Member News

Do you know the latest position on sickness absence and holiday entitlement? When it is safe to dismiss an employee accused of criminal activities? Are you confident about when and how to hold ‘without prejudice’ discussions with your employees?

Steeles Law is proud to be sponsoring and hosting the Norfolk Chamber of Commerce HR Forum on Wednesday, 12 September 2012. Expert speakers from the Steeles Law employment team will be covering a number of notoriously tricky issues in the workplace at this HR Forum:

• Sickness absence and holiday: the latest position on holiday entitlement during sickness absence, including the latest court rulings and proposals for amending the Working Time Regulations 1998.• ‘Without prejudice’ conversations: when and how to go about holding these difficult conversations, including new proposals for ‘protected conversations’ under the Enterprise and Regulatory Reform Bill.• Bonuses and maternity leave: considering the legal position in relation to the entitlement to bonuses of women on maternity leave.• Criminal activities: dealing fairly with an employee accused of a criminal offence outside the workplace.• Bank holidays: how to calculate bank holiday entitlement for part time employees• IVF treatment: looking at the legal position in relation to female employees undergoing IVF treatment.

Lorna Townsend, Principal in the Steeles Law employment team comments: “HR professionals frequently have to grapple with tricky areas of law for which there is not necessarily a black and white answer. At this Forum, through a number of practical case studies, we will tackle some of the tricky questions on which we have previously been asked to advise by our clients. We hope to provide some clear, practical advice on these topics together with the most up to date legal position, including future proposals for reform”.

The HR Forum will be held at Dunston Hall near Norwich, from 2.00pm to 5.00pm on 12 September 2012. Further information, including details of how to book, is available from the Chamber of Commerce website

Lexia Media is celebrating a successful start to the summer with new client wins.

The company has been selected by Echo Barrier to help enhance the company’s trade and national profile.

Echo Barrier is at the forefront of noise-reduction and is becoming internationally recognised for its acoustic barrier technology. The company’s product designs are helping construction and high footfall sites throughout the UK to achieve significantly reduced noise issues – benefiting both contractor and nearby communities.

The firm approached Lexia Media to take part in a competitive tender, before selecting them for the creativity of their proposals and their established credentials with trade and national PR.

Lexia has also been selected by SO ACTIVE, a social enterprise that helps people with their physical and mental health through sport, outdoor and leisure activities. Lexia will be helping SO ACTIVE increase brand awareness across Suffolk and throughout the UK, as they continue their successful growth.

Managing director Deborah Watson said: “We are very excited to be increasing our portfolio of clients with a range of national and local, trade and consumer clients. The team is looking forward to implementing some creative campaigns for these organisations. We’re delighted to have been chosen for these contracts and we’re excited to get started.”

Employment Principal Lorna Townsend considers a recent decision of the Employment Appeal Tribunal (EAT), in which it was held that a diminution in work alone did not result in a redundancy situation when there was no reduction in the number of employees required to carry out the work.

In this case (Welch v Taxi Owners Association (Grangemouth) Ltd), the claimant, a radio controller, brought a claim for constructive dismissal after her employer sought to impose a reduction in her hours. She argued before the tribunal that her employer should have approached the issue as a redundancy situation.

The tribunal hearing her claim concluded that there was no redundancy situation, since the company’s requirements for radio controllers had neither ceased nor diminished at the relevant time. It held that the claimant’s dismissal had been fair for ‘some other substantial reason’, namely the company’s genuine business need to reduce the hours of its radio controllers following a downturn in business.

The EAT has since upheld this decision, confirming that the claimant’s dismissal was not by reason of redundancy. In accordance with long-established case law authority, it was satisfied that for a redundancy situation to arise there must a diminution or cessation in the employer’s requirement for employees (i.e. the number of employees) to carry out the work in question, rather than merely a diminution in the work itself.

Comment

The difficulty with this decision is that it appears to directly conflict with the recent EAT decision in Packman t/a Packman Lucas Associates v Fauchon (see our previous briefing). In that case, a different division of the EAT concluded that an individual who was dismissed as a result of refusing to accept a significant reduction in hours was redundant, regardless of the fact that there was no reduction in the requirement for the number employees to carry out the work.

