Tribunal Awards set to increase from February 2012

Just as everyone starts to enjoy some festive cheer, details of how Tribunal awards are going to increase are released.

As from 1st February 2012, new limits for compensation will come into force.

The main changes that employers need to be aware of if that for anyone making a claim in the Tribunal , the maximum rates that they will be able to recover will increase. Largely the increases are in line with the Retail Price Index but even so, any claims that need to be met are going to become more expensive.

The maximum amount that can be awarded for a week s pay will increase from £400 per week to £430 per week, in turn meaning that the maximum compensatory award that the Tribunal will be able to make will increase by £3,900 to £72,300.

Time to cancel Christmas

Cancelling the Christmas party this year might not just save you money in these tight economic times but it may also save you ending up in the Employment Tribunal.

If you are going to celebrat Christmas still and you will provide drinks at the office party, limit the number of free drinks and make sure there are plenty of non alcoholic choices available. This will avoid any issues of religious discrimination. Be prepared to send an employee home if their conduct becomes inappropriate.

Remember that employers can be held responsible for employee’s actions during and after the Christmas party. If your employees have been drinking make sure that they don’t drive home, especially in the Company vehcile, and give some thought to providing pre-arranged transport. It doesn’t have to be at your cost but paying for a cab or mini bus could save you a lot in the long run.

Driving whilst under the influence of drink or drugs in the course of employment can have serious consequences for an employer at Christmas, or any other time. If your employee causes a death as a result of driving under the influence you as the employer can be held liable and the Courts have the power to order huge fines that could bankrupt a small company. Even worse, you could be faced with a prison sentence for corporate manslaughter.

If you are planning on decking the halls of the office with boughs of holly you must also be aware of health and safety issues. The Royal Society for the Prevention of Accidents last year reported that over 1,000 people were injured by unsecured Christmas trees. If you are planning on party balloons, just be aware that over 3.6million people have a latex allergy.

Needless to say, it is essential to make sure that you have an up to date policy and a no-nonsense approach to disciplining any employee found to have acted untowardly at any Christams party or indeed even in the office and it is essential those who are found to be driving whilst under the influence are dealt with swiftly and fairly. Getting this right isn’t just for Christmas.

The cost of illness

With the cold weather about to start again it is inevitable that employers will be faced with staff illnesses but employers need to be aware that having a good sickness absence policy is key to making sure that employees are monitored appropriately.

It is estimated in the UK that about 172 million working days are lost due to sickness every year, costing the economy around £13 billion. Even with such high numbers it is estimated that there are still 28% of employers who do not have a formal sickness reporting procedure.

Employers must make sure that they have a sickness absence policy setting out clearly who to report, by what time they should report any absence and how they should report their absence. Employers should make sure hat they ask the employee what’s wrong, how long they think they will be off for and make a proper note on their personnel file. All line managers should know what the policy is and actively apply it.

If it looks like an employee may be off for sometime, make sure that you keep in contact with them and keep them fully informed about their entitlement to sick pay, contractual and otherwise. Be flexible and try and encourage an employee back to work by making simple changes to their role or workplace if necessary and consider a phased return to work.

When employees do come back, there should be a quick return to work interview, where they are asked about the cause of their absence. Again keeping g a proper note of the return to work and asking the employee to sign means that you will always have something to refer back to if you think that their absence is becoming a problem.

If people are regularly off sick and there is a pattern to their absence you need to speak to them sooner rather than later but be sure of the issues. For example work out a percentage of time off compared to others. Speak to them in private and ask them what the problem is.

It may be that they are off on regular occasions as a result of something that you can help them with, for example unfavourable behaviour by another employee or concerns about their work or workload. If it appears that there is no acceptable explanation behind their absences then tell them that if their attendance doesn’t improve then the next step will be disciplinary action.

Employers able to save £6 million

The Business Secretary Vince Cable and the Chancellor George Osborne this week announced changes to bringing unfair dismissal claims which could save employers across the country, nearly £6 million per year.

As from 6th April 2012 the qualifying period for bringing an unfair dismissal claim in the Employment Tribunal will be increased from 1 year to 2 years.

The Tribunals were originally set up to ensure that there was a cheap and relatively easy way for employees to bring claims against their employers without the need to go to the courts. The current government now intend to bring in charges to the Tribunal which will make them expensive and out of the reach of some.

When a claim is lodged in the Tribunal an upfront fee of £250 will need to be paid and a further £1,000 will be payable where a hearing is listed. If the damages sought are going to be in excess of £30,000 then the fees will be higher.

Although the fees will be refunded where a claim is successful, if a person remains out of work then the costs are likely to put a significant number of people off bringing a claim, even if their claim is not vexatious. Potentially the announcements could mean that employees are going to be unable to enforce their rights but it was also announced that those with no money would have the fee waived. There is very little detail at this stage as to who would qualify for the fees to be waived although perhaps the most likely way of assessing this is that those receiving income support will qualify.

The reality of the announcements are that although employers will have a longer period of time within which to see whether an employee is performing appropriately, they should be very wary that there may well be an increase in the number of discrimination claims on the basis that there will still be no qualifying period for such claims.

As always with such announcements more details will follow.

How could employers be affected by the recent riots?

After the number of problems caused by riots and unrest across the country, many employers are counting the cost to the business both in terms of the damage caused and the loss of business. Many employers also need to take into account the effect that the riots will have on their obligations to employees. There are four main issues that employers may need to consider.

