In June’s issue: World Cup Sick Days Updates to Flexible Working Vince Cable on Zero Hours Contracts Auto Enrolment: Who’s Eligible?

1. EMPLOYMENTMATTERS
CELEBRATING 100 YEARS
CHESTER VOLUNTARY ACTION MARK
THEIR CENTENARY
FLEXIBLE WORKING HOURS
HOW DO THE LATEST CHANGES TO
FLEXIBLE WORKING AFFECT YOU?
CASE STUDY: EMPLOYEE DISMISSALS
WE LOOK AT THE RULINGS OF TWO
CASES OF EMPLOYEE DISMISSALS
www.employment-lawuk.co.uk | ISSUE JUNE 2014
‘World Cup Fever’
Study Reveals that one-in-ten employees will take a
sickie during the World Cup
Vince Cable Speaks Out Against Zero-Hours ContractsFOCUS
The (Red) Devils in The Details
How Manchester United Avoided Paying
£25m to Ex-Manager David Moyes
Vince Cable Speaks Out
Vince Cable speaks about
Zero Hour Contracts
Survey: Gender Divide
44% of women feel their career
has been hindered by their gender
Auto Enrolment
Who’s eligible?

2. EMPLOYMENTMATTERS•ISSUEJUNE2014
02
EDITOR’S LETTER
4 EDITOR LETTER
Richard Burnett comments on some of
this month’s features & issues.
5 DEVILS IN THE DETAIL
How Manchester United avoided paying £25m
to ex-manager David Moyes.
6 ZERO-HOURS CONTRACTS
Vince Cable adds to the debate and speaks out
about Zero-Hours Contracts.
8 GENDER DIVIDE
New report reveals that 44% of women feel their
career is hindered by their gender.
11 10 REASONS FOR AVENTI
We look at why employers need the fixed fee
employment service.
12 AUTO ENROLMENT
Employment Solicitor Rachel Hughes shares her
guide to pension auto enrolment.
13 CELEBRATING 100 YEARS
We join in the celebrations as Chester Voluntary
Action mark their centenary.
14 FLEXIBLE WORKING
We look at how government will be
implementing new changes to flexible working.
16 WORLD CUP FEVER
New study warns of an epidemic of ‘sickies’ as
World Cup Fever spreads.
18 POLICEMAN DISMISSED
Case study: whistle-blowing Policeman who
was dismissed after becoming ‘unmanageable’
19 DISMISSED FOR DEPRESSION
We look at the case of a woman dismissed for
post nation depression
20 SICKNESS ABSENCES
Latest figures from the Office of National
Statistics reveal reasons for absenteeism
05
contents
EMPLOYMENTMATTERS
06
Zero-Hours
Contracts
16
World Cup Fever

3. 42
56

4. EMPLOYMENTMATTERS•ISSUEJUNE2014
4
Welcome to the
June edition
of Employment
Matters Magazine
- a dedicated
employment
magazine written
for employers and
business owners.
World Cup Fever
With this year’s World Cup held
in Brazil the significant time
difference will play a big role
in the likelihood of employees
pulling sickies before and after
key matches. Almost half of all
men and women surveyed by
Canada Life Group say that the
time difference means they
are more likely to call in sick.
So what does this mean for
business? According to the
Department for Work and
Pensions, more than 130
million days are lost each
year to sickness absences
in the UK, costing employers
around £9billion in sick-pay
and associated costs. In this
month’s edition of EMM we
look at the impact sickies
have on the workplace, what
you can do as an employer
to mitigate them and should
you catch anyone out - how
you can handle a case of
misconduct.
If you have an opinion on
absenteeism and the prospect
of losing your employees to
‘World Cup Fever’, tweet us
@AventiES
Zero Hours Contracts
This month Employment
Solicitor Rachel Hughes shares
her guide to Auto Enrolment.
The Solicitor from Hillyer
McKeown’s employment team
is back from hosting a series
of seminars on pension Auto
Enrolment.
If you woud like to know more
about Rachel’s next Auto
Enrolment seminar, then visit
our events page on our website:
employment-lawuk.co.uk
EMPLOYMENTMATTERS
Welcome
by
RICHARD BURNETT
Editor
EDITORIAL & FEATURES
Employment-lawuk.co.uk
T: 0845 366 4416
E: enquiries@law.uk.com
Aventi Employment Solutions
Murlain House
Union Street
Chester
Cheshire
CH1 1QP
EDITOR’S LETTER

