Employment SolutionsCLB Solicitors

December 2008

It's Christmas time again and, although it belies the spirit of the festive season, we are seeing the consequences of the recession here at CLB Employment Solutions. Our solicitors are currently dealing with a huge upturn in redundancy exercises, restructures and TUPE situations. This is a sure sign that the unemployment figures for the fourth quarter of 2008 and the first quarter of 2009 will be exceptionally high thus indicating that the recession will last for a reasonably long period of time. For advice on redundancy, restructure and TUPE please do not hesitate to call us. Our team has over 50 years' combined experience in dealing with these highly complex and potentially ruinous situations.

If you only read one Government Statute in 2009 let it be this one. I am of course referring to the Employment Act 2008 which is due to be passed into law on the 6th April. The law will change how workplace disputes are resolved and how the law sees the fairness of dismissal procedures. For all those who currently subscribe to Employment Solutions, your solicitor will be contacting you before the changes come into force to update your handbooks and to fully inform you of the consequences of these important changes. I have briefly outlined below the significant differences between the current law and the law as of April.

The annual awards increase for Employment Tribunals has been declared with significant increases in redundancy awards and compensation for unfair dismissal. Perhaps the Government could have suspended the increase until after the recession as many employers are already struggling to meet the cost of redundancy. The new awards take effect from 1st February so if you want to make redundancies and are able to do so prior to this date, you will save a bit of money.

Finally I want to wish everyone a Merry Christmas and a Happy New Year on behalf of all the team here at Canter Levin & Berg Employment Solutions. Our team is growing year on year to provide services to you all and we hope to continue providing you with employment law support services for many years to come.

If you have enquiries about the items featured or require any further information then don't hesitate to contact us on 0151 239 1000, freephone 08000 320974 or by e-mail to enquiries@clbemployment.com.

Regards

Will Burrows


1. The Employment Act 2008

2. Discrimination against carers of the disabled

3. Immigrant workers and ID cards

4. Incapacity Benefit phase out

5. Increase in tribunal award limits

6. And finally...pregnancy discrimination, a "bullying nun" and support claimants - become an employment judge!


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1. The Employment Act 2008

What employers need to know.

The Employment Act 2008 will have many practical influences in the day to day lives of employers, HR professionals and managers. Along with the abandonment of the three step dismissal procedures, the dreaded mandatory grievance procedures are to go as well. This will benefit employers as they will not be held accountable for automatic unfair dismissal for failing to follow the three step dismissal procedures, nor will they be punished as harshly for mistakes in the grievance process. Possibly the most welcome change for employers will be that there will be no requirement for an employee to lodge a grievance before bringing a tribunal claim. Why would this be welcome I hear you say? Well, any employer who currently deals with problem employees who lodge grievance after grievance (especially if they are aided by union representatives) should no longer experience the resource wasting exercise of multiple grievance meetings and appeals. There will also be no need for the modified grievance procedure for ex-employees. This is all tempered slightly with the removal of the requirement to lodge a grievance before issuing proceedings, however, the Employment Act 2008 is a welcome change for most employers.

The changes at a glance

Grievance procedures

Pre April 2009

An employee must raise a grievance and then wait 28 days before issuing a claim in a number of specified cases. Each claim in respect of these specified cases must be subject to a valid grievance. Employers face an uplift of up to 50% for failing to comply with the grievance procedures. Ex-employees must lodge a grievance if they are to bring specified claims and can invoke the modified procedure.

Post April 2009

Although employees will have the right to bring grievances, they are not compulsory steps prior to lodging a claim and therefore the way employees treat grievances will change. There will be an obligation on the employer to respond appropriately to a genuine grievance, however, employers will not have to comply with the onerous procedures currently applicable unless they are embedded in their contracts of employment. We suggest taking advice about formalising new procedures that are less onerous on employers but still allow the employee the right to submit grievances. Employers will not have to hear grievances from ex-employees and the modified grievance procedure is no more. Tribunals can award an uplift of up to 25% if they feel that the employer has acted unreasonably but this is at the discretion of the tribunal.

Dismissal and disciplinary procedures

Pre April 2009

The three step procedures in the Employment Act 2002 (letter, meeting, appeal) must be followed in all disciplinary and dismissal actions. Failure to follow them can result in an uplift of up to 50% and the dismissal will be labelled automatically unfair.

Post April 2009

There will be no three step procedure and no automatic unfairness. If the employer has failed to follow a reasonable procedure, the tribunal can, at its discretion, apply an uplift of up to 25% although it is not bound to do so. An employer must still show that the dismissal was for a fair reason.

Redundancy

Pre April 2009

Employers are bound to follow the three step dismissal procedures for redundancies under 20 people alongside consultation. For 20 and over employees the employer must comply with the provisions in the Trade Union & Labour Relations Act 1992 Chapter II section 188.

