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CRB checks under threat

The European Court of Human Rights ruled this week in favour of a woman who had complained after she was turned down for two jobs as a family support worker because she had a police caution for child abduction.

 

The woman, from Northern Ireland, who was not named in the judgment, had disappeared with her 10-month-old baby grandson as part of a family dispute. The child was returned unharmed just over 36 hours later. She accepted a police caution for the offence and was told that it would be removed from her record after five years.

 

The woman applied for jobs as a family support worker in 2006 and 2007 but was turned down on both occasions.

 

She took her case to the European Court of Human Rights, which ruled that the retention and disclosure of her police caution to prospective employers was a breach of Article 8 of the European Convention on Human Rights, which protects private and family life.

 

The court stated that the system appeared to have “no scope for the exercise of any discretion in the disclosure exercise” and lacked any means of bringing an independent review of a decision to retain or disclose data.   In other words, employers cannot be trusted to make decisions based on all the available information and balance the risk.

 

The court then went on to rules that; “The Court is not satisfied that there were, and are, sufficient safeguards in the system for retention and disclosure of criminal record data to ensure that data relating to the applicant’s private life have not been, and will not be, disclosed in violation of her right to respect for her private life.“

 

Following the Inquiry into the Soham murders, all convictions and cautions where the victim was a child would remain on police records for life and currently anyone applying to work with children or vulnerable adults must undergo an enhanced criminal records check that will disclose both spent and unspent convictions and cautions.

 

We wait and see if employers can be trusted or if the CRB regime is destined for the dustbin.

A right to return to work part-time, does it exist?

There is no automatic right to return to work part-time, however an employee returning from maternity leave has the right to request to work flexibly. This often takes the form of a request change their working hours, pattern of work (e.g. flexi time) or even place of work, such as working from home from home.

To qualify, the parent or caring for a child under the age of 17 (18 years of age for a child with a disability) must have been an employee for a minimum of 26 weeks (six months).

The term request is precise, the employee may make the request and the request must be in writing explaining the effect that the proposed changes would have and how the employee thinks that the employer might be able to deal with the issues raised.

The employer must consider the request, inviting the employee to a meeting to discuss the details of the request.

An employer can refuse such a request for one or more of the following reasons:

1. The burden of additional costs;
2. Detrimental effect on ability to meet customer demand;
3. Inability to re-organise work among existing staff;
4. Inability to recruit additional staff;
5. Detrimental impact on quality;
6. Detrimental impact on performance;
7. Insufficiency of work during the period the employee proposes to work; or
8. Planned structural changes.

An important factor not on the list is ensure that in making of the decision, the process and reasoning does not fall foul of the Equality Act 2010.

If the employer does refuses the application, then he must write to the employee giving them sufficient explanation PLUS information about how to appeal.

It is pointless speculating about the potential grounds an employee might have for taking issue however problems usually arise when an employer has failed to follow the procedure or has provided erroneous information in their decision.

Employers, considering a pay cut rather than redundancy?

From time to time employers need to change remuneration or face an even serious situation.  But can this be done within the law?

When seeking to achieve this, most employers know that this cannot be undertaken by simply demanding a change or withholding a portion of remuneration, such action would be a serious breach of contract.

In effect the employer is making an offer to “buy out” the relevant existing terms and at the same time adding that should the employee decline to accept the new offer, the employment will be terminated and they will be offered employment on new terms.

The process necessary for this is vexed and the process by which this is undertaken requires careful thinking and flexibility on the part of an employer.

There are two clear cases that show the difficulties faced by employers and employee.  I will only look at Slade & others v TNT (UK) because it shows the complexities very clearly. The other case is mentioned at the end of this blog.

Slade & others v TNT (UK)

The Company employs some 10,000 people in the UK and in the Republic of Ireland, based at a total of 58 locations, including 2 “hubs” at Atherstone and Kingsbury.

At those 2 hubs were approximately 660 employees. 470 of them had been contractually entitled to receive an “end of sort (EOS) bonus” which had been introduced by the employer in 1983. The EOS amounted to something like 18% of the employees and had been discontinued for new starters in August 2005.

Employees who started after that date were entitled to an “attendance bonus” which had a lower value than the EOS.

During the final quarter of 2008 the business started to feel acute financial pressure caused by the recession. The operating profit in the year between 31 December 2007 and 2008 fell from £68.5M to £11.9M in December 2009.  This created pressure on local operating managers to reduce their costs and the firm stated that the long term viability of the business was at risk if that decline could not be arrested.

