Employment Law Articles – Spring 2008


Amendments to the Sex Discrimination Act
Last year, the former Equal Opportunities Commission brought judicial review proceedings against the Government regarding some of the provisions of the Employment Equality (Sex Discrimination) Regulations 2005, which made amendments to the Sex Discrimination Act 1975 (SDA) in order to implement the Equal Treatment (Amendment) Directive. The Court judged that the Regulations did not fully implement the Directive and so the Government was required to make amendments to the SDA with regard to pregnancy and maternity leave, discrimination and harassment.
The Sex Discrimination Act 1975 (Amendment) Regulations 2008, which make these changes to the SDA, came into force on 6 April 2008. 
Specifically, the definition of sexual harassment has been expanded to include unwanted conduct that is ‘related to her sex or that of another person’. The change will enable a claim to be made by someone who is not the subject of the unwanted conduct but where its effect is to violate that person’s dignity or to create an intimidating environment for them.
As regards an employer’s liability for the harassment of employees by a third party, it becomes unlawful for an employer to fail to take reasonably practicable steps to protect an employee from harassment by a third party where such harassment is known to have occurred on at least two other occasions. The person responsible for the harassment does not have to be the same on each occasion.
Changes regarding pregnancy and maternity are the removal of the requirement for a comparator who is not pregnant or not on maternity leave, when a woman brings a claim for discrimination on these grounds and there must also be no difference between the contractual benefits allowed to women who are on compulsory, ordinary or additional maternity leave.
The changes that the Government is required to make to the SDA relating to terms and conditions during maternity leave will apply to employees whose expected week of childbirth begins on or after 5 October 2008. This will provide time for businesses to prepare for these changes.
For advice on making sure your policies and procedures take account of these changes, please contact <<CONTACT DETAILS>>.
Annual Increase in Tribunal Awards
The Employment Rights (Increase of Limits) Order 2007, which details the annual inflation-linked increase in limits on the amounts which can be awarded by employment tribunals, was made on 18 December 2007 and applies where the appropriate date falls on or after 1 February 2008.
The main increases in compensation limits are:
  • the maximum compensatory award for unfair dismissal has increased from £60,600 to £63,000;
  • the maximum amount for a week’s pay (for calculating basic award or redundancy payment) has increased from £310 to £330; and
  • the limit on the amount of guarantee payment payable to an employee in respect of any day has increased from £19.60 to £20.40.
As there is no statutory cap on the amount a tribunal can award in discrimination cases, the Order does not cover them.
The full list of the increases can be found in the Schedule to the Order at http://www.opsi.gov.uk/si/si2007/uksi_20073570_en_2.
The general tribunal system in the UK is being reformed, under the Tribunals, Courts and Enforcement Act 2007. Since 1 December 2007, tribunal chairmen have been called ‘employment judges’ as this more accurately reflects the nature of their role.
Associated Discrimination – Advocate General’s Opinion
The Advocate General has handed down his opinion in the case of Attridge Law v Coleman. The case concerns the interpretation of the EU Equal Treatment Framework Directive and its impact on disability discrimination legislation in the UK.  
Sharon Coleman brought a claim of disability discrimination and constructive dismissal against her ex-employer on the grounds that she had been discriminated against because of her son’s disability. Amongst her claims of unfair treatment were that she was not permitted to work from home, even though other employees were allowed to do so to care for non-disabled children, and that she was placed in a pool of staff selected for redundancy after she said that she intended to make a formal request for flexible working in order to care for her son. Ms Coleman claimed that her employer’s actions had created a hostile environment which forced her to resign.
Section 3A(5) of the Disability Discrimination Act 1995 (DDA) is worded such that a person who is not disabled but who is discriminated against because of another person’s disability cannot bring a claim. It would not appear, therefore, to protect someone caring for a disabled person. Ms Coleman argued that the Equal Treatment Framework Directive does give protection from unfair treatment which arises out of association with a disabled person. The Employment Tribunal referred the question to the European Court of Justice (ECJ) in order to establish whether the UK law properly implements the Directive.
The Advocate General’s opinion is that such discrimination is prohibited under the Directive. He said, “One way of undermining the dignity and autonomy of people who belong to a certain group is to target not them, but third persons who are closely associated with them.” In his view, to be protected by the Directive it is not necessary for someone who is the object of discrimination to have been mistreated on account of their disability. It is enough that they were mistreated on account of disability. Therefore, if Mrs Coleman can prove that she suffered less favourable treatment than other members of staff because of her son’s disability, she should be able to rely on the Directive.
The Advocate General’s opinion is not binding on the ECJ but it is followed in 80 per cent of cases. If the Court does support his decision, it will apply to UK laws on discrimination on other grounds, for example age discrimination, and may require amendments to domestic legislation to make it compatible with EU law.
The ECJ’s decision is expected in May 2008.
Collective Redundancy Consultation – Protective Awards
If an employer is proposing to make redundant 20 or more employees at one establishment within a period of 90 days, the collective consultation provisions of Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) come into play. Where the employer is proposing to dismiss 100 or more employees, the consultation period must be at least 90 days; otherwise it must be at least 30 days. Failure to consult with the appropriate representatives of affected employees can lead to a protective award requiring the employer to pay each affected employee 90 days’ pay.
