[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

School’s change to a teacher’s working patterns amounted to repudiatory breach of contract

[post_details]

[Social-Share]

[post_tags]

A school’s decision to change a teacher’s working patterns from three days per week to five days per week has been found to amount to a repudiatory breach of the teacher’s contract of employment entitling her to resign and claim constructive dismissal.. Whilst the contract stated that working hours may be ‘subject to change’, this did not give the school the ability to make such changes without the teacher’s agreement.

Mrs Hart was employed by St Mary’s School as a learning support teacher. From the commencement of her employment in September 2001, Mrs Hart worked part-time. Her hours, whilst not initially fixed, were set at three days per week by a contract of employment entered into in March 2003. The contract stipulated that the part-time working hours ‘may be subject to variation depending upon the requirements of the School Timetable’.

In 2013, the school decided to change its timetabling to allow for teaching of core subjects in the mornings. As a result of this, the school asked Mrs Hart to spread her working hours over five days. A consultation process was followed, but did not result in an agreement, due in part to the fact that family commitments prevented Mrs Hart from working on Fridays. The school proceeded to implement the changes without Mrs Hart’s agreement; in response, she resigned on 3 September 2013 and brought a claim for constructive unfair dismissal.

The Employment Appeal Tribunal held that the change to Mrs Hart’s working hours amounted to a repudiatory breach of contract and entitled Mrs Hart to claim that she had been constructively unfairly dismissed. Mrs Hart’s working patterns were set and the variation clause in the contract did not give the school a carte blanche to change them. Whilst the clause allowed the school to suggest changes to Mrs Hart’s working hours, Mrs Hart was entitled to refuse those changes, and vice versa.

Following this case, employers seeking to rely on broadly drafted variation clauses to alter employees’ terms and conditions should take caution. It is advisable to seek to agree any suggested changes with the affected employees but, as in this case, agreement cannot always be reached and the consequences of insisting upon those changes could prove costly.

Hart v St Mary’s School (Colchester) Ltd UKEAT/0305/14

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

Employer’s reasonable efforts found to be sufficient to avoid having constructive knowledge of a disability

[post_details]

[Social-Share]

[post_tags]

An employer’s reasonable, though not perfect, efforts to discern whether an employee’s numerous sickness absences were caused by disability have been found to be sufficient to prevent it having constructive knowledge of her disability.

Ms Donelien was employed as a court officer by Liberata UK Limited from 1998. Ms Donelien claimed to suffer from a number of health conditions, including hypertension and stress. In 2009, Ms Donelien was absent for a total of 128 days on various ill-health grounds, some of which related to hypertension and stress, whilst others were for colds or stomach upsets and some went unexplained. Liberata referred Ms Donelien to its occupational health service in May 2009, posing a number of questions in the referral. The report came back in July 2009 to state that Ms Donelien was not disabled, but as it failed to answer the questions posed, a more detailed version was produced at Liberata’s request. Despite the new version still failing to give insufficient answers to the questions, Liberata did not follow up a second time, but instead held ‘return to work’ meetings and attempted to discuss the situation with Ms Donelien. Ms Donelien was uncooperative and refused to give Liberata permission to speak to her GP.

Liberata took the view that Ms Donelien was not disabled and summarily dismissed her in October 2009 due to her repeated absences. Ms Donelien argued that she was disabled and that whilst Liberata did not actually know about her disability, her employer should have known had they taken sufficient trouble to find out and made reasonable adjustments.

Ms Donelien was found to have been disabled from August 2009. The EAT considered whether Liberata should have known and held that although Liberata did not revert to occupational health to press for answers to its questions on a second occasion, it did engage with Ms Donelien and considered two letters from Ms Donelien’s GP as requested. The EAT found that Liberata did all it could reasonably have done to make its own decision that Ms Donelien was not disabled rather than blindly relying on the report from occupational health.

This case reassures employers that whilst they must take reasonable steps to ascertain whether an employee is disabled to avoid a finding of constructive knowledge (even where the employee is being obstructive, as in the present case), the test is not a ‘counsel of perfection’. Nonetheless, employers should keep their minds open to the possibility that numerous sickness absences may be caused by an underlying disability.

Donelien v Liberata UK Ltd UKEAT/0297/14

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

Can employers make unilateral changes to contracts?

[post_details]

[Social-Share]

[post_tags]

Whilst the general rule is that changes to the terms of a contract of employment must be agreed, it is possible to make unilateral changes if an employer has the express contractual right to do so. Two cases this month emphasise how clearly this right needs to be expressed to be effective.