5. EMPLOYMENTMATTERS•ISSUEJUNE2014
5
EMPLOYMENT CONTRACTS
T
he (red) devil’s in the details
The red side of Manchester is
united in its woes at present, with
a miserable season of failure being capped
off by rivals City winning the Premiership.
But the club’s prospects of a rapid recovery
have been given an enormous boost by
the detailed wording of its contract with
sacked Manager David Moyes.
United could have had to pay Moyes a
staggering £25 million if the terms of his
employment had been slightly different.
Justine Watkinson, Head of Employment
Law at Aventi, explained: “The exact
wording of the contract can make a huge
difference to the rights of someone who is
dismissed early.
“David Moyes signed a six-year fixed term
contract with Manchester United in July
2013 and was sacked 10 months later.
“If the contract hadn’t contained the right
clauses, the club could have been liable
for the whole sum due under it.”
Lawyers for Manchester United reportedly
included a “break clause” in the contract
which limited Moyes’s compensation to a
year’s wages if the club failed to qualify for
the Champions League.
Without this, at a salary of £5 million a
year, Moyes could have claimed Up to £25
million for what he lost as a result of early
termination.
Instead, he is reported to have reached
a settlement with the club for £7 million.
Justine added: “With a fixed term contract,
The (Red) Devil’s in the Details
unless there is a provision such as a break
clause or a notice clause or an agreed
termination clause, the employee is
entitled to receive the salary and benefits
he would have received if the contract had
continued for the agreed period.
“There are some constraints on this,
for example the employee has a duty to
try to minimise his losses by looking for
replacement work.
“Also, if he finds a new job, the money
from this will be subtracted from what he
is considered to have lost.
“But it is quite possible for a sacked
employee to try but fail to reduce his
losses, so there is no guarantee that the
amount which can be claimed will be
reduced.
“If the deal says the person is to work for
a certain period of time and the employer
breaks this, there is a very real danger of
the employee suing for wrongful dismissal
and getting the whole lot, or at least a
significant portion of it.
“Obviously most employees are paid
less than football managers, but as an
employer a few words in the wrong place
or left out could still lead to you losing
significant sums of money.
“With employment law problems we always
say prevention is much more effective than
the cure. If you get your agreements with
your staff right, you can protect yourself
against some unpleasant and expensive
situations.”
A prime example of the price which can be
paid for an unwise agreement was when
Henning Berg was kicked out of Blackburn
Rovers in 2013 with £2.25 million.
He had only been in charge of the club for
57 days, but the contract did not protect
his employer and he took the whole value
of the fixed term deal.
Do you need to protect your business from
crippling legal action by employees? Be a
Manchester United not a Blackburn Rovers.
Get the right terms in your employee
contracts from only £100 a month with
Aventi.
by
RACHEL HUGHES
Employment Solicitor

6. EMPLOYMENTMATTERS•ISSUEJUNE2014
6
Business secretary Vince Cable has spoken
out about the growing issue of zero-hours
contracts, saying the Government is
considering giving workers on the contracts
the right to instead request a fixed-hour
contract.
Mr Cable said there was some evidence
that employers are abusing the contracts,
particularly with regards to exclusive
contracts.
“I think that this is an area in which we need
to move forward and we are looking at how
we can best do it,” he said at the Resolution
Foundation in London last week (14th May
2014).
Labour leader Ed Miliband last month
proposed the idea of automatically giving
workers the right to a fixed contract after a
year of work, however Cable said this was
not “wise”.
The Office for National Statistics (ONS)
recently revealed that as many as 1.4 million
people in the UK are currently on zero-hours
contracts. They are popular with many
employers as they offer flexibility for both
the employer and employee; however there
has been widespread concern recently about
how they are being used. Critics say the
contracts can affect the financial stability of
workers due to there not being enough work.
Workers on zero-hours contracts also do not
currently have the same employment rights
as other workers.
Last year, Cable ruled out a total ban on the
contracts as they offer employers “welcome
flexibility”. However, he has now signalled
that there could be a re-think.
Justine Watkinson, Partner and Head of
Employment Law at Hillyer McKeown said
the issue needs to be “urgently addressed”
to ensure that there is no abuse of the
contracts.
“The contracts are popular because they
give flexibility to employers,” Justine said,
and “are particularly useful where business
is irregular and cannot be guaranteed,
because the risk of paying staff when no
work is coming in is averted.
“This means the danger of poor trading
conditions is effectively transferred to the
employee.”
Earlier in May (6th May 2014) the
Government said that jobseekers need to
accept offers of zero-hours contracts from
employers and if they don’t, could risk
losing their benefits. The figures released
by the ONS show that those currently on
the contracts are predominantly students
under 25, older workers over 65 and mostly
female.
Justine said there are arguments on
both sides. “Employers may argue their
businesses would fold altogether without
zero-hours contracts, while employees can
Vince Cable speaks out about Zero-hours contracts
FEATURE: ZERO HOURS

