The press have reported in the last week that the Metropolitan Police are looking into allegations that ex PM Gordon Brown’s personal email may have been hacked by an unnamed media rganisation whilst he was Chancellor of the Exchequer.

Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002

The Regulations apply to employees who work under fixed term contracts, notably a contract which states that the arrangement will expire on a fixed term or on the completion of a specific task or event. It is common for businesses to use fixed term contracts to provide certainty and/or flexibility but it is also important that they are aware of the potential obligations. If they do not have appropriate notice clauses for example, then a termination could result in payment for the entire fixed term period.

The regulations were bought in to ensure that fixed term employees cannot be excluded from the contractual benefits offered to permanent staff and thus less favourable treatment.

The regulations do not apply to the following:

•  The Armed Forces;

• Students and work experience up to a year as part of their course;

• Agency workers attracted to perform through a temp company (employment business);

•  Apprentices; and

• People on government funded or sponsored training work experience.

The basic rights provide that a fixed term employee should not be treated less favourable than a comparable permanent employee. This relates to the terms of employment and will include things such as:

•  Regulation 3(2)(c) the opportunity to secure any permanent position in an establishment;

• Regulation 3(2)(b) the opportunity to receive training;

• Regulation 3(2)(a) any period of service qualification relating to any particular condition of service.;

• Regulation 3(1)(a) as regards to the terms of their contract;

• Regulation 3(1)(b) are being subjected to any other detriment by any act or deliberate failure to act of their employer.

Reviewing a comparable permanent employee would involve comparing the conditions of both workers to ensure that they are doing the same or broadly similar work.

Fixed term employees have also the right to receive a written statement from their employer setting out the reasons for less favourable treatment. If fixed term employees have worked successfully under a contract for more than four years, then their status will be deemed to be permanent. They also have the right to qualify the statutory redundancy payment if they are employed for the maximum period as well as sick pay. This includes employees on a fixed term contracts of 3 months or less.

If an employee has been employed on a fixed term contract or less than 3 months they have right to receive one weeks notice after one month’s continuous service. This is reciprocal.

Fixed term workers also have a right to access occupational pension schemes unless it can be denied on objective grounds.

It is up to the employer to show the reason for any less favourable treatment. They would need to objectively justify it in order not to fall foul of the regulations. When considering whether such measures are objectively justified, the Tribunal will consider whether it was to achieve a legitimate aim, necessary to achieve that aim and an appropriate way to achieve that aim.

An employer may be able to justify it by demonstrating a good business reason for the less favourable treatment in showing that it has acted proportionately or by showing that the fixed term employee’s package is no less favourable when considered as a whole to that of the permanent employee’s total package.

Problems that employers generally face are when dealing with pensions, permanent vacancies and redundancies.

When undertaking a redundancy process they still must consider the rights of fixed term employees. Bearing in mind that fixed term employees whose contract runs for a year can be entitled to bring a claim for unfair dismissal. In the circumstances employers need to ensure that they consult properly with fixed term employees before expiry. They should write to them setting out a list of issues and reason for the expiry of the contract if it is plus one year and that should also state or request a further meeting at which parties will discuss the issue. There should be some consultation with the employee and both sides should outline their views and review any possible alternatives. The employee should also be told of their right to appeal the decision within a reasonable timeframe. If they do it on an appeal, an appeal hearing should be held, and they have the right to be accompanied by a colleague or a trade union representative.

It is not therefore lawful to select fixed term employees simply on the basis of their status unless this can be objectively justified.

Employers must also offer fixed term employees the right to occupational pension schemes on the same criteria as permanent staff unless such treatment can be objectively justified. Employers should take advice in this regard.

Fixed term workers will also have the right to be informed of any permanent vacancies in the same manner as permanent employees.

This article courtesy of Ben Jones of Darlingtons Solicitors.

Top tips for employers relating to Employment Tribunal Claims

Pre-emption: Ensure that your company has in place correct policies and procedures. If you have not done so, have a staff handbook drafted stating clearly redundancy, disciplinary and anti discrimination policies to be adopted.