Post April 2009

There is no need to follow the three step procedure. Dismissals for redundancy will be simpler and more cost effective and more in line with the procedures under TU&LR Act Ch II section 188.

Fixed term contracts

Pre April 2009

The three statutory procedures must be followed when dismissing an employee on a fixed term contract.

Post April 2009

No such procedure needs to be followed but be careful as the expiry of a fixed term contract of more than two years could lead to a redundancy situation.

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2. Discrimination against carers of the disabled

An employment tribunal has held that, at least in some circumstances, the Disability Discrimination Act 1995 (DDA) provides protection to fully fit employees.  How can this be? The answer is that this happens if a non-disabled employee is discriminated against by their employer for fulfilling caring responsibilities they owe to someone who is disabled.

Sharon Coleman worked as a legal secretary with a firm of solicitors, Attridge Law.  She has a disabled son born in 2002.   Her request to her employer for flexible working arrangements in order to care for the boy was turned down.  She then accepted voluntary redundancy and made a disability discrimination claim against her now former employer (and, although irrelevant for purposes of this note, a claim of unfair constructive dismissal).  She has now won the right to bring the DDA claim.

The main relevant provision in the DDA provides that "A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person". 

This provision was added (as s.3A(5)) in 2004.  It was designed to give effect to a then recent EU Directive.  The European Court subsequently held that this directive requires Member States to ensure that people in the position of Ms Coleman are protected against discrimination.  The London South employment tribunal, hearing Ms Coleman's case, was  in a difficult position.  It had to decide whether it could stretch the meaning of the wording introduced in 2004 to comply with the Directive or give the wording its natural meaning.  While the wording is not exactly a model of clarity it is at least clear that if given its natural meaning Ms Coleman's claim would fail - and also that the British Government would be obliged to change the wording yet again.

In the event, after considering rules established over several years on how UK law should be interpreted in the light of EU law, the tribunal decided it could and should interpolate additional words into the provision noted above to make sure it complied with EU law. The tribunal agreed with Ms Coleman's barrister that the wording could and should be read as providing that:

"A person directly discriminates against a disabled person or a person associated with a disabled person if, on the ground of the disabled person's disability, he treats the disabled person or a person associated with the disabled person less favourably than he treats or would treat a person not having that particular disability or association (as the case may be) whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person or the person associated with the disabled person".

Thus what is sometimes referred to as "associative discrimination" has now been held to be unlawful in the UK. 

Although this case was concerned only with disability discrimination,  the same principle is likely to apply to discrimination by reason of religion and belief, age, or sexual orientation all of which are covered by the same Equal Treatment Framework Directive 2000/78/EC.  

Of course there is more to it than set out in the short outline above and any employer or employee who might be affected would be well advised to take expert advice.

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3. Immigrant workers and ID cards

From 27th November 2008 a Tier 2 immigrant from outside the EEC has had to have a Certificate of Sponsorship issued by an employer licensed as a "Sponsor" in order to be allowed into the UK.  

The new system replaces, and toughens up, the previous work permit system.  It relies on the prospective immigrant having a certain number of  "points" (the required number of points varies depending mainly on the "tier" group).  Points are awarded to reflect, for example, the migrant's ability, experience and age and the level of need within the sector in which the migrant will be working. The complexity of the detail, and the red tape involved, mean that specialist advice will be essential save in the simplest of cases - however applications MUST be made by the sponsoring organisation not by advisers or representatives.

It may be helpful to address two basic matters: What is a Tier 2 immigrant?  And what is a Sponsor licence?

  • Tier 2 immigrants.   In essence Tier 2 consists of skilled workers from outside the EEC with the offer of a job needed to fill a gap in the UK workforce as identified by the Migration Advisory Committee.  The MAC publish a  summary list of relevant occupations on their website plus a more detailed report published on 9 September 2008.  Tier 2 also covers intra-company transfers (where the employee works for a multi-national and is to be transferred to the UK), sports people and ministers of religion.

    Tier 2 workers cannot apply for permission to enter or stay in the UK without a certificate of sponsorship from an employer who has a sponsor licence (although having a certificate of sponsorship does not guarantee permission to enter or stay).

  •  
  • Sponsor licences. To obtain a licence, a prospective sponsor must apply to the Home Office (UK Border Agency) with specified documents. Applications must be made online but a copy of the application form is available for download. There is a non-refundable application fee of £1,000 (reduced to £300 for small companies and charities).  UKBA provide a helpline on 0845 010 6677 together with extensive guidance notes on their website.

    Once an organisation has been granted a licence it can issue a certificate of sponsorship to an intending migrant using the online sponsorship management system. The system is password protected and access is open only to licensed sponsors. The migrant must then apply for permission to enter or stay in the United Kingdom, quoting the certificate of sponsorship number on their application form.


