Wednesday, 30 April 2014

Small Business Employment Law Newsletter

My periodic newsletter on all things employment law related that I think you should be aware of.
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Dear <<First Name>> ,
 
This month is mostly flagging trends in employment law, rather than specific changes to actual legislation.  As we have a general election next year, (not to mention the EU elections in May), some of the political heavyweights have started to comment on what they believe will be populist topics.      You will have to make up your own mind!

Kind regards,     Paul 


First, the news:

Ed Miliband promises war on zero hours contracts;
The CIPD has today offered it's broad support to Labour party proposals to prevent the exploitative use of zero hours contracts, but warns that some recomendations go too far and urges policy makers to remember that, in many cases, zero hours contracts work well for both workers and their employers         read more

My comment :

  As I may have opined earlier,  you really will have to choose which of the various stances you think you could trust from all this hot air!
Newsflash:
Small employers may not now have to pay as much national insurance contributions (NIC) .
From the 6th April 2014 the "Employment Allowance"  changes, and if you usually pay less than £2000 pa, you might not have to pay anything at all       read details
Workers told "Speak English, or Face The Sack!"

Foreign workers employed by arts and craft chain Hobbycraft have been told to speak English or face the sack.
Staff at the supplier's distribution warehouse in Burton-upon-Trent, Staffordshire, were hauled in for a meeting this week after difficulties arose with different nationalities conversing only in their native tongue.
 read more
 
My Comment :   here we go again with automatic discrimination claims, what is wrong with asking people to speak English when it is the majority language in any given situation?   I've heard this argument before, in the context of a care home, when elderly English speaking residents felt uncomfortable when care workers talked accross them in their (the carers) own language.         Surely it's not wrong to seek some balance?
 

On the other hand:

Although ultimately unsuccessful, the employment tribunal claim in Griffin v Hyder Brothers Ltd is a good example of some of the problems that can occur when colleagues insist on communicating in their first language to the possible exclusion of other workers who do not speak this language.
 
 

And finally tonight !
Beware, if you let a practice, (say, a bonus at Christmas) reoccur often enough, it can become "custom & practice" and enshrined in your contract of employment, as if you'd put it there in the first place.    read this
 

No limits does haressment know

The tribunal in Nolan v CD Bramall Dealership Ltd t/a Evans Halshaw Motorhouse Worksop highlighted evidence of age bias against an older worker as including banter related to his age, including colleagues nicknaming him “Yoda”.


Stroppy Teenager Jibe:

In Roberts v Cash Zone (Camberley) Ltd and another, an age discrimination case brought by a young worker, the employment tribunal held that a manager’s use of the words “teenager” and “kid” to describe the claimant amounted to harassment.
 

The Toy Helicopter and The Turban:

In Bal v Secretary of State for Work and Pensions (Jobcentre Plus), the claimant argued that a colleague’s suggestion that a radio-controlled toy helicopter, which was being flown around the office as a joke, be landed on the “flat surface” of his turban was religious harassment.
 

The St Patrick's Day Hat :
In Brown v Young & Co’s Brewery plc, the tribunal had the unusual task of considering whether or not a manager harassed a black pub worker when he told him that he “looked like a pimp” when he was wearing a promotional St Patrick’s Day hat.






 
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Health & Safety Myths

A light hearted look at some of the idiotic things we hear.
CASE 281- Junior school bans children bringing in a snack of fruit or rice cakes:
A Junior School is to ban children bringing a snack of fruit or rice cakes to school on the grounds of "health and safety". Their reasoning is that this is a health and safety risk to children at school         true / false  ?
 
.
CASE No. 276   restaurant staff declared that pork cracklin' is not allowed to be served for health & safety reasons........
Enquirer was told by restaurant staff that pork crackling is not allowed to be served for Health and Safety reasons! It may splash the chef!               true / false ?

