Default Retirement Age - Court Ruling

The default retirment age of 65 is not unlawful but should be scrapped, a High Court judge has ruled in the long-running Heyday legal case. Mr Justice Blake said the DRA was not unlawful when introduced by the government in 2006, but there was now a "compelling" case given the state of the UK economy for considering whether a retirement age is necessary. This case means that the Heyday case by charities Age Concern and Help the Aged has been dismissed. It is still legal for UK employers to force workers to retire at the age of 65. The judge said his ruling took into account the government's intention to review the default retirement age early next year.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Default Retirement Age Ruling

The default retirment age of 65 is not unlawful but should be scrapped, a High Court judge has ruled in the long-running Heyday legal case. Mr Justice Blake said the DRA was not unlawful when introduced by the government in 2006, but there was now a "compelling" case given the state of the UK economy for considering whether a retirement age is necessary. This case means that the Heyday case by charities Age Concern and Help the Aged has been dismissed. It is still legal for UK employers to force workers to retire at the age of 65. The judge said his ruling took into account the government's intention to review the default retirement age early next year.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Equality in the City

The Treasury Select Committee are to collate evidence and research the role of, and number of, women in the UK financial sector. They will be gathering evidence on issues such as pay and promotion inequality, flexible working and culture and sexual harassment.

John McFall, Committee Chairman, said he hoped the inquiry would provoke an important debate about the representation and treatment of women in finance. He said that "At a time when pay and corporate governance are key issues in terms of redrawing financial regulation, the committee feels it is important to highlight the issue of gender equality in the financial services industry".

This means that the traditional model of city financial institutions will be under scrutiny and likely to lead to tighter regulation. It is important that all businesses, and not just large financial firms, put in place good equality policies, and then monitor and enforce them regularly. It is always good practice to have such policies in place with clear and objective criteria for issues such as promotions and flexible working to make sure all staff are treated equally which will of course avoid sex discrimination and other claims.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Second Jobs and The Working Time Regulations Trap

The recession has prompted many people to seek a second job to supplement their incomes and this can have implications for employers under The Working Time Regulations. Under the regulations, an employee is allowed to work a maximum of 48hours per week averaged over a 17 week period unless extended by a workforce or collective agreement. However employees can opt out of the 48 hour maximum but they can't be forced to do so, plus if they do voluntarily opt out, they can also opt back in at any time by giving notice to their employer. What some employers do not realise is that the limit applies to all jobs an employee might have. For example, many people look for second jobs in the hospitality and tourism industry in hotels, restaurants, cafes and this trend has been on the rise in the past six months according to recruitment agencies.

It is important therefore that employers check if their current employees are undertaking additional outside work, and if they are, then it would be good practice to inform them that if they are to work more than 48 hours a week on average, in all their jobs, then they will need to sign an opt out agreement. Employers might also consider reviewing employment contracts to include a clause in future which will require employees to get specific permission before accepting futher work elsewhere.

If employers consider recruiting seasonal staff even if only temporarily, it would be wise to discuss with them the amount of other work they do and if necessary ask them to sign an opt out agreement. Also remember that the opt out agreement only covers the 48 hour maximum and all other statutory requirements such as a minimum break of 20minutes in any 6 hour shift etc all still apply.

The other thing to remember about The Working Time Regulations is that they come under Health and Safety and not employment legislation so even if employers have signed opt out agreements they remain responsible for employees health and safety at work ie the need to make sure employees are not too tired to carry out their duties safely and correctly.

Contact me if you need help with opt out agreements or reviewing your employment contracts.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Annual Leave on Sick Leave

The long awaited decision in Stringer v HMRC has been made today by the House of Lords in favour of employees, overturning the previous Court of Appeal decision in this case.

It has been unanimously held that a claim for unpaid holiday or a payment on termination of employment are both unauthorised deduction claims. As a result of this decision employees can benefit from the longer time limits which apply to unlawful deduction claims which can be made within three months of the last in a series of deductions - that would allow a claim to go back more than three months if the underpayments were part of a series.

