The main effect of these draft regulations is to implement the government’s previously announced intention to give new mothers the right to transfer the second 6 months of their 12 months maternity leave entitlement to the father.

Statutory Maternity Pay (£123.06 per week, rising to £124.88 in April 2010, payable for 9 months in total) will effectively continue even if part of the 9 months relates to this “transferred” leave. Under current law men are entitled to two weeks paid paternity leave.

Although the regulations will come into effect on 6th April 2010 the provisions noted above and below will have effect only in relation to children whose expected week of birth begins on or after 3rd April 2011. However back up provisions (for example a new right not to suffer a detriment by reason of exercising the basic rights noted here and a related extension of the automatically unfair dismissal provisions in ERA 1996 s.99) apply from 6th April 2010.

The Work and Families Act 2006 introduces a new entitlement for employees who are fathers or partners of mothers or adopters to take additional paternity leave in the first year of their child’s life or the first year after the child’s placement for adoption. These draft regulations will confer the right to take additional paternity leave, following the birth of a child, to fathers or spouses and partners (of either sex) of the child’s mother. In the case of adoption, the entitlement is granted to persons who have been matched with the child for adoption and who are spouses or partners (of either sex) of the adopter who has elected to take adoption leave (defined as “the adopter” for the purpose of these Regulations).

Read our forthcoming newsletter for more.
http://www.netlawman.co.uk

The right to statutory leave is not “inalienable”. Although an employer must not act unreasonably or capriciously so as to deny any lawful requests for leave, it is possible that contractual provisions (such as notice periods for applying for leave) may operate to prevent an employee taking all his leave before a leave year expires.

http://www.netlawman.co.uk

A highly paid London-based German banker, Achim Beck, has successfully brought a claim for age discrimination against his former employer, the Canadian Imperial Bank of Commerce, after he was made redundant.

An employment tribunal ruled that Mr Beck had been the victim of a “sham” redundancy process with the aim of replacing him with someone younger. Although he had been made redundant along with several members of his derivatives marketing team, the bank had already drafted a plan to rebuild the business with new hires and was in the process of consulting head hunters. An internal memo revealed that part of the plan was to find a new head of derivatives marketing with a “younger, entrepreneurial profile.”

Compensation for the age discrimination is to be assessed at a later date.

The case is of some general significance, especially in relation to disclosure of documents. Mr Beck won an order from the Court of Appeal in June 2009 requiring the Bank to disclose documents which it had sought to keep confidential.

A further claim of race discrimination made by Mr Beck  (on the basis that the Bank favoured Canadians) was dismissed by the tribunal. This is somewhat redolent of the 2007 claim made against the Dresdner Kleinwort Bank by an Australian banker, Malcolm Perry, who alleged that he was forced out of his job because (ironically) he was not German or German speaking. Like Mr Beck, Mr Perry also lost his race discrimination claim.

http://www.netlawman.co.uk

The Parliamentary Joint Committee on Human Rights has been examining the Process for appointments to the Equality and Human Rights Commission.  As part of that process it has been asking why the Commission is paying Neil Kingham, its interim chief executive, £1,000 per day.

This follows previous evidence sessions with the Chair of the EHRC, Trevor Phillips OBE, and with former EHRC Commissioners, Professor Kay Hampton, Professor Francesca Klug OBE, Sir Bert Massie and Ben Summerskill OBE.

The committee was told on 15th December that since the former chief executive Nicola Brewer (salary – £185,000 pa)  left the EHRC in May there had been a “process to recruit her replacement”.  However  “issues over salaries are delaying an appointment”. The process has now been suspended, more than six months after the position became vacant, until a decision is made about how much to pay. Harriet Harman told the committee that “The likely scenario is a new chief executive on considerably lower pay than the old one”.

Ms Harman was also challenged about her decision to re-appoint Trevor Phillips as EHRC chair. Lord Morris wanted to know why the position was not opened up to competition. Apparently Harman’s reply was “My approach was whether Trevor had the right qualities to lead a big and important organisation.”

