We have obtained a copy of the Beecroft Report for your perusal. What do you think of its proposals? Is it an erosion of Employment Rights or is it a genuine reform?
http://www.bis.gov.uk/assets/biscore/employment-matters/docs/r/12-825-report-on-employment-law-beecroft.pdf
Feel free to comment.
Monday 28 May 2012
Thursday 24 May 2012
Enterprise and Regulatory Reform or Erosion of Employment Rights? (You decide)!
The Enterprise and Regulatory Reform Bill has yesterday been presented before Parliament and begins its process to becoming law. The Bill can be found here
Essentially it proposes the following:
Essentially it proposes the following:
- A mandatory period of Acas conciliation before instituting tribunal proceedings (with heavy reliance on as yet unpublished detail by way of Regulations)
- Extension of limitation periods to allow for pre-issue Acas conciliation
- Introduction of 'legal officers' to make decisions in certain cases if all parties agree in writing
- EAT cases to be heard by a judge alone, unless ordered otherwise
- power for Secretary of State to limit unfair dismissal compensatory award to a maximum between the national median earnings and 3 x median earnings.
- According to Daniel Barnetts update and his conversations with Rowena Robson of the Department of Business, Innovation and Skills, the DBIS is working from a median average earnings figure of £26,000. That means (if the power is exercised) that the compensatory award will be capped at somewhere between £26,000 (one year's earnings) and £78,000 (three years' earnings).
- Alternatively, power for the Secretary of State to limit unfair dismissal compensatory award to one year's earnings
- Power for a tribunal to impose a penalty on employers of 50% of any financial award, subject to a minimum of £100 and maximum of £5,000, where there are "aggravating features" (not defined), with a 50% discount for payment within 21 days
- Defintion of 'qualifying disclosure' in whistleblowing legislation to be restricted to disclosures "in the public interest" (not defined)
- 'Compromise agreements' to be renamed 'settlement agreements
Monday 21 May 2012
9th Circuit Agrees that Medical Marijuana Users Not Protected by ADA
In 2008, the California Supreme Court held in Ross v. Ragingwire Telecomm. Inc. that the California Fair Employment and Housing Act does not protect current users of medical marijuana. Post here. Article here.
The Ninth Circuit just held (2-1) that the federal ADA excludes from coverage current illegal drug users and that "illegal" includes marijuana use that would be lawful in California, but is unlawful under federal law:
The case is James v. Costa Mesa and the opinion is here.
The Ninth Circuit just held (2-1) that the federal ADA excludes from coverage current illegal drug users and that "illegal" includes marijuana use that would be lawful in California, but is unlawful under federal law:
We hold that doctor-recommended marijuana use permitted by state law, but prohibited by federal law, is an illegal use of drugs for purposes of the ADA, and that the plaintiffs' federally proscribed medical marijuana use therefore brings them within the ADA's illegal drug exclusion. This conclusion is not altered by recent congressional actions allowing the implementation of the District of Columbia's local medical marijuana initiative.
The case is James v. Costa Mesa and the opinion is here.
Wednesday 16 May 2012
Discrimination and Illegal Contracts of Employment
A person who is knowingly working illegally in the UK cannot put forward a claim of racial discrimination arising from her treatment by her unlawful 'employers says the Court of Appeal in the case of Hounga v Allen [2012] EWCA Civ 609.
Ms Hounga, who is Nigerian was employed by a family as an au pair. She had no legal right to be in the country and did not have the required legal permit. It was held that both she and her employers were aware that her employment was unlawful. She was dismissed and upon dismissal brought a claim in the Employment Tribunal for unfair dismissal amongst other claims including Race Discrimination. All claims failed at the ET on the grounds of illegality but the ET held that her claim of Race Discrimination should continue on the basis that it did not require a valid contract of employment.
The Court of Appeal was asked to consider, along with other issues, whether Ms Hounga could bring a race discrimination claim even though she was working illegally. In deciding this point the Court analysed two cases Hall v Woolston Hall Leisure Ltd [2001] ICR 99 and Vakante v Governing Body of Addey and Stanhope School (No 2) [2005] ICR 231.