In a previous ECJ decision a member state could allow an employee on sick leave to take annual leave or could prevent the employee taking leave while off sick but only so long as the employee had the right to carry over holidays to following year/s if he or she was unable to take leave because of illness. The ECJ had also held that compensation payments on termination should not be discounted on account of sickness.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Success for Equal Pay Battle

Part-time women workers are celebrating a landmark victory in a pension payout dispute after an equal pay fight against a top private school which has lasted for more than 11 years. With the help of public-sector union UNISON, the women finally won a payout in excess of £150,000 after originally taking their pay claim to the employment tribunals in 1998. The female workers at the Haberdashers boarding school for boys and girls in Monmouth School, were denied access to the school's pension scheme, while the full-time male staff working in similar roles were allowed to join on a voluntary basis. The women argued that the school was discriminating against them because of their sex and was in breach of equal pay and sex discrimination legislation. UNISON successfully argued that pensions are deferred pay, with the non-contributory scheme, based on final salary, being worth around £1,300 a year for eight years for each worker, plus a lump sum. UNISON general secretary Dave Prentis regretted that it had taken over a decade to get justice and called for a "speeded-up system" to deal with equal pay claims. "The school dragged out the case and probably spent more in legal costs than it did to settle the dispute with their loyal workers," he said. "Employers must now think twice before they oppose these type of claims or face action from UNISON." There are 27 beneficiaries in the case, including house parents, administrators, assistant matrons, cooks and cleaners. Their claims covered the period when the pension scheme was changed - between 1976 and 1999. The claimants, many of whom are now retired and will receive between £1,500 and £17,000 each, celebrated the win. However sadly because the case was dragged out by the school for so many years before an offer of compensation was made days before the tribunal, retired Kay Bamford, who worked as a cleaner for over 10 years, died before she could benefit from the landmark victory. Tess Taylor from Monmouth, who worked at the school as an assistant matron for 27 years before retiring in 1999, hailed the ruling as "a large victory for small people." She added: "I find it crazy that a satisfactory offer from the school was only made days before the tribunal took place."

Hindsight is a wonderful thing - this is a very good example of why it is important for both employer and employees to have a robust Equality and Diversity policy in place and have a happy workplace into the bargain.....

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Paternity Leave Delayed

Proposals from 2005 relating to paternity leave which would have given fathers 6 months leave have been put on hold by Lord Mandelson's department to help employers in the recession. The proposal was designed to allow mothers and fathers to share a year of parental leave with the mother taking six months leave following by the father's six months leave. It would allow women to get back to work but it was criticised by business groups as being too costly and an "administrative headache".

A spokesman for the Department for Business, Enterprise and Regulatory Reform (BERR) said plans to introduce the rights this year were now on hold. The spokesman told the Daily Telegraph (http://tinyurl.com/lotfqy): "We have not yet announced a date for extending maternity and paternity rights. We are continuing to review the appropriateness of all new regulations due to come into force in the current economic climate. It is only right that in tough economic times we look afresh at the costs and benefits of new regulations."

But Katherine Rake, director of the women's campaign group Fawcett Society, criticised the delay.

She said: "It looks like Peter Mandelson is undermining the equalities agenda again. He cannot use the recession as an excuse to roll back hard-won commitments to mums and dads."
Under the current legislation, fathers are entitled to just two weeks' paternity leave to be taken just after the baby is born.

In March, the Equality and Human Rights Commission urged the government to offer fathers 90% pay for their initial two weeks of leave at the birth of their child, and for parents to be given four months leave after the mother's initial six months leave, which either parent can take.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

£65,000 Award for Unfair Dismissal, Racial Discrimination + more....

Apparently the British Refugee Council are now reviewing their Equality procedures after an award of £65,000 was made against the body by an Employment Tribunal. A former black employee was awarded the compensation when he along with another black worker (the only two black employees at the centre) were made redundant leaving only white staff at the Oakington immigration centre.

Emmanuel Obikwu was awarded £65,000 for unfair dismissal, racial discrimination, injury to feelings, psychiatric injury and loss of earnings. Just months before (January this year) his former co-worker, Zaina Ukwajuv, won a claim for unfair dismissal and was awarded £30,000 for unfair dismissal, victimisation and racial discrimination.

Although the Home Office's original plan to close the centre was put on hold, both were still made redundant 5 months later. The chairman of the Tribunal, at Zaina Ukwaju’s hearing, said that white staff who were less experienced were kept on over the only two black employees.The Tribunal also heard that there was a likelihod that the operations manager had shown favouritism towards his friends when selecting staff for redundancy.

With the new Equalities Bill in the pipeline, it is ever more important for businesses to ensure they have reviewed their Equalities procedures, particularly when it comes to selection for redundancies.


Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Employees Working Off Site - Liability under Provision and Use of Work Equipment Regulations 1998?

The House of Lord have issued their decision in Smith v Northamptonshire County Council - a case concerning an employee injured on a crumbling wooden ramp while wheeling a wheelchair user (Mrs Cotter) from her home to the minibus driven by the employee who also worked for the Council as a carer. The ramp in question had been installed by the NHS some 10 years earlier and had a latent defect in it. It had been inspected by the Council but not for the purposes of these Regulations. The House of Lords held that unless the equipment in question, ie the ramp, was actually in the "control" of the employer then there was no liability. In this case the Council did not install the ramp, did not have any responsibility maintain it and had no control over it's maintenance or use. For that reason, the House of Lords decided in favour of the council because it did not have the necessary level of control over the ramp and so were not liable under the Regulations.

So, from this point of view, businesses can relax because they will not be held liable for equipment used by their employees whilst working off site, which is not within their "control".

Their Lordships also considered the principle behind the Regulations which is that they are there to promote employees health & safety and not to give employees a right to claim compensation.

Age Discrimination & Court of Appeal Landmark Ruling

A Court of Appeal Judgment delivered yesterday, 14 May 2009, confirms that using length of service as one of the list of criteria for redundancy selection is not age discrimination. The effect of that judgment is that it will help to protect older workers who, if made redundant, would find it more difficult to find another job, than their younger co-workers. The details are as follows from a press release from Unite the Union:

"Unite the Union, Britain's biggest union succeeded in securing a landmark judgment from the Court of Appeal against Rolls Royce in one of the first cases on age discrimination to be considered by the higher courts.

The Court of Appeal handed down its landmark judgment upholding Unite's resisting an appeal by Rolls Royce against the decision of the High Court which declared that the use of length of service as one of a number of redundancy selection criteria was not age discrimination.

Rolls Royce operated a redundancy selection procedure in agreement with Unite, which included length of service as one of six criteria with one point awarded for each year of service. Despite objections by Unite, Rolls Royce made an application to the High Court asking for a Declaration that the use of length of service as one of the redundancy selection criteria discriminated against younger members of the workforce who had less opportunity to accrue length of service and was therefore unlawful under the Age Regulations.

Rolls Royce's application was disputed by Unite on the basis that length of service was an objective and generally accurate measure of the loyalty and expertise of employees. Unite further asserted that the older and longer serving members of the workforce required a degree of additional protection in a redundancy selection exercise since they were likely to find it more difficult to secure alternative employment if made redundant. Finally, Unite pointed out that the collectively agreed criteria, including length of service, had the jointly agreed objectives of the achievement of redundancies in a fair, transparent and peaceable manner.

The High Court rejected Rolls Royce's application in October 2008 and Rolls Royce appealed to the Court of Appeal. The Court of Appeal rejection of Rolls Royce's appeal makes it clear that it is lawful for employers to use length of service as one of a number of criteria when selecting employees for redundancy.

Unite's joint general secretary, Derek Simpson said: "We are delighted with this decision. The ruling sets a precedent , where other factors are equal, for protecting older workers from the effects of redundancy. It has always been clear to Unite that loyalty seen in length of service should be recognised when an employer takes the drastic step of making redundancy dismissals. We look forward to using this decision to help defend our members' rights in many other companies as well as Rolls Royce."

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

National Minimum Wage & Tips, Gratuities etc

BERR has just issued the Government's Response to its Consultation on Service Charges, Tips, Gratuities and Cover Charges. The National Minimum Wage Act 1998 came into force in 1999 and since then it has been legal to use service charges, tips, gratuities and cover charges towards payment of the national minimum wage when payment is made through the employer's payroll.

The responses to the consultation came from a broad spectrum of interested parties: from individual customers, to business and trade unions and bodies. Unsurprisingly, those on the employee and customer side support the change in the law while business and trade bodies suggest delaying the change until the economic climate improves. However, the majority of responses support the change. So on that basis, the government, having taken evidence from stakeholdes and having carried out an impact assessment, believes the time is now right to change the law to create a level playing field in wages paid by employers. The government's response states that it will also create equity for employees, plus create transparency for the customers leaving tips in good faith for the employee so that they will know how their money is to be used.

The government states it is working with the Hospitality, Leisure and Service Sectors to ensure there will be no unnecessary additional administrative burdens on employers.