In response to this downturn, between the firm made over 300 redundancies. There were other cost reduction initiatives including site closures, applying reductions to sub-contractor rates, zero pay increases for all employees and reductions in the use of agency staff and temporary labour.

In 2009 the firm decided to discontinue EOS for those 470 employees still entitled to receive it. They sought to negotiate its removal with the Trade Union and, in due course, a final offer was made to those employees working in grades which were represented by the Trade Union.

The union conducted a ballot of those employees on the offer and, by a narrow majority, they rejected it. It was in response to that rejection that the Respondent gave formal notice of termination of the contracts of service (some other substantial reason) to each of those employees, coupled with an offer of immediate re-engagement on the same terms as before but excluding the EOS bonus.
 

On in June 2009 a number of employees lodged a collective grievance against that termination, but all the affected employees accepted the offer of re-engagement under protest and without prejudice to their right to bring a claim of unfair dismissal in relation to the termination of their contract of employment.
 

In 2011 the Employment Appeals Tribunal considered the case of Mrs Slade a loading bay operative (and others including Mr Brown a traffic clerk and Mr Webster a shunter driver) .

In addition to an issue of equity (fairness of the process) the initial Tribunal identified 3 issues, only two are of interest to us:

i) Were the Respondent’s reasons (the background) for the dismissals sufficient to amount to “some other substantial reason for the purposes of section 98(1) of the 1996 Act”.

ii) If such reason (some other substantial reason) was established were the dismissals fair or unfair by reason of section 98(4) of the 1996 Act.

The Tribunal found that the case was made by the employer and the outcome of the Appeal Court determination does not alter this largely.

In the case of Garside and Laycock Ltd v Booth [2011] the Employment Appeal Tribunal (EAT) overturned an employment tribunal's decision that an employee had been unfairly dismissed when he refused to accept a pay cut and the majority of the workforce had accepted a reduction following a drop in sales and profits at the employer, thus supporting the argument for dismissal and rehiring on different terms.

References and citations (with links):

Slade & others v TNT (UK) [2011] UKEAT/0113/11/DA

Garside and Laycock Ltd v Booth [2011] UKEAT/0003/11/CEA

 

New proposals "Consumer Bill of Rights"

Whilst not entirely of an employment nature, these proposals allow remedies aimed at achieving one or more of three outcomes:

• increased business compliance with the law;
• improved redress for consumers affected by the breach (enforecement);
• more confident consumers who are empowered to exercise greater consumer choice,

can impact employers and staffing issues in a number of ways,

The consultation considers whether implementation of the Regulatory Enforcement and Sanctions Act 2008 or introducing new remedies under Part 8 of the Enterprise Act 2002 would be most appropriate. Part 8 currently allows for court-based Enforcement Orders which can be used to stop a business behaving in a particular way.

The proposals in this consultation form part of a proposed wider reform of consumer law, intended to simplify and clarify consumer law to reduce business compliance costs and empower consumers. Implementation of the proposals would require primary legislation, which we propose to do via a proposed Consumer Bill of Rights.


http://www.bis.gov.uk/Consultations/civil-enforcement-remedies-consumer-law?cat=open

 

Lack of woman at the top, HR to blame?

There are many ideas about advancing minorities and women further along the career ladder and recently Boston Consulting Group (BCG), a global management consulting firm, have suggested that there some 85% of business leaders see gender diversity as a top priority (with 90% claiming to see a link between diversity and their companies’ success).

I for one doubt these figures.  Why?  Put simply, if business leaders perceived a correlation between diversity and success, then it would have been achieved a long time ago.  That is the essence of business.  Do or die.  So to my mind the figures are probably accurately reported but of dubious value.

I do agree with the reports authors saying “Overall, women are well-represented in the workplace, but the pipeline breaks down somewhere between middle management and the [top].” and when  the report then admonishes human resources profession (politely) by chiding “....the greatest obstacle is the need for each organisation to identify its own glass ceiling,” this being the role of HR, so have HR failed to make the case or have they failed to make the right case?

In a statement BGC do not put the blame just on HR profession, moreover they blame failures squarely at the foot of employers generaly.  Rainer Strack, senior partner and global leader of the HR topic says “The lack of women in leadership positions is primarily a problem of internal talent management; women receive considerably fewer promotions.”Oops, again, is that not back at us HR professionals!

