The Government is currently under pressure to introduce further health and safety-related legal duties for individual company directors. If these proposals become law, employers who fall foul of the law could face a maximum penalty of two years in prison or an unlimited fine.

Back in 2007, the Health and Safety Executive (HSE) published guidance on many health and safety issues and announced that it would make a decision on the duties of directors in the spring of 2010. The new duties include public reporting of accident rates, specific paperwork requirements and the appointment of a director who is responsible for health and safety.

At present, individual directors are already held to account under section 37 of the Health and Safety at Work Act. This states that if the actions, neglect or connivance of a director is responsible for a company committing an offence, they are personally guilty of the offence themselves and can be prosecuted for it.

The manufacturer’s organisation EEF has launched a campaign against the introduction of these new practices, claiming that it would lead to an increase in paperwork and generate a culture of directors covering their backs which would be detrimental to industry. They believe the new measures would actually lower health and safety standards as it would divert resources away from practical protection.

Specifically, the EEF is campaigning for:

• The HSE to rule out imposing extra duties on individual directors.
• Sustained publicity and support to assist directors in meeting current health and safety requirements.
• For the existing law to be enforced proportionately and consistently.

The EEF published a report in February 2009 entitled “Leading the Way”, which it claims showed that 80% of directors already being involved directly in health and safety issues. Directors have become much more engaged in the area - 83% of directors now discuss health and safety regularly at board meetings compared to 55% three years ago.

Technorati Tags: EEF, Employment Law, Health and Safety

The coming year should see a number of new items of employment law legislation coming into force. Some of the changes will include:

• From February 1st, the cap on unfair dismissal compensatory awards will decrease from £66,200 to £65,300. The cap on weekly pay, which is used to calculate the basic award, will stay fixed at £380 until 2011.
• April will see the rate of statutory maternity, paternity and adoption pay increase from £123.06 to £124.88 per week. The earnings threshold will also be raised from £95 to £97 per week.
• April will also mark the introduction of the Apprenticeships, Skills, Children and Learning Act 2009. This Act will give employees a right to request unpaid time off from work for training. Only employees with more than six week’s service will be entitled to the right, and they must be able to demonstrate that the training they wish to undergo will improve the effectiveness of their work and the performance of the employer’s business. Only employers with more than 250 employees will have to consider such requests.

• In the spring, the so-called “fit notes” will be introduced through the Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) Amendment Regulations 2010. These will allow doctors to issue employers with more information about the condition of sick employees and what they can do to encourage them back to work.
• At some point in the year, the Government is expected to introduce new legislation to outlaw the blacklisting of employees for union membership or union activity.
• Most of the provisions of the Equality Bill are likely to come into force in October 2010 as the Equality Act 2010, and will attempt to harmonise discrimination law.

Technorati Tags: Employment Law, Employment Law Legislation, Equality Bill

Many employers use company cars as perks to their employees, but few actually know what the legal duties and responsibilities surrounding them actually are.

For example, most employees are unaware that if a company car is supplied solely for business use, when the employee is not at work - for example if they are on holiday, taking garden leave or on paid suspension - then their company car can be withdrawn.

However, when a car is supplied for private use, it becomes part of the employee’s contractual entitlement and so cannot be withdrawn in this way. It is also worth bearing in mind that company cars are taxable when supplied for private use if the employee using it is a director or earns more than £8,500 per year.

To avoid any ambiguity and ensure that both parties are aware of where they stand with regard to the company car, full details should be stipulated in the employee’s contract of employment. This should include the type of car that will be provided and when the car will be replaced.

Whenever an employee is off sick for any amount of time, the employer has no statutory duty to continue paying their wages or salary, although of course statutory sick pay must be paid.

When it comes to any car allowance that the employee is paid, however, the situation is different. If there is not a clear statement in the contract that car allowance will be suspended after a predefined period of sickness, the employee should impliedly expect the allowance to continue to be paid.

