Questions and answers

first_imgQuestions and answersOn 1 Mar 2001 in Personnel Today Related posts:No related photos. Previous Article Next Article The employment law team at Boodle Hatfield answer questions on workplaceissuesPayment in lieu clauses Q:  We recently heard that ifwe have a payment in lieu of notice (“Pilon”) clause in our contractof employment, when we ask someone to leave, we cannot reduce the Pilon to takeinto account the fact that they are likely to go straight to another jobelsewhere. Is this right? It could be expensive. A:  Employers will welcome theCourt of Appeal’s recent overturning of the EAT’s decision in the Cerebus casesince it effectively helps them on the issue of termination payments. Wherethere is a discretion in the contract for an employer to make a Pilon, theemployer now does not need to pay in full where the employee has obtainedemployment elsewhere during the notice period. Before the EAT’s decision in this case, the above position was assumed(therefore the employee had to mitigate his loss). The EAT’s decision changedthat, stating that the employer was bound to pay the full payment in lieu ofnotice, and if the employee was lucky enough to find alternative employmentduring that period, he could effectively be doubly compensated. The Court of Appeal’s decision was a majority decision: the two judges inthe majority decided that because the employer had a discretion only, and not anobligation, to make a payment in lieu of notice, the mitigation rules shouldapply. Katie Pyne Part-timers Q:  I understand that newRegulations have come in concerning part-timers which effectively gives themlots more new rights. We employ a lot of part-timers and are worried about whatexactly we have to do. Are the new rights much wider than the previous law? A:  The new Part-TimeRegulations came into force on 1 July 2000. They are very narrow and may nothelp many part-timers in practice. Part-timers are able to bring claims only by showing their treatment orterms are pro rata worse than that given to a full-timer working on the samecontract for the same employer. Part-timers working under a different type ofcontract or for a different employer are precluded from making a comparativeclaim. The message for employers is clear – if you use different types ofcontract or different employing entities, it may be possible still to paypart-timers relatively less. Where part-timers carry out work which is not thesame or similar, but of equal value, or where the work is equivalently rated,the Regulations will also not assist. Furthermore, part-timers not employedcontemporaneously with full-timers will also find that the Regulations will notassist. Part-timers will therefore have recourse to the old law for many of thepractical difficulties encountered by them. For example, the Equal Pay Act of1970 allows claims by part-timers (albeit only with members of the oppositesex) even if they are employed by an associated employer, on a different typeof contract or where the work is of equal value or equivalently rated. Article 141 of the Treaty of Rome allows part-timers to compare pay withthat of a predecessor (again provided that the comparator is of the oppositesex). The Sex Discrimination Act allows claims to be made in relation to ahypothetical man. This Act also covers recruitment, and is still the only legalsource for a right to work part-time in certain cases. Simon Fitzpatrick Positive discrimination Q:  We are an equalopportunities employer and we are keen to ensure that the number of ethnicminority and female people we have in our senior management positions reflectssociety at large. Can we positively discriminate? A:  In general, UK law ishostile towards positive discrimination. There is little prospect of anypositive discrimination measures being made lawful in the near future, althoughthe Government is currently considering the possibility of allowing suchmeasures in the selection of political candidates. There are, however, a number of small exceptions to this general rule. TheSex Discrimination Act 1975 and the Race Relations Act 1976 allow positiveaction in relation to training for individuals who are job applicants or othernon-employees, where it reasonably appears that during the proceeding yearthere were comparatively few persons of that sex or racial group doing thatparticular work in Great Britain. Trade unions, employee associations andprofessional trade organisations can similarly positively discriminate inrecruitment and training on the same grounds as above. The “genuineoccupational qualification” rules also allow employers to target one raceor sex for particular jobs in certain circumstances One of the main curbs on positive action is European law. The ECJ initiallytook a fairly strict line declaring that any positive action which effectivelyguaranteed a female candidate the position in question, in circumstances wherea male was equally qualified, was unlawful. However, in recent times the ECJhas shown a more relaxed approach. James