Holiday Pay Verdict Summary

Holiday Pay Decision

Twitter has been alive with employment updates this morning following the hotly anticipated decision regarding the calculation of holiday pay.

The implications were vast, employers may have been liable for backdated holiday pay claims to take account of overtime and commission.

Judgement was handed down just after 10.30am and while the workers have been successful in claiming that the additional payments which are intrinsically linked to the performance of their duties should be included in holiday pay, the backdated element has been limited by the EAT.

This means employers are unlikely to face a large bill for claims for historic payments, however employers are now likely to have to take account of the decision when making budget considerations. Commentators are expecting pay freezes and a cautious approach to budgets and planning in the year ahead.

The decision may yet be appealed. The full summary is available here: http://www.dlapiperbeaware.co.uk/holiday-pay-the-verdict/

We will update the blog later today with full details.

Is your contractor actually a worker?

Ruling: Self-employed contractor a worker with employment rights

Plastering Contractors Stanmore Ltd v Holden

In this case, an employee accepted £200 in exchange for becoming a self-employed subcontractor. The EAT held he was actually a worker with entitlements under the Employment Rights Act 1996 (ERA) and Working Time Regulations 1998 (WTR).

The Claimant, H was employed as a general laborer from 1997 to 2001.He accepted a one off payment in 2001 to become a self-employed contractor. He was added to the company’s database and he was referred to construction sites upon requests for services. On site he worked under the instruction of the site supervisor and was paid by how much work he completed. The rates of pay were non-negotiable and he was paid based on the supervisors record of his work.

With the exception of his safety boots, which were his own, all other PPE, equipment and transport was provided by the Company. He worked exclusively for the company until May 2013 when he stopped forking without notice.

H had become frustrated waiting at home for referrals to work on site. He took up another position and brought a claim for unpaid holiday pay.

The company disputed his claim stating that they were not under an obligation to provide H with work, he didn’t have to accept work and he was entitled to send a substitute. They stated he was not a worker. The Employment Judge disagreed, he stated he was a worker and for 16 years he had been offered work with an expectation of him turning up for work during working hours, he had been integrated into the workforce.

The company appealed, their appeal was dismissed by the EAT who stated that there was sufficient    mutuality of obligation. With regard to the ability to send a substitute it was found there was no express provision permitting this. The EAT found there was sufficient integration and control for H to be a worker.

Just because an employee agrees to change their status will not necessarily prevent a finding that their status has not changed. The Tribunal will look at the realities of the  relationship,

Remember, employees can bring a claim seeking holiday pay for a 12 year period under the ERA, rather than the WTR which limits to the last holiday year.

 

 

What if Ebola hit the UK? Workforce Planning

Ebola in the Workplace

At the time of writing there have been thankfully no confirmed cases of Ebola in the UK. North Wales was awash with rumours this week after a sighting of an individual from the Bangor area being helped into an ambulance by staff wearing what appeared to be Hazmat suits. The rumour mill went into overdrive until it was confirmed that the patient was not suspected to be an Ebola sufferer and Hazmat suits are worn on occasion for other scenarios.

The US press has been filled with reports of hysteria, travellers in Hazmat suits and criticisms of the way the crisis has been handled. In addition, there has been circulation on twitter of what employers should be doing to safeguard their businesses. It is probably the last thing on most people’s minds, what happens at work if there is a pandemic?

 

Should the worst case scenario become a reality, employers could face mass sickness absence, employees boycotting public spaces and issues with logistics and supply and demand. Workforce issues could be dramatic.

Employers must not panic, if the disease does start to spread they should have an action plan in place for disease prevention, restricting travel to high risk areas and providing information and training to employees. Having protective suits/sanitizers available should the worst happen would also be recommended.

Identify any employees who are a specific risk, this could be more difficult that it first seems, employers will need to be sensitive to their obligations to treat employees fairly under the Equality Act.

Employers should also consider a policy on contagious disease, if an employee suspects they have contracted Ebola if they are aware of the procedure which should be followed in respect of their employment, you may be able to limit the spread amongst your workforce. Consider you sick pay arrangements, employees who only receive SSP are more likely to make their way into work rather than those who receive full pay for a period.

If Ebola were to spread through the UK and your business had staffing issues, do you have a port of call for temporary staff? Does your insurance cover business interruptions due to infectious diseases? If your CEO/board fall ill do you have a contingency plan?

