Archive for September, 2008
By Nicky - Tuesday, September 23rd, 2008
For those of you intently following the Heyday case which has been referred to the European Court of Justice to ascertain whether an employer can legally make an employee retire at the age of 65 in the UK or whether this is not in line with the directive.
The Advocate General, a legal advisor to the European Court of Justice, has given his opinion supporting the UK legislation that employers can make individuals retire at the age of 65. This decision is NOT legally binding, but may influence the Judges within the European Court when making their ruling. Not to be smug but this is in line with what we said back in February 2007.
Click here for the detailed opinion.
It is anticipated that the European Court of Justice will give their ruling at Christmas. We wait with baited breath. Watch this space………
Posted in Age Discrimination | No comments »
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By Philip - Monday, September 22nd, 2008
I’m not quite sure how this report would go down at this place of work. Best summarised as:If you wear the trousers, you’ll end up with deeper pockets!
Posted in Uncategorized | No comments »
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By Philip - Monday, September 22nd, 2008
Stereotyping an employee by reference to their nationality or ethnicity is a tricky one for employers and employees.
In this case the claimant had brought a race discrimination claim, part of which turned on a description of her by her line manager in an email thus:
I am aware that her style of communication has an element of different cultures within it. The Mediterraneans can be more parental and direct in their language and tone. This is not going down very well
The Tribunal that heard the case at first instance drew the following distinction:
Reference to cultural or national traits can involve negative stereotypes but may instead show sensitivity to differences in a positive manner.
As that was a finding of fact the EAT would not interefere. Interesting case but there is a fine line between sensitive awareness of differences and negative stereotyping.
Posted in Sex/Race Discrimination | No comments »
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By Nicky - Thursday, September 18th, 2008
Penalty clauses are sometimes used by employers in an attempt to retain an employee for a certain period of time following a financial payout, usually in the case of bonuses. However, the question arises as to how enforceable are these clauses in reality?
The case of CMC v Zhang 2006 EWCA Civ 408 it was held that a clause in a compromise agreement was a penalty clause introduced as a deterrent intended to induce the employee not to breach any terms of the agreement. Breach of the terms would result in the monies being repayable. The House of Lords decided that this clause was not enforceable and that the sum of money must be an estimate of the damage, not extravagant and unconscionable compared to the actual loss following the breach. For more details click here.
Therefore, if an employer is intending to rely on a penalty clause then they would be wise to ensure that it is reasonable, narrow in scope and reflects a real estimate of the actual loss. Otherwise, if challenged, be prepared to lose!!!
Posted in Breach of Contract, Compromise Agreements | No comments »
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By Jenny - Thursday, September 18th, 2008
In a recent employment tribunal case a tribunal has held that it is not less favourable treatment on the grounds of age when an employer provides private medical insurance as part of a benefits package for employees and the premiums were calculated with reference to age, gender and claims history. The company decided that employees could purchase benefits from a fund which was provided to them and was calculated as a percentage of their salary.
An employee brought a claim when she found out that her premium was higher than it would be for a younger person. The majority of the tribunal held that it was not discriminatory because the ‘treatment’ was the fact that the company had decided to provide a fund to allow employees to purchase benefits and the amount of the fund was not linked to age. The majority of the tribunal also held that the company had demonstrated that the provision of the benefits package was a proportionate means of achieving a legitimate aim.
Posted in Age Discrimination | No comments »
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By Philip - Wednesday, September 17th, 2008
One subject that comes up for discussion is whether an offer of a compromise agreement should be made on an open (ie admissible) basis, or on a without prejudice basis (ie non admissible).
My view is that giving an employee an opportunity to leave on an agreed basis was not something an employer needs to hide from a Tribunal’s view. If an employer is going through a disciplinary process and the evidence is such that the employee is guilty of gross misconduct, I can’t see too much wrong in offering an employee on an open basis a compromise agreement with say a pilon in. Likewise in a redundancy situation where selection looks unanswerable, then an open offer of a compromise agreement is nothing a Tribunal would consider unusual.
In my experience the fact that an employer has offered a compromise agreement is well within a Tribunal’s experience and will not, usually, count against an employer.
The fact that an employee has left two employers under a compromise agreement and is bringing a race claim against a third might possibly count against this employee.
Posted in Compromise Agreements | No comments »
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