Royal Wedding public holidays

The Government has announced a public holiday on 29 April 2011 to mark the Royal Wedding of Prince William and Kate Middleton. Many employees assume that, as it will be a bank holiday, they will be entitled to take this day as paid leave. In fact, employees do not have an automatic right to paid leave on bank holidays and it will depend on the wording of their employment contract.

The only legal obligation on an employer is to allow their workers the minimum annual leave laid down in the Working Time Regulations 1998 (28 days for a full-time worker). Where an employment contract provides for "twenty days holiday plus bank holidays", then the employee will be entitled to the royal wedding in addition to the usual eight bank holidays. Where the employment contract simply states that the employee is entitled to "twenty eight days holiday per year", there will be no such contractual entitlement. This will also be the position where contracts of employment specify particular bank holiday dates.

Whilst some employers might be willing to grant staff an additional day's holiday, others might struggle to do so for financial, organisational or political reasons so they would be wise to check employees' contracts of employment.

For more information contact Victoria Bunnell on 0115 988 6734 or email vbunnell@andersonssolicitors.co.uk.

Firms must avoid rising threat of tribunal claims

As the number of claims to employment tribunals reaches record levels, Helen Connaughton looks at how firms can avoid getting themselves into trouble when making difficult choices over staffing levels.

Sometimes in our haste to solve one problem we find ourselves creating difficulties elsewhere.

That has certainly been the case for many businesses forced to lay people off or reduce their working hours during this seemingly endless economic downturn.

The figures speak for themselves. The number of claims accepted by employment tribunals in the 12 months to April this year rose by 56%.

The huge surge was largely caused by the increasing number of multiple claims. These are where several employees bring the same claim, usually relating to issues such as equal pay.

However, there was also a 14% increase in single claims and a 17% increase in claims relating to unfair dismissal, breach of contract and redundancy issues.

The figures emphasise the need for employers to follow the correct procedures.

If you are proposing to make redundancies then you must consult staff as early as possible. This should be at least 30 days before the first redundancy if there are between 20 and 99 jobs to go and at least 90 days in advance if the number is over 100.

You must provide staff with written details about such things as the reasons for the redundancies, the number and categories of people involved and how you plan to select the employees affected.

Many firms find it useful to enter into compromise agreements with redundant staff. The agreements set out the terms and conditions relating to the termination of employment and once signed will prevent the employee bringing tribunal claims in the future, except for personal injuries or pension issues.

The firm may have to provide an enhanced redundancy package to encourage staff to sign but that could be a price worth paying to achieve a clean break and remove any fears of the employee taking legal actions in future.

Because staff will be waiving their right to bring an employment claim in the future, they must receive independent legal advice before entering into a compromise agreement to ensure they know and understand what they are signing. This advice should be provided by a 'relevant independent adviser' such as a solicitor that is experienced in employment matters and not acting for the company making the redundancies.

However, the costs are often paid for by the employer of the redundant workers as it provides an effective way of making progress and reaching a satisfactory settlement. The agreements are not restricted just to financial matters. For example, confidentiality clauses are quite standard procedures these days to prevent the employee from disclosing the terms of the agreement.

The employee may also wish to include conditions such as requesting that the employer provides a reference.

Compromise agreements are often a good way to reach a quick and fair settlement which removes the fear of employees taking legal action in the future.

Every care should be taken to avoid expensive claims. As the figures show, employees are more aware of their rights these days and more willing than ever to take legal action.

For more information please contact our employment expert Helen Connaughton on 0115 988 6726 or email hconnaughton@andersonssolicitors.co.uk

Equality takes on a more streamlined shape

Businesses will see several changes as the new Equality Act comes into effect in October 2010, although much of the legislation will remain reassuringly familiar. Laura Forster looks at the new streamlined approach to outlawing discrimination.

The Equality Act is designed to make things easier for employers by bringing together rules and regulations previously scattered throughout nine separate pieces of legislation.

The Act introduces several changes which will affect businesses and employers relating to discrimination in its various forms.

For example, businesses should be aware that people who access goods, facilities and services are protected from discrimination relating to "protected characteristics". These characteristics are:

• Disability;
• Age;
• Gender;
• Pregnancy and maternity;
• Race - including ethnic or national origins, colour and nationality;
• Religion or belief;
• Sex and sexual orientation.

The safest approach is to make it a matter of standard practice that all people are treated the same, regardless of any special characteristic they may have. Incidentally, the Act also clarifies that it is unlawful to discriminate against a woman because she is breastfeeding. It means a mother could not be asked to leave a restaurant, for example, because she needs to breastfeed her baby.

With the exception of pregnancy and maternity, people do not have to have one of the protected characteristics themselves to be protected from discrimination. The protection also applies if a person is unfairly treated because they are wrongly perceived to have a particular characteristic.

The protection also extends to people who are treated unfairly because they are associated with someone who has a protected characteristic. For example, this could apply to the carer of a disabled person.