In Evans, Motture and Hutchins v Permacell Finesse Ltd., the Employment Appeal Tribunal (EAT) considered the amount of the award payable when there has been a failure to follow the collective consultation provisions.
Mr Hutchins worked for Permacell Finesse Ltd. as a supervisor. He was one of approximately 77 employees that the company proposed to make redundant during a 90 day period, thus triggering an obligation to consult for a minimum of 30 days. However, Permacell made no provision for the election of employee representatives and was therefore unable to consult them. Several employees brought claims for a protective award on account of this failure.
The Employment Tribunal (ET) found that there had been a serious failure to comply with the consultation requirements, with no evidence of any mitigating factors. However, it considered that the breach did not have as great an adverse effect as would have been the case if 100 or more employees had been deprived of a minimum of 90 days consultation and so the sanction should be a 30 day protective award, which amounted to Mr Hutchinson being awarded £2,742.
The level of the award was the subject of an appeal to the EAT, which took as its starting point the judgment in the 2004 case of Susie Radin Ltd. v GMB and Others. This offered guidance on what matters the ET should take into account when determining the level of the protective award and made it clear that the purpose of the award is to punish the employer for breach of its obligations under Section 188 of TULRCA, rather than to compensate the employee for any loss, and that a proper approach where there has been no consultation is to start with the maximum period and to then reduce it only if there are mitigating circumstances. The EAT stated that there is now no specific link between the consultation period and the protected period.
The EAT also referred to the recent case of UK Coal Mining Ltd. v NUM in which the EAT held that protective awards of the maximum 90 days were correct for a serious breach of the statutory requirements on the part of the employer. The limited consultation that had taken place did not mitigate the seriousness of the conduct.
The EAT held that a serious breach of the collective consultation requirements must put the protective award near the maximum payable. The ET had made an error of law. It should have started at 90 days and worked downwards if there were mitigating factors. In this case, however, there was no evidence of mitigating or special circumstances so the EAT substituted a protective award of 90 days.
Says <<CONTACT DETAILS>>, “This case serves as a further reminder to employers of the potentially serious financial consequences of failing to consult when making collective redundancies. Even if the obligation to consult is for a minimum 30 day period, a serious breach of the requirement can result in employees being granted a 90 day protective award.”
Court of Appeal Rules on the Employment Status of Agency Workers
Under the Employment Rights Act 1996, protection against unfair dismissal is only afforded to employees. For this reason, the exact employment status of an agency worker is often at issue in the courts.
The Court of Appeal has handed down its judgment in James v Greenwich Council, which dealt with the employment status of a worker involved in a triangular agency relationship. A number of similar cases had been put on hold pending this decision and it was hoped that it would give guidance on what many see as conflicting authorities on this issue. However, the Court of Appeal saw no conflict in the earlier decisions and upheld the ruling of the Employment Appeal Tribunal (EAT) that the agency worker in this case was not the employee of the end user.
Ms James worked full time for Greenwich Council until 1997, providing support work in the Council’s Asylum Seeker’s Team. She stopped working for a while, but then started working for the Council again through an employment agency.
In 2003, she switched to an agency which paid a better hourly rate. There was no contract directly between Ms James and the Council. However, she had signed a ‘Temporary Worker Agreement’, which set out the terms of her agreement with the agency. This provided, amongst other things, that she contracted with the agency in the capacity of a self-employed worker in relation to each assignment and that the terms constituted a contract of services and would not give rise to a contract of employment either between the agency and the temporary worker or between the worker and the client. A second agreement, made between the agency and the Council, provided that the worker would be under the supervision, direction and control of the Council but that the agency assumed responsibility for the worker’s remuneration and for the deduction and payment of PAYE and NICs.
Ms James was off sick in August and most of September 2004 and was replaced by another agency worker in her absence. When she returned to work, she was told she was no longer required.
Ms James claimed that she had been unfairly dismissed, arguing that she had an implied contract of employment, given that she had worked for the Council for a number of years and had been treated in the same way as a permanent employee.
The Employment Tribunal (ET) found that there was no contractual obligation between the Council and Ms James and that there was no implied contract of employment. She could not therefore claim unfair dismissal. The EAT upheld the ET’s decision on the ground that Ms James’s appeal raised no question of law. She did not have an implied contract with the Council as no mutuality of obligation existed. In reaching its conclusion, the EAT observed that the mere passage of time was not sufficient to establish any mutual undertaking of legal obligations between the worker and end user. The Court of Appeal agreed and dismissed Ms James’s appeal. A contract of employment between an end user and an agency worker should only be implied where this is necessary to give business reality to the relationship between the parties. This was not necessary in this case as the work done could be explained by the existing contracts.
The Court went on to say that the courts and tribunals are ‘builders of the law’, not ‘architects of economic and social policy’ and must ‘operate within the legal architecture created by others’. Unless Parliament decides to change the current law, Tribunals must continue to apply the principles of the law of contract to the wide spectrum of factual situations that arise.
Contact <<CONTACT DETAILS>> if you would like assistance in reviewing your temporary or permanent staff agreements.
Definition of Disability: Is it ‘Likely to Recur’?
For the purposes of the Disability Discrimination Act 1995 (DDA), someone has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. If an impairment ceases to have such an effect, it is to be treated as having that effect if it is likely to recur.
