Are you fit? New Government Fit note scheme

The Government has announced that its new ‘fit note’ system (the ‘Statement of Fitness for Work’) will be effective from 6 April 2010. The new-style statement will replace the current sick note. The new “fit note” will list the common types of changes employers can introduce to assist a return to work: “a phased return to work”, “amended duties”, “altered hours” and “workplace adaptations”.
Read more on this article in our Winter/Spring issue of OrchardNews

Prime target: Bullying in the workplace

The TV and Press are buzzing at the moment with allegations that Gordon Brown has bullied members of staff in Downing Street and Whitehall.

Bullying and harassment in the workplace give rise to a number of legal issues:

• An employer may be liable under the discrimination legislation if it fails to protect its employees and other workers from harassment in the course of their employment.

• The Protection from Harassment Act 1997 may also impose liability on an employer for a course of conduct amounting to harassment by an employee.

• Employers also have a number of implied contractual duties, including a duty to provide a safe and suitable working environment, a duty not to destroy mutual trust and confidence, and a duty to provide redress of grievances.

How should you deal with allegations of bullying and harassment? Read more in our new issue of OrchardNews here

The Equality Bill

Employers need to start preparing for changes to be brought about by the Equality Bill in 2010. The changes will affect all businesses regardless of size and will require them to take positive steps to avoid discrimination in the workplace.
In view of the changes coming in 2010, it has never been a better time for companies to have an equality audit of their business to ensure that they are fully prepared for the changes.

Read the rest of this article in our winter issue of OrchardNews by clicking here

When I’m 65. Retirement Guidelines

As the law currently stands, an employee has no right to work beyond the age of 65 years if his employer has followed the correct notification procedures and no longer wishes him to continue working.

The Equality and Human Rights Commission (EHRC) has proposed the abolition of the current default retirement age of 65.

The Government has brought forward its review of the retirement age of 65 from 2011 to 2010 and it appears likely that the Government will increase the age of retirement in the near future. There is no clear date of when this will be, although the closing date for submissions of evidence for the Government’s research into employers’ aged-based practices was 1 February 2010.

It has also been suggested that the right to request working flexibly should be extended to everyone. EHRC’s research showed that older workers would like to work more flexibly, both in terms of hours of work and location (for example, around 40% would like to stay in their current jobs, but with greater flexibility in hours or days worked).

Read the rest of this article in the Winter 2010 Issue of Orchardnews by clicking here

Contractor or Employee: Can you tell the difference?

It is not uncommon for contractors to quite happily agree that they are self employed and so benefit from preferential tax treatments and flexibility during the course of working and then, once the assignment is terminated, seek to make a claim for unfair dismissal on the basis that they were actually an employee.
It is therefore important that whatever the relationship, it is correctly documented in writing and the parties work in accordance with the contract.

Read the full article at http://www.baileyfields.com/orchardnews

Discrimination

A survey conducted by The Age and Employment Network explores the impact that the recession has had on jobseekers aged over 50. It found that 72% of respondents feel that employersnow see them as “too old”, compared to 63% before the recession. In addition, 45% did not feel that age discrimination legislation had improved their chances of finding work, a 14% increase from the figure prior to the recession.

The Employment Equality (Age) Regulations 2006 prohibit discrimination on grounds of age. To make sure that your business adverting doesn’t discrimate read the article in our newsletter here

Baileyfields join QualitySolicitors

We are delighted to announce that Baileyfields Employment Solicitors has been awarded membership of an exclusive nationwide alliance of high quality solicitor firms, QualitySolicitors.com.

QualitySolicitors is the UK’s first truly national legal brand and promotes the use of real solicitor firms over “call-centre law” provided by supermarkets and banks. It has selected just one hundred of the best solicitor firms nationwide as founder firms and Baileyfields Employment Solicitors are proud to be one of those.

It is rewarding that our high quality of service as employment law specialists has been recognised with our acceptance into the QualitySolicitors organisation. We have always prided ourselves on putting our clients first and this is recognition of that.

QualitySolicitors Chief Executive, Craig Holt, told us, “I am extremely pleased to welcome Baileyfields into our alliance. All our member firms are specifically selected for their exceptional quality and are then subject to continual public feedback”.

