We were absolutely delighted to be awarded ‘Best Start Up’ at our local business awards on 30 March. The category was for businesses which have shown “determination, drive and passion to start and grow a successful business.”  

Since our launch in May 2010 we have gone from strength to strength. Our approach is to provide pragmatic, clear and commercial advice in plain English. As we approach our second anniversary it is great to be recognised for the work we have all put in to ensure that Pure Employment Law delivers the best service to our clients.  

Peter and Anna attended the glitzy awards ceremony and were presented with the award by Simon Webber from Spofforths, who had sponsored the Start Up category.  

We send our thanks to the hosts and sponsors of the awards, as well as to all of our clients and contacts who have supported us along the way. Our award now takes pride of place in the office!  

Peter, Nicola and Anna with our award

Our Award

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team 01243 836840 or enquiries@pureemploymentlaw.co.uk.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

The increase in the qualification period was not the only change.  Employees who started after 6 April 2012 will now need two years’ service in order to be entitled to be given written reasons for their dismissal, except when the reason was pregnancy related.

Other changes include changes to the Employment Tribunal process, most notably employment judges sitting alone in most unfair dismissal cases, and witness statements being taken as read rather than being read out to the Tribunal by the witness.

Away from the dismissal and Tribunal arena, the rate for Statutory Maternity, Paternity and Adoption Pay increased from £128.73 per week to £135.45 per week, and the rate for Statutory Sick Pay from £81.60 to £85.85 per week.

The law on apprentices changed this month too – if you use apprentices in your business then have a look at our article here.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team 01243 836840 or enquiries@pureemploymentlaw.co.uk.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Our advice has always been that you don’t have to answer at all, but if you don’t say anything then the person may come to their own conclusions, which might mean that they believe they have been discriminated against. Of course, giving feedback can never remove this risk altogether, but having some form of explanation may make the candidate less likely to take the matter further.

This position has been confirmed in the recent European case of Meister v Speech Design Carrier Systems GmbH. Ms Meister applied for a job as a software developer with Speech Design on two occasions but was unsuccessful on both without interview, despite being well qualified for the position. She brought a claim for discrimination, but had no evidence to support it.

The European Court of Justice (ECJ) was asked to consider whether an unsuccessful job applicant had a right to disclosure about the recruitment process, for example who the successful candidate was, and what the criteria for selection were.

The ECJ decided that an unsuccessful candidate did not have a right to have access to information about the recruitment process. However, crucially, they went on to say that the national courts may take into account any refusal to provide information when deciding whether or not discrimination could be inferred from the facts.

In the UK, a job applicant in Ms Meister’s situation may well have chosen to use a statutory discrimination questionnaire in order to try and get information from the company so as to decide whether or not to bring a claim.

Questionnaires are extremely useful to prospective Claimants in such situations because the questions and answers are admissible in evidence at an Employment Tribunal. In addition, the Equality Act 2010 provides that an Employment Tribunal may draw an inference from an employer’s failure to respond within eight weeks, or from evasive or equivocal answers. It is therefore in the Respondent’s interests to provide a full and accurate response so as (hopefully) to demonstrate that no unlawful discrimination took place. The responses to the questionnaire can prove vital in defending Tribunal claims, so it is very important to take legal advice on these at an early stage.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team 01243 836840 or enquiries@pureemploymentlaw.co.uk.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

As you may recall, the Apprenticeships, Skills, Children and Learning Act 2009 states that an apprenticeship agreement entered into under the Act has the status of a contract of service and not a contract of apprenticeship. In order to be an apprenticeship agreement under the Act, it must be “in the prescribed form.” We had been waiting to find out what the prescribed form would be.

Finally, the Apprenticeships (Form of Apprenticeship Agreement) Regulations 2012 have come into force (on 6 April 2012) but instead of prescribing a form, they have simply stated that apprenticeship agreements entered into under the Act must contain the basic terms of employment required to be given to employees under section 1 of the Employment Rights Act 1996. This can be in the form of a written statement of particulars of employment, a written contract of employment or a letter of engagement. The agreement is also required to include a statement of the skill, trade or occupation for which the apprentice is being trained under the relevant apprenticeship framework.

There are separate rules for apprentices of the Crown or House of Commons and for the armed forces. 

So what does this change mean? Well, it isn’t clear yet whether the Regulations have retrospective effect, or whether they only apply to agreements entered into after 6 April 2012. From that date, if you have an agreement with an apprentice that is in the prescribed form, then that person now works under a contract of service and therefore their contract can be terminated on notice (unlike a traditional apprenticeship).

