tag:blogger.com,1999:blog-22802776119252592602024-03-16T01:09:52.457+00:00Employment law adviceEmployment law advice from employment law barrister Charles Pricecharles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.comBlogger254125tag:blogger.com,1999:blog-2280277611925259260.post-74482534945054546192022-09-20T10:17:00.003+01:002022-09-20T10:17:48.143+01:00New Vento Bands from 6 April 2022<p> </p><h2 style="background-color: #f6f7f8; box-sizing: border-box; color: #212529; font-family: Poppins, sans-serif; font-size: 28px; line-height: 32px; margin-bottom: 1.25rem; margin-top: 0px;"><br /></h2><p style="background-color: #f6f7f8; box-sizing: border-box; color: #212529; font-family: Poppins, sans-serif; font-size: 16px; margin-bottom: 1rem; margin-top: 0px;">New Vento bands for injury to feelings and psychiatric injury have been released by the Presidents of England & Wales and Scotland.</p><p style="background-color: #f6f7f8; box-sizing: border-box; color: #212529; font-family: Poppins, sans-serif; font-size: 16px; margin-bottom: 1rem; margin-top: 0px;">A fifth addendum to the Presidential Guidance (which was originally published on 5 September 2017) was published on 28 March 2022. The addendum updates, but does not otherwise replace, the first, second, third and fourth addenda, which remain relevant to claims presented before 6 April 2022.</p><p style="background-color: #f6f7f8; box-sizing: border-box; color: #212529; font-family: Poppins, sans-serif; font-size: 16px; margin-bottom: 1rem; margin-top: 0px;">The updated Vento bands, which apply to any claims presented on or after 6 April 2022, shall be as follows:</p><ul style="background-color: #f6f7f8; box-sizing: border-box; color: #212529; font-family: Poppins, sans-serif; font-size: 16px; margin: 0px -9px; padding: 0px 0px 0px 20px;"><li style="box-sizing: border-box; margin: 0px 10px; position: relative;">a lower band of £990 to £9,900 (less serious cases);</li><li style="box-sizing: border-box; margin: 0px 10px; position: relative;">a middle band of £9,900 to £29,600 (cases that do not merit an award in the upper band); and</li><li style="box-sizing: border-box; margin: 0px 10px; position: relative;">an upper band of £29,600 to £49,300 (the most serious cases), with the most exceptional cases capable of exceeding £49,300.</li></ul>charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com0tag:blogger.com,1999:blog-2280277611925259260.post-4020251966833764622020-04-05T14:56:00.002+01:002020-04-05T14:57:10.261+01:00UPDATES ON THE GOVERNMENT COVID-19 RULINGS<br />
Since March 20th, when the Government set out a wide range of measures to help both employers and employees as a result of the Covid-19 epidemic, things have moved on apace. Rishi Sunak, Chancellor of the Exchequer, sought from the start, to tackle the likely hardship that employees will suffer and to help businesses to retain a workforce that it will be able to call on when business picks up. Thus avoiding mass redundancies.<br />
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Measures such as the deferral of VAT and income tax payments, a 12 month break for payment of business rates in some sectors, in addition to changes to SSP, have been brought in to assist businesses in the current climate. Importantly, the Government has also introduced the Coronavirus Job Retention Scheme (CJRS) which is discussed below. A new website has been launched to help businesses find out how to access the support: Coronavirus Business Support Website.<br />
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As the situation evolves, the Chancellor, to his credit, has taken steps to ensure that businesses do not suffer more than necessary from the inevitable time lag in some of the measures coming into force.<br />
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The Government has, for instance, at the time of writing ordered banks to grant emergency loans from more businesses after fewer than 1,000 were approved out of 130,000 enquiries. Sunak has just announced that he is barring lenders from demanding personal guarantees from all borrowers for all loans under £250,000.<br />
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Several banks had asked directors to put their homes or savings up as collateral and charged interest up to 30%.<br />
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Here are some of the latest questions about the CJRS Scheme:<br />
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Q: What is the CJRS Scheme and what does it cover?<br />
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∞<span class="Apple-tab-span" style="white-space: pre;"> </span>CJRS will allow all UK employers (big and small, private and public) to apply for a grant to reimburse them for part of the salaries that they pay to those employees who are laid off because of the downturn in work (otherwise known as furloughed workers.) The furloughed workers will be on furloughed leave. During this time, they will continue to be employed by the employer but will not be allowed to work for a temporary period of time.<br />
∞<span class="Apple-tab-span" style="white-space: pre;"> </span>The CJRS will assist employers by reimbursing them up to 80% of the wages of each furloughed worker, up to a maximum of £2,500 per month (we will update you once the Government confirms whether this means £2,500 per month before or after tax.)<br />
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Q: When does the CJRS start and finish?<br />
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∞<span class="Apple-tab-span" style="white-space: pre;"> </span>Our understanding is that the CJRS will run from April 2020 (date to be confirmed) but will be backdated from 1st March 2020 and is expected to run for at least three months.<br />
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Q: How can employers obtain a grant from the CJRS?<br />
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∞<span class="Apple-tab-span" style="white-space: pre;"> </span>As we understand it, (1) employers will need to designate affected employees as furloughed workers and notify those employees of this change and agree this with them (2) employers will then need to submit information to HMRC about those employees who have been designated as furloughed and their earnings via a new online portal which is being set up (3) HMRC will then reimburse 80% of wage costs for furloughed workers up to a cap of £2,500 per month. Exactly when these funds will be available is currently unknown.<br />
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Q: Will employers have to pay the money back?<br />
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∞<span class="Apple-tab-span" style="white-space: pre;"> </span>The word “grant” is used in all the guidance to date, which would suggest that the employer will need to pay the money back at some point, but that is not our understanding; it just seems that the Government could have chosen a better word to describe it, e.g. a “payment”. It was reported yesterday (4th April) an employer can reclaim 80% of compulsory (presumably meaning contractual) commission back from HMRC, as well as basic salary. The 80% apparently does not include non-monetary benefits (eg the value of health insurance or a car<br />
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Q: Does the £2,500 monthly cap refer to basic or the employee’s take-home pay?<br />
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∞<span class="Apple-tab-span" style="white-space: pre;"> </span>The Government has not stated whether this refers to basic pay or take-home pay. However, it would be reasonable to consider that the wages covered by CJRS would be applicable to the employee’s take-home pay.<br />
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Q: Does the employer have to make up the remaining 20% of the furloughed employee’s pay?<br />
