonable course of action for the employer to take.
The employee claimed constructive dismissal based on his employer’s refusal to allow him access to a colleague’s notes of brokers’ opinions and market research during his garden leave. The court concluded that he was trying to engineer a claim for constructive dismissal as a means of being released from his garden leave but that there was in fact no breach of contract by his employer.
When considering the injunction, the court commented that garden leave provisions are common in senior employees’ contracts. However, when they are used in conjunction with restrictive covenants the court has to consider if the garden leave period is acting as a restraint of trade. Garden leave clauses can be abused by employers even if employees have agreed to them. Employers who ask the court for an injunction to enforce a garden leave clause will have to show that they are reasonably necessary to protect the employer’s legitimate business interests just as would be the case when seeking to enforce restrictive covenants. In this business there was only formal contact with clients a few times a year and meetings with clients were arranged when convenient to the client not the new stockbroker. The effect of any adjustments to a portfolio would take at least 6 months to show. Therefore, the court was persuaded that it would realistically take the employer many months to cement a new stockbroker into these client relationships. The court looked at any harm which the employee would suffer from being kept on garden leave – there would be none financially speaking as he would remain on full pay. The court did not accept his argument that his skills would atrophy as he would have time while on garden leave to keep up with the market and maintain his market knowledge through publically available information. Therefore, the court upheld the 12 month injunction enforcing the garden leave period and preventing the employee starting work for his new employer.
Employers should remember that garden leave clauses can be extremely useful in contracts of employment especially for senior employees and those with extensive client contact. However, an employer does not have an implied right to put an employee on garden leave so if the business needs this protection it needs to be expressly included in the employment contract.
The time limit for bringing Tribunal claims is short – generally three months. The Tribunal has a discretion to hear claims which are submitted out of time; the test for exercising that discretion varies depending on the type of claim. There is a wider discretion in discrimination claims. The test for an unfair dismissal claim is that a Tribunal can only hear a claim which was presented out of time if it was not “reasonably practicable” for the employee to submit it within the 3 month period and it was submitted within a “reasonable” period after the end of the 3 months.
A recent case shows that employers should be cautious about assuming they will not be facing a claim once the 3 months has passed. The employee had participated in a grievance process (including submitting a detailed reply to the grievance outcome and attending a grievance and disciplinary appeal meeting which lasted more than 3 hours) and had then emailed the employer setting out his complaint in a detailed, reasoned and coherent fashion. All of these events took place within 3 months of his dismissal. However, his mental health then worsen to such an extent that he “was not functioning at all”. He managed to submit his claim 6 weeks after the time limit had expired and his claim was accepted by the Tribunal. It is interesting that there was no medical evidence presented to the Tribunal – simply the employee’s own account. The Tribunal assessed him as a credible witness and clearly if his report of his condition was accurate he was not in a state to be able to submit a claim within time. From the employer’s perspective it is easy to see why the employee would have appeared to be functioning normally but the employer did not have the full picture until it heard the employee’s evidence to the Tribunal.
In our April Bulletin we looked at the case brought against the administrators of Crystal Palace Football Club. You may remember that these dismissals were held to be unfair because the EAT concluded that redundancies arose directly out of a desire to make the business more attractive for sale and therefore in breach of TUPE.
The Court of Appeal has now considered the facts and disagreed with the EAT. The Court agreed that the reason for the dismissals (of non-playing staff) was to keep the Club alive as a going concern. There was a difference between the reasons for the dismissals (reducing the wage bill to allow the business to continue) and the ultimate objective (selling the business in due course). The reason for the dismissals was economic and it entailed changes in the workforce so it was an ETO reason which justified the dismissals.
There are bound to be many more cases which argue over whether the reason for dismissals was to continue the running of the business (making the dismissals potentially fair) or to make the business more attractive to a purchaser (in which case the dismissals will be automatically unfair).