Hello everyone,
I hope you are all well. My blog has moved to the following address: http://www.scesolicitors.co.uk/news.
I continue to blog and I hope you will all continue to follow me.
Kind regards,
Samira Ali
Thursday 14 June 2012
Sunday 27 May 2012
Employment law proposals to help economic growth: update
For those of you
following my blog and/or keeping up with the rapid employment law proposals
which are ultimately to assist business growth in today’s challenging economic conditions,
may find this round up of this week’s events useful.
The
Enterprise and Regulatory Reform Bill
The Enterprise and
Regulatory Reform Bill, which was mentioned in the Queens speech this year, was
laid out before parliament on the 23 May. It is essential for employers to keep
up with the bill as it sets out a number of amendments to the current
legislation.
The Bill sets out
the following amendments:
1. A mandatory
period of ACAS conciliation before presenting claims to an employment tribunal (guidance
on this will be published in due course). I think this may help employment
disputes to be resolved without any litigation.
2. Extension of limitation periods to bring a claim to the employment tribunal. This is to allow for pre-issue ACAS conciliation. Under current law the time limit to bring most claims is three months less one day (for equal pay and redundancy payment claims it is 6 months less one day), this provides very little time for parties to resolve disputes and usually results in employees bringing tribunal proceedings to protect their position.
3. Introduction of 'legal officers' to make decisions in certain cases if all parties agree in writing.
4. Employment Appeal Tribunal (EAT) cases to be heard by a judge alone, unless ordered otherwise. This is unlikely to be the case where a complex discrimination and/or whistleblowing case is heard (perhaps the tribunal needs to be renamed the ‘monobunal’).
5. Power for Secretary of State to limit unfair dismissal compensatory award to a maximum between the national median earnings and 3 x median earnings. It has been confirmed by the Department of Business, Innovation and Skills (DBIS) that they are working from a median average earnings figure of £26,000. That means (if the power is exercised) that the compensatory award will be capped at somewhere between £26,000 (one year's earnings) and £78,000 (three years' earnings). Alternatively, power for the Secretary of State to limit unfair dismissal compensatory award to one year's earnings
6. Power for a tribunal to impose a penalty on employers of 50% of any financial award, subject to a minimum of £100 and maximum of £5,000, where there are "aggravating features" (not defined), with a 50% discount for payment within 21 days. We will have to wait for case law as to how “aggravating features” is defined however I am of the opinion it is likely that the tribunals will consider how employers conduct themselves during litigation, particularly if the employee remains to be employed by them.
7. The definition of 'qualifying disclosure' in whistleblowing legislation is to be restricted to disclosures "in the public interest" (not defined). This may certainly help unwarranted claims from employees, particularly as cases concerning ‘qualifying disclosures’ are complex and lengthy lasting on average from 5-10 days.
8. 'Compromise agreements' to be renamed 'settlement agreements'. I do not think that this is likely to have any real practical effect.
2. Extension of limitation periods to bring a claim to the employment tribunal. This is to allow for pre-issue ACAS conciliation. Under current law the time limit to bring most claims is three months less one day (for equal pay and redundancy payment claims it is 6 months less one day), this provides very little time for parties to resolve disputes and usually results in employees bringing tribunal proceedings to protect their position.
3. Introduction of 'legal officers' to make decisions in certain cases if all parties agree in writing.
4. Employment Appeal Tribunal (EAT) cases to be heard by a judge alone, unless ordered otherwise. This is unlikely to be the case where a complex discrimination and/or whistleblowing case is heard (perhaps the tribunal needs to be renamed the ‘monobunal’).
5. Power for Secretary of State to limit unfair dismissal compensatory award to a maximum between the national median earnings and 3 x median earnings. It has been confirmed by the Department of Business, Innovation and Skills (DBIS) that they are working from a median average earnings figure of £26,000. That means (if the power is exercised) that the compensatory award will be capped at somewhere between £26,000 (one year's earnings) and £78,000 (three years' earnings). Alternatively, power for the Secretary of State to limit unfair dismissal compensatory award to one year's earnings
6. Power for a tribunal to impose a penalty on employers of 50% of any financial award, subject to a minimum of £100 and maximum of £5,000, where there are "aggravating features" (not defined), with a 50% discount for payment within 21 days. We will have to wait for case law as to how “aggravating features” is defined however I am of the opinion it is likely that the tribunals will consider how employers conduct themselves during litigation, particularly if the employee remains to be employed by them.
7. The definition of 'qualifying disclosure' in whistleblowing legislation is to be restricted to disclosures "in the public interest" (not defined). This may certainly help unwarranted claims from employees, particularly as cases concerning ‘qualifying disclosures’ are complex and lengthy lasting on average from 5-10 days.
8. 'Compromise agreements' to be renamed 'settlement agreements'. I do not think that this is likely to have any real practical effect.
For those of you
who are interested in reading the bill here’s a link - http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0007/13007.pdf.
The
Beecroft Report
This report which
was commissioned by the DBIS is very controversial and has been released early
due to it being leaked to the Daily Mail earlier this week. The report sets out
the following recommendations:
1. Compensated no
fault dismissal; Mr Beecroft recommends that businesses with up to 10 employees
should be allowed to dismiss employees even when they are not at fault,
providing a set amount of compensation is paid. This would mean that the
employee would not be entitled to bring a claim for ‘unfair dismissal’ however
may still bring a claim for discrimination and ‘protected disclosures’.
He goes further
and proposes that the law of unfair dismissal should be scrapped from UK
legislation altogether! You can all imagine that this caused a lot of concern
from trade unions and employment lawyers. Vince Cable, the business secretary,
suggests the support for the proposal was minimal and through his interaction
with businesses this was not a big concern. Businesses were more concerned
about finances being a barrier to growth.
Personally I do
not think that the unfair dismissal laws will be scrapped from UK legislation
and neither do I think it causes businesses that much concern. For new
employers and business owners it is important that they educate themselves in
respect to what the law is and how it should be applied to their business. This
will ultimately help them run their business.
2. Transfer of
Undertakings (Protection of Employment) Regulations 2006 (TUPE); Mr Beecroft
proposes the following recommends:
(a) The EU should
be lobbied to change the TUPE Directive so that it does not apply to a business
that is in administration.
(b) If UK law
cannot be changed to incorporate harmonisation of the terms and conditions of
transferred workers and original employees after one year, again the EU should
be lobbied to amend the Directive.
(c) UK law should
be changed so that a transferring employer can make employees redundant before
they transfer to the new company if they would otherwise have been made
redundant immediately after the transfer for valid economic, technical, or
organisational (ETO) reasons.
(d) A more
detailed explanation of the meaning of the ETO exemption, based on case law,
should be made available to employers. I think this would be very useful as employers
find TUPE very difficult to understand.
(e) The service
provider provisions of the TUPE Regulations should be repealed and replaced
with a better way of identifying whether or not a transfer is subject to TUPE.
The DBIS are
currently running a consultation on this so watch this stop I will be updating
you in due course! Personally I wonder whether further amendments to TUPE may
cause further confusion as to their implementation.
3. Collective
redundancy consultations; Mr Beecroft has recommended that the consultation
period for collective redundancies should be reduced in some instances.
Currently statute
sets out that employers who wish to make between 20 and 99 employees redundant
within a 90-day period must consult for 30 days. This rises to 90 days if they
wish to make 100 or more employees redundant. Beecroft argued in his report
that this "penalises larger business" and imposes an extra cost of 60
days' wages on any business wanting to make more than 100 people redundant.
He proposes that
the consultation period for collective redundancies should be 30 days,
regardless of the number of employees the organisation wishes to make
redundant. He also argued that if the company is in a formal insolvency process
this should be reduced further, possibly to five days.
There is some
sense in this recommendation as companies under severe financial difficulties,
unsurprisingly find it difficult to undertake the consultation required of them
and sometimes this can lead to premature redundancies.
The Government has
already launched a call for evidence on the rules governing statutory
consultations on collective redundancies, looking in particular at the
consequences of reducing the 90-day consultation period to 60, 45 or 30 days.
The call for evidence closed at the end of January and the Government has not
yet published its response to the consultation, so let’s see what they say!
4. Third party
harassment under the Equality Act 2010; the provisions place a burden on an
employer to ensure that third parties do not harass their employees. The
Beecroft report suggests that these provisions should be revoked from the act
on the basis that an employer cannot control the actions of third parties
towards its employees.
In response, the
Government launched a consultation of the third-party harassment provisions
earlier this month.
5. Reform to
employment tribunals; The Beecroft report set out a number of measures to
improve the employment tribunal process. However, Cable has stated that recent
moves to simplify employment tribunals were not as a result of Beecroft's
recommendations.
The suggestions in
this area were very similar to the ones the government is looking at, for
example he suggested that tribunals should charge fees for bringing claims.
Phew I think I
have included a comprehensive guide to this week’s reforms, I hope everyone
finds them an interesting read and if anyone has any questions please do not
hesitate to contact me on samira.ali@scesolicitors.co.uk
or alternatively why not write a comment.
I look forward to
hearing your views on whether the proposed reforms will ultimately help
businesses grow.
Sunday 20 May 2012
Are documents drafted by HR consultants privileged?
