Difficult Employment Issues

Difficult employment situations can arise at the most unexpected of times. A shrewd employer will make themselves aware of the potential issues, before a problem arises.

Typically, there are several areas which are likely to be troublesome for an employer, each of which is explained, in this section, with practical guidance on how to prevent a problem from arising, in the first place, and how to deal with matters, should the issue arise.

• Discrimination

Discrimination refers to unlawful conduct in the workplace which could be said to amount to harassment, victimisation or behaving in a way that causes discrimination.

The main concern with discrimination is that it can potentially land the employer with an unlimited fine, if a tribunal finds that discrimination has, indeed, taken place.

Over the years, the precise scope of what is considered to be discrimination has changed; for example it wasn’t until 2010 that age discrimination became recognised as a form of potential discrimination within the workplace.

In order to work out whether an act is likely to be deemed discriminatory, the first question is whether the discrimination has taken place in relation to a protected characteristic. This is important, as simple discrimination will not in itself be a problem, unless it is in relation to a characteristic which is deemed to be protected, e.g. age, race, sex, disability, religion, sexual orientation.

Things changed dramatically in 2010 with the Equality Act 2010 which pulled in all of the individual pieces of legislation that previously dealt with discrimination. In practice, this actually makes the position a bit easier, as it only requires employers to look at the one main piece of legislation.

A distinction is drawn between direct and indirect discrimination. Direct discrimination refers to the situation where an employee is treated less favourably than someone else, due to differences in the protected characteristics. Indirect discrimination, on the other hand, deals with a situation where some condition results in discrimination happening ‘accidentally’.

Even where discrimination has taken place, all is not lost for the employer! For example, the issue of less favourable treatment becomes paramount, as it is necessary to show that the treatment actually took place; it is not enough for an employee to believe that someone would have been treated better. Although it may not be necessary to find an actual comparator, it is necessary to show that there is someone to compare with, even if this is hypothetical. Whilst treating everyone equally badly is not recommended and may result in other issues for the employer, it could actually prevent a discrimination claim!

• Families Friendly and Maternity

Maternity Leave

One of the main areas of concern with family friendly policies is ensuring compliance with maternity rules and regulations. Employers have several obligations when dealing with maternity situations and anyone unsure of their position should seek specialist advice.

The broad rights are, however, that a pregnant employee should be entitled to time off for antenatal appointments; there should be suitable health and safety protection for the mother-to-be during pregnancy and when breastfeeding (if applicable), up to a maximum of 52 weeks’ maternity leave, which is made up of both ordinary and additional maternity leave. Maternity rules and regulations also include the right to return to the same job; priority over others when being allocated alternative employment in redundancy cases; and rights associated with flexible working, on return.

Typically, the most asked about area is that of maternity pay and benefits. This can actually be a very difficult area, as it is governed by so many different pieces of legislation, although the main focus is on the Employment Rights Act 1996.

During ordinary maternity leave, which is the first 26 weeks of maternity leave, an employee is entitled to certain rights, regardless of how long they have been with the employer. However, this does not include their right to remuneration. Depending on the length of service, an employee may also be entitled to statutory maternity pay. SMP entitles an employee to 90% of their normal salary for the first six weeks of maternity leave and then a statutory payment for the following 20 weeks. Although the distinction still remains between Ordinary Maternity Leave and Additional Maternity Leave, in reality, since October 2008, employees are largely entitled to the same rights, with the exception of the fact that during ordinary maternity leave, they are entitled to return to their old job, whereas this changes to being a similar job during additional maternity leave.

These changes are subtle, but may be very relevant when it comes to ensuring that all rules and regulations are being complied with.

Flexible Working and Family Friendly Policies

Increasingly, there is also a need to offer and consider flexible working requests. Employees are entitled to request flexible working as part of their statutory rights under the Employment Act 2002. Specific procedures need to be complied with, even if the ultimate result is that a request for flexible working cannot be accommodated. More recently, the right to request flexible working has been offered to all carers, including those with children under the age of 16 years, plus those who care for adults, in certain circumstances.

The actual requirements contained within the statutory requirements are that the employee has the right to request flexible working, that a request procedure is in place and that every employer considers the request, correctly, relying only on a small number of grounds for which a request can be refused.

Employers must ensure that they deal with requests promptly and that they comply with the time frames in the amended ERA Act 1996. For example, an employer is required within 28 days of receiving the request to arrange a meeting with the employee to discuss and then to give a written answer within 14 days of the meeting.

A request for flexible working can be refused on several grounds, including an inability to recruit additional staff or to reorganise the existing staff, or concerns that the quality of the product or service will diminish. This offers reasonable flexibility for employers, provided they follow the correct procedures and make reasonable efforts to accommodate requests.

• Absence from work

Managing sickness absence is another potentially troublesome area for managers, as employees may well take time off ill, at some point during their career. Therefore, having a procedure which is legally robust yet fair and suitable for the workplace needs to be at the top of the management agenda.

Interestingly, there is no specific statutory right to take time off from work in the event of sickness or injury. However, absence leave is generally dealt with as part of the contract which gives it a legal standing. In certain circumstances for example, there is a right to time off, to attend antenatal appointments. But, more generally, the situation has to be looked at from the point of view of the employment contract and ensuring that the employer complies with rules, such as unfair dismissal, on the grounds of ill health.

Despite the fact that there is no statutory requirement to provide time off, it is a requirement under the ERA 1996 to make it clear in the contract which terms and conditions will apply in the case of sickness. Furthermore, there is no right to full pay, when an employee is off work. However, anyone off ill for 4 or more days will potentially be entitled to statutory sick pay, something which needs to be administered by the employer, even if the company does not ultimately bear the cost.

Sickness absence should be monitored and all records need to be kept in compliance with the Data Protection Act 1998.

• Disciplinary and Grievances

Although disciplinaries and grievances are effectively the opposite of each other, with the former being initiated by the employer and the latter by the employee, they are largely managed in a similar way. Following ACAS rules is crucial for employers, as failure to comply with the rules and procedures can automatically mean that the actions of the employer are unfair, even if the underlying reasons are reasonable.

The statutory rules are contained in the Employment Act 2002. The rules need to be followed if an employer is not to be found to have unfairly dismissed the employee, automatically. For example, as part of a disciplinary, the employee should be given: sufficient notice of the disciplinary meeting; the right to be accompanied; and the reasons as to the conclusion reached. The actual small print goes beyond the scope of this article; however, where an employer is acting in a way that any other reasonable employer would act, then they are much more likely to be deemed compliant with the rules.

All employers must have a written process available for staff. Managers should also be trained to ensure that they do not jeopardise the employers’ position, inadvertently.