1. Time Off

One of the main concerns that employers may have is where they have had to close the business for a period of time as a result of damage caused and what they need to do for employees.

If employees are ready and willing to work but employers are not able to provide them with work, employers will still be obliged to pay them in full unless there is a lay off or short time clause within their contract. Employers must therefore give consideration as to whether they are able to provide any other work even if it is at a different location.

Employers may be able to allow the employee to work from home or from a different office which it is reasonable to travel to or possibly the employer may be able to find suitable alternative work for the employee to do. This could be simply asking the employees to help out with the cleanup operation, provided of course any health and safety requirements are adhered to. Putting employees at risk of injury for example could leave employers open for substantial personal injury claims.

Employers must be aware however that they cannot force employees to carry out duties other than their normal ones, unless the contract of employment allows such a degree of flexibility.

If the employer finds that the business will be closed for some time and there is no lay off clause, the employer should seek an agreement to a reduction or pay suspension from the employees affected. Failure to make normal payments to employees could result in a claim for breach of contract, unlawful deduction from wages and potentially even constructive dismissal.

If the contracts allow for reduced pay, employers are likely to only have to pay the Statutory Guarantee Pay (SPG). The current rate is £22.20 per day, or the employee's normal daily pay if less. The SPG is only payable for a maximum of one working week per three-month period and is only payable to employees who have been employed for at least one month.

Employers may need to consider requests for time off for dependants. For example, where an employee is being forced to take time off perhaps where a school club has been damaged. If childcare arrangements unexpectedly break down, employees are permitted to take unpaid leave.

If however the employee requests to take the time off as annual leave, then it is for the employer to consider whether they are happy to waive the notice period for any holiday requests. Obviously employers should bear in mind that a degree of flexibility is likely to help staff morale although they are not obligated to consent to the annual leave being taken.

2. Loss of the business

Some businesses may be unable to trade at all in the future perhaps due to the premises and stock being totally destroyed as was the case with the House of Reeves building in Croydon. Where the business will not be able to continue trading potentially there is an argument that the contract of employment has been frustrated.

This means that the contract comes to an automatic end and there is no dismissal by the employer meaning that the employee will not be entitled to notice or pay in lieu and will not be able to make any claim for unfair dismissal. Employees could perhaps make a claim for redundancy under section 136 (5) of the Employment Rights Act 1996.

3. Transport issues

Some employees may have suffered from transport issues during the time of the unrest and may have perhaps arrived to work late or simply failed to turn up at all.

Where employees arrive late, there is no requirement for them to be paid for the period of time that they are not at work. Employers should bear in mind however that those employees should be allowed the opportunity to perhaps make up the time and it would certainly be unfair to take disciplinary action.

If the employee is not able to have attended work due to the transport problems, then it is not necessary for employer to pay them although it would be open to the employer to see whether they wanted to take the day as annual leave, unpaid leave or make the time up at a later date.

Any employee who had not let you know that they were not able to attend work and failed to give any appropriate reason is able to have a disciplinary procedure brought against them in line with the company's disciplinary procedures.

4. Employees arrested, charged or prosecuted

If employers have employees who are arrested, charged and subsequently convicted of any offences as a result of the riots, employers will need to give careful consideration as to whether they want to pursue disciplinary action.

Employers should not take any disciplinary action just because an employee is charged with an offence outside of work. If that employee is remanded in custody until trial, it is unlikely that they will have to be paid. If an employee subsequently receives a custodial sentence, employers may then be able to dismiss the employee concerned provided that the correct disciplinary procedures are followed. Alternatively it is possible that any contract of employment could be frustrated although employers should make sure that each case is treated on its own merits.

It is possible that employers could dismiss employees for gross misconduct if the conduct is relevant to the employers business, for example if a shop worker is convicted of theft or looting.

Any allegation that a dismissal would be on the basis of having brought the employer into disrepute is likely to be difficult unless for example it is clear that the employer was implicated. Perhaps the most obvious example would be where a rioter was clearly seen to have been wearing the employer’s uniform.

Corporate Manslaughter: Know the risks.

In February of this year, Cotswold geotechnical Holdings became the first company to be convicted under the Corporate Manslaughter and Corporate Homicide Act 2007. It was fined £385,000 after an employee was killed when a trench that he was working in collapsed in unnecessarily dangerous conditions.

Employers need to be aware that they have a general duty to ensure, as far as reasonably practicable, the health and safety of employees at work. They can be found liable for corporate manslaughter if its breach of care is particularly serious and causes an employees death. Although directors and managers can not themselves be liable for corporate manslaughter, they can be prosecuted separately for manslaughter or other offenses under health and safety legislation. Employers need to ensure that they minimise the risks of any liability by;

1. Ensuring the organisation complies with its general health and safety obligations, including any industry or sector specific duties.

2. Appointing a senior manager or director to oversee health and safety at the employers workplace

3. Considering where appropriate an independent audit of health and safety management systems and compliance

4. Providing training for staff on health and safety issues and safe working practices

5. Implementing processes to ensure that health and safety issues are reported up the management chain

6. Ensuring adequate records of compliance with health and safety are kept and properly monitored.

Employers should ensure that they do not overlook any circumstance where company cars are required to be driven. Employers need to ensure that they have systems in place that requires the safety of the vehicle if used for work purposes being checked as well as where appropriate, the fitness to drive of employees. Failure to for example have an adequate policy in place relating to driving under the influence of drink or drugs, may result in possible convictions.

