Employment Law News from Reculver Solicitors. Oh the weather outside is frightful ...

 

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

      

Oh the weather outside is frightful:

It sometimes seems that as soon as the first snowflake falls, half the schools in the country take the opportunity close at a moments notice, leaving many working parents wondering what to do with their delighted children.

 

Under the Employment Rights Act 1996 (s57A) all employees are entitled to a reasonable amount of unpaid time off work to deal with emergencies involving a dependant and not to be dismissed or victimised for doing so. In the case of unexpected school closures, this statutory right is really only for enough time to put alternative child care arrangements in place, and will not generally be an excuse for the employee to remain at home for the rest of the week. ‘Reasonable’ time off will always depend on the particular circumstances. Some employers will agree to staff taking that time from their holiday entitlement, and some may exercise their discretion to pay it anyway, however the statutory entitlement is to unpaid leave only.

 

Competition: Thanks to all those who took part in our competition last week. A name has been drawn and one reader JP (you know who you are!) will be receiving a bottle of champagne later this week.

      

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

     

Regulated by the Solicitors Regulation Authority: Firm 405070 | Principal: James Carmody | Consultant: Carol Aylott |  * Serviced Office. Meetings by Appointment Only

 

 

 

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Royal Nuptials - The 29 April Bank Holiday

Whilst we all wait for our personal invitation from Will and Kate, and decide which hat to wear, it is worth sparing a thought on the effect of the extra bank holiday on the 29^th April next year will have on the British workplace.

In general, there is no obligation to pay for employees to enjoy an extra day off at home, but it is worth taking a close look at your employment contracts first:

·         If your employment contract states that staff are entitled to 20 days plus bank holidays as paid leave, then you’re basically stuck with paying staff for the extra bank holiday whether you like it or not.

·         If your contract states that staff are entitled to 28 days paid annual leave including bank holidays, then you have a choice. You might for example inform staff that it they take the bank holiday, it comes out of the normal leave entitlement.

·         If your contract states that staff entitlement is 20 days plus 8 bank holidays, then again you have a choice.

Most probably though, staff will be unimpressed by any attempt to deny them the extra paid day off and many employers will opt to give the extra bank holiday as paid leave regardless of what the contract says. In case you think this is a one-off though, think again. An extra bank holiday is scheduled for the 5^th June 2012 for the Queens Jubilee celebrations. Time to dig out the bunting then!

Win a bottle of champagne! Recommend our email news to a colleague or associate and copy me in. You name will be put in a hat and the winner will be announced next Monday.

      

James Carmody

RECULVER SOLICITORS     

Serial Litigants

It is unfortunately the case that some people out there get it into their heads that a way of making easy money is to bring multiple claims against a series of employers on spurious grounds related to job applications. Such people reason on the basis that most employers would rather pay off such claims rather than taking them through to the Tribunal.

Back in 2008 a certain Mr Berry brought an age discrimination claim against one of our clients, a small recruitment consultancy. At the time we were keen to investigate whether this person was a vexatious litigant and pursue him accordingly. However in the event our client opted to settle the claim for a modest £150 to save the hassle and cost of defending it in the Tribunal.

However things seem to have caught up with Mr Berry and in Berry v Recruitment Revolution last week, the EAT has reiterated that claimants who bring discrimination claims in respect of allegedly discriminatory job advertisements in which they have no genuine interest, purely in the hope of being paid to settle their claims, are liable to face an order for costs. Whilst Recruitment Revolution may have obtained a costs order against Mr Berry, it remains to be seen how easy or otherwise it is for them to extract that money from him.

It may well be a different matter if the person had a genuine interest in applying for the job, but only failed to apply because of (say) a discriminatory age or unreasonable minimum experience requirement. However if it appears to you that the applicant now bringing a tribunal claim never could have applied for the role, or had no intention of doing so, you may well smell a rat and want to investigate further whether claimant is indeed a frivolous or vexatious claimant.

      

James Carmody

RECULVER SOLICITORS     

Redundancy Consultation

For redundancies of one or two employees, there is no minimum period of consultation before the redundancy can go ahead and redundancy consultation can sometimes be carried out in as little as a week. However if between 20 and 99 employees are being made redundant from a particular establishment within a 90 day period, then there is an obligation to carry out consultation for at least 30 days, and to liaise with staff representatives. However some employers will scratch their heads about when the obligation to consult arises.