The employee may also be entitled to expect the allowance to continue if a custom or practice of paying car allowance while off sick has already been established in the company, i.e. if the allowance has been paid in the past.

Technorati Tags: Car Allowance, Company Car, Employment Law

A recent case has given an insight into the duty employers have to make reasonable adjustments in order to prevent discrimination against disabled workers.

In the case, Mr Alam left his place of employment early and without permission and was given a 12-month written warning.

He was later to bring a claim for disability discrimination against his employers (the Department of Work and Pensions), producing a doctor’s report which showed that, at the time, he had been suffering from depression, some of the symptoms were headaches, loss of concentration and losing his temper.

The Employment Tribunal that heard his case found that the fact that Mr Alam did not obtain permission before leaving his workplace was a symptom of his disability, and therefore the DWP had failed to make reasonable adjustment for him when it gave him the warning.

The DPW subsequently appealed, contending that, as it did not know that Mr Alam was disabled when it gave him the warning, it could not have expected to have made adjustments for his condition.

The Employment Appeal Tribunal upheld the DWP’s appeal. It noted that in cases such as this, a two-stage test was needed to determine whether or not the employee was exempt from making reasonable adjustments, namely:

1. Did the employer in question know that the employee was disabled and that their disability was liable to affect them in their work in the manner set down in the Disability Discrimination Act? If the answer to this question is no, then a further question must be asked;
2. Ought the employer to have known that the employee was disabled and that their disability was liable to affect them in the manner set out in the DDA?

Clearly in this case there was no way in which the employer could have or should have known about Mr Alam’s disability, so the appeal was duly upheld.

Technorati Tags: Disability Discrimination, Disability Rights, Discrimination Test

Mr Khan, a Muslim, lost his claims for equal pay and unfair dismissal in Reading in September 2008. He subsequently appealed to the Employment Appeal Tribunal (EAT), claiming that he had not had a fair trial.

On the third day of his hearing, he had requested that the case be adjourned to allow him to observe Ramadan. The request was refused, Mr Khan left the court and his case was dismissed in his absence. He argued that the court had made an error of law by refusing to give him a fair trial, in contravention of Article 6 of the European Convention on Human Rights.

His appeal was unsuccessful.

The EAT came to its decision after careful scrutiny of the exact details of the case. Mr Khan had been discovered by his employer accessing pornography and other inappropriate sites on his computer at work, and claims he had made alleging age and race discrimination were struck out because he had failed to provide information that the tribunal required.
He had previous hearings postponed on medical grounds despite the fact that no medical diagnosis had ever been offered, and he had also requested an adjournment because he was not ready which was turned down. Mr Khan had already been granted “specific break times each day for the purposes of prayer” during Ramadan.
The date for the hearing had been set on 29th May, which gave Mr Khan plenty of notice that it would overlap with Ramadan in September. Although Mr Khan had left the hearing on the third day, it was clear that the employment judge had carefully considered his 122-page witness statement in detail.
The EAT determined that the application for adjournment had been given “most anxious consideration”. The original tribunal’s reasoning on the matter was found to be sound, and the EAT could find no grounds on which they should interfere with the discretionary decision.
They noted with particular emphasis the fact that Mr Khan had failed “to take even the most basic steps to avoid a hearing being at a time which coincided with Ramadan”.

Technorati Tags: EAT, Ramadan, Unfair Dismissal

A number of high-profile companies in the UK - including Asda, British Airways and Macmillan Cancer Support - have lent their support to the Backing Young Britain campaign. The scheme is intended to help and support young people throughout the recession.

Yvette Cooper, the Secretary of State for Work and Pensions, explained: “We are determined to do everything we can to help the next generation of young people get ahead.

“If every one of the two million businesses across the UK could offer one single job, apprenticeship or training opportunity to a young person, then we could make a real difference and help young people get that all-important first foot on the career ladder.”