However, the present case was principally concerned with whether the claimant had been constructively dismissed, rather than the EAT considering in any detail the question of whether it could be interpreted as a redundancy situation.

In light of the apparent conflict between these two EAT decisions, an appeal to the Court of Appeal in either or both cases is desirable in order to clarify the position. In the meantime, employers should exercise caution in seeking to make any significant reduction in hours and be prepared for affected employees claiming a redundancy payment.

A copy of the EAT judgment is available here

Acas has issued new guidance for employers on managing redundancy for pregnant employees or those on maternity leave. Employment solicitor Sam Greenhalgh reports.

The new guidance, issued in conjunction with the Equality and Human Rights Commission, is a ‘good practice guide’ that is intended to dispel some of the myths that exist about making pregnant employees (or those absent on maternity leave) redundant.

This can be a tricky area for employers to negotiate their way through. The guide makes it clear that provided a fair procedure is followed, with appropriate criteria for selection and proper consultation carried out (adapted if necessary to take account of an employee’s absence), it is possible to carry out a fair redundancy process for those who are pregnant or on maternity leave.

The guidance highlights some of the necessary considerations to take into account in relation to pregnant employees and those on maternity leave, including the requirement to offer such employees any suitable alternative employment that may be available, in preference to other employees.

A copy of the new guidance is available here

The Court of Appeal has handed down its judgment in the case of NHS Leeds v Larner, dealing with the issue of carrying forward accrued holiday entitlement during sick leave. Professional Support lawyer, Elizabeth Stevens, reports.

In this case, the Employment Appeal Tribunal (EAT) had ruled that an employee who was dismissed after a long period of sickness absence was entitled to be paid in lieu of all her accrued holiday. The EAT was satisfied that she was entitled to be paid in lieu of the full amount, including in respect of the previous holiday year, even though she had not made any request to carry the leave forward (see our previous briefing).

Following this decision, the case of Fraser v Southwest London St George’s Mental Health Trust was heard by a different division of the EAT, which concluded that in order to be entitled to carry the leave forward to a subsequent holiday year, the employee must expressly request to take the leave (see our previous briefing).

As a consequence of these two EAT decisions we had conflicting authorities on the issue. The case of NHS Leeds v Larner was then appealed to the Court of Appeal and was heard on 27 March 2012. The decisions was handed down on 25 July 2012.

The Court of Appeal has upheld the EAT decision, meaning that a worker who has been on long-term sick leave can claim a payment in lieu of his or her accrued holiday entitlement in full, regardless of whether they made any request either to take the leave or to carry the leave forward to the next holiday year.

In handing down its judgment, the Court reviewed the numerous European decisions on the issue of statutory holiday entitlement during sickness absence under the provisions of the Working Time Directive (WTD). The Court was satisfied that Article 7 of the WTD, which provides the right to paid annual leave, does not impose any requirement for the worker to make a prior leave request in order for the holiday entitlement to be carried forward to a subsequent holiday year.

Crucially for private sector employers, the Court also ruled that it was possible for the Working Time Regulations 1998 to be interpreted in light of the European rulings on Article 7 WTD. This means that employees working in the private sector, as well as those in the public sector, can rely on these European decisions to pursue a claim for any unpaid holiday entitlement on termination of their employment.

Comment This decision means that, subject to any further appeal to the Supreme Court, employers will now have very little scope for refusing to pay employees in respect of their accrued holiday, if their employment is terminated following a long period of illness.

The Government is due to be issuing draft amendments to the current Working Time Regulations in order to take account of the European decisions on the issue of annual leave entitlement and sickness absence.

A copy of the Court of Appeal judgment is available here

From 6 April 2013, a new statutory test will replace the existing rules fordetermining if you are UK resident. While the test will provide clarity, it isimportant to understand it now so that you can plan ahead.

Take a look at our detailed flyer, which includes the test to see if it will affect you.

