Back to work schemes

Posted on February 13, 2013 by Olivia

Appeal Court judges agreed yesterday that a university graduate should not have worked for nothing at Poundland – undoubtedly a set back for the government’s back to work schemes. This wasn’t however, a ruling which means that such schemes cannot be implemented in the future. The decision rested on a technicality relating to the wording of the notice. New regulations will, no doubt, put this right and unpaid work experience schemes will re-surface. However, for the time being employers will, no doubt, be nervous and rightly cautious in taking people on under such schemes.

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Increase in redundancy payments from today

Posted on February 4, 2013 by liam

From today, the cap on a week’s pay for the purposes of calculating redundancy pay has increased from £430 per week to £450 per week.

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Consultation – ending the employment relationship

Posted on February 4, 2013 by Olivia

The government have published their response to consultation on ending the employment relationship and the cap on unfair dismissal awards:-

“Businesses were generally supportive of the aim to facilitate the increased use of settlement agreements, and their concerns centred on seeking clarity and certainty about how the measure would work in practice, and guidance for successful use of the system. Trade unions expressed broad concern about the use of settlement agreements. They did, however, agree with businesses and legal representatives when identifying specific areas of potential complexity, and therefore where clear guidance will be critical.

Businesses supported the introduction of a pay based cap on the compensatory award for unfair dismissal, with some concerns being around employees bringing additional uncapped claims. Trade unions opposed changing the cap, though the majority of these respondents opposed the notion of any cap on compensation for unfair dismissal.”

No surprises there with the polarization of business/trade union views ………!

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Disclosure of criminal convictions

Posted on February 4, 2013 by Olivia

The government have said that they intend to appeal through the Supreme Courts against a Court of Appeal ruling that it is a breach of human rights to require employees to disclose criminal convictions to employers. In the COA cases it is understandable why this conclusion was reached. By way of illustration, one case concerned a 17 year old job applicant who had to disclose police warnings received for theft of a bicycle at age 11. However, as a broad sweeping principle, this would clearly cause problems for employers if employees could apply for jobs without disclosing unspent criminal records.

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Redundancy payments

Posted on January 28, 2013 by Olivia

Figures published today show that just short of £5bn was paid out in the UK in redundancy payments last year.  Gloomily, this price tag is, by large, the product of widespread public sector redundancies as private sector redundancies have levelled off since the surge in 2008/2009.  We are still paying the price for heavy contractual redundancy commitments negotiated by the Unions in the public sector.

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Unfair dismissal awards

Posted on January 25, 2013 by Olivia

are, on average stats, under £5k.  Few employees walk away with the maximum compensation permitted under statute (currently £72,300 to increase to £72,400 in February).  Not so for this teacher who found that her dismissal prevented her from finding another teaching post.

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Disability discrimination

Posted on January 22, 2013 by Olivia

An interesting disability case is reported this week on the EAT website.  Mr Espie was made redundant following application of selection criterion which took into account his period of absence.  He was absent for two reasons – his depression, which was a disability and because of a problem with his appendix.  The EAT agreed with the ET that, by counting the period of absence for a medical reason which did not amount to a disability, the employer – Balfour Beatty, did not discriminate against Mr Espie.  The absence, because also caused by the appendix problems, was not ‘something arising’ from a disability.  I’m not altogether convinced by this Judgment – seems on the harsh side given had he not had the appendix problem, Mr Espie would have still been absent because of his disability and would, in all likelihood, have succeeded in his claim.

Posted in Disability Discrimination | Tagged , | 1 Comment

2013 changes

Posted on January 21, 2013 by Olivia

So as we trudge through the snow on our way to work, battle through a dry January and think longingly of those mulled wine supping, mince pie munching days of December what do we have to look forward to on the employment law front in 2013?  A whole load of changes that’s what:-

  • various reforms to the Tribunal system in the shape of the Enterprise and Regulatory Reform Bill and introduction of ‘protected conversations’;
  • increase to the amount of compensation for unfair dismissal as from 1 February 2013;
  • Introduction of employee- shareholder contracts;
  • Increase to unpaid parental leave;
  • Portable DBS (formerly CRB) checks between employers;
  • Reduction in period of collective consultation from April;
  • Increase in statutory rates of pay.

Well, if that doesn’t give us reason to stamp the snow off our snow boots and turn up the office heating, what will??!!!

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European Union?

Posted on January 16, 2013 by Olivia

Watch out on Friday for David Cameron’s speech on the EU.  Other than have we inadvertently eaten burger horse meat the other big question of the day is whether there is a long term future for UK within the EU?  Given the move towards greater fiscal union within the EU this is looking ever unlikely and a referendum on the issue looking increasingly likely.  This, of course, has far reaching implications for employment legislation given much of this emanates from Europe.  For good or for bad (take the Working Time Directive and Regs for example) a move away from Brussels and national control of employment and social laws would be a huge shake up.  Watch this space and go easy with those burgers………….

