Canter Levin & Berg Employment Solutions Canter Levin & Berg Employment Solutions
September 2014

Welcome to our October employment law newsletter.

This month I've taken the opportunity to have a look at what the major political parties have been proposing in the field of employment law if they are elected into goverment in May 2015 or if, as is overwhelmingly more likely according to the bookies, two (or perhaps even three) of them get together to form a coalition. You can "click more" for each of the parties and I recommend doing so for UKIP. Pretty much everyone knows their stand on migration but, as with many other policy areas, their views on employment law are not so well known and are, how shall I put it, pretty radical!

Other areas covered this month include, according to a recent employment tribunal, some pretty unsatisfactory behaviour at a flagship in-house legal department, Essex Legal Services, the perhaps inevitable problems resulting from striking out a claim for failure to use the ACAS early concilation procedure, some limited inroads for employees of Sports Direct concerning zero hours contracts and important details concerning how the new shared parental leave provisions will operate.

Something else to be preparing for is the risk of backdated holiday claims. Last April I reported the possibility of backdated claims for holiday pay that should have included the equivalent of overtime payments. In May it emerged that holiday pay should also include the equivalent of commission. These claims have not gone away although one of the main claims settled before a scheduled appeal hearing. In recent months claims companies have been advertising for backdated holiday claims so it is reasonable to assume that numerous potentially valuable claims are not far away. If you have not already done so you should be reviewing your holiday pay clauses as soon as possible. If you are not yet a subscriber please call us on 08000 832 832 or email Katharine Kelly and we will be pleased to arrange a free, no obligation, review for you.

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Martin Malone

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This month's news round-up:

1. what do the main political parties have in mind for employment law?


With the countdown to next May's general election well under way and the party conference season behind us, now is a good time to look at what (if anything) the main political parties have in their pre-manifestos or policy briefings concerning employment law.


Nothing to see here! Having reduced access to employment protection by reverting to the two years' qualifying period for protection from unfair dismissal and introducing fees for employment tribunals, the only policy announcements of note concern proposals to curb industrial action and zero hours contracts. The proposals concerning industrial action appear pretty reasonable: (i) the ballot must have been recent (industrial action took place this month based on a ballot in 2011) and (ii) there should be a minimum 50% turnout. It seems to me that these requirements should not be unduly onerous to comply with and will result in industrial action having a greater impact on the basis that there is a genuinely significant mandate and that this has been obtained recently. Click to read more...


Unsurprisingly, Labour has focused on inequalities in the workplace, including the need for diversity monitoring, specifically highlighting social background and equal pay for women. Public sector employers may be required to publish information concerning the social background of employees while companies with over 250 employees may be required to publish the average pay of male and female employees, regardless of whether any equal pay issues have been identified in the organisation. Click to read more...


It is no surprise that UKIP has made it very clear that employment rights are not high on their agenda! there are plans for mass redundancies in the public sector on the basis that such jobs "are taking money out of the economy and wealth creation". Before he recently left the Party Godfrey Boom said "I hope hundreds, thousands of jobs will be lost". Well, you have to say that it's a novel approach to political campaigning!

UKIP has also made clear that it plans what has been described as "a bonfire of employment rights". Click to read more...

Liberal Democrats

The Lib Dems are the only ones to have spelt out firm proposals in what they have described as a "Pre Manifesto". They will focus on fairness and flexibility in the workplace by encouraging employers to provide more flexible working. They will push for fathers to take parental leave by offering them an additional "use it or lose it" month to encourage time off shortly after the birth of the child.

Along with Labour they will require companies with more than 250 employees to publish information on gender pay differences. They will also require these employers to declare the number of employees that are employed on less than the living wage (currently £7.65 per hour outside London) and to provide information comparing the top and median pay levels of their staff. Click to read more...

Green Party

Perhaps surprisingly the Green Party has by far the most advanced and sophisticated set of policies in the form of a detailed policy guide. There are far too many proposals to cover here but key points include: Click to read more...

