The Firm magazine, in partnership the Registers of Scotland, hosted the annual award ceremony at the Glasgow Hilton Hotel. Nominated by clients and evaluated by professional peers, the awards look to recognise and reward excellence in the Scottish legal arena. Levy & McRae are proud to congratulate our Senior Partner, Peter Watson, who was awarded the Solicitor of the Year.

Leading Scottish solicitors Levy & McRae have dramatically strengthened its team with the appointment of Andrew Sleigh, who joins the firm from Burness.

Sleigh, aged 50, is singled out in the current Legal Experts directory in the fields of corporate M&A, sport, insolvency and corporate recovery.

This move now sees Sleigh teaming up with Levy & McRae’s formidable Senior Partner, Peter Watson, who has built up a worldwide reputation for the firm especially in the areas of aviation, international claims and media law. (more…)

Levy & McRae are delighted to sponsor the Strathclyde Police Federation Cycling Team. The Team recently undertook a cycle from Dumfries to Inverness stopping at each Police Office en route to collect donations. The team raised over £27,000 for Children’s Hospice Association Scotland.

Following the recent independent review, the Government has announced that the right to request flexible working will be extended to all parents of children aged up to 16 years, although it is yet not confirmed when this will be implemented. Currently parents of children under the age of 6, disabled children under 18 and carers of adults have the right.

“The best employers, large and small, already offer a right to request flexible working to all employees. The most recent research adds to the evidence that flexible working gives employers a competitive edge in recruitment, retention, employee commitment and, crucially, performance.” Said Sarah Jackson, CEO of Working Families.

However the procedure has not been simplified. The employee still needs to make a written request. The employer must meet with the employee within 28 days and then provide a written response within 14 days, along with a right to appeal against any decision not to grant the request.

An employer can only reject a request for specific reasons such as the burden of additional costs or inability to re-organise work among existing staff. Employers should be mindful that, if they turn down the request without justification, the employee could potentially raise a claim under the Sex Discrimination Act. They should also check that they have a clear policy and procedure in place and that reasons for rejecting requests are clearly documented.

A recent case has highlighted how interpretation of legislation relating to disability discrimination can change.

In the case of Mayor and Burgesses of the London Borough of Lewisham v Malcolm, the House of Lords overturned the decision that a disabled tenant had been discriminated against. They did not query that the tenant’s schizophrenia was a disability, but they concluded that the common comparator test used was incorrect.

Previously, the Court of Appeal in the 1999 Clark v Novacold case, stated that the comparator need not be “in the same or similar circumstances” as the disabled claimant. However here, the majority of the Lords decided that this was wrong.

This could affect the success of employees’ claims to tribunals under the DDA as they may now be required to use comparators who are in the same circumstances e.g. An employee dismissed because of one year’s sickness absence due to their disability may have to compare their treatment with another non-disabled employee who is also absent for one year, to clearly show that the reason for dismissal was their disability rather than their long-term sickness absence.

Nonetheless, regardless of comparators, employers would still be expected to make reasonable adjustments for their disabled employees.

Also, before any decision to dismiss is made, the employee should be consulted and an up-to-date medical report should be obtained (with the employee’s permission).

In the same case, the House of Lords also confirmed that it was necessary for the alleged discriminator to know that the claimant was disabled in order to be liable for discrimination.

But they have also made it clear that knowledge can be imputed, in other words if employers don’t know but should have known, they would still be liable.

Shirley Briggs, the PEACe Advisor, explores how mediation can help resolve disputes.

In May 2008 the Government published their response to the Gibbons review that explored the impact of the Statutory Dispute Procedures through a process of consultation across all sectors of employment.

The main response area that will have an impact on organisations and HR professionals is the decision to repeal the grievance and disciplinary process that was introduced in 2004. This represents one of the biggest employment law changes in many years.

The timescale for the removal of this statutory process is April 2009. Organisations will be encouraged to adopt new ways of working which incorporate workplace mediation and early resolution of disputes.

Workplace conflict is time-consuming, costly and it can be permanently damaging. It produces heated emotions, defensiveness and any number of insults and accusations.

Most disputes start out small, but there is no limit to where they can end up and the harm they can cause. Disputes between employees can sometimes escalate all by themselves to a point where they cause real damage to the organisation. At the end of the day a dispute can cost an organisation thousands of pounds and hundreds of hours of work, not to mention the harm to morale and motivation. It may threaten the life of a small organisation.

Mediation is a process that brings people together in the presence of an impartial third party who assists them in looking at their issues. The disputants, not the mediator, decide on the terms of this interaction and whether they come to an agreement or not. The mediator does not offer advice or solutions.

Mediation itself is voluntary. It cannot work unless both parties agree to mediate. People cannot be forced to mediate. Mediation is about the parties themselves deciding what to do about their issues. Mediation is also, technically, non-binding and without prejudice. This means that only the parties themselves can enforce any agreements and that taking part in mediation does not prevent parties from initiating other procedures.

