Morgan Denton Jones

Events coming up over the summer

2010-04-20T09:11:00.004+01:00

Parental rights and the rights of carers - a refresher Masterclass - Thursday 27th May 2010

Data Protection in the HR context - Thursday 1st July 2010

Please contact pa@mdjlaw.co.uk for more information and to book - spaces are filling up very quickly.

April 2010 updates

2010-04-20T09:06:00.002+01:00

Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoptive Pay have all increased from £123.06 a week to £124.88 but Statutory Sick Pay stays the same at £79.15 a week.

HR in Challenging Times

2009-09-28T10:38:00.003+01:00

Morgan Denton Jones are proud to be one of the sponsors of this conference being organised by the South East Wales Branch of the Chartered Institute for Personnel Development. This conference is taking place on Friday 23rd October 2009 at the Business Centre, University of Glamorgan, Treforest and will take place between 9.30 am and 4.30 pm.

For further information please contact adenton@mdjlaw.co.uk

Wednesday 23 September

2009-09-28T10:35:00.003+01:00

Anna Denton-Jones spoke at an event organised by Bridgend County Borough Council as part of their programme of events supporting local businesses. Over 35 attendees from medium and large organisations attended to hear Anna speak, alongside Lesley-Anne Beale of Development Works HRDA HR Training and Management Devlopment Consultancy. As ever, delegates had plenty of stories to share regarding the difficulties they face managing absence. The session focussed on the tools employers can use in this regard.

Tuesday 22 September - Revitalise your Business Event

2009-09-28T10:29:00.003+01:00

Anna Denton-Jones was invited to speak at this well attended conference held in Barry, Vale of Glamorgan, as a result of work she had done with the Vale Business Club and was organised bt the local Council to provide business support to businesses in this difficult climate. Anna's session was entitled 'Managing the Difficult Employee' and led to a lively debate, including members of the audience who felt that employees who failed to disclose medical conditions to their employer, when they commenced employment should not be able to bring claims against the employer in the future. We had a discussion regarding the recent Court case law affecting Cheltenham Council and their failure to recover costs against a former employee who suffered from depression, in such circumstances.

Do I have to pay holiday pay for those who are off sick?

2009-08-05T14:36:00.001+01:00

After many years of uncertainty, a recent ruling by the House of Lords in a case which became known as Stringer and others v HM Revenue and Customs, makes the answer to this question clearer. Firstly, annual leave continues to accrue during sick leave, so someone who is on long-term sick and has run out of sick pay, continues to clock up holiday entitlement and if their employment is ended they will be entitled to payment in lieu of that “pot” of holiday that has built up. It also means they can take holiday (at the same time they are off sick) in order to be paid for it.

What is not clear is what happens for those who don’t take or try to take the holiday - do they lose it or is the employer risking a claim? The practical answer is that until the case law resolves this you should ensure you make people take their holidays to stop a “pot” building up.

We would be happy to review your current practice for you. Please do not hesitate to contact Anna Denton-Jones on 029 20 537742 or adenton@mdjlaw.co.uk.Morgan Denton Jones LLP

Summary of forthcoming changes in the law

2009-02-23T12:09:00.004Z

Reminder – rates changed on 1st February 2009

Maximum Basic Award for Unfair dismissal/Statutory Redundancy Payment £10,500

Cap on a Week’s pay £350

Maximum Compensatory Award for Unfair Dismissal £66,200

• 1st April 2009

Increase in entitlement to statutory leave under the Working Time Regulations 1998 from 4.8 weeks (24 days) for a full-time employee to 5.6 weeks (28 days).

• 6th April 2009

Employment Act 2008 – repeal of the statutory minimum procedures and change of Tribunal Procedures including allowing an Employment Judge to hear more cases on his or her own (without the panel of 3 that normally hears cases).

Revised ACAS Code of Practice on discipline and grievance.

