In the past employers have sometimes tended to ignore staff on long term sickness absence in the belief that they are not costing the employer anything once SSP entitlement has been exhausted. However, this overlooks the fact that holiday entitlement continues to accrue so long as employment continues.

We have recently come across two cases which are substantially different in their conclusions, though both are helpful to employers.

The first case involves a recent decision of the EAT (Employment Appeal Tribunal ).

The case concerned a nurse who had been absent from work for several years before being dismissed. She claimed unpaid holiday pay in respect of years prior to the holiday year in which she was dismissed. In essence, the EAT said that her claim failed because she had not given notice to take holiday during the years in question.

This is an interesting decision as there is an underlying principle that someone cannot take holiday whilst they are absent through sickness.

The second case concerns a decision of the ECJ, the European Court of Justice and therefore would be binding on any national court.

Without going into the details of the case, the decision establishes the principle that an employer may establish a time limit after which holiday will no longer accrue, though this must be “substantially longer” than the holiday year.   The case in question involved a period of 15 months.

This opens up the prospect that employers could insert such a limitation into their employment contracts. However, we would always advise our clients to begin the process leading to termination by reason of capability (ill health) if an employer has been absent for 6 months, with no prospect of a return to work – in the absence of any special considerations.

In November last year the government announced a new incentive to encourage small employers who do not normally do so to take on apprentices aged between 16 to 24. The scheme is aimed at employers with up to 50 staff, though can extend to those with up to 250.

The form of the incentive is payment of £1,500 payable in two parts and is due to come into effect in April this year.

You should however, know that there some potentially costly implications in employing apprentices. Firstly, apprentices must be given an employment contract in the same way as any other employee; a training agreement is not a substitute. Secondly, they are entitled to National Minimum Wage with a possible exception in their first year. Finally, if they are unfairly dismissed they can claim for “lost opportunity” based on expectations of future earnings had their apprenticeship  concluded successfully as well as loss of earnings to the (expected) end date of their apprenticeship.

These last two considerations can make the (unfair) dismissal of an apprentice an eye-wateringly expensive undertaking.

There has been talk of increasing the qualifying period of service (to acquire unfair dismissal rights) from one year to two. In the fairly recent past the qualifying period has been as low as six months and as long as two years so this is not a new idea. The complicating factor that employers need to keep in mind is that relatively few tribunal claims are for Unfair Dismissal alone.

There is a wide range of claims which have no service qualification at all. These include any discrimination issue, Health & Safety, Assertion of statutory rights, Public Interest Disclosure & Pregnancy. This is why we always advise clients to have a formal meeting with someone who is to be dismissed, even if the person has less than one year’s service. This puts on record the real reason for dismissal.

And on the negative side (for business) the Government has proposed to introduce fines for employers who lose at tribunal. The amount would be 50% of the compensation awarded, albeit with a minimum of £100 and a maximum of £5,000. This also links to a proposal to introduce a system of formal offers. Under such a system, awards might be increased or reduced or costs awarded if no compensation is awarded.

Additional Paternity Leave

You may have read or heard of the change which came into effect last month allowing the partners of women who give birth after 3 April 2011 (or who adopt a child after that date) to take additional paternity leave if their partner has returned to work.

Bear in mind that this right to additional paternity leave/pay applies equally to same sex partners in the same way as normal paternity pay/leave.

The bare bones provisions are :-

• The child is born (or adopted) after 3^rd April 2011
• The employee may take a maximum of 26 weeks additional paternity leave if their partner has returned to work
• The rate of pay applicable since April is £128.73 per week or 90% of average weekly earnings if that is less
• Holiday entitlement continues to accrue as is the case during maternity leave.

Comment

As with so many employment initiatives, this almost certainly looks more attractive in theory than it is in practice. We would suggest that there will not be many employees who could afford to take advantage of this new right.

These Regulations come into effect from 1 October this year & we know that some clients do make use of agency workers. We hope that you will find the highly condensed summary of the main feature below of use to you.

