Inclement Weather; Redundancy; Employment Status: Employee v Worker; Disability Discrimination; Absence Policies and Disabled Employees; and TUPE

Posted in : 'Any Questions' Webinar Recordings on 2 March 2018
Seamus McGranaghan
O'Reilly Stewart Solicitors

'Employment Law at 11' is a new series of webinars from Legal-Island in conjunction with O'Reilly Stewart Solicitors. Scott Alexander, Head of Learning and Development at Legal-Island, dicussed questions on the following issues with Seamus McGranaghan, Director at O'Reilly Stewart:

 

Transcript

Please Note: This is a direct transcript of our recent webinar. It may not read as well as a written article would.

Scott: Good morning, everybody. We’re starting just a minute earlier. I’m sure there are many people are looking to come through this terrible snow, not that there’s any in Belfast, but we’ll come to that in a little minute.

My name is Scott Alexander. I’m from Legal-Island. As usual, I’m joined by Seamus McGranaghan from O’Reilly Stewart. We’re going to go through a number of your questions today. We’ll probably go 45 minutes, so if you have to leave after half an hour, remember, you’ll be able get a stream of this within a couple of hours once we’re finished. We will get a transcript out in a week or two once we’ve had a chance to go through it and make sure they’ve taken out all the “mms” and the “ahs” and all the rest of it.

So, we’re going to chat on. We’ve had a number of questions. We’re going to add an extra element today and that’s we’re going to look at inclement weather on employment rights because we know that’s going to be fairly topical and we’ll get some questions around that at the moment.

So, Seamus, you and I are kind of superheroes. We managed to make our way through the imaginary snow.

Seamus: We’re here today. Yeah.

Inclement Weather

Scott: We managed to make our way through all this snow and inclement weather. There isn’t a drop in Belfast. It’s bizarre. When I came from Lurgan this morning, it was about eight or nine inches high and then you get into Belfast and there’s nothing at all. So, one of the key points to remember, Seamus, about people when they’re trying to get work, it’s really bad weather, particularly today in Northern Ireland, it’s very patchy. It’s hitting some people really badly and others, there’s not a drop.


Q: What advice would you give to employees?

Seamus: Yeah. I think that we were looking at one of the covers of the newspapers there and there’s a photograph showing one place that’s full of snow and the other that looks like a summer’s day. It is very patchy. I suppose that’s one of the first things to watch out for here in the sense that there is a marker between different places.

You may have some employees that have made it into work today and are wondering why their colleagues haven’t made it in. We do have to take into account that it is bad in some place and it isn’t bad in others. I don’t think we can jump to the conclusion that we’ve got a lazy employee or anything like that, just to sort of flag that up at the start.


Q: Are employees entitled to be paid if they are unable to get to work?

I suppose the main thing is I was looking at a couple of websites this morning and this is a really topical issue for today because we’ve had so much bad inclement weather, but the first for the employer is to say the employees aren’t automatically entitled to pay if they’re unable to get to work because of travel disruption. There’s no legal right for staff to be paid by an employer for travel days unless it’s constituted as part of their working time or in some situations where the employer is providing the transport.

It’s really important to look at the contract as well to see what the contractual provisions are. Some employers may have it in the contract or it might be custom practice that they do pay for those days. So, in general we’d say it doesn’t apply but you need to be careful in terms of your custom practice, what your contract is saying. There may be discretionary payments that are made for travel disruption as well. That really is up to the employer to decide what it is they want to do.

But I suppose go back to the staff handbook and go back to the contract to see what it says. I think the second thing is be as flexible as you can where possible. There are other options that you can look at. You can look at the working hours and you can look at the location as to where the employers are working. You may have a number of offices around Northern Ireland. You might have an office outside of Belfast that maybe the employee can go and work in another office for the day instead.

I suppose a lot of it is really looking at measures the employer can take to enhance the employee morale and their productivity and how the employer thinks about handling these sorts of strange circumstances that don’t arise that very often. They are extraordinary. It sticks in the mind of employees. I think it will also stick in the mind of employers in terms of those employees that do go above and beyond and make that extra special effort to try to come into work. There are ways the employer can show its appreciation in terms of doing that.

Scott: It’s strange the way this happened because I know that colleagues at Legal-Island and here in Belfast today managed to make it in, no problem. But another colleague in South Belfast, he couldn’t get out of his yard. I think employers really just have to take cognisance of the fact that if you’re flexible with employees, then you’re a good employer and they’ll want to stay. So, long-term, taking a hard line on something saying, “Get in or you’re not getting paid,” or, “Get in or you’re not getting this,” or, “Get in or we’ll take action,” it’s not really in the long-term interest of any employer to take that line.

Seamus: No, that’s it though. Another important point is use the benefits of your IT. We all have mobiles. We all have smartphones. We have laptops and we have remote access. Maybe for that particular day, the employee can’t get into work, look at the alternative and maybe they can work from home. Maybe there are tasks that they can do.

