Canter Levin & Berg Employment Solutions Canter Levin & Berg Employment Solutions
July 2011

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

It's been a busy month so I'm sorry that we're rather late in issuing our latest edition. However, I hope that you'll find our bumper edition of articles up to date and interesting. In a month which has been full of bad international and local news I've included some items which may have slipped under the radar. As ever, employment law is constantly developing and changing and I intend to help you keep on top of issues which may affect your business, as well as some posts of general interest.

We've updated the design and layout of our Employment Solutions blog where you can find the full articles and I hope that you like the changes.

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Martin Malone

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This month's news:

1. principles for uplifting compensation

The general purpose of damages and compensation in civil cases in UK law is (so far as money can do so) to put the winner of a case as nearly as possible in the position he would have been if he had not been wronged. Hence compensation is generally unlimited, although there are, of course, statutory limits in certain cases, such as the cap on the compensatory award that an employment tribunal can order in unfair dismissal cases (currently £68,400).

The Court of Appeal has recently given new guidance on how courts and tribunals should approach two particular issues which can arise in the calculation of compensation in employment cases involving dismissal.

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2. right to legal representation at a disciplinary hearing

Since September 2000 the basic rule has been that a worker has the right to be accompanied by a fellow worker or trade union representative at an employer's internal disciplinary or grievance hearing. The companion does not have the right to answer questions on behalf of the worker but does have the right to put the worker's case, to sum up that case and to respond on the worker's behalf to any views expressed at the hearing.

In January 2010 the Court of Appeal held that, in addition to these rights, a worker could in some cases be entitled under the Human Rights Act to have legal representation at an internal disciplinary or grievance hearing.

In June 2011 the Supreme Court has refined that ruling.

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3. Bribery Act 2010 now in force

The Bribery Act 2010 was passed just over a year ago, on 8 April 2010, as one of the final pieces of legislation enacted by the last Labour government. The incoming Coalition government originally intended to bring the Act into force on 1 October 2010 but postponed this until April 2011 and then postponed it again while non-statutory Guidance was finalised. The Act eventually came into force on 1 July 2011. It affects all businesses, even the smallest, and we have guidance and a template policy available for all our subscribers.

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4. health and safety law: the return of common sense?

On the one hand, the Health and Safety Executive is becoming increasingly sensitive to suggestions that the way in which it enforces health and safety rules is excessively pernickety and can lead to red tape stifling initiative and supplanting common sense. It is currently conducting a high level campaign to bring proportionality into centre stage.

On the other hand, employers may be concerned about the outcome of a case in the EAT in which an employee was dismissed for refusing on health and safety grounds to do work which their maintenance manager considered to be safe.

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5. a sign of the times: much news about redundancies

Although sometimes used as a euphemism for dismissal, "redundancy" is nothing of the sort. It is a reason for dismissal, which may of course be fair or unfair dismissal. Three recent cases have shown that the Employment Appeal Tribunal will take a practical, pragmatic view of what is fair and unfair. The first two are concerned with selection of employees for redundancy dismissal and the third concerns consultation obligations.

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6. minimum wage update

The annual National Minimum Wage (Amendment) Regulations which increase the National Minimum Wage from the 1 October each year have now been laid before Parliament in draft form. Following the recommendations of the Low Pay Commission, they will provide for increases in the National Minimum Wage from 1st October 2011 as follows:

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7. do you need to pay an employee who is held in custody?

The normal rule is that an employee who is ready and willing to work but is unable to do so by reason of sickness, injury or other unavoidable impediment will, if his contract continues and subject to its terms, still be entitled to pay. In a recent case an employee, perhaps somewhat cheekily, argued that this meant he was entitled to pay for a period when he was prevented from coming to work because he had been remanded in custody pending the outcome of criminal charges, unconnected with his employment.

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8. termination payments: a trap for employers

A Ms. O'Farrell worked for Publicis Consultants UK Ltd. Her contract provided for three months' notice. She was made redundant in May 2009 and was provided with statutory redundancy pay and holiday pay. Her dismissal letter also said that she would receive an ex-gratia payment equivalent to three months' salary (£20,625) free of Tax and NI deductions.

She successfully claimed at an employment tribunal that the company was in breach of contract by failing to pay her notice pay.

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9. £400,000 award to Jewson branch manager for disability discrimination

Jonathan Jones was dismissed by his employer, Jewson, five months after he suffered a stroke. He was the branch manager of their Cardigan branch and had worked for the company for 22 years. His employer relied on incapacity as a potentially fair reason for dismissal.

Jewson had offered just over £57,000 to settle the claim but the compensation awarded by the tribunal was £390,870.

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10. News of the World: "stigma damages" and TUPE protection?

An interesting discussion has emerged on the web about employment issues arising from the sudden closure by News International of the News of the World.

It is a central tenet of employment law that contract terms can be both express (i.e. written in to a contract) and implied. Some key duties, such as a duty of faithful service, are implied into all contracts of employment, whether or not a written contact exists. In 1998 the House of Lords, in Malik v BCCI, confirmed the existence of a mutual duty of trust and confidence.

Another, admittedly rather more tenuous, potential claim may arise under the Transfer of Undertakings Regulations (TUPE).

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10. Harrods: female employees must wear "full makeup" and even visitors must observe the "dress code"

In 2011 the extraordinary and surely outdated dress codes operated by Harrods department store have been highlighted by a complaint brought by former employee Melanie Stark.

As reported in The Guardian Ms Stark, who worked not in the makeup department but in the HMV franchise, was told that she must wear "full makeup" including lipliner, lipstick and lipgloss, as well as "base and full eyes".

The men's code is ostensibly less restrictive but perhaps with its own challenges - "slick, sophisticated and debonair" - including requirements to use deodorant, trim fingernails, avoid visible tattoos and refrain from growing "mutton chops"!

Perhaps unsurprisingly, the heavily made up Liz Jones is less sympathetic in her article in the Daily Mail

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