£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.