The following are a selection of short case studies related to staffing issues. Some of them may surprise you and may help explain why
it is so important to seek professional advice in relation to all employment matters. The comments given on each case are provided as a
guide only and should not be used as a replacement for professional advice, even if the facts appear identical to a real-life issue that
you wish to deal with.
- Employee request for flexible working
Denise owns a small software company. She has six members of staff who all work full-time, 9 to 5, in the office. She currently takes care
of sales and marketing herself and leaves most of the technical work to her team. Her business has grown rapidly in the 3 years that
she has been operating and she believes that so far she has managed quite well to keep on top of employment matters using various online resources.
One of her employees, Dave, has taken some odd days from his annual leave entitlement recently to help his elderly father attend various
hospital appointments. His father has osteoporosis and is finding it increasingly difficult to manage to look after himself at home.
Dave pops into Denise's office today and tells her that he has agreed with his wife that Dave's father will move in with them both in the
near future. Dave's wife works part-time and will look after his father when not at work. Dave wants to reduce his hours so that he will
be able to look after his father when his wife is unable to. He gives Denise a letter setting out the details of his request.
Denise is not sure what to do. The business is growing and she cannot afford to lose the hours that Dave is proposing to drop. She knows
that it would be hard to replace those hours by recruiting a new part-time member of staff as most people in the industry are the main
bread winners in the household, who are looking for full-time work. She is minded to refuse Dave's request but thinks that she might then
find that he becomes unreliable if he needs to take time off at short notice when his father needs him. It may be that Dave chooses to leave
the company. He is only a few years from retirement, he has paid off his mortgage and his children left home a few years ago to start on
their own careers. Denise is worried about losing Dave's skills and knowledge.
Comment: On 6 April 2007, employees with at least 26 weeks' continuous service with their employer gained the right to request to work
flexibly in order to care for a member of their family or some other person living with them (The Flexible Working (Eligibility,
Complaints and Remedies) (Amendment) Regulations 2006). Previously this right has only applied to parents.
In order to comply with the Regulations, Denise should first check what Dave has written to see if it complies with the employee's duties as
set out in the Regulations. The onus is on Dave to state in his letter what impact he believes his reduction of hours will have on the
business and to propose any arrangements which could offset any detriment. If he has not done so, Denise could explain this requirement to
Dave and ask him to resubmit his request when he has done so. This is a good tactic because it will force Dave to consider the problems his
proposal will have for Denise. He may well propose a different arrangement, such as working from home part of the time or varying his working
hours, which may have a lesser impact.
Once Dave has submitted his request in the required form, Denise needs to give it due consideration. Denise needs to arrange to meet with
Dave (and a companion if he chooses to bring one) within 28 days to discuss his request. It may be that Denise can negotiate a different
variation with Dave at the meeting if his proposal is going to prove problematic.
If Denise is not able to agree to Dave's request she needs to ensure that her reason for this decision falls into one or more of the
following business reasons:
- Burden of additional costs
- Detrimental effect on ability to meet customer demand
- Inability to reorganise work among existing staff
- Inability to recruit additional staff
- Detrimental impact on quality
- Detrimental impact on performance
- Insufficiency of work during the periods the employee proposes to work
- Planned structural changes
If Denise does refuse the request she needs to give Dave in writing the reason for her refusal and notify him that he has the right to
appeal this decision.
As Denise is concerned about losing Dave, she may wish to agree to his request on a trial basis. She may be able to propose an
alternative arrangement that would be acceptable to Dave. It may be that she can advertise for a part-time replacement to test her
assumption that it would not be attractive to potential recruitments before coming to a final decision (the subsequent delay in the
procedure would need to be agreed with Dave first).
As Denise's company continues to expand it is likely that she will encounter more such issues from members of her staff. Part-time and other
forms of flexible working may prove to be popular among her new and existing staff members, so she would do well to consider promoting such
forms of working whenever advertising for new staff. It is normally easier to accommodate changes to working patterns when there are
already a number of staff members working part-time.
If you face a similar situation and would like some help dealing with it, please contact us for a free trial
consultation meeting.
- Retirement and age discrimination:
John owns a small printing business. One of his employees, Stewart, reaches his 65th birthday next month and is due to retire.
John has had concerns about Stewart's productivity in recent months but has not dealt with this issue because, up to now, Stewart
has been a reliable worker and because he knows that his retirement is imminent. John mentions to Stewart during the coffee break
that he wants to hold a retirement party for Stewart on the evening of his last day in a local restaurant and asks him if he has a
preference of venue. John is surprised when Stewart tells him that he does not intend to retire yet and that John will be breaking
the law if he forces him to leave.
Comment: Age Discrimination legislation came into force in October 2006. It is lawful for an employer to make an employee
retire at 65 as long as a prescribed procedure is followed. The employer must notify the employee in writing of the date of their
retirement at least 6 months before that date and the employee then has the right to request to continue working. As John has not
given this required notice he is already in breach of the law but he might be able to recover the situation if he acts promptly.
However, if Stewart brings an employment tribunal claim, the tribunal will make an award of up to 8 weeks' pay for this breach.
