How do you deal with your own #KPgenius?

The current saga regarding Kevin Pietersen’s dropping from the England cricket team has created a lot of headlines with Pietersen being accused of being a disruptive force in the dressing room, making unreasonable demands as to his playing commitments, and of sending disparaging text messages to members of the opposing South African team about his captain Andrew Strauss. Pietersen himself has accused teammates of colluding with the originator of a parody twitter account of himself called #KPgenius.

The ECB has taken the brave step of dropping Pietersen for the final test against South Africa despite him scoring a match-saving 149 in the previous test. The situation that the England management have found themselves in mirrors the problem that many employers face when their star employee is difficult to manage but also brings in significant income or benefits to the business. What can be done to deal with such an employee?

It is the case that most businesses need different people with different skillsets for the business to function properly. I have worked at firms where different partners did not get on but they appreciated the need to rub along for the greater good of the firm. If all employees are the same then not only would they have the same strengths, they would also have the same weaknesses and a “clone” workforce is not necessarily beneficial. It is therefore often advisable for a business to give some latitude to the difficult star employee as to do so will benefit the business as a whole. This can mean that the employer has to perform a balancing act to ensure that the employee’s behaviour is not bullying or discriminatory as if this behaviour is allowed to continue then the employer could find themselves open to claims of constructive dismissal or discrimination from other employees in the business who have had enough.

Like the England dressing room, it is preferable for internal disputes to stay within the business with a united front being presented to both customers and competitors alike. Open signs of disunity within a business can be seen as unprofessional and also a sign of weakness. This means that when an employee, however talented, starts openly badmouthing their employers to competitors and/or customers it is normally the case that they will have to be disciplined.

So what action can be taken against an employee who is badmouthing their colleagues and employer? A lot depends on the nature of the remarks and the context within which they were made. The employer would have to consider whether the employee could carry on working for the business after making the remarks and also whether they can continue working with their colleagues and managers. Ultimately, if the comments were sufficiently derogatory and damaging, the employee could be seen as having breached the implied term of trust and confidence between employer and employee and could be dismissed for gross misconduct.

Pietersen made the remarks by text message. I have no idea how it was discovered that he had made the remarks by text no-one really seems to know what they said. It would be difficult for employers to check an employee’s texts particularly if they were made on a private phone or they had subsequently been deleted by both the sender and the recipient. Employers can potentially check employees work emails for such comments; however, there are privacy issues and employees should be informed that their emails may be monitored (usually in their contract of employment or staff handbook). Checking an employee’s emails is not a step that should be taken without careful consideration and where necessary legal advice should be taken.  Comments made on social media sites such as Facebook and Twitter may also be used as evidence of trust and confidence being broken.

It can be very difficult for a business to sack their star employee. If they are a salesperson there is the risk that they may take clients with them; alternatively, they may have a set of skills that are hard to replace. It is a big step in such circumstances and businesses have to ensure that they are bigger than one individual. Hopefully the performance of England on day one of the test shows that such a step can be taken and others will flourish (I may have to amend this last paragraph if it all goes wrong in the next four days!).   

How Employers can avoid becoming sick of holiday rights

We are now well and truly into the holiday season. Workplaces up and down the country are emptier than usual, “out of office” becomes regular reply to your emails, and voicemails inform you that the person that you are trying to call will not be back for another two weeks.

Ever since the introduction of the Working Time Regulations in 1998 the issue of annual leave has become an increasingly difficult one for employers to deal with. Case law from both the EU and the UK has developed in relation to this issue particularly in relation to sick leave and annual leave and the following principles have been established:-

a)      Employees who are off sick can roll over their holiday entitlement into the next leave year.

b)      Employees can choose to take their holiday entitlement while they are on sick leave.

c)       Employees who become ill while on holiday can re-take their annual leave at another time.

d)      An employee who is off sick for the whole of an annual leave year does not have to specifically request that their annual leave entitlement is rolled over to the next leave year.

As well as the legal headaches that employers encounter there are also the practical problems. How do they ensure that the business is still able to operate properly while their employees are on leave? What is the fairest leave request system to have in place? What systems need to be in place to deal with the issues relating to sickness and holiday leave?

