Legal Protection for employers legal protection for employers

Autumn 2007  


With effect from 1 October 2007, the National Minimum Wage has been increased. The main rate of pay for those aged 22 and over has risen from £5.35 to £5.52, the development rate for those aged 18-21 has increased from £4.45 to £4.60 and the development rate for 16-17 year olds has gone up from £3.30 to £3.40.


Also as of 1 October 2007, holiday entitlement has risen to 4.8 weeks. This means all employees working a normal 5-day week will be entitled to 24 days paid holiday instead of 20. For part-time workers, holiday entitlement will be calculated on a pro-rata basis (4.8 times their usual working week) regardless of whether or not they usually work on bank holidays. The holiday entitlement is set to rise again from 1 April 2009 to 5.6 weeks, which will mean that those working a five-day week will be entitled to 28 days holiday. There are 8 public and bank holidays each year and the statutory minimum holiday entitlement can include these holidays. This means an employee working 5 days a week should be allowed at least 16 days holiday a year plus bank and public holidays. It appears that the purpose of these increases is to ensure that all employees get at least 20 days paid holiday plus bank holidays and public holidays, or a further 8 days if they are required to work bank and public holidays. Employers should, with immediate effect, ensure that their pay levels and holiday entitlement entitlements and procedures are updated.


For those of you about to take on seasonal, or younger employees to assist with the upcoming Christmas season, please remember the law requiring you to provide the national minimum wage, sufficient breaks, paid holiday and a written statement of terms and conditions. In addition, be aware that in certain circumstances seasonal staff can still bring a claim for unfair dismissal and that all discrimination claims have no service qualification. If in doubt, treat all temporary staff in the same manner as permanent employees.


Figures published on the Employment Tribunals website show that the number of claims in total from April 2006 to March 2007 rose dramatically. From April to March 05/06 the total number of claims accepted was 115,039. From April to March 06/07, this had risen to 132,577.

Equal pay claims have seen the most significant increase, rising from 17,268 in 05/06 to 44,013 in 06/07. The number of Age Discrimination related claims since the new regulations were introduced last year was a relatively modest 972. It was anticipated that there would be many more claims in this area after the introduction of the Age Discrimination legislation. We shall have to wait to see if this figure is set to rise in the future. In the meantime, employers should ensure that all mandatory employment law requirements are up to date to ensure that they do not add to these statistics.




Employment Law changes at a frightening pace. Our fixed fee package for employers is competitively priced and provides a complete employment law advice and assistance service for a one-off fee. We will provide mandatory documentation to include terms and conditions of employment and an overview of your existing documentation. Members have unlimited free access to our telephone and email legal advice line. And if despite all our best efforts if you find yourself facing a claim, the package includes free legal representation at Employment Tribunals.

If you would like details of our fixed fee package or a quote on a no obligation basis, please contact Martin Laver on 01392 423000.



The Racial and Religious Hatred Act 2006 came into force on 1 October 2007. The Act extends the crime of incitement to commit racial hatred to cover religious hatred. The offence applies to the use of words or behaviour which are threatening and intended to stir up religious hatred against a group of people defined by reference to their religious beliefs or lack of belief. This offence is not limited to individuals. A company will also be guilty under this Act if:

"it is shown that the offence was committed with the consent or connivance of a director, manager, secretary or other similar officer."

If found guilty of this offence, the officer of the company involved, as well as the company itself, will be liable to punishment which can be a fine or a prison sentence of up to seven years.


The case of Paterson v Commissioner of Police of the Metropolis concerned a police officer with dyslexia and how the condition affected his ability to take an exam for a promotion. In the initial tribunal hearing it was decided that taking an exam was not a normal ‘day-to-day activity’ for the purpose of the Disability Discrimination Act 1995. As for activities the tribunal accepted as being day-to-day, it was decided that Mr Paterson’s dyslexia did not affect him substantially. The decision was criticised by the Employment Appeals Tribunal, who commented that when considering whether the dyslexia had a substantial effect, it was not a question of whether the person is disadvantaged with reference to the ordinary population as a whole. Instead it was how the individual concerned carries out activities compared to how he would carry out the activities without the impairment. The Employment Appeals Tribunal also found that taking an exam for a promotion was in fact a ‘normal day-to-day activity’ for the purposes of the Disability Discrimination Act.

This decision widens the approach taken to the Disability Discrimination Act and employers should take care in assessing whether or not a particular impairment has a substantial effect.


A 14-year-old girl is challenging 74 year-old legislation preventing anyone under the age of 16 from working past 7 o’clock in the evening. Watch this space as the challenge may have far reaching consequences for anyone employing people under the age of 16.



The European Court of Justice has recently given a ruling on the question of whether employers can set salaries based on their employee’s experience ( Cadman v Health and Safety Executive). There are arguments that setting salary based on experience can amount to sex discrimination because women are more likely to take breaks from work due to maternity leave and caring for their children. The ECJ held:

  • that experience is important to an employer as it enables the worker to perform their duties better
  • that the decision to pay a more experienced male worker more than a less experienced woman in the same job doesn’t have to be justified unless it can be shown that his experience does not enable him to perform his duties more efficiently
  • that justification would be required where an employee provides evidence raising ‘serious doubts’ that length of service is appropriate.

