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Author Archives: Laura Campbell

‘Small Claims’ Limit Increase

Have you suffered a minor injury in a Road Traffic Accident?  Well, from April 2020 you will probably have to represent yourself!!

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At present money or property claims worth under £10,000 and personal injury claims worth less than £1,000 are dealt with in the Small Claims Court.  You may have heard of the Small Claims Court as people tend to represent themselves rather than instructing legal representation – it’s thought that legal representation shouldn’t be required for such low value, non-complex claims and so, legal costs cannot be recovered from the other side even if you win your claim.

For personal injury claims worth over £1,000 (which are all but the most minor injuries), claims  are pursued in the Online Government Portal and successful Claimants can recover a portion of their legal costs from the other party to the claim.  This allows Solicitors to offer Claimant’s a ‘No Win No Fee’ arrangement; meaning they will bring your personal injury claim for you without you having to pay anything up front because they will be able to recover their fee from the other side at the end of the case.

However, in a bid to curb the ‘compensation culture’ and reduce insurance premiums, the Government plan to increase the Small Claims limit from April 2020.  This means that any personal injury claims arising out of road traffic accidents (RTAs) that are worth under £5,000 will be allocated to the Small Claims Court and so, it follows the legal costs will no longer be recoverable from the Defendant for these claims.  For all other personal injury claims, the limit will be increased to £2,000.

The result is that many people, particularly those suffering whiplash type injuries, will be forced to ‘bring’ their own personal injury claims and represent themselves at Court unless they want to pay for legal advice out of their own pocket.  The Motor Insurers Bureau are currently testing a new online system which they have designed for unrepresented Claimants (Litigants-in-person) to pursue RTA claims; the system is expected to ‘go live’ in April 2020.

For advice on making a personal injury or clinical negligence claim, contact us on 0161 624 5614 to arrange a free, no obligation consultation.

Posted in Litigation Disputes | Comments closed

New Employment Laws – Are You Ready?

employment2020 brings with it 5 key changes to employment law that will impact both employers and employees – make sure you are ready for when many of the changes come in force on 6 April 2020 by taking advice now.

1. New right to a written statement of terms

Current law

Employees who’ve been employed more than one month must be given a written statement of the terms upon which they are employed within 2 months of starting work.

New law     

All employees AND workers will have a right to a statement of written particulars of employment on the very first day of work.

Action  

Employers need to consider whether they want to recruit workers or employees and should prepare the statement of particulars of employment during the recruitment stage to be able to supply this on day one.  They should review current contracts and recruitment policy to ensure everything is in place for new starters and be prepared for when existing staff request a statement.

2. Changes to Holiday pay calculations

Current law

Complicated calculations for those working variable hours or earning a variable wage,  using the previous 12 weeks as a reference period to work out a ‘week’s pay’.

New Law

To even out variations the new reference period will increase to the previous 52 weeks (or number of complete weeks worked if less than a 52) discarding any weeks not worked or where no pay was received.

Action

Employers need to consider who this new reference period will be relevant to and have systems in place ready to implement the new rules, particularly as the change falls at just before the Easter holidays when many will want to take leave.  The rules come in force from April 2020 but employers will need to ensure records from the previous year are up to date and ensure data is accurately recorded going forward.

3. Parental bereavement leave

Current law

There is currently no law giving parents the right to time off in such circumstances.

New law

The Parental Bereavement Leave and Pay Act 2018 is expected to come into force in April to give employed parents the right to 2 weeks leave if they lose a child under the age of 18 or suffer a stillbirth from 24 weeks of pregnancy and to claim pay for this period (subject to eligibility criteria).

Action

Employers should communicate the change to staff ideally by way of written policy but should be alert to potential race or religious discrimination and avoid applying a blanket policy given different religious and cultural approaches to bereavement.

Employers should be aware of bereaved mother’s existing rights to maternity leave, which is not lost if a child it lost after 24 weeks of pregnancy.

Finally, employers need to be mindful of the long term affect such a loss can have and deal with performance issues and absence requests carefully.

