In this
update:
Budget 2009: Statutory
redundancy pay on the up
Alistair
Darling, the Chancellor of the Exchequer, has
announced this week that there will be a one-off
increase in the weekly rate for statutory
redundancy pay, from £350 to £380. This will
increase the maximum statutory redundancy
payment from £10,500 to £11,400. However, no
announcement has been made as to when this will
take effect or whether the maximum basic award
for unfair dismissal will also increase at the
same time.
It
has also been announced that the Government is
considering whether to introduce a new 'floor'
which would set a minimum level for statutory
redundancy payment rates. It would legislate on
this in the next Parliament.
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Legal representation at internal
disciplinary hearing
As
outlined in our last Employment
Update, employees are potentially entitled
in limited circumstances to be represented by a
lawyer (as opposed to just a workplace colleague
or union official) at internal disciplinary
hearings, following a recent High Court
decision. The decision may have wider
implications for employers and any request by an
employee to be represented by a lawyer in
disciplinary proceedings should now be
considered carefully.
In
R (on the application of G) v The Governors of X
School, X School commenced disciplinary
proceedings against the claimant, a music
assistant, following allegations of an abuse of
trust with a 15 year old boy. The claimant
requested legal representation at the
disciplinary hearing. This request was refused
and he was dismissed. The School was then
obliged by statute to make a report to the
Secretary of State on the basis that he might be
unsuitable to work with children (the Secretary
of State could then prohibit him from working
with children in educational establishments).
The claimant appealed, but his repeated request
to be allowed legal representation was refused.
The claimant applied for judicial review,
arguing that Article 6 of the European
Convention of Human Rights, which relates to the
right to a fair trial, was breached by the
School's failure to allow him legal
representation at their internal hearings.
The
High Court held that the disciplinary
proceedings and the subsequent reference to the
Secretary of State (with the possibility that
the claimant would be prohibited from teaching),
were part of the same procedure. No distinction
could be drawn for the purposes of Article 6, as
the referral to the Secretary of State was a
natural and likely outcome of the disciplinary
procedure. Due to the gravity of the allegations
and the severity of the consequences, the High
Court held that the claimant was entitled to
legal representation at the disciplinary and
appeal hearings. The fact that the claimant
would have a right to make representations to
the Secretary of State, a right of appeal and a
right to bring a Tribunal claim did not provide
him with sufficient procedural protection.
The
High Court made it clear that its decision in
respect of legal representation at the
disciplinary hearings was confined to the
circumstances of the particular allegations of
misconduct made in this case with the prospect
of a mandatory referral to the Secretary of
State. It has been reported that permission to
appeal to the Court of Appeal has been granted,
so this judgment will be awaited with much
interest. In the meantime, employers are advised
to consider the circumstances of any requests
for legal representation at disciplinary
hearings very carefully.
Whilst
this decision is confined to the particular
issues which arose in this case, the principles
may well be relevant to employees facing serious
allegations which could adversely affect their
ability to pursue a career. Although the case
has more significance for public sector
employers directly affected by the Human Rights
Act 1998, there may be some ramifications in the
private sector, for example, when determining
whether a disciplinary process is fair or unfair
if an individual has been refused legal
representation.
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Discrimination by association
and perception
It
has been announced that the forthcoming Equality
Bill, expected to be published next
week, will extend the prohibition of
"associative and perceptive" discrimination and
harassment to all discrimination strands.
The
Government's decision to extend this prohibition
follows the judgment of the European Court of
Justice in Coleman v Attridge Law, as
reported in a previous Employment
Update.
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Opt-out – latest talks
fail
The
latest round of European talks to agree on the
proposal to remove the opt-out from the Working
Time Directive have failed.
As
reported in a previous Employment
Update, the European Commission delivered an
opinion earlier this year, intended to help the
European Council and European Parliament reach
agreement on the proposed amendments to the
Working Time Directive. The second round of
talks took place earlier this month but no
agreement has been reached on the opt-out. The
negotiating teams are due to reconvene this week
to try and find common ground, for a final
meeting at the end of this month.
