Employment Bulletin Mar 04

2003 was another busy year for new employment law and 2004 will be too. To help you keep up to date, this is a summary of the main changes that will affect businesses in Cornwall at the start of 2004:

Discrimination

From December 2003, it has become unlawful to discriminate against an employee on the grounds of their sexual orientation, religion or belief. This adds a further layer to the existing laws preventing discrimination against employees on the grounds of their sex, race or disability. It is anticipated that discrimination on the grounds of age will be outlawed in 2006.

Employers will be held liable not only for behaving in a discriminatory manner themselves (for example in recruitment, dismissal and the way promotions occur) but also for the behaviour of their employees. It is essential therefore that you make your employees aware of their responsibilities (for example by training) and update your policies in this regard. Failure to do so may result in an discrimination case being brought which has potentially unlimited level of compensation.

From 1 October 2004, all businesses should be additionally aware of the need to consider making reasonable adjustments to cater for any potentially disabled employees. From this date, the current exemption under the Disability Discrimination Act 1995 for businesses with less than 15 employees will be removed.

Be aware that mental illnesses such as stress and depression can be disabilities under this Act, if they have a significant and long-term effect on the individual. Steps taken against employees who are off sick with these (or other serious) conditions should therefore be dealt with in a way, which complies with this Act. Further details of this will be supplied at our forthcoming workshop on ‘Sickness at Work’.

National Minimum Wage

The NMW went up to £4.50 (for workers over the age of 22) and £3.80 (for 18 to 21 year olds) on 1 October 2003. It is due to increase again to £4.85 / £4.10 respectively from 1 October 2004. In addition, from 1 April 2004 output workers (who are paid on the basis of the number of pieces they provide) will also be covered by the NMW. We would be happy to provide specific details on how this will work on request.

Agency Workers

For some years now it has been unclear who is deemed to be the ‘employer’ of an individual placed with a business by an employment agency. Often these workers are intended to be only temporary, yet can stay with one business for a long period of time. They often receive their pay through the original agents, but take all their instructions from the place that they are working. In the past, the host business has not considered these workers as their employees and so has not afforded them the usual employment rights.

The recent case of Dacas v Brook Street Bureau has clarified the position by ruling that if an employee has worked for one business for more than one year, an implied contract of employment had arisen. This means that if they are dismissed after that period by the business they could bring unfair dismissal claims. In the light of this case it is essential that disciplinary procedures be followed for action against all workers, whether they are ‘agency temps’ or not.

This raises interesting questions on who has responsibility for agency temps health and safety, statutory sick pay etc. Watch this space!

The new provisions of The Conduct of Employment Agencies and Employment Business Regulations 2004 that are coming into force on 06 April 2004, should go some way towards ironing out these problems. This sets out statutory rules that all private recruitment agencies must follow in relation to the services that they offer and how they place workers with businesses.

Regulation 8 of the new rules provides that where a recruitment agency supplies true temporary workers to a business, the agency is deemed to be the workers employer. Recruitment agencies must therefore make sure they are providing contracts of employment and complying with employers rights. This does not detract from the Duval case above, which applies to employees who are not truly temporary as have worked with a business for over a year.

Awards for Injury to Feelings?

Compensation for unfair dismissal claims are calculated as follows:

1. A basic award is given. This is an amount based on a statutory formula taking into account the persons salary, length of service and age. This is calculated in the same way as a statutory redundancy payment.

2. A compensatory award. This is such amount as the tribunal considers just and equitable in all circumstances having regard to the loss suffered by the employee in consequence of dismissal. This would include a figure for the employee’s actual and future financial loss.

For some time it has been a question for dispute as to whether the compensatory award could also include compensation for injury to feelings, such as distress, humiliation, damage to reputation in the community or to family life.

Since last summer, it has been the case that injury to feelings could not be compensated for. The leading decision in this regard was however overturned in February of this year by the Court of Appeal who have now stated that this can be recoverable. For the most serious emotional damage this could be as much as £25,000.

This decision will be reconsidered by the House of Lords in due course, but in the interim be aware that feelings do count !

Data protection

The Information Commissioner published the last two parts of the Employment Practices Data Protection Code of Practice “Monitoring at Work” in August 2003 and “Information about Worker’s Health” in December 2003. These codes will now be referred to in employment tribunals and so employers should be aware of and implement them wherever possible. The introduction of a policy for you and your staff to follow is advisable.

If you have any particular information that you are concerned about releasing, do seek advice. The recent case of Durant v FSA significantly narrowed the scope of individual’s rights to access personal data and this should be considered in conjunction with the above codes.

True Tales from the Tribunal

In the recent case of Murray v Newham Citizens Advice Bureau an employer was held to have discriminated against a disabled applicant when they refused to give him a job on the basis that he was a paranoid schizophrenic. He disclosed in the interview that he had a previous conviction relating to a stabbing incident that had occurred when his condition was particularly severe. The employer had simply reacted to this fact and said no without considering sufficient documents or carrying out adequate enquires to justify its decision to reject the applicant.

To Watch out for…

1 October 2004 is the date that the new Disciplinary and Grievance procedure rules are coming into force. After that date, failure to follow these rules can result in unfair dismissal claims that you cannot defend as well as an increase in the award of compensation. This will apply to all employers irrespective of size.

We will be running a series of workshops on the new changes in August and September of 2004 to help you put the changes in to place…so please seek help to ensure you are not caught out.

For further information contact
martin.follett@follettstock.co.uk or verity.slater@follettstock.co.uk