HR Expert, David Thompson, has joined Silverman Sherliker to head up Silverman Sherliker Specialist HR Services, a dedicated HR Specialist service

The service will provide front-line HR advice and resources to complement the legal services offered by the firm’s extremely busy employment team.  
 

Innovative Client Benefit

Senior Employment Partner, Nicholas Lakeland, explains how this innovative step will benefit clients:

“Silverman Sherliker can now provide an integrated and complete HR Service thus assisting clients with practical advice and on site assistance whilst also being able to offer Employment Law advice as and when required. Our HR consultants are available to undertake regular weekly or monthly first-line human resources support on a retained basis or to deal with on one-off projects as may be required.    The services are flexible and can readily be tailored tosuit a client’s requirements.”

A Wealth of Experience

During his 23 years HR career with Barclays Bank, Dave Thompson has acquired a wealth of hands-on HR experience in successfully dealing with contentious and non-contentious HR-related issues.  Dave progressed through the branch network to Operations Management where he quickly gained a reputation as an effective troubleshooter, turning negative situations around through a combination of re-motivating employees and bringing good disciplines to the workplace. From the London Regional HR team, he progressed to Employee Relations Manager in Barclays’ Head Office and also spent two years as a Project Manager for Employee Development and was responsible for implementing Recruitment & Assessment Centres. 

Dave explains the service that he now heads up at Silverman Sherliker Specialist HR Services :

“I am excited to be offering a seamless professional service to businesses of all sizes, backed by Silverman Sherliker’s legal expertise.  We offer a standard HR package to small, medium and larger employers.  Our range of services includes:
 
·        Absence Management
·        Guidance on issues involving incoming employment legislation
·        Assessment & Development Centres 
·        Avoiding Employment Tribunal Claims 
·        Disciplinary & Grievance procedures
·        Employee Attitude Surveys & Employee Relations
·        Managing line managers and personnel to improve attendance
·        Organisational, Employee and Management Development 
·        Record Keeping/Monitoring
·        Psychometric testing, CV and  reference verification  
·        Restructuring and Redundancy
·        Salary Reviews
·        Terms & Conditions of Employment
·        Training Team Leaders on employment related issues.”
 
For further information please contact Dave Thompson on dt@s2hr.co.uk  or Nicholas Lakeland on ncjl@s2hr.co.uk  or call +44 (0)20 7749 2700

Volcano alert!

All hands to the pump!

etc, etc ……but can travel businesses suddenly ask their staff to work around the clock to cope with the huge upsurge in business?

As the ash clouds from the Icelandic volcano slowly disperse, the rail, road and sea ferry industries have been working at full steam (pun intended) to take advantage of the extra business. This means that employees are suddenly being asked to work greatly extended hours with inevitable legal implications under current employment law.

If employees are asked to work in excess of their contracted hours, they can simply refuse to do so, and their employer can’t do much about it. Changing contract terms without employee consent could entitle employees to resign and claim constructive unfair dismissal or wrongful dismissal for breach of contract.

Offering impromptu financial incentives, such as overtime and bonus payments, is the immediate and obvious practical way to get employee ‘buy-in’ to consent to the increased working hours. However, with some forward planning, it is possible for employers to include contractual provisions to cover a sudden, unexpected requirement for extra work in the future.

For employees who are asked to work more than the average 48-hour week and who have not already opted out of the Working Time Regulations, employers must keep careful records to be able to calculate just how may hours are being worked. As the average for the Working Time Regulations is calculated over a 17-week period (and can be argued to be over a 26 week period in this special situation), employers are unlikely to be caught for claims on account of breaching the Regulations by the current volcano situation but may still be required to produce their records in such circumstances.

Again, forward planning may include asking employees to opt out of the Regulations at some point in the future but they cannot be obliged to do so.

Employers must also be mindful of Health and Safety implications for over-worked employees and must ensure that, regardless of the over-time worked, employees are afforded all statutory rest breaks including the minimum provided in their existing contract of employment which, for most employees, must not be less than 20 minutes rest every 6 hours, 11 hours rest in every 24 hour period, and either 24 hours rest each week or 48 hours rest each fortnight. As breaches of health and safety laws can result in personal criminal liability for employers it is vital that, despite the extra hours required, employee’s health and safety is never put at risk.

What about the legal position of employers whose staff are stuck sunning themselves in the Canaries and are unable to get to work?

Employers who deduct pay or insist the time is taken as extra holiday, may receive claims for unlawful deductions from wages.

Employers must try to avoid using their discretion or making decisions on a case-by-case basis as claims may arise for indirect discrimination if decisions are arbitrary or applied inconsistently.

Employers therefore should ensure that they use reasonable and clear communication with those employees burning the midnight oil and those in far off lands buying extra tanning oil.

