New Employment Law changes stack up as a general election looms

It’s difficult to recall a year when we haven’t been swamped with employment law proposals – some dictated by EU law; some by the domestic politics of the day. A whole host of government consultation documents are out at the moment and it’s hard to imagine them disappearing, even if there’s a change at Number 10. Whoever is in power, the proposals don’t go away. Family-friendly policies, for example – previously somewhat neglected by the Tories – now look likely to be part of their election manifesto.

And, of course, there’s case law. Large numbers of equal pay cases are still being pursued, mainly in the public sector. Since many are being sent to the higher courts, they are likely to cost many millions of pounds in taxpayers’ money.

Disability law continues to be affected by Lewisham v Malcolm (2008 UKHL 43), which emasculated the right to claim for disability-related discrimination. The court held that, where a disabled person was treated the same way as someone without a disability for a reason related to the disability, no discrimination took place. Later courts tried to mitigate Malcolm’s consequences by focusing on the duty to make reasonable adjustments.

The Equality Act 2010 will replace disability-related discrimination with negative treatment owing to disability – eg, disciplining employees for absences caused by their disability. The act will introduce indirect disability discrimination too, while Parliament is considering a clause to make it harder for any recruitment documentation to ask questions about a candidate’s health.

Religious discrimination continues to exercise the courts. London Borough of Islington v Ladele (2009 EWCA Civ 1357) concerned a registrar’s unwillingness to conduct civil partnership ceremonies, for example. In this case the court held that the council’s indirect discrimination was justified. The EAT did the same in a case about a relationship counsellor who refused to work with same-sex couples (McFarlane v Relate, UKEAT/0106/09). It held that there was no discrimination against someone banned from wearing a cross at work (Eweida v British Airways, UKEAT/0123/08, confirmed by the Court of Appeal) but also that “belief in climate change” may amount to a philosophical belief (Grainger plc v Nicholson, UKEAT/0219/09).

In Osborne Clarke Services v Purohit (UKEAT/0305/08) the EAT held that refusing an Indian applicant for a job because he had no right to work in the UK was racial discrimination even though it was contrary to the Asylum and Immigration Act 1996. This act makes an “offer” of employment conditional on the person’s ability to work in the UK. It did not apply at the initial shortlist and interview stage. This is an odd decision, and the legislation did not provide justification, since the employer could have applied to become a sponsor.
So, election or not, it appears to be business as usual in employment law.



Proposed changes
- Default retirement age The government has brought forward its review by a year in light of the Heyday judgment. The age is likely to rise from the current 65 years.
- Parental leave An EU directive has extended the right to unpaid leave to four months. The UK should implement this within two years.
- National minimum wage There is an ongoing consultation on an increase for apprentices.
- Bank holiday There are plans for an extra day on 5 June 2012 to celebrate the Queen’s diamond jubilee (the late May holiday would be moved to 4 June to create a long weekend).



Definite changes
- Public interest disclosure From 6 April claimants making whistle-blowing allegations will be asked on the tribunal ET1 form whether they wish the issue to be referred to the appropriate regulator.
- Corporate manslaughter Guidelines recommending higher sentences for offences are now in force.
- Agency workers The regulations are published and due to be implemented by October 2011.
- Paternity leave New rules on extended paid period will be effective from April 2010, for fathers-to-be with babies due from 3 April 2011.
- Training A new right to request time off for training will apply from April 2010 in organisations with 250 or more staff, and from 2011 in all other organisations.
- Blacklisting Regulations making it unlawful to deny employment to people on a trade union blacklist are expected in “early 2010”.
- Fit notes “Fit notes” will replace GPs’ sick notes from 6 April.
- European works councils Regulations are being recast to fit the revised directive.
- Equality Act 2010 Two new codes relating to employment and equal pay are due to come into force with the act in October.

Business lack confidence concerning Employment Law

Small businesses are suffering from a lack of confidence when it comes to employment law, it has been claimed.

Research by the Department for Business, Innovation and Skills shows that just a third of firms are confident of their understanding of employment law.

