Wednesday 30 November 2011

Do Governments Have Ears?


I’ve just read the Government’s response to its ‘Resolving Workplace Disputes’ consultation.  We submitted our own views (copies available for free if you are interested - email us if you’d like to see what we thought) and now we can see what the politicians think.

Our view was that a 12 months qualifying period for eligibility to claim Unfair Dismissal was alright.  2 years is too long.  Surely a decent employer will know inside a year whether they need to dismiss?  And there’s the adverse effect on staff job security too.

The Government noted:

-  Most consultation respondents disagreed with increasing the period to 2 years
-  The increase would not reduce the number of claims by the amount the government had forecast (read: their scaremongering was overdone)
-  Minority groups (e.g. women, disabled people) would probably be proportionately worse off following the increase
-  Small businesses weren’t any more affected by these claims than bigger ones

    Good.  That’s settled then.  No need to increase the qualifying period.

    The 2 year limit comes into force in April 2012.

    And despite negative responses to the idea of ET judges sitting alone in these cases, the Government’s going to do that, too.

    I’ve wondered for a few years now whether there’s any point responding to Government consultations.  Why ask the experts when you’ve made up your mind already?
    - Paul Scholey, Senior Partner

    Thursday 24 November 2011

    Flexible Working

    The coalition government is keen to reform employment laws, but for the better? 

    The Beecroft Report, commissioned by David Cameron, calls for the abolition of the right to request flexible working, in addition to the removal of employee protection for unfair dismissal. 

    Currently, employees with children under a certain age and carers are entitled by statute to make a request to work flexible hours, subject to meeting certain qualifying criteria and as long as they follow strict procedures. There is no obligation on an employer to grant the request, but it must be considered seriously. 

    It has been said by the coalition government that it is committed to extending those statutory rights to request flexible working to all employees, not just parents and carers. However, it is feared by Adrian Beecroft, a venture capitalist, that extending flexible working would have a detrimental effect on businesses and would lead to a tidal wave of flexible working requests.

    The Chartered Institute of Personnel and Development (CIPD) in response has made a Freedom of Information request to see how many tribunal claims relate to the right to request flexible working. The figures show that out of 218,100 claims accepted in 2010/2011, only 277 alleged that employers failed to consider a request for flexible working.  229 of these were successfully conciliated and only 10 of the 48 claims that reached the Tribunal were successful. 

    So is it not now clear that the fears expressed about extending the right to flexible working are grossly exaggerated? CIPD say the figures show that most employers already recognise that flexible working is an integral part of the modern workplace and are happy to consider such requests. That may be the case. Or it may be that the statutory right to request flexible working arrangements lacks any real teeth and the procedures to be followed to make a valid request are simply too rigid. It is very difficult for employees to do anything about an employer’s refusal to allow flexible working. 

    Either way, it seems unlikely that the extension of the right will lead to an avalanche of requests. Even if requests were to increase, surely a good employer would recognise that employees who get to work flexibly are likely to work harder and are more loyal. Hopefully, the government will stick to their guns and increase flexible working rights. In this tough economic climate there is too much emphasis on diluting employees’ rights, which could ultimately be counter-productive. Promoting a good work-life balance is so easily forgotten. 

    - Daniel Kindell, Solicitor

    For further information, please contact our Employment Rights team on 0113 245 0733

    Monday 17 October 2011

    Retirement? What Retirement?



    I think we are all slowly coming to realise that with the rising costs of living, increase in university fees and the like, we’ll all be needing to work longer in the future. Also, with improving health and people living longer, many want to work and not retire. With the recent removal of the default retirement age of 65, it’s got to be a good thing that employees will be able to choose to work beyond 65 if they wish to. 


    A recent survey of employers shows this. It indicates that the majority of employers are doing without a default retirement age. The survey of senior HR professionals in the UK, reveals, among other things, that only 3% of employers intend to keep a specific retirement age, 86% of employers are letting employees over the age of 65 continue in the same role and nearly half of employers are considering flexible working arrangements for over 65s. 

    That sounds positive, but on the other hand, only 11% of employers recognise the potential benefit of retaining experienced employees more easily.
    What it does show is a shift in ‘mind set’ which means older employees will find it easier to remain working for their employer well after they reach 65.