No, says the High Court in Water Lilly & Co Ltd –v- Mackay (1) DMW Developments Ltd [2012] EWHC 649 (TCC). The claimant in this case applied for an order against the second Defendant (D) to disclose, correspondence and relevant documentation, created by D’s retained claims consultancy (K).
D argued that the documentation requested attained legal professional or legal advice privilege as the parties working for the claims consultancy were qualified barristers and solicitors. However the court held that this was not enough.
The first thing the court explored was the relationship between D and K. The court noted that the retainer between D and K was for “contractual and adjudication advice”, there were no rates offered for the services of solicitors or barristers. There were neutral words used to describe some of the available services, and these were “Advocate” and “Legally Qualified Person”. Further they found the words; ‘solicitors can be retained’ suggested that these services were not included in the retainer.
The court held that the onus was on the D to establish that legal professional privilege or legal advice privilege applied and in this case this was not evidenced. The evidence was held to have established that D retained K not as barristers or solicitors but as an organisation to provide claims and project handling advice.
Further the court held that it was immaterial that Mr Mackay believed that he was dealing with practicing solicitors and barristers.
The disclosure was ordered. The judge did point out that this decision related only to legal professional or legal advice privilege, it did not deal with litigation privilege so this is yet to be tested.
This case highlights the importance of business owners/directors to instruct solicitors when taking any form of legal advice, particularly in respect to restructures which include redundancy and TUPE transfers. It is likely, moving forward, more claimant solicitors will seek applications for disclosure therefore ensure that when using any HR consultancy, there is a provision which includes the services of a ‘solicitor’ within the retainer.
If you are in a position where you are considering making redundancies or have won/lost a tender and need advice in respect to dealing with TUPE please contact me on samira.ali@scesolicitors.co.uk or 0113 350 4030 for a free initial consultation
Sunday 13 May 2012
The Queens Speech 2012: effects on employment law
The Queens speech earlier this week was focused on economic and financial reforms intended to boast the UK economy out of dare I say it what the media had termed “a double dip recession”.
The Enterprise and Regulatory Reform Bill introduces the following changes employers should be aware of:
1. Reforms the employment tribunal system by providing more options for the early resolution of disputes through ACAS.
2. Allows father’s flexible working patterns to enable them to share parenting responsibilities with their partners. Unfortunately for employers no guidance has been provided as to how this will work in practice.
3. Strengthens the framework for setting directors’ pay and shareholder power so they can hold companies to account.
4. Repeals unnecessary legislation to help save businesses time and money.
Despite having the support of David Cameron, legislation to allow gay marriages will not be brought forward in the next parliamentary session.
Other reforms:
Thousands of public workers, including police officers, teachers and civil servants, will be affected by the cuts in their pensions through the Public Service Pensions Bill. Unions are continuing to protest and the Police Federation of England and Wales lead a protect in London on 10 May 2012.
The Bill introduces the following reforms:
1. Introduces a new basis for calculating public service pensions, based on the average earnings of a member over their career rather than their salary at, or near to, retirement.
2. Request people to retire later - with pension benefits normally paid at State Pension Age (earlier for members of the police, armed forces and fire fighters' schemes). Nobody will be made to work longer, but a fair adjustment will be made to their pension if they chose to retire earlier or later.
3. Introduces cost controls so that future unforeseen changes in the cost of pensions are shared by members and employers.
4. Introduces more commonality to the powers and processes across public service pension schemes
I found it particularly interesting to note that the Defamation Bill which reforms the law of defamation to include introducing a requirement that a statement must have caused serious harm for it to be defamatory in order to discourage trivial claims and creating new statutory defences of truth and honest opinion to replace the common law defences of justification and fair comment.
I am unsure as to whether the reforms will help the economy or whether reforms such as those outlined in the The Enterprise and Regulatory Reform Bill will merely add a further layer of complexity for employers to deal with. If you are an employer who has received a flexible working/sharing maternity leave application from a male employee and you are unsure as to how to deal with it please contact me me on 0113 350 4030 for a free initial 30 minute consultation.
For those of you interested in reading the Queens Speech in full, you may find this analysis useful: http://www.politics.co.uk/comment-analysis/2012/05/09/the-queen-s-speech-2012-in-full
The Enterprise and Regulatory Reform Bill introduces the following changes employers should be aware of:
1. Reforms the employment tribunal system by providing more options for the early resolution of disputes through ACAS.
2. Allows father’s flexible working patterns to enable them to share parenting responsibilities with their partners. Unfortunately for employers no guidance has been provided as to how this will work in practice.
3. Strengthens the framework for setting directors’ pay and shareholder power so they can hold companies to account.
4. Repeals unnecessary legislation to help save businesses time and money.
Despite having the support of David Cameron, legislation to allow gay marriages will not be brought forward in the next parliamentary session.
Other reforms:
Thousands of public workers, including police officers, teachers and civil servants, will be affected by the cuts in their pensions through the Public Service Pensions Bill. Unions are continuing to protest and the Police Federation of England and Wales lead a protect in London on 10 May 2012.
The Bill introduces the following reforms:
1. Introduces a new basis for calculating public service pensions, based on the average earnings of a member over their career rather than their salary at, or near to, retirement.
2. Request people to retire later - with pension benefits normally paid at State Pension Age (earlier for members of the police, armed forces and fire fighters' schemes). Nobody will be made to work longer, but a fair adjustment will be made to their pension if they chose to retire earlier or later.
3. Introduces cost controls so that future unforeseen changes in the cost of pensions are shared by members and employers.
4. Introduces more commonality to the powers and processes across public service pension schemes
I found it particularly interesting to note that the Defamation Bill which reforms the law of defamation to include introducing a requirement that a statement must have caused serious harm for it to be defamatory in order to discourage trivial claims and creating new statutory defences of truth and honest opinion to replace the common law defences of justification and fair comment.
I am unsure as to whether the reforms will help the economy or whether reforms such as those outlined in the The Enterprise and Regulatory Reform Bill will merely add a further layer of complexity for employers to deal with. If you are an employer who has received a flexible working/sharing maternity leave application from a male employee and you are unsure as to how to deal with it please contact me me on 0113 350 4030 for a free initial 30 minute consultation.
For those of you interested in reading the Queens Speech in full, you may find this analysis useful: http://www.politics.co.uk/comment-analysis/2012/05/09/the-queen-s-speech-2012-in-full
Sunday 29 April 2012
Etiquettes of an Employment Tribunal
Very recently I was at the employment tribunal and very embarrassingly (for me) realised my client was not aware of the etiquettes of the tribunal. So I thought I would write a short blog post to help parties understand the rules of the tribunal (though please act with caution as they can differ from tribunal to tribunal):
1. When the tribunal panel enters and exits a room, stand up, and wait for permission to sit down or leave (unless informed otherwise at the outset of the hearing).
2.If you are a Claimant never leave the room without requesting an adjournment (witnesses can leave quietly for rest breaks).
3. When you are answering questions, try and keep an eye on the tribunal panel, if they are writing something down slow down to ensure they have made an accurate note of your answer.
4. When reading your witness statement out load (which over time we will see less of this) ensure that you stop, preferably at the end of the paragraph, whenever there is mention of pages to the bundle. Your advocate will usually request the tribunal panel to read the relevant pages. If you are representing yourself the tribunal judge is likely to ask you if you would like them to read the pages referred to.
5. Ensure you inform your advocate, or the tribunal panel (if you are representing yourself in person), to read all the pages which you believe will further your case. The tribunal panel does not read the bundle in advance of the hearing, and they will only read and (therefore refer to any subsequent judgement) pages which the parties have brought to their attention during the hearing.
6. Usually you do not, require permission from the tribunal judge to take off your jacket, however if you are representing in an unfamiliar tribunal, it will not hurt to ask for permission and may save you some embarrassment later.
That is all I can think of however if my fellow colleagues, can think of anything else, please do leave a comment.
1. When the tribunal panel enters and exits a room, stand up, and wait for permission to sit down or leave (unless informed otherwise at the outset of the hearing).
2.If you are a Claimant never leave the room without requesting an adjournment (witnesses can leave quietly for rest breaks).
3. When you are answering questions, try and keep an eye on the tribunal panel, if they are writing something down slow down to ensure they have made an accurate note of your answer.
4. When reading your witness statement out load (which over time we will see less of this) ensure that you stop, preferably at the end of the paragraph, whenever there is mention of pages to the bundle. Your advocate will usually request the tribunal panel to read the relevant pages. If you are representing yourself the tribunal judge is likely to ask you if you would like them to read the pages referred to.
5. Ensure you inform your advocate, or the tribunal panel (if you are representing yourself in person), to read all the pages which you believe will further your case. The tribunal panel does not read the bundle in advance of the hearing, and they will only read and (therefore refer to any subsequent judgement) pages which the parties have brought to their attention during the hearing.
6. Usually you do not, require permission from the tribunal judge to take off your jacket, however if you are representing in an unfamiliar tribunal, it will not hurt to ask for permission and may save you some embarrassment later.
That is all I can think of however if my fellow colleagues, can think of anything else, please do leave a comment.
Friday 27 April 2012
What challenges does social media bring to management?
Employers are increasingly facing challenges in respect to dealing with employee’s and social media such as Facebook, Twitter and YouTube: especially as more and more industries trial the implementation of social media into their marketing plans.