It may be a good time to consider updating employment contracts generally, to have provisions in place for such situations, not least because the unpronounceable Icelandic volcano isn’t finished yet ….. but then we would say that wouldn’t we.

by Victoria Russell, Employment Law Solicitor

Not anymore. Yesterday, Sir Michael Burton made a ground-breaking ruling in the UK Employment Tribunal that the claimant’s “green beliefs” deserved as much protection in the workplace as that accorded to religious views. 

But when does a belief become ‘a philosophical belief’ of the kind that may give rise to a discrimination claim?

Nick Lakeland was interviewed live recently on Candian Radio(the Dave Rutherford Show) and you can hear the entire interview  here.

Tim Nicholson claimed that he was unfairly made redundant from his position as Head of Sustainability at Grainger (apparently the UK’s largest residential landlord) and that he was discriminated against because of his beliefs about man-made climate change.

There seems little doubt that Mr Nicholson’s views were strong and sincerely held. He had changed his own life-style to fit his “green beliefs” by no longer travelling by air and also by making his home eco-friendly. He had lodged complaints about his employer flying an employee to Ireland and back just to pick up his BlackBerry that he had forgotten on a business trip and claimed that the firm had failed to execute its documented Green policies. On this basis, he alleged that he had been discriminated against unfairly.

Sir Michael Burton ruled that: “If a person can establish he holds a philosophical belief based on science as opposed, for example, religion, then there is no reason to disqualify it from protection.”

He went on to say that, “a belief in man-made climate change, and the alleged resulting moral imperatives, is capable, if genuinely held, of being a philosophical belief for the purpose of the Employment Equality(Religion or Belief) Regulations 2003.”

Throughout the case  Grainger maintained its position that Mr Nicholson was fired because of “operation needs during a period of extraordinary market turbulence.”

This ruling is bound to encourage many more discrimination claims by employees who feel that they have been treated unfairly because of their ‘philosophical beliefs’. 

What is next one might ask? Protection for vegetarians, re-cycling fanatics, social networkers, conspiracy theorists, flat-earthers…perhaps even Jedi knights?

There is no financial limit to a compensation claim for discrimination on grounds of philosophical beliefs….Employers be warned!

This is a non-exhaustive 50 point checklist designed to help you avoid some very common legal pitfalls and maximise the legal security of your business.

1. Make sure that legal ownership assets used in the business are actually owned by the business.
2. Get written copyright assignments from designers, authors, software and web developers and appropriate warranties of originality.
3. Check the terms and conditions of third party suppliers of services to ensure you legally own any deliverables they create.
4. Do not rely on a terminable licence for key business assets; take an assignment or a perpetual royalty-free licence.
5. Always negotiate when taking or granting a licence (term, option to renew, notice period, warranties, conditions etc).
6. Make sure new shareholders assign the assets that they are bringing to the party to the business as a condition of the issue of their shares.
7. Check every name, trademark, slogan and design you use to ensure it does not infringe any third-party rights.
8. Do not use a name, slogan or logo without filing a registered trademark application.
9. Check the patentability of your inventions before disclosure or marketing.
10. Patent your novel inventions if patentable.
11. Register your designs as UK or EU Registered Designs.
12. Insist on non-disclosure agreements as prelude to deal negotiations.
13. When buying, consider milestone payments and a retention.
14. When buying, obtain contractual warranties and indemnities from sellers.
15. When buying, carry out as much due diligence as is possible.
16. When selling, get deferred payments guaranteed or secured.
17. Agree terms of ’soft’ loan capital up-front to avoid sudden repayment demands by investors.
18. Consider weighted voting rights for business founders who go below 50%.
19. Ensure shareholders, employees and consultants agree non-compete obligations.
20. Ensure post-termination non-competes are reasonable and enforceable.
21. Protect customer-base and goodwill by including non-solicitation obligations in employee contracts.
22. Protect investment in staff by including non-poaching obligations in employee contracts.
23. Impose strict confidentiality obligations on people involved in the business.
24. Ensure confidentiality obligations continue after termination of involvement.
25. Draw up an appropriate Shareholders Agreement for multiple shareholders.
26. Consider list of ‘reserved issues’ requiring unanimous shareholder consent to implement.
27. Do business under your own clearly-drafted standard terms and conditions of business.
28. Bring your terms and conditions to the attention of customers before they commit to buy.
29. Make share ownership by partners and staff subject to performance criteria.
30. Provide that employee shares vest over a reasonable period of time.
31. Make employee shares subject to sell-back obligation if they leave for any reason.
32. Provide a procedure for the fair valuation of shares of leaving employee.
33. Encourage employee loyalty by providing for nil value on share buy-back in first 2-3 years.
34. Consider discounted (or nil) value for shareholder employees dismissed for breach or wrongdoing.
35. Control the ability to sell the business by imposing ‘drag-along’ terms on minority shareholders.
36. Consider share purchase assurance to buy back shares of deceased shareholder from the estate.
37. Consider a contractual dispute resolution procedure to avoid dead-lock or formal proceedings.
38. Build business value by obtaining written contracts with customers and clients.
39. Consider minimum term commitments from customers and clients and long notice period.
40. Register under the Data Protection Act if applicable.
41. Negotiate favourable written agreements with all suppliers.
42. In supplier contracts, seek exclusivity, initial minimum term, renewal rights and long notice period.
43. When granting exclusivity ensure minimum performance criteria as a condition of such exclusivity.
44. Consider legal expenses insurance and After the Event Insurance when engaging in legal proceedings.
45. Ensure your business operates within its industry standards and applicable statutory framework.
46. Agree an appropriate Grievance and Disciplinary Procedure and stick to it.
47. Do not terminate any contract of employment without taking legal advice.
48. Never rely on a calculation or valuation carried out by accountants that are being instructed or paid by someone else.
49. Always seek a personal guarantee of payment or performance from principals of an SME business.
50. When dealing with a group of companies, seek guarantee of payment or performance by holding company.

