Posts Tagged ‘employment’
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 »
Wednesday, February 23rd, 2011
The rights of an employer to terminate a contract without notice could be key in deciding whether an independent contractor, trading through a limited company, has to comply with tax avoidance measure IR35.
In MBF Design Services Limited v HMRC the tax tribunal decided that the employer’s right to terminate Mr Fitzpatrick’s contract without notice was “characteristic of a contract for services but quite foreign to the world of employment”. Against this background, other terms of the contract which could be seen as confirming his employee status were given less weight.
This will give some comfort to contractors working on large manufacturing, IT or construction projects where contractors are required to use certain systems and procedures alongside employees, but have no true guarantee of work from week to week.
For employers seeking maximum flexibility from their independent contractors it does give an additional argument “after all…”, they can now explain to would-be contractors working for them “this clause helps you retain your independence ….”
Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.
Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
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Rating: 6.0/10 (2 votes cast)
Tags: contracts, employer, employment, hmrc
Posted in Commercial contracts, Employment, In-house Lawyers, Tax | No Comments »
Friday, February 18th, 2011
The Government has published draft regulations removing the default retirement age.
Those employers who were concerned about the provision of employees insured benefits, such as life assurance and private medical cover beyond 65, have been catered for with a provision that it will not be age discriminatory if an employer does not offer these benefits to employees over 65.
The retirement procedures previously in place have been completely abolished. Employers are now left almost entirely unguided as to how they can fairly retire an employee, if at all. The ACAS guidance looks at the issue of an employee who is not performing well at age 65. Their suggested options of either a ‘work place discussion’ involving asking about the employee’s retirement plans or dismissing on the grounds of capability, are not satisfactory. For those who are brave enough to rely on the ‘Employer Justified Retirement Age’, ACAS’s assurance that guidance will soon be provided because ‘case-law will develop’ is not particularly helpful.
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: employer justified retirement age, employment, retirement, retirement procedures
Posted in Employment | 1 Comment »
Friday, February 4th, 2011
Employers who have offered good pensions for the employees have had a hard time of it over the past 15 years or so, particularly for those offering final salary schemes facing large deficits.
But the Pensions Bill may offer new opportunities for employers to offer good quality pensions to their employees at a more affordable price, whether it be through utilising the new auto enrolment obligations or simply by changing their final salary schemes to allow pension increases to be in line with the Consumer Prices Index instead of the Retail Prices Index.
Removal of the default retirement age could also save employers money in the long term with members paying contributions into pension schemes for longer.
And the Pensions Bill will extend the return of surplus deadline for resolutions to be made by schemes to 6 April 2016.
The Pensions Bill may have been intended as a measure to save the Government money, but it it also provides opportunities for employers to save a few quid too.
On 12 January 2011, the Pensions Bill 2011 was introduced in the House of Lords.
Susan Evans
0115 976 6596
sevans@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: default retirement age, employment, Pensions, Pensions Bill 2011
Posted in Employment, Pensions | No Comments »
Monday, January 31st, 2011
Shortly after coming in to power the coalition government announced that it would end the “gold-plating” of EU directives – the practice implementing them in such a way that gives employees more generous entitlements. A recent European case shows the extent of the problem.
CLECA SA v Valor is a Spanish case where a local authority contracted out its cleaning services, and then brought them back in house. No assets where transferred in the process. The European Court of Justice held that this was not a transfer of undertakings under the Acquired Rights Directive, and as such CLECA’s cleaners did not transfer to the local authority’s employment.
In the UK the Acquired Rights Directive is implemented by the TUPE Regulations. A case on identical facts would be a transfer under TUPE. Given that such contracts are often terminated or transferred because of dissatisfaction with the current contractor’s performance, this situation is obviously more disadvantageous for UK employers than elsewhere in Europe.
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
0207 337 1033
tmclaughlin@brownejacobson.com
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Rating: 6.5/10 (2 votes cast)
Tags: acquired rights directive, employment, tupe, tupe regulations
Posted in Employment | No Comments »
Friday, January 14th, 2011
Former BBC presenter, Miriam O’Reilly, has recently succeeded in her claim for Age Discrimination. O’Reilly was one of four female presenters, all in their 40s or 50s, who were dropped from the BBC show Countryfile. Notably, 70 year old John Craven was kept on. O’Reilly did not succeed in her Sex Discrimination claim but would the position have been different if she had bought a dual discrimination claim?
The Equality Act 2010 introduces the new cause of action of “dual discrimination”. This provision is not yet in force but, if implemented, will prohibit direct discrimination in relation to a combination of two of the protected characteristics. For example, an older woman may in the future succeed where previously she would have failed to show less favourable treatment than a man or than a woman. The critical combination of two protected characteristics will succeed where the single strand approach would not.
