| Employment Update |
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The world of employment law continues to change at a rapid rate making it difficult for both employers and employees to catch breath... Paternity Leave New rights to additional paternity leave have been introduced on the 6th April. The rules are complicated and involve certain criteria for both the mother and father. It is possible however for the father to take a period of up to 26 weeks leave. Previous misconduct in unfair dismissal “Don’t do it again!” In a recent case the Employment Appeal Tribunal held that a previous misconduct for which no formal warning had been issued (the employee merely told “not to do it again”) could be taken into account when the employer dismissed the employee for a similar occurrence. The correct test was whether the dismissal fell outside the range of reasonable responses available to the employer. Constructive dismissal developments “You started it!” An employee leaves his job and claims constructive dismissal on the basis of a breach of trust and confidence by his employer. Can the employer counter the argument by showing the employee was already in breach of trust and confidence? A recent case in Scotland has held that this can be done. A Council Manager was accused of bullying and harassment, and the Council’s disciplinary procedure was invoked. In the middle of this he left, claiming in turn harassment by the Council and constructive dismissal. The Council argued that the Manager’s previous conduct had broken the respective breach of trust and duty between employer and employee. The Employment Appeal Tribunal agreed. How long can an employee stay after employer’s bad conduct and still claim constructive dismissal? “You should have left straight away!" The usual rule is that the employee should leave straight away, otherwise they continue to affirm the contract of employment. However in a recent case some waitresses resigned from a restaurant because of alleged sexual overtures by the owner over a period of 5 years. The recent resignation of a supervisor who had acted as a go-between had however made (the waitresses argued) their positions untenable and they left shortly after this and claimed constructive dismissal by the owner’s behaviour over the 5 year period. The Tribunal considered that the waitresses were in a vulnerable position being young migrant workers who needed the work (and were under financial pressures) and in these circumstances allowed their right to claim. Changes to Retirement Legislation “You have to go at 65” At present attaining the retirement age is a potentially fair reason for dismissal, provided it can be objectively justified. One such objective justification may be succession planning – eg allowing the advancement of younger employees. Note that 6-12 months’ notice to the employee is needed. In October 2011 the default retirement age of 65 is to be abolished, but employers can still give notice under the existing scheme until April 2011. Under the existing scheme the employee may make a statutory request to work beyond the intended retirement date and employers have a statutory duty to consider this, and arrange a meeting, where the employee has a right to be accompanied. If the request is rejected the employee has a further right to appeal. Richard March |