However, some commentators have pointed out that there is potential for confusion in relation to the National Minimum Wage (NMW). This states that the apprentice rate should be paid to those on a contract of apprenticeship – but if an employer has used the ‘prescribed form’ then the apprentice won’t be on a contract of apprenticeship, they will actually be on a contract of service. We expect that this is likely to be interpreted so that apprentices can still be on the apprentice NMW rate even if they are on a contract of service, but this might be something which gets challenged in future.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team 01243 836840 or enquiries@pureemploymentlaw.co.uk.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

The following frequently asked questions identify some of the major questions around employee monitoring:

1.       Can I record calls that employees have with customers for quality purposes?

Monitoring calls for quality purposes is likely to be a reasonable approach for employer businesses in the sales and customer service industry. Data collected may be useful evidence in case of a complaint from a customer, or for training purposes. Both callers and employees should be told right at the start of a call, either by an automated message or by the person who answers, that the call will be monitored. If applicable, employees must also be made aware that these conversations may be archived and that data must be kept securely. This type of monitoring is reasonable and justifiable and, as long as it is conducted openly, will not fall foul of relevant legislation or guidance.

2.       I wish to monitor the use of email and internet by my employees as I suspect some employees are using the internet excessively for personal purposes when they should be working.

Before considering the issues around monitoring here, employers should first ensure that the standards of conduct expected of their employees in terms of use of email and the internet are set out clearly in a policy. For example, if personal internet use is permitted at work, employers should indicate for how long and at what times this will be permitted. The policy can also cover rules about the use of email and the internet and inform that disciplinary action may be taken in cases of misuse. An example of misuse is an employee using company emails to sexually harass a colleague. Employers can be vicariously liable for such actions and therefore showing that the rules forbid this type of behaviour may assist in a possible defence.

In regard to monitoring of emails, an employer needs to inform employees if they are planning to monitor emails, tell employees when and why it is being carried out and who will have access to the emails. The monitoring will need to justified and proportionate. An impact assessment should be carried out to ensure this is the case. If an employer needs to monitor the emails of an employee whilst they are away on leave, for business purposes, then the employer should ensure the employee is aware this will happen.

In regard to the monitoring of internet usage, the same principles apply as above, with the onus being on an employer to ensure employees are aware that their internet history may be monitored. However, it is also perfectly acceptable to ensure certain sites are blocked by a firewall. This could assist with cutting down on employees excessively accessing sites such as Facebook, Twitter etc whilst they should be working.

3.       I run a small business and I wish to place CCTV on the workplace premises. Is this OK?

The initial question here is to ask what the motivation is for placing CCTV on the workplace premises and to what extent that will result in recording of employees and others. Employers are permitted to monitor the workplace in so far as this is necessary and proportionate. If the CCTV is for security of the outside of the premises and therefore will only result in employees being filmed entering and leaving the premises; this will be considered as reasonable. It may also be reasonable to use CCTV to monitor areas where cash is routinely handled (e.g. tills). It will be necessary to conduct an impact assessment and most importantly, inform employees that CCTV is being put in place in certain areas and let them know that their activities will be filmed. There should also be signs on the premises to make visitors aware that CCTV is in operation. It will also be necessary to ensure that data collected by CCTV is handled in accordance with data protection principles and kept secure and accessible to only those who need access.

CCTV monitoring that goes further than this, such as routine monitoring of employees to check whether they are adhering to their employment contracts is unlikely to be justifiable and other less intrusive means of monitoring should be considered. Privacy should also be respected in areas where employees will have a reasonable expectation of privacy e.g. toilets, changing rooms etc.

4.       I suspect that an employee is drug-dealing in the workplace. What monitoring am I able to put in place to determine if this is happening?

In these circumstances, it is possible to put in place secret monitoring (such as video surveillance or audio monitoring) because there is a potentially serious crime involved. The suspicion should be reasonably held and any covert monitoring must only be in place for the time period necessary. In such circumstances, employers cannot inform employees that they will be monitored as this may prejudice the investigation. As for question 3, it is necessary to ensure that the monitoring is proportionate and justifiable. It is therefore important that an assessment is undertaken by an employer to ensure this is the case.