7. EMPLOYMENTMATTERS•ISSUEJUNE2014
7
claim such arrangements subject them to hardship,” she said.
“Their situation is similar to being self-employed in that the
employer provides no buffer against hard times.
“From a legal perspective these arrangements remain permissible
under the law, and a key point for individual employers and
employees is that each contract can and should be drafted to
reflect the bargain they have struck between them.
“The precise wording of a contract of employment is absolutely
crucial if the risk of expensive legal action is to be avoided.”
On 4th June, the Queens Speech called for a “cracking down on
abuse in zero hours contracts”. No specific details were given
were given, however speculation on social media indicated the
plans might involve giving workers the right to request not to be
put on a zero hours contract.
Have a question about zero-hours contracts and need some
advice? Contact our experienced employment solicitors here or
call us on 0845 366 4416.
“
The precise
wording of a
contract of
employment
is absolutely
crucial if the risk
of expensive
legal action is to
be avoided.
”
Vince Cable vows government will
tackle zero-hours contract abuses
Justine Watkinson,
Employment Solicitor - Hillyer McKeown

8. EMPLOYMENTMATTERS•ISSUEJUNE2014
8
Report Reveals 44% of Women
Feel Their Career is Hindered
A report from Talking Talent has revealed that 44% of women feel their career has been
hindered or will be hindered by their gender
A
survey has revealed that 44%
of women feel their gender has
hindered or will hinder their career
in the future.
The report, released by Talking Talent, a
career coaching firm, also shows that 36%
of women have experienced prejudice in
the workplace.
Over 1000 working women took part in
the research, including many working
mothers. Although 71% of mothers said
their employer is supportive of them, 37%
have experienced prejudice.
Eighty per cent of women overall said they
do feel that their employer is supportive
of their gender. However, some industries
rank significantly worse in their satisfaction
levels for women.
Accountancy is shown to be the best
sector for women to work in, with those
working in the profession submitting the
highest scores for more positive indicators
than other industries. 94% of women say
their employer is supportive of them and
they are a lot more positive about the
ability of their employer to retain female
talent; a third described their employer
as ‘excellent’ compared to a one in five
average.
Those least satisfied with their job however
are women working in advertising,
marketing and media industries. 31% of
workers in this profession said they had
faced prejudice and discrimination and
respondents rated their industry as the
worst for progression of female talent.
In terms of the support received from
employers, women working in the
engineering and manufacturing industries
rated their sector the least likely to offer
support and were the least positive about
their employer’s ability in retaining female
talent (11%). Women in this sector said
their gender is most likely to hinder their
career progress, with the majority of
respondents putting this down to a male
dominated environment.
Satisfaction levels were high in the
education and law sectors, deemed the
best for working mothers. Education
was ranked most highly for recognising
and accepting the need for a work/ life
balance, assessing the performance of
workers rather than the hours worked, and
its attitudes towards working mothers. Far
fewer mothers working in this sector saw
the lowest level of discrimination too, with
25% reporting prejudice compared with
34% overall.
Those working in law reported the highest
levels of satisfaction for the support
of working mothers – 29% described
the support they received as ‘excellent’
compared to 14% overall. The sector also
scored highest in its implementation of
career progression and the opportunities
that it offered to working mothers.
REPORT

9. EMPLOYMENTMATTERS•ISSUEJUNE2014
9
On the other hand, women in advertising,
marketing and media again rated their
industry poorly on its attitudes to working
mothers, flexible working and work/life
balance. Women working in this sector
were also more likely to say that being a
working mother had somewhat hindered
their career progress.
The results come at a time when discussions
are being had to introduce new laws for
shared parental leave and flexible working.
On 30th June this year, the Flexible Working
Regulations will be amended, meaning the
right to request flexible working will be
extended to all employees after 26 weeks
service. In addition, a review of current law
on parental law is underway, which could
see parents able to share responsibilities
in future.
Justine Watkinson, Head of Employment
Law at Hillyer McKeown, said of the figures
released by Talking Talent: “It is important
to recognise the contrasts between
industries in this research and understand
how employers can work more effectively
to improve satisfaction levels amongst
women.
“Whilst some industries, such as education
and law are providing a healthy working
environment for women with flexibility and
support, others are sadly lagging behind.
It is important to ensure that workers
feel comfortable speaking out about the
problems they are facing and to discuss
how these can be resolved. The large
figures released by Talking Talent need to
be addressed so that they don’t increase
further and risk employers losing some of
their most talented workers.”
“
It is important
to ensure that
workers feel
comfortable
speaking out
about the
problems they
are facing and
to discuss how
these can be
resolved.
”