In Sparks v Department for Transport, the Claimants were each employed by a different agency run by the Department for Transport. They all had a staff handbook based on a standard form. The handbooks contained a trigger point after which absences from work would be formally investigated; this ranged from 8 to 21 days depending on the agency. The absence provisions were in ‘Part A’ of the handbook, which purported to be contractual. The Department for Transport sought to harmonise the handbooks so that every agency had an absence trigger point of 5 days.

In Norman v National Audit Office, the offer letters given to employees contained a statement that the terms and conditions of employment were ‘subject to amendment’; the offer letter contained provisions for notification of changes once made, but no further detail. The National Audit Office relied on the flexibility clause to reduce the amount of paid sick leave available under the contract.

In both cases the employees challenged the attempted changes to their terms and conditions.

The High Court in Sparks took the view that the provisions as to absence procedures were intended to be binding and had been incorporated into staff contracts of employment. It rejected the Department of Transport’s submission that the changes were beneficial to staff. The changes would lead to employees facing the possibility of formal sanctions much sooner which was clearly detrimental.

In Norman, the EAT held that merely including the phrase ‘subject to amendment’ was nowhere near being sufficiently clear and unambiguous to be relied on to make alterations to the terms of its employees’ contracts without consent. Whilst the HR manual allowed for changes essential to the operation of the business, it was not incorporated into contract and, in any event, the changes to sick pay were not essential. The EAT held that the sick pay provisions should remain unchanged.

Employers will see from these decisions that it is particularly difficult to amend the terms of contracts of employment contracts without employees’ prior consent. It is, however, possible. Employers wishing to reserve their right to amend should ensure that there is a clear and unambiguous flexibility clause in the contracts which specifies a method by which changes may be made. Similarly, where there is a staff handbook or manual, employers should be clear on what, if any, aspects of them are intended to be contractually binding.

Sparks and another v Department for Transport [2015] EWHC 181 and Norman & Another v National Audit Office UKEAT/0276/14

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

Bonus scheme found to be discriminatory against disabled employees

[post_details]

[Social-Share]

[post_tags]

A bonus scheme which related to levels of sickness absence has been found to be discriminatory against disabled employees.

The Land Registry operated a discretionary bonus scheme under which employees lost their eligibility for bonuses if they had received a formal warning. Whilst managers had the discretion to ignore some warnings in determining bonus awards, warnings relating to sickness absence did not come within the scope of that discretion. The EAT found that the very fact of the absences led to non-payment, therefore making the measure discriminatory, with no justification.

Employers with bonus schemes should be wary of any potential discriminatory effects, particularly where eligibility is linked to levels of attendance. In order to avoid this, it is best to maintain an element of discretion, rather than applying automatic sanctions.

Land Registry v Houghton and others UKEAT/0149/14

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

FCA announces start date for new senior manager and certification regime

[post_details]

[Social-Share]

[post_tags]

The Financial Conduct Authority has announced that a new senior manager and certification regime will be put in place as of 7 March 2016. This follows the publication of FCA and PRA consultation papers in July and December 2014.

Transitional documents, including the names of senior managers affected by the new regime, must be submitted to the regulators by 8 February 2016. HMRC has also confirmed that the regime will apply to UK branches of foreign banks.

The FCA is hoping that these changes will strengthen accountability of senior management in banks.

Strengthening Accountability in Banking, Financial Conduct Authority, 3 March 2015

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

Revised ACAS Code changes provisions on worker’s right to be accompanied

[post_details]

[Social-Share]

[post_tags]

A revised version of the ACAS Code of Practice on Disciplinary and Grievance Procedures took effect on 11 March 2015, after having been approved by Parliament.

The new Code clarifies the provisions regarding requests by workers to be accompanied during a disciplinary or grievance meeting, confirming that the requirement of reasonableness applies to the request itself, and not to the choice of the companion. Thus, in order to be considered reasonable, the worker must consider the practicalities of the request. This would include allowing the employer reasonable time to make arrangements, and providing the information necessary to deal with the request.

The Code further states that an employer must agree to the request to be accompanied by one of the chosen statutory companions, and confirms that workers are entitled to change their chosen companion more than once.

Employers should ensure that their disciplinary and grievance procedures are amended to reflect these new changes to the Code of Practice.

ACAS Code of Practice 1 – Disciplinary and Grievance Procedures

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]