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Employees' rights & benefits
Payroll officer in alleged sick benefits swindleA council payroll officer who took long-term sick on full pay after claiming he had a back injury is in court facing fraud allegations after he was filmed sprinting on a running track and coaching young athletes while on leave.
Matthew Thomas, who had been a keen and former professional athlete, had previously represented St Lucia in the Commonwealth Games.
During his time off sick, he received £13,892.12 in wages.
But the Inner London Court heard how the Newham council employee was earning extra money working for the Metropolitan Police, in an initiative to coach young runners.
He spent seven months off sick and finally resigned in 2008. Before his resignation, the payroll officer from East Ham claimed he was unable to work after he fell from a ladder and injured his back.
Mr Thomas was subsequently filmed coaching and running at two London athletics tracks and even competing in a race.
The defendant denies one count of fraud by failing to disclose information about the work he did with the Metropolitan
Police and a further 10 counts of fraud by false representation due to the sickness certificates he submitted.
However, during interviews Mr Thomas admitted he had trained and coached while off sick but said he had participated in the
competitions as a way of receiving free physiotherapy.
The case continues.
02/09/10Male worker wins bias caseA man has won a claim of sex discrimination in a case where his employer dismissed him instead of a pregnant colleague – ironically for fear of a tribunal case. To deepen the irony, the case was at the Leeds office of leading law firm Eversheds.
John de Belin won £123,000 in damages after successfully claiming discrimination following the firm’s decision to make him redundant. Chris Syder, head of employment at law firm Davies Arnold Cooper, told Personnel Today that it was a ‘fascinating case’. He said that following the ruling, many employers will have to review their redundancy criteria.
Mr De Belin and his pregnant colleague, Angela Reinholz, both faced redundancy from Eversheds’ property division in Leeds. Eversheds’ redundancy programme was based on a points system judged against certain criteria.
The law firm undertook an assessment of the capabilities of both employees, including commercial performance, discipline history and absence records. After losing by half a point, Mr De Belin was made redundant in February 2009, but he claimed that the test score had been ‘unfairly inflated’ to the advantage of his female colleague.
In the judgment, Judge Jeremy Shulman said: ‘We do not find that the Sex Discrimination Act was intended to protect a woman on maternity leave in a redundancy-scoring exercise, where we find that she received an unfairly inflated score when all other scores were actual, the notional score being designed to defeat a tribunal case by Ms Reinholz.’
Eversheds has appealed. It will claim that Mr De Belin would have been treated in the same way if he were a woman, meaning he could not be subject to sexual discrimination.
03/06/2010Extreme stress on riseOne in four employees dreads going back to work on a Monday, a major report by health charity Mind has revealed. Employees were questioned about their levels of anxiety and more than 26% said they felt dread and apprehension the day before going back to the office.
Respondents reported being physically sick on Sunday evenings at the thought of going into work on a Monday morning and having panic attacks on the train on the way into work.
The report also found that workplace stress is at an alltime high due to bullying in the workplace and job security worries. Some 20% of employees surveyed said they had called in sick because of unimaginable stress levels, according to research.
Mind’s chief executive, Paul Farmer, said: ‘Working conditions have been incredibly tough and the emotional fallout of the recession doesn’t just centre around people who have lost their jobs but on those who are struggling to cope with the extra demands of working harder, longer hours, under more pressure.’
The number of people who said they had left their job due to stress rose from the 2004 figure of 6% to 8% by 2008.
03/06/2010Christian loses necklace caseA Christian nurse who refused to remove a crucifix during working hours has lost a claim of discrimination against her employers. The nurse, Shirley Chaplin, was moved to a desk-based role after she refused to remove a crucifix necklace. Ms Chaplin was told by an employment tribunal that wearing the cross is not a ‘mandatory requirement’ of her faith.
The requirement to remove necklaces and chains is a health and safety matter, preventing aggressive patients from pulling at the neckwear.
Audrey Williams, head of discrimination at international employment law firm Eversheds, said: ‘Proving unlawful discrimination is no simple matter. And unlike in some other countries – for example the US – there is no general obligation on employers to accommodate an individual’s religious beliefs.’
This is the latest in a series of cases brought by an employee whose religion has brought them into conflict within the workplace.
04/05/2010Agency Workers Regulation under threatThe Government has delayed the implementation of the Agency Workers Regulation until October 2010, throwing its future into jeopardy. The Conservatives opposed the regulations vigorously from the beginning of the formation, and there is now concern that if they win the next election they may seek to amend, or even attempt to repeal, the regulation. They believe the regulations will have an adverse effect on agency workers as end users will avoid using them. But an employment law firm has warned employers not to rely on the possible change of government to make compliance easier.
Mark Hammerton, partner at international law firm Eversheds, explained there is little room to change the legislation: ‘The reality is that any Conservative Government would have limited power to amend the regulations, let alone repeal them, given that they derive from EU legislation. A failure to implement the Directive in full would lead to the EU taking enforcement action against the UK,’ he said.
In addition, the Trades Union Congress is in favour of the regulations, so any proposed changes by a Conservative Government would be seen as protecting employers’ interests over and above agency workers.
04/05/2010Tribunal rules on holiday lost to illnessHoliday days that were lost to sickness can be carried over into the next year, a tribunal has ruled. In Shah v First West Yorkshire Limited, where Shah had booked four weeks’ holiday but due to sickness absence was unable to take it, the Employment Tribunal followed the recent European Court of Justice (ECJ) ruling, which held that holidays can be carried over to the following leave year.
‘This is the first Employment Tribunal case since last year’s related ECJ decisions on sickness and holiday pay,’ said Matthew Tom, employment lawyer at Candey. ‘It is not binding on other tribunals, but is an indication that tribunals will attempt to interpret UK law in line with EU legislation and decisions where possible to do so.’Men loath to take new paternity leave optionOnly one in five working men plans to take up the full sixmonth paternity leave when it comes into affect in April next year, a survey has found.
Under new paternity legislation, new mothers can transfer the second half of their 12-month maternity leave to the baby’s father, but over a quarter of working men said they would not take any of that time off.
Nearly half the respondents listed money concerns as the main factor, while 15% said they were too vital to their business to take six months off.
The study, carried out by YouGov for Orange, also found that 3% believe the senior management in their company are actively against taking paternity leave.
Over three-quarters of respondents, however, said they would use flexible working arrangements if their employer encouraged it.
Orange UK director for small and medium businesses, Martin Lyne, said: ‘It is right that businesses [enable] male employees to take their full paternity leave. And it does not have to mean huge sacrifices by either party.’Firms scrap sick pay and switch to SSPEmployers are increasingly relying on Statutory Sick Pay rather than providing their own sick pay, research has revealed. Over half (55%) of employers surveyed rely on state-funded statutory sick pay, which is £79 per week, the research conducted by Group Risk Development (GRiD) the trade development body for the group risk industry, found.
Employers are a tough bunch to crack, as 38% had no problem revealing that they felt under no obligation to support sick staff or their family members if they die.
Katharine Moxham, spokesperson for GRiD said: ‘Fostering self sufficiency is a noble aim but it’s no easy task to get consumers to take personal responsibility for their own protection needs. What’s more, it’s not just employees who need protection. Long-term absence can have a devastating impact on a business too, and employers need to factor this into their plans.
‘Where once companies felt duty bound to provide financial support, leisure facilities and even housing for employees, today’s provision is much more streamlined,’ she added.
But the trade body is concerned that not enough employers provide any provision for employees let alone any kind of leisure facility.
Speaking to Payroll World about its concerns Ms Moxham said: ‘It indicates the end of paternalism. There was a time when employers offered all sorts to employees such as death benefits, mortgage subsidies among other things.
‘We encourage employers to provide a Group Income Protection policy (GIP) which also offers services to help rehabilitate people back to work,’ she added.
01/02/10Olympic staff angry about biometric useBiometric hand and iris recognition systems have been installed at entry points at the 2.5 sq km Olympic site ahead of the 2012 games. Only workers who are scanned by the state-of-the-art biometric testing systems will be allowed into the site, following fears that the area is now a major terrorist target.
The biometric scanners are just one of a range of security measures authorities have introduced. UK Border Agency officials have also been deployed to check workers’ documentation and a perimeter fence with a 4m high electric barrier has been constructed around the site.
However, civil rights groups have questioned the measures ahead of the 2012 Olympic Games. The Human rights campaign group Liberty told Payroll World there was an issue around dignity in the workplace.
Director of policy Isabella Sankey said: ‘Of course security is important, but so is dignity and trust in the workplace. The use of biometrics can always be justified in certain security sensitive situations. But iris scanners for construction workers, three years before the flame arrives, seems heavy-handed.’
But others, such as Security Minister Lord West, defend the tough measures as necessary. For instance, the high security levels will serve to quash the practice of illegal labour on the site. Some 136 suspected illegal workers were arrested at the site in just five months last year, according to government figures.
In addition, the biometric scanners will help staff to clamp down on the practice of ghost working, whereby someone clocks in on behalf of someone else.
03/11/09Outrage at scrapping of childcare vouchersChildcare Voucher organisations have denounced the Government’s proposals to scrap the Childcare Voucher scheme and replace it with ten hours of free childcare per week for two year olds as ‘ludicrous’.
Speaking exclusively to Payroll World following the Prime Minister’s announcement at September’s party conference, Catherine Maddox, director of My Family Care Vouchers, said the general feeling from all groups – including parents, employers and childcare organisations – was that it was a ‘bizarre move’.
My Family Care Vouchers, along with several other organisations, launched a petition in support of the scheme, which it said: ‘Provides excellent tax and NI savings in childcare costs for children from 0 to 15, saving many working parents £1,000 a year.’
Ms Maddox said: ‘The general feeling from parents, employers and childcare organisations is that it’s commendable to extend funding to two year olds. But the problem is that it will be means-tested, so we’re not talking about helping everyone.’
Her concern is that the current system benefits a wide range of people, including those with children aged up to 16.
The new proposals mean every other age group would be affected.
‘To fund it, they’ll take it away from every other age group, which is a totally ludicrous thing to do,’ Ms Maddox added.
The organisations claim the current system helps a broad range of industries and parents, because it gives them choice in how to spend the vouchers – whether that be with a childminder, nursery activity or an after school group. The new proposal narrows the benefit down to a small sector. The group is particularly dismayed because between 2005, 2006 and 2007, measures were introduced to improve the policy year-on-year. In its ten-year plan, the Government fully supported the current voucher system.
Ms Maddox explained: ‘We urged [the Government] to bring in the funding for two year olds and the industry thinks it’s great, but it would be very damaging to getting parents back to work – and, crucially, keeping them in work – if it is limited to just this age group.”
She warned that if the Government proceeds, it risks producing a ‘lopsided workforce’.
At the time of going to press, the petition had received 45,173 signatures.
03/11/09Employers' outrage builds over ECJ sick pay rulingEmployees who fall sick during a period scheduled for annual leave should be allowed to reschedule their holidays, the European Court of Justice (ECJ) has ruled. If employees go on sick leave during this period, they would be entitled to reschedule their holiday even if it means carrying leave forward to a subsequent holiday year.
The ruling has provoked outrage among groups representing businesses that say the ruling is ‘disturbing’. The Chartered Institute for Personnel & Development (CIPD) claimed the ruling could force employers that offer good existing occupational sick pay schemes to implement less generous statutory sick pay offerings.
Ben Willmott, senior public policy adviser at the CIPD, said the ECJ judgement is ‘divorced from the real world’.
He said: ‘This is an extremely disturbing ruling that could be impossible for employers to manage.
‘It is well established that employers should take on some of the risk of employees being sick on work time, but it is basic common sense that they, in turn, should be willing to accept the risk that they may be sick on their holidays.
A holiday resort tummy bug or an ill-timed cold is an unfortunate fact of life,’ Mr Willmott added.
The Federation of Small Businesses told Payroll World that this kind of ruling threatens the good relationship many employers enjoy with their staff. ‘It is a piece of legislation that is another burden on small businesses,’ said a spokeswoman.
‘Small businesses enjoy good links with employees and are already known for being reasonable when it comes to things like this. For example, if an employee breaks a leg while on holiday, it can normally be worked out.
But this adds a burden and begins to undermine the trust and relationship between the employee and employer.
‘It’s also unlikely that people would come back from their holiday and expect to be compensated.’
The FSB spokeswoman concluded that it has two broad concerns. She said: ‘What is a concern is the aspect of the legislation which states that where people have been off on long-term sick leave, they can claim back half of this. The other big thing is the burden of administration that this creates.’
01/10/2009Maternity rights 'should not be an inconvenience'The Government is to review new regulations that will give families greater flexibility in how they choose to look after their children. Under the plans, a new provision to switch leave from one parent to the other will be available during the second six months of the child’s life and would be an option if the mother has maternity leave outstanding.
Mary Honeyball, a London Labour MEP and member of the European Parliament’s committee on women’s rights and gender equality, told Payroll World: ‘Women should be employed; and to allow them to make adequate provision for childcare, they need the flexibility to make that choice.’
She added: ‘Business chiefs should not see maternity rights as an inconvenience. Women in their workforce who have experience and are well trained don’t lose their expertise. But if they decide to leave, then all of that investment is gone.’
The family-friendly policy would allow mothers to transfer the last six months of their maternity leave to the father, with three months paid.
Businesses concerned about the effect it will have on them were told by the Minister for Business, Pat McFadden MP: ‘The number of businesses affected is expected to be small – less than 1% of small businesses – and we will work with business to make sure any changes are introduced in a way that minimises burdens and gives them predictability in the provision of leave.’ The Government stated that the scheme has been designed in a way that minimises the administrative burdens on businesses. For example, parents will be required to self-certify by providing details of their eligibility to their employer; if necessary, their employers and HM Revenue & Customs will carry out further checks of entitlement.
To give employers time to adjust, the scheme will be introduced for parents of children due on or after 3 April 2011.
01/10/2009End of sick note culture on horizonThe ‘sick note culture’ could become a thing of the past following a consultation process by the Department for Work & Pensions, which incorporated the views of the payroll profession.
The consultation sought opinions over the format of the new computer-generated medical ‘fit note’, which can be used by employers to explain the range of work an employee can undertake when they return to work following a leave of absence.
Top of payroll professionals’ concerns, highlighted in recommendations by the Institute of Payroll Professionals (IPP) following a survey of members, was the issue of how statutory sick pay would be paid when an employee returns to work on reduced hours, under the assessment ‘fit for some work’.