    - David Sorensen, Partner

    For further information on Employment Rights, please visit our website or call 0113 245 0733 and ask to speak with our Employment Rights team

    Tuesday 4 October 2011

    EAT rules students should be allowed to see their teacher's face


    The recent news that France has imposed the first Niqab fines on 2 French Muslim women who continue to wear the full-face veil despite the new law banning it, prompts us to think about the position in relation to the manifestation of religious belief in the UK.

    The law appears reasonably well settled and has been consistently interpreted, but many of the well reported cases have been appealed to as high as the European Court of Justice: judgment in the case of Jivraj v Hashwani2011 UKSC 40 has been given this month by the Supreme Court.
    Notwithstanding the hysterical approach adopted by the media, at large the decisions this far taken in the UK have been in line with common sense.

    Significantly, but not widely reported, AishahAzmi, the British Muslim teacher who refused to remove her veil in a primary school when male colleagues were present, was told by the EAT to let her students see her face; an approach most would think in line with common sense – students should be able to see their teachers face, it was argued, and our courts have not disagreed.  Certainly there is no evidence here of political correctness gone mad (much though that is what the media would prefer to report).

    It is right that a proportionate response should be taken when addressing needs in the workplace, but leaving people free in their own time to do as they wish, as long as they are not harming anyone, seems to us to be far more satisfactory in today’s multicultural society than imposing fines on women. 
    - Anna Power, Associate

    Monday 3 October 2011

    Riding Out The Storm Together?


    RIDING OUT THE STORM TOGETHER? MORE LIKE TRAMPLING OVER EMPLOYEES’ RIGHTS WITH A CARTHORSE
    So here it is, the CONdem Government shows its true view of the average working person today by its blatant attempt to dilute workers’ rights in 2 major ways:
    1. By bringing in court fees for Employment Tribunal cases meaning that in a typical case, it will cost a person £1,250 to issue Tribunal proceedings and have a hearing.
      Now, bearing in mind the most common award for unfair dismissal is in the region of £4,500, a person who has just been dismissed is supposed from April 2013 to fork out £1,250 to be able to get justice. This really shows that access to justice for those on average or low wages is becoming a thing of the past, with only the rich (with savings...remember those?) able to afford to get justice from the Tribunal system. How many employees, who have been sacked unfairly, with all the stress of paying the rent or the mortgage, feeding the family and so on, will be able to stump up £1,250 within 3 months of being dismissed (because the three month time limit still applies)? Well, the CONdem Government’s own stats predict that at least 2,000 extra workers will be put off from bringing such a claim – I think it will in fact be many more.  Fees will be even higher for cases where damages of more than £30,000 are sought, as is common in claims of discrimination.
      2. They also plan to extend from April 2012 the period of qualifying service to gain protection from general unfair dismissal from one year to two years in order to make the workplace more ‘flexible’ – flexible of course only for the employer not the employee, who faces an extra year of uncertain employment, during which he or she may be able to be sacked unfairly at any time.
        This shows what the CONdem Government’s ’business-friendly’ approach really means: weakening workers’ rights and making it harder for an average person to get justice against an employer which acts unlawfully or unfairly.
        -        David Sorensen, Partner
        For further information, please contact our Employment Rights team on 0113 245 0733.


        Friday 9 September 2011

        The impact of social networking on employment rights issues


        Acas has produced some Guidance Notes on Social Networking, offering tips on how to manage the impact of social networking on managing performance, recruitment, disciplinary and grievance issues.

        There is also an excellent section on How to Draw up a Social Networking Policy, including practical tips and an explanation of the legal considerations involved.

        For more information on workplace rights, please contact our Employment Rights team on 0113 245 0733.

        Monday 5 September 2011

        Number of tribunal claims falls by 8% in 12 months


        The annual statistics for employment tribunals and the EAT for April 2010 to March 2011 have been published.



        The statistics show that the amount of claims issued in the Tribunal have reduced by 8% in comparison to the 2010 figures. However this still means a total of 218,100 claims were received.


        The statistics also reveal that:   


        * The number of single claims received has fallen 15% over the period in question
        * T
        he number of unfair dismissal and redundancy claims has fallen slightly

        * C
        laims under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 have almost tripled

        * A
        ge discrimination claims have risen 32%

        * T
        he median award of £12,697 for age discrimination claims is the highest of the discrimination strands, with all others around £5,000 and £6,000.


