HMO Quarterly Employment Bulletin – December 2010

Looking back on 2010

The big legislative change was the passing of the Equality Act 2010.  The Act has been implemented over a fairly short period of time and virtually all the employment provisions of the Act have now been brought into effect except some provisions relating to the public sector and:-

• “socio-economic inequalities” – unlikely now to come into force at all;
• combined discrimination: dual characteristics;
• provision of gender pay gap information;
• positive action – recruitment and promotion – with the change of Government it is uncertain whether this provision will be implemented.

We no longer have sick notes but fit notes.

Changes to the National Minimum Wage came into force on 1 October 2010.

The right to request time to train was introduced – at present applicable to employers with 250 plus staff but this figure will reduce over time.

For further details of these changes please refer to previous quarterly bulletins, articles and fact sheets post on our Website www.hmo.co.uk

Changes coming in 2011

With effect from 1 January 2011 there will be a new National Minimum Wage Breaches Register.

Rights to additional paternity leave will come into effect on 3 April 2011.

It is anticipated that there will be extensions to the right to time to train.

The proposed abolition of the default retirement age – if agreed – will commence April 2011.

New regulations in respect of Agency workers are due to be implemented before October 2011.

An extension of flexible working rights is due to take effect on 6 April 2011.

To keep up-to-date see  www.hmo.co.uk

Unfair dismissal

It may be surprising but until a case dealt with in the last couple of months, there has been confusion as to when a letter of dismissal is to be regarded as being received by an employee when sent to that employee rather than handed to the employee.  This is important because it is from this deemed date of receipt (the ‘effective date of termination’) that the 3 month period during which a complaint to the Employment Tribunal has to be made starts to run.  In short, the deemed date is when the employee actually receives and reads the letter of termination, or at least when he or she had a reasonable opportunity to do so.

So in this case an employee who at the time that the letter was delivered had gone to see her sister and did not open the letter until she returned succeeded in arguing that the effective date of termination was when she returned and read the letter.  The Court was not impressed by arguments that other members of her family could, on her direction, have opened her correspondence and read it to her during her absence.

The Court pointed out that any uncertainty on the part of the employer could have been avoided by informing the employee in a face to face interview that the employee had been dismissed.

In a second case the Employment Appeal Tribunal looked at unfair dismissal in the light of alleged unfair selection for redundancy.  The argument of the employee was that had the process been undertaken properly, another employee could have been dismissed rather than her.  The Tribunal did not accept her argument making statements which employers might find of some reassurance.  These included that the Tribunal is not entitled to embark upon a reassessment exercise.  For a Tribunal to be entitled to examine scoring in a redundancy case, a Tribunal would require to have a sound basis for doing so.  There would require to be some finding which pointed to the possibility of the employer not having acted reasonably in devising or applying the scoring system adopted (such as, for instance, a finding that the employer had an ulterior motive or that he intended the system to produce a particular result insofar as the identity of those to be made redundant was concerned).  A mere suspicion on the part of the Claimant employee would not be enough.

Parental Leave:  The Law is not an Ass!

This is a European case which does form precedent in our Tribunals and Courts.  On the birth of twins, the employee took 9 months paid parental leave.  At the end of it she claimed the same again for the second child.  She argued that she had such a right to double parental leave under EU Law.  The European Court of Justice dismissed the claim and a well known commentator has assigned the case to the “nice try” file.

Christmas, Scrooge and Employment Law

Hand Morgan & Owen is a member of Connect2Law, a large grouping of solicitors who are able to pool their respective talents and resources enabling them to provide clients with a comprehensive range of legal services.  Never assume, therefore, that we are unable to service your legal requirements.  We have access to some of the best lawyers at regional and national level.

• Christmas gifts:  If alcohol is to be given as a gift, consider offering an alternative for non-drinkers (which will include followers of several religions).
• Avoid gifts which are sexually suggestive due to the risk of a Sexual Harassment claim.
• Avoid gifts which may be interpreted as making fun or picking on the recipient due to the risk of bullying complaints.
• Corporate hospitality and gifts:  Should an employer allow staff to accept Christmas gifts or corporate hospitality from clients, contacts or suppliers?  Does this raise issues regarding the employee’s future impartiality or integrity or possibly with the introduction of the Bribery Act in April 2011 a statutory offence.
• Christmas party:  Employers who have made staff redundant are concerned not to be insensitive in the aftermath of redundancies by throwing a Christmas party.  However cancelling the Christmas celebration can have a very negative effect on staff moral.  Staff who have accepted recession survival measures, such as unpaid leave, a reduction in hours or no pay rise, may well view the cancellation of the Christmas party as the last straw.  The longer term cost to the business may outweigh any sensitivity issues or short term savings. 
• Costly gossip:  A male employee and a female employee were seen, following the office party, entering a hotel room together.  Subsequently the female employee discovered that she was pregnant and informed the employer.  Speculation as to who the child’s father might be then spread from management to management and employees.  In short, the female employee became the subject of gossip.

She made a claim to the Employment Tribunal which agreed that her treatment amounted to sexual discrimination, pregnancy related discrimination and harassment.  Be warned!

If you would like to read other articles, fact sheets and bulletins on Employment Law go to http://www.hmo.co.uk/content/view/87/93/

All at Hand Morgan & Owen solicitors wish you a happy Christmas and a prosperous New Year.

For advice and assistance in respect of Employment matters contact Nigel Pepper, Consultant or Patrick Nelson, Associate on 01785 211411,

12 December 2010

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.