EMPLOYMENT LAW SEMINAR

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EMPLOYMENT LAWSEMINAR

• Yasmin Tayob Solicitor
• yasmintayob_at_howlettclarke.co.uk
• DD Tel. [phone]
• www.howlettclarke.co.uk

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Employment Law Update

• EMPLOYMENT STATUS
• - employed or self employed?
• SMOKING BAN
• smoking implications for employees and employers
• FAMILY FRIENDLY LAWS
• guidance on the latest developments
• HOLIDAYS
• increase in statutory allowance
• AGE DISCRIMINATION
• - a review of the regulations

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Employment Law Update

• Employed or Self Employed?
• Continuing problems faced by employers recruiting
  temporary or casual staff

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Employment Status

• Three essential requirements of employee status
• Mutuality of Obligation
• Personal service
• Control

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Employment Status

• Other factors which it is necessary to consider
  when deciding status, include
• Whether the person uses their own tools
• Whether they can sub contract
• How they are paid
• Whether they benefit from employee perks
• Whether they are subject to companys
  disciplinary procedures or other rules and
  procedures

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Workers

• Broader than employee embracing certain types of
  self employment
• Working Time Regulations 1998
• National Minimum Wage Act
• Part time workers (Prevention of Less Favourable
  Treatment) Regulations 2000

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Others

• Those in employment
• Agency staff
• Casual staff
• e.g. seasonal workers

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The Dacas Case

• Dacas v Brooks Street Bureau
• Mrs Dacas was a cleaner provided to Wandsworth
  Council by Brook Street Bureau
• Worked under that arrangement for 4 years until
  Wandsworth asked Brook Street to remove her on
  disciplinary grounds

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The Dacas Case

• Court of Appeal decided Mrs Dacas was NOT an
  employee of Brook Street but WAS an employee of
  Wandsworth Council
• Crucial to this case was that Mrs Dacas was under
  day to day control of Wandsworth

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Cable and Wireless Case

• Cable and wireless PLC v Muscat
• Muscat was employed by E Ltd as a
  telecommunications expert
• E Ltd told him he must become a designated
  contractor
• M set up his own service company - M Ltd

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Cable and Wireless Case cont

• Business subsequently acquired by CW who
  insisted Muscat must provide his services through
  an agency, A Ltd
• The agreement between Muscat and A Ltd expressly
  stated that Muscat was not an employee of CW
• When CW said they didnt need him any more he
  sued CW for unfair dismissal

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Cable Wireless Case cont

• The Employment Tribunal and EAT held that Muscat
  was an employee of CW
• WHY?
• He reported to CW managers
• He was provided with a laptop and mobile phone
• He arranged his leave to suit CW
• He was an employee of CW in all but name

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RNLI Case

• RNLI v Bushaway
• Bushaway registered with an agency and was
  offered temporary work at RNLI in 2002
• She signed an agreement with the agency stating
  that she was not an employee of RNLI
• She signed a separate agreement with RNLI stating
  that RNLI was under no obligation to offer her
  work

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RNLI case

• She became an employee at RNLI in March 2003
• She resigned in March 2004 claiming constructive
  dismissal
• EAT held that one must look behind the written
  contract to how the arrangement worked in
  practice
• She had been an employee since 2002!

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James V Greenwich Council

• Mrs James was agency worker worked for
  Greenwich for 5 years
• She claimed a contract in place
• EAT upheld Tribunals decision that no implied
  contract as no mutuality of obligation
• Guidance given on when it is appropriate to imply
  a contract between worker and end user
• Said not appropriate to imply a contract

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Craigie Haringey Case

• Mr Craigie signed contract with agency and
  started work for the Local Authority in Nov 2004
• Claimed Unfair Dismissal against the Local
  Authority when his services were dispensed with
• EAT considered Dacas and Cable Wireless
• EAT upheld Tribunals decision that Mr Craigie
  was NOT an employee of the LA
• EAT said no necessity to imply a contract of
  employment between agency worker and end user
• EAT commented law on agency workers
  unsatisfactory and it requires legislation to
  change it

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Recent Case Law

• Astbury Gist Limited and Heatherwood and Wexham
  Park Hospitals NHS Trust
• EAT in both cases held that the agency workers
  were NOT employees of the end user
• EAT in Heatherwood pointed out that it was not
  enough to form the view that because the Claimant
  looked, acted and was treated like an employee of
  the Trust, that the Tribunal must imply a
  contract of employment

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Good Practice Recommendations

• Adopt a policy on the use of agency workers and
  contractors
• Keep these arrangements under review
• Use of service companies
• Do not treat them like employees
• Do not allow contracts to continue beyond 12
  months if you want to be risk free

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UK Smoking Ban

• When?
• Scotland - 26th March 2006
• Wales - 2nd April 2007
• Northern Ireland - 30thApril 2007
• England - 1st July 2007
• Where?
• all indoor public places
• - still allowed outdoors and places deemed to be
  homes such as prisons, care homes and hotel
  rooms

