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Employment Law Update Welcome to Novembers edition of our monthly employment law update from the HR Division of Lander Associates. We hope you found last months update useful. For our new readers Paul Marsh, our Head of HR, will be sharing updates, case studies and more with you each month.

November 2011

Chancellor’s announcement on unfair dismissal and tribunal fees The Chancellor, George Osborne, announced in his speech at the Conservative Party conference that the unfair dismissal qualifying period will rise from one to two years and that fees will be introduced in the employment tribunals. Further details emerged in a BIS press release, which confirmed that the unfair dismissal change will come into effect on 6 April 2012, although there is no mention yet of any transitional provisions for existing employees. There is no further official announcement on tribunal fees, although predictions are emerging in the press.

Nick Clegg advocates “protected conversations” Nick Clegg has suggested that businesses should be free to have frank discussions with staff about their performance and future retirement without fear of employment tribunal proceedings. It is reported that the Minister for Employment Relations, Consumer and Postal Affairs, Ed Davey is currently drawing up proposals under which such "protected conversations" would not be able to be used by employees in future litigation.

Giving a reference when there are outstanding allegations Employers are under no duty to provide their employees or former employees with a reference in most cases. However, if they do provide one, they owe a duty of care to the individual when preparing it, and may be sued for damages in negligence if they breach that duty. As a result of case law, the reference needs to be true, accurate and fair. Fairness, in this context, means that it should not be misleading overall. In Jackson v Liverpool City Council, The Court of Appeal held that Liverpool could not be criticised for providing a reference which referred to allegations against Mr Jackson as it had made it clear that the allegations had not been investigated. This meant that the reference was both true and accurate, and the Court of Appeal could not see how Liverpool could have honestly answered the questions in the reference without referring to the allegations.

No such thing as "self-dismissal" In Zulhayir v JJ Food Service Ltd, Mr Zulhayir started employment with JJ Food Service Limited (JJ) on 1 November 2001. He had an accident while at work in January 2005 and went on sick leave. Mr Zulhayir provided sick notes until 25 June 2006, after which JJ wrote to him by letter dated 28 June 2006 claiming that they had tried to contact him, but were unsuccessful, and asking him to confirm whether he still wanted to work for JJ. If he did not provide that confirmation by 5 July 2006, the letter stated that his employment would be terminated "by [his] own volition". The letter was returned unopened to JJ, which made no further attempt to contact Mr Zulhayir. In fact, Mr Zulhayir had moved in January 2006, but had not informed JJ of his new address. On 20 May 2009, a copy of JJ's letter dated 28 June 2006 to Mr Zulhayir at his new address. This was the first time that he had seen this letter. On 28 July 2009, Mr Zulhayir lodged his unfair dismissal claim.

It was ruled that JJ's letter of 28 June 2006 could not be considered to be an acceptance of Mr Zulhayir’s resignation. The result was that no effective steps had been taken by either party to terminate the employment contract until the letter from Kennedys dated 20 May 2009 reached Mr Zulhayir. That was the first time that Mr Zulhayir learned that JJ no longer wished to be bound by his employment contract. He then accepted that state of affairs by commencing a tribunal claim against JJ.

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Employment Law update Only a variation in contracts where a transfer is the sole or principal reason will breach TUPE regulations When employees’ contracts are varied after a company has been transferred the question is not whether their conditions would have been the same “but for” the transfer, but whether the transfer itself was the sole or principal reason for the change.

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In this case, the claimants worked fewer hours per week than full time colleagues but were paid at the full time rate. After the company was TUPE transferred, their new employer decided that the claimants had been overpaid in error and reduced their pay. The claimants agreed to their pay being changed to reflect that they worked part time but then brought claims in the Employment Tribunal claiming the variations in their contract were void because the reason for the variations was the relevant TUPE transfer. The Tribunal found that the TUPE transfer was not the principal reason for the variation. Whether a variation of terms and conditions was by reason of the transfer is a question of fact and tribunals will look for the actual reason for the change and what caused the employer to make the change.

Employees allowed to carry over holiday accrued during sickness absences to following leave year. Adams and another V Harwich International Port Ltd confirms again that those who cannot take their holiday in one year because of sickness is entitled to carry it over to the following holiday year. This follows a European Court of justice ruling even though it is against the provisions in our current Working Time Regulations.

Should interns be paid the National Minimum Wage? Revised guidelines on the payment of NMW to interns and volunteers have been issued by the Department for Business Innovation and Skills. The Government is currently encouraging organisations to pay interns whether they qualify under the NMW Act or not. HMRC is said to be considering enforcement in sectors where internships are commonplace. Organisations who offer unpaid internships should take note of the guidelines. More info can be found at businesslink.gov.uk.

Question of the month: Can we request a letter from an employee stating dates and times they had off for medical treatment. Can we also call the surgery to verify appointments with the doctor? You can require proof of the appointments if you feel you need it. However, be careful as this may indicate a lack of trust on your part and could be a breach of the implied duty of trust and confidence and contribute to a constructive dismissal claim. If you have grounds to believe they are being untruthful then you could make your enquiries as part of a disciplinary investigation. Strict rules apply in respect of contacting doctors and there will also be data protection issues, which in reality means that you are unlikely to get much information from the doctor. This employment update is provided for general information only and should not be applied to specific circumstances without advice.

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Employment Law update - Nov 2011