Wednesday, 4 May 2016

MAY EDITION : EMPLOYMENT LAW NEWS

My periodic newsletter on all things employment law related that I think you should be aware of.
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Hello  Colleagues ,

This month has very few new employment law changes to report,  we've had enough to be going on with !     I thought that this month I would cover some recent tribunal decisions that don't always make the headlines, but do have a bearing on all of us.  Often,  employers may feel there has been a change in the law when something hits the twittersphere or trade journals,   the recent information about O/T  and commission being included in holiday pay for instance.    However,   mostly, it's because a case at the EAT or above has made a decision and that decision will affect lower courts on how they decide.   In employment law particularly,  case precedent is the rule.

  
             Read on for details, and, as always, call me or mail me if you have any concerns or need more information about this edition's content.

Kind regards,     Paul 
 

First The News:

Criminal Records Checking Service Still Unlawful
 
The High Court has ruled that the criminal records checking system is still unlawful, despite changes made in April 2013.  
The High Court has ruled that the criminal records checking system is still unlawful, despite changes made in April 2013. The system which, for certain roles, provides disclosure of spent convictions once a person has two or more convictions irrespective of how old the conviction is, amounts to a disproportionate interference with the right to a private life.

read the full piece on my blog page
 
 
 
Newsflash: 
 
Absence Triggers in Staff Handbook Incorporated into Employees’ Contracts


An employer had not been entitled to change the absence triggers in an absence management policy. The provisions were contractual and could therefore only be changed with the employees’ agreement.
Speedread
 
The Court Appeal has upheld a High Court decision that absence triggers contained in an employer’s absence management policy in the staff handbook had been incorporated into employees’ contracts. As a result, the employer’s imposition of new absence triggers was ineffective and the new triggers were not binding on the employees.

read full details on my blog page 

 

Dismissal Fair Where Employer Genuinely and Reasonably Believed Employee Had No Right to Work in the UK

An employer had been entitled to dismiss an employee whom it genuinely believed did not have the right to work in the UK.                          
An employer had been entitled to dismiss an employee whom it genuinely believed did not have the right to work in the UK. A dismissal in these circumstances can constitute some other substantial reason for dismissal and is potentially fair. The employer had made numerous attempts to establish the employee’s immigration status and the employee had persistently failed to cooperate.  

See full details on this on blog page

 Refusal to Extend Permanent Health Insurance Beyond 60 Not Age Discrimination

An employer did not discriminate on grounds of age when it ceased making permanent health insurance (PHI) payments to an employee who reached the age of 60.  
Speedread
An employer did not discriminate on grounds of age when it stopped making PHI payments to an employee at the age of 60 in accordance with terms of the PHI policy in force when she first claimed PHI benefits. The decision to stop benefits was the insurer’s, not the employer’s. There could therefore be no direct age discrimination by the employer.

read the full case issues on my blog page


 

Download of employee pay rates,  NMW, "living wage" and other benefit entitlements:


Additionally:
In you need further in depth help working out what exactly counts as minimum wage,  the DBIS has produced this 55 page guide,

"Calculating the minimum wage"     
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Health& Safety Myths

A light hearted look at some of the idiotic things we hear.
Case 307 All park benches must be replaced because they are 3 inches too low:

The reality

When we heard this story it really took us by surprise. How could there be health & safety law on this? The simple answer is, there isn't.
'It seems that the story originated from a decision by a facility manager and has no basis in health and safety law at all. There are no such bench height requirements and HSE will definitely not be sending our inspectors around measuring the benches!
Well, it looks like Britain's park benches will survive after all!

Case 309  Health and safety laws banned hanging baskets

 

Back in 2004 a town did briefly take down its hanging baskets over fears that old lamp posts would collapse. This was an overly-cautious reaction to a low risk.
However, after quick checks the hanging baskets were replaced and have been on lamp posts in the town every year since.
Despite this, the story continues to be repeated and the danger is someone will believe it is a genuine requirement and follow suit.

 The information contained in these pages is an HR overview and not intended to be comprehensive legal advice, always seek specific qualified advice before taking any action that could lead to litigation.   Equally, were we have provided links to external web pages, we are not responsible for the content of other sites.