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Smoking Ban Cont

• Could still be banned at outdoor locations that
  are substantially enclosed e.g. railway platforms
  football grounds. places with ceilings or
  roofs.
• Estimated that 600,000 people will give up
  smoking
• Implications Fines
• Employees 50
• Employers up to 2500 if they do not stop you
• Failure to display No Smoking
• signs - 200
• if case goes to court up to 1000

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Smoking Ban Ireland

• Implemented In Ireland
• 28th March 2004
• Successful in Ireland
• Included Company Cars UK Plans uncertain at the
  present
• Indoor Lock In still adhering to the ban

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Family Friendly Laws Introduction

• Choice for parents, the best start for children
  a ten year strategy for childcare December 2004
• Work and Families Act 2006 (WFA) June 2006

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Main areas of change

• Maternity leave period extended (same for
  adoption leave)
• Statutory Maternity Pay extended
• Flexible Working expansion of its application
• Paternity Leave provisions
• Miscellaneous

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Maternity Pay

• Amount increases from 26 weeks to 39 weeks for
  babies due on or after 1st April 2007
• SMP to be extended to 52 weeks at some future
  date
• Payment period can now begin on any day of week
• Payments to be rounded up to nearest penny

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Removal of Qualifying Period for Additional
Maternity Leave

• Babies born on or after 1st April 2007 (applies
  to adoption leave as well)
• All women now entitled to Additional Maternity
  Leave (AML) regardless of length of service
• N.B. distinctions between contractual rights for
  employees on OML and AML remain

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Other Changes

• New Act means employees need to notify employers
  of return to work 8 weeks before (used to be 28
  days)
• Introduction of 10 Keeping in Touch days (KIT)
• - maternity period not brought to an end by KIT
• employee entitled to SMP throughout (112.75 pw
  or 90 of average weekly earnings)
• work per employment contract

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KIT days other changes cont

• - Remaining leave period not extended by KIT
  days
• Arranged by mutual consent
• No automatic right to demand work to be provided
  or that work be done
• Reasonable contact permitted between employee and
  employer during maternity leave

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Flexible Working

• What is Flexible Working?
• - part-time, flexi-time, job sharing, time off
  in lieu or banked hours, working from home,
  career break
• Since April 2003 right to request flexible
  working applicable to
• employees with children under 6
• employees with disabled children under 18
• From 6th April 2007 right extended to carers
  for an adult where employee
• married to partner/civil partner of that adult
• a relative
• living at the same address

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Flexible Working cont

• Request needs to be made in writing by employee
• Employer must arrange a meeting to discuss
  matters with employee
• Right to be accompanied at the meeting
• Notify employee of decision within 14 days of
  request if rejected, right to appeal

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Paternity Leave Provisions

• Currently
• 2 weeks ordinary paternity leave (OPL) within 8
  weeks of babys birth
• Statutory paternity Pay (SPP) payable (112.75pw
  or 90 average of weekly earnings)

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Paternity Leave cont

• Future proposals
• Introduction of Additional Paternity Leave (APL)
  of up to 26 weeks when maternity pay period
  extended to 52 weeks
• - father/spouse/civil partner/ person
  responsible for childs upbringing
• taken at least 20 weeks after childs birth,
  within first year of childs life
• share leave between mother and father
• special provisions where mother dies in
  childbirth or soon after

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Paternity Leave Provisions cont

• Same contractual rights as mother returning from
  OML
• Introduction of 10 Keeping in Touch days (KIT)
  same as with AML
• Entitlement to Additional SPP at same rate as SPP

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Miscellaneous

• Removal of small employer exemption
• from 1st April 2007 dismissal on grounds of
  pregnancy / childbirth / maternity or adoption
  leave automatically unfair
• any employer with 5 or less staff no longer has
  small employer defence that maternity/paternity
  leave is not practical for business

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Holidays

• Increase to statutory holiday entitlement
• 1st Oct 2007 from 20 to 24 days
• 1st Oct 2008 from 24 to 28 days
• Future provision to increase a weeks pay
• Future provision to carry over holidays
• Future provision not to pay in lieu
• of statutory holiday (applies to the
  increase)
• - Consultation with Dti 13th April 2007

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Age Discrimination

• A look at the new
• Age
• Discrimination Regulations

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Main Provisions

• The Employment Equality (Age) Regulations became
  law on 1st October 2006
• Outlaw direct and indirect discrimination on the
  grounds of age
• Applies to ALL ages and also applies to apparent
  age
• Outlaw harassment and victimisation
• Remove the current age limit
• for claiming unfair dismissal
• Individual employees can be liable for acts of
  discrimination
• Employers vicariously liable for employees acts
  of discrimination

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Main provisions cont

• Default retirement age of 65 set
• Introduce a duty to consider a request to work
  beyond retirement age
• Employer must inform employee of right to request
  no more than 12 months but not less than 6 months
  prior to retirement
• Employer must consider a request made in writing
  and hold meeting and allow appeal if request not
  granted
• Lower retirement age only allowed if objectively
  justified

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Who is Protected?