The Department for Transport and the Health and Safety Executive do have guidelines and best practice for managing work-related road safety but employers must ensure that these guidelines are incorporated into an adequate policy and procedure.

Its not all about the pregnant lady

Employers are often surprised when men claim for sex discrimination as there is a fairly generalised view that only women can claim sex discrimination.

The recent case of, Evershed's legal services Ltd v Bellin has really highlighted that this is not always the case. The case itself also makes employers aware that just because somebody is on maternity leave they should not unfairly disadvantage male employees.

Mr Bellin was a solicitor who was placed at risk of redundancy alongside one of his female colleagues who at the time was on maternity leave.

A scoring system was put in place and a score was given for "lock-up" which is the time it takes for a solicitor to secure payment from clients for work done.

Due to Mr Belin’s female colleague being on maternity leave, she was given maximum points for lock up which meant that Mr Bellin was then only given a low score of 1.5.

This meant that Mr Bellin's score was 27 and his colleagues was 27.5. it was argued during the consultation exercise that alternatives could have been used such as;

1. giving both candidates a notional score of 1

2. averaging her performance over a 12 month period

3. scoring at the last convenient date before she started maternity leave i.e. the end of December 2007.

Had the firm adopted the last suggestion then the two scores would have been the same.

The Employment Appeal Tribunal found that although there are circumstances where those on maternity leave are given special treatment in comparison to their male and female colleagues, that special treatment should not go beyond what is reasonably necessary to compensate them for the disadvantage occasioned by their condition.

Employers must ensure that although an employee who is made redundant while on maternity leave does have the right to any suitable alternative vacancies ahead of any other employees, when deciding who to make redundant, automatically favouring a female employee on maternity leave does not always mean that it would not unfairly disadvantage male employees allowing them to successfully bring a claim for sex discrimination.

Equally this is something that may well affect more men in the future particularly with enhanced Paternity rights.

Its just a bit of gossip......

Every workplace has a degree of workplace banter and gossip and it is practically impossible for an employer to stop it however, an employer does need to be aware that even where an employee actively participates in banter, they can find the banter or gossip to be offensive.

For example in the case of Thomas Sanderson blinds v English, the employee was a straight male but because he lived in Brighton and had gone to a boarding school, he was teased about being gay. He did participate in the banter himself however, he finally lodged a complaint in relation to an article that was written about him and which was seen by his family.

He subsequently resigned and claimed harassment on the grounds of sexual orientation. The Employment Appeal Tribunal found that he had participated in the banter and innuendo, it could not constitute harassment however, the one article which had clearly offended him was harassment and his claim was therefore successful.

Similarly, in another case, a female employee was in a relationship with a work colleague but was seen kissing another colleague at the works Christmas party and then going in to his hotel room.

A short while later the employee discovered that she was pregnant and informed her managing partner. In turn he informed the HR manager who then started gossiping with other members of staff and speculating as to who the father might be.

The employee was upset and raised a grievance and also asked to move to a different office temporarily. Her request was refused and her grievance was not dealt with. She then resigned and claimed constructive dismissal and sex discrimination.

The spreading of gossip about the identity of the child's father was held to have constituted sex discrimination and harassment. Also, the refusal to let her work at another office also amounted to sex discrimination.

Employers must ensure that they deal with inappropriate banter and gossip by not only speaking to those involved, but also taking disciplinary action where necessary. Employees must ensure that they have a clear policy of equal opportunities and harassment and that it is readily communicated to staff through appropriate training. Failure to do so may result in the employer being open for claims against them in relation to discrimination or unlawful victimisation.

Have your say

Flexible working has always caused employers a degree of difficulty.

Initially the right to request flexible working was introduced in April 2003 but was then extended to other carers in 2007. It had been planned that in April of this year, the right to request flexible working would be extended to parents of children aged 18 or under however, the government has announced that it will not introduce the change.

The government has however committed to extend the right to all employees and as such has now launched a consultation on implementing this pledge.

It is proposed that the right to request flexible working you will be extended to all employees, regardless of their caring responsibilities and it is aimed that a consultation paper will be published later this year to consider the extension.

The government are not proposing to change the requirements of being eligible to request flexible working and the existing eight business grounds on which an employer can refuse requests will also remain unchanged.

What the government does propose however is to replace the current statutory process of considering flexible working request with a simple duty on employers to consider such requests "reasonably". It is envisaged that a statutory code of practice will be introduced outlining what reasonable consideration would involve.

The consultation period ends on 8 August 2011 and if employers want to have their say, now is the time to do so.

The Department for Business Innovation Skills has launched a new consultation document entitled consultation modern workplaces and there are four key issues that are being looked at.

These include flexible parental leave which will retain 18 weeks maternity leave for mothers but will then reclassify the remaining maternity leave as "parental leave" and will mean that the leave can be shared by the mother or father or both. Again most of it will be paid however the consultation will also cover whether employers and employees that agree for parental leave to be taken in chunks or on a part-time basis.

There are three other points which are also going to be looked at which include the extending the right to request that are working to all employees, the provision for amending the working Time regulations to allow employees to carry over untaken holiday in to subsequent years if they lose the chance to take paid holiday because of sickness absence or maternity bleak parental leave.

There is also a consultation involving whether a employment tribunal has a duty to require employers to conduct a pay audit if they have been found guilty of breaching equal pay legislation. The consultation will close on all four points on 8 August 2011.

