HMO QUARTERLY EMPLOYMENT BULLETIN

December 2007

Annual Leave

On 1 October 2007 the changes to annual leave entitlements came into force.

Most workers are now entitled to 4.8 weeks' paid annual leave. Additional annual leave may be agreed as part of a worker's contract.

If a worker does a five-day week, he or she is entitled to 24 days leave. If he/she does a three-day week, the entitlement is 14.4 days leave, and so on.

From 1 April 2009 there will be a further increase in the annual leave entitlement from 4.8 weeks to 5.6 weeks, or 28 days.

The minimum statutory leave includes bank and national holidays.

National Minimum Wage

From 1 October 2007 the standard rate for national minimum wage increased from £5.35 to £5.52 per hour.

The rate paid to workers aged between 18 and 21 increased from £4.45 to £4.60 per hour.

Equality and Human Rights

The Commission for Equality and Human Rights started life on 1 October 2007. The Commission takes on the role of the previously separate organisations of the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission.

The Commission came into force at a time when consultation is taking place regarding a Single Equality Act to replace and simplify the multitude of existing discrimination legislation.  

Scorned Lovers

In a recent Employment Appeals Tribunal Case B v A (2007) the EAT gave an interesting decision on a sexual discrimination case.

The Claimant, a female employee, (“B”) was dismissed by her male employer (“A”), a solicitor, who had developed a sexual relationship with her but then discovered that she had formed a relationship with a student at her college.

The EAT held that the question to be asked was what was the reason for the employer to act as he did, and whether this was on grounds of her sex.

In considering a comparator, the EAT held that this should be an employee who was identical to B except for her gender. In essence this would be a homosexual man who had conducted a similar sexual relationship with the employer. Since such an employee would equally have been dismissed by the employer in these circumstances, the employee could not be said to have suffered any discrimination!

Corporate Manslaughter

The Corporate Manslaughter and Corporate Homicide Act will come into force from 6 April 2008.

The Act creates a statutory offence of corporate manslaughter overcoming previous difficulties in prosecuting corporations for manslaughter generally.  The offence may be committed by corporations, police forces, partnerships, trade unions and employers' associations with some exceptions.

The offence occurs when an organisation has committed a gross breach of a duty of care and that gross breach has caused a fatality.
 
The significance for an employer is that an organisation will be guilty of the offence if the way in which its activities were managed or organised by its senior management was a substantial element in the gross breach.

In considering a gross breach, a jury will be asked to look at the extent to which the failure was a breach of health and safety legislation and whether any attitudes, policies, systems or practices within the organisation encouraged failure.

Penalties will include
• Remedial orders – to remedy the defect in the organisation causing the breach of duty of care
• Publicity orders – a requirement  for the offending organisation to publicise the fact of its conviction
• Fines

Pitfalls of the Christmas Party

For those considering holding staff parties beware the following pitfalls ;

1. Invitations
Be careful not to discriminate or harass on the grounds of religion; if you have a diverse workforce do not insist all staff attend or even do not promote the event as a Christmas party.

Beware out of hours parties which may prejudice staff with family commitments (which could be interpreted as indirect discrimination towards such staff).

2. Free bars
Beware of providing free alcohol.  Employees dismissed for drunken misdemeanours at parties may be able to defend an unfair dismissal claim by suggesting that provision of a free bar amounted to condoning their behaviour.

3. Beware the Mistletoe
Employees are likely to be considered acting in the course of their employment whilst at staff parties. This leaves an employer vulnerable to claims of harassment and discrimination for inappropriate comments and behaviour.

4. Guests
Beware misbehaving customers or clients and how your staff are encouraged to deal with them.  In a recent EAT case a local authority housing officer alleged that her employer should be ‘vicariously’ liable for racist abuse to which she had been subjected by customers. She alleged that this was a result of the employer’s policy that staff should not challenge racist behaviour by clients or customers.

The EAT suggested that an employer might be liable for harassment if it had a  policy which helped create an offensive work environment.

5. Secret Santa
If asking staff to bring a Secret Santa gift, ask that all gifts are not likely to offend.  There are a multitude of novelty gifts that could cause offence giving rise to a potential harassment or discrimination claim.

Now, after all that enjoy your Christmas Party – if you can!

Merry Christmas and a Happy New Year to all our clients!

Hand Morgan & Owen – Employment

Nigel Pepper, Partner    Patrick Nelson, Solicitor
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Telephone: 01785 211411 

This article is for the purpose of general awareness only and the law may have changed since it was originally published.  It does not constitute legal or professional advice and readers should not act on the basis of the information included.  Readers should take appropriate advice upon their own particular circumstances.