Business Hub News

Free Business Advice - Cartridges Business Hub providing expert advice for you!

Looking for business advice with the personal touch?  Come and drop into Exeter Library on the 2nd Tuesday of each month; 4pm to 6pm, network, get advice on starting or growing your business or developing your business idea from our range of expert business advisors.

Click here to book

Cartridges Business Hub in collaboration with Exeter Library is providing a regular drop-in business advice service to businesses starting up or growing on the 2nd Tuesday every month from 4pm to 6pm. Just call in on the day. 

Cartridges Business Hub gives you access to free initial business advice and signposting to a range of vetted and trusted expert business advisors on a range of subjects. Library staff will also be on hand to advise and assist with a wide range of free business start-up resources.  Examples of the type of expert advice available:


  • Business planning, 
  • Setting-up, 
  • Trading terms and conditions, 
  • Invoicing, 
  • Debt management 
  • Legal issues, 
  • Sourcing funding and grants, 
  • Product development and design, 
  • IT start up (basic website design, domain name and email), 
  • Accounting, 
  • Marketing and using social media, 
  • Employing people, 
  • Insurance, 
  • Patenting/intellectual property 
  • Telephony

 

Cartridges Business Hub provides on-going support to your business as it grows and changes with our full range of business experts.

 

Exeter Library provides the ideal location for Cartridges Business Hub drop-in as it has been transformed to include bright open spaces with convenient meeting rooms. We will be located next to the Library Business & Information Hub on the ground floor.


For further information call: 07791 870585

email: businesshub@cartridgeslaw.co.uk


For updated news see our Latest News page or click here


April 2015

Sole trader or Limited company?

One of the questions we are often asked is “Should we form a company?”.

People often worry that companies are too complicated and expensive to deal with so they do not consider trading through them.

That’s a pity because they can have many advantages.

Companies are merely a vehicle through which to run your business so we often start by saying, in the end, you have to get the money in and make a profit and this basic rule applies to companies as well as any other trading vehicle.

This may sound a bit glib but it illustrates that running a company doesn’t mean you have to run your business differently.  But having one can be a useful ally.

So why would you trade through a company?  Well here are some of the questions we ask to help decide if it is best to do so.

Is your turnover quite high?

Do you deal in large amounts of money?

Does the nature of your business carry high risk?

Do you employ people?

Are you aiming to expand your business?

Are you in business with people other than family?

Are your profits high?

Are there several people involved in running your business?

If the answer to all these is yes, then it would definitely be worth having a company.  Even if only one or two apply, it would still be worth it.

Why?  Because a company is a separate legal entity from you; it is itself, not you trading under a name.  This has the effect of:-

Isolating your personal affairs (and assets) from your business.

Having in law how you probably picture your business; something different from your personal life.

This means the customers deal with the company, the company has its own bank account, it employs people, it pays the wages, it pays the suppliers, it has its own tax bills, debts etc.

Tax is an area where there is often a benefit.  If a business makes a profit of say £30,000, a company could pay some £3,500 less in tax compared with a sole trader.  Over ten years, that can mean £35,000 extra in your bank or off your mortgage!

If you deal in high value projects like a builder, through no fault of your own, something can go wrong so if the project is carried out by your company, your house and private money are safe, not affected by the consequences of this.

We have seen both these above happen in practice so have seen how companies can be of great help to people in business.  This is only a snapshot of how companies can help you so whether you are starting a business or already running one, it would be a good idea to think about trading through a company.

Steiner & Co

April 2015


5th January 2015

Exeter’s City Link Employees.  A crumb of comfort?

The Exeter employees of failed business City Link have faced a gloomy Christmas and New Year.  What crumbs of comfort can be offered?

At Cartridges Solicitors we can advise upon the compensation due to Exeter’s City Link employees.

There may be redundancy payments due and claims for outstanding holiday pay.  Is there any other compensation due?

Administrators Ernst and Young are under a legal obligation to consult with the work forcebeforeany dismissals and redundancies are made.  This is known as Consultation and is designed to see if there is any prospect of redeploying the Exeter workforce to other City Link depots rather than dismissing them from their jobs.   

So the Administrators have failed to consult.  What can the workers at the Exeter’s City Link depot do?

Each worker is potentially entitled to a Protective Award for up to 3 months’ pay.  The principal is straightforward. 

Has the employer or, in the case of City Link, has the Administrator properly consulted with the work force?  If yes then no Protective Award is due.  If no then a Protective Award is payable. 

The amount of a Protective Award is at the discretion of an Employment Tribunal and can be reduced if, for instance, the redundant worker is in receipt of various benefits following his redundancy. 

Of course one obvious problem is this - If a business is insolvent and workers are being made redundant such as at Exeter’s City Link, then who is going to pay the Protective Award?  It is very unlikely that City Link will have sufficient funds to pay.  The answer is that the Government’s Redundancy Payments Office will pay the Protective Awards, but only if an Employment Tribunal has ordered that Protective Awards be made.