So, the employer can’t force the employee to come into work if they’re unable to travel. It would be unreasonable. Certainly, you’re looking at health and safety issues and things like that. But you can require the employee to work from home if they’re able to do that and there’s good resources to do it. I think a big part of this is just about planning ahead, looking at what the options are. That goes for both the employer and the employee.

We’ve all known about this bad weather, the “Beast from the East,” as it’s been known. We’ve known about it from last weekend. We knew that it was on the way. What steps do we take in order to try and address this this week where we’re saying, “We know that we’ve got deadlines. We have maybe tender applications or we have things that have to be completed by Friday. Can we look at getting that prioritised and doing that earlier in the week to make sure it’s done?”

A really important point also, I think, is just keeping the lines of communication open. Again, that’s a two-way process. I think where an employee can’t make it into work, there should be a clear line of communication for the employee, number one, to advise the employer why they can’t and second of all, to say, “I can’t make it, but there are things in my desk,” or, “If you’re looking for X, Y and Z, here’s where you’ll find it.” There are those lines of communication. The employee isn’t saying, “Great, snow day, due day, I have no work and I’m switching off completely.” It’s about keeping those lines of communication open, keeping in touch.


Q: What if schools are closed and employees are faced with childcare problems?

Scott: The schools often are the problem. So, at the very last minute, they close and have an impact on parents ability to find childcare.

Seamus: Big impact.

Scott: Some schools are open, obviously, because there’s no snow. Other schools are closed because the bus can’t get up the hill or whatever it happens to be. In those situations, employees have a statutory entitlement to take time off to deal with dependents, but it’s time off to try and make arrangements. If you’ve got childcare and they can’t get to you or they can’t get out of their drive, then the parents really don’t have much option but to take the time off.

Seamus: Of course. And you’re looking at emergency situations where there’s short notice. I know, for instance, yesterday, my sister got a text message from her children’s school at 8:00 in the morning saying, “No school today.” She has no alternative childcare provisions. What does she do? There is that aspect certainly for dependents. They can have unpaid time off. If they can’t make it in because they have no childcare arrangements, then the employer needs to take a sensible view in terms of that as well. Again, it’s back to the employee to make those alternative arrangements, plan ahead and see if there are alternatives that can be done.

I suppose another aspect is that there’s no obligation on the employee to take the day as a holiday, but it may be through negotiations that the employer will agree that the day could be used as a holiday. The employee doesn’t lose out on any payment for that day and they’re using a holiday, so they have one less day they’re taking through the year.

So, there are things that both sides can do in order to try and make this process as easy as possible.

Scott: Maybe we’ll move on. If you have any questions, remember, you can use the chat box. Send a couple of questions in there and we can deal with those. You’re listening to Seamus McGranaghan from O’Reilly Stewart and I’m Scott Alexander. I’m from Legal-Island.

Just to let you know, if you like what you’re listening to and you fancy coming in to see us sometime, we’re going to do an employment equality special on the 25th of April to coincide with the UK Supreme Court arriving in Belfast to deal with the Lee v Ashers Bakery case, the gay cake case, as it’s known. We’ll be looking for your questions specifically on equality issues.

We have room for 12 people here in the boardroom. So, what we’re going to do is go through this kind of workshop that won’t be recorded or broadcast. It will just effectively be a nice breakfast session for people to go through the kind of thinking that goes through Seamus’ brain when we get these questions. You’ll be able to work through the processes yourself.

So, if you have any equality issues and you fancy coming along, let us know. Drop us a line in the chat box or answer the survey afterwards. We’ll be in touch. So, it’s only open to people who listen to these broadcasts, people who are on the webinars. So, if you’re a regular listener and you fancy coming along, meeting Seamus and myself and the rest of the team here at O’Reilly Stewart, then that will be the 25th of April. The breakfast session will be starting at 7:30.

Redundancy

Q: “Could you please provide clarity on minimum redundancy processes to meet legal compliance if only making one to three people redundant?”

The next question we’re going to deal with is on redundancy. The other month there, we dealt with collective redundancies and this question here says, “Could you please provide clarity on minimum redundancy processes to meet legal compliance if only making one to three people redundant?”

Seamus: Well, we’ve seen over the news in the past number of weeks that there’s a number of larger employers within Northern Ireland that have gone through redundancy procedures and there’s a number of them that we’ve heard of. This is slightly different, this question in terms of it’s looking at the lesser number, where you’re making one to three people redundant. What is the procedure that applies?

Probably everybody’s familiar with closing departments down or if there’s an element of the business that’s closing due to whether it’s an economic or trade or what it is. These ones tend to fall in to more sort of the organisational issues where you have a reorganisation within a department and there’s a loss of a smaller number of employees that is taking place as well as straight out of the box, we know that we don’t have the longer consultation periods that have to happen.

