Employment Law E-Bulletin

June 2007

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This month's cases in detail

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SMOKE FREE:  ARE YOU READY?

As the monumental date draws closer, a recent government survey showed that 90% of those surveyed knew that a smoking ban was coming but over 50% did not know the date when the ban would commence.  As 1 July is almost upon us, if your business has not yet considered the impact that this legislation will have, now is the time to do so. 

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CASES

Dismissal Fair Despite Failure to Offer Alternative Role

In the interesting case of Loosely v Social Action for Health, the EAT has decided that the obligation to offer an employee at risk of dismissal an alternative role is a procedural obligation which falls under Section 98 (A) (2) of the Employment Rights Act 1996. This means that, if an employee fails to take this step but can show that the employee would have been dismissed even if it had done so, then the failure to consider the employee for the alternative role might not result in unfair dismissal.

Potential Result of Explaining the Impact of Litigation

A less helpful decision for employers is that of the House of Lords in the long running equal pay litigation case of St Helens Metropolitan Borough Council v JE Derbyshire & Others which states that writing to an employee explaining what the consequences of their claim might be for the organisation can amount to unlawful victimisation.

Using the Economic Technical or Organisational Reason Defence

The recent decision of the Court of Session in the Scottish case of Hynd v Armstrong & Others has shed further light on the circumstances in which an economic, technical or organisational (“ETO”) reason can be used to justify a dismissal that would otherwise be automatically unfair because it is related to a transfer of an undertaking protected by the Transfer of Undertakings (Protection of Employees) Regulations.

This month's cases in detail

LEGISLATION

As the government has now issued a further consultation paper on Statutory Paternity Leave, we thought that we would concentrate on the government’s proposals this month.

The proposal is that when a mother wants to return to work before her child’s first birthday, then the father will be able to take up to 6 months of the remainder of that child’s first 12 months as paid paternity leave. The leave will be available not just to fathers but also to partners and civil partners of mothers and also to one member of an adopting couple who meet the eligibility criteria. Although the father will normally have a maximum entitlement of 26 weeks paternity leave, if the mother dies within the first year of the child’s birth the government has proposed that the father will then be entitled to take the balance of her maternity leave, even up to the full 52 weeks.
 
This latest proposal will see father’s self certifying that they are entitled to the leave. Employers will not have to check with the mother’s employer but will be able to rely on the father’s application. However, it is proposed that the HM Revenue & Customs will undertake random checks and that fines will be imposed in an attempt to prevent fraud.

The father will be required to give 8 weeks notice of his intention to take Additional Paternity Leave using a special HM Revenue & Customs form. The employer will need to confirm the dates of that leave with the father within 28 days of receiving this notice.  

The consultation ends in August and these proposals may change as a result of the responses submitted but even if they do not, Additional Paternity Leave is unlikely to come into force until April 2009 at the earliest so you will have plenty of time to get ready for the change.

For further information on any the issues featured here or any other employment law issue, call Burnetts on 01228 552222.

June 2007