An Employment Tribunal Claim for a Protective Award must be made within 3 months of the date of dismissal, which in the case of Exeter’s City Link employees was on 31 December 2014.  Hence if you want to claim a Protective Award because you have lost your job at Exeter’s City Link you must lodge an Employment Tribunal claim by30 March 2015at the very latest.  Wait any longer and you will almost certainly lose the right to make a claim for a Protective Award.

Funding your Employment Tribunal claim can be expensive so at Cartridges Solicitors we have devised a “No Win No Fee” arrangement (sometimes called a Damages Based Agreement) that ensures you recover as much of your compensation as possible. 

You will have to pay an upfront Employment Tribunal Fee that is up to £250 per claimant, depending upon how many employees bring a claim for a Protective Award.  However, our fees are not required upfront and we only charge a percentage of your winnings if you are granted a Protective Award.  This means that you can afford to bring a claim for a Protective Award. 

If you are an employee at Exeter’s City Link then you should contact Robert Shaw or Amy Morgan at Cartridges solicitors immediately, for a no obligation free consultation please call:

Robert Shaw on 01392 286 782 or 0784 3388 953 or

Amy Morgan on 01392 286762

22 August 2014

Compensation in Discrimination Claims

The way in which an Employment Tribunal decides upon the appropriate level of compensation is relatively straightforward in an unfair dismissal claim. There is a Basic Award that reflects the employee’s age, salary and length of service. There is usually an additional Compensatory Award that reflects the length of time the tribunal consider it reasonable for an employee to take before finding a new job. In short the Tribunal can conduct a financial analysis to arrive at the appropriate award. 

However, how does an Employment Tribunal compensate an employee who has suffered harassment or discrimination at work, and where the award is for injury to feelings.  

In the recent case of the Cadigan hotel v Ms Ozog the Employment Appeal Tribunal had to consider just this point. Ms Ozog worked as a waitress at the well-known London hotel. On several occasions she suffered harassment and sexual discrimination at the hands of the head waiter.  First he touched Ms Ozog inappropriately at work by kissing her hand and touching her arms and back. Secondly he asked her whether she had a boyfriend and told her that the reason he had asked her that question was because she was a woman. Thirdly, in the presence of another woman the head waiter took his belt from his trousers approached Ms Ozog and simulated a sexual act. Throughout the period he generally made threats to Ms Ozog and bullied her. 

Ms Ozog complained to management but inexplicably she was suspended following an investigation into her conduct.  Ms Ozog issued Employment Tribunal proceedings. There was no doubt that Ms Ozog had suffered harassment and direct sexual discrimination.  The more difficult question was to evaluate the level of appropriate compensation. 

The Employment Tribunal concluded that touching and kissing the hand of Ms Ozog was a mild form of sexual harassment which the Tribunal found had made her uncomfortable. The incident involving the removal of the head waiter’s belt was held to be an act of direct sex discrimination and harassment because it related to her sex, which made Ms Ozog very uncomfortable. 

The Tribunal did not consider that asking Ms Ozog whether she had a boyfriend amounted to sexual harassment, nor did it conclude that the bullying or threatening behaviour – whilst clearly unpleasant – was because of or related to a protected characteristic. This is why bullying per se cannot amount to discrimination unless the bullying is associated with a race, gender or other issue enjoying protected characteristic status. 

As any lawyer knows the first port of call when seeking to determine an appropriate level compensation in discrimination claims is to refer to the well-known case of Vento v Chief Constable of West Yorkshire.  This case gave rise to the Vento guidelines which set out the appropriate awards in discrimination claims. 

For, perhaps understandable reasons the tribunal focused on the acts of discrimination and what it considered to be the hotel's failure to respond to Ms Ozog's grievance. However in adopting this approach the tribunal failed to focus on the actual injury suffered by Ms Ozog.   

This approach led to an increased award of compensation for Ms Ozog.  The hotel appealed the decision and the case was heard by the Employment Appeal Tribunal. 

The Employment Appeal Tribunal - regrettably in this instance - stated that the correct approach to the calculation of an award in discrimination claims was to look at the actual injury suffered by the claimant, Ms Ozog. 

The Employment Appeal Tribunal further noted that following the Court of Appeal Judgement inSimmons v Castle the award should have attracted a 10% uplift to the Vento guidelines. 

So, in short if you have suffered harassment, or direct or indirect discrimination at work you may be entitled to compensation.  As to the amount the levels of compensation as set out in the Vento guidelines and applying the 10% uplift are as follows. 

