FJG Employ....

Knowledge is only one half. Faith is the other

The scores given to employees during the selection process of redundancy can only be checked by a Tribunal if there are exceptional circumstances such, "absence of good faith or obvious error."

 

The recent case of Dabson v David Cover and Sons Ltd which is the authority on this position states the following advice;

 

So far as an “admission [of potential inaccuracy in marking]” is concerned, the Tribunal must be satisfied that the marker has not made an error as such. The fact that, with hindsight, he accepted he might have awarded a higher mark does not amount to an admission of a mistake or render the selection unfair. 

 

In addition, it was pointed out that the particular skills required for a junior post may well be different from those required for the senior post.  For example, the manager of a plumbing business is not required to be a skilled plumber.  This helps if a situation arises where a manager and an assistant are both being scored for the junior role.  The job in question is not necessarily going to be the manager's by 'right' or seniority.

Hands up for the sack

Earlier this year it was indicated that the ball would start to roll with regard to teachers and the speed at which they could be removed from their posts.  Nothing, as yet, in set in stone but we are aware of the proposed changes and the avenues that are to be explored.

 

The intention is to introduce simpler performance management regulations, which set out a few basic requirements.  The potential is also there to remove many restrictions that are currently in place and to leave other decisions to schools such as the option to introduce a new model policy for schools that deals with both performance and capability/disciplinary issues, to allow poorly performing teachers to be removed in about a term, (a process which currently can take a year or more); clarify that staff illness need not bring disciplinary processes to a halt (a crafty tactic) and scrap about 60 pages of unnecessary guidance. 

 

The current system has meant that poor teachers are rarely sacked- they are simply recycled to another school. This  could be due to the co-operation of (some) head teachers, unions and local authorities. The GTC has been criticised for failing to get rid of poor teachers.  The fought back by pointing out that this could only be achieved if teachers were 'outed' as such. It seems that some heads have been known to give substandard teachers promising references in order to get them off their books and so that they become someone else's problem. This is clearly unacceptable.

 

The new proposals give heads much more control and enable them to get rid of a poor teacher in a term; at the moment it takes at least a year and is a long, tricky process that all employers face. Weak teachers should be identified, and given support to improve, but if they fail to improve they should be sacked. It seems strange that someone who has such an incredibly powerful and important role should be allowed to continue even with strong evidence that they are incapable.  The process of shunting bad teachers around looks like it's at an end.  We'll report back with more information soon.

One man's theology is another man's belly laugh

A recent case has come to the attention of national newspapers and highlights the chasm that resides in between the Tribunal decisions based on religious discrimination re: Christianity and the decisions based on, well, just about any other religion.

 

Celestina Mba raised a claim against Merton Council because they denied her the right to have Sundays off work so that she could recognise the Sabbath.  This is the most recent case claiming religious discrimination whose outcome have not gone in Christianity's favour.   It may well be that when tested in the Tribunal Christianity is not as rigid as the Tribunal 'needs' it to be.  It does not require followers to do anything specific at a definitive time, like praying- some churches even offer services on a Saturday evening for example.  It is therefore difficult to prove discrimination if a religion is this flexible.

Below are some other cases that mirror this decision.

 

Gary McFarlane, a former elder in a church in Bristol, lost his fight at the Employment Appeal Tribunal (EAT) in London to prove discrimination by the relationship charity Relate in 2009.  Mr McFarlane lost his job after refusing to provide sex therapy to gay couples.

 

Nadia Eweida, lost her appeal against a ruling which cleared British Airways of discrimination by stopping her wearing a cross visibly at work.

Hannah Adewole complained that wearing trousers goes against her religious beliefs.

Mrs Adewole, 45, cited a command in the Bible that women should not wear men's clothing, and claimed she was banned from wearing scrub dresses in theatre.  It was even pointed out in her claim that Muslim midwives are allowed to vary official uniform with their own hijabs and tops.  This did not help her and she lost her claim.

