Levy & McRae are pleased to announce the successful outcome of their challenge to latest indictment libelled against the owners of Rosepark Nursing Home. Following the tragic fire at the home in 2004, the Crown have sought to prosecute the owners of the home for alleged breaches of Health and Safety legislation. In upholding our submissions, the High Court have once more dismissed the present indictment as incompetent.

Please click here to see the judgement.

Summary Of Decision

Max Mosley sued Newsgroup Newspapers Limited as the publishers of the News of the World newspaper following an article in March 2008 with the headline “F1 Boss has Sick Nazi Orgy with 5 Hookers”. Mr Mosley also complained of images published alongside the article. The case was based on breach of confidence and/or the unauthorised disclosure of personal information said to infringe Mr Mosley’s right to privacy as protected by Article 8 of the European Convention on Human Rights. There was no claim for defamation. (more…)

Levy & McRae are nominated in 3 Categories. Find out more here.

In September 2007 a lady named Gillian Switalski, later described by the Employment Appeal Tribunal as a “high-flying city lawyer”, resigned from her job as Director and Head of Legal at F&C Asset Management. F&C is an important fund management company which had merged with another fund manager in 2004, giving the combined organisation over £100 billion of assets under management.

Ms Switalski claimed she had resigned in response to sex discrimination, harassment and victimisation which had occurred after the merger and that her resignation amounted to constructive dismissal. She won before an employment tribunal. The employer appealed to the EAT, which heard the case on 17th and 18th April 2008.

On 23rd May the EAT issued its judgment. It pointed out that its function was to consider points of law, not fact, and that its role was “… not to say whether we agree or disagree with the Tribunal’s conclusions. It is to determine whether or not the findings under appeal are legally permissible or flawed”. On that basis the EAT dismissed F&C’s appeal meaning that, unless F&C appeals on to the Court of Appeal, the matter will now go back to the employment tribunal for assessment of compensation.

This is where what otherwise might have been a sad but not particularly noteworthy case gets interesting. Newspaper reports suggest that Ms Switalski is claiming – wait for it – £13.4m compensation (for psychiatric problems, loss of pension benefits and diminished career prospects – Financial Times, 12th March 2008) or perhaps even £19m (Times, 18th April 2008). Quite apart from the obvious reaction of most normal employees (and employers), it is worth pondering whether it is appropriate that employment tribunals should be given the job of assessing compensation when amounts like this are in dispute – after all, until quite recently the maximum award a tribunal could make was £12,000 and even full time employment judges have salaries of less than £100,000.

www.emplaw.co.uk

First came a draft EU Directive on ‘Working Conditions for Temporary Workers’, put forward in 2002 but ‘stalled’ ever since. Then, in 2007, came Andrew Miller MP’s private member’s Temporary and Agency Workers (Equal Treatment) Bill which gained considerable parliamentary support and prompted a Government review. Now the question of rights for Agency Workers appears finally to be making headway.

On 20th May the Government agreed a ‘Deal’ with the TUC and the CBI, as announced by a BERR Press Release on 20 May, 2008. Mr Miller’s Bill was withdrawn the next day.

The main points of the ‘Deal’ are as follows:-

• After 12 weeks in a job the Agency worker would be entitled to ‘equal treatment’. ‘Equal treatment’ means ‘basic working and employment conditions’ (pay, holiday, etc) that would apply had the worker been directly and permanently recruited, but not occupational social security schemes (pensions, etc).
• The Government will consult further about implementing the draft Directive on matters such as dispute resolution and anti-avoidance measures.
• An important point specifically covered by Mr Miller’s Bill but so far as we can see not mentioned in the ‘Deal’ concerns the rights of agency workers who have been working for the same end-user for more than a year. If a person in that position is unfairly dismissed should he or she sue the end-user or the agency, or might they even be legally self-employed and so not able to sue either?

Both the Court of Appeal and the EAT have recently called for legislation to clarify the position. Mr Miller’s Bill certainly tried to do that, albeit in a rather bulldozer like fashion – it contained a clause which provided that the worker would be deemed to be an employee of both the end-user and the supplying agency and that they would be jointly and severally liable for any award of unfair dismissal compensation. On the face of it the 20th May deal looks as though it may make the position on this important point more confusing than it is already, rather than less. Until the small print is available, we cannot be sure.

The arguments are far from over. The TUC welcomed the deal calling it a “victory for union campaigning“ but the CBI was less enthusiastic, describing it as “the least worst option”. At least they had their chance to have a say – the Financial Times of 27 May, 2008 reported that the British Chambers of Commerce and the Federation of Small Business (FSB) feel that the Deal was reached “behind closed doors” and are not happy. FSB Chairman Alan Tyrell clearly sees the agency worker issue as linked with proposals for an extension of the right to request flexible working time and that employers, especially small employers, can only lose out. The FT quotes him as saying “You can’t have an extension of flexible working and at the same time clamp down on the means by which many small businesses cope with it, which is often through temporary workers.”

