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 1/10/2009

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Week commencing 6/7/2009

Week commencing 29/6/2009

Week commencing 22/6/2009

Constructive Dismissal (Court of Appeal Decision in Stuart Peters Ltd v Bell).

In the case of Stuart Peters Ltd v Bell (UKEAT0272/08) the EAT had ruled that an employee did not have to give credit for earnings received during what would have been their notice period in a constructive dismissal claim. The employers appealed to the Court of Appeal, who have reversed the EAT's decision.

One of the leading cases on compensation is Norton Tool v Tewson (1973) which held that where an employee is dismissed without notice and without payment in lieu of notice there should be no deductions made from compensation for any earnings received from new employment during what would have been the notice period. This became known as the "Norton Tool Principle". However, the EAT in Stuart Peters Ltd v Bell [2009] sought to extend this principle to cases of constructive unfair dismissal. The Court of Appeal is basically saying that the Norton Tool Principle does NOT apply to cases of constructive dismissal. This is a common-sense decision in favour of employers.

The situation is not, as before, that employees who are held to have been unfairly dismissed, whether summarily or without notice do not have to give credit for earnings received during what would have been their notice period; but an employee who has been constructively unfairly dismissal does. In either case, an employee will have to account for earnings received when calculating any future loss of earnings.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

As Baroness Scotland is fined for failing to keep copies of the documents that led to her unknowingly employing an illegal worker, we ask, what records does your business have for ALL of your workers?

Attorney General Baroness Scotland has been fined £5,000 after being found to have employed an illegal worker as a housekeeper.

The UK Border Agency said she took steps to check Tongan Loloahi Tapui's right to work but had not kept a copy of documents, as required by law.

Employers should take note that whilst the UK Border Agency were, in this case, satisfied the employer (Baroness Scotland) did not knowingly employ an illegal worker and that the employer did examine documents about the worker's right to work in the UK and that as a result employment took place in good faith, the employer did not retain copies of the documents proving the right of the worker to work in the UK and as a result the employer is paying an administrative penalty.

The warning to employers is that doing the checks is not enough - keep copies of documents that provided sufficient proof to you that you were in a position to employ someone - anyone, including those holding a UK passport or long UK birth certificate. If you are unsure about the documents you need to see check out the latest information on the Borders Agency website [link to]. The key is proof of NATIONALITY (not proof of residency).

In general those with a nationality of one of the following countries will have the right to work in the UK: Austria, Germany, Lithuania, Slovakia, Belgium, Greece, Luxembourg, Latvia, Portugal, Slovenia, Cyprus, Hungary, Malta, Spain, Czech Republic, Iceland, The Netherlands, Sweden, Denmark, Republic of Ireland, Norway, Switzerland, Estonia, Italy, Poland, Finland, France, Liechtenstein, Romania. UK including: Channel Islands, Isle of Mann.

Romanians and Bulgarians Nationals of a state that recently joined the European Union (e.g. Romania, Bulgaria) may have to register with the Borders Agency and apply to the Borders Agency for their permission before start to work in the UK. Employers must, in addition to proof of nationality obtain proof of the right to work in the UK - usually a letter or certificate or card issued by the Borders Agency to the Employee (check the Borders Agency website) for the latest information.

British Dependent Territories Employers should not assume someone whose nationality is of a British Dependent Territory has the automatic right to work in the UK. Check entry visas very carefully and we could recommend you do a right to work in the UK check through the Borders Agency before offering employment. These countries are:

Anguilla, Falklands Islands and Dependencies, St. Helena and Dependencies, Bermuda, Gibraltar, The Sovereign Base areas of Akrotiri and Dhekelia (Cyprus), British Antarctic Territory, Montserrat, Turks and Caicos Islands, British Indian Ocean Territory, Pitcairn, British Virgin Islands, Henderson, Cayman Islands, Ducie and Oeno Islands, Commonwealth Countries.

Employers should note that in most cases someone whose nationality is of a Commonwealth Country will NOT have the automatic right to work in the UK.

Check entry visas very carefully and we recommend you do a right to work in the UK check through the Borders Agency before offering employment. These countries are:

Antigua and Barbuda, Grenada, New Zealand, Tanzania, Australia, Guyana, Nigeria ,Tonga, The Bahamas, India, Pakistan, Trinidad and Tobago, Bangladesh, Jamaica, Papua New Guinea, Tuvalu, Barbados, Kenya, St Kitts and Nevis, Uganda, Belize, Kiribati, St. Lucia, Vanuatu, Botswana, Lesotho, St. Vincent and the Grenadines, Zambia, Brunei, Darussalam, Malawi, Samoa, Zimbabwe, Cameroon, Malaysia, Seychelles, Canada, Maldives, Sierra Leone, Cyprus, Malta, Singapore, Dominica, Mauritius, Solomon Islands, Fiji, Mozambique, South Africa, The Gambia, Namibia, Sri Lanka, Ghana, Nauru, Swaziland.

Everyone Else It is likely that almost any other national would require a work permit to work in the UK. A points based system is now in operation to govern the immigration of workers and employers must familiarize themselves with the new rules before contemplating the possible employment of an individual of any other nationality. Information is available on the Borders Agency Website.

UK High Court says Retirement Age of 65 years legal (for now).

