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Archive for April, 2011

An electrician and former soldier faces the sack for displaying a small palm cross in the window of his company van.

As reported by The Telegraph, Colin Atkinson, 64, from Wakefield, has been called to a disciplinary hearing at the housing association where he has worked for 15 years.

His bosses at the publicly funded Wakefield and District Housing (WDH) have demanded he remove the eight inch long cross made from woven palm leaves that sits on the dashboard of his van.

A spokesperson for the Council said “We do not allow employees to display any personal representations in our vehicles, although they are free to do so upon their person.”

This is interesting in that it is a reminder of a case in 2010 when the English courts held that it was not unlawful discrimination for the employer (British Airways) to ban Nadia Eweida, a Christian employee from wearing a cross at work.

The Court of Appeal ruled that to establish indirect religious discrimination, an identifiable section of a workforce (quite possibly a small one but not a solitary individual) must be shown to suffer a particular disadvantage. Ms Eweida is taking her case to the European Court of Human Rights.

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City law firm Allen & Overy allegedly told female solicitors to increase the lengths of their skirts and reduce the height of their heels or face “uncomfortable discussions” with the human resources department reports The Telegraph. The instructions were  sent by email to trainee solicitors at the firm by the trainee solicitor liaison committee.

The email allegedly said “We’ve been asked to draw your attention to the fact that HR have received numerous complaints about the way female trainees have been dressing around the office,” and went on to point out that the recipients were not going clubbing but rather they were going to work and should dress accordingly.

The news was broken by Allen & Overy insiders on the legal industry’s insider blog ‘Roll On Friday‘.

The story has a catchy headline and no doubt there will be many outraged employees who believe it is their right to wear whatever they want to work. Sorry to be the bearer of bad news, but in fact, that isn’t true!

From a practical point of view, I find the dress code is a very sensitive subject for most employers who struggle to get the tone right in terms of content, implementation and finally, managing any breach of the policy. Some find it so awkward that they don’t bother with a dress code at all and would rather deal with trangressions on an ad hoc basis. Not ideal!

But while employers have a right to require employees to dress appropriately they also have a duty to keep their employees informed of their policies and procedures and I applaud the firm’s intervention at an early stage.

Better to let employees know what is expected from the start than to turn a blind eye and hope things will improve without intervention. Not every employee burns the midnight oil reading the Staff Handbook and it is totally unnecessary to resort to disciplinary action in most of these cases if HR takes an educational and informative approach.

However, if the parties do end up in court an employment tribunal is likely to want to know what action HR took to make employees aware of the policy before taking disciplinary action.

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The answer will depend on whether there is some overlap between the roles and/or whether or not the remaining post will pick up some of the orphaned tasks after the other job has been made redundant.

If so, there is a need to place both employees in the pool even though only one job is at risk and even though both jobs have different titles/levels of seniority.

Job titles shouldn’t dictate who is in the redundancy pool. Answers to the question ‘who does what?’ are far more important.

If there is a significant overlap between two or more employees’ workload then it would be unfair to place only one of them in the pool.

If employers are seeking to make cost savings by cutting a senior role and require the junior role to pick up some of the slack, and/or the senior employee could do the junior role, then discuss the pool with the affected employee before you make a decision.

If the senior employee is willing to accept the reduced pay and benefits package attached to the junior role then you can apply the practice known as ‘bumping’ where the first employee (whose post is made redundant)  ‘bumps’ a second employee out of their role so that the second employee is made redundant instead of the first. It seems unfair but it is designed to ensure that organisations can retain the best staff rather than become slaves to procedure.

So, if the senior employee wants to be considered for the junior role, then both the senior and junior employee should be in the pool before you make the senior role redundant.

Fulcrum Pharma (Europe) Ltd v Bonassera (EAT) decided similar facts in November last year and underlined the need for employers to ask employees whether they would consider taking a lower paid post before confirming the ‘pool’. The failure to properly consult over these issues with Ms Bonassera resulted in an unfair dismissal finding against the employer.

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The Code of Practice on Workforce Matters in Local Authority Service Contracts has been withdrawn according to the Communities & Local Government Department.

The Code was introduced in 2003 and applied to TUPE staff transfers in England and Wales where they involved local authority service contracts. The Code ensured that employees who joined the dedicated team after the transfer were not disadvantaged.

The idea was that this redressed the two tier worforce that had started to emerge as a result of employees being hired in on less favourable terms and conditions after a transfer. These employees joined the transferee organisation and sat along side team members who were on better terms and conditions because they were protected by TUPE Regulations.

But in any case this isn’t unusual because transferring employees often join new teams that are subject to less favourable terms and there is no obligation to ‘improve’ those terms in line with the new joiners!

Caution: This decision is not retrospective, so if your service contract is already covered by the Code it will continue to be so.

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Unless the contract of employment states or can be interpreted otherwise, notice to leave will run from the day after it is given, irrespective of whether notice is given verbally or in writing.

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This is the first UK libel case arising out of Tweeting.  Employers need to be careful when employees use social media at home or at work. Whether you require staff to promote your business through Twitter or make new contacts on Linkedin, it is vital to put a social media policy in place first as this UK libel action is likely to be the first of many as witnessed by the US in recent years.

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A new application called Skiver has been released by a Company in Gateshead for Android users and aims to help users pull a sickie and gives skiving employees the ability to select how many days off they are looking for and then providing a selection of plausible illnesses together with a list of symptoms to ensure that they the right info to fool their boss.

The app even provides a style email which can be sent directly to the user’s boss notifying them of the absence. Employers should conduct back to work interviews which are proven to reduce absence, probably because employees are not so good at telling porkies in person!

This article is based on a report by the Chartered Management Institute discussed by Morton Fraser in Lexology today.

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