Part-Time Tribunal Members Can’t Have Pensions

In an important test case, part-time medical members of tribunals have failed to convince the Employment Appeal Tribunal (EAT) that they should be entitled to pensions like their full-time, salaried, brethren.

The part-time members, who are paid fees rather than salaries, argued that their treatment violated the provisions of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

An Employment Tribunal (ET) accepted that 85 per cent of the work carried out by full-time regional medical members – the part of their working days taken up by sitting in a judicial capacity – was the same as that done by their part-time colleagues.

However, in rejecting the part-timers’ case against the Ministry of Justice, the ET found that the remaining 15 per cent of the role performed by salaried members differentiated them from their fee-paid colleagues. The ET ruled that the role of the regional members was ‘qualitatively different’ and that the two groups could thus not be regarded as being engaged in broadly similar work.

Whilst not doubting the importance of the work carried out by fee-paid members, the EAT dismissed the appeal. The ET had correctly assessed the evidence and was entitled to conclude that the roles performed by full-time and part-time members were not the same or broadly similar within the meaning of the Regulations.

Armed Forces Personnel ‘Not Employees’, Court Rules

In the context of compensation claims brought by members of the armed forces who are injured at work, the High Court has emphasised that services personnel are not employed by the Ministry of Defence (MoD), nor do they work under contracts of service.

Three servicemen had successfully sued the MoD after being injured on duty. An issue arose, however, as to whether the cases fell within a legal costs regime which applied to certain employers’ liability claims following workplace accidents. Despite the large number of damages claims against the MoD, the issue was a novel one and had not previously been considered.

The Court noted that, for reasons of public policy, the relationship between the Crown and services personnel, as well as police officers, had never been viewed as one of employment. The term ‘contract of service’ had ‘a single meaning which does not vary’ and it could not be argued that services personnel were ‘employees’ within the meaning of the Employers’ Liability (Compulsory Insurance) Act 1969.

The Court noted that, regardless of whether the three servicemen were employees, the MoD owed them duties of care both at common law and under health and safety legislation. However, the Court’s decision meant that the costs regime – under which the MoD had sought to limit the success fees earned by the trio’s lawyers – did not apply to the cases.

Armed Forces Personnel ‘Not Employees’ Court Rules

In the context of compensation claims brought by members of the armed forces who are injured at work, the High Court has emphasised that services personnel are not employed by the Ministry of Defence (MoD), nor do they work under contracts of service.

Three servicemen had successfully sued the MoD after being injured on duty. An issue arose, however, as to whether the cases fell within a legal costs regime which applied to certain employers’ liability claims following workplace accidents. Despite the large number of damages claims against the MoD, the issue was a novel one and had not previously been considered.

The Court noted that, for reasons of public policy, the relationship between the Crown and services personnel, as well as police officers, had never been viewed as one of employment. The term ‘contract of service’ had ‘a single meaning which does not vary’ and it could not be argued that services personnel were ‘employees’ within the meaning of the Employers’ Liability (Compulsory Insurance) Act 1969.

The Court noted that, regardless of whether the three servicemen were employees, the MoD owed them duties of care both at common law and under health and safety legislation. However, the Court’s decision meant that the costs regime – under which the MoD had sought to limit the success fees earned by the trio’s lawyers – did not apply to the cases.

Local Authority Finance Boss Unfairly Dismissed

A local authority’s former head of finance is in line for substantial compensation after he was unfairly forced out of his job – despite failing to convince the Employment Appeal Tribunal (EAT) that he was also a victim of sex discrimination.

The man had been suspended from his post after a female colleague accused him of sexual harassment. Disciplinary proceedings were twice adjourned after his doctor signed him off sick. However, he submitted his resignation after his employers refused to postpone the hearing for a third time.

An Employment Tribunal (ET) subsequently upheld his constructive unfair dismissal claim on the basis that his employers had breached their own policy in investigating the complaint and that the outcome had been pre-judged. His sex discrimination claim was also successful and he was awarded damages of £168,957.

In upholding the local authority’s appeal against the sex discrimination finding, the EAT ruled that there was no factual basis on which an inference could be drawn that he had been less favourably treated than an equivalent female employee would have been.