As a solicitor, only yesterday did I attend a course on how social media works, how it should be used and implemented into my marketing strategy. So no doubt given the financial climate, many of us will be using it as a more cost effective way to connect with likeminded people and professionals we would like to do business with (on a reciprocal basis if possible).
So what do employers have in place to ensure that social media can be used safely in their business? There has been some case law and ACAS guidance which helps and assist companies when dealing with disciplinary issues arising from what can only be termed as social media misconduct.
There are two kinds of usage of social media which are prawn to result in disciplinary action, this is:
1. Posting videos, comments, photo’s revealing some form of work related misbehaviour on a social media forum e.g. ringing in sick and them shortly posting ‘off to Alton Towers’.
2. Expressing views which employers do not wish to be connected with their organisation.
Helpfully ACAS produced guidance in January 2011, in their ‘Social Media in the workplace’ http://www.acas.org.uk/index.aspx?articleid=3375. The 2010 my Job Group Survey found that:
- Over half of employees said that had never criticised or talked negatively about their workplace.
- While a third said they had, 19% of this group complained about their boss or owner of the company, 13% had complained/criticised their peers and 12% had criticised their direct manager.
Some commentators have suggested that the way to avoid disciplinary situations is to ensure that employees have a forum where they can let off steam, perhaps this suggestion implemented correctly could be the answer.
Case study’s from the media:
There have been a couple of cases in the media (perhaps ironically) which have been related to disciplinary action having arisen as a consequence of some form of social media. There was the first case of Joe Gordon in 2005 (has social media really been around that long?) who was dismissed as a result of a personal blog which occasionally referenced his work at Waterstone's. These references included details of his shift pattern and it referred to his boss as “evil”. Perhaps, partly due to the media coverage his dismissal was overturned on appeal.
Catherine Sanderson was another one people may recall. She was from memory the lawyer working for a British firm in France, again in a non-work related blog she occasionally referred to her firm and as a consequence was dismissed. She took her employers to a tribunal in France and received an award for wrongful dismissal.
Here in the UK we have recently had sportsmen being disciplined, an example that springs to mind is former Liverpool footballer, Ryan Babel, who was fined by the English Football Association for casting aspersions of the integrity of the referee, Howard Webb, by posting doctored photographs of him in a Manchester United shirt on twitter.
There have also been cricketers and Rugby players who have been fined due to making inappropriate comments on a social media platform.
What should a business have in place?
It will not come as a surprise to any of you, but the most important things would be a social media policy which is well defined and reasonable. This will ensure both management and staff fully appreciate the implications of comments being made on a social media forum.
Employers should ensure that their social media misconduct is not dissimilar to offline conduct.
Ethical considerations:
When considering whether an employee should be disciplined for misconduct from social media which centres around harming the reputation of the company, managers/owners should always consider the scale of the harm i.e. how harmful is it if the comment is read by a relatively small group of people.
How should a company formulate a policy?
If possible (and smaller companies may find this difficult) engage employees in the process of formulating a policy. Ensure that the policy is not too wide (for example making any attempt to set out that employees are responsible for comments made by their friends would be seen as being too wide and potentially unenforceable).
The following should be covered in your social media policy:
1. Network Security.
2. Acceptable behaviour and use for:
- Internet and emails.
- Smart phones.
- Social network sites and
- Blogging and tweeting.
3. Data Protection and monitoring.
4. Business objectives and
5. Disciplinary process.
Is there anything else I should be aware of?
There has been a recent tendency for employers during the recruitment and/or disciplinary investigations to use evidence from the employees Facebook or Twitter account and this can cause all sorts of issues not least the Human Rights Act 1998 (which is very quickly brought into the equation).
If you are an employer, owner or manager you should ensure that you are familiar with the Regulations of Investigatory Powers Act 2000 as material monitored without consent could lead to a claim against you. However, monitoring is not unlawful in the following circumstances:
1. Where the employer reasonably believes he has consent from the employee and
2. Where the employer is monitoring to prevent a crime, protect their business or to comply with financial regulations.
I hope you have found the above information useful and please remember if you are in the process of drafting a social media policy or disciplining an employee for social media misconduct please contact me for case specific advice ideally before any action is taken on 0113 350 4030 or alternatively samira.ali@scesolicitors.co.uk.
As a solicitor, only yesterday did I attend a course on how social media works, how it should be used and implemented into my marketing strategy. So no doubt given the financial climate, many of us will be using it as a more cost effective way to connect with likeminded people and professionals we would like to do business with (on a reciprocal basis if possible).
So what do employers have in place to ensure that social media can be used safely in their business? There has been some case law and ACAS guidance which helps and assist companies when dealing with disciplinary issues arising from what can only be termed as social media misconduct.
There are two kinds of usage of social media which are prawn to result in disciplinary action, this is:
1. Posting videos, comments, photo’s revealing some form of work related misbehaviour on a social media forum e.g. ringing in sick and them shortly posting ‘off to Alton Towers’.
2. Expressing views which employers do not wish to be connected with their organisation.
Helpfully ACAS produced guidance in January 2011, in their ‘Social Media in the workplace’ http://www.acas.org.uk/index.aspx?articleid=3375. The 2010 my Job Group Survey found that:
- Over half of employees said that had never criticised or talked negatively about their workplace.
- While a third said they had, 19% of this group complained about their boss or owner of the company, 13% had complained/criticised their peers and 12% had criticised their direct manager.
Some commentators have suggested that the way to avoid disciplinary situations is to ensure that employees have a forum where they can let off steam, perhaps this suggestion implemented correctly could be the answer.
Case study’s from the media:
There have been a couple of cases in the media (perhaps ironically) which have been related to disciplinary action having arisen as a consequence of some form of social media. There was the first case of Joe Gordon in 2005 (has social media really been around that long?) who was dismissed as a result of a personal blog which occasionally referenced his work at Waterstone's. These references included details of his shift pattern and it referred to his boss as “evil”. Perhaps, partly due to the media coverage his dismissal was overturned on appeal.
Catherine Sanderson was another one people may recall. She was from memory the lawyer working for a British firm in France, again in a non-work related blog she occasionally referred to her firm and as a consequence was dismissed. She took her employers to a tribunal in France and received an award for wrongful dismissal.
Here in the UK we have recently had sportsmen being disciplined, an example that springs to mind is former Liverpool footballer, Ryan Babel, who was fined by the English Football Association for casting aspersions of the integrity of the referee, Howard Webb, by posting doctored photographs of him in a Manchester United shirt on twitter.
There have also been cricketers and Rugby players who have been fined due to making inappropriate comments on a social media platform.
What should a business have in place?
It will not come as a surprise to any of you, but the most important things would be a social media policy which is well defined and reasonable. This will ensure both management and staff fully appreciate the implications of comments being made on a social media forum.
Employers should ensure that their social media misconduct is not dissimilar to offline conduct.
Ethical considerations:
When considering whether an employee should be disciplined for misconduct from social media which centres around harming the reputation of the company, managers/owners should always consider the scale of the harm i.e. how harmful is it if the comment is read by a relatively small group of people.
How should a company formulate a policy?
If possible (and smaller companies may find this difficult) engage employees in the process of formulating a policy. Ensure that the policy is not too wide (for example making any attempt to set out that employees are responsible for comments made by their friends would be seen as being too wide and potentially unenforceable).
The following should be covered in your social media policy:
1. Network Security.
2. Acceptable behaviour and use for:
- Internet and emails.
- Smart phones.
- Social network sites and
- Blogging and tweeting.
3. Data Protection and monitoring.
4. Business objectives and
5. Disciplinary process.
Is there anything else I should be aware of?
There has been a recent tendency for employers during the recruitment and/or disciplinary investigations to use evidence from the employees Facebook or Twitter account and this can cause all sorts of issues not least the Human Rights Act 1998 (which is very quickly brought into the equation).
If you are an employer, owner or manager you should ensure that you are familiar with the Regulations of Investigatory Powers Act 2000 as material monitored without consent could lead to a claim against you. However, monitoring is not unlawful in the following circumstances:
1. Where the employer reasonably believes he has consent from the employee and
2. Where the employer is monitoring to prevent a crime, protect their business or to comply with financial regulations.
I hope you have found the above information useful and please remember if you are in the process of drafting a social media policy or disciplining an employee for social media misconduct please contact me for case specific advice ideally before any action is taken on 0113 350 4030 or alternatively samira.ali@scesolicitors.co.uk.
Wednesday 18 April 2012
Employment law changes from 6 April 2012
From 6 April 2012 the following employment law changes took effect:
1. The continuous service requirement for employees starting jobs on or after 6 April 2012 will increase to two years for unfair dismissal claims. Employees who started before 6 April 2012 will remain under the old regime, a years service. We are unlikely to see the true effect of this rule change until 6 April 2013.
2. Judges will be allowed to sit alone on unfair dismissal claims, where there are no complaints of discrimination or any other detriment. It is likely that all single issue, unfair dismissal claims will be listed to be heard by a single judge. Parties can however, make an application, for members to be present. Unsurprisingly, judges can decide they need their lay members (the trade union and HR representative) to make a decision on the issues to be decided on the day of the hearing (which may lead to postponements).
Unfortunately there is no further guidance in respect to the types of cases, judges will be allowed to sit alone, this will be decided on a case by case basis.