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∞<span class="Apple-tab-span" style="white-space: pre;"> </span>The guidance does not deal with this point, although it does state that an employer could “choose” to make up the difference but it is not obliged to. We do not feel that many would want to make up this difference in the circumstances.<br />
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Q: Would self-employed people get similar help?<br />
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∞<span class="Apple-tab-span" style="white-space: pre;"> </span>Yes. The Bill which passed through the House of Commons includes provision for a new statutory self-employed pay. This will ensure that the net monthly payments of a self-employed or freelancer do not fall below 80% of that which they received in the previous three years.<br />
Q: What about employee’s rights whilst they are furloughed?<br />
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∞<span class="Apple-tab-span" style="white-space: pre;"> </span>As the contract of employment will continue, we anticipate that any rights and benefits (save those in respect of their pay,) will continue to accrue as usual. As such, employees would also continue to accrue holiday as they are furloughed.<br />
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Q: When will the new HMRC portal go live for employers so that they can apply for the grant?<br />
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∞<span class="Apple-tab-span" style="white-space: pre;"> </span>HMRC are working to get this up and running before the end of April 2020. Hopefully it will be available before then.<br />
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Q: Can an employee start a new job when on furlough?<br />
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∞<span class="Apple-tab-span" style="white-space: pre;"> </span>Yes. The guidance expressly allows this.<br />
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NOTE: Employers must notify employees of their furloughed status in writing and keep the record of that written notification for five years.<br />
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As clarification on matters is announced, we will update you as quickly as possible.<br />
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<a href="http://www.charlesprice.net/">www.charlesprice.net</a>charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com5tag:blogger.com,1999:blog-2280277611925259260.post-36168436881902875762019-09-19T09:44:00.006+01:002019-09-19T09:44:58.982+01:00Does Redundancy Pay Contribute to the 25k Cap on Contractual Claims?No according to His Honour David Richardson of the EAT in Uradar v Lancashire Care NHS Foundation Trust [2019] UKEAT 0301_18_2006<br />
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The rationale for the decision can be distilled (very briefly) down to the fact that there were two very different causes of action; a statutory AND a contractual claim.<br />
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Interestingly, at paragraph 28 the statutory cap is derided for being anachronistic;<br />
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<i>As we leave this case we would add the following comment. The statutory cap in the 1994 Order has remained unchanged for a quarter of a century. It seems only necessary to pass a statutory instrument to provide for a higher cap. The powers are now contained in Sections 3, 8 and 41 of the Employment Tribunals Act 1996. This case and the case of Eden to which we have referred, demonstrates that at its present level the cap is capable of producing real injustice. In order to bring the claim for a contractual redundancy payment before a Tribunal with relevant specialist experience, the two employees had to forego substantial parts of their contractual entitlement. If the statutory cap had been increased in line with inflation they would not have suffered these losses. The statutory cap is also out of step with the very much wider powers of the ET and in other areas of its jurisdiction.</i><br />
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Hopefully we shall see an adjustment of the statutory cap soon at least to level in step with inflation.<br />
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charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com3tag:blogger.com,1999:blog-2280277611925259260.post-11249845899858146262019-07-05T11:55:00.000+01:002019-07-05T11:55:19.227+01:00ECJ holds that employers must record daily working timeIn the case of <i>Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, ECJ</i> 14.5.19 (C-55/18).The ECJ considered the extent of employer's record-keeping obligations in relation to the provisions of the EU Working Time Directive on maximum weekly working time and daily and weekly rest.<br />
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Article 31(2) of the Charter of Fundamental Rights of the European Union (‘the EU Charter’) provides: ‘Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.’ These rights are given effect by the EU Working Time Directive (No.2003/88), which requires Member States to take the necessary measures to ensure (among other things) that workers are entitled to a minimum daily rest period of 11 consecutive hours (Article 3); a minimum uninterrupted weekly rest period of 24 hours (Article 5); and a limit on average weekly working time of 48 hours (Article 6).<br />
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The ECJ concluded that, in order to ensure the effectiveness of the rights provided for by the Directive and enshrined in Article 31(2) of the EU Charter, Member States must require employers to set up an ‘objective, reliable and accessible system’ enabling the duration of time worked each day by each worker to be measured.<br />
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<br />charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com0tag:blogger.com,1999:blog-2280277611925259260.post-63613685775152082512019-06-26T13:37:00.000+01:002019-07-05T10:38:43.975+01:00Attempt to enforce Re-engagement remedy with an injunction failsIt is a well trodden path that employment tribunals may order an unfairly dismissed employee to be re-engaged. It has also been accepted that the employer's failure to comply results in (not a particularly hefty) additional compensatory award.<br />
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The attempt by one clever lawyer to enforce that re-engagement order via an injunction has flopped in The Court of Appeal see <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2019/1060.html" target="_blank">Mackenzie v The University of Cambridge</a>.<br />
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Lord Justice Underhill swiping the appeal 'over the boundary' commented (para 33):<br />
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The obligation is one that the statute does not intend should be specifically enforceable (s117 ERA1996) : <i>the only remedy for non-compliance is the additional award. If that means that it is a rather unusual form of "order", so be it.</i><br />
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<br />charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com0tag:blogger.com,1999:blog-2280277611925259260.post-74796051599818908142018-06-15T11:07:00.003+01:002018-07-04T11:45:59.835+01:00Supreme Court Rules on "Self-Employed" Plumber
The long - awaited Supreme Court ruling in the landmark Pimlico Plumbers case has upheld previous decisions that an ostensibly "self - employed" plumber was in fact properly classified as a "worker" with valuable employment rights under UK law (including discrimination protection and holiday pay).The ruling is important because of its the likely impact on a large number of individuals operating on a self-employed basis, including those operating in the "gig" economy.
