Tag Archives: ACAS

April Employment Law Update

April Employment Law Update

April is normally a very busy time for employment lawyers, as you will see from the following changes to employment law which came into effect on 6 April 2014, together with the cases below. April was also a busy month for me and included successfully representing a commercial client at a Judicial Mediation in which an agreed settlement was negotiated which saved my client over £30,000 in legal costs alone.  Sometimes it is good to talk!

Legal changes

6 April 2014

  • Abolition of discrimination questionnaires.

What does that mean now ? Acas has published good practice guidance on how employers should deal with questions regarding discrimination in the workplace after statutory discrimination questionnaires are abolished.

  • Mandatory pre-claim Acas conciliation.

There is now a four-step procedure for early conciliation (EC) through Acas before an employment tribunal claim can be commenced. Transitional provisions cover the period between 6 April and 5 May 2014 during which EC will be available to prospective claimants. EC will be mandatory for claims presented on or after 6 May 2014.

  • Increase to employment tribunal fees.

The Courts and Tribunals Fees (Miscellaneous Amendments) Order 2014 (SI 2014/590) will re-categorise a number of claims as “Type B” claims, which attract a higher fee. This is to remedy what the government has identified as a mistake in the original legislation which categorised certain claims incorrectly as “Type A”.

  • Financial penalties for losing employers.

Tribunals now have the power to order that a losing employer pay a financial penalty in specified circumstances. This will apply in cases presented on or after 6 April 2014.

  • Abolition of the Percentage Threshold Scheme.

The Percentage Threshold Scheme enables employers to reclaim Statutory Sick Pay (SSP) from HMRC, where the total SSP paid in a month exceeds 13% of their Class 1 National Insurance contributions for that month. A draft Order abolishing the scheme, as part of the government’s review of health at work, was laid before Parliament and approved by the House of Lords on 12 February 2014. It is expected to take effect on 6 April 2014.

  • Abolition of SSP record-keeping obligations.

The Statutory Sick Pay (Maintenance of Records) (Revocation) Regulations 2014 (SI 2014/55) will abolish the obligation on employers to keep specified records of dates of sickness and SSP payments

  • Maximum compensatory award increase.

The maximum compensatory award for unfair dismissals where the effective date of termination falls on or after 6 April 2014 will be increased to £76,574 (or 52 weeks’ gross pay, if lower).

  • Increases to rates and limits.

Several statutory rates and payments will increase on 6 April 2014, including statutory sick pay, maternity pay, paternity pay, adoption pay, and the cap on “a week’s pay”.

  • Increased penalty for employing illegal workers.

The maximum civil penalty which may be payable under section 15(2) of the Immigration, Asylum and Nationality Act 2006 will increase from £10,00 to £20,000 where an employer is found to have employed adults who are subject to immigration control but do not have the right to work in the UK.

  • Changes to TUPE: post-transfer pension contributions.

The Occupational Pension Schemes (Miscellaneous Amendments) Regulations 2014 come into force on 6 April 2014. From that date, transferee employers will have the option to match the transferor’s level of employee pension contributions into a defined contribution scheme, even if they are less than the current minimum of 6%. This is to avoid the situation where employees could be in a more favourable position than they would have been if they had not transferred.

  • MPs added to list of “prescribed persons”.

The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2014 amends the schedule to the Public Interest Disclosure (Prescribed Persons) Order 1999 to make members of the House of Commons (MPs) “prescribed persons” in England, Scotland and Wales to whom a whistleblower may, under certain circumstances, make a protected disclosure.

 

Employment Law cases round up

TUPE: employees transferred to parent company following share purchase by subsidiary

Normally a share purchase will not be a TUPE transfer, however The Employment Appeal Tribunal (EAT) has upheld a tribunal decision that employees had transferred under TUPE to a parent company following a share purchase by one of its subsidiaries.

The EAT decided that the tribunal had been entitled to find, on the facts, that the share sale triggered a co-extensive but separate transfer to the parent company. In this respect the tribunal had taken account of a statement of intent made by the parent company that employees would be moving over to it, the arrival of its integration team, and the fact that day-to-day control of the transferor’s business activities had passed to the parent company.

The EAT also upheld the tribunal’s finding that affected employees had been entitled to bring claims for failure to inform and consult in their own names. While there had been an employee representative committee, on the facts, the mandate of representatives who had served on the committee had expired some time before the share sale. The ad hoc committees that had continued thereafter had not been mandated by the affected employees to carry out TUPE consultation.

Not sure if TUPE applies ? Take specialist legal advice.

12-month non-competition restriction enforceable against financial adviser

The High Court has held that a 12-month non-competition post-termination restrictive covenant in an agreement between a financial adviser and his employer was enforceable. Under a “goodwill agreement”, the financial adviser had been paid for the goodwill in the client base he brought with him to the firm, but was prevented from working in any capacity in competition with his employer for 12 months after his employment terminated.