In Richmond Adult Community College v McDougall, the Court of Appeal examined what evidence can be taken into account by the Employment Tribunal (ET) when deciding whether or not an employee does have a disability that is likely to recur.
Ms McDougall had a history of mental illness. Between 1 November 2001 and 25 February 2002 she was detained in hospital under the Mental Health Act 1983, but had not suffered a recurrence of her illness for the three years prior to applying for a job with Richmond Adult Community College. She was offered the post subject to satisfactory medical clearance but the job offer was withdrawn on the basis that the health report had not cleared her as being fit for work. Ms McDougall claimed that the withdrawal of the job offer was disability discrimination. Before her claim was heard, she suffered a relapse of her illness and was again admitted to hospital under the Mental Health Act in December 2005.
The ET found no evidence that a recurrence of Ms McDougall’s disorder was likely at the time the alleged disability discrimination took place. In its view, she had not demonstrated that the mental impairment had a substantial long-term effect and her health problems did not therefore amount to a disability under the DDA.
However, the Employment Appeal Tribunal (EAT) reversed this decision. In its view, when determining whether an impairment is likely to recur for the purposes of the assessment of disability under the DDA, it is relevant to consider not only evidence existing at the time of the alleged discrimination but also any events occurring up to and including the date of the Tribunal hearing. It was therefore relevant to take into account that Ms McDougall had been committed to hospital again. The EAT went on to say, ‘It is unattractive and possibly inoperable for Employment Tribunals to be expected to ignore the reality of what has occurred so as to found a judgment on what might have occurred’.
The Court of Appeal ruled on what it considered to be a question of the correct interpretation of the law. The decision of an employer which may form the basis of a discrimination claim is made on the evidence available at that time. In the Court’s view, the ET should make its judgment as to whether unlawful discrimination on the part of the employer has been established on the basis of evidence as to circumstances prevailing at the time of the employer’s decision. Subsequent events should not be taken into account. In short, ‘the statute requires a prophecy to be made. It does not permit recourse to evidence as to subsequent events’.
Says <<CONTACT DETAILS>>, “This issue has been considered in several cases before the EAT, with differing outcomes, and so this decision of the Court of Appeal is a welcome clarification of the law. However, employers should always take care when making employment decisions affecting a person with a history of illness. We can advise you to ensure that your actions do not lay you open to a claim of unlawful disability discrimination.”
Director Given Community Service After Construction Worker Dies
A company director has been given 100 hours’ Community Service and ordered to pay £6,000 costs, following the death of a construction worker.
Norman Ellis, director of Q Homes (Yorkshire) Ltd., pleaded guilty to a charge under the Health and Safety at Work etc. Act 1974 that the company had failed to discharge its duty to ensure, so far as is reasonably practicable, the health, safety and welfare of an employee, Andrew Bridges.
Mr Ellis and Mr Bridges were demolishing a 2.5 tonne reinforced concrete roof when the structure collapsed, crushing Mr Bridges. The Health and Safety Executive (HSE) Inspector investigating the case called it ‘a tragic accident, made worse by the fact that it could have easily been prevented had the work been properly planned’.
The Court found that the way in which the work was carried out represented very serious failings on the part of Mr Ellis, who was responsible for planning and carrying out the work. In its view, the offence was sufficiently serious to warrant imposing a Community Order.
HSE statistics show that 2.2 million people work in Britain’s construction industry, making it the country’s biggest industry. It is also one of the most dangerous. Last year, there were 77 deaths – 32 per cent of worker fatalities in British industries. Many of these accidents could have been prevented had proper risk assessments been carried out and the work been planned accordingly. The HSE stresses that it will take enforcement action against those who fail to carry out their legal responsibilities with regard to health and safety at work.
For further information on health and safety in the construction industry, see http://www.hse.gov.uk/pubns/conindex.htm.
The Corporate Manslaughter and Corporate Homicide Act 2007 is due to come into force on 6 April 2008. This will create an offence of corporate manslaughter and will allow organisations to be prosecuted for management failures that lead to the deaths of employees and others.
Employing Illegal Migrant Workers
New measures designed to tackle illegal migrant working came into force on 29 February 2008. These measures, contained in the Immigration, Asylum and Nationality Act 2006, include:
  • a system of civil penalties for employers who employ illegal migrant workers – the maximum civil penalty per illegal worker is £10,000;
  • a new criminal offence for employers who knowingly employ illegal migrant workers – this offence now carries a maximum two year prison sentence and/or an unlimited fine; and
  • a continuing responsibility for employers of migrant workers with a time-limited immigration status to check their ongoing entitlement to work in the UK.
The new measures do not significantly alter employers' responsibilities. Employers were already required to check a prospective employee’s right to work in the UK in order to establish a defence against conviction for employing an illegal migrant worker. Under the new measures, employers can obtain a statutory excuse from payment of a civil penalty if they have carried out the required checks on a prospective employee’s documents. In addition, employers are required to undertake repeat document checks, at least once a year, for those employees who have limited leave to enter or remain in the UK, if they are to retain the statutory excuse. However, the excuse will not apply where an employer knowingly employs an illegal migrant worker.
A code of practice is now available containing guidance on the civil penalties for employers. This contains information on how the level of penalty may be determined and on the documents required for the purpose of establishing the statutory excuse. It can be found on the website of the Border and Immigration Agency at http://www.bia.homeoffice.gov.uk/.