Despite bodies such as the CBI and Institute of Directors complaining about the difficulties that employers face when dealing with the issue of annual leave it is unlikely that anything is going to be done soon by the government to change this position due to the fact that the law relating to annual leave stems from either EU legislation or European case law. Employers therefore have to consider what they can do to try and minimise the effects of these cases. Here are a few suggestions on how to minimise these effects:-

1)      Have a clear Holiday Policy and Procedure – A clear holiday policy should state how much time off can be taken at one time. It should also state when requests should be made by and how they will be dealt with. The policy should also make it clear if there are any shutdown periods (e.g. Christmas) when leave should be taken.

2)      Plan for Holiday Absences – There are likely to be times of year such as during the school holidays when employees are more likely to want to take time off. Employers should consider what their business needs are and plan accordingly, for example; by setting limits on how many employees within a team or the business as a whole can take time off at any one time.

3)     Consider how to deal with multiple requests for time off during popular periods such as Christmas - Should it be on a “first come first served basis” or should there be some form of ballot? This does have to be  considered carefully, I remember when a firm that I worked at said that requests for time off at Christmas would be dealt with on a first come, first served basis and this resulted in a queue of employees outside the HR office on 2 January ready to hand in the leave requests for Christmas of that year almost 12 months in advance!

4)      Have a clear sickness/capability procedure – As stated above, employees who are off sick do continue to have rights in respect of annual leave. Dealing with sickness absence in a properly can prevent employees unnecessarily accruing holiday entitlement. It is also the case now that in light of recent case law employers should also consider what procedures they should have in place for employees who became ill while on holiday and who may want to retake their leave at a later time.

5)     If in doubt speak to a solicitor – Well I would say that wouldn’t I! The reality is that the earlier that you seek advice about any potential problems the more likely it is that you will avoid costly litigation in the future saving a lot of money in the long run. (We also have  a special offer to either update or draft yourholiday procedure for £75 plus VAT for details of this click here)

foxwhitfieldsouthampton.co.uk/latestnews

Choc-ice does not cool racial heat

When John Terry was found not guilty of racially abusing Anton Ferdinand on the football field last week many people thought that the media interest in the story would die down particularly once the FA had concluded its own disciplinary proceedings that had been put on hold pending the conclusion of the court case. However when Anton's brother Rio Ferdinand responded positively to a comment made on twitter by someone calling Ashley Cole a "choc-ice" for appearing as a witness in support of Terry, the media fires were stoked up again.

Ferdinand has denied that he was being racist in his response to the comment. He said that it was being used as a term used to describe someone as a fake. It is however from many people's point of view, my own included, a label that does have racial connotations. I must admit that I have never heard the words choc-ice used in that context before; however it is similar to the term "coconut" which has been used to describe black or asians as being disloyal to their race.

In the past there have been cases which have involved the term coconut being used as an insult. In June 2010 a Bristol City Councillor was convicted of racial harassment when she called a political opponent a coconut. An article by Dilnuci Onuzo in the Guardian describes a case in which a client of hers was convicted of the same offence that Terry was charged with because he called another black man a coconut.

The police have now confirmed that they are investigating the comment made on twitter about Cole and the person who made it could face prosecution. Whether or not you agree with Rio Ferdinand that the use of the term is not racist, it is clear is that if you make such comments you may find yourself in a lot of trouble. 

Holiday ruling shows that red tape is hard to cut

The European Court of Justice ruled yesterday that employees who fall ill while on annual leave can retake their leave at a later date. This ruling has been expected by employment lawyers for some time and the government is to make changes to the Working Time Regulations to both comply with the ruling and also deal with the difficult issue of how annual leave can be carried over by employees who are unable to take their entitlement due to sickness. The consequences of this ruling are however potentially extremely costly for employers and in particular small businesses.

A few years ago I went on a holiday to Egypt. We had a wonderful time enjoying the hot weather, spending time relaxing on the beach or by the pool, seeing the sights and going diving. The only slight downside to this trip away was that, to put it delicately, I had some tummy troubles for the first few days. I was still able to enjoy myself but I had to ensure that I was not too far away from the nearest WC.

Arguably the above scenario is not uncommon for many holidaymakers; however, these symptoms potentially could be classed as sickness and that if this happened again I could claim that I should be entitled to retake my annual leave at another time.

You could probably argue that my upset stomach was partially self inflicted in that I went to Egypt where the heat combined with the change in food/water meant that it was much more likely that I would pick up some form of bug. So in the future could employers decide that under their contracts of employment employees should be required to avoid certain destinations or types of holiday e.g. skiing, snowboarding or diving?