Transparency: Ensure that written records are kept of all contentious issues, including minutes of meetings, verbal and written warnings and staff reviews.

Procedure: Ensure that you company has an up to date understanding of the correct procedure to be adopted for disciplinary, grievance and/or redundancy. Referral should be made to the ACAS code of conduct which also provides explanatory guides. If in doubt legal advice should be sought at an early stage rather than attempting to deal with the situation once breaches have taken place which may be too late.

Training: Ensure that staff are adequately trained as to their obligations in accordance with the ACAS code of practice and employment law provisions. Provide seminars and obtain feedback.

Costs: Consider whether your practice requires insurance to cover employment tribunal claims, costs and damages.

ACAS: utilise the service of ACAS at an early stage to attempt to resolve the matter. They will act as conciliators and may assist in reaching a settlement before employment tribunal proceedings proceed.

Witnesses: Obtain statements at an early stage from as many staff members as possible. This will ensure that they record events whilst they are fresh in their mind. Ensure that any confidentiality obligations are made known to staff when they are interviewed. Find out which witnesses will be able to attend the employment tribunal and make it clear that they will be cross examined on any issues they raise in their statements.

Drafting: Ensure that you draft a comprehensive defence (ET3) addressing all issues raised by the employee. Ensure that substantive witness statements are submitted to deal chronologically with the Employees case.

Disability Discrimination

Disability discrimination laws are designed to make sure that disabled people are not discriminated against in their place of work or in other areas such as access to transport, amenities and such like. Until recently discrimination on the grounds of disability was covered by the provisions of the Disability Discrimination Act 1995. However with effect from 1^st October 2010 disability discrimination is now covered by the provisions of the Equality Act 2010.  Although the Equality Act 2010 is not yet fully enacted, the provisions relating to disability are in force.  The introduction of the Equality Act 2010 is not intended to provide radical new concepts of disability discrimination legislation, instead it expands on the original principle of the 1995 Act and is designed to simplify existing concepts and provided further protection.

Purpose

Disability discrimination legislation was not designed to make you, the employer treat a disabled person better than a non-disabled person. Instead the purpose of such legislation is to place the disabled person on the same level as someone who is not disabled and making them as productive in the workplace as any other employee.  It is vital that employers follow this legislation otherwise you could find yourselves making a substantial payout for discriminating against people on the grounds of disability.

Disability

A person is regarded as being disabled for the purposes of this Act if he has:-

• A physical or mental impairment, and
• The impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

There are therefore three elements to consider:

1. Physical or mental impairment: This would include examples such as amputated limbs, defective limbs from birth or through accident, blindness and deafness.  Mental impairment includes learning disabilities and recognised mental illnesses.

1. Substantial and long-term adverse effect: An impairment must have lasted for at least 12 months or is likely to last 12 months.  Substantial is anything more than minor or trivial.

1. Normal day-to-day activities: Under the previous Act there was a list of activities such as mobility, hearing, eye sight, memory etc, however this is no longer the case and this discretion is left to the tribunal to determine what is considered as normal day-to-day activities.

If a person satisfies the above test then they will be considered as disabled for the purposes of the Act and therefore protected by the provisions of the Equality Act 2010.

Types of discrimination

The following types of discrimination apply to all business regardless of the size of the business. A business owner found breaching any of the following is likely to be classed as discriminating against a disabled person.

Direct discrimination: A person discriminates against another if, because of a protected characteristic (the disability), he treats the disabled person less favourably than he would treat others.

Direct discrimination is the most obvious form of discrimination and a disabled person simply needs to show ‘less favourable treatment’.

Discrimination arising from disability: This occurs when an employer discriminates against a disabled person by treating them unfavourably because of something arising in consequence from the disabled person’s disability, and the employer cannot justify that unfavourable treatment.  This type of discrimination is also known as ‘reason related’ discrimination, i.e. an employer discriminates because of a reason related to the disability.

An example of this would be an employee regularly taking time off work to attend a hospital because of their disability, and because the employee is taking time off work and attending the hospital regularly the employer then decides to dismiss the disabled person.

