A document outlining the benefits for employees who use taxis paid for by their employers for a journey from work to home has been published by HM Revenue and Customs (HMRC).

HMRC said that there are four late working conditions, all of which must be satisfied:

• the employee is required to work later than usual and until at least 9pm;

• this occurs irregularly;

• by the time the employee ceases work – either public transport has ceased, or it would not be reasonable to expect the employee to use public transport;

• the transport is by taxi or similar road transport.

In its document HMRC said that, as with any benefit or expense provision, employers who provide late night taxis home for their staff must be able to show that they have treated the provision correctly for the purposes of tax and NICs.

HMRC said that it is not sufficient for an employer to have a published protocol setting out the circumstances in which an employee can have access to the use of a late night taxi if nothing is done to ensure that is applied correctly.

Copies of HMRC’s document about late night taxis can be downloaded from: www.hmrc.gov.uk/manuals/eimanual21831.htm

HM Revenue and Customs press release, January 8, 2007

A British Airways worker who claimed that her employer’s uniform policy discriminated against Christians has lost her case at an employment tribunal this week.

Nadia Eweida, 56, said that her manager at BA had barred her from wearing a crucifix, in line with the airline’s policy of forbidding workers to display religious symbols. Ms Eweida contended that this policy was discriminatory; this week, however, a tribunal in Reading found that Ms Eweida had not suffered treatment less favourable than that experienced by other workers in comparable positions, and rejected her claim.

BA said that it was “pleased” by the ruling. The firm has revised its uniform guidelines in the wake of the case and now permits a limited number of religious symbols to be worn by staff.

Ms Eweida, who turned down an offer of £8,500 from BA to settle the case out of court, described herself as “speechless” following the tribunal’s verdict.

Guardian, January 9, 2007

Employers who trawl social networking sites for information on job applicants could be breaking the law, an internet expert has warned.

The rise of websites such as Myspace and Facebook has led to some companies using the information contained in personal profiles to vet potential employees. However, John Carr, chair of the UK Children’s Coalition on Internet Safety, said that using such sites to research applicants was “possibly illegal but certainly unethical”.

“There’s a basic law of data protection that if you are processing data, you are only allowed to use it for the purpose for which it was intended.

“It’s a bit like reading somebody’s diary. If you are not part of that person’s circle, to look at their stuff and then go to use it to make important decisions on their life, just seems wrong and possibly illegal,” he said.

A spokeswoman for the Information Commissioners Office said that simply viewing someone’s profile on a social networking site would not constitute a breach of data protection. But employment law specialist Claire Murray warned that if the information gained was stored without consent or used to make discriminatory decisions, such as refusing a job on the grounds of race, gender or sexuality, then it could be illegal.

Daily Telegraph, November 28, 2007

The High Court has ruled that employers must include annual leave and bank holidays when calculating how much pay to deduct for strike action, following a test case brought by UNISON.

UNISON won the ‘breakthrough’ legal case over how much money employers can deduct from strikers’ pay.

It brought the test case, Cooper v Isleof Wight College, following strike action in  March 2006 to protect members’ pension rights. The decision means that the Isle of Wight College should have deducted only 1/260th of the annual salary of a striker for the one-day strike, not 1/228th.
UNISON has consistently argued that the correct method of deducting salaries during strike action is to deduct the weekend and other non-working days, but not annual leave or bank holidays, thus resulting in the 1/260th figure.

UNISON’s general secretary, David Prentis, said: “The amount of money may seem small but the principle of the case is much bigger.

“The strike action last year was to defend pension rights and it involved 30,000 members in the further education sector. On the advice of the Association of Colleges, many colleges used an unfair formula and took more money than they were entitled to.

“The ruling makes it clear that employers will fall foul of the law if they fail to include annual leave and bank holidays in their calculations.”

The ruling has implications for all employers making deductions from the wages of employees taking strike action

UNISON, December 2007

The CIPD has backed the Government’s point-based system for managing migration, due to be introduced next year.

In written evidence to a House of Lords Select Committee inquiry on the economic impact of migration, the CIPD concludes that, while the recent high level of immigration has benefited UK employers and the economy as a whole, there have been “losers as well as winners”.

CIPD chief economist John Philpott said: “The recent high level of immigration to the UK is a mixed blessing. Employers have gained and there has been a clear positive economic impact. But there are costs as well as benefits, losers as well as winners. The losers are mostly young and less skilled non-migrants, often from the UK’s most disadvantaged ethnic minorities, ironically the descendants of earlier waves of immigration.”

He continued: “The acid test of any policy for managing migration is that it meets reasonable and legitimate employer need without detriment to the common good. The forthcoming points-based system seems to strike the right balance.

“In the long run, however, the best way to minimise the cost of immigration is to improve the employability of our least able people. But in doing so the Government should avoid talk of ‘British jobs for British workers’ which runs the risk of being heard as a political ‘dog whistle’ by some of the worst elements in our society.”

