Employment Updates – January 2014

January 2014

Unfair Dismissal due to Ill-Health Absences 

In the recent (Scottish) case of BS v Dundee City Council [2013] CSIH 91, the Court of Session has confirmed that the critical question to be decided in respect of dismissals on the grounds of ill-health is, “whether any reasonable employer would have waited longer before dismissing the employee”.  In particular, the following issues should be specifically addressed:

 (1)  Whether the employer could be expected to wait any longer and, if so, for how much longer?       Relevant factors can include the size of the employer, if they can call on temporary staff and if the employee has exhausted their sick pay.

 (2)  Whether the employee has been consulted with, their views have been taken into account and if they have been properly balanced against the medical professional’s opinion.

 (3)  Whether reasonable steps have been taken to discover the employee’s medical condition and likely prognosis. 

Right to Be Accompanied

The EAT has confirmed (in the recent case of Roberts v GB Oils Ltd UKEAT/0569/12/LA), that the reasonableness of a worker’s right to be accompanied at a disciplinary or grievance hearing is limited to the request to be accompanied only, and not to the choice of companion who may, therefore, be whoever the employee wishes, so long as they come from one of the defined categories of companion.  This will also be subject to the Employment Tribunal’s discretion to reduce compensation if the companion chosen was unsuitable.  

ACAS has recently closed its consultation on a revision to its Code of Practice on Disciplinary and Grievance Procedures to reflect the above decision, this Code having previously incorrectly provided that it would not normally be reasonable for a worker to insist on being accompanied by a companion from a remote geographical location, or whose presence would prejudice the hearing. 

Minimum Wage Penalties

The Government has recently confirmed that it is to increase the penalty for employers who fail to pay their workers the national minimum wage, from 50% of the total underpayment, subject to a maximum penalty of £5,000, to 100% of the unpaid wages and subject to a higher maximum penalty of £20,000.  Regulations introducing these new limits are expected to come into force in February 2014.

The Government also intends to legislate as soon as possible, so that the maximum £20,000 penalty can apply to each underpaid worker.  This is in addition to changes made in 2013 to make it easier to name and shame employers who fail to pay the national minimum wage.