Given your interest in Employment law, you may find some of our other updates particularly useful. Health & Safety, Pensions and Employee Incentives, for example, have been selected by many of our clients who have signed up to Employment. To register for additional bulletins, guides and seminars, visit sign up.

Please feel free to forward on this bulletin to friends and colleagues who may find it of interest and wish to subscribe themselves.

News

Coalition Plans - Employment Laws Set for Change
Coalition plans for employment laws moved a step closer to becoming reality following George Osborne's speech at the Conservative Party Conference in Manchester last month.

The qualifying period of service required to bring an unfair dismissal claim is set to be increased from one year to two in April 2012, followed a year later by the introduction of fees for taking claims to tribunal.

Opinion on the moves are, unsurprisingly, divided. John Cridland, CBI Director-General is quoted as saying they "will give firms more confidence to hire". However, the CIPD's Chief Economic Advisor, Dr John Philpott, states that increasing the qualifying period "runs the risk of reinforcing a hire and fire culture in UK workplaces" and while the policy change "will undoubtedly be welcomed by the de-regulation lobby...it isn't the way to boost growth and jobs."

On the proposal to introduce fees, figures being widely quoted in the press are £150-£250 when lodging a claim, and a further £1000 in order to proceed to a hearing. However, it seems these are not yet set in stone, as a Ministry of Justice consultation on fee levels is expected to be launched before the end of November.

Protected Conversations - Capability and Retirement Concerns
Nick Clegg was recently suggested that employers may be given the right to have "protected conversations" with staff about capability or retirement issues, the implication being that no evidence about these discussions could then be led in the employment tribunal.

Whether this proposal ever makes it onto the statute books remains to be seen. However, for many employers the repeal of the default retirement age ("DRA") has led to a realisation that they will have to be better at managing performance and capability issues, or else risk being on the wrong end of unfair dismissal, age and disability discrimination claims.

The DRA often provided a useful get-out for employers whose performance management systems were less than robust. But, as the vast majority of employers seem to be opting to operate without a retirement age, increasing reliance will need to be placed on capability as a potentially fair reason for dismissal.

Whatever the reasons for the poor performance employers must have a means of tackling it. If your processes are properly considered and drafted they are more likely to catch a slide in performance before it becomes a real issue, and bring about the performance improvements you desire.

For advice please contact a member of our .

Stress Increase - No.1 Cause of Long-Term Absence
For the first time, stress is the most common cause of long-term sickness absence among both manual and non-manual employees according to the CIPD/Simplyhealth Absence survey.

The link between job security and mental health issues is placed in the spotlight, with those employers planning on redundancies in the next six months significantly more likely to report an increase in mental health problems among their staff (51% compared to 32% among those not planning redundancies).

CIPD Adviser, Dr Jill Miller, is reported as saying: "The survey this year shows that stress is for the first time the number one cause of long-term sickness absence, highlighting the heightened pressure many people feel under in the workplace as a result of the prolonged economic downturn.

"Line managers need to focus on regaining the trust of their employees and openly communicating throughout the change process to avoid unnecessary stress and potential absences. They also need to be able to spot the early signs of people being under excessive pressure or having difficulty coping at work and to provide appropriate support."

For advice and support on managing change or dealing with absence management issues, contact a member of our .

Flexible Working - Not a Burden on Employers
Flexible working is "not a burden on business but an example of 'light-touch' regulation that is more likely to support - rather than inhibit - business performance." This is from Mike Emmott, Employment Relations Adviser at the CIPD, commenting on the release of flexible working figures obtained via a freedom of information request.

The CIPD wanted to know how many employment tribunal claims relate to the right to request flexible working. The answer? That of the 218,100 tribunal claims accepted in 2010/11, only 277 contained a claim relating to an employer's failure to properly consider a flexible working request.

News of the figures proved timely as the partially leaked Beecroft report, commissioned by Steve Hilton, David Cameron's chief policy adviser, apparently calls for abolition of the right to request flexible working.

On the back of the figures, the CIPD is urging the Government to stick to its current plans for extending the right to request flexible working to all employees.

Useful Information
The Information Commissioner's Office has published guidance on how to deal with requests for access to information held in complaint files.

Click here to view.

Legislation

Migrant Workers - Shorter Shortage Occupation List
In the last edition we flagged that the Migration Advisory Committee had recommended that jobs be removed from the shortage occupation list. Those recommendations have been accepted by the government and will take effect on 14 November 2011.

For further details of the changes, click here.

Case-Law

Holiday Pay - Request Needed During Sickness Absence
While we await the government response to its "Modern Workplaces" consultation, a steady stream of cases continues dealing with the tricky teaser that is holiday pay during sick leave.

Most recently, in Fraser v Southwest London St George's Mental Health Trust, in which the President of the EAT was presiding, it has been decided that an employee on long-term sick leave must request annual leave in accordance with the Working Time Regulations in order to be entitled to payment for it.

