Welcome
There's a veritable feast of employment law news in this issue of the bulletin. The recent conference season brought us the ‘Killer Heels' news story:- the TUC has proposed that high heels should be banned in the workplace (and sensible flat shoes made obligatory), on the basis that they are demeaning to women and can cause accidents and long term damage.
Moving on quickly to the latest Government warnings that, while the summer has seen the number of Swine Flu cases drop off (see below), now the flu season is approaching employers should not be complacent. It's interesting to note that in France the peck on the cheek greeting (known as ‘la bise’) has been banned by large firms such as AXA. It has told employees to salute each other with a wave of the hand rather than a kiss or handshake. So, in order to maintain health in the workplace, perhaps employers should insist on employees snapping a sharp salute in the morning by way of greeting.
Swine Flu
The Cabinet Office and Department of Health have confirmed that the number of swine flu cases during summer 2009 has been low and that, since the end of July, the rate of new cases has slowed. However, in a document released on 3rd September 2009, it says: "... early, sustained exponential growth could lead to a substantial growth in the number of cases. A substantial peak could not, however, happen until October".
Regarding absence from work rates, the document says that "absence rates for illness may reach 12% of the workforce in the peak weeks". And regarding the length of the illness:-
- half those people becoming ill recover within about 7 calendar days;
- a further 25% need up to 10 calendar days to recover; and
- 25% have symptoms for more than 10 calendar days".
It should be noted that no account has been taken of the possible effect of vaccination against the virus (which is still in development).
Client refuses to have employee working for it
In the case of Henderson v Connect (South Tyneside) Ltd it was held that, where an employer’s client refuses to have a particular employee working for it, a dismissal will be fair provided the employer has done everything it reasonably can to avoid or mitigate the injustice brought about by the situation. Connect provided a minibus service for disabled children, under contract to the Council who had the absolute right to veto the employment of any individual to provide the service. Mr Henderson, who worked for Connect as a minibus driver, initially had a clear CRB check, but later allegations were made concerning his nieces. The police did not prosecute Mr Henderson and he protested his innocence. Nevertheless, the South Tyneside Safeguarding Children Board had reviewed the case and decided that abuse had taken place and that Mr Henderson should no longer work with children. Mr Henderson was suspended while Connect tried to persuade the Council to reconsider its decision. These attempts failed and, since it had no other roles available for Mr Henderson, Connect dismissed him.
The Employment Tribunal decided that, unlike the employer, the client is under no obligation to behave fairly towards the employee, and "...if the employer has done everything that he reasonably can to avoid or mitigate the injustice brought about by the stance of the client – most obviously, by trying to get the client to change his mind and, if that is impossible, by trying to find alternative work for the employee – but has failed, any eventual dismissal will be fair...”
All Change on 1st October
On 1st October, the cap on a week’s pay increased from £350 to £380 for redundancy payments and unfair dismissal basic awards. Also, the annual increase in the national minimum wage took place, from £5.73ph to £5.80ph for those aged 22 or more. Changes for 18-21 year olds were from £4.77 to £4.83, and for 16-17 year olds it increased from £3.53 to £3.57.
The bar and restaurant trade should note that tips can no longer count towards the national minimum wage.
Information Commissioner - new powers to fine
From April 2010, the Information Commissioner (previously known as the Data Protection Commissioner) will be able to issue fines for knowing or reckless breaches of the Data Protection Act.
Employers need to be aware that they could be fined where they have breached any of the eight data protection principles, which anyone who processes personal information must comply with. The ‘principles’ include the requirement that personal information is fairly and lawfully processed; processed for limited purposes; adequate, relevant and not excessive; accurate and up to date; not kept for longer than is necessary; and kept securely.
The size/limit of fines has yet to be finalised, but we will keep you informed.
The way of the future...
Mothers may soon be able to transfer some of their maternity leave entitlement to the father, under new proposals outlined by the Government. Mothers with maternity leave outstanding in the second six months of a child's life will be able to transfer up to six months to the father. Statutory Maternity Pay will be paid for up to three months of that leave, provided the leave is taken during the mother's 39-week maternity pay period.
Consultation will begin shortly and it is intended that new regulations will be in place by April 2010. To allow time for employers to adjust to the measures, it is expected that the regulations will apply to parents of children due on or after 3 April 2011.
Separately, when speaking at the TUC annual conference, the Prime Minister pledged that “....when Parliament returns our new legislative programme will include equal treatment for agency workers". This would seem to indicate that it is the Government’s intention to implement the EC Agency Workers directive, which provides protection from discrimination for agency workers.
UK retirement age of 65 is lawful
The High court has confirmed that employers can lawfully retire employees at the age of 65 (provided they follow the correct notification procedures). Age UK’s action (better known as the ‘Heyday’ action) against the Government, which has zigzagged across Europe and seems to have gone on for an interminable length of time, has finally come to the end of the road. It wasn’t a complete failure for Age UK, because the Government has agreed to bring forward its review of the retirement age from 2011 to 2010 (a factor the Court took into account when coming to its decision).
And Finally
"Are Your Employees Sexting?" questioned Manpower Employment (USA) earlier this month. ‘Sexting' is apparently the latest way in which employees are getting themselves and their employers into trouble. Wikipedia defines the act of ‘sexting' as sending sexually explicit messages by cell phone. A waitress in Miami is currently suing her employer, alleging that her manager sent her explicit messages and photo's by phone. Manpower recommends educating employees that this type of behaviour can amount to harassment and also to train them in the ‘Mom test'. This involves getting employees to ask themselves, before sending any messages to colleagues, "would I be comfortable if my mother read this"?...
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