Several important issues will land on employer’s desks during 2009.
Dismissal and Grievance
On 6th April the statutory dismissal procedure will be deleted from the statute book and not before time – unless, of course, if you are an employment adviser!
I will include full details on my blog and website a little later.
You will need to review your discipline and grievance policy and you will need to give your managers some training on the new procedures.
The new law will take into account the size and administrative resources of the employer. However, an unreasonable failure to comply could attract a 25% uplift of any award.
48-Hour working Week
The European Parliament voted against the UK’s opt-out from the 48-hour working week on 17th December 2008. This is not the end of the opt-out but it is definitely the ‘start of the end’. There are opposing views and I can understand both sides. However, at the time of a biting recession it may not be the best time!
Employment Agencies
Expect new rules to implement the European Directive on employment agencies that might have an impact on the employment status and the process of offering permanent jobs to agency workers.
And the rest . . .
Other changes around the corner include a new all-embracing discrimination act, changes to maternity rules.
And the costs . . .
As from 1st February 2009 the limit on a ‘week’s pay’, for redundancy and other calculations, will be raised from £330 to £350. The maximum award for unfair dismissal will be raised from £63,000 to £66,200. Remember awards in some areas, like discrimination, whistleblowing, etc, are not capped!
Friday 19 December 2008
Monday 1 December 2008
More to watch for . . .
A 50 year old chartered accountant was branded a ‘serial litigator’ by a London Employment Tribunal last week. She had made a series of claims based on the fact that she had been discriminated against on the grounds of her age when refused employment. Most of the firms paid out over £10,000 as opposed to defending the allegation. She was eventually caught out but you should beware.
If a claimant proves facts from which it could be concluded, in the absence of an adequate explanation, that the employer discriminated, the employment tribunal must uphold the complaint unless the employer proves that he did not commit that act. Legalize, I know but it changes the rules and this is why many resorted to a payment.
I recall a similar case some years ago when an Asian gentleman from Leicester made a series of job applications in both his Asian name and an ‘English’ sounding name. He too was found out eventually.
Make sure your documentation is right and fair, make sure your administration is sound and make sure your interviewers are aware of their non-discriminatory responsibilities.
On another topic I note that government are back on the yo-yo. The Health Secretary wants to replace sick notes with ‘fit notes’. The BMA usefully add that they are the patient’s advocate and should not ‘police’ the sickness system. Somebody should!
Finally, the ‘on-off saga’ of the right to seek flexible or part-time working for all carers may be in the Queen’s Speech or it may not.
It seems to me that credit crunch, the banks’ reluctance to play ball and developing employment legislation have a minimal or neutral impact on the public sector and large employers. This cannot be said for the small and medium employer if my mailbox is anything to go by.
If a claimant proves facts from which it could be concluded, in the absence of an adequate explanation, that the employer discriminated, the employment tribunal must uphold the complaint unless the employer proves that he did not commit that act. Legalize, I know but it changes the rules and this is why many resorted to a payment.
I recall a similar case some years ago when an Asian gentleman from Leicester made a series of job applications in both his Asian name and an ‘English’ sounding name. He too was found out eventually.
Make sure your documentation is right and fair, make sure your administration is sound and make sure your interviewers are aware of their non-discriminatory responsibilities.
On another topic I note that government are back on the yo-yo. The Health Secretary wants to replace sick notes with ‘fit notes’. The BMA usefully add that they are the patient’s advocate and should not ‘police’ the sickness system. Somebody should!
Finally, the ‘on-off saga’ of the right to seek flexible or part-time working for all carers may be in the Queen’s Speech or it may not.
It seems to me that credit crunch, the banks’ reluctance to play ball and developing employment legislation have a minimal or neutral impact on the public sector and large employers. This cannot be said for the small and medium employer if my mailbox is anything to go by.
Thursday 20 November 2008
Looking behind John Sergeant
At a time when John Sergeant, the dancing pig, is filling the front pages, there are significant employment issues tucked away. But, let’s face it he even gives ‘dad-dancing’ a bad name. John Travolta he is not!
Back to business, the EU is considering banning women from returning to work within six weeks of giving birth. New mothers could also receive full pay for longer. Some may agree with this but will there be a loss of choice?
A report last week identified that the pay gap between men and women widened to 17.1 per cent last year.
The government seem to be on a yo-yo with their plans to allow applications for flexible working and contract variations for carers of children under 16. First we had the proposal, then it was put off by Lord Mandelson and now we hear it may be back.
