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Holiday
provisions finalised
The long heralded changes to the Working Time Regulations were
finally passed on 19 July 2007. As expected, the increase from 20 to 28
days will take place in two phases, with 4 additional days from 1 October
2007 and a further 4 days from 1 April 2009.
Gordon Brown's legislative programme - more red tape?
The Government recently announced its draft Legislative Programme which
includes an Employment Simplification Bill. The Bill is not yet available,
but a summary of it sets out that it will deliver simpler and fairer enforcement
of the National Minimum Wage, amend the law relating to the resolution
of disputes in the workplace, and strengthen the enforcement of employment
agency standards. We are likely to get more detail around the time of
the Queen's speech.
Statutory
dispute procedures - on the way out?
The Gibbons review of the statutory dispute procedures was clear in it's
main finding - the procedures should be repealed in their entirety. The
Government subsequently issued a consultation paper on the Gibbons findings
and we have responded to that. We supported the proposal to repeal the
procedures and also pushed for Tribunals to make greater use of their
powers to strike out weak claims and deal more firmly with parties who
fail to comply with Tribunal orders. For our full response, please click
here.
Transfer
of maternity leave to fathers
The Government has recently been consulting on how best to implement the
proposal to transfer unused maternity leave and pay from mother to father
during maternity leave.
The basic Government proposals are:
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To qualify for additional
paternity leave (APL) and additional statutory paternity pay (ASPP),
fathers must have 26 weeks' continuous employment ending the 15th
week before the expected week of childbirth. |
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The father and the mother
should self-certify to the father's employer that the father is eligible
for APL and ASPP (i.e. that the mother is returning to work early
and passing her maternity entitlements over to the father). There
would be no need for the mother's employer or HMRC to be involved
in the process however HMRC will carry out occasional random checks
to detect and prevent fraud. |
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APL will be in addition
to the current entitlement to 2 weeks' paternity leave (which will
be renamed ordinary paternity leave). |
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The father will be required
to give 8 weeks' notice of his intention to take APL. |
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ASPP will be payable for
the whole of the APL and will be calculated on the same basis as statutory
paternity pay. |
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Fathers on APL will be entitled
to take 10 keeping in touch days, in the same way as was introduced
for women giving birth after April 2007. |
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Although the term "father"
is used throughout the consultation paper, APL and ASPP will also
be available to partners (of either sex) of mothers and members of
adopting couples who are employed and who qualify for statutory adoption
leave and pay. |
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Where there is a change
in circumstances that could affect entitlement to APL and ASPP and
it is not reasonably practicable to cope with a late change, the employer
can require an employee to take APL, potentially without ASPP. |
It is not anticipated that any changes will
be made before April 2009 at the earliest.
Benefits
during maternity leave
There has been an argument put forward in the legal press that as SMP
is now paid during some of AML employees are entitled to employment-related
benefit schemes (e.g. PHI, life insurance) during this time under the
Social Security Act 1989. Employers may therefore wish to consider extending
these benefits but our advice is that at the moment this argument is academic
and has not yet been tested.
Heyday
challenge to age regulations - questions for ECJ finalised
The questions to be referred to the ECJ in the Heyday challenge to the
Age Regulations have, after some delay, now been finalised. Heyday is
essentially challenging the inclusion of a mandatory retirement age in
the Age Regulations which it says is incompatible with the EU Directive.
It is also challenging, amongst other issues relating to justification,
the regulation which does not require employers to give reasons for refusing
to let an employee work past 65. It is unlikely, however, that the ECJ's
decision will be made before 2009.
In the meantime, it has been reported that lawyers acting for Heyday are
going to ask the President of the Employment Tribunal Service to stay
all age discrimination claims relating to those over 65 pending the ECJ's
decision in Heyday.
Smoke free -
are you complying?
As you will be aware on 1 July workplaces and enclosed public spaces in
the UK became smoke-free. Whilst many offices were already smoke-free,
the ban also requires signage, and means that many company vehicles need
to be smoke-free. For guidance on the new provisions, please click
here.
Resignation
or dismissal?
In Sandhu v Jan de Rijk Transport
Ltd the Court of Appeal considered whether an employee had resigned
or was dismissed when he entered into a severance agreement at the meeting
where he was told he was going to be dismissed.
