redundant business woman

Enhanced Redundancy Protections 2020

Will you be removed from your job for redundancy in 2020? It’s an ever-more pressing fear in the looming environment of economic uncertainty, but as an employee you too have rights and options. There are some new legislation coming that may help to address some of these issues.

Defining Redundancy

Before you can appraise if you have a valid reason to claim or contest redundancy, first we must define what redundancy is. According to the Employment Rights Act 1996, an employee has been dismissed for redundancy if the reason is that:

  • the employer ceases to carry on the business in which the employee was employed;
  • the employer ceases to carry on that business in the place where the employee was employed;
  • the needs of the business for employees to carry out work of a particular kind cease or diminish; or
  • the needs of the business for employees to carry out work of a particular kind in the place where the employee was employed cease or diminish.

Note how this means a need for the same amount workers to do a particular job has diminished, not that the need to perform a job has diminished. If a task can be done with fewer employees, or if a company must move or restructure, then that is a valid case for redundancy. If there simply is less incoming work for employees to do, that is not redundancy. If you are doing a job and then they get someone new to fill that job, that is not redundancy! Redundancy happens when the job you are supposed to be doing no longer exists.

It is illegal in the UK to use redundancy as a reason for a dismissal when there no legitimate issues with employee performance.

Redundancy is often used as a convenient excuse for firing employees for reasons less sensitive to voice. It may be a matter of job performance, friction in the workplace, business income failing to support the number of employees, or some form of discrimination. If you get a notice that you may be let go for reasons of redundancy, it may be prudent to look behind that for the real reason.

There are upcoming laws in 2020 that make the excuse of redundancy easier to challenge. It is also sometimes advantageous for an employee to claim redundancy, since there are enhanced redundancy pay arrangements for long-serving employees. Get all that you are entitled to in a dismissal.

 

woring beyond Retirement Age

Working Beyond Retirement Age

The UK does not have a default retirement age anymore, and employers may no longer force employees to retire. Now, a company may have its own retirement cut-off age policy, but all dismissals must come from a justifiable basis instead of simply entitled discrimination, age-related or otherwise.

In a recent judgment of Ewart v The Chancellor, Master and Scholars of the University of Oxford, the Employer Justified Retirement Age policy was meant to provide a proportionate means of creating opportunities of employment for younger and more diverse staff. However, the statistical evidence provided by the claimant proved that the policy only created a small number of vacancies. It was decided by the tribunal that the University did not show sufficiently that the policy contributed to the achievement of its legitimate aims to an extent that it can justify the discriminatory effect.

State pension age in the UK is increasing, and age discrimination is something that concerns many employees who are at approaching an age where finding a new job is quite unlikely if dismissed.

 

Maternity Leave

Pregnancy and Maternity Leave Protection

Many employers don’t like paying out for maternity leave because it is a long period of time of reduced productivity, and there is an urgent need to find someone else to perform the job that the pregnant employee must leave behind. Then once the new normal has settled in, is there a need anymore for the previous employee? This is why women need stronger maternity protections as the mere mention of ‘pregnancy’ sends alarm bells ringing for employers.

According to a government report, one in nine women had been fired or made redundant when returning to work after having a child, or were forced out from unfair treatment. Research estimated that up to 54,000 women a year felt they had to leave their jobs due to maternity discrimination.

Maternity discrimination is of course illegal, and those on maternity leave have special protections in a redundancy situation. Under the Good Work Plan of 2020, there will be expanded redundancy protections – six months after return to work, and up to two years in total for the maternity period.

According to Regulation 10 of the Maternity and Parental Leave Regulations 1999, if your job is at risk of redundancy but you need to be present for interviews – if for health reasons you cannot be present, you do not have to attend interviews. Regulation 10 says that you should be given first refusal over suitable alternative jobs that are not substantially less favorable than your original job, over other employees being made redundant.

Sefton Borough Council v Wainwright EAT 2014 notes that a woman on maternity leave should be considered alongside other employees when assigning employees into other posts.

Men also have protections under Shared Parental Leave in the first year after birth or adoption to be immediately offered suitable alternative employment.

Dismissal Comes before Redundancy Trial Periods

The case of East London NHS Foundation Trust v O’Connor has Mr. O’Connor working as a Psycho-Social Intervention (PSI) worker for an NHS trust. In March 2017 he was informed that the role was being deleted under restructuring on 3rd of July 2017 and he was offered an alternative role of Care Co-ordinator. He began a trial of the role on that date.

