Wright, Johnston & Mackenzie Solicitors

Change in Immigration Law will affect employers

By the end of 2008, employers will no longer need to submit applications for work permits as the Government is now implementing its new points-based system for employing migrant workers.

Under the new system, employers wishing to employ migrant workers will need a licence before they can sponsor foreign employees. This licence will give the employer access to the Government sponsorship system, allowing the employer to issue a sponsorship number to the foreign worker it plans to employ.

For further more detailed information on how to obtain a licence and how the new points based system will work please contact the Employment Team.

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Employee banter can cause problems

A recent case at the Employment Appeals Tribunal (EAT) suggests that the Sexual Orientation Regulations (SORs) may not properly implement the provisions of the EC Equal Treatment Framework Directive.

In the case of English v Thomas Sanderson Blinds Ltd, an employee brought tribunal proceedings against his employer claiming that he had been subject to homophobic sexual innuendo and harassment from co-workers. The harassment and innuendo had occurred even though Mr English was not homosexual and his co-workers were aware of this.

The EAT held that, because of the wording of the Regulations, he was not entitled to protection. However, the EAT went on to consider the case of Equal Opportunities Commission v Secretary of State, a sex discrimination case similar to Mr English?s case. In that case, the Court held that, because UK legislation could not be construed in line with an EC directive, it needed to be amended. The EAT held that this conclusion should apply equally to sexual orientation discrimination. The SORs prohibit harassment ?on the grounds of sexual orientation? and the directive prohibits unwanted conduct ?related to? sexual orientation. The EAT stated that, if the Directive wording could have been directly relied upon, there may well have been a different result for Mr English.

If the employee?s Appeal to the Court of Appeal is not successful, it follows that the SORs will require to be redrafted.

Practical Implications
This highlights the responsibility that employers have for the conduct of their employees. If the SORs are redrafted, employers should be aware that this will give protection from conduct relating to sexual orientation. This may also have an impact on the Regulations relating to Age and Religion or Belief. Employers should be aware about how their employees interact with each other and, as a matter of good practice, they should give guidelines on what types of behaviour will not be tolerated in the work place.

For further information on how to develop work place policies and best practice please contact a member of the Employment Team.

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Employers must consider ill-health retirement when dismissing employees

In the case of First West Yorkshire Ltd t/a First Leeds v Haigh, the employee was a bus driver with 30 years service. He suffered a suspected stroke, was signed off sick and had his driving licence suspended for 12 months.

In these situations, where the employee could not fulfil his or her role, the employer?s practice was to consider alternatives. If none were found then the employee would either be dismissed or retired on medical grounds. By retiring the employee, the employer would make up the additional credit for the reckonable years of service.

The employer was unable to classify the illness as permanent or temporary, and gave the employee two options (1) the employee would be dismissed or (2) the sick pay would be extended for 11 months after the original medical incident, and the employee would be retired 5 months after this date on the condition that they would not apply for the company ill-health pension. The employee refused both options and was subsequently dismissed.

The Tribunal, and subsequently the EAT, were critical of the employer and held that the employer?s insufficient consideration of the medical evidence and attempt to minimise ill-health retirement costs meant that the dismissal was unfair. It was unreasonable for the company to force the employee to make the choice presented to him, given that it had no evidence of the permanence of the medical condition.

Practical Implications
Employers should be aware that, when dealing with employees who are sick and who are entitled to certain pension provisions, they should give due care and attention to the medical evidence. When seeking to terminate the employment of employees who have suffered or are suffering long-term ill health, employers must be careful and adhere to best practice guidelines at all times.

For further information on how to deal with employee on long term sick and the various implications of ill-health pension provisions please contact us.

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New Legislation

There are a number of pieces of legislation taking effect on 6th April 2008. The following are the relevant pieces that affect employment law:

Sex Discrimination Act 1975 (Amendment) Regulations 2008
Under these Regulations, employers will be held to have subjected female employees to harassment if a third party harasses her while she is doing her job and the employer does not take reasonable steps to stop this harassment from occurring. An employer shall only be liable if they do not take action and are aware of at least two previous incidents of harassment. A more detailed briefing is enclosed.

Corporate Manslaughter and Corporate Homicide Act 2007
This Act allows organisations to be prosecuted for failures of management in the event of the death of an employee or another individual.

