March 6 2008 - The Government has announced that the adult minimum wage rate will rise from £5.52 to £5.73 an hour in October. The youth rate for those aged 18 to 21 will be increased from £4.60 to £4.77. The Government has also said that the rate for workers aged 16-17 years should increase from £3.40 to £3.53.

The National Minimum Wage was first introduced on 1 April 1999. The main rate was set at £3.60 (for workers aged 22 and over) and £3.00 (workers aged 18-21 years old).

Business Secretary John Hutton said:

“The National Minimum Wage remains one of the most important rights introduced by the Government in the last decade. Before it was introduced, some workers could expect to be paid as little as 35p an hour, our legislation has ensured that can no longer happen.

“I am proud of the minimum wage; it makes a real difference to the lives of many of our lowest-paid workers and protects them from exploitation. It also creates a level playing field for business and boosts the economy.”

Paul Myners, chairman of the Low Pay Commission commented: “This increase means that the minimum wage will have risen by 59 per cent since it was introduced in April 1999 - almost double the expected growth in prices over the same period. Despite many predictions to the contrary, job numbers in the industries most affected by the minimum wage have grown and grown significantly over the same period.”

The Government is also tightening up enforcement of the minimum wage with new measures, including:

•     A fairer way of dealing with national minimum wage arrears, calculated to ensure that employees do not lose out as a result of underpayment.

•     Tougher penalties for employers who break the law, increasing the maximum penalty for non-payment of the National Minimum Wage from £5,000 to an unlimited fine. Serious cases of non-compliance will be tried in a Crown Court.

Welcoming the announcement, TUC General Secretary Brendan Barber said:

“We welcome this increase in the minimum wage, which will benefit more than a million low paid workers.

“The Low Pay Commission was right to withstand pressure from business warning of economic trouble ahead. The truth is that employers will be able to absorb these sensible increases without too much difficulty.

“The LPC must continue to recommend the highest minimum wage increases that can be sustained as it provides very important protection for low paid workers.

“Bosses who fail to pay the minimum wage leave vulnerable workers in poverty and undercut the majority of employers who are happy to obey the law. Everybody stands to gain from making the minimum wage as robust as possible. We support the improvements to the enforcement regime that are currently going through parliament, and look forward to the introduction of tougher penalties for cheating employers and fair arrears for underpaid workers later in the year.”

Published: Personnel Management, August 28

The comparator plays a crucial part in a wide range of employment-related cases. But who exactly is the comparator? It all depends on why the question is being asked, says Olga Aikin

(Olga Aikin is a partner in the Aikin Driver Partnership)

When someone puts in a claim for equal pay, they need to compare their existing pay with that of someone else – the comparator. The same is true in discrimination claims and those for equal treatment for part-time and fixed-term contract work. Unfortunately, a different definition of ‘comparator’ is used for each type of claim.

Equal pay

A woman (for example) bringing an equal pay claim has to show that her terms of employment are less favourable than those of a man (Equal Pay Act 1970 S1). The man has to be doing like work - work which has been rated as being of equal value in a job evaluation or found to be of equal value by a tribunal.

As if that is not enough, they also have to work at the same establishment, or if they do not then they must have common terms and conditions. In Leverton v Clwyd County Council [1989] ICR 33 HL, the court held that the two individuals had common terms because they had been set by the same collective agreement.

It is possible to make a comparison with someone who works on the same site but for a different employer, so long as the two employers are associated with each other – for example, because one controls the other or both are controlled by a third party. But again, if the two people work at different sites they must have common terms and conditions.

Under Article 141 of the EU Treaty it is even possible for a claimant to choose a comparator working for a third party employer who is not associated with her own employer. But their employment terms must come from a common source, such as the same collective agreement or regulations.

The comparator can be the claimant’s predecessor in her job, since the terms and conditions of both are known and can be compared. However, it is not possible to use the employee’s successor as a comparator. This is because the comparator must be real and not hypothetical. So while the successor’s terms and conditions may be known, the terms on which the claimant would have been employed at the time of the successor’s employment are a matter of conjecture. This principle was established in Walton Centre for Neurology v Bewley (2008 IRLR 588 EAT).

It is possible for the claimant to make a scattergun claim using several different comparators as in Hayward v Cammel Laird Shipbuilders Ltd (1988 ICR 464 HL)

Discrimination – sex, race, religion and belief, age and sexual orientation

In discrimination claims the comparator must be doing similar work, have similar qualifications and be the same in other respects as the claimant – apart, of course, from their sex, race, religion, belief or sexual orientation.

Where there is no exact comparator a hypothetical one can be used. In Shamoon v Chief Constable of the Ulster Constabulary (2003 IRLR 285 HL), Shamoon, the only female chief inspector, was, following complaints, no longer permitted to appraise constables. She claimed discrimination, using her male colleagues as comparators.