The change in the law will come into effect on 1 October 2009. (The current National Minimum Wage is £5.73 per hour.)

How will it affect your business? Will it cost you more or are you already paying tips in addition to the national minimum wage?

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

48 Hour Working Opt Out

The failure of MEPs and EU governments to agree on a draft Directive amending the 48 hour individual opt out and ‘on call’ time rules means the opt out stays in force probably for many years and without fresh restrictions (on how and when it can be signed and on annual renewal). This is good news as it applies to around 120,000 hospitality employees.

Employees can still be asked to “opt out” and so work more than 48 hours a week, but continue to have the right to reject this request or change their mind on no more than three months’ written notice, without suffering any adverse treatment as a result.

This will be good news for employers because the "opt-out" is used widely throughout the UK. It will help businesses in the current economic climate and alleviate additional burden on employers and allow employees’ the choice to work extra hours to earn more money.

The downside to this though is that it means that the proposals to give employees extra protection by preventing unscrupulous employers exploiting the opt-out system, have been shelved, for the time being at least.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

New Health & Safety Poster

The current version of the Health & Safety Poster has been revised by The Health and Safety Executive (HSE). Employers can now purchase copies of the HSE’s new health & safety poster (http://www.hse.gov.uk/pubns/books/lawposter.htm). The new posters, according to the HSE, are “modern, eye-catching and easy to read. They set out in simple terms, using numbered lists of basic points, what employers and workers must do, and tell you what to do if there is a problem.”

Under the Health and Safety Information for Employees Regulations (HSIER) employers have a legal duty to display the poster in a prominent position in each workplace or provide each worker with a copy of the equivalent leaflet outlining British health and safety laws. In other words it is the employer's duty to ensure their employees are fully aware of workplace health & safety requirements. The leaflet that employers can give to workers, instead of displaying the poster, will be in the form of a pocket card that is better suited to the workplace.

The current poster and leaflet from 1999 are not visually attractive enough to prompt it to be read, according to recent research. There should be a significant benefit to employers and employees by increasing awareness and understanding of this area of law. The new design should also mean less admin work and cost for employers.

Existing versions of the poster and leaflet can be used for up to 5 years from the effective date of the new poster which came into existence on 6 April 2009 ie. until 5 April 2014 but only if they can be easily read and the relevant contact information is kept up to date. You can get this information from Infoline on 0845 345 0055.

As from 6 April 2009 only the new health & safety poster and new pocket cards are available to purchase.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

The Transfer of Undertakings (Protection of Employment) Regulations 2006

The case of Royden v Barnetts ­Solicitors decided in the Liverpool Employment Tribunal last week is the first involving a law firm and the Transfer of Undertakings (Protection of Employment) Regulations of 2006. For a detailed analysis it's worth reading the following article in The Lawyer: http://tinyurl.com/chm24l.

In summary however, what it means is that where professional service providers such as lawyers and accountants win a commercial contract with a corporate client, those winning the contract will need to look very closely at the existing provider of those professional services and the staff employed by that provider, because in accordance with the TUPE 2006 regulations and as ruled in this case, they will be inheriting the former provider's employees. This could be tricky particularly if the client has decided to change their professional service provider because of the former provider's employees! The cost of dealing with those employees ie re-deploying them or paying the unfair dismissal costs will more than likely land with the new service provider.

The good news is that only those former employees who spent more than 50% of their time on the client's work will qualify for the TUPE protection though if someone spends slightly less but always treats that work as a priority then they could also be caught under TUPE.

In this case, the employees claimed unfair dismissal because of the location of the new service provider being in Southport when they had previously worked in their own firm's Birkenhead office. The judge ruled in this case that there had been no appropriate consultation and that the former employees had been "affected by a service provision change" under Regulation 4(9) of the 2006 TUPE regulations and that there had been a "substantial change in working conditions to their material detriment" which meant they could claim unfair dismissal.

Regulation 4(9) of the TUPE 2006 regulations states: Subject to regulation 9 (which relates to insolvency) where a relevant transfer involves or would involve a substantial change in working conditions to the material detriment of a person whose contract of employment is or would be transferred under paragraph (1), such an employee may treat the contract of employment as having been terminated, and the employee shall be treated for any purpose as having been dismissed by the employer.

So working conditions are much softer factors such as job status, uniform, location, job description and aren't necessarily contractual.

