Thursday, 31 March 2016

Fair misconduct dismissal of employee “pulling a sickie”



An employee on sick leave who was found to have exaggerated the effects of an injury caused by a slip at work was fairly dismissed, according to the Employment Appeal Tribunal (EAT). Stephen Simpson rounds up recent employment decisions.

Employee who “pulls a sickie” can be dismissed for misconduct

 In Metroline West v Ajaj, the EAT affirmed that an employee who makes up, or exaggerates the effects of, an injury or illness to take fraudulent sick leave is fundamentally breaching the implied term of trust and confidence and can be dismissed for misconduct.
Bus driver Mr Ajaj went on sick leave after reporting that he had suffered an injury after slipping in the toilets at work.
His employer subsequently became concerned about the genuineness of the injury. It arranged for covert surveillance of his activities while on sick leave.
Mr Ajaj was filmed carrying big bags of shopping and walking in excess of five minutes; both were things that he claimed his injury prevented him from doing.
He was dismissed for misrepresenting the seriousness of his injury and his fitness for work.
Although he won his employment tribunal claim (albeit with reduced compensation), the decision was overturned on appeal.
The EAT rejected Mr Ajaj’s unfair and wrongful dismissal claims.
The employer’s appeal was allowed on the basis that it was reasonably entitled to believe that there had been either a deliberate misrepresentation of the accident, or a deliberate exaggeration of the injuries suffered.
According to the EAT, the allegations that led to Mr Ajaj’s dismissal were underpinned by a real question mark over his honesty.
The EAT held that the first-instance tribunal had wrongly focused on Mr Ajaj’s ability to do his job.
The tribunal should have asked the objective question of whether or not the employer had reasonable grounds for its belief in the misconduct alleged, having conducted a reasonable investigation.
The EAT also stressed that an employee who “pulls a sickie” is being dishonest with the employer, and this can be a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship. 

Eight Important Changes in Employment Law for 2016




Every April, new legislation affecting employment rights and responsibilities is introduced. This year, the development receiving the most attention is the introduction of the national living wage. But are you aware of other important employment law changes on their way?

1. The national living wage is introduced

Workers aged 25 and over will be entitled to the national living wage rate of £7.20 per hour from the first pay reference period beginning on or after 1 April 2016.

The national living wage is a new top rate of the national minimum wage.

Employers should check, in particular, that employees’ pay is not brought below the new rate by salary-sacrifice arrangements.




 

2. Penalties for non-payment of the national minimum wage are increased

The penalty for employers found not to have paid the national minimum wage doubles from 1 April 2016. The enforcement regime is the same for non-payment of the national living wage.



 

3. A new state pension scheme is introduced, ending contracting-out

A single-tier state pension is introduced from 6 April 2016, replacing the previous basic state pension and additional state pension.

Employer-provided pension schemes will no longer be able to contract out of the state pension and receive a national insurance rebate.

This means that, where an employer provides a previously contracted-out scheme, its employer and employee national insurance contribution liability will increase.

Employers should ensure that employees are aware that there may be an impact on their pay packet and that they understand the reasons for this.



 

4. Employer NICs are abolished for apprentices under age 25

As part of the Government’s drive to encourage employers to create more apprenticeships for young people, from 6 April 2016, employers will not pay employer national insurance contributions for apprentices aged under 25.


 

5. Public-sector employees can be required to repay exit payments

Employment law changes April 2016

Regulations requiring higher earning public-sector employees to repay exit payments if they re-join the public sector within a year are expected to come into force in April 2016 or soon after.

The duty to repay will include redundancy payments, voluntary exit payments and payments made to reduce an actuarial reduction to a pension on early retirement.




 

6. Financial penalties can be imposed for non-payment of tribunal awards

Legislation allowing tribunal enforcement officers to impose a financial penalty on an employer that fails to pay a tribunal award or Acas settlement sum is expected to come into force in April 2016.

Research carried out in 2013 showed that less than half of tribunal claimants who had been awarded compensation received the full award from the employer.

The penalty will be 50% of the unpaid award, subject to minimum and maximum amounts and a reduction for prompt payment.



