Conscious Solutions - Employment and HR http://www.conscious.co.uk/ Conscious Solutions - Employment and HR Conscious Solutions Ltd service@conscious.co.uk Sifted/2.0 1440 www.conscious.co.uk http://www.conscious.co.uk/global/images/icons/conscious_eye_26x30.jpg Conscious Solutions Get Ready for New Construction Industry Scheme http://www.conscious.co.uk/site/library/legalnews/get_ready_for_new_CIS_scheme.html The new Construction Industry Scheme (CIS) for contractors employing subcontractors in the construction industry is due to come into effect on 6 April 2007. Under the new scheme, it will be necessary for contractors to obtain confirmation from HM Revenue and Customs as to whether a subcontractor is to be paid gross or after deduction of basic-rate tax. This will need to be done before the first payment is made. Subcontractors who are paid after deduction of tax will have to be given a statement showing the tax deducted and the net amount paid. The new scheme will require the submission of a declaration by the contractor, which will accompany the monthly return, that none of the subcontractors has been employed under a contract of employment.
 
If you are in any doubt about the status of a subcontractor, first look at the HM Revenue and Customs employment status  tool, which may assist in deciding the correct employment status.
 
For further information on the operation of the new CIS, see the HMRC website.
 
    
]]> Tue, 28 Aug 2007 15:40:23 GMT Collective Redundancies - Failure to Consult http://www.conscious.co.uk/site/library/legalnews/collective_redundancies_failure_to_consult.html
This decision is in line with that of the European Court of Justice (ECJ) in Junk v Wolfgang Kühnel that consultation of the required duration must take place before any employees are given redundancy notices. The ECJ ruled that consultation could not be meaningful, with a view to reaching an agreement, if the decision to dismiss employees had already been taken, effectively compromising the consultation process.

Leicestershire County Council had been undertaking a major staff evaluation programme in order to implement the national Single Status Agreement. By June 2002, most jobs had been evaluated but completing the process would involve renegotiating the terms and conditions of two groups of workers. The formal political decision to dismiss and re-engage these members of staff was taken on 12 December 2002. However, by this time the bulk of the work necessary to carry this out had already been done. Proposals to issue dismissal notices in January 2003 had been discussed at departmental level in mid-November 2002. On 20 December 2002, a consultation notice was sent to the UNISON branch secretary with a covering letter which merely invited her to ‘discuss the notice’.

UNISON claimed that the Council had failed to consult with them ‘in good time’ regarding the redundancies, and the claim was upheld by the ET. The union also applied for a protective award for both groups of workers. The ET followed principles for assessing the length of a protective award as set out in the case of Susie Radin v GMB, which confirmed that the duty to consult is an absolute obligation and that the consultation must be meaningful and undertaken with a view to reaching an agreement, not as an end in itself. The ET made an award of 90 days’ pay for the first group of workers and 20 days’ pay for the second group. The award was less in the latter case because the trade union had failed to respond to the Council’s invitation to consult.

The EAT judged that it could not interfere with the ET’s finding that not just a proposal but a decision to terminate the existing contracts of employment had been made in mid-November 2002. Following the judgment in Junk v Kühnel, the purpose of the legislation on consultation and redundancy is to avoid, or reduce the number of, terminations of contracts of employment. The achievement of that purpose would be put at risk if the consultation of workers’ representatives were to take place after the employer’s decision had been made.

Furthermore, the EAT held that it does not automatically follow that where the employer has partially complied with the requirement to provide information there should be a reduction in the protective award. The duty to provide information and the duty to consult are separate. The EAT therefore upheld the award of 90 days’ pay for the first group of workers. With regard to the second group, the EAT reduced the protective award to 10 days’ pay on the grounds that the Council’s attempts to negotiate with this group, after the decision to dismiss was ratified, were genuine albeit late and this was a mitigating factor.

The Department of Trade and Industry has issued new guidance giving information on the statutory redundancy consultation and notification provisions contained in TULRCA and explaining how these obligations fit in with new duties under the Information and Consultation of Employees Regulations 2004.


]]> Tue, 17 Jul 2007 09:16:27 GMT Pleural Plaques - No Fault Proposals http://www.conscious.co.uk/site/library/legalnews/pleural_plaques_no_fault_proposals.html Pleural plaques are small, localised areas of pleural thickening on the membrane covering the lungs, caused by the inhalation of asbestos fibres. Pleural plaques are in themselves benign but their presence is associated with an increased risk of developing asbestos-related conditions such as mesothelioma. At one time, it was possible to claim damages for negligent exposure to asbestos in the workplace which resulted in the presence of pleural plaques.

In October 2007, however, the House of Lords ruled (Johnston v NEI International Combustion Ltd.) that ‘the existence of pleural plaques does not constitute actionable or compensatable damage’. This essentially means that people diagnosed with the condition are no longer entitled to claim damages.

In response to this judgment, the Ministry of Justice has published a consultation paper which examines the law and the medical evidence underpinning the Lords’ decision and considers the possibility of changing the law of negligence to allow compensation to be claimed by those diagnosed with pleural plaques, effectively overturning the judgment.

The consultation also invites views on the merits of establishing a ‘no fault’ payment scheme for individuals who have been diagnosed with pleural plaques through exposure to asbestos at work. Two possible approaches are put forward for consideration, which are:

to establish a ‘no fault’ payment scheme limited to those with work related exposure to asbestos and diagnosed with pleural plaques within a fixed period prior to the House of Lords judgment who had not already received compensation; or

to establish a ‘no fault’ payment scheme for all those similarly exposed and diagnosed now or in the future.