4. Changes to Agency Workers Rules

Current law

Agency workers are already entitled to the same pay & basic working conditions as direct recruits once they’ve completed 12 weeks’ continuous service in the same role BUT the ‘Swedish Derogation’ provides an exemption to this right if the worker is employed directly by the agency under a permanent contract rather than the agency acting as a middle man.

New law

The Swedish Derogation employment model is being abolished.  Agency workers will not be able to enter contracts with Agencies that remove their rights and will be entitled to the same pay as those on permanent contract directly with the employer after 12 weeks of service.  Further, agencies will have to provide agency workers with a ‘Key Information Document’ detailing the type of contract, the minimum expected pay, how they will be paid and by whom.

Action

Employers should consider the additional costs to business arising out of the enhanced rights and before 30 April 2020 agencies will have to inform any workers whose existing contracts contain a Swedish Derogation provision that it will no longer have effect.

5. Changes to IR35 (tax evasion) rules for the private sector

IR35 is a law that allows HMRC to collect an additional payment where a contractor is an employee in all but name (i.e. a contractor may technically be performing work for an end client via an intermediary like a limited company but if it were not for that intermediary they would be an employee of the end client and should be treated as such for tax purposes).

Current law

It is the intermediary’s/middle man’s responsibility to determine whether IR35 applies.

New law

The new off-payroll rules will require medium and large businesses who engage contractors to assess the employment status of those workers i.e. shifting the onus onto the end client rather than the middle man.

Action

Medium and large sized businesses should review their current workforce and consider who the new rules may apply to, speak to their contractors and put new systems in place to determine if the rules will apply to future relationships.  The Government ‘Check Employment Status for Tax’ service is available online.

How can we help?

The main thing you can do to prepare and comply is to review and keep reviewing, your workforce, working practices and contracts.

If you would like advice or assistance on compliance with employment law, please get in touch to discuss how we can help you.

Posted in Employment, Legal Briefs | Comments closed

Business Breakfast – Mahdlo Oldham

Ian HInformative and enlightening final business breakfast of the year at Mahdlo – Oldham this morning with members of the team hearing Greater Manchester Police (GMP) Chief Constable Ian Hopkins talk honestly about his role, the challenges facing policing today and specifically, Greater Manchester Police.

Ian joined GMP in April 2008 on promotion to Assistant Chief Constable.  He started his career in Staffordshire Police and has served in Northamptonshire and Cheshire Police.  In 2011 he undertook a three-month secondment as syndicate director for the Strategic Command Course.   He was appointed Deputy Chief Constable of GMP in December 2011 with responsibility for Force performance, the Force Change Programme and Corporate Communications.  He was appointed as Chief Constable of GMP in October 2015.

Ian has experience of leading major change in a large complex organisation, managing large scale events, including the largest terror attack seen in the UK since the 2005 London bombings.

Ian has an MBA (distinction), Postgraduate Diploma in Operations Management and is a Fellow of the Chartered Management Institute.  Ian was awarded the Queen’s Police Medal in the Birthday Honours 2016.

Another inspiring talk for the staff at North Ainley Solicitors.

Posted in North Ainley News | Comments closed

Settlement Agreements

settlement-agreementSettlement Agreements are legally binding agreements where an Employer provides a severance payment in return for an Employee agreeing not to pursue a claim in the Tribunal or Courts.

Importantly, the employee must have received advice on the terms and effect of the agreement from an independent solicitor (or another adviser specified in the Employment Rights Act 1996, such as a properly certified trade union official). That adviser must be clearly identified in the written agreement and their advice must be covered by insurance.

A settlement agreement is usually used in connection with ending the employment, but it doesn’t have to be.  A settlement agreement could also be used where the employment is ongoing, but both parties want to settle a dispute that has arisen between them.

Whether you want to explore settlement with an Employee or have received an agreement from your Employer, we can help!

Posted in Business Employment, Employment | Comments closed

Absent without leave

employmentThere are lots of genuine reasons why an employee might not turn up for work without permission but it’s easy to assume the worst & make a rash decision to dismiss.