 

7. A salary requirement is introduced for tier 2 workers

Employers can sponsor skilled foreign workers to come to the UK to work for them under tier 2 of the immigration points system. A new requirement for a minimum salary of £35,000 will apply from 6 April 2016.




 

8. Statutory family-related pay and sick pay rates are frozen

Our final change for April isn’t actually a change at all, but many employers might be expecting one around statutory rates of pay. Unlike in previous years, there will be no increase to statutory adoption, maternity, paternity or shared parental pay rates in April 2016.
Personnel Today Direct,    provided me with all this valuable information.   My grateful thanks to them as always for their generosity in sharing.   see them at

Monday, 21 March 2016

Download a free statutory employee entitlements guide

At a glance statutory employee entitlements pocket guide,     all the information you need in one handy guide,      read it here,   or download for free.   includes new minimum pay rates due 1st April 2016 

http://www.paulmurrayhr.co.uk/uploads/Paul_Murray_HR_Employee_Entitlements_Pocket_Guide_2016-17.pdf

Tuesday, 1 March 2016

MARCH edition of employment law newsletter

My periodic newsletter on all things employment law related that I think you should be aware of.
View this email in your browser


Hello  colleagues  ,



  
Don't forget, (just in case you've missed it!)  national living wage is introduced at the end of this month the 1st April 2016,   and it goes to £7:20 hr for those over 25 years of age. All other pay scales remain the same, and will be revised as usual in October.   I mentioned last month about it being important to have a "lay off" clause in your contracts,  well,  read the final piece in this column, it is a timely reminder about lay-offs and being reasonable at all times.
      
Read on for details, and, as always, call me or mail me if you have any concerns or need more information about this edition's content.

Kind regards,     Paul Murray
 

First The News:
Plumbing firm to the rich and famous avoided paying tax and used case of Stringfellow's lapdancer in its defence at employment tribunal

·  Pimlico Plumbers hires its 200 engineers as 'self-employed contractors'
 
·  An Employment Appeals Tribunal found this was a tax benefit to the firm
 
·  The Tribunal also said the arrangement was also a benefit to the plumbers
 
·  The firm encouraged the public  to believe its plumbers were 'an integral part of their workforce'
 
·  The company said it adheres strictly to all employment and tax laws  

An Employment Appeals Tribunal case from 2013 brought by Gary Smith revealed some of the inner workings of Pimlico Plumbers, who had an estimated turnover for 2015 of £30 million. The Tribunal heard Mr Smith worked for the firm between August 25, 2005 and April 28, 2011. 
            Mr Smith, who suffered a heart attack in January 2011 and felt that he was going to be unable to work for some period of time and said he wanted to claim some disability.  His contract with the firm said he must work a minimum of 40 hours a week. In his claim against the firm, his legal team argued he was unable to do this because of his heart attack. 

My Comment:    Whilst on this occasion Pimlico have succeeded in their case,   they did have access to the kind of money to fund such a case.  I expect this would not be the case for most small businesses.   Just be aware that these “cosy” little arrangements,  calling your staff “staff employed”.  Can, and will, be challenged.     read more on my blog
Read more: at Mailonline   

  

 Latest ruling on holiday pay and commission
The Employment Appeal Tribunal (“EAT”) has confirmed that UK law can and should be interpreted to give effect to the decision of the European Court of Justice (“ECJ”) that results-based commission must be taken into account when calculating workers’ holiday pay (British Gas Trading v Lock).
What was this case about and what was decided?
This case has a long history on which we have been reporting over the past few years. In November 2012, an employment tribunal referred Mr Lock’s case to the ECJ to determine whether the EU Working Time Directive (“WTD”) requires results-based commission to be included in the calculation of statutory holiday pay. In May 2014, the ECJ confirmed that it does.
My Comment:  So we still await a final, definitive decision,   the case whilst proceeding in favour of the employees,   it may yet be appealed!     read more on my blog
 


And finally tonight!
 
Reasonableness of Lay-Off Period
Is an express power to lay off subject to an implied term of reasonableness?