Overall, though, the majority of respondents felt the introduction of fit notes (with a practice stamp) would aid administration, help with accurate record keeping and ensure medical certificates are easier to decipher. Many believed that in instances where the system states an employee ‘may be fit for some work’, the GP must have the option to include more details, as employers have a ‘duty of care’.
In addition, where the employee may benefit from job role changes, 80% of respondents agreed that a list of options should be available for the GP to consider.
A further 80% of IPP respondents also agreed the maximum duration of a medical statement should be less than six months, with many supporting a three month period.
The majority of concerns surrounded the viability for a doctor to accurately assess someone as ‘fit for some work’, as they have minimal or no knowledge of the workplace setup or conditions.
01/10/2009Employee taken to sex shop sues top city firmA top city firm is being sued by a former female employee for a record £40m after a male colleague allegedly tricked her into entering a sex shop, and she was reportedly subjected to harassment.
The former employee of auditors PricewaterhouseCoopers (PwC) told a tribunal that as she made her way to a team lunch, a senior associate held open the door of what she thought was a restaurant.
Romanian Mihaela Popa, 31, said she was ‘horrified’ to find herself in a porn store and ‘distressed’ when it became a standing joke in the London and Chicago offices. She explained that from then on, she was quizzed intrusively about her love life, asked by partners whether she liked visiting sex shops, mocked about her nationality and was told: ‘Romanians and Nigerians are not very different.’
She told Central London Employment Tribunal that she endured ‘absolute degradation’ from sexist and racist bullying and as a result, suffered a nervous breakdown. She resigned in 2006 after being off sick for several months with depression and anxiety.
Ms Popa lost previous tribunal claims of race discrimination, constructive dismissal and wrongful dismissal against PwC in 2007. She is suing PwC for victimisation on the grounds of her previous claims and demanding £40m - believed to be the highest claimed in such a dispute – for loss of earnings and hurt feelings.
PwC denies the claims, and the tribunal continues.
01/10/2009Men win equal pay in 'piggy-back' caseThere has been a further twist in the long-running public sector equal pay dispute, following the Employment Appeal Tribunal’s (EAT) judgment in McAvoy v South Tyneside Council: men can now bring equal pay claims based on a woman’s equal pay claim, an approach known as ‘piggy-backing’.
McAvoy is the first case to consider the status of male contingent claimants and was part of a group of three ‘multiples’, in which the other respondents were Hartlepool Borough and Middlesbrough Borough Councils.
Sarah Bourke, employment law barrister of Tooks Chambers who represented one McAvoy (and others), said: ‘Contingent claims usually arise where male workers bring equal pay claims comparing themselves with female colleagues who are bringing (or have brought) equal pay claims comparing themselves with male comparators. The councils argue that contingent claims are wrong on the basis that any difference in pay is not the result of unlawful sex discrimination.’
To date, a number of councils have settled claims brought by women, but have not made offers of settlement to male workers in the same jobs. This has led to both sexes receiving different rates of pay for the same job.
The EAT concluded the men were entitled to pay arrears as far as back as women, not just to the date of when their claims succeeded. At present, there are 12,000 ‘contingent’ male claims going through Employment Tribunals. The councils have been given permission to appeal the Court of Appeal decision.
01/09/09EAT clarifies 'sleep-in' payments for night care home workersThe decision of the London Employment Appeal Tribunal (EAT) on 24 June in the case of Smith v Oxfordshire Learning Disability NHS Trust clarifies the status for National Minimum Wage (NMW) purposes of ‘sleep-in payments’.
Mr Smith was a care worker in a residential home and required on occasion to ‘sleep in’. He received two regular payments – his monthly salary of £517.43, based on 15 hours a week at £7.94 per hour, and a sleep-in payment of £25 for nine hours (£2.70 per hour). In addition, he was entitled to a ‘disturbed night’ payment in the event of having to care for an emergency during the sleep-in.
Mr Smith appealed the decision of an Employment Tribunal to dismiss the claim because the sleep-in payment was an allowance that should not be considered part of his pay. The issue before the EAT was whether the sleep-in should be included for minimum wage purposes. The employer argued that it should.
The EAT referred to Regulation 15(1A) of the NMW Regulations, which suggests that the nine sleep-in hours should not be included in the calculation. The EAT’s decision was, therefore, to dismiss the appeal on the basis that if the sleep-in payment was not an allowance, it must be included in the total paid to calculate the average rate of pay for NMW purposes, or if it was an allowance, it was, nevertheless, attributable to the performance of the worker and still falls to being included in total payments for NMW purposes.
The decision will have an obvious impact on residential homes with staff that sleep in overnight.
01/09/09Medical professionals win right to representationDoctors and dentists working in the NHS will be allowed legal representation at internal disciplinary hearings, following a landmark decision in the Court of Appeal.
In Kulkarni v Milton Keynes Hospital NHS Trust, the Court of Appeal decided that NHS doctors and dentists are entitled to representation in cases where the individual faced a charge that could prevent them practising.
Dr Kulkarni, who was employed as a junior doctor by Milton Keynes Hospital NHS Trust, was the subject of allegations regarding his conduct towards a patient.
Following an internal investigation, Dr Kulkarni was informed that the Trust would be instigating disciplinary proceedings against him.
He requested legal representation at the hearing.
The Trust denied his request and argued that its procedures were based on Department of Health policy, which does not permit legal representation at disciplinary hearings.
Dr Kulkarni took his case to the High Court, where he also argued that under the European Convention of Human Rights he was entitled to legal representation.
The High Court ruled against Dr Kulkarni, but its decision was overturned on appeal. The decision has ramifications for the NHS as most employers have simply adopted the framework, which non-NHS Foundation Trusts are required to implement.
01/09/09Muslim cocktail waitress objects to dress codeFata Lemes, 33, has been awarded by London central employment tribunal £2,920 in compensation for hurt feelings and loss of earnings after refusing to wear a tight red sleeveless dress when working for eight days at The Rocket cocktail bar in Mayfair.
She said she was forced to resign, claiming £20,000 including £17,000 for hurt feelings. The panel called the level of her claim as ‘manifestly absurd’.
The tribunal panel explained that Ms Lemes, a Bosnian muslim, said the dress made her feel like a prostitute and that she held ‘views about modesty and decency which some might think unusual in Britain in the 21st century’. But it said that her employers hadn’t made allowances for her feelings and also insisting she wear the red dress.
The tribunal refused the claim that she was discriminated against because she did not receive tips for the eight days she worked. She was earning £5.25 an hour.
However, the panel ruled that forcing her to wear the dress to keep her job ‘violated her dignity’. The contrast between what men and women were required to wear made the bar’s policy discriminatory on the grounds of sex.
Fata Lemes was granted £3,000 compensation and £712 in wages, plus interest, but the amount was reduced by 25% because the members of the panel found Ms Lemes lawyer did not set the basis for the case properly.
30/07/09Tribunal rules on work status of sub-contractorSub-contractor Andrew Tilson has won an Employment Tribunal case which found that, despite his contractor status, he was in fact an employee with maintenance firm Alstom Transport. This finding has enabled him to claim unfair dismissal.
Mr Tilson, even though working through both a separate limited company which he billed on an hourly basis, as well as being paid through a separate payroll company, learned via an Employment Tribunal in Watford, that he was an employee of Alstom under the meaning of the Employment Rights Act 1996.
Graham Fisher, managing director of Genie Management, an umbrella firm that payrolls contract workers, said to Payroll World: ‘The consequences of this ruling are the same as the effects of the upcoming Agency Workers Directive – to make the UK plc workforce less flexible’ (see Letters).
Alstom had argued that Mr Tilson was self-employed but Mr Tilson thought he was an employee. Mr Tilson’s lawyers, Harold Benjamin Solicitors commented, ‘We recommend that employers get a ‘health check’ of their contractual arrangements and work practices with contractors to avoid finding themselves in the same position at Alstom.’
Mr Tilson's barrister argued that despite paying his own tax, the way Mr Tilson’s work was structured and the tasks he did were the real indicator as to his employment status.
The tribunal judge agreed that the close working proximity between Mr Tilson and Alstom was key in determining his employment.
30/07/09Disabled to receive greater protectionPeople with disabilities will receive greater legal protection from discrimination, following a landmark ruling from the House of Lords last month.
The Lords found that people with a physical or mental condition which changed in severity over time should still be termed ‘disabled’ if it is likely the condition will become substantial again in future.
The case was brought by Elizabeth Boyle, who alleged she had been discriminated against for 32 years by her former employer, SCA Packaging. She had developed vocal nodules, which she managed with a strict regime, including speaking very quietly.
Mrs Boyle began her legal action nine years ago after some partitions near her desk were removed against her wishes and the advice of her surgeon. It meant she had to speak more loudly than usual and potentially risked causing her condition to return. The company argued that Mrs Boyle was not disabled as her condition no longer had an adverse effect on her life.
Susie Uppal, director of legal enforcement at the Equality and Human Rights Commission, said: ‘Many people have chronic medical conditions, such as epilepsy or diabetes. Often, they do not define themselves as disabled as they can manage the symptoms. However, it is important these people are recognised as disabled under the law so they get the protection they need.’
30/07/09Law Lords say sick staff can take holiday payThe House of Lords has ruled that workers who are denied holiday pay while on sick leave can claim for payment of lost holiday. The case in question, Stringer v HMRC, was brought to a tribunal by a group of workers who had been on long term sick leave and wanted to claim for unpaid annual leave, even though they hadn’t been at work.
The Law Lords have affirmed a similar ruling made by the European Court of Justice (ECJ) in January 2009, which said that workers must be allowed to take missed holiday when they return to work, or be paid in lieu. The ECJ said that all workers are entitled to up to four weeks of holiday pay for each year they are on sick leave.
The ECJ ruling does not comply with the UK’s Working Time Regulations of 1998 which says employees must use all holiday within a year or lose it. Before, the Court of Appeal said that employees on sick leave did not accrue annual leave during the time they were not working.
Sue Ashtiany, head of employment at lawyers Nabarro, commented: ‘What employers may start doing is to notify staff who are on sick leave that they should convert some of that leave into annual leave. Or else, they will review their contracts and policies so as to enable them to refuse staff permission to take sick leave and make them take annual leave instead.
‘What employers will probably look at doing is not to let sick employees build up holiday; they will try to get the annual leave mopped up each year so that they are not exposed to claims for pay in lieu of annual leave in subsequent years of employment. The results are by no means in favour of employees.’
Nick Squire, joint head of employment at Freshfields, said that the Law Lords didn’t tackle some questions, such as: does going on ‘holiday’ mean that one sickness period has ended and a new one begins once the ‘holiday’ finishes? What happens to permanent health insurance during ‘holiday’?
Dawn Lobley, employment lawyer at Browne Jacobson, said: ‘Employers may want to consider expressly allowing employees to take their holiday entitlement during sickness absence.’
30/06/09Council loses £1m sickness caseCheltenham Borough Council last month lost its case in the High Court to sue former employee Christine Laird for £1m on the basis that she did not disclose her past experience of depression.
Mrs Laird was appointed in 2002, but left in 2005 on an ill-health pension after taking sick leave on full pay.
The council claimed it suffered financial losses as a result of Mrs Laird’s ‘deceit’.
The basis of the judgement was that the representations made by Mrs Laird in answer to the medical questionnaire were not false, nor were they misleading. The judge’s view focused on Mrs Laird’s understanding of her medical condition rather than her actual condition. Her understanding was that she had suffered attacks of anxiety and stress due to specific events, but not that she had suffered or was suffering from a depressive disorder.
Andrew North, chief executive of Cheltenham Borough Council, said the authority was disappointed. He added: ‘Had the council known Mrs Laird’s medical history it would most probably not have employed her.’
Mr Justice Hamblen dismissed the council’s action, but also rejected a counterclaim by Mrs Laird for damages. Mrs Laird said at the hearing that the work she did for the council was worth at least £1.5m in efficiency savings.
In court Mrs Laird said she had been forced out of office by a poor working atmosphere among the council members who opposed her implementation of restructuring departments.
The chief executive of mental health charity Mind, Paul Farmer said: ‘This ruling provides reassurance to the one-in-four people who will, at some point, have a mental health problem that they will not be penalised. ‘Mental illness is an illness like any other and employers need to do more to understand the issues people face and provide reasonable adjustments that help people to stay in their job.’
30/06/09Black worker in £65,000 discrimination caseA black worker who was employed at a Home Office immigration centre in 2006, and made redundant by a refugee charity, has been awarded more than £65,000 at an employment tribunal.
The tribunal ruled that Emmanuel Obikwu, 45, was unfairly singled out by the British Refugee Council when his Home Office-run immigration centre was closed. He and another black colleague, Zaina Ukwaju, lost their jobs at the Oakington Immigration Centre, near Cambridge, in May 2006. The remaining workers, all of whom were white, were promoted to new posts.
Mr Obikwu was awarded £65,475 for unfair dismissal, racial discrimination, psychiatric injury and loss of earnings. His Tanzanian-born colleague, Mr Ukwaju, was awarded £30,000 in January after suffering racial discrimination.
The British Refugee Council claimed that Mr Obikwu would have lost his job in May 2006 regardless of his skin colour. But the Suffolk employment tribunal ruled it was likely that operations manager Anne-Marie Leech ‘subconsciously’ favoured friends when selecting members of staff to be made redundant.
A spokesman for the British Refugee Council said it had reviewed procedures to ensure staff were treated equally and regretted causing distress to Messrs Obikwu and Ukwaju.
30/06/09'Youth' policy raises questions for Man UThere is speculation that Manchester United has made a decision not to sign players aged 26 or above for large transfer fees. Newspaper reports have asserted a transfer policy of signing only younger players, raising the possibility of an age discrimination claim by older players.
A spokesperson for Manchester United said that this was: ‘Merely press speculation. We only base our choice of player on their ability, nothing else like age or religion.’
Currently Manchester United’s oldest player is goalkeeper Edwin van der Sar born in 1970, and the youngest is Danny Welbeck, born in 1990.
A Freshfields lawyer Kathleen Healy commented: ‘The strategy does appear to give rise to age discrimination issues. The legislation says you can’t discriminate on grounds of age.
‘But age discrimination is different from the other strands of discrimination law in that discriminatory policies will can be lawful if they are a ‘proportionate means of achieving a legitimate aim’.
