Archive for October, 2007
By Philip - Wednesday, October 31st, 2007
At PJH Law we deliver training to employers on dignity at work and harassment issues. Team members have over 15 years combined experience in delivering face to face training and our elearning dignity at work product is now over 2 years old.
When delivering face to face training we try to stimulate interest and debate by discussing, in general and anonymised terms, cases of harassment we have dealt with over the years. We also state that harassing someone because they are disabled is a rare event, with sexual or racial harassment being a far more prevalent claim.
Well the story reported here, you couldn’t make up, even as a far fetched case study exercise. An employee with thalidomide was harassed at work, with the harassment relating to her disability and her sex. The harassment, or so the Tribunal were told, included a works night out at the local bowling alley as a “team building exercise,”even though the employee only had 3 fingers on one hand and had one inch fingers on the other and could not hold a bowling ball. To add further humiliation to her existing embarassment, she was awarded the certificate mega flops at the end of the evening, after only being able to use the child’s bowling ramp.
You would imagine that the type of employer to allow this to happen would operate in a hard nosed, no nonsense industry sector. Wrong!The Company at the centre of allegations apparently organises therapy for dyslexic children, talk about leaving foxes to guard the chicken coop.
Posted in Disability Discrimination, Sex/Race Discrimination | No comments »
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By Philip - Tuesday, October 30th, 2007
The application of employment law in the workplace can often be reduced to a series of steps or processes. In a redundancy , an employer needs to consult properly, ensure pooling and selection is carried out correctly, and take steps to ensure the issue of alternative employment is addressed, as well as following the statutory dismissal procedure.
In the case reported here, the Scottish EAT upheld a decision not to award compensation in a case concerning an unfair redundancy dismissal. The Tribunal found the dismissal unfair for failing to follow the statutory dismissal procedure but awarded no compensation on the basis his employment was bound to have ended had a proper procedure been followed.
Central to the finding of no compensation was the fact that the Claimant, prior to being dismissed, had been offered alternative employment albeit at a lower salary and with a probationary period.
As the contract on which the Claimant was working had come to an end, the conclusion was inevitable.
In cases where there is a clear need for redundancies, and no issue of selection, then the issue of alternative employment is at centre stage.
Where the employer can show, as in this case, that they had addressed their mind to the problem of alternative employment and come up with an offer, then the employee’s prospects of being awarded substantial compensation are slim as effectively by declining the offer they have elected to leave employment.
There is scope for confusion as the issue of alternative employment can become conflated with the issue of suitable alternative employment. Where the employee unreasonably rejects suitable alternative employment, his right to a redundancy payment may evaporate. That issue is different to the employer’s need in unfair dismissal cases of bringing to the affected employee’s attention any alternative employment. If alternative employment has not been addressed either at all or adequately a Tribunal can then make a finding that there was, say, a 50% chance of retaining employment, and the compensatory award is predicated on that basis.
Making an offer of alternative employment can close down the Tribunal’s options as the Tribunal will know that such an offer was made and rejected.
In the case under discussion,as the offer of alternative employment made by the employer was crucial in the Tribunal’s determination of zero compensation, the question remains, why do so few employers make offers of alternative employment to redundant employees when redundancies are made?
Posted in Redundancy Payment, Unfair Dismissal | No comments »
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By Sarah - Monday, October 29th, 2007
PJH’s blog is now one year old and what a year of developments it has been. Feedback has been positive and clients seem to prefer a snapshot rather than a bi-monthly newsletter. We have moved the site onto our newly developed website which contains a lot more information accessible to all.
We have reported on many changes in the law from maternity regs to holiday and reviewed many decisions made by the EAT and above. We have on the whole been able to comment and predict with some accuracy the likely outcome of the potential challenges making the news. One example is the Freshfields age discrimination case and our prediction that it would not be successful.
Watch this space for more news, updates and developments in the field of employment law. Like the baby pictured we are sure there will be more developments and milestones ahead.
Posted in About us, PJH Law News | No comments »
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By Philip - Friday, October 26th, 2007
It’s always annoying when you receive a letter from the royal mail saying that a letter, addressed to your firm, is being held captive at the royal mail’s office as an incorrect amount of stamps was applied to the letter. The royal mail will release the letter if you pay the missing postage, together with a £1.00 surcharge.
This is annoying as the royal mail are acting as judge, jury,gaoler, and fine collecter. PJH law takes a magnanimous view and pays the surcharge to release the letter. It is odd, though, that quite often under-stamped letters are letters from parties on the other side, where dialogue has been, ahem, robust.
It was unusual, though, to receive an under-stamped letter from an employment tribunal. One arrived recently and we paid the surcharge to have it released.
It was interesting to read of this case reported here, where an employer sent an ET3 back to Watford employment tribunal by post but did not pay sufficient postage. Watford ET, taking a robust and parsiminous approach to public money, refused to pay the surcharge with the end result that the hapless employer was debarred from defending the claim as the Tribunal had not received it within the time limit.
