UK bosses have been warned not to replicate the bullying behaviour of Sir Alan Sugar in reality show “The Apprentice”.

Psychologists have warned against bullying leadership behaviour, following the popularity of the programme.

Concerns have arisen that leading retail executives may choose to follow the same tactics in attempts to motivate employees, but leading psychologist Professor Graham Jones has warned that this may have the opposite effect. Professor Jones said: “To be a high performer like the contestants on The Apprentice, individuals must be capable of not just managing the pressure of the job but positively thrive on it.

“Yet that is only possible if businesses have good leaders that encourage and inspire staff to work together successfully as a team, not bully them and ultimately force them to turn against one another.

“Communication and support every step of the way is key, so that productivity and well-being in the workplace remains consistent.

“Considering 18.9 million days are lost to workplace bullying each year, Sir Alan Sugar would do well to address his leadership style. On top of the threat of costly litigation, it also costs individual companies around 10 per cent of their annual profits.”

www.theretailbulletin.com, May, 2006

A gay banker who was dismissed on gross misconduct charges by the HSBC bank received less favourable treatment because of his sexuality but was not sacked for being gay, an employment tribunal has ruled.

Peter Lewis, 45, was accused by the bank of sexually harassing a colleague in the bank’s gym. In response, Mr Lewis filed a £5m damages claim against his employer; the case was the first of its kind to be brought in the City under new legislation concerning discrimination on grounds of sexuality.

This week, a tribunal found HSBC guilty of four of the 16 charges brought by Mr Lewis. Natalie Hattrell, the bank’s human resources manager, was found to have treated Mr Lewis less favourable because he was gay and to have had a “closed mind” on the question of his guilt with regard to the harassment allegation; however, the tribunal did not issue any finding on the allegation itself, and concluded that “we are persuaded that the decision to dismiss [Mr Lewis] was not, in fact, influenced by [his] sexual orientation [and was] wholly attributable to a genuine and legitimate conclusion that [he] was guilty of the gross misconduct alleged”.

Mr Lewis and his lawyers will now seek full compensation in relation to the four offences identified by the tribunal.

“This can only help embolden those who strive for equality for gay and lesbian people,” Mr Lewis commented.

HSBC said that it was “disappointed and surprised” by the adverse findings of the tribunal on four of the 16 charges.

Guardian, May 5, 2006

The Forum of Private Business (FPB) has moved to defend the UK’s immigrant workforce in the face of criticisms by the chairman of the right-wing pressure group Migration Watch.

Writing in the Daily Mail tabloid this week, Sir Andrew Green called into question the value to the UK economy of the recent influx of migrant workers from eastern Europe and elsewhere.

But the FPB condemned Mr Green’s remarks as “blinkered” and argued that such immigration had been beneficial to the economy as a whole and to the small-business sector in particular.

“Our figures show that the skills gap has closed considerably over the last few years through an influx of both people prepared to do those unpopular, low-paid positions and also highly skilled workers that we have badly needed,” said FPB chief executive Nick Goulding. “The reality is many of the six hundred thousand vacancies that the Government highlighted to be filled have been, by capable and willing workers.

“Does Sir Andrew Green really want us to follow the economic policy of the likes of Germany and France who have taken a blinkered approach to managing their economies, resulting in higher unemployment and the marginalisation of the poor?”

Mr Goulding went on to dismiss Mr Green’s assertion that the increase in immigration from eastern Member States of the EU had had a detrimental effect on the labour market.

“Migrant workers aren’t keeping wages down as these are jobs that no-one else will do for the Minimum Wage,” he observed. “They aren’t taking benefits, they are here to work, and if and when they take a pension it will be because they have earned it.”

FPB press release, May 4, 2006

The Trades Union Congress (TUC) has called for the creation of a national strategy for dealing with migrant workers, which, it argues, would enhance co-operation between regional employment, health, education and housing services and make it more difficult for rogue employers to exploit vulnerable workers.

A TUC and East of England Development Agency (EEDA) seminar on May 9 discussed the benefits of a more coherent, joined-up approach to service provision that could help end the confusion faced by migrant workers, who often have a poor command of English and struggle to adapt to British working life.

