Morton Fraser Employment Bulletin February 2010

Morton Fraser’s Employment Team will be running the latest in its series of popular update seminars in March. The Employment Team will consider the legal and practical implications of dealing with employees who are on long term sick leave as well as the consequences for employers of the new “fit notes” which are due to replace sick notes in April. We will also be joined by a GP who will comment on the anticipated use of fit notes and the way that these are likely to be approached by GPs.

In addition, we will be joined by Donna McVey of Your Personal Best, who is a leading personal trainer and sports therapist. Donna will provide insights from a health and wellbeing perspective.

The seminar will take place in our Glasgow office at 8.30am on 16 March and in Edinburgh at 5.15pm on 17 March and will last for approximately 1 hour.

Our Glasgow office is also hosting a seminar on 2 March at 8.30am to 10.00am on the risks involved in relation to employment expenses. This is a joint seminar between Morton Fraser and Grant Thornton which will consider the expenses that an employer is required to include in the P11D in light of HMRC’s increasing focus in this area. In addition, changes to the Whistleblowing Regulations from April 2010 mean that HMRC are much more likely to find out about suspected transgressions.

If you would like a place on any of these free seminars please book here.

The Morton Fraser Employment Law Fact Card for 2010 has just been issued. This reflects the changes to the level of awards that Employment Tribunals can make with effect from 1 February 2010. The Fact Card also provides employment related information of use to employers including:-

• Disciplinary Meeting Checklist
• Redundancy Checklist
• Statutory Retirement Procedure Information
• Statutory Redundancy Payment Calculator
• Statutory Notice Calculator
• National Minimum Wage Details
• Family Friendly Leave Details
• Useful Websites

If you would like to receive a free copy of the factcard please email employment@morton-fraser.com with your postal address.

New limits for Tribunal compensation awards came into force on 1 February 2010. For the first time ever, the Employment Rights (Revision of Limits) Order 2009 brought in a reduced maximum award for unfair dismissal of £65,300. This is a drop from £66,200 for the previous year and is linked to a fall in the inflation rate. The Statutory Maternity, Paternity, Adoption and Sick Pay rates that will come into force on 1 April 2010 have also been announced. Maternity Pay, Paternity Pay and Adoption Pay will increase from £123.06 to £124.88 per week but there will be no change to Statutory Sick Pay which will stay at £79.15 per week.

In Danise v Metropolitan Police the EAT was asked to consider the requirement that a male trainee police officer cut his shoulder length hair. The EAT confirmed that this was not sex discrimination because, although a female officer would not have been required to do so, “a difference in treatment between the sexes on one particular aspect of the Dress Code is not necessarily more favourable treatment of a member of one sex compared with a member of the other sex”. Therefore in order to determine whether there was sex discrimination it was necessary to look at the dress code as a whole and determine whether the application of a test of “conventional standard of appearance” treated both sexes equally overall.

Heard the one about the fireman and the dentist? These were the professions under consideration by the ECJ in 2 German cases relating to the setting of age limits for workers. In the first case, Wolf v Stadt Franfurt am Main, the ECJ decided that it was lawful to have a maximum age limit for recruits wanting to join the service. In the circumstances of the case, it was held that an age limit of 30 was not unlawful age discrimination because it could be justified.

The second case is that of Petresen v Berufungsasschuss fur Zahnarzte fur den Berirk Westfalen-Lippe where the ECJ considered whether it was age discrimination for the German Government to require dentists in the German National Health Service to retire at 68. It concluded that setting an age cap limit of 68 for National Health Service dentists was possible to justify where the local labour market required it. Therefore, where there were not enough opportunities for younger workers because the job market was saturated, an upper age limit of 68 could be justified in the interests of allowing entry to the market for younger workers.

The eagerly awaited decision in G v X School has been published. The Court of Appeal held that a professional person, in this case a teacher, should be allowed to have legal representation at any disciplinary or appeal hearing when the outcome of the hearing could effectively end their career in that profession. This decision was based on the employee’s right to a fair trial under Article 6 of the European Convention on Human Rights.

If a claim to the Employment Tribunal involves an accusation of whistle blowing then, from 6 April 2010, Claimants will be asked to tick a box in the ET1 which will allow whistle blowing accusations to be passed on to the relevant authorities by the Employment Tribunal. If the Claimant ticks the box then the information will be passed on to one or more authorities on a prescribed list. The Tribunal Rules will be revised to take account of the release of such protected information. Both sides in the Tribunal proceedings will be asked to verify that the relevant authorities have been given a copy of the ET1 or the pertinent parts of it.

Concerns were raised during the consultation process that this would lead to Claimants having the upper hand in negotiations and could elicit greater financial settlements from employers who might not be keen for these allegations to be publicised. This could have the knock on effect of such accusations being suppressed from the relevant authorities.

The latest Health & Safety Bulletin from Morton Fraser has a comprehensive guide to recent changes in legislation that impact on both employers and employees who use vehicles in the course of their work.

The disability lobby claim that a substantial number of disabled people are victimised when applying for jobs and that pre-employment questionnaires are off putting for disabled job seekers. A clause in the Equality Bill was intended to address this issue. However, some disability organisations have indicated that it does not go far enough and an amendment has therefore been tabled which would prevent, in certain situations, questions surrounding disabilities being asked altogether.

Don’t forget, you can keep up to date with changes in employment law in between bulletins on our employment blog. Recent topics have included:

• Just A Slice Of Cheese
• The Silver Revolution
• Discrimination Against The Unreliable?!
• Risk Assessments For Pregnant Employees
• Legal Representation At Disciplinary Hearings

Click here to view: Employment Blog

After an 8 week deliberation the Government has now released 6 sets of draft regulations relating to additional paternity leave and pay. These measures will apply to parents of children due on or after 3 April 2011. They also apply to those parents who adopt if they have been told they have been matched with a child on or after that date. The measures will come into force on 6 April 2010.

The Agency Workers Regulations 2010, intended to implement the Temporary Agency Workers Directive, have now been published. They were laid before Parliament on 21 January 2010 and come into force on 1 October 2011. The Regulations, which were first published in October 2009, include a recasting of the definition of pay and the development of anti-avoidance measures.

Employment contracts often use the statutory definition of a "subsidiary" contained in the Companies Acts to identify the wider group of companies to whom the employee owes his duties. For example, confidentiality obligations and restrictive covenants will often be drafted so as to refer to both the company for whom the employee is working as well as its holding or subsidiary companies. Employee Share Schemes and Employee Benefit Trusts also frequently use the definition of subsidiary in order to set their eligibility criteria so as to cover the entire group's workforce.

The Court of Appeal has recently held that the granting by a holding company of a pledge (security) over the shares in its subsidiary and the registration of the bank as the holder of those shares caused the subsidiary to cease to be a subsidiary of its holding company.

While the facts of this case were somewhat unusual and would not apply in the majority of situations, the consequences of the decision are potentially very significant for those companies to which it applies. In most cases it will be straightforward to establish whether or not a company that has, or plans to, pledge a subsidiary's shares is likely to be affected by this decision. If you would like advice on this issue, please contact Sam Price from our Corporate team on 0131 247 1139.

We have launched an Employment Protection Package for employers to provide a comprehensive solution to employment law issues.

The Employment Protection Package includes:

• Annual employment documentation health check
• 24 hour access to employment law advice
• Tribunal awards insurance cover of up to £250,000 including legal costs
• Affordable monthly fixed fee payments

Click here for further details or for a free quote: Employment Protection Package