Welcome to the latest edition of employment law enews. In this issue we look at the Employment Tribunal Regulations 2005; the national minimum wage; "serial job applicants"; flexible working arrangements; unfair dismissal and changes to the rules governing pensions.

New Employment Tribunal Forms

The Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2005 come into force on 1 October 2005. From that date, all applications for and responses to Employment Tribunal claims will have to be made on the prescribed Employment Tribunal forms, ET1 (application) and ET3 (response).

The aim of the new regulations is principally to allow the Employment Tribunal Service to develop and use more sophisticated case management systems (which will require the electronic scanning of forms and correspondence) and whilst any step to improve the efficiency of the system should be welcomed, all those involved should take care to ensure the correct forms are used and that claims or defences don't fall at the first hurdle. The forms are available from the Employment Tribunal service website (www.employmenttribunals.gov.uk)

Increase in National Minimum Wage

On 1 October 2005 the National Minimum Wage Regulations 1999 (Amendment) Regulations 2005 come into force. The Regulations increase the minimum hourly rate of the national minimum wage from £4.85 to £5.05 per hour and the development rate (for workers aged 18 - 21) from £4.10 to £4.25 per hour. The hourly rate for workers aged below 18 who have ceased to be of compulsory school age is unchanged.

Beware Serial Job Applicants who don't even want to Work for you!

In a trend that will alarm employers of all sizes, 'serial applicants' are deliberately trying to exploit the raft of discrimination laws and trip even the most careful recruiters up. Whilst there is an argument to suggest that these may be genuine people wishing to expose discriminatory employers, the reality is that some opportunist individuals are looking to make money out of their very real 'nuisance factor' and that many larger employers may prefer to settle.

The modus operandi of these unscrupulous individuals is simple; submit multiple CVs and applications (in different names), each time changing tiny details as to the applicant's ethnicity, sex, religion, physical attributes or colour, all the while keeping experience, qualifications etc...

All the applicant has to then is wait for the unsuspecting employer to reject one application where the form digresses from the 'norm' but calls another for interview. A couple of without prejudice letters later and the bogus applicant walks away with an out of court settlement and is free to pull the same stunt again and again. Employers beware!

Communications Giant Pays £19,500 after Refusing to Grant Employee Suitable Flexible Working Arrangements

Following action by one of their call centre workers (supported by the Equal Opportunities Commission - "EOC") Telewest has been ordered to pay £19,500 in compensation to a former employee following their refusal to grant her flexible working arrangements. The telecoms company has also agreed to work with the EOC in respect of its flexible working, dignity at work and maternity policies after receiving considerable criticism. The EOC will monitor Telewest over the next two years to ensure that changes are implemented properly.

Deborah Clarke, a Telewest employee for nearly seven years, requested flexible working arrangements six months before she was due to return to work after a period of maternity leave. The Employment Act 2002 give parents and others (such as guardians) who are responsible for looking after children aged under 6 (or under 18 if the child is disabled) and who have worked for their employer for a minimum period of 6 months, the legal right to have requests they make for flexible working arrangements (such as part-time work or work at home) taken seriously by their employers.

However, the communications company continually refused to provide Ms Clarke with suitable working arrangements, demanding that she worked evening and weekend shifts, making it impossible for her to look after her newborn son. Telewest's refusal to listen forced Ms Clarke to resign, resulting in considerable stress and financial hardship for her and her family.

Hidden Dangers

The right to request (and reject) flexible working arrangements may not prevent a female employee claiming sex discrimination if her request for flexi-work is turned down without justification. An employee whose request for flexible working arrangements is rejected may also sometimes have rights under the disability discrimination rules, health & safety at work rules or indeed as a breach of the implied contract terms of trust and confidence between the employer and employee.

Refusal to Sign Unreasonable Restrictive Covenant Not Fair Reason for Dismissal

In the recent case of Forshaw and others v Ashcraft Ltd (2005) the EAT found the Respondent employer to have unfairly dismissed three employees who refused to sign new terms and conditions containing a nationwide restraint of trade clause limiting competition with the employer for 12 months after leaving the company.

The new terms had been offered to the three individuals after Ashcraft learned of their intention to leave and join a rival business. Having refused to sign the new terms the employees were dismissed with no opportunity to appeal given.

The earlier Tribunal found that although the covenant was unduly restrictive, the three had not been unfairly dismissed and rejected their claims, holding that dismissal was within the reasonable range of responses open to the employer in the circumstances.

On appeal, the EAT reversed the earlier decision. In finding that the restraint was invalid as being unduly onerous (far in excess of what was required to protect the legitimate business interest of Ashcraft), the EAT considered it unreasonable to ask the employees to sign such a restriction which purported to impose "an unreasonable fetter on their future trading activities". It was not, they said, up to the employees to come up with any counter-proposal but for Ashcraft to have put forward a reasonable restriction in the first place.

"Signposts to Simplification"

Our associate independent financial advisers, Law Financial Planning Ltd have contributed the following:

The Finance Act 2004 introduced the trumpeted, long needed and long awaited changes to the rules governing pensions. These were the basic guidelines and at the time of writing HM Revenue & Customs has still to publicise the document that will contain detailed tax and technical information.

With time fast disappearing before the deadline of 6th April 2006, it is as well that everyone considers their pension arrangements in the light of the "big picture" - the basic effects of what were eight sets of pension rules being rationalised into one!

We have prepared a summary of points that will help employers and individuals get a feel for the changes, which are comprehensive and wide reaching.

Every individual with a pension should consider whether any action should be taken to either protect their existing benefits or maximise cash before A-Day. The next stage is to plan to improve their benefits post day by maximising contributions to their pension funds, always remembering affordability and the fact that once premiums are paid, the money has effectively been spent, until benefits are taken at retirement!!

Law Financial Planning Ltd is an appointed representative of Berkeley Independent Advisers Ltd which is authorised and regulated by the Financial Services Authority.

This list of points for consideration is available by emailing us at lonemp@steeleslaw.co.uk

This article copyright © 2005 Steeles Law. All rights reserved.