Rioting and Employment Rights

The recent rioting across the UK has led to a number of queries in relation to people’s employment rights. 

In relation to those who were involved in the rioting, what will happen about their employment if they have been arrested and subsequently prosecuted?

In addition, what happens to those who are unable to go to work because their workplaces were attacked in the riots?

As stated in the ACAS Code of Practice, “If an employee is charged with, or convicted of, a criminal offence, this is not normally in itself reason for disciplinary action”. Essentially, for the criminal conduct to be a disciplinary or dismissible offence it must affect the business in some way or undermine the employer’s confidence in the employee.

In terms of those involved in the rioting and looting, it is clear from the press reports that the Courts are dealing with those individuals very seriously and the majority are receiving custodial sentences.  Much personal information has appeared in the press about those convicted, including in some instances the name of the employer.

Given the seriousness of the incidents, some employers may be inclined to summarily dismiss those individuals for gross misconduct for bringing the company into disrepute.  Dismissal in these circumstances might be looked upon sympathetically by the Tribunals.  But arguments will differ depending e.g. on the degree to which the employee has exposure at work to or dealings with the public (in the past cases have been decided against probation workers where their work brings them into contact with young offenders; criminal convictions for rioting are not consistent, it is said, with that sort of work).

If an employee is unable to attend work for personal circumstances, for example if their house has been damaged in the rioting, then that employee needs to be aware that they will not necessarily be entitled to be paid for any time that they have off, unless there is some provision in the contract which says so.  If there is no contractual term then the employer can lawfully withhold pay until the employee returns to work. 

However, if the employee is unable to work because the workplace is closed, then assuming the employee is otherwise ready and willing to work, then the employer must continue to pay their wages, unless there is an express contractual right that the employee can be laid off without pay.  If there is such a contractual right, then those employees may be able to claim a guaranteed payment. 

If the workplace has been completely destroyed then there is an argument that the employment contract has been frustrated because there has been an unforeseen event which makes the parties unable to perform the contract.  If the contract has been frustrated then there has been no dismissal which means that the employee would be unable to claim unfair dismissal and they also would not be entitled to receive any notice.

Somewhat unusually, if there has been an unforeseen event which has led to the contract being frustrated, the employee may be entitled to receive a statutory redundancy payment under s.136(5) Employment Rights Act 1996, which specifies that such a situation is to be classed as a termination by the employer for redundancy pay purposes.

However, frustration is a difficult point for an employer to take: the situation may better be dealt with simply as a redundancy situation and the employee may be able to claim redundancy pay as well as still having an entitlement to notice.

If you would like to speak to us about bringing a claim or are interested in further information on employment rights, please contact our employment rights team on 0113 245 0733.

State landed with £3m Jarvis bill

THE 1,200 staff who were sacked without warning by failing rail firm Jarvis are to be awarded more than £3m compensation - more than it would have cost to keep the company afloat.

The employees - of which 350 were based in York, 300 in Doncaster and 80 in Leeds - arrived for work on March 31 last year to be told they were unemployed. As a result the company failed to meet its statuary obligation to consult and give notice so the staff will be entitled to eight weeks compensation, capped at £380 per week. As Jarvis is no longer operating, it will be the Government which pays the bill and a tribunal court in Leeds yesterday heard that any staff who were unable to find work and therefore claimed Jobseeker's Allowance will have that, and any other relevant benefits, docked from their compensation.

The staff all worked for Jarvis Rail, Jarvis Fastline or at the York headquarters, Jarvis PLC.

Union bosses said it was disappointing that a number of workers, particularly those holding management positions, found employment swiftly and would therefore get more compensation than those who have been left jobless. It is also understood that administrators Deloitte went to Network Rail - owners of Britain's rail infrastructure - to request around £3m to keep the company going and retain staff but this was turned down.

Bill Rawcliffe, of Justice for Jarvis Workers and a member of the RMT Union, said: "This is only the first hurdle and the result is pretty much what was expected because employment legislation clearly states if you do not receive notice you are entitled to claim compensation.

"We think it is a disgrace that the compensation is being paid for by the taxpayer - that money should be paid by Network Rail which owed millions in work that had been already carried out by Jarvis workers.

"What is also difficult to take is compensation will have Jobseeker's Allowance and other benefits knocked off, but the management who did not have to claim benefits as they went round the revolving door and straight into other jobs will get the whole payout."

A Network Rail spokesman was unable to comment last night. About half of the organisation's budget is public money.

Unions claim some workers, who were also based in Glasgow, Newcastle, and Peterborough, were owed money for months before the company closed. Talks between Network Rail and the administrators officially finished in April 2010.

The fallout prompted a number of protest rallies, and Mr Rawcliffe claimed that workers from other parts of the UK have been carrying out the rail engineering work.

Unions were unable to say how many of the 1,200 had now found employment, but Mr Rawcliffe said those they knew of in work were now earning 30 per cent less in wages.

The tribunal yesterday heard that the company had no money at all to pay staff by March last year.

Claims against Jarvis will continue with at least 600 unfair dismissal claims likely to be made. Toni Haynes, of Morrish Solicitors, represented the members of the TSSA union at the tribunal.

"We are obviously pleased with the compensation offer - it is the maximum that we could have asked for," she said.

"Not all of the staff will receive all of that money, it will depend on their individual circumstances and what they have already received in other benefits.

"But what is clear is that the amount of money to be paid out of the public purse, is more than the £3m the administrators needed in the first place to keep the company afloat and these people in work."

- Reproduced with kind permission of The Yorkshire Post and Johnston Press

Employers need to grasp the benefits of flexible working!

A recent report by Dan Leighton on Re-inventing the workplace has highlighted the significant benefits which Flexible working brings to the workplace. In addition it can aid the UK company growth.

Employers need to recognise huge demographic changes in the UK workforce. With an ageing population, more women in the workplace and a shift from manufacturing to service based industries has in recent years increased the demand on employers to introduce and offer more flexibility within the workplace. However, some employers still fail to see the benefits.

The fundamentals of flexible working assist in coping with the  work/family life balance. It is essential for those companies who wish to attract and retain the best talent to implement such policies positively and  promote them within the workplace. On a wider perspective, the benefits are numerous. They  can address the social challenges of shared parenting and an ageing population that requires care. They can also reduce  sickness absence and increase motivation within the workplace.  

Employers need to grasp the benefits sooner rather than later!