While the concepts discussed may appear at present ridiculous as the UK has no confirmed cases, planning for the worst does not do your business any harm. From an academic perspective if the pessimistic view taken by some experts becomes a reality, employers will have to pay real attention and act quickly to protect their staff and their business.

Reasonable Adjustments and Criminal Convictions

Can an employer be required to discount criminal convictions as a ‘reasonable adjustment’?

 

No says the EAT in Howorth v North Lancashire Teaching PCT.  

The EAT held for the employer to dismiss an employee who had been convicted of theft, battery and dangerous driving did not constitute a failure to make reasonable adjustments. Sounds fair? The convictions listed are undoubtedly serious; however the case itself certainly gives cause for thought.

Were an employer to seek advice in relation to an employee who had been convicted of theft, battery and dangerous driving, it is likely we would give advice on dismissal. In this instance the situation was complicated by medical issues and the traumatic personal issues of the employee.

Mrs Howorth was a health visitor; she had a mental illness (automatism) and was disabled under the legal definition. She had no recollection of events which lead to her conviction. Those events being that she left Asda without paying for her shopping, forced her way from the shop, drove away trapping a person with her car door and with a shopper on her bonnet.

 

Prior to the incident Mrs Howorth was recovering from cancer treatment and a friend had recently passed away from cancer. In addition her husband had left her, her brother in law died and her son left home to go to University.  She was also carrying two caseloads at work as her colleague had gone off sick.

Even a less than reasonable person would have some sympathy for Mrs Howorth, her employer however did not. Mrs Howorth was dismissed following her convictions and her employer refused to re-employ her following her application for a different position.

 

The ET held that the employer had failed to make reasonable adjustments, she had no recollection of the events leading up to her conviction due to her disability, they had refused to consider adjustments to her role as an alternative to dismissal. The ET did however find that the dismissal itself was faire given the nature of the job she completed.

The Employer appealed on the basis that no adjustment could have succeeded keeping Mrs Howorth in work. The EAT agreed and stated although the employer had not fully considered alternatives, it could only breach the duty to make alternatives if there was an adjustment which could have avoided the disadvantage.

Reasonable Adjustments for Carers?

Reasonable Adjustments for Carers?

 

Hainsworth v Ministry of Defence recently provided some useful guidance on the obligation to make reasonable adjustments. The case concerned a carer who worked for the MoD and was based in Germany. Her daughter had Down ’s syndrome and the appropriate education was not available at Ms Hainsworth’s garrison.

 

The MoD rejected her request to transfer to the UK in order to meet her daughter’s education needs. She brought a claim under the Equality Act stating that the MoD had failed to make reasonable adjustments by not changing her place of work.

 

Ms Hainsworth’s claim was rejected by the Employment Tribunal and the Employment Appeal Tribunal. It was held the duty to make reasonable adjustments does not extend to non-disabled employees who are associated with disabled people.

 

Employers are not required to make reasonable adjustments for employees who are carers of disabled people. On appeal to the Court of Appeal it was held that although direct discrimination and harassment require protection from ‘associative discrimination’, the duty to make reasonable adjustments only extends to disabled employees and not to non-disabled employees associated with a disabled person.

 

Employers should be mindful that employees who have caring duties may request to work flexibly and such requests should be handled sensitively and appropriately. There is not however a test of reasonableness associated with flexible working requests, as there is in respect of adjustments for a disability.

 

Employers should keep lines of communication with such employees open and try and maintain a positive working relationship with them while considering the needs of the business.

 

Got any queries regarding carers, reasonable adjustments and/or flexible working? Give our Employment Team a call on 01745343500 or send an email to info@gamlins.co.uk

 

http://gamlinslaw.co.uk/

Case Update: Henman v Ministry of Defence

Criminal Conviction related to Disability: Unfair Dismissal

In Henman v Ministry of Defence, Mr Henman was employed in a civilian capacity by the Ministry of Defence. He lived in shared accommodation provided by the MOD and following being found with video and still images of another employer taken covertly in the shower he pleaded guilty to outraging public decency. He was sentenced to a three year community order. Sackable offence?

 

The Employment Tribunal found that the MOD had unfairly dismissed Mr Henman. It was accepted by the Court that he suffered from Asperger’s syndrome and a number of other mental conditions. He had been dismissed for gross misconduct, which according to the Employment Tribunal was outside of the range of reasonable responses.  It also found that the dismissal was related to his disability and therefore they had breached the Equality Act.

