April 2010 Archives

[Continued from Election 2010: Comparison Of Employment Law Policies (Part 1)]

If you believe what you read, we're all walking around in a permanent state of righteous indignation listening to an immigration soundtrack of fingernails screeching across blackboards. The words "how dare they?" on everyone's lips.

- "How dare the politicians not take us seriously?"

- "How dare the immigrants take our jobs?"

But is this really the case?

We forget at our peril the contribution immigrants make to this country. Let's face it, we're all immigrants of one sort or another.

The concept of being "native English" or "native British" is an entirely artificial construct. The blood coursing through your veins is just as red as your neighbour's, regardless of where they were born, the language they speak, or their skin colour. Even the whitest of the white among us has a random mix of Saxon/German, Viking/Scandinavian, and Norman/French genes.

Like it or not BNP/National Front, Africa is the cradle of civilisation. The human adventure began in Ethiopia, not Eton old boy.

The overwhelming majority of immigrants come to these shores to plug fundamental skill shortages in our economy. Others come for short periods to study and learn at our world-class universities. And they pay good money to do so - in 2008, tuition fees from international students totalled over £2.5 billion.

Like no other country on earth, Britain has benefited from immigration - except for, perhaps, America. Which, sadly, makes it all the more ironic that our two countries should use and abuse immigrants so.

Oh, say can you see

One has only to look to Arizona to see where frenzied immigration dialogue will lead us.

English tennis player Robert Dee, 23, lost 54 consecutive matches and 108 successive sets at international level... and he can now add an High Court libel case to that ignominious list.

Mr. Dee sued the Daily Telegraph over two articles printed under the headlines 'World's worst ­tennis pro wins at last' and 'A British sensation - the world's worst', which claimed he did not win a single match during his first three years on the professional circuit and compared him to Olympic ski jumper Eddie "the Eagle" Edwards and the swimmer Eric "the Eel" Moussambani.

Following yesterday's side-by-side comparison of the major parties' tax policies, today's blog analyses their position on immigration:

Here's another side-by-side comparison of the major parties' policies, this time on family law:

Major changes to the UK Immigration Rules came into force this month, which affect migrant students and educational providers sponsoring them under Tier 4 of the points-based system.

Only sponsors who hold a Highly Trusted sponsor licence can now offer the following courses, known as 'restricted courses', to Tier 4 (General) students:

• courses at National Qualifications Framework (NQF) level 3 or equivalent; and
• courses below degree level that include a work placement (other than foundation degrees, which can still be offered with a work placement by any Tier 4 (General) sponsor).

Education providers who hold a standard Tier 4 sponsor licence can only offer courses at or above NQF level 4 or equivalent. And they cannot offer courses that include work placements unless those courses are degree-level courses or foundation degrees.

This blog entry seeks to cut through the spin to analyse each of the major parties' policy positions on tax:

BBC News reports the Association of Chief Police Officers (Acpo) has rejected calls from Sikh police officers for the introduction of 'ballistic turbans'. While it says the idea is worth "future exploration", it has instead opted to ban Sikh police officers who wear turbans from joining police firearms teams.

"The police service has a legal duty to consider the health and safety of staff at work and provide appropriate personal protective equipment to staff who are placed in high risk situations," said Chief Constable Meredydd Hughes.

Consequently, Sikh officers will only be allowed to perform firearms operations if they remove their turbans or wear a smaller head covering known as a 'patka', which will fit under a helmet.

Mr. Hughes added that wearing a patka would be "a matter of choice for the police officer" and that "Sikh officers who wear a turban will not be discriminated against if they choose not to perform firearms or higher-level public order duties".

The Telegraph reports that there are more than 2,000 Sikh police officers and staff in the UK.

Last year, a Manchester employment tribunal awarded £10,000 to a Sikh officer who was told to remove his turban during riot training. The tribunal ruled Gurmeal Singh, 31, had been subject to indirect racial discrimination and harassment.

The High Court dismissed Sharon Shoesmith's judicial review application against Haringey Council, Ed Balls, and Ofsted at the tail-end of last week.

Shoesmith lost her job as director of children's services at Haringey Council in December 2008, following the release of an Ofsted report into the death of Peter Connelly.

Baby Peter died in August 2007, aged 17 months.  He suffered more than 50 injuries at the hands of his mother Tracey Connolly, her Neo-Nazi boyfriend Steven Barker, and Barker's brother Jason Owen, despite being on Haringey's child protection register and having 60 visits from council social workers in the eight months before his death.

