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Employment Law in the News Archive


The Government has published new guidance to clarify the practicalities of the Fit for Work service (FFW), which has been introduced to help employers to manage sickness absence.

We have summarised the Fit for Work service and what it means for employers


Research by the World Economic Forum found that the UK was ranked 63rd out of 137 countries for female representation in parliament.

Currently, only 22% of MPs are women. Women also make up 22.7% of David Cameron’s cabinet. There are, however, differences between the parties in terms of female MP representation:

  • 31% in the Labour Party
  • 16% in the Conservative Party
  • 12% in the Liberal Democrat Party.

Labour’s women-only shortlists may be a significant contributing factor for their lead.

Similar solutions have been suggested for the gender gap in politics as with the gender gap in employment. For example, the UN has suggested the introduction of quotas and the growth of community organisations to empower women. However, there are also questions about whether women want to be involved in politics to the same extent as men. For example, research at the University of Pittsburgh suggested that the election process puts women off. 


Analysis by the TUC has found that increased use of zero-hour contracts and agency workers is preventing young people from obtaining permanent jobs.

The TUC’s analysis of official figures found that:

  • 81% of temporary workers aged 20-24 and 64% of those aged 25-29 are in temporary work because they cannot find a permanent job
  • under 30s represent 25% of the working population but account for 44% of temporary workers, 37% of agency workers and 50% of all workers on zero-hour contracts.

Employers argue that temporary work provides a stepping stone into more permanent work, but the TUC says that young people would prefer access to training and workplace benefits that often comes with more permanent work. 


Over the last 12 months, the number of men working part-time has risen by 8% to 975,000, according to research by Timewise. Men now make up 26% of part-time workers in the UK. However, the median pay of women working part-time has increased by 5.7% more than that of men working part-time.

Timewise also recently published its annual Power Part Time List, showcasing 50 men and women in senior positions who work part time. The list demonstrates that working part time can be combined with a successful career in high level positions.

A recent study has also suggested that attitudes to flexible working are changing. 52% of employees interviewed reported that their colleagues who worked from home were equally or more industrious than those based in the office.


A recent survey of over 5,000 employees in 12 countries revealed that more than 50% of employees currently use personal devices for work purposes or expect to do so in the future and, importantly, 43% are using personal devices for work without their employer knowing. This trend has prompted many employers to consider a Bring Your Own Device (BYOD) policy.

BYOD policies can be cost-effective, for example by replacing the need for additional corporate phones, and can enable remote working using a device of the employee’s choosing. However, employers should put in place appropriate measures to deal with the risks, which include security and confidentiality issues, as well as more practical questions such as who will bear the costs of mobile and data plans.

The survey also found that almost 66% of employees consider access to the latest technology to be vital and almost 25% of employees would consider resigning without it.


Research by Glassdoor suggests that uptake for shared parental leave (“SPL”) may be limited. Of the men asked:

  • 42% said they would only take the two weeks’ statutory paternity leave if their partner had a baby
  • only 12% would take the maximum amount of SPL whilst their partner returned to work
  • only 23% agree that new parents should share parental leave. 

The proportion of men that agree that new parents should share parental leave rises to 31% amongst 18 to 24 year olds and falls to 21% for those over 45. This might suggest that in time, attitudes may change.

The legislation introducing SPL is now in force. SPL applies in relation to children who are expected to be born or are adopted from 5 April 2015. It will enable couples to share up to 50 weeks of parental leave.


9.7% of UK workers were “overemployed” (wanted to work fewer hours for less pay) in 2014, according to statistics released by the ONS. Each overemployed worker wanted to work 11.2 fewer hours per week, on average.

Overemployment was highest amongst:

  • health professionals
  • chief executives and senior officials
  • senior officers in protective services.

In contrast, 9.9% of workers were “underemployed” (wanted to work more hours than they had), particularly waiters and bar staff, cleaners, and sales assistants.

The General Secretary of the TUC said that “it makes no sense that there are so many people wanting more work, while others complain of being overworked”. Looking at the types of jobs may explain the disparity. Overemployed workers tend to be in high paid, senior positions where the nature of the job requires working longer than the contractual hours. The underemployed roles are typically temporary, through agencies or on zero-hour contracts with lower pay and limited opportunity to work longer hours.


Research by the charity Carers UK has found that 2.3 million people have given up work at some point to care for someone. Those who left work said that they felt that they had no other choice. 14% of carers who gave up work said that they did so because they did not get the right information or advice about their entitlements. 

The cost of carers leaving the workforce is estimated to be £5.3 billion every year.  However, there are also currently 3 million people who are combining work with caring through flexible working or reduced working hours.

There appears to be a disparity between the experiences of employers and employees. 83% of employers said they offered flexible working arrangements, but only 48% of carers said this was offered in their workplace. These statistics suggest that the communication of policies that are in place could be improved.


A recent survey revealed that 80% of parents would have liked the father to have taken longer paternity leave. Some fathers do not take longer paternity leave because there is pressure for one of the parents to get back to work to earn their regular salary. Statutory paternity leave is paid at the lower of £138.18 per week or 90% of average weekly earnings, which is about half the salary of someone earning the National Minimum Wage. The survey found that 39% of fathers took paid annual leave after their child was born rather than paternity leave. 

Nick Clegg has encouraged employers to do more to support working parents, for example, by offering flexible working arrangements. Last week, Deloitte, PwC and Shell announced enhanced paternity packages. However, Deloitte noted that practical support must be accompanied by a cultural shift in order to succeed. The introduction of shared parental leave on 5 April 2015 may help with this.


George Osborne has abandoned his challenge to the EU’s bonus cap following the Opinion from the European Court of Justice’s (ECJ) Advocate General, which advises the Court. The bonus cap limits bonuses of affected banking staff to 100% of fixed pay or 200% with shareholder approval.

The UK Government challenged the EU bonus cap on a range of grounds, including that the power that the EU relied on to introduce the cap didn’t actually give it the right to do so and that EU member states should be able to determine their own remuneration levels. The Advocate General rejected the UK’s arguments and found that the EU’s plans are valid. He noted that the EU rules were not in fact a cap on pay, as banks are still free to increase base salary. 

The Advocate General’s Opinion was not binding on the ECJ, but the ECJ often agrees with the Advocate General.  Therefore, although the final hearing was not expected until 2015, Mr Osborne decided to withdraw the challenge.

The bonus cap applies to pay for services and performance that take place from 1 January 2014.


Acas has released an update on statistics for early conciliation (EC). Acas continues to receive approximately 6,500 EC notifications from employees every month along with about 200 from employers.

Of the 17,162 notifications submitted between April and June 2014, only 18% settled during the EC period. This is not particularly surprising, as very limited information is available at the EC stage so it is difficult to assess the prospects of a claim being successful. However, employers should note that 70% of the cases that did not settle did not progress to a claim. Put another way, 58% of EC notifications did not result in either a settlement or a claim. This reinforces our earlier suggestion (see our story from 4 September 2014) that many individuals are commencing EC in the hope that the employer will offer a settlement.