Equal Pay Claims and Statutory Grievance Procedures
Equal pay claims have been much in the news lately with many councils facing the threat of legal action by trade unions on behalf of low-paid female workers not being paid the same rates as men performing similar jobs. The Equal Pay Act 1970 makes it unlawful for an employer to discriminate between men and women in terms of their pay and conditions where they are doing the same or similar work, work rated as equivalent or work of equal value.
If a woman’s employment contract does not specifically include an equality clause, it is automatically deemed to include one. If a woman brings a claim for breach of that equality clause, a comparison must be made between the terms of the woman’s own contract and the terms of some other person's contract – ‘the comparator’. The comparator must be a male employee doing the same or similar work, work rated as equivalent or work of equal value. Choosing the right comparator is very important when bringing an equal pay claim.
Under Section 32 of the Employment Act 2002, before an employee can present an equal pay complaint to the Employment Tribunal (ET), they must first set out their grievance in writing for their employer in order to try to resolve the dispute under the statutory scheme.
The Employment Appeal Tribunal (EAT) has ruled (The Highland Council v GWU/Unison and Others) that the exercise of comparison is so fundamental to an equal pay complaint that there must be some specification of the comparator, at least by reference to job or job type, in the grievance document. It does not give the employer sufficient information merely to state that an equal pay claim is being made. Furthermore, the comparator used when making an equal pay claim to the ET must not be materially different from that used when the grievance was raised, otherwise the ET will have no jurisdiction to hear the claim. In this case there were variations between the comparators identified at stage 1 of the standard grievance procedure and those subsequently identified on the ET1 forms submitted. The EAT therefore held that the ET should carry out a qualitative assessment to see if the comparators included on the forms ET1 were materially different from the comparators identified in the grievances.
The EAT went on to advise what an employee should do in the event that they find a better comparator after having already raised a grievance. The action necessary will depend on how far the complaint has progressed. It may involve raising a new grievance, which could be dealt with in tandem with the original grievance. If Tribunal proceedings have already commenced, the claimant can seek permission to amend their existing claim. If permission is not granted, it is open to the claimant to start again by raising a fresh grievance. If the statutory grievance procedures fail to resolve the issue, a fresh claim can then be presented to the ET.
Expired Disciplinary Warnings and Unfair Dismissal
The Court of Appeal has overturned the decision of the Employment Tribunal (ET), upheld by the Employment Appeal Tribunal (EAT), that an employee was unfairly dismissed because his employer had taken account of an expired disciplinary warning when deciding to dismiss him (Airbus UK Ltd. v Webb).
Mr Webb worked for Airbus as an aircraft fitter. In July 2004 he was dismissed for gross misconduct after he was found washing his car when he should have been working. He appealed against the decision to dismiss him and the disciplinary action was reduced to the lesser sanction of a final written warning which would remain on his record for 12 months.
Three weeks after the written warning expired, Mr Webb and four other employees were caught in the locker area, watching television, outside their normal break time. All five were found guilty of gross misconduct and were therefore liable to dismissal. Mr Webb was dismissed but for the other four employees the usual penalty of dismissal was mitigated because they had no prior disciplinary record and they were instead given final warnings.
Mr Webb claimed that he had been unfairly dismissed. The ET took into account the decision of the Scottish Court of Session in Diosynth Ltd. v Thomson (Diosynth) in which the Court had ruled that the employee was entitled to assume that a disciplinary warning meant what it said and that it would cease to have any effect after the specified time limit. As Mr Webb would not have been dismissed had he not been given a previous warning, the ET held that it was bound by authority to find that his dismissal was unfair.
Airbus appealed against the ET’s decision and lost. However, the EAT confessed to having some difficulty in deciding whether or not the ET is obliged to ignore past warnings that have expired, but judged on balance that it is.
On appeal, the Court of Appeal held that Diosynth is not authority for the general proposition of law that misconduct for which a final warning was given that has expired can never be taken into account by the employer when deciding to dismiss an employee or by the ET when deciding whether or not that decision was reasonable. All the circumstances of the decision to dismiss should be taken into account when determining whether it is fair under the Employment Rights Act 1996 S.98(4).
In the Court’s view, there was a significant distinction between the facts in Diosynth and those in the present case. In Diosynth, the expired warning was the principal reason for the dismissal. The other factors would not of themselves have justified the action. However, the reason for Mr Webb’s dismissal was that he was guilty of gross misconduct on the second occasion, not that he had received a warning for his conduct in July 2004. He was dismissed on account of repeated misconduct, having already received the lesser penalty of a final warning on the previous occasion. The absence of previous misconduct on the part of the other four employees was a reason for imposing a lesser penalty on them. The EAT ought therefore to have allowed Airbus’s appeal.
Says <<CONTACT DETAILS>>, “It is important to ensure that the time limits for disciplinary warnings fit the particular situation and that your policies and procedural rules allow you flexibility to deal with exceptional circumstances. Where an expired disciplinary warning is taken into account when deciding whether or not to dismiss an employee, it should not be the principal reason that tips the balance in favour of dismissal.”
Extra Funding to Aid Workplace Disputes
The Secretary of State for the Department of Business, Enterprise and Regulatory Reform has announced that the Government will be awarding up to £37 million in extra funding to the Advisory, Conciliation and Arbitration Service (ACAS), to help settle workplace disputes without the need for a claim to the Employment Tribunal (ET).