              …..and never give anyone a signed, blank cheque.

 Email to discuss any of this: cjs@silvermansherliker.co.uk

As of Monday, injured feelings will cost UK employers a lot more!

Employees who are unfairly dismissed, particularly in discrimination cases, often get an ‘injury to feelings’ award.

The case establishing the principle was the well-known 2005 case of Vento -v- Chief Constable of West Yorkshire Police.

There has been considerable debate since 2005 as to whether an ‘injury to feeling’ award should be index-linked to allow for inflation. Employment Lawyers have assumed they should be and their views have been confirmed in the Employment Appeal Tribunal case of Da’Bell -v- NSPCC which has just been decided in past 2 days.

The compensation bands for ‘injury to feelings’ award are now :

• lower band:     £ 6,000
• middle band:  £ 18,000
• upper band:    £ 30,000

So employers should be very careful not to upset anyone.

Conversely, if you do get fired…..make sure you are really upset about it!

This developmentshas significant ramifications, not just for those currently fighting tribunal claims but also for those who are advising on compromise agreements where an element of compensation is being ascribed to injury to feelings.

Clearly there is now a lot more to fight for!

As this judgment has been handed down, it has immediate effect despite the transcript not yet being available.

Employers should beware.

The compromise agreements they are currently handing out like confetti to departing employees may well not be valid, particularly if the Employee has not had proper independent legal advice.

Compromise agreements are part of everyday life for Employers in this era of mass redundancies because getting the Employee to sign one means that the termination payment is accepted in full and final settlement and the Employer cannot be sued later. In this sense they are there to protect the Employer.

However, one of the key requirements for a valid compromise agreement is that the Employee gets proper, independent legal advice from an independent solicitor. Section 203 of  The Employment Rights Act 1996 is quite specific. The compromise agreement must identify the independent adviser. The Employee must have received legal advice from a relevant independent adviser on the effect of the compromise agreement and the independent adviser must have a current contract of professional indemnity insurance, covering the risk of a claim against them by the Employee in respect of the advice. Further, the lawyer must certify that his firm is not acting for the Employer. So the statute is pretty clear and the independence of the Employee’s solicitor is a key factor in deciding whether the compromise agreement is valid.   In addition, no law firm should ever accept instructions if that would result in a conflict of interest.

What if the Employer ‘recommends’ the solicitor to which the Employee should go for advice on the compromise agreement or agrees only to pay the legal costs if the Employee uses that particular firm? What if that firm gets a constant stream of instructions on compromise agreements from the same Employer and is paid between £350 to £950 each time? Do you think that firm can be regarded as ‘independent’? Do you think that might give rise to a conflict of interest?

It is not surprising that such ‘recommended’ firms may well, in these circumstances, be reluctant to negotiate on the Employees behalf and are far too ready to accept that the first offer is the best offer available. They may be too keen to breeze through the compromise agreement or explain it in very general terms and seem keen to get Employees in and out through the door as quickly as possible.

Employers should therefore be very wary of providing Employees with a recommeded firm. At the very least the Employer should provide the Employee with a list of firms that can advise on comprmise agreements and the list should be a long list. We would suggest there should be at least 10 firms on the recommended list. The Employer should not say that they will only pay for the legal advice if given by either one or two named law firms and the Employee should always be told that they are free to take advice from any firm of their choosing. The practice of ‘bulk advice’ being given to departing Employees at the Employers premises on an appointed day is also likely to call into question whether the employee has truly been given independent legal advice as the law requires.

Employers should monitor how dependent one particular firm may become on the income generated by referred compromise agreements. This is particularly important for large Employers, where one law firm is used regularly and is earning substantial fees. Any law firm advising on a compromise agreement ultimately needs to be free to recommend that the Employee sue their Employer. If a law firm is regularly in receipt of a substantial fee income from that Employer they may well be reluctant to “rock the boat” by recommending further negotiations or litigation.

If the Employer tries too hard to control the manner in which the Employee receives independent advice, the compromise agreements may well be totally unenforceable and the Employer may find himself embroiled in litigation that he sought so hard to avoid.

For truly independent advice on compromise agreements visit Independent Advice on Your Compromise Agreement …..and always make sure that independent means just that.