There are five major differences between wrongful dismissal and unfair dismissal.

(1) Contract vs. Statute

The first key difference is that wrongful dismissal involves a breach of contract, whereas unfair dismissal involves a breach of statutory law.

(2) Courts/Tribunal vs. Tribunal

Another key distinction is that you can pursue your claim for wrongful dismissal either in the civil courts or before an employment tribunal. But you can only claim unfair dismissal in front of an employment tribunal.

(3) Remedies

The rules on remedies are also very different. There are two remedies available for unfair dismissal: re-instatement / re-engagement and compensation. While tribunals rarely order re-instatement or re-engagement for unfair dismissal (since few claimants request it), they never do for wrongful dismissal.

Moreover, unlike wrongful dismissal, compensation for unfair dismissal consists of two elements - the basic award and the compensatory award. The basic award is determined by reference to a fixed statutory formula and limited to a maximum overall payment of (as of 1st February 2010) £11,400. The amount a court/tribunal can order for the compensatory award is also limited, currently to £65,300.

The Leasehold Advisory Service (LEASE), a government-funded initiative to provide free legal advice to leaseholders, has announced a 24% jump in enquiries this year.

LEASE has a team of 16 specialist advisers, all solicitors or non-practicing barristers, available to talk to on the phone and also offers a wealth of information and detailed advice guides online. It anticipates it will receive 35,000 direct enquiries and over 430,000 people will consult its web site in 2010.

Few people can claim really to understand leasehold law, and that lack of understanding can lead to unnecessary disputes and heartache. The complex legislation - there are a dozen or more statutes that apply - affects at least three million leasehold tenants, their landlords, and the managing agents, valuers and solicitors who provide professional services for them.

Currently, service charges are the biggest worry for leaseholders, and account for nearly a fifth of direct enquiries to LEASE.

An Indonesian maid who claims her wealthy employers forced her to work 16 a hours a day, forbid her from leaving the house, and drove her to commit suicide by drinking a bottle of acid, took her case for constructive dismissal, racial discrimination, and unpaid wages to an employment tribunal in London this week.

Interesting article in the Guardian this week about the Strangers into Citizens campaign, which wants the government to grant a "conditional amnesty" to 500,000 refused asylum seekers and visa overstayers. The goal of the scheme would be to create a "pathway into citizenship for long-term undocumented migrants" who have lived in the UK for over five years.

Apparently the "leading supporter" of the initiative is none other than London mayor Boris Johnson. Perhaps a little surprising given the invective directed at Nick Clegg over the past week by Conservatives in relation to his support for a two year "earned route into citizenship".

As Nicholas Blincoe writes in the Guardian, however, Boris Johnson's "staunch and reasoned enthusiasm for the same initiative" makes if hard for the Tories to portray Clegg as soft on immigration.

Type 1 diabetic Alistair Dickson was employed as a community learning and development worker based at the community wing of a school in Edinburgh.

He was diagnosed with diabetes over 30 years ago, but was poorly controlled - partly because his doctor had prescribed the wrong dose of insulin - which meant that he was prone to becoming hypoglycaemic, particularly around mealtimes.

As such, Mr. Dickson was deemed disabled within the meaning of the Disability Discrimination Act 1995.

In June 2007, Mr. Dickson's manager received a complaint from an organiser of a visiting youth club that Mr. Dickson had been seen viewing pornographic material on a school computer. Edinburgh council suspended Mr. Dickson and asked him to attend a disciplinary hearing.

At the hearing, Mr. Dickson accepted that the evidence appeared to show he had viewed pornography on the computer, but said he had no recollection of the incident and his behaviour must have been a result of hypoglycaemia.

Debt Management Today (DMT) reports that the number of divorces in England and Wales declined by 5% in 2008 - its lowest level since 1975.

This is the fifth consecutive annual fall and brings the divorce rate to its lowest since 1979.

Debt Management Today notes it would be folly to attribute the decline to "stronger relationships or a return to 'traditional family values'".

No, the simple reason why fewer people are getting divorced is that fewer people are getting married in the first place.

The "huge costs" of divorce also play a part.

Apparently the average cost of divorce has now reached £13,000. This amount includes such things as legal fees, the costs of finding a new home, and increased outlay on petrol and food.

Debt Management Today spoke to Dani Williams who took out a joint mortgage with her partner. Three years in things started to unravel. "I realised it just wasn't going to work so I had to move out," she said. 

