Continue reading …]]> ACAS has issued its first guidance on how to deal with issues arising from the Olympic Games in the summer; more will follow.

The guidance note covers “time off” issues in respect of employees wishing to attend the Games either as spectators or volunteers, or watch it on tv.

There is a helpful Q&A section for both employers and employees.

Written by
Robin Aston

Continue reading …]]> The Court of Appeal has recently considered two cases regarding the issue of when an employer is liable for the conduct of an employee (known as vicarious liability) where that employee assaults another.

In Weddall v Barchester Healthcare an employee, Mr Weddall phoned another employee, Mr Marsh and asked him to work a night shift.  Mr Marsh not only refused but turned up at his workplace and assaulted Mr Weddall, who them claimed damages from his employer (Barchester Healthcare) on the grounds that the latter was responsible for the actions of Mr Marsh.

The Court held that Mr Marsh was “acting personally for his own reasons” and he had used Mr Weddall’s request to come to work as a “pretext for an act of violence” unconnected with his work.  As such, the employer was not vicariously liable for the assault.

In Wallbank v Wallbank Fox Designs Ltd, Mr Brown was responsible for loading items on to a conveyer belt which passed through an oven.  His boss, Mr Wallbank was concerned by the lack of items which Mr Brown had loaded and he went to the conveyer belt to add more.  He then summoned Mr Brown to help him whereupon Mr Brown assaulted Mr Wallbank by throwing him on to a table and injuring him.

The Court held that “the employer should bear vicarious liability for the spontaneous force by which the employee reacted to the instruction give to him”.  Mr Brown assaulted Mr Wallbank “in immediate response to instructions given to him” and hence he was “acting in the course of his employment”.   The employer was accordingly liable to pay damages to Mr Wallbank because of Mr Brown’s conduct.

Written by
Robin Aston

Continue reading …]]> 2012 looks like it will be a busy year in UK Employment Law as the Government seeks to implement the changes announced at the end of last year. These, together with several other key matters, suggests that 2012 will be a year for ringing the changes.

I have cited the most notable developments by month below

February

• An increase in the maximum Compensatory award for unfair dismissal from £68,400 to £72,300
• An increase in the maximum amount of a week’s pay (used to calculate statutory redundancy payments and the basic and additional awards for unfair dismissal) from £400 to £430
• An increase in the amount of a guarantee payment payable to an employee in respect of any day, from £22.50 to £23.50

March

• As of 8^th March parental leave increases from three to four months, pursuant to the Parental Leave Directive (2010/18/EC) repealing the Parental Leave Directive (96/34/EC).

April

• It is expected that 2 years will become the new qualifying period for unfair dismissal claims
• Various changes are expected to be set in motion in relation to tribunal procedures including increasing deposit orders and costs awards, Employment judges to sit alone in unfair dismissal cases and witness
  statements no longer to be read aloud but taken “as read” unless ordered otherwise by the tribunal
• Statutory maternity, paternity and adoption pay will increase from £128.37 to £135.45 per week
• SSP will increase from £81.60 to £85.85 per week

October

• Automatic pension enrolment commences for larger employers. For full details on the legislation please see
  http://www.dwp.gov.uk/policy/pensions-reform/the-pensions-act-2008/

It is also a possibility that the following changes will take place in 2012 but at this moment in time no deadline for implementation has been agreed:-

• All claims to be submitted to ACAS for pre-conciliation before a claim can be issued in an Employment Tribunal
• Introducing the concept of “Protected Conversations”, which would allow employers to raise workplace issues with employees “in an open way, free from the worry it will be used in evidence in… tribunal”.
• Imposing financial penalties on employers who breach employees’ employment rights. The penalty will relate to the size of the award granted by the tribunal with a minimum penalty of £100 and maximum £5,000. The money would be payable to the Exchequer

Written by
Edward Aston

Continue reading …]]> The government has recently outlined plans for employment law reform, including financial penalties to be introduced on employers who breach employment rights.