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Employers to be named and shamed if fail
to pay tribunal awards
From 1 April
2009, employers, or individuals, who fail to pay
employment tribunal or Employment Appeal
Tribunal awards in England and Wales will now be
entered onto the Register of Judgments, Orders
and Fines once enforcement proceedings are
brought against them in the county court. The
register can be searched by members of the
public and credit reference agencies.
The
Government has taken this measure in order to
give weight to future employment tribunal
rulings, help cut down the time successful
claimants have to wait to receive payment and to
reduce incidences of
non-payment.
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National Minimum Wage - policy on
enforcement and prosecutions
The Department
for Business, Enterprise and Regulatory Reform
(BERR) has published a policy document
setting out how the Government will operate the
civil and criminal enforcement of the National
Minimum Wage (NMW) in the light of changes
introduced by the Employment Act
2008.
The new
enforcement strategy is intended to be a fairer
way of dealing with NMW arrears, providing a
simpler, more effective penalty regime to deter
non-compliance.
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EHRC recommendations for parental
rights
The Equality
and Human Rights Commission (EHRC) has published
a report, "Working Better",
putting forward key recommendations for
reforming parental leave and flexible working
over the next decade. The report proposes a move
towards more "gender-neutral" parental rights,
which would increase fathers' take up of leave.
It also recommends that the right to request
flexible working should be extended to all
employees through their working life. Research
for a second report, concerning disabled
workers, carers and older workers, will be
completed during 2009.
In
relation to parental leave, EHRC recommend a new
approach that would give Britain a "world-class
policy" by 2020. This approach involves:
-
Stage
1 - making small scale changes now to increase
take up by low earners through expanding
eligibility; improving levels of payment and
introducing Paternity Allowance by
2010.
-
Stage
2 - moving to "parental" rather than "maternity"
leave when a baby reaches six months and
introducing dedicated, non-transferable periods
of leave for mothers and fathers by
2012.
-
Stage
3 - introducing gender-neutral parental leave,
with equal access for both parents to paid
parental leave by 2020.
The
report also recommends that there should be
greater flexibility in how paternity and
parental leave can be taken e.g. as days, weeks
or longer blocks of time and that temporary
part-time work should be "a standard option"
during parental leave.
In
relation to flexible working, the EHRC made a
number of recommendations, including:
- introducing
a formal right to request a return to full-time
work after a previous change in working
hours
- removing
the requirement that an employee can request
flexible working only after 26 weeks in the
job
- extending
the right to request to all employees
The
EHRC has called for the BERR Select Committee to
consider its findings and recommendations and
has asked for a high level summit to be hosted
by BERR, bringing together a number of bodies,
including the CBI and TUC, to act on the
recommendations.
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Report into the financial sector reveals
huge gender pay gaps
A new report by the
EHRC has revealed significant gender pay gaps in
the finance sector of up to 60%.
Amongst
the highest earners, the gender pay gap for full
time hourly gross earnings is 45%, while women
working full-time in the lowest paid roles in
the sector receive on average 16% less in hourly
gross pay than their male colleagues.
In
the financial services sector as a whole, female
full-time employees receive 55% less annual
gross pay and 39% less hourly gross pay than
men. These pay gaps are also approximately
double the pay gap figures for the economy as a
whole. 70% of men in the sector earned more than
£29,400 in 2007/8, while 70% of women earned
less than £29,500.
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Employers be warned - candidates more
likely to lie in current climate
The current
economic climate and the resulting competition
for jobs could push candidates to bend the facts
in their favour, with 23% saying that tough
economic times would force them to be liberal
with the truth.
According
to research commissioned by SHL, whilst the
majority of potential candidates are honest,
with 54% saying they would never lie or
exaggerate to get a job, one in three would be
persuaded if the salary made the risk worthwhile
or if it was their 'dream job'. The research
also showed that men can be more prone to being
economical with the truth than women, with 26%
of men compared to 22% of women prepared to
stretch the truth.
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