FJG Employ....

Immigration in the sincerest form of flattery

Immigration and Employment law get the big gold stars for the being the 2 fastest moving areas of law at the present time.  They also get big gold stars for being the 2 most contentious.

 

It is always useful to know where you stand as an employer especially when an immigration issue comes into play.

 

The recent case of Okuoimose v City Facilities concerned the fear by the employer that the contract between the company and the employee was illegal.  The point here should have been, says the EAT, whether the contract was IN FACT illegal.  Not concern that it might be.  Not fear for the consequences if it was.  Not because it thought it was acting reasonably.

 

The Claimant was married to an EEA National, and as such, was a completely legal member of the work force.  She even had a stamp in her passport saying the same.  However, when the stamp expired, the employer became worried and suspended the claimant from work, without pay.  When a letter from the Border Agency finally arrived and confirmed that the Claimant had retained her right to work all along she filed a claim for unlawful deduction of wages, which was successful.

 

The success of the claim came at the hands of the EAT. They overturned the ET's decision that the contract had been illegal and on that basis the Respondent had no obligation to restore the wages docked.  However, the EAT held that just because a stamp had expired in the Claimant's passport did not alter her status a valid worker in the UK, therefore the deducted wages were repaid.

 

Hope of ill gain is the beginning of loss

Mitigation of loss is an important concept in employment claims. The employee/claimant is under a duty to take reasonable steps to reduce his/her loss by gaining alternative employment as soon as possible. Any failure to mitigate will limit loss of earnings awarded. It is becoming more of a hot topic, I think because jobs are few and far between and there is a strong onus on claimants to get anything job wise to "mitigate their loss".  Unemployed claimants cannot be choosy and need to demonstrate that their claim is not just about a payout.

It is interesting therefore, that the recent case of Debique v Ministry of defence turns on this very issue.  Debique was a serving soldier and a single mother and, quite understandably, found it tricky to balance the 2.  Following a difference of opinion regarding her difficulties reconciling her motherhood, and job requirements Debique handed in her notice and filed a claim.

Now, here comes the science bit, during her leave Debique was offered a role within the Army that would have addressed her childcare problems and arguably would have put an end to the claim.  Needless to say she did not take this post.  It was later found that because she did not take this, or any other work, she was denied compensation for loss of earnings.  Completely.

Again, needless to say, she appealed and the decision stood.  The EAT decided that the test on mitigation of loss was correctly applied by the ET.  It could be argued, as it was in the case from which the test comes, that the claimant could not have accepted any role put forward by the respondent due to the loss of trust and confidence in the employer. Further, that this offer of a job is either meant to kill the claim, or provide a mechanism by which it reduces the potential award.  Possibly, agrees the tribunal, but hard cheese.  A job is a job and in these tough times, take it. 

A fool and his money are lucky enough to get together in the first place

With unemployment at an unfortunate level, some people are offering to do volunteer work, to keep them busy, to 'give something back' or to pad out their CV whilst they are treading water in the job market.

 

This, overall, has to be a good thing, but it can lead to anomalous working conditions and confusion as to obligations- from either party.

 

The case of Breakell v Shropshire Army Cadet Force staked out the territory regarding volunteers and the Disability Discrimination Act 1995.  This case is now the authority to suggest that a paid volunteer is not an 'employee' under the act if there is no 'mutuality of obligation'.  Sounds great, but what does that mean?

 

The case turned on the fact that the volunteer did not have to take work and the Cadet Force was under no obligation to provide work, although once at work the volunteer did have to follow set rules.  In addition, the payment that the volunteer was to receive was only as a gesture to compensate said volunteer against wages potentially lost by volunteering.  There was also a cap on the days the volunteer was able to claim (28 for the year) and there was expectation to be paid should there be, for example, cut backs.

 

Any case is useful when it provides a definition but unfortunately this case stopped short of considering employee status under the Employment Rights Act 1996, as this was not specifically brought up by the claim.  Therefore, until then, it is wise to look into a neat volunteer agreement to ensure all the parties know where they stand and to look into the mutuality of obligation as that, so far, seems to be the key.

