In general, the Department for Business, Enterprise and Regulatory Reform introduces legislative changes twice a year - April and October. The idea is to make it easier for employers (and employees) to keep abreast of the changes. The following are effective from April 2008.
We will publicise the changes that become effective in October 2008 in our September edition of HReSource.
APRIL 2008
Corporate Manslaughter and Corporate Homicide Act 2007
6 April 2008
The Act creates a new criminal offence of "corporate manslaughter", which will allow companies to be prosecuted for the new offence of corporate manslaughter (corporate homicide in Scotland), rather than individuals.
Information and Consultation of Employees Regulations 2004
6 April 2008
The regulations, which implement the Information and Consultation Directive (about employees’ rights to be informed and consulted on a regular basis) will be extended to undertakings with 50 or more employees.
Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006
6 April 2008
The regulations, which introduced a statutory requirement on employers to consult with prospective and active members of pension schemes (and their representatives) before making major changes to future pension arrangements, will be extended to cover undertakings with 50 or more employees.
Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2007
6 April 2008
The new regulations will give all agency workers the right to withdraw from services provided by an agency, such as accommodation and transport, without suffering any disadvantage. Agencies will no longer be required to provide written information to workers regarding assignments of less than five days
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In Sinclair v Wandsworth Council the Employment Appeal Tribunal (EAT) said that the Council’s decision to dismiss an employee was unfair because it had failed to apply its own alcohol policy.
What happened?
Mr Sinclair was seen drinking at work in January 2006 and was referred to the Occupational Health Services (OHS) doctor on the understanding, he thought, that any disciplinary action would be put on hold.
He duly saw the OHS doctor in early February who advised him to seek specialist help but Mr Sinclair said he could do it himself. He agreed to allow OHS to contact his GP, after it was made clear to him that he would have to co-operate with OHS if he was to keep his job. He was given a final written warning at a disciplinary hearing on 31 March 2006.
A few weeks later, Mr Sinclair was found to be unfit for work because of drink and was suspended. A further disciplinary hearing was held on 26 May at which he was dismissed. His appeal against dismissal was unsuccessful.
The tribunal said that, in considering whether the dismissal had been fair or not, it had to consider whether the Council has complied with its own internal policies and procedures.
On that basis, it held that the dismissal was unfair because Mr Sinclair had not been given a copy of the alcohol policy until just before the disciplinary hearing in May, and because the Council did not make clear to him that disciplinary action would go ahead if he did not actively seek treatment for his problem.
The Council appealed, arguing that it had a discretion about whether to proceed with disciplinary action under the alcohol policy. It also said that any deficiencies in the disciplinary hearing were resolved at the appeal.
The EAT said that the tribunal was right to ask whether the fairness of the dismissal was undermined by the "fact that no reasonable employer would ordinarily depart from its own published procedures."
Although the EAT accepted that, in principle, an appeal can "cure" earlier deficiencies, it said that the Council had failed to do so in this case, as the appeal officer had not addressed the two issues raised by the tribunal. That Mr Sinclair had not been given the alcohol policy in good time; and that it was not made clear to him what he had to do to for disciplinary action to be suspended.
The dismissal was therefore unfair.
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Employers have to act reasonably when deciding whether to dismiss an employee. In First Leeds v Haigh, the Employment Appeal Tribunal (EAT) said that it was unreasonable for an employer not to ascertain whether their employee was entitled to ill-health retirement before dismissing him.
What happened?
Mr Haigh had a suspected stroke in June and again in October 2005. Under the company’s pension scheme, he was entitled to retire early if he could show he was permanently incapacitated. He was initially placed on a "holding register" (which preserved his continuity of employment but which meant he could not claim sick pay), but was dismissed with effect from February 2006. He appealed that decision and was referred to the occupational health doctor who felt his condition was not permanent.
However, at a final appeal and before the company received medical evidence from his specialist, it told Mr Haigh that he could either continue to receive sick pay until May 2006 and then retire at 60 or be dismissed. Either way he could not apply for ill-health retirement. Mr Haigh refused and was dismissed.
The tribunal said that the decision to dismiss Mr Haigh was driven mainly by a desire to avoid the cost of a claim for ill-health retirement. The company had foisted a solution on Mr Haigh despite the fact that it did not know at the date of his dismissal whether his condition was permanent or not, as it had not waited for all the relevant medical evidence. The dismissal was therefore unfair.
And the EAT agreed, saying that the question for the tribunal was whether it was reasonable for the company to dismiss when and how it did. As a general rule, it said that employers should take reasonable steps to consult employees on long term sick leave before dismissing them.
Specifically, however, if an employer provides an enhanced pension on grounds of ill health (as in this case), they would also be expected to ascertain whether the employee was entitled to the benefit of ill health retirement. In this case, that included referring Mr Haigh to an occupational health doctor for a decision, given that entitlement to the benefit was dependent on a certificate signed by a medical advisor.
The EAT said that employers who offer such enhancements to employees should not be allowed to stop them from claiming it whether "carelessly, arbitrarily or even deliberately. It may be that the employee would have a common law claim against the employer; but that is no substitute for proper consideration of the matter by the employer before dismissal."
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Businesses employing illegal workers face large fines and prison sentences, according to new rules which will become effective at the end of February.
Employers will be fined up to £10,000 for every illegal worker they negligently hire or face up to two years in prison. Any employers found to be breaking the law could lose the right to recruit from outside the European Union.
These changes only apply, however, to employees who start working for you after 29 February 2008. And there is guidance on the Border and Immigration website to help you understand what documents you must ask your prospective employees to produce so that you can be sure they are entitled to work for you legally on or after 29 February 2008.
This is also so that you can establish what is called a "statutory excuse" (or defence) which means you would not be liable to pay the penalty or face a prison sentence.
It explains what steps you should take to satisfy yourself that any documents produced by a prospective employee show their entitlement to work here. It also explains how you should repeat these checks on those who have limits on their time in the UK.
To ensure you do not make any mistakes (the lists of documents that can be produced in various circumstances are very long), you can make use of something called the Employer Checking Service, details of which can also be found on the Border and Immigration website. This helps employers ensure they are making the appropriate checks into an applicant’s work entitlement and to help validate the documents they have provided.
For more information, go to:
www.bia.homeoffice.gov.uk/employers/employersupport/ecs/
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