The Government has indicated that the change in the flexible working legislation to extend rights to those parents with children under 16 will come into force at this time.

Statutory Sick Pay increases to £79.15.

• 1st October 2009

Change in National Minimum Wage – no rates announced yet.

Changes to laws governing employment agencies are timetabled for October – the consultation on this is still ongoing. Likely date for legislation on extending agency workers rights compared to permanent staff.

Likely date for the Equality Act? It will consolidate existing legislation, outlaw pay secrecy clauses, give tribunals dealing with discrimination claims the ability to make recommendations which apply to the whole workforce and not just to the successful claimant, create a single public sector equality duty and enable employers to take positive action when selecting between two equally qualified candidates.

• 2010

Likely introduction of the increases in paternity leave under the Work and Families Act 2006.

• 2012

Employers forced to enrol employees into pension schemes.

Future Events - Disciplinary Situations & Grievances 3rd March 2009

2009-02-20T16:18:00.002Z

Due to the success of our Masterclass events and feedback from our clients ,we are offering an informal session on Disciplinary Situations & Grievances on 3rd March 2009.

For more information or to make a booking please email us at info@mdjlaw.co.uk

Caerphilly HR Network - 5th February 2009

2009-02-20T16:09:00.002Z

Many delegates braved the snow to attend the Caerphilly HR Network organised by John Edney of Caerphilly County Borough Council.

Attendees had an informative discussion with representatives of Careers Wales regading the ReAct Funding Programme, before considering with Anna Denton-Jones a number of issues that employers must consider when making redundancies.

For more information about Caerphilly HR Network events please email John Edney on edneyj@caerphilly.gov.uk

Marble Event - Managing Redundancy

2009-02-20T15:55:00.004Z

Over twenty five people attended this seminar which included discussions about how to make communcations to staff regarding redundancy proposals more effective. How to execute a redundancy exercise including a debate over which selection criteria should be used these days.

Mark Morgan conducted one of his famous quizzes. Congratulations to the winner Jane Thomas of Bar and Restaurant Foods Limited who almost scored full marks!!

For further information about future events organised by Marble Recruitment please email paul@marblerecruitment.co.uk

Employment Law Firm Keeps Growing

2008-11-26T09:31:00.000Z

http://www.walesonline.co.uk/business-in-wales/business-news/2008/11/26/employment-law-firm-keeps-growing-91466-22340165

Coleg Glan Hafren

2008-11-19T14:09:00.005Z

Anna Denton-Jones attended Coleg Glan Hafren on Wednesday 12th and Thursday 13th November to take two classes of students undertaking the CPP course, (the Certificate in Personnel Practice which will lead to accreditation with the Chartered Institute of Personnel Development). These sessions were organised by Julie Joyce their tutor and supported by Anna in her capacity as Committee member for the Cardiff Branch of the CIPD. After outling how the different areas of employment law overlap Anna discussed a number of absence related problems with the students, seeking to get them to thinking as to how they would deal with these scenario's if they were faced with them in the workplace.

The students enjoyed being able to talk to Anna about some of the real cases that she is working on.

Monday 10th November

2008-11-19T14:06:00.005Z

Anna Denton-Jones attended Cardiff University to meet with one of the MBA students. She set these students a challenging scenario based on a real case she had dealt with to see what they would do. Anna was then able to compare with them what she actually did in the real case.

This session was organised by Rachel Williams their tutor who was trying to put their employment law studies in context in the real world.

Managing Difficult Employees - Tuesday 11th November

2008-11-19T14:01:00.006Z

Over eighty people gathered at the Waterton Centre in Bridgend at this successful event organised by Bridgend County Borough Council's Economic Development Unit (Mary Pope). Whilst there was a very large number of people in the room the case study based format ensured that participants were not shy in coming forward with discussion points.

