The business world is enduring the most challenging economic conditions since the 1930s. In these more austere times, it is vital that businesses are properly equipped to survive the new reality. Levy & McRae has valuable experience in dealing with the major legal issues likely to confront you and we are here to help.

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Leading corporate lawyer, Andrew Sleigh, formerly of Burness LLP, has joined one of Scotland’s most successful legal firms, Levy & McRae.

Levy & McRae, best known for representing the families of the Piper Alpha Disaster and the Lockerbie Air Disaster Group, also has a strong commercial client portfolio with a diverse range of interests and Andrew Sleigh’s appointment to lead the Corporate Department demonstrates the firm’s ambitions for continued success. The firm is top rated for litigation and the Corporate Department expects to capitalise on the excellent connections made by the firm through its litigation expertise. (more…)

On the 22nd October, the UK Employment Appeals Tribunal passed a judgement which changed the established understanding of workers’ entitlement to rest breaks.

The EAT held that workers are now entitled to a 20-minute unpaid break when they work over 6 hours. This is a change from the previous understanding of workers being entitled to a 20-minute break for every 6 hours that they work. The practical results of this is that now where a worker works for 12 hours, they are not entitled to two breaks totaling 40 minutes but rather the one single break of 20 minutes.

Effectively, this decision means that the maximum total number of working hours in a week is now 76 provided that person has signed an opt-out from the Working Time Regulations.

www.impacttlimited.com, November 14, 2008

We are currently facing a recession. A recent survey of employers has suggested that recruitment levels over the next few months are expected to fall to their lowest for 15 years.

Employment agency Manpower said its poll of 2,100 UK firms revealed bosses planned to cut the number of staff they took on compared with last year. It said managers would assess company performance in the first quarter of 2009, before changing staffing levels. Employment prospects were “weak” in many major sectors, it concluded. These included manufacturing, retail, construction and finance.

Manpower managing director Mark Cahill said eight out of 10 employers were taking a “wait and see approach” to recruitment. He stated “The figures confirm the depressed employer confidence we’re experiencing as a business across the UK,” and “The mood is largely one of uncertainty.”

Employers in the north east of England were the most optimistic, while firms in the south east, west midlands, Scotland, Wales and Northern Ireland were the least.

www.bbcnews.co.uk, December 9, 2008

In defined contribution (DC) schemes, the contribution rate of employers and employees is set, but the income received on retirement is not. All money contributed is invested and the employee’s pension is dependent on the performance of the fund, which is administered by an external provider.

Defined benefit (DB) schemes fix the employee’s retirement income, based on length of service and salary level (often final salary). They are administered by a board of trustees (with employer and staff represented), which decides contribution rates and bears the risk of variable fund performance.

BT, which recently announced changes to both its DC and DB schemes, is planning to reintroduce financial awareness courses for staff approaching retirement. When the firm had a formal retirement age of 60, it had a course for employees approaching that age, but this changed when it moved to flexible retirement ages in 2005. It believes that there is a case for running a course for staff in their late fifties, although this would not be “prescriptive” and would lay out an individual’s options, according to Dennis Gissing, head of people practices.

Tesco, which still offers a DB scheme, has distributed a leaflet on personal finance to staff and provided briefings on handling their finances in the downturn. It has also produced enhanced annual statements giving the projected values of pension funds. “It’s not about controlling people’s lives, but about doing as much as we can to give information for them to make the right choices,” says Hayley Tatum, director of personnel, Tesco UK stores and distribution.

Pension funds in decline

• £552 billion – Total defined-contribution (DC) pension fund value, October 2007
• £395 billion – Total DC pension fund value, October 2008 (Source: Anon)

www.peoplemanagement.co.uk
November 27, 2008

The Queen’s speech outlining the Government’s plans for the next session of parliament highlighted a number of pieces of employment legislation that the Government is planning on implementing.

The draft programme had been rewritten in a bid to focus on the current financial climate.

One piece of legislation planned is ‘The Equality Bill: diversity, transparency and ‘positive discrimination’

According to the draft Bill:

• Tribunals will be given power to recommend that organisations change their equality policies
• Employers will be able to choose a job candidate from an under-represented group over an equally qualified ‘majority’ candidate
• Public sector employers – and private firms bidding for state work – will have to publish statistics on gender pay differences, as well as the numbers of ethnic minority and disabled people employed
• Public sector bodies will have new equality duties

www.personneltoday.com, December 5, 2008

Private and voluntary organisations with Glasgow and the city council will be invited by the Government and other organisations to support those on long-term incapacity benefits back into work.

