Despite reaching an agreement with their industrial partners to retain the opt out from the 48 hour week in return for signing up to an agreement on Agency workers, the European Parliament has declined to accept the UK’s position on the Working Time opt out (see August news below). The amendments passed by the European Parliament still need to gain approval from the European Commission and the Council of the European Union but the UK’s postion with these bodies has been virtually given away now.
The amendments mean that, if passed, there will be a transitional period of 36 months where the UK could still use the opt-out but under more controlled (and of course wasteful and bureaucratic) conditions such as requiring renewal of opt outs by employees every six months. In addition, a right is proposed for workers to request changes to working hours, with employers having to inform workers in good time of any changes they wish to make to working patterns. It is also proposed that the entire period of on-call time will be regarded as working time (reversing the original proposals), although allowing local agreements to specify inactive parts of on-call time (such as care workers and doctors sleeping on the premises) to be discounted from the maximum weekly working time.
The
As reported in May, the agreement between the CBI and TUC
has paved the way for the
¨ Equal treatment for temporary agency workers after 12 weeks employment, compared to permanent workers in terms of basic working and employment conditions (including pay, holidays, working time, rest periods and maternity leave). This does not include Pension provision.
¨ Equal access to collective facilities (such as canteens, child care facilities, or transport services).
¨ Better access for agency workers to training both when working on an assignment, and in between assignments.
The Government is yet to define a timetable but, given their current consideration of putting back the extension of flexible working requests due to the economic climate, it would be surprising now if this much more onerous piece of regulation is brought forward in the next year.
We said at the time how ludicrously complex and punitive the
In addition to their recent concessions on agency staff, the
UK Government have also agreed to a number of restrictions on the
1. No-one will be able opt out of the 48 hours week in their first month of employment
2. There will be an absolute cap of 60 hours per week, averaged over 3 months, even for those opting out of the 48 hour week
3. Inactive (e.g. sleeping in a residential care home or at a hospital) will not count as working time (but it will also not constitute a rest period) This will be welcomed by the Charitable Care sector which has been hard hit financially by the earlier European Court rulings.
Women on additional maternity leave (the 6 months after the 6 months of Ordinary maternity leave) will have all their rights except for remuneration protected in the same way as they are during Ordinary Maternity Leave where their expected date of child birth is on or after 5 October 2008. This means that holiday rights, other non-pay benefits, seniority, pension, company car use will all continue during the whole of maternity absence. These rights will also apply to the nominated mother of an adopted child under the parallel Adoption Leave provisions.
The change follows a European Court case which gave rise to a High Court decision when the Equal Opportunities Commission took the Secretary of State to court for failing to fully implement European law under the Sex Discrimination Act.
Following a review by Imelda Walsh the Government has accepted her proposals for the right to “request” flexible working to be extended to parents of children aged 16 and under and will implement the changes at a date to be announced, probably from April 2009.
The Government is now consulting (www.dius.gov.uk) on its proposals to introduce yet more legal bureaucracy into business in an otherwise relatively well-managed area of work for most employers with its proposals to give all employees similar rights as those for flexible working but with the added burden of learning representatives involvement, formal meetings with rights to be accompanied and written documents and appeals which must meet specified formats. Employers should be strongly responding to this unnecessary piece of new law to at least have it only applied to those employers who do not currently have any internal method of skills assessment. Plans are for the new right to be effective in 2010 if the Government lasts that long.
After years of resistance, the Government and CBI have given way to TUC and EC pressure to give agency workers equal treatment with comparable permanent workers after 12 weeks of employment. The agreement defines equal treatment as 'at least the basic working and employment conditions that would apply to the workers concerned if they had been recruited directly by that undertaking to occupy the same job' with the exception of pension provisions. There will be a form of anti-avoidance measure to deal with workers on repeated short-term contracts (possibly similar to equal treatment regulations for fixed term contract workers. Assuming agreement is reached at EU level, legislation may be included in the next parliamentary session.
