How could employers be affected by the recent riots?

After the number of problems caused by riots and unrest across the country, many employers are counting the cost to the business both in terms of the damage caused and the loss of business. Many employers also need to take into account the effect that the riots will have on their obligations to employees. There are four main issues that employers may need to consider.

1. Time Off

One of the main concerns that employers may have is where they have had to close the business for a period of time as a result of damage caused and what they need to do for employees.

If employees are ready and willing to work but employers are not able to provide them with work, employers will still be obliged to pay them in full unless there is a lay off or short time clause within their contract. Employers must therefore give consideration as to whether they are able to provide any other work even if it is at a different location.

Employers may be able to allow the employee to work from home or from a different office which it is reasonable to travel to or possibly the employer may be able to find suitable alternative work for the employee to do. This could be simply asking the employees to help out with the cleanup operation, provided of course any health and safety requirements are adhered to. Putting employees at risk of injury for example could leave employers open for substantial personal injury claims.

Employers must be aware however that they cannot force employees to carry out duties other than their normal ones, unless the contract of employment allows such a degree of flexibility.

If the employer finds that the business will be closed for some time and there is no lay off clause, the employer should seek an agreement to a reduction or pay suspension from the employees affected. Failure to make normal payments to employees could result in a claim for breach of contract, unlawful deduction from wages and potentially even constructive dismissal.

If the contracts allow for reduced pay, employers are likely to only have to pay the Statutory Guarantee Pay (SPG). The current rate is £22.20 per day, or the employee's normal daily pay if less. The SPG is only payable for a maximum of one working week per three-month period and is only payable to employees who have been employed for at least one month.

Employers may need to consider requests for time off for dependants. For example, where an employee is being forced to take time off perhaps where a school club has been damaged. If childcare arrangements unexpectedly break down, employees are permitted to take unpaid leave.

If however the employee requests to take the time off as annual leave, then it is for the employer to consider whether they are happy to waive the notice period for any holiday requests. Obviously employers should bear in mind that a degree of flexibility is likely to help staff morale although they are not obligated to consent to the annual leave being taken.

2. Loss of the business

Some businesses may be unable to trade at all in the future perhaps due to the premises and stock being totally destroyed as was the case with the House of Reeves building in Croydon. Where the business will not be able to continue trading potentially there is an argument that the contract of employment has been frustrated.

This means that the contract comes to an automatic end and there is no dismissal by the employer meaning that the employee will not be entitled to notice or pay in lieu and will not be able to make any claim for unfair dismissal. Employees could perhaps make a claim for redundancy under section 136 (5) of the Employment Rights Act 1996.

3. Transport issues

Some employees may have suffered from transport issues during the time of the unrest and may have perhaps arrived to work late or simply failed to turn up at all.

Where employees arrive late, there is no requirement for them to be paid for the period of time that they are not at work. Employers should bear in mind however that those employees should be allowed the opportunity to perhaps make up the time and it would certainly be unfair to take disciplinary action.

If the employee is not able to have attended work due to the transport problems, then it is not necessary for employer to pay them although it would be open to the employer to see whether they wanted to take the day as annual leave, unpaid leave or make the time up at a later date.

Any employee who had not let you know that they were not able to attend work and failed to give any appropriate reason is able to have a disciplinary procedure brought against them in line with the company's disciplinary procedures.

4. Employees arrested, charged or prosecuted

If employers have employees who are arrested, charged and subsequently convicted of any offences as a result of the riots, employers will need to give careful consideration as to whether they want to pursue disciplinary action.

Employers should not take any disciplinary action just because an employee is charged with an offence outside of work. If that employee is remanded in custody until trial, it is unlikely that they will have to be paid. If an employee subsequently receives a custodial sentence, employers may then be able to dismiss the employee concerned provided that the correct disciplinary procedures are followed. Alternatively it is possible that any contract of employment could be frustrated although employers should make sure that each case is treated on its own merits.

It is possible that employers could dismiss employees for gross misconduct if the conduct is relevant to the employers business, for example if a shop worker is convicted of theft or looting.

Any allegation that a dismissal would be on the basis of having brought the employer into disrepute is likely to be difficult unless for example it is clear that the employer was implicated. Perhaps the most obvious example would be where a rioter was clearly seen to have been wearing the employer’s uniform.

Corporate Manslaughter: Know the risks.

In February of this year, Cotswold geotechnical Holdings became the first company to be convicted under the Corporate Manslaughter and Corporate Homicide Act 2007. It was fined £385,000 after an employee was killed when a trench that he was working in collapsed in unnecessarily dangerous conditions.

Employers need to be aware that they have a general duty to ensure, as far as reasonably practicable, the health and safety of employees at work. They can be found liable for corporate manslaughter if its breach of care is particularly serious and causes an employees death. Although directors and managers can not themselves be liable for corporate manslaughter, they can be prosecuted separately for manslaughter or other offenses under health and safety legislation. Employers need to ensure that they minimise the risks of any liability by;

1. Ensuring the organisation complies with its general health and safety obligations, including any industry or sector specific duties.

