Monthly Archives: May 2012

Managing Redundancies Effectively

 In today’s economic climate redundancy is likely to be an unavoidable consideration for employers.

Planning and executing a successful redundancy exercise is essential if claims of unfair dismissal and discrimination are to be avoided. Our practical seminar will consider:

  • What is redundancy
  • Alternatives to redundancy
  • Creating an effective framework for managing redundancies
  • Consultation obligations – collective and individual
  • Selection of individuals
  • Payments outside the statutory requirements
  • Common mistakes
  • Dismissing with minimal risk and avoiding claims

To reserve your place at our ‘Managing Redundancies Effectively’ seminar e-mail info@floydgraham.co.uk or call us on 01604 871143.

Mock Employment Tribunal

A big thank you to all sixty companies that attended our Mock Employment Tribunal at the Hilton Hotel yesterday, especially given the glorious sunshine.   We would also like to thank you for all of the fantastic feedback that we received following the event, a sample of which ranged from…

Realisation of detailed documents required before considering an Employment Tribunal”   Les Stringer, The White Company Limited

“Excellent, easily understood – explained well and language used understood.  Highlighted importance of following policies and procedures and what these policies and procedures state” Phillipa Villa, Polam School, Bedford – Cognita Schools

Excellent, good value, our clients would like to see more of these” Hellie Baxter, ACS Recruitment

“Very interesting, eye opening, thoroughly enjoyable”  Hayley Swann, Opus Energy Ltd

We hope that you can all join us for our next breakfast seminar on Thursday 5 July 2012, How to manage Redundancies Effectively.  Please contact us for more details, fgmedia@floydgraham.co.uk

 

Sunday Working – how do the rules change for the Olympics?

Shops will be able to open for longer on Sundays between 22 July and 9 September 2012 and employees will be able to give shorter notice than usual to opt out of Sunday working during this period.

New legislation was passed on 1 May 2012 changing the rules for Sunday Trading during the Olympics.  As well as enabling shops to open on Sundays between 22 July and 9 September 2012, it reduces the notice that workers need to give if they wish to opt out of Sunday working during this period.  Usually the necessary notice period is 3 months.

Who does this affect?

This only applies to shop workers: 

  • that work in “large shops” that are normally subject to restrictions on their trading hours on Sunday;
  • who are not employed to work only on Sunday;
  • who have not currently opted out of working on Sunday; and
  • whose employer has given them a written statement explaining the steps they must follow to serve an “opting-out notice” within 2 months of the worker becoming entitled to opt out.

What notice does a relevant shop worker need to give to opt out?

If the employer has not served the obligatory written statement explaining how to serve an “opting-out notice”, then the worker need only give one month’s notice of their intention not to work on a Sunday.  Otherwise:

  1. If the worker gives notice between 1 and 22 May 2012 inclusive, the notice period ends on 21 July 2012.
  2. If the worker gives notice between 22 May and 9 July 2012 inclusive, the notice period ends two months after the day on which the notice is given.
  3. If the worker gives notice on 10 July 2012 or later, the notice period of 3 months applies.

The notice must be in writing, signed and dated by the worker and state that the worker objects to Sunday working.  The end of the notice period is the date from which the employee has chosen not to work on a Sunday.

What effect will giving notice have?

Once the notice period has expired, the shop worker has the right not to work on a Sunday.  The employer will not be required to pay workers on Sundays when they don’t work.  The worker cannot be dismissed or subjected to a detriment because they have opted out of Sunday working.

If the notice states that the worker objects to working Sundays during the Olympics period, they will automatically opt back in to Sunday working after 9 September 2012.

Contact Information

Hazel Robbins, Solicitor

hazel@floydgraham.co.uk

+ 44 (0) 1604 871143 

This update is for general guidance only and does not constitute definitive advice.

Lapdancer is Held to be an Employee

The employment status of an individual is important for a number of reasons. From an employment law perspective, certain legal rights only apply if an individual is an employee. For example, rights on termination of employment such as the right not to be unfairly dismissed and the protection of the ACAS Code of Practice on Disciplinary and Grievance Procedures.