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2. more bad behaviour - this time in an "exemplary" legal services department


Last month it was bad behaviour in the Met. This month (subject to an appeal) it is very bad behaviour in, of all places, the in-house legal department of a county council.

Essex Legal Services has been put forward as a model of a forward looking legal services department. It is an award winner and has been accredited under the Law Society's Lexcel scheme since 1999, recognising excellence in the provision of legal services. Its clients include other councils, probation trusts, fire and police authorities, schools and academies.

philip_thomson County solicitor Phillip Thomson has been the high profile figurehead of the department and seen as key to its success. He is the president of Lawyers in Local Government.

However a very different picture has emerged at a recent employment tribunal hearing. Evelyne Jarrett, who is black and was a solicitor and team manager at the Council, was made redundant in 2012. She brought employment tribunal proceedings claiming unfair dismissal and race discrimination. There was a fully contested hearing and a reserved judgment was delivered on 19 September. In the judgment Mr Thomson's credibility as a witness was called into question.

The findings made by the Tribunal are remarkable, all the more so since they are in respect of a public sector local authority employer.

Mr Thomson did make inappropriate references to Hitler, that good practices could be learnt from his management techniques. This aspect to the allegation is upheld.

Any positive reference in the workplace to Hitler has the potential to be highly offensive to any person of ethnic minority origins because of his responsibility for the murder of millions of such people and for pronouncements of belief in the superiority of people from one race over people from another, or any other. There was a culture of attributing inappropriate nicknames: starting with Mr Thomson as "Piggy Eyes" (an apparent reference to the way he looks at women), the claimant referred to as "Evil Lyn" and Ms Isaacs as "Miss Tease" which she understandably found very offensive.

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3. bogged down with rules in the search for justice


The civil courts have been beset over the last year or so with numerous technical challenges based on claims that parties have failed to follow the court rules to the letter.

They have resulted from the decision taken by senior judges, particularly the resultingly unpopular Lord Jackson, to clamp down on failure to comply with directions. As with most things in life, rigid adherence to rules without any flexibility or discretion is unlikely to result in uniform fairness, particularly when the rules themselves are far from perfect.

I have already made clear my views about the compulsory ACAS early conciliation procedure introduced earlier this year. We now have the first reported case of a claim being struck out as a result of failure to comply with the procedure, albeit with a rather more sensible and equitable outcome than has been seen in many cases in the civil courts.

Miss Thomas wished to proceed with a whistleblowing claim against her employer, Nationwide Building Society. Her ET1 claim form was presented by her solicitors to the employment tribunal on 8 August 2014. The disclosure, made on 28 March 2014, was that her colleagues had cheated in an assessment required under new mortgage rules with the assistance of one of Nationwide's managers. The claim was accepted.

In its ET3 (response) Nationwide, as well as defending the claim on the merits, contended that the claim was out of time and that the claim should in any event have been rejected as a result of failure to use the ACAS early conciliation procedure.

Miss Thomas' solicitors accepted that their client should have used the early conciliation procedure but sought a stay to allow (now not so early) conciliation, effectively to remedy the breach. Subsequently they accepted that the claim had to be rejected as defective. However they contacted ACAS and obtained an early conciliation reference number. When submitting the ET1 her solicitors should have confirmed that the procedure had been followed. Instead they ticked a box declaring that the procedure did not apply because ACAS was not empowered to conciliate on all or part of her claim. That was clearly wrong.

Accordingly Employment Judge Clarke, sitting in Cardiff, confirmed that the claim was rejected on the basis that the ET1 did not comply with the Rules of Procedure.

However Judge Clarke then went on immediately to consider whether the order he had just made rejecting the claim should be revoked. Miss Thomas' solicitors claimed that since ACAS had been contacted and a reference number obtained the defect had been rectified. On the other hand Nationwide's solicitor said that post-claim conciliation cannot be early conciliation and if the claim was allowed to proceed then this would drive a coach and horses through the new procedure.

Judge Clarke took the view that if the rejection was revoked then that would cure the "early" conciliation point because it would still be pre-claim. Once the defect was rectified the claim would be treated as being presented on the date of rectification. There would therefore be no need for a fresh claim form since it would, in effect, simply be re-dated.