At the heart of the case (Pimlico Plumbers Ltd and another v Smith [2018]UKSC 29) was the employment status of Gary Smith, a plumber who worked on a self employed basis with Pimlico for approximately six years over 2005 - 2011. Both the Employment Appeal Tribunal and the Court of Appeal supported Mr Smith's position that he was a "worker" with limited, but often valuable, employment rights , including holiday pay.
Pimlico Plumbers took the case to appeal in the Supreme Court.The comany has lost that appeal, with the Supreme Court supporting previous rulings that key aspects of Smith's working conditions meant that he cannot be classed as an independent self - employed contractor for employment law purposes.
In the view of the Supreme Court, the fact that Pimlico exercised tight administrative control over Smith, imposed conditions around how much it paid him and on his clothing and appearance for work, and restricted his ability to carry out similar work for competitors if he moved on from the company, all supported the conclusion that he was a "worker" and not genuinely self-employed.
The Supreme Court also noted that a main feature of his relationship with the company was that he would do the work personally, rather than pass it on to a substitute contractor, even though he did have the option to pass work to another Pimlico operative.
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www.charlesprice.net</a>charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com5tag:blogger.com,1999:blog-2280277611925259260.post-26989782929326996812018-05-22T13:21:00.002+01:002018-05-22T13:21:46.546+01:00Royal Surrey County NHS Foundation Trust v DrzymalaA doctor was employed on a series of fixed-term contracts.Her last contract was not renewed because her employer decided to make a permanent appointment to the role she had been performing. She interviewed for the position but was unsuccessful after a competitive recruitment process. Her employer mentioned an alternative role in a lower ranking post but did not discuss it with her. The doctor was given three months' notice in writing of the end of her fixed term contract, without mention of a right of appeal or the possibility of alternative employment. She raised a grievance and requested an appeal against the termination of her employment. Her employer acknowledged that it should have offered a right of appeal against the non-renewal of her contract, but did not think that it would have changed the outcome.
The doctor brought a succesful claim for unfair dismissal in the ET. Her employer appealed, arguing that informing her of vacancies as required by the Fixed Term Employee Regulations satisfied the requirements of fairness, or at least provided evidence in support of it having acted fairly.The EAT dismissed the appeal and concluded that compliance with the FTER doers not of itself create a defence to an unfair dismissal claim. The Tribunal was entitled to find that the dismissal was unfair due to the employer's failure to expand upon its initial discussion with the doctor regarding alternative roles, and not providing a right of appeal against the non-renewal of her contract.
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charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com0tag:blogger.com,1999:blog-2280277611925259260.post-45974550395874170142018-05-22T13:17:00.000+01:002018-05-22T13:17:00.317+01:00 Female Employee Wins £24,000 Discrimination Award
A female employee at DWP has been awarded £24,000 in compensation after she was discriminated against because of IVF treatment.In the case of Ginger v Department for Work and Pensions, the Employment Tribunal held that the DWP had discriminated against a female employee when a colleague asked her whether she could cope with a second child and when she was refused leave to take further IVF treatment.
Mrs Ginger commenced her employment with the DWP in July 2009 , where she was employed as a work coach at Luton Job Centre.In 2011, she began a course of IVF treatment and gave birth to a son.In 2013 she began a further course of IVF treatment and in June 2014 she had a three-day absence from work for pregnancy - related /childbirth complications.In July 2014 she began a further course of IVF treatment and informed her then - manager, Mr Mills, that she may need time off at short notice for IVF treatment. At the end of September 2014, Mrs Ginger suffered a miscarraige and was therefore absent from work until January 14th, 2015.
On January 15th, 2015 Mrs Ginger attended a return to work interview with Mr Mills.Mrs Ginger confirmed that she had been absent from work after suffering two miscarraiges , and that she was undergoing counselling due to her miscarraige.Mrs Ginger alleged that at this meeting Mr Mills stated to her "in order to have a miscarraige your pregnancy must be confirmed".
Mrs Ginger subsequently made a claim for pregnancy discrimination in the Employment Tribunal, which upheld her claim as follows: In April, 2015 Mr Mills asked her if she could cope with a second child and whether it was a good idea to have further IVF treatment - the Tribunal found that this conduct amounted to direct sex discrimination, as the Tribunal held that Mr Mills would not have spoken to a man in this manner.The Tribunal also found that, as Mrs Ginger was refused leave in May 2015 to attend for further IVF treament - this conduct amounted to direct sex discrimination, as the Tribunal held that Mr Mills would not have spoken to a man in this manner.