The commercial reality now is that professional service providers such as law firms and accountants will now have to make sure they have carried out all necessary enquiries and agreed in writing/contractually with the new client how the issue of any former employees who might come under TUPE is to be handled so that they are fully aware of all upfront costs of taking on the new client.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Flexible Working Rights Extended

Well, it's finally just been announced that flexible working rights will be extended from 6th April to a further 4.5million parents and carers with children aged up to and including 16 years. This brings the number of people who will have the right to request flexible working to more than 10million.

The government has been keen to point out the following benefits of extending flexible working rights:

• the balance work and family life for parents and carers;
• businesses will have continuity when employees, like mums, take a career break and return to the same jobs;
• the working parent or carer is able to work hours which helps them to cope with their family responsibilities and circumstances.

The right to request flexible working already exists for parents and carers of children up to six years, or children with disabilities up to 18 years.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

1st April 2009 New Employment Legislation

There will be a number of new pieces of legislation from April 2009. However, the extension of the right to request flexible working to parents of children up to age 16, which was expected to come into force from April, has not been announced and it sounds as though this will be put on hold during the economic downturn considering all the other pressures on business owners. Also on hold for the time being is the proposed extension to maternity leave to 12 months and additional paternity leave and pay which are all on hold until 2010.

Statutory Sick Pay and Statutory Maternity Pay have both been increased in line with the government's proposals to £79.15 and £123.06 respectively.

The annual holiday entitlement, in accordance with the Working Time (Amendment) Regulations 2007, has also been increased to 5.6weeks which is 28 days annually for a 5 day working week. This takes effect from 1 April 2009. It's important however to note that there is no statutory right to take Bank or Public Holidays paid or unpaid so this new statutory holiday entitlement would potentially include those days as well. It would be good management practice to inform employees, in writing, of their statutory holiday entitlement. See copy template letter to send to staff at the end of this article. The ability to pay workers in lieu of the extra days (i.e. those above the old entitlement of 4 weeks/ 20 days), which applied from 1 October 2007, will cease to apply from 1 April, so your employees will have to take at least 5.6 weeks’ holiday in each leave year.

Another change will be the eagerly awaited repeal of the statutory dispute resolution procedures which the Employment Act 2008 repeals in their entirety and instead introduces the new ACAS code for disciplinary and grievance procedures. Dismissals will not be automatically unfair if the new ACAS code is not complied with however the employment tribunal can still increase or decrease awards by up to 25% based on the reasonableness of complying or otherwise of the code. What should be borne in mind though is that there will be a transitional period continuing to use the current procedure and in some cases, though probably not too many, it could apply to grievances until October 2009.

Minimum Wage - Employers who are found to underpay the minimum wage will face a penalty of 50% of the underpayment for such underpayments on or after 6 April 2009. There is a minimum penalty of £100 and maximum of £5000. A discount of 50% will be given if the penalty is paid within 14 days of receiving the HMRC Notice of Underpayment and they will have to repay the arrears to the worker/s at the current rate of NMW applicable when the repayment is to be made.

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Increased holiday entitlement - template for letter to staff

Dear ___________,

Your holiday entitlement will increase from 1 April 2009, following changes to employment legislation.

Your leave year runs from [insert month] to [insert month], and for the leave year [insert month] to [insert month] [2009/10] your holiday entitlement will be ___ [days/hours] (based on ___ weeks of _ days).

For the following leave year, [insert month] to [insert month] [2010/11], your holiday entitlement will be ___ [days/hours] (based on ___ weeks of _ days).

This holiday entitlement is inclusive of any time off for bank and public holidays.

Yours,

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Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Retirement Law

Can employers lawfully force employees to retire at 65?

The European Court of Justice (ECJ) has sent that question back to the UK High Court in the long awaited "Heyday" case. (read the decision at http://curia.europa.eu/en/actu/communiques/cp09/aff/cp090019en.pdf)

The ECJ has ruled that it is for the national court to decide whether the UK legislation based on the EU Directive has a "legitimate aim" in terms of employment policy and labour market objectives.

The charities Age Concern and Help the Aged behind the case were hoping that the retirement age of 65 be abolished but it is now up to the UK High Court to rule on whether the government's default retirement age has a "legitimate aim".

The two charities felt that the UK had not properly implemented the EU Directive in the UK legislation (the Employment Equality (Age) Regulations 2006) because they allow forced retirement and that employers have too much scope for age rules which work against employees reaching retirement age.

