udidwot!?

One of our male staff works on the “support” roster, rather than the main roster which allows him to work the same shifts every week, rather than having to work varied shift patterns on the main roster which is 24/7. He does this because of having a disabled child and needs to plan/share the childcare. His manager has been reviewing rosters and told him he had a “very poor excuse” for being on the support roster and that he should be removed from it. He also said he could understand it if he were the mother but he was ‘the breadwinner and his wife only had a part time job’. In fairness he is reviewing all the people who enjoy this benefit.

Your manager is articulating some very stereotypical outdated views of women and men in employment and as such opens you up to not only a constructive dismissal claim but also one for sex discrimination. The majority of claimants about sex discrimination are from women but the law is evenly balanced and there have been a significant number of high profile claims from men. There is also a slight risk of claim for associated disability discrimination. You are entitled to review employees’ non-statutory flexible working arrangements but you should use objective and transparent criteria if removing this benefit from some employees, but not others. The use of such justifiable criteria in flexible working applications is likely to become even more important when the statutory right to request flexible working is extended to all employees in the future.

At the moment your risk of losing a Tribunal claim is high, so it would be best to say that he has reconsidered his decision rather than wait for the grievance/appeal/claim. If notwithstanding that decision you still receive a grievance from the employee then you will need to hear it properly and take some appropriate action against the manager.

One of our line managers was having some sort of session with one of his employees. She then came to see me to ask what he meant when he said she was a ‘high maintenance tart’. I said I would try to find out and get back to her. I am not sure that I really want to know! I had to avoid laughing and to buy some time for a considered response.

Unless you can think of a suitably bland interpretation or justify the assessment then you may be in trouble as this is potentially a constructive dismissal and sex discrimination. If she really is that dim it might also be disability discrimination! In one famous case an employer lost at Tribunal after saying to a colleague about his secretary “she is an intolerable bitch on Mondays”, as it was held to fundamentally undermine the duty of trust and confidence which employers owe to all their employees, when she heard about it. As it is unlikely he would have said the same thing to a man it could well be construed as sex discrimination.

You should get together with her manager and better understand the context of his comments which will be difficult to justify so it would be best to apologise. If she has taken offence and an apology does not work then mediation might be an appropriate means of resolving this conflict. You might also want to think about training for managers.

We have received a Tribunal claim from an ex-employee claiming unfair dismissal and race discrimination. We made a bit of a mess of our dismissal procedures and they are saying that this must also be indicative of a discriminatory approach. I do not believe that I thought about her race during the process but it is true that we are normally very good at following procedures.

Most unfair dismissal cases are lost because of poor procedural ‘mess-ups’. The trouble with arguing that it made no difference is that either it would have made a difference or no-one will ever know what difference it would have made. So if you had asked the right questions, not appeared to have been partial or given them the right to be accompanied in accordance with their rights etc. they may well have kept their job. As people are not usually stupid enough to say that they are making a decision because of a person’s race or other protected characteristics, Employment Tribunals have to use their judgment to assess what was really going on. What matters is not what you or your colleagues were thinking but what you did. The legal test is whether ‘but for’ their race they have been treated adversely by their employer’. Furthermore Tribunals can also infer unconscious discrimination and a Claimant need not show that the particular characteristic was the only reason for the alleged discriminatory treatment, or even the main reason; it will be sufficient to show that it was an effective cause or an important factor in respect of the alleged treatment.

You will need to work very hard to establish that your failures were not because of her race and it would be wise to seek to reduce your risk exposure by agreeing a compensatory payment via Compromise Agreement or a COT3 through ACAS.

We have just suspended someone for suspected gross misconduct but it may take some time to complete our investigation. accrues holiday entitlement at the statutory rate (28 days) or their contractual rate (in this case 33 days) during their period on suspension. I said that this is a statutory matter so only 28 days. He also wants to contact his colleagues and I do not think we can stop him under the Human Rights Act.

It is likely to be a contractual matter and as it should only last for a couple of weeks at most then you would be arguing fractions of a day’s entitlement. Suspension is meant to be a neutral action and such penny pinching makes it look like you are being vindictive. It would not be unusual or wrong to say he/she should not attend their place of work other than for the purpose of attending disciplinary proceedings. Nor should they be allowed to contact any other employees, suppliers or customers of the employer, except a nominated representative/colleague prior to any disciplinary proceedings, without the employer’s consent. Most Human Rights Act arguments are without any legal substance within an employment setting.