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Nadia Eweida, Shirley Chapline, Gary McFarlane and Lillian Ladele

Posted on January 15, 2013 by Olivia

Finally, the long awaited decision in the four discrimination claims taken to the European Court of Human Rights.  It’s good news for one but not for all.

The ECHR has found that Nadia Eweida suffered religious discrimination after BA refused to allow her to wear a cross visibly at work.

However, the ECHR ruled that the others had not been discriminated against (Mrs Chaplin, a nurse, transferred to a desk job by the NHS after refusing to remove a confirmation crucifix which she’d worn for 30 years, Mr McFarlane a marriage counsellor who objected to give sex therapy advice to gay couples and registrar Lillian Ladele who was disciplined after refusing to conduct same sex marriages).

The point of distinction between Eweida and Chaplin is that the ECHR determined that employers should be able to refuse permission to wear a cross on health and safety grounds.

This is all very uncomfortable for Mr Cameron who has publicly supported the women and promised to change the law to allow workers to wear religious symbols at work at the same time as government lawyers were fighting the claims.

We will update you as to the detail of the failed claims as this emerges and also look at the wider implications of these landmark decisions in blogs to come…………..

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Redundancy case 2012: Top 5 @ #4 Capita v Byard

Posted on January 11, 2013 by Philip

Usefully summarises the principles involved for A Tribunal where pooling for redundancy is involved:

It is not the function of the [Employment] Tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted” (per Browne-Wilkinson J in Williams v Compair Maxam Limited [1982] IRLR 83 [18];
(b) “[9]…the courts were recognising that the reasonable response test was applicable to the selection of the pool from which the redundancies were to be drawn” (per Judge Reid QC in Hendy Banks City Print Limited v Fairbrother and Others (UKEAT/0691/04/TM);
(c) “There is no legal requirement that a pool should be limited to employees doing the same or similar work. The question of how the pool should be defined is primarily a matter for the employer to determine. It would be difficult for the employee to challenge it where the employer has genuinely applied his mind [to] the problem” (per Mummery J in Taymech v Ryan [1994] EAT/663/94);
(d) The Employment Tribunal is entitled, if not obliged, to consider with care and scrutinise carefully the reasoning of the employer to determine if he has “genuinely applied” his mind to the issue of who should be in the pool for consideration for redundancy; and that
(e) Even if the employer has genuinely applied his mind to the issue of who should be in the pool for consideration for redundancy, then it will be difficult, but not impossible, for an employee to challenge it.

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Meaning of disability

Posted on January 9, 2013 by Olivia

To qualify as ‘disabled’ for the purposes of the Equality Act 2010, an employee has to show that they have a physical or mental impairment which has a substantial and adverse long term effect on their ability to carry out normal day to day tasks.

The recent EAT Judgment in Mr Aderemi v London and South Eastern Railway Ltd looks specifically at the approach a Tribunal should take when identifying ‘substantial effect on normal day to day activities.’

The case concerned a station attendant who had to be on his feet for most of the day and who developed a back condition which precluded this.  He was dismissed for capability reasons.  The Tribunal found that he was not disabled because the impairment did not have a substantial adverse effect upon his ability to do normal day to day activities.  In reaching this decision, the Tribunal wrongly focused on activities he could do rather than what he could not i.e. stand for periods of 30 minutes or so, bend, lift and carry.  This was the wrong approach.

The advocate for the employer tried to run some interesting arguments.  He submitted that in the legislation ‘activities’ is in the plural and standing is instead a singular activity,  He also submitted that that are not enough people who have to stand for long periods as part of their job for the Tribunal to find that this was a normal day to day activity.  These arguments were rejected by the EAT.

The case has been remitted to the Employment Tribunal.

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Five most important redudancy cases for 2012

Posted on January 2, 2013 by Philip

At #5: Shumba v Park Cakes:

Restates the principles that apply to determine whether an enhanced redundancy payment has become contractual.

An enhanced redundancy payment will be due if all or most of these are present:
“(a) whether the policy was drawn to the attention of employees;
(b) whether it was followed without exception for a substantial period;
(c) the number of occasions on which it was followed;
(d) whether payments were made automatically;
(e) whether the nature of communication of the policy supported the inference that the employers intended to be contractually bound;
(f) whether the policy was adopted by agreement;
(g) whether employees had a reasonable expectation that the enhanced payment would be made;
(h) whether terms were incorporated in a written agreement;
(i) whether the terms were consistently applied.”

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In the course of employment

Posted on December 21, 2012 by Philip

Australian style !

