On the weekend of 22nd to 24th June, Levy & McRae hosted the Legal Netlink Alliance Conference at the Old Course Hotel in St Andrews. Lord Gill, the Lord Justice Clerk, joined representatives from 15 countries to discuss changes to civil law, while Charles Wilson, the former editor of the Times and the Independent, led discussions on the law and the media.

Unions and leading voluntary groups have joined forces to urge Gordon Brown to introduce an additional public holiday in October.

The Trades Union Congress, the National Council for Voluntary Organisations, Community Service Volunteers, Volunteering England and the National Association for Voluntary and Community Action have made the call in a letter to Gordon Brown and other politicians.

They say the extra day could be used to encourage people to volunteer and get involved with community groups and activities as well as helping to fill Britain’s public holiday deficit – the UK currently has three fewer days off than the EU average. The groups suggest the best time for the extra holiday would be the end of October coinciding with the normal half term break and in the middle of the longest current gap between bank holidays.

TUC general secretary Brendan Barber said: “This is an idea whose time has come. It ticks all the right boxes. It will encourage more community involvement, celebrate our shared values as a nation, and help meet the holiday gap between Britain and the rest of Europe, but in a constructive way. It’s a great opportunity for a new Prime Minister to make a mark in history.”

TUC press release, May 25, 2007

Employees are engaging in risky online behaviour at work by downloading music or pornography and gossiping over email, a new study shows.

The Trust and Risk in the Workplace Study examined the office internet habits of employees in the UK, Holland, Australia, the United States and Singapore. It found that 31 per cent of men and 19 per cent of women had downloaded music at work, while nine per cent of men and four per cent of women had accessed obscene material.

However, the risky habits of UK workers were largely email driven with 35 per cent of female employees and 33 per cent of their male colleagues admitting to gossiping or passing on confidential information via email.

Dr Monica Whitty, of Queen’s University Belfast, who led the research warned that workers are placing their employers networks at risk with their behaviour.

“Almost two thirds of our sample would blame their employer if confidential data was stolen from their work computers,” she said.

“Given that security breaches and careless mistakes can lead to the loss or theft of confidential information, employers should be cautious when it comes to protecting confidential data” she added.

Daily Telegraph, June 6, 2007

At the start of National Temporary Workers Week, employers are being urged to invest more time in integrating temporary employees into their workforce in order to take full advantage of their skills and experience.

Investors in People (IiP) highlights that temporary employees can feel detached from their employer due to a lack of clarity about what is expected of them, their role and how this is related to the company’s goals.

Simon Jones, acting chief executive at IiP, said: “Temporary workers can bring a wide range of skills and experience to an organisation, but all too often employers view them simply as a short-term solution to a resourcing problem. Whilst this can be demotivating for the individual, it is also a wasted opportunity for the employer.

“Getting the most from temporary workers requires employers to think ahead and invest time in planning the role. As with any other employees, you have to set clear goals and create support systems that will help temporary workers give of their best. Without this, employers hinder the contribution that these workers can make in support of business goals.”

IiP recommends a number of steps to help integrate temporary workers from planning inductions to specific tactical measures such as a whistle-stop tour of company principles, standards and key“dos and don’ts”.

Investors in People, June 4, 2007

It is not unusual in disability discrimination cases for an employer and employee to agree jointly to commission a single medical expert to prepare a medical report.

Clearly if the employee is not satisfied with the report he or she can get another as it is he or she who will have to be re-examined. But if the employer is not satisfied the position is more tricky. The employee may well refuse to cooperate, saying that one examination is enough and as it was jointly commissioned the employer must accept it.

The EAT has confirmed that in that situation an employment tribunal can give its support to the employer’s request for a second medical report by a different medical expert but should do so only if the employer has more than a “fanciful reason” for wanting its own separate expert medical report. In particular the EAT has recently rejected an employee’s argument that as there is no requirement under the Disability Discrimination Act for the cause of an impairment to be established therefore it would be wrong to require a second examination.

www.emplaw.co.uk, June 7, 2007

The House of Lords has refused to hear a sex discrimination case brought by a former employee of Nomura investment bank.

Andrea Madarassy has been locked in a legal battle with her former employer for more than six years over claims of sex discrimination, unfair dismissal and victimisation following the onset of her third pregnancy.

The case is thought to be important in clarifying where the burden of proof lies in discrimination claims against employers and could affect thousand of similar disputes. Ms Madarassy argued that once she had established she was treated differently to her co-workers, the onus was on Nomura to prove she was treated fairly.