The government has recently published an independent review of the sickness absence system. It will explore the current sickness absence system and how it could be changed to help people stay in work as well as how the overall cost of the system can be reduced.

One proposal is to place an obligation on employers to take out income protection insurance rather than the payment of statutory sick pay. This would mean that insurers will become involved at an early stage and may be able to provide support to help get employees back to work.

The current Dutch system where employers have to take full responsibility for sick employees, including finding the alternative jobs if they can not get them back to working a current role, is also being considered.

Employers have the right to participate in the review, the results of which will be reported in the autumn of this year.

Super-injunctions in the Employment Tribunal?

With Ryan Giggs being the most recent celebrity to have been exposed in the super injunction scandal, and increasing public scrutiny over such injunctions, employers must be aware that there are certain criteria which they too can use to have a degree of anonymity within the employment tribunal.

In a recent ruling by the Central London Tribunal, the identity of a both parties in a case involving a top TV chef, reportedly facing a sex discrimination claim from an ex employee, the TV chef has managed to secure a restricted reporting order until the substantive merits of the case have been heard.

This means that the identity of the parties will not be made public until at least a prehearing review which is to be held in July however, the chef's representatives are likely to argue a right to a private life and so the restrictions may continue.

A Restrictive Reporting Order (RRO) cannot be granted in all cases. Usually they are only granted in those involving allegations of sexual misconduct or disability discrimination cases where there is evidence of a personal nature.

They can on some occasions also be granted outside of these areas. For example in some cases involving transsexuals where there has been no sexual misconduct but there is a claim for sex discrimination, the tribunal's have ordered RRO’s on the basis that if the claimant’s were forced to reveal their identity they could be deterred from enforcing their European law right not to suffer discrimination.

Unlike super injunctions, which have to be applied for in England ad Scotland, something which Ryan Giggs found out the hard way, an RRO will prevent the publication or broadcast in Great Britain of any matter that may identify either the person making the allegation of sexual misconduct, the person affected by the allegation and in disability cases, the claimant or any other person named in the order. Ryan Giggs failed to take out an injunction for Scotland and so it is thought that the majority of the links relating to his identity came from there.

The name of an employer can also be withheld to prevent identification of the person affected by the allegation. Any breach of an RRO is a criminal offence and is punishable by a fine on conviction of up to £5000.

The main difference with an RRO and a super injunction is that an RRO will only remain in force until liability and remedy have been determined by a tribunal. Once a judgement has been sent to the parties the RRO is lifted and the information is public knowledge.

Although not as powerful as the super junction, an RRO may be useful to protect an employers identity and position in certain circumstances.

When Personal Becomes Public

Hotmail, Yahoo, Facebook, Twitter, MySpace and many other e-mail and social networking sites are often a headache for employers. Employees are entitled to a private life but there are occasions when an employees personal email or posting, even when done outside of working hours and from home, can be actionable by the employer.

In a recent case, Gosden v Lifeline Project Ltd (LPL), Mr Gosden worked for LPL as a Prison Drug worker. He forwarded an email from home one weekend to a co worker within the prison service who in turned then forwarded it on to someone else within the Prison service. The email contained racist and sexist comments and images containing nudity.

The prison service excluded Mr Gosden from all of its prisons in Yorkshire and Humberside and LPL dismissed Mr Gosden on the grounds that he breached the companies equal opportunities policy and had damaged the company's reputation and its relationship with the prison service.

The Tribunal found the dismissal to be fair. The email was offensive and was sent to LPLs biggest clients and even though the email had been sent in Mr Gosden’s own time and from his own email, the email was a chain e-mail and so therefore, the tribunal made it clear that it was intended to be forwarded to others. Private correspondence intended for Mr Yates's eyes only, may well have attracted privacy.

Again it is yet another example as to how employers need to ensure that any e-mail and Internet policy and disciplinary policy are clear and include reference to situations where even a personal e-mail may not be so personal if it comes into the public domain and has the potential of bringing the employer into disrepute. Equally any offensive comments on social networking sites about co workers could be classed as harassment.

Worker or just getting experience?

Our previous blog Plug the Hole, in January raised the fact that employers need to be cautious with those who do work experience for them as they could fall foul of the law if they failed to pay at least the national minimum wage, not to mention the risk of HMRC looking in depth into your affairs.

With so many employers still keeping a tight grip on those purse strings, more and more employers are taking on interns. Between April to September 2010, the CIPD’s Labour Market Outlook found that 21% of employers in the UK planned to hire interns, an increase of 8% on the previous year. The big question though is “are employers really aware of the legal implications of doing this?”

In November 2009 the Employment Tribunal awarded Nicola Vetta who was engaged by London Dreams Motion Pictures Ltd, a film production company, on an expenses only basis, over £2,000 for unpaid wages, including payment of accrued holiday.

There is no official or agreed definition as to what an internship is, although it is generally thought that it means a graduate or student receiving practical experience and or training in the work environment. Previously people have used the phrase work experience but they really do mean the same thing.

If the intern or the person on work experience answers yes to the following questions, then they are likely to be regarded as a worker and are therefore entitled to the minimum wage, currently £5.93 for anyone aged 21 and above (rising to £6.08 in October):-

• Is there a requirement on them to perform work personally?
• Is there a sufficient degree of control exercised over the individual by the organisation?
• Is there an obligation on the organisation to provide work and is there an obligation on the individual to do that work?

