What can employers do if demand for annual leave is high?

If demand for annual leave is high, employers could consider whether to allocate time off on a first come first served basis or draw lots.  You should take care to ensure that requests for leave are dealt with fairly and consistently to minimise allegations of discrimination.  Employers can reject requests where the correct procedure has not been followed or where leave cannot be granted for legitimate business reasons.

How about dealing with holiday requests at the last-minute?

The procedure for taking time off is usually set out in a staff handbook or else is customary in the workplace.  If you have no set procedures whether in writing or not, the default provisions under the Working Time Regulations will apply.  Under the Regulations, employees need to give at least twice as much notice of the leave they wish to take, e.g. 2 weeks’ notice for a week’s annual leave. 

What about the potential surge in employees using the network for internet coverage of the Games?

Employers should review their rules and/or IT policy and consider whether it is simply a case of reminding employees of the rules and the consequences of breaking them or whether specific rules need to be introduced for the duration of the Games.  In either case, the rules should be clear and consistently applied.

What about employees pulling ‘sickies’?

If an employee does not turn up to work without good reason then employers would be entitled to deal with the matter under their disciplinary procedures.   Employers are advised not to jump to conclusions without evidence of their suspicions.  Remember that you cannot ask for a doctor’s certificate until after the 7^th day of sickness.   If there is evidence that sickness absence is not genuine then that can be dealt with as misconduct.

What if national pride surfaces in office banter?

Employers may need to remind employees of their equal opportunities policies and that unlawful harassment will lead to disciplinary action.

The intention of the reforms is to give users the ability to ‘opt-in’ to cookies, replacing the previous ‘opt-out’ system.  The Information Commissioner’s Office (ICO) recognised that some time would be required for organisations to put their websites in order, but the enforcement deadline of 28 May is looming.

With little time remaining, recently published research from Truste reports that a user’s hard drive could face up to 140 cookies and related files in browsing a single website!  95% of organisations surveyed by KPMG were not compliant with the cookie law at the end of March.

Crucially for the organisations which were subjects of the Truste research, over two-thirds of the cookies identified belong to third parties (such as advertisers) rather than the site’s owner.

Protect your Business

The penalties for failure to comply with the rules could result in a fine of up to £500,000, not a cost that many businesses could take in their stride.

If you are concerned that your business’ website may not be compliant you should consider adopting a ‘Cookie Policy’ or reviewing your current one as well as making sure that you comply by:-

• advising users that cookies are potentially in operation on your site;
• explain what cookies do; and
• obtain users’ consent to the storage of cookies on their hard drive.

There are different ways of achieving this outcome, and we can help you devise compliant practices.  If you would like professional advice about these matters please contact us at 01382 229222.

The claimant ceased to be a partner on 31 December 2006.  He brought a claim alleging, under the Age Regulations (which have since been repealed but substantially re-enacted under the Equality Act 2010) that his forced retirement was an act of direct age discrimination.  There was no dispute that the compulsory retirement age was direct age discrimination.  The issue was whether it could be justified as a proportionate means of achieving a legitimate aim.  The employment tribunal considered so and dismissed the case.  Mr Seldon appealed the case all the way to the Supreme Court.  The Supreme Court held that the law firm was entitled to set its own retirement age and considered that its objectives of allowing promotion opportunities for younger solicitors by succession planning were legitimate.

The influential judgment will be welcomed by employers looking at whether they can set their own retirement ages at a time when many older workers delay retirement because of shrinking pensions.  However, the judgment still leaves open the big question of whether 65 (or any other age) would be a justifiable retirement age across the board.  Whilst in Mr Seldon’s case, the firm may have been justified setting a retirement age for positions at the top of the firm on the grounds of succession planning, the Court would probably have come to a different conclusion if Mr Seldon had been a junior employee in a sedentary role.  Employers will have to consider the specific factors of each case.