These changes complement provisions made in the Employment Bill 2007/2008, which will repeal the statutory disciplinary and grievance procedures. The aim is to deliver speedier decisions on more straightforward claims through the use of less rigid procedures. Estimates show that this approach could save businesses more than £175 million a year. The Bill also proposes to remove fixed periods for conciliation after a claim is made to the ET, enabling ACAS to get involved at any time until the ET reaches its verdict.
The extra funding will be spread over three years and is part of a package of measures designed to simplify the dispute resolution system. It will allow ACAS to boost its helpline and advice services and offer help at any stage of a dispute.
Over the next year, ACAS will conduct pilot programmes to conciliate disputes that look likely to result in a claim to the ET, with the aim of making this service available throughout the UK in 2009.
Gay Youth Worker – Compensation Award
Following a Remedy Hearing of the Cardiff Employment Tribunal (ET), the Diocese of Hereford has been ordered to pay £47,345 in compensation to youth worker, John Reaney. Mr Reaney, who is gay, won his claim of discrimination under the Employment Equality (Sexual Orientation) Regulations 2003.
Mr Reaney’s appointment to the post of Diocesan Youth Officer was blocked by the Bishop of Hereford, the Rt Rev Anthony Priddis, in 2006. Mr Reaney had considerable experience as a youth worker and was by far the best candidate for the job. He had given an assurance that he would remain celibate whilst working in the post. However, as Mr Reaney had only recently ended a relationship, the Bishop did not think that he was capable, at that time, of making a promise that he would not enter into another one in the future. He was therefore not satisfied that Mr Reaney met the requirements of the employment. 
The Employment Tribunal (ET) judged that as Mr Reaney had given his assurances on the celibacy issue, it was not reasonable for the Bishop to conclude that this requirement of the post had not been met. In an ordinary employment context, a potential applicant for a job cannot give ‘cast iron guarantees as to circumstances which may happen in the future’.
The compensation award includes £25,000 for future loss of wages, £8,000 for future pension loss, £7,000 damages for psychiatric injury and £6,000 for injury to feelings. The ET heard last June that the Bishop had subjected Mr Reaney to an embarrassing and humiliating cross-examination concerning his private life which a heterosexual person would not have been made to endure.

Illegal Working and Unfair Dismissal
A case heard by the Court of Appeal (Klusova v London Borough of Hounslow) illustrates the difficulties that an employer can encounter when trying to avoid contravening the immigration legislation. Ms Klusova, a Russian national, had leave to remain and work in the UK until May 2004. In November 2000, she began working for Hounslow Council. In March and May 2004 she applied to the Home Office for further leave to remain but both applications were refused. However, the May application was not actually dealt with until a formal refusal letter was sent to Ms Klusova at the end of 2005. When a worker applies before the expiry of their permit for an extension to their right to remain, permission to do so continues until the request has been dealt with.
Hounslow Council received contradictory advice from the Home Office but was told that Ms Klusova was an ‘overstayer’. Ms Klusova maintained that she had applied for an extension but did not provide satisfactory evidence to this effect. Believing that continuing to employ her would contravene the Asylum and Immigration Act 1996, the Council dismissed her in August 2005. It did not follow the normal statutory dismissal procedures as it believed these did not apply when the dismissal was for breach of a statutory restriction. As it turned out, the Council was mistaken in its belief that continuing to employ Ms Klusova was an offence under the immigration legislation. Ms Klusova brought a claim for unfair dismissal.
The Court of Appeal found that the Council’s mistaken belief that Ms Klusova’s employment was unlawful was not sufficient for it to justify her summary dismissal. The employment must actually be unlawful for such justification to be relied on. However, given that the Council had received conflicting advice and had genuinely believed it could not lawfully continue to employ Ms Klusova, her dismissal was potentially fair for ‘some other substantial reason’. Unfortunately for the Council, however, the statutory dismissal procedures do apply in these circumstances. As the Council had failed to follow the procedures, Ms Klusova’s dismissal was automatically unfair.
The case was remitted back to the Employment Tribunal to determine the appropriate compensation.
Says <<CONTACT DETAILS>>, “In circumstances such as this, where there is a genuine belief that an employee is working illegally but an absence of proof, it would seem that the safer way to proceed would be to dismiss the employee for some other substantial reason. However, unless the statutory dismissal procedures are followed, such a dismissal will be automatically unfair if it then turns out that the worker does in fact have permission to remain.”
In Brief
Statutory Maternity, Adoption and Paternity Pay Increases
The standard weekly rate of Statutory Maternity Pay, Statutory Adoption Pay and Statutory Paternity Pay increased from £112.75to £117.18 from 6 April 2008. The daily rate is therefore £16.74 exactly.
Statutory Sick Pay – Rate Increase
From 6 April 2008 the rate of Statutory Sick Pay (SSP) increased from £72.55 to £75.40 per week.
For information on SSP and how it operates, see http://www.dwp.gov.uk/lifeevent/benefits/statutory_sick_pay.asp.
The Social Security Benefits Up-rating Order 2008, providing for increases in Social Security benefits for 2008/2009 can be found at http://www.opsi.gov.uk/si/si2008/uksi_20080632_en_1.
