February 2008
The first newsletter of the year includes a warning that yet
again the cost of unfair dismissal has increased and penalties for employing
illegal workers will substantially increase at the end of the month. We also have unconfirmed details of increases
to SSP and SMP
rates for April this year.
In our case law review we have two important opinions from
Advocate Generals at the European Court of Justice. The first may affect carers and cause the
government to amend both disability and age legislation to include protection
on the grounds of ‘association’. The
other opinion concerns the perennial headache of what do about paid holiday
when someone is on long-term sickness absence.
Whilst we know that the statutory dispute resolution
procedures are going to be repealed we also know that this will not happen
before April 2009. In this newsletter we
report two more cases, one concerning the use of the modified procedure and the
other instructing tribunals to consider if a dismissal is automatically unfair
without the Claimant needing to advance this.
Unfair dismissal now more expensive
Unfair dismissal awards and statutory redundancy payments
increased on 1 February. The maximum
award for unfair dismissal increased to £63,000 from £60,600 and the cap on
weekly pay for redundancy has risen to £330 from £310. The maximum award for redundancy (basic award
for unfair dismissal) is now £9,900.
Click here to read the Regulations.
Note that tribunal hearings heard after 1 February but where the dismissals
were effective before will be calculated at the old rates.
Proposed increases for SSPa nd SMP
A provisional announcement has been made about the increases
in SSP and SMP, SPP and SAP
rates. The proposed increases would take
affect on 6 April assuming they receive Parliamentary approval.
Drugs and alcohol – a guide
In December just ahead of most Christmas parties the CIPD
produced a guide for managing drug and alcohol misuse. The guide covers the following issues:
·
developing a policy
·
recruitment – including health screening
·
providing support and taking disciplinary action
·
supporting the substance abuser
·
testing for drug and alcohol misuse at work
·
the legal implications
of managing drug and alcohol misuse at work.
Click here to read Managing Drug and Alcohol Misuse at
Work: A guide for people management professionals.
If your company had issues last Christmas you may want to review the guide now
so that you are better prepared for this year!
Increased penalties for employing illegal workers
From 29 February 2008 employers who knowingly employee
illegal workers could face a prison sentence or be subjected to an unlimited
fine. Those employers who negligently
hire illegal workers face fines of up £10,000 – double the current
penalty. The size of fines will be
influenced by the following factors:
- the
thoroughness of the employers’ checks, and
- the
number of penalties or warnings issued to the employer in the previous
three years, and
- whether or not the employer cooperated with the Border
and Immigration Agency.
Further changes in the next 12 months will see the introduction
of compulsory ID cards for all foreign workers and an Australian-style
points-based immigration system. Click
here to read The Immigration (Restrictions on Employment) Order 2007.
Click here to read The Immigration (Employment of Adults
Subject to Immigration Control) (Maximum Penalty) Order 2008.
Employment Judges replace Chairmen
Since 1 December Employment Tribunal Chairmen are to be
known as Employment Judges. The change
is contained in The Tribunals, Courts and Enforcement Act 2007.
Agency workers to receive greater protection
The Conduct of Employment Agencies and Employment Businesses
(Amendment) Regulations 2007 has been published. The BERR has conducted consultation on
ensuring the most vulnerable workers are protected. The new legislation contains the following provisions
that provide that:
- agencies
or employment businesses must ensure that a ‘work-seeker’ who takes up
additional services, such as accommodation, will be able to give notice to
cancel or withdraw from those services without incurring any detriment or
penalty
- agencies
or employment businesses must give ‘work-seekers’ a statement of his or
her right to cancel or withdraw from additional services; and
- additional protection is available to ‘work-seekers’
where agencies propose to charge fees for the inclusion of information
about them in a publication.
The legislation will come into force on 1 April 2008.
Click here to read the Regulations.
Case law review
Flexibility for more carers a
step closer?
Coleman v
Attridge Law and Steve Law - The Advocate General (of the
European Court of Justice (ECJ)) has handed down an important opinion in the
above case. The case concerns C's claim that she was discriminated
against when she requested flexible working arrangements to look after her
disabled son. An employment tribunal referred the question of
whether protection from disability discrimination under the EC Equal Treatment
Framework Directive extends to those not themselves disabled but closely
associated with a disabled person. The Advocate General has stated that
the Directive prohibits discrimination and harassment by association.
The Advocate General's opinion is usually,
but not always, followed by the ECJ.
If the ECJ agrees with the Advocate General it may require
the Government to amend the Employment Equality (Age) Regulations as well. The age Regulations do
not provide protection on the basis of association and so they are potentially
in breach of the Equal Treatment Directive.
Agency workers – cases stayed
The President of the Employment Tribunals has issued a
practice direction stating that all cases concerning the employment status of
agency workers should be stayed until the decision of the Court of Appeal (CoA)
in James v Greenwich
Council. The decision of the
Employment Appeal Tribunal (EAT) in James
had cast doubt on the CoA judgement in the Dacas case,
implying agency workers acquire employment rights if assignments lasted for
longer than 12-months.