For more information about the events held in Bridgend please contact Mary Pope by:

Telephone: 01656 641721 or;

Email: mary.pope@bridgend.gov.uk

ACAS Mediation

2008-10-29T11:55:00.007Z

Our Managing Partner Anna Denton-Jones undertook the ACAS internal workplace mediation course in April 2008 following which she had to produce project work, complete qualificatin awarded by the ER. Under this Certificate Anna is now qualified to deal with the following issues:

Understanding conflict and mediation in the workplace

Introducing the clients to mediation

Moving through the mediation process

Skills and strategies for managing the mediation process

Practising mediation skills

Anyone interested in findin out more about mediation and how it may assist in resolving workplace disputes please speak to Anna on 02920 647314.

Morgan Denton Jones wins Business Start up of the Year Award

2008-10-29T11:53:00.006Z

Mark Morgan and Jenny Jones attended this prestigious event on the 15th October 2008 they were delighted to collect Morgan Denton Jones' award.

Marble Seminar 16th October

2008-10-29T11:45:00.005Z

Mark Morgan and Anna Denton-Jones were invited by Marble Recruitment to speak at their popular event held at the Copthorne Hotel in Cardiff. The theme of this recent event was legal issues surrounding social networking and blogging and provided a great forum for those in attendance to share their views and experiences of ways in which employees use technology to both positive and negative effects.

One of the highlights of the session was Mark Morgan's quiz. The prize, bottle of wine was won fairly and squarely by Leroy from Marble Recruitment!

For details of the next Marble seminar please contact Nicola O'Connor at nicola@marblerecruitment.co.uk

Major changes to maternity rules mean higher burden for employers

2008-10-07T09:50:00.001+01:00

For many years there was a legal distinction between Ordinary Maternity Leave (often abbreviated to OML) and Additional Maternity Leave (often abbreviated to AML). There were different rules on who qualified to take these different forms of leave and each form of leave attracted different entitlements. With the Work and Families Act of 2006 extending women’s rights to take leave so that all women can now take up to 1 year’s leave (being 26 weeks OML and 26 week’s AML), regardless of their length of service, this distinction began to be eroded.

The process of removing the distinction has been further advanced by changes to the Sex Discrimination Act 1975 and the long-named Maternity and Parental Leave and Paternity and Adoptive Leave (Amendment) Regulations 2008. One of the reasons behind this was a case which suggested our legislation had not fully brought the EC Equal treatment framework directive into force in the UK; forcing our legislators into action.

For mothers of babies due or employees who adopt on or after October 5th employers will have to take great care not to discriminate against women taking AML by removing non-cash benefits which previously it had been safe to do. For example, many maternity leave policies provided for the employee to be able to keep her company car during OML but to have to return it to the employer if she took AML. The same was often true of benefits such as gym membership or private healthcare which were often provided during OML but not AML. Now, these non-cash benefits should continue to be provided throughout the entire period of maternity leave (up to 1 year).

Many employers who arranged childcare vouchers for their employees via salary sacrifice schemes are being caught out, having not appreciated that these benefits will continue to accrue during AML. HMRC have published guidance called “Statutory maternity leave - salary sacrifice and non-cash benefits” (http://www.hmrc.gov.uk/employers/sml-salary-sacrifice.pdf). It includes useful worked examples of a number of different scenarios.

Holiday is another area which is impacted: employees continue to accrue full contractual and statutory holiday pay for the entire duration of the leave period.

The European legal position suggests that this extension of rights would also cover pensions which should be maintained during maternity leave: something our Government is adamant is not the case and argues that the recent changes don’t affect. Employers in the UK are currently adopting a “risk not paying them until there is a clarity that we have to” approach which could see fingers burned in the long-term especially in the public sector where it is easier for an employee to enforce EC law directly.

It is worth reviewing your practice to ensure compliance as a woman who is deprived of any contractual or discretionary benefits during OML or AML may have claims for deductions from wages, a claim that she has been subjected to a detriment for a reason connected with pregnancy or maternity, a claim for breach of contract, automatically unfair dismissal (if she treats herself as constructively dismissed) in addition to a sex discrimination action, for which unlimited damages apply.