The new scheme is part of the Government’s £5 billion investment targeted at helping people get back to work. Under the scheme, every 18-24 year old who has been claiming Jobseeker’s allowance for over six months will be guaranteed a job, training or work experience.

John Wright, the National Chairman of the Federation of Small Businesses commented: “Small businesses are stepping forward as the key to tackling the challenge of youth unemployment. At least one in five says they are keen to take on graduate interns and the majority would like to take on an apprentice.

“Apprenticeships are vital for fostering skills. They can help make small businesses stronger and better equipped to survive the recession and help the economy recover. Research shows that one in four graduates are subsequently offered full-time employment - a win-win for both the business and the graduate”.

The CEO of Blitz Game Studios, Mr Philip Oliver, remarked: “When it comes to training and interns, we want to be a guiding light for industry. We have committed ourselves to developing our existing workforce and the next generation of staff, wherever they may be.”

Technorati Tags: Backing Young Britain, Employment Law, Yvette Cooper

Following recent investigations, thirty-eight agencies in the teaching and childcare sectors have received warnings from the Employment Agency Standards inspectorate (EAS) for failing to follow the law.

Alarmingly, 11 agencies were warned for not following the correct procedures when carrying out identity and qualification checks on people who they intended to supply for work. Swift action was taken by the EAS to change how the agencies implemented their checks and documentation processes, although no workers had yet been placed.

In total, 50 agencies were inspected as part of a national project called Operation Hazard. London, Birmingham and Newcastle-Upon-Tyne were amongst the cities targeted.

In the course of the operation, 140 breaches were found in total. While most were relatively minor, some of the worst practices discovered included:

• Failing to agree terms with workers before trying to find them work.
• Not obtaining all the relevant information from the hirer about the job.
• Failing to give important written information to the worker and/or hirer about the job, including who was to show up and carry out the work, and when and where they were supposed to be there.

Lord Young, the Employment Relations Minister, stated: “Agencies in the teaching and childcare sectors should be especially vigilant that they are meeting all of their responsibilities. It is important that children are not put at risk.”

“Follow up investigations will take place to make sure that the agencies concerned have acted to change their ways. Agencies that continue to disobey the law could be prosecuted, hit hard with unlimited fines or even banned from operating for up to 10 years.”

Technorati Tags: Agencies, EAS, Operation Hazard

Ms Parvianen worked for Finnair as an air hostess. After she fell pregnant, she was moved to work as ground staff in order to comply with health and safety regulations designed to protect mothers and their unborn babies.

After the change of position, she was paid a basic salary and allowance for ground staff, which effectively meant that her earnings dropped by around a third. Ms Parvianen argued that under the EC Pregnant Worker’s Directive and Finnish law, she was entitled to receive the same salary level as she had when working as cabin crew. The Finnish court referred the matter to the European Court of Justice.

The Advocate General accepted that Ms Parvianen’s role in the cabin crew exposed herself and her unborn child to health risks, and that Finnair had done its duty in transferring her to a different role. The core of the case was whether Article 11 of the Pregnant Worker’s Directive entitled her to the same level of pay she had enjoyed before.

The relevant passage of the Directive reads: “the employment rights relating to the employment contract, including the maintenance of a payment to, and/or entitlement to an adequate allowance for [pregnant workers], must be ensured in accordance with national legislation and/or national practice”.

The AG determined that the amount of payment pregnant workers receive should be a matter for each individual member state, and that the only requirement is that the payment should be “adequate”, meaning that it should be at least equivalent to the payment received by a male or female worker doing the same job.

She was not required by law to receive the same level of salary as she was on before her transfer. Allowances that a worker receives before they are pregnant that are related to their status, seniority or professional qualifications should continue to be paid, but any payments related to their old job do not have to be paid if they change to another job.