The firm’s Franchising Team recently enjoyed an evening’s sail on White Moth, a Norfolk Wherry Yacht. Wherries were originally trading vessels which used to sail the Norfolk Broads. Subsequently, some were developed to carry passengers and the Wherry Yachts were built as pleasure yachts early in the last century.

Jonathan Chadd, partner in the Franchising and Intellectual Property Team, advised on the purchase of White Moth by Andrew Scull. Mr Scull generously loans White Moth to the Wherry Yacht Charter Charitable Trust (WYCCT) so that she can be enjoyed by others. At the kind invitation of owner Andrew Scull and under the steady hand of skipper Peter Bower and his dog Sam the Team enjoyed a marvellous sail in perfect weather out from the Trust’s base in Wroxham and on to Wroxham Broad. Leathes Prior is proud to support the restoration and preservation work carried out to White Moth and other Norfolk Wherries. For more information about the WYCCT including the work it carries out and details of the yachts available for private charter, please visit: www.wherryyachtcharter.org

The Franchising team works closely with other departments within the firm to be one of very few firms which is able to offer the full complement of legal services to its franchising clients. 9 members of the firm, including members of the employment, commercial property, intellectual property, debt collection and dispute resolution teams accompanied the Franchising team on the trip. Jonathan Chadd thanked colleagues for their continual support of the Franchising team:

“The Franchise Team just wanted to thank all of you for your assistance to us and hope you enjoyed it.” Vicki Mitman, added: “It is great to have the assistance of other specialist teams within the firm as they ensure we are able to offer a comprehensive and competitive service.”

Lee is a FA and FIFA Licensed Football Agent, and joins Leathes Prior to work in Dan Chapman’s Sports Team, which trades under the style Full Contact (see www.fullcontactlaw.co.uk).

Lee will head up Full Contact’s player representation and agency division, acting for football players throughout the UK, Europe and beyond.

Lee brings vast experience as both a professional footballer and an agent and he will work closely with his legal, commercial and mentoring colleagues within Full Contact and Leathes Prior to allow us to offer players a service which truly is second to none.

Lee, whose background is steeped in football (his father was a football manager), decided to become a football agent once his playing career ending prematurely due to injury, and over many years he successfully built up an impressive roster of clients.

Adam Blenkinsop and Katy Kidd report on Lambeth Council’s recent success in obtaining injunctions against unlicensed ice cream traders in London’s South Bank, and outline the legal framework for local authorities bringing such actions.

Click here to view the article in full published by Local Government Lawyer.

Steeles Law Associate Jean Parkinson and Trainee Solicitor Laura Tanguay discuss the new Private Member’s Bill on littering.

A new Private Member’s Bill on roadside littering was heard in the House of Lords last week. The aim of the Bill is to ‘close the loophole’ in the existing provisions and enable councils to hold someone accountable when litter is thrown from a vehicle.

At present, it is a criminal offence under sections 87 and 88 of the Environmental Protection Act (EPA) 1990 (as amended by the Clean Neighbourhoods and Environment Act (CNEA) 2005 which includes within the definition of ‘litter’ smoking related litter and chewing gum) to throw litter from a vehicle. Those found guilty of the offence can receive an £80 fixed penalty fine from the council, or a maximum fine of £2,500 for more serious offences tried in the Magistrates Court.

There is, however, a serious evidential difficultly in proving which particular person in the car was responsible for throwing the litter, and consequently, these provisions are rather ineffective in practice.

Because of this, the London Local Authorities Act 2012 was enacted this year to enable councils in Greater London to issue civil penalties for littering to the registered owner of the vehicle, thereby removing the evidential burden of the existing criminal provisions. The penalties operate in the same way that speeding fines, seat belt, and parking offences do, with the owner of the vehicle automatically liable but able to nominate the guilty individual to bear the penalty.

The proposed new Bill seeks to extend this civil penalty to local authorities across England, allowing those councils outside of London to benefit from the provisions, thereby removing the current anomaly and rounding the legislative circle.

