Disillusioned with the meaning of dismissals?
The obvious theme being the ‘dismissal’, and the fact that employment is ending or has ended. However, in many cases, those concepts are used interchangeably as if they all represent the same claim, yet they are all very distinct and separate claims that have to be considered against the applicable legal principles. A bit like an Urban dictionary, we will tell you what they really mean…
This one is easy – a summary dismissal is a dismissal of an employee without any notice (and without paying them any notice either). Thus, it is quite common in cases of gross misconduct for the employee to be summarily dismissed.
This is a breach of contract claim, namely that the employer has dismissed the employee in breach of the terms of the employment contract.
If the employment contract provides that the employee is entitled to 3 months’ notice on termination, but the employer only gives 2 months’ notice, then this will give rise to a wrongful dismissal claim. It is a contractual claim, and the employee will point to the fact that they have suffered loss – 1 month’s loss of salary and benefits.
Often this claim is pursued when the employer terminates without any notice (see summary dismissal above), but the employee contends that the employer did not have grounds to terminate without notice. This claim is not concerned with the fairness of the procedure followed; it is simply an anaylsis of whether the employer has breached the employment contract.
This claim can be pursued in the Employment Tribunal but a cap of £25,000 applies on the value of that claim. Thus, if the wrongful dismissal claim is worth more than £25,000, it may need to be pursued in the High Court.
To bring a standard unfair dismissal claim, the employee needs 2 years continuous service with their employer. No such service requirement exists for wrongful dismissal claims.
If an employee has more than 2 years of continuous service and is dismissed by their employer (irrespective of whether notice was given), they can claim that they have been unfairly dismissed.
The Employment Tribunal will consider three key issues. Firstly, did the employer have a potentially fair reason to dismiss the employee. There are currently 5 recognised potentially fair reasons – capability, conduct, redundancy, breach of a statutory duty or restriction, and some other substantial reason. The dismissal must be for one of those reasons. Secondly, the Tribunal has to be satisfied that the employer followed a fair procedure in reaching the decision to dismiss and thirdly, that the employer acted reasonably in treating that reason as sufficient to warrant dismissal.
Thus, this claim is not about notice; it is about the fairness of the dismissal and will involve an analysis of the reason for dismissal, the procedure followed and whether the decision to dismiss was reasonable.
The fundamental principle of a constructive claim is that the employee has resigned, as opposed to the employer expressly dismissing them. Note that like an unfair dismissal claim, the employee needs 2 years of continuous service with their employer to pursue a constructive dismissal claim.
In many cases, the employee will resign without notice, but equally, claims can be pursued even if the employee works their notice following their resignation. The employee typically argues that they are resigning either in response to a repudiatory breach of their employment contract by the employer (an express or implied term) or that the employer has engaged in cumulative conduct over a period, resulting in a ‘final straw’ incident, leaving them no choice but to resign.
There is much case law on examples of successful constructive dismissal claims, which can include reductions to, or non-payment of, salary or where the employer has breached trust and confidence.
In essence, the employee has to prove that they have been dismissed ‘constructively’ by their employer. If they are able to overcome that burden, then the Employment Tribunal will consider the fairness of the ‘dismissal’.
All clear…well, brace yourselves…it is possible for an employee to be summarily dismissed (for say gross misconduct), who then alleges that they were unfairly dismissed (because, for instance, they do not believe the employer followed a fair process in dismissing them) and also alleges that they were wrongfully dismissed (on the basis that the employer did not have grounds to terminate without notice)…
We like to keep things straightforward at Sherrards; we cannot say the same for the law.
Would I lie to you?
