Archived News

Tribunal Claims

October 2011

Not all the crowd-pleasing statements from party conference platforms have a life beyond the next day’s newspapers.   However the Chancellor of the Exchequer's announcement about increasing the period of qualifying employment to lodge a claim of unfair dismissal and fees for employees to lodge Employment Tribunal claims has survived and is the Coalition Government’s programme. It has been interesting to note the caution this has met from the Chartered Institute of Personnel & Development (CIPD) and also some similar sentiments from specialist employment law firms.  Elsewhere some representatives of business have been more welcoming.

The proposals feature an increase in the qualifying period of employment from 1 to 2 years to present a claim of unfair dismissal to Employment Tribunals and fees for employees to present Tribunal claims.  Fees are expected to be between £150 and £250 for lodging a claim and a further £1,000 for proceeding to a hearing and they may be larger where the potential remedy or compensation is above £30K.  The fees would be refunded if the claim succeeds.  There will be consultative period starting at the end of November and Lyme Bay Consulting hopes that you will participate.

SOSR

"Some other substantial reason" (SOSR) for a dismissal is difficult to define.  "Other" means that it is not a dismissal for one of the other potentially fair reasons, e.g. capability, conduct, or redundancy.  "Substantial" means what it says.  It may be the actual reason when an employer had thought that it was redundancy.  Other examples include a third party demanding the removal of an employee when the employee works exclusively or for a large proportion of their time for this customer or client; and when an employee has been dismissed after failing to negotiate and agree new terms and conditions and then declined to be re-employed on a new contract.  Lyme Bay Consulting suggests that employers proposing to dismiss an employee in these or similar circumstances should seek advice at an early stage.

References

September 2011

Fearful of being sued for providing inaccurate information employers are sometimes reluctant to put more than simple facts in references - such as dates of employment, position held, etc.   This does not assist the new employer to make informed recruitment decisions. If you were on the receiving end, would not be pleased with this sort of unhelpful response? So what can be done about this dilemma?

Prudent employers should have policies in place covering:
(a) who may draft references
(b) the terms of reference for referees, outlining what shall be
included and on what that may be based
(c) who in senior management will check and authorise references before they are sent

After sending references, you may receive follow up emails or telephone calls asking for more information or clarification. As in preparing the written references, you should take care, ensuring that what you say can be supported.

When providing written or verbal references, you could state what the information is based on (i.e. what is in the terms of reference such as supervision notes, annual appraisal records, attendance & disciplinary records).  If the subject of the reference is no longer in your employment, new employers inevitably wish to know why they left.  Base what you say on the termination correspondence keeping to the facts.  Even so, you may not be able to give the information if the former employee left under a compromise agreement containing a confidentiality clause.  It is therefore prudent for compromise agreements to cover provision of references.

Extra Bank Holiday In 2012

June 2011

The President of the Privy Council has announced that there will be an extra Public Holiday on 5th June to mark the Queen’s 60th Jubilee.  The late Spring Bank holiday is to be moved to the 4th June.  As in 2011 with extra Public Holiday for the wedding of Prince William, employers may be wondering whether they have to give employees the day off and if so, whether the day should be paid. 

There is no legislation imposing an obligation to give the day off or that it should be paid.  No doubt most employers will want to award the day off in order to mark this special occasion.  Whether they are obliged to pay for the extra day’s holiday will be determined by the terms of the employment contract. 

Contact Lyme Bay Consulting if you would like advice on this.   

Default Retirement Age

26th April 2011

Following the  legislative removal of the Default Retirement Age (DRA) on 6th April, one of the first questions employers should be asking is whether they have business aims sufficient to objectively justify retaining a retirement age and that this is a proportionate way  of achieving those aims.

There is no Case Law to guide answers to this question and employers may be confused by the range of advice from a number of sources; e.g.

  • The Chartered Institute of Personnel & Development is highlighting old Case Law that could indicate how appellate tribunals and courts may approach justification of retirement ages.  This includes Leslie Seldon v Clarkson, Wright and Jakes [2009] IRLR 267, EAT and (unreported, [2010] EWCA Civ 899, CA) about which CIPD says:
"The outcome of this case seems to make it harder for employers to justify retirement policies and procedures based on age, as employers have to be consistent with the policy aims behind the age discrimination legislation."

  • ACAS guidance that include this:
"The test of objective justification is not an easy one to pass and it will be necessary to provide evidence if challenged; assertions alone will not be enough. When looking to establish an EJRA it can be helpful to first set out the reason why you wish to do so clearly on paper. Then ask yourself whether you have good evidence to support this reason and then finally consider if there is an alternative, less or non-discriminatory way of achieving the same result. Throughout, you should always remember that you need to show ‘objective’ justification not ‘subjective’ justification."

