The  Court held that the compulsory retirement age contained in the firm’s  partnership deed was  directly discriminatory. However they stated that  such a provision  was capable of justification if it could show that   fairness between generations was a legitimate aim for employers.

It would appear that the test employer must satisfy  for justifying direct age discrimination is:

1. identify the actual objective being pursued, although it may not have been articulated or even realised when the measure was first adopted .
2. Once an aim has been identified, it has to be asked whether it is legitimate in the particular circumstances of the employment or partnership concerned.
3. Finally, the means chosen must be both appropriate and necessary to achieve that aim

Two broad categories of aim had been accepted as legitimate by the European Court: inter-generational fairness and preserving the dignity of older workers.

The three aims accepted by the Employment Tribunal in this case were consistent with the European Court. Staff retention and workforce planning were directly related to the social policy aim of sharing out professional employment opportunities fairly between the

generations. Limiting the need to expel partners by way of performance management was directly related to the “dignity” aim  (despite some reservations expressed about this aim generally.

As to the second issue, the wording of regulation 3 suggests that the focus is on whether the treatment of Mr Seldon  in particular was justified. However, “…where it is justified to have a general rule, then the existence of that rule will usually justify the treatment which results from it.”. Often, requiring the application of the rule to the individual to be specifically justified would negate the purpose of having a rule in the first place.

However, all businesses will now have to give careful consideration to what, if any,

mandatory retirement rules can be justified in their particular business.

The case has been sent back to the Employment Tribunal to determine  whether 65 was an appropriate age for Mr Seldon to be retired.

Iain Lock Managing Partner stated “ it appears now that businesses may have a  means of retiring employees in certain circumstances. However the test as set out above must be applied and met and this will not mean that everybody can be retired in all circumstances. It must also be remembered that the case is going back to the employment tribunal to determine whether 65 was an appropriate age to achieve the legitimate aims of the partnership. I expect there to be other cases particular surrounding the issue of an appropriate age as this will vary depending on the work sector. Careful consideration should be given to any policies that are to be drafted with regards to retirement to see if they can meet the test set out by the tribunal ”

Reports state that Tevez is claiming that he did not refuse his boss’ request to play and the whole episode results from a misunderstanding. However, if it is true that he failed to obey his employer’s order, what does the law say about how they are entitled to react?

Under the common law, which forms the basis of our country’s legal system, there are fundamental implied duties between both parties to an employment contract. One such duty for the employee is that he will obey all lawful and reasonable orders from his employer. Arguably, a professional footballer being asked to play football for the team that employs him constitutes such an order.

If it is the case that Tevez was asked to play and refused, it seems highly possible that he is guilty of breaching his contract. Such a breach could be legitimate grounds for dismissal.

As ever, it is crucial that Manchester City, as the employer in the situation, follow the correct disciplinary procedures to deal with the breach. An employee’s misconduct is a potentially fair reason for dismissal but the actions carried out by the employer while dealing with the same is crucial to the eventual outcome.

Existing Q and A Law Clients who subscribe to our fixed fee employment law service with free telephone advice line are encouraged to speak to Iain or Lisa with any questions they might have arising from any of the above. Non-clients are also welcome to take advantage of a fee-free initial consultation with the same regard. Please call 01707 444450 and ask for Iain Lock or Lisa May who would be happy to talk with you.

There is no question that this change in the law has the potential to cause massive ramifications within the employment market. It brings an end to workers being forced into inactivity for no reason other than their age. There is little doubt that the ability for an employer to compulsorily retire an employee amounts to age discrimination and it is right, given the content of the Equality Act 2010, that it should be unlawful. In addition, for a country struggling to fund an ever aging population, any means of keeping people financially independent must be welcome.

However, those who are against the changes argue that they will result in an aging workforce, which brings with it a number of possible problems. There is the greater risk of ill-health in the older worker that may lead to a larger amount of sickness absence than the younger colleague. Also, after many years’ service, it is likely that the older worker is on a higher wage and therefore significantly more expensive to his employer than a younger employee. There have been concerns raised about the capability of the older worker and the effect this may have on the quality of their output. For these reasons, and various others, many business managers are wary of what the removal of the default retirement age will mean for their organisation.

There have also been questions raised about what this might mean for young people attempting to enter the world of work. With the option available to postpone retirement indefinitely, there will be fewer vacancies to be had by those at the start of their career. The effect this might have on our already very high youth unemployment rate remains to be seen.

