Archive for May, 2011

BIS has launched a new consultation document entitled ‘Consultation on Modern Workplaces’proposing proposes the following changes to UK employment law, specifically family friendly policies and working time regulations:

Even though in recent months changes were planned and then pulled regarding flexible working policies and paternity leave has just extended to allow fathers/ partners to share maternity leave with the mother …. here we go again!

Flexible parental leave
Retaining 18 weeks’ maternity leave for mothers, then reclassifying the remaining maternity leave as ‘parental leave’ and allowing it to be taken by either the mother or the father/partner, or both.

Flexible working
Extending the right to request flexible working to all employees.

Working time regulations
These changes would reflect the recent European cases enabling employees to carry over untaken holiday into subsequent years if they have lost the chance to take paid holiday because of sickness absence (would also apply to maternity/parental leave).

It is proposed that this carry over entitlement would only apply to the amount of leave afforded to employees under EU law, which is currently 4 weeks. So employees would not be entitled to carry over the extra 1.6 weeks they receive under UK employment law.

The government is considering proposals which would allow employers to ‘buy out’ that extra 1.6 weeks which could be construed as making a mockery of it if the argument is an economic one!

Equal Pay
Employment Tribunals that have found an employer to have discriminated on gender in relation to pay may order the employer to conduct a pay audit and publish their results except in some circumstances, such as where an audit has already been conducted.

The consultation is open until 8th August 2011. The Home Office has more details and you can read feedback, get involved and vote on the proposals here.

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An employer sent me an email yesterday as follows: “I’ve received a letter from TV Licensing regarding licenses on commercial/business premises. Apparently employees would be breaking the law if they watched TV or recorded TV programmes on computers, laptops etc. ”  This is correct to some extent (see references to ‘Live’ programmes and similar terminology) so employers need to have policies in place to ensure that employees are not in breach of copyright regulations. (Our standard policies include this precaution see Employment Law Essentials). Here are the specifics, as usual the devil is in the detail  and the following extract from Advice Guide is a practical start.

Who needs a television licence?

You need a TV Licence to use any television-receiving equipment to watch or record TV programmes as they are being shown on TV. These include programmes on the BBC, ITV, Channel 4, Channel 5, cable and satellite television. Television-receiving equipment includes:

  •     TV sets
  •     set-top boxes
  •     DVD recorders
  •     video recorders
  •     computers and laptops
  •     mobile phones or other battery-operated devices
  •     games consoles

You don’t need a television licence if a TV set cannot receive TV programmes and is used only:

  •     for close circuit monitoring
  •     for watching pre-recorded videos or DVDs
  •     as a computer monitor – see under heading You don’t use your television set or other device to watch or record broadcast programmes.

You don’t need a TV licence if you only ever watch catch-up services, like BBC i-Player, that let you watch programmes after they have been broadcast.

A television licence allows the person named on it and any member of their household to use one or more television sets or video or DVD recorders at the address covered by the licence. If you are covered by a licence at your home address you are also covered to use a battery-powered device, such as a laptop or mobile phone, to watch live TV when you are away from home.

If you only have a black and white television, you only require a black and white television licence. If you have a colour television, a DVD recorder or video recorder, you will require a colour television licence. This will apply even if the DVD or video recorder is used with a black and white television set.

You don’t use your television set or other device to watch or record broadcast programmes

If you do not use your television set, video recorder or DVD player to watch or record live broadcast programmes (that is, BBC, ITV, Channel 4, Channel 5, cable television or satellite television) you will not need a licence. This means that you would not need a licence if, for example, you only:

  •     use the television set as a computer monitor
  •     use the television set to play electronic games
  •     watch pre-recorded videos or DVDs, whether or not these have been bought or recorded by someone else

However, the television set must be incapable of receiving all live broadcast programmes. This could be done, for example, by making sure that a television set, DVD or video recorder are not:

  •     tuned into any channels
  •     connected to an aerial
  •     connected to any cable or satellite services

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Cotswold Geotechnical Holdings Ltd was recently found guilty of failure to ensure the safety of an employee in breach of the Corporate Manslaughter & Corporate Homicide Act 2007. This is the first corporate manslaughter conviction to date under the Act. It has now been reported that the company has lost an appeal against the initial ruling at the Court of Appeal. The court also upheld the £385,000 fine.

