Can you reduce your employees holidays?

It was reported by the BBC on the 16th May 2013 that Paolo Di Canio had “threatened to reduce his players holidays should they not perform “with dignity” in their final game”.


Effectively Mr Di Canio was saying that rather than allowing his players the usual five to six weeks, he would reduce their holiday to the minimum 4 weeks.

In the UK, the Working Time Regulations 1998 allows workers the right to take 5.6 weeks paid holiday in each leave year, which is inclusive of bank holidays.

On that basis it would be difficult to see how Mr Di Canio could reduce his players’ holiday to just four weeks, as he would be in breach of the Working Time Regulations 1998.

What employers must be aware of however is that an employer’s right to holidays should be fully detailed in their contract of employment, particularly if it is the employers’ intention to allow them more than the minimum 5.6 weeks.

If more than 5.6 weeks holiday is being given then any reduction in holiday would result in the employee being able to make a claim either in the County Court or the Employment Tribunal. It is also possible that because it would be such a significant breach of contract that employers could also face a claim for constructive dismissal.

In any event employers should make sure that they have adequate policies and procedures in place detailing how applications for holidays should be made, in what circumstances holiday requests may be refused and clear details as to whether holiday can be carried over to the following leave year. If all holiday is not used, employers should not make payments to employees in lieu of holiday that has not been taken.

Compulsory Retirement?

Last week our blog looked at the general points that employers should consider when the question of retirement arises. One important question is whether a compulsory retirement age should be included in any policy.


Until the 6th April 2011 there was, what was known as the “default retirement age” of 65, which meant that compulsory retirement of employees at or over 65 was permitted. Now however compulsory retirement age must be objectively justified.

This means that it is not impossible to still retire employees at 65, provided that 65 is an appropriate age.

There is a general assumption that if performance declines with age, whether that be due to competence or health, however those points on their own are not sufficient to justify a retirement age. There have certainly been a number of people who have been able to hold down high profile well after this age. For example look at Sir Alex Fergusson managing a successful Premier League side until the age of 71, when some would argue that due to the stress involve in that type of work, a retirement age of 65 would be justified.

The big question is what can justify a retirement age and this is something that has been looked into by the Courts in great depth.

In particular the case of Seldon v. Clarkson, Wright and Jakes found that there had to be proportionate and legitimate aims in setting a retirement age.

Seldon was the former partner in a solicitors firm who imposed a retirement age of 65 on their partners. The firm put forward 6 legitimate aims which included;

1 Ensuring associates were given the opportunity of partnership after a reasonable period as an associate, thereby ensuring that associates do not leave the firm;

2 Facilitating the planning of the partnership and workforce across individual departments by having a realistic long term expectation as to when vacancies will arise;

3 Limiting the need to expel partners by way of performance management, this contributing to a congenial and supportive culture in the Respondent firm.

Perhaps unhelpfully, even tough this matter has gone all the way to the Supreme Court, there was no decision as to whether 65 was in fact the correct age. The implication of the case however is that provided there are legitimate aims that can be justified and supported by the employer then a retirement age will be capable of being enforced.

Overall employers should still treat compulsory retirement with caution and should instead try to adopt a much more flexible approach to retirement without any need to set ages.

Any issues with work carried out could be dealt with through the capability policy and procedures and illness and general health issues could be dealt with through an appropriate sickness absence policy, both of which all employers should have in place.

Are you ready for your Sir Alex, Paul Scholes or David Beckham moment?

In the last week there have been three very notable announcements of retirement. Sir Alex Ferguson and Paul Scholes will both retire from Manchester United and football in general on the 19th May 2013 after Manchester United have played West Brom. David Beckham has recently announced that he too will be retiring from professional football at the end of this season.

It is inevitable that an employer will have people retire, but the difficult part is making sure that there are proper procedures in place to deal with retirement.

There are many things that employers need to be aware of regarding retirement. Generally when employers are considering what points to include in their retirement policy and procedure, they should think about the need to include a compulsory retirement age, the way in which any discussions regarding employees plans for the future will be conducted to ensure that there can be no allegation of discrimination for example on the grounds of sex or age, and indeed, the notice provisions that will be required.

Requiring an employee to give as much notice as reasonably possible is crucial and would allow for appropriate planning. Certainly with any manager or senior employee such as Sir Alex Ferguson, the steps needed to ensure that a replacement is found need to be taken swiftly to ensure that the right candidate is recruited and also to allow for a proper handover where necessary.

