Employment Law Titles ~ Autumn 2007

A Minute Late is Too Late

 

A further case has illustrated the importance of paying heed to the deadlines when submitting claims to the Employment Tribunal (ET).

 

An employee must bring an unfair dismissal claim within three months of his or her effective date of termination. Time limits for presenting claims to the Tribunals Service are normally strictly enforced. If the deadline is missed, the Employment Rights Act 1996 states that the claim will only be accepted if it is presented ‘within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months’.

 

In Beasley v National Grid Electricity Transmissions, the Employment Appeal Tribunal (EAT) upheld the ET’s decision that Mr Beasley’s claim for unfair dismissal was presented outside the three-month period because the claim form arrived by email at the Tribunals Service 88 seconds after the deadline.

 

Mr Beasley contended that the ET had not given proper consideration to whether or not it was reasonably practicable for him to have presented the claim in time.

 

The EAT found that the ET had considered whether Mr Beasley was aware of the time limit. It had heard evidence that although he had been advised by ACAS that submitting a grievance would extend the time limit by 28 days, he was given specific advice the day before the time limit expired that he should get his claim in immediately.

 

As regards the steps taken by Mr Beasley to present his claim on time, the evidence before the ET was that when he sent the claim form at 23:44 on 6 May 2006, he misread the email address to which it had to be sent. The undelivered email was returned to him at 23:45. At 23:57 he sent a test email to the correct address before sending the actual claim form at midnight. The form was not received by the Tribunals Service until 88 seconds after midnight. The EAT held that the ET was entitled to make the finding it had, based on the evidence that Mr Beasley could have sent the claim form at 23:57 instead of the test email.

 

With regard to any impediments which prevented Mr Beasley from presenting his claim in time, although he did have a reduced window of opportunity in which to lodge his claim and had experienced difficulty with the format used and in reading the email address, in the EAT’s view the ET had considered the facts properly and was entitled to reach the conclusion it had on the facts before it.

 

The appeal was therefore dismissed.

 

Contact <<CONTACT DETAILS>> for advice on Employment Tribunal claims and procedures.

 

ACAS Annual Report

 

The Advisory, Conciliation and Arbitration Service (ACAS) has published its 2006/07 annual report. This shows a decrease in the number of claims received from Employment Tribunals for conciliation, with 105,177 cases compared with 109,712 in the previous year. Unfair dismissal was again the largest category of complaint passed for conciliation with 35,583 claims.

 

To date, ACAS has dealt with 395 claims of discrimination under the Employment Equality Age Regulations, which came into force in October 2006.

 

Other statistics from the 2006/07 report include:

 

 

 

 

 

 

 

The ACAS Annual Report and Accounts 2006/07 can be found at

http://www.acas.org.uk/media/pdf/7/a/Acas_Annual_Report_Accounts2006-07(FINAL2AUG07).pdf.

 

Age Discrimination Legislation – Challenges

 

Employers will be interested to know that the Southampton Employment Tribunal (ET) has struck out an application for a stay of proceedings, in a claim for unfair dismissal and unlawful age discrimination, until such time as a decision is handed down by the European Court of Justice (ECJ) in a case challenging the implementation into UK law of the EC Equal Treatment Framework Directive 2000/78. The Directive outlaws age discrimination in employment and vocational training.

 

Heyday, an organisation for people in or nearing retirement, has challenged the Government over the inclusion in the Employment Equality (Age) Regulations 2006 of a mandatory retirement age of 65 or over, on the grounds that this means that the Regulations do not fully implement the Directive. Heyday wants the legislation amended to give workers over 65 the same protection from discrimination as younger workers. In order to settle the issue, the matter was referred to the ECJ and a judgment is not expected for some time yet.

 

In the case before the ET (Johns v Solent SD Ltd.), Mrs Johns commenced proceedings against her employer because she was to be compulsorily retired from her job as she was over 65. She claimed that this amounted to unfair dismissal and direct unlawful discrimination.

 

Solent SD Ltd. argued that the claim had no reasonable prospect of success and should be struck out. It had followed the procedures laid down by the Regulations and it was agreed that the dismissal for retirement was not unfair under the Employment Rights Act 1996. However, Mrs Johns applied for a stay of proceedings because her claim could be successful were Heyday to succeed in its challenge.

 

The ET Chairman took account of the Advocate General’s opinion in a similar case. This was that Directive 2000/78 does not preclude a national law where compulsory retirement clauses provide as sole requirements that workers must have reached the normal retirement age and must have fulfilled the conditions set out in national law regarding the right to draw a pension.

Although the opinion of the Advocate General is not binding, the ET Chairman was of the view that this was ‘well-argued’ and was likely to be followed by the ECJ. In that case there was little likelihood of this claim succeeding and he therefore decided to strike out the proceedings.

Says <<CONTACT DETAILS>>, “Whilst employers with policies which rely on the default retirement age in the age discrimination legislation will take heart from this judgment, the decision of one ET does not bind another and so clarification from the ECJ on this issue will be welcome.”

 

Agency Workers

 

Many employment law rights depend on how much continuous employment an employee has completed.The Employment Appeal Tribunal (EAT) in Scotland has dealt with another case (Wood Group Engineering Ltd. v Robertson) which examined the exact employment status of an agency worker in this context.

