Monthly update August 2008
Welcome to BusinessHR's August update! After last month's bumper edition, we were hoping there would be less to report this month but there are still a number of interesting cases with wide-reaching implications to consider.
- Employment law update
- Consultation on dispute resolution
- Increase in number of employment tribunals last year
- Statutory sick pay changes
- Increase to jurors rate
- Some interesting cases
- Broad definition of grievance
- Time limits strictly adhered to
- You do not have to be disabled to claim disability discrimination!
- Sexual harassment - awarded for injury to feelings can be high
- Age discrimination - check your retirement dates!
- National Minimum Wage
- Health and safety update
- Increase in average costs of absence
- Tougher penalties for dangerous drivers
- Work experience
- New on the website
- And finally...
- New website allows employees to rate their employers!
- Widespread redundancies to come?
The government is consulting on amendments to the dispute resolution legislation and other employment law matters and is looking at the following:
- extending the definition of a 'relevant advisor' who can sign off a compromise agreement (to include CIPD members)
- changing the current position on interest accruing on tribunal awards
- broader powers for tribunals to make recommendations in discrimination cases
- with the parties consent, in certain jurisdictions, introducing a procedure for a tribunal chairman to make decisions based on the papers only, without a hearing
- adding holiday pay claims to the list of jurisdictions normally heard by a chairman sitting alone
- revising the tribunal claim and response forms (ET1 and ET3)
- transitional provisions for the abolition of the statutory dismissal and grievance procedures.
Consultation closes on 26 September 2008.
The Tribunals Service Annual Report 2007-08 records a 30% increase in the number of employment tribunal applications received - 189,348 (143,474 in 2006-07).
Of these, 79% were heard within six months of receipt, and 88% of written decisions were issued within four weeks of the hearing.
And ACAS has also issued its annual report. They also reveal an increase - they report 227,782 more claims and potential claims to handle. But 81% of workplaces reported an improvement in employment relations following intervention by ACAS advisers, compared to the 70 per cent target that was set.
As from 27 October, a new and less time consuming SSP1 form will come into use and form SSP1(L) will be scrapped.
The maximum daily rates of the financial loss allowances available to jurors were increased with effect from 2 June as follows:
- First 10 days: four hours or less: £30.64; more than four hours: £61.28
- From 11th day up to 200th day: four hours or less: £61.28; more than four hours: £122.57
- From the 201st day: four hours or less: £107.58; more than four hours: £215.17
Broad definition of grievance
The EAT has held that a statutory grievance is still a statutory grievance, even when the grievance itself states that it is not!
In Procek v Oakford Farms Ltd, Mr Procek presented a grievance which expressly stated that it was informal, and that a failure to address it would result in a formal grievance being lodged, under the 2004 Regulations. This never happened.
The EAT decided that the letter was still a valid grievance which satisfied the requirements laid down for a Step 1 grievance letter (which require the grievance to be set out in writing and sent to the employer).
They did say however, that tribunals in such cases have the discretion not to apply any uplift - the argument in this case being that it would be unfair on the employer to face a statutory uplift in compensation when he did not realise that the grievance (which he ignored) was a "statutory grievance".
Time limits strictly adhered to
We reported previously the case of Beasley v National Grid, where the ET1 was presented 88 seconds too late to meet the deadline.
The tribunal, then the EAT and now the Court of Appeal have all confirmed that this was too late.
Discriminatory job advertisements are unlawful direct discrimination
The European Court of Justice (in Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV) decided that a job advert by a Belgian company stating that it did not employ Moroccans because its clients did not like dealing with them could be direct discrimination on grounds of race. They said that the advert set up a presumption that the employer's recruitment process was tainted by discrimination. The statement in the advert could put off potential applicants from applying and thus hinder their access to the labour market. The burden of proof then shifts to the employer to show that its actual recruitment practice does not correspond to that stated in the advert - not easy to do!
This ruling overturns a previous UK case (Cardiff Women's Aid v Hartup) where the EAT had decided that a job advertisement indicated an 'intention to discriminate' but was not an act of discrimination itself. It fell outside the discrimination legislation and so an individual could not bring a claim based on such an advert.