For the Employees: There are a large number of cases awaiting the final decision of the High Court and if it rules that the compulsory retirement age is illegal then many older employees who have been forced to retire may be able to claim compensation from their former employers.

For the Employers: On the other hand, there are signs that the UK High Court will confirm that the UK government has properly implemented the EU Directive, and that employers can use the default retirment age of 65.


Do you think retirement should be compulsory at 65? Post your comments now.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Winners & Losers

As always, what’s good for one group is not necessarily a good thing for another. The government is looking again at their proposals to extend paid maternity leave to try and reduce regulation for employers. The review is led by Lord Mandelson after taking account of business leaders’ concerns. A government spokesman has said that, "He is not opposed to it: he just wants to look at it afresh. There has been no final decision on this yet." "It is right that we look closely at the costs to employers and the timing of new regulations. But we have a strong commitment to fairness and we will continue to help people get through this recession in a fair way."

However, the government review does not go so far as the proposal to increase rights for flexible working.

The 2 sides of the argument are as follows:

For the Employers: The British Chambers of Commerce, Director General, David Frost said, "It is right that we look closely at the costs to employers and the timing of new regulations," said a spokesman. "But we have a strong commitment to fairness and we will continue to help people get through this recession in a fair way." "The cumulative cost of regulation on business now stands at £66bn. A moratorium on harmful extra legislation would be good news in difficult times." The Institute of Directors said the extension of paid maternity leave from nine months to 12 months could load £600m of costs on to companies already struggling during the downturn.

For the Employees: Brendan Barber, general secretary of the Trades Union Congress, said there would be a backlash if ministers backtracked on new rights for working mothers expected to come into force in April next year.

Harriet Harman, the equalities minister is keen to go ahead with a number of policies that could impose red tape and costs on companies. Jon Cruddas, her backbench ally, said there would be "deep unease across the party" if such "progressive" policies were abandoned because of the economic downturn.

Lord Mandelson told a meeting of the economic development ministerial committee last week that he wants to identify which legislation is unnecessary in the current economic climate and so could be put on hold or axed. For example, the government may rule out proposed equality law which would have imposed equal pay audits on companies. They may also do away with the allowing councils to ban alcohol promotions.

What’s your view? - do post your comments.

A Step in Time

The Employment Appeal Tribunal has held, in Zimmer v Brezan, that a step 1 dismissal letter must state that the employer is considering dismissal. If it does not, then any resulting dismissal will be automatically unfair.

Mr Brezan was automatically unfairly dismissed because the statutory dismissal and disciplinary procedure was not followed. This was because there had been a failure to comply with step 1 as the invitation to a disciplinary meeting did not mention that there was a potential risk of dismissal as a result of the meeting.

The EAT held that even though the words of the statutory dismissal procedure did not expressly require the employer to state, in writing, that it was contemplating dismissing the employee, it was desirable to interpret the statutory procedure to include such a requirement so that its purpose is achieved.

The EAT took the view that unless the employee is on notice at the first stage that there is a risk of dismissal, the purpose of the step 1 letter in a dismissal case cannot be properly achieved. The employee should be given some idea of what the employer might be considering as a result of the meeting.

The requirement for the current “three step process” where a dismissal procedure has yet to start will be repealed taking effect from 6 April 2009. However, the three step process must be followed through by an employer if they have sent a dismissal letter by 5 April 2009. These transitional provisions are intended to allow the employee recourse if the dismissal process is underway during the changeover in statutory requirements.

From 6 April 2009 new ACAS guidelines will apply.

Ability to Proceed

A landmark ruling from the Court of Appeal means that Peter Matuszowicz, a disabled man, has been allowed to continue with his case even though it is being made outside the three-month time limit.

Mr Matuszowicz, whose right arm was amputated above the elbow, began work as a teacher at Hull Prison in September 2003 but struggled with the heavy doors of the Prison.

He was transferred to Everthorpe Prison in July 2005, where the problem persisted. After October that year, he was transferred to lighter duties, and from December 2005he was on gardening leave. In August 2006, Mr Matuszowicz transferred to Manchester City College.

On 4 October 2006, he presented a grievance under the Disability Discrimination Act 1995 to employers, Kingston upon Hull City Council. His grievance was based on several grounds, including the failure to transfer him to suitable employment. The council claimed he was making his point too late.

