Two recent tribunal decisions could pave the way for a clearer view on holidays and sick pay, says a leading employment lawyer.
Tim Jones, head of employment law at Higgs & Sons, says that the cases of Khan v Martin McColl and Souter v Royal College of Nursing are both helping to clarify the matter for employers across the region.
“Since the House of Lords gave its decision in the case of Stringer, employment lawyers have been arguing over the consequences of that judgment in day to day employment terms,” says Tim.
“In the Stringer case, the House of Lords made clear that an employee on long term sickness absence who had exhausted their contractual and statutory sick pay, did accrue statutory holiday and should be allowed to take it.
“However, what was unclear from the House of Lords was whether the unused holiday entitlement could be carried over and used in subsequent years. The European Court of Justice in its judgment had made clear that its view was that workers accrued four weeks paid holiday whilst on sick leave and should be allowed to take this when they return to work even if their return to work was in the following leave year.”
The case of Khan v Martin McColl highlights that employers may be able to avoid paying accrued holiday pay for a previous year if they act promptly enough.
Tim explains: “Mr Khan started his long term sick leave in May 2008 and did not return to work before he resigned in August 2009. The company made payment of the accrued holiday for 2009 but did not make a payment in lieu for the holiday that had accrued in 2007/2008.
“Mr Khan brought a claim but failed. The Tribunal held that by making the payment of the accrued holiday pay for 2009, this broke the series of deductions. They went further and said that in their view the decision in Stringer provided that employees could only carry over holiday when they had been refused the right to take it. As Mr Khan had not asked to take holiday in 2008 he had therefore not been denied the right and accordingly there was no right to carry over.”
Since the decision in Khan there has also been a decision of the Edinburgh Employment Tribunal in Souter v Royal College of Nursing Scotland. In this case, Mrs Souter held an administrative job with Royal College of Nursing until she retired on the 21 April 2010. She had been on long term sick leave from 7 November 2001 and had been in receipt of permanent health insurance from 7 November 2002. Upon retirement the Royal College of Nursing paid Mrs Souter her accrued holiday for the leave year 1 January 2010 to 21 April 2010. In May 2010, Mrs Souter brought an unlawful deduction action against the Royal College of Nursing seeking compensation for statutory holiday pay in respect of the whole period of her sickness absence. The Edinburgh Tribunal rejected her claim saying that the claim was out of time, that as she had neither sought to take holiday when she was off sick, nor had she been prevented from taking holiday there was no right for untaken leave to carry over, and furthermore that her entitlement to holiday pay would have been at her permanent health insurance rate, not her working salary rate and therefore she had suffered no financial loss.
Tim believes that these two cases now give employers some degree of clarity and hope in what has otherwise been an area of some confusion. “Although it should be recognised that both the cases are Tribunal decisions only and therefore not binding on other tribunals or higher courts, they do give some important guidance to employers and their lawyers.”
For help with your employment law matters, contact Tim Jones directly on 0845 111 5050.
Showing posts with label employment law. Show all posts
Showing posts with label employment law. Show all posts
Thursday, 25 November 2010
Wednesday, 18 August 2010
Lawyer says employers could face more tribunals with changes to retirement age
A Black Country employment lawyer is warning businesses that they could face the risk of increased age discrimination claims in the near future.
Nick Vernon of law firm Higgs & Sons, believes that the proposed changes in the law on the default retirement age recently announced will lead to more employment tribunals: The Government has recently published a consultation document setting out its proposals to phase out the current default retirement age of 65 in October 2011.
Nick says “In a statement the Department for Business said they estimated that the changes would lead to a reduction of between 200 and 400 employment tribunals every year. However it’s our belief that the exact opposite may occur because employers in the region will be forced to prove whether or not older employees are capable of continuing in their current role at 65. We believe this will lead to an increase in older employees taking their employers to employment tribunals claiming age discrimination.”
A six-month transition period from the existing regulations begins in April 2011.
Nick continues: “It’s estimated that the Exchequer could gain an extra £79 million in tax revenues in the first year alone once the default age is scrapped.
“The Government has also claimed that the changes will save employers money, but it appears to be underestimating how much businesses will spend in costly tribunals taken by disgruntled workers who are classed as incapable of working in their current role once they pass 65.
"We strongly suggest that employers take legal advice before making any changes to existing employment contracts."To find out how Higgs & Sons' employment team can support your business, contact them directly on 0845 111 5050 or visit www.higgsandsons.co.uk.
Nick Vernon of law firm Higgs & Sons, believes that the proposed changes in the law on the default retirement age recently announced will lead to more employment tribunals: The Government has recently published a consultation document setting out its proposals to phase out the current default retirement age of 65 in October 2011.