  • Some law firms are advising that there may be ways of keeping the option of a compulsory retirement age open while Case Law develops.

Lyme Bay Consulting and it's consultants are not lawyers so we do not comment on the legal advice referred to in the final bullet.  We do say that employers should ensure that advice whether legal or consultancy, takes the specific circumstances of the employer into account.  The following are general comments and observations.

Case Law will take some time (perhaps years) to settle and to establish a clear line on justification.  We note the ACAS statement that the test of objective justification will not be an easy one to pass.  Also we note that the Government's intention in enacting the legislation was to remove the discrimination of fixed age compulsory retirement with limited exceptions.  Therefore for most areas and types of employment it will not be appropriate to hold on for Case Law with ageing employees uncertain about their future.  Whatever employers decide, they should take on board the spirit of the age discrimination legislation and reap the benefits of an 'all-age-workforce'.  This will involve: improving their personal development dialogue with employees, encouraging discussion about employee aspirations and retirement plans, and honing their management of employee performance, sickness and absence.

LEGISLATION MISCELLANY

3/3/11

A number of employment legislative measures and consultations are under way or imminent.

There is UK and European consultation on accrual of holiday in sickness absences.  Whatever the outcome, employers and consultants will welcome some clarity.  

In April a batch of things are happening:

  • Employers should have procedures to prevent bribery and corruption (Bribery Act 2010)
  • Positive action is possible in recruitment & promotion (Equality Act 2010)
  • Employees will have rights to request time for training in businesses employing less than 250 people (it is expected that there will be a bottom limit of 50 employees)
  • Under transition arrangements, retirement notifications given before 5th April under the old procedures will be valid if retirement takes place before 1st October

A consultation is under way on the Coalitions proposals for resolving disputes in the workplace; you will remember that towards the end of the last government’s term in office, it repealed legislation it had earlier introduced (the statutory discipline and grievance procedures). 

This consultation includes: mediation, early conciliation, tackling weaker Tribunal cases, encouraging settlements, formalising offers to settle, shortening Tribunal hearings, extending the jurisdictions where judges can sit alone without Lay Members, increasing qualification periods for unfair dismissal from 1 to 2 years, introducing financial penalties for employers who have breached employee rights, reviewing formulae for calculating Tribunal awards and statutory redundancy payment limits.

The consultation document is at:
http://www.bis.gov.uk/assets/biscore/employment-matters/docs/r/11-511-resolving-workplace-disputes-consultation.pdf
The consultation closes on 20th April 2011.  

AGE DISCRIMINATION
Retirement ages being phased out

January 2011

With effect from 1st October 2011, employers cannot compulsorily retire employees either at the default age of 65 or other contractual ages except if retirement can be objectively justified in particular circumstances.  Retirements notified prior to 6th April can proceed under current procedures provided retirement will be before 1st October 2011.

Some  employers already find that employing older people enhances their business.  However these are significant changes for other employers and there is little time to prepare for it.  Lyme Bay Consulting suggests taking a measured approach as it will not be a straightforward matter of removing retirement ages and deleting retirement notification procedures.  We are ready to assist clients reap the benefits and opportunities in a mixed age workplace as well as removing the potential for discrimination in current employment policies and procedures.  Such an Age Audit could include:

  • Assessing how workforce age profiles may change
  • Identifying the potential benefits and advantages of a mixed age workforce
  • Considering how older and more experienced workers can act as role models for inexperienced employees, can transfer skills and can act as mentors
  • Reviewing recruitment procedures and criteria
  • Reviewing appraisal, capability, sickness, and absence procedures
  • Reviewing induction, personal development and training provisions
  • Considering how part-time and flexible working can help older workers continue in employment; NB this may discriminatory unless it can be objectively justified or unless part-time and flexible working are available to all employees.

HEALTH CHECKS IN RECRUITMENT

September 2010

Some provisions in Equality Act 2010 are due to take effect on 1st October, however it is still unclear which ones it will be.  This may be a problem for employers planning to recruit in the coming months because one of the provisions will be to ban health enquiries in selection procedures. Most HR professionals and lawyers are assuming that this will be implemented and Lyme Bay Consulting is also making that assumption.   

This means that prior to making a job offers, employers should not ask health questions on application forms or at interviews, and should not require medical examinations.  Although this will apply to selection for most posts there are a few exceptions:

  • Guaranteed interview schemes (positive action) to increase the proportion of people with a protected characteristic in workplaces, e.g. race, disability, gender;
  • Determining an applicant's ability to carry out an intrinsic or fundamental job function  e.g. eyesight, hearing for drivers, pilots, etc., mobility for steeplejacks;
  • If a disabled person's perspective is necessary e.g. deaf/blindness in an organisation advising deaf/blind people. 