From an employer’s perspective, these changes may bring a level of uncertainty in the future with regard to elderly workers issues. Obviously, it would be unwise to attempt to dismiss an employee on the grounds of compulsory retirement. To do so is likely to give rise to not only a claim of unfair dismissal, but also a claim of direct discrimination on the grounds of age. As there is no limit to the quantum of damages available for a discrimination claim, this could prove very costly to an organisation.

There is, under the justification of “some other substantial reason”, still a lawful method of dismissing an employee when they reach a certain age. This involves the creation of an Employer Justified Retirement Age (EJRA). There are certain professions where an EJRA is already in place. These include posts in the emergency services or in air traffic control, where exceptional levels of fitness or awareness are paramount.

The creation of an EJRA involves careful planning and it would be prudent to take professional legal advice before doing so. There must be objective reasons for the implementation of an EJRA and these should be capable of being proved if necessary. As with the former default retirement age, a worker has the right to request to work past an EJRA. Employers would be required to treat each worker’s application to work on in the same manner.

Existing Q and A Law Clients who subscribe to our fixed fee employment law service with free telephone advice line are encouraged to speak to Iain or Lisa with any questions they might have arising from any of the above. Non-clients are also welcome to take advantage of a fee-free initial consultation with the same regard, call 01707 444450 and ask for Iain Lock or Lisa May who would be happy to talk with you.

On October 1^st the Agency Workers Regulations 2010 finally came into force, which brings the EU’s Agency Workers Directive into UK law. But, what does this mean for employers, specifically for those within the education sector?

The aim of the legislation is to provide the same treatment for temporary workers as for permanent employees. After completing a qualifying period of service on an assignment, all workers should expect to benefit from the contractual terms of permanent employees as regards certain pay conditions, hours of work and rest, and holiday entitlements that are above the statutory minimum.

With regard to equal pay conditions, equality will include commission and bonuses earned but not sick pay or pension arrangements. Maternity, paternity or adoption leave pay is also excluded under the Regulations, along with redundancy payments and financial participation schemes. It is possible for agencies and workers to agree to opt out of equality for pay conditions only. In these circumstances, a “derogation contract” should be entered into. This must comply with certain rules and it would be wise to seek professional guidance before implementation.

These regulations only apply to temporary workers and only to those who have been supplied to the hirer by traditional employment agencies or other third parties. This includes contract arrangements with umbrella companies.

Under these Regulations, there is specific guidance for schools and institutions using temporary agency workers within the education sector. It is important for such institutions to be aware of the implications of being the “hirer” for the purpose of the Regulations. It may be that it is the school itself that holds this position, particularly in maintained schools where the school is the legal entity to which the worker is supplied. However, in community schools and voluntary controlled schools, it is the local authority that is classed as the hirer and a worker whose assignments move him to different schools under one local authority will be assumed to have continuous service from the start of the first appointment.  In Independent Schools, the hirer is the proprietor of the school. When agency workers move from one independent school to the next, the hirer will usually change with the move. However, in cases where a single proprietor has more than one school, this is not the case. It is very important that school leaders are aware of these facts as it effects the calculation of the worker’s qualifying period.

In order for agency workers to qualify for equal treatment under the Regulations, they need to have completed 12 continuous calendar weeks, either full-time or part-time in the same or a broadly similar role with the hirer. For workers currently employed in an assignment, this period is deemed to have begun on October 1st 2011 when the Regulations came into force.

A break of more than six weeks between assignments will break the continuity of the qualifying period. However, it is specifically stated for workers in schools, that closures for school holidays will not be accepted as such a break. During the holidays, the worker’s assignment is counted as being suspended and the qualifying period will continue from where it left off at the start of the new term. The implications of this will need careful assessment.

In addition to the rights that agency workers should receive after completing the 12 week qualifying period, there are two rights to equal treatment that should be applied immediately at the start of the assignment. These are referred to as Day 1 Rights. Full liability for a failure to comply with these rights lies with the hirer. These rights are

1. the right to equal treatment in relation to access to collective facilities and amenities, such as staff canteens and childcare

2. The right to be provided with the same information regarding current vacancies as is provided to permanent staff.

If an agency worker brings a complaint of unequal treatment under the Regulations, it will usually be against both the agency and the hirer. Where an agency can show that it has made a reasonable effort to ensure equal treatment, liability will fall on the hirer. If it appears that assignments have been deliberately structured so as to avoid the obligations of the Regulations, a fine of up to £5,000 may apply.