3. Witness statements shall be taken as read and ‘shall be the witnesses evidence in chief’. This is going to particularly impact on employees and employers who chose to draft their own witness statement (no doubt to save cost). Parties should take great care in drafting precise witness statements, if crucial details/information are missing, the witness will have to rely on the opposing advocate or the tribunal to ask them the appropriate question to bring the evidence to the tribunals attention.
Tribunals will be empowered to make a costs order if attendance of certain witnesses was not ‘necessary’ in deciding the issues before the tribunal and was seen as being a ‘time wasting’ exercise.
4. The tribunal will be granted the power to request parties to pay witness expense.
5. Deposit orders have been increased from £500 to £1,000.
The consultations for the introduction of fees for bringing claims and pre-tribunal conciliation continue – and I will ensure you are all kept updated.
1. The continuous service requirement for employees starting jobs on or after 6 April 2012 will increase to two years for unfair dismissal claims. Employees who started before 6 April 2012 will remain under the old regime, a years service. We are unlikely to see the true effect of this rule change until 6 April 2013.
2. Judges will be allowed to sit alone on unfair dismissal claims, where there are no complaints of discrimination or any other detriment. It is likely that all single issue, unfair dismissal claims will be listed to be heard by a single judge. Parties can however, make an application, for members to be present. Unsurprisingly, judges can decide they need their lay members (the trade union and HR representative) to make a decision on the issues to be decided on the day of the hearing (which may lead to postponements).
Unfortunately there is no further guidance in respect to the types of cases, judges will be allowed to sit alone, this will be decided on a case by case basis.
3. Witness statements shall be taken as read and ‘shall be the witnesses evidence in chief’. This is going to particularly impact on employees and employers who chose to draft their own witness statement (no doubt to save cost). Parties should take great care in drafting precise witness statements, if crucial details/information are missing, the witness will have to rely on the opposing advocate or the tribunal to ask them the appropriate question to bring the evidence to the tribunals attention.
Tribunals will be empowered to make a costs order if attendance of certain witnesses was not ‘necessary’ in deciding the issues before the tribunal and was seen as being a ‘time wasting’ exercise.
4. The tribunal will be granted the power to request parties to pay witness expense.
5. Deposit orders have been increased from £500 to £1,000.
The consultations for the introduction of fees for bringing claims and pre-tribunal conciliation continue – and I will ensure you are all kept updated.
Saturday 7 April 2012
Discrimination on the grounds of pregnancy/maternity leave
This week while preparing to defend a claim for discrimination on the grounds of pregnancy/maternity I re-read the interesting case of Johal –v- Commissioner for Equality and HR UKEAT/0541/09/DA where the EAT held (after examining a number of important discrimination cases) that the Claimant had not been discriminated or treated less favourably on the grounds that she was on maternity leave when her employer failed to inform her of an internal role, the real reason was that there had been an administrative error.
The EAT set out that the question a tribunal has to decide is “Why did the employer dismiss her?”. The case was decided in respect to the Sex Discrimination Act 1975 however the principles are likely to be applicable to the Equality Act 2010.
So business owners who have genuinely overlooked an employee because they have been on maternity leave may have a defence. If you are currently in a similar situation and need some advice and guidance please contact me on 0113 350 4030 or samira.ali@scesolicitors.co.uk.
The EAT set out that the question a tribunal has to decide is “Why did the employer dismiss her?”. The case was decided in respect to the Sex Discrimination Act 1975 however the principles are likely to be applicable to the Equality Act 2010.
So business owners who have genuinely overlooked an employee because they have been on maternity leave may have a defence. If you are currently in a similar situation and need some advice and guidance please contact me on 0113 350 4030 or samira.ali@scesolicitors.co.uk.
Wednesday 28 March 2012
Age Discrimination and ‘proportionate means of achieving a legitimate aim’
Finally the Court of Appeal decision of Woodcock –v- Cumbria Care Trust [2012] EWCA Civ 330
The facts:
Some of my readers will recall that this was an appeal by Mr Woodcock in respect to his age discrimination claim. The Trust dismissed Mr Woodcock on the grounds of redundancy when he was just short of his 49th birthday giving him 12 months notice without a consultation period. The Trust’s reasons for not following the correct redundancy procedure was that had they done so Mr Woodcock would have reached 50 when he was given the notice, this would have entitled him to an early retirement with an enhanced pension. The timing of the notice deprived him of the benefit.
The benefit Mr Woodcock would have attained could only have been achieved at a substantial additional cost to the Trust; and the Trust’s aim in its timing of the notice was to achieve a dismissal on redundancy grounds that would save such additional cost.
The issue
The issue was whether the Trust’s discriminatory treatment of Mr Woodcock was ‘a proportionate means of achieving legitimate aim’. If the answer was in the positive then Mr Woodcock would not have suffered any age discrimination. Both the Employment Tribunal (ET) and Employment Appeals Tribunal (EAT) held that it was and Mr Woodcock appealed.
Mr Woodcock also appealed the finding of unfair dismissal on the basis that he was not provided with a fair and proper consultation.
This case related to direct age discrimination, unlike other forms of discrimination ‘direct age discrimination’ can be objectively justified.
The Court of Appeals Finding:
From the facts, the Court of Appeal found that save for a 'chapter of accidents', the initial consultation meeting would have been held long before Mr Woodcock's 49th birthday so that he would ordinarily have been given notice long before any prospect of the enhanced pension arose. This was found to have satisfied the 'costs plus' test that had been established in
Cross v British Airways [2005] IRLR423. As such, the treatment was justified therefore the discrimination claim (along with an unfair dismissal claim) was dismissed.
In light of this decision it seems that future cases raising issues of costs will turn on substantive questions or proportionality rather than whether the employers behaviour was properly to be characterised as cost or costs plus.
This case will prove detrimental for police officers and other public workers, facing compulsory retirement.
The case looked at some interesting issues so if you are going through a similar process make you get legal advice, contact me for a free consultation on 0113 350 4030.
The facts:
Some of my readers will recall that this was an appeal by Mr Woodcock in respect to his age discrimination claim. The Trust dismissed Mr Woodcock on the grounds of redundancy when he was just short of his 49th birthday giving him 12 months notice without a consultation period. The Trust’s reasons for not following the correct redundancy procedure was that had they done so Mr Woodcock would have reached 50 when he was given the notice, this would have entitled him to an early retirement with an enhanced pension. The timing of the notice deprived him of the benefit.
The benefit Mr Woodcock would have attained could only have been achieved at a substantial additional cost to the Trust; and the Trust’s aim in its timing of the notice was to achieve a dismissal on redundancy grounds that would save such additional cost.
The issue
The issue was whether the Trust’s discriminatory treatment of Mr Woodcock was ‘a proportionate means of achieving legitimate aim’. If the answer was in the positive then Mr Woodcock would not have suffered any age discrimination. Both the Employment Tribunal (ET) and Employment Appeals Tribunal (EAT) held that it was and Mr Woodcock appealed.
Mr Woodcock also appealed the finding of unfair dismissal on the basis that he was not provided with a fair and proper consultation.
This case related to direct age discrimination, unlike other forms of discrimination ‘direct age discrimination’ can be objectively justified.
The Court of Appeals Finding:
From the facts, the Court of Appeal found that save for a 'chapter of accidents', the initial consultation meeting would have been held long before Mr Woodcock's 49th birthday so that he would ordinarily have been given notice long before any prospect of the enhanced pension arose. This was found to have satisfied the 'costs plus' test that had been established in
Cross v British Airways [2005] IRLR423. As such, the treatment was justified therefore the discrimination claim (along with an unfair dismissal claim) was dismissed.
In light of this decision it seems that future cases raising issues of costs will turn on substantive questions or proportionality rather than whether the employers behaviour was properly to be characterised as cost or costs plus.
This case will prove detrimental for police officers and other public workers, facing compulsory retirement.
The case looked at some interesting issues so if you are going through a similar process make you get legal advice, contact me for a free consultation on 0113 350 4030.
Tuesday 20 March 2012
Are interns workers?
It seems that businesses should be very careful in the type of work that they delegate to interns as a recent tribunal (Ms Keri Hudson –v- TPG Web publishing Ltd (TPG) [2011]) held that due to the nature of the work carried out by the claimant she was a ‘worker’ therefore entitled to receive the national minimum wage.
The tribunal in this case heard how the claimant undertook editorial responsibilities without payment.
In the absence of an employment contact the tribunal were satisfied that there was an implied contractual duty on the basis the company had previously discussed remuneration with the claimant and the duties she carried out were of value to the company.
The moral of the case is take legal advice when considering hiring interns.
The tribunal in this case heard how the claimant undertook editorial responsibilities without payment.
In the absence of an employment contact the tribunal were satisfied that there was an implied contractual duty on the basis the company had previously discussed remuneration with the claimant and the duties she carried out were of value to the company.
The moral of the case is take legal advice when considering hiring interns.
Sunday 11 March 2012
Statutory Maternity Pay (SMP) - what are the rules?
I think everyone gets confused about maternity and entitlements. So I thought a quick guide to help everyone understand their rights would be useful. Whether you are an employer or employee if after reading this guidance note you are still confused then please do make contact and I will try and place you on the correct path.
Who is entitled to SMP?
Employees qualify for SMP if they satisfy the:
(1) The continuous employment rule:
- This means an employee must be employed by the same employer continuously for at least 26 weeks into the 15th week before the week the baby is due (the qualifying week).
