Employment Law Update – Autumn 2009

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National Minimum Wage Increase As of 1 October 2009 the following rates apply:
Adults aged 22 or above: £5.80 18 to 21 year olds: £4.83 16 and 17 year olds: £3.57

You should also bear in mind that apprentices under the age of 19, or over the age of 19 and in the first 12 months of their apprenticeship, do not qualify for the national minimum wage.

Beware the Workplace Bully! Employers can be liable for the actions of employees who bully and harass fellow employees. The Protection of Harassment Act 1997 is widely known to protect people from nuisance individuals, but the recent case of Majrowski v Guy’s and St Thomas’ NHS Trust has highlighted the serious risk to employers being held accountable for acts carried out by staff.

There is no definition of harassment as such under the Act but the scope is wide. It must involve more that one incident and includes treatment that simply causes alarm and distress to another.
In Majrowski an employee, who had since been dismissed by the Trust, made an allegation that he was subject to bullying by his departmental manager back in 1998. The case went to the House of Lords where their Lordships found that if the bullying occurred during the course of his employment then the employer is vicariously liable for the employees’ actions.
The Court considered it appropriate for employers to pay compensation as they will generally be in a better financial position and it will encourage them to promote standards of good practice among their employees! This is a stark warning to beware of the workplace bully as it could cost you. Ensure that your handbook is kept updated with regard to harassment policies, create clear guidelines and ensure employees are aware of them. Even more worrying is the 6-year limitation period to bring such claims through the Courts, as opposed to the standard 3 months for unfair dismissal and discrimination in the Employment Tribunal. It is also worth checking whether your insurance policies would cover such a claim.

No Smoking! Most are aware that the law is set to change dramatically in 2007 when smoking will be banned in public places. Currently there is no legal requirement to ban or restrict smoking in the workplace apart from a duty to control passive smoking, but the 2007 Health Bill will completely ban smoking in the vast majority of public spaces and workplaces. From next summer, this will include a total ban on the provision of smoking areas at work. Below are some handy reminders: All work premises must be smoke free if enclosed or substantially enclosed. You must display appropriate ‘No Smoking’ signs. Company cars must be smoke free as it is implied that more than one employee will use the car. Unless your employees are lucky enough to have convertibles! Introduce or update your Smoking Policy. Consider offering support to those that wish to give up smoking. If you do not comply with the legislation then you could be hit financially. Failure to display a ‘No Smoking’ sign could result in a fine of £200. And if you fail to take reasonable steps to prevent smoking (displaying a sign is not enough) then you could be liable for a kingsize fine of £2,500. To ensure you are compliant we suggest that you review your existing practices and seek further advice.

164 Million Days Sickness A recent survey of 400 organisations has revealed that staff absences cost 13 billion pounds in 2005. This represented a total of 164 million days lost in sickness across the United Kingdom’s economy. It was also interesting to note from this survey that the absence levels in the public sector were 30% higher than that of the private sector. Although we hope the majority of these absences are genuine there are occasions where employees are dishonest. Employers have a right to carry out a proper investigation where there is suspicion. We recommend that you keep a clear record of absences and hold return to work interviews.

Lifting the Veil Since Jack Straw MP made his now infamous comments about Muslim women and the wearing of veils there has been much debate on the subject. An Employment Tribunal recently found in Azmi v Kirklees Metropolitan Council that a Muslim classroom assistant, suspended by her employer for refusing to remove her veil, was not discriminated against either directly or indirectly under the Employment Equality (Religion or Belief) Regulations 2003. It was decided that the employer had a legitimate aim in giving the instruction to remove, which was that face-to-face communication was essential for Ms Azmi’s job as a bilingual support worker. There was however a lesson (no pun intended) for employers to take from this case. The Employment Tribunal agreed with the employee that she had been victimised in the way her sickness and grievance had been dealt with and awarded her increased compensation.

April Fools Day & Maternity New family friendly laws mean that women who have an expected date of childbirth on or after 1 April 2007 will be entitled to 9 months as opposed to 6 months Statutory Maternity Pay, Adoption Pay or Maternity Allowance. The new Regulations promote ‘keeping in touch days’ where an employee may attend up to 10 days at work or on training whilst on maternity leave without losing the right to maternity pay. There will no longer be a qualifying period for additional maternity leave and the notice employees must give when returning to work after additional maternity leave is extended from 4 to 8 weeks. A further increase to 12 months Statutory Maternity Pay, Adoption Pay and Maternity Allowance looks likely in the not too distant future, as does the right to additional paternity leave.

