Human Rights Watch published an important report today exposing Tesco and other European multinationals who are failing to adhere to European and International Labout standards. Please read report below: http://www.independent.co.uk/news/world/americas/tescos-us-operation-accused-of-bullying-staff-2068104.html

In Gibb v Maidstone and Tunbridge Wells NHS Trust the Court of Appeal held that the Trust was bound by the terms of a compromise agreement it had entered into with its former Chief Executive.

Interesting, and somewhat perversely it was the Trust which sought to argue that it had acted irrationally in an attempt to wriggle out of an arguably excessive pay off it had agreed under the terms of the compromise agreement with its outgoing CEO.

Trusts, as do all public bodies, have a duty to act "reasonably". This is known as "Wednesbury reasonableness." If it does not its decision can be set aside on the basis that it is acting outside its authority. One aspect of this is that is that a public body must not act "irrationally generous" when paying its employees, or paying off its ex employees.

In this case the Trust sought to argue that its pay off to its CEO was just such an "irrationally generous" payment and so should be set aside.

However, the Court, who seemed entirely non plussed by the Trust's attempt to rely on its own irrationality  decided that compensation was not outlandish having regard to the fact that the agreement would have spared the Trust public controversy and the near certainty of a adverse tribunal finding that the CEO had been unfairly dismissed, which would also have had a detrimental effect on morale and management resources.

Justifyably the Court was damning of the Trust's waste of resources in dismissing the CEO without any fair reason, agreeing to such an inflated payment and then litigating the matter to try and renege on the deal, stating that "perhaps those responsible will now reflect that...all this money, both compensation and costs could have been spent on improving hygiene and patient care in the Trust's hospitals."

 

 

The European Council and Parliament have agreed measures intended to end incentives which encourage excessive risk taking by banks, which they believe played a significant role in the global financial crisis.

Some of the key measures are

• upfront cash bonuses to be capped at 30% of the total bonus and at 20% for particularly large bonuses
• between 40% and 60% of any bonus must be deferred for 3 years and recoverable if investments to do not perform as expected
• special measures will be introduced for bailed out banks, such as RBS - repayment of taxpayers being the priority
• limits will have to be established by all banks to help bring down the "overall disproportionate role played by bonuses in the financial sector"

The new rules will take effect in January 2011

for the full report go to http://www.europarl.europa.eu/news/public/story_page/042-78554-190-07-28-907-20100709STO78534-2010-09-07-2010/default_en.htm

The Tribunals Service has published its Annual Statistics Report 2009-10.

The report shows a significant increase in the number of claims submitted to the employment tribunals. The number of claims in 2009-10 rose to 236,100, a 56% increase on last year. The report suggests that the increase is not simply due to the recession, but to a rise in the number of multiple claims arising out of the same or very similar circumstances.

The Report also reveals that:

• The number of claims associated with unfair dismissal, breach of contract and redundancy rose 17 per cent on 2008-09, probably as a result of the recession

• Accepted claims are at their highest ever levels

 

The Government has announced that it intends to start work on extending the right to flexible working to all employees this year.

The proposal was a Liberal Party Manifesto commitment and was included in the Coalition Agreement publiushed on 20 May this year. The Government will be consulting with business with a view to bringing the proposal before the House later this year.

Currently only employees with 26 month's continuous employment who have or expect to have parental responsibility of a child aged 16 or under or a disabled child under 18 who receives Disability Living Allowance or those who are carers for an adult can apply for flexible working.

The Government has announced that it intends to enter into consultation to introduce a limit on the number of migrants from outside the Europe Union who can work in the United Kingdom. An interim limit will be introduced to avoid a rush of applications before the limit is set, and to ensure that the number of work visas issued stays below 2009 levels. This is part of a wider Government policy to reduce annual immigration from hundreds of thousands to tens of thousands. In addition to a 12-week consultation with business on how a limit can be introduced, the Government will ask the Migration Advisory Committee, the Government's independent adviser on migration issues, to consider the level at which the limit should be set, given its potential social and economic impact. The Government intends to put in place the permanent limits on non-EU economic migration routes by 1 April 2011. The interim limits will take effect from 19 July 2010.

