Employees who are unpaid carers for a person with long term care needs will be entitled to up to five days of unpaid leave a year Unpaid carer’s leave – GOV.UK (www.gov.uk).

The law is designed to protect and assist employees with care responsibilities. The new right is effective from the first day of employment, so there is no minimum period an employee has to be in their job for to be get this entitlement.

There is also flexibility depending on the need – for example, an employee can use a half day, full days or if needed use them all at once.

Notice to the employer does however have to be given. Furthermore, the notice needs to be for twice as much time as the leave required – or at the employers’ discretion for shorter notice. Employers can postpone leave when certain conditions are considered.

I am sure there are many employees who have the worry of juggling jobs and the responsibility of caring for someone. The new legislation acknowledges that there is a need to help those employees. Importantly if an employee needs that leave, the legislation is designed to give them protection from being dismissed or suffering detriment simply because they have exercised that right.

If an employee previously felt vulnerable asking for time to help someone for whom they had caring responsibilities, the introduction of this legislation hopefully gives them new comfort affording them new statutory rights and protection.

For further advice on the above, or any other Employment Law related matters, please contact our experienced team. We offer legal advice to both Employees and Employers.

Article written by Employment Solicitor, Kerry Hudson.

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If you have been continuously employed for two years or more, you will have unfair dismissal rights. (Depending upon the nature of your illness, you may also be deemed to be disabled under The Equality Act 2010 and have rights under that Act.)

The recent Court of Appeal case of O’Brien v Bolton St Catherine’s Academy made some important points about when a dismissal for long-term sickness will be fair.

In this case, Ms O’Brien was the head of a department in a school. She was attacked by a pupil but did not suffer serious injuries and returned to work; however, she felt unsafe and had over a year off work for stress.

The employer enquired as to when Ms O’Brien may be returning to work and whether any adaptations were required. This information was not forthcoming and Ms O’Brien simply referred the employer back to her GP who did not feel able to confirm a return date.

The employer held a formal medical incapacity hearing under its internal procedures and dismissed Ms O’Brien. At that hearing, there was nothing to suggest that she would be returning in the near future. Ms O’Brien appealed the decision to dismiss her and there was then an internal appeal hearing which upheld her dismissal.

The principle matter for the Court of Appeal in respect of Ms O’Brien’s unfair dismissal claim was the consideration by the appeal panel of new medical evidence. At the appeal hearing, Ms O’Brien had produced a GP fit note and a letter from a psychologist that recommended courses of treatment. The appeal panel had concluded that the sudden production of this note was suspicious and was concerned about the inconsistent nature of the evidence.

The Court of Appeal held that the dismissal was unfair and provided valuable guidance about the fairness of dismissals in long-term sickness cases, as follows:

• If an employer decides to dismiss an employee following an absence of over 12 months, with no certainty about a return date, it will not necessarily be unfair. There will come a point where the employer is entitled to some finality but when that point comes will vary.

• The severity of the impact of the employee’s absence on the employer’s business is important. An Employment Tribunal will expect to see some evidence of disruption to the business although in some cases, the impact will be so severe that a general statement from the employer will be sufficient.

• If an employee is able to produce updated medical evidence, the decision to dismiss must be fair taking into account all the information that is available, even if this is only produced at the time of the appeal hearing.

In O’Brien the Court of Appeal held that the employer should have sought additional medical evidence before making a decision about the appeal; the dismissal was therefore unfair.

If you are on long-term sickness absence and you wish to discuss your situation, please contact our Employment Solicitor, Kerry Hudson on 024 7653 1532 or email at Kerry.Hudson@bttj.com

The above is not intended to provide advice.

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If you are being made redundant, you are entitled to notice of termination of employment but what other rights do you have?

If you have two years’ continuous employment

If you have two years’ continuous service or more with your employer, you will be entitled to a statutory redundancy payment and also have unfair dismissal rights. In this instance, your employer needs to show that there is a genuine redundancy situation (ie it is not a ruse to “move you on”) and it has followed a correct consultation/dismissal procedure. If this is not the case, you are likely to have an unfair dismissal claim.

If the redundancy situation is caused by a reduced need for employees to do work of a particular kind, there can often be issues of fairness about who gets to keep their job and who is made redundant.