 

The Employment Appeal Tribunal (EAT) disagreed. They stated the Employment Tribunal had substituted its own view on reasonableness instead of assessing what a reasonable employer would have decided. In addition they stated they had made an error is assessing proportionality under the Equality Act, focussing entirely on what the Crown Court had said when they had sentenced Mr Henman. The case was sent back to be decided by a different Employment Tribunal.

Obesity Discrimination: Kaltoft Case Update

 

The Advocate General gave his opinion today on the issue of obesity and discrimination. Mr Kaltoft had brought his case following his dismissal from his employment. He claimed he had been dismissed due to his size and that those who are obese should have the protection of discrimination legislation.

The AG has stated that there is no stand-alone prohibition on discrimination on grounds of obesity, HOWEVER, obesity may amount to a ‘disability’ and be afforded protection as a result.

The opinion states that ‘morbid obesity may come within the meaning of ‘disability’ if it is of such a degree as to hinder full participation in professional life’. It goes on to say, ‘even if a condition does not affect the capacity of that person to carry out the specific work in question, it can still be a hindrance to full and effective participation on equal terms with others’.

This is slightly concerning, the AG appears to be saying that even if someone who is morbidly obese can effectively do their job, the fact that they may not be able to fully participate must be addressed. Reasonable measures should then be taken to accommodate the disabled individual unless the burden on the employer would be disproportionate.

The AG states that obesity must reach a degree that it plainly hinders participation in professional life, with a BMI of 40+ (extreme, severe or morbid obesity), where limitations with mobility, endurance and mood are created.

What does this mean for employers? The AG’s opinion is usually followed by the judgement, it is not binding until we have a judgement. However, this is a red flag for employers that a can of worms is potentially about to be opened. You may have obese employees who are able to do their job, but cannot fully ‘participate’, this open ended statement could have limitless possibilities and carry significant implications for adjustments in the workplace.

The final word from the AG stated the fact that the disability is self-inflicted is irrelevant and makes the comparisons with risk taking in traffic and sports and resulting disabilities. However, no mention is made of the ability to lose weight and therefore become ‘non-disabled’ by reducing BMI.

This opinion, if followed on decision, could be potentially dangerous, not only for employers’ obligations but also for public policy, whereby employees become aware that if they increase their BMI they will be eligible for protections at work.

 

Elissa Thursfield elissa.thursfield@gamlins.co.uk

 

www.gamlinslaw.co.uk

 

Right to request flexible working: At a glance

Right to request flexible working: At a glance

From today (30 June 2014) employees have a statutory right to request flexible working if they have worked continually for their employer for 26 weeks. Previously employees were required to meet strict eligibility criteria such as caring responsibilities.

Employees are entitled to make one request per year; however the right to request does not give an employee the right to work flexibly. The employer is under a duty to consider the request, and not to necessarily grant it.

 

As long as an employer acts reasonably and can produce a strong business reason for the rejecting the request, they would be compliant with the new rules. Employees can take a complaint to the employment tribunal but must do so within 3 months.

In terms of the request itself, employees do not have to have caring responsibilities or even a wish to do something constructive such as undertake part time study. A request could legitimately be made for a late start on a Monday, purely because the employee wants a lie in.

 

Businesses are permitted to take account of their operational needs when turning down a request; however some employers have expressed concern over prioritising requests. Should parents always been given first refusal? How do you deal with grievances between employees where one has been granted flexible working and another hasn’t?

The CBI has allegedly reported to have said where there are multiple requests and only one can be accommodated, names should be ‘put in a hat’.

Employers are also concerned about inviting discrimination claims where someone is treated more favourably in terms of a flexible working request, annoying other employees.

The government is pushing family friendly policies and wants to change the modern working culture, their rational being that it will encourage economic growth. Happy workers = productive workers?

Commentators have stated that those who already offer wide ranging flexible working will in reality be unaffected and that the changes in the workforce are unlikely to be dramatic.

Have you had a flexible working request? Not sure what to do? Call our team (01745 343 500) or make an enquiry via our webpage: http://gamlinslaw.co.uk/

Criminal Convictions and Human Rights

Criminal Convictions and Human Rights

The Supreme Court ruled this week on the disclosure of criminal convictions. This has been an interesting case as it deals with those wanting to work with children and vulnerable adults.

 

Generally ‘spent’ criminal convictions do not have to be disclosed and someone with a spent conviction is entitled to state that they have a clean record. The exception to this was when working with certain classes of individuals.

Disclosure of criminal convictions has been a hotly debated topic, with Vicky Pryce (remember she went to prison for perverting the course of justice) declaring support for getting ex-convicts back into work.