‘If a football club can show that the resale value of players aged 26 and over diminishes, such that the cash for such players can’t be recouped and therefore the strategy is needed in order to protect the club’s finances, then a club may be able to justify its approach. However, they need to know that courts tend not to be keen on economics alone as justifying discriminatory behaviour.’
Ms Healy continued: ‘The other question would be whether a football club’s ageist strategy actually causes loss to a player.’
30/06/09Providers set out plans for MP expenses reformThree of the UK’s employee expense management specialists have issued a joint statement claiming that the system on MPs’ expenses could be overhauled at a fraction of the cost currently being proposed.
GlobalExpense, Software Europe and WebExpenses have called on the House of Commons Commission to seek their advice. They claimed they could put in a robust system for just £60,000 – one tenth of the £600,000 a year being proposed for a new external auditing body.
David Vine, managing director of GlobalExpense, said: ‘Politicians are inventing solutions from scratch on a daily basis, yet none of these proposals are based on actual experience.’
The three companies made four key recommendations to the House of Commons Commission:
1. Automate – Automated expense systems can reject expense claims that fall outside policy, flag suspicious claims for further investigation, and produce reports for audit.
2. Pay tax – If MPs had to pay tax on their expenses as other employees do, they may spend according to their needs and not to limits set by an expenses policy.
3. Procure wisely – The Department of Finance and Administration should negotiate bulk purchase discounts for MPs’ secondhome appliances.
4. Invest in digs – The State could buy homes for MPs during their stay in office.
Expenses specialist Premier Envoy has introduced a more transparent expenses system for the Scottish Parliament. Transparency is the key, commented commercial manager Andrew Jones.
02/06/09Teachers slow to take up vouchers offerThousands of teachers have been missing out on childcare vouchers. There has been a surprisingly low take up of vouchers, claimed provider Early Years Vouchers, even though vouchers offer tax and NIC-free breaks for parents which can save them almost £2,000 a year to pay nurseries, childminders, after-school clubs and other childcare.
Teachers were originally left out of the childcare voucher scheme because local authorities were unprepared, but they were included in 2006, said Early Years. In addition, teachers have the school holidays free, and finish school earlier than they would in an office job, making it less vital for them to have vouchers. Now they are included, there has been a lead time in their realising they are eligible.
Sign-ons of vouchers in many other industries, including media and food manufacturing, have doubled and even tripled in recent months. Some commentators say schools and local authorities haven’t helped teachers be aware of their rights.
Ysgol Uwchradd Eirias is an award-winning school with 1,500 pupils aged 11-18 in north Wales. This year, the school’s business manager, Gwyn Jones, decided to set up a childcare vouchers scheme after a number of newly arrived teachers asked for one.
Ms Jones said: ‘Offering childcare vouchers has enabled us to provide real cash benefits to our hardworking mums and dads, which can help contribute to a better work/life balance.’
Amanda Ward, director of Early Years Vouchers said: ‘The average cost of a childminder or nanny currently stands at around £167 a week. Childcare costs rose 5% last year.’
02/06/09Warning on salary sacrificeThere are likely to be curbs on salary sacrifice schemes, given the scheduled rises in National Insurance Contributions, Kate Upcraft warned the Payroll World Annual Update Conference.
The rise in the employer rate to 13.3% from 2011/2012 ‘makes salary sacrifice even more attractive,’ she said. ‘There was nothing in the Budget on salary sacrifice, which was surprising given how much it cost to the Treasury, because of the popularity of the schemes.’
The schemes save employers’ NI by allowing a contractual change in which the employee accepts a lower salary in return for a benefit that can be provided NI-free.
01/05/09Welcome to the new disciplinary proceduresAnne Knell, partner at HR consultants Newways 90, rounded off the morning at the Payroll World ANnual Update Conference with a thorough look at employment law, tackling disciplinary procedures and how employers must handle the ACAS code of practice which came in April.
The new code, she said, is ‘welcome and much needed,’ and ‘In many ways [it] harks back to pre-statutory procedure which employers know, love and understand.’
It replaces the procedure laid out in 2004 which many complained was long-winded and overly complicated.
Now, if an employee or employer failed ‘unreasonably’ to comply with the ACAS code there could be adjustments to the amount awarded, by up to 25%.
Ms Knell also made the point that an old style formal verbal warning was no longer necessary, but it could still be used.
Turning to holidays and sick leave Ms Knell commented: ‘In some cases people are off sick for three to four years, when finally dismissed then they may be entitled to a similar number of years of holiday entitlement, according to the European Court of Justice.
Rulings of the ECJ on holidays and sick leave are now binding in the public sector, Ms Knell pointed out: ‘The House of Lords has yet to look at the private sector and decide how far holiday compensation should go.’
She also highlighted a significant toughening up of the operation of the National Minimum Wage, with criminal sanctions to be applied to the most serious breaches. ‘With effect from 6 April 2009, the most serious cases will be triable in the Crown Court in front of a jury. This means that employers who deliberately fail to pay the minimum wage may face stiffer penalties.’
01/05/09Age bias warning on redundancy plansThere are new employment considerations to take into account compared with previous recessions, Audrey Williams, partner at Eversheds, told delegates at the Payroll World Annual Update Conference on 23 April 2009.
Age discrimination rules, introduced in 2006, mean that either younger or older people could have a claim against an employer over the way in which a redundancy programme is operated.
Examples could include where older people are targeted for redundancy, or if younger people received less generous severance. But employers do have a defence where they can make a business case.
She said that legitimate aims are: encouraging and rewarding loyalty, aligning compensation with vulnerability in the job market, encouraging people to leave to make space for junior employees, make change easier for staff, and to try to avoid compulsory severances.
01/05/09Equal pay audits confirmedCompanies will be forced to conduct equal pay audits, in a measure included in the Equality Bill announced at the end of last month.
The reform took some commentators by surprise, but it has been under consideration at senior ministerial level for more than a year. It was advised as likely by employment lawyer Audrey Williams at the April 2008 Payroll World conference.
The reform, a move to narrow the gender pay gap, is an internal victory for Equalities Minister Harriet Harman, who has fought internal opposition on this.
Compulsory ‘gender pay audits’ will seek to expose employers that pay women less on a systematic basis. Whether they succeed in reducing the pay gap is contentious. Many commentators argue that the differences reflect different career trajectories and choices by individuals, as well as straightforward discrimination causing lower hourly rates for the same work.
The measure comes almost 40 years after the first Equal Pay Act became law. It is yet another example of creeping mandation of human capital reporting. Though formal human capital reports were ruled out by the then Chancellor Gordon Brown in December 2005, more and more aspects of a company’s human resources policy, particularly around remuneration, are being subject to publication through Government rules.
Earlier this year the Turner Report specified rules that require financial services companies to publish their remuneration schemes and ensure that they do not incentivise operational risktaking.
In a bid to establish more pay transparency, Lord Taverne has promoted a Bill that would compel firms to print the difference between the pay of directors and that of the lowest 10% of earners.
01/05/09Reprieve for the 48-hour opt-outThe EU Parliament and EU Governments have decided not to abolish the opt-out clause that allows British companies to continue to ask employees to work more than an average 48-hour week.
Pat McFadden, employment relations minister, said that the Government had ‘refused to be pushed into a bad deal for Britain’ on changes in the Working Time Directive.
The CBI said that the decision was a ‘victory for common sense’ on the breakdown of talks in Brussels. The outcome means that people in the UK can still choose to opt out of the 48-hour working week, it emphasised.
John Cridland, CBI deputy director-general, said: ‘We welcome the retention of the opt-out, which we have been calling for in London and Brussels. It allows people to make their own decision about the hours they work.
Keeping the opt-out is a victory for common sense and is good for the UK economy.’
Other aspects of the Working Time Directive, such as maximum night shifts, minimum rest breaks and 28 days’ holiday, have no optout facility.
The Chartered Institute of Personnel & Development welcomed the Government’s hard fought victory. Mike Emmott, Employee Relations Adviser at the CIPD, said: ‘The British Government and its allies are to be congratulated for seeing off attempts to remove the opt-out.
Employers should review the need for working arrangements that require employers to work consistently long hours, which can have corrosive effects on their health, relationships and performance.
‘There is a strong business case for having healthy, happy and ultimately more productive and effective employees. But this doesn’t mean that employees who choose to work long hours should be prevented from doing so.’
But the TUC’s general secretary Brendan Barber commented that ‘another opportunity has been missed to end the UK’s dangerous long hours culture.’
01/05/09Doctor restraints on hours may liftThe Royal College of Surgeons is spearheading an initiative to free some doctors – mostly training surgeons – of the restraints laid down by the EU Working Time Directive on the number of hours a week they can work. It is supported by the Department of Health.
The Directive limiting working hours to just 48 per week comes into effect on 1 August, but doctors say student surgeons need to work around 65 hours a week if they are to qualify within set times.
Health minister Ann Keen said: ‘Most UK doctors in training already comply with the Working Time Directive, and the overwhelming majority will do so by 1 August this year. However, we have notified the European Commission that we intend to operate a derogation for a small number of services involved in delivering urgent and emergency patient care.
‘For unavoidable and specific reasons, this small number of services is unlikely to be able to fully implement the WTD by 1 August 2009.’
The Department of Health has asked the EU Commission’s permission to increase hours per week to 52 as of August.
The minister says that more working hours are necessary because some National Health Trusts find it difficult to recruit doctors, and other hospital services have problems because they are in the midst of changes. The medical profession is concerned about the health of patients if surgeons are not available.
In a recent survey of surgeon trainees, it emerged that 90% are exceeding their rostered hours per week, with 85% reported as coming in to do operations on their days off.
05/03/09Cabinet split on plans to extend maternity and employment rightsBusiness Secretary Lord Mandelson and Equalities Minister Harriet Harman are heading two factions within the Government – both opposed to each other – on extending maternity and other employment rights.
Lord Mandelson wants to save costs for businesses during the economic downturn by postponing the introduction of new rights, including those outlined in the recent Queen’s Speech.
A memo leaked to the press discusses advice on ‘a moratorium on legislation and legislative announcements made but not yet implemented that will entail additional costs for businesses’.
Ms Harman has strongly supported enhanced rights for women and carers, and in using the legislative route for this. Although she appears junior to Lord Mandelson in Cabinet status, she is Deputy Leader of the Labour Party and a probable future candidate for leader.
Labour is likely to be deeply split on the question of extending employment rights in the run-up to the General Election. The rival camps will lobby hard over the contents of the election manifesto.
A close ally of Ms Harman told The Times that the leaked memo revealed a ‘deepening ideological divide’ within Labour over its reaction to the economic downturn.
Traditional Labour supporters argue that their interests should not be hampered because of mistakes made by the banks in the run-up to the economic recession.
Sources close to Lord Mandelson have said that proposals to enhance maternity leave were ‘almost certain to be scrapped’.
05/03/09Multiple age discrimination claims over old jobseekersThere is a new trend for job applicants simultaneously filing multiple claims against employers for age discrimination, according to the law firm EMW Picton Howell.
In a case recently won by employers at an employment tribunal, Margaret Keane, aged 50, had multiple age discrimination claims launched against different companies.
She had unsuccessfully applied for a number of roles, all of which had asked for a particular level of experience in the advertisements. She is known to have launched similar unsuccessful claims through another employment tribunal.
EMW Picton Howell says that these blanket claims are made after the complainant sends their CV, containing their age, in response to job advertisements for which they feel they are qualified. Claims are then launched if the complainant is not invited for an interview.
‘These kinds of multiple claims can be worthwhile as employers sometimes decide it will just be cheaper to pay off the claimant to get rid of the claim. It’s like entering a lot of competitions, the more you enter, the better the odds that you’ll win,’ said Jon Taylor, head of employment at EMW Picton Howell.
But he said that some organisations leave themselves open to complaints of age discrimination, more than two years after the rules came into force. ‘Many employers and recruitment agencies are still using phrases such as “newly qualified” in job advertisements despite warnings about the consequences of doing so.’
Milton Keynes Council has been found guilty of indirect age discrimination advertising.
02/01/09Flex requests extendedThe right to request time for training and flexible working is to be given for parents with older children, extending the current right for those with children aged under six or those with disabilities.
The announcement was confirmed by the Government in last month’s Queen’s speech, and comes despite reports that the Secretary of State for Business, Enterprise and Regulatory Reform, Lord Mandelson wanted to postpone the new rights.
Few details have been published. The speech only included the words: ‘The Government promises to bring forward proposals to help people achieve a better balance between work and family life’. It is likely that those with children aged up to 16 will be covered.
An employer can refuse a flexible working request for business reasons. But last year an employee won a case against a firm that refused more flexible hours, though this was under disability discrimination laws ( Payroll World, November 2008, page 15).
02/01/09End of opt-out loomsThe UK opt-out from the 48-hour working week may be scrapped after a vote in the European Parliament. The MEPs voted by 421 to 273 to abolish concession. The optout currently allows people to voluntarily work more than 48 hours a week. ‘Nobody should be made to work more than 48 hours a week. But many people want to work longer hours,’ said John Cridland, deputy director-general of the Confederation of British Industry (CBI).
‘At the moment they have the right to opt out of the maximum working week. We think people can make this decision for them and don’t need MEPs to make it for themselves.’
According to Government figures, more than 10% of those employed work more than 48 hours a week.
Cridland has also rejected the idea of an 48 hour week averaged over a year and says that it could harm companies fighting for survival.
The move has also been criticised by Pat McFadden, Minister for Employment Relations, who said that imposing a maximum working week would be a mistake and prevent people from earning more money.
The UK’s opt-out provisions apply to the 48-hour working week element only. Other aspects of the Working Time Directive, covering rest breaks, night shifts and holidays, are compulsory.
02/01/09Improved maternity benefits plannedThe European Commission is planning to give mothers longer full maternity pay. It is also considering banning women from returning to work within six weeks of giving birth.
Under the plan, mothers will have the right to 18 weeks leave on full pay and cannot go back to work for six weeks after they have had their babies.
Women could also decide whether to take the non-compulsory part of their maternity leave and could take the time off when pregnant.
02/12/2008Employment Act is passedThe Employment Act to reform dispute procedures has reached Royal Assent. It has replaced a statutory formal process with a Code of Practice. The most significant reform is to end the rule that an employer failing to follow statutory disciplinary procedures when sacking someone is automatically deemed to have unfairly dismissed the individual.