Steven Preddy and Martyn Hall  are a gay couple who brought a successful claim against the Christian owners of a Cornwall B&B for refusing to let them share a bed.

 

And even more recently, Christians and politicians reacted with dismay after a judge overturned centuries of custom by outlawing a town hall in Devon from putting prayers on the formal agenda.

When these decisions are looked at in the light of the outcome of Cherfi v G4S Security Services Ltd, where a Muslim employee was allowed to work different hours so that he could attend the Finsbury Park Mosque, it seems sad that Tribunals are forgetting the Christian heritage of Britain.  However,  it does show that in its place we have some excellent legal brains.

We're going through changes ... (part 2)

Hello! Welcome back!  Here are some more changes to employment law that are going ahead in 2012.

There is to be auto enrolment into pensions from October 2012.  New laws coming into effect in October will require employers to automatically enrol eligible jobholders into a pension scheme and pay mandatory minimum contributions. This scheme is being staggered over four years from 1 October 2012, with employers separated into bands according to the number of employees they have. Larger employers will be starting first and the initial wave of employers will be able to voluntarily start auto-enrolment as early as July 2012, should they wish.  If you want more information on this and they types of schemes available we suggest you discuss this with a financial advisor or accountant as we are unable to offer this advice. We can, however, draft you a policy for your staff handbook, and update your contracts to highlight this extra legislative obligation.

As always the national minimum wage will be looked at in due course and the usual knock on effect of how and if that changes apply. This is due in October 2012.

Further potential changes also include a serious look into the Working Time Regulations 1998.  Changes to the Regulations could include clarification of when leave which cannot be taken due to absence on maternity, adoption, parental and/or paternity leave can be carried over to the next leave year.  There was a raft of case law on the subject of holiday last year and it is about time it was formally addressed to delineate exactly where employers stand.

Some other matters under discussion include:

• Financial penalties of up to £5,000 for employers that lose at Tribunal.
• Extension of the Acas Pre-Claim Conciliation scheme. Claimants will potentially be required to submit details of their dispute to Acas before filing a claim. Acas will have a duty to conciliate rather than a power.
• Compromise Agreements to be simplified and to be renamed "Settlement Agreements".
• Consultation on a Rapid Resolution Scheme which could potentially provide quicker and cheaper determination of low value straightforward claims.
• It has been suggested that the whistleblowing rules should be amended so that disclosures about breaches of employment contracts are no longer covered.
• The Government intends to consult on the introduction of "protected conversations" which will potentially allow an employer and employee to have frank and open discussions before disputes escalate.
• The Government will be seeking views on a proposal to introduce "compensated no-fault dismissal" for companies with ten or fewer employees.

The new focus does seem to be mediation and discussion rather than litigation which is good, but we are very interested, in particular, to see how "protected conversations" will play out! 

We're Going Through Changes... (Part 1)

It is about time we let you know what employment law changes are coming up this year.  It is a big set of changes for 2012 after the reforms that were discussed and decided late last year.

 

As always the compensation limits have been looked at and have been given a slight adjustment.  The amount for a statutory week's pay (used to calculate redundancy and the basic award in unfair dismissal claims) rises from £400 to £430. In addition, the maximum compensatory award is increasing from £68,400 to £72,300.  Don't worry, very few claims actually reach these dizzy heights!

The above changes are already in place, as they came in on 01 February 2012.  From April 2012 however, there are more increases that employers need to be aware of: statutory sick pay will increase from £81.60 to £85.85 per week and statutory maternity, paternity and adoption pay will also increase from £128.73 to £135.45 per week.  Although these are claimed back from the government employers will need to think about their cash flow and also should you offer an enhanced scheme you may need to consider raising that too so that your enhancement remains as attractive.

