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Employers Update - August 2013

Welcome to the August edition of your Employ! newsletter.

In this edition, we will update you on the changes to the employment tribunal system which have been introduced literally in the last few days so are very much “hot off the press” and discuss the introduction of the controversial Employee Shareholder arrangements, which will come into force in September. A

nd for those of you with staff who have been complaining about working in the recent heatwave, we’ve guidance that you will undoubtedly find to be of use!

As ever, if you have any employment concerns or queries that you would like to discuss, please do not hesitate to get in touch with us on 0844 8000 263 or by email.

Best wishes

Will Clayton
Partner & Head of Employment

Key Employment Team Contacts:

Will Clayton Elaine Hurn Emma Swan
Will Clayton
Head of Employment
Email Will
0844 8000 263
  Elaine Hurn

Email Elaine
0844 8000 263
  Emma Swan
Senior Associate

Email Emma
0844 8000 263




In This Edition:

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Changes to the Employment Tribunal System: 29 July 2013: Update

There are a number of important updates to tell you about on the Tribunal Fee Regime, which came into force on Monday 29 July 2013.

The key points of note are:

1.  The Ministry of Justice has published a number of leaflets that can be accessed online explaining Employment Tribunal fees for individuals, for groups and multiples, Employment Appeal Tribunal fees and a helpful Stakeholder Factsheet.

2.  UNISON’s Application for Judicial Review of the Fee Regime has been refused on paper, it seems on the grounds that it has no reasonable prospect of success. Unsion has requested an oral Hearing that was heard on 29 July 2013 and we await information on the outcome of it.

3.  In the meantime, an Application for Judicial Review has been made by Fox & Partners in Scotland in relation to the new Tribunal Fee Regime. An Application had been made in Scotland for an Interim Interdict, which would have stayed the implementation of the Tribunal Fee Regime if it had been granted, but it was refused. The Scottish Court’s principal reason for the refusal was that the Lord Chancellor had given an undertaking that any Tribunal fees paid after 29 July will be repaid if, at a full Hearing in (probably) October, the Court decides the Fees Regime is unlawful.

The Lord Chancellor has also conceded that a ruling by the Court of Session in Scotland will bind the whole of the UK and the Government made three further concessions in the open Court as follows:

  • one fee is due for multiple appeals in the EAT (the drafting of the Fees Order had suggested one fee per Appellant);

  • preliminary Hearings will not warrant any Hearing fee;

  • equal pay claims fall into “Type A” claims (triggering the lower fee level and this is a drafting error that will need further legislation to correct it).

4.  The new ET1 and ET3 Forms, which must be used after 29 July 2013, should now be available online and if you have received a Tribunal claim prior to 29 July 2013 with the old ET3 Form but the ET3 Form is only due to be filed on or after 29 July 2013, you should check that you use the correct new ET3 Form.

If you have any particular queries about any of these changes, please get in touch.

Employee Shareholders: Commencement Date Announced

It has been announced that Employee Shareholder arrangements will come into force on 1 September 2013. The new type of employment status is set out in Regulation 2 of the Growth and Infrastructure Act 2013 (Commencement No. 3 and Savings) Order 2013 that provides a new section 205A of the Employment Rights Act 1996.

The section creates a new type of employment status, where employees give up a bundle of employment rights (most importantly most unfair dismissal claims and statutory redundancy payments) in exchange for an award of shares worth at least £2,000.

There are several safeguards, including a right to a statement detailing the shares, a requirement for the employee to take legal advice and a 7 day cooling off period.

The law in this area is complex and important. If your company is giving consideration to this new type of employment status, you should take legal advice on the implications of it to the company and the impact on employment rights.

 Taylors is a commercial firm and the Employment team works closely with our Corporate department, so please do not hesitate to contact us if you require further advice on this new opportunity for businesses.

Financial Penalties on Employers

Provisions relating to financial penalties on employers are to be introduced in respect of any Employment Tribunal claim presented on or after 25 October 2013.

Here’s what they say…

Where an Employment Tribunal concludes that an employer has breached any worker’s rights (note: worker, not employee), and considers that the breach has any “aggravating factor”, then it may order the employer to pay a penalty to the Secretary of State (not to the employee!) of between £100 and £5,000. Like a parking fine, the penalty is halved if paid within 21 days of the Tribunal’s decision being sent to the employer.

There are complicated rules if more than one claim is involved and considerable debate over what an “aggravating factor” is. As you know, Taylors’ Employment Team is heavily involved in Tribunal litigation and we will be keeping a close eye on how financial penalties on employers work in practice.

If, after 25 October 2013, any of you have the unfortunate situation that you are issued with a financial penalty, then we would be very interested to hear more from you as this new area develops.

