The employment law team at Pinsent Curtis Biddle answer questions onworkplace issuesStatement of terms and conditions Q: I have heard of a caserelating to the statement of terms and conditions of the employee. We use themto set out the contractual terms for our employees – should we? A: No. We advise clients thatthey should additionally use comprehensive contracts of employment issued atthe stage of offer and acceptance of the job. The case is Lovett v Wigan Metropolitan Council. The Court of Appeal heldthat the terms and conditions discussed during an employee’s interview andcovered in a subsequent letter formed a contract of employment. Contrary to theemployer’s arguments, the statutory written particulars and appended documentsthat were issued following commencement of the employment relationship wereheld to not form part of the contract. An employee has the right to receive a written statement of the substantiveterms and conditions from the employer within two months of starting work butthis is not intended to carry contractual force. In Lovett it was found thatthere was no evidence that the employee had it properly made clear to him thathis career progression depended on “he needs of the department”.Although this condition was contained in the statutory written particulars, itwas not in line with what had been agreed orally and confirmed in the offerletter and therefore could not form part of the contract. Lovett does not mean that there is new law for employers to grapple with,but it is a reminder of how the courts regard the statement of particulars – asa statutory obligation and not a contractual document. Christopher Booth Compromise Agreements Q: Is it true that it isgoing to be more difficult to rely on a compromise agreement in the future? A: In one sense, yes. Thedecision in BCCI (In compulsory liquidation) concerned the interpretation ofcompromise agreements signed by ex-staff of the bank, via Acas. Inconsideration for one month’s salary and after an interview with an Acasofficial, the employees signed an agreement stating that the payment was: “…in full and final settlement of all or any claims whether understatute, common law or in equity of whatsoever nature that exist or may existand in particular, all or any claims, rights or applications of whatsoevernature that the applicant has or may have or has made or could make in or tothe industrial tribunal, except the applicant’s rights under the respondent’spension scheme”. The House of Lords held that this wording did not preclude the employeesfrom proceeding with claims for “stigma” damages arising from the collapseof the bank and their dismissal. The court did not intend to frustrate the parties’ intentions but in theabsence of clear language, it will be “very slow to infer that a partyintended to surrender rights and claims of which he was unaware and could nothave been aware”. Lord Nicholls described the signing of a compromise agreement as an”informal release” and this would seem to be at odds with the factthat it is a legally binding agreement under statute. He also stated that thewording of the agreement would probably not be sufficient to have compromised aclaim for underpayment of wages. Martin Brewer Race and “national origin” Q: What is the latestposition on “national origin” under the Race Relations Act? A: In BBC Scotland v Sousterit was held that the Race Relations Act covers discrimination against anindividual on the basis that he or she is English. Under the Act’s definitionof national origin, the Scots and English are separate racial groups. The situation arose in this case because Souster was English and had beenemployed as a presenter of a Scottish television programme. His contract wasnot renewed and a Scottish woman was appointed in his place and he argued thathe had been discriminated against on racial grounds. The Court of Session said that the Act was applicable in this situation bydeciding that the issue of “national origin” should not be restrictedby the nationality test, which would not serve to distinguish between theScots, Welsh, English or Northern Irish. The employment tribunal to which thecase has been returned will now decide Souster’s case. Geoff Tyler Holiday entitlement Q: Are employees going to beable to claim their holiday entitlement under the Working Time directive fromDay One of their employment? A: Many are aware that UKworkers do not acquire the right to four weeks of annual paid leave until theyhave been working for thirteen weeks. However, the Advocate General of theEuropean Court maintained in Bectu v UK that the 13-week qualification periodis unlawful. The right to paid leave is “an automatic and unconditionalright granted to every worker” and there is no provision within thedirective that makes it subject to the 13-week period. The Advocate General even went so far as to say that the Working Timedirective “precludes” national legislation from making the rightsubject to a qualifying period. It remains to be seen whether the EuropeanCourt will follow this. Ashley Norman Transfer of Undertakings Q: What is the latestEuropean Court case law on transfer of undertakings? A: The European Court case ofAyse Suzen in 1997 indicated that there must be, for a transfer, a transfer ofsignificant tangible or intangible assets or, alternatively, in alabour-intensive function, a taking over by the new employer of a major part ofthe workforce in terms of numbers and skills. British courts have given many recent decisions flying in the face of theseconditions finding a transfer without either condition being satisfied. But thelatest ECJ case in Oy Liikenne Ab v Liskojarvi and Juntunen (Case C-172/99, 25January 2001) indicates that the European Court is still proceeding with itshard line. In this case, there was a transfer of bus operators operating bus routes inHelsinki. Most of the staff were taken on but not the majority of buses. TheEuropean Court held that this was an asset reliant undertaking and the merefact of taking over of a major part of the workforce was not a conclusivefactor and therefore, since the buses were not (in the main) transferred, therewas no transfer of an undertaking. This indicates the very stark contrast between the more liberal approach totransfers in Britain and the tests laid down by the European Court. New Tuperegulations due later