New employment legislation in 2003   Changes that will affect every employer

Giving references - the pitfalls   

New employment legislation in 2003

The new changes that are being introduced, we are led to believe, are to support the Government’s commitment to create a highly productive, modern and successful workplace. In our opinion what the Government has really done is create extra burdens on the already weighed down employer and instead of helping working parents it may just put employers off employing women of child bearing age.

Some of the new legislation is complex and may require employers to introduce new policies and procedures.

Increase in Compensation

he compensation which may be awarded by Employment Tribunals is reviewed annually. The following limits will be updated in February 2003 and have effect in any case where the appropriate date falls on or after 01 February 2003:

• The limit on amount of compensatory award for unfair dismissal increases from £52,600 to £53,500;
• The maximum week's pay for basic or additional awards of compensation for unfair dismissal and for redundancy payments increases from £250 to £260

New leave rights for parents

Employers will be able to recover the SPP in the same way as SMP. Employers will be able to claim back 92% of the payments they make. Those eligible for small employers’ relief will be able to claim back 100% + an additional amount in compensation. Employers who need to, will be able to claim funding in advance for SPP from the Inland Revenue.

If you would like advice and assistants on this topic please call Lina Hogg on 01473 890037 or e-mail lina.hogg@picassohr.com

Flexible working

Who can request it? An employee who:

• Has 26 weeks continues service at the time of application
• Has a child under 6 or under 18 if the child is disabled
• Makes an application no later than 2 weeks before the child’s 6^th birthday or 18^th if the child is disabled.
• Has or expects to have responsibility for the child’s upbringing.
• Has not made another application in the past 12 months under the right.

What can be requested?

• Change to hours they work
• Change to times
• To work from home
• Job-sharing
• Term-time

What is the procedure?

• The employee must make an application in writing which states
  • How they qualify for this right
  • Exactly the changes they are applying for
  • Date they would like it to become effective
  • The effects on the employer and how they may be catered for.
• The procedure the employer must follow on receiving application
  • Arrange to meet the employee with 28 days to consult on how the request may be accommodated
  • Employee has right to be accompanied by a worker employed by the same employer as the employee
  • Within 14 days of meeting, write to employee stating decision. If not accepted then reasons must be given and right of appeal within 14 days.
  • Further meeting to discuss within 14 days of appeal
  • Final decision with 14 days of meeting.
• If the application is accepted then vary the employees’ contract and the change is considered permanent unless an agreement is made.
• The employer MUST follow the structured procedure in the Act and use facts and sound business grounds as a basis for the decision.
• An employee could claim unfair dismissal and apply to tribunal if the request is rejected and the procedure is not followed.

If you are faced with such a request and would like advice and assistance we would be please to help. Contact Lina Hogg on 01473 890037 or e-mail lina.hogg@picassohr.com

Giving references - the pitfalls

An increase in cases and litigation has turned the legal spotlight on to the issue of references. All employers, irrespective of their size, will be asked to provide references at some time and it is therefore important you think carefully when preparing them. The following case law clearly shows that the reference has to give a true, accurate and fair picture. This is vitally important because the referee also has a duty of care to the receiver of the reference: follow this link for case law and guidance

Batholomew v London Borough of Hackney [1999] as published in the Employment Law Journal June 1999:

Mr Bartholomew was suspended by Hackney because of some alleged financial irregularities. because of this, Mr Bartholomew alleged that there had been racial discrimination and took the council to an employment tribunal. The two parties reached a compromise agreement and it was agreed that Mr Bartholomew would take 'voluntary severance' and that any disciplinary proceedings would be stopped.

Mr Bartholomew was subsequently offered a job with another Council which sought a reference from Hackney.  The reference stated that Mr Bartholomew had taken voluntary severance:

"At the time of his departure Mr Bartholomew was suspended from work due to a charge of gross misconduct, and disciplinary action had commenced. This disciplinary action lapsed automatically on his departure from the authority."

Because of the reference the job offer was withdrawn and Mr Bartholomew brought a case against Hackney alleging that although the reference was correct, it was unfair.

The court of appeal laid down 3 principles concerning references:

• There is a duty on employers to ensure that references are true, accurate and fair in substance.
• However, there is no duty on employers to be "full and comprehensive". This is imposing too high a burden.
• Employers cannot break references down into individual sentences and state that each individual sentence was factually correct. References must be looked at in the whole.

In the Bartholomew case, The Court of Appeal decided Hackney was not in breach of its duty to him and his claim was dismissed.

Employees rights to a reference

An employer is under no obligation to give a reference, except in certain sectors of activity such as the financial services or where there is an express clause in the employee’s contract (or in a settlement agreement) that the employer will do so.

Duty of care

When giving a reference the employer has a duty of care to both the ex-employee and the recipient.

The employer must use reasonable care in preparing the reference, as the information given must be true, accurate and fair. Employers who are ‘economical with the truth’ in references should be wary. Even if everything said is true, if what is left out would change the reference, it could be negligent!

An employer could be excused for thinking that it may be simpler merely to confirm employment details. It is doubtful that one could call this a reference since it contains no assessment of work or character. However, as long as there is no duty to give a reference this should suffice.

Disclosure of references

There is some good news for employers! Generally speaking, employees do not have the right to see a reference about them unless the referee or recipient discloses it to them. Even when the Data Protection Act 1998 grants access to manual personnel files, if a referee gives a reference in confidence for employment, self employment or educational purposes, the employee will not have access to it unless the referee gives permission for its disclosure.

Practical Advice

• Employers should closely monitor the giving of references
• Consider whether you wish or have to provide a reference
• If a reference is given, decide whether simply to confirm employment details or give a full reference including an assessment of work and character
• Decide who can give references, do they have personal knowledge of the employee and do they know about the pitfalls and their responsibilities
• Obtain a second opinion on the content
• Ensure references are true and accurate, fair and reasonable
• Treat all requests for references equally and avoid discrimination; never refuse to provide a reference as an act of retaliation
• Decide on a policy on oral references (which can carry the same weight if challenged but may not be as thought through); the best policy is not to give oral references and consider a disclaimer in any reference to increase your level of protection.

If in doubt get advice, call us on 01473 890037

The information in this newsletter is of a general nature and is not a substitute for professional advice. You are recommended to obtain specific professional advice before you take any action.

For further information, advice or assistance on any of the matters raised in this newsletter please contact Picasso HR on 01473 890037.

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