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Press Releases from Employment Relations
Employment News July 2009
This will be our last employment news before the summer break and we will resume normal service in September. The employment tribunals are at bursting point with claims as a result of the economic downturn and with unemployment going up for some months to come and regardless of any “green shoots” the tribunal statistics look likely to climb.
Age Discrimination
Not exactly new law, but an interesting insight into social trends. According to a report in the Bristol News, grandmother of three, Olive Bater talks of her sadness in being forced to leave the job she loved at Long Ashton Golf Club. She is 83. She has been given notice to retire by the club. Perhaps when the current Heyday challenge has worked its way through the legal system, she may be in a position to look for her job back.
The logistical mismatch in terms of availability of jobs and qualifications to do the jobs is leading those over the age of 65 to want to continue working much longer to replace the non existent pensions. Unless one has the great good fortune to be on a final salary pension scheme, more of which later, then the current financial crisis and the devastation in investment markets, means that very few people would look to retire at the moment. People of retirement age face the double whammy that annuity rates are low as are the value of funds needed to buy the annuity. Meanwhile, at the opposite end of the spectrum, young people are struggling to find jobs as never before.
Child Employment
In East Sussex County Council, staff from the Education Welfare Service have been visiting schools and workplace to raise awareness of the law surrounding the employment of children. With the summer holidays coming up, it is perhaps worth restating the legal position. The minimum age at which a child may be employed in any work, other than with a parent or guardian, in occasional light agricultural or horticultural work, is 14. During the school holidays, those under 15 can work for a maximum of 5 hours per day or 25 hours per week and may not work before 7am or after 7pm. No more than 4 hours can we worked without a rest break of 1 hour and there must be a period of at least 2 weeks during the school holidays in a year which is free from employment.
Data Protection
The Personal Data Guardianship code has been published by the British Computer Society at the Information Security Awareness Forum in response to various well publicised data breaches in recent years. The code can be accessed here and aims to promote best practice and common sense guidance. The code does not have statutory force and some commentators believe the code can be confusing. Guidelines exist, of course, from the Information Commissioner’s office.
Disability
An important case on the definition of disability reached the House of Lords. They considered the case of SCA Packaging v Boyle. Mrs Boyle had had an operation to remove nodules from her vocal cords following which the hoarseness and nodes had not returned. Was this “an impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect”? The case turned on the “likely”. Previously, likely was interpreted as meaning more than a 51% statistical probability. The judgement is somewhat radical in that it has substituted a common sense approach and now interpret likely to mean “could well happen”.
Abercombie and Fitch, the upmarket clothes retailer, have been sued for disability discrimination and harassment. According to reports in the Guardian, she was told that she had to a have a cardigan on to hide her false arm.
Equal Pay
The Scottish Parliament have attacked the unacceptable delay in implementing equal pay and have encouraged the councils to reach agreement with the unions.
Various low paid workers, in the Unison and GMB unions, have obtained a pension pay out 10 years after starting an equal pay fight against a private school. Male workers were allowed to join the pension fund on a voluntary basis; part-time staff, predominantly women, were unable to do so.
Parental Rights
As we previously predicted, the Government has shelved plans to allow parents to share maternity leave. The secretary of state, Peter Mandelson, has said that in tough economic times the government must look afresh at costs and benefits of new regulations.
Health and Safety
We offer our usual link to the health and safety newsletter published by MESH consultant news letter.
The Times on 11 June carried an interesting article on the development of the concept of corporate manslaughter. The attempt to convict a company began on 2 February 1965 when a welder who had been working on a bridge of the River Wye fell to his death when the bridge collapsed. An attempt to convict the company of manslaughter failed. Some 44 years later, more than 40,000 people have been killed at work or in commercial disasters such as ferries or train crashes. However, the prosecution of Cotswold Geotechnical Holdings is the first prosecution under the new Corporate Manslaughter and Corporate Homicide Act 2007 and will make convictions somewhat easier. A substantial element of the gross negligence needs to come from senior management. Convictions carry an unlimited fine. Sentencing guidelines are between 2.5% and 10% of the company’s average turnover in the 3 years before the offence. Directors can be prosecuted too.
Work Permits
Last year saw a record number of companies fined as a result of prosecutions for hiring illegal immigrants.
A bakery supplying Marks & Spencer’s croissants was the subject of a raid by the Gangmasters Licensing Authority. The French Croissant company in Park Royal was employing staff at £2.50 per hour below the minimum wage, many of whom had come into Britain from Somalia, India and Eritrea on false passports.
Minimum Wage
The Caterer and Hotel Keeper magazine reports that many hotel operators pay staff less than the national minimum wage. Often they are paid as little as £4.50 per hour or the employees are working for 80 hours a week but being paid for the contracted 40. Most of the staff all are young or foreign workers.