For an action of discrimination to be successful on this ground, the disabled person must show a causal link between unfavourable treatment and their disability.  Employers do have a defence to this type of discrimination if they can show that he did not know or could not reasonably be expected to know that the employee had a disability.

Indirect discrimination: This occurs when an employer applies a provision, criterion or practice which is discriminatory in relation to the disabled person and this provision criterion or practice puts them at a disadvantage.  An example of this would be relocating the workplace to the top floor in a building and the disabled person being a wheel chair user can not access the top floor of the building.

Employer’s obligations

It is the employer’s obligation to make “reasonable adjustments” to assist disabled staff. What is a reasonable adjustment can be a major aspect of dispute. It might be providing specialist equipment or providing certain adjustments in the work place for the disabled person, but it alos takes into account the size and resources of the employer, so that what is reasonable for a big employer may not be the same as for a small business.

An employer also discriminates against a disabled person if he/she/they fail to take into account disability in the recruitment process. Claims can arise and be made by individuals who are not employees. Reasonable steps in this regard may include :-

• Offer your job application forms in alternative formats such as brail, audio or large font format.
• Provide space for a potential employee to give details of any adjustments required should they be called for an interview.
• Allow additional time for suitability assessments.

This duty to make reasonable adjustments continues once you have employed a disabled person.  It is also present if you have employed a non-disabled person and at some point they become disabled.  Examples of adjustments which may need to be considered are :-

• Adapting the physical features of the work place such as providing a ramp.
• Relocating the office of the employee to an accessible part of the building.
• Allowing the disabled person to work from home.
• Widening of doors.
• Providing specially adapted equipment such as chairs or computer screens.
• Allowing absence during work hours to attend medical treatment sessions.
• Allowing altered working hours.
• Allocating some of the disabled person’s duties to other members of staff.
• Installing stair lifts.
• Providing work surfaces of suitable height.

What is reasonable?

As an employer you are under an obligation to make reasonable adjustments, failing to make an adjustment for a disabled person does not automatically constitute discrimination.  This is because the reasonableness of the adjustment would be assessed by a tribunal.  In determining whether it would be reasonable for an employer to make an adjustment regard will be given to the following:

• Whether it would be practicable to make the adjustment.
• The financial cost of making the adjustment.
• The size of the employers business.
• The extent of the employer’s financial resources.

It must be noted that reasonable adjustments must be job related. It is not the duty of an employer to provide personal carers or special facilities.  The Act does not require an employer to treat a disabled person more favourably than other employees.

Advantages

There are many good reasons to employ disabled people:

• Employing disabled people illustrates you are an equal opportunities employer.
• The adjustments made for a disabled employee can often also help existing employees such as the use of ramps.
• Employing disabled people illustrates corporate responsibility to your customers.
• By making a real effort to assist a disabled employee they will often repay that commitment with great honesty, loyalty and hard work

Implementing the principals of the Equality Act and its requirements promotes good practice and an employer doing so is far less likely to found in breach of equality legislation, the risk of litigation and adverse publicity.

For advice on any aspect of discrimination law or employment law generally, we suggest you get in touch with Darlingtons, Solicitors in London, who kindly provided this article

The range of reasonable responses

Many employers and employees will know that a dismissal will not be substantively unfair if the employer acts within a “range of reasonable responses”. Many will also be aware that there is “catch all” defence of some other substantial reason an employer can put forward if the reasons for the dismissal do not fall within other categories.

So how far can these 2 principles be used for employers ? Well, recent cases suggest that the principles can even extend to there being a fair dismissal based on pressure from customers or clients, which can fall into the category of some other substantial reason.

Many employers will be familiar with a situation where a key account manager falls out with or is not liked by an important client. That client may demand that the individual is removed from their account, and it seems that this potentially can lead to a fair dismissal and that the principle may even extend to a personality clash between employees.

