This month we have some extremely useful tips on redundancy that I am sure all our subscribers will wish to bear in mind given the current economic climate. It is important to understand that merely because a genuine redundancy situation exists and fair and reasonable procedures are implemented in the selection procedure, it does not necessarily mean that the dismissal will necessarily be fair. The three step dismissal and disciplinary procedures apply in all redundancy dismissals where the number to be made redundant is under twenty people. Ensuring that proper consultation and scoring meetings fit in with the three step procedure is tricky and the whole exercise needs careful planning. A search for alternative employment for each person at risk of redundancy is also a crucial stage of the process. An employer is, by law, under an obligation to search for alternative employment in the business in which the employee worked and all other businesses in the same group or under the same ownership. Tribunals will often pierce the corporate veil to see if more could have been done to ensure that the employee remained in employment. My advice is to offer all types of suitable employment available to those at risk to avoid putting your business at risk.
We revisit disability discrimination this month for further analysis on two very important recent cases. Both cases sound very important when first considered but there is much discussion about whether they will be applied in employment law. Mayor and Burgesses of the London Borough of Lewisham v Malcolm (25th June 2008) is a housing case and therefore may be distinguishable on that basis bearing in mind the limited defences available to local authorities in Disability Discrimination Act cases. Coleman v Attridge Law & anor 2008 is an ECJ case that results in the inception of a form of claim that can not, at present, be litigated in the UK. We shall keep all our subscribers updated on the way the tribunals and the government decide to act on these decisions.
We're delighted to welcome Rupert Budgen to our team of employment lawyers. Rupert has a great deal of experience dealing with complex cases. Rachael Clare and Jameel Abbas have also joined our Employment Solutions team and are equally welcome.
We'll be at the CIPD conference in Harrogate from 16th to 18th September so why not come and meet the team. You might even get some free employment law advice! Further information is available here.
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.
On a personal note I hope you have all had a refreshing summer break and are rested and invigorated for the year ahead. It may well be challenging!
1. Redundancy (basics)
Given current economic conditions, redundancy is a hot topic. Here are 10 basic points to bear in mind:
And here are 10 less basic points about redundancy dismissal to bear in mind:
Since April 2003 parents and others responsible for looking after children aged under 6 (or under 18 if the child is disabled) have had a legal right to ensure that requests for flexible working arrangements (such as part-time work or working from home) are taken seriously by their employers. An important condition is that the employee must have been employed in his job for at least 6 months to be eligible.
In April 2007 the right to request flexible working was extended to employees with responsibility for caring for (i) spouses/ partners (ii) adult relatives as defined and (iii) adults living at the same address as the employee.
There has been recent consultation about extending the right to all parents with children under the age of 16. The government has now announced that this extension is to come into effect in April 2009.
A further change in April 2009 will be removal of the obligation on an employer (currently often not observed) to give written notice to an employee of agreement to flexible working arrangements. The obligation to write will NOT be removed where the employer refused a flexible working request.
As reported in our July newsletter, the House of Lords has effectively turned the Disability Discrimination Act on its head in the case of Mayor and Burgesses of the London Borough of Lewisham v Malcolm  UKHL 43. The decision is long and complex and therefore it deserves proper analysis. In particular, HR professionals and managers may wish to know how the ruling will change the way that they implement the DDA. There are two main points that may have practical ramifications for Companies.
In contrast to the case noted above which appears to favour employers, another recent case (this time in the European Court) clearly favours employees.
In essence the point in dispute was "Can the working mother of a disabled child win a disability discrimination claim if her employer refused to give her the same flexibility as regards her working arrangements as given to colleagues with non-disabled children - and called her 'lazy' when she sought to take time off to care for the child?". The European Court has said "Yes, that is unlawful disability discrimination".
On the face of it, the Disability Discrimination Act 1995 gives rights to employees who suffer from a disablity. It would need a stretched interpretation of the Act for it to be used to give healthy employees the right to take time off to care for a disabled person (the Flexible Working regulations noted above are more obviously relevant in that situation).
However as the result of the ruling by the European Court of Justice in Coleman v Attridge Law & anor 2008 the British Act will either have to be amended or be given that stretched interpretation. The ECJ has ruled that "Where an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee ....." the employer is in breach of EC anti-discrimination law.