CASE 278    17 year old prevented from taking part in a high wire activity as wearing a stud earing! .......
When attending a high wire adventure park the enquirer's daughter (aged 17) was prevented from taking part as she had a small stud earring that could not be removed. She was advised that if she was over 18 she could do the activity.  true / false ?
 The information contained in these pages is an HR overview and not intended to be comprehensive legal advice, always seek specific qualified advice before taking any action that could lead to litigation.   Equally, were we have provided links to external web pages, we are not responsible for the content of other sites.

Copyright © 2014 paul murray HR consultant, All rights reserved.


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Monday, 28 April 2014

Speak English or you're fired !


HOBBYCRAFT

 Foreign Workers Banned from Speaking Their own Language.

Foreign workers employed by arts and craft chain Hobbycraft have been told to speak English or face the sack.        Staff at the supplier’s distribution warehouse in Burton-upon-Trent, Staffordshire, were hauled in for a meeting this week after difficulties arose with different nationalities conversing only in their native tongue.

 Staff were told the firm’s policy was they should only use English during work hours and, if caught doing otherwise, they could be disciplined.   Chris Fenlon, people director for Hobbycraft, said: ‘Having the ability to speak English is part of the recruitment criteria in our distribution centre, however within the social areas colleagues can speak all languages
But one Polish worker, who asked not to be named for fear of repercussions, said that she thought the move was ‘silly’.
She said: ‘Our managers forbid us from speaking to others in any language but English.
‘The first few months were not that bad and, if they spotted someone using any other language, the person would basically get told off.
‘But then all staff were called to the canteen to be told that we were only allowed to speak English while working and, if we do not, we will face punishment.
I know it sounds silly but I think it is something that is important and needs raising.’
However, the move could land bosses in hot water as Slater & Gordon law firm warns the policy could be indirectly discriminatory and could lead to compensation claims.
Claire Dawson, employment lawyer at the firm, said: ‘There would certainly be a potential claim for indirect racial discrimination.
‘Although this policy is going to apply to all staff obviously it will put staff who are not native English speakers at a disadvantage compared to those who are.
‘It would be natural for workers of the same nationality to speak to each other in the same language.
‘Where there are health and safety reasons requiring people to give clear instructions I can absolutely see there would be potential justification but to impose a blanket ban I think would be difficult to justify.’         full article from Dail Mail    

Friday, 25 April 2014

Miliband War On Zero Hours Contract


CIPD welcomes Labour party proposals on zero hours contracts but warns that some recommendations go too far

 

The CIPD, the professional body for HR and people development, has today offered its broad support to Labour party proposals to prevent the exploitative use of zero hours contracts, but warns that some recommendations go too far and urges policy makers to remember that, in many cases, zero hours contracts can work well for both workers and their employers.
The CIPD backs the call for greater clarity over employment status terms and conditions, a point which the Institute has made in its response to the BIS and Pickavance reviews into zero hours contracts, and agrees zero hours workers should be compensated if shifts are cancelled with little or no notice.
However, proposals to give zero hours workers the right to request fixed hours after six months and to give some zero hours workers an automatic right to a fixed hours contract after 12 months go too far. The CIPD believes a right to request fixed hours after six months, putting an onus on employers to demonstrate that their business needs could not be met by any other form of flexible contract, would not combat job insecurity, because employers would seek to get around this by providing very low minimum hours contracts or by using agency workers instead.
An automatic right to a fixed hours contract could have similar unintended consequences. For example, employers might cease to use zero hours workers before the 12 month deadline, adopting short hours contracts or using agency staff. The CIPD suggests that a light touch right to request a minimum number of hours after a year would be a preferable alternative.
Ben Willmott, head of public policy at the CIPD, comments: "We broadly welcome the Labour proposals to reform the use of zero hours, with a caveat over the plans to provide a right to request fixed hours after six months and an automatic right to fixed hours for some zero hours staff after 12 months unless the employee or worker seeks to opt out of the arrangement. This last suggestion in particular would increase red tape, and is likely to lead to disputes and create more work for employment lawyers. Our research with employers suggests that employers would respond by using very low minimum hours contracts or increasing the use of agency staff if these types of restrictions on zero hours were introduced.
"It is important the debate about zero hours contracts is based on evidence rather than anecdote. Our research finds that, overall, zero hours workers are as satisfied with their jobs as other workers, report better work-life balance and lower levels of stress. However our research did highlight areas of concern, for example almost half of zero-hours workers say they receive no notice at all (40%) or find out at the beginning of an expected shift (6%) that work has been cancelled.
"CIPD research shows that the main reasons employers use zero hours contracts are to manage fluctuations in demand and to provide flexibility for the individual. About a fifth of zero hours contract employers say that working hours for the zero hours staff are broadly the same each week and it is right that such employers should think carefully about whether they need to use these types of working arrangements. We think a better way of encouraging employers to do this would be to introduce a light touch right to request a minimum number of hours after a year." 
This informative piece from CIPD

