Wright, Johnston & Mackenzie Solicitors

Right to request Flexible Working to be increased

Following an independent review, Gordon Brown has announced that the Government is planning to extend the right to request flexible working hours to all parents with children aged up to 16 years old. Currently, the right to request flexible working only applies to parents of children of up to 6 years old, or 18 if the child is disabled.

So far as we are aware, the Government has no plans to change the basis of the right to request. Employers will still be able to refuse a request for certain business reasons. An employee can bring a complaint to a Tribunal if they feel the reason given is unjustified. We will keep you updated as and when these changes become law.

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Agency workers to receive same rights as employees after 12 weeks

The Government announced on 20th May 2008 that they have agreed a ?fair? deal between the TUC and the CBI on extending the rights of agency workers. This deal, although not yet law, provides that agency workers must receive the equal treatment after 12 weeks with one employer.

In the announcement, equal treatment is defined as ?at least the basic working and employment conditions that would apply to the workers concerned if they had been recruited directly by [the employer] to occupy the same job.?

This ?agreement? between government, the trade unions and employers will not become law until an EU Directive is agreed ? currently the Directive seeks to provide equal rights after 6 weeks. The Government believes this deal can ?pave the way? to a consensus with the UK?s partners in the EU.

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Entitlement to Enhanced Redundancy Payment

In the recent case of Harlow v Artemis International Corporation Ltd it was decided that, even though an ?Enhanced Redundancy Policy? was not in the employment contract but in a staff handbook, it was still held to be an express contractual term and that the enhanced payment was due to the employee.

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Heartache Hurts

It was recently reported that a Japanese company has started to give employees ?heartbreak? leave. The leave is aimed at helping employees recover from romantic break ups. The company structures the leave depending on the age of the employee, with workers under 24 getting one day per year, 25-29 year olds getting two days and older workers getting three days. The reason for this is that it is thought to be easier for younger people to find the next partner so they will be less upset than their older colleagues.

In addition to this rather innovative policy, the employer also provides each employee two mornings off each year for shopping.

Sadly for the broken hearted, it would be hard for UK employers to instigate such a policy in the UK due to potential claims on grounds of age discrimination, as it would likely be seen as discriminating against younger employees. See the enclosed Discrimination Update for details of the up to date cases on age discrimination.

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?Simple? Sex Discrimination

A recent case that came before the Employment Tribunal in Kent shows a rather bizarre example of behaviour that amounts to sex discrimination.

A female employee who worked as part of a sales team experienced sexist remarks and toilet humour from her male colleagues. An example was the claim that women could not park their cars. In addition to the general team atmosphere, the employee?s line manager regularly ?broke wind? in her vicinity and direction and forced her to wear a badge that read ?I am Simple?.

The Tribunal awarded the employee ?5,146 under the Sex Discrimination Act. Although this case shows what would seem an unusual form of discrimination, it should also remind employers of their obligations under sex discrimination law for the behaviour of their employees to one another and for the behaviour of third parties too. Please see our most recent special briefing for more information, or contact one of the members of the Team.

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Controversial Decision on Uplifts

As most employers will know, if an employer breaches the statutory dismissal procedures, the Tribunal must increase any award by 10% and may increase it by up to 50%.

The question of the level of uplift was considered by the Employment Appeal Tribunal (EAT) in the recent Scottish case, McKindless Group v McLaughlin. At the Tribunal hearing, the employer admitted that they had breached the statutory procedures and defended the application only on the grounds of quantification of the claim. A finding of automatic unfair dismissal was made and the Tribunal uplifted the award by 50%. On appeal, the employer claimed that the Tribunal cannot award more than a 10% uplift in the absence of evidence on the reason for breach of disciplinary procedures. In addition, they claimed that the Tribunal cannot take into account the way the employer conducted the defence to the claim when deciding on the level of the uplift.

The employer?s argument found favour with the EAT which found that the Tribunal had fallen into error. The uplift of 50% was awarded because the employer had conceded that the disciplinary procedures had not been followed and because the employer only made that concession at the Tribunal hearing. The Tribunal accepted that the lateness of the concession meant that there was no time to negotiate settlement, although there was no evidence to support this.

The EAT said that before exercising it?s discretion to award an uplift of more than 10%, the Tribunal has to hear evidence before coming to the view that it would be just and equitable to do so. There was no such evidence in this case and, therefore, no findings of fact upon which the Tribunal could rely to exercise that discretion.

