Requests for information from Job Centre Plus

When an employer receives a letter from Job Centre Plus asking for information about an ex-employee it is a legal requirement to respond, in the form that has been requested, and within the time period stated. It is a criminal offence to:

  • intentional delay or obstruct the Authorised Officer of the Job Centre Plus in the exercise of their powers;
  • refuse or neglect to comply with a requirement to allow access to electronic records; and
  • refuse or neglect to answer any question or to furnish any information or produce any document when required to do so.

It’s not uncommon for employers to receive a questionnaire from Job Centre Plus asking to know the reasons for the employment coming to an end, but for the employer and now ex-employee to be in dispute about the reasons behind this. An initial refusal to provide information will not be considered an intentional delay or obstruction, where the refusal is given in order to seek legal advice before responding. However, the advice in that scenario would be to respond truthfully (e.g. the employee was dismissed, the employee walked out etc) but to include a reference to any ongoing or even potential dispute.

How do you like your eggs?

Which of the following benefits do you offer your employees – company car? Private medical insurance? Late night taxis? Pay to freeze eggs? One of the funniest spoofs I read this year,  courtesy of Personnel Today, was the announcement by ‘Appebook’ of its new policy of paying for their female employees to have their eggs frozen in order to increase the number of women in leadership positions within this fictional tech company. The aim of its policy, Personnel Today tells us, is simple: “allowing female employees to fulfil their maternal ambitions alongside their career ambitions by enabling them to freeze their eggs so they can have babies when it suits them”.

This is not, in fact, as far-fetched as it first sounds – at least, not if you are aware of some Silicon Valley companies like Facebook and Apple offering the same ‘perk’.

As a working mum who advises both employers and employees on discrimination, I have seen my fair share of equality and family friendly policies and have both my own personal and professional views on how effective these policies – including this one – are in practice.  On occasion, could employers be guilty of using a sledge hammer to crack a nut? That’s not for me to say, but what I sometimes find concerning is not necessarily the policy itself, but the beliefs or views that may have informed it. This is perhaps best illustrated by the fictional words of Appebook: “it goes without saying that once a woman has decided to unfreeze her eggs and have a baby she must come back to work full time if she expects her career to continue where it left off”.

The question therefore is if an employer’s negative gender stereotypes about women’s work ethic has resulted in her being treated less favourably would our employment laws protect her?

The simple answer is yes. The Equality Act 2010 makes it unlawful to discriminate on the grounds of gender whether it is in the selection for a job, the terms upon which employment is offered, training, promotion, work practices, dismissal or any other disadvantage because of sex for example, sexual harassment. And yet, employers are still falling foul.

Anecdotal evidence suggests most (but, sadly, not all) employers are avoiding the obvious ‘faux pas’ – not asking at the interview when the applicant intends to start a family or dismissing her because she has announced she is pregnant – and are not of view that female employees’ careers are dead in the water on the arrival of a baby. However, many employers are still grappling with the less obvious discrimination. For instance, I am regularly asked how to deal with flexible working requests. Or more specifically, how to say no to requests such as part time working, school hours or working from home. And why do they want to say no? Because more often than not employers automatically assume that it will not work for the business and the employee will no longer give 100% to the work they do for the business. The employer simply wishes to point to one of the statutory business reasons to allowing them to refuse without properly applying their mind to the request.

What is seldom appreciated is that this refusal could amount to indirect sex discrimination and, importantly, if the refusal is not in pursuit of a legitimate aim it will be capable of being objectively justified. For example, where an employee requests a job-share it may be a reasonable business need to ensure a constant flow of information about the work but overstating the problems of job-sharing and ignoring the advantages will not justify a refusal of the request.

Gender inequality is a fiercely debated issue, however, irrespective of any personal view held on the existence or not, extent or even justification of discrimination in the workplace, the fact that the number of sex discrimination claims made to the Employment Tribunals continues to rise as the number of other employment claims falls suggests that there may be a problem with workplace polices, their implementation or both.  The simple advice is not to get carried away with innovative policies, don’t shy away from speaking with your employees about their requests to work flexibly and sharing your initial reservations and don’t approach any flexible working request with a  closed mind. They might just have the next big idea on a better way to work that could benefit your business and save you the time consuming and costly business of a Employment Tribunal claim.

Employment Law: is your workplace fit for Fit for Work Scotland?

What were you doing on Monday 15 December 2014? Enjoying (another) pre-Christmas lunch, having a few festive drinks or wrapping your secret Santa present? Or were you accessing health and work advice through Fit for Work Scotland’s website and free phone because you just didn’t know what to do next with an employee on long-term sickness absence? My guess is, whatever you were doing, it probably wasn’t the latter.

