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By Michael Scutt, 06/01/2010 5:37 pm

Wot, no snowman?

I’m not referring to the five inches of snow outside as I write this, and the inevitable disruption caused to roads and railways for the next week,  but instead I am considering what the main statutory changes affecting employment law issues in 2010 will be.

January  

Not much will happen this month while everyone looks in astonishment at their credit card bills, but just a reminder that the Vento guidelines on awards to be made in cases of injury to feelings in discrimination cases look to have been increased late last year in the case of Da’Bell v NSPCC. The Court of Appeal case in Vento v Chief Constable of West Yorkshire Police in 2002 set three main bands for ETs to consider when making awards for injury to feelings; 

Lower – £500 – 5,000                       – for one-off or isolated incidents 

Mid     - £5,000 – 15,000 – for more serious incidents but not of the most serious nature 

Upper -£15,000 – 25,000               – for the worst examples of discriminatory behaviour, such as where there has been a campaign of bullying and harassment.  Only exceptionally should awards be made in excess of the upper figure. 

Since 2002 these bands have not changed.  It is now anticipated that the new bands will be 

Lower:  £? – 6,000 

Mid – £6,000 – 18,000 

Upper – £18,000 – 30,000 

For a fuller and very helpful discussion see Usefully Employed’s post on the subject.  

February 

This month will see something that hasn’t occurred before.  The maximum compensatory award that can be made by an Employment Tribunal for unfair dismissal will actually decrease. The Employment Rights (Revision of Limits) Order 2009 states that the maximum award will decrease from its current £66,200 to £65,300 for all claims where the event giving rise to the claim  occurred on or after 1^st February 2010.  This is because the maximum amount is linked to the Retail Prices Index (RPI) and that fell by 1.4% in the year from 1^st September 2008. 

The MINIMUM AWARD that can be made to an employee excluded/expelled from a Union and not re-admitted by the time the case reaches an ET falls from £7,300 to £7,200 

The maximum guarantee payment to an employee under s.31(1) ERA 1996 decreases to £21.20 per day. 

Each February also sees various other rates and limits amended – usually upward.  This time though the maximum weekly award, used for Statutory Redundancy Pay purposes and calculating the Basic Award in Unfair Dismissal cases will remain at £380, but only because it was increased to that figure last October.   

April – other notable increases, will be 

Statutory Adoption         } 

Paternity                            }                          all increase from £123.06 to £124.88 per week 

Maternity Pay                   } 

Maternity Allowance      } 

But, Statutory Sick Pay (SSP) will remain unchanged at £79.15 p.w 

This month will also see employees at employers with at least 250 employees acquire the right to request time off for studying or training relevant to the business.  The right is simply to request time off NOT for the employer to fund the training. 

Income Tax will rise to 50% for those earning more than £150,000 p.a 

October 

Legislative developments tend to occur in April and October now.  In October it is expected that the Equality Bill will come into force to hopefully bring some order to the convoluted and confusing plethora of anti-discrimination laws currently on the statute book. It won’t just tackle discrimination in the employment arena, but will be wider ranging. Contractual provisions that prevent employees discussing their pay with workers are expected to be made illegal and the government will acquire the power to force privatre companies to disclose gender-pay details.  More on all this in due course, assuming that it survives a change of government 

Throughout the year there will be new cases being decided that will make the headlines, or appeals considering cases that caused a stir in 2009.  I will cover these as they come up so please subscribe to the RSS feed or to the email updates for “breaking news”. 

If you need advice on any employment law issues please call me on 0207 464 8433 or email me at michaelscutt@dalelangley.co.uk.

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By Michael Scutt, 22/11/2009 9:27 pm

A couple of weeks ago I was “twitterviewed” * by Lance Godard of 22Twts fame. It covered both professional and personal stuff and,  if you haven’t got any paint drying and don’t feel the need for root canal surgery, why not read the interview by clicking here?

* A Twitterview is a live interview on Twitter in 22 questions.  It’s a great thing to do – thanks for inviting me Lance.

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By Michael Scutt, 05/11/2009 10:35 am

For those of you on Twitter I am being twitterviewed tonight by 22Twts. If you haven’t come across one yet, a Twitterview is a series of (22) questions posed by Lance Godard and my responses, in real time, on Twitter.  Lance asks some really interesting and high-profile people to do his Twitterviews so I’m delighted to be asked to take part and be in such august company.