Employers are VERY wary of criminal convictions, if a person discloses they have been to prison it raises concerns regarding honesty, respect and even violence. The situation is even more sensitive when it comes to working with vulnerable groups such as children and the elderly.

Employers are free not to employ someone who has an unspent conviction; however they are prevented from using knowledge of a spent conviction to exclude someone from employment.

The exception relating to vulnerable groups, i.e. even if a potential employee had a spent conviction it had to be disclosed for certain classes of work has now been challenged and the Supreme Court has ruled in favour of non-disclosure.

Under the ruling, it is not a necessary and proportionate interference of the Article 8 right to a private life. The case related to two very minor offences, an 11 year old who had been given a warning for stealing 2 bicycles who years later applied to work in a football club. The second individual who stole a set of false nails who 8 years later was unable to get a job as a care worker. Neither individual had any other criminal record.

The Supreme Court stated that this violated their private life and that such interference was not justified and that the criminal records system should be scaled back to ‘common sense levels’.

 

It is a tough one for employers. Employers working with children and other vulnerable groups have been heavily criticised for not checking thoroughly enough when employing individuals where subsequent crimes have been committed. However, is it right that an individual should be judged on an isolated criminal activity committed as a child?

 

We imagine this case will spark debate. Keep an eye out for further blogs on this issue as the discussion develops.

Fee Remission Reality for Claimants

Fee Remission Reality for Claimants

 

The employment press has been awash with statistics and depressing headlines regarding the new fee regime and what it means for the industry. Employers generally love the new fee system, it has vastly reduced the number of claims and HR departments are breathing slightly easier.

 

As someone who acts for both Respondents and Claimants I can see the positive side of having a fee regime and the need to deter spurious and vexatious claims which are damaging and expensive for employers. However, I am unable to take anything positive out of the current regime and the way it is being implemented.

Fees can be in excess of £1,000 for a Claimant. These fees are incurred when a Claimant is arguably at their most financially vulnerable if they have just lost their job. Mortgage payments, feeding their children and paying for electricity clearly take a priority when someone doesn’t know where their next wage is going to come from.

According to the Government, all is not lost; there is of course the fee remission system. Here is where the real problem lies. High fees would not be an issue if the remission system was fair, organised and efficient. If the fee system itself is not preventing access to justice, the remission system certainly is in some cases.

In my experience, having dealt with a number of remission applications it is frustrating, unrealistic and desperately lacking in any insight into the financial viability of the Claimants’ situation. I have had Claimants who are facing eviction, using food banks and do not have enough money to top up their electricity all be rejected for fee remission.

Another case saw a miscommunication between the remission office and the tribunal seeing the case get thrown out for ‘failure to pay the fee’. The case was reinstated; however this was an error which should never have been allowed to happen. Even though the mistake lay within the respective administrative systems, an application had to be made for reinstatement with evidence and reasons.

 

Documentation is key for the remission office. In one case where the Claimant no longer had access to his documents due to relationship breakdown, the remission office refused to use discretion and review a case on its merits, rather than the presence of benefit letters. Even where benefit entries are clear on bank statements, the remission office is resolute on needing the specific documentary evidence.

The fee remission office refuses to acknowledge the difficulties of having documents and letters reproduced by the benefits office or the delays that can be experienced in getting confirmation of entitlement to benefits. When asked what we were expected to do the response was an uncomfortable, ‘we just have to see them’. Often the deadline to produce documents is a mere 5 days, when it can  take weeks for confirmation to come through from the benefits office.

The situation simply cannot carry on. If the fee system is to stay, the remission system needs attention. Claimants who are in genuine financial hardship are not being adequately identified.  If not, we are running the risk of an elitist system where only high earners and those with considerable savings will be able to afford access to justice.

(All views expressed in this article are of the personal views of Elissa Thursfield and are not necessarily shared by Gamlins Law)

Obesity Discrimination: Food for Thought

Obesity Discrimination:  Food for thought?

According to ACAS around a quarter of the adult population in the UK are clinically obese. The NHS believes this figure is set to rise. Obesity is a condition which can be caused by numerous factors, not just food or overeating. It is a debilitating condition which has been heavily stigmatised in the UK and is associated with a host of other diseases.

 

Obesity is not in itself a protected characteristic; however employers need to approach the issue with caution as it is likely that an employee could attempt to make out a case of disability discrimination. If an employee has a physical or mental impairment which has a substantial adverse effect on their ability to carry out normal day to day activities and is likely to last more than 12 months, they may be afforded protection by the act.

