PersonnelFILE May 2009

Brethertons Expands in Pursuit of Regional Growth

Regional Law firm Brethertons is bucking the national trend for Law firms having completed a series of new strategic appointments to accelerate its growth in the region.

The Private Client, Insolvency and Litigation teams at Brethertons have all recruited new talent.  In total, five new specialists have joined the firm as Brethertons positions itself for continued profitable growth in 2009.  While other Law firms are shedding staff, Brethertons is developing new areas of Law by attracting new senior staff from City Law Firms despite the challenging market and current economic conditions.

Edward Bible is a dual qualified Lawyer and licensed insolvency practitioner and joins Brethertons from Darby's Solicitors in Oxford to head up Brethertons new Insolvency team.  He advises insolvency practitioners, banks and other clients on both contentious and non-contentious matters and has been rated in Chambers & Partners’ guide to the legal profession as “bright and practical”.  He has particular expertise in dealing with technical problems in administrations, liquidations and bankruptcy.

Ignacio Morillas-Paredes is a dual qualified Spanish and English Lawyer and joins Brethertons from a London Law firm as part of the Litigation team.  Ignacio’s niche specialist area of practice will focus on cases relating to Spanish property development disputes, ongoing Civil Litigation and Travel Litigation/Cross Borders Litigation cases, Expert Witness and Spanish Commercial Litigation work.  He is currently working on a potential ‘Class Action’ representing 40 people on the Ocean View Properties case.  Ana Mitri joins Brethertons in a paralegal role to bolster the International law offering.  Ana is from Argentina and speaks fluent Spanish and English.

Tristram Van Lawick, who is himself a farmer, specialises in Agricultural Law and joins from Lodders Solicitors in Stratford Upon Avon.  Tristram will head up the firm's Agricultural law sector.  His team will be responsible for advising on tax and succession planning for families, farm and bare land sales and purchase tenancies agreements, grants and change of land use and diversification issues.

Paramjeet Kaur, an experienced property litigation Solicitor joins Brethertons from Pinsent Masons having previously worked at Eversheds and headed up the legal team at Stratford on Avon District Council.  Pam’s areas of expertise include landlord and tenant disputes incorporating rent/service charge arrears, dilapidations, lease terminations, insolvency related disputes as well as freehold issues.

Last year, Brethertons moved up the Legal 500 table of UK law firms from 331 to 221 place and is set to continue its growth expansion plans with more lateral hires expected.  The firm has experienced successful expansion in a recession year yielding 10% growth and has been shortlisted for The Lawyer Awards in the best regional/national law firm category and has also been shortlisted for the Enfranchisement Awards for regional Solicitor.

Richard Pell, Senior Partner explains: “These appointments, together with our ongoing strategy for developing our service lines and the quality of advice we offer our clients, will take us another significant step forward.  Our new additions are the first of the new financial year with more new senior staff members to join in the next month.”

Last month Brethertons hit the legal headlines with the promotion of Trevor Dyer, a non-practising lawyer and Finance Director to Partner status.  Trevor was one of only 14 such appointments approved by The Law Society in the new framework of legal structure open to UK Law firms.

A Guide to Dealing with Requests for Flexible Working Arrangements

From 6 April 2009, the statutory right to request flexible working arrangements was extended to parents of children aged 16 and under. Employees with caring responsibilities for children aged up to 6 (18 and under where the child is disabled) and carers of adults already have this right.

An employee must have completed 26 weeks’ continuous employment with their employer in order to qualify for the right and can only make one request in any 12-month period.

There is a statutory procedure which must be followed when a request for flexible working arrangements is made.

The employee’s request must give details of the revised working pattern they wish to adopt. After acknowledging receipt of the request, the employer has a duty to consider it seriously to decide whether the business can accommodate the requested working pattern.

If the employer is able to agree to the request without further discussion, the employee must be notified of this in writing. If the employer wishes to discuss the application, a meeting must be arranged for discussions to take place with the employee within 28 days of receiving a valid request. If this is not possible, the deadline can be extended with the written agreement of the employee.