It also raises the question as to what happens if the employer only pays SSP and the employee declares that they they were off sick and want to re-take their annual leave at another time. Can the employer recoup the holiday monies that may have already been paid to the employee? Also how much time can elapse between the employee being ill while on leave before they tell their employer. Should they tell the employer on the day that they are sick as they are often required to do so under their contract of employment or can they wait until their return from leave? 

What is probably not in question is that this ruling means that a further burden will be placed on employers. The costs of complying with this obligation will probably outweigh the savings for employers that may have been made by the increasing of the length of service required to make a claim of unfair dismissal and the proposed changes contained within the Enterprise and Regulatory Reform Bill.

I am not aware of any ministers criticising the ruling and the resulting consequences for employers. There have been no promises to try and change the law at European level, probably because in the EU it is easier for laws to be created than for them to be repealed. What this ruling shows is that the government’s promise to reduce red tape for employers is perhaps one that they will struggle to keep.

Employers should take note of the handling of Nalbandian

The defaulting of David Nalbandian in the  final of  the Aegon Championships at the Queens Club was one of the big sporting headlines of the weekend. Having watched the footage of Nalbandian kicking the advertising hoarding into the shin of the line judge I think that they had little alternative but to default him and award the match to Marin Cilic. The rules are clear with our very own Tim Henman was defaulted for similar reasons early in his career when he hit a ball girl with a tennis ball while smashing it away in a fit of pique and Serena Williams being defaulted in the 2009 US Open semi-final due to her abusing a line judge.

The purpose of this rule is to act as a deterrent against players abusing umpires and line judges. Employers also have a similar obligation to protect their employees in that they owe them a duty of care, including to provide them with a tolerable working environment. The case of Horkulak v Cantor Fitzgerald made it clear that an employee could successfully claim constructive dismissal if their working environment had become intolerable. In the Horkulak case the claimant resigned due to the behaviour of his line manager who constantly used foul and abusive language but the principles of the Horkulak case could similarily apply if a third party, such as a customer, was behaving in an intimidatory or offensive way towards the employee and the employer took no steps to prevent it.

There is also specific legislation within the Equality Act to protect employees from 3^rd party harassment if it is on the grounds of one of the “protected characteristics” (e.g. race, sex, disability etc.) If a third party harasses an employees in such a way (e.g. racially abuses them) and the employer is aware of this harassment but fails to take steps to prevent further harassment then if there are a further two instances of harassment then the employee can make a claim against the employer.

Employers should therefore follow the example of the ATP and ensure that their employees are protected from the unacceptable actions of third parties as if they do not do so they could leave themselves open to claims of constructive dismissal or harassment - particularly if a rather irate tennis player comes onto the premises.  

Some happier tennis players!

Time off for Euro 2012 is not an issue

Euro 2012 starts on Friday. Two years ago, before the last world cup, articles were being written about whether employers should allow employees time off to watch the games (legally there is no obligation to do this). England's first match is against France and is scheduled to kick off at 1700 hours BST on Monday 11 June. This means that the working day may be eaten into by employees who want to slope off early to watch the match. So why no articles on this topic? I would suggest that it is probably due to one of the following reasons:-

1) The England v France match is the only game that England will play that will take place during normal working hours so it is not worth worrying about.

2) 1700 hours is normally at the end of the working day so it is probably not that much of an issue.

3) Nobody seems to expect England to do very well in this tournament so there are potentially very few people who care.

Alternatively it may be the case that these types of articles are being used for the Olympics!

Enjoy the Jubilee but check your contracts as well

This year and last year have both had additional bank holidays. Last year there was Royal Wedding bank holiday and this coming week we will be having the Jubilee bank holiday. These extra bank holidays have meant that employment lawyers up and down the country have been able to write articles about whether employers are obliged to allow employees to have the time off work and whether it should be paid. I myself wrote a brief article on this subject myself when working for a previous employer.

The answer is fairly straightforward - it depends on the wording of the contract as to whether the employmer is required to give their employees the time off. What this topic actually highlights is the need for employment contracts to be carefully drafted as some employers can be quite unhappy at the prospect of paying employees for taking an extra day of  holiday. The need for this was also highlighted in the case of Cavenagh v William Evans Limited which the Court of Appeal ruled on last month.

