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<copyright>Copyright &#169; 2012 Jenny Gibson</copyright>
<pubDate>Thu, 17 May 2012 07:46:55 +0100</pubDate>
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<docs>http://blog.lblaw.co.uk/</docs>
<description>Lanyon Bowlder Solicitors blog.</description>
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<link>http://blog.lblaw.co.uk/</link>
<description>Lanyon Bowlder Solicitors blog.</description>
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<webMaster>Jenny Gibson</webMaster>
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<title><![CDATA[Social Media and the Potential Impact on Businesses]]></title>
<link>http://blog.lblaw.co.uk/social-media-and-the-potential-impact-on-businesses-343/</link>
<description><![CDATA[
Social media is playing an increasing part in our daily lives with the growing popularity of Twitter, Facebook and other social networking sites for both personal and business use. Employers should be aware of social media and its potential impact on their business. Following research commissioned by ACAS, they advise employers to (i) draw up a policy on social networking (ii) treat 'electronic behaviour' in the same way you would treat 'non-electronic behaviour' and (iii) react reasonably to issues around social networking by asking 'what is the likely impact on the organisation?'One of the main concerns for employers will be lost productivity because employees are spending too much time on social networking sites whilst they should be working. A social media policy should inform employees of when it is acceptable to be using social networking sites at work (if at all) and will make employees aware of the potential consequences if that policy is breached. As with any misconduct issue, it is important that employees are dealt with as consistently as possible taking into account the particular circumstances of the individual. Another concern for employers will be how to manage situations when employees use social media to express views about other employees or about the employer. If those comments are derogatory or inappropriate, such behaviour is likely to constitute misconduct and will need to be dealt with in accordance with the employers disciplinary procedure. We would recommend that the social media policy and, potentially, also the disciplinary procedure be amended to include clear examples of what will be regarded as gross misconduct.As social media is always changing, it is important for policies to be reviewed from time to time, to keep them up to date. The ACAS guidance can be found at:http://www.acas.org.uk/index.aspx?articleid=3375. Employers who would like further advice regarding social media and employment issues should contact me, Jenny Gibson on 01952 211025 or email jenny.gibson@lblaw.co.uk. 
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<category><![CDATA[Employment Law]]></category>
<pubDate>Wed, 30 Nov 2011 12:19:06 +0000</pubDate>
<guid>http://blog.lblaw.co.uk/social-media-and-the-potential-impact-on-businesses-343/</guid>
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<title><![CDATA[Amendments Made to Employment Equality Regulations 2011]]></title>
<link>http://blog.lblaw.co.uk/amendments-made-to-employment-equality-regulations-2011-273/</link>
<description><![CDATA[
Following on from my original blog of 22 February, a revised draft of the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 has now been released following the concerns raised regarding the previous draft. 
The main concern raised by practitioners was that according to the first draft, if an employee was over 65 on 6 April 2011, even if he had already been given notice of retirement to take place after that date in accordance with current legislation, the employer would not have been lawfully entitled to retire that employee unless the retirement age could have been objectively justified. This has now been corrected and as long as the employee has been given notice of the employers intention to retire them by 5 April 2011 and the employee is 65 or will be by 30 September 2011, they can be retired lawfully on the grounds of retirement. 
To comply with the current legislation, an employer has to give a minimum of 6 and a maximum of 12 months notice of its intention to retire so it would appear at first that the last date an employer can retire an employee under the current legislation is 4 April 2012 (12 months from 5 April 2011). However, the legislation enables employers, following a request from the employee (which must be at least 3 months before the intended retirement date), to postpone a retirement date by up to 6 months and then to compulsorily retire the employee on the new date without taking any further procedural steps Therefore if, on 5 April 2011, an employer gives 12 months notice of intention to retire an employee on 4 April 2012, it could agree an extension up to 3 October 2012 without the need to give any further notification and can retire the employee under the current legislation. 
