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the very latest information direct to your pc… December 2008

Employment

Tamara Ludlow
Senior Lawyer, Employment - London Office

Welcome to the December 2008 edition of our Employment E-news Update. This includes information on the annual increase in compensation limits, the new Acas Code of Practice, national minimum wage, the Government’s consultation on Disability Discrimination in light of the Malcolm decision and details of an important case on the duties of employees leaving to join competitors. We have also featured information on the HSE’s recent advice on risk assessments. We appreciate the difficulties that the current financial climate is causing many businesses and have included information below regarding Morton Fraser's Recoveries Team who can provide a range of cost effective solutions. Finally, the Morton Fraser Employment Team wish all of our subscribers a very happy Christmas with best wishes for 2009.

If we can assist you with any employment issue then please do not hesitate to contact us.

In this edition:

• Annual Increase In Compensation Limits
• New Acas Code On Disciplinary And Grievance Procedures
• Tips Not To Be Part Of Minimum Wage
• Consultation On Improving Protection From Disability Discrimination
• Duty On Employees To Disclose Plots To Leave
• HSE Advise "Don't Over Complicate Risk Assessments"
• Debt Recovery Crucial To Employers In Difficult Times

Morton Fraser is a full service law firm. Annual Increase In Compensation Limits The annual increase in the limits of the compensation awardable by Employment Tribunals have just been published for dismissals (or any relevant event) occurring after 1st February 2009. The key increases are that the maximum Compensatory Award rises from £63,000 to £66,200 with the statutory cap on a “week’s pay” increasing from £330 to £350. The maximum statutory redundancy payment will be £10,500. Although the maximum Compensatory Award will normally be £66,200 this limit does not apply in discrimination claims and also claims for raising certain health and safety issues or for whistleblowing claims.

New Acas Code On Disciplinary And Grievance Procedures The long awaited revised Acas Code of Practice for handling disciplinary meetings and grievances in the workplace has been published. The Code is due to come into effect on 6 April 2009 and will replace the Statutory Dispute Resolution Regulations which are abolished by the Employment Act 2008. Failure to follow the Code could lead to a 25% uplift or reduction to any compensation awarded by a Tribunal. To view the Acas Code of Practice click here.

A separate briefing note is available on the terms of the Code here.

Tips Not To Be Part Of Minimum Wage Under new Government proposals, restaurant owners will no longer be allowed to use service charges to count towards the minimum wage paid to waiters and waitresses. Currently bosses can collect all tips and cover charges and use them to pay workers the minimum wage via the payroll. In terms of the proposals, workers would receive gratuities on top of the minimum wage (currently £5.73 an hour for adults). Launching a consultation on the proposals, which finishes in February 2009, Ministers have indicated they also want diners and drinkers to be given more information about the tips policy of establishments.

Consultation On Improving Protection From Disability Discrimination The House of Lords judgement in London Borough of Lewisham v Malcolm 2008 IRLR 700 made it more difficult for a disabled person to establish that they had been discriminated against for a reason “related to their disability” (disability-related discrimination). The Government are beginning a consultation on the proposal to adopt the concept of indirect discrimination for disability within the Equality Bill. It has been concluded that it would be appropriate for the disability provisions in the Equality Bill to take a different approach from that currently taken in the Disability Discrimination Act 1995 by replacing disability-related discrimination with the concept of indirect discrimination, which is used for other protected characteristics, such as sex, race and age. The Government believes that this will provide improved protection for disabled people in the Equality Bill by ensuring that the legislation re-establishes an appropriate balance between the rights of disabled people and the interest of those to whom the duty applies.
Duty On Employees To Disclose Plots To Leave The importance of the duty of fidelity to employers has been brought to the fore in Kynixa Ltd v Hynes & Ors [2008] EWHC 1495 (QB). In this case three senior employees deliberately misled their employer as to what their next career move was. Each also failed to report to the employer that they knew that the others were planning a move to a competitor. When Kynixa subsequently realised that all three employees were now working for a competitor it sued the three for, amongst other things, breach of the implied duty of fidelity. The judge found that the three employees were in breach of this duty. The Court held that once the employees knew that other senior employees were also planning to leave they should have informed their employer. Damages in the case will be decided at a later hearing but awards of costs against the employees were made. Each of the employees were held liable for a third of employer’s costs and with Kynixa’s costs estimated to be in excess of £1 million these awards are likely to be substantial.

HSE Advise "Don't Over Complicate Risk Assessments" The Health and Safety Executive has pledged its support to a two year European Campaign relating to the topic of Risk Assessment. The HSE's Chief Executive suggests that employers should "keep your risk assessment simple and fit for purpose, make it a living document and involve all the major people in acting on it. Risk assessment is not a bureaucratic paperwork exercise; it is about practical steps you need to take to protect people and get the job done safely." Whilst this is heartening advice employers must make sure that they do not confuse simplicity with inadequate or insufficient assessment of risk and keep in mind that this is not a watering down of the legal duties incumbent on employ