The Act amends Regulations passed in 2002, which came into force in 2004. They were intended to keep disputes out of the tribunals by setting out procedures in which an employee with a grievance had to exhaust internal processes. It also set out a three-stage process that employers had to follow when disciplining staff.
A review of the law, commissioned by the then Department of Trade & Industry and carried out by Michael Gibbons, was published in March last year. It concluded that: ‘Rather than encouraging early resolution, the procedures have led to the use of formal processes to deal with problems which could have been resolved informally. This means that problems escalate.’
Layla Bunni, employment lawyer at Starr Partners, said ‘employers should still follow the statutory code.
‘This will prevent any risk of an upward adjustment if the dismissal is challenged and found to be unfair, but it will also aid the employer in being able to justify and record the actions it took prior to taking disciplinary action.’
02/12/2008Mandelson faces flexi-working backlashPlans to allow the parents of older children to request flexible working may be delayed, provoking concern from campaigners.
Lord Mandelson, the Secretary of State for Business, Enterprise & Regulatory Reform, has ordered his department ‘to be completely focused on getting UK business through the present economic downturn’, according to a document leaked to the press.
He may delay the plan to extend the right to flexitime from parents of children under six to all parents with children up to the age of 16.
But the proposal ‘risks doing more harm than good to UK competitiveness’, said Jackie Orme, chief executive of the Chartered Institute of Personnel & Development.
‘These reports send out the wrong message. They assume that flexible working is a burden on business – the kind of charitable extra that can be cut back in tough times.
‘Flexible working can deliver competitive advantage by improving employee engagement and attracting talented people to organisations that might otherwise remain outside the workforce,’ said Ms Orme.
‘The existing right to request flexible working is a model example of lighttouch regulation that has helped to change attitudes without causing difficulties for businesses.
‘Our research shows that part-time and flexible workers are happier, more engaged with their work, and therefore more likely to perform better and be more productive,‘ she said.
03/11/08Heyday challenge over retirement age goes onAge Concern and the pressure group Heyday have insisted their legal challenge against the UK Government on mandatory retirement ages still has a chance of succeeding.
In September the Advocate General of the European Court of Justice ruled against Heyday’s case, asserting the right of national Governments to impose a retirement age.
But he also confirmed that the Directive requires the national default retirement age to be justified in the British courts, campaigners pointed out.
The next stage is for the European Court of Justice to publish its judgment – which is expected to confirm the Advocate General’s view. After this, the case will return to London, where the High Court will look at all the evidence and decide whether the national default retirement age can be justified.
‘This means that the case is far from over,’ a statement by Age Concern and Heyday said. ‘The UK Government will have to make a case to the High Court as to why its social policy or employment policy objectives make a national default retirement age necessary.’
Despite Europe’s ageing population, the Advocate General’s opinion also implied that ageism is less significant than other forms of discrimination, leaving workers open to direct discrimination in the workplace because of their age, campaigners said.
Ailsa Ogilvie, Director of Heyday, said: ‘We still have a strong case and we will fight on for the millions of older workers in the UK.’
03/11/08Helicopter grounded over working hoursA rescue helicopter at Shetland Coastguards was grounded for several hours on one day last month, over a dispute concerning working hours.
The Maritime & Coastguard Agency said the dispute concerned interpretations over the maximum 2,000-hour annual flying time allowed for civilian pilots – specifically, whether non-flying time on duty should count towards the pilots’ working hours’ limit.
A Maritime & Coastguard Agency spokesman told Payroll Worldthe crews had been concerned that a future employer might have a dim view of a pilot in breach of the 2,000 mile limit, and had assumed that all hours on location would count.
He added that the Agency would like to establish a principle of 50% of time counting towards flying hours.
‘We would like to secure a lawful amendment, and we want to formalise the 50%. We’re working with the Department of Transport to make sure that that change occurs.’
Any law or guidance would have to be compliant with the European Working Time Directive.
03/11/08Works councils to be toughened up by EUEmployee representatives are set to gain stronger rights to consultation following planned revision to European Works Councils.
The Department for Business Enterprise and Regulatory Reform (BERR) has been forced into a rushed consultation period from 9 September to 6 October.
Reforms follow a planned review at European level of the legislation, and the ‘social partners’ – European employer and trade union groups – reached a joint position at the end of August.
The French presidency and the European Commission are seeking approval from member states and the European Parliament by December.
BERR has published a 78- page consultation document. Some of the proposed changes are:
A more demanding definition of information and consultation, including requirements of timeliness and quality. ‘It provides more room for disputes over the content and timing of the process,’ said employment law firm Eversheds.
A new obligation to inform international trade union bodies, and employers’ organisations, at the start of negotiations for a works council to be created.
A right for representatives to be provided with training without loss of wages.
Rob Don, senior policy adviser at the CBI, said that the slowing down of decision making can affect members.
He said the experience of works councils has been mixed. ‘Some companies have found them to be useful sounding boards, but they can be expensive. It can also be the case that employees do not engage with them.’
http://www.berr.gov.uk/files/file47617.pdf
01/10/08Selina Scott tackles age biasFormer ITN presenter Selina Scott has taken Channel Five to the Employment Tribunal claiming age discrimination.
Five’s director of programmes Ben Gale was also named as a defendant for the four-day public hearing.
Ms Scott, who is 57, is represented by defamation expert Simon Smith of Schillings. She claimed that she was asked to fill in for 35-year old Natasha Kaplinsky as the latter took maternity leave in 2008.
The offer, reportedly worth £200,000, was allegedly cancelled when new director of programmes Ben Gale arrived at Channel Five in April 2008. Citing a need to promote internally for continuity and to build Five’s own talent, he hired Isla Traquair, 28, and Matt Barbet, 32. The Employment Equality (Age) Regulations were introduced in 2006. Legal experts opined that Scott had a case if she could prove ageism.
Matthew Tom of Keystone Law commented ‘Employers must remember that age discrimination works both ways, and that talented young staff could also make a claim if older colleagues are treated more favourably mainly on grounds of their seniority.
There are inevitable tensions and difficulties for employers and the need for objective assessments when considering appointments has never been greater.’
He said that Channel Five would have to be able to demonstrate ‘non-age related reasons’ such as ‘being a better newsreader’. Channel Five said it will ‘vigorously defend’ the case.
01/10/08Harman announces Equalities PanelMinister for Women and Equalities Harriet Harman has announced a National Equality Panel, aimed at assisting her campaign against all forms of discrimination – including in the workplace.
She told last month’s conference of the Trade Union Congress: ‘I am setting up the National Equality Panel, which will chart where we have made progress during the past 10 years, and where we need to make much more progress.’
London School of Economics professor John Hills will chair the new panel. Ms Harman said: ‘He will report to Government after 12 months, and then that will be able to lay the basis for even stepping further forward on the important work to tackle inequality and to bring forward social justice.’
The Equalities Bill (see page 9, August 2008) will bring in a range of new diversity rules if it is passed through Parliament – expected by early 2009.
Tribunals will be given power to recommend that organisations change their equality policies, while private firms bidding for state work will have to publish diversity statistics.
In his conference speech last month the Prime Minister Gordon Brown praised Ms Harman for her commitment to fairness, indicating a higher priority for anti-discrimination than under Tony Blair.
01/10/08EU ruling means compulsory retirement age can continueAn Advocate General’s opinion from the European Court of Justice has ruled against charity Age Concern’s ‘Heyday’ challenge to the UK’s compulsory retirement of employees aged 65.
Employers were reassured by the opinion, announced on 23 September, even though it is not binding. The European Court of Justice almost always follows the Advocate General’s opinion. It may adjudicate later in the year.
Sue Ashtiany, partner at law firm Nabarro commented: ‘Member states can have a national retirement age if this assists with employment policy. Individual employers can have age discriminatory schemes – for example, age related benefits – provided they are reasonably justifiable by reference to their business needs.
‘This result is at the further end of the possible outcomes and most in favour of the UK Government’s interpretation of the European Directive. The 260 or so people bringing retirement cases that have been “stayed” will be disheartened by this result. Employers and the UK Government will probably breathe a sigh of relief.’
Heyday is an offshoot of Age Concern. Its director Ailsa Olgive said that current rules were costing good workers their jobs. Recent macroeconomic data shows an increasingly ageing European population.
Catherine Pusey, Director of The Employers Forum on Age commented: ‘The fiscal reality is that the UK economy can no longer afford a culture of early retirement; many of us will have a third of our lives ahead of us as we collect our first pension cheque.
‘Enlightened employers have chosen not to use the default age and instead allow employees to retire when it suits them. This new flexibility has resulted in significant business benefits; filling skills gaps and keeping valuable members of their workforce.’
She added: ‘People have children later and at 65 they may still be putting children though university or paying off a mortgage.’
The Confederation of British Industry has argued that a normal retirement age of 65 is an essential management tool. But the EFA hopes to persuade the British Government to remove the retirement age altogether.
01/10/08Limits made clearer on justified age biasRecent tribunals suggest age discrimination can be justified with a legitimate business case, but only if it is strong enough to over-rule the discriminatory effects.
Ms MacCulloch, who was 37 years old, claimed to have suffered age discrimination due to the way Imperial Chemical Industries’ redundancy scheme was structured. The scheme was based on age and length of service but in a complex way.
Ms MacCulloch felt significantly disadvantaged by comparison to some older workers and those with longer service.
The original tribunal found that the discrimination was justified. Ms MacCulloch appealed and the Employment Appeal Tribunal upheld her case, on the grounds that while the tribunal had identified legitimate aims which the scheme was designed to achieve, there had been ‘no proper attempt to determine whether the means adopted were proportionate to those aims, having regard to the significant detriment suffered by the claimant.’
Ms MacCulloch’s case was remitted to the same tribunal to consider aspects of justification and proportionality.
In Loxley v BAe Land Systems, the employer’s voluntary redundancy scheme was found to be discriminatory.
At 61 Mr Loxley received no enhanced benefits on being made redundant because his company’s redundancy scheme was introduced when the compulsory age of retirement was 60. Even though this has now changed to 65, the scheme had not.
Once again an employment tribunal found the discrimination justified but had not looked at whether it was proportionate to exclude the claimant from any redundancy payment altogether because of his entitlement to a pension.
03/09/08Extended maternity leave proposal comes under fireA backlash against extended maternity leave has come from an unlikely combination of employers’ groups and prominent women’s rights campaigners.
Concern is growing that, with a maximum 52 weeks’ maternity leave, compared with just two weeks’ paternity leave – which is often not taken up – women’s prospects in the workplace will suffer and employers may be reluctant to employ women of child-bearing age.
Nicola Brewer, chief executive of the Equality and Human Rights Commission, said that an extension of maternity leave means mothers are ‘the parent who pays the career penalty for having a child’.
Rosie Boycott, feminist writer and co-founder of magazine Spare Rib,told The Guardian: ‘Fathers get two weeks of paternity leave versus mothers now getting 52. What does that tell you about who society thinks should be looking after the children?The mothers.’
John Cridland, the deputy director-general of the CBI business lobby group, was against further ‘prohibitively expensive’ changes to parental leave and called for a ‘cultural shift to encourage more fathers to take up their existing rights’.
What do you think? Should maternity or paternity leave be longer or shorter? Send your views to editorial@payrollworld.com
01/08/2008Age laws could see benefits slashedNew age discrimination laws could cause a slump in provision of health insurance as an employee benefit, experts have warned.
As part of the new Equality Bill announced by Harriet Harman, the Equalities Minister, older people are protected against discrimination in goods and services.
‘Something like health insurance is very much age related,’ said Norman Green, head of legislation at Logica and Payroll World columnist.
‘From the day we’re born we’re starting to wear out. ‘If they [the Government] take the opportunity away to restrict on age, then there is going to be a response in the market to ensure that the premiums meet the higher risk that providers have to take. Insurance is all about estimating risk, and ensuring that the premiums cover the likely event.’
Sue Ashtiany, partner at law firm Nabarro, said the Government’s proposal would have a ‘potentially enormous impact on insurance provided to employees as a benefit, particularly where life assurance is provided after the employee has retired early on the grounds of ill health.
‘Based on actuarial calculations, the provision of such insurance is invariably more expensive for older workers. If an employer is suddenly prohibited from limiting cover up to a particular age, or having to objectively justify ceasing cover at that age, it may discourage the employer from agreeing to offer such cover to any employees.’
This unintended consequence of the legislation could signal a more radical change to employee benefit provision than the retirement rules themselves, as it would extend through the whole workforce.
Employees are already protected against direct age discrimination in the workplace, although with exemptions on younger workers’ entitlement to different rates of the minimum wage.
01/08/2008Harman's law a bid for zero toleranceHarriet Harman, the Equalities Minister, has confirmed plans for a single Equality Bill, bringing together all the legislation on discrimination of the past 35 years. It would cover age, race, disability and gender orientation.
As expected, there will be a renewed push for equal pay in employment, though measures fall short of mandatory pay audits for all major employers, which Ms Harman is understood to have campaigned for within Government (News, May 2008).
Instead, firms will be required to be more open on pay, with ‘gagging clauses’ prohibited. The strategic objective of ministers is zero tolerance: to place discrimination on the grounds of age, disability, religion or sexual orientation on a par with race or sex discrimination, which are currently the most strongly defended rights in statute.
Some commentators have dubbed the bill a ‘grey charter’, protecting pensioners from being denied NHS treatment, credit cards, travel insurance or care hire because of their age, saying it could have a profound effect on employee benefits.
Although there will be new rights for employees, the Government hopes to also streamline and modernise legislation, which has grown up piecemeal over decades.
The Times’ legal editor, Frances Gibb, calculated that there are 35 Acts, 52 statutory instruments, 32 codes of practice and 16 EC directives that currently deal with equal rights in the UK. ‘It would take about two-and-a-half days and two nights to read all the documents,’ she said.
New statistics from the Equalities Office show that the pay gap between men and women at the Treasury, for instance, is 26% against a national average of 12% for full-time workers.
Recent years have seen significant increases in equal pay claims, especially in the public sector, as hundreds of thousands of women council employees seek parity with male workers doing similar level jobs. Some of the claims date back many years.
01/08/2008Union loses discrimination caseA trade union has lost a discrimination case brought by female local authority staff. The women, who are members of the GMB, claimed that the union had indirectly discriminated against them in the way in which it recommended them to settle equal pay claims against Middlesbrough Borough Council. They complained that the union did not tell the claimants how much compensation they were likely to recover if they were to pursue their claims through an Employment Tribunal.