On 25th September 2009 judgment was finally handed down in the Heyday Case. The case concerned a challenge to the Default Retirement Age (DRA) of 65 years in the UK Age Regulations. The Court held that the current default retirement age of 65 was both legitimate and proportionate. However, the Court also concluded that there were powerful reasons why a default retirement age of more than 65 years should, in fact, have been adopted in the UK age retirement legislation. It is likely that the legislation, subject to review, will change - with a change to a DRA of 70 years being predicted by many as the most likely outcome.

All employers must, for the time-being, continue to write to people not less than 6 months and not more than 12 months before an employee attains the age of 65 years to let them know of their intention to retire them on their 65th birthday.

Employers must, at the same time, also to let the employee know of their right to request to be retained beyond age 65 years.

Where an employee makes such a request an employer is obliged to consider the request but should it decline the request it does not have to provide a reason for doing so. Where a request is agreed, it is usual for retirement to be deferred by say a year, and the process of writing to the employee, advising of their right to request to be retained, described above is repeated.

To reduce the risk of a claim at Tribunal from an employee retained beyond age 65 years, employers must take note that the terms and conditions of employment for an employee retained beyond age 65 years remain unchanged unless a change (e.g. hours, job, pay etc) has clearly and properly been mutually agreed between the employee and the employer.

Increase in Paternity Leave from 2011.

The Government has published details of its plans (draft regulations) for Paternity and Adoptive Leave.

It is likely that the new regulations will come in effect from April 2010 enabling mothers of children due on or after 3 April 2011 to transfer up to six months of their maternity leave to the father when they return to work. This may or not be paid leave, depending upon the amount of statutory maternity pay already received by the mother; pay eligibility will be determined by reference to the mother's earnings. Similar provision will apply to adoptive parents.

However, plans to increase the maternity (or adoption) pay period from 39 to 52 weeks seem to have been shelved.

The draft regulations propose two new pieces of legislation, the 'Additional Paternity Leave Regulations 2010' and the 'Additional Statutory Paternity Pay (General) Regulations 2010'.

If approved, these would apply to:

In brief, the more detailed proposals are:

Another decision confirming the right to Legal Representation at an Internal Disciplinary Hearing (Kulkarni v Milton Keynes Hospital NHS Trust).

Though its decision in Kulkarni v Milton Keynes Hospital NHS Trust, the Court of Appeal has determined that:

The second of these points has significant implications for all public sector workers in particular, and is consistent with the decision in R (on the application of G) v The Governors of X School reached in the High Court earlier this year.
Click here if you want to know more about this latest case.

New Vetting and Barring Scheme (VBS) for those working, or volunteering, with vulnerable groups comes into effect on 12 October 2009.

The new Vetting and Barring Scheme (VBS) comes into effect on 12 October 2009 does NOT replace CRB disclosures, which are required in addition.

From July 2010 those wanting to begin working with children or vulnerable adults, or who are moving jobs, can voluntarily register with the ISA. The second phase will be from November 2010 when it will be illegal to take on an employee or volunteer who is not ISA registered. The one-off registration is likely to cost £64 and is the responsibility of the employee; registration will be free for volunteers. Employers will be able to check an individual's ISA registration online and ask for any updates on their status to be passed to them. The increased volume of CRB checks expected as a result of the new scheme has led the Home Office to drop the cost of a standard check to £26 from 1 October 2009.

The ISA will maintain two barring lists, one for adults and one for children, which will replace the three lists currently maintained by two different Government departments (the Protection Of Children Act List (POCA), the Protection of Vulnerable Adults List (PoVA) and List 99).

Bullied Female City Lawyer claiming £12m.

A former City Lawyer (Switalski v F&C Asset Management) is awaiting news of damages to be awarded in her favour after a tribunal hearing review upheld a ruling that she was a victim of sexual discrimination and sexual harassment.

Ms Switalski, 52, is claiming compensation of £12m from F&C Assets Management having won her employment tribunal claim. The Central London tribunal heard that her manager, on joining the firm, started to question her flexible working hours, holidays and expenses. It was said he became "fixated" with her working hours, which were designed to give her more time with her family, and checked up on her via colleagues, despite her hitting her performance targets. Mrs Switalski has four children, including a son with cerebral palsy and another with Asperger's syndrome. The tribunal heard Mrs Switalski's deputy was chosen, instead of her, to secure a hedge fund; she was also overlooked for management roles. Her lawyer said a male colleague, who also had children with special needs, was allowed to work from home to care for them.

TeamHR said, "Setting aside headline grabbing speculation as to the likely compensatory award in this case, the wake-up call for employers here, once again, is that achievement of a work-life balance, and consistency of treatment between men and women employees, are reasonable expectations, that will be supported at Tribunal, of employees in the workplace. The work-place today is very diverse, a multitude of responsibilities for dependents will be found within any organisation and employers are expected to adopt a fair and reasonable approach in considering how they might accommodate (flexible working) the practical needs of employees to enable them to combine work and home commitments. It's also about ensuring that people don't find themselves being over-looked for promotion or other opportunities because of their flexible working needs or flexible working arrangements. The days of senior and key jobs having to be "full time" and "all hours" only are long gone; employers must focus on genuine requirements and be prepared to challenge the status quo when it comes to aspects of a job that might, at best, be unnecessary, simply a question of habit, "it's always been like that", or, at worst, unlawfully directly (direct sex discrimination) or indirectly (indirect sex discrimination)discriminatory."
More information on the BBC.

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 reduced to 48 hours with effect from 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.