Ginger v Department for Work and Pensions 3401940/2015
<a href="http://www.charlesprice.net">www.charlesprice.net</a>charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com0tag:blogger.com,1999:blog-2280277611925259260.post-79647611958704195762018-04-13T14:44:00.003+01:002018-04-13T14:51:49.372+01:00Data Protection Deadline LoomsBy May 25th this year, the General Data Protection (GDPR), agreed by the European Parliament in April 2016, will replace the Data Protection Directive 95/46/ec as the primary law regulating how companies protect EU citizens' personal data.<br />
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Companies that are already in compliance with the Directive must ensure that that they are compliant with the new requirements of the GDPR before it becomes effective. Companies that fail to achieve GDPR by May 25 will be subject to stiff penalties and fines.<br />
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What is GDPR?<br />
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There are two main factors behind the introduction of GDPR. The biggest one is the EU's desire to bring data protection law in line with how people's data is being used, especially considering that firms like Amazon, Google,Twitter and Facebook offer their services for free, as long as people offer their data to these tech giants. The dangers of granting such vast permissions can be illustrated by the ongoing Cambridge Analytica scandal, where 50 million Facebook profiles were harvested for use by third parties.<br />
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Who Does GDPR Apply To?<br />
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'Controllers' and 'processors' of data need to abide by the GDPR. A data controller states how and why personal data is processed, while a processor is the party doing the actual processing of the data. So the controller could be any organisation, from a profit-seeking company to a charity or government. A processor could be an IT firm doing the actual data processing.<br />
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Because GDPR is a regulation, not a directive, the UK does not need to draw up new regulations - instead, it will apply automatically.<br />
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Is you company compliant please call me for a review of your policies on 07846692325<br />
<br />charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com0tag:blogger.com,1999:blog-2280277611925259260.post-21929133784427527732018-03-02T11:05:00.002+00:002018-03-02T11:05:34.902+00:00New Tax Rules for Termination Payments 'The HM Revenue and Customs Employer Bulletin issue 70' has reported that there will be new rules for termination payments made on, or after 6 April 2018<br />
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As an employment lawyer terms such as the 'PENP' will be alien..<br />
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'Payments in lieu of notice'<br />
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<i>With effect from 6 April 2018, some payments and benefits made in connection with the termination of an employment will be chargeable to income tax and Class 1 National Insurance Contributions (NICs) as general earnings and will not benefit from the £30,000 threshold. This change applies to payments, or benefits received on, or after 6 April 2018 in circumstances where the employment is also ended on, or after 6 April 2018. The legislation being introduced splits payments and benefits, which fall within Section 401(1) ITEPA 2003, into two elements.</i><br />
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<i>The first element, post-employment notice pay (PENP) is taxable as general earnings and will be subject to Class 1 NICs from 6 April 2018, subject to parliamentary approval. The PENP represents the amount of basic pay the employee will not receive because their employment was terminated without full, or proper notice being given.</i><br />
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<i>PENP is calculated by applying a formula set out in the legislation to the total amount of the payment, or benefits paid in connection with the termination of an employment.</i><br />
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<i>The second element is the remaining balance of the termination payment, or benefit, which isn’t PENP. This is taxable as specific employment income to the extent that it exceeds £30,000 and is treated in the same way as other payments and benefits taxable under section 403 ITEPA 2003.</i><br />
<i>PENP calculations should not be applied to statutory redundancy payments. These payments are always taxable as specific employment income and subject to the £30,000 exemption where appropriate.</i><br />
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<i>As an employer you will be required to apply the PENP formula to the total amount of relevant termination payments, or benefits. You should operate PAYE to deduct income tax and Class 1 NICs from the amount of PENP from 6 April 2018. You should then apply the £30,000 exemption, where applicable, to the second element of the relevant termination payment and deduct income tax (but not NICs) accordingly.</i>charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com2tag:blogger.com,1999:blog-2280277611925259260.post-54027920248820939612018-03-01T12:05:00.001+00:002018-03-01T12:05:14.273+00:00Whistleblowing - knowledge of decision maker<br />
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Predictably and logically The EAT has held that a decison-maker must have personal knowledge of a protected disclosure and be motivated by the disclosure when subjecting a whistleblower to a detriment , in order to be liable in a whistleblowing detriment claim.The knowledge and motivation of others cannot be attributed to an innocent decision-maker who does not know about the protected disclosure.<br />
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In this case ,the EAT, in dismissing the appeal,found that the ET did not err in failing to refer expressly to an aspect of the Claimant's case that was neither pleaded nor identified in the agreed List of Issues<br />
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UKEAT/0100/17/RN<br />
Malik v Cenkos Securities Plc<br />
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<br />charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com2tag:blogger.com,1999:blog-2280277611925259260.post-3803222536322423522018-03-01T12:03:00.004+00:002018-03-01T12:03:42.217+00:00Expiry of Fixed -Term Contracts<br />
A recent decision from the EAT serves as a useful reminder for employers that the law on unfair dismissal still applies to the non-renewal of a fixed -term contract and that the usual procedures to avoid a claim for unfair dismissal may need to be followed when the fixed-term comes to an end.<br />
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In this case, concerning a locum doctor employed on a series of fixed - term contracts , the EAT upheld the employment tribunal's finding of unfair dismissal because, when notice was given of the non-renewal of the fixed - term contract , there was no discussion about alternative roles and no mention of a right of appeal.<br />
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The EAT,in dismissing the Appeal, did not err in law either by substituting its own view for that of the employer on the issue of fairness , nor by placing too high a burden on the employer when decidiing that it should have offered to discuss possible alternative employment with the employee.<br />
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UKAET/0063/17/BA<br />
Royal Surrey County NHS Foundation Trust v Drzymala<br />
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<a href="http://www.charlesprice.net/">www.charlesprice.net</a>charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com0tag:blogger.com,1999:blog-2280277611925259260.post-14404129829346615422018-03-01T12:02:00.002+00:002018-03-01T12:02:22.934+00:00Rest Break Crucial<br />
