| Employment Update for Small Businesses | |
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Dear Peter,
Now is the time to take stock and to check that you are complying with the various legal requirements which are a necessary part of employing staff. As you will see below, you need to make sure that are paying enough, following non-discriminatory recruitment practices, and being cautious when dealing with more unusual employment issues (such as dealing with flexibility requests from employees with caring responsibilities). Feel free to contact me if would like any more information about any of these news items.
Why not forward this email to any of your contacts who might find it of benefit?
Regards
Peter Etherington  Tel: 01664 430373
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| Paying enough? |
| National Minimum Wage Campaign |
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If you are not currently paying your staff at the level of the National Minimum Wage or more, then watch out! The Government has recently launched a campaign to raise awareness of the National Minimum Wage and aims to reach 800,000 people with the message "£5.52, Are you on board" using a bus which will travel around the country. Visitors to the bus will be able to use a ready reckoner to calculate whether or not they are being paid enough and will receive advice about making a complaint if not.
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| Are temps employees? |
| Legal status of agency workers |
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The Court of Appeal has recently reached a decision in the case of James v Greenwich Borough Council which confirms that agency temps do not have the same protections under employment law, as permanent workers. From an employer's perspective it can be attractive to make use of agency workers, because they are not classed as employees and can be "dismissed" at will when the work dries up, or if they are not up to scratch. The downside is that they can also leave without giving notice. The argument in this case was that the agency temp had an "implied contract" with the end user (Greenwich Borough Council) because of the very lengthy period during which she had worked for them and because of the high degree of control that was exercised by Greenwich over her work. This argument was rejected, however, as Ms James had a contract with the agency and the agency had a contract with Greenwich. It is not necessary for a contract to be implied between Ms James and Greenwich in order to give effect to the relationship.
The status of agency temps has been subject to much litigation over the last several years, and there is now wide-spread concern over the lack of rights open to this category of worker. A TUC backed Private Member's Bill will be debated in Parliament on 22 February which aims to give better protection to agency temps and Gordon Brown, in response, has agreed to set up a commission, involving the TUC and CBI, to look at this issue. Expect to see much more on this topic in coming months. |
| Disability claims from carers? |
| Carers will not have to be disabled to claim disability discrimination |
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In Coleman v Attridge Law & Steve Law a claim of disability discrimination was brought by Miss Coleman against her employer. However, Miss Coleman is not disabled, and does not purport to be disabled. The claim, however, is that she was discriminated against on the basis that she is the main carer for her son, who is disabled. The Tribunal referred this case to the European Court of Justice (ECJ) in 2006 as the Disability Discrimination Act does not cover discrimination against carers and the Tribunal sought guidance from the ECJ as to whether it should do. The EC Equal Treatment Framework Directive covers, amongst other things, disability discrimination and EC member states need to ensure that their own legislation is consistent with the Directive - hence the referral.
The ECJ's Attorney General has recently handed down his opinion in this case (an opinion which is expected to be followed by the ECJ). He believes that carers should indeed be covered under the legislation and that, therefore, discrimination or victimisation of an employee on the grounds that they care for someone who is disabled should be unlawful under UK legislation.
This decision could potentially have far reaching implications, as the UK government may be obliged to change other discrimination laws to ensure that discrimination by association is outlawed.
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| Youthful enough for work? |
| Age discrimination in recruitment |
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Mr Terence McCoy, aged 58, won his claim of age discrimination against James McGregor & Sons Ltd when the Tribunal heard that the advert for a job for which he had applied had stated that applicants should display "Youthful enthusiasm". In addition, at interview he had been asked various age-related questions, including some related to his drive and motivation at the age of 58, which the Tribunal found indicated evidence of discrimination in this context.
This case reminds employers to exercise caution when taking on new staff. Don't fall into the trap of making assumptions about older workers' ability and ensure that anyone involved in the recruitment process has been adequately trained.
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Peter Etherington Employment Law Services
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