Questions and answers

first_img Comments are closed. Previous Article Next Article Questions and answersOn 1 Jun 2000 in Personnel Today The employment law team at Shadbolt and Co answer a range ofworkplace questionsPart-timers’ rights Q: What rights will part-time employees have once the new regulationsare in force? The imminent introduction of the Part-Time Employees (Prevention of LessFavourable Treatment) Regulations will impose obligations on employers toextend equal or pro-rata terms and conditions to part-time employees. This willgive employees a statutory right not to be discriminated against on the basisof their part-time employment status. In a workforce where one in three employees is predicted to be part-time by2001 the regulations will give equal rights to statistically large numbers ofwomen as well as men. So who will benefit and how? In the proposed regulations, a”part-time” employee is an individual who works under a contract ofemployment and is paid wholly or in part by reference to the time he or sheworks and is not identifiable as a comparable full-time employee. To comply with the law, part-timers should receive the same hourly rate ascomparable full-timers and the same rate of overtime pay once they have workedmore than the normal full-time hours. Contractual holiday entitlement, sick andmaternity pay must also apply to part-time employees pro-rata and employersmust not discriminate over access to pension schemes. To avoid claims of lessfavourable treatment, employers must extend access to all fringe benefitsalbeit on a pro rata basis. Once the regulations are in force a part-time employee will be able to bringa claim for back pay and there is to be no qualifying period of service. Withregulations guaranteeing equal or pro-rata rates for employees on fixed-termcontracts due in July 2001, employers will need to consider the compliancecosts inherent in both sets of regulations. Amanda Bodkin Compromise agreements Q: Can a compromise agreement settle all claims between employee andemployer? Previously, a compromise agreement could settle all claims between the parties,howsoever arising. But the case of Lunt v Merseyside Tec, 1999, ICR 17, haschanged the position. Following a letter from the employee to the employer indicating thecomplaints she intended to bring if no settlement was reached, the partiesentered into a statutory compromise agreement under which the employee’semployment was terminated and she accepted payments “in full and finalsettlement of all claims”. The employment tribunal dismissed the employee’s claim for unfair dismissaland breach of contract because the compromise agreement was valid and bindingin those respects. But the agreement did not cover her claims for equal pay and sexdiscrimination. The EAT upheld this decision and decided that section 203 ofthe Employment Rights Act 1996 had been satisfied because the agreement relatedto a particular proceeding. However, section 203 did not allow an agreementcompromising potential complaints that had not yet arisen on the off-chancethat they might be raised. The agreement also referred only to the Employment Rights Act 1996 and notto the equivalent provisions of the Sex Discrimination Act 1975, and the EATseems to have held the agreement to have been invalid for this reason. This case illustrates the importance of complying with the requirements ofsection 203 and shows that it is not enough to refer to a rather speculative”all claims” because this excludes complaints which the employee hasnot yet made to the employer. Amanda McGurran Maternity rights Q: What rights accrue during ordinary maternity leave and additionalmaternity leave, and what remuneration is an employee entitled to? During ordinary maternity leave an employee is entitled to the benefit ofher terms and conditions of employment, except for remuneration. Remunerationis defined simply as wages or salary. It is not clear from the regulationswhether pay rises, bonuses and commission are payable during ordinary maternityleave. Case law has established that employees are entitled to the benefit of payincreases awarded while on maternity leave. (Gillespie v Northern Health andSocial Services Board, 1996, IRLR 214). The position in relation to bonuses andcommission still remains unclear. On additional maternity leave, the employee is entitled only to the benefitof her employer’s implied obligation of trust and confidence and any terms andconditions of her employment that relate to notice, compensation in the eventof redundancy or disciplinary or grievance procedures. The employee will not therefore be entitled to benefits such as her companycar, pension or permanent health insurance while on additional maternity leave,unless there is an agreement to the contrary with her employer. Under the new regulations, statutory maternity pay is payable for 18 weeks –the ordinary maternity leave period. Employees taking extra maternity leavewill not be paid beyond the 18-week period unless there is a contractualprovision to that effect or they have reached an agreement to be paid withtheir employer. Rebecca Kettell Age discrimination Q:  Can we recruit a candidatewho is less suitably qualified for a position who is 45 years old, rather thana better-qualified candidate aged 58? Studies show that employers place unwarranted emphasis on age in therecruitment process. There is, however, at present no law against agediscrimination in the UK. The matter is currently under consideration by theGovernment and in June 1999 the Department for Education and Employment issueda code of practice, “Age Diversity