Archive for February, 2008
By Liam - Friday, February 29th, 2008
In the Employment Appeal Tribunal case of Key Recruitment UK Limited v Lear, the EAT have considered unauthorised deductions from wages in relation to commission claw-back.
It is common for employers who pay commission to employees to reserve the right to have that commission repaid if the client or customer defaults on their invoice or contract.
The EAT considered whether it is lawful to deduct clawed-back amounts from an employee’s wages. It held that it could be.
To maximise the chances of you being able to claw-back commission it is important that there is an express clawback provision in the contract of employment, that it is clear in what circumstances and at what time commission becomes due for repayment and that there is an express deductions clause that allows any commission due for repayment to be deducted from any sums owed to the employee.
It is unlikely in most cases of commission claw-back that the money owed to the employer can be classified properly as an overpayment of wages (that can be deducted properly without an express clause in the contract). This is because at the time the payment was made, it was correct - it subsequently became incorrect as a result of the client’s default on an invoice or contract.
Posted in Unauthorised Deductions from Wages | No comments »
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By Sarah - Thursday, February 28th, 2008
PJH Law also offer a more pro-active service for employers including reviewing policies and documentation, training and e-learning. We have launched our Training Programme for 2008 and initially we have two dates in the calendar.
The first is on 10th April 2008 and the seminar is on TUPE. The seminar is aimed at HR Personnel or employers who may be involved in TUPE transfers. You can find out more here and register your place by contacting us. The course will use both powerpoint and pinpoint and will be half a day.
The second date is 14th May 2008 and will be an Introduction to Employment Law. This seminar will be a full day and is an overview of employment law the complete A-Z. It is suitable as a refresher or for people who find themselves in a HR or quasi-HR role. You can find out more here and register your place by contacting us. The course will use both powerpoint and pinpoint.
ELS clients can use hours to the value of the course from their ELS Agreement rather than pay the course fee.
Posted in Training | No comments »
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By Philip - Tuesday, February 26th, 2008
Given the spate of evil and unsavoury characters that have been sent to prison in the last week, the EAT have had to wrestle with the issue as to whether a prisoner on day release from prison to do work at a local employer under a scheme designed to re-habilitate and re-settle offenders accrues employment rights?
The answer was that no employment rights accrue during day release, so the prisoner in that case could not claim unfair dismissal. Even though he was taken on by the employer after his release, the service when he was on a day release did not count as continuous service therefore he could not claim as he did not have one year’s qualifying service.
Despite getting a chance after being released, he was dismissed for unreliability which is rather disheartening as unemployment will no doubt increase the chances of his recidivism.
As two of the three monsters above have been sentenced to whole of life sentences, the chances of any of them ever getting anywhere near another employer is remote, other than shovelling coal in the fires of hell.
Posted in Uncategorized | 1 comment »
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By Liam - Friday, February 22nd, 2008
Paragraph 2 of Schedule 6 of the Employment Equality (Age) Regulations 2006 requires employers to write to employees 6-12 months before retirement and inform them of the date that they are due to retire and that they have the right to request not to retire.
Under paragraph 4 of the same Regulations, if employers have failed to comply with paragraph 2, employers have a continuing duty to notify the employee of the above two matters right up until 14 days before the day they are due to retire.
If employers do not do this, any dismissal may be unfair depending on whether the meetings part of the retirement procedure is followed and depending on when (if at all) the employee is told of the above two matters.
In addition to unfair dismissal claims, employees can make a stand alone complaint to a Tribunal that the paragraph 2 notification was not given. Such a claim carries an award of up to 8 weeks’ pay.
It is interesting to note that the limitation period for this type of claim is 3 months from the last time the employer could notify in accordance with paragraph 2 (in other words 3 months before retirement) or, if later, 3 months of when the employee knew or should have known that the employer wanted him to retire. This means that in some cases, the claim for 8 weeks’ pay will have to be presented to the Tribunal before any claim for unfair dismissal as the limitation period could expire before the dismissal takes effect!
This could mean employees clogging up the tribunal system with two claims about the same retirement - one for unfair dismissal and one for failure to notify in accordance with paragraph 2.
Posted in Age Discrimination | No comments »
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By Sarah - Thursday, February 21st, 2008
Acting for many employers as we do, there is much frustration over the employee with whom HR are engaged in some process from managing performance to redundancy who then goes off sick.
We have blogged before on the ease at which some GP’s hand out sick notes and that some say they are written on the back of a cornflakes packet. With our employee had on in some cases we would have to disagree when we see people who are genuinely stressed out.
Well the world of politics is proposing a solution. On the back of the conservatives announcements on their plans for benefit reforms should they win the election, the Health Secretary, Alan Johnson, has announced that plans may be a foot to change sick notes into well notes.
The new well note would cover what the employee could do rather than say what they are off with. Perhaps the well note will say can do office based work. Who knows -watch this space.
Posted in Sick Pay | 1 comment »
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By Philip - Wednesday, February 20th, 2008
Here is a link to a speech made by Pat McFadden, Minister of State for Employment Relations and Postal Affairs, to a recent ACAS CIPD conference.
The Postal Affairs part of that job title is curious. Does it cover love affairs carried out by letter? Or does it mean in charge of the post office? This government seems keen on funny job titles. The Department of Education is currently looking for a Head of Horizon Scanning. What does this mean? It did bring to mind an old joke about why weren’t civil servants allowed to look out the window in the morning……….because they need something to do in the afternoon. Anyway, I digress.
