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HMO Quarterly Employment Bulletin – June 2011

NATIONAL MINIMUM WAGE

The Government has announced new National Minimum Wage Rates which will come in to force on 1 October 2011

•   £6.08 for employees 21 years or older

•   £4.98 for employees 18 to 20 years old

•   £3.68 for employees 16 to 17 years old

•   £2.60 for apprentices.

NEGLIGENT COMMUNICATIONS

It is long since established that employers have duty of care to ex employees in preparing a reference about them. An interesting extension of this principle arose in the recent High Court case of McKie v Swindon College. Mr McKie had been employed by Swindon College and there was overwhelming evidence that he was an exemplary employee.

Some time after his departure at the college he was engaged by the University of Bath, and as part of his role he may from time to time have been required to attend at Swindon College. The new Human Resources Director of Swindon College sent an extremely damaging email to the University of Bath concerning his proposed attendance at the college and shortly afterwards Mr McKie, who was on a probationary period, was dismissed. Whilst this was not the provision of a reference the Court held that a duty of care still applied. Damage had been sustained and was foreseeable.

This case emphasises the importance of employers taking care when discussing ex-employees regardless of whether or not it is in the provision of a reference.

DISCRIMINATION CLAIMS: JOINT AND SEVERAL LIABILITY

In discrimination claims it is not unusual for a Claimant to begin proceedings against a discriminating colleague as well as their employer. In the recent Employment Appeals Tribunal case of London Borough of Hackney v Sivanandan & Others the Tribunal has held that where an employer and employee are jointly liable that the compensation is the joint and several responsibility of the employer or employee ie the Claimant can pursue either for the full amount awarded.

PREGNANCY AND THE DANGERS OF POSITIVE DISCRIMINATION

In a recent Employments Tribunal case of Eversheds v De Belim the Tribunal held that Eversheds had been wrong to give an employee on maternity leave an “unfairly inflated score”. The Tribunal said that the duty to protect employees who are pregnant or on maternity leave must not go beyond what is reasonably necessary and proportionate. In this particular case they stated that the employer should have looked at the performance of the two employees when they were last at work to achieve a score that would be unaffected by the maternity absence.

This case emphasises the extreme care that must be taken by employers in using selection pool criteria where that pool includes an employee who is pregnant or on maternity leave.

THE BRIBERY ACT 2010

This Act comes into force on 1 July 2011 and businesses should be aware that it creates an offence for commercial organisations who fail to prevent bribery on their behalf. Commercial organisations will have a defence if they can show that whilst bribery took place there were adequate procedures designed to prevent persons involved with the organisation from being involved in such conduct.

Guidance has been published by the Ministry of Justice which sets out 6 guiding principles including proportionate procedures, top level commitment, risk estimate, diligence, communication/monitoring and review.

AGENCY WORKERS REGULATIONS

These will come in to force as things stand on 1 October 2011 and will give temporary agency workers the right to equal treatment compared to permanent workers or employees in respect of certain employment conditions subject to completing a 12 week qualifying period.

ILLEGAL CONTRACTS

The recent Employment Appeals Tribunal case of Allen v Hounga is an example of the strict operation of the law in relation to illegal contracts notwithstanding extremely unfortunate circumstances.

The Claimant was engaged in Nigeria to provide services in this country as a domestic servant. At the request of her employer the Claimant obtained a Nigerian passport in her family name and falsely stated in her visa application that she was their relative visiting on holiday. She intentionally over stayed. She was paid a salary of £50 per month and subjected to physical abuse. She eventually resigned.

The Tribunal held that despite her employer instigating the illegal contract she knowingly participated in it and accordingly her claims of unfair dismissal and breach of contract were unenforceable. (A separate discrimination claim was however successful on the basis that this was not “inextricably linked with illegal conduct”).

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

If you would like to read other articles, fact sheets and bulletins on Employment Law go to www.hmo.co.uk.

9 June 2011

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.

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