Posts Tagged ‘employment’
Tuesday, January 31st, 2012
With 179 days to the Olympics, and an anticipated 70,000 volunteers working on the games, ACAS has issued guidance encouraging businesses to think about arrangements early to avoid last minute disruption.
There is no legal entitlement to leave for voluntary work and it may be necessary to adopt a ‘first come, first serve’ policy and consider whether leave will be unpaid or paid. This can also apply where a number of employees request annual leave on the same day.
You should consider how to deal with employees who have travel disrupted and whether to implement flexible working or remote working. Sickness absence may also increase on particular days which return to work interviews may assist with. There may be performance issues with staff watching television on their computers which could be assisted by allowing this at particular times of the day.
Whilst the prospect of considering these points may be daunting, effective planning will minimise the impact of the games whilst flexibility will hopefully boost morale.
Posted by Amy Dowling, who specialises in contentious and non-contentious employment matters including defence at employment tribunals, unfair dismissal, redundancy and discrimination; also drafting contracts, compromise agreements, policies and procedures.
Amy Dowling
0207 7337 1002
adowling@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: 2012 Olympics, ACAS, employment, Olympic Games, Retail, sickness absence, voluntary work
Posted in Employment, Retail | No Comments »
Friday, January 20th, 2012
Can an employee act reasonably in rejecting a suitable alternative offer of employment even where a reasonable employee would have accepted the offer?
Yes, according to Readman v Devon Primary Care Trust. Mrs Readman, a community matron, refused an offer of suitable alternative employment as hospital matron, as she did not wish to work in a hospital. Her employer denied her a redundancy payment, stating she had unreasonably refused the alternative post. The Tribunal found that a reasonable employee would have accepted the post. The decision was overturned on appeal on the basis that the Tribunal failed to give adequate weight to the employee’s personal reasons for refusing the role. The EAT found that Mrs Readman was entitled to her redundancy payment.
This case is not helpful to employers who need to reorganise their business but wish to avoid expensive redundancies. The individual circumstances of the employee – domestic and travel arrangements, caring responsibilities and career preferences – are relevant and need to be considered.
Joanne Lewis
0121 237 3906
jlewis@brownejacobson.com
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Rating: 6.7/10 (3 votes cast)
Tags: EAT, employment, employment appeal tribunal, readman v devon primary care trust, redundancy, redundancy pay
Posted in Employment | No Comments »
Friday, January 13th, 2012
The Government has today made a long overdue announcement following their consultation on changes to the Teachers’ Performance Regulations. The announcement confirms that the Government are going to remove a lot of the previous restrictions on schools to dismissing ‘underperforming’ teachers. The model policy that was consulted on combines performance management with capability and envisages dismissal for routine cases within a term. As part of the recommendation, the period teachers are given to improve could be as short as 4 weeks.
It will be up to individual schools to review their policies from September in light of the recommendations of the Government. Schools seeking to put this robust approach into practice should be mindful that the ultimate test is not the word of Mr Gove but that of the Employment Tribunal. Whether a Tribunal would consider the government’s timetable to be fair remains to be seen.
Posted by Heather Bragg, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Heather Bragg
0115 976 6553
hbragg@brownejacobson.com
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Rating: 9.0/10 (1 vote cast)
Tags: Education, employment, employment tribunal, mr gove, schools, teachers, teachers performance regulations, teaching standards
Posted in Education, Employment | No Comments »
Friday, January 6th, 2012
The dawn of 2012 brings the annual discussion about upcoming employment law developments. The following may be of particular interest to employers:
- The qualifying period for unfair dismissal is expected to be increased from one to two years in April
- Pensions auto-enrolment for larger employers begins in October
- Consultations are to be progressed on the introduction of the following:
- ‘protected conversations’ between employers and employees about employment issues
- a standard text for compromise agreements
- allowing smaller employers to execute ‘no fault’ dismissals on payment of a prescribed sum
- early compulsory conciliation of all claims
- introduction of fees to bring a tribunal claim
The government is keen to reduce the amount of red tape in employment law to support business and boost the economy. This will be welcomed by employers. However care must be taken to ensure that the changes improve the effectiveness of the current framework, and do not simply add to employers’ administrative burden.