11. EMPLOYMENTMATTERS•ISSUEJUNE2014
11
AVENTI EMPLOYMENT
H
illyer McKeown haved launched
their fixed fee support service for
employers - Aventi Employment
Solutions. We look at 10 reasons why
your business needs Aventi Employment
Solutions:
01 Support: You will have unlimited
access to specialist employment
solicitors who can support all your
employment and HR needs with complete
and commercially sound legal advice.
02 Protection: Aventi’s unique Legal
Expenses cover ensures that your
business is protected from expensive tribunal
claims.
03 Improve Cash Flow: Aventi is a
fixed fee service so you know
exactly how much it is going to cost and can
budget for the financial year knowing that all
your employment and HR advice is covered.
04 Save Management Time: Knowing
that your Managers have the
resource to resolve employment and HR
queries quickly and professionally will allow
them to spend more time focusing on the
growth and improvement of your business.
05 Compliance: Aventi will keep you
and your documentation up to
date with any changes and developments so
you have all your ducks in a row! Aventi also
offers health and safety support to ensure you
fully comply with your H&S obligations.
06 Personal Service: Aventi gives
you direct and speedy access to a
specialist employment solicitor who will take
the time to get to know you and your business
personally. Unlike other schemes Aventi does
not have a call centre. Our Aventi Service is
delivered by our technically excellent qualified
employment solicitors.
10 Reasons
Why You Need Aventi
Employment Solutions
07 Insurance: Aventi’s unique Legal
Expenses cover ensures that your
business is protected from expensive tribunal
claims. A key feature is that you are not
compelled to take our advice about an issue
to be covered by the insurance. The small
print with other schemes says you must take
advice every step of the way and follow the
advice to have the full benefit of the insurance
cover; with Aventi Employment Solutions we
offer a pragmatic and commercial approach
which allows you to run your business as you
see fit and still have the benefit of the cover.
08 Legal Privilege: We are solicitors
therefore you will never need
to disclose our advice in any court case or
tribunal proceedings. Advice given by a
non-solicitor or consultant is always subject
to disclosure to a court, no matter how
damaging the consequences to you and your
business.
09 No handcuffs: You will not be tied
in to a long contract. We are
so confident that you will benefit from our
service and renew, you can take Aventi for
just 12 months (unlike other schemes which
require a 3 or 5 year commitment).
10 Full Service: Our excellent
reputation for quality service
is supported by a full service Commercial
Law Firm. As part of Hillyer McKeown LLP
we can offer you access to the full range of
commercial legal services to complement
every aspect of your business, from buying
and selling commercial property, to dealing
with intellectual property issues, handling
commercial disputes, preparing effective
terms of business, debt recovery and
everything in between.
For more information visit:
employment-lawuk.co.uk
by
RACHEL HUGHES
Employment Solicitor
LEGAL SOLUTIONS
aventi®

12. EMPLOYMENTMATTERS•ISSUEJUNE2014
12
UPDATE: AUTO ENROLMENT
T
he Government has, for some time
now, shared its concerns that many
of us aren’t prepared for retirement,
meaning we won’t have enough money
to live on when we retire. To help us save
more, the government has introduced a
new scheme, which means that everyone
who meets certain criteria will automatically
be enrolled into a pension scheme through
work. This is called ‘Automatic Enrolment’.
By law, all employers will be required to enrol
workers into ‘auto enrolment’ if they meet the
below criteria. It is important to note that this
will be done at different stages depending
on the size of business you work for. The
scheme is nothing to worry about; it is a great
opportunity to save for a fulfilling retirement.
Are you eligible?
If you answer ‘yes’ to the following questions,
you’ll be automatically enrolled into the
Scheme (please note: if you are already
paying into a workplace pension you will not
be eligible)
• Do you work (or normally work) in Great Britain
or Northern Ireland?
• Are you aged 22 or over?
• Are you under the State Pension age?
• Do you earn at least £9,440 per year basic
pay* (£787 a month/£182 per week) through
either full or part-time work?
If you don’t meet all of the above criteria, you
will not be automatically enrolled. However,
you can still choose to join the scheme.Speak
to your employer about your options – by law,
you have the right to join a pension scheme.
How it Works
If you are eligible, you will automatically be
enrolled into the Scheme. Please note that
you will need to have been employed by
the company for at least three months to be
automatically eligible for the scheme.
Each month you’ll contribute a fixed
percentage of your basic pay (before tax)
into your pension, and your employer will
contribute too. The money you contribute to
your pension will depend on the amount of
money you are paid each month. You’ll also
receive tax relief on your payments
Your employer will set up the pension for you
along with your pension provider, so it will
not take up too much of your time. You will,
however, be kept informed of any choices you
need to make.
Once you have been automatically enrolled,
you’ll have the option to opt-out if you wish.
If you opt-out within one month of your
automatic enrolment date, the contributions
you have paid in will be refunded to you.
(Please note:if you do choose to opt-out of the
scheme, your employer must, by law, re-enrol
you into the scheme again approximately
every three years, providing you continue to
meet the eligibility criteria. You will still be
able to opt-out each time.)
When you retire, you will still be entitled to the
Basic State Pension. However your workplace
pension could give your retirement income a
significant boost.
Each Month
• Once you are enrolled on to the scheme,
you will need to pay in 1% of your basic
pay each month
• Your employer will pay in 1% of your
basic pay on top of this
• You can increase your contribution at
any time should you wish to increase
your savings, however your employer is
not be required to match these.
• You will receive tax relief on all the
contributions you have paid
Put simply, for every £100 of your basic
pay, £1 will be put in by you and £1 by your
employer - a total of £2 for every £100.
Although this may not sound like a lot at the
moment, it will soon add up over time. It’s
also a tax-efficient way to save as you will
receive tax relief on the contributions that
you pay in. If you wish, you can pay more into
the pension pot than the standard amount
required, to increase your savings in the long
run.
Have a question about auto-enrolment?
We can help you. Contact our experienced
employment solicitors on 0845 366 4416 or
via our dedicated website www.employment-
lawuk.co.uk for more information.
*Figure correct as at 22nd May 2013.
by
RACHEL HUGHES
Employment Solicitor
Guide To: Auto Enrolment
Fresh from her Auto Enrolment Seminars, Employment Solicitor Rachel
Hughes shares her notes on Auto Enrolment