  1. The lower band – for less serious cases, such as where the act of discrimination is an isolated, or one-off, occurrence – is between £660 and £6600. 
  2. The middle band – the cases which are more serious but do not merit coming within the top band – is between £6600 and £19,800. 
  3. The top band – for the most serious cases such as where there has been a lengthy campaign of harassment – is between £19,800 and £833,000 

If you have any problems at work or simply want some advice please do not hesitate to contact our employment team, Robert Shaw and Amy Morgan at Cartridges Solicitors 



1st July 2014

New Flexible Working Requests

With effect from 30 June most employees have a right to request flexible working.

The provisions are set out in the Employment Rights Act 1996 and various regulations associated with the legislation.

In the past the right to request flexible working has only been available to parents of children under 17 years old, or parents whose child is disabled or, to people caring for a vulnerable adult.  This has limited the number of employees who could apply for flexible working.

Under the new provisions any eligible employee can ask their boss for flexible working. The only stipulation is that the employee must have worked for the current business for a continuous period of 26 weeks when the application is made.

An employee can only make one statutory request in any year. Of course it remains the case that an informal request by an employee for flexible working may be made and agreed if it suits both parties.

The only employees that are excluded are those who have worked for less than 26 weeks or various agency workers or office holders whom the legislation has purposely excluded.

The principle behind the Government thinking is to allow a more fluid working place to benefit those employees who have childcare commitments and to promote a healthier work and lifestyle balance. The Government has also advanced the idea that employees who work on a flexible basis of their choosing are likely to be much more motivated, productive and loyal than those employees who are required to work a normal 9-to-5 day.

An application to request flexible working must

1.  Be made in writing and

2.  Set out the proposed change to the employees working conditions and

3.  When they would like the flexible working to come into effect.

4.  The application must be dated.

5.  The employee must also consider what effect the request for flexible working might have on the employer and employee's business.

6.  If the employee recognises there may be problems with, for instance, covering important positions and operating a core staff then the employee should put forward solutions to the problems. 

7.  The application should also state whether the employee has made a previous session application within the last 12 months. 

It is important for employees to bear in mind that if an employer agrees to the employee’s flexible working request under a statutory application then that employee does not have any right to make another request for 12 months. This means that employees must try and think ahead and have in mind plans for at least a year.

If a request for flexible working is made informally then the strict provisions of the statutory request do not apply. For instance if an employee wants a short time off work for a bereavement or to look after a child during the school holidays it may be better to have an informal word with an employer to see if the non-statutory request can be accommodated.

Employers who want to deal with employees constructively and in the best interests of the business should consider developing a new Statutory Right to Flexible Working Policy.  The policy can help the employee and employer both understand the statutory requirements for any request and make sure the formalities are complied with.  The policy should be disseminated to all employees as those who are not parents or carers may not understand the entitlement to request flexible working now applies to them.  The content of the policy will depend upon the nature of the business, it’s work type, size and finances.

As a rule of thumb any Statutory Right to Request Flexible Working policy might well include:-

1.  The way an employee should go about making an application

2.  To whom the application should be made

3.  What the application should say

4.  The response of the employer and confirmation that an employer will consider the request only reject it for one of the prescribed this is reasons

5.  The procedure the employee and employer should follow at any meeting regarding the request.

Any request for flexible working received by an employer must be considered rationally and objectively. An employer can only refuse a request if there are business reasons for doing so.  The business reasons are set out in the legislation and include:-

1.  The additional costs of accommodating the employee's request for flexible working is unacceptably high

2.  The employer will not be able to re-organise his staff to cover the employee's proposed flexible working

3.  The employer will not be able to recruit additional staff to cover the employee’s proposed flexible working

4.  The employer thinks the employee's request for flexible working will adversely affects quality

5.  The employer considers the employees proposed flexible working would have a detrimental effect on the business’ ability to meet customer demand and/or on performance

6.  The employer already has in place plans for a reorganisation and the employee's request for flexible working will interfere with that reorganisation or restructuring.

Employers must be careful to avoid unlawful discrimination in the way in which they decide requests for flexible working and the category of employees who are granted flexible working.  For instance an employer might well think that it is fairer to allow only mums to make flexible working requests to allow them to pick up children from school, and that dads should not be allowed to do so. If so this would be direct discrimination on the basis of gender.

Cartridges can help with all your employment needs, including any advice about requests for Flexible Working. 

Please call Robert Shaw on 01392 286782 or 0784 3388 953


19th June 2014 

Council Job Cuts and how Cartridges Solicitors can Help you.

It has recently been reported that twenty Devon County Council care homes are to close in a bid to slash social care spending by £10.7m.

More than 750 jobs could be lost and 260 residents will be moved into private care homes over the next 18 months.  Another 250 jobs could go in council run day centres as the authority closes 17 of them to save £1.7m a year.

It remains to be seen how Devon County Council will deal with the potential loss of over 1000 jobs in the next 18 months. For those loyal employees whose jobs are at risk it is essential they understand their employment rights and what they are entitled to receive.  Cartridges Solicitors are here to help.

