• Employment law update
  • Forthcoming changes including the removal of identity cards
  • Company cars - increase in HMRC advisory fuel rates from 1 June 2010
  • 100% increase in fines levied for illegal staff
  • Some interesting cases
    • Discipline: misconduct and liability
    • Dismissal: guidance on delays, failure to follow procedures and investigations
    • Dismissal: redundancy and discrimination - the costs of getting it wrong
    • Equal pay claims
• Health and safety news
  • The cost of dehydration
• New on the website
• And finally....
  • Guidance on managing during the world cup
• BusinessHR introduces HRCare services
• This month's hot topic

Given the lengthy newsletters over the past few months, this one comes as light relief! There has been so much new law over past years, that it is encouraging to see the new government planning to reduce this, rather than add to it! (Although see below, and also note that the repeal of the statutory dispute resolution procedures last April still seemed to create quite a bit of work for those in HR, as procedures needed to be amended, letters needed changing, contracts which referred to this had to be changed, managers had to be trained and briefed and we all needed to remind ourselves of what we did prior to the procedures - so maybe not quite so straightforward as we think!)

The first piece of new legislation is the Identity Documents Bill 2010-11. If passed, this will repeal the Identity Cards Act 2006 and invalidate all existing national identity cards on 3rd September 2010. Those who paid £-30 for a card (around 15,000 people) will not get a refund. The National Identity Register will cease to exist.

What else seems likely to change?

The Queen's Speech covered the next 18 months only. However, the government stated that it intends to "review employment and workplace laws, for employers and employees, to ensure they maximise flexibility for both parties while protecting fairness and providing the competitive environment required for enterprise to thrive". Hopefully any changes will reduce "red-tape" and simplify current legislation rather than add to it.

Things which seem likely to change:

• employment tribunal system - steps to make it more accessible and fair
• the vetting and barring scheme - making it less onerous
• pay and bonuses - a short-term limit or freeze on public sector pay (whilst protecting those on low incomes) and rules to curb bonuses within the financial services sector
• retirement age and pensions - the abolition of the default retirement age, a review of public sector pensions and an increase in the state pension age. The latter will not rise above 65 until at least 2016 for men and 2020 for women, but rather than then rising to 68 by 2046, could well both increase earlier and to a higher age.
• agency workers - the forthcoming regulations may be reduced so that they still comply with the European Directive, but don't go beyond this
• Equality Act - the implementation may be delayed, especially the provisions covering positive action in recruitment and gender pay reporting in the private sector.

Watch this space!

The HMRC has revised its advisory rates for those who drive company cars. These rates apply to all journeys on or after 1 June 2010, although employers may use either the previous or new current rates until 1 July.

Engine size:

• Less than 1400cc: 12p (petrol); 11p (diesel); 8p (LPG)
• 1401cc- 2000cc: 15p (petrol); 11p (diesel); 10p (LPG)
• Over 2000cc: 21p (petrol); 16p (diesel); 14p (LPG)

(Note: petrol hybrid cars are treated as petrol cars.)

There seem to be no plans to review the rates for those who use their own vehicles for business mileage - these have been unaltered for a number of years now.

Those who read our hot topic last month will now be completely au fait with the range of possible pre-recruitment checks, but just to re-emphasise the requirement to check that all new workers are entitled to work in the UK and to keep a copy of their documentation proving this.

Fines levied by the UKBA doubled last year, with the UKBA imposing 2,210 civil penalties with fines totally £22.1m. (In 2008, 1,164 penalties were issued and in 2007 (before the fixed penalties came in) there were just 38 prosecutions for employing illegal immigrants.)

If you need further information, read our page on checking the right to work in the UK: /docs/legal/righttowork.html and our guide to pre-recruitment checks: /docs/guides/checks.html

Discipline: misconduct and liability

Are you always liable for the behaviour of your employees?

Most of us are aware that an employer can be held vicariously responsible for the actions of its employees in the course of their employment, and of the risks of this, not just in the workplace, but also at Christmas parties and other social events.

However, in Wilson v Exel UK Ltd, Exel was not held responsible for the behaviour of one of its employees (Mr Reid) towards another employee (Ms Wilson), despite the fact that the actions took place in the workplace, during working hours and were carried out by a supervisor towards a junior employee.

Ms Wilson was injured following an incident of horseplay where Mr Reid is alleged to have crept up behind her, grabbed her pony-tail and pulled her head back, making a 'ribald remark' as he did so. She therefore claimed damages against Exel.

Both the Sheriff and the Inner House of the Court of Session (this was a Scottish case) rejected her claim. To find an employer vicariously liable for the actions of its employee, the actions have to be so closely connected with the employment that it would be "fair and just" to do so. Mr Reid's actions were not considered to be "inextricably interwoven with the carrying out of his duties as supervisor...." They were "an unrelated and independent venture of his own: a personal matter, rather than a matter connected to his authorised duties". The fact that this happened at work and during working hours was not enough to make Exel vicariously liable.

Dismissal: guidance on delays, failure to follow procedures and investigations

Some guidance from both the EAT and the Court of Appeal on disciplinary situations!

Employers facing disciplinary situations where an employee is also being investigated by the police are often caught in a dilemma - if they take disciplinary action too quickly, this may prove to be too hasty; if they delay, they may compromise their stance.

