CLB Employment Solutions
December 2010

The snow has returned this month and we have been kept busy by enquiries as to employers' liabilities to pay wages for days that employees have not been able to attend work because of the snow. Please note that each situation is different and the contract of employment should be the starting point for the resolution of each situation, however, generally employees are not de facto entitled to be paid for days that they cannot attend work.

I will keep my commentary short this month as I am sure that everyone has important matters to attend to before breaking for Christmas.

If you take one thing from this newsletter, let it be the article on challenging findings of fact at the Employment Appeal Tribunal. We regularly act for clients at the Employment Appeal Tribunal, however, nearly all these client have been our clients from the outset and have not come to us having lost a case at the Employment Tribunal. That is not to say that clients do not come to us having lost a case before the Employment Tribunal, far from it. We see lots of clients who have been unrepresented at an Employment Tribunal and, having lost, wish to challenge the judgment. Almost invariably we explain to them that their chances of appealing successfully are very slim as findings of fact cannot be challenged. The trick is to provide the Employment Tribunal with all the key facts (and most importantly, the facts that support your case) at the hearing and structure these facts in a way to help the Employment Tribunal see your side of the case. If a party is not legally represented, this can be a challenge and real injustices can be done. So if you are unfortunate enough to be served with Employment Tribunal papers in 2011, give one of our lawyers a call and let us help.

2011 will see an end to the UK retirement age. What legislation will replace it is, at the moment, anyone's guess. Consultation hasn't finished leaving lawyers and HR professionals in the dark as to what will happen when an employer wants to retire an employee. If the current law remains in place and every retirement has to be justified by the "proportionate means of achieving a legitimate aim test" then it will get extremely messy in the Employment Tribunals in 2011. The test is open to interpretation by judges and by its very nature requires a very finely balanced test. The hurdle for "proportionality" is incredibly high. Most age discrimination claims in respect of retirement that have been won by claimants have been won because although the employer's aim was legitimate, the methodology to arrive at the decision to retire and the implementation of the retirement was not proportionate to the legitimate aim. If lawyers and HR professionals have to weigh up this test with each retirement there is a wide scope for disgruntled retiring employees to bring claims.

May I take this opportunity to wish a merry Christmas to all our subscribers and clients and hope that 2011 will be a fantastic year for all both personally and professionally.

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Will Burrows

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November 2010
October 2010
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This month's news:

1. Pensions - automatic enrolment and NEST

With its cosy sounding clever name, "NEST" (the acronym for the new "National Employment Savings Trust") is in danger of distracting attention away from the more important "automatic enrolment" scheme of which it is a part, albeit an important part. The "automatic enrolment" scheme is due to start on 1 October 2012 and is designed to ensure that many more workers than at present will have their own private pension to top up their State Retirement Pension.

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2. Discrimination - religion or belief

Along with the rest of British anti-discrimination law the Employment Equality (Religion or Belief) Regulations 2003 were replaced by the Equality Act 2010 with effect from 1 October 2010. Reflecting changes originally made in 2007, the new wording ensures that any philosophical belief is covered whether or not it is "similar" to a religious belief.

This has recently produced some interesting discussion (and litigation).

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3. Employment tribunals' decisions are final unless challenged on a genuine point of law

The loser in a case before an employment tribunal is often very tempted to appeal simply because they lost. A recent case is a salutary reminder of the important point that that is generally not enough - an appeal can only be made on a point of law.

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4. Collective agreements generally (and BA cabin crew in particular)

The definition of a "collective agreement" (in the Trade Union and Labour Relations (Consolidation) Act 1992) is "any agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers' associations and relating to one or more of seven specified matters including, for example, terms and condition of employment".

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5. Default Retirement Age

The Government announced in July that as from October 2011, with phasing in from April 2011, the current exemption from anti-age discrimination law which allows compulsory retirement of employees at age 65 or over is to be abolished. The fact that there is still no official response to the consultation on the proposal although it ended two months ago may suggest a rethink is taking place (although it must be said that there is no evidence for this). If the government does back track on its proposal and decides to retain a "default retirement age" after all it would be likely to set it at a higher age than 65.

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6. The Royal Wedding and bank holidays

Prime Minister David Cameron has announced that the day of Prince William's wedding to Kate Middleton - 29 April 2011, which according to Butler's "Lives of the Saints" is appropriately the day before the feast of St Catherine - will be a public holiday to mark a "national day of celebration" (see Directgov website, 23 Nov 2010 - pedant's corner in Private Eye may yet note that the Prime Minister got it right and that the author of the Press Release, which calls it a "bank holiday", did not).

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7. Phoney discrimination claims

One of the problems with anti-discrimination law is that it sometimes results in "phoney claims". The problem must, of course, be kept in perspective and overall the fact that the law is sometimes abused is a small price to pay for the valuable protections it affords to genuine victims.

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8. Salaried Partners

The status of a "salaried partner" can be important. This is so not only if a firm is in financial difficulty (as partners but not staff are generally liable for a firm's debts) but also for employment law purposes (as partners, not being "employees", do not have many employment law rights such as unfair dismissal rights). With the arrival of LLPs (under the Limited Liability Partnerships Act 2000) new considerations have to be taken into account. A recent case shows that nevertheless the basic principles remain unchanged.

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9. And finally...butlers, housekeepers, maids and a princess

Downton Abbey celebrated and recommissioned and Upstairs Downstairs due to be revived on the BBC over Christmas. It had to happen. Not the peerage for Julian Fellowes but an employment tribunal case involving domestic staff. This time it wasn't a lady's maid and a footman being accused of spreading malicious rumours to their employer about a fellow member of staff and the employer wasn't an Earl. But even better, the employer was a Princess. A maid and occasional nanny sued her, alleging that other staff had "made up stories, gossip and lies to brainwash the Princess". And since this is the 21st century, staff now have unfair dismissal rights once they have been employed for at least one year.

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