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The EAT has held that the length of the 20 minute rest break required for workers under the Working Time Regulations is crucial and cannot be met by aggregrating breaks of a shorter duration.<br />
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In this case,the signalman who worked on his own on a stretch of railway that was nor busy , was able to take shorter , naturally occurring breaks between trains and these breaks amounted to significantly more than 20 minutes over the course of his shift.<br />
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However , the EAT made it clear that the length of the break was crucial and as each break was less than 20 minutes the employer was held to be in breach of the Working Time Regulations.<br />
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They rejected the argument that the Network Rail's system in this case was actually better from a health and safety point of view than a system involving a continuous 20 minute break.<br />
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UKEAT/0316/16/BA<br />
Crawford v Network Rail Infrastructures Ltd<br />
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<br />charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com0tag:blogger.com,1999:blog-2280277611925259260.post-51373295659813846752018-03-01T11:51:00.000+00:002018-03-01T12:00:19.094+00:00Injury to Feelings Payable in Working Time Detriment Claims<br />
A worker has the right not to be subjected to a detriment for refusing to comply with a requirement that breaches the Working Time Regulations 1998. In South Yorkshire Fire & Rescue Service v Mansell and others, the EAT held that tribunals may make injury to feelings awards in such cases.<br />
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Mr Mansell, a firefighter employed by South Yorkshire Fire & Rescue Service,refused to volunteer for a new shift pattern which contravened the Working Time Regulations.As a result ,he was compulsorily transferred to another station and brought a claim for detrimental treatment.<br />
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The EAT,upholding the original decision,held that compensation to feelings may be awarded in working time detriment claims.With injury to feelings available for other detriment claims under ERA, including whistleblowing and trade union membership,the EAT saw no reason why awards could not also be made for working time detriment claims.<br />
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UKEAT/0151/17/DM<br />
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<a href="http://www.charlesprice.net/">www.charlesprice.net</a>charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com0tag:blogger.com,1999:blog-2280277611925259260.post-42835031043207824452018-02-15T10:31:00.005+00:002018-02-15T10:31:53.490+00:00Tribunal Can Hear Evidence about "Protected Conversation" in an Unfair Dismissal CaseThe idea of "protected conversations" is to allow employers to enter into off-the-record conversations with a view to agreeing the exit of an employee.<br />
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The "protected conversation" policy was introduced under s.111A of the Employment Rights Act 2013 and was a flagship policy of the Government's employment reform.<br />
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Under the Act, details of these conversations cannot be used in subsequent tribunal proceedings. In theory this sounds like a good idea; employers will be free to discuss exit packages in a full and frank atmosphere without fear of their comment being reported to the tribunal in any subsequent proceedings and prejudicing their case.<br />
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However, in a significant ruling by the EAT in Basra v BJSS Ltd it was held that a tribunal can hear evidence about "protected conversations" in an unfair dismissal case if the date of termination is in dispute.<br />
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In this case, the claimant wrote an email to the respondent in response to a without prejudice offer letter it had sent saying "today will be the last day at BJSS". The claimant then stopped attending work, and later brought a claim for unfair dismissal.<br />
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BJSS argued that the claimant's employment had ended by mutual termination and,in the alternative, the email was a resignation.The claimant denied resigning and said he had been dismissed by BJSS at a later date.The tribunal argued that s111A protection cannot be waived and excluded BJSS's offer letter as protected under s111A ERA.<br />
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However,the EAT held that as the protection under s111A only applies to pre-termination negotiations," the chronological line between what is,and what is not , admissable therefore lies on the point at which the contract is terminated".The tribunal would not be in a position to say what evidence should be excluded "until that dispute is determined"..<br />
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Thus, the tribunal needs to determine the termination date before applying s111A.<br />
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<a href="http://www.charlesprice.net/">www.charlesprice.net</a>charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com1tag:blogger.com,1999:blog-2280277611925259260.post-48426826401199830222018-01-15T10:54:00.002+00:002018-01-15T10:54:15.302+00:00Book Review: The Law Society's 'Employment Law Handbook' 7th edition Barnett, Baker and Butler<br />
<br />
The 7th edition of 'The Employment Law Handbook Handbook' remains an excellent starting point for any employment law practitioner or HR professional. It is acknowledged that much of its contents are influenced by ex- contributor Henry Scrope who gave us the compendious www.emplaw.co.uk a great source of free employment law before it was taken over a few years ago.<br />
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One thing which immediately offers value in buying this text is the vital addition of commentary on two of the hot topics for 2017/2018 the abolition of the fees regime and the status of 'gig economy' workers.<br />
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Looking at contents of chapters including old favourites such as 'Redundancy' you will not see protracted commentary on rare examples of extraordinary cases falling under this genre but you will see the essential legal 'building blocks' of any skeleton argument involving redundancy and the basis of sound law required to swot up on before advising a client.<br />
<br />
The three authors, of course are experienced practitioners and with their names in the shop window are not going to produce a sub standard text. At around £70 the book is not cheap but you are paying for a reliable motor. When 'Harvey's' is too bulky and time is of the essence this book should be in my opinion the practitioner's trusty companion.<br />
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<a href="http://www.charlesprice.net/">www.charlesprice.net</a><br />
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<br />charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com1tag:blogger.com,1999:blog-2280277611925259260.post-13338919385939729062017-12-13T18:16:00.000+00:002017-12-13T18:16:03.542+00:00Rulings Could Change Nature of UK "Gig" EconomyCrucial rulings affecting thousands of workers in the fast - growing "gig" economy will inevitably lead to more challenges by workers in this sector who seek workers' rights such as access to reasonable adjustments and holidays.<br />