In Brief
New Minimum Wage Rates Announced

The Government has announced increases in the national minimum wage rates in line with the recommendations of the Low Pay Commission. These will apply from October 2008.

The adult national minimum wage will rise from £5.52 to £5.73 an hour. The minimum rate for 18- to 21-year-olds will increase from £4.60 to £4.77 an hour and for 16- to 17-year-olds the rate will be £3.53 an hour instead of £3.40.

The Government has also boosted the funding available for enforcement of the national minimum wage legislation and the Employment Bill currently before Parliament aims to deter non-compliance by introducing tough new penalties for rogue employers who underpay staff.
Informing and Consulting Employees – Be Prepared
The EU Information and Consultation Directive 2002 establishes minimum requirements for consulting and informing employees on a wide variety of subjects. The Information and Consultation of Employees Regulations 2004 implement the Directive in the UK.
From 6 April 2008, the Regulations apply to public and private undertakings that carry out an economic activity where there are more than 50 employees. The undertaking does not have to be operating for gain.
The requirement to inform and consult employees does not operate automatically. It is triggered either where a valid written request to agree consultation arrangements is made by 10 per cent of the employees (subject to a minimum of 15 employees) or if the employer chooses to start the process.
Employers must initiate negotiations for an agreement no later than three months after a valid request is received and have six months from the date of the written request to reach a negotiated agreement. An agreement must establish how the employer will inform and consult employees or their representatives on an ongoing basis but the legislation does allow the flexibility to agree consultation arrangements which suit the individual needs of the undertaking.
Where no agreement is reached, standard information and consultation provisions will apply giving employees the right to information and consultation as set out in the original Directive. These give employees the right to:
  • information on the recent and probable development of the undertaking or establishment’s activities and economic situation;
  • information and consultation on the situation, structure and probable development of employment within the undertaking and on any measures likely to be taken, particularly with regard to any threat to employment; and
  • information on decisions likely to lead to substantial changes in work organisation or in contractual relations, including collective redundancies and business transfers (as defined in the relevant legislation).
Information must be given at an appropriate time and in an appropriate way so that representatives of the workforce are able to conduct an adequate study and, where necessary, prepare for consultation. In other words, it is not merely a matter of involving staff in discussions as to how best to implement decisions that the management has already taken.
The consultation will have to take place at the relevant level on both sides, which will vary with the nature and severity of the matter being discussed.
Employers who have already established procedures for informing and consulting with employees can satisfy the requirements of the Regulations if they gain the agreement of their employees to carry on existing good practice. If a valid employee request is made in such circumstances, the employer has the option of organising a ballot of all employees. If at least 40 per cent of employees and a majority of those taking part in the vote endorse the initial request, the employer is obliged to negotiate a new agreement. Existing arrangements will be considered suitable if they:
  • are in writing;
  • cover all employees of the undertaking;
  • have been approved by the employees; and
  • set out how the employer is to give information to employees or their representatives and seek their views on it.
The Regulations allow employers to restrict information on grounds of confidentiality if it is in the legitimate interest of the business to do so. Also, they are not required to disclose information to representatives where this would be prejudicial to or seriously harm the functioning of the undertaking.
Employers who fail to comply with the Regulations could face a fine of up to £75,000.
Guidance for employers can be found on the website of the Advisory, Conciliation and Arbitration Service at http://www.acas.org.uk/index.aspx?articleid=338.
Clearly, these changes could have a far-reaching impact on the way many employers operate. If you receive a request for information and consultation arrangements to be put in place or you wish to initiate the process, <<CONTACT DETAILS>> can advise you.
Lesbian Soldier Wins Discrimination Claim
A lesbian soldier has won her claim against the Ministry of Defence for sex discrimination and discrimination on the grounds of sexual orientation which caused her to give up her career in the army.
Leeds Employment Tribunal heard that Kerry Fletcher, 31, was subjected to unwanted advances made by a male sergeant who asked her to join in group sex and sent her a text message saying, “Look, I might be able to convert you. You don’t know what you are missing.” When she spurned his advances, he and other male colleagues tried to ruin her career. After she made an official complaint, her car was damaged on more than one occasion. As a result, Miss Fletcher was signed off sick after having served 10 years in the Army.
Miss Fletcher’s claim for compensation of over £400,000 is based on injury to her feelings in addition to the wages she would have received had she stayed in the Army for a further 12 years, which was her stated intention before the incidents took place.
A remedy hearing will now take place to determine the level of any compensation award.
“There is no upper limit to the compensation that can be awarded in discrimination cases,” says <<CONTACT DETAILS>>. “Employers should take any complaint of victimisation, harassment or bullying seriously and take steps to change a workplace culture in which stereotypical and discriminatory opinions are tolerated. We can assist you in implementing discrimination and workplace bullying policies specifically tailored to meet the needs of your business.”
Manual Handling
The Health and Safety Executive (HSE) has reminded employers of their legal duties with regard to manual handling, after an employee was injured when a 50kg sack of basmati rice fell onto the back of his neck.
The man’s employer, East End Foods plc, pleaded guilty to failing to take reasonable care of the health and safety of its employees under Section 2(1) of the Health and Safety at Work etc. Act 1974. The company was fined £25,000 with £28,000 costs.
