Maximum compensatory award for unfair dismissal to go... down

The annual review of compensation limits has, for the first time, resulted in a reduction to the maximum compensatory award limit. The maximum compensatory award will drop from £66,200 to £65,300 with effect from 1 February 2010. The reduction reflects the 1.4% drop in the Retail Prices Index from September 2008 to September 2009.

The limit of a "week's pay" (for basic award and redundancy pay purposes) will remain the same at £380.

A response to a discriminatory remark can amount to misconduct

In Orr v Milton Keynes Council, the Employment Appeal Tribunal has held that the fact that an employee had been the subject of racist remarks does not necessarily excuse his response to them and that his behaviour could constitute misconduct, giving rise to a fair dismissal.

The employee, Mr Orr, had been dismissed for gross misconduct due, in part, to his conduct in a meeting at which his manager had made a racist remark. The EAT confirmed that the correct test to apply in these circumstances is the usual test for unfair dismissal to determine whether the dismissal was fair. Mr Orr's contention was that "but for" the discrimination, the dismissal would not have occurred; however, the EAT rejected this approach, stating that discrimination will only be relevant to the fairness of the dismissal if the employer had reached the decision to dismiss for discriminatory reasons.

How not to design a logo

The Office of Government Commerce (OGC) is an independent office of HM Treasury, established to help Government deliver best value from its spending. And it's just paid a lot of money for a swanky new logo. It's on their website, stationery, pens and, no doubt, t-shirts, mugs and mousemats.

OK, it's not HR related - but we can see why its employees dissolved into gales of laughter when they turned the logo on its side...

Anyway, if you want to learn more about this hitherto slightly overlooked Government Agency, the website's here.

One in ten men out of work by 2010

A stark analysis of official statistics by the Chartered Institute of Personnel and Development has shown that the recession is causing more job losses amongst men than women.

The publication, "Men Not At Work", reveals that, whilst unemployment amongst women stands at 6.9%, the number of men without work has climbed to 9%. This is an increase of 50% since the beginning of the recession, compared with a 33 per cent increase for women. John Philpott, the CIPD’s chief economist, has predicted that one in ten men will be unemployed by 2010.

The groups most likely to be out of work are young males aged 18-24 and black men, with one in five out of work. A separate study by the TUC has shown that, amongst the 16-24 age group, 900,000 are now out of work, with this figure set to reach 1 million.

You can read the full story here.

Discrimination: awards for injury to feelings go up

A successful claim of discrimination at an employment tribunal will, in addition to compensation for financial loss, invariably give rise to compensation for injury to feelings suffered as a result of the discrimination. It is a compensatory award, not a punitive award, so tribunals should have regard to the actual injury to feelings suffered and not inflate the award simply because it takes a dim view of an employer's behaviour.

The anti-discrimination legislation does not contain guidance as to how a tribunal should evaluate injured feelings, and employment tribunals have, for a number of years, used the "Vento guidelines", so called after the Court of Appeal's decision in Vento v Chief Constable of West Yorkshire Police (2002).

This case set clear guidelines for the amount of compensation to be given for injured feelings and set out three bands of potential awards. The "bottom band" is applied to less serious cases, such as a one-off incident or an isolated event. The "middle band" is applied to serious cases which do not merit an award in the highest band, and the "top band" is for the most serious cases, such as where there has been a lengthy campaign of harassment. Awards can exceed this only in the most exceptional cases.

In Da'Bell v NSPCC (2009), the Employment Appeals Tribunal has now revised the value of the three bands, to take inflation into account since the Vento case. They are now:

• Bottom band: £600 - £6,000 (up from £500 - £5,000 in Vento);
• Middle band: £6,000 - £18,000 (up from £5,000 - £15,000); and
• Top band: £18,000 - £30,000 (up from £15,000 - £25,000).

The transcript of the case is not yet available, but because the judgment has been handed down it has immediate effect.