Mr Sandhu was asked to attend a meeting by his employer Jan de Rijk ("Rijk")
on 6 December 2002. He was not told what the meeting was about, although
there were allegations of misconduct. The parties later disputed what
was said at the meeting but it was agreed that it was made clear that
his contract was going to end. After the meeting he was sent a letter
stating that it was agreed that he would work until 9 December, keep his
company car until the end of January 2003 and that his employment would
terminate on 1 April 2003. However, a staff update later issued by Rijk
stated that he had left "with immediate effect" and that it
was a mutually agreed termination. Mr Sandhu argued that there was no
mutual termination and he brought a claim for unfair dismissal. The employer
contended he was not dismissed but had resigned having negotiated satisfactory
severance terms. The tribunal and EAT agreed. Mr Sandhu appealed to the
Court of Appeal.
The Court of Appeal commented that there were no previous cases which
dealt with the situation where everything had been concluded at one meeting.
It noted that resignation itself must involve some form of negotiation
and discussion which leads to a genuine choice on the part of the employee.
Mr Sandhu had received no advance notification of what the meeting would
be about, he did not have the opportunity to take any advice and he had
been given no time to reflect. Therefore, it seemed that his resignation
had not been negotiated freely but was the result of trying to get the
best possible outcome from the inevitable dismissal. In addition, the
severance terms were not particularly favourable to him and the wording
of the letter was consistent with a dismissal rather than resignation
as it referred to Rijk terminating his contract. The case was remitted
to a different tribunal to consider his claim for unfair dismissal.
The advice to employers is that in order to negotiate the termination
of an employee's employment by mutual consent it should ensure that nothing
is concluded at the initial meeting. The employee should be given advance
warning of what the meeting is about, given the opportunity to take advice
and time to reflect.
This case relates to events before the statutory dismissal and disciplinary
procedures were implemented. However, employers should now ensure that
the statutory procedures are followed particularly if there is a risk
that the employee could be said to have been dismissed.
Dispute
resolution procedures - the confusion continues
Whilst it seems likely that as a result of the Gibbons review (see In
The News section), the statutory disciplinary and dismissal procedures
will eventually be repealed, that will provide little comfort to employers
currently grappling with the continued confusion the Regulations throw
up. The case of Harris v Towergate London Market Ltd is
yet another example of how the interpretation of the Regulations is dominating
the Tribunals.
Ms Harris was made redundant and sent her
employers a "grievance" challenging her dismissal. She subsequently
issued a claim, but outside the initial 3 month time limit. Under the
statutory procedures, there was no requirement to send a grievance prior
to issuing the claim, as the claim related to her dismissal, so there
would be no extension of time under the grievance procedures. So was her
claim out of time?
Mrs Harris did not appeal against her dismissal
under her employer's internal procedures, which permitted her to do so
within 7 days. She subsequently contacted her union who arranged for a
meeting between Mrs Harris and the HR Manager. The HR Manager, Ms Thomas,
took notes and agreed to provide Mrs Harris with a copy of the assessment
form and some other information used in the assessment process. Whilst
Mrs Harris did not specifically ask for an appeal, Ms Thomas's notes recorded
that someone in the Union would review the forms to decide if the process
had been fair and they would inform the employer if the matter was going
to be taken further.
When Mrs Harris received the additional information,
she wrote to her employer raising a formal grievance in January 2006.
In April 2006, she lodged a claim form with the Tribunal. Clearly, the
initial limitation period of 3 months had expired in January 2006. Whilst
the Tribunal found that her claim was out of time, the EAT found that
the time limit was extended as Mrs Harris had "reasonable grounds
for believing… that a dismissal… procedure… was being followed".
This would therefore give her an extension of time under the Regulations
and her claim was within time. It was the fact that the EAT classed her
letter as an "appeal against dismissal", rather than a "grievance",
that enabled her to take advantage of the additional time limits on the
basis that the disciplinary/ dismissal procedure was ongoing.
Who
owns the contact list?
When an employee goes to work for a competing business, one area that
often leads to heated debate is who owns the contact list. What happens
where an employee merges lists of contacts and personal contacts that
he had prior to joining the employer, with contacts subsequently made
during employment? In Penwell Publishing (UK) Ltd v Isles and Others,
the Court found that where the employee maintained just one list on the
employer's computer, that database or list of information belonged to
the employer.
Mr Isles was a Journalist, he created and
kept all his contacts on his employer's computer system and the High Court
held that that database belonged to the employer. This included personal
contacts and business contacts which Mr Isles had prior to joining the
Company. The Court made clear that had the employee kept a separate list
of contacts and selectively copied those which he regarded as long term
or journalistic contacts (as opposed to those which would also be useful
to the competing business he was setting up) and maintained them on his
own computer, he would have been able to use them.
This is good news for employers, who should
ensure that email policies make clear that addresses created and contained
on the employer's system, belong to the employer in their entirety and
may not be copied or removed.
For more information about our Employment
& Pensions Team please contact Jo Wort at joanna.wort@charlesrussell.co.uk
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