There are then other factors which need to be considered:

1. Is the person actually doing work of benefit to the organisation? If they are genuinely shadowing someone and not actually doing the work then they are unlikely to be a worker.
2. How long is the placement? The longer the placement the more likely they are to be a worker.
3. Are they genuinely able to come and go as they please or are they required to perform a certain amount of work? The more obligations on them and requirements to complete certain amounts of work the greater the argument that they are a worker.
4. What hours are they working? The more flexible the hours the less likely they are to be a worker but if they have to work certain hours at a specific place then possibly they will be a worker.

Employers should be aware that internships are likely to be a “hot topic” in coming months, particularly as the governments recent new social mobility and child poverty strategy, Opening Doors, Breaking Barriers, has already led the government to ban informal internships in Whitehall.

Bribery Act Update

The Bribery Act will be coming into force on 1st July 2011 and after a long time waiting the government issued their guidance notes on 30th March 2011. At the same time the Serious Fraud Office and Public Prosecutions issued “joint prosecution guidance” on the act. Many Companies will be heaving with a huge sigh of relief to hear that the now customary corporate hospitality that many enjoy is unlikely to fall foul of the Act, provided it is sensible and proportionate and not found to be too lavish.

The guidance itself sets out 6 key principles which are to provide all organisations with a starting point for ensuring that their business are bribery free. The 6 principles as set out in the guidelines are:-

1. Proportionate procedures: - Make sure that any procedures to prevent bribery are proportionate to the bribery risks to that organisation.

2. Top level commitment: - Ensure that those at the top of the organisation are committed to an anti bribery stance and enforce both internally and externally.

3. Risk assessment: - Adopt a risk assessment of all procedures that is proportionate to the organisations size, structure and nature, scale and location of its activities.

4. Due diligence: - Undertake internal and external due diligence procedures which will adequately identify risks to that organisation.

5. Communication: - Make information available both internally and externally so that the organisation can effectively monitor, evaluate and review its bribery prevention procedures. This includes the requirement to train employees where necessary and proportionate.

6. Monitoring and review: - Make sure that the organisation is aware as to how they will monitor and review their anti bribery policies and procedures to ensure that even though the risks that they may face may alter over time, they remain compliant.

With such a short time left before the Bribery Act comes into force it is important that all organisations start to fully assess the risks their organisation is open to and address them at the earliest opportunity, preferably by implementing an appropriate Anti Corruption and Bribery Policy. At the very least, they should ensure that their disciplinary policy, whistle blowing policy and policy on accepting and receiving corporate hospitality and gifts are clear and up to date well ahead of July. Failure to do so may result in severe sanctions including a jail term and or an unlimited fine.

The Fox & The Hare

Under The Employment Equality (Religion or Belief) Regulations 2003.There has always been a great deal of debate about what should amount to a philosophical belief for the purposes of The Employment Equality (Religion and belief) Regulations 2003. Many have been aghast to find that avid support for their football team doesn’t count.

Over the years the Tribunals and courts have held that for a belief to be a protected philosophical belief and obtain protection under the regulations, the belief must be:

• genuinely held
• a belief and not an opinion or viewpoint based on the information currently available
• a belief as to a weighty and substantial aspect of human life and behaviour
• able to attain a certain level of cogency, seriousness, cohesion and importance
• worthy of respect ion a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights if others.

In the case of Hashman v Milton Park (Dorset) Ltd t/a Orchard Park, where Mr Hashman was represented by a Mr Hare, (sorry the closest thing to an Easter bunny we could find) which was heard in January, the Tribunal held that Mr Hashman’s fervent opposition to fox hunting and hare coursing formed part of his belief in the sanctity of life, including the lives of animals and so amounted to a protected philosophical belief under the Regulations.

Time to decide: An extra day off or not?

With the Royal Wedding fast approaching some employers have still not finalised their arrangements. Some employers will be closing through choice and giving all their employees an additional paid day off, others are closing and asking their employees to take it out of their holiday allowance and others are simply not closing at all. The confusion is bound to come up again in just over 12 month’s time when England enjoys another bank holiday to celebrate the Queen’s Diamond Jubilee on 5th June 2012. What is the right approach?

What most people, employers and employees alike, forget is that there is no free standing right to take a bank or public holiday off. Anyone working such a day would be entitled to take the time off at another point in the leave year.

There are only 8 bank holidays in England and Wales, although other holidays can be declared to mark special occasions, as is the case with the Wedding and Jubilee. The only obligation on employers is to comply with the Working Time Regulations and give all full time employees 28 days holiday.

If the wording of an employee’s contract states that they are entitled to “20 days holiday plus all other bank and public holidays”, employers may need to foot the bill of an additional day off.

If the wording simply states that they are entitled to “28 days holiday per year” or if the contract lists the 8 “normal” bank holidays, that employee will not be entitled to an additional paid day off. They can of course request to take the day off the same as any other day’s holiday.

Budget Good News for Employers

The Budget was published on 23rd March 2011, together with another document called Plan for Growth. Those two documents together detailed 7 important points for employers:-

1. The government has committed to a “one in, one out” rule for employment regulations which means that for every new regulation brought in, one will be repealed. The impact of this is likely to be significant particularly as all small businesses struggle to cope with the immense volume of employment legislation. It is thought that over 21,000 employment regulations will now be reviewed. Amalgamation may be the name of the game but it should make employment regulations more straight forward.

2. From the 1st April 2011 until 30th March 2014 all start up business and small business with fewer than 10 employees will be exempt from any new UK legislation.