 

Karen Robertson was employed by Wood Group Engineering Ltd. as a receptionist from 1 July 2005 until 17 March 2006, when she was dismissed. Had she been in continuous employment with her employer for one year, she would have been able to bring a claim of unfair dismissal. She had previously worked for the company as an agency worker from November 1991 until March 1994 and from October 1998 until the time she became an employee of the company. Ms Robertson claimed that during this time she had an implied contract of employment with Wood Group Engineering which meant that she did have the requisite qualifying service to bring a claim of unfair dismissal against her employer.

 

The Employment Tribunal (ET) found that Wood Group Engineering had exercised control over Ms Robertson’s work and that there was mutuality of obligation between them. In its view, the absence of an express contract between them did not preclude there being an implied contract. In reaching this decision, the ET relied on guidance given in the earlier case of Dacas v Brook Street Bureau (UK) Ltd. The judgment in that case has, however, been criticised in subsequent cases dealing with the employment status of agency workers.

 

The EAT judged that although Dacas v Brook Street Bureau (UK) Ltd. noted and confirmed that control and mutuality of obligation are essentials in a contract of employment, it did not say that if those elements are present, a contract therefore exists. The EAT drew on the more recent judgment in James v London Borough of Greenwich, which said that an implied contract between the worker and the end-user would only be found in rare cases and where there was evidence that the agency arrangements no longer ‘dictate or adequately reflect how the work is actually being performed’.

 

In the EAT’s opinion it was misleading for the ET Chairman to have placed so much emphasis on matters of control and mutuality of obligations. What should have been examined was whether the working situation that existed was capable of being explained by the existing agency contracts. In this case, if one looked at Ms Robertson’s agency contracts for the periods before she became an employee, there were quite extensive contractual obligations between her and the agencies concerned and there was therefore no need to imply a contract of employment between her and Wood Group Engineering.

 

Whether or not the Government responds to repeated calls for a review of the problems with this area of the law remains to be seen. Meanwhile Portugal, which began its six months’ presidency of the EU on 1 July 2007, has put forward a proposal to resurrect the draft EU Agency Workers Directive. This aimed to give agency workers the same terms and conditions as permanent workers but was shelved because the EU Council of Ministers failed to agree on its terms.

The Confederation of British Industry has called on the Government to stand firm against renewed EU and union pressure to resurrect the Directive. In its view, the proposal would ‘heavily reduce the key benefit of flexibility that such workers offer to firms, undermining the incentive to employ them’.

 

The use of agency workers for long periods can lead to difficulties unless the contractual arrangements are clear and the reality of the working arrangements supports the legal form. We can assist in reviewing your agency contracts if you have concerns.

 

Compensation for ‘Ginger’ Jibes

 

A red-haired waitress from Plymouth, who was subjected to sexual taunts and lewd personal comments because of the colour of her hair, has been awarded £17,618 in compensation after she brought a claim for unfair dismissal and sexual harassment. The award was made against Mayflower Kebabs Ltd., Kemal Koyunco, Malik Aldogan and Laxtone Ltd.

 

Sarah Primmer was dismissed from her job at the Rendezvous Café while she was absent from work. Her employer did not accept the sick note she had provided.

 

Prior to her being off work, Ms Primmer had to endure a series of lewd remarks made by the café’s night manager. Exeter Employment Tribunal (ET) heard how he would translate his remarks into Turkish in order to share them with other staff members. The ET Chairman described the harassment as ‘denigrating, highly personal and demeaning’ and damaging to Ms Primmer’s self-esteem. She was so upset by the treatment she had suffered that after she was sacked she spent £90 every three months on having her hair colour changed.

 

Employers are advised to ensure that members of staff are in no doubt that remarks or innuendo of a sexual nature or discrimination of any kind will not be tolerated.

 

Corporate Manslaughter and Corporate Homicide Bill Gains Royal Assent

 

The Corporate Manslaughter and Corporate Homicide Bill received Royal Assent on 26 July 2007 and is expected to come into force on 6 April 2008. 

 

Under the present legislation, to obtain a conviction for corporate manslaughter it is necessary to identify a ‘controlling mind’, who must be in a senior managerial position with appropriate responsibility and authority. This is in practice very difficult to do, especially in larger organisations, with the result that the few successful cases brought have mainly involved small businesses.

 

Under the new legislation, instead of prison sentences for managers found to be guilty, the businesses themselves would face a potentially unlimited fine if their senior managers permitted a ‘gross breach of any duty of care’ which led to a death.

 

The Act creates a new statutory offence of corporate manslaughter (corporate homicide in Scotland), which will occur if a death results from a gross breach of a relevant duty of care which is owed to the deceased by the organisation concerned. The Act defines a breach of a duty of care by an organisation as a ‘gross’ breach if the alleged conduct amounts to a breach of that duty and falls far below the standard that can reasonably be expected of the organisation in the circumstances.

 

Section 8 of the Act specifically requires the jury sitting in these cases to consider whether the evidence shows that the organisation failed to comply with any health and safety legislation that relates to the alleged breach and, if so, how serious that failure was and how much of a risk of death it posed. The jury may also consider the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure.