A redundancy dismissal is likely to be an unfair dismissal unless the employer has:

• identified an appropriate pool of employees from which redundancies will be made
• consulted with individuals in the pool, including on matters such as selection criteria for redundancies
• applied objective selection criteria to those in the pool
• consulted with the employees selected on an individual basis before a decision is made to terminate employment on the grounds of redundancy. The consultation will include considering alternative employment (subject to a trial period). This will usually involve a few meetings with the selected employees.

If you have less than two years continuous employment

If you are being made redundant and have less than two years’ service, you will not usually be eligible to bring a claim for unfair dismissal on the grounds of redundancy or be entitled to a redundancy payment.

However, in certain instances, you don’t need two years’ continuous employment to be eligible to bring a claim for unfair dismissal. This would be the case if you are made redundant due to one of the automatically unfair reasons e.g. you had asserted a statutory right, such as the right to a statutory rest period.

Collective consultation

Where there are 20 or more employees being made redundant at one establishment over a period of 90 days or less, there are specific duties about information and consultation, including minimum consultation periods. If an employer fails to carry out the required information and consultation, an award of compensation, known as a Protective Award can be made to you by an Employment Tribunal.

Discrimination

In some instances, the selection for redundancy is motivated by a discriminatory reason (e.g. sex, race, disability, age, sexual orientation, religion or belief, gender reassignment, marriage or civil partnership, pregnancy or maternity). You can bring a claim for discrimination without any period of continuous employment.

Settlement Agreements

Some employers will offer Settlement Agreements before or during a redundancy process. A Settlement Agreement is an agreement between an employer and an employee in which the employee agrees not to pursue any employment claims in return for a financial package.

If you are offered a Settlement Agreement in a redundancy situation, your employer will usually pay you the monies which you would have received anyway eg redundancy payment and notice. In addition, your employer may also pay “a sweetener” in order for you to give up your claims. The “sweetener” may be additional monies or even the offer that notice is not worked and is paid without deduction of tax and N.I.

In addition to written terms about the settlement of claims and monies payable, the Settlement Agreement may also include other terms eg about the confidentiality of the Agreement.

Quite often, a reference would be included within the terms of the Settlement Agreement which your employer would agree to provide if a reference request is made by a future employer.

You would be required to take independent legal advice about the terms of the Settlement Agreement and it is usual for your employer to pay a contribution towards those legal costs.

If you are offered a Settlement Agreement, we will check whether you are being offered a good deal, taking into account your contractual entitlements and your potential claims. We can help you achieve an improved financial package in certain circumstances.

Once a valid Settlement Agreement has been signed, you will not be able to sue your employer for any claims referred to as settled in the Settlement Agreement.

If you would like to discuss a redundancy situation or you have been offered a Settlement Agreement, please contact our Employment Solicitor, Kerry Hudson on 024 7653 1532 or email Kerry.Hudson@bttj.com.

The above is not intended to provide advice

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What might appear to be an employee having a bit of fun or a risqué joke, after a drink or four, could, in fact, give rise to a claim against the employer for sexual harassment or other forms of discrimination. This is because employees’ discriminatory acts are treated as having been carried out by the employer if they are done “in the course of employment”.

Behaviour at an office party is likely to be considered be carried out in the course of employment, whether the party takes place in the office or down the pub.

Protection from discrimination is wide ranging and any unfavourable comments or acts connected to the following can be discriminatory: sex, race, age, disability, sexual orientation, religion or belief, pregnancy and maternity, marriage or civil partnership and gender re-assignment.

Employers should be able to successfully defend such actions if staff have acted contrary to the employer’s instructions not to discriminate. A good way for employers to protect themselves is to have an Equal Opportunities policy and to ensure that all staff have been trained on it.

Where an employer has not already taken these steps, or even if it has done so, it should consider reminding staff what constitutes unacceptable behaviour and what the consequences could be if they indulge in it.

If the worse happens and allegations of discrimination are made, they should be fully investigated by employers and disciplinary action should be taken against the accused, if appropriate.

Merry Christmas everyone!