Posted by Hayley Prescott, who specialises in employment law, both contentious and non-contentious, including tribunal claims, unfair dismissal, redundancy, policies and procedures, compromise agreements, contractual issues and general advisory work.
Hayley Prescott
0115 976 6116
hprescott@brownejacobson.com
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Rating: 9.0/10 (1 vote cast)
Tags: auto enrolment, compromise agreements, employment, employment law, employment tribunals, further education, Pensions, Retail, unfair dismissal, unfair dismissal claims
Posted in Employment, Further Education, Retail | No Comments »
Wednesday, December 14th, 2011
Following the government announcing its intention to introduce fees in employment tribunals, today the Ministry of Justice has opened a consultation, inviting tribunal users to comment on the way those fees will be structured. The two options for consideration are:
- an initial fee of £150-£250 to bring a claim, with an additional fee of £250-1,250 if it goes to hearing, with no limit on the maximum award,or
- a single fee of £200-600 and a £30,000 limit on the maximum award (with the option to pay an additional £1,750 if an award over £30,000 is sought)
Last year the tribunal system cost the taxpayer £84 million to run. The primary aim of the fee is to ensure claimants make a contribution towards this cost. From an employer’s perspective, however, this should also discourage claimants from bringing claims and reduce their expectations of the maximum award that they may obtain if successful. This in turn should assist employers in recruiting without fear of such claims being brought.
Posted by Hayley Prescott, who specialises in employment law, both contentious and non-contentious, including tribunal claims, unfair dismissal, redundancy, policies and procedures, compromise agreements, contractual issues and general advisory work.
Hayley Prescott
0115 976 6116
hprescott@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: costs, employment, employment tribunal fees, government, Ministry of Justice
Posted in Employment | No Comments »
Wednesday, November 23rd, 2011
After much debate the Government have today announced proposals and further consultations affecting many areas of employment law. The key areas are:
- Unfair dismissal qualifying period will increase to two years.
- It will be compulsory for all claims to be lodged with ACAS prior to the Tribunal so that a conciliated resolution can be attempted.
- Employment judges will have discretion to impose financial penalties on employers who breach employee’s rights.
There will also be a fundamental review of the employment tribunal rules of procedure led by the President of the Employment Appeal Tribunal.
In his speech announcing these plans, Vince Cable was clear that the reforms were intended to stop employment law being a barrier to employers growing their business. Tribunals should be a last resort for resolving workplace problems. Whether the proposals will have the desired effect remains to be seen.
Posted by Heather Bragg, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Heather Bragg
0115 976 6553
hbragg@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: ACAS, Education, employment, employment appeal tribunal, employment law, employment tribunals, further education, Retail
Posted in Education, Employment, Further Education, Retail | No Comments »
Friday, November 18th, 2011
Munir Yakub Patel, an administrative clerk, made legal history today after being handed a three-year prison term for bribery and ordered to serve six years concurrently for misconduct in a public office.
Patel pled guilty on October 14 this year to requesting and receiving a bribe intending to improperly perform his functions, contrary to Section 2 of the Bribery Act. Patel was charged in relation to his employment at Redbridge Magistrates Court and was the first person charged since the Act came into force.
The imposition of a prison sentence for a relatively minor instance of bribery shows very clearly that the Act will not just be used against big corporates and sends a powerful message to individuals and smaller businesses. If businesses have not yet put in place suitable procedures to ensure compliance with the Act then this case should serve as a reminder as to why they need to so. The threat of unlimited corporate fines and prison for employees is very real.
Matthew Woodford
0121 237 3965
mwoodford@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: bribery, bribery act, browne jacobson, criminal proceedings, employment, Public Sector, Regulatory
Posted in Commercial contracts, Competition, In-house Lawyers, Public Sector, Regulatory | No Comments »
Friday, October 28th, 2011
From leaked documents discussing scrapping unfair dismissal rules to announcements that the qualifying period for a claim is going to be upped to 2 years, it is clear that issues around dismissing staff are high on the Government’s agenda.