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4. shared parental leave update


Last May I mentioned that shared parental leave is on its way and now it is almost upon us. Many employers have commented that the arrangements seem to be very complicated so it is timely that both the Government and ACAS have published detailed and helpful guidance.

Shared parental leave is to be introduced from next April in respect of babies due (or due to be adopted) on or after 5 April but notices requesting leave could therefore be served as early as next January. It is therefore important for all employers to understand the scheme now and to make appropriate arrangements to accommodate the new procedures.

Detailed information is available in the ACAS Good Practice Guide. However, in summary, the key features are as follows.

We have new terminology: SPL - Shared Parental Leave, ShPP - Statutory Shared Parental Pay, Continuous Leave - a period of leave in one block, e.g. four weeks, Discontinuous Leave - a period of leave arranged around when an employee will return to work, e.g. working every other week for three months and SPLIT day - a Shared Parental Leave In Touch Day.

SPL does not arise unless the mother reduces her maternity or adoption leave of 52 weeks. If she does then this opens up the possibility of her and/or her partner opting in to SPL and taking any remaining weeks as SPL. This means that the partner could commence SPL while the mother is still on maternity leave. For example a mother might choose to reduce the maternity leave period by 10 weeks, thereby reducing the overall period to 42 weeks. That means that 10 weeks could be used by the partner as SPL while the mother is still on maternity leave.

In a more extreme example a mother must take at least two weeks as maternity leave following the birth of a child (four weeks for manual work in a factory environment). She might choose to convert all her remaining maternity leave to SPL in which case both she and her partner could take nearly six months each as SPL at the same time. Alternatively the mother might return to work after three months and thereby give the partner nearly nine months' SPL.

To qualify a mother must have a partner and have curtailed or given notice to reduce her maternity or adoption leave or her pay or allowance (if not eligible for maternity or adoption leave). A parent intending to take SPL must be an employee, share primary responsibility for the child, have properly notified the employer of the entitlement and to have provided the necessary declarations and evidence. In addition he or she must satisfy the continuity of employment test (at least 26 weeks at the end of the 15th week before the child's due/match date) and the employment and earnings test (in the 66 weeks prior to the due/match date worked for at least 26 weeks and earned an average of £30 per week in any 13 weeks.

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5. Sports Direct backs down (but not out) over zero hours contracts


As I have pointed out in another of this month's articles there seems to be common consent on the part of politicians that there is a need to crack down on the exploitation of employees through zero hours contracts, particularly when those contracts demand exclusivity.

Sports Direct is one of the highest profile users of zero hours contracts, no doubt because nearly 90% of its staff are employed under them.

Earlier this week details emerged of a claim brought by Zahera Gabriel-Abrahem, a former Sports Direct worker who was employed on a zero hours contract. She brought a claim on the basis that the terms of the zero hours contracts used by Sports Direct discriminated against part time workers because they were treated less favourably than full time workers.

Back in August 2013 I attempted to establish just what is a zero hours contract since they are not legally defined. While most understand that the main characteristic is that the employer is not obliged to provide a set number of hours' work or, for that matter, any work, there are often other drawbacks for employees lurking within the contract terms. This is the issue that was highlighted by Ms Gabriel-Abrahem. She had suffered panic attacks brought on by the lack of job and financial security that resulted from the zero hours terms. In doing so she was supported by 5000 members of the campaign group 38 Degrees who assisted with legal costs, while 125,000 people emailed the chief executive and head of retail at Sports Direct, urging them to switch to guaranteed hours contracts.

A month before the employment tribunal claim was due to be heard, Sports Direct has agreed terms for settlement of the claim. Those terms include requirements for Sports Direct to make clear in job adverts, contracts and staff rooms that it does not guarantee work, sick pay or holiday pay. However, Sports Direct have made clear that the settlement has been made without any admission of liability and, significantly, they will carry on using zero hours contracts.

However, that is not the end of the story for Sports Direct.

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