Just a reminder that next month sees increases in SMP (which increases to £117.18 per week, previously £112.75) and SSP (which increases to £75.40 per week, previously £72.55).

Also note that the scope of both the Information and Consultation of Employees Regulations 2004 and also the 2006 Regulations in relation to consultation on occupational pension schemes are extended for businesses employing 50 or more employees in April. For more information on the former, please see: /docs/legal/consult.html and /docs/guides/workforce.html.

The Government is proposing to develop a "fast-track" to settle the following types of claim:

• unlawful deductions from wages
• breach of contract
• redundancy pay
• holiday pay
• national minimum wage claims.

These will probably be determined by an employment judge sitting alone, rather than the full tribunal comprising judge and two lay members. We'll update you once we learn more.

We've waited for a long time for this case to go to the Court of Appeal in the hope of a more definite ruling about the status of agency workers and whether they become employees of the end-user, only to be told that actually, it's up to the tribunals, on the basis of the facts in front of them, to determine their status!

The case in question, James v Greenwich Borough Council, went to the Court of Appeal last month. Ms James signed up with an employment agency who placed her at the London Borough of Greenwich for a period of three years. In 2003, she moved to a different agency which paid a better hourly rate but she continued to work at Greenwich. In August and September the following year she was off sick. During this time she was replaced by another agency worker, and when she was fit to return, she was told that she was no longer required because the agency had sent a replacement. Ms James subsequently brought a claim for unfair dismissal and therefore had to establish that she was an employee of the Council.

Written agreements between her and both agencies stated that she would carry out work as a self-employed temporary worker and that her work would not give rise to a contract of employment between herself and the end user. She was not entitled to the Council's sick pay or holiday pay provisions and was paid by the agencies. Greenwich's disciplinary policy did not apply to her, and they were not obliged to provide her with any work.

Ms James' work arrangements were set out in two written agreements: one (which described her as a self-employed worker) between herself and an employment agency, the other between the agency and the council.

The original tribunal decided that, despite the fact that she had worked for the council for several years, Ms James was not their employee and dismissed her claim.

On appeal, the Employment Appeals Tribunal agreed and decided that it will rarely be appropriate to imply a contract between the worker and the end-user where the agency arrangements are genuine, so long as they accurately reflect how the work is actually being performed. They said the key question was: "is the way in which the contract is, in reality, performed consistent with the agency arrangements?"

The Court of Appeal agreed and said that the employment tribunal should decide - as a question of fact - whether it is necessary to imply a contractual relationship between agency worker and end-user. If a contact between the worker and an employment agency is sufficient to explain the employment relationship, then there will be no need to imply a further contract of employment between the end user and the worker. They dismissed Ms James' appeal and upheld the original tribunal's decision. They also made it clear that it was not their responsibility to extend employment protection rights to agency workers and any changes in this area would have to come from Parliament.

Other cases (eg Harlow District Council v O'Mahoney and National Grid Electricity Transmission Plc v Wood) have found that the agency workers were really employed by the end-user. But in both of these cases the workers negotiated changes to their terms of engagement directly with the end-user (rather than the agency that supplied them).

So care still does have to be taken to ensure that agency workers are not treated as employees, so our normal advice stills stands (ensure that your documentation is with the agency, and that there is an express statement saying that the worker is an employee of the agency and not of your business; resist the temptation to use the same individuals for long periods of time; ensure that any problems with performance/conduct are dealt with by the agency; holidays etc should be booked with the agency; payment arrangements should be negotiated with the agency and not with the workers etc).

In the meantime, the debate regarding increasing rights for agency workers continues and the government is coming under mounting pressure from trade unions and Labour backbenchers to give greater rights to agency workers.

For further information on agency workers, see: /docs/legal/agency.html

Are women undergoing IVF protected by maternity legislation?

The European Court of Justice has been considering this in an Austrian case, Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG and ruled that it is sex discrimination to dismiss a woman because she is at an advanced stage of in-vitro fertilisation treatment.

Ms Mayr was undergoing a course of IVF treatment when she was given notice of dismissal. At that time her eggs had already been fertilised in vitro though they had not yet been transferred or implanted. She argued that she was pregnant at the time she was dismissed and that her dismissal was therefore unfair.

The ECJ ruled that the protection given to a 'pregnant worker' under the Pregnant Workers Directive could not apply before the embryo has been transferred. (Embryos can remain frozen for many years before implantation - so this would have given a very broad protection, far beyond that originally envisaged by the directive.) But they did rule that a dismissal of a woman because she is in the later stages of fertility treatment would be unlawful direct sex discrimination under the European Equal Treatment Directive (as only women can have this).

