Welcome to LookOut, Anderson Strathern's regular update providing you with news and views on employment law.

With the festive season very much upon us, this edition of LookOut offers tips on ensuring the office Christmas party doesn't leave you with a string of grievances in the New Year.

The news items this week focus on the Agency Workers Regulations as the qualifying period for equality of treatment takes effect on Christmas Eve as well as a private member's Bill to reform certain areas of law insofar as they seek to exclude people from certain offices on grounds of mental health.

We also look at the offshore working time cases in which offshore workers were claiming that, in addition to having 26 weeks' onshore (and not at work) each year they were entitled to four weeks' leave under the Working Time Regulations.

The Employment and Pensions Unit of Anderson Strathern LLP wishes you all a merry Christmas and a happy and prosperous 2012!

LookOut on … Christmas parties

’Tis the season to be (not too) jolly!

Oh come all ye faithful

Christmas spirit

Misguided by mistletoe

All wrapped up

God rest ye merry gentleman

LookOut on… news

Agency Workers Regulations alert: the (Christmas) eve of the qualifying period

Mental Health (Discrimination) Bill

 LookOut on … cases

Working Time Regulations – offshore workers’ holiday appeal rejected

Equal pay – the civil court route

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LookOut on… Christmas parties

’Tis the season to be (not too) jolly!

For some it’s a chance to kick loose, for others a night to endure. Love it or hate it, the party season is here. While office Christmas parties can be a great opportunity to reward staff for their hard work, failing to consider the potential fall out can leave employers with a hangover that lasts long after the celebrations come to an end.

Here are some tips on making sure your party doesn’t bring January blues:

Oh come all ye faithful

If you are recruiting additional staff to cope with increased business over the Christmas period, you now have a duty to ensure that temporary staff are treated in the same way as permanent staff – this includes invitations to Christmas parties.

Christmas spirit

Employers who maintain an unlimited free bar may be accused of encouraging excessive alcohol intake. Alternatively, employers keen to avoid being labelled a “Scrooge” may consider issuing a limited number of vouchers for alcoholic drinks. Ensuring that the consumption of food takes place can also be a wise move!

Be respectful of employees who, for whatever reason, do not drink. Don’t marginalise and exclude the non-drinkers by an event which is focussed on the consumption of alcohol. Employees may not drink for religious reasons and there are potential discrimination issues here. Ensure a plentiful supply of alcohol-free alternatives and lots of water. Keep an eye out for employees under 18 who should not, of course, be permitted to drink alcohol.

Managers themselves should be careful not to get carried away by the party spirit and make promises to staff that they wouldn’t make in the sober cold light of day!

Misguided by mistletoe

Even if the party is held away from the office and out of work hours employers will still be vicariously liable for the discriminatory acts of its employees. Employers may wish to remind staff of the standards of behaviour expected.

Sexual harassment is an obvious risk. Your staff policies on bullying and harassment will still apply at the office party and it is worth reminding staff of this and where they can be found in advance. If any allegations are made during or after the event, employers should follow their usual disciplinary and/or grievance process and ensure that the complaint is investigated thoroughly before any action is taken. Whilst it is easy to dismiss inappropriate behaviour as “banter” or “the drink talking”, any harassment complaint should be taken seriously.

By the same token, if you are running an office Secret Santa, tell staff that gifts should be inoffensive. While some may find a raunchy Mrs Claus outfit hilarious, the recipient might not feel the same.

All wrapped up

Consider how your employees will get home after the party. Employers have a duty of care towards staff and should not let any employees drive home drunk. Provision of coaches may be a good idea for further afield venues or consider making arrangements for taxis in advance if your venue is not near public transport.

God rest ye merry gentlemen

Be clear about your expectations regarding absence the next day. Ensure that all staff know the extent to which you will be lenient about coming to work late and what will happen if these expectations are breached.

Before yelling “bah humbug” and cancelling everything, staff events can be a great boost for morale and loyalty and by keeping in mind a few simple steps you can look forward to a cracker. Adopt an “anything goes” attitude however and Yule be sorry!

For further information please contact Jill Urquhart.

LookOut on… news

Agency Workers Regulations alert: the (Christmas) eve of the qualifying period

With the festive holiday period fast approaching, those organisations which use temporary agency workers should bear in mind the fact that the first day upon which agency workers can qualify for equal treatment under the new Agency Workers Regulations 2010 is fast approaching and will be here (just) before Christmas.

Since coming into force on 1 October, the Regulations have allowed agency workers access to facilities, amenities and job vacancies of the hirer. Liability for failure to comply with these requirements rests with the hirer.

However, 24 December 2011 is the first day upon which the all important twelve week qualifying period will have elapsed. Those agency workers who have completed twelve weeks’ service with the hirer on this date will be entitled to receive the same terms and conditions of employment as they would have received had they been hired directly by the hirer, including:  

• key elements of pay;
• duration of working time;
• night work;
• rest periods;
• rest breaks;
• annual leave; and
• paid leave for ante-natal appointments.

