Angry words or actions can leave both employer and employee unclear of their impact on the employment relationship. In a recent case, according to the employer, he said to his employee:

“Get out, this argument has got nothing to do with you.”

According to the employee, the words spoken were:

“Get out, leave and don’t come back.”

There was no further contact between employer and employee. The employer considered that there had been a resignation. The employee considered that he had been dismissed. The Employment Appeal Tribunal considered that their actions (or inactions) were consistent with either.

Lesson:

Clarifying any ambiguity can avoid litigation. Where things are said or done “in the heat of the moment”, employers should always try to write to the employee, to confirm its understanding of what took place. So if an employer believes that the employee has resigned, it should write to the employee, saying so.

Case: Dalitis v Plissi [2008]

Contacts:

Employment Department

Raj Dhokia: r.dhokia@fgdlaw.co.uk

Workers on sick leave for the whole leave year are entitled to 4 weeks’ paid holiday. Employers can decide whether the holiday is taken in the year that they are absent or in the subsequent year.

The European Court of Justice has reversed the Court of Appeal Judgment in Stringer v HMRC (previously known as Ainsworth v HMRC), which held that a “notional” holiday gives workers a windfall.

The House of Lords, which referred Ainsworth to the ECJ, will probably now reverse the Court of Appeal Judgment.

N.B.
Since 27 October 2008, agency workers on contracts of 3 months or less have been entitled to statutory sick pay (ssp).

For information on ssp go to: www.dwp.gov.uk/lifeevent/benefits/statutory_sick_pay.asp

Contacts:

Employment Department

Raj Dhokia: r.dhokia@fglaw.co.uk

A Company Director who physically threatened an unfair dismissal claimant in the Employment Tribunal car park left him in genuine fear and made a fair trial impossible.

The employer’s appeal against “strike-out” – which prevents the defending party from taking any further part in proceedings and therefore significantly reduces the likelihood of success – was unsuccessful.

There will be circumstances where intimidation may not prevent the continuing involvement of the offending party – for example, if it occurs at a very late stage in proceedings or if the intimidation is genuinely repudiated by that party. Even then, the essential question will still be whether a fair trial is possible. If it is not, then the repudiation will be ineffective.

[Force 1 Utilities Limited v Hatfield (UKEAT/0048/08)]

Contacts:

Employment Department

Raj Dhokia: r.dhokia@fglaw.co.uk

A heterosexual worker subjected to verbal gay abuse by colleagues who knew he was not gay suffered sexual orientation discrimination.

The Court of Appeal reversed the Employment Appeal Tribunal decision, which had held that such treatment could not be “on the grounds of sexual orientation” if the harassers used gay abuse, but knew that the victim was not gay.

[English v Thomas Sanderson Ltd (2008) EWCACIV1421]

Contacts:

Employment Department

Raj Dhokia: r.dhokia@fglaw.co.uk

The Statutory Dismissal Procedures will be abolished from 6 April 2009. The penalty of automatic unfair dismissal for not following the Statutory Dismissal Procedure will also go, although a dismissal may still be unfair if there has not been a reasonable dismissal procedure.

There will be a monetary penalty for failure to follow the good employment practice set out in the new ACAS Code of Practice on Discipline and Grievance Procedures. Employment Tribunals will be able to award up to 25% more compensation if an employer does not follow the ACAS Code. An Employee who successfully claims unfair dismissal but had not complied with his or her employer’s procedure (say, by not turning up to disciplinary hearings) can have compensation reduced by up to 25% too.

Transitional Provisions

There will be some occasions when the Statutory Dismissal Procedures will continue to apply after 5 April 2009 – in essence when the dismissal procedure began before 6 April 2009.

Statutory Grievance Procedures

The Statutory Grievance Procedures will also be abolished from 6 April 2009; they are also subject to similar transitional provisions.

To download ACAS Code, go to www.acas.org.uk

There is also an ACAS Guide to the Code of Practice at http://www.acas.org.uk/?articleid=2174

Contacts:

Employment Department

Raj Dhokia: r.dhokia@fglaw.co.uk