Practical Implications
This decision is binding on Tribunals. It produces the anomalous situation where an employer who deliberately flouts the procedures and then takes no part in the proceedings could not be subjected to more than a 10% uplift, whereas a well meaning but ignorant employer who tries to explain his error could be subject to a greater award. The Employment Team will keep you up to date on any future developments on this issue.

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Pacific or Caspian?

Recently, the statutory dispute resolution procedures instituted by the Employment Act 2002 received their most harsh criticism yet, when Lady Smith stated, in a recent Scottish EAT case, that they ?have provoked a sea of negative comment of Pacific rather than Caspian Proportions?.

The case in question was Clyde Valley Housing Association v MacAuley and it involved a letter of grievance. The Claimant resigned from her position with Clyde Valley Housing Association and it was agreed between the parties that the modified statutory procedure should apply. The Claimant?s solicitor wrote to the employer setting out a number of allegations. The employer sought to clarification of exactly what acts and conduct Mrs MacAuley was referring to. The clarification was not forthcoming so they wrote to say that they had been unable to address the grievance. The Tribunal held that the grievance procedure had been complied with and Mrs MacAuley won her case.

On appeal, the EAT held that the Tribunal could not entertain the claim unless Mrs MacAuley had sent something in writing to her former employer which set out a grievance and a basis for it. It was a ?threshold condition? that the letter should contain ?the answers to the essential questions that one would expect to arise in a grievance, namely: Who? What? Where? When? Why?? As the letter received did not contain these basic requirements, the EAT allowed the appeal and the claim was dismissed.

This case highlights the necessity for all parties to comply with the statutory procedures and also highlights the importance of grievance letters for both the employer and the employee. For more information, have a listen to our PodLaw! audio track ?Grief from Grievances? or contact a member of our Team.

Go to PodLaw!

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Government Implementation of Unified Tribunal Service

The Government plans to radically restructure the system of Tribunals, by introducing a two-tier system. This will consist of a First Tier and an Upper Tribunal. The Upper Tribunal will be a Superior Court of Record that will deal with onward appeals and judicial reviews. There will be five First Tier chambers and three Upper Tribunal chambers. The Government plans to have the first of these running on 3rd November 2008.

However, the Employment Tribunal and Employment Appeal Tribunal shall remain separate although closely linked to the new unified service.

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HMRC Releases helpful Guidance

HMRC has recently released a helpful guidance document, with worked examples, helping employers to come to grips with the recent changes to Statutory Maternity Leave brought about by the Sex Discrimination Act 1975 (Amendment) Regulations 2008. The notes cover issues of salary sacrifice and non-cash benefits and can be accessed at http://www.hmrc.gov.uk/employers/sml-salary-sacrifice.pdf

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Sikh Policeman wins second claim against the Metropolitan Police

A Sikh policeman, who had previously won a claim against the Metropolitan Police amounting to ?240,000 for racial discrimination, has won a further claim of ?70,000. He argued that the Metropolitan Police looked on him ?less favourably? for a promotion opportunity due to the previous claim brought against them.

Employers should keep this in mind if they have an employee who has previously taken them to tribunal.

If you want more information or would like discuss how you can make sure such a scenario does not occur for you please contact a member of our Team.

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Football Quotas

For those sad not to see one of the home nations being represented at the European Championships this summer, you may be interested to know that FIFA?s (F?d?ration Internationale de Football Association) recent proposal to introduce a quota system allowing only 5 foreign national players per club team has run into a European legal brick wall.

Under European law, the quota system would be viewed as discrimination on the grounds of nationality and so the European Commission has stated that it cannot be implemented in the EC.

UEFA (The Union of European Football Association) have also put forward proposals where a certain number of ?home grown? players would be necessary for a club to be able to compete in UEFA competitions. ?Home grown? would, however, mean any nationality. The EC has, tentatively, let this one slip through its defensive shield, as it believes that this proposal would only discriminate indirectly and would, therefore, be allowed if justified as a proportionate means to achieve a legitimate aim.

The Employment Team will be sure to keep you informed of the final score.

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WJM Employment Club

For those of you who were unable to attend the June meeting, you can now read Martin Stephen?s Discrimination Update which was presented at the meeting.
Go to Discrimination Update

Future meetings will be held on 13th August, 8th October and 10th December in our Glasgow office. If you would like to attend the next meeting, please contact Emma McNeil by email to .(JavaScript must be enabled to view this email address) - or by telephone on 0141 223 7280.

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Would you like this Briefing by email?

We strive constantly to improve the services we provide. If you would prefer to receive this Briefing by email please let us know on .(JavaScript must be enabled to view this email address)

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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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