This theme has continued this week with an announcement from Nick Clegg that he plans for employers to be able to have ‘protected conversations’ with employees. These are intended to be a way of allowing potentially uncomfortable discussions about performance management and retirement to happen without fear of being taken to an employment tribunal.
Many employers would agree that at times, the ‘cards on the table’ discussion could be a sensible way of managing a particular circumstance. However, what if such discussions contain discriminatory comments? Is it the Government’s intention that the employee would then be prohibited from referring to the discrimination in a tribunal? Whether this idea will ever be workable in practice remains to be seen.
Posted by Heather Bragg, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Heather Bragg
0115 976 6553
hbragg@brownejacobson.com
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Rating: 9.0/10 (1 vote cast)
Tags: discrimination, employment, employment tribunal, protected conversations
Posted in Employment | No Comments »
Friday, October 21st, 2011
All Claimants have a duty to mitigate their loss for the purpose of claiming compensation in the Employment Tribunal. But how far does this duty go when offered redeployment by their employer?
In the case of Debique v Ministry of Defence the Claimant succeeded in her claim for indirect race and sex discrimination. However the Court of Appeal held she had failed to mitigate her loss by rejecting redeployment which would have provided stability and addressed her childcare difficulties. Therefore there was no award for loss of earnings; only for her injured feelings.
Claimants will argue that it is unreasonable to expect them to continue working for an employer when they have suffered discrimination. However, the size of the army and the number of bases around the country was a factor in this particular case. Large multinationals or retailers therefore may be able to rely on this decision when a Claimant has been offered and refused a role at another location working with different individuals.
Posted by Gemma Steele, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Gemma Steele
0121 237 4561
gsteele@brownejacobson.com
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Rating: 8.0/10 (3 votes cast)
Tags: court of appela, debique v ministry of defence, discrimination, employment, retailers
Posted in Employment, Retail | No Comments »
Wednesday, October 19th, 2011
Early in 2012, the NHS Constitution will be amended again, to add:
- An expectation that staff raise concerns at the earliest possible opportunity
- Clarity around the legal rights of staff when raising such concerns
There may also be an independent authority for staff to turn to when they feel that their organisation is not listening or responding appropriately.
NHS employers will need to review and update their existing whistleblowing policy in light of these changes, and we can expect a surge of whistleblowing employment tribunal claims.
The Constitution was published in January 2009, to be reviewed every 10 years, but was revised in March 2010 to add further patient “rights” eg to treatment within 18 weeks. Our experience is that the more the language of “rights” is used, the more people litigate when expectations are not met.
Posted by Gemma Steele, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Gemma Steele
0121 237 4561
gsteele@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: employment, employment tribunal, legal rights of staff, NHS constitution, whistleblowers
Posted in Employment, Health, NHS | No Comments »
Wednesday, October 5th, 2011
The Government has announced that the length of service needed for the right to bring an ordinary unfair dismissal claim will increase from one year to two, from April 2012. It claims the move will reduce the number of unfair dismissal claims brought against employers each year by 2,000. The move has been welcomed by the CBI, but are unfair dismissal claims by employees with between one and two year’s service really the problem for employers? Of more concern to employers must surely be unfounded allegations of discrimination (for which there is no service requirement), which often require long and costly employment tribunal hearings to defend.
The qualifying period of service for claiming unfair dismissal used to be two years, before it was successfully challenged in Europe in the late 1990’s as being indirectly discriminatory against women. It will be interesting to see if such a challenge is brought following this latest announcement, and whether such a challenge would stand up.
Posted by Tom McLaughlin, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Tom McLaughlin
020 7337 1033
tmclaughlin@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: browne jacobson, CBI, Claims, discrimination, employment, employment tirbunal, government, length of service, qualifying service, Tom McLaughlin, unfair dismissal, unfair dismissal claim
Posted in Employment, Health, Retail | No Comments »
Friday, July 29th, 2011
In order to determine whether an individual is an employee or self-employed contractor it is necessary to look at what both parties agreed. This is typically reflected in the written terms of a contract, but may not be.
