• The Qualifying Period for Unfair Dismissal rights – this will increase from 12 months to two years for new employees whose start date is on or after 6^th April 2012. The important reservation we have about this is that there are numerous claims a dismissed employee can bring which do not require any qualifying period of service at all.
• The maximum amount of a deposit order (the amount a party has to pay in order to continue proceedings) doubles from £500 to £1,000.  **
• The maximum amount of a costs order (in favour of a legally represented party) doubles from £10,000 to £20,000.  **
• Witness statements will be taken “as read” unless the tribunal directs otherwise.
• Tribunals can direct that the parties to a dispute are responsible for paying witnesses’ expense – and that the losing party should reimburse the winner for any such costs already paid out. Note the underlined wording.
• Judges will hear unfair dismissal cases alone – unless they direct otherwise. It is not entirely clear whether this will happen or it is just a proposal at this stage.

** Comment. When tribunals were set up, following the Industrial Relations Act  of 1966 the intention was that costs would not be awarded because the parties did not need to be represented. Whilst this doubling of the limits may look helpful to employers, it will be meaningless unless tribunals actually make more such orders, something they have been remarkably reluctant to do.

This can be summarised fairly briefly in the following way:-

An employer is “proposing to dismiss” employees as redundant (thus triggering the consultation provisions of the Act) when, “following a diagnosis of the problem, specific proposals are formulated, with redundancies as one of the available options” (Hough v Leyland DAF Ltd). “Proposing to dismiss” means “proposing to give notice of dismissal”. A proposal means something less than an actual decision that dismissals are to be made, and something more than a possibility that they may occur (Leicestershire County Council v Unison). Thus where directors of a company were considering the options of either selling the business as a going concern or selling it as a development site, this amounted to a proposal to dismiss the workforce, even though no final decision had been reached on which option they would adopt ( Scotch Premier Meat Ltd v Burns ).

If you need any further help in deciding when to start the process, please call us for advice at the earliest possible stage.

Well the answer is yes, you do. The reason for the (sickness) absence is essentially irrelevant. However, sickness absence is normally unplanned in that people do not know that they are going to be ill in advance. This was different in that the employee knew that they would be absent for a certain period, but failed to inform their manager – which would have allowed for cover to be arranged.  How silly !

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.

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 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.

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.

• 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