Nick says “In a statement the Department for Business said they estimated that the changes would lead to a reduction of between 200 and 400 employment tribunals every year. However it’s our belief that the exact opposite may occur because employers in the region will be forced to prove whether or not older employees are capable of continuing in their current role at 65. We believe this will lead to an increase in older employees taking their employers to employment tribunals claiming age discrimination.”
A six-month transition period from the existing regulations begins in April 2011.
Nick continues: “It’s estimated that the Exchequer could gain an extra £79 million in tax revenues in the first year alone once the default age is scrapped.
“The Government has also claimed that the changes will save employers money, but it appears to be underestimating how much businesses will spend in costly tribunals taken by disgruntled workers who are classed as incapable of working in their current role once they pass 65.
"We strongly suggest that employers take legal advice before making any changes to existing employment contracts."To find out how Higgs & Sons' employment team can support your business, contact them directly on 0845 111 5050 or visit www.higgsandsons.co.uk.
Tuesday, 1 June 2010
World cup fever could be an illness too far for region's employers
One of the region’s leading employment lawyers has set down some advice for employers on the eve of the World Cup.
Damian Kelly, a partner in Higgs & Sons’ employment department says that while most employers in the region will watch the World Cup themselves, some have given little or no thought on how to handle their employees during the tournament.
“Some employers will screen key matches at the workplace but this may not be possible for some businesses, even if they have the facilities. If employers can’t apply this consistently for all employees company-wide they could be exposing themselves to complaints and problems from those that are excluded.”
Alternatives for employers to consider include:
· Allowing employees to listen on the radio or via their computer – no licence required
· Where flexible working is in place, some employees may be able to work around the matches that they want to watch and make up lost time
· Employers may consider introducing flexible working for the duration of the World Cup or for key matches
Sickness Absence or Football Injuries
All employees should be required to report any absence to a trained and specified central person during the World Cup.
Damian said: “It’s vital that employers monitor absence closely during this period. The person to whom employees are required to report can ask more probing and appropriate questions when speaking to employees about their absence and can identify absence patterns on match days. This approach, coupled with advance warning to employees that unauthorised absences without a good reason and sickness absences that are not genuine will be dealt with under the disciplinary procedure, should help to discourage absenteeism during the World Cup period.”
If employees are absent during the World Cup employers should investigate further and question the employee when he or she initially reports the absence and conduct a return-to-work interview.
Damian said: “If you have a reasonable belief that the absence is not genuine, based on your investigations - perhaps because the employee has given evasive or inconsistent answers - you may take the matter further. Where there is evidence that the employee was not sick, for example he or she was seen in the pub watching a match, this will clearly be a disciplinary matter.”
Damian has produced a handy five point plan for employers in the region:
1. Before the tournament starts, remind employees that if they want to take time off work, they must make holiday requests in the usual way, and that it may not be possible to accommodate all requests, but explain the basis on which requests will be granted e.g. on a first come first served basis.
2. Remember to treat all employees equally regardless of nationality. If you allow England supporters time off to watch an England game, you should do the same for non-English nationals who want to watch their national team play. A failure to do this could lead to a discrimination claim.
3. Explain that standard levels of attendance and performance are expected throughout the World Cup.
4. Remind employees of your alcohol policy and re-enforce that any breach will result in disciplinary action.
5. Likewise remind employees of your Equal Opportunities Policy and any Non-Harassment/Bullying Policy and make it clear that offensive behaviour towards employees of other nationalities is unacceptable and will be dealt with under your disciplinary policy.
For one-to-one advice from Damian or a member of the Higgs & Sons’ employment team call 0845 111 5050.
Damian Kelly, a partner in Higgs & Sons’ employment department says that while most employers in the region will watch the World Cup themselves, some have given little or no thought on how to handle their employees during the tournament.
“Some employers will screen key matches at the workplace but this may not be possible for some businesses, even if they have the facilities. If employers can’t apply this consistently for all employees company-wide they could be exposing themselves to complaints and problems from those that are excluded.”
Alternatives for employers to consider include:
· Allowing employees to listen on the radio or via their computer – no licence required
· Where flexible working is in place, some employees may be able to work around the matches that they want to watch and make up lost time
· Employers may consider introducing flexible working for the duration of the World Cup or for key matches
Sickness Absence or Football Injuries
All employees should be required to report any absence to a trained and specified central person during the World Cup.
Damian said: “It’s vital that employers monitor absence closely during this period. The person to whom employees are required to report can ask more probing and appropriate questions when speaking to employees about their absence and can identify absence patterns on match days. This approach, coupled with advance warning to employees that unauthorised absences without a good reason and sickness absences that are not genuine will be dealt with under the disciplinary procedure, should help to discourage absenteeism during the World Cup period.”
