My latest article!

	The Manufacturer's Monthly - November 2011
	Changes to unfair dismissal legislation - An employer benefit? The Chancellor, George Osborne, announced in October that in an effort to reduce the number of employment tribunal claims being made and 'red tape' for employers, the qualifying period that an employee must work for their employer before being able to make a claim of unfair dismissal would be increased from one year to two years. and that there would be a requirement for the Claimant to pay a fee when making a claim to the employment tribunal. Trade unions cried foul over these changes but how beneficial will they be to manufacturers? Unfair dismissal The increase of the qualifying period from one year to two years before an employee can make a claim of unfair dismissal is likely to be welcomed by a majority of manufacturers. By increasing the qualifying period businesses will have a longer period within which they can dismiss an employee without risking a claim of unfair dismissal. This clearly gives more control back to the manufacturers but would this reduce the number of unfair dismissal claims that will be made? It could therefore be the case that increasing the qualifying period will not actually have a significant impact on the number of claims of unfair dismissal, as there would be plenty of employees with over 2 years service who could still claim. The benefits of this change could be hampered by the fact that there is no qualifying period for employees to make claims of discrimination. Former employees regularly make claims that their dismissal was an act of discrimination (on the grounds of race, disability, gender etc). The lack of a qualifying period for discrimination claims means that such claims can still be made. The government is also unable to introduce any such qualifying period for discrimination claims as these are derived from European Directives. There has actually already been a drop in the number of unfair dismissal claims made to the Employment Tribunal from 57,400 in 2009/2010 to 47,900 in 2010/2011. These statistics could indicate that increasingly employers are dismissing people in a correct manner. Arguably the best way to avoid a claim of unfair dismissal is for a manufacturer to have clear dismissal procedures in place, and to follow these when considering whether or not to dismiss an employee rather than relying on the changes to unfair dismissal legislation. Employment tribunal fees It is understood, although not confirmed, that the fee for lodging an employment tribunal claim will be in the region of £250 with a further £1,000 fee that will also be payable by the claimant when the claim is listed for a hearing. These fees will be repaid if the claimant is successful. It is also thought that claimants who have no income will not have to pay the fees. It is difficult to dispute that a fee will make potential litigants think carefully before making a claim to the tribunal. Further, the £1,000 listing fee may encourage early settlement of a claim before the matter is listed for hearing. However, the exemption from paying fees by claimants who have no income may render the deterrent nature of the fee impotent. It is not beyond the bounds of credibility that someone who is making a claim of unfair dismissal will not have a job at the time that they make a claim, and so will be exempt from paying a fee meaning that tribunal claims will still be able to be lodged with relative ease by many claimants. It has been argued that tribunal fees will prevent vexatious litigants. The problem with this argument is that vexatious litigants by their very nature can be particularly determined to see their former employer in court no matter what the cost. While the potential tribunal fees may be a significant expense, often these types of litigants will find a way to pay as their sole intention is to make life as difficult as possible for their former employer. It is likely that the effectiveness of the fees as a deterrent will be dependant on the level of the fees and to whom the exemption on paying fees will apply. Tribunal fees will in all likelihood reduce the number of claims being made but perhaps by not as many as the government hopes. Conclusion The increase in the qualifying period to claim unfair dismissal and the introduction of tribunal fees is probably going to reduce the number of claims made to the Employment tribunal. It is, however, open to debate as to how significant this reduction will be. These changes also do not deal with the expense that is incurred by the employer in terms of legal fees and loss of management and staff time when a claim is made. So, manufacturers should ensure they have clear dismissal procedures in place. The changes to unfair dismissal legislation will have some impact but manufacturers are well advised to follow their own procedures having first ensured that they are as fit for purpose as can be. Please contact Andrew Browning, associate, on 023 8083 1205. Contact us Please contact Andrew Browning, associate, or call 023 8083 1205. Alternatively, contact Andrew Jackson, partner and member of our manufacturing sector group or call 01635 571077. Related links Visit our website Meet the manufacturing & logistics team Add a colleague If you think this ebulletin would be of interest to a colleague and would like to add their name to our mailing list, please email Simon Bomford with their contact details. Unsubscribe If you would like to unsubscribe to the Manufacturer's Monthly, please email Simon Bomford. Disclaimer The contents of this brochure are intended as guidelines for clients and other readers. It is not a substitute for considered advice on specific issues. Consequently, we cannot accept any responsibility for this information or for any errors or omissions. Thomas Eggar LLP is a limited liability partnership registered in England and Wales under registered number OC326278 whose registered office is at The Corn Exchange, Baffin's Lane, Chichester, West Sussex, PO19 1GE. The word "partner" refers to a member of the LLP, or an employee or consultant with equivalent standing and qualifications. A list of the members of the LLP is displayed at the above address, together with a list of those non-members who are designated as partners. Authorised and regulated by the Solicitors Regulation Authority. Lexcel and Investors in People accredited.   Chichester Gatwick London Newbury Southampton Worthing Call 0870 160 1300

 

 

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A Very Funny Case at the EAT Highlights a Serious Problem

On the Rollonfriday website they have a story about a non-practising Barrister who made a claim of race discrimination. The claims that the Claimant made were quite ridiculous and the Judge at the EAT gave them fairly short shrift. It is well worth reading the judgment just for it's comedy value!