The Government has recently announced their plans for a new entitlement to request time to train. The proposal is now under consultation until 10 September, 2008.

Services and in dealings with public bodies, except where it is seen as beneficial.

“A society which is equal and fair is one which is more at ease with itself” said Harriet Harman, Equality Minister.

In addition, the public sector’s equality duties will be extended to cover religion and belief, sexual orientation, gender reassignment and age. It is also expected that organisations bidding for public sector contracts will need to provide evidence of their diversity policy in practice.

The Government has published its response to the consultation on the Equality Bill, available from www.equalities.gov.uk.

The training must aim to make the employee more productive and effective at work and it is expected that requests will be treated in a similar way to flexible working. It is likely to only apply to employees with 26 weeks’ continuous service.

“A third of employers still don’t train their staff. We need to find new ways to bring the drive for skills into every workplace and to every worker which is why we are consulting on a new right for workers to request time to train.” Said John Denham, Secretary of State for Innovation, Universities and Skills.

Prospect, the union representing 34,000 of the Government’s most qualified staff, is calling on the Treasury and Government departments to honour the due dates for pay settlements or compensate staff for the loss.

The call came last Friday, 1 August, which is a key settlement date for many Civil Service pay agreements. The union says virtually no offers have been tabled for 2008 and several are still outstanding from last year.

Prospect’s Deputy General Secretary, Dai Hudd, said: “Over 90% of Prospect members should have had a pay settlement for this year by now, but we are still waiting for Treasury clearance of dozens of pay remits across the Civil Service. Our members are reaching breaking point. The Civil Service pay system has virtually seized up.”

A new Prospect survey of attitudes to pay, skills and working conditions, completed by more than 5000 members, found that lack of pay progression is the single biggest cause of dissatisfaction, compounded by derisory pay rises.

In 2007, over one third of Prospect’s Civil Service members received an increase of less than 2% – the Government’s own target for public sector pay.

“This adds insult to injury and means that civil servants fare even worse than counterparts in other parts of the public sector, where progression costs are separated from the basic pay award,” said Hudd.

Prospect press release, August 1, 2008

The Government’s recent amendments to the Sex Discrimination Act, which came into force from April 2008, aim to ensure that our obligations under the EC directive are fulfilled.

Organisations should check that their policies are up-to-date with all the changes.

There is now a new provision that says that employers must protect their employees from harassment from a third party, such as a service user. If the harassment occurs at least twice (although not necessarily by the same person) and the employer is aware of the problem but has not taken any reasonable steps to prevent it, the employer could be vicariously (indirectly) liable. Transferee employers under TUPE should note that they will inherit any previously reported incidents.

Reasonable steps for employers to take could include ensuring that organisations’ equal opportunities policies are well publicised and enforced. All staff should be aware of procedures for reporting and dealing with allegations of harassment, and appropriate training should be provided. Clients and service users should also be made aware of policies and what is regarded as unacceptable behavior.

Sexual harassment is also now more widely defined as ‘related to [a person’s] sex or that of another person’. This means that sexual discrimination could include witnessing another person being harassed. The employee just needs to show that the alleged treatment was connected or associated with gender.

It is expected that the Government will eventually make similar amendments to the harassment provisions in the sexual orientation regulations and the regulations on age and religion and belief.

If a woman wants to claim that she received less favourable treatment on the grounds of her pregnancy or related to her right to maternity leave, she no longer needs to find a comparable woman who is not pregnant or exercising a right to maternity leave.

Non-payment of a discretionary bonus during the two-week period when maternity leave is compulsory is now clearly discriminatory (for women with an expected week of childbirth falling on or after 5 October, 2008).

A woman absent on additional maternity leave (AML) will now have the same right to non-pay terms and conditions as she does during ordinary maternity leave (again for women with an expected week of childbirth falling on or after 5 October, 2008). Therefore benefits such as accrued contractual holiday will continue to apply as if she had not been absent. The rights too of a woman returning from AML, such as seniority and pension, will be unaffected by her absence.

The distinctions between the rights of employees on ordinary adoption leave and additional adoption leave will similarly be removed.

Meanwhile plans to increase the Statutory Maternity Pay (SMP) period from 39 weeks to 52 weeks is delayed until April 2010, when the Additional Paternity Leave and Pay is also expected.

Many employees will have less tax to pay from 7 September due to changes to the 2008-09 Personal Allowance that take effect on that date. HM Revenue & Customs (HMRC) has published advice for employers on what to do if their employees are entitled to a tax refund.

In May, the Chancellor announced changes to the Personal Tax System to compensate employees who lost out as a result of the abolition of the 10p tax rate in April. He increased the basic Personal Allowance for the 2008-09 tax year by £600, from £5,435 to £6,035, and reduced the basic rate limit from £36,000 to £34,800.

The changes take effect under the Finance Act from 7 September, but are backdated to April. As a result, employees paid on a monthly basis will receive around £60 extra in September followed by an additional £10 a month until the end of the tax year.