In return cooperating organisations will be allowed to keep money that would previously have been paid to claimants. It is part of UK Government plans to get more than a million people off benefits and back to work and is due to be implemented within the next few years.

The proposals, contained in a white paper, would force people on benefits to do something in return for their money.

Arguments have been raised that the timing of the Government’s proposals couldn’t be worse due to the large scale employment losses within the UK however the Government have outlined that these proposals can work.

Those who refused to co-operate could have their benefits cut. Glasgow has more than 53,000 people claiming incapacity benefit alone.

BBC News, December 10, 2008

A case involving a man who suffered homophobic abuse at work has taken his landmark case to the Court of Appeal.

Heterosexual Stephen English claims he was continually taunted at work about being gay has taken his case to the Court of Appeal, after it was rejected by both an employment tribunal and appeal tribunal.

Mr English claims he endured years of homophobic abuse from colleagues at Thomas Sanderson Blinds. Finally, he raised legal action and brought a claim against his employers for harassment on grounds of sexual orientation under the Employment Equality (Sexual Orientation) Regulations 2003, after his attendance at Brighton’s Gay Pride parade wearing “skin-tight Lycra cycling shorts” was mentioned in the Thomas Sanderson Blinds in-house magazine.

Mr English, who has been married for 20 years and has three teenage children, told the tribunal that he ‘regularly had to endure remarks such as “faggot” at national sales meetings, team meetings at my home and regional managers’ meetings. These comments caused considerable distress both to myself and to my family, who were at home on occasions when I held team meetings and overheard comments referring to my perceived sexual orientation.’

The appeal tribunal referred the case to the Court of Appeal, in order to clarify if EU laws protecting people from discrimination on the grounds of sexual orientation in employment apply to a heterosexual man being subjected to homophobic abuse.

An EHRC spokesperson stated “Currently it is unclear whether those in situations similar to Mr English’s benefit from the protection of the law. A positive ruling would help a wide range of individuals who have suffered harassment based on out-of-date stereotypes. This is a case about fair treatment in the work-place,”

Pannone’s Emma Cross is an employment law specialist. She stated “To be harassment, the unwanted conduct which has the purpose or effect of violating a person’ dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment, must be ‘on the grounds of sexual orientation’. Government guidance suggests that the conduct can relate to the victim’s actual or perceived sexual orientation, or the sexual orientation of others (eg a family member). It may also be a response to a refusal by the victim to carry out an instruction to discriminate against another person on the ground of that other person’s sexual orientation.”

This case could potentially lead to an amendment in law: Ms Cross further stated “The EAT rejected Mr English’s claim that he had been subjected to unlawful homosexual innuendo by his colleagues. His claim failed because, although the homophobic banter was totally unacceptable, it was not based on his colleagues perception or incorrect assumption that he was homosexual. He accepted that they knew he was heterosexual. The unwanted conduct was not therefore ‘on grounds of’ sexual orientation. The Court of Appeal must now decide if the phrase ‘on the grounds of’ is capable of wider meaning or whether in a similar way to sex discrimination the regulations must be amended.”

www.lexisnexis.com, December 10, 2008

From March 2009 new measures are being introduced which significantly tighten up the rules for foreign students and colleges teaching foreign students in the UK.

All colleges and universities that want to recruit foreign students will now need a licence to do so and will have to take greater responsibility for their international students, helping the Government crack down on bogus colleges who abuse the system. For the first time education providers face a ban on bringing over international students if they fail to follow strict new rules – including alerting the UK Border Agency (UKBA) if students fail to enrol.

Students will also face stringent new criteria if they want to study in the UK, ensuring only those who benefit Britain can come. Before they can study here, foreign students must:

• be sponsored by a UKBA-licensed education institution;
• prove that they have the means to support themselves and their families while studying here; and
• supply their fingerprints.

Stricter rules on work placements for students will also ensure that the UK’s labour market is protected.

Home Office, July 30, 2008

The recent leak of BNP membership details onto the internet has prompted a leading employment lawyer to warn HR managers to distinguish between political activism and party membership when considering disciplinary action against employees.

Writing on PM Online, Martin Warren, a partner at Eversheds, said dismissing an employee for political party membership could be unlawful, but “if employees’ political activities affect colleagues, customers or the local community, an employer might be able to justify taking action”.