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 (1 vote cast)
Tags: age discrimination, dual discrimination, employment, employment law, equality act 2010, sex discrimination
Posted in Employment | No Comments »
Thursday, January 13th, 2011
The government has today confirmed that the default retirement age will be abolished from 1 October 2011. Employers will not be able to issue new notices of retirement under the current rules after 5 April this year.
Individual employers can still operate a compulsory retirement age, provided that it can be objectively justified, although uncertainty remains over what employment tribunals will accept as objective justification. In response to concerns raised by employers, the government will introduce an exemption to the principle of equal treatment on the grounds of age, where group risk benefits are provided by employers. This will allow employers to withdraw such benefits after 65.
Employers who might have held back from performance managing staff nearing retirement, can no longer afford to do so, even if they are expected to retire in the next few years. In some cases, this may mean beginning a performance management process with employees who have been under-performing for quite some time.
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
0207 337 1033
tmclaughlin@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: default retirement age, employment
Posted in Employment | 1 Comment »
Thursday, January 13th, 2011
On 1 January 2011, the Government introduced a policy of naming and shaming employers who ignore national minimum wage legislation. It was originally intended that there would be a maintained public register. It has been confirmed that such employers will instead be named in a BIS press release.
Matters will only be referred to BIS where total arrears are at least £2k and average arrears are at least £500 per worker.
The scheme is unlikely to have an impact on those employers who are in breach inadvertently (e.g. misunderstandings about the rules on hours ‘on-call’ and subsistence payments etc). Even if an employer knowingly/deliberately fails to comply with national minimum wage obligations, it will have 28 days to make representations to BIS against being named.
Given that local and possibly national newspapers might be inclined to report this information, it is something to be mindful of. It might also provide a useful means of deciding whether or not to enter into business with a particular employer.
Posted by Helen Taylor, who specialises in employment law , including drafting of employment contracts, policies and procedures, advising on unfair dismissal, redundancy, reorganisations, TUPE, discrimination and compromise agreements; immigration.
Helen Taylor
0115 908 4897
htaylor@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: BIS, employment, national minimum wage
Posted in Employment, Social Care | No Comments »
Friday, January 7th, 2011
This week the media has been awash with claims that the tribunal system is weighted entirely in the favour of employees, further fuelled by the Director General of the CBI’s comments that the system was ‘broken’ on the BBC Radio 4 Today Programme.
The increased number of tribunal claims faced by employers has led some business leaders to call for claimants to be required to pay to lodge a claim. Figures of £30 to £500, have been mentioned, with the fee being returned if the claim was successful.
It remains to be seen whether the government will bow to this pressure. However, it seems unlikely that a barrier on workers’ rights would be imposed in the field of employment claims by enforcing an upfront payment to seek to redress alleged injustice at the time they have lost their job or feel that they have been discriminated against.
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: 8.0/10 (1 vote cast)
Tags: discrimination, employment, employment tribunals
Posted in Employment | No Comments »
Tuesday, January 4th, 2011
A gentle reminder that the new year also brings with it the end of transitional protection afforded to pension schemes following on from the ‘A-Day changes’ with effect on and from 6 April 2011.
Substantial changes were introduced on 6 April 2006 to the pension scheme arena – these are referred to as ‘A-Day changes’. Regulations were introduced setting out transitional protection for pension schemes so that the pre A-Day limits could continue to be utilised post A-Day without amending the pension scheme’s trust deed and rules.
The time is fast running out for pension schemes to continue to rely on the transitional protections. As at 6 April 2011 the transitional protection will lapse. Therefore, where the pension scheme has continued to rely on the transitional protection contained in the regulations, trustees and employers should act now to avoid any undesired effects resulting from the transitional protection ceasing to apply; for example an increase in scheme liabilities.
Posted by Victoria Leybourn, who specialises in advising companies and trustees in all aspects of pensions law and local authorities and contractors on their obligations regarding public sector pension schemes.
Victoria Leybourn
0115 976 6160
vleybourn@brownejacobson.com
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Rating: 4.0/10 (1 vote cast)
Tags: A-day changes, employment, pension schemes, Pensions
Posted in Employment, Pensions | No Comments »
Monday, December 20th, 2010
Generally speaking, an equal pay claim in an employment tribunal must be brought within six months of the end of employment. Last Friday a High Court judge has held that such claims may also be pursued in the courts, where a time limit of six years applies.
