Professional Documents
Culture Documents
2014/15 BUDGET HOW DOES THE 2014/15 BUDGET AFFECT YOUR BUSINESS?
ZERO HOUR CONTRACTS WE LOOK AT THE DEBATE SURROUNDING ZERO HOUR CONTRACTS
A new survey reveals that 1 in 4 new fathers do not take parental leave
We use the ONS latest statistics to look at the most common reasons for absences
BUDGET 2014/15
FOCUS
contents
EMPLOYMENTMATTERS
EDITORS LETTER
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EDITOR LETTER
APRIL FOOLS
Harmless fun or grounds for dismissal? We look how four cases ended in dismissal.
EMPLOYMENT UPDATES
Employment Solicitor Rachel Hughes looks at some of the changes coming into force in April.
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Employment Updates For 6th April
We give you 10 reasons why your business needs to Aventi Employment Solutions.
SICKNESS ABSENCES
Figures from the ONS reveal some interesting statistics on sickness absences in 2013.
1 IN 4 NEW FATHERS
A survey reveals that 1 in 4 new fathers are not taking paternity leave.
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EMPLOYMENTMATTERS ISSUE APRIL 2014
We look at the key points from the 2014/5 budget delivered by the Chancellor.
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2014/15 Budget
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EDITORS LETTER
by
RICHARD BURNETT
Editor
EMPLOYMENTMATTERS
Welcome
Welcome to the second edition of Employment Matters Magazine - a dedicated employment magazine written for employers and business owners.
April Updates
On the 6th April we will see several important employment law updates coming into force including increases in maternity and paternity statutory rates and in compensation awards.
FREE Downloads
Our website continues to be a valuable resource for employers with free employment guides and employment letter templates available to download. Weve added three new guides and new letter templates this month. Some of the guides and letter templates you can download include: ll Gross Misconduct ll Employee Appraisals ll Planning an Interview ll Disciplinary Download them from: employment-lawuk.co.uk
Aventi Employment Solutions Murlain House Union Street Chester Cheshire CH1 1QP
April Fools
No-one quite knows where April Fools Day comes from, but the day of pranks and practical jokes provides employers with a timely reminder of employee discipline. We look at four cases where jokes have ended in dismissal for the employees.
APRIL FOOLS
by
Employment Solicitor
RACHEL HUGHES
pril Fools Day is an opportune moment to be reminded that what might be harmless fun for some employees may count as bullying or misconduct for others. We list some of the four worst prank and practical joke that have ended in dismissal:
April Fools
the decision in part because of the employer`s comprehensive bullying and harassment policy, which the manager had breached. The manager was fully aware of the policy and was in fact responsible for informing the employees in his team about the policy.
joke, adding that he had been unfairly dismissed and his human rights (under articles of the European Convention on Human Rights) had been violated. The tribunal turned down the appeal adding that his Facebook comments had contravened the companys dignity at work policy and had intended to create a humiliating work environment for the female employee.
EMPLOYMENT UPDATES
n the 6th of April there are several important law updates coming in force that will affect your business. Below is a summary of what you can expect:
In cases where several workers bring a claim together against the same employer, each of these claims will potentially give rise to a separate penalty. In circumstances such as this, the minimum 100 penalty will apply to the amount of the penalties in total but the maximum 5,000 will apply to each of the penalties/claims individually. Penalties should be paid to the Secretary of State, alongside any compensation to be paid to the employee.
overarching limit of an individuals annual salary. The change will also mean an increase in the maximum for a weeks pay, which will increase from 450 to 464.
Compensation Awards
The Employment Rights (Increase of Limits) Order 2014 comes into force on 6th April, which means there will be an increase in the maximum compensatory award for claimants of unfair dismissal from 74,200 to 76,574, subject to the
Type B claims attracting higher fees (250 issue fee and 950 hearing fee for a single claimant): ll Equal pay ll Sex equality in pension schemes ll Failure to inform or consult under TUPE ll Failure to allow compensatory rest under the Working Time Regulations 1998 ll Breach of the right to request time off for training This update is to change what the government says is a mistake in the original legislation which categorised these claims as Type A, bringing with it lower fees of a 160 issue fee and 230 hearing fee. The Order also modifies errors in current legislation regarding the definition of excluded benefits relating to fee remissions.
Companies will therefore need to be aware of legitimate requests which might fall into this bracket and could later be contained in letters.
before they are permitted to bring a claim to the Tribunal. ACAS will endeavour to then conciliate a settlement; however both parties will still be at liberty to decline participation in this process. All claims that fall within Early Conciliation will need a certificate from ACAS before the claim is processed by the Tribunal.