Even where the above conditions for covert monitoring are satisfied, employers must not monitor employees in locations where employees have a reasonable expectation of privacy, as stated above. If an employer feels that monitoring employees in such locations is justified, then it may be a good idea to involve the police.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team 01243 836840 or enquiries@pureemploymentlaw.co.uk.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

In this case the company was undergoing a restructure.  As a result, a number of roles, including that held by Mr Monte-D’Cruz, were made redundant.  As part of the restructure the company had created a number of new roles and Mr Monte-D’Cruz and a colleague were invited to apply for them.  At the interview they were assessed against a number of competencies and in order to be considered for appointment to the role they had to score a minimum of 75 points.  Neither Mr Monte-D’Cruz nor his colleague achieved this, and the company appointed an external candidate.

Mr Monte-D’Cruz claimed unfair dismissal and won on the Employment Tribunal.  However, the EAT overturned this.  They held that when an employer was interviewing for a vacancy, as opposed to selecting for redundancy, it was entitled to use subjective criteria.  They expressly stated that interviewing would inevitably include an element of judgement by the employer.

As part of a fair redundancy process, employers have always had to look to see whether there are any suitable alternative vacancies for an employee at risk of redundancy.  In this case the EAT have probably made it a bit easier for an employer to reject someone at risk of redundancy for an alternative role on the grounds of their ability, rather than their qualifications and experience.  However, if an employer does go down this route it will be risky, especially if there is only one vacancy and one employee at risk of redundancy.  In this particular case there were two people at risk of redundancy who applied for the new role, and the employer was therefore bound to have had some form of selection exercise.

As always, these sorts of cases are very fact specific, and we recommend you always seek advice in handling redundancy situations, particularly where you are thinking of appointing an external candidate in preference to an internal one.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team 01243 836840 or enquiries@pureemploymentlaw.co.uk.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

• the transfer itself; or
• a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce (called an ETO reason).

If the dismissal is for a transfer-related reason but the employer establishes an ETO reason, then the dismissal is potentially fair for redundancy or some other substantial reason (SOSR) provided the employer acted reasonably in relying on that reason to make the dismissal.

In the case of Meter U Ltd v Hardy & Others the Employment Appeal Tribunal (EAT) considered claims that had been brought for transfer-related dismissals. The case involved individuals who had been employed as meter readers by Scottish Power but were transferred to Meter U Ltd when Scottish Power lost the contract for meter reading. However, Meter U Ltd operated in a different way and did not employ meter readers. Instead they operated through franchises with independent limited companies (which were typically owned by individual meter readers). At the stage of the transfer, Meter U Ltd consulted with the meter readers and offered them the opportunity of forming franchise companies. Most of them refused and were made redundant. Some brought claims in the employment tribunals for automatic unfair dismissal for a transfer-related reason. The case was decided in their favour, but Meter U Ltd appealed this decision to the EAT.

The original Employment Tribunal decision focused on the term “workforce” in TUPE. They decided that this included a wider class of persons than employees and incorporated everyone working in a business, including franchisees. The EAT disagreed with this and said that limited company franchisees were corporate bodies with a separate identity from their directors or controlling shareholders. Therefore, they were excluded from the term “workforce”.

As the franchises were excluded, there were changes in the workforce (i.e. a reduction in the number of employees) and an ETO reason was made out by Meter U Ltd. The dismissals were potentially fair on grounds of redundancy. The EAT remitted the cases back to the Employment Tribunals to decide whether the dismissals were fair.

The decision applies a common sense approach to transfers where TUPE applies, particularly those termed as “service provision changes” where services are transferred to another business following tendering. There may be advantages for service providers to set up franchise models to operate contracts where TUPE might be an issue, provided there is a genuine need for this type of model (i.e. it is not a sham) and it is beneficial to do so.

The team at Pure Employment Law are experts at dealing with knotty TUPE issues. If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team 01243 836840 or enquiries@pureemploymentlaw.co.uk.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

You may recall that we previously wrote about the Gisda Cyf v Barratt case where a dismissal letter had been delivered and signed for by someone else at her house, but was not read by the employee until several days later. In that case, dismissal was only effective once the employee herself read the letter.

In the recent case of Horwood v Lincolnshire County Council however, different rules applied when it was the employee who was terminating the contract. Here the employee wrote to her employer indicating that she was resigning with immediate effect. The Employment Appeal Tribunal found that her effective date of termination was the date on which the letter was opened and date-stamped at the employer’s office, and not when it reached the particular person to whom it was addressed.

The decision does appear to show an inconsistency between the position of an employer and an employee when it comes to issuing notice, and although the circumstances may seem unusual, it is something that employers would be wise to be aware of.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team 01243 836840 or enquiries@pureemploymentlaw.co.uk.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

As you probably know, you don’t have any legal obligations to offer sabbaticals or career breaks. Although they may be seen as a ‘perk’ and therefore something that businesses may be cutting back on at the moment, they can also be a useful alternative to redundancy, allowing employers to save costs for a specified time while they wait for business to pick up.