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Bad reference leads to hefty sum

A social worker working for South Tyneside Council was awarded ?36,000 after she lost her job due to an unfair reference provided by the Council. Mrs Merriott-Brown had successfully applied for a job as Family Court Advisor, and was offered the post on the condition that a satisfactory reference was received from her current employers. Mrs Merriott-Brown had named a previous line manager as her referee as her current line manager was due to be absent from work. The reference given was negative, and the job offer was subsequently withdrawn. Prior to this reference being given, Mrs Merriott-Brown was unaware of any concerns held by her employer about her performance.

The event left Mrs Merriott-Brown feeling ?humiliated and angry? and she was signed off sick for six months due to stress-related issues arising from the issue.

She brought a claim and was awarded the ?36,000 to compensate her for loss of pay whilst off sick and for loss of future earnings.

Practical Implications
As can be seen by this case, the giving of a reference that is unfair can have repercussions for an employer. The following guidelines are taken from the online Praesidium Manual and give guidance to help with reference drafting:

  Set out a clear policy on references and who can give them. Ideally, all references should be given by an appropriate senior manager in the employing organisation. Indicate whether the referee has personal knowledge of the employee.

  Decide whether simply to confirm employment details or give a full reference including an assessment of work and character

  Never refuse to provide references as an act of retaliation against an employee who has previously claimed discrimination

  Treat all requests for references equally and avoid discrimination

  Ensure that all statements are based on fact

  Mark all references confidential

  Do not give oral references

  Establish prior to the ending of a worker?s employment whether or not he/she wishes the company to provide references or not

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Double Tax Loophole Closed

The Government has closed a potential loophole which gave HM Revenue & Customs (HMRC) the opportunity to charge tax twice. The case of Demibourne v HMRC allowed HMRC to charge an employer the full tax and NI contributions where an employee has been mistakenly identified as self-employed. This has been closed by the Income Tax (Pay As You Earn) (Amendment) Regulations 2008.

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New Legislation to Prevent Illegal Working

Last month we updated you on the introduction of new measures aimed at preventing illegal working in the UK. The Asylum and Nationality Act also removes the exemption of TUPE transfers from the law on illegal working. It means that, within 28 days of any transfer of an undertaking the same documentation procedures must be completed. This involves checking of documents such as passports, national identity cards or residents permits. It is unlikely that warranties and indemnities will be sufficient as they will not protect from any potential criminal prosecution. In these circumstances, we would suggest that document procedures be carried out both before and after completion.

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Statutory Maternity Pay overlapping into Additional Maternity Leave: effect on contractual terms

Since last year, there is an overlap of Statutory Maternity Pay into the Additional Maternity Leave period. Most employment benefits are suspended during Additional Maternity Leave.

However, with the overlap of Statutory Maternity Pay into Additional Maternity Leave, the Social Security Act 1989 now applies. The part of the Act which is relevant is Schedule 5 which relates to equal treatment of men and women in Employment Related Benefit Schemes (ERBS). The Act states that during “paid maternity absence”, rights under these schemes must continue.

ERBS are defined as schemes that offer service related benefits in the form of pensions or otherwise payable in respect of:

(i) Termination of service;
(ii) Retirement, old age or death;
(iii) Interruptions of service by reason of sickness or invalidity;
(iv) Accidents, injuries or diseases connected with employment;
(v) Unemployment; or
(vi) Expenses incurred in connection with children or other dependants;

Employers should be aware that during the 13 weeks of Additional Maternity Leave where Statutory Maternity Pay is payable, employees are entitled to the continued benefit of ERBS.

If you may be affected by these changes, please contact the Employment team to discuss your options.

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Further Information

For further information on these or any other employment issues please contact:

Martin Stephen .(JavaScript must be enabled to view this email address) 0141 248 3434

Andrew Wilson .(JavaScript must be enabled to view this email address) 0131 221 5560

Liam Entwistle .(JavaScript must be enabled to view this email address). 0141 248 3434

For information on our HR Services, please contact:

Julia MacDonald .(JavaScript must be enabled to view this email address) 0141 248 3434

For information on Praesidium Employment Law Protection, please contact:

Martin Stephen .(JavaScript must be enabled to view this email address) 0141 248 3434

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