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Stories related to employment law are in the news on a regular basis. We take a brief look at some of the more interesting stories that people have been talking about.
A Scottish employment tribunal has recently awarded over £26,000 compensation (including £6,000 injury to feelings, £16,129 for future loss and £2,779 for failure to comply with the ACAS Code) to a male employee who brought a claim of indirect sex discrimination in respect of the shared parental pay policy in Snell v Network Rail Infrastructure Ltd.
Please click here to read the full article.
The Court of Appeal has confirmed in the latest decision in British Gas v Lock that the Working Time Regulations can and should be interpreted in line with EU law by adding in words, as the tribunal did, so that results-based commission is included in holiday pay.
The Court did not address the issue of what might be an appropriate reference period for calculating holiday pay so this issue is still very much outstanding.
The decision was not unexpected. British Gas may, however, appeal to the Supreme Court so there is still uncertainty for employers.
It is often difficult to assess at what level injury to feelings compensation will be awarded. There are three potential bands of award depending on the severity of the discrimination, but where any particular case sits is not always simple to determine. Please click here to read the full article.
For some time now it has been clear that all elements of pay that are regularly made should be included in holiday pay so as not to deter individuals form taking holiday. On the periphery of the decisions to date has been the issue of genuinely voluntary overtime, and whether this should also be included. A recent employment tribunal decision has found that it should. Please click here to read the full article.
It has long been established that the purpose of the disability discrimination provisions is to enable disabled employees to play as full a part as possible in the world of work, but not to treat them as objects of charity. The recent case of G4S Cash Solutions v Powell may cause some concern for employers as, apparently contrary to this principle, it was found that pay protection may be a reasonable adjustment. Please click here to read the full article.
In many ways this decision is obvious, but it is still good to have the ECJ confirm it! The purpose of the Equal Treatment Framework Directive and the Equal Treatment Directive is to protect those in employment or seeking employment. An individual who is found to have only applied for a job in order to ring a claim cannot be said to be seeking employment, and is therefore not protected.
From April 2017 larger employers (with a payroll of £3 million or more each year) will have to pay an apprenticeship levy of 0.5% of their pay bill. It is estimated that this will actually only affect about 2% of employers. Please click here to read the full article.
The report issued today by the Institute for Fiscal Studies shows a 33% pay gap between women who have taken time out to have children, and their male colleagues. This is against an average pay gap between men and women generally of 18%. It is not as simple however as finding one reason for this disparity and trying to resolve it, the issue is far more complex. Please click here to read the full article.
The government has published its response to the consultation on how termination payments should be treated for the purposes of tax and National Insurance contributions (NICs) from 2018. Please click here to read the full article.
Most people would agree that circumstances that create the potential for an increased risk to children in the care of a school should immediately be notified to the school’s governing body. The judgement call on whether this potential exists is, however, not always straightforward to assess.
What if a head teacher has a close relationship with (but is not the partner of, nor living with) someone who has been convicted of downloading indecent images of children? A recent Court of Appeal decision [A v B and anor  EWCA Civ 766] indicates that there is an obligation in these circumstances to notify the Governors of such a relationship, whether or not the individual has ever actually visited the school and whether or not there is an identifiable risk to the children at the school as a result of the relationship. This is arguably a broader obligation than most schools will previously have anticipated. Please click here to read the full article.
Please click here for ACAS’s holiday guidance which includes FAQs on the amount of time employees can take off during the school summer break, whether a flexible working request can cover just the school summer holidays and whether someone has the right to take time off if their childminding arrangements break down.
Nick Hurley takes a look at the options for employers on discovering that an employee has been dishonest during the recruitment process and what their potential liabilities could be. Please click here to read the full article.
According to NGO reports, many businesses may be leaving it until the last minute to make statutory disclosures required by the Modern Slavery Act 2015. Paul Henty takes a look at enforcement of the Act and steps being taken to reinforce its provisions. Please click here to read the full article
Acas, has launched new guidance to help employers prepare for potential issues that could arise during the 2016 Olympics Games in Rio. This covers planning, flexibility, time off, sickness absence, use of social media and websites and drinking policies. Please click here for the full guidance.
The Advocate General has given her Opinion in the second case before the European Court of Justice on whether a ban on wearing an Islamic headscarf (hijab) in the workplace is discriminatory and can be justified. Her view is that dismissing an employee because a customer’s employees found her hijab “embarrassing” was directly and indirectly discriminatory and could not be justified. Please click here to read the full case report.
On 13 July we recorded a webinar on the employment, pensions and immigration implications for employers of Brexit. Please click here to access the recording and slides.
Robert Bond, Partner, takes a look the steps employers need to take to protect their trade secrets in preparation for implementation of the Trade Secrets Directive by 2018. Please click here for the full article.
In the joint cases of Onu v Akwiwu and Taiwo v Olaigbe the main issue before the Supreme Court was whether discrimination on the grounds of immigration status amounts to discrimination on the grounds of nationality. The cases involved two domestic migrant workers who were treated appallingly by their respective employers. The Court noted that immigration status is not on the list of protected characteristics in the Equality Act and that Parliament could have included it but had chosen not to do so. It held that although immigration status is a function of nationality, it is not the same as nationality for the purposes of a race discrimination claim. Please click here for the full article.
In July 2013 a new provision was introduced to the Employment Rights Act 1996 which provides that evidence of pre-termination negotiations is inadmissible in claims of ordinary unfair dismissal.
The EAT in Faithorn Farrell Timms LLP v Bailey has now given its first decision on the scope of this provision. It clarified that the fact negotiations have taken place, as well as their content, is inadmissible and internal discussions between different managers and HR are included. The EAT confirmed that privilege under this provision could not be waived, and finally, when the tribunal is determining whether an employer’s conduct amounts to ‘improper behaviour’ (which would render discussions admissible) this is to be construed broadly. It is a helpful decision for employers although it remains to be seen how widely “improper behaviour” will be interpreted. To read the full article on this case, please click here
At the recent British Medical Association conference, Medical professions recommended that workers should be able to sign themselves off for sick leave for up to 14 days. Under the current law, a worker cannot be required to obtain a fit note from a doctor until after 7 days. We examine what these proposals might mean for employers. Please click here for full article.
The vote to Brexit leave the UK with a huge amount of uncertainty, but one thing is clear: there is potential for significant change for employment relationships. Please click here to read article on the implications for employers.
The introduction in 2013 of employment tribunal fees has been controversial from the start. As a result it is being challenged in court proceedings and reviewed in two inquiries: one by the Government and the other by the House of Commons Justice Committee. The Government was due to publish its report at the end of 2015 but six months on has yet to do so. However, the Justice Committee has now published its findings. Please click here to read about the Committee’s report.
We take a look at topical cases on different aspects of religion in the workplace which include dismissal for refusing to remove a veil or headscarf and indirect discrimination because of a belief in the sanctity of marriage. Please click here for a link to the full article.
The Psychoactive Substances Act came into force on 26 May 2016 which makes it an offence to supply or produce any psychoactive substance (which covers so-called legal highs) and is punishable with up to seven years in prison. While possession isn’t in itself an offence, as these substances have the same effect as illegal drugs, employers are well-advised to ensure that their substance misuse policies prohibit their use at work. These drugs have mind-altering properties which could have a significant impact on an employee’s behaviour, lead to impaired judgment and decision-making and increase health and safety risks in the workplace.
In the last few years we have seen an increase in the number of claims being made by employees due to mental health problems. Alan Julyan looks at the steps employers can take. To read the full article please click here.
