Restaurants are following the letter of the law in implementing new rules on tipping, which are designed to boost wages for waiting staff, but many are ignoring the spirit of the legislation and charging staff an administration charge for tips left on credit cards.
It’s a move that’s earning negative publicity amongst customers for many of the bigger chains, and employment law advisers are reporting concerns amongst smaller local restaurants on how to manage the change.
Under the new legislation, which was introduced in October, any business which passes on tips and service changes to staff has to match up to new rules under the national minimum wage.
Until recently employers were allowed to treat tips and service charges as part of an employee’s pay for the purposes of the national minimum wage (NMW) provided they were paid to the employee through the payroll and the amounts were shown separately on the employee’s payslip.
But following a review by the Government, gratuities are no longer allowed to count and employers must ensure that all employees receive current national minimum wage before adding on tips or service charges.
Said Alan Lewis, head of employment law with Manchester lawyers, George Davies Solicitors LLP:
“As well as tackling the minimum wage, the Government review also flagged up concerns that the tips and service charges collected are not being distributed to employees in full, and called for greater transparency from employers and for them to demonstrate a fair tipping policy.
“Whilst employers generally seem to be up to speed on implementing the legislation, many are interpreting the law as tightly as possible and seeing where they can hold down increased costs.”
“It’s a balancing act for restaurant owners and others in the hospitality sector,” Alan added. “The new rules equate to an average rise in wages of around 10% for the average restaurant which is not good news when fewer people are already eating out, but I think for many restaurateurs we are working with, keeping their good name is as important as following the letter of the law.”
Monday, 16 November 2009
Monday, 14 September 2009
Possible £1m age discrimination payout
John Wooster was dismissed from his job as a senior consultation officer in the housing department of Tower Hamlets in December 2006. This was seven months before his 50th birthday.
As a result, he had to wait until he was 65 to claim his pension. However, if he had remained in employment until after his 50th birthday, he could have claimed the pension almost immediately.
An employment tribunal found the council had unfairly dismissed Mr Wooster, who had worked for Tower Hamlets for 33 years, and discriminated against him because of his age.
Tower Hamlet failed in its appeal against the age discrimination ruling.
See the report in the London Evening Standard.
As a result, he had to wait until he was 65 to claim his pension. However, if he had remained in employment until after his 50th birthday, he could have claimed the pension almost immediately.
An employment tribunal found the council had unfairly dismissed Mr Wooster, who had worked for Tower Hamlets for 33 years, and discriminated against him because of his age.
Tower Hamlet failed in its appeal against the age discrimination ruling.
See the report in the London Evening Standard.
Thursday, 27 August 2009
When is the termination date?
An employee’s dismissal took place on the date she read a letter informing her of her summary dismissal, not the date that the letter was written, posted or delivered.
That is the effect of the The Employment Appeal Tribunal (EAT) case of Gisda Cyf v Barratt [2009] EWCA Civ 648.
At a disciplinary hearing on 28 November 2006, the employer sent the employee home and advised that a letter concerning possible dismissal would be sent that week. The employee went on holiday. The employer’s letter was sent by recorded delivery on Thursday 30 November 2006 and was signed for on the employee’s behalf. The employee telephoned home but did not ask about the letter. She came home on the Sunday night and opened the letter on Monday, 4 December 2006.
Her claim for unfair dismissal would only have been brought within the three-month time limit if her effective termination date was Monday, 4 December 2006, the day she opened the letter.
The EAT upheld the tribunal’s decision that it had jurisdiction to hear the claim, relying on the doctrine that termination is only effective when communicated.
The decision may have been different had the employee deliberately gone away to avoid receiving the letter or had deliberately avoided opening it.
That is the effect of the The Employment Appeal Tribunal (EAT) case of Gisda Cyf v Barratt [2009] EWCA Civ 648.