The implications for employers are vast, obese employees may have difficulty walking from their car, climbing stairs, bending, lifting and standing for long periods of time. Associated illnesses such as diabetes, back pain, depression and joint difficulties may mean significant reasonable adjustments are required in the work place.

The tribunals have stated that the test for disability is not about how it is caused, but whether there is impairment which is suffered. The Employment Appeal Tribunal refused to go so far as to say that obesity is in itself a disability, but did state that obesity may make it more likely that a person qualifies as ‘disabled’ due to the associated health problems they suffer.

 

So what does this mean? Just because an employee is obese will not give them protection under the Equality Act against discrimination, however, an obese employee who suffers severe back pain due to their obesity may have protection even though their back pain was caused by their obesity.

Clear as mud?

Employers should bear in mind whether an employee genuinely suffers from a physical or mental impairment and refrain from focussing on the cause of the impairment, instead concentrating on its effect.

Consider how long your employee had suffered and whether it is likely to be long term.

If this is the case, be risk averse and consider any reasonable adjustments which can be offered to your employee. Be cautious when taking disciplinary action and ensure all policies and procedures are up to date

Zero Hours Contract Debate

Zero Hours Contracts

The Queen’s speech announced on 4^th June that abuses of Zero Hours contracts are to be cracked down on. Although a sweeping generalisation Zero Hours Contracts (ZHCs) are extremely popular with employers and generally disliked by employees.

Although touted as providing flexibility and freedom for employees, the reality is, unless the employee on a ZHC has an element of financial security the arrangement is worrisome and open to abuse. ZHCs are important for employers, they enable them to meet demand and reduce the workforce during times when trade falls quiet without suffering the expense of employees sitting around doing nothing.

Under a ZHC an employer is not under an obligation to give an employee any hours, the hours supplied might vary from week to week, or even day to day. Abuses include cancelling shifts at the last minute; reducing hours to punish an employee and maintaining an employee can only exclusively work for the ZHC provider and no other employer. This final requirement strips away an right an employee may have to find financial security elsewhere during times when hours are scarce.

Reforms have been suggested by a number of pressure groups over the months, some want a complete ban, others want employees to be given the right to ask for minimum hours (which in itself could be open to abuse by employers limiting their liability and selecting the bare minimum).

 The Head of the CIPD public policy Ben Willmott acknowledged tighter legislation is required and that there is bad practice which needs to be address. He gave short notice cancellations as an example and exclusivity clauses.

In a recovering economy the UK workforce needs to show an element of flexibility and employers have to be able to protect their businesses in order to limit the financial damage that slow months can bring. Banning zero hours contracts could do more harm than good, recruitment would be likely to slow and knee jerk reactions in respect of redundancies may become the response of employers.

Employment Case Update: Disability and Reasonable Adjustments

Case Update: Disability and Reasonable Adjustments

 

Foster v Cardiff University was considered by the Employment Appeal Tribunal (EAT) recently. The issues were reasonable adjustments for chronic fatigue syndrome and how stress and anxiety affect that condition. Foster claimed stress and anxiety aggravated her condition and that work was causing this.

The employment tribunal dismissed the claimant’s disability discrimination and harassment claims. In her appeal to the EAT, the claimant argued that:

·         the tribunal made a mistake in not having regard to the effect that anxiety and stress had on her disability; and

·         the tribunal was wrong to conduct a comparison exercise between the claimant and a person who did not have her disability

The EAT held that the tribunal did not have to look at the cause of the disability, only its affect. In this instance the disability was chronic fatigue syndrome, anxiety and stress were the triggers, but were not part of the disability itself. There was no requirement for the tribunal to investigate the cause of the disability,

This decision is a helpful reminder that tribunals are not required to look into the cause of a disability. Therefore, on this analysis, a claimant suffering with liver disease caused by alcohol addiction would bring a claim for disability due to the liver disease. Even though alcohol addiction is the cause, the claimant could rely on the subsequent disease. Any such claimant would not however be able to rely on alcohol addiction as the impairment itself.   

The EAT also took the opportunity to clarify that the correct comparator in reasonable adjustment cases is a person who does not have the relevant disability.

Elissa Thursfield

Elissa.thursfield@gamlins.co.uk

 

Gamlins are the leading Employment Law specialists in North Wales. Are you having problems with employees at work? Is discrimination a problem in your workplace, or do you have difficulty getting your employer to recognise your disability? We can help you and provide clear, concise and accurate advice to suit your needs. 