There have been two recent decisions from the EAT, in T-Systems v Lewis and Risby v London Borough of Waltham Forest, on the test to establish a claim of discrimination arising from a disability. Emma Bartlett takes a look at the implications. Please click here to read the full article.
Employers should tread cautiously when raising potential performance issues with an employee on sick leave with work-related stress. In Private Medicine Intermediaries Ltd & Others v Hodkinson the EAT considered whether an employer was in repudiatory breach of contract when the CEO wrote to an employee who was off on long-term sick leave about concerns that were not serious or urgent. Please click here for Emma Bartlett’s case report.
In Smith v Gartner the EAT looked at whether an employer was liable for direct age discrimination when payments to an employee under a PHI scheme ceased when she reached 60. David Green looks at the implications of this decision please click here.
In Gallop v Newport the EAT confirmed there is no scope for imputed knowledge for direct discrimination. Please click here to read the full case report.
The Conservative party manifesto pledged to bring an end to “disruptive and undemocratic strike action”. The plan to achieve this included higher balloting thresholds, the repeal of the ban on using agency workers during strikes and imposing a time limit for strike action voted for in a ballot to actually take place. The end result, The Trade Union Act 2016 (the Act), has resulted in a watered down version of the Government’s aims, but still potentially makes significant inroads on the “right to strike”.
To read more click here
The Department for Business, Innovation and Skills has announced that it will be asking for evidence on whether employment rules, and in particular non-compete clauses, are stifling opportunities for start-ups and entrepreneurial businesses to innovate and grow. The call for evidence is due to be launched shortly and will be asking for views from individuals and employers on this issue.
23rd June 2016 is the date set for a referendum on the UK's membership of the European Union. Much of the UK's employment law currently in force was enacted in response to EU legislative requirements - so what might an 'out' vote mean for employment law?
An employee who "pulls a sickie" in order to avoid attending work, would be considered "dishonest" and potentially in "fundamental breach of trust and confidence that is at the heart of the employer/employee relationship" according to a recent Employment Appeals Tribunal.
Determining the fairness of dismissals for employees untruthfully claiming to be unfit for work may just have got easier.
Debates over religion often become heated and the line between manifesting a belief and proselytising can be blurred. What is clear is that disciplining an individual simply for manifesting their belief at work would be likely to be unlawful, whereas disciplining someone for improperly promoting their belief, would not.
Last year the Government consulted on simplifying the tax treatment of termination payments and it was widely anticipated that the outcome of that consultation would play a part in today’s budget. The Chancellor’s announcement was, however, more limited than anticipated and, as yet, the response to consultation document has not been produced. As it stands, the only change will be that from 2018, employer NICs will be payable on the portion of a termination payment that exceeds £30,000.
Employers will welcome the two year lead in time to prepare any changes in approach to negotiating termination payments, given the increased tax burden they face.
HMRC guidance states that salary sacrifice child care vouchers should continue to be provided during maternity leave. The Employment Appeal Tribunal has however found this guidance to be wrong in a decision which will be welcomed by many employers (Peninsula Business Services Ltd v Donaldson).
The EAT found that, although described as a salary “sacrifice” scheme, it was actually a diversion of salary in order to purchase vouchers, rather than a “sacrifice” of salary. When looked at this way, the voucher should be seen as part of remuneration, which can properly be discontinued during maternity leave; rather than as a non-cash benefit, which should continue. The EAT thought that to view this in any other way would provide both a windfall to those on maternity leave, and potentially discourage employers from offering such a scheme altogether. This would have a detrimental effect on mother’s returning to work, as the scheme assists with childcare costs through tax advantages.
It is not clear whether this will be appealed, but employers currently following existing HMRC Guidance may want to review their policies. Unravelling existing arrangements would need careful thought however and may prove difficult, so advice should be sought.
The Supreme Court has made it easier for victims of assault or injury to claim against the “employer” of the wrongdoer as a result of its’ decisions In Cox v Ministry of Justice and Mohamud v WM Morrison Supermarkets.
Ms Cox was a catering manager in a prison and was accidentally injured by one of the prisoners (who dropped a sack of rice on her back). In finding the MOJ vicariously liable for the injuries, the Supreme Court found that the most significant elements in proving vicarious liability are whether the harm is done by a person who carries on activities as an integral part of the business activities of the defendant; and whether the risk of the wrongful act occurring was caused by the defendant in assigning responsibility to the wrongdoer. Clearly this extends the scope of vicarious liability beyond the pure employer-employee relationship
In the second case, Mr Mohamed was assaulted by an employee of Morrisons at one of their petrol stations. The Court of Appeal had found that although the assault took place at work while he was on duty, that in itself did not create a close enough connection. The Supreme Court however, whilst agreeing that there needed to be a “close connection” for employer vicarious liability, found that two elements needed to be considered: what was the nature of the employees role, and was there a sufficient connection between the employees position and the wrongful act to make it appropriate to hold the employer liable. Here, the employee was acting within his “field of activities” and it was therefore right that the employer be held responsible.
Whilst the “close connection” test for employer/ employee vicarious liability has been applied for a number of years, this extends that test to cover situations where, despite a gross abuse of position, if the employee is acting “in the field of activities” assigned to him, the employer can be held liable for his wrongdoing.
Employers will be disappointed to learn that the EAT has dismissed the appeal in Lock v British Gas. Following a referral to the ECJ which found that results-based commission should be included in holiday pay, the employment tribunal held that it was possible to add words into the Working Time Regulations so that it conformed with EU law. In doing so the tribunal took into account the EAT’s decision in Bear Scotland v Fulton.
British Gas appealed on the grounds that it was not permissible to imply words into domestic legislation and that the EAT’s decision in Bear Scotland was wrongly decided and is distinguishable because it deals with non-guaranteed overtime not commission. However, the EAT disagreed and the appeal was not upheld. It is not yet known whether there will be a further appeal by British Gas.
Employers who have adopted a wait and see approach and are not currently including commission in holiday pay would be well-advised to review this tactic going forward. Although since July 2015 it is only possible for workers to make claims for backdated payments going back two years, it is important to consider whether to make changes to payments now to limit potential liability sooner rather than later.
The Government has today published its long-awaited regulations on the gender pay gap reporting requirements which are being consulted on until 11 March 2016. These will apply to all employers in the private and voluntary sectors with at least 250 employees. Although originally expected to be effective from Spring 2016, the regulations will not come into force until 1 October 2016 at the earliest. In April 2017 employers will be required to take a preliminary snapshot of their pay data from a specific pay period and then have a further 12 months until April 2018 in which to analyse and then publish the required information for the first time.
Employers will be required to report on:
The information must be published annually on the employer’s own website (and remain there for 3 years) and also on a government-sponsored website. Further Government guidance will be provided this year to help employers implement the regulations and at the moment there is no intention to create additional civil penalties for breach.
The advice to employers is to take advantage of the longer than anticipated time to prepare by auditing their pay structures to identify any potential problem areas and considering and implementing any changes needed in advance of April 2018.
This case resonates recent employment appeal tribunal decisions where employers have failed to properly consider the impact of an employee’s medical condition on their performance at work, either relying too heavily on inadequate doctors reports without applying their own knowledge of the employee’s condition or failing to make reasonable enquiry themselves. The Employment Tribunal in this case found that Starbucks wrongly accused the employee (Meseret Kumulchew) of “fraud” for “falsifying documents” when in fact she had made a mistake because of her dyslexia, of which the employer was aware. Starbucks had failed to make reasonable adjustments when investigating inaccuracies in her work. While dyslexia is a common learning difficulty, not all employers have a good understanding of what that can mean and was adjustments could reasonably be made to put the employee on a par with work colleagues. It is better for employers to encourage employees to discuss their conditions and any adjustments which might be required, than to turn a blind eye to the impact of medical conditions that they are aware of, or ought reasonably be aware of.