Thursday, 24 April 2014

Uneven ‘custom and practice’ can change employment contracts






Employer’s inconsistent approach meant employees were due more redundancy pay
In the recent case of Peacock Stores v Peregrine the Employment Appeal Tribunal upheld a tribunal decision to imply a term into redundant employees’ contracts entitling them to enhanced redundancy payments.
Facts
Peacock Stores made a number of redundancies from 1971 to 2012. There was a written policy on redundancy procedure but it did not specify whether redundancy payments would be restricted to the statutory scheme, where there is a cap on what constitutes a week’s pay and on the number of weeks that can be paid out. Between 1971 and 2002, the employer had consistently removed these two caps when applying the statutory calculation.
Between 2002 and 2006 there were more redundancies. In 2012 a number of further redundancies were made but the redundancy payments were not calculated according to the enhanced formula which the employer had applied in the past. Many employees received only the statutory minimum amount. These employees subsequently brought claims for breach of contract alleging that there was an implied term in their contracts of employment requiring the employer to pay them enhanced redundancy pay using the uncapped formula.
Tribunal and EAT
The employment tribunal commented on the “dearth of specific information” available in the case but, in the absence of any evidence to contradict the employees’ claim that the employer had applied the enhanced formula in the past, it concluded that the same ‘uncapped’ calculation was used between 2002 and 2006. The position after 2006 was unclear because the employer had made a number of redundancy payments without any consistency in the approach it adopted. The tribunal decided that by 2006 there had been a contractual term implied into the employees’ contract and, therefore, the employees were entitled to the enhanced redundancy payment. The employer appealed.
The EAT supported the tribunal's view that there may have been a variation in practice since 2006, but this did not change that implied term. The employer’s appeal was, therefore, dismissed.
Comment
An implied term in an employment contract can come from custom and practice - that is well established in law. However, this case looks more concerning for businesses - here the employer's inconsistent practice in relation to redundancy payments since 2006 led to a contractual term being implied by a tribunal.
There are practical steps that employers can take to prevent such situations arising. For example, companies could apply any discretion they have over redundancy payments on a case by case basis, and clearly document it or, better still, only offer an enhanced discretionary payment when it is subject to a valid settlement agreement. However, what this controversial case does emphasise is the importance of understanding the implications of an employer's practices, past and present. Employers should ensure that discretionary payments do not become contractual and, where there is a risk that this may be the case, manage that risk to avoid this type of claim arising.

Andrew Haywood is a partner in the employment team at Penningtons Manches
For more employment law
articles, visit    HR INFORM

Wednesday, 23 April 2014

Could the National Theatre be required by law to re-engage musicians in the production of the War Horse?

Interim Injunctions and Right to Work





In December 2012 the National Theatre took the decision to cease using a live orchestra during productions of the War Horse, from March 2013 the musicians' roles were dramatically reduced and in March 2014 the National Theatre gave notice to the musicians to terminate their contract on grounds of redundancy.

The Claimant musicians sought an injunction to require the National Theatre to engage them to play their instruments in the production of War Horse.