        For further information, please contact our Employment Rights team on 0113 245 0733 or email info@morrishsolicitors.com 

        Tuesday 23 August 2011

        Rioting and Employment Rights

        The recent rioting across the UK has led to a number of queries in relation to people’s employment rights. 

        In relation to those who were involved in the rioting, what will happen about their employment if they have been arrested and subsequently prosecuted?

        In addition, what happens to those who are unable to go to work because their workplaces were attacked in the riots?

        As stated in the ACAS Code of Practice, “If an employee is charged with, or convicted of, a criminal offence, this is not normally in itself reason for disciplinary action”. Essentially, for the criminal conduct to be a disciplinary or dismissible offence it must affect the business in some way or undermine the employer’s confidence in the employee.

        In terms of those involved in the rioting and looting, it is clear from the press reports that the Courts are dealing with those individuals very seriously and the majority are receiving custodial sentences.  Much personal information has appeared in the press about those convicted, including in some instances the name of the employer.

        Given the seriousness of the incidents, some employers may be inclined to summarily dismiss those individuals for gross misconduct for bringing the company into disrepute.  Dismissal in these circumstances might be looked upon sympathetically by the Tribunals.  But arguments will differ depending e.g. on the degree to which the employee has exposure at work to or dealings with the public (in the past cases have been decided against probation workers where their work brings them into contact with young offenders; criminal convictions for rioting are not consistent, it is said, with that sort of work).

        If an employee is unable to attend work for personal circumstances, for example if their house has been damaged in the rioting, then that employee needs to be aware that they will not necessarily be entitled to be paid for any time that they have off, unless there is some provision in the contract which says so.  If there is no contractual term then the employer can lawfully withhold pay until the employee returns to work. 

        However, if the employee is unable to work because the workplace is closed, then assuming the employee is otherwise ready and willing to work, then the employer must continue to pay their wages, unless there is an express contractual right that the employee can be laid off without pay.  If there is such a contractual right, then those employees may be able to claim a guaranteed payment. 

        If the workplace has been completely destroyed then there is an argument that the employment contract has been frustrated because there has been an unforeseen event which makes the parties unable to perform the contract.  If the contract has been frustrated then there has been no dismissal which means that the employee would be unable to claim unfair dismissal and they also would not be entitled to receive any notice.

        Somewhat unusually, if there has been an unforeseen event which has led to the contract being frustrated, the employee may be entitled to receive a statutory redundancy payment under s.136(5) Employment Rights Act 1996, which specifies that such a situation is to be classed as a termination by the employer for redundancy pay purposes.

        However, frustration is a difficult point for an employer to take: the situation may better be dealt with simply as a redundancy situation and the employee may be able to claim redundancy pay as well as still having an entitlement to notice.
        If you would like to speak to us about bringing a claim or are interested in further information on employment rights, please contact our employment rights team on 0113 245 0733.

        State landed with £3m Jarvis bill

        THE 1,200 staff who were sacked without warning by failing rail firm Jarvis are to be awarded more than £3m compensation - more than it would have cost to keep the company afloat.

        The employees - of which 350 were based in York, 300 in Doncaster and 80 in Leeds - arrived for work on March 31 last year to be told they were unemployed. As a result the company failed to meet its statuary obligation to consult and give notice so the staff will be entitled to eight weeks compensation, capped at £380 per week. As Jarvis is no longer operating, it will be the Government which pays the bill and a tribunal court in Leeds yesterday heard that any staff who were unable to find work and therefore claimed Jobseeker's Allowance will have that, and any other relevant benefits, docked from their compensation.

        The staff all worked for Jarvis Rail, Jarvis Fastline or at the York headquarters, Jarvis PLC.
        Union bosses said it was disappointing that a number of workers, particularly those holding management positions, found employment swiftly and would therefore get more compensation than those who have been left jobless. It is also understood that administrators Deloitte went to Network Rail - owners of Britain's rail infrastructure - to request around £3m to keep the company going and retain staff but this was turned down.