Most employers will offer an employee who is to lose their job a financial package dependent, upon length of service, age and pay. The terms and conditions of the financial package are normally contained in a Settlement Agreement.  A Settlement Agreement, (formerly called a Compromise Agreement) is an important document and it is essential that all employees understand the consequences of signing a settlement agreement.  

Settlement agreements are legally binding documents, the essentials of which are:-

1.  The employee agrees to leave his job on an agreed date in return for which

2.  The employee usually receives a financial payment and may also receive a reference as part of the agreed terms.

3.  Perhaps less well known is that a Settlement Agreement normally means an employee waives any rights to bring a claim against the employer in an Employment Tribunal or Court, with three main exceptions. 

Settlement Agreements are entirely voluntary although they are often agreed during a process of discussion and negotiation.  The parties do not have to accept the terms initially offered and often there may be a process of negotiation during which both sides make offers and counter offers.  The terms and conditions of a Settlement Agreement are often confidential, as employers do not want employees comparing their redundancy offers, and if, unusually an agreement is not reached, the offers and counter offers cannot be used in any claim before an Employment Tribunal or in other Court proceedings.

Complicated?.........

It is and therefore it is very important that you have someone on your side who is experienced and who can look after you from start to finish to make sure you receive the maximum amount of compensation. 

At Cartridges Solicitors we have a wealth of experience helping people whose job is on the line or who have already lost their job. 

We are very happy to conduct a free initial consultation.  If a Settlement Agreement is on offer then we will ensure that your employer pays your legal fees in full so that you do not have to pay for our services at a time when money is tight. 

If you need any advice then please contact Robert Shaw or Amy Morgan on 01392 286782 and we will be delighted to help you.

 

New Employment Law Provisions

08 April 2014

The start of the new tax year on 6 April 2014 has brought with it a plethora of new employment law provisions.

 

Financial penalties for employers

For employers there are potential financial penalties if an Employment Tribunal considers a claimant’s employment rights have been infringed. However, a penalty will only be incurred if the Tribunal finds some aggravating factor in the infringement.

For instance dismissing an employee unfairly may be aggravated by a failure to consult or carry out a fair procedure.

The maximum penalty is £5000 although the Tribunal will apply a 50% discount for paying the penalty promptly. Ironically the monies do not go to the aggrieved employee but rather to the Government via the Employment Tribunal system.

 

Statutory sick pay

Statutory sick pay has been increased to £87.55 per week and the lower rate of statutory maternity pay has been increased to £138.18 per week.

For employers the old system whereby they could recover some statutory sick pay if it exceeded 13% of an employee's national insurance level has finished.

There is a transitional period for employees who were sick prior to 6 April 2014.

 

Compensation limits

The statutory week's pay used to calculate redundancy awards has been increased to £464 per week.

The maximum compensatory award for unfair dismissal is now £76,574 or the lower of 52 weeks’ gross pay.

 

ACAS conciliation

Perhaps the biggest change to the Employment Tribunal regime is the mandatory requirement, with effect from 6 May 2014, for an employee to notify ACAS of a potential claim prior to issuing the claim in the Employment Tribunal.

An employee intending to bring any claim in an Employment Tribunal must complete an Early Conciliation Notification Form and submit it to ACAS. The Early Conciliation Notification Form must initially be completed by the employee even if he has a legal representative.

ACAS will then get in touch with the potential claimant and if he has instructed the legal representative will then deal with that representative.

ACAS will offer an Early Conciliation service, the purpose of which is to avoid the cost, time and possible stress of a Tribunal hearing.

Assuming the employee is interested in conciliation ACAS will get in touch with the employer and will try and mediate a settlement.

Although ACAS officials are skilled in employment law they do not offer legal advice, and conciliation is all about obtaining a satisfactory settlement rather than legal point scoring. 

It is hoped that a sizeable proportion of all potential claims will be settled during Early Conciliation.

 

If either party changes its mind and declines conciliation or if an Early Conciliation Hearing takes place and settlement cannot be agreed then ACAS will issue a certificate to this effect.

If either claimant or respondent decline to attend an Early Conciliation Hearing then ACAS will issue a certificate recording this fact.

An Employment Tribunal will only accept a claim provided it is accompanied with an ACAS certificate.

There are tight time restrictions in the Employment Tribunal. 

Often a claim must be brought within 3 months of the date of dismissal or complaint. This does not leave much time to engage in Early Conciliation. To circumvent the problem the rules extend the time limit to issue an Employment Tribunal claim by one month to allow the parties to fully engage in the early conciliation process.

Financial Penalties upon Employers

06 March 2014

Historically employers who fought and lost employment tribunal claims may have been liable to pay the successful employee an award of compensation but rarely were employers required to pay costs or any other financial penalty.

