Legal Update

More advice from the IAAF’s legal advice partner, Lawgistics.

Calling time – full or part

Both part time and full time workers who are doing the same or similar work need to be treated the same. As an employer you cannot treat one less favourably than the other.

Part time workers have the right to be treated no differently than colleagues who are full time in a comparable job role. This includes:

  • Same rates of pay
  • Same opportunities to training (don’t exclude part time staff because they simply work part time)
  • Same holiday entitlement based pro rata
  • Treated no different if workers are selected from redundancy
  • Have the same opportunities which are open to full time staff such as career break schemes

As an employer, you will need to provide an objective reason that justifies treating part time staff differently and the reason meets a genuine business need.

If a part time member of staff thinks they are being treated less favourably, and if there is no satisfactory discussion with their supervisor/line manager, they can then ask for a written statement with an explanation of the unfavourable treatment. The response should be within 21 days and if the member of staff is not happy with the reason then they could potentially bring a claim against you in an employment tribunal.
Closing a site and redundancy

When a company has multiple sites and is closing one of them, is it a redundancy situation for the workforce deployed at this site? The established law so far appeared to confirm the simple answer: yes, it is a redundancy situation, unless the employees have a mobility clause in their employment contracts, on which the employer can rely and instruct relocation.

A recent Employment Tribunal case Kellogg Brown & Root (UK) Ltd v Fitton and Ewer the courts added another refinement: it would be open for the courts to look into whether the instruction to relocate issued under the mobility clause was fair. In this case, Mr Fitton and Mr Ewer worked at the site of Kellog in Greenford, Middlesex. The company then closed its site in Greenford and instructed both employees to relocate to its site in Leatherhead, Surrey in pursuance of the mobility clause. Both employees refused and were summarily dismissed for gross misconduct in refusing to obey a lawful instruction.

The Employment Tribunal found, confirmed on appeal, that the instruction to relocate from Greenford to Leatherhead, some 30 miles away, was unreasonable and the dismissal was therefore unfair. The case was decided on its specific facts and the outcome would have been apparently different if both sites had been nearer or in the same locality.
The benefits of benefits

In tough economic times SME’s may seek to find ways in which to cut costs but avoid redundancies. Removal of staff benefits may be seen as a potential money saver; increased pension allowance or private healthcare for example, but is their removal really a good idea, how easy is it to do and what might be the consequences?

From a legal standpoint, the first port of call is the employment contract. If the benefit is included as a contractual term and your employees do not agree to a change, you will have to explore a variation of contract without employee consent which when to the employee’s detriment is likely to invoke a legal challenge and could also be the case in a situation where a benefit is contractual but where the contract includes a “general right to vary” clause as this difficult to rely on when seeking to remove benefits.

If the benefit is not a contractual term you would need to consider whether the benefit has become an implied part of the contract by way of ‘custom and practice’ for example and this means it must be; “reasonable, notorious and certain”.

The fact that a benefit has been granted by an employer for a number of years will not necessarily mean it has become a binding entitlement. Firstly, this is because the term must be known to the workforce so that employees have a reasonable expectation of receiving the benefit. For example, if details of the benefit are published in an easily accessible document such as a staff handbook this might point towards an implied term. However, if information about the benefit is set out in a restricted policy document available only to a small group of management or HR, this would point away from the benefit having become an implied term. Secondly, the employer must have behaved in such a way which suggests it felt a sense of legal obligation to provide the benefit.

From an HR and management standpoint it is important to consider why you offer the benefit and the likely effect of its removal. One aim of reward and pay is to attract, retain and motivate staff and what you lose in staff motivation, loyalty and trust may not be worth the cost of withdrawing the benefit. It is vital to carry out a firm analysis of the potential legal implications and on the impact to business before making any decisions.

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