In This Issue:
Aug / Sept 07
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Welcome
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Facing up to Facebook
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Timed out
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Stress at work
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New legislation
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Bottom of holiday league
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Dyslexia ruling
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And some snippets…
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Welcome
This month we discover what happens when you lodge a tribunal claim seconds too late, and we see the law on contractual liability for workplace stress further clarified.
New legislation on corporate manslaughter takes effect next Spring and the Government has included in its new legislative programme a Bill which will revisit some existing employment law measures and streamline others.
The UK meanwhile stays firmly at the foot of the EU holiday ladder, despite the extra entitlement coming into force next month.
Malcolm Davies
Andersons Solicitors
Facing up to Facebook
The TUC is urging employers to put in place policies that not only cover general use of email and the internet but also social networking sites such as Facebook, MySpace and Bebo.
Although employers are within their rights to put such sites off limits altogether, the TUC is suggesting a more pragmatic approach which would allow staff access during breaks within mutually agreed parameters.
The TUC is also warning employers not to be tempted to check out job applicants' profiles online: as only a minority will have such profiles, this could give some candidates an unfair advantage (or disadvantage) and breach the employer's recruitment equality policies.
If you are planning to implement a total ban on employees using Facebook during working hours, it is important to get the procedure right to avoid claims of constructive dismissal. We'd be happy to help out – contact details are below.
Timed out
The Employment Appeal Tribunal has ruled that an unfair dismissal claim presented 88 seconds late was out of time.
The claimant had tried to lodge his claim online on the last day for presentation, but at first mistyped the web address. By the time he successfully sent the form, it was 1 minute and 28 seconds past midnight and that, said the EAT, was too late.
It had been reasonably practicable for the form to have been lodged before midnight and although the result seemed harsh, time limits have to be followed.
Stress at work
The law on contractual liability for stress at work has been clarified in a case involving an employee who developed depression after an allegation of sexual harassment was made against him.
The Court of Appeal held that an employer's policy requiring harassment complaints to be handled 'sensitively' was aspirational and did not form part of the contract of employment. It also held the employer had not been negligent in informing the employee of its decision by leaving a letter on his desk as it was the letter's content — not the means of delivery — which was of importance.
New legislation
The Government has published its draft legislative programme for the forthcoming year, including the Employment Simplification Bill. This will cover
abolishing the statutory disciplinary and grievance procedures
strengthening the national minimum wage enforcement framework
strengthening the law surrounding employment agencies
plus other minor amendments to existing employment law legislation.
Meanwhile, the Corporate Manslaughter Act has received Royal Assent and will (for the most part) become law in April 2008.
Under the Act, companies, organisations and, for the first time, Government bodies face an unlimited fine if they are found to have caused death due to their gross corporate health and safety failures.
The Ministry of Justice says it will be issuing further guidance on the implications of the Act later this autumn.
Bottom of holiday league
The UK looks set to carry on anchoring the EU holiday entitlement league, even after the rise to 28 days by April 2009 (which starts with the increase on 1 October to 24 days).
Workers in all member states are entitled to an annual minimum of 28 paid days' leave from 2009, but according to research group Income Data Services most offer much more with Denmark out in front at 39.5 days, closely followed by Austria on 38. At the other end are Belgium, Hungary and Romania on 30 days, Ireland on 29, and the Netherlands and UK sharing the bottom rung on 28.
Dyslexia ruling
A senior policeman diagnosed with minor dyslexia was disabled under the Disability Discrimination Act 1995, the Employment Appeal Tribunal has held.
The officer was found to be dyslexic after more than 15 years in the force and had not previously had difficulty with aspects of his job requiring high levels of literacy. However, following the diagnosis he should have been given 25% extra time to complete his next promotion exams.
The employment tribunal hearing his disability discrimination claim concluded that his dyslexia had only a minor impact on his work and he was not therefore disabled under the Act. But this was overturned on appeal, with the EAT saying the correct comparison was between what the individual could actually do and what they would be able to do without the impairment, not between the employee and the average person.
Here the officer was at a substantial disadvantage because of his dyslexia when considered against the position he would be in without it and he was, therefore, disabled.
And some snippets…
Claims up
Statistics published this month show an increase of 15% in the number of tribunal claims brought in the last year. Much of this increase is accounted for by the massive number of equal pay claims brought against various local authorities in the North East. Interestingly, 8% of claim forms were rejected by the tribunal (because the employee had not filled them in properly, or because they had not lodged a grievance before claiming).
Getting the message
Nine out of ten companies claim they now don't discriminate on age grounds, according to a Department of Work and Pensions survey of 2,000 employers which attributes the increased awareness to the Government's 'Be Ready' initiative. Part of the wider 'Age Positive' campaign, 'Be Ready' involved distributing information to more than 1.4 million employers in the run-up to last October's introduction of the age discrimination regulations and shortly afterwards.
Adding up
An employer who declared 17 compulsory redundancies immediately after three employees took voluntary redundancy has failed to persuade a court that the consultation process was not required. The Employment Appeal Tribunal held that it was obvious the employer fully intended to make 20 people redundant within a 90-day period and the argument that three employees left voluntarily and so didn't count was irrelevant.
Failing to inform
The Employment Appeal Tribunal has made its first award against an employer for failure to inform under the Information and Consultation Regulations 2004. In its third breach of the regulations, the employer failed to organise a ballot to elect employee representatives following a valid request and was fined £55,000 after the EAT concluded there had been a 'significant failure'. The Central Arbitration Committee can declare that procedures have been breached but only the EAT can impose a fine — of up to £75,000.
Young people at work
The Health and Safety Executive has a website section dedicated to ensuring young people remain safe in the workplace. Covered are issues including how lack of experience and awareness can put younger workers at risk and specific topics related to unpaid work experience. Details at http://www.hse.gov.uk/youngpeople
About Andersons
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Andersons offer a comprehensive employment law service to a broad client base comprised mainly of quoted and private companies, public authorities, charities and private individuals, many of whom are household names. Our expertise covers all aspects of employment law and in particular matters relating to litigation, re-organisations, severance, training and general HR advice. We act for clients on a nationwide basis and represent clients all over the country in Employment Tribunals, the Employment Appeal Tribunals and other courts.
If you require advice or assistance in respect of any particular matter, please contact Malcolm Davies on Malcolm Davies . For more information about Andersons, please see our website http://www.andersonssolicitors.co.uk .
Disclaimer
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The information and any commentary contained in these bulletins is for general information purposes only and does not constitute legal or any other type of professional advice. Andersons Solicitors do not accept and, to the extent permitted by law, exclude liability to any person for any loss which may arise from relying upon or otherwise using the information contained in these bulletins.
If you have a particular query or issue you are strongly advised to obtain specific, personal advice about your case or matter and not to rely on the information or comments in this bulletin.
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