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To put things into context,no less than 60% of self-employed people work in the transportation or storage sector with many more in the low paid food and cleaning industries.<br />
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In two on-going cases: Aslam and Farrar and others v Uber BV, Uber London and Uber Britannia Ltd,and Pimlico Plumbers Ltd and another v Smith, the claimants are basically seeking the same ends - their entitlement to minimum wage and paid leave, arguing that, they are arms' reach third party contractors running their own businesses, they would have no such rights.<br />
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In the case of Aslam and Farrar v Uber, the ET found against the latter,whilst in Pimlico Plumbers .v Smith,the Court of Appeal ruled against the former but the Supreme Court has given Pimlico Plumbers permission to appeal with the hearing set for February,2018.Uber's application to "leap frog" an appeal to the Supreme Court has been refused and Uber has yet to exercise the right of appeal.<br />
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The two cases are similar in that they both raise the fundamental question of whether workers in both instances can be seen as self-employed or workers, with all the rights that implies.<br />
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In the Uber case, Mr Aslam and Mr Farrar were put forward by the GMB union in a test case for 40,000 individuals currently operating as Uber drivers,of which three quarters are based in London.Uber contended that the drivers were running their own businesses,keeping their own accounts and declaring their own tax.As such they were third party contractors without any employment relationship or rights.<br />
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The drivers contended that they were workers and as such entitled to rights under the National Minimum Wage Act 1998 and the Working Time Regulations 1998 which afforded them paid leave.<br />
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"The notion,"said the Tribunal,"that Uber in London is a mosaic of 30,000 small businesses linked by a common platform is to our minds ridiculous"; "Simple commonsense argues to the contrary".<br />
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In the case of Pimlico Plumbers v Smith,the Court of Appeal's decision was that a plumber who signed an agreement with the company describing himself as self-employed was in fact a worker.<br />
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Mr Smith was required under the contract to wear Pimlico's uniform,use a van leased from Pimlico (with a GPS tracker and the company,s logo), and work a minimum number of weekly hours. He could choose when he worked and which jobs he took, was required to provide his own tools,and handled his own tax and insurance.<br />
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Mr Smith brought claims in the ET that were dependant on his being a "worker". When Mr Smith's case reached the Court of Appeal, it accepted that he was a worker, entitling him to some basic employment rights, such as the right to be paid the national minimum wage and holiday pay.<br />
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The upcoming Pimlico Plumbers ruling by the Supreme Court and the eventual outcome at Uber will undoubtedly lay the ground for more test cases by this significant sector of the UK workforce.<br />
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Aslam and Farrar and others v Uber BV,Uber London Ltd and Uber Britannia Ltd (2202550/2015)<br />
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Pimlico Plumbers and Charlie Mullins v Gary Smith (UKEAT 049512DM)charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com0tag:blogger.com,1999:blog-2280277611925259260.post-70618689821147380252017-12-01T15:25:00.003+00:002017-12-07T15:21:38.010+00:00holiday pay elephantine judgmentAs we know some companies engage staff by labelling them as 'self employed' when really they should be defined as 'workers'. 'Worker' status ascribes certain benefits such as the ability to pursue various claims in the employment tribunal but most importantly paid annual leave.<br />
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A new judgment has exposed companies, who engage people in what has been dubbed 'the gig economy' to thousands of pounds in compensation payments. The judgment involved Conley King who worked as a sash curtain fitter on a self-employed basis, but was later found to have workers' rights. He brought a successful claim for £27,000 of backpay holiday pay he says he should have received.<br />
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Being classified as self employed means they have no protection against unfair dismissal, no right to redundancy payments, and no right to receive the national minimum wage, paid holiday or sickness pay. Often however self employed workers have more flexibility and will be paid more to compensate for the loss of rights. The test defining a worker is complex and legal advice should be sought before a claim is commenced.<br />
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In the UK, it is estimated that one million people are employed in this type of capacity and so there are potentially serious implications for companies who have embraced 'the gig economy'.<br />
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www.charlesprice.net<br />
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<a href="http://curia.europa.eu/juris/document/document.jsf?text=&docid=197263&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=847447" target="_blank">King V Sash Windows judgment</a>charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com0tag:blogger.com,1999:blog-2280277611925259260.post-7186604789642398402017-11-28T11:15:00.002+00:002017-11-28T11:15:22.921+00:00Content on your firm's websiteImprove your firm's exposure and SEO with topical and informative legal articles on your website.<br />
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<br />charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com1tag:blogger.com,1999:blog-2280277611925259260.post-26165169007194765052017-11-28T11:12:00.003+00:002017-11-28T11:12:23.352+00:00 What the employer should know about breast feeding <br />
Failing to conduct an appropriate risk assessment for a breastfeeding employee was deemed sex discrimination. That was the ruling of the European Court of Justice in a recent case in which a breastfeeding mother - a working nurse in a Spanish hospital's accident and emergency unit - claimed that the risk assessment did not comply with the requirements of EU Directive 92/85/EEC covering measures to improve health and safety for pregnant and breastfeeding workers. This changes the approach employers should take. Before the decision to commission a risk assessment in this situation was only deemed 'good practice' by ACAS.<br />
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Her employer's risk assessment, argued the Claimant, had concluded without a substantial explanation that her work was "risk free", so her request for an adjustment in her working pattern on account of breastfeeding had been declined.<br />
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The Claimant, Ms Otero Ramos, alleged that her employer was in breach of the Equal Treatment Directive.In reaching its decision, the CJEU held that if a breastfeeding mother could show that a risk assessment was defective or not done, it gave rise to a prima facie case of discrimination.<br />
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Ms Otero had informed her employer that she was feeding her child on breast milk and that the tasks required by her work were liable to have an adverse effect on that milk and expose her to health and safety risks,due to a complex shift rotation system, ionising radiation, health-care associated infections and stress.<br />