With less than two months left until the introduction of the NLW employers are urged to take urgent action to ensure compliance with the new rules. The new National Living Wage (NLW) is due to be introduced on 1st April 2016 for all working people aged 25 and over, and will be set at £7.20 per hour. Despite its imminent introduction, a recent survey by Jelf Employee Benefits has highlighted that many employers have failed to anticipate what is needed to prepare for and ensure full compliance with this new law particularly where they have salary sacrifice arrangements. This is an agreement between an employer and an employee to change the terms of the employment contract to reduce the employee's entitlement to cash payment. This sacrifice of cash entitlement is usually made in return for some form of non-cash benefit, avoiding both income tax and national insurance. Under the new rules, salary sacrifice arrangements must not reduce an employee’s income below the new NLW otherwise the employer will be in breach. Despite this, 40% of the 180 employers surveyed said they were not aware of this and only 9% had considered and resolved the salary sacrifice implications.
An employer’s responsibility to police workplace bullying has been underlined following the Court of Appeal decision of 1 February 2016. The employer (an NHS Foundation Trust) was liable for detriment suffered by one its employees on grounds related to union membership. The employer had failed to deal with members of one trade union bullying a colleague who was a member of a new trade union. It was found that the employer’s reluctance to intervene was motivated by its desire to weaken or marginalise the new union. Whereas the employer had taken an apparently neutral line in the union spat, the “weak and lamentably ineffective conduct” of management was a “dereliction of duty” towards its employee.
Employers are now encouraged to increase awareness of the potential issues faced by transgender staff at work. The importance of recognising transgender rights and addressing transphobia issues has been highlighted recently in the film “The Danish Girl” starring Eddie Redmayne as the transgender artist Lili Elbe and by the musician, Antony Hegarty, the first transgender person to be nominated for an Oscar in 30 years. As it is estimated there could be as many as 500,000 transgender people in the UK, employers should take note and implement policies and raise awareness so that transgender rights are respected and protected within the workplace.
The government has already taken steps to give guidance to employers on this important issue. In November 2015 the Government Equalities Office published “The recruitment and retention of transgender staff: guidance for employers” which aims to be a useful guide for the managers of trans staff and for trans employees themselves.
On 14 January 2016 the Women and Equalities Commons Select Committee released a report on transgender equality which sought to address a number of issues faced by the transgender community in the UK. It includes suggested amendments to the Equality Act 2010 to address outdated concepts such as a recommendation to change the protected characteristic “gender reassignment” to “gender identity” which will widen the scope for transgender employees to be able to bring discrimination claims. Another recommendation is that the official recognition of gender is based on self-declaration, rather than medical assessment, so that those who have not had gender reassignment surgery are also protected. These recommendations have been welcomed by the transgender community and it is anticipated that they will be adopted.
To read the Transgender Equality Report in full, please click here.
To read “The recruitment and retention of transgender staff: guidance for employers”, please click here.
Employers and labour leaders will need to prepare themselves for the “fourth industrial revolution”, which, according to the World Economic Forum (WEF), will cause widespread disruption to business models and labour markets over the next five years. It is anticipated that women will be the biggest losers as they are less likely to be working in areas where the adoption of new technology will create jobs, as a result women are likely to lose five jobs for every one created.
According to WEF, “it is our actions today that will determine whether that change mainly results in massive displacement of workers or the emergence of new opportunities. Without urgent and targeted action today to manage the near-term transition and build a workforce with futureproof skills, governments will have to cope with ever-growing unemployment and inequality, and businesses with a shrinking consumer base.”
Over seven million people are expected to lose their jobs over the next five years as developments in the fields of robotics, artificial intelligence and nanotechnology (amongst others) radically alter the workplace.
As you will be aware from our reports last year, we have been waiting for the Court of Appeal to hear the “woolworth” case on collective redundancies. Employers will be pleased that following the reported settlement of the case “establishment” is the location / site at which the employees work. This means that the collective consultation obligations are only triggered if 20+ are to be made redundant at one site in a 90 day period, rather than over the whole of the employer’s business, making it less likely that the obligation is triggered when there are multi site redundancies.
The case was due to be heard in the Court of Appeal, following the ECJ ruling last year, but settled by consent with the parties apparently accepting that the UK legislation is compliant with EU provisions, bringing some welcome certainty for businesses. There is however a note of caution as those considering redundancies still need to carefully examine whether multi sites are in fact separate for these purposes. So, whilst helpful, there are clearly still risks that shouldn’t be ignored.
The key for employers is to review their communications policies to ensure they restrict the use of company systems to company use. With the right policies in place, this judgement gives employers greater rights to monitor both the existence and content of “private” communications to ensure workers are spending their time at work, working.
Mr Barbulescu was sacked in 2007 for sending private messages from a company computer. He had set up the Yahoo account at his employers’ request, but was banned from using it for personal reasons. He complained that his right to privacy had been breached, but the Court found that it was not unreasonable for an employer to want to verify that employees are working during working hours. A balance must however be struck between the rights of workers to privacy, and the employers rights, so this is not a green light to simply monitor and read all communications.
In reality, employees commonly use their employers’ systems (eg email, telephone, messenger) for private communications and most employers will have written policies providing for the monitoring, which may already extend to banning use of them for private purposes. Employers that retain the right to monitor such communications may now however also monitor the content of the conversations themselves, to enforce rules against the unauthorised use of work systems.
Acas has published a report identifying expected trends in the workplace in 2016. The report features commentary from a range of employment experts including Acas Chair Sir Brendan Barber.
According to Barber, “the new national living wage, Trade Union Bill, workplace bullying, the UK's continuing productivity challenge and the changing nature of work such as the increase in the use of zero hours contracts are likely to feature prominently in the year ahead.”
Many of these themes have aroused strong feelings in recent months. In particular, the Trade Union Bill looks set to transform laws on industrial action. On this, Barber explains that, “whatever the impact, good communication will be vital to managing the new relationship between employers and trade unions and employee representatives.”
To read the Acas report in full, please click here.
The Department for Work and Pensions has announced that the UK employment rate reached a new record high of 73.9% for the period from August to October 2015. 22.88 million people are now in full-time employment; 338,000 more than for the previous year, while the number of people in part-time work has also increased significantly to 8.42 million.
According to Employment Minister Priti Patel, “Today’s figures show half-a-million more people in work compared to this time last year, which means hundreds of thousands of families are going into the festive season with the security and hope for the future that work brings.”
For the same period though there were 625,000 unemployed 16 to 24 year olds, and so this figure remains proportionally high when compared with older age groups.
Read the full report from the Office for National Statistics here.
More than four in ten disabled people looking for work found that misconceptions around their capabilities were the biggest hurdle to securing a job. To tackle this, Acas has published a new guide to help employers identify and prevent disability discrimination in the workplace.
Acas Head of Equality, Steve Williams, said:
"Research shows that employers with a diverse workforce can reap many business benefits as they can tap into the knowledge and skills of staff from a wide range of backgrounds."
"Our new guidance covers the different types of disability and practical steps on how to prevent discrimination and deal with it if it happens."
To read Acas’ recommendations in full you can access the new guide here.
The Chancellor of the Exchequer has delivered his 2015 Autumn Statement and Spending Review to Parliament, detailing his spending plans for the coming years.
Key Employment changes include:
Taxation of employee benefits.
Tax-free childcare scheme.
Reform of public sector employment.