Mr Cavenagh had been made redundant by William Evans Limited and under his contract of employment he was entitled to be paid in lieu of notice. After terminating his employment, but before making the PILON the Company discovered that Mr Cavenagh had a few months previously arranged for a payment to be paid by the Company into his pension fund and this payment had not been properly authorised. The Company decided to withhold the PILON monies on the grounds that Mr Cavenagh would have been dismissed for gross misconduct without notice had they known of the unauthorised payment. Mr Cavenagh sued the Company for breach of contract.

The Court of Appeal found in favour of Mr Cavenagh saying that there was a contractual agreement to pay him these monies and there were no provisions in his contract to allow recovery of the monies if misconduct was subsequently discovered.

The above case and the Jubilee Bank Holiday shows that employment contracts need to be carefully drafted. They also need to be regularly reviewed as employment law does change over time. Getting a solicitor to draft and review your employment contracts can seem to be an unnecessary expense; however, it can save you money in the long term.

Was Vince Cable right to get a Beecroft in his bonnet?

The Business Secretary Vince Cable described the Beecroft Report which amongst other things proposed a change to the laws relating to unfair dismissal as "bonkers" Beecroft responded to this description of his report by calling Vince Cable a “socialist” (I am not sure whether that is actually an insult – I know some people who are very proud to call themselves socialists). So were Beecroft’s proposals in relation to unfair dismissal really that crazy?

The Proposals

Beecroft proposed that the law relating to unfair dismissal be changed in the following ways:

·         An employer can dismiss an employee without giving a reason regardless of their length of service. This would be known a “compensated no-fault dismissal”.

·         There would be what Beecroft describes as a brief consultation before the decision to dismiss the employee is taken.

·         The employee would be paid an enhanced payment as compensation for leaving in this manner in a similar way that an employer would pay an employee a redundancy payment.

The Potential Benefits

Beecroft believes that the current laws regarding unfair dismissal do not take into account that circumstances can change during an employee’s employment. The employee may be promoted and not be able to fulfil their new role properly, there may be changes in customer demands or technology which make the employee unsuitable for the role.

Beecroft is of the opinion that his proposed changes to the law relating to unfair dismissal would reflect the commercial needs of businesses and by making it easier to dismiss an employee it would actually make companies more inclined to take on staff.

The problems

So what are the problems with these changes? Beecroft is right in that the current unfair dismissal laws do not take account of situations where an employee is promoted and it turns out that their new role is beyond them or if there are changes in customer demands or technology. It is however the case that employers can dismiss employees fairly on the grounds of capability although this can take some time (often around three months).  There is also the possibility of dismissing somebody on the grounds of redundancy if technology changes means that they are surplus to requirements. This brings into question whether or not these changes are actually needed.

There is also the issue of the process of dismissing an employee in such a fashion. Beecroft stops short of advocating allowing a manager to come in and sack an employee on the spot saying that there should be a brief consultation. He does not expand on what form this consultation should take nor does he deal with the issue of what happens if the process is not followed properly. Does this mean that the employee could still claim unfair dismissal if they felt the process was not carried out correctly?

It is also the case that employees would still be able to make discrimination claims arguing that their dismissal was a discriminatory act (e.g. on the grounds of race or sex) so there would still be a risk of an employment tribunal claim being made against the employer.

Further; on a practical level, even if you are dismissing somebody under the grounds of compensated no fault dismissal it is still a difficult conversation to have with an employee. Not all business owners/managers like having that type of conversation and so they may still avoid going down this route instead preferring to cope with the situation by letting the employee in question continue working in the hope that things may get better or the employee will leave of their own accord.

Often the arrival of a new manager can mean that they want to clear out existing staff members. These proposals would make it fairly easy to do this; however, what happens if the business realises that it has hired the wrong manager? They can easily get rid of him or her but they will potentially have lost a number of staff who that particular manager had sacked on a whim that they may have wanted to retain. There may also be some morale issues with the workforce if they feel that they are going to be sacked at any time for no good reason. This may lead to staff members leaving for more “friendly” employers because they do not want to work in such an environment leading to increased staff turnover which would be costly for employers.

Conclusion

I feel that these proposals have not been properly thought through and will be kicked into the long grass and quickly forgotten. The intention of the paper was to propose how to cut red tape. The reality is that much of the legal obligations for employers derive from the EU (e.g. maternity regulations, agency workers regulations, TUPE, part-time workers rights, and discrimination law) and unless there is a fundamental change in the UK’s relationship with the EU these obligations will not go away and a majority of the red tape will remain. The reality was that the Beecroft report just proposed tinkering around the edges and succeeded only in generating a political row for a few days.