CIPD press release, November 30, 2007

EU ministers have failed to reach agreement on legislation that would provide new rights for agency workers.

The proposed Agency Workers Directive, which would equip temporary employees with similar rights to permanent staff, had won the backing of most EU Members States. But the UK blocked the legislation claiming that it would hit the country’s flexible labour market and damage job creation. EU ministers also failed to reach agreement on the conditions for an opt-out from the 48 hour maximum working weekunder the Working Time Directive.
Business Secretary John Hutton said: “This is a litmus test of Europe’s ability to balance the legitimate need for employment security, which we clearly accept, with the case for Europe to be as effective and competitive as it possibly can.”

John Cridland, deputy director general of the Confederation of British Industry, backed the Government’s stance. “Hundreds of thousands of people prefer to work on a project-by-project basis while employers depend on access to this pool of flexible labour so they can respond to the ebbs and flows of the economy,” he said.

But TUC general secretary Brendan Barber described the outcome as a “bad day for rights at work”.

“Contrary to business scare-mongering, this Directive would not stop agencies providing temporary staff to employers who need them. What it would have done was both make it more difficult for employers to undercut wages and conditions and help slow the growth of a two-tier workforce.” he said.

The Directive will be discussed again in 2008.

BBC News December 5, 2007

The Government’s intention to abolish the statutory procedures has been confirmed by the publication of the Employment Bill.

However, after the abolition of the statutory procedures, where an employee has been unfairly dismissed and the employer has unreasonably failed to follow the ACAS code of practice on disciplinary and grievance procedures – the employer may pay an increased compensatory award for the unfair dismissal of up to 25 per cent.

Similarly, where an employee has unreasonably failed to follow the code of practice – they may receive a reduced compensatory award for their  unfair dismissal of up to 25 per cent.

The Employment Bill also indicates that s.98A of the Employment Rights Act 1996 will be repealed and therefore, the Government has decided to revert to the rules concerning the procedural fairness of a dismissal that applied before October 1, 2004 as dictated by theHouse of Lords’ judgment in the case of Polkeyv AE Dayton Services Ltd [1987] IRLR 503.
In that case, the House of Lords ruled that any procedural shortfall concerning the manner of carrying out a dismissal would be likely to make the dismissal unfair.

Where a dismissal was unfair due to such a procedural shortfall and the employer showed that the employee would still have been dismissed if a fair procedure had been followed, an employment tribunal could make an appropriate deduction from the compensatory award for the employee’s unfair dismissal to reflect the chance of their inevitable dismissal.

Tony Trotman, Employment Law Specialist at Consult GEE, December 10, 2007

The EAT has published the judgment in Johns v Solent SD Ltd, the case  which led to all claims relating to compulsory retirement under the Employment Equality (Age)Regulations 2006 being stayed  pending the outcome of the Heyday challenge in the ECJ.

Finding that an employment judge had erred in ruling that J’s claim stood little prospect of success and should therefore be struck out, the EAT held that it was inappropriate to pre-judge Heyday, with the result that the claim should be stayed until the ECJ hands down judgment (likely to be in 2009).

J was subjected to compulsory retirement in March 2007, at which point she had reached the age of 71. She brought a claim of unfair dismissal and unlawful age discrimination, which SSD Ltd sought to have struck out.

The employment judge (then known as a tribunal chairman) noted that Reg 30  of the Age Regulations and S.98ZG of the Employment Rights Act 1996 effectively  permit forced retirement of anyone who has reached the age of 65. The prospects of success therefore entirely depended on a favourable outcome for J in Heyday, which SSD argued was unlikely following the Advocate General’s Opinion in Palaciosde la Villa v Cortefiel Servicios SA. Given that the opinion suggested domestic laws allowing for compulsory retirement over a certain age were compatible with EC law, the employment judge took the view that J’s claim was by no means certain to succeed and struck it out.

Allowing the appeal, the EAT held that the employment judge had fallen into error in his approach to the question of the  strike-out. He had not balanced the relative prejudice to each party in deciding to make the order to strike out, and should not have speculated as to what the ECJ might ultimately decide in Heyday.

There was a substantial prejudice to J in striking out the claim, and though there was a prejudice to SSD this did not arise as a result of any decision in the case but as a result of the Heyday reference. As the tribunal’s decision could not stand, Justice Nelson opted to resolve the matter himself and ordered that the claim be stayed pending the ECJ’s decision in Heyday.

EAT, December 4, 2007

Government plans to help people with mental health problems return to work have come under fire from charities and trade unions.

In a bid to tackle “stress and other mental health-related sick notes”, the departments of Work and Pensions and Health plan to triple the number of employment advisers in GP surgeries.

However, Sue Christoforou, policy officer at mental health charity Mind, warned that the move could prove counterprodutive: “Although the vast majority of people with mental health problems are keen to get back to work, it is important that they do not feel forced to do so before they are ready.