At a disciplinary hearing on 28 November 2006, the employer sent the employee home and advised that a letter concerning possible dismissal would be sent that week. The employee went on holiday. The employer’s letter was sent by recorded delivery on Thursday 30 November 2006 and was signed for on the employee’s behalf. The employee telephoned home but did not ask about the letter. She came home on the Sunday night and opened the letter on Monday, 4 December 2006.
Her claim for unfair dismissal would only have been brought within the three-month time limit if her effective termination date was Monday, 4 December 2006, the day she opened the letter.
The EAT upheld the tribunal’s decision that it had jurisdiction to hear the claim, relying on the doctrine that termination is only effective when communicated.
The decision may have been different had the employee deliberately gone away to avoid receiving the letter or had deliberately avoided opening it.
Sunday, 19 July 2009
Removing the 65 retirement age is discriminatory
The UK default retirement age set at 65 is under attack. The UK Government has announced that it intends to bring forward the date of review of that age from the original planned review date of 2011 to 2010.
The general view is that the 65 retirement age will be either raised or scrapped.
In the writer's view, either outcome would amount to age discrimination. How can that be? To remove a barrier would open up choice for employees to work until they and no-one else decided was appropriate.
That is one view. The contrary view, which I hold, is that to allow staff to continue until they are good and ready to go deprives the younger element of society of the opportunity to obtain work.
That in iteself would amount to age discrimination.
The general view is that the 65 retirement age will be either raised or scrapped.
In the writer's view, either outcome would amount to age discrimination. How can that be? To remove a barrier would open up choice for employees to work until they and no-one else decided was appropriate.
That is one view. The contrary view, which I hold, is that to allow staff to continue until they are good and ready to go deprives the younger element of society of the opportunity to obtain work.
That in iteself would amount to age discrimination.
Tuesday, 14 July 2009
Equal pay and TUPE transfers
The Court of Appeal has today handed down its decision in Gutridge v Sodexo . The case concerns equal pay rights where women are subject to a TUPE transfer .
The Court of Appeal confirms that:-
1. claims for equal pay losses accumulated during employment up to the date of transfer of the undertaking to the transferee, must be brought against the transferee within 6 months after the date of the transfer; and
2. claims for losses after the date of the transfer can proceed against the new employer (the transferee) for up to 6 years running from the date of the claim. Claims must be issued within 6 months of the termination of that employment.
This has important implications for businesses. For example, it is vital that employers who are taking over public sector service contracts appreciate that they will continue to be liable for any equal pay claims long after the transfer has taken place – in fact for so long as the employees transferred remain employed. The value of those claims will be based on the earnings of comparators who were employed by the public authority before the transfer took place.
Link to case:
http://www.bailii.org/ew/cases/EWCA/Civ/2009/729.html
The Court of Appeal confirms that:-
1. claims for equal pay losses accumulated during employment up to the date of transfer of the undertaking to the transferee, must be brought against the transferee within 6 months after the date of the transfer; and
2. claims for losses after the date of the transfer can proceed against the new employer (the transferee) for up to 6 years running from the date of the claim. Claims must be issued within 6 months of the termination of that employment.
This has important implications for businesses. For example, it is vital that employers who are taking over public sector service contracts appreciate that they will continue to be liable for any equal pay claims long after the transfer has taken place – in fact for so long as the employees transferred remain employed. The value of those claims will be based on the earnings of comparators who were employed by the public authority before the transfer took place.
Link to case:
http://www.bailii.org/ew/cases/EWCA/Civ/2009/729.html
Wednesday, 24 June 2009
Male "piggy back" equal pay claim succeeds
If, for instance, male A and female B do the same jobs on £9 an hour and B is successful in claiming that she does work of equivalemnt value to male C so that her pay is adjusted (and backdated) to £11 an hour, the same as C's pay, male A can successfully claim £11 an hour using female B as the comparator and A can have it backdated as well.
That is the effect of the Employment Appeal Tribunal decision in the recent case of McAvoy and others v South Tyneside Bororugh Council and others.
Here is a link to the full report :
http://www.employmentappeals.gov.uk/Public/Upload/08_000608_005708_005808_016808_0276rjfhJOCEA.doc
That is the effect of the Employment Appeal Tribunal decision in the recent case of McAvoy and others v South Tyneside Bororugh Council and others.