The employee has the right to be accompanied at the meeting by a work colleague or a trade union representative. That person may address the meeting and confer with the employee but may not answer questions on the employee’s behalf.

The employer must notify the employee of their decision within 14 days of the meeting. Further time to consider a request requires the employee’s written consent. If the employer and/or the employee are uncertain whether the new arrangements will work in practice, it is possible to undergo a trial period, which could take place during an agreed extension to the time allowed before the employer makes their final decision.

If the employer accepts a flexible working request, they must write to the employee giving details of their new working pattern, the date on which it will start and stating that the arrangement means a permanent change to the employee’s terms and conditions of employment (unless agreed otherwise). The notification must be dated.

If you decide that you cannot accommodate any kind of flexible working for an employee, you must write to them stating which of the listed business grounds for refusing a request apply and explain why these apply in the circumstances. The notification must be dated and set out the procedure to follow should the employee wish to appeal against the decision.
You can reject a flexible working request on only a limited number of set grounds. These are:

• planned structural changes
• the burden of additional costs
• a detrimental impact on quality
• the inability to recruit additional staff
• a detrimental impact on performance
• the inability to reorganise work among existing staff
• a detrimental effect on ability to meet customer demand; or
• lack of work during the periods the employee proposes to work.

Should the employee wish to appeal against the decision, they must do so in writing within 14 days of the date of receiving the written notice of refusal. The employer must arrange an appeal meeting within 14 days of receipt of the employee’s appeal notice. Where possible, the appeal should be heard by a different manager. The employer must inform the employee of the outcome of the appeal in writing within 14 days of the date of the appeal meeting.

The sanction against an employer who fails to grant a request where clear business reasons do not apply is that an employment tribunal can order that the application be reconsidered and can award a maximum level of compensation of eight times a week’s pay, subject to a statutory cap.

Where the employer agrees to change the employee’s terms of employment, there is no provision in the legislation for the employee’s contract to revert back to what it was should their circumstances change. It may, therefore, be sensible to discuss with the employee whether they wish the change to be for a specified period only.

Employees have protection against detrimental treatment for seeking to exercise their rights under this law and any dismissal for having done so will be automatically unfair.

The Department for Business, Enterprise and Regulatory Reform has made available forms for employees and employers to use at each possible stage of the process when a request for flexible working is made. It is not mandatory to use them, but employers will find them useful to make sure that all the statutory requirements are met. The forms can be found at http://www.berr.gov.uk/whatwedo/employment/workandfamilies/flexible-working/flexforms/index.html.

Disability Discrimination - The Correct Comparator

In Child Support Agency (CSA) v Truman, the Employment Appeal Tribunal (EAT) has ruled that the correct comparator test in cases of disability-related discrimination in an employment law context, under Section 3A of the Disability Discrimination Act 1995 (DDA), is the same as that applied to the housing provisions of the DDA by the House of Lords in June 2008 in London Borough of Lewisham v Malcolm.

In the latter case, Mr Malcolm, who suffered from mental illness, was served notice to quit after he had sublet his flat in breach of his tenancy agreement. In deciding whether or not he had been treated unfairly, Lord Bingham stated that the correct comparison to be made was with a tenant who did not have a mental disability who had breached the terms of their tenancy by subletting. In such circumstances, a non-disabled tenant would have been equally in breach of the tenancy agreement and would have been treated in the same way. CSA v Truman was heard by the Employment Tribunal (ET) before the decision of the House of Lords in Malcolm.

Two findings of the ET were not challenged on appeal. Firstly, the CSA had failed to make reasonable adjustments with regard to the timely provision of suitable office furniture to enable Mrs Truman, who suffered severe back problems and was unable to work in the office, to work at home. Secondly, it had made no attempt to make reasonable adjustments to enable her to carry on working after the introduction of a restructuring plan, under which her working at home was deemed no longer acceptable.