The Regulations are certainly not straightforward! If any employers are unsure how they will apply to their current employees they should contact Lanyon Bowdlers employment team for further advice. ]]></description>
<category><![CDATA[Employment Law]]></category>
<pubDate>Thu, 03 Mar 2011 11:55:27 +0000</pubDate>
<guid>http://blog.lblaw.co.uk/amendments-made-to-employment-equality-regulations-2011-273/</guid>
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<title><![CDATA[Default Retirement Rule Abolished - So What Does It Mean?]]></title>
<link>http://blog.lblaw.co.uk/default-retirement-rule-abolished-so-what-does-it-mean-267/</link>
<description><![CDATA[
It has recently been confirmed that the rules relating to default retirement ages and compulsory retirement will cease to have effect from 1 October 2011.
Regulations have now been published (The Employment Equality (Repeal of Retirement Age) Provisions 2011), which come into force on 6 April 2011 and deal with the phasing out of the default retirement age. However, they appear to contain an important drafting error. 
Unless the transitional provisions of the Regulations apply, a dismissal on the grounds that someone has reached a retirement age at or over 65 will be unfair and amount to age discrimination, unless it can be objectively justified by the employer. The transitional provisions will only apply if two conditions are met (i) notification of retirement has been given in accordance with Schedule 6 to the Employment Equality (Age) Regulations 2006 before 6 April 2011 and (ii) the employee will attain the age limit (65 or any higher applicable retirement age) between 6 April 2011 and 30 September 2011. 
Therefore, as currently drafted, if an employee is over 65 on 6 April 2011, even if he has already been given notice of retirement to take place after that date in accordance with current legislation, the employer will not be lawfully entitled to retire that employee unless the retirement age can be objectively justified. 
It has to be hoped that this is a drafting error that will be rectified before the Regulations come into force.  If not, employers who make employees compulsorily redundant after 5 April who had reached 65 by that date will be exposed to unfair dismissal and age discrimination claims. 
If you are an employer and are unsure how the Regulations will apply to your current employees then do contact our employment team for further advice on 01952 291222.]]></description>
<category><![CDATA[Employment Law]]></category>
<pubDate>Tue, 22 Feb 2011 09:43:47 +0000</pubDate>
<guid>http://blog.lblaw.co.uk/default-retirement-rule-abolished-so-what-does-it-mean-267/</guid>
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<title><![CDATA[Changes to Tax on Termination Payments from 6 April 2011]]></title>
<link>http://blog.lblaw.co.uk/changes-to-tax-on-termination-payments-from-6-april-2011-266/</link>
<description><![CDATA[
Employers should take care that termination payments are taxed correctly because HMRC can recover unpaid tax, national insurance contributions, penalties and interest from them. Sometimes, for example under the terms of a compromise agreement, the employer will have the benefit of an indemnity from a former employee in respect of any further liabilities, but those will only be as good as the former employees ability to pay, and the potential hassle of enforcing an indemnity, and otherwise getting on the wrong side of HMRC, is best avoided.   
The first 30,000 of non-contractual payments and also contractual redundancy payments (but not any payment in connection with retirement other than from an approved pension scheme within HMRC limits) made to an employee as a result of the termination of his employment is tax-free. The employee will pay income tax (but not national insurance contributions) on the amount over 30,000. At present, if a termination payment is made after the issue of the P45, employers can deduct only basic rate tax and leave the employee to account for any higher or additional rate tax in a tax self-assessment, which can be up to 21 months later. This is good for employees as they can take the benefit of the additional cash for longer, which they could invest etc.  However, HMRC has announced that there will be changes from 6 April 2011 that mean all of a termination payment above 30,000 will have to be taxed at the employees rate of tax at that time. If higher or additional rate tax is deducted from the termination payment but, for example, he does not work again during that same tax year, he will have to claim the overpayment back from HMRC.  
HMRC has indicated that further guidance will be issued this month, so watch this space. However, in the meantime employers are advised to amend any compromise agreements which refer to the deduction of basic rate tax only and if further advice is needed in this regard, they should contact Lanyon Bowdlers employment team.  
