How many paid bank holidays should a part-timer receive?  It seems like a simple question, but the answer is often not entirely straightforward.

The starting point is the individual’s contract of employment.  However, in many cases, this will simply state that the employee is entitled to public and bank holidays in addition to their normal holiday entitlement.  For part-time staff this means they receive holiday on public and bank holidays that fall on days when they would normally work.  That is all very well but it means that part-timers who work on Mondays do rather better when it comes to bank holidays than those who do not happen to work on Mondays.  For obvious reasons, that can cause some people to feel hard done by.  And it might even lead to a claim under the Part-Time Workers Regulations if it means that a part-timer’s total paid holiday entitlement is proportionately less than that of a comparable full-time worker.

So if the employment contract does not specify how bank holidays will be dealt with, the employer can be left in a bit of a quandary.  Pro-rating the entitlement of all part-timers will expose the employer to claims for breach of contract from those individuals who work on Mondays.  But choosing not to pro-rate may be equally problematic because it may lead to complaints from those who do not work on Mondays.  The only safe option in this situation is to give those who would otherwise miss out additional pay or time off in lieu so that their total annual paid holiday entitlement is equivalent to that of a comparable full time worker.

The good news is that the problem can be easily avoided by ensuring that the employment contract deals with the issue.  The most common way is to add wording to all part time workers’ contracts stating that they only receive a pro-rated amount of bank holidays.  Another method is for the contracts for all employees to specify their total holiday entitlement (inclusive of bank and public holidays) and to include wording which states that employees must take holiday on any bank and public holidays that fall on a normal working day.  This is fair, easy to administer and avoids the risk of part-time worker claims. 

If you would like further advice on this issue or any help with amending your contracts please contact Seth Roe: seth.roe@wiggin.co.uk / 01242 631 262

I don’t know about you, but I was always under the impression that redundancy selection criteria should be as objective as possible.  But judging by a recent EAT decision, it seems that there are limits to how objective you should be.

The case (Mental Health Care (UK) Ltd v Biluan & another)  involved a hospital that needed to make 19 redundancies.  In an attempt to avoid subjectivity and bias, the employer devised an elaborate selection process involving a series of competency tests normally used to recruit new employees.  The assessment was carried out by members of the HR team who hadn’t had any prior experience of working with the employees in the selection pool.  They didn’t obtain assessments from the managers who had worked with the employees nor did they consult past appraisals (apparently this was because the employer took the view that the appraisal data was not reliable).  A couple of the individuals who were selected for redundancy brought claims for unfair dismissal.

The tribunal and EAT upheld the claims on the basis that it was unreasonable for the selection process to be based entirely on recruitment-style assessments, without any reference to past appraisals or the views of the managers.  This was confirmed by the fact that the process had produced what the employer admitted were “very surprising” results.  The EAT found that the employer’s “blind faith in process” had led to it losing touch with common sense and fairness.

Another interesting aspect of the decision is that, even though the method of selection was criticised, the EAT found that the consultation process was not unfair even though there had been no individual consultation meetings and the employees were not told what their individual scores were.

So the message seems to be this: although it’s still the case that redundancy selection criteria should be reasonably objective, it’s possible that you can go too far.  A bit of subjectivity in the criteria may be necessary to ensure fairness.

Here’s a copy of the decision:-

http://www.bailii.org/uk/cases/UKEAT/2013/0248_12_2802.html

For further information please contact Marcus Rowland

marcus.rowland@wiggin.co.uk / 0207 927 9677

In a decision that will no doubt be welcomed by older workers, the Employment Appeal Tribunal has recently upheld a decision which found that it was not unlawful for an employer to operate an enhanced redundancy payment scheme which meant that younger employees received significantly less than their older colleagues.

The case involved a Miss Lockwood who took voluntary redundancy from the Department of Work Pension after 8 years’ service.  She was 26 years old at the time.  Had she been 35 with the same amount of service her redundancy payment would have been almost £17,700 more.

She argued that this was direct age discrimination.   The EAT disagreed.  It found that there is a material difference between her age group and the older age group who were entitled to the more generous redundancy terms and so it was not appropriate to draw a comparison between the treatment of the two groups.  In any event, it found that the less favourable treatment of the younger employees was justified because older workers tended to find it more difficult getting a new job after being made redundant.

The decision is a little surprising for a number of reasons, not least because of the finding that it was not appropriate for Miss Lockwood to compare herself with an older employee who was made redundant in exactly the same circumstances.  Far be it for us to say that the EAT have got it wrong, but their logic on this point is a little difficult to follow.

It will be interesting to see whether Miss Lockwood appeals.  In the meantime, our advice would be to treat the decision with caution.  If you do operate an enhanced redundancy scheme the safest way of avoiding liability for age discrimination is to ensure that it mirrors the statutory scheme (i.e. by using the same age bands and multipliers that are in proportion to the statutory redundancy payment multipliers) and thereby bring it within the specific exemption in the Equality Act 2010.

Here’s a copy of the EAT’s decision: http://www.bailii.org/uk/cases/UKEAT/2013/0094_12_0402.html

For further information please contact Marcus Rowland (marcus.rowland@wiggin.co.uk / 0207 927 9677) or Seth Roe (seth.roe@wiggin.co.uk / 01242 631 262)

It’s fair to say that TUPE has induced more than its fair share of headaches amongst employers since it was originally introduced over 30 years ago.  In a bid to make life a little easier, the Government has recently published a consultation paper setting out various options for reforming TUPE.

Probably the most significant change is the proposal to remove the “service provision change” provisions.   This would greatly reduce the chance of TUPE applying in a contracting out/in situation or where there is a change of a third party contractor.  Although this may be welcomed by some, it will inevitably lead to more uncertainty over whether or not TUPE applies  when there is a change in service providers.   And uncertainty almost inevitably means more scope for litigation: good news for lawyers but not so good for everyone else.

