Employment Bulletin - July 201012th Jun 2010

by on 12th Jun 2010

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Employers, beware! The BBC has reported that a website, www.doctorsnotestore.com, is producing fake new-style sick notes on NHS headed paper, bearing real doctors' names and stamped with an official stamp.

The site contains a disclaimer that says they are for "novelty" purposes only and goes on to say "We do not condone intentional false absence from an employer or educational institution. We do not condone illegal use of these documents..." However, the site says the certificates will be stamped "...BY A DOCTOR IN ANY PARTICULAR CITY FACILITY - London, Manchester, Birmingham, Glasgow - or any other area."

The NHS fraud squad said that selling sick notes is not illegal so a person could type one up and sell it without being prosecuted and it only becomes illegal when an employee uses it. Employers would be well advised to ensure that sick notes are genuine where they have any concerns at all. In the first instance they can be compared with previous sick notes received from the employee's surgery and a policy of 'spot-checks' could be introduced whereby doctors' surgeries are contacted to verify authenticity .

Neil Andrews

Partner, Coles Miller LLP

'Emergency' Budget 2010

The Chancellor, George Osborne, delivered his Budget Report on 22 June 2010. The key employment-related announcements include:-

Default Retirement Age: the Budget confirms that a consultation on "whether" to phase out the Default Retirement Age from April 2011 will take place. This is to be contrasted with the commitment in the coalition agreement that the DRA would be phased out.

Reduction in tax and NICs for the lower-paid: the personal allowance, below which no income tax is payable, will be raised by £1,000 to £7,474 in April 2011. The increase of £570 to the threshold at which employees start to pay National Insurance will take effect from 6th April 2011 to coincide with the increase of 1% in employee contributions (from 11% to 12%) and in employer contributions (from 12.8% to 13.8%). The threshold at which employers start to pay National Insurance will be increased by £21 above the RPI, also from 6th April 2011.

Other significant employment-related measures include:

From 2011 the majority of benefits - presumably including maternity pay, sick pay, etc. - will be up-rated in line with the Consumer Price Index rather than the Retail Price Index, in order to save over £6 billion a year by the end of the Parliament;

A two-year pay freeze in the public sector. However, public servants who earn less than £21,000 will receive a flat pay rise of £250 in both these years; and

review of fairness in public pay to ensure that those at the top of organisations are paid no more than 20 times the salaries of those at the bottom.

Failure to follow disciplinary procedures can be breach of contract

The Court of Appeal judgment on a preliminary point in the case of Edwards v Chesterfield Royal Hospital NHS could have interesting implications in that it would appear to allow an employee to sue an employer for breach of contract and future losses if an employer causes an unfair dismissal by failing to follow a contractual procedure.

In this case Mr Edwards, a consultant surgeon working for the NHS Trust, was dismissed for gross professional and personal misconduct following a disciplinary hearing. He argued that the Trust conducted the disciplinary hearing in serious breach of its contractual procedures, which caused him to be dismissed and in turn prevented him from finding permanent NHS employment. He claimed this caused him a career-long loss of £4 million. The Court of Appeal was asked to decide on the preliminary point of whether Mr Edwards was restricted to a breach of contract claim for his 3 month notice period entitlement, or if he could claim for all his losses. The Court has decided that he is entitled to pursue damages in the normal way for the breach of contract, without limitations.

The important point for employers to note is that if an employer causes an unfair dismissal by failing to follow a contractual procedure, it could be that potentially there is nothing to stop the employee from suing for damages for future losses based upon that breach. There would be no cap to the compensation and it would be a way to circumvent the statutory unfair dismissal cap.

Inflating redundancy scoring for female on maternity leave was discriminatory

In De Belin v Eversheds Legal Services Ltd an employment tribunal held that the employer had discriminated against a male lawyer on grounds of sex when, in a redundancy scoring exercise, it inflated the score of his female colleague to take account of the fact that she was on maternity leave.