3. The right to request flexible working had been due to be extended to parents of children aged under 18 with effect from 6th April 2011. This has now been scrapped and the right to request flexible working remains only open to those with children aged under 17 (18 if the child is disabled).

4. It had been planned that the right to request time off to train, which is available where employers have 250 or more employees, was to extend to all employees. This has now been scrapped.

5. Changes to the employment tribunal system are being consulted on with a view to trying to reduce the number of claims. Ideas that have been put forward so far include the introduction of issue fees and increasing the qualifying periods for bringing a claim from 1 to 2 years.

6. The government will now consult on whether the proposal under the Equality Act 2010 to bring in new legislation which would place a responsibility on employers to prevent harassment from third parties is an “unworkable requirement”.

7. Under the Equality Act 2010 the concept of dual discrimination had been proposed. This has now been scrapped.

The Final Age Count Down...Act NOW

Tomorrow is the last date on which you will be able to serve notice of retirement on an employee who will be 65 (or such age as is provided for within their contract of employment) on or before the 30th September 2011 or who has already reached retirement age.

If you want to take advantage of the current legislation before it becomes necessary to provide evidence to show that a retirement age can be justified you must make sure that those employees affected recieve their notice by tomorrow at the latest.

One other point that is worth noting is that although the last possible date that an employee given notice under the DRA can work until is the 5th April 2012, although any employee given notice will still have the opportunity to request to work past that retirement age, provided they make such a request within the requisite timeframes.

The end of the compromise agreement?

With effect from 6 April 2011, HMRC has issued new instructions which state that employers must withhold tax from payments made to an employee as if the employee is entitled to no allowances where:

 a new employee starts work without producing a P45;

 a payment which is not included in a P45 is made to an employee after they have left employment (for example, a termination payment).

 an employer starts paying an occupational pension to an existing employee in addition to their salary.

It is the second situation which may give rise to concern for employers particularly where they are entering into a compromise agreement. Watch this space for more details.

Its just the odd day off sick!!

Its Friday and Monday and Bob is off again, the third time in as many months. The day after pay day and Sue has another migraine, she’ll be back tomorrow with a new outfit.

Do you have some employees that are having too many odd days off sick? One in five employers do. If you are one of them it is important that you don’t put off dealing with it. There will always be some level of absenteeism but if you actively deal with it in a fair and consistent way you should be able to keep it to a minimum.

Don’t be one of the 28% of employers who do not have a formal sickness reporting procedure. Make sure that you have a clear and consistently applied absence management policy together with a clear idea of how you are going to tackle the issue.

Make sure that your sickness absence policy sets out a reporting structure. Ensure that employees call before a set time to notify you that they are not coming into work. Ask them what’s wrong, how long they think they will be off for and make a note on their personnel file. Make sure that all line managers know what the policy is and actively apply it. According to Personnel Today, 40% of employers cite line managers lack of effective involvement in absence management as the biggest contributing factor to poor absenteeism.

When employees do come back have a quick return to work interview, ask them to tell you the cause of their absence, write it down and ask them to sign it, that way you will always have something to refer back to if you think that their absence is becoming a problem.

If people are regularly off sick and there is a pattern to their absence you need to speak to them sooner rather than later but be sure of the issues. For example work out a percentage of time off compared to others. Speak to them in private and ask them what the problem is.

It may be that they are off on regular occasions as a result of something that you can help them with, for example unfavourable behaviour by another employee or concerns about their work or workload. If it appears that there is no acceptable explanation behind their absences then tell them that if their attendance doesn’t improve then the next step will be disciplinary action.

Government says no to £2 billion bill for pregnant woment

Employers are likely to be breathing a sigh of relief after Edward Davey, the Minister for Employment Relations confirmed that he will be lobbying against the European Parliaments proposed 20 weeks of maternity pay at full pay stating that it would impose an unacceptable estimated cost of £2billion on the government.

The main proposals under the Pregnant Workers Directive were that the minimum period of leave would be increased from the current UK minimum of 2 weeks to a proposed 14 weeks to 20 weeks, giving women full pay for the minimum 20 week period and introducing two weeks fully paid paternity leave.

The UK government were also opposed on the basis that the proposals were socially regressive as even though all women who earn over £124.88 per, the UK’s current flat rate of maternity pay (which will increase in April) would be better off under the European Parliament’s proposals, it would be of a greater benefit to those with higher earnings.

Currently those on the lowest of incomes generally receive more of their salary over the course of their maternity leave. For example, someone on £10,000 a year will receive 69% of their salary as their total maternity pay whereas those earning £60,000 would only receive 23%.

Another reason put forward for opposing the proposals, other than the huge estimated cost, is that the “rigid” model proposed would make it harder for shared parental leave, something which the government has committed to introduce.

Is your recruitment process up to date?

The Equality Act 2010 banned the common practise of employers seeking medical information about potential employees.

The medical questionnaire had become a common feature for those seeking employment. The range of information sought has frequently been extensive with detailed questions covering an applicant’s medical history.

Many disabled people are thought by the Government to be discouraged from pursuing a job application in such circumstances. It was for this reason that The Equality Act which has consolidated the law on discrimination included a section which requires employers not to ask such questions of job applicants except in very limited circumstances.

Employers who fail to take heed of this could face an investigation from The Commission for Equality and Human Rights and the service of an unlawful act notice.

Experience tends to suggest however that the commission is unlikely to concentrate its fire on small and medium sized enterprises (SME’s) certainly in the short term but will instead concentrate on the major players.