Mr Justice Cranston refused the application for an interim mandatory injunction for the following reasons:
 
  • it would amount to a breach of the Article 10 ECHR rights of the producers and artistic team
  • having decided that the live orchestra did not add to the production there was a loss of confidence such that on ordinary principles specific performance was unlikely to be ordered at the final hearing
  • the production had already been rehearsed without live musicians meaning the order would require reworking of the production
damages would be an adequate remedy for the musicians but not for the producers and the National Theatre.
My Comment :      We don't often see musicians getting involved in industrial disputes,  often because in the  music industry musicians are self employed and will not have the same rights as regular employees.    I regret though that Mr. Justice Cranston should have made his judgement on the basis that   "the live orchestra did not add to the production" (!)   has this person never been to the theatre?

 

thanks to the excellent Daniel Barnett's  site for this piece  see them at


Tuesday, 22 April 2014

SMALL BUSINESSES CAN RECLAIM EMPLOYMENT ALLOWANCE, (T&Cs apply!)


 Employers can reduce the amount of National Insurance contributions (NICs) they pay for their employees by up to £2,000. This is called the ‘Employment Allowance’.
Employment Allowance can be claimed from 6 April 2014.
You won’t have to pay any employer National Insurance contributions at all if you usually pay less than £2,000 a year.
Up to 1.25 million businesses and charities will benefit from Employment Allowance. Around 450,000 businesses and charities won’t have to pay any employer National Insurance contributions at all.
Use the Employment Allowance calculator to see how the allowance could affect your contributions.

Eligibility

Employment Allowance is for nearly all employers that pay Class 1 National Insurance contributions on their employees’ and directors’ earnings. This includes:
There are a small number of businesses and organisations that can’t claim Employment Allowance.

How to claim

You can claim through your payroll software.
Find out more about claiming Employment Allowance and what the government is doing to make it easier to set up and grow a business.

Wednesday, 16 April 2014

Tribunal watch: Gay man greeted with “hello darling” and limp wrist gesture

An employment tribunal ordered an employer to pay £2,000 after
 finding that a manager’s comments about the claimant’s sexuality, including a greeting of “hello darling” with a limp wrist gesture, were discriminatory. 
  In employment tribunal decision Callahan v Benchmark Cleaning Services Ltd, a manager’s detrimental comments about the claimant’s sexuality – including a greeting of “hello darling” with a limp wrist gesture – were found to constitute direct discrimination, but not harassment.

My Comment:       What was this manager thinking?    In this day and age he really should know better,            don't tell me......was he in charge of a call centre by any chance ?

Monday, 14 April 2014

BUS DRIVER FAIRLY DISMISSED FOR RUDE GESTURE!

A Dundee bus driver who made rude gestures at a BUS RUDE GESTURES STORYfemale motorist was fairly sacked.

An employment tribunal has ruled that the dismissal of Ross McMahon was within the range of reasonable responses by National Express Dundee.      He followed and flashed his lights at the female driver who had blocked him at his bus stop because another driver had blocked her route.
When he got her attention he made rude signs with his hands. The woman lodged a complaint with the company about the incident, which happened on April 10 last year.                                       CCTV footage was examined and it covered a sequence of events, which culminated with Mr McMahon’s bus pulling up behind the Volkswagen car.
Mr McMahon was seen to flash his lights at the driver several times. He then leaned forward, extended his right hand and make a rude gesture, and followed this by bringing his hand towards his head and repeating the gesture several times. Mr McMahon apologised unreservedly and stated that the car driver had “cut him up” and had made a rude gesture at him at about the same time as he flashed his lights.
He was dismissed and the decision was upheld at an appeal.
The company’s solicitor said the driver’s behaviour was not just inappropriate but disgusting and at the extreme end of the scale. The woman had been so upset she went to the firm’s travel shop to complain.                         Tribunal judge Ian McFatridge said the panel may have been persuaded by McMcMahon’s length of service and contrite apology to exercise leniency, but they were not allowed to substitute their own view.
 My Comment
Readers will recall last months "bus" story about a driver being unfairly dismissed,  well,  here is one where behavior, although inappropriate, did not put lives at risk, was fairly  dismissedI don't condone the drivers conduct, BUT, after 20 years service,.....   talk about disproportionate!