In July 2013 Employment Tribunal rules changed with the effect that the Tribunal could award costs against any party in an Employment Tribunal claim including a losing employer.

However with effect from 6 April 2014 Employment Tribunal’s have a discretionary power to award a further financial penalty against an employer if it loses an Employment Tribunal claim.  The provision is included in the Enterprise and Regulatory Reform Act 2013. The idea behind the award of a financial penalty against an employer is to penalise employers for breaches of employment and thereby deter any re-occurrence.

The financial penalty is not huge, and may be less than an unsuccessful employer is ordered to pay to a successful employee by way of compensation. The amount an Employment Tribunal can impose upon an employer is 50% of the compensation award capped at £5000.

The Employment Tribunal must take into account the employer’s ability to pay the penalty before determining whether to levy a financial penalty.  Paradoxically well-funded and well run businesses are therefore more likely to be subject to a financial penalty than badly run and impecunious businesses. However, the financial penalty may be imposed only where the Employment Tribunal find there are aggravating features in the way in which an employer has dealt with the employee and / or conducted itself at Employment Tribunal proceedings.

The Enterprise and Regulatory Reform Act does not definitively list the aggravating features that an Employment Tribunal must take into account when determining whether an employer has acted unreasonably. It will be up to the Employment Tribunal to have scrutinise the employers conduct as it sees it. 

However, there are explanatory notes to the Act which provide some guidance on the sorts of behaviour that an Employment Tribunal is likely to take into account.

The sorts of behaviour that are more likely to lead to the levying of a financial penalty include:-

1.  Deliberate, malicious or negligent behaviour by the employer

2.  A large and well-funded employer with resources to operate a dedicated HR team or buy in legal experience

3.  Sustained or repeated breaches, or grossly improper behaviour.

The sorts of behaviour that are less likely to lead to the levying of a financial penalty include:-

1.  Honest mistakes or ignorance of a technical legal point

2.  A small or newly established employer with no or limited HR support and insufficient funds to buy in legal advice

3.  Single or short breaches.

Curiously the law provides a discount to an employer of up to 50% if the penalty is paid within 21 days. The payment is made to the Government’s Consolidated Fund rather than to the Claimant and to this extent reflects impropriety or unacceptable behaviour in the conduct of its case by the employer rather than consequential loss to the employee.  However employees may well use the threat of a financial penalty against a Respondent employer as a means of racking up pressure upon an employer to settle without going to Tribunal.

Flooding and Employers Responsibilities

18 February 2014

 

This year in particular has seen appalling weather and consequent flooding of large parts of the country. The forecast is that whilst the weather may improve the flooding could get worse before it gets better.  Whatever the outlook, for some the floods have proved a real problem.

What implications for business and employees does the flooding herald, and how should employers deal with the floods and what are the ramifications?

1.  Change of Location

Suppose that a business is flooded.  It cannot operate or at best can only operate on half output. 

This may lead to a temporary business closure or the use of alternative office locations or employees working from home. 

Whether employers will be entitled to ask their employees to work elsewhere will depend upon the terms of their contracts, as well as their ability to travel to any new location.

2.  Can employees be laid off?

If the business has to close but employees remain able and willing to work, employers will generally be obliged to pay them.  Some employment contracts may state otherwise but this would be unusual.

Employers can ask employees to go down to a reduced working week, but again it will often be a matter for the employee to agree, unless the contract specifically contemplates this eventuality.  Employers could ask employees to take annual leave, but minimum notice requirements apply before such a request can be enforced. Unless these have been changed contractually or employees are prepared to agree anyway, employers may not immediately be able to impose holidays.

3.  Can employees be made redundant?

Possibly but any redundancy may well require a redundancy payment on the part of the employer, and an employee may challenge the redundancy if within a short time the employer, having got back on his feet, re engages an employee to do the same or similar job.

4.  Safety at work

Legislation requires that employers provide a safe working environment.  If flooding has affected the safety of the building or contaminated it then an employer must rectify the problem.  Aside from any civil claim a whistleblowing claim could arise if an employee feels that the employers’ reluctance to rectify problems has led to a breach of health and safety.  Moreover, flooded premises may give rise to potential insurance and liability issues.

5.  Can an employer require employees to attend work?

Flooding and storms may not just affect the company’s own premises, but may also prevent or hamper staff from attending work.  Employers must act reasonably if requiring staff to travel for their work through difficult or dangerous conditions.  Caution should be exercised before forcing employees on to the roads if there are warnings and alerts in place, and certainly no employee should be forced to drive through hazardous areas. 

Unless the contract states otherwise employers are under no obligation to pay employees who aren’t available for work, even when this is beyond an employee’s control. 

6.  What to do in the long term.

Over the long term, an employee’s inability to come to work may have to be treated in the same way as other long term absence cases.

To date I am not aware of any Tribunal claim in which an employee has lost his job as a result of the floods.  It is too early yet but there may be some in the pipeline.