In United States of America v Nolan, CA November 2010, the questions was whether in a collective redundancy situation, the consultation obligation arises (i) when the employer is proposing, but has not yet made, a strategic business or operational decision that will foreseeably or inevitably lead to collective redundancies; or (ii) only when that decision has actually been made and he is then proposing consequential redundancies?

As the case turned on the Collective Redundancies Directive, and as the law on that was not clear, the Court of appeal referred the question to the CJEC (Court of Justice of the European Communities to you and me). It is unfortunate, in these times of economic uncertainty, that employers don’t have more clarity about such basic questions. Existing case law suggests that the obligation to consult arises when there is the formation of a clear, albeit provisional, intention. The prudent approach in the meantime would be to start consulting sooner rather than later.

With thanks to Emplaw for news of this decision.

       

James Carmody

RECULVER SOLICITORS     

Redundancy Selection. Iny Miny Miney Mo.

In order for a redundancy procedure to be fair, it is essential that a fair procedure be followed. That will include a) selecting a pool of candidates from whom redundancies will be selected, b) consulting with those people, and c) applying clear criteria for selecting the people to be made redundant, which ideally should be objectively verifiable.

    

In the recent case of County Print v Page EAT 2010  it was held that employers should gives employees adequate information on which the employee can respond and argue his or her case. That includes the criteria relied upon to select for redundancy. In this case, one of the criteria relied upon was ‘flexibility’ (a notoriously slippery concept). Mr Page asked to see the scores for himself and the others at risk. The company refused to explain how the scoring matrix had been applied, and in particular the basis of scoring on ‘flexibility’.

   

The Tribunal found the dismissal was unfair, and this was upheld by the EAT. Before adopting a redundancy scoring matrix, employers would be wise to consult carefully with employees on the matrix first, and ensure that the employees fully understand how those criteria will be applied in practice. Pulling a score out of the air without something to back it up may well leave the employer in trouble.

 

With thanks to barrister Daniel Barnett for news of this decision.

      

James Carmody

RECULVER SOLICITORS     

Compensation in Unfair Dismissal Claims

Even if a dismissed employee has a good claim of unfair dismissal, any award may be reduced by the Tribunal if he or she has taken insufficient steps to find suitable alternative employment.

 

In the recent case of Kelly v University of Southampton [2010] in the EAT, Ms Kelly was dismissed because her work permit to work in the UK had expired. On the facts the dismissal was unfair. Later, the University advertised two suitable positions, but she did not apply for either, even though she had expressed an interest in (by this time she had got indefinite leave to remain in the UK).

 

At the Remedies Hearing, the University argued that Ms Kelly had failed to mitigate her loss because she had failed to apply for either position. Ms Kelly argued in turn that there was little chance she would have been appointed to either anyway, given the competition.

 

However the EAT held that she should only recover loss of earnings up to the date when she might have been appointed to one of the jobs, had she applied. The Tribunal had been entitled to make this finding, based on the fact that she had worked for the university in a similar post for four years and that although there had been some criticisms of her work, these were not why she had been dismissed. It was reasonable to conclude that she was likely to be appointed if she had applied.

 

Although an unusual case, employers defending unfair dismissal claims might well want to compile details suitable alternative positions advertised, so that in case the employer loses, the claimant can then be put on the spot and asked why they did not apply for this or that other job.

      

James Carmody

RECULVER SOLICITORS     

Getting Redundancy Selection Right

As you know, in order for a redundancy to be fair, not only must there be a real redundancy situation, but a fair redundancy selection procedure must be followed. In Pinewood Repro Ltd t/a County Print v Page this month the EAT has held that a properly conducted scoring exercise to select employees for redundancy will give an employee a fair and proper opportunity to understand it fully, and an Employment Tribunal should not normally interfere with the outcome of such an exercise.

Mr Page was put into a redundancy pool with two other employees. They were scored on a matrix and he came out bottom. He challenged the process on appeal, including querying whether those awarding the scores were the best people qualified to do so, and asking for a further explanation as to how the scores had been arrived at. He was not satisfied with the answers he received and claimed unfair dismissal.

The Tribunal held that the failure to provide an explanation of the scores and the "patently challengeable" matters relied on by the assessors to mark Mr Page meant that his dismissal was procedurally and substantively unfair. The EAT reiterated established principles for a "fair consultation" as involving giving employees a fair and proper opportunity to understand fully the matters about which it is being consulted, and to express their views on those subjects, with the employer considering those views properly and genuinely.