If a retirement age were going to be imposed then employers must make sure that the retirement age is capable of being objectively justified, something we look at in more detail another time.

For the time being however it is simply sufficient to say that appropriate planning and discussions with staff should be at the forefront of all employers minds to ensure that they are not “left in the lurch” when employees do decide to retire.

Can we really let employees bite??

If your employee bit someone whilst they were representing you, what would you do? Most employers would probably see it as an act of gross misconduct, suspend the employee, investigate the allegations, hold the disciplinary and then dismiss the employee for gross misconduct.

Luis Suarez has received a 10 match ban from the FA which he will not be appealing but the reality isn’t necessarily whether the ban itself is right, some may say that it is too harsh in light of other bans given but the big question is what are his employers going to do about it.

Luis Suarez is an employee of Liverpool Football Club. An employer of any size or stature would be ill advised not to have an adequately worded disciplinary policy and procedure in place which clearly sets out not only what procedure would be followed but also what constitutes misconduct, the level of misconduct and what sanction could be expected for each level of misconduct. For example turning up late on a couple of occasions is likely to warrant a verbal warning whereas causing physical harm to another, especially if you are in an employer’s uniform, would constitute gross misconduct and warrant a dismissal.

As a basic guide, employers should investigate allegations made, including holding an investigatory meeting, decide if disciplinary action is required and if so invite the employee to a disciplinary meeting, making sure that all of the evidence is supplied to them prior to the meeting. Allow the employee to put their case forward at the disciplinary and then decide if a sanction should be imposed. Once the sanction is imposed the employee should then have the opportunity to appeal it.

Employers have to make sure that the disciplinary policy is applied consistently and fairly across the entire organization and simply allowing one employee off could lead to numerous problems if faced with similar situations further down the line.

It would be interesting to see how Liverpool Football Club would deal with a biting shop assistant after seeing that Luis Suarez has not been dismissed for gross misconduct.

Changes to sickness

The 2011 “Health at Work; an independent review of sickness absence” report made a number of recommendations about how to minimize loss of work due to ill health.

The report included the following recommendations;

• Establish a new independent assessment service which would provide expert advice on whether an employee could return to work and if so how they could be supported by an employer after they had been absent for 4 weeks.

• Revise “Fit Notes” so that an individual’s capacity to return not only to their own job but to work more generally could be considered.

On the 17th January 2013 the Government published its response and largely accepted the report’s recommendations.

As of 2014 a Health and Work Assessment and Advisory Service will be introduced which will provide;

(a) A state funded assessment by occupational health professionals for employees who are off sick for 4 weeks or more;

(b) Employers and employees with advice on overcoming the barriers that prevent employees from returning to work;

(c) Case management for employees with complex needs who require ongoing support to facilitate their return to work;

(d) “Sign Posting to Appropriate Interventions” including universal job match (a free online job matching service launched in November 2012) for those employed and able to return to work but unable to return to their current job.

The Government also confirmed that revised sick note guidance would be published and that statutory sick pay record keeping obligations are to be abolished although currently there is no date regarding this.

All Change

The Tribunal rules and the way in which compensation are calculated are both to be changed. The main changes are set out below.

Compensation

All employers are very aware that any claim for unfair dismissal could cost them significantly. Currently the basic award, which is calculated on the same basis as a statutory redundancy payment is capped at £13,500.

The compensatory award is an amount which the Tribunal considers to be “just and equitable” and is subject to a statutory cap of £74,200. Employers must be ever mindful that in some cases, there is no cap at all.

The Government believe that the current cap has contributed to unrealistic perceptions about the likely level of Tribunal awards and in the Enterprise and Regulatory Reform Bill it has been proposed that the overall cap will continue to apply as well as a new individual cap. This will mean that where an employee’s earnings and award are less than the £74,200, they will be capped at only being able to be compensated for a maximum of 12 months pay.

This change is expected to be brought into force in the summer at around the same time as the proposed changes to the Tribunal rules.

Tribunal Rules

As of 6th April 2012 new employees do not acquire the right to claim unfair dismissal or redundancy for 2 years from joining unless their dismissal is automatically unfair. In addition the Employment Tribunal rules themselves are due to be changed in the summer to try to make them more understandable by unrepresented parties.

The most significant of the proposed changes are that the Tribunal will become fee paying. Anyone wishing to make a claim in the Tribunal will need to pay an issue fee as in the County Courts. The level of fees is going to depend upon the nature of the claim and it is anticipate that the fee, payable by the Claimant, will be between £160 - £250 In addition there will also then be a hearing fee of between £230 - £950.