Statutory Discrimination
On 6th April statutory discrimination questionnaires will be eliminated. It is important to note that the change will not prevent those who believe they may have been discriminated against from seeking information regarding the discrimination against them. In cases where the employer does not provide sufficient information regarding the discrimination then the case could still go to tribunal which could, in some cases, result in a discrimination claim against the employer.
Early Conciliation
An initially voluntary process of Early Conciliation will be introduced on 6th April, meaning that all requests for conciliation through ACAS will be treated as Early Conciliation on or after this date. Although it is voluntary, employers should think ahead now and consider how they will respond to ACAS when they make contact, such as allocating a particular member of staff (perhaps in the HR team) as the key contact for these calls. Looking ahead to 6th May 2014, most claimants will be required to notify ACAS
More Information
There are many changes coming in on 6th April; if you would like some advice, contact our experienced team of employment solicitors today and we can talk you through the changes you will need to make. Visit our dedicated website www.employment-lawuk.co.uk for more information or call 08444 177 177.
AVENTI EMPLOYMENT
by
Employment Solicitor
RACHEL HUGHES
his month solicitors Hillyer McKeown relaunch their fixed fee support service for employers Aventi Employment Solutions. We look at 10 reasons why your business needs Aventi Employment Solutions:
10 Reasons
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Support: You will have unlimited access to specialist employment solicitors who can support all your employment and HR needs with complete and commercially sound legal advice. Protection: Aventis unique Legal Expenses cover ensures that your business is protected from expensive tribunal claims. Improve Cash Flow: Aventi is a xed fee service so you know exactly how much it is going to cost and can budget for the nancial year knowing that all your employment and HR advice is covered. Save Management Time: Knowing that your Managers have the resource to resolve employment and HR queries quickly and professionally will allow them to spend more time focusing on the growth and improvement of your business. Compliance: Aventi will keep you and your documentation up to date with any changes and developments so you have all your ducks in a row! Aventi also offers health and safety support to ensure you fully comply with your H&S obligations. Personal Service: Aventi gives you direct and speedy access to a specialist employment solicitor who will take the time to get to know you and your business personally. Unlike other schemes Aventi does not have a call centre. Our Aventi Service is delivered by our technically excellent qualied employment solicitors.
aventi
LEGAL SOLUTIONS
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Legal Privilege: We are solicitors therefore you will never need to disclose our advice in any court case or tribunal proceedings. Advice given by a non-solicitor or consultant is always subject to disclosure to a court, no matter how damaging the consequences to you and your business.
Insurance: Aventis unique Legal Expenses cover ensures that your business is protected from expensive tribunal claims. A key feature is that you are not compelled to take our advice about an issue to be covered by the insurance. The small print with other schemes says you must take advice every step of the way and follow the advice to have the full benet of the insurance cover; with Aventi Employment Solutions we offer a pragmatic and commercial approach which allows you to run your business as you see t and still have the benet of the cover.
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No handcuffs: You will not be tied in to a long contract. We are so condent that you will benet from our service and renew, you can take Aventi for just 12 months (unlike other schemes which require a 3 or 5 year commitment).
Full Service: Our excellent reputation for quality service is supported by a full service Commercial Law Firm. As part of Hillyer McKeown LLP we can offer you access to the full range of commercial legal services to complement every aspect of your business, from buying and selling commercial property, to dealing with intellectual property issues, handling commercial disputes, preparing effective terms of business, debt recovery and everything in between.
Employment Solicitor
RACHEL HUGHES
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EMPLOYMENTMATTERS ISSUE APRIL 2014
igures released by the Ofce for National Statistics (ONS) have revealed some interesting statistics on sickness absence during 2013. The ONS reported that in 2013, 131 million sick days were taken by employees in the UK. Some of the biggest reasons included: ll 31 million days of sickness absence were taken in 2013 as a result of back, neck and muscle pain. ll 27 million days were lost as a result of minor illnesses, such as colds. ll 15 million days of absence were taken due to mental illness, such as stress, depression and anxiety.
Sickness absence rates were lower in the private sector in the past year but the gap has narrowed between the public and private sector over the last 20 years. In an analysis of the larger public sector organisations, the health sector saw the highest rates of sickness. Managers, directors and senior ofcials are less likely to take absence due to sickness, according to latest gures.