"But I had to keep paying the mortgage repayments until we sold the house. Trouble was my partner didn't want to sell the house, so I felt trapped.

"Almost everything we bought together was on my credit card, but it was all for the house - I had to pay off a £2,000 sofa which I never sat on! But the hardest thing of all was moving, starting again was just so expensive..."

According to some reports, pregnant women and working mothers are under threat as never before. Indeed, the situation has become so bad, many women fear they will automatically be selected for redundancy once job losses are announced.

Of course, redundancy is a potentially fair reason for dismissal regardless of whether you are pregnant or on maternity leave. But, in all cases, employers have the burden of proving they acted reasonably when carrying out the redundancy.

If an employer selects a woman for redundancy purely because she is pregnant, on maternity leave, or recently had a child, she can claim both automatic unfair dismissal and sex discrimination.

If your case reaches an employment tribunal, they will consider whether a reasonable employer could have dismissed you for redundancy in the circumstances of your case.

The tribunal will take into account whether your employer consulted with you and whether the appropriate pool of people for selection was identified.

They will also consider whether suitable alternative work was available and whether the employer considered moving you to a different position.

It is also very important that the employer follows a fair procedure and gives you a right of appeal against any decision to select you.

It is not for the tribunal to decide if the decision by the employer to make redundancies was the right decision, only whether it was within 'a band of reasonable responses' that a reasonable employer might have adopted. A tribunal will be reluctant to get involved in decisions taken for business reasons.

Special rights for women made redundant during maternity leave

Here's a quick checklist of things to remember when writing a will:

(1) Destroy / revoke earlier wills

∑ Revoke earlier wills: your solicitor can do this by drafting a revocation clause in your new will.

∑ Retrieve / destroy copies of earlier wills: sensible to avoid any future confusion over which will is valid.

(2) Make a list of your assets

∑ Make a basic inventory of your assets: to get an idea of what you have - you may have more than you think!

∑ Note down where your assets are located: investment accounts, insurance policies, bank accounts, title deeds - these may be held in a variety of different locations.

(3) Decide who you want to inherit

∑ Who do you want to leave gifts for: family members, friends, charities?

∑ Do you want to leave a set amount of money to someone or specific items? Who do you want to inherit the residuary of your estate (i.e., what's left behind after other gifts are taken away)?

(4) Appoint Executors

∑ Generally a mix of close friends/family and professionals is desirable.

The Times reports that four Premier League linesmen forced to stop officiating football matches at the age of 48 have won their case for age discrimination before an employment tribunal in Sheffield.

Robert Martin, Andy Williams, John Stokes, and Mark Hutchinson worked as linesmen in the Premier League and Championship. Upon reaching 48, the organisation charged with assigning them games - the Professional Game Match Officials Limited (PGMOL) - told them they were now too old to officiate top-level games.

Outraged, the four linesmen turned to the trade union Prospect for help. The union advised them to bring claims for unfair dismissal and age discrimination.

The independent Institute for Fiscal Studies has said the Tories will need to either increase the standard VAT rate to 20% or extend it to food, children's clothes and bus fares - or, more likely, both, to fund proposed cuts in National Insurance and income tax breaks for married couples and higher rate payers.

Earlier this week it warned: "Given the current forecasts, the Conservatives were wise not to make a "read my lips, no new taxes" pledge in their manifesto. William Hague only went so far yesterday as to say: 'We're not looking for tax rises', which doesn't rule anything out."

'Agenda for abandonment'

Peter Mandelson savaged George Osborne's plans for smaller government, cuts, and pledges to give power back to "we, the people", as an "agenda for abandonment".

A former bistro manager hit in the face by an angry customer has lodged claims for constructive dismissal and racial discrimination before a Birmingham employment tribunal. The Birmingham Post reports Mieczyslaw Ratayczyk, 28, resigned after his employer Hotel du Vin responded to the incident by suspending him for two days.

He alleges he received no support from the hotel management. Mr. Ratayczyk said: "Having suffered deep humiliation and distress I was extremely upset that I was suspended.

"Even more surprising was Mark Davies (the general manager) suggesting that suspending me was for my own protection in case (the customer) visited the hotel again.

"This feeling of betrayal was further compounded upon learning that the customer and his guests had been offered a complimentary meal and bottle of wine.

"I do not believe these were the actions of a management team wanting to support a senior member of staff rather confirming to the customer that his actions were acceptable. This was a message to me and other staff that despite being the victim I was in the wrong for something out of my control."