Employers will also be hit financially where claims are made and are successful, they will be subjected to a penalty imposed by the Tribunal which will be payable to the exchequer and will be in addition to any awards made to the Claimant.

The penalties will have a minimum threshold of £100 and a maximum ceiling of £5,000 although a 50% reduction will apply if that penalty is paid within 21 days. The Tribunal will continue to have discretion as to whether they are in a position to waive the penalty where there are cases of inadvertent error.

There will also be additional costs for employers to consider. Employers will need to make payment of £160 if they wish to issue a counter claim, £600 if they require judicial mediation, £160 if they want to set aside default Judgment and a further £60 if they wish to dismiss a claim following settlement.

Employers will need to bear the new charges in mind particularly when looking at any negotiated settlement and also when considering the likely risk at a Tribunal. Tribunals themselves are likely to make heavy use of their discretionary power to order the losing party to reimburse any fees paid so although the rules are going to be simplified, you should never under value the benefit of good legal representation.

Too much for ACAS?

Two specific proposed changes will mean a great deal of extra involvement for ACAS but will an overstretched organisation be able to cope and will the plans really mean a better process? We have set out the key principles of these proposals below.

Pre-termination Negotiation

Last year the Government mooted a proposal for what was going to be called “Compensated no – fault dismissals”, aimed at encouraging early settlement. The concept was binned but the Enterprise and Regulatory Reform Bill (the Bill) contains details of the idea where Tribunals will not be able to consider one “Pre-termination negotiation” when considering the fairness of a dismissal.

This means that employers could sit down with an employee who they are looking to dismiss, raise a performance or capability issue and include within that discussion a proposal to end their employment on negotiated terms. This conversation would then be protected and would not be able to be used as evidence that a subsequent dismissal was predetermined, regardless of procedural obligations in any later unfair dismissal proceedings.

The reality of this proposal is that employers who are looking to resolve a difficult situation are likely to be able to have a bit more of a frank discussion with their employee however, employers must still tread with some caution particularly as the way that the Bill is currently drafted would mean that the details of the proposal to end employment and the terms negotiated are only inadmissible in ordinary unfair dismissal proceedings. The fact and content of the offer or discussion may be referred to in relation to other claims such as automatic unfair dismissal, breach of contract or discrimination.

Employers must also be aware that they must not place “undue pressure” on the employee and that they will not receive any protection where it is considered that the employer’s behavior has been “improper”. The difficulty with the way in which it is currently worded is that there is no definitive explanation of what improper behaviour would be although it is going to be defined in a further ACAS publication although further consultation is currently still underway in this regard. Employers should be aware however that the expected change is due to come in to force in the summer.

Greater ACAS involvement pre issue?

The Government intends to introduce a requirement for most types of potential Tribunal claims to be lodged initially with ACAS who will then offer the parties an opportunity to engage in early conciliation with a view to relieving some of the claims going to the Employment Tribunal.

There will be no obligation to actually accept the offer of early conciliation and the requirement is merely to contact ACAS rather than to actually partake in pre-claim conciliation.

In January 2013 the Government issued its consultation on how the process would operate in practice and it closed on the 15th February. Under the proposed two stage process, the way that it would work is that there would be an early conciliation support officer who would make “reasonable efforts” to contact a Claimant, obtain basic information and outline the conciliation process. ACAS would then issue a certificate confirming the Claimant complied with their duty to contact ACAS even if they did not wish to participate in conciliation. The claim would then be able to be presented to the Tribunal.

If the proposed Claimant did wish to participate in early conciliation then the matter would be passed to a conciliator who would contact both the parties. If it was the employer who did not wish to participate then the compliance certificate would immediately be issued and a claim lodged at Tribunal.

If the employer did agree to conciliation then there would be a period of up to 1 month to facilitate a settlement. It is not clear what would happen in the event that a Claimant lodged tribunal proceedings immediately perhaps due to the approaching expiry of a time limit.

Despite ACAS being asked to write definitions and become more active, there will be no additional funding. As anyone with previous experience of ACAS knows, they are already overstretched and so it is impossible to see how they will deal with further increases in workload.

No need to share quite so early but beware of redundancy change

The Department for Business Innovation and Skills had originally announced a number of employment law changes which were due to come into force in April. With just a few weeks left however they have announced that some dates will now be set back.

