Employment Update - 24 April 2009
Budget 2009: Statutory redundancy pay on the up
Alistair Darling, the Chancellor of the Exchequer, has announced this week that there will be a one-off increase in the weekly rate for statutory redundancy pay, from £350 to £380. This will increase the maximum statutory redundancy payment from £10,500 to £11,400. However, no announcement has been made as to when this will take effect or whether the maximum basic award for unfair dismissal will also increase at the same time.
It has also been announced that the Government is considering whether to introduce a new 'floor' which would set a minimum level for statutory redundancy payment rates. It would legislate on this in the next Parliament.
Legal representation at internal disciplinary hearing
As outlined in our last Employment Update, employees are potentially entitled in limited circumstances to be represented by a lawyer (as opposed to just a workplace colleague or union official) at internal disciplinary hearings, following a recent High Court decision. The decision may have wider implications for employers and any request by an employee to be represented by a lawyer in disciplinary proceedings should now be considered carefully.
In R (on the application of G) v The Governors of X School, X School commenced disciplinary proceedings against the claimant, a music assistant, following allegations of an abuse of trust with a 15 year old boy. The claimant requested legal representation at the disciplinary hearing. This request was refused and he was dismissed. The School was then obliged by statute to make a report to the Secretary of State on the basis that he might be unsuitable to work with children (the Secretary of State could then prohibit him from working with children in educational establishments). The claimant appealed, but his repeated request to be allowed legal representation was refused. The claimant applied for judicial review, arguing that Article 6 of the European Convention of Human Rights, which relates to the right to a fair trial, was breached by the School's failure to allow him legal representation at their internal hearings.
The High Court held that the disciplinary proceedings and the subsequent reference to the Secretary of State (with the possibility that the claimant would be prohibited from teaching), were part of the same procedure. No distinction could be drawn for the purposes of Article 6, as the referral to the Secretary of State was a natural and likely outcome of the disciplinary procedure. Due to the gravity of the allegations and the severity of the consequences, the High Court held that the claimant was entitled to legal representation at the disciplinary and appeal hearings. The fact that the claimant would have a right to make representations to the Secretary of State, a right of appeal and a right to bring a Tribunal claim did not provide him with sufficient procedural protection.
The High Court made it clear that its decision in respect of legal representation at the disciplinary hearings was confined to the circumstances of the particular allegations of misconduct made in this case with the prospect of a mandatory referral to the Secretary of State. It has been reported that permission to appeal to the Court of Appeal has been granted, so this judgment will be awaited with much interest. In the meantime, employers are advised to consider the circumstances of any requests for legal representation at disciplinary hearings very carefully.
Whilst this decision is confined to the particular issues which arose in this case, the principles may well be relevant to employees facing serious allegations which could adversely affect their ability to pursue a career. Although the case has more significance for public sector employers directly affected by the Human Rights Act 1998, there may be some ramifications in the private sector, for example, when determining whether a disciplinary process is fair or unfair if an individual has been refused legal representation.
Discrimination by association and perception
It has been announced that the forthcoming Equality Bill, expected to be published next week, will extend the prohibition of "associative and perceptive" discrimination and harassment to all discrimination strands.
The Government's decision to extend this prohibition follows the judgment of the European Court of Justice in Coleman v Attridge Law, as reported in a previous Employment Update.
The latest round of European talks to agree on the proposal to remove the opt-out from the Working Time Directive have failed.
As reported in a previous Employment Update, the European Commission delivered an opinion earlier this year, intended to help the European Council and European Parliament reach agreement on the proposed amendments to the Working Time Directive. The second round of talks took place earlier this month but no agreement has been reached on the opt-out. The negotiating teams are due to reconvene this week to try and find common ground, for a final meeting at the end of this month.
Employers to be named and shamed if fail to pay tribunal awards
From 1 April 2009, employers, or individuals, who fail to pay employment tribunal or Employment Appeal Tribunal awards in England and Wales will now be entered onto the Register of Judgments, Orders and Fines once enforcement proceedings are brought against them in the county court. The register can be searched by members of the public and credit reference agencies.
The Government has taken this measure in order to give weight to future employment tribunal rulings, help cut down the time successful claimants have to wait to receive payment and to reduce incidences of non-payment.
National Minimum Wage - policy on enforcement and prosecutions
The Department for Business, Enterprise and Regulatory Reform (BERR) has published a policy document setting out how the Government will operate the civil and criminal enforcement of the National Minimum Wage (NMW) in the light of changes introduced by the Employment Act 2008.
The new enforcement strategy is intended to be a fairer way of dealing with NMW arrears, providing a simpler, more effective penalty regime to deter non-compliance.
EHRC recommendations for parental rights
The Equality and Human Rights Commission (EHRC) has published a report, "Working Better", putting forward key recommendations for reforming parental leave and flexible working over the next decade. The report proposes a move towards more "gender-neutral" parental rights, which would increase fathers' take up of leave. It also recommends that the right to request flexible working should be extended to all employees through their working life. Research for a second report, concerning disabled workers, carers and older workers, will be completed during 2009.
In relation to parental leave, EHRC recommend a new approach that would give Britain a "world-class policy" by 2020. This approach involves:
The report also recommends that there should be greater flexibility in how paternity and parental leave can be taken e.g. as days, weeks or longer blocks of time and that temporary part-time work should be "a standard option" during parental leave.
In relation to flexible working, the EHRC made a number of recommendations, including:
The EHRC has called for the BERR Select Committee to consider its findings and recommendations and has asked for a high level summit to be hosted by BERR, bringing together a number of bodies, including the CBI and TUC, to act on the recommendations.
Report into the financial sector reveals huge gender pay gaps
A new report by the EHRC has revealed significant gender pay gaps in the finance sector of up to 60%.
Amongst the highest earners, the gender pay gap for full time hourly gross earnings is 45%, while women working full-time in the lowest paid roles in the sector receive on average 16% less in hourly gross pay than their male colleagues.
In the financial services sector as a whole, female full-time employees receive 55% less annual gross pay and 39% less hourly gross pay than men. These pay gaps are also approximately double the pay gap figures for the economy as a whole. 70% of men in the sector earned more than £29,400 in 2007/8, while 70% of women earned less than £29,500.
Employers be warned - candidates more likely to lie in current climate
The current economic climate and the resulting competition for jobs could push candidates to bend the facts in their favour, with 23% saying that tough economic times would force them to be liberal with the truth.
According to research commissioned by SHL, whilst the majority of potential candidates are honest, with 54% saying they would never lie or exaggerate to get a job, one in three would be persuaded if the salary made the risk worthwhile or if it was their 'dream job'. The research also showed that men can be more prone to being economical with the truth than women, with 26% of men compared to 22% of women prepared to stretch the truth.
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