13 November 2006

NEWS

New Plans to Close Floodgates on Tribunal Claims

In 2004, the Government introduced measures attempting to improve the tribunal system.  Two years on, the DTI may be gearing up to change the rules yet again. Read more

EU Ministers Hit Stalemate Again Over Working Time Opt-Out

Talks on ending the opt-out to the 48 hour week have collapsed again as EU ministers could not reach an agreement. Read more

Report Shows Number of Female Directors Decreasing

A report recently published by Cranfield School of Management shows that the proportion of female directors has decreased to 10% of the total number of directorships available. Read more

Management Jargon Makes Staff Feel Isolated

More than half of UK employees (54%) have given management jargon, such as "think outside the box" and "the helicopter view", the 'thumbs down', saying it is a problem in their workplace. Read more

Carers to Benefit from Right to Request Flexible Working

Carers across the UK are set to benefit from the right to request flexible working. Read more

Immigration Minister Introduces Changes to Highly Skilled Migrant Programme

Highly skilled migrant workers applying to come to the UK will now be assessed against an amended points based immigration system. Read more

LEGISLATION

There is no legislation to report this week.

CASES

EAT Clarifies Scope of Protective Awards

The EAT has confirmed that employees may not rely on a protective award obtained by a Trade Union where those employees are not of a description in respect of which the Trade Union is recognised by their employer. Read more

No Free-Standing Claim for Breach of the Statutory Procedures

The EAT has confirmed that there is no free-standing complaint of failing to follow the statutory procedures. Read more

Beware of Reliance on Detailed Disciplinary and Dismissal Procedures

An employee's dismissal was automatically unfair because the employer refused to hear the employee's appeal as he had not complied with the company's appeal procedure. Read more

Fosroc International Request Leave for Appeal

In our HR Briefing of 16 October 2006, we reported the case of Christopher Keeley v Fosroc International Limited.  Fosroc International has now lodged a request for leave to appeal to the House of Lords. Read more

NEWS

New Plans to Close Floodgates on Tribunal Claims

In 2004, the Government introduced measures attempting to improve the tribunal system.  Two years on, the DTI may be gearing up to change the rules yet again.

The measures that were introduced in 2004 were intended to reduce the burden on employers due to unfounded or vexatious claims. Emphasis was placed on the use of internal company grievance procedures and tribunals were given wider powers to strike out weak claims and punish vexatious claimants with costs orders.  Unfortunately, the measures have arguably had little effect.  Last year, more than 115,000 employment tribunal claims were lodged, 25% up on the previous year.  Alistair Darling, the trade and industry secretary, said: "We do need to ask ourselves, and not be too proud about this, did we get it right first time?"

Mr Darling has ordered the DTI to investigate ways that the current rules can be simplified to ease the burden on employers. The Trades Union Congress has expressed "real concern" that the current process is still too complex and that there is room for improvement. 

In our HR Briefing of 30 October 2006, we reported the call by the Acas chair for disputes to be resolved earlier through workplace mediation.  It remains to be seen what measures the DTI will recommend be introduced to reform the tribunals system.  What is clear, however, is that any measure that works to reduce the number of claims being brought to the tribunals can only be good news for businesses.  

(Financial Times, 06 November 2006) Back

EU Ministers Hit Stalemate Again Over Working Time Opt-Out

Talks on ending the opt-out to the 48 hour week have collapsed again as EU ministers could not reach an agreement.

In our HR Briefing of 30 October 2006, we reported that EU employment ministers were again in discussions regarding the opt-out.  France led a blocking minority of five member states, including Spain, in an attempt to challenge the right of UK employees to opt-out of the maximum 48 hour working week. 

France believes that the UK receives an unfair competitive advantage as a result of the opt-out (an estimated 1.7 million UK employees work more than 48 hours a week). However, the talks in Brussels collapsed after France was unable to persuade the ministers to agree that the UK's opt-out should be scrapped.

Trade unions see the collapse of the talks as a missed opportunity to provide added protection for employees, which they fear could be exploited as a result of the opt-out.  Brendan Barber, TUC General Secretary said, "This was a missed opportunity to ensure that UK workers are protected against the dangers of overwork".

The retention of the opt-out is welcome news to businesses, which believe that the opt-out is essential to maintain economic competitiveness. John Cridland, deputy Director General of CBI, said, "Those who have argued for the ending of the opt-out simply do not understand the realities of the modern workplace. The ability for individuals to opt-out from the 48 hour working week is a vital part of the UK's flexible labour market".

(Financial Times, 08 November 2006) Back

Report Shows Number of Female Directors Decreasing

A report recently published by Cranfield School of Management shows that the proportion of female directors has decreased to 10% of the total number of directorships available.