Additional paternity leave and pay - a few more details

The government has now considered the comments it received in response to its consultation on the proposed administrative procedures for additional paternity leave (APL) and pay and has responded as follows:

• to reduce the risk of fraud, the HMRC will carry out compliance checks and may impose financial penalties where it can be shown that claimants either fraudulently or negligently make a claim
• following a request for APL, an employer will be required to confirm the employee's entitlement within 28 days of receipt
• the SC3 self-certificate will be amended to cover additional paternity leave and pay. It will be compulsory to complete a form containing all the required information - whilst employers may produce their own substitute versions of the form, these must contain, as a minimum, the information on the standard HMRC form.
• completion of an eligibility checklist by employers will not be mandatory but is strongly recommended as employers will still need to satisfy themselves (and potentially also HMRC) that they have carried out the necessary checks for compliance purposes.
• if the employee wishes to change the start and/or finish date for APL, six week's notice will be required. Employers may agree to a shorter notice period if they wish.
• if the employee seeks to change the start of APL without giving the full six week's notice and the change cannot reasonably be accommodated by his employer, the employer may insist that leave is taken at the previously agreed times.

The full response can be read at www.berr.gov.uk/files/file44293.pdf

The Government has also now completed its consultation on its proposed new scheme for barring unsuitable people from working with children and vulnerable adults. This scheme will start to come into force this autumn.

It will be run by the newly-established Independent Safeguarding Authority and there will be two barred lists: one for those barred from working with children and another for those barred from working with vulnerable adults. Individuals will be barred automatically if they are convicted or cautioned for certain offences or can be barred following a decision by the ISA.

Employers and parents will be able to make an online check with the CRB that a prospective employee is a member of the scheme and thus not barred.

Penalties for failing to make the necessary checks, or for recruiting people who are not members of the scheme, include fines of up to £5000.

For more general information about working with children and vulnerable adults, see /docs/guides/child.html

Expired disciplinary warnings - perhaps they now can still count!

Can an expired final written warning be used in a dismissal? Normally, the answer would be no - once the warning has expired, it should be ignored. The Court of Appeal, in Airbus UK Limited v Webb, has however relaxed this a bit.

In 2004, Mr Webb, an aircraft fitter, was dismissed for gross misconduct (he was allegedly washing his car when he should have been working). He appealed and the penalty was reduced to a final written warning, which was to remain on his record until the end of August 2005 (12 months). He was also sent a letter stating that any further misconduct was likely to lead to his dismissal. A month after the FWW expired, he was among a group of employees accused of watching television, again when they should have been working. Mr Webb was subsequently dismissed, whilst the other employees, who had no prior disciplinary record, were given a final warning.

The tribunal decided that this was automatically unfair because previous case law prevented the employer from taking into account a previous spent warning. The Employment Appeal Tribunal agreed. Airbus clearly felt sufficiently aggrieved not to give up, and took the case to the Court of Appeal.

The Court of Appeal said that consideration should be given to whether the employer 'acted reasonably' when deciding the fairness of a dismissal. They decided that such past misconduct could be included with all the other circumstances that were relevant when deciding whether the employer had acted reasonably. Where an expired warning is the principal reason for the dismissal, the dismissal will be unfair. In Mr Webb's case, however, he was dismissed because of his gross misconduct. The expired warning was not the reason for Mr Webb's dismissal; but was relevant to why he was dismissed whereas his colleagues were given a final warning.

The Court did caution employers that exceptional circumstances were needed for such dismissals to be fair and the misconduct that was the subject of a previous final written warning had to be of a similar nature. The employer must have a good reason for dismissal in the first place, for example gross misconduct, before taking into account such past misconduct. And much caution is needed - so we advise that the best course of advice would really be to give longer or indefinite warnings where appropriate.

Note also that this ruling conflicts with a decision of the Court of Session in Diosynth Ltd v Thomson giving tribunals in Scotland apparently conflicting decisions to contend with. The Court held that the cases were different, because Mr Webb was found guilty of gross misconduct. The disciplinary record of Mr Webb (and the other four employees) was only considered by the Company in relation to mitigation. In Diosynth, however, the employer would not have had a justifiable reason to dismiss the employee in the first instance if they had not taken into account the previous warning.

Discrimination - is homophobic banter grounds for a successful claim?

You (and we) would probably have thought so, but in an interesting case, the EAT decided that homophobic banter against a heterosexual man is NOT prohibited under the discrimination regulations.