A second highly significant age discrimination judgement was also published on 25 April.  The claimant, a former policeman who worked as a legal adviser for the Police National Legal Database, claimed that he was indirectly discriminated against because of new rules that employees needed a law degree to get on the highest pay grade.  The claimant was aged 62 at the time and had been due to retire at 65 making it impossible for him to gain any increase in pay from the degree before he retired.  The Supreme Court held that the pay rules constituted indirect discrimination.  The question of whether they were objectively justified was remitted back to the employment tribunal.  The case highlights a need to review benefits offered taking into account their value for older workers compared with younger workers.

Cases referred to: Seldon (Appellant) v Clarkson Wright and Jakes (A Partnership) (Respondent) and Homer (Appellant) 2012 v Chief Constable of West Yorkshire Police (Respondent) 2012

Judgements at http://www.supremecourt.gov.uk/decided-cases/index.html

Under the previous system, employers were obliged to report to the Health and Safety Executive (HSE) any injuries at work which resulted in the worker being absent from normal duties for more than three consecutive days. Under the new system, employers are only obliged to report injuries to the HSE when the worker is incapacitated for seven or more consecutive days (not including the day of the accident). Incapacitation means that the worker must be absent or unable to do work that they would reasonably be expected to do as part of their normal duties.

The change will align the reporting system with the current ‘fit note’ system which requires someone who is absent from work because they suffered a reportable injury to provide a medical assessment. Ministers claim that the change will reduce the number of incidents which must be reported by around 30% which will in turn save business an estimated 10,000 hours per year.

Employment Minister Chris Grayling stated “We want less red tape for business… We are freeing them from the burdens of unnecessary bureaucracy, while making sure serious incidents are properly investigated”. According to Judith Hackitt, Chair of the HSE “The change to the RIDDOR regulations will cut paperwork, help employers manage sickness absence and ensure that the reporting system is focused on risks which have resulted in more serious injury”.

A further change is that the timescale within which employers must report such an accident to the HSE is extended from 10 to 15 days. Employers are responsible for keeping a record of all injuries resulting in more than three days of absence.

This requirement remains unchanged and it is therefore still important for employers to log such injuries in some form of accident book.

Where an employer proposes to make 20 or more employees redundant within a period of 90 days or less, it must consult on its proposal with representatives of the affected employees. 

When should such collective consultation commence? 

The legislation states that this obligation to consult must begin “in good time.”  The Advocate General recently provided some guidance as to the meaning of this legislation. 

What were the circumstances surrounding the Advocate General’s recent guidance?

Ms Nolan was employed at a military base in Southampton.  A decision to close the base was communicated by the Secretary of the US Army on 13 March 2006.  This decision was reported by the British media on 21 April 2006.  The commanding officer of the base apologised to Ms Nolan and others at a meeting on 24 April 2006 for the way in which the news about the closure had been made public.  The US authorities advised the workforce representatives on 14 June 2006 that the starting date for the consultations had been 5 June 2006. 

What was the question put to the Advocate General? 

Does the employer’s obligation to consult about collective redundancies arise:

1. when the employer is proposing, but has not yet made, a strategic business or operational decision that will foreseeably or inevitably lead to collective redundancies; or
2. only when that decision has actually been made and the employer is then proposing the consequential redundancies? 

What was the Advocate General’s response?

Neither.  The Advocate General has stated that an employer’s duty to conduct consultations with the workers’ representatives arises when a strategic or commercial decision which compels it to contemplate or to plan for collective redundancies is made by a body or entity which controls the employer. 

Does this recent guidance assist employers in understanding the legislation?

In Ms Nolan’s case, the decision to close the base was made by a separate entity from the direct employer which slightly limits the usefulness of this guidance for employers who are not governed in this way.  However arguably this does suggest that employers do not require to consult with the workforce when reaching the commercial decision as to whether to close the business and, instead, the requirement to consult only commences after this decision has been reached. 

Nevertheless this guidance does indirectly reinforce the requirement for an employer to meaningfully consult with its workforce during a redundancy process.

The first tenancy deposit scheme to be approved is the Letting Protection Service Scotland. Two further schemes are also being considered with the intention of starting all three schemes, which will operate across Scotland, from 2 July 2012.  In order to provide landlords with time to prepare, the legal requirements to submit deposits into a scheme will come in to effect from November 2012.