Until now, proceedings could only be brought by the CEHR on grounds of sex, race or disability (although currently not age, religion/belief or sexual orientation) - it seems now that individuals can bring claims as well. Even if the candidates who complain may not have got the job (for legitimate reasons), there could still be significant injury to feelings.
You do not have to be disabled to claim disability discrimination!
The ECJ has reached its decision in Coleman v Attridge Law and has confirmed that the Equal Treatment Framework Directive is intended to prohibit associative discrimination in the context of direct discrimination and harassment. It aims to protect people from discrimination on grounds of age, sexual orientation, religion and belief, as well as disability - without them having to be of that age/sexual orientation/religion/disability themselves.
Sharon Coleman, who is not disabled herself but whose young son is disabled, alleged that she had been directly discriminated against, and harassed by her employer. On return from maternity leave, she was not allowed to return to her original job, her flexible working requests were refused, and she was accused of being lazy and using her son's illness to get time off work. She claimed constructive dismissal and less favourable treatment on the grounds that she was the mother and primary carer of a disabled child.
Her former employer was a law firm, not a public body, so, unlike a public sector employee, she does not have the direct protection of the Directive. The next stage in her case will therefore be for the employment tribunal to consider if the Disability Discrimination Act 1995 (DDA) can be read purposively, so as to conform with the intent of the Framework Directive which it is supposed to implement. The DDA, unlike other discrimination regulations which talk about discrimination "on the grounds of ...", has different wording, and provides protection from discrimination "for a reason which relates to the disabled person's disability". So the DDA may have to be amended! Our age discrimination regulations also may need amending similarly.
Ms Coleman has not tried to argue that she should be placed in the same position as those with a disability and for whom employers are obliged to make reasonable adjustments to their working arrangements. Indeed the ECJ recognised that, unlike direct discrimination and harassment, reasonable accommodation has to be focused on the disabled person and getting or keeping them in work.
But lawyers are warning that this case may lead to an increase in such claims. Defending an allegation that an employee has faced less favourable treatment on the grounds of their caring responsibilities which amounted to disability discrimination, is a much greater challenge than defending the refusal of a flexible-working request.
Now might be a good time to review your equal opportunity and flexible working policies and ensure employees know that discriminatory behaviour, whether it is aimed at an employee's own characteristic or that of somebody they are "associated with" (eg their family or friends), will not be tolerated.
Sexual harassment - awarded for injury to feelings can be high
We report on this case because of the size of the payment for injury to feelings.
Stephen Price was employed at the Presbyterian Church in Wales for less than year, and claimed constructive dismissal and sexual harassment. Alleging that he was constantly teased about his sexuality by his 40-year-old "sex obsessed" female boss, he claimed every conversation he had with her turned to sex, involving innuendos or double entendres.
He was awarded £11,924 for constructive dismissal and £25,000 for injury to his feelings.
Age discrimination - check your retirement dates!
Do check the clause in your contract relating to retirement. Our template contracts on the website are fine, but we've seen contracts that say staff will retire "at the beginning of the month/the week in which your 65th birthday falls....". IF the date is AFTER the 65th birthday, then no problem - but if it falls before then you may wish to amend this.
In Plewes v Adams Pork Produce Limited, the employer retired Mr Plewes on the day before his 65th birthday. The tribunal found that the default retirement exemption only applies where the employee retires on or after their 65 birthday. Mr Plewes' dismissal took effect before before his 65th birthday so they could not rely on the retirement exemption, nor could they objectively justify the retirement. Despite gaining alternative work through an agency within two weeks of his retirement. Mr Plewes' award was over £36,000 - not bad compensation for what could have been a fair dismissal one day later!
National Minimum Wage
Another case which confirms that all hours spent asleep, but on site, should be paid at at least the NMW rate. In Burrow Down Support Services v Rossiter, Mr Burrow was a night watchman, but, unusually for watchmen, he was allowed to sleep during his shift, using facilities provided to him for this. The tribunal decided that the NMW must be paid for every hour of the shift and that Mr Burrow was actually at work for the whole shift, even when sleeping.
Increase in average costs of absence
According to the latest CIPD Absence Management Survey, the average cost of absence has increased to £666 per employee per year. Average absence was found to be 8 days per employee per year.
