Category Archives: employment law

MP’s are calling for ‘substantial’ reduction in Employment Tribunal fees (House of Commons Select Committee)


The House of Commons Select Committee has published its second report into Tribunal fees. The full report can be found here: http://www.publications.parliament.uk/pa/cm201617/cmselect/cmjust/167/16702.htm

Terms of reference

In relation to court and tribunal fees, the l terms of reference of the inquiry asked:

  • How have the increased court fees and the introduction of employment tribunal fees affected access to justice? How have they affected the volume and quality of cases brought?
  • How has the court fees regime affected the competitiveness of the legal services market in England and Wales, particularly in an international context?
  • How will the increases to courts and tribunals fees announced in Cm. 9123, “Court and Tribunal Fees”, published on 22 July 2015, and the further proposals for introducing or increasing fees included for consultation in Cm. 9123, affect access to justice?

The Committee Recommended:

That the Government publish forthwith the factual information which they have collated as part of their post-implementation review of employment tribunal fees. 

  • the overall quantum of fees charged for bringing cases to employment tribunals should be substantially reduced;
  • the binary Type A/type B distinction should be replaced: acceptable alternatives could be by a single fee; by a three-tier fee structure, as suggested by the Senior President of Tribunals; or by a level of fee set as a proportion of the amount claimed, with the fee waived if the amount claimed is below a determined level;
  • disposable capital and monthly income thresholds for fee remission should be increased, and no more than one fee remission application should be required, covering both the issue fee and the prospective hearing fee and with the threshold for exemption calculated on the assumption that both fees will be paid;
  • further special consideration should be given to the position of women alleging maternity or pregnancy discrimination, for whom, at the least, the time limit of three months for bringing a claim should be reviewed.

For employment law advice, please contact Philip Henson – Partner and Head of Employment Law at DKLM LLP. http://www.dklm.co.uk/site/people/profile/p.henson

 

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Employment Law Update – October 2013 (DKLM LLP)


Employment Law Update – October 2013

Following on from the recent costs litigation between Lord Sugar’s company and 2010 Apprentice winner Stella English, this employment law update includes a Q&A about the costs regime in the Employment Tribunal.

1. National Minimum Wage increased to £6.31 per hour

From 1 October 2013 the standard adult National Minimum Wage (NMW) rates increased to £6.31.

2. Q&A – Costs in the Employment Tribunal

The costs regime in the Employment Tribunal is markedly different from the costs regime in the civil courts.

  • Do costs follow the event in the Employment Tribunal?

No. If a party is successful in defending (or bringing) a claim, the Employment Tribunal will not necessarily make a costs order that the unsuccessful party pays the winning party’s costs.

  • Who decides if a costs order should be made?

The Employment Tribunal (Constitution and Rules of Procedure) Regulations set out the criterion for when an Employment Tribunal Judge must, or may, make a costs order.

  • In what type of situation might a costs order be made?

The Tribunal may make a costs order, and must consider whether it should exercise its discretion to do so, where it finds that a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party (the specific grounds); or where a party (or their representative) has acted vexatiously, abusively, disruptively, or otherwise unreasonably in the bringing or conducting of the proceedings; or any claim (or response) that had no reasonable prospect of success (the general discretionary grounds).

  • Does the Employment Tribunal have to consider the paying party’s ability to pay?

When considering either whether to make a costs order, or the amount of the costs order, the Tribunal may have regard to the paying party’s ability to pay.

  • Can an Employment Tribunal Judge make a costs order against a Claimant who is unemployed?

Yes they can. Just because a person is unemployed does not necessarily mean that the Employment Tribunal Judge will not make a costs order. Last year the Employment Appeal Tribunal upheld a decision to make a costs award of c. £87,000 against a Claimant who was both unemployed and unrepresented. However, in that case, decided under the old rules, the Claimant’s claims were misconceived.

3. Financial penalties for losing employers

It has recently been announced that a highly controversial provision of the Enterprise and Regulatory Reform Act (ERRA 2013), will come into force in April 2014.

Section 16 of the ERRA will give Employment Tribunals the power to fine an employer up to 50% of any award (with a cap of £5,000) if they lose and their case has “aggravating features“.  Any fine will be halved if paid within 21 days. The money goes straight to the government, rather than the Claimant.

4. Abolition of discrimination questionnaires

The much derided discrimination questionnaires will be abolished from 6 April 2014. It is hoped that this will reduce some of the initial costs for employers defending discrimination claims.