In dealing with several of these cases recently, the approach a Tribunal will take seems to be that firstly the employer will need to show that genuine and significant pressure was exerted by the 3^rd party. If the employer can demonstrate this, the employment tribunal will the weigh the degree of injustice to the employee and to what extent the employer looked at all the available options genuinely before dismissing. Factors likely to be relevant to a genuine assessment by an employer would be :-

• what was the employee’s conduct like ?
• does the employer’s employment contract deal with this issue and did the contract with the 3^rd party allow them to exert the pressure contractually ?
• the effect on the employer’s business if the threat from the third party was ignored
• did the employer consider alternative roles for the employee ?
• did the employer try and find a solution to the issue with the 3^rd party ?

Why do pre-pack administrations arouse such strong reactions ?

There are a number of possibly strong and valid criticisms of pre-packs, including :-

• Lack of transparency – unsecured creditors often receive no warning of administration or that the directors of the company that owes them money will shortly take over as new company taking all of the assets but not the liabilities
• Accountability – Many people are astonished to find out that the Insolvency Act does not deal with pre-pack administrations and consequently administrators do not require approval from the court or unsecured creditors.
• No benefits for creditors – pre-packs could perhaps at least be partially justified if there was clear evidence that buyers of assets, whether the directors who have just left a mess and unpaid creditors or not, generally pay more than would be the case without a buyer for assets and attempting to rejuvenate the business. Whilst each case is unique there seems to be little if any evidence that a pre-pack assists unsecured creditors.
• Asset stripping – little more needs to be said but with the added ingredient of the asset strippers being the same people that were involved in a failed company which may owe significant sums to innocent third parties.
• Conflict of interest – the proposed administrator has an inherent conflict of interest.

Are there any benefits with pre-pack administrations ?

Clearly, there are likely to be benefits for the buyer, but in objective terms, regardless of the identity of the buyer, benefits might include :-

• quicker and more orderly transfer of the business.
• minimising damage to supplier, customer and employee confidence.
• possibly saving jobs.
• faster returns for creditors – whilst returns may still be far from ideal, minimal or even non-existent after fees and secured creditors are paid, the process is generally much quicker than a long drawn out administration.

What are the risks of a pre-pack ?

Clearly, with many situations like this, the creditors are going to be very angry, feeling that they have had salt rubbed in their wounds. They may well at least contemplate taking action to fight back. One possible, although difficult route that creditors may explore relates to section 214 of the Insolvency Act 1986 Act which imposes personal liability on directors for wrongful trading. In order to protect their position, directors of an insolvent business would be well advised to make an early decision if it appears that the company is in difficulty and to have documented external legal and/or accountancy/insolvency professional advice to protect their position. It is also very important for directors to take into consideration the issue of any defined benefit pension scheme. If a company is considered to have taken the pre-pack route as a way of avoiding obligations in a pension scheme liability the Pensions Regulator has power to impose personal liability on the directors of the insolvent company.

Do unsecured creditors have any rights to challenge pre-packs ?

Yes, creditors do have the right to make a challenge but ought to be careful as any challenge is difficult legally and inherently expensive. Creditors are likely to be very angry in these situations, which means it is even more important to obtain dispassionate, level headed and experienced advice.

Some basics on The Human Right Act

When did it first come into force ?

The UK introduced the Human Rights Act as law in 1998 following it’s introduction by the European Convention on Human Rights (ECHR). The Act has gained increasing importance, awareness and publicity in the last 5 years as it’s applications are being increasingly tested in the UK courts for a wide variety of different issues, including of course the most recent and highly publicised  issues of privacy.

 What human rights does the Act protect ?

The act establishes a number of “headline” rights with potentially very wide ranging implications. The basic rights of most significance in the UK are as follows :-

• right to life
• freedom from torture and degrading treatment
• right to a fair trial
• respect for private and family life
• freedom of thought, conscience and religion, and freedom to express your beliefs
• peaceful enjoyment of property

 The Human Rights Act has become a political hot potato due to ongoing controversial applications of it, which have included recently not only the infamous privacy issues and super injunctions, but also numerous claims to it’s applications as regards healthcare issues, prisoners rights, local authority council tenants claims to protection from eviction and numerous others. This controversy certainly appears set to continue and the cost of such “innovative” claims being brought is running into the billions in terms of court costs and time, lawyers fees and such like.

 Do you have a view or an interesting application of the Human Rights legislation ? Please do let us know and contribute to this law debate.