Brindley Twist Tafft & James LPP

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• Morrisons liable for an assault by an employee
• Holiday pay and commission
• Monitoring personal emails at work
• The National living Wage
• Transgender Staff: Government guide

Morrisons liable for an assault by an employee

The Supreme Court has ruled that the supermarket, Morrisons was liable for a physical assault by one of its employees.

Mr Mohamud stopped at a petrol station and enquired about printing some documents from a USB stick. Mr Kahn was working behind the counter at Morrisons and ordered him off the premises with a torrent of threatening and racist abuse. When Mr Mohamud returned to his car, Mr Kahn opened the car door and punched him on the head and continued to assault him.

As a matter of general law, an employer can be liable for the acts of its employees, provided it can be shown that the acts took place in the course of their employment. In this case, the violence was a re-enforcement of Mr Kahn’s order to leave and this was connected to his job. This was sufficient to make Morrisons liable for Mr Kahn’s acts.

Holiday pay and commission

In the case of Lock v British Gas, Mr Lock was employed as an energy trader and commission represented about 60% of his pay. When he was on holiday, he was paid his basic pay and commission based on his earlier sales; however, his commission payments were lower in the months which followed his holiday as he had been unable to generate sales whilst on holiday.

The issue here was whether the Working Time Regulations 1998 could be interpreted in line with EU law on the matter of calculating holiday pay. The Employment Appeal Tribunal upheld an earlier Tribunal decision that Mr Lock was entitled to commission as part of his holiday pay.

This is not surprising as it has been clear for some time that EU law requires that four weeks of annual holiday entitlement must be paid at a rate which reflects a worker’s normal remuneration. Despite this, it is understood that British Gas is seeking permission to appeal the recent ruling.

Pending a definitive ruling on the issues, uncertainty remains about how to deal with claims for underpaid holiday and how to calculate holiday pay going forward.

Monitoring of Personal Messages at Work

In the case of Barbulescu v Romania, the European Court of Human Rights decided on the right to privacy under the European Convention on Human Rights.

The employee, Mr Barbulescu, was dismissed for personal internet use at work which was in breach of the employer’s rules. As part of its investigation, the employer accessed intimate messages sent by the employee to his fiancée and his brother. The messages were used in disciplinary proceedings against the employee.

The European Court of Human Rights held that the monitoring of his internet usage and the use of the Yahoo Messages in disciplinary proceedings did interfere with his right to privacy but, in this instance, the employer’s actions were reasonable. This was because it was reasonable for the employer to check that Mr Barbulescu was completing work tasks during work time. The decision relied on the fact that Mr Barbulescu had told his employer that the account contained only client-related communications.

The case received a great deal of media attention and some of it gave the misleading impression that the decision gives employers the unfettered right to check on employee’s personal emails. However, the decision does not overrule previous caselaw from the European Court of Human Rights on employees’ reasonable expectation of privacy and the need for any interference in that privacy to be reasonable.

National Living Wage

Employers should be preparing for the introduction of the National Living Wage which comes into effect from 1^st April 2016. The new National Living Wage of £7.20 per hour will be introduced for workers aged 25 and above. The pre-existing National Minimum Wage will continue to apply to workers aged 24 and under.

New Government Guide: Transgender Staff

The profile of Transgender issues has been raised over recent times, with the release of the film “The Danish Girl”.

It is therefore timely that the Government Equalities Office has recently published a new guide for employers on recruitment and retention of transgender staff.

It is designed to provide employers with practical advice, suggestions and ideas on the recruitment and retention of transgender employees and potential employees. It is also intended as a guide for the managers and transgender staff themselves.

If you have any employment law queries, please contact Kerry Hudson on Kerry.Hudson@bttj.com or 02476 531532.

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For many employers getting to grips with what a fit note actually does is far from easy, and on face value they may think that such documents are in fact a joke; whilst some such notes simply say that the employee is unable to work, and are straight forward and easy to understand, others appear to dictate details of what an employee can and cannot do whilst he or she is at work, or the patterns which they may work.

Under the old scheme, the “Sick note” simply meant that an employee could not return to work, but the newer “fit note” appears to bind employers and appears confusing and unclear.

In order to try to clarify the relevance and use of “Fit Notes”, we aim to put some minds at ease and to dispel some myths. In doing so, the DWP’s 2013 guidelines are very useful and user friendly, and a recommended read to any Employer or manager who is unsure of how to deal with a fit note.