Drivers sentenced on or after August 4 will be subject to stricter guidelines on sentencing. These do not alter the legal maximum penalties, but will increase the length of jail terms imposed by judges and magistrates, especially for the most dangerous drivers.
The guidelines, issued by the Sentencing Guidelines Council cover four offences:
- causing death by dangerous driving
- causing death by careless driving under the influence of alcohol or drugs
- causing death by careless driving
- causing death by driving while unlicensed,disqualified or uninsured.
The two new offences were introduced by the Road Safety Act 2006.
The Council has recommended that "prolonged, persistent and deliberate bad driving" and consumption of "substantial" amounts of drugs or alcohol should put offenders into the most serious category of "causing death by dangerous driving" and be given jail terms of at least seven years (the maximum is 14 years). Where death follows careless driving, a custodial sentence of up to 3 years is likely. The Council wants the use of mobile phones to be "treated robustly" and advised that an offender distracted by a handheld mobile phone when the offence is committed will be treated as particularly serious - reading or composing text messages while at the wheel may result in up to 7 years in prison.
You might like to warn your staff of this, and remind them of your driving on business or mobile phone policy!
If you have students or school pupils on work experience over the summer, do review your policies and procedures.
Health and safety law defines a child as anyone who is under the minimum school leaving age (MSLA), and a young person is defined as an individual who is above the MSLA but under the age of 18. Employers will need to know the ages of young people on work experience to help them decide what activities they can allocate to them, as certain types of work are prohibited or restricted for children or young workers (such as riding on a tractor).
Students on work experience are considered to be employees so employers are responsible for their wellbeing and, in order to reduce risks and prevent harm, should conduct a thorough risk assessment before allowing them into the workplace. Employers should look at the layout of the workplace, the equipment being used, training requirements and any work hazards such as chemical and physical agents that the young person may be exposed to.
The Health and Safety Executive has just announced that it has fined a coach-building firm £7000 after a 16-year-old apprentice died falling through a fragile roof. The apprentice had been playing football in his lunch hour and had gone on to the roof to fetch the ball.
The Chair of the All Party Parliamentary Group on Occupational Safety and Health has suggested that basic health and safety awareness should be integrated into the National Curriculum. In the last decade, 64 under-19s have been killed and over 15,000 seriously injured in workplace accidents.
A course which is free to all schools and colleges, the Workplace Hazard Awareness Course (WHAC) for year 10 pupils, has been prepared by IOSH, in partnership with the HSE. It may be worth suggesting to the schools from whom you take work experience students, that they should do this before joining you.
In addition our website has a safety checklist for work experience students, together with a guide and a work experience policy.
We have added two new step by step guides, based on last month's hot topic on TUPE transfers - one to transferring in, and one to transferring out:
Can we also remind you of our new premium service? For an extra £100 per year, any policies you generate on our website are then stored on our server. When you want to update your policies a special programme is run automatically which compares your tailored version against our latest template versions, shows you the differences and allows you to update the policy as desired. An update therefore can be done in minutes - easy! See: /intro/premiumservice.html
We are pleased to announce a new business partner - Intuitive Brands. Intuitive Brands work with clients to improve their employee engagement and marry the trust and motivation of engaged employees to the commercial success of the client!
Intuitive Brands will be contributing to our hot topics in future months, so do look out for these. If you are interested in learning more about their service offerings, please keep an eye on the following page: /intro/ourpartners.html
New website allows employees to rate their employers!
A new website, www.WorkRewired.com, allows employees to leave anonymous reviews and job seekers to read inside information on what it's like to work at a company. Visitors to the site can rank companies they've worked at in a number of categories such as pay, opportunity to progress their career and friendliness of co-workers.
Research by accountancy firm KPMG discovered that the majority (53%) of large UK businesses plan to cut jobs in the coming months. 80% of the surveyed organisations were based outside London indicating that the trend is country-wide.
We have also noticed an increased number of calls to our helpline relating to lay off and redundancy. If you are considering such measures, please do use the extensive guidance on our website (legal overview, step by step guide, pay reckoner plus all of the template letters and forms) and consider using the helpline to discuss things through. In an economic downturn, where alternative work is harder to find, if you get things wrong, the risk of a tribunal claim is even greater.
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