Facts of the Case

The Claimant was dismissed on 15^th June 2009. The Claimant suffered from depression and instructed a solicitor the following day to deal with the internal appeal and some mention was made at her conference with him of a 3 month time limit. There was evidence that a time limit had been discussed at an initial conference, but not at a further meeting.  The Claim was presented out of time on 7^th October.

At an initial hearing the tribunal decided it was not reasonably practicable for the Claimant to have presented the ET1 in time due to her depressive illness and that the ET1 had been presented within a reasonable time having regard to P’s illness, also concluding in relation to the solicitors: “There is no suggestion of any wrong advice”.

Judgment

The EAT reversed the tribunal’s decision.  Holding that there are 2 questions to be answered:

1. was it reasonably practicable to present the claim within the 3 month time limit?
2. If not, was it presented within a reasonable time thereafter?

The EAT concluded that the decision regarding P’s health was surprising one given that no medical evidence was presented.  The EAT further held that the evidence presented to the trhe tribunal did not that the illness or medication was such for it producing such a debillitating effect as to prevent the Claimant from taking steps to instruct her solicitor to present a claim within the 3 month period had she been made aware of that. The Claimant had given instructions in relation to her appeal, and attended meetings with her solicitor, attended the appeal, and dealt with correspondence from her solicitor, which were all indicative of being able to deal with the protection of her employment rights.

This case follows a long line of authorities where the EAT have take a restrictive approach to determining what is and isn’t reasonably practicable.  In particular, in Dedman v British Building and Engineering Appliances Ltd [1974] 1 WLR 171; Marks & Spencers Plc v Williams-Ryan [2005] ICR 1293.   In Dedman  the EAT held that an employee who takes advice and is given incorrect or inadequate advice cannot rely on that fact to excuse a failure to bring a claim in time.  The fault on the advisor’s part is attributed to the employee

http://www.telegraph.co.uk/news/newstopics/politics/8101535/Lord-Young-new-enterprise-czar-sparks-row-over-small-business-red-tape.html

This has sparked a predictably robust response from the unions.  Len MccClusky of the Unite union was reported as saying,

“This is turning the workplace clock back to the 1980s with a vengeance. Thatcher’s heirs are again putting business ahead of ordinary people’s interests”

If brought forward by the government it is certainly a measure that would be fiercely resisted by the unions.  For now it’s a case of watch this space….

In this case an employers HR department consisted of two employees an HR manager and HR executive.  The HR manager had previously carried out the executive’s duties.  The employer did not include the HR executive in the selection pool.

 The EAT held that when deciding whether or not a more junior employee should be included in a redundancy pool (with a view to potentially “bumping” the employee holding the redundant position into the more junior employee’s position), the correct approach is to follow the guidelines laid down by the EAT previously in the case of Lionel Leventhal Ltd v North UKEAT/0265/04.  In particular the employer should have regard to: 

1. Whether or not there is a vacancy.
2. How different the two jobs are.
3. The difference in remuneration between them.
4. The relative length of service of the two employees.
5. The qualifications of the employee in danger of redundancy.
6. Any other factors applying to the particular case

Employers with 50 or more employees are required to file their forms online. Subject to the number of forms an employer fails to submit online means they could face a penalty of up to £3,000.

If an employer has less than 50 employees, then it will not be compulsory to file the forms online until 6 April 2011.  HMRC is however advising such employers to file their End of Years returns online so that they can get used to the system that will become compulsary in 2011. 

Filing online before the 2011 deadline will give employers plenty of time to learn how the process works and to get used to any new software or business processes. As filing online will become compulsary, employers and payroll managers may need to examine their payroll practices and systems to prepare for the changes says the ICAEW.

Anita Monteith, ICAEW’s Tax Faculty Technical Manager, said: “To avoid penalties employers need to ensure they do not send HMRC forms on paper when they should be filed online, or send two versions of the same form. Online filing is quick, secure and convenient, and can cut down on errors and the delays they can cause.”

Posted by Anil Champaneri

Nottingham City Council will be the first to impose a £250-a-year parking levy from 2012 on employers with more than 11 members of staff.

The newspaper’s investigation found that a number of other councils are considering introducing the charge as a way to raise funds, especially budgets are being cuts. The scheme was initially introduced as a means of reducing congestion and carbon emissions.

The councils that were found to be considering the levy include Leeds, York, Devon, Hampshire, Bournemouth, South Somerset and Wiltshire.

Posted by Anil Champaneri

The survey was carried out by Medicash, a healthcare cashplan provider, of 3,000 workers. In the survey, 20% of men admitted to taking two sick days in the past month because of stress.

The survey also showed that twice as many men as women drink because of work related stress. One in five men said they needed to drink after work most days.

31% of women and 24% of men said they often feel stressed. Women felt dealing with difficult customers as the most common cause of their stress whereas men felt the most likely cause for their stress was a heavy workload. Outside of work, both men and women claimed rudeness and bad manners as the reasons most likely to get them worked up.   

