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2014/15 BUDGET

HOW DOES THE 2014/15 BUDGET AFFECT YOUR BUSINESS?

COVERT RECORDINGS

ARE YOUR EMPLOYEES

RECORDING YOUR MEETINGS?

ZERO HOUR CONTRACTS

WE LOOK AT THE DEBATE SURROUNDING

ZERO HOUR CONTRACTS

EMPLOYMENTMATTERS

www.employment-lawuk.co.uk | ISSUE APRIL 2014

DISMISSED FOR ILL HEALTH?

We look at the employment issues surrounding this sensitive subject

NEW FATHERS & PATERNITY LEAVE

A new survey reveals that 1 in 4 new fathers do not take parental leave

SICKNESS ABSENCE BY NUMBERS

We use the ONS’ latest statistics to look at the most common reasons for absences

BUDGET 2014/15

We review the 2014/15 and see how employers will be affeted

READY FOR 6TH APRIL?

Are you ready for the changes coming on the 6th April? Find out how they will affect your business

FOCUS

April Fools - Harmless fun or grounds for dismissal?

2014/15 BUDGET HOW DOES THE 2014/15 BUDGET AFFECT YOUR BUSINESS? COVERT RECORDINGS ARE YOUR EMPLOYEES RECORDING

EMPLOYMENTMATTERS • ISSUE APRIL 2014

02
02

EMPLOYMENTMATTERS

contents

EDITOR’S LETTER

   
 

EDITOR LETTER

  • 4 Richard Burnett comments on some of this month’s features & issues.

 
05
05
  • 5 APRIL FOOLS Harmless fun or grounds for dismissal? We look how four cases ended in dismissal.

EMPLOYMENT UPDATES

  • 6 Employment Solicitor Rachel Hughes looks at some of the changes coming into force in April.

WHY YOU NEED AVENTI

  • 9 We give you 10 reasons why your business needs to Aventi Employment Solutions.

Employment Updates For 6th April 06
Employment
Updates For
6th April
06

SICKNESS ABSENCES

  • 10 Figures from the ONS reveal some interesting statistics on sickness absences in 2013.

1 IN 4 NEW FATHERS

  • 11 A survey reveals that 1 in 4 new fathers are not taking paternity leave.

  • ZERO CONTRACT HOURS
    12 The government’s consultation on ‘zero contract hours’ debate.

2014/15 BUDGET

  • 14 We look at the key points from the 2014/5 budget delivered by the Chancellor.

ILL-HEALTH DISMISSAL?

  • 16 We look at how reasonable it is to dismiss an employee for ill-health.

14
14
 

COVERT RECORDINGS

  • 18 Are your employees secretly recording your

2014/15

meetings on their iPhone?

Budget

 

42

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EDITOR’S LETTER by RICHARD BURNETT Editor EMPLOYMENTMATTERS EDITORIAL & FEATURES Welcome Welcome to the second edition
EDITOR’S LETTER
by RICHARD BURNETT
Editor
EMPLOYMENTMATTERS
EDITORIAL & FEATURES
Welcome
Welcome to the
second edition
of Employment
Matters Magazine
- a dedicated
employment
magazine written
for employers and
business owners.
Employment-lawuk.co.uk
T: 0845 366 4416
E: enquiries@law.uk.com
FREE Downloads
Our website continues to
be a valuable resource
for employers with free
employment guides and
employment letter templates
available to download. We’ve
added three new guides and
new letter templates this
month. Some of the guides
Aventi Employment Solutions
Murlain House
Union Street
Chester
Cheshire
CH1 1QP
and letter templates you can
download include:
April Updates
l
Gross Misconduct
On the 6th April we will see
several important employment
law updates coming into
force including increases
in maternity and paternity
statutory rates and in
compensation awards.
l
Employee Appraisals
l
Planning an Interview
l
Disciplinary
Download them from:
employment-lawuk.co.uk
April Fools
No-one quite knows where
April Fools Day comes from,
but the day of pranks and
practical jokes provides
employers with a timely
reminder of employee
discipline. We look at four
cases where jokes have
ended in dismissal for the
employees.
4
EMPLOYMENTMATTERS • ISSUE APRIL 2014

EMPLOYMENTMATTERS • ISSUE APRIL 2014

APRIL FOOLS
APRIL FOOLS

by RACHEL HUGHES

Employment Solicitor

EMPLOYMENT MATTERS • ISSUE APRIL 2014 APRIL FOOLS RACHEL HUGHES Employment Solicitor A pril Fool’s Day

A pril Fool’s Day is an opportune moment to be reminded that what might be harmless fun for

April Fools

 

some employees may count as bullying or misconduct for others. We list some o f the four worst prank and practical joke that

some employees may count as bullying or misconduct for others. We list some o f the

