Levy & McRae represent one of the owners of Rosepark Nursing Home. Following service of an indictment alleging various breach of Health & Safety law we challenged to competency of the prosecution. Lord Hardie agreed with our challenge and dismissed the indictment insofar as it related to our client

There has been concern for some while at the way the no doubt well intentioned October 2004 statutory dispute resolution procedures are working out in practice, introducing as they do new complexities where none were intended combined with the attendant increase in arguments available for use in tribunal cases.

Lawyers may have benefitted but nevertheless, along with Judges and HR experts, have been complaining for some time about the position. The DTI has taken note and has now announced it is holding a review into options for “simplifying and improving all aspects of employment dispute resolution”.

In December there was a formal announcement that a group is being set up to undertake a “a root and branch review of Government support for resolving disputes in the workplace”. Recommendations for change are to be made in Spring 2007 but in the meantime it is of great importance that employers and employees follow the statutory procedures to the letter when and if they apply. The consequences of not doing so can be draconian – failure to realise when the statutory procedures apply and then failure to follow them to the letter can mean that an employer finds a dismissal for perfectly sensible reasons becomes automatically unfair dismissal and that an employee can forfeit the right to bring a claim altogether.

www.emplaw.co.uk, January 16, 2007

City high-flyer, Andrea Madarassey, has lost her £1 million claim for sex discrimination against Japanese investment bank, Nomura.

Her claim, for sex discrimination and victimisation was lodged in 2001, after she lost her job following her return to work from maternity leave. She alleged that her boss had repeatedly shouted at her when she was pregnant and that her bonus was unfairly reduced, compared to male colleagues, because of her absences due to morning sickness.

The landmark case, one of only a few sex discrimination claims to be heard by the Court of Appeal, will have wide consequences across all claims for discrimination, as it set out unequivocally, the approach which should be taken to the burden of proof. The employee must establish facts from which a tribunal can conclude that discrimination has occurred before the employer can be made to respond with any justification.

Ms Madarassey said: “I am shocked of course. There is something wrong with UK law making it difficult to apply the new European Directive. The burden of proof should be shifted from the woman to the employer to decide whether she has been less favourably treated than a man in the same circumstances.”

Ms Madarassey vowed to take her case to the House of Lords.

Times, January 29, 2007

Small and Medium-sized firms are becoming increasingly dissatisfied with the “skills, productivity and experience” of UK workers and are turning instead to migrant labour, according to a British Chambers of Commerce (BCC) survey.

The BCC study closely follows an Institute of Directors survey in which employers rated migrant workers as more reliable and better skilled than their UK counterparts.
Commenting on the results David Frost, BCC director general, said:

“Migrant workers have helped to fuel the UK economy, but it is troubling that so many employers do not want to employ British workers.

“The UK’s chronic skills shortages must be addressed by the Government, and reform of the school curriculum is needed to ensure that young people enter the workforce with the necessary skills and the right attitude to get on at work.”

Just over a quarter of SMEs employing migrant workers said that they did so due to a shortage of British workers with the requisite skills. Twenty three per cent felt that migrants had a better work ethic, while 17 per cent said they were more productive than UK workers. Just 6 per cent cited lower wage costs as a justification for hiring migrant workers.

Jo Lynch, human resources manager at Thomas Storey Fabrics, said: “The decline in apprenticeships over the past 20 years or so has led to a shortage of skilled workers in the UK. There is also a problem with basic skills in the local labour market.”

Nearly 70 per cent of those questioned by the BCC felt that the Government did not offer enough assistance to employers wishing to recruit overseas workers. Initiatives they would like to see introduced include a telephone adviceline and ID cards for migrants confirming their entitlement to work in the UK.

Financial Times, February 12, 2007

A group of people who lost their pensions when their final salary schemes collapsed are to take their case for compensation to the high court.

Members of the Pensions Action Group are challenging the Government’s decision to refuse the parliamentary ombudsman’s recommendations for compensation following its findings of pension scheme maladministration.

Dr Ros Altmann, adviser to the Pensions Action Group, said: “MPs from all parties are outraged at the Government’s attempts to be judge and jury in its own case and to pretend that it knows better than the ombudsman what constitutes proper standards of administration.

“What is the point of the ombudsman if ministers can simply say they don’t agree with verdicts they don’t like?”, he said.