In June 2006, the Employment Tribunal upheld claims brought by five test claimants, but a year later the Employment Appeals Tribunal reversed that ruling.
Now, however, the Court of Appeal reinstated the tribunal’s ruling. It acknowledged that the union did have a legitimate aim in mind when addressing the equal pay claims – protecting the existing pay of other staff – but said the actions were discriminatory.
The decision ‘paves the way for women who have settled equal pay claims on the advice of their union to recover compensation from the union itself’, the law firm Eversheds noted in a statement.
01/08/2008Test case challenges retirement at age 65British employers could be barred from imposing compulsory retirement at 65 if a landmark case succeeds.
The case, which began in the European Court of Justice on 2 July, has been taken by Heyday, a group linked to Age Concern.
Neil Churchill of Heyday said: ‘We are determined to challenge the existence and legality of forced retirement. This challenge is what people approaching retirement want; it’s good for business, good for the economy and good for society.’
Heyday said that 80% of baby boomers – those born between 1945 and 1960 – are opposed to a compulsory retirement age.
The current age discrimination rules allow compulsory retirement at 65, if a set procedure is followed.
But many older workers either want to continue working, or feel they have to owing to inadequate pension provision.
Yvonne Gallagher, head of employment at business law firm LG, said: ‘The UK legislation contains a number of exceptions which effectively undermine the position of older workers, such as the fact that workers who are within six months of age 65 or older are excluded from protection against discrimination in recruitment processes.’
She added: ‘The UK’s current implementation does not give older workers any rights to continue, only to ask and be considered - and this case will turn on what is being held as discrimination against older workers.’
Dorothy Henderson, a partner at leading City law firm Travers Smith, said that, if the case did succeed, it would ‘send shockwaves’ through UK business. She added: ‘It would also prove embarrassing to the UK Government, which would have to acknowledge that it wrongly interpreted the law.’
Numerous compensation claims by employees forced to retire have been put on hold pending the decision, but would be given the green light to go ahead if Heyday succeeds.
But Ms Gallagher pointed to a similar case involving an older worker in Spain, where the European Court approved similar exemptions to age discrimination rules introduced by the Spanish Government.
The Advocate General is due to publish his opinion on the case on 23 September.
Average life expectancy in the UK is 81 for women and 76 for men.
01/08/2008ECJ ruling strengthens flexible working rightsEmployers that turn down flexible working requests from staff who care for disabled relatives could face claims for discrimination, following a European Court of Justice ruling handed down last month.
In the case of Coleman v Attridge Law, Sharon Coleman, primary carer for her disabled son, claimed she had been discriminated against by her former employer because of his disability. The Court ruled that the Equal Treatment Framework Directive prohibits discrimination on the grounds of disability, and that Ms Coleman was affected, even though not disabled herself.
Jon Taylor, head of employment at emw law, said: ‘Previously, if [employers] acted inconsistently or unreasonably in denying a request [for flexible working], the worst they could potentially face was a constructive dismissal claim in which damages are capped. Now they could face a discrimination claim, with unlimited damages. It could make requests for flexible working from those caring for disabled relatives almost impossible to turn down.’
He added that the ruling could also mean that discrimination by association on the basis of age, which is not explicitly barred under UK legislation, is also prohibited.
01/08/2008Another u-turn gives new rightsThe Government has announced an about-turn by conceding new rights to agency staff, just six months after it blocked a European Union initiative on the issue.
Agency workers and other temporary staff will gain the same protection as other employees after 12 weeks’ service. Payroll Worldreported last month that it was considering the change.
At the end of last year Business Secretary John Hutton helped to block a similar European initiative, although a shorter qualifying period of six weeks was being discussed.
The UK law covers overtime rates and holidays, though occupational pensions and occupational sick pay will not be included.
Also, as reported last month, ministers have made a strong indication that pay audits will be introduced, at least in the public sector. The proposed Equality Bill will be committed to ‘making public bodies more transparent’, said the announcement, published by the Office of the Leader of the House of Commons. It added: ‘If inequality remains hidden, we can’t measure it and make progress.’
To complete a trio of major new rights for employees, working parents will gain the right to request flexible working for all children aged under 16 – up from age six under current law.
The announcements follow heavy pressure from trade unions, and may have been made at least in part because of the Labour Party’s needs for campaign funds from the unions. Controversy over donations from wealthy individuals has forced the party to bolster support from its traditional sources.
The CBI accepted the agency workers’ deal with obvious reluctance. John Cridland, CBI deputy director-general, said: ‘There has been a major risk of damaging legislation coming from Brussels, and the CBI has judged that the Government’s proposals represent the least worst outcome for British business.’
01/06/08Childcare voucher providers engage in price challengeThe childcare voucher system has been shaken up with the emergence of fierce price competition.
Kiddivouchers has begun offering vouchers for a fee of just 2.5% of the voucher’s face value with other providers offering them at 5% or 6%. The company is also proposing to allow parents to register themselves by web or phone rather than relying on HR departments and application forms and order them directly, with renewals done automatically. It promises that there is minimal involvement for the HR department, so ordering, distribution and record maintenance is done by the employee.
It offers to handle all salary sacrifice agreements to remove the burden from parents and employers, as well as distributing the vouchers directly to the parents.
Another company, Busy Bees, part of FPS Umbrella, is proposing to help temporary and contract workers with all administration carried out by the provider with weekly and monthly vouchers offered. In families where both parents work, both individuals can claim and discounts are available for voucher users in the Busy Bees Nursery Network and are available for both basic and higher rate taxpayers.
However Richard Bishop-Laggett, HR services and development director at ISS, questioned whether the price war was sustainable: ‘They [Kiddivouchers] are selling childcare vouchers at half the price of other companies.’
01/06/08Pay audits ‘by next April’The long awaited Equality Bill could be published by the end of April, and is set to include provisions for equal pay audits, and use of procurement by public sector bodies to promote equal pay practices in the private sector.
Audrey Williams, partner at law firm Eversheds, told the Payroll World Annual Update Conference on 10 April that deputy Labour leader and Justice Minister Harriet Harman is ‘pushing hard’ for much stronger regulations to reduce inequalities in pay.
‘She wants equal pay audits and reviews,’ said Ms Williams. There are also likely to be proposals around representative action, ‘making it easier to bring group claims’.
The Bill is likely to become law this year, in which case the changes could be in place as soon as April 2009, she added.
At the Women’s TUC conference in March, Ms Harman set out four principles for the Bill:
• Transparency – ‘So everyone can see where there’s progress and where there’s unfairness and work together to change it,’ she said,
• Looking at how public procurement can promote equality practice in the private sector,
• Tougher enforcement,
• Positive action.
She also said that, following Labour back-bench pressure, there is likely to be some form of new legislation boosting rights for agency workers. The UK Government has resisted pressure from the EU for more rights, but a deal is now close to being reached.
21/04/08Employer held liable for worker’s suicideAn employer has been held liable by the House of Lords for the suicide of one of its employee’s engineers after a long court battle. The ruling is likely to raise awareness of the psychiatric fall-out of personal injury claims, which the case shows is receiving greater sympathy from the legal system.
The case centred on the suicide of Thomas Corr working at IBC Vehicles, following a serious accident at work in 1996. On top of the physical injuries, Mr Corr began to suffer from post-traumatic stress disorder and depression, and six years later killed himself by jumping from the top of a multi-storey car park. He had no previous history of psychiatric problems, the court heard.
The case was brought by the Mr Corr’s wife and the judgement overturned two previous High Court and Court of Appeal decisions to reject the claim for financial losses.
A spokesman for the employer IBC said: ‘This case was clearly a tragedy. It was extremely complex and has taken a long time to come to a resolution. We will of course comply with the terms of the judgment of the House of Lords.’
Partner at Beachcroft law firm Alex Lock said: ‘If one suffers an injury at work, for example, like having a leg chopped off in the line of duty and you have a part-time sporting career, the employer will be liable,’ he said. ‘In this case … the principle of causality is the same.’
The trial judge, Mr Nigel Baker QC, concluded that the defendant, IBC could not foresee the exact type of psychiatric damage in fact suffered by the plaintiff. He added: ‘But that is of no significance since the defendant did owe a duty of care to prevent foreseeable damage, including psychiatric damage.’
02/04/08Employers adopt global approachNearly half of multinational firms in a major survey take a global approach to compensation. The study of 168 international employers by HR consultancy Mercer found that 45% of firms take an almost exclusively global approach to compensation, while 39% adopt a local approach and 16% a regional approach.
Darrell Cira, principal with Mercer in Philadelphia USA and a leader of the study, said that while global schemes for senior executives are well established, employers are now extending the approach to other employee populations. ‘The trend is changing rapidly, especially among US multinationals,’ he said. ‘As these employers continue to focus on facilitating talent mobility and reinforcing common organisational cultures and values over the next two years, they will need to globalise pay programmes for their management and professionals.’
According to Mercer’s survey, more than half of all participating companies have global strategies for managers; however, nearly a third more US companies have them than European ones. But he added that some employers are pushing ahead with globalised pay without full evaluation or planning. ‘US companies in particular seem to be pushing global programmes further down in the organisation without questioning the need or value to do so.’
Philip van Elsdingen, principal at Mercer in Amsterdam, and European leader of the study, said: ‘It’s clear that the biggest difference between US and European organisations with regard to global pay programmes is at the management level. ‘European companies are less likely than US companies to develop global strategies below the executive level because of a greater sensitivity to the potential barriers associated with implementing a common approach,’ he added.
The survey covered 168 companies based primarily in the United States and Europe,with an average of 20,000 employees and revenues of between $1bn (£500m) and $5bn (£2.5bn).
28/03/08A church organist is an employeeAn employment tribunal has ruled that a church organist is an employee of the Church of England and will have full employment rights. The landmark ruling concerns an organist and choirmaster who was dismissed and then brought a claim for unfair dismissal. But church authorities said he was not an employee.
The ruling means that, after a year’s service, organists in the Church of England may bring a claim for unfair dismissal against the vicar and the parochial church council if sacked without good reason.
Payroll World columnist Robert Leach, who is a church organist, appeared as an expert witness at the tribunal for the claimant, and has appeared on Radio 4, and in The Times discussing the issues involved.
During the tribunal, church authorities argued the organist was self-employed because he agreed to be paid gross without any deduction under the PAYE system. The judge said that the tax treatment of an individual is irrelevant in determining employment status.
Mr Leach told Payroll World:
‘It is estimated that about two-thirds of qualified organists are no longer prepared to accept an appointment in the church.
Problems working with vicars are one of the most quoted reasons.’
The case can now proceed to hearing the substantive issue of whether the dismissal was fair. The parochial church council has the right to appeal the verdict.
28/03/08Staff win an Israeli transferA trade union has won a key case preserving the rights of employees affected by a transfer of operations to outside the European Union.
The GMB union claimed that its members at Midlandsbased manufacturer Newell had rights to continued terms and conditions following sale of part of the business to the Israeli-based company Holis Metal Industries.
The ruling fell under the Transfer of Undertakings (Protection of Employment) rights, or TUPE, which is a European Union law, even though Israel lies outside the EU.
The High Court ruled that since the purpose of the European Union TUPE rules was to protect the rights of workers on a change of employer, those employees should be protected even if the transfer was to a non-EU country.
Newell sold part of its business to Holis in 2006. Newell’s factory in Tamworth employed 180 workers, 76 of whom were represented by the GMB trade union, which was recognised for collective bargaining purposes. The workers were informed that unless they wished to move to Israel they would be redundant following the transfer. None of them wanted to move, so Newell made them redundant. GMB brought a claim for failure to inform and consult, against both Newell and Holis under TUPE regulation 13.
05/03/08Annual appraisals: a wasteBritish workers think their annual appraisals are a waste of time because their bosses are not honest, according to a new survey. The YouGov poll revealed that workers do not trust their boss to be honest, or to take much notice of what had been discussed.
Nearly half of respondents did not believe that their bosses were honest during the process and another quarter of respondents said that they felt their managers saw such reviews as a ‘tick box’ exercise.
And just a fifth of those surveyed said they believed their manager would act on something that had arisen from the appraisal, while a similar proportion said their boss did follow up any concerns they had.
04/01/2008Stalemate over agency rightsBritish Ministers in Europe were among a number of member states who blocked legislation giving new employment rights to agency workers.
Business secretary John Hutton successfully drummed up support to block the proposed directive ahead of the vote last month. He said Britain was supported by other member states such as Germany and Malta who had also expressed concern. The legislation will not be discussed again until 2008.
Mr Hutton said: ‘This is a litmus test of Europe’s ability to balance the legitimate need for employment security, which we clearly accept, with the case for Europe to be as effective and competitive as it possibly can.’
Britain opposed the proposals, arguing it would damage the country’s flexible labour market. But unions say it is unfair that agency staff get less pay and fewer holidays.
The new EU directive would give temporary workers, such as those employed through agencies, similar rights to permanent staff.
Supporters believe it has made the economy more flexible, and the Confederation of British Industry has warned any changes to agency workers’ rights could cost a quarter of a million UK jobs.
04/01/2008£5k ceiling ended on pay floor claimsTougher penalties for rogue employers who refuse to pay the national minimum wage may be introduced following a Government crackdown.
Those who commit the worst cases of noncompliance or who are persistent offenders would be tried in a Crown Court and could face an unlimited maximum fine. In addition, inspectors will be given greater powers to assess financial information to check complaints from workers.
This ends the previous £5,000 ceiling on fines for the most serious offenders, though this limit remains in place for less serious cases, where a new automatic system comes into play. All employers caught paying less than the minimum wage would face a fixed penalty, to be set at half the total value of the arrears, subject to a minimum of £100 and a maximum of £5,000, which would be halved if paid within four weeks.
The proposals also give increased powers to the Employment Agency Standards Inspectorate and introduce unlimited fines for agencies which treat agency workers unfairly. They follow sharper ministerial rhetoric against rogue employers in the summer and autumn.
The way arrears are calculated will also change.
Back pay will be based on the current minimum wage, rather than the rate of the minimum wage when the offence took place.
The Government says it has helped more than 78,000 workers recover some £27m in unpaid wages since the minimum wage was introduced. Employment relations minister Pat McFadden said: ‘The minimum wage was a very important new right for people at work and we want to see it properly enforced.
‘Until now, employers would only face a penalty if they continued to underpay the minimum wage once caught. Now there will be a penalty for all employers found underpaying.’