However, her colleagues could not be compared ‘like for like’ with her. Her comparator had to be a male chief inspector whose appraisals had been also criticised, but there was no-one who fitted the bill. The Lords decided that in such a situation a hypothetical comparator should be used.

Discrimination - disability

There has been a seismic shift in respect of comparators in disability claims. In Clark v TGD Ltd t/a Novocold (1999 IRLR 318) the Court of Appeal decided on a simplistic approach: the comparator was a person who was not disabled. Clark had been dismissed following a long period of sickness caused by disability. The court held that an employee who was not disabled would have been working, would not have been absent and would not have been dismissed, whereas Clark had suffered discrimination. However, in London Borough of Lewisham v Malcolm [2008] UKHL 43 this view was rejected. The Lords insisted that the comparator had to be placed in the same factual situation as the claimant. The comparator would be a person who was not disabled but who had been absent for a similar period of time. If that person would also have been dismissed, there would be no discrimination.

Discrimination – pregnancy and maternity

The Sex Discrimination Act 1975 (Amendment) Regulations 2008 were introduced following a High Court decision that the UK’s sex discrimination rules did not comply with EU requirements. The regulations provide that a pregnant woman or one exercising her right to maternity leave has been subjected to discrimination if she would have been treated more favourably had she not been pregnant or exercising her maternity rights. In other words, she becomes her own hypothetical comparator

Part-time work

In order to take advantage of the beneficial provisions in the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, claimants must show that they are employed on the same type of contract as the comparator and do the same kind of work.

In Matthews & ors v Kent and Medway Towns Fire Authority [2006] IRLR 367 HL, the Lords took a very wide view of the type of contract that could be used. Both full and part-time fire fighters were engaged on permanent contracts, so they were on the same type of contract. The Lords were not concerned with differences between the actual contractual terms. Turning to the work itself, they insisted that there should be a consideration of similarities rather than differences. The part-time firemen fought fires. The main job of the full timers was also to fight fires, so their work was the same.

In addition, the comparator must work at the same establishment as the claimant. However, if no comparator can be found there, a comparison can be made with someone at a different establishment.

There cannot be a hypothetical comparator, nor one working for a different employer in claims brought under the part-time workers regulations.

Fixed term work

All the provisions for comparators in part-time claims also apply to those brought under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.

A predecessor cannot be used as a comparator in these claims. The comparator must be a current employee.

Agency workers

Agency workers do not yet have the right to claim equal treatment with their permanent counterparts, but change is on the way. If the European temporary agency workers directive is changed so that these workers become entitled to the same terms and conditions as permanent employees, which seems likely, then there will be yet another type of comparator. Is it too much to hope that this time the definition will be clear and simple?

Anna Scott

Publication date: 27 August 2008

Source: People Management magazine

Firms are missing out on business because bosses haven’t got the time or skills to manage talent, research has revealed.

Half of the HR managers surveyed in the Hewitt Talent Survey 2008 said they had lost out on business opportunities because talented employees hadn’t been effectively managed.

Of the 240 firms polled, 84 per cent said managers didn’t have the time to manage talented staff, and 60 per cent thought managers didn’t have adequate skills.

The survey shows an increase in commitment to talent management, with 88 per cent of respondents thinking that talent had become a top strategic priority for senior managers, up from 53 per cent in 2006.

But over half of the HR managers (55 per cent) said they had not seen their talent strategy reflected in decisions made by line managers.

“Talent strategies are simply not filtering down to line managers,” said Nick Warren, head of talent consulting at Hewitt Associates.

“Amid a challenging economic environment we have seen a renewed interest in talent management as companies seek to secure competitive advantage. But companies and HR departments need to work much harder on implementation,” he added.

 A gifted young Manchester United footballer whose career was ended by a “devastating” tackle has been awarded an unprecedented £4.5m in compensation, despite never having played a first team match.

 Benjamin Collett, a gifted  Manchester United youth footballer was awarded £4.5m after career-ending tackle. Ben Collett was highly regarded at Old Trafford until he suffered a serious injury, Benjamin 23, could have enjoyed a top-class career and earned millions of pounds had his right leg not been broken in two places by the “over the ball” tackle he suffered during a reserve team game when aged 18, the High Court in London heard.

The tackle, from in a game against Middlesbrough came as a “devastating blow” to Mr Collett, who had won an award for his outstanding contribution to Manchester United’s victory in the 2003 FA Youth Cup, the judge, Mrs Justice Swift said.

Describing Mr Collett as “a most impressive young man” at school and on the pitch, Mrs Justice Swift said that he had shown the ability and strength of character to play at the highest level throughout his career.

