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Contents
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About nicholasfrimond
Nicholas Frimond is a
specialist employer lawyer having qualified as a solicitor in 1971. He
acts for employer and employee clients on a whole range of employment law
issues with an emphasis on discrimination at work. Nicholas Frimond has
considerable experience of appearing for clients before Employment
Tribunals throughout the country and the Employment Appeals Tribunal in
London. Last year Nicholas Frimond at the invitation of the
Law Society’s Employment Law Committee and the National Employment
Tribunal Users Group made recommendations to the Department of Trade on
how Employment Tribunals should enhance communications in its dealings
with their users.
If you require advice or
assistance, please contact Nicholas
Frimond.
Disclaimer
The information contained in this bulletin is for general
information purposes only. It does not constitute legal or any other
type of professional advice.
nicholasfrimond do not accept and, to the extent permitted by law,
exclude any liability to any person for any loss which may arise from
relying upon the content of this bulletin.
If you have a particular issue or query, we recommend you seek
specific, personal advice and do not rely on the information in this
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Welcome
All employers will need to get to grips with the new age
discrimination laws which arrive next year. They will involve substantial
cultural shifts. Adverts seeking 'young, enthusiastic workers' will become
unlawful. Birthday cards making fun of somebody's age may be regarded as
illegal harassment, giving rise to liability. Substantial changes will be
introduced in connection with retirement ages. We summarise the main
proposals, which have not yet been finalised, below.
We also
consider some of the most important recent developments which affect
employers and HR professionals. If there is anything you would like to see
dealt with in these newsletters, please contact us
For further information, please contact me on mailto:nicholas@frimond.co.uk?subject=Enquiry
from Employment Law Email Newsletter
Nicholas Frimond
Age
Discrimination
From October 2006, all employers will
be subject to new age discrimination laws. The government has just issued
a first draft of the new laws for consultation.
In summary, the
proposals:
* ban age discrimination in terms of recruitment,
promotion and training;
* ban all retirement ages below 65 - except
where objectively justified;
* require employers to inform
employees in writing, and at least 6 months in advance, of their intended
retirement date. This will allow people to plan for their
retirement;
* remove the current upper qualifying age for unfair
dismissal and redundancy rights;
* impose a duty for employers to
consider an employee's request to continue working beyond retirement;
and
* impose a requirement for employers to give written
notification to employees at least 6 months in advance of their intended
retirement date. This will allow people to plan for their
retirement.
Maximum Workplace
Temperature
As temperatures soar, we are receiving
more and more enquiries about whether employers can be sued because
employees are claiming they are suffering from ill-effects caused by the
temperature.
Surprisingly, although the law sets out minimum
temperatures for the workplace, there is no clear legal
maximum.
Regulation 7 of the Workplace (Health, Safety and Welfare)
Regulations 1992 provides that "during working hours, the temperature in
all workplaces inside buildings shall be reasonable." Last year, following
a request from USDAW for a maximum temperature to be created, the
government stated that it would not introduce a maximum workplace
temperature as it would be too impractical.
The World Health
Organisation has stated that the maximum temperature for 'comfortable'
working (which, of course, is different from the maximum temperature for
'safe' working) is 24 degrees Celsius.
Perhaps the best guidance is
the call from the TUC, in 2003, for a maximum workplace temperature of 30
degrees (or 27 degrees for those doing strenuous work).
If
temperatures in your workplace are approaching these levels, you need to
think seriously about ways to manage risks such as fatigue, dizziness,
dehydration and asthma. Failure to take reasonable steps (which would
include introducing portable air conditioning machines, fans, providing
free water or allowing longer breaks) might result in civil liability if
an employee suffers ill-health.
Discrimination
The Employment Appeal Tribual has held, in Dattani v Chief
Constable of West Mercia Police, that evasive, incorrect, or nil
replies to questions asked in a discrimination case can lead to an
inference of discrimination, even if the questions were not raised under
the statutory procedures. The EAT held, on policy grounds, that "a
respondent, asked a direct question in writing ... who fails to respond,
or does so evasively, ought to be treated in the same way irrespective of
whether a question has been asked under the statutory
procedure".
This emphasises the importance of responding to
correspondence and providing full and frank answers at an early stage.
Putting off a full response now can have serious consequences
later.
Also, since discrimination laws were introduced 30 years
ago, when Claimants recover money in discrimination claims, tribunals have
awarded large sums of money against the employer and a token few hundred
pounds against the discriminating / harassing employee, if the Claimant
brings his/her claim against both the employer and the individual
discriminator.
Last month, in Way & IntroCate Chemicals v
Crouch, the Employment Appeal Tribunal has held that it is legitimate
to make both employer and discriminator responsible for the full amount,
so that employees can recover their full compensation from the
discriminator if the employer is insolvent.
