Archive for the ‘Legal updates’ Category

The Court of Appeal has clarified the employment status of Methodist Ministers.

The Methodist Minister in this case resigned from her post and then went on to present a claim for unfair constructive dismissal against the President of the Methodist Conference. In order for her to succeed in her claim it was necessary for her to demonstrate that she was an employee of the Methodist Conference.

Before this the Courts had held that the spiritual nature of the work of a Minister of Religion meant the law presumed they could not be working under a contract of employment though this could be rebutted. However, the Court of Appeal recognised that the law has evolved and said that such decisions should no longer be followed. It said that there is no basis for concluding that a minister’s spiritual role in itself precludes an intention to create a contractual employment relationship. Accordingly, it ruled that she was an employee and, therefore, able to bring a claim for unfair constructive dismissal.

This case applied to a Methodist Minister appointed by a congregation or group of congregations, however there must now be a risk that other Ministers of religion may also be found to be employees .

Case reference: President of the Methodist Conference v Preston (formerly Moore).

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Employers may need to shelve any plans to employ Bulgarian and Romanian workers as restrictions on their right to work have been extended.

Romania and the Republic of Bulgaria joined the EU in 2007. When they joined, existing Member States were allowed to restrict access to their labour markets by Bulgarian and Romanian nationals until 31 December 2011. After that, they could extend those restrictions until 31 December 2013 if there were ‘serious disturbances’ to a Member State’s labour market or the threat of such disturbances.

The UK chose to make such restrictions in the Accession (Immigration and Worker Authorisation) Regulations 2006 which applied from the beginning of 2007. Those Regulations restricted Bulgarian and Romanian nationals’ ability to work in the UK until 31 December 2011. The UK has now decided to continue to apply those measures until 31 December 2013 on the basis that there is a ‘serious disturbance’ in the UK labour market. The 2006 Regulations have, therefore, been amended by the Accession (Immigration and Worker Authorisation) (Amendment) Regulations 2011.

This continues the existing provisions. For most categories of worker from these countries, the UK employer will have to apply for a work permit before the immigrant applies for an ‘accession worker authorisation document’. If s/he obtains that document, the worker then has to work in accordance with the conditions in it.

Permission to work will normally only be given where a worker has a specific job offer and the work is in skilled employment for which the employer has been unable to find a suitably qualified resident worker.

Further information on applying for a work permit for Bulgarian and Romanian workers can be found at the UK Borders Agency website.

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The Government has announced that the qualification period for the right to claim unfair dismissal will be extended from one to two years from 6 April 2012. The change comes as part of a Parliament long review on employment law, which is looking at all aspects of employment law and is part of the Government’s plans to deliver growth by reducing red tape, boosting opportunities and creating more favourable conditions for both start-up and existing businesses alike.

The rationale behind the change is that by extending the qualifying period it will be much less risky for businesses to take on staff. Government estimates that the change could save British businesses nearly £6 million a year. It also predicts that the number of unfair dismissal claims will drop by around 2000 a year.

The change will not impact on the right of employees to claim unfair dismissal where the reason for dismissal is one which is ‘automatically unfair’. A dismissal is ‘automatically unfair’ where an employee is dismissed for exercising or trying to exercise one of their statutory employment rights, for example if they are dismissed by reason of pregnancy or for ‘whistle-blowing’.

Government has also announced plans to introduce a fee for bringing a claim through an employment tribunal (however, employees who leave work and claim benefits are likely to be exempt). The new charging policy is expected to apply from April 2013. The Government will consult on the level and structure of the fees.

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The Agency Workers Regulations 2010 which are due to come into force on 1 October 2011, have been amended. The amendments, which are contained in the Agency Workers (Amendment) Regulations 2011 and come into force on 1 September 2011, have the following effects.

The Agency Workers Regulations 2010 which are due to come into force on 1 October 2011, have been amended. The amendments, which are contained in the Agency Workers (Amendment) Regulations 2011, come into force on 1 September 2011.

The 2010 Regulations give temporary agency workers certain rights including rights in relation to basic working and employment conditions.

The 2011 Regulations correct a number of drafting errors contained in the 2010 Regulations by:

• changing the definition of an ‘agency worker’. The 2010 Regulations only covered workers who have a contract of employment with an agency or another type of contract to perform work and services personally for the agency. The 2011 Regulations extend the definition of agency worker so as to include workers who have a contract with the agency to perform work or services personally. The change, therefore, means that the worker will not need to be working for the agency itself;

• changing the circumstances in which an agency worker will not be entitled to be paid the same as other staff recruited directly by a hirer. As a general rule, when the 2010 Regulations come into force agency workers will be entitled to be paid the same as other workers recruited directly by a hirer. There are certain exceptions to this general rule, which will apply to agency workers who have a permanent contract of employment with their agency and the 2011 Regulations contain a minor change to this.

• changing the circumstances in which an agency will be liable for any failure on the part of a hirer to comply with their requirement to provide the same basic working and employment conditions to agency workers as they do to the staff they recruit directly. The 2010 Regulations created a defence, which will be available to agencies in certain circumstances, and the 2011 Regulations has changed the circumstances in which the defence will be available. The change means than an agency will be able to avoid liability for breach of the Regulations by a hirer if it can show that it has taken reasonable steps to obtain information about the hirer’s terms and conditions.

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In this case a teacher was dismissed after allegations of indecency. The school reported the outcome of the disciplinary hearing to ISA, the Independent Safeguarding Authority, which had the power to place the teacher on a barred list to prevent him teaching in schools. The teacher challenged the refusal to allow him legal representation at the disciplinary hearing held by the school. The Supreme Court  held that there is no right under Article 6 of the ECHR to legal representation at a disciplinary hearing where dismissal could lead to a process capable of barring an individual from a profession, where the barring decision is sufficiently independent of the dismissal decision.

The caveat [see italics] is important and employers should be aware that where a decision in one set of proceedings impacts on another decision involving a person’s civil rights, then the right to a fair hearing [and by implication the right to legal representation at the disciplinary hearing] may be invoked.

Case reference: R (on the application of G) v The Governors of School X.

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The Transnational Information and Consultation of Employees (Amendment) Regulations 2010 are in force from 5th June 2011 and 1st October 2011.

The original EC Works Council Directive of 1994 required Member States to introduce laws requiring large scale  transnational employers  (1000 workers and over) to inform and consult with workers on a wide range of matters. In the UK this has been achieved by the Transnational Information and Consultation of Employees Regulations 1999, SI 1999/3323 . Another version, Directive 2009/38/EC was passed on 6th May 2009 which requires changes to be made to the 1999 regulations by 5th June 2011.  These changes are now being implemented.

The Regulations:

  •     introduce new obligations on central management on the way that information and consultation should take place in EWCs;
  •     define more clearly what constitutes a transnational issue which EWCs are entitled to consider;
  •     require that EWCs are adapted following significant structural changes to the company to ensure that all employees are represented (the ‘adaptation clause’);
  •     create a new right for members of EWCs and Special Negotiating Bodies to receive necessary training;
  •     create an obligation for the central management to provide the EWC with the means required to fulfil its duties
  •     provide for a link to be established between consultations at national level on issues where national employee representation bodies are entitled to be consulted and related consultations with the EWC where issues related to transnational matters;
  •     increase the maximum penalty from £75,000 to £100,000 that can be awarded for a breach of  the Regulations
  •     establish the Central Arbitration Committee (CAC) as the tribunal to hear the majority of complaints brought in Great Britain.

The full Regulations can be found at the goverment website.

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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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