Whether an individual is an employee is determined by consideration of a number of factors including:

  • mutuality of obligation; and
  • the “employer’s” control over the employee.

When deciding whether an individual is an employee, the actual relationship will be looked at as well as the terms of any written agreement.

In the case of Quashie v Stringfellows Restaurants Ltd, the Employment Appeal Tribunal (EAT) considered the employment status of a lapdancer. Miss Quashie had claimed that she had been unfairly dismissed when Stringfellows terminated her employment for drug taking/dealing. She would only be able to have her claim heard for unfair dismissal if she was held to be an employee.

The Employment Tribunal decided on the evidence that Miss Quashie was not an employee. This decision was overturned by the EAT on the basis that there was mutuality of obligation between Miss Quashie and Stringfellows. In particular:

  • Miss Quashie had to perform at the direction of Stringfellow’s management;
  • Stringfellows had to provide the opportunity for Miss Quashie to dance;
  • Stringfellows imposed a requirement to dance on the stage at various times during the night without pay;
  • Stringfellows was also obliged to exchange the vouchers she earned into sterling, deducting only that which had been agreed between them;
  • Miss Quashie would be fined and money deducted from her pay if for example, she did not turn up to work; and
  • There was no scope for her to send a friend to do the work for her.

In summary, the provision of the opportunity to attract customers was very definitely a mutual benefit.

The EAT went on to find that in addition to there being mutuality of obligation and as such, employment status on the nights that Miss Quashie worked, this mutuality of obligation also extended between the periods that she did not work. This meant that she had accrued one year’s service for the purpose of bringing a claim for unfair dismissal. The case has been returned to an Employment Tribunal to now decide if she has been unfairly dismissed.

This case highlights once again the importance of taking into consideration all of the surrounding circumstances when determining employment status. Employers should be wary of what the actual status of their workers is given the legal and other associated responsibilities that an employer has where an employment relationship is held to exist

If you would like any further advice on matters concerning employment status, please contact Rachael Jessop using the contact information below.

Contact Information

Rachael Jessop, Solicitor

rachael@floydgraham.co.uk

+ 44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.

Floyd Graham & Co Solicitors are Delighted to Announce the Arrival of “Flight Plan”- Assistance for Start up Businesses Wishing to Employ Staff

“Flight Plan” is Floyd Graham & Co Solicitors’ no cost start-up pack of Employment and HR documentation for new businesses, which are less than 6 months’ old, and seeking to employ staff.  This initiative arises out of Floyd Graham & Co Solicitors’ desire to support start up businesses in the current climate.

Floyd Graham & Co Solicitors realise how difficult it can be for start up businesses faced with a minefield of employment legislation and HR practices. The pack contains the following documents:

  • Flight Plan – How to Take on Employees. A guidance note on:
    • The recruitment process
    • Information that must be contained within a contract of employment
    • Information about the staff handbook
    • During employment including guidance on the probationary period, holidays and absence
    • Guidance note on the common misconceptions about employment
  • Recruitment Flowchart
  • Standard Job Description
  • Checklist – Pre-advertisement of Role
  • Standard Application for Employment
  • Standard Equal Opportunities Monitoring Form
  • Letter Inviting a Candidate to an Interview
  • Standard Contract of Employment
  • Working Time Election Form
  • Letter Offering Employment
  • Standard Staff Handbook
  • Holiday Request Form
  • Sickness Self Certification Form
  • Guidance Note on Possible Additional Benefits for Employees.

As stated above, this pack of documents is available to businesses which are less than 6 months’ old for a no cost contribution.

For more information, please contact our team by telephone on 01604 871143 or by email on info@floydgraham.co.uk.

Queen’s Speech confirms plans for shared parental leave

The Queen’s Speech announced a number of Bills to be introduced which will have an impact on the workplace including the introduction of shared parental leave

The Queen’s Speech confirmed amongst other things the Government’s commitment to reform employment law, overhaul the employment tribunal system and encourage earlier resolution of employment claims.

