I would like to wish a Happy New Year to all our clients and the subscribers to this email. I hope that you all had a restful Christmas break and are now back at work and ready for the challenges for the coming year.
Redundancy is the buzz word throughout the UK at the moment and not just in legal and HR circles. With the CIPD predicting that there will be 600,000 dismissals for redundancy this year, now more than ever is the time to brush up on the issue. We have been advising our clients on ways to avoid redundancy wherever possible. This includes changing employees' contracts of employment to suit the needs of the business, including reducing hours and pay. This is a very complex subject area and the consequences for getting it wrong can be severe, however, this approach can save businesses thousands of pounds and free up much needed cash-flow. If any of the subscribers to this email wish to utilise such a service then please call me on 0151 239 1010 and I will be happy to go through your options.
HBOS are in more trouble this month. Whilst the £16million Mona Awad is claiming may seem like a drop in the ocean when considering the money that has vapourised over the past 12 months, it represents a new high water mark in discrimination litigation. If Ms Awad wins her case (and from the initial outlook it appears that she will win on most points and, therefore, it seems increasingly likely that she will win on all points) the tribunal ought to reduce the sum of £16million in line with the reductions made in personal injury cases. However, it will still be an enormous sum if she can show that her career has been permanently destroyed and she would have survived the current banking cull. Has the time come to bring discrimination and TUPE cases within the jurisdiction of the High Court? Well, that is not for me to say, but with awards far outreaching those made for personal injury and considering increasing complexity of proceedings, it may not be long before the government feels it has no option.
Finally, the annual call for transparent pay has been made early this year (see below). If anybody wishes to enquire as to the pay of colleagues that they could reasonably compare themselves against, then they have the entitlement to lodge a questionnaire with their employer which will reveal to them whether or not they are being paid less. If they do not feel that they are being paid less then they will not lodge a questionnaire. If companies are forced to reveal their pay structures it will not only bring a huge rush of equal pay litigation (those who work in the public sector can testify to the horrific burden that this inevitably brings) to the private sector at a time that it can ill afford it, it will promote disharmony and ruin morale. This is an ill-timed statement at best.
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 firstname.lastname@example.org.
1. New compensation limits
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We begin with a brief ready reference for the compensation limits in tribunals mentioned in last month's newsletter.
The trigger date is 1st February which means that if the relevant event, e.g. unfair dismissal, is on or after that date then the new rates will apply.
We outlined the impact of the new procedures, effective 6th April 2009, in last month's newsletter.
You need to make sure your employment documents are updated to take into account the changes to the procedures in good time. We are contacting subscribers to implement the changes. If you are not yet a subscriber, now is the ideal time to get your paperwork sorted out and up to date! Contact Kath Kelly on 0151 239 1079 for details of special rates currently available.
The Guardian has reported that employers could be "named and shamed" in league tables revealing pay inequalities between male and female employees.
The Equalities Office is drawing up an amendment to the Equality Bill to require employers to publish in annual accounts the number of men and women in particular pay bands. According to Government statistics published in November 2008 men are paid on average 17.1% more than women for full-time work and for part-timers the gap is 36.6%. The EHRC has estimated that the disparity means that, over a lifetime, women in full-time employment are on average paid £369,000 less than their male counterparts.
The Equality Act will replace the Equal Pay Act 1970 and the intention is clear. Equal pay claims have traditionally arisen most frequently in the public sector where data supporting such claims has been more readily available. By requiring public and private sector employers to publish this information, potential claimants will in appropriate cases be provided with clear prima facie evidence of gender pay inequality which employers will find very difficult to rebut. The important change is that they will not have to request this information. These claims are almost invariably complicated, protracted and very time-consuming.
Not surprisingly, the proposals have prompted angry responses from employers' representatives with the CBI describing the proposals as forcing employers to produce "meaningless statistics" while the Federation of Small Businesses have characterised the proposed requirements as "overly prescriptive".
The response from Lady Prosser, deputy chair of the EHRC is unsympathetic:
"[It's] not painful or arduous for employers because most of them would have that information on their pay systems anyway. At the same time it's enough to give a good picture of which firms are lagging behind when it comes to equality. That's not a good image to have and those firms will just have to do something about it if they don't want to be embarrassed."