Once in place, landlords or their agents must pay deposits to an approved scheme and provide their tenants with key information about the tenancy, the deposit and the scheme which is protecting it. The schemes will be free to participate in and will provide access to a free and independent dispute resolution service.

Please refer to my previous articles for a more in-depth discussion of what this all means for landlords and tenants.

http://blackaddersbusinesslegalnews.com/2011/05/04/the-tenancy-deposit-schemes-scotland-regulations-2011/

In February 2012 a draft of the Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 was released. The effect of this legislation will impact on all employees who commence employment on or after 6 April 2012. For such employees the qualifying period of continuous employment for unfair dismissal claims will increase from one year to two years. Any employees whose period of continuous employment commenced on or prior to 5 April 2012 will be subject the old one year qualifying period.

There has been mixed reaction to this. The Government hopes that the number of unfair dismissal claims will decrease by approximately 2000 per year and that this will save businesses an estimated £6 million per year. Employees with less two years’ continuous service will be more vulnerable to dismissal without the employer following the appropriate procedure. Some fear that the change will result in a ‘hire and fire’ culture.

The change will no doubt result in an increased number of employees attempting to shoehorn unfair dismissal claims into discrimination or whistleblowing jurisdictions where there is no qualifying service requirement. For diligent employers who make use of probationary periods and dismiss poor performers relatively quickly the change might not make much difference. However, the increase in the qualifying period certainly allows more time within which an employer can assess new employees before deciding whether or not to retain them. The change might also act as an incentive for employers to select employees with less than two years’ service for redundancy ahead of those with longer service whose dismissal would be more costly because of the need to make statutory redundancy payments (but employers will still need to be careful to avoid age discrimination towards younger employees who are more likely to have shorter service).

A further change which came into force on 15 February 2012 is an increase to the maximum employment tribunal deposit order from £500 to £1000. If an employment judge considers that a claim has no reasonable prospect of success, the tribunal rules of procedure allow the judge to order the party concerned to pay a deposit. This is essentially a payment to allow that party to proceed with the case. If the claim is not successful, the deposit is not refunded.

There is a further significant change on the horizon. The Government is currently consulting on proposals to introduce a fee structure into the Employment Tribunal system. The proposals are aimed at encouraging early resolution of workplace disputes and shifting some of the costs associated with the system from the taxpayer to those who use the service.

Bringing a claim is currently free of charge. This is different from the position with ordinary court actions which involve a lodging fee (and further fees at each stage of the procedure). The consultation is seeking opinions on two separate charging options but makes it clear that the concept of fees being introduced is not up for discussion. The first option involves payment of an initial fee at the point when a claim is lodged (the amount of which will depend upon the nature of the claim and would be between £150 and £250). Option 1 would also involve a second charging point shortly in advance of the hearing (again the level of fee would be based on a sliding scale depending upon the nature of the claim from £250 to £1,250). The second option involves one main fee to be paid by the claimant at the time a claim is lodged irrespective of whether the claim progresses to a hearing. This fee would depend upon the nature and value of the claim and could range from £200 to £1,750. The second option would also involve a higher level of fee for those seeking to recover in excess of £30,000. Both options allow for the successful party to recover any fees paid from the unsuccessful party. The consultation period closes on 6 March 2012. Fees will not be introduced before 2013-14 so watch this space.

The European Commission has issued proposals to strengthen and simplify the existing data protection laws that apply across the European Union.  The intention is to boost Europe’s digital economy by reviving consumer confidence in their online privacy rights.  Introduction of a ‘one-stop shop’ for data protection is proposed to achieve that outcome by replacing the current fragmented and differing systems in each country.

As well as giving consumers greater uniformity of protection, the proposals will save business an estimated €2.3 billion a year in administrative costs.  While business will certainly welcome a standard approach across the EU, there will also be a concern to ensure that the desire to boost consumer confidence in online privacy rights does not detract from the efficient use of personal information for legitimate purposes.

