Legal News From Aidan Loy You heard it here first!

Prior visitors to this site will have been aware of our skepticism regarding the Government's proposals to allow both parents to share an enhanced maternity/paternity leave provision, divided between make and female. This would, on the surface, have created difficulties for employers in dovetailing arrangements for two employees, usually each working in a different location.

In actuality, of course, this would have made no real difference to the situation now, except for the novelty of males applying for this. In fact, although most females would probably have wished to retain the bulk (or totality) of leave, the fact that responsibilities could be shared would probably have reduced pressure on employers and, most certainly, reduced the increasing prevalence of (usually female) HR Directors to quietly shy away from employing young women, under the law of unintended consequences. However, Government has, as Government does, picked a superficially popular line with business, at no cost to itself. The official position now is that equalisation is still an "aspiration", although no timetable has been set. For those wondering when such an aspiration is to be realised, our advice would be not to hold your breath.

Expenses – and the Honourable Fiddling Thereof

One would have needed to have been deaf, blind or even dead not to have been aware of the furore over what is euphemistically termed the scandal over MPs expenses. Many people cannot understand how this has been allowed to develop, and why Police action has not supervened before now. The short answer is that, in breach of a famous common law principle, that no man should be a judge in his own cause, or here be “self-regulating”.

As businesses will know, perhaps the most serious example of misconduct in the workplace is theft. In almost all cases it will lead to dismissal for gross misconduct; not surprisingly as once a dishonesty offence has been committed it is all but impossible to restore the bond of trust between employer and employee.

Having said that, it is never a foregone conclusion and even in cases which appear clear cut, proper procedure should always be followed and the accused individual given every opportunity to defend themselves. The temptation to dismiss staff and frogmarch them to the door is strong, but unless relevant evidence is produced, and a fair procedure followed, a Tribunal claim could result. Even if such claims can be defeated it will however have attendant legal costs which can often, at £20,000 to successfully defend a claim, outstrip any potential compensation. So, as a rule of thumb, the seriousness of the offence never obviates the need for proper procedure.

Simply insisting, as MPs have been doing, that “everyone else was doing it” and “I’ll pay it back” are advanced as excuses in every case of workplace fraud. Even if they are true, it does not alter the act in any way, shape of form. Such please will not save the guilty individual and, of course, criminal prosecution may follow.

So why, then, does this not apply to Honourable Members? Because they have been in the delightful position of writing their own rules. As part of the Income Tax (Earnings and Pensions) Act 2003 the Chancellor (one G Brown) inserted exemptions for special categories of employees – in this case MPs and Government Ministers. The now infamous second home exemption and “flipper” (not a dolphin) constitutes section 292. In addition to this, the “interpretation” of the Act falls under the House of Commons Green Book most recently revised by…………..Speaker Michael Martin (remember him?). It is this combination which was used to browbeat the supine fees office and Members’ very own tax office in Cardiff, Public Department No 1. Handy that if even the taxman works for you.

So whether or not any prosecutions result will rather depend upon the political will of those involved. Informal rules cannot, of course, oust the law, criminal or otherwise. However as the authorities may be faced with hundreds of potential fraudsters they may decide not to decimate the legislature. But then again…………….

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