 

There are also provisions which permit convictions to be publicised. The Act can be found at http://www.opsi.gov.uk/acts/acts2007/ukpga_20070019_en.pdf.

 

It is wise for organisations to keep their procedures under review, especially those with direct health and safety implications. Successful defences to charges of corporate manslaughter will inevitably depend on being able to demonstrate that the organisation takes a responsible attitude to health and safety, with appropriate risk management procedures in place that are enforced rigorously.

 

For advice on the implications of the Act for your business, contact <<CONTACT DETAILS>>.

 

 

Disability Discrimination – Normal Day-to-Day Activities

 

Under the Disability Discrimination Act 1995 (DDA), a person has a disability if they have a physical or mental impairment which has a long-term substantial adverse effect on their normal day-to-day activities. The DDA requires employers to make reasonable adjustments to accommodate the needs of disabled employees.

 

The Employment Appeal Tribunal (EAT) has held (Paterson v Commissioner of Police of the Metropolis) that a policeman who was diagnosed with dyslexia was disabled for the purposes of the DDA.

 

Mr Paterson had been a police officer since 1983, rising to the rank of chief inspector by 1999. In 2004, he was diagnosed as being dyslexic. He had in the past been praised for writing complex and detailed reports and was described as ‘an able communicator’. However, a medical report on his condition recommended that he be allowed 25 per cent more time than was usual at each stage of the selection process for promotion to the rank of superintendent.

 

Mr Paterson brought a claim against his employer for discrimination for a reason relating to his disability and failure to make reasonable adjustments, particularly with regard to the promotion process.

 

The Employment Tribunal (ET) found that he was significantly disadvantaged compared with his peers when taking the promotion examinations but held that he was not disabled within the meaning of the DDA because the promotion process was not a normal day-to-day activity. It found that the effect of his dyslexia on his day-to-day activities was no more than minor or trivial. It also found that although Mr Paterson was disadvantaged when compared with his non-dyslexic colleagues, he was not at a disadvantage if compared with the population as a whole.

 

Mr Paterson appealed against this decision. The EAT found that when determining whether an impairment has a substantial adverse effect, the correct comparison is not with the population at large but between what the individual can do and what he could do if he did not have the impairment. Once the ET had accepted that Mr Paterson needed 25 per cent more time to do the promotion assessment, the only correct inference was that the effect of his dyslexia must have a more than trivial effect on his ability to undertake normal day-to-day activities and that these include activities relevant to progressing in professional life.

 

The EAT therefore upheld the appeal, finding that Mr Paterson was a disabled person within the meaning of the DDA. The ET had failed to take the correct approach to the meaning of disability and it would fundamentally undermine the protection afforded by the legislation if its approach were correct.

 

Care should always be taken if a member of staff becomes disabled and employers are recommended to take advice on their individual circumstances. We can advise you on how to undertake the process of making reasonable adjustments and how to ensure that an employee does not receive less favourable treatment because of their disability.

 

DTI – R.I.P.

 

Following departmental changes made by Gordon Brown when he was appointed Prime Minister, the Department of Trade and Industry (DTI) is no more.

 

It has been replaced by the Department for Business, Enterprise and Regulatory Reform (DBERR). The new Department combines functions from the former DTI – including responsibilities for productivity, business relations, energy, competition and consumers – with the Better Regulation Executive, which was previously part of the Cabinet Office.

 

For further information on the DBERR, see http://www.berr.gov.uk/about/aboutus/index.html.

 

Changes to employment law and practice led by the Department are normally implemented on one of two dates a year, 6 April (the start of the tax year) and 1 October. This is intended to make life easier for employers and business owners by making changes in a more co-ordinated fashion and so assisting them in preparing for new measures. As part of the process, the DBERR also reviews the legislation six months after it is announced in order to alert businesses to any changes or amendments.

 

The Forum of Private Business has expressed concern that the DBERR seems to have got off to a slow start, failing to give sufficient warning to businesses of forthcoming changes in legislation.

 

 

 

 

Gay Youth Worker Wins C of E Discrimination Case

 

Under the Employment Equality (Sexual Orientation) Regulations 2003, it is illegal to discriminate against a person in either employment or vocational training because of their sexual orientation. However, there are exceptions where a particular sexual orientation is a genuine occupational requirement, which includes an organised religion which has a doctrinal objection to homosexuality.

 

In a recent case (Reaney v Hereford Diocesan Board of Finance), a gay Christian man with considerable experience as a youth worker won his claim that Hereford Diocese was in breach of the Regulations because it did not offer him the post of Youth Officer. The tenure of the post was for a period of five to seven years.

 

At interview, Mr Reaney himself raised the subject of his sexuality. He said that he was not currently in a relationship and did not intend to enter into one whilst working as Youth Officer. The Church of England’s position regarding homosexuality, which is set out in a document called ‘Issues in Human Sexuality’, was discussed. He was by far the best candidate for the post and had excellent references. He was, however, told that his appointment would be subject to the approval of the Bishop of Hereford. Such a requirement had not been necessary when Mr Reaney had worked in other Dioceses and he was of the view that the reason for the meeting was to discuss his relationship status.