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A station master has been sacked for risking his life to save others. UK employment law and Health and Safety regulations often go hand in hand for many employers especially if they operate in high risk industries, such as railway travel. In this case, South West Trains say they have taken the decision to sack popular station master, Faletto, on grounds of gross misconduct after he went onto the track to remove a shopping trolley which may have been capable of causing a serious accident.

The problem is that from an employment law and health ans safety perspective, Faletto had to contravene safety regulations to do so and this led to the accusation of gross misconduct. Mr. Faletto says he took action in an emergency situation and that in such circumstances the employer’s safety regulations allowed such an intervention. The case is likely to centre around employment law principles such as whether it was reasonable for the employee to take the action he did in the circumstances, and was it reasonable for the employer to find him guilty of gross misconduct, and if so, was it reasonable to sack him for the offence or were mitigating factors such as length of service, unblemished record, contingent circumstances (Mr. Faletto believed his request to turn off the power had been actioned) and so forth, capable of reducing the penalty to a disciplinary warning?

If the matter goes to court the tribunal will be the arbiter of these questions. The country will await the outcome of the tribunal’s decision which is likely to have an impact on other employment law dismissal cases where contravention of safety regulations are involved in extreme circumstances.

Ian Faletto has been praised for his customer service and has won many awards in decades of service for South West Trains who are standing by their decision and dismissed his appeal. The public are coming out in support for Mr. Faletto in their droves and petitions, PR and BBC coverage will all serve to put pressure on South West Trains whose journey through the employment law tribunal will not necessarily be an easy one!

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Job insecurity is at its highest since the recession started and staff morale is at its lowest since records began says the CIPD in a UK employment law and HR poll of over 200 employees.

21% of employees in the private sector think their employer is planning redundancies while that figure soars to 58% in the public sector; 29 % in the voluntary sector and 10% in the private sector.

For those employers who do plan to make redundancies it is advisable to speak with a UK employment law expert first as there is a procedure that must be followed in order to avoid unfair dismissal claims.

Even if employers don’t plan to make redundancies in the short term, they will benefit by addressing low staff morale and engendering a sense of job security wherever possible because the poll also found that the percentage of staff looking for a new job also increased from 19 to 24 per cent overall.

In UK employment law and HR terms, the risks and costs associated with hiring replacement staff makes it well worth the time spent on keeping the staff you already have. More on this story from TAEN the organisation that specialises in Age and Employment.

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BIS, The Department for Business, Innovation and Skills has published guidance on the Agency Workers Regulations 2010 which will come into force on 1st October 2011.
As expected, the Regulations provide that agency workers who have been engaged for 12 consecutive weeks with an organisation, will have the same rights to pay, benefits, rest periods and holiday entitlements as permanent workers within that organisation even though they are hired on a temporary basis.
Organisations using agency workers will therefore need to budget for the increased costs and may decide that it is easier in some cases to employ workers direct.

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The court has decided that an employer may be liable to a former employee for damages for negligent misstatement when making statements about him to a future employer.

Mr. McKie was a well regarded employee of Swindon College. He received an excellent reference when he left. He later joined Bath University where his new job involved contact with the former employer, Swindon College. The former employer’s new HR Director was responsible for a damaging email about Mr McKie being sent to Bath University. On the facts this was “fallacious and untrue” and its preparation “sloppy and slapdash”.  As a result, Mr. McKie lost his job at Bath University.

It has long been the case in UK employment law that an employer will be liable for damages if he or she gives an employee a reference which was negligently prepared. What exactly amounts to ‘negligence’ is dependent on the circumstances. However, this decision has now been extended from the act of giving ‘references’ to the much wider field of ‘communications’ in general.

Employers should always take care to ensure that any communications about former employees are accurate and appropriate in the circumstances and that UK employment law in areas such as data protection is observed.

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