O’Connor raised a grievance that the role was not a suitable alternative and the trust agreed to extend the trial period until this was resolved. In Nov 2017 his appeal was rejected and he declined the offer of the Care Coordinator role again. He was dismissed on Dec 2017, and the trust refused to make statutory redundancy payments on the grounds that it believed that the alternative employment had been unreasonably refused.

A tribunal decided that O’Connor had not actually been dismissed until December, and as such the trial period was not in actuality a statutory trial period.

If you are given notice that your role is being deleted, there is no rule of law that the notice of deletion was inevitably amount to a dismissal. Employment solicitors have noted that an employer must also carefully follow procedures in removing employees for redundancy instead of assuming things.

What if the Whole Company Goes Bust?

How will you get redundancy payments when your employer or company turned insolvent and now completely unable to pay your wages? Then you can claim it from the Redundancy Payments Office and the National Insurance Fund.

The Redundancy Payments Service was started to allow employees to receive their Statutory Redundancy Pay in a much more timely manner than having to wait for their employer’s assets to be liquidated.

You may claim your:

  • redundancy pay
  • holiday pay
  • unpaid wages/overtime
  • statutory notice pay

You may apply online at https://www.gov.uk/claim-redundancy.

Weird Facts about UK Lawyers

The United Kingdom has some of the oldest bodies of law in the world. Many of its laws and traditions were foundational for the whole concept of modern democracy. However this continuous grand tradition built over thousands of years also carries with it certain peculiarities that baffle others looking from the outside.

Here are the top 10 weird facts about lawyers and the practice of law in the United Kingdom.

1. The difference between solicitors and barristers

In the practice of law, you might consider the difference between a solicitor and a barrister like that of a general practitioner and a specialist surgeon.

Solicitors deal with clients directly, while barristers are referred to cases by a solicitor. They act as advocates in legal hearings thus they stand in court and plead the case in behalf of the client.

Unlike other countries, where an attorney may be expected to do everything from advising the client, facilitate negotiations, draft legal documents and then travel to see clients and represent them in court – solicitors and barristers have separate duties. Historically, barristers have a “right of audience” with the higher courts and was meant to be an independent operator that do not cultivate long-term client relationships.

But perhaps the most tangible difference is that a Barrister also wears a wig and a gown in court. Yes, those are a required dress code for normal proceedings.

2. The meaning of Esquire

Esquire (abbreviated Esq.) a term of British origin which in Britain, is an unofficial title of respect to denote a high but indeterminate social status. A person who graduates from Law School and pass the state licensing exam (called the Bar Exam), may add the initials J.D. which stands for Juris Doctor or the degree garnered. Once that person has gone thru the rigorous process of taking and passing the state Bar Examination, they can be referred to by the Esquire title. It is then that Esq. is written after her name, instead of J.D.

3. Barristers are required to join an Honorable Society based on an inn

A Barrister must take a one year Bar Professional Training Course in place of the Solicitors’ Legal Practice Course and then they are called to “bar” at one of the four inns where they do a yard ‘pupillage’ shadowing a senior barrister and undertaking some court work.

There are about 150 applicants in one chamber for pupillage. Thus the applicants should make the Application form very engaging so as not to bore the ones who would review their pupillage applications.

The inns are: 1) Inner Temple, b) Gray’s Inn, c) Middle Temple,and d) Lincoln’s Inn, all of which are located in London. These Inns of Court provide dining, residential, office and library accommodations to its members.

4. They have to attend fancy dinners and even karaoke

Once they qualified in any of the inn they applied for, they have to attend the twelve (12) qualifying sessions at the inn which may include fancy dinners, even karaoke (at Middle Temple, at least), in addition to lectures on legal topics and advocacy training workshops.

5. The Queen’s Counsel barristers are known as “silks”

The Queen’s Counsel are a group of senior barristers of at least ten years’ practice that are appointed by an selection panel to serve as “one of Her Majesty’s counsel learned in the law”. They appear at the bar wearing silk gowns while junior barristers wear “stuff”, or gowns made of worsted wool.

6. More than half of those studying law in the UK universities come from overseas

Law Student Applicants from Overseas is higher at 58.01% than from UK students at 41.98%. The the percentage of successful applicants from UK is higher at 72.5% than from overseas at 67.6% (2015-2016). Nevertheless, you might expect to see more than half law students to be foreign students.