The EAT held that this did not necessarily mean that an employer must always provide an explanation of how an individual's score has been arrived at, but it might well include giving an employee sufficient information to enable him to challenge the scores given to him.  On the other hand, had Mr Page been able to challenge the scoring, had those comments been relayed back to  the markers, and had they then stuck by their original decision ‘it is difficult to conceive that the Tribunal would seek to interfere with that decision.’

Therefore when an employee challenges the criteria on which he or she has been selected for redundancy, it is wise to fully review the scoring and selection at the appeal stage.

   

James Carmody

RECULVER SOLICITORS     

         

The Equality Act and Compromise Agreements

You may recall that earlier this month we raised the fact that section 147(5) of the Equalities Act 2010 may mean that if a lawyer has represented an employee in a claim under the Act, he or she may not be able to advise on a compromise agreement settling that claim.

The Government Equalities Office has now issued guidance now saying that that s147 does not prevent the complainant’s legal representative from acting as the qualified adviser for the purpose of a compromise agreement. They say ‘It is not a proper reading of the section to suggest that the complainant's adviser is debarred from being the qualified adviser, because the section has to be read as a whole’ and that ‘It only prohibits a person who is acting for another party to the complaint or the compromise contract, or a person connected with that other party, from being an independent adviser.’

The GEO may believe the section to be clear, but it could have been drafted a lot better. The GEO’s guidance will be influential though when Tribunals come to interpret the provision.

   

James Carmody

RECULVER SOLICITORS     

Dismissed because your partner is pregnant

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

       

Dismissal because your partner is pregnant.

In Kulikaoskas v MacDuff Shellfish last week the EAT has held that a man who was dismissed could not claim ‘associative pregnancy discrimination’ because his partner was pregnant.

Mr Kulikaoskas and his partner had both been employed, and then they were both dismissed after a month. Mr Kulikaoskas claimed he was dismissed because he told a supervisor that he helped his partner lift heavy weights at work because she was pregnant.

You will recall the case of Coleman v Attridge Law in which a mother successfully relied on the principle of associative discrimination’ for a reason connected with her son’s disability. Mr Kulikaoskas tried to extend that principle to the Sex Discrimination Act. However the EAT distinguished the various EU directives, saying there was a very different body of law on the 'uniquely female state of pregnancy'.

The Equality Act 2010 does now cover associative discrimination under the Protected Characteristics of race, sex, disability, age, sexual orientation, religious belief or age. However legal commentators suggest it is not entirely clear whether it will be possible to claim pregnancy related associative discrimination under the new act.

  

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

     

Regulated by the Solicitors Regulation Authority: Firm 405070 | Principal: James Carmody | Consultant: Carol Aylott |  * Serviced Office. Meetings by Appointment Only

The Equality Act and Compromise Agreements

As has been widely reported in the press, them much vaunted Equality Act came into force on the 1st October, consolidating and extending discrimination law to cover the be ‘Protected Characteristics’ of Age, disability, marriage and civil partnership, sex, gender reassignment, pregnancy and maternity, sexual orientation, race, religion or belief.

One unexpected aspect of the Equality Act is section 147 (5) which states that for the purposes of finalising Compromise Agreements, the employee's "independent adviser" cannot be "(a) a person who is a party to the contract or the complaint.... (d) a person who is acting for a person within paragraph (a)...in relation to the contract or the complaint...". Some commentators are concerned that that this suggests that a solicitor negotiating terms of severance cannot also be the employee’s "independent adviser" to settle Equality Act claims in compromise agreements.

This seems both surprising and (apparently) un-intended. It could mean that a solicitor who negotiates a better deal on behalf of an employee, has to then send them off to an unconnected law firm to then finalise the Compromise Agreement.

In any event employers should overhaul their standard compromise agreements and advisers certificates in the light of the new Act. Do let us know if you would like any further advice on this or anything else.


James Carmody
RECULVER SOLICITORS

www.reculversolicitors.co.uk







Regulated by the Solicitors Regulation Authority: Firm 405070
Principal: James Carmody
Consultant: Carol Aylott
* Serviced Office. Meetings by Appointment Only

Bribery & Corruption

No, we’re not talking about the world of cricket. The Bribery Act 2010 came into force this year and creates new offences of:

· bribing another person (S. 1)
· being bribed (S.2)
· bribing a foreign official (S. 6)
· a commercial organisation failing to prevent bribery (S. 7).