Employment lawyers often have to deal with frivolous claims such as this one and while they do provide us with some light relief and fee income, employers do suffer in terms of having to pay for legal representation and the loss of management time in having to prepare for and appear at hearing.

There has been talk of how to prevent frivolous and vexatious claims being made and one suggestion from the Department of Business Innovation and Skills is that Claimants should have to pay a fee to the Employment Tribunal when they lodge a claim. It is thought that this would act as a deterrent to vexatious litigants. I am not convinced by this argument and believe that it is more likely to deter genuine claimants of limited means who have a genuine claim. The very nature of vexatious claimants means that they don't care about the cost of lodging a claim, they are just determined to make life as difficult as possible for their former employer.

My suggestion to minimise costs is to give Employment Tribunal Judges more discretion to kick out frivolous and vexatious claims at an early stage. Too often I have been to Pre-Hearing Reviews where the Employment Judge has been reluctant to move towards dismissing a claim on the grounds that a Claimant has no prospects of success as case law has made it difficult for claims to be struck out in these circumstances. I believe that this imbalance should be addressed and if Tribunal Judges are given more discretion to strike out a claim at an early stage then fewer ridiculous claims of the type reported above will proceed to a full hearing. 

My Article In Employers Law Magazine

I have been published! This is an article that I wrote about the effect that the Olympic Games may have on employers that can be found in this month's issue of Employers Law magazine:-

Preparing a Game Plan: A Tactical Approach

Olympic fever will soon be spreading with people suddenly becoming interested in sports as diverse as cycling and greco-roman wrestling.

There is a risk that during the games employers will experience problems such as higher absenteeism and lower productivity. Like the athletes, employers have to prepare for the games. Policies and procedures need to be up to date especially those relating to absence, holiday, and IT. It is also the case that employers have to consider what practical steps should be taken if there are multiple requests for leave by employees while the games are on and how the working day should be structured.

Annual Leave

There is no statutory obligation for an employer to allow their employees time off to watch the games. This includes any employees who may have been selected to work as volunteers at the games. Employers can refuse requests for time off as long as the employee in question receives the leave that they are entitled to under the Working Time Regulations.

Employers may also face the problem of too many people wanting to take time off at the same time leading to low staffing levels and need to consider how they would deal with multiple requests for leave. The “first come, first served” principle may be considered discriminatory; for example, where a part-time employee is not able to submit their request before a full time colleague because they only work certain days of the week. As an alternative, employers could consider holding a ballot to decide who can have time off during that period. Whatever the employee decides, they should deal with the issue of leave earlier rather than later so they can plan how their business will operate during the games.

Unauthorised Absences

What do you do about the employee who is refused time off by their employer to watch the 100 metres final but does not come in to work that day claiming that they have been stuck down by an illness?

Employees are allowed to be ill and while the circumstances may be suspicious the employer cannot take disciplinary action on the basis of purely circumstantial evidence. A proper investigation needs be carried out before the employer can conclude whether the employee had been watching Usain Bolt or tucked up in bed for 24 hours.

Social networking sites such as Twitter and Facebook have arguably made it easier to establish what an employee has been up to while off work. It is arguable that checking an employees Facebook page or Twitter feed is a breach of their right to privacy; however, if an employee has made it possible for anyone access their Facebook page or Twitter feed then it is difficult for them to argue that their privacy has been invaded.

Could an employer also check the employee’s work email to see if there is any evidence of them taking an unauthorised absence? Employers have to be very careful about doing this as emails can be considered sensitive personal data and the employer could find themselves in breach of the Data Protection Act. As a basic pre-condition to doing this the employer should have already informed employees that their emails may be monitored. Checking an employee’s emails is a drastic step and it is advisable for an employer to seek legal advice if they feel the need to do this.

Punctuality    

Punctuality may not be a problem for most employers. There will be no time difference and for broadcasting reasons most of the big events will take place in the evening. It may still be the case that you have employees who come in late from a lunchtime watching the rowing, or sneaking off early to watch the volleyball.