Copyright © 2016 paul murray HR consultant, All rights reserved.
I send this to all my valued clients, colleagues and people I've actually spoken to, if you find this an intrusion, my apologies, please just unsubscribe.

Criminal Records Checking Service Still Unlawful


The High Court has ruled that the criminal records checking system is still unlawful, despite changes made in April 2013.       
Speedread
The High Court has ruled that the criminal records checking system is still unlawful, despite changes made in April 2013. The system which, for certain roles, provides disclosure of spent convictions once a person has two or more convictions irrespective of how old the conviction is, amounts to a disproportionate interference with the right to a private life.
Background
The general rule is that a person does not have to disclose their criminal record once their conviction is spent and employers cannot ask for spent convictions to be disclosed. However, there is an exception to this rule for certain jobs, including those working with children and those needing FCA approval. For those jobs, a standard or enhanced criminal records certificate will reveal all previous convictions, no matter what the offence or when it was committed. However, in April 2013 a change was made so that a single conviction for non-violent, non-sexual offences which did not result in a custodial sentence or a suspended sentence is not disclosed after 11 years (or 5.5 years if the person was under the age of 18 at the time of the offence). However, where a person has more than one conviction they are always disclosed on a standard or enhanced certificate. It is this rule that was the subject of a challenge in R (on the application of P) v Secretary of State for Justice.
Facts
The applicants both had two convictions for theft committed many years previously. One was seeking employment as a teaching assistant, which was proving difficult due to her convictions. The other worked as a finance director and was concerned that he might in future be required to disclose his convictions.
They sought a declaration that by requiring disclosure of all convictions for ever once a person has more than one conviction on their record, the criminal records checking system amounts to a disproportionate interference with the Article 8 right to respect for private life. They had minor convictions committed long ago which bore no relevance on their employment in any capacity today. This demonstrated the arbitrary nature of the disclosure provisions which left no room for discretion to be applied in any individual case.
The Secretary of State argued that any requirement of independent review of individual cases would be burdensome and impractical.
Decision
The High Court granted the declaration. It considered that in many cases, rules requiring indefinite disclosure of certain serious offences will not be seen as arbitrary, as such offences will clearly be relevant to anyone considering a person’s suitability for a sensitive post requiring an enhanced criminal records check. However, when the rules are capable of producing such questionable results on their margins, there ought to be some machinery for testing the proportionality of the interference with the person’s right to a private life. There was no rational connection between the interference with the claimants’ Article 8 rights and the aim of ensuring suitability for employment for the remainder of their lives across the entire range of activities covered by the exception to the general rule that spent convictions do not have to be disclosed.
The Home Office is considering whether there are grounds for appeal.
Implications
Employers who receive information about spent convictions (i.e. where the role falls within the exception to the general rule that spent convictions should not be disclosed) should not automatically rule out that candidate, unless there are sector specific regulations or guidance to the contrary. They should instead consider whether the conviction is relevant to the role, how serious it was, how long ago it was committed, the number of convictions, the circumstances surrounding the offence and any mitigating factors.

My thanks to  DOYLE-CLAYTON  for the piece from their excellent blog  :read more from them

