A Hindu employee sacked for wearing a nose stud as a religious symbol has been reinstated.

Amrit Lalji worked in the VIP lounge at Heathrow airport for a year before being asked to remove the stud on health and safety grounds. When she refused, explaining that the piercing had religious significance, she was fired.

Explaining her reinstatement, her employers Eurest said that it had since discovered that “the rules on facial piercing are mandatory only in catering operations”.

“Though this is not clear in the handbook, which is given to all employees, it is specific in the text of the Company’s HR Directory, which is the primary source policy document,” a spokesman said. “Since Mrs Lalji is not engaged in catering, her dismissal resulted from a misunderstanding of the rules and is therefore unjustified.”

Telegraph, October 5, 2007

City law firm Freshfields has won its high-profile age discrimination battle against former partner Peter Bloxham.

The case had centred on alleged unfairness stemming from changes to the firm’s pension arrangements.

Mr Bloxham, the firm’s former restructuring head, had alleged that Freshfields discriminated against him on the basis of age when it introduced a new, less generous pension scheme. He claimed that the firm forced him to retire, affecting his entitlements.

Although the Central London Employment Tribunal found that Freshfields had been discriminatory on the grounds of age when the new pension provisions were first introduced, it said that the firm had been balanced in its approach when making the changes.

The tribunal went on to rule that Freshfields’ action was justified because the law firm was pursuing a legitimate aim by proportionate means. That justification test was “not merely met but was comfortably passed” by the law firm.

Mr Bloxham’s case was the first high-profile ageism case to be considered by a tribunal since the new laws banning discrimination on age grounds came into force a year ago.

Ronnie Rox, an employment and partnership law specialist, commented: “The real value of this judgement is in relation to the guidance on what constitutes a proportionate means of achieving a legitimate aim.”

In a statement Freshfields said: “It is a pity that this mis-guided claim was ever brought to the tribunal. We are pleased that the tribunal has recognised that both the reforms to our partner pension scheme and the procedures through which they were adopted, were fair.”

Mr Bloxham was unavailable for comment.

Financial Times, October 11, 2007

The minimum wage increases from 1st October 2007 are as follows:

• the adult National Minimum Wage is increased from the previous £5.35 to £5.52;
• for 18-21 year olds the increase is from £4.45 to £4.60; and
• for 16-17 year olds the increase is from £3.30 to £3.40.

Also with effect from 1st October 2007 three new classes of persons are added to those who do not qualify for the national minimum wage, namely (i) persons doing work experience as part of a further education course; (ii) workers participating in the latest phase of the Leonardo da Vinci Programme (an EC scheme providing participants with vocational training); and (iii) workers participating in the EC Youth in Action Programme.

There are separate provisions for Agricultural Workers. The standard adult minimum wage for agricultural workers (Grade 2) rises from £5.74 to £6.00 per hour.

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

Since 6th April 2003 parents and certain others who are responsible for looking after children aged under 6 (or under 18 if the child is disabled) have had the legal right to ensure that requests they make for flexible working arrangements are taken seriously by their employers. Typically flexible working arrangements include part-time working or working from home.

Earlier this year (6th April 2007), the right was extended to employees with responsibility for caring for (i) spouses/ partners (ii) adult relatives and (iii) adults living at the same address as the employee.

As from 1st October 2007 it is further extended so that private foster carers (and their spouses and partners) are added to the list of people who are entitled to request a contract variation to care for a child.

A person in whose favour a residence order is in force in respect of a child (and their spouses and partners) are also added to the list.

The October 2007 changes are set out in the Flexible Working (Eligibility,  Complaints and Remedies) (Amendment) (No. 2)

Regulations 2007, SI 2007/2286.

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

Employment relations service Acas has launched a new guide to help employers introduce the changes to holiday allowance which took effect on October 1.

Statutory holiday entitlement increased to 4.8 weeks (24 days for a five day working week) from October 1, 2007 and to 5.6 weeks (28 days for a five day working week) from April 1, 2009. The changes mean that employers may have to take some of the following actions:

• recalculate new entitlement for part-time and full-time employees;
• inform all employees in writing of the increased entitlement;
• ensure that all new written statements of employment feature the updated holiday and holiday pay  entitlements.

Acas director David Prince commented: “With recent changes to holiday entitlement coming into play, this new guide will help employees calculate what they are entitled to and will help employers understand precisely what they should be providing.

