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

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.

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.

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.

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.

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.

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.

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.