Friday, 26 March 2010

Employee who was Sick for a Year Entitled to Rely on Unfair deductions to Obtain Holiday Pay

In the light of the ECJ and House of Lords judgment in Stringer & ors v HMRC [2009] ICR 985 an employment tribunal at Sheffield has now held that an employee who was off work sick for the whole of a holiday year was entitled to holiday pay as a wrongful deduction from wages.

There is now available on the emplaw web-site a transcript of the Sheffield Employment Tribunal's January 2010 judgment in Rawlings v The Direct Garage Door Company Ltd.

Thursday, 25 March 2010

Chamber of Commerce Wants ACAS to Vet ET1s

The British Chambers of Commerce, with the help of employment lawyers at Brabners Chaffe Street, have produced a report entitled "Employment Regulation: up to the job? with the aim of improving the process of going to an employment tribunal.

The main purpose of the report is to present "a number of ways that employment legislation and the Tribunal system can be rebalanced, resulting in reduced costs, less bureaucracy and improving the competitiveness of the UK economy".

Out of the lengthy report one of the proposals would be that:

Any claimant who has not received professional advice would be obliged to go through their ET1 form with Acas before submitting their claim. The idea is that this would prevent claims with no real chance of success getting into the tribunal system at all, thus saving time and money for both the employer and the Tribunal service.

This ill conceived plan in my view relies heavily on untrained lawyers to give legal advice. We all know that trained lawyers come with varying degrees of competency but to expect ACAS mediators to know the law and take responsibility for what is in essence, legal advice seems like an onerous burden to lay at their feet.

The report also suggests an enforced mediation with ACAS in some cases with the penalty of a longer wait before being heard at tribunal for those uninterested. This fast track ACAS conciliation system would be applicable for employees claiming less than £3,000.

Again, this enforced mediation forgets that the process of employment litigation already has the ACAS grievance and dismissal/disciplinary procedures in place which holds the threat of financial penalties for those not adhering to mediation rules.

Stangely, the report also states that employers should not have the same health and safety responsibilities towards remote workers and lone workers as they do towards office based staff. If this latter proposal alone were to be introduced it would have to overturn entrenched principles found in law and would certainly require legislation in order to introduce it soundly.

Wednesday, 24 March 2010

New Legal News Site Launched is an online legal community and offers something fresh to all those with an interest in law. Not only firm news is covered but also legal developments in a range of areas. There is also training news and a novel section of MP4 videos offered by law firms.

Monday, 15 March 2010

The Equality Act and New Law to Protect the Disabled

It is likely that this huge piece of legislation will soon become law. The 3rd and final reading of the Equality Bill is scheduled for March 2010. Large parts of the Act are likely to come into effect in autumn 2010, 5 years after the Discrimination Law Review launched in 2005.

The Act repeals and replaces the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995, much of the Equality Act 2006, the Employment Equality (Religion or Belief) Regulations 2003, the Employment Equality (Sexual Orientation) Regulations 2003, the Employment Equality (Age) Regulations 2006, and the Equality Act (Sexual Orientation) Regulations 2007 (all as subsequently amended), plus other ancillary pieces of legislation. At first blush this should make discrimination law far more concise and easy to navigate.

The Act is more ambitious however, than a simple piece of legislation aimed at consolidating preceding material; new legal concepts such as 'perceived discrimination and 'Protected Characteristics' emerge for the first time.

There will be increased support for disabled people in the Equality Act

Enquiries About Health - Pre-Employment

The Act is likely to include a new clause 40 on pre-employment enquiries about disability and health, which should diminish the likelihood of disabled not reaching the interview stage.

If an applicant claims that a potential employer has enquired about his or her health before making 'a relevant decision', the new clause 40 shifts the burden of proof onto the employer so that, in the absence of any other explanation, the tribunal must hold that a contravention has occurred. A relevant decision is one that determines progression to the next round of the application process or a decision on who gets the job.
Employers can ask some questions relating to disability before employment however, the section will not apply to questions which are necessary to establish whether;
a duty to make reasonable adjustments arises;
to monitor diversity in applicants;
to enable an employer to take positive action;
or, if the employer requires a potential employee to have a particular disability, the questions necessary to establish this.

This will soon form part of a CPD course found on

Sunday, 7 March 2010

Counter Claim Confusion

Counter claims are a useful tactic for putting pressure on a Claimant if nothing else but remember under the ERA that you can only add a counter claim as a Respondent if the Claim is for a contractual breach.