Carluccios are reported to pay their waiting staff £3.75 per hour plus ¾ of tips left by customers on debit or credit cards. If this combined figure is still less than the minimum wage then the company tops it up. Under the regulations introduced to avoid this sort of disregard of the minimum wage regulation, employers would still be able to keep the service charge.
Racial Discrimination
The Daily Mail reported that the works and pensions department have sent out fictitious job applications with foreign sounding names to try and unmask racist businesses. Similar job applications were put in with Anglo Saxon names.
The Daily Mail have also reported on the case of Tariq Dost who is claiming discrimination having been told by his boss that he looked like Osama Bin Laden.
Elsewhere, a Spanish electrician Juan Ignacio was reported in the Telegraph to have won a tribunal award having complained about being nicknamed Manuel after teh Fawlty Towers character by his colleagues.
Pay
The next time that you bunker down for the night in a Travel Lodge with the children or grandchildren on route to your summer holiday destination, please ensure that the children do not make too much noise. The occupant of the next room may be a member of an oppressed group known as employment judges. The council of employment judges representing over 400 tribunal judges has submitted evidence to the Committee on Standards in public life, accusing MP’s of profiting from their tax payer funded allowances. Judges working away from home are paid £21 per night subsistence and £2.90 in personal expenses. Their irritation at this state of affairs was reported in the Telegraph.
Another group vilified even more than MPs is bankers. The Independent reported that the new Royal Bank of Scotland chief is in line for a £9.6 million incentive package. Obviously the bank will struggle to find anyone to do the job for less.
Pensions
Personnel Today magazine reported claims by the Unite union that the recession is enabling employers to cut pensions.
For many adequate pensions simply do not exist and according to Fidelity International, working until 77 will become normal.
Redundancy
The weekly redundancy pay limits are to be increased to £380 with effect from October 2009.
Meanwhile, the CBI is proposing a scheme which would enable a six month lay off with the staff on lay off being paid at the rate of twice the job seeker’s allowance. The government would pay half and the employer the other half. CBI say this is designed to be an alternative to redundancy since it enables the business to reduce costs pending an upturn. If at the end of the six month period staff are not paid, they would receive their redundancy pay in a normal way. In some ways this chimes with efforts being made on a voluntary basis or semi-voluntary basis. The Times reports on BA’s attempts to get staff to work for one month for no pay.
Sexual Discrimination
2000 female council workers in Northumberland are likely to receive significant payouts on the basis of an equal pay claim that has been running. It is thought that the payout may be as much as £35 million in total.
The Times reported that Alan Sugar’s company is being taken to the employment tribunal with an allegation of sex discrimination.
The Metropolitan Police have made payments of £2 million in out of court settlements in the past 5 years according to reports in the London Evening Standard.
Sexual Orientation
According to the Daily Record, a Scottish teacher who lost his disability claim in which he complained of pupils mocking his baldness, is now claiming he is discriminated against on the grounds of sexual orientation. He told the tribunal that he was not gay but was called, poof, gay, perve and weirdo by his pupils.
Gay Rights Organisation, Stonewall has issued advice to assist employers dealing with a clash of rights where people of faith object to homosexuality.
Sickness
We reported before on the case of Christine Laird, who is dispute with Cheltenham Borough Council. They were suing her for £1 million as return of sick pay given to her. They complained that they would not have taken her on if they had known her full medical history. They lost their case.
The Department for Working Pensions as issued details of its plans for a new “fit note”. The fit note is intended to add GPs saying what work can be done rather than simply saying unfit to work.
Tribunals
The Birmingham Post reports that an ever increasing number of claims is going through the tribunal as a direct consequence of the credit crunch.
Elsewhere, the Daily Mail reported on a Barclays bank employee who was able to keep overpaid salary awarded to her by mistake. Natasha Keenan was a part time complaints advisor and had been paid £17,000 per annum instead of £9,500. Mrs Keenan had been working for the Woolwich Building Society at the point at which it was taken over by Barclays and had been promised a significant pay rise which she told the tribunal is what she had assumed had happened.
Whistle Blowing
As a result of whistle blowing disclosure, two employees of the East Riding Council were found to be guilty of steeling significant sums. The two individuals were convicted and the Yorkshire Post reports that the council have recovered £92,000 from their pension pots.
Heather van de Layly was reported in the Evening Standard as taking University College to a tribunal having been suspended. According to her solicitors, Bindmans, she alleges that the disciplinary action was disproportionate and it followed public interest disclosures made by her.
Consultant Pradip Singh is reported in the Birmingham Post as having warned managers and fellow consultants of dangers at the Stafford hospital as long ago as 1995. He is the subject of a disciplinary process at the moment and is suspended.