So what do you need to do? After understanding the changes, you will need to update your policies or handbooks to reflect the new legal position. I would advise against maintaining the status quo (hoping no-one will recognise their rights, risking a claim) as much as I would advise against removing the non-cash benefit to avoid the changes as that could get you into difficulties over unilateral changes to the contract of employment. If you did decide to make changes to the contract of employment there are proper procedures to be followed to achieve this including consultation with employees.

Mrs Denton-Jones

2008-10-02T10:03:00.002+01:00

Anna finally tied the knot with Pete on 6th September. Mark and Jenny joined her to celebrate her big day. Congratulations Mrs Denton-Jones!

CIPD Event

2008-10-02T09:27:00.003+01:00

Mark was honoured to be invited to speak to 60 members of the South East Wales Branch of the CIPD on the subject of Social and Professional Networking and Blogging - What are the issues for HR? The event was well received, so well in fact he has been asked to roll out the same talk to others.

Wales Hot 100!

2008-07-30T11:58:00.004+01:00

Morgan Denton Jones has today been published in the Wales' Hottest 100 Start -Up list.

This is recognition of the the Company's success as Wales' only niche employment practice. Having only started the Firm in late 2007 we have achieved an impressive client list including both local, national and international clients. Our continued success is due to the hard work of the team and we are becoming known as the premier firm in Wales for human resources and employment advice and training.

I want to change my staff terms and conditions: How do I do it?

2008-07-29T11:42:00.004+01:00

We held another successful event in conjunction with Marble Recruitment at the Copthorne Hotel on 24th July.

The half day training session was attended by over 20 delegates from the HR community in the local area ranging from those in the charity sector through to some of the largest employers in the area. One HR Manager Emma said she "enjoyed the interaction between others and the speaker Anna Denton, sharing experiences". She found the presentation "easy to understand with no technical jargon". Topics for the next session which will take place in the autumn is currently under discussion, with the reguilar attendees. Suggestions include dealing with drug and alcohol related issues and empowering managers to deliver what is expected of them.

Delegates will have the opportunity to sign up for an information pack on how to change staff terms and conditions of employment. If you would be interested in receiving a copy please email info@mdjlaw.co.uk

2008-07-09T16:45:00.002+01:00

Legal update – Agency workers 29th May 2008 – are the chances of employers being able to take on agency-workers reducing?

Few employers will have failed to notice the “chatter” about protecting agency workers hotting up again in recent months, not least because a private Member’s Bill was going through Parliament supported by 1/3 of MPs (this has now been withdrawn following a recent Government announcement – the withdrawal of the Bill took place on 21st May 2008 after the announcement on 20th May 2008).

Proposals for a Temporary Workers Directive (the Directive) were first tabled by the European Commission in March 2002 and have been under consideration ever since. The debate has been over the extent to which agency workers should have the same basic rights with regard to working hours, overtime, holidays, maternity and protection against less favourable treatment as other employees. At European level the proposal has always been for this to kick in after six weeks, which we in the UK have always resisted.

The Government, TUC and CBI have now reached an agreement under which they will lobby at the European Council meeting in June, that agency workers should be entitled to equal treatment with comparable permanent employees after 12 weeks' employment. The UK is pushing for a new law to be in place by next year.