13. EMPLOYMENTMATTERS•ISSUEJUNE2014
13
O
n 12th August, Hillyer McKeown’s
employment solicitors Justine
Watkinson and Rachel Hughes
will be joining Chester Voluntary Action
(CVA) at a special centenary event hosted
by the Lord Mayor of Chester Councillor
Bob Rudd at the Town Hall.
The event will celebrate CVA’s work and
achievements over the past 100 years
which have helped shape the development
of many of the local charities including
CAB, Samaritans and Chester Aid to the
Homeless, and social services which
continue to be provided today. Special
tribute will also be made to all the
volunteers past and present who have
made such a significant and enduring
contribution to the local community.
CVA was set up in 1914 days after the
outbreak of WW1 as the ‘Council of Social
Welfare’ to coordinated the provision of
vital assistance on the home front and
provided relief aid to support families
whose main breadwinner was away in the
services, wounded or killed, and those
affected by unemployment arising from
the disruption of trade.
CVA continues to support local voluntary
and community organisations by providing
a wide range of advice and support services
to its 380+ members around governance
and funding, and also specialist services
such as its Volunteer Centre and Skillshare
initiative. This vital support enables local
charities and voluntary groups to become
stronger, more effective, efficient, and
sustainable, and therefore be better able to
successfully deliver vital quality front-line
services for some of the most vulnerable
people in our community.
by
SARAH LOWE
Features Editor
FOCUS: NOT FOR PROFIT
Celebrating 100 Years in Chester
Employment Lawyers Hillyer McKeown join Chester Voluntary Action to
celebrate their work and achievements over the past 100 years

14. EMPLOYMENTMATTERS•ISSUEJUNE2014
14
C
Commencing the 30th June 2014 the government will
be implementing new changes in the law on Flexible
Working. The current statutory procedure that employers
must follow when considering flexible working requests will be
replaced with a duty on employers to consider all requests in a
reasonable manner.
Current Position
The law as it stands at the moment is as follows; in April 2003
the Employment Law Act introduced the rights for parents of
young and disabled children to apply for flexible working hours.
In 2007 this right was extended allowing carers of adults to also
apply for flexible working hours.
To apply for flexible working you must be an employee with a
contract of employment and are required to have worked for
the employer for 26 weeks continuously at the date that the
application was made. An application will only be valid if the
employee has a child who is 16 or under, or in the case of a
disabled child under 18. The Work and Families Act states that
an adult carer must either be married to the person they are
caring for or must be a relative of said person.
Changes coming June 30th 2014
On June 30th 2014 Flexible Working Regulations will be
amended. This will mean that the right to request flexible
working will be extended to cover all employees after 26 weeks
service. The government wants to remove the assumption that
only parents and carers can use the system of flexible working
hours. This may cause a knock on effect opening up more jobs
for people who have the opportunity to be flexible with the hours
and times that they work as opposed to being constricted to a
job which may not suit their lifestyle.
Business Minister Jo Swinson has stated: “The new system is
good for business as it will create a more motivated and flexible,
talented workforce. Employers will be able to attract and retain
women and prevent them from dropping out of the world of work
once they start a family. Flexible working will also help widen the
pool of talent in the labour market, helping to drive growth.” (i)
The Future
On the 5th April 2015 a new system of shared parental leave is
expected to be introduced which will be available for parents of
children who are due to be born or placed for adoption with them
on or after April 5th 2015. This means that employed mothers
will still be entitled to 52 weeks of maternity leave however they
can return after the initial two weeks of recovery and the parents
can then choose how they will share out the remaining leave
which they are legally entitled to.
Fathers will also gain a new right to take unpaid leave to attend
two antenatal appointments. This will ultimately enable parents
to make their own decisions about who will stay at home and
who will go back to work. It should eradicate the concept that
women typically stay at home and men go to work giving parents
the freedom to choose their own parenting style.
(i) https://www.gov.uk/government/news/shared-parental-leave
by
ERIN OCSKO
Contributor
FLEXIBLE WORKING
New Changes to
Flexible Working
Beginning on the 30th June 2014, the government will be implementing new changes in the
law on Flexible Working. Erin Ocsko takes us through these changes.