In Abdulla v Birmingham City Council 174 female employees brought claims that failure to give them pay equal to predominantly male groups was a breach of their contracts of employment. The Council applied to strike out the claims. In dismissing that application Colin Edelman QC said that the High Court did have jurisdiction to hear the claims, even though the six month time limit for a complaint to the employment tribunal had passed.
The case is only at a preliminary stage, but the final decision may open a new route for employees to bring equal pay claims which were previously thought to be time-barred and possibly resurrect claims that had previously been struck out because they were brought too late.
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
0207 337 1033
tmclaughlin@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: employment, employment tribunal, equal pay
Posted in Employment | No Comments »
Tuesday, December 14th, 2010
In the recent case of K Mehta v Child Support Agency the EAT has provided guidance on reading witness statements aloud in employment tribunals, suggesting no value is added by the practice and that it wastes tribunal time.
An odd procedure, those more familiar with civil courts may think. But what exactly are the pros and cons of reading a witness statement aloud?
These will mainly depend on the quality of the statements. The more direct input the witness has into their statement the more natural it will sound when read aloud, enhancing credibility. Witnesses who have had no input into their statement will sound foreign and may incur the embarrassment of tripping over unfamiliar words.
Whether dispensing with the need to read a statement aloud will in practice have the desired effect of reducing tribunal time, and therefore reducing costs, remains to be seen. It could mean that representatives will simply spend more time asking supplemental questions and in cross examination.
Hannah Bramhall
0121 237 4563
hbramhall@brownejacobson.com
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Rating: 2.5/10 (2 votes cast)
Tags: EAT, employment, employment tribunals
Posted in Employment | No Comments »
Thursday, December 2nd, 2010
As large parts of the country grind to a halt, many employees are unable to get to work. Some employers are asking ‘why should we pay someone for a day they haven’t worked?’ While employees ask ‘why should we lose a day’s pay through no fault of our own?’
Except where the contract of employment states otherwise (eg for sick pay and holiday pay), there is no need to pay for days when an employee does not work. So employers can withhold pay for days that an employee does not attend because of the weather (or insist they take the day as holiday).
Over-generosity about paying non-attendees when it snows risks encouraging people not to try (compare recent school closures with almost all other businesses). We suggest the general rule should be not to pay those who do not work. Employers always have a discretion to pay – eg if the employee has really tried to attend or has managed some work by email or telephone.
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: 5.3/10 (3 votes cast)
Tags: employment, employment contract, employment law, snow days, uk snow crisis
Posted in Employment | No Comments »
Wednesday, November 24th, 2010
Home Secretary Theresa May has unveiled details of the UK’s first permanent cap on non-EU foreign nationals entering the UK, which will prove problematic for many employers.
The number of visas granted will be cut by a fifth from April 2011. Tier 1 visas will be capped at 1,000 and will be limited to those with ‘exceptional talent’, including entrepreneurs, investors, sports stars and scientists. Tier 2 visas will rise to 20,700 (an increase of 7,000) but this will be limited to those with offers of jobs at graduate level.
It is not yet clear whether there will be any specific exemptions to this cap. In the meantime, the interim cap imposed in July 2010 (resulting in a 5% reduction in visas), will continue to apply. There may be a glimmer of hope for those employers who will need to exceed their quota between now and April 2011, as it may be possible to apply for a limited increase, albeit only in exceptional circumstances.
Posted by Helen Taylor, who specialises in employment law , including drafting of employment contracts, policies and procedures, advising on unfair dismissal, redundancy, reorganisations, TUPE, discrimination and compromise agreements; immigration.
Helen Taylor
0115 908 4897
htaylor@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: employment, migration cap, visas
Posted in Employment | No Comments »
Tuesday, November 9th, 2010
Compromise agreements have been used to resolve employment disputes for years, so what’s all the fuss about now?
On a literal interpretation of S147(5)(d) of the Equality Act a solicitor acting for an employee in relation to the compromise agreement is precluded from signing it off as they are not an ‘independent legal advisor’ for the purposes of the act.
This would seem absurd and the Government’s Equalities Office (GEO) has said the situation remains unchanged. However, the Law Society disagrees and has requested an urgent meeting with the GEO to resolve the issue.
In the meantime there seems to be two options for employers: continue as before and hope that tribunals take a purposive approach to find that the compromise agreement is binding or engage an ACAS conciliator and use a COT3 as opposed to a compromise agreement.
Clearly the amount of money at stake and the risk of a successful employment tribunal claim should be taken into consideration when weighing up the options.
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, Equality Act, tribunal claims
Posted in Employment | No Comments »
