LEASE RENEWAL LITIGATION

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EMPLOYMENT LAW UPDATE JUNE 2006 JANE
KLAUBER THE CHARITY TEAM AT RUSSELL-COOKE
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EMPLOYMENT STATUS

• Short term contracts and casual status
• Self employment
• Agency workers
• Part-time workers
• Fixed term contracts
• Secondees

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STATUTORY PROCEDURES

• Resignation letters
• Solicitors letters
• Request for flexible working

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STATUTORY PROCEDURES

• Any written complaint constitutes a grievance
• Not necessary to set out every detail of the
  complaint
• Not necessary to comply with organisational
  procedure
• Employees intention irrelevant
• Any letter must make clear the complaint that is
  being made
• The complaint must be extant
• Beware extensions of time limits
• Employees should rarely be debarred

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DISMISSAL

• Some other substantial reason
• - Imposing restrictive covenants
• - Varying the contract
• - Flexibility clauses

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SETTLEMENT

• Risk of constructive unfair dismissal
• Without Prejudice
• Compromise agreements
• - must identify the particular proceedings
  being compromised
• - make clear compromising even claims the
  employee is not aware of
• - repayment clauses may constitute penalties

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DISABILITY DISCRIMINATION

• Mental illness must have a substantial long-term
  impact
• Learning difficulties may constitute a disability

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SEX DISCRIMINATION

• Harassment (gender - specific or sexual
• Safety justification rejected in Starmer
• Refusal of job share amounted to discrimination
  (range of reasonable responses test rejected)
• Civil partners

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RELIGIOUS DISCRIMINATION

• Sunday working may be discriminatory
• Employers attempts to accommodate will be
  relevant

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AGE DISCRIMINATION

• Direct
• - Less favourable treatment
• Indirect
• - Provision, criterion or practice
• - Unless proportionate means of achieving a
  legitimate aim

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EXCEPTIONS

• Retirement
• National minimum wage
• multipliers based on age for statutory redundancy
  calculation
• Provision of benefits based on length of service
• Provision of life assurance cover to retired
  workers

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EMPLOYMENT BENEFITS

• Pay and non pay
• Where the employees service exceeds 5 years the
  length of service criterion must fulfil a
  business need e.g. encouraging loyalty, rewarding
  experience

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• Enhanced redundancy will have to be objectively
  justified unless made to qualifying employees
• - those with less than 2 years service
• - volunteers for redundancy
• - higher multipliers or weeks pay can be used

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RETIREMENT

• Compulsory retirement under 65 will have to be
  objectively justified
• Retirement at or over 65 will be fair provided
  the retirement is genuine and statutory
  procedures complied with

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RETIREMENT (2)

• Notification in writing 6-12 months before
  retirement
• 8 weeks pay for failure to consider

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DUTY TO CONSIDDER PROCEDURE

• Employer gives notice
• Employee must make request at least 6 weeks
  before retirement date
• Meeting
• Employee can claim unfair dismissal if procedure
  is not complied with
• Right of appeal
• No limit on number of applications to extend
  contract

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WORKING TIME REGULATIONS

• No holiday entitlement during sickness absence
• Claims for unpaid sickness must be made within 3
  months of the end of the holiday year
• Rolled up holiday pay is unlawful
• Partially unmeasured working time to be abolished

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PARENTAL RIGHTS

• April 2007
• Extended period of paid maternity leave
• Remove qualifying period AML
• Extended paternity leave
• Extend notice of early return
• Allow contact
• Introduce keeping in touch days
• Extend flexible working for carers
• Removes exemption for employers with 5 or fewer
  staff

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MATERNITY

• Maternity pay must reflect pay rises
• Bonus payments can reflect maternity absence
• Pregnancy-related absence can be treated as
  sickness absence

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TUPE

• April 2006
• Covers contracting out
• ETO contract variations if the reason entails a
  change in the workforce
• Written notification by transferor of identities
  of transferring staff and rights/liabilities
• Transferor and transferee will be jointly liable
  for failure to consult
• Insolvency

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REDUNDANCY

• Where 20 or more face redundancy consultation
  must end before notices served
• Consider bumping

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Jane Klauber, Partner

• 020 8394 6483
• The Charity Team at Russell-Cooke
• 2 Putney Hill, Putney
• London SW15 6AB
• 020 8789 9111
• www.russell-cooke.co.uk