In defence of my own profession, I suspect that company bosses (and perhaps soon the EU) who focus on quotas and targets are, in part, responsible for the failure by business.  I also agree with the report when it suggest that it is useful to identify practises used by companies around the world to develop women.

BCG’s research revealed five overall themes organisations should explore as possible barriers in their own workplaces:

1. A culture of office presence and “face time.”
2. Lack of off- and on-ramping procedures for women who leave and rejoin the workplace.
3. Male-oriented selection criteria.
4. Lack of gender diversity awareness among management.
5. Inadequate management of leadership pipelines.

I would be the first to admit to not having sufficient idea about the feminist agenda (point 3 above) and will increase my reading.  How many others share a similar lack of knowledge?

Before I am branded a nay sayer or misogynist, the report Shattering the Glass Ceiling: An Analytical Approach to Advancing Women into Leadership Roles,

Let me return to my own concerns about targets,  The report suggests that the most popular program offered by BCG’s respondents were women’s networking groups (68 percent), followed by diversity training, mentoring for women and skills training for women (with each program available at 46 percent of companies studied).

However, other programs examined by BCG were far less common:

• Diversity targets for managers (35 percent).
• Role model campaign (25 percent).
• Job-sharing in management (25 percent).
• Financial incentives linked to diversity (22 percent).
• Targeted recruiting for female talent (17 percent).

Well, we know that these help (or at worst perpetuate) but they certainly do not fix the issue: it remains.  So a more radical shift is required.

"Organisations cannot focus merely on having the right number of women in the workplace," according to Shirley Engelmeier, author of Inclusion: The New Competitive Business Advantage (InclusionINC Media, 2012). 'They must also make sure that women’s voices are heard throughout the organisation. Because women often aren’t an integral part of leadership, their voices and insights are not heard,' Engelmeier noted.

In the quest for ideas I will be starting with a better look at the so called feminist agenda (male-oriented selection criteria for example) and intend increasing my reading. How many others share a similar lack of knowledge?

Another way to create opportunities for women to prove themselves is the suggested career lattice opportunities—or horizontal career paths and fewer career ladder opportunities.

Before HR practitioners leap for the resignation buttons, There are a number of possible explanations for the choices organisations make, not the least of which is scarce resources.

Strategic Diversity and Inclusion
Therefore, BCG recommends a systematic and strategic approach to diversity management. “It’s not about random percentages or yet another diversity training program,” said Susanne Dyrchs, co-author of the report and a BCG topic expert in diversity and talent management, in a media statement. “It’s about getting a complete grip on how an organisation recruits, retains, and promotes its diverse talent so it can identify its Achilles’ heel in terms of gender diversity.”

“The entire effort has to be viewed and pursued from the top down as an ongoing, cross-company initiative,” the report added.

As Engelmeier says “Women make a significant share of the buying decisions … having [womens’] insights and expertise in key leadership roles is crucial to overall business success.”

Reference: Shattering the Glass Ceiling An Analytical Approach to Advancing Women into Leadership Roles

Do you need a social media policy?

In a recent survey it was found that some 28% of respondents said their employer did not have a social media policy, while 14% did not know whether or not their employer had one.

Examples of problems which can arise from employees' use of social media include: 

• employees spending too much work time on social media sites (in 2009 Portsmouth City Council had to ban Facebook after staff members spent 572 hours on the website in one month, which equated to 71 working days)
• employees using social media sites to criticise their employer or its products
• employees posting material online (e.g. video) which embarrasses the employer or brings them into disrepute either directly or by association
• employees using social media sites to bully, harass or intimidate other employees
• employees using the Internet to publicise things they disagree with the employer about or to spread dissent among the wider workforce
• employees breaching confidentiality or giving away trade secrets online an employer may discover misconduct by an employee as a result of what they have posted online (e.g. photos of them on holiday on days they have phoned in sick)
• where employees are required to use social media for work purposes, what happens when they leave, who owns contacts, content and Twitter tags, for example?
• where employees seek to breach court orders (such as non contact orders in domestic violence cases)
• where employees seek to research illegal, violent or sexual material.

