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
Monday, September 27, 2010
1st October 2010: National Minimum Wage goes up
The National Minimum Wage goes up on the 1st October 2010:
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.
- 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.
Monday, September 13, 2010
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
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.
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:
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
- 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
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/
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/
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