A Ms. O’Farrell worked for Publicis Consultants UK Ltd. Her contract provided for three months’ notice. She was made redundant in May 2009 and was provided with statutory redundancy pay and holiday pay. Her dismissal letter also said that she would receive an ex-gratia payment equivalent to three months’ salary (£20,625) free of Tax and NI deductions. Continue reading
The normal rule is that an employee who is ready and willing to work but is unable to do so by reason of sickness, injury or other unavoidable impediment will, if his contract continues and subject to its terms, still be entitled to pay.
In a recent case an employee, perhaps somewhat cheekily, argued that this meant he was entitled to pay for a period when he was prevented from coming to work because he had been remanded in custody Continue reading
The annual National Minimum Wage (Amendment) Regulations which increase the National Minimum Wage from the 1 October each year have now been laid before Parliament in draft form. Following the recommendations of the Low Pay Commission, they will provide for increases in the National Minimum Wage from 1st October 2011 as follows: Continue reading
Although sometimes used as a euphemism for dismissal, “redundancy” is nothing of the sort. It is a reason for dismissal, which may of course be fair or unfair dismissal. Three recent cases have shown that the Employment Appeal Tribunal will take a practical, pragmatic view of what is fair and unfair. The first two are concerned with selection of employees for redundancy dismissal and the third concerns consultation obligations. Continue reading
On the one hand, the Health and Safety Executive is becoming increasingly sensitive to suggestions that the way in which it enforces health and safety rules is excessively pernickety and can lead to red tape stifling initiative and supplanting common sense. It is currently conducting a high level campaign to bring proportionality into centre stage. Two recent examples are the public spat between the HSE and the tennis authorities and a recent HSE consultation on “proposals for replacement arrangements for adventure activities”. Continue reading
It seems that the anomalies which can be found in modern life are expanding exponentially. Last weekend it was reported that “crime maps” on Government websites which identify the locations of local villains are going to be enhanced so that details of crimes, criminals and even photographs will be made available. Meanwhile, the Information Commissioner has taken action against Internet Eyes, a business with a website that rewards members for spotting shoplifters using CCTV footage. Continue reading
Newspaper coverage of the Court of Appeal’s ruling on 27 May in the Sharon Shoesmith case is sensationalist to say the least. The position is misrepresented by headlines such as “Sharon Shoesmith, who was vilified after the death of the toddler Baby P, won her appeal yesterday that she was ‘unfairly and unlawfully’ sacked” (the Independent on 28 May), “‘I’m over the moon’: Baby P scandal boss Sharon Shoesmith set for £1m payout after court rules she was unlawfully dismissed” (the Daily Mail 28 May); or “On Friday, the Court of Appeal ruled she was unfairly sacked, and a leading employment lawyer said she could receive as much as £1 million if the decision is not overturned” (the Guardian on 28 May). Continue reading
Cases concerning the when and how of employee use of social networking sites (such as Twitter and Facebook) are now beginning to reach the employment tribunals.
No new legal principles are involved in deciding when and whether it is appropriate for an employer to discipline or even dismiss an employee for inappropriate use of these sites. But because the subject is likely to come up with increasing frequency it may be useful to draw attention to a couple of recent cases.
In the first (local) case an employment tribunal found that dismissal was within the band of reasonable responses open to pub chain Wetherspoons after it dismissed a shift manager at one of its pubs in Cheshire because she had posted insalubrious comments about two customers on Facebook. The customers concerned had abused the manager, a Miss Preece, when she was on duty. The abuse had continued afterwards in that Miss Preece was later subjected to anonymous telephone calls, including one in which she was told "get your f*cking P45 ready because you are out of here…". An important factor which led the tribunal to rule that the dismissal was fair was that Miss Preece had signed up to Wetherspoon’s formal email and social media policy which included an explicit statement to the effect that disciplinary action could be taken if any comments on Twitter, Facebook etc. should "be found to lower the reputation of the organisation, staff or customers" (Preece v JD Wetherspoons plc Liverpool ET on 18 January 2011).
However in another case a few weeks earlier an employment tribunal held that dismissal was not within the band of reasonable responses open to the Halfords chain of stores. Halfords had disciplined and then dismissed a deputy manager who had posted negative comments on Facebook. Mr Stephens had set up a Facebook page: "Halfords workers against working 3 out of 4 weekends". He sued for unfair dismissal, won and was awarded £11,350 compensation (Stephens v Halfords plc Torquay ET on 3 November 2010).