Steps an employer can take

1. Draft (and keep up to date) a social media policy that includes practical guidelines for employees.
2. Communicate the policy to the whole workforce so that everyone fully understands what is and is not acceptable behaviour and appreciates how their use can lead to workplace issues.
3. Once you have a policy in place it is vital that this is enforced consistently and managers should be trained in their supervision.  Ensure that updating is at least annually, avoiding letting an issue being the catalyst for action when it is too late (and tribunals do not take too kindly to ineffective policies).
4. Deploy software that tracks and monitors key words, such as offencive terms in languages that are used at work.

Katy Meevs of law firm Shoosmith recommends that firms allowing staff to use "professional networking or other sites for legitimate work purposes,consider asking them to sign up to special terms regarding confidentiality and post-termination restrictions."

 

Law firm Baker McKenzie have published a FREE and handy guide that covers some of the issues, from around the globe (inclduing UK).

Equal pay, employers now face more risk

This week saw a judgement from the Supreme Court that has the effect of extending the period on employees can bringing equal pay claims against their employers from six months to six years.

The court has allowed this to happen ny permitting claims to be brought through the High Court rather than the Employment Tribunal.
Some analysts are suggesting a flood of claims from both the private and public sectors and the huge cost that that will result.  Of that we have yet to see.  But the opening up of the time period to six years (common in many Health and safety claims faced by employers) does open up the potential for employee who were out of time to now have the potential to make a claim.

Irwin Mitchell employment partner Glenn Hayes commenting in The Lawyer takes a cautious approach suggesting that 'it’s unlikely that many people will have been put off bringing such a claim, or prevented from doing so, by the six-month time limit. However, that’s not to say that there may be some cases which haven’t been advanced which now are able to do so.'
Either way, concerned employers might be wise to audit their pay records and look for potential cases to check for risks.

Is EU set to create talent mountains?

This week saw a major victory in the UK courts that saw many women as being victims of discrimination by a local authority.

Some commentators argue that the only way to achieve true equality is to start at the top and one such is EU Justice Commissioner Viviane Reding who is pushing for a vote on a proposed law which would force companies to keep 40% of positions on their supervisory boards for women. After a minor setback, the vote will now take place 14 November.

One commentator, Pinsent Masons corporate partner Martin Webster is reported in legalweek.com as saying 'Viviane Reding is not giving up, she has significant support in the European Parliament.'

I have always been a keen advocate of getting more women into the Boardroom and have found that once firms identify a talented individual, grasp them regardless of gender. So part of me argues, does the UK really need a law to set a quota?

I see EU countries as each having different needs in this regard, as evidences by the ways in which each state enacts the Directives from Europe. Perhaos this is in recognition of the different cultural ways in which the role of women is viewed and that might run contrary to my own principles. But if this is a country specific issue, then why set a single goal on a pan European basis?

I also question the EU approach from one of competence, I simply cannot think of an EU quota that has actually achieved it's stated objectives without causing demonstrable harm elsewhere. I can already see the future newsheet headlines proclaiming "UK dumps mountains of talent!"

I also agree with those who ask, is Europe sufficiently harmonised enough to be ready for this one size fits all approach to a very complex social issue?

This is not a debate about whether to continue progress but about how to continue the progress but as Stephen Parish (chairman of law firm Norton Rose) asks, do we need "a degree of artificiality?"

On the other hand, I see that women are often not selected and the reason can be obscure, discriminatory, poor recruitment/selection, procedural or just plainly absurd. But those issues are best tackled type by type, as we have set about tackling discrimination.

Few would argue that change is not happening; it is the pace that worries me. In this regard I would say it was not politicians who brought about the vote for women, it was courageous men and women. The same can be said of all discrimination, effective changes comes when minds are changed by those brave enough to speak out converting those brave enough to change for good. That delivers sustainable and meaningful solutions. Not this blunt approach favoured by quata mandarins.

I have one more concern and that is that this entire EU position is one of political

I am a nay sayer on this issue. I say no to quotas but call upon women and those in senior HR roles to keep up that pressure for change at the one place where it matters; the Boardrooms of Europe.

If I was cynical I could even view this as just some political shenanigans within the EU  we will see!



 

Death of Business Link web site

“A new cross-government website Gov.uk has launched making it quicker and easier for you to interact with the government online.”