Being AWOL can be a fair ground for dismissal but there is a lot to consider before doing so if you want to avoid a Tribunal claim.  It is important to take legal advice on the rights and responsibilities before taking action.  North Ainley Solicitors provide this advice to both you and your business.

For more information contact Laura Campbell in our Dispute Resolution Team.

Posted in Business Employment, Employment | Comments closed

Bullying at work

bullyingIt can happen to anyone and whilst it isn’t against the law, it’s obviously never a good thing for someone to feel intimidated, degraded, humiliated or offended.  Everyone deserves to be treated with respect and so it’s important for employers to take such matters seriously.

We advise both businesses and individuals on bullying and harassment issues so please do not hesitate to contact us for more information and advice.

Posted in Business Employment, Employment | Comments closed

Business Breakfast – Mahdlo Oldham

BB ImageA thought provoking start to the day for members of the team who attended the business breakfast at Mahdlo Oldham hearing from Dr Carolyn Wilkins OBE, Chief Executive of Oldham Council and the Accountable Officer for NHS Oldham CCG talk about health and social care integration in Oldham.

Carolyn undertakes the lead chief executive role for Greater Manchester on a range of issues including being the architect for Greater Manchester Leadership and Workforce Development Framework as well as being the lead chief executive for Safer and Stronger Communities and Population Health.  In addition, she is the Chair of the Oldham Maggie’s Fundraising Board and is currently a panel member on an independent inquiry into Civil Society.

She has significant public sector experience including time as a Chief Executive at Rossendale Borough Council where she led an improvement programme which saw the authority re-categorised from ‘poor’ to ‘good’, and rated in the top three councils to work for in Times Best Companies.

Carolyn was awarded an OBE in June 2016 for her services to local government.  In March 2017 she was selected for inclusion on the 2017 Northern Power Women Power List.

She commented, “Some great work being done but it’s everyone’s job to make our Borough a better place to be”.

A great inspirational talk to start the day!

Posted in North Ainley News | Comments closed

Employment rights

New research suggests that at least a million people across the UK are being denied their rights – with employers most likely to breach their obligations in respect of minimum wage, providing payslips and holiday entitlement.

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By law, all workers have a number of rights that have been carefully laid down to ensure that all individuals are treated fairly by their employers.  These rights, which have been given under statute are called statutory rights.

While statutory rights form the basis for fair treatment in the workplace, your specific employee rights may vary slightly depending on the type of job you are hired to do and the arrangement you have with your employer along with a few other variables.  Your exact rights at work will ultimately be derived from a combination of your statutory rights and your employment contract.

As a worker, you may have some rights that are set out in the terms and conditions of your employment or your contract, other than those required by law.  These are known as contractual rights.

The terms of the contract may vary the terms of your employment and may award you additional rights beyond the statutory minimums.  For example, an employer may offer maternity and paternity leave at full pay.  However, this is not obligatory by law and is at the discretion of the employer.

An important point to note regarding contractual rights is that an employment contract can offer you additional rights but they cannot offer you fewer rights than those offered by law.  In other words, contracts of employment cannot forcefully restrict your statutory rights.  They can only limit your rights with your consent.  For example, if you agree, of your own will, to opt-out of the maximum 48-hour working week or you agree to work on Sundays, it overrides your statutory rights regarding these terms.

Once the terms of the employment contract have been agreed upon, your employer must abide by them.  If they do not, they could be held liable for breach of contract.

If you’re concerned, call our Employment tean for specialist employment advice.

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When it is too hot to work?

We don’t want to jinx it but, if we really are in store for a heat wave, many of you might be wondering how hot it has to get before you can leave work and head for your back garden/nearest beer garden…

The law

It’s not good news – whilst the law sets a minimum working temperature of 16°C, remarkably there is no upper temperature limit.  Perhaps it’s because we don’t have this problem too much in England!

Employers still have to comply with Health & Safety at work legislation which requires them to provide clean and fresh air and to keep a ‘reasonable’ temperature.  ‘Reasonable’ is of course open to interpretation but the Health & Safety Executive suggests that an acceptable ‘thermal comfort’ zone is between 13°C (56°F) and 30°C (86°F) for ‘work rooms’.

