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.

Please see our previous news pages.

Week commencing 27/7/2009

Week commencing 20/7/2009

Week commencing 13/7/2009

Week commencing 06/7/2009

Week commencing 29/6/2009

Week commencing 22/6/2009

Proposal that retirement at 65 should be scrapped.

Readers may recall the ruling, in March 2009, by the European Court of Justice in the long running Heyday test case that forced retirement at 65 can be justified under European law only if it is a 'proportionate' means of achieving a legitimate employment policy. The case was started by Age Concern backed group Heyday in 2006 when it challenged mandatory retirement ages.

However, the Work and Pensions Committee has said that the default retirement age, which allows employers to compulsorily retire employees at the age of 65, should be removed from the Equality Bill. The Committee summarised evidence from the CBI and Help the Aged in its report, "The Equality Bill: how disability equality fits within a single Equality Act". The report concludes that in light of the European Court of Justice ruling in Heyday, the government should scrap the default retirement age; that the regulation contradicts the government's wider social policy and labour market objectives to raise the average retirement age and allow people to continue to work and save for their retirement.

The High Court is due to hear the Heyday case in mid July 2009 and the Committee says that even if the High Court decides the retirement age can be objectively justified 'it seems inevitable that [the regulations] will be interpreted in a way that limits the reasons employers can rely on to justify direct discrimination.
More information available from:

Swine flu: Staff could be allowed two calendar weeks off with no sick note.

Under Government proposals, employees could be allowed to authorise their own sick leave for as much as two weeks as the Government seeks to contain both the swine pandemic and its impact on front line NHS resources. If the proposals come into effect it is likely that it would only be a temporary measure, perhaps for a period of 6 months, and only applicable to absence due to swine flu.

The news, first announced in Personnel Today last week, has alarmed many employers and employers' groups who have expressed concern that the scheme will simply give people licence to take 14 days' sickness absence.

However, TeamHR Ltd said, "Certainly for those employers offering generous paid occupational sickness absence leave there is a risk of abuse but I think it is important to remember that the vast majority of employers in the UK are in fact SME businesses. I would say that most SME businesses provide little if any more than statutory sick pay entitlement, simply because it is not financially viable for them to do so, and their employees will have little incentive to stay away from work with the prospect of perhaps two week's SSP rather than basic pay".

"Most cases of swine flu in the UK are mild, but it is all too easy to be lulled into a false sense of security; the autumn and winter months will truly demonstrate the impact of this pandemic in the UK; the Government needs to anticipate and take pro-active steps to cope for the likely increase in number of people looking to contact their GP once the cooler weather arrives in the Autumn, and whilst the elderly and those with an underlying illness are most vulnerable it is inevitable that GP surgeries will see a step change increase in demand for sickness certificates during the Autumn and Winter months due to swine flu and the proposed 'two week sick note' has everything to do with managing that foreseen administrative burden in GP surgeries throughout the UK".

The current advice on the NHS website remains:
"Catch it, bin it kill it". In other words it remains the case that employers should encourage their workers to catch their sneeze in a tissue, place it quickly in a bin and wash their hands and work surfaces regularly to kill the virus.

In terms of going to work, if someone has been in contact with someone known to have swine flu, as long as they do not have flu - like symptoms they should continue going about their normal activities, including going to work. It can take up to seven days (normally two to five days) after infection for swine flu symptoms to develop. If someone develops symptoms, they should stay at home and follow the general advice.

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."

House of Lords disability ruling.
The House of Lords has held that people with a physical or mental condition that varies in severity should be termed disabled if it is likely their condition will become severe again in the future.

This further extends the scope of the term 'disability'.
The case concerned Elizabeth Boyle who has worked at SCA Packaging for 32 years. After developing vocal nodules she managed the illness through speech therapy and speaking very quietly. She took legal action nine years ago when partitions near her desk were removed, even though she objected and her surgeon advised against it. The company argued Mrs Boyle was not disabled as her condition no longer had an adverse effect on her life.

This decision by the House of Lords extended the definition of disability to afford protection to those whose disability might be invisible, in remission and/or controlled by medication, or as in this particular case, by the set-up of the physical working environment (which had enabled the individual to speak quietly whilst working).
The House of Lords has held that people with a physical or mental condition that varies in severity should be termed disabled if it is likely their condition will become severe again in the future.
More information available here.

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.