 ]]></description>
<category><![CDATA[Employment Law]]></category>
<pubDate>Fri, 18 Feb 2011 13:21:51 +0000</pubDate>
<guid>http://blog.lblaw.co.uk/changes-to-tax-on-termination-payments-from-6-april-2011-266/</guid>
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<title><![CDATA[A Closer Look at The Employer's Charter]]></title>
<link>http://blog.lblaw.co.uk/a-closer-look-at-the-employers-charter-265/</link>
<description><![CDATA[
On 27 January 2011, at the same time as launching a consultation on tribunal reforms, the Government published a document called the Employers Charter, which can be found at www.businesslink.gov.gov.uk/employerscharter. 
The Charter states that employers can do a list of things in relation to their employees, as long as they act fairly and reasonably. Examples of such things include asking an employee to take a pay cut, making an employee redundant if the business takes a downturn and asking an employee about their future career plans, including retirement. 
The Prime Minister has stated that the Charter sets out clearly the rights they (employers) have in the workplace and that it will provide clarity for employers on what steps they can take when handling workplace issues with staff. However, whilst it is the case that the law allows employers more flexibility in their dealings with employees than many employers assume to be the case, the Charter is far from a clear statement of employers rights and, on the contrary, is dangerously misleading. 
Lets have a look at the examples from the Charter that I have referred to above. 
Regarding pay cuts, I wonder whether it would be apparent to an employer reading the Charter that unilaterally reducing an employees pay will amount to a fundamental breach of contract entitling the employee to resign and claim constructive wrongful and unfair dismissal, or to remain in employment and make a claim for unlawful deduction from wages? Or that proposing to 20 or more employees that they should take a pay cut could trigger obligations in respect of collective consultation? Whilst an employer who was fully informed and who followed the correct procedures might be entitled to apply a pay cut, an employer who does not take advice could interpret the Charter as meaning they have carte blanche to vary employees wages as they see fit and expose themselves to considerable liabilities. 
Regarding making an employee redundant, an employer may think that he is acting fairly and reasonably by making an employee redundant because he has been employed for the shortest amount of time or because he is older and does not have a young family to support like the other employees. However, that sort of action could leave the employer with a tribunal claim for unfair dismissal and/or age discrimination. Any redundancy selection must be on grounds that are not unlawfully discriminatory and, in the case of employees with unfair dismissal protection, must be on objectively reasonable grounds and subject to reasonable warning and consultation and a right to appeal. Before making 20 or more employees redundant, there will be a requirement, again, to consult collectively.  A competent professional adviser will be able to apply these requirements readily, but would most employers?  Would an employer even suspect that these requirements might apply on the face of the Charter?
My initial thought on reading the final example listed above, regarding asking employees about future career plans,  was of an employer asking a newlywed female employee what her future plans were regarding having children. I wonder how that would be received by her?  Some employees would take that, rightly or wrongly, as an indication that the employer might not favour them having children, and might point to the fact that that question was asked and allege sex discrimination in the event that thereafter they were, say, overlooked for promotion or denied a pay rise.
We would always encourage employers to not automatically assume that they cannot manage their workforces as effectively as they might wish because of a misplaced perception that employment laws are stacked in favour of employees and will prevent them taking reasonable business decisions  as long as they realise that there are some things that cannot be done lawfully, and there are many things that can be done lawfully only if things are gone about the right way.  Lanyon Bowdler's Employment Law department strongly recommend that employers take legal advice before carrying out any of the actions listed in the Charter, or any other similar actions, with a view to achieving what they require without incurring liabilities. ]]></description>
<category><![CDATA[Employment Law]]></category>
<pubDate>Mon, 07 Feb 2011 09:48:26 +0000</pubDate>
<guid>http://blog.lblaw.co.uk/a-closer-look-at-the-employers-charter-265/</guid>
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<title><![CDATA[New Equality Act Wouldn't Tolerate Downton Abbey Discrimination Antics!]]></title>
<link>http://blog.lblaw.co.uk/new-equality-act-wouldnt-tolerate-downton-abbey-discrimination-antics-234/</link>
<description><![CDATA[
The new period drama Downton Abbey currently showing on ITV is already proving to be a hit with the viewing public.  In light of the recently introduced Equality Act 2010, it is interesting to note the disability discrimination storyline featured in the first episode of the series and how things were so very different (for the worse!) in Edwardian times. 