Further, employers should not only monitor air temperature but radiant air temperature, air velocity, humidity, clothing insulation and metabolic heat when considering thermal comfort or thermal stress i.e. environmental and personal factors.

But what if you’re melting?

Tell your employer you are uncomfortable.  Employers should respond to such complaints pro-actively and should consider carrying out a ‘thermal comfort risk assessment’ if a significant number of people complain of being too hot.  When the mercury is really rising The Trades Union Congress (TUC) has suggested employers should temporarily relax their dress codes, provide fans and even cold drinks to keep employees comfortable.

Working outdoors? 

The TUC also recommends that employers of outdoor workers consider accommodating extremely hot weather by re-arranging working hours so that the midday heat can be avoided where possible.

For further advice on Employment law matters, contact Laura Campbell at our office.

Posted in Business Employment, Employment, Legal Briefs | Comments closed

When can you suspend employees?

In any contract of employment, there is an ‘implied term of trust and confidence’ between employer and employee.  But does this mean that an employer can’t suspend someone pending investigation in case they breach that term?

Judgement

The tribunals say not.  In the recent case of London Borough of Lambeth v Agorevo, a primary school teacher was suspended after being accused of using excessive force against a child with special education needs.  Her claim failed as the question was not whether it was ‘necessary’ to suspend her but whether there was ‘reasonable and proper cause’ to suspend.

For employment information and advice contact our Employment law team.

Posted in Employment, Legal Briefs | Comments closed

New payslip rights

Big changes to the Employment Rights Act 1996 in force from next Monday 6 April 2019, mean that ALL employees and workers (starting jobs after this date) will have a statutory right to a detailed written, printed or electronic wage slip including a breakdown of hours worked where pay varies by the time worked.56606352_2256108941328223_1516984931438297088_n

Employers currently only have to provide wage slips to employees and remarkably, don’t have to tell workers what they have deducted for tax, NI and pensions!

For employment information and advice contact our Employment law solicitors.

Posted in Employment, Legal Briefs | Comments closed

Employers take note: Personal Injury compensation paid in Employment claim

Hailing a new approach, the Employment Appeal Tribunal (EAT) recently awarded personal injury compensation for failure to provide rest breaks under the Working Time Regulations 1998 (WTR).Judgement

Rights: Under the WTR 1998 all workers are entitled to an unpaid rest break of 20 minutes when working for more than six hours per day (Reg 12).  For workers carrying out monotonous work (i.e. a production line) further ‘adequate’ rest breaks must be provided to avoid a health and safety risk.  These rights are enforceable by bringing an employment Tribunal claim.

If an Employment Tribunal finds that the WTR have been breached, Reg 30 provides that it may award such compensation ‘as is just and equitable in all the circumstances.  However, in a previous case (Gomes v Higher Level Care) the EAT had confirmed that this would not include compensation for pure injury to feelings; which was only available in discrimination cases.

The facts:  In Grange v Abellio, the Claimant was employed as a ‘Relief Roadside Controller’ regulating and monitoring bus services.  He brought a claim alleging that his employer had refused him rest breaks but the first Tribunal dismissed his claim as there was no evidence of a deliberate refusal by Abellio.  Mr Grange appealed and the EAT held that the refusal did not have to be an active response to a positive request; here it was the arrangement of Mr Grange’s working day that had prevented him from taking his rest breaks. His claim succeeded.

Personal Injury: Mr Grange gave evidence that due to a bowel condition, the lack of rest breaks had caused him discomfort that was ‘more than a minor inconvenience’ and so, the Tribunal awarded compensation for personal injury.  His employer appealed, relying on Gomes.

The decision: The EAT rejected the appeal and confirmed that Tribunals are permitted to award damages for personal injury under Reg 30 of the WTR.  Further, that medical evidence and reference to injury guidelines was not necessary as the Tribunals should be able to deal with cases on a common-sense basis.

What next?: This case suggests that now, Claimants who can prove they suffered ‘more than a minor inconvenience as a result’ of a breach of WTR can be awarded personal injury  compensation.  This makes sense given that the objective of the EU Working Time Directive (as implemented by the WTR) was to protect the health and safety of workers. It could also mean that where a breach of the WTR is alleged, it could be easier to bring a low value personal injury claim in the Employment Tribunal than in the Civil Courts.