First, a “Fit Note” arises from Medical Practitioner Guidelines, they are not statutory, and they are not binding on the Employer. Therefore simply because the GP or medical practitioner says that Joe Bloggs should return on reduced hours does not mean that the Employer must comply with this. Equally, just because the GP does not provide an option does not mean that it is unviable.

Second, the start point in considering a Fit Note is that the employee is unable to attend work as they are not fit to do so. However, they may be able to attend work where certain adjustments can be made. If those adjustments cannot be made then they operate like the old “sick note” and the employee should remain away from the work place. In this circumstance the employee is not being suspended by the Employer on medical grounds, and therefore full pay is only required where there is a contractual provision, otherwise only SSP will be paid.

Third, the existence of a Fit Note does not mean that an employee cannot come back to work before it has expired, or that a new note is needed. An employee can return prior to its expiry. However, caution must be exercised in such circumstances; risk assessments should be undertaken and full consideration given to the matter. Failure to do so could leave the employee exposed to further injury and the workforce and the Employer’s business exposed to unnecessary risks, and the employer exposed to claims by the employee and investigations in to health and safety practices etc.

However, an employer cannot compel the employee to return before the expiry of the Fit Note, unless they can show that they have a genuine and reasonable belief that employee is not unwell. Whilst Fit notes can and should normally be used as evidence that the employee is unwell and unable to attend work, they can be challenged, and as stated above are not binding on the Employer, nevertheless it should be the exception and not the rule that such are challenged.

The Fit Note is therefore a starting point. It is designed to encourage communication between employer and employee and to facilitate a return to work at the earliest stage, where agreement can be reached between the parties. It is not big brother dictating to industry what it should do next or how it conducts its business, nor is it forcing an Employer’s hand into taking employees back early and risk infecting the rest of the workforce. Equally, the medical practitioner should be acting in the best interest of their patient, i.e. the employee, and therefore if there are concerns as to their ability to work then they will simply tick the box that says the employee is not fit to work, and the note works exactly the same as the old sick note.

Managing absence can often be a difficult and daunting task. However, if you have any questions please do contact me and I’d be happy to help.

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As the population in the UK continues to grow quickly and against a background of advances in technology, medical treatment and our lifestyles generally, we are all living longer. The effect is a growing aging population reliant in its retirement largely on an already overstretched state welfare system teetering on the brink of failure.

This issue has been exacerbated in the past generation by the rapid decline in private “final salary pensions” and the failure of some other pension schemes. This has lead to the imposition of minimum requirements and financial controls over how they are run. However the government have yet more radical change set in the foreseeable future with a view to paving the way into retirement for the next generation.

Retirement Age

In addition the maximum age for claiming unfair dismissal being removed some years ago we have also recently seen the abolition in the National Retirement Age in October 2010. It follows that it is now considerably harder to retire someone based on Age alone; in the event that an employer wishes to do so it must now show that any imposed Retirement Age is a proportionate means of obtaining a legitimate aim. Failure to do so will lead to a claim for age discrimination and even unfair dismissal.

Presently state pension age (not retirement) is 65 for men and between 60 and 65 for women (depending on their date of birth). However, by 2018 the retirement age will be 65 for everyone, rising to 66 by 2020 and eventually to 67 by April 2028.

The Present System

Whilst many employers still appear oblivious to their responsibilities, there are in fact employer obligations in respect of pensions and have been for in excess of 10 years.

Under the current system there is a minimum requirement for an employer with 5 employees or more (including shareholder/directors), at very the least in the absence of Occupational Pension Scheme, to provide access to a Stakeholder Pension Scheme.

At present there is no liability for the Employer to pay into that scheme. They act as a “money purchase scheme” and not as a final salary indexed one.

Other rules include:

• A stakeholder pension scheme cannot charge more than 1% a year of the value of the member’s fund for administration and investment expenses.
• Members must be able to transfer into or out of a stakeholder pension, or stop paying for a time, without facing any extra charge.
• All Stakeholder Pension Schemes must accept contributions of £20 or more a year, although some may accept lower payments.
• They must be run in the interest of their members. They can be run either under a trust or under contract-based arrangements by a scheme administrator.