16. EMPLOYMENTMATTERS•ISSUEJUNE2014
16
World Cup
FEVER
Dubbed ‘World Cup Fever’ almost two thirds of workers surveyed
by Canada Life Group expected to pull a ‘sickie’ if their team
reached the semi-final or final in this year’s World Cup.
The study of almost nine hundred employees found a small
number willing to take an unauthorised day off when they were not
sick at any point during the World Cup, with men more than twice
as likely as women to pull the sickie (14% and 6% respectfully).
With this year’s World Cup held in Brazil the significant time
difference will play a greater role in the likelihood of employees
pulling sickies before and after the match. Almost half of all men
and 41% of women say that the time difference means they are
more likely to call in sick.
What can you do to avoid an empty office?
According to the Department for Work and Pensions, more than
130 million days are lost each year to sickness absences in the
UK, costing employers around £9billion in sick-pay and associated
costs. Although it’s undeniable that the number of unauthorised
absences will spiral during the World Cup, there are a few actions
that employers can take to help mitigate a total epidemic.
Over a third of the employees in the study suggested that moving
to flexible working (35%) or having the ability to work from home
(30%) would help to mitigate the potential for taking unnecessary
sickies. Showing the matches at work was another popular choice
with 18% of the employees surveyed suggesting that would
encourage them not to call in sick the day of a match.
Unsurprisingly though, airing the match at work wasn’t the most
popular choice when you take into consideration that 40% of the
respondents expected to consume alcohol whilst watching a game
(47% men v 34% women).
Canada Life Group Insurance’s marketing director Paul Avis
reinforced the need for employers to talk with their employees:
“with almost one in ten employees prepared to call in sick when
they’re not ill during the tournament, it’s important that employers
do their best to prevent the ‘World Cup Bug’ spreading and
resulting in empty offices.”
During the Euro 2004 the supermarket Asda offered its staff
‘German Jolly’ unpaid leave for up to two weeks during the
tournament. It claimed the offer as well as a shift-swapping
scheme helped reduce absenteeism.
Which of the following would most encourage you not
to take unnecessary sick leave during the World Cup?
• Flexible working hours 35%
• Ability to work from home 30%
• Matches being aired at work (wherever possible) 18%
• Being rewarded or incentivised for turning up to work 9%
• The option to take time off as unpaid leave 5%
• Less stigma surrounding taking annual leave for sporting events 4%
Source: canadalife.co.uk/group/Default.asp (May 2014)
by
SARAH LOWE
Features Editor
FEATURE: WORLD CUP