The main proposals of notable interest are:-

• To increase the qualifying period for unfair dismissal to 2 years.
• For all claims to be submitted to ACAS for pre-conciliation before a claim can be issued in an Employment Tribunal.
• Introducing the concept of “Protected Conversations”, which would allow employers to raise workplace issues with employees “in an open way, free from the worry it will be used in evidence in… tribunal”.
• Financial penalties to be introduced on employers who breach employees’ employment rights. The money would be payable to the Exchequer.
• Employment Judges are to sit alone in unfair dismissal cases.
• Closing the loophole in whistle blowing legislation whereby a complaint about a breach of contract can count as a qualifying disclosure.
• A review of the Tribunal rules to be conducted by Mr Justice Underhill.
• Reviewing the Agency Workers Regulations 2010 in 18 months time.
• Simplifying the 17 separate pieces of National Minimum Wage legislation into one set of regulations.

Below are the key links detailing all the reform proposals:-

Vince Cables Speech

BIS Press Release

Government Response to the Consultation on Resolving Working Disputes

BIS ‘call for evidence’ on effectiveness on TUPE Regs

BIS consultation on redundancy collective consulation rules

Continue reading …]]> If an employer treats an employee less favourably, not because she is married, but because she is married to a particular man, will that amount to Marital Discrimination?

In the case of Dunn v Institute of Cemetery and Crematorium Management the EAT said it would.

The salient facts of the case are as follows. Mrs Dunn was employed as a technical services manager. There was a dispute over her employment terms and so she resigned. She claimed constructive unfair dismissal and breach of the Sex Discrimination Act 1975. In respect of the latter claim, she asserted that she was less favourably treated by her employer because she was married to Mr Dunn. Mr Dunn was also in dispute with the same employer.

The EAT held that Ms Dunn’s Human Rights under Arts 8, 12 and 14 were engaged and so section 3 of the Sex Discrimination Act 1975 (now contained in section 8 of the Equality Act 2010) could be interpreted as protecting Ms Dunn by reason of her status of not only of being married but also of being married to her husband. In other words, although the Respondent did not discriminate against married people generally, Ms Dunn was entitled to claim that her unfavourable treatment was marriage-specific and hence specific to her marriage to Mr Dunn.

Continue reading …]]> In Brown-Quinn v Equity Syndicate Management, Burton J re-confirmed that an individual who benefits from Before the Event Insurance has the freedom to choose his own solicitor. He also went on to find that the insurer could not insist on the hourly rate that it would have paid its panel solicitor but at the same time the chosen solicitor cannot demand its own hourly rate. Rather, the hourly rate must be reasonable having regard to the complexities of the case as well as to the insurer’s standard panel rates.

Continue reading …]]> Yes said the EAT (Underhill P) in Fraser v St George’s NHS Trust unless the employer agrees for it to be carried over to the next year.

Workers continue to accrue annual leave entitlement during sickness absence, and workers can choose to take annual leave at the same time as being absent due to sickness and be paid for it. But notice to take annual leave must be given to the employer to be entitled to payment for holiday pay whilst on sick leave. If notice is not given in the leave year then the holiday entitlement will be deemed as unused and will be lost. It cannot be carried over unless the employer agrees to this.

In this case Ms Fraser was injured at work. She was on sick leave for four years until her dismissal. For the last two complete years of her employment she received no pay. On the termination of her employment she sought 4 weeks holiday pay in relation to each of those two years. She did not seek it in respect of the year in which she was dismissed as accrued holiday pay for that year was rightly paid by her employer.

In the light of Stringer v HM Revenue & Customs Commissioners [2009] ICR 932 there was no doubt that the employee had accrued the right to leave during the years in question. However, the employer argued that if she wanted to exercise that right she had to give notice to the employer under Reg 15 (1) of the Working Time Regulations and she had not done this.

The EAT held that an employee is only entitled to holiday pay under Reg 16 (1) if  he/she has actually taken the leave to which the pay relates and as Ms Fraser had not done so in accordance with the WTR by giving notice pursuant to Reg 15, her claim failed. In other words, use it or lose it. In reaching this decision, the EAT decided that some of the earlier decisions on this issue in the EAT were wrong.

The EAT also held in this case that there was no obligation on the employer to notify its employee of the fact that if they do not exercise their right to holiday during the leave year, then they will lose it or in the case of an employee on sick leave not be paid holiday pay.

Continue reading …]]> Employment status has been in the headlines a lot over the years and particularly this year as there was a Supreme Court ruling on it in the case of Auto-Clenz Limited v Belcher and Others (2011)  http://www.bailii.org/uk/cases/UKSC/2011/41.html.