For further details of the Regulations and all other aspects of employment law that may affect your business, please contact our specialised employment lawyers at Q&A Law for a free initial consultation.

There are many social networking sites of which Facebook is the biggest. Facebook currently has over 750 million active users worldwide, with more than 250 million active users accessing their account through mobile devices. Another social networking site, and one which is particularly popular with celebrities, is Twitter. According to recent statistics, Twitter is one of the ten-most-visited websites worldwide and has over 200 million registered accounts who collectively post 110 million tweets per day.

With this volume of usage and the ever-increasing ease of accessibility to social networking sites, it is no wonder that an individual’s electronic behaviour is beginning to impinge on his employment relationships. With this in mind, ACAS advises organisations to create and implement a Social Networking Policy into their employment terms.

Generally, there are two kinds of electronic behaviour that result in disciplinary action being taken against employees. Firstly, there are the situations where a worker has used their social networking space to post an admission of misconduct. In such an instance, it is not the electronic behaviour that is cause for disciplinary action but the preceding actions. In these circumstances, it is important that the employer treats the misdemeanour in the same way that it would had the social networking activity not been present.

The second kind of electronic behaviour that has resulted in disciplinary action for employees is when social networking sites have been used by them to express their views on issues relating to the workplace. The way in which this is dealt with is more complicated. There are two sets of issues to consider.

Firstly, there are the legal issues. It is possible for employers to take action against employees who have made comments about the organisation that are defamatory. Action can also be taken when the employee’s comments are likely to bring the organisation into disrepute. An example of this was in 2008 when Virgin Atlantic dismissed 13 members of cabin crew for posting messages on a Facebook group where, among other things, they labelled their passengers as “chavs”.  Sir Richard Branson commented that their behaviour was “totally inappropriate” and he believed that it had “brought the company into disrepute”.

As previously mentioned, businesses should incorporate into their staff’s employment terms a comprehensive policy relating to social networking sites and electronic behaviour. The detailing of this policy must be sufficient so that employees are left in no doubt as to what constitutes unacceptable behaviour. When this is the case, there should be fewer instances of objectionable comments being posted by staff in the first instance. If an employee choses to disregard the content of a comprehensive social networking policy, the employer will find it much easier to take the appropriate action against him.

It is important, however, that the policy is not too controlling. The policy must not suggest that an employee is restricted from raising a legitimate complaint. It is necessary that the company takes into account the law relating to what is commonly known as “whistle-blowing” when the policy is being drafted.

The second set of issues to consider are those of an ethical regard. Employers are encouraged to consider the “moral intensity” of the conduct. This is, were the comments made as part of a deliberately vicious attack on the company or was the employee simply venting his frustration after a difficult day? In the case of the latter, it might be prudent to consider providing an alternative mechanism for such a purpose. Maybe an internal forum or chat room could be in place where the member of staff could be confident he would face no ramifications for voicing his views. Timpsons dry-cleaners publish a “no secrets” newsletter for this purpose.

When considering whether or not to take action against an employee who is guilty of making inappropriate or even damaging comments about the workplace on a social networking site, the manager in charge must consider the real likelihood that the comment will cause harm to the organisation. An over-reaction or disproportionate response could cause more damage than the employee’s original comment would do. This may be from the discontent within the workforce in response to an unfair dismissal, or from the negative publicity that such a reaction could bring.

Liverpool footballer Ryan Babel was fined by the English Football Association for posting on his Twitter page a photograph of referee Howard Webb in a Manchester United strip as a comment on his refereeing ability after a match. In response to this punishment, a spokesperson for the Professional Footballers’ Association criticised the FA’s reaction as being too tough and accused them of having “no sense of humour”.

There is an argument that the ethical issues go deeper than simply displaying a reasonable response to the electronic behaviour of employees. The right to freedom of speech must be weighed up against what amounts to a breach of the employee’s duty to his employer. There are many issues for consideration and this serves to highlight just how important it is that organisations have a policy in place that strives to clarify these issues before they become contentious.

When drafting the policy, it may be beneficial to consult the workers whom it affects as it is in the employer’s interests to create a mutually acceptable policy. Employees of Associated Press raised objections in response to their social media policy when they saw that under the terms of it they were to be held accountable for the comments made by others on their social networking profiles.