Harmless pranks or grounds for dismissal?

have ended in dismissal:

have ended in dismissal:

A Wheelie Bin Adventure

In June 2009, security cameras recorded a pub manager being pushed in a plastic wheelie bin by one of the pub’s female employees. The escapade ended in disaster when the bin came to a sudden stop and the manager - Mr Adamson

A Wheelie Bin Adventure In June 2009, security cameras recorded a pub manager being pushed in

A Touch Too Far

fell out and injured himself. The next morning, a mysterious pile of broken glass, which the sore pub manager was unable to explain, was discovered near the customer’s entrance. The wheelie bin adventure was discovered on CCTV footage when senior management

the decision in part because of the employer`s comprehensive bullying and harassment policy, which the manager had b reached. The manager was fully aware of the policy and was in fact responsible for informing the employees in his team about the policy.

‘joke’, adding that he had been unfairly dismissed and his human r ights (under articles of the European Convention on Human Rights) had been violated. The tribunal turned down the appeal adding that his Facebook comments had c ontravened the company’s ‘dignity at work’ policy and had intended to create

became s ceptical about Adamson’s

became s ceptical about Adamson’s a humiliating work environment for the
 

a humiliating work environment for the

account of events occurring the night before. Disciplinary proceedings followed and the employee was dismissed

Manager Bites Back

female employee.

for gross misconduct, a d ecision the

A female council manager was suspended after claims that she bit a male

several office practical jokes.

The Cost of Practical Jokes

dismissed employee appealed. The tribunal upheld the dismissal on the grounds that Mr Adamson had acted in a way that his employer was j ustified in removing its trust and confidence in him to run the premises on their behalf.

colleague’s bottom so hard that he bled. The male employee, in his early twenties, was taken to hospital where he r eceived a tetanus jab as a precaution. The incident was investigated when it was reported to the council’s union - Unison. The incident was thought to be the c ulmination of

Employers cannot afford to be complacent when it comes to practical jokes in the workplace. According to the Health and Safety Executive, harassment and bulling at work costs employers in the UK £2 billion in lost revenue from 80 million lost days each year.

Another appeal to an Employment

Obscene Facebook Comments

Employers are liable under the Equality Act 2010 for what their employees do and

Tribunal has upheld when a manager at a telecommunications firm had allegedly attempted to touch another male colleague`s genitals at a work related social event. The Tribunal found that he was fairly dismissed for gross misconduct despite having worked for the employer for nine years and having an u nblemished disciplinary record. The Tribunal made

A customer service representative was dismissed after posting obscene comments about the promiscuity of a female colleague on his Facebook page. The employee a ppealed the dismissal at an employment tribunal arguing that his comments were intended to be a

say and although they can successfully defend a claim for harassment, they need to prove that they have an effective ‘dignity at work’ policy and can s how that they took practical steps to implement and follow those policies before the harassment occurred.

5
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EMPLOYMENT UPDATES Employment Law Updates: 6th April Rachel Hughes takes us through some of the employment
EMPLOYMENT UPDATES
Employment Law
Updates: 6th April
Rachel Hughes takes us through some of the employment law updates coming into force on
6th April. Is your business ready for them?
O n the 6th of April there are
several important law updates
coming in force that will affect
your business. Below is a summary of
what you can expect:
Tribunal penalties for employers
For the first time, financial penalties will
be introduced for employers who lose
at tribunal on claims brought on or after
6th April 2014. It is important to note
that it will be at the Tribunal’s discretion
to impose a financial penalty on the
employer; the amount of any penalty that
the Tribunal chooses to award will be
50% of the compensation pay-out. This
will be subject to a penalty of minimum
£100 and maximum £5,000, with a
reduction of 50% for early payment.
In cases where several workers bring
a claim together against the same
employer, each of these claims will
potentially give rise to a separate penalty.
In circumstances such as this, the
minimum £100 penalty will apply to the
amount of the penalties in total but the
maximum £5,000 will apply to each of
the penalties/claims individually. Penalties
should be paid to the Secretary of State,
alongside any compensation to be paid to
the employee.
overarching limit of an individual’s annual
salary. The change will also mean an
increase in the maximum for a ‘week’s
pay’, which will increase from £450 to
£464.
Cases where the claimant is successful
in bringing a number of different claims
relating to the same act will be treated
as a single claim. The compensation
awarded to the claimant for each of
these claims will then be added together
and referred to as one award when
considering any financial penalty and
the minimum and maximum amounts
(£100 and £5,000) proposed. However,
where the claimant presents a number
of claims which relate to different acts,
each of these claims may be subject to
its own penalty, and the above minimum
and maximum amounts will apply to each
separate penalty.
Increase in Statutory Rates
In addition to the above, Statutory Sick Pay
will increase on 6th April from £86.70 to
£87.55 and Statutory Maternity, Paternity
and Adoption Pay will go up from £136.78
to £138.18.
Compensation Awards
Increase in Tribunal Fees
The Employment Rights (Increase of
Limits) Order 2014 comes into force on
6th April, which means there will be an
increase in the maximum compensatory
award for claimants of unfair dismissal
from £74,200 to £76,574, subject to the
The Courts and Tribunals Fees
(Miscellaneous Amendments) Order 2014
will come into force on 6th April 2014.
The main effect of the order will be the
re-classification of the below claims as
6
EMPLOYMENTMATTERS • ISSUE APRIL 2014