In the case of AutoClenz, the Court of Appeal held in 2009 that the individuals in that case were employees despite the fact that they were accepted as self employed by the Revenue and had the right to substitute. The test formulated was essentially “what is the real state of affairs”. The paperwork was not so determinative as had been thought in previous cases.

This year the case was appealed to the Supreme Court who affirmed the Court of Appeal decision. However, the Supreme Court said that if a substitution clause exists and is “genuine” then its existence may negate an employment relationship even if it is never invoked. Notwithstanding this, to decide if a clause is genuine one still looks behind the wording of the contract and at the real state of affairs i.e. what is actually going on in practice.

Continue reading …]]> Astons Solicitors successfully acted for Mrs Harper in her employment tribunal case against her employers (Moulton College) for constructive unfair dismissal and age discrimination. The Bedford Employment Tribunal held in Mrs Harpers favour on both complaints and awarded her the total sum of £193,849.11.

On 12^th May 1986, Mrs Harper began work for Northampton Borough Council as a Project Co-ordinator. In April 1989, her role changed to Senior Training Officer for youth training. On 1^st January 1991, the youth training contract was taken over by Daventry District Council and in consequence, her employment TUPE transferred to that authority. By August 2006, the Claimant was working as the Council’s Training and Development Officer. In her role she was responsible for overseeing all of the authority’s apprenticeship programmes. She had the support of 5 staff reporting to her and financial budgets of about £223,000 for expenditure and £90,000 for sub contracting.

On 1^st August 2006, Moulton College took over the apprenticeship programmes and in consequence, Mrs Harper TUPE transferred to work for Moulton College. Her terms and conditions remained the same but her job title was changed to Apprenticeship Scheme Assistant Manager. At the time of this transfer, the College had one other Apprenticeship Schemes Assistant Manager, namely Amanda Lane.

In September 2008, Mrs Harper was instructed (without warning or consultation) by the College to move to the position of Services to Business Programmes Co-ordinator even though this was a different and more junior role to that which Mrs Harper had been employed in. It was not, as the College had argued, a career development opportunity but a backwards step. Although, this was stated as being only a temporary role, Mrs Harper was given no indication of when she might return to her old job. Further, the nature of the tasks were different and the hours considerably longer for the same pay. The Tribunal found Mrs Harper would have been working an extra 6 hours per week.  Once the College had informed Mrs Harper of its decision it required her to move almost immediately.  Mrs Harper was provided with no alternatives and in consequence resigned. The Tribunal held that Moulton College were in fundamental breach of the implied duty of mutual trust and confidence in Mrs Harper’s contract of employment and hence her claim of constructive unfair dismissal succeeded.

As regards Mrs Harper’s claim of age discrimination, it was her case that she was treated less favourably than Ms Lane, who was in a comparable situation to her. Specifically, Mrs Harper was moved into the more junior role whereas Ms Lane was not considered. Mrs Harper was aged 58 at the relevant time and Mrs Lane was aged 34. The College had argued that Ms Lane was not suitable for this role and that Mrs Harper was picked because she had a smaller caseload.  However, the Tribunal did not accept this and found that in fact Mrs Harper’s caseload was greater than Ms Lane’s. The Tribunal found that Mrs Harper was approaching the final years of her career and working life (in conventional terms) whereas Ms Lane had considerably more years ahead of her and that is why the job change was imposed on Mrs Harper and not Ms Lane.

The Tribunal awarded Mrs Harper a total award of £193,849.11 comprising as follows:-

Compensatory and basic awards £178,048
Award of Injury to Feelings £15,000
Interest on Injury to Feelings £161.92
Interest on Financial Loss £639.19
Total £193,849.11

Mrs Harper was very pleased with the outcome on liability and remedy as well as the service she received from Astons Solicitors. Mrs Harper said of Astons:-

“The employment law advice and service I received from Astons Solicitors was always prompt and professional.  Although I initially worked with Astons to prepare my case because I was funded by my insurers I was forced to use their panel solicitors to issue proceedings.  Once this had taken place it was an easy and quick process to return to Astons and still remain covered by my insurer.  I am certain that the personal contact, support and interest I received from Astons Solicitors were fundamental to the eventual success of my case.  I would not hesitate to recommend them to anyone in need of an Employment Law Solicitor.”
Joan Harper