Monthly Archives: April 2009

Swine flu – who pays?

Sick pay

Pandemic or not, people off sick with ‘flu are covered by their normal sick pay rules. Everyone is entitled to statutory sick pay (SSP) but this only applies after three ‘waiting days’ and pays £79.15 a week to anyone earning £95 a week or more.

Employers may contract to pay additional sick pay above SSP, but there is no default entitlement – it depends what the contract says. And there’s usually a time limit on sick pay, so an individual’s sick pay will depend not only on the sick pay scheme, but on how much sick pay they have already had.

Medical certificates

There is no need for anyone to visit their GP to get a medical certificate for the first week of absence. Individuals can ‘self certify’ for SSP for the first week, and most employer ‘top-up’ schemes follow that pattern. Individuals who are off more than one week will need a medical certificate to keep claiming SSP. They should phone their GP surgery to find out how to get one. Usually it is necessary to be seen by a GP but if there is a real outbreak of mass ‘flu, there may be some temporary change of rules. This would certainly help free up GPs. Let’s hope someone has the sense to do this if needed.

Family commitments

If schools are shut, then parents may be eligible for unpaid “dependants leave” in order to arrange care for the children. If the children get flu this will also apply. This is normally a brief period of unpaid emergency leave – say up to 48 hours. “Dependants leave” applies equally to elderly or other relatives, or members of the household dependant on an individual for care. The time off is to arrange care – there’s no general legal right to time off to look after a relative or dependant.

And there is no general legal right to be paid for any of this time. Some employers may agree for annual leave to be used. Others may agree for time to be made up later, but they are not obliged to.

Workplace closed by employer

Anyone working in schools or hospitals is covered by national and local agreements that deal with what to do if the workplace is closed.

If the contract provides for flexible working, annual hours, or homeworking, then these provisions will normally apply if the workplace closes.

For ordinary workers on standard contracts, a lot depends on whether the employer has the right to make unpaid layoffs (sending the worker home without pay). If the contract itself does not expressly say that the employer may lay off without pay, then ordinarily any layoff would have to be paid.

In an unpaid layoff, the employee is still entitled to statutory “guarantee pay”, paid by the employer. For this, a “layoff” is a day when less than 50% of ordinary work was provided. For the first five days layoff in any 3 month period, employees are entitled to 50% of their normal basic pay subject to a maximum of £21.50 per day.

If the government orders a general closure of workplaces, it may be that contracts are ‘frustrated’ by a supervening event. Technically this may mean that there is no obligation on employers to pay during the period of ‘frustration’. Frustration is a technical legal term, and does not simply mean “feeling upset”. We will revisit this, if necessary, in a later blog.

Disabled or vulnerable workers

If an individual has a medical condition that make them more vulnerable to ‘flu, they may be advised by their GP to avoid public places. This may affect them getting to work, or being at work. If the individual is disabled within the meaning of the Disability Discrimination Act (DDA), then the employer will need to consider making “reasonable adjustments” to their duties to take account of their condition. The DDA normally deals with long term adjustments, rather than short term ones. But it would be wise to make appropriate adjustments – for example, if you could arrange for people to work effectively from home, it would be silly not to do so. Similarly if a pregnant woman is advised to avoid the workplace, you should make appropriate adjustments to her duties.

But adjustments should be based on qualified medical advice, not simply on an employee’s self-diagnosis of some particular threat.

Too nervous to come in

Employees who are frightened may decide not to attend work to reduce their risk of infection. If they are not ill (or a vulnerable worker) they are not entitled to be paid or to claim statutory sick pay.

Health and Safety

Employers may have their own health and safety plans for ‘flu pandemics. These would normally include:

  1. Reducing business travel
  2. Reducing face to face meetings
  3. Reducing attendance at work/commuting by using alternative technology
  4. Encouraging workers to take time off as soon as any symptoms showed, rather than struggle in and infect their co-workers
  5. Encouraging home working where possible.

We are happy to deal with queries on this subject by email: or via twitter or put questions on our blog in the comments section.






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Filed under contract, swine flu,

Imaginary man would have been treated same way?

A simple (if not entirely accurate) way of looking at sex discrimination claims could be summarised as:

  1. was there a detriment?
  2. is there a comparator (real or hypothetical)?
  3. is there a non gender related explanation for the difference (if any)
  4. if there is a comparator and a difference and no explanation then the tribunal may infer discrimination.

An infinite amount of time and money has been spent litigating over who or what is an appropriate comparator (whether real or hypothetical) and what is a detriment.

In the recent case of Marriott Motor Group and Ors v Cottingdon the Employment Appeal Tribunal (EAT)considered when this inference might be drawn and decided the tribunal had not made the necessary primary findings of fact (eg what they believe happened) and their inference of discrimination was premature.

EAT also decided an imaginary man in the same situation might have been treated the same way.

It is not enough for a woman to say this is happening because I am a woman – she must assert a specific comparator – real or hypothetical that is appropriate. However employers who fail to provide an explanation for different treatment remain at risk of the ‘inference test’.

There is a big difference between asserting something – this is my explanation – and proving it – here are the records of what happened before.  No-one should walk into tribunal thinking all they have to do is talk and all will be well.


Filed under discrimination, employment tribunal,

TUPE may not apply to multiple contractors

Employment Appeal Tribunal has decided that where there are multiple contractors replacing a single one, TUPE may not apply. (Clearsprings Management Ltd v Anskers and Ors).

There are contractors who took on contracts on a TUPE basis accepting full liability for staff, who run the risk of being unable to pass that liability on at the end of that contract.

At the moment this seems to be a particular feature of contracting with the Government as a client! We are aware of many organisations who were required to take in staff with full service in order to get the contract in the first place, who will now retain the liability when the contract changes hands.