 

The Bishop of Hereford was concerned about Mr Reaney’s future lifestyle and practice and had a two-hour meeting with him. For the first half an hour of the meeting they discussed the role of the Diocesan Youth Officer before moving on to discuss issues regarding Mr Reaney’s homosexuality. He gave an assurance that he would remain celibate but when asked what he would do if he did meet someone, he said he would talk to the Bishop about it. As Mr Reaney had only recently ended a relationship, the Bishop did not think that he was able, at that time, to promise that he would not enter into one in the future and that he would be able to abide by the ‘Issues’ document. He therefore indicated that he had not yet made up his mind about offering him the appointment. The meeting left Mr Reaney feeling very upset.

 

In the Bishop’s opinion, Mr Reaney was ‘very raw emotionally’ at that time and he did not think he could let someone in that state promise to be celibate. He therefore decided not to offer him the post and telephoned him accordingly. This decision was confirmed by a letter in which the Bishop said he found himself wondering whether Mr Reaney’s ‘heart and his emotions could deliver what his head said’.

 

Mr Reaney brought a claim for harassment and discrimination on the grounds of his sexual orientation.

 

The Employment Tribunal (ET) dismissed the claim of harassment but upheld the discrimination claim. Had it not been for Mr Reaney’s sexual orientation, he would have been offered the job. In the ET’s view, the Diocese had failed to satisfy a requirement necessary for the organised religion exception to apply, namely that when considering someone for employment, it must be reasonable for the employer not to be satisfied that a candidate meets a particular requirement related to the nature of the employment.

 

The requirement in this case was that Mr Reaney should not enter into a homosexual relationship. He had given his assurances on this point and, in the ET’s view, it was not reasonable for the Bishop to be satisfied 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 Bishop of Hereford has expressed disappointment at the ET’s decision and has indicated that there may be an appeal.

 

HSC Fatal Injury Statistics

 

The Health and Safety Commission (HSC) has published statistics relating to fatal injuries at work for the year 2006/2007. The provisional figure for the number of deaths is 241. This corresponds to a rate of 0.8 per 100,000 workers. The finalised figures for 2005/2006 were 217 and 0.72 respectively and were the lowest annual figures on record.

 

In 2006/2007, the construction sector had the highest number of fatal injuries. There were 77 fatalities – 3.7 deaths per 100,000 workers. The Health and Safety Executive (HSE) has confirmed that its inspection programme will continue to target the refurbishment and repair sectors of the industry as there has been a significant increase in the number of fatal injuries to those doing this type of work.

 

In agriculture there were 34 fatalities – a rate of 8.1 deaths per 100,000 workers and in manufacturing there were 35 fatalities – 1.1 per 100,000 workers.

 

The most common cause of fatal injury is falling from a height, with 45 workers killed in this type of accident. This shows a decline of 7.2 per cent compared with last year. The next most common causes of fatal injury are being struck by a moving or falling object or being struck by a moving vehicle. In 2006/2007, these three types of injury accounted for almost half of all fatal injuries to workers.

 

There were 369 fatal injuries to members of the public during 2006/2007 compared with 401 in 2005/2006.

 

The HSE has also announced that it approved 25 per cent more prosecutions in 2006/2007 than in the previous year and health and safety inspectors served 1,000 more enforcement notices.

 

Says <<CONTACT DETAILS>>, “Many work-related accidents could be avoided if proper risk assessments and regular safety checks were carried out. Contact us if you would like guidance on your legal responsibilities as regards health and safety.”

 

HSE Produces Sample Risk Assessments

 

The Health and Safety Executive (HSE) has produced examples of risk assessments intended to show the kind of approach that small businesses in different industries should take when preparing their own assessments. These make clear that a risk assessment should be about identifying practical actions to protect people from harm and injury, not just a bureaucratic formality.

 

To date, sample risk assessments are available for:

 

 

These will be followed by further example risk assessments, covering hairdressing salons and cold storage facilities amongst others.

 

If your business is one of those covered by the examples, you will find much of the detail directly relevant to you. However, HSE stresses that these examples are not meant to be used as a shortcut to completing your own assessment. All businesses have unique features and a particular example may cover some hazards you do not have to deal with in your workplace and not mention some you do. When carrying out your own risk assessments you will still need to follow the standard five step process (see http://www.hse.gov.uk/pubns/indg163.pdf). Even where the hazards are the same, the control measures you put in place may have to be different, to meet the particular conditions in your workplace.

 

The sample risk assessments can be found at http://www.hse.gov.uk/risk/examples.htm.

 

Says <<CONTACT DETAILS>>, “Every business is different and so you do need to identify the particular hazards associated with your business and put in place measures to control the risks in order to do everything reasonably practicable to protect people.”

 

Illegal Contracts

 

An employee who knows that his or her contract of employment is illegal may not be entitled to some employment law rights, such as the right to claim compensation for unfair or wrongful dismissal. Unorthodox arrangements that breach the law can have the same effect, even if they are made in good faith.

 

The Employment Appeal Tribunal (EAT) recently considered an appeal after the Exeter Employment Tribunal (ET) dismissed claims for unfair and wrongful dismissal because the contract of employment on which they were based was ‘tainted by illegality’ (Daymond v Enterprise South Devon).