The case will go back to the Court of Appeal to decide whether Mrs Cadman has raised ‘serious doubts’. Hopefully the Court of Appeal will then provide guidance on what constitutes ‘serious doubts.’ Until then, employers should still justify why experience is a deciding factor for an employee receiving a higher rate of salary.


(Smith v Michelin Tyre Plc.) A recent decision in the Scottish Employment Tribunal provides some indication of how tribunals may approach the non-smoking issue following the introduction of the smoking ban in England in July 2007.

For many years, Michelin's Dundee factory had adopted a strict no smoking policy in unauthorised areas. A breach of this policy was listed as gross misconduct in the factory's disciplinary procedure, which would, in serious cases, result in dismissal without notice. Michelin decided to use the introduction of the public smoking ban in Scotland (which took place in March 2006) as an opportunity to extend its no smoking policy to cover all areas of the factory and designated areas outside the factory. The new policy was communicated to all members of staff. It was stated that if a member of staff was seen smoking, they would be asked politely to stop and reminded that this "may" be treated as gross misconduct. On 21 November 2006, Mr Smith was caught smoking at the fire door in the locker room and was suspended.

At the disciplinary hearing, Mr Smith did not deny the allegations but in his defence put forward several mitigating factors – he had been under pressure, was suffering from depression, was "addicted" to tobacco and had lit up without thinking. Michelin took into account the mitigating factors and Mr Smith's 12 years service but found that this did not negate the fact that he was guilty of gross misconduct and he was summarily dismissed. Mr Smith's appeal against his dismissal was rejected and he brought a claim for unfair dismissal.

The tribunal held that Mr Smith had been fairly dismissed by Michelin. The tribunal concluded that Michelin's decision to dismiss was within the band of reasonable responses available to a reasonable employer. The tribunal stated that the introduction of the legislative ban on smoking did not add to the employee's breach, as Michelin already had a no smoking policy in place. The employee may have been more successful had he argued that the policy was unclear.

For employers, this case highlights the importance of drafting policies clearly and consistently.


The EAT in Aptuit (Edinburgh) Ltd v Kennedy has confirmed that an employer's obligation under the statutory dismissal and disciplinary procedure to notify an employee of his right to appeal does not mean that the notification must be made in writing. However, we would always advise employers to put it in writing, if only to avoid any allegation at tribunal that your employee was not afforded the right.


In the recent case of The Department for Constitutional Affairs v Jones (2007),Mr Jones had been working for some years for the North Wales

Magistrates’ Courts Committee (NWMCC), but was suspended following allegations of financial irregularities. Shortly after his suspension Mr Jones was diagnosed as suffering from depression and anxiety.

Following receipt of medical advice, the initial date for Mr Jones’s disciplinary hearing was postponed. Further medical advice subsequently suggested that the hearing should be postponed for a second time. However the NWMCC were reluctant to postpone the hearing again. They went ahead and held the hearing in the absence of Mr Jones and dismissed him.

Despite being told by his wife, union rep and doctor that he was probably disabled for the purposes of the Disability Discrimination Act 1995 Mr Jones was reluctant to accept the fact. After some time Mr Jones finally accepted his disability and submitted a claim beyond the usual 3 month time limit for doing so. Mr Jones asked that the deadline be extended on the basis that it was just and equitable to do so in the circumstances.

The tribunal granted the extension focusing on Mr Jones’ genuine reluctance to accept that he was disabled coupled with the NWMCC’s eagerness to proceed with the disciplinary hearing despite medical advice to the contrary. The tribunal commented that had the hearing been held at a later date then Mr Jones would have had more time to accept his condition and would have probably submitted a claim in time.

The NWMCC appealed to the Employment Appeals Tribunal and the Court of Appeal. The original decision was upheld in the Court of Appeal, commenting that the tribunal was entitled to treat Jones’ state of mind at the time as the central issue.

The decision to uphold the original ruling should serve as a warning to all employers to heed medical opinion before pressing on with disciplinary action. This is especially so in cases of depression and mental illness where the refusal to accept the diagnosis is often a symptom of the illness itself.


In Homeserve Emergency Ltd v Dixon (2007),it was decided that where an employer is considering the dismissal of an employee or taking disciplinary action, it must generally follow the Standard Dismissal and Disciplinary Procedures (SDDP). This includes two crucial steps:

Step one , the employer must set out in writing the employee's alleged conduct or circumstances which lead them to contemplate dismissing or taking disciplinary action against the employee. This must be sent to the employee along with an invitation to a meeting.

Step two, the meeting must not take place unless the employer has informed the employee of the grounds, eg in a misconduct case, setting out the case against the employee.

If the employer fails to follow the SDDP then the dismissal is automatically unfair.

For employers the case provides a very good illustration of the importance of following the correct SDDP procedures. Employers should be aware of the importance of stating in the step one letter the risk of dismissal rather than just relying on a perceived implication. Our recommendation therefore is ‘State it, don’t imply it.’



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