We have a woman currently on maternity leave whose department went through a restructure whilst she has been on leave. Nobody was made redundant but the jobs themselves were restructured / realigned to ensure they achieved their growth aspirations and deliver opportunities for career development. There is a job for her to return to but the salary level is lower (c. £4.5k difference) than she was earning in the job role before she went on maternity leave. All other terms and conditions and benefits remain the same. A colleague has said that we are open to challenge on offering her a job where the salary level is less on her return work. The trouble is that her old job is now no longer available. We are not sure whether to tell her before or after she gets back.

You are in serious trouble due to your failure to consult and even more so if every one else in the department has remained the same or has got better job/prospects and the only person to lose salary out of this whole restructure is a woman who happens to be on maternity leave.

Unless she made it very clear that she wanted no contact whatsoever during her maternity leave, there is no reason why you could not have made contact to involve her in whatever decision-making went on during this re-structure. It is true that she is only entitled to return to the same job if it is reasonably practicable to do so but you appear to have made it less practicable to do so which raises questions about your motives for doing so. The right to return (after 6 months of maternity leave) is to the same job or another job which is suitable and appropriate. She is however entitled to return on terms and conditions which are not less favourable than those which would have applied had she not had been on maternity leave.

You should hope that she is easily persuaded that the job is not less suitable and ensure that she is given the same salary and conditions that she had before. Eating humble pie and assuring her that you were trying to be considerate by not disturbing her maternity leave is your best defence against a potentially very costly claim for sex discrimination, discrimination connected to her maternity and unfair constructive dismissal.

Until last month we used to employ someone who is 69 years old but due to financial constraints we told him we would have to let him go. He asked for a reason and we informed him that we did not need to give him a reason because he is over 65. He is saying that this is an unfair redundancy and age discrimination.

What you appear to be describing is a redundancy and you appear to have failed to consult with him about the redundancy or the consequences of it which will make it unfair even if your reason for ‘letting him go’ were genuine. You also appear to have failed to give him a redundancy payment which over 65s have been entitled to since 2006. You appear to be working in the assumption that the Default Retirement Age is still in force when it actually ended in April 2011 which was the last date for giving notification of intention to compulsorily retire someone of 65 or older. If you are treating him like this because he is ‘too old’ to require normal fair treatment then this will most likely be held to be age discrimination. The damages for age discrimination are unlimited and he would be able to claim for his losses up to the date he would have retired. Historically this would have been to age 65 but will no longer be so and it will be for a Tribunal to assess the correct level of compensation.

You need to get him in and apologise for your ‘mistaken and outdated’ perception of the law. if you reinstate him and follow the proper redundancy procedures including offering suitable alternative work where it is available then you will have a chance of avoiding costly litigation. If he is so unhappy with your actions that he will not agree to your proposals to rectify your errors then it may be worth contacting ACAS and asking about their pre-claim conciliation scheme to achieve an amicable resolution of your dispute.

We recently held a disciplinary hearing with one of our employee and he turned up with someone who said he was a trade union representative. We let him stay and we have issued a written warning with a right to appeal. In his appeal letter he has said he again intends to be accompanied by this person, who we have found out is his next door neighbour and a shop steward at a local factory and our employee is not even a member of that Trade Union. Can we say no to him this time?

You should always seek to establish the bona fides of anyone other than one of your own employees. His neighbour might have been authorised by his union to represent people in disciplinary or grievance hearings but he is almost certainly not authorised to represent non-members. You will need to inform your employee that you let him be accompanied last time in good faith that the companion was a full time union official but you have since found out that this is not the case and he does not fit the definition of a companion so he will not be permitted to bring the individual a second time. Inform the employee that he had better find a companion that does correctly fulfil the criteria this time and next time if he attempts to bring someone who does not work for you then you will ask for the person’s accredited union companion credentials prior to the meeting .

We are trying to get rid of someone and have given them a compromise agreement based on one we used a few years ago with changed name, figures and dates. When he took it to his solicitor, his solicitor phoned and said that he was not happy with some of the terminology (and not prepared to sign). Furthermore it looked like something his children might find on the internet. I told him that as long as his client signed it with any reasonable amendments it did not matter where we got it from.

