Published on 1st September 2008
After a wet, grey summer, we’ve got a raft of employment law to sift through – and a few cases that give us an interesting insight into how it is being implemented. In a new, regular feature in Ceridian Connection, we take a look at the latest Employment Law issues, and how they might affect your business.
The Department for Innovation, Universities and Skills (catchy title) has launched a consultation on a proposed new right for employees to request time off work for training.
This means that an employee can ask for leave for training – on condition that the training helps improve business performance and productivity – and you must consider each request seriously.
The proposed process will be similar to the current right to request flexible working. Employers who have fallen foul of this process have found that discrimination claims have arisen from refusals – the same could be true of the right to request training.
Much has been made this summer of Harriet Harman’s plans to make it legal for employers to use positive discrimination to hire more candidates who are women or from ethnic minorities.
The brouhaha in the press has been mostly unjustified – Mrs Harman specified that there will be no obligation on employers to use positive discrimination. However, the most contentious part of the proposal is that it would force employers to publish details of the difference in pay between male and female colleagues.
A Muslim woman was awarded £4000 for injury to feelings after she was refused a job as a hairdresser because she wore a headscarf. Having previously failed in her claim for direct discrimination, the Tribunal then returned in her favour for indirect discrimination.
What is of particular interest to employers around the UK is that this case gives us an insight into how Tribunals are treating the issue of the employers’ justification defence where there is found to be indirect discrimination. In this case, the owner expected her staff to reflect a ‘funky, urban’ image. The defence that hair stylists would be expected to display their own hair was not considered justification enough for turning down the woman’s application.
The case of Harlow v Artemis International Corporation is of particular concern to employers. Artemis had believed that its enhanced redundancy payment was discretionary as it was not in the contractual section of its staff handbook.
However, the claimant believed she was entitled to at least £60,000 under the enhanced policy – and won. The Court concluded that, as the Handbook was available on the company intranet – in the same folder as all the other policies – the enhanced sum was therefore contractual. Additionally, that section was named ‘employee benefits and rights’. Indeed, the policy had been applied in previous redundancy situations.
In a recent case, two directors lost a case against their previous employer, who had forced gardening leave on them after they resigned intending to join a competitor, despite there being no contractual right to do so.
The employer had placed them on gardening leave, and the directors – believing there had been a breach of contract – started work immediately with the competitor. The High Court ruled that there was strong evidence of an intention to misappropriate confidential information and indeed, there was evidence this had already taken place.
In this case, gardening leave – even non-contractual – can be insisted upon.
The case of Burrow Down Support Services v Rossiter has shed some interesting light on the National Minimum Wage. The employer claimed that the employee was not entitled to the national minimum wage for every hour of the shift – as he was asleep for part of it. The company provided facilities for sleeping.
The Tribunal ruled that the employee was actually at work for the whole shift – even while asleep – and was therefore entitled to the National Minimum Wage.
Here at Connection, we love to hear what our friends ‘across the pond’ are up to. One man has particularly grabbed our attention with a zeal for accuracy in spelling and grammar that we can only admire.
Jeff Deck is the leader of TEAL, the Typo Eradication Advancement League, and has set out on a year-long journey across America with the aim of making the US a ‘safer place for spelling’. Replete with supplies of erasers, chalk and white-out fluid, Jeff has raised the ire of many shopkeepers. He was abused for correcting ‘beefstake tomatoes’, and thrown out of a bar for correcting a sign that read “cake’s”. A shopkeeper was less than enthusiastic about having to change his shop sign which said “groccerry store”.
Never mind Jeff, at least Connection appreciates you!
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