Contact us

For further information on Employment Law please contact Philip Henson, Partner and Head of Employment Lawp.henson@dklm.co.uk / direct line: 020 7549 7872

If you require any Immigration law advice please contact Fei Yang, Immigration Solicitor f.yang@dklm.co.uk / direct line: 020 7549 7451

DKLM LLP City House, 3, Cranwood Street, London, EC1V 9PE (DX: 36601 Finsbury)

Tel: 020 7549 7888

www.dklm.co.uk

Disclaimer: This update is published by DKLM LLP. Please note that the information and any commentary on the law contained in this update is provided free of charge for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. DKLM LLP accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this update. Further specialist advice should be taken before relying on the contents of this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form without the prior permission of DKLM LLP. © DKLM LLP.

DKLM LLP is a limited liability partnership registered in England and Wales. Authorised and regulated by the Solicitors Regulation Authority.

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A short introduction to UK employment law for Chinese Businesses


A short introduction to UK employment law for Chinese Businesses

This note sets out a précis of some of the issues that Chinese businesses may wish to consider when establishing, or furthering, a commercial presence in the UK, where they intend to employ members of staff.

Employment contracts

Employers in England and Wales are obliged, pursuant to the Employment Rights Act 1996, to give employees whose employment is to continue for more than one month a “written statement of particulars of their employment”. The clauses which are required pursuant to the Employment Rights Act 1996 include:

  • The level of pay (or the method of calculating it) and the intervals at which the employee will receive payment;
  • The hours the employee will be required to work;
  • Holiday entitlement and holiday pay;
  • The employee’s job title, or a brief description of the work;
  • The length of notice which the employee is obliged to give and entitled to receive to terminate the employment;
  • The employee’s place of work;
  • Information relating to pensions and pension schemes; and,
  • Information on disciplinary and grievance procedures.

All of the above terms are commonly incorporated into a contract of employment.

Additional protection

We recommend that our clients include additional clauses in their contracts of employment to further protect their business. Examples of such clauses include:

  • Intellectual Property – Provisions for the rights to any intellectual property created by an employee to be the property of the Employer;
  • Confidential Information – Clauses restraining an employee, both during and upon termination of their employment, from divulging confidential and commercially sensitive information to any person, company or organisation unless expressly permitted to do so by the employer.
  • Restrictive covenants – clauses restraining an employee, following the termination of their employment, from enticing clients and/or employees away from their ex-employer, or working for a company which is competition with their ex-employer for a specified period, (ordinarily between 3-6 months).

If seeking to enforce such provisions employers have to be able to show a legitimate proprietary interest that it is appropriate to protect, and show that the protection sought is no more than is reasonable having regard to the interests of the parties and the public interest.

  • Garden leave clause – Such a clause is commonly invoked when an employee has tendered their resignation. The employee who has tendered his or her resignation remains an employee for their notice period and are paid in the usual way; but they are not required to carry out work, unless specifically instructed to do so by their employer.  “Garden leave” describes the traditional view that during this period senior employees would be tending their garden at home.

The aim of garden leave is to keep employees out of the market place long enough for any information they have to go out of date, or to enable that employee’s successor to establish themselves, particularly with customers.

  • Warranty confirming eligibility to work in the UK – A clause containing a warranty from the employee that they are eligible and entitled to work in the UK.

 

  • Reasonable changes – Although an employment contract is legally binding between employer and employee, a clause may be included which permits the employer to make “reasonable” changes to the terms of the contract (such as minor administrative matters which will not fundamentally alter the terms of the contract) without the employee’s specific consent.

Listed Companies – If you intend to list your company on the London Stock Exchange (or another exchange) then there are additional criteria, and strict rules, which you will need to consider.

Staff handbooks

We recommend that employers also issue staff handbooks to staff setting out policies and guidance. The policies can help to instill the culture of the organisation and sets out what is expected of the employees in terms of conduct.

These policies are usually non-contractual and are aimed to provide the employer with flexibility to modify them in the future; for example, in response to new legislation.  The following are typically included in a staff handbook:

  • Dress Code
  • Expenses Policy
  • Equal Opportunities Policy
  • Anti-harassment and Bullying Policy
  • Sickness Absence Policy
  • Capability Procedure
  • Disciplinary Rules
  • Disciplinary Procedure
  • Grievance Procedure
  • Whistleblowing Policy
  • Maternity Policy
  • Paternity Policy
  • Adoption Policy
  • Parental leave policy
  • Time Off for Dependant’s Policy
  • Compassionate Leave
  • Bereavement Leave
  • Flexible Working Policy
  • Homeworking Policy
  • Time Off for Public Duties
  • No-smoking Policy
  • Health and Safety Policy
  • Stress Policy
  • Substance Misuse Policy
  • Data Protection Policy
  • Electronic Information and Communications Systems Policy
  • Anti-corruption and bribery policies
  • Relocation policy
  • Travel allowance policy

TIP: Consider your existing HR policies

Chinese companies should consider the existing HR policies that they have in place in China (and the geographical extent of those polices), and consider whether they could, or should, also apply in the UK, or if they need to be adapted. Consider the type of benefits, and terms, that are offered to staff, such as: life assurance; permanent health insurance; private medical insurance and company cars.