“This will ensure that workers make the most of their holiday entitlement and help businesses – particularly smaller ones – plan effectively for periods when employees are away.”

Copies of the Acas guide, which offers advice on holiday rights for full and part-time workers and guidance on how to calculate holiday pay, are available from:

www.acas.org.uk

Acas press release, October 3, 2007

Ageism remains rife in the workplace, a year on from the introduction of anti-age discrimination legislation, a
new report claims.

The study, by the Employers’ Forum on Age (EFA), found that nearly 60 per cent of employees had witnessed ageist behaviour in the past 12 months. A third of those questioned knew of an older person being paid more than someone younger for doing the same job, while over a quarter said they were aware of employers hiring people of a similar age to the rest of the team to ensure a “good fit”.

According to the EFA age discrimination claims are now being lodged at the rate of 200 a month.

Sam Mercer, chief executive of the Employers’ Forum on Age, said: “Age discrimination laws have been in effect for one year, and good progress has been made in some areas. However, ageist attitudes are still ingrained and changing that culture is a much bigger task, but one which cannot be avoided.”

The survey also revealed wildly differing attitudes between employers and employees towards retirement. While 92 per cent of people felt they should be allowed to work for as long as they were able, 21 per cent said their employers would enforce a mandatory retirement age of 65.

“This disparity between employees’ expectations and the flexibility employers are prepared to offer will inevitably lead to tension,” said Ms Mercer “It is time for employers to think seriously about following in the footsteps of some leading EFA members and removing mandatory retirement ages”.

Guardian, September 28, 2007

UK employers are failing to recognise and respond to the threat posed to their businesses by workplace disputes in spite of new findings that suggest that the cost of such disputes has increased to some £33bn a year, the law firm Nabarro has warned.

It is thought that disputes with employees, customers and suppliers cost the average UK company around 350 days of management time each year, even before the direct cost of employment tribunals is taken into consideration.

A survey of 100 firms conducted by Nabarro found that most managers were concerned by the threat of reputational damage and the impact on employee morale associated with workplace disputes; however, while the majority of firms had risk-management policies in place, only a third of these addressed the issue of dispute resolution. Only 51 per cent provided their senior managers with training in dispute avoidance and resolution.

“Disputes, in one form or another, are inevitable,” commented Nabarro employment dispute resolution partner Susan Gordon. “It is therefore important to have an effective risk-management policy in place to protect your organisation and employees.

“This should include clear, practical dispute management procedures, and comprehensive training for employees. Not only should this help to minimise the risk of disputes arising, but it should also provide a framework for dealing with them when they do occur.

“Disputes with employees, whether claims by the employee such as unfair dismissal or discrimination or litigation against a former employee such as for breach of restrictive covenants, not only divert attention from the core business, but can also have a very destabilising effect on other employees.”

Management Issues, October 2, 2007

In general the new statutory rules on directors’ duties in effect from 1st October 2007 codify, but are not intended to change, the law established by the courts over many years concerning the duties of company directors.

The only change is in an exception provision concerning conflicts of interest and authorisation of matters which involve such a conflict.

The official guidance notes set out the duties of a company director as being to:

• Act in the company’s best interests, taking everything you think relevant into account
• Obey the company’s constitution and decisions taken under it
• Be honest, and remember that the company’s property belongs to it and not to you or to its shareholders
• Be diligent, careful and well informed about the company’s affairs. If you have any special skills or experience, use them
• Make sure the company keeps records of your decisions
• Remember that you remain responsible for the work you give to others
• Avoid situations where your interests conflict with those of the company. When in doubt disclose potential conflicts quickly
• Seek external advice where necessary, particularly if the company is in financial difficulty

It is worth noting that it continues to be a criminal offence for a company to fail to keep at least a written memorandum of every director’s service contract, even if the director is the only shareholder

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

Under law in force until 1st October 2007 almost every worker has had the right to four weeks paid holiday per year, or proportionally for part of a year – so, for example, a full time worker who worked 5 days a week for a full year was entitled to a minimum of 20 days paid holiday per year and a worker who worked 3 days a week for a full year was entitled to 12 days paid holiday per year.