The Court of Appeal rejected this argument in January, stating that employees must back their claims with more substantial evidence from which an employment tribunal could reasonably conclude that they had been discriminated against.

As the Law Lords refused to take on Ms Madarassy’s case, the Court of Appeal ruling remains in place. A tribunal is still scheduled to consider some elements of her claim including whether Nomura had failed to conduct a proper health and safety assessment of her pregnancy and whether she was informed during her maternity leave of a redundancy plan at the firm.

Bloomberg, May 21, 2007

Current law provides entitlement to two weeks’ paternity leave and to statutory paternity pay during that leave, paid by employers but refunded by the State.

The Work and Families Act 2006 provides for this to be extended. On 14th May 2007 the DTI issued a (second) consultation document discussing the new additional paternity leave (“APL”) and additional paternity pay proposals. No date has yet been fixed for start of the new regime but the consultation document says it will not apply in relation to children born before 5th April 2009.

In essence the proposals are simple. Employed fathers will be entitled to up to 26 weeks paternity leave, with statutory paternity pay, during the second six months of their new baby’s life provided they meet the 26 weeks continuous employment and other eligibility requirements. Partners and members of adopting couples will be eligible, including females – rather bizarrely as this is “paternity” leave.

However, it is inevitable that the detail will be complicated. The full details are not yet known but, for example, it will be necessary to deal with the problem of whether an applicant really is a father, especially if he is not married. This problem will be partially dealt by making it a condition of APL that both the mother and father must sign an appropriate self-certification form and provide it to the father’s employer not less than eight weeks before the start of the APL.

It seems clear that in spite of its name additional paternity leave has more to do with mothers than fathers. It seems that a main purpose is not to give fathers the right to additional leave but to make it easier for mothers to return to work before the end of their entitlement to maternity leave, recently extended to 12 months. This is evident from the fact that the right to APL will be available only if the mother is a working mother who returns to work. If she is not a working mother there is no right to APL. This is a major difference from the statutory right to the basic two weeks paternity leave to which most employed fathers have been entitled since 2003, which is expected to continue and which does not depend on the mother being a working mother.

www.emplaw.co.uk, June 7, 2007

Migrant workers have won a boost to their employment rights after the Employment Appeal Tribunal ruled that a group of Polish nationals could be classed as “employees” of an agency that had sent them to work in the food-processing industry.

The workers, sent to work at West Country Foods, complained that they had been dismissed after they tried to join the Transport & General Workers’ Union. They alleged that they were denied notice pay, in breach of contract, and that there had been unlawful deductions from their wages. In order to pursue these claims the Polish migrants had to be classed as “employees” rather than “workers”.

Mr Justice Elias ruled in favour of the Polish workers, saying it was a case where “the nature of the relationship justified a finding that there was a contract of employment between the agency and the workers”.

The Tribunal ruled that a document given to the workers headed “Being Self-Employed” was provided after agency contracts had been signed and that it could not be treated as amending the contracts themselves.

Oliver Segal, of Old Square Chambers, acting for the workers, said: “The case is important in establishing that migrant workers may indeed be treated by courts as employees of an agency, even where day-to-day control of their work is exercised by the agency’s clients – the hotels and factories – and even when agencies’ contracts with workers try to disguise this employee relationship.”

The workers claims will now go forward to be determined on their merits.

The T&G section of Unite said that the case, Kalwak & others v Consistent, will have important implications for thousands of agency workers and the agencies who employ them. Tony Woodley of Unite, said: “This judgment is an unequivocal statement on the employment rights of agency workers.

“There are thousands and thousands of workers across Britain who are subject to appalling treatment because of agency exploitation of their vulnerability, and this judgment has blown their so-called‘self-employed’ status out of the water.”

Financial Times and Unite, May 21, 2007

Rogue employers will face a prison sentence and/or an unlimited fine if found knowingly employing illegal workers, under Home Office plans.

The new measures, which will take effect early next year, are part of the Home Office’s Illegal Working Action Plan which is designed to crackdown on bogus employees.

Key parts of the Action Plan include:

• an employee checking service which is intended to improve the support offered to employers;
• penalties for employers who employ illegal migrants as a result of negligent recruitment and a new criminal offence for those found to be knowingly employing illegal workers;
• a sponsorship scheme designed to ensure that employers take responsibility for whether their workers comply with immigration rules.