Modernisation of the courts and tribunals system.
A recent study published by Acas (Advisory, Conciliation and Arbitration Service) has found that workplace bullying in Britain remains a persistent problem, with many too afraid to complain about it.
The Acas helpline has received around 20,000 calls related to bullying and harassment over the past year, revealing barriers to people making complaints at work such as inexperienced and unskilled employers. The study recommends that workplaces agree standards of acceptable and unacceptable behaviours and senior leaders act as role models for these standards.
The failure to tackle bullying at work is proving costly for British business. According to Acas Chair, Sir Brendan Barber, "businesses should be taking workplace bullying very seriously as the annual economic impact of bullying-related absences, staff turnover and lost productivity is estimated to be almost £18 billion."
To read the policy discussion paper published by Acas, please click here.
Research by the UK Commission for Employment and Skills (UKCES) has found that women are paid less than men in 90% of workplaces.
Despite female students outperforming their male counterparts at all levels of education, women continue to be paid substantially less in almost every area of the workforce. On average men were paid 19% more than women, with significantly larger pay gaps existing in the financial, insurance and energy sectors.
UKCES assistant director, Dr Vicki Belt, blamed occupational segregation for the persistent gender pay gap. “Women are under-represented in a range of sectors and occupations that offer higher paying roles - for example fewer than 10% of British engineers are female”.
The report recommended improving the connection between education and employers, while ensuring that strategic skills-based leadership at a local level has a focus on leveraging opportunities for women.
To read the research paper, click here.
A revised Disclosure and Barring Service Code of Practice which applies to registered persons and other recipients of disclosure information has been published by the Home Office. It covers registration details, the application process, identity verification, data handling, suitability policy, eligibility, compliance requests and payment of fees. To view a copy of the code, please click here.
According to the Fawcett Society, with the gender pay gap at 14.2%, many women are effectively working for free from today until the end of the year. The Government is introducing new provisions that mean from Spring 2016 every company that employs more than 250 people will have to report on the gender pay gap in its business.
The challenges will lie in collating the data and presenting it in a statistical format that is both compliant and does not give the wrong impression of any gender pay gap.
The outgoing director general of the Confederation of British Industry (CBI), John Cridland, has issued a numbers of warnings to the Government as he prepares to step down next week from the lobbying group after 33 years.
One of his concerns is what impact the living wage will have on business in the UK, stating “it’s a laudable objective, but a wage increase of 7.5% next year, followed by increases of around 6% each and every year to 2020 are a gamble”.
By pushing up wages, he believes that it will hasten replacing people with automation and could “cut off routes of progression for unskilled youngsters and women returnees seeking to re-enter the labour market”. For more details click here.
The following changes take effect from 1 October:
Emma Bartlett examines the law and recent cases on this issue. Please click here to read the full article originally written for Purely Payroll.
In an article for HR Director, Emma Bartlett takes a look at ways diversity is being progressed in the workplace other than legislation, for example, through external pressure of regulators, clients and interested groups. Please click here for the article.
In Thompson v London Central Bus Company the Employment Appeal Tribunal held that a claim for associative victimisation should not have been struck out at a preliminary hearing without the tribunal having first heard the evidence.
What was important when identifying if there had been associative victimisation was not the type or form of association but whether the reason for any detrimental treatment was due to a protected act.
What is interesting about this case is an Employment Judge had already held that EU law meant that the Equality Act should be read as including associative victimisation ie it can be brought by a third party who has not done the protected act but who has suffered detrimental treatment in connection with it.
Employers should be aware that it now appears that associative victimisation is covered by the legislation. Although this is only a tribunal decision and therefore not binding, this case is in line with the general recent trend of widening of associative claims beyond direct discrimination and harassment as confirmed recently by the ECJ in a claim for associative indirect discrimination.
In preparation for the Rugby World Cup ACAS has published guidance for employers on handling time off requests. Please click here for the guidance.
The Employment Appeal Tribunal has confirmed in Hall v West Yorkshire Police that there only needs to be a very loose causal connection between unfavourable treatment and a disability in order for a claimant to establish discrimination arising from disability.
The case involved an employee who was off sick suffering from depression, anxiety and a heart condition. She was dismissed by employer who mistakenly, but genuinely, believed she was falsely claiming to be sick.
The EAT found that there was a connection between the unfavourable treatment (her dismissal) and her disability and therefore an employment tribunal had been wrong to dismiss her claim. The motive of the employer is irrelevant and the unfavourable treatment does not need to be caused by the disability. Employers should be aware that this makes it easier to establish a claim of discrimination arising from disability but they will have a defence if they can objectively justify the treatment or if they did not know of the disability.
In the wake of the fallout following the cyber-attack on the extra marital dating website Ashley Madison Nick Hurley looks at the employment law angle where for example, a high profile employee suddenly finds his personal life in the papers. Please click here to read the full article.
Following the recent report by Public Concern at Work on Whistleblowing Nick Hurley has written an article for Thompson Reuters which highlights the key sectors and industries in which concerns are raised and the consequences that workers face once they have raised a concern. Please click here to read the full article.
The ECJ has confirmed that mobile workers with no fixed or habitual place of work should be able to count the time spent travelling to and from their homes to customers’ premises at the start and end of each day as working time.
In this case, the employer decided which customers the workers should visit and the order in which to do so. Although the workers were able to choose the route they took to and from home, as the employer was able to change the order of customers or cancel appointments at any time, they were found to be at their employer’s disposal during this time.
In response to concerns raised about the risk of abuse, such as workers conducting personal business at the beginning and end of the day, the ECJ suggested employers put in place monitoring procedures to avoid any potential problems.
The Ministry of Justice has published statistics which show a decrease in the number of tribunal claims compared to last year.
There have been 5,400 tribunal issue fees requested during this time, of which 68% were paid outright, 21% were awarded either a full or partial issue fee remission, and the remaining 11% were not taken any further.
The Law Society has published its proposals for reforming employment tribunals aimed at a system that is accessible to all and it hopes that this will also lead to a restructuring of tribunal fees.
It suggests that all cases could be heard in a single jurisdiction consisting of four levels with each level having different procedural considerations depending on their complexity and value.
The deadline for responses on the proposals is 30 October 2015. For more details please, click here.
As part of its programme for Scotland 2015-16, the Scottish Government has outlined its plans to abolish fees in the employment tribunal and legislate for gender balance on boards. To view an online copy of A Stronger Scotland: the Scottish Government’s programme for Scotland 2015-16, please click here.
The Court of Appeal has rejected Unison’s challenge to the introduction of fees in employment tribunals and the EAT. It has been a longstanding principle of EU law that individuals must have access to an effective remedy for any breach of their rights derived from EU law, such as equality rights.
Unison had argued that the level of fees was sufficiently unaffordable to prevent such access. The Court of Appeal however found that whilst the tribunal statistics showed that the introduction of fees had deterred a large number of potential claimants, they did not prove that any individual found it impossible to bring a claim.
However, this is not the end of the issue, as Unison has indicated they will appeal, and there is to be a government review of the fees in any event. (R(on the application of Unison) v Lord Chancellor)
A large number of academics from universities and educational institutions have written an open letter criticising the governments proposed reforms to trade union laws.
They describe the proposals as “ the most sustained attack on trade union and workers’ rights since the Combination laws of the early 19th century. In addition to minimum thresholds that seriously curtail the possibility of legitimate strike action, the bill also attacks the ability of unions to represent their members…and raise subscriptions… from members, among a battery of other restrictive measures.”
The government is currently consulting on its proposals.