There was no fanfare as the Scottish Government launched Fit for Work Scotland last week. Surprising, as it has high hopes for this independent service; to make occupational health assessment and advice more readily available to GPs, employers and employees to help employees return to and stay in work. It’s being paid for by the scrapping of the Percentage Threshold Scheme; so, if you ever wondered why you could no longer claim statutory sick pay from 6 April 2014, this is the reason why.

There are two elements to Fit For Work Scotland: advice and assessment. Advice can be accessed now by going to www.FitforWorkScotland.scot<http://www.FitforWorkScotland.scot> or by telephoning 0800 0192211. The assessment element will be available from January 2015 although the precise date is not yet known (you can register on the website for updates). When it does go live, all employees who have reached 4 weeks of sickness absence – or are expected to – can be referred by their GP or employer for a telephone based assessment with a health professional. The Scottish Government claims that “through a bio psychological, holistic approach this assessment will identify any obstacles preventing the employee from returning to work”.

The health professional will give advice about appropriate interventions and a return to work plan will be produced to tackle any obstacles to returning to work. The service can also provide case management for those employees with complex needs and signposting to other services for support for health related issues, workplace issues or work place adjustments and non-health and non-work related issues, if appropriate.

While at first blush it appears everyone’s a winner with this strategy, be mindful that the health professional will provide their advice and prepare the return to work plan in consultation with the employee only. And let’s be frank about this, anecdotal evidence tells us that the employee is almost always going to give the health professional a one-sided version of events. What then does the employer do with this information?

Take for instance an obese employee suffering from, say, diabetes, high blood pressure and chronic fatigue (obesity can be a disability) who has been off for several weeks and is expected to be off for several weeks more. If the health professional advices that the employee could drop to a safe weight within 12 months and the return to work plan should involve the provision of a bigger desk and a parking space closer to the front door should the employer be expected to wait 12 months for an improvement in the employee’s absence and must it make these adjustments until then? The employee is also unlikely to have explained how crucial their role is to the business and that it may not be possible for their employer to keep their job open for any length of time. Can the employer safely ignore what the health professional had to say? And what if the cause(s) of the employee’s illness are non-health or non-work related – to what extent is the employer expected to accommodate for this in the return to work plan? Worryingly, this assessment and whether the employer followed it could used as evidence in an unfair dismissal or discrimination claim.

Until these questions are answered it may be sensible, at least in more complicated cases, to also make use of the traditional method of requesting a medical report from the employee’s GP or make a occupation health referral. The employer will have an opportunity to provide the GP or OH with details of the employee’s duties and responsibilities and ask specific questions. The report will then provide the information that is required to make a truly informed decision about whether the employee can be fairly dismissed or any adjustments that will assist the employee’s return to work.

Employers’ duties grow as ECJ rules obesity can be a disability

About a quarter of the adult population in the UK is clinically obese and this is set to rise according to NHS statistics. What then are employers’ obligations to their obese workers in light of the European Court of Justice’s decision this week that obesity may be classed a disability?

Under the Equality Act 2010, a person is considered to have a disability if he or she has a physical or mental impairment and it has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.

In FOA (Kaltoft) v Billund Mr Kaltoft was a clinically-obese childminder for a local council in Denmark weighing about 160kg (25 stone). He was dismissed due to redundancy (there had been a fall in the number of children); he alleged that obesity was a factor and brought proceedings against his employer of 15 years. Speaking to the BBC earlier this year he said “I can sit on the floor and play with them, I have no problems like that. I don’t see myself as disabled. It’s not OK just to fire a person because they’re fat, if they’re doing their job properly.”

The District Court referred questions on obesity to the ECJ for a preliminary ruling. The ECJ held that obesity itself cannot be regarded as a ground for protection against discrimination, however, it also held that “under given circumstances, ‘obesity’ entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one”, it could be a disability. The origin of the disability, or contribution to it, were irrelevant.

Closer to home a High Court judge also ruled this week in the case of John Walker, a 21 stone man dismissed from his IT manager’s post at Sita Information Networking Computing UK, that obesity could be a disability. Mr Walker was dismissed after spending seven years off work with health problems linked to his weight.

There are many conditions for example, diabetes, depression, chronic fatigue, and joint-pain associated with and potentially compounded by obesity and these may be chronic impairments that have a substantial effect on an individual’s everyday life. The more severe the level of obesity, the greater its impact is likely to have on the person’s health, and so more likely it will amount to a disability.

Employers should consider whether, in the particular circumstances applying to individuals, the worker might be disabled. If obese workers are protected by disability discrimination laws, employers will be required not to discriminate because of an actual or perceived physical or mental disability and must consider making reasonable adjustments for them as they do other disabled employees. There may also be important implications for ill health retirements under an employer’s pension scheme.

2015 Traineeship

We are looking to recruit a trainee solicitor to start in January 2015.

 

We are a niche business law practice offering commercial advice in our core practice areas – corporate, property, commercial contracts and employment.