So what does this proposal mean? After 12 weeks in a job the agency worker will be entitled to at least the basic working and employment conditions to which they would have been entitled if they had been recruited directly by the end user organisation. This is at present relatively undefined but is likely to affect:-
• Pay and overtime rates – to ensure the agency worker has the same rate of pay as the workers engaged by the end-user, the end user is likely to have to pay more for agency staff (to include the fees the agency charge for providing the worker).
• Holiday - employers who offer more holiday to their staff than is the statutory minimum (at present) of 24 days per annum, will have to provide the agency staff with the greater amount of holidays.
• If the employer allows all staff with 3 months service to take up particular benefits (after probation) then it would have to offer those benefits to the temps also. However, the proposals do not cover enhanced sick pay or pension.
• Enhances Maternity or paternity benefits the end user pays to staff over and above the statutory rates. The agency worker would still need to have 26 weeks service at the 15th week before the expected week before confinement to qualify for

At it’s most broad, in a redundancy situation, it could become unacceptable to simply end the contracts of agency workers first as a means to avoid affecting your own staff, in a similar way that it is unlawful to get rid of those on part-time and fixed-term contracts first.This would build on the rights the agency workers already have not to be discriminated against on the grounds of race, sex, age, disability, religion, belief and sexual orientation.

However this will not mean that agency workers suddenly get unfair dismissal rights or the right to claim a redundancy payment – these rights only accrue to your employees. The recent case of James v Greenwhich Borough Council put to bed the idea that agency workers suddenly become your employees by virtue of time served alone.

Similarly you would not have to deal with disciplinary matters or grievances from agency workers – that is rightly the domain of the agency. Instead the Government has said it will consult on “mechanisms for resolving disputes regarding the definition of equal treatment and compliance with the new rules that avoid undue delays for workers and unnecessary administrative burdens for business”. This is likely to mean a claim to the Employment Tribunal but possibly with the option for ACAS to resolve the dispute.

What will the effect be on the use of agency workers?

The CBI said half of agency placements lasted fewer than 12 weeks, meaning that firms would be protected while trying to fill short-term vacancies at busy periods. Whilst the protection after 12 weeks will undoubtedly benefit many agency workers who are on longer-term placements, it is bound to affect whether employers continue to value agency workers as being “easy” to manage and cost-effective and encourage them to only use agency workers for genuinely temporary cover for a few weeks at a time.

For the agencies that supply the worker, who typically pay them and are responsible for organising their hours, holidays etc, the complexity of different workers at different organisations who are on different terms and conditions or even having temps at the same host organisation on differing arrangements because one has been there for 12 weeks and one hasn’t, is likely to be an administrative nightmare. They may actually decide to require employers to pay a “temp to perm” fee at the 12 week cut-off point and seek to off –load the temp to the employer at that stage rather than get involved in the complexity?

A note of caution

Just days after the Government’s announcement commentators are already pointing out that this is by no means a “done-deal”. The plan to legislate this autumn depends on a similar EU directive being passed before then. EU members still have to debate the issue and key aspects remain undecided. The UK is likely to face a massive challenge convincing ministers of the 12 week limit. Only when Brussels passes a directive will the UK government be able to put forward "implementing" legislation of its own, unless of course it decide to legislate anyway, facing the risk of having to change it when the EU made up its mind.

Anna Denton, Partner

Morgan Denton Jones LLP

Cardiff International Airport appointed us to put in place a training programme for Senior Staff

2008-05-29T12:56:00.004+01:00

The training will take place over 4 sessions throughout 2008, seeking to equip the delegates with a variety of management competencies, in particular in relation to managing day to day employment issues. Training will be carried out by our Partner Anna Denton.

Chartered Institute of Personnel Development South East Wales Branch

2008-05-22T13:03:00.004+01:00

Our Managing Partner Anna Denton was appointed to the Committee of the South East Wales branch of the Chartered Institute of Personnel Development at their annual general meeting this week. Anna has always supported the local branch having spoken many times at employment law update events, and contributing to the branch newsletter. Anna is looking forward to assisting Judith Smith in coordinating the events calendar.

For further information in relation to the branch please contact Lesley Richards the branch Secretary on lrichards@freshwater-uk.com

How many of your employees care for elderly relatives or those with disabilities?

