JULY 2012
Goodman Derrick LLP has acted for clients in the hotel and leisure industry for many years and the Employment Department recognises that this sector is heavily reliant on its staff. We know that you need to keep abreast of the legal matters that may arise and this newsletter seeks to help you do just that!
WHAT’S NEW?
Tribunal fees
Currently, there are no charges levied by the Employment Tribunal when issuing a claim. However, it was announced on 13 July that fees will be introduced from Summer 2013.
Depending on the type of claim brought, it will cost £160 to £250 to issue the claim and a further £230 to £950 if the matter proceeds to a full hearing. There are also other fees that may be chargeable too, depending on how the case progresses.
Most (but not all) fees will be payable by the person bringing the claim, i.e. the employee, although there will be exceptions for those on low incomes. Also, the Tribunal will have the power to order an unsuccessful party to reimburse the fees paid by the successful party, meaning that an employer who unsuccessfully defends a claim brought against them could end up footing the bill for the Tribunal fees incurred.
Possible employment law reform
The Enterprise and Regulatory Reform Bill was introduced in May and is currently under discussion. The Bill proposes a number of reforms including:
Consultation on other significant reforms is already underway (for example, changes to the rules on flexible working to allow more employees to make flexible working requests, amendments to the current holiday rules to allow holiday to be carried forward from one holiday year to the next) so there could be more changes on the horizon. Watch this space!
National Minimum Wage Rates change in October
Usually the national minimum wage rates increase with effect from 1 October each year. However, this year the only rates that will increase are those for workers aged 21 years and above (from £6.09 to £6.19 per hour) and for apprentices (from £2.60 to £2.65 per hour). The rates for workers aged between 18 and 20 will remain at £4.98 per hour and for those under 18, it will remain at £3.68 per hour.
Retirement – justifying age discrimination
Readers will perhaps recall that the employer’s right to compulsorily retire an employee has now been removed. Therefore, if an employer forces someone to retire, they now have to show, amongst other things, that their decision was not an unlawful act of age discrimination. In order to do that, they must demonstrate that their behaviour was justified, which means that it was “a proportionate means of achieving a legitimate aim”.
The case of Seldon v Clarkson Wright and Jakes (April 2012) provided some guidance on justification as the Supreme Court held that staff retention, workforce planning and preserving dignity were all legitimate aims. However, no decision was made as to whether the age of 65 was proportionate. We eagerly await further decisions dealing with this issue.
Sunday Trading during the Olympics
The restriction on Sunday trading hours has been suspended between 22 July and 9 September 2012. This means that shops with floor space of more than 280 square metres will not have any restrictions on Sunday opening times. Also, the period of notice that employees must give to opt out of Sunday working has been reduced from 3 months to 2 months during the Games.
FAQs.....SOCIAL MEDIA AND GROSS MISCONDUCT
Question: One of my employees has posted obscene comments about one of his female colleagues on Facebook. It was done in his own time via his home computer. His Facebook page is only available to his “friends” but this includes many of his other colleagues at work. Is this gross misconduct?ANSWER: Potentially, yes. It may be reasonable for you to find that the comments amount to harassment of one of your employees. This could therefore amount to gross misconduct and justify the dismissal of the offending employee.
The recent Northern Ireland case of Teggart v TeleTech UK Limited (March 2012) mirrored these facts. It held that the dismissal of an employee who made vulgar comments about the promiscuity of a female colleague on his Facebook page was fair in the circumstances as it constituted harassment, as set out in the employer’s Dignity at Work Policy. Harassment has a legal definition - unwanted conduct that has the purpose or effect of violating a person's dignity or creating an offensive, intimidating or hostile environment. Although this was a Northern Ireland decision, the law in respect of unfair dismissal is very similar in England.
This recent decision highlights that inappropriate comments made on social media may justify disciplinary action (and sometimes even dismissal), despite being made outside of work and to a limited audience. However, of course, each decision is fact-specific but, with the rise in use of social media, employers would be well advised to ensure that they protect themselves as far as possible so that they can act if they ever encounter a situation along the lines of the above scenario.
One of the best ways to do this is to introduce a clear and up-to-date policy about your employees expected conduct when using social media. This should explain not only what is and is not acceptable but also the consequences of any breach of those expectations.
For advice on updating or introducing such a policy in your own organisation, please get in touch as we would be happy to assist.
FOCUS ON… THE TERMINATION DATE
The effective date of termination (“EDT”) is the date on which the employee’s period of continuous employment comes to an end. The date that forms the EDT will depend on the circumstances in which the employment ended.
The reason that the EDT is so important is that the time limit for bringing employment-related claims is calculated from the EDT. For example, an employee has 3 months from the EDT to bring a claim of constructive or unfair dismissal.
Whilst determining the EDT should usually be simple enough, it can sometimes cause confusion to both employers and employees. The recent case of Horwood v Lincolnshire CC (2012) demonstrates this.
Mrs Horwood resigned from her employment at Lincolnshire County Council after she unsuccessfully appealed against a final written warning and demotion. She then attempted to bring a claim for constructive dismissal. A summary of the background to the case is as follows:
The Council argued that her claim was brought outside of time limit, alleging that her EDT was actually 29 January (the date that her resignation letter was opened) and not 2 February as the Practice Manager had cited in his letter. The Employment Appeal Tribunal agreed. It said that even though the letter was not read by the person it was addressed to, it was sufficient to show that her resignation had been communicated to her employer. The fact that the Council had referred to a later EDT in their reply, did not vary the EDT as the EDT is something which is dictated by the law and specific facts. Therefore, it held that her claim was out of time (as the last date that it should have been received by the Tribunal was 28 April).
It is worth bearing in mind that, in contrast to the above scenario, if the employer dismisses the employee by letter with immediate effect, the employee’s EDT is when the employee actually reads the letter or at the very least has a reasonable opportunity to discover its contacts.
As always, each case is heavily dependant on its facts. If your employee has brought a claim against you and there is a dispute over the EDT and/or whether the claim is in time, you should seek advice from an employment law specialist.
Do you have an FAQ that you want covered in future editions of this newsletter? If so, please submit your question to kdias@gdlaw.co.uk.
USEFUL INFO… FAMILY PAY
|
Type |
Duration (max.) |
Amount |
|
Maternity pay |
First 6 weeks |
90% of weekly earnings |
|
Following 33 weeks |
£135.45 per week (or 90% of weekly earnings if lower) | |
|
Paternity pay |
2 weeks |
£135.45 per week (or 90% of weekly earnings if lower) |
|
Additional 26 weeks (applies only where mother return to work) |
£135.45 per week (or 90% of weekly earnings if lower) | |
|
Adoption pay |
39 weeks |
£135.45 per week (or 90% of weekly earnings if lower) |
Remember that most employers are able to recover some (and sometimes all) of these payments from HM Revenue and Customs.
Katee Dias
Senior Solicitor
If you have any queries regarding the above or need assistance with any employment law issue, please contact Katee Dias, who is a member of our employment team and specialist Hotels & Leisure Team, on 020 7404 0606 or at kdias@gdlaw.co.uk.
This guide is for general information and interest only and should not be relied upon as providing specific legal advice.
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