The EAT restored some justice to the proceedings by granting the employer an extension of time to submit a response.
Moral of the story is don’t use snail mail for time critical documents, use fax or email which leave a discernable delivered footprint.
Have a great weekend.
Posted in Employment Tribunal Procedure | No comments »
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By Sarah - Thursday, October 25th, 2007
Professor Julian Le Grand, a former advisor toTony Blair and chair of Health England has had a new brainwave!
He said when speaking at Royal Statistical Society, companies with more than 500 staff should be required to set aside a one-hour exercise period every day in order to boost the fitness of their workforce. They should also provide their employees with fruit.
Food for thought? Here at PJH we believe that exercise of the body can better the mind and have corporate membership of the gym. We occasionally also make smoothies and juices as a team with our special smoothie maker. Are the Professors comments a step too far? Share your thoughts.
Posted in Funnies | No comments »
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By Sarah - Wednesday, October 24th, 2007
The EAT has handed down a decision today, which confirms the law on agency workers/employees. The decision which can be found here in which the EAT upheld the Tribunal’s decision that the Claimant was an employee and had a claim for unfair dismissal. This is despite him having been put on the books as an agency worker and the fact he was paid by the agency after they took a 15% markup.
As always the case is fact sensitive but a useful reminder to agencies and employers out there about the level of control exercised by the end user over the “agency worker”.
Posted in Who is an Employee? | No comments »
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By Philip - Tuesday, October 23rd, 2007
An eminently sensible decision on collective consultation is reported here, although probably a none too popular decision with our hr readers . A Mining Company announced a site closure and made the miners redundant. The mining union brought a claim for a protective award and won a maximum 90 day award for all the protected group.
The Mining Company appealed the decision (perhaps mining companies just carry on digging, especially when they are in a hole!). The union cross appealed on the discrete point as to whether there was a need to consult about the reasons for the redundancy, ie the site closure.
The EAT dismissed the employers appeal and ruled on the trade union’s appeal that there was a need to consult collectively on the reasons behind a site closure as the collective consultation procedure requires the employer to submit in writing the reasons for the redundancies and consult with a view to reaching agreement and to consult with a view to avoiding the dismissals.
What the EAT is saying is that an employer cannot simply go through the motions of consultation, if the site closure is based on an economic reason, there needs to be meaningful discussion with a view to reaching agreement on that issue.
Posted in Redundancy | No comments »
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By Liam - Monday, October 22nd, 2007
From 1 October 2007, the CRE, DRC and EOC ceased to exist as separate organisations. They now all form part of the Commission for Equality and Human Rights. The new website for the CEHR is now up and running. The website has a number of clever little features - it talks to you, lets you change the background colour and text colour and the font size to make the site easier to read for those suffering from a range of conditions (not just the visually impaired) and if you don’t suffer from a disability, but happen to be Welsh, it will change all the text to Cymraeg (Welsh) for you! Have a look at http://www.equalityhumanrights.com/.
Posted in Disability Discrimination, Religion or Belief Discrimination, Sex/Race Discrimination | 2 comments »
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By Liam - Friday, October 19th, 2007
The first increase in statutory holiday entitlement for 9 years came in to force at the beginning of this month.
The change still appears to be causing some confusion. We have had two queries on the same point today alone.
Before 1 October 2007, Workers (not just employees) were entitled to four weeks’ holiday per year. This four weeks (or 20 days for most, 5 day per week, Workers) could include bank holidays i.e. 12 days’ holiday plus 8bank/public holidays was lawful, as was 20 days’ holiday with no entitlement to bank/public holidays.
After 1 October 2007, Workers are entitled to four point eight weeks’ holiday per year. This equates to 24 days’ holiday for most, 5 day per week, Workers. This still can include bank/public holidays i.e. 16 days’ holiday plus 8 bank/public holidays is lawful, as is 24 days’ holiday with no entitlement to bank/public holidays.
Employees whose contracts entitle them to 20 days’ holiday plus 8 bank/public holidays will be disappointed to hear that they are therefore not entitled to more holiday. Indeed, even in 2009 when holiday entitlements are set to increase again, they will not be entitled to more holiday!
Posted in Holidays | 3 comments »
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By Liam - Thursday, October 18th, 2007
The recent decision in Davies v Farnborough College of Technology illustrates the importance for employees bringing an unfair dismissal claim alleging an unfair selection procedure, to consider what difference the unfair selection procedure has made. In order to get a financial award of any value, the unfair procedure must affect the outcome of the redundancy process.
In Davies, Mr Davies was scored at 25%. The other employees in the pool were scored at over 43% and over 50%. Where scores are this far apart, it is difficult to argue that an unfair selection procedure has changed the outcome. Accordingly, although the dismissal was unfair, no compensatory award was made.
Posted in Redundancy | 2 comments »
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