In redundancy situations, employers sometimes offer their employees termination packages that are more beneficial than a statutory redundancy payment, provided that they sign a compromise agreement. Why? Most employees have numerous employment rights, such as the right not to be unfairly dismissed. A compromise agreement allows employees to forgo those rights.

Employees who enter into compromise agreements must receive independent legal advice on their employment rights. Our solicitors have the necessary experience to do this, having regularly provided advice in finance, banking, and many other areas of the private and public sectors.

In some circumstances, employees may have concerns about treatment by their employer. If requested to do so, we can advise on the legal issues raised by such treatment. Our role is to advise the employee, not the employer.

If your employer has asked you to sign a compromise agreement, please contact our Employment Department.

Contacts:

Employment Department

Raj Dhokia: r.dhokia@fgdlaw.co.uk
Martin Fine: m.fine@fgdlaw.co.uk

In the past, when faced with making redundancies, employers often chose “LIFO” – “Last In First Out” to select redundancies. A recent Court of Appeal judgment – Rolls-Royce v Unite the Union [2009] – makes clear that relying only on “LIFO” would amount to age discrimination against younger employees.

Rolls-Royce’s redundancy procedure contained “length-of-service” as one of the selection criteria. The Court of Appeal held that this was indirectly discriminatory to younger employees. However, its inclusion was justified and not therefore unlawful – it was a proportionate means of achieving a legitimate aim.

• The legitimate aim was to reward loyalty and create a stable workforce
• It was proportionate because “length of service” was one of a number of criteria used within a fair redundancy selection procedure – relying only on “length of service” – a policy of “last in first out” – would not be proportionate

A redundancy procedure must be based on fair selection criteria that have been properly applied. This requires planning for the possibility of redundancies as early as possible; effective preparation can minimise the possibility of costly and time-consuming employment tribunal claims.

If there may be redundancies in your organisation, please contact us – we would be happy to discuss these matters with you.

Contacts:

Employment Department

Raj Dhokia: r.dhokia@fgdlaw.co.uk
Martin Fine: m.fine@fgdlaw.co.uk

On 1st February 2009, the compensatory award for unfair dismissal increased from £60,600 to £63,000.

On 1 October 2009, the maximum amount for calculating a week’s pay, used to calculate a statutory redundancy payment and the basic award for unfair dismissal, will increase from £350 to £380. This will increase the maximum statutory redundancy payment and the maximum basic award from £10,500 to £11,400.

If you need advice on an employment matter, please contact us – we would be pleased to discuss it with you.

Contacts:

Employment Department

Raj Dhokia: r.dhokia@fgdlaw.co.uk
Martin Fine: m.fine@fgdlaw.co.uk

Minimum pay increases from October 2009 – adult rates for 21 year olds in October 2010.

From 1 October 2009, the new national minimum hourly wage rates will be as follows:-

22 years plus:   £5.80 (from £5.73)
18 to 21 years:   £4.83 (from £4.77)
16 to 17 years:   £3.57 (from £3.53)

The adult rate will be extended to 21 year olds from October 2010, in line with the recommendation of the Low Pay Commission. The Commission was set up about 10 years ago to advise the Government on the national minimum wage.

Contacts:

Employment Department

Raj Dhokia: r.dhokia@fglaw.co.uk

In Richmond Pharmacology v Dhaliwall [2009], an Employment Tribunal found that a manager said to the Claimant who was leaving:

“We will probably bump into each other in future, unless you are married off in India.”

The above comment fell “on the wrong side of the line”, as it evoked a racial stereotype of forced marriages and amounted to harassment.

Compensation was restricted to £1,000, reflecting the fact that the manager had not intended to offend. Tribunals are entitled to look at the effect of the action on the Claimant, not just the purpose (see below). The Tribunal must also consider whether the Claimant’s perception of events is reasonable. A trivial incident will not amount to harassment, whatever its effect on the Claimant.

Note: Section 3A of the Race Relations Act 1976 states that:-

1. a person subjects another to harassment in any circumstances relevant for the purposes of any provision referred to in Section 1(1B) where, on the grounds of race or ethnic or national origins, he engages in unwanted conduct, which has the purpose or effect of: (a) violating that other person’s dignity, or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him
2. conduct shall be regarded as having the effects specified in paragraph (a) or (b) of sub-section
3. only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect.”

If you need advice on an employment tribunal claim, please contact us – we would be pleased to discuss it with you.