James was actually heard in October 2007 and we are
still awaiting the decision. We will of
course report James as soon as a decision is published. To make sure you are the first to know we
suggest that you register with our Hot News service.
Tribunals must consider if dismissal automatically unfair
Mr A Venniri v Autodex Ltd – The EAT has ruled in considering the fairness of a dismissal the employment
tribunal must consider whether the dismissal is automatically unfair under the
statutory dismissal procedures. The
Employment Rights Act 1996 was amended by inserting s98A(1) which makes a
dismissal automatically unfair if the statutory dismissal procedure was
relevant and it was the employers fault that it was not complied with. The EAT has indicated that it is not for the Claimant to argue or make the
point but it falls for the tribunal to consider whether the statutory
procedures have been complied with by the employer.
TUPE does not give extra rights
Ms A Jackson v Computershare Investor Services plc –
The CoA has ruled that the TUPE Regulations cannot confer additional rights to
a transferring employee that they were not entitled to at the date of the
transfer. J was employed by Ci (UK) Ltd
– which did not have a severance scheme – in 1999. J transferred to CIS plc in 2004. CIS plc had in place a severance scheme that
was more generous if you had commenced work prior to 1 March 2002.
When CIS plc made J redundant in 2005 they used 1999 for continuous
service but only paid enhanced benefits from 2004, from the time J had actually
joined CIS plc. J complained that she
should have been considered to have joined CIS plc in 1999 and had the benefit
of the enhanced scheme. Whilst the
employment tribunal agreed with her claim both the EAT
and CoA have held that TUPE cannot create rights that do not exist at the date
of transfer. The Regulations are
designed to preserve rights not to increase an employee’s rights.
Tribunals not to speculate on disability
Richmond
Adult Community
College v Ms E Dougall – The Court of
Appeal (CoA) has overturned an Employment Appeal Tribunal (EAT)
decision we originally reported in September 2007. D was diagnosed as suffering from a
persistent delusional disorder which whilst it is a lifelong condition
she had not suffered an episode for three years. Her consultant psychiatrist had considered
that she would be able to work. Having
been offered employment by RACC it was withdrawn when they discovered that she
had previously been sectioned. As a
result of the withdrawal she had another episode which required her to be
sectioned again. The EAT
held that D was disabled because it was fact that the condition had recurred
and this was known at the original employment tribunal. The CoA has held that a tribunal cannot be
expected to speculate what may happen but to base their decision on what is
known at the time the incident occurs.
At the time RACC withdrew the offer from D it was not considered likely
that the condition would recur. The CoA
have held that subsequent events cannot be taken into account when considering
whether is disabled.
Risk of using modified dismissal procedure
At klc we have always advised clients to be very careful
about using the modified statutory dismissal procedure. The case below highlights the risk in
adopting the modified procedure. The
modified procedure can only be used for gross misconduct dismissals.
Mr S O’Neil v Wooldridge Ecotech Limited – The EAT
has held that a dismissal was automatically unfair as the dismissal, under the
modified statutory dismissal procedure, did not take place until the day after
the alleged incident. The Regulations
provide that dismissal should occur ‘at the time the employer became aware of
the conduct or immediately thereafter’.
In addition the letter confirming the dismissal failed to meet the
statutory requirements in that it did not set out the alleged misconduct and
reasons why the employer thought the employee was guilty of the alleged
misconduct.
The employer not content with being in breach of the
statutory dispute resolution procedures then added insult to injury by ensuring
the dismissal was ordinarily unfair in the manner in which it dealt with the
dismissal and appeal. It was further
held that the dismissal was unfair as the dismissing manager, was a witness to
the allegation, the investigator and before dismissing discussed this with
senior management. Further at the appeal
stage the senior manager hearing the appeal discussed his decision with the
dismissing manager and another senior manager who had been consulted about the
dismissal. Effectively a panel of three
discussed the dismissal and the same panel discussed the appeal against the
dismissal.
Paid sick holiday and long-term sick leave
Stringer & ors v HMRC (previously Commissioners
of Inland Revenue v Ainsworth) – The Advocate General has expressed the
view that paid annual leave continues to accrue whilst someone is absent from
work due to sickness, even where they are absent for the whole leave year. The Advocate General has suggested that it
would be for national government’s to put a framework in place to allow for the
carry-over of leave and within what timescale the leave would need to be
taken. This will mean that workers who
have been off sick since the start of the holiday year and then leave then company
will be entitled to a payment in lieu for the holiday pay. The ruling though does prevent a worker from
taking paid holiday whilst they remain sick – the worker will either need to
return to work or leave to receive either the paid holiday or a payment in
lieu.
This opinion from the Advocate General applies to the
minimum entitlement under the Working Time Regulations, currently 4.8 weeks (24
days).
Readers should note that while the ECJ have not as yet ruled
on the matter the court follows the opinion of Advocate Generals in 80% of cases. |