In addition, while almost half of those questioned said it is important to stay up to date with employment law changes, a quarter admit they are not up to speed with such matters.

Employment relations minister Lord Young said: "We know that running a small business is both challenging and rewarding - and that this combination often fuels a successful enterprise. The essential job of managing employment law need not be one of these challenges."

He added that the study has identified a number of knowledge gaps and will be used to tailor the advice businesses are given.

Sham redundancy was infact disability discrimination

Wright v Tru Homes Ltd ET/1701224/09

Mr Wright, a designer of timber frames who suffered from a serious brain tumour, was dismissed purportedly for redundancy by his employer. He brought claims of unfair dismissal and disability discrimination. The tribunal found that there was no genuine redundancy situation, and that the employer effectively demoted Mr Wright and reduced his pay for no good reason. The employer also failed to make reasonable adjustments to assist Mr Wright with regard to his medical condition, which included denying his request to work from home while undergoing treatment.

Withdrawal of job offer due to previous mental health issues was discrimination

Irvine v Chief Constable of Nottinghamshire Police ET/2602970/08

Ms Irvine, who suffered from bipolar affective disorder, claimed disability discrimination after her job offer, as a temporary learning and development officer, was withdrawn. The reason given to Ms Irvine was that she “was unlikely to be suitable for this role due to health reasons”, despite the fact that she satisfied the application requirements regarding her sickness absence for the previous three years. The tribunal held that Ms Irvine’s condition amounted to a disability, and that her prospective employer had discriminated against her not only directly - by retracting the job offer - but also by failing to make reasonable adjustments to assist her appointment

Sick employee entitled to carry over holiday

Shah v First West Yorkshire Limited ET/1809311/09

Mr Shah had booked four weeks' holiday from 22 February to 21 March 2009, but due to sickness absence - which lasted up to and beyond the end of his employer's leave year - was unable to take it. The employment tribunal ruled that the Working Time Regulations 1998 (SI 1998/1833) could be interpreted so as to give effect to a recent European Court of Justice decision, which held that holidays can be carried over to a following leave year if an employee is prevented from taking them. Mr Shah was therefore entitled to carry over his holiday, even though in practice he had already been paid for it while on sick leave.

Alternative interventions to bullying claims

There is no getting away from the fact that bullying is bad for business, and creates a risk to the health and safety of the recipients and the organisation as a whole. It is even worse when the head of the organisation is named and shamed as a potential bully, as Gordon Brown knows to his cost this week.

Often what is perceived as bullying is often just strong management to another. Clashes of personality and differences in leadership styles often constitute the start of potential bullying claims. The business must never ignore its duty of care and as such should always be looking to nip potential conflict before it escalates.

A contemporary, cost effective and proven alternative to harmful bullying claims and litigation is workplace mediation. This intervention is often overlooked, but going forward there is no doubt that Employment Tribunals in the future will look at the efforts of the parties to mediate disputes before tribunal claims are lodged and then heard. Read more about the real tangible benefits of workplace mediation at http://www.seminarsandsolutions.com/mediation.html

Gordon we can help!

A quick word to the wise for our PM Gordon Brown. We have an excellent outcome focused mediation service that has delivered some brilliant results on workplace bullying claims. Do give us a call - we would love to help!

Benjamin-Cole v Great Ormond Street Hospital for Sick Children NHS Trust

Employment tribunals adhere strictly to the time limits in which claims should be presented and do not grant extensions readily. But in this case the EAT accepted that time limits for presenting a victimisation claim may be extended.

A hospital administrator’s role ceased to exist following a restructuring exercise. Benjamin-Cole was placed on an eight-week redeployment programme within the Trust, but no role was found for her and her employment was terminated. In the meantime, she had consulted a volunteer employment adviser to assist her with her potential claims. He was not legally qualified but had had experience of tribunal claims.


The appeal against her dismissal was heard by the Trust in October, but this did not affect Benjamin-Cole’s termination date in August.It was clear that the adviser was aware of the time limit for presenting Benjamin-Cole’s claims in November. But as the deadline for the claim approached, he learned that his sister was seriously ill in Nigeria. Following on from this, he submitted the claims for unfair dismissal and victimisation four hours and 16 minutes after the deadline expired.Time limits for unfair dismissal will only be extended where a claimant has shown it was not reasonably practicable to present the claim in time.