First the controversy with skipping the queue for the Queen’s lying-in-state, then the conviction of his brother for child sex offences and now his resignation from ITV on the back of the disclosure of his affair with an employee. The most recent controversy regarding his affair raises a myriad of employment law issues, such that this scenario could very easily find its way into an employment law exam paper. The reality is that had Schofield not resigned, ITV would have had a legitimate basis to take disciplinary action:
- It is being suggested that when the affair was investigated by ITV bosses in 2020, Schofield denied that it had happened. Clearly that is a dishonesty issue, and one which is sufficient on its own to result in a breakdown in trust and confidence. Such a breakdown will very often result in dismissal. Clearly there may have been mitigating circumstances that would have influenced that denial, not least the fact that Schofield had only just divulged his sexual orientation publicly in early 2020. Nevertheless, he lied to his employer about a very serious issue, and those indiscretions are often irretrievable.
- It also raises the question about whether his actions were contrary to any ITV policy on relationships at work, which are commonplace within many organisations. There can be numerous implications of colleagues engaging in personal relationships at work, and particularly so in this case where one of the employees has the public profile that Schofield does.
- It would appear that the issue resulted in a feud between Schofield and his co-presenter, Holly Willoughby. Clearly, the dynamic between them is crucial to the success of a breakfast show and if that relationship has also broken down, it is difficult to see any other outcome than him being removed from that role.
- You can also understand ITVs concern about the reputational damage associated with this fall out. There has been some suggestions that it might mark the end of This Morning but such is the concern about the damage to the brand, that ITV have engaged a barrister to review how the matter was handled in 2020. Most disciplinary policies will have a list of offences that constitute gross or serious misconduct and that will typically include actions of the employee that serve to bring the employer into disrepute. Putting aside the rights and wrongs of the treatment that Schofield is now receiving, the fact remains that his actions have created a situation where ITV and This Morning is under some unwanted scrutiny.
With all of the above in mind, you can understand Schofield’s decision to resign, as clearly his position had become untenable. In many employment situations, it can be better for the employee to resign if facing the inevitable dismissal or disciplinary action; the difference here that this situation is being aired so publicly that the damage has already been done for both parties.
Is there a future for non-compete clauses?
Hot on the heels of the US Federal Trade Commission’s (“FTC”) proposal for a complete ban on non-competes, the UK Government has announced its intention to limit post termination non-compete clauses to just three months. This comes as part of a wider announcement of proposals which the government says have been made to help boost the economy, in this case by promoting competition and productivity in the workplace.
When will this happen?
It’s unclear at the moment when this restriction will come into force. Any reform to the rules on non-complete clauses will require primary legislation, which the government’s press release states it will be done “when parliamentary time allows”, so when that will be is anyone’s guess.
What’s the impact of this change?
At first glance, this will cause alarm for many employers, particularly those in recruitment or sales where the exposure of former employees joining a competitor or setting up in competition is a real concern. However, there’s long been criticism in the courts for non-compete clauses with judges seeing them as unreasonable restraint of trade, particularly where there are non-dealing and non-solicitation clauses which can arguably offer sufficient protections to a business’ legitimate interests, without there being a total ban on competition.
What we do know is that the government have confirmed that limiting non-compete clauses will not affect restrictions during garden leave or paid notice periods (the proposal relates to post-termination only), or change the position on confidentiality clauses or non-solicitation clauses (which prevent employees from contacting previous customers, clients or suppliers in an attempt to win their business).
However, amongst other things, the government’s press release was silent on:
- non-dealing clauses (which sit somewhere between non-solicitation and non-compete clauses and are generally, therefore, easier to enforce than non-compete clauses); and
- whether the proposals will have retrospective effect (it’s likely that they will so an employee who spends 3 months of garden leave would likely not be restricted after the end of their employment, regardless of whether the restriction is longer).
What should employers do now?
Until the proposal becomes law, there’s no legal requirement to amend any existing restrictions, however employers that currently have restrictions beyond 3 months, or who are considering introducing them, should think carefully about whether these are likely to be enforceable now, and in the future.
Restrictive covenants are a complicated area and for the best chance of them being enforceable, they should be regularly reviewed. This is particularly important because the courts will only consider whether a restriction is enforceable at the time it’s entered into, not at the time the employer seeks to enforce them (by which time the employee/former employee may have a far more senior position, making the restrictions even more important).