Lynas Adoption and Parental Leave Q:  We are a small companywith only five employees. One female employee, who has been with us since 1999,has a three-year-old son. She is now planning to adopt a 10-year-old girl inMay 2001. The employee has asked for a couple of weeks’ unpaid leave, startingon the date the girl will be placed with her. Can she get this? A:  The statutory right tomaternity leave does not presently extend to women who are adopting children.However, as your employee has over a year’s service, she has the right tounpaid parental leave in respect of the girl. Employees with one or more years’service may take 13 weeks’ parental leave for each child born or adopted on orafter 15 December 1999 (“the cut off date”). Parental leave for adopted children may be taken up until the earlier of thefifth anniversary of the date on which the child was placed for adoption, orthe child’s 18th birthday. For children born to your workers, it may be takenup until the child’s fifth birthday. The right to leave does not cover the son, as he was born before the cut offdate. This cut off date may be contrary to the Parental Leave Directive and isbeing challenged. Julian Parry Trade union recognition Q:  My company has justreceived a letter from a trade union asking us to give them voluntaryrecognition. What should we do? A:  The short answer is toseek more information from the union and delay the start of any formalprocedures under the Employment Relations Act 1999. Before agreeing tovoluntary recognition, it is important to get clear information from the unionon the groups of workers for whom they wish to be recognised, the union’sproposals for voluntary recognition and the precise mechanics of collectivebargaining, as they see it. This would include the timing of meetings, theissues on which they wish to be consulted and the areas where they wish to havepower to negotiate. It is important to remember that a request for voluntary recognition doesnot trigger the compulsory recognition procedures introduced by the EmploymentRelations Act 1999. This means that if there is voluntary recognition, outsideof the legislative procedures, then the company can in future walk away fromthe recognition agreement. Once the union makes a formal request under the legislation, however, thenthe automatic recognition procedures will begin. Once this happens, anyvoluntary recognition agreement will have to stay in force for three years. If agreement cannot be reached after a formal request is issued the unioncan involve the Central Arbitration Committee, who will order automaticrecognition where 50 per cent of staff in the relevant bargaining unit areunion members. The union may be reluctant to progress their application to CAC if they arenot confident of the level of support in the workforce, since if it fails, itwill be barred from making another application for three years. Warren Wayne Appointments without advertisingQ:  I have heard recently thatit is dangerous legally to recruit people or appoint existing employees tosenior posts without advertising these posts. This seems a bit of a hassle,particularly in cases where you know that advertising would largely be a wasteof time and resources. What’s the legal position?A: Appointing individuals without advertising is not specificallyunlawful, but frowned upon both by the EOC and the CRE Codes of Practice. Itcan also constitute indirect sex or race discrimination. This was the claimbrought against the Lord Chancellor when he appointed a special advisor withoutadvertising the post. Four elements need to be fulfilled for such a claim tosucceed:a) There must be a requirement or condition imposed.b) With which a considerably smaller proportion of one sex or race can comply.c) Which cannot be justified on objective grounds. d) Which must be to the applicant’s detriment because she cannot comply withit. Appointing an individual only from those people known to the appointor couldwell constitute imposing the requirement or condition as set out above at (a).        Whether or not a considerably smaller proportion of individuals of one sexor race can comply with the requirement or condition is a matter of fact ineach case. If, when looking at the relevant pools, the numbers of those whocould comply and those who cannot are very small in both instances, one couldargue that element (b) has not been fulfilled. The test of justification at (c) is strictly interpreted. The justifyingreason must be that the appointor acted in the way it did to achieve alegitimate objective in a way which was both necessary and appropriate. The”uniqueness” of the individual concerned, and the reasons for wishingto avoid advertising would need to be carefully canvassed. The “detriment” test (at (d) above) gives employers another ray ofhope. The claimant must show some material and substantial physical or economicdetrimental consequence as a result of the discrimination. Russell Brimelow Comments are closed. last_img

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