At Q and A Law, our specialised employment lawyers can assist in the drafting of efficient and conclusive social media policies ensuring that they are tailored and relevant to your business’ needs. Please contact Iain Lock or Lisa May for further information and an initial consultation.

For business managers, this final offence takes the issue of vicarious liability to another level and adds a new dimension with regard to how employees’ activities must be monitored. Under the Bribery Act 2010, a commercial organisation found guilty of failing to prevent bribery by an associated person may be punished by a fine of an unlimited amount. Crucially, this includes bribery activity performed overseas by associates of UK businesses. There is only one possible defence to a prosecution for a section 7 offence, which can be a full defence, and that is that the company accused can demonstrate that it has “adequate procedures” in place in order to prevent such activity.

The Ministry of Justice has published a guide about “procedures which relevant commercial organisations can put into place to prevent persons associated with them from bribing”. Within this guide are the six core principles that a commercial organisation should have in place if it is to successfully avoid prosecution for a section 7 offence.

1) Proportionality of procedures:

What is considered to be “adequate” is not set in stone and is dependent on the size of the company, the risk of bribery faced by the company, and the resources at its disposal. In order to evaluate these factors, it is good practice for a company to carry out a risk assessment taking each of them into account. Under this heading, the guide also highlights the importance of a company’s anti-bribery procedures being “clear, practical, [and] accessible”.

A company may decide to construct standalone bribery prevention procedures or it may include them within wider policies. Either way, it is essential that these procedures are “effectively implemented and enforced”. Employees should be aware of the disciplinary processes that would be applied if the organisation’s anti-bribery rules were breached.

2) Top-level commitment:

In creating anti-bribery policy, the leaders of an organisation must create an anti-bribery culture within which activities relating to bribery are never acceptable. The Ministry of Justice’s guidance underlines the importance of the role that should be played by those working at the top level of a company in establishing such a culture.

There are many ways in which business managers can achieve this. The use of well-organised and competently delivered training programmes will be vital in ensuring the correct knowledge is passed down through the company. As well as this, top-level managers should maintain appropriate control over all business dealings where the risk of bribery activity is deemed to be high.

3) Risk-assessment:

As previously mentioned, it is good practice for commercial organisations to carry out detailed risk-assessments in order to gage the level of threat they are under from bribery related activities by persons associated with the company. Such risk-assessments should be carried out by suitably qualified managers at regular intervals as the company’s business evolves. With regard to anti-bribery procedures, there is no room for complacency.

Further guidance on the risks commonly encountered by commercial organisations relating to bribery is detailed in the Ministry of Justice’s publication.

4) Due diligence:

Under this principle, the guidance provides that, in response, to the outcome of the relevant risk-assessments, companies should apply due diligence procedures in order to mitigate such risks.

5) Communication (including training):

In conjunction with principle 2 which drew attention to the need for commitment from top-level managers, principle 5 reiterates the significance of proficient communication with employees educating them in all appropriate aspects of anti-bribery law.

6) Monitoring and review:

In the final of the core principles laid out in the guidance, the Ministry of Justice requests that commercial organisations continue to monitor and review their anti-bribery policies and make alterations when necessary.

In conclusion, there is a lot for business managers to consider as a result of the Bribery Act 2010. At Q and A Law, our specialised employment lawyers can provide support and advice on any or all of the issues discussed above. Please contact Iain Lock or Lisa May for an initial consultation.

Much of the legal debate coming from these events is concerned with criminal law, especially with regard to the suitability of the above mentioned sentencing policies. However, there are also some interesting themes concerning employment law arising from these events. Specifically, what action, if any, can employers take against their employees if they are convicted of an offence resulting from the riots?

One of the first offenders to have his involvement in the disorder broadcast in the media was 31 year old teaching assistant Alexis Bailey who is currently employed as a “learning mentor” at Stockwell Primary School. There has been public outrage that someone in a position of responsibility with influence over young children has played a part in causing so much damage to our society. But can his behaviour outside of work be punishable by his employer?

The simple answer is yes. Mr Bailey’s employer would have a strong case for deciding to take disciplinary action against him. In many employment contracts there will be an express term stating that the employee is prohibited from behaving in a manner that would bring his employer’s organisation into disrepute. Arguably, Mr Bailey’s behaviour has done exactly that. It is unlikely that any parent would be comfortable with their child being ‘mentored’ by an individual capable of participating in causing so much harm within his community.

