employment law news - February 2010 - print version
Court of Appeal confirms teacher's right to legal
representation at internal disciplinary
The Court of Appeal has confirmed that a male teaching assistant
who was accused of kissing and having inappropriate contact with a
15 year old boy is allowed to be represented by a lawyer at the
school's internal disciplinary appeal hearing. G had applied to the
High Court when the school told him he could only be represented at
the disciplinary hearing and appeal by a colleague or trade union
representative. He argued that under article six of the
European Convention on Human Rights (ECHR) he was entitled to be
represented by a lawyer at the appeal because the school's decision
in the disciplinary process was a "determination of his civil
rights" under the ECHR, since a dismissal would be reported to what
is now the Independent Safeguarding Authority (ISA), which has the
power to bar him from teaching. The school argued that the ISA made
its own separate decision and therefore G's civil rights were not
at stake in the disciplinary hearing and appeal.
The Court of Appeal disagreed with the school. It found that the
outcome of the school's disciplinary appeal would have a
substantial influence or effect on the ISA's decision as to whether
or not G should be included on the children's barred list. There
would not be a complete rehearing before the ISA. His right to
practise his profession, which was a civil right to which
article six of the ECHR applied, would be directly at stake in
the ISA's decision making process. Therefore the disciplinary
proceedings would determine his right to practise his profession.
On the facts of G's case, article six entailed the right to be
legally represented at the disciplinary hearing. Although this
decision is somewhat limited to its facts, employers receiving
requests for legal representation at disciplinary hearings should
consider each request and, where the outcome might prevent an
employee from practising their profession, take our advice.
guidance on Right to Request Time off for Training
The Department for Business, Innovation and Skills (BIS) has
announced the publication, via Business Link, of guidance
on the new Right to Request Time off Work for Training being
introduced from 6 April 2010. The right was introduced under the
Apprenticeship, Skills, Children and Learning Act 2009, and will be
incorporated into the Employment Rights Act 1996. Employers with
250 or more employees will be affected from 6 April while smaller
employers will be affected from April 2011. Eligible employees are
those who have 26 weeks' continuous service when they make the
request (there are certain groups not eligible for the right, such
as young workers of compulsory school age or who already have a
right or duty to undertake study or training).
Employee requests can be to undertake accredited programmes
leading to a qualification, or for unaccredited training to help
them develop specific skills relevant to their job, workplace or
business. Employees have to set out certain information about the
proposed study or training and how they think it would improve
their effectiveness in the employer's business and the performance
of the business. The administrative process is very similar to the
process for dealing with flexible working requests and the Act sets
out permissible grounds for refusal. Only one request may be made
per year (unless there have been certain changes) and employees
have the right not to be dismissed or subjected to a detriment on
grounds of making or proposing to make an application for time off.
Larger employers need to start thinking now about introducing or
amending policies, administrative processes and training sessions
for managers in relation to the new right. Whilst the legislation
does not give the right to time off, only to
request time off, employers will need to watch out that they are
consistent in their responses, clear about how pay and benefits
will be treated, and have balanced criteria for assessing whether
productivity and business performance will be improved by the
training.
new rates for statutory maternity, paternity and adoption pay
from April 2010
The new rates of statutory maternity pay (SMP), statutory
paternity pay (SPP) and statutory adoption pay (SAP) have been
announced to take affect in April. For payment weeks starting on or
after 4 April 2010, the standard rate of SMP, SPP and SAP, known as
the prescribed rate, rises from £123.06 per week to £124.88 per
week. For SMP, this rate (or 90% of earnings, whichever is the
lower) applies for up to 33 weeks after the first six weeks.
The first six weeks are paid at 90% of earnings. SPP
applies for up to two weeks and SAP for up to 39 weeks, both
at the prescribed rate or 90% of earnings, whichever is the
lower.
In order to be eligible for SMP, SAP, and SPP, employees must
earn at least the National Insurance Lower Earnings Limit (LEL) in
the eight weeks running up to and including the 15th week before
the baby is due or, in the case of adoption, the eight weeks before
the notification of the adoption match is given. From 6 April 2010
the LEL will rise from £95 per week to £97 per week.
Statutory Sick Pay (SSP) will remain £79.15 per week for
2010/11. The new rates of SMP, SPP, SAP and SSP have yet to be laid
before Parliament.
Please find on our website publications page our 2010 Handy
Fact Card, which contains these and other useful employment law
facts and figures.
tribunal could decide compromise agreement unenforceable due to
misrepresentation
A recent case has arguably made it easier for employees to claim
that a compromise agreement signed by them is unenforceable because
of a misrepresentation by the employer. Normally such claims have
to be brought in the County Court or High Court with the applicable
costs regimes, but in this case the Employment Appeal Tribunal
(EAT) decided that the Employment Tribunal (ET) itself could
determine that a compromise agreement was unenforceable. Mrs
Vincent reached a compromise agreement with her employer and on
that basis she unconditionally withdrew an ET claim she had made. A
month later her employer entered creditor's voluntary liquidation
and the payments under her compromise agreement were not made. Mrs
Vincent applied to the ET to set aside the compromise agreement on
the basis that the employer must have known they were not going to
be able to comply with the payment.
