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Employment Law Update

Where an employer’s client refuses to have a particular employee working for them, a dismissal is seen as fait, but only on the premise that the employer has done all that they reasonably can to avoid or mitigate the injustice brought about by the situation. A case, which has recently gripped the headlines, illustrates this clearly.

An employee, who was working under contract for a local authority as a school bus driver, had been suspended after allegations of sexual abuse. A CRB check was initially carried out, but these allegations followed were made after employment. The employee protested his innocence and the police did not prosecute him. However, the South Tyneside Safeguarding Children Board had reviewed the situation and decided that abuse had taken place and that the employee should no longer work with children. The employee was then dismissed after his employer’s failed attempt to get the council to reconsider their decision.

The Employment Tribunal decided that, unlike the employer, the client is under no obligation to behave fairly towards the employee, and "...if the employer has done everything that he reasonably can to avoid or mitigate the injustice brought about by the stance of the client – most obviously, by trying to get the client to change his mind and, if that is impossible, by trying to find alternative work for the employee – but has failed, any eventual dismissal will be fair...”

Information Commissioner - new powers to fine

From April 2010, employers can now be expected to pay a fine for breaching any of the eight data protection principles, which anyone that works with personal information must adhere to. These fines will be issued by the Information Commissioner (previously known as the Data Protection Commissioner). The ‘principles’ include the requirement that personal information is fairly and lawfully processed; processed for limited purposes; adequate, relevant and not excessive; accurate and up to date; not kept for longer than is necessary; and kept securely.

The size and limit of the fines is yet to be finalised, but we’ll keep you informed.

Mothers may be able to transfer their maternity pay to fathers by April 2010

New proposals outlined by the Government could soon mean that mothers will be able to transfer part of their maternity leave entitlement to the father. Mothers with maternity leave remaining in the second six months of a child's life will be able to transfer up to six months to the father.  Statutory Maternity Pay (SMP) will be paid for up to three months of that leave, on the condition that the leave is taken during the mother's 39-week maternity pay period.

These new regulations are planned in place by April 2010.  To allow time for employers to adjust to the measures, it’s expected that the regulations will apply to parents of children due on or after 3 April 2011.

UK retirement age of 65 is lawful

The High court has confirmed that employers can lawfully retire employees at the age of 65 (on the condition they follow the correct notification procedures).  Age UK’s action (better known as the ‘Heyday’ action) against the Government, which had made its way across Europe, has finally come to the end of the road. It wasn’t a complete failure for Age UK, as the Government has agreed to bring forward its review of the retirement age from 2011 to 2010.

  • 1st November 2009
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