The claimant was placed in a redundancy selection pool, together with a female colleague who was on maternity leave. One of the selection criteria was "lock-up" - the time between carrying out a piece of work and receiving fees for it - measured over the course of the previous year. The claimant received a score of 0.5 and his female colleague was awarded a notional score of 2, since she was on maternity leave at the end of the period and no lock-up figure was ascertainable for her.

The claimant's overall score was 27 and the female colleague's was 27.5. Accordingly, it was the claimant who was made redundant.

The tribunal decided that inflating the female colleague's score amounted to less favourable treatment on the grounds of sex, and that the claimant had been discriminated against and unfairly dismissed. The employer could have scored the exercise differently; for example, it could have chosen a different period, when the female employee was working and not absent on maternity leave.

The tribunal also found that the employer could not rely on the "special treatment" qualification in the sex discrimination legislation, which provides that "no account shall be taken of special treatment afforded to women in connection with pregnancy or birth". This qualification could not be interpreted to provide women with blanket special treatment.

Vetting and barring scheme on hold

Earlier this year, we reported that the Independent Safeguarding Authority ("ISA") would be taking over responsibility for deciding who should be barred from working with children and vulnerable adults, working closely with the Criminal Records Bureau. The idea was that eventually everyone who wishes to work in a "regulated" activity would be required to register with the ISA but this would be phased in over a number of years.

The vetting and barring scheme was much criticised and is now to be "remodelled", with the government announcing an immediate halt to the requirement for individuals working with children or vulnerable adults to register with the ISA. Voluntary registration for those working in a "regulated" activity was due to commence on 26th July 2010 and registration was set to become compulsory from November 2010. This registration has now been stopped.

With full details of how the scheme will change yet to be finalised, Home Secretary Theresa May has indicated that there is a need to scale back the scheme to "common sense and proportionate" levels. In the meantime, various other aspects of the scheme will remain in force: ISA will continue to maintain two lists, one in respect of adults and one in respect of children; the duty of referral will continue to apply; and it will still be a criminal offence to employ barred individuals.

Accrued but untaken annual leave cannot be reduced if a worker changes from full to part-time

In the recent case of Land Tirol, the European Court of Justice has held that accrued paid leave not yet taken in a leave year cannot be reduced, or paid at a reduced rate, because the worker then reduced his or her working hours from full to part-time.

This applies only if the worker has not been able to exercise his or her right to the accrued leave before going part-time, for example where maternity leave intervenes between accrual of the leave and going part-time.

This decision does cause problems because, under the Working Time Regulations, payment for leave is calculated by reference to a 'week's pay' at the time the leave is taken, not when it was 'accrued', something that will need to be addressed in the future.

Government to 'cap' number of migrant workers entering the UK

The Government has announced that it intends to consult on introducing a limit on the number of migrants from outside Europe coming to work in the UK. An interim limit will be introduced, with effect from 19 July 2010, to avoid a rush of applications before the limit is set.

The interim measures will amend the points-based immigration system, established under Labour, so that the number of highly skilled (Tier 1) migrants is capped at current levels and the number of points needed by non-EU workers who come to do highly skilled jobs increases from 95 to 100. The number of certificates of sponsorship that licensed employers can issue to those who wish to come to fill skilled job vacancies will also be limited.

And Finally...

A Czech tram driver was recently hailed as a hero after he chased an empty tram on a bicycle as it crossed a busy street, travelling for a kilometre without anyone operating it. He borrowed the bicycle from a passerby, managed to board the tram and stop it, but had a heart attack after the stress of the incident. It appears that the tram didn't have its brakes on and that is what led to it breaking through the tram depot gates and setting off on its journey.

A hospital spokesperson said that the tram driver is not in immediate danger, which is just as well given that a rail safety inspection had ruled out defect and says it was most likely the driver's human error that led to the tram's getaway in the first place. Czech law is quite harsh and he now faces the possibility of a three year prison sentence, if convicted of a serious breach of work duties....

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