 

Sadly, the web site replaces the marvellous Business Link site which has been benefit to employers and employees

 

• Contracts of employment and working hours

  Includes types of worker, employee rights, overtime and changes to contracts

     
•  Dismissing staff and redundancies
  
  Resignations, dismissals, disciplinaries and redundancy pay
  
     
•  Health and safety at work
  
  Accidents, health and safety law and workplace conditions
  
     
• Payroll
  
  Paying HMRC, employee expenses and benefits and paying staff
  
     
•  Pensions for your staff
  
  Includes workplace pensions and Combined Pension Statements
  
     
• Recruiting and hiring
  
  Includes discrimination law, apprenticeships and using agencies
  
     
• Statutory leave and time off
  
  Includes maternity and paternity leave, holiday entitlement and sick pay
  
     
• Trade unions and workers rights
  
  Includes industrial action and recognising trade unions
  

Good news for job seekers

At first glance the latest news that retail chains are shutting shops at a rate of more than 30 a day might seem like the worst nightmare for those seeking work in retail but drill deeper and you will find that discount shops and convenience outlets are expanding into UK high streets.

In the first half of the 2012 there were 7% more discount stores in the first six months [net basis] and 11% more payday loan outlets. The same research also reported 11% more bureaux de change, 5% more convenience food stores, 8% more pawnbrokers.

Clearly those looking for careers in retail can benefit from looking beyond the convenience of the high street chains and consider applying to the smaller outlets.  This might also be the time to consider franchising in these smaller outlets

For the cynical job seekers the increase in charity shops (often using volunteer workers) only represented a 1% increase (hardly significant).  To this I add that even where charity shops are expanding their use of volunteer staff, remember regional management and support roles are often salaried jobs and as theses expand so to does demand for new managers, skilled staff and professional advisors.  In addition, volunteer roles can givce you skill and experience.*

Note too in the same report, Mike Jervis of PricewaterhouseCoopers (PwC) encourages retailers to seek more flexible comitments to ensure they can survive in the current market.  I suggest this extends to their employment strategies such as; short term hirers, causal labour, piece rate and training contracts.

Other retial news includes the explosion in online retailing, a potential boon for home workers and entrepreneurs!

And last word, unemployment has fallen to 2.53 million in the three months to August, down 50,000 from the previous quarter, accroding to the latest official figures from Office for National Statistics.

Data source: study of 500 town centres by the Local Data Company for PwC.


* If claiming benefits, voluntary work may reuslt in loss of benefits, so check before applying.

Back to education for the over 35's

I read Fox news are reporting that more and more over 35's are returning to education to increase the skills - good news for educators and the government but the quite rightly argue "With tuition [fees] so high, experts recommend greying workers access their financial and current career situation and create a plan to make sure going back to school makes investment sense.

Not only the cost of fees but consider to the cost of living.  In this country you can receive about £12,000 in state aid and that wont stretch you very far!  What about the impact on your family?

Can skills be acquired part time?  Since the 1990'2 distance learning has taken on a new look and technology means you joined with fellow students and lecturers far more closely that at any time in history.

Last year I took time out and thoroughly enjoyeed the experience, mad enew friends, aquired new skills and learnt I could I could still learn!

Get the few hurdles out of the  way and I say "GO FOR IT!"


Read more: http://www.foxbusiness.com/personal-finance/2012/09/17/what-older-workers-should-consider-before-heading-back-to-school/#ixzz28WkPFwJB

CaseCheck - another free service turning native?

Listening to BBC Radio 4 the other morning I was reminded of the transient nature of research papers and how the internet is opening up the freedom of information exchange; to the benefit of us all.

It is a sad therefore to find that one bastion of free information CaseCheck is migrating to a paid for service.  Is this another free internet service that turns native.  Time for a caselawwikipedia?

Whilst I have often benefited from the comments made by CaseCheck and their advisors, sometimes they make a point that does not need investigation and I simply, other times the service simply flags up a case and the particular facts. Often the timely remind us to examine the underlying facts in detail whereupon the judgement yields insight into employment law that benefits my clients (to say nothing of my own CPD).

One can only hope that the firms retains some comment or analysis for free otherwise I can see no way that the service can offer what is not already available elsewhere. Of course the CaseCheck venture needs financial support, so this is not a case of bah humbug, just anxiety over the potential loss of a hitherto useful aide.  Part of me actaully feels like saying "good luck."

Watch this space for further updates on the currently excellent service from CaseCheck (and I pray it does not fall into the same old consumer offering by commercial firms).

 

Pensions nighmare or wider opportunity for employers?

 

One of the most radical changes to the UK pensions regime in living memory is underway.

 

Under the new automatic enrolment legislation an employer is required to enrol all 'eligible jobholders' (and 'non-eligible jobholders' who opt-in) into an automatic enrolment scheme and pay minimum employer contributions or provide a minimum level of benefits.