It is therefore possible that an employer may find itself in a position whereby it is required to set up and provide access to a stakeholder pension scheme to its employees, however, no employees actually volunteer to join it.

Changes with effect from October 2012

The proposed changes will come into force with effect from 1 October 2012. i.e. in little over 6 months time from the date of the publication of this article.

The first noticeable change is that all “jobholders” over the age of 22 and under national pensionable age MUST be automatically enrolled into the occupational pension scheme. In reality this will mean that the additional opt in process will be scrapped.

A “jobholder” is defined as any person who meets the following three conditions:

• Works (or ordinarily works) in Great Britain under a contract, and including temporary workers and also executive directors employed under a service contract.
• Is aged at least 16 and under 75.
• Is paid “qualifying earnings” by an employer. Earnings include bonuses, overtime and statutory maternity, paternity or adoption pay. Under the DWP’s plans, the earnings “trigger” would be set at £8,105 and the band of earnings on which contributions must be calculated would extend from £5,564 to £39,853. We are presently awaiting full details as to how this will work.

The National Employment Savings Trust (NEST) is one form of pension scheme that is open to be utilised by Employers in order to comply with their obligations. NEST is a trust-based occupational defined contribution pension scheme run by the NEST Corporation, however, NEST is not compulsory and employers will be able to use their existing pension arrangements (or put in place new arrangements), provided they meet qualifying criteria.

Clearly increasing the access to “workers” is a significant step forward. This is also very much a natural progression from the recent agency workers legislation which provides that agency staff engaged in excess of 12 weeks must be provided with access to the same benefits as an employer’s directly employed staff.

Given the sheer size of the task at hand it is proposed that the automatic enrolment obligations will be brought in as a staged implementation based on the number of employees within an organisation. The target dates for such implementation will be specific to each employer however broad guidelines are set out below;

Number of employees Date compliance begins

250 or more 01 October 2012 to February 2014

50 to 249 01 April 2014 to 01 April 2015

Under 50 Employees 01 June 2015 to 01 April 2017

New Start Business 01 May 2017 to 01 February 2018

Between 1 April 2012 and 30 Sept 2017 01 October 2018

In order to check your specific compliance date you should review the charts published at www.tpr.gov.uk/staging

Contributions

The Second change to pensions is that it will become compulsory for employers to also contribute to the jobholders’ pension.

It is presently planned that employers will pay 3% of the employee’s annual salary into the fund and employees will eventually be required to contribute 5% of their annual salary. However, the level of contributions is due to come into force on a sliding scale over a 5 year period. That scale for the majority of jobholders (as a tier 2 candidate) is set out below:

Year Employer Contribution Total Minimum Contribution

Oct ’12 to Sept ’17 1% 1%

Oct ’17 to Sept ’18 2% 3%

Oct ’18 onwards 3% 8%

Opting In and/or Out of the Scheme

Jobholders automatically enrolled will have a statutory right to opt out of whichever scheme they have joined. Details such as the period within which the jobholder can opt out, and the calculation of and procedure for refunding contributions is yet to be published. An employer will be under a duty not to take any steps (or make any omission) by which the jobholder stops being an active member, or the scheme stops counting as a qualifying scheme, unless the jobholder is an active member of another qualifying scheme.

Non-eligible jobholders who are not automatically enrolled can give their employer notice requiring the employer to arrange for them to be enrolled into a scheme. But they can only do this once in a 12-month period. The employer will not be required to make any contributions in these circumstances.

Enforcement

Pensions will be regulated by The Pensions Regulator who will be given powers to issue compliance notices to employers who contravene this obligation and penalty notices to those that flout compliance notices. Penalties will vary according to the employer’s size although it is anticipated that large employers who do not comply could be liable for escalating penalties of £10,000 a day. In addition it is yet to be seen whether criminal penalties will apply in the case of “wilful” failure to comply.

It is not yet clear whether individual candidates will have redress for compensation for any failures by an employer before an employment tribunal. However, various employment protection rights on workers (but not “jobholders”) will be enforceable in this way; for example if they suffer any detriment in their employment because of their employer’s breaches of the regime. In addition, a new provision will be introduced into the Employment Rights Act 1996 (as section 104D) which will render unfair any dismissal arising from an employer’s breaches of the automatic enrolment requirements or the prohibited recruitment conduct. Employers cannot contract out of, limit or exclude any of the new duties imposed on them (except under a compromise in relation to proceedings in an employment tribunal).