In a recent case a 17 year old who was dismissed after just 3 months service for poor performance won a tribunal claim against her employer for age discrimination. During discussions about her performance someone had made a comment about her age being a reason for her lack of experience. To cap it all, the Company, thinking she did not have enough service to claim unfair dismissal, terminated her employment without a formal letter, hearing and appeal taking place. As age discrimination does not require any length of service to claim, she was able to pursue her case. The employer’s failure to carry out the statutory dismissal procedures therefore left them with a 50% uplift in their fine for automatic unfair dismissal.
This is yet another example of just how culturally embedded age bias is and the risks employers face when well-meaning managers inadvertently put their foot in their gobs. Contact us for training support.
After prosecuting many more employers for accidental
breaches of the new immigration rules by employing illegal workers, the
Government has now introduced fines for employers who employ legal ones! Before employing a legal “highly skilled”
immigrant an employer must prove that they cannot fill the post with a resident
worker and must show that the job has
been advertised in the
The Government have introduced a few new rules to make you wonder why you ever employed anyone in the first place. These are:
1. Employers will be liable for harassment (including sexual harassment) of employees by third parties (e.g. the public, local councillors, football fans, hairy-assed builders etc.) where 3 instances have occurred. This applies even where the 3 instances are by different people. To avoid liability employers must show that either:-
¨ They had taken “reasonably practicable steps” to prevent harassment such as making the third parties aware of their stance on harassment, prosecuting serious cases against perpetrators or protecting the employee from the threat (e.g. by a landlord banning a particular customer from a public house)
¨ They were unaware of the acts as the employee had made no complaint
¨ The acts complained of were outside their control (this will be hard to argue in practice unless the first criteria above has been tried)
¨ The acts complained of were trivial or insufficiently serious to create the effect of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive workplace environment.
2. To bring a claim of sexual or sex-related harassment, a claimant had to show that the act was “on the grounds of her/his sex”. This wording has been changed to “related to sex”, lowering the threshold of behaviour which may be actionable and extending the range of people who may bring a claim to include witnesses to harassment as well as sufferers. No doubt the increasing number of people who feel they have a right to be offended about anything will revel in that little addition.
3. There is no longer a requirement for a woman claiming discrimination related to her pregnancy or maternity leave to compare her treatment to that of a man. So long as the treatment (such as denying her extra breaks in the later stages of pregnancy) was related to those factors, a claim can be made.
4. Discretionary bonuses must be made for the first 2 weeks of maternity leave – the so-called ‘compulsory leave’ period.
From today small employers of 50 people or more will be subject to the complicated Information and Consultation Regulations which can be triggered by just 10% of the workforce. Contact us on 01603-632159 to discuss ways to avoid getting hit with the ludicrous bureaucracy associated with these rules.
Under the statutory dismissal procedures, there is a special two-stage (so-called ‘modified’) procedure available to employers where an employee is dismissed “immediately” in a case of gross misconduct. In a recent case the EAT decided that the word ‘immediately’ must be taken literally; the fact that the decision maker had waited until the next day to consult a colleague before dismissing the employee meant that the full 3 stage procedure should have been followed. As a result the dismissal was automatically unfair and the award subjected to an uplift to reflect the employer’s non-compliance.
Its not quite April 1st but I kid you not – this is a true story. In France, a tribunal has awarded overtime pay for working over a 35 hour week to contestants who were taking part in one of those dreadful ‘reality-TV’ shows where people are cast away on a desert island (if only) and voted off by the voyeurs.
New rules apply to the documentation needed for employing
people from outside the EU and
In a recent case a 58 year old was rejected for a job in competition with two forty-somethings. The job ad (for sales) referred to a need for “youthful enthusiasm”. This and the fact that the interviewer had asked about the older applicant’s motivation because of his age, led to a finding of age discrimination against the employer. If you haven’t trained your interviewers in avoiding age bias, you are significantly exposed. Age bias is among the most endemic forms of discrimination and easily applied by the majority of people without conscious intention.