 

Ms Daymond began working for Enterprise South Devon (ESD), a non-profit making organisation which provides business support and advice, in January 2005, as Director in Charge. Initially, it was thought that she would only be working one day a week but it soon became clear that she was needed on a full-time basis. She was given the option of either being paid via the payroll or of invoicing ESD through a company owned by her. She chose the latter method and therefore avoided paying PAYE and National Insurance Contributions (NICs). This arrangement continued until April 2005 when Ms Daymond was offered and accepted a formal contract of employment as Managing Director, after which she had income tax and NICs deducted from her salary.

 

In January 2006, Ms Daymond was dismissed. She brought a claim of unfair dismissal and also claimed ‘notice pay’ – i.e. damages for wrongful dismissal. ESD said that she had only been employed since April 2005 and so did not have the necessary qualifying service to bring an unfair dismissal claim. Ms Daymond argued that she had been an employee since she started working for them in January 2005.

 

The ET found that Ms Daymond had been employed by ESD from January 2005 but judged that she was not entitled to pursue either claim because the contract she relied on between January and April was tainted by illegality. The arrangements for payment during that period involved a breach of the parties’ obligations under the Taxes Acts. There was, however, no finding as to whether Ms Daymond deliberately sought to avoid paying tax.

 

Ms Daymond appealed against the decision. The EAT agreed with the ET that she was precluded from bringing a claim for unfair dismissal. She had actively chosen to participate in an arrangement which was unlawful. Whether or not she did so in good faith was not relevant. If someone chooses to use non-standard arrangements of this kind they must take the consequences of their actions.

 

As regards Ms Daymond’s claim for ‘notice pay’, the contract of employment under which she was working at the time of her dismissal was not tainted by illegality. The EAT therefore judged that the ET had been wrong to dismiss this claim on the basis it did and it should be remitted to the ET to be decided on its merits.

 

In Brief

 

ACAS Extends Conciliation Service

 

The Advisory, Conciliation and Arbitration Service (ACAS) is to provide conciliation in selected cases referred to it by the Employment Appeal Tribunal (EAT) to assist the parties in reaching a resolution without the need for a hearing.

 

The types of cases which are expected to be referred to ACAS by the EAT include:

 

In 2005/06 the EAT accepted 836 cases for appeal.

 

In Brief

 

Employment Tribunals Service Annual Report

 

The Employment Tribunals Service has published its annual report and accounts for the year 1 April 2006 to 31 March 2007. The total number of claims accepted by Employment Tribunals for the year was 132,577, compared with 115,039 for the previous year. The 15 per cent increase is largely attributed to the number of equal pay claims made against local authorities.

 

972 age discrimination complaints were lodged in the six months after the introduction of the Employment Equality (Age) Regulations 2006 on 1 October 2006.

 

The full statistics are available at

http://www.employmenttribunals.gov.uk/publications/publications.htm#annrep.

 

In Brief

 

The National Minimum Wage – Annual Increases
            

The National Minimum Wage payable to those aged 22 or over increased from £5.35 to £5.52 per hour on 1 October 2007. The development rate for 18- to 21-year-olds increased from £4.45 to £4.60 and for 16- to 17-year-olds from £3.30 to £3.40 per hour.

 

The rate for the accommodation offset was increased to £30.10 per week (£4.30 per day).

 

In Brief

 

New ACAS E-Learning Guide on Age Discrimination

 

The Advisory, Conciliation and Arbitration Service (ACAS) has issued a new electronic learning course on age discrimination in the workplace. This focuses on several key areas relating to age discrimination. Specifically, it

 

 

This and the other ACAS electronic learning guides can be accessed free of charge at http://www.acas.org.uk/elearning/ once you have registered to use the ACAS website.

 

 

In Brief

 

New Guidance on What is Personal Data

 

The Information Commissioner’s Office has published guidance on what is ‘personal data’ for the purposes of the Data Protection Act 1998. Only data which falls within this definition is subject to the rules imposed by the Act.

 

The guidance is designed to help data practitioners to decide whether data falls within the definition of personal data where this is not immediately obvious. It uses examples to illustrate circumstances in which data relates to an identifiable living individual.

 

The guidance can be found at http://www.ico.gov.uk/about_us/news_and_views/current_topics/what_is_personal_data.aspx.

 

Increase in Statutory Holiday Entitlement

 

Employers are reminded that the Working Time (Amendment) Regulations 2007 increased the statutory minimum annual holiday entitlement from 4 weeks (20 days for those working a 5 day week) to 4.8 weeks (24 days) from 1 October 2007.

 

As this is a change in terms of employment to the benefit of employees, employers do not need to reissue contracts of employment. However, staff must be informed in writing of the increased holiday entitlement, either by letter or a statement on their pay slips.

 

Employees do not have to work for a qualifying period in order to be entitled to the extra days. Paid time off does not have to be given for bank and public holidays but, if it is, employers can include this in the holiday entitlement. A list of the expected bank and public holidays for the years 2007 to 2010 can be found on the website of the Department for Business, Enterprise and Regulatory Reform at

http://www.berr.gov.uk/employment/bank-public-holidays/index.html.

 

Part-time workers must receive annual leave equal to 4.8 times their usual working week, regardless of what days of the week they normally work.