• Workers employed through an agency will have the same rights (in respect of employment and working conditions) as direct recruits if/when they complete twelve weeks in the same job.
• The provisions will not apply retrospectively. That is to say that the qualifying period for those already on assignment will start to run from1 October
• Agency workers will be entitled to the same facilities(e.g. childcare, canteen) and information on job vacancies as direct recruits from day one of their assignment
• Agency workers will be entitled to equal treatment in terms of such things as pay and basic working conditions. Pregnant (Agency) workers will be entitled to paid time off for ante natal appointments

Employers will need to provide the agency with up to date information on their terms and conditions so that they can ensure that an agency worker receives equal treatment after 12 weeks

What is it about social networking media that causes people to behave so irresponsibly.?

We recently learned of an incident in which an employee of a client made derogatory comments about a colleague on Facebook. The person who did this clearly failed to appreciate that what they had to say was effectively in the public domain. The matter came to light because the subject of the comments saw them and complained to higher management.

The unusual aspect of this sorry incident is that it was a manager who made the inappropriate use of Facebook. The manager now appreciates the consequences of such unprofessional behaviour.

Whilst social media are, strictly speaking, outside the control of an employer, such blatantly wrong conduct can lead to legitimate disciplinary consequences.

In our December 2010 Newsletter we reported that from 2012 employers would be obliged to contribute a minimum of 3% towards employee pension provision.

In fact, we now know that it is only employers with over 30,000 employees who will be affected next year when the provision start to come into effect.

Our clients all employ considerably fewer and the first clients to be affected, those employing between 90 and 149 staff will not be obliged to make contributions until June 2014.

We hope you find this information useful when preparing budgets and in particular in planning wage costs.

There is a 3 month time limit for the submission of tribunal claims ( 6 months for redundancy payment claims) and this time limit is quite strictly applied, the exception being where it was not reasonably practicable for the claim to be submitted within the three months.

In this case John Lewis Partnership v Charman the employee was dismissed on 13^th March so any unfair dismissal claim should have been lodged by 12^th June. The employee was unaware of the three month time limit.

His appeal was heard on 24^th May, but he did not receive the letter, dated 28^th June, rejecting his appeal, until long after the 12th June deadline.

He submitted a claim on 21^st July & an employment tribunal concluded that “it was not reasonably practicable” for him to present his claim before the determination of his internal appeal and that he had presented his claim within a reasonable period thereafter i.e. after he knew that his appeal had been rejected. The EAT upheld the tribunal’s decision.

This case does usefully illustrate that there is nothing to be gained by delaying the appeal process in order to exhaust the three month time limit.

The article is a summary of the bare facts.  If you would like a copy of the full decision, please contact us

This case, Dobson v David Cover & Sons reflects the importance of individual consultation even in cases in which collective consultation is also required.

The employer was a large transport company employing about 450 employees across 12 depots.

In February 2009 the company announced the need for redundancies – 80 employees were at risk -22 were to be made redundant.

The number to be made redundant is important as collective consultation with “the appropriate representatives” is required where it is proposed to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less.

As there was no recognised trade union, the employer sought elected representative  but no nominations were forthcoming so the employer nominated a representative.

The employer subsequently consulted with the representative, omitting to consult on an individual basis. This gave rise to a claim that the lack of individual consultation made the dismissal unfair.

Although the EAT concluded that the lack of individual consultation did not in fact make the redundancy dismissal unfair,  the cost in legal fees would have been considerable for what was purely an error of omission.

The article is a summary of the bare facts.  If you would like a copy of the full decision, please contact us

Are you one of those managers who hates conducting Appraisals and really wonders what is the point?

On Tuesday, 1^st March 2011, I will be running a short seminar over two hours from 6.00pm to 8.00pm to answer this and other questions that explain the reluctance to arrange these annual meetings and why they often have little value to either Appraiser or Appraisee.

The Seminar covers the following :

• Why have appraisals
• How to prepare
• Common faults
• Different types of questions
• Avoiding demotivation

The event is free to retained clients and includes a buffet between 5.30 & 6.00pm. The cost to those who are not clients, is £30.00 inclusive of VAT. Payment with booking.

The event will be held at Astley Hire Ltd, Jury Street, Leigh, WN7 5RX

Places can be booked by e-mail & will be allocated on first come, first served basis.