Absence Triggers in Staff Handbook Incorporated into Employees’ Contracts


An employer had not been entitled to change the absence triggers in an absence management policy. The provisions were contractual and could therefore only be changed with the employees’ agreement.
Speedread
The Court Appeal has upheld a High Court decision that absence triggers contained in an employer’s absence management policy in the staff handbook had been incorporated into employees’ contracts. As a result, the employer’s imposition of new absence triggers was ineffective and the new triggers were not binding on the employees.
Facts
In Sparks v Department for Transport, the Department for Transport (DfT) was responsible for a number of agencies, each of whom had a staff handbook based on a standard form across the DfT. However, the number of days’ absence required before a formal absence process was triggered varied between agencies. The DfT wished to harmonise the absence triggers.
The handbook stated that Part A, which contained the absence management policy, was incorporated into employees’ contracts. It also provided that any changes to employees’ terms and conditions should be consulted upon with the union and if no agreement was reached, the DfT could only make unilateral changes if they were not detrimental to the employees. After failing to reach agreement with the union, the DfT imposed a standardised absence management procedure across the agencies.
The claimants applied to the High Court for a declaration. It ruled that whilst some sections in Part A of the handbook were meant as guidance and so were not suitable provisions for incorporation into the employment contract, the absence triggers in the absence management policy were sufficiently clear and precise to be incorporated. In addition, the changes were detrimental because employees could face sanctions at an earlier stage. The changes could not therefore be introduced without the employee’s agreement.
The DfT appealed.
Decision 
The Court of Appeal upheld the High Court decision. The wording in the handbook was sufficient to incorporate the absence triggers. The introductory wording stated that Part A was incorporated and the chapter on health stated that clause 10 (which included the absence triggers) set out the terms and conditions of employment relating to sick leave and to the management of poor attendance. The provisions also indicated that they were designed to confer a right on employees over and above good practice guidance contained in the policy sections of the handbook and they were therefore apt for incorporation.
There was therefore no reason to overturn the High Court’s decision.
Implications
Employers should think very carefully about which parts of the employee handbook, if any, are intended to be contractual and which are not, bearing in mind that they will not be able to change contractual terms without the employee’s agreement (unless there is a very clear contractual right to do so and even then it will not be easy). Procedural provisions and guidance are not suitable for incorporation in any event and will not be contractual even if they are stated to be.

 
My thanks to  DOYLE-CLAYTON  for the piece from their excellent blog  :read more from them

Dismissal Fair Where Employer Genuinely and Reasonably Believed Employee Had No Right to Work in the UK



An employer had been entitled to dismiss an employee whom it genuinely believed did not have the right to work in the UK.                               
Speedread
An employer had been entitled to dismiss an employee whom it genuinely believed did not have the right to work in the UK. A dismissal in these circumstances can constitute some other substantial reason for dismissal and is potentially fair. The employer had made numerous attempts to establish the employee’s immigration status and the employee had persistently failed to cooperate. The employment tribunal had therefore been entitled to conclude that the employer genuinely and reasonably believed that the employee did not have the right to work in the UK. When relying on this ground as a ground for dismissal, the fact that it turns out that the employee had the right to work in the UK does not render the dismissal unfair.
Facts
In Nayak v Royal Mail Ltd, Mr Nayak was dismissed because Royal Mail believed that he no longer had the right to work in the UK.
Prior to the expiry of his post study visa, Mr Nayak applied for a Tier 4 (General) student migrant visa. This was initially refused, but following a successful appeal to the immigration tribunal, his application returned to the Home Office for consideration and processing.
Royal Mail’s policy in circumstances such as this was to carry out immigration checks every six months. In March 2012, Royal Mail contacted the Home Office who confirmed that Mr Nayak had the right to work in the UK on the basis of an outstanding appeal. On 20 August 2012, 20 January 2013 and 17 February 2013, Royal Mail wrote to Mr Nayak asking him to provide updated proof of his right to work in the UK. He did not respond. He had written to the Home Office in April 2012 asking when his application was likely to be determined but received no reply and made no further enquiries.
In May 2013, in response to Royal Mail’s enquiry, the Home Office confirmed that as Mr Nayak had commenced employment prior to 29 February 2008, no further checks were required if, at the start of employment, current document checks had been carried out and copies kept on file. Royal Mail had not done this.
Between December 2013 and May 2014, Royal Mail made more intensive enquiries of Mr Nayak and warned him that failure to provide evidence of his immigration status may result in dismissal. On 8 May, he failed to provide the necessary documentation at a meeting and was dismissed by letter the next day. He appealed and Royal Mail gave him a further 42 days to provide the requested documentation. They also suggested that he make a subject access request to the Home Office as the Home Office would be obliged to respond. He did not do this and on 8 August 2014 the decision to dismiss was upheld.
Nr Nayak claimed unfair dismissal. The employment tribunal dismissed his claim and he appealed to the Employment Appeal Tribunal (“EAT”).
Decision
The EAT dismissed his appeal. A genuine and reasonable belief that an employee is not permitted to work in the UK can constitute some other substantial reason for dismissal and so can be a fair reason for dismissal. The employment tribunal had been entitled to conclude that Royal Mail genuinely and reasonably believed that Mr Nayak no longer had the right to work in the UK. It had made enquiries of the Home Office prior to dismissal, it had been unable to obtain up to date information directly from the Home Office, it had made repeated requests of Mr Nayak over a long period of time and he had persistently failed to cooperate by refusing to contact the Home Office. His failure to cooperate suggested that his immigration status may have changed. Royal Mail had taken reasonable steps to investigate the position and the appeals officer had gone to considerable lengths to give him an additional opportunity to make appropriate enquiries.
Implications
Establishing whether an employee has the right to work in the UK when a visa expires and an application for a new one is under consideration can be problematical for employers, as the facts of this case demonstrate. If they continue to employ an employee who has no right to work in the UK they face a £20,000 fine (and if they do so ‘knowingly’ a criminal offence is also committed which carries with it an unlimited fine and potential prison sentence).
If the employee actually has no right to work in the UK, it is possible to dismiss on the basis that continuing to employ them would be in breach of a statutory restriction. However, it is not possible to rely on this ground if it transpires that the employee did in fact have the right to work in the UK all along. If the employer relies on that ground in circumstances where the employee did have the right to work in the UK, the dismissal will be unfair.
This case is a useful reminder that it is possible to dismiss an employee fairly, based on a genuine and reasonable belief that the employee did not have the right to work in the UK, even if it that belief turns out to be wrong. However, care should be taken and advice sought as these types of cases concerning immigration status can be complex. Employers who find themselves in this situation should do their best to inform themselves of the employee’s immigration status by making full enquiries of both the employee and the Home Office and ensure that they warn the employee of the risk of dismissal before proceeding to dismiss.