It starts at 20.00 GMT and please take a look when I will be revealing my deepest darkest secrets, or something, as well as talking about Dale Langley & Co and employment law.  I don’t think Hello or Ok magazines will be terribly interested though.

 You can follow me  = @michaelscutt  and the  twitterview can be found at @22twts and #22twts 

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By Michael Scutt, 27/10/2009 2:01 pm

The “subscribe by email” feature hasn’t been working since the redesign, but it should now do so.  I do apologise if anyone has been trying to subscribe and getting very frustrated as a result.  Please try again!

One of the side-effects of blogging that isn’t often mentioned is the effect it has on one’s IT knowledge.  I think I’m beginning to understand what’s going on “under the bonnet”, as it were.

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By Michael Scutt, 02/10/2009 10:26 am

Because of the recent revamp of the blog and relocation to a new website, the old RSS feed has been broken.  Please re-subscribe using the button at the top right-hand corner of the page. 

Sorry about that!

Kind regards

Mike

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By Michael Scutt, 01/10/2009 3:56 pm

The excellent employment law website Emplaw informed me that the House of Lords was only around as the final court of appeal for a mere 610 years.  Labour’s Constitutional Reform Act 2005 did away with the House of Lords as a Court, with the intent of trying to ensure there was a proper separation of powers between legislature and judiciary.  Apparently the last Law Lord to meddle in politics was one William Le Scroope, who was beheaded for his trouble.  I don’t suppose there is any chance of a similar fate befalling those politicians who try and interfere in legal matters for a cheap headline: I’m particularly thinking of Harriet Harman who weighed into the dispute over Sir Fred Goodwin’s enormous pension by threatening to “take action”.  No such luck I suppose.

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By Michael Scutt, 26/09/2009 9:36 pm

Statutory redundancy pay (SRP) increases by the rate of inflation every February and this year’s increase saw it rise to £350 per year of service. However, unusually, in the last budget the Chancellor increased it again to £380 per week, although he did not specify a date for the implementation. He has now done so and, from 1st October next, the increase will take effect. The measure was introduced to provide greater support to those people made redundant;  whether it will do that seems unlikely in most cases, whilst increasing the burden on employers.

This  is also the figure that is used for the “Basic Award” in Employment Tribunal cases.  It will not increase again in February 2010.  

The government now tends to introduce a raft of new measures twice a year – in April and October.  I will post again shortly on some of the other measures being brought in.

In the meantime, if you have any queries on any aspect of employment law please contact me at michaelscutt@dalelangley.co.uk or on 0207 464 8433

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By Michael Scutt, 11/08/2009 8:32 pm

Welcome to WordPress. This is your first post. Edit or delete it, then start blogging!

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By michaelscutt, 29/04/2009 10:22 am

On 6th May my colleagues Jill Watson and Nicola Penny are running the 5k ”Race for Life” in Battersea Park.

 They are raising money for Cancer Research UK.  If you are able, please donate – Jill is an experienced runner but Nicola is braving blisters for her first ever run.   The link is below;   

http://www.raceforlifesponsorme.org/jillandnicola

In July to prove what a fit lot the firm is we will be sending out a team on the Chase Challenge here in the City.  More on that later on.

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By michaelscutt, 26/02/2009 5:51 pm

And whilst there may well be music and moonlight and love and romance somewhere,  HR bods and employment lawyers probably won’t  be looking forward to facing the music (or dancing for that matter) when it comes to dealing with the Employment Act 2008.  It comes into force (or should that be farce?) on the 6th April and repeals the hugely criticised Employment Act 2002.   In fact, there definitely will be trouble ahead.

Before I get into the nuts and bolts of the new legislation though, how did we get into this situation for those who haven’t been keeping up, or haven’t had the misfortune to get entangled in the current web of appeals, grievances, rights of appeal, extendable deadlines and percentage uplifts/reductions  for non-compliance?  Simply because the government became concerned in the closing years of the last century and the early ones of this that the number of cases being filed at Employment Tribunals (E.T) was increasing rapidly, threatening to swamp the system (see footnote below on this).   So they decided, not unreasonably, that it would be better if employers and employees could settle their differences without needing to bother the E.Ts.  Additionally, many smaller employers did not have grievance or disciplinary procedures in place, so the introduction of statutory disciplinary and grievance procedures helped to establish necessary internal procedures for dealing with disputes was a good plan. It was stipulated that in any disciplinary situation there would be a three stage process – a letter from the employer setting out the alleged disciplinary fault, a meeting to discuss and then a right of appeal.  A grievance by an employee would follow the same basic process but at the employee’s instigation.  So far so good.

