The White Stuff

To the joy of school children everywhere, this week we have seen the worst snow fall for 18 years, and predictably, the whole country promptly ground to a halt. According to news reports, the snow has cost the British economy some £3 billion, but how they come up with these figures is anyone’s guess.

It may be that when you stamped the snow of your shoes and walked into the office on Monday morning, you found that many of your staff had voted with their feet and stayed at home. If so, the reasons are likely to be either that public transport had collapsed under the strain, or that the schools had thrown an impromptu holiday for children by staying firmly closed, resulting in parents having to stay at home to look after their offspring at short notice.

This begs the question Should we pay our employees even though they were absent from work due to the snow? The short answer is Not unless you want to. Employees absent from work because public transport fails them cannot perform their normal duties due to what insurers quaintly call an Act of God. If they cannot get in to do the job, then they cannot perform their role and therefore have no right as such to be paid for that day’s absence.

Employees do have the statutory right to take time off to deal with emergencies with dependents, such as when the school closes without notice due to a dusting of snow. This time off is not prescribed, but will normally be sufficient time for the employee to arrange suitable alternative cover. However the point is that this right is to unpaid time off, and if little Tarquin and Clarissa are unleashed into the care of their doting parents this week, those employees can’t expect to be paid for the privilege of spending quality time with their offspring.

Particularly in these difficult economic times, many employers will have no option but to inform affected staff that they will not be paid for their time off this week. Employers can alternatively let their employees take the day as part of their annual holiday leave entitlement. Some employees will announce that they were in fact ‘working from home’, but employers may want evidence that that was in fact the case. Employers can opt to be generous, and just pay staff as normal even if they could not make it in. That might send a mixed signal though to those members of staff who did struggle in through snow drifts and icy roads.

James Carmody
RECULVER SOLICITORS

Tel: 0207 324 6271 Fax: 0207 477 2276 info@reculversolicitors.co.uk
12-16 Clerkenwell Road, London EC1M 5PQ*
www.reculversolicitors.co.uk www.compromise-agreement.net

Regulated by the Solicitors Regulation Authority Principal: James Carmody Consultant: Carol Aylott * Serviced Office. Meetings by Appointment Only

Changes on the 1st February 2009

Hello and welcome to this week’s employment law news from Reculver Solicitors.

Don’t forget the following changes coming into effect from the 1st February 2009:

· A ‘weeks pay’ for the purposes of calculating statutory redundancy payments is going up from £330 to £350 for employees being made redundant whose last date of employment is on or after the 1st February 2009. The BERR Ready Reckoner for calculating statutory redundancy payments is very helpful and can be seen by clicking on this link: Ready Reckoner

· The maximum statutory redundancy payment will therefore go up from £9,900 to £10,500. Don’t forget of course that if an employee is made redundant, in addition to the statutory redundancy payment, s/he is also entitled to contractual or statutory notice (whichever is greater) or payment in lieu.

· In claims of unfair dismissal, the maximum Compensatory Payment for people dismissed after the 1st February 2009 is going up from £63,000 to £66,200. This Compensation Payment is an award made by the Employment Tribunal in unfair dismissal claims to compensate for loss of earnings, pension etc from the date of dismissal until the date that the employee finds suitable alternative employment. Don’t forget that employees who win unfair dismissal claims are also entitled to a ‘Basic Award’, which is equivalent to the statutory redundancy payment. The vast majority of claimants will not receive compensatory awards even approaching the new statutory cap of £66,200, but higher earners may well find the statutory cap is still inadequate to compensate them for their losses.

· Don’t forget that the National Minimum Wage for adults already went up to £5.73 per hour from the 1st October 2008.

Do let us know if you would like any further information on these issues.

James Carmody
RECULVER SOLICITORS

Tel: 0207 324 6271 Fax: 0207 477 2276 info@reculversolicitors.co.uk
12-16 Clerkenwell Road, London EC1M 5PQ*
www.reculversolicitors.co.uk www.compromise-agreement.net

Regulated by the Solicitors Regulation Authority Principal: James Carmody Consultant: Carol Aylott * Serviced Office. Meetings by Appointment Only

Sick of Holidays?

Hello and welcome to this week’s employment law news from Reculver Solicitors.

The Courts have for some time grappled with the vexed question of whether employees on long term sick leave continue to accrue the right to paid holiday under the Working Time Regulations. Understandably, employers would rather it didn’t as don’t fancy being hit in the pocket when the employee is not even there in the first place.

This issue eventually ascended to the giddy heights of the European Court of Justice which has issued its decision this week in Stringer v HMRC (previously Ainsworth v HMRC). The ECJ has ruled that:

- A worker who is on sick-leave for the whole of an annual leave year is entitled to a period of four weeks' paid annual leave, despite the fact they are not actually at work. In other words the right to paid holiday accrues even for employees on long term sick leave.

- The national courts will have to decide whether the paid leave can be taken during that particular holiday year, or whether it should be carried over to the next holiday year. It appears this issue will go back to the UK courts for consideration. However the right to paid holiday is not forfeit if the holiday is not taken during that particular holiday year and will have to be paid one way or another.

This decision is hardly going to be welcomed with open arms by employers with any staff on long term sick leave, and may prompt a slew of new claims from those in the know. How many savvy employees will find out about the decision remains to be seen though.

James Carmody
RECULVER SOLICITORS

Tel: 0207 324 6271 Fax: 0207 477 2276 info@reculversolicitors.co.uk
12-16 Clerkenwell Road, London EC1M 5PQ*
www.reculversolicitors.co.uk www.compromise-agreement.net

Regulated by the Solicitors Regulation Authority Principal: James Carmody Consultant: Carol Aylott * Serviced Office. Meetings by Appointment Only

Coming of Age | Foot in Mouth Disease

Hello and welcome to this week’s employment law news from Reculver Solicitors.

Coming of Age
Whilst many of us are only too keen to retire at the age of 65 or earlier, others would like to work beyond that age and see no reason why they should be retired.

In Seldon v Clarkson Wright & James, partners in a legal practice had to resign aged 65. Partner Mr Seldon thought this was discriminatory on the grounds of age. The Employment Tribunal however found that although this was discriminatory, it was justified. The Employment Appeals Tribunal took the view that the assumption that performance tails off at around this age was not supported by any evidence and involved stereotyping.

It is worth remember that the Age Discrimination Regulations do still set the automatic retirement age at 65. Also, do remember that employees have the statutory right to ask to work beyond their normal retirement date and employers must notify employees of this no more than one year and no less than six months before retirement is due to take place. Employers have to consider the request but are by no means obliged to agree.

Foot in Mouth Disease:
This week sees Princes Harry and Charles demonstrating a questionable approach to race relations in their choice of nicknames. In the recent case of English v Thomas Sanderson Ltd the Court of Appeal held that the Sexual Orientation Regulations 2003 do in fact protect a heterosexual man who is repeatedly tormented by homophobic banter (including names such as “faggot”) when (a) he is not gay, (b) he is not perceived or assumed to be gay by his tormentors, and (c) he accepts that they do not believe him to be gay. The banter arose purely because he had attended a boarding school and lived in Brighton. The two princes might be well advised to take a look at this decision.

With thanks to barrister Daniel Barnett for news of these decisions.

James Carmody
RECULVER SOLICITORS

Tel: 0207 324 6271 Fax: 0207 477 2276 info@reculversolicitors.co.uk
12-16 Clerkenwell Road, London EC1M 5PQ*
www.reculversolicitors.co.uk www.compromise-agreement.net