The document contained personal details of more than 10,000 BNP supporters, prompting fears among those included that they could be sacked if their employers had objections to any affiliation with the far-right political party.

“Employers will be on firmer ground if membership of an organisation is incompatible with a person’s job, and the organisation has a clear policy spelling this out. Organisations with an ethos based on strong ideological views might also be able to justify their actions,” he added

Dianah Worman, CIPD diversity adviser, urged HR professionals to take a “sensible and fair” approach to the “hugely contentious” employment issues related to the leak. She added HR managers only had grounds for action if an employee’s behaviour interfered with their work or compromised the reputation of the company.

The leaked list also prompted calls from unions for a ban on BNP members in public sector professions, particularly teaching. Members of the party are currently banned from working as police or prison officers but supporters are allowed to take other public sector posts if they do not discuss their views.

Yet 57 per cent of respondents to PM’s latest online poll believe membership of the BNP should be a disciplinary issue for employers more generally.

Several senior HR managers declined to be interviewed by PM because of nervousness by employers “that this is too political an area for the company to comment on”.

But Dave Perry, an independent HR consultant, told PM that being a BNP member was “absolutely” compatible with practising HR “because it’s perfectly possible to separate what you believe from what you do”.

He likened it to HR managers having to sack employees whom they liked. “I have had to sack people I like – not because I wanted to but it was my job.”

Perry added that appropriate behaviour at work, including abiding by anti-discrimination laws, was more important.

Mike Morrison, director at HR and OD consultancy RapidBi, said that preventing members of legal political parties such as the BNP from working as HR professionals would amount to discrimination.

“I would hope that most people can leave their prejudices at home,” he said.

www.peoplemanagement.co.uk
December 11, 2008

It is a very important part of our working life that we are entitled to paid holidays. At some stage we all need to recharge our mental and physical batteries and holidays are essential in keeping us capable for working life.

It is very important that you are aware of your holiday rights. Paid holidays are a part of our income, however, some employers will not pay what they should.

In October 2007, the minimum entitlement was increased to 4.8 weeks paid holiday from 4 weeks. This works out at 24 days for a full-time worker, with a pro-rata entitlement for part-time workers too. Unions have campaigned for an increase in the amount of statutory paid annual leave and from April 2009 this will increase to 5.6 weeks.

Direct employees, temporary agency workers and some workers who are self-employed for tax purposes are all entitled to statutory paid annual leave. This must be paid at your normal daily rate of pay, excluding overtime.

One in five people get the minimum amount of paid holiday, however, the average full-time employee gets 33 days leave including bank holidays. Union members are even better off on average, getting 37 days leave. Details of your personal leave rights can be found in your contract or staff handbook.

Your employer can tell you when to take your leave and can rule out holidays at certain busy times of the year. Your contract may specify when you can take leave, but it is most likely to say that the timing of leave will be “by mutual agreement”.

There is a legal period of notice to book leave and for an employer to answer the request, unless your contract gives you better rights. You should give the employer double the amount of time  of notice that you wish to take off. Your employer must then answer with ample time before your leave starts, and as a general rule your employer should give you notice equivalent to the length of the leave itself. It is important to note that employers often waive these requirements in order to keep their employees’ goodwill.

Sell-backs and carry-overs

Your contract may allow you to sell back some leave days to your employer. There is no legal right to take public holidays as time off or to be paid for them. However, this should always be a mutual decision, and can only be done with days that are surplus to the legal minimum of 4.8 weeks.

Your contract may also allow you to carry over some leave days into your next leave year. Again, this can only be done with days that are in addition to the legal minimum. However, until April 2009 you can carry over leave that is surplus to four weeks of your annual leave. You can carry over any entitlement that goes beyond the legal minimum if your employer agrees.

Public holidays

There is no legal right to take public holidays as time off or to be paid for them. However, most of us do get paid for public holidays through our contracts. If an employer is breaking your leave rights, it is worth talking to them first. As the law has changed recently, they may just be making a genuine mistake. Unfortunately, some employers deliberately cheat their workers out of their holiday pay. If your boss won’t pay up, you should talk to your union. The TUC’s Know Your Rights Line can put you in touch with an appropriate union if you want to join. Both legal and contractual holiday rights can be enforced by taking a case to an Employment Tribunal. However, get advice from your union or the conciliation service ACAS before making such a claim.

www.bbcnews.co.uk, December 9, 2008