The number of applications to law universities in the UK for the period of 2015-2016 was for UK students, 23,885 and for overseas students, 33,010. At 72.5% and 67.6% respectively, the results are 17,335 and 22,320 students. A grounding in UK law is not only for those who wish to establish a legal practice, but also for those who wish to do business in and around the UK.

7. Becoming a Barrister is not cheap

We’re not even talking about education fees or the price of books. You need to shell out around £ 150 for the gown alone, € 560 for the wig, plus a nice bag for £75 and £270 for the case to keep your required dress looking pristine.

Most barristers are self-employed and work in Chambers with other barristers so they share costs of accommodation. They are not allowed to form partnerships or become part of a corporation, although they can be the first resort of solicitors who represent certain clients. Unlike high-power corporate attorneys, barristers due to the cab rank rule are not allowed to refuse a case as long as it remains within their specialty.

8. Barristers in Chambers can work against each other

It is noted that about 80% of barristers around England and Wales are self-employed, the rest being employed in the agencies like the Crown Prosecution Service, solicitor’s firms, or specialized legal departments in industries, commerce, and local governments. Most of them work in shared offices known as Chambers with other barristers.

However, all barristers within a chamber are independent from each other and may often act opposing each other in the same case. By contrast, solicitors in the same law firm are prevented from doing so for sake a conflict of interest.

9. No overtime for Salaried Barristers and Solicitors

A solicitor is paid better than a barrister right out of the gate, though their actual pay scale differs greatly between extremes. For Barristers’ practice of Law, the average NQ (Newly Qualified) Barrister for Criminal Law is similar to Family Law, at £20,000. Of course practitioners versed in commercial law have higher costs at £70,000.

According to 2016 statistics, these are the starting salaries:

Trainee Level £18,000-43,000+ £12,000-60,000+
Newly Qualified £50,000-90,000+ £73,000-300,000+

A City trainee solicitor starts on a salary of £36-40k per year and jumps to £60-70k once they are fully qualified (which takes two years). But then they work 40-70% more than their contracted hours and, aside from social exclusion amongst their non-lawyer friends, they do not get overtime.

10) Barristers are not allowed to advertise

A solicitor is a non-trial lawyer that engages the client directly and handles legal representations and transactions. They don’t, unless they are a solicitor advocate, make court appearances. Barristers deal with the court and doesn’t deal with the paperwork, they are instead retained by the solicitor on behalf of their client. The client never actually directly contacts the barristers.

Going back to the doctor’s analogy again – having a barrister is like your doctor referring you to a heart surgeon. After the operation the surgeon has no more to do with you, but your doctor will take care of your hospitalization and recovery.

A barrister, like a surgeon, is not allowed to advertise their skill and put their work out on the open market but instead get work via word of mouth, repeat business, and being contacted by relevant agencies. Solicitors however are allowed to advertise and can move around the country, doing what most people would visualize as lawyer-y work.

employment law

It’s no surprise that Brexit is leaving most employers and employees in a legal limbo. For all that many may be expecting the post-Brexit environment to be weighed towards employees, of the moment uncertainty only depresses worker’s rights and forces them to cling to whatever signs of stability in employment they can find.

Brexit fears have exposed how a record number of UK Employees are drastically underpaid, with almost 440 thousand people paid below minimum wage, and over 6 million people earn below the ‘real living wage’ of £9/hour or £10.55/hour required to keep their heads above water. The report by the Low Pay Commission found that a higher proportion of women were underpaid and the youngest and oldest were the more affected than other age groups.

This is not new, as the annual list of underpaying companies released by the Department for Business, Energy & Industrial Strategy shows. However the fears of a contracting economy presents a hindrance for small business owners to adjust their pay scales. In order to pay everyone, both employers and employees fear that someone needs to be let go.

Coming to Work Sick Just to Keep Present

Among the most desperate of actions by employees in order to appear valuable is to come to work even when unwell. Already over 70% of UK workers choose to still go to work when they feel ill, a study found. This is presenteeism, and coming to work even when ill has several possible reasons behind it. The fear of staying off work for days may be interpreted as lacking commitment is one, similar to company peer pressure and the high demands of a competitive culture workplace. Other reasons cited are a lack of adequate sick pay and experienced financial difficulties that stress employees to show up to work even when feeling ill.

In a time when there is a labor shortage and other employees are working for more hours for less pay, absenteeism is stigmatized. Many employees reported they already work 68 days more per year than they need to, without overtime pay, as they are required by their bosses to sign a waiver in their employment contract.