EMPLOYMENTMATTERS • ISSUE APRIL 2014

“Type B” claims attracting higher fees Companies will therefore need to be before they are permitted
 

“Type B” claims attracting higher fees

Companies will therefore need to be

before they are permitted to bring a claim

(£250 issue fee and £950 hearing fee for a single claimant):

aware of legitimate requests which might fall into this bracket and could later be

to the Tribunal. ACAS will endeavour to then conciliate a settlement; however

  • l Equal pay

contained in letters.

both parties will still be at liberty to

  • l Sex equality in pension schemes

l Sex equality in pension schemes decline participation in this process. All

decline participation in this process. All

  • l Failure to inform or consult under TUPE

Sick Pay Recovery

claims that fall within Early Conciliation

  • l Failure to allow compensatory rest under the Working Time Regulations 1998

Currently, under the Percentage Threshold

will need a certificate from ACAS before the claim is processed by the Tribunal.

  • l Breach of the right to request time off for training

Scheme, employers are permitted to

recover a percentage of statutory sick

 

pay if they have a relatively high level of

Immigration Fines to Rise

 

This update is to change what the government says is a mistake in the original legislation which categorised these claims as “Type A”, bringing with it lower fees of a £160 issue fee and £230 hearing fee. The Order also modifies errors in current legislation regarding the definition of “excluded benefits” relating to fee remissions.

sickness absence. However, as of 6th April, this option will be removed. This could be of significant importance to smaller employers however it is likely that such businesses will benefit from a new helpline advice service, which will accompany a state-funded employee health scheme, set to be introduced at the end of 2014.

At present, any employer who takes on an individual that does not have the right to work in the UK could face a civil penalty, on top of any criminal liability. This penalty is now set to increase and employers could face double the fine, with the current £10,000 limit now set to be capped at £20,000 per employee.

 
“Type B” claims attracting higher fees Companies will therefore need to be before they are permitted

Early Conciliation

Early Conciliation
 
 

Statutory Discrimination

 

More Information

On 6th April statutory discrimination questionnaires will be eliminated. It is important to note that the change will not prevent those who believe they may have been discriminated against from seeking information regarding the discrimination against them. In cases where the employer does not provide sufficient

An initially voluntary process of Early Conciliation will be introduced on 6th April, meaning that all requests for conciliation through ACAS will be treated as Early Conciliation on or after this date. Although it is voluntary, employers should think ahead now and consider how they will respond to ACAS when they make contact, such as allocating a particular

There are many changes coming in on 6th April; if you would like some advice, contact our experienced team of employment solicitors today and we can talk you through the changes you will need to make. Visit our dedicated website www.employment-lawuk.co.uk for more information or call 08444 177 177.

information regarding the discrimination then the case could still go to tribunal which could, in some cases, result in a discrimination claim against the employer.

member of staff (perhaps in the HR team) as the key contact for these calls. Looking ahead to 6th May 2014, most claimants will be required to notify ACAS

Source: Practical Law Company, PLC 2014

7
7

EMPLOYMENTMATTERS • ISSUE APRIL 2014

AVENTI EMPLOYMENT
AVENTI EMPLOYMENT

by RACHEL HUGHES

Employment Solicitor

EMPLOYMENT MATTERS • ISSUE APRIL 2014 AVENTI EMPLOYMENT RACHEL HUGHES Employment Solicitor T his month solicitors

T his month solicitors Hillyer McKeown relaunch their fixed fee support service for employers -

10 Reasons

 

Aventi Employment Solutions. We look at 10 reasons why your business needs Aventi Employment Solutions:

Why You Need Aventi

 
  • 01 access

Support: You will have unlimited

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  • 02 Protection: Aventi’s unique Legal Expenses cover ensures that your

solicitors who can support all your employment and HR needs with complete and commercially sound legal

business is protected from expensive tribunal claims.

  • 03 fixed fee service so you know exactly

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  • 07 Expenses cover ensures that your

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  • 04 Save Management Time: Knowing that your Managers have the resource

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business is protected from expensive tribunal claims. A key feature is that you are not compelled to take our advice about an issue to be covered by the insurance. The small print with other schemes says you must take advice every step of the way and follow the

so confident that you will benefit from our service and renew, you can take Aventi for just 12 months (unlike other schemes which require a 3 or 5 year commitment).