Employers must be prepared to comply with these new legal requirements from their 'staging date'. An employer's staging date is based on the number of people in its PAYE payroll scheme on 1 April 2012. An employer can confirm its staging date here. 

 

Employers are to automatically enrol workers who are;

•         not already in a qualifying workplace pension scheme

•         aged 22 or over

•         under State Pension age

•         earning more than £8,105 a year (this figure may change each April) and

•         working, or usually work, in the UK.

Employers are also required;

• to provide information to workers about their new rights,
• to re-enrol eligible jobholders who opt-out approximately every3 years,
• not to take any measures that the ‘sole or main purpose’ of the particular action is to persuade or cause an individual to opt out of or leave their pension scheme, without becoming an active member of another scheme.
• register with the Pensions Regulator soon after the staging date.

The pension regulator has provided a useful tool to help employers work out who is and who is not included.  This can be found here.

 

Planning: Here are a few steps you might wish to consider:

 

How much will it cost employers?

Broadly speaking the minimum employer contribution is 3% (see the employer minimum employer contribution here

Find out when the new automatic enrolment duties will apply

Employers must be prepared to comply with these new legal requirements from their 'staging date' (based on number of employees).  An employer can confirm its staging date on the here.

Note those smaller firms (with less than 50 employees) have staging dates determined by their PAYE reference numbers.

 

You can bring forward staging dates, but these too are controlled, so check the pension website if you want an earlier date.

Identify the workers that will be covered

Employers need to assess which eligibility category each of their existing workers falls into, in order to determine which of their workers will be covered by the new automatic enrolment requirements and to estimate the likely increase in the number of workers participating in their pension scheme and the cost implications of this.

 

Lawyers at firm Eversheds suggest "things can get complicated with agency staff, secondees, consultants and self-employed contractors, all of whom may count as "workers" for the purposes of the legislation." If you are unsure, seek advice!

 

Update payroll and admin systems

Employer's HR and wages systems need to be updated to assess worker's eligibility for automatic enrolment and to ensure that the correct level of contributions are paid at the right times.

 

Employers also need to update employee contracts (written terms/staff handboooks etc) and induction processes to encompass

 
• automatic enrolment,
 
•       optouts,
 
•       opt-ins and
 
•       automatic re-enrolment.

Decide which scheme to use

Does your current scheme comply or do you need to change it?

Employers also need to decide whether they will use the same scheme for all staff or have different schemes for different members of their workforce.

Whichever option you choose, you will need to have the scheme reviewed to ensure that it complies with the qualifying criteria.

Consider the cost implications

To offset costs, employers may wish to make changes to the pensions and other benefits that they offer to their staff. Not as straightforward as one might think, but remember you may be able to negotiate a trade off between one benefit for another

 

Employers may also want to introduce, or extend, salary sacrifice arrangements in connection with the payment of members' pension contributions, to take advantage of the national insurance savings that result from this.

 

Early planning is essential, espcially where negotiations are reuqied.

Prepare an effective communication strategy

Issuing effective and timely communications is essential so that workers understand these changes and what it will mean for them.

 

Employers may find the DWP's language guide helpful when preparing automatic enrolment communications.

 

Appoint somebody to oversee compliance

Failure to comply with the automatic enrolment requirements could lead to enforcement action (which may include a significant fine) being taken by the Pensions Regulator. Therefore, it is important that someone within an organisation is appointed to "own" the issue and oversee compliance.

(Note there are financial and custodial penalties attached to this legislation)

 

'There may be circumstances that are not covered in the tools provided in these links that could have an impact on the decisions or changes you're required to make. For these reasons, you are encouraged  to seek additional guidance or professional advice to ensure that you meet your legal obligations.' - and this advice is from the pensions regulator who provide the tools!

Whistleblowing in an LLP: an antithesis of subordination

Kate Manning from CaseCheck has alerted us to a Court of Appeal (civil) judgement that confirms what many HR practitioners have believed for a while; Partners in Limited Liability Partnerships (LLP) are not employees of their firm but are equal regardless of their contractual arrangements.

Interestingly this case arises from one partner having made some pretty serious whistleblowing disclosure and alleges that they suffered a detriment as a result of the disclosure (section 47B of the Employment Rights Act 1996). The judgement found for the appellant and this places an emphasis on partners being accountable to and for each other!