2. Appointing a senior manager or director to oversee health and safety at the employers workplace

3. Considering where appropriate an independent audit of health and safety management systems and compliance

4. Providing training for staff on health and safety issues and safe working practices

5. Implementing processes to ensure that health and safety issues are reported up the management chain

6. Ensuring adequate records of compliance with health and safety are kept and properly monitored.

Employers should ensure that they do not overlook any circumstance where company cars are required to be driven. Employers need to ensure that they have systems in place that requires the safety of the vehicle if used for work purposes being checked as well as where appropriate, the fitness to drive of employees. Failure to for example have an adequate policy in place relating to driving under the influence of drink or drugs, may result in possible convictions.

The Department for Transport and the Health and Safety Executive do have guidelines and best practice for managing work-related road safety but employers must ensure that these guidelines are incorporated into an adequate policy and procedure.

Its not all about the pregnant lady

Employers are often surprised when men claim for sex discrimination as there is a fairly generalised view that only women can claim sex discrimination.

The recent case of, Evershed's legal services Ltd v Bellin has really highlighted that this is not always the case. The case itself also makes employers aware that just because somebody is on maternity leave they should not unfairly disadvantage male employees.

Mr Bellin was a solicitor who was placed at risk of redundancy alongside one of his female colleagues who at the time was on maternity leave.

A scoring system was put in place and a score was given for "lock-up" which is the time it takes for a solicitor to secure payment from clients for work done.

Due to Mr Belin’s female colleague being on maternity leave, she was given maximum points for lock up which meant that Mr Bellin was then only given a low score of 1.5.

This meant that Mr Bellin's score was 27 and his colleagues was 27.5. it was argued during the consultation exercise that alternatives could have been used such as;

1. giving both candidates a notional score of 1

2. averaging her performance over a 12 month period

3. scoring at the last convenient date before she started maternity leave i.e. the end of December 2007.

Had the firm adopted the last suggestion then the two scores would have been the same.

The Employment Appeal Tribunal found that although there are circumstances where those on maternity leave are given special treatment in comparison to their male and female colleagues, that special treatment should not go beyond what is reasonably necessary to compensate them for the disadvantage occasioned by their condition.

Employers must ensure that although an employee who is made redundant while on maternity leave does have the right to any suitable alternative vacancies ahead of any other employees, when deciding who to make redundant, automatically favouring a female employee on maternity leave does not always mean that it would not unfairly disadvantage male employees allowing them to successfully bring a claim for sex discrimination.

Equally this is something that may well affect more men in the future particularly with enhanced Paternity rights.

Its just a bit of gossip......

Every workplace has a degree of workplace banter and gossip and it is practically impossible for an employer to stop it however, an employer does need to be aware that even where an employee actively participates in banter, they can find the banter or gossip to be offensive.

For example in the case of Thomas Sanderson blinds v English, the employee was a straight male but because he lived in Brighton and had gone to a boarding school, he was teased about being gay. He did participate in the banter himself however, he finally lodged a complaint in relation to an article that was written about him and which was seen by his family.

He subsequently resigned and claimed harassment on the grounds of sexual orientation. The Employment Appeal Tribunal found that he had participated in the banter and innuendo, it could not constitute harassment however, the one article which had clearly offended him was harassment and his claim was therefore successful.

Similarly, in another case, a female employee was in a relationship with a work colleague but was seen kissing another colleague at the works Christmas party and then going in to his hotel room.

A short while later the employee discovered that she was pregnant and informed her managing partner. In turn he informed the HR manager who then started gossiping with other members of staff and speculating as to who the father might be.

The employee was upset and raised a grievance and also asked to move to a different office temporarily. Her request was refused and her grievance was not dealt with. She then resigned and claimed constructive dismissal and sex discrimination.

The spreading of gossip about the identity of the child's father was held to have constituted sex discrimination and harassment. Also, the refusal to let her work at another office also amounted to sex discrimination.

Employers must ensure that they deal with inappropriate banter and gossip by not only speaking to those involved, but also taking disciplinary action where necessary. Employees must ensure that they have a clear policy of equal opportunities and harassment and that it is readily communicated to staff through appropriate training. Failure to do so may result in the employer being open for claims against them in relation to discrimination or unlawful victimisation.

Have your say

Flexible working has always caused employers a degree of difficulty.

Initially the right to request flexible working was introduced in April 2003 but was then extended to other carers in 2007. It had been planned that in April of this year, the right to request flexible working would be extended to parents of children aged 18 or under however, the government has announced that it will not introduce the change.

The government has however committed to extend the right to all employees and as such has now launched a consultation on implementing this pledge.

It is proposed that the right to request flexible working you will be extended to all employees, regardless of their caring responsibilities and it is aimed that a consultation paper will be published later this year to consider the extension.

The government are not proposing to change the requirements of being eligible to request flexible working and the existing eight business grounds on which an employer can refuse requests will also remain unchanged.

What the government does propose however is to replace the current statutory process of considering flexible working request with a simple duty on employers to consider such requests "reasonably". It is envisaged that a statutory code of practice will be introduced outlining what reasonable consideration would involve.