Some employees may be entitled to a refund of tax that they’ve already paid so far this year. Employers usually fund such refunds out of other PAYE deductions by reducing their next payment to HMRC. The payments to HMRC that can be reduced for this purpose are: PAYE (Pay As You Earn) tax and National Insurance contributions; Construction Industry Scheme (CIS) deductions; and student loan deductions.

If the next payment is insufficient to cover the employee refunds, employers can either reduce their subsequent monthly or quarterly payments or claim money from HMRC to cover the balance.

Details of the personal allowance changes, including the changes that will need to be made to employees’ tax codes, can be found at: www.hmrc.gov.uk/employers/epa-basicrate.htm

HMRC press release, 5 Aug, 2008

Acas, the employment relations service, today released new figures showing that employment tribunals and potential employment tribunal claims passed to Acas for conciliation rose by a quarter (24.9%) last year.

Despite the statistics, Acas – in its 2007/8 annual report – also revealed that it exceeded its performance targets for the year, demonstrating key contributions made to improving organisations and working life through better employment relations.

Headline statistics from the report include:

• Acas conciliation succeeded in reducing the potential workload of Employment Tribunals by 75%, slightly up on last year.
• 81% of workplaces reported an improvement in employment relations following intervention by Acas advisers compared to the 70% target that was set.
• The percentage of users for whom guidance helped solve a problem at work or reassured them they had taken the right course of action was 76%, exceeding the target of 65%.

Ed Sweeney, Acas Chair, said: “These figures from the annual report really speak for themselves. Acas has continued to play a central role in the employment relations arena not only in resolving disputes but also in providing valuable advice and guidance to employers and employees.”

One of the high profile successes of the last year was the role Acas played behind the scenes in helping resolve the Royal Mail dispute alongside the Trades Union Congress, preventing widespread disruption for UK businesses. Acas also continued to address issues at the forefront of the workplace, including health and wellbeing and vulnerable workers. Pilot schemes in Birmingham and London aimed at helping vulnerable workers are ongoing.

Looking ahead to 2009, Acas will be preparing for the implementation of the new dispute resolution system, following the Gibbons review and announcement in February by Pat McFadden that Acas will receive up to £37 million extra funding over the next three years.

John Taylor, Acas Chief Executive, said: “Much of our work over the next 12 months will focus on expanding our services and intervening earlier in individual disputes in anticipation of the changes to the law from the Employment Bill which is likely to come into effect in April 2009.”

Research published in November last year by the National Institute of Economic and Social Research showed that for every pound spent by Acas, over £16 is returned, generating benefits worth almost £800 million a year across UK businesses, employees and the economy.

The Employers Forum on Age (EFA) has welcomed the news that the Government is discussing lowering the minimum wage development rate from 22 to 21.

At its National Policy Forum in Warwick last month, the Government agreed to lower the age threshold for paying the adult rate of the national minimum wage from 22 to 21, subject to advice from the Low Pay Commission.

Catharine Pusey, Director of the EFA, comments: “We have long believed that the age bandings in the minimum wage constitute a form of age discrimination that puts younger workers at an unfair advantage. We campaign on this issue and are pleased the Government is acting to reduce this inequality.”

The Forum for Private Business has estimated that the extension of the minimum wage would cost small businesses an extra £88 million a year.

The EFA argues that equalising the minimum wage would bring a rise in costs to the employer, but this would be, in many instances, offset through the subsequent increase in labour supply. Higher wages would bring more candidates to the workforce giving the employer a greater number from which to choose the most productive workers. In addition, the increased rate of pay could increase the overall productivity of each worker.

Catharine Pusey added, “We believe that a rise in the development rate in line with the national rate would encourage more young people into the workplace – young people who may currently be drawing on state benefits. In fact our research estimates that the multiplier effect in the economy, where a rise in spending leads to a rise in national income, would benefit economic activity by approximately £227 million a year.”

EFA press release, July 28, 2008

The Government has been given more bad economic news as unemployment jumped by 60,000 and the number of people claiming Jobseeker’s Allowance increased at the highest monthly rate for over 15 years.

The jobless total grew to 1.67 million in the three months to June, the worst for over a year, giving a new unemployment rate of 5.4%, up by 0.2% on the previous quarter. Total unemployment, including people not eligible for benefit, is now 15,000 higher than a year ago.

The claimant count increased by 20,100 in July to 864,700, the sixth consecutive monthly rise and the highest total since May of last year.

July saw the biggest monthly increase since December 1992, and the number of people claiming Jobseeker’s Allowance is now 10,900 higher than a year ago.

Manufacturing jobs continued to be lost, down by 37,000 in the latest quarter to a record low of 2.88 million.

Vacancies were also down, by 47,000 in the three months to July to 634,900.

Despite the rise in the jobless figures, the number of people in work rose by 20,000 between April and June to 29.56 million, the second highest on record.

The figure was swelled by a big rise in the number of post-retirement people in work.

The number of women aged over 60 and men over 65 in work increased by 25,000 to reach a record 1.3 million, according to data from the Office for National Statistics.