Employers should be conscious of this and think carefully before making significant settlements during EC.


Recent figures estimated that almost 500,000 people suffered from work-related stress or mental health problems. Mental illness is said to result in 70 million sick days per year and costs the economy £70-100 billion per year according to the Annual Report of the Chief Medical Officer.

Recent research from the trade body, Group Risk Development, found stress and mental health issues to be the main cause of short-term absence for 19% of employers and of long-term absence for 48% of employers.

64% of employers surveyed said they are focusing on tackling the issue with work-life balance policies. Among other things, many employers have introduced flexible working strategies, training mangers to spot signs of stress or mental health conditions and introducing Employee Assistance Programmes which could include fast-track access to Cognitive Behavioural Therapy.

It is important for employers to take mental health issues seriously. Aside from the health impact on staff, the consequences for employers can be significant. In addition to lost working time, affected staff might have claims including disability discrimination, personal injury and unfair dismissal.


The number of women in the workplace was a record high last year at 14.4 million. This was an increase of 2.5% on the previous years’ figure. 

George Osborne is aiming to increase this by a further 3.4% by 2016. This would give the UK an equivalent female employment rate to Germany. 

Mr Osborne’s plan includes:

  • increasing access to childcare by injecting £2 million to support 50,000 new childcare places
  • tax-free childcare, assisting with 20% of childcare costs up to £2,000 for each child
  • the introduction of shared parental leave in April 2015
  • continuing to support the right to request flexible working.

This announcement hasn’t been welcomed by all women. Concerns have been voiced about the possibility of ‘stigmatising’ stay at home mothers and de-valuing the work they do in caring for their children.


It has been reported that Facebook offers to financially assist women in freezing their eggs at the optimum age. Apple are said to be introducing the policy in January.

Statistics released by the Office for National Statistics earlier this year revealed that the pay gap between men and women in their 20s and early 30s was relatively minimal, but this significantly increased when workers reached the age of 35 onwards, the age when many women presumably decide to have children.

Freezing women’s eggs is intended to assist them in controlling their professional careers and not be constrained by the timing of their biological clock.

However, critics state that this policy presents motherhood as a problem to be solved and that in order to succeed women need to postpone having children. It fails to address and actually increases the feeling amongst many women that they need to put off having children to succeed in the workplace. In addition, if the idea took off, freezing women’s eggs may close the gender pay gap for women in their late 30s, but when they do eventually decide to have children the same issues will crop up and merely push the pay gap further apart in an older age range.


In a few years’ time, four generations of people will be working alongside one another in the workplace. It is said that psychological differences between these generations will impact on the composition of the workforce.

A recent report by the recruitment company, Hudson, has suggested that women aged 20-34 (‘Generation Y’) have the necessary skills to make successful and effective leaders.

The report analysed 28,000 psychometric assessments from 20 different countries and showed that compared to workers over 50 (‘Baby Boomers’), Generation Y were:

  • 27% more people-orientated
  • 32% more ambitious
  • 14% more socially confident; women in Generation Y were 16% more confident than their male counterparts
  • 12% more altruistic.

Traditional leadership skills such as persuasiveness, open-mindedness, extraversion, decisiveness, and being motivational are, according to the report, being superseded by the skills displayed by Generation Y.

Although women may have the qualities necessary of tomorrow’s leaders, whether they are actually promoted to positions of leadership will surely still be dependent on a fundamental shift in the culture and attitudes within society.


Vince Cable, the Business Secretary, has announced a review of employment status. The review will include employees, workers and the self-employed. It will consider how clear the current framework is, what the options are for extending some employment rights to more people and whether there is scope to “streamline” this area. It follows comments by Labour leader, Ed Miliband, suggesting that he wants to extend workers’ rights.

The Government seems to have two main aims in conducting the review. First, to provide clarity to individuals and businesses so that both are clear about whether an individual is self-employed, a worker or an employee, with the result that both are clear what rights an individual has. Secondly, Vince Cable said that the Government wants to be in a better position to consider extending employment rights to more people. The Government’s press release suggests that it is possible that all employment rights could be extended to workers.

The current timetable is for recommendations for next steps to be made to ministers in March 2015. Given that the General Election taking place on 7 May 2015, no change in law is likely until late 2015 at the earliest.


An annual survey undertaken by the Chartered Institute of Personal Development  and Simply Health found that:

  • overall absence levels have fallen from an average of 7.6 days to 6.6 days per year
  • 33% of employers said employees came into work whilst still unwell
  • 40% of employers had seen a rise in stress and mental health issues in the workplace
  • 33% of employers felt absence levels were increasingly due to staff being unable to balance caring responsibilities with work.

The report cited various options for employers to support employees with caring responsibilities, including flexible working, compassionate leave, paid or unpaid carers' leave, counselling, career breaks, and options to purchase additional annual leave. Employers are also encouraged to train managers to have discussions with employees about the various options that are available.


Vince Cable has announced that he will launch a review into the diversity of company boardrooms. The number of women at board level has increased from 12.5% in 2011 to 22% in 2014 following the review by Lord Davies, yet the number of ethnic minorities in leadership roles, according to Cable, has been falling.

recent study found that:

  • over 50% of FTSE 100 companies had no directors from ethnic minorities
  • 66% of FTSE 100 companies had no full-time executive directors from ethnic minorities.

Cable stated that the review is likely to assess the number of directors of black, Asian and ethnic minority backgrounds employed by the biggest companies. Cable said targets may be introduced but suggested he would prefer a voluntary campaign to formal quotas. However Chuka Umunna, shadow business secretary, stated that if Labour are elected in May 2015, he would consider introducing quotas.


Four changes to employment law came into force today.

  • Antenatal rights for fathers and partners: employees and eligible agency workers now have a right to take unpaid leave to attend two antenatal appointments with a pregnant woman. Each appointment can be for a maximum of 6.5 hours. The partner must have a "qualifying relationship" with the woman to be eligible for this right.
  • Equal pay audits: if an employer is found in breach of equal pay law, the Employment Tribunal must order that an equal pay audit be carried out unless an exception applies. The Tribunal could order the employer to pay a penalty of up to £5,000 if the audit is not carried out satisfactorily and potentially a further penalty of up to £5,000 if the employer continues to fail to comply.
  • National minimum wage: has increased from £6.31 to £6.50 per hour. The youth rate has also increased from £5.03 to £5.13 per hour.
  • Reserve Forces: where the principal reason for a dismissal is connected with the employee's membership of the Reserve Forces, the employee no longer needs the normal qualifying period of two years' service to claim unfair dismissal.


The European Commission has published a factsheet drawing attention to the continued underrepresentation of women on boards. This emphasises that of the EU's largest publically listed companies, in April 2014:

  • the average proportion of women on boards was 18.6%
  • only 3.3% had a woman CEO - a figure which has remained largely the same for the last three years.