In Secretary of State for Justice v Mansfield, the EAT advised that the employer has wide discretion on whether to continue or postpone the disciplinary hearing. Mr Mansfield, a prison officer, was suspended on full pay and faced a disciplinary investigation relating to allegations of planting drugs; this was postponed during the police investigation into the same allegations. The police investigation lasted for almost a year and did not result in a conviction. The internal disciplinary investigation was resumed and Mr Mansfield was dismissed for gross misconduct. He brought an unfair dismissal claim.

The tribunal found his dismissal unfair. The EAT however overturned this decision, and said the delay could not properly be criticised as unreasonable and that the original tribunal should not have considered who they believed in respect of the misconduct, but should have confined their views to whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal.

The EAT has also given some more advice to tribunals assessing the penalty (up to 25%) for an employer's failure to follow a fair disciplinary procedure. In Lawless v Print Plus, they advised that the tribunal should take into account whether:

• the procedures were ignored altogether or applied to some extent
• the failure to comply with the procedures was deliberate or inadvertent
• there are any mitigating circumstances.

And finally, the Court of Appeal has also given some guidance - this time on disciplinary investigations. In Salford NHS Trust v Roldan, they said that the more serious the consequences of dismissal, the more careful the investigation should be. In this case, dismissal would mean the employee would be deported. An employer who faces a conflict of evidence between two witnesses does not have to believe one and disbelieve the other, but may choose to give the alleged wrongdoer the benefit of the doubt.

Dismissal: redundancy and discrimination - the costs of getting it wrong

There have been a couple of high profile cases of redundancy selection - largely because of the sums potentially involved.

Firstly, at accountants PricewaterhouseCoopers. An equity partner, Colin Tenner, was dismissed on grounds of redundancy whilst on sick leave. He was absent with stress and anxiety as a result of the attitude of some of his clients and had asked for assistance. Mr Tenner alleges that the redundancy is a "sham" and that the managing partner of the Northern Ireland office once said to another colleague that "real partners simply do not get sick" when he had learned that Mr Tenner had taken two days' sick leave in January 2007. Mr Tenner, who has been diagnosed as suffering from stress, chronic fatigue, acute anxiety and severe depression, believes his dismissal was due to his mental health problems. He is claiming disability discrimination and is seeking compensation for future loss of earnings for a period of 15 years.

Secondly, at law firm Eversheds. When selecting for redundancy, two employees (Mr de Belin and his colleague Angela Reinholz) were scored against selection criteria which included financial performance, disciplinary history and absence record. Mr de Belin's score was half a point lower and he was therefore made redundant. He subsequently discovered that Ms Reinholz had been given the maximum notional score for her ability to swiftly secure 'lock-up' payments from clients, even though she was absent on maternity leave. All other scores were actual scores, not notional ones.

He therefore felt that her score had been 'unfairly inflated'. So Eversheds' caution in not selecting the pregnant employee resulted in a claim for sex discrimination from her colleague!

Mr de Belin was awarded £123,000 in damages. Eversheds has lodged an appeal against the ruling and this case is estimated to have cost them a substantial amount in legal fees. The irony is that Ms Reinholz was herself dismissed in the next round of redundancies!

Equal pay claims

Confirmation from the EAT, in City of Edinburgh v Wilkinson & ors, that there is nothing to stop white collar claimants from using manual workers (who earned bonuses) as their comparators.

The Council had argued that the manual workers were not valid comparators because they were not employed at the same establishment or on common terms and conditions.

The EAT said:

• A council is a single establishment for pay purposes.
• Even if not employed at the same establishment, there were common terms and conditions between the claimants and their chosen comparators.
• A broad approach is required when determining the issue of 'same employment' and the definition of 'establishment' and should not be limited to considering whether the work is undertaken at a single geographical location.
• The Council should be considered the 'single source' of any unequal pay because they set the pay terms of both parties.

A timely warning now that we're enjoying some warmer weather!

A national workplace survey has found that many of us are regularly dehydrated at work, resulting in decreased energy and lower performance. Being just 2% dehydrated can reduce concentration levels by up to 20%. The "Keep It Light!" health campaign aims to educate us and encourage healthy habits. For more details see: www.keepitlight.org/

Bear in mind that whilst there is still no maximum temperature at work (only a minimum), working in hot temperatures can increase stress, irritability and reduce productivity. Read our guide to managing in hot temperatures: /docs/hasaw/heat.html

We didn't run a hot topic on this because we've covered this in some detail in the past, but for those who aren't aware that life will change on 11 June, and who are not prepared, our previous guidance is now available on: /docs/guides/events.html

Finding it difficult to keep abreast of all of the above changes?

Why not let us help you? We can review your contracts, handbook and HR policies, advise on any suggested additions and update them for you - and then keep them updated. Take a look at our HRCare range of services: www.businesshr.com

We are looking to expand further and need people to assist us with our business development on a regional basis. As this would be on a self-employed, commission basis, we are therefore looking for people who already have an established business base, good networking skills and a knowledge of HR or business consulting and who feel they could help us grow our business.

If you are interested, call our MD, David Lennan, on 07736 775767 for an informal chat, or email him at david.lennan@businesshr.com.

This month's hot topic will cover social networking sites - how you can make the best use of them, and how to minimise the risk from your employees' use of them!

Note: hot topics are only sent to subscribers. If you receive our newsletters only and are interested in subscribing to our wider services, please take a look at /intro/index.html