There are several good reasons not to rely on old templates or even new stuff found on the internet. Firstly you need to get the solicitor on board otherwise you may not get agreement. If you are on risky ground then looking like an amateur just gives the solicitor the high moral ground and the opportunity to negotiate on behalf of their client a better deal. There is also case law which says that template agreements which have not been properly customised will not be valid so even if the agreement is signed they could subsequently have second thoughts and make a further claim. You may overlook important terms such as restrictive covenants, return of property or confidentiality which may not have been necessary for the last case but would be important for this one. Finally do not forget that if the solicitor does not sign it then it is not a valid compromise agreement at all.

The best solution is to get every compromise agreement drafted and agreed with a professional who knows the law, your issues so that the Compromise is tailored to the specific issues of each case, and has the experience to ensure that these run smoothly. A professional does not have to be a solicitor to draft a good Compromise Agreement. Most solicitors prefer to deal with professionals who know what they are doing, although the truth is that they make more money out of badly drafted agreements , contracts, wills etc than good ones.

We recently signed a compromise agreement with an ex-employee and have subsequently received a written reference request in the format of a table to complete. I know we agreed something with the employee but this is a very specific reference request and my boss has told me to fill in the form fully and honestly as we have a duty of care to the potential employer and could be sued for negligent misrepresentation if we tell lies. The reference request also asks us to confirm that we are not constrained from answering fully due to the existence of a compromise agreement. I do not like to argue with her so feel obliged to do what she says.

You have agreed a form of words with the former employee that is a legally binding agreement so you have a duty of care to abide by that as it will almost certainly say that you will not deviate from the specified wording. Furthermore you have probably agreed that the detail and existence of the agreement must also remain confidential. Failure to follow all the terms of the compromise agreement gives the ex-employee the option of breaking their side i.e. raising a Tribunal claim and also suing for breach of contract.

You should therefore reply in the format determined in the compromise agreement with no amendment. You do not have to fill in reference forms or indeed have any obligation to complete references except in limited circumstances of which this is one. You will have to choose whether just to ignore their additional request or add some words which say that it is not your policy to complete forms or provide any additional information other than that which you are providing.

We have an employee who has been very unreliable in the eleven months she has been with us. She is sometimes late and often does not come in at all. To add insult to injury she is also very poor at telephoning in to tell us what is wrong and how long she is likely to be off for. Her colleagues are fed up with her and so are we so she was given a final warning in a meeting with her only two weeks ago as we had worked out that she has taken at least three days off just about every month since she joined us. She was off again two days ago but only phoned yesterday to say she was not in because she thought she might be pregnant and had no idea when she might be back. I told her that I was fed up with her excuses and unreliability and that if she was not back at work today she would be dismissed. She is not back and I am about to write confirming her dismissal before we get too close to 12 months.

You cannot be liable for unfair dismissal if she has less than 12 months service at the effective date of termination however you are on very weak ground in relation to dismissing her when she has just told you she is pregnant or even that she thinks she might be. However bad she is, a Tribunal would take a lot of persuading that the final straw was not her pregnancy even after an undocumented “final warning” followed by a further absence and failure to make contact. However sympathetic they may feel to your problem, a Tribunal are most likely going to find that the dismissal was automatically unfair and that it amounted to sex discrimination. It will not even save you if she turns out not to be pregnant as they will almost certainly believe that you did it to deprive her of employment and maternity benefits.

You should immediately contact her to invite her to an investigation meeting to review her continued failure to follow absence reporting procedures and her high level of cumulative absenteeism. If that does not ‘exonerate’ her from culpability, then invite her to a disciplinary hearing and give her an opportunity to explain herself regarding her failure to correctly follow your reporting rules and why she has been off sick so much. Be advised though that If she has been pregnant for some time but concealing her pregnancy related absences then you need to disregard those days of sickness absence when considering her overall sickness record . Assuming she has not been pregnant until recently, if at all, then you might issue a final written warning which would last for 12 months of ‘active service’ i.e. attendance at work. It would be risky to dismiss during her pregnancy unless her absences are clearly unrelated to her pregnancy or if she continues to break your requirement for absence notification without good explanation.

If she confirms that she is indeed pregnant you should also congratulate her and complete a pregnancy risk assessment.