Are employers in the SME sector going to offer jobs to women of child-bearing age? Oh yes, I know it is illegal but it is difficult to prove at the recruitment stage.Finally I see that not only are SME’s going to the wall because of banks cutting credit, their friends in the insurance industry are proposing to increase the cost of employee liability insurance by 6-8%.
Back to business, the EU is considering banning women from returning to work within six weeks of giving birth. New mothers could also receive full pay for longer. Some may agree with this but will there be a loss of choice?
A report last week identified that the pay gap between men and women widened to 17.1 per cent last year.
The government seem to be on a yo-yo with their plans to allow applications for flexible working and contract variations for carers of children under 16. First we had the proposal, then it was put off by Lord Mandelson and now we hear it may be back.
Are employers in the SME sector going to offer jobs to women of child-bearing age? Oh yes, I know it is illegal but it is difficult to prove at the recruitment stage.Finally I see that not only are SME’s going to the wall because of banks cutting credit, their friends in the insurance industry are proposing to increase the cost of employee liability insurance by 6-8%.
Thursday 13 November 2008
Do you have to walk out?
Obviously there are circumstances under which an employee feels that he or she has been so badly treated that there is no alternative other than to resign and claim constructive dismissal. In order words there has been a fundamental or, legally speaking, a ‘repudiatory’ breach of the employment contract.
However, I know from my voluntary work with the Citizens Advice Bureau that many do not realise that the threshold justifying resignation is quite severe. A manager acting unreasonably would not normally provide this justification. Asking an employee to carry out work outside their job description when a colleague is sick is not enough. Making an application for flexible working and being turned down or being refused annual leave because too many colleagues have booked ahead of you would not normally be enough. Being suspended on full pay pending an investigation is, legally speaking, no justification in itself for resignation and a constructive dismissal claim. I have met all these.
In constructive dismissal claims the claimant needs to establish the breach of contract. If you cannot overcome this barrier your claim will fail (and most of this type do) – if there is no dismissal there can be no unfair dismissal. Remember also that if you resign your salary stops immediately. Your mortgage protection policy may not pay out and, even if you win the case or attract a settlement payment, this may take several months. Remember also, that you need twelve months continuous service unless who fall into one of the categories for which this does not apply, such as pregnancy, trade union activities, whistleblowing, etc.
What are your experiences?
If you are thinking of resigning due to your treatment, try submitting a grievance or speak to HR/personnel, a trade union official or even CAB. Don’t jump too early as the drop may be more than you anticipate.
However, I know from my voluntary work with the Citizens Advice Bureau that many do not realise that the threshold justifying resignation is quite severe. A manager acting unreasonably would not normally provide this justification. Asking an employee to carry out work outside their job description when a colleague is sick is not enough. Making an application for flexible working and being turned down or being refused annual leave because too many colleagues have booked ahead of you would not normally be enough. Being suspended on full pay pending an investigation is, legally speaking, no justification in itself for resignation and a constructive dismissal claim. I have met all these.
In constructive dismissal claims the claimant needs to establish the breach of contract. If you cannot overcome this barrier your claim will fail (and most of this type do) – if there is no dismissal there can be no unfair dismissal. Remember also that if you resign your salary stops immediately. Your mortgage protection policy may not pay out and, even if you win the case or attract a settlement payment, this may take several months. Remember also, that you need twelve months continuous service unless who fall into one of the categories for which this does not apply, such as pregnancy, trade union activities, whistleblowing, etc.
What are your experiences?
If you are thinking of resigning due to your treatment, try submitting a grievance or speak to HR/personnel, a trade union official or even CAB. Don’t jump too early as the drop may be more than you anticipate.
Sunday 9 November 2008
Employment Tribunals – changes afoot or not!?!
Firstly, the Department of Trade and Industry indicated that employees would have to pay up to £100 for taking a case to an employment tribunal. The Institute of Directors and the Confederation of British Industry claimed that, without charges, the cost of the employment tribunal system would continue to soar. Ruth Lea, head of policy at the Institute of Directors, said: "We are very disappointed because there is no doubt that employment tribunal costs are one of the biggest nightmares employers face."John Cridland, deputy director general at the CBI, said employers were in favour of charges as part of measures to cut the number of disputes going to tribunals.
