SUMMARY: European Court of Justice provides clarity on when the collective consultation obligation arises
Current legislation requires employers to collectively consult when they propose to dismiss as redundant at least 20 employees at one establishment within a period of 90 days or less.
In February 2015, we reported that the Advocate General in the “Woolworths case” had indicated that it is not necessary to aggregate the dismissals across all of an employer’s establishments for the purposes of determining whether the collective consultation obligation has been triggered.
The Advocate General’s opinion appeared to give some comfort to employers who were contemplating large-scale redundancies across various sites; collective consultation that may have been triggered in the past, may no longer need to be a future consideration.
The Advocate General’s opinion was a precursor to the European Court of Justice’s (“ECJ”) decision.
THE ECJ’S DECISION
The ECJ was subsequently asked to decide whether the expression “at least 20” refers to the number of dismissals across all the employer’s establishments or only the number of dismissals in each individual establishment.
The ECJ found that “at least 20” requires a separate account to be taken of the dismissals effected in each establishment.
IMPLICATIONS FOR BUSINESSES
The ECJ’s decision means that where an employer is made up of several establishments, collective consultation is only required at those establishments where it is proposed to dismiss 20 or more employees. There is no requirement to aggregate the dismissals arising across all the establishments.
Employers should however be aware that when contemplating large-scale dismissals across various sites/business units, consideration still needs to be given as to whether those sites constitute separate establishments.
USDAW v Ethel Austin Ltd (in administration) and another UKEAT/0547/12 (European case reference: USDAW and Wilson v WW Realisation 1 Ltd (in liquidation), Ethel Austin Ltd and BIS C-80/14) (the “Woolworths case”)
If you are faced with a potential large-scale redundancy or business re-organisation and you have concerns about identification of an “establishment” for collective redundancies please contact:
+44 (0) 1604 871143
This update is for general guidance only and does not constitute definitive advice.
SUMMARY: As drugs testing has become a more common consideration in the workplace, employers need to ensure their testing practices are legally compliant.
Why should employers be concerned about drugs and alcohol at work?
Employers want to ensure that employees are carrying out their roles effectively. This may not be the case where employees are under the influence of drugs or alcohol, which can result in (amongst other concerns) impaired job performance, health and safety concerns, increased short-term sickness absence and a deterioration in their relationships with colleagues, customers or managers.
In addition, possession of some drugs is illegal and employers could be breaking the law if they knowingly allow drug-related activities in the workplace and fail to act.
When can employers test employees for drug use?
It is possible for employers to carry out drug screening, but the screening should be justified, necessary and proportionate. An employer is likely to be able to justify screening where working under the influence of drugs could give rise to:
- health and safety considerations (eg. where staff drive, or operate machinery, or where accuracy or decision making impacts on the health and safety of others); or
- serious damage to the employer’s business.
If an employer cannot show the above, it is unlikely that screening would be appropriate and if it is carried out they could be in breach of legislation such as the Data Protection Act 1998.
If testing is necessary, employers should take into account the following key points when testing for drugs:
- Testing should be carried out with the employee’s consent (although an employer may make withholding consent a disciplinary matter).
- Employees should be told what drugs are being tested for.
- Testing should be limited to those substances which could adversely affect the employee’s performance.
- Employees should be told what could be the possible consequence of their refusal to submit to testing or for failing the test.
- Testing should not be carried out on samples obtained without the employee’s knowledge.
- Employers should not single out particular employees for testing unless this is justified by the nature of their jobs.
- Employers should use a reputable and recognised means of testing.
- Employees should be given the opportunity to see and challenge the test results, including providing them with duplicate samples so they can carry out their own independent checks.
One example of where an employer could justify carrying out drug testing is where the employer is a bus company and its drivers are tested; it is imperative for health and safety reasons that they are not under the influence of drugs when they are conveying a bus load of people.
However, an employer should be careful with the results of any such testing and should bear in mind that tests are not infallible. Even if test results are positive, this does not remove the requirement under the ACAS Code of Practice to carry out a reasonable investigation.
First Bus is recently reported to have discovered the importance of carrying out an investigation after it dismissed a bus driver who tested positive for cocaine. First Bus apparently would not listen to his alternative explanation for the positive saliva test; at the tribunal his solicitor argued he had handled hundreds of pounds of cash on the day of the test, which could have been contaminated by cocaine. He took a hair test himself, which showed no traces of cocaine in his system. Ultimately, the employment tribunal is reported to have awarded him the maximum amount of compensation for unfair dismissal.
This case highlights the importance of carrying out a meaningful investigation before any decision about disciplinary action is taken, which would include permitting the employee to challenge the results and put forward their own version of events.
Substance Misuse Policy
The Information Commissioner’s Office Employment Practices Code suggests that a drug or alcohol policy (which we refer to as “substance misuse”) should be contained within a staff handbook.
A substance misuse policy usually includes clear rules relating to the employer’s stance on coming to work under the influence of alcohol or drugs (whether prescribed, over the counter or controlled substances) and about drinking alcohol or drug taking while at work.