- Exceptions can be made if the baby is born premature.
When can a break amount to being continuous employment?
When an employee:
- Is absent (for periods of 26 consecutive weeks or less) because of sickness, injury, pregnancy or childbirth;
- Has taken a period of statutory maternity leave, adoption leave, paternity leave or parental leave (in which case, that period counts towards the period of continuous employment);
- Did not take maternity leave but were not working because they had a break to give birth; they worked for the employer before and after the break, and the break is not more than 26 weeks;
- Has temporarily ceased because the employer was unable to offer the employee any work;
- Is away in circumstances in which, by arrangement or custom, is regarded as continuing for some purposes (for example, teachers employed on term-by-term contracts with the same or associated employers);
- Was unfairly dismissed and, after action under the Employment Rights Act 1996, were reinstated (or would have been, but for their pregnancy) and have refunded any redundancy or equivalent payment received from the employer upon dismissal;
- Is away because of a stoppage of work during an industrial dispute. A strike does not break continuity of employment, but the weeks or part weeks of a strike do not count towards the 26 weeks of employment.
Agency workers:
- Workers employed by an agency, in each of the 26 weeks into the qualifying week, satisfy the continuous employment rule providing they did some work during any week.
- There may be complete weeks when the employee did no work for the agency. This does not necessarily mean that the employee’s continuity of employment is broken.
What happens if someone’s employment stops work during or after the qualifying week?
If an employee’s employment ends during or after the qualifying week they can still qualify for SMP from your former employer.
Change of employer
If an employee changes jobs during her pregnancy, she is unlikely to be able to meet the continuous employment rule unless:
- TUPE applies;
- An Act of Parliament, one corporate body takes over from another as their employer;
- There is a change in the partners, personal representative or trustees who employ them;
- They move from one employer to another at a time when the two employers are associated employers, that is if one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control;
- The employee is a teacher in a school maintained by a local education authority, and the employee moves to another school maintained by the same authority.
(2) The Earnings Rule
To qualify for SMP the employee’s average gross weekly earning must be at least£97 per week for the tax year 2010/2011 and £102 a week for the tax year 2011/2012.
As a general rule, the employee’s earnings will be averaged over a period of at least 8 weeks up to and including the last pay day before the end of the qualifying week. This period is called the 'relevant period' (but this may vary depending on how the employee’s salary is paid).
What if the employee’s employment contract ends?
If an employee satisfies both the continuous employment rule and earning rule the employer must pay SMP even if their contract ends at any time after the start of the qualifying period the employer must pay SMP.
How much SMP do employee’s get?
- The first six weeks are paid at 90% of the employee’s average gross weekly earnings with no upper limit and
- For the remaining 33 weeks at the lower of either the standard rate of £128.73, or 90% of your average gross weekly earnings.
Is there anything else that employees must do to qualify for SMP?
YES they must:
- Tell their employer when they want their SMP to start and
- Provide medical evidence of the date the baby is due
Thursday 8 March 2012
Can employers subjectively choose who they like for newly created roles during a redundancy process?
The
recent decision by the EAT in Samsung Electronics v Monte D'Cruz [2012]
is authorisation that employers can ‘appoint the best person for the job’ and
this could mean that no one from the selection pool is chosen for the role.
In
this case Samsung re-organised their print division. The Claimant was one of
three Heads of Department whose role was being merged into one. He
unsuccessfully applied for the merged post. He then unsuccessful applied for a
more junior role which came about due to the restructure. An external candidate
was eventually appointed.
This
decision may mean that in certain re-organisation situations if external
candidates are the best people to perform the role then the dismissal may not
be unfair.
This
post is not legal advice and should not be used as such if you are a commercial
business and are in a similar predicament please ensure that you contact me on
0113 350 4030 or another legally qualified professional before you make any
decisions. I look forward to hearing from you.
Saturday 3 March 2012
Birmingham NEC Dental Exhibition
Tuesday 28 February 2012
Can 'cheapness' be a selection criterion for redundancy?
The answer may well be yes as the recent EAT’s recent decision in HM Land Registry Appellant –v- Mrs S M Benson and Other Respondents UKEAT/0197/11/RN (handed down on 10 February 2012) in respect to age discrimination.
So you all understand indirect discrimination the legal definition is where the employer applies a Provision, Criterion or Practice (PCP) which is neutral on the face of it, but disadvantages people with a protected characteristic (age,disability, gender reassignment, marriage & civil partnership, pregnancy & maternity, race, religion or belief, sex and sexual orientation), unless the employer can justify the PCP as a proportionate means to achieving a legitimate aim.
Dealing with Indirect Age Discrimination
The tribunal, at first instance, held for the Claimants. However the EAT reversed the position primarily on the basis that had the criterion not been used then than the redundancy bill they would be footing would be 150% of the budget allocated by the HM Land Registry (the Respondent). Therefore the PCP was a proportionate means to achieving a legitimate aim.
Further they considered the fact that the Respondent needed to make a balanced judgement in respect to the experience of the work force. This makes sense to me - after all no employer can effectively function without the right level of experienced employees.
What employers must remember is that this is a case were the ‘cost’ of making employees redundant was only one of the criterions used for selection. The principle remains that costs alone may amount to indirect age discrimination however in the majority of the cases costs will only be one of the factors considered.
The reason why I personally think it is a strange case is that it was brought because employee’s were not selected for redundancy, I am fully aware that some of those in public office (notably police officers) bring actions to remain in office. This decision may have some effect on those actions; it will all depend on whether the tribunals believe whether the force used costs plus some other factor to retire those with 30 years’ service. The likely argument that the force will use is that due to budget constraints they needed to enforce retirement for officers with over 30 years’ service. However the tribunals make decisions on a case by case basis therefore officers/police federation representatives will need to be very careful how cases are presented.
For business owners with an allocated budget for the redundancies ensure that you do not select any employee using costs alone as the criterion and always ensure that you take legal advice before any decision of this nature is made.
Dealing with indirect sex discrimination
One of the Claimant’s in the above mentioned case mentioned complained of indirect sex discrimination, this was on the basis that she was not included in the selection process because she was on a career break straight after maternity and not due to return until 2013.
She was initially informed about the redundancy schemes however she was subsequently excluded because she would be returning after 31 March 2010 (a selection criterion which was decided by the Respondent at a later date and one which she was not notified of).
The EAT did not uphold the Respondents appeal in respect to the indirect sex discrimination PCP being a proportionate means to achieving a legitimate aim. They failed to inform the Claimant that she was excluded from the redundancy selection on the grounds that she did not return from her career break until 2013. This ultimately led to the Claimant being robbed of the opportunity to give the Respondent a notice to return to work prior to 31 March 2010.
So those of you with plans for redundancy plans should ensure that careful consideration is given to employees on maternity leave/career breaks straight after maternity leave.
Again as a lawyer having worked with a number of institutions (such as the police) this case may be the reverse of what the claimant may want to achieve – i.e. the officer may want to remain in service as opposed to be made redundant with enhanced pension benefits.
If you are going through a similar procedure and would like a 30 minute free telephone consultation please contact me on 07841011980 or info@scelegal.co.uk to book an appointment.
The HM Land Registry had a budget of £12 million to reduce their headcount so they offered employees a voluntary redundancy/early retirement scheme, with enhanced benefits. One of the selection criterion used was, what the tribunals referred to as ‘cheapness’ i.e. selecting employees whose entitlements under the scheme would be the lowest, to allow them to make redundant as many people as possible within the budget identified. This meant that a certain category of people were not selected for redundancy – these consisted primarily of the 50+.
Unusually (in my experience anyway) the claim was brought by 6 employees (the Claimants) who were not selected for redundancy, 5 of them complained of indirect age discrimination and one of them complained about sex discrimination.
Unusually (in my experience anyway) the claim was brought by 6 employees (the Claimants) who were not selected for redundancy, 5 of them complained of indirect age discrimination and one of them complained about sex discrimination.
So you all understand indirect discrimination the legal definition is where the employer applies a Provision, Criterion or Practice (PCP) which is neutral on the face of it, but disadvantages people with a protected characteristic (age,disability, gender reassignment, marriage & civil partnership, pregnancy & maternity, race, religion or belief, sex and sexual orientation), unless the employer can justify the PCP as a proportionate means to achieving a legitimate aim.
Dealing with Indirect Age Discrimination
The tribunal, at first instance, held for the Claimants. However the EAT reversed the position primarily on the basis that had the criterion not been used then than the redundancy bill they would be footing would be 150% of the budget allocated by the HM Land Registry (the Respondent). Therefore the PCP was a proportionate means to achieving a legitimate aim.
Further they considered the fact that the Respondent needed to make a balanced judgement in respect to the experience of the work force. This makes sense to me - after all no employer can effectively function without the right level of experienced employees.
What employers must remember is that this is a case were the ‘cost’ of making employees redundant was only one of the criterions used for selection. The principle remains that costs alone may amount to indirect age discrimination however in the majority of the cases costs will only be one of the factors considered.
The reason why I personally think it is a strange case is that it was brought because employee’s were not selected for redundancy, I am fully aware that some of those in public office (notably police officers) bring actions to remain in office. This decision may have some effect on those actions; it will all depend on whether the tribunals believe whether the force used costs plus some other factor to retire those with 30 years’ service. The likely argument that the force will use is that due to budget constraints they needed to enforce retirement for officers with over 30 years’ service. However the tribunals make decisions on a case by case basis therefore officers/police federation representatives will need to be very careful how cases are presented.