If it aint broke......

The Queen’s speech has been accused of being light in terms of content by both MP’s and the Press; however, from my point of view it looks as though there will be plenty of interest for employment solicitors in the form of the Enterprise and Regulatory Reform Bill. One of the aims of the bill is to streamline the Employment Tribunal System leading to claims being resolved more quickly than they are at present. One way the government hopes to speed things up is to require all claimants to lodge details of their claim with ACAS and be required to take part in conciliation before the Tribunal proceedings start to kick in.

Early involvement of ACAS means that both parties will potentially start talking to each other about settlement at an early stage leading to an early settlement and costs being saved on both sides. ACAS can also help unrepresented parties get a realistic idea of what they may achieve either as a settlement or at Tribunal. A simple example of this is the ACAS officer explaining to a claimant who is claiming unfair dismissal that they cannot claim monies for injury to feelings as their claim is not one of discrimination.

However, will this actually improve things? ACAS are already involved in tribunal proceedings at a fairly early stage. They are sent a copy of both the tribunal claim and response at the outset of the proceedings and from personal experience I have found that the ACAS officers try to get in touch very early on in proceedings to see if settlement is possible. Arguably, they do a reasonably well with 29% of all Tribunal cases in 2010-2011 being settled through ACAS.

I would suggest that the reality is that ACAS officers are already doing good work in trying to find a resolution to tribunal claims and that parties cannot be forced into an early settlement if they don’t want to. Not everybody can be persuaded to come to an agreement early on due to the emotions involved. It is often the case that attitudes to settlement start to soften later in proceedings often only when the parties are within sight of the Employment Tribunal door and realising that they are actually going to have to give evidence at the hearing.  Sometimes giving the parties time to draw breath is a good way to eventually reach a settlement.

This does not mean that the representatives of the parties should not advise on early settlement. When I advise clients on the prospects of successfully defending a claim I will also discuss the option of early settlement with them and how much they should consider paying to make the matter go away, taking into account the prospects of success and the costs that they may incur. It has however regularly been the case that either my client has not been minded to settle at that stage or the claimant is completely unwilling to consider settlement in any event.

The reality is there is only so much that can be done to encourage early settlement. I think that if ACAS officers and employment lawyers do their jobs properly then claims will be settled in good time. I feel that these proposals are more a case of the government wanting to be seen to be doing something rather than actually coming up with genuinely new way of settling tribunal claims.

Speaking Philosophically about the Bahrain Grand Prix

There has been a lot of coverage in the press about whether the Bahrain Grand Prix should go ahead this weekend due to the pro-democracy protests that are taking place in the country. This coverage has however made little mention of the decision of Williams Formula 1 team to dismiss a member of their catering staff because she refused to travel to Bahrain on moral grounds.

Very few facts relating to the dismissal of this employee are in the public domain but it is understood that Williams took the decision to dismiss her because she was contracted to work at all 20 races of the F1 season and by refusing to work at the Bahrain Grand Prix she had breached her contract. If the employee had only started working for Williams at the start of the F1 season she would not have been able to make a claim of unfair dismissal as she did not have the required length of service, but could she instead made a claim that she dismissal was an act of discrimination due to her philosophical beliefs?

Since 2003 employees have been entitled to protection from discrimination on the grounds of their philosophical beliefs. The meaning of “philosophical beliefs” has been the subject of scrutiny by the Employment Tribunal system. There have been some surprising results with various Tribunals finding that beliefs in climate change, anti-fox-hunting, and public service broadcasting amounted to philosophical beliefs that were entitled to protection under the Equality Act. It is not clear what the “moral grounds” were for the employee not to want to travel to Bahrain but if it was a belief in democracy and/or human rights then these are likely to be classed as philosophical beliefs that should be protected.  

So how could Williams argue that the decision to dismiss the employee was not discriminatory? The case of Grainger Plc & others v Nicholson (which found that a belief in climate change could be considered a philosophical belief) set out a list of principles which should be applied to decide if a belief should be subject to the protection of the law. This list included whether the belief held was genuinely held and also whether it had a certain level of certainty or cohesion. If the employee had worked at the Chinese Grand Prix which took place the previous weekend then the genuineness and cohesion of her beliefs could be challenged as she would be questioned why she worked in a country (China) which is governed by one party and has an appalling human rights record but did not feel that she could work in Bahrain. This would potentially create difficulties for the employee if she made a tribunal claim.