For more information and advice contact our employment law solicitors.

Posted in Employment, Legal Briefs | Comments closed

Choosing the right lawyer

It can be a big decision to instruct a solicitor and it could end up costing you a lot of money, so you need to get it right!

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Certainly, it can be tempting to go to the first firm you think of, drive past on the way to work or that has the fanciest offices but there are some things you should consider before parting with your hard earned cash:

Specialism – Often, high street practices try to be a jack of all trades, with the same Solicitor offering advice on all manner of problems. But, if you have an employment law issue why would you want advice from a Solicitor with a background in property law? Do your research and make sure the Solicitor you will see is a specialist in and has good experience in the area you need advice on.

Recommendations – from people you know and trust are always useful but if your friend recommends a firm because they did a good job of selling their business, it does not make them best placed to help you make a personal injury claim.

Attitude – Make sure you are on the same page. If you want to resolve your issue amicably, you do not want an aggressive lawyer who will rack up costs arguing over nothing. Likewise, if you want a robust approach, don’t instruct a wallflower. A good lawyer will explain the options and alter their approach based on your instructions and will be mindful of how their approach will affect your costs; even if that means telling you what you don’t want to hear.

Alternatives – Does the firm promote and actively engage in other ways of resolving legal problems; such as ACAS Conciliation for employment problems or Mediation or Collaborative Law for family matters? Again, a good lawyer who isn’t just interested in taking your money will encourage these approaches where appropriate.

Likeability – Believe it or not, not all solicitors are cut throat so it’s important that you feel comfortable speaking with your legal adviser and that you feel able to build a relationship of trust and confidence. That said, just because you might want to go for a pint with them does not mean they will give you quality legal advice.

Fees – Make sure you have a very good estimate of what it’s likely to cost and when you will be billed. From 6 December 2018, all Solicitors websites must display prices and service information for residential conveyancing, probate, unfair & wrongful dismissals, debt recovery and licensing applications.

Choice – Remember you don’t have to use any firm which may already have been ‘assigned’ to you – perhaps by your employer when handling a settlement agreement or your car hire company when dealing with an Road Traffic Accident.

At North Ainley, we have been advising the people of Oldham since 1901 but that doesn’t mean you will get out of date advice, just lots of experience! Our size allows us to combine a friendly, personal service with city professionalism from a team of specialist Solicitors and legal advisers.

For more information, please call Laura Campbell, a Solicitor in our Dispute Resolution team on 0161 624 5614.

Posted in Commercial & Corporate, Commercial Litigation, Employment, Family, Litigation Disputes, Private Client, Probate & Estate Adminstration, Residential Property | Comments closed

New ACAS Guidance: Age Discrimination

Whilst we are all aware of sex, race and disability discrimination, ‘ageism’ is not something that receives as much air time. But, pursuant to the Equality Act 2010, age is also a protected characteristic and as such, treating someone unfairly because of their age is against the law (with some exceptions).Acas

The Act aims to protect people from unfair treatment, harassment or different treatment because of their age, the age they are thought to be, or the age of someone they are associated with. It doesn’t matter if the discrimination is intentional, what matters is how the recipient perceives what is said or done. In practice, this should mean that employers should:

  • Strive for an age diverse workforce.
  • Encourage interaction between age groups (socially and in work based tasks or projects).
  • Judge people on performance or quality of their work/application.
  • Not be asking for age information and years’ of experience when hiring.
  • Not stereotype or make assumptions about different age groups when deciding who to hire, train or promote.
  • Manage under performance regardless of age.
  • Not assume a person will retire or force them to do so, due to their age.
  • Not tolerate the use of derogatory comments related to age.

Whilst most employers are vaguely aware of the issue, until now there has been little by way of guidance on how to navigate the law. As such, it’s no surprise that age discrimination is actually one of the most common forms of unfair treatment at work, particularly with workforces being increasingly age diverse.