Time limits for victimisation claims under the Race Relations Act 1976 can be extended where it is just and equitable to do so. The employment tribunal, applying the stricter unfair dismissal test, rejected the argument to extend the time limit for this claim and the claimant did not appeal this point to the EAT. The claim for victimisation, on the other hand, was remitted back to the employment tribunal by the EAT because the tribunal had wrongly laid the blame for its late submission on the claimant herself, and had made a number of assumptions on which there appeared to be no factual evidence. Case ref UKEAT/0356/09/DA

Would you demote a line manager if they behaved like John Terry?

John Terry’s alleged extramarital affair with the girlfriend of his England teammate, Wayne Bridge, made headlines and led him to be stripped of the national captaincy. Some people may feel that his conduct was unacceptable for someone in a position of such responsibility and he got what he deserved. But could a senior manager in any other line of work have been treated the same way?

Reputation
An employee doing something that attracts adverse publicity for their organisation may provide grounds for dismissal – for example, where a press report names an employee who has been convicted of a criminal offence. The employer may have genuine concerns that this could bring its name into disrepute by association. John Terry’s conduct will be open to examination by the press. Senior managers in most other lines of work would be highly unlikely to attract such media attention in similar circumstances.

Misconduct
A manager with over a year’s service could claim unfair dismissal unless the employer can establish a fair reason for dismissing them for misconduct. Generally, disciplinary action will be appropriate only where employees have breached the terms of their contracts or committed a disciplinary offence. An employment contract or an organisation’s disciplinary policy is unlikely to expressly prohibit an employee from having an affair with a colleague’s partner.

Human rights
Employees have the right to respect for their private lives. They could argue that what happens in their own time has nothing to do with their employer. But this right has to be balanced against the legitimate requirement of the employer to be able to run its business. The right to a private life can be exercised only if it does not infringe other rights unreasonably.

Demotion
For this to happen, the employment contract would have to contain an express power allowing for demotion. Even then, exercising that power is likely to be subject to the implied term that it will be done only in circumstances where it is reasonable. There is a clear risk in such situations that a demoted manager could then resign and successfully claim constructive dismissal.

Employee pressure
Emotions among colleagues tend to run high in such situations. After the revelations about Terry, some footballers wore shirts bearing the words “Team Bridge” to express their support for his teammate. While this is unlikely to happen in the average workplace, colleagues may still show solidarity by refusing to work with the manager. In this case an employer should make all reasonable efforts to resolve the conflict. Conciliation services may help to find a compromise. If other employees refuse to work alongside the manager, enquiries should be made to see whether the individual could be redeployed.

Time off
The manager would have no statutory right to leave in this sort of situation, but there may be practical advantages in allowing time off. It would give the manager a chance to straighten out personal relationships and allow colleagues to cool down.

Dismissal
If there are no redeployment opportunities and several employees refuse to work with the manager, this may be grounds for dismissal, because the commercial impact of their stance may amount to “some other substantial reason”. Although this is a potentially fair reason for dismissal, it should be seen as a last resort.

"Outed" Civil Servant Wins Tribunal

Although the legislation does not expressly protect an employee’s privacy in relation to their sexuality, where a manager unnecessarily made references to an employee’s sexuality and treated him differently from other employees on grounds of his sexual orientation, the employer was liable for direct discrimination and harassment. In this case, the respondent is a large employer with diversity policies in place, but was liable due to the reaction of one manager to a gay employee. Grant v HM Land Registry ET/1307467/07

Phil Grant, a recognised high achieving employee of the Land Registry, who was also on the Civil Servant Future Leaders Programme, was subjected to bullying and harassment from his Line Manager Sharron Kay when he was relocated on promotion to the Coventry Office. One week before his arrival, Ms Kay revealed Mr Grant’s sexual orientation to another colleague without his consent by saying that there was no point in fluttering her eyelids at Mr Grant because he was gay.