A new valet, John Bates, an ex-soldier who suffers with a limp as a result of an injury sustained in the Boer War, arrives at Downton Abbey.  Robert Crawley, the present Earl, who served with Bates in the war, employs him without knowing that he has a limp. First Footman, Thomas, is particularly angry at Bates recruitment, having been passed over for promotion for the same role, and colludes with a maid, OBrien, to sabotage Bates first few days at work in order to force either a dismissal or resignation.  Their behaviour includes, in addition to making it clear to John Bates that he is not welcome, tripping him up in front of the Earl and informing members of the upstairs household that he is not capable of performing his role.   The drama is set nearly 100 years ago when employees had no rights in the workplace.  Today the Equality Act 2010 affords disabled employees certain rights, and had the above behaviour happened today, John Bates would have a number of claims in the employment tribunals not only against the Earl as his employer, but potentially also against Thomas and OBrien.  
An employer directly discriminates against another if, because of a disability, he treats him less favourably than he treats or would treat others.  At the end of the first episode, the Earl actually dismissed John Bates on the assumption that the complaints made by the other staff were correct, only to have a change of heart at the last minute. Under modern day employment law, if John Bates had refused to stay after being told to leave he would have had a claim for direct disability discrimination because he had been dismissed because of his disability. 
Further, John Bates was subjected to unlawful harassment by his colleagues, in that they subjected him to unwanted conduct related to his disability that had the purpose or effect of violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
Awards of compensation for dismissal are unlimited and will include awards for injury to feelings.
It is important that all employers have in place up to date anti-discrimination policies and that they provide anti-discrimination training on induction and from time to time to (i) make discrimination less likely (ii) provide a possible statutory defence to claims and (iii) encourage the reporting of concerns regarding discrimination, so they can be dealt with in a timely manner, and so limiting potential awards of compensation. 
]]></description>
<category><![CDATA[Employment Law]]></category>
<pubDate>Fri, 15 Oct 2010 12:25:30 +0100</pubDate>
<guid>http://blog.lblaw.co.uk/new-equality-act-wouldnt-tolerate-downton-abbey-discrimination-antics-234/</guid>
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<title><![CDATA[Changes in Weekly Pay - The Facts]]></title>
<link>http://blog.lblaw.co.uk/changes-in-weekly-pay-the-facts-143/</link>
<description><![CDATA[The increase in the maximum amount of a weeks pay on 1 October 2009 from 350.00 to 380.00 will see employers paying out more when making redundancies.The concept of a capped level of weekly pay is applied when calculating statutory redundancy pay.  It also applies to certain other compensatory payments, such as to what is known as the basic award element of unfair dismissal compensation, and to some payments made to employees by the State when an employer becomes insolvent. Traditionally, the cap on weekly pay for these purposes increases on 1 February each year.  However, this year the Government has increased the figure for a second time in order to provide some additional assistance to employees affected by redundancy.  The increase benefits employees who are dismissed on or after 1 October.  However, there will now be no further increase in the figure until February 2011.Due to the way statutory redundancy pay is calculated, the maximum overall increase in statutory redundancy pay for any one employee will be 900.00.  However, the impact on most payments will be modest, and employees who earn less than 350 will be no better off at all.Calculating the amount an employee earns in a week is fairly straightforward if his earnings do not vary from week to week, but in the case of an employee whose earnings do vary, perhaps due to the number of hours worked or due to piece work, the calculation of a weeks pay can be very complicated.  Any employer who is unsure about an employees entitlement upon redundancy should take advice to avoid later claims for outstanding payments.  It is also prudent to take advice about redundancy selection as a whole in order to minimise exposure to awards for unfair dismissal and unlawful discrimination; and also, where 20 or more employees are proposed to be dismissed within a 90 day period, to avoid protective awards of up to 90 days pay per affected employee.]]></description>
<category><![CDATA[Employment Law]]></category>
<pubDate>Mon, 05 Oct 2009 10:10:17 +0100</pubDate>
<guid>http://blog.lblaw.co.uk/changes-in-weekly-pay-the-facts-143/</guid>
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<title><![CDATA[Workers Could Reclaim Holiday When They've Been Sick]]></title>
<link>http://blog.lblaw.co.uk/workers-could-reclaim-holiday-when-theyve-been-sick-139/</link>