Previous TUC research suggests that a minority of employers prey on language difficulties and ignorance of UK employment law to exploit migrant workers by paying less than the national minimum wage, breaking working-time rules and making excessive deductions for accommodation.

Similarly, recent EEDA research highlighted the problems of access to information and recognition of qualifications faced by migrant workers.

TUC general secretary Brendan Barber said: “If there was better coordination of advice on services available to migrant workers, it would make life harder for the rogue employers and agencies who seek to prey on the vulnerability of migrant workers.”

Richard Ellis, chair of EEDA, added: “We would like a cross-Government task force to create an action plan to help migrant workers get a fair deal when they come here. This would go some way towards ending the appalling living and working conditions which many migrant workers face when they take up jobs in the UK.”

Trades Union Congress, May 9, 2006

The House of Lords has today handed down its long awaited judgment in Rutherford and Anor v Secretary of State for Trade and Industry. In a unanimous decision, the Law Lords ruled that the upper age limit of 65 for the right to claim unfair dismissal and redundancy payments is not indirectly discriminatory against men.

The appellants – both of whom were men who were over 65 at the time of their dismissals – argued that the provisions in Ss.109(1)(b) and 156(1)(b) of the Employment Rights Act 1996 (which exclude claims for unfair dismissal and redundancy payments being made by employees who have attained the age of 65) have a disproportionately adverse impact on male employees. The appellants succeeded before an employment tribunal, where they relied on statistics showing that comparatively more men than women work beyond 65, meaning a greater proportion of men than women are barred from unfair dismissal or redundancy claims. However, their claims were dismissed by the EAT and the Court of Appeal. They appealed to the House of Lords.

In dismissing the appeal, the majority of their Lordships – Lord Scott, Lord Rodger and Lady Hale – were of the view that a statistical analysis was not even necessary in this case. As Lord Walker noted, it is not ‘easy to extract from their opinions a single easily-stated principle’. In essence, however, the majority seem to suggest that since the statutory bar to claiming unfair dismissal and redundancy payments applies equally to everyone (i.e. to both men and women) above the age of 65, and to no one below that age, it was not possible to show that the statutory bar disadvantages a higher proportion of members of one sex than of the other.

In any event, the House of Lords agreed with the Court of Appeal and the EAT that, if it were necessary to carry out a statistical analysis, the approach used by the employment tribunal placed too great an emphasis on the disadvantaged group. In their Lordships’ view, the correct approach would have been to take account of the proportions of men and women in the advantaged group (those in the working population below the upper age limit) as well as those who were disadvantaged. When this approach was followed, the statistics were insufficient to establish a disproportionately adverse impact on men.

Having decided that no disproportionate adverse impact existed, their Lordships declined to address the arguments on justification that had formed part of the appeal.

It should be noted that the upper age limits for both unfair dismissal and redundancy payments will be removed when the Employment Equality (Age) Regulations 2006 come into force on 1 October.

The full text of the judgment can be found here.

Incomes Data Services press release, May 3, 2006

The final Employment Equality (Age) Regulations 2006 (SI 2006 1031), which come into force on October 1, 2006 have been published.

The Regulations, which apply to employment and vocational training, prohibit unjustified direct and indirect age discrimination, and all harassment and victimisation on grounds of age.

As well as applying to retirement the Regulations:

• remove the upper age limit for unfair dismissal and redundancy rights, giving older workers the same rights to claim unfair dismissal or receive a redundancy payment as younger workers, unless there is a genuine retirement;
• allow pay and non-pay benefits which recognise and reward loyalty and experience and motivate staff to continue;
• remove the age limits for Statutory Sick Pay, Statutory Maternity Pay, Statutory Adoption Pay and Statutory Paternity Pay, so that the legislation for all four statutory payments applies in exactly the same way to all;
• remove the lower and upper age limits in the statutory redundancy scheme, but leave the current age-banded system in place;
• provide exemptions for many age-based rules in occupational pension schemes.

