Feature article - Roll on 2012? The Government has lots of changes in store to gladden the hearts of employers - or possibly not. Here are a few of the Government's proposals:   Increasing the eligibility period for bringing an unfair dismissal claim from one year to two years. This is expected to take effect in April 2012. The question is whether this will actually reduce the number of claims or just lead to more employees bringing claims on the basis that their dismissal was for a discriminatory or other reason when no service qualification is required. Introducing fees for lodging employment tribunal claims. The proposed fees are £150-£250 for lodging a claim and a further £1,000 if the case proceeds to a hearing. Fees will be refunded to successful claimants. There is going to be consultation on this. Fees are likely to deter some claimants. Fine if their claim has no merit; possibly not if their claim does. But there are fees in the civil courts. So why should employment tribunals be different? All employment tribunal claims are to be submitted to Acas for a month prior to being taken forward in the employment tribunal. The purpose is for Acas to try to conciliate the claim making tribunal proceedings unnecessary. This could help - but apparently no further resources are being made available to assist Acas manage what will be a huge volume of extra work......      Employment tribunals to have power to fine employers who have breached employment rights. If a tribunal claim is successful it surely follows that the employer must have breached employment rights, this means that respondents risk being fined every time they defend a claim. Shotgun to settle or what? Making more use of mediation and simplifying compromise agreements. Both good ideas if they actually happen. Employers to be able to have "protected conversations" with staff about matters such as their poor performance and when they intend to retire without the risk of what they say being disclosed in a tribunal. This sounds revolutionary but is actually just an extension of the current "without prejudice conversation" that many employers already have with their staff. The Government claims that the purpose of its reforms is to encourage employers to take on staff without fearing that doing so will land them in the employment tribunal with the resultant costs, stress and aggravation that inevitably brings. The cynical writer of this newsletter wonders if another reason might be to reduce the number of employment tribunal claims in order to cut the cost of running the employment tribunals. Maybe it's both! Article 1 - Can an employer refuse an employee time off to attend Friday prayers at a local mosque? This is potentially religious discrimination but as the following case shows, the employer may be able to refuse if there are sound business reasons for doing so. The case is Cherfi v G4S Security Services Ltd 2011 IDS Brief 935 EAT. C worked for G4S as a security guard. He was a Muslim and from 2003 attended prayers at a local mosque on Friday lunchtimes with the permission of his supervisor. However, after he moved to a site in Highgate in 2007, his site manager was not so accommodating, suspended him and gave him a verbal warning. C was then told that he could no longer attend the mosque on Friday lunchtimes because G4S's contract required security staff to remain on site at all times. C was told that he could use the prayer room on site or could work on Saturday or Sunday instead of Friday. C did not want to work on weekends and took the whole of Fridays off as authorised leave.  C brought a claim of indirect religious discrimination. He lost. The EAT (Employment Appeal Tribunal) agreed with the tribunal that requiring C not to leave the site on Friday lunchtimes was potentially religious discrimination. However, G4S's refusal to allow him to do so was justified because of the operational needs of its business. A replacement to cover for C's lunchtimes would have had to be paid for a whole shift and C had been offered various ways of accommodating his requirements such as the on-site prayer room and changing his working days. So G4S had done what the law required them to do in balancing their business needs with the religious needs of C. Learning point: it can be lawful to refuse requests for time off for prayer but the employer must have a good business reason and act reasonably and take the employee's needs into account. Article 2 - Is a reference negligent if it refers to unproven allegations?  Not if it makes it clear that they are unproven according to Jackson v Liverpool City Council 2011 IDS Brief 937 EAT.  J was a social worker in the youth offending team at Liverpool CC. He had 12 years service when he left to take up a new post at Sefton BC in its adult services department. His team manager at Liverpool gave him a good reference. After J's move to Sefton his supervision case files were divided among his former colleagues who discovered that his record keeping was not what it should have been. Three social workers e-mailed J's former team manager at Liverpool CC raising their concerns. The Council did not investigate these as J had left.  When J applied for a post in the youth offending team at Sefton a year later, Sefton asked for a further reference from Liverpool CC. Liverpool's reference referred to J's strengths but also referred to "issues" regarding his record keeping. The reference stated that these would have led to a formal improvement plan but J left before this could be started and did not answer Sefton's two questions about whether it would re-employ J or knew of any reason not to do so.  The head of Sefton's youth offending team phoned G, a manager at Liverpool CC, to follow up the reference. G explained the allegations that had been raised against J after he had left but made it clear that as these had not been formally investigated she could not answer the two outstanding questions either positively or negatively. The upshot was that J did not get the Sefton job and was unemployed for about a year. He sued Liverpool CC for negligence in respect of the second reference.  The CA (Court of Appeal) overruling the county court judge dismissed his claim. Liverpool CC owed a duty of care to both J and Sefton to make sure that the reference was true and accurate and also fair.  Fair meant that the reference had to be balanced. Liverpool CC had made it clear to Sefton that the allegations had not been formally investigated and reinforced this in the telephone call to discuss the reference. This telephone call was a highly material part of the reference. The CA did not think it would have been helpful to J if Liverpool CC had refused to provide the reference altogether as this could have led Sefton to draw even more adverse inferences. The reference was true and accurate and Liverpool CC's subsequent telephone conversation had been careful and fair. Accordingly their reference was not negligent.  