There isn’t a time period in the legislation for that consultation period, but it does need to be a reasonable consultation and I suppose that I’m going to go through a number of points that are on my mind in terms of what we need to address and it’s making sure that you are providing adequate time to deal with those and that that’s a reciprocal situation whereby although you’re meeting with the employee and telling the employee what the circumstances are, that you’re also listening to what the employee has to say and taking on board their suggestions and other alternatives too.

Scott: And those situations, Seamus, that’s akin to, if it were a dismissal, for, I don't know, a discipline or something, you would have an investigation first. So, in this situation here, you really ought to have an investigation of sorts. So, is there a way to avoid redundancy because if there are less than 20 redundancies, the 123 procedures apply, a statutory dismissal procedure applies to dismissals in Northern Ireland? Not in GB, but in Northern Ireland, they do.

Therefore, if you fail to write to the person to say their job was at risk and you failed to have a meeting about that potential termination and you fail to give them the right to appeal, it’s automatically unfair in Northern Ireland.

Seamus: That’s correct. You must use the statutory disciplinary procedure and that always raises the memory in my head of the redundancy issue that I dealt with in the tribunal and I remember the tribunal judge saying it was always a suspicious scenario from the tribunal’s point of view whenever you were only making one person redundant because I suppose there’s a bit of scepticism around how that redundancy has come about, but certainly, you must use the statutory disciplinary procedure.

Just as a side issue in terms of that, remember the right of accompaniment for the employee. This is a formal process and there is a right of accompaniment for the employee to bring their [inaudible 00:12:50] representative or their workplace colleague. Coming back to what I was talking about before, the redundancy must be genuine. You’re really looking at what’s the true reason here.

Is it a circumstance where we are bringing about a redundancy because we’re not happy with the employee, because an issue has arisen in terms of personality clashes or there is a performance issue that we don’t want to deal with and we’ll push it through as a redundancy? My view tends to always be make sure that the redundancy is genuine because where it’s not, you tend to get called out. The truth comes out somewhere along the line and you don’t want that to happen at a cross-examination stage at the tribunal. So, look for the redundancy to be genuine.

Again, general advice - the process must be open and transparent. You should be open to all ideas the employee has and you should be keeping the process as transparent as possible as well. Listen to what the employee has to say. Consider their suggestions and their alternatives.

Before you get into any compulsory scenario, you should be looking at voluntary redundancies before implementing that process or asking for comments in terms of the ways to avoid a redundancy. I’m flagging this about identification of your pool of employees. I accept the fact the question is around one to three people, but that still may require you to form a pool and making sure the pool is correctly formed.

That’s one of the more tricky areas when it comes to redundancy. Then it’s looking at the fair selection criteria to that pool and making sure the selection criteria is fair, that it’s balanced and that you’re not discriminating. That’s an important aspect when it comes to redundancy because a lot of indirect discrimination can take place and direct also, but in terms of putting the policies and procedures together for selection, sometimes that can come into play.

Scott: So, ordinarily, you’d look for volunteers because if somebody volunteers, they really don’t have much of a claim against you.

Seamus: Yes.

Scott: But you retain the right to reject that application.

Seamus: Yes. It comes down to the needs of the business.

Scott: Absolutely. One of the other things, of course, is that it’s difficult. You’ve said it’s difficult to get it right when you’re weighing up, “Do we need this person? Do we need that person?” You’ll have people who have multi-skills. It’s all very well saying we’re going to make a particular position redundant, but that position is held by a person who may have skills that can work in another part of the business and therefore how wide do you make the pool when you’re looking at it? The chances are an employer, if you’re maintaining the business, you’re not closing it down or not closing a whole unit, the chances of getting it wrong are pretty high.

Seamus: They are indeed.


Q: Would you advise a compromise or settlement agreement?

Scott: It’s probably advisable to do some kind of compromise agreement or a settlement agreement through the LRA.

Seamus: Yeah. I think the main thing about redundancy that strikes me is that it’s very emotive. You hear lots of talking around it’s not you personally. It’s the post that we’re dealing with when it comes to redundancy. But for anyone that’s made redundant, that’s not how it feels. People can take these things incredibly thick and really, it does become a peripheral issue. They’re losing their employment.

Certainly, I would advise clients in the past that want to bring claims for fair dismissal via redundancy and even when you look at the procedure and you say the procedure is pretty sound here, there’s all the tools that you can pick. So, there is the assistant that you can have in terms of looking to compromise the claim, obviously with a compromise, you’re maybe paying above and beyond what the statutory redundancy calculation would be or alternatively, you can look at the compromise by assistance with the Labour Relations Agency, which is sometimes the better way to go down.

Scott: That takes away their right to continue any claim. It keeps the employer safe and it maintains the security of the payment, if you like, for the employee as well.

Seamus: Exactly.

Scott: And you can do things like agree any references and all that kind of stuff.

Seamus: Yes. There’s lots that you can do in the compromise agreement or a settlement agreement if you’re in England, but a compromise agreement here that a tribunal can provide for an employee. So, there’s certainly a benefit to the employee in terms of what the employee can achieve and get out of the process. Essentially, what you’re doing with the compromise agreement is you’re contracting the employee out of the claims that they’re bringing.