The Regulations and explanatory memorandum are available from the Stationary Office at: www.opsi.gov.uk/si/si2006/20061031.htm and www.opsi.gov.uk/si/em2006/uksiem_20061031_en.pdf

The regulations, notes on the regulations, ACAS guidance entitled Age and the Workplace, DTI guidance on the pensions aspects of the regulations, information about new retirement procedures and vocational training and the final regulatory impact assessment are all available from the Department of Trade and Industry’s special section on age discrimination at: www.dti.gov.uk/er/equality/age.htm.

Department of Trade and Industry and Office of Public Sector Information, April 29, 2006

The Court of Appeal in England, in British Airways plc v Noble and Anor, has held that contractual arrangements that include a provision for a discount of 4/52 from the calculated total of shift pay, which is then paid proportionately throughout the year, do not result in an underpayment of holiday pay in breach of the Working Time Regulations 1998 reg.16.

The case arose out of a long-standing collective agreement on how British Airways (BA) would administer shift pay. In addition to employees’ basic rate of pay, a shift premium or ‘consolidated rate’ was paid throughout the year (including while the employee was on holiday). To arrive at this rate, a weekly average of pay due for shifts was multiplied by 48 and divided by 52. The claimants submitted that this meant that their payment in respect of annual leave was not “at the rate of a week’s pay in respect of each week of leave”, and that BA was therefore in breach of reg 16(1).

An employment tribunal upheld the claim in 2004. On appeal, the Employment Appeal Tribunal found an error of law in the tribunal’s decision, but nevertheless went on to find in favour of the claimants by applying the approach laid down in rolled-up holiday pay cases.

In allowing the appeal, the Court held that the reduction in shift pay was “not the result of BA misapplying the Regulations” and, since employees were paid the same rate for shift pay whether they were at work or on holiday, they were “no worse off as a result of taking holidays”.

Furthermore, the judgment made it explicitly clear that this case was to be distinguished from ‘rolled-up holiday’ cases such as Robinson-Steele v RD Retail Services, since no ‘rolling-up’ had taken place.

Further information is available from: www.bailii.org/ew/cases/EWCA/Civ/2006/537.html

Income Data Services, May 9, 2006

Small companies are losing thousands of pounds a year because of unauthorised staff absences, according to a survey from the Forum of Private Business (FPB).

The FPB’s survey of business owners found that:

• a fifth of respondents put some absenteeism down as unauthorised;
• nearly two thirds of smaller employers have introduced sickness management to reduce absence;
• the most common tools for managing absenteeism from the workplace are restricting paid absences (64.7%), return to work interviews (52.9%) and incentives for good attendance (35.3%).

The FPB believes that sickness absence is one of the most serious obstacles to productivity, profitability and competitiveness and that managing sickness absence and reducing illness and accidents is one of the greatest challenges facing small businesses.

Tim Kind, the FPB’s representative on the Government’s Work and Well-Being National Stakeholder Council, said: “The Government can’t afford to be absent minded when it comes to issues on health and the workplace. Small businesses need to know where to go to get advice from the Government. Government needs to be more responsive to the needs of smaller employers.”

Forum of Private Business press release, May 2006

HM Revenue and Customs has launched the Statutory Paternity Pay Calculator (SPP).

The calculator is designed to help employers work out if they have to pay their employees SPP and if so, how much they will have to pay. The calculator can also help employers to work out how much SPP they can claim back.

To work out how much SPP to pay, employers will need:

• a declaration of family commitment signed by the employee – this can either be form SC3 or your own version of the form;
• to establish whether your employee’s gross annual earnings attract Class 1 National Insurance contributions;
  the date the employee expects tostop work;
• the employee’s gross pay amounts and dates in the set period;
• the date the employee started working for the company.

HMRC said that it has identified a fault that will affect a small percentage of employee’s paid annually and whose annual payment covers more than 365 days and those with an irregular pay pattern. In these cases employers should calculate entitlement manually following the guidance in the Employer Helpbook E15. HMRC said that a fix has been identified and will be implemented shortly.

The calculator can be found at: http://sppbcalculator.inlandrevenue.gov.uk/SPPB01.aspx

www.hmrc.gov.uk, May 3, 2006