The new Guidance from ACAS (The Advisory, Conciliation and Arbitration Service) which can be found here seeks to educate employers, prevent unintentional discrimination and make a real start at stamping out ageism altogether. All in all a very important read!

For more information and advice contact our Employment law team.

Posted in Employment, Legal Briefs | Comments closed

Christmas Parties Gone Wrong

As the Christmas party season gets into its full swing and the free booze is flowing, it’s easy to see how things can be said or done that will be regretted the next day. As such, whilst it ‘tis the season to be jolly, hosting a Christmas party can cause problems for employers long after the tree has come down.

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Vicarious liability holds an employer strictly liable for the wrongful conduct of its employees but will only arise where that conduct occurs ‘in the course of his/her employment’. It can arise from actions outside of usual working hours and will apply regardless of whether the acts are done with the employer’s knowledge or approval but not where the employee was on a ‘frolic of their own’. The Court’s consider ‘what was the nature of the employee’s job?’ and ‘is there a sufficient connection between the employee’s position and the conduct to make it just for the employer to be held liable?’.

Christmas parties are grey areas when it comes to vicarious liability as they are often held outside working hours and away from the workplace but paid for by the employer.  Adding alcohol into the mix means the usual boundaries are blurred and this can lead to inappropriate behaviour, unwanted advances, discrimination and misconduct. As is shown by the first example below, the Courts draw a distinction between events during the party itself and any subsequent gathering.

In Bellman v Northampton Recruitment Ltd (2016) the Managing Director punched an employee twice during a disagreement at 3am at a Christmas ‘after party’.  Mr Bellman’s head hit a marble floor causing brain damage and he sued his employer arguing that they were vicariously liable for the MD’s actions. The altercation was triggered by a work related dispute but the Judge drew a distinction between the main party and the after party at a different location; as nobody had been obliged to attend for late night drinks it was no longer a company event and the MD was no longer acting ‘in the course of his employment’ as organiser or host. As such the Judge found that the Company could not be vicariously liable.  Incidentally, it didn’t matter that the company contributed to the drinks bill and organised taxis to and from the after party.

The Courts can go the other way though. In Livesey v. Parker Merchanting Ltd (2004) the employer was found vicariously liable for the actions of an employee who sexually assaulted a colleague. The assault occurred in the car on the way home, immediately after the Christmas party and the Court found that the conduct was a continuation of sexual harassment at the work event and therefore ‘in the course of employment’.

What’s the answer? Employers need to be mindful of their potential liabilities and manage Christmas parties with care.  Having policies in place can make it clear what behaviour will not be tolerated and whilst nobody wants to be a Scrooge, staff should be reminded that the party will be an extension of the workplace so the same ground rules will apply.  It is also worth putting a Social Media policy in place regarding unflattering pictures, videos and comment being shared without consent.  Further, any inappropriate behaviour or actions which are reported or are seen at the party should be dealt with as a priority to mitigate the risk of claims.

If you are an employer or employee and need advice on any of the issues above, contact our Employment Solicitors or our Dispute Resolution team.

Posted in Employment, Legal Briefs | Comments closed

New Acas Religion & Belief Guidance

Religion will always be a sensitive subject and in a multicultural society like ours it can be tricky for employers to navigate without unintentionally discriminating.  With that in mind, Acas (the Advisory, Conciliation and Arbitration Service) have just issued new guidance on Religion and Belief discrimination.Acas

What is religion or belief discrimination?

The Equality Act 2010 makes it unlawful to discriminate against or treat someone unfairly because of religion or philosophical belief, or their lack thereof.  All protected beliefs are equal and so no one religion can override another. However, to be a protected philosophical belief, it must be more than an opinion, apply to a significant aspect of human life or behaviour, be worthy of respect and not conflict with other people’s the fundamental rights

The Guide

The Acas guidance suggests that discrimination is most likely to occur in recruitment, requests for time off and dress codes and suggests the following:

Recruitment

Job advertisements should be published widely, religion should not be mentioned in the posting but the employer should be clear in explaining the job’s duties and hours of work so there are no misunderstandings. Any potential issues should be flagged up early on in the recruitment process e.g. if the role involves client networking it would not be suitable for someone who refusesd to shake hands for religious reasons.