The court held that the non-competition restriction was enforceable because the goodwill agreement was akin to a business sale agreement into which the parties had entered with equal bargaining power. It further noted that 12-month post-termination restrictions were common within the financial services industry and were reasonable in cases such as this where there was an exceptionally strong relationship between the employee and their clients.

The court rejected the employee’s argument that the employer had failed to mitigate its loss as it had not put him on garden leave or sought injunctive relief. It concluded that a claim for breach of contract was appropriate in these circumstances where the employer did not want to cause further damage to its client relationships. It ordered the financial adviser to pay damages for the employer’s loss of profit for two years after his departure.

Christian nursery worker brings claim for religious discrimination against her former employer

A Christian nursery worker has brought a religious discrimination claim against her former employer, Newpark Childcare. Sarah Mbuyi alleges that she was dismissed from her position at a nursery in Shepherd’s Bush due to her beliefs, after she was asked whether she would be able to read books to children which featured same-sex parents, and replied that she would not be able to read them. Miss Mbuyi was also accused of harassing a lesbian co-worker with whom she had discussed her religious beliefs.

This case again highlights the conflict between the right to religious belief and the right not to be discriminated on grounds of sexual orientation.

http://www.telegraph.co.uk/news/religion/10776411/Christian-nursery-worker-sacked-after-refusing-to-read-gay-stories-to-children.html

If you need further advice on this blog, please send an email, or call me, on my mobile 07767 166705 or 01580 712718 (local office number) or 0207152 6550 (London office number).

 

http://osjlaw.co.uk/about-me/

© OSJ Law Limited

March Employment Law Update

Hello readers, March have been a significant month for OSJ Law, as it celebrated its first year anniversary!

Here’s to the next year as an even better year for OSJ Law and all businesses and employment generally in the United Kingdom and beyond.

In terms of the March employment law update I have compiled a top 5 of my most significant and relevant employment law cases and legal changes to update readers of this blog. Enjoy this and the start of spring with new confidence in the economy and your knowledge of employment law.

The Top 5

1.    Flexi-time schemes and unlawful deductions from wages

Businesses that use flexi-time schemes should take note of a recent EAT judgment that an employee, who was not paid on termination of employment for over 1000 extra hours worked under a flexi-hours scheme, had not suffered an unlawful deduction from wages.

The EAT recognised that the poor drafting of the flexi-hours scheme was at the heart of the problem in this case. The scheme differentiated between those employees who were entitled to overtime payments and those who were not and did not address the issue of payment on termination of employment at all.

To avoid this type of dispute, businesses should ensure that the terms of flexi-hours schemes make it clear what will happen to accumulated hours on termination and should, ideally, make sure that employees manage their accrued hours to avoid a significant build-up.

Source: The Practical Law Company

2.    Covert recording of private discussions at disciplinary and grievance hearings admissible

The EAT has upheld an employment tribunal decision that covert recordings made by an employee of the public and private discussions of the panel at her grievance and disciplinary hearings could be admitted as evidence at a final hearing.

The EAT held that the private comments made by the panel were not part of their deliberations on the matters under consideration and the case could therefore be distinguished from its decision in Amwell View School Governors v Dogherty. The tribunal was entitled to decide that the recordings were admissible in evidence, the cogency and relevance of which could be determined by the tribunal at the final hearing. (Punjab National Bank (International) Ltd and others v Gosain UKEAT/0003/14.)

Source: The Practical Law Company

3.    Responses to zero hours contracts consultation

BIS has announced that the government’s consultation on zero hour’s contracts, which closed on 13 March 2014, attracted more than 30,000 responses. The consultation identified exclusivity clauses and a lack of transparency as two key concerns posed by zero hours contracts and asked for views on potential solutions.

Since the consultation closed, Acas and CIPD have published their full responses online. Acas has suggested that exclusivity clauses in zero hours contracts are likely to be detrimental to relations between employer and employee. It calls for new guidance on zero hours contracts, to ensure that employers and employees understand their working arrangements. However, CIPD has taken this a step further and recommended that the government bans exclusivity clauses in zero hours contacts unless employers can demonstrate a “compelling business reason” for their use.

Sources: The Practical Law Company

Zero hours contracts consultation closes with over 30,000 responses, BIS, 15 March 2014; Acas Council response to the Government’s consultation on zero-hours contracts, Acas, 18 March 2014, and Exclusivity clauses in zero hours contracts should be banned where there is no compelling business reason for their use, says CIPD, CIPD, 14 March 2014.

