Friday, May 29th, 2009
The right to request flexible working has been extended to parents who have children up to the age of 16.
Until now, the right has only applied to parents of children under six or who are disabled.
It’s estimated that up to 4.5 million parents will benefit from the change. However, it should be remembered that although firms must give proper consideration to requests for flexible working, they do not have to grant those requests.
Many business groups wanted the introduction of the extended rights to be postponed because of the economic downturn but the Government has decided to press ahead as planned.
Employment Relations Minister, Pat McFadden, said: “We took a second look at all areas of pending legislation because of the downturn, and decided it was still right to proceed because we want to help families cope with their responsibilities.”
For advice on all employment matters contact Kevin Smyth.
Monday, May 25th, 2009
Revenue and Customs officers now have increased powers to enforce the National Minimum Wage (NMW).
The provisions, effective from 6th April, are part of the Employment Act 2008. They give enforcement officers further powers to impose penalties for underpayment. The can also obtain information from employers relating to NMW payments and to take documents away for copying.
The most serious cases can be tried in the Crown Court.
There is also a new way of calculating arrears for workers who have been underpaid. The arrears will be calculated with reference to the NMW rate at the time when the underpayment is rectified as well as the rate at the time when the underpayment originally took place.
It means the employee could be repaid the arrears at a higher rate than he would have originally received had no underpayment taken place. The formula for the calculation also takes into account the length of time the arrears have been outstanding.
This is intended to compensate the employee for having to wait for full payment and also to act as a deterrent to employers.
For employment advice contact Kevin Smyth.
Thursday, May 21st, 2009
Britain has retained the right to opt out of the 48-hour maximum working week.
The European Parliament voted last year to end the opt-out within three years of the new EU Working Time Directive being adopted.
The vote put the parliament in conflict with the Council of Ministers which negotiated a deal with the UK government last summer allowing the opt-out to continue in return for Britain accepting improved rights for temporary workers.
It meant that the Council and the parliament had to negotiate a compromise. However, they have failed to reach an agreement and so the opt-out will remain in place.
Employment Relations Minister Pat McFadden said: “Everyone has the right to basic protections surrounding the hours that they work, but it is also important that they have the right to choose those hours.
“In the UK and many other Member States, choice over working hours has operated successfully for many years. The current economic climate makes it more important than ever that people continue to have the right to put more money in their pockets by working longer hours if they choose to do so.”
For advice on all aspects of employment law contact Kevin Smyth.
Monday, May 18th, 2009
The Government has published its new Equality Bill which contains a range of measures affecting employers.
One of the key aims of the Bill is to narrow the pay gap between men and women.
Secrecy clauses in employment contracts will be banned so that employees can compare wages if they wish, enabling women to take action if they find they are being paid less than men for doing the same work.
Large firms with 250 or more employees will be required to report on the gender pay gap within their organisations.
Firms may also need to consider equality issues when tendering for contracts with public bodies. Organisations such as local authorities will be encouraged to use procurement as a way of promoting equality within private sector firms.
A Government statement gives this example of how it might work: “A council commissioning a construction project for a social regeneration scheme could require the contractor to run a positive action programme to train women in under-represented areas such as plumbing or carpentry, or pre-qualification criteria could be stated.”
Employment tribunals will be given greater powers. At the moment they can make recommendations to companies about how to improve work practices - but only in relation to the individual employee who brought the case. The Bill will allow tribunals to make recommendations which would benefit everyone in the workforce and help prevent similar forms of discrimination happening again.
The Bill will also enable employers to take positive action to rectify a situation where certain groups are under-represented within the workforce. They can balance things out if they wish by appointing someone from an under-represented group, provided the candidate is equally suitable. Such action will be optional. Positive discrimination which involves employing someone based on a particular characteristic regardless of merit will still be illegal.
There will also be more protection for carers against discrimination. It is currently illegal to discriminate against someone because of their association with a person of another race, religion or sexual orientation. The Equality Bill will extend this protection so it relates to age, disability and sex or gender reassignment. It means, for example, that an employer could not refuse to promote someone just because they were the carer of an elderly relative.