Baileyfields Employment Solicitors. The Employment Law specialists

Moving the Goal Posts?

Rather than making redundancies, some employers are choosing to retain staff but employ them on a different basis by cutting their pay, hours or benefits and thereby reduce their financial outlay.
This can avoid the loss of talent resulting from redundancies, together with the cost associated with redundancy payments and the future cost of recruitment when business picks up. A survey by the CBI with Harvey Nash has found that a majority of employers are planning a pay freeze for their next pay review (55%), a recruitment freeze (61%) and changing their organisation of working time in order to cut costs (62%). In contrast, 62% of companies surveyed still had their bonus structures in place, although the average value of almost a quarter of bonus schemes had been reduced. However, where changes to employees’ terms of employment are contemplated, the process is not necessarily straightforward and employers need to be aware of the legal issues.

What are the contractual terms?

To change a contractual term of employment without the consent of the employee would amount to a breach of contract. It is therefore vital to identify the terms of the contract. An employee’s terms and conditions of employment may be express, implied or incorporated from other sources. Express terms can be agreed orally or in writing, and are commonly found in offer letters and written contracts of employment. Terms set out in employee handbooks may be contractual, for example, terms relating to
pay and benefits are more likely to be contractual than working rules or policies. A term may be implied into a contract where for example it is necessary to give the contract business efficacy. Examples of implied terms are the duty of mutual trust and confidence between employer and employee.

How can contractual terms be changed?

General flexibility clauses in a contract, purporting to give the employer the right to change any term
of the contract, are only likely to be useful for implementing minor and/or non-detrimental changes.
The safest way to vary employees’ terms (particularly where it is to the employees’ detriment and
especially where it concerns pay and benefits) is by agreement, preferably in writing, however there
are some situations where even agreed variations may be challenged and advice should be sought. Consultation with the affected employees will be required and if the change is to the employee’s detriment, an employee should be given some consideration for the change.

If an employer changes a term of employment without the employee’s consent there will be a breach of contract. Should the employee continue in employment there is a possibility that they will have impliedly agreed to the variation. However, this is a risky strategy. Where there has been a breach of contract, the employee could:

• work under the new terms under protest and claim for breach of contract or unlawful deductions
from wages arising from the changes; or
• resign and claim constructive unfair dismissal, if the breach is sufficiently fundamental. Most changes to remuneration would be considered fundamental; or
• if appropriate, refuse to work under the new terms (for example, if there is a change to hours of work). If an employee refuses to agree to a change, the employer could terminate the existing contract and offer continued employment under the new terms. Provided the employer has served due notice on the employee (or made a payment in lieu of notice) it will not be liable for a wrongful dismissal claim. The employee may, however, have a claim for unfair dismissal resulting from the termination of the existing contract and advice should be sought before taking this action. Finally, employers should ensure that all variations made to terms and conditions are not discriminatory in any way.

A change of direction

With the new Acas Code of Practice on Disciplinary and Grievance Procedures, employees will no longer be barred from lodging a claim without first raising a grievance, although they will risk having their compensation reduced by up to 25%.

Failure by an employer to follow the Code will not result in a finding of automatic unfair dismissal. However, unreasonable failure by an employer to follow the Code will result in an Employment Tribunal having the power to increase any award by up to 25%.

Both employers and employees must act consistently and deal with disciplinary and grievance issues promptly and without unreasonable delay under the current version of the Code. The procedure envisaged by the Code remains broadly similar to that under the statutory procedures with a written stage, a meeting and an opportunity for the employee to appeal.

Baileyfields are Recruiting

Due to increased demand we are looking to offer our services as employment law specialists to a wider geographical area and as part of this we are looking to recruit self employed solicitors.

If you currently work for a firm and would like more independence, work life balance and a greater share of fees, whilst still retaining the support of an established practice, this opportunity could be for you.

We are looking for experienced employment solicitors who are able to create their own leads and opportunities and in return we are offering a full practice support service. This includes use of our client management systems & remote access to our IT facilities and resources, Indemnity insurance, marketing and administrative support and full use of our meeting facilities.

If you would like further information about working with us, please contact Natalie by email at nkedge@baileyfields.com or call us on 01233 822537. We welcome all applications.

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