Sick Notes and Sickness Absence: Guidance

The Government has recently published new Guidance on Fit Notes, which can be accessed on the Department for Work and Pensions website. The new Guidance is for employers, GPs and employees. Its stated aim is to ensure that Fit Notes are used to their “full potential”.

The underlying, strong message in the Guidance is that not working is bad and that a return to work of some sort is the absolutely desired outcome.

The Guidance for GPs contains the core message that “most people with common health problems can be helped to return to work by following a few basic principles of healthcare and workplace management”. In this context, the Government wants better use of Fit Notes and more focus on what the employee can do to assist the return to work process.

The key messages are:

  • The GP assessment should be general and not job specific. This is intended to ensure that GPs concentrate on the patient’s functional capacity and limitations, and deals with concerns raised by GPs (and others) about their lack of knowledge and skills to assess specific work-related activities. It is also one of several signals that even in cases where the adjustment duties under the Equality Act are not engaged, the employer (and employee) should be flexible in their approach to what work a person can do when they are sick or suffering from a disabling condition as part of the general approach of getting everyone back to work as soon as possible.
  • If the GP assesses that the patient’s fitness for work is not impaired by a health condition, then he or she is fit for work and should not be issued with a Fit Note.
  • A Fit Note is not required if the person is fit for work and there is no option for the employee to be signed back to work. So, if as the employer you require this type of evidence, it has to come from someone other than the employee’s GP.
  • Where the Fit Note indicates that the individual “may be fit for work” but the employer and employee cannot agree appropriate changes to that work, then the employer may treat the Fit Note as if it says “not fit for work”, and the employee should not be asked to get a new Fit Note from his or her GP.
  • The employee is free to return to work at any time, including before the end of the Fit Note.
  • The original Fit Note is issued to the employee and should be retained by him or her.
  • The Fit Note is not binding on the employer. This means that the employer can make its own decision about whether the employee is or is not fit for work, may gather its own evidence to that end and give it precedence in respect of any decision, including about sick pay.

If you are keen to develop your understanding of absence management, then you may be interested in joining is at the next training session in the Taylors’ Employment Law & HR Training Workshop Programme, which is being held on 12 August at East Lancashire Chamber of Commerce.

The topic is dealing with absence management and we have the last few places remaining. The cost of the three hour training session is £75.00 plus VAT per delegate which includes all training materials. If you would like further information, please contact Emma Swan.

Sickness Absence and Holiday Pay: Case Report

The Employment Appeal Tribunal (“EAT”) recently considered the question as to whether additional annual leave can be carried over into another holiday year in the absence of an agreement between an employee and an employer.

The EAT in the case of Sood Enterprises v. Healey said that it cannot.

Mr Healey was off work sick for a year and a half when he resigned. The EAT held that unlike “ordinary annual leave” (which was the original four weeks annual leave provided for by Regulation 13 of the Working Time Regulations 1998), any additional annual leave (the extra 1.6 weeks provided for by Regulation 13A of the Working Time Regulations 1998) cannot be carried over unless there is an agreement in place betw een an employee and an employer. In Mr Healey’s case, there was not such an agreement.

In other words, when an individual is on long term sick leave, only four weeks annual leave carries over automatically and not the additional 1.6 weeks granted by UK law, which exceeds the European minimum of four weeks annual leave.

Careful consideration therefore needs to be given to any requests that you may receive from an individual on long term sick leave to carry over holiday leave.

Your Questions Answered

Some of the staff have been complaining about working in the hot weather and they say the office is “warm and uncomfortable”. The company has agreed a casual dress code during the hot weather, but is there a maximum temperature beyond which staff should not be expected to work?

The short answer is No.

However, the Workplace (Health, Safety and Welfare) Regulations 1992 state that during working hours the temperature in all workplaces inside buildings should be “reasonable”.

Guidance from the Health and Safety Executive (“HSE”) has also stated that there is “more to it than just room temperature”. Environmental factors, such as humidity and sources of heat in the workplace, combined with personal factors such as clothing and how physically demanding the work is, influence what is called “thermal comfort”. The HSE has previously stated that “an acceptable zone of thermal comfort for most people in the UK lies roughly between 13°C (56° F) and 30°C (86° F) …”, but it has since adopted advice that encourages employers to carry out a risk assessment that begins by assessing the proportion of employees who are complaining about the temperature!

So, if you have been receiving complaints by employees about the heat in their workplace, particularly over recent weeks, then you should be considering whether it would be appropriate to undertake a risk assessment and implement any safeguards necessary. If you are unsure whether the number of complaints that you have received are at a level that may require a risk assessment and you would like to consider this further with us, then please feel free to contact us.

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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