The advice is clear: employers should be giving thought now to what such statistics would be likely to reveal about their organisation. It would be sensible to prepare the figures now and see what is revealed. If there is a notable disparity (which, statistically, is likely in many cases), employers need to consider what they can do to address what may become a very significant problem.
The Chartered Institute of Personnel & Development has estimated that 600,000 workers face redundancy during 2009, with many others facing pay freezes and pay cuts.
Since the implementation of age discrimination legislation, the risk of employees claiming that they have lost out because of their age (old or young) has become a real concern for employers. This is particularly applicable in redundancy situations. Although most employers know that they have to apply objective and fair criteria for selection for redundancy, it is vital that it can be demonstrated that appropriate procedures have been applied.
Although it might appear anomalous, the legislation provides that statutory redundancy payments can be calculated with reference to age and length of service. However, the same protection is not necessarily available for enhanced redundancy pay and other severance provisions. Enhanced schemes are potentially unlawful because payments based on age are directly discriminatory and payments based on length of service are likely to be indirectly discriminatory because younger employees are likely to have less service.
Fortunately, Regulation 33 provides assistance for employers. Enhanced schemes are exempted from the Regulations if they mirror the statutory provisions save for removing the statutory cap on payments made and apply a direct but higher multiplier for calculation of a week's pay. Schemes that derogate from the Regulations in any other way will be likely to be discriminatory unless they can be objectively justified which, in most cases, will not be possible.
Employers are at risk of making well-intentioned but inappropriate arrangements. For example, there may be a temptation to provide a long-term employee with an additional payment. Another example of discrimination is avoiding the selection for redundancy of employees who are approaching retirement.
The best approach is to consider the selection criteria and proposed payment arrangements and then consider whether anyone is going to be treated in any way differently from the other redundancy candidates. If so, there is likely to be a problem which needs to be addressed. You should always contact us for advice as soon as you are considering a redundancy exercise.
There has been a relatively minor but nonetheless important amendment to the law relating to spent convictions and the rehabilitation of offenders.
With effect from 18th December 2008 the Rehabilitation of Offenders Act 1974 has been amended so that references to a conviction are also taken as referring to a caution (Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England & Wales) Order 2008).
The Criminal Justice and Immigration Act Schedule 10 provides corresponding protection to prevent unauthorised disclosure of spent cautions.
As previously reported, cases under the religious discrimination regulations have been fairly rare but the Employment Appeal Tribunal case of London Borough of Islington -v- Ladele has attracted a good deal of media attention as well as an important analysis of how the law in this area can be applied.
The appeal was heard by the President of the EAT. Ms Ladele was a Registrar of Births, Deaths and Marriages. She is also a committed Christian. Following the implementation of the Civil Partnership Act 2004 she refused to participate in same sex ceremonies. She made clear that she believes that marriage is the union of one man and one woman for life to the exclusion of all others and that same sex unions are contrary to God's law and a sin. Mr Justice Elias noted that it is not the function of a court to question the rationality of those beliefs.
Ms Ladele's line manager decided that civil partnership duties should be shared out among existing staff in roughly the same proportion as marriages and therefore including Ms Ladele. Two other registrars also objected. One accepted an offer of different employment on the same pay and the other, a Muslim woman, left the Council's employment. Ms Ladele was offered the opportunity to limit her civil partnership duties to simple signing processes rather than full ceremonies. This was offered as a temporary measure which would be kept under review. However, when the offer was made the letter included the following:
"...your actions, if you were to refuse to undertake any work in respect of civil partnerships, could be seen as a failure 'to treat all members of the community and other employees fairly and equally, regardless of their sex, race, colour, national or ethnic origin, sexuality, religion, age, disability or marital status' and this could be considered gross misconduct. In this case you might also be subject to formal disciplinary action."
Ms Ladele rejected the proposed arrangement and wrote to the employer setting out a "formal record" of her concerns. She avoided civil partnership duties by changing rosters but two gay employees complained that refusal to conduct civil ceremonies was as an act of homophobia and that they were discriminated against.
The dilemma facing the employer was obvious. A decision was made to instigate a disciplinary process against Ms Ladele. The process ultimately led to a finding that Ms Ladele was guilty of misconduct as a result of failing to carry out her duties. Ms Ladele pursued a claim alleging direct and indirect discrimination and harassment. The employment tribunal agreed but the EAT decided that that there was no proper basis for concluding that any of the alleged forms of discrimination had been established so a finding of no discrimination was substituted. Ms Ladele's solicitor has indicated that his client intends to appeal the decision.