Figures released by the government show that there are more than 8.2 million people aged between 50 and 64 now in work. This is a rise of 235 000 people in that age group in work than a year ago. The government estimates that there are a further 1.2 million people in this age group that are unemployed, but would like to work. For full details, please click here.
The EAT found that it was fair to dismiss an employee for derogatory comments made against the employer on Facebook. This was despite the fact that the misconduct had taken place two years earlier and the employer had been aware of some of the misconduct during that period.
This shows that, whilst it is advisable to act without unnecessary delay to incidents of alleged misconduct, the employer will not necessarily lose the opportunity to take action at a later date. (The British Waterways Board v Smith).
Earlier this week the EC published a roadmap. The aim of the new initiative is to address the under participation of women in the labour market by modernising and adapting current EU legislation and policy frameworks to today’s labour market to allow parents with children, or those with dependant relatives to better balance caring and professional responsibilities. For full details, please click here.
Charles Russell Speechlys Partner Emma Bartlett comments in the Independent on the rights of employees who have difficulties, or are unable, to get to work as a result of today’s tube strike. For the full article click here.
ACAS has published three guides to help employers identify and tackle discrimination in the workplace:
• Equality and discrimination: understand the basics – this sets out the law and gives examples to help employers understand their obligations
• Prevent discrimination: support equality – this is a practical guide on preventing discrimination and promoting equality
• Discrimination: what to do if it happens – this is a step-by-step guide on how to investigate and handle grievances relating to discrimination
Please click here for the guides.
The Justice Committee has announced it has decided to hold an inquiry into fees and charges in the employment tribunals and courts. Its remit includes considering the introduction of fees into employment tribunals in 2013 and whether this has affected access to justice and how this has affected the volume and quality of cases brought. The deadline for written submissions is 30 September 2015.
In the meantime, the Court of Appeal heard Unison’s challenge to the introduction of tribunal fees in June. Judgment is now awaited.
As promised in its election manifesto the government has published a new Trade Union Bill aimed at reforming and strengthening strike laws. The proposals include an increase to ballot thresholds, an extension of the notice of industrial action required to be given to employers, a ban on continuing industrial action more than four months after the ballot and new rules on the information that unions must include in the ballot paper and in the confirmation of the ballot results.
The Bill also introduces more stringent requirements for unions to supervise picketing. The government has also published three consultations on aspects covered by the Bill:
In addition to the increase in the ballot turn-out threshold to at least 50% of those eligible to vote, the Bill also proposes that in the “important public services” of health, fire, education, transport, border security and nuclear decommissioning at least 40% of eligible members must vote in favour. The consultation asks for evidence on who within those sectors should be subject to the new threshold. Please click here for the consultation paper.
The Bill proposes to remove the current provision which prevents an employment business from supplying an employer with temporary workers to cover the duties normally performed by striking workers. The consultation seeks views on the impact of the removal of this provision. Please click here for the consultation paper.
The Bill proposes to reform and modernise the rules relating to picketing including ensuring social media is covered and makes key aspects of the code of practice on picketing legally binding. The consultation seeks views on whether there are further requirements that should be legally enforceable, on proposals to improve transparency and accountability and whether there are gaps and weaknesses in the current framework governing intimidatory behaviour during picketing and how they can be remedied. Please click here for the consultation paper.
All three consultations close on 9 September 2015.
The government has launched a consultation on implementing gender pay gap reporting for large private companies and voluntary sector employers under the Equality Act 2010. It seeks views on whether the publication of gender pay information will encourage employers to take action to close the pay gap, whether regulations should specify where the gender pay gap figures should be published, how the information should be presented - whether as an overall difference between the average earnings of men and women as a percentage of men’s earnings, or broken down by full time and part time employees or by grade or job type and whether employers are able to provide this information from existing data or systems, whether there needs to be a contextual narrative accompanying the information, how frequently the figures should be reported and whether the 250 employee size threshold is appropriate.
The consultation closes on 6 September 2015. Please click here for the consultation paper.
In a decision that will be largely welcomed by employers, the EAT, in Plumb v Duncan Print Group Ltd, has held that unused holiday as a result of sickness should be taken within 18 months of the end of the leave year in question. The EAT also found that the worker does not have to demonstrate that he or she was physically unable to take the leave in order to benefit from the carry over.
As a result, Mr Plumb, who took no holiday while off sick from 2010 until his dismissal in 2014 was only entitled to payment in lieu of annual leave for 2012/3 and 2013/14, but not the earlier years. The parties were, however, given permission to appeal, so this may not be the final word.
ACAS have published a research paper on the effect of Early Conciliation (EC) on Tribunal applications. The headline findings are that in the first year of the scheme, 15% of EC cases resulted in a COT3 settlement, 63% neither settled by way of COT3, nor progressed to Tribunal and 22% of cases progressed to a Tribunal application (51% of which subsequently settled by way of ACAS conciliated COT3).
Of those that didn’t progress to Tribunal, 26% cited that the tribunal fees had put them off. According to the ACAS report, responses in relation to fees did not vary by income or demographic profile, but those who were members of a trade union were less likely to be put off by fees.
A copy of the full report can be accessed here.
Yesterday, on the UK’s hottest July day since records began, ACAS announced the launch of its new hot weather guidance for employers. Stewart Gee, ACAS Head of Guidance, commented that “certain workers may be adversely affected by the extreme heat such as pregnant women, elderly employees and Muslim staff that are currently fasting during Ramadan.”
ACAS offer several top tips including:
There is no maximum temperature for UK workplaces but the Health and Safety Executive advises that temperatures should be “reasonable”. Employers need to bear in mind their obligation to provide a safe and healthy workplace for all staff, including those with protected characteristics.
The Northern Ireland Court of Appeal in Patterson v Castlereagh Borough Council has held that voluntary overtime can in principle be included when calculating the amount of an employee’s holiday pay. The Court stated that this will depend on the facts such as whether it is worked with such regularity that it becomes an “appropriately permanent feature” of the employee’s remuneration to trigger its inclusion.
While this decision is not binding on English courts and tribunals and it gave no general guidance on the tests to apply it is the first decision on holiday pay and truly voluntary overtime ie where there is no contractual obligation to offer it or to work it.
The case has now been remitted back to the Irish industrial tribunal for it to look at the particular circumstances of Mr Patterson’s overtime.
ACAS yesterday published a report focusing on building productivity in the UK’s workplaces. The latest Office for National Statistics figures (2013) show that UK productivity levels are 17% below the average for the rest of the major G7 advanced economies.
ACAS Chair, Sir Brendan Barber, believes that well managed workplaces can improve productivity stating “a well-managed, efficient and innovative workplace can bring the improvements in productivity that we all want to see.” The report has identified 7 levers that can help make this happen:
The full report is available here.
Employers will be interested to learn that the government has confirmed that so far financial penalties have been imposed in a total of three tribunal cases and only one has been paid. The power for tribunals to order a losing employer to pay a financial penalty was introduced in April 2014 and can be ordered if the tribunal considers the employer’s breach has “aggravating factors”. The minimum penalty is £100 and the maximum is 50% of any financial award up to £5,000 per claimant although if the employer pays the penalty within 21 days it will only have to pay half of the amount.
As the individual claimant does not receive any extra compensation, because the amount is paid to the government, there was speculation as to whether the tribunals would be more willing to order these penalties, particularly against larger organisations, as this would be another means for the government to raise revenue. However, on these figures that certainly doesn’t seem to be the case.
People are likely to work longer in years to come as life expectancy increases, and the state pension age rises. A recent survey by the Institute of Leadership and Management however indicates that there are assumptions made about workers over 50 that need to be addressed to ensure the most is made of the knowledge and skills built up by this group of workers.