7.  What to do

If flooding is going to become more prevalent then all employers should be looking at their employee’s contracts of employment to ensure

1.  That employees are not paid whilst not working,

2.  That staff who might be needed to cover those who are absent can be reassigned.

3.  That employees have mobility clauses to ensure they can be required to work elsewhere.

4.  That if flooding occurs then employees agree to reduce to a short working week.

 

For information about this topic and any other business queries please contact Robert Shaw of Cartridges Business Hub on 01392 286782

Since July 2013 the Employment Tribunal has imposed fees:

10 February 2014

 

Since July 2013 the Employment Tribunal has imposed fees. 

These can be considerable.  £250 to start a claim and £950 to have a Hearing.  This at the point in time when someone has lost their job and probably cannot afford such an outlay.  There is a fee remission scheme but it only assists those with modest incomes and capital.

In November 2013 UNISON challenged the introduction of the fee scheme.  UNISON judicially reviewed the Government's policy to introduce employment tribunal application and hearing fees.

The scheme was challenged on four technical grounds, broadly that:

1.  the requirement to pay fees violates both the principle of effectiveness as it is 'virtually impossible, or excessively difficult' to exercise rights conferred by EU law and

2.  it also violates the principle of equivalence as the level of fees 'are less favourable than those governing similar domestic actions'

3.  the Lord Chancellor had acted in breach of the Public Sector Equality Duty in making the Order

4.  the relevant Order was 'indirectly discriminatory and unlawful'

In his Judgment Moses LJ provides a thorough review of the background to the new fee scheme and its relevant provisions. He then tackles each of the four grounds and concludes that

1.  the scheme did not violate the effectiveness principle. It was agreed that the principle applied but, although there are problems with the remission procedure, the "use of the adverb "excessively" in the jurisprudence suggests that the principle of effectiveness is not violated even if the imposition of fees causes difficulty and renders the prospect of launching proceedings daunting, provided that they are not so high that the prospective litigant is clearly unable to pay them". He was therefore "unpersuaded" that the principle had been breached.

2.  the 2013 Order did not breach the equivalence principle primarily because of the difference in liability for costs between County Court and Employment Tribunals, which meant that there was "a real disincentive to claimants of limited means, compared with Employment Tribunals". The recent change in the Lord Chancellor's guidance, such that successful employees are likely to be awarded their fees from their employer, also added weight to this conclusion as did the imminent launch of a free dispute resolution service.

3.  the effort devoted to arguing about the argument for breach of Public Sector Duty could "more properly be devoted to consideration of the substantive grounds, rather than attacks on the procedure adopted prior to the introduction of the regime" and while there is a genuine fear that the policy may impede elimination of discrimination, whether that "fear is well-founded may well depend on evidence yet to be obtained, as to how the regime has worked in practice".

4.  given it was too early to tell whether the fees for Type B claims would fall more heavily on minority groups, as argued by the applicant, it was also not possible to reach a conclusion as to whether the higher fees could be objectively justified.

He therefore dismissed the claim but noted, at that

"the fundamental flaw in these proceedings is that they are premature and that the evidence at this stage lacks that robustness necessary to overturn the regime.  We would underline the obvious: there is no rule that forbids the introduction of a fee regime."

So fees are here to stay, for a while at least. 

3rd February 2014

The Serious Fraud Office (SFO) launched its first prosecution under the Bribery Act 2010 late last year

In September 2013 The SFO brought fraud charges against 4 Directors who were allegedly involved in the sale of bio-fuel products to UK investors by Sustainable AgroEnergy Plc. Three of the men have also been charged with offences of making and accepting a financial advantage contrary to ss 1(1) and 2(1) of the 2010 Act.

The value of the alleged fraud is £23m and the offences took place between April 2011 and February 2012.

The company and its parent company, Sustainable Growth Group, were placed in administration in 2012.  The fraud allegedly took in Cambodia and at first blush may seem to be of little relevance to the UK.  However, the value of the alleged fraud is £23m and has impacted on around 1500 savers and investors who had invested in the company.

So far there has been no prosecution of a corporation (rather than individuals as now) under the Act, however the Serious Fraud Office has indicated that it is currently running two investigations into companies which it suspects may be in breach of their obligations under the Act. 

The Bribery Act creates a new offence which can be committed by commercial organisations which fail to prevent persons associated with them from committing bribery on their behalf. The Act contains two general offences covering the offering, promising or giving of a bribe (active bribery) and the requesting, agreeing to receive or accepting of a bribe (passive bribery).

There is a defence if the organisation can prove it had adequate procedures in place to prevent persons associated with it from bribing, this will act as a full defence. 

There are six principles which an organisation should consider to put in place. Not all these principles will be relevant to all organisations. They are intended to be flexible and outcome focussed. In brief these principles are:

  1. proportionate procedures
  2. top level commitment
  3. risk assessment
  4. due diligence
  5. communication and training
  6. monitoring and review. 