            NOTE: Lyme Bay Consulting recommends that applicants should be told why these questions are being asked and to limit questions to current health.

Employers may ask if job applicants require any reasonable adjustments to the selection/ interview process to enable fair competition and to give of their best; applicants should be assured that this will not be considered in deciding who to employ.

After jobs have been offered, employers may then make relevant health enquiries to ensure that a successful applicant's health or disability would not prevent them from doing the job.  If a disability is revealed, reasonable job adjustments should be considered.  Health checks may also be required for employee liability insurance.  Occupational health advisers may be able to give some specific guidance on 'post job-offer checks'.  Offers of employment can be conditional on the outcome of health enquiries.

These Government and ACAS web sites may be of interest: 
http://www.equalities.gov.uk/equality_act_2010/..
http://www.odi.gov.uk/working/equality-bill.php
http://www.acas.org.uk/index.aspx?articleid=3017

RETIREMENT AGE

29/7/10

On 29 July the Coalition Government announced a consultation on phasing out the Default Retirement Age (DRA) of 65.  There has been a flurry of support from various bodies.  Also there has been some cautionary comment about possible implications for capability management.

No doubt employers will welcome the demise of retirement notification and employee request to continue working procedures.  However the absence of a DRA and in most cases employers' "normal retirement age" will have implications for  performance and absence management, capability procedures and perhaps health and safety policies.

The consultation document can be viewed at: www.bis.gov.uk/retirement-age where there is also information on how to make your views known before the closing date, 21st October, 2010.   This date is a year before the Government propose to abolish the DRA and just 6 months before a transition period.  Lyme Bay Consulting will continue to monitor developments and is ready to assist and advise clients.

EMERGENCY BUDGET

July 2010

George Osborne announced in the full Budget document that he is requiring relevant Government Departments to conduct an immediate review of employment legislation.  The stated aim is to ensure maximum flexibility but also to protect fairness and promote competitiveness.  This will be under the Coalition’s “1 in – 1 out” approach to new legislation plus “sun-set” clauses.  A “Reducing Regulation Committee” is being chaired by the Business Secretary, Vince Cable. 

All legislation in the pipeline will be reviewed.  However it is unclear whether this includes the Equality Act 2010 passed in the final stages of the last Government.  Implementation had been due to commence in October but there has been no statement yet from the Coalition Government on whether this is to change.  Lyme Bay Consulting observes that references to October implementation have mysteriously disappeared from the web site of the Government Equalities Office.  We may know more as further details of the business deregulation are announced.

The Budget confirmed that there will be consultation on removing the default retirement age of 65.

EQUALITY ACT 2010

June 2010

The Economy has been the predominant headline after the formation of the Coalition Government.  So it is perhaps understandable that there has been no news on the Equality Act 2010 that received Royal Assent just before the General Election. 

The expected removal of many controversial clauses did not take place in the final parliamentary stage of the Equality Bill.  However the Conservative Party stated that if it came into power it would not bring into force the Act’s provisions on positive action, the public sector socio-economic duty and provisions on equal pay. 

So far the coalition government has not stated whether it will proceed with the Conservative intention.  With the first provisions of the new Act due to come into force in October this year Lyme bay Consulting is keenly watching for developments so that we can brief clients. Meanwhile all we have to go on is a rather ‘broad brush’ statement in the Coalition Agreement:
We will review employment and workplace laws, for employers and employees, to ensure they maximise flexibility for both parties while protecting fairness and providing the competitive environment required for enterprise to thrive.

EQUALITY ACT 2010

MAY 2010

Just before the dissolution of Parliament for the General Election the Equality Bill received Royal assent. The Act harmonises existing discrimination law and strengthens existing provisions.  A single approach for most of the heads of discrimination should promote improved equality in workplaces and better understanding by employers and employees.  Most existing legislation will be repealed.

The Act strengthens the law in a number of areas:

  • Extends protection against discrimination, harassment or victimisation because of protected characteristics e.g. gender reassignment
  • Extends protection against discrimination by allowing claims of direct discrimination because of a combination of two protected characteristics
  • Organisations to consider how their policies, programmes and service delivery will affect people with the protected characteristics
  • Allows positive action to enable people to overcome or minimise a disadvantage because of a protected characteristic
  • Enables Employment Tribunals to make recommendations to employers who have lost discrimination claims to take steps to remedy matters for the benefit of the wider workforces

The Act will take effect in stages:

  • October 2010: Main provisions.
  • April 2011: The integrated public sector Equality Duty, the Socio-economic Duty and dual discrimination protection.
  • 2012: The ban on age discrimination in provision of goods, facilities, services and public functions.
  • 2013: Private and voluntary sector gender pay transparency regulations (if required) and political parties publishing diversity data.

