Articles page - Supplied by Ingrams Solicitors

August 2008

EMPLOYMENT LAW UPDATE

Can you believe an applicant’s CV?

It is accepted that many job applicants exaggerate in their CV, but where is the line drawn between exaggerating and lying?

As an employer, you want to appoint the best candidate for your business, but you are also under certain obligations to make checks on that candidate. For example, employers are now under an obligation to check that candidates have the right to work in the UK (see www.bia.homeoffice.gov.uk).

There are basic checks that should always be made, such as checking references and academic qualifications. When it comes to the latter, simply asking to see original certificates will usually be proof enough. You may also consider checking a candidate’s criminal record. A check at the Criminal Records Bureau can reveal any disclosable convictions. This is a legal requirement where the candidate will be working with children and vulnerable people.

Doing these basic checks will not only ensure you employ the right candidate, it will also minimise your recruitment costs and ensure that you avoid falling foul of immigration legislation.

Offering redundant employees alternative employment.

Under the Employment Rights Act 1996 a redundant employee who unreasonably refuses a suitable alternative role forfeits their right to a redundancy payment.

The issue for employers therefore is: What is a suitable alternative? In the recent case decision of Commission for Healthcare Audit and Inspection v. Ward, an Employment Tribunal ruled that amongst the factors to take into account is the employee’s perception of the role when they are asked to make a decision.

It is therefore critical that employers communicate effectively with redundant employees and make clear exactly what the alternative role involves, and the reasons why it is a plainly suitable alternative rather than a marginally suitable alternative.

As with all cases of this type it is for the employer to show that a refusal is unreasonable, and therefore putting the employee in an informed position is essential.

Employees to be given time off to train

On 18^th June 2008 the Government launched a new consultation process on whether employees should be given the right to time off for training purposes. The consultation will remain open for 3 months, and if implemented it is expected that new measures would be implemented in 2010.

The scheme would work in much the same way as requests for flexible working time. It is proposed that only those employees with 26 weeks service would be eligible and, as with requests for flexible working time, employers with a sound business reason would have the right to turn down a request.

The Government has not set any limits on the time taken off for training, and it is proposed that this be agreed between the employer and the employee. The consultation paper also suggests that remuneration arrangements are also agreed between the employer and employee, with the suggestion of paid leave or alternative working arrangements to accommodate training.

Gillian Markland of Ingrams Solicitors believes that this scheme could be of great benefit to employers. “A fully trained workforce is likely to improve the employer’s end product, and therefore the long term benefits could far outweigh the short term costs of allowing employees time off”

Health and Safety

With the Corporate Manslaughter Act becoming law on 6^th April 2008 all employers must now be aware of their responsibilities under Health and Safety Legislation. All employers owe a duty of care to their employees, and with the new offence of “corporate manslaughter” being introduced by the Act this is a duty all employers should take very seriously, warns Lorna Pratt of Ingrams Solicitors.

A company will be found guilty of the new offence if the way it manages its activities amounts to a gross breach of its duty of care which results in a person’s death. All firms should therefore ensure that they put in place procedures that comply with current health and safety legislation, and keep these under regular review.

Any company found guilty under the Act could face an unlimited fine, and the Court could also order the details of the offence to be made public, causing further damage to the business’ reputation.

July 2008

EMPLOYMENT LAW UPDATE

Can controlling shareholders also be employees?

In the case of Clarke v Clarke Construction Initiatives Ltd the Employment Appeal Tribunal (EAT) confirmed that a Tribunal had been entitled to find that a majority shareholder of the company was not also an employee. They identified three categories where there may be no employment contract:

Where the contract is entered into for some ulterior purpose;
Where the company itself is a sham;
Where the parties do not conduct their relationship in accordance with the contract.