There is a maximum penalty of ten years' imprisonment or an unlimited fine for which employees, directors and commercial organisations can be liable. A commercial organisation will be guilty of an offence where it bribes someone with the intention of obtaining or retaining business or an advantage in the conduct of business. A commercial organisation can however raise a defence if it can show that it had 'adequate procedures' in place to prevent such conduct. A body corporate may be liable for the offences if the offence was committed with the consent or connivance of a senior officer of the body corporate or a person purporting to act in such a capacity.

Given the potential for an unlimited fine or ten years' imprisonment, employers would be wise to undertake a comprehensive review of their exposure to bribery now, so that they are positioned to revise their practices when the Government issues guidance on what amounts to 'adequate' anti-bribery procedures.

Probably, the response of most people reading this would be ‘chance’d be a fine thing!’ However it would be timely to review your policy for receiving and declaring gifts and hospitality, or to put one in place if you do not yet have one. This is crucial in the event that you want to raise a defence against the offence of failing to prevent bribery. If you would like any further information on this or anything else, do let us know.


James Carmody
jrc@reculversolicitors.co.uk
www.reculversolicitors.co.uk

1st October 2010: National Minimum Wage goes up

The National Minimum Wage goes up on the 1st October 2010:

• the principal rate of the national minimum wage increases from £5.80 to £5.93 per hour (now payable from age 21);
• the rate for workers aged between 18 and 20 increases from £4.83 to £4.92 per hour;
• the rate for workers aged below 18 who have ceased to be of compulsory school age increases from £3.57 to £3.64 per hour.

Less well known, but where the employer provides accommodation as part of the job (for example for a live-in nanny) the "accommodation amount", being the maximum the employer can charge the employee for that accommodation increases from £4.51 to £4.61 per day.

London Mayor Boris Johnson, has also increased the London living wage £7.85 per hour, though this has no statutory enforceability.

Trust & The Beautiful Game

In McCormack v Hamilton Academical Football Club Ltd, Sept 2010 in the Scottish Court of Session, Mr McCormack was employed by Hamilton the Club as its Assistant Manager in June 2008, and summarily dismissed a couple of months later. He brought a claim for wrongful dismissal (in breach of contract). The Club argued that he’d been guilty of misconduct on a number of occasions and that the cumulative effect enabled them to summarily dismiss him.

The Court of Session held that taken in isolation, no single one of the allegations could justifying summary dismissal. The next question, though was whether the cumulative effect of Mr McCormack's misconduct had caused the Club to reasonably lose it’s trust and confidence in him.


Some of the allegations (for example, that Mr McCormack had behaved inappropriately on the touchline and in the dressing room) were proven, but others (for example allegations that he had bullied certain players) were not. Furthermore they did not seem to have been material to the decision to dismiss. Taken in the round, Mr McCormack's conduct did not merit summary dismissal. He had been wrongfully dismissed.


The decision might have been different if the Club had issued a formal warning to Mr McCormack at the time. The obligation of confidence and trust is a mutual one: the Club itself was under a duty to keep Mr McCormack fully informed of any perceived deficiencies in his conduct during the course of their employment. That did not occur here.


Some employers reading this may think Hang on, cant we dismiss for any reason in the first year of employment? The answer is that employees cannot normally claim unfair dismissal in the first year of employment. Mr McCormack claimed wrongful dismissal. The Club would have been fine had it observed its contractual notice provisions. Employers should tread very carefully if they want to dismiss summarily for a series of disciplinary issues.

With thanks to Emplaw.co.uk for news of this decision.

James Carmody

Equality Act. 1st October 2010

As you probably know by now, the Equality Act 2010 comes into force on the 1st October 2010, and aims to consolidate and harmonise the equality legislation that has built up since the early Nineteen Seventies.

However, some of the provisions which will not yet come into force on the 1st October include:

· the socio-economic duty on public authorities
· dual discrimination, i.e. a right to bring discrimination claims combining protected characteristics
· the requirement on private sector employers to publish gender pay gap information.
· Positive action in recruitment and promotion. .

So when will these provisions come into effect? Watch this space. For more information the basic provisions of the Act, please see our earlier bulletins, or email us today for further information.

Default Retirement Age

At present, the Employment Equality (Age) regs set a default retirement age of 65, but give employees the right to ask to work beyond their 65th birthday (but which the employer does not have to agree to).

  

The Coalition government has now announced that it will be phasing out the Default Retirement Age from April 2011. Does this mean that employees can continue working forever? Not quite. It is currently planned that:

• After the 1st October 2011, employers will not be able to retire staff on a compulsory basis.
• Retirement dismissals will still be permissible after 1 October 2011, but only if ‘objectively justified’, though quite what an objective justification for retirement may be remains to be seen.
• Between the 6th April and the 1st October 2011, only people who were notified of their retirement before the 6th April 2011, to retire before the 1st October 2011 can be compulsorily retired.

