Some of your questions

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A fee dispute has arisen over a candidate who's CV was introduced by us with candidate approval to company X. On hearing there were no live vacancies the candidate doubled up their application direct the next day with the same company, different department. The candidate did try to withdraw the direct application but the company would not accept the agency introduction. Please advise.

Before answering the question, I am presuming that you do have a contract with Company X which deals with, among other things, your entitlement to charge when candidates introduced by you are employed. Turning to the question, it will depend on whether the agreed terms of your contract with Company X cover this situation. Your contract should include a provision that a client such as Company X would be liable to pay your fees if you introduced the candidate, who was subsequently employed, whether or not the candidate was employed as a direct result of your introduction. This covers situations where the candidate applies direct. Also, ideally, the contract will have a relatively wide definition of "introduction" which will again protect you - e.g. if you send a CV, that would be deemed to be an introduction. So, check you do have a binding contract with Company X and check that it contains the correct type of terms to provide that Company X are liable to pay you irrespective of the direct application.

Two of our recruitment consultants are in a relationship and have recently informed me that they are expecting a baby.Both the mother and the father would like to take the maximum time they can away from work to care for the baby when it arrives.We don't have any enhanced maternity or paternity provisions for staff.How long could they both be away from work under the statutory provisions?

All female employees qualify for 52 weeks' statutory maternity leave, regardless of their length of service.This maternity leave is split into 26 weeks of ordinary maternity leave and 26 weeks of additional maternity leave. Following a recent change in the law, employees whose expected week of childbirth ("EWC") begins on or after 5 October 2008 will have the right to the same terms and conditions during additional maternity leave as they currently enjoy during ordinary maternity leave.However, in order to qualify for maternity leave, the employee must have notified you of her pregnancy no later than fifteen weeks before the EWC (or, if this was not practicable, as soon as possible before the EWC).

In order to be eligible for paternity leave, the father must have completed 26 weeks' continuous employment with you by the end of the 15th week before the EWC, and must also have notified you of the pregnancy no later than fifteen weeks before the EWC.He must be the father of the expected child, or alternatively he must be either married to, or the partner of, the mother.His planned absence must be for the purposes of caring for the child, or supporting the mother of the child in her caring for the child.If these eligibility criteria are met, your recruitment consultant is entitled to take either one or two weeks' paternity leave (the choice is his).If, as you say, he wishes to take his full paternity leave entitlement, those two weeks must be taken together rather than as two separate periods of one week.

Subject to various conditions and any postponement by you in accordance with the statutory procedure, employees may also wish to exercise their right to request a four-week period of unpaid parental leave to care for their child at some point following their maternity/paternity leave, and possibly immediately thereafter.

In addition, both the mother and father may well wish to take a period of annual leave at either end of the above leave. Unless their contracts limit the amount of annual leave which may be taken at once, and subject to your approval and to any remaining entitlement in the holiday year in question, you should be aware that they might wish to take their full annual leave entitlement before and/or at the end of their maternity/paternity or parental leave.This could mean that they are away from work for significantly longer than the relevant statutory periods described above.

Can I stop an employee from using their personal mobile to store my client contact numbers?

The short answer is yes. The client contact details may amount to confidential information which belongs to the company and which the company is entitled to protect. If you provide your employee with a company mobile phone, then you can expect them to use that mobile phone to conduct company business. You are entitled to restrict them from using their personal mobile phone to store client details. You should make sure that your contracts of employment are properly drafted to allow for this and for the return of it and other property on termination of employment.

How often will an employer have to check an employee's right to work in the UK after 29 February 2008 to avoid a civil and/or criminal penalty?

Employers will be required to check the right to work of all employee's before their employment commences.

If an employee provides a document that indicates he/she has a continued right to work in the UK (such as a British passport) then the employer will not be required to make further checks during the course of employment.

If an employee provides a document which indicates he/she has a restriction on his/her stay in the UK (such as a Work Permit along with an endorsed Passport), then in addition to checking this document before the commencement of employment the employer must also continually check the employee's right to work during the course of employment (at the very least once a year). Employers should also diarise when an employee's leave is due to expire to avoid employing that person illegally before the next scheduled check.

The immigration team can offer further guidance about these changes, and the variety of acceptable documents to benefit from the statutory defence.

How should employers deal with a grievance when it is also raised in an ET claim?

Respond to any grievance using the statutory grievance procedure as usual, and file the ET3 response within the time limit.

An ET1 cannot constitute a grievance, and an employee must wait 28 days between issuing a grievance and filing a claim form, but it often happens that the internal procedure has not been completed prior to the Tribunal procedure commencing.

What types of claim can ‘workers’ (not employees) bring in the Employment Tribunal?