Jonathan Rees, director-general of the Government Equalities Office, told the committee that Trevor Phillips was reappointed in September 2009 for three years and cannot be re-appointed a third time. Mr Phillips is paid £115,000 for 3 1/2 days a week.

http://www.netlawman.co.uk

British Airways PLC says it is seeking a court injunction to stop the planned strike by cabin staff after the Unite union ignored a 2 p.m. deadline to call off the proposed 12-day strike.  The strike is due to take place over the Christmas and New Year holiday period.

BA says it has written to the Unite union outlining “irregularities” in its ballot of workers, which it says makes the vote invalid.

Unite issued a press release (”BA cabin crew vote nine to one for strike action”) on 14th December announcing that its members working for British Airways returned an overwhelming vote in favour of strike action over changes to terms and conditions.  The twelve-day strike is due to commence on 22 December 2009. It is mainly in response to a proposal to cut by one the number of cabin staff on long haul flights. The union says that the proposed changes also mean the abandonment of long-standing collective agreements concerning allowances and working practices.

Making the strike announcement, Unite assistant general secretary Len McCluskey said: “It goes without saying that we have taken the decision to disrupt passengers and customers over the Christmas period with a heavy heart.  We sincerely hope that the strength of this vote will make BA think again and talk in earnest with us about how this disruption can be averted.”

http://www.netlawman.co.uk

Court of Appeal – 02/12/2009

In a claim under the Protection from Harassment Act 1997 (which will be rare in matters concerning the workplace) the court must focus primarily on the requirement that the conduct complained of be “oppressive and unacceptable” (as against merely “unattractive, unreasonable or regrettable”), albeit that it should also bear in mind the authority that the conduct must be of an order that would sustain criminal liability.

Miss Veakins was a trainee electrician. She brought a claim in the County Court under the Protection from Harassment Act 1997, arguing that although she was usually a robust woman her supervisor did not like her and so “made life hell for her”. She had been continually picked on and victimised and thus became clinically depressed. Crucially, in this particular case, none of these matters were challenged and so her evidence was accepted by the Recorder.

“… it is doubtful whether the legislature had the workplace in mind when passing an Act that was principally directed at “stalking” and similar cases. Nevertheless, there is nothing in the language of the Act which excludes workplace harassment. It should not be thought from this unusually one-sided case that stress at work will often give rise to liability for harassment. I have found the conduct in this case to be “oppressive and unacceptable” but I have done so in circumstances where I have also described it as “extraordinary”. I do not expect that many workplace cases will give rise to this liability. It is far more likely that, in the great majority of cases, the remedy for high-handed or discriminatory misconduct by or on behalf of an employer will be more fittingly in the Employment Tribunal.”

The appeal was allowed.

http://www.netlawman.co.uk

Following revelations of the blacklisting of construction workers, the government has announced that it will introduce new rules banning the practice of blacklisting workers for their trade union membership or activities.

This announcement was made together with the publication of a government response to a consultation on new regulations to prevent blacklisting. The new regulations, if they are implemented, will:

• make it unlawful for organisations to refuse employment or sack individuals as a result of appearing on a blacklist;
• make it unlawful for employment agencies to refuse to provide a service on the basis of appearing on a blacklist; and
• enable individuals or unions to pursue compensation or solicit action against those who compile, distribute or use blacklists.

Commenting, Employment Relations Minister Lord Young said “There is already legal protection against the misuse of people’s personal details. We will now strengthen the law by introducing new regulations to outlaw the compilation, dissemination and use of blacklists.”

http://www.netlawman.co.uk

This article in the Law Society Gazette refers to the BIS July 2009 consultation on Employment Tribunal claims and the Public Interest Disclosure Act”.

The article reports the views of the Employment Lawyers Association. The main point is a fear that empowering the employment tribunal service to forward details of claims involving PIDA allegations to the “relevant regulator” if the claimant consents, as proposed, would give whistleblowing claimants ‘improper bargaining power’.

The ELA points out that this could be used by claimants as ‘leverage to get a higher financial settlement than they would otherwise expect’, in return for not pursuing a serious allegation. It could also mean that serious claims of corruption would never reach the regulator.

http://www.netlawman.co.uk