The court heard that during the course of an investigation into the incident, it transpired that large consignments of sacks of rice were routinely manually offloaded from containers without the use of any mechanical aids. The company had not carried out a suitable and sufficient risk assessment for the unloading process, nor had it taken appropriate steps to reduce the risk of injury to the lowest level that is reasonably practicable.
According to HSE statistics, 30 per cent of all acute injuries in the food and drink industry result from bad practice in manual handling, which is defined in the Manual Handling Operations Regulations 1992 as ‘…any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or bodily force’.
The HSE has useful guidance on this topic, ‘Getting to grips with manual handling – A short guide’. This outlines problems associated with manual handling and sets out best practice in dealing with them. The publication is available at http://www.hse.gov.uk/pubns/indg143.pdf. In addition, there is a Manual Handling Assessment Chart Tool, which has been developed to help the user identify the level of risk involved in workplace manual handling activities. This is available at http://www.hse.gov.uk/msd/mac/.
“Employers who fail to comply with their duties under health and safety law not only risk having to pay fines and possible prosecution but also lay themselves open to claims for damages from employees who suffer injury as a result of poor workplace practices,” says <<CONTACT DETAILS>>. “We can advise you on any aspect of the law on health and safety at work.”
Mother Wins Sexual Orientation Discrimination Claim
The Employment Equality (Sexual Orientation) Regulations 2003 prohibit victimisation and harassment as well as other forms of discrimination in the workplace based on sexual orientation.
In the Regulations, ‘sexual orientation’ covers sexual orientation towards either persons of the same sex, persons of the opposite sex or persons of the same sex and of the opposite sex. It is therefore unlawful to discriminate against a straight person because he or she is straight as well as it being unlawful to discriminate against a gay man or a lesbian because he or she is homosexual, as a recent case illustrates.
Sharon Legg, a married mother of three children, worked as head of security at a gay nightclub in Bournemouth. She was sacked after a dispute with a colleague and brought a claim of unfair dismissal as well as harassment under the Employment Equality (Sexual Orientation) Regulations. She claimed that she had frequently been subjected to abuse because she was not a lesbian.
The Employment Tribunal (ET) awarded Mrs Legg £3,222 compensation for unfair dismissal because she had been dismissed without the statutory procedures being followed. It also awarded her £3,000 in compensation for harassment on account of the treatment she had endured because she was straight. However, the ET did not find that she was dismissed because she was heterosexual.
A spokesman for Rubyz, the owners of the nightclub, said that whilst the company accepted that Mrs Legg had been dismissed without proper procedures having been followed, it has a zero-tolerance attitude towards any kind of discrimination and is therefore considering an appeal against this decision.
Employers are reminded of the importance of ensuring they have, and follow scrupulously, policies and procedures preventing unlawful discrimination. There is no statutory limit to the amount of compensation a Tribunal can order to be paid to a person who brings a successful claim.
ACAS has useful guidance on this subject, for both employers and employees, which can be found at http://www.acas.org.uk/media/pdf/a/8/guide_sexualO_1.pdf.
New Immigration System – Rules for Highly Skilled Workers
The Government has announced the rules that will apply to highly skilled foreign workers applying to come to the UK under the new Australian-style points based immigration system (PBS). Underpinning the new system will be a five-tier framework – see http://www.bia.homeoffice.gov.uk/managingborders/managingmigration/apointsbasedsystem/howitworks.
The PBS is being introduced gradually with the new rules that apply to those in tier 1 – highly skilled workers – having commenced on 29 February 2008.
Any highly skilled foreign nationals currently working here who want to extend their stay will need to apply under the new system. From April 2008, anyone from India who wants to work in the UK as a highly skilled migrant must apply under the PBS. By summer 2008, the new highly skilled system will operate worldwide.
The aim of the PBS is to ensure that only those migrants whose skills are needed can come to the UK. For further information on the highly skilled migrant programme, see http://www.bia.homeoffice.gov.uk/workingintheuk/hsmp/.
No Entitlement to Sick Pay During Maternity Leave
The Employment Appeal Tribunal (EAT) has held (Department for Work and Pensions v Sutcliffe) that a woman who was certified as sick during her ordinary maternity leave was not entitled to be paid contractual sick pay during that period.
Mrs Sutcliffe started working for the Department for Work and Pensions (DWP) in April 2006. She told her employer that she was pregnant and that her baby was due at the end of August. Shortly after she began her job she went off sick owing to a pregnancy-related complication. She was paid full sick pay, based on her annual salary, during June and July. In the event, she continued to be certificated sick until at least January 2007. Mrs Sutcliffe’s maternity leave commenced on 1 August 2006. From that date, her contractual sick pay ceased and she received ordinary maternity allowance. She was not entitled to statutory maternity pay as she did not have the requisite 26 weeks’ service needed to qualify.
Mrs Sutcliffe claimed that the failure to pay her sick pay while she was absent on maternity leave was an unlawful deduction of wages. The Employment Tribunal upheld her claim. The DWP appealed against the decision.
The Employment Rights Act 1996 (ERA), in conjunction with the Maternity and Parental Leave etc. Regulations 1999, provides 26 weeks of ordinary maternity leave. The ERA states that during ordinary maternity leave a woman is entitled to the benefit of the terms and conditions of employment which would have applied had she not been absent, but these do not include remuneration. The EAT found that sick pay is remuneration for the purposes of the ERA.