We blogged last week about the new employment status of Employee Shareholder which had been due to start in April 2013. This is no longer going to happen and instead has been pushed back to the autumn, most likely October.

To proposed new time table is:

Spring 2013

Change to collective redundancy

Consolidation of National Minimum Wage Regulations

Summer 2013

Settlement Agreements to be made easier

12 months' pay cap on unfair dismissal compensatory awards

Revised Employment Tribunal Rules
New Tribunal fees
Whistleblowing improvements
Portable DBS (previously CRB) checks

Autumn 2013
New employee shareholder employment status
TUPE regulation reforms

Changes to Redundancy from April

From the 6th April 2013 if employers are making a number of redundancies they should be aware of the new consultation periods.

If it is envisaged that 100 or more employees are going to be made redundant within a 19 day period a minimum period of consultation of 45 days (as opposed to 90 days) will be required. The existing 30 day minimum period where at least 20 but fewer than 100 employees will be made redundant will remain.

Employers must note however that the current 90 day maximum award for a “protected award” where the employer fails to comply with its duty to consult will not be reduced.

A non statutory code of practice will also be issued which is likely to establish guidance on the meaning of the word “Establishment” which has caused a great deal of claims in the Employment Tribunal.

With an ever increasing number of large high street names making large redundancies or closing, employers should keep an eye out for the outcome of the Employment Appeal Tribunals guidance in relation to the collapse of Woolworths and whether an individual store amounted to a separate establishment.

Redundancies appear to be an ongoing issue. Very often employers are aware that redundancies can be an expensive but necessary option to avoid closure. Employers must make sure that they get it right or additional costs and the possible loss of a business is inevitable.

Will you share with your employees?

From April all employers will have the opportunity to share their profits with their employees via the Employee Shareholders Scheme. The intention of the scheme is to encourage small and medium sized to take on staff. Under the scheme employee shareholders will become a new employment status and will mean that in exchange for shares in the company, employees will give up certain legal rights.

Employees will give up the right to make a claim for unfair dismissal, statutory redundancy pay, the right to request flexible working and also the statutory request in relation to study or training. In addition they will need to give 16 weeks notice to return early from additional maternity leave where at the moment it was currently at 8 weeks.

Employees must be given at least £2,000 in shares and the benefits to the employee are that the shares will be exempt from capital gains tax up to a maximum threshold of £50,000.

For employers, it may be an attractive option as two of the most significant employment rights, namely the right to claim unfair dismissal and statutory redundancy payments are being signed away. Automatic unfair dismissals such as being dismissed on the grounds of discrimination or whistle blowing will remain protected.

The big question however is how many employers are prepared to share their profits with their employees and how many employees will actually be advised to give up their employment rights. It is unlikely that the Employee Shareholders Scheme will be attractive to many small employers. Employees who think that they may have a say in the running of the company should be cautious of employers creating shares without a vote. Overall it looks as though this is going to be an unattractive proposition to employers and employees alike.

A Year in employment

It’s been a while since our blogs have been done, in no small part due to maternity leave, so here is a brief summary of the main things that have come up over the last year.

January 2012

Up to £67 million awarded to ex Woolworths staff where administrators failed to comply with their duty to collectively consult. The Tribunal did however treat each Woolworths shop as a separate “establishment” meaning that employees in smaller shops missed out on compensation. Employers should be aware that consultation duties are due to change in 2013. Watch this space for our blog on this issue.

February 2012

Compensation limits rose to a maximum of £12,900 for a basic award and £72,300 for a compensatory award.

Think £85,200 is a lot to lose? The limits went up again in February 2013 and are now £13,500 for the basic award and £74,200 for the compensatory award.

If employers can’t afford to pay out £87k+ in damages they need to make sure that their policies and procedures are accurate and followed appropriately.

April 2012

Anyone employed from 6th April will now have to be employed for 2 years before they are able to bring a claim for ordinary unfair dismissal. Anyone employed before 6th April 2012 will continue to only require 1 year’s service.

Claims where the dismissal is on the grounds of discrimination will continue to have no minimum service required.

May 2012

The Enterprise and Regulatory Reform Bill received its first reading in the House of Commons on 23rd May. The Bill proposed a number of procedural reforms, changes to compensation.

There have been a number of developments in relation to this so watch this space for more updates and blogs specifically relating to the Bill.

June 2012

The Equality and Human Rights Commission (EHRC) published its report “A Perfect Partnership” which reported that disabled people were still put at a disadvantage in the workplace and that employers were confused by what disability means, who is disabled and what support disabled workers might need.