A really interesting amendment that comes in this year is the extension of the qualifying period from one year to two. This will come into force on 06 April 2012 and seems to be as cut and dry as, 'hired on 5th April?- you will have unfair dismissal rights in 1 year.  Hired on 6th?  That will take you 2 years to gain any rights more that whistle blowing or discrimination.'  This is how it is suggested it will happen, as always in law time, and spurious claims, will tell.

Finally, for this instalment, there are some changes that will affect the Tribunals and the mechanics of bringing a claim.  Although infrequently invoked a Tribunal can order a Claimant to make a payment into court of up to £500.  This is known as a  deposit order and  can be forfeited if the Claimant loses the case. It has been suggested that this figure will increase to £1,000 in April 2012 in order to deter vexatious litigants.

Still on the theme of paying, in 2012/13 it has been suggested that claims will now need to be paid for. There are 2 options being discussed at present;

1.  An issue fee and a hearing fee, the amount of which would depend on the nature of the claim. For example, in an individual unfair dismissal claim, the claimant would have to pay an issue fee of £200 and a hearing fee of £1,000.

or

2.  An issue fee only, the amount of which will depend on what the claimant states their claim to be worth. For example an individual unfair dismissal claim worth less than £30,000 would cost £500 to issue and one worth more would cost £1,750.

This is, I'm sure, to weed out vexatious litigants but it could also deter genuine claimants.  Of course though, flip the coin and you could see individuals clinging on harder to a claim.  Advisors will find it harder to persuade them to withdraw with no payment as they will not wish to be left out of pocket by having to cover any Tribunal fees themselves.

Anyone who can walk to the welfare office can walk to work

A recent and quite intriguing case concerned a Claimant who was employed by the local authority and, completely legally, was in receipt of benefits. 

 

As a result of the hard work of the Claimant, the local authority (in the capacity of the employer) gave him a bonus. Smiles all round.  Unfortunately the Claimant did not tell the local authority (it its capacity as dispenser of benefits) that he had received a bonus from them when acting as the employer and therefore the Claimant was technically committing benefit fraud. Uh Oh.

 

In its (now third I think) capacity, as a prosecuting authority, the local authority brought criminal proceedings against the Claimant in his capacity as a local resident.  This was with regard to his claims for housing benefit and council tax benefit, which he was wrongly claiming in light of the bonus.  Still with me so far?  Lovely. 

 

Concurrently, the local authority, wearing the employer hat once more, gave the Claimant a final written warning to last for 2 years for making false claims for benefits. 

 

The Claimant alleged that the decision to prosecute him and not to impose an administrative penalty instead in addition to the length of the warning he received amounted to acts of race discrimination. 

 

It was held that the alleged acts of discrimination by the local authority in its capacity as a prosecuting authority in prosecuting him rather than imposing an administrative penalty instead could not amount to acts of discrimination in the employment field.  Further the Employment Tribunal had no jurisdiction to even consider them.

 

Told you it was intriguing.

Go for Gold!

Two very important events are happening this year;

 

1) The Olympics comes to London; and

2) Fisher Jones Greenwood comes to London!

 

FJG are opening a Fleet Street office from the start of February and it has caused some excitement in the Essex offices.  We are all very happy and proud of our new addition but some of us are apprehensive about how event No. 1 will affect our new commuting arrangements and opportunities for holiday requests.

 

No doubt there will be unusually high requests for holidays this summer, either to watch the games, avoid them or to help take part if your employees have volunteered to be 'Games Makers'. The balance will be a tricky one to effect to ensure no one feels hard done by, discriminated against, or misses out on any pre booked tickets.

 

It is worth considering now what policies and contractual obligations you already have in place and seeing where gaps can be filled or clarified with some extra policies.  However, beware issuing a statement regarding 'first come first served' for holiday requests as you may find yourself inundated on the first day and potential claims of inequality from part time worker who were not in that day.  There could always be a 'draw' in which employees have an even chance to take holidays.  If this seems too flippant managers will need to ascertain what the requirements of each department are and see what options they have. Could you provide a room with the games on and let employees take flexible lunches to coincide with the events they would like to watch?