4.    TUPE service provision changes: “intends” means more than “hope and wish” that task will be short-term

The EAT has upheld an employment tribunal’s decision on the meaning of “intends” in the “task of short-term duration” exception to the TUPE service provision changes rules, for situations where a client buys in services from a contractor on a one-off basis.

For the exception to apply, a client must have more than a “hope and wish” that a particular event or task will be short-term. In this case, there had been a service provision change when a local authority transferred the home care provision for an individual with learning difficulties to a new provider on an ad hoc basis, pending an application to the Court of Protection to change the individual’s care plan, which would have removed the need for home care.

The EAT also found that an employee of the transferor, who had been suspended from her duties at the time of the service provision change and told that she was not able to return to her post caring for the individual, was not assigned to the organised grouping of employees. Therefore, she had not transferred to the transferee. (Robert Sage Ltd (t/a Prestige Nursing Care Ltd) v O’Connell and others UKEAT/0336/13.)

Source: The Practical Law Company

5.    Employment tribunal fees to increase in some cases from 6 April 2014

The Courts and Tribunals Fees (Miscellaneous Amendments) Order 2014 has been laid before parliament and will come into force on 6 April 2014. The main effect of the order from an employment law perspective is to re-classify the following claims as “Type B” claims attracting the higher fees (£250 issue fee and £950 hearing fee for a single claimant):

  • Equal pay.
  • Sex equality in pension schemes.
  • Failure to inform or consult under TUPE.
  • Failure to allow compensatory rest under the Working Time Regulations 1998.
  • Breach of the right to request time off for training.

This is to remedy what the government has identified as a mistake in the original legislation which categorised those claims as “Type A”, attracting the lower fees (£160 issue fee and £230 hearing fee). The Order also corrects errors in the existing legislation concerning the definition of “excluded benefits” in relation to fee remission.

Source: The Practical Law Company

If you need further advice on this blog, please send an email, or call me, on my mobile 07767 166705 or 01580 712718 (local office number) or 0207152 6550 (London office number).

http://osjlaw.co.uk/about-me/

© OSJ Law Limited

 

SEX (ism) in the City

It would appear that the City of London can still be a tough place for a woman, particularly a bright and highly successful one, as two recently reported tribunal claims show:-

http://www.standard.co.uk/news/london/city-broker-delighted-to-win-sexism-case-against-bunga-bunga-bank-8929266.html

http://www.standard.co.uk/news/london/trader-called-crazy-miss-cokehead-by-colleagues–is-vindicated-by-tribunal-8922128.html

Although the two cases were distinct, there are some interesting similarities in both cases.

  • Both were young women – 32 and 42 years old
  • Both were working for top City establishments  – Troika Group and Oppenheimer Europe
  • Both were high earners on six figures salaries
  • Both were clever and driven and highly successful, one a trader the other a broker
  • Both successfully sued for sex discrimination (including victimisation) and unfair dismissal
  • Both were subjected to insidious and casual sexism and derogatory personal comments including being called “miss cokehead” and “Bitch” in communications with clients and senior staff and references to the firm as “Bunga Bunga Securities”.
  • Both were treated less favourably than their male counterparts at work because of their sex
  • Both succeeded in their claims and are likely to receive substantial unlimited compensation
  • Both hired Lawyers to represent and advise them

Comment

Despite The Equality Act 2010 and the work of the Equality and Human Rights Commission, it appears Sex(ism) in the City still exists, although to what extent may always remain unclear given that the majority of tribunal claims settle before a hearing.

Employers

There are many steps employers can take to limit claims of Sex discrimination by employees:-

  1. Have an Equal Opportunities (EO) Policy which is actively followed and enforced by the company
  2. Provide regular  EO training for managers and staff
  3. Carry out workplace diversity monitoring
  4. Comply with the EOC Code of Practice on Sex Discrimination
  5. Deal with grievances on grounds of sex in accordance with the ACAS Code of Practice and fully investigate any allegations and consider suspension measures if applicable
  6. Respond promptly and sensitively to any submitted questions by an employee under the Equality Act 2010
  7. Take legal advice to protect and limit the legal and reputation risks to your company as soon as you can.

Employees

If you are an employee suffering discrimination because of your Sex, you should take the following steps:-

  1. Raise the issues with your line manager or Human Resources and seek to resolve matters informally with your employer if at all possible
  2. If this does not work consider the formal grievance route or consider submitting questions to the employer to help determine whether you have a claim under the Equality Act 2010 (previously known as the Questionnaire Procedure).
  3. Always keep a paper trail/ diary of events and keep copies of any relevant documents/emails/correspondence
  4. Consider issuing an Employment Tribunal Claim if you are unable to resolve your concerns with your employer first.
  5. Take legal advice from a solicitor specialising in employment law