Then Trade Secretary Patricia Hewitt announced that the government were abandoning their plans in this direction. Bill Morris, general secretary of the TGWU, said: "I am delighted that the Government has removed the burden from the victims of unfair treatment at work." I see his point but does he know how difficulty it is for a small business to get costs and does he realise that not all claimants are ‘victims of unfair treatment’.
However, evidence of yet another U-turn.
The CBI’s John Cridland, hit the news again in September when he suggested that employers were losing confidence and patience with the employment tribunal system and want changes to make it simpler and fairer. Too many companies are settling cases they have a strong chance of winning because of costs and the feeling that tribunals are too sympathetic to "weak and vexatious" claims, the employers' body says. I can support this with evidence of my own.
Whilst the changes due next April are still under consultation and not yet finalized, it seems the major players are setting out their stalls.
A CBI-Pertemps employment trends survey shows that every business with fewer than 50 employees settled every claim despite advice that they would win almost half the cases. I do not think this is completely true but a majority certainly do.
The CBI wants more cost awards made against unsuccessful claimants, more consistency by the tribunals service in processing claims and charges for bringing claims to deter weak and nuisance cases.
A few days ago, Stephen O'Brien, the shadow trade secretary, said he believes the current arrangements are unfair because firms normally have to pay their own tribunal bills, even when they win. The press picked this up with the heading ‘Workers could be discouraged from claiming unfair dismissal under Tory plans to reform the employment tribunal system.
Apparently, the Tories will publish a policy document suggesting that it should be easier for employers to recover their costs from workers who failed to prove wrongful dismissal.(Do they really mean only ‘wrongful dismissal’ or is this a general term to cover unfair dismissal and other claims?)
Mr O'Brien wanted to change the law because the "blame and claim" culture of employment tribunals was damaging the competitiveness of British business. Alternatively, Labour accused him of "jumping on to a bandwagon" and said the Government has only just introduced new employment tribunal rules to reduce the burden of the system on business.
This is all in an environment in which Employment Tribunal applications have soared over the past 10 years. A recent CBI survey said 69 per cent of firms believed that the problem of "weak and vexatious" claims was getting worse.
A tribunal can order a worker who loses to pay the employer's costs if it believes he has acted unreasonably. But the Tories believe the law needs to be changed because this almost never happens. Losing parties only pay the costs of the winning side in one per cent of cases.
Two years ago the Institute of Directors published research showing firms that successfully defend a claim for unfair dismissal spend an average of £7,399 fighting their case. Afterwards, they almost always fail to get any of their money back.
What do you think?
Then Trade Secretary Patricia Hewitt announced that the government were abandoning their plans in this direction. Bill Morris, general secretary of the TGWU, said: "I am delighted that the Government has removed the burden from the victims of unfair treatment at work." I see his point but does he know how difficulty it is for a small business to get costs and does he realise that not all claimants are ‘victims of unfair treatment’.
However, evidence of yet another U-turn.
The CBI’s John Cridland, hit the news again in September when he suggested that employers were losing confidence and patience with the employment tribunal system and want changes to make it simpler and fairer. Too many companies are settling cases they have a strong chance of winning because of costs and the feeling that tribunals are too sympathetic to "weak and vexatious" claims, the employers' body says. I can support this with evidence of my own.
Whilst the changes due next April are still under consultation and not yet finalized, it seems the major players are setting out their stalls.
A CBI-Pertemps employment trends survey shows that every business with fewer than 50 employees settled every claim despite advice that they would win almost half the cases. I do not think this is completely true but a majority certainly do.
The CBI wants more cost awards made against unsuccessful claimants, more consistency by the tribunals service in processing claims and charges for bringing claims to deter weak and nuisance cases.
A few days ago, Stephen O'Brien, the shadow trade secretary, said he believes the current arrangements are unfair because firms normally have to pay their own tribunal bills, even when they win. The press picked this up with the heading ‘Workers could be discouraged from claiming unfair dismissal under Tory plans to reform the employment tribunal system.
Apparently, the Tories will publish a policy document suggesting that it should be easier for employers to recover their costs from workers who failed to prove wrongful dismissal.(Do they really mean only ‘wrongful dismissal’ or is this a general term to cover unfair dismissal and other claims?)
Mr O'Brien wanted to change the law because the "blame and claim" culture of employment tribunals was damaging the competitiveness of British business. Alternatively, Labour accused him of "jumping on to a bandwagon" and said the Government has only just introduced new employment tribunal rules to reduce the burden of the system on business.