Technorati Tags: European Court of Justice, Pregnancy rights, Pregnant Worker's Directive

The recent case of the National Society for the Prevention of Cruelty to Children v Dear has brought to light an important point of employment law regarding what constitutes a punishment and what is a legitimate management instruction.

Mr Dear has been a social worker for over 30 years, and was employed by the NSPCC for 18 hours a week to man their helpline. Keeping an accurate record of calls was an important part of his position, and there had been some concerns about his ability in this area prior to an incident which occurred in August 2007.

The incident in question involved Mr Dear taking a call about a child who was at risk. Although he did make a note of the call, the entry was not signed or dated and his handwriting was illegible. He also failed to record the call on a special “child at risk” form, which was standard procedure.

As a result of this, Mr Dear was given a recorded oral warning, and the following two restrictions were imposed on him:

• All general calls he received would have to be noted on a special form and signed off by a Duty Manager.
• His notebook would be checked and signed at the end of each day by a Duty Manager to confirm legibility and that he had recorded all the salient facts.

These restrictions greatly aggrieved Mr Dear, who described them as being “infantising” and an “act of humiliation”. He submitted a formal grievance, and then resigned some hours later. He subsequently claimed constructive unfair dismissal, and an employment tribunal found in his favour.

The NSPCC appealed to the Employment Appeal Tribunal, and won the case. The EAT made it clear that when a worker fails to follow correct procedures, it is normal for an employer to insist on monitoring them. The monitoring is not a punishment or a sanction but a legitimate management instruction, and so is within the range of reasonable responses open to the employer in such a situation.

Given that the employer behaved reasonably, there could not have been a repudiatory breach of contract with Mr Dear which would have entitled him to resign and claim constructive dismissal. The NSPCC’s appeal was allowed.

Technorati Tags: Disciplinary measures, Legitimate management instruction, Unfair Dismissal

The recent case of Claramoda v Zoomphase has highlighted the importance of having a clear contract when entering into a commercial agency agreement.

Mr Claramoda acted as an agent for Zoomphase - a clothing supplier - for conducting sales to shops. He had been the sole agent for the supplier in the UK and Ireland since 1998. The agency was terminated at some point between October 2006 and January 2007 - the exact date of termination was in dispute, and was a key issue in the case, as the agent was seeking compensation under the Commercial Agents Regulations.

Under the regulations, a written claim for indemnity or compensation must be made within a year of the termination of the agency agreement. Mr Claramoda put in his request for compensation in November 2007.

The High Court determined that the effective date of termination in the case was January 2007, so the claim was within the specified time limit. Settling on this date was not a simple matter, as there was very little written documentation covering both the initial agency agreement and the termination itself.

The agreement was very informal, and many conditions had been left deliberately vague in order to give both parties more leeway. With regard to the termination, the date had not been clearly stated because although the supplier wanted to form its own in-house sales team, it still wanted to have the option to use the agent for one more season until their own team had been formed.

Although the main selling season had ended in October 2006, commercial activity between the two parties had continued beyond that date. An email was sent to the agent by the supplier in November regarding order information, and customer queries were forwarded on to the agent until January 2007, showing that the agent still had the authority to negotiate on the supplier’s behalf up to that date.

While the agent was not actually negotiating sales at this point, which is how the Regulations define the role of an agent, the Court ruled that he was still working on behalf of the supplier, and so the agency relationship was still in effect.

Paul Gershlick, a partner at the law firm Matthew Arnold and Baldwin LLP, explained: “This case highlights the importance of agreeing everything clearly in writing. Even if parties to a contract start off intending only to have good relations, this does not always turn out to be the case further down the line. That’s when the value of a good contract is noticed.

“There is a further reason for principals to have contracts with their agents: under the Commercial Agents Regulations, they may be worse off if they don’t stipulate in writing that the indemnity alternative applies rather than compensation - agents could be able to claim for more money on termination.”

Technorati Tags: Business Contract, Commercial Agency Law, COmmercial Agent Regulations