• All Employees
• This includes Workers e.g.. apprentices, agency
  workers
• Partners in Firms and members of Limited
  Liability Partnerships
• Police, Barristers, Trade Unions, higher and
  further education bodies, vocational training
  providers, employment agencies

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Direct Discrimination

• Where a person is treated less favourably on the
  grounds of age
• e.g. -
• - we require someone aged 21-39 to work in a
  busy office environment
• This will be direct discrimination unless it can
  be justified
• Or a genuine occupational requirement e.g.
  Modelling or an actor

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Indirect Discrimination

• Where an apparently neutral provision puts a
  certain age group at a particular disadvantage
  and which is not a proportionate means of
  achieving a legitimate aim
• e.g.
• - We require a driving instructor with at least
  10 years experience (a driving instructor only
  needs 4 years experience to qualify, therefore
  indirect discrimination)

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Length of service and pay exemptions

• Use of length of service criteria as a condition
  of awarding pay/benefits will be lawful where
• It is done to reflect greater experience or to
  reward loyalty or to increase or maintain staff
  motivation
• There will be a business benefit
• The employer applies the length of service
  criterion similarly to staff in similar
  situations

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More exemptions

• Any length of service requirement of five years
  or less will be exempted and will be able to
  continue (the 5 year exemption)
• Any length of service requirement that mirrors a
  similar requirement in statute will be exempted
  and will be able to continue
• Pay related to the National Minimum Wage
• Enhanced Redundancy
• Life Assurance

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Example

• ABC Limited increases the holiday entitlement of
  staff during their first 3 years of service. They
  also have a contractual redundancy payment scheme
  which only applies to staff with 2 years service
• The holiday provision would be exempt from the
  regulations under the 5 year exemption rule. The
  redundancy scheme would be exempt as it mirrors
  the statutory scheme

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Harassment

• Harassment includes behaviour that is offensive,
  frightening or in any way distressing
• May involve nicknames, teasing, name calling or
  other behaviour which is upsetting
• May be about the individuals age or about the
  age of those with whom the individual associates
• It is good practice to protect your workers from
  harassment by third parties e.g. service users
  and customers
• e.g. -
• - A young employee is continually told he is
  wet behind the ears and straight out of the
  pram which he finds humiliating and distressing.
  This is harassment.

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Victimisation

• This is when an individual is treated
  detrimentally because they have a complaint about
  discrimination or intend to make a complaint
  about discrimination or harassment
• May become labelled a troublemaker, denied
  promotion or training, or be sent to Coventry
  by colleagues
• If employer fails to take reasonable steps, or
  prevent it happening, may be ordered to pay
  compensation. Individuals who victimise may also
  be ordered to pay compensation

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Victimisation cont

• Discrimination, harassment or victimisation at
  the end of a working relationship e.g. References
  both verbal and written
• E.g. -
• - A Manager is approached by someone from
  another organisation. He says Ms A has applied
  for a job and asks for a reference. The Manager
  says that they cannot recommend her as she wasnt
  accepted by other staff because she was too
  young and inexperienced. This is direct
  discrimination because of age.

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Retirement

• Regulations introduce a planned retirement
  procedure where an employee wants to work past
  retirement age
• An employer must give 6-12 months notice to
  anyone it wishes to retire
• Employee must make a request not less than 3
  months before retirement date to continue working

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Retirement

• Retirement will be potentially fair reason to
  dismiss
• Breach of procedure will mean dismissals are
  automatically unfair

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The Practicalities

• Whilst ageist adverts are not unlawful, concern
  that it would be evidence of discrimination
• The word young found to be unlawful in Irish
  case of Equality Authority v Ryanair 2004
• Other problem phrases such as mature, recent
  graduate, willing to work long hours, ideal
  for a new beginner and willing to socialise
• Application Forms ACAS recommends removing
  age/date of birth question and any unnecessary
  information about periods and dates being
  expelled from Application Forms

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Good Practice Recommendations

• Review recruitment policies and the way you
  advertise e.g. do not ask for a young dynamic
  candidate or someone with 10 years experience
• Include Age in your Equality Policy
• Make sure ALL employees are aware (through
  TRAINING) that it is unlawful to discriminate,
  harass or victimise on grounds of age
• Remove references to age/date of birth from your
  Application Form but include it in a diversity
  monitoring form to be retained by HR/personnel

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Good Practice Recommendations cont

• If you use an employment agency, make sure they
  act appropriately and in accordance with the
  Companys equality and diversity procedures
• Diarise all employees approaching retirement age
  at least 7-12 months before and make sure you
  have standard letters in place to deal with the
  request
• Remember to hold a meeting to deal with the
  request and offer right of appeal if denied
• Make sure Managers are trained to deal with
  requests and train ALL staff on age
  discrimination

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