HMO QUARTERLY EMPLOYMENT BULLETIN
June 2009

NON PAYMENT OF TRIBUNAL AWARDS AND VICTIMISATION
In the recent Court of Appeal  case of Rank Nemo (DMS) Ltd v Coutinho it was held that a former employee can bring a new Employment Tribunal claim for victimisation against his previous employer for failing to pay an award for race discrimination and unfair dismissal notwithstanding that there are means of enforcing such an award (through the County Court).

EQUALITY BILL
THE Government’s Equality Bill has now been published and is presently going through Parliament.

The bill is an attempt to incorporate and simplify the various threads of discrimination legislation into a single Act and will introduce a broad series of measures including attempts to reduce pay gaps. Watch this space.

HMRC INTRODUCE NEW P45
From 6th April a new P45 must be used. These new forms are now A4 size and contain new fields for the employee's date of birth and gender.

GREEN THINKING
The Employment Equality (Religion or Belief) Regulations 2003, as amended in 2007 prohibit discrimination at work on the grounds of any religion or belief. Belief means "any religious or philosophical belief".

At a pre-hearing review in the case of Nicholson v Grainger plc and it has been held by an employment tribunal that an employee's belief that action is required to deal with climate change can amount to a philosophical belief based on the Employment Appeal Tribunal’s guidance that such a belief was “cogent, serious, coherent and worthy of respect in a democratic society”.

Mr Grainger’s beliefs went beyond a mere opinion because he had changed his lifestyle on account of them. He will be allowed to continue with his claim that he had been discriminated against on the grounds of philosophical beliefs.

AGE DISCRIMINATION AND REDUNDANCY : LENGTH OF SERVICE
The Court of Appeal has confirmed in the case of Rolls Royce plc v Unite the Union that it is acceptable to use length of service as a selection criteria for redundancy.  Whilst this amounted to indirect discrimination on the grounds of age it could be regarded as a proportionate means of achieving a legitimate aim of promoting loyalty and a stable workforce where it was only one of a number of criteria on a selection matrix.

We would still be careful about any length of service criterion.  This case involved collective redundancies and agreements within a Trade Union which may limit the application of the decision.

FIT NOTES
The government has announced details of a new 'Fit Note', to replace the current MED3 sick note.  The proposed fit note has a section where the GP can say whether an employee will benefit from a phased return to work, different working hours, amended duties or adaptations in the workplace.

A draft of the new certificate is being piloted with GPs with an electronic version and is presently under consultation.

COSTS WHERE TRIBUNAL CLAIM IS BASED ON A LIE
In the Employment Appeals Tribunal case of Daleside Nursing Home Limited v Mathew the EAT has held that when there is a clear finding that the central allegation of a claim is a lie, it is perverse for a tribunal to conclude that this does constitute unreasonable behaviour (invoking an entitlement to costs), overturning a decision of the Employment Tribunal

Central to the Claimant’s claims of race discrimination and constructive unfair dismissal was an allegation that her manager had called her a ‘black bitch’.  The Employment Tribunal found that Ms Mathew’s manager had not said the alleged words and dismissed her claim but (wrongly) rejected an application for costs.

TIPS AND THE NATIONAL MINIMUM WAGE
The Government has announced that from October 2009 it will be unlawful to use tips to top up salary to the minimum wage levels.

This coincides with the Court of Appeal finding in May in three Appeals brought by HMRC that gratuities did not form part of an employees’ remuneration for the purpose of the National Minimum Wage Act 1998

NATIONAL MINIMUM WAGE INCREASE
The Government has announced that the national minimum wage will increase from 1 October as follows;

• Workers  aged 22 from £5.73 to £5.80 an hour.
• Workers aged 18 to 21-year-olds from £4.77 to £4.83.
• Workers aged 16 to 17-year-olds from £3.57 an hour from £3.53

Disclaimer

The contents of this article are for the purposes of general awareness only.  They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.  Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.