In this newsletter we look at several key recent legislation updates surrounding dismissal, and also look at rolled up holiday pay for Casual Workers.
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Care needed over dismissal timing when employee approaching two years’ service
The EAT has confirmed for the first time that an employee dismissed for gross misconduct in the week prior to accruing two years’ service will not gain unfair dismissal protection provided that the tribunal agrees that they have indeed committed gross misconduct. However, if the tribunal disagrees, the statutory minimum notice period will be added to the actual service in calculating eligibility to claim unfair dismissal. Earlier case law establishes that the termination date is also extended by statutory notice if the employer dismisses by making a payment in lieu of notice, so it is prudent to consider carefully the timing of dismissals of employees approaching their two-year anniversary.
Employers should offer internal appeal
The case of Afzal v East London Pizza Ltd t/a Dominos Pizza highlights the importance of offering a right of appeal against dismissal. In that case the employer was justified in urgently dismissing an employee for failure to provide evidence of his continued entitlement to work in the UK on the basis that it genuinely believed that his employment was illegal. However, the tribunal was wrong to conclude that the dismissal was necessarily fair, given the employer’s failure to allow an appeal. Had an appeal been offered, the employee would have had an opportunity to produce evidence of his right to work and the employer could then have rescinded the dismissal without fear of prosecution or penalty. The case was remitted to a fresh tribunal.
Poor communication of successful appeal could itself amount to constructive dismissal
The Court of Appeal in Patel v Folkestone Nursing Home Ltd has confirmed that where an employee’s internal appeal against dismissal is successful, the effect will be to reinstate the employee with retrospective effect. The earlier dismissal will ‘vanish’ without any need for the employee to ‘accept’ this, preventing the employee from claiming unfair dismissal based on the earlier dismissal. However, in this case the dismissal had been based on two charges of gross misconduct, the second of which would have resulted in a reference to the Disclosure and Barring Service. The employee’s appeal was successful on both counts, but the letter confirming the decision only addressed the first charge. The Court considered that the failure to communicate the decision on the second charge and to confirm that no reference would be made to the DBS was arguably a breach of trust and confidence which might amount to constructive dismissal (an issue remitted to the tribunal).
Operational Managers are key to a Company’s success, and how they work with and manage their teams is an essential part of this. We provide the following training courses to help Managers deal with issues and people correctly to enhance your business.
• Managing Discipline & Grievance
• Managers Guide to Handling Stress
• Influencing Styles and Persuasive Negotiating
• Managing Conflict
• Managing Performance
• Managing Attendance
• Managing Recruitment and Selection
All of our courses can be tailored to suit your exact needs and delivered at your premises if required.
Our1 day Managing Absence course is designed to guide and support managers on how to:
• The impact of absence on the individual and the organisation;
• Investigating the reasons for absence;
• Managing short and long term absence;
• Foster good attendance, promoting employee health and well-being;
• Promote shared experience and knowledge of attendance issues through open discussion;
• Enabling managers to be proactive in addressing attendance issues in a supportive, sensitive and effective way to minimise the impacts on performance;
• The law on holidays, and other legal entitlement to time off;
• Clarifying what Managers need to do about holiday pay.
The course will help managers recognise and understand their role and responsibilities in effectively managing attendance and understanding the benefits to their organisation in being proactive when dealing with attendance related issues. It will also guide managers through the statutory requirements and current legislation, stating the importance of record keeping and correct implementation of attendance policy procedure.
More details on each of the training courses can be found on our website.
We have established key partnerships to enable us to provide a rounded ‘people’ solution to our clients, including:
• Occupational Health services;
• HR Software.
• Health Insurance and Staff Healthcare Benefits;
We also have a number of other Associate Partners whose services we have used ourselves and also recommend, covering:
• Legal Services;
• Financial Services;
• IT services;
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and more. Visit our website to see full information on our partners and services.
Helpful Hints & Tips – Rolled Up Holiday Pay for Casual Workers
A Casual Worker accrues holidays at the rate of 12.07% of their hours worked. Some employers take the approach of paying the casual worker for this accrued holiday, i.e. paying extra pay on top of the casual workers hourly rate, instead of giving the casual worker paid holiday leave. This is known as ‘rolled-up’ holiday pay.
Although the Government and ACAS recommend employers don’t use rolled-up holiday pay, it’s legal if the employer does it clearly. For example, an employer can’t say an employee will be paid £8.78 an hour which includes rolled-up holiday pay. An employer must say an employee’s basic hourly pay is £7.83 per hour and in addition to this they’ll receive £0.95 per hour rolled-up holiday pay. The employee’s payslips must show the amounts separately.