The practical
ramification for employers is that they can seek a contribution from the
discriminator for a percentage (if not all) of the award. Tribunals, when
making the award, should specify the percentage blame for apportionment
between the discriminator and the employer, and the employer (once it has
paid the full amount) can recover the discriminator's contribution from
it.
Agency
Workers
Employment tribunals
have, in recent years, regularly been finding implied contracts of
employment between agency workers and end users.
However,
such workers often claim against either the end-user or the agency,
leaving them with a practical difficulty if the party they did not claim
against is found to be their employer.
Now the Employment Appeal
Tribunal has in Astbury v Gist Ltd recommended tribunals exercise
their own power to join parties so that the other party - the agency or
end-user - is added as respondent to allow a fuller review of the
employment relationship and more scope for a remedy.
... a recent example where the agency was not
liable
In Bunce v Skyblue, the Court of Appeal
has upheld a tribunal's finding that an agency worker was not employed by
the employment agency through which he worked as his contract stated he
was not an employee and there was a fatal lack of mutuality of
obligation.
Mr Bunce argued that the agency had day-to-day control
which it delegated to the end-user, but the Court of Appeal rejected this
argument, instead holding that the correct approach is to examine the
level of day-to-day control exerted by the agency in practice rather than
theory.
Holiday Pay
Ruling
The right to four weeks' statutory paid
holiday under the Working Time Regulations 1998 does not continue
to accrue while an employee is off on long-term sick leave, the Court of
Appeal has ruled in Commissioners for the Inland Revenue v
Ainsworth.
This overturns both the Employment Appeal Tribunal’s
decisions in Kigass Aero Components v Brown (2002) and also in
List Design v Douglas (2002), in which it was held that non-payment
of statutory holiday entitlement amounts to a non-payment of wages under
Part II of the Employment Rights Act 1996.
As a result of
overruling List Design, claimants can now only claim compensation
for unpaid statutory holiday for a maximum of one year, rather than under
the 1996 Act which allowed claims to go all the way back to
1998.
Redundancy
Dismissals
The courts have
handed down two important decisions on redundancy dismissals.
In
the first case, Fisher v Hoopoe Finance Ltd., the Employment Appeal
Tribunal reaffirmed the well-known rule that an employer must give an
employee sufficient details of alternative available jobs (such as salary)
to allow the employee to make an informed decision as to whether to accept
it. However, the EAT went further and hinted that the failure by an
employee to indicate interest in alternative vacancies, or to ask for
salary details, might amount to contributory fault which would reduce an
unfair dismissal award.
And Bowyer v Siemens Communications,
the EAT held that if a tribunal thinks the real reason for dismissal was
not redundancy (i.e. there was no real redundancy situation, and the
employer has dismissed for another reason), then the tribunal is not
allowed to reduce the unfair dismissal basic award by the amount of any
'redundancy payment' made at the time. This will normally have no
practical effect, since it will instead be taken off the compensatory
award. However, it will make a difference if there is a nil compensatory
award (because the employee will still get his basic award), or if the
compensatory award exceeds the cap of £56,800.
Fresh from Acas
Good practice advice on the Information and Consultation of
Employees (ICE) Regulations, which also came into effect on April 6, is
amongst the latest guidance from Acas.
Prepared in collaboration
with the DTI, CBI and TUC, it offers a brief overview of the legislation
and offers help to both employers and employees through a series of units
dealing with issues such as 'subject matter', 'methods and structure' and
'employee representation'.
Also new are:
* an updated version of the Representation at Work advisory
booklet, which covers representation of individuals with personal issues,
consultation, works councils, collective bargaining, workforce agreements
and joint working groups.
* a revised version of Tackling Discrimination and Promoting
Equality, an employers' good practice guide which includes a sample
equality policy and helpful checklists.
* an e-Learning Guide on Working Parents, covering maternity,
paternity and adoption rights and pay, parental leave, time off to help
dependants, and the right to request flexible working
* an updated A-Z of Work, an online handbook offering an overview
of key employee relations topics aimed primarily at organisations without
specialist HR resources but also useful as a quick aide memoire and
starting point for sources of further guidance.
* other updated information leaflets, namely: communicating with
your employees, contracts of employment, controlling labour turnover,
dealing with grievances, discipline at work, induction
training
* an updated online Guide to Pay, covering topics including
statutory maternity, paternity and adoption pay, equal pay, redundancy
pay, and protection from unauthorised deductions.
* an online Parents at Work guide, highlight rights such as time
off for antenatal care and dependents, flexible working, maternity,
paternity and parental leave.
* a .pdf case study highlighting "an Acas joint working approach to
training line managers and supervisors" at Patak's, the Indian food
producers. The study examines work practices, employee representation and
worker attitudes.
* a booklet on Recruitment and Induction
* a Q&A on Discipline, Dismissal and Grievances
* a leaflet on Flexible Working
* a leaflet on Employing Older Workers
All are available
from http://www.acas.org.uk - you need to register (for free) to gain
online access to some Acas
publications.
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