Contacts:

Employment Department

Raj Dhokia: r.dhokia@fgdlaw.co.uk
Martin Fine: m.fine@fgdlaw.co.uk

A social worker was sacked because he gave a bible to a client despite the Council’s prohibition on promoting religious beliefs at work. His dismissal was not unfair and he was not discriminated on grounds of his religion or belief. The reason for his dismissal was that he tried to impose his religious views on his client, not the religious belief itself.

To ensure that the needs of all staff are taken into account, employment policies should make clear that:-

• Religious discrimination by any employee is unacceptable and will be treated as misconduct; and
• The imposition by any employees of his or her own views (including religious views) on colleagues or others is unacceptable and may also be treated as misconduct

If you need advice on employment policies, please contact us – we would be pleased to discuss them with you.

Contacts:

Employment Department

Raj Dhokia: r.dhokia@fgdlaw.co.uk
Martin Fine: m.fine@fgdlaw.co.uk

Chondol v Liverpool City Council [2008]

Employment Tribunals were set up to deal with disputes about employment rights. But as Lucy & Others v British Airways [2009] shows, some employment claims can only be brought in the County Court.

78 BA cabin crew brought claims of unlawful deductions from wages under the Employment Rights Act 1996, when their Manchester base closed and, as a result, they no longer qualified for various flying-related allowances.

The Employment Appeal Tribunal decided that the claims were not for unlawful deductions and could not therefore be brought under the 1996 Act. And they could not bring breach of contract claims in the employment tribunals – tribunals can only hear breach of contract claims if the Claimant’s employment has ended. These Claimants were still employed by BA. The claims should have been brought in the County Court.

If you need advice on an employment tribunal claim, please contact us – we would be pleased to discuss it with you.

Contacts:

Employment Department

Raj Dhokia: r.dhokia@fgdlaw.co.uk
Martin Fine: m.fine@fgdlaw.co.uk

With a fanfare of muted razzamatazz the veil of secrecy that has enshrouded the family courts for 40 years is to be lifted. From today their operation will be subject to public scrutiny. Or will it? By sleight of hand and gesture politics this government has, once again, introduced a toothless and cosmetic reform, tossing a delicacy to its friends in the media while shamelessly attempting to delude the people.

The justice secretary, Jack Straw, says that it is vital that the family courts “command the confidence of the public. If justice in these courts is seen to be done they will be trusted by the public”.

The judicial processes of democratic societies are open to the public and the principle of transparency prevails. There are times (for example to protect national security or the identity of a rape victim) when the public’s gaze may, to a degree, be occluded. However, and as a general rule, the doors are unlocked and individuals named and shamed. Courts that operate behind closed doors are the hallmark of repressive regimes.

Family law is a significant exception to this general rule. For example, 40 years ago an enlightened government made radical changes to the law on divorce. One consequence was the scrapping of public trials of divorce hearings, so that the tragic and pathetic details of the breakdown of marriage were no longer dissected by a prurient public and a self-righteous newspaper industry. With one stroke of the legislator’s pen, the press was denied the right to report on individual cases of, say, adultery or cruelty – unless the person involved elected to defend the allegations.

If the protection of an individual’s privacy in relation to his or her marital affairs is a small moral imperative, the protection of their innocent and vulnerable children is a massive one. I recall sitting in an open family courtroom in a small town in North Carolina when the underwear of a benighted and inadequate family was being washed and hung out to dry in front of all who cared to attend the proceedings. Whatever the failings of the adults, and whoever was to blame, I squirmed in my chair as I anticipated the impact on their five children as the secrets of their parents’ bedroom was picked over by their neighbours in the public gallery.

There is, of course, a classic tension between the rights of the individual and those of society. Critics of the opaque nature of the family courts have long argued that if a judge’s performance could be analysed (in much the same way as Match of the Day pundits pick over a referee’s penalty decision) there would be less quirkiness, greater consistency, and outcomes more in keeping with the will of the people. A powerful factor in today’s relaxation of the rules was the lobby for the rights of fathers after relationship breakdown. They argued that the judiciary’s (supposed) bias in favour of mothers depended, for its survival, on closed courts.

An extra tension is added to the mix by the press itself. Its demand for the right to report may well be motivated by a selfless desire for an ever more open, accountable and democratic society. Alternatively it could have come about as the result of an unsated appetite for further salacious and marketable material. Today the media protests are about the restrictions imposed, and the exclusions reserved to judges. Noteworthy by its absence is any protest that the public galleries remain barred.