However, in upholding the finding of constructive unfair dismissal, the EAT ruled that the defects in the disciplinary procedure were such that they undermined the mutual trust and confidence required in any employment contract. The case was sent back to the ET for the man’s compensation to be recalculated.

Government Names a Further 37 National Minimum Wage Offenders

The Government has announced the names of a further 37 employers who have failed to pay their workers the National Minimum Wage (NMW).

Collectively, the offenders owe a total of £177,000 in arrears and have  received financial penalties totalling more than £51,000.

In October,2013, the rules for enforcing compliance with NMW legislation were strengthened, removing restrictions so that any employer found in breach of the law can be named and shamed. Employers who fail to pay the NMW also face penalties of up to £20,000.

In addition, the Government is legislating through the Small Business, Enterprise and Employment Bill 2014-2015 so that the £20,000 penalty can be applied to each underpaid worker rather than per employer.

The names of the 37 offenders can be found here.

DWP Publishes Guidance on the ‘Fit for Work’ Sickness Absence Service

Blood pressure monitorThe Department for Work and Pensions (DWP) has published guidance for employers and employees on the new ‘Fit for Work’ service, previously called the Health and Work Service, which is being rolled out over the coming months.

Under the new scheme, employees on sick leave will be offered an occupational health assessment when they reach, or are expected to reach, more than four weeks’ absence. Normally, employees will be referred by their GP but an employer can also make the referral after four weeks’ absence from work. A case manager will then support the employee through the assessment process and liaise with their employer to ensure that their level of need and the appropriate steps necessary to enable them to return to work are correctly identified. Based on this information, a ‘return to work’ plan will be produced.

In addition, more general health and work advice will be available to GPs, employers and employees via the Fit for Work telephone service and website.

It is envisaged that the new system will operate alongside existing occupational health facilities offered by employers, filling the gap in support that currently exists amongst small and medium enterprises.

From 1 January 2015, there is also a tax exemption of up to £500 per annum per employee on payments for medical treatments recommended by health professionals within Fit for Work and health professionals within employer-arranged occupational health services.

Although Fit for Work is voluntary, the DWP advises employers to update their sickness absence policies to reflect the availability of the scheme.

The guidance, which can be found here, will be updated regularly as the system is phased in.

‘Gold-Plated’ Occupational Pensions Lose Their Lustre

Occupational pensions used to be considered gold-plated – but not anymore, it seems, after a retired employee’s campaign to increase levels of compensation paid by the Pension Protection Fund (PPF) fell on fallow ground at the High Court.

Having achieved a senior position within a large company for which he had worked for many years, the man expected to receive an index-linked pension of more than £56,000 a year. However, eight years after his retirement, the company went into liquidation and his benefits had been capped by the PPF at about £20,000 a year, roughly 26 per cent of the amount to which he would otherwise have been entitled.

His lawyers argued that the cap flew in the face of the requirements of European law that member states take ‘necessary measures’ to protect pensioners whose rights are undermined by corporate insolvencies. It was submitted that the cap had been set too low and that he and others in the same position were entitled to be paid at least 50 per cent of the benefits which they would otherwise have received.

However, in rejecting those arguments, the Court found it ‘almost inconceivable’ that it was unlawful to cap the man’s benefits. There was also nothing in European legislation which required the UK government to guarantee every employee of every insolvent pension scheme a minimum of 50 per cent of his contracted benefits.

Shared Parental Leave and Pay

familyUnder the new Shared Parental Leave arrangements, eligible parents of children due to be born or adopted on or after 5 April 2015 have more flexibility as to how they take time off work to care for their child. Mothers can share up to 50 weeks’ maternity leave and 37 weeks’ pay with their partner so that both parents are able to maintain a strong link to their workplace.

The Advisory, Conciliation and Arbitration Service’s guidance on the new system, ‘Shared Parental Leave: a good practice guide for employers and employees’, can be found here

The Government has developed an online calculator to help prospective parents work out what their leave and pay entitlements under the new system are.  The calculator can be found here.