In respect of syptoms of stress, headaches were cited as number one for both sexes. 69% of women suffered from headaches compared to 45% of men. 57% of women and 40% of men also reported problems with sleeping.   

Medicash chief executive Sue Weir said: “Small amounts of pressure at work can enhance our performance but if that pressure becomes unremitting it can seriously affect our health. Regularly feeling stressed can lead to sickness, long-term absenteeism and even a dependence on alcohol or drugs. Incorporating healthy eating and exercise into your daily routine and talking to someone about how you feel can help towards counteracting the effects of stress.”

The top five triggers for stress revealed by the survey were as follows:

For women:

1.      Dealing with difficult clients/customers

2.      Heavy workload                 

3.      Computer freezing in the middle of an important job

4.      Boss demanding too much extra work

5.      Computer taking too long to get going 
 

For men:

1.      Heavy workload

2.      Boss demanding too much extra work

3.      Dealing with difficult clients/customers

4.      Computer freezing in the middle of an important job

5.      Boss asking for work to be done which is outside job description

Sue Weir added: “Workplace stress can be damaging on any level, affecting both the employee and employer. Bosses have a duty of care and responsibility to look after their workforce and have systems in place to address stress at work.

“Encouraging a work/life balance, having open channels of communication between staff and managers, and providing access to counselling services are some of the things employers can do to combat stress.”

Posted by Anil Champaneri

Cranfield University has conducted research which has shown that women make up only 12.2% of directors of the FTSE 100 companies in 2009.

Female directors in FTSE 250 companies is even lower at 7.3%. Most surprising is that nearly half of those companies do not have any women in the boardroom. 

Professor Laura Tyson prepared a report in this area in 2003 and Lord Mervyn Davies, who is the former chairman of Standard Chartered PLC and a former Government minister, has been asked to build on that work by:

• identifying the obstacles to women becoming directors of listed company boards; and
• making proposals on what action Government and business should take to improve the position.

Lord Davies is to present his recommendations by the end of the year.

Business Minister Edward Davey said: “Diversity on boards is a very important issue and something that the Coalition Government is very committed to. This is why the Government wants to lead by example on this issue, announcing its aim to place women in at least half of all open board level roles by the end of the Parliament.

“We want to work with business leaders to remove the obstacles to UK plc benefiting from the skills and experience of women. This is not just about gender equality, but about improving performance and ultimately productivity too.

“Mervyn is a true champion of this cause and worked hard to emphasise the importance of diversity while he was at Standard Chartered. I know that he will work with the same determination in this new role and he has the profile and standing to drive forward this important area of work.”

Equalities Minister Lynne Featherstone said: “Equality is as good for businesses as it is for women – diverse organisations reflect their customers better, understand them better and offer better products and services as a result. It is essential that we don’t miss out on the talent and skills of half our population if Britain is going to compete in a fast-moving global economy. We need to do more to identify and tear down the barriers that prevent women rising to the top in business, and I look forward to working with Lord Davies to make this happen.”

Lord Davies of Abersoch said:  “While it is essential that the boards of UK companies are meritocratic, the fact that there are only 131 female directors in FTSE 100 companies means that we cannot be using all the skills and talents that make our workforce so competitive.

“I am looking forward to leading this work and hearing the views of those with an interest in this area. I hope to help more women to rise to the top of their professions and become our business leaders of the future.” 

At first instance, the Employment Tribunal judge had decided that the respondent’s letter of 28^th November 2008 agreeing to absolve the claimant of his duty to work his notice period (effective as at the date of the letter), was sufficient to effect a variation of the EDT from the end of the notice period (1^st December 2008) to the date of the letter, thereby rendering the claimant’s claim on 28^th February 2008 to be out of time. 

Whilst accepting that the EDT can be varied by agreement (Palfry v Transco [2004] IRLR 916), the Appeal Tribunal applied the case of Lees v Greaves [1974] 2 All ER 393, a case which confirms that the mere fact of the claimant not being required to work is insufficient to effect a variation of the EDT.   The fact that the respondent had referred in its letter to the claimant of 28^th November 2008, to the notice period ending on 1^st December 2008, also assisted the Appeal Tribunal in coming to it’s decision that the EDT had not been varied.

This change is set to come about under the new Equality Act. The initial implementation of the main provisions of the Equality Act is set to go ahead on 1 October 2010.

Home Secretary and Minister for Women Theresa May said: “As a Government we are taking action to tackle discrimination faced by women in all workplaces and at all levels, from City bankers to hospital cleaners.

“From October 2010 the Equality Act will make pay ‘gagging’ clauses unenforceable so that companies will no longer be able to stop employees comparing their salaries with colleagues. Bringing an end to the culture of pay secrecy will make it easier for women to find out if they are being paid less than men.”

As an employer, have you incorporated such clauses in your employee’s contracts of employment? Is this change in legislation only going to have a real impact for City workers?