We have offices in Edinburgh, Dunfermline and Salisbury and we are an active member of Avrio Advocati, an International legal network.

 

The Role

We offer trainee solicitors the opportunity to work and gain experience in all aspects of our practice.

We are committed to providing a quality trainee programme whilst taking the time to offer individual training, and having some fun along the way.

 

The Person

We seek an individual who can combine talent, independence of mind and creativity with the ability to work effectively as a member of our team.

You should have a good law qualification, be enthusiastic, motivated and flexible.

 

The Reward

In addition to paying the Law Society’s recommended rate for trainees we also offer an excellent employee benefits package.

 

 

If you would like to be part of our continuing success, we invite you to apply to join our team as a trainee solicitor.

 

Please write with a copy of your CV to:

 

Lorraine Gunby, Practice Director

CCW Business Lawyers Ltd

Crescent House, Carnegie Campus, Dunfermline KY11 8GR

 

Or send by e-mail to lorraine.gunby@ccwlegal.co.uk

 

Closing Date: 19 December 2014

 

Shared Parental Leave

The Shared Parental Leave Regulations came into force on the 1st December. Shared parental leave (SPL) will be available to parents of children with an expected week of childbirth, or who are placed for adoption, on or after 5 April 2015. The Regulations are designed to allow mothers to share their leave with their partners with a view to removing the traditional gender presumption that a mother should be the primary carer in the first year.

To be eligible for shared parental leave employees must have 26 weeks’ service at the 15th week before the expected week of childbirth (or at the week in which an adopter was notified of having been matched with a child for adoption) and must still be employed in the first week that SPL is to be taken.

SPL will not replace current maternity, adoption and statutory paternity leave. Rather SPL is optional for parents and intended to give working families more flexibility and choices over when they take leave during the first year of their child’s life or adoption and who takes that leave, allowing parents to be on leave at the same time if they wish.

The mother must take the first 2 weeks’ of leave (or 4 weeks’ if she works in a factory) as compulsory maternity leave in relation to the birth of a child. Thereafter the remaining 50 weeks’ of leave (and 37 weeks’ statutory pay) can be shared between the parents. The leave can be taken consecutively or concurrently by both parents.

The Regulations are very prescriptive and stipulate that the mother and her partner must give their employer 8 weeks’ notice of their intention to take SPL. SPL can be taken in three separate blocks of as little as one week periods which could pose logistical headaches to employers, although there is a requirement on parents to agree the timing and periods of SPL with their employer. Ultimately an employee who requests a single block of leave will be entitled to that leave, however, an employee who asks to take discontinuous blocks may have their request refused after a 2-weeks discussion period.

So what should employers do now? It is important that employers ensure that they have Shared Parental Leave policies in place for both birth and adoptions on, or after, 5 April 2015. Employers will also have to amend their Paternity Leave policy as of 5 April as partners will now no longer be entitled to Additional Paternity Leave. However, the eligible partner will still be entitled to 2 weeks’ of ordinary paternity leave. Employers should also consider, if they offer an enhanced rate of contractual maternity pay, whether they should offer this for SPL as there is a risk that not to do so could amount to sex discrimination.

Fife Student Entrepreneur Award Calls For Entries

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Following the hugely successful West Fife Young Entrepreneur Award 2013 we said we were looking forward to being involved again in an even bigger, better programme and Fife’s business community has not let us down.

Backed by leading businesses across the Kingdom including the lead sponsor CR Smith, the Fife Student Entrepreneur Award has grown from the success of the West Fife Young Entrepreneur Award. CCW was proud to run last year’s competition and help find the winner Lachlan Edwards who has a music channel on YouTube which he plans to develop as a showcase for new musicians.

CR Smith has declared the competition now open to all 16-24 years olds in education in Fife and is putting up a £2,500 cash prize and one-to one business coaching with Chairman, Gerard Eadie CBE. Mr Eadie said:

 

“There are young people out there with the ideas, the resilience and the resourcefulness to become the successful business owners of the future. They will be the ones creating employment in the years to come and this award is all about encouraging and supporting them now.

“There will be one ultimate winner, judged on their entrepreneurial qualities and their business idea, but for everyone who takes part this is an opportunity to tap into the experience and expertise of many of Fife’s successful local businesses.”

All finalists will be invited to a workshop to learn about business as well as to develop and refine their business ideas before the final presentations in February 2015.

The winner, who will receive a prize package of £15,000 in cash and expertise, will be the college or school student who shows the greatest entrepreneurial qualities and presents the most compelling business idea.

CCW is proud to be an award sponsor alongside Fife College, Thomson Cooper, Santander, Internet Creation, Kingdom Insurance, Managed IT Experts, Sign Plus, Uniq Marketing, Multi-Print, Liberty Business Centres, and Business 50.

 

Entry forms can be requested from Pauline Braisby at Pauline.braisby@crsmith.co.uk