For business owners with an allocated budget for the redundancies ensure that you do not select any employee using costs alone as the criterion and always ensure that you take legal advice before any decision of this nature is made.
Dealing with indirect sex discrimination
One of the Claimant’s in the above mentioned case mentioned complained of indirect sex discrimination, this was on the basis that she was not included in the selection process because she was on a career break straight after maternity and not due to return until 2013.
She was initially informed about the redundancy schemes however she was subsequently excluded because she would be returning after 31 March 2010 (a selection criterion which was decided by the Respondent at a later date and one which she was not notified of).
The EAT did not uphold the Respondents appeal in respect to the indirect sex discrimination PCP being a proportionate means to achieving a legitimate aim. They failed to inform the Claimant that she was excluded from the redundancy selection on the grounds that she did not return from her career break until 2013. This ultimately led to the Claimant being robbed of the opportunity to give the Respondent a notice to return to work prior to 31 March 2010.
So those of you with plans for redundancy plans should ensure that careful consideration is given to employees on maternity leave/career breaks straight after maternity leave.
Again as a lawyer having worked with a number of institutions (such as the police) this case may be the reverse of what the claimant may want to achieve – i.e. the officer may want to remain in service as opposed to be made redundant with enhanced pension benefits.
If you are going through a similar procedure and would like a 30 minute free telephone consultation please contact me on 07841011980 or info@scelegal.co.uk to book an appointment.
Monday 20 February 2012
Can confidentiality and post termination restrictions be enforced through the courts?
Some employers are sceptical about inserting confidentiality, non-solicitation and post termination restrictions into an employment contract because they may be seen as amounting to a restriction on trade. While this may be true carefully worded clauses which are reasonable can protect your ‘trade secrets’ and ‘highly confidential data’ from breach by senior employees or employees placed in a position of trust.
The recent case of QBE Management Services (UK) Ltd v Dymoke & Others [2012] EWHC 80 (QB) highlights this point. In this case three senior managers (‘the Defendants’) resigned to join a competing business, shortly after, 8 junior employees resigned to join them. All the employment contracts contained confidentiality, non-solicitation and post termination restrictions. QBE in the first instance obtained interim injunction enforcing garden leave obligations and post termination restrictive covenants against the Defendants together with orders of early disclosure.
The disclosure revealed that the Defendants had:
- been instrumental in setting the competing business up;
- solicited QBE’s clients & employees prior to their resignation;
- abused confidential information and
- concealed their activities from their employers.
Where a person has obtained a ‘head start’ as a result of unlawful acts, the court has power to grant an injunction which restrains the wrongdoer, so to deprive them of the fruits of their unlawful act. This is known as ‘springboard relief’. QBE successfully obtained the relief of a ‘springboard injunction’ restraining the Defendant’s from launching their company pending a speedy trial.
The disclosure in this case was key to this case as it revealed that the Defendants were aware that their venture could only work if they had qualified and suitable employees and further this would be crucial to gaining credibility and the right financial backers. They targeted key staff and attempted to disguise this through the use of head hunters during the recruitment process.
The Defendants also used confidential information to contact the brokers to entice them to provide the new company with future work.
The judge regarded this as an overwhelming case and one where the springboard relief was clearly available, and available for all breaches not just for the breach of confidence. The judge concluded that the breaches had allowed the Defendants to get up and running before the crucial renewal window for some 70% of the marine insurance business in February 2012. Therefore alongside damages he ordered a further springboard injunction to prevent the Defendants launching their company until April 2012 – being 12 months after the date of the resignation of the Defendants.
This is a useful judgement for employers as it tightens the standards of good faith and loyalty expected of an employee.
What should you do as an employer?
Ensure all employees in key positions or those that are given access to sensitive business information and are involved in strategic business positions have reasonable confidentiality, non-solicitation and post restrictive termination clauses in their employment contracts to protect your trade secrets and highly confidential information.
If you have any questions in respect to any of the above or in breach of contract claims in general please contact me on 0113 350 4030 or samira.ali@scelegal.co.uk for a no obligations 30 minute consultation.
The recent case of QBE Management Services (UK) Ltd v Dymoke & Others [2012] EWHC 80 (QB) highlights this point. In this case three senior managers (‘the Defendants’) resigned to join a competing business, shortly after, 8 junior employees resigned to join them. All the employment contracts contained confidentiality, non-solicitation and post termination restrictions. QBE in the first instance obtained interim injunction enforcing garden leave obligations and post termination restrictive covenants against the Defendants together with orders of early disclosure.
The disclosure revealed that the Defendants had:
- been instrumental in setting the competing business up;
- solicited QBE’s clients & employees prior to their resignation;
- abused confidential information and
- concealed their activities from their employers.
Where a person has obtained a ‘head start’ as a result of unlawful acts, the court has power to grant an injunction which restrains the wrongdoer, so to deprive them of the fruits of their unlawful act. This is known as ‘springboard relief’. QBE successfully obtained the relief of a ‘springboard injunction’ restraining the Defendant’s from launching their company pending a speedy trial.
The disclosure in this case was key to this case as it revealed that the Defendants were aware that their venture could only work if they had qualified and suitable employees and further this would be crucial to gaining credibility and the right financial backers. They targeted key staff and attempted to disguise this through the use of head hunters during the recruitment process.
The Defendants also used confidential information to contact the brokers to entice them to provide the new company with future work.
The judge regarded this as an overwhelming case and one where the springboard relief was clearly available, and available for all breaches not just for the breach of confidence. The judge concluded that the breaches had allowed the Defendants to get up and running before the crucial renewal window for some 70% of the marine insurance business in February 2012. Therefore alongside damages he ordered a further springboard injunction to prevent the Defendants launching their company until April 2012 – being 12 months after the date of the resignation of the Defendants.
This is a useful judgement for employers as it tightens the standards of good faith and loyalty expected of an employee.
What should you do as an employer?
Ensure all employees in key positions or those that are given access to sensitive business information and are involved in strategic business positions have reasonable confidentiality, non-solicitation and post restrictive termination clauses in their employment contracts to protect your trade secrets and highly confidential information.
If you have any questions in respect to any of the above or in breach of contract claims in general please contact me on 0113 350 4030 or samira.ali@scelegal.co.uk for a no obligations 30 minute consultation.
Tuesday 14 February 2012
Update on the Employment Law Reforms
The draft Unfair Dismissal of Reasons for Dismisal (Variation of Qualifying Period) Order 2012 (www.legislation.gov.uk/uksi/1999/1436/contents/made) have been published and set out that employees employed on or after
6th April 2012, the qualifying period for unfair dismissal (and requests a
statement of reasons for dismissal) increases to two years.
Employees whose period of continuous employment began on or before 5th April 2012 will still be subject to the one year qualifying period.
Employees whose period of continuous employment began on or before 5th April 2012 will still be subject to the one year qualifying period.
Saturday 11 February 2012
Quote of the week
In the words
of Walt Disney; “You can
dream, create, design and build the most wonderful place in the world, but it
requires people to make the dream a reality”.
This quote reminds me that no matter how old you are, you can always be a Disney fan!
What quote inspires you? I would love to hear from readers and followers!
I hope everyone has a great evening!
Sunday 5 February 2012
How to deal with employees and adverse weather conditions
I think the majority of us would agree that we love the snow and it is great to go out and build a snowman or go sledging (I was out sledging at Temple Newsam today with my friends 21 month year old). However problems arise when employees come into work late or cannot physically get into work due to disruptions with transport, school closures and severe weather warnings. This situation gives rise to the following questions:
1. What are the rights of employees and
2. How can employers ensure that they apply a fair policy given the circumstances of an individual and taking into account their business needs.
Here’s a guide to help you all get it right.
What rights do employees have if they cannot get into work?
If employees cannot genuinely get into work due to the snow (our current adverse weather condition) then employers should not try to convince them to ignore severe weather warnings or ask them to walk to work (you may all laugh but a friend of mine was once told that he should continue walking until he finds a bus that’s running and he ended up walking for 3 hours in the snow!)
Technically (unless an employment contract states otherwise) an employee is not entitled to be paid for work unless they fulfil their contractual obligations (i.e. turn up for work) however before an employer decides that any absence will be unpaid they should consider the options below.
What options are available for employers?
There are three options available for an employer:
1. Allowing the employee to work from another location: larger institutions will have several locations, perhaps look at whether the employee can work from a location nearer their home address or providing it is appropriate allow the employee to work from home.
If the employee has a blackberry and remote access through their PC or laptop then working from home should seriously be considered. Clearly a concern for employers will be whether the employee takes ‘working from home’ to mean building a snowman – this could be overcome by having a ‘Working from Home Policy’ and some level of contract during the course of the working day.
2. Flexible working or leave: Give employees the option to take annual leave (however employers should not impose this), make the time up or take the time as unpaid leave particularly if the reason for not being able to come into work is to take care of a dependant.
Employees with childcare responsibilities, older or disabled relatives are given the statutory right to take time off to deal with ‘unforeseen events’ (such as school closures) for dependants this does not however provide them with the right to take extended leave but only to take off a reasonable amount of time to allow employees to deal with unforeseen event. Employers should look at a combination of paid and unpaid leave (employers should be guided by the employee contract of employment/statement of particulars).
