The Legal Column - October 2012

08 November 2012

The experts at Workplace Law address your legislative and compliance issues.

CCTV and disciplinary

Q: We have a disciplinary issue whereby a client has made complaints against a member of staff and their timekeeping, specifically coming in late and leaving early. In the initial disciplinary meetings the employee assured us it was an isolated incident. The client has now advised they can provide CCTV footage to prove other times the member of staff was leaving site. Are we able to use this evidence as part of our disciplinary?
A: If you are still at the investigation stage and have not started disciplinary action you can look at the CCTV footage, meet with the employees involved, show them the footage and ask for their feedback.

If you have already entered into the disciplinary hearing process and have adjourned prior to making a decision, you can still use the footage but you would have to re-commence the disciplinary meeting in the light of the new evidence. You would need to provide it to the member of staff beforehand, so that they can formulate a defence and address it during the hearing.

With regards to the use of CCTV footage in any disciplinary process, as long as your policy is clear that it can be used, or staff were aware that CCTV is in operation at their place of work, then this can be used as a reasonable piece of evidence. Where the CCTV was covert and set out to entrap employees, this should not be included.

Corrective appliances
Q: What is the legal requirement for an employer on providing glasses for work requiring very close up or detailed work (not display screen equipment), for operating equipment/machinery and driving?
A: There is no legal requirement to provide glasses to workers performing detailed or close up work. However, the duty of care imposed to all employers by the Health and Safety at Work etc. Act 1974 and the duty to carry out risk assessments (Management of Health and Safety Regulations) stands, so if you have identified that there is likelihood of eye damage caused by the activities carried out in your workplace, this hazard must be included in your risk assessments and control measures put in place to prevent such damage or the worsening of existent conditions.

This includes the installation of magnifiers, improving task or specific lighting and job rotation to prevent eye damage as part of your duty of care towards your employees.

Deduction in salary
Q: Can you legally cut someone's salary in half and expect them to work the same hours? With other people being made redundant, the firm wants to offer this option to one of them rather than redundancy. Would this not leave the firm wide open to a constructive dismissal claim?
A: In relation to any decrease in salary you have to gain the employee’s agreement to the reduction otherwise there is a potential breach of contract issue in that you are failing to provide the agreed salary and unlawful deduction of wages.

If you are looking at people to take a salary reduction in order to mitigate the need for redundancies you need to gain agreement from the entire workforce to make the changes rather than just select one employee to have the reduction.

If you have a question that you would like addressed in this column please email it to the editor at tim.fryer@imlgroup.co.uk