Applying the above guidelines, the Employment Appeals Tribunal in Neufeld and A&N Communications In Print Ltd and anor (In liquidation) held that the majority shareholder (90%) was an employee of the business. They took into account the fact that he did not overpower the views of the other directors; although he received dividends and was guarantor this was not inconsistent with his being an employee; he conducted himself in accordance with his contract of employment (even though he did not take full holiday entitlement and worked very long hours); and the absence of a written contract did not undermine his case as the other directors did not have one either. In the circumstances therefore, he could claim a redundancy payment, notice pay and holiday pay from the Secretary of State for Trade and Industry (now Business, Enterprise and Regulatory Reform) when the business became insolvent.

Employers must take care when dismissing employees suffering from ill-health

A decision by the Employment Appeal Tribunal in the recent case of The Governing Body of Hastingsbury School –v- Clarke reminds employers to investigate any ill-health issues before deciding to dismiss. In this case the Claimant was dismissed before the employer had obtained and considered medical evidence which resulted in the EAT upholding the Tribunal’s view that the dismissal had been unfair as no reasonable employer would have dismissed without at least taking steps to investigate further. Gillian Markland, Head of Employment, says: “This case once again shows that employers should not rush into dismissing someone on the grounds of ill-health without first obtaining medical evidence.”

Distinction between ordinary and additional maternity leave to be removed

Proposals have been put forward in the draft Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2008 which will give the same rights to employees on additional maternity leave (AML) as those on ordinary maternity leave (OML). This would apply to women whose expected week of childbirth (EWC) begins on or after 5 October 2008. There are to be similar distinctions between the rights of employees on ordinary adoption leave and additional adoption leave are also removed.

This means that women on AML will be entitled to the same benefits of all the terms and conditions of employment which would have applied if they had not been absent. In addition their seniority and pension rights will also be unaffected by their absence.

The reason behind these changes are as a result of the High Court's decision in Equal Opportunities Commission v Secretary of State for Trade and Industry 2007 ICR 1234 which held that the Sex Discrimination Act 1975 did not fully implement the UK Government's obligations in respect of sex discrimination under European law.

Can a redundant employee unreasonably refuse the offer of alternative employment?

In the case of Ward –v- Commission for Healthcare Audit and Inspection an employee refused the offer of alternative employment and made a claim for a redundancy payment. The Employment Appeal Tribunal held that the employee was reasonable in rejecting the offer as the suitability was “marginal rather than overwhelming “. Lorna Pratt, Legal Executive, says: “This case highlights that any offers of alternative employment must be suitable for the particular employee and key factors include pay, nature of duties, status, hours and place of work.”

If you are affected by any of the above situations or if you would like to discuss any employment law problem affecting you or your business, please contact either Gillian Markland or Lorna Pratt on 01904 520600.

June 2008

CONTRACTS OF EMPLOYMENT

We cannot over emphasise the importance of an employer providing an employee with a written contract of employment. Not only is it a legal requirement for employers to provide a minimum written statement of particulars but a more detailed written contract offers enhanced protection for an employer.

The contract of employment is a legal agreement between an employer and an employee setting out the basis of their working relationship.

It is a legal requirement for an employer to provide a statement of particulars within 2 months from the start of employment. This must include:

names of the parties;
date employment began (including any continuous service);
place of work;
job title;
rate and intervals of pay;
hours of work;
holiday, pension, sickness provisions;
grievance and disciplinary procedures;
if not a permanent position, the expected date when it is to end;
any collective agreements;
notice periods; and
confirmation as to whether an employee is required to work outside the UK.

Failure to provide such a statement could render an employer liable to pay compensation and face an Employment Tribunal claim at which the Tribunal will determine what particulars ought to have been included in the s.1 statement. In addition, it will be an uphill struggle to try and convince an Employment Tribunal that you are a reasonable and fair employer if you have not issued any such particulars.

It is in the interests of an employer to provide a more detailed contract including additional clauses. Such clauses could deal with, for example, restrictive covenants which are used to prevent employees from competing or from going to a competitor for a specified period following their employment. Such a clause could be highly important if a key member of staff leaves your business. Further clauses could include recovery of training fees, commission structure and garden leave clauses.

If you would like to discuss any aspect of contracts of employment, or employment law in general, please contact Gillian Markland or Lorna Pratt at Ingrams Solicitors on 01904 520600.