Canter Levin & Berg Employment Solutions Canter Levin & Berg Employment Solutions
May 2011

Welcome to the May edition of the Canter Levin & Berg Employment Solutions newsletter.

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On to employment law news and we have important information this month about minimum wage (increases), expert witnesses (removal of protection from claims), interns (or, as we more commonly refer to them, people on work placements), the Agency Workers Regulations 2010 and much more.

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Martin Malone

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April 2011
March 2011
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This month's news:

1. National Minimum Wage increases for October 2011

The Government has announced that it is accepting the National Minimum Wage recommendations in the Low Pay Commission's 2011 report.

Accordingly increases in the National Minimum Wage will come into effect on 1 October 2011 as follows:

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2. expert witnesses

The Supreme Court ruled on 30 March 2011 that (save in respect of defamation) it is time to bring to an end the immunity from suit traditionally extended to expert witnesses. So from now on if an expert witness is negligent in giving evidence in a trial it will be open to a person who has suffered as a result to sue the expert witness.

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3. interns or, as we call them, people on work placements

There has been much recent publicity about the position of interns. There are basically two issues, one legal and the other social. The legal point relates to the fact that interns are often (but not always) unpaid or low paid and so National Minimum Wage issues arise. The social point (not considered further here) has had particular significance recently following a Cabinet Office paper (Opening Doors, Breaking Barriers) launched by Nick Clegg on 5 April 2011. The media were quick to charge the unfortunate Mr Clegg with hypocrisy as he claimed to be wanting to stop unpaid internships, which generally help children of the wealthy and well-connected to get a head start while he had himself worked as an intern in his early days in politics.

So what is an intern?

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4. sex discrimination - speculation can be taken into account

Even leading law firms can get it wrong. What do employers do if they have to make redundancies and one of the candidates has been absent on maternity leave? That gave rise to a dilemma for national solicitors' firm Eversheds. They have lost a legal battle but it is possible that they will win the financial war as compensation awarded against them is to be reassessed.

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5. reporting of accidents etc. at work

In June 2010 the Prime Minister appointed Lord Young of Graffham to review health and safety laws and the growth of the compensation culture. Lord Young's report "Common Sense Common Safety", was published in October. One of the recommendations was that the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations should be amended to extend from three to seven days the period before an injury or accident at work must be reported.

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6. Agency Workers Regulations 2010 - official guidance

As is well known, with effect from 1 October 2011 new regulations come into force to prevent discrimination against agency supplied temporary workers. Under the regulations agency workers will be entitled to the same basic treatment as directly employed workers once they have completed a qualifying period of 12 weeks in a particular job. This will apply in respect of basic employment and working conditions, notably pay and working time.

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A key element of the TUPE Regulations provides that, where either the new or previous owner of a business dismisses an employee for a reason connected with its sale or transfer, then that dismissal will be automatically unfair. The only way the employer can avoid that result is if he can show that the dismissal is for an "economic, technical or organisation reason involving changes in the workforce".

So far, so good. However, the owner of a business is quite likely to "tidy it up" with a view to putting it up for sale, and this might include dismissing an employee some time before the business is actually transferred - perhaps, indeed, before a new owner has even been identified. In that situation, is the dismissal really for a reason connected with the transfer and is the employee still protected?

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8. when does employment end?

It can be critically important in employment law to know when a person's employment came to any end. This is mainly because there are strictly applied time limits for bringing certain claims in employment tribunals based on the date on which employment was terminated. For example, an unfair dismissal claim must normally be presented to an Employment Tribunal before the end of the period of three months beginning with the "effective date of termination". The power of employment tribunals to extend the time limit is extremely limited, meaning that it can be very difficult to persuade them to do so.

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9. and finally...consecutive bank holidays next year

The Royal Wedding last month serves as a timely reminder of the fact that workers have no statutory entitlement to time off on bank or public holidays (yes, technically they are different).

The Daily Mail on 28 April ran an article under the bye-line "Bosses accused of using little-known rule to wriggle out of extra bank holiday payment". So it seems a subtle distinction which is common knowledge to HR professionals and employment lawyers is perhaps not generally well understood.

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