Speak English at Work?

Arts and crafts chain Hobbycraft have been reported to have told employees that they must speak English on the premises during working hours or they could be subject to disciplinary procedures.

Staff were told that it was the chain’s policy that only English should be used and if they were caught breaching the rules there would be sanctions. A representative from Hobbycraft said:  'Having the ability to speak English is part of the recruitment criteria in our distribution centre. Therefore, we do ask that during working hours in the warehouse colleagues speak English. This is to create a good working environment where all colleagues can communicate effectively’

The firm claims employees speaking in their native tongues produces difficulties in the workplace; this has been refuted by employees.

Legally Hobbycraft are on shaky ground and they could be found to be indirectly discriminatory which could lead to compensation claims. In order to be able to defend any such claims Hobbycraft would have to show it is objectively justified as a proportionate means of achieving a legitimate aim. The would need to show good business reasons for the measures and the circumstances in the workplace.

The fact that the measures only take place during ‘working hours’ as opposed to a blanket ‘premises ban’ may assist Hobbycraft. In addition if they could show staff morale was affected resulting in high turnover and that staff were not communicating effectively as a team causing this could go towards showing the measures are justified. In addition complaints from customers or issues with customer service could also be a consideration.

 

Elissa Thursfield

Elissa.thursfield@gamlins.co.uk

 

Gamlins are the leading Employment Law specialists in North Wales. Are you having problems with employees at work? Is discrimination a problem in your workplace, or do your staff suffer with language barriers? Contact us to discuss how we can help you mitigate your legal risk.

Police Pay Out Controversy: Who is to blame? (The Michael Baillon Case)

Police Pay Out Controversy

The press has been rife with outcry over the £449,000 sum awarded to Mr Michael Baillon for his constructive dismissal from the police force. Commentators have blamed the ‘compensation culture’, ‘greedy lawyers’ and ‘broken system’. Many have asked why a policeman who had arguably behaved improperly should be awarded such an enormous sum from tax payer funds.

People have been quick to blame my Baillon and his legal team, how dare he be awarded such a sum. Critics should however bear in mind he had a significant helping hand from the police along the way.

The incident at the crux of the matter is the videoed antics of Mr Baillon as he attempted to remove a member of the public from his car. The car had already been stopped once as the driver had failed to wear a seatbelt. The driver subsequently drove off while the police were speaking to him leading to a chase. Upon stopping the car some time later the police attempted to break into the car in order to remove the un-cooperative driver. The subsequent video  led to Mr Baillon becoming a laughing stock amongst this colleagues.

Crucially, following an inquiry, Mr Baillon was found not guilty of misconduct but the force decided to remove him from front line duty. In addition to removing him from his position Mr Baillon suffered sustained bullying from his colleagues in relation to the incident, this bullying lead to his resignation.

Critics have stated ‘he should have a tougher skin’, ‘work place banter is the norm, get used to it’, and ‘if he couldn’t take it he shouldn’t be in the police’. Fundamentally employees are entitled to an abuse free and safe workplace. The police failed to provide Mr Baillon with a safe work environment and failed to intervene when colleagues tormented him.

So why the enormous pay out? As a member of the police force Mr Baillon was fortunate to be part of a final salary pension scheme. Immensely valuable such pension schemes are generally only available in the public sector, police, fire service and teachers are good examples. It is these pension schemes which have been the source of multiple strike action over the last few years. Dubbed ‘gold plated pensions’ they effectively promise to pay out for the rest of your life based on the salary you were earning when you retire. Defined contribution schemes, which the majority of the private sector receive, are based on what each individual pays in and how that investment performs, there is no guarantee with regards to what you will receive when you retire.

Mr Baillon’s pay out was based on the losses he would experience for no longer being part of his final salary pension scheme, he would now be subject to the fate of ordinary pension schemes and uncertain retirement.

So who is at fault? The driver who broke the law and failed to stop and showed a blatant disrespect for the police officers’ authority? The police for failing to protect one of their employees? The colleagues for implementing a sustained bullying campaign? The case highlights the need for the force to get their HR systems in order and start running a tighter ship within their stations. It sends a stark message to employers, know your work force, understand your employees and act quick.

 

Gamlins are the leading Employment Law specialists in North Wales. Are you having problems with employees at work? Is bullying a problem in your workplace? Contact us to discuss how we can help you mitigate your legal risk.

elissa.thursfield@gamlins.co.uk

Settlement Agreements: An Employer's Guide

Settlement Agreements: An Employer’s Guide

What is a settlement agreement?