The fall back retirement age of 65 for employees and the ability of employers to have a contractual normal retirement age has not been changed by the Act, however it will be reviewed during 2010.

Lawyers and HR professionals are busy studying the implications.  With the main provisions taking effect in October, employers do not need to take any immediate action. Lyme Bay Consulting will be providing further information and advice in due course.

Fit Notes

April 2010

From 6th April “Statements of Fitness to Work” will replace doctors’ sick notes (MED 3 & MED 5) that were limited to certifying whether an employee was fit or not fit for work.

The new notes (already being termed “Fit Notes”) concentrate on what an employee may be able to do.  They introduce an option for the GP to say that an employee “may be fit for work taking account of the following advice . . .”    This advice may indicate the impact of the employee’s condition on physical and mental functions and work functions plus ways for an employer to help an employee return to work, such as:

  • a phased return to work
  • flexible working
  • amended duties
  • workplace adaptations.

Getting back to work early can assist full recovery.  It also promotes general wellbeing by indicating to employees that they are valued and wanted. 

GPs should be aware of the nature and type of employees’ work so that they give appropriate guidance to employers in “Fit Notes”.  With this in mind you should ensure that Job Descriptions are up to date and encourage employees to use them as a basis for what they tell GPs about their job.

Employers will now have more information to management absence and sickness.  Therefore it may be opportune to review your sickness procedures; Lyme Bay Consulting can help you with this.

More information is available from www.dwp.gov.uk/fitnote and www.acas.org.uk/index.aspx?articleid=2832

 

Equality Bill

MARCH 2010

The Equality Bill started its progress through Parliament with wide support of the aim of consolidating and simplifying many separate pieces of discrimination law. 

Recently, the Press and Media concentrated on the Pope, Anglican Bishops and other churches and religious organisations criticising the Government’s proposals on religious discrimination.  This concerned the part of the Bill that it was claimed interfered with churches ability to restrict employment in some posts to people whose lifestyles and/or beliefs are compatible with the doctrines and ethos of the church.  However there are other contentious parts of the Bill such as positive action on discrimination, regulating pre-employment questionnaires, and enabling a discrimination claim to be on more than one ground.

It is already clear from the House of Lords stage of the Bill that it may not be enacted without significant amendments; we expect of our parliamentarians to sort out potential anomalies and problems in legislation.  However this may delay progress and depending on the date of the election (not known at the time of writing) the Bill may pass into limbo.  Whether the Bill survives after the election may depend on a new Government’s priorities.  

As the overall aim of consolidation and simplification was so widely supported it will be a great shame if this Bill is lost for whatever reason.  Lyme Bay Consulting will be monitoring and reporting on any developments.

Review Of Statutory Limits & Payments

From 1st February 2010:
Unfair Dismissal – maximum compensation award has fallen from £66,200 to £65,300.

From April, 2010
Statutory Maternity, Paternity and Adoption pay increased from £123.06 to £124.08 per week. 

Exceptionally in October 2009 the Government increased the maximum week’s pay for calculating the Basic Award for Unfair Dismissal and for Statutory Redundancy Pay to £380.  Therefore there will be no increase from February this year and the next review will be in February 2011.

Age of Retirement

February 2010

Informed and uninformed commentators seem to at one in expecting employees to need or to be obliged to work beyond the current age for the State Retirement Pension; the reasons being increasing life expectancy and increasing cost of pension provision. In the background is the age discrimination legislation and there could be amendments to this, probably irrespective of what party is in Government after a General Election in 2010.

Clients of Lyme Bay Consulting probably have formalised terms and conditions that specify a “normal retirement age” – usually 65. This is also the default retirement age in the age discrimination legislation (for employers who do not specify a normal age of retirement). The default age has been subject to legal challenges that have alleged that it does not satisfy the European Directive on age discrimination. All have failed including the most recent in September 2009 at the High Court. Nevertheless the Judge’s decision signalled a possible demise of the default age in the longer term “I cannot presently see how 65 could remain as a default retirement age after the [Government’s] review”. This Review was scheduled for 2011 and has been brought forward to 2010.

Although Lyme Bay Consulting will await developments, it is timely to remind you to:

  • Not to stop personal development planning as employees approach retirement
  • Facilitate & commend handover of skills and knowledge from employees about to retire
  • Consider flexible working applications as employees approach retirement
  • Follow the statutory requirements for retirement notification
  • Support employees preparing for retirement
  • Apply consistent performance and absence requirements & procedures across the whole workforce, regardless of age