In Autoclenz Ltd v Belcher, 20 valeters described themselves as self-employed, paid their own tax, purchased their own insurance, uniforms and materials, and signed contracts which said they could choose when to attend work and send along a substitute worker. In fact, it was always intended that they would have to attend work and undertake that work themselves; the business would not have operated otherwise. The Supreme Court held that the valeters showed that the written agreement between the parties entered into was not reflected in the terms. So the true relationship was that of an employer and employee.
Previously, as long as the written contract is not a ‘sham’, (which was a high threshold test), the written terms prevailed. Now, this approach is too narrow. Employers should now bear in mind that a skilfully drafted written contract (which this one was) designed to make someone a contractor not an employee, will be disregarded if there is evidence (as there was here) that a different agreement was actually reached.
Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com
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Rating: 9.0/10 (1 vote cast)
Tags: Autoclenz Ltd v Belcher, contracts, employment, self-employed contractors, Supreme Court
Posted in Employment | No Comments »
Wednesday, July 27th, 2011
Following the abolition of the General Teaching Council for England, (GTCE), a consultation document detailing proposed changes to the teacher disciplinary and induction regulations have been released.
As well as dispensing with a register for teachers, another of the proposed features is for employers to decide which cases of ‘serious misconduct’ to refer to the Secretary of State. It is proposed that a new teaching agency will act on behalf of the Secretary of State to undertake the day to day administration of the regulatory processes.
At present all dismissals and issues of misconduct are referred up to the GTCE, who then decide what action to take. If the proposals go through, anything less than the referred cases of ‘serious misconduct’ will be dealt with by the schools themselves. Schools will undoubtedly need guidance on what cases should be referred and how to manage the cases they will be expected to deal with on their own turf.
Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com
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Rating: 9.0/10 (1 vote cast)
Tags: consultation, employment, GTCE, Secretary of State, teacher disciplinary and induction regulations, teachers, teaching agency
Posted in Education, Employment | No Comments »
Friday, July 22nd, 2011
The EAT has decided that there was no TUPE transfer where residents of a care home were discharged home from the care of an NHS Trust, and who received support from two independent service providers who help residents live independently in their own homes. This contrasted with the care provided previously by the trust, where tasks were carried out on the residents’ behalf.
The EAT held that there could be no relevant transfer or service provision change under TUPE because the economic entity did not retain its identity after the transfer. There was a move from ‘institution’ to home and from ‘management’ to ‘support’ so that the services provided to the residents were not ‘fundamentally or essentially the same’ after the change in provider.
But where exactly is the distinction to be drawn between those care services provided before and after the transfer, so as to prevent TUPE applying? In a different factual scenario, that might be a difficult question to answer.
Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com
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Rating: 1.0/10 (1 vote cast)
Tags: care homes, care services, EAT, employment, NHS trusts, tupe
Posted in Employment, NHS, Social Care | No Comments »
Wednesday, July 6th, 2011
As employers look to cut costs, the employment appeal tribunal has given guidance to those seeking to impose pay-cuts.
Building maintenance company Garside and Laycock faced trading difficulties and sought to reduce employees’ pay by 5%. Mr Booth was the only employee out of 88 not to accept the pay-cut and was dismissed.
The EAT set aside an employment tribunal’s decision that Mr Booth was unfairly dismissed and in doing so reminded us that:
- a proposed pay-cut need not be “vital for the employer’s survival” to justify a dismissal for not accepting it
- when considering fairness the correct question to ask is whether it was reasonable for the employer to have dismissed the employee not whether it was reasonable for the employee to have rejected the proposed pay-cut and
- whether such a dismissal is fair must be considered “in accordance with equity” and that it may not be equitable if a pay-cut is proposed for the majority of the workforce but excludes management
Posted by Tom McLaughlin, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Tom McLaughlin
020 7337 1033
tmclaughlin@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: Dismissal, EAT, employment, employment appeal tribunal, Garside and Laycock
Posted in Employment, Retail | No Comments »
Monday, May 23rd, 2011
The Coalition government has set out its proposals for a “radical” new system of parental leave from 2015 in its Modern Workplace Consultation. The government plan to replace the current maternity, paternity and parental leave scheme with a system that aims to give parents greater choice and to facilitate shared parenting.