2008-04-11T11:28:00.002+01:00

You have probably got used to the idea that employees with 26 weeks’ service have been able to request flexible working since April 2007 provided they have caring responsibility. You may even have had requests from such staff and may have said “no” using one of the eight business reasons you are entitled to use under the Flexible Working Regulations such as productivity or customer care suffering. Whilst the flexible working regime in itself poses relatively little risk, provided you follow the correct procedures to meet with the employee to discuss their request, employers who refuse requests are perhaps unwittingly running the risk of discrimination arguments, with this area having become much more complex recently.

Since many carers are women, refusing requests for changes in working hours or patterns can amount to indirect sex discrimination, in which case you would need to be able to objectively justify the refusal or risk an award for unlimited damages. Furthermore, the case of Coleman v Attridge Law & Steve Law has recently set a further cat amongst the pigeons as regards all forms of discrimination. The facts of the case itself involved an employee with a disabled child who claimed she had been discriminated against and harassed by her employer on the grounds of her child’s disability (her complaints related to refusing to allow her to return to her role after maternity leave, failure to be given the same flexibility as employees with non-disabled children, using her child to manipulate her working conditions and not dealing with her grievances inadequately). The Employment Tribunal referred the question to Europe over whether discrimination by association should be protected, as our UK legislation only prohibits discrimination “against a disabled person”.

The Advocate General (whose opinion is usually followed by the European Court of Justice when it rules on the subject) has stated that direct discrimination and/or harassment by association is prohibited by the relevant Directive (Equal Treatment Framework Directive). The rationale put forward was that the dignity and autonomy of the (in this case) disabled person is still being disrespected if the behaviour is indirect. Just because the employee who is the object of discrimination is not disabled herself, makes no difference. The Directive protects against discrimination “on the grounds of” disability, and the “ground” which serves as the basis of the discrimination the employee suffers continues to be disability.

Although the case itself focussed on disability, the Advocate General indicated that the same principle will apply to any of the prohibited grounds listed in Article 1 of the Directive (namely religion or belief, disability, age or sexual orientation). This means that the Directive would, for example, protect a person from discrimination because he or she is married to a person belonging to a particular religious group.

On the face of it, the Disability Discrimination Act 1995 does not prohibit discrimination by association - so, if the ECJ agrees with the Advocate General, the next hurdle for Miss Coleman will be to see if the UK courts are prepared to interpret UK law by, for example, implying additional wording into the DDA to achieve the purpose of the Directive. The same will apply to equivalent claims under the Age Regulations, for example, when an employee who wants to care for their elderly relative asks to work flexibly. In the end, the Government may need to change the relevant legislation if necessary to bring it in line with the Directive.

What will you need to do? Right now, you may decide to wait and see what the outcome is, but assuming Miss Coleman is protected, you will need to amend your equal opportunities and flexible working policies to make it clear that you won’t tolerate this kind of discrimination. You will need to provide refresher training to line managers on dealing with flexible working requests and generally how to avoid discriminating, such as not making negative judgments about reliability for someone who asked in an interview for part-time work because they care for an elderly parent or making allowances when managing absence for someone who was off sick because their child had a medical condition such as asthma. That is not to say you will never be able to refuse flexible working requests or take action when someone has lots of time off work but you may need to make sure you treat requests consistently and consider these issues in the decision-making process.

Morgan Denton Jones LLP

Redundancy Masterclass hailed as a great success

2008-04-11T11:13:00.001+01:00

The 3 partners of Morgan Denton Jones held an intimate training session for 13 organisations on April 10th 2008 which delegates gave top marks for. (We agreed to protect the anonymity of those in attendance for obvious reasons). When asked what was most useful about the event, feedback suggested it was the “practical approach to redundancy situations” and the “very clear and practical guidance provided”. For more information about the next Masterclass events email info@mdjlaw.co.uk

The Recruitment Best Practice event

2008-04-11T11:10:00.003+01:00

Organised by Marble Recruitment at the Copthorne Hotel, Cardiff on Thursday 3rd April was attended by over 40 delegates from a variety of organisations. Anna Denton spoke about legal best practice and recent changes to the law on checking entitlement to work in the UK. Katey Mears held an open discussion on interview tips and techniques which proved very popular: Deborah Mumford of Penn Pharmaceuticals Limited said the session was “informative, interesting and easy to understand”. Richard Thorne, Group HR Manager for Admiral commented “It’s good to be reassured that we’re pretty much on the right track”.

