ABG Employment Newsletter – March 2011

Employment law changes in April 2011

A number of changes in employment law will be taking effect in April 2011, including the following:-

From 6th April 2011 the default compulsory retirement age of 65 will be abolished, although there are transitional provisions under which an employee whose 65th birthday falls before 1st October 2011 can be compelled to retire if notice of intended retirement is issued by the employer before 6th April 2011.
A number of provisions in the Equality Act 2010 come into force including the provisions relating to positive action in recruitment and general public sector equality duties.
The right to additional paternity leave and paternity pay will be available to parents of babies due on or after 3rd April 2011.
From 3rd April 2011 there are increases in the rates of Statutory Maternity Pay, Statutory Paternity Pay and Statutory Adoption Pay to £128.73 per week and an increase in Statutory Sick Pay to £81.60 per week.
From 6th April 2011 there is a change in the procedure for taxing termination payments which affects the amount of tax which an employer must withhold when making a termination payment exceeding £30,000.

Dismissal and challenging previous warnings

In the case of Davies -v- Sandwell Metropolitan Borough Council the EAT has ruled that in unfair dismissal proceedings it is open to an employee to challenge the validity of a previous final warning even if the employee had not appealed against that warning when it was issued.

Previous case law had suggested that, if a previous warning had been issued in good faith and on apparently reasonable grounds, an employment tribunal should accept the validity of the warning when considering the employer’s subsequent decision to dismiss after taking the warning into account.

However, the ruling by the EAT in the Davies case means that it is now open to employees to challenge previous warnings. In this case a teacher had been issued with a final written warning following inappropriate conduct in a lesson. She appealed against the warning but subsequently withdrew her appeal on advice from her union that the punishment might be increased and she might be dismissed

Following further incidents the teacher was dismissed and the employers took into account the previous final warning which was still live.

The teacher then brought an unfair dismissal claim and challenged the validity of the previous warning. The employment tribunal decided that it was reasonable for the employers to take into account the previous warning as the teacher had not pursued her appeal. However, the EAT has allowed an appeal against that ruling on the basis that the warning could be challenged as invalid even though it had not been appealed against.

In another case, Sakharkar -v- Northern Foods Grocery Group Limited the EAT has held that a warning issued due to a genuine mistake under the employer’s absence policy rendered the employee’s subsequent dismissal under the policy unfair.

In this case the employer’s absence policy had four stages, the first three of which involved reviews and the fourth stage was dismissal. The employee was given a final warning on a third stage review and following further absences was then dismissed. His internal appeal was unsuccessful and he brought an unfair dismissal claim.

At the hearing of his claim it was established that the employer had made a mistake in calling him to a final review as he had insufficient absences to trigger the third stage. In these circumstances the EAT ruled that his dismissal was unfair because of the employer’s mistake. This was despite the fact that the employee had not appealed against the third stage warning.

Dismissal for sending offensive email from home computer

In the case of Gosden -v- Lifeline Project Limited a tribunal has ruled than an employee was fairly dismissed for sending an offensive email from his home computer to a colleague’s home computer. In this case the employee had received a chain email containing racist and sexist material which he forwarded outside working hours and from his home computer to the home computer of a colleague. The email was subsequently forwarded to another employee on his work PC and so entered the employer’s computer system.

Following investigations the employer concluded that the employee’s actions constituted a breach of its diversity and professional standards policies and dismissed the employee for gross misconduct.

His claim for unfair dismissal was rejected by the employment tribunal as the employee’s actions were in breach of the equal opportunities policy and were potentially damaging to the employer’s reputation.

Dismissal for religious or philosophical belief

Under the Religion or Belief Regulations it is unlawful to dismiss an employee on the grounds of the employee’s religious or philosophical belief. In the case of Hashman -v- Milton Park (Dorset) Limited a tribunal has ruled that an employee who had strongly held anti-fox hunting beliefs was protected by the Regulations. It was ruled that a genuine belief in the sanctity of life, which extended to a fervent belief in anti-fox hunting and anti hare coursing, constituted a philosophical belief for the purposes of the Regulations.

This does not mean that all opponents of fox hunting necessarily hold a philosophical belief, but the individual in this particular case was able to establish the strength of his views, being a lifelong animal rights activist and anti hunt campaigner.

The hearing of the substantive issue of whether he was actually dismissed on the grounds of his belief has yet to take place.

The comments in this note are of a general nature only. Full advice should be sought on any specific problems.

Christopher Gigg
[email protected]
+44 (0)115 934 3310

David Hardstaff
[email protected]
+44 (0)115 934 3323

Kathryn Meir
[email protected]
+44 (0)115 934 3308