In this type of case, as in any "misconduct" unfair dismissal case, an employment tribunal will look at whether the employer went through appropriate procedures and will consider whether or not dismissal fell within the range of reasonable responses open to an employer in all the circumstances (and will not substitute its own view of what would have been reasonable). As many HR practitioners are aware, in carrying out this exercise an tribunal will apply three main tests, as follows:
Subscribers should note that we have added a draft social media policy to the library of downloadable documents in the protected area of our website.
In February we reported that at the end of January the Government published a consultation paper designed to "improve the way in which workplace disputes are resolved" (the consultation period ended on 20 April).
Proposals for a more active role for ACAS in trying to settle claims before they get to a tribunal have been generally welcomed but other proposals have been criticised by experts in the field, not least one to the effect that employment judges should be able to sit alone in unfair dismissal cases. Hopefully the government will listen to the views of the experts this time around. They failed to do so in 2004, when the last serious attempt to improve dispute resolution processes was made. The embarrassing result was that the compulsory procedures then introduced were removed in their entirety just five years later.
It may be helpful, given other current consultations and proposals, to point out that the January 2011 consultation was concerned simply with dispute resolution. It had little to do with the substance of employment law. The separate May 2011 consultation on “Modern Workplaces” (noted in our other posts this month) deals with that.
In addition to these consultations the government made a quite heavy duty employment law announcement on 11 May. This was picked up by various newspapers which provided headlines such as "Coalition to water down employees’ rights"” (The Guardian) and "Sackings to be made easier and payouts cut in war on red tape" (Daily Telegraph). The Unite Union came out with a snappily titled press release saying "Plans to make a bonfire of employment protection policies need to be extinguished".
For avoidance of confusion, it is worth pointing out that this announcement had little or nothing to do with the January and May formal consultations. Also, it turned out to be something of a damp squib. The "action" part of it merely promises a review of three parts of employment law later this year – the parts in question being (i) the absence of a cap on the amount which employment tribunals can award in discrimination cases; (ii) the 90 day consultation period where collective redundancies are proposed; and (iii) TUPE. The first of these took a knock just this week when a proposal to cap discrimination payments at £50,000 was lost due to lack of Parliamentary time
Given that much of the relevant British law is required by EU Directives it seems unlikely that any radical changes will be made. However it may be that official protestations last autumn to the effect that there were then no proposals to change the TUPE regulations are being modified in the light of the Government’s subsequent commitment not to "gold-plate" EU Directives. One area of "gold-plating" is the service provision part of TUPE. While TUPE itself is designed to implement an EU Directive, this part (reg 3(1)(b)) is not. It has, for example, the effect of making it practically impossible for a local education authority to save money by outsourcing provision of school meals to a catering company which offers staff less generous pensions than the LEA.
The road to hell is, of course, paved with good intentions. While employment law may itself be confusing, plans to simplify it can all too easily make things even more confusing. An important message for both employers and employees to take from all this is that while the detail of how the rules apply may be complicated in some cases, it is still true that as a a general rule common sense and fairness will usually win the day in employment law matters.
The Government issued its BIS "Modern Workplaces Consultation" on 16 May 2011 . One of the topics covered is "Equal Pay". Consultation closes on 8 August 2011.
The introduction to this section of the consultation document says:
We aim to ensure that employers who have breached the law on equal pay take appropriate action to rectify the problem. We therefore propose to require employment tribunals to make an employer, who is found to have discriminated on pay, conduct a pay audit (unless the tribunal feels this would not be productive).
According to the consultation document "Equal pay audits involve comparing the pay of women and men doing equal work, investigating the causes of any potential discrepancies, and closing any gaps that cannot be satisfactorily explained on grounds other than sex". This is presumably a shorthand description as the consultation document makes it plain elsewhere that an audit would cover not only jobs which are alike but also jobs which are rated as equivalent and jobs of equal value.
Examples of the sort of situations where a tribunal would not order an equal pay audit are given – for example where a pay audit has already been conducted within the previous three years or transparent pay practices are already in place. A "small employer" exemption is being considered. If a tribunal does order an equal pay audit the employer will be required to conduct to publish the results (subject to non-infringement of data protection rules) and consideration is being given to sanctions which would be imposed if an employer fails to comply.