For advice and assistance with drafting enforceable restrictive covenants, contact the Employment Team at Sherrards.
Employer’s responsibilities during the heatwave
Partner in Employment law at Sherrards Mark Fellows, answers some common questions ahead of another heatwave:
Do I have to pay employees who are unable to get into work due to travel difficulties?
Take a look at your employment contracts and Employee Handbook. These might specify whether an employee is entitled to be paid if they are unable to get in due to travel problems. If they are silent, however, then the default position is that the obligation is on the employee to get into work, regardless of any difficulties caused by the weather or otherwise. If they do not attend, they are on unauthorised absence and they are arguably not entitled to be paid.
Be careful, however, if you are going to take this approach. Firstly, there is a potential that the employee can argue that failure to make payment in these circumstances is an unauthorised deduction from wages (assuming this is not covered in the employment contract). The defence to this would be that there was no entitlement to pay as no work was done, but it may be an argument you would prefer to avoid. Secondly, you should assess whether the financial benefit of withholding pay is outweighed by the impact on staff morale and productivity. This is particularly so if the weather and travel conditions are extreme and, even with the best of intentions and efforts, employees are unable to get in.
Above all, you should ensure that your approach is consistent. Ideally, tell staff in advance (in written format, e.g. memo or email) what your approach is going to be or, even better, have an “Extreme Weather Policy”.
Consider whether employees are able to work from home, whether alternative travel arrangements can be made or whether there are other ways around the issues – e.g. travelling outside of peak times to avoid the worst of the heat. Otherwise, clearly explain to employees that either: (a) any time off will be unpaid; (b) time off will be paid but that they are expected to make up the time later; or (c) they can request the time off as paid annual leave or unpaid time off for dependant’s leave (see below). Prior notification is particularly important if you have made payments in the past in such circumstances.
As an aside, be careful if you are trying to insist on employees taking annual holiday retrospectively. Employees will need to agree to this unless the contract specifically allows for you to do this.
I have an employee who says they cannot come in because their child’s school has closed due to the heat. What shall I do?
Employees with responsibility for a dependant are entitled to emergency time off in circumstances in which there is an unexpected disruption to childcare. Unless the school closure was announced a reasonable time in advance, such that the employee had sufficient time to arrange alternative childcare, this would probably be an emergency situation and employees are entitled to take time off and not suffer any detriment for doing so.
Strictly speaking, the time off is unpaid (unless the contract of employment says otherwise) but employers may again want to consider the impact on morale that this approach would have. Again, it is important to be consistent in your approach. You should be especially careful where other employees who are unable to make it into the office due to travel are being paid.
One of my employees failed to come into work today, blaming the heatwave and travel issues. I think he is using it as an excuse and could have easily come in. Where do I stand?
If you believe that an employee is falsely using the weather conditions as an excuse for absence or lateness, this can be treated as a disciplinary matter. If you consider the matter to be serious enough (e.g. if it is a persistent or blatant case), you should investigate in line with your disciplinary policy and take action as appropriate.
However, in less serious or one-off cases, you may be better placed simply having a quiet word with the employee and letting them know that any further time off will have to be taken as holiday or will be unpaid. Bear in mind that it can often be difficult to prove or disprove an employee’s ability to come into work in these circumstances.
Our air conditioning isn’t great. Is there a maximum temperature above which I am obliged to shut the workplace?
In short, no, there is technically no maximum temperature above which people aren’t allowed to work. In offices or similar environments, the temperature should be “reasonable”. You should have thermometers around the workplace so that you can check the temperature – although temperature itself is not the sole issue, since humidity, radiant heat sources and clothing are also factors.