Much of this case is based around the specific way the Employment Rights Act 1996 defined a worker and the legal, social and contractual complexities of defining what a worker arising from it.  Given the clear nature of this judgement, it is worth considering three points;

"Since the partnership is not a separate legal entity, the parties are in a relationship with each other and accordingly each partner has to be ......both workman and employer which is a legal impossibility."

'In a more sociological context the judgement considers (at length) the legal characteristic that a hierarchical relationship must exists (to some extent or other) whereby the worker is subordinate to the employer. Where the relationship is one of partners, each partner is agent for the other and is bound by the acts of the other and each partner is both severally and jointly liable for the liabilities of the partners.' In other words, "the partnership concept is the antithesis of subordination."

The judgement noted that contractual arrangements between the parties may confer different powers on different groups of partners but these do not the essential nature of the relationship (each partner acting as an agent for, and being responsible for the acts of other partners) places them outside the sphere of employment relations entirely.'

This case has a further sting in its tale; a reminder that employers working abroad may have actual or implied liability under UK laws.  But that is another issue.

Case: Clyde & Co LLP and Anr v Bates Van Winkelhof

Citation: [2012] EWCA Civ 1207

Interested in more on whistleblowing, read Simon Devonshire QC paper on Whistleblowing delivered at the  LexisNexis Conference:  here

Exective job search: tip from HHJ Anne Molyneux

I recently had good reason to read the background of HHJ Anne Molyneux and read her comments on applying for a senior role as circuit judge, and her advice rings true for many senior roles.

".....You have to force yourself to fill the form in properly. It can be very challenging and difficult. My advice is to take a couple of days off. Go to a library or quiet place away from home or the office. Do one question. Then have a treat, be that a walk, coffee or cake. Go back to the library and complete another question. Repeat the process until you have finished the form."

She then continues 'do not send it in until you have asked a couple of trusted friends to look at it with you.'

Finally she remarks "you have to put as much energy and effort into it, as if it was your thesis and provide evidence of your abilities. You can't just think 'I really want this job'.

Of course the selection process has moved on in ten years.  Before you might expect to complete a form and attend an interview.  Now you have those basics PLUS and assessment centres or psychometric tests, but her advice holds good for the start of the process and the mantra "You can't just think 'I really want this job" You have to make it happen!!

Government plans to change compensation

Ending the employment relationship

Open date: 14 Sep 2012

Closing date: 23 Nov 2012

 

The GOVERNMENT sseks to consult on on ways to support the use of settlement agreements and changes to the compensatory award limit in unfair dismissal cases.

 

The consultation covers two areas:

• Ways to encourage the use of settlement agreements as a means of coming to a consensual agreement, allowing both parties to avoid the costs and stresses of a tribunal case;
• Changing the limit of the compensatory award in unfair dismissal cases to give employers more certainty about their potential liability and give employees more understanding of the value of unfair dismissal claims.

 

 

EU to boost protection for those working abroad

Boosting protection for workers posted abroad European Employment and Social Affairs Committee MEPs are looking at new regulations to boost protection for workers posted abroad.

To proposals  are designed to bolster the current framework (based on 1996 Directive) which defines a core set of employment conditions which the service provider must comply with in the host member state. However, MEP's claim the provisions create legal uncertainties and may even hamper the posting of workers within the EU!

The term "worker" in the EU often includes those with contract of service and contract for services as well as other categories of self employed worker. They define "a posted worker" as one who is employed in one EU Member State but sent by his employer on a temporary basis to carry out his work in another Member State.

This category does not include migrant workers to go to another member state to seek work and are employed there but note where an employment agency is involved, the Directive applies and the agency has additional liabilities in respect of the worker.

Broadly, the proposals aim to:

• set more ambitious standards to inform workers and companies about their rights and obligations;
• establish clear rules for cooperation between national authorities in charge of posting;
• provide elements to improve the implementation and monitoring of the notion of posting to avoid the multiplication of "letter-box" companies that use posting as a way to circumvent employment rules;
• define the supervisory scope and responsibilities of relevant national authorities;
• improve the enforcement of workers’ rights, including the introduction of joint and several liability for the construction sector for the wages of posted workers as well as the handling of complaints.

We will watch this space on the new EC proposal

Read the European Parliament press release here.

Website of DG EMPL on the posting of workers here

Credit:
Thanks to CaseCheck for picking up on this news release.