This will undoubtedly spread to the private sector and will cause further pressure on businesses trying to survive by contracting with the government.

We have been aware of this trend in case-law for some time and have come up with some strategies to limit the effect of this in certain circumstances.   Contact, tel: 08452 303050 fax: 08452 303060

If your contracts are up for review/renewal or if you are pitching for service contacts that could potentially be split among rival suppliers at another date, you should take urgent steps to make sure you have a plan to handle this.   If you want help modelling your pitch or considering the options on the staff side we can work alongside you, even at a fixed fee.

See our previous blog

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Doing a tribunal for yourself? 10 questions people ask:

More people than ever a going to an employment tribunal to represent themselves or their organisation.  It can be scary and the language used by the tribunal doesn’t always make much sense if you’re not used to it.   Here are  the top 1o questions people ask us:

  1. Man holding umberella to stop paperwork flooding him like rainI don’t have any witnesses so I don’t need to exchange witness statements. Wrong, even if you are going on your own, the chances are you are a witness in your own case and you need to prepare a witness statement and exchange it with the other side.
  2. The side with the most witnesses usually wins.  It is not a numbers game and unnecessary witnesses don’t help.
  3. There aren’t any documents relevant to my case .  Often we find there are helpful documents that you haven’t thought of.
  4. Deadlines don’t apply to me .  If you don’t comply with the deadlines set by the tribunal you can find yourself at risk of costs or not being allowed to use the stuff you sent in late
  5. Tribunals are biased against small employers/claimants in person – not true, but they won’t find in your favour if you don’t present your case properly – they are there to judge the issue not to represent you.
  6. I don’t need any form of representation.  A good briefing on what to do may be all you need.
  7. I am dreading cross examination. What will they ask me? What will I say? A good run through can take the edge off your nerves and help you understand the process. It is a good idea to prepare for what you are going to ask as well.
  8. I am not a lawyer – what do I have to do about the law? We can help you look at your case from a legal point of view and check you are covering the bases
  9. I have been asked to produce a schedule of loss – what is that? If you don’t know how to calculate what’s at stake in tribunal it can take ages and you can get it wrong.  If you are not bringing an equality claim then it is all about financial loss .
  10. What is an agreed document bundle? If you are told to agree a document bundle you are being asked to agree the documents in it are true and to produce on bundle of your documents and your opponents with numbering for the pages and an index. Do not agree documents that you dispute – put them in another bundle!  Or tell the other side it is a combined document bundle but you dispute some of the documents.

We support people by phone, email, skype, google hangout, etc.  Helping behind the scenes to deal with the tricky bits, understand the process and get the best out of your case. 

Check our free download on how to keep your tribunal fees low.

For more information contact for a range of fixed fee or flexible fee options for DIY tribunal representatives.


Filed under employment tribunal, free stuff

Calls for TUPE law reforms

The backlog of tribunal cases on the 2006 TUPE provisions are being decided and triggering calls for a reform to the regulations

Service providers seem blissfully unaware that they inherit their rivals’ staff when successfully competing for a contract and many have made no plans whatsoever for how to deal with this.

From cleaning contractors to PR companies to solicitors and IT contractors – everyone has a tale to tell. This week we have heard on our own hotline of:

  • total strangers to the new management turning up for work and expecting to be paid
  • a year after a TUPE transfer a woman turning up expecting to return from maternity leave
  • mass unfair dismissals being triggered by pay cuts

However, lobbying for a change in the law is not likely to solve the problem. The TUPE regulations stem from Europe and the UK parliament does not have the power to get us out of this.

Campaigning for an end to TUPE is as likely to succeed as campaigning for an end to PAYE.

More practically it makes sense to plan not to make a mess of this. We have been working with employers large and small since TUPE was first invented, making TUPE work for them. If you want to find out how to make TUPE work for you contact us., tel: 08452 303050 fax: 08452 303060

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City women earn 60% less than men

The latest figures on equal pay and promotion in the City of London show large gaps in the earnings between men and women and a glass ceiling.

If City women were as Unionised (and as prone to take tribunal claims) as they counter parts in local government and the NHS then the City would be awash with claims.

This would undoubtedly add to the City’s woes and increase the pace of off shoring. Should employers cut the wages of higher paid men? This would produce equality and economy all round. Whilst this will produce resentment and even hardship for some individuals, it may rebase the City for when an upturn comes.

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Challenge to NHS equal pay system rejected

The continuing saga of the government’s difficulty with equal pay reached an interesting moment today when a Newcastle tribunal rejected the Union’s challenges to the Agenda for Change job evaluation system. Implemented at great expense the system was designed to reduce uncertainty and equal pay problems.

The tribunal decision is not binding on other cases, but it was agreed this would be at test case. Interestingly enough the ‘red circling’ a common technique where higher paid employees’ packages are frozen to allow their colleagues to catch up over time was unsuccessfully challenged. This means that men who are overpaid under the current system can continue to retain their benefits at least for the meantime.

Historically many equal pay problems were ‘solved’ by freezing the higher paid workers pay and allowing inflation and salary increases to eliminate the difference over time. In these days of low increases and even deflation it is interesting to consider whether the new approach might be to give notice to terminate the existing higher paid contracts on the grounds that they are unlawful in terms of equal pay and offer lower paid, non discriminatory ones all round.

No doubt this is the last thing that any individual worker would want to be on the receiving end of!.   Yet it appears many local authorities will be taking such steps as they work through the massive backlog of equal pay claims

What a tangled web we are weaving. Millions spent, pay differentials as they were and no closer to a resolution.

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Filed under equal pay