As you know, under a compromise agreement, the employee has to be independently advised by a lawyer and the lawyer has to sign to say that they’ve provided that independent advice. So, it’s a failsafe for the employer. Certainly, if the employer wants a smooth, clean exit—I almost said Brexit there—but a smooth, clean break and doesn’t want any fallback or doesn’t want the hassle or the concern that in three months’ time, I’m going to get an ET1 from the tribunal, that’s certainly the best way to go down.

Just a couple of other points on that—obviously, whenever you’re looking up redundancy, you’re still doing your best for the employee. You’re giving them time off in terms of attending job interviews or going down to the local job centre in order to seek employment or if there’s training that can be provided, some employers will provide assistance in terms of outplacement. Outplacement could be helping the employee write their CV or alternatively giving interview skills and things like that.

So, there are things the employer can do there. Importantly, for me, what stands out is complete your consultation period before you confirm the redundancy. It’s a mistake that I see happening over and over and over again with employers. Complete that consultation, take everything into account and make an informed decision at the end of that before declaring their actual redundancy.

Scott: Again, importantly in Northern Ireland, not so important in England, but certainly important in Northern Ireland is that when you invite the person in for the meeting, you should not have made the decision that they’re going. It should be you could be going because if you’ve already made your mind up, it’s automatically unfair and you’re looking at, because you’ve breached the procedures, a potentially 50% increase of any award.

Seamus: Absolutely. The tribunal do have the authority to increase up to the 50% and in some circumstances where they see the employer has deliberately taken steps like this, they will punish the employer in terms of it. The other aspect is make sure you’re paying all the entitlements the employee is entitled to. You’re looking at their redundancy payment, whether that’s the statutory redundancy or whether there is an enhancement package within the contract even.

Their notice entitlement and their holidays, their bonus and then obviously the last area is make sure that you offer the right of appeal. There can be too much of a wiping of the brow to get the process complete and people forget about the last stage in terms of the appeal. So, it’s really important that you’re remembering the simple three stages. This is a dismissal and it requires the statutory procedure to apply to it.


Q: “Is there anything we can do as an employer - we have an employee who seems to take two or three days off every month and cites dependents’ leave?”

Scott: Okay. Seamus, we’ll go back. We’ve got a question there on the chat box about dependents’ leave. The question asked, “Is there anything we can do as an employer—we have an employee who seems to take two or three days off every month and cites dependents’ leave?”

Seamus: Well, I suppose you need to be careful. My advice would be that you meet with the employee to discuss what the circumstances are. What is arising that’s requiring this dependence leave? If there are repetitive issues that are arising as in the babysitter has let us down or the person that looks after them, what’s the contingency plan? Sit down with the employee and work through that process. What are the alternatives here? Think what you’re looking to explain to the employee, yes, there is the element within the legislation and the rights for dependence. But it does still cause the business difficulties. It does still create problems in terms of the business and . . .

Scott: Getting some kind of coverage or notice.

Seamus: Exactly and doing all those steps. So, again, look to maybe come back to the process of planning ahead, find out what are the issues here. What can we do to try and resolve this? Are there steps the employer can take in order to assist the employee when this happens? Also, looking at things like if there is both mom and dad at the house and it’s a child that is sick, for instance—I’m using this as an example—you might have a situation where there is only mom at home or there is only dad at home, but there might be a situation where you find out that both are there and Dad doesn’t really need to take the day off because Mum’s there to look after the child.

Scott: Or the other way around.

Seamus: Exactly. So, where it’s repetitive like that, certainly, it warrants investigation. I don’t think that as an employer, you should shy away from that.

Scott: I think what’s behind this question is that the individual, having cited a statutory protection, is saying, “If we take any action against this person, they’re going to turn around and say you’re dismissing me because I have tried to enforce a statutory right.”

Seamus: Yeah.

Scott: So, you have to be clear that if any action is taken, that it’s the absence that’s the issue, not the fact that you’ve asserted the right to take time off for dependents. It’s the fact that it’s continually causing you problems. But there is this element that if you get it wrong as an employer, it’s going to be automatically unfair because the person is enforcing or asserting a statutory right.

Seamus: Absolutely. You need to be careful about those conversations, that whatever you’re investigating and getting to the bottom of what the issue is that the employee is not left feeling, “This is the reason why they’re angry and therefore, I’m being punished because of the circumstances.” So, you do need to be careful about how you address that.

Certainly, I’ve had cases in the past where for instance, the employee comes in to say, “My mother or father has been struck down with an illness. The prospects are not going to be good here. I’m going to need a period of time off.” The next thing is that they’re dismissed and it’s leaving the person feeling, “That’s the reason. What’s the true reason again for the dismissal here?” It leaves the employer exposed. So, the employer is entitled to make those investigations, is entitled to have those discussions, but it’s just about the presentation and how that’s dealt with.