Failure to comply with the Bribery Act is a serious matter and a convicted company can face unlimited fines, director disqualifications and even the prosecution of senior employees. 

Don’t delay in ensuring that your bribery policies are in place and flow through your commercial processes

Cartridges Business Hub can advise you and your business about the Bribery Act.

 

  

27 January 2014

Cartridges’ Business Hub team will be presenting a seminar at the Best of Exeter this Thursday 30th January from 8am for 2 hours.   It will focus on recent business case law and then run through some informative business tips including business status, ownership, employee rights and questions to ask your solicitor.  If you would like to come to this seminar contact the Business Hub Team on 0800 160 1093 or email businesshub@cartridgeslaw.co.uk

The Business Hub Team:  Robert Shaw, Dana Mulligan and Joe Norman

23 January 2014

The right to flexible working

On Wednesday 22 January 2014 ACAS published the responses to its consultation on a new Code of Practice and guidance on flexible working.

Later this year, all employees who have worked for their employer for 26 weeks or more will have the right to ask if they can work flexibly. The consultation asked employers for their views on the draft Code and good practice guidance to help manage flexible working requests.

The legislation which extends the right to request flexible working is contained in the Children and Families Bill. A key element of the revised scheme is the replacement of the current statutory procedure through which employers consider flexible working requests, with a duty on employers to deal with requests in a reasonable manner, and within a reasonable period of time (3 months unless an extension is agreed). Employers do however retain the right to refuse requests based on the existing eight statutory grounds.

ACAS guidance sets out factors to consider when examining requests and includes advice on:

  • making a request to work flexibly
  • handling such requests fairly
  • avoiding discrimination
  • refusing a request
  • dealing with appeals.

Acas was asked to draft the Code to help businesses manage this new right to request flexible working by Government in November 2012. The right to request flexible working is one of a series of measures in the Children and Families Bill 2013. The Code of Practice forms part of the Bill which is anticipated will come into effect in April 2014.

22 January 2014

Changes to Employment Law

Not much by way of interesting employment news this week, but one piece of legislation of considerable significance is due to come into law by the end of the month

The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2013, which will amend TUPE 2006 and the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), will come into force on 31 January 2014

Broadly TUPE protects workers whose employer has been taken over by ensuring the workers are hired on the same terms and conditions as previously.

The key changes under the Regulations include:

1. Service provision changes

The service provision change rules are not repealed, but will be amended to clarify that after the transfer the activities must be 'fundamentally the same as the activities carried out previously'. This reflects most recent case law and applies to TUPE transfers from 31 January 2014.

2. Information and consultation rights

The rules concerning the provision of employee liability information will not be abolished, but the time frame for providing the information will be extended from 14 to 28 days. This change applies to TUPE transfers from 1 May 2014.

In certain circumstances where TUPE and redundancy consultation overlap, the rules will change. Consultation about the redundancies which begin before the transfer takes place can count towards collective redundancy consultation provided the transferor agrees. This consultation will then count towards the 30 (or 45) day collective redundancy consultation period. This change applies to TUPE transfers from 31 January 2014.

Employers with fewer than ten employees (micro businesses) will be allowed to inform and consult employees directly in cases where there is no recognised union, or existing appropriate representatives. This change applies to TUPE transfers from 31 July 2014.

3.  Workplace location changes

The Regulations will be amended so that where the workplace location changes after a TUPE transfer, any redundancies due to that change will not be automatically unfair. This means that as a starting point a change in location of the workplace may be a justifiable reason for dismissal in a TUPE context. This change applies to TUPE transfers from 31 January 2014.

4.  Collective agreements

It will be made clear that where employees have terms and conditions provided for in collective (i.e with trade unions) agreements, only the terms and conditions in the collective agreement existing at the time of the transfer will apply to the employment with the new employer. This change applies to TUPE transfers from 31 January 2014.

Transferees will be able to change terms and conditions provided for in collective agreements one year after the transfer, provided that overall the change is no less favourable to employees. This change applies to TUPE transfers from 31 January 2014. 

5.  Automatically unfair dismissals

Dismissal of an employee will now only be automatically unfair if the reason for the dismissal is the transfer itself. The removal of ‘a reason connected with the transfer’ attempts to limit when dismissals will be automatically unfair. This change applies to TUPE transfers from 31 January 2014.

6.  Variations to employment contracts

A variation to an employment contract will not be automatically void even if the reason for the variation is the transfer itself if ‘the terms of that contract permit the employer to make such variation’. This change applies to TUPE transfers from 31 January 2014.