The survey highlights that those over 50 are seen as loyal, skilled and knowledgeable members of the workforce, but they “aren’t viewed by colleagues and managers as the “organisational stars” of the future and they are perceived as having little potential for further progression or development...” please click for further details.
The employer, a Montessori nursery, had a uniform policy which required that any garment worn should not present a tripping hazard. Ms Begum, who was applying for a position as a nursery assistant, wore a full length jilbab to her trial day and interview and when offered the job was told of the uniform policy.
There was some discussion about the length of her particular jilbab and whether she was prepared to wear a shorter jilbab as the manager was concerned that it might restrict her movement and present a tripping hazard.
Ms Begum brought a claim for discrimination on grounds of religion or belief, saying that there was a requirement not to wear ankle length jilbabs, which discriminated against Muslim women. Both the Tribunal and Employment Appeal Tribunal found that in fact the requirement was not to wear not to wear a garment which presented a tripping hazard and this did not discriminate against Muslim women as the nursery allowed for ankle length jilbabs, so long as they did not present a tripping hazard.
The Tribunals also noted that if the requirement was discriminatory, it would have been justified on health and safety grounds as there was a need to protect staff and children.
Employers with fewer than 50 workers in their PAYE schemes on 1 April 2012 start to reach their auto-enrolment staging dates from 1 June 2015. The particular staging date will have been assigned to each employer by the DWP and the process runs until 1 April 2017. Once a staging date has passed, the employer must comply with their duties to auto-enrol eligible workers into a pension scheme and make mandatory minimum contributions.
The EAT has again upheld the Employment Tribunal’s strict application of the ACAS early conciliation provisions, in what seems to be fast becoming a pattern.
In Sterling v United Learning Trust the claimant had submitted her claim form in time, but with an incorrect ACAS early conciliation number. When the tribunal returned the form to her for correction, it was not addressed properly, so by the time the claimant was able to resubmit her claim form with the amendment, she was out of time. The tribunal held that they had no jurisdiction to hear the claim as it was submitted out of time.
The EAT upheld the tribunal’s decision and found that the tribunal was obliged to reject the initial claim form, as it contained an error, and that as the claimant was at fault in making the error, she could not successfully argue that it was not reasonably practicable for her to present the claim in time.
The EAT did comment that the claimant in the above case may have been successful had her representative raised alternative arguments, namely that the tribunal had made an error in returning the form to the wrong address, and potentially could have applied for the initial rejection to be reviewed.
However, the case may be seen as confirmation of the strict approach tribunals are taking in respect of the ACAS early conciliation provisions, as we have seen earlier this month in the case of Cranwell v Cullen, and employers should take note accordingly.
Provisions come into effect today (26 May) that:
This clearly could prove extremely costly for employers, and checks should be made to ensure compliance.
The ECJ has handed down its judgement in Lyttle and ors v Bluebird, a case referred to it by the Northern Ireland Industrial Tribunal, dealing with essentially the same issue as in the “Woolworths” case.
Unsurprisingly, the court found that the term “establishment” in the Northern Irish legislation on collective consultation (which effectively mirrors the English provisions) is the local unit, or entity, to which the redundant workers are assigned to carry out their duties. The legislation was therefore found to be compatible with the underlying Directive.
It seems likely that this will be the end of the line for European challenges on the issue of “establishment” and it is now for domestic courts to interpret the decisions. Employers will welcome these cases, which potentially narrow the scope of collective consultation.
Lawyers for British Gas have confirmed that they are appealing against the Employment Tribunal decision given in March this year concerning the inclusion of commission in holiday pay.
It is understood there are two grounds for the appeal: firstly that the Tribunal was wrong in deciding that Bear Scotland v Fulton, a case about overtime and holiday pay, had any bearing on this case and secondly, that the EAT in Bear Scotland was incorrect in its conclusion that domestic legislation could be interpreted so as to give effect to EU law which the Tribunal then did by adding in wording to the Working Time Regulations.
It is unsurprising that British Gas are appealing particularly as this is likely to affect a large proportion of their workforce. In the meantime, employers who operate commission schemes may want to continue with the wait and see approach pending the outcome of the appeal to the EAT which is expected to be heard towards the end of this year.
Although the uncertainty for employers continues, the news that the EAT will be ruling on this is welcome.
After last night’s unexpected election result with the Conservatives winning a small, but outright, majority we look at their key proposals based on their manifesto and pledges for each of Employment, Pensions and Immigration. Please click through for further details.
However, given that much of our UK legislation on employment, pensions and immigration issues originates from the EU the most significant change under the new Tory government could be the proposed in-out EU referendum which is due to take place by the end of 2017. Watch this space…
If a Claimant fails to submit their claim to ACAS before going to the Employment Tribunal, the Tribunal has no jurisdiction to hear the claim, however sympathetic they may feel to the Claimant’s situation.
In Cranwell v Cullen, Ms Cranwell sought to bring claims of sexual harassment. The EAT noted that, if her claims were supported by the evidence, she had been “most appallingly badly treated by her former employer...”.
Unfortunately she simply presented her claim to the Tribunal, and did not first submit her claim to ACAS for early conciliation. The EAT noted, with some sympathy, that the very thought of conciliation for someone with her particular claim would be problematic. She may not have realised that she was not obliged to actually conciliate, but simply to contact ACAS and explain that she did not want to conciliate. Had she done this ACAS could then have produced an Early Conciliation certificate, allowing her claim to proceed.
As it was, the Tribunal and EAT had no option but to reject her claim. This serves as a reminder that, whilst there is no obligation to actually conciliate, a Claimant must submit their claim to ACAS before proceeding as the Tribunal has no discretion to allow a claim to proceed, however sympathetic they may feel towards the Claimant.
The ECJ decision, handed down today, in the case of USDAW v WW Realisation (known as the “Woolworths” case) on the scope of “establishment” for collective redundancy consultation purposes will be welcomed by employers.
Collective redundancy consultation requirements are triggered when 20 or more employees are to made redundant at one “establishment” within a 90 day period. The ECJ has confirmed that “establishment” in this context is the entity to which the workers made redundant are assigned to carry out their duties, rather than the employer’s business as a whole. This will clearly result in less collective consultation exercises being triggered, which will allow businesses more flexibility in managing their workforce.
The case however will still need to return to the Court of Appeal to apply the judgement in the UK. Since the decision appears to allow for the current UK legislation to stand, it is likely that it will be fairly straightforward for the Court of Appeal to apply. This will result in the earlier Employment Appeal Tribunal decision, which found that the broader interpretation should apply, being overturned.
While this is welcome news for employers, they should still carefully consider their collective consultation obligations in all redundancy situations. “Establishment” is said to mean the business unit to which employees are assigned, but employees and unions will still be keen to argue that the relevant “establishment” is larger than just the individual premises at which employees work.
Employers will wish to show that individual premises can be an establishment because that is the business unit to which employees are assigned, and it is not essential for employers to show that there is management presence at the premises who can independently effect redundancies.
When disciplining an employee with a “live” final warning, it is generally fair for the employer to rely on that warning and dismiss the employee, provided that it was issued in “good faith”. The recent Court of Appeal decision in Way v Spectrum Property Care is a reminder that this is not always straightforward.
Mr Way had received a final warning for recruiting a friend’s son in contravention of the Company’s fair recruitment policy. Whilst this final warning was still live on his file, he was disciplined for sending offensive emails. The emails alone would not have justified dismissal, but because of the final warning on his record, he was dismissed.
