Archive for March, 2009
By Philip - Tuesday, March 31st, 2009
No not a Roman Catholic birth control method but apparently a new employment law term. A reasonably well known regional firm has offered its trainee intake due to start in 2010 and 2011 the opportunity either to defer their start date for a year or to withdraw from the training contract altogether-neither option offers compensation. If the firm does not get enough takers then it will go down the compulsory withdrawal route ie the trainee contract will be withdrawn. The trainees are between a rock and a hard place. Want to know which firm? Shoo-you know who
Guess those talented and savvy lawyers looking for a training contract to commence in 2012 will at least know which firm not to apply to.
Posted in Unfair Dismissal | No comments »
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By Liam - Tuesday, March 31st, 2009
In West London Mental Health NHS Trust v Sarkar the EAT have considered the impact of an employer seeking to deal with a disciplinary allegation in an informal manner through negotiation and without recourse to the full disciplinary procedure but on failure of those negotiations reverting back to use of the full disciplinary procedure and deciding to dismiss.
The Tribunal who heard the complaint at first instance found the dismissal unfair mainly because the employer had sought to negotiate a resolution to the disciplinary allegations through a procedure known as the “Fair Blame Policy” designed for relatively minor matters but when those negotiations broke down reverted to the formal disciplinary procedure and decided to dismiss.
The EAT held that seeking to resolve the allegations informally did not prejudice the employer’s right to apply the full disciplinary procedures as it did.
This may prove to be a useful case to bear in mind when employees suggest that trying to deal with a disciplinary matter quickly and cleanly through a compromise agreement prejudices an employer’s right to revert to the disciplinary procedure if the compromise agreement is not concluded.
Posted in Unfair Dismissal | No comments »
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By Philip - Monday, March 30th, 2009
Most HR Practitioners (and experienced employment lawyers) have at some time or another dealt with a claim involving expense claim discrepancies. Most of these cases have a rather mundane set of facts - over claiming mileage, filling in a time sheet incorrectly, wrongly attributing private expenditure like meals or a hotel stay for business expenditure.
Few cases I have dealt with have such a bizarre set of facts than the case of Tinney and Smith. Mr Tinney is Mrs Smith’s personal assistant. As such he has to claim Ms Smith’s additional costs allowance for running her second home. Mr Smith claims for broadband connection but inadvertently includes the invoice for some pay per view movies (which he has watched and aren’t strictly claimable), some of which are of an adult nature. Mr Tinney then asks Ms Smith to sign off said expenses, which she does, not noticing that some of the expenses claimed ought not to be recovered.
The expenses department also does not notice the irrecoverable expense receipts and pays the claim in full.
Mr Tinney and Ms Smith are of course married and some of these pay per view films were viewed when his boss, Ms Smith, was at her main residence, her sister’s spare room. Bad enough you may think, but some dirt digging journalist has uncovered the precise nature of the films watched here . You really couldn’t make it up.
Posted in Unfair Dismissal | No comments »
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By Nicky - Monday, March 30th, 2009
In a bid to deal with gender pay gaps, and confront parental benefits that are often associated with females, the Equalities and Human Rights Commission (ECHR) calls for the statutory paternity leave to be increased from 2 weeks to 8 weeks at 90% salary and statutory maternity leave to be decreased from 9 months to 6 months at 90% salary for 26 weeks.
This would result in an estimated increased cost from £2.1bn to £5.3bn per year.
However, it is claimed that these changes would assist families to have a better work life balance and benefit women by closing the gender pay gap.
For more details click here.
Posted in Family Friendly | No comments »
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By Liam - Friday, March 27th, 2009
A tricky issue in TUPE cases has always been what amounts to an undertaking for the purposes of the Regulations. This issue was eased to some extent from 6 April 2006 by the new TUPE regulations which state that TUPE always applies to Service Provision Changeovers, but the issue of whether something is an undertaking is still relevant in some cases (where there is no service provision changeover, for example the sale of part of a business). The EAT in Henry Convy & 9 Others v Saltire Press Ltd and Anderton Quay Printers Ltd provides a helpful summary of the case law giving guidance on this issue.
Posted in TUPE | No comments »
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By Philip - Thursday, March 26th, 2009
….as Banksy (use the scroller) does not await for this “graffitist.”
Posted in Uncategorized | No comments »
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By Liam - Thursday, March 26th, 2009
A week on Monday (6 April 2009) sees the start of the new tax year. Employees will receive an increase in their tax free personal allowance (rising from £6,035 pa to £6,475 pa) as well as a larger amount of money(rising from up to £34,800 to up to £37,400) taxable at basic rate (20%) rather than higher rate (40%).
This means that employees will need to earn £43,875 a year (personal allowance of £6,475 + £37,400 taxed at basic rate) from 6 April 2009 before they have to pay higher rate tax.
More information is available here.
Posted in Income Tax | 1 comment »
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By Nicky - Wednesday, March 25th, 2009
As demonstrated in this article by Personnel Today, it really does not matter how big or small an employer, if an employees conduct is inappropriate and is not addressed then this may subsequently lead to a claim against the employer.
Training employees to understand what is acceptable conduct in the workplace and what is unacceptable behaviour limits the likelihood of claims being brought.
Indeed we offer an training package which can be completed electronically by employees to assist with these issues. If you require further information please contact us on 0870 350 5805.
Posted in Sexual Orientation Discrimination | No comments »
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By Liam - Wednesday, March 25th, 2009
Most employment rights depend on a person being either an employee or a worker, which is a more broadly defined term. In determining whether someone is an employee, a worker or neither, Tribunals weigh up a number of factors. For example, to be either an employee or a worker, there needs to be some mutuality of obligations i.e. an obligation on the employer to provide work and an obligation on the employee or worker to perform such work.
The EAT considered the impact of a delegation clause in a work agreement in Premier Groundworks v Jozsa.
The work agreement contained the following clause:
“[the claimant] shall have the right to delegate performance of [ground works] services under this agreement to other persons whether or not his employees provided that [the respondent] is notified in advance and provided that any such person is at least capable experienced and qualified as [the claimant] himself.”
The judgment provides a brief summary of decided cases on the point, before concluding that the above clause is not compatible with either worker or employee status. This meant that Mr Jozsa was not entitled to holiday pay as to receive holiday pay, one must be either an employee or a worker.
The key points with such clauses to achieve this result are:
- The right to delegate must be unfettered
- The clause must not limit the right to delegate to times when the delegator is “unable” to provide services
- The delegatee having to meet certain conditions (for example being as competent/skilled/qualified as the delegator) is not a problem
Posted in Who is an Employee? | No comments »
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By Sarah - Tuesday, March 24th, 2009
..but who you know as the old saying goes. A prison officer from HMP Leicester has been sacked for befriending criminals on Facebook. We have blogged before on employers snooping around facebook here and here. In this case the employee was suspended on suspicion of trafficking mobile phones and other items into the prison. The investigation revealed no evidence of trafficking but did detect that he claimed to be friends with 13 known criminals.
In his defence he claimed he knew them from school or playing football which begs the question of quite where he went to school! He then said he had just accepted people who asked to be his friend, which after the event he realised was abit naive. Not a great defence although the story did not say whether the friendly criminals were detained at HMP Leceister at any point.
Posted in Unfair Dismissal | No comments »
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