A no fault scheme would provide a payment to any qualifying person exposed to asbestos in the workplace and diagnosed with pleural plaques, without any requirement on the part of the applicant to prove negligence on the part of an employer. The paper considers:

  • whether any payment should be made and, if so, by whom;
  • the amount of the payment; and
  • the risks, benefits and costs of both schemes.
]]> Thu, 18 Dec 2008 15:45:40 GMT Alcoholic Bonus Not Discriminatory http://www.conscious.co.uk/site/library/legalnews/alcoholic_bonus_not_discriminatory.html
Discrimination on religious grounds can sometimes amount to unlawful indirect race discrimination, contrary to the Race Relations Act 1976, if a requirement or condition is imposed at work with which members of a racial group are less likely to be able to comply or where the requirement or condition is not justifiable on non-race related grounds or is to the detriment of the person concerned because he or she cannot comply with it.

In a recent case, a Muslim insurance salesman who took offence when his employer offered alcohol as a performance incentive has lost his claim for religious and race discrimination at the Employment Tribunal (ET).

25-year-old Mr Imran Khan, of Bristol, worked for Direct Line Insurance and was one of 14 people in the city awarded the bonus for sales of pet and household insurance policies. Mr Khan claimed that offering bottles of wine as a reward put him at a disadvantage compared with his colleagues as his religion strictly forbids the consumption of alcohol. He claimed damages for hurt feelings under the Employment Equality (Religion or Belief) Regulations and also accused his employer of indirect racial discrimination because he is of Pakistani origin and therefore more likely to be a Muslim. Mr Khan argued that no alternative incentive award was offered.

The ET judged that a teetotal non-Muslim would have been in exactly the same position as Mr Khan as regards the bonus award and that he had failed to show that he had received less favourable treatment than would have been afforded to such a comparator. The ET also heard that a Muslim colleague had exchanged his wine for gift vouchers.

ACAS has useful guidance on this subject, entitled ‘Religion or Belief and the Workplace’. One key point is to make sure that you understand any requirements of the religion or belief of individual members of staff. The guidance can be found here.
]]> Tue, 17 Jul 2007 09:14:53 GMT Holiday Leave Entitlement to be Increased http://www.conscious.co.uk/site/library/legalnews/holiday_leave_entitlement_increase.html The Government has published the Working Time (Amendment) Regulations 2007, which will increase the minimum annual holiday entitlement from 20 days a year to 28 days. This will be accomplished in two stages, being increased to 24 days from October 2007 and to 28 days from April 2009, not October 2008 as was originally planned.

As a transitional measure, payment in lieu of the additional holiday entitlement (the additional 8 days) will be allowed to continue until 1 April 2009. This is a temporary measure intended to help employers to implement the new arrangements.

In order to provide an incentive for early compliance with the Regulations, employers that already meet the full requirements of the Regulations as at 1 October 2007 (giving the equivalent of 28 days’ holiday, without payment in lieu and where any carryover of leave is only to the following year) will be regarded as being outside of the Regulations, as long as they continue to meet those requirements.

It is estimated that the measure will benefit up 3.5 million women and 2.5 million men. Part-time workers will be entitled to the extra holidays pro-rata.

]]> Fri, 18 Jan 2008 17:43:20 GMT Increases in Holiday Entitlement http://www.conscious.co.uk/site/library/legalnews/increases_in_holiday_pay.html
In May 2006, the Government confirmed its intention to introduce measures to provide that bank and public holidays are not included in the statutory entitlement to four weeks’ paid holiday per year, under the Working Time Regulations 1998.
 
There are eight permanent bank and public holidays in Great Britain and the Government wishes to counteract the current anomaly whereby it is generally lower paid workers who have these days included in their annual holiday entitlement.
 
Instead of giving workers a legal entitlement to time off on bank and public holidays, the intention now is to introduce legislation to increase the current statutory minimum holiday entitlement for full-time workers from 20 to 28 days.
 
It is proposed that statutory annual leave entitlement should be increased in two stages, rising from 20 to 24 days on 1 October 2007, and from 24 to 28 days on 1 October 2008.
 
The DTI estimates that up to six million workers will benefit from the changes, with women, part-time workers, low-paid workers and workers from minority and ethnic communities most likely to benefit.
 
Further information can be found on the DTI website.  
 
]]> Sun, 02 Dec 2007 18:01:12 GMT The Worker Registration Scheme http://www.conscious.co.uk/site/library/legalnews/the_worker_registration_scheme.html
Workers from these eight new member states are generally required to apply to the Home Office for a registration certificate, authorising them to work for that employer, within one month of starting work. Applications for registration are the responsibility of the individual worker and a registration fee of £70 is payable. Employers should, however, ensure that the individual is provided with a letter on company paper confirming the date on which they started working as the worker will need this when applying for registration. The employer should keep a copy of the worker’s completed application form, as evidence that the request for registration has been made within one month of that person starting work for them, and retain a copy of the valid Worker Registration Certificate.

It is a criminal offence, with a maximum fine of £5,000, to continue to employ a worker from one these eight countries without the necessary registration certificate.

In April 2006, the Government confirmed that it will continue to operate the Worker Registration Scheme after 1 May 2006 in order to monitor the numbers of nationals from the new member states coming to work in the UK and their impact on the labour market.

]]> Fri, 08 Jun 2006 23:00:00 GMT