Key points regarding parental leave are:
• Unpaid Parental Leave entitlement applies equally to men and women
• The period of parental leave has increased from 13 to 18 weeks
• To qualify an employee must have been continuously employed for one year when the leave is to be taken
• To qualify an employee must have, or expect to have responsibility for a child
• The entitlement also applies to guardians and adopters
• The entitlement may only be used up to a child’s 5th birthday, unless the child is disabled
• Employees cannot take all 18 weeks in one go and can only take a maximum of 4 weeks consecutively per year

Statutory entitlement for employees to take unpaid parental leave applies equally to both parents. To qualify for parental leave an employee must, at the time the leave is to be taken have been continuously employed for one year and have, or expect to have, responsibility for a child. This also includes guardians and adopters. It is just as well you resisted saying that such leave is really for women as it shows some discriminatory bias.

Currently, unless the child is in receipt of disability living allowance, the entitlement may only be used up to the child’s 5th birthday so you may have been right to refuse because the child is seven. However if they are that sick then they may be disabled and therefore the parents would be entitled.
You are right to focus on the business needs which make the timing difficult for you. However the operation is clearly serious so you need to consider alternatives such as recruiting a temporary employee or agency person. This will show your refusal is proportionate if you cannot agree a solution. I would recommend that you meet the employee again and apologise for the error in respect of the length of entitlement and seek more information on whether the child is classified as being disabled. Whether they qualify or not you may still seek to reach some sort of workable solution. It is important to note that employees cannot take their legal entitlement of 18 weeks all in one go, but are limited to 4 weeks consecutively per year.

1. You obtained information on his unauthorised journey by deception
2. You moved straight to disciplinary action before investigating

Your deceit potentially makes his dismissal unfair because you have tricked him into his conduct. Also you have no proof that it is not the first time he has done this as:

• one day of ‘covert’ tracking him is not a lot of time to asses his conduct
• minor ‘deviations’ might be a one off

It would have been better to monitor over a few days at least to establish a pattern unless his ‘deviations’ were really bad.

Tribunals are all about emotion and they may not be sympathetic to your “sting operation” ie lying tactics, especially if he is both a long service employee and this is the first time he has done something wrong. They may conclude that your actions and subsequent dismissal was not the acts of a reasonable employer.

You ought to have a two stage process in place, with an investigation before reaching a conclusion. The investigation may show that there was a reasonably good explanation e.g. he was stopping for a newspaper or going for fuel etc. So the investigating manager (preferably not the same as the disciplining manager) needs to look further into the matter before reaching a conclusion as to whether disciplinary action should be considered or not.

You have two options :

1. If it is not too late you could monitor for a bit longer, then invite him to an investigation meeting. Depending on the severity of his actions and his reaction you might then consider inviting him to a disciplinary hearing, with dismissal as a serious option. Bear in mind you will still have an uphill battle convincing a Tribunal that you are not just as dishonest as he is. Tribunals are subject to lots of case law but they have a way of doing what they think is right and that often comes down to finding for the party they find the most likeable and believable.

2. If he is already dismissed then you either need to re-instate on appeal (with a final written warning) or make sure that everything else is done properly at appeal to increase your chances of defending your actions should the employee decide not to go quietly!

The guidance provided in this article is just that – guidance. It is not legal advice as every case depends upon the facts. The law is forever changing and you need to keep up with these changes to ensure that you are behaving in the correct way.

The risk of doing nothing is that, apart from the damage to your reputation and employee morale, you could face claims/grievances relating to the business allowing ‘Cyber-bullying’ – i.e. harassment conducted through social media channels and racial harassment.

Case law is emerging on employees being disciplined for what they say online, both in and outside the workplace. You can seek to treat social media postings by employees as disciplinary matters if they would genuinely damage your interests. There are however limits to the extent that you can realistically seek to control employee use of social media outside working hours. Given the evolving nature of social media, it is perhaps understandable that you are out of your depth when handling social media problems.

Employers are liable for acts of harassment carried out by employees’ in the course of their employment, although they have a defence if they can show that they took all reasonable steps to prevent the employee from carrying out the act or acts. Having no policy weakens your position and you have to do something about it to reduce your future exposure. The employee may cite ‘human rights’ but this argument rarely meets any joy in the courts.

Employers who have social media policies in place will be on firmer ground when it comes to disciplining employees for online comments or conduct than those who do not. However, most sensible employers have disciplinary rules which allow some flexibility and you should have an equal opportunity policy which would allow or indeed require you to act.

Action Points:

• You should therefore initiate your disciplinary procedure and consider some sort of warning or other strong action which demonstrates that you do not approve and will not tolerate discrimination in whatever form.

• You should introduce a robust Social Media Policy which clarifies the consequences of the misuse of social media.

All employers should note that there is now no longer a default retirement age. Each employee has to be looked at on their merits.
You will probably lose the discrimination claim and this risks bringing into question the unfair dismissal claim as it is also highly suspicious that you put only one of your Supervisors into a redundancy pool of one so it is likely that you will be challenged on fairness of the selection process.

In other words if an employer can be so crass, then your credibility about the genuineness of the redundancy and a fair selection procedure, will be seriously undermined. You should therefore look to settle the Tribunal Claim as quietly and economically as you can and then implement the following actions:

1. Refusing flexible working has been held by many Employment Tribunals to be sex discrimination (as the burden of childcare tends to fall disproportionately on women.)
2. Your failure to follow the proper procedure for considering such requests is an offence entitling her to up to eight weeks compensation.