The risks of presenteeism however, are many. Apart from worsening the employees health, there is also the danger of infecting more people in the workplace and impacting productivity. For non-infectious long-term ailments, it can worsen to the point of a disability.

The greatest irony is that when someone goes to work when mildly under the weather, others also feel pressured to imitate them in order to demonstrate passion and commitment for their jobs. There is also how high workload and job insecurity itself may require time away from work before developing into illness, but workers feel wary about the consequences of staying away from work until they are eventually forced to do so by burnout or stress-related ailments.

The stigma comes from “older generations that never accepted that someone can be truly be working productively at home”, said George Boué, a vice president of Human Resources at Stiles Corporation. There is a deep suspicion that workers cannot keep on task when they are not under the eye.

Jobs that were once formal fulltime work have become uncertain and transitory in a more gig-based economy. Now employees can be temporary, seasonal, part-time, by agency, freelance, platform-based, outsourced, subcontracted, marginal, etc., and both managers and employees seek some form of stability.

Mike Marsen of the health services company Allies for Health + Wellbeing and a member of the Society for Human Resources Management’s HR discipline expertise panel says there are two types of managers. “The first believes that employees are inherently not willing to work and thus need a lot of rules. These managers will be predisposed to think the worst of any employee, especially when illness is brought up as an excuse for being out of the office.

“The other kind of manager will try to set reasonable standards and trust employees to be adults. The onus is on managers themselves to create a culture where employees feel empowered to take time off, he says. The best way is through leading by example.”

The Holiday Campaign, the Four-Day Work Week and Other Experiments

With the predicted labor crunch after Brexit hits, the government is pulling out all stops to present the UK as still an attractive place for skilled and reliable workers.

It is estimated that in the UK, 1.8 million people are not receiving the holiday pay they are entitled to, and so recently the government launched the “It Comes With the Job” advertising campaign to make employees more aware of their rights as part of the 2017 Industrial Strategy.

Another experiment is the Four-Day Work Week, endorsed by many employers and employees. A recent Oxford study suggested that working four days could improve productivity, leading to a healthier workforce, reduction in sickness absences and better work-life balance. However, it has also its criticisms in that reduced work hours negatively impact those who do need those paid hours. In some sense it is necessary to combat work fatigue, as many in the UK find themselves actually working seven days in the week just to keep ends met. Critics of the theory point to France which implemented a 35-hour work week and the reduction to four working days reduced rather than increased overall employment for those affected by the law.

With the TOEIC scandal having deported over 1000 students and locked away in limbo almost 30,000 other student and work visas, the Home Office finds itself under fire for broad brush responses that drive away thousands of skilled workers and students and leaving them no way to appeal and clear their name.

Many Sick Leave and Time Off Protection Laws are Actually Derived from EU Legislation

The Working Time Regulations 1998 and The Working Time (Amendment) Regulations 2007 implement the EC Working Time Directive which guarantee workers the right for fair working conditions as set out in Principle 10 of the EU Pillar of Social Rights and Article 31 of the Charter of Fundamental Rights of the European Union. These laws provide the limit to weekly working hours, a rest break and minimum daily rest period, the mount of paid annual leave, holiday pay, and maternity and parental leave.

International standards also serve other legislations in place to prevent and remedy discrimination and harassment based on many factors, and whistleblower protection, such as the Equality Act 2010. TUPE regulations smooth the transfer of employees between companies. These protections for workers are to universalize the free movement of people, goods, services, and capital between member states.

Other employment law rights, such as the protection from unfair dismissal and the rights when engaging in strikes, derive solely from UK regulations. When the UK finally leaves the EU, certain laws derived from EU regulations might need to be changed.

Theresa May pledged to “embed the strongest possible protections” for worker rights and entitlements in replacement for scrapped EU laws but Labor and unions remain unconvinced. Even if the parliament did pass equivalent laws to EU standards, they would still lose out on key features like rights having primacy over local laws and the effective enforcement of remedies.

Unions and employment solicitors are concerned that after Brexit, workers will lose access to EU courts that have largely proven to give more sympathetic interpretations of the law to their concerns rather than corporate interests. The UK has a record of resistance to the pro-worker legislation developed by the EU. Labor simply does not trust that the PM’s offer even approaches the need to give precarious workers the full protection they used to enjoy under EU employment law.

Both workers and employers need to keep well-informed and motivated to fight for their rights in order to avoid chaos in their workplace as Brexit finally hits. Delays only keep heightening the uncertainty, even if the worst should hit would be relief, as now they have a stability of a sort to finally get around to fixing it.