In rare circumstances employers can specify an ‘occupational requirement’ that a candidate must have (or not have) a particular religion or philosophical belief.

Leave Requests

Requests for time off for religious festivals or for religious reasons should be considered carefully and sympathetically and ideally, agreement on such requests should be set out within the employment contract. The guidance warns that refusing requests for leave for religious holidays and time to pray without good business reasons can lead to a claim for discrimination and also, that employers should acknowledge that employee performance may be affected during fasting.

Dress Codes

Where possible, employers’ dress codes should be flexible and reasonable and any restrictions must be based on solid business reasons that are proportionate, appropriate and necessary.

Is it useful?

In the absence of any government guidance, the Acas guide is long overdue and whilst it does go some way to inform and comfort employers it fails to address real life complexities of the workplace. For example, employers can be liable for their employees’ acts so it’s advisable to provide training to all staff on religion or belief discrimination and lay down firm rules on what behaviour is unacceptable. Employers should also note that if a discrimination cases got to an employment tribunal, the focus would be on how an individual ‘perceived’ words or actions and this is of course subjective.

If you are an employer or an employee and have concerns about discrimination in the workplace, contact North Ainley for expert legal advice.

Posted in Employment, Legal Briefs | Comments closed

Dress Codes: “Don’t tell me what to wear!”

As a society we are becoming increasingly averse to being told what to do, not least in the workplace and especially when the British summertime hits and we want to ditch the suits and keep cool……

Can I be told what to wear? There are many valid reasons why an employer may impose a dress code (corporate image, identification, health & safety) but it must relate to the job, be reasonable in nature and ideally be set out clearly in the organisation’s policy. Employees must also be informed of the policy and given enough time to buy the required attire.

But is it fair? A dress code must not be discriminatory against any of the ‘characteristics’ protected by the Equality Act 2010 (age, disability, gender reassignment, religion or belief, sex, or sexual orientation). For example, if a dress code is in place, reasonable adjustments may need to be made for disabled people and employers must respect clothing worn for religious reasons. However, this must be balanced against other relevant factors i.e. loose clothing may be a hazard when operating machinery.

Men v. women:  The Government Equalities Offices has recently published new guidance on dress codes and sex discrimination. The Guidance highlights that whilst dress policies for men and women do not have to be the same, the standards imposed on each sex should be equivalent. For example a policy can require men to ‘wear a tie’ whilst ‘business dress’ is required for women and requiring any gender-specific items (high heels, manicured nails or lipsticks) is likely to be held unlawful.

Recent media hype surrounding dress codes has caused many employers to review and even scrap their policies. Last summer male employees revolted against a ‘no shorts’ policy by wearing skirts to work and the Speaker of the House of Commons announced that male MPs no longer needed to wear a tie to speak, thus ending centuries of tradition.

What if I don’t want to? If the code is reasonable, staff can be dismissed for failing to comply but employers should be cautious of imposing high standards and risk having their policy tested by the Employment Tribunal.

Our Team at North Ainley provide clear and practical advice on all Employment Law issues.

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Annual Leave: Know your rights

Right about now, we are all feeling like we need a good dose of sunshine if not just a break from the hum drum of working life. So, what are your rights?

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Your basic rights – The Working Time Regulations 1998 ensure all employees and workers can take paid leave.  If you are full time, this is a minimum of 28 days every year to include bank holidays although your employer might be more generous.

When can you take it? – In theory, whenever you want as long as you give your employer notice.  There are no official rules so you should consult your contract of employment and company policies but you can expect to give your employer twice the length of notice as the time you propose to take off.  It’s also worth requesting your holiday in writing so you’ll have a record if you have to dispute it later.  Also note, you cannot be required to use annual leave when at home sick.

Can they say no? – Your employer can turn down your request if they have a good reason e.g they’d be understaffed at a busy time of year.  But, they have to give you the same amount of notice as the amount of time you were requesting to take off.