The TUC has lobbied for an upper limit on workplace temperature to be introduced – suggesting that employers be forced to take steps when the temperature inside hits 24˚C. Under the TUC’s proposals, staff could be sent home and employers prosecuted if temperatures reach 30˚C (or 27˚C for those whose work is physically demanding). However, these proposals are currently not reflective of the law.
If your working environment is getting too hot to be considered “reasonable” then you could be putting your staff’s health and safety at risk. If, having taken steps to try to control those risks, the temperature is becoming dangerous enough to endanger health (e.g. through heatstroke etc) then you would be best advised to shut the workplace.
The above provides a general guide to issues that might arise. However, each situation is unique and different considerations may apply in your case. We would therefore recommend that you consult a solicitor, or another suitably qualified person, about your specific circumstances.
To find out more about employers responsibilities during a heatwave, click here to speak Employment Partner Mark Fellows.
A storm in a ‘cake’ cup
How often have we wandered into a bakery asking them to make a celebration cake, personalised to suit the occasion. Would you ever consider that such a request could give rise to 7 years of litigation, culminating in a recent decision by the European Court of Human Rights?
No, me neither.
But this is precisely what happened when Gareth Lee visited Ashers Bakery, a family run bakery in Belfast, with a request that they make him a cake with a picture of Bert and Ernie from Sesame Street and the slogan ‘Support Gay Marriage’. The bakery refused to fulfil the order because they felt it contravened their Christian beliefs.
Mr Lee, a gay rights activist, argued that by refusing to fulfil his order, the bakery had discriminated against him on grounds of his sexual orientation. Mr Lee, backed by the Equality Commission in Northern Ireland issued a claim for discrimination. He also argued that the refusal infringed his political beliefs because at the time he made the cake order, Northern Ireland did not legally recognise same sex marriages.
Ashers, backed by the Christian Institute in Northern Ireland, fought the case on the basis they maintained that they had not refused to fulfil the order because Mr Lee was gay, but because the order requested was contrary to their religious beliefs.
What followed was a series of hearings and appeals. At the initial hearing, the Court found in favour of Mr Lee and held that he had been discriminated against on the basis of his sexual orientation and his political beliefs. The Judge acknowledged that Ashers had “genuine and deeply held” religious views, but said their business was not above the law. The compensation to be paid to Mr Lee was £500.
Ashers appealed to the Court of Appeal but were unsuccessful.
They went one step further and appealed to the Supreme Court, the highest Court in the UK, in 2018. On this occasion, the Court ruled in favour of the bakery, effectively confirming that the owners of the bakery had to retain their rights to freedom of expression and religion.
Mr Lee then took his case to the European Court of Human Rights, but they ruled his case inadmissible, suggesting that not all avenues have been exhausted in the UK. It remains to be seen if Mr Lee will pursue this further.
It is a case that has divided opinion. You can see the respective positions, as Mr Lee understandably felt his rights and beliefs have been infringed, but likewise, the bakery felt that their rights and beliefs would equally have been infringed had they fulfilled the order. In such a case, how do you decide whose rights and beliefs should be given preference over the other? Does one of set of rights and beliefs have greater value over the other? Possibly, a material factor in this dispute may have been the fact that the bakery always argued that they were not refusing to serve Mr Lee because of his sexual orientation; rather it was just a refusal to fulfil that specific order.
And, in case you were wondering, another bakery agreed to make the exact cake that Ashers refused to make, so despite the outcome of the latest instalment of the litigation, it could be said that Mr Lee was still able to have his cake and was able to eat it!
To find out more, please contact Mark Fellows.
Sherrards continue to work with long standing clients Winkworth Franchising Ltd
They continue to undertake a wide variety of work including advising on acquisitions and disposals, reviewing and updating the full suite of franchise agreements for roll-out across the network.
The Sherrards Employment team also support their head office with their employment law and HR needs, as well as advising on matters involving the franchisees.
This year the Franchising team have worked closely with Winkworth to update their internal new and renewal processes for franchisees in their network with the planned roll out of a new franchise agreements to their network of franchisees (circa 110) in their network.