Mr Bailey is by no means the first person in a position of influence over our young children to be caught behaving in an undesirable manner. John Terry and Ashley Cole are two examples of high profile footballers caught having extramarital affairs. As an employer, Chelsea FC dealt with each case differently. Ashley Cole was found to have indulged in the aforementioned activities whilst on club duties as he was away with the team at the time. Therefore, he was punished for misconduct within the workplace. John Terry’s indiscretions, by contrast, were considered by Chelsea FC to be a part of his private life. Although he lost the England captaincy, he was not subject to any disciplinary procedures by his club.

What does the law say about this kind of situation? As well as the possibility of breaching the terms of the employment contract as discussed above, there is an amount of case law on the subject.

In Godsen v Lifeline Project Ltd, Mr Godsen was dismissed for sending an email with racist and sexist content from his home computer. This email contained an instruction to the recipient to “pass on” the message and as a result, ended up entering the system of an associated company causing embarrassment to his employer. After his dismissal, the claimant appealed on the grounds that the original email was sent from home out of working hours and it was not him who had forwarded it to enter the company’s system. His argument was that he should not be punished for activities carried out within his private life. This argument was rejected as the instruction to “pass on” the email meant that it could not be deemed to be a private communication between him and his friend. Therefore, the resulting disrepute brought upon his employer amounted to conduct for which dismissal was a reasonable response.

An employer keen to avoid a claim of unfair dismissal may be wary to take disciplinary action against an employee for misconduct away from work due to a worry that the employee could claim an infringement on his human rights. Article 8 of the European Convention on Human Rights provides a right to respect for one’s private life. In Pay v United Kingdom, Mr Pay made an application to the European Court of Human Rights on these very grounds. He was a probation officer working predominantly with sex offenders. He was dismissed when his employers discovered that he was involved in sado-masochism and fetish clubs. The court found that there had been no breach of human rights as these activities were not compatible with the role he was employed to perform and therefore the dismissal stood.

Essentially, when considering whether to take action against an employee for their conduct away from work, the employer must decide if the said conduct has an effect on their organisation or the employee’s ability to perform their role within it. It is interesting to examine the following two cases where the conduct in question is very similar but the difference between the employees’ roles provides for very different actions being taken against them:

Both cases involved a female employee found to have participated in activities linked to the sex industry outside of their working hours. The first lady was a teacher who had some photographs of her taken and posted on a website that contained images of glamour modelling, although the teacher herself was not photographed in such a style. The second lady was an airline stewardess who also worked as an actress in pornographic films. The stewardess had no action taken against her by her employer as they felt that what she did in her own time was her own business. The teacher, however, was subjected to disciplinary action from her employer. She was not dismissed on the grounds that her photographs were not actually indecent. Had they been so, it is likely that she would have been dismissed from her teaching position as a result.

To conclude, an employer can take action against an employee for their actions outside of work if these actions cause a detriment to the employer’s organisation. In the case of Mr Bailey, the rioting teaching assistant, it is likely that his employer will find itself bound to take disciplinary action against him for his behaviour.

While the Employment Tribunal will judge each case based on what it considers to be a reasonable response from the employer, it is important that workers’ contracts are specific on the expectations of employees outside of working hours. At Q and A Law, our specialist employment lawyers can provide advice on how best to draft these terms and all others of relevance in the creation of an effective employment contract. Those clients who subscribe to our fixed-fee employment law service benefit from this as part of their service package.

For further information on our fixed-fee services or for advice on any of the matters raised in this article, contact Iain Lock or Lisa May for an initial consultation.

In 1998, rules relating to time spent at work were changed by the Working Time Regulations (WTR 1998). These were created in order to implement the European Working Time Directive into British law. However, it appears that there are inconsistencies between domestic law and the EU Directive.

Specifically, under Reg 13(9) of the WTR 1998, it is stated that the entitlement of leave owed to a worker “may only be taken in the leave year in respect of which it is due”. This is in an effort to ensure that workers receive the intended rest benefit from their leave entitlement. At first reading, it appears to be unlawful for such leave to be carried over into the next holiday year if it has been untaken. This is known as the “use it or lose it” policy.

What does this mean for workers who have failed to take their leave entitlement in the year that it is due because they have been on sick leave?