In their press announcement the government explains this as people are living ‘longer, healthier lives’, and not (as cynics may suspect) because of the looming pensions crisis. Consultation is ongoing, and news of how this will be implemented will follow in due course, but this is likely to entail a major change in how employers and employees alike think about retirement.

James Carmody
www.reculversolicitors.co.uk

Equality Act. ‘Associative’ Discrimination.

The Equality Act comes into force on the 1st October 2010. In the run up to its introduction we will be looking at some of the interesting features of the Act. One issue the Act standardises is the concept of discrimination by association.

The ban on discrimination by association (for example a parent of a disabled child) will be extended to all protected characteristics. For example this will now cover spouses, partners, parents and carers who look after a disabled person or older relative from discrimination. They will be protected by virtue of their very close link to that person. The new definition of direct discrimination in S.13 makes no reference to the protected characteristic of any particular person.

This broader wording means that so-called ‘associative discrimination’ is covered. If Aardvark Associates passes Brenda over for a promotion because Brenda cares for her elderly mother, Aardvark can be held to have discriminated against Brenda because of age, even though Brenda’s age is not the reason, but the age of her mother.


James Carmody

Equality Act. Pre-Employment Health Questionnaires.

The Equality Act comes into force on the 1st October 2010. In the run up to its introduction we will be looking at some of the interesting features of the Act. One issue the Act standardises is the concept of ‘perceptive discrimination’

Pre-employment enquiries about health issues are thought to be one of the main reasons why disabled job applicants often fail to reach the interview stage. When the Equality Act comes into force, an employer should not ask about a job applicant’s health (including any disability) before offering him or her work.


An employer does not commit an act of disability discrimination merely by asking about a job applicant’s health, but the employer’s conduct in reliance on information given in response may lead a tribunal to conclude that the employer has committed a discriminatory act. It’s a bit like asking a woman applicant if she is thinking of starting a family. The employer may not offer her the job for a perfectly legitimate reason, but will be vulnerable to a discrimination claim as a result.


This is not quite a blanket ban on pre-employment health enquiries, however. The Equality Act does not apply to questions that are necessary to establish whether the job applicant will be able to comply with a requirement and to undergo an assessment (such as someone applying for a job as a fireman). Health checks can be carried out once the job offer is made.


The employer is also entitled to ask questions necessary to monitor diversity in the range of job applicants; or to establish whether the applicant has a particular disability, where having that disability is an occupational requirement.


It’s a good idea to check that your application forms don’t include questions about medical conditions, and that you don’t ask them in the interview. However do continue to ask whether the job applicant has any special requirements you need to bear in mind prior to the interview.


James Carmody
http://www.reculversolicitors.co.uk/

Discrimination by Perception

The Equality Act comes into force on the 1st October 2010. In the run up to its introduction we will be looking at some of the interesting features of the Act. One new feature of the Equality Act is that ‘dual discrimination’ (section 14) will be made made unlawful.


For example, ‘Happy Days’ pre-school nursery are happy to employ gay nursery assistants, and are happy to employ male nursery assistants. However ‘Happy Days’ refuses to employ Bob, because he is both male and gay. Before, Happy Days might have defended a claim by Bob, by saying ‘look; we employ gay people, and we employ men!’. Now Bob can claim dual discrimination. He can say, ‘Yes, they employ men, and they employ gay people, but they do not employ gay men as care workers.

In another example Denise, a black woman is passed over for promotion to work on reception because her employer Zen Insurance thinks black women do not perform well in customer service roles. Before, Zen Insurance could have defended Denise’s claim saying ‘We have equally qualified white female and black male employees on reception, so we are not discriminatory’. Once the Act comes into force, Denise can argue that it’s because she is both black and female that she was passed over for promotion, and therefore is a victim of dual discrimination.


This idea of ‘dual discrimination is new under the Act. Some commentators question whether in practical terms it offers employees any significant new protection. However employers will need to be aware of this and refer to it in their Equal Opportunities policies

Taken To the Cleaners?

Regardless of how hopeless a Tribunal claim may be, many employers feel they are placed in an impossible lose-lose situation; because even if they successfully defend the claim, Employment Tribunals rarely make awards of costs against the employee who brought it and employers still end up out of pocket.