This case will be helpful for those employers faced with defending claims for holiday pay, particularly those going back a number of years.

Re-Engagement Offered - Failure to Consider
Debique v Ministry of Defence is a case which demonstrates the bearing which an employer's actions after termination of employment can have on the ultimate tribunal outcome.

The case involved a single mum who worked in the British Army. She resigned on the basis that she had been treated less favourably on account of her childcare responsibilities and brought race and gender discrimination claims.

Following termination of employment, the MoD offered her a new role with a unit which had good childcare facilities and which would not involve active service deployment for five years. However, she rejected it and continued with her tribunal claim.

Her discrimination claims were successful and, while the tribunal awarded £15,000 for injury to feelings, when it came to deciding compensation for loss of earnings, the tribunal declined to make an award. They held that she had failed to mitigate her loss when she refused to accept the offer of re-engagement and that this refusal was unreasonable.

The EAT accepted that in some discrimination cases it would be inappropriate to expect an employee to accept a re-engagement offer, but this was not such a case.

Mistaken Dismissal - Retraction Ineffective
CF Capital plc v Willoughby involved an unfair dismissal claim by an individual whose employer claimed that they had indeed sent a letter of dismissal, but that this was done in error and they had tried to retract it.

The circumstances were that the employer was considering requesting that staff become self-employed in order to avoid redundancies. Ms Willoughby expressed an interest and requested more details of what would be involved. In response she received an agency agreement and a letter stating her employment contract would be terminated as of 31 December.

On 5 January the employer informed Ms Willoughby that there had been a misunderstanding and she could continue as an employee if she wished. But she claimed she had been dismissed and lodged employment tribunal claims for wrongful and unfair dismissal.

The case has so far got as far as the Court of Appeal. The Court has stated that the "rule" is that once a notice of dismissal is given, it cannot be withdrawn except with the consent of the party to whom it has been given. So, in this case, even though the giving of notice had been a mistake, it could not be unilaterally withdrawn.

Philosophical Belief - Mixed Success for Claims
Two recent cases have considered what amounts to a philosophical belief for the purposes of the provisions which prohibit discrimination on the grounds of religion or belief.

Anyone seeking to rely on the philosophical belief provisions must be able to show that their belief is:

• genuinely held
  
• a belief and not an opinion or viewpoint based on the present state of information available
  
• a belief as to a weighty and substantial aspect of human life and behaviour
  
• capable of attaining a certain level of cogency, seriousness, cohesion and importance
  
• worthy of respect in a democratic society, is not incompatible with human dignity and is not in conflict with the fundamental rights of others
  
  

In the first of the recent cases, a belief in the sanctity of life which extended to a Mr Hashman's "fervent anti-fox hunting belief (and also his anti-hare coursing belief)" were held to amount to a philosophical belief for the purposes of the legislation. He has now been successful in a discrimination claim after he was dismissed from his job at a garden centre because of his beliefs about animal welfare and his active work to protect animals from hunting. Press reports suggest an agreed five-figure sum was paid by way of compensation.

Seminars

Breakfast Seminars
Our next round of seminars will take place in March 2012. Given the rate at which the coalition government are making announcements about employment law, we're sure that there will be a great deal to tell you about! Should you wish to register to receive an invite, please sign up.

Debt Recovery

Wasted Training Costs? Get them Back!
Are you sick of spending lots of money on training employees, only for them to take that knowledge elsewhere? If your contracts provide for training costs to be repaid on termination of employment, then such sums can be recovered inexpensively. Our Debt Unit works on a fixed fee basis and can help you with this. For more information, please contact our Debt Recovery Manager, Sue Morrin.

And Finally...

The display of name badges by employees is quite commonplace. But, would you think it reasonable to ask your female staff to display their bra size alongside their name? Swedish lingerie chain Change does.

Susann Haglund, company CEO, claims it was the employees who came up with the idea and that the tags were intended to aid customers in their choice by showing them what size might be right for their body shape.

While Ms Haglund claims wearing the badge with size is completely voluntary, an employee is quoted in the Swedish press as stating: "When you start [working at Change], you receive a document which states that 'name tag with size is always worn,' so to me that doesn't reflect that it was voluntary."

The policy was introduced three years ago, but recent discussions between Change and the trade union have broken down and discrimination proceedings are now in the offing.

As one employee is quoted as saying: "We have dirty old men coming into the shop looking at my cup size. Why should everyone get to know that? Guys selling underwear don't have to show their size.

Contact Us

If you think your organisation may be affected by any of the above, or if you have any other questions, please contact:

Amanda Jones
Partner and Head of Department
0131 228 7134
amanda.jones@mms.co.uk

This briefing is written as a general guide only. It is not intended to contain definitive legal advice which should be sought as appropriate in relation to any particular matter.