Two weeks into his new role as an Accounts Manager, Mr Grant was outed again at a business dinner by Ms Kay. She also made limp-wrist gestures at him, made his use of company cars almost impossible for him and told him that if he couldn’t sort the car problem out he wouldn’t be able to do his job, overloaded him with work after he suffered a close bereavement, and continually harassed him with intimidating behaviour because of his sexual orientation. After only three months of working for her, Mr Grant was rushed to hospital suffering from a severe painful rash caused by stress. After 7 months under Ms Kay’s management he went off long term sick.

Mr Grant said: “I believe it is up to the individual to decide whether to disclose one’s sexual orientation and when it might be the best time to do it.“I have never experienced bullying and harassment before this, but it feels like I’ve been through hell and back.

Federico Podeschi, Managing Director of the LGBT Excellence Centre says this is a milestone ruling for the use of the Sexual Orientation Regulations: “Outing someone has always been a grey area, however this judgement shows that the legislation offers protection and that disclosing someone’s sexual orientation is not only a breach of human rights and shows lack of respect for individuals, but also unlawful under discrimination law”.

Anyone fancy a Love Contract?

With Valentine's day looming we thought we would take a look at the road to love and how it can bring about disastrous fallout for a business if the relationship ends or faces difficulties.

According to a report in the Guardian last year, one in five people marry a co-worker. Maybe this isn’t surprising given how much time many of us spend at work, often working in close proximity to colleagues, customers or clients. But perhaps it’s also unsurprising that half of all workplace romances end within three months.Many office relationships are doomed from the start. There are a number of factors that place strain on fledgling romances, and any employee considering making a move on a colleague should do so with caution - especially if the other person is on a different grade.

Problems can occur either by trying to keeping the relationship a secret or, if colleagues are aware of its existence, through accusations of favouritism. For the employees involved, the workplace is no longer an escape from problems at home and what should be private discussions are all too often aired in public. This can make it difficult for colleagues as well as those in the relationship. If you are an employers you will also have concerns. Distractions, tensions and even jealousy arising from a workplace romance will affect employees’ performance and could lead to claims of sexual harassment and discrimination.

What employers can do
It seems draconian in modern times to ban relationships between colleagues entirely - and it would be impossible to manage. A better solution is for the organisation to have some control over workplace liaisons.As with any policy, guidelines on office romances should be clear, fair, made known to employees and followed every time. The organisation should determine what it considers to be unacceptable behaviour or misconduct in the workplace, such as:
• inappropriate physical contact;
• inappropriate use of language; or
• personal use of company communications systems

Policies might include preventing those in a relationship working closely together and from interviewing, managing or promoting each other. Such rules might be incorporated into relevant existing policies, such as those recognising equal opportunities or dignity at work, or might warrant their own consideration in certain environments.

As with many policies, they should be thought of as guidance or a code of conduct so that any breach would be a misconduct issue rather than a breach of contract. Equal opportunities policies should make it explicit that everyone will be treated fairly and on merit, limiting the opportunity for favouritism or victimisation occurring during romantic relationships.Organisations may include a clause in senior employees’ employment contracts prohibiting relationships with subordinate employees within their own teams, departments or locations.

Love contracts
The US has led the battle in regulating workplace relationships. “Love contracts” may sound more onerous than marriage vows, but could be a sensible approach to managing the fall-out from a soured relationship. The “contracts” are actually more like declarations of a relationship, confirming it is consensual and signed by the parties involved, with the aim of avoiding later conflicts and allegations of harassment or misconduct.Although some would argue such contracts conflict with the right to privacy as protected by the European Convention on Human Rights, there are many advantages to them that could mean less disruption in the workplace. Declaring a relationship will reduce office gossip and allay employees’ fears of prejudice or unfair advantage stemming from a relationship.

Alerting employees to the working rules of the business around workplace relationships should go some way to reducing the risk and harm if the relationship fails. However to enforce it, it must be consistently applied to all.