An employment tribunal followed the decision of Kenneth MacRae v Dawson [1984] IRLR 5 (preferring it over the earlier decision of A Dakri & Co Ltd v Tiffen [1981] ICR 256 to the contrary) and held that there was no term to be implied as to reasonableness so far as the length of lay off was concerned, but that if there had been, the period was not unreasonable in all the circumstances of the case. As there was no repudiatory breach of contract, there was no constructive dismissal.

The EAT (Langstaff P presiding) dismissed the appeal, ruling that there was no implied term as contended for. Dawson should be followed unless obviously wrong, and, since it was later in time, and had expressly considered Tiffin, it was in any event to be preferred.

 
My Comment:  as always, I've said before,   the devil is in the detail,  make sure your contracts are well drafted.
my thanks to Daniel Barnett  for his informative piece.   read more on my blog
 
 
 


 

 
Tweet

Forward to Friend

Share
Call Me On 
0779 269 7399
Or Connect with me...
Website
Website

Twitter
Twitter

LinkedIn
LinkedIn

Email
Email

Health& Safety Myths

A light hearted look at some of the idiotic things we hear.

Issue

Bar manager refused to serve salt and lemon with Tequila shots to customers in a nightclub due to health and safety.

Panel opinion

There is no workplace health and safety legislation that prohibits the service of salt and lemon with tequila. This looks like a case of quoting an easy excuse – possibly to cover up poor customer service. The bar should simply serve the drink in the traditional way as requested, and not misuse health and safety legislation in this way.

Case 392  golf club refuses to publish minutes of committee meeting. 

Issue

A golf club has stopped putting Committee meeting minutes on to the notice board for health and safety reasons

Panel opinion

There are no conceivable health and safety reasons for not displaying documents such as minutes of a meeting on a notice board. It is totally mystifying that someone should suggest this.

As always my thanks to the HSE site for these stories.    see them at:
 


 The information contained in these pages is an HR overview and not intended to be comprehensive legal advice, always seek specific qualified advice before taking any action that could lead to litigation.   Equally, were we have provided links to external web pages, we are not responsible for the content of other sites.

Copyright © 2016 paul murray HR consultant, All rights reserved.
I send this to all my valued clients, colleagues and people I've actually spoken to, if you find this an intrusion, my apologies, please just unsubscribe.

Our mailing address is:
paul murray HR consultant
Waterside Fold
Hebden Bridge, West Yorkshire HX7 8JD
United Kingdom

Add us to your address book


unsubscribe from this list    update subscription preferences 

Reasonableness of Lay-Off Period


Reasonableness of Lay-Off Period
Is an express power to lay off subject to an implied term of reasonableness?

 
An employment tribunal followed the decision of Kenneth MacRae v Dawson [1984] IRLR 5 (preferring it over the earlier decision of A Dakri & Co Ltd v Tiffen [1981] ICR 256 to the contrary) and held that there was no term to be implied as to reasonableness so far as the length of lay off was concerned, but that if there had been, the period was not unreasonable in all the circumstances of the case. As there was no repudiatory breach of contract, there was no constructive dismissal.

The EAT (Langstaff P presiding) dismissed the appeal, ruling that there was no implied term as contended for. Dawson should be followed unless obviously wrong, and, since it was later in time, and had expressly considered Tiffin, it was in any event to be preferred.

Langstaff P firmly stated that a contract remains a wage/work bargain. If that bargain provides that there are some circumstances in which no money will be paid, no work done, or both, then the failure of the employer to pay in those circumstances will not be a breach of contract. Further, Parliament had provided a scheme for balancing the rights and interests of employer and employee on those occasions where both were adversely affected by a downturn in business. The Employment Rights Act 1996, s148 provides for a period of lay off or short time working (LOST) during which there is no entitlement to claim a redundancy payment. But, after the period of LOST prescribed by ERA s148(2), an employee can serve a notice claiming a payment. For this additional reason this left no room for the implied term in the employment contract advanced by Mr Craig.

Langstaff P did not rule out (see para 46) a constructive dismissal claim based on the employer's breach of the duty of trust and confidence (for example if the employer's desire to maximize profits resulted in behaviour calculated to damage or destroy the relationship of trust and confidence). But this did not arise in the present case.
My Comment:  as always, I've said before,   the devil is in the detail,  make sure your contracts are well drafted.
my thanks to Daniel Barnett  for his informative piece.