From 1 February 2008, the limit on the amount of a week's pay for the purposes of various statutory payment calculations such as redundancy payments will increase from £310 to £330, significantly ahead of inflation and a near 14% increase in 2 years. Other statutory payments such as unfair dismissal compensation (will be £63000) are to be increased in line with inflation.
The
One of the disparities between the
Minimum annual leave is now 4.6 weeks per annum, inclusive of public holidays. Calculating entitlement during the transition period can be aided by using the Government’s helpful little calculator at www.berr.gov.uk .
Rights to flexible working for adult carers (introduced in April) have now been extended to those who are private foster carers and adopters.
The decision by the Government to again ignore advice and include professional firms in the extended TUPE regulations has already had its expected consequences. A PR representative who dealt 70% of her time on a client’s casework, has been TUPE transferred to the new Agency when the client decided to change his supplier. The tribunal agreed that she was an “organised grouping of employees” and that her work was an “economic entity”. Whilst competence was not an issue in this particular case, it does appear at least possible that if you want to change your lawyer, accountant or architect because you aren’t satisfied with their work you could end up getting that same person or team back with the new supplier. The amount of time they spend on your business will be crucial and this decision may still be overturned by the EAT.
In a classic example of government spin, they have just published the draft legislation to repeal the disastrously expensive and ineffective legislation on statutory dismissal and grievance procedures. In an astonishing display of arrogance they have had the cheek to call it the “Employment Simplification Bill” (not the “sorry we got it totally wrong and cost you a small fortune” bill). In the same week they also extended the legislation which they now intend to repeal into 3 new jurisdictional areas! Left hand, meet the right hand.
Recent tribunal awards indicate that they are taking a very literal line on the complex retirement procedures introduced by the Government – primarily made so complex we cynically believe to convince us all we don’t want a fixed retirement age so that they can at some point in the future abolish it and make it look like they have then done everyone a favour by reducing the administrative burden on business. Whatever the motive, the fact is that you must get it 100% right. If you haven’t already established a clear procedure for retirements and a reliable database of due dates, we suggest you do it now.
MacmIllan Publishers have become the first Company to get a hefty fine by the EAT of £55,000 for failing to install procedures under the Information and Consultation Regulations. The threshold for the law to bite is 100 employees and this will drop to just 50 employees in April 2008. Businesses need to act well in advance to be safe from the dangers of swingeing fines. Had they installed pre-existing agreements prior to the regulations coming into force this fine could not have happened.
In October 2007 the statutory minima for annual leave will rise from 4 weeks to 4.8 weeks and again to 5.6 weeks in April 2009. For normal ‘nine-to-fivers’ this means 24 days instead of 20 and eventually 28 days per annum. Contrary to some speculation the changes do NOT mean that employees have the right to time off on bank holidays, they merely make sure that the original four weeks leave brought in by the regulations cannot be offset by the time already taken by bank and public holidays. This extension is a UK Government measure, nothing to do with the EC Directive on Working Time and more proof that the working time regulations have less to do with safety than they do with social policy.
One thing to check – if your employment contracts use a phrase such as “your bank holiday entitlement is in addition to the minimum statutory leave under the working time regulations”, beware you don’t end up accidentally giving people 8 extra days leave by mistake!
A possible anomaly may have been created by the introduction of the Age Regulations. Restrictive covenants are often written to apply from the point of dismissal or resignation – i.e. the termination of employment and often exclude the contract coming to an end because of retirement. As retirement is now a specific class of dismissal the legal reach of covenants may have been extended by default. Check if you want this.
As has been well publicised a smoking ban comes into force
in all public places from 1 July 2007 in
As predicted back in our 2004 news article (see way below), costs to employers and tribunals have soared since the ill thought out and ludicrously complex statutory discipline and grievance procedures came into force. The Government now propose scrapping them! Their solution – set up another new agency on top of ACAS and issue shedloads more detailed guidance papers (there are already more guidance notes published on H&S and employment law than any human being could read in a lifetime). Groan. What is it with this Government that if there is a simple and easy way to do something (retain some of the broad principles of the law without the micro-detail and beef up ACAS’ role) and a costly and bureaucratic way to do it, they will always choose the latter?