Tribunals will hear the following claims by workers (among others):

• Unlawful deduction of wages
• National minimum wage/Working Time Regulations (i.e. for paid annual leave, rest breaks etc)
• Whistle-blowing
• Almost all discrimination claims except those regarding civil partnership status or for being a fixed-term employee.

Workers do NOT have rights to the following:

• Not be unfairly dismissed
• Notice pay
• Redundancy pay
• Maternity pay
• Sick pay
• Protection under TUPE.

When is a ‘strike out’ request best made, and when can you obtain costs orders?

Strike out applications

An Employment Judge may be persuaded to strike out a claim on the grounds that:

• the claim is scandalous or vexatious, or has no reasonable prospects of success
• the manner in which the proceedings have been conducted by or on behalf of a party has been scandalous, unreasonable or vexatious
• the claim has not been actively pursued
• non-compliance with an order or practice direction; or
• it is no longer possible to have a fair hearing in the proceedings.

Strike out applications should only be used if a claim is truly misconceived or the non-compliance is serious. Tribunals are particularly lenient with litigants in person, on the basis that they have no experience of the Tribunal system and no detailed knowledge of the law. Bear in mind that the Tribunal's overriding objective is to do justice between the parties. This will require a Tribunal to examine all the circumstances of the case, the extent and effect of the default and to assess whether a fair hearing is still possible. Tribunals may also consider whether an alternative sanction to strike-out would be appropriate.

Costs orders

A party can apply to the Tribunal for a costs order on the basis that the other side or their representative (in conducting proceedings) has acted vexatiously, abusively, disruptively, or otherwise unreasonably, or that the bringing or conducting of proceedings has been misconceived.If the Tribunal agrees, they will award costs only if they consider it to be appropriate. However, costs awards in the Tribunal are rare - approximately 1 in 500 cases result in a costs order being made.

Are there any other ways to deal with frivolous / vexatious claimants

Other ways of dealing with truly vexatious claimants include:

• applying to the tribunal for a restriction of proceedings order against that person. An application may be made where a person habitually and persistently and without any reasonable grounds institutes vexatious proceedings (whether or not against the same or different respondents) or makes vexatious applications in proceedings to the Tribunal. This is, however, an extremely rare procedure to invoke, and will only ever be deployed in the most serious of cases
• Making an application that the claim be struck out at a Pre-Hearing Review
• Applying for a deposit order at PHR
• Making an application for a costs order
• Threatening to make/making an application for a wasted time order / preparation time order.

When can an employee claim an “injury to feelings” award, and how much could they get?

An 'injury to feelings' award can be claimed as a head of compensation in any discrimination claim

These awards are designed to be compensatory, not punitive.

There are 3 broad categories of levels of compensation to assist the Tribunals (known as the 'Vento' brackets):

• £500 - £5,000: less serious cases where the act of discrimination is a one-off, isolated incident
• £5,000 - £15,000: serious cases which do not merit an award in the highest band and
• £15,000 - £25,000: 'most serious' cases, for example where there has been a lengthy campaign of discriminatory harassment.

Employment Tribunals believe that awards below £500 should be ‘avoided altogether’, and awards of over £25,000 should be made only in the ‘most exceptional’ cases.

With regards to high-profile Tribunal cases, what kind of arrangements/facilities are there for the press, and will the ensuing media coverage influence the Tribunal or have a future effect on the employee and employer involved in the case?

As you can imagine, 'bad press' for either side can be hugely damaging. Unfortunately, the papers today love to report on the kind of high-profile discrimination cases that the Tribunal often hears.

The impact is reputational.Employers may lose out on high-value candidates if convicted of, say, discrimination. They may also lose pitches to clients if they are requested to detail any history of Tribunal claims brought against them.

Employers may not want to hire an employee who has brought a high-profile case against a previous employer, as they may be seen as litigious/trouble-makers.

The use of the press is a strategic question. It is a very useful card on both sides in would-be high-profile cases, but once played, it loses its value as a useful threat against pursuing proceedings and refusing to come to the table to discuss settlement.

Restricted Reporting Orders ("RROs") can be applied for in cases that involve issues of sexual misconduct or disability. An RRO prohibits the publication in Great Britain of any matter that is likely to lead members of the public to identify individuals as affected by or as the person making the said allegation. Once the Tribunal has made an RRO, a notice of that fact is displayed at the Tribunal and at the door of the room in which any hearing on that matter is taking place. RROs can also be very powerful as they can remove the direct threat of the press.

What is the role of the conciliator prior to the Tribunal?

A conciliator talks through the issues with both sides, to see if a solution can be found.

If necessary, for example, when dealing with litigants in person, they will also:

• Explain the conciliation process
• Explain the way Tribunals operate, and what they will take into account in deciding the case
• Discuss the options open to a party, including arbitration where appropriate
• Help each party to understand how the other side views the case, and explore how it might be resolved without a hearing
• Report any proposals the other side has for a settlement.