In the recent case of Nicolson Highlandwear Ltd v Nicolson 2010 EAT, the employee had been dismissed due to fraudulent business practice in the running of the shop he managed. Having been dismissed for gross misconduct he brought an unfair dismissal claim. The Tribunal found that although the dismissal had been procedurally unfair, the claimant’s gross misconduct had directly led to his dismissal (and so he would have been dismissed anyway).

The EAT considered whether costs should be awarded against the fraudulent employee. They held that a Claimant who lied in the tribunal and who defrauded his employer should have to pay the Respondent's costs.

Especially when the employee has been dismissed for dishonesty, the Respondent defending a claim should consider issuing a ‘costs warning’ against the claimant, saying that an application for costs would be brought if the claimant loses. However, employers should not get too excited about the prospect of recovering costs from an employee who brings a claim but is found to have lied in the course of those proceedings. Tribunals are often reluctant to make findings of dishonesty by a Claimant, costs awards remain rare and seldom cover all costs of defending a claim. Furthermore, even if an employer gets an award of costs, actually enforcing the judgement may still prove difficult, especially if the Claimant remains unemployed.

jrc@reculversolicitors.co.uk
www.reculversolicitors.co.uk

The Age of Redundancy

According to the Tribunal Service’s report last week, the number of claims for unfair dismissal, breach of contract and redundancy for 2009-10 was 17% more than the previous year, probably as a result of the credit crunch. Many employers will be keen to avoid joining this unfortunate statistic when carrying out redundancies. One recurring question is whether employers who cap length of service for calculating redundancy payments are being discriminatory on the grounds of age.
In the recent case of Kraft Foods v Hastie, in order to to keep costs down, Kraft capped their generous redundancy payments at what a redundant employee would have earned if he had remained in employment until normal retirement age. This hit the 62 year old Mr Hastie in the pocket, who sued for age discrimination. The EAT held that the cap was justified as Kraft’s aim of preventing employees from receiving a 'windfall' met a legitimate & proportionate aim, which was to compensate for future loss of earnings only.

Those employers who cap redundancy payments based on (say) no more than 12 years service (even if the employee has worked 20 years and is not near retirement) could not rely on that argument. However they generally avoid legal challenges by making payments subject to compromise agreements: Employees seldom turn down reasonably generous payments to chance their arm in the Tribunal.

James Carmody
RECULVER SOLICITORS
Tel: 0207 324 6271 | info@reculversolicitors.co.uk | 12-16 Clerkenwell Road, London EC1M 5PQ*
www.reculversolicitors.co.uk

Crippling Redundancy Costs?

According to press reports this morning, unions are warning of strikes after the government confirmed plans to change public sector redundancy payments, despite having lost a recent legal battle to reduce redundancy payments. Will other employers be in a similar fix if it’s been their custom & practice to pay generous enhanced redundancy payments in the past?



Statutory redundancy pay is actually relatively modest for the majority of employees; and amounts to a weeks pay to a maximum of £380 x full years worked (if employed for over 2 years), with a multiplier of 1.5 for years worked over the age of 41. For a redundancy pay calculator, see http://www.direct.gov.uk/redundancy.dsb. Some employers do forget that on top of that statutory redundancy payment, employees also have the statutory right to a weeks notice per full years worked to a maximum of 12 weeks (or payment in lieu). In other words, someone’s contract may say they are only entitled to 4 weeks notice, but if they have been employed for 12 years, the maximum statutory notice entitlement will apply.




In Harlow v Artemis Internation Corp Ltd HC back in 2008 it was held that a provision in a staff handbook term was an express term of the contract of employment. This had the effect that the employee was legally entitled to enhanced redundancy pay even though the right to it was set out in the staff handbook rather than in his formal contract of employment. As it had become custom and practice for Artemis to compensate redundant employees in accordance with its enhanced redundancy policy from time to time meant that this custom and practice could also have been treated as an implied contractual term if it had not already been an express term.


It’s generally unwise therefore to have enhanced redundancy terms set out in the handbook, or indeed any document circulated to staff. If you do use a formula to calculate enhanced redundancy on one occasion, it’s worth making clear that this may be amended or withdrawn at your discretion. The more rigidly you apply an enhanced redundancy formula over the years, the more vulnerable you will be to the argument that it amounts to a contractual term by custom & practice.

James Carmody http://www.reculversolicitors.co.uk/

How Depressing!

No, not England’s World Cup performance.

It’s often very difficult for employers to decide whether the medical condition that a member of staff raises is a disability as defined by the Disability Discrimination Act. The prudent approach is if in any doubt, consider whether ‘reasonable adjustments’ can be made to facilitate them in their role.