The Bill contains several other measures including some relating to promoting equality in society generally. For example, age discrimination will be illegal when selling goods or providing services such as in shops and hospitals or in relation to financial products and insurance.
However, it is in the workplace that the Bill will probably have the most impact. The Government says it is determined to eradicate inequality, particularly in relation to pay.
Vera Baird, Solicitor General and Minister who is taking the Equality Bill through the House, said: “Employers will no longer be able to rely on keeping their pay structure secret. We will ban secrecy clauses in employment contracts, so that women can challenge unfair pay. And we will encourage businesses to report on gender pay, but let us make no mistake: if voluntary measures do not work, we will take stronger measures to ensure equal pay for women.”
The Bill will replace nine other pieces of legislation and approximately 100 measures introduced over the last 40 years. Most of the measures are expected to come into force by the end of next year.
Firms may wish to re-assess their equality policies in light of the new measures in the Bill. Please contact Kevin Smyth if you would like more information.
Monday, May 11th, 2009
An NHS manager has been awarded record damages after being passed over for a new post running breast screening services because she was considered to be too old.
Linda Sturdy was 56 when she was discriminated against by Leeds Teaching Hospitals NHS Trust in 2006. The job she applied for was given to a colleague who is 13 years younger than her.
An employment tribunal has now awarded Mrs Sturdy £33,500 damages for injury to her feelings and £5,700 in aggravated damages. This is the highest ever award for a case of this kind.
Giving the tribunal ruling, Judge Christine Lee said the injury to Mrs Sturdy’s feeling was “about as serious as it gets”. She said Mrs Sturdy’s managers had failed to carry out an unbiased investigation when she complained of age discrimination and had behaved towards her in a way that was “high handed, malicious, insulting and oppressive”.
The case was closely monitored by Age Concern. A spokesman said: “Age discrimination in the workplace is outlawed and employers should not get away with pushing aside older jobseekers’ CVs just because of their age. Instead of valuing their lifetime of skills and experience‚ employers are rejecting older workers often with the glib excuse that they are over qualified.”
Please contact Kevin Smyth if you would like more information about age regulations or any form of discrimination in the workplace.
Wednesday, April 29th, 2009
The statutory holiday entitlement increased on 1st April from 4.8 weeks to 5.6 weeks.
It means that an employee who works a five-day week is now entitled to 28 days annual leave. The entitlement includes bank holidays so the change will make no difference to employers who already give four weeks annual leave plus bank holidays. Those who do not, however, will need to make adjustments.
Part-time workers have the same holiday entitlement on a pro rata basis – that is, 5.6 times their normal working week.
For advice on all employment matters contact Kevin Smyth.
Sunday, April 26th, 2009
The statutory dismissal and disciplinary procedures, which have been heavily criticised by employers since they were introduced five years ago, have now been repealed.
They have been replaced by a new framework based on the provisions of the Employment Act 2008. Employers should now follow the guidelines in the new ACAS Code of Practice on discipline and grievance, effective from 6th April.
One of the main aims of the changes is to provide both employers and employees with greater flexibility. The mandatory three step process of letter, meeting and then right of appeal no longer applies. Instead, the ACAS code sets out the principles that employers and employees should apply to achieve a reasonable standard of behaviour.
Many employers will be relieved to hear that the dismissal of an employee will no longer be considered automatically unfair if there is a breach of procedure.
Instead, a tribunal will consider whether a failure to follow the code was unreasonable taking all the circumstances into account, such as the size of the business. A tribunal will still be able to rule that a dismissal was unfair for procedural reasons but it will also be able to adjust the level of compensation if it considers that the procedural failings had no material impact on the outcome.
Tribunals will also have the power to adjust awards by 25% if either side has failed to act reasonably or failed to comply with the code of practice.
Tribunals will also be able to award compensation for financial loss in certain cases, for example, where an employee is making a claim in relation to deductions from wages or redundancy payments.
Whether the changes bring the expected benefits remains to be seen but in the short term there is a danger that they may cause some confusion. Employers may wish to revise their codes of practice and they should certainly seek legal advice before taking any action in relation to their employees.