Scott: A lot of that comes down to the relationship between the employer and employee and if it’s a good one, the employee will be up front with the employer. If it’s a bad one, there may be some other reason. They keep citing dependents, but it may actually be there’s some domestic abuse or something hidden that they don’t want to share.

Seamus: That’s what happened to getting down to what the issue is. Absolutely.

Employment Status: Employee v Worker

Q: How do we distinguish between a worker and an employee?

Scott: The next issue we’re going to look at employee against workers and self-employed contractors. The Taylor Report was out and, of course, there was the publication of the response to the Taylor Report consultation that was just done. You’ll find it on the Legal-Island website, folks, if you want to have a look at it. This question here, “Please give a clear rule of thumb on distinguishing between a worker and an employee. We are still wrestling with this one and why does it matter so much, whether you define somebody as an employee or a worker?”

Seamus: I suppose it’s the issue that you walk into in any place of work. There could be a natural assumption that everyone there is an employee because maybe they’re all doing the same job. They are all acting in the same manner and there’s an assumption that they’re all employees. I suppose the big difference is there is a distinction in law between the employee and the worker. There are different rights that apply to each of those.

So, maybe if we look at the employee to start with, generally what you’ll be looking at with the employee is that there will be a contract of employment. That will be personal to the employee and that will set out what the terms and conditions are of the employment. It will set out the pay, the annual leave and the working hours and the things that are agreed between the employer and the employee.

This was an important point to flag up there is that although you’re required as an employer to provide a written contract of employment to your employees and certainly under article 33 of the Employment Rights Order in Northern Ireland here, you’re due to provide that within two months of the employment commencing. Just because there isn’t a written contract of employment doesn’t mean the person isn’t an employee or there’s not a contract there. You can have an express employment contract and then you have an implied one as well.

So, if I’m working for you, Scott, for a period of six months and I know what my terms and conditions are, those are not written down. I know that I come to work at 8:00 in the morning and I work to 6:00 in the evening because you’re a hard task master. I’m aware of when my breaks are, what my holidays are, what I can and can’t do, where I have to be.

There’s still a contract there in place. What you’ll see with the employees are, they’ll have a lot of rights. We look back at the Employment Rights Northern Ireland order, it will set out those rights. So, there will be general things that all employees and workers are entitled to—the contract of employment, the pay slips, the national minimum wage, holiday entitlement, maternity/paternity.

Scott: All the Working Time Regulation stuff applies to this European term ‘worker’, the discrimination laws all apply to workers, unfair dismissal doesn’t. Redundancy, we were just chatting about it, it doesn’t apply to workers. It applies to employees. So, you wouldn’t get redundancy payments for workers. So, you have this situation where a full employee, you know what it looks like.

It’s like most of us, whether there are written terms or not, we still have a contract. We still have to turn up. There’s obligations on us to turn up. There’s obligations on the employer to pay us. That happens with workers too. The difference is that I suppose some workers may not have the mutuality of that obligation and the employer may not have to give them the work all the time.

Seamus: Yes.

Scott: Or they may have the right to refuse every once in a while.

Seamus: Yeah. That’s really what it comes down to, where we’re looking at the differences. If you’re looking at the rule of thumb, I know you can go to HMRC website and you can do their test that they have on there to decide whether you’re an employee or a worker.


Q: And what about self-employed contractors?

Scott: Or a self-employed contractor as well.

Seamus: Yes, self-employed contractor. Nine times out of ten, I think no matter what information you put in there, it will come out and say you’re an employee. So, it’s a test that you can’t think, just have a ticked box exercise. Do you really need to look down and see what the terms are of the engagement?

The difference really comes down to the three elements of the contract, one is mutuality of the obligation and the second is control. The mutuality of obligation or success for the employer undertakes a person working and that person agrees to do the work in turn for their salary or for their wage. They do it on the terms laid down by the employer. The control element exists where the employer decides the when, where and how the work is done or the matter in which it’s to be done in.

Different for the temporary worker or for the worker, they are not employees if they’re free without any penalty, without any potential disciplinaries, to accept or reject any off of employment made to them. The control element, that only works or is there whenever the worker is in place because whenever they’re doing the work, they’re working under the control of the employer. They’re doing what the employer tells them to do. It’s the ability to reject an offer at will without any penalty which distinguishes the worker from the employee.

Really, what it comes down to is that element of being able to say, “Thanks, but no thanks,” where the employee doesn’t have that choice, the employee knows that it’s Monday to Friday and that’s the working hours. If they don’t attend, then they’re in breach of their contract. Where the employee or the worker has the ability to say, “No, I don’t want to work that day,” and there’s no penalty there that can be given.

Scott: And a self-employed contractor is somebody who’s really out on business for themselves and they do their own tax, national insurance or whatever. They might not even pay national insurance, but they do their own tax returns and write certain things off against tax. They have their own tools. They have their own equipment. They would tender for work, perhaps, to make it clear. A worker is that kind of hybrid. It’s in between self-employed and employed. Because it’s in between, they can’t be one thing or the other.