  • 10 reputation

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  • 05 Compliance: Aventi will keep you

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have all your ducks in a row! Aventi also offers health and safety support to ensure you fully comply with your H&S obligations.

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we can offer you access to the full range of

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  • 06 Personal Service: Aventi gives you direct and speedy access to a

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9
9
SICKNESS & ABSENCE by RACHEL HUGHES Employment Solicitor Sickness Absence by Numbers Latest figures from the
SICKNESS & ABSENCE
by RACHEL HUGHES
Employment Solicitor
Sickness Absence
by Numbers
Latest figures from the Office of National Statistics reveal some
interesting statistics on sickness absences during 2013
F igures released by the Office for
National Statistics (ONS) have
revealed some interesting statistics
The Gender Divide
Sickness absence rates were lower in the
private sector in the past year but the gap
on sickness absence during 2013.
l
Women were more likely to be absent
from work than men
has narrowed between the public and private
sector over the last 20 years.
The ONS reported that in 2013, 131 million
sick days were taken by employees in the UK.
Some of the biggest reasons included:
l
Men lost 1.6% of their hours as a
result of sickness in 2013
In an analysis
of
the larger public sector
organisations, the health sector saw the
highest rates of sickness.
l
Women lost 2.6% of their hours to
l
31 million days of sickness absence
were taken in 2013 as a result of
back, neck and muscle pain.
sickness.
Businesses Most Affected
Managers, directors and senior officials are
less likely to take absence due to sickness,
according to latest figures.
l
27 million days were lost as a result
of minor illnesses, such as colds.
The caring and leisure industry
was hit
hardest by sickness absence in 2013 - 3.2%
Sickness Absence Letters
l
15 million days of absence were
taken due to mental illness, such as
stress, depression and anxiety.
of hours were lost in 2013.
The ONS identified that these sectors are
predominately made up of women, who are
more likely to take sick days than men.
Download a sickness absence template letter
free from Employment-lawuk.co.uk. The
letter invites an employee to a formal meeting
to discuss a long period of sickness.
10
EMPLOYMENTMATTERS • ISSUE APRIL 2014

EMPLOYMENTMATTERS • ISSUE APRIL 2014

PATERNITY LEAVE
PATERNITY LEAVE

by SARAH LOWE

Features Editor

EMPLOYMENT MATTERS • ISSUE APRIL 2014 PATERNITY LEAVE SARAH LOWE Features Editor 1 in 4 New

1 in 4 New Fathers Aren’t Taking Paternity Leave

A survey by the Institute of Leadership & Management (ILM) reveals 1 in 4 new fathers aren’t taking paternity leave

  • L ast month, the BBC reported that a quarter of new fathers aren’t taking paternity leave because of a

L ast month, the BBC reported that a quarter of new fathers aren’t taking paternity leave

lack of support from employers, according to a new study.

The research, which was conducted by the Institute of Leadership & Management (ILM) and surveyed employees and managers, suggests that “ingrained” attitudes amongst employers are to blame, with new fathers unsure if they can afford to take leave. Just 9% of those surveyed said they received more than two weeks full pay on paternity leave.

The Government announced plans last year to allow parents to share their maternity and paternity leave from April 2015, but the ILM said these latest findings suggest planned changes could

have a limited impact if the attitudes of employers are not addressed as well.

Charles Elvin, chief executive of the ILM, said: “The introduction of shared parental leave is a crucial step towards enabling more women to progress into senior roles, yet our research revealed cultural barriers are impeding the uptake of both two weeks statutory paternity leave and additional paternity leave.” Mr Elvin said a “cultural expectation” remained within organisations, in that women rather the men are the ones expected to take the extended leave.

two weeks’ paid paternity leave, however additional leave is given if the child’s mother goes back to work and isn’t claiming statutory maternity pay.

Last month, BBC Radio 5 Live heard from Alex Jackson, head of policy at the Forum for Private Business, who said that whilst parental leave is accepted by smaller businesses, issues arise in how the company replace lost skills and if businesses choose to outsource to agencies or spend time training up staff from other teams to cover the absence.

Justine Watkinson, Partner and Head of Employment Law at Hillyer McKeown, said: “This is an area of law that

legislated to give fathers, in principle, the right to take time off after the birth of their baby, if employers frown upon this

and or do not positively encourage this type of behaviour at grass root levels then the legislation will not change habits.

“Ultimately employers who encourage positive and supportive flexible family friendly policies will be the ones who see the best returns from their employees,” Justine continued. “Employers who do this will find that their employees will be more supportive and engaged and will go that extra mile for the business.”