The shortest words of "yes" and "no" are those which require the most thought

A company, which had intended to remove some staff due to financial restraints, sent a letter to am employee stating that her employment was to end on 31st December and was to restart on the 1st January under an alternative agreement.  The terms of this alternative agreement had not, in fact, been agreed by the parties and as such the employee chose not to accept the potential alternative and considered herself dismissed. Dismissed unfairly. 

 

The knee jerk reaction of the company was to take back the notification, however, as the general rule about unambiguous words of dismissal is that they can be taken at face value without the need for any analysis of the surrounding circumstances, the employee argued she had taken that her employment ended on the last day of the year and that was most certainly that.  

 

Initially it seemed that the ET were allowing the retraction, despite the standard position.  The ET dismissed the employee's claim of unfair dismissal, with the reasoning that she had resigned.

 

Enter the EAT.  For the EAT and the Court of Appeal after that it was clear that the company had intended to make cut backs in the number of their staff.  The wording of the letter which contained her dismissal was clear and unambiguous and as such there was no way that a potential exception could sneak in and undo the removal from office.  Employee 1 Company 0.

And finally Winter, with its bitin', whinin' wind, and all the land be mantled with snow

With the snow warnings coming thick and fast it can't be long before we are battling the elements once more.  Although the sight of newly fallen snow can be exciting and beautiful, it can also be a potentially confusing time for employers and employees with regards to where they stand should the snow prevent them from actually arriving at work.

Here are some common questions that you may need answered, should you have more then do feel free to give us a call. 

Do you have to pay staff who are unable to get into work due to snow and difficult transport conditions?

Employees must attend work unless they are sick, on holiday or on maternity leave etc.  Therefore the responsibility is on the employee to get into work, even on days with adverse weather conditions.  Consequently, one line of thought suggests that if some employees cannot make it in then their absence should be treated as unauthorised, and consequently not be paid. 

However, the problem comes when the employee's normal mode of transport is out of action.  You need to encourage employees to look into alternative means of transport and be properly prepared in case their first choice is unavailable.  It is key though that employees do not feel that they should risk their safety to get into work.  At this point it may be worthwhile looking into options such as working from home during the bad weather, and preparing now for implementation of such a strategy. For example, a working from home policy in your staff handbook would be useful and maybe consideration of an 'adverse weather policy' with details of who to contact when an employee may not be able to make it in etc. It should be made clear to those that do elect to work from home under the policy that this is a privilege not a right and that the employer will, if necessary, monitor output in those circumstances..

Working from home is always the first thought, but with some businesses this just isn't an option, for example the retail sector, so what then?  You could pick one of the following:

- Any time off work in these circumstances will be unpaid (if you are planning to rely on this one, you will be relying (ideally) on a contractual provision); or

- Employees will be paid but they will have to make the time up at a later date; or

- Employees can request to take time off as paid annual leave or as unpaid time off for dependant's leave (more on this later).

In reality not many contracts will state that employees who cannot get into work because of the weather will lose a day's pay, so do be careful.  In addition, employees have statutory protection against unauthorised deduction of wages which could come into play should you deduct wages for a 'no show'.  Of course the rebuttal will be there was no work done so no pay was earned, but it's better to avoid being drawn into disproportionately expensive litigation over such points.

Finally, you need to assess whether paying employees is in your best interests as a business.  It may seem an onerous financial burden but it could be worth it due to the boost it will give to your employees' morale.  This type of gesture is normally gratefully received, especially before or just after Christmas. However, when some have made considerable efforts to get to work and others are watching Jeremy Kyle at home and receiving the same pay, this may generate resentment and act as a disincentive to show up, especially if those who do come in have to work extra hard to make up for the shortfall.  You may therefore want to consider some sort of reward for those who did make the (sometimes superhuman) effort to attend work. Perhaps a blend of half pay to those that don't with a contractual provision to this effect, and 1.5 times pay for those that do may strike the right balance. Above all though, carefully monitor the ongoing weather situation and let employees leave when appropriate in the afternoons to avoid any further struggle on their way home in the dark.

Can you require an employee who cannot get into the office to take a day's holiday?

On the whole, no.  Unless the employee has an express right in their contract for you to do so you cannot direct an employee to take holiday without their consent.

What about children?  What if schools are closed or the childcare facility is unavailable?

There are statutory provisions that allow parents to take time off when there is an 'unexpected disruption to childcare'.  Further, parents are protected from suffering a detriment for doing so.