Posted in Uncategorized | 1 Comment

Costs awards

Posted on December 19, 2012 by Olivia

In earlier blogs we have commented on the wide discretion an Employment Tribunal have when determining costs.  This includes the discretion to look at the ability of the party in question to meet a costs award.  In the case of Adecco UK Ltd v Mr Aldwinkle the Tribunal failed to make a costs award against Mr Aldwinkle who did not attend the hearing and had not actively pursued his claim beforehand.  The Judge commented that it was impossible to determine his means/ability to meet a costs award when he was not there to give evidence on this point.  Seems unfair?  So thought the EAT who determined (in line with previous case law) that a costs award can be made notwithstanding the non attendance of the other party when it is appropriate to do so, taking into account their previous conduct.  The fact they are unable to give evidence in respect of the costs application is, in essence, a consequence of their own unreasonable behaviour.

And the outcome?  A costs award of £375.  One wonders whether it was worth all the bother………….!!

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Collective Consultation

Posted on December 18, 2012 by Philip

The government is proposing to reduce the 100+ redundancies collective consultation period to 45 days from 90 days.

This proposal looks sensible as most collective consultations do not last 90 days.

However most employees and trade unions will see this as a reduction in rights as the protected period is seen as a period where dismissal is difficult and therefore in effect it will be seen as employees losing 45 days pay.

However can anyone see any logic for a redundant employee being protected from dismissal for 90 days where they are one of a 100 redundancies and only being protected from dismissal for 30 days where they are one of 99 redundancies.

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Pay increase?

Posted on December 17, 2012 by Olivia

This is the way to go about it - no messing and straight to the top ………

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Go to Jail!

Posted on December 14, 2012 by Philip

Interesting case reported in the USA about a Company Director who was sent to jail for not paying wages:

Read it here.

Certainly gives the law bit more bite than an unlawful deductions claim.

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Continuity of employment ….

Posted on December 14, 2012 by Olivia

is often a thorny issue.  The EAT case of Mr Welton v Deluxe Retail Ltd may assist going forwards as it reviews the latest authorities (some conflicting) on the issue.

In summary, in this case an employee worked at a store in Sheffield which closed down and his employment ended.  During the next working week he accepted employment with the same employer in Blackpool with the first working day falling the next week.  The issue was whether there was continuity of employment when he was dismissed a few months later.

The EAT found that there was continuity of employment – an agreement made in one week to start work in the next can be a contract of employment so that there is no break in continuity.

A useful Judgment albeit fact sensitive – particularly in relation to relevant dates.

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Increase in Limits Order 2012 – Redundancy pay to rise from 1 February 2013

Posted on December 13, 2012 by liam

The annual increase in limits order has been passed. From 1 February 2013, the cap on a week’s pay for redundancy and various other purposes will be £450 per week, up from the current £430.

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Thinc Group v Armstrong

Posted on December 13, 2012 by Olivia

A Court of Appeal case this week demonstrates the importance of including ‘entire agreement’ clauses in contracts – including employment contracts.

Thinc Group offered a payment of over £200,000 to Mr Armstrong as an inducement to join the Company.  He was given assurances that the only condition attached to the payment was staying with the Company for 3 years.  The actual contract provided for repayment of the payment if the contract was terminated within 3 years.  Spot the disconnect?!

The COA held that the condition was a collateral warranty that superseded the express terms of the contract.  Had there been an ‘entire agreement’ provision in the contract this would not have been the case.

The morale of the tale is to always include such a provision, particularly where there have been talks before signature and where parties may later try to rely on things said and promises made during such talks.

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Is the £30,000 termination payment “Allowance” next for the chop?

Posted on December 10, 2012 by liam

This article in the Telegraph suggests that the government may review the up to £30k tax free employers can currently pay to employees on the termination of their employment. The size of the £30k in real terms has already decreased over the years as a result of inflation and the £30k not being increased to keep up with inflation. The limit has been £30k for as long as I can remember.

Whether it will be removed or not isn’t clear, but it’s one of a number of employee benefits that could be changed following the Office for Tax Simplification review.

Posted in Income Tax | Tagged , , , | 1 Comment

Continuing act

Posted on December 7, 2012 by Olivia

There is often debate, in discrimination claims, as to whether an act is a one off or is an act extending over a period.  This is often crucial to whether a claim has been presented in time.  This was the case in the EAT in Mr Okoro/Mr Okenwa v Taylor Woodrow Constuction (amongst others).  It concerned contract workers who were banned from working again for the principal.  They claimed this ban was an act of discrimination.  Their claim, however, was brought 6 months after the ban was imposed (rather than within the three month time frame).  They argued that the ban was not a one off but was an act extending over a period, so as to confer jurisdiction.  The EAT agreed with the Tribunal, that the decision was one of fact and they were entitled to find the ban to be a one-off act.

Of additional note is that fact that the solicitor representing the Claimants at Tribunal was the unlucky recipient of a £40,508.42 wasted costs order.  Ouch!