At a pre-hearing review, an Employment Tribunal found the complaint about failing to transfer him was not out of time, but that decision was reversed by the Appeal Tribunal in January 2008. The Court of Appeal has ruled that the onus was on the claimant to decide when something should have been done about an omission, and to bring a claim within three months of that date, so Mr Matuszowicz will be able to continue with his case.

Rachel Dineley, Employment Partner at lawyers Beachcroft LLP, comments:

“Where the employer has not deliberately omitted to take action, the employer is to be treated as having done so, in the absence of evidence to the contrary. This means an employer can still be accused of discrimination, even if they were not ‘actively’ being discriminatory / doing anything inconsistent. An employee should not, in effect, be penalised for his employer's failure to act.”

Time Out or In?

Employees’ claims against companies in administration should be accepted but put on hold pending consent from administrators, an Employment Appeal Tribunal has ruled.

Former employees of Sayers Confectioners, part of the Lyndale Food Group, which went into administration in June last year, won their case because the Tribunal should not have declared their claim as out of time.

Without the necessary consultation, the company announced that more than 30 employees were to be made redundant with immediate effect. The employees raised a claim for statutory redundancy payment and other contractual entitlements. The Employment Tribunal rejected these claims on the grounds that, under the Insolvency Act 1986, claims against companies in administration cannot be made without the administrators’ prior consent. The employees said they had applied for consent within the time limits and it was the administrators who had not responded on time.

Referring to Carr v. British International Helicopters Ltd, Judge Underhill, presiding at the Employment Appeal Tribunal said such claims should be held until the administrators reached a decision.

“I can see no reason why the decision in Carr does not apply equally in these cases,” the judge said. “I am told that the normal practice is to accept such claims but stay them pending a decision by the administrators whether to give consent.”

Carol Devereux, Regional Officer for Unite, said: “The time limit was due to expire and, in effect, the employees could not bring their claims on a technicality. I am delighted at the common sense approach to these cases, especially as the number of claims against companies in administration is only likely to increase in the near future.”

Keeping the Faith

Employers should review their policies to check they are not discriminating against religious employees. This is due to an increase in the number of faith-related Employment Tribunals. Employers should ensure that their policies do not "directly or indirectly discriminate against staff holding particular beliefs".

Religious discrimination cases went up from 486 from the 12 months to April 2006 to 600 to April 2008. This increase could be caused by confusion amongst employers. The Chartered Management Institute report states that, for example, two-thirds of employers admit to uncertainty about the faith days celebrated by staff and only 1 in 3 organisations have an explicit policy on religion and belief issues. As a result, the CMI's new guide, called ‘Religion and belief in the workplace’, aims to inform employers about different religious beliefs.

With the rise in tribunals, religion and belief issues are coming under increasing scrutiny, so the guide explores whether religion should be brought into the workplace. It also provides a brief overview of the law and discusses the business case for taking account of religion as well as the range of issues policies should cover, such as prayer time and Holy Days or festivals.

The new CMI follow the cases of a nurse suspended for offering to pray for a patient and the school secretary facing the sack after her daughter spoke about Jesus in the classroom. The incidents have heightened fears among Christians that they cannot go public with their faith at work. Employers must educate themselves about religious discrimination law and make "reasonable changes" to their companies' procedures, according to the CMI.

Andrea Williams, of the Christian Legal Centre, which supported nurse Caroline Petrie in her successful case against North Somerset Primary Care Trust over Petrie’s suspension for offering to pray for an elderly patient, gave the new guidelines a guarded welcome.

“Recent cases against Christians have shown that sometimes a well-meaning desire for equality and inclusion can have the exact opposite effect, by discriminating against those who hold to the Christian faith,” she claims. “These are key issues going to the heart of our rights, and we must have a debate around them.”

Last week it emerged that school secretary, Jennie Cain, may lose her job after emailing ten Christian friends asking them to pray for her daughter, who had been reprimanded by teachers at the school where she worked. The five-year-old was taken aside for discussing heaven and religion with a friend.

"There have been several well-publicised incidents recently which have bought issues of belief in the workplace to greater prominence,” said the CMI’s Jo Causon. "Employers need to know the law and work within it, but they also need to manage relationships to ensure organisations and their employees can thrive. It is unacceptable to discriminate on the basis of religion, belief or any other form of discrimination."