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Employers Update - April 2013
Welcome to the latest edition
of Employ!
It has
been an eventful month at
Taylors; the team has
received a number of new
instructions from existing
and new clients and our new
recruit, Rachel, has timed
her arrival well as there’s
already plenty to keep her
busy!
If this
update picks up on any
issues you are experiencing,
or indeed if you have any
other employment concerns or
queries you would like to
discuss, please do not
hesitate to get in touch on
0844 8000 263 or
email
me.
Best
wishes
Will Clayton
Partner & Head of Employment
Key
Employment Team Contacts:
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Rachel
Charlton
Assistant
Solicitor
Email Rachel
0844 8000 263 |
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In This Edition:
Employ! Email
Updates
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There is
nothing more rewarding than
hearing from our clients that we
are doing a good job!
Taylors has a
longstanding relationship with
Voith, a German-owned company,
who “cannot recommend Taylors to
other employers enough”. The
company employs more than 40,000
people worldwide, generates €5.6
billion in sales, operates in
more than 50 countries and is
one of the largest family-owned
companies in Europe. Taylors has
acted for Voith’s paper
manufacturing UK division, which
is based in the North West of
England, since 2004, providing
corporate and commercial,
litigation, property and
employment-related legal advice.
The firm is
instructed by Voith on a wide
range of commercial issues, with
the employment team giving
advice covering everything from
Trade Union issues to Employment
Tribunal claims on an
international backdrop.
Charlotte Cleary
recently joined Voith as a
Senior HR Advisor and recently
required assistance with a
Tribunal claim for unfair
dismissal.
On receipt of
the Tribunal instruction, Emma
Swan prepared a costs warning
letter to send to the
ex-employee. This letter put the
individual on notice that it was
unreasonable for her to continue
with her claim and that if she
did, the Company may pursue her
for payment of its legal costs.
The letter had the desired the
effect and the claim has now
been withdrawn in response.
Emma’s prompt input saved our
client further legal fees in
having to defend the Tribunal
and all the associated HR and
management time and energy. A
great result!
Charlotte
comments that Emma is “always
approachable, commercial and
very robust and as well as
offering sound employment
advice, manages to respond to
queries in excellent time to
achieve optimum results for the
business”.
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Will Clayton has recently been asked
to advise a number of clients in relation to
potential security breaches by ex-employees
which threaten highly sensitive information,
central to the running and success of the
business.
One of the cases involved a senior member
of staff, Mr X with responsibility for key
client relationships. Will’s client had
reason to believe that Mr X had taken a
database of contacts with him when he left
the Company which was highly confidential
and valuable to our client’s business.
Mr X commenced work for a competitor but
had not returned his Company laptop. It then
came to light that he was maybe using our
client’s information to contact former
customers for the purpose of his new
employment.
Will received urgent instructions at
lunchtime on the day the potential security
breach came to light. He promptly prepared a
robust letter before action to Mr X setting
out the evidence and alerting him to the
fact that he was believed to be in breach of
provisions in his Contract of Employment and
the Compromise Agreement that he had entered
into on termination. Will also sent a letter
along similar lines to the new employer. Mr
X and the new employer were put on notice
that our client was considering taking
immediate legal action to protect its
interests and required all parties to enter
into undertakings to confirm that they would
return any confidential information and
company property and not commit any further
breach. The letters were received by Mr X
and the new employer the same day.
Within 24 hours of the breach coming to
light, the new employer made contact with
Will via the company’s Solicitor and
confirmed that they had sent Mr X home in
order to investigate the allegations and
that they would enter into the undertakings
requested by Will to avoid legal action. Mr
X has also agreed to return his laptop.
Action against Mr X is ongoing.
What do I need to know?
You will find that well-drafted garden
leave and post termination restrictions in
your contracts of employment will maximize
your chances of being in a position to act
against ex-employees who leave the Company
and threaten to damage your business by
working for a competitor or misusing
confidential information in this way.
Legal action to seek to enforce restrictions
is a complex and expensive business and the
speedy and effective strategy adopted in
this case was a proportionate and commercial
means of achieving the desired result. We
would be happy to help if you would like any
assistance with reviewing or drafting
provisions in your employment contracts or
advice in relation to an ex-employee. |
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Emma Swan is rolling out interactive
and practical training on a number of key
areas in Taylors’ Workshop Programme.