Strictly speaking, school closures are not the same as an 'unexpected disruption to childcare' but if the schools are closed and alternative arrangements cannot be made, it could be classed as an emergency situation and, as such, employees would be entitled to the statutory protection.

Again, strictly speaking, this day would be unpaid but not all employers will take this approach. The key thing to remember is that you will need to be consistent in your approach to this policy and any policies you implement parallel for non-parent employees.?

What if an employee could have made it into work but chooses not to?

If you genuinely/reasonably believe that an employee is using the bad weather as an excuse for absence (or lateness) it could be a disciplinary matter. 

One-off occurrences are possibly a waste of your resources but you may want to look into any persistent and possibly flagrant abuse of the 'weather as excuse' behaviour. Follow your disciplinary procedures to make sure it's all above board.  As the weather starts to get better and travelling starts to get easier you may want to issue a memo that details that any more time off will need to be taken as holiday.  You may find people manage quite swiftly to find the office again.

What if you are forced to close the office due to the severe weather conditions?

If you make the decision to shut your business because of the weather, or other unforeseen event, and there is no work available for willing and able employees, you cannot usually withhold pay.  If you choose to do so regardless,  employees can exercise their rights regarding unlawful deductions of wages under the Employment Rights Act..

The only real option if you do not wish to pay under these circumstances, is for you is to include an 'un-paid lay off' clause in your employee's contracts, or if the employees expressly consent to being laid off without pay.

Do take further advice though before going down this route as the rules surrounding lay-off clauses and statutory guarantee payments are complicated.   

If we haven't answered all your questions then we are happy to hear from you at:

Fisher Jones Greenwood LLP

Severalls Business Park

01206 835 230

Judge a man by his questions rather than his answers

Statutory questionnaires are recommended before commencing a claim. With their use you are able to put your case to the employer and ask questions.  Specifically they may be able to help you identify the facts in dispute, identify strengths and weaknesses in your claim, gather evidence and decide whether you really want to continue with proceedings or not.  The answers, therefore, of these questionnaires are quite important and it is interest what, in any, inference can be drawn the answers received.

 

Well, if you were wondering what the parameters of such an inference were, fret no longer.  The honourable Justice Underhill, no less, has issued that if answers to questionnaires are 'less than full' it would not necessarily follow that they were evasive nor justify an implication of victimisation. He emphasised that the process of deciding whether an inference should be drawn in the case of an evasive or equivocal answer is the same as that to be applied in any case regarding inferences of discriminatory behaviour - does the act or omission tend to show that the respondent acted in the way complained of.  Well, quite.  What if you don't know the answer or cannot quite remember what you did/said in a particular instance.

Statutory questionnaires do not commit you to taking your claim to court, they simply refine the reasons why you want to go and the relative strengths of those reasons. Any reply you get will help you to decide whether the treatment you received was discriminatory or whether there is some other reason for it.  Questionnaires are an effective method of helping you to identify the overall strengths and weaknesses of your claim, and pin point each aspect that you can claim for. Finally, as we've seen, the service provider's answers to the questionnaire can be used as evidence in court. But obviously with the brand new parameters above.

If you never try, you'll never know what you are capable of

An employee was summarily dismissed from employment after it was discovered that  €1.8 billion had disappeared from the employer's German bank account, without him knowing. Gross negligence anyone?

 

However, the employee was dismissed for 'conduct' at the time but the reason given in the ET3 was 'capability'.  It was argued by the employee that the Tribunal cannot have dismissed his claim as the employer was inconsistent with what he was actually fired for.

 

The crux of their appeal was based on the assertion that the Employment Tribunal itself had mislabelled the case a 'misconduct' case and consequently had misdirected itself when reaching a decision. They further emphasised that if they had directed themselves correctly i.e. to follow a capability dismissal they would see that the manner in which this was done by the employer was far from correct and the decision would therefore have to be unfair dismissal. Wow.  I think you'll agree a gutsy line of attack by counsel.

 

Despite this valiant, and keen eyed, approach the appeal failed. The EAT found that a tribunal was entitled to make its decision on the basis of what it considered to be the real reason for dismissal, provided the claimant was not prejudiced by this approach, and clearly the EAT did not consider these circumstances to be prejudicial.

 

Nice try though.