TIP: Consider immigration issues

It is also important to consider immigration issues early on as the process can take a long time. Consider if you require particular members of staff to work part of their time in the UK, and overseas? Does the Company have a sponsorship licence? Will the company sponsor the visa application of the employee?

Are there any members of staff whom you intend to send on secondment to the UK? If so you should consider having a secondment agreement in place, and also take specialist tax and accountancy advice. Consider whether seconded employees continue to accrue rights and entitlements in China – such as bonuses or stock allowances?

TIP: Consider employee status

Chinese companies would be well-advised to consider the capacity in which their UK staff will work for them. Are they “employees” or “workers” or will they be self-employed contractors who are in business on their own account?

It is important that this be considered at an early stage, especially if your company will only have a small number of staff in the UK to start with. Many companies will revert to retaining self-employed consultants, as opposed to employees, when this may not be appropriate, and/or not reflect the actual legal relationship. To avoid a potential unforeseen tax liability, it is important to ensure the relationship that an employer has with each of its staff falls as clearly as possible into the category of employee, worker or self-employed contractor, and the employer accordingly adopts the appropriate position. It is best to take early legal, and accountancy and tax advice, upon what you are trying to achieve.

Employment law services from DKLM LLP

We provide a partner led commercial and confidential service for employers.  We guide your through the best HR practice from grievance and discipline procedures, performance management, redundancy processes and TUPE transfers to preparing settlement agreements (formerly known as compromise agreements).

If an employee raises a claim against your business we can advise you on the most commercial and cost effective way of resolving that dispute.

We develop a tailored strategy to defend proceedings in the Employment Tribunals, or Court, or by negotiation or mediation.

Call us today on 020 7549 7872

Please call us today to discuss how we can help with any employment law related issues.

We look forward to working with you.

Contact details:

Philip Henson, Partner and Head of Employment Law

Email: p.henson@dklm.co.uk

Telephone: 020 7549 7872

Fei Yang, Immigration Solicitor

Email: f.yang@dklm.co.uk

Telephone: 020 549 7451

www.dklm.co.uk

Disclaimer

Disclaimer: This update is published by DKLM LLP. Please note that the information and any commentary on the law contained in this update is provided free of charge for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. DKLM LLP accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this update. Further specialist advice should be taken before relying on the contents of this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form without the prior permission of DKLM LLP. © DKLM LLP

DKLM LLP is a limited liability partnership registered in England and Wales. Authorised and regulated by the Solicitors Regulation Authority.

 

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New “European Pact” for gender equality for the period 2011-2020


 

        

On 7th March 2011 the The Council of the European Union (at a meeting of the Employment, Social Policy, Health and Consumer Affairs Council) adopted a new “European Pact” for gender equality for the period 2011 -2020.  It has attracted very little attention in the media, but could have a real effect on social policy, and employment relations in the coming months.

 It urges action by the member states and the Union, by taking measures to :

eliminate gender sterotypes, ensure equal pay for equal work and promote the equal participation of women in decision-making; improve the supply of affordable and high-quality childcare services and promote flexible working arrangements; strengthen the prevention of violence against women and the protection of victims, and focus on the role of men and boys to eradicate violence.

It also reaffirms the importance of integrating the gender perspective into all policies including external actions of the EU.

 Gender equality is enshrined in the EU treaty, which states “that the Union shall promote equality between women and men, and that this aim is to be pursued in all Union’s activities”.

Many will question whether this  will be the hammer to finally break the glass ceiling.

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The Right to Strike


The Court of Appeal decision – National Union of Rail, Maritime and Transport Workers v Serco Ltd and another

On Friday afternoon last week the Court of Appeal handed down the eagerly anticipated decision of National Union of Rail, Maritime and Transport Workers v Serco Ltd (and another); which considered, among other things, the unions’ duty to maintain accurate membership data, and suggests (albeit obiter) that the ‘de minimis’ rule can apply to excuse failures not covered by S.232B of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A).