It could also set out details of any drug screening (and alcohol testing), which should include the circumstances in which drug screening would be undertaken. For some employers, it would not be appropriate to include drug screening, for the reasons set out above.
Finally, one advantage of a substance misuse policy is that the consequences of a breach of it (such as disciplinary action) can be made clear to employees. This is key to ensuring any dismissal which may occur is fair.
In answer to the title question: yes, employers can carry out drug testing, but only in limited circumstances, usually related to health and safety, and it is good practice to have a drug/alcohol/substance misuse policy.
For more details about how to deal with drug issues which may arise in the workplace or if you would like a substance misuse policy please contact:
+44 (0) 808 172 93 22
This update is for general guidance only and does not constitute definitive advice.
SUMMARY: Our briefing note tells you how to get to grips with the basics on Shared Parental Leave.
What is the new Shared Parental Leave (“SPL”) regime?
SPL is a new legal entitlement for eligible parents of children due to be born on or after 5 April 2015, or who are placed for adoption on or after 5 April. It gives both parents the opportunity to consider the best leave arrangements to care for their child during the child’s first year with their family.
Does SPL replace normal family friendly leave?
The entitlement to statutory maternity, paternity and adoption leave will remain. SPL is an optional entitlement which parents can choose to take.
In order to trigger SPL, the mother will however need to have curtailed or given notice to reduce their maternity/adoption leave (or pay/allowance if not eligible for maternity/adoption leave).
Do we have to offer SPL to all our staff?
The right to SPL is not automatic; a parent must satisfy stringent eligibility requirements and opt to take it.
Who is eligible to take SPL?
There are four elements to identifying who is eligible for SPL:
The mother must:
- have a partner;
- be entitled to maternity/adoption leave; or to statutory maternity/adoption pay or maternity allowance; and
- have curtailed, or have given notice to reduce, their maternity/adoption leave (or pay/allowance if not eligible for maternity/adoption leave).
A parent who intends to take SPL must:
- be an employee. A self-employed parent will not be entitled to SPL but if they pass the employment and earnings test (see below), their partner, if an employee, may still qualify for SPL;
- share the primary responsibility for caring for the child; and
- have properly notified their employer of their entitlement and have provided the necessary declarations and evidence.
Third element – the “continuity of employment test”
A parent wanting to take SPL must satisfy the continuity of employment test. This means that they must have been your employee for 26 weeks:
a) at the end of the 15th week before the expected week of birth; or
b) at the week of being matched with a child for adoption,
and remain in continuous employment until the week before he or she starts any period of SPL.
Fourth element – the “employment and earnings test”
The other parent/partner also needs to satisfy the employment and earnings test by:
a) having worked for at least 26 weeks as an employee or a self-employed earner during the 66 week period leading up to the baby’s expected due date or child’s matching date; and
b) earning an average of £30 per week (as at 2015) in any 13 week period during those 66 weeks.
When will we know if an employee wants to take SPL?
Parents do not have to choose to take SPL immediately on the birth/matching. They have the option to request it at any time whilst they remain eligible to do so, and there is some untaken leave left to share. You would however be entitled to receive at least eight weeks’ notice – see below.
When and how must SPL be taken?
The legislation provides that:
- SPL must be taken within one year of the birth/adoption; and
- it can be taken as an unbroken period of leave (“continuous block”); or
- it can be taken as separate periods of leave (“discontinuous block”). For example, the employee takes five weeks SPL, returns to work for four weeks and then takes a further five weeks SPL.
The distinction between continuous and discontinuous blocks of leave is important as this determines the nature of the employer’s response.
How much leave can be taken?
The total amount of SPL available depends upon the amount of statutory maternity/adoption leave that the mother or the primary adopter has taken and/or proposes to take – this is because the mother/primary adopter must cut short their 52-week entitlement which can either be done by:
- returning to work early; or
- giving a curtailment notice to their employer to end the statutory maternity/ adoption leave on a specific date.
The maximum number of weeks of SPL that can be made available is 50.
SPL can only be taken in blocks of complete weeks, i.e. not in blocks of less than seven days.
It is envisaged that SPL can be taken concurrently by the partner, while the mother is still on maternity leave as long as the relevant notice requirements have been satisfied.
Do we have to pay Statutory Shared Parental Pay (“SSPP”)?
The answer is yes. SSPP is broadly the same as statutory maternity pay and can be paid for up to a maximum of 39 weeks (less any statutory maternity pay, maternity allowance or statutory adoption pay).
An employee who qualifies for statutory maternity pay, statutory adoption pay or statutory paternity pay and whose partner meets the employment and earnings test will be eligible for SSPP.
If both parents qualify for SSPP they must decide who will receive it, or how it will be divided, and they must each inform their employer of their entitlement.
How will we know if an employee wants to take SPL?
SPL can only be taken where the mother has:
- already returned to work; or
- given notice to reduce the statutory maternity/adoption leave and the date it will come to an end.