17. EMPLOYMENTMATTERS•ISSUEJUNE2014
17
Is a ‘sickie’ gross misconduct?
Absenteeism, where the sick day is
unexplained, where no reason is given at
all or where the employee admits ‘taking
a sickie’ may be seen as misconduct.
However, even this may vary between
employers, depending on what is stated
in their company handbooks and if the
employer can prove that the employee
was not sick. Indeed it is quite difficult
to prove that an employee is not really
sick if they have one day off, particularly
if most company sick policies provide for
the employee to self-certificate for the first
day of their absence.
What constitutes gross misconduct
may vary according to the particular
circumstances of the employer and the
work the employee is carrying out.
Acts of gross misconduct include:
theft, fraud, physical violence, serious
negligence or serious breach of health and
safety regulations, and for most employers
- being intoxicated whilst at work. All will
result in a serious breach of an employee’s
contract of employment or employer’s
policy.
Proving gross misconduct can be difficult
and must take into account all of the facts
of the employee’s situation as well as their
employment record. Employment Tribunals
and courts will challenge the fairness of
an employer’s disciplinary rules and their
resultant penalties if relatively minor
offences, such as an employee ‘sickie’,
are characterised as major breaches of
discipline.
It is necessary for an employer to at
least consider whether there are any
extenuating circumstances that would
render summary dismissal on the basis
of gross misconduct unfair. Furthermore
the likelihood that an employee is willing
to take a sick day during the World Cup
may point to deeper problems with the
happiness of the employee, the quality of
management they receive, their working
relationships and with the design of their
job.
Handling a case of misconduct
If after you’ve taken reasonable steps as
an employer to mitigate the chances of
absenteeism over the World Cup and can
prove the misconduct of an employee,
either taking a sickie or coming into work
intoxicated, how can you ensure that you
correctly handle their disciplinary? We’ve
compiled five top tips for employers when
dealing with gross misconduct:
1 Document Everything
It is very important to keep records
of all meetings. You should take witness
statements from protagonists of the
misconduct, including the employee, their
workers and line manager.
2 Consider Legal Advice
You should do this at the earliest
possible opportunity. You need to contact
your company’s legal department
or employment solicitor as soon as
possible. This should involve looking at
discrimination and health and safety policy
where there is evidence of a breach.
3 Look at the Company Policy
Your company should have a policy
on Gross Misconduct. You need to look
at this carefully to assess whether this is
indeed an incident of Gross Misconduct or
a lesser conduct offence.
4 Consult Senior Management
You may need to bring in senior
management to any meetings with the
employee.
5 Consider Security
Some incidences of Gross Misconduct
may need the employee to be immediately
escorted from the premises. You should
contact your security department at the
earliest possible opportunity. This may be
the case when theft has taken place. You
may also decide to contact the police.
6 Look at Discrimination Law
You will need to ascertain exactly
what the employee has done. Legislation
is constantly changing around unfair
dismissal so you need to be sure that you
have up to date legal advice.
7 Look at the Appeal Process
It is likely that the employee will
appeal against a decision of gross
misconduct.They may even decide to bring
in their Trade Union or Staff representative.
You need to be sure that you understand
the appeal process completely.
8 Consider the Facts
In each meeting you need to
concentrate on the factual elements of the
case. Emotions can easily get in the way
of making objective decisions.
9 Make a Decision
Your decision needs to be clear
and communicated in an effective and
unambiguous way to the employee. They
need to be told in writing what they
have done. If you decide to dismiss the
employee then this should be done in
compliance with employment law.
10 Review the Case
It is always a good idea for
organisations to consider misconduct
cases and to try and learn from what
happened. This can involve a review of the
misconduct policy to try and iron out any
problems, particularly with an employee’s
job design and the quality of management
they receive.
Are you facing ‘World Cup Fever’ at work
or a difficult disciplinary with an employee?
Enquire online and speak to one of Aventi’s
advisors about their fixed-fee HR support
service or call 0845 366 4416

18. EMPLOYMENTMATTERS•ISSUEJUNE2014
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WHISTLE BLOWING
A
police officer has lost an unfair
dismissal claim after it was ruled
that his conduct in making a
legitimate complaint had resulted in him
becoming “unmanageable”.
During his time with the police force, the
officer made several complaints about
the attitude towards victims of rape, child
abuse and domestic violence that he
witnessed in some of his colleagues. The
complaints were protected disclosures
within the Employment Rights Act 1996.
While the officer’s complaints were mainly
upheld, he remained unhappy with the
way they were dealt with. He believed that
punishments to the perpetrators didn’t go
far enough.
He took up a lot of the management’s time
with the issue and also spent a lot of time
at home on sick leave. He was eventually
dismissed because of his association
with his wife’s business, which senior
officers said represented an “incompatible
business interest”.
He brought an action against the force
claiming that the complaints he had made
were the principal reason for his dismissal.
However, the tribunal held that his actions
following the complaints would have
exhausted the patience of any organisation.
He had become unmanageable and that
was why he had been dismissed.
The Court of Appeal has upheld that
decision. It said that the officer wouldn’t
accept any answer other than the one he
felt appropriate following his complaints
and had become unmanageable.
Rachel Hughes, Employment Solicitor
at law firm Hillyer McKeown, said: “In
this case, the employee was evidently
unsatisfied by his employer’s handling
of the multiple complaints he made, and
proceeded to pursue each matter and work
towards his desired outcome. Ultimately
he took up large amounts of management
time and the combination of this and his
long term absence contributed to his
ultimate dismissal.”
For more information and updates on
important employment tribunal cases, sign
up to our fortnightly newsletter:
Hillyermckeown.co.uk/newsletter
Whistle-Blowing Policeman Dismissed
After Becoming ‘Unmanageable’
by
RACHEL HUGHES
Employment Solicitor

