The Practical Lawyer

The maximum week’s pay for employment legislation purposes increased to £380 (was £350) on 1 October 2009.

The Advocate General has given his opinion that a German law preventing people over the age of 30 from applying to join the fire service can be justified by the need to establish a balanced age range within the fire service.

Section 57A ERA 1996 gives employees the right to take unpaid time off work, although that is limited to a ‘reasonable amount’ to take ‘necessary action’ to cover particular situations affecting their dependants.

‘Dependant’ is defined as a spouse, civil partner, child or parent (but not grandparent) or a person who lives in the same household (but not Ts, lodgers, boarders or employees).

The starting point in any process to try to vary an employee’s contract of employment is consultation.

If collective consultation is being followed (eg because of possible redundancies) then consultation will be via elected representatives or trade union officials. If there is no trade union, there may already be an elected works council in place, failing which the employer will need to invite the employees to elect representatives.

A round-up of key points on collective redundancies:

If an employer plans 20 or more redundancies within a 90-day period, then collective consultation is required. It does not matter if some employees decide to leave voluntarily (so as to then reduce the number below 20).

There is a duty on employers to consult over the business reasons for making redundancies (eg the financial, operational or structural reasons for the redundancies). In some instances this may require the employer to disclose some of the underlying financial data or business information.

At a time of cutbacks, an employer might want to ask the staff to take their annual holiday leave at times that are quiet for the business (if business fluctuates throughout the year).

A recent high-profile case involved a claim for damages by an LA against its former chief executive. The chief executive had retired early on health grounds, and the LA responded by suing for damages (on the basis of misrepresentation, because she had not disclosed previous work-related depression when answering a medical questionnaire).

The LA’s claim failed. In essence, the problem was that the questionnaire was poorly worded – the employee had been able to give truthful responses, without having to disclose her past condition. The lessons that seem to emerge when drafting such medical questionnaires are:

There are now four main categories of foreign workers:

EU nationals: these have full rights to work here under the Treaty of Rome. Employers should check original passports or ID cards to confirm nationality (and keep a copy);

Bulgarians and Romanians: these are classified as A2 Nationals. In effect, the old work permit regime remains operational for these nationalities. It will be necessary to apply for a work permit for the specific role, and then apply for a worker card for the specific role before the employee starts work;

There has long been confusion as to whether an individual who is a controlling shareholder of a company can also be an employee.

The practical benefit of being an employee is that if there is an insolvency, then every employee can claim the following benefits from the National Insurance Fund:

arrears of pay for up to eight weeks;

statutory notice pay;

up to six weeks’ unpaid holiday pay in the 12 months before the insolvency;

any basic award for unfair dismissal or statutory redundancy;

To what extent can an employer use length of service as a criterion when selecting for redundancy? The concern, of course, is that it might be age discrimination (because younger employees tend to have less service). Against that, it should be remembered that age discrimination can be justified if the employer can demonstrate that the discriminatory act was a ‘proportionate means of achieving a legitimate aim’.