In the recent case of J v DLA Piper UK the EAT looked at whether a GP’s advice on whether J’s depression was a disability could be disregarded in favour of the advice of a specialist. J applied for a job with DLA Piper, but was rejected once she told them that she suffered from depression. The EAT said that a Tribunal (and therefore an employer) should place value on the diagnosis of the employee’s GP, and whether someone has suffered the condition in the past (because of the ‘likely to recur’ consideration).

There is no statutory definition of ‘mental impairment’ and in considering whether J’s condition had an impact on her ability to carry out normal day to day activities, and in particular her ability to concentrate, the Tribunal should have taken into account her GP’s evidence. A GP is fully qualified to express an opinion on whether a patient is suffering from depression, as depression is a condition very often encountered in general practice. Whilst the advice of a specialist may be more valuable, the advice of a GP should not be disregarded if the evidence of a specialist is not available or is inconclusive.

If someone informs you as part of the recruitment process that they suffer from depression, then beware. Of course you may not have offered them the job anyway, but do ensure that you can objectively justify such a decision. If you offer someone a job, and only then find out about their medical condition, it would be unwise to withdraw a job offer without first taking legal and medical advice. GP’s are often sympathetic towards their patients, and this may affect the opinion they express. If you think this might be the case, go directly to a suitably qualified specialist.

James Carmody

Fake Sick Certificates. Without Prejudice Communications

Fake Fit Notes:
As you know ‘Fit Notes’ replaced GP ‘Sick Notes’ in April 2010 under which a doctor may give a ‘may be fit for work’ statement if they think that their patient’s health condition could allow them to work if they got suitable support from their employer. GP’s can also give recommendations to enable this to occur.

The feedback I have received so far is that very little has changed; GP’s are still reluctant to make such recommendations in the majority of cases and furthermore the new fit notes apparently look like they could have been produced by anyone with a word processor. This is worrying because Personnel Today report that a website called Doctorsnotestore.com is selling fake fit notes, written on official doctors' notepaper, with an authentic-looking stamp. Faking a GP certificate would of course be fraudulent and could result in dismissal for gross misconduct. You might become suspicious if the GP surgery on the note paper is different to the employee’s normal surgery, but fake certificates could be difficult to spot.

Rewarding Long Term Staff:
I am grateful to Harris & Co accountants (www.harrisandco.uk.com) for informing me that non-cash rewards (free of tax) for long service can be paid. This is up to £50 per years service to a maximum of £1,000 for 20 years service. However there are apparently some complicated rules around this, so you should take advice before attempting to put such a scheme into effect. Though unlikely to be of interest to city bankers, this tax break could be worth looking into if you do have long-serving members of staff.

Without Prejudice’ communications:
Some employers think you can say anything to an employee as long as it you first say the conversation is ‘without prejudice’. That is not strictly speaking the case.

In Woodward v Santander, the EAT has recently held that the 'without prejudice' rule (meaning such communications cannot be referred to in open court) will not apply where there has been 'unambiguous impropriety' and even then only in the very clearest of cases, for example where without prejudice discussions were used to cover up perjury or blackmail.

Nonetheless employers would be wise to only say such things to an employee that they would be willing to justify if it came out in court. For example, if someone is charged with gross misconduct, don’t say ‘take this offer or we’ll sack you’. Do say ‘if you don’t accept this offer, we will pursue a fair disciplinary procedure against you which may result in your dismissal’.

World Cup Fever Grips The Nation

Every four years or so, members of staff mysteriously absent themselves from the office for the nearest pub with a big screen to watch the latest World Cup game. If England go all the way, the tension will be unbearable for those who are interested in the beautiful game, and unendurable for those who aren’t.

The first two England fixtures seem to have evening kick-offs, one on a Saturday and the next on a Friday, so the chances of staff phoning in sick with sore heads the next day are minimised, at first at least. England then plays Slovenia on Wednesday 23rd June at 3pm UK time. ACAS has published guidance for employers for this crucial period between the 11th June and 11th July, and their watchword is ‘use teamwork to get the best out of each other and, where possible, find compromises that will keep everyone happy’. Its advice to employers is to be:

- Flexible, where possible - for example, by altering start and finish times during the working day or allowing longer lunch breaks
- Clear about what you expect from employees - in terms of attendance and performance during the World Cup. Managing employees expectations of what might be possible is key to keeping them onside
- Communicative - start talking to each other now about the World Cup and how you hope to manage leave and working hours
- Honest - if you cannot accommodate any changes to your work practices then say so. Also, you may need to remind employees that any special arrangements for watching matches are only temporary
- Fair - you need to be seen to be fair about the way you respond to requests for time off and avoid favouritism.