The 2006 Female FTSE report shows that the number of female directors is now 117 – a decrease from the 2005 figure.  The figures show that only 53% of the FTSE 100 companies have a woman on the Board.  The companies with the most women on the Board include Astra-Zeneca, British Airways and Lloyds TSB.

Val Singh, co-author of the report commented: "The research highlights a glass door to the executive boardroom, with a significant lack of women in the senior executive committee".

Deputy minister for women, Meg Munn, said, "Increasing the number of women at director level can extend a company’s portfolio of skills, provide role models for younger, high-potential women and place companies closer to their customer base".  

(Personnel Today, 09 November 2006) Back

Management Jargon Makes Staff Feel Isolated

More than half of UK employees (54%) have given management jargon, such as "think outside the box" and "the helicopter view", the 'thumbs down', saying it is a problem in their workplace.

According to the poll - conducted by YouGov to mark the 15th anniversary of Investors in People – employees have a low opinion of colleagues who use management jargon. Over a third (39%) of those surveyed think it betrays a lack of confidence and almost one in five (18%) think people who use it are untrustworthy or trying to cover something up. 

More worryingly, the research suggests that jargon can create a barrier between managers and their teams.  Demonstrating the potential 'desk divide', over half (55%) of senior managers think jargon is harmless, whilst four in ten (42%) employees think that it creates misunderstanding about roles and responsibilities.  Over a third of employees (37%) say it results in mistrust in the workplace and makes people feel inadequate.

Almost two thirds of employees (60%) would prefer no jargon at all at work, yet, with over a third (39%) saying that its use is on the rise, the problem looks set to grow if left unchecked.

Commenting on the findings, released on the first day of Investors in People Week (6-10 November), Nicola Clark, Director at Investors in People (UK) said:

"The research gives bosses an invaluable insight into the impact of management jargon on the workplace.  Whilst it can be a useful shorthand at times, managers need to be more alert to when and how they use it.  Cutting jargon out of everyday communication is clearly a challenge, with almost half (48%) of employees that use jargon admitting to using it without thinking. However, as our research shows, if used inappropriately, jargon can be an obstacle to understanding, which ultimately can impact on an individual's performance and an organisation's productivity". 

(Investors in People Press Release, 06 November 2006) Back

Carers to Benefit from Right to Request Flexible Working

Carers across the UK are set to benefit from the right to request flexible working.

After consulting various carers groups and business organisations, Employment Relations Minister Jim Fitzpatrick has announced how carers will be defined for the purposes of the new right to request flexible working.

Jim Fitzpatrick said:

"The Government understands how difficult it can be for people to balance their work with caring for someone who is sick or disabled. We want to make sure that as many carers as possible have the right to request flexible working while at the same time not placing an unnecessary burden on business.

"We consulted with business, unions and carers' groups about the definition of which carers will be covered by the legislation. We have decided to go with the option that best balances the views of these groups and will cover around 80% of carers."

The definition of "carer" will be an employee who is or expects to be caring for an adult who:

• is married to, or the partner or civil partner of the employee; or
• is a near relative of the employee; or
• falls into neither category but lives at the same address as the employee.

The "near relative" definition includes parents, parents-in-law, adult child, adopted adult child, siblings (including those who are in-laws), uncles, aunts or grandparents and step-relatives.

(DTI Press Release, 9 November 2006) Back

Immigration Minister Introduces Changes to Highly Skilled Migrant Programme

Highly skilled migrant workers applying to come to the UK will now be assessed against an amended points based immigration system.

As part of the Government's five year plan for immigration, immigrants applying to enter the UK to work under the Highly Skilled Migrant Programme will now be scored against amended criteria including: qualifications, previous earnings, age, prior experience in the UK as a student or employee and participation in an MBA programme. It will also be mandatory for the workers to speak English.

Immigration Minister Liam Byrne said of the changes: "Businesses and colleges benefit from having foreign nationals work or study with them so they have a special responsibility to help us get the rules right."

The existing Highly Skilled Migrant programme was suspended on 7 November for 27 days.   Any applications made during this period will be considered under the amended rules once the suspension has been lifted. Back

For further information, please contact immigration.team@pinsentmasons.com

LEGISLATION

There is no legislation to report this week.

CASES

EAT Clarifies Scope of Protective Awards

The EAT has confirmed that employees may not rely on a protective award obtained by a Trade Union where those employees are not of a description in respect of which the Trade Union is recognised by their employer.

