Employment Law as it affects UK Charities

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Employment Law as it affects UK Charities

• William Garnett
• Bates Wells Braithwaite
• Partner

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Social Policy?

• 1st April 1st October
• The role of Tribunals
• Statute/authorities/common law

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Claim Profiles

• Claims 2002/3 172,322
• Claims 2003/4 197,365
• Claims 2004/5 156,081
• Growth areas
• Sex discrimination
• Equal pay
• Pregnancy related claims
• Religion or belief
• Sexual orientation

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Successful claims in the Tribunal 18

• Dismissed at hearing 8
• Unfair dismissal compensation
• Over 50 were awarded compensation of less than
  4,000
• A further 20 coming in the category of under
  8,000
• A further 12 under 12,500
• 5 coming in the category of between 30,000 and
  a maximum award of 56,800

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• Compensation for race discrimination
• 20 under 2,000
• 50 under 7,000
• 10 at over 50,000
• maximum award 170,953
• Similar profiles for sex discrimination and
  disability discrimination

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• Costs Claimants were awarded costs in 281 cases
  and Respondents in 755 cases
• Maximum award - 15,000
• Average award - 1,828

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Volunteers

• Are they employees?
• Are they entitled to the minimum wage?
• Are they protected by the equal opportunities
  legislation?
• Are you liable for their acts?

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• Is there?
• An intention to create legal relations
• Offer and acceptance
• Consideration
• If there is a contract, is it a contract of
  employment?
• South East Sheffield Citizens Advice Bureau v-
  Grayson 2004
• Melhuish v- Redbridge Citizens Advice Bureau
  2005

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Agency Workers

• Is the worker an employee of anyone?
• Are they an employee of the agency?
• Are they an employee of the organisation for
  which they are working?
• Short term and long term relationships.

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• Dacas v- Brook Street 2004
• Bunce v- Sky Blue 2005
• RNLI v- Bushaway 2005
• Leaky v- Shelter 2005

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• Look at the contractual terms between the agency
  and the individual
• Look at the terms between yourself and the agency
• Who is exercising control over this person?
• How is the tax being dealt with?
• What is their working pattern/history?

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Sick Leave and Holiday Pay

• Holiday pay under the contract?
• Statutory holiday pay Working Time Regulations
  (20 days including Bank Holidays)
• Statutory holiday during sick leave?
• Does holiday accrue during sick leave?
• Does it accrue during long term sick leave?
• Can individuals take holiday whilst sick?
• Do you need to review your contract?

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Rolled up holiday pay

• Is the sum identifiable in the hourly rate?
• Is it an additional amount?
• Caulfield Others v- Marshalls Clay Products
  Ltd 2004
• Smith v- A J Morrisroes Sons 2004

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Equal Opportunities Disability Discrimination

• The current position
• Physical or mental impairment which has a
  substantial and long term adverse effect on his
  ability to carry out normal day to day
  activities
• Mental impairment includes an impairment
  resulting from a mental illness but the illness
  must be clinically well recognised
• Progressive conditions need to show that their
  condition resulted in an impairment which
  substantially affects normal activities

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• Position as of 5th December
• A mental illness will no longer need to be
  clinically well recognised.
• People with progressive conditions HIV, cancer
  and MS will automatically be considered to have
  a disability

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Practical effect?

• How will this be dealt with in the Tribunal?
• Value of expert reports

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Changes 1.10.2004

• Smaller employer exemption gone
• New definition of direct discrimination
• Reasonable adjustments widened from any
  arrangements to a provision criterion or
  practice bringing it into line with other
  discrimination legislation

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• Introduction of a new definition of harassment
• A person subjects a disabled person to
  harassment where, for a reason which relates to
  the disabled persons disability, he engages in
  unwanted conduct which has the purpose or effect
  of
• Violating the disabled persons dignity or
• Creating an intimidating, hostile, degrading,
  humiliating or offensive environment for him
• Reasonableness caveat

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• Reponses to questionnaires 8 weeks
• Burden or proof Where, on the hearing of a
  complaint, the complainant proves facts from
  which the Tribunal could conclude in the absence
  of an adequate explanation, that the Respondent
  has acted in a way which is unlawful under the
  DDA, the Tribunal must uphold the complaint
  unless the Respondent proves that he did not do
  so

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• Disability discrimination does not require equal
  treatment
• The Act does not regard the differences between
  disabled people and others as irrelevant. It
  does not expect each to be treated in the same
  way. It expects reasonable adjustments to be
  made to cater for the special needs of disabled
  people. It necessarily entails an element of
  more favourable treatment. (Archibald v- Fife
  Council 2004). See also Miekle v-
  Nottinghamshire County Council 2004.