When the employer appealed, the EAT decided that the Employment
Tribunal – rather then the County Court – could consider her claim
on the basis that the ET has to ensure that a valid compromise
agreement has been reached. "Valid" means not only in the sense
that it complies with the strict requirements in the Employment
Rights Act 1996 relating to compromise agreements, but also in the
sense that it has not been reached on the basis of a
misrepresentation. The result is significant given the fact that
the employee is not exposed to the same costs or delay as they
might be in the County Court or High Court. Employers need to
ensure they are not making any misrepresentations when negotiating
and concluding compromise agreements (which is conceivable with,
for example, redundancy dismissals). The case also highlights the
need for compromise agreements to be properly drafted each time on
the basis of the individual case, even when they might seem
straightforward.
dress code not discriminatory
A trainee police officer who claimed that the requirement for
him to cut his shoulder-length hair was discriminatory on grounds
of sex has failed in his appeal to the Employment Appeal Tribunal
(EAT). Mr Dansie commenced training in the police force in 2008. He
had previously asked whether his shoulder length hair would be
acceptable, and he was told that it would comply with the dress
code. When he started training he wore his hair slicked back and
tied in a bun on the back of his head, but was told to have his
hair cut and threatened with disciplinary action if he did not
comply. He complied but presented a tribunal claim that he had been
discriminated against and/or harassed on grounds of sex. His
employment tribunal claim failed.
The parties agreed that a female recruit in similar
circumstances would not have been required to cut her hair. In
considering Mr Dansie's appeal, the EAT confirmed that the question
is whether, applying contemporary standards of conventional dress,
the employer is asking employees to display an equivalent level of
smartness between the sexes. A difference in treatment between the
sexes on one aspect of the dress code does not necessarily
constitute more or less favourable treatment. The Tribunal had been
entitled to find the dress code equally balanced between the sexes
and the treatment of Mr Dansie was not less favourable. A female
who failed to comply with the dress code necessary for this
disciplined service would have been treated in the say way as Mr
Dansie: she would have been ordered to comply or face disciplinary
action. In the circumstances of the findings about the dress code,
this did not amount to harassment under the Sex Discrimination Act
1975.
consultation on Equality Bill Codes of Practice
The Equality and Human Rights Commission (EHRC) has commenced
further consultation on draft Codes of Practice relating
to the Equality Bill currently going through Parliament. The Bill
is currently in the committee stage in the House of Lords and is on
course to receive Royal Assent by April. Whilst the draft Codes
will be subject to any changes made by Parliament, the intention of
the EHRC is that the Codes should be available as soon as possible
(they will be laid before Parliament in the summer) to give
employers time to prepare for implementation in October this year.
The three draft Codes being consulted on are on (1) employment, (2)
equal pay and (3) services, public functions and associations. The
consultation closes on 2 April 2010.
amendment to Equality Bill concerning recruitment health
questionnaires
A late amendment to the Equality Bill has been put forward in
the House of Lords to deter employers from asking candidates
questions about their health until they have shown they meet some
of the non-health criteria of a job. It is argued that many
employers use pre-employment questionnaires to discriminate against
people who declare a disability before selection for interview or
other stages. Exceptions would be made where enquiries are in order
to make reasonable adjustments to enable a disabled person to
participate in the recruitment process, for monitoring diversity in
job applications, and for supporting positive action. Employers
would be able to screen people about their health once a job offer
has been made in order to make reasonable adjustments or where
necessary withdraw the offer, provided this can be properly
justified. Employers who ask health or disability-related questions
before the job offer stage might be required to prove to an
employment tribunal that they did not discriminate if the
individual did not get the job.
regulations on additional paternity leave and pay
Regulations on additional paternity leave and pay have been laid
before Parliament, coming into force on 6 April 2010. However they
will have effect only for parents of babies due on or after 3 April
2011 (or notified of an adoption match with a child after that
date). As specified previously by the Government, the eligibility
criteria in relation to childbirth are that:
- the employee has 26 weeks' service at the end of the 15th week
before the expected week of childbirth and is still employed the
week before the intended leave
- the employee is the child's father, or is married to, is the
partner of, or the civil partner of, the child's mother
- the employee expects to have responsibility for the upbringing
of the child
- the employee has complied with the notification
requirements
- the child's mother is entitled to statutory maternity leave,
pay or maternity allowance and has returned to work
- the child's mother has signed a declaration specifying certain
information
Additional paternity leave (APL) may only be taken after
the child is 20 weeks old. The minimum period of leave is two
weeks, and the maximum is 26 weeks, which must be taken in blocks
of one week and in one continuous period. The notification
requirements are that, eight weeks before the intended APL start
date, the employee must supply the employer with details about the
child's due date and birth date, the intended period of leave, a
declaration as to eligibility and the mother's declaration. The
employer is entitled to request a copy of the birth certificate and
details of the mother's employer or place of business.
The regulations set out similar requirements which apply in the
case of adoption. They also specify what may happen in the event
that the employee wishes to vary or cancel APL. As in the case of
maternity leave, the employee will be entitled to keeping in touch
days. Separate regulations set out the entitlement to additional
paternity pay which is dependant on the mother or primary adopter
having been entitled to SMP, Maternity Allowance or SAP.
Agency Workers Regulations laid before Parliament
The Agency Workers Regulations 2010 have now been laid before
Parliament, amid criticism that they are being rushed through
before the election despite not coming into force until October
2011. Following a second round of consultation at the end of last
year, the Regulations (which give agency workers the right to equal
treatment with their directly recruited counterparts after they
have completed a 12 week qualifying period) have undergone a number
of changes since the consultation draft. Changes include new
provisions which seek to prevent avoidance of the Regulations
where, for example, a worker is moved between roles to prevent him
or her completing the 12 week qualifying period, and revision of
the definition of "pay" to clarify the types of bonuses it
includes. Our Recruitment sector group which specialises in
this area has produced a detailed bulletin on the Regulations.
updated legislation timetable
Our legislation
timetable has recently been updated to reflect forthcoming
changes and those recently in force.