The European Commission originally sought to address the issue of gender equality in leadership positions by promoting self-regulation initiatives. For example, the "Women on the Board Pledge for Europe" encouraged listed companies to target 30% of women on Boards by 2015.

When this produced little progress, the European Commission proposed a Directive with a quota of 40% of each sex as non-executive directors by 2020. If a company doesn't reach the goal, they would need to apply gender-neutral selection criteria in recruitment and positively discriminate in favour of the under-represented gender where two candidates have equal qualifications.

The proposed Directive is currently being discussed by the Council of the EU. 


Richard Branson has announced that his private staff will be allowed to take an unlimited amount of annual leave. Employees will not need to get approval and neither they nor their managers will track the number of days' holiday that they take. Branson hopes that the policy will result in an increase in morale, creativity and productivity. It follows a similar approach already adopted by Netflix and other employers in the US.

However, there are concerns that an unlimited policy and the lack of formality could lead to staff taking less holiday than if they had a set holiday allowance. Fears about job security, performance appraisals and an element of competitiveness between staff could mean that staff are unwilling to take even the statutory minimum holiday entitlement (28 days per year for full time staff).

There may also be practical issues. For example, will the employer simply allow staff to take "holiday" when they are sick, therefore effectively giving them unlimited sick pay?


Two separate reports have turned the spotlight on the under representation of women in the theatre and film industries.

Tonic Theatre, a project set up to encourage gender equality in the theatre industry, found that women are underrepresented in all aspects of theatre. Their findings included:

  • women made up only 24% of writers of new plays
  • only 29% of plays currently in the West End are directed by women and a similar percentage of the actors are women.

A separate report by the United Nations found that in the film industry:

  • less than 33% of all speaking roles went to women
  • only 22.5% of employees involved in the making of fictional films are women.

The findings follow the release of the Equal Pay Barometer, a website allowing people to check the average salary in Wales for various jobs to see if a gender gap exists. The website is part of an EU funded project aiming to address the gender pay gap.


The campaign group, Patients First, have delivered submissions to the independent review of whistleblowing in the NHS which is being led by Sir Robert Francis. The review was set up following the Stafford Hospital scandal to investigate 70 cases of whistleblowing.

Patients First's submissions include that:

  • 79% of whistleblowers experienced bullying and nearly 95% experienced some form of mistreatment
  • all whistleblowers suffered either professional, personal or financial loss
  • 43% of whistleblowers have now left the NHS
  • 47% of cases are ongoing or unresolved and 20% of investigations were stopped at an early stage
  • In 20% of cases the whistleblower had run out of money or was unable to access legal advice and 40% said they were let down or unsupported by the relevant union.


Labour has promised to increase the national minimum wage (NMW) to £8 an hour by 2020 if it wins the next election. The NMW is currently £6.31 but will increase to £6.50 an hour from 1 October 2014.

According to Ed Miliband, the policy will:

  • increase living standards
  • better reward hard-working people
  • save money on benefits
  • assist economic growth.

Labour said this is deliberately a long term policy in order to allow businesses enough time to plan and make the necessary changes to implement it.

However, concerns have been raised that the proposal will put severe strain on businesses which employ a significant number of low paid staff, lead to job losses and, potentially, damage the economy. 


We previously reported that UNISON's judicial review application on Employment Tribunal fees was unsuccessful (see our story from 7 February 2014). The Court suggested that UNISON had brought the claim too quickly, as some of the information required was not available. However, although UNISON lost, the Court invited UNISON and others to monitor the effect of fees.

UNISON since appealed, with the appeal originally scheduled to be heard sometime between 10 September and 10 December 2014.

Today, UNISON applied to the Court of Appeal to allow it to use recent statistics in its appeal which show a large drop in claims following the introduction of fees. The Court of Appeal decided to stay (freeze) the appeal so that UNISON could instead bring a fresh judicial review claim with the benefit of the recent statistics showing a large drop in claims following the introduction of fees. The Court of Appeal agreed with UNISON that a new hearing should take place as soon as possible.

We therefore await a fresh High Court hearing to determine whether the introduction of Employment Tribunal fees was unlawful.


survey has found that 86% of women feel that sex discrimination exists in the UK financial services industry and in general they aren't optimistic that the tide will turn. The survey also found that:

  • 81% of women said they were paid less than men, with the most commonly cited pay gap being 11%-20%
  • 52% of women believed that the pay gap would not improve in the future
  • 59% of women thought there would be no improvement in the disproportionately low number of women in senior positions in the future
  • 30% of those involved in the recruitment process at banks said that they had either witnessed or experienced sex discrimination during the recruitment process at their current employer.

Many banks are trying to improve the position, especially for women returning from maternity leave, for example by providing crèches, training programmes and mentoring schemes but these do not seem to be alleviating women's concerns. Recruitment targets, policies to make it easier for women to return to work after maternity leave, support from line managers and practical measures, such as emergency childcare, are cited as the key to improvement.


During the summer, we reported on the decision by the Court of Justice of the EU (CJEU) in the case of Lock v British Gas. In this case, the CJEU decided that when a worker is on holiday, they are entitled to be paid not just basic pay but also the notional commission that they would have earned had they not been on holiday.

The next step in the case is for the Employment Tribunal to apply the UK law to the case in light of the decision by the CJEU. The first step in doing so is to decide whether the UK legislation can be read so as to comply with European law. We understand that a Tribunal hearing will take place to determine this on 20 and 21 October 2014.

If the Tribunal determines that the UK legislation can be read to comply with European law, a further hearing is scheduled to take place between 23 and 26 March 2015 to determine the other issues in the case. These are likely to include:

  • how to calculate the notional commission to pay for annual leave
  • whether to restrict the CJEU decision to the holiday entitlement under EU law (4 weeks) or to include the entire 5.6 week entitlement under UK law
  • how far claims can go back.

Meanwhile, a separate set of cases was heard by the Employment Appeals Tribunal during the summer dealing with whether workers are entitled to be paid during annual leave for the overtime that they would normally have worked had they not been on holiday. A judgment is expected in the next few months. This will hopefully take employers a step closer to having clarity on these issues.

In the meantime, employers should be considering how to fix the problems caused by the holiday pay cases.


A paralegal who worked at a law firm in Yorkshire has been prosecuted under the Data Protection Act and fined £300 for illegally taking sensitive personal data relating to over 100 people when moving to a new job. The sensitive information was contained in six emails which included workload lists, file notes and template documents.

The Information Commissioner's Office has used this case to highlight to employees the seriousness of taking personal data when leaving employment. Unlawfully obtaining or accessing personal data is a criminal offence under section 55 of the Data Protection Act, which is punishable by a fine of up to £5,000 in the Magistrates' Court or unlimited fine in the Crown Court.

Employers may wish to consider this potential course of action where employees take information without permission when leaving employment. However, it is important to remember that employers have their own data protection obligations. Employers have an obligation to protect the personal data they use in their business, which includes:

  • restricting access to such personal data to the employees who need to know it for their roles
  • training staff on how to lawfully handle personal data. 