In Hall the claimant was allowed to bring a sex discrimination claim even though she had acquiesed in an ongoing illegallity by her employer whilst in Vakante an illegal immigrant was prevented from bringing a claim.
The Court ruled that there was no conflict between the two cases, in the case of Ms Hall there was no active participation by her in the illegality merely acquiescence once she realised that her employer was acting illegally whilst in Vakante by contrast he was an active party in the illegality.
Applying the same principles to the case of Ms Hounga she similarly was fully aware that she was not legally allowed to work and, even though the Court accepted that she was a vulnerable person, she nevertheless could not bring a claim which arose out of her illegal conduct.
As Lord Justice Rimer said in his speech "If this court were to allow her to make that case, and so rely upon her own illegal actions, it would be condoning her illegality. That is something the court will not do".
Thanks to D Barnett for notifying me about this.
Ms Hounga, who is Nigerian was employed by a family as an au pair. She had no legal right to be in the country and did not have the required legal permit. It was held that both she and her employers were aware that her employment was unlawful. She was dismissed and upon dismissal brought a claim in the Employment Tribunal for unfair dismissal amongst other claims including Race Discrimination. All claims failed at the ET on the grounds of illegality but the ET held that her claim of Race Discrimination should continue on the basis that it did not require a valid contract of employment.
The Court of Appeal was asked to consider, along with other issues, whether Ms Hounga could bring a race discrimination claim even though she was working illegally. In deciding this point the Court analysed two cases Hall v Woolston Hall Leisure Ltd [2001] ICR 99 and Vakante v Governing Body of Addey and Stanhope School (No 2) [2005] ICR 231.
In Hall the claimant was allowed to bring a sex discrimination claim even though she had acquiesed in an ongoing illegallity by her employer whilst in Vakante an illegal immigrant was prevented from bringing a claim.
The Court ruled that there was no conflict between the two cases, in the case of Ms Hall there was no active participation by her in the illegality merely acquiescence once she realised that her employer was acting illegally whilst in Vakante by contrast he was an active party in the illegality.
Applying the same principles to the case of Ms Hounga she similarly was fully aware that she was not legally allowed to work and, even though the Court accepted that she was a vulnerable person, she nevertheless could not bring a claim which arose out of her illegal conduct.
As Lord Justice Rimer said in his speech "If this court were to allow her to make that case, and so rely upon her own illegal actions, it would be condoning her illegality. That is something the court will not do".
Thanks to D Barnett for notifying me about this.
Tuesday 15 May 2012
TUPE - Organised Grouping of Employees
The EAT has recently handed down its judgement in Seawell v Ceva Freight Limited (1) Moffat (2). Her Honour Smith J held that it was not enough that one person worked 100% on a clients business but instead there must be an 'organised grouping of employees.'
On the facts it was clear whilst Mr Moffat worked 100% on the clients business, there was not enough evidence to say that he was an organised grouping of employees. He did not carry out the activities concerned which in this case were the activities, after the service change, carried out by the client instead of by the previous contractor.
There was no basis for finding in this case that there was a group of employees specifically organised for this particular contract. An organised grouping of employees denotes a deliberate and conscious putting together of a group of employees for the purpose of the relevant client work. As the EAT put it: "it is not a matter of happenstance".
There was no such conscious employee grouping on the facts of the case and this is necessary. As such there was no service provision change and no relevant transfer. In this regard, the previous EAT authorities of Argyll Coastal Services v Stirling (EAT S/0012/11) and Eddie Stobart Limited v Moreman (EAT/0223/11) were to be followed.
On the facts it was clear whilst Mr Moffat worked 100% on the clients business, there was not enough evidence to say that he was an organised grouping of employees. He did not carry out the activities concerned which in this case were the activities, after the service change, carried out by the client instead of by the previous contractor.