Where a worker has a period of holiday leave arranged and subsequently becomes unwell over the same period, he has the right to take sickness leave in place of holiday and to reschedule his holiday for another time. The difficulties arise when, due to sickness, the worker is unable to reschedule a time to take his holiday leave entitlement in the year that it is due to him and therefore comply with Reg 13(9) WTR 1998.

Workers could take their paid annual leave whilst they are off sick. In cases where the length of sickness absence is likely to last beyond the end of the relevant holiday year, this is arguably the most efficient solution. However, it may be of no benefit to the employee to agree to do this. If they are in receipt of full sick pay, there is no incentive to take their holiday entitlement instead. Similarly, the employee may argue that holiday leave is of no value if his sickness renders him unable to make proper use of it.

In the Spanish case of Pereda v Madrid Movilidad SA heard by the European Court of Justice (ECJ), the court ruled that if the worker does not want to take holiday leave while absent due to sickness, then he has the right not to. In this situation, the leave entitlement should be carried over to the next holiday year when it can be taken.

This ruling seems inconsistent with domestic law if the inability to carry over holiday entitlement as provided under Reg 13(9)(a) WTR 1998 is to be complied with. Therefore an Edinburgh Employment Tribunal found itself bound to follow a literal reading of this law in Souter v Royal College of Nursing Scotland. The claimant’s request that she was owed a lieu payment at the termination of her employment for previous years’ holiday hours accrued but untaken due to sickness absence was rejected for this reason.

In contrast, a Leeds Employment Tribunal sought to follow the Pereda ruling in Shah v First West Yorkshire Ltd. Mr Shah had a four week holiday agreed with his employer but broke his ankle and was forced to take three months sickness leave. He requested to reschedule his holiday but this request was declined by his employer as it would have meant carrying the entitlement over into the next holiday year. Mr Shah bought a claim against his employer under the WTR 1998 and the Tribunal chose to insert extra wording into Reg 13(9)(a) WTR 1998 so that it could follow the ECJ ruling in Pereda.

In Millard v Roland J Bell Ltd, a Bristol Employment Tribunal found itself able to apply the law in Pereda without inserting any extra wording into Reg 13(9)(a) WTR 1998. In this case, the reasoning was that a worker absent on sick leave does not have annual leave “due” until he is back at work and in a position to take such leave. This is irrespective of whether or not the return to work falls within the original holiday year.

Both of these cases illustrate to UK businesses that it is accepted that their employees are entitled to carry over annual leave allowances if they have been unable to take them in the current holiday year because of sickness.

When a worker receives a payment in lieu of untaken holiday entitlement at the termination of employment, if their sickness absence covers multiple holiday years, how much carry over is required to be included in the lieu payment?

There is no argument that an employee will receive a payment in lieu of holiday hours accrued but not taken in the current holiday year at the termination of employment. Similarly, where more hours than have been accrued have been taken in the current year, a deduction from wages may be appropriate. But what is the position regarding untaken annual leave for previous years when sickness absence spans multiple years?

Going back to Souter, the employee was on long-term sick from November 2001 until her retirement in April 2010. Her attempt to claim payment for all the years’ untaken holiday entitlement was rejected by the Employment Tribunal under a literal reading of Reg 13(9)(a). The Tribunal also relied on the fact that the claim was out of time. The claimant had been paid in lieu of untaken holiday for the current year making the date from which payment had not been made longer than the required three months.

This method of “breaking the chain” was also seen in Khan v Martin McColl Ltd where an employee absent from work due to sickness from May 2008 until he resigned in August 2009 brought a claim of unlawful deductions from wages contrary to s23 Employment Rights Act 1996. Mr Khan had been paid a lieu payment on termination of employment for holiday year 2009 making his claim for unlawful deduction from wages out of date. The Tribunal rejected his claim on these grounds.

While the decisions reached in these two cases are favourable from the employer’s perspective, they are based on the assumption that holiday entitlements remain in the year in which they originally accrued. This does not correspond with the decisions reached since Stringer and Pereda where we see that untaken holidays should be carried over into the next year and so on. As such, it would be dangerous for an employer to take the decisions made by the tribunals in Khan and Souter as being persuasive in cases going forward.