The Ministry of Justice has revealed the quarterly tribunal statistics for the period April to June 2014. The figures show that 3,792 single claims were brought in the Employment Tribunal during this period which amounts to a 70% decline compared with the same period last year. It is also a decline of 33% from January to March 2014, which might be attributable to the introduction of Early Conciliation which has prompted some settlements prior to claims being brought.

This week, ACAS also released the Early Conciliation (EC) statistics for the same period (see our story of 4 September). The total number of EC notifications made in June 2014 was 6,768. The average number of single claims per month in this period (1,264) is 5.3 times lower than the number of EC notifications. Even allowing for the average of 16.5% of EC notifications which resulted in settlement, many more EC notifications are being made than the number of claims actually brought. This is understandable, given that EC is free and bringing a claim is not. Employees may therefore submit an EC form in an attempt to reach settlement, knowing privately they wouldn't bring a claim anyway. Employers should be aware of this and think twice before automatically settling claims during the EC period.

It is worth remembering that these statistical comparisons are not perfect. For example:

  • the EC figures also include multiple claims, but we do not know how many EC forms were submitted in respect of those claims
  • a separate EC form must be submitted for each defendant in a claim.

We would therefore expect more EC forms than the number of single claims even if every EC form resulted in a claim, although the current disparity between the number of single claims and EC forms seems high.


Shadow Business Secretary, Chuka Umunna, has announced at the TUC Congress that if Labour wins the next election, it will reform the Employment Tribunal system.

Mr Umunna didn't explain what is proposed, but said it is important to ensure that affordability is not a barrier to employees seeking redress in the workplace, which implies either change to or abolition of Employment Tribunal fees. However, he said that Labour does not suggest returning to the "system of the past" which he described as "so slow that meaningful justice was not available".

Mr Umunna said that Labour proposes to create a new system which ensures that all workers have access to justice. He suggests that the new system will be fairer, more streamlined and less bureaucratic for both employees and employers.

Separately, Mr Umunna also said that a Labour Government would take action to protect agency workers' right to equal pay by abolishing the Swedish derogation in the Agency Workers Regulations. In certain circumstances, this derogation grants an exemption to agency workers' entitlement to the same "basic working and employment conditions" as comparable employees.


ACAS has released statistics for early conciliation (EC) from 6 April to 30 June 2014. EC was introduced on a voluntary basis from 6 April 2014 and became compulsory from 5 May 2014.

The statistics show that:

  • approximately 7% of individuals and 9% of employers chose not to take part in EC during the quarter
  • 16.5% of cases settled during the quarter
  • 19% of individuals told ACAS that they had decided not to pursue a claim after EC (although they may have later changed their mind or, conversely, others may also have decided not to pursue their claim)
  • ACAS received 6,768 notifications in June (of which 188 were from employers, the rest from individuals).

It is difficult to assess the impact of EC on the number of Tribunal claims, particularly as we do not yet have data for the number of claims in the equivalent period. However, between January and March 2014, there were an average of 1,873 single Tribunal claims per month.

Assuming that there would have been the same number of claims in June had EC not existed, the number of ECs (6,768) was 3.6 times higher than the number of claims that would have been brought. This does, however, ignore both multiple claims, which will account for some ECs, and the fact that a separate EC has to be commenced for each Respondent to a claim.

Although EC is at a very early stage and statistical comparisons are difficult, Employers may wish to be cautious about settling claims during the EC period given that the statistics suggest that many individuals who commence EC will not actually bring a claim anyway.


The Metropolitan Police has been ordered to pay £37,000 in compensation to a black female firearms officer following her claims of sexual and racial discrimination, as reported in our story of 7 April 2014. The Employment Tribunal found that the Met's conduct was malicious, insulting and oppressive and consequently, awarded £10,000 in aggravated damages. It also criticised commissioner, Sir Bernard Hogan-Howe, for not expressing any regret.

The Tribunal also recommended that an independent review looks into internal complaints of discrimination made by officers since 2009 and considers how the Met deals with future discrimination allegations.

The power for Tribunals to make recommendations in discrimination cases is due to be abolished if the Deregulation Bill is introduced. The Government considers this power to be unnecessary on the basis that it is rarely used by Tribunals.


The Liberal Democrats have committed to include in their manifesto a plan to increase fathers' paternity leave to six weeks. Currently fathers are entitled to two weeks' leave. The six weeks available to fathers would be on a 'use it or lose it' basis and would be paid at the statutory rate for paternity pay which is currently £138.18 per week.

Separately, from next April fathers will be allowed to share their partner's leave following the introduction of the Shared Parental Leave Regulations. The Government hopes that this will allow a better split of caring responsibilities between the couple at home, and will in turn lead to greater equality in the workplace.  

However, according to the Liberal Democrats, international evidence suggests that fathers' use of parental leave is higher when it is offered as targeted leave rather than as shared leave.


The Government has launched a consultation considering how to prevent employers from avoiding the forthcoming ban on exclusivity clauses in Zero-Hour Contracts (ZHCs). This consultation follows the Government's decision to make exclusivity clauses unlawful as reported in our story of 25 June 2014.

The consultation includes the following issues:

  • the likelihood of employers avoiding the ban on exclusivity clauses
  • how potential avoidance should be dealt with
  • the consequences for employers who circumvent the ban.

The Government appears to be considering waiting to see whether employers seek to avoid the ban before introducing anti-avoidance measures. It is also encouraging business representatives and trade unions to work together to develop sector-specific codes of practice regarding the use of ZHCs.

The closing date for responses to the consultation is 3 November 2014.


ACAS has published guidance explaining what employers need to consider when introducing a dress code to the workplace. The guidance covers issues such as avoiding unlawful discrimination and ensuring that the dress code applies appropriately to both men and women. Some brief guidance is also given about tattoos and body piercings, with employers being reminded to have a reasonable business reason for enforcing any restrictions. Dress code policies should be communicated clearly to all staff. 

The guidance follows reports earlier this summer of a woman being dismissed for having a tattoo on her foot which she refused to cover up, in breach of the dress code.


Research, conducted by the TUC, has revealed that the majority of women working part time in over 50 local authorities earn less than the living wage. According to the research, around 40% of part time jobs pay less than the living wage and women account for almost 75% of the six million part-time workforce in the UK. As such it is mainly women who fail to earn more than the living wage.

The statistics show that the areas with the highest proportion of part-time women earning less than the living wage are West Lancashire (73.9%) and West Somerset (66%).

Previous analysis conducted by the TUC found that part-time work is heavily concentrated among low paid jobs, with 66% of the jobs in the ten lowest-paid professions, such as cleaners and bar staff, being done on a part-time basis. This compares with fewer than one in ten employees in the ten best paid professions working part-time.


Ian Moody,  Crystal Palace's Sporting Director, and Malky Mackay, the former Manager of Cardiff FC, allegedly exchanged text messages containing racist and homophobic comments. The text messages were released by Cardiff FC as evidence of misconduct by Mackay and Moody during their time working with the club. Moody has now resigned and Mackay's expected appointment as the next Manager at Crystal Palace has apparently now been shelved.