As it stands at the moment, employed fathers are permitted to take either one or

affects many fathers and demonstrates that whilst the government may have

More information: Employment-lawuk.co.uk

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EMPLOYMENTMATTERS • ISSUE APRIL 2014

ZERO HOUR CONTRACTS
ZERO HOUR CONTRACTS
12
12
 

The subject of zero hour’s contracts is a tricky one.

 

Clearly these contracts have benefitted both employers and employees during difficult trading times

 

Justine Watkinson takes us through the latest on the debate on Zero Hour’s Contracts

The government’s consultation on zero hour’s contracts, which launched in December 2013, has received more than 30,000 responses and prompted several statements from key employment organisations.

exclusivity clauses in the contracts are likely to damage relations between the employer and the employee, and calls for new guidance to be issued on the contracts. It suggests that doing this will ensure that both employers and

ACAS states: “We believe that zero hours

ACAS added: “Our response today recommends new guidance on zero hours contracts so that both employees and employers are very clear on the working arrangements they are agreeing to. We also feel that more research is needed

The organisation suggests that workers

The consultation, which closed on 13th March 2014, set out to identify the issues associated with zero hour’s contracts and assess the advantages of using them from the view of both the employer and the individual. The consultation invited views on potential options for the

ACAS, who along with the CIPD has

employees are clear on their working arrangements from the start.

contracts with exclusivity clauses where there is no guarantee of work are likely to have a negative impact on employment relations.

into the use of contractual arrangements in certain sectors of the economy.”

on zero hour’s contracts develop a deep rooted ‘effective exclusivity’ as a result of their inconsistent hours and are afraid of turning down hours or raising questions

government and employers and has since seen responses from ACAS and CIPD.

published its full response to the

“But an analysis of calls to our helpline shows that workers on any type of zero hour’s contract feel a wider sense of exclusion too”.

about their employment rights for fear that their hours are reduced or worse, withdrawn. ACAS suggest this uncertainty “can be very damaging to trust and to the employment relationship.”

consultation online, has commented that

EMPLOYMENTMATTERS • ISSUE APRIL 2014

 

As the economy

CIPD, on the other hand, has gone a step further in its response to the consultation and recommends that the government put forward a complete ban on exclusivity clauses in zero hour’s contacts unless the employer can demonstrate that there is a “compelling business reason” for this type of contract to be in place.

improves and employees gain more influence due to supply and demand, these contracts

Ben Willmott, Head of Public Policy at CIPD, said: “We are recommending that exclusivity clauses should be outlawed unless there is a justifiable and compelling business case for them to be used, for instance where an employee working for a competitor may result in the loss of commercially sensitive or valuable information.

will fall out of favour.

“The nature of zero hours employment means that some people on these arrangements might have more than one job and so it is unfair for employers to require that zero hours staff can’t work for other organisations when they cannot provide work, except in very specific circumstances. We’d also like to see workers who have been working for an employer for 12 months or more given the right to request a minimum number of working hours per week.”

“The nature of zero hours employment means that some people on these arrangements might have more

Justine Watkinson, Partner and Head of Employment Law at Hillyer McKeown, comments: “The subject of zero hour’s contracts is a tricky one. Clearly these contracts have benefitted both employers and employees during difficult trading times over the last few years but as the economy improves and employees gain more influence due to supply and demand, these contracts will fall out of favour. This will particularly be in relation to exclusivity clauses which do inhibit employees’ rights to take a number of different positions and in principle do push the boundaries. It will be interesting to see how the Government responds to this issue over the next few months.”

“ As the economy CIPD, on the other hand, has gone a step further in its

More Information

If you have a question about zero hour contracts then get in touch through our website employment-lawuk.co.uk or email enquiries@law.uk.com.

13
13

EMPLOYMENTMATTERS • ISSUE APRIL 2014

2014/15 BUDGET
2014/15 BUDGET
14
14
 

The 2014/15 Budget:

 

Key Announcements for Employers

 

On 19th March, the Chancellor of the Exchequer delivered the 2014/15 Budget, bringing with

it several changes that will affect employment law.

 
The 2014/15 Budget: Key Announcements for Employers On 19th March, the Chancellor of the Exchequer delivered
The 2014/15 Budget: Key Announcements for Employers On 19th March, the Chancellor of the Exchequer delivered
 
 

Changes to Pensions

Major changes were announced regarding how members of defined contribution (DC) pension schemes will be able to access their pension savings. From April 2015, those at the standard retirement age will be eligible to access pension funds in full and not need to purchase an annuity. They will be taxed at the marginal

the normal retirement age to

provide authorised benefits.

