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So, where’s “mutual agreement” on this pension form?

Pensions and Employment speak different languages and as an employer it’s important to have a team working for you that understands both.

A recent example arose in the Pensions Ombudsman case of Mr. O (PO-7782).

Mr O worked for a local authority. Following an outsourcing and TUPE he was transferred to Capita Secure Information Solutions Limited. Unsurprisingly, Capita had some cost-cutting targets to meet and notified the Service Desk staff to say that there might need to be staffing reductions.

The staff in question were members of the Local Government Pension Scheme. This provides expensive-to-fund unreduced pension benefits where a member who is 55 or over:

• is made redundant;
• is dismissed on grounds of business efficiency; or
• leaves by mutual consent on grounds of business efficiency.

As Mr O was on sick leave at the time he agreed to a compromise agreement with a £25k payment in exchange for leaving his employment. In his case a pensions top-up would have cost Capita an extra £50k.

Capita had to fill in a form saying what the reason for Mr O’s departure was. This caused issues. Capita tried to say it was by “mutual agreement” but the relevant LGPS form didn’t have that as an option.

It then tried “redundancy” but realised this was an error (and would have triggered the pension benefits). It then ran with “resignation”. The Ombudsman looked at the facts, ran them against the only options available on the form and ordered Capita to resubmit it with “mutual consent on grounds of business efficiency” as the reason. Mr O got his unreduced pension costing Capita £50k and his £25k as well.

There’s always more to these things, but the key thing for this blog entry is to make sure you’re clear on what your pension scheme provides on leaving service. If you have any early retirement/redundancy provisions, they could leave you with an unexpected and very unwelcome bill even if you’ve got all your employment ducks in a row.

So, where’s “mutual agreement” on this pension form?

Keeping up with the Germans?

The Women and Equalities Committee has demanded that the government publish a detailed plan to tackle the issue of pregnant women and mothers being forced out of work by employers’ outdated attitudes.

Pregnancy and maternity discrimination is often covert and regularly disguised as redundancy. It can be gradual and intensifying, or much more sudden (usually almost immediately following disclosure of pregnancy or return to work). Sometimes employers choose to discriminate by omission, perhaps failing to address health and safety concerns they would previously have been proactive about. The covert nature of this discrimination can make it more difficult for a mother to evidence the poor treatment and feel that her only choice is to leave her role. Research by the Department for Business Innovation and Skills and the Equality and Human Rights Commission suggests that pregnant women and mothers now face more discrimination than they did a decade ago.

In Germany, women and expectant mothers can only be made redundant in specified circumstances. The protection applies from the beginning of pregnancy until four months after childbirth. Dismissals will only be approved (by the state) in rare cases such as gross misconduct by the worker or the employer getting into severe financial difficulties. Increased protection from redundancy is just one of the recommendations the Committee has put forward in the UK for consideration by the government. They have cited the German system as a positive example. It is not to say that any changes would precisely mirror the German system, but would keep the UK in line with its peers. Other recommendations include:

  • potentially extending the three-month time limit for bringing a claim in pregnancy and maternity discrimination cases;
  • substantially reducing tribunal fees for discrimination cases;
  • extending maternity-related rights to casual, agency and zero hours workers;
  • an easily accessible and formal mechanism to compel employers to deal with concerns that a mother’s or baby’s health is being put at risk by their work; and
  • the Health and Safety Executive requiring employers to undertake individual risk assessments when they are informed that a women who works for them is pregnant, has given birth in the past six months, or is breastfeeding.
  • Theresa May has promised a bold, new positive role for the UK in the world. However, this is just one example whereby it remains helpful to understand how our neighbours are working to achieve best practice in common areas. No doubt the government will want to liaise with key interest groups in the UK before formalising any proposals.
Keeping up with the Germans?

Insight: UK Employment Law Round-up – June 2016

In this issue we look into the implications of misusing data in the employment context. In particular, we utline recent ICO prosecutions of employees for unlawfully obtaining data. We also look at a decision involving interim relief and an order for the deletion of data.

UK Employment Law Round-up – June 2016In our case law review we also analyse the Advocate General’s view on a ban on wearing a headscarf at work and whether that is discriminatory under the European Directive.

For those concerned about issues involving working time, there is a helpful clarification about injury to feelings awards in the context of Working Time Regulations claims.

There are also some indications of future legislative changes in relation to the National Minimum Wage and increasing the representation of black and minority ethnic workers in the workplace.

Read the full newsletter here.

Insight: UK Employment Law Round-up – June 2016

The Great Brexit Debate: Protection for UK Workers

We are, of course, coming increasingly close to 23 June – the date of the referendum on the UK’s continued membership of the European Union. Several employers have already made their views known on “Brexit” (as it seems now to be labelled) in national newspapers. Just last week the Chief Executive of Airbus took the unusual step of writing to the company’s 15,000 UK employees expressing his view that leaving the EU would impact on international investment in the UK and put jobs at risk.

The TUC published its assessment of the potential impact of a “Brexit” on employment law in the UK (prepared by Michael Ford QC). Unsurprisingly, the TUC appears to be opposed to the UK’s exit from the EU because of the potential (perhaps likely) dilution of employment rights in the UK.  It considers that the areas most likely to be subject to change in the future are the laws relating to: collective consultation; working time; TUPE; the Agency Workers Regulations; and some elements of discrimination legislation, particularly uncapped compensation and age discrimination.  Michael Ford QC also points out that the protection of pregnant workers in the UK is derived from EU law.

These are some of the areas that place the greatest burdens on employers in terms of dealing with their workforce and so some dilution (or removal) of these rights may come as welcome news to some employers. However, these protections are seen by many as important and fundamental employment safeguards.  If there were no obligations to collectively consult then the 15,000 individuals employed by Tata Steel in the UK might be left without jobs on the closure of its sites with very little notice and limited compensation to reflect that.  If there were no protection under TUPE, at least some of them would be likely to lose their jobs even if a buyer was found.  A recent survey carried out by the BBC found that 31 % of employees in the UK feel that they have been discriminated against at work on the grounds of their age (be they young or old), and as many of 77 % of women reported negative experiences at work related to their pregnancy or maternity according to research released by BIS and the EHRC last month.

For our comment on the impact of “Brexit” on UK employment law, please see here.

The Great Brexit Debate: Protection for UK Workers

Insight: UK Employment Law Round-up – January 2016

UK Employment Newsletter 3DCover In this edition we will be taking a look at the issues that are likely to be affecting employers in 2016, starting with a round-up of the cases to watch out for which will affect redundancy consultation processes, the extent of whistleblower protections and what might be expected of data controllers when complying with subject access requests. There are, of course, many other cases coming before the appellate courts this year which will shape the ever-changing employment law landscape in 2016.

Read the full newsletter here.

Insight: UK Employment Law Round-up – January 2016