The Lord Mayor of London, Nick Anstee, has joined London First, the City lobby group that represents many of London's biggest companies and banks, in condemning Tory immigration plans.

The Conservative Party launched their election manifesto earlier this week promising to introduce an annual limit on immigration - regardless of the needs of the economy or skills shortages.

In a speech at Mansion House, Mr. Anstee said: "The UK needs to guard against any attempt to block skilled immigration or access to the global talent pool. Capital can move very easily, so can talent.

"Globalisation is part of our DNA in the City. For our part, we will always champion an immigration policy which favours and welcomes overseas skilled citizens to spend some of their career in London."

Mephedrone (a.k.a. "bubbles", "drone", "miaow miaow", "meph", "M-CAT" and "white magic") and other cathinone derivatives will become illegal as Class B drugs under the Misuse of Drugs Act 1971 after midnight tonight.

Class B drugs carry a maximum prison sentence of five years for possession and a maximum prison sentence of 14 years for supplying and other trafficking offences.

Drugs already categorised under Class B include amphetamines ("speed") and cannabis.

Until now, mephedrone has been widely available online, often described by sellers as a "plant fertiliser" or "plant food" and marked "not for human consumption". It has become increasingly popular among young people as a cheap recreational drug - it can be acquired for as little as £3 per dose - and has drawn a large amount of press attention over recent months.

The days when your local "Postman Pat and his black and white cat" would trundle around the countryside together in peace and harmony appear long gone...

BBC News reports that Royal Mail has stopped delivering post to a house in Yorkshire after an elderly cat called Tiger scratched a postal worker.

Tracy Brayshaw, owner of the cat, says the ban is "a bit silly". "We're talking about a 19-year-old geriatric cat here who likes lazing out in the sun."

Her daughter, Amy, 17, added: "Tiger sleeps, he drools when he sleeps and he likes climbing trees, but in the space of three weeks we've had our post banned because he has attacked the postman.

"Apparently he attacked one on the leg and on the arm and chased him down the garden path.

"He is very territorial but he's just an average cat really.

"He wakes up in the middle of the night meowing because he just wants some attention. He's not a monster."

In a minority of cases, annulment may be available as an alternative to divorce.

An advantage of the process is that it can be applied for in the first year of marriage, whereas a divorce cannot. Annulment may also be a useful alternative for couples who have a religious or moral objection to divorce.

Before you can obtain an annulment, however, you must prove that your marriage is either void or voidable.

Void Marriage

In England and Wales, there are five grounds to claim a marriage is void:

Judicial separation is sometimes, albeit rarely, relied on as an alternative to divorce. In the main, only those who have a religious or moral objection to divorce seek one.

Unlike divorce, you can seek a judicial separation at any time after marriage. You do not have to wait one year. This may be another reason why people pursue it over divorce.

Likewise, you might seek a judicial separation if you're unable to prove your marriage has broken down "irretrievably", which is another prerequisite for divorce.

Once you obtain a decree of judicial separation, you are still married to your spouse, but released from the obligation to live with him or her.

Grounds for Judicial Separation

To commence judicial separation proceedings, you can rely on the same grounds as for divorce, namely:

An Ashford employment tribunal has withdrawn to consider its verdict in Sara Trumble's case against Paul McCartney's ex-wife Heather Mills.

Ms. Trumble, 26, has alleged constructive dismissal and sexual discrimination against Ms. Mills, claiming she was forced to resign after returning to work from maternity leave in 2008. 

She claims Ms. Mills treated her in a "humiliating and demeaning" way by replacing her as nanny and asking her to perform cleaning duties, and that her ex-boss has a "distrustful and unpleasant" side.

Ms. Mills denies this. She says her relationship with Sara Trumble turned sour after she refused to pay £4,000 for her to have a breast enlargement operation.

Employers often justify drug testing on health and safety grounds, particularly in safety-critical jobs like driving or medicine. They may also cite concerns over employee absenteeism or job performance.

The practice has increased dramatically in the UK over recent years. Indeed, many businesses seem to have latched on to drug testing as a way to dismiss employees without paying them redundancy.

Informed consent

Your employer must obtain your informed consent before they perform a drug test. This means they have to explain the purpose of the test and wait for you to agree to be tested before taking a sample.

Your employer certainly cannot force you to take a drug test or covertly test you. If your employer tests you without informed consent, you should speak with a solicitor since this is unlawful. Moreover, even if you fail the drug test, your employer cannot rely on the illegally obtained sample to dismiss or discipline you.