in Employment”. The code coversgood practice in all aspects of the employment cycle, from recruitment toretirement. Unlike the Acas code of practice on disciplinary practice and procedures onemployment, the code does not have statutory backing. There is no legalobligation on employment tribunals to place emphasis on the code in determiningcases referred to it. But it is believed that its provisions will be taken intoaccount by tribunals in appropriate cases in considering whether an employerhas acted fairly. The Government’s plans are that the code will be fully evaluated by February2001, at which point the Government will be able to decide whether to implementlegislation outlawing age discrimination. Under the Treaty of Amsterdam, theGovernment may in any event be forced to take action. The treaty allows theEuropean Commission to put forward proposals to counter discrimination on awide range of grounds including age discrimination. If a new directive ispassed dealing with age discrimination, the Government will be obliged toimplement legislation. Rebecca Kettel Redundancy Q:  I understand thedefinition of redundancy has widened. What practical effect will this have in theworkplace? The case of Murray v Foyle Meats, 1999, IRLR 5628L, did away with thecontract test – looking at what work the employee was required to perform underhis contract – and the geographical test – looking at the place the employeeactually works – in considering whether an employee is redundant. The simplequestion to be asked is if the dismissal be attributable to a diminution in theemployer’s need for employees to do work of a particular kind, that is not thekind carried out by a particular employee. This is a much broader common sense approach and gives much more flexibilityto employers wishing to restructure their business. It allows employers to makeemployees redundant in one area while increasing staff in another, without therisk of a claim for unfair dismissal. It also endorses the concept of “bumped redundancies”, where anemployee may be redundant but because of, say, his long service, the employerwishes to retain his services and give him another employee’s job. The employeewhose job is given to the redundant employee may have to be dismissed to makeway. Previously, it would have been open for an employee to challenge theemployer in such circumstances as the bumped employee’s dismissal was notwholly attributable to the diminution in the requirement for an employee to dowork of a particular kind – there would be no diminution in the work carriedout by the bumped employee. Rebecca Kettell Human rights Q:  What effect will the HumanRights Act 1998 have on an employee’s right to privacy at work? The Human Rights Act 1998 will come into force on 2 October 2000. The Actconfers the right on everyone to “respect for his private and family life,his home and his correspondence”. Activities carried out at work comewithin the definition of “private life” (Niemetz v Germany, 1992). The protection afforded by the Act covers interception of telephone calls atwork (Halford v UK, 1997) and is likely also to cover monitoring of e-mails atwork. This does not place an absolute prohibition on an employer to monitore-mails or telephone calls but an employer should make clear to employees thathe may be monitoring e-mails and telephone calls. As a matter of good practice,where e-mail is in use, there should be a formal policy governing its use atwork. The rights granted under the Act give rise only to a right of privacyagainst a “public authority”. The right will not therefore bedirectly enforceable against a private employer. But courts and tribunals, aspublic authorities, must have regard to the Act in determining claims. Therefore,the provisions will be indirectly enforceable against private employers as thetribunals will be bound to find against employers if rights under the Act havenot been recognised. The Act provides a defence for public authorities where it is”necessary… for the protection of the rights and freedom of others”,which is open to wide interpretation. Kate Matthews Transfer of employeesQ: On a change of contractor providing services, will the liabilityfor an accident suffered by an employee at work transfer from the oldcontractor to the new one, and whose insurers should pick up the cost?Under the Tupe regulations, all the previous employer’s duties andliabilities under the employment contract are transferred to the new employer.In Bernadone v Pall Mall Services Group, 1999, B suffered an accident at workwhile employed at a hospital by Pall Mall. B claimed damages for personalinjuries. Before he issued proceedings, Pall Mall’s business was transferredunder Tupe to an NHS trust. B and the trust contended that if B’s claim was proved, Pall Mall and itsinsurers should pay the claim. The judge held that Pall Mall’s liability to B transferred to the trust andthat the right of Pall Mall to an indemnity from its insurers was alsotransferred to the trust under Tupe. While the first conclusion by the High Court must be right, the secondraises some interesting problems, as there is no contractual relationshipbetween the new employer and the old employer’s insurers. Further, in contracting-out situations, there is no contractual nexusbetween the old employer and the new, and it will not be possible for thesematters to be dealt with by the usual indemnities involved in Tupe sales ofbusinesses. There will clearly be further case law to come on this point.Helen J Boddy Related posts:No related photos.last_img

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