The next event we are holding with Marble will be in July: for further information email info@mdjlaw.co.uk

With Government plans to double the number of apprenticeships, employers may need to brush up on the way apprenticeships work, says Anna Denton

2008-04-11T10:45:00.009+01:00

Once upon a time apprenticeship involved a period of 7 years of living with and learning from your “master” under the auspices of a craft guild. Despite this system all but breaking down, the key elements of this archaic relationship persist: the core purpose is training, taking place over a fixed-term period during which the employer has restricted abilities to dismiss.

Whilst increased funding and incentives and the desire to plug the skills gap is attracting employers back to this model of engagement, they need to be aware of the special implications of such a relationship.

Firstly, in order for an apprenticeship to be formed it needs to recorded in writing, unlike a contract of employment which can come into being as a result of an oral agreement.

Secondly, the fixed term nature of the relationship needs to be appreciated. Unlike a normal employment relationship the employer cannot bring the contract to an end, for example, because of a downturn in work or because of a change in funding arrangements. If you did try and terminate the relationship earlier, you would not only face a claim for damages for the loss of wages for the rest of the fixed-term but also compensation for the loss of training and loss of status, the argument being that the apprentice is less employable because they did not complete their training. You could expect damages to be much higher than for unfair dismissal alone.

In addition, you will be expected to manage performance and absence issues in a manner which results in the apprentice achieving the required standards. Generally, you can only terminate the apprenticeship if their conduct is such that it makes it impossible for you to carry out the central purpose of the relationship ie:- teaching them their trade. This is a much higher threshold than you will be used to.

What should an apprenticeship agreement cover?

Apprenticeship is not only a relationship of employment but of learning and teaching, in fact the law views it as learning foremost with any work you get out of the apprentice as very much a secondary element. As a minimum therefore any written agreement should detail what skills the apprentice can expect to learn or the programme of training that will be put in place. The Agreement should make it clear what is expected of the apprentice and what will need to be demonstrated in order to be proficient enough to pass out of the scheme. For example, this might be the obtaining of externally assessed qualifications.

If you are not providing all the training yourself but a third party training provider is, you may want to put in place a tripartite agreement setting out what the apprentice can expect from the third party but at the very least you should not warrant the quality of training that that third party is responsible for, or leave yourself exposed to claims for failing to provide the training adequately, if this is out of your control. Unless otherwise stated you will be expected to help the apprentice to secure the relevant qualification to enable them to pursue a full-time career.

You may also want to consider the following provisions in any written agreement:-
· The length of the fixed-term the apprenticeship is to last for (there is no set period in the law);
· If the apprentice is under 18, signature by their parent or guardian;
· A probationary period prior to the commencement of the formal apprenticeship to make it easier to remove any unsuitable candidates at the outset;
· The appointment of a mentor or person with special responsibility for apprentices, who will take care of their welfare during the apprenticeship;
· Details of how progress will be reviewed and monitored and how regular this will be;
· The ability to terminate the relationship if the apprentice does not attain the necessary standards after a sufficient opportunity to do so;
· Requiring those who leave after the end of the apprenticeship to pay back certain training fees if they do not stay with you for a stated period of time; and
· Arrangements to transfer the apprentice in the case of a redundancy situation or at least to make reasonable efforts to find alternative work for them to enable them to complete their training.