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The Court, referring to Article 118a(TEC), provided that "some types of activities may pose a specific risk,for pregnant workers, workers who have recently given birth or workers who are breastfeeding, of exposure to dangerous agents, processes or working conditions, such risks must be assessed and the result of such assessment communicated to female workers and/or their representatives".<br />
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In England and Wales, employers should be aware that there is already some protection in place, as the right to breastfeed in public is covered by The Equality Act 2010 which states, 'A business cannot discriminate against mothers who are breastfeeding a child of any age.' Furthermore, Rhe Workplace (Health, Safety and Welfare) Regulations 1992 requires an employer to provide somewhere for a breastfeeding employee to rest and this includes being able to lie down.<br />
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(European case: 'CJEU : Otero Ramos v Servicio Galego de Saude')<br />
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www.charlesprice.netcharles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com0tag:blogger.com,1999:blog-2280277611925259260.post-21050778788796121392017-10-25T12:24:00.003+01:002017-10-25T12:24:38.043+01:00 Subject Access Rules Are Changing - Are You Ready in HR?<br />
On May 28th, 2018,the data protection regime across the EU (including the UK) will change.The General Data Protection Regulation (GDPR ) will replace the provisions of the Data Protection Act 1998.(DPA).<br />
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The GDPR preserves the rights provided under the current law and also provides new rights and enhanced protection for individuals. Failure to comply with the provisions of the GDPR may lead to greatly increased monetary sanctions,so it is critical that any organisations processing personal data are aware of the changes.<br />
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This data could include personnel records, metadata on computers and servers,CCTV, call logs, electronic premises access records, health and safety reports and any other electronic records or filing systems used within an organisation.<br />
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In addition, individuals will have a right to rectification of personal data being processed inaccurately by an organisation,and the right to data portability, essentially giving an individual the ability to have a copy of their personal data in a commonly used and machine-readable format.<br />
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Perhaps the most prominent and commonly used right under the DPA is subject access and this is changing under the GDPR. Organisations need to be aware of the changes and how to prepare for subject access requests under GDPR.<br />
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The GDPR defines personal data as "any information relating to a data subject" and a data subject as an identified or identifiable living person to whom personal data relates. Organisations must consider how to identify individuals, in particular employees.<br />
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Names clearly identify a person, but so may an email address, payroll number and computer login details. Careful consideration will need to be given to any other aspects of an organisation's operation that uses alternative designations (through coding or shorthand) to identify an individual.<br />
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Perhaps the biggest change to the subject access regime will be the time allowed for compliance. Less time will be available to organisations in order to comply with a subject access request. The current regime allows for 40 calendar days, but the GDPR will reduce this to one month.<br />
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Organisations may, however, be able to seek an extension of up to a maximum of two further months in cases of complex or numerous requests from an individual. If an organisation seeks an extension, it must notify the requester within one month of receiving the original request and set out why the extension is necessary. Any explanation will need to be sufficiently detailed in order to justify the request. It may be that the normal period of compliance will by default be stretched to three months in an employment context.<br />
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However, you will also need to provide additional information to employees requesting access to their data.This includes the envisaged period of storage and information about the data subject's rights.<br />
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Organisations should exercise their right,where legitimate, to ask the requester to specify the information relating to the request. This request will not pause the time for complying but it may be of particular use to those organisations that process large amounts of personal data, bringing the search into focus.<br />
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But why should the DGPR land in HR's in-tray? Surely data protection is the domain of your risk management team or the technical experts who monitor your systems?<br />
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Remember that abdicating responsibility for the GDPR would be a risky approach, as the new rules implement changes which will directly impact on the every day work of HR practitioners. Also important, the key concerns for departments handling employee data may be very different than for departments managing your organisation's interface with client and customer.<br />
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Deciding whether a request is "manifestly unfounded or excessive" will depend on individual facts and organisations should seek legal advice before making a determination.<br />
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www.charlesprice.netcharles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com0tag:blogger.com,1999:blog-2280277611925259260.post-48733042384606724812017-09-15T20:02:00.000+01:002017-10-12T11:22:14.923+01:00Suspension is not always a neutral act - HR Guide<br />
<b>Suspension of Teacher Not a Neutral Act</b><br />
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In the case of a teacher suspended because of the alleged force she used with two children, the High Court has ruled that the suspension did, in fact, amount to a breach of the implied term of mutual trust and confidence. This has come somewhat as a surprise to practitioners who have been advising for years that suspension is a neutral act and perhaps a useful tool to 'slam the breaks on' whilst an investigation can take place. So many times have we seen policies which state that suspension should be seen as a neutral act and will be used: 'If the allegation against the employee is serious or that the presence of such an individual will impede an investigation'.<br />
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In <i>Agoreyo v London Borough of Lambeth </i>however the Appellant had not been asked for her response to the allegations against pupils O and Z and she resigned the same day. The Appellant had appealed against an order dismissing her claim against the Defendant for damages for breach of contract.<br />
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The Appellant is a teacher and , at the time of the material events in November/December 2012, had about 15 years' experience of teaching and had worked previously with children with special educational needs. On November 8th, 2012, she entered into a contract with the Defendant to work as a teacher at Glenbrook Primary School, South London,having been interviewed only the day before.<br />