As I said above, the facts in the public domain regarding the decision to dismiss this employee are limited. Williams described her departure as being by mutual consent so it may be the case that some form of settlement was reached; however, the dismissal of this employee does highlight the need for businesses to be careful when dealing with an employee who objects to being asked to do something that they feel is immoral.

Bad Management of Football Managers is Bad Financial Management

The administrators at Portsmouth Football Club have published their report this week. It states that Portsmouth have debts in the region of £58 million. There are plenty of other football clubs who have found themselves in administration including Portsmouth’s local rivals Southampton FC, Plymouth Argyle (my team!) and most recently Glasgow Rangers. So how have these clubs got themselves into such trouble?

The cost of dismissing the manager is one contributing factor. It is often very likely that if a sacked football manager was to make a claim of unfair dismissal they would probably have very good prospects of success. This means that more often than not they will be paid off by the club.

Football managers are very well paid and are usually on contracts for a fixed term of 3 to 5 years. If the club decides to dismiss a manager after only a short period they are potentially liable to pay the manager the balance of his contract. They can argue that the manager should try and minimise his losses by finding alternative employment and there is usually horse trading between the club and the manager as to how much the settlement should be but it is the case that such a settlement can run into hundreds of thousands of pounds. It is arguable that dismissing the manager can actually be doing the club more harm financially than keeping him on.

What is also often forgotten is that when a manager is dismissed the rest of the coaching staff (who have often come with the manager) will often be dismissed as well meaning that there will be potentially more compromise agreements being handed out. This means that a club with a lot of outgoing managers will quickly find that a lot of money is leaving with them.  

Since Harry Redknapp left Portsmouth in 2008 there have been ten managers at the club and since he left Southampton in 2005 there have been eight managers. This cannot have helped the either club’s finances. There are other reasons for clubs going into administration such as players’ wages and general financial mismanagement; however, having a high turnover of managers cannot have helped both for footballing and financial reasons.

How Cardiff Blues Tackled Henson

Welsh rugby international Gavin Henson was dismissed by his employers Cardiff Blues today following his misbehaving on a plane from Glasgow to Cardiff last Saturday morning. There has been plenty of comment in the rugby press about his departure (one that was particularly good was by Brian Moore); however, from an employers’ point of view how easy was it for the Blues to sack Henson?

The reality was that it was fairly easy for the club to do this. Henson was travelling back from Glasgow having played for the Blues the previous evening. He was in all likelihood travelling back with the rest of the squad on a flight paid for by the club. If this was the case it can easily be argued that at the time of the incident he was “on duty” with Cardiff. I would also be very surprised if there was not a clause in his contract that said he should not do anything that would bring the club’s name into disrepute.

By misbehaving on the flight in such circumstances, Henson had created the perfect storm for himself making it very easy for the club to dismiss him on the grounds of gross misconduct. Henson’s best argument may have been that his behaviour on the plane had not amounted to gross misconduct; however, while what did or did not happen on the plane may have be open to speculation, Henson publicly apologised for his actions indicating that his misbehaviour was serious in nature. Further, Henson being banned by Flybe for six months would not help this argument.

In any event, Henson had only been with the Blues since the start of this season meaning that he did not have the one years’ service (two years from 6 April 2012) required to make a claim of unfair dismissal. He could still claim wrongful dismissal but if successful that would only entitle him to the monies that he would have received had he been given the notice that he was entitled to under his contract.

In reality Henson is unlikely to be making a claim against the Blues and instead will be getting his agent to start contacting potential employers. Maybe we will see him on I’m a Celebrity …..  

My Budget Non-Response

Unlike last years budget where George Osborne confirmed that the one year qualifying period to make a claim for unfair dismissal would be increased to two years there was very little for employment lawyers to get excited about. The announcement of most interest to employment lawyers (well it was not really announced but could be found contained within all the paperwork issued by the treasury to accompany the budget speech) was that the consultation on Employment Tribunal Fees would end on 17 July 2012 before the summer recess. This announcement was in reality not particularly exciting anyway.

One of the main aims of the budget was to encourage growth within the economy. One way to boost the economy is to try and get more people back into work. Unemployment stands at 8.7% of the working population up from 8.4% last year so there was a need for the Chancellor to come up with incentives for employers to take people on. Arguably the cut in corporation tax from 25% to 24% in April with two further cuts to bring it down to 22% by 2014 will mean that Companies will have more to spend on other things including taking on more staff although this is in no way guaranteed.