Recommendations within the report were that employers should try to anticipate what adjustments and support may be needed from the outset of employment by manager led discussions and issuing a questionnaire for new starters. I

t also recommended that flexible working should be offered as an option for disabled workers and applicants.

Any employer choosing to use a questionnaire should ensure that the questionnaire does not discriminate against the disabled employee or they may face a substantial claim in the Tribunal.

July 2012

Royal Mail worker Abdul Musa, who was supported by the EHRC, was awarded an undisclosed amount of compensation after successfully showing that he had been dismissed for blowing the whistle on racist behavior.

Employers must ensure that they investigate any complaints made by employees in a timely fashion and must ensure that their Equality policies are up to date and adhered to. The costs of not could be significant.

October 2012

Employers must automatically enroll certain workers into a pension scheme and must pay a minimum level of contributions.

Lap dancing employees?

To qualify to bring a claim against your Employer in the Employment Tribunal, you must, amongst other factors, be an “employee” of the Company, employed under a “Contract of Employment”.

Many employers have made strenuous attempts to try and limit their risk to Employment Tribunal claims by hiring people on, what they say is, a “self-employed” basis, which is normally done by having them enter into complex agreements, which actually have very little resemblance to how the relationship works in practice. Such people are told they have to agree to pay their own tax and national insurance and go without paid holidays. People looking for work often have very little choice but to accept the agreement presented to them.

However, Tribunals are well aware of this power imbalance and take it into account when considering what the correct legal relationship is and establishing whether a person has “employee status”.


However, in an unusual recent case involving a lap dancer at Stringfellows restaurants, there were various documents including the Club Agreement, House Rules, Booklet, license and the Rota. She was described in these as self employed and believed initially that was the case. She only worked on certain nights of the week and danced in accordance with the Rota. However, she was not paid directly by Stringfellows, and instead received vouchers direct from customers, which she then exchanged for cash, having taken into account certain expenses (dress repairs/makeup etc).



After being dismissed from her role, she brought a claim against Stringfellows in the Employment Tribunal, on the basis that she did qualify as an employee. The Employment Appeal Tribunal decided that once there was a contract for paid work, the only issue was whether there was the degree of control necessary to make it into a "contract of employment".



This case once again emphasises the importance of 'control' in determining in many instances what the correct legal position is and whether "employee status" can be established.

If you have control over what, when and how often you work, then you are probably self employed, but if you cannot make these decisions, then there is a substantial likelihood that you are in fact an employee whatever the paperwork says.

New Year - New Changes!

The Law is forever changing in Employment, so here are a few of the key changes Employees and Employers should watch out for this year…

The Awards for Unfair Dismissal Claims are due to rise!

The maximum awards for Unfair Dismissal claims are due to rise in February. As mentioned in our last Blog, this is due to the maximum weekly pay rising from £400 to £430, which in turn means the maximum Basic Award will rise from £12,000 to £12,900 and the maximum Compensatory Award from £68,400 to £72,300.

The rise in Tribunal Awards means Employers should be all the more careful to ensure that they follow the correct Disciplinary and Dismissal Procedures, so as to avoid Employees being able to bring a successful claim in the Tribunal.

Note: The increase in weekly pay will also affect the maximum claim for Redundancy, which will also now rise from £12,000 to £12,900.

The Right to Claim Unfair Dismissal – Good for Employers, bad for Employees

The minimum length of time that an Employee must have worked for their Employer in order to qualify to make a claim for Unfair Dismissal is due to rise in April from one year’s continuous service to two years. Therefore, although the Awards for Claims are rising, the number of claims being made is likely to fall.

Increase in Rates

Also in April, the weekly rates of Statutory Maternity, Paternity and Adoption Leave Pay are due to rise from £128.73 to £135.45. The rate of Statutory Sick Pay will also rise from £81.60 to £85.85.

More Scope for Parents

As from April, parents will now be entitled to take a period of up to four months unpaid Parental Leave, instead of only three months.

Employees should however always refer to their individual Contracts of Employment to see what restrictions or conditions, if any, have been put in place with regards to when and how often the unpaid leave can be taken.

Big Businesses, Big Pensions

As from October, businesses with more than 120,000 employees should ensure their employees are ‘automatically enrolled’ into a pension scheme. It is believed that the ‘automatic-enrollment’ will gradually be introduced to businesses with fewer employees over time.

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.