3. No pay for periods of lateness and/or absence: Employers should use this as the last resort and they should inform all employees that this is going to be the case (employers please ensure that you check all employment contracts to ensure that any deductions do not amount to being an unlawful deduction of wages, or it may give rise to constructive unfair dismissal claims).
What happens if an employer closes the office due to the adverse weather condition?
If this is the case then employees should be paid their full contractual pay as they could not fulfil their contractual obligations.
What if employees are abusing the policy put into place?
If employers think their employees are taking what may be termed as a ‘snowballing day’ then the matter should be investigated under the company disciplinary procedure and if proven this could be regarded as an unauthorised absence. However before any employer instigates disciplinary action please take legal advice to ensure that you do not open yourself up to a claim for unfair dismissal.
Practical considerations for employers:
- Ensure you implement any policy in respect to adverse weather conditions fairly and consistently, while taking into account the particular needs and circumstances of individual staff members.
- If it is reasonable and practical offer employees that are able to attend work overtime and/or holidays in lieu to ensure that your business needs are continually met.
- Recognise employees who have managed to attend work – beating the snow (this can be as inexpensive as a small gift voucher or perhaps an employee of the month award).
- If you do not have an ‘Adverse Weather’ or ‘Working from Home’ policy, get one in place either by amending current contracts and/or sickness absence policies or putting new policies in place.
- Always consider how your actions will affect the morale of your work force – after all a successful business is one with a happy workforce!
If anyone would like to contact me in relation to any of the above please feel free to do so on either 01133 504030 or 07841011980 or info@scelegal.co.uk. Enjoy the snow and I look forward to receiving any comments/questions.
1. What are the rights of employees and
2. How can employers ensure that they apply a fair policy given the circumstances of an individual and taking into account their business needs.
Here’s a guide to help you all get it right.
What rights do employees have if they cannot get into work?
If employees cannot genuinely get into work due to the snow (our current adverse weather condition) then employers should not try to convince them to ignore severe weather warnings or ask them to walk to work (you may all laugh but a friend of mine was once told that he should continue walking until he finds a bus that’s running and he ended up walking for 3 hours in the snow!)
Technically (unless an employment contract states otherwise) an employee is not entitled to be paid for work unless they fulfil their contractual obligations (i.e. turn up for work) however before an employer decides that any absence will be unpaid they should consider the options below.
What options are available for employers?
There are three options available for an employer:
1. Allowing the employee to work from another location: larger institutions will have several locations, perhaps look at whether the employee can work from a location nearer their home address or providing it is appropriate allow the employee to work from home.
If the employee has a blackberry and remote access through their PC or laptop then working from home should seriously be considered. Clearly a concern for employers will be whether the employee takes ‘working from home’ to mean building a snowman – this could be overcome by having a ‘Working from Home Policy’ and some level of contract during the course of the working day.
2. Flexible working or leave: Give employees the option to take annual leave (however employers should not impose this), make the time up or take the time as unpaid leave particularly if the reason for not being able to come into work is to take care of a dependant.
Employees with childcare responsibilities, older or disabled relatives are given the statutory right to take time off to deal with ‘unforeseen events’ (such as school closures) for dependants this does not however provide them with the right to take extended leave but only to take off a reasonable amount of time to allow employees to deal with unforeseen event. Employers should look at a combination of paid and unpaid leave (employers should be guided by the employee contract of employment/statement of particulars).
3. No pay for periods of lateness and/or absence: Employers should use this as the last resort and they should inform all employees that this is going to be the case (employers please ensure that you check all employment contracts to ensure that any deductions do not amount to being an unlawful deduction of wages, or it may give rise to constructive unfair dismissal claims).
What happens if an employer closes the office due to the adverse weather condition?
If this is the case then employees should be paid their full contractual pay as they could not fulfil their contractual obligations.
What if employees are abusing the policy put into place?
If employers think their employees are taking what may be termed as a ‘snowballing day’ then the matter should be investigated under the company disciplinary procedure and if proven this could be regarded as an unauthorised absence. However before any employer instigates disciplinary action please take legal advice to ensure that you do not open yourself up to a claim for unfair dismissal.
Practical considerations for employers:
- Ensure you implement any policy in respect to adverse weather conditions fairly and consistently, while taking into account the particular needs and circumstances of individual staff members.
- If it is reasonable and practical offer employees that are able to attend work overtime and/or holidays in lieu to ensure that your business needs are continually met.
- Recognise employees who have managed to attend work – beating the snow (this can be as inexpensive as a small gift voucher or perhaps an employee of the month award).
- If you do not have an ‘Adverse Weather’ or ‘Working from Home’ policy, get one in place either by amending current contracts and/or sickness absence policies or putting new policies in place.
- Always consider how your actions will affect the morale of your work force – after all a successful business is one with a happy workforce!
If anyone would like to contact me in relation to any of the above please feel free to do so on either 01133 504030 or 07841011980 or info@scelegal.co.uk. Enjoy the snow and I look forward to receiving any comments/questions.
Saturday 28 January 2012
Online Management Course
It has been
an extremely busy week and in between everything this week I was determined to
complete the Management Course 2, which I had purchased from Data Law (www.datalawonline.co.uk) a few weeks
ago.
Mr A R Mackay was very entertaining lecturer and gave live examples of managing a company, client relationships and most importantly employee relationships from his own career.
I would like to hear from others who have used online CPD courses to see how effective they have found them.
Now I do not
know about the rest of you but I am certainly sceptical about courses online
however I urgently needed to do this one as it was long overdue (long story, if
I was to go into it you may be here all day).
I was very
pleasantly surprised it was conveniently split into 6 parts which meant that you
did not have to go through the whole 6 hours in one go, but it also allowed you
to log each section that you had completed (I will let you know whether the
logging process worked in due course). Mr A R Mackay was very entertaining lecturer and gave live examples of managing a company, client relationships and most importantly employee relationships from his own career.
I have heard
many solicitors complain about the relevance of the management course but I
think that’s probably because it is usually imposed on them in the form of a
training day away from the office, then things during the day may go wrong and
they have to try and sort them out via telephone and the list is endless. Maybe
their opinion would have been different if they had taken the course online
which they could have then fit around their work commitments.
In my opinion
the course is extremely relevant for anyone that is any supervisory role; I
personally have seen ‘bad management’ particularly during periods of recession
when there is additional pressure on management to get results, increase
billing, efficiency and profitability in a firm. The course helps management
not to ‘bully’ their staff, deny them relevant training or failing to pay their
expenses which decreases moral. Instead moral should be increased by assessing both
the tasks needed to be undertaken by management/supervisors and the strengths
and weaknesses of their staff be assessed this ensures each individual is
happy, effective and progressing to achieve their long term goals. I would like to hear from others who have used online CPD courses to see how effective they have found them.
Friday 20 January 2012
The Pensions Act 2008
I know it's Friday and everyone is probably reaching out for their second or third glass of wine but I thought I would give you some food for thought in respect of the Pensions Act 2008.
The Pensions Act 2008, which is due to come into effect in October 2012, will for the first time place a legal duty on employers to enrol most employees into a pension scheme and contribute towards their retirement.
Employer must auto-enrol all employees into a Qualifying Workplace Pension Scheme (QWPS)
Employers can take steps now to prepare for 2012’s pension reforms by:
The Pensions Act 2008, which is due to come into effect in October 2012, will for the first time place a legal duty on employers to enrol most employees into a pension scheme and contribute towards their retirement.
Employer must auto-enrol all employees into a Qualifying Workplace Pension Scheme (QWPS)
- Over 22 years but below state pension age
- Earning £7475 or more in 2011/12
- Within 3 months of commencing employment
- Employees can opt in earlier if they wish
- Employer & employee must jointly contribute a minimum of 8% of Qualifying Earnings into the scheme
- Employer must contribute at least 3%
- The employee can opt out within 30 days of enrolment, but the employer must not encourage or suggest this course
- The requirements including the minimum contributions will be phased in between October 2012 and October 2017
Employers can take steps now to prepare for 2012’s pension reforms by:
- Deciding what type of pension provisions you will make for staff- personal accounts or an existing scheme?
- Look at existing pension schemes in order to establish whether they meet the requirements of the Pensions Act.
- You may want to look into whether your existing HR/ Accounting systems be able to cope with the changes?
Wednesday 18 January 2012
Unfair Dismissal: Pitfalls to avoid
I hope none of my followers and readers have started the New Year with an employment tribunal claim for unfair dismissal being served on them! However unfortunately at the moment I seem to have an influx of instructions for unfair dismissal so I thought I would put together a quick reference guide of things to think about before dismissing your employee.
1. Always ensure that you adhere to the ACAS Code on disciplinary procedures and carry out:
- A careful and fair investigation of the issues;
- Inform your employee of the issues of concern in writing setting out a date for a disciplinary hearing and informing them the right to be accompanied;
- Conduct a disciplinary hearing, ensure minutes are taken and that your employee agrees with the minutes;
- At the hearings, explain the complaint and go through the evidence;
- Allow your employee a reasonable opportunity to ask questions, present evidence and call witnesses (if appropriate);
- Inform your employee in writing of the outcome of the hearing and provide them with the opportunity to appeal within a reasonable time frame;
- If your employee appeals then ensure that you provide them with a fair appeal hearing, following the principles outlined above, and ensure that the appeal hearing is heard by an independent person.