It’s worth keeping an eye on any games which may clash with work, and to remind staff if necessary that throwing a sickie after games will be frowned upon. Remember, many members of staff may support other national sides, and should be treated equally with England supporters. Enjoy!

Disssing & Dismissing

In Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2010], a doctor was summarily dismissed following a disciplinary proceedings. He successfully argued that his dismissal was wrongful (in breach of contract procedures. How much would should he get?

The Trust argued that any damages for breach of contract should be limited to his 3 month notice period. Dr Edwards argued that the breaches by the Trust affected his professional status, causing career long losses of some £4m.

The Court of Appeal agreed that if the substantive claim succeeded, loss of earnings could cover the period in which Dr Edwards would have remained employed had the contractual disciplinary procedure been observed. Dr Edwards can now claim that his career long losses would be £4m. As a fall back argument, the Trust may argue that he would still have been dismissed even had their procedures been adhered to. This decision is controversial though because it could give employees a way around the statutory cap of some £65,300 in unfair dismissal claims and the one year qualifying period. The Trust is seeking leave to appeal to the Supreme Court. Lesson for employers; make disciplinary procedures non-contractual, & follow procedures if at all possible (Source: ELA, barrister Daniel Barnett.)
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

Regulated by the Solicitors Regulation Authority: Firm 405070 Principal: James Carmody Consultant: Carol Aylott * Serviced Office. Meetings by Appointment Only

In the Name of Equality

The Equality Bill has been approved by the House of Commons and will come into force in October 2010, with some provisions being delayed till 2011. Some of the main points to be aware of are:

What is covered?
- The Equality Act consolidates and extends discrimination law to cover age, disability, sex, gender reassignment, sexual orientation, race, religion or belief.
- The Act also covers in many but not all instances, marriage and civil partnerships.
- These will all be ‘Protected Characteristics’.

Disability:
- ‘Disability related' discrimination will be replaced with a prohibition on discriminating against a disabled person by treating them unfavourably where that treatment is not a proportionate means of achieving a legitimate aim.
- Employers wont be able to ask job applicants questions about their health and whether they have a disability, other than in specified circumstances (including whether the applicant will be able to carry out a function that is intrinsic to the work concerned).
- Employers will still be entitled to screen applicants about health after making a job offer.

Discrimination by Association:
- The ban on discrimination by association (for example a parent of a disabled child) will be extended to all protected characteristics. This will now cover spouses, partners, parents and carers who look after a disabled person or older relative from discrimination. They will be protected by virtue of their very close link to that person.

Discrimination based on Perception:
- Employees wrongly thought to have a protected characteristic (for example, an employee thought to be gay but who isn’t) will be able to claim for sex discrimination.

Combined Characteristics:
- From April 2011 a claim can cover combined characteristics (for example a woman who is discriminated against both for being a woman and being gay)

Recommendations:
- Tribunals will be able to make recommendations when unlawful discrimination is proved.
- This could include re-training staff, publishing its selection criteria used for staff transfer or promotion, setting up a review panel to deal with equal opportunities, harassment and grievances.
- Failure to comply could be damaging to the employer's reputation and be used in evidence against the employer in future discrimination claims.

Under Represented Groups:
- Employers can choose someone for a job from an under-represented group when they have the choice between two or more candidates who are ‘as qualified' as each other.
- However Employers must not have a policy of doing that in every case.
- Many employers will not wish to take the risk of trying to apply this in practice.

Talking about Pay:
- Employees will be free to discuss pay, and whether there is a connection between pay and having (or not having) a particular protected characteristic
- This will cover seeking or giving information with current and former colleagues.
Action taken against them for being involved in such a pay discussion will be unlawful victimisation. So secrecy clauses against talking about pay will be out.
- Employers with 250 employees or more will be encouraged, on a voluntary basis, to publish their pay statistics to demonstrate how they are tackling the gender pay gap.
- This may become compulsory in 2013.
- Public bodies with 150 or more employees may have to publish their gender pay gap from April 2011.

Public Sector Equality Duty:
-From April 2011 there will be a new single public sector equality duty.
-Public bodies will be required to consider needs, by reference to these characteristics, when designing and delivering public services.

James Carmody is an employment solicitor specialising in UK employment law based in Clerkenwell, Central London EC1.