There was no basis for finding in this case that there was a group of employees specifically organised for this particular contract. An organised grouping of employees denotes a deliberate and conscious putting together of a group of employees for the purpose of the relevant client work. As the EAT put it: "it is not a matter of happenstance".
There was no such conscious employee grouping on the facts of the case and this is necessary. As such there was no service provision change and no relevant transfer. In this regard, the previous EAT authorities of Argyll Coastal Services v Stirling (EAT S/0012/11) and Eddie Stobart Limited v Moreman (EAT/0223/11) were to be followed.
Re-Launch of Employment Litigator Online
We have decided to relaunch the Employment Litigator Online Blog and provide news, views and updates in respect of Employment Tribunals, Judgements before the EAT and Higher Courts. We also aim to provide a Free Employment Law Helpline which will be aimed at Employers and Employees alike providing initial advice on any matter free of charge.
We of course wish to tie in our social media developments too by incorporating and encouraging you to follow our twitter feeds and joining our Facebook Page for additional content and interaction.
Our relaunch is offering something really special. Feel free to contact us to register your interest and obtain the very best advice in Employment Law.
Twitter: www.twitter.com/TribunalNews
Facebook: http://www.facebook.com/FreeEmploymentLawAdvice
In the meantime, watch this space!
Gary
We of course wish to tie in our social media developments too by incorporating and encouraging you to follow our twitter feeds and joining our Facebook Page for additional content and interaction.
Our relaunch is offering something really special. Feel free to contact us to register your interest and obtain the very best advice in Employment Law.
Twitter: www.twitter.com/TribunalNews
Facebook: http://www.facebook.com/FreeEmploymentLawAdvice
In the meantime, watch this space!
Gary
Sunday 6 May 2012
Spotted
Lovelies,
 |
| Dooney and Burke Purse, Sam Edelman Flats |
 |
| J. Crew belt. |
 |
| J. Crew Skirt and Linen Pullover. F21 Trench. |
 |
| Henri Bendel Bracelet. |
This was taking somewhere between East 79th and 84th, close to the Met. I don't know why, but there's something about the neighborhoods along the park that make me so happy. Actually, scratch that. New York City as a whole makes me happy. I always thought it would be so much fun to just get lost. Explore the Updown, Midtown, Downtown, SoHo, Greenwich, The Flower district...I could spend my entire life there, easily. Just for you, I thought I'd mention a few of my all time favorite things in this city-
- The Morgan Library
- The Roof of the Surrey
- 712 5th Avenue
- High Tea at Saks
- Louis Vuitton Fourth Floor
- The Sculpture Area in the Met
- The Great Lawn in Central Park
- Cab Rides
-The Yogurt Parfaits at Sant Ambroeus
- The Kennedy Bridge
- Laduree
- How happy I am. :)
I could go on and on, but I'll spare you guys. ;)
XOXO,
Em
769 Madison Ave.
Lovelies,
J. Crew on Madison Ave. has to be one of the best stores I've ever stepped into. The cashmere sweaters on the racks hang in this gorgeous, airy way.... The leather flats are supple and brightly colored.... There's even a whole floor downstairs dedicated to bridesmaid and bridal attire. I honestly don't know how I survived an hour in the store without spazzing like a fool, but it all worked out in the end! ;)
This J. Crew boasts the famed "J. Crew Collection", a higher-end branch-off of the label. Although the shoes and jewelry can be found at other J. Crew's, the clothes are exclusively sold at this store and online. I asked my mom if we could make a quick stop here after we passed it in a taxi a few days earlier. Fortunately, we had a few hours to kill on the last day and I got my wish! Unfortunately, I barely had enough money to buy any article of clothing in the store. (I already did work at Louis Vuitton, Bond no. 9 and Bendel's a day beforehand). Luckily, I had just enough money to purchase a pair of coral classic leather ballet flats.