A settlement agreement (formerly known as a compromise agreement) is a legally binding agreement between a business and an employee under which the employee agrees to settle their potential claims and in return the employer will agree to pay financial compensation. Sometimes the agreement will include other things of benefit to the employee, such as an agreed reference letter.

Claims which can be settled include Unfair Dismissal and Discrimination.  

There are a number of statutory claims that cannot be settled by entering into a settlement agreement, including some types of:

• Personal injury claims.
• Pension claims.
• Claims following the transfer of a business.

When are they appropriate?

An employee can make a claim against a business under both their contract of employment and under statute. In many cases, a business may want to make a payment to an employee in return for an effective waiver of their potential claims. Businesses can enter into an agreement with an employee to settle potential claims when they are still working for the business, but in most situations, their employment will have ended (or be about to end). Although it is usual for compromise agreements to be entered into where employment has terminated (or is about to terminate), it is possible to enter into one where employment is continuing. Although it is usual for compromise agreements to be entered into where employment has terminated (or is about to terminate), it is possible to enter into one where employment is continuing. Unlike contractual claims, which can be waived by entering into a contractual waiver of such claims, statutory claims can only be waived in prescribed ways, one of which is by means of a compromise agreement Although it is usual for compromise agreements to be entered into where employment has terminated (or is about to terminate), it is possible to enter into one where employment is continuing. Unlike contractual claims, which can be waived by entering into a contractual waiver of such claims, statutory claims can only be waived in prescribed ways, one of which is by means of a compromise agreem

Legal Requirements

For a settlement agreement to be legally binding, there are a number of conditions that must be met inlcuding:

• The agreement must be in writing.
• The agreement must relate to a particular complaint or particular proceedings.
• The employee must have received legal advice from a relevant independent adviser (for example, a qualified lawyer or union official) on:
• the terms and effect of the proposed agreement; and
• its effect on their ability to pursue any rights before an employment tribunal.

Possible content of a settlement agreement

Other than the legal requirements listed above, the contents of a settlement agreement are largely at the discretion of the business and the employee involved. Examples of common clauses include:

• Compensation for loss of employment.
• Contribution to legal fees.
• Waiver of claims by the employee, including warranty that the claims listed are the only claims which the employee has against the employer.

Confidential information

Protecting confidential information is usually crucial to a business and therefore settlement agreements often contain confidentiality provisions, you solicitor can advise you in relation to these to ensure they are enforceable and sufficiently protect your business.

 

Gamlins are Employment Law specialists based in North Wales with a wealth of experience advising employees and businesses across the region.

 

Elissa Thursfield elissa.thursfield@gamlins.co.uk

 

Health and Safety Respite for Employers: Deregulation Bill

Deregulation Bill

The draft Deregulation Bill has been published by the Government which aims to reform rules about health and safety, apprentices and employment law. The idea behind the bill is to reduce red tape and ease the burden on businesses.

In order to become law the Bill requires approval from Parliament; however it is certainly a step in the right direction for employers who feel strangled by regulation.

Over 1,900 regulations are in line to be reduced or scrapped altogether and it would amend 182 pieces of legislation. Measures include removing health and safety rules for self-employed workers in low risk environments potentially saving £300,000 a year. In addition it would exempt hundreds of thousands of small businesses from health and safety inspections.

The planned introduction of a new portable Criminal Records check will ease the administrative burden on employers, meaning results can be viewed online and save the need for new checks for many cases.

We will be keeping an eye on the Bill and will update on its progress. Subscribe to our blog for automatic updates and to keep abreast of issues affecting employers and employees on a weekly basis.

Gamlins are Employment Law specialists based in North Wales with a wealth of experience advising employees and businesses across the region.

 

Elissa Thursfield elissa.thursfield@gamlins.co.uk

Maternity Leave: Returning to the Same Job

Maternity Leave: Returning to the Same Job

Kelly v Secretary of State for Justice is a recent Employment Appeal case which has provided some clarification on the rights of women on maternity leave who return to the workplace.

In this case Ms Kelly worked as a Healthcare Officer in a prison and had done so for 15 years. Her contract of employment stated she was a ‘prison officer’. Ms Kelly went on maternity leave and when she returned to work the healthcare work had been outsourced and the only job available to her was as a prison officer.