2. Make sure your actions would be regarded as falling within the range of reasonable responses by a reasonable employer.
3. Fair reasons for dismissal are:
(a) Capability or qualification;
(b) Conduct;
(c) Redundancy;
(d) Legality and
(e) Some other substantial reason (this can amount to a number of things).
4. Constructive unfair dismissals: think about whether a resignation can amount to being a dismissal?
5. Time Limits: your former employee had 3 months less one day from the date of dismissal to present their claim to an employment tribunal otherwise the tribunal lose their jurisdiction to hear their claim. So once it's been over 3 months since the dismissal you can breathe a sigh of relief and carry on doing what you are best at - running your business.
I hope I have given you some things to think about and remember if anyone has any questions, please do not heistate to contact me or leave a comment and I will get back to you as soon as I can!
I hope you all enjoy the rest of your week.
Friday 13 January 2012
New Statutory Rates
| Current Rate | New Rate | Effective From | |
|---|---|---|---|
| Guarantee Pay | £22.20 | £23.50 | 01/02/12 |
| The limit on the amount of a weeks pay for the purposes of calculating, among other things, statutory redundancy payments and the basic award for unfair dismissal | £400.00 | £430.00 | 01/02/12 |
| The maximum compensatory award for unfair dismissal | £68,400 | £72,300 | 01/02/12 |
| The minimum basic award in cases where the dismissal was unfair by virtue of health and safety, employee representative, trade union, or occupational pension trustee reasons | £5,000 | £5,300 | 01/02/12 |
| Statutory Maternity, Paternity, Additional Paternity, Adoption Pay and Maternity Allowance | £128.73 | £135.45 | 01/04/12 |
| Statutory Sick Pay | £81.60 | £85.85 | 06/04/12 |
Wednesday 11 January 2012
Changing terms and conditions of employment contracts fairly
In the New
Year there has been great media speculation about whether we are heading
towards a double dip recession. This is unwelcomed news for employers and
employees who will both be faced with difficult decisions.
If you are an employer who as a result of a downturn in work is considering how to effect changes to your employees' terms and conditions then you might be in luck the EAT has provided you with some guidance in Slade and Others v TNT (UK) Ltd [2011] UKEAT/0113/11/DA. In this case, the four claimants were test cases for some 183 cases.
Slade and Others has expanded on the case law history surrounding the definition of 'some other substantial reason' which is a ground for fair dismissal (under section 98 of the Employment Rights Act 1996). The employer in this case found that they needed to cut costs due to the economic downturn; therefore they decided to discontinue the bonus it had previously paid to their employees.
The employer entered into consultation with the employees union and offered a settlement payment as an incentive for employees to enter into a new contract of employment which excluded the bonus. However when a mutually acceptable solution could not be reached the employer terminated the employees' contract of employment
The employer then offered to re-engage the employees under new terms and conditions, excluding the bonus payments and initially proposed settlement payment. The employees (bringing the claim) then accepted the new contracts but did so under protest and reserved their right to bring an unfair dismissal claim.
The tribunal were asked to decide:
The EAT upheld the ET decision.
Therefore providing (and this is important) an employer (a) is trying to change the terms and conditions of his existing employees for 'some other substantial reason' (b) consulted has taken place and (c) an offer to effectively 'buy out' certain existing rights was made then the dismissal maybe fair.
If you are/have been effected by a similar situation and would like some further information in respect to this matter please do not hesitate to contact me on 01133 504030 (free initial consultation) or add a question on my blog.
If you are an employer who as a result of a downturn in work is considering how to effect changes to your employees' terms and conditions then you might be in luck the EAT has provided you with some guidance in Slade and Others v TNT (UK) Ltd [2011] UKEAT/0113/11/DA. In this case, the four claimants were test cases for some 183 cases.
Slade and Others has expanded on the case law history surrounding the definition of 'some other substantial reason' which is a ground for fair dismissal (under section 98 of the Employment Rights Act 1996). The employer in this case found that they needed to cut costs due to the economic downturn; therefore they decided to discontinue the bonus it had previously paid to their employees.
The employer entered into consultation with the employees union and offered a settlement payment as an incentive for employees to enter into a new contract of employment which excluded the bonus. However when a mutually acceptable solution could not be reached the employer terminated the employees' contract of employment
The employer then offered to re-engage the employees under new terms and conditions, excluding the bonus payments and initially proposed settlement payment. The employees (bringing the claim) then accepted the new contracts but did so under protest and reserved their right to bring an unfair dismissal claim.
The tribunal were asked to decide:
1. Whether
the dismissals were fair and
2. Whether
the employees who did not accept the settlement payment were entitled to it.
The
Employment Tribunal (ET) held in the employers favour on the basis that the
employer had a valid business reason for dismissing and re-hiring its employees
on the new terms. Further they held the employees who did not accept the
settlement payment were no longer entitled to it, since they had not
compromised their position to bring their potential claims unlike the employees
who had accepted the settlement payments.
The EAT upheld the ET decision.
Therefore providing (and this is important) an employer (a) is trying to change the terms and conditions of his existing employees for 'some other substantial reason' (b) consulted has taken place and (c) an offer to effectively 'buy out' certain existing rights was made then the dismissal maybe fair.
If you are/have been effected by a similar situation and would like some further information in respect to this matter please do not hesitate to contact me on 01133 504030 (free initial consultation) or add a question on my blog.
Friday 6 January 2012
Queens Diamond Jubilee: 5 June 2012
I hope that you have all had a great Christmas and New Year break...the most difficult week of the year is over!!
I thought I would reminder all employers that this year there will be an additional bank holiday on 5 June 2012 to celebrate the Queens Diamond Jubilee which falls right after the Spring Bank Holiday on 4 June 2012. This may result in a high volume of holiday requests from employees for the 6-8 June 2012 as they will be looking to enjoy a longer break by using fewer annual leave days (well they do deserve it).
But those of you with businesses may (if you have not already done so) want to set a policy to either restrict the number of employee’s taking annual leaving during those dates, particularily SME's who may find themselves in a position where they have no staff on those dates!
If you need any further advice and assistance in respect to this please do not hesitate to contact me.
Tuesday 3 January 2012
Redundancy checklist for employers
Employee's are a companies greatest asset and no successful business owner wishes to make redundancies, however sometimes there is no other choice so I have put together a guide to ensure that if your business is faced with this difficult dilemma you can ensure that you undertake a fair and proper procedure.
First Consultation Meeting:
- Meet with all of the employees who might be made redundant (as a group).
- Explain the reasons for the potential redundancies.
- Explain how many jobs are at risk of being redundant.
- Explain the methods being explored to avoid the redundancies (for example, restrictions on recruitment, alternative employment, re-training, voluntary early retirement, voluntary redundancy, short-term working and restricting overtime).
- Explain the selection criteria and scoring guidelines.
- Confirm the information given during the meeting in writing.
- Include a copy of the selection criteria and scoring guidelines.
- Score each potentially redundant employee using the selection criteria and scoring guidelines.
- Ensure that at least two line managers conduct the scoring, to help ensure scores are objective.
- Write to those employees that have been provisionally selected for redundancy, inviting them to a meeting to discuss their provisional selection.
- Include an invitation to bring a trade union representative or colleague to the meeting.
- Ensure that the letter is reasonably detailed, setting out the reasons for the redundancy situation and for provisionally selecting the employee for redundancy, and summarising the consultation that has been held with them to date.
- Explain that no final decision has been made at this stage, and that a further meeting will be arranged if their selection for redundancy is confirmed.
- Allow the employee a reasonable opportunity to consider this information before holding the meeting.
- Consult with each employee individually about their scores, the proposal to select them for redundancy and the terms of the redundancy.
- Consider any comments from the employee, particularly in relation to their scores.
- Discuss details of any available alternative roles within the group (including those which would require some retraining and posts on a lower grade).
- Take a detailed note of the meeting.
- After the meeting, follow up any suggestions made to avoid the redundancies and consider any representations made on scores.
- If any employee's score changes as a result of this process, check if this will result in a change to the group of employees that have been provisionally selected for redundancy.
- If so, repeat the relevant parts of the procedure with any employees that have been selected for redundancy as a result of the review.
- Where a decision has been made to make an employee redundant, invite that employee to a further meeting.
- Allow the employee to be accompanied by a trade union representative or work colleague.
- Assuming that nothing has changed, confirm that the employee has been selected for redundancy.
- Go through the redundancy package.
- Remind the employee of the right to time off to seek alternative employment.
- Take detailed note of meeting.
- Write to the employee confirming the decision to dismiss them as redundant and specify the termination date (termination may be with immediate effect if the employer is paying the employee in lieu of notice).
- Explain the calculation of the redundancy payment and any other payments to be made.
- Confirm that the employee has the right of appeal. Explain how to appeal and the relevant time limit.
- If an employee appeals, invite them to attend a further meeting to hear the appeal. If possible, the meeting should be held by someone senior to the person who held the previous meeting(s).
- Allow employee to be accompanied by a trade union representative or work colleague.
- Following the meeting, write to the employee confirming the outcome of the appeal and state that this is the final decision.
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