Although the decision is based on consideration of the particular facts of the case, it provides a useful demonstration of the uncomfortable relationship which can be caused by seeking to accommodate ostensibly incompatible positions. The connection between law and religion has a long and frequently chequered history and this modern example demonstrates the real dilemmas which can confront both employers and employees. Fortunately it is not our function to pass judgement!
The Government's Employment Agency Standards Directorate has recently published its latest annual report. As the name suggests, the Directorate's function is to root out and take action against agencies that exploit workers. Examples of action taken include:
The Directorate has recently focused its attention on agencies supplying workers in the contsruction industry. Of 52 agencies inspected, 40 were found to be breaking regulations with a total of 192 separate infringements. Members of the public can report agencies suspected of breaking the law by calling 0845 955 5105.
The new Vetting and Barring Scheme, operated by the Independent Safeguarding Authority (ISA) will have a major impact on the recruitment and monitoring practices in respect of people working or volunteering with children.
The Scheme replaces existing regimes including List 99. The ISA will determine who is unsuitable to work or volunteer with vulnerable groups based on information supplied by agencies, government departments and the Criminal Records Bureau. Once fully implemented it will be illegal to engage someone in a regulated activity who is not registered and has therefore not been checked by the ISA. The Scheme covers education, health and care sectors and will therefore apply to about 11.3 million people.
The ISA has identified key actions which should be taken by relevant employers and recruitment managers by 20th January 2009, the date from which barring decisions will be taken by the Authority. Although disclosures should continue to be made to the existing agencies, referrals should from 20th January be made to the ISA. With effect from the same date, all employers and supervisory authorities have a legal duty to respond to requests for information from the ISA. During the transitional period, employers should continue to check previous employment history and references carefully. These checks should include, if appropriate, asking the most recent employer if they have made a referral of any misconduct with a view to possible barring.
One might reasonably enquire why this information is being provided so near to the launch date. The reason is that the ISA is the product of a Government announcement made in September 2008 and, at the time of writing, details of how and where to provide notices of referrals and make other enquiries are yet to be published. We can do no more than pass on the Government message that notification of the introduction of the Scheme "will be complemented by wider messages from the Government about the new Scheme overall, in the run-up to 'go live' in autumn 2009". All we can say for the moment is "watch this space"!
Mona Awad, a corporate manager with HBOS, has alleged in a tribunal case in Nottingham that she was accused of trying to "sleep her way to the top". Included in a catalogue of seriously inappropriate behaviour are claims that:
Ms Awad says that another work colleague asked her whether she was an "active Muslim" and that when she asked what this meant he said "do you carry bombs on trains?".
In a move reminiscent of American cases, Ms Awad's solicitor, Lawrence Davies, has claimed that punitive damages should include a percentage of the bank's gross turnover during the period when the alleged discrimination occurred.
HBOS has upheld a number of complaints against the men who have since left their employment. The case for sex, race and religious discrimination continues.
Heather Mills' former nanny is bringing a claim against her former employer alleging constructive unfair dismissal, sex discrimination and intimidation. Just hours after notification of the claim, Sara Trumble says that she was shocked after a two minute video of her appearing to praise Ms Mills appeared on YouTube. According to the Daily Mail the clip, entitled "Sara Trumble: My Story" is a carefully edited video which mixes footage of Ms Trumble with an image of the newspaper story about the case "to make it appear as a recent interview". Ms Trumble maintains that the footage was shot months earlier at Ms Mills' home when she was still working as a childminder.
The Mail reports a close friend of Ms Trumble as saying:
"Sara is absolutely fuming about that video, but it's just the sort of stunt her ladyship pulls. All Heather's staff are ordered to film a 15-minute interview when they join, saying what a wonderful woman she is and how evil the newspapers are. She has chosen a few seconds of footage from Sara's interview and stuck them together with pictures of the story about her court case, to make it look like she's being interviewed today."
Ms Trumble claims that she was given duties way beyond her role as a childminder including giving Ms Mills naked spray tans, coming to work at 7.30 a.m. to blow dry her hair and working as late as midnight.
Ms Mills' spokesman Joe Dolce (yes, that is his name) has said that the claim that Ms Mills posted the video on YouTube is "patently untrue and false".
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