“The presence of jobcentre advisers could not only make people feel under pressure, but could also deter them from going to their GP altogether,” she said.

The Trades Union Congress has also expressed doubts about the scheme: “If people return to work too early it can make a recovery less likely, especially if their illness was initially work-related,” a spokesman said.

Public finance magazine, December 7, 2007

A Christian manager employed by a Christian charity is claiming unfair dismissal after allegedly being forced to discriminate against non-Christian employees.

Mark Sheridan, an ex-manager of Prospects charity, and another former employee are taking claims of constructive dismissal to an employment tribunal in North Wales. The British Humanist Society, which is supporting Mr Sheridan in his claim, said he left his job after the charity changed its recruitment policy to hire only practising Christians. Mr Sheridan claims he was forced to tell existing non-Christian staff they were ineligible for promotion and eventually resigned as the policy change had made his management job increasingly difficult.

The case is potentially a landmark one as it will be the first to test the extent to which organisations can attach “Genuine Occupational Requirements” to jobs under the Employment Equality (Religion or Belief)Regulations 2003. 

Hanne Stinson, chief executive of the British Humanist Association, said: “We are pleased to be involved in what is potentially a landmark case in the area of discrimination on grounds of religion or belief. This is why this case is so important. We believe that since that law came in, some religious organisations are actually discriminating more in their employment practices, and this case appears to confirm that.”

Times, December 5, 2007

A woman who claims she was refused flexible working has told an employment tribunal that she had a miscarriage while suffering from work-related stress.

Nicola Adedeji, a former arts centre manager at the Barbican London, is claiming unfair dismissal, victimisation and indirect sexual discrimination.

Mrs Adedeji said she first made a request for flexible working after her mother had an accident and was no longer able to look after her two children. She claims this request was rejected. She then suggested a jobshare and four weeks’ leave the month after her baby, and third child, was due. She claims this was also rejected, leaving her devastated and with no one to look after her children. She told the tribunal that she became ill and her doctor diagnosed work-related stress, a few days later she suffered a miscarriage.

The Barbican denied the claims and argued that its reasons for refusing flexitime included concerns that it would have amounted to two double shifts and that this could have been detrimental to Mrs Adedeji’s health and her ability to deliver customer service.

The Barbican said in a statement: “We are confident of our case. The Barbican has a good record of relations with its staff and will be rigorously defending its position in this case.”

The hearing continues.

Guardian, November 27, 2007

Employees are increasingly using company time to complete their Christmas shopping online, a new study suggests.

Research by employment law firm Peninsula predicts that on December 10, traditionally the busiest day for online Christmas shopping, almost 40 per cent of employees will search for gifts during working hours. In total the activity is expected to cost UK businesses £90 million in lost hours.

Peter Done, managing director of Peninsula, said: “It appears that more employees are turning to the internet to purchase presents. As online shopping becomes easier and more convenient so does the temptation to use company time to online shop.

“In addition to blocking access to certain websites, employers should instigate an acceptable user IT and internet policy within their organisation, making it clear to staff exactly what they are and are not permitted to do and the time parameters in which to access such sites. If an employer does not have a policy they may find it more difficult to restrict or monitor employees using such facilities.”

www.onrec.com, December 7, 2007

Firing an employee who used text messages to call in sick after his brother’s death was unfair, an Edinburgh employment tribunal has ruled.

The case concerned Mark Morrison, who worked as a sales adviser for tiles shop Tile It All. When his brother died, Mr Morrison sent a text message to his manager to inform him. He subsequently sent a text to say that he would be off sick until after the funeral. He claimed that his manager phoned and told him to bring a doctor’s certificate with him on his return to work. Mr Morrison claimed that no comment was made when he returned to work and handed in his sick note.

Suffering from depression after his brother’s funeral, Mr Morrison stayed at home four days later. He sent text messages to his employer each day to say that he was depressed and not coming to work. Mr Morrison’s employer then summoned him to a disciplinary hearing and subsequently dismissed him for failing to follow company procedures for reporting absences. The policy stated that absences should be notified by phone calls or sick lines sent in.

The tribunal found it unfair that when Mr Morrison returned to work after his bereavement, he was not warned about his use of text messages; but when he did the same thing a few days later, he was disciplined.

“The company’s complaint that text messages were not acceptable was petty and in any event the tribunal did not believe that the claimant had been told he must not notify absence by way of text messages,” said Tribunal chair Susan O’Brien.

“Throughout these events, the employer was perfectly aware of the reason for the claimant’s absence. A modicum of common sense could have straightened all this out.”

Mr Morrison was awarded compensation of £6,977.

Commenting on the case, Ben Doherty, an employment law specialist with law firm Pinsent Masons, said: “Accepting notification by text one week and refusing it the next is asking for trouble. This serves as a useful reminder to employers of the importance of adopting a consistent approach to breaches of employment policies and incidents of misconduct.”

Out-law.com, November 22, 2007