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PATERNITY LEAVE
by
SARAH LOWE
Features Editor
two weeks paid paternity leave, however additional leave is given if the childs mother goes back to work and isnt claiming statutory maternity pay. Last month, BBC Radio 5 Live heard from Alex Jackson, head of policy at the Forum for Private Business, who said that whilst parental leave is accepted by smaller businesses, issues arise in how the company replace lost skills and if businesses choose to outsource to agencies or spend time training up staff from other teams to cover the absence. Justine Watkinson, Partner and Head of Employment Law at Hillyer McKeown, said: This is an area of law that affects many fathers and demonstrates that whilst the government may have
legislated to give fathers, in principle, the right to take time off after the birth of their baby, if employers frown upon this and or do not positively encourage this type of behaviour at grass root levels then the legislation will not change habits. Ultimately employers who encourage positive and supportive flexible family friendly policies will be the ones who see the best returns from their employees, Justine continued. Employers who do this will find that their employees will be more supportive and engaged and will go that extra mile for the business.
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The governments consultation on zero hours contracts, which launched in December 2013, has received more than 30,000 responses and prompted several statements from key employment organisations. The consultation, which closed on 13th March 2014, set out to identify the issues associated with zero hours contracts and assess the advantages of using them from the view of both the employer and the individual. The consultation invited views on potential options for the government and employers and has since seen responses from ACAS and CIPD. ACAS, who along with the CIPD has published its full response to the consultation online, has commented that exclusivity clauses in the contracts are likely to damage relations between the employer and the employee, and calls for new guidance to be issued on the contracts. It suggests that doing this will ensure that both employers and employees are clear on their working arrangements from the start. ACAS states: We believe that zero hours contracts with exclusivity clauses where there is no guarantee of work are likely to have a negative impact on employment relations. But an analysis of calls to our helpline shows that workers on any type of zero hours contract feel a wider sense of exclusion too.
hours contracts is a tricky one. Clearly these contracts have benetted both employers and employees during difcult trading times
Justine Watkinson takes us through the latest on the debate on Zero Hours Contracts
ACAS added: Our response today recommends new guidance on zero hours contracts so that both employees and employers are very clear on the working arrangements they are agreeing to. We also feel that more research is needed into the use of contractual arrangements in certain sectors of the economy. The organisation suggests that workers on zero hours contracts develop a deep rooted effective exclusivity as a result of their inconsistent hours and are afraid of turning down hours or raising questions about their employment rights for fear that their hours are reduced or worse, withdrawn. ACAS suggest this uncertainty can be very damaging to trust and to the employment relationship.
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CIPD, on the other hand, has gone a step further in its response to the consultation and recommends that the government put forward a complete ban on exclusivity clauses in zero hours contacts unless the employer can demonstrate that there is a compelling business reason for this type of contract to be in place. Ben Willmott, Head of Public Policy at CIPD, said: We are recommending that exclusivity clauses should be outlawed unless there is a justifiable and compelling business case for them to be used, for instance where an employee working for a competitor may result in the loss of commercially sensitive or valuable information. The nature of zero hours employment means that some people on these arrangements might have more than one job and so it is unfair for employers to require that zero hours staff cant work for other organisations when they cannot provide work, except in very specific circumstances. Wed also like to see workers who have been working for an employer for 12 months or more given the right to request a minimum number of working hours per week. Justine Watkinson, Partner and Head of Employment Law at Hillyer McKeown, comments: The subject of zero hours contracts is a tricky one. Clearly these contracts have benefitted both employers and employees during difficult trading times over the last few years but as the economy improves and employees gain more influence due to supply and demand, these contracts will fall out of favour. This will particularly be in relation to exclusivity clauses which do inhibit employees rights to take a number of different positions and in principle do push the boundaries. It will be interesting to see how the Government responds to this issue over the next few months.
As the economy improves and employees gain more inuence due to supply and demand, these contracts will fall out of favour.
More Information
If you have a question about zero hour contracts then get in touch through our website employment-lawuk.co.uk or email enquiries@law.uk.com.
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2014/15 BUDGET
Dual Contracts
The Finance Bill 2014 will combat the use of artificial dual contracts by non-domiciled employees. However, following consultation there will be some technical changes to the draft legislation. These proposals were published for consultation in January 2014. Following the consultation, the government has decided: ll To exclude dual contracts that are not motivated by tax avoidance ll To exclude directors who own less than 5% of their employers companys shares ll To exclude income which was earned before 6th April 2014 ll To take account of employments held for legal or regulatory reasons ll To reduce the threshold in the comparative tax rate from 33.75% to 29.25%
These changes should target the new rules more closely on dual contracts that are created for tax avoidance rather than commercial purposes.
Apprenticeships
There will be an extension of the Apprenticeship Grants for Employers scheme, providing grants for employers for an additional 100,000 apprenticeships by 2015-16.