this year are urgently needed to clarify the confusion. Dr John McMullen National Head of Employment Law Pension rights and part-time workersQ: We employ many part-timersand are concerned about the situation with regard to pension rights. Can youexplain what the position is?A: Many employers areconcerned about the position of part-time workers’ pensions following thedecision by the House of Lords in Preston. There are three key elements to the decision: the six-month limitationperiod, the position of employees on fixed-term contracts and the two-yearrestriction on backdating claims. The six-month limitation period is set out in the Equal Pay Act and was opento challenge if the House of Lords found that it was less favourable thansimilar domestic limitation periods. The House of Lords found that theprocedural rules under the Equal Pay Act were not overall less favourable thanthose governing breach of contracts claims which are subject to a six-yearlimitation period. This means that claims presented more than six months afterthe termination of the applicant’s employment will be statute barred.Where there are successive fixed-term contracts concluded at regularintervals in respect of the same employment to which the same pension schemeapplied, resulting in a stable employment relationship then the limitationperiod will only start to run from the end of the employment relationship. Ifthis stable employment relationship cannot be shown, then the limitation periodwill run from the end of each separate contract.Employers cannot rely on the Equal Pay Act to defeat a claim for periodsprior to the two years being taken into account. Successful applicants willtherefore have the right to their future pension benefits calculated byreference to periods of service subsequent to 8 April 1976 (the date when theECJ first held that Article 141 could be relied on directly by individuals). Thiswill be subject to the employee paying contributions he or she owed for therelevant period. This will be important in contributory schemes, particularlywhere the contributions are relatively high. This will not be a deterrent foremployees in non-contributory schemes or where the contributions are low. Itmay still be possible – even if indirect discrimination is made out inprinciple – that the discrimination is justified on grounds other than sex. Men who work part-time may also be entitled to retroactive membership ofpension schemes if their female colleagues are found to be indirectlydiscriminated against. Robert Mecrate-Butcher Questions and answersOn 1 Apr 2001 in Personnel Today Previous Article Next Article Comments are closed. Related posts:No related photos.
TheLiberal Democrats will champion equality in the workplace if elected.DrVincent Cable, spokesperson on trade and industry, said the Lib Dems would passa comprehensive Equality Act to tackle discrimination on grounds of race, sex,religion, sexual orientation, disability, age or gender identity.Toset best practice on tackling the gender pay gap, a Lib Dem government wouldimplement the findings of the Bett report into higher education.Hesaid, “This will address the unacceptable situation of significant paydifferentials between male and female academics.”Additionally,the Lib Dems would support recent European anti-discrimination legislation andin particular Article 13 of the Treaty of Amsterdam. Whilethe party has pledged to introduce a charter to control the influence ofBrussels, it would sign up to the EU directive on information and consultation.Cablesaid, “Workers should have a statutory right to consultation over keybusiness decisions affecting their future, such as factory closures andredundancies.”TheLib Dems support work-life balance practices, providing funding arrangements tosupport further parental leave. “We support a partially funded parentalleave scheme with contributions shared by employers, employees and governmentfor those below a defined income threshold.”Workforcetraining is an important part of the Lib Dems’ bold approach to boosting publicservices through higher taxation. “Wewill give every 16 to 24-year-old the right to publicly funded tuition up to aninitial Level 3 nationally recognised qualification. Skills and academic-basededucation and training must be accepted as of equal, if different, worth.”Theyare also critical of the amount of red tape Labour introduced for employers. Manifesto:at a glanceTaxand the economy– 1p on the basic rate of income tax to fund £3.5bn education programme– 50 per cent top rate of tax on earnings over £100,000, generating £4.6bn– Changes to capital gains tax, raising £2bnBusiness– Equality in workplace act– Improved workforce consultationEducation– Recruit 5,000 new secondary school teachers– Abolish university tuition feesHealth– Recruit 32,100 nurses, midwives and doctors– Raise nurse’s annual pay by £1,000Constitution– Proportional representation for voting at General elections– Referendum on joining the euroEurope– New charter limiting the EU’s power– Referendum on the poundCrime– Increase police numbers by 6,000 on last year– Additional incentives to retain experienced officerswww.libdems.org.uk Previous Article Next Article Related posts:No related photos. Comments are closed. Champions of the workplaceOn 22 May 2001 in Personnel Today
Workaholics anonymousOn 1 Oct 2001 in Personnel Today Comments are closed. Previous Article Next Article Cityworkers in London and New York seem unable to enjoy their summer holidays,reveals a study carried out by global financial recruitment specialist MorganMcKinley. Thesurvey of 970 employees from London, Dublin and New York reveals that 50 per centof Londoners do not take their full holiday allowance, compared to just 34 percent of New Yorkers. Inaddition, 23 per cent of Londoners have had to end their holiday earlier thanplanned to return to work, compared with only 12 per cent of those across theAtlantic. YetLondoners are more determined to take a complete break from the office, withonly 14 per cent saying they take work on holiday with them, and 48 per centclaiming they would never contact their office while on holiday. In comparison,26 per cent of the US respondents take work on holiday with them and 67 percent remain in contact with their office throughout their time away. Source:www.citipeople.com Related posts:No related photos.