Dependent on where they are, they get more rights or fewer rights just depending on what the jurisdiction is. But the difficulty is until the law changes - as I remember it, there’s something in the ’96 Order that allows the Secretary of State, I think, when it was first written, but it allows the minister, if you like, to determine that you shouldn’t have this category of worker. They can actually transform them all and turn them all into employees. It was never enacted.

Seamus: I think that frustrates people. Certainly, examples of the worker that we can give include the casual worker, the agency worker, the zero hours contractor, which is always the big controversial area.

Scott: Huge cases at the moment—Pimlico Plumbers was there [at the Supreme Court]. We’ve got all the Uber cases, Deliveroo, all those things have gone through because the argument is they’re so-called self-employed, but they’re much closer to this worker, this hybrid than they are—they’re clearly not full employees, most of them, but because they’re workers, they’re looking for holidays and time off and breaks and all the kinds of things that . . .

Seamus: Exactly. And they were going for equal treatment.

Scott: Equality of treatment effectively as a worker. It means that if they’re self-employed, they don’t get those things.

Seamus: No. There’s a clear distinction there. I think we can all point to the self-employed plumber that we bring into our home and does some work in terms of that. We know that they’re not our employee whenever they come into that.

Scott: They’re not a worker either. They just happen to be there to do some work.

Seamus: They have a choice if they want to stay or go. We don’t worry about any aspects of tax for them or making deductions from any moneys. It’s all over to them in terms of that. But it comes down to that aspect of being able to say yes or no to the work essentially is what it is, what you’re looking at.


Q: At the time a redundancy selection was made, the employer was unware the employee was pregnant - as pregnant workers have protections, is there an obligation to retract that redundancy or at least revise the process?

Scott: Okay. We’ve got another question coming in in the chat box that goes back to redundancy and other protections, Seamus. It’s effectively the employer has made somebody redundant and that employee has turned around and said, “I’m pregnant.” At the time that the redundancy selection was made, they didn’t know, but is there an obligation because pregnant workers do have protections, is there an obligation then to retract that redundancy or at least revise the process?

Seamus: No. There’s no obligation to retract the redundancy. It’s a genuine redundancy circumstance. The employer has put the notice of the redundancy out there. Again, you’re on notice at this point, no one has been dismissed at this noticed. But you do, obviously, as the employer, have to treat the employee that’s pregnant or on maternity leave in a different way, particularly when it comes around to what are the available alternative works that are available within the organisation and their entitlement for priority in relation to those.

But just because someone is pregnant or on maternity leave, it doesn’t give them an automatic right not to be made redundant. A genuine redundancy circumstance, it is applicable. What changes is just around the consultation aspect of that.

Scott: And the alternative employment.

Seamus: They might get the nod on alternative employment because you’re trying to protect this worker.

Scott: Yes. There was a case in the weekly review email if you subscribe to the email service from Legal-Island, there’s a case on collective redundancies and pregnancy that was published today from the European Court of Justice, so you can have a look at that again, the protections for pregnant employees are very limited when it comes to collective redundancy situations as well.

Disability Discrimination

Q: How do we dismiss an employee where the DDA 1995 applies?

Let’s move on to another discrimination area, if you don’t mind, Seamus—disability discrimination. Could you explain how to dismiss an employee even where the Disability Discrimination Act of 1995 applies in Northern Ireland?

Seamus: Where it applies? Well, obviously, the employer needs to be careful when they’re dealing with any employee who has a protected characteristic, so, whether it’s their disability or their sexual orientation or whatever it is. The protected characteristics, there’s a sort of flag up there in terms of saying we need to be careful how we go about this. There are various ways for an employer to dismiss an employee, but I think this question is really focusing down on the potential dismissal, where the employee is aware that there is a disability and awareness is an important point.

Scott: Okay. So, let’s assume the employer knows this person is disabled. What do they have to do in particular in relation to a disabled employee that they wouldn’t have to do in my case, say?

Seamus: Well, essentially, when the employer knows the employee is disabled, they’re potentially being disadvantaged and the employer has a duty under the DDA to make reasonable adjustments to remove that disadvantage and essentially assist the employee in remaining in employment. If the employee is dismissed because the employer has failed to make the reasonable adjustment, it’s going to be a case of disability discrimination.

So, really what you have to do is look at what reasonable adjustments can be made here in order to facilitate this employee. The types of things that we’re talking about, just to mention that, would be if the employee could have maybe lighter duties or look at a different role for the employee, maybe flexible working for that employee or making adaptions to the workplace is another one, obviously, or providing sometimes specialised equipment for the employee to be able to do the job.

The reality is and the bottom line, I think, is if there is a high threshold here that you do have to consider other reasonable adjustments that are possible. If you do all of that and none of them work, then you’re at the point where it’s going to be fair to dismiss. But you must help them through that process where you’ve looked at the reasonable adjustments and teased out whether there is a possibility of these assisting the employee.

