HR News, Personnel, Management, Employment, Employers and Business News

The latest HR and employment news from TeamHR. Breaking news stories are added every week to help keep you and your business up to date with the latest breaking news in employment, employment law, personnel management and HR.

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Business Leaders want the Government to consider the introduction of legislation that would enable employers to suspend employees' contracts for up to six months as an alternative to redundancy.

The proposal by the CBI is that workers would then be paid the equivalent of twice the rate of Jobseekers' Allowance - half paid by the government, half by the employer. Under the proposed scheme, employers could take employees back during the six months if business improves. But if demand is still low, workers would be offered the normal redundancy package.

Unions are wary of the proposals. TeamHR said, "There is no doubt that SME employers in the UK would welcome a legislative framework that afforded solutions during a down turn less drastic than redundancy but a lot more effective for more sectors than the existing 'lay off and short time working provisions'. However, the 'six month suspension idea' needs a lot of work and more thought; redundancy lump sum and notice period payments for many represent an important cushion when wages are lost. I welcome the proposals as a starting point for debate needed urgently for the thousands of SME employers, and their employees, in the UK that have not been able to achieve, or perhaps didn't even consider 'modest salary cuts for all instead of job losses' in recent months."

The Ethnic Minority Task force of the DWP commissioned the sending of thousands of bogus job applications for jobs with UK employers to help research overall levels of discrimination in the UK jobs market.

The study was commissioned to test whether employers are discriminating against applicants with foreign-sounding names. 3,000 such job applications were made between November 2008 and May 2009, in response to "real" jobs that were advertised in the press and online. Applicants' details for each job were "carefully matched" though not identical.

Employers who offered interviews to the bogus applicants were put through to a phone number where their offer of an interview was declined.

Although the research findings are not yet complete, it has been reported that the initial results indicate that some employers do still discriminate against people solely on the basis of a candidate having an ethnic minority sounding name. The DWP is reported to be considering how such an unfair outcome can be overcome.

The DWP is insisting that the data captured will be maintained in confidence and those employers whose adverts were used as part of the study will remain anonymous.

Employers may be interested to know that there have been instances in the past where claimants have used similar tactics to those adopted by the DWP in this research study, of putting in more than one application for a job but using different surnames, in order to try and win damages at employment tribunal only to be declared vexatious litigants at a later stage of the tribunal process.

Ruling on whether a service provision change falls within TUPE (Metropolitan Resources v Martin Cambridge)
The Employment Appeals Tribunal (EAT) considered in Metropolitan Resources v Martin Cambridge whether a contractor taking over the provision of services but providing those services in a new way at a new site meant that TUPE no longer applied.
The EAT held that a "..common sense and pragmatic approach is required.."; that the fundamental question for a tribunal is "..whether the activities carried on by the alleged transferee are fundamentally or essentially the same as those carried out by the alleged transferor.." According to the EAT, "Where one contractor ceases and another commences service provision with differences in time, manner and/or place, TUPE can still apply."

Bank worker not required to repay overpayment of wages (Keenan v Barclay's).
An Employment Tribunal (ET) has held that a bank worker does not have to repay any of the £20,000 she was overpaid over a three-year period and she must be allowed to keep her inflated salary.
The worker, Mrs. Keenan worked part-time for the Woolwich and was told that when Barclay's took them over she would receive a 'significant' pay rise. Therefore, when her salary increased from £9,500 to £17,000 she assumed this was her promised increase. Unfortunately due to an error she should have been paid a pro rata amount of £17,000 to reflect her part-time hours.
To make things worse, on the basis of her increased wage she applied for a mortgage. Barclay's even gave her a reference confirming her salary as £17,000 per annum as part of that mortgage application. Mrs. Keenan also continued to receive pay rises and a performance-related bonus without the bank spotting their error. It was only after three years that the overpayment was finally realised and the bank tried to reduce her salary and to recover the £20,000 over-payment.
The ET held Barclay's to be totally to blame for the error. The tribunal also found that Mrs. Keenan was an honest person who would have spoken up if she had thought the bank had made a mistake. Therefore, there was no 'unjust enrichment' on Mrs. Keenan's part and she should keep the money.
This case illustrates the common law of 'estoppel' - Mrs. Keenan was not at fault; she had spent and committed the money; her employer had effectively confirmed the wages were hers; and a great deal of time had gone by before the bank realised its error. Of course, if it was patently obvious that an employee knew they had been overpaid and had just kept quiet then the outcome could have been totally different.