To find out more, please contact Kiall Bagnell.
Sherrards support TOCA Social with their flagship at the O2
TOCA Social is the first of its kind interactive football and dining experience which combines immersive gaming and world-class food and drink.
The Sherrards Employment team was lucky enough to experience the game for themselves after a training session with Team TOCA just before the venue opened to the public.
Mark Fellows said: “TOCA Social is an amazing venue and it really was such a pleasure to be able to support the team as they start on this exciting venture – we’ve already booked to go back with several clients in Summer 2022!”
No Jab, No Sick Pay – Ikea’s Controversial New Policy
Since 16 August 2021, people who are double-jabbed and are without symptoms or a positive test do not need to self-isolate if they come into contact with someone who has tested positive for coronavirus. This was a major step to help ease the serious supply chain shortages that followed the “pingdemic” during the summer of 2021 which saw up to 700,000 per week self-isolating in England and Wales as contacts of positive cases.
Whilst many people are unable to get the vaccination for medical issues, all adults in the UK have now been offered the vaccine. This means that the people who are unvaccinated are either due to medical reasons, or have chosen not to be.
Ikea has argued that employees who refuse to get the vaccine are causing disproportionate financial losses to businesses. Whilst Ikea’s 10,000 plus workers receive an average of £400 a week salary, the furniture retailer said unvaccinated workers will only receive statutory sick pay of £96.35 a week where they are absent for a Covid-related reason (but full-pay if they test positive, as with vaccinated staff).
Given that Ikea is such a high-profile company, it is almost inevitable that other employers will follow suit and many will be monitoring the fall-out of this new policy. In fact, Next is the latest employer to announce it intends to adopt the same approach.
Some have argued that this policy is potentially discriminatory against employees refusing to be vaccinated on the grounds of religion or belief under the Equality Act 2010. Whilst this argument is generally considered unlikely to be successful, to avoid claims employers will need to consider each circumstance on “a case-by-case basis”, which Ikea has also confirmed it will do. This is necessary as applying similar policies without exemptions could be discriminatory against employees are unable to be vaccinated (e.g. those with disability-related medical reasons or pregnant employees).
As well as considering the implications on staff who are unable to be vaccinated, employers considering varying their sick pay entitlements also need to be careful to ensure that they won’t fall foul of any contractual responsibilities, where sick pay forms part of an employee’s contract of employment. It will be important to check the terms before any such measures are introduced.
Perhaps most significantly, employers will need to consider the public response to any policy change in such a highly divisive area before taking any steps.
Finally, if an employer is considering introducing a similar measure in respect of sick pay, a key issue will be the communication to the staff, setting out the reasons for the change and the exceptions that might apply. It may well be that the approach may give rise to some complaints from those employees who are directly affected.
Any employers considering introducing policies which target unvaccinated staff should act with caution and take legal advice in advance to ensure that savings in sickness payments now don’t turn into much larger costs defending claims from unvaccinated staff down the line.
Please contact Emma or the team for more information.
Sherrards advised client Powerday on the acquisition of IOD Skip Hire Limited
This acquisition was led by Charles Hodder but also involved our corporate & commercial, employment and dispute resolution teams. The IOD Skip Hire site became Powerday’s sixth facility in London and means they will inherit the affiliated businesses of IOD.
The transaction was complicated, but we successfully completed the deal due to the team’s experience in the market and ability to work brilliantly across departments, bringing together specific expertise to ensuring seamless transaction.
Two Jabs – Protect you from the Virus and the Job Centre?
As the rapid rollout of the UK’s COVID-19 vaccine provides hope of returning to normality, preparations are being made for staff to return to the workplace. Unsurprisingly the vaccine has divided opinion, with a survey by HR Locker suggesting that one quarter of UK employers are intending to introduce a ‘No Jab, No Job’ policy of making vaccination of staff a compulsory requirement.
Is that permissible I hear you ask?