My thanks to  DOYLE-CLAYTON  for the piece from their excellent blog  :read more from them

Refusal to Extend Permanent Health Insurance Beyond 60 Not Age Discrimination



An employer did not discriminate on grounds of age when it ceased making permanent health insurance (PHI) payments to an employee who reached the age of 60.  
Speedread
An employer did not discriminate on grounds of age when it stopped making PHI payments to an employee at the age of 60 in accordance with terms of the PHI policy in force when she first claimed PHI benefits. The decision to stop benefits was the insurer’s, not the employer’s. There could therefore be no direct age discrimination by the employer.
In addition, the employer’s decision not to extend a PHI policy it introduced in 2007 (which provided cover to age 65) was not direct age discrimination. The employee was already claiming under the previous policy and did not meet the conditions of the new scheme as she was not actively working immediately before beginning to claim.
Facts
In Smith v Gartner UK Ltd, Ms Smith was on sick leave and receiving payments under Gartner’s permanent health insurance (PHI) scheme. Gartner ceased making payments when she reached the age of 60. This was in accordance with the terms of the scheme in force when she first claimed benefits in 2003. Gartner had introduced a new PHI scheme in 2007 which covered employees up to the age of 65.
When her PHI payments ceased, Ms Smith claimed direct age discrimination. By not continuing her PHI payments beyond age 60, Gartner had treated her less favourably because of her age and its decision could not be justified.
The employment tribunal stuck out her claim and Ms Smith appealed to the Employment Appeal Tribunal (EAT).
Decision
The EAT rejected the appeal. The reason the payments ceased at 60 was because of the terms of the insurance policy in place when Ms Smith first began to claim PHI. Those terms were terms of the insurer, not Gartner. It therefore followed that the decision not to make payments beyond age 60 was not direct age discrimination by Gartner.
In addition, Gartner’s decision not to extend the PHI policy introduced in 2007 (which provided cover to age 65) to Ms Smith was not direct age discrimination. She could not benefit from the new PHI policy because she was already claiming under the previous policy. She did not meet the conditions of the new scheme as she was not actively working immediately before beginning to claim.
Implications
If an employer ceases to make PHI payments to an employee because the insurer’s terms provide for benefits to cease at that age, this will not amount to direct age discrimination by the employer. Likewise an employer is not obliged to transfer an employee already receiving PHI benefits to another PHI scheme which provides benefits to a later age. However, the decision in this case is in direct contrast to an employment tribunal’s decision (Whitham v Capita Insurance Services Ltd) and there may well be further developments in the law in this area.
Note that under the Equality Act 2010, employers are in any event able to cease offering PHI and other insured benefits at the age of 65 or state pension age, whichever is higher.


My thanks to  DOYLE-CLAYTON  for the piece from their excellent blog  :read more from them