The ‘Deal’ is unlikely to become law unless and until the EU Directive is agreed – and that calls for equal rights after only six weeks. The British government has so far resisted that call but is clearly now wanting to get agreement on the Directive. Agency workers, agencies and end-users should keep a careful eye on what develops.

www.emplaw.co.uk

The Gibbons Review recommended in March 2007 that the statutory disciplinary and grievance procedures, introduced less than three years earlier as a compulsory preliminary to most employment tribunal hearings, should be scrapped and replaced with something simpler.

The Employment Bill currently before Parliament will do the job. Probably with effect from April 2009, there will be new less prescriptive rules designed to encourage ‘out of court’ settlement of disputes between employees and employers wherever possible.

An ACAS Code of Practice, recently issued in draft for consultation (running until 25 July, 2008), is a cornerstone of the new proposals. Employment tribunals are to be given power to increase awards of compensation to employees by up to 25% if an employer has unreasonably failed to comply with the Code in his dealings with a disaffected employee.

On 21 May, 2008 the Government issued its formal response to the consultation it conducted into the Gibbons Review recommendations. It explains the reasons for abolishing the existing procedures and also clarifies plans for a ‘fast-track’ system to deal with some types of claim made to employment tribunals. There will apparently be further consultation – on the fast track system, on proposals to widen tribunal powers to make recommendations regarding discriminatory practices and on a new tribunal application form (ET1). One area that is not up for debate, however, is that of time-limits and extensions to them.

Few tears will be shed at the passing of the current statutory disciplinary and grievance procedure rules. As a judge recently noted in the EAT, they have provoked “a sea of negative comment of Pacific rather than Caspian proportions” (in Clyde Valley Housing Association Ltd v MacAuley EAT on 3rd April, 2008).

www.emplaw.co.uk

A third of employees have been to work with a hangover while more than one in 10 has been drunk at their desk, according to a poll.

Those going into work feeling worse for wear admit making mistakes, doing as little as possible, having to go home early and struggling to concentrate.

Yet all this has not escaped the attention of their bosses, with 77% of employers believing alcohol is the number one threat to employee well-being and is encouraging sickness absence.

The poll of 1,000 people and 250 businesses found almost a third of employees (32%) had been to work with a hangover and 15% had been drunk at work.

One in 10 said this happened at least once a month while one in 20 said it was once a week.

Of those who go to work on hangovers or have been drunk at work, 85% said it affected their performance or mood.

More than a third (36%) found it hard to concentrate, 35% were less productive, 42% felt tired to the point of being sleepy, 25% did the minimum amount of work and went home as soon as possible and almost one in 10 made lots of mistakes.

People working in media and creative jobs were the worst culprits, with 41% admitting they have been to work while still intoxicated.

A quarter (24%) of those in construction have done the same, as have 23% of people working in professional and business services and 15% of people in IT.

More than half of employees (54%) questioned thought that their bosses and colleagues noticed a change in their productivity as a result of drinking.

Almost a quarter (24%) have also felt embarrassed about something they have said or done in front of their boss or colleagues after drinking.

Sky News SkyNews, May 7, 2008

Professional football has a problem – football clubs’ are in danger of losing any national identity.

In Europe, it was established back in 1995 that any limits or quotas on player numbers by reference to nationality are unlawful if they affect nationals of EU member states, and also that transfer fees for out-of-contract players who are switching from a club in one EU Member State to a club in another Member State are illegal (the Bosman case, ECJ no C-415/93).

Recently, in May 2008, FIFA (the world governing body) voted in favour of a rule which would limit every team to only five foreign players in their starting 11. However in the EU, this would be unlawful as direct discrimination.

UEFA, the European governing body, supports the philosophy and objectives of the FIFA proposals but as they are considered illegal in the EU, cannot do much other than continue with its own proposals from the 1990’s. Under the UEFA proposals a club would have to field a minimum number of ‘home grown players’ to be eligible for UEFA competitions, but ‘home grown’ players could be of any nationality. This would no doubt be indirectly (rather than directly) discriminatory but as such it would be lawful if justifiable as a “proportionate means of achieving a legitimate aim”. Indications from the European Commission suggest they would not argue against this (message from EC Commissioner Vladimír Spidla, 28th May 2008). However the UEFA plan is opposed by the footballers themselves and would probably be seen by many as less satisfactory than the FIFA proposal.

In the past the ECJ has recognised that a distinction can be drawn between matters of purely sporting interest and those which are of economic relevance – and the Treaty of Lisbon (2007) acknowledges the ‘specificity of sport’, albeit without doing much about it. So there may be scope for some movement. We will keep readers informed.

www.emplaw.co.uk

After the Soham murders in 2002 and the 2004 Bichard Report which followed from it there was uproar when it was disclosed in late 2005 that the Government (Department for Education) had cleared a man to work as a PE teacher in Norwich notwithstanding that his name was on a sex offenders’ register. The Government then disclosed that it had cleared 88 other sex offenders to work in schools and promised speedy action to tighten the law.

