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Archive for February, 2016

Tuesday 16 February 2016

Employment Law Bulletin February 2016

Welcome

Introduction

Back in July 2015 the Chancellor announced a new ‘National Living Wage’ of £7.20 per hour for workers aged 25 or over. Regulations have now been implemented introducing this change with effect from 1st April 2016. The National Living Wage will actually be a new rate of the National Minimum Wage inserted on top of the old structure.

This means that from 1st April 2016 there will be 5 rates of the National Minimum Wage. Those aged 25 or over will entitled to £7.20 per hour. Those aged from 21-24 will be entitled to £6.70. The rate will be £5.30 for those aged 18-20 and £3.87 for those under 18. There is also an apprenticeship rate of £3.30 for those who are under 19 or in the first 12 months of their apprenticeship.

A snooper’s charter?

An early contender for 2016’s most-hysterical-overreaction-to-a-legal-judgment-of-the-year award must surely go to those papers who put the decision of the European Court of Human Rights in Bărbulescu v Romania on their front pages. Reading those reports you would think that the Court had given all employers permission to snoop on employees by reading their emails and other private messages sent while at work. Our favourite was “Your boss now has the right to snoop on your private online messages”.

Age discrimination and early retirement

In employment law we are accustomed to employees complaining because they have been dismissed. In Donkor v Royal Bank of Scotland plc, however, the employee brought a claim because his employer had refused to make him redundant and instead found alternative work for him. The problem was that because he was over 50 he would have been entitled, if made redundant, to take early retirement under the terms of his pension scheme at an additional cost to the employer of some £420,000.

Proving race discrimination – shifting the burden of proof

One of the things that make discrimination claims difficult is that claims often depend on what is going on in the mind of the alleged discriminator. There is rarely direct evidence of discrimination and so tribunals have to rely on drawing inferences from the surrounding facts as to why an employer acted in a particular way. The Equality Act provides that where those surrounding facts could support an inference that discrimination has indeed occurred, then the burden is placed on the employer to prove its innocence.

Dismissal without warning

Where an employee is found to have committed gross misconduct, that will usually result in dismissal. Run-of-the-mill misconduct, on the other hand, should normally only lead to dismissal if the employee is already on a ‘final written warning’. That, at least, will be the case in the vast majority of situations. In some rare circumstances it is possible for an employer to dismiss an employee for misconduct without issuing a warning first.

TUPE transfers and subcontractors 

The complexity of the rules governing the transfer of undertakings under a TUPE transfer is well known. One of the problems faced by both employers and employees is that when there is a dispute about whether TUPE applies or not, there is no objective way of deciding the issue without litigation.

Early Conciliation

We are seeing more and more cases coming through about the operation of the Acas Early Conciliation procedure. Anyone who wants to bring an employment tribunal claim must first contact Acas to allow them to attempt to conciliate a settlement. If no deal is reached, Acas issues the potential Claimant with a certificate – giving them a reference number that must be quoted on any subsequent tribunal claim. One of the odd features of the procedure is that the individual does not have to spell out the details of the claim when contacting Acas – all that is required is that he or she gives the name and address of the employer.

…And Finally – how does it feel?

The first Monday in February was, apparently, ‘National Sickie Day’ when more employees phone in sick than on any other day of the year. One might imagine that any employee who does in fact call in sick on National Sickie day is either seriously ill or is displaying considerable nerve. However the coincidence is not likely to be sufficient to persuade a tribunal that the absence is unwarranted and employers should not rush into disciplinary procedures.

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