Where collective redundancies are proposed, employers must consult appropriate representatives of employees about the proposed redundancies (s.188 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA)). If it fails to do so, a Tribunal can make a protective award.  Where the employer recognises a trade union in respect of a particular category of employees, the appropriate representative to be consulted is the union.

The TGWU obtained a protective award in the Employment Tribunal in respect of the shop floor engineering section employees.  The employer recognised the TGWU in respect of this category of employees.  The TGWU argued that the protective award should cover all employees that were made redundant and not just those employees in respect of which the TGWU was the recognised union.   The EAT disagreed.  A trade union can only bring a claim in respect of those employees it represents (ie the category in respect of which is recognised) and a protective award made to a trade union can only benefit those employees and no other employees (who must make their own claim for a protective award).

This case makes it clear that where a union obtains a protective award, only employees falling in categories in respect of which the union is recognised can benefit from the award (which can include employees who are not union members). Union members in other categories are not entitled to benefit.  The key to entitlement is not therefore whether a particular employee is a union member, but whether he is in a category in respect of which the employer recognises the union. This result is not surprising, bearing in mind the wording of the statutory provisions but it is apparently the first time the EAT has been asked to rule on this issue.

TGWU v Brauer Coley (in administration) Back

No Free-Standing Claim for Breach of the Statutory Procedures

The EAT has confirmed that there is no free-standing complaint of failing to follow the statutory procedures.

The claimant could not bring an unfair dismissal claim as he did not have the requisite one year's continuous employment.  He contended that he was able to bring a free-standing claim for failure by his former employer to follow the statutory procedures. 

The EAT held that the tribunal does not have jurisdiction to hear such free-standing complaints.  The purpose behind the statutory procedures is to resolve disputes and thereby reduce the number of complaints reaching the tribunal.  If the procedures did give rise to a free-standing claim, this would have the contrary effect of increasing the volume of tribunal claims.

This decision is not controversial. The wording relating to the statutory procedures is set out plainly in the Employment Act 2002.  However, this case will serve as a useful rebuttal to any future claimants who try to run an argument that they are entitled to a remedy for breach of the statutory procedures when they have no substantive right upon which to base their claim.

Scott-Davies v Redgate Medical Services Back

Beware of Reliance on Detailed Disciplinary and Dismissal Procedures

An employee's dismissal was automatically unfair because the employer refused to hear the employee's appeal as he had not complied with the company's appeal procedure.

Under the company's disciplinary procedure, employees who wished to appeal a disciplinary decision were required to set out the grounds of their appeal in writing within five working days. The claimant wrote to the employer within the relevant time limit stating that he wished to appeal and that the grounds for appeal would follow once he had taken legal advice.  The employer agreed that he could have further time until 22 November to set out his grounds of appeal. These did not in fact arrive until 6 December. The employer refused to hear the appeal as there had been too long a delay providing the written grounds. The employee claimed unfair dismissal and the Employment Tribunal held that the dismissal was automatically unfair as step three of the statutory dismissal procedure (the appeal stage) had not been complied with.   

The EAT agreed with the Tribunal. It noted that there is no requirement in the statutory procedures for an appeal to be made in writing, let alone for the grounds of appeal to be set out in writing.  The only requirement is for the employee to inform the employer of their wish to appeal.

By refusing to go through the appeal process, the employer had not followed the minimum statutory dismissal procedure and had denied the employee his right of appeal.  The dismissal was therefore automatically unfair.

This case is a warning to employers that if they have disciplinary and dismissal procedures (or grievance procedures) which are more detailed and robust than the statutory procedures, they must be careful to ensure that when operating those procedures they still comply with the minimum statutory requirements.  Over reliance on the provisions of a company procedure may result in a dismissal being automatically unfair and uplifts in awards.  

Masterfoods v Wilson Back

Fosroc International Request Leave for Appeal

In our HR Briefing of 16 October 2006, we reported the case of Christopher Keeley v Fosroc International Limited.  Fosroc International has now lodged a request for leave to appeal to the House of Lords.

In this case, the Court of Appeal held that enhanced redundancy payment provisions contained in a staff handbook are particularly 'apt' for incorporation into the contract of employment. 

 (House of Lords minutes of proceedings, 6 November 2006) Back

NEXT HR NETWORK EVENT

Our next HR Network Event will be our half day seminar "Multi Topic Review of the Year" which is taking place in December.   A full list of HR Network workshops and seminars is available here.

© Pinsent Masons 2006

This bulletin is not intended to be a definitive analysis of legislative or other changes and professional advice should be taken before any course of action is pursued.

Should you have any questions please contact your usual Pinsent Masons advisor, your local office (see below) or hrnetwork@pinsentmasons.com

National Head of Employment

Chris Booth