How is 'long term' to be judged for the purposes of the definition of disability?

In December 2015 a Science Teacher, Mrs Nissa, was suffering with symptoms of fibromyalgia and in August 2016 she resigned from her post, as she was unable to continue to work. 

Mrs Nissa claimed for disability discrimination and said that her impairment had caused her to suffer substantial and long-term adverse effects in her ability to carry out day-to-day activities. Her employer disputed this.  

The tribunal noted that the medical diagnosis of ‘fibromyalgia’ was not made until 12th August 2016 and was subject to a caveat in October that her symptoms might improve now that she was no longer in employment and therefore could not have been likely for the effects to be long-term. If the claimant’s impairment had been long-term, it would be difficult for the tribunal to ascertain whether this was a work related disability.  

The Employment Appeal Tribunal highlighted that they had taken the wrong approach and it should consider whether this “it could well happen” and not if it were “likely”. In the SCA Packaging Ltd v Boyle case, the House of Lords, was asked to project forward to ascertain whether impairment is long-term. In Nissa’s case they were focussing on the diagnosis rather than the effects of the impairment, which was too narrow. They should have looked at the broader view of the evidence prior to 31st August 2016 and the reality of risk.  

The case was remitted to a different tribunal for reconsideration after it was decided that the “substantial adverse effect” stand failed to take into account relevant evidence from Mrs Nissa’s testimony regarding that her daily chores had become "extremely difficult, painful and exhausting". 

You can read more in the EAT’s guidance here: Nissa v Waverly Education Foundation.

For more information on all employment issues, call us on 01245 261883 or email contactus@littlerock.co.uk.

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Are employees getting to work late due to transport disruptions or the weather?

What should employers do if their employees can’t get into work because of transport disruptions or the weather?

Train services can be erratic especially when there are strikes or changes to the timetables. The hot weather will also affect the train lines and cables. 

There are certain obligations both on the employee and employer. The employee should make every effort to contact the employer to explain their problem and to indicate as best they can when they are likely to be able to get to work.  For small organisations absence of key employees can have a big impact if the absence is prolonged and unplanned.

If the employee fails to make any sort of contact to the employer to inform them that they are going to be absent, you can think about treating this as an unauthorised absence.

An employer may decide to exercise their discretion and pay employees for some or all the days they cannot make it into work, where their absence is beyond their control. Or you can allow them, if they can to work from home.

However, you must ensure all employees are treated in the same manner if they cannot get to work due to reasons outside of their control, so if in winter there is snow and people can’t get to work you must adopt the same approach.

A sensible way to approach their absence is to ask the employee to take the time that they are unable to work as holiday entitlement or take the extra days as unpaid leave. If that is not possible you should put together a practical solution to allow the employee to make up the extra time such as unpaid overtime over an agreed period i.e. if they can’t work for a day which is 8 hours and a normal working day is 8 hours then they work 1 extra unpaid hour for the next 8 working days.

Employers should review their holiday policies and make sure they are updated to cover these contingencies and to communicate to all employees what is expected in these circumstances and how the employees should act. 

For more information on all employment issues, call us on 01245 261883 or email contactus@littlerock.co.uk.

Little Rock’s employment law and HR monthly payment scheme starts from £99 per month – Contact us on 01245 261883.

Want to know how to dismiss an employee correctly?

If an employee has been employed for two years or more, and you want to dismiss them, you cannot just dismiss the employee without a fair reason and a fair process.  If you dismiss the employee without dealing with it through the correct process they might have a claim for unfair dismissal.  This is likely to cost you thousands of pounds if you do it wrong!

If the employee has been employed less than two years, they do not meet the qualifying period of two years to bring a claim for unfair dismissal. As long as it is a straightforward reason that you want to dismiss the employee, you can dismiss them more easily. 

Review the employee performance at the end of the probationary period and if they are not performing, have not made improvements or unsuitable for the business you may want to terminate their employment. 

Once you have decided to dismiss an employee and followed the correct process you should provide in writing when the employment will terminate. You do not need to give full written reasons as to why their employment has been terminated. 

If there are post-employment restrictions in the employment contract, you should set these out in the termination letter to highlight that they are still bound by the terms in their employment contract.

