Employment update: 25 January 2012

In this issue:

• Refusing an offer of suitable alternative employment
• Implementing revised Parental Leave Directive
• Increase in unfair dismissal qualifying period
• Creating a "what you know, not who you know" culture
• Quarterly Employment Tribunal Statistics published
• Age stereotypes - rooted in British society?
• Countdown to the 2012 Olympics - are employers prepared?
• Employment Law Blog
   

Refusing an offer of suitable alternative employment

The Employment Appeal Tribunal (EAT) has confirmed that an employee had acted reasonably in refusing an offer of suitable alternative employment as she had provided a sound and justifiable reason for turning the offer down. Although the Employment Tribunal was of the view that a reasonable employee would have accepted the employer's offer, it had failed to address the question of whether it was unreasonable for this employee to accept the offer. This decision is an important reminder of the issues to consider when assessing whether not a refusal of an offer of suitable alternative employment is reasonable.

In Readman v Devon Primary Care Trust, Mrs Readman was a nurse who had worked in community nursing since 1985. She was informed that she was at risk of redundancy and was offered three alternative roles. One of the roles, a hospital matron position, was considered by the Employment Tribunal to constitute suitable alternative employment. Mrs Readman, however, refused the role on the basis that her career path and qualifications were in community nursing. She had not worked in a hospital setting since 1985 and had no desire to do so. The employer refused to make a redundancy payment, on the basis that she had unreasonably refused the offer.

The Employment Tribunal found that Mrs Readman unreasonably refused the offer of suitable alternative employment. In effect, it asked itself the question whether a reasonable employee would have accepted the employer's offer and concluded that a reasonable employee would have done, rather than asking whether the particular employee was reasonable in refusing it.
 

The EAT confirmed that the Employment Tribunal had made a fundamental error in failing to address the core reason for Mrs Readman's refusal of the offer. They failed to consider, whatever may have been the circumstances of the offer and however easily it may have been for her to re-familiarise herself with aspects of hospital life, whether her basic decision, that she had no desire to work again in a hospital setting, constituted a sound and justifiable reason for turning down the offer. The Employment Tribunal had failed to grapple with the question of whether it was unreasonable for Mrs Readman, for the reasons which she gave, to accept that offer. The EAT confirmed that Mrs Readman's desire not to work in a hospital setting did provide her with a sound and justifiable reason for turning down the offer. The EAT allowed the appeal and substituted a finding that Mrs Readman was entitled to receive a redundancy payment.   

Implementing revised Parental Leave Directive

In 2010, the EU Council of Ministers adopted a new Parental Leave Directive, increasing the minimum parental leave entitlement from three to four months. Member states have two years to implement the Directive into national law, although they are allowed an additional period of one year to implement it, if necessary, to take account of particular difficulties.

It has been reported that the Department for Business, Innovation and Skills has now confirmed that it intends to use the additional year and will implement the Directive in March 2013, rather than March 2012.

Increase in unfair dismissal qualifying period

The qualifying period for unfair dismissal is due to increase from one to two years on 6 April 2012. It has been reported that the Department for Business, Innovation and Skills has confirmed that the new qualifying period will apply only to those employees whose employment begins on or after 6 April 2012. Employees who started employment before this date will remain able to claim unfair dismissal after one year's continuous service. 

Creating a 'what you know, not who you know' culture

More than 100 major British businesses have signed the Government’s Business Compact on social mobility, intended to open doors to people from all walks of life, ending the ‘who you know, not what you know’ culture.

The Business Compact forms a key part of the Deputy Prime Minister’s Social Mobility Strategy, launched in April 2011, which sets out the Government’s determination to ensure every individual is free to achieve, regardless of the circumstances of their birth. Businesses and organisations which sign up to the Compact must agree to a number of objectives, including: 

• opening opportunities to all young people by advertising their work experience places through schools, online and in other public forums, rather than just giving places to informal contacts.
• making access to internships open and transparent, with financial support such as providing expenses or accommodation, or by treating the internship as a job that can be paid under National Minimum Wage law.
• recruiting fairly and without discrimination, and using application forms that don’t allow candidates to be screened out because they went to the wrong school or come from a different ethnic group (including through using name-blank and school-blank applications where appropriate).
   

Signatories to the Compact include:

• nearly 20 major finance firms including Barclays, HSBC and Santander
• more than 10 high street retailers including Asda, Tesco, Sainsbury’s and Marks & Spencer
• 11 well-known consumer brand manufacturers including Coca Cola, P&G and Nestle 

Quarterly Employment Tribunal statistics published

The Tribunals Service has published quarterly statistics for 1 July to 30 September 2011.

The figures show that, during this period, Employment Tribunals received 40,300 cases, a 30 per cent decrease in overall claims to Employment Tribunals, compared to the same quarter of the previous year. The number of single claims decreased slightly, whilst the number of multiple claims went down by 41 per cent.

Age stereotypes – rooted in British society?

According to a recent study from the Department for Work and Pensions (DWP), age-related discrimination and stereotyping remain rooted in British society.

The DWP's Attitude to Age report states that, as life expectancy increases, this will pose a number of challenges to Britain, including age discrimination. The report states that negative attitudes and age stereotypes will leave older people feeling isolated and excluded from opportunities. There will also be a cost to society as well, including the lost productivity of older workers and long term health costs of those excluded from economic activity. The report comments that tackling age discrimination will require strategies that address individual’s assumptions and attitudes about age – both about themselves and others – about a person’s ability, health or rights to services.

The DWP report is timely, given that the Supreme Court recently heard the landmark case of Seldon v Clarkson Wright & Jakes. The case considers whether a rule requiring partners to retire at 65 is a proportionate means of achieving the legitimate aim of workforce planning. The Supreme Court's decision is likely to have significant implications for all employers addressing retirement issues.

Countdown to the 2012 Olympics – are employers prepared?

As employers ease themselves into the New Year, dealing with the impact of the London 2012 Olympics may not be top of the agenda. However, with just under 200 days to go, now is the ideal time for employers to start planning.

Whether employees are ticket holders, volunteers or simply tempted to take a 'sickie', it is advisable for employers to be prepared. There are various factors to consider, ranging from increased absences, flexible working and performance issues. Timed to coincide with the countdown, ACAS has published a short guide, which highlights some of the key steps that employers should take:

• start communicating with staff now about attendance during the Olympics and provide guidelines in relation to requesting leave – e.g. requests could be dealt with on a 'first come, first served' basis. Unauthorised absences may increase during this period, so remind staff of your existing absence/disciplinary policies.
• consider whether to introduce greater flexible working. This may include changes to working hours or allowing working from home, particularly if employees are likely to be affected by transport problems during the Olympics.
• inform employees about the policy on watching coverage of the Olympics on their computers. Employers may wish to provide access to a television for the most popular sporting events.
• consider whether to make specific arrangements for employees who have volunteered as 'games makers' and ensure that any policy is clear and applied consistently.

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