There is case law to support the worker’s right to be paid in lieu of untaken holiday hours for all previous years leading up to the date of termination of employment. In Horne v Dawn Meats (UK) Ltd, the Hull Employment Tribunal found that as the rulings in Stringer and Pereda have allowed the worker to carry over annual leave entitlement that has not been taken into following years, then it also follows that such a carryover is required to be included in lieu payments at the termination of employment. Obviously, this has considerable ramifications for businesses. The cost of making such payments to employees who have been on long-term sick when their employment ends is potentially huge.

The government’s “Consultation on Modern Workplaces” closes this week on 8^th August. One of the topics covered in this consultation is the annual leave entitlement of sick workers. There are likely to be a number of legislative changes arising from this exercise which will bring UK employment law up to date with EU practice. It is unlikely that these changes will appear before 2012, but employers should begin to consider their position and make the required procedural amendments.

What steps can, and should, businesses take to mitigate their potential losses arising from being forced to make larger payments to workers on termination of their employment?

The first thing to review is the existing sickness policy. Is it too generous, offering the employee little incentive to return to work or agree to take annual leave during sickness absence if appropriate? It may be that by reducing the generosity in an existing sickness policy, a business can off-set the potential cost of making increased leavers’ payments.

In the case of workers on long-term sick, companies need to ensure that they are effectively managing the length of sickness. There should be a proficient system in place whereby the length of sickness is monitored closely and appropriate steps taken to reduce the absence or end it completely.

At Q and A Law, our specialised employment solicitors can provide effective, in depth recommendations on how to best manage long-term sickness. Employers must be watchful that they do not open themselves up to a claim of discrimination being brought against them and our solicitors will ensure this is avoided.

There are likely to be amendments required to contracts and staff handbooks in order to accommodate the changes to sickness and holiday policies. Q and A Law clients who subscribe to our fixed-fee employment law service will benefit from these updates as part of their service package.

For further information on our fixed-fee services or for advice on any of the matters raised in this article, contact Iain Lock or Lisa May for an initial consultation.

Sarah Zokay-West

The introduction of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 has made it more likely that tribunals will be compelled to issue costs orders. These will be issued based on the conduct of the parties whether they are the losing or the winning party of the claim.

There are a number of circumstances in which tribunals are obliged to issue a costs order. One of these circumstances, and one which should provide a degree of comfort to business managers, is when a claimant brings a “misconceived” claim. This can be further defined as a claim “having no reasonable prospect of success”.

In an attempt to dissuade claimants from wasting the time of everyone involved with such a claim, tribunals can request a deposit from the claimant before proceedings can begin. This deposit can be as much as £500.

Once proceedings are underway, the conduct of either party or their representative could result in the tribunal issuing a costs award against them. As stated above, this could happen irrespective of whether or not the paying party won the case.

With this in mind, it is important that businesses are aware of the need to be seen to behave properly with regard to all aspects of the proceedings. Improper conduct is described as acting “vexatiously, abusively, disruptively or otherwise unreasonably”. What constitutes such conduct seems to be, to some extent, a matter of opinion.

In Daleside Nursing Home v Mathew [2009] the Employment Appeals Tribunal found in favour of the appellant who was pursuing a costs order having had it refused at the first Hearing. In the original Hearing, the claimant was seeking a ruling of direct racial discrimination and was alleging that her manager had called her a “black bitch”. The tribunal found that it “preferred” the evidence of the employer on this matter. The claimant lost the case but the Employment Tribunal failed to award costs to the respondent.

As the very centre of the claimant’s case rested on her accusation and this was found to be a lie, the Employment Appeals Tribunal found that this amounted to unreasonable behaviour and that it was right that a costs award be made against her.

Another form of unreasonable conduct is displayed in G4S Services v Rondeau [2009]. In this case, it was found that accepting an offer to settle the appeal just before it was about to begin amounted to unreasonable behaviour. This was due to the fact that the same offer had been made and rejected some months earlier.

Any form of unreasonable or unexplained timewasting or postponements to proceedings by either party could amount to punishable conduct with respect to costs.

Employment tribunals can award costs of up to £10,000 or, if it is felt appropriate, they can order that the amount be subjected to detailed assessment by the County Court. In a recent case, the amount of costs, prior to such assessment, has been valued at over £140,000.

It is important to remember that costs orders are still uncommon in tribunals. However, the tribunal’s authority to issue them is, and should be, a powerful deterrent to those behaving dishonestly or immorally and hoping to get away with it.