More employee rights become effective this month. Adult carers will now have the right to request flexible working (the time is not long away when everyone will be able to apply I suspect) in the same way as parents of young children. Additional maternity (or adoption) leave will now be available to every mother irrespective of service with her employer. Mothers will also be able to perform up to 10 days work for the Company (called ‘keeping in touch days’) without losing her maternity benefits. Employers will need to decide how to compensate the employee for such periods - beware of sex discrimination rules though.
Finally, just a reminder that the bar has been lowered on the Information and Consultation Regulations to cover employers with more than 100 (previously 150) employees. See earlier news on these rules or contact us for expert advice on this complex piece of law.
Sorry for nicking your catch-phrase Mr Hanson but the latest
case involving Greenwich Council and an agency employee has thrown the
employment law world into disarray. The
EAT have agreed with a tribunal decision that the person concerned was not an
employee of the end user despite long service in the role and have effectively
disagreed with one of the panel in the Court of Appeal decision in Dacas which
caused all the controversy in the first place.
I sometimes think it would be better if judges didn’t make off the
record (obiter) comments as they just seem to serve to strew confusion. Many legal experts, after Dacas, got hung up
on the suggestion that, once an agency employee had been with an organisation
for a year there was no reason why an employment contract should not have
solidified. However they conveniently
forget that another judge in that case said exactly the opposite. In our opinion the recent case brings a heady
breath of common sense to the situation.
If followed by the
As indicated in March, the
Thankfully the
The age regulations are being hailed by the media, along with a lot of misleading silly-season twaddle, as being the biggest change in Employment law for 30 years. Actually this isn’t true as it simply adds another category of discrimination claim to a list which has been growing regularly ever since the second term of Tony Blair’s government. It will however we suspect have the biggest impact on employers and be the single biggest cause of tribunal caseloads. If you haven’t already done so, you should at the very least be doing the following:-
Ø Checking your recruitment procedures to avoid any appearance of bias. Contrary to media reports you do NOT have to remove the date of birth from application forms any more than you have to not ask for first names in case you find out someone’s gender. Training and application of fair procedures is far more important. It is also somewhat insulting, is it not, to tell line managers that they are too unreliable to have this information which the holier-than-thou personnel dept must squirrel away until they can trust them with it?
Ø Updating your equal opportunities and harassment policies.
Ø Arranging training or briefings on them for all staff.
Ø Making absolutely sure you notify all 64 year olds of their retirement dates 6 months before they are due unless you intend to allow people to continue by default.
If you don’t already do so it would be good practice now to start giving formal notice in writing of retirements. The Age Regulations, when in place, will have transition arrangements for anyone whose last day of work is 1 October 2006 or later. You MUST give at least 4 weeks notice or contractual notice, whichever is the longer, or you could face an unfair dismissal claim. You should include a statement explaining that the employee has the right to request to stay on beyond their retirement age, which must be 65 or greater unless a lower age can be objectively justified (not an easy task). You may leave the ‘right to stay on’ statement until after 1 October but it makes little sense to do so.
From today, anyone who has been on a series of two or more consecutive fixed term contracts lasting 4 years or more will be able to claim permanent status unless the employer can justify, on clear objective grounds, why the fixed term status should continue. If an employee writes to the employer to request permanent status the employer must accept it or give reasons why they do not within 21 days of receipt of the request.
The final draft of these regulations, which come into force on 1 October this year, have now been published. These regulations represent the biggest sea change in discrimination law for 30 years and will require a fundamental reorientation of culture and, in many cases, policy and practice as well as the introduction of complicated rules on retirement. Unlike any other discrimination laws, the concept of a protected minority will not exist - a fundamentally different set of dynamics but shoehorned into the existing set of legal constructs. Go to our Employment Law main page for a downloadable checklist on the new laws.