A conciliator will not:

• Make a judgment on a case, or predict the likely outcome of a hearing
• Advise a party whether or not they should accept any proposals for settlement
• Act as a representative, take sides, or help a party prepare their case.

What changes will recruiters need to make on their websites as a result of the coming into force of the Companies Act 2006?

Recruiters with websites should be monitoring legal developments on an ongoing basis. It is important to ensure that website material complies with new law and regulations. According to the different requirements of the law or regulations in question, you may need to modify your content or include specific information or statements.

Now that the Companies (Registrar, Languages and Trading Disclosures) Regulations 2006 have come into force, companies and LLPs must include the following information on their websites:

1) the company's or LLP's name

2) the company's or LLP's "particulars" (as defined in section 351 Companies Act 1995), which include its place of registration and registered number and its registered office address

If you do not comply with these regulations, you may be liable to a fine.

If the worst happens and a company is wound up, all of the company's websites must contain a statement saying that the company is being wound up.

What is the difference between a worker and an employee?

An employee is an individual employed by another person under a contract of employment or a contract of services. Whilst, a worker is a person engaged to work under a contract for services for another person.

The difference between a worker and an employee is significant as it determines the rights that the individual has. Employees have more rights than workers and recently there has been much case law on the status of workers and whether they have acquired employment rights during their assignment.

Both workers and employees have many rights, just some of the rights enjoyed by workers and employers are to not be discriminated on grounds of their race, gender, religion, disability, age, religious beliefs, gender reassignment and sexual orientation.

Employees also have the further right not to be unfairly dismissed after one year's continuous service and the right to a redundancy payment after two year's service.

What are restrictive covenants and are they enforceable?

Restrictive covenants are aimed at restricting the activities of employees after their employment ends with you.

In order to be enforceable, restrictive covenants must serve the legitimate business interests of your company, being reasonable and unequivocal in their content and no wider than is absolutely necessary.

A carefully drafted restrictive covenant is essential.

Can I dismiss an employee or temporary worker because she is pregnant?

Workers and employees are protected from being dismissed on grounds of their pregnancy. If they are dismissed for this reason they could bring a claim for sex discrimination, as they would be able to prove that they have been treated less favourably because of their pregnancy.

Damages are not capped for sex discrimination. Therefore, if you wish to dismiss an employee you must make sure that it is for a reason unconnected to the pregnancy otherwise the employment tribunal may also find it to be automatically unfair.

I have just found out that one of my consultants has taken a list of candidates from my database and is about to set up his own business. What should I do?

First, don't panic. You should not confront him until you have conducted a thorough investigation of your own records. Try to find out how and when he took the data and check your computer systems. You are likely to find out more information that will assist you in taking action to recover your data and financial compensation.

If you confront him before getting your house in order, you run the risk of him denying wrongdoing and taking steps to conceal his use of this list. You will lose the element of surprise and may drive this problem underground only for it to resurface in the future.

I have a quick question: Do you have any material (or links to material) giving information on discrimination (age/sex) and the obligations on Job Boards? Specifically we have a Spanish Company advertising a role with applicants must be over 21yrs. They are covered as they are not a UK company, but as a UK Job Board do we have obligations or legal responsibilities?

Response: It is unlawful for a job board, or any otherorganisation that publishes roles for prospective job applicants, to publish orcause to be published a discriminatory advertisement. This prohibition coversboth employers who place such advertisements and the job board that publishesthe advertisement. However, the various discrimination laws in the UK are notconsistent on this: it is unlawful to publish such an advertisement if itscontent is discriminatory on grounds of sex, race or disability, but not if itscontent is discriminatory on the grounds of religion or belief, age or sexualorientation. If one of the agencies or public bodies that promotescompliance with UK discrimination laws (i.e. the Equal Opportunities Commission("EOC"), Commission for Racial Equality ("CRE") orDisability Rights Commission ("DRC") (or, from October 2007, thejoint Commission for Equality and Human Rights)) takes action on adiscriminatory advertisement that appears on a job board, an employmenttribunal has the power to make a declaration that the advert is discriminatory.If it appears that the publisher might repeat the offence, a subsequentapplication to the County Court could lead to an injunction to stop thepublication of further such advertisements. As a matter of best practice, if you are in any doubt aboutthe instructions given to you by a client, you should obtain the client'sjustification for any potential discrimination in writing, so that you can relyon this justification if challenged. This is even more important forrecruitment agencies that receive potentially discriminatory instructions fromclients, as there is a separate provision in UK discrimination law specificallyprohibiting discrimination by recruitment agencies in the provision of theirservices. You may find the ACAS Guidelines on Age and the Workplaceuseful. You may also find helpful guidance on the former DTI's website and fromthe EOC, CRE and DRC.