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2014 – 2015 Pensions

Posted on December 6, 2012 by liam

From 6 April 2014, it will only be possible to pay £40,000.00 per year into a pension compared to the current £50,000.00. This won’t be a change that will affect a lot of employees, but it will affect some high earners.

It is also expected that the lifetime pension limit will decrease from £1.5m to £1.25m. To put this into context, the average UK pension pot on retirement is about £25,000.00 and more than a third of people have a pension pot of under £10,000.00 and this change will therefore only impact on high earners who are tucking away £40k+ per year into a pension fund.

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2013-2014 Tax Bands

Posted on December 6, 2012 by liam

The Personal Allowance (the amount of money that each tax payer can earn tax free each year) was announced yesterday. It will increase from £8,105 to £9,440. Good news for those earning the UK average salary of about £26k as this change will make anyone earning less than £41,450 per year better off by 20% of £1,335 i.e. £267 per year.

What’s the catch? Those earning more than £41,450 but less than £42,475 per year, will become higher rate tax payers and pay 40% tax £1,025 per year sooner. This will increase their tax bill by £205. Therefore someone earning £42,475 now will be £62 better off in absolute terms (ignoring inflation) from 6 April next year.

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Pay review

Posted on December 3, 2012 by Olivia

A survey by the High Pay Centre has revealed that the pay of Company Executives has increased by an average of 12pc in the last financial year (notwithstanding the banking crisis, recession and bonus row), more than four times that of other workers.

So much for austerity measures!

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Contract of employment

Posted on November 30, 2012 by Olivia

Proof read any letters identifying salary or any other contractual terms is the morale of the EAT case The Partners of Haxby Practice v Mrs SK Collen.  Mrs Collen was offered a job in a telephone conversation at a salary of £22,427.  However, the letter of confirmation wrongly identified her salary as £30,762 (the dangers of ‘cut and paste’!).

The Tribunal (in a decision upheld by the EAT) found that the correct salary was £30,762 on the basis that (a) the parties had agreed they would not be bound until there was a written offer and acceptance as the Claimant was told on the phone that ‘the terms of the job offer would be confirmed to her’, (b) the Claimant honestly did not appreciate that the higher figure was a mistake and (c) even if a binding agreement had been made in the telephone conversation this had been superseded by the exchange of letters.

The EAT made it clear that the position would have been different if the Claimant had accepted the written offer knowing or believing it to have been made in error.

The interesting observation here relates to the importance of the Claimant’s belief – the case turns on this point.  The credibility of a Claimant at Tribunal will therefore be crucial to the finding reached in future similar cases.

As an aside, the EAT Judgment does reference a letter sent by the Managing Partner to the Claimant accusing her of being unreasonable and disingenuous and saying he was ‘bemused by her behaviour’.  The Judge comments on the fact that this letter does not acknowledge that the cause of the problem was a mistake by one of the Practice staff.  A cautionary note, therefore, to any employers who become unnecessarily aggressive in written communications in circumstances where problems have been caused by them or their staff – it does not stand you in good stead at Tribunal!

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Bribery Act Guidance

Posted on November 29, 2012 by Philip

The Government has useful resources available to help comply with the regulated market in which businesses operate.

One such useful publication is the Ministry of Justice’s guidance on complying with the Bribery Act.

Available to download here: http://www.justice.gov.uk/downloads/legislation/bribery-act-2010-guidance.pdf

If any employer wishes to train their employees via an elearning package, contact PJH Law

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Unfair dismissal compensatory award

Posted on November 28, 2012 by Olivia

The EAT case of Optimum Group Services PLC v Mr Kenneth Walter addressed the question of whether a sum due under a Compromise Agreement with a Second Respondent should be deductible from the compensatory award made against the First Respondent.  The EAT clarified that this should be the case as otherwise the Claimant would benefit from double recovery.  The key point is that the Tribunal should have regard to ‘loss sustained’ and amounts paid under Compromise Agreements are relevant to this.

Posted in Employment Tribunal Procedure, Unfair Dismissal | Tagged , | Leave a comment

Cameras in Employment Tribunals?

Posted on November 27, 2012 by Olivia

You may have read in the press that the government intends to launch broadcasting of court proceedings by initially allowing filming in criminal and civil divisions of the Court of Appeal.  This is something of a hot legal potato as a parliamentary committee (amongst others) has voiced serious concerns over such government plans.  It is an interesting point though.  Would filming of Employment Tribunal proceedings encourage or deter Claimants from presenting claims?  Encourage or deter Respondents from defending?  Result in every case being a loss for the Respondent due to attendant publicity? Would anyone even be interested in watching?  Are we one step away from ‘I’m an Employment Tribunal Judge, Get Me Out Of Here?’

Posted in Employment Tribunal Procedure | Tagged | 1 Comment