At issue before the EAT were the following findings of the ET, which were based on the comparator test in Clark v Novacold, which was that the comparator did not have to be someone in the same circumstances as the disabled person but someone to whom the reason for the disabled person’s treatment did not apply. Firstly, Mrs Truman had suffered disability-related discrimination because she was threatened with disciplinary proceedings after a complaint of bullying and harassment was made against her. Mrs Truman had shouted at another employee in an angry telephone conversation that took place after she had waited all day to take delivery of a specialist desk, which failed to arrive. Secondly, the CSA’s treatment of Mrs Truman with regard to her taking ill-health retirement amounted to disability-related discrimination. She wanted to work, not retire. The ET found that she was less favourably treated than a comparator who could work full-time in an office and the defence of justification was not made out.

The CSA challenged these findings on the ground that in using the test laid down in Novacold, the ET had used the wrong comparator. The comparator test used in Malcolm should apply.

Mrs Truman contended that the decision of the House of Lords in the Malcom case did not apply to employment law, but the EAT rejected this argument. In its view, the narrower comparator favoured by the House of Lords applied equally in an employment law context and the wider comparator used in Novacold should no longer apply. The correct comparator as regards the disciplinary proceedings was a non-disabled employee who had abused another employee over the telephone. The employer would have acted towards the comparator in the same way and so Mrs Truman had not been treated less favourably. The correct comparator as regards the issue of ill-health retirement was a non-disabled employee who was unable to work full-time in an office. However, the result of that finding was not so clear cut and the EAT remitted this aspect of the case to the same ET for further consideration.

HHJ Peter Clark stated that if it was thought necessary that there should be different comparators in different contexts, that was a matter for Parliament.

Brethertons says “The proposed Equality Bill offers the Government an opportunity to amend the law should it wish to do so. Meanwhile, it is likely that the comparator question will be revisited by a higher court and we await the outcome with interest.”

Discrimination by Association – Update

Following the decision of the European Court of Justice (Coleman v Attridge Law) that the EU Equal Treatment Framework Directive does afford protection to an employee with caring responsibility for a disabled child from discrimination at work on the grounds of her child’s disability, the London South Employment Tribunal (ET) has ruled that it does have jurisdiction to hear Ms Coleman’s claims of discrimination and harassment on the grounds of her son’s disability. In the ET’s view, whilst the wording of the Disability Discrimination Act 1995, which implements the Equal Treatment Framework Directive into UK law, does not make this clear, it should be read as providing protection to a person who is ‘associated with’ a disabled person, not just one who is disabled.

Employers are advised to check their recruitment and equal opportunity policies in the light of this decision. In particular, care should be taken when considering requests for flexible working arrangements made by employees who have primary caring responsibility for a disabled or elderly person.

Dispute Resolution – Are You Prepared for the New Regime?

In order to establish what it is hoped will be a more flexible system for dealing with workplace disputes, as of 6 April 2009 the Employment Act 2008 repeals the Statutory Dispute Resolution Procedures in their entirety. In their place will be a revised voluntary Advisory Conciliation and Arbitration Service (ACAS) Code of Practice, which sets out the basic principles for ensuring fairness and transparency when handling disciplinary problems and grievances in the workplace. The new arrangements will apply to any case where the trigger event takes place on or after 6 April 2009. It should be noted that the Code of Practice does not apply to dismissals due to redundancy or the non-renewal of fixed term contracts on their expiry.

It will not be automatically unfair dismissal if an employer fails to comply with the Code of Practice. However, an employment tribunal will have the discretion to increase or reduce an award by up to 25 per cent where either side unreasonably fails to comply with the new Code.

The Code of Practice advises that attempts should always be made to settle disciplinary and grievance issues in the workplace. Where this is not possible, the use of an independent third party should be considered to help resolve the problem. This need not be someone from outside the organisation but could be an internal mediator, as long as they are not involved in the disciplinary or grievance issue. However, in some cases, an external mediator might be appropriate.

The 10-page ACAS Code of Practice can be found at http://www.acas.org.uk/index.aspx?articleid=2174.

ACAS guidance on mediation can be found at http://www.acas.org.uk/index.aspx?articleid=1680.