In any event it would be a mistake for SME’s to ignore this issue. The reason for that is quite simple. If medical questions are asked contrary to the prohibition and Tribunal proceedings are brought what lawyers call the burden of proof is likely to be reversed. In other words the employer will have to prove that there was no discrimination and that may not be easy. The only certainty is that it will be expensive. All employers should therefore carefully review their recruitment procedures.

Medical Questionnaires

The Equality Act 2010 banned the common practise of employers seeking medical information about potential employees.

The medical questionnaire had become a common feature for those seeking employment. The range of information sought has frequently been extensive with detailed questions covering an applicant’s medical history.

Many disabled people are thought by the Government to be discouraged from pursuing a job application in such circumstances. It was for this reason that The Equality Act which has consolidated the law on discrimination included a section which requires employers not to ask such questions of job applicants except in very limited circumstances.

Employers who fail to take heed of this could face an investigation from The Commission for Equality and Human Rights and the service of an unlawful act notice.

Experience tends to suggest however that the commission is unlikely to concentrate its fire on small and medium sized enterprises (SME’s) certainly in the short term but will instead concentrate on the major players.

In any event it would be a mistake for SME’s to ignore this issue. The reason for that is quite simple. If medical questions are asked contrary to the prohibition and Tribunal proceedings are brought what lawyers call the burden of proof is likely to be reversed. In other words the employer will have to prove that there was no discrimination and that may not be easy. The only certainty is that it will be expensive. All employers should therefore carefully review their recruitment procedures.

Can Ronaldo sue FIFA for discrimination?

Ronaldo Luiz Nazario de Lima, simply known to millions as Ronaldo and undoubtedly one of footballs greatest players retired from football earlier this week at the age of 34.

One of the main reasons that Ronaldo gave for his retirement was that he has been unable to manage his injury problems in recent years. One major factor in the number of injuries that he picked up was his weight gain, something which has on occasions been raised as a reason for underperformance.

Ronaldo was diagnosed with hypothyroidism approximately 4 years ago in 2007 and, as Ronaldo himself reported “To control it, I was told I would have to take some hormones that are not permitted in football because of antidoping”.

One of the treatments that are given to people suffering with hypothyroidism is Human Growth Hormone (HGH) which are generally considered as a banned substance in most professional sports. The question however is if a person requires treatment by way of drugs, is it right that they can be prevented from following a treatment path that is better for their health just because of the rules and regulations of an organisation or an employer.

In the UK there is some protection for employees with disabilities thanks initially to the
Disability Discrimination Act and now the Equality Act. However, for a mental or physical impairment to be consider as a disability you have to have been suffering it for a period of at least 12 months, are likely to continue suffering from it for at least a further 12 months and it must have an adverse effect on your day to activities such as mobility or concentration. If you do have a disability then you are at least protected from being treated less favourably than those who do not have a disability.

So is hypothyroidism a disability? If left untreated it can cause the sufferer to enter a coma and can cause death but that aside sufferers are also at a greater risk of having high cholesterol, heart disease and emotional depression, something which on its own can be a disability.

According to FIFA a footballer can apply for a therapeutic use exemption (TUE) although by applying there is no guarantee that a person requiring the treatment will get it. The FIFA website, which has not been updated since 3rd May 2007, states that “The granting body for this application differs according to your status as a player, be it domestic national or international.” By that can it be interpreted then that exemptions are not based on the need but the status of the player involved?

In reality there is an argument that had Ronaldo been playing in the UK and not been selected for a team on the basis that his weight and proneness to injury affected his performance, that he could have taken action against his employers on the grounds of discrimination. If a professional sportsperson were to lodge Employment Tribunal proceedings for discrimination against their employers, effectively their club, then it would be time for sports governing bodies and their policies to be challenged for being discriminatory.

More Holiday?

The Working Time Regulations 1998 as amended provide that all workers are entitled to 5.6 weeks of paid holiday. That amounts to four weeks normal holiday and a further 8 days being equivalent to 1.6 weeks for a worker who works five days per week so as to make up the total. Someone working part time on say 3 days per week would therefore be entitled to 5.6 x 3 =16.8 days holiday. The fraction of a day is rounded up to a whole day giving 17 days holiday in total. If that worker works on a Monday Tuesday and Wednesday each week then in 2010 5 bank holidays were on a Monday and those will reduce the entitlement to 12 days.

According to Regulation 13 (9) holiday or leave as the Regulation prefers to call it, can only be taken in the year in respect of which it is due. In other words it cannot be carried over to the next year and if it is not taken it is lost. You might therefore think that if someone booked his holiday at the end of a leave year but because of illness was unable to take that holiday, it would be lost where he did not return to work until the following leave year. However it is now clear that such a conclusion would be incorrect and the worker would be entitled to carry his holiday over into the next year and take it together with his new holiday entitlement for that year. This is because the European Court in a case called Pereda v Madrid Movilidad decided that The Working Time Directive required every worker to have 4 weeks holiday and if he was ill during that period then he could convert that period in to sick leave and take his holiday again later and even in the next leave year. An English Tribunal has now decided that they will follow Pereda so that being ill on holiday is no longer bad luck.

Redundancy - Whats the score?

At a time where many businesses need to make redundancies to stay afloat, employers must be aware of what makes the redundancy and the redundancy process fair.