Whilst the Employment Tribunal and Employment Appeal Tribunal both found the dismissal fair, the Court of Appeal said there was sufficient information to question whether the final warning had been issued in good faith, or whether the manager involved was protecting himself in the process. As a result, the case went back to the Tribunal for this issue to be considered.
Employers therefore need to ensure that when seeking to dismiss in these circumstances, there are no issues around the final warning which may reasonably lead to the conclusion it was issued in “bad faith”.
Richard Branson says Virgin’s performance has benefitted from its employees having unlimited holidays http://www.wsandb.co.uk/wsb/news/2405642/branson-virgin-performance-is-benefitting-from-unlimited-holidays
However, there are a number of practical issues which need to be considered for this concept to work:
We have summarised some key employment law changes being made in April 2015.
From 5 April 2015:
From 6 April 2015:
The Davies Review Annual Report 2015, published yesterday, revealed that representation of women on FTSE 100 boards has now reached 23.5%, almost double the 2011 figure of 12.5%. Fewer than 20 new appointments of women are needed by the end of the year in order to reach the 25% representation target set in 2011 by the Davies Review.
Perhaps equally significantly, the report also announced that for the first time in the history of the London Stock Exchange there are now no all-male boards in the FTSE 100.
However, there were other, less positive, figures reported:
Despite this, real progress towards gender balance has been made over the last few years, with 41 companies in the FTSE 100 having at least 25% women board members and two companies (Diageo and Intercontinental Hotels Group) with 45.5% female representation.
A Parliamentary Committee report has urged the Government to amend insolvency and employment law as “the existing system incentivises companies to break the law on consultation with employees.”
The report considers the collapse of City Link, which failed to comply with the requirement to collectively consult staff when proposing 100 or more redundancies within 45 days. The report found that City Link deliberately chose not to inform employees of the intentions of the company for its own financial benefit, knowing that the maximum penalty for failing to notify the Secretary of State of the proposed dismissals is a fine of £5,000.
Affected employees could have brought a claim against City Link asserting a breach of its collective consultation obligations, but as City Link is insolvent, it would not be able to pay any compensation awarded by an Employment Tribunal. Such claims are covered by the National Insurance Fund, but only up a statutory cap for all applicable claims of eight weeks’ pay (each week capped at £464) less tax and NICs.
The report’s recommendations for the Government include that it:
The Insolvency Service has published a call for evidence on collective redundancy consultation for employers facing insolvency.
An ACAS study analysing calls made to their helpline in 2014, found that agency workers are often unaware of their rights and fearful of asserting them.
Many callers were unfamiliar with their basic rights, especially:
Other callers complained of being coerced into doing work for which they were unqualified, not knowing how to redress being unpaid, and being fined for taking a sick day.
Sir Brendan Barber, ACAS chair, said “agency workers can feel a sense of insecurity and fear around their contracts, similar to those raised by calls to our helpline on zero hours contracts”.
The paper concludes that greater awareness of agency workers’ experiences would help promote healthy competition among agency businesses.
According to research carried out by Group Risk Development, 40% of UK employers have found that sickness absence rates have improved over the last year.
Employers gave the following reasons for the improvement:
Interestingly 36% said that improved sickness absence rates were due to staff being concerned about losing their jobs. This suggests that presenteeism (where workers feel they need to come to work despite being sick) is still a significant issue.
Sickness absence is estimated to cost UK businesses £29 billion each year. 62% of those questioned said sickness absence made up 1 - 5% of their overall payroll. Sickness absence also puts greater pressure on other staff members.
Employers should ensure that they have a system for recording employee absences in order to efficiently monitor and manage sickness. Employers may also wish to consider what strategies and initiatives they could implement in the workplace to improve attendance and reduce absence, but should consider the potential disability discrimination risk of any such initiative.
Acas has released another update on statistics for early conciliation (EC). Initially, Acas received approximately 6,500 EC notifications every month, but this has increased since September 2014 by about 1,000 notifications.
The statistics are more meaningful now as the deadline to bring a claim has passed in respect of almost all of the notifications made in the first six months. However, the earlier statistics released by Acas and the implications (see our story from 24 November 2014) have not been significantly altered by the new information.
The recent holiday pay cases (see our publication for an update of these cases) have had a significant impact on the number of claims commenced. Holiday pay notifications made up 14.3% of notifications received between April to December 2014.
Of the 37,940 notifications submitted between April and September 2014:
This suggests that many individuals are commencing EC in the hope that the employer will offer a settlement. Employers should think carefully before making settlement offers during EC.
A report undertaken by CIPD has revealed that:
The report also highlighted that 44% of the respondents did not know about the 25% female representation target in FTSE100 boardrooms (mentioned in our story on 24 February 2015).
When asked about how to improve female representation at board level:
An open and supportive culture was cited as the most effective way of improving gender diversity, followed by unbiased recruitment and effective work-life balance policies that support female staff with caring responsibilities.
According to research carried out by Meis, women in senior positions in the FTSE 100 are still being paid less than their male counterparts both in terms of base pay and bonuses. The research found that:
It should be noted, however, that as a result of the low proportion of chief executives of FTSE 100 companies who are women (4% at the time of the survey), the data may be skewed. In contrast, for FTSE 250 companies the average base pay for female chief executives was 10% higher than their male counterparts.
There have been several attempts to improve the number of women in the top positions of companies. Targets such as 25% of female membership on company boards (see our story on 8 October 2013) or a Voluntary Code of Conduct (see our story on 3 July 2014) have both been introduced to attempt to increase gender diversity.
Today the government announced that a further 70 employers have been named for failing to pay the minimum wage. These employers are mainly in the care, retail and hospitality sectors.
Some are named in respect of a failure to pay less than £200 to just one worker. It is therefore not only the most serious cases of non-compliance that may result in ‘naming and shaming’.
The naming regime came into force in 2013. Higher penalties for employers failing to comply with the minimum wage, and an increased enforcement budget, are planned. We can expect to hear more, with the care sector in particular currently under scrutiny.
Employers are advised to review the more complicated minimum wage issues, such as pay for travel and on-call time, which can often lead to non-compliance.
The number of over-60s in the UK workforce is expected to increase by 13% between 2013 and 2020. Employers need to take care not to discriminate against older workers in relation to training and career progression.
A survey conducted by AXA PPP Healthcare found that:
Although the majority of employers recognise the integral role older employees play in the workforce, the research suggests that many employers are ignoring or simply not capitalising on the benefits they could bring
A new campaign, “#notjustforboys”, backed by the Department for Work and Pensions and the Employment Minister, Esther McVey MP, has been launched to break down barriers and help women find and stay in work.
The campaign has the support of 30 leading businesses and individuals and the focus will be on assisting women into industries such as banking, broadcasting and business.
The campaign is one way in which the gender pay gap and a lack of women in senior positions is being tackled. For more information on the gender pay gap, see our story from the 12 February 2015.
There is some positive news for equality. Of the G7 countries, the UK has the fastest growth in the number of women entering into work. Currently there are 14.4 million women in work in the UK and the employment rate for women is a record 68.2%.
Reported today are the economic plans for a future Labour government, hot on the heels of adverse coverage of HSBC tax advice. These plans include:
These proposals are still a long way off becoming law (if at all). However, they demonstrate that bankers’ remuneration is still a key political issue.
Following the financial crisis, financial services employers have had to get to grips with substantial regulation of remuneration policies. This is intended to discourage inappropriate risk taking and overspending.
The current Remuneration Code sets out mandatory requirements, including deferral of bonuses, part-payment of bonuses in shares (or similar) and strict limits on the use of guaranteed bonuses.