If the court rules in favour of the Pensions Action Group, the Government could have to pay out hundreds of millions of pounds in compensation to people who lost their pensions when their workplace schemes wound-up.

The judicial review is expected to last two days and it is likely that judgment in the case will be held over to a later date.

BBC News, February 7, 2007

Employers can choose not to employ an overweight candidate, provided there is no underlying medical reason for it, according to law firm DWF.

According to DWF, unlike discrimination on the grounds of race, sex or religion, the law offers no specific protection against ‘fattism”.

However, the firm warned that being overweight is not sufficient grounds to sack an existing employee unless it is affecting their performance.

“You can choose not to employ an overweight candidate, provided there is no underlying medical reason for it, although you should take the precaution of asking all candidates as part of the application process whether they suffer from a disability and whether they would need support or assistance should they be employed,” said Stephen Robinson of DWF. “If you fail to ask these questions, there is a risk that in not employing that candidate, you may be inadvertently discriminating against them.”
He added: “If an employee is underperforming due to excess weight, provided there is no underlying medical reason, you should take them through your capability procedure sensitively, by highlighting how their excess weight has caused a performance issue, its effects on the business and what both employer and employee should do to resolve the issue.”

DWF press release, January 23, 2007

The right to request flexible working should be extended to all employees, the Minister for Children has proposed.

In Politics for a New Generation, a collection of essays by Labour politicians, Beverly Hughes calls for all positions to be advertised as part-time or flexitime unless there is a sound business case not to.

Since the Government introduced the right to request flexible working for parents of children under six in 2003, 22 per cent of employees have requested it and 80 per cent of employers have conceded to their demands. From April this year the right will be extended to a further 2.8 million employees caring for sick or elderly relatives.

However, Ms Hughes’ call to introduce a universal right to request flexible working has, unsurprisingly, raised concerns among business leaders.

Susan Anderson, director of human resources policy at the CBI, said: “Firms must have the time they require to accommodate the varying needs of their staff and it would be foolish to put the continued success of the policy at risk. We must also bear in mind the fact that companies still need to get the job done.”

Stephen Alambritis, from the Federation of Small Businesses, said:

“I think there is a danger of going over the top where the realities of business are ignored. The temperature of this whole debate needs to go down and the current regime tested against a more difficult economic backdrop before we take a step further. The needs of business have got to be respected.”

But Ms Hughes writes: “With more women at work, an ageing population and many people aspiring to volunteer or to further develop their skills, Government and employers need to recognise that balancing work and life is an issue that’s not going away. We need a step change.”

Her sentiments appear to be supported by a survey carried out by Microsoft Windows Mobile which found that nearly half of under-25s would be prepared to jettison a pay rise in favour of more flexible working practices. Alex Reeve, from Microsoft, said: “Work is not a place you go, it is a thing you do. We are looking to support both individuals and businesses as they transcend this tricky phase from office-bound working into the new generation of mobile working.”

Times, February 12, 2007

It is well known, of course, that here in the UK the adult national minimum wage is £5.35 per hour and that that is increased annually, more or less in line with inflation.

It might be surprising to some to note how different the position is in the USA. There the last time the federal minimum wage was increased was 1997. Even now it is still only $5.15 per hour (although some States have higher minimum wages). On 10th January 2007 the House of Representatives voted to increase the current $5.15 to $5.85, then after one year to $6.55 and then after a further year to $7.25. The proposal now goes to the Senate but even then is not certain of success – Republican senators, supported by the President, have hinted that they may filbuster the proposal unless there are compensatory tax cuts for small businesses.

At current exchange rates the proposal equates to an increase in minimum wage from the current approx £2.65 per hour to about £3.75 by 2009/2010.

www.emplaw.co.uk, January 16, 2007

The Government is proposing to increase a worker’s entitlement to statutory paid holidays from 4 weeks to 4.8 weeks per year from October 1 2007 and from 4.8 weeks to 5.6 weeks per year from October 1 2008.

The Government’s proposals will apply to England, Scotland and Wales.

In effect, a worker’s entitlement to a statutory maximum of four weeks’ annual leave will increase to 28 days by making paid leave for bank and public holidays additional to the four week statutory holiday entitlement.

In England and Wales, there are eight public/bank holidays per year.

However, in Northern Ireland (NI), it is being proposed that a worker’s entitlement to a statutory maximum of four weeks’ annual leave will increase to 30 days to reflect the fact that there are 10 public/bank holidays (including St Patrick’s Day and July 12) in NI.