Legislatively, the result was the Safeguarding Vulnerable Groups Act 2006. This establishes an Independent Safeguarding Authority (‘ISA’), removing direct responsibility from the Government. The ISA will set up and maintain two new lists of names called the ‘Children’s Barred List’ and the ‘Adult’s Barred List’ which will replace the current List 99, the Protection of Children Act List (‘POCA’) and the Protection of Vulnerable Adults List (‘POVA’). ‘Regulated Activity Providers’ will commit an offence if they employ a person without making checks with the ISA and persons on the lists will commit an offence if they engage or seek to engage in ‘regulated activity’.

When the new system is in operation it will not always be necessary to do a CRB (Criminal Records Bureau) check as well as an ISA check. However the ISA does not replace the CRB, and a CRB check will still be needed where required by law, for example by education staffing regulations and for care workers under the Care Standards Act. Anyone concerned about their legal position would be well advised to take expert advice.

The Government announced in April 2008 that the new system will start sometime in October 2009. At the end of May this was followed up by a 54 page document with further details of how the new scheme will work and confirmation of the start date as 12th October, 2009. This document also says that the ISA application fee for those in paid employment will be £64.

It is worth noting that separately from any of the above a controversial private initiative known as the National Staff Dismissal Register is currently being set up. This is a collaborative ‘Web2’ application intended to enable qualifying applicants to share details of individuals who have been dismissed or left a Company whilst under suspicion of certain types of criminal activity (essentially theft or fraud).

www.emplaw.co.uk

Companies have launched a database which allows them to share details of employees accused of dishonesty at work.

The National Staff Dismissal Register lets firms log details of staff caught stealing, committing fraud or damaging company property.

Other companies can then use the database to check job applicants’ history.

Trade Unions and Civil Liberties groups condemned the move. GMB General Secretary Paul Kenny said: “There will be an enormous kick back against this and GMB as the major union for shop workers will lead the charge.

” But organisers Action Against Business Crime said the database complied with data protection laws and said 99% of people logged would have their details removed after three years.

Chief executive Mike Schuck said workers put on the database would also be allowed to check what information was held about them.

He said: “This is no blacklist. Not everybody who has been dismissed will go on the database.

“Nobody will go on for stealing a £5 T-shirt. But if they have stolen many £25 T-shirts over a period of time, and they have shown a system and planning and conspiracy they will finish up on the database.”

“The database will hold details of people not prosecuted or found guilty in court of the allegations made against them”, he said. But he said “the maximum time someone would be held on the register would be five years – except in exceptional circumstances.”

He said employers signed up to the scheme include Harrods, Selfridges and Reed Employment but he hoped it would expand to include businesses in construction, leisure and tourism. The information will be encrypted and password protected.

www.emplaw.co.uk

More and more mothers are being forced to return to work to help make ends meet, a study has found.

Researchers found parents’ choice of caring for their own children is rapidly becoming a luxury available only to those who can afford it.

The number of stay-at-home parents has hit its lowest level in 15 years with just 7 per cent of all parents now staying at home to look after their children.

With household bills rising £148 a month since 2007, the real rate of inflation for families hitting 9 per cent, and the UK seeing disposable income at its lowest level in a decade, the rising cost of living is taking its toll on young families.

The study found that 38 per cent of parents with children under two find they have to go back to work for financial reasons.

Ann Robinson, Director of Consumer Policy at uSwitch.com which commissioned the report, said: “Economic factors are taking away the choice for many young families today.

“People who want to stay at home can’t afford to due to rising household bills, and even people who want to return to work can’t afford to either, due to the high cost of childcare.

“As a result, both parents and children are losing out.

“Any initiatives introduced by the Government that support parents wishing to return to work when they have children should be commended – but we also need to recognise that some parents would prefer to stay at home to look after their children, even if only during the early years.

“This is all about parents having a say in how they raise their families.”

Since 2003 many employees have had a statutory right to request flexible working arrangements – not a right to flexible working but a right to request flexible working. An employer is not obliged to agree a request by a qualifying employee if he considers that one of a number of grounds (listed in the Employment Rights Act 1996) applies. The sanction against a defaulting employer is that an employment tribunal has power to order reconsideration of the request and to award compensation of up to (currently) £2,640.

The right has been steadily opened up to an ever-increasing number of employees. From April 2003 it was available to parents of children under 6 (or disabled children up to 18). From April 2007 the right has been extended to those with responsibility for caring for spouses and adult relatives. Now, in its Draft Legislative Programme for 2008/9, published on 15 May 2008, Gordon Brown’s government is proposing that all employees with children up to age 16 will have the right to request flexible working. As David Cameron is on record as saying less than a year ago that he wants all parents with children under 18 to have the right to request flexible working arrangements it seems likely that this, at least, is a proposal which the Government will be able to get through Parliament without difficulty.

But where should the balance between the needs of family and the needs of business lie? Might this be a step too far? Certainly many employers clearly do not share the politicians’ enthusiasm for the proposal. For example the Financial Times 19 May 2008 quotes FSB Chairman Alan Tyrell as saying “The current flexible working regime seems to be working but the Government should be cautious about extending it too far which could be damaging to small businesses and, as a result, the millions of people they employ.”

www.emplaw.co.uk