From an employees point of view the increase in the personal allowance will clearly be of benefit to employee, particularly to those who are lower-paid. It remains to be seen however whether inflation will mean that the gains from the increase will be wiped out.

Ultimately everyone seemed to know what the contents of the budget would be so much of the comment had been made beforehand and from an Employment Law point of view there was very little that could be said anyway!

Moving On Up!

I have been somewhat slack recently in terms of posting on my blog recently. This is because there have been a lot of changes recently in my work life so I have been dealing with them rather than blogging on here.

I am now in the process of setting up my own practice in Southampton through Fox Whitfield solicitors. Fox Whitfield is a niche employment firm advising on employment law only. All the solicitors at Fox Whitfield are over 5 years qualified and the way that the firm is structured with sattelite offices around the country means that we are able to keep our fees down while still providing a high quality of service. Due to the wonders of modern technology we are still able to discuss any difficult cases that we may have and pass on work to each other when we are at full capacity in the same way that any conventional firm would.

I have therefore been getting everything ready to practice. I have managed to get an office at the University of Southampton Science Park. It is a great location with lots of other businesses around of varying sizes. It is close to the M3, the airport, the train station and there is plenty of free parking for clients. There is also a nice cafe there as well!

One big difference between setting up your own practice and being employed is that when you are employed you turn up at work on your first day and you are given a desk, chair, telephone and a PC as the basic minimum. When you are setting up you have to bring your own desk, chair etc. with you to go in your office. I have therefore spent the last few days getting office furniture to go in my office. I found a good supplier in Chandlers Ford called Haywood Office Services who were very helpful and good value too.

I am now in the process of marketing. I am trying to get the Fox Whitfield name out there by attending networking events, using Twitter and Linkedin and also by blogging.

Hopefully this hard work will pay off. At times it can be very daunting; however, it is also very exciting too!

Now I just need to get some clients........

Top 10 Employment issues of 2011

Now is the season when the media starts looking back over the last 12 months and makes lists of significant events or achievements. Without wanting to be left out, here are, in no particular order, our list of the big employment issues of 2011:-

1)     The Royal Wedding – this was the most searched term on Google this year but the wedding also raised the question as to whether employers had to give employees time off to watch the happy occasion. This is likely to be an issue again next year when we get an extra bank holiday for the Diamond Jubilee.

2)     Auto-Enrolment for Pension Schemes – The government slowed the requirement for employers to auto-enrol their employees into a pension scheme by announcing that employers with fewer than 50 employees are no longer required to comply with the current deadline of September 2012 to enrol their employees and will now have until either May 2015 or September 2016.

3)     The Introduction of Employment Tribunal Fees - The government announced that it is seeking to charge fees in the employment tribunal. The proposed fees are between £200 and £1,750 to issue a claim with other fees payable for applications and listing claims for a full hearing. The consultation  closes in March 2012.    

4)     Scrapping of the Default Retirement Age – The default retirement age of 65 years has now been phased out and employers will have the difficult task of justifying any fixed retirement age that they seek to have in place. Alternatively they will have to consider other reasons to dismiss such as capability or redundancy.

5)     Sickness and Holiday Pay – The European Court of Justice case of KHS AG v Schulte  has been a favourable from an employers point of view as the court found that there cannot be an indefinite carry over of holiday entitlement where employees are on long term sick leave. 

6)     Pension Dispute with Public Sector Workers – Public sector workers resistance to government proposals to reform their pensions culminated in a mass strike on 30 November with teachers, NHS workers and local government workers all walking out that day. Talks are still ongoing and progress is apparently being made but to date no final agreement has been reached.

7)     New paternity leave provisions – Parents can now share maternity leave with the father being able to take up to 26 weeks of any maternity leave that is untaken by the mother.

8)     Agency Workers Regulations – After 12 weeks service agency workers are now entitled to the same rights as their permanent counterparts in respect of pay, working time, rest breaks, night work and annual leave.

9)     The requirement for two years service before an employee can claim unfair dismissal - This is a big change in employment law as from April employers can dismiss employees with less than two years’ service (as opposed to the current requirement of one year’s service) without needing a fair reason  - as long as the reason is not discriminatory. 

And finally:…

10) Carry on Nurse!  - The case of the senior staff nurse who was found to have been unfairly dismissed for making a suggestive remark after she had to sit on top of a naked patient so that he could be administered his medication was arguably the most amusing employment case of the year.