The League Managers Association (LMA) has subsequently come under criticism for releasing a statement in which it acknowledged that the text messages were 'disrespectful' but attempted to defend them as 'friendly text message banter'. As a result of the statement Cardiff FC have called for LMA Chief Richard Bevan to resign.

Employers should remind their employees that behaviour in their private lives can have an impact professionally if it is thought that it brings their employer into disrepute. Further, employees should be especially aware that discriminatory comments made in the workplace are unlikely to be successfully excused as friendly banter.  


Saga, the insurance company for over-50s, has recently reported that the number of over-65s in employment has increased by 36% since the coalition government came to power in May 2010. The number in employment now stands at 1.09 million. In the same period the number of 50-64 year olds has risen 9% to just under 8 million. Saga claims that part of the reason for the increase is the abolition of the default retirement age in 2011.

In a separate report, the Office for National Statistics has revealed that the number of over-65s who are self-employed has more than doubled in the last five years to nearly 500,000.

However, despite these positive figures, unemployment among 50 to 64 year olds has reportedly fallen more slowly than for younger workers.

Employers should be careful not to discriminate against an applicant because of their age, which is a protected characteristic under the Equality Act 2010. Also, since a change to the law in 2011, compulsory retirement amounts to age discrimination unless it can be objectively justified or the employer can establish that being below that age is an occupational requirement. 


A Freedom of Information request has revealed that between 2009 and 2014 there were 828 incidents of inappropriate behaviour by Police Officers on social media and of those incidents 9% ended in resignation, dismissal or retirement.

The incidents included:

  • a community support officer given a final written warning after posting photos posing with weapons
  • a police officer who was given the same treatment after inappropriately asking a female member of the public to be friends on Facebook during a house visit, and
  • two special constables who resigned after a picture was published of them in a compromising position.

The College of Policing has published a code of ethics which sets out the standards that is expected of officers at work, online and offline.

It is sensible for employers to have a clear policy regarding the use of social media. An employee's behaviour on social media may be grounds for dismissal if it can be shown to be sufficiently serious by bringing the employer into disrepute, regardless of whether the online comments were made outside of work in their private lives.   


A recent survey has revealed that 40% of managers admit to being "wary" about hiring women of a child bearing age. The survey questioned 500 managers and discovered that a similar percentage would be concerned with hiring a women who already had a child. Further, 33% of managers said they would prefer to recruit a man in his 20s or 30s than a women of the same age.  

These discriminatory attitudes are clearly felt by women in the workplace. According to a recent survey, a significant number of new mothers face some form of discrimination when returning to work, often resulting in being given a different role than the one previously held (see our story of 12 August 2014).


A survey conducted by the Fawcett Society has revealed that 10% of women in low paid jobs who returned to work in the last five years returned to a more junior role. The research focused on women in the UK who were earning £7.44 an hour or less.

The reason given by those surveyed for the change in role ranged from the previous role not being available part-time (50%), the role had been given to someone else against their wishes (33%) or the role had become redundant (10%). Nearly 25% also believed that their opportunity for promotion had worsened after returning from maternity leave.  

Broadly, and assuming a redundancy situation has not arisen, a woman who has taken up to 26 weeks' maternity leave has the right to return to the same job.  A woman who has taken more than 26 weeks' maternity leave or has taken 4 or more weeks of parental leave has the same right unless it is not reasonably practicable for the employer to permit her to return to the same job, in which case she has the right to return to a suitable alternative job. In both cases, her terms and conditions must not be less favourable than they would have been if she had not been absent.


An Employment Tribunal expressed astonishment at the BBC's "cavalier disregard" for the disciplinary process when dismissing its former Technology Chief over a failed £100m Digital Media Initiative (DMI). John Linwood was dismissed following the failure of the DMI scheme which was scrapped in May 2013.

The Tribunal found a number of failings with the BBC's conduct including:

  • deciding that Mr Linwood's dismissal was a foregone conclusion in a series of emails prior to the disciplinary hearing
  • interviewing replacements before the disciplinary procedure had begun
  • failing to conduct an investigation before the disciplinary hearing began  providing Mr Linwood with thousands of emails to review only a few days before a hearing 
  • responding to Mr Linwood's request to postpone the hearing to consider the documents by bringing forward the date of the hearing.

Given the findings which we assume were fairly inevitable based on the evidence, it is unclear why the BBC fought this case all the way to the Tribunal. It may be that Mr Linwood wanted a finding in his favour by the Tribunal. It is a reminder to employers that a basic level of fairness in disciplinary processes is probably worthwhile, even if the intention is to settle any proceedings.


Jennifer Newman, a recruitment manager, has won nearly £30,000 in a harassment claim. The treatment suffered by Ms Newman reportedly included the Managing Director referring to her as 'proper top totty' in front of clients and comparing her to a picture of a semi-naked woman in bondage gear. After reporting the issue to HR, Ms Newman is said to have been told within an hour of returning from holiday that her role was redundant.

Harassment occurs when unwanted conduct related to a protected characteristic (in this case sex) has the purpose or effect of violating another's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Employers should be wary of workplace "banter" which can be offensive and unlawful. Employers should take action in respect of any inappropriate conduct.


The Government's new Health and Work Service will be rolled out from late 2014 to May 2015. 

The new service intends to help employees return to work by providing them with an occupational health assessment when they reach 4 weeks' sickness absence. Referrals to the assessment will be given by GPs and then a "return to work plan" will be provided to the employer and GP.  

The service will be delivered by Health Management Limited, the UK's largest independent occupational health provider. 

The Government hopes that the service will assist employers in managing sickness absence, cut sick pay costs and improve economic output. 


The Office of Tax Simplification (OTS) has published a report on taxation of employee benefits and expenses, and has suggested the removal of the £30,000 tax exemption for compensation payments on termination of employment.

The current rules have been criticised for being misleading and confusing leaving some people  under the false impression that the first £30,000 of any termination payment will be tax free. That is not the case. The circumstances and nature of the payment need to be considered to establish which part, if any, is exempt from tax.

If the change was implemented, the OTS suggested that a new income tax relief could be introduced for cases of redundancy, based on a multiple of the statutory redundancy payment.

Even if the proposals were accepted by the Government, the OTS commented that they were not likely to be introduced in the near future. 


The Supreme Court has decided in the case of Hounga v Allen that a claim for race discrimination under an illegal contract can proceed. The case involved Miss Hounga who entered the UK using a false identity organised by the family of the Respondent, Mrs Allen. For the next 18 months, Miss Hounga lived with Mrs Allen and her husband who employed her without pay to look after their children. Miss Hounga suffered serious abuse during her employment. She brought a claim of racial discrimination.

Although her claim had been allowed to proceed by the Employment Tribunal and Employment Appeals Tribunal, the Court of Appeal had held that on a public policy basis, Miss Hounga should not be allowed to claim discrimination in relation to her unlawful contract.