Scott: I suppose there’s a difference between a long-term ill health dismissal when it isn’t a disability dismissal. It’s that you don’t have to do the reasonable adjustments, but you still have to look at all the alternatives. It’s very similar to saying, “Is there anything I can do to that can save this person’s job and make them able to do this job?”

If they’re not able to do the job, they’ll be dismissed. If they are, by making those reasonable adjustments or some kind of an accommodation, whether it’s long-term sake or whether it’s defined as disability, then the employer has to consider those. If they consider them and then reject them because they’re not practical, that’s okay, but if they don’t consider them at all, there’s a very good chance you’re going to lose your case.

Seamus: Absolutely. The thing is as well that there’s various steps the employer can take. In terms of the workplace environment, they can bring in an occupational therapist. They can look at the desk. They can look at things like the access and all those sorts of issues.

A lot of the time, what will happen will be that the person will be sent to occupational health or the specialist consultant will be asked is there any possible adjustments can be made. Really important to meet with the employee and discuss those with the employee. There’s no point to the employer dreaming all this stuff up in their head and deciding it. They have to consult with the employee about it and be sensible about what might and what might not work for them.

One other point that I just wanted to mention is that if the employer dismisses the employee because of something that’s connected to their disability, that also could be disability discrimination on the basis that it’s arising from their disability. So, really, the employer has to look to set about justifying and showing the good business reasons for the dismissal after they’ve applied these reasonable adjustments and that there’s none of them that could be facilitated for the employee.

It certainly is a tricky one. When it comes down to conduct, I suppose I just want to maybe mention as well that when the conduct is a problem and the conduct is as a result of the disability, again, you’re going to have to look at reasonable adjustments in terms of the employee. It’s not just sufficient to say, “Well, you’ve done this. So, you’re under our policy and procedure. That’s gross misconduct and you’re dismissed.” You really do have to give consideration to and have cognisance, I suppose of the disability, the reasons that might be impacting upon the conduct and apply those reasonable adjustments again.

Scott: Okay. Ironically, you’re chatting about reasonable accommodation and reasonable adjustments in technology and I believe one or two people might have difficulty with the sound if they’re in internet land. So, we will blame that on the “Beast from the East.”

Seamus: Okay.

Scott: We’re going to blame that on that. If you are listening, when we were testing this beforehand, everybody, there was no problem at all. If you’ve had difficulty with anything, you can always go to the streaming that you’ll get after this and you can always check with the text that we’ll have. We’ll get a transcript and you’ll be able to go onto the website. There’s a section on the website that you can access all of those:
https://www.legal-island.com/resources/any-questions-webinars/

Absence Policies and Disabled Employees

There was a last disability case that came in. I think we dealt with it a month or two ago there and it’s how you differentiate the absence levels for someone who’s disabled. How long is that piece of string there? So, you’ve got a disabled person who’s going to have more absences than a non-disabled person, but you’re trying to apply an absence policy that’s similar to what you’ve said. Are there reasonable adjustments that can reduce that? But if not, it’s not that you have to discount every single absence from a disabled person?

Seamus: No. That’s it. Again, it’s about being reasonable. Before you know that you have an employee, for instance, that is going to be late for work because they have an issue and they have a condition that flares up in the morning and takes them longer, the reasonable adjustment would obviously be to say, “Rather than start at 9:00 a.m., we’re going to provide you with a shift restart at 10:00 a.m. or 11:00 a.m. or something along those lines.”

So, it’s looking about how to facilitate the employee. I know within certain contracts, there will be triggers for so many days’ absence under the automatic triggers. It’s almost as if employers feel that once these triggers are hit that they have no alternative but to sanction and to penalise and go through disciplinary processes. I suppose you do need to look at the reasonable adjustments for an employee that is absent because of a disability.

Scott: There’s no set level, that’s the problem. Take each case on its merits. You’ve got to consider what might work. It’s not just looking at the absence level. It’s can we do anything that can reduce it? If the absence keeps going on and on and on, the reasonable accommodation won’t work.

Seamus: No.

Scott: Therefore, you can well be looking at dismissal.

Seamus: You could be. It’s about getting in there early. It’s about identifying the issues and really applying your mind as to what solutions we can find for this. But again, it has to be through consultation with the employee.

Scott: Okay. We’re going to move on to a final subject. I don’t think we’ll get through the last couple. We’ll hold them over. Again, if there are other questions, if you click on the link that you’ll get afterwards and send us some questions, we’ll get through as many as we can. Keep in mind, we’re doing a special equality update here in the office. There’s 12 places if anyone wants to come along. It’s on the 25th of April to coincide with the Lee v Ashers Case being heard by the Supreme Court in Belfast.

TUPE

Q: Can you provide guidance in a TUPE service provision change scenario?  

