Forthcoming seminar -
reserve your place!
We are holding a
half-day seminar on the "Latest trends in employee
benefits". This seminar brings together our
experts on employment law, pensions and share
plans to discuss and explain recent and expected
future market developments and some of the legal
issues involved. It will take place on 9
October 2007 - just click here
to reserve your place.
Applying the statutory
dismissal and disciplinary procedures
The Employment Appeal
Tribunal (EAT) has confirmed that the statutory
dismissal procedure does not require an employer
to notify an employee of his or her right of
appeal in writing. In addition, when approaching
the question of the uplift in compensation for
failure to follow the statutory procedures, the
tribunal should have regard only to the failure to
follow the statutory procedure and not to any
other matters.
In Aptuit
(Edinburgh) Ltd v Kennedy, the tribunal had
held that failing to notify an employee in writing
of her right to appeal against her dismissal was a
breach of the statutory procedures and that her
dismissal was therefore automatically unfair. The
EAT confirmed this was not the case. It stated
that the requirement is merely to notify the
employee of the right to appeal, and therefore
oral communication is sufficient (although it is
advisable to provide this notification in the
dismissal letter). The EAT also confirmed that the
employer was not, as the tribunal held, in breach
of the statutory procedures because it did not
"offer" the claimant an appeal. Whilst the
employee must have the fact of the right of appeal
communicated to him, it is for the employee to
inform the employer that he wants to appeal.
If a tribunal finds
that a dismissal is automatically unfair following
a failure to follow the relevant statutory
procedure, it must uplift the award of
compensation by 10% (unless there are exceptional
circumstances) and may, if it considers it just
and equitable in all the circumstances to do so,
increase the award by up to 50%. In this case, the
tribunal increased the award by 40%, based on a
number of factors, including the seriousness of
the failure, the size of the employer, and the
general lack of consultation. The EAT stated that
none of these factors should have influenced the
decision on uplift as they did not relate to any
failure to complete the statutory procedure. It is
worth noting, however, that the wording of the
statutory provision relating to the uplift of
awards is arguably wider than this.
One-off smoking offence -
dismissal held to be reasonable
response
A tribunal in
Scotland has confirmed that a dismissal for gross
misconduct following a one-off breach of the
employer's no-smoking policy did fall within the
band of reasonable responses and the dismissal was
fair in all the circumstances.
In Smith v
Michelin Tyre plc, the tribunal noted that
the employer had a strict policy in relation to
smoking, and had had one for many years prior to
the implementation of the legislative smoking ban
in Scotland. The impact of the change in the law
had little impact in this case, simply providing
the employer with an opportunity of reinforcing
the already established rule and reviewing the
places where smoking could take place under the
new legislation.
Although the
employer's decision to dismiss appeared harsh, the
tribunal held that its actions did not fall
outside the band of reasonable responses. The
employee's personal circumstances (which included
depression and the loss of employment just before
Christmas) had to be weighed against the
importance of the policy in preserving the
employer's business, their property and the lives
of other staff.
Guidance on personal
data
The Information
Commissioner's Office (ICO) has published guidance
on "Determining what is personal data".
The guidance note
illustrates the ICO's view of what personal data
is for the purposes of the Data Protection Act
1998, with the use of practical examples to
illustrate when data relates to an identifiable,
living individual. The ICO will also be producing
guidance on the meaning of a "relevant filing
system" in the near future.
15 per cent rise in
Employment Tribunal claims
There have been over
132,000 Employment Tribunal claims in 2006/07, an
increase of 15 per cent over the 2005/06 figure,
according to statistics released by
the Tribunals Service. Over this period, there was
a 155 per cent rise in equal pay claims and a 100
per cent rise in sex discrimination claims.
National Minimum Wage -
first criminal prosecution
The proprietor of
a children's nursery has been fined £2,500 and
ordered to pay £500 in costs in the first National
Minimum Wage criminal prosecution case. The
proprietor pleaded guilty to the charge of
obstruction (one of the criminal offences under
the National Minimum Wage Act 1998), after
preventing HM Revenue & Customs compliance
officers from accessing staff records.
Systematic exploitation of
migrant workers
Thousands of Polish
and Lithuanian workers are being exploited at work
in the UK, according to a new report commissioned
by the TUC.
Since 2004, more than
475,000 Polish and Lithuanian workers have come to
work in the UK. The study shows that most of these
workers found insecure and poorly paid employment,
with more than half of those surveyed encountering
problems at work. A quarter of the workers in the
study reported having no written contract (a
figure which rose to nearly a third amongst agency
workers) and over a quarter had faced problems
with payment, including not being paid for hours
worked, discrepancies between pay and payslips,
unauthorised deductions and errors in pay
calculation. Ten times as many migrants as
indigenous workers were paid less than the
national minimum wage.
The study also
revealed that some employers provide accommodation
(at a cost) and use it to increase their control
over migrant workers. Nearly a third of the
workers were living in accommodation provided by
their employer, and complained of excessive hours
and poor living conditions.
Public holiday to build
national identity
According to the Institute for Public
Policy Research (ippr), Gordon Brown
should establish a British national day as an
extra public holiday on the Monday after
Remembrance Sunday (12 November this year).
The ippr says that
Gordon Brown's attempts to build a British
national identity would be boosted by having a new
public holiday which would act as a national
'thank you' for community heroes and as a national
'ask' for people to give back to their
communities.
The CBI, however, has
commented that whilst the idea of celebrating
national heroes is a positive one, there is no
reason why this couldn't be done during an
existing public holiday. According to the CBI,
offering staff an extra public holiday would cost
the economy up to six billion pounds on top of the
cost to firms of the forthcoming increase in
statutory holiday entitlement.
The Facebook
age
The UK's Facebook
users are 3.5 million accidents waiting to happen,
according to the TUC.
In guidance available on
workSMART, its working
life website, the TUC advises employers on the use
of email and internet policies, to make it clear
to staff what is and what is not acceptable. It
also discusses the conduct issues arising from
social networking, and the potential impact on
recruitment and security.
TUC General Secretary
Brendan Barber said: 'Simply cracking down on use
of new web tools like Facebook is not a sensible
solution to a problem, which is only going to get
bigger. It's unreasonable for employers to try to
stop their staff from having a life outside work,
just because they can't get their heads around the
technology. Better to invest a little time in
working out sensible conduct guidelines, so that
there don't need to be any nasty surprises for
staff or employers.'
Employees admit to
moonlighting
If the popularity of
Facebook isn't enough of a challenge for employers
to cope with, a recent survey of more than 1,400
people found that 7% of respondents have two jobs
as well as their normal job.
According to
Personnel Today, the survey by the Motley Fool
showed that nearly half of moonlighters (47%) work
for extra money, while a quarter believe their
talents are not properly recognised in their
regular day job. Nearly one in five said they
moonlight to broaden their horizons. Seven in ten
respondents said their main employer is unaware of
their other jobs, with 43% admitting that holding
multiple jobs was forbidden by their
bosses.