In English v Thomas Sanderson Blinds, Mr English complained of being subjected to sexual innuendo by his colleagues to the effect that he was homosexual. His colleagues knew he was not but based their banter on the fact that Mr English had attended a boarding school and lived in Brighton.

Because the colleagues did not genuinely believe that Mr English was gay, the EAT decided, on a technicality, that the 2003 Sexual Orientation Regulations did not protect him. He would only be protected if he had been harassed on "the grounds of sexual orientation" either because of his actual sexual orientation, his perceived sexual orientation, the sexual orientation of others (eg family members) or because he failed to discriminate against another on the grounds of sexual orientation. (So had he been gay or his colleagues had genuinely thought he was gay, he could of course have brought a successful claim.)

The Regulations do not therefore properly implement the EC Equal Treatment Framework Directive, under which he would have been protected. The case was therefore allowed to be appealed to the Court of Appeal which may result in amendments to the Regulations to widen their scope.

Mr English was clearly harassed and may have been better off bringing a claim under the Protection from Harassment Act instead. Harassment has a very wide definition - someone engaging in "unwanted conduct which has either the purpose or effect of violating someone else's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment".

This case is interesting, because most of us would have probably considered that Mr English would have succeeded. It's also timely, because a new survey found that such banter is a growing problem - since the regulations were introduced in 2003, the use of potentially harmful, un-politically correct office banter has almost doubled with 84% of workers in the survey claiming to have overheard racial comments and discriminatory remarks towards fellow colleagues.

Do ensure that your policies on equal opportunities, bullying and harassment are up to date - if you don't have these in place we would strongly recommend that you introduce and implement them. See the essential policies drop down on: /docs/TPcontract.html. And don't ignore such banter - if you are aware that this goes on in your workplace, then unless you put a stop to it before a problem arises you will have no defence.

Working whilst off sick is not magic!

We thought you'd like this one! This case concerns Peter Hopkins, a manager at Legal & General, who was sacked for gross misconduct while on sick leave.

We sympathised with the HR officer who attended a christening party, and was surprised to see Mr Hopkins performing magic tricks (as Mr Hocus Pocus) while on long-term sick leave suffering from stress. (He was off sick leave from September 2006 until April 2007, when he was caught.)

Amazingly, Mr Hopkins had already been warned once after being caught doing a show while he was off work with the flu! In his defence he claimed that his doctor encouraged him to perform his magic shows as it might help him to overcome his stress-related illness. Hopkins's website, advertising his magical services, was operational throughout his sickness period and his advert was in the Yellow Pages.

He therefore lost his claim for breach of contract.

Plans to merge the Health and Safety Executive and the Health and Safety Commission into a single body have now been laid before Parliament.

Just a reminder that this comes into force next month. If you haven't taken action yet, do read our hot topic from last month which has now been added to the website. See /docs/hasaw/manslaughter.html

Employers are legally required to ensure that workers receive proper training and information on how to handle loads correctly and the risks to which they might be exposed. Specific techniques have been advocated to reduce the load on the back.

A study has now found that this would seem to have no effect. Scientists from the Finnish Institute of Occupational Health compared employees who had received training on safe lifting with those who had not and found no difference in the rate of injury between the two groups. They concluded that either the recommended techniques did not reduce the risk of back injury or the training did not lead to adequate change in lifting and handling techniques.

We've added last month's hot topic on Corporate Manslaughter to the health and safety section and have updated the letter for new starters to comply with the new regulations on checking the right to work in the UK.

See: /docs/hasaw/manslaughter.html and /docs/lf/firstday/index.html

Sadly it would seem that redundancies are on the increase - and our helpline would bear this out!

The CIPD/KPMG Labour Market Outlook survey found that 38% of employers intended to make some redundancies this quarter. This is the highest figure since the survey began in 2004 where the average figure was 21% - the corresponding figure for last year was 17%.

Our website provides comprehensive advice on managing redundancies - so if you are envisaging any cuts, do review the following: /docs/sbs/redundancy/index.html and /docs/legal/redundancy.html

The Samaritans organisation has run a survey which found that an astonishing 80% of workers claim to have been bullied in the workplace. 83% of respondents said they would rather say they were sick with an illness such as flu, than admit to being stressed. And almost half of those surveyed felt their bosses tried to get as much out of them as possible, regardless of their stress levels.

If you want to read some unsettling statistics, go to www.samaritans.org

We would recommend that whatever the size of your business, you do have a policy on harassment and bullying in place so that employees have a known route to seek assistance. See our template harassment policy and our guide on harassment and bullying:

/docs/pol/harassment/index.html and /docs/legal/harassment.html