REDUNDANCY PAY
Weekly limit to rise on 1 October 2009
The Government has confirmed that the upper limit for a week’s pay which is used to calculate statutory redundancy pay will increase from £350 to £380 with effect from 1 October 2009. However, the limit will not rise as normal in February 2010, but will remain at £380 until February 2011. The weekly limit also applies when calculating certain other types of payment, such as the basic award for unfair dismissal.
CONTESTANT OR EMPLOYEE?
“You have been evicted … but you have a right of appeal”
La Cour de Cassation, the highest court in France, recently held that contestants on the French version of the reality TV show “Temptation Island” were protected by French employment law. The production company responsible for the programme was ordered to pay compensation to three contestants who successfully claimed compensation for overtime, holiday pay, unfair dismissal and wrongful dismissal, opening the floodgates for reality TV contestants in France to apply to the court for compensation.
It may only be a matter of time before contestants from British reality TV begin to raise claims. If contestants are protected by UK employment law, Friday night Big Brother evictions could become a thing of the past. Davina McCall would instead broadcast live to the house to give housemates their statutory minimum notice. Big Brother housemates would be entitled to claim accrued annual leave and, in the Apprentice, Sir Alan Sugar would be forced to bring his disciplinary and dismissal procedures into line with the ACAS Code!
If contestants on reality TV shows are protected by UK employment law, it could change the face of reality TV as we know it. However, it is more likely that production companies will put their hands in their pockets to try to ensure current shows retain their respective formats. In any event, whether contestants are “employees” or not – the case serves as a reminder that the legal definition of “employee” and therefore the scope of employment law can be far reaching. If in doubt, take advice … and do not dismiss in an “Apprentice” style heat of the moment!
STATUTORY HOLIDAY PAY
Failure to pay statutory holiday pay is deduction from wages
In HM Revenue & Customs v Stringer, the House of Lords held that workers can bring claims for statutory holiday pay under the deduction from wages provisions of the Employment Rights Act 1996. As such, workers may now be able to recover holiday pay going back several years, which was not possible under regulation 30 of the Working Time Regulations 1998 because of its stringent time limit rules.
The Stringer litigation also concerned the relationship between statutory annual leave and long-term sick leave. Significantly, it has been decided that workers are entitled to take and continue to accrue statutory annual leave while off sick. This means that they are entitled to be paid annual leave even where they have exhausted their statutory and contractual sick pay entitlements.
AGE DISCRIMINATION
Age discrimination and selection for redundancy
The Employment Equality (Age) Regulations 2006 protect employees from unlawful discrimination on grounds of age. Significantly, discrimination includes indirect discrimination where an employer follows a provision, criteria or practice (PCP) which, although applied equally to all employees, nonetheless has the effect of disadvantaging employees of a particular age when compared with other employees.
It is possible to justify age discrimination in certain circumstances. For example, it may be lawful where an employer can show that the age discrimination is a proportionate means of achieving a legitimate aim. The legislation also contains various exceptions such as treating employees with more than five years of service differently when providing award or benefits provided it reasonably appears to the employer to fulfil a business need. The length of service criterion can be said to fulfil a business need because it encourages loyalty or motivation.
The recent case of Rolls Royce v Unite dealt with a redundancy selection procedure which included five selection criteria. Rolls Royce employees were awarded points for each criterion and those with the least aggregate points were selected for redundancy. Employees were given one point for each year of service and length of service was the deciding factor in circumstances where two employees had the same number of points.
Although the selection procedure had previously been agreed collectively with Unite and applied to all employees, it was Rolls Royce that sought to have the length of service criteria declared unlawful on the grounds that younger employees were placed at a disadvantage. In other words, younger employees were the subject of indirect discrimination as it was less likely they would have attained length of service when compared with older employees and, as such, may be selected for redundancy.
The Court of Appeal held that the Rolls Royce redundancy procedure was not discriminatory as it was a PCP with the legitimate aim of advancing an employment policy that achieves a peaceable process of redundancy selection agreed with Unite. The length of service criterion was seen as respecting the loyalty and experience of the older workforce and proportionality was demonstrated as the length of service criterion was only one of a substantial number of criteria for measuring employee suitability for redundancy.
The decision of the Court of Appeal may have implications for organisations which had previously dropped length of service as a redundancy selection criterion. Significantly, it was Rolls Royce that sought to have the length of service criterion declared unlawful, as it was the Unite position that the collective agreement procedure should continue to take account of length of service in determining which employees should be selected for redundancy.
SEMINAR AND TRAINING PROGRAMME 2009
BREAKFAST SEMINARS
These free 60-minute events start with registration and breakfast at 8.30am. Presentations begin at 9.00am finishing at 10.00am. All events are held at our Frederick Street offices. To book a place on any of these events please contact Luisa Deas, luisa.deas@balfour-manson.co.uk, Tel: 0131 200 1402.
Autumn Series
Tuesday 13 October:
Bullying and harassment in the workplace
This 60-minute seminar will examine the effects of bullying and harassment at work. We will outline how these behaviours affect people and organisations and examine the legal implications if employers allow such behaviour to go unchallenged. We will also provide guidance on the development of appropriate policies and procedures.
Thursday 26 November:
Hiring, firing and retaining key employees
During this 60-minute seminar we will examine the recruitment process, from advertising the position to drafting the employment contract. We will also look at how to resolve matters if an employee’s performance is below expectation and will discuss compromise agreements and dismissing staff. We will examine methods of retaining key staff in business units where commercially sensitive work is conducted by employees with a high market value and we will look at the risks of losing key people in key posts and retention strategies.
HALF-DAY SEMINARS
These free half-day seminars provide practical guidance on the most significant employment law developments during the year. The events start with a 9.30am registration, 10.00am presentation and finish at 1.00pm when a buffet lunch will be served.
Tuesday 8 December:
Round-up of employment law for 2009 and looking forward to potential developments in the year ahead.
To book a place on any of these events please contact Luisa Deas, luisa.deas@balfour-manson.co.uk, Tel: 0131 200 1402.
TRAINING COURSES
We offer training on topics we have identified as key areas for HR professionals. These training sessions can be held either at our offices, or, we can come to you.
The topic titles can be used as a template for a more bespoke in-house course for all levels of management including supervisors, directors or other senior officers within an organisation.
• Equality and diversity
• Disciplinary and grievance procedures
• Becoming a family friendly employer
• Recruitment
• Mock employment tribunal
• Work performance and appraisals
To discuss your training needs please do not hesitate to contact a member of the Team.
