Welcome to April’s edition of our employment law newsletter, keeping you up to date with changes to employment law, and informing you of recent case law developments.

Income Tax (Pay as you Earn) (Amendment) Regulations 2011

This came into force on 6^th April 2011.  Prior to its introduction when a payment was made to a departed employee after their P45 had been produced, Income Tax was always deducted at basic rate only.  However, since 6^th April 2011, tax at the full 20%, 40% or 50% rates must be deducted from post termination payments (using the “0 T” tax code).

Foreign Workers

The Accession (Immigration and Worker Registration) (Revocation, Savings and Consequential Provisions) Regulations 2011 have been laid before Parliament and are due to come into force on 1^st May 2011.  As a result, the Work Registration Scheme will close.  This was set up by the government to monitor how many people from the A8 Member States that joined the EU in 2004 came to work in the UK.

Flexible Working Regulations  

The flexible working for parents of children under the age of 18 Regulations have been revoked.  The coalition government announced in March 2011 that this extension would be scrapped in order to include growth by removing red tape for business.  The right to request flexible working remains for parents of children under the age of 17 (or under 18 if the child is disabled).

Agency Workers Regulations

The BIS has published the draft Agency Workers Regulation Guidance and has invited comments on the draft to be submitted by 15^th April 2011.  The final guidance is expected to be on the business link website by the end of April.  The draft guidance provides information on who falls within the scope of the Regulations and the consequences of working through multiple agencies for multiple hirers, etc.

Equality Act

The Equality and Human Rights Commission Codes of Practice on the Equality Act 2010 came into force on 6^th April 2011.  The previous statutory codes of practice pre-October 2010 are now revoked.

National Minimum Wage Increases for October 2011 will be as follows:

1. Workers aged 21 and over will rise from £5.93 to £6.08 per hour
2. Workers aged between 18 and 20 will rise from £4.92 to £4.98 per hour
3. Workers aged 18 and under but above compulsory school age who are not apprentices will rise from £3.64 to £3.68 per hour
4. Workers under 19 years of age and those aged 19 and over but in their first year of apprenticeship will rise from £2.50 to £2.60 per hour
5. All other apprentices will continue to receive National Minimum Wage at the appropriate age rate.

The Accommodation offset will rise from £4.61 to £4.73 per day.

CASE DEVELOPMENTS IN MARCH

Unfair Dismissal

(Moore -v- President of the Methodist Conference, EAT)

A Methodist minister was allowed to pursue a claim of unfair dismissal, whereas the Tribunal had previously found the Minister not to have been an employee.

Sexual Orientation

(Thomas Sanderson Blinds Limited -v- English)

It was held that a heterosexual employee who was subjected to homophobic banter did not suffer harassment under the Sexual Orientation Regulations.  The Tribunal took into account the employees own “extremely offensive behaviour” and that he had remained friends with those he alleged had tormented him and had not complained about them.

Religion or Belief Regulations

(Hashman -v- Milton Park (Dorset) Limited)

A general belief in the sanctity of life extending to an ardent belief in anti fox hunting constitutes a philosophical belief for the purposes of the Regulations.  However, the Tribunal went to lengths to explain that this case turned on specific facts and would not necessarily cover all those opposed to fox hunting.

(Maistry -v- BBC)

The Tribunal has held that a belief in the “higher purpose” of public sector broadcasting to encourage debate and citizenship was a philosophical belief that qualified for protection under the Religion or Belief Regulations.

Disability Discrimination

(Tameside Hospital NHS Foundation Trust -v- Mylott)

A Tribunal’s decision that a failure to facilitate a disabled employee’s application for ill health retirement amounted to a breach of duty to make reasonable adjustments has been overturned by the EAT.  The duty to make reasonable adjustments was stated to be steps to be taken by an employer in order to allow a disabled employee to remain in employment, not to enable them to leave employment on favourable terms.  This case is also authority for a claim for aggravated damages.  The EAT stated that although the employee’s manager had been “brusque and insensitive”, this was not sufficient to justify an aggravated damages award.

Sex Discrimination

(Eversheds Legal Services Limited -v-  De Belin)

The law firm inflated a score of a female colleague who was on maternity leave whist carrying out a redundancy selection exercise.  It was held that this discriminated against a male colleague in the grounds of this sex.  Pregnant employees and those on maternity leave should be treated more favourably than male colleagues to the extent that it is reasonably necessary to remove the disadvantages by reason of their condition.  In this particular case the employer had awarded the female employee a maximum score in respect of one of the selection criteria, whilst the male colleague was left with his actual score.  It was held not to be a proportionate means of removing any disadvantages suffered by the women.  In these circumstances, it is always advisable to measure both employees actual performance during the period before the women’s maternity leave actually started.

Legal Worker and Discrimination Case

(Allen –v- Hounta and an Other)

An unusual case where it has been held that an individual who entered the UK dishonestly and who had no right to work, was not prevented from pursuing a race discrimination claim against his UK employers.  This is different to all previous cases where all illegal workers claims had been barred on the ground of illegality.  In this case it was stated that the employee’s illegal conduct had been instigated by the employers who had wanted her to come to work for them in the UK.

SOSR Dismissals

(Ezsias -v- North Glamorgan NHS Trust)

A consultant surgeon claimed that he had been automatically unfairly dismissed due to making protected disclosures and on the basis that the NHS trust had failed to implement disciplinary procedures under the nationally agreed Whitley Council Terms.  The employer had investigated the Claimant’s alleged protected disclosures were not made in good faith and his conduct had led to the breakdown of relationships as many of the Claimant’s colleagues would not be happy to work with him again.   It was held that the disciplinary procedures were not applicable as the allegation did not relate to the Claimant’s conduct but for some other substantial reason, being the breakdown of trust and confidence.

If you require any further clarification in relation to the above developments, or if you need any other assistance then please do not hesitate to contact our team of specialist employment solicitors on 0161 832 3304:

Shiva Shadi                      Partner

Anna Bunting                    Associate

Claire Reddington             Solicitor