 She found that Mr Collett was about be offered a three-year professional contract with Manchester United when he sustained the double leg break in May 2003.

Speaking at a previous hearing, Sir Alex Ferguson, the Manchester United manager, said Mr Collett, who joined the club’s Youth Academy which also produced International stars David Beckham, Paul Scholes and the Neville brothers, at the age of nine had an “outstanding chance” of becoming a top professional before he was injured.

Mrs Justice Swift said that Middlesbrough FC’s parent company and Mr Smith had admitted negligence.

 She awarded Mr Collett about £4.3m, including more than £4m for loss of earnings due to the premature end of his footballing career. At a hearing in October to determine Mr Collett’s loss of pension and interest payments, the total is likely to rise to no less than £4.5m, she said.

 Mark Gay, a leading sports lawyer from DLA Piper, said: “He’s hit the jackpot, really. He was a very young player, at a very good team, with a very good prospect of becoming a top player and possibly an international player. “In terms of precedent, this sees the common law principles of personal injury applied to the football pitch. Say I was a banker earning £10m a year, and you ran me over. Your negligence would be the same as if you’d run over anyone else, but if my ability to keep earning £10m is ended, you could be left with an enormous payout.

 In a statement read after the hearing, Mr Collett’s solicitor, Jan Levinson, said he and his family were happy the case was coming to a close and that Ben could move on.

 25 July 2008 13:35

The ruling in the recent Coleman v Attridge Law case has major repercussions for HR directors and managers who should amend some key policies now, writes Ed Williams, employment law barrister at Cloisters.

The European Court of Justice recently ruled that anti-discrimination laws that protect disabled people in the workplace also cover their carers as well. The decision will prevent an employer discriminating against an employee on the basis of another person’s disability.

The magnitude of the ruling may not be immediately obvious. Associative discrimination on grounds of sexual orientation, religion and on racial grounds is, after all, already unlawful in the UK.

What may cause a collective shudder to ripple across the HR community is when one looks at the numbers that will be affected by this decision. Almost overnight, the 2.6 million workers which the government estimates are also unpaid carers, may now be able to claim disability discrimination under the EU’s Equal Treatment Framework Directive. And with any claim for compensation uncapped, the result could be very costly for discriminating employers.

For those hoping that the word ‘almost’ signifies some kind of partial reprieve or a welcome delay in the implementation of the ruling, this isn’t the case - or at least not entirely so.

Public sector employers need to comply immediately. Teachers, nurses, local government workers etc can, with immediate effect, rely directly on the directive and the Coleman judgment. Expect claims to be lodged in the next few weeks and months.

For those in the private sector, however, it may take slightly longer to make a successful claim. For the decision to apply to private sector workers, current disability legislation (the Disability Discrimination Act 1995) needs to be reinterpreted by the courts or even amended by Parliament.

But it shouldn’t be forgotten that this case started in the private sector. The claimant, Sharon Coleman, worked for law firm Attridge Law. And she, and others like her, could take the government to court for failure to implement the directive properly.

In the circumstances, it would be unlikely that the government would wait too long before taking action to ensure UK legislation complies. The forthcoming Single Equality Act may well prove to be an ideal mechanism for such amendments.

Therefore all employers - in the public and private sector - would do well to revisit their policies and procedures in light of this decision. Particular attention should be given to ensuring that equal opportunity, anti-harassment, anti-discrimination and absence policies comply, and that they have a clear understanding of who may be affected by this change in the law. This should be done sooner rather than later.

Employers should also consider how their flexible working policies will be implemented. Parents of young and disabled children and carers of adults already have a right to request flexible working, but this ruling now gives a carers’ challenge against an employers’ decision far more teeth.

Employers should also consider their equal opportunities policies in the context of associative age discrimination, which is now covered as a result of this ruling, and ensure compliance with existing laws against associative discrimination in terms of sexual orientation, religion and on racial grounds.

But, as with all these things, an updated equal opportunities or flexible working policy will mean nothing if poorly implemented. Reinforcing the message to staff about the costly implications of inappropriate tea-room banter or watercooler gossip has never been more important. It is true. Careless talk costs.

Key points

•     A person who is not protected on grounds of disability, age, sexual orientation, race and religion can be discriminated against on these grounds if they are closely associated to a person who is so protected.

•     Associative discrimination on grounds of sexual orientation, race and religion is unlawful in the private and public sectors already.

•     Associative discrimination on grounds of disability and age is now unlawful in the public sector. It will be unlawful in the private sector in the future.

•     Employers should take immediate steps to ensure their equal opportunity policies reflect this clarification of European Law.

Ed Williams