These changes should target the new rules

These changes should target the new rules

tax rate, rather than the

Dual Contracts

55% rate currently applied. Transitional measures to allow immediate flexibility, primarily by increasing the

The Finance Bill 2014 will combat the use of artificial dual contracts by non-domiciled employees. However, following consultation

more closely on dual contracts that are created for tax avoidance rather than commercial purposes.

more closely on dual contracts that are created for tax avoidance rather than commercial purposes.

maximum annual withdrawal cap to 150% and increasing commutation limits, will take

there will be some technical changes to the draft legislation.

 

Apprenticeships

effect from 27 March 2014. A wider consultation on the changes was also launched,

These proposals were published for consultation in January 2014. Following the consultation, the government has decided:

There will be an extension of the Apprenticeship Grants for Employers scheme, providing grants for employers for an additional 100,000 apprenticeships by 2015-16.

 

including proposals to raise

  • l To exclude dual contracts that are not

 

67 in 2028. Also announced

motivated by tax avoidance

 

Occupational Health Treatment

 

were wider powers for HMRC to combat pension

  • l To exclude directors who own less than 5% of their employer’s company’s shares

The government will introduce a tax exemption

liberation schemes including the requirement, from 1st

  • l To exclude income which was earned before 6th April 2014

for amounts up to £500 paid by employers for medical treatments for employees.

September 2014, that any scheme administrator is a

  • l To take account of employments held for legal or regulatory reasons

 

This was first announced in the 2013 Budget

“fit and proper person”, and that HMRC may de-register a scheme where it appears that

  • l To reduce the threshold in the comparative tax rate from 33.75% to 29.25%

and is expected to become available in October 2014, to coincide with the introduction of the Health and Work Service.

the main purpose is not to

EMPLOYMENTMATTERS • ISSUE APRIL 2014

   
 
Related Fuel Benefits providing incentives through the level of will be able to continue to participate
Related Fuel Benefits providing incentives through the level of

Related Fuel Benefits

providing incentives through the level of

will be able to continue to participate

scheme and the new scheme. However,

the van benefit charge.

in the employer schemes for as long as

The government has published in this year’s budget that amendments will be made by the Finance Bill 2015 to the calculation of the value on which

For 2015, the fuel benefit charge multiplier for both cars and vans will increase by the RPI and will be determined in September 2014.

The government has published in this year’s budget that amendments will be made by the Finance

New Childcare Scheme

The government has confirmed that a

The scale of applicable percentages,

The scheme means that working families

The Finance Bill 2014 will amend this

the employer offers it, or may switch to the new scheme. Once the new scheme has commenced, employer-supported schemes will be closed to new entrants. A working family will not be able to

employees who have a company car available for private use will be taxed.

participate in both an employer-supported

For cars emitting more than 94 grammes

the provision of workplace nurseries by

of carbon dioxide per kilometre, the percentage of the list price treated as a benefit will increase by two percentage points per additional 5g up to a maximum

new tax-free childcare scheme will be launched in autumn 2015.

employers will not be affected by the introduction of the new scheme and families will be able to benefit from both.

of 37 per cent in 2017-18 and 2018-19.

which is based on carbon emissions, is set out in section 139 of ITEPA 2003.

will be eligible to claim 20% of qualifying childcare costs for all children under 5 (and children with disabilities under 17)

The new scheme will not depend on participation by employers but employers may have some limited involvement if they wish (for example, in an information or payment provider role). For more

section and introduce the following rates for 2016-17:

and will be available to children under 12 in the first year of the scheme’s operation. To be eligible, parents in the household must be “in work” and earning

information on these changes, please contact our employment team through our website www.employment-lawuk.co.uk.

  • l on average £50 per week, however there

0-50g : 7%

l on average £50 per week, however there 0-50g : 7%
  • l will be allowances for certain workers.

51-75g: 11%

Planning For 2014

  • l Claims will be capped at £2,000 per child

76-94g: 15%

  • l Over 94g: 17% +2% for every additional 5g up to a maximum of 37%.

per year but if one family member is an additional rate taxpayer, the family will not be able to participate.

Make sure you start the new financial year aware of changes in the law and your obligations as an employer. Join

For 2017-18 the differential between the bands will decrease to 3% and for 2018- 19 it will be 2%.