Can I compel staff to have the Covid-19 Vaccine?
In short, this is fraught with a myriad of issues.
There is currently no legislation permitting an employer to require staff to undergo mandatory medical treatment, including vaccinations, and to do so could amount to a breach of the employee’s human right to respect for their private life.
In addition, any disciplinary action imposed against an employee for refusing to be vaccinated could give rise to discrimination claims (see below).
There will of course be some sectors where you can see a greater justification for requiring staff to be vaccinated, such as healthcare or care home settings, where non-vaccinated employees could present a threat to patients, residents, other staff and themselves. As Boris Johnson recently pointed out, healthcare professionals are already required to be vaccinated against hepatitis B, so requiring a COVID-19 vaccination for those “entrusted with the care of a patient” is a possibility, although the Government is yet to give formal guidance on this issue.
However, in most sectors, a blanket policy of requiring staff to be vaccinated is unlikely to be justified.
If I want to protect the wellbeing of my staff, why is that potentially discriminatory?
It firstly depends upon whether the employee’s refusal to be vaccinated relates to a protected characteristic. This could arise on several grounds:
- religion/belief, as some religions do not condone vaccinations and there is evidence that pig gelatine can be found in certain vaccines;
- age, the vaccine is being rolled out on a sliding age scale such that some members of staff will not yet be eligible;
- maternity/sex, as current guidance is that pregnant women should not have the vaccine; and
- disability, as the vaccine may not be recommended for individuals with certain medical conditions or allergies.
Secondly, it depends upon whether those with the protection afforded above are treated less favourably or penalised for not being able to comply with a vaccination requirement. That might be refusing to allow the employee to return to the workplace, or even disciplining them for a refusal to have the vaccine.
In respect of some types of discrimination, you can seek to justify a discriminatory policy and whilst in some (limited) cases there might be a justification argument for insisting on the vaccine, this will be a very high threshold to surmount, particularly given the existence of less intrusive measures, such as regular testing, PPE and social distancing.
Can I make vaccination a requirement of hiring new employees?
Again, this is fraught with risk.
There are actually restrictions in place that are designed to prevent an employer from asking applicants about their medical history until such time as an offer of employment has been made, and there are also privacy and data protection obligations that will apply in respect of any such information.
When being considered for a vacant role, applicants have the same protection from discrimination as employed staff, so the above concerns will arise. If an applicant is not offered a role because of their refusal to have the vaccine, and their reason relates to one of the protected characteristics mentioned above, then this is likely to amount to discrimination.
What measures can an employer take?
Aside from some very limited exceptions, a compulsory vaccination requirement is not something we would endorse. Instead, we believe employers will need to careful consider a range of measures that can still be an effective way to ensure a safe working environment, whilst balancing individual circumstances and sensitivities:
- Encourage employees to have the vaccine
You can encourage your employees to have the vaccine. Under the Health and Safety at Work Act 1974, employers are obliged to take steps to reduce workplace risks. Consider the extent to which you encourage employees to be vaccinated, as it is a personal choice for everyone.
- Introduce other COVID safe measures
These could include asking staff to wear masks (subject to exemptions), implement social distancing and/or installing plastic screens as appropriate, setting up hand sanitiser stations, arranging for regular testing of staff, and deep cleaning the office.
- Flexible working
Allow employees to work from home where feasible or consider temporary changes to minimise the risk as far as possible. For instance, employees may request to change their working hours to avoid commuting on public transport during rush hour.
- Vaccine policy
Consider implementing a vaccine policy to handle potential workplace disputes which may arise regarding vaccination, for example, how to manage a vaccinated employee refusing to work alongside a non-vaccinated employee or requiring staff to not ask others about their vaccination status.
There is talk of a 3rd vaccination to be rolled out later in the year, so this is a situation that is not going away anytime soon. Taking some of the measures above will hopefully enable you to minimise any disputes on this issue and enable the business to get back to the normality that we have all been craving.