 

From 1 April 2009, all workers, including those working part-time, will be entitled to 5.6 times their usual working week – capped at a maximum of 28 days.

 

Employers who already meet the full requirements of the Regulations as at 1 October 2007 (giving the equivalent of 28 days’ holiday, without payment in lieu and where any carryover of the extra 1.6 weeks’ leave is only to the following year) are regarded as being outside of the Regulations, as long as they continue to meet those requirements.

 

Increases must be calculated proportionally, depending on when your holiday year starts. Partial days can be rounded up to the nearest full day but they can be left as they are. You cannot round down a partial day.

 

Employees can, with the agreement of their employer, carry over some or all of the additional holiday to the following year.

 

You must include the additional holiday when calculating average weekly working hours.

 

As a transitional measure, payment in lieu of the additional holiday entitlement introduced on 1 October 2007 will be allowed to continue until 1 April 2009. This is a temporary measure intended to help employers implement the new arrangements. From 1 April 2009, payment in lieu cannot be given for any leave less than the 5.6 weeks statutory minimum.

 

Further information in the form of FAQs can be found at http://www.berr.gov.uk/employment/holidays/faq/index.html.

 

A useful holiday entitlement ready reckoner for existing staff can be found at http://www.berr.gov.uk/employment/holidays/page40455.html.

 

Interestingly, even with a minimum statutory annual leave entitlement of 28 days, the Incomes Data Services Pay Report reveals that the UK will still be near the bottom of the EU league for paid holiday entitlement.

 

 

Informing and Consulting Employees – Publisher Fined in Landmark Case

 

Employers with 100 or more employees have a duty under the Information and Consultation of Employees Regulations 2004 to provide their employees with information and to consult them on major business decisions which affect them at work, with a view to reaching agreement on decisions likely to lead to substantial changes in work organisation or the contractual relations between them and their employees.

 

The legislation applies to anyone carrying out an economic activity, whether it is a business, a school, a public sector body or a charity.

 

Earlier this year, the Central Arbitration Committee (CAC) found that Macmillan Publishers Ltd. was wrong to ignore a valid request from employees for information and consultation arrangements. The company had argued that it already had adequate arrangements in place but the CAC disagreed and ordered it to arrange for the holding of a ballot of its employees to elect information and consultation representatives. However, no such action was taken by Macmillan.

 

The union, Amicus, therefore made a complaint to the Employment Appeal Tribunal (EAT), which found that there had been an ‘unacceptable dragging of feet’ over complying with the order and regarded it as a ‘very grave breach affecting many employees’. The EAT stressed the importance of these rights for workers. It therefore fixed a penalty notice of £55,000, to act as a deterrent to others from adopting ‘what can only be described as the wholly cavalier attitude to their obligations that has been demonstrated by this company’. This is the first time a penalty has been awarded for failing to comply with the legislation. The maximum penalty is £75,000.

 

If the Regulations apply to your business and 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 as to your next steps.

 

The Information and Consultation of Employees Regulations will apply to employers with 50 or more employees from April 2008.

 

Medical Reports in Disability Discrimination Cases

 

A case before the Employment Appeal Tribunal (Hospice of St Mary of Furness v Howard) has highlighted how difficult it can be in some situations to determine whether or not an employee has a disability under the Disability Discrimination Act 1995 (DDA).

 

Mrs Howard began working for the Hospice of St Mary of Furness, as a director of nursing, in May 2004 on a salary of £45,000 per annum. Shortly afterwards, she suffered acute back symptoms which an orthopaedic consultant advised her could be related to a spinal disease, Scheuermann’s disease, which she had suffered from in the past. In October 2004, the Hospice’s occupational health specialist reported that Mrs Howard had made a full recovery (from what he described as a ‘recent slipped disc problem’) and could return to full duties. An MRI scan apparently showed nothing material. However, she was dismissed from her job shortly afterwards.

 

Mrs Howard asserted that she was at the material time disabled by a back condition and that the Hospice was in breach of the provisions of the DDA in various ways, particularly by dismissing her. In all, her claim had a potential value of around £500,000.

 

The Hospice disputed her claims. It argued that if she had any spinal problem at the material time it was not such as would cause more than occasional minor symptoms. It argued that any complaint of more serious symptoms was not genuine or could not be attributed to a physical condition. In its view, Mrs Howard’s absences from work were excessive and unnecessary.

 

The parties involved instructed a joint expert to report on Mrs Howard’s condition. The report said that a precise diagnosis had never been established but her symptoms were genuine and, when acute, markedly disabling. There was little evidence of Scheuermann’s disease however.

 

The Hospice addressed further questions to the expert and, because it was not satisfied with the responses, then sought permission to have Mrs Howard examined by its own expert. The Tribunal Chairman refused, however, saying that it was not necessary under the DDA to establish the cause of an organic condition.

 

The Hospice appealed against this decision. It argued that although it had agreed to a joint expert, it was not bound by that expert’s opinion, especially as there was no clear diagnosis and no record of any objective sign of organically based symptoms. It had good reason to call its own expert to explore the alternative possibility that since there was no organic basis for Mrs Howard’s symptoms, these could be either not genuine or psychogenic.