The key reforms proposed include:

• A uniform set of rules across the whole EU. Removing legal uncertainty and inconsistency across Member States, volumes of paperwork for businesses and overcoming a disincentive and cost to expanding businesses into new areas of the Single Market;
• Companies will deal with a single national Data Protection Authority (DPA) in the EU Member State where they have their principal place of business, the DPA’s decisions will be binding across the EU area;
• Serious breaches, such as theft or accidental release of data, should be reported to the DPA within 24 hours (if feasible) and to individuals without undue delay; and
• Individuals to give explicit consent to data processing or reuse and they will have greater rights in terms of transferring personal data between service providers and deleting data which is no longer required

However, these proposals are only as good as the enforcement they receive (if they become law). DPAs will have stronger investigative and sanctioning powers, including the ability to fine up to €1m or 20% of global turnover of the company for breaches.

For companies which operate branches outside the EU, but contract with individuals within the Single Market, or process their personal details outside the EU, it is proposed that Binding Corporate Rules are introduced to ensure uniformity of protection, regardless of organisations’ internal arrangements.  BCR will be approved by one DPA only and considerably simplify the process.   

As with any EC legislative proposal, it will be years rather than months before the proposals are consulted upon, amended, voted upon and implemented.  However, the proposal does provide some hope that the regulatory burden on businesses trading across Europe may be eased somewhat in the future.

We will keep you updated with data protection developments, in the meantime if you would like professional advice about any of these matters please contact us at 01382 229222.

Dates: Tuesday 6th March to Thursday 8th March 2012

Format: A series of one-hour topical law seminars

Times: The first session each day will commence at 8.30am and the last session will conclude at 4.30pm (6pm on Thursday 8th March)

Venue: Dundee & Angus Chamber of Commerce, City Quay, Dundee

Cost: FREE*
(*Any booking cancelled with less than three full working days’ notice will be subject to a cancellation fee of £10+ VAT)

Seminar programme:

• Absence Management: Curing your sickness headaches
• Capability: Default retirement age
• Fire Safety
• Health & Safety: How safe are your premises?
• Is there still no such thing as a free lunch?: The Bribery Act 2011
• Latest Developments in Discrimination Law: Key cases explained
• Successful Debt Recovery Strategies
• Survive & Thrive in 2012
• Twitter and Facebook: Threat or opportunity?

Click here for seminar descriptions and dates and times.

The format allows you to attend the sessions that are most important to you and because each seminar will run twice over the course of Law Week, you have double the chance to get to the seminars you want. Law Week will conclude with a Panel Session to give you the chance to ask questions on topics and issues not covered in the individual seminars.

Law Week is open to DACC members and non-members. Places will be offered on a first-come, first-served basis and if demand is high, may be limited to one person per organisation. So, don’t miss this unique opportunity to get all of your law questions answered in one place at one time.

Register here and make sure of your place.

From 1 January 2012, charitable companies will be able to convert to SCIO joining the various new charities on the register which have had the right to incorporate as SCIOs since 1 April 2011.  When we last checked, there were 58 SCIOs registered at OSCR, ranging from citizen’s advice bureaus to after school care centres to neighbourhood watch groups.  So what makes the SCIO an attractive vehicle to new and existing charities? 

For new charities, the SCIO vehicle, like the charitable company, brings separate legal personality for the organisation.  That means that the charity can hold property, enter into contracts, sue, be sued and employ staff in its own name rather than in the name of its committee members or trustees.  Existing companies may choose to convert to SCIO to be subject to the lighter regulatory regime.  However, all charities are different and it is important for each charity or proposed charity to consider its individual circumstances in order to decide upon the most appropriate legal status.

Something worth noting is that a SCIO’s members are under a duty to try to ensure that the organisation acts in a manner which is consistent with its purposes.  Whilst company directors and charity trustees are under similar duties to their organisations, their ordinary members are not.  An active membership may be a reason to choose to incorporate as a SCIO.  Other reasons include where the organisation has contractual or employment commitments and where the charity trustees require protection from personal liability. 

If you have any questions or would like further advice on SCIOs, please contact Sarah Winter in the Charities Team on 01382 229222.