Here is a link to the full report :
http://www.employmentappeals.gov.uk/Public/Upload/08_000608_005708_005808_016808_0276rjfhJOCEA.doc
Parental leave - revised Framework Agreement
The European social partners have signed a revised Framework Agreement on parental leave on 18 June 2009.
This is the first step towards enacting a new directive on parental leave.
The key points in the agreement are that it:
· increases parental leave from three to four months for each parent. One month cannot be transferred between parents;
· applies to all workers, no matter what their type of contract (fixed-term, part-time, temporary, etc.);
· allows parents who return from parental leave to request a change to their working conditions; and
· increases protection against dismissal and any unfavourable treatment as a result of taking parental leave.
It is believed that there will no obligation for parental leave to be paid.
The next step in the process is for the European Commission to examine the agreement. They can then submit a proposal to the Council for a directive to implement it. For the proposal to be adopted, the Council requires a qualified majority.
This is the first step towards enacting a new directive on parental leave.
The key points in the agreement are that it:
· increases parental leave from three to four months for each parent. One month cannot be transferred between parents;
· applies to all workers, no matter what their type of contract (fixed-term, part-time, temporary, etc.);
· allows parents who return from parental leave to request a change to their working conditions; and
· increases protection against dismissal and any unfavourable treatment as a result of taking parental leave.
It is believed that there will no obligation for parental leave to be paid.
The next step in the process is for the European Commission to examine the agreement. They can then submit a proposal to the Council for a directive to implement it. For the proposal to be adopted, the Council requires a qualified majority.
Friday, 19 June 2009
Beware easing staff out after holiday leave case
The recent House of Lords decision in Stringer v HMRC means that employees who accrue holiday leave entitlement whilst absent for ill health reasons can claim payment in lieu of untaken holiday going back several years as unlawful deductions from wages.
Some HR managers have expressed opinions that this will lead them to manage out staff on long term ill health absence at an earlier stage than might otherwise have been the case.
This would be a dangerous plan. Employees who face such treatment may well have claims for compensation for unfair dimisssal and (in cases where they are disabled within the definition of the Disability Discrimination Act 1995) discrimination.
Some HR managers have expressed opinions that this will lead them to manage out staff on long term ill health absence at an earlier stage than might otherwise have been the case.
This would be a dangerous plan. Employees who face such treatment may well have claims for compensation for unfair dimisssal and (in cases where they are disabled within the definition of the Disability Discrimination Act 1995) discrimination.
Thursday, 18 June 2009
Soical network sites: a hunting ground for employers
A recent DWP survey has revealed that one third of businesses now use online resources such as LinkedIn, Facebook and Twitter to help them maximise their knowledge of potential employees.
The speed of technological advancement appears to outstrip the pace of cultural change. Many individuals simply do not realise what effect their online persona may have on their career prospects.
There are always two sides to a story and if we flip the statistic referred to above we find that two thrids of businesses have failed to spot the opportunities presented by LinkedIn and other sites in terms of HR value. There never has been a more relevant time to adopt an attitude of flexibility. Employers must be alive to opportunities. They are coming thick and fast as the speed of technological advancement quickens....that is, coming to those of us who keep our eyes wide open.
If you are not alive to the new horizons, find somebody who is and align with them.
The speed of technological advancement appears to outstrip the pace of cultural change. Many individuals simply do not realise what effect their online persona may have on their career prospects.
There are always two sides to a story and if we flip the statistic referred to above we find that two thrids of businesses have failed to spot the opportunities presented by LinkedIn and other sites in terms of HR value. There never has been a more relevant time to adopt an attitude of flexibility. Employers must be alive to opportunities. They are coming thick and fast as the speed of technological advancement quickens....that is, coming to those of us who keep our eyes wide open.
If you are not alive to the new horizons, find somebody who is and align with them.