Announcing the measures, Immigration Minister Liam Byrne said: “To combat illegal immigration it is not enough to stop illegal journeys. We have to close down the illegal jobs that tempt people to try their luck coming to Britain.

“That means making it easier for companies to check whether someone is here legally – but also coming down much harder on businesses which break the rules or turn a blind eye.”

Marcia Roberts, chief executive of the Recruitment and Employment Confederation, welcomed planned changes to the recruitment process.

“The move towards providing recruitment agencies and employers with specific information on their immigration enquiries is a great leap forward,” she said. “To date recruiters have been intensive users of the Home Office’s Employers’ Helpline and the new Employers’ Checking Service will undoubtedly help recruiters to make the right decision when it comes to ensuring that candidates have the right to work in the UK.”

A consultation on the implementation of new powers to prevent illegal migrant working in the UK can be found at: www.bia.homeoffice.gov.uk/aboutus/newsarchive/rougeemployers

Home Office press release, May 15, 2007

Stress and depression together make up the second largest cause of sickness absence in the UK, a report by the Chartered Institute of Personnel and Development (CIPD) has found.

The poll of 30,000 employees found that those suffering from depression took an average of 30 days sick leave while stress sufferers were off for 21 days.

Employees taking time off due to mental health issues were outnumbered only by those suffering from musculoskeletal disorders.

Ben Wilmott, CIPD employee relations advisor, said: “This research shows how important it is for managers and HR practitioners to be aware of the signs of mental ill-health so that they can take action early and provide support before the individual’s condition deteriorates to the point that they go off on long-term sick leave.

“However, the Government also has a role to play in finding ways to help and encourage more employers to provide their staff with access to cost-effective occupational health services.

John Maclean, the GMB’s health and safety advisor, said: “It’s a growing phenomenon. Pressure is often too high because a job needs to be done but there is only a skeleton staff.

“Employees are expected to take on extra work without extra resources. Sometimes bonuses are unachievable and sometimes targets are too high.”

Daily Telegraph, June 4, 2007

Three quarters of small firms have yet to put in place procedures allowing employees to work beyond 65, a new study shows.

A survey by Lloyds TSB Business found that, despite the introduction of new age laws last October, just 25 per cent of small business owners had put in place the ‘right to request’ rules for employees which enable them to work past 65.

Half of those surveyed said that they were unsure whether they would implement the new procedures while a third said they were intending to do so.

Forty per cent of those holding back from introducing the new rules cited the additional red tape and extra costs the changes would entail.

Despite their apparent reluctance to encourage older workers to stay on, over a third of those questioned predicted a drop in the number of younger workers at their organisation over the next decade. And most employers admitted that the skills and competencies of older workers were equal, if not superior, to younger employees.

Stephen Pegge, head of communications, Lloyds TSB Business, said: “Older workers clearly have everything to offer businesses in terms of their skills and knowledge and as this study demonstrates, employers do recognise these strengths.

“Given their positive attitudes to the contribution made by older workers, it is surprising that so many small firms are still undecided about whether to allow their staff to work beyond 65. Potential costs are one of the reasons given by some firms which have not yet established systems to allow their staff to carry on working, but it’s important that all businesses create an environment where older workers are encouraged.”

Lloyds TSB Business, May 30, 2007

An EAT case in March 2007 provides a warning to employers about what can happen if an employee fails to return to work after sick leave.

If the employee has recovered and the employer takes no action there is a danger that he may face an unfair dismissal claim if he later dismisses the employee. To prevent this possibility the employer should as soon as possible after becoming aware that the employee has recovered and has not returned to work inform him that his continued absence will be treated as “repudiation” of his employment contract.

In the case in question the employer had failed to do this. Later, the employee, who had still not returned to work, was formally dismissed and claimed unfair dismissal. The employer argued that there could have been no real dismissal at all, let alone unfair dismissal, because by failing to return to work after recovering from his sickness the employee had repudiated his employment contract. The EAT disagreed. It is settled law that repudiation of a contract is only effective when accepted by the other party, so it followed that the contract had continued to exist until the formal dismissal. The employer had never formally accepted the repudiation so the EAT ruled that the contract had continued and the employee was entitled to proceed with his claim for unfair dismissal. The EAT remitted the case back to an employment tribunal for hearing on the merits.

www.emplaw.co.uk, May 1, 2007