The speech acknowledges that the statutory procedures have not been a success owing to the law of unintended consequences kicking in, resulting in more claims not fewer.
The minister also acknowledges the important role of ACAS in resolving employment disputes and that the idea of time limiting ACAS’ involvement was counter productive.
The noise that could be heard during the minister’s speech was the sound of the clock going back to 2004 to pre- statutory procedure days. When the facts change, the department changes its mind and policy.
Posted in Statutory Procedures | 1 comment »
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By Philip - Tuesday, February 19th, 2008
Nothing like a controversial headline to stir debate.
There was an investigation into Massey Ferguson in Coventry in 1982 by the CRE, which found having informal recruitment mechanisms, via word of mouth, led to a homogenous workforce.Employees told their friends and family of vacancies. They then wrote in and got the job. As friends and family were usually of the same race, the workforce at Massey Ferguson replicated itself. Because of the informal recruitment processes the workforce was overwhelmingly white, whilst Coventry was and still is an ethnically mixed area. The record label Two Tone came out of Coventry, the workforce at Massey Ferguson could not be described as Two Tone, more like Vanilla Ice
The informal recruitment mechanism was found to be indirectly racially discriminatory.
Back to the point. If MPs are recruiting friends and family by informal recruitment mechanisms might they be inadvertently replicating the ethnic make up of the Commons? Could this be contrary to the Race Relations Act? Given that this is public money involved and some of this taxing work could be fitted around a full time degree course (and rumour has it a very active social life) , why can’t mps when they come to recruit office staff at least try to operate by a Code of Practice on Recruitment?
Guidance for how employers should recruit is being forever issued by various statutory bodies. Surely MPs don’t want to be accused of “Do as I say not do as I do!” do they?
I appreciate that the argument is more nuanced than the one advanced as there can be sound reasons for some philandering mps to have their spouse as secretary so that a watchful eye can be kept.
That pragmatic point aside, given that it is public money shouldn’t there be a transparent appointment mechanism?
Makes you think, dunnit?
Posted in Uncategorized | No comments »
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By Philip - Monday, February 18th, 2008
Yes I know it’s not a piece of legislation any of our readers (and indeed the writer) will be intimate with, even at a distance.
It was considered at the case reported here
The facts of the case are that a charity concerned with the blind in Blackpool and Fylde unfairly dismissed and discriminated on grounds of disability a blind employee.
You are forgiven if, in reading the last paragraph, you have had to suppress a wry grin at the mention of a charity looking after disabled people discriminating against a disabled employee.
The upshot was that the employee was found to be 40% to blame for his dismissal and his unfair dismissal compensation was reduced accordingly.His compensation overall , including the discrimination award, was £87k.
The Tribunal at first instance made no deduction of compensation for disability discrimination under the above act. The EAT lays open the possibility that awards for discrimination in Tribunals could have percentage deductions if there is contributory negligence. As the argument was not raised at the first tribunal the EAT dismissed the appeal as a new point, which should have been raised at the remedy hearing.
Those of you facing a disability case should ensure that your representatives go armed with the above Act, as the discrimination legislation talks about making an award on the basis of the tort of discrimination and the EAT observed that there is some logic in reading the discrimination legislation in line with the above Act, although it has taken some 30 years to be raised.
The logic goes negligence is a tort, as is discrimination, if an employee has contributed by his conduct to the discrimination then a deduction should be made for contributory negligence.
Posted in Uncategorized | No comments »
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By Philip - Friday, February 15th, 2008
The case reported here illustrates how those with responsibility for administering justice can have vexatious claimants debarred from bringing further claims in any part of the legal system .
In this case the claimant brought many claims in Leicester Tribunal against numerous employers and employment agencies, in one case he even named The Queen and the President of the EU Council as a party, in another the Head of the UK civil service was sued.
From reading the case the claims lodged appeared to have little supporting detail, other than a vague assertion that the claimant had been denied “equal opportunities” which somehow or other amounted to Race Discrimination. Clearly the claimant had a little knowledge of the law, but only enough to make him dangerous vexatious.
This does not mean that the claimant’s next employer has carte blanche to dismiss him unfairly or racially discriminate against him, as the claimant has the right to have the indefinite bar lifted if he can show cause, ie if he can show he has an arguable case.
The case illustrates the balance struck between an individual’s right to access to justice and the public’s right not to have taxpayer’s money spent on dealing with unmeritorious and vexatious claimants.
Posted in Employment Tribunal Procedure | No comments »
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By Sarah - Thursday, February 14th, 2008
What better topic for debate today than office romances. Here at the office there were no Valentine cards arriving and no mysterious bunch of flowers. Thankfully here we don’t mix business with pleasure.
Some employers actively discourage relationships at work and other seem by conduct to encourage it. One employer who will remain nameless, arranges a large number of work socials for employees (no partners allowed) and even an annual ball where the staff get all dressed up but again no partners allowed. Whilst there may be tax reasons for this decision it far from discourages work place romances fuelled by large amounts of alcohol.
We recommend that employers have some form of policy on office romances to avoid any misunderstandings. When things are all loved up it is fine but when it all goes wrong that is when the likes of us lawyers have to step in. Over the years we have seen a number of cases of unwanted advances at work and even cases where people have lost their job when the relationship sours. It all gets messy with allegations of sex discrimination, unfair dismissal and even sexual harassment.
So tonight however you are celebrating - you have been warned!
Posted in Sex/Race Discrimination, Unfair Dismissal | No comments »
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