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The Appellant ceased working in this role on December 14th, 2012,some five weeks later. She was suspended that day because of the force she used in three incidents involving O and Z and she also "resigned" on the same day.<br />
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The Executive Head Teacher, in her letter to the Appellant,said :" I must write to inform you of a decision taken today to suspend you from duty on your normal rate of pay with immediate effect.This is a precautionary suspension, in line with disciplinary procedure pending a full investigation into allegations".<br />
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The allegations were 1) that the Appellant was seen to "drag a child very aggressively,a few feet down the corridor whilst shouting at him. 2) that " a child was dragged on the floor,out of the classroom door by yourself in the presence of another member of staff and the rest of the children and was heard to cry "help me",and that 3) "a child with special educational needs was told to leave the classroom,as he was unable to follow your instructions.When he refused you were heard to state: "If you don't walk then I will carry you out." You then proceeded to pick up the child who kicked and screamed in the presence of all the class children..."<br />
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The letter to the Appellant added that " the suspension is a neutral action and not a disciplinary sanction.The purpose of the suspension is to allow the investigation to be conducted fairly".<br />
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The Court argued that the Tribunal did not appear to have reached a specific conclusion about how difficult the two children,O and Z were. "The conclusion was to the effect that other teachers had been able to deal with them and that the Appellant had been given all the support to which she could reasonably have expected to be entitled".<br />
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"It seems tolerably clear", argued the Court," that O and Z presented, both individually and in combination, as a challenge to any teacher when confronted with the task of teaching and controlling over 20 other pupils of a similar age.<br />
"The Appellant's Counsel at the trial advanced the proposition that the "behavioural difficulties" of O and Z were "severe".<br />
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The Court concluded, in finding in the Appellant's favour, that there were very strong reasons on the evidence heard for finding that the Defendant had been in repudiatory breach of contract and that the Appellant's so-called "resignation" amounted to a constructive dismissal.<br />
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The features which distinguish this case perhaps from others are that firstly, the allegations against the teacher were very serious and secondly that a decision to suspend, which would after all prevent her from working and risk defaming her, was decided as a 'knee jerk reaction'; no other option other than suspension was explored by The Respondent. Finally, The Claimant was not interviewed before the momentous decision to suspend was taken.<br />
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This new case is perhaps not as revolutionary as it has been received in some quarters, there certainly are relevant precedents, such as the case of 'Prospects for People with Learning Difficulties v Harris UKEAT/0612/11/DMUKEAT/0612/11/DM. Here, an employee with learning difficulties was suspended without consultation 'for her own safety' on the basis that she might slip and hurt herself in her role. There had been no such slipping incident in 8 years of her employment. The EAT found, despite arguments that suspension was 'a neutral act' that such a suspension was capable of being an act of harassment.<br />
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These cases show the importance of when advising clients, that the decision to suspend should not be treated lightly,should always be fair and undertaken with consultation. The ACAS Disciplinary guide should also be considered and gives the following helpful guidance:<br />
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'Any suspension is brief, and is never used as a sanction against the employee prior to a disciplinary meeting and decision. Keep the employee informed of progress'.<br />
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Agoreyo v London Borough of Lambeth EWHC/QB/2017/2019<br />
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<a href="http://www.charlesprice.net/">www.charlesprice.net</a><br />
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charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com0tag:blogger.com,1999:blog-2280277611925259260.post-6304744537969274332017-09-04T15:55:00.001+01:002017-09-04T15:55:17.037+01:00New Vento bands for injury to feelings awardsA <a href="https://www.judiciary.gov.uk/wp-content/uploads/2017/07/vento-consultation-response-20170904.pdf" target="_blank">response</a> to the recent consultation has been issued by The President of The Employment Tribunal for those seeking guidance on how high to pitch an injury to feelings award. The new bands will apply to any claims issued on or after 11 September 2017 and will be:-<br />
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lower band (less serious cases): £800 to £8,400<br />
middle band: £8,400 to £25,200<br />
upper band (the most serious cases): £25,200 to £42,000<br />
exceptional cases: over £42,000<br />
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<a href="http://www.charlesprice.net/">www.charlesprice.net</a><br />
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<br />charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com0tag:blogger.com,1999:blog-2280277611925259260.post-65109612548794503352017-08-17T11:51:00.001+01:002017-08-17T11:51:10.609+01:00Latest on reimbursement of employment tribunal feesThe Employment Tribunals (England & Wales) have stated today:<br />
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"As you are probably aware, in advance of the Supreme Court’s judgment in the Unison case an undertaking was given to the Court to refund Employment Tribunal and Employment Appeal Tribunal fees, should the Fees Order be declared unlawful.<br />
<br />
"We are now working on the detailed arrangements of the scheme to enable that undertaking to be met and we aim to ensure that the process is as simple and unobtrusive as possible for those who make an application, while ensuring that refunds are only paid to those who are entitled. There are, however, a number of points of detail that we do need to address including, for example, how to deal with refunds in claims involving multiple claimants, and how it will operate when the tribunal has ordered the opposing party to reimburse a fee.<br />
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"Please bear with us during this period, and we hope to be in a position to make an announcement on the details of the refund scheme during September."<br />
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<a href="http://www.charlesprice.net/">www.charlesprice.net</a><br />
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charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com0tag:blogger.com,1999:blog-2280277611925259260.post-13241835206962159552017-08-10T17:41:00.001+01:002017-08-10T17:42:14.307+01:00Long awaited tribunal pension guidance The long awaited employment tribunal pension guidance has arrived 10 years after the last set. The Guidance is complex but crucial for working out compensation when it comes to pension loss.<br />
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<a href="https://www.judiciary.gov.uk/wp-content/uploads/2015/03/principles-for-compensating-pension-loss-20170810.pdf" target="_blank">Guidance</a>charles pricehttp://www.blogger.com/profile/14035208689969806455noreply@blogger.com0