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