On 1 October the standard adult rate rose from £5.35 to £5.52, and from £4.44 to £4.60 for 18 to 21-year-olds.
04/01/2008Woman who was 'too young' wins her caseA membership secretary of an exclusive London club has become the first person to win a discrimination claim for being told she was too young to do the job.
Megan Thomas claimed she had been dismissed by her employers at the Eight Members Club in the City of London because she was not old enough to deal with members of the club.
Tom Potbury, senior associate at law firm Pinsent Masons, warned that the ruling should not be seen as a landmark case: ‘A lot of the reports have missed the point – it is not a landmark ruling because Ms Thomas was awarded a default judgement after Eight Members Club failed to oppose her claim,’ he told Payroll World. However, he added that the case has been useful: ‘It serves as a helpful reminder that age discrimination legislation can protect younger workers.
‘We have, in the past, only heard how it protects older workers but it’s just as important that it serves younger workers too.’
The employer is considering appealing, but Mr Potbury said: ‘They will have a difficult job to succeed in their appeal.’ He said that any decision made at Employment Tribunals are not binding on other cases unless they go to the Employment Appeals Tribunal.
The case will therefore be of limited use to other people because it was not properly contested or evaluated in court, and because the defence failed to put a case together in time, which meant the Tribunal chairman did not have to give a reason for his decision.
Damages will be decided at a subsequent hearing, although experts speculated that Ms Thomas would receive a modest award, possibly less than £1,000.
Last month, Freshfields Bruckhaus Deringer won its case against a former partner, Mr Bloxham, who had accused the London law firm of age discrimination by using complicated pension reforms, including transitional arrangements (see Payroll World, November page 4, and page 20 of this issue).
30/11/07Turned down for being pregnantA woman who said she was turned down for a shop assistant’s job because she was expecting her second child has won her sex discrimination case.
The Employment Tribunal has awarded Caroline Tobin, from North Lanarkshire, £3,463 in compensation.
The Tribunal heard she had been looking for a part-time post at her local Spar store last October. She told store manager Abdul Majid that she wanted a part-time post because she was pregnant. Ms Tobin claimed Mr Majid’s demeanour changed when she informed him she was pregnant, and that he became annoyed.
Ms Tobin said Mr Majid said: ‘No, no, no, no – I have had experience of previous employees who were pregnant who refused to work and would refuse to bend, stretch or lift.’ She then walked out of the interview.
But Mr Majid denied discrimination and claimed the interview lasted about 20 minutes and at the end of it Ms Tobin advised him she was pregnant. The manager explained that it was important he knew about her pregnancy because he would be required to complete a form during the interview and would have to carry out a risk assessment.
He said he was dismayed as she had failed to disclose her condition in the section of her application form regarding health. However, the Tribunal ruled in favour of Ms Tobin and that Mr Majid had told Ms Tobin that he was not prepared to employ her when she told him she was pregnant. Her pregnancy was the reason why he did not want to employ her, the Tribunal found.
She was awarded £2,500 in compensation for injury to her feelings and a further £963 for loss of earnings.
30/11/07City law firm wins age discrimination caseAn employment tribunal has found in favour of law firm Freshfields in a case brought by a partner who claimed age discrimination.
Mr Bloxham’s case had alleged unfairness stemming from changes to the firm’s pension arrangements. The company had operated a generous ‘pay as you go’ pension scheme for partners which allowed retirement with consent from 50-54 and without consent from 55.
But the partners decided the scheme was unsustainable and must be replaced because younger partners would have to fund pensions for older generations without the expectation of a comparable pension themselves.
It was agreed that all partners aged over 50 would have until 31 October 2006 to retire on the old terms, based on accrual to 30 April 2006.
This would be subject to the usual reductions, which for someone retiring at 54 would be 20%. Members between 50 and 53 could defer drawing their pensions in order to reduce their discounts, which were between 25% and 40%. A new scheme came into force from 1 May 2006. Some retiring partners were to be offered consultancies.
In 2006 Mr Bloxham opted to take his pension with a 20% discount at age 54. He was declined a consultancy.
With age discrimination, employers can justify less favourable treatment as a ‘proportionate means of achieiving a legitimate aim’.
In a case concerning a Spanish worker, the European Court of Justice ruled that states can enforce mandatory retirement ages as long as they are justified.
31/10/07Fresh allegations for troubled pizza chainFresh allegations of staff exploitation continue at Domino’s pizza chain after BBC 2’s Newsnight featured Domino’s staff making claims of low pay.
Payslips shown to BBC’s Newsnight programme showed that one former employee of Domino’s in Wolverhampton ended up earning negative wages because of pay deductions.
The former employee told the programme that the money had been deducted from his wages to cover the cost of buying and insuring the car he was using to deliver pizzas – which the chain told him amounted to £1,700.
Another migrant worker claimed she was not paid for her first week of work, because the company designated it ‘unpaid training.’
In response, Domino’s deputy chief executive Chris Moore blamed HR paperwork for the problems: ‘The suggestion that these unproven allegations are representative of working life at Domino’s Pizza is absolutely untrue.
‘There is no evidence to suggest a widespread problem within our 12,000-strong team across the UK and Ireland.’
Mr Moore said that some franchisees did need to improve the clarity of their human resources paperwork and communication with employees.
‘To that end, considerable time has been invested in producing a comprehensive set of [guidance] documents which will be made available to all franchisees,’ he said.
The news follows allegations in August (see Payroll World August Ebulletin) that a Domino’s outlet in Derbyshire took £50 per week to cover some of their workers’ accommodation costs, leaving them with little or negative pay.
31/10/07Extra four days holidayFrom this month, UK workers are entitled to an extra four days’ holiday a year, under the Working Time Directive, bringing the total to 24 days. The eight days of bank holidays are being added to the four week minimum in a phased programme, with the other four days being added in April 2009.
01/10/07Facebook 'should be allowed'Employees should be able to access social networking websites such as Facebook during office hours, the TUC has said.
Management expert Max Mckeown told Payroll World: ‘Employers are disappointed in the lack of literacy among younger employees, but the very areas they are more literate in are banned.’
01/10/07Directors avoid hiring womenSome 22% of male company directors revealed in a survey that they would avoid hiring young women.
The survey for the Equal Opportunities Commission showed a fifth of male directors evade hiring women who are of child bearing age.
01/10/07Hutton pledges crack down on pay abusesA Government crackdown on employers who exploit vulnerable workers was promised by Business Secretary John Hutton at last month’s Trade Union Congress.
Employment agencies will face a legal crackdown to stop them exploiting workers, the punishment for which will be unlimited fines. The minister told the congress that he would double the number of inspectors in the Employment Agency Standards Inspectorate, and empower them with greater investigatory powers.
Ministers want to end the practice of forcing workers to pay for accommodation or transport – the practice of which is to be made illegal, Mr Hutton announced.
The announcement came amid speculation about a possible autumn general election, for which Labour will need considerable support from the unions. The move comes following a series of high profile cases where unions exposed abuses.
In August’s e-bulletin Payroll World reported that a Domino’s pizza franchise had been at the centre of allegations after eastern European workers claimed they had had wages unfairly deducted from their pay packet, leaving them with either negative pay or very little.
Mr Hutton also promised greater enforcement of the minimum wage, and a rise in the maximum fine for errant employers. He told delegates: ‘We must root out the rogues, whichever sector they are in, as we also act to protect jobs and flexibility in our labour market.’
Unions welcomed the announcement. Tony Woodley, joint general secretary of Unite, said: ‘We need rigorous enforcement of existing laws, making examples of the worst employers, who should go out of business or be sent to jail.’
But union leaders pressed Mr Hutton to support the European Agency Workers’ Directive, which calls for the same rights for temporary workers as permanent staff after six weeks of employment.
01/10/07Hand scanning to log hours angers staffA computer hand scanner to monitor the hours that staff work has been implemented on a trial basis at St George’s Hospital, south London. But there is concern among some members of staff who believe it will discourage professional behaviour.
Andrew O’Brien, chairman of the South Thames Junior Doctors Committee, said: ‘You can’t just stop treating patients and walk off – it’s not that type of job. We are not working in a factory.’
Known as the SMART system, it will aim to make sure staff are paid accurately and on time for the work they do. But some members of staff are unhappy about being required to clock in and out of work in order for the trust to monitor their hours.
In addition the trust may also face criticism about the price of the scanners, which will cost £93,000 to implement for the pilot scheme alone, according to the Local Guardian paper.
The paper also reported the hospital is £50m in the red. But the trust argues the cost of implementing the scanners will be off set by estimated savings of £500,000 a year. Mr Gentile, director of finance at the trust, told Payroll World: ‘We hope it will simplify our payroll process and avoid the complex paper trails which have caused problems in the past.’
But Mr O’ Brien claimed that it was bad news for patients: ‘They think they will save money but there is no concern about patient safety. It’s compromising patient care. The trust will find out that the majority of junior doctors actually do more hours than they are paid for. We don’t stay on and do the overtime out of choice.’
However, the trust insists that the new system is not being used to track staff but to cut out the bureaucracy that has caused payroll problems in the past.
A similar scheme at a Sunderland hospital was scrapped last year when managers discovered medical staff were in fact doing more hours overtime than they claimed for.
The trust will evaluate how effective the system is before considering an extension of its trial use.
30/08/2007High Court overturns stress caseAn employee had no claim for stress caused by his employer’s conduct of an investigation, the Court of Appeal has ruled. The court overturned an earlier decision by the High Court which found the employer, Bristol City Council, was legally responsible for stress suffered by the employee who had been under investigation for alleged sexual harassment.
The employee had worked at the council for over 30 years. Following allegations against him, the council commenced formal investigation procedures under its anti-harassment policy, which included appointing a two-person investigatory panel. Under the policy, the panel should have consisted of three members.
The panel’s findings were overturned after the employee complained about the composition of the panel and a letter was left on his desk advising him he would be reinvestigated.
The employee subsequently went off sick with workrelated stress and only returned to the office for a couple of days before leaving the post permanently due to depression.
The Court of Appeal found that constituting an investigatory panel of only two members did amount to a breach of contract, but the damage caused was ‘remote’. Leaving a letter on his desk was insensitive but not a breach of contract.
The court ruled that there was no evidence that the council was liable for the stress-related illness.
30/08/2007Is 'Gingerism' the new form of discrimination?A waitress has been awarded £17,618 compensation over taunts about her red hair.
Sarah Primmer of Plymouth suffered a series of lewd and embarrassing comments before she was sacked from a café in the city. Hannah Ford, lawyer in the employment team at Stevens & Bolton, explained that all strands of discrimination outlawed under the European Equal Treatment Framework Directive have now been implemented under UK law.
Referring to the Plymouth case, she told Payroll World: ‘The victim was subject to intolerable and intrusive questioning based on the colour of her hair, which may be deemed as a form of race discrimination. In this instance it wasn’t but was deemed unfair dismissal and sexual harassment.
‘There is a stigma that people with red hair are mocked and that this is OK. This case shows that it is not acceptable, and should be a warning,’ she added. ‘Under current employment legislation it may be possible to shoe-horn ‘gingerism’ in to a claim for indirect race discrimination, because the red hair gene is prevalent in northern and western Europe.’
A former BBC reporter Helen Reed brought a claim in a Bristol Employment Tribunal against her employer. She succeeded in her claim for unfair dismissal in 2002 after she alleged that she had been bullied because her boss had taken exception to her red hair.
Claiming that ‘gingerism’ is a form of racism may seem far fetched but Paul Maloney, a senior organiser at the GMB told Payroll World: ‘Any form of discrimination should always be taken seriously. ‘There are not sufficient teeth in the law to stop this kind of discrimination taking place,’ he added.
‘Many businesses are prepared to take a chance, and employment tribunal compensation like the one in the Plymouth case is not a sufficient deterrent.’
30/07/07New body for vulnerable workersA new Vulnerable Worker Enforcement Forum has been set up to crack down on abuses of workplace rights. Evidence gathered by the enforcement bodies suggests that workers in hotels and restaurants face the highest risks, followed by healthcare, retail and construction.
30/07/07Polish workers’ victoryA group of eight Polish workers have won an employment tribunal case against Shropshire-based employment agency the Consistent Group. The men claimed the agency had deducted a total of £451.20 from their wages each week for the maintenance of their rooms. The tribunal ruled that the agency was effectively their employer, and that they were unfairly dismissed after joining a trade union.
30/07/07Agency workers lose SSPThe Court of Appeal has ruled with earlier decisions of the General Commissioners and the High Court that agency workers should be excluded from entitlement to Statutory Sick Pay. If they have less than three months’ continuous employment they will not be entitled to claim it.
30/07/07Employers would hire ex-offendersThree-quarters of organisations would consider employing exoffenders if they had the relevant skills, according to research by the Chartered Institute of Personnel & Development (CIPD).
Given the right information and support, 60% of organisations surveyed would consider offering jobs to offenders under license or supervision.
The statistics have led the CIPD to call for the Government to show its support for the research. A spokesperson for the CIPD told Payroll World:‘Training provision in prisons is patchy and offenders are frequently moved between them which seriously reduce rehabilitation prospects for offenders.
‘For training to be successful in leading to jobs, its availability needs to be consistent across all prisons so that offenders can continue learning regardless of their location,’ she added.
CIPD diversity adviser Dianah Worman OBE, who worked on the research, said: ‘Ex-offenders are a largely unused pool of talent.’ The report indicated that employers are more likely to offer jobs to exoffenders who have gone straight for at least two years. For sensitive posts such as those in payroll with security clearance, however, a fraud conviction would generally rule someone out.
30/07/07Smoking room sees its last puffAs this issue of Payroll World goes to press every workplace in England will have fallen into line with the rest of the UK by instituting a nosmoking policy.
Employers that have not prepared for the introduction of the ban on 1 July are at risk of being fined.
Shadow local government minister Eric Pickles accused Labour ministers of introducing heavy handed ‘Stasi State’ methods. He said: ‘Experience from abroad shows that smoking bans are largely self-enforcing. I am concerned that Labour ministers are giving the goahead to a snoopers’ charter of heavy-handed surveillance.’
The smoking ban has forced employers to focus on the health of their employees, according to a survey by Manpower. Some 53% of respondents said the law had made them more aware of employees’ health.
However, the survey of more than 1,800 UK employers found that only 20% of employers were providing advice on how to quit smoking.
And research carried out by Nuffield Proactive Health revealed that 63% of employers feel that employees who smoke do not present a good company image.