        Bill Rawcliffe, of Justice for Jarvis Workers and a member of the RMT Union, said: "This is only the first hurdle and the result is pretty much what was expected because employment legislation clearly states if you do not receive notice you are entitled to claim compensation.
        "We think it is a disgrace that the compensation is being paid for by the taxpayer - that money should be paid by Network Rail which owed millions in work that had been already carried out by Jarvis workers.

        "What is also difficult to take is compensation will have Jobseeker's Allowance and other benefits knocked off, but the management who did not have to claim benefits as they went round the revolving door and straight into other jobs will get the whole payout."

        A Network Rail spokesman was unable to comment last night. About half of the organisation's budget is public money.

        Unions claim some workers, who were also based in Glasgow, Newcastle, and Peterborough, were owed money for months before the company closed. Talks between Network Rail and the administrators officially finished in April 2010.

        The fallout prompted a number of protest rallies, and Mr Rawcliffe claimed that workers from other parts of the UK have been carrying out the rail engineering work.

        Unions were unable to say how many of the 1,200 had now found employment, but Mr Rawcliffe said those they knew of in work were now earning 30 per cent less in wages.
        The tribunal yesterday heard that the company had no money at all to pay staff by March last year.

        Claims against Jarvis will continue with at least 600 unfair dismissal claims likely to be made. Toni Haynes, of Morrish Solicitors, represented the members of the TSSA union at the tribunal.

        "We are obviously pleased with the compensation offer - it is the maximum that we could have asked for," she said.

        "Not all of the staff will receive all of that money, it will depend on their individual circumstances and what they have already received in other benefits.

        "But what is clear is that the amount of money to be paid out of the public purse, is more than the £3m the administrators needed in the first place to keep the company afloat and these people in work."
        - Reproduced with kind permission of The Yorkshire Post and Johnston Press

        Wednesday 3 August 2011

        Employers need to grasp the benefits of flexible working!


        A recent report by Dan Leighton on Re-inventing the workplace has highlighted the significant benefits which Flexible working brings to the workplace. In addition it can aid the UK company growth.

        Employers need to recognise huge demographic changes in the UK workforce. With an ageing population, more women in the workplace and a shift from manufacturing to service based industries has in recent years increased the demand on employers to introduce and offer more flexibility within the workplace. However, some employers still fail to see the benefits.

        The fundamentals of flexible working assist in coping with the  work/family life balance. It is essential for those companies who wish to attract and retain the best talent to implement such policies positively and  promote them within the workplace. On a wider perspective, the benefits are numerous. They  can address the social challenges of shared parenting and an ageing population that requires care. They can also reduce  sickness absence and increase motivation within the workplace.  

        Employers need to grasp the benefits sooner rather than later!

        Wednesday 15 June 2011

        Right to strike?


        I have written previously about the limited UK right to strike, and the political threat to change the voting threshold in ballots for industrial action.

        Vince Cable now suggests that the Government will have to “get tough” on strike laws if the Union movement persists with the threat of widespread strikes in the Autumn.

        We already have some of the most rigid anti-strike laws in the western world. 

        And the reality is that in recent years the number of days lost to industry in industrial action has been at a decades-long low.  The Press love to report a good strike, but truth be told, there haven’t been many lately. 

        The mere threat of an increase in industrial action seems to have set the hares running.  But what use are legal protections for strikers if, the moment serious action is threatened, the Government seeks to step in to prevent it happening?

        I see no evidence of the Government taking a narrow view of the rights of individuals to protest in connection with the Arab Spring.  And whilst of course there are differences between those revolutionary protests abroad and industrial discontent at home, the bottom line has to be that what we can respect abroad we must respect at home; and if a right to protest is not a right effectively to protest, then it is no right at all. 

        People do not naturally or quickly leap into industrial action.  They lose pay for every day they do not work, and in the long run they risk discipline and/or dismissal.  The veritable maze of booby traps that run as a thread through our anti-strike legislation have rendered it pretty difficult for Unions to organise industrial action at all.  If, notwithstanding the best efforts of the legislators, and the natural reluctance of workers to lose money, a strike is lawfully and properly organised, or indeed a series of strikes, the Government should be looking not at how to prevent that protest, but at the policies that have given rise to it.  

        - Paul Scholey, Senior Partner, Morrish Solicitors LLP

        Monday 7 February 2011

        “A modest proposal?”