The Chancellor has announced the details of the coalition Government’s ‘emergency’ Budget to deal with the  £149 billion budget deficit crisis.

 

The following measures will be relevant to employment:

 

• a review on when the retirement age will rise to 66
• a consultation on whether to phase out the Default Retirement Age
• 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 Prices Index, saving an estimated £6 billion a year by the end of the Parliament
• a 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
• 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 each of these years
• the threshold at which employers start to pay National Insurance will rise by £21 per week above indexation from April 2011
• the personal allowance, below which no income tax is payable, will be raised by £1,000 to £7,475 in April 2011.
• The basic rate limit for income tax will be frozen in 2013-14. There will be no change to the 50p rate of income tax.

 

 

 

 

 The chancellor's speech can be viewed here.

In J v DLA Piper LLP the EAT decided that whilst there is a technical difference between "depression" and a reaction to adverse life events in practice little turns on this because the tribunals are concerned to see what impact the symptoms of the impairment are on an individual's ability to carry out day to day activities. In other words the clinical label attached to the impairment is not what matters, it is the impact the symptoms have on a worker.

The EAT also stated that a GP is fully qualified to express an opinion on whether an individual is suffering from depression. However, in our opinion a specialist in this field may still provide better guidance on a worker's current impairment and its prognosis. Those acting for both employers and workers may still be better advised to chose to obtain an expert opinion.

Both the TUC and ACAS suggest that during the world cup employers try to be as flexible as possible in accommodating those who may wish to watch the world cup matches, be they supporters of the England team or indeed any other national team. This makes sense particularly in a year in which morale in many workforces across the country may be low due to redundancies, short time working or lower than expected bonuses or commission. Allowing workers a bit of flexibility or time off to get carried away and have a bit of fun (or maybe not if their team losses?) could give workers a bit of a boost and shouldn't cost employer's much if anything.

The best summary we found on how employer's should deal with workers during the weeks that follows can be found on the ACAS website, www.acas.org.uk, we have here a short summary of their advice.

Employers should try to be:

• flexible, where possible - for example, by altering start and finish times during the working day or allowing longer lunch break. Remember to balance the needs of your whole workforce including those who don't have an interest in the World Cup.
• clear about what you expect from employees - in terms of attendance and performance during the World Cup. Managing employees expectations of what might be possible is key to keeping them onside
• communicative - start talking to each other now about the World Cup and how you hope to manage leave and working hours
• open and honest - if you cannot accommodate any changes to your work practices then say so. Also, you may need to remind employees that any special arrangements for watching matches are only temporary
• fair - you need to be seen to be fair and not to discriminate about the way you respond to requests for time off and avoid favouritism - don't forget to ensure those people who aren't interested in football aren't in some way treated differently as a consequence, such as those with caring responsibilities, for example.

The scope of the protection given to those who are dismissed by their employer having made protected disclosures under the Public Interest Disclosure Act 1998 (inserted into Section 47B of the Employment Rights Act 1996) (the "whistleblowing provisions") extends to those who were not employed by that employer at the time they made the protected disclosure.

In BP plc v ELstone and anor the claimant had been employed by BP for over 25 years as a Senior Operations Manager before leaving to work for P Ltd. Whilst employed by P Ltd the claimant made a number of disclosures concerning health and safety in connection with BP contracts he was involved with to his former employer, BP.

In 2008 P Ltd dismissed the claimant for alleging breaching confidentiality.

3 days later the claimant returned to work for BP as a consultant. However, shortly afterwards BP informed the claimant that it would no longer engage him because it had learnt that he had been dismissed by P Ltd for breaching confidentiality.

The claimant brought a claim under the whistleblowing provisions against BP.

BP sought to argue that he could not because at the time he had made the disclosures he was not employed by it.

However, both the Employment Tribunal and the Employment Appeal Tribunal held that it mattered not that he was not employed by BP at the time he made the disclosures as the whistleblowing provisions "protect employees and workers, whoever they work for."

Whilst this decision is welcome, the EAT's acknowledged that the whistleblowing provisions do not extend protection to job applicants, which is an unacceptable omission.