Line managers make or break changesOn 6 Nov 2001 in Personnel Today Line managers can make or break attempts to improve public services,according to the director of people and development for the Audit Commission. Trish Longdon said the Government’s election pledge to transform publicservices had placed the public sector under increasing pressure to change. She told delegates that HR must inform line managers of what theirorganisation wants to improve and why change is necessary. She said, “We have to communicate. What matters to people is what theirmanager tells them. We have to engage managers and they have to engage theirstaff. Our line managers can make or break change.” Longdon explained that managers need to be trained and developed if radicalimprovements to the way services are delivered are to be achieved. “If you do not invest in change not just money but people’s time, itwill not happen,” she said. She stressed that transformation of public services needs to be supported bystrong leadership and a commitment throughout the organisation to see theprocess through. “There is an abundance of evidence which shows that if you set targetsand then ignore them so will everybody else,” she said. Longdon told delegates to focus on what areas they want to improve and nottry to improve all service areas at once. “People who understand people development and understand their staffshould be involved at a strategic level when polices are being developed,”she said. Comments are closed. Related posts:No related photos. Previous Article Next Article
Related posts:No related photos. Enter this year’s Personnel Today AwardsOn 5 Mar 2002 in Personnel Today Department for Work and Pensions Award for Age Positive at Work AwardBy 2006 legislation will be in place outlawing age discrimination at work, but many companies have recognised the business case for good age-positive policies and are already reaping the benefits. If your organisation is one of these, then you should waste no time in entering the Age Positive at Work Award for 2002 and get the recognition you deserve. The award will be presented to an organisation that can demonstrate or is committed to achieving Age Positive practices in the workplace. The judges will be looking for examples of best practice in the various stages of the employment process from recruitment and selection, training and development, through to promotion. Applicants are encouraged to submit case material, examples of company literature or details of age-friendly initiatives focusing on one or more of the above employment strategies. Comments are closed. Previous Article Next Article
This week’s news in briefSecond class cuts Consignia is to shed a further 17,000 jobs after announcing yearly losses ofmore than £1bn. The troubled firm, currently losing £1.2m a day, is to slash30,000 jobs over the next three years to try and return the company toprofitability. Most are due to plans to scrap the second post. www.consignia.comTUC’s stress law call The TUC is calling on the European Parliament to introduce new laws onstress and RSI in the workplace. It wants to see a set of Europe-wide targetsfor the reduction of workplace injuries, illnesses and sickness absence. Unionofficials are also scathing about the 80 per cent reduction in specialist staffat the EU that has left just 24 people running the health and safety system forthe whole of Europe. www.tuc.org.ukHeads do not know Headteachers often don’t realise how much they are spending on recruitingteachers, research reveals. A survey by Select Education Permanent finds morethan 40 per cent had placed three or more adverts for the last teaching jobthey tried to fill, with one-fifth spending more than £500 per advert. However,45 per cent of respondents did not know how much the whole process cost. www.selecteducation.co.ukCar cash alternative More than half of all companies now offer eligible employees the choicebetween a company car or cash allowance, according to research. A survey of 700companies by consultants Watson Wyatt shows that 57 per cent of firms now offera cash alternative to a company car, compared to 46 per cent in 2000 and 38 percent in ’98. www.watsonwyatt.comSector skill initiative The Sector Skills Development Agency has launched a new campaign toencourage employers to become involved in the Sector Skills Councils. TheGovernment agency is hoping to raise awareness of SSCs among HR, training andbusiness leaders through the six-week advertising blitz. www.ssda.org.uk Comments are closed. Related posts:No related photos. Previous Article Next Article … in briefOn 18 Jun 2002 in Personnel Today
Comments are closed. Amendment to code removes need for policeOn 16 Jul 2002 in Police, Personnel Today Companies will no longer have to involve the police if they want to covertlymonitor employees, under the latest data protection draft monitoring codepublished last week. The Information Commission’s previous draft stated that employers would needto involve police in all covert monitoring, but its latest version of the codepublished on its website gives organisations much more freedom on the issue. Under the new draft organisations only have to inform the police whencovertly monitoring staff in areas they have “a high expectation ofprivacy”, such as toilets or individuals’ offices. The commission has also introduced a requirement for employers to carry outan ‘impact assessment’ before any staff monitoring to determine if it isnecessary and how it should be carried out. The CBI believes the code still does not give employers enough rights whencovert monitoring. Legal adviser at the CBI Susannah Haan said: “Is a glass wall a privateoffice? Even a private office is part of the business.” David Smith, assistant commissioner at the Information Commission, said thechanges to the draft followed concerns highlighted by employers on the issue. “Members at the consultation said even for serious criminal offencesthey may want to deal with them internally,” he said. Previous Article Next Article Related posts:No related photos.
