Employment Law – October 2012

A couple of key employment law changes were implemented on 1 October 2012:

• Pensions auto-enrolment: All employers in Great Britain will be obliged to automatically enrol eligible jobholders into a pension scheme. The new duties will be formally implemented over four years, starting on 1 October, with larger employers being affected before smaller employers and new businesses
• National minimum wage: The national minimum wage rates will increase for workers aged 21 and over and apprentices.

Employment tribunal statistics

The Ministry of Justice has published employment tribunals and EAT statistics for the period 1 April 2011 to 31 March 2012. The report includes the number of claims accepted by the tribunals, as well as maximum and average awards for unfair dismissal and discrimination compensation and costs.

• There were 186,300 claims accepted by employment tribunals, representing a 15% decrease on the previous year
• The average award in unfair dismissal claims was £9,133, while the median award was £4,560. Only 2% of all unfair dismissal awards were over £50,000. These statistics may be of particular interest in light of the current Government proposals to reduce the unfair dismissal compensatory award
• The largest amount of compensation awarded by a tribunal was just under £4.5 million, in a race discrimination claim. The median award for discrimination claims ranged from £4,267 (religion or belief discrimination) to £13,505 (sexual orientation discrimination)

Worker automatically unfairly dismissed for refusing to work more than 48 hours per week

In the case of King v Gurso Plant & Linings Ltd, the employment tribunal found that a worker, who had refused to work more than 48 hours per week, had been automatically unfairly dismissed by his employer.

• On 6 June 2011, Mr King began employment with Gurso Plant & Linings Ltd as a laminator. His normal contractual hours were 40 hours per week. However, at the start of his employment, he worked over 48 hours per week
• In August 2011, Mr King found out from a friend that he was not legally required to work more than 48 hours per week. As he had found working long hours tiring, from mid-August he reduced his hours to no more than 48 hours per week and stopped working Saturdays
• After Mr King had reduced his hours, he noticed that the foreman of the company, Mr Foley, did not speak to him unless it was about working more hours. Mr King later alleged that he had been "under repeated pressure" to increase his hours by Mr Foley, who frequently commented that he was not "doing enough hours"
• In September 2011, the company changed its overtime rate for work on Saturdays from time-and-a-half to time-and-a-third unless a worker had already worked 48 hours in the previous week, which Mr King later alleged, was an attempt to make workers work more hours
• On 28 October 2011, Mr Foley said that Mr King had to start doing more hours and work on Saturdays. Mr King replied to the effect that he was already doing extra hours and was not prepared to work more than 48 hours per week. Following the conversation, Mr King claimed he was called into a meeting with Mr Foley, who said that the company was laying him off. Mr King was given a letter stating that his six-month probationary period was due to end and the company was unable to offer him permanent employment because it felt its "environment may not be the best match for [his] skills and work style". Mr King later alleged that he had challenged the statement that he was subject to a probationary period and asked what the company meant by "work style" but did not receive a reply
• In early 2012, Mr King brought various claims against the company. In particular, Mr King claimed that he had been dismissed after five months' service for refusing to work more than a 48-hour week and for asserting a statutory right to work a maximum of 48 hours per week. Under the Employment Rights Act 1996, a dismissal for either of these reasons is automatically unfair, with no minimum service requirement

The company alleged that it had decided not to extend Mr King's employment beyond his probationary period due to his attitude and aggressive behaviour at work.

The tribunal found that Mr King had not been subject to a probationary period, stating that it was unlikely that the company had "[taken] the precautionary step of informing [Mr King] at the interview that he was subject to a probationary period at all, let alone for a period of six months".

The tribunal preferred Mr King's evidence regarding the events leading up to his dismissal. A grievance letter that Mr King had sent to the company on 4 November 2011 was "sufficiently close to 28 October 2011 to be considered a contemporaneous document" and was "strongly corroborative of [Mr King's] live evidence at the hearing". In contrast, the tribunal said that the company's witness statements which were "substantially rewritten" at the instigation of the company's solicitor immediately prior to the hearing, were inconsistent with each other and the contemporaneous documentation sent to Mr King.

The tribunal considered why, if Mr King's behaviour was as bad as the company had made it out to be, it had not taken any disciplinary action against him sooner. The tribunal noted that the company had not given Mr King any previous warnings about his conduct. Instead, the company had offered him a promotion in July 2011 and, in a letter in September 2011, giving him a pay rise and thanked him for his work. The tribunal found that the company, through Mr Foley, had imposed a requirement on Mr King to work in excess of 48 hours per week and that Mr King was "entitled to rely on the implied statutory variation to his contract" given that there was no valid opt-out agreement in place.

The tribunal found that Mr King had not conducted himself in an aggressive and uncooperative manner as alleged by the company. His change in conduct related to the fact that, from August 2011, he had refused to work over 48 hours per week, which was "not to Mr Foley's liking". The tribunal concluded that Mr King's refusal was the principal reason for his dismissal. The tribunal held that Mr King had been automatically unfairly dismissed.

Practical tips

An employee's dismissal will be automatically unfair, regardless of his or her length of service, where the reason is his or her refusal to work more than 48 hours per week. In other words, they do not have to have the minimum qualifying service to make a claim.

If you want your employees to work more than 48 hours per week, you can ask them to sign an agreement opting-out of the statutory 48-hour week. We would suggest that you check the wording of either the opt-out clause within the contract of employment or an "opt-out" letter to ensure that it is compliant with the Working Times Regulations.

However, it is the employee's choice whether or not to sign the opt-out agreement. If the employee chooses to sign the agreement, he or she must do so voluntarily and without any pressure from his or her employer. Employees may not be dismissed or subjected to any detriment for refusing to sign an opt-out agreement or from withdrawing from the opt-out.

And finally…

Recent research has been carried out in Norway that has show that Facebook and other social media can be addictive. This research may have come too late for one employee.

Recently, the Croatian News reported that an apparently perfect employee had been sacked from her job. She arrived early for work and stayed late at the end of the day. Sounds like an employee dedicated to her work? The only problem was that an audit of IT systems carried out by the company showed that this social media addict had been logged on to Facebook every day, all day for over a year!

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