Employers will not be able to ask job applicants at interview whether they plan to opt out of auto-enrolment and they will not be able to offer financial inducements (such as higher salaries or one-off bonuses) to their employees to opt out of membership of workplace pension schemes. An employer will face a compliance notice from the Regulator if it takes action for the “sole or main purpose” of inducing an employee or worker to opt out of such qualifying schemes.

Conclusions

For employers the new systems mean an increased administrative burden to ensure that all workers earning over the threshold are automatically enrolled into the pension scheme, together with in most cases an increased financial burden in respect of those individuals for whom it will have to now make contributions on their behalf; the effect has a greater impact by the very fact that the payments will be made in respect of workers as well as employees.

In order to ensure compliance with the new regulations the Pension’s regulator will be provided with greater range of powers and financial sanctions which can be imposed in addition to any compensation payable to an employee for the losses that he or she may suffer.

More details on the new systems and their implementation can be found at:http://www.thepensionsregulator.gov.uk/pensions-reform/detailed-guidance.aspx

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A transfer of undertakings occurs either where:

• a) a third party buys or acquires part of the a business, or
• b) there is a change in a provision of services and the business either:
• c) engages contractors to carry out the work, or part of the work, that it previously carried out
• d) changes contractors which it engages to carry out the work, or
• e) it brings work previously carried out by a contractor in-house.

A transfer of undertaking does not occur on a share purchase as the Company entity remains the same, even though the owners may change.

Where is the Law governing Transfers of Undertakings set out?

The Law governing the Transfer of Undertakings is governed by the Transfer of Undertakings (Protection of Employment) Regulations 2006, which is often referred to as TUPE.

Who does it affect?

It affects Employees only. It does not apply to Workers, including agency workers.

Those Employees must form an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client. For the avoidance of doubt a single employee can form an “organised grouping”. However, following the Seawell-v-Ceva case, an employee will only form part of that grouping if they are expressly said to have done so, it will not be enough to show that they simply have fallen into a pattern of work where its principal purpose has become working for a single client or carrying out a specific role.

What effect does it have?

Where there is a Transfer of Undertakings, the existing employees’ employment rights are protected.

Any employee that is caught in a transfer sees their employment transfers from their present employer to the new provider of that service. The new provider steps into the shoes of the old employer and takes on the employees on their existing terms of employment.

In the event that a new employer wishes to change any of the terms of the old contracts then they are void. Therefore the only way to vary terms of a contract is with consent.

Can any dismissals be made following a TUPE Transfer?

Any dismissal connected to the transfer, provided that the employee has the requisite qualifying continuous employment, will be automatically unfair.

A recent case, Manchester College v Hazel, has held that automatically unfair dismissals will include those where employees are dismissed following their refusal to vary their contracts of employment where a new employer seeks to harmonise the terms of employment with their existing employees.

However, if the reasons for the dismissal are Economic, Technical, or Organisational then there may be a defence open to the new employer. This would include redundancies etc, however, if such were contemplated then provision should be made for such in the consultations and the relevant information which is provided to the employees or their representatives?

Are There Any Exemptions To TUPE?

Yes. Regulation 8 provides that employees will not transfer with the business and/or its assets, or with the change of provider of the service where the employer is in liquidation. There was for some time some debate over which of the insolvency proceedings would attract this protection. However, please see the previous article entitled “TUPE 2006: Insolvency and Life After Oakland“.

What Else Can Employees Expect as a result of TUPE?

As a result of TUPE where there is a proposed transfer of undertakings the present employer must consult with the Employees about the transfer in order to provide certain details. The Consultations must happen as soon as reasonably practicable, and in any event enough time before the transfer to allow the consultation to be meaningful. The information to be provided is specifically set out in TUPE.

If the consultation does not happen then the employees may have a claim for up to 13 weeks pay by way of a “protective award”.

Whether you are an employee or an employer, if you have any questions or queries on TUPE and its implications for a position you find yourself in, please do not hesitate to contact us on 024 7653 1532 or by email on enquiries@bttj.com.

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