19. EMPLOYMENTMATTERS•ISSUEJUNE2014
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by
ERIN OCSKO
Contributor
EMPLOYMENT TRIBUNALS
T
he recent case of Lyons v DWP
Jobcentre Plus has highlighted an
employment issue of whether it
is appropriate or legally acceptable for a
woman to be dismissed during or after her
pregnancy. The EAT considered whether
Miss Lyons, an employee, who was
dismissed following a period of absence
owing to post natal depression had been
discriminated against because of her
pregnancy and/or sex.
The Facts of the Case
Ms Lyons (L) carried out her 6 months
maternity leave which she was legally
entitled to and had then arranged to take 6
weeks annual leave directly after.
During her maternity leave L had been
diagnosed with post natal depression
leading to a subsequent declaration of her
being certifiably unfit for work for at least
a month, two days before she was due to
return to work. L had previously suffered
from periods of depression and had been
emotionally affected by being involved in
a car accident. The employer (D) said they
were no longer able to support her absence
as it was unlikely she would return within a
reasonable time.
She was dismissed, and lodged claims of
unfair dismissal, direct sex discrimination
and/or pregnancy and maternity
discrimination.
Decision
The EAT dismissed L’s complaint of
pregnancy discrimination under the
Equality Act s.18 because although she
may have been treated unfavourably during
a pregnancy related illness, the treatment
had occurred after the end of her maternity
leave period. She could not therefore
rely on s.18 of the Act as the treatment
occurred outside of the ‘protected period’.
It was also found that D’s treatment of L did
not amount to less favourable treatment for
the purpose of sex discrimination within
s.13 of the Equality Act as there was
an absence of an appropriate, actual or
hypothetical male comparator.
The Law
Section 13 of the Equality Act states that,
“a person (A) discriminates against another
(B) if, because of a protected characteristic,
A treats B less favourably than A treats or
would treat others” subsection 6 “if the
protected characteristic is sex”.
Going forward, following the decision in
this case, with adverse treatment to other
gender specific absences an employee
such as Miss Lyons will not succeed
with a sex discrimination claim unless
she can prove that she has been treated
less favourably than an appropriate male
comparator.
Section 18 of the Act states that “a person
(A) discriminates against a woman if, in the
protected period in relation to a pregnancy
of hers, A treats her unfavorably – (a)
because of the pregnancy, or (b) because
of illness suffered by her as a result of
it”. Sub section 6 goes on to say “the
protected period, in relation to a woman’s
pregnancy, begins when the pregnancy
begins, and ends – (a) if she has the right
to ordinary and additional maternity leave,
at the end of the additional maternity leave
period or (if earlier) when she returns to
work after the pregnancy, or (b) if she does
not have that right, at the end of the period
of 2 weeks beginning with the end of the
pregnancy”.
The EAT’s decision confirms that periods
of pregnancy related illness outside the
protected period do not attract special
attention.
According to employment law pregnant
women do have special protection with
regards to dismissal and unfavourable
treatment but only during the protective
period, once their maternity leave has
ended the special protection has also
ended therefore allowing action to be taken
against them if necessary.
For more information and updates on
important employment tribunal cases, sign
up to our employment news bulletins by
email.
Woman Dismissed For Post
Natal Depression

20. EMPLOYMENTMATTERS•ISSUEJUNE2014
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SICKNESS & ABSENCE
F
igures released by the Office for
National Statistics (ONS) have
revealed some interesting statistics
on sickness absence during 2013.
The ONS reported that in 2013, 131 million
sick days were taken by employees in the UK.
Some of the biggest reasons included:
ll 31 million days of sickness absence
were taken in 2013 as a result of
back, neck and muscle pain.
ll 27 million days were lost as a result
of minor illnesses, such as colds.
ll 15 million days of absence were
taken due to mental illness, such as
stress, depression and anxiety.
The Gender Divide
ll Women were more likely to be absent
from work than men
ll Men lost 1.6% of their hours as a
result of sickness in 2013
ll Women lost 2.6% of their hours to
sickness.
Businesses Most Affected
The caring and leisure industry was hit
hardest by sickness absence in 2013 - 3.2%
of hours were lost in 2013.
The ONS identified that these sectors are
predominately made up of women, who are
more likely to take sick days than men.
Sickness absence rates were lower in the
private sector in the past year but the gap
has narrowed between the public and private
sector over the last 20 years.
In an analysis of the larger public sector
organisations, the health sector saw the
highest rates of sickness.
Managers, directors and senior officials are
less likely to take absence due to sickness,
according to latest figures.
Sickness Absence Letters
Download a sickness absence template letter
free from Employment-lawuk.co.uk. The
letter invites an employee to a formal meeting
to discuss a long period of sickness.
by
RACHEL HUGHES
Employment Solicitor
Sickness Absence
by Numbers
Latest figures from the Office of National Statistics reveal some
interesting statistics on sickness absences during 2013

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