Proposals include preserving the existing paid maternity and paternity leave period but allowing for more flexibility. The proposals suggest that after 18 weeks, maternity leave be reclassified as “parental leave” which either parent can take off. Both parents would be able to take leave at the same time if they wanted to, and/or book it off in blocks.
We expect there will be concerns from employers about the practicalities of dividing leave to be taken up in one or more separate blocks, however, employers would be able to insist that leave should be taken over a continuous period if an agreement cannot be met.
The consultation period ends on 8 August 2011.
Posted by Gemma Steele, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Gemma Steele
0121 237 4561
gsteele@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: employment, employment law, maternity leave, modern workplace consultation, paternity leave, shared parental leave, shared parenting
Posted in Employment | No Comments »
Friday, May 13th, 2011
In a beautifully ironic twist, the secret confidentiality agreement imposed by Wikileaks (described as being “at the forefront of anti-censorship” on its own website) on its employees has been leaked to the press.
The confidentiality agreement states that any significant breach of its terms will result in a loss to Wikileaks of £12,000,000, which it would then attempt to recover from whichever employee dared to leak information to the outside world. Luckily for the employees, it seems unlikely that this monumental figure is a genuine and reasonable pre-estimate of loss, meaning that the courts would be very unlikely to allow Wikileaks to claim such a sum.
The agreement also gives examples of how such loss may be caused to Wikileaks, the first listed being “loss of opportunity to sell the information to other news broadcasters and publishers”. It seems unlikely that the sources who risk their livelihoods to provide information to the public would be happy for it to be commercialised in this way.
Alex Kynoch
0115 976 6528
akynoch@brownejacobson.com
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Rating: 10.0/10 (3 votes cast)
Tags: anti-censorship, confidentiality agreement, employment, Wikileaks
Posted in Employment, Intellectual Property | 1 Comment »
Thursday, March 31st, 2011
This week the High Court found in favour of a teacher who alleged he was wrongfully arrested following an allegation of assault by a pupil. Regardless of his willingness to attend a police station for questioning the police chose to arrest him. No further action was taken following the arrest.
Whilst the court’s agreed that the arrest was wrongful, it does not follow that the CRB check will be clear. It is often the case that police include arrest information on CRB disclosures regardless of outcome, putting the onus on employers to make the decision on suitability. The Protection Freedoms Bill offers a token improvement by giving individuals the right to request a review of the disclosure. If the courts wanted to ensure that the police took CRB disclosures more seriously, they should have imposed a duty to act reasonably when deciding the Desmond case in December.
Posted by Dai Durbridge, who specialises safeguarding of children and vulnerable adults in education, social care and health settings; defending claims against education, social care and health providers.
Dai Durbridge
0115 976 6578
ddurbridge@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: CRB checks, Education, employment, Social Care, The protections Freedom Bill
Posted in Education, Employment, Health, Social Care | No Comments »
Monday, March 21st, 2011
The government has now clarified in the new default retirement age draft regulations that the existing rules allowing employers to retire employees by issuing retirement notices on or before 5 April 2011 apply to all employees who have reached age 65 at any time before 1 October 2011. This is a change to the original draft, which stated it was only applicable to those whose 65th birthday falls between 6 April and 1 October 2011.
As a reminder, those employees who will be aged 65 or over by 30 September 2011 must be informed by their employer of their intention to retire them on or before 5 April 2011. If an employee asks to work beyond the retirement date proposed by their employer, an employer may safely grant an extension of up to six months without losing the right to retire them at the end of this period.
For further information and practical guidance please see our bulletin.
Posted by Gemma Steele, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Gemma Steele
0121 237 4561
gsteele@brownejacobson.com
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Rating: 10.0/10 (2 votes cast)
Tags: default retirement age, employment, retirement
Posted in Employment | No Comments »