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providing incentives through the level of the van benefit charge. For 2015, the fuel benefit charge multiplier for both cars and vans will increase by the RPI and will be determined in September 2014.
will be able to continue to participate in the employer schemes for as long as the employer offers it, or may switch to the new scheme. Once the new scheme has commenced, employer-supported schemes will be closed to new entrants. A working family will not be able to participate in both an employer-supported scheme and the new scheme. However, the provision of workplace nurseries by employers will not be affected by the introduction of the new scheme and families will be able to benefit from both. The new scheme will not depend on participation by employers but employers may have some limited involvement if they wish (for example, in an information or payment provider role). For more information on these changes, please contact our employment team through our website www.employment-lawuk.co.uk.
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DISMISSALS
by
SARAH LOWE
Features Editor
man, who was employed for 35 years by Dundee City Council in their contracts services department, was repeatedly signed off sick for eight weeks at a time by his doctor and the occupational health assessment services (OH) throughout his absence; the OH stating that he was on the correct treatment but was seeing no improvement in his symptoms. In June 2009, the council asked if the OH could give a report written by a doctor rather than a nurse, as they felt the occupational health reports were formulaic and gave no clear indication of the mans progress. The OH did not receive or action this message and so when the next assessment took place in July 2009, it was once again carried out by a nurse who gave the same advice as before. The council met with the employee the following month to speak about his condition and a possible return to work. He was given a return date of 14th September 2009 and the council indicated that it may consider terminating his employment if he did not return on this date. The employee was offered a chance to appeal this however he chose not to. On 11th September, the man was seen by an OH doctor who said he was showing signs of improvement and should expect to return to work within one to three months, but this was dependent on when his GP signed him fit. The man was signed off sick for a further four weeks by his GP and did not return to work on 14th September.
The man brought a claim in the employment tribunal for unfair dismissal, seeking reinstatement. The tribunal ruled that he had been unfairly dismissed, stating that the employer hadnt conducted a sufficient investigation into his health and that a further medical report should have been obtained regarding the prospect of his return. There was a duty to conduct a more thorough investigation, the court said, given his length of service. The council appealed against the finding and the Employment Appeal Tribunal (EAT) held that the tribunal had imposed a very high standard of investigation on the employer and that the length of service was not relevant to the investigation. It said the case should be remitted for the tribunal to look at the key question of whether the council could be expected to wait any longer in deciding to dismiss him. The employee appealed to the Inner Court regarding the decision of the EAT to overturn the judgement, however the Inner House agreed with the EAT regarding how the tribunal had approached the matter and agreed that the case should be remitted. It said that the tribunal had failed to give sufficient regard to some of the key principles of the case, which are: ll Raising the question of whether an employer can be expected to wait any longer to dismiss an employee in cases of long-term sickness. ll Consulting an employee to take his/her views into account. ll Understanding the medical position of the employee, however the employer itself is not required to pursue a detailed medical examination. While this case highlights that an employer is permitted to take a medical report at face value, however vague or unhelpful, if an employer looks to clarify the medical position earlier, this will normally lead to better decisions being made. Arguably in this case, the poor quality of the information provided had a negative impact on the employers decision-making, giving rise to points which were ripe for appeal. The nature of the reporting provided by a nurse could have possibly been challenged earlier, which may have meant matters could have been brought to a head sooner.
A meeting was organised on 23rd September to consult the man about a proposed dismissal for ill-health. He indicated during the meeting that he did not feel he was getting any better and taking this into account, along with the latest OH opinion, the council made the decision to dismiss him on the basis that a return to work in the near future seemed unlikely and that there was no light at the end of the tunnel. The man appealed against this decision but was unsuccessful.
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COVERT RECORDINGS
by
SARAH LOWE
Features Editor
Covert
Recordings
In that case, the EAT was asked to rule on whether a covert recording of a disciplinary hearing and the private deliberations of the disciplinary panel was admissible in evidence. The claimant in this case had been dismissed for gross misconduct and issued a claim of unfair dismissal in the employment tribunal. Following the standard disclosure order, the claimants lay representative disclosed a large number of documents, including three records of the disciplinary and appeal hearings, including the panel of Governors deliberations. The fact that the claimant had made these recordings of her employer without the panels knowledge or consent became apparent at the tribunal hearing, which was then adjourned. However, the employment tribunal ruled that the claimant would be able to admit the recordings of the main hearings as evidence, if she disclosed the actual recordings and transcripts, before the rescheduled hearing. The respondent sought a review of the employment tribunals decision and argued at the EAT that the recordings should not be admitted on several grounds. The argument that there was a breach of their human rights (the Governors right to respect for private and family life), as the Governors were performing a quasi-public function and could not rely on such privacy. The EAT also found that the recordings could not be excluded on the grounds that they had been made illegally, unless it could be shown that there was authority for that, or there were public policy reasons to exclude them for example, the recordings were made in breach of contract or in breach of any statutory provision. There were no such provisions in this case and the claimant was able to argue that her right to a fair hearing on the best available evidence would be compromised if the recordings were excluded.