However, the Supreme Court has now decided that although she would not be able to enforce her illegal contract or claim unfair dismissal, she could claim discrimination because this was not "inextricably linked" with the illegal contract. In addition, there were public policy reasons for allowing her claim, as otherwise employers might be encouraged to enter into illegal contracts or believe they could discriminate freely.


A survey carried out by the Fawcett Society, a women's equality charity, found that 32% of women were working on zero-hour contracts (ZHCs) in London compared to 14% nationwide.

Most of the women said they did not choose ZHCs but felt pressured into accepting the contracts because of their circumstances. The reasons given ranged from ZHCs being the only work available (40%), being pressured by their employer (17%) and feeling pressured by the local job centre (8%).

ZHCs have been criticised for not guaranteeing enough work whilst restricting workers from working elsewhere. The Government plans to ban exclusivity clauses in ZHCs , whilst Labour have pledged to introduce a range of restrictions on ZHCs.


An estate agent has been dismissed for posting anti-Semitic remarks on his Twitter page after becoming involved in an online row at the weekend between footballers Joey Barton and Yossi Benayoun about the on-going Gaza crisis.

Mr Ladd's employer is said to have been "horrified" by the remarks, and he was dismissed for gross misconduct.

Employers may wish to consider warning staff about responsible conduct on social media, even if social media is being used in a personal, rather than professional, capacity. Although this is an extreme example, employees should be cautious about what they say on social media. Comments on social media that bring themselves or their employers into disrepute may be grounds for disciplinary action, including dismissal.


John Iteshi, a barrister, has been barred from bringing Employment Tribunal claims after bringing approximately 30 vexatious claims over a four year period.
Mr Iteshi repeatedly brought claims for race and sex discrimination against agencies and recruiters following unsuccessful job applications. His claims are estimated to have cost the other parties involved £500,000 to defend.

The Attorney General (AG) decided it was in the public interest to make a restriction of proceedings application in relation to Mr Iteshi as a result of his numerous claims. This application succeeded, with the Employment Appeals Tribunal finding that almost all of the claims brought by Mr Iteshi were 'weak or hopeless'.

When the AG receives a complaint about an individual's litigious activity,  if the AG is persuaded that the complaint merits investigation, the AG will usually instruct the Treasury Solicitor to investigate. The AG may then decide to make a restriction of proceedings application. The Appeal Tribunal can grant such an application if it is satisfied that a person has habitually and persistently and without any reasonable ground instituted vexatious proceedings or made vexatious applications in any proceedings.  The individual is then prevented from bringing proceedings without the leave of the Appeal Tribunal.


The gender pay gap has widened in the last year, according to figures from the Office for National Statistics. These show that across the UK, women earn on average approximately 80p for every £1 earned by men.

In London, the gender pay gap has widened in the last year, with women's earnings decreasing from 93.2p in 2012 to 91.9p in 2013 for every £1 earned by men.

The differential is also reflected in jobs dominated by women. For example:

  • 92% of hairdressers are women, but those working in full time positions are paid 18.8% less than men
  • 63% of cleaning jobs are occupied by women, but they are paid 5% less than men.

Last week, the Lib Dems made a manifesto commitment to require large companies to publish equal pay statistics (see our story below from 18 July 2014). Gloria De Piero, the Shadow Minister for Women and Equalities, has confirmed that a Labour government would also introduce this requirement.


A recent study conducted by writer and producer Stephen Follows has found that women are still under-represented in the film industry. The study analysed the roles of women in the 100 highest grossing films at the US Box Office for each year from 1994 to 2013. It found that:

  • in 2013, less than 2% of Directors were women and only one of the top 100 films had a female composer
  • the percentage of female crew members actually decreased slightly between 1994 and 2013, from 22.7% to 21.8%
  • the proportion of women in jobs traditionally seen as more female, such as costume and make up, increased whereas it decreased in the three significant creative roles of writer, director and producer.

The study did not go on to look at the reasons behind the under-representation. Discrimination is likely to play a part, but it is likely that there are also other reasons underlying the findings, for example whether women are as likely as men to want to work in the film industry or to obtain any qualifications necessary to do so.



The European Court of Justice (ECJ) will address this question later this year. In the meantime, the Advocate General (AG) of the ECJ has delivered an opinion on the issue. His opinion is not binding on the ECJ, but the ECJ often follows the opinion of the AG.

The AG said that where an individual's obesity hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability. He went on to say that he thought that probably only a Body Mass Index of over 40 would create limitations that amount to a disability (although, despite this comment, it is difficult to see how the precise BMI is relevant given that the focus of the test is the effect that obesity has on the individual).

The AG refers to "professional life" because the ECJ test for disability uses different wording to that of the test in the Equality Act, which refers to the person's ability to carry out normal day-to-day activities.


The Lib Dems have announced a manifesto commitment to require companies that employ more than 250 people to publish the average pay of male and female employees. Failure to do so would result in a fine of up to £5,000.

The power to introduce these provisions already exists in the Equality Act 2010, but has not been used by the Government. Instead, a voluntary scheme was introduced but it is reported that only 140 companies have signed up.

The median hourly pay for men in 2013 was £12.97 whilst for women it was just £10.33. Jo Swinson, Women and Equalities Minister, has urged women to be tougher in negotiations about salary and has suggested that availability of figures comparing men and women's salaries would assist.

However, Frances O'Grady, leader of the TUC, has previously said that the TUC has evidence that bosses find it easier to say 'no' to women, making it more difficult for them to request pay rises.


After much speculation (see our story from 7 July 2014), the Conservative party has outlined its proposed changes to strike laws. These include:

  • at least half of all eligible union members required to vote in order for strike action to be lawful (there is currently no turnout threshold)
  • a three month limit for industrial action following a successful vote (currently, there is no time limit)
  • unions being required to explain on the ballot paper the exact form of action they are proposing, with a vote on each aspect of the dispute
  • unions being required to provide employers with 14 days' notice of industrial action (currently 7 days).

The Trades Union Congress have claimed that the proposals will make it almost impossible to strike, and highlighted that there is no turnout threshold to be elected as an MP. It has also called for voting to be able to take place electronically in order to encourage a higher turnout. 


From August the Metropolitan Police will only recruit people who have lived in Greater London for at least three of the last six years. It intends to ensure that the force is more culturally representative of the London public. 40% of those living in London are Black or Minority Ethnic (BME), but only 11% of the Met are BME.

The Met seems to be in danger of indirectly discriminating against certain groups. The requirement is likely to be a "provision, criterion or practice" which puts those with certain "protected characteristics" at a disadvantage.

The Met would presumably try to objectively justify any indirect discrimination on the basis that the policy has a legitimate aim, for example ensuring that those who work in the Met are familiar with London. However, it would also need to demonstrate that the policy is proportionate, ie that it goes no further than reasonably necessary to fulfil the aim. It could be argued that the proposal as reported does not meet this test. For example, it would be more proportionate for the Met to allow exceptions for those who have not lived in London for three of the last six years but who can demonstrate comparable knowledge of London.


study conducted by the Employers Network for Equality and Inclusion has revealed that the levels of unconscious bias against disabled people are nearly 8% higher than before the Paralympic Games in 2012.

