The legal lowdown: Change afoot

Highlighting the most important changes to employment regulation and the landmark employment cases of Spring 2012. What should manufacturers take note of as the legal ground for businesses shifts?

Simon Fenton of Thomas Eggar LLP
Simon Fenton of Thomas Eggar LLP

Qualifying period for unfair dismissal to increase to two years

The details of the increase in the qualifying period for unfair dismissal are now known. Anybody whose continuous employment starts on or after 6th April 2012 will not gain rights to claim unfair dismissal until after they have been employed for two years. ‘Continuous employment’ normally means the date that somebody starts work, but the date can reset if they are absent for certain reasons.

So, as you read this, you will now have two years – rather than one – to decide whether the person you recruit is suitable in post.

Violence and liability

We recently looked at two similar cases involving violence against employees. The same question applied in both cases: is an employer vicariously liable for an employee’s attack on another employee where the violence was in response to the employer’s lawful instruction?

The facts of each case produced different outcomes. It boiled down to how closely connected the violence was with the employment.

“Anybody whose continuous employment starts on or after 6th April 2012 will not gain rights to claim unfair dismissal until after they have been employed for two years” – Simon Fenton, Thomas Eggar LLP

Mr Weddall, the deputy manager of a care home, phoned an employee at home to ask him to cover a night shift. The employee refused but shortly after turned up at work and assaulted Mr Weddall. The employer was not vicariously liable. The employee was acting personally for his own reasons, unconnected with his work.

In the second case, the employee – a powder coater in a small manufacturing company – was carrying out a task which was central to his employment. While he was doing this, Mr Wallbank (the company’s managing director) tried to help him load furniture onto a conveyer belt, issuing instructions as he did so. In response, the employee reacted to the employer’s instruction with spontaneous force, throwing Mr Wallbank onto a table. The employer in this case was held liable for the assault.

University sponsorship isn’t an employment contract – GE Caledonian v McCandliss

The mechanical engineering company GE Caledonian sponsored Mr McCandliss, an apprentice, to take a university degree. When he dropped out of his course, the company gave him two options: reenroll on the course or accept an internship. Mr McCandliss declined both, saying that he wanted to return to working fulltime for the company.

The company refused. It said that there weren’t any positions available and the company wasn’t obliged to offer him a position once his apprenticeship had ended.

McCandliss brought an unfair dismissal claim and won at tribunal. But this changed on appeal. The Employment Appeal Tribunal found that there was no contract of employment – it was a training contract – and so McCandliss hadn’t been entitled to bring an unfair dismissal claim in the first place.

Moving with the times

The employment landscape in which manufacturers are working is continually presenting directors in the industry with new challenges.

The best way in which manufacturers can respond to issues such as those highlighted above is to regularly review employment policies and procedures and proactively ensure that they are fit for purpose, before an issue becomes a problem.

Thomas Eggar regularly runs complimentary employment seminars. Our Summer programme includes sessions on managing the tribunal process as well as managing staff absence.

For more details contact: Simon Fenton, Partner, Thomas Eggar LLP simon.fenton@thomaseggar.com or 01635 571038.