This Programme is aimed at HR
professionals and members of the operational
team who are handling these issues on a
day-to-day basis. We only have a few spaces
left for the April session so sign up now if
you are interested or get in touch with Emma
if you have any queries about the Programme:
15 April – Handling grievance
investigations, hearings & appeals;
17 June – Dealing with performance
management issues
12 August – Dealing with absence
management issues
14 October – Handling redundancies
9 December – Discrimination awareness
Venue: East Lancashire Chamber of
Commerce
Time: 9am to 12 noon
Cost: £75 + VAT per session
Taylors’ client, Micromatic Limited sent
a number of its HR and Operational Managers
to the workshop Emma ran in 2012. Micromatic
is a European-based business who the firm
has been working with for many years.
The feedback from Micromatic was that the
course was a great investment and one of
their attendees reported that it provided “clear
and simple examples of various issues”
and was "an effective learning tool". |
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Keep an eye on the numbers – new
statutory payment rates to be introduced
- From 6 April 2013 – Statutory Sick
Pay will increase from £85.85 to £86.70
with the weekly earnings threshold
rising from £107 to £109; and
- From 7 April 2013 – Statutory
Maternity Pay, Statutory Paternity Pay
and Statutory Adoption Pay will increase
from £135.45 to £136.78. The weekly
earning threshold will rise from £107 to
£109
Can convert recordings
taken by employees be relied
upon in Tribunal?
Yes. This is an eventuality that many
employers find distasteful but a recent case
involving an employee who had taken 39 hours
of covert recording in support of her
discrimination complaint makes clear that
covert recordings are not inadmissible
simply because they are taken in a
discreditable way.
If an employee lodged a focussed
application to the Tribunal and provided a
transcript together with the recording which
could be heard and verified by the employer,
relevant material may be admitted in the
interests of justice.
What do I need to know?
Don’t be too quick to discount any covert
recordings which come to light in the
context of litigation as they could be heard
and considered by the Tribunal.
Employment Tribunal Reform
The Government has announced that the new
Employment Tribunal rules will come into
force in Summer 2013 and not April 2013 as
planned. The final rules are due to be
published in May 2013 and the following key
developments are expected to take effect
this year:
- Summer 2013 - Compensatory award in
unfair dismissal cases to be capped at
the lower of one year’s pay and the
existing limit; and
- Summer 2013 - Fees – a two-stage fee
structure will require Claimants to pay
a fee when their claim is issued and a
subsequent hearing fee if the claim will
proceed to a full Tribunal hearing.
Tribunal Judges will have discretion to
order the unsuccessful party to
reimburse the fees paid by the
successful party.
What do I need to know?
There is no change to the current system
as yet but any existing employees with a
gripe may look to lodge discrimination or
unlawful deduction claims prior to the fees
and new compensation cap being introduced in
the Summer.
Thereafter, these changes may redress the
balance so that employees bear some
risk/cost in order to bring claims against
their employers and they may think twice
before doing so.
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I am an HR manager in a public sector
organisation. One of our employees has
submitted a sick note citing the reason for
absence as taking time off to care for her
husband who has had a heart attack.
The initial HR steer has been to
honour the absence in view of the medical
certificate but I would like to check this.
We have a generous sick pay scheme for three
months’ full pay followed by 3 months’ at
half pay and this absence could be costly
for our organisation.
The employment team says...
You are right to query this. If the
medical certificate clearly confirms that
the reason for the absence is to care for
her husband and it appears that the employee
is fit for work, you have grounds to
challenge the absence.
We recommend that you invite the employee
to a meeting to discuss the medical
certificate and the reason for her absence.
If she confirms that she is fit for work and
there are no issues with her health, you
should suggest that in the circumstances,
she is unlikely to qualify for contractual
sick pay. You could therefore suggest that
her options are:
(1) for the employee to return to work;
or
(2) for the employee to continue with a
period of leave but that it will be unpaid.
You should be aware that employees are
entitled to emergency leave in relation to
dependants who are ill or injured. However,
time off in these circumstances is for a
reasonable time in which to make alternative
arrangements for replacement care, and does
not give a right for employees to take time
off in order to provide the care themselves.
Plus, there is no statutory obligation for
this leave to be paid. This is something to
watch out for if you have employees with
caring responsibilities for young children
or elderly relatives.
If you have any queries in relation to
this problem or a question that you would
like to ask the team and share with our
other readers, please send it to us and we
would be delighted to use it in a future
edition of Employ! |
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Copyright 2006 - 2013 Taylors Solicitors
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