The new Bill has the support of CPRE (Campaign to Protect Rural England), with CPRE Stop the Drop Campaign Manager, Samantha Harding, stating, “if people think they can toss litter from their cars, councils should have an effective way to fine them and that’s what this bill delivers.”

Clearly, littering is of widespread concern, not only because of the associated harm to our countryside and wildlife, but also because of the huge cost implications to Local Authorities in removing the rubbish from our streets. Green Flag reports that the cost to taxpayers of clearing up litter on the roadside is £850 million a year. Similarly, Keep Britain Tidy estimates that over 30 million tonnes of litter are collected from our streets every year at a cost of £885 million per year.

For further information on this topic, please contact Jean Parkinson on 020 7421 1720 or [email protected].

The Employment Appeal Tribunal (EAT) has recently considered whether it was fair to dismiss two employees for taking preliminary steps towards setting up in competition with their employer. Employment Principal Lorna Townsend reports.

Following hot on the heels from the decision of the Court of Appeal in Ranson v Customer Systems plc (see our previous briefing), in which an employee who set up in business with his employer was held not to be in breach of his contract of employment, the EAT has considered the dismissal of two employees who had taken preliminary steps towards setting up in competition with their employer.

The two employees in this case, K and H, had put together a detailed business plan for the purpose of seeking investment in their own company, which would be competing with their employer’s business of operating residential care homes for children.

Both employees were suspended and then dismissed for gross misconduct following separate disciplinary hearings. The misconduct was described as a breach of the “fundamental trust and confidence” essential to the employment relationship. The employer relied in particular on the fact that K and H had used company resources, including information on costings, in the preparation of their business plan.

The employees’ claims for unfair dismissal were rejected by the employment tribunal, which concluded that dismissal was within the range of reasonable responses open to the employer, following a reasonable investigation.

The EAT upheld the employees’ appeal and remitted the case to be reheard by the tribunal. The EAT was not satisfied that the information used by the claimants in the preparation of their business plan could necessarily be categorised as ‘confidential information’, the unauthorised use of which would amount to a fundamental breach of contract. The tribunal had not fully considered the question of whether the employees were acting in breach of their contract of employment by using company information in the preparation of their business plan.

Comment

The EAT in this case has provided a useful reminder that whilst employers have a considerable freedom to define what they will treat as gross misconduct, it is not in itself gross misconduct for an employee to make preparations for conducting a future business after his employment with his current employer has terminated. It is likewise not necessarily the case that every piece of information the employer has, and that the employee may be aware of, can properly be regarded as ‘confidential information’ within the strict legal meaning of the term.

Employers should exercise caution before terminating an employee’s employment in this situation. It would be prudent for employers to make sure that employment contracts and policies make the employee’s duty of confidentiality, and the consequences of breaching that duty, very clear.

A copy of the EAT judgment is available here

Steeles Law Head of Planning & Environment David Merson previously reported on Coalition proposals to revise the planning system and in particular proposals to amend the Use Classes Order. He now looks at Communities Secretary Eric Pickles’ announcement today highlighting the proposals to remove restrictions on temporary use of empty high street shops.

Temporary or so called ‘pop-up’ shops often use empty high street shop premises until a permanent tenant can be found.

The time and cost associated with securing the necessary consent required to comply with any planning rules controlling what type of business a shop can be used for can often make the difference between the venture ever getting off the ground or not. In addition, empty high street shops give rise to many problems: lost revenues, blight, economic stagnation and anti-social behavior.

It is now proposed that Landlords would be free to temporarily change the use of an empty shop for two years where the use would be low impact which the Coalition believes can help reinvigorate the high street. Appropriate temporary uses changes are though likely to be within use classes A1 (e.g. retail shops, hairdressers, post offices), A2 (e.g. banks, betting shops, employment agencies), A3 (e.g. restaurants and cafes) and B1 (offices).

Details of the consultation exercise can be found here. The consultation period runs for ten weeks from the date of publication on 3 July 2012 and end on 11 September 2012.

If you require further information or advice on any issues raised in this article or any other planning & environmental matter please contact David Merson on 020 7421 1720 or [email protected]