Crucially, under Schedule 1 of the above Regulations, a costs order will only be made when the receiving party has been legally represented. The amount of costs awarded however, will include not only legal fees but also “charges, disbursements or expenses incurred by or on behalf of a party, in relation to the proceedings”. As any company who has had to defend a claim will know, these can amount to a considerable sum.

At Q&A Law, we find that the relationship that develops between us and our clients who subscribe to our fixed-fee employment law service provides a valuable benefit when we are instructed to represent them in tribunal proceedings. As professional solicitors who are up to date with the constant developments in employment law, we strive to ensure that our conduct would not give rise to such an order being made against our client.

For further information on our fixed-fee services or for advice on any of the matters raised in this article, contact Iain Lock or Lisa May for an initial consultation.

Sarah Zokay-West

The financial cost of this absenteeism to British businesses is estimated to amount to £32bn each year.

But what other consequences does unauthorised absence have for businesses?

By its very nature, unauthorised absence is last minute and cannot be planned for. At least, not by the employer. The responsibility of covering the tasks of the absentee falls to other employees. This adds to their workload and often too, to their stress levels. The likelihood of them requiring time off work themselves may then be increased.

Where a single employee is doing the work of two or more people, it is probable that it will take longer to complete. This can increase the overtime costs of a business. Companies must also ensure that they remain compliant to the Working Time Regulations 1998 or risk further expense.

A thinly stretched workforce is more likely to make mistakes. As well as creating yet more work for employees, this will impact on customer satisfaction levels.

Why do employees take unauthorised leave from work?

There are a number of reasons why people take time off work without authorisation. Of those who admit to simply ‘skiving’, the explanation they give is that they are bored or depressed with their job.

There is also another group of workers who are compelled to take unauthorised absence from work due to their personal situations and family commitments. In fact, for more than 20% of employees, family responsibilities were named as the true cause of the absence.

What action can employers take in managing absenteeism?

In addressing a dejected workforce, Q & A Law highlight the importance of strong Management. Workers perform best when they are aware of their role and what is expected from them. Business managers should not be afraid to give their employees freedom within their role. Valuing employees means valuing their opinions.

In companies where overtime is excessive or shift patterns frequently revolve, the level of absence tends to increase. It is also higher amongst new starters and younger workers.

Employers should apply a balanced approach to requests for time off outside of approved holiday leave. It is often the case that a rejected application for leave will result in the employee taking sick leave or an unauthorised absence as a result.

In all cases, it is vital that a company has an established and effective absence policy in place. This should be clearly communicated to all staff from the outset. There must always be a return to work meeting carried out as this is a crucial tool in uncovering the reason behind the absenteeism.

How can businesses address absences due to family commitments?

The Work and Families Act 2006 provided employees with a number of family-friendly employment rights designed to promote a healthy work-life balance and make it easier to manage obligations at home and at work simultaneously.

Under this legislation, employees with over one year’s service are entitled to take a specified amount of parental leave if they are responsible for a child under 5 years old, or 18 years if the child is receiving Disability Living Allowance. This leave is unpaid and 21 days’ notice of the employee’s intention to take it should be provided.

In addition to parental leave, the Work and Families Act 2006 provides all employees with the right to take reasonable time off to care for dependants. Leave for dependants is unpaid and is designed to be taken in order to deal with unexpected emergencies.

It is important that employers communicate these rights to their workforce so that they are aware of the correct absence procedure for their situation.

Where employees find it an on-going struggle to juggle their home and working lives, they have the right to request flexible working arrangements.

It could be that a job-share would add value to a company. After all, two heads can be better than one. Or, an employee working from home might be just as effective as they would be from their desk.

While employers do not have to agree to a flexible working request, they must consider it.

So, what can, and should, be done to address persistent absenteeism?

It would be naïve for businesses to assume that no one in their workforce had ever claimed sickness and taken a so called ‘duvet day’ and in reality, there is very little that can be done about these (hopefully) irregular occurrences.

But what if a worker is proven to be dishonest about an absence? Many people will have heard of the unlucky individual who, after calling in sick to work, was broadcast on television enjoying the tennis at Wimbledon.

Businesses need to assess what their response should be in such circumstances. It is reasonable to take disciplinary action against the member of staff. In some circumstances, dismissal may be appropriate. The key point to remember is that the company’s response must be consistent.

For further information or advice on any of the matters raised in this article, contact Iain Lock or Lisa May at Q&A Law for an initial consultation.

Sarah Zokay-West