 In this far-reaching judgment Lord Justice Elias rejected the argument that the legislation should be construed strictly against unions because they are seeking to take advantage of immunity.

I am often asked to give media comments on the right to strike, and from where this right originated. Lord Justice Elias gave an excellent précis of the legal position regarding strike action in the UK in his judgment, extracts of which I set out below:

“The common law confers no right to strike in this country.  Workers who take strike action will usually be acting in breach of their contracts of employment.  Those who organise the strike will typically be liable for inducing a breach of contract, and sometimes other economic torts are committed during the course of a strike.  Without some protection from these potential liabilities, virtually all industrial action would be unlawful Accordingly, ever since the Trade Disputes Act 1906 legislation has been in place to confer immunities on the organisers of strikes from certain tort liabilities provided, to put it broadly, that the purpose of the action is to advance an industrial rather than a political objective.  This is achieved by a requirement that the industrial action must be “in contemplation or furtherance of a trade dispute”. The current protection is afforded by section 219 of the 1992 Act (ie TULCRA).  The legislation therefore secures a freedom rather than conferring a right as such”

“There is no legal obligation to hold the ballot as such and a strike is not automatically illegal for that failure alone. However, virtually all strikes involve the workers taking strike action acting in breach of their contracts of employment.  Accordingly, if a ballot is not held, or if it is held but in breach of the legislation, then the immunities are inapplicable and in practice the union will be liable in tort for inducing their members to strike in breach of their contracts of employment.  Although the common law recognises no right to strike, there are various international instruments that do: see for example Article 6 of the Council of Europe’s Social Charter and ILO Conventions 98 and 151”

The Court of Appeal held that:

  • The S.232B accidental failures defence does not require the errors to be unavoidable. However, if a union knows, or must have known, that it was in error it will not be able to rely on the exception;
  • When assessing whether a union has complied with the S.226A(2D) duty to provide the employer with information that is ‘as accurate as is reasonably practicable’ about the numbers and categories of concerned employees, the focus is on the information the union has at the time it notifies the employer, not information it ought to have or which it could obtain;
  • Obiter – the ‘de minimis’ defence continues to apply to ‘trifling errors’ where there is no express statutory defence (ref to British Railways Board v National Union of Railwaymen);
  • A sufficient explanation of the figures provided to the employer under S.226A is one that complies with paragraph 16 of the Code of Practice ‘Industrial Action Ballots and Notice to Employers’, issued in 2005;

This requires unions to describe the sources of their data and states that it is desirable to describe any known deficiencies. In order for an explanation under S.226A to be inaccurate, the description of the process by which the figures were arrived at would need to be ‘positively and materially misleading’;

  • It does not matter if the S.226A explanation is formulaic. If the union obtains the necessary information for each strike in the same way, the description of what it has done will be essentially the same.

Philip Henson, Partner and head of employment law @ Bargate Murray says: “With threats of further industrial action on the horizon, and fears of a Spring of discontent, there may well be efforts for a further appeal to the Supreme Court”.  www.bargatemurray.com

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Shared Parental Leave – what could it mean for the City?


The advent of shared parental leave will bring about a major cultural change.  HR practitioners will no doubt be keen to learn from countries that have already successfully implemented shared parental leave schemes such as Canada, and Denmark; and this may lead to an exchange of ideas between financial institutions in the City. The proposed merger between TMX Group (which operates the Toronto Stock Exchange) and the London Stock Exchange may become a further catalyst for dialogue between HR professionals across the Atlantic on this very issue.

 HR practitioners in the City will follow the forthcoming consultations closely to see how the Government intends to introduce a system to request shared parental leave, and the grounds upon which such a request may be refused. The central issues in the City will be trying to balance a system that is flexible and fair for staff, but also sufficiently certain for business purposes.

 Challenges could include how to deal with an employee who requests to take chunks of leave (if indeed this is permitted) over a period of weeks or months, and how to cover for staff in this way.  All organisations will need to update their existing employment policies and procedures and train staff in due course.

 The Government’s research (contained in the Final Impact Assessment for additional paternity leave) provides a snap shot of some of the factors affecting take up of shared leave in other countries. In Finland, for example, it was found that overall parental leave is shared more often in families where both spouses have a high level of education and middle sized or good income – which may initially indicate that the take-up in the City will be high. However, it is likely that the level of take up will be guided by several factors, including the level of parental leave pay, and of course whether it suits the needs of employees.  Shared parental schemes are already in operation in the UK; last year Santander published plans to offer shared parental leave to staff, and details of their internal consultations may be of interest to the City HR community

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