Exporting Ex-Pats

The highest Court of Appeal in the United Kingdom, the House of Lords, recently handed down a long awaited Judgment on geographical extent of employee rights under the Employment Rights Act 1996. The Appeal arose out of claims by employees for unfair dismissal in respect of work that was partly or wholly carried on outside Great Britain.

Their Lordships opined that the phrase “employment in Great Britain” should be treated as a general principle rather than a firm rule to be protected and applied – it was not enough to secure the Employment Rights Act protection to be based in Great Britain and for the employee to be British without something more.

Examples of:

• an employee posted abroad by a British employer for the purposes of the business carried on in Great Britain; and
• an expatriate employee of a British employer who operated an extra territorial British enclave in a foreign country

Were all held to attract protection if they could still show a strong connection with Great Britain and British employment law.

Where employees, through the nature of their work, do not perform services in one territory it was viewed to be prudent to treat their base as the place of employment.

It is clear that this Judgment is important for those employers with expatriate employees or peripatetic employees with a base in the UK. The Judgment reinforces that whether an employee enjoys the protection of the Employment Rights Act is one of fact in each individual case.

BLACKBERRY BLUES

It is well known that an employer has a duty under the law to ensure, so far as reasonably practicable, the Health & Safety of workers at work.

The use of PDAs at work and other data management devices are becoming increasingly common and a valued means of business communication.

Ergonomic specialists have warned of the danger of ‘Blackberry Hand' and ‘Blackberry Thumb' and even the American ABC News Network reported on the Hyatt Group offering ‘Blackberry balm hand massage' to affected users as a therapy on their spa menu.

Needless to say, no studies have supported the concern of “Blackberry Hand” or “Blackberry Thumb” and manufacturers are at pains to point out that concerns are theoretical and professionals have yet to encounter actual cases. Nevertheless Orthopaedic specialists and Ergonomic experts claim that the condition is actually DeQervains Tendonitis which is an inflammation of the tendons along the thumb side of the wrist. It was first observed in washer women over a hundred years ago and was then known as “Washer Womans' Thumb” – so much for the technology!

The thumb is not designed for fine manipulation or the dexterous work that fingers are adapted for. In respect of the use of PDAs and Blackberries, the grip required to hold the device securely enough to be depressed is said to risk soft tissue damage.

The development of mobile phones with text messaging facilities, computer games and finally PDAs has lead to the continuation of Washer Womans' Thumb, now more trendily known as Blackberry Thumb, with users spending hours on Blackberries and iPods each day.

Any handheld electronic device may require repetitive motion with a small movement and this together with the anatomical limitations of the thumb leads to potential health and safety considerations for employers. Beyond the anatomical issues, some opticians believe that the devices also may cause eye strain because of the small font size and lighting conditions which users may tolerate which they would not in normal circumstances.

Given that there are no studies on the subject nor any confirmed cases – what is a prudent employer to do? It is sensible for HR Departments to consider the following steps:

• carrying out risk assessments of user groups;
• create a policy informing and training employees about steps to be taken to minimise the risk to themselves and indeed other users such as
  • wherever possible use a landline or desktop PC;
  • do not use when driving;
  • keep messages short and limit the length and number of messages sent in a day;
  • exercise the hands in accordance with routines recommended by Ergonomic Experts;
  • take regular breaks;
  • switch hands whenever possible;
  • look away to adjust the focus

In addition to risk assessment and a policy, it is sensible to train users on appropriate use including the use of shortcuts and templates.

One matter that cannot be covered in the policy is the risk of Spousal Abuse caused by overuse of the Blackberry! Anecdotal reports suggest that spouses and family members can become enraged when the device is overused at family occasions and on holidays – happily this is not something which (at present) the law will hold employers responsible for!

GRAPEVINE WATCH

It appears HM Revenue and Customs are revisiting that old chestnut of taxation of termination payments.

Some employers automatically make payments representing a payment in lieu of notice tax free where the employment contract contains no provision for a payment in lieu of notice. (PILON). The Revenue is taking a tougher line and employers are being required to show that non-contractual PILONs have been individually negotiated.

Employers should therefore take special care to make detailed contemporaneous notes of settlement negotiations to support the stance that the payment should be tax free.

RADAR WATCH

On 1st February 2005 the compensation limits increased in the Employment Tribunals in the UK.

The maximum compensatory award is now £58,400, and the statutory maximum weekly pay for calculation of the basic award and statutory redundancy pay has increased to £290.