She claimed Regulation 18 of the Maternity and Parental Leave Regulations 1999 had been breached. This regulation states that a woman who goes on maternity leave is entitled to return to the same job. She claimed that she only spent 5% of her time in 15 years working as a prison officer. She lost at Tribunal and brought an appeal. The Tribunal had stated her contractual position was a prison officer therefore it was suitable for her to return to it.

The EAT (Employment Appeal Tribunal) allowed her appeal and stated the Tribunal made a mistake by stating that because her employment contract described her as a prison officer, it must be suitable and appropriate for her to return to this position after her maternity leave. The EAT stated there were other matters which the Tribunal should have addressed first, such as the matter of her nurse training, the changes that would take place to her work patterns and the actual work she completed. It was premature of the Tribunal just to look at the employment contract.

The case has been sent back to the Tribunal to be reheard.

If you have any questions about Maternity Leave or want to know whether the Maternity arrangements you operate in your business are compliant with the law, don’t hesitate to get in touch.

Gamlins are Employment Law specialists based in North Wales with a wealth of experience advising employees and businesses across the region.

 

Elissa Thursfield elissa.thursfield@gamlins.co.uk

 

Health and Safety at Work: £20K fine for overturned tractor

Health and Safety at Work: £20K fine for overturned tractor

Bristol City Council were recently fined due to health and safety failings after their park keeper suffered injuries when she was thrown from a tractor.

The HSE (Health and Safety Executive) investigated the incident and found that the park keeper was driving the tractor in line with her duties towing a trailer, she braked on a slope causing a skid, she turned to avoid a fence but the tractor overturned and she was thrown from her seat.

The HSE prosecuted the Council finding that there was no seat belt or restraint and the Council failed to ensure she had received adequate training on the use of the tractor. The tractor had also been acquired without the normal procurement procedure and no supplier training was provided.

The park keeper suffered a broken pelvis and was off work for a year, she has since had to return to a job behind a desk and can no longer work as a park keeper.

The HSE considered the incident to avoidable and noted the employee suffered considerable pain and distress and unable to use her three years of training as a park keeper, she will also require further surgery.

Bristol City Council of City Hall, College Green, Bristol, was fined a total of £20,000 and ordered to pay £4,700 in costs after admitting two breaches of the Provision and Use of Work Equipment Regulations 1998.

Keep your employees safe at work and ensure that you have adequate systems in place to protect you and your business. HSE prosecutions take place in the criminal court system and can result in directors having a criminal record. In addition businesses could face civil claims from their employees for compensation. For further information about health and safety at work, or to discuss and accident at work please get in touch.

elissa.thursfield@gamlins.co.uk

John Hoult: http://gamlinslaw.co.uk/people/
Ron Davison: http://gamlinslaw.co.uk/people/
Sion Williams: http://gamlinslaw.co.uk/people/
Elissa Thursfield: http://gamlinslaw.co.uk/people/

www.gamlinslaw.co.uk
 

Dismissal of Employees: Effective Notice of Termination

Effective Notice of Termination

The EAT decided an interesting case in relation to the alleged termination of a teacher’s employment, Birmingham City Council v Emery

Ms Emery was a teacher at Benson Community School who was dismissed due to lengthy absences for health reasons. As she worked for a community school, legislation dictates that although the decision to dismiss comes from the governing body of the school, the actual employer is the local authority.

In this instance the Ms Emery was notified by the governing body that she was being dismissed, the following day the local authority wrote to her serving notice that her contract had been terminated. The EAT held that the notification from the governing body was not the act which terminated her employment contract.

Why was this so important? In this case had the dismissal been on the earlier date (when the governing body notified Ms Emery), she would have been given sufficient notice. However, as valid notice was not served until the next day when Ms Emery was notified by the local authority the EAT held the deadline had been missed and Ms Emery was entitled to payment of notice (£8,104).

Lessons learned? Employer should ensure they

-       are serving effective notice of termination, if you are not sure, take advice

-       know the date termination was served, time limits and deadlines can cost you money

-       are familiar with the terms of their employee’s contracts

Gamlins can provide a ‘health check’ for your employment needs, drop us a line to discuss how we can mitigate risk to your business. As a North Wales firm we want to help businesses across the region with their employment needs.

Call 01745 343 500 and ask to speak to a member of our Employment Team

Our Employment Solicitors are:

John Hoult: http://gamlinslaw.co.uk/people/
Ron Davison: http://gamlinslaw.co.uk/people/
Sion Williams: http://gamlinslaw.co.uk/people/
Elissa Thursfield: http://gamlinslaw.co.uk/people/

www.gamlinslaw.co.uk