 

The EAT ruled that the judgment of the Tribunal Chairman should be set aside. Whilst it is not necessary for a claimant to establish the cause of a physical impairment, relying on the principle in Daniels v Walker the Hospice had a ‘more than fanciful reason’ for seeking its own expert. Furthermore, the Chairman had also failed to take into account the size of the claim.

 

Failing to deal correctly with an employee with a disability and/or long-term health problem can have severe financial consequences for an employer. If you face such issues, contact <<CONTACT DETAILS>> for advice before taking any action.

 

National Minimum Wage – First Criminal Prosecution

 

The owner of a children's nursery has been fined £2,500 plus £500 costs in the first criminal prosecution for breach of the National Minimum Wage legislation.

 

Mrs Teresa Aguda, the proprietor of Rascals Day Nursery Ltd. in Walthamstow, pleaded guilty to the charge of obstruction, which is an offence under the National Minimum Wage Act. Mrs Aguda prevented HM Revenue and Customs (HMRC) compliance officers from accessing her staff records when they were attempting to establish whether nursery workers received the National Minimum Wage.

 

The case was brought by the Revenue and Customs Prosecution Office (RCPO).

 

The judge commented that Mrs Aguda had “demonstrated a clear and deliberate intent to obstruct officers and this was a scandalous breach of the National Minimum Wage legislation.”

 

Andy Millican, Criminal Investigation Team Leader for HMRC said, “This prosecution sends a clear message to employers that HMRC and RCPO will actively pursue those we suspect of flouting National Minimum Wage law. If employers obstruct us and refuse to comply with the law they could receive a fine and a criminal record.”

 

The six potential criminal offences under section 31 of the National Minimum Wage Act are:

 

 

Each criminal offence carries a maximum £5,000 fine and a criminal record.

 

The National Minimum Wage for workers aged 22 and over was increased to £5.52 per hour on 1 October 2007. The development rate for 18- to 21-year-olds is now £4.60 an hour and the rate for 16- to 17-year-olds is £3.40.

 

 

Newsagent Fined for Breach of the Working Time Regulations

 

An employer who fails to abide by certain requirements of the Working Time Regulations 1998 can face sanctions under criminal law.

 

Employers must take all reasonable steps to ensure that workers are not required to work more than an average of 48 hours a week, unless they have signed an opt-out agreement. The average weekly working time is normally calculated over 17 weeks. Local authorities are responsible for enforcing these requirements with regard to shops, restaurants and food outlets.

 

In only the second prosecution of its kind in the UK, newsagent Martin McColl Limited admitted breaching the requirements of the Working Time Regulations concerning maximum working hours. Council officers discovered that an employee at the newsagent, in West Edinburgh, was working on average 51.5 hours a week, on one occasion working a 68-hour week, without receiving payment for the extra hours. The company was fined £600.

 

The shop workers’ union USDAW has welcomed the prosecution as a reminder to employers that if they ask their staff to work illegal hours they will be penalised.

 

The Opt-Out

In the UK, individual workers can opt out of the requirement under the Working Time Regulations that the average working week should not exceed 48 hours. This has been the subject of much debate in the past, with the European Commission repeatedly expressing concern over the way the opt-out was being used in the UK. To date, however, proposals to restrict its use have come to nothing. The Minister for Europe has said that the new EU Treaty under negotiation will not affect the UK’s opt-out.

 

If any of your employees work more than an average of 48 hours a week, you must have a valid opt-out agreement in place. Contact <<CONTACT DETAILS>> for advice.

 

Ownership Must Have a Point

 

When a property boundary is wrongly registered, an application may be made to the Land Registry for the plan showing the registered title to be altered.

 

Recently, a local council applied to have the register amended after it discovered that a family had built a garage on land which was incorrectly shown as part of their property on the plans filed as part of their registered title. Had the council’s application been successful, part of the garage would then have been situated on its property.

 

The council argued that the register should be an accurate record of the ownership of the land regardless of who was in possession of it, so it should be altered.

 

The judge refused to order the register to be altered, because if the Council were to take legal action to recover the land, it was probable that it would fail. There would be no point in altering the register whilst leaving the issue over the garage unresolved.

 

Redundancy – Collective Consultation

 

If an employer is ‘proposing to dismiss as redundant’ twenty 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 come into play. Failure to consult can lead to a protective award requiring the employer to pay each affected employee 90 days’ pay.

 

In Optare Group v TGWU, the Employment Appeal Tribunal (EAT) has upheld a decision of the Leeds Employment Tribunal (ET) that the statutory consultation provisions were triggered when the 20 redundant employees included those who had volunteered for redundancy.

 

Initially, Optare Group had told the TGWU that it was proposing to make 19 employees redundant at its Leeds site. On that basis, a shortened consultation process was undertaken. This included asking for volunteers for redundancy and making an assessment of those who should be selected for redundancy dismissal. Three employees volunteered for redundancy and Optare proposed to make a further 17 compulsorily redundant.

 

At this point, Optare was informed by the TGWU that in its view this was a proposal to dismiss 20 employees as redundant and therefore the statutory obligation to consult was triggered. Optare disagreed, arguing that the three volunteers should not be included in the total and the statutory obligation to consult did not therefore apply.