If the Government’s proposals for England, Scotland and Wales are not changed and become law, a Scottish worker will only be entitled to a statutory maximum of 28 days’ annual leave even though nine public and bank holidays (including St Andrew’s Day) are celebrated in Scotland.

Tony Trotman, Employment Law Specialist at Consult GEE

A solicitor had an affair with an employee. He dismissed her when he found she was going out with another man and she brought a sex discrimination claim. Was this unlawful sex discrimination? What do you think? Any reader who says “yes” is in good company as the employee won at the employment tribunal. However the solicitor appealed.

The EAT held that the tribunal had got it wrong, the reason being that it applied the wrong test. The EAT said that a comparator should have been constructed but was not. If the people involved had been male homosexuals the solicitor would, in similar circumstances, have treated his lover in exactly the same way. Therefore the dismissal could not have been sex discrimination as by definition that involves a woman (or man) being treated worse than a person of the other sex was or would have been treated. The dismissal in this case occurred because of jealousy and relationship breakdown not because of sex discrimination.

For those interested in working through the logic, the point of principle is that the original tribunal wrongly applied a “but for” test. It is true that the dismissal would never have happened “but for” the fact that the employee was a woman but, contrary to the tribunal’s view, that did not make it sex discrimination. The employee concerned later brought an unfair dismissal claim which she did win.

www.emplaw.co.uk, January 16, 2007

A large payout for workplace stress has been upheld by the Court of Appeal in a move that could force employers to pay more attention to employees’ mental health.

Tracy Daw, who worked for chipmaker Intel for almost 13 years, was awarded £134,545 damages last year after suffering a nervous breakdown which she said was brought on by pressure at work. She claimed her employer had failed to respond to her repeated concerns about her heavy workload and blurred reporting lines.

The High Court judge who made the award ruled that the demands her employer had made on her were “totally unreasonable” and the risk to her health had been clear. The High Court’s findings over Intel’s liability and the size of the award were yesterday backed by the Court of Appeal which ruled that the judge “was fully entitled to hold that it was a failure of management, which created the stresses and led to the breakdown”.

Intel had attempted to deny liability by arguing that its employees had access to a counselling service and medical assistance and, had Ms Daw used these, the extent of her problem would have become clear. The Court of Appeal rejected this argument saying counselling services were not a “panacea” that allow employers to discharge their duty of care to employees.

Financial Times, February 8, 2007

The UK’s largest childcare agency is in dispute with the Information Commissioner after being made to reveal the content of an employment reference.

The matter arose after the agency, Tinies, rejected a job applicant on the basis of their reference. The candidate, who had already been rejected for several positions then applied to the commissioner to compel the agency to disclose the reference.

Tinies, which is considering a legal challenge to the ruling, argues that disclosure policy could prevent employers from making honest assessments of employees. “We are talking about the most important job possible here – looking after children,” Ben Black, director of Tinies, said. “There is a real danger that the wrong people could slip through the net because the references do not paint a full picture.”

However, a spokesperson for the Information Commissioner explained that individuals had a right, under the Data Protection Act, to access the information a company holds on them. “This includes the right to request a copy of references provided by their previous employer,” he said. “The Act does not prevent employers from giving honest and open references.”

Angela Baron, CIPD adviser, organisation and resorting, backed the Information Commissioner’s decision: “I would really question the value of any job reference where the writer does not want the individual to see what is written,” she said. “We would hope that any issues raised in the reference would have been raised during the period of employment, so the reference should not come as a shock.”

She also warned employers not to include information in a reference that they were unable to back up: “Our advice to employers is not to include anything in a reference that you can’t back up with evidence – subjective opinions are notoriously unreliable and not a good idea.”

CIPD press release, February 7, 2007

The Royal Bank of Scotland has won its appeal against an employment tribunal decision that it unfairly dismissed a long serving employee (of some 20 year standing) who took sick leave because of a stress-related illness.

The Tribunal had held that the dismissal was unfair simply because the illness had been caused by the employer’s unreasonable behaviour. The EAT held that this was an error of law – if that were the law it would mean that in such cases employers would be obliged to retain indefinitely employees who were incapable of any useful work. The proper approach is to decide whether dismissal was or was not within the range of reasonable responses open to the employer in all the circumstances – which of course include its responsibility for the incapability.

www.emplaw.co.uk, December 7, 2006