Employment Matters Bite Size August 2010

Legislation

Agency Workers Regulations 2011
The Government has announced its intention to review and possibly amend the Agency Worker Regulations which are intended to come into force in October 2011. The regulations have been drafted to ensure that agency workers’ receive equal treatment in respect of basic working and employment conditions after 12 weeks in an assignment, but concerns have been raised they will create a fundamental shift in the relationship between the hirer, the agency and the worker.

 
The regulations intend to bring the UK into line with the European Directive on temporary agency work and while they were previously criticised by a Parliamentary committee as being unclear and open to interpretation, it is therefore unlikely that major changes will be possible.

A copy of the proposed regulations can be viewed at the Office of Public Sector Information website.

Cases

Caps on redundancy payment legitimate
The Employment Appeal Tribunal (EAT) has concluded that a cap on Kraft Foods’ ‘exceptionally generous’ contractual redundancy scheme was justified and did not in fact amount to unlawful indirect age discrimination.

The claimant was made redundant aged 62 and his redundancy payment was capped at the £76,560 he would have earned if he had remained employed until 65. Had no cap existed, the claimant would have received a payment of approximately £90,000 and, as such, he claimed that the cap amounted to indirect discrimination on the grounds of age.

Considering the fairness of the scheme as a whole, the EAT were opposed to this argument.  The scheme was in place to protect employees’ incomes after redundancy by giving appropriate payments to compensate them for future loss of earnings. It was not improper to have a rule that saved the company the expense of giving a windfall to a redundant employee and the cap was a proportionate means of achieving that legitimate aim.

Kraft Foods v Hastie

Stigma damages only attributable to the dismissal
The EAT has held that damages for injured reputation will only be awarded where the employee’s actual dismissal is the cause of their difficulty in finding new employment.

In this case, the claimant obtained further employment following her dismissal during her notice period but was later dismissed from the new role as a result of receiving an unfavourable reference.  She attempted to claim stigma damages in respect of the position lost due to the unfavourable reference.

The EAT concluded that the claimant’s employer would have given her an unfavourable reference even if she had not been unfairly dismissed. It could not therefore be said that the difficulties she experienced in obtaining new employment were attributable to the unfair dismissal.

Brown v Careham Hall

Unfair dismissal time limits
The EAT has held that it remains reasonably practicable for an employee to file their unfair dismissal claim within the usual time allowed, even though their employer had mistakenly advised them of the time limit.

The employer had wrongly informed the claimant that he had three months in which to present an unfair dismissal claim when in fact he actually had only six weeks.  The claimant’s solicitor negligently failed to notice the error and the claim was presented two weeks out of time.

The EAT found that if the claimant’s solicitor had given him advice of the kind he should reasonably have been given, it was reasonably practicable for the claimant to present the claim in time because the employer’s mistake would have had no effect.  The claimant’s only remedy was to claim damages in negligence from his solicitor. A salutary lesson over the importance of not only making a note of any deadlines but to also double-check them!

Northamptonshire County Council v Entwhistle