I. Love. Them.
They're probably the most outlandish impulse buy I've ever made (the color is practically neon), but I surely don't regret buying them. I've already worn them a couple times and have received tons of compliments. So, in the long run, they were worthwhile. :)
XOXO,
em
J. Crew on Madison Ave. has to be one of the best stores I've ever stepped into. The cashmere sweaters on the racks hang in this gorgeous, airy way.... The leather flats are supple and brightly colored.... There's even a whole floor downstairs dedicated to bridesmaid and bridal attire. I honestly don't know how I survived an hour in the store without spazzing like a fool, but it all worked out in the end! ;)
This J. Crew boasts the famed "J. Crew Collection", a higher-end branch-off of the label. Although the shoes and jewelry can be found at other J. Crew's, the clothes are exclusively sold at this store and online. I asked my mom if we could make a quick stop here after we passed it in a taxi a few days earlier. Fortunately, we had a few hours to kill on the last day and I got my wish! Unfortunately, I barely had enough money to buy any article of clothing in the store. (I already did work at Louis Vuitton, Bond no. 9 and Bendel's a day beforehand). Luckily, I had just enough money to purchase a pair of coral classic leather ballet flats.
I. Love. Them.
They're probably the most outlandish impulse buy I've ever made (the color is practically neon), but I surely don't regret buying them. I've already worn them a couple times and have received tons of compliments. So, in the long run, they were worthwhile. :)
XOXO,
em
Ivy
Lovelies,
i
 |
| Gap Pants, Abercrombie Shirt, F21 Trenchcoat, Bag from France. |
 |
| Steve Madden shoes. |
Most people roll their eyes when they discover that I've been college touring ever since I was a freshman...but I can explain! Promise. :)
After watching some of my senior friends go through the process of applying to college, it became painfully obvious that the ones who knew exactly where they wanted to go to school had heaps less stress then those who kind of threw a line out to sea, hoping that one or two good schools would send them an acceptance letter. I'm one that gets stressed over the most trivial details, so, as you can only imagine, college has been looming over my head since 6th grade. It's crazy, but touring them now takes a little bit of the stress away. While in New York, I toured a couple colleges after investigating them online and two or three mammoth college guides to the 'Top 100 Best Schools in the U.S'. By the end of the day, my heart was set on one of them. I won't say where, since I want it to be...a surprise? :)
XOXO,
em
Tuesday 1 May 2012
Laduree
Lovelies,
Let me get something straightened out right now. Ladurée is NOT just a pastry store...It's an entire experience in itself. The pastel walls, perfumed air and bustling store is nothing short of perfection. Plus, I can't even BEGIN to describe the taste of the rose macaroon above after my Ladurée pastry deprivation that lasted a whopping 3 years. It was pure heaven.
I first visited Laduree at their HQ on the Champs Elysees. Although the store in New York is vastly smaller than the original Ladurée, the pastries inside make up for it. My favorite item has to be, of course, the macaroon. Both the rose and orange blossom flavors are delicious. I purchased a can of their Strawberry Raspberry Green Tea as well, and l-o-v-e it! It's really perfumed, and isn't too heavy of a tea to drink at night!
For now, I can only visit the pastry shop as much as I visit New York...which, unfortunately, isn't very often. Hopefully, my visit count will began to climb ASAP. :)
XOXO,
em
 |
| J. Crew Peacoat, Scarf and Flats. Abercrombie Jeans. |
Let me get something straightened out right now. Ladurée is NOT just a pastry store...It's an entire experience in itself. The pastel walls, perfumed air and bustling store is nothing short of perfection. Plus, I can't even BEGIN to describe the taste of the rose macaroon above after my Ladurée pastry deprivation that lasted a whopping 3 years. It was pure heaven.
I first visited Laduree at their HQ on the Champs Elysees. Although the store in New York is vastly smaller than the original Ladurée, the pastries inside make up for it. My favorite item has to be, of course, the macaroon. Both the rose and orange blossom flavors are delicious. I purchased a can of their Strawberry Raspberry Green Tea as well, and l-o-v-e it! It's really perfumed, and isn't too heavy of a tea to drink at night!
For now, I can only visit the pastry shop as much as I visit New York...which, unfortunately, isn't very often. Hopefully, my visit count will began to climb ASAP. :)
XOXO,
em
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