The most challenging change from an employer’s perspective is however contained in the Children and Families Bill and arises from the plan to introduce a new period of shared parental leave following the birth of a child.  The aim is to allow parents to have greater flexibility in the way they plan when and which one of them will care for a child. The aim is to allow them to suit their own family’s needs.  Some commentators believe this will play an integral part in staff engagement; others see it as another complex regulated system which employers will have to get to grips with.  In reality will this planned change deliver the Government’s vision of parents sharing equally their child care responsibilities?  Current studies show that so far the take up of paternity leave and parental leave by men has been low.

Whilst the detail of the new parental leave system has yet to be announced it is hoped that the Government has listened to the critics and will ensure that what is introduced is a straightforward and easy system to administer.    We will let you know of any developments as they arise. 

Contact Information

Helen Taylor, Senior Associate Solicitor

helen@floydgraham.co.uk

+ 44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.

How Age Discrimination Might be Justified (Or Not as the Case May Be)

The purpose of this article is to analyse two high profile decisions handed down from the Supreme Court (the highest UK Court) which has sought to tackle the issue of when direct and indirect age discrimination might be justified. The cases dealing with direct and indirect age discrimination shall be referred to as Seldon and Homer respectively.

The Equality Act 2010 (EQA) permits direct and indirect age discrimination where an employer can justify this adverse treatment i.e., where it can be shown that the discrimination of an employee because of age is a “proportionate means of achieving a legitimate aim”.

By way of a reminder, here are two practical examples of direct and indirect age discrimination:

  • Direct – an IT company with a policy of not recruiting older employees because they do not fit in with the youthful culture of the company; and
  • Indirect – where an employer imposes a requirement for a minimum number of years’ experience for a particular job that places younger employees at a disadvantage.

Seldon – Direct Age Discrimination

Facts

  • Mr Seldon was a partner of a solicitor’s firm.
  • He was subject to a mandatory retirement age of 65 years old which was contained within a partnership agreement.
  • Upon reaching 65 years’ old, Mr Seldon asked the other partners if he could continue to work beyond 65.
  • His request was rejected on the basis of there being no sufficient business need.
  • Upon termination, Mr Seldon issued proceedings against the firm for direct age discrimination.

The Supreme Court’s (the Court) Decision

It was agreed by both parties that Mr Seldon had been forced to retire.  The question that needed to be considered was whether or not this treatment could be justified. To answer this, the Court had 3 issues to consider:

1.   Whether all three aims of the retirement clause identified by the employment tribunal (retention of associates, workforce planning and allowing an older or less capable partner to leave without the need to performance manage them out i.e., allow them to leave with dignity) were capable of being legitimate aims and therefore able to justify the age discrimination.

The Court agreed that the three aims could be legitimate. Whereas the employment tribunal had stated that these were individual aims of the business, the Court stated that these aims were legitimate social policy reasons such as sharing out professional employment opportunities fairly between the generations and dignity.

It was also noted that UK Law and EC Law are not compatible in so far as they treat justification for direct and indirect age discrimination. EC Law focuses on whether age discrimination could be justified for public interest reasons (employment policy, labour market or vocational training) in direct contrast to UK law which looks at purely individual reasons particular to the employer’s situation. The Court has stated that UK Law must be interpreted in light of EC Law i.e., there must be consideration of public interest reasons where seeking to justify direct age discrimination not simply reasons particular to an individual employer’s situations i.e. cost saving or increasing competitiveness.

2.   Whether the firm has not only to justify the retirement clause generally but also the application of it in the individual case.

The Court stated that once an aim has been identified, it has to be asked whether it is legitimate in the particular circumstances of the employment or partnership concerned.

3.   Whether the employment tribunal was right to conclude that relying on the clause in this case was a proportionate means of achieving any or all of the legitimate aims.