If employees are absent during the World Cup employers should investigate further and question the employee when he or she initially reports the absence and conduct a return-to-work interview.
Damian said: “If you have a reasonable belief that the absence is not genuine, based on your investigations - perhaps because the employee has given evasive or inconsistent answers - you may take the matter further. Where there is evidence that the employee was not sick, for example he or she was seen in the pub watching a match, this will clearly be a disciplinary matter.”
Damian has produced a handy five point plan for employers in the region:
1. Before the tournament starts, remind employees that if they want to take time off work, they must make holiday requests in the usual way, and that it may not be possible to accommodate all requests, but explain the basis on which requests will be granted e.g. on a first come first served basis.
2. Remember to treat all employees equally regardless of nationality. If you allow England supporters time off to watch an England game, you should do the same for non-English nationals who want to watch their national team play. A failure to do this could lead to a discrimination claim.
3. Explain that standard levels of attendance and performance are expected throughout the World Cup.
4. Remind employees of your alcohol policy and re-enforce that any breach will result in disciplinary action.
5. Likewise remind employees of your Equal Opportunities Policy and any Non-Harassment/Bullying Policy and make it clear that offensive behaviour towards employees of other nationalities is unacceptable and will be dealt with under your disciplinary policy.
For one-to-one advice from Damian or a member of the Higgs & Sons’ employment team call 0845 111 5050.
Tuesday, 25 May 2010
Higgs seminar set to tackle disciplinary and grievance procedures
The latest seminar from one of the region’s leading employment law teams will tackle disciplinary and grievance procedures.
Employers from across the Midlands will come together on Wednesday 2 June 2010 at Higgs & Sons’ new flagship headquarters at the Waterfront Business Park, Brierley Hill, to discuss how to handle disciplinary procedures according to the ACAS Code of Practice.
Louise O’Connor, Higgs & Sons’ HR consultant said: “This is an excellent opportunity for HR professionals and business owners and directors from our region to meet each other and learn about how to minimise future risk.
“If businesses fail to follow the ACAS Code of Practice an employment tribunal may increase an award to an employee by up to 25 per cent. Our seminar is designed to bring employers up to speed and support them.”
Places for the seminar are still available. To book your place email louise.oconnor@higgsandsons.co.uk or telephone 0845 111 5050.
Employers from across the Midlands will come together on Wednesday 2 June 2010 at Higgs & Sons’ new flagship headquarters at the Waterfront Business Park, Brierley Hill, to discuss how to handle disciplinary procedures according to the ACAS Code of Practice.
Louise O’Connor, Higgs & Sons’ HR consultant said: “This is an excellent opportunity for HR professionals and business owners and directors from our region to meet each other and learn about how to minimise future risk.
“If businesses fail to follow the ACAS Code of Practice an employment tribunal may increase an award to an employee by up to 25 per cent. Our seminar is designed to bring employers up to speed and support them.”
Places for the seminar are still available. To book your place email louise.oconnor@higgsandsons.co.uk or telephone 0845 111 5050.
Monday, 24 May 2010
Higgs strengthens employment team with senior appointment
Higgs & Sons has strengthened its employment team with the appointment of a new partner.
Damian Kelly joins the Black Country legal firm from Eversheds where he trained in 1994 and was most recently a partner in the employment team.
Tim Jones, head of Higgs’ employment team said Damian’s appointment comes at a time where the volume and quality of work coming in to the department requires an experienced partner to meet demand.
“Damian’s appointment means our employment department is now seven lawyers strong – by far the largest team in the Black Country.
“One of our key strengths is our ability to take a case from the very start to the end thanks to our experienced advocacy team.
“Damian joins us at an exciting time, with the firm’s business disciplines now housed under one roof at the Waterfront Business Park. In the few short months since our move, we have already seen increased work from our strong corporate team, which we are looking to capitalise on further in the future.”
Damian said: “I am delighted to join Higgs & Sons at such a progressive time in its development. The firm has an excellent reputation in the employment field and I am looking forward to helping the team achieve its ambitious growth plans.
Damian Kelly joins the Black Country legal firm from Eversheds where he trained in 1994 and was most recently a partner in the employment team.
Tim Jones, head of Higgs’ employment team said Damian’s appointment comes at a time where the volume and quality of work coming in to the department requires an experienced partner to meet demand.
“Damian’s appointment means our employment department is now seven lawyers strong – by far the largest team in the Black Country.
“One of our key strengths is our ability to take a case from the very start to the end thanks to our experienced advocacy team.
“Damian joins us at an exciting time, with the firm’s business disciplines now housed under one roof at the Waterfront Business Park. In the few short months since our move, we have already seen increased work from our strong corporate team, which we are looking to capitalise on further in the future.”