If Jack Straw is right, that justice needs to be seen to be done, the restrictions and exclusions need to be abandoned. If he wants the courts to be trusted by the public, he needs to let the public in rather than asking them to assess trustworthiness through the prism of a restricted or excluded press. Should he wish to protect the vulnerable and innocent victims of family trauma, he needs to abandon his eye-catching, vote-winning, essentially flawed reforms.

This article first appeared on the Guardian website:

http://www.guardian.co.uk/commentisfree/2009/apr/27/family-courts-media

Contacts:

Family Department

Jeremy Freedman: j.freedman@fgdlaw.co.uk

In a court of appeal judgment today, eagerly anticipated by family lawyers throughout the land, Bryan Myerson failed in his attempt to rewrite his divorce settlement.

In February 2008 he agreed with his wife that he should receive some 43% of the couple’s £25m fortune, with the larger share (around £14m) going to her. Unfortunately for Myerson, he elected to take his slice in shares in his company PCH where he worked as a fund manager. The value of the shares plummeted. His fortune was wiped out. He asked the court of appeal to revisit the settlement, which no longer appeared to him to be fair.

“Fair” has been the watchword in divorce settlements for the last decade or so. Dealing with the case of two Somerset farmers back in 2000, the House of Lords castigated the rationale of judgments made over the previous 30 years which had required wealthy husbands to do no more than meet their ex-wives’ “reasonable requirements”. Their Lordships rewrote the rules to make “fairness” the overriding objective.

The collected judgments of the lower courts over the ensuing ten years have taught us just one thing. No one can agree on what fairness means. Take this example: I have two children, one is a high-flyer, the other a plodder. Does fairness dictate that I should provide for them equally on my death? Or does fairness dictate that I should have regard to their capabilities and provide additional money to the needier one?

Translating that into the divorce arena, is it fair to divide the matrimonial pot equally between spouses or should we compensate the economically weaker (usually the wife) by giving her more of the capital, knowing that the husband will make up the shortfall by earning more in years to come? That we might surmise, is why Myerson “only” got 43% in the first place.

Elsewhere, for example in continental Europe, there is another approach. He keeps what is his and she keeps what is hers. Not for nothing is London characterised as the divorce capital of the world – for wives! In this country the division of assets includes not only joint assets but also assets held in one party’s joint name.

Has the court of appeal been unfair to Myerson? Probably not. For all that he suddenly found himself to be an economic victim, it is hard to imagine that if his stock had doubled in value he would have rushed back to court to offer his wife an extra slice of his good fortune.

The Myersons have paid their solicitors and barristers a king’s ransom in legal fees. They were both represented by top-quality Queens Counsel and junior barristers. In fact, Bryan Myerson had not one, but two, juniors. Their combined legal costs will be in the region of £100,000.

The court of appeal is staffed by three Lord Justices (salary £180,906 per annum) and any numbers of clerks and ushers and other acolytes. It occupies a large slice of prime real estate in one of the most expensive corners of the globe. The expense of providing the services of the court of appeal is borne by the taxpayer. The contribution payable towards those expenses, the fee payable on lodging an appeal, is £400.

Is that “fair”?

This article first appeared on the Guardian website:

http://www.guardian.co.uk/commentisfree/2009/apr/02/divorce-court-of-appeal

Contacts:

Family Department

Jeremy Freedman: j.freedman@fgdlaw.co.uk

“Marry in haste, repent at leisure” – the same can sometimes be said about a resignation.

In Ali v Birmingham City Council [2008], Mr Ali gave his resignation letter to his manager. The manager thought that he seemed upset, so gave him some time (about 30 minutes) to reconsider. At the end of this period, Mr Ali had not changed his mind.

Two days later, Mr Ali telephoned the Council, who confirmed that his resignation remained. Two days after that, he informed his manager that he wanted to withdraw his resignation. The Council did not agree, so he brought unfair dismissal proceedings.

Mr Ali’s contention was that he had resigned “in the heat of the moment”, so that his resignation should not have stood. The Employment Appeal Tribunal held that Mr Ali had resigned.

Lesson:

When a resignation seems to be a “snap decision”, it is prudent to give the employee some time to reflect on his/her decision. As Mr Ali’s case shows, this can be quite brief. And it will only be in exceptional circumstances when an employee can rely on “the heat of the moment” to avoid the consequences of his or her decision to resign.

Contacts:

Employment Department

Raj Dhokia: r.dhokia@fgdlaw.co.uk