There was, and is, no statutory right to bank or public holidays, with or without pay. In 2005 the government announced plans to change this but in the event replaced those plans with a proposal to increase the normal statutory annual holiday entitlement. The increase for full timers is to 28 working days, pro rata for part timers, phased in over 18 months from 1st October 2007. The precise detail of the phase-in is quite complicated as it depends on the date on which a worker’s leave year begins.

We set out below the formulae for the phase in period appropriate for a worker whose leave year begins on 1st January and who is employed for the full year.

• For 2007, multiply the number of days per week worked by 4.2 (ie 22 days for a full time worker);

• For 2008, multiply the number of days per week worked by 4.8 (ie 24 days for a full time worker);

In general the new statutory rules on directors’ duties in effect from 1st October 2007 codify, but are not intended to change, the law established by the courts over many years concerning the duties of company directors.

The only change is in an exception provision concerning conflicts of interest and authorisation of matters which involve such a conflict.

The official guidance notes set out the duties of a company director as being to:

• Act in the company’s best interests, taking everything you think relevant into account

• Obey the company’s constitution and decisions taken under it

• Be honest, and remember that the company’s property belongs to it and not to you or to its shareholders

• For 2009, multiply the number of days per week worked by 5.4 (ie 27 days for a full time worker);

• For 2010 and thereafter, multiply the number of days per week worked by 5.6 (ie 28 days for a full time worker).

The new rules include a provision releasing employers from the obligation to comply if and for so long as under the terms of a “relevant agreement” (in effect any enforceable written agreement) in operation at 1st October 2007 they already provide at least 28 days’ annual leave – pro rata for those working part time. This will usually ensure that a worker who is already contractually entitled to time off for bank and/or public holidays will not also be entitled to the new statutory increase in holiday entitlement – “usually” as certain conditions must be fulfilled, notably that the “relevant agreement” must not allow commutation of the holiday for cash.

As the new holiday right exceeds the minimum required by EC rules under the Working Time Directive, the excess does not have to comply with those rules. One result is that, subject to strict limits, the excess can be carried forward and another is that there are some minor exemptions to the rules which forbid commutation of holiday for cash.

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

A test case which could affect the rights of thousands of employees who care for disabled people was due to be heard in the European Court of Justice on October 9.

The case is being taken by Sharon Coleman, the main carer for her son who suffers from a congenital breathing disorder. Ms Coleman claims that she was prevented from returning to her old position after maternity leave, was denied the same flexibility as parents of non-disabled children and was subjected to abusive remarks at work.

The UK ban on disability discrimination at work was brought in to comply with an EU directive outlawing discrimination “on grounds of disability”, however, the UK legislation refer specifically to discrimination “against a disabled person”.

Ms Coleman’s case was referred to the ECJ by an employment tribunal which asked the European court to decide
whether the EU directive banning disability discrimination at work includes a ban on discriminating against someone because of their association with a disabled person.

If the ECJ rules in favour of the wider interpretation, the tribunal will go on to  decide whether existing UK law can be interpreted to include such cases. The case could also have a knock-on effect on UK age discrimination legislation where the wording also differs from the EU directive.

Guardian, October 8

On Monday, 10 September, the TUC Congress Acas Chair, Rita Donaghy, called for a significant change to the current procedures for resolving employment disputes and emphasised the need to tackle disputes at the earliest stage.

Opening the discussions at the Acas fringe meeting, Rita Donaghy highlighted the need for a new system and welcomed the opportunity to discuss what this should be and how it might work. Key speakers in UK employment relations, including Pat McFadden, Minister of State for Employment Relations and Postal Affairs, debated possible approaches and the way forward for the new dispute resolution procedures.

Ms Donaghy said: “Getting the balance right of protecting and treating workers fairly as well as encouraging employers to have clear procedures is vital. This is a great opportunity to debate the way forward for resolving workplace disputes and to be a part of shaping the new system. Acas’ current guidance is the obvious building block for preventing disputes happening in the first place through good employment relations.

“Prevention really is better than cure, and with the average employment tribunal claim costing £9k it’s also much cheaper. Every opportunity should be given to resolve disputes in the workplace before resorting to court action. Where this is not possible, the system must allow for a quick, effective resolution that is fair to all parties. We understand that the government is due to give its formal response to the Gibbons consultation shortly and we look forward to working closely to make it a success.”

Acas has over 30 years’ expertise in good employment practice.

Acas, September 11, 2007