Any redundancy situation can be stressful and deflating for the staff so the more open and consultative you are, the more at ease your employees are likely to be. Where you employ 20 or more employees if you propose making redundancies, you must allow for a 90 day consultation period.

Employers have to make sure that the whole redundancy process and selection criteria are fair and objective. Make sure that your redundancy policy and procedures are up to date and followed by all involved.

The selection criteria should be agreed with employee reps and should include things such as attendance and disciplinary records, skills or experience, standard of work performance and aptitude for work. Use a scoring matrix and apply it to those affected.

Once the employees who will be made redundant have been identified, make sure they are given the appropriate notice and allowed the opportunity to appeal the decision.

If employees ask, tell them their scores. Even other people’s scores within the selection pool can be disclosed provided of course they remain anonymous. Where you don’t tell an employee their score, you run the risk of having the redundancy found to be unfair.

Who is an employee?
A slippery pole for lap dancer.

The question over who is an employee has always been a tricky one. Generally speaking if you tell someone where to work, when to work, how to work, what they will be paid and provide them with the tools to do their job more likely than not they will be an employee.

In the case of Quashie v Stringfellows, Miss Quashie was a lap dancer who was told that she had to work a minimum of three shifts per week, told that she had to work topless and wear nothing more than a garter and G-string, told how much to charge per dance and told not to handle cash. Despite this she was not an employee.

There had been a contract, entered into with Stringfellows within which they purported that Miss Quashie was self employed and set out details as to payments that were to be made to the club in respect of attendance fees, commissions and fines. The tribunal found that on the facts of the case there was insufficient evidence that the contract was illegal and so found her not to be an employee.

Companies must use this case with extreme caution as and be aware that if they do not want someone to be a member of staff, they must ensure that there is sufficient information and detail contained within a contract for services.

Who Cares? Time off for Dependants

As the cold and flu season is well and truly underway, its important for employers to bear in mind that employees don’t have to be ill themselves to have time off. All employees, regardless of their length of service, have the right to take time off, unpaid, to deal with an emergency involving a dependant. This should not be confused with parental leave.

Who is a dependant?

An employer must be aware that a dependant doesn’t necessarily have to be a child, it can be a husband, wife, partner, anyone living in the same household as a member of the family or someone who reasonably relies on you for help in an emergency, such as an elderly neighbour living alone.

What is an emergency?

An employee will not be able to take time off to deal with a broken boiler but equally an emergency doesn’t mean that there has to be a serious or life threatening incident. It can be for example where a dependant falls ill, where a nursery or school is closed due to bad weather, or where a dependant has been suddenly injured or dies.

How long and how often can they have off?

There is no limit to the number of times an employee can take off but you can of course monitor things and so your policies should be clear and consistent. You must allow a reasonable amount of time to deal with the emergency. The time off may vary depending on what has happened, although 1-2 days would normally be sufficient but a common sense approach is always best.

Although the right to time off is unpaid, an employer should use their discretion to pay an employee particularly where employees can work flexibly from home.

The End of The Golf Day?

The Bribery Act 2010 will come into force in April 2011 and it will create four new criminal offences. The importance of this to businesses is that one of the offences will mean that individuals found to be involved in bribery can be subjected to imprisonment and an unlimited fine.

To ensure that employers don’t fall foul of the Bribery Act, they must take immediate steps to assess whether their businesses are at a high risk of being the subject of corruption or if they do business with high risk countries, such as India, China and Russia. They must also ensure that they have clear, practical and accessible policies and procedures on anti corruption.

Although large companies do generally have anti corruption policies already in place, it is estimated that approximately 95% of the world’s business is carried out by small to medium enterprises (SME’s) who do not have the same financial and human resources. It is the SME’s who are likely to need to amend, for example their disciplinary procedures and their Whistle blowing procedures to ensure that bribery and anticorruption are dealt with appropriately.

Although there is currently no set definition of bribery one area that is going to be questionable for any business is the giving and receiving of gifts and the use of hospitality.

In reality where an event such as a golf day is used as a marketing tool and representatives of a number of companies go along, it is unlikely to ever be construed as bribery. Caution must be exercised in respect of the initiation to golf from the prospective customer where you will be the only person. For that reason all employers must ensure that they have a strict policy on the acceptance of gifts and hospitality which is applied to all staff, including directors.

Plug The Hole

I was recently contacted by a horrified small businessman who had read an article in the Heating and Plumbing Monthly. The article told the story of a parent of a student plumber approaching a business and asking if they would allow him to do some unpaid work when he was not at college so he could gain some experience. The business was not in need of additional staff but he would not need paying so what harm could it do? It was arranged that he would do a couple of days per week. At the end of the college course the lad requested an apprenticeship but the firm had no need of an apprentice and the lad left amicably. What a happy story. Unfortunately HM Revenue and Customs then visited and wanted to know why he was not paid the minimum wage. The result was a large bill and an additional 50% penalty for the breach of the Regulations.

Many businesses are asked each year to take people for work experience. It is encouraged by government and schools alike. However if any work is done rather than mere spectating and as is normal some hours are set aside for this, then it becomes likely that the student will satisfy the legal definition of a worker so that certain statutory rights will apply including of course the right to be paid the minimum wage. Rights relating to the protection of wages, the right to be accompanied at a greivance and disciplinary meeting, the right to holidays and other working time requirements could all become relevant.

If therefore the arrangement is work shadowing there is no problem. Once you start asking them to do things which could be considered as work such as perhaps making the tea then beware.