 

The ET found that the only reason the three employees had volunteered to take redundancy was because Optare had sought offers to do so when following its obligations to mitigate the impact of the necessary job losses. The fact that the three would not have been amongst those selected for compulsory redundancy was irrelevant. Nor did the ET find any clear evidence that they would have asked to leave in any event. They should therefore be included in the total number of employees dismissed as redundant.

 

Optare appealed against this decision and lost. The EAT confirmed that the fact that the three had volunteered to go did not reduce the number of employees Optare was proposing to dismiss. The cause of their termination was that they had volunteered to be dismissed by way of redundancy pursuant to the redundancy procedure being undertaken by their employer. Optare therefore had to pay a protective award.

 

Says <<CONTACT DETAILS>>, “One of the aims of the redundancy consultation legislation is to minimise the number of redundancies where possible and, if this cannot be achieved, to identify those who wish to leave voluntarily. If an employer were able to exclude from the total number of employees it is proposing to make redundant those who volunteer at the point when staff are told that there are to be redundancies, it would undermine the aim of the statutory provisions.”

 

Carrying out a redundancy programme requires care and it is prudent to seek expert advice as soon as possible in order to avoid the potential pitfalls.

 

Return to Work After Maternity Leave – What is the Same Job?

 

Under the Maternity and Parental Leave (etc.) Regulations 1999 an employee who takes additional maternity leave is entitled to return to the ‘job in which she was employed before her absence or, if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances’.

 

Recently a school teacher failed to persuade the Employment Appeal Tribunal (EAT) that a return to work as a year 2 teacher or ‘having ‘floating duties’, when she had previously been a reception class teacher, breached the regulations. The school in which she taught was in the habit of moving teachers to different positions every two years in order to widen their experience.

 

The Employment Tribunal (ET) found that in Mrs Blundell’s situation ‘the job in which she was employed before her absence’ meant the job of teacher, not the temporary position she had held as a reception class teacher. The EAT                             concluded that ‘where a precise position is variable, a Tribunal is not obliged to freeze time at the precise moment its occupant takes maternity leave, but may have regard to the normal range within which variation has previously occurred’.

 

In Mrs Blundell’s case, it was clear that the job she was given on her return to work was within the range of variability which she could reasonably have expected.

 

Says <<CONTACT DETAILS>> “To avoid problems of this nature, it makes sense to keep the job descriptions in employment contracts flexible whenever possible.”

 

Return to Work After Maternity Leave – What is the Same Job?

 

Under the Maternity and Parental Leave (etc.) Regulations 1999 an employee who takes additional maternity leave is entitled to return to the ‘job in which she was employed before her absence or, if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances’.

 

In a claim of sex (pregnancy) discrimination (Blundell v St Andrew’s Catholic Primary School), the Employment Appeal Tribunal (EAT) considered for the first time the criteria to be used when determining what counts as the same job under the Regulations.

 

Mrs Blundell had worked at St Andrew’s since 1992 as one of 18 teachers. The head teacher, Mrs Assid, customarily allocated teachers to a particular responsibility for a period of two years and then changed their roles in order to give them a breadth of experience. During the school year 2002 to 2003, Mrs Blundell taught a reception class. In June 2003, she told Mrs Assid that she was pregnant and subsequently took maternity leave. On her return, Mrs Blundell was offered either the position of year 2 class teacher or she could undertake ‘floating duties’. She claimed that this was a breach of the Regulations, which gave her the right to return to the same job she was doing before her maternity leave.

 

The Employment Tribunal (ET) found that in Mrs Blundell’s situation ‘the job in which she was employed before her absence’ meant the job of teacher, not the temporary position she had held as a reception class teacher.

 

Mrs Blundell appealed to the EAT, which examined the definition of ‘job’ as provided for by the Regulations, which is ‘the nature of the work she is employed to do in accordance with the contract and the capacity and place in which she is so employed’. In its view, the level of specificity with which the terms ‘nature’, ‘capacity’ and ‘place’ are to be addressed is likely to be critical and should be determined as a question of fact by the ET, taking into account the purposes of the legislation and the fact that the Regulations themselves provide for exceptional cases where it is not reasonably practicable for an employer to allow a return to the exact same position. The EAT held that the position Mrs Blundell occupied as reception teacher was temporary and ‘it seems plain to us that, where a precise position is variable, a Tribunal is not obliged to freeze time at the precise moment its occupant takes maternity leave, but may have regard to the normal range within which variation has previously occurred’.

 

In Mrs Blundell’s case, it was clear that the job she was given on her return to work was within the range of variability which she could reasonably have expected.

 

Says <<CONTACT DETAILS>> “To avoid problems of this nature, it makes sense to keep the job descriptions in employment contracts flexible whenever possible.”

 

Stress at Work – Is it Reasonably Foreseeable?

 

The Court of Appeal has held that an employer was not liable for damages for personal injury in a case where an employee claimed that its handling of an investigation into a complaint against him was the cause of his stress and depression (Deadman v Bristol City Council).

 

Mr Deadman had worked for Bristol City Council for over 30 years. During the investigation of an allegation of sexual harassment made against him by a female colleague, the Council failed to follow its own complaints procedure as the panel convened to investigate the matter consisted of only t