Monday, 15 June 2009
Avoid notice pay on ill health absence dismissals
An often overlooked provision is that part of the Employment Rights Act whose effect is that the employment of a long term absent ill health employee can be terminated by paying no monies in lieu of notice where the contactual notice period is at least one day longer than the statutory minimum notice period. At most this can save an employer 12 weeks' pay.
The trick is to draft the contract so as to provide that "notice of termination to be given by the employer to the employee shall be the employee's statutory minimum period of notice plus one day."
The employer still needs to be careful to follow a fair procedure before deciding to dismiss, otherwise the employee may well have an unfair dismsisal claim. In cases where the employee satisfies the definition of "disabled" under the Disability Discrimination Act 1995, the employer needs to take care to avoid a situation which might lead to a discrimination claim.
The trick is to draft the contract so as to provide that "notice of termination to be given by the employer to the employee shall be the employee's statutory minimum period of notice plus one day."
The employer still needs to be careful to follow a fair procedure before deciding to dismiss, otherwise the employee may well have an unfair dismsisal claim. In cases where the employee satisfies the definition of "disabled" under the Disability Discrimination Act 1995, the employer needs to take care to avoid a situation which might lead to a discrimination claim.
Wednesday, 10 June 2009
House of Lords decide for workers in holiday pay case
The House of Lords has today overturned the Court of Appeal and decided in favour of the workers in the long-running Stringer v HMRC case.
The decision means that a claim for (a) unpaid holiday under regulations 13 and 16 of the Working Time Regulations, or (b) a payment on termination under regulation 14 can be brought as an unauthorised deduction claim as well as under the Working Time Regulations.
The important effect is that a worker can benefit from the more generous time limits which apply to unlawful deduction claims. These claims can be brought within three months of the last in a series of deductions.
This means that a claim can cover non-payments or underpayments of holiday pay going back more than three months if the underpayments form part of a series of deductions.
The decision means that a claim for (a) unpaid holiday under regulations 13 and 16 of the Working Time Regulations, or (b) a payment on termination under regulation 14 can be brought as an unauthorised deduction claim as well as under the Working Time Regulations.
The important effect is that a worker can benefit from the more generous time limits which apply to unlawful deduction claims. These claims can be brought within three months of the last in a series of deductions.
This means that a claim can cover non-payments or underpayments of holiday pay going back more than three months if the underpayments form part of a series of deductions.
Tuesday, 9 June 2009
New powers to enforce tribunal awards
There are new measures from the Ministry of Justice designed to ensure that people who have been granted awards by an Employment Tribunal receive the money they are owed for transgressions by their employers, such as those relating to unfair dismissal, workplace discrimination and equal pay.
The Ministry’s research showed that only 53% of the people surveyed had received their awards in full, while a staggering 39% had not received any money at all. As a result, the High Court Enforcement Officers have been empowered to take on responsibility for ensuring that such awards are paid. This means that they can remove goods from a business that fails to settle its debt, including stock, plant, machinery and office equipment.
For many businesses, this is likely to cause more disruption to their activities than the financial penalty itself, as well as having a powerful negative impact on its reputation.
There are, of course, cases when an employer feels aggrieved by the size of award made against them. Under these circumstances, there is a clear procedure under which they can appeal against the penalty.
In such cases, we can help employers present their case effectively at the Employment Appeal Tribunal. If this is your situation, please contact me on 0161 234 8812 or email me alanlewis@georgedavies.co.uk for further advice. Under no circumstances, however, should any business simply ignore an award made against them.
The Ministry’s research showed that only 53% of the people surveyed had received their awards in full, while a staggering 39% had not received any money at all. As a result, the High Court Enforcement Officers have been empowered to take on responsibility for ensuring that such awards are paid. This means that they can remove goods from a business that fails to settle its debt, including stock, plant, machinery and office equipment.
For many businesses, this is likely to cause more disruption to their activities than the financial penalty itself, as well as having a powerful negative impact on its reputation.