Before SPL can start you would be entitled to receive the following communications:
1. Notice of entitlement
If an eligible employee intends to take SPL they must send you a notice of entitlement confirming that they want to opt to take SPL. This notice must include certain prescribed information such as how many weeks maternity/adoption leave will or has been taken, details of as how much SPL will be taken and when; a declaration from the employee and the other partner/adopter confirming that the statutory conditions are met must also be provided. At this stage the employee is only required to give you an idea of what they are considering and the leave dates do not have to be definitive.
The notice must be submitted at least eight weeks before the intended period of SPL.
The mother/primary adopter must provide their employer with the notice. Likewise, the father/partner must provide their employer with the notice.
2. Curtailment notice
If the employee has not returned to work they must serve a curtailment notice in relation to statutory maternity/adoption leave to bring it to an end.
3. Notice to claim SSPP
If an employee wishes to claim SSPP, they must also give notice at least eight weeks before they wish to start claiming it. This notice can be included within the notice of entitlement.
4. Notice to book leave
A notice to book SPL must be submitted in writing at least eight weeks before any period of SPL would begin. This notice to book leave must set out the leave the employee intends to take specifying the start and end dates. Three periods of leave notice can be given, which can permit up to three separate blocks of SPL being taken.
This notice can be given at the same time as the notice of entitlement is provided.
This notice must be submitted at least eight weeks before the intended period of SPL.
Can we refuse requests for periods of SPL?
In short, the answer to this question will depend on whether the request relates to a continuous or discontinuous block of leave:
- A request for a continuous block of leave must be accepted unconditionally, unless the employee agrees to a modification; there must in this case be evidence that such agreement has been freely given by the employee.
- A request for a discontinuous block of leave could lead to three possible outcomes:
a) the request is accepted unconditionally.
b) a modified period for leave is agreed; and
c) the request is refused without proposing alternative dates.
Employers should be mindful that there is a process for responding to requests particularly those relating to discontinuous blocks of leave and in some cases the default provisions may be triggered. For example, where the request is ignored, agreement is not reached or the request is rejected. The default provisions allow the employee to withdraw their request, which will then not be treated as one of the statutory three notices to book leave, or the leave will default to a period of continuous leave.
Does SPL have to mirror the organisation’s enhanced maternity scheme?
There is no statutory requirement for employers to create an occupational shared parental leave scheme, even if it offers an enhanced maternity scheme. If, however, you offer an enhanced maternity scheme we would recommend that you take legal advice as potentially not offering an enhanced SPL scheme may give rise to a discrimination claim.
Do we need to allow the employee to return to work following SPL?
An employee’s right to return to work will be determined by the period of SPL taken:
- If an employee returns to work following a period of SPL they are entitled to return to the same job if their combined leave period (comprising of maternity/paternity/adoption and SPL) totalled 26 weeks or less.
- If an employee returns to work following a period of SPL where the number of weeks of maternity/paternity/adoption and SPL exceeds 26 weeks in total, or the total number of unpaid parental leave weeks exceeds four weeks, an employer must allow an employee to return to the same job unless it is not reasonably practicable to do so, in which case a suitable and appropriate job on terms and conditions no less favourable must be offered.
Are there any other considerations we need to be aware of?
The legislation does create additional rights and protection for those seeking to take or taking SPL. For example:
- Terms and Conditions – During SPL an employee is entitled to benefit from all of their usual terms and conditions except for remuneration, i.e., wages.
- Redundancy situations – If whilst on SPL an employee’s role becomes redundant, they must be offered any suitable alternative role, if available. This is the same right a mother on maternity leave has.
- Detrimental treatment and dismissal – Employees are entitled not to suffer from a detriment or be dismissed for seeking to taking SPL.
- “Shared Parental Leave In Touch Days” (“SPLIT days”) – An employee and employer can agree that the employee will attend work for up to 20 SPLIT days.
- Annual leave – Annual leave will accrue during SPL.
The Equality Act 2010 prohibits unlawful discrimination in the workplace on the grounds of a protected characteristic, which includes gender, sexual orientation, pregnancy and maternity. SPL therefore creates the potential for a discrimination claim. To minimise the risk, all requests for SPL must be handled fairly, consistently and in a non-discriminatory way to avoid such claims.
Should we introduce a SPL Policy?
Whilst there is no legal requirement for you to have SPL policy, we consider that it would be a matter of good practice for most employers to have one. This will ensure that all SPL requests are dealt with consistently, all legal requirements are satisfied and the correct procedures, particularly where discontinuous periods of leave are sought, are followed. It will also tell your employees how to apply for SPL and the minimum legal requirements they need to satisfy.
What do we do next?
If, having read our note, you have further questions or if you receive an application for SPL from a member of staff and you require some advice specific to that application, please contact us. We would also be happy to advise you.
We will however keep you updated with future updates on this knotty subject.
Please contact us on: firstname.lastname@example.org
+44 (0) 808 172 93 22
This update is for general guidance only and does not constitute definitive advice.
Welcome the latest edition of the FGazette – we wish you a Happy Easter!
This latest edition of the FGazette is packed with key employment law updates and includes issues such as eliminating tribunal claims worry, considering whether individuals are employed or self-employed as well as performance management in the workplace.
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