As The Herald’s legal advisor, Levy & McRae were delighted to contribute to the newspaper’s 225^th anniversary supplement in recognition of the proud and ever strengthening relationship between the newspaper and the firm.

View the advert (pdf, 160k).

The firm are delighted to welcome the arrival of two new solicitors to the litigation team.  Alan O’Dowd joins from Brechin Tindal Oatts where he completed his traineeship, qualifying as a solicitor in September 2005. 

After qualifying, Alan worked within the litigation department at Brechin Tindal Oatts, dealing mainly with personal injury actions involving public liability, employers’ liability and motor claims and property claims. 

The team is also boosted by the arrival of Jillian MacKenzie who joins from Thompsons solicitors  After training at Thompsons, Jillian qualified in August 2006.  Jillian brings her experience of predominantly Court of Session pursuer reparation dealing with employers’ liability claims, personal injury and motor claims. 

The appointments reflect the continued growing case load successfully dealt with by the firm.

The government introduced regulations in 2004 to encourage employers and employees to settle disagreements out of court. Rather than using a ‘carrot and stick’ approach the regulations provided no carrot, merely a bundle of sticks. Employers and employees are penalised if before making, or replying to, an application to an employment tribunal they have not tried to settle by following specified procedures.

Unsurprisingly, the law of unintended consequences came into play. A new legal sub-culture rapidly grew up with employees, employers and their lawyers bringing cases simply to decide whether the new regulations applied and if so what was their effect. This was not what the government had intended and the Employment Bill currently before Parliament includes provisions to revoke the 2004 regulations. They will be replaced by non-prescriptive measures to encourage out of court settlement of employment disputes. Employment tribunals will be given discretionary powers to impose penalties on employers and/or employees who have not made a reasonable attempt to settle out of court, probably taking into account a beefed up ACAS Code of Practice.

Employees, employers and their advisers as well as judges will no doubt breathe a sigh of relief when the ill-fated Employment Act 2002 (Dispute Resolution) Regulations 2004 are eventually consigned to the dustbin. However that is unlikely before next year.

The Bill which will achieve this result was originally to be called the Employment Simplification Bill. Sensibly the word ‘Simplification’ has been dropped. The Bill contains provisioins which are far from simple, including new National Minimum Wage enforcement powers, strengthening of the Employment Agencies Act 1973 and extending the rights of unions to expel/exclude members. It is now called simply ‘the Employment Bill’ – as well put by a member of the House of Lords in debate it is “a shame that the only area the Government could conceive of simplifying was dispute resolution”.

http://www.emplaw.co.uk/, February, 2008

The number of employment disputes going to tribunal could be cut if firms spent more time educating line managers, according to employment experts.

A recent mock tribunal, run by office support recruiter Crone Corkhill and law firm Boyes Turner, aimed to highlight how firms can leave themselves wide open to lawsuits.

In the fictitious case, the line manager had not kept any appraisal notes, referred to older workers as ‘wrinklies’ and refused to consider the claimant for another position even though he was being made redundant.

“While organisations often invest time and money in ensuring that their HR professionals are up to speed with employment law issues, it is often the actions of line managers which lead to tribunals in the first place,” said Tracy Durrant, managing director of Crone Corkill.

“Often, the HR department ticks all the boxes in terms of policies and procedures – but it is the line manager who has most to do with the employee on a day to day basis – if they are not aware of when they are crossing the legal boundaries then organisations could find themselves in deep water,” Barry Stanton, partner at Boyes Turner added.

www.onrec.com, January 16, 2008

The right to request flexible working should be extended to all employees to help tackle the gender pay gap, according to a committee of MPs.

A report by the Business, Enterprise and Regulatory Reform Committee calls on the Government to consider a “gradual extension” of flexible working, saying that a lack of quality part-time jobs was one of the main reasons for the continuing pay gap.

The Government has already pledged to consider extending the right to ask for flexible working to parents of older children but the committee argued that the current focus on parents and carers was too narrow.

“It risks leaving working in a (perceived if not actual) ghetto as ‘a woman’s problem’ and a sign of a lack of commitment among nearly half the workforce,” the report states.

