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."