From 1 July offices and public places will be smokefree by law.
03/07/07Government increases holidayMinisters have reminded employers and employees that there will be an extra eight days annual leave a year from 2009. There will be an increase in the minimum holiday entitlement from 20 days a year to 24 this October, and rising again to 28 days from April 2009.
The measure marks the end of a provision in which employers had been able to include bank holidays as part of the entitlement to four weeks’ holiday a year under the EU’s Working Time Directive.
It is thought that the legislation will affect up to 3.5 million women and 2.5 million men, including parttime workers, who will gain extra holidays on a pro-rata basis.
Jim Fitzpatrick, the employment relations minister, said: ‘Extra time off will make a real difference in the lives of hard-working people – giving them a proper rest and more time to spend with their families and friends.
‘Businesses will benefit too – from reduced absenteeism and a workforce who are more motivated and productive,’ he added.
03/07/07Potential of over-65s is ignoredThree quarters of Britain’s small firms have failed to put in place procedures to allow their employees to carry on working beyond the age of 65, according to research.
The study, conducted by Lloyds TSB and the SERT Team at the Open University, also found only a quarter of firms had put in place the ‘right to request rules’ which make it possible for employees to work beyond retirement age.
Two fifths of those surveyed said their reluctance to implement the rules, introduced in October 2006, was due to a fear that it would create more red tape, and 21% worried that costs would rise.
In addition, 7% admitted that they would be inclined to deny requests from employees who wished to work beyond the age of 65.
Most surveys recognised that the skills of older workers are equal to, if not better than, those of their younger colleagues. The research revealed that most business owners believe that older employees have a slight edge over younger workers. Their commitment to business goals, loyalty, diplomacy, reliability and punctuality was considered to be far better than their younger colleagues.
IT was the only skill in which younger workers were seen as markedly stronger.
03/07/07Teacher loses landmark maternity caseA woman teacher has failed in her bid to be reinstated as the teacher of a particular class following a return from maternity leave.
In a landmark ruling on testing the definition of entitlement to return to a particular post after maternity, Mrs Blundell lost her case against St Andrew’s Catholic Primary School.
The Employment Appeal Tribunal ruled last month that she was employed as a teacher, and was not contractually assigned to a particular class.
The tribunal also stated that the school customarily required teachers to changes classes every two years, and that her place of work was the school, not a specific classroom.
01/06/2007Business travel a benefit not a choreUK employees spend an increasing amount of time away from home due to a growing number of business trips and excessive working hours, but only a few find it stressful. Research by Barclaycard Business reveals that one in seven employees spend between five and ten nights away from home every month on business and more than a third report typical working days of between 11 and 16 hours.
‘Travelling for business offers opportunities to see new places and experience different working cultures,’ said Denise Leleux, director of commercial cards, Barclaycard Business. ‘However, it is important to ensure that travelling does not impact negatively on employees’ well-being.’
The research also found that business travel is increasing, with 44% of respondents travelling more than last year.
There are things that employers can do to help, taking the burden off the employee ensuring that the experience is a positive one.
‘Organising bookings, checkins and accommodation in advance can help ensure that travel remains a perk not a burden for employees,’ said Ms Leleux.
Despite these figures, nearly three quarters (72%) of employees enjoy business travel and combine business with pleasure.
Summary: • 72% enjoy travelling for business,
• One in seven business people spend between five and ten nights away from home every month,
• Only one in eight find business travel stressful.
01/06/2007Mothers are 'not informed' of changes to maternityMany mothers are unaware of changes to their maternity rights which came into force on 6 April 2007, according to a survey by the Institute of Payroll Professionals.
A survey of 1,500 women found nearly three-quarters of them didn’t know that maternity laws, such as the extension of maternity pay from six to nine months, were changing last month. For those aware of the legislative changes, 42% agree the changes would be beneficial to both female employees and their employers because it gives them more freedom and encourages them to get back to work.
Statutory Maternity Pay has increased to 39 weeks from last month including six weeks at 90% of pay and 33 weeks at the flat rate of £112.75.
The research found that 77% of 18-24 year olds and 63% of 25-34 year olds were unaware that maternity leave was changing last month.
The IPP said that the results sent out a clear warning to employers. ‘Employers do have an obligation to ensure that their employees are aware of the legislative changes,’ said a spokeswoman.
‘These maternity changes could be used as a retention tool. I know that smaller organisations are busy running their business but if they do not have an employment adviser then your first port of call will be HMRC.’
The institute criticised the Government for failing to promote the maternity changes to the general public in a similar way to their TV campaign for tax credits. ‘There has been nothing about maternity changes. They could have gotten a huge amount of brownie points if they had.’
01/05/07UK workers want green benefitsUK workers want their employers to provide them with more ‘green’ benefits, according to a survey by Ceridian, the HR Services provider.
Of the 1,000 employees surveyed who all worked in the private sector, nearly a third of those aged 16-24 would consider changing jobs for a greener benefits package.
01/05/07Changes for working familiesChanges to maternity provisions will take place for babies due on or after the 1 April 2007, as part of the Work and Families Act 2006.
Statutory Maternity Pay, Statutory Paternity Pay and Maternity Allowance will be extended to nine months from the 1 April 2007. The change-over period with mothers on old and new periods simultaneously lasts a year (see December 2006, page 8). www.dti.gov.uk/employment/workandfamilies/index.html
02/04/07SMEs back flexible workingUK small businesses are backing calls from the Children’s Minister Beverley Hughes to extend flexible working rights to all staff.
A third of 276 firms surveyed in the Orange Business Jury poll believe extending flexible working would be positive for the bottom line, while a quarter feel it would have little impact. Just under a quarter said the policy would be bad for business.
02/04/07Flexible working for allThe Industry of Payroll Professionals (IPP) has given lukewarm support to a Government minister’s call for workers without children to get the same right to request flexible working hours as parents.
Maurice Cheng, the IPP’s chief executive urged caution: ‘We have to be mindful of the current burdens on employers, as they have a mountain of legislation to adhere to as a matter of course.’ Mr Cheng added that the Government would have to consult employers if flexible working for all workers was going to be put firmly on the agenda.
Children’s Minister, Beverley Hughes said the move would help all UK workers balance their home and work lives better. Her comments come in a book which will be published in May to mark 10 years since Labour’s 1997 election win.
28/02/2007Call for end to new workplace lawsThere is no need for more employment laws to improve prospects for employees, a report by the Warwick Business School has concluded.
‘Justice is not about new laws, but making existing laws meaningful in practice,’ said Professor Paul Edwards, of the school’s Industrial Relations Research Unit.
Reforms introduced since 1997 giving more rights for workers have failed to reach their full potential, he argued. Little will change until employers are made to realise the economic and organisational benefits that can result from them.
He proposed some reforms, which would not be imposed on employers, but would encourage them to share successful working practices. These include offering more advice through consultants, providing support for local company networks, and sector-level employment forums on issues such as teamwork, skills and training.
He said: ‘These reforms may sound modest, but what they are trying to do is to develop practical, voluntary arrangements that are needed to improve justice, ensure existing employment law is effective and to help employers.’
01/02/2007Compulsory tea breakParamedics forced to complete meal breaks before responding to emergency calls, under an interpretation of a European Working Time Directive ruling, have branded the change as ‘madness’.
John Durkin, GMB branch secretary for Yorkshire Ambulance Service, said that the professionalism of the ambulance staff would outweigh the ruling, but warned that the changes would have a knock-on effect on patient care.
01/02/2007TUC calls 'work your proper hours' dayThe TUC has called 23 February ‘Work your proper hours’ day. It has calculated that employees in the UK are contributing £23bn worth of unpaid overtime a year.
If those who work unpaid overtime did all their unpaid work at the start of the year, the first day they would get paid would be Friday, 23 February, the TUC said. Employees in the UK who do unpaid overtime do an average of seven hours six minutes extra work a week, and would take home an extra £4,800 a year if they were paid the average wage for those unpaid hours, according to an analysis of official statistics published by the TUC last month.
It is calling on employees to remind bosses on 23 February to take a proper lunch break and go home on time.
‘Employers should also use the day to say thank you to staff for their unpaid work, perhaps by buying them lunch or an after-work coffee or cocktail,’ the TUC said.
01/02/2007Ministers begin review of dispute resolutionsEmployer bodies have welcomed the government’s decision to conduct a root and branch review of the employment dispute resolution system.
Alistair Darling, the Secretary of State for the Department of Trade and Industry (DTI) has appointed Michael Gibbons, a member of the DTI’s ministerial challenge panel, to review options for simplifying and improving all aspects of employment dispute resolution.
The current system was set up just over two years ago, with the aim of reducing tribunal cases, but take-up has been low.
Mr Gibbon’s review will look at all aspects of the system, including the current legal requirements, how employment tribunals work and the scope for new initiatives to help resolve disputes at an earlier stage.
Recommendations will be made to the Secretary of State in spring 2007. Mr Gibbons will also chair a panel advising on other aspects of the wider employment laws implification review which the DTI is carrying out.
Ben Willmott, employee relations adviser at the Chartered Institute of Personnel & Development, welcomed the Government review. ‘Our research shows that many employers find them complex to use and that in many instances workplace conflict is now less likely to be resolved informally.’ He called for reforms to the dispute resolution procedure to be accompanied by a far greater focus on promoting the good people management practices that will improve UK productivity and competitiveness.
John Cridland, Deputy Director-General of the CBI, also backed the review. ‘It’s still not working two years on from the last attempt to improve it. Employers lack faith in the system – with firms seeing tribunals as too adversarial and costly– and many prefer just to settle claims, even when they are advised they can win.’
The Employment Act 2002(Dispute Resolution) Regulations come into force on 1 October 2004.
04/01/2007Dads get additional paternity leave in 2008Fathers will be able to be absent from work for a maximum of 26 weeks (before the child’s first birthday) once the mother has returned to work, under provisions announced by the Government in response to Work and Families Act.
The details of government consultation on Additional Paternity Leave and pay are likely to come into force in 2008 at the earliest.
The Government’s intention is to bring in Additional Paternity Leave alongside the extension of Statutory Maternity Pay, Statutory Adoption Pay and Maternity Allowance to 52 weeks at the end of this Parliament.
The Government has also decided that the calculation period for and rate of Additional Statutory Paternity Pay(ASPP) should mirror that for SMP – so pay will be based on average weekly earnings in the eight weeks up to and including the week immediately preceding the 14th week before the expected week of childbirth.
The Institute of Payroll Professionals (IPP) welcomed the Government’s response. ‘I believe that this shows a true commitment by the government to listen,’ said Karen Thomson, head of IPP policy and research.‘The Government has ensured that the burden on the employer will be kept to a minimum by mirroring existing regulations where possible.’
04/01/2007'Rocky marriage' in the workplaceRelationships between employers and employees in many British workplaces resemble a marriage under stress, leading to underperformance, low productivity and high levels of staff turnover, according to a survey by the Chartered Institute of Personnel and Development(CIPD).
The Working Life: Employee Attitudes and Engagement 2006 survey of 2,000 UK employees found that one-third of employees said they rarely or never get feedback on their performance, with 42% of employees feeling ill-informed about what is going on in their organisation.
One-quarter of employees are rarely or never made to feel their work counts and just over a third of employees say directors and senior managers treat them with respect.
‘Many employees feel like neglected spouses. As in any marriage, good relationships need work and commitment’ said Mike Emmott, CIPD employee relations adviser.
04/01/2007Top priority is good pay Good pay topped work-life balance in Payroll World’s recent website poll. Readers displayed a range of preferences in response to the question: ‘What is most important to you at work?’
Although pay topped the list, it was cited by just one third of respondents, with the proportion citing ‘work-life balance’ a little under a quarter, and ‘interesting job content’ one fifth. The items on the list correspond to the range of features employees across different cultures, generations and gender consistently find important in the workplace, according to studies by Sibson Consulting in the US and the Hay Group.
Payroll World online survey results
•34.1% – Good pay
•23.3% – Work-life balance
•20.9% – Interesting job content
•8.5% – Career prospects
•7.8% – Friendly atmosphere
•5.4% – Learning/training opportunities
05/12/06Ministers get work rights Ministers of religion now have the legal right to claim unfair dismissal, according to the Employment Appeals Tribunal.
The announcement was welcomed by the union Amicus, which has campaigned for 12 years for employment rights for ministers of religion. Chair of Amicus Faith Workers Branch, Reverend Dr Gerry Barlow said: ‘The announcement by the EAT means that a new level of fairness has been given to all ministers. As a result of this we will use our expertise to help all churches and other faith bodies to develop their policies.
Amicus will also continue to promote reconciliation between the parties. ’Amicus represents 2,500 faith workers across all denominations and faiths.
05/12/06Opt-out remains under threatThe UK’s opt-out clause from the 48-hour working week remains, after talks collapsed earlier this month. But EU officials insist that the move to end the opt-out will continue.
In a counter-attack, the Trade & Industry Secretary Alistair Darling, called on the European Commission to sort out working time law. He told the Financial Times that the recent ruling including on-call hours work, even where individuals were on-site but sleeping, was unenforceable, particularly in Europe’s hospitals.‘There just aren’t the doctors and nurses in Europe,’ he said. ‘This is a real problem.’
Matthew Knowles, spokesman for the Federation of Small Businesses, said ‘the collapse of discussions on 7 November may be bad for relations between EU member states but for UK small businesses this is great news. Small business owners will be breathing a sigh of relief.’
But Brendan Barber, general secretary of the TUC, said ’48 hours is too long for anyone’, and called for an end to the opt-out.
21/11/06Employer wins bonus test caseThe Court of Appeal has backed an employer over the level of discretion on awarding bonuses. Commerzbank won its case against former employee Mr Keen on two key issues.
Firstly, the Court dismissed the claim that Mr Keen had bonuses unfairly withheld as it fell below the recommendation from his line manager. The court held that the employer retains considerable discretion in such matters, and that a claimant would have to establish that the payment was below that which any ‘rational bank in the City’ would have paid’.
Mr Keen also lost on the second point, in which he tried to establish that his bonus clause amounted to a breach of Section 3 of the Unfair Contract Terms Act 1977. The court ruled that this section was primarily for consumers, and that Mr Keen’s claim was not covered by its provisions.
21/11/06Tories back flex-workConservatives are heading for a potential confrontation with business after proposing that the right to request flexible working be extended to all parents.