The government is also extending the

The new scheme will replace the current employer-supported childcare schemes. Employees registered for

Aventi Employment Solutions and never miss an update. Visit Employment-lawuk. co.uk to see how little membership to Aventi can cost.

support for zero emission vans by

employer-supported childcare before the commencement of the new scheme

Content sourced from uk.practicallaw.com

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DISMISSALS by SARAH LOWE Features Editor When is it Reasonable to Dismiss an Employee for Ill-Health?
DISMISSALS
by SARAH LOWE
Features Editor
When is it Reasonable to
Dismiss an Employee for Ill-Health?
We look the law surrounding long term illness after an employee was dismissed for taking
272 days off work suffering with stress & depression
A man, who was employed for 35 years by Dundee City
Council in their contracts services department, was
repeatedly signed off sick for eight weeks at a time by
his doctor and the occupational health assessment services
(OH) throughout his absence; the OH stating that he was on
the correct treatment but was seeing no improvement in his
symptoms.
The man brought a claim in the employment tribunal for unfair
dismissal, seeking reinstatement. The tribunal ruled that he
had been unfairly dismissed, stating that the employer hadn’t
conducted a sufficient investigation into his health and that a
further medical report should have been obtained regarding
the prospect of his return. There was a duty to conduct a more
thorough investigation, the court said, given his length of service.
In June 2009, the council asked if the OH could give a report
written by a doctor rather than a nurse, as they felt the
occupational health reports were formulaic and gave no clear
indication of the man’s progress. The OH did not receive or
action this message and so when the next assessment took
place in July 2009, it was once again carried out by a nurse who
gave the same advice as before.
The council appealed against the finding and the Employment
Appeal Tribunal (EAT) held that the tribunal had imposed a very
high standard of investigation on the employer and that the
length of service was not relevant to the investigation. It said
the case should be remitted for the tribunal to look at the key
question of whether the council could be expected to wait any
longer in deciding to dismiss him.
The council met with the employee the following month to speak
about his condition and a possible return to work. He was given
a return date of 14th September 2009 and the council indicated
that it may consider terminating his employment if he did not
return on this date. The employee was offered a chance to
appeal this however he chose not to.
The employee appealed to the Inner Court regarding the decision
of the EAT to overturn the judgement, however the Inner House
agreed with the EAT regarding how the tribunal had approached
the matter and agreed that the case should be remitted. It said
that the tribunal had failed to give sufficient regard to some of
the key principles of the case, which are:
On 11th September, the man was seen by an OH doctor who
said he was showing signs of improvement and should expect
to return to work within one to three months, but this was
dependent on when his GP signed him fit. The man was signed
off sick for a further four weeks by his GP and did not return to
work on 14th September.
l
Raising the question of whether an employer can be expected
to wait any longer to dismiss an employee in cases of long-term
sickness.
l
Consulting an employee to take his/her views into account.
l
Understanding the medical position of the employee, however
the employer itself is not required to pursue a detailed medical
examination.
A meeting was organised on 23rd September to consult the man
about a proposed dismissal for ill-health. He indicated during the
meeting that he did not feel he was getting any better and taking
this into account, along with the latest OH opinion, the council
made the decision to dismiss him on the basis that a return to
work in the near future seemed unlikely and that there was “no
light at the end of the tunnel”. The man appealed against this
decision but was unsuccessful.
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While this case highlights that an employer is permitted to take
a medical report at face value, however vague or unhelpful, if
an employer looks to clarify the medical position earlier, this will
normally lead to better decisions being made. Arguably in this
case, the poor quality of the information provided had a negative
impact on the employer’s decision-making, giving rise to points
which were ripe for appeal. The nature of the reporting provided
by a nurse could have possibly been challenged earlier, which
may have meant matters could have been brought to a head
sooner.
EMPLOYMENTMATTERS • ISSUE APRIL 2014
COVERT RECORDINGS by SARAH LOWE Features Editor Covert Recordings With an increase in the number of
COVERT RECORDINGS
by SARAH LOWE
Features Editor
Covert Recordings
With an increase in the number of employees recording
meetings with the intention of using them at tribunal we look
at the implications these recordings have for employers.
I t has been reported that some employees are secretly
recording meetings with managers with the intention of
using them as evidence at employment tribunals. With the
In that case, the EAT was asked to rule on whether a covert
recording of a disciplinary hearing and the private deliberations
of the disciplinary panel was admissible in evidence.
prevalence of sophisticated portable recording devices (including
on many mobile phones) it’s a trend that looks likely to continue.
As an employer you may well wonder if such a practice is fair
or reasonable. Certainly, tribunals described covert recording as
a ‘very distasteful’ and ‘discreditable’ practice. However, case
law suggests that this in itself may not be enough to make them
inadmissible as evidence.
I f an employee hides a tape recorder and captures comments
made during his employer’s private deliberations during a
grievance and disciplinary hearing, is that evidence admissible
in an employment tribunal? Normally yes, especially if it does
not form part of the employer’s deliberations on the matters in
question, held the Employment Appeal Tribunal (EAT) in Punjab
National Bank v Gosain.
T he claimant in this case had been dismissed for gross
misconduct and issued a claim of unfair dismissal in the
employment tribunal. Following the standard disclosure order,
the claimant’s lay representative disclosed a large number of
documents, including three “records” of the disciplinary and
appeal hearings, including the panel of Governor’s deliberations.
The fact that the claimant had made these recordings of her
employer without the panel’s knowledge or consent became
apparent at the tribunal hearing, which was then adjourned.
However, the employment tribunal ruled that the claimant
would be able to admit the recordings of the main hearings as
evidence, if she disclosed the actual recordings and transcripts,
before the rescheduled hearing.
I n this case, the employer was alleged to have made wholly
inappropriate comments about the employee when she was
out the room; these had (allegedly) been captured on a covert
recording. The EAT stated that the correct test is to undertake
a balancing exercise, setting the general rule of admissibility of
relevant evidence against the public policy interest in preserving
the confidentiality of private deliberations in the internal
grievance/disciplinary context.
T he employment judge had correctly distinguished Amwell View
School Governors v Dogherty, as the private material recorded
in this case fell well outside the area of legitimate consideration
of matters within the grievance and disciplinary panels’ remit.
T he respondent sought a review of the employment tribunal’s
decision and argued at the EAT that the recordings should not
be admitted on several grounds. The argument that there was
a breach of their human rights (the Governor’s right to respect
for private and family life), as the Governors were performing
a quasi-public function and could not rely on such privacy. The
EAT also found that the recordings could not be excluded on
the grounds that they had been made ‘illegally’, unless it could
be shown that there was authority for that, or there were public
policy reasons to exclude them – for example, the recordings
were made in breach of contract or in breach of any statutory
provision. There were no such provisions in this case and the
claimant was able to argue that her right to a fair hearing on the
best available evidence would be compromised if the recordings
were excluded.
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EMPLOYMENTMATTERS • ISSUE APRIL 2014