If John does not give the proper written notification to Stewart until 2 weeks or less before the retirement date an employment
tribunal would consider that Stewart's dismissal is automatically unfair and the compensation awarded could be much higher.
John needs to write straight away to Stewart to notify him formally of his retirement date and to give him the chance to request
to stay on. John then needs to hold a meeting with Stewart (and his companion) to consider his request and respond accordingly.
If John decides not to agree to this request, Stewart has the right to appeal against this decision.
If you face a similar situation and would like some help dealing with it, please contact us for a free trial
consultation meeting.
- Gross misconduct and maternity
Paul runs a busy coffee shop and has a number of part-time staff who wait on tables and work behind the counter. In recent weeks
he has found that the takings each day do not tally with the receipts and he is short by a couple of hundred pounds. All the staff
members have access to the till and are in and out of it regularly.
Paul has told all his staff that money has gone missing and he suspects one young woman, Clare, who appeared quite agitated when he
mentioned it to her. Another member of staff, Sue, has taken Paul aside and told him that she saw Clare acting suspiciously recently
when she was ringing an order into till. She said that Clare became flustered when Sue walked up behind her when she had the till
drawer open and it looked like Clare had a hand in her pocket. When Sue asked her what she was doing, Clare had said that she was
checking to see if they needed change. Sue said that this had just made her more suspicious because Clare had seen Sue topping up
the change just half an hour previously. Sue also told Paul that another staff member had told her that Clare had been showing off
some new CDs and clothes that she had bought recently in her lunch break, saying that she had come into some money.
Paul asked Clare to meet him in his office the following day and told her that he wanted to talk to her about the missing money.
Clare had become very flushed and agitated when Paul spoke to her. She has now come back to Paul and told him that she is pregnant
and will need to take maternity leave towards the end of the year.
Paul is very worried. He wants to deal with the missing money issue and, if she has been stealing it, dismiss Clare. But he has
heard so many horror stories about pregnant employees suing their employers for thousands of pounds when they have been dismissed
and he is concerned that he has no proof of her guilt.
Comment: Now that Clare has informed Paul that she is pregnant he does need to be very careful to ensure that he treats
her appropriately and in a non-discriminatory manner. He needs to assess whether there is any risk to her health or that of her
unborn child of continuing to work as normal. He also needs to allow her paid time off to attend antenatal classes.
However, the fact that Clare is pregnant does not have any bearing on Paul's need to deal with the apparent theft of money. If Paul
conducts a thorough investigation and follows a fair and reasonable disciplinary procedure before dismissing Clare for gross misconduct,
he should be able to successfully defend any claim of unfair dismissal and/or sex discrimination. It is important that Paul keeps an
open mind during the process and looks out for any other explanation for the missing money (including whether another member of staff
could have stolen it). Paul does not need to have hard proof of the theft but he does need to have a reasonable belief in Clare's guilt,
taking into consideration all the available evidence, if he decides to dismiss her.
If you face a similar situation and would like some help dealing with it, please contact us for a free trial
consultation meeting.
- Long term sickness absence
Janice is the MD of a company manufacturing automotive parts. She has 25 employees, most of whom have been working for the organisation
for many years. One of her employees, Frank, has been off sick for 3 weeks and has been in hospital for most of that time undergoing a
series of tests. Cancer is suspected.
Janice is very concerned about Frank. She has agreed to continue paying him sick pay at the rate of full pay for the time being but she has
had to take on a temp to help cover his work and the extra cost is starting to hurt. However, she doesn't want to make things worse for
Frank by reducing his pay when he is so vulnerable. If cancer is diagnosed, Janice thinks it is unlikely that Frank will be able to return
to work; she does not know what she would need to do in the circumstances. Whilst Frank is a long-serving and very hard-working employee,
she cannot afford to carry him for an extended period. She is worried also about any employment law implications.
Comment: Dealing with long-term sickness absence is never easy. Not only do you have the worry of a potentially close colleague or
friend being seriously ill, but you also have the added difficulty of what to do about their pay and employment in general.
Payment for extended periods of absence depends very much on whether or not you give your employees any contractual sick pay. If not they
will normally be entitled to up to 28 weeks' Statutory Sick Pay (£72.55 per week from 6 April 2007). You could always pay more than that on a
discretionary basis but you should exercise some caution if you do so as you could be setting a precedent.
Once someone is diagnosed as having cancer they are officially classified as disabled under the Disability Discrimination Act. This means
that you should avoid making any assumptions about their ability to work and base any decisions about their employment on medical
opinion in consultation with the employee. You would need to consider whether there are any adjustments that you could reasonably
make as part of that consultation.
If someone remains off sick for an extended period you may want to terminate their employment so that you can find a replacement for them.
That is perfectly understandable and the law recognises that this can be a "fair" reason for dismissal. However, it is very important that
you follow an appropriate procedure before dismissing your employee. This would include obtaining a medical report or reports, discussing
the possibility of a return to work with your employee throughout a period of consultation, and ensuring that termination is the only real
option in the circumstances.
Unfortunately there are many potential pitfalls for an employer dealing with a case of long-term absence. So often it can go wrong if the
process is rushed or if every alternative to dismissal has not been fully considered.
If you face a similar situation and would like some help dealing with it, please contact us for a free trial
consultation meeting.
