Are you fit? Government Fit note scheme

The Government’fit note’ system (the ‘Statement of Fitness for Work’) has been effective since 6th April 2010. The statement replaced the old sick note. The “fit note” lists 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”.

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.

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.expresslegalnetwork.co.uk/orchardnews

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.

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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