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Age Discrimination

• The regulations prohibit direct and indirect
  discrimination for reasons relating to age
• This will apply to the young and the old.
• It will be possible to justify a difference of
  treatment on the grounds of age if it can be
  shown that it fulfils a legitimate aim and the
  particular circumstances make it appropriate and
  necessary

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• Retirement ages 65 no unfair dismissal claims
• Over 65 protection from unfair dismissal,
  unless given 6 and 12 months notice of a
  retirement date, in so far as the dismissal is by
  reason of retirement.
• Dismissals for other reasons fully protected.

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• Redundancy calculations will lose the age
  enhancement but maintain the service enhancement
  for the purposes of the calculation
• Length of service benefits, under 5 years will
  continue
• Over 5 years - limited circumstances in which
  lawful

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Sex Discrimination

• New definition of indirect sex discrimination
  coming into line with the other statutes
• New definition of harassment
• Confirmation that less favourable treatment on
  the grounds of pregnancy or maternity leave
  constitutes sex discrimination

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• 8 week time limit for questionnaires
• St Helens MBC v- Derbyshire 2005
• North Western Health Board v- McKenna 2005

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Race Discrimination

• On racial grounds. See
• Redfern v- Serco Ltd 2005
• Inferences see Dattani v- Chief Constable of
  Western Mercia Police 2005

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TUPE

• New legislation is expected to come into force on
  6th April 2006
• The present situation covers
• Economic entity
• Which retains its identity post transfer
• New proposals
• Service provision change where exclusive to one
  client

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• Obligation to notify transferee of identity of
  employees
• Increased rights for insolvency
• Practitioners to terminate and vary contracts

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Pensions Act 2004

• Previously pensions excluded from TUPE
• Pensions now include via the Act for transfers
  occurring after April 2005
• Regardless of pre-transfer scheme, the new
  employer must either match the transferors
  scheme or contribute up to 6 of pay, whichever
  is lower

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Information and Consultation Regulations

• Regulations came in on 6th April 2005 applying
  to businesses of 150 or more employees
• Will be extended in April 2007 for businesses of
  100 employees and to businesses with 50 employees
  by April 2008

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• Ambit of consultation
• The process
• Requests - 10
• Pre-existing arrangements 40
• Information and consultation not a problem,
  engage in the process

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Statutory dismissal, disciplinary and grievance
procedures

• Into force 1st October 2004
• Dismissal and disciplinary procedures
  procedure applies on any dismissal for any
  reason.
• Three stage process letter, hearing, appeal
• Less than a years service?
• The modified procedure for gross misconduct

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• Consequences of non-compliance increase or
  decrease of between 10 and 50 and the dismissal
  is automatically unfair

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Statutory Grievance Procedure

• For any claim to be pursued in the Tribunal the
  employee must bring a grievance query
  constructive dismissal
• Three stage process complaint, hearing, appeal
• Jurisdiction and adjustment of awards

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Unfair Dismissal

• Variation to contracts see Richardson v- Scott
  Co 2005

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Human Rights

• The relevance of the convention rights as between
  an individual and a private employer have been
  the subject of recent consideration. See X v- Y
  2004, Copsey v- WWB Devon Clays Ltd 2005
• Organ of last resort?

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National Minimum Wage

• Variations in rates 1st October 2005 adults
  5.10
• Young workers 4.25
• Accommodation allowances 3.90 per day
• Residential care workers and on call workers
  relationship with Working Time Regulations?

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• William Garnett
• Head of Employment
• Bates Wells Braithwaite
• 2-6 Cannon Street
• London EC4M 6YH
• Tel [phone]
• Email w.garnett_at_bateswells.co.uk

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