Tuesday, 1 April 2014

Small Business employment law news

My periodic newsletter on all things employment law related that I think you should be aware of.
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Dear Readers ,
 
Here we are  Spring 2014,  already!     it doesn't seem 5 minutes since we had a few days well earned rest at Christmas  and here we are with the clocks forward!                   In employment legislation the first of April traditionally is the starting point for various updates and new interpretations on existing laws, see below for this years' tweaks.

Kind regards,     Paul 


First, the news:

From April 1st 2014 new statutory rates will apply to most existing employment payments, Mat Pay, SSP, SGP  etc, see below for more details...
Newsflash:
 

Potential financial penalties for employers at employment tribunal.
For cases presented to an employment tribunal on or after 6 April 2014, tribunals will have the power to order that an employer who is unsuccessful at tribunal pay a financial penalty. 

My Comment
   After a couple of years of quite good news and helpful reform for employers, this is a retrograde step.  Previously, at tribunal, there were no punitive awards, successful applicants received compensation that was " just and equitable"  in all the circumstances.  (that wasn't always the case, but that's another rant !).  The awards were considered to be sufficient encouragement for the employer to try harder next time.    By imposing what amounts to a fine on employers,  on top of any awards,this  is simply going to be a/ An incentive to employees to "have a go"   and b/  Breed more resentment of employees rights and make employers think carefully about taking on staff.  
   See the details  read more
Dundee bus driver fairly sacked for rude gesture...

An employment tribunal has ruled that the dismissal of Ross McMahon was within the range of reasonable responses by National Express Dundee.      He followed and flashed his lights at the female driver who had blocked him at his bus stop because another driver had blocked her route.    read more

My Comment
Readers will recall last months "bus" story about a driver being unfairly dismissed,  well,  here is one where behavior, although inappropriate, did not put lives at risk, was fairly  dismissedI don't condone the drivers conduct, BUT, after 20 years service,.....   talk about disproportionate!
New National Minimum Wage Rates Announced for October 2014.

This is the first time the rate has increased more than the rate of inflation in six years.

In October 2014 the NMW will increase to £6.50.
other rates will also increase:
18-20 year olds   will increase to £5:13
16-17 year olds   will increase to £3:79
The apprentice rate will go to      £2.73

To read more details and some of Business Secretary Vince Cable's comments      read more
 
 

And finally tonight !
New statutory rate increases coming in on 6th April 2014

Awards at Tribunal to be Increased
Maximum amount for calculating a weeks pay for the purposes of calculating redundancy and unfair dismissal awards goes up to £464.00 week

Statutory Guarantee Pay (during lay-off)
Increases to £25.00

Statutory sick pay will increase to £87.55 per week (up from £86.70).

Maximum compensatory award for unfair dismissal
To rise to £76,574.00

Statutory maternity pay, statutory adoption pay, statutory paternity pay, and additional statutory paternity pay will increase to £138.18 per week (up from £136.78).

Abolition of PTS (percentage threshold scheme for reclaiming SSP)

more details
 
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Health & Safety Myths

A light hearted look at some of the idiotic things we hear.
CASE No. 261 can you stock plasters in the first aid box?........
            An employee was told that due to health & safety, ie allergies, we can no longer keep plasters in the first aid tin...............
read HSE reply....
.
CASE No. 227   Gluten free hot chocolate cannot be served due to health & safety regulations..
                   A visitor to the cafe bar enquired if the hot chocolate was gluten free, they were told that health & safety regs. prevented them from accomodating special dietary needs!     read the details

CASE 259    Gate not allowed at the bottom of a disability ramp.......
                     The disabled tenant had asked the council to install a gate on her ramp to stop youths from using it for skateboard practice, the council informed the tenant they were  unable to do this for Health & safety reason..........read more..