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Author Archives: Laura Campbell

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.

Posted in Employment, Legal Briefs | Comments closed

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
  • Just a note to say thank you very much for all you did to make the recent conveyance go as smoothly as possible.
    Mr & Mrs Burgess - Moorside
  • Lisa Wright
    Lisa Wright
    15:05 25 Feb 19
    Cassie was fantastic throughout our sale and would recommend North Ainley if selling or buying a house.read more
    Lynn Findlater
    Lynn Findlater
    18:55 01 Dec 18
    I have used North Ainley for a number of years. They have successfully dealt with my parent's wills and more recently the sale of 2 properties. The staff are exceptional and imparticular Cassie who took care of the whole process from start to finish whilst I was overseas. She diligently chased all third parties and kept me informed at all times. I would recommend North Ainley as they have proved themselves time and again over the last 10 years in all of my family's legal affairs.read more
    Idnan Ahmed
    Idnan Ahmed
    12:57 30 Nov 18
    Excellent service. handled my latest commercial purchase professionally. Would recommend to anyone who is looking for a solicitors who are proffesional and easy to work with. Top service.read more
    Lucy Hoy
    Lucy Hoy
    16:39 27 Nov 18
    Excellent! Very friendly and fantastic communication throughout. Nothing was to much trouble. Thankyou Vinesh and Cassie. Would definitely recommend.read more
    Anil M
    Anil M
    15:11 04 Nov 18
    Fantastic Solicitors firm. Very professional. Close to Oldham Town Centre. Answer all your questions and concerns. Keep you upto date at every stage. I have used this firm for many years in buying and selling property. You can not go wrong using North Ainley Solicitors.read more
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