A new law came into force on October 1st 2004 setting out a new ‘3 step’ process which must be followed in the event of a dismissal, disciplinary action or grievance in the workplace. The 3 stages include: communication in writing by the employer and employee, a meeting to discuss the complaint and an appeal meeting (if required). Failure to follow these procedures may result in penalties for both parties. It is the duty of the employer to fully inform staff of their new rights and the new procedures they must follow when resolving a dispute in the workplace.

From October 1st 2004 where a physical feature makes it impossible or unreasonably difficult for a disabled person to access our goods or services, your organisation is required to take reasonable steps to remove the feature, alter the feature or provide a reasonable alternative method of making the service available.

Q. What dangers do employers face from iPods and other such portable electronic storage devices?

A. When iPods or memory sticks are plugged into a PC, they can copy information to or from a PC, often bypassing firewalls or password protection. Therefore, Employers’ systems can be vulnerable to the theft of information, intellectual property and personal data, as well as to the threat of potentially dangerous viruses. The protection starting point is the Employment Contract. This should contain your limits on iPod usage and clauses defining and protecting confidential information and intellectual property, and should protect against unfair competition while employment continues and (if necessary) for a period afterwards.

Back to Top

Q. What is the new gender equality duty (GED)?

A. The Gender Equality Duty (GED) require public sector bodies to ‘pay due regard to’ eliminating unlawful discrimination and promoting equality in their employment and recruitment practices, as well as their policies and services.

Back to Top

Q. What is the definition of constructive dismissal?

A. The legal definition is the termination of employment by an employee in response to a fundamental breach of contract by the employer. In other words, when an employee terminates their employment in response to their employer’s treatment. Whilst constructive dismissal is not a Tribunal Claim, it’s a steppingstone to other claims such as wrongful or unfair dismissal, which can be costly to any business. At the heart of any constructive dismissal claim is a breach of the duty of trust and confidence. They usually focus on a grievance and getting to the heart of the grievance is the key either to reassuring the employee or weakening any potential claim of constructive dismissal.

Back to Top

Q. One of our Managers is having an affair. We all know his wife and it is making everyone uncomfortable. What can we do?

A. As this is unlikely to constitute grounds for summary dismissal, it would be reasonable and lawful to insist the manager maintains complete discretion. An employer must try to create a comfortable environment for all staff. And if it is not dealt with, the employer may face discrimination claims. Religious staff may claim that it is creating an offensive working environment for them on the grounds of their beliefs. Others may claim that they no long respect the manager.

Back to Top

Q. Is DVD piracy in the workplace something employers need to worry about?

A. Piracy is an illegal activity. Not only does downloading on office equipment waste company time, money and resources, it can leave systems open to attack by hackers or viruses. If managers allow this to take place on their premises, they too could face legal action with penalty’s ranging from heavy fines to imprisonment. This, along with selling of pirate goods, should be listed as gross misconduct and not tolerated. Firewalls, Computer-User Policies and security software improve network security and are simple and cost effective precautions.

Back to Top

Q. Can our company be held responsible if one of our employees is subjected to homophobic abuse in the workplace?

A. The Employment Equality Regulations 2003 (Sexual Orientation) prevent discrimination on the grounds of a person’s actual or perceived sexual orientation. Recent case law has highlighted that an employer can be found liable if an employee complains to a Tribunal that they have been subjected to homophobic abuse in the workplace as this treatment lays the employer open to a claim of constructive dismissal or harassment All allegations about language of this type should be investigated as soon as they come to light, a proper investigation and disciplinary action (if appropriate) can address the problem at this point rather than allowing matters to get out of hand.

Back to Top

Q. Will maternity pay, maternity allowance and adoption pay be affected by the new government proposals?

A. Yes. Statutory Maternity Pay (SMP), Maternity allowance and Adoption Pay all increase from 6 to 9 months from April 2007. The government also proposes to change the eligibility rules so that women who qualify for ordinary maternity leave, also qualify for additional maternity leave, dispensing with the rule stating that an employee has to have been continuously employed for 26 weeks before the 14th week before the expected week of childbirth.

Back to Top

Q. Can an employer be liable for the harassment of an employee by their staff?

A. An employer will be liable for harassment by its employees in the course of their employment even if it was unaware of it at the time, unless it has taken reasonable steps to prevent its staff from harassing others. At a minimum, an employer is likely to have to be able to show that it has a harassment policy in place, and that it has taken effective measures to ensure that employees are aware of, and understand the policy.

Back to Top

Q. What measures can employers take to monitor employees’ choice of outfits for work?

A. The rights of employees must be balanced with the demands of discrimination legislation, health and safety legislation and the need to portray a corporate image. For some employers, a dress code will merely state that employees dress in a smart fashion so as to maintain a professional corporate image. For others, the policy may be more specific for health and safety reasons. Making specific requests of female staff could be deemed as discrimination under the Sex Discrimination Act 1975, as could asking an employee to remove clothing relating to their race or religious beliefs. Much of the case law concerning racial discrimination and dress codes relates to employers’ requirements that employees wear certain clothing for health and safety reasons. In the past, tribunals have found that dress codes, although discriminatory, may be justifiable for health and safety reasons when implemented consistently and objections are treated with care and consideration. As with any other policy, employers should ensure that it is incorporated in the contract of employment and communicated effectively.

Back to Top

Q. If full-timers get private medical insurance and company cars, should they be offered to part-timers?

A. Under the Part Time Workers Regulations, part-time workers should be given the same access to benefits as their comparable full-time colleagues but on a pro-rated basis. This is easy to calculate in cases such as salary and holidays but with other benefits such as company cars it is more complicated. Employers have to prove that there is a justifiable reason for withholding the benefit from the part-time worker. The fact that the benefit cannot be calculated on a pro-rata basis in not sufficient justification.
The PTW regulations suggest employers should consider other ways to apply these benefits to part-time workers. For example, employers can calculate the financial value of a company car and add the pro-rata value to the part-time worker’s remuneration package.

Back to Top

Q. An employee is about to start IVF treatment. Do they have a right to time off?

A. There is no statutory right to time off for fertility treatment. Some employers offer paid leave or allow discretionary unpaid leave but in most cases, the employee has to take sick leave or holiday. Case law states that treating time off for IVF as sickness is not discriminatory. It is important that people undergoing fertility treatment are treated in a comparable manner. Men generally take less time off for treatment, so a woman could claim indirect discrimination if she is disciplined for sickness absence arising from such treatment.

Back to Top

Q. Is an employee on a fixed-term contract entitled to receive maternity leave and pay if she becomes pregnant prior to the expiry of the contract?

A. All female employees are entitled to 26 weeks ordinary maternity leave. In addition, provided that she has completed 26 weeks continuous service by the end of the 15th week before her expected week of childbirth, a woman will be entitled to 26 weeks additional maternity leave following on directly from her ordinary maternity leave regardless of whether her contract is fixed-term. If the employer offers a more generous maternity package, fixed-term employees are entitled to benefit from that package unless the employer can provide objective justification for excluding them.

Back to Top

Q. Can employers refuse to employ army reservists?

A. Yes. There is nothing to prevent a prospective employer declining to employ a job applicant on the grounds of that applicant being a reservist. New rules, applicable from 1st April 2004 have highlighted this apparent gap in UK discrimination legislation. These rules require new recruits of the Volunteer Reserve Forces to agree that their unit may inform their employers about their reservist status. Should they change jobs, they must consent to their new employer being informed.

Back to Top