The Code of Practice is supported by non-statutory guidance, which is more detailed and provides good practice advice on dealing with discipline issues and grievances in the workplace. The 74-page guidance contains sample disciplinary and grievance procedures, as well as sample letters, and can be found at http://www.acas.org.uk/CHttpHandler.ashx?id=1043.

Employers should be aware that there are transitional arrangements in place as regards disciplinary and grievance cases where the trigger event occurred before 6 April or was ongoing at that date. Further information on the transitional provisions can be found on the website of the Department for Business, Enterprise and Regulatory Reform at http://www.berr.gov.uk/whatwedo/employment/Resolving_disputes/disputes_after_6_april_2009/index.html.
Employers are advised to involve employees in the development of revised disciplinary and grievance procedures and to make sure that all staff understand what the new rules are and have access to them.

ECJ Rules on UK’s Mandatory Retirement Age But the Fight Goes On

People aged over 65 who want to keep on working face an uphill battle, following the long-awaited judgment of the European Court of Justice (ECJ) in a challenge to the UK’s Employment Equality (Age) Regulations 2006, which were introduced to stamp out ageism in the workplace. The challenge was made by Heyday, a branch of the charity Age Concern.

Specifically, Heyday challenged the Government over the inclusion in the Regulations of a mandatory retirement age of 65 on the grounds that this meant that they do not fully implement the EU Equal Treatment Framework Directive.

The ECJ has ruled that a national retirement age may be lawful, but such a measure must be justified by legitimate social policy objectives, such as those related to employment policy, the labour market or vocational training. It is for the national courts to decide whether a compulsory retirement age can be justified as a proportionate means of achieving a legitimate aim. There is no requirement for the Regulations to contain a list of legitimate aims that are permissible.

The case will now return to the High Court to determine whether or not the UK’s imposition of the retirement age limit of 65 passes the justification test. There are an estimated 800 age discrimination tribunal claims that have been stayed pending this decision.

However, Age Concern and Help the Aged have vowed to fight on and have called on the Government to abolish the mandatory retirement age, thereby obviating the need for the case to return to Court.

Nearly 40 per cent of people wish to continue working after 65 and the two charities have criticised the Government for applying double standards and sending mixed messages to older workers. On the one hand they are being encouraged to carry on working beyond the age of 65 yet there is legislation in place that can prevent them from so doing. The mandatory retirement age for civil servants was scrapped some months ago and, were the rule to apply to MPs, one in eight of them would be out of a job.

Brethertons says “In practice, this means that a compulsory retirement age is lawful if the Government can demonstrate that its introduction was justified in order to fulfil legitimate aims connected with national social or employment policy. The Department for Business, Enterprise and Regulatory Reform has said that it will review the default retirement age in 2011.”
 

ECJ Rules on Workers on Long-Term Sick Leave

The decision of the European Court of Justice (ECJ) in the long-running case of Stringer v HM Revenue and Customs (HMRC) has significant implications for employers with employees on long-term sick leave and it is likely that changes to the Working Time Regulations 1998 (WTR), which implement the European Working Time Directive in the UK, will be necessary.

The case dealt with the issue of whether or not HMRC employees were entitled to accrue holiday pay during a period of long-term sick leave.

In April 2005, the Court of Appeal held, in a unanimous decision, that the right to four weeks’ statutory paid holiday under the WTR does not continue to accrue whilst an employee is absent on long-term sick leave. The decision only referred to employees who are absent for an entire holiday year and was based on the argument that leave cannot be taken by someone who is not at work. In addition, the holiday entitlement under the Regulations is designed to ensure that minimum health and safety standards apply to working time. If an employee is not at work, he or she cannot derive any health benefit from taking leave.

In December 2006, the House of Lords remitted certain questions regarding the interpretation of the Working Time Directive to the ECJ, which has now handed down its judgment.

The ECJ ruled that employees who have been on sick leave for a long period should be allowed to take accrued holiday on their return to work or be paid in lieu at their normal rate of pay if the employment relationship ends without them returning to work. The national courts can decide whether the paid leave can be taken during a period of sickness or whether it should be carried over to another year, but the right to take the leave is not extinguished.