Conservatives talking tough on employment law...

Interesting statements of intent are beginning to emanate from Manchester, where the Conservatives are this week holding their party conference. One of their big beasts, Ken Clarke, the shadow business secretary, has promised that a Conservative government would operate a "one in, one out" policy that would require an existing business law to be cut before a new one was introduced, with the aim of reducing the overall regulatory burden by 5%. Members of the public will be invited to nominate unpopular regulations (we can certainly think of a few) to be reviewed by Parliament. More here.

This comes on the back of a promise made last year by Alan Duncan, the previous shadow business secretary, to consult on changes that need to be made to employment tribunals. He's on record describing them as "a pretty grotty system that needs a real shake-up".

Controversial stuff, but we're pretty sure the more cynical out there will wonder whether we've heard this all before...

Legislation coming into force from 1 October...

Government regulations dictate that changes to legislation that affects business can only be implemented on the 1st October or 6th April. In case you hadn't been keeping an eye on your calendar, it's that time again...

Important changes in employment legislation taking effect from 1 October 2009 will be:

• National Minimum Wage
  Increases in the hourly rates of the National Minimum Wage will see the Standard (adult) rate rise to £5.80 (from £5.73); the Development rate rise to £4.83 (from £4.77); the Young workers rate rise to £3.57 (from £3.53) and the Accommodation offset rate rise to £4.51 (from £4.46).
  
• Tips
  From 1 October, employers will be prohibited from counting service charges, tips and gratuities processed through their payrolls towards the payment of the National Minimum Wage.
  
• Maximum limit of a week's pay
  The maximum limit of a "week's pay" will be increased from £350 to £380 - and will stay at this amount until February 2011. This increase will affect all compensation payments to which the week's pay limit is relevant (for example, calculating statutory redundancy payments and basic awards in cases of unfair dismissal).

And last, but certainly not least...

• The House of Lords Supreme Court Rules 2009
  With barely a whimper, from 1 October 2009 the House of Lords will be replaced by the Supreme Court as the highest appeal court. The Supreme Court Rules 2009, which will govern the practice and procedure of the Supreme Court, will also come into force. The Rules will apply to appeals which were proceeding, and petitions for leave which were lodged, in the House of Lords before 1st October 2009.

Heyday decision: employers can force employees to retire at 65

The High Court has just handed down its decision in the Heyday appeal, with the upshot that it is legal for UK law to allow employers to force employees to retire at 65.

The BBC report on the story here - expect to hear a lot more in the days to follow...

Farewell Stratford Employment Tribunal

Well, it's the end of an era - from today, Stratford Employment Tribunal is no more. It's moving to (what we hope will be) plush new facilities in the Docklands area of east London.

The East London Tribunal Service's new address will be: 2nd Floor Anchorage House 2 Clove Crescent East India Dock London E14 2BE. But it just won't seem the same...

More here.

E-mail and Internet misuse at work...

A number of stories have been appearing in the press recently which have caught our eye. In this month alone, it's been reported that

• Portsmouth City Council has blocked access to Facebook after it found that its staff spent up to 572 hours a month on the social networking site (we're presuming collectively and not individually);
• Staff from PC World and Currys.digital, perhaps unwisely, have been busy flooding a Facebook Group with messages labelling their customers “stupid”; and
• A memory stick infected with a virus wrecked Ealing Council’s IT system, leaving it with a bill for £½ million in emergency IT work and lost revenue. Ouch.

The common denominator - misuse of IT. The potential liabilities to employers are enormous - lost productivity, lost income, repair bills, legal action for harassment and defamation... it's enough to make your toes curl into Turkish slippers. An IT policy can help prevent problems arising in the first place by making it clear what employees can and can't do and the potential consequences for transgression. And if things do go wrong, it can help defend claims when they do arise. So, if your workplace relies on computer systems and hasn't devised and implemented an IT policy governing their use, why not...?

