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Employment Law Newsletter - April 2018


In this issue ...

  Workplace romances   Must you pay fathers on shared parental leave the same pay as women on maternity leave?  
  Will employment tribunals admit secretly record disciplinary hearings?   Dismissing employees with mental health conditions  
  If you dismiss an employee by letter, when does their notice period begin?   Misconceptions about sick pay  

Workplace romances

High profile reports of historic sexual harassment in Hollywood and Parliament will make employees increasingly willing to raise such claims at work.

However, many of us met our partner at work or have had an office romance, which is not surprising given how much time we spend at work or socialising with work colleagues. But where do we now stand? Can you ask a colleague on a date or compliment their appearance?

It depends. This is often the answer in employment law. Context is everything. Asking a colleague at the same level to join you on a date is unlikely to be considered sexual harassment even if they say no, providing the rejection is accepted with good grace rather than persisting with unwanted invitations. Similarly, a one-off compliment from one colleague to another who knows them well, is unlikely to constitute harassment unless it is intrusive or sexual in nature. But if in doubt, say nothing.

As an employer, you only wish to control your employees' actions at work or when they affect the business.

The problem. Workplace relationships can lead to complaints of favouritism, reduce morale or lead to bullying or sexual harassment. Blanket bans are unrealistic and will only discourage people from being open with you. So create a policy or develop guidelines that set out your position on personal relationships at work. Balance employees' right to a private life against the company's right to protect its business interests

What your policy should say.

It is fine for colleagues to have a personal relationship as long as it doesn't negatively affect the workplace.

Employees are encouraged to declare any relationship in confidence to a senior manager or HR when it is appropriate to do so.

Intimate behaviour such as kissing, inappropriate messages using work e-mail or sexual discussions are prohibited.

Employees who discuss confidential information with their partner may be disciplined.

There is a right to transfer employees where there is a conflict of interest. This right should also be placed in contracts of employment if you wish to exercise it.


Will employment tribunals admit secretly record disciplinary hearings?

Tribunals have a wide discretion to admit covert recordings as evidence and will generally hear them if they are relevant to the case. Although the Employment Appeal Tribunal (EAT) has commented that the practice of making covert recordings is distasteful, that is a separate consideration to their admissibility as evidence.

In Fleming v East of England Ambulance Service NHS Trust the EAT allowed a claimant to rely on a covert recording of a disciplinary panel's private deliberations, but not its legally privileged discussions with the Trust's lawyer, because the tribunal couldn't assess the decision to dismiss without listening to it. So how do you protect yourself?

What you should do

Hold confidential discussions during disciplinary or grievance hearings in a different room, out of earshot and out of recording range.

Warn managers about 'letting off steam' or making inappropriate comments during adjournments.

Warn employees if covertly recording meetings will constitute misconduct but be aware that subject to the reason for the recording, it may constitute victimisation under the Equality Act 2010.


If you dismiss an employee by letter, when does their notice period begin?

Is it when the letter arrives, when they read it or when they could have read it? The Supreme Court wrestled with this question in Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood. The trust sent Mrs Haywood written notice of redundancy by recorded delivery on 20th April 2011 but she didn't read it until she returned from an approved holiday in Egypt. The court decided that notice began on 27th April 2011 when she received the letter on her return from holiday not when it had been delivered. The date was significant and affected Mrs Haywood's pension.

Where an employee is dismissed by letter, the effective date of termination is the date on which they read the letter or had a reasonable opportunity to do so. So how do you avoid uncertainty?

What you should do

Consider including an express term in the contract of employment that notice runs from a particular date after the dismissal letter is sent by recorded delivery.

Where possible, deliver the dismissal letter by hand to the employee at work or at their home.

If you cannot deliver by hand then e-mail the letter to their known e-mail address and request a read receipt.


Must you pay fathers on shared parental leave the same pay as women on maternity leave?