Practical solutions include allowing employees to work flexibly; for example, being allowed to come in early and leave early or taking lunch breaks at a different time. This would of course depend on the needs of the business.

Employers who are based near Olympic venues may find that their employees have difficulties getting into work as a result of the extra numbers of people who have come to watch the games. In these circumstances, employers may wish to consider temporarily changing their working hours or adjusting shift patterns to make it easier for employees to come into work during the games.

IT Systems

Events will be taking place all day, every day and broadcasters such as the BBC will be providing updates on the internet with live streaming and highlights. Company computer systems may be slowed down as a result of employees watching the games via the internet.

Employers should ensure that their IT policy is up to date and clear as to the limits of personal use of the internet and that breaching the policy may lead to disciplinary action being taken. It would also be wise for employers to remind their employees of the policy just prior to the start of the games.

A further step that the employer may consider taking is putting a television in a room for employees to watch (on condition that it does not impact on their work) or have an “Olympic Workstation” for employees to access Olympic related websites.

Conclusion

Employers should ensure that their policies relating to absence, holidays and IT are up to date and that employees are aware of these. They should also consider any practical steps that can be taken while the games are on.

On a positive note, the Olympics will bring many benefits to business, they have already provided a much needed boost to the construction sector, the tourist industry will thrive and there will also be short-term employment opportunities during the games. The greatest sporting event in the world is coming to this country next year - once your internal policies are up to date, try and enjoy it!

Bank Holiday Weekend

Well it is nearly the end of the week and time to enjoy the August Bank holiday. This is the last bank holiday until Christmas and I always wish there was one between now and the festive season. There have been discussions about this subject in the past. It is arguable that the moving nature of Easter means that there are almost too many bank holidays in April and May (especially when there is a Royal Wedding). (This has not however stopped people from campaigning for a further bank holiday to celebrate St George's Day)

I would like there to be a bank holiday in November. Why not have one around Bonfire Night and have fireworks to celebrate the occasion? Alternatively we could have one around Rememberance Day? There will be arguments against having a bank holiday around these dates. They could come from the Catholic population in the UK unhappy that Guy Fawkes' capture is being celebrated or from people of a pacifist persuasion who feel that having a day off at the time of Rembrance Day is a glorification of war.

Such arguments are not without validity so I would suggest a solution - we get the Queen (as bank holidays are declared by royal proclamation) to randomly choose a date from the period 15 October - 15 November out of a hat. This date would be the bank holiday (subject to it not being at weekends). That way we would get the bank holiday that most (because not everybody wants a bank holiday) people want and hopefully it will be an inoffensive way of choosing it (although anti-monachists may be against this method).

By the way let's still keep the Easter and May Bank Holidays!

Have a good weekend!

Tour De TE

Some of my colleagues are doing the Tour de TE. This involves them cycling between all six of Thomas Eggar's offices. As I write they are just about to complete the tour. Please feel from to sponsor them using this link.

Identity Theft resolved!

As you may be already aware from my previous blog entry a website had my law society listing next to a decision of the solicitors disciplinary tribunal relating to another Andrew Browning. Following an email to the website owner the link to my law society listing has been removed. Hopefully I will now only be mistaken for a George Michael impersonator!

Twitter Account

I am now on Twitter! My user name is @employerslaw and can be found by following this link: Employerslaw Twitter link

It will be a challenge to keep up everything up to date!

Identity theft! (well nearly)

I decided to do a "vanity" google search on my name and the phrase "employment solicitor". I did very well my linkedin page came top of the non-sponsored links which was not a bad effort. My Thomas Eggar profile was also fairly high up.

There was however one small aberration in the results - another Andrew Browning went before the solicitors disciplinary tribunal (SDT) in 2009 and has been barred from working at any law firm in England and Wales. It appears that this Andrew Browning had been stealing money from his firm's client account which is a very naughty thing to do in the world of law firms.

This is not necessarily the result that you want to turn up when you input your name into google but I accept that the SDT findings have to be made public so that people can avoid the dodgy Andrew Brownings that are out there. I was however annoyed to find another website which had the SDT decision on a web page next to my name and  a link to my entry on the law society website. This inferred that it was me who had been disciplined and I was still on the roll despite this disciplinary action being taken.

If the person who runs this website had carried out the briefest of checks he or she would have realised that me and this other Andrew Browning were not the same person. My namesake was not even a solicitor as he was actually employed as a clerk and this was clearly stated on the SDT decision which also stated that he had never been a solicitor.

I have contacted the website to ask for this link to be taken down and I am awaiting their response. In the mean time please rest assured I have not been before the Solicitors Disciplinary Tribunal for any reason. I would also like to make clear that I am not a George Michael lookalike and impersonator which is what comes up as the first result if you key just Andrew Browning into the Google search engine.