EHRC begins legal action against the BNP

The Equality and Human Rights Commission has issued county court proceedings against the British National Party in relation to its constitution and membership criteria. Although it had originally threatened to take legal action in respect of the BNP's employment practices, it has taken the decision not to pursue this aspect of its claim after a commitment by the BNP to comply with the law in this area. The Commission will instead pursue proceedings on the basis of concerns that the BNP will continue to discriminate against potential or actual members on racial grounds.

A hearing date of Wednesday 2 September has been set for the Commission’s application for an injunction against the BNP.

More here.

Pressure group urges a High Pay Commission

Compass - the left leaning pressure group - is urging the government to establish a High Pay Commission to curb excessive pay, "to review top pay and look at measures to ensure excessive pay can't damage the economy again".

It's an interesting proposal - but we can't help thinking that the law of unintended consequences might apply if a government ever did think to tread this path. It's easy to think in terms of pinstriped "fat cats", but it would, presumably, apply equally to footballers. If clubs could only pay up to £100,000 a year, all our sporting talent would ply their trade elsewhere, and talent from overseas would stay there. Hey presto! The Premiership would end up at a level somewhere between the Blue Square Premier League and the Isthmian League (look them up), which we're pretty sure no-one would want to watch. And where would all that lovely tax revenue have to come from then?

Anyway, if there was an easy answer, we're pretty sure someone would have come up with it by now - but you can read the Compass statement here, along with some interesting follow up comments from readers online.

And on the subject of what to put on your CV...

It seems that, in Greater Manchester, exam boards are now giving out certificates for catching the bus. We look forward to this hard-earned qualification featuring prominently on your average resumé...

One in five now lie on their CV

Powerchex - those nice pre-employment screening people - have published their annual pre-employment screening survey. And it makes intresting reading. Amongst other nuggets, the survey reveals that

• the number of candidates whose CVs contain a discrepancy increased this year to 19% – the highest level for three years.
• Brokers have a disproportionately large number of candidates applying to them with hidden criminal records.
• there was a sharp increase this year in the number of under‐21 year olds with discrepancies on their CVs.
• Candidates educated in the state sector are 25% more likely to lie on their CV than those educated in the independent sector.

The "big three" CV fibs are inflating academic grades, overstating job title and duties and lying about the reason for leaving a job. All of which emphasises the importance of getting the recruitment procedure right from the start - and always making job offers conditional upon receipt of satisfactory references!

FSA publishes new rules on pay and bonuses

You wait all week for something to write about and then three stories come in at once...

The Financial Services Authority (FSA) has published new rules on how financial institutions should determine pay and bonuses for staff. In doing so, it makes clear that it wants to see bankers' pay deals linked far more closely with the long-term profitability of the banks. It says that bonuses should not be guaranteed for more than a year, and that senior employees should have their bonuses spread over three years.

Firms have until the end of October to provide the FSA with a remuneration policy statement, which will enable the FSA to check compliance with the code. Non-compliant firms could face enforcement action or, should they pursue risky processes, be forced to hold additional capital.

Well, that's what the press release says - we'll be dissecting the new rules in greater detail and will be reporting on them soon. In the meantime, you can read the new rules here.

Unemployment hits a 14 year high

Official figures released today reveal that, in the three months to June, unemployment leapt by 220,000 to hit its highest rate since the summer of 1995. The Office for National Statistics said that the total number of unemployed now stands at 2.44 million, with 1.58 million now claiming Jobseaker's allowance.

It all means that three quarters of a million people have lost their jobs in the space of a year.

Full story here.

Employment Trends 2009

Have you been wondering how employers are looking to weather the economic storm? A survey of 704 organisations, conducted during April and May, has some pointers for you. It found that a majority of employers are planning a pay freeze for their next pay review (55%), a recruitment freeze (61%) and changing their organisation of working time in order to cut costs (62%). On a more positive note, whilst the average value of a quarter of bonus schemes had been reduced, 62% of the companies surveyed still had their bonus structures in place.