With an increase in the number of employees recording meetings with the intention of using them at tribunal we look at the implications these recordings have for employers.
t has been reported that some employees are secretly recording meetings with managers with the intention of using them as evidence at employment tribunals. With the prevalence of sophisticated portable recording devices (including on many mobile phones) its a trend that looks likely to continue. As an employer you may well wonder if such a practice is fair or reasonable. Certainly, tribunals described covert recording as a very distasteful and discreditable practice. However, case law suggests that this in itself may not be enough to make them inadmissible as evidence. If an employee hides a tape recorder and captures comments made during his employers private deliberations during a grievance and disciplinary hearing, is that evidence admissible in an employment tribunal? Normally yes, especially if it does not form part of the employers deliberations on the matters in question, held the Employment Appeal Tribunal (EAT) in Punjab National Bank v Gosain. In this case, the employer was alleged to have made wholly inappropriate comments about the employee when she was out the room; these had (allegedly) been captured on a covert recording. The EAT stated that the correct test is to undertake a balancing exercise, setting the general rule of admissibility of relevant evidence against the public policy interest in preserving the confidentiality of private deliberations in the internal grievance/disciplinary context. The employment judge had correctly distinguished Amwell View School Governors v Dogherty, as the private material recorded in this case fell well outside the area of legitimate consideration of matters within the grievance and disciplinary panels remit.
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it. As an aside, last month the EAT separately upheld a decision to award costs against the Claimant in this case (estimated to be around 87,000), despite the fact she was unemployed and unrepresented before the tribunal. Covert recording of private deliberations may not be admissible due to public policy reasons. The case law in this area suggests, however, that even these deliberations may be admissible if the employee involved says that they are the only evidence of alleged discrimination. There are no specific rules for employment tribunals about the admissibility of covertly obtained evidence. Instead, the employment tribunal has a wide discretion over whether to allow evidence to be considered. If the evidence is relevant and it would be proportionate to allow it, then it may be admitted. However, the employment tribunal may still order that such evidence be excluded, if it is disclosed late; would breach the Human Rights Act 1998; or should be excluded as a matter of public policy. Employers may want to prohibit recording in their procedures and policies, but experts suggest that this wont deter some. Better advice, they maintain, is for managers to assume they are being recorded and to remember that what they are saying may be admitted as evidence in a tribunal. Better still would be to cultivate an open and supportive atmosphere in the workplace, where disagreements are dealt with swiftly and sensitively before getting out of hand. Where theres trust and mutual respect, employees would not feel any need to make secret recordings.
The EAT held that an employee who covertly recorded her own disciplinary hearing could use the recording in evidence before the tribunal, but that her covert recording of the private deliberations of the disciplinary panel was not admissible on grounds of public policy. There was a public interest in maintaining respect for the private deliberations of a disciplinary panel. More recently, in February 2013, the EAT considered the case of Vaughan v London Borough of Lewisham UKEAT/0534/12, which involved arguments relating to the claimants application to adduce in evidence 39 hours of recordings she had made of her interactions with managers and colleagues, to support her claims of disability discrimination, victimisation and harassment, whistleblower detriment and unfair dismissal. The recordings included recordings of disciplinary hearings, where the employer made official notes, the accuracy of which were disputed by the claimant. The claimant in this case did not supply copies of the transcripts, nor the tapes (which were actually held on an iPod) and the employment tribunal rejected her application to submit the recordings as evidence, on the grounds that she had not shown
that they were of probative value. The EAT acknowledged the correctness of this decision as the claimant refused to provide the recordings and transcripts, but decided that there was no absolute reason why none of the recordings should be admitted in evidence, as parts of them could be potentially relevant to the issues and ought to be admitted in the interests of justice. In his judgment, the Honourable Mr Justice Underhill made this comment: We should saythat the practice of making secret recordings in this way is, to put it no higher, very distasteful; but employees such as the claimant will no doubt say that it is a necessary step in order to expose injustice. Perhaps they are sometimes right, but the respondent has already made it clear that it will rely on the claimants conduct in making these covert recordings, as illustrative of the way in which her conduct had destroyed any relationship of trust and confidence between her and it. The EAT also recognised that the respondent in this case would rely on the claimants recordings as evidence as to her credibility, since she had been asked on previous occasions whether she had made such recordings and had denied
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