News

Employment Law London provides services to both employees and employers. Employees and employers are protected by and subject to employment legislation.

Increase of National Minimum Wage October 2013

The latest increase of national minimum wage rates for 2012/2013 came into force in October 2013; it went up to £6.31 per hour. The government has been encouraging companies to be aware of these changes to ensure that they are paying the minimum wage. In 2012, there were 500 employment tribunals cases related to minimum wage issues.

Above changes that came into place are different dependent on your age. Below are the summaries:

Age over 21: £6.31 per hour which is a 12p increase since 2012.

Age between 18 and 20: £5.03 an hour which is a 5p increase since 2012.

Age between 16 and 17: £3.72 an hour which is a 4p increase.

Apprentices: £2.68 an hour which is a 3p increase.

You will be a worker who is entitled to the National Minimum Wage if:

1)      You have a contract of employment

2)      You have a contract to perform work or provide services personally for your employer

3)      You are not self-employed under the contract

Please note the contract does not have to be in writing, it can be oral or implied.

If you are not getting the correct amount of minimum wage, you should point this out to your employer and report them even you are employed by a small company. These restrictions do apply to all sizes of companies.

 

Employment: compliance of discipline and grievance procedures and assessment of pension loss,

19 May 2013

Lund v St Edmund’s School                   Employment Appeal Tribunal

Statutory discipline and grievance procedures – ACAS Code – unfair dismissal – pension loss – teacher

The Facts

Mr Lund brought a claim for unfair dismissal against his former employer St Edmund’s School. He had been dissatisfied with the equipment used in his teaching and took some days off due to stress. On his return he was suspended on full pay and underwent a consultation from a psychiatrist. There was no underlying medical problem found, but Mr Lund was dismissed due to his relations with other employees being affected, and ‘an irreparable breakdown in the employment relationship’.

The tribunal decided that the dismissal was unfair: Mr Lund had no warning and no opportunity to appeal and there had been no attempt to deal with Mr Lund’s concerns before relationships with colleagues and the school broke down. However, Mr Lund had also through his own behaviour contributed substantially to his own dismissal, and so the tribunal reduced the basic and compensatory awards by 65%.

Appeal

Mr Lund then appealed against the level of compensation awarded by the tribunal. In the case of an unfair dismissal governed by the Trade Union and Labour Relations (Consolidation) Act 1992, a tribunal has the power to increase the award for compensation. The tribunal made a brief reference to this code of practice and decided it did not apply because firstly, Mr Lund had contributed to the dismissal and secondly, the dismissal was not caused by Mr Lund’s conduct directly but by the effects of his conduct (the breakdown in trust and confidence). This judgement was in error, as whether or not he contributed to the dismissal Mr Lund should not be denied compensation for the school’s failure to act in accordance with fair procedure, a failure which was independent of his actions. As for the second point, while the judgement that the dismissal was due to the effects of Mr Lund’s conduct, rather than his direct behaviour is an ambiguous distinction, this does not change the fact that the code applies to situations where a disciplinary procedure has or should have been invoked – regardless of the outcome. The tribunal now has an obligation to consider the merits of raising the award.

Mr Lund also appealed against the calculation of his pension loss. The tribunal awarded a sum based on the school’s contributions to his pension for one year’s worth of loss. The methodology used by the tribunal was flawed and failed to consider the chances of Mr Lund finding future employment that would include a pension to compensate for the one he lost. There was no explanation for limiting the loss of pension to one year from the date of loss, as he should be entitled to compensation for the pension he would have received had he not been dismissed, up to retirement age.

The reasoning of the original tribunal was flawed, as clearly if you have two self contained businesses, the sale of one will not affect the employees of the other. The claimants’ dismissal was a result of the decision to shut down that business, notwithstanding the earlier intention to transfer some of them. It was held that the TUPE laws come into effect once the transfer has been completed, which would make the breach or compliance with the rules final.

Remarks

Once an ex-employee has been penalised for causing the dismissal, as here with the 65% reduction, he cannot then be punished again by omitting to raise the compensation for the employer’s failure to comply with the law and relevant codes of practice. The tribunal must consider an uplift in compensation.

The tribunal erred in assuming that the method used to assess the pension payments was appropriate simply because Mr Lund suggested it. The job of the tribunal here was to decide on the most appropriate assessment which it failed to do. The tribunal will now face the (original) task of judging the chances of the ex-employee finding an equivalent pension and whether to take a ‘simplified approach’ or a ‘substantial loss approach’ according to the guidance laid out for employment tribunals, as this is the method for awarding pension loss payments.

The meaning of “affected employees” under TUPE,    I Lab Facilities Ltd v Metcalfe & Others  EAT

11 May 2013

The obligation to inform and consult employees under TUPE laws only stands in respect to a transfer that actually proceeds.

Facts

The claimants were employed by a company in the film and television industry called I Lab UK. This company had merged a few years before with another called RKT, specialising in post production work. Aside from pooling certain resources these businesses remained separate, with different staff, locations and functions. The claimants were part of the post production team. The company got into financial difficulty and went into liquidation. After some uncertainty the original business was sold to I Lab Facilities Ltd (in the same ownership) and the post production business was closed down.

Initially the plan had been that the successor company would take on some of the post production business too, and the employees were told of this arrangement. However in the space of a few weeks the situation changed and the eventual decision was that only the original business would be transferred.

The claimants argued that there had been a breach of the obligation to inform and consult “affected employees” of the transfer under regulation 13 of TUPE law. The Tribunal held that the employees were “clearly affected by the relevant transfer by being effectively excluded from it, having been informed that they would be a part of it” and duly awarded compensation. I Lab Facilities (as the only solvent business in question) then appealed on the basis that the claimants were employees in the business that was shut down, not transferred, and so they were not affected by the TUPE laws.

Held

The reasoning of the original tribunal was flawed, as clearly if you have two self contained businesses, the sale of one will not affect the employees of the other. The claimants’ dismissal was a result of the decision to shut down that business, notwithstanding the earlier intention to transfer some of them. It was held that the TUPE laws come into effect once the transfer has been completed, which would make the breach or compliance with the rules final.

Remarks

This case is useful in defining what TUPE laws mean by an “affected employee”. The Appeal Tribunal differentiates between the loss of employment directly linked to the sale of the business and the indirect effect of selling just one part. If TUPE is to be used then the direct cause of the loss of employment must be carefully analysed.

In this instance, statutory obligations come into effect after the completion of the fact (here, the sale of the business) as only then can something be objectively judged to have happened or not and a breach can be properly identified.

New Employment Guidelines: Belief Rights in the Workplace

Following the decisions of the European Court of Human Rights in January 2013 on religious rights in the workplace, new guidelines have been published expanding on the implications for employers and employees.

Previously, the generally held view was that a practice was only protected by your human rights if it was required by your particular religion or belief. The new judgment confirms that a practice motivated, influenced or inspired by, and which is sufficiently linked to, the religion or belief will be protected regardless of whether it is a mandatory requirement.

The four combined cases were brought by Christians, but the judgment affects workplace policies towards those with any religion or none. The guidelines are specific that the “law protects adherents to all the generally recognised religions, as well as druids and pagans, for example. It also protects people without any religion or belief, including humanists and atheists.”

A document for employers has been published, detailing the need to accommodate genuine beliefs in the work environment. Official advice is to consider all reasonable requests regarding religious, or belief-based, practices, whether this be a manifestation of belief (such as a piece of clothing or jewellery), time off for specific purposes, or adapting duties (such as avoiding contact with alcohol or meat).



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