There have been many news reports recently regarding a lack of women in senior positions, including in the architectural, energy, financial and entertainment sectors and also in Parliament (see our various stories on the archive page).
Data released by HMRC supports these reports. In London:
The gender pay gap has long-term consequences for women. According to the Fawcett Society, it takes women, on average, 20 years longer to earn £1 million compared with men and also female pensions at retirement are often far lower.
Nick Clegg aims to get 1 million more women into work by 2020. To achieve this, the Liberal Democrats have pledged to increase paternity leave, extend free childcare and force companies employing over 250 people to be more transparent about the average pay of men and women workers.
The Labour party have announced their plans to increase paid paternity leave from two to four weeks and increase statutory paternity pay to £260 per week. £260 per week is the equivalent to a 40-hour week on the national minimum wage.
Labour’s pledge has been criticised by the British Chamber of Commerce as representing a “tax on business”, and it says that small and medium-sized businesses would particularly struggle with the increase. IPPR think tank has estimated that the increase will cost £150m a year.
In September 2014, the Liberal Democrats pledged to increase fathers' paternity leave from two to six weeks, paid at the statutory rate for paternity pay (currently £138.18 per week) (see our story from 3 September 2014).
With 3 months until the general election, the parties are in full swing laying out their various policies. Read our Briefing Note from October 2014 on what the general election could hold for employment law.
A study published today by The Resolution Foundation think tank suggests that around 160,000 care workers are being paid less than the national minimum wage, with an average loss of around £815 each per year.
The national minimum wage was introduced about 15 years ago. The concept is simple, but there are some complicated issues, particularly for the care sector, in which roles can involve shift work, travel from home to home, time on call and ‘sleeping in’ at the place of work. The study identified some of these as being common sources of wage defaults.
Employers failing to pay at least the minimum wage risk claims from the underpaid individuals, as well as investigation and civil enforcement action by HMRC. In some serious circumstances, employers will face criminal prosecution. BIS can also ‘name and shame’ non-compliant employers in press notices.
The current minimum wage rate is £6.50 (lower rates apply for apprentices and younger workers).
The Court of Appeal in this case, commonly known as “the Woolworths” case, but officially USDAW v Ethel Austin Ltd, effectively asked the ECJ whether the phrase in the European Collective Redundancies Directive requiring collective consultation where “at least 20” are to be made redundant refers to 20 across the employer’s whole business, or in each individual “establishment”.
The Attorney General (AG) found that “establishment” should be the unit to which the workers are assigned to carry out their duties, meaning that the Directive does not require aggregating the number of dismissals in all the employer’s establishments.
This is potentially good news for employers as, if the ECJ follow this decision, UK courts will be able to determine how local units are constituted in each situation, but will not have to look across the employer’s whole business operation when determining if the duty to collectively consult has been triggered.
Until the ECJ judgement however, it will be prudent for employers making 20 or more redundant in their business in a 90 day period, wherever the employees are located, to undertake collective consultation as the ECJ may well fail to follow this opinion, and it is not what most practitioners were anticipating!
Charles Russell Speechlys Employment partner Robert Thomas recently acted for Mr Stack in his successful claim against Ajar-Tec Ltd. Mr Stack had been a director and shareholder of Ajar-Tec and spent about 80% of his time working for the company but he had not been paid for three years. Draft employment contracts had been circulated but nothing was ever signed.
An employment tribunal had found he was an employee and worker, but the EAT overturned this, finding that there was no agreement that Mr Stack be paid, and therefore no consideration and no binding contract.
However, on appeal to the Court of Appeal, the tribunal’s original finding has been restored. The Court found that that there was an implied term that Mr Stack would be paid for his services from the point at which he started to do a substantial amount of work.
The contract was formed partly expressly and partly by implication and it was not fatal that there was no express agreement as to remuneration. His claims for unfair dismissal and unlawful deductions could therefore proceed. This is an important decision in determining the employment status of director/shareholders as well as the guidance provided on contract formation.
A report by PwC and POWERful Women, has highlighted a lack of women on boards of energy companies in the UK. The research found that:
The aim of the report is to call leaders and HR to increase the proportion of women in senior energy industry roles to 30% and middle management to 40% by 2030. All of those surveyed said there was a commercial business case for gender diversity in the sector, with the majority agreeing that better decision-making was the most compelling reason for increasing diversity.
There are few reported cases of age discrimination based on compulsory retirement following the abolition of the default retirement age, which are not closely followed. The England and Wales Cricket Board (ECB) are currently defending such a claim brought by two former umpires forced to retire at age 65; Peter Willey and George Sharp.
The use of a compulsory retirement age is discriminatory unless it is objectively justifiable. It is unlikely that the ECB’s reported justification of the indignity of performance management, among other matters, will be successful in light of the 2014 Supreme Court’s decision in Seldon, which held that retirement at age 65 for a law firm partner was objectively justifiable on “grounds of retention” and “workforce planning”. The Supreme Court rejected “collegiality” (essentially, not having to performance manage an older partner which might be contrary to a congenial and supportive workplace culture) as justification.
The decision will be important for other employers keen to justify age discrimination, as well as for the ECB as it was reported in December that Mike Gatting was also to go.
Despite the Equality Act 2010 protecting disabled candidates during recruitment, research by the Clear Company found that:
In 2013 the Government launched the Disability Confident Campaign to tackle the barriers to work faced by disabled people. The campaign has included Access to Work schemes, informing employers of the benefits of employing disabled people and role models who talk to young disabled people about how they might put their aspirations into practice.
The Women in Architecture Survey 2015 has found an increase in both discrimination and bullying of female architects.
62% of women who responded said that they had suffered discrimination in their office. Perhaps surprisingly, this was higher than the number of women who said they faced discrimination at a building site. The survey also found that the number of female architects who said that they have been bullied has increased since last year.
In terms of the gender pay gap:
In addition, 87% of women felt that having children puts women at a disadvantage in architecture.
The President Elect of the Royal Institute of British Architects has said that the recession and poor management practices have contributed to this unhealthy working culture.
Many of the older generation are suffering age discrimination at the recruitment stage due to O-levels and old-style qualifications being present on their CV’s, according to Ros Altmann, UK Government’s Older Workers Business Champion.
In a bid to tackle age discrimination against jobseekers over 50, the Government plans to roll out an ‘older workers’ scheme across the UK from April 2015. Research suggests that 1.2 million over 50s want a job. If they were supported into work, it is estimated that £50 billion could be added to the economy.
The scheme will include:
The Conservatives have announced a plan to reform Britain’s strike laws in the first term of the next Parliament, if they win the election. The proposals were announced a few days before the London bus driver strike, taken with the backing of only 16% of the RMT trade union’s members.
The proposals are different to those originally announced last summer (see out story from 18 July 2014). The new proposals are:
Currently, a strike ballot only requires a simple majority of the members who vote.
The TUC have being critical, saying the reform would effectively end the right to strike in the public sector and shift the balance away from public servants to the Government and employers.
A House of Lords committee has highlighted a lack of women in news and current affairs broadcasting and recommended that special effort should be taken to ensure equal gender representation. The committee has urged the BBC to provide more opportunities for flexible working to help women progress to senior positions. This could address the difficulties faced by those with childcare responsibilities as a result of the anti-social hours, freelance work and fast-paced nature of news.
Despite the changes to flexible working introduced from 30 June 2014, according to research by 02 Business only 54% of UK workers are aware of their right to request flexible working and only 23% of UK workers have made a request for flexible working. The following reasons were cited as the main barriers to requesting flexible working
Employers may wish to consider whether there is more that can be done to facilitate flexible working, particularly if doing so could lead to benefits to the business.