Had you followed the proper procedure and concluded that this was impractical, you would have been on reasonably firm ground.

You should immediately apologise and promise to consider her request properly and promptly. In theory this does not remedy a constructive dismissal but it could get you out of a deep hole.

Unfortunately I would have to advise you to accept her claim as having to work around such an arrangement is likely to be much less disruptive than fighting a tribunal claim which you will probably lose. The good news is that winning a constructive dismissal claim is very hard for employees especially if they jump the gun as she has.

To claim unfair dismissal she must have been continuously employed for twelve months at the effective date of termination. The law has been changed to require two years service but that is only for starters after 6 April 2012 so you are out of luck.

Continuous employment is defined as not being broken by at least one ‘qualifying week’ otherwise employment be regarded as continuous. How do you determine if continuous service was broken? There must be a break of two full calendar weeks involving:

• at least one whole week with a weekend either side

From what you say, with just ten consecutive days break, a full week with weekend either side to qualify for a break in service is not possible and it is probable that continuity will be granted and her unfair dismissal claim will proceed. The situation would also be different if there were any pre-existing agreement for her return to the company. Other exceptions might include a temporary cessation of work.

If she does not appear to have continuity then it is worth asking for a Pre-Hearing Review to determine whether the claim should be allowed to proceed to a full hearing. If she does have continuity then it would be worth seeking to limit the damage, because your procedural errors mean that you will almost certainly lose an unfair dismissal case if it goes to tribunal.

It would be best to do this using ACAS to arrange a settlement based on the fact that she would have to establish:

The size of your business will not be accepted as the reason for not complying with the law and it is very likely you will lose your case. I appreciate that this has not been as issue up to now but to be honest you have just been lucky! You have a legal requirement to have:

1. A written disciplinary policy
2. A statement of written particulars for all employees

The statement of written particlars is supposed to be issued within 8 weeks of the commencement of employment.

If the current disciplinary meeting was potentially going to result in dismissal you need to suspend him with pay until such time as you can produce disciplinary and grievance procedures in line with the ACAS Code of practice – copies are available on the ACAS website or alternatively talk to an HR expert. If the disciplinary matter can wait, then agree to a postponement, until after you have produced these documents.

1. the fact that your jobs are really the same but with a different boss
2. you have a history of not doing so in similar circumstances in the past will further weaken your case.

In most instances it is much easier/fairer to look back at past performance rather than assess who ‘might’ be better in the future, as often this will be based on who is best at interviews.

There has been a recent case of Morgan v The Welsh Rugby Union where the Claimant was made redundant by the Respondent consequent upon a re-organisation. He, along with others, applied for a completely new post created by this re-organisation. He did not get it and claimed that procedural irregularities made it unfair. Mr Morgan lost his case as the Employment Appeal Tribunal said the procedural errors were minor/irrelevant. They also decided that where an employer has to appoint to new roles after a re-organisation, the employer’s decision must of necessity be forward-looking so the interview was fair.

To address the unfair dismissal first, your complete failure to follow a proper disciplinary procedure means that you cannot successfully defend a claim because fair dismissal is essentially about following a proper procedure of inviting to a meeting, holding a proper meeting and holding an appeal meeting. To add to your misfortune any compensation can be increased by up to 25% and probably would be increased by about 20% in this case. You have three choices;

1. Invite him to return to work ie give him his job back
2. Try to settle it before Tribunal using your representative or ACAs to get a fair settlement
3. Fight it on the basis that it would have happened anyway so his compensation would be reduced.

You also need to consider the chances of losing the religious discrimination arguments. Equality laws provide that there is a right to freedom of thought, conscience and religion, but a ‘qualified right’ to manifest one’s religion or beliefs in this case to wear his crucifix. Recent European case law puts you firmly in the middle of conflicting decisions. The law recognises your desire to project a certain image and unlike in the British Airways case where the cross was discreet, your man was not discreet. You might argue that there was negative impact on your ‘brand’ but it would be unwise to rely on this, besides you did not dismiss him for that. Justification of indirect discrimination will continue to be a highly fact specific exercise, although employers will now be required in many cases to accommodate reasonable requests in respect of uniform.

The good news is that you might be on stronger ground as he refused to deal with, or certainly was reluctant to deal with, Muslims and Gay people. These actions would be discriminatory and you have an obligation to prevent it and treat your customers equally. Although people are entitled to hold religious views, that right is severely limited in the workplace when it comes into conflict with the rights of other people. If on the other hand, he was just telling you quietly how he felt, that would probably not amount to discrimination. Frankly it will depend whether the Tribunal believe that he was refusing or just expressing an opinion. The fact that you did not give him an opportunity to clarify (or condemn himself) comes back to the procedural failure.

To return to the next step, option 3 as outlined above looks increasingly unattractive, as Tribunals are expensive enough without apparently endless appeals. You would be wise to ask him to return to work but subject to working out a solution to the badge problem and to satisfying you that his views will not manifest themselves in any way on any group. If he fails to seek or reach such a resolution then he reduces his chances and his potential compensation and therefore may make it easier to negotiate a sensible settlement without the costs and potential bad publicity.

You would be well advised to settle on the best terms that you can negotiate especially as the ex-employee could possibly also pursue claims potentially for:

defamation
malicious falsehood
victimisation
loss of earnings from having lost the job