The case concerned a Ms Coleman who has a disabled son, born in 2002, with specialised caring requirements. She was employed by Attridge Law, a firm of solicitors. She requested flexible working arrangements in order to care for the boy. Attridge Law refused the request. Amongst other claims she brought before the London South employment tribunal, Ms Coleman sued Attridge Law for disability discrimination.
The tribunal referred the question of principle to the European Court which, in July 2008, handed down the ruling noted above.
The repercussions of the ECJ decision are likely to be considerable. Although Ms Coleman's case was concerned with disability discrimination, the same principle presumably applies to discrimination by reason of religion and belief, age, or sexual orientation as they are covered by the same EC anti-discrimination law. Thus it seems that, as a result of the European Court's ruling, British law will have to recognise that employees can bring claims against their employers if they have been discriminated against because of association with a person of a particular age, sex, religion, belief or sexual orientation as well as because they are caring for a disabled person.
Entitlement to maternity leave is 52 weeks and is available as of right to all employed mothers.
Until recently there were potentially significant differences between the rights of a woman during the first 26 weeks of maternity leave ("ordinary maternity leave") and those to which she was entitled thereafter ("additional maternity leave"). Further, until recently not all women were entitled to additional maternity leave - the requirement for a woman to have been in continuous employment with the same employer for (roughly) nine months before her expected week of childbirth as a condition of entitlement was progressively removed during 2006 and early 2007
New rules were introduced in April and July 2008 which now, for most practical purposes, abolish the remaining differences between ordinary and addtional maternity leave. These rules are the Sex Discrimination Act 1975 (Amendment) Regulations 2008 and the Maternity and Parental Leave etc. and the Paternity and Adoption Leave (Amendment) Regulations 2008 .
Under the new rules, a woman's rights during additional maternity leave are upgraded to be the same as her rights during ordinary maternity leave and only minor differences continue (for example in regard to the notice which a woman must give if she intends to return to work early). The new rules apply if the woman's expected week of childbirth begins on or after 5th October 2008 and so are already operating.
The overall result is that for most practical purposes the distinction between "ordinary" and "additional" maternity leave is now of academic interest only. Employers must make sure that their maternity leave policies are adjusted accordingly.
For clarity, we should point out that the Statutory Maternity Pay rules do not (yet) mirror the rules for maternity leave. SMP is, of course, a state benefit, albeit paid by employers through the normal payroll, funded by adjustments to their liability to pay national insurance contributions. The period for which SMP is payable was increased from 26 to 39 weeks in April 2007 and the government is on record as hoping to extend it to 52 weeks by 2010. If and when this is achieved the SMP period will be aligned with maternity leave. Perhaps by then the now rather artificial distinction between ordinary and additional maternity leave will be removed.
As a general rule, the government tries to ensure that new employment law related regulations come into force on 6th April and 1st October in each year. The following employment law related regulations announced by the beginning of September come into force on 1st October 2008 (see also notes above on "Rights during additional maternity leave"):-
The first two listed above will be relevant for almost all employers. As previously advised the government has announced that the adult minimum wage rate will rise from £5.52 to £5.73 an hour in October. The youth rate for those aged 18 to 21 will be increased from £4.60 to £4.77. The government has also said that the rate for workers aged 16-17 years who have ceased to be of school age increases from £3.40 to £3.53.
As of 1 October 2008, employers will be allowed to display their employers' liability certificate in an electronic format, so long as it remains readily accessible by all employees. In addition, the requirement for employers to retain copies of their certificates for 40 years will be removed. These changes come under the Employers' Liability (Compulsory Insurance) (Amendment) Regulations 2008.
The other Regulations listed will not apply to most employers but if you think that they may affect you and you want more information please get in touch.
For an unusual slant on the law against sexual harassment at work a recent report in the Daily Telegraph would be hard to beat. The article concerns a case brought by a 22-year-old female advertising executive from St Petersburg.
She is quoted as telling the Russian judge that her middle aged male employer "always demanded that female workers signalled to him with their eyes that they desperately wanted to be laid on the boardroom table as soon as he gave the word. I didn't realise at first that he wasn't speaking metaphorically".
According to the article the judge ruled: "If we had no sexual harassment we would have no children". The article says that only two women have won sexual harassment cases in Russia since the collapse of the Soviet Union, one in 1993 and the other in 1997. This case did not add to the number.
An example best not relied on in the UK!
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