The report also calls on the Government to consider the introduction of mandatory pay audits and to improve careers advice and work experience.

Judy Mallaber, Labour MP for Amber Valley, who led the inquiry, said: “The gender pay gap persists despite 30 years of equal pay legislation, largely due to occupational segregation.

“We need a strong and determined effort on all fronts if we are to crack the worryingly stubborn pay gap and inequality in employment.”

BBC and Reuters, February 9, 2008

The Government has announced £38m in funding in a bid to
help prevent workplace disputes unnecessarily going to
employment tribunals.

Accepting the funding, the Advisory, Conciliation and Arbitration Service (ACAS) said that it would now be able to expand a number of services, including its help line, which already answers nearly one million calls a year. ACAS said that it would also look to provide more services that encourage good employment relations and prevent disputes from happening at an early stage.

“This new investment will enable us to increase our effectiveness and spread the benefits of good employment relations more widely,” said ACAS chair Ed Sweeney. “I am delighted by this news and the Government’s recognition of the unique and valuable role that we play.”

Minister for Employment Relations Pat McFadden said that early action can often prevent the need for tribunals, bringing benefits to business and employees.

“We want to move from the current overly rigid and legalistic process to one where there is more conciliation between employers and employees,” he said. “This new system will strike a balance between ensuring workers can protect their rights through employment tribunals while helping them to resolve disputes as early
as possible.”

ACAS press release, February 6, 2008

More than one in ten workers claim that they have been sexually harassed, according to a new survey.

Commissioned by insurer Royal & SunAlliance, the survey indicates that as many as five million United Kingdom workers feel that they have been sexually harassed in the workplace.

A claim against a company for sexual harassment can cost upwards of £10,000 at tribunal, potentially costing British business a massive £51.9 billion, Royal and SunAlliance said.

Aaron Devitt, Director of Professional and Financial Risks commented: “This research has clearly highlighted the need for businesses to do more to protect their employees and themselves from sexual harassment in the office.

“As an insurer we have a responsibility to prepare our customers for the risks they could face. The ramifications of such incidents can be far reaching – employee welfare, legal costs and reputational damage could severely impact upon a businesses’ ability to trade.”

Royal & SunAlliance press release, February 11, 2008

Employers are starting to hire “union-busting” consultants to persuade employees not to join trade unions, according to a report from the Trades Union Congress (TUC).

The TUC and its US equivalent have joined forces to highlight the ‘threat’ to the rights of UK workers. The TUC says that scare tactics are being used in a bid to keep workplaces union-free.

TUC general secretary Brendan Barber said: “The underhand tactics employed in the shadowy world of the union-busting consultant are proving increasingly attractive to a handful of employers in the United Kingdom.

“Good employers realise the safety, communication and training benefits of having a union at work and many actively encourage their staff to join a union.

“But there are a small minority of bosses who fear the voice a union would give their employees and will do almost anything to keep the union out.

“This is a US export that the UK workplaces could well do without.”

Ananova, February 12, 2008

Britain’s carers are on the brink of winning new rights from workplace discrimination following a European court opinion.

The opinion was issued in the case of Sharon Coleman, a legal secretary, who is suing her former employers for allegedly harassing her into resigning after she requested time off to care for her
disabled son.

The Advocate-General, whose opinions are followed in around 80 per cent of cases, ruled that legislation banning disability discrimination also covered employees who are associated with disabled people, such as Ms Coleman.

If the opinion is followed by the full court it would provide new rights for employees who are forced to juggle their jobs with caring for a disabled relative.

“Every employer will have to look at their recruitment and employment policies and make sure they are not discriminating against carers,” Imelda Redmond, Chief Executive of Campaign Group Carers
United Kingdom, said.

A final ruling on the case is expected later in the year.

BBC News, January 31, 2008

HM Revenue & Customs has a generous sick leave scheme.  Nevertheless employees on long-term sick leave claimed they were entitled to four week’s paid holiday for each year of their sickness absence, or pro rata for less than a year’s absence.  They said that followed from the wording of the Working Time Regulations 1998.