There are also several changes relating to the workplace and employment law.

For example, work contracts must not contain secrecy clauses preventing staff from discussing how much they earn and comparing salaries to see if there is any evidence of discrimination. However, employers can still require staff not to disclose salary levels to people outside the company, particularly competitors.

There are also changes relating to harassment and victimisation, and the Act also introduces the concept of harassment by a third party. This means that employers are potentially liable for harassment of their staff by people they don't employ.

The Act updates and streamlines the law and should make things easier for businesses in the long term. In the meantime, however, companies may want to review their policies if they have not already done so to ensure they meet all the new requirements.

For more information please contact Laura Forster on 0115 988 6721 or email lforster@andersonssolicitors.co.uk

Overworked manager receives £110,000 after suffering from stress

A university worker who had to give up his job due to the stress of working a 65-hour week has received £110,000 in compensation. Laura Forster explains that many employers could face similar tribunal claims as the recession forces them to squeeze more work out of fewer staff.

Many employees seem to be feeling the strain these days as they struggle to cope with the workload of colleagues who have been made redundant.

Mark Bannister worked for Staffordshire University as a manager for ten years. His team lost two members leaving the remaining four to carry out work normally dealt with six people. This increased workload put Mr Bannister under pressure and resulted in him taking time off as he was suffering from stress.

Mr Bannister decided to take legal action on the basis that his employers had not done enough to support him and ensure that he was not overworked. His employer denied liability but agreed an out-of-court settlement of £110,000.

There have been similar cases in which employers have had to pay large amounts in compensation. To avoid falling into the same trap, firms need to have procedures in place to both reduce the possibility of stress developing and also to deal with it quickly when incidents do arise.

As soon as an employer becomes aware that an employee is suffering from stress, they have a duty to take reasonable steps to do something to help. It is important to identify the cause, whether it is workload, excessive hours or difficult relationships with other employees.

Employers may also have to consider whether staff stress may be caused by poor management, lack of support or inadequate training. If several members of staff show signs of stress then it may be that there are problems with the way the firm operates and organises its workload. This may show itself in increasing absenteeism, a constant turnover of staff and a lower level of productivity.

Once it is identified that a member of staff is suffering from stress then they should be monitored. Remedies such as reducing the sufferer's hours and workload may have to be taken. It might also be necessary to provide health checks, counseling and even psychotherapy.

The employer's attitude is likely to be very important in deciding whether there has been a breach of duty. An aggressive, dismissive attitude is likely to be looked on unfavourably by the courts, whereas a more sensitive and understanding approach could have a major bearing on the outcome of the hearing.

For more information please contact Laura Forster on 0115 947 0641.

Will World Cup 'sickies' hit your business?

The World Cup may be a great occasion but it can cause headaches for employers as workers suddenly go absent to watch big matches.

Staff absence traditionally rises during the World Cup month and while the excitement may be understandable, you still have a business to run.

Even the most conscientious of workers may be tempted to 'throw a sickie' so they can watch the big game, or they may call in ill because they are hung over from over-exuberant celebrations the night before.

There is, of course, no statutory right to take time off to watch football so employees will need to abide by the company's annual leave policy when requesting time off. Unauthorised absence could lead to disciplinary action, but in reality, it is better to plan ahead and try to avoid conflict.

The key is to have a clear cut policy that's fair to all and easily understood. Some firms may be able to provide TVs and allow staff to take a few hours off to watch the game on the understanding they make the time up later.

Be wary, however of being too hospitable by letting staff drink alcohol, especially if they have to drive or operate machinery as this could lead to health and safety issues. Employers could also be liable for an employee's behaviour if it results in personal injury.

Many firms cannot be flexible and so staff may have to use up holiday entitlement to ensure they get time off. In this case, it's important to ensure that there are clear and fair rules for booking such leave.

If there are likely to be too many request then employers could use a first come first served basis, or they could get employees to draw lots. People who miss out on one key match could be given preferential treatment for the next.

It's also possible that there may be workers who support teams other than England. They should be treated the same as England fans and given the same rights.

Remember too that this is no time for sexism - women must be given the same rights as men to watch the matches.

Of course, no matter how even handed you try to be there's a chance that some fans will still be tempted to throw the last minute sickie to get their way.

Employers should make sure that every employee knows that such behaviour could be considered gross misconduct and could lead to dismissal. However, care should be taken when reacting later to staff suddenly falling sick on the day of a crucial game.

It may be a genuine illness. The employee should be asked to produce a sick note or evidence that they really were unwell. If he fails to provide a satisfactory explanation the employer may be entitled to take action in line with the firm's disciplinary policy and the ACAS Disciplinary Code.

But the real victory is to prevent it ever coming to that. Get the policy in place, let everyone know where they stand and there shouldn't be too many problems.

A little flexibility and goodwill can bring enormous dividends in terms of staff morale.