A number of important decisions at European level have stretched the interpretations of the working time rules recently. The main impact of these decisions is that:-
Ø Rest breaks during shifts after 6 hours work will have to be enforced rather than simply made available. Agreements to exclude them, in exchange for an early finish for example, will be unlawful. This is not yet an official Court ruling, just a recommendation to the Court by the Advocate General but, given the ethos behind the decision on the next point, it is likely to be followed.
Ø “Rolled-up” holiday pay is unlawful. Holidays must be paid for when they are taken, not added as a percentage to wages paid during working weeks - a common practice in parts of the building trade and others. 9/6/06 - In another ruling, the ECJ has said that untaken leave may be taken in the following year as long as it is not replaced by a payment.
Ø People employed on live-in arrangements with on-call liabilities will have to be paid for all the hours they are on-call even when they are sleeping. This recent ruling from the EAT extends an earlier decision by the European Court, regarding Doctors sleeping while on duty at hospitals, to live-in home care staff and wardens. The ruling will affect the costs of charities, private care homes and social services considerably. In the case in question, the home manager lived on the premises and worked 4 x 24 shifts with 12 hours each shift where she was required to be available to respond to emergencies. As a result her payable hours of work were extended to 96 hours a week and the national minimum wage applied. The fact that the claimant was able to demonstrate that she was regularly called was important however, so some low acute homes may not be affected.
Under the statutory rules introduced in 2004, employers must respond to any grievance raised in writing by an employee by arranging a meeting, discussing the issue and making a written response and allowing an appeal. Failure to do so can lead to an increase in awards if an employee subsequently wins a case at a tribunal. Most people thought they knew a grievance when they saw it. However the Courts have now decided that even a Solicitor’s letter or a letter of resignation which contains some form of complaint or request can be a grievance. Consequently, all resignation letters should be carefully examined for underlying complaints and a meeting offered to the employee to discuss them, even if they are no longer employed.
Employers familiar with real and fake stress/anxiety related absences will want to take note of changes to the definition of ‘mental impairment’ under the updated Disability Discrimination Act 2005 which comes into force in October. Under the old Act someone claiming to be disabled by reason of a mental health problem had to show that the condition was one which was clinically well recognised. This meant that chronic and manic depressive illnesses would qualify but bouts of general depression, stress or anxiety would not. The removal of this barrier will mean that someone with regular bouts of stress or anxiety related absences could now be classified as disabled. This does not mean that everyone who has such a problem will be classified as disabled - the problem must still be long term (over 12 months) and have a significant impact on their ability to do normal day to day things. So someone with a specific (less than 12 month) stress episode, linked to some particular work or life related cause will not be classified as disabled but someone who is prone to repeated but unconnected events could well be depending on the severity.
Given the increasing risk of liability claims and the HSE’s growing focus on the problem, employers would be well advised to:-
a) Tighten up their return to work procedures to flag up and investigate this kind of absence more carefully
b) Consider regular surveys of the organisation and its employees to identify stressors in the system. Barnes Associates are able to provide confidential stress-tracker surveys linked to the HSE standards in this respect. Contact us at rjb at barnes-assoc.co.uk or info at culturetracker.com for details or call on 01603 632159.
Public sector employers and those who contract significantly with them should note that in 2006, a scheme for disability management in the public sector will be introduced - first indications are that this may require significant changes to management practices and monitoring by employers. More details to follow.
Employers had better take a good look at the draft Age Regs
which have just been published. More red
tape will require employers to write to everyone who is approaching retirement
6-12 months beforehand and get their agreement to retire or handle a request to
extend the date. If later retirement is
accepted, this will then trigger a new requirement to write to them again six
months before the new date. This game of
cat and mouse can then continue ad infinitum.
Employees will also be able to hold back telling employers what they
want to do until just 6 weeks before their expected retirement date. As usual all the responsibilities are on the
employer and very few on the employee.