Other proposals include:

• removing the requirement to provide “employee liability information” prior to a transfer in favour of clear guidance and a general duty to disclose information where this is necessary for both parties to carry out their obligations;
• relaxing the restrictions on post transfer changes to terms and conditions;
• allowing a change in location post transfer to be a fair reason for dismissal;
• permitting transferees to carry out collective redundancy consultation with the transferring employees prior to transfer;
• making it easier for transferors to make transfer related redundancies prior to transfer.

The deadline for responses to the consultation is 11 April 2013.  Following that,  the proposed changes may come in as early as October 2013 (although there is likely to be a longer transition for the removal of service provision changes).

If you would like further details please contact Marcus Rowland (0207 927 9677) or Seth Roe (01242 631262)

The question of religion in the workplace will be coming under the spotlight over the coming months.

For a start, we’re expecting a decision from the European Court of Human Rights not only in relation to the issue of religious symbols and uniform policy but also on the question of whether an employer is permitted to dismiss an employee for refusing to carry out duties which conflict with their religious beliefs.  The decision of the ECJ is likely to come out within the next few days and will no doubt receive a lot of media interest when it does.

In the meantime, the Employment Appeal Tribunal has recently upheld a decision that an employer’s requirement for all full-time staff to work on Sundays in rotation did not indirectly discriminate against a Christian employee.   In doing so, it has confirmed that, provided that the employer has a legitimate reason and acts in a way that is proportionate, it is entitled to require an employee to do something that may be incompatible with their religious beliefs.

Of course, the decision is not authority for the proposition that it will always be permissible to require an employee to work in a way that may conflict with their religious beliefs: each case will turn on its own facts.  However, it does provide a useful reminder that it is for the employer to prove that the requirement is justified (and not for the employee to show that it was unjustified).

Here’s a copy of the decision: http://www.bailii.org/uk/cases/UKEAT/2012/0332_12_1312.html

If you would like further details please contact Marcus Rowland (0207 927 9677) or Seth Roe (01242 631262)

There’s no escaping from the fact that January is an unremittingly dismal month: it’s usually cold, often wet and it’s invariably dark by mid-afternoon.   It’s also the time of year when it seems to be compulsory for lawyers to offer predictions about what’s going to happen over the next 12 months.  We realise that this rarely makes things any better.  Nevertheless, it would be remiss of us not to point out that we can expect quite a few employment law developments in 2013.

The good news is that many of the changes are designed to reduce the number of tribunal claims.  The not so good news is that many people think that a lot of them are unlikely to work and may instead simply add to the cost of litigation.   We’ll spare you the full list of possible changes.  Instead, here’s a selection of the highlights.

Employment Tribunal Fees

For the first time in their history, Employment Tribunals will start charging fees from this summer.  The precise amount will depend on the type of claim.  Anyone wishing to bring an unfair dismissal or discrimination claim will have to pay a total of £1,200 to take the case to a full hearing (£250 in order to issue the claim and then a further £950 prior to the hearing).   More straightforward and lower value claims, such as for unpaid wages, will attract a total fee of £390 (an issue fee of £160 and a hearing fee of £230).

Whether this will have the desired effect of encouraging parties to negotiate rather than litigate remains to be seen: it may just encourage employers to hold back from making settlement offers in the hope that the prospect of paying a fee will deter the individual from bringing a claim.

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Financial penalties for employers

As a counterbalance to the introduction of fees for claimants, tribunals will be given the power to punish employers who lose an employment tribunal case by imposing a financial penalty of up to £5,000 if the tribunal decides that their breach has “aggravating features”.

Unfair dismissal compensation

On 1 February 2013 the upper limit on the unfair dismissal compensatory award will increase to £74,200.  Although no plans have been announced to change this limit, legislation is being introduced which will give the Government the power to reduce the limit and/or to vary it depending on the size of the employer.

Compulsory ACAS Conciliation

In an effort to reduce the number of Tribunal claims, it is expected that the Government will introduce its plans to require prospective claimants to submit details of their dispute to ACAS first, at which point they will be offered pre-claim conciliation for a period of one month.

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Pre-termination negotiations

Although the Government has confirmed that it has shelved its plan to introduce the concept of “protected conversations”, it will be going ahead with legislation to make pre-termination settlement negotiations inadmissible in subsequent unfair dismissal claims.  The general idea is to “give businesses the confidence to talk to their employees about bringing the relationship to a swift end.”  Whether this materialises remains to be seen.  However, in view of the way in which the legislation is drafted, we suspect that it will be a recipe for more rather than less litigation.

Settlement Agreements

In a move that will no doubt please the Plain English Campaign, “compromise agreements” will be renamed “settlement agreements” later in the year.  This is likely to be the first of a range of measures designed to make it easier for employers and employees settle potential claims.  At some point in the not too distant future, it is likely that we will see the introduction of a model settlement agreement and optional model letters for employers to use in a variety of situations to propose settlement terms.

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Increase in unpaid parental leave

Employers may need to update their policy documents to reflect the fact that, from March 2013, the amount of unpaid parental leave that working parents can take will increase from 13 to 18 weeks per child.  The maximum amount of parental leave that may be taken each year will remain at 4 weeks.

Further extensions to flexible working and parental leave rights are due to be introduced in 2014 and 2015.

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Running payroll in “real time”

PAYE will receive a major shakeup from April 2013 when Real Time Information will be introduced.  This will require employers to report PAYE deductions to HMRC every time an employee is paid rather than just at the end of the tax year.  Penalties will be phased in for employers who fail to comply with the new requirements.

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If you would like further details please contact Marcus Rowland (0207 927 9677) or Seth Roe (01242 631262)