 

The volunteering for 'Games Makers' will be the subject of new ACAS guidance which, if relevant to your business, will make for helpful reading.  At present, and in the absence of this, you will need to decide if the employee is taking annual leave or unpaid leave.  Be aware that this could set a precedent.  You should have a clear process in mind for grating this leave and if you do not have one already should consider placing a policy reflecting this in your staff handbook.

Everyone is equal but some are more equal that others

Equal pay claims are an interesting area of law and a recent claim by 5 female hospital workers delineates this area further.

 

The Claimants received a higher basic hourly pay and, all but one, received higher overall pay than their male colleagues.  However, the Claimants all received less pay per hour for weekend work and unsocial hours. It was this aspect that the Claimants claimed equal pay for.

 

First off the ET rejected the Claimants' idea that there was a term within their contracts relating to unsocial hours specifically.  The ET further disputed that it was less favourable than a similar term in their male colleagues contracts. The ET held that in reality the Claimants' enhancements (i.e. their overall, better 'normal' hourly wage) formed part of their working hours and basic pay. The pay was to see in conjunction with the lower pay for unsociable hours and viewed as an overall package.

 

This decision was overturned by the EAT, and then the Court of Appeal agreed.  The Court of Appeal decided that that the terms of the contract that related to unsocial hours and weekends were distinct and consequently could be snapped off and compared with other contracts.

The Court of Appeal held that in line with the House of Lord's decision in Hayward v Cammell Laird Shipbuilders Limited that as the terms in the Claimants' contracts were distinct and capable of comparison they therefore should not all be "lumped together" as the ET had suggested. The Court of Appeal stressed that equal pay is focused on each distinct term relating to remuneration as opposed to the totality of pay received.

There is no such thing as a good tax

HMRC has issued rules for the correct tax coding for termination payments, that came into effect from 6 April 2011.

Under the 2010 rules, if a termination of employment payment is made to an employee after the P45 form has been issued to the employee and the payment in question is more than £30 000, any amount over £30 000 will be taxed. The taxation amount is 20% and the code “BR” (for basic rate). The employer is required to withhold 20% of the amount over £30 000, and the former employee is responsible for any further tax that may be payable.

 After 6 April 2011

From the 6th of April, employers making a termination payment after the P45 form has been issues, are required to use the tax code “0T”. This code indicates that the employee has no personal allowances and that the payment is subject to basic and higher rates of tax. The employer is required to withhold income tax at 20%, 40% or 50%, as appropriate.  Ensuring that PAYE is operated correctly and that the correct tax codes are used is the responsibility of the employer and is vital in order to avoid any penalties being imposed on the former employee.

 

So now you know.

Delay in Justice is Injustice

Each time we perform a 'health check' on a company (looking into and updating their employment contracts, staff handbooks and the like. If you fancy one of these, give us a call) we offer this advice, very loudly and very clearly: Do not make your staff handbook contractual.  If you do, you run the risk of a claim coming your way for a misplaced disciplinary meeting or a badly timed letter.  Despite our sage advice it seems the Employment Tribunals are hot on our heels to cast a shadow on the safe haven of the non contractual handbook.

 A recent case has held that there is an implied term in contracts of employment that disciplinary processes be conducted fairly and without undue delay.  Of course, the approach by employers to the disciplinary procedures should be fair and should be actioned promptly, as per the ACAS guidelines. However, until now the ACAS have been just that, and the failure to follow them does help bolster a claim and does result in a pecuniary uplift should the claimant win.  Now the High Court has decided that these aspects of the guidelines are so important they are inferred into each and every contract.

In the conclusion and discussion of the matter the Honourable Mrs Justice Slade DBE did, however, make clear that the effect of such an implied term depends on the circumstances of the particular case.