The Court of Appeal disagreed and they appealed to the House of Lords. The House of Lords was not so sure and referred the question to the European Court as ultimately the answer turns on proper interpretation of the EU Working Time Directive (see HMRC v Stringer, Ainsworth & ors, HL 2006). The ECJ Advocate General has now given a preliminary opinion.

It is that:
– workers are entitled to accrue paid holiday leave while absent on indefinite
sick leave;
– they can take the leave only after they have returned to work;
– they are entitled to pay in lieu if dismissed without having taken the accrued leave but not otherwise.
To many, especially employers, the Advocate General’s view will seem strange.

As a matter of law it can be strongly argued that the Advocate General’s opinion misses the point. The Working Time Directive is a health and safety measure to ensure that workers get proper rest breaks and leave.  The opinion is more about the money
than the holidays.

Whether the ECJ will follow its usual, but not guaranteed, practice of following the Advocate General’s view remains to be seen.

http://www.emplaw.co.uk/, February, 2008

The annual order increasing social security benefits in April 2008 (the Social Security Benefits Up-rating Order 2008) has now been issued in draft.

It confirms plans announced in December 2007 (for detail see Hansard cols 102WS to 118WS, 6th December 2007). These include proposals  to increase the standard rate of Statutory Maternity Pay, Statutory Paternity Pay and Statutory Adoption Pay by 3.9% to £117.18 (currently £112.75). Statutory Sick Pay will increase to £75.40 (currently £72.55). 

Note that to qualify for any of these the claimant must have had average weekly earnings of at least the National Insurance Lower Earnings limit for at least 8 weeks.  This is to be set at £90 with effect from
6th April 2008.

As from 6th April 2006, the upper limit for Class 4 NI contributions for those who are self-employed increases to £40,040 (currently £34,480).

http://www.emplaw.co.uk/, February, 2008

A Court of Appeal decision will make it more difficult for the UK’s 1.4m agency workers to claim the same job protections as permanent employees.

The case centred on an unfair dismissal claim brought by a temporary worker on Greenwich Council’s Asylum Support Team after she was replaced in 2004. Merana James argued that her long-term engagement with the council, coupled with the fact that she was treated as a permanent member of staff, entitled her to the same protections as contracted employees.

The Court of Appeal rejected her case, declining to infer a contract of service between Ms James and the council where there was no express agreement.

There has been a European push for fresh temporary worker legislation and the United Kingdom has fought off attempts to introduce European laws that would give agency workers the same rights as permanent employees after only a few weeks of employment.

Citing the controversy surrounding the absence of job protection for agency workers, the Court of Appeal said that it was for Parliament, rather than the judiciary, to make changes to the law. Courts were “not architects of economic and social policy”, said Lord Justice Mummery.

Financial Times, Feburary 6, 2008

The annual increases in the maximum compensation which employment tribunals can award in many cases came into effect on 1st February. It is important to remember that there is no statutory maximum in age, sex, race and other discrimination cases.

The two most generally important increases are (i) to the amount of a week’s pay which can be taken into account in calculating statutory redundancy pay and/or basic award on unfair dismissal – the increase is from £310 to £330; and (ii) to the limit on the amount of compensatory award a tribunal can order to be made on unfair dismissal – the increase is from £60,600 to £63,000.

The new limits apply where the ‘appropriate date’ (as defined) falls on or after 1st February, 2008. In general, the ‘appropriate date’ is the date on which the event took place which gave rise to the claim – such as dismissal in an unfair dismissal case. If the appropriate date is before 1st February, 2008, then even if the award is made after that date the previous limits apply. www.emplaw.co.uk, February, 2008

HM Revenue and Customs has announced that, with immediate effect, employers and agents authorised to act for them will be able to use the online links within the ‘About your organisation’ or ‘About your client’ pages.

These links can be used to:

To use these services, the user must log in (follow links from ‘PAYE for Employers’ under ‘do it online’ on the left-hand side of the HMRC Home page at: www.hmrc.gov.uk using their User ID and Password and select ‘About your organisation/client’ from your PAYE Online service page.

Using HMRC Online Services is secure. Any changes made will update HMRC records within 48 hours – although this may take longer over a weekend or Bank Holiday.

HM Revenue and Customs, February 6, 2008