Can we really let employees bite??

If your employee bit someone whilst they were representing you, what would you do? Most employers would probably see it as an act of gross misconduct, suspend the employee, investigate the allegations, hold the disciplinary and then dismiss the employee for gross misconduct.

Luis Suarez has received a 10 match ban from the FA which he will not be appealing but the reality isn’t necessarily whether the ban itself is right, some may say that it is too harsh in light of other bans given but the big question is what are his employers going to do about it.

Luis Suarez is an employee of Liverpool Football Club. An employer of any size or stature would be ill advised not to have an adequately worded disciplinary policy and procedure in place which clearly sets out not only what procedure would be followed but also what constitutes misconduct, the level of misconduct and what sanction could be expected for each level of misconduct. For example turning up late on a couple of occasions is likely to warrant a verbal warning whereas causing physical harm to another, especially if you are in an employer’s uniform, would constitute gross misconduct and warrant a dismissal.

As a basic guide, employers should investigate allegations made, including holding an investigatory meeting, decide if disciplinary action is required and if so invite the employee to a disciplinary meeting, making sure that all of the evidence is supplied to them prior to the meeting. Allow the employee to put their case forward at the disciplinary and then decide if a sanction should be imposed. Once the sanction is imposed the employee should then have the opportunity to appeal it.

Employers have to make sure that the disciplinary policy is applied consistently and fairly across the entire organization and simply allowing one employee off could lead to numerous problems if faced with similar situations further down the line.

It would be interesting to see how Liverpool Football Club would deal with a biting shop assistant after seeing that Luis Suarez has not been dismissed for gross misconduct.

Changes to sickness

The 2011 “Health at Work; an independent review of sickness absence” report made a number of recommendations about how to minimize loss of work due to ill health.

The report included the following recommendations;

• Establish a new independent assessment service which would provide expert advice on whether an employee could return to work and if so how they could be supported by an employer after they had been absent for 4 weeks.

• Revise “Fit Notes” so that an individual’s capacity to return not only to their own job but to work more generally could be considered.

On the 17th January 2013 the Government published its response and largely accepted the report’s recommendations.

As of 2014 a Health and Work Assessment and Advisory Service will be introduced which will provide;

(a) A state funded assessment by occupational health professionals for employees who are off sick for 4 weeks or more;

(b) Employers and employees with advice on overcoming the barriers that prevent employees from returning to work;

(c) Case management for employees with complex needs who require ongoing support to facilitate their return to work;

(d) “Sign Posting to Appropriate Interventions” including universal job match (a free online job matching service launched in November 2012) for those employed and able to return to work but unable to return to their current job.

The Government also confirmed that revised sick note guidance would be published and that statutory sick pay record keeping obligations are to be abolished although currently there is no date regarding this.

All Change

The Tribunal rules and the way in which compensation are calculated are both to be changed. The main changes are set out below.

Compensation

All employers are very aware that any claim for unfair dismissal could cost them significantly. Currently the basic award, which is calculated on the same basis as a statutory redundancy payment is capped at £13,500.

The compensatory award is an amount which the Tribunal considers to be “just and equitable” and is subject to a statutory cap of £74,200. Employers must be ever mindful that in some cases, there is no cap at all.

The Government believe that the current cap has contributed to unrealistic perceptions about the likely level of Tribunal awards and in the Enterprise and Regulatory Reform Bill it has been proposed that the overall cap will continue to apply as well as a new individual cap. This will mean that where an employee’s earnings and award are less than the £74,200, they will be capped at only being able to be compensated for a maximum of 12 months pay.

This change is expected to be brought into force in the summer at around the same time as the proposed changes to the Tribunal rules.

Tribunal Rules

As of 6th April 2012 new employees do not acquire the right to claim unfair dismissal or redundancy for 2 years from joining unless their dismissal is automatically unfair. In addition the Employment Tribunal rules themselves are due to be changed in the summer to try to make them more understandable by unrepresented parties.

The most significant of the proposed changes are that the Tribunal will become fee paying. Anyone wishing to make a claim in the Tribunal will need to pay an issue fee as in the County Courts. The level of fees is going to depend upon the nature of the claim and it is anticipate that the fee, payable by the Claimant, will be between £160 - £250 In addition there will also then be a hearing fee of between £230 - £950.

Employers will also be hit financially where claims are made and are successful, they will be subjected to a penalty imposed by the Tribunal which will be payable to the exchequer and will be in addition to any awards made to the Claimant.

The penalties will have a minimum threshold of £100 and a maximum ceiling of £5,000 although a 50% reduction will apply if that penalty is paid within 21 days. The Tribunal will continue to have discretion as to whether they are in a position to waive the penalty where there are cases of inadvertent error.

There will also be additional costs for employers to consider. Employers will need to make payment of £160 if they wish to issue a counter claim, £600 if they require judicial mediation, £160 if they want to set aside default Judgment and a further £60 if they wish to dismiss a claim following settlement.

Employers will need to bear the new charges in mind particularly when looking at any negotiated settlement and also when considering the likely risk at a Tribunal. Tribunals themselves are likely to make heavy use of their discretionary power to order the losing party to reimburse any fees paid so although the rules are going to be simplified, you should never under value the benefit of good legal representation.