The signing of this written agreement should be witnessed by independent witnesses who are able to confirm that the signatories entered into the agreement freely and willingly.
What other obligations will I have towards an apprentice?

Your duties in discrimination law, and in the case of public authorities, wider equality duties, will apply to apprenticeships just as much as to other forms of worker. In particular employers need to take care not to apply age limits to apprenticeship schemes, especially as the Government has lifted former age restrictions on funding. Other eligibility criterion should be reviewed to ensure they are not indirectly age discriminatory, for example, requiring recent GCSEs.

You must comply with the National Minimum Wage Act 1998 – whilst there are provisions entitling you to pay lower rates to younger staff and a lower rate for those in “accredited training” that will only last for 6 months. Likewise you will have obligations under the Working Time Regulations as regards rest breaks and paid holidays and the usual health and safety obligations akin to those for all staff.

However, you should also make sure you that you entitle your apprentices to the same benefits as other staff, unless you can objectively justify treating them differently. Clearly if they are treated differently you could risk discrimination claims including under the legislation protecting Fixed-term Employees.

Anna Denton, Morgan Denton Jones LLP
adenton@mdjlaw.co.uk

When was the last time you trained your line managers about harassment related issues?

2008-04-11T10:39:00.004+01:00

In recent times employers have probably been more concerned to ensure their staff are aware of the risks of encountering liability for age discrimination or for discrimination on the grounds of religion or belief or sexual orientation to have been focussed on the law relating to sex discrimination. However recent developments in the law could have significant impact for employers who are responsible for what goes on in the work place when it comes to harassment, unless the employer can be seen to have taken all reasonable steps to prevent such harassment occurring.

The Sex Discrimination Act 1975 (Amendment) Regulations 2008 amend the Sex Discrimination Act 1975 (SDA) following a High Court's decision in last year in Equal Opportunities Commission v Secretary of State for Trade and Industry (, being yet another occasion on which a court has ruled that the UK has failed to implement EC law properly. The 2008 Regulations, which came into effect on 6 April 2008, widen the definition of sex harassment, and make employers liable in certain circumstances for the harassment of an employee by a third party, amongst other things.

Under the SDA a person harasses a woman where, "on the ground of her sex, he engages in unwanted conduct that has the purpose or effect of violating her dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her". The 2008 Regulations amend the definition to encompass "unwanted conduct related to her sex or the sex of another person" that has the necessary purpose or effect. This is a wider test: for example, an employee would be entitled to complain about sexist remarks directed at someone else or about jokes relating to another woman, such as a celebrity. Would your staff realise they shouldn’t be making comments in work about the size of Jordan’s bust in the latest copy of Hello magazine?

The law also widens an employer’s liability for harassment of an employee by a third party such as a visitor, customer, supplier or other service user. The employer is responsible where "A third party subjects the woman to harassment in the course of her employment"; this would cover customers in a restaurant making lewd remarks to a waitress or builders working on your roof woolf-whistling at your employees as they come to work. However liability would only arise if "The employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so"; and "The employer knows that the woman has been subject to harassment in the course of her employment on at least two other occasions by a third party". Thus in our example, if the restaurant manager had been informed by other staff of previous comments made by the diner, and failed to warn the diner that such comments would result in him being barred from the restaurant or failed to put signs up in the restaurant warning customers not to be offensive to staff, the restaurant owner could be liable for unlimited damages.

Many readers will say “didn’t we already know this”? after the famous Bernard Manning racial harassment case Burton v De Vere where waitresses were abused by the notoriously rude comedian. Indeed, there are similarities in this law but actually Burton was much wider. The hotel owner didn’t need to know of any previous acts of harassment; the core issue was whether they could reasonably have prevented the harassment in question. Under this new test, even if the third party in question is notorious for having harassed employees in the past and the employer takes no action to prevent further harassment, a new "victim" will have no remedy until she herself has been harassed three times which seems rather odd.

Morgan Denton Jones
April 2008