February 2012Sep 2011Aug 2011 |
Updated: February 4, 2012
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February 2, 2012
Changes in favour of Employer – at last!
Two important changes are to be introduced this year which are intended to reduce the number of employment tribunal claims and boost the economy.
Firstly, the qualifying period for unfair dismissal will be increased from one year to two years with effect from 1 April 2012.
Secondly, fees will be introduced for tribunal claims. The information currently available on the fee scale is somewhat vague but second-hand information seems to suggest the following:
- upfront fee of £250 when lodging ET1;
- further fee of £1,000 payable by Claimant when the hearing is listed;
- higher fees if the claim is for over £30,000;
- fee to be refunded if Claimant wins, and forfeited if they lose
- fees to be waived for those with no money
Top Tip
Employers should bear in mind the up coming changes, in particular the qualifying period, when contemplating dismissals.
Notice of dismissal cannot be retracted – normally
Where an employer provides an intended, unambiguous written notice of termination to an employee, can the employer subsequently retract the notice on the basis it was a mistake? The Court of Appeal says no unless there are exceptional circumstances.
In CF Capital v Willoughby the employer offered the employee, as an alternative to redundancy, the opportunity to work on a self employed basis. Following discussions between the parties, the employer, believing the employee content to accept, informed the employee her contract would terminate and a new consultancy agreement would be issued shortly. The employee rejected the offer to become self-employed. The employer re-instated the employee’s original terms of employment. The employee refused to return to work which the employer took to mean she had resigned. The Court of Appeal found that the employer had intended to dismiss the employee, having done so using clear and unambiguous terms, and accordingly a decision of unfair dismissal was held.
It is possible to retract a notice to dismiss only if the employee consents.
Top Tip
Employers should consider the implications carefully before terminating the employment of an employee. If you are in any doubt as to what the best option is for your company then it is best to seek legal advice.
September 30, 2011
Employee or Self-employed? Let the facts decide
The Supreme Court’s decision in Autoclenz Ltd v Belcher has confirmed that written agreements, between an employee and employer, suggesting the status of an employee can be disregarded when they do not reflect the actual legal obligations between the parties. It no longer needs to be shown that there was a common intention to mislead to be able to challenge the express terms of such a written agreement.
Autoclenz carried out a valet service and advertised for self employed valets to assist with a contract with British Car Auctions. The valets later challenged the self-employed status implied in their contract as the terms did not reflect the reality of the situation. In the instant case based on the legal obligations of the parties it was confirmed that the valets were employees.
Top Tip
The status of persons employed will determine an employer’s obligations such as paid holiday and sickness. Employers should seek legal advice to help determine if their workforce have the correct status; employees, workers or contractors.
New rights for Temps
Employers will be further burdened with more legislation and costs following the introduction of the new equal treatment rights for workers which came into force on 1st October 2011.
Agency workers in the private, public or voluntary sector will have a right to use any facilities provided by the hirer - such as a crèche, canteen or transport services from the first day. They will also be entitled to information about internal vacancies and to apply for them.
Following a 12 week period in the same role with the same company, agency workers will be entitled to the same pay, holiday entitlement and working hours as permanent staff. They will also receive better maternity rights.
Some critics say that these new rights may further restrict the jobs market in a failing economy.
Top Tip
Employers should review the position of any temp they currently use and discuss with the agency supplying their temps how the changes will affect them.
August 15, 2011
Be aware of the dismissal procedures
Ms Shoesmith was removed from her post as Director of Children's Services at Haringey on the Secretary of State's direction and shortly thereafter summarily dismissed by Haringey. The Court held that, whatever Ms Shoesmith's shortcomings might have been, "she was entitled to be treated lawfully and fairly and not simply and summarily scapegoated".
It has been reported that the government and Haringey will seek leave to appeal the decision to the Supreme Court on the basis that they followed due process. Whether any agreement through negotiation or mediation can be reached, as recommended by the Court, remains to be seen.Top Tip
Employers when dismissing employees do not fall foul when it comes to the correct dismissal procedure. Otherwise, you run the risk of losing the claim even if on the facts the dismissal was fair.
Cost can justify discrimination!
The Employment Appeals Tribunal has handed down its decision in the case of Cherfi v G4S Security Services Ltd that an employer can rely upon cost alone in order to justify an otherwise indirectly discriminatory policy. Mr Cherfi, a Muslim, was employed as a security guard and regularly left the site on Friday to attend a Mosque. This was stopped by his employer on the grounds that they were contractually obliged to ensure that the specified number of security guards were present throughout operating hours.
Mr Cherfi brought a claim for indirect religious discrimination alleging that G4S's policy placed Muslims at a particular disadvantage but the ET held that the financial implications for G4S of being in potential breach of contract justified the requirement. The EAT held that financial implications were sufficient to make the discriminatory policy reasonable and proportionate.
Top Tip
This case appears to move away from the previous position that not only do employers have to show that a discriminatory policy is justified on costs alone there has to be a legitimate aim. This is a positive move for employers but if you are concerned that your policies maybe indirectly discriminatory you should seek legal advice.
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