Liability for failure to ensure that agency workers receive the same terms and conditions of employment lies with the agency rather than the employer. However, if the temporary work agency can show that it took reasonable steps to obtain the required information from the hirer, and acted reasonably in determining the agency worker’s basic terms and conditions of employment, it will have a defence to any breach. Further, the hirer will be liable for any breach of this part of the Regulations to the extent that it is found to be responsible for the breach, e.g. by failing to provide information to the agency when required.

AS view...

Those hirers of temporary agency workers who have not yet done so should finalise and implement their approach to the Regulations as soon as possible and, in any event, before Christmas Eve. As best practice, hirers should keep records of when agency workers will complete the twelve week qualifying period, bearing in mind the provisions of the Regulations dealing with those situations in which service will be broken, suspended or will continue. Hirers should also make sure that temporary work agencies are provided with information in relation to the terms and conditions of employment to which agency workers are entitled after completion of the qualifying period. By providing such information hirers will protect themselves against incurring any liability in the event of a breach of the Regulations by the temporary work agency.

For further information please contact Louise Tierney or Andrew Brown.

Mental Health (Discrimination) Bill

Lord Stevenson recently introduced his Mental Health (Discrimination) Bill to Parliament, which aims to reform certain aspects of the current law relating to people suffering from poor mental health. The Bill seeks to amend the law in a number of areas including the ability to serve as a Member of Parliament and to serve on a jury. The area of most interest to LookOut is the proposal to amend the Companies (Model Articles) Regulations 2008 to revoke the current provision which states that a person automatically ceases to be a director as soon as, by reason of that person’s mental health, a court makes an order which wholly or partly prevents that person from personally exercising any powers or rights which that person would otherwise have (in other words, sectioned under the Mental health Act).

AS view…

Some directors’ contracts of employment provide that their employment can be terminated with notice if they cease to be a statutory director of the company. A senior employee who ceases to be a director as a result of his or her mental health could therefore find themselves in the position where their employment is also terminated, although the disability discrimination provisions of the Equality Act 2010 will undoubtedly apply. Mental health charities and the Government support the private member’s bill as being a positive step towards the eradication of discrimination in our society against those who suffer from mental health conditions.

For further information please contact Alan Glazer or Lizzy Campbell.

LookOut on... cases

Working Time Regulations - offshore workers’ holiday appeal rejected

The Supreme Court has rejected an appeal in the long running case of Russell v Transocean International Resources Limited which involved claims for holiday pay from workers who were employed on a pattern of two weeks onshore and two weeks offshore. They were required by their employers to take their holiday entitlement during the two weeks they were scheduled to be onshore.

The workers raised proceedings in the Aberdeen Employment Tribunal, arguing that the Working Time Regulations 1998 entitled them to take four weeks’ paid annual leave in addition to their scheduled periods onshore. In other words, they were seeking four weeks’ paid annual leave on top of the 26 weeks they spent on shore (and not working) every year.

The Employment Tribunal found in favour of the employees but the Employment Appeal Tribunal, the Court of Session and now the UK Supreme Court found in favour of the employers - time spent onshore satisfies the workers’ annual leave entitlement. Thus the workers are not permitted to take holidays during the time they should be working offshore.

AS view…

This has been a long running battle and the Supreme Court’s decision will no doubt come as a huge relief to employers in the offshore industry as well as those whose employees work such a pattern as the potential liability for claims for back dated holiday pay was likely to run into millions of pounds. The unions involved have indicated that they are now considering industrial action.

For further information please contact Chris McDowall or Claire Hendry.

Equal pay – the civil court route

The Court of Appeal has recently given its judgment in the case of Birmingham City Council v Abdulla which is a case concerning the equal pay claims of 174 former Council employees. The Equal Pay Act 1970 (and now the Equality Act 2010) provides that an equal pay claim lodged in an Employment Tribunal must be submitted within the period of six months after the last date on which the Claimant was employed by the Respondent. Unlike other types of claim, the Tribunal has no discretion to extend the six month time limit.

In the Abdullah case the Claimants had failed to lodge an equal pay claim in time in the Employment Tribunal and sought to raise equal pay claims in the civil courts by arguing that the failure to pay them equal pay was a breach of contract. In the English civil courts the time limit for making a breach of contract claim is six years, in Scotland it is five years.

The High Court held in favour of the Claimants and allowed their equal pay claims to proceed. The Council then applied to strike out these claims on the basis that the Employment Tribunal would be a more convenient forum in which to deal with the claims. The Court of Appeal held that the claims should not be struck out as, given that the claims were time barred in the Employment Tribunal, the Claimants would be prevented from pursuing their claim and that could not be said to result in the claims being dealt with in a more convenient manner!

AS View…

This case establishes that equal pay claims which are out of time in the Employment Tribunal can still be raised in the civil courts which have much lengthier time limits. Employers can take some comfort from the fact that raising a claim in the civil courts is much more expensive and, as expenses usually follow success, Claimants could have considerable awards made against them if they are ultimately unsuccessful. This could potentially act as a deterrent against Claimants raising such claims in the civil courts unless they have union backing or legal expenses insurance. It is understood that the Council has applied to appeal the case to the Supreme Court.

For further information please contact Pamela Keys or Barry Nichol.

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.