Learning point: a reference is not negligent if it is factually correct and fair. Article 3 - Working time for the purposes of the Working Time Regulations and the National Minimum Wage are different A reminder of this is Baxter v Titan Aviation Ltd 2011 IDS Brief 937 EAT.  B was a casual driver working for TA Ltd, a holiday company, which provided a VIP home departure service for clients taking them from their home to the airport. Staff were sometimes asked to stay overnight in a hotel or bed and breakfast so that they would be near to the pick-up point for their client in the morning. This was called a lay-over.  When B started with TA Ltd drivers were paid at half the hourly rate for lay-over time. In August 2006 the system changed: the hourly rate increased but there was a flat rate for lay-overs. In 2009 B presented complaints to the tribunal including that the pay for lay-overs was below the NMW.  The EAT upheld the tribunal's decision to reject B's claim. The issue so far as the NMW was concerned was whether B was doing work during the lay-over. He clearly was not. He was not at his place of work, was not performing tasks and had no responsibilities other than to be available to pick up his client in the morning. The EAT pointed out that it was wrong in principle and liable to be confusing to refer to the definition of working time in the Working Time Regulations in a NMW case, as the tribunal had done. This was because the two were differently structured: the Working Time Regulations emanated from an EU Directive whereas the NMW was part of domestic legislation only. Learning point: just because a worker is working for the purposes of deciding their weekly and daily working time and rest periods under the Working Time Regulations does not necessarily mean that they are also entitled to the National Minimum Wage for this period.    Article 4 - The constituent parts of holiday pay may be more complicated than first appears British Airways plc v Williams and ors [2011] IRLR 948 CJEU is a case about how to calculate holiday pay for airline pilots. This is covered by the Civil Aviation Directive, not the Working Time Directive.  However, the CJEU (the Court of Justice of the European Union) made it clear that the principles regarding calculating holiday pay in the two Directives were the same. The salary structure for pilots comprised (a) basic pay (b) a flying time supplement of £10 per flying hour and (c) an allowance (TAFB) of £2.73 per hour of time spent away from their base airport. 82% of this was treated as repayment of expenses and 18% as taxable.  Holiday pay, however, comprised basic salary only. The pilots argued that to comply with the Civil Aviation (Working Time) Regulations their holiday pay should be at an equivalent or comparable level to the pay they received when working. So, holiday pay should include an element of pay attributable to the flying time supplement and the taxable part of the TAFB allowance. The CJEU agreed with the pilots in principle.  They held that a pilot's pay while on annual leave should include not only their basic salary but all the component financial parts which were intrinsically linked to the performance of their contractual duties plus all the elements relating to their personal and professional status as an airline pilot.  An amount which was sufficient to ensure that the pilot was not discouraged from taking annual leave was not enough. The holiday pay did not need to include pay for occasional or ancillary costs arising at the time of performance of contractual tasks; for instance costs associated with the time the pilot has to stay away from base. It was for the national court to assess what the holiday pay should be taking into account these principles and basing this on an average over a reference period agreed to be representative. Learning point: if an employee's pay includes allowances, you may need to include the allowances in the calculation of their holiday pay.  Article 5 - Can it be an implied term of a contract of employment that an enhanced redundancy payment is dependent on the employee signing a compromise agreement? Yes, said the Court of Appeal (CA) in Garratt v Mirror Group Newspapers Ltd [2011] IRLR 591 if such an implied term has been incorporated into (become part of) the contract of employment by custom and practice. G was a photographer employed by Mirror Group. Before 2002 when the Group made redundancies, employees were paid enhanced redundancy payments and signed compromise agreements. There was no express contractual term relating to enhanced redundancy payments in employees' contracts. In 2002 the Group recognised the British Association of Journalists. It entered into a collective agreement with them relating to the calculation of enhanced redundancy payments. The agreement did not refer to these being subject to a compromise agreement, but it stated that redundancy terms that were in force before the collective agreement would be maintained for employees in receipt of 2 years' notice.  In 2005 G's contract was amended to refer to the recognition agreement with the union.  In 2006 G was made redundant. He refused to sign a compromise agreement and was not paid the enhanced terms. He brought proceedings in the county court claiming he was entitled to the enhanced redundancy terms without signing a compromise agreement.  The Court of Appeal (CA), upholding the decision of the county court judge, rejected his claim. The CA held that before 2002 it was an implied term of employees' contracts that in order to receive an enhanced redundancy payment employees had to sign a compromise agreement. It had been incorporated into their contracts by custom and practice. The judge had found that this practice was widely known to the workforce and had never been challenged. So, the practice of tying the enhanced redundancy payment to the signing of a compromise agreement satisfied the tests of being reasonable, certain and notorious. The 2002 collective agreement did not change this. It was concerned solely with the calculation of redundancy payments and referred to maintaining the pre-2002 redundancy terms for certain staff. The requirement of the compromise agreement was reasonable because the employer had a legitimate interest in achieving finality and it was proportionate because if the employee did not want to sign, he or she did not need to do so. The employee had a choice of whether to sign the compromise agreement and get the enhanced payment or leave without it and retain their right to sue. Learning point: remember that contracts have implied terms as well as express ones