There are, of course, cases when an employer feels aggrieved by the size of award made against them. Under these circumstances, there is a clear procedure under which they can appeal against the penalty.
In such cases, we can help employers present their case effectively at the Employment Appeal Tribunal. If this is your situation, please contact me on 0161 234 8812 or email me alanlewis@georgedavies.co.uk for further advice. Under no circumstances, however, should any business simply ignore an award made against them.
Wednesday, 3 June 2009
GP "Fit Notes"
So we have now seen a publication of the proposed form of Fit Note to be issued by GPs instead of sick notes.
There is a consultation period until August, then the way will be paved for the new fit notes to be introduced.
What will be their effect? In theory, it will help businesses get staff back to work from ill health absence. At present the sick note just denotes an illness and a period of fixed absence. There is no indication from the GP about what the employee is capable of doing, say light duties. To elicit more information now, the employer needs to get consent from the employee under the Access to Medical Records Act to approaach the GP for a report.
Will fit notes short circuit this route? I ssupect not. All very much depends on how GPs will react. Will they, for example, have enough information to assess what work duties the employee is capable of? Will they indeed have sufficient time at a short GP appointment to compile a view on an extent of fitness to work? Or will it make for an easier life to simply say the employee is not capable of carrying out any work duties? Time will tell.
There is a consultation period until August, then the way will be paved for the new fit notes to be introduced.
What will be their effect? In theory, it will help businesses get staff back to work from ill health absence. At present the sick note just denotes an illness and a period of fixed absence. There is no indication from the GP about what the employee is capable of doing, say light duties. To elicit more information now, the employer needs to get consent from the employee under the Access to Medical Records Act to approaach the GP for a report.
Will fit notes short circuit this route? I ssupect not. All very much depends on how GPs will react. Will they, for example, have enough information to assess what work duties the employee is capable of? Will they indeed have sufficient time at a short GP appointment to compile a view on an extent of fitness to work? Or will it make for an easier life to simply say the employee is not capable of carrying out any work duties? Time will tell.
Tuesday, 26 May 2009
Diversity quotas for public sector contracts
Earlier this month, the Equalities Minister, Harriet Harman announced that she intends to impose diversity quotas that organisations must meet if they are to secure lucrative public sector contracts.
This could be seen as another burden for businesses, but the real question is will they work?Some say that there is a risk that imposing them may fuel animosity towards minority groups, where the perception might arise that those from minority groups have only been awarded jobs to fill diversity quotas – not because they are qualified and equipped to do the job.
Could it be that businesses may in some instances have to recruit less able or qualified candidates because they happen to fit diversity quota profiles? Some HR managers believe that putting people into roles before they are ready may undermine that person's confidence and actually hinder their career progression in the long term.
This could be seen as another burden for businesses, but the real question is will they work?Some say that there is a risk that imposing them may fuel animosity towards minority groups, where the perception might arise that those from minority groups have only been awarded jobs to fill diversity quotas – not because they are qualified and equipped to do the job.
Could it be that businesses may in some instances have to recruit less able or qualified candidates because they happen to fit diversity quota profiles? Some HR managers believe that putting people into roles before they are ready may undermine that person's confidence and actually hinder their career progression in the long term.
Sunday, 17 May 2009
BNI Annual Conference, MAGNA, 14th May 2009
What a great event this was. I estimate there were more than 700 delegates, which made networking a breeze. I met about 20 contacts, some of whom can help me to find new work and others who I have already referred to members of my BNI chapter (http://www.bolton-bni.co.uk/).
The speakers were good. Allan Pease providied a very entertaining look at body language and in particular why women differ so much from men in beghavioural terms.
The speakers were good. Allan Pease providied a very entertaining look at body language and in particular why women differ so much from men in beghavioural terms.
Wednesday, 13 May 2009
Managing Disputes & Conflict in the Workplace
Many thanks for the wonderful contribution of all who participated in and supported our GD/HR seminar today at HSBC, Spinningfields, Manchester.
For more details, go to:
www.gdhr.info
For more details, go to:
www.gdhr.info
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