Comments are closed. Previous Article Next Article Line managers provide the crucial link between HR and delivering businessperformance. This was the key message from the People Mean Business seminar, based on thelatest CIPD research on the link between people management and businessperformance at the Royal United Hospital in Bath and Nationwide BuildingSociety. John Purcell, professor of human resource management at the University ofBath, said it is impossible for progressive HR policies to have an impactunless line managers and team leaders actually apply them in practice. “The degree to which line managers engage their staff and degree towhich they are trusted by their staff is crucial,” he said. Angela Hayday, formerly the associate director of leadership development atthe RUH, said the hospital’s cardiology department has managed to improve allaspects of staff satisfaction despite the poor publicity the hospital attractedafter receiving a zero star rating from the NHS. She believes most of the improvement is the result of better line managementputting HR polices, such as flexible working, into practice. The hospital has extended its leadership programme to all members of staffto develop people management skills after a pilot scheme among ward sistersproved effective. Staff appraisals have also been adapted to include 360-degreefeedback. The staff survey shows that following the moves its employees believe theyhave a better balance between work and home, are more motivated and have ahigher opinion of managers. Julia Wallace, nurse manager at RUH, told delegates it was vital that staffwith line management responsibilities are given the skills to help themmotivate and manage their staff effectively. By Ben Willmottwww.cipd.co.uk Line managers buy-in is crucial to HR’s deliveryOn 29 Oct 2002 in Personnel Today Related posts:No related photos.
Previous Article Next Article Theemployment law firm that represented a car saleswoman awarded £178,500 indamages for sexual discrimination after one week in employment has defended thesize of the payout.Anemployment tribunal awarded the sum to Angelica Graham, 23, after she wasphysically and verbally sexually harassed at Beadles car dealers in Sevenoakswhere she worked for a week as a trainee in June 2001.Thetotal damages amounted to 20 years’ salary at her then-income. It brought anoutcry from some industry experts who fear the rise in ‘compensation culture’is crippling business.However,Gerald Newman, solicitor practice director at Cloisters, said that the extentof the harassment had devastated Miss Graham and the award was not out of linefor what the courts would normally award in psychological injury cases.Hesaid the payment covered injury to feelings, injury to health, costs of care,loss of earnings and aggravated damages because of the seriousness of thesexual harassment.”Anysensible employer will have written procedures regarding equality and whatshould happen if there’s any kind of bullying. This is a big payout, butwarning shots need to be fired at employers sometimes,” he added. Comments are closed. Related posts:No related photos. Law firm defends compensation payoutOn 8 Jul 2003 in Personnel Today
Previous Article Next Article Comments are closed. Related posts:No related photos. The Communication Workers Union (CWU) has ignored a last -ditch appeal fromthe Royal Mail’s head of HR to call off its strike over London weighting,planned for tomorrow. In a letter from Tony McCarthy, head of people and organisationaldevelopment at the Royal Mail, to Dave Ward, deputy general secretary of theCWU, McCarthy stressed there was no more money in the pot to boost London-basedsalaries. “We do not have additional money to meet the union’s claims for afurther increase in London weighting,” McCarthy stated. “Thissituation will not change if the union decides to take industrial action; thereis no more money.” The CWU is due to call a 24-hour walkout tomorrow after London union membersvoted for industrial action over London weighting allowance by 11,417 votes to4,316. The union has demanded an across-the-board rise of £4,000 in contrast to anoffer from the Royal Mail of £2,667 a year in outer London, and £3,784 forinner London. The walkout follows a decision by staff not to back a national strike over aproposed 14.5 per cent pay rise over 18 months. McCarthy went on to call for both sides to take a less confrontationalstance during negotiations, and appealed for the re-engagement of partnershipworking. “It is important that representatives from both the Royal Mail and theCWU demonstrate a professional and respectful approach on all occasions, and wetherefore need to discuss and agree this approach,” he wrote. “We allknow that both sides have some way to go before this is achieved.” However, the CWU appeared to distance itself even further from the company,stating that its claims that only four out of 10 postal staff supported strikeaction were “advanced nonsense” based on “the mathematics ofGeorge Orwell’s worst nightmares”. By Michael Millar CWU set to go through with Royal Mail strikeOn 30 Sep 2003 in Personnel Today