Damian said: “I am delighted to join Higgs & Sons at such a progressive time in its development. The firm has an excellent reputation in the employment field and I am looking forward to helping the team achieve its ambitious growth plans.
Wednesday, 12 May 2010
Genuine applicants need only apply for compensation
A recent age discrimination case which saw the litigant try but fail to claim compensation from 20 different recruitment consultancies is a victory for common sense says one of the region’s leading employment lawyers.
Tim Jones, head of Higgs & Sons’ employment department and one of the region’s leading employment lawyers, says that the case of 51-year-old Margaret Keane could serve as an authority that a job application must be genuine before a statutory disadvantage can be suffered.
“Ms Keane brought age discrimination claims against 20 recruitment agencies,” said Tim. “An experienced accountant with nine years in a senior management role, in 2007 she applied for 20 positions advertised for recently qualified accountants. When she did not receive any job interviews, Ms Keane began age discrimination proceedings against the recruitment agencies.
“Some agencies settled immediately but 11 appeared before an employment tribunal. Six of the 11 settled during the proceedings but the case was dismissed against the remaining five on the basis that she had no interest in the vacancies, but simply wanted to claim compensation. The tribunal also awarded costs against Ms Keane.”
Tim Jones believes that the case is a victory for common sense and warns local businesses to be aware of other serial litigants trying similar things. “Mr Justice Underhill said his judgement could serve as an authority that an application must be genuine. We would suggest that any recruitment agency or employer who has a case brought against them seeks legal advice from the outset.”
To find out how Tim or his team can help you and your business, call directly on 0845 111 5050 or email tim.jones@higgsandsons.co.uk.
Tim Jones, head of Higgs & Sons’ employment department and one of the region’s leading employment lawyers, says that the case of 51-year-old Margaret Keane could serve as an authority that a job application must be genuine before a statutory disadvantage can be suffered.
“Ms Keane brought age discrimination claims against 20 recruitment agencies,” said Tim. “An experienced accountant with nine years in a senior management role, in 2007 she applied for 20 positions advertised for recently qualified accountants. When she did not receive any job interviews, Ms Keane began age discrimination proceedings against the recruitment agencies.
“Some agencies settled immediately but 11 appeared before an employment tribunal. Six of the 11 settled during the proceedings but the case was dismissed against the remaining five on the basis that she had no interest in the vacancies, but simply wanted to claim compensation. The tribunal also awarded costs against Ms Keane.”
Tim Jones believes that the case is a victory for common sense and warns local businesses to be aware of other serial litigants trying similar things. “Mr Justice Underhill said his judgement could serve as an authority that an application must be genuine. We would suggest that any recruitment agency or employer who has a case brought against them seeks legal advice from the outset.”
To find out how Tim or his team can help you and your business, call directly on 0845 111 5050 or email tim.jones@higgsandsons.co.uk.
Friday, 26 March 2010
Get the most from your employees - latest training event from Higgs & Sons
One of the region’s leading employment law departments is holding a training event for local businesses and HR managers.
Entitled ‘performance management – get the most from your employees’, the event takes place on Wednesday 21 April 2010 starting at 8.30am.
Louise O’Connor, Higgs & Sons’ HR consultant is leading the training event. She said: “This is an ideal opportunity for senior HR professionals and business owners and directors to enhance the efficiency and effectiveness of their workforce, which is in most cases their largest overhead.”
The event takes place at Higgs & Sons’ new £1.5 million headquarters at 3 Waterfront Business Park, Brierley Hill.
To attend, register directly with Louise by calling 0845 1115050 or by email louise.oconnor@higgsandsons.co.uk.
The event costs £40 plus VAT.
For a list of all Higgs & Sons' employment training events, visit -http://www.higgsandsons.co.uk/news--events/hr-training-/annual-training-calendar-20092010.aspx
Entitled ‘performance management – get the most from your employees’, the event takes place on Wednesday 21 April 2010 starting at 8.30am.
Louise O’Connor, Higgs & Sons’ HR consultant is leading the training event. She said: “This is an ideal opportunity for senior HR professionals and business owners and directors to enhance the efficiency and effectiveness of their workforce, which is in most cases their largest overhead.”
The event takes place at Higgs & Sons’ new £1.5 million headquarters at 3 Waterfront Business Park, Brierley Hill.
To attend, register directly with Louise by calling 0845 1115050 or by email louise.oconnor@higgsandsons.co.uk.
The event costs £40 plus VAT.
For a list of all Higgs & Sons' employment training events, visit -http://www.higgsandsons.co.uk/news--events/hr-training-/annual-training-calendar-20092010.aspx
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