Coupled with the Government’s plans on time off for carers and fathers,
the regs represent more creeping transfer of former state duties and costs onto
employers. Don’t worry though, according
to the people who dream up cost-benefit figures, it will only cost small
employers £8.50 each and create several thousand new jobs (mostly in
In a recent case, an employer who had first taken on an agency worker for a trial period and then employed her permanently was found to have started her employment contract from day one despite all the documentation pointing to there being no employment contract. The court followed and extended an earlier ruling that a tribunal could look behind the formal contract to see what the real situation was. This meant she had passed 12 months employment at the point of dismissal and could claim unfair dismissal. The situation is getting more confused by the case!
After years of arguing with members of the legal profession
about the legality of ‘blanket’ compromise agreements which purport to deny
parties the right to bring any complaint at all after signing compromise
agreements with a comprehensive list of all possible claims in them, I have
finally been proved right. The Court of
Appeal has decided that only claims which have been contemplated in some
specific form can be so compromised and that the practice of listing every
conceivable claim, whether raised by the employee or not, is of no value in
protecting the employer. (
A recent ruling by the Court of Appeal has said that employers need not pay holiday pay to employees who are on long term sick for a year or more. This appears to go against the wording of the Working Time Regulations but is in the spirit of the purpose of the Directive which was a health and safety measure. It will be interesting to see how far the courts take this since the same issue may be said to be the case in regard to extended maternity absence.
The Court of Appeal has decided that employers may be sued through the civil courts for harassment caused by an employee on a fellow worker. The case involved allegations of bullying against a manager brought under the 1997 Harassment Act. Importantly, unlike normal damages claims, there is no requirement in the 1997 Act for the victim to prove an injury occurred or that the effect was reasonably foreseeable. We consider this to be a bad decision which extends the Act’s influence and the concept of vicarious liability well beyond its original purpose and it is to be hoped that the House of Lords will overturn it.
It has become a common practice when making large scale redundancies involving statutory collective consultation rules, to commence giving notice before the completion of consultation. In a German case (Junk v Wolfgang Kühnel), the European Court has declared (despite representations to the contrary by the UK government) that it is a breach of the Collective Redundancies Directive to commence giving anyone notice until consultation has been completed; this means at least not before the statutory minimum 30 or 90 day period has expired. The current DTI guidance that “the individual periods of notice may run concurrently with the statutory consultation period” will need to be revised to take account of this decision.
The government has recently pinned its flag to the mast of further “family-friendly” policy developments. Firstly when age discrimination protection comes into force from 2006, the Government has decided to ban fixed retirement ages of less than 65 unless the employer can show clear justification. It has abandoned, or at least postponed, its preferred option of outlawing fixed retirement ages altogether in favour of a requirement on employers to consider applications from workers approaching 65 to stay on. The burden of refusal will be similar to that for employees requesting flexible working for family reasons.
In his budget speech the Chancellor also gave notice of an intention to move toward one year’s paid maternity leave from the present 6 months by extending it to nine months from April 2007. The ability to transfer part of the entitlement to the father will also be introduced. It remains to be seen how this will operate in practice since employers could be faced with very short notice of a father taking leave, unlike a pregnant worker or someone applying for adoption where the lead time for employers is usually of a reasonable period.
Happy New Year to everyone. The Information Commissioner (George Orwell could hardly have created a more gloomy title!) has issued part 4 of the enormous code of practice (almost 300 pages long now including supplements) on data protection. This final part covers the management of workers’ health records. The guidance advises employers to keep absence records separate from injury or illness records as the latter are regarded as “sensitive data” under the Act. Most employers will be quite within their rights to use health information for legitimate employment-related reasons as in most cases there will be legal requirements for the data to be kept, such as complying with health and safety laws, unfair dismissal and disability discrimination protection. However, the Commissioner advises extra levels of security protection for manual health records. Employers who simply file medical reports and sickness certificates with the employee’s staff file, unless the file is securely controlled, could find themselves breaching the code. The code specifically advises against the publication of “league tables” of absence records.
