A few days ago I was telephoned by a prospective new client: she has been working for her employers for just over eleven months and was expecting her boss to terminate her employment at any moment. She told me she had worked well, been very flexible when required, worked unsociable hours and taken a cut in her hours when the business fell on hard times. In return her boss criticised her (unfairly I am told) for not having the right attitude and spending too much time on her social life. Leaving aside the issue of who was telling the truth, what is her legal position if her employment is terminated before she has gained 12 months continuous employment experience? What rights has she got?
Practice & Procedure
The government last week announced that it intends to shake up employment law practice and procedure with a consultation trying to rebalance the rights of employer and employee. It’s the latest episode in the long-running saga “does the law favour employees too much?”
I suspect that there is much political posturing in the consultation and I would be surprised if some aspects survive the consultation process. The headlines have been well trailed already: here is my take on the main points that caught my eye.
Issue Fees – how much is too much?
How much tax should employers deduct from termination payments? HMRC have announced a change to the way that lump sum termination payments have to be taxed by employers from this coming April.
As is well known, the first £30,000 of a compensation payment can be paid free of income tax and national insurance contributions, provided that it is paid as compensation for “loss of office” or employment. This commonly applies on redundancy, but can apply in other situations too.
First day back from the festive break and The Times, which must be short of contributors at the moment, rehashes the old argument about employees and their lawyers holding poor innocent small businesses to ransom.
Yesterday’s edition contained an opinion piece from Helen Giles, HR Director of a business called Broadway which apparently provides services to homeless people. Her theme? “Stop legal parasites feeding on small business”(*) This morning the story made it onto the Today programme on Radio 4 and a much more useful discussion, chaired by Evan Davis.
If you’re snowed in and can’t get to work, does your employer have to pay you?
Almost certainly not. I did an interview for parentdish.co.uk on this very subject (click here). Unless the employer is contractually obliged to pay (which would be unusual) if you can’t make it in to work because of the weather conditions, your employer doesn’t have to pay you. The Lawyer today reported on one law firm taking a hard line on the issue. As ever, much will depend on what the contract of employment says, but in my experience it is very unusual for contracts to say anything at all about this situation.
Are you a recruiter worried about what to write in a job advert? Or concerned about inadvertently discriminating against applicants on the grounds of age?
It’s a difficult area and care needs to be taken. However, some comfort can be taken from a recent case in the Employment Appeal Tribunal (“EAT”), which held that serial litigants may have to pay costs if they try to exploit the Age Discrimination Regulations for financial gain.
So, the Employment Tribunal (ET) agreed you had been unfairly dismissed. They award compensation for unfair dismissal in your favour. Then your former employer doesn’t pay up. In a recent post I wrote about how the ET won’t consider whether the employer can pay the award. So what happens if the employer can’t or won’t pay? What can you do? How do you get your money?
For an employee who has decided to move on to pastures new and has handed in his/her notice, or has been told they are to be made redundant, there are certain pitfalls to be avoided. They may seem obvious (like serving notice), but people still fall foul of them. Walking out there and then is a big step for an employee – we’re in constructive dismissal territory here and legal advice should be taken before you do it. In other cases some employees only have regard to the restrictive covenants in their contracts of employment (which are the clauses that say the departing employee won’t try to solicit work or custom from the clients he’s been dealing with, or prevent him from joining a competing business once he’s left). Whether those restrictions are always legally enforceable is another matter and constitute another material for another blog post or three, but in this post I want to highlight for employees that trying to get ahead by taking confidential information, or by acting inappropriately whilst stil an employee (even if on garden leave) could end in tears.
There’s no need to resort to garlic, holy water, crucifixes, or rosary beads to keep them away (we’re not quite in Bram Stoker territory yet) but there’s no doubt that serial litigants are a blot on the ET landscape.
Following on from my previous posts on the subject, there was some good news a few weeks back in the EAT on the issue of what a claimant has to prove to succeed with a claim for age discrimination. The case of Keane v Investigo & others UKEAT/0389/09/SM, commented upon by Gordon Turner and Damian McCarthy in ELA Briefing last month, held that a claimant has to prove a genuine interest in performing the job advertised. There can be no detriment to an unsuccessful applicant if they had no interest in doing the job in the first place.
If you have ever had to sue someone else and gone through the courts or Employment Tribunal, or if you have been asked to sign a compromise agreement upon the termination of your employment, it’s pretty likely that at some point the words “without prejudice” will have cropped up, followed (perhaps) by “subject to contract”. They can be baffling and many clients ask me what “without prejudice” means when I’m taking them through a compromise agreement. One client once asked me to write a letter to the other side “with prejudice”. Many people, lawyers and non-lawyers alike, write the words “without prejudice” on all their correspondence in the hope (presumably) that they will act as some kind of Harry Potteresque invisibility cloak to stop their words being thrown back at them in court. It doesn’t always work.