Muslim cocktail waitress asked to wear skimpy dress wins damages (Lemes v Spring & Green).
Some of you may recall news headlines last year reporting that Fata Lemes had resigned from her job at the Rocket Bar in Mayfair when she was asked to wear a red dress which she claimed made her look like a prostitute.
The case has now been heard at Employment Tribunal and Ms. Lemes won £2,919.95 in compensation for hurt feelings and loss of earnings. The panel at Central London Employment Tribunal found that she had overstated the trauma caused by being asked to wear the sleeveless dress; they also rejected her claims that she was left with no choice but to resign, but they did conclude that her employers' insistence that she wear the dress amounted to sexual harassment. The tribunal stated: "The effect of requiring her to wear the dress was to violate her dignity. It created an environment for her that was degrading, humiliating and offensive."

Ruling on length of service as part of a redundancy selection criteria (Rolls-Royce Plc v Unite the Union).
Length of Service and Redundancy
Court of Appeal confirms that length of service as part of a redundancy selection matrix is lawful, despite it constituting indirect discrimination on the grounds of age but employers should use this criterion with caution.
Although the Employment Equality (Age) Regulations 2006 make it unlawful to discriminate on the grounds of age, indirect discrimination, may be justified if an employer can show that the use of a criteria such as length of service in redundancy selection is a proportionate means of achieving a legitimate aim.
In Rolls-Royce Plc v Unite the Union, Rolls-Royce operated a redundancy selection matrix which included as one of its criteria, length of service. Extra points were awarded to employees for each year of service completed. This selection matrix was agreed between Rolls-Royce and the Union.
Rolls-Royce wanted to stop using length of service as a method of selection because it did not favour its young workers who perhaps did not have such long service. Rolls Royce asked the High Court to make a Declaration that the use of length of service as a redundancy criterion discriminated against younger members of the workforce who had less opportunity to accrue length of service and was therefore unlawful under the Age Regulations. The Union argued that its inclusion as a criterion was fair and that although it did on the face of it indirectly discriminate against younger workers, its inclusion was a proportionate means of achieving a legitimate aim and was therefore justifiable.

The High Court and Court of Appeal, by majority, held that although using length of service in a redundancy matrix did constitute indirect discrimination, it could be justified under the Age Regulations. The legitimate aims of Rolls-Royce were the maintenance of a stable workforce and to reward loyalty.
The Court of Appeal stated that length of service was one of a number of criteria used by Rolls Royce and was not overly weighted or singularly decisive in selection for redundancy. They stated that its use was also consistent with the over arching concept of fairness and had not been challenged by younger members of the workforce.
The key points to note are that justification of length of service depended upon the facts of each case and that it will be for Employment Tribunals to determine whether its use was discriminatory on a case by case basis. That means employers who choose to use length of service could be found to be discriminating against employees by using such a criteria when selecting for redundancy and facing the prospect of having to justify themselves at a later stage if a claim is brought by an employee.
We strongly recommend that employers make sure that if they wish to include length of service as part of their selection for redundancy criteria that it is used together with other objective and evidenced criteria (e.g. records of attendance, knowledge, appraisal, achievement of objectives or wider contribution to the company) and to make sure that it is not too heavily weighted as a criterion. Furthermore employers must be clear what their legitimate aim is when including length of service as a criterion and make sure its use in achieving that aim is proportionate - i.e. you must reflect and measure whether the inclusion of the criterion, and/or its weighting and/or the way the criterion is structured into different length of service groups over-delivers a particular age profile amongst those retained or those selected for redundancy.
Remember when giving comment and advice on a non-specific basis through our newsletter, news flash service and/or our website, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that you seek professional HR or legal advice.

Weekly working time limits for doctors in training will reduce to 48 hours on 1 August 2009.
Weekly working time limits for doctors in training will reduce to 48 hours on 1 August 2009. With effect from 1st August 2009 the working time limit for doctors in training will be reduced from 56 hours per week to 48 hours per week (The Working Time (Amendment) Regulations 2003 amend the Working Time Regulations 1998).
More information available here.

Employers will NO longer be able to include tips as part of the minimum wage payment from 1 October 2009.
With effect from 1st October 2009 it will be unlawful for employers to use tips, service charges and gratuities to top up staff pay in order to meet the national minimum wage.
More information available here.

National Minimum Wage rises from £5.73 per hour to £5.80 per hour; and the development rate from £4.77 per hour to £4.83 per hour; and the rate for workers aged 16 to 17 years increases from £3.53 to £3.57 per hour on 1st October 2009.
On 1st October 2009 the main rate rises from £5.73 per hour to £5.80 per hour; the development rate from £4.77 per hour to £4.83 per hour; the rate for workers aged 16 to 17 years increases from £3.53 to £3.57 per hour.
On 1st October 2009 classes of persons who do not qualify for the national minimum wage are specified.
On 1st October 2009 the day value of the accommodation amount that can be taken into account where an employer provides an employee with housing increases from £4.46 to £4.51.
More information available here.

Ruling on holiday pay accrual during long terms sickness absence (Stringer v HRMC).
More information available here.