If you missed our seminars, we can still provide in-house
business briefings for your Directors.
Organisations with over 150 employees may only have until April 2005 to
act to protect themselves from the punitive and
legally-shackled standard framework.
Many existing arrangements may not hold water. If you are unsure what these regulations may
mean for you, ring
¨ Statutory discipline, dismissal and grievance procedures come into force. Failure to follow them (by employees as well as the employer) could lead to a finding of automatic unfair dismissal or a refusal to hear the case by Employment Tribunals. Awards may be increased or reduced by + or - 50%. The aim is to reduce unnecessary tribunal claims but the way the regulations have been drafted make it quite likely to have the opposite effect Either way, it will certainly increase the amount of appeals and grievances employers will have to manage, as employees seek to ensure they protect their right of access to tribunals. In a redundancy exercise for example it is quite possible that all employees will be advised to make appeals just to protect any future claims which may or may not arise, potentially doubling the management time required.
¨ Significant changes to the Disability Discrimination Act have been made. There is no longer a small employers exemption and the requirements to make reasonable adjustments have been tightened.
¨ The quagmire of admin that Unions had to follow for strike votes and recognition has been eased and the protection from dismissal for “official” strikers has been extended from 8 to 12 weeks, excluding lock outs. Actual implementation dates will vary.
¨ ACAS now has an arbitration scheme for disputes over Flexible Working and has issued a new code of practice on discipline and grievances to coincide with the new statutory framework.
From Stealth tax to Stealth-fare?
The Government has indicated that more regulation is on the way on family rights (e.g. time off for carers), disability and age discrimination protection, and pensions in particular, despite having introduced more employee rights in the last 5 years than previous Governments had initiated in the last 30. Well at least it keeps some of us in work! There is a sneaking suspicion however that the underpinning thrust of the Government’s plans is to move the costs of welfare support gradually from the State onto employers.
Have you checked over your discipline and dismissal procedures (DDPs) to make sure they comply with the new regulations which come into force in October? All dismissals (including individual redundancies not covered by collective redundancy consultation) or serious disciplinary action must follow 3 steps - written notice, meeting and appeal. Summary dismissals must have two steps - reason for dismissal and appeal. If your existing practices are more beneficial to the employee, that’s fine. You must also have grievance procedures in place with similar rights of information, meetings and appeals.
In a recent decision, the Court of Appeal ruled that an employer who had placed a disabled employee on half pay under the terms of their sick pay scheme after she had been off sick for 6 months had acted unlawfully. The employer had a duty to make reasonable adjustments to its sick pay policy and had breached that duty by failing to do so. A reasonable adjustment, the Court said, would have been to have placed her on full pay during the entire period of her disability-related absence.
Employers may need to urgently review their sick pay schemes in the light of this judgement.
People may have missed this but in the small print of the last employment act, an automatic “fine” of just over £1000 (4 weeks “capped” pay) was added to the requirement for all employees to be issued with a formal Statement of Particulars of Employment (SPE) as required by section 1 of the Employment Rights Act. Anyone appearing before a tribunal for any reason will be entitled to this if they have had no SPE, irrespective of whether their primary claim is successful. Previously there was no punishment for employers who failed to follow the section 1 requirement.
Are your records up to date? Does your SPE format fully meet the Act’s requirements? Give us a call on 01603 632159 or e-mail rjb at barnes-assoc.co.uk if you need help - we can conduct a full contract and employment law compliance audit for you at minimal cost as well as help you set up automated systems to issue these documents consistently.
Recent case law means that organisations using agency staff
may find themselves with responsibilities for unfair dismissal and other
rights. The courts have ruled there is
no reason in principle why an agency worker assigned to an organisation cannot
be regarded in law as an employee of that organisation for the duration of the
placement. This can be avoided with
careful structuring of the contract with the agency and the way the agency
worker is managed. If you are worried
about how your contracts are set up, talk to
Last updated:17 July 2008