The study suggests that the positive role models of the Paralympic athletes has failed to reduce the unconscious bias faced by disabled people. It also found that unconscious bias against disability is higher than unconscious bias in relation to race and gender.

Government figures suggest that 68% of people think the attitude of the public towards disabled people have improved since the Paralympic games. However unconscious bias is, of course, unconscious. The Implicit Association Test is designed to discover unconscious biases which the subject may be hiding, whether from the questioner or from themselves.

Employers need to be aware of the potential for unconscious bias in the workplace, for example in relation to recruitment and promotion. Have you tried the unconscious bias test?


Eight construction companies have launched The Construction Workers Compensation Scheme in an attempt to compensate workers affected by past blacklisting in the industry.

The blacklisting was originally discovered in 2009 when the Information Commissioner's Office seized a database containing the names of over 3,000 active union members, shop stewards, health and safety representatives and political activists. Several construction companies had been using the list for employment vetting.
The compensation scheme offers workers on the list a 'fast track' option which pays out fixed compensation between £4,000 and £20,000 depending on how much information was held about that individual. Alternatively, workers can opt for a 'full review' under the scheme whereby they can recover up to £100,000 if they can prove actual losses.

Unions have criticised the scheme, branding it a PR stunt with grossly inadequate levels of compensation, and are urging members to avoid the scheme and contact their unions for support and advice.  


A nurse has succeeded in her whistleblowing and unfair dismissal claim after being treated poorly because she raised concerns about patient care.

Ms Fernandez was concerned that healthcare assistants did not have the necessary skills to care for patients adequately. It is reported that when she emailed the health board about these concerns, her email was forwarded on to her managers, who subsequently threatened her with disciplinary action.

Her managers are also said to have encouraged the husband of one of her patients to make a complaint about her. Despite his refusal to complain, the managers sent Ms Fernandez a warning letter claiming he had complained.

The Tribunal ruled that Ms Fernandez was seen as a troublemaker by her employer and a threat to its commercial interests. It was ordered to pay her £81,608.

The Government has recently announced a review into how whistleblowers are treated in the NHS, led by Sir Robert Francis QC. This follows growing fears that staff are worried about speaking out because of the way they expect to be treated as a result. The enquiry will consider how to protect whistleblowers from reprisals and how to change the culture of the NHS so that staff feel able to raise concerns. 


A new guide from fraud prevention officers has been sent to every university in the country, warning students that telling 'white lies' on their CVs could lead to prison. The guide states that lies, such as inflating grades, can be classed as 'fraud by false representation'. The guide refers to a woman being jailed for six months for lying about having two A-levels.

Research has previously found that as many as 20% of people would lie on their CV if they thought it would help them to get a job. One such example from last year is Barrister Tom O'Riordan, who lied on his CV about achieving a degree at Oxford and a masters at Harvard. It transpired that he had not attended either University.

The reality is that many people are undeterred from lying by the risk of criminal prosecution. Employers should ensure that they have procedures in place to check references and qualifications to avoid potentially embarrassing and costly situations where staff are not properly qualified to do their jobs.


A study by Professor Zaichkowsky at Simon Fraser University has found that companies with even one woman on their Board had stronger corporate governance ratings than those with no women.

The report found that the presence of women encourages a greater focus on Board practices and behaviours related to good governance, particularly in traditionally male-dominated industries.

These results should help to demonstrate to companies that there are many benefits of having women on the Board. There are a number of factors which contribute to the current under-representation of women, many of which are not easy to resolve. However the research emphasises that there is much to be said for taking the first step of appointing a woman to the Board. 


The CBI have entered the debate about the recent decision of the European Court of Justice (ECJ) in relation to holiday pay and commission (Lock v British Gas). In short, the ECJ said that workers on annual leave are entitled to be paid not just basic salary but also the notional commission that they would have earned had they been at work selling.

The Employment Tribunal now needs to determine whether the UK legislation can be read compatibly with EU law. If it can, workers will potentially be able to claim lost pay going back either 6 years or possibly to 1998. Meanwhile, a separate Employment Appeal Tribunal case will determine whether workers are entitled to be paid for overtime during their annual leave.

Katja Hall, Deputy Director-General of the CBI, has warned that if the UK Employment Tribunals allow historic claims, it could cost millions of pounds for each business and some may become insolvent.

There is much to be said for the CBI's position. Businesses who have complied with UK law as it stood now face the potential of substantial claims. However, businesses who take proactive steps before facing claims could substantially reduce their liability.


Grazia magazine has launched a campaign to end the pay gap between male and female employees.

In particular, Grazia is calling for Section 78 of the Equality Act 2010 to be enforced. This requires any employer with more than 250 staff to publish details of how much male and female employees earn annually, enabling women to see if they are earning less than their male colleagues.

On average women still earn 16% less than male colleagues, effectively earning only 80p for every £1 received by men.

According to figures based on the Office of National Statistics Annual Survey of Hours and Incomes, the pay gap is in fact worsening, having doubled since 2010 for men and women in their twenties.

The petition requires 100,000 signatures to get the issue debated in Parliament. 


Cabinet Office Minister Francis Maude revealed that the Conservatives will introduce new laws to curb the right of public sector unions to strike. Mr Maude explained that the new legislation was aimed at preventing strikes with 'weak' mandates or those resulting from ballots taken more than two years previously.

Mr Maude echoed the views of David Cameron by suggesting that a strike should be supported by at least 50% of all members, below which there would not be a valid legal mandate for strike action. Current law allows strikes to go ahead if they are backed by a simple majority of those who voted.

On Thursday 10 July 2014 an estimated 1 million public sector workers will go on strike over pension cuts and performance-related pay, including teachers and NHS staff. 


Research by PwC has found that staff lying about sickness absence is costing UK businesses an estimated £9 billion per year. It found that the cost of "sickies" make up almost 40% of the total cost of sickness absence. 32% of people had called in sick when hungover, 26% because they were bored with their job and 26% to attend interviews.

The research suggests that the changes to flexible working introduced on 30 June 2014 could play a key factor in reducing absence at work. Flexible working may encourage a greater work/life balance and motivate staff, making them less inclined to lie or embellish to get out of work. This could help to increase productivity in the workplace.

The research also found than 10% of people would be put off from lying if they had to report the reason for absence to their manager by phone. Employers should take note of this and consider including this requirement in sickness policies. 


An Enhanced Voluntary Code of Conduct for Executive Search Firms has been introduced. The Enhanced Code is intended to encourage the recruitment of women to FTSE 350 Boards and to increase gender diversity in both executive and non-executive roles in the UK.

To demonstrate that they meet the requirements for accreditation under the Enhanced Code, recruitment firms may submit evidence to the Davies Steering Group that they have:

  • supported the appointment of at least 4 women to FTSE 350 Boards
  • achieved a proportion of at least 33% female appointments in their FTSE 350 Board work
  • have a proven record of helping women to achieve their first FTSE 350 board appointment
  • shown a commitment to gender diversity in their daily practices.