Are they really Fixed Term Employees? Do you employ people on fixed term contracts? If so then be aware that from 10 July 2006 your employees may be classed as permanent staff. Those that have 4 years continuous service and who are on a second or subsequent successive fixed term contract will automatically be granted permanent employee status. Length of Service has implications for amongst other things, notice periods, redundancy payment and of course the right to bring an unfair dismissal claim; so when in doubt treat employees as permanent.

Part-time Employees and Bank Holidays In McMenemy v Capita Business Services Ltd the Employment Appeal Tribunal (EAT) reminded us that part time workers whose usual working days do not fall on bank holidays may be treated unfairly when compared with full timers whose days do fall on bank holidays meaning they get additional paid time off. In this case the company operated a 7-day week and the employee worked on Wednesdays, Thursdays and Fridays. The Contract of employment provided that they could take public holidays when they fall on a normal working day. The Claimant lost the case as, although he had not received the benefit of paid time off for Monday bank holidays, the reason for this was not that he was a part-time worker but because he did not work on Mondays. The Company employed full-time workers who also did not work on Mondays and so were in a comparable situation to that of the Claimant. At the appeal, upholding the Tribunal’s decision, the EAT emphasised that the Claimant was in no worse a position than full-time workers who did not work on Mondays as they did not receive time off for those bank holidays either. However it is important to note that the decision was due to the structure of the Company’s 7-day working week. Where a normal 5-day week is operated it is likely that part-timers will be viewed to have been treated unfairly.

Old and Dynamic In our last update we discussed the Employment Equality (Age) Regulations 2006, which have now been in force since 1 October 2006.

The new Regulations outlaw direct and indirect age discrimination in employment and vocational training and make special provision for harassment and victimisation on the grounds of age.

  • This includes actual and perceived age of all workers.
  • They introduce a default retirement age of 65.
  • Retirement is a potentially fair reason to dismiss, provided new retirement procedures are followed.
  • Unfair Dismissal claims can now be brought by those over 65 years old.

Claims could arise from the content of job advertisements, like the well known Irish case that deemed the phrase ‘young and dynamic’ as discriminatory against older workers. There is also a risk of claims due to treatment at the interview or selection stages and within training and promotion. There is scope for employers to justify decisions on grounds such as economic factors, along with business needs and efficiency but until we see the first cases you are advised to be over-cautious.

Awards to staff based on service could amount to indirect age discrimination because older workers are more likely to have the required length of service compared to younger workers. There is an exemption enabling awards using the criteria of length of service of between 1 and 5 years, but above 5 years service you must show that it fulfils a business need, such as encouraging loyalty. To avoid claims you must update your Discrimination, Harassment and Equal Opportunities Policies to include ‘age’ and introduce a Retirement Policy. There are now obligatory procedures to follow when dismissing for reasons of retirement, such as notifying an employee of the intended retirement date between 12 and 6 months before the date and informing them of the right to request to work beyond that date. If the procedure is breached a dismissal is automatically unfair. Notice Rights Queries about notice rights are a very common subject of enquiries from our clients so we thought it might be useful to run through some of the basics. There are two types of notice rights, contractual and statutory. The Employment Rights Act 1996 provides minimum notice periods that employers must give to employees and they take precedence over less favourable contractual periods. However if the contractual period is longer then that will prevail. Employees have a right to one week’s notice after the first month and up to two years service, after two years service the period increases by one week and continues to increase by one week every year thereafter, up to a maximum of twelve weeks for twelve years service. Failure to provide correct notice can amount to a claim against you for breach of contract and damages for wrongful dismissal. Notice rights must be set out in your contracts and remember that an employee has a right to a statement of terms and conditions after two months service.

SLEE BLACKWELL – Seeing You Through!

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By signing up to ‘ei’ you can have the peace of mind that comes from knowing that your procedures are fully compliant with the latest law and that if a claim is made against you then there will be nothing more to pay in legal fees.

For more information visit our website www.employerslegalprotection.co.uk or contact the Employment Team by telephone on 01271 372128 or 01392 423000 or by email at [email protected].