For more information on all employment issues, call us on 01245 261883

Little Rock’s employment law and HR monthly payment scheme starts from £99 per month – Contact us on 01245 261883

Christmas parties – enjoy them, but don’t get caught out!

Office parties can be a great way to reward your staff and thank them for their year’s work. However, if it takes place outside the workplace, the employer is still responsible for their employees. 

The law states that the employer may still be liable for incidents, including harassment, that takes place at work-related social events and could be at risk of a tribunal. 

More often than not these are alcohol related and although we do not want to be seen as a spoilsport, there are simple ways that we can reduce the amount consumed. The employer must also remind their employees that they should be mindful of their behaviour at these parties and the potential consequences for their actions. Some simple actions that can be put in place to avoid potential problems. 

6 simple things to do:- 

• Remind everyone of the policies – send a note around the day of the party so people know the company rules apply outside of the office too;
• Have a dress code – it helps keep things professional (probably best to avoid a ‘saucy Santa’ theme though!);
• Make sure there is plenty of food prior to drinking – to help soak up the alcohol;
• Ensure there are non-alcoholic options available – for those that don’t drink alcohol too;
• Hand out drink tokens – to help regulate consumption, once they have run out, they can buy their own; 
• Make sure everyone can get home – ensure the party finishes before the last train leaves, or arrange taxis / minibuses.

And finally, ensure that your employer’s liability and directors and office insurance are up to date. 

For more information on all employment issues, call us on 01245 261883.

Little Rock’s employment law and HR monthly payment scheme starts from £99 per month – Contact us on 01245 261883.

Have your employees got any holidays left?

It has recently become necessary to remind your employees that they have to use any unused holiday up by the end of the year. 

Previously, if the employee hadn’t taken their holiday, they would lose it and they would not be able to carry it over to the next year. However, as the case shows below, you will now need to give the employee the opportunity to use it. 

Recently at the Court of Justice and European Union the case for Max-Planck-Gesellschaft v Shimizu, asked if a employee doesn't apply for the minimum annual leave due under EU law during a leave year, the right to have that leave lost at the end of the year, unless the employer diligently gives the worker the opportunity to take it. 

Mr Shimizu who worked at the Max Planck Institute, a private scientific support institution in Germany, until 2013, brought a claim for unpaid holiday from 2011 and 2012. 

Under German law, he lost the right to carry over untaken leave from one year to the next. The German Federal Labour Court referred two questions arising to the CJEU.

The CJEU held that the Working Time Directive requires that if a worker does not exercise the right to paid annual leave in any year, leave should not automatically be lost unless the employer has 'diligently' brought it to the worker's attention that leave will be lost, the burden of proof falling on the employer. 

Employers need not require employees to take leave, but must inform them accurately and in good time of the right. If your holiday leave ends on 31 December 2018, it is important that you remind your employees that they have to take the remainder of their annual leave entitlement or they will lose it. 

For more information on all employment issues, call us on 01245 261883.

Little Rock’s employment law and HR monthly payment scheme starts from £99 per month – Contact us on 01245 261883.

National Minimum Wage increase in April 2018

Year                             25 and over     21 to 24           18 to 20           under 18         Apprentice

April 2017                    £7.50               £7.05               £5.60               £4.05               £3.50

April 2018                    £7.83               £7.38               £5.90               £4.20               £3.70  

In April the increase to national minimum wage comes into effect.  Employers should make changes to employees salary increase and plan for the increase now.

Does your holiday year run from 1st April – 31st March?

If so, the information below is important to you as an employer:

The way in which the 2018 Easter break falls means that in England and Wales the Easter bank holidays will straddle both March and April. In 2018 Good Friday falls on 30^th March and Easter Monday falls on 2^nd April. The following year Good Friday is on 19^th April 2019 whilst Easter Monday is on 22^nd April 2019.

Therefore, if your holiday year runs from April – March employees would appear to lose out. This is because there is no Good Friday bank holiday within a holiday year running from 1^st April 2018 to 31^st March 2019.

The statutory 28-day entitlement is a legal minimum and as the employer you cannot negotiate out of it, other than by an agreement with the workforce to carry forward up to eight days holiday into the following year. If you are an employer in this position it is advised that you top up the employee’s holiday entitlement for the leave year running 1^st April 2018 – 31^st March 2019 as this will ensure the employee receives their 28-day statutory entitlement. This situation will occur again but not until 2024!