EMPLOYMENTMATTERS • ISSUE APRIL 2014

 

it. As an aside, last month the EAT separately upheld a decision to award costs against the Claimant in this case (estimated to be around £87,000), despite the fact she was unemployed and unrepresented before the tribunal.

Covert recording of private deliberations may not be admissible due to public policy reasons. The case law in this area suggests, however, that even these deliberations may be admissible if the employee involved says that they are the only evidence of alleged discrimination.

T here are no specific rules for

employment tribunals about the

T he EAT held that an employee who covertly recorded her own disciplinary hearing could use the recording in evidence before the tribunal, but that her covert recording of the private deliberations of the disciplinary panel was not admissible on grounds of public policy. There was a public interest in maintaining respect for the private deliberations of a disciplinary panel.

that they were of probative value. The EAT acknowledged the correctness of this decision as the claimant refused to provide the recordings and transcripts, but decided that there was no absolute reason why none of the recordings should be admitted in evidence, as parts of them could be potentially relevant to the issues and ought to be admitted in the interests of justice.

admissibility of covertly obtained evidence. Instead, the employment tribunal has a wide discretion over whether to allow evidence to be considered. If the evidence is relevant and it would be proportionate to allow it, then it may be admitted. However, the employment tribunal may still order that such evidence be excluded, if it is disclosed late; would breach the Human Rights Act 1998; or should be excluded

More recently, in February 2013, the EAT

I n his judgment, the Honourable Mr Justice Underhill made this comment:

as a matter of public policy.

considered the case of Vaughan v London Borough of Lewisham UKEAT/0534/12, which involved arguments relating to the claimant’s application to adduce in evidence 39 hours of recordings she had made of her interactions with managers and colleagues, to support her claims of disability discrimination, victimisation and harassment, whistleblower detriment and unfair dismissal. The recordings included recordings of disciplinary hearings, where the employer made official notes, the accuracy of which were disputed by

“ We should say…that the practice of making secret recordings in this way is, to put it no higher, very distasteful; but employees such as the claimant will no doubt say that it is a necessary step in order to expose injustice. Perhaps they are sometimes right, but the respondent has already made it clear that it will rely on the claimant’s conduct in making these covert recordings, as illustrative of the way in which her conduct had destroyed any relationship of trust and confidence between her and it.”

Employers may want to prohibit recording in their procedures and policies, but experts suggest that this won’t deter some. Better advice, they maintain, is for managers to assume they are being recorded and to remember that what they are saying may be admitted as evidence in a tribunal. Better still would be to cultivate an open and supportive atmosphere in the workplace, where disagreements are dealt with swiftly and sensitively before getting out of hand. Where there’s trust and mutual respect,

the claimant. The claimant in this case did not supply copies of the transcripts, nor the ‘tapes’ (which were actually held on an iPod) and the employment tribunal rejected her application to submit the recordings as evidence, on the grounds that she had not shown

T he EAT also recognised that the respondent in this case would rely on the claimant’s recordings as evidence as to her credibility, since she had been asked on previous occasions whether she had made such recordings and had denied

employees would not feel any need to make secret recordings.

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