Employment Law Update – April 2011

Thanks to David Buckle for this great update on . We hope you find it useful!

The final guidance is expected to be published at the end of April or soon afterwards. The draft guidance provides information on:

  • Who is in, and outside the scope of the Regulations.
  • The consequences of working through multiple agencies or for multiple hirers.
  • The effect of different types of absence on the calculation of the 12-week qualifying period.
  • A list of factors relevant to whether a new role given to an agency worker is “substantively different” from the role they were performing previously.
  • What is covered by the concept of “pay”.

I will provide a specific update as soon as the final guidance is produced.

On other news, the national minimum wage increases for October 2011 have been announced. For those aged 21 and over the rate will rise to £6.08 per hour from £5.93. For those aged between 18 and 20 the rate rises to £4.98 per hour from £4.92 and for those aged under 18 the rate rises to £3.68 per hour from £3.64.

Bad news for lawyers

The last month has also seen bad news for some lawyers, although few will shed a tear for my profession. The government has responded to the Jackson report. The Report covers use of no-win, no-fee funding agreements. The government has proposed the abolition of the recovery of success fees in “conditional fee agreements” (where the lawyer charges an uplift on their usual rates for the risks they take) “as soon as Parliamentary time allows”. “Contingency agreements”, where the lawyers take a percentage cut of any winnings as fees and which are used in Employment Tribunals, will also be extended to civil litigation. With significant reduction in legal aid over recent years, clamping down on these agreements could affect access to justice for those on middle incomes. Also, as appears to have occurred in the Employment Tribunals, use of contingency fees may also result in more (weaker?) cases being brought generally.

The government has also proposed reform of the county courts. Proposals include greater use of electronic filing and an increase in financial limits, with claims under £15,000 to be dealt with as small claims. Mediation may also become mandatory for small claims and claims under £100,000 may be required to have a “compulsory mediation information session”.

Sex Discrimination in the workplace

By way of further lawyer bashing, the Employment Appeal Tribunal has found against the law firm, Eversheds, by stating that awarding a female employee a notional maximum score on one of her selection criteria used during redundancies, while confining the male colleague to his actual score, was sex discrimination. Employees who have taken maternity leave should only be treated more favourably than male colleagues as far as is reasonably necessary to remove the disadvantages caused by their condition. The Tribunal said there were less discriminatory alternatives available, such as measuring employees’ actual performance during the period before the woman’s maternity leave started.

In the Employment Tribunals, belief in “the higher purpose of public service broadcasting” is now protected by discrimination law. An employment tribunal has held that such a belief so as to encourage debate and citizenship in a public space is a belief that qualified for protection under the old Employment Equality (Religion or Belief) Regulations 2003 and supposedly the new Equality Act 2010. Understandably, phone tapping is unlikely to be covered.

And finally, an Employment Tribunal has held that a pub manager was fairly dismissed for gross misconduct after she made inappropriate comments on Facebook about two of her customers. Apparently it did not matter that she thought that her privacy settings meant that only close friends could see her entries; in fact relatives of the customers could see it. Keep your friends close…and your enemies and their relatives well off your connection lists.

This article was written by David Buckle of Cubism Law.