<description><![CDATA[The European Court of Justice has held, in the case of Pereda v Madrid Movilidad, that if a worker is sick during a period of annual leave, he is entitled to take the affected period of leave at another time, if he would not otherwise have had (free of sickness) the minimum period of annual leave provided for by the Working Time Directive (the Directive)  including, if necessary, if this means taking the relevant number of days holiday during the next leave year. The Directive provides that workers are entitled to a minimum of 4 weeks holiday in any leave year. The Working Time Regulations (the Regulations), which implement the Directive into UK law, are more generous, currently giving workers the right to 5.6 weeks annual leave (28 days for a full time worker).The Regulations currently expressly prohibit the carrying over of untaken holiday entitlement under the Regulations (as opposed to any additional contractual holiday entitlement) from one leave year to the next.  The element of the decision in Pereda relating to taking leave in a subsequent holiday year would therefore appear only to currently benefit public sector workers in the UK (to whom European law apples directly), and not private sector workers.  There is also an argument that the drafting of the Regulations means that private sector employees will not be able to insist that any days of annual leave affected by sickness can be retaken at a later date at all  but this is less clear.To the extent that the principle in Pereda can be relied on in the UK by employees in the public or private sector, it is arguable that there is a right to take at least 5.6 weeks annual leave unaffected by sickness, as opposed to the 4 week period provided for under the Directive.If an employee returns after a holiday (including if it was a fixed shutdown period outside which there are normally limited, or no, opportunities to take annual leave) and informs the employer that he was ill for all or part of the period, the employer will have take a view as to whether or not it accepts that the employee was genuinely ill and whether to allow him to re-take the affected period of holiday at a later date.Employers should proceed with caution before alleging an employees claims of sickness are believed to be false, at least without reasonable grounds for suspicion. The employee may treat such allegations as a breach by the employer of the implied term of trust and confidence, resign and make claims based on constructive dismissal.An area for consideration will be in relation to reporting procedures. If an employee is absent from work on holiday, should he be expected to comply with normal sickness reporting requirements? Employers may wish to consider amending their current procedures to remove any ambiguity, e.g. by making it clear that absence must still be reported by a given time (GMT) on each day (or as soon after as is reasonably practicable thereafter, if the employee is abroad and there would be reasonable difficulties in complying with the rule due to time differences) and supported by medical evidence.For statutory sick pay (SSP) purposes, employers cannot insist that employees report sickness absence by a given time on the first day of absence (although this can be insisted upon in respect of subsequent days); and if employers do not expressly specify notification rules, the default position is that employees will have a full 7 days to notify sickness absence.For SSP purposes, employees can self-certify in respect of up to 7 days incapacity and, thereafter, must produce medical certificates.  Employers can, however, insist upon medical certificates being produced earlier for the purposes of their own contractual sick pay schemes or otherwise their absence procedures.  Consideration might be given to expressly stating that any incapacity claimed during a period of holiday must be supported by a medical certificate and/or (in the case of employees who normally benefit from more generous rules) that periods of incapacity while on holiday will be paid only in accordance with basic SSP entitlement (including that there will be no payment during the first 3 waiting days of incapacity.(However, employers should note that SSP can only be denied if employees unreasonably delay in providing notification of absence, but not merely for a delay in providing the relevant evidence of incapacity.)Employers should note, further, that changes in their rules relating to holidays and sickness might only draw the attention of employees to rights that would otherwise have been overlooked.Employers are, of course, still entitled to monitor employees sickness levels in the normal way and, subject to a fair procedure and consideration of the individual circumstances of the employee, unacceptable levels of sickness absence can be a fair reason for dismissal.  A well drafted and properly applied absence policy can make the monitoring of levels of absence, and discouraging excessive or otherwise casual absences at all times, quite straight forward.jennifer.gibson@lblaw.co.uk - 01952 211025]]></description>
<category><![CDATA[Employment Law]]></category>
<pubDate>Thu, 24 Sep 2009 15:13:05 +0100</pubDate>
<guid>http://blog.lblaw.co.uk/workers-could-reclaim-holiday-when-theyve-been-sick-139/</guid>
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