16th January 2014

Stonewall publishes its list of the UK’s Top 100 Employers 2014

Yesterday Stonewall published its Top 100 Employers 2014 list showing Britain's best employers for lesbian, gay and bisexual staff. Gentoo, the housing and property company, was named as 2014’s top gay-friendly employer; in second place was Nottinghamshire Healthcare NHS Trust and The Co-operative was third.

Britain’s military and security services are well represented on the list, with the Security Service (MI5), Ministry of Defence, the Army and the Royal Navy all securing positions. The Ministry of Defence was named Most Improved Employer of the Year while IBM won the award for Global Employer of the Year.

The Top 100 list is based on the results of Stonewall’s Workplace Equality 2014, the tenth published by the charity. The Index is based on a range of key indicators which include a confidential questionnaire of lesbian, gay and bisexual staff, with over 9,700 participants. This consistently revealed that employees from organisations ranked in Stonewall’s Top 100 exhibited higher levels of staff satisfaction and loyalty.

The Equality Act 2010 legally protects people from discrimination in the workplace and in wider society. Protected characteristics include: sexual orientation, age, sex, disability and race. Cartridges are dedicated to providing a wide range of legal services for LGB and Trans people in need. If you would like to talk, why not call us on 01392 256854.


14th January 2014

Constructive Dismissal and The Right to be Accompanied.

For some years workers have been entitled to be accompanied at a disciplinary or grievance hearing by a friend of their choice provided he/she is either:-

1. A paid official of a trade union;

2.  An unpaid official of a trade union who is certified as competent to act as a companion; or another of the employer's workers.

Occasionally the question arises whether an employee can ask a friend to attend a grievance hearing in circumstances when an employee alleges constructive dismissal.

Constructive dismissal arises when an employee alleges that an employer has acted in such a way as to materially affect the fundamental relationship of employer and employee, such that the employee has no option but to leave. In short the employee resigns but blames the employer for having to do so.

It is difficult to successfully allege constructive dismissal and the conduct of the employer must be fundamentally at variance with standards of good employment practice. Examples might include serious verbal abuse or assault by the employer, an unreasonable refusal to pay wages or a wholly unreasonable demand on the employee. To prove constructive dismissal an employee must show

1.  A sufficiently serious breach of the employment contract on the part of the employer;

2.  A decision by the employee to resign in response to that beach; and

3.  The employee not delaying their resignation.

Often an employee who resigns alleging constructive dismissal is not able to point to a single serious breach of a term of the contract by the employer but simply states that the employer has routinely breached the implied terms, and taken together the employer has fundamentally breached the contract.  In this scenario the employee alleges that the employer’s unreasonable refusal is the “straw that breaks the camel’s back”.

Recently as question arose whether an employee who alleged constructive dismissal and who attended a disciplinary hearing could allege that an employer has acted unreasonably by refusing that employee a right to be accompanied to the hearing.

The Employment Appeals Tribunal had to consider this very question (Leeds Dental Team Limited v Mrs D Rose Case No UKEAT/0016/13/DM)

A Practice Manager worked in a dental surgery. One of her responsibilities was to record other employee's sickness absence.  She failed to do so and a disciplinary process was commenced.  She was then asked to attend a disciplinary hearing. Mrs Rose asked to be accompanied at the hearing by a former dentist who used to work at the practice. Her employer refused, as it suspected the former dentist would support Ms Rose’s position.

Mrs Rose signed off sick and then resigned, alleging constructive dismissal.  Mrs Rose then brought employment tribunal proceedings and alleged that her employer had acted so unreasonably that she had no option but to resign. She cited a number of grounds including the employer’s unreasonable refusal to allow her to be accompanied to the disciplinary hearing by her dentist friend.

As is often the way the Respondent denied that the alleged breaches were sufficiently serious to entitle the Claimant to allege constructive dismissal.

In relation to the refusal to allow Mrs Rose to be accompanied to the disciplinary hearing, the Employment Tribunal found the employer’s refusal had been unreasonable and that it contributed to a breach of trust and confidence.  In particular the Employment Tribunal found that to have to attend the disciplinary hearing on her own caused Mrs Rose undue duress.  It also found there were no grounds for believing that the dentist would have prejudiced the proper conduct of the disciplinary hearing.

When considering all of the alleged breaches including the failure to allow Mrs Rose to be accompanied to the disciplinary hearing the Tribunal found the employer had acted unreasonably.  It has breached the implied duty to maintain trust and confidence in the way it handled the disciplinary process.

What Now

This case now means that employers may well have to accede to an employee’s request to be accompanied to a disciplinary hearing not just by a trade union official but potentially any responsible individual.

However bear in mind that the claim Mrs Rose brought alleged numerous incidents of unreasonable conduct by the employer and its failure to allow her to be accompanied to the disciplinary hearing by a former employee was just one of many grievances.

Certainly no employee should be advised to bring a claim for constructive dismissal if the only complaint against the employer is a failure to allow him/her to be accompanied to a disciplinary hearing by a friend of choice.


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