Essentially a career break is something which is agreed between the employer and the individual employee, and as with any contractual agreement it is always best to ensure the terms are clearly recorded in writing. Some large organisations have specific policies on career breaks, and some even offer part-pay during the break, but there is no legal requirement to do either of these things.

Presumably in your situation you are prepared to keep the employee’s job open for him so that he will return to his previous role at the end of the agreed sabbatical period – sometimes the contract of employment is referred to as having been ‘suspended’ during the break. If that is the case, then presumably you would honour his continuous service for the purposes of things like contractual benefits and any future redundancy payments. Also, you may need to specifically deal with what happens about benefits, bonus schemes and pay reviews  etc. while he is away, and you would want his duties to you in terms of fidelity and confidentiality to continue to apply. All of these points will need to be clearly documented in the agreement with him.

We would also recommend that you specifically state that the period will be without pay, and that any holiday accrued during the time off must be taken (without pay) during the career break period. This is because otherwise if he remains an employee he will continue to be entitled to leave under the Working Time Regulations, and it is unlikely you would want him to take this after the end of the sabbatical.

The documentation will need to carefully deal with what happens at the end of the career break, either what the employee has the right to come back to, or what happens if he or she doesn’t return. There are no rules on this so it depends on the individual arrangement.

We recommend that you provide the employee with a copy of your proposed agreement before finalising arrangements for the sabbatical, and ask him to confirm his acceptance of the terms in writing.

We have helped other clients with career break/sabbatical agreements so are happy to prepare these or discuss suitable terms with you – please do get in touch if we can help. Please contact any member of the Pure Employment Law team 01243 836840 or enquiries@pureemploymentlaw.co.uk.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Last year for the Royal Wedding Bank Holiday we were inundated with queries from employers and employees on what their rights and obligations were as far as the additional day was concerned (our article, which was featured in People Management magazine, can be viewed here).

The issue comes from the fact that employees often mistakenly believe they have a right to a day off on a bank holiday.

In England and Wales there is no automatic right for an employee to have the day off on a bank holiday – whether they can or not will depend on their contract of employment. In the same way, if employees do work on a bank holiday their pay for the day will depend on their contract, as there is no statutory right to overtime or time off in lieu.

The statutory minimum holiday entitlement under the Working Time Regulations 1998 has increased over the past few years and currently stands at 5.6 weeks a year. This equates to 20 days plus the usual eight annual bank holidays for most full-time employees, and employers should have adopted wording to reflect this in their written contracts of employment.

So what does this mean for the Diamond Jubilee? Well, the position may depend on the exact wording of a contract. If, for example, it says that the holiday entitlement is “23 days plus bank holidays” then the employer is likely to have to give the employee a day’s paid leave on 5 June.

If, however, it says “28 days including bank holidays” then there will be no extra entitlement. The wording will vary from organisation to organisation – last year we found there were some contracts of employment that actually listed the specific Bank Holidays, and obviously as this did not include the additional one, employers were not necessarily obliged to give it to staff (although many chose to do so anyway). Here the fact that the late May Bank Holiday is also being moved may create some additional confusion. The position may also depend on whether your organisation plans to be open on the Jubilee Bank Holidays – clearly organisations which need cover will not be able to let all staff have the day off.

Issues are particularly likely to occur where part-time employees have holiday entitlement rounded up to allow for their pro-rata bank holiday entitlement. As an example, full-time five-day week employees might get 20 days plus eight bank holidays at an organisation, while three-day week employees get the pro-rata equivalent – 14.8 days inclusive of their bank holiday entitlement. This is fairly common and it means that when a bank holiday falls on a day when part-timers would normally be at work, they have to use some of their rounded-up entitlement to take the time off. The problem is that because these arrangements include bank holidays, there will be no extra entitlement on 5 June, whereas full-time staff are generally more likely to have an arrangement where bank holidays are on top. Employers might find that part-time staff complain they are being treated less favourably, in which case the employer will have to consider offering more leave in order to avoid claims – while it is fairly unlikely that a claim would come from this issue on its own, it might be used in combination with other points. 

As always, the best advice for employers is to be prepared – check your contracts of employment and take advice as appropriate.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team 01243 836840 or enquiries@pureemploymentlaw.co.uk.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice.  The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.