This is all in an environment in which Employment Tribunal applications have soared over the past 10 years. A recent CBI survey said 69 per cent of firms believed that the problem of "weak and vexatious" claims was getting worse.
A tribunal can order a worker who loses to pay the employer's costs if it believes he has acted unreasonably. But the Tories believe the law needs to be changed because this almost never happens. Losing parties only pay the costs of the winning side in one per cent of cases.
Two years ago the Institute of Directors published research showing firms that successfully defend a claim for unfair dismissal spend an average of £7,399 fighting their case. Afterwards, they almost always fail to get any of their money back.
What do you think?
Tuesday 4 November 2008
Pregnant Employees
In both my commercial work and voluntary work with the Citizen’s Advice Bureau, I have seen a disturbing increase in cases involving pregnant employees. These include forced resignations, imposition of detriments, failure to follow health and safety requirements and a general reluctance to follow correct procedures. I ask myself, is there a general increase in similar complaints? Is it an indirect result of the difficult trading environment?
Of course, I understand that pregnant worker can cause the small firm problems in areas such as continuity and temporary cover. These are issues that a large organisation takes in its stride.
This said, the law is quite clear and, whether you like it or not, must to be followed. There are few circumstances in which an employer can dismiss a pregnant employee with impunity.
I may be wrong, but I get the feeling that many employers know what should be done but take a risk – maybe hoping that the lady will work away, content with her new bundle, and never return. However, any are finding to their cost that this is not the case. What are your experiences?
Finally, if you are in this situation seek advice before you take action not afterwards.
Of course, I understand that pregnant worker can cause the small firm problems in areas such as continuity and temporary cover. These are issues that a large organisation takes in its stride.
This said, the law is quite clear and, whether you like it or not, must to be followed. There are few circumstances in which an employer can dismiss a pregnant employee with impunity.
I may be wrong, but I get the feeling that many employers know what should be done but take a risk – maybe hoping that the lady will work away, content with her new bundle, and never return. However, any are finding to their cost that this is not the case. What are your experiences?
Finally, if you are in this situation seek advice before you take action not afterwards.
Monday 3 November 2008
Employment Updates
There are a couple of up-dates to report.
1. In May 2008 the Government announced they would be extending the right to request flexible working to those employees with parental responsibility for children aged 16 and under. You may be aware that the right currently exists in respect of children under 6 and children with a disability under 18. Apparently, this proposal, strongly challenged by employers associations, has been shelved due to the 'credit crunch'.
2. The default retirement age of 65 has been subject to challenge from an off-shoot of Age Concern called 'Heyday'. The case is with the European Court of Justice. Many readers with increasing mortgages and reducing pensions may welcome such a move. However, the Advocate-General, a legal adviser to the ECJ, has rejected the claim in support of the Government position. It may change but I am not confident.
1. In May 2008 the Government announced they would be extending the right to request flexible working to those employees with parental responsibility for children aged 16 and under. You may be aware that the right currently exists in respect of children under 6 and children with a disability under 18. Apparently, this proposal, strongly challenged by employers associations, has been shelved due to the 'credit crunch'.
2. The default retirement age of 65 has been subject to challenge from an off-shoot of Age Concern called 'Heyday'. The case is with the European Court of Justice. Many readers with increasing mortgages and reducing pensions may welcome such a move. However, the Advocate-General, a legal adviser to the ECJ, has rejected the claim in support of the Government position. It may change but I am not confident.
Friday 31 October 2008
The Risks of Redundancy
I have had several clients asking about redundancies, which is good. What is not so good is that other clients have told me that they have already made staff redundant. Beware, you could be setting yourself up for a series of claims!
Employment tribunals seldom challenge the business case for a redundancy. In the current environment the reasons are often patently obvious.
Where the claims can arise is in the area of selection or using a redundancy situation to get rid of that awkward character you have been trying to shift for years.
Selection of staff to reduce numbers of those on similar jobs needs to be by an agreed selection process against reasonable criteria. If in doubt get in touch.
Employment tribunals seldom challenge the business case for a redundancy. In the current environment the reasons are often patently obvious.
Where the claims can arise is in the area of selection or using a redundancy situation to get rid of that awkward character you have been trying to shift for years.
Selection of staff to reduce numbers of those on similar jobs needs to be by an agreed selection process against reasonable criteria. If in doubt get in touch.
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