In Capita Customer Management Ltd v Ali and another we have our first appellate decision on the issue. Telefonica paid women on maternity leave 14 weeks' enhanced maternity pay but men on shared parental leave were only paid two weeks' full pay followed by statutory parental pay. The EAT said that the Pregnant Workers Directive was to encourage improvements in the safety and health of women who have recently given birth. The Directive permitted at least 14 weeks' maternity leave.

This employer's scheme matched the 14 weeks provided by the Directive. Be mindful that the courts have not considered schemes which allow for more than 14 weeks' leave.


Dismissing employees with mental health conditions

The problem. Mental health conditions can complicate what may seem to be a straightforward case of gross misconduct if an employee attributes their conduct to their illness or to medication they take to deal with their illness. An employee may claim that they lost their temper or suffered a lapse in judgment because of mental illness. So how do you avoid the legal pitfalls?

What you should do

Investigate the matter thoroughly to identify whether there is a causal link between the blameworthy conduct and the illness or something linked to the illness such as medication.

Obtain a medical report.

Balance the findings of the report with any other mitigating factors.

Consider the medical evidence with the degree of provocation, the employee's previous disciplinary record and conduct and the seriousness of the misconduct in question.


Misconceptions about sick pay

A recent survey by Direct Line Insurance revealed that only 4% of employees know how much statutory sick pay they should be paid. Here are three common misconceptions:

Automatic entitlement to full pay

There is no statutory right to be paid full pay for time off sick. The law provides for statutory sick pay (SSP) of up to 28 weeks. It is only payable from the fourth day of qualifying absence and the current weekly rate is £92.05.

Notice pay

What notice must you pay an employee if their contract of employment comes to an end while they are signed off as unwell and in receipt of sick pay?

The Employment Rights Act 1996 provides for employees to be paid in full for the statutory minimum notice period in cases where they cannot work owing to ill health. The minimum notice for employees with less than two years of continuous service is one week. For employees with more than two years of continuous service it is at least one week's notice for each continuous year worked, subject to a cap of 12 weeks.

But the act has an anomaly. If an employee's contractual period of notice exceeds the statutory entitlement by at least one week, the right to full pay does not apply and instead the employee is only entitled to SSP.

So, if an employee's contract of employment states that they are entitled to five weeks' notice but the statutory minimum is three weeks, there is no obligation to pay the employee normal pay while sick during their notice period.

Conversely if they are only entitled to statutory notice they are entitled to full pay. Of course, if employees exhaust their SSP they are not entitled to any pay.

Health Insurance

Some employers provide permanent health insurance (PHI), which pays employees their salary (in whole or in part) when they are unable to work owing to sickness absence; their condition must meet certain qualifying criteria prescribed by the insurer.

An employee's entitlements, rights and qualification requirements will obviously depend upon each specific policy. However, for an employee to benefit from the salary cover, most PHI schemes require that the employee remain in employment.

So, what happens if an employee's contract of employment is terminated when they are either entitled to receive or in receipt of PHI?

Ultimately, they could lose their entitlement to receive a benefit under the insurance scheme.

However, as most schemes are put in place specifically to ensure employees receive some protection if unwell, this could give rise to a potential breach of contract claim if the employee argues they have been deprived of the pay out from a claim.

If their condition is serious or long lasting, this may have been paid over many years and give rise to a potentially expensive lawsuit. This is a complex area of law so always take advice before dismissing in these circumstances.


Just a quick reminder that Collinson Grant does a lot more than advise clients in all sorts of organisations about the complexities, constraints and opportunities presented by employment law. Our consultants also provide support regularly on: employee relations, reward, restructuring, recruitment, leadership and HR strategy. And we have well-honed skills in operations: managing and reducing costs, organisational design, process improvement, procurement and managerial controls. Do ask if you would like to know more.


If you would like to discuss this or any other issue facing your organisation please speak to your usual contact at Collinson Grant or Peter Howarth on 0161 703 5600

Although care has been taken in the preparation of this Newsletter, Collinson Grant cannot accept responsibility for errors, omissions or advice given. Readers should note that only Acts of Parliament and Statutory Instruments have the force of law and only the courts can authoritatively interpret the law.