Whilst all of us in the employment field are finding ourselves involved in issues of redundancy, lay-offs and variations of contract, there are other things to consider.
For example, the new discipline procedures start very shortly and the real impact will not be known for some time; until the lawyers have had time to find the holes. I don't think they will make a great deal of difference to large organisations who will retain their agreed policies and procedures. Small employers may find the whole process a little less testing. We will no longer need to submit or receive a formal grievance before submitted an employment tribunal claim.
The whole process is designed to encourage employers and employees settle their differences before resorting to litigation - if only it was that easy. ACAS will even get involved in the pre-dismissal/resignation stage. This is another area in the 'wait and see' box.
To this end I commend you to my book "The Employer's Guide to Grievance and Discipline Procedures Procedures - Identifying, addressing and investigating employee misconduct". Published recently by Kogan Page and available on all the usual shops and websites - Amazon, Waterstones.
Whilst pushing this book I would commend you to read chapter 2 on Proactive Discipline - it has the potential to save a lot of time and effort!!!
If you do buy a copy, let me know what you think.
Monday 30 March 2009
Thursday 22 January 2009
A decision on annual leave.
On Tuesday 20th January 2009, The Advocate General of the European Court of Justice handed down her opinion in Stringer v HM Revenue and Customs, the case formerly called Ainsworth and others v Commissioners of Inland Revenue [2005]. The matter was referred by the House of Lords to ask whether Article 7 of the EC Working Time Directive means that workers on long-term sick leave who have exhausted their entitlement to sick pay must still receive minimum statutory annual paid leave. The ruling was requested by the House of Lords to clear up confusion surrounding what rights workers have when they are on long-term sick leave.
The answer, and it cannot be appealed any further, was that a worker has a right to paid annual leave that accrues while off sick, although they cannot take that paid annual leave during their sick leave.
The European Court of Justice declared: "A worker does not lose his right to paid annual leave which he has been unable to exercise because of sickness. He must be compensated for his annual leave not taken.”
"The entitlement to annual leave of a worker on sick leave duly granted cannot be made subject to the obligation actually to have worked in the course of the leave year laid down by a member state."
Incidentally this only applies to statutory annual leave, i.e. what is now 24 days and will be 28 days in April 2009. Unless an employer agrees otherwise, they could lose any leave over and above the statutory minimum.
Employees should still accrue paid days off even if they are unable to work, the judgement said, because their rights and job benefits cannot be dependent on how well they are.
They must also be allowed to take time off that they built up while ill the previous year, and receive a payment in lieu of days off if they leave a job having been unable to take their full complement of paid leave or, presumably where the employer agrees, carry the leave over.
It also means that an employee who quits or loses their job while on sick leave is entitled to a lump sum payment in lieu of holidays accrued but not taken while they were sick, on top of any redundancy or termination payment.
One leading lawyer said: "The decision will have serious financial and practical ramifications for employers across the UK and Europe. In these difficult times, further constraints could prove too much for some businesses struggling to keep up with existing requirements.”
The decision will need to be ratified by the House of Lords but they have little option to change it.
All employers will need to review their policies and procedures relating to annual leave.
The answer, and it cannot be appealed any further, was that a worker has a right to paid annual leave that accrues while off sick, although they cannot take that paid annual leave during their sick leave.
The European Court of Justice declared: "A worker does not lose his right to paid annual leave which he has been unable to exercise because of sickness. He must be compensated for his annual leave not taken.”
"The entitlement to annual leave of a worker on sick leave duly granted cannot be made subject to the obligation actually to have worked in the course of the leave year laid down by a member state."
Incidentally this only applies to statutory annual leave, i.e. what is now 24 days and will be 28 days in April 2009. Unless an employer agrees otherwise, they could lose any leave over and above the statutory minimum.
Employees should still accrue paid days off even if they are unable to work, the judgement said, because their rights and job benefits cannot be dependent on how well they are.
They must also be allowed to take time off that they built up while ill the previous year, and receive a payment in lieu of days off if they leave a job having been unable to take their full complement of paid leave or, presumably where the employer agrees, carry the leave over.
It also means that an employee who quits or loses their job while on sick leave is entitled to a lump sum payment in lieu of holidays accrued but not taken while they were sick, on top of any redundancy or termination payment.
One leading lawyer said: "The decision will have serious financial and practical ramifications for employers across the UK and Europe. In these difficult times, further constraints could prove too much for some businesses struggling to keep up with existing requirements.”
The decision will need to be ratified by the House of Lords but they have little option to change it.
All employers will need to review their policies and procedures relating to annual leave.
Friday 9 January 2009
Into 2009 – if we must!
Can I take this opportunity to wish all my readers a Happy New Year. I know some people read this blog because they point out spelling mistakes!
Many of my clients are undertaking or talking about redundancies, short time and lay-offs. My advice is to check before you take any action. There have been several issues in respect of pregnant employees, those on maternity leave and also age related selection. A recent case (Rolls Royce v Unite [2008]) decided that last-in-first-out (LIFO) is not appropriate as it could be age discrimination.
Did you realise that as from October 2008 employees on maternity leave are now entitled to the full range of company benefits throughout their mat leave – a maximum of 52 weeks. By the way, the proposed extension to mat leave and pay has been shelved until April 2010.
Do not forget that minimum statutory paid holiday entitlement increases to 28 days or 5.6 weeks as from April 2009. This can include public and bank holidays.
If you have any specific topics that interest or annoy you let me know.
Many of my clients are undertaking or talking about redundancies, short time and lay-offs. My advice is to check before you take any action. There have been several issues in respect of pregnant employees, those on maternity leave and also age related selection. A recent case (Rolls Royce v Unite [2008]) decided that last-in-first-out (LIFO) is not appropriate as it could be age discrimination.
Did you realise that as from October 2008 employees on maternity leave are now entitled to the full range of company benefits throughout their mat leave – a maximum of 52 weeks. By the way, the proposed extension to mat leave and pay has been shelved until April 2010.
Do not forget that minimum statutory paid holiday entitlement increases to 28 days or 5.6 weeks as from April 2009. This can include public and bank holidays.
If you have any specific topics that interest or annoy you let me know.
Friday 19 December 2008
Employment in 2009
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!
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!
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.
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