For advice on all employment matters contact Kevin Smyth.
Friday, April 24th, 2009
The European Court of Justice (ECJ) has ruled that obliging UK workers to retire when they reach 65 is not unlawful as long as it can be “justified by legitimate aims”.
Those aims would have to be part of legitimate social and employment policies rather than just the convenience of employers.
The ECJ ruling is the latest stage in the case brought by Age Concern challenging the UK’s default retirement age of 65.
The European Directive on Equal Treatment bans discrimination on the grounds of age. Age Concern believes the Employment Equality (Age) Regulations 2006 fail to fully implement the Directive because they allow a default retirement age of 65.
The ECJ was only asked to rule on whether the default retirement age was permissible under the directive. It was not asked to go further and rule on whether or not it was justifiable. The case will be referred back to the High Court in England to decide whether or not the default retirement age can be justified.
However, the ECJ said the UK government would have to “overcome a high hurdle” if it wished to show that forced retirement could be “objectively and reasonably justified by legitimate aims, such as those related to employment policy, the labour market or vocational training”.
The statement continued: “By their public interest nature, those legitimate aims are distinguishable from purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness.
“It is for the national court to ascertain, first, whether the United Kingdom legislation reflects such a legitimate aim and, second, whether the means chosen were appropriate and necessary to achieve it.”
There are currently about 260 related cases on hold pending the outcome of the case which now reverts to the High Court in London.
We shall keep clients informed of developments.
Tuesday, April 21st, 2009
The Local Government Minister, John Healey, has urged local councils to end years of unfairness and right the wrong of unequal pay.
He made the call as he announced that the Government would offer more support to enable local authorities to fund equal pay settlements – usually for women – which often mean compensating employees who have been underpaid for several years.
Since 2006, councils have been allowed to sell some of their assets or borrow against them to raise more than £1bn to meet the costs of settlements. Mr Healey announced that councils will be allowed to continue this programme next year giving them more flexibility to meet their obligations.
Mr Healey said: “Work of equal value deserves equal pay, in councils as in any sector.
“Thousands of council workers, and particularly women, lost out due to unequal pay, which in some cases persisted for decades. It is for councils, working with local unions, to right this wrong.”
Equal pay claims in the public sector have received a lot of publicity over the last few years, largely because of the huge sums involved in settling claims dating back over several years. Employees in the private sector have also shown an increasing willingness to assert their right to equal pay for equivalent work.
Any employee, whether in the public or private sector, who feels they have been underpaid or discriminated against in any way, should seek legal advice as soon as possible.
Please contact Kevin Smyth for more information about this or any aspect of employment law.
Thursday, April 16th, 2009
A teacher who says he resigned because he had been told not to employ a person who was deaf has won his claim for constructive dismissal.
The teacher worked as the head of care at a school. When he recruited a woman who was deaf, the owner of the school called him to a meeting. The teacher said the owner instructed him to dismiss the woman because of her disability. The owner denies giving such an instruction.
The teacher then resigned because he was unwilling to dismiss someone for reasons of disability. His complaint of constructive unfair dismissal was upheld by an employment tribunal which found that although the school owner had not explicitly ordered that the deaf employee should be dismissed, the discussions about terminating her employment were as clear an instruction as it was possible to give without using express words.
That view was later upheld by the Employment Appeal Tribunal.
The school then took the case to the Court of Appeal, submitting that there was no evidence that there was an implied instruction to dismiss and so therefore the tribunal findings were perverse and wrong in law.
However, the Appeal Court has upheld the tribunal decision, saying that evidence of oral discussions such as that between the teacher and the owner did not have to satisfy standards of perfection. It only had to be more likely to be true than the evidence offered by the other side after taking all the relevant circumstances into account.
The tribunal had therefore been entitled to find that on the balance of probabilities, the teacher had resigned because he had been instructed to dismiss the disabled employee, even if his evidence recalling the meeting was not an exact account of what was actually said by the owner.
Please contact Kevin Smyth if you would like more information about employment issues.
© Copyright 2009 Burt Brill & Cardens Solicitors