"Employment trends 2009: Work patterns in the recession", published by the CBI and Harvey Nash, is available to download here.

High heels in the workplace? Ban 'em!

According to the TUC, high-heeled shoes are sexist, demeaning to women, a health and safety hazard and should be banned from the workplace. Yikes!

Actually, if you read the motion to be debated by the TUC at its conference next month, the Society of Chiropodists and Podiatrists (who probably know a reasonable amount about feet)think that high heels "can be a hazard" and that "more should be done to raise awareness of this problem so that women workers and their feet are protected." Still, never let that get in the way of a good story, eh?

The "story" is all over the papers, but you can read what The Daily Mail has to say about it here...

Only in America...

While it's been relatively quiet on the employment news front in Blighty, a story from the US caught our eye.

Trina Thompson graduated from Monroe College in New York in April with a degree in IT. Four months on she hasn't found a job... so she's suing the college for the $70,000 she spent on tuition.
Our Trina alleges that the college didn't give her the leads and career advice it had promised her.

With commendable understatement, a college spokesman has said that the claim is "completely without merit".

More here...

Working Time Regulations - doctors in training

A quick reminder - the average weekly working time limits for doctors in training will be reduced to 48 hours from tomorrow, 1 August 2009...

Problems with... presenteeism?

Interesting article in The Times today... managing presenteeism. Is this a bigger problem than the £13.2 billion absenteeism costs British Industry every year? A penny for your thoughts...

Another Bank Holiday in the offing?

Despite the rain, the traffic and the overcrowded beaches, the UK loves its Bank Holidays - but against an EU average of 10.8 public holidays a year, the UK limps in last with only 8. Portugal and Spain enjoy between 12 and 14, and Austria has a whopping 13 every year. Now Work and Pensions Secretary Yvette Cooper has told the Daily Mirror that is to announce that Britain will officially recognise Workers' Memorial Day and will "consider" making it a bank holiday, commemorating people killed at work. A nation celebrates - General Election around the corner, perhaps?

Right to representation at internal disciplinary procedings

It has long been considered trite that, whilst an employee will be entitled to be accompanied by a colleague or a trade union representative at an internal disciplinary hearing, that right does not extend to legal representation. It now seems this is no longer quite the case.

You may recall a case earlier this year concerning a teacher successfully arguing, on Human Rights grounds, that he was entitled to legal representation at an internal disciplinary hearing because, had the allegations been upheld, his employer would have reported him to the Secretary of State on the basis that he was unfit to work with children. The High Court held in his favour because the gravity of the allegations meant that he was entitled to legal representation at the disciplinary hearing.

Now, hot on the heels of this case comes the Court of Appeal's decision in Kulkarni v Milton Keynes Hospital NHS Trust. This case now makes it clear that, where an NHS doctor or dentist in England is subject to a disciplinary hearing on misconduct or capability grounds, that person has the contractual right to a legal representative, instructed or retained by his medical defence organisation, at that hearing.

Of perhaps greater interest is a remark in the judgment which, whilst not forming part of the decision proper, suggests that Art 6 of the European Convention on Human Rights gives a free-standing right to legal representation at internal disciplinary hearings where the allegations are of such gravity a person might be unable to work in the future if they are proved. This would apply to all public sector workers, and is therefore of real significance.

Strictly Age Discrimination: the Arlene saga rumbles on

Selina Scott - who recently settled her age discrimination case against Channel 5 for an undisclosed five figure sum - has waded into the row over Arlene Phillips' unceremonious eviction from Strictly Come Dancing. Arlene (66) is being replaced by Alesha Dixon (30), presumably to contribute to an aim by Auntie Beeb to target younger viewers. It's worth remembering that Alesha is a former contestant of the programme, and is not a professional dancer or choreographer.