        The Institute of Directors today tells us: help growth by removing employment rights. The right to request flexible working is cited as a culprit. Get rid of it, says IoD, and the money will come rolling in.

        One has to wonder, is this dishonest politicking, or merely misinformed?

        It’s interesting that the flexible working regime should be one of the areas singled out for attack. It is an easy target, because it smacks of political correctness (and IoD wouldn’t want to be seen attacking sex discrimination laws generally – though that undoubtedly is the agenda). It mainly protects women; it relates especially to childcare issues; it’s soft and touchy-feely and exactly the sort of thing that it’s easy to be cynical about. Bold brave employers need to be able to set their rotas and tough luck if your school hours don’t fit, because onwards and upwards for business and the devil take the hangers-on.

        But there couldn’t, in fact, be a worse target for the IoD’s ire. Because our flexible working “rights” are a hopeless, toothless attempt at paying lip-service to proper flexibility.

        The key is in the name: this is a right to request flexible working. Not a right to work flexibly. If your employer listens to your request, and can point to one of a (pretty exhaustive) list of reasons why it can’t be granted, that’s about the end of it (well, you get an appeal; the employer says no again: The End). Occasionally an employer gets it wrong, procedurally, and a Tribunal can award 8 weeks’ pay if the right buttons aren’t pushed – but as “rights” go, it’s about as useful as a chocolate fireguard.

        So how is this right crippling growth in the UK? No-one has spelled that out, which is unsurprising, since I imagine that your average small/medium employer isn’t troubled by the regime on flexible working for more that what, a couple of hours a year?

        Now, had it been suggested that we should simply abolish a system that doesn’t help anyone very much, I might at least have conceded that the argument was intellectually honest. But instead this is thrown in as part of a generalised attack on employment rights.

        Why not go the whole hog? Abolish the laws on discrimination, unfair dismissal, whistleblowing, redundancy, holidays and the minimum wage. At least then there’s an honest argument that business might save money.

        But it’s an argument that forgets that the best employers have cultures that protect, encourage and develop their workforces. You don’t get the best out of your employee who returns from maternity by insisting that she works 9 till 5. But you might get her loyalty, commitment and hard work by taking a sensible approach to a request for flexibility.

        Employment rights aren’t just there for the benefit of workers. Employers who respect them respect their workforce, and profit as a result. That way might lie growth; the IoD’s approach is nothing more than a race to the bottom.

        Paul Scholey

        Operations Partner
        Head of Employment Rights


        Tuesday 1 February 2011

        Employers Charter? What about the workers?


        From Unite the Union

        Government's charter for bad bosses
        27 January 2011. Unite, Britain's biggest union, has branded a charter produced by the government for employers as a 'charter for bad bosses'.
        BIS, the department for business and skills has produced an employers’ charter which the union believes gives employers a green light to bully and intimidate. It even encourages employers to sack staff.
        Unite general secretary-elect, Len McCluskey, said: "This charter gives bad  bosses a green light to bully and intimidate. It even encourages employers to sack staff. It's no coincidence that the employers' charter comes on the same day the government proposes to make it easier to fire workers, but harder for them to access justice in the courts. The government have declared open season on workers’ rights.
        "In one of the gloomiest weeks for the economy this year we've heard nothing from the government about creating jobs. We only hear about the need for cuts and harassing people out of work.
        "In reality this does employers no favours. Employers who misinterpret this advice will quickly find themselves in court and the guidance threatens to cause chaos across industry."
        ENDS
        Contact: Ciaran Naidoo 07768 931 315
        The ‘charter’ can be accessed here: http://www.bis.gov.uk/assets/biscore/employment-matters/docs/e/11-680-employers-charter.pdf

        Thursday 13 January 2011

        Why the trade union voting standards are higher than general elections


        In today’s Daily Mail:  “Currently, there is no minimum number of union members who must vote in a ballot for strike action, meaning a militant few can bring about industrial action.”

        We see.  That would be, then, exactly like our general elections, where a turnout of fewer than 50% of the population can elect a government to run the country for the next 5 years.

        The “few” can only bring about anything if nobody else bothers voting.  Typical Lazy Mail reporting.

        How many politicians would be enjoying their expenses, we wonder, had each been obliged to win 50%+ of the votes of all their constituents?