  • ID cards.  A couple of days earlier, separately from the "Tier 2 points based system" noted above but related to immigration control generally, a compulsory ID card system started.  On 25th November 2008 the Home Office began issuing ID cards to  people applying for leave to remain in the UK as a student or based on marriage.  Identity card centres for foreign nationals were scheduled to be open in Cardiff, Glasgow, Northern Ireland, Sheffield, Solihull and Liverpool by mid-December.

    It is intended that all new foreign nationals and those extending their stay will be required to have an ID card within three years. It is estimated that by the end of 2014/15 about 90 per cent of all foreign nationals will have been issued with one.
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4. Increase in tribunal award limits

On 1st February in each year, there is an inflation linked increase in the statutory maximum limits on many awards made by employment tribunals.  The government has recently published the increases which will take place as from 1st February 2009. Full details are in the Employment Rights (Increase of Limits) Order 2008, made on 24th November 2008.  The increases apply where the "appropriate date", generally the date of the event which triggers the claim (e.g. a dismissal), falls on or after 1st February 2009.

The two main changes coming into effect from 1st February 2009 are:

  1. an increase from £330 to £350 in the limit on a week's pay which can be taken into account when calculating statutory redundancy pay or the "basic award" component of unfair dismissal compensation and which applies to government guarantee arrangements for employees where an employer becomes insolvent; and
  2. an increase in the maximum "compensatory award" component of unfair dismissal compensation from £63,000 to £66,200.

The result is that the absolute maximum statutory redundancy payment increases from £9,900 to £10,500 and the absolute maximum unfair dismissal award in "ordinary" cases increases from £72,900 to £76,700

In some unfair dismissal cases, generally those where dismissal is for a reason which makes it automatically unfair, there is no statutory limit on the amount an employment tribunal can award.  This is also true of discrimination cases - again there is then no statutory limit on the amount an employment tribunal can award.

The Daily Telegraph reported on 8th November that it had obtained figures showing that the amount awarded in employment tribunals "rose past £32 million last year".  No doubt next year there will be a further increase.

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5. And finally...pregnancy discrimination, a "bullying nun" and support claimants - become an employment judge!

Congratulations to the expectant mother? - maybe not

A tribunal in Scotland heard this month that a female boss offered advice to a pregnant employee to "have a bottle of gin and a warm bath and that would solve the problem". It was claimed that Margaret Ash also asked Elaine Currie if her "little bastard had a heart beat yet" when she went for a scan in the early stages of her pregnancy.

Glasgow based Thomas Ash & Sons deny the claims. Ash, who owns the company, maintains that she supported Miss Currie during her three years' employment with them, giving her gifts and having her entire house redecorated. Miss Currie, who found out she was pregnant shortly after splitting with her partner, said that she was told she was a "silly little girl" when she asked on her doctor's advice to be switched from night to day shifts.

Holy bullying?

Teachers at St Julie's High School in Liverpool have picketed after accusing a Roman Catholic nun of using bullying tactics and "spying" on staff.

62 teachers staged a 24 hour strike in protest at the actions of "grey-haired headmistress Sister Ann Marie Gammack", a member of the teaching order the Sisters of Notre Dame.

Sister Gammack has been accused of intimidation by repeatedly sitting in on lessons and staff refused to be interviewed about the protest "for fear of reprisals". John Peat of NASUWT said that a head teacher was allowed to observe individual lessons for up to three hours per year but Sister Gammack was sitting in on three or four lessons a week.

It is also claimed that Sister Gammack has told teaching staff with whom they are allowed to mix and who they can give lifts to work - excluding the caretaker and cleaning staff.

Mr Peat said "It's like working under a dictator and it has to stop...Sister Gammack is not behaving like a head teacher and certainly not like a nun".

The local authority stated that the action has come as a reaction to a "programme of monitoring" designed to improve teaching standards.

Claimant bias - surely not?

Apparently confirming suspicions long held by employers the Judicial Appointments Commission has caused a stir by placing an advert for "chairmen of employment tribunals" (correctly known as employment judges) under the heading "Can you help put right the wrongs?".

The advert appeared in The Times on 4th December and, remarkably, includes the following:

"We all know somebody who has been unfairly treated at work, but we often feel helpless to do anything about it. If you are a barrister, solicitor, or Fellow of ILEX and have a passion for upholding the rights of workers [our emphasis], then why not consider a move into the Employment Tribunal?"

No chance of an unbalanced tribunal there then!

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advice service

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Will Burrows
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e-mail: williamburrows@canter-law.co.uk

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e-mail: katharinekelly@canter-law.co.uk

Sean Carty
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use our extensive resources on the CLB Employment Solutions website.

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If you have any enquiries about using the service or if you are interested in subscribing, please contact Will Burrows on 0151 239 1010 or e-mail willburrows@canter-law.co.uk.

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