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@expresslegalnetwork.co.uk or call us on 01233 822537. We welcome all applications.

Stress at Work: Healthy Business

In 2006, 175 million working days were lost to illness. The annual economic cost of sickness absence and unemployment due to ill-health are estimated to be over £100 billion (greater than the current annual budget for the NHS and equivalent to Portugal’s GDP).

The health of the working age population has been reviewed and Dame Carol Black’s report ‘Working for a healthier tomorrow’ was published on 17 March 2008.

While early, regular and sensitive contact with employees during sickness absences can facilitate an early return, the review revealed that 40% of organisations have no sickness-absence management policy.

The research found that health and well-being programmes produced economic benefits (beyond avoiding or reducing the costs of absence or poor performance) across all sectors and all sizes of business.

The report notes that by complying with health and safety and employment law, providing good health and safety management and reducing exposure to risk, employers minimise the likelihood of workers being made ill by their jobs.

It suggests that both employers and workers must change their perception of health and well-being and to invest resources and change their behaviour to produce modern workplaces that ensure good health and productivity.

The report suggests that, irrespective of sector or size, employers need to create empowering and rewarding working environments for all their employees.
In particular:

When designing jobs and developing management arrangements, employers need to think about how staff will feel valued and what will motivate them to deliver a quality product or service without undue stress that might lead to poor health. The concept of “good work” is fundamental to good health and productivity.

The role of the line manager is key. Good line management contributes to good health and improved performance. Line managers also have a role in identifying and supporting people with health conditions to remain at work, adjusting responsibilities where necessary.

Consider the following:

Do you have any employees that regularly work more than 48 hours per week?

Do you currently have any employees that are absent due to sickness caused by work related stress?

Do you have the following policies and are they up to date:  Health and Safety, Capability, Bullying and Harassment, Stress, Grievance?

Do all employees have inductions and job descriptions so that they are aware of their roles and responsibilities?

Are employees consulted about changes within the organisation?

Redundancy: How to ensure a fair selection

A selection criteria is necessary in a redundancy situation when an employer plans to make more than one employee redundant and the employees chosen have the same job or interchangeable jobs, or the groups of employees perform identical work.

Therefore the very first thing that the employer must do is make a clear statement identifying the pool of employees from which the redundancies are to be sought, for example the marketing staff at head office or the fitters at the Ashford plant.

The selection criteria used by the employer must be carefully and exactly defined so that they can be fairly and consistently applied to each employee.

Selection criteria for redundancy may include some kind of measure of skills, qualifications, aptitude or performance.

When devising a selection criteria an employer should be cautious if s/he intends to include a length of service criteria or “last in first out” as this may expose the employer to an age discrimination claim.

There is also the risk of it being indirectly discriminatory against female employees because they tend to have shorter service due to, for example, breaks to have children.

If attendance is used as a criteria this could in particular circumstances trigger a disability discrimination claim. Care should also be taken to ensure that absence due to pregnancy-related illness and absence on maternity or other family-friendly leave is discounted.

Using the correct selection criteria can be the solution to keeping the best performing employees and making the poor performers redundant. It is likely that the pool of employees will probably contain both good and poor performers, hence if the employer’s aim is to target under performing employees the performance-related criteria should be weighted by a percentage factor.

Advertising: Age Discrimination

Employers should consider whether it is necessary to specify in an advert that a certain level of experience is required. A tribunal has found that an advert stating that a teaching vacancy “would suit candidates in the first five years of their career” amounted to indirect age discrimination.
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