Unused holiday – Most employers will cover unused holidays in their policies with either a ‘use it or lose it’ clause or a limit on the number of days you can carry over to the next year.  If your employer isn’t clear on this they risk large claims for payments in lieu of holidays.

How much should I be paid?  You should be paid the same rate when on holiday as you’re normally paid.  If your pay or working hours vary you should get the average based on the last 12 weeks.

Unlawful deduction from wages  If you get commission, shift allowance etc on top of your basic pay, this should be included in your holiday pay i.e. you shouldn’t get paid less because you took time off.

This issue has been under the spotlight recently as it transpired that many individuals may have claims for unlawful deduction from wages as they earn a basic pay plus variable payments (shift allowance, overtime, commission) but only received basic pay when on holiday.  Workers should be alert to this and also to any sudden changes in holiday policy which could suggest their employer is trying to avoid such claims.

Resolving a problem – If you think your employer has breached its obligations the first step should be an informal chat to raise your concerns.  If this doesn’t work, check if your employer has a formal grievance procedure you can follow or raise a grievance by writing a letter setting out your concerns.  If this fails, you may be able to bring claim in the Employment Tribunal.  The time limit for a holiday pay claim is 3 months from either the termination of your contract or from the last unlawful deduction from wages.

For advice on all aspects of litigation and employment law please contact Laura Campbell in our Employment & Dispute Resolution team.

Posted in Employment, Legal Briefs | Comments closed

Holidays during term time: cheaper, but is it really worth it?

As we all struggle with the January blues, it’s no surprise this is prime holiday booking season.

Regardless of your views on whether it’s appropriate to take children out of school during term time, most of us are a bit vague on what we can and can’t get away with…..

When are absences allowed?

As a starting point, under English law any parent who fails to ensure their child goes to school ‘regularly’ is guilty of a criminal offence under Section 444 of the Education Act 1996.

The basic position is that you can only allow your child to miss school if:

  • They’re too ill to go in, or
  • You have advance permission from the school.

Advance permission

Previously, under the Education (Pupil Registration) (England) Regulations 2006 schools had the discretion to grant up to 10 days term time holidays each year for ‘special circumstances’. But, since The Education (Pupil Registration) (England) (Amendment) Regulations 2013 came into force head teachers can now only give permission in ‘exceptional circumstances’ (e.g. visiting seriously ill family, attending a close relative’s  funeral or if immediate family in the Armed Forces is returning from operations).

Basically, even with the most persuasive request you’re unlikely to get permission for a term-time holiday.

What happens if I take them away anyway?

You are breaking the law.

Head teachers have to report all absences to the council responsible for education in their area (LEA). Therefore, if an absence is unauthorised (i.e. advance permission was refused) you could face a £60 fine (per child per absence) or worse.

What if I don’t pay the fine?

If you don’t pay within 21 days the fine increases to £120 and if you don’t pay the fine after 28 days you can be prosecuted for your child’s absence from school under the Education Act 1996.

If found guilty you could end up with a criminal record and face a fine of up to £2,500, court costs or even a jail sentence of up to three months.

Repeat offenders may wish to note that the LEA are technically under no obligation to issue a fine (penalty notice) first and could take you straight to the Magistrate’s Courts.

A cautionary tale: Platt v Isle of Wight LEAJudgement

The Isle of Wight dad was prosecuted by the Council after he took his daughter to Florida for 7 days during term time without permission resulting in a fine which he refused to pay.

At first instance the Magistrates Court found there was no case to answer and two High Court Judges upheld that decision due to the child’s otherwise high attendance (95% prior to the holiday).  In April 2017 the Council successfully appealed to the Supreme Court who unanimously found that Mr Platt must face prosecution as “regularly” in the Act meant “in accordance with the attendance rules” and that a child’s prior record of attendance was irrelevant. The matter was sent back to the Isle of Wight where the Magistrate handed Mr Platt a 12 month conditional discharge and ordered him to pay £2,000 in costs.

This decision is binding on Courts and local authorities meaning anybody appealing a fine is now unlikely to be successful.

For further information and advice, please contact Laura Campbell at our office.

Posted in Commercial Litigation, Legal Briefs | Comments closed
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