The House of Lords will now consider the case in the light of this ruling.

In the UK, the WTR state that workers must take a minimum of four weeks’ holiday in each leave year and, from 1 April 2009, payment in lieu of untaken minimum leave is not permitted except on termination.
 

Employment Law Changes – that came into effect in April 2009

Changes to employment law and practice led by the Department for Business, Enterprise and Regulatory Reform are normally implemented in either April of October. The reason for this is to make life easier for employers, who must ensure that their policies and procedures comply by the implementation dates – or risk significant penalties.

The main changes that were introduced in April 2009 are:

Repeal of the Dispute Resolution Procedures – 6 April 2009

The Employment Act 2008 repeals the statutory dispute resolution procedures and related provisions dealing with procedural unfairness in dismissal cases. In their place will be a revised voluntary Advisory Conciliation and Arbitration Service (ACAS) Code of Practice supported by non-statutory guidance aimed at encouraging employers and employees to resolve issues both earlier and informally. Changes are also made to the law relating to conciliation by officers of ACAS, with the removal of fixed periods for conciliation. The Employment Tribunal (ET) will have the discretion to increase or reduce an award by up to 25 per cent where either side unreasonably fails to comply with the new Code of Practice. The Code of Practice can be found at http://www.acas.org.uk/.

The Employment Tribunals (Constitution and Rules of Procedure) Amendment Regulations 2008 make consequential procedural changes, resulting from the Employment Act 2008, to ET practice and also make changes with regard to default judgments, electronic communications, the withdrawal and dismissal of proceedings and Stage 1 hearings in equal value claims.

The Right to Request Flexible Working – 6 April 2009

From 6 April, the right to request flexible working arrangements is extended to those with parental responsibility for children aged 16 and under. For further information, see http://www.berr.gov.uk/whatwedo/employment/workandfamilies/flexible-working/index.html.

Enforcement of the National Minimum Wage – 6 April 2009

The Employment Act 2008 makes changes to the way in which payment of the National Minimum Wage is enforced. HM Revenue and Customs (HMRC) officers are given wider powers of investigation and restrictions are removed on the exchange of information between HMRC and the Employment Standards Inspectorate. There will be a new penalty for employers who underpay their workers and a new method of calculating arrears that takes into account the length of time over which underpayment has occurred.

For further information, see http://www.berr.gov.uk/whatwedo/employment/pay/national-minimum-wage/page44848.html.

Changes to Trade Union Membership Law – 6 April 2009

The Employment Act 2008 includes changes that will bring trade union rules in line with European legislation and grant unions the right to expel or exclude members who are also members of political parties such as the British National Party.

Increase in Holiday Entitlement – 1 April 2009

In October 2007, the minimum statutory paid holiday entitlement was increased from 20 days a year to 24 days for those working a 5 day week (pro-rata for part-time workers). From 1 April, the minimum statutory annual leave entitlement will be increased to 28 days a year. Paid time off does not have to be given for bank and public holidays but, if it is, employers can include this in the holiday entitlement. For further information, see http://www.berr.gov.uk/whatwedo/employment/holidays/index.html.

Statutory Maternity Pay – 5 April 2009

The standard weekly rate of Statutory Maternity Pay, Statutory Paternity Pay and Statutory Adoption Pay will increase from £117.18 to £123.06 for payment weeks starting on or after 5 April 2009.

Statutory Sick Pay – 6 April 2009

The weekly rate for days of sick absence commencing on or after 6 April 2009 will increase from £75.40 to £79.15.

Employment Judges Sitting Alone

From 6 April 2009, Employment Judges sitting alone are authorised to hear cases dealing with holiday pay claims under the Working Time Regulations 1998 and also Stage 1 equal pay (work of equal value claims).

Contracts of Employment Webinar

As an employer, you don’t need to be reminded that there have been numerous changes in Employment Law in the last few years – over 70 pieces of primary legislation in the last 10 years alone.

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