On this point, the Court referred the case back to the employment tribunal to consider whether the choice of 65 years old in this case was a proportionate means of achieving a legitimate aim (i.e. was it appropriate and necessary?).

What does this mean for you?

On the face of it, you may see this decision as a precedent for it being lawful to force staff to retire at 65 or having any other fixed retirement age. This is not the case as there were specific factors which applied to this solicitors’ practice which would not be relevant to every organisation. Unfortunately, the judgment goes no further in giving any guidance on whether 65, 70 or any other age would be a justifiable retirement age.

This case does however set out that the test for justifying direct age discrimination is different and narrower than the test for justifying indirect discrimination. To justify direct age discrimination, an employer must be able to show that there is a potentially legitimate aim, which is capable of being a public interest aim and that aim is legitimate in the particular circumstances of the business.

Whilst this case does not tell us what an appropriate retirement age would be, it does indicate that compulsory retirement may be possible in very specific circumstances.   Employers should however take from this decision that each case is likely to be different.  Any employer wishing to have a fixed retirement age is going to have to ensure that the legitimate aims satisfy the public policy requirements as well as its own.  To be on the safe side an employer should ensure there is an audit trail in place to support its decision should its policy come under scrutiny.

Will this decision change an employer’s approach? Possibly not. Many employers have already abolished fixed retirement ages, choosing instead to rely upon good performance management.   For those who continue to rely upon a fixed retirement age or wish to introduce one, our advice is that they must consider whether they need a policy that discriminates against people because of their age and if so, whether they are able to justify that policy.

Homer – Indirect Age Discrimination 

Facts

  • Mr Homer began working for the Police National Legal Database (PNLD) as a legal advisor in 1995 at which point the role did not require a law degree or equivalent.
  • In 2005 PNLD introduced a new grading structure to improve career progression and offer more competitive salaries. PNLD’s aim was to recruit and retain the best staff.
  • Of the new grading structure Mr Homer met the 1st and 2nd thresholds but not the 3rd.
  • In order to reach the 3rd and highest threshold, he would have to acquire a law degree.
  • At this time Mr Homer was 62 years old and the law degree would take 4 years which would take him beyond his retirement age of 65.  As such he could not benefit from the increased salary and status.
  • Mr Homer brought a claim under the Retirement Regulations (that have now been repealed) on the basis that the requirement for the law degree was indirectly discriminatory on the grounds of his age i.e., the requirement to have the law degree caused a particular disadvantage to someone as old as him compared to younger employees.

The Supreme Court’s (the Court) Decision

The Court held that Mr Homer was put at a disadvantage by the requirement to have a law degree before retirement, when he did not have the time to acquire it; if the requirement could not be justified then it would constitute indirect discrimination.  The Court provided some useful guidance on the test for justification but concluded that the case should be sent back to the employment tribunal to consider the question of justification. The tribunal will now have to assess whether the aim of recruiting and retaining the best staff was legitimate and if so, whether that aim was proportionate in the sense that were the measures used to achieve that aim appropriate and reasonably necessary.

The Issue of Justification 

It was noted by the Supreme Court that the range of aims capable of justifying indirect discrimination is greater than those available in the context of direct justification – see the case of Seldon (which is summarised in a separate legal update). Whereas it would not suffice for direct discrimination, a real business need on the part of the employer and nothing more could justify indirect age discrimination. The tribunal will also have to explore whether PNLD could have achieved its aim by other non-discriminatory means.

What does this mean for you?

As the case has been sent back to the employment tribunal for a decision in relation to justification, this case does not tell us anything more than we already knew in so far as justification is concerned.   What the case does highlight though is that whilst a real business need alone may be sufficient to establish justification, employers will need to be aware that an employment tribunal when considering if the requirement was reasonably necessary, enquire whether there were non-discriminatory alternatives.

If you would like any further advice on age discrimination issues, please contact Rachael Jessop using the contact information below.

Contact Information 

Rachael Jessop, Solicitor

rachael@floydgraham.co.uk

+ 44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.

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