The EAT found that the DWP’s maternity policy reflected the statutory position as regards remuneration and that this was incorporated into Mrs Sutcliffe’s contract of employment. The fact that she did not have access to the policy after she went off sick did not negate this. The DWP had done all it could to make her aware of the policy.
As remuneration includes sick pay, Mrs Sutcliffe was not entitled to receive this during her period of maternity leave and so failing to pay it did not constitute unlawful deduction of wages.
Says <<CONTACT DETAILS>>, “During maternity leave, ordinary pay is replaced by the statutory arrangements for maternity pay. It would have been open to the employee in this case to give notice of early termination of her maternity leave so that she could then claim sick pay, but she did not do so.”
Noise at Work in the Music and Entertainment Sectors – A Reminder
From 6 April 2008 the Control of Noise at Work Regulations 2005 apply to the music and entertainment sectors. For other industry sectors these Regulations have been in force since April 2006, but the music and entertainment industry was given a two-year transitional period before implementation of the Regulations. Although there is ample evidence that exposure to live music can cause hearing damage, it was recognised that music is different from other noise as it is created deliberately for entertainment purposes and therefore guidance was necessary to help employers, workers and freelancers in the industry to protect their hearing.
The music and entertainment sectors are defined in the Control of Noise at Work Regulations as all workplaces where:
  • live music is played; or
  • recorded music is played in a restaurant, bar, public house, discotheque or nightclub, or alongside live music or a live dramatic or dance performance.
Employers in these sectors will be required to assess and manage the risks to employees and freelancers from damage due to exposure to noise and to put effective controls and protective measures in place to ensure the legal limits on noise exposure are not exceeded. For more information, see http://www.hse.gov.uk/noise/musicsound.htm.
Safe Working at Height
A recent prosecution by the Health and Safety Executive (HSE) serves as a warning to company directors and business owners of the importance of implementing comprehensive, safe systems for working at height.
The prosecution was brought on the basis that John Ruck Construction Ltd. of Leominster, Herefordshire, had failed to put in place safety measures to protect a worker who was then seriously injured when he fell through a fragile roof. The company was ordered to pay £3,500 in fines plus £1,165 costs after pleading guilty to breaching Regulation 9(2) of the Work at Height Regulations 2005, which covers working on or near a fragile surface.
On 4 December 2006, employee Mark Woodward was undertaking the re-roofing of a property when he fell more than 4.5 metres through a fragile adjoining roof. Insufficient measures had been taken to support or protect anyone from falling. Mr Woodward fell through a fibre cement sheet roof onto a concrete floor below.
Although the roof area where the company was contracted to work had measures in place to protect employees, the work plan changed, with the result that employees were passing across other roofs which were totally unprotected. Mr Woodward survived the fall but suffered a broken arm that was so serious that it required ongoing surgery 12 months after the incident had occurred.
According to the HSE, such falls remain one of the biggest causes of death in the workplace. Last year, in the construction industry alone there were 10 employees killed, 13 self-employed workers killed and 3,409 workers seriously injured after falling from height.
HSE Principal Inspector Tony Woodward said, “Many incidents could be avoided if companies ensured that they had thought through a safe way of tackling a job, provided all necessary protective equipment and ensured workers were fully trained and properly supervised. Precautions that need to be taken to prevent falls are often simple and there is ample free guidance readily available to help companies take the right action.”
Weaknesses in health and safety measures often arise where work plans have to be changed. Contact <<CONTACT DETAILS>> if you would like individual advice on ensuring your business complies with health and safety law.
For information on safe working at height, see hse.gov.uk/falls/index.htm.
The Corporate Manslaughter Act – Are You Ready?
On 6 April 2008 most of the long-awaited Corporate Manslaughter and Corporate Homicide Act 2007 came into force. The Act establishes a new statutory offence of corporate manslaughter (corporate culpable homicide in Scotland).
An organisation is guilty of the offence if the way in which it manages or organises its activities causes a death and amounts to a gross breach of a relevant duty of care to the deceased. A substantial part of the breach must have been in the way activities were managed by the senior management of the organisation.
The new offence builds on the responsibilities that employers and organisations already owe to their employees and members of the general public, with regard to the premises they occupy and the activities they carry out.
Previously, an organisation could only be convicted of manslaughter if a ‘directing mind’ – i.e. a senior manager or director – was also personally liable. However, this did not reflect the reality of the way decisions are made in large organisations and there were very few prosecutions as a result. The new offence is concerned with the corporate liability of the organisation itself, allowing this to be assessed on a wider basis and providing greater accountability for serious management failings across the organisation. It will continue to be possible to bring prosecutions for gross negligence manslaughter against individuals, where there is sufficient evidence and it is in the public interest to do so.
When determining whether an organisation is guilty of the new offence of corporate manslaughter, the courts will look at management systems and practices across the organisation and whether an adequate standard of care was applied to the fatal activity. Juries will be required to consider the extent to which an organisation was in breach of its health and safety requirements and how serious those failings were. They will be able to consider the culture that exists within an organisation regarding health and safety issues. Lax management attitudes that result in a lower standard of care than could reasonably be expected will be punished.
An organisation convicted of the new offence may receive:
  • an unlimited fine;
  • a publicity order requiring an organisation to publicise its conviction and certain details of the offence; and
  • a remedial order requiring the organisation to address the cause of the fatal injury.
Employers are advised to ke

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