Unfortunately, the system introduced with this laudable aim, by the Employment Act 2002, and the Employment (Dispute Resolution) Regulations 2004 made the whole situation much more complicated than it needed to be.  There have been two central difficulties.  Firstly, the rules allowed for an extension of time for issuing ET proceedings, in certain cases, up to six months from the usual three. This seemed simple until you were faced with a claimant with multiple claims.  Secondly, if an employer did not follow the disciplinary process religiously then they risked a finding of automatically unfair dismissal if the claim ever got to an ET which could result in the ET increasing the award it made to the employee by between 10 – 50%, depending on the heinousness of the procedural failure.  The end result of all this was that lawyers on both sides got involved much sooner, disputes became more entrenched and the number of cases filed at ETs kept on rising.

The government commissioned the Gibbons review, which led to the Employment Simplification Bill, which itself became simplified to the Employment Act 2008. It  relies heavily on a new ACAS Code of Practice, which will be legally binding, albeit it is still in draft form.  In turn the Code of Practice is supplemented by a Guide (called “Discipline and grievances at work: The ACAS Guide”) which is purely a guide and not law.  The main changes this structure brings about are as follows:  Firstly the extendable limitation periods for issuing claims will go.  From the 6th April 2009 in the vast majority of cases, there will only be three months from the dismissal or the event giving rise to the claim in which to issue proceedings at the ET. Extensions will only be possible if “just and equitable” (for discrimination claism) or “not reasonably practical” (for unfair dismissal claims), both of which are stiff tests.  Also, the automatic increase in ET awards for failure to follow the correct procedure will also be replaced by a discretionary system.  The ET will be able to award up to a 25% increase if it considers it just and equitable to do so if the Code of Practice applies and either the employer or employee has unreasonably failed to comply with the terms of the code. 

This will lead to confusion as ETs around the country decide on what act or omission was a failure to comply and, whether the offending party had a reasonable excuse.  This is further complicated by the ET being allowed to take into account the size of the employer when considering what it would be reasonable for them to do.  In other words a failure to comply with a provision of the Code  may be unreasonable for, say, a company with of the size and resources of BP, but not for a small firm of builders without any HR or legal resources.  On the face of it this is common sense, but it does mean that advising clients in the future will become harder and advice necessarily more uncertain.

My favourite amendment though concerns the new Grievance procedures. Under the rules currently in force, a grievance must be submitted in writing and failure to follow the grievance process can lead to increased/reduced awards as with the disciplinary process.  It is also necessary for 28 days to have passed between the grievance being lodged with the employer and filing proceedings at the ET (failing which the claimant cannot proceed).  The new Act sweeps all this away and doesn’t even provide that a grievance must now be in writing.   Madness! The new Code defines a grievance as any “concerns, problems, or complaints that employees raise with their employers”. The effect of this is that the system will be open to abuse from all sides: employees will be able to claim that the conversation with their line manager by the coffee machine at 4.55 one Friday afternoon x weeks ago was, in fact, a grievance.  Unscrupulous employees can then “reverse engineer” history to suit themselves.  Similarly employers will be able to claim never to have been made aware of the grievance.  In one sense this doesn’t have the impact that it would if the statutory uplift for non-compliance was still in force, but it will lead to a good deal of confusion and dispute and will do nothing to promote harmony in the workplace. 

There are many other aspects to the new rules which I shall write about in the forthcoming weeks as issues arise and get resolved, or as major confusion arises.  Watch this space. 

 Footnote

In 1999-2000 according to the ET’s own figures, 104,000 cases were filed.  There was a slight dip (bizzarely) in 2002/03 to 98,617 and then an increase to 115,039 in 2005/2006 after the new system was brought in.  In 2006/07, the last year for which figures are available there were 132,577.  Even the ETs own figures don’t show a relentless year on year rise – in 2004/05 the numbers declined to 86,181.