We’re going to move on to TUPE, a service provision change. There’s a quite complex question that came in here, but I’ll try and bring it down to shorten it a little bit. How do we agree “measures” in a TUPE service provision change scenario? For example, under the information and consultation requirements, we’ve got to give a lot of information, the fact that’s happening, socioeconomic things and so on.

The bottom line here is the outgoing employer must provide information about various measures. The incoming employer has to do pretty much the same. But the two contractors aren’t speaking. They’re going and the old contractor wants the business but doesn’t want the new one to get it. So, they’re not providing the information. What would you advise the contractors here?

Seamus: Well, I think the bottom line is that there’s no alternative to the TUPE provisions and those that we find in the legislation that covers on TUPE. The bottom line is they apply. We have no alternative. We need to get on with it. My view on that is there are two options for the employer. One is if you’re not happy with the loss of the contract, you can seek to challenge that through the court system.

If you’re not prepared to seek challenge on that, you need to accept the position that you’re losing this contract and you need to get on board, get on the train in terms of filling your obligations under TUPE, whether that is providing the due diligence information and the employee information across to the new employer.

If they’re not playing ball with you, remind them that you’re giving them the information and if they don’t comply, there will be serious consequences in terms of penalties that can be issued, tribunal claims and ultimately if you’re fulfilling your end of the job, you’ll be warning them in terms of the fact that you might end up having to sue them in terms of [inaudible 00:43:28].

Scott: There’s joint and several liability there. Both employers, the outgoing and the incoming can be held liable under TUPE for failing to do this. But ultimately, if it’s an unfair dismissal claim and somebody refuses to take on employees, it’s going to be the incoming contractor, if TUPE applies, who will have all the problems. If it doesn’t apply and sometimes you’re never going to, then it’s going to be the outgoing employer.

The bottom line is it comes down to the contract that was agreed by the contracting employer, if you like, or the person who needs the service. If they’ve written it correctly, they could have required incoming and outgoing contractors to provide this information or suffer penalties.

Seamus: Exactly. That’s what it’s about. I think that where there is an issue and you’re not going to challenge, you need to take the reins and hold up your end of the bargain, comply with your obligations in the legislation and warn the other party about the risks of not engaging and the liability of that.

Scott: Apart from that, what the outgoing contractor should do is send over all the rubbish employees. Is that what you’re trying to tell me? I would get rid of all the dross and keep your good ones.

Seamus: Absolutely. Certainly, I know from my own experience working with my clients, that’s what it can feel like when the client is overjoyed to obtain a contract and they forget all about the fact that they’re going to have to take employees with it. The next thing is that the suspicious antenna is up and they’re thinking we’re getting all the bad employees, all the late employees, all the poor performers, all that kind of stuff.

It’s really important as to why whenever you get your employee information that you do start to go through that with a fine-tooth comb and you are looking and you’re asking the questions that you’re entitled to ask and you’re looking for details in respect of disciplinary screens that have been raised, their salary, the bonuses that they have been paid, pension details, their working hours, their start commencement dates, if they’ve left and if they’ve come back. All of that information is really important.

Scott: That’s because the employees transfer across. Finally, this question here is talking about affected employees. The people who are affected by TUPE include the incoming contractors’ existing employees and if there are redundancies that have to be made because there are too many employees around, then that could go back to the question we had about redundancy earlier, that pool includes the incoming employees from the outgoing contractor and they also include the incoming contractors as if they’re employees. That’s the pool. It’s not that you can get rid of all the new guys.

Seamus: No. I mean, you’re opening yourself up there to—there’s unfair dismissal claims and then there’s a separate claim that the employees can take under TUPE and there’s a certain penalty if their team makes it that the tribunal can impose if that process hasn’t been correctly followed in terms of it. Really, you want to get on board. It’s an interesting one just in terms of I know we’re coming to the end when it comes down to that type of redundancy because there’s lots of the TUPE legislation that you can’t actually contract out of and it leaves you exposed.

My experience with these types of cases tends to be that it tends to be a bit of a hotpot of everything thrown in at once and through discussions and consultation, you get to the point at the end where you’re hopefully getting the correct employees that are supposed to be transferring across under the legislation, but accept that there’s a number of these cases that are very complex that end up before the tribunal.

Conclusion

Scott: Okay. If you have any complex questions, you can send them in or contact Seamus directly. You should have his details, Seamus.McGranaghan@OreillyStewart.com or you can write to me, Scott Alexander at Scott@Legal-Island.com. We’ll see you next month.

Remember, we’ve also got the special as well as the one at the beginning of April, which we’ll have online. We’ll also have the breakfast session on equality if you want to come along to O’Reilly Stewart on May Street here, then we’ll see you on the 25th of April. Okay. Take care, folks. See you soon. Bye, bye.

This article is correct at 02/03/2018
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Seamus McGranaghan
O'Reilly Stewart Solicitors

The main content of this article was provided by Seamus McGranaghan. Contact telephone number is 028 9032 1000 or email seamus.mcgranaghan@oreillystewart.com

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