Writing Articles

I am currently trying to draft an article about the effect that the Olympics will have on employers. The article has to be 1000 words long. I think that I should be able to write the article but 1000 words is a lot and I have to try and make it interesting to the reader.

You get a lot of articles written by employment lawyers for various publications. Unfortunately it is the case that although we are very good at advising people on a one-to-one basis we are not always the best people to make an article interesting and engaging (as I think I am showing in this blog post).

Somehow I will have to try and "sex up" the article or at the very least make it interesting enough for somebody to read from start to finish. I will let you know how I get on and post a link to the article in due course....

Employment solicitor, human resources, thomas eggar, solicitor, andrew browning

Is he taking the pasta?

This is a brilliant story. Will pastafarians be afforded the same religious beliefs here in the UK. Watch this space!

http://www.telegraph.co.uk/news/newstopics/howaboutthat/8635624/Pastafarian-wins-religious-freedom-right-to-wear-pasta-strainer-for-driving-licence.html

Southampton Rubbish Building Up

I was in Southampton yesterday. As a consequence of the bin men going on strike there was rubbish all over the city with mounds of bags going uncollected. In the city centre the litter bins were taped up and there was litter all over the street.

It is unclear how long this dispute will rumble on for with further strikes being threatened and both parties appearing to be firmly entrenched in their positions. More industrial action is expected to take place and it does not seem likely that things are going to improve for the people of Southampton any time soon.

One thing that people can do to help the situation is not to drop their litter when the bins are not available for use. It only makes the everything worse and the streets even more dirty.

I have read the above paragraph and it makes me sound like a sandal wearing hippie. I am not in anyway like this; however, I really hate litter!!!! 



Peace man!



My first article!

 Hi

Please find below an article I wrote for my firm about ex-gratia payments and payments in lieu of notice. As you can see what appeared to be a straightforward termination letter cost an Employer over £20k (ouch!!):-

Termination Letter costs Employer £20,000

A Company has found itself in hot water when it tried to make a payment in lieu of notice tax-free. The Company described the payment in a termination letter as an “ex- gratia payment”. This description proved costly as the Employment Appeal Tribunal decided that the wording of the letter meant that the employee was entitled to a further £20,000 in notice pay on top of the £20,000 she had already received.

The case of Publicis Consultants v O’Farrell related to an employee, Ms O’Farrell, who had been made redundant. Ms O’Farrell was entitled to three months’ notice but was actually only given one days notice that she was being made redundant. Her employers decided to pay her in lieu of notice. In an effort to avoid the payment being liable for tax they described Ms O’Farrell’s notice pay in her dismissal letter as an “ex-gratia payment equivalent to three months’ salary”.

Ms O’Farrell made a tribunal claim stating that her contract of employment had been breached because her employers had not paid her any notice pay. Her employers argued that her contract had not been breached as it was clear that the ex-gratia payment was intended to be the notice payment.

Unfortunately, as the payment was described as ex-gratia payment rather than as a payment in lieu of notice, the Employment Appeal Tribunal found in favour of Ms O’Farrell stating that the payment was a separate ex-gratia payment and she was still entitled to her notice pay. The Tribunal ruled that she was entitled to three months pay totalling £20,625 (less tax and NIC). From the Company’s point of view this judgment further rubbed salt into the wounds as Ms O’Farrell had already successfully claimed that she had been unfairly dismissed.

The strict interpretation by the Tribunal shows that notice payments cannot also be ex-gratia payments (and vice versa) and this case clearly illustrates the risks when employers try to avoid tax on notice payments in this manner.

These risks do not just apply to redundancy situations but also when an employee’s employment is being terminated for any other reasons. Employers should consider protecting themselves from such claims by entering into a Compromise Agreement with the outgoing employee or at the very least they should ensure that they receive advice from an employment solicitor before terminating their employment.

For further employment advice, please contact any member of the employment team at Thomas Eggar. We can draft compromise agreements for a fixed fee and can assure our clients that no letter written by us will cost £20,000!

Andrew Browning

Employment Solicitor

 

Welcome!

Hello and welcome to my blog. My name is Andrew Browning. I am a solicitor specialising in Employment Law. I work at Thomas Eggar Solicitors. I started working for TE on 1 June 2011 so I am still very much the new boy. Although moving jobs is a big upheaval I am really happy with how I have settled into the firm and I am looking forward to a long and happy career at Thomas Eggar.

 The purpose of the blog is to try and keep readers updated on employment law issues and also give them an insight into the day to day life of an Employment Solicitor. So without further ado I declare this blog open!