In last month’s party conference, David Cameron, the Conservative leader, suggested that the existing right of parents with children under six years old to request family friendly working hours should be extended to parents of older children.
Business groups such as the Confederation of British Industry are nervous about extending the right to request flexible working, fearing the extra administrative burdens it will entail, especially for small companies. ‘We think that the right to request flexible working has worked well and we’re not opposed to it, but there are certain caveats. We think that when the right to request is extended to carers in April, that the Government needs to do a full assessment of its impact,’ a CBI spokesperson told Payroll World.
However, the Chartered Institute of Personnel and Development supported Mr Cameron. ‘We believe that the right to request should be extended to all employees,’ said Rebecca Clake, adviser resourcing for the CIPD. ‘I think we should encourage employers to be more flexible but feel strongly that it shouldn’t be at the expense of the business.
It’s important to make the point of retaining and attracting the best people and that means thinking about what kinds of benefits you can offer.’
Last month, in his first speech to a Conservative conference as shadow chancellor, George Osborne challenged party traditionalists who put tax cuts above support for childcare or family life.
The Conservatives are also looking at creating a transferable tax allowance worth about £2,000, which parents who stay at home can pass to their working partner. The tax allowance is being considered by the Tax Reform Commission, launched by George Osborne in October last year.
Kate Upcraft, consultant at ISIS support services, said that a new tax allowance would create minimal disruption for employers. ‘If it’s a tax allowance it will be administered by HMRC just like the married man’s allowance was, and for employers simply results in amended tax codes, so it’s not a burden on employers.’
31/10/06Sixty-hour week, no opt-outAn absolute maximum of 60 hours in the statutorily permitted working week is a possible feature of reformed EU law as Britain campaigns to retain the optout on the 48-hour ceiling.
A plan featuring the compromise was drawn up by the Finnish Government and presented to other heads of government last month. European Union prime ministers are considering an amendment that would remove from the calculation hours spent asleep, on call by doctors, which has been costly for health services in the continent.
Fears have also been aired by offshore operations employers.
31/10/06‘Kill bill’ at committee stageThe Corporate Manslaughter and Corporate Homicide Bill passed its Second Reading in the House of Commons last month, and is progressing to Committee Stage.
Neil Budworth, president of the Institution of Occupational Safety and Health, said: ‘We believe that a corporate manslaughter charge is essential to improve corporate accountability and health and safety standards.
‘Only the negligence of the corporate body as a whole has to be proven, rather than the current situation where a single senior individual’s negligence has to be proven, which is incredibly difficult in large companies.’
31/10/06Smokers out, urges TUCEmployers should ban smoking in the workplace before the legislation comes into force next summer, warned the TUC. From summer 2007, all workplaces in England, with a few minor exceptions, must be smoke-free or employers will face prosecution.
In a recently published guide, the TUC says employers should be sitting down now with employees to work out the most sensible ways of implementing the new smoke-free regulations.
In ‘Negotiating smoke-free workplaces’, the TUC advocates that every workplace should have a smoking policy – drawn up in consultation with staff – that protects smokers from persecution and offers them help giving up.
31/10/06Hours law threatens oilThe European Working Time Directive presents a threat to Britain’s North Sea oil and gas industry, according to Malcolm Webb, chief executive for UK Offshore Operators Association.
In a letter to the FT dated 28 September, he wrote: ‘If this ruling were applied to people working (and sleeping) on the production platforms and rigs in the North Sea then we would need to move from the traditional “two weeks on, two weeks off” rota to an “eight days on, 20 days off” regime.
‘Such a wholly impractical result would be impossible to staff or implement – there are just not enough trained personnel or helicopters available.’
31/10/06Learn about the age regulations'Since 1 October, UK employees have been protected from discrimination on the grounds of age. As it is projected that a third of the workforce will be aged over 50 by the year 2020, it was always likely that older workers would receive more protection.
But younger workers are protected too; there are radical changes to statutory payments, and some concerns over how exactly the regulations will work.
On 9 November Lucy McLynn, partner Bates, Wells & Braithwaite, describes the impact of the age regulations for payroll managers at the autumn Payroll World conference.
The conference will also feature a legislative update from Phil Nilson of the HMRC, and a guide to the Construction Industry Scheme by Alan Nolan, director of employment tax in construction group at accounting giant KPMG.
19/10/06TUC calls for more rightsThe TUC called for more rigorous implementation of minimum wage regulations, and for measures to regulate employment agencies, following a report on low-paid workers by the Policy Studies Institute.
The report found that around 5.3 million workers earn below one-third of the median hourly wage and are not represented by a trade union. Groups that are particularly subject to poor conditions include agency employees, migrant workers, homeworkers and employees in the informal sector, the report said.
The TUC called for licensing of all employment agencies, early implementation of the EU Temporary Agency Workers Directive and enforcement of employment rights such as minimum wage.
06/10/06Boost to women at workThe Government plans to unveil proposals aimed at boosting the prospects of women in the workplace.
Initiatives will include pilot schemes to test new recruitment and career pathways for at least 10,000 women. These moves by the Government are a response to a report published in February into the barriers that lead to women earning less than men. Communities Secretary Ruth Kelly said enabling women to get better jobs could be worth up to £23bn a year to the UK economy. Initiatives to be unveiled by Ms Kelly are expected to include a national campaign to encourage businesses to sign up as ‘exemplar employers’ offering women help with flexible working, time-share and good-quality part-time work. Eighty companies and organisations, including Accenture, BAE Systems, BT, BP and Centrica, have already signed up.
06/10/06Tough fines in smoking clampdownEmployees caught lighting up in the office or in their company car could be fined £50 in a new Government crackdown on smoking at work, warns law firm DWF.
’The draft regulations will effectively ban smoking rooms, and employers who do not comply could face fines of up to £2,500,’ said Sarah Clayton, associate with DWF. ‘Smoking will be prohibited in all enclosed or partially enclosed workplaces and in company cars unless it is a vehicle used by only one driver or it is a convertible and the roof is open.’ Employees or visitors who are caught smoking will be subject to a fixed penalty of £50-£30 if paid within 15 days. Those who fail to pay up could be fined up to £200 and end up with a criminal record. Meanwhile employers will be obliged to display a ‘no smoking’ sign or face a fixed penalty of £200. The Smoke-Free (General Provisions)Regulations are at present at the consultation stage, which ends on 9 October 2006. The development follows the announcement by Dublin-based DotCom Directories that it would refuse to consider any job applicants who smoke(Headline News, August 06), and comes shortly before the ban on smoking in public places for England and Wales next year.
06/10/06Have your say on cutting red tapeThe Government’s Better Regulation Executive has launched an initiative to cut back on red tape for employers. This autumn Government departments will publish plans setting out a list of regulations that will be removed or streamlined.
‘Departments are already being sent ideas on how or where this can be done,but if you’ve got your own ideas and haven’t yet shared them, get in touch now,’ said William Sargent, executive chair of the Better Regulation Executive. He added: ‘You can either send your suggestions direct to the relevant Government department or to us at the Better Regulation Executive. Contact details at www.betterregulation.gov.uk
06/10/06EU threat over working hoursEU Employment Commissioner Vladimir Spidla last month threatened legalaction against countries he said are in breach of the Working Time Directive.
Most EU member states do not fully comply with the directive, especially with regards to public sector workers such as health care professionals, he said. In particular, on-call time must be counted as part of the maximum 48-hour week. A recent test case confirmed that on-call time at a place of work counts as working time, even if the individual is asleep, if it is a condition that the employee is present (News, September 06).
He called on member states to agree reforms to the directive to clarify the situation on on-call working.
06/10/06CBI calls for wage restraint The National Minimum Wage has benefited lower paid workers, but another big rise would damage many businesses and boost the black economy, the CBI has warned.
Minimum pay rises to £5.35 an hour from this month signify a growth of 27% since 2002 – significantly higher than the average wage growth of 18%. In its submission to the Low Pay Commission last month, the employers’ body claimed that rising energy costs, lower 2007 growth forecasts and the increasing cost of employment regulation mean that the economy cannot accommodate further above-inflation minimum wage rises.
The submission indicates that businesses in many sectors – including retail, hospitality and food production – are struggling with the pay floor. Many have had to reduce staff hours and employee benefits; others report that job losses are increasingly likely. Susan Anderson, CBI director of HR policy, said: ‘Firms are already under great pressure from rising energy costs, lower-waged competition overseas, and an uncertain global economic outlook.’ She added: ‘Others are being undercut by a minority of unscrupulous employers who avoid paying the minimum wage.’
06/10/06Six-hour defeat for GovernmentEmployees will be banned from working for more than six hours without a break following a ruling from the European Court of Justice, describing guidelines issued by the Department of Trade & Industry in 1998 as ‘meaningless’.
On 7 September it ruled that businesses must ensure that employees take minimum rest periods to comply with the European Working Time Directive.
Staff are entitled to at least 11 hours between working days, and must have a minimum of one day off a week, as well as a 20-minute rest after every six hours of work. The ruling brings the UK into line with most of the rest of Europe.
Also this month, the Conservative Party has claimed that the Working Time Directive is forcing some closures and reorganisations in the NHS.
21/09/2006‘Confusion’ about ageism buildsThe public remains in the dark as to what ageism is on the eve of anti age-discrimination legislation, according to the Employers Forum on Age’s (EFA)latest report, Defining Ageism.
The Forum asked more than 1,000 people to respond to a range of scenarios on age-related employment issues. This found that:
•A third of people think it is OK to pay people according to their age,
•36% think that people of different ages should be managed differently,
•40% think it is fair to employ a person of similar age so that everyone gets on.
‘All these scenarios will be unlawful in October,’ said Sam Mercer, director of the EFA. ‘We need to encourage people to challenge long-held views that could now land them and their employer in court.’
•Details on the new age regulations are at: www.dti.gov.uk/employment/discrimination/age-discrimination/index.html
01/09/2006Fathers miss paternity leaveOnly 37% of new fathers take the full statutory two weeks’ paid leave, and 58% take less than a week, according to a survey by Government news portal YouGov for bank ING Direct.
Nearly half (48%) of the 1,000 new fathers surveyed did not take their full entitlement because they could not afford to lose income. Statutory Paternity Pay is £108.85 per week or 90% of the employee’s average weekly earnings if this is less. ‘Men continue to choose to return to work early, with many mentioning the high financial cost of taking paternity leave as an important factor,’ said Lindsay Sinclair, CEO of ING Direct.
01/09/2006Age law ‘breach’ of EU rightsA working rights group has said it will take the Government to the High Court over age discrimination legislation to be introduced this October.
Employees will be able to request to work beyond age 65, but employers do not have to give a reason for refusal.
The Heyday Group, backed by Age Concern, believes employers should have to give a reason for refusal under European equal rights legislation.
‘We are determined to challenge the existence and legality of forced retirement,’ said Neil Churchill, a Heyday spokesman.
From October, new rules are being introduced to tackle age discrimination in the workplace. Employers will be banned from forcing workers to retire before the age of 65.
04/08/2006Gay banker appealsA former senior HSBC banker has lodged an appeal following an Employment Tribunal ruling that said he had not been sacked from his job because he is gay.
Peter Lewis lost his £5m lawsuit against HSBC in May when an Employment Tribunal rejected his claim of unfair dismissal based on his sexual orientation, but the tribunal did uphold four of the 16 claims made by Mr Lewis against the bank.
Alison Downie, Mr Lewis’ lawyer, said he is challenging the ruling on the ground that the disciplinary process that led to his dismissal was ‘tainted’ by discrimination.
Mr Lewis, the former head of HSBC’s global equity trading, was sacked for gross personal misconduct following an allegation of inappropriate behaviour by a fellow employee. However, Mr Lewis claimed he was discriminated against – and sacked – because of his sexual orientation.
04/08/2006Public sector absentThe public sector continues to report the highest levels of employee absence, according to findings from the Chartered Institute of Personnel and Development (CIPD).
The annual Absence Management Survey 2006 of 1,030 UK-based HR professionals shows a significant difference between how public and private sector manage absence, with public sector organisations less likely to carry out disciplinary procedures or to dismiss employees due to absence.
Other findings are:
• The number of employers reporting an increase in stress-related absence has continued to increase, to 46% compared with 39% last year. However, the majority of respondents are taking steps to improve how they manage workplace stress.
• Back pain climbed ahead of musculoskeletal injury as the number one cause of long-term absence for manual workers.
• Overall levels of employee absence are continuing to fall.
04/08/2006UK retains opt-outUK employees have retained the flexibility to choose to work longer than the 48 hour per week limit imposed by the European Union’s (EU) Working Time Directive, following the failure to reach an agreement at recent EU talks aimed at removing the UK’s opt-out.
Under the Directive, employees are restricted from working more than 48 hours a week. UK employers have the choice to opt-out if their employees agree, allowing them to work longer hours.
In recent months, the European Parliament has pressured the UK to surrender its opt-out. In the latest round of talks held in Austria on 1 June, the UK Government succeeded in blocking the removal of the opt-out for the time being.
10/07/2006NHS staff take sickiesNHS staff take twice as many days off sick a year as private sector workers, according to a survey of health trusts in England by the NHS’s Information Centre. It found they lost an average of 4.5% of working time to sick leave in 2005.
CBI figures suggest the average absenteeism rate in the private sector is six days a year. Health service staff in the north-east and north-west of England were most likely to take sick days, with a total of 5.3% of working time lost to sickness absence in the north-east compared with 4.1% in London.
Overall, health service sickness absence rates have fallen slightly from 4.7% in 2003. Trusts that provide frontline services had the highest rates of sick leave, with the ambulance service recording an absence rate of 6%.
Staff working in the administrative, strategic and special health authorities were least likely to be away ill (2.8%).
10/07/2006Paid for taking holidaysWorkers will get to take paid leave for bank holidays in addition to the statutory four weeks annual leave, under proposals outlined in a government consultation last month. The proposals means that up to two million low-paid workers stand to benefit from additional leave, said the Government. It wants to phase in the additional leave, starting with an increase from 20 to 24 days (pro rata for part-time workers) from 1 October 2007.
TUC General Secretary Brendan Barber welcomed the proposals: ‘The proposals will close the loophole which allowed mean bosses to force staff to take bank holidays from their four weeks’ annual leave. They will no longer be able to do this and all full-time employees can look forward to a minimum of 28 days holiday a year.’ The consultation closes on 22 September and can be found at www.dti.gov.uk/employment/holidays/index.html
10/07/2006
Payroll World
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