The consultation period ends on 8 August 2011 and if employers want to have their say, now is the time to do so.

The Department for Business Innovation Skills has launched a new consultation document entitled consultation modern workplaces and there are four key issues that are being looked at.

These include flexible parental leave which will retain 18 weeks maternity leave for mothers but will then reclassify the remaining maternity leave as "parental leave" and will mean that the leave can be shared by the mother or father or both. Again most of it will be paid however the consultation will also cover whether employers and employees that agree for parental leave to be taken in chunks or on a part-time basis.

There are three other points which are also going to be looked at which include the extending the right to request that are working to all employees, the provision for amending the working Time regulations to allow employees to carry over untaken holiday in to subsequent years if they lose the chance to take paid holiday because of sickness absence or maternity bleak parental leave.

There is also a consultation involving whether a employment tribunal has a duty to require employers to conduct a pay audit if they have been found guilty of breaching equal pay legislation. The consultation will close on all four points on 8 August 2011.

The government has recently published an independent review of the sickness absence system. It will explore the current sickness absence system and how it could be changed to help people stay in work as well as how the overall cost of the system can be reduced.

One proposal is to place an obligation on employers to take out income protection insurance rather than the payment of statutory sick pay. This would mean that insurers will become involved at an early stage and may be able to provide support to help get employees back to work.

The current Dutch system where employers have to take full responsibility for sick employees, including finding the alternative jobs if they can not get them back to working a current role, is also being considered.

Employers have the right to participate in the review, the results of which will be reported in the autumn of this year.

Super-injunctions in the Employment Tribunal?

With Ryan Giggs being the most recent celebrity to have been exposed in the super injunction scandal, and increasing public scrutiny over such injunctions, employers must be aware that there are certain criteria which they too can use to have a degree of anonymity within the employment tribunal.

In a recent ruling by the Central London Tribunal, the identity of a both parties in a case involving a top TV chef, reportedly facing a sex discrimination claim from an ex employee, the TV chef has managed to secure a restricted reporting order until the substantive merits of the case have been heard.

This means that the identity of the parties will not be made public until at least a prehearing review which is to be held in July however, the chef's representatives are likely to argue a right to a private life and so the restrictions may continue.

A Restrictive Reporting Order (RRO) cannot be granted in all cases. Usually they are only granted in those involving allegations of sexual misconduct or disability discrimination cases where there is evidence of a personal nature.

They can on some occasions also be granted outside of these areas. For example in some cases involving transsexuals where there has been no sexual misconduct but there is a claim for sex discrimination, the tribunal's have ordered RRO’s on the basis that if the claimant’s were forced to reveal their identity they could be deterred from enforcing their European law right not to suffer discrimination.

Unlike super injunctions, which have to be applied for in England ad Scotland, something which Ryan Giggs found out the hard way, an RRO will prevent the publication or broadcast in Great Britain of any matter that may identify either the person making the allegation of sexual misconduct, the person affected by the allegation and in disability cases, the claimant or any other person named in the order. Ryan Giggs failed to take out an injunction for Scotland and so it is thought that the majority of the links relating to his identity came from there.

The name of an employer can also be withheld to prevent identification of the person affected by the allegation. Any breach of an RRO is a criminal offence and is punishable by a fine on conviction of up to £5000.

The main difference with an RRO and a super injunction is that an RRO will only remain in force until liability and remedy have been determined by a tribunal. Once a judgement has been sent to the parties the RRO is lifted and the information is public knowledge.

Although not as powerful as the super junction, an RRO may be useful to protect an employers identity and position in certain circumstances.

When Personal Becomes Public

Hotmail, Yahoo, Facebook, Twitter, MySpace and many other e-mail and social networking sites are often a headache for employers. Employees are entitled to a private life but there are occasions when an employees personal email or posting, even when done outside of working hours and from home, can be actionable by the employer.

In a recent case, Gosden v Lifeline Project Ltd (LPL), Mr Gosden worked for LPL as a Prison Drug worker. He forwarded an email from home one weekend to a co worker within the prison service who in turned then forwarded it on to someone else within the Prison service. The email contained racist and sexist comments and images containing nudity.

The prison service excluded Mr Gosden from all of its prisons in Yorkshire and Humberside and LPL dismissed Mr Gosden on the grounds that he breached the companies equal opportunities policy and had damaged the company's reputation and its relationship with the prison service.

The Tribunal found the dismissal to be fair. The email was offensive and was sent to LPLs biggest clients and even though the email had been sent in Mr Gosden’s own time and from his own email, the email was a chain e-mail and so therefore, the tribunal made it clear that it was intended to be forwarded to others. Private correspondence intended for Mr Yates's eyes only, may well have attracted privacy.

Again it is yet another example as to how employers need to ensure that any e-mail and Internet policy and disciplinary policy are clear and include reference to situations where even a personal e-mail may not be so personal if it comes into the public domain and has the potential of bringing the employer into disrepute. Equally any offensive comments on social networking sites about co workers could be classed as harassment.