The Age Discrimination Regulations tell us that a person A will be discriminating against another person B if he treats B less favourably than he would treat a comparator "on grounds of B's age". The comparator will be another person whose relevant circumstances are the same, or not materially different, to those of B. Unlike other forms of discrimination, direct age discrimination can be justified, so long as the discriminatory treatment is "a proportionate means of achieving a legitimate aim".

So what's a "proportionate means of achieving a legitimate aim" when it's at home? Some examples of legitimate aims which might justify age discrimination have been given by the Department for Business Innovation and Skills (BIS). These include "facilitation of employment planning", "particular training requirements", "encouraging and rewarding loyalty" and "recruiting or retaining older people". An aim which it believed would not be legitimate would be where "a retailer of trendy fashion items wants to employ young shop assistants because it believes this will contribute to its aim of targeting young buyers".

It may just be us, but doesn't Selina have a point? Anyway, you can read what Selina had to say here...

I've got swine flu? Who do I sue?!

It was only a matter of time before someone had the lightbulb realisation that they might be able to sue their employer if they get swine flu. We can't help thinking that, on this occasion, this one's being pushed by a barely concealed need to fill column inches...

Full story here.

Fair access to professions

You will no doubt have seen Alan Milburn doing the media rounds this week, fielding questions on a new publication, "Unleashing Aspiration: The Final Report of the Panel on Fair Access to the Professions". The Report was commissioned by the Prime Minister, was compiled by an independent panel of experts, and weighs in at a hefty 167 pages. It examines barriers to professions, and - to cut a long story short - concludes that top professions contain a degree of elitism which is shutting out young people who originate from middle and lower income backgrounds. It also states that action needs to taken against this "closed shop" mentality, and that the Government should make social mobility its top social policy priority. Whether the Government will be able to act on it with a General Election less than a year away remains to be seen.

If you do fancy wading through the text of the report, you can download it here.

Web photos...

Since Michael Sissons joined us in February, we've been meaning to update the photographs to update our website - and have finally bitten the bullet! We decided to make use of the pretty idiosyncratic features of our offices - the sculpture we're in front of is, in fact, a giant portrait of Alfred Hitchcock. It sits on top of our meeting rooms and is easily the best indicator that you've actually arrived here!

The photographs will be posted to our website very soon - and we're always interested to know what people think.

Tribunals Service 2008-09 Report and Accounts

On 16 July 2009, the Tribunals Service published its 2008-09 report and accounts. They can be read here. Amongst other things, you can read about the Tribunals Service and Acas joint development of a new electronic case management system, Caseflow. Their aim is to bring "greater efficiency and flexibility" to the processing of employment tribunal claims. Caseflow is set to be piloted in late July 2009, with a plan to be rolled out to all employment tribunal offices by summer 2010 - we'll be keeping an eye out for it!

The official employment tribunal statistics for 2008 to 2009 will be published later this year.

Disability discrimination - failure to make reasonable adjustments

The EAT has held, in Fareham College v Walters, that a decision to dismiss can be an unlawful act of disability discrimination by reason of being a failure to make reasonable adjustments. It therefore mitigates the effect of Lewisham v Malcolm. The House of Lords' decision in the latter case, made in June last year, had made disability-related discrimination much more difficult for claimants to establish.

The EAT held that if, at the point at which the employer was considering dismissing the employee, there was a reasonable adjustment which would have avoided the dismissal - for example, allowing the employee to move to another position - the dismissal itself will be an unlawful act of disability discrimination by reason of the failure to make reasonable adjustments.

The full decision can be read here.

Effective date of termination

An interesting case from the Court of Appeal. In Gisda Cyf v Barratt, the Court agreed with an earlier decision of the EAT and held that the effective date of termination was when an employee actually read a letter informing her that she had been summarily dismissed. It was not the date on which the letter was written, posted or delivered.

You can read the full judgment here.