Zero hours contract introduction was unfair dismissal

Staff at a Humberside car company have won an unfair dismissal case, after objecting to the introduction of a "zero hours" working pattern.

Workers at Paragon Automotive claimed unfair dismissal after their employers ended their previous contracts from 40 or 50 hours per week. They were replaced with contracts enabling Paragon to dictate the number of hours worked by staff.

The 17 workers who were all members of UNITE union, signed the contract initially on the proviso that they could challenge it if necessary. Of the 17 claimants, two won unfair dismissal claims in Tribunal in Leeds, whilst the other 15 reached an out of court settlement.

This is a stark reminder to employers that varying terms and conditions of employment is fraught, but should always start through an open and transparent negotiation process.

Beware - serial litigants claiming ageism against employers

You admit it - the wording of your vacancies sometimes isn't all it should be, but surely that shouldn't be enough to bring a tribunal claim against you?

Unfortunately it is and it is an industry for some. The Sunday Times recently reported how a 54 year old man was issuing Employment Tribunal Claims on-line claiming that vacancies advertised showing phrases such as " school leaver" or "recent graduate" were discriminatory on the grounds of age.

The claimant then sends threatening letters to the advertising employer (mainly SME's fearful of protecting their business and their brand) demanding thousands of pounds for an out of court settlement. Cunningly, the claimant had requested that the hearings centres for the tribunal claims were hundreds of miles away from the employers place of business, which strengthened his chances of receiving settlement monies.

Most of these spurious claims have little merit and we would advise employers not to pay out in these circumstances before taking advice.

Fathers entitled to six months paternity leave

So your top biller has dropped the bombshell. He would like to take up his statutory entitlement of extended paternity leave. His wife hates it at home with the baby and quite frankly he has worked really hard over the last ten years and wants to bond with his offspring. She is going to transfer her remaining maternity leave to him.

Help! Can he do this - surely there must be a way to stop him?

New legislation comes into effect on the 6th April this year to allow fathers of children with an expected week of birth on or after 3 April 2011. Preventing a father his entitlement would be a breach of his statutory rights and may bring rise to a potential sex discrimination claim in tribunal.

Presently fathers can take up to 2 weeks paternity leave providing the following criteria is satisfied:

• The individual must be an employee and not a worker
• They must have been in employ for at least 26 weeks before either the end of the 15 week before the baby is due or the end of the week which they are notified that they will be matched with a child for adoption
• They must be the biological father of the child
• Must be the mother's husband or partner (including same sex relationships)
• Child's adopter or the partner of the adopter

Fathers will be granted the legal right to take up the final three months of paid maternity leave due to the mother provided she returns to work. Fathers will only be paid the statutory maternity pay of £123 a week for the three month period.

In addition, fathers will also have the chance to take a further three months of unpaid paternity leave, bringing the total amount of parental time-off for couples of newborn children to twelve months.

It is estimated that the take up maybe minimal - however this highlights that communication channels and regular one to ones need to be in place with your employees to gather the information, thoughts and plans around the expected arrangements for maternity/paternity. It will be imperative that the employers of fathers taking this entitlement liaise closely with the mothers employer to ensure that return dates are correct, reducing the risk of disruption and disputes.

Poor relationships between line managers and staff main cause of grievances

As the recession brought a sharp rise in grievances and with it substantial cost in the amount of wasted management time in disputes to businesses, was the recession itself the real cause?

A new survey published by Personnel Today asked a number of HR chiefs what was the main cause of grievances in their organisations? 39% of HR professionals cited was poor relationships between line managers and staff as the main cause.

Those surveyed found the main issue of bullying had doubled during the recession from 15% to 31%. Overall 29% of function reported an increase in grievances in 2009.

I am constantly asked the question as to why that is? Have line managers lost vital skills sets; do they bully more in a recession?

My feeling is that in the economic boom, the same amount of issues and problems existed in the workplace, but were naturally disposed of by an employee if things started to decline. They simply went and got another job.

With prospects of good emergence from recession looking stronger, it has never been more important to invest in line manger skills training to aid the Employer branding strategy and reduce the all to real headache of the true cost of workplace disputes.