For more information please contact Anthony Kay on 0115 988 6739.

Goodwill can prevent eruptions as stranded staff return home

As the dust settles on the volcano air travel crisis, many employers will be wondering how to deal with staff who have missed time off work after being stranded abroad. Laura Forster examines some common sense options that are fair to both sides.

Strictly speaking, failing to turn up to work after a holiday would be classed as unauthorised absence. Ordinarily it would be possible for an employer to contemplate disciplinary action. However, should such action result in an Employment Tribunal hearing, it would be likely that it would be found to be unreasonable to discipline someone caught up in a once in a lifetime event like the recent volcanic eruption.

Workers do not have an automatic right to be paid when they fail to turn up for work, unless it is provided for in their contracts. Companies that feel the need to take a strong approach will therefore need to check their employment contracts and policies before docking wages or they could face Tribunal claims.

The best approach, is for both sides to show a little common sense and be prepared to reach an agreement. There are a number of options available to deal with the situation. Employers could suggest that employees treat the unauthorised absence days as unpaid leave, or as part of their annual leave entitlement.

Another solution would be to pay the employee for the days they were absent but reach an agreement that the time will be made up in stages over the coming weeks or months. This might be particularly appropriate for staff who work flexible hours.

Whatever approach employers take, it is important to be consistent and follow the procedures and obligations laid down in their own employment contracts. Treating two employees in the same situation differently could lead to an Employment Tribunal claim.

Much will depend on individual employment contract, but whatever the technical position, a little goodwill and compromise on both sides will do a lot to prevent problems arising and help maintain a good working relationship.

For more information please contact our employment law expert Laura Forster on 0115 988 6721 or email lforster@andersonssolicitors.co.uk

Steep rise in tribunal claims poses a threat to employers

Steep rise in tribunal claims poses a threat to employers

The recession has sparked a huge rise in tribunal claims which have created costly and time-consuming problems for employers across the country.

Many of the claims relate to issues such as working time and equal pay but, not surprisingly perhaps, there has also been a rise in the number of cases involving redundancy. The indications are that the problem is going to get a lot worse before it levels out and starts to improve.

The latest full year figures from the Tribunal Service show that the overall number of claims rose by 43% in 2007/08 to a record high of 189,303. The provisional figures for 2008/09 show that this trend looks set to continue with a 38% rise in claims over redundancy payments, a 26% increase in unfair dismissal claims and a 25% increase in breach of contract claims.

There are several reasons for the increases. The recession has put pressure on many firms who have felt the need to lay people off, reduce hours or scale down benefits. All of these procedures can become a minefield when it comes to employment law. The problem has been made worse in some cases because the recession took hold so quickly.

Some firms have been taken by surprise and have rushed into changing working practices or making staff redundant without following the correct procedures. This haste has left them open to claims from disgruntled staff.

In the past, many employees who lost their jobs would find new work quite quickly and so would not feel the need to pursue a tribunal claim. The recession has made it much harder to find work so people have fewer options. They may choose to take legal action to make up for their lack of income.

The other difficulty for businesses is that employees are more aware of their rights these days and are prepared to pursue all sorts of claims relating to pay and conditions.

Looking to the future, employers will have to get to grips with the new Equality Bill which introduces stronger measures to tackle various forms of discrimination and could lead to a further rise in claims relating to age, disability and equal pay.

Many of the claims will be genuine but there is also a danger of a victim culture emerging in which someone who doesn’t get their way in the workplace feels entitled to make a claim. Most employment lawyers have seen a dramatic rise in cases over the last year, both from employees wanting to bring a claim and from employers needing to defend themselves.

Many employers may need to tread carefully because such claims can prove expensive, especially if the employee’s complaint is not handled correctly. To add to the problem, firms now face the added potential embarrassment of being named and shamed if they fail to pay awards made by tribunals.

Offending individuals or firms will be entered in the Registrar of Judgments if they fail to pay after being taken to court to enforce the award. The registrar can be searched by members of the public and by credit reference agencies.

The move is intended to give more weight to tribunal rulings and reduce the time people have to wait to receive payments.

On a more positive note, the Court of Appeal has ruled employers can take length of service into account when selecting candidates for redundancy.

The court was called upon to clarify the law after Rolls Royce was faced with the prospect of laying off several of its workers. The three judges held that length of service was a legitimate point to consider even though it could give older employees an obvious advantage over younger colleagues.

However, the ruling does not mean a simple “last in, first out” approach can be adopted. The judges made it clear that while length of service could be one of a number of factors under consideration, it should not be the only criteria used.

The ruling will be welcomed by many employers who would like to consider length of service when dealing with redundancies. However, they should still tread carefully and ensure they also take other factors into account before making any decisions.

Anthony Kay is a Partner in the Employment Department at Andersons Solicitors he can be contacted on 0115 988 6739 or by emailing: akay@andersonssolicitors.co.uk