The Code is designed to drive UK businesses closer to achieving the target of 25% female board representation set by Lord Davies in his report of 2011 and to demonstrate the recruitment industry's commitment to gender diversity.


The Central London Employment Tribunal has found that the Metropolitan Police told staff to delete references to discrimination and harassment relating to sex and race in a report into a complaint made by an employee. 

The Tribunal found that Ms Howard, who worked in the Diplomatic Protection Group, had been discriminated against on the grounds of her race and sex between 31 January 2012 and 29 October 2012. Ms Howard is now expected to seek compensation from the Met for injury to feelings and aggravated damages.

This judgment is especially damaging for the Met after it was found to be institutionally racist in 1999 following the MacPherson Inquiry into the conduct of the investigation into the murder of Stephen Lawrence.


Under the Transfer of Undertakings (Protection of Employment) Regulations 2006, employers are required to provide "employee liability information" to the new employer at least 28 days before the transfer date.

However, employers also have to consider the requirements of the Data Protection Act 1998 when dealing with personal data.

The UK Information Commissioner's Office has published some brief guidance. Read more about the guidance and the interaction between TUPE and data protection law.

30 June 2014 - Flexible working is extended to millions of UK employees

From today millions of employees in the UK now have the right to request flexible working. This right was previously only granted to carers and those looking after children.

Under the new law employees with more than 6 months' service are eligible to request flexible working and the request must be considered in a reasonable manner by employers.

The government hopes that flexible working will allow individuals to balance their work with domestic responsibilities and will also enable companies to retain staff. It is believed that flexible working will be particularly attractive to older workers approaching retirement and younger workers who are looking for additional training whilst working.

For more information on the changes and how to prepare, see our article from the 6 June.

26 June 2014 - BBC aims to increase diversity on and off-screen

The BBC has introduced new measures to address on and off-screen representation of black, Asian and minority ethnic (BAME) communities. These include a senior leadership development programme for 6 people from BAME backgrounds and a £2.1 million Diversity Creative Talent Fund. The purpose of the fund is to address the portrayal of BAME communities within the BBC's programmes and to encourage BAME writers, talent and production staff.

In response to the BBC's plans, actor Lenny Henry has suggested that the BAME community had "initiative fatigue". The latest plans are the 29th initiative to increase diversity in the past 15 years, yet the number of people from BAME backgrounds has decreased. Mr Henry argued that the old model of increased training does not deliver change.

The £2.1 million fund has also been criticised as insufficient given that the BBC's content budget is reportedly over £1,789 million. 

25 June 2014 - Government plans to ban exclusivity clauses in zero hour contracts

The Government has announced plans to ban the use of exclusivity clauses in zero hours contracts (ZHCs) thus giving employees the freedom to work for more than one employer. Exclusivity clauses are seen as one of the more controversial elements of ZHCs because they restrict and individual from finding work with another employer even when no work is guaranteed under their ZHC.

This recent proposal follows a Government consultation into ZHC which received 36,000 responses.  83% of responses favoured of banning exclusivity clauses.  The Government estimates that 125,000 workers in the UK have exclusivity clauses in ZHCs.

The Government will now consult further on how to prevent the ban from being evaded, for example by employers offering 1 hour contracts. It also plans to develop a code of practice  on the "fair use of zero hours contracts" by the end of 2014.

Even if the Government finds a way to stop obvious abuse, it is difficult to see how this alone will achieve the desired result. Exclusivity clauses would be void, but that doesn't stop employers in practice refusing to give further work to workers who take other roles or are not available when wanted. The draft legislation containing these reforms also gives the Government the ability to make further Regulations to deal with this issue, but it is not yet clear whether anything is actually proposed.

Meanwhile, Labour have their own, alternative, plans to tackle the 'worst abuses' of ZHCs, if they win the 2015 General Election. We discussed these in our story from 28 April 2014.  

24 June 2014 - Living Wage Commission calls on Government to lift 1 million people out of poverty by 2020

The Chairman of the Living Wage Commission, Dr John Sentamu, has suggested that public sector workers should receive a 'living wage' and has called on the Government to lift 1 million people out of poverty by 2020.

The living wage is based on the basic cost of living in the UK and is currently £7.65 an hour (£8.80 in London). As it stands, this figure is over 20% higher than the minimum wage.

The Commission also advocates extending the living wage policy across the private sector, but accepts that this is not necessarily viable for all businesses. For example, small businesses have argued that they do not have the resources at their disposal to make it commercially viable.

There are currently no plans to make paying employees the living wage a statutory requirement, however there may be increasing social pressure to do so.  There are currently said to be 712 employers across the UK which pay the living wage.

20 June 2014 - 8.7 million UK workers would like to work flexibly

Research conducted into flexible working in the UK has revealed that almost two in every five full time workers in the UK would like greater flexibility in their working hours, for example by working part time or working more remotely.

According to the report, 8 million people across the UK already work part time and a further 4 million usually work from home. However, the research has revealed that candidates seeking a brand new flexible job are still facing significant barriers. 20% of managers interviewed stated that no roles within their organisation are advertised as being open to flexibility.

Lynn Rattigan at Ernst & Young asserts that "the best businesses need to embrace flexible working… to keep attracting the brightest and best talent."

Some have predicted a large influx of flexible working requests once all employees with sufficient service have the right to make a request. The reality may be more gradual, but it seems likely that demand is there from employees for greater flexibility. 

Are you ready for the changes to the right to request flexible working?

18 June 2014 - Report reveals racial inequality in top management positions

A report, written by Business in the Community (BITC) and using data from the ONS, has found that Black, Asian and Minority Ethnic (BAME) people are underrepresented in management positions.  The report revealed that only 6% of top management positions, and 7.9% of management positions were held by BAME people in 2012. This compares to 10% in total employment in the UK.

The UK Corporate Governance Code states that consideration should be given to the benefits of diversity when making appointments to the Board, specifically mentioning gender but not race. Sandra Kerr, Director of BITC, is calling for the Government to include the wording "and race".

However, the Government is reportedly not considering a review for race, due to the limited time left in this Parliament and because it is easier to measure the gender of FTSE-100 directors rather than ethnicity.

18 June 2014 - Civil Servant sacked for offensive Hillsborough comments on Wikipedia

A junior civil servant has been sacked after making offensive remarks about Hillsborough on a Wikipedia page dedicated to the tragedy.

Minister Francis Maude explained that the unnamed 24 year old was subject to a formal disciplinary procedure before being dismissed for gross misconduct. However, the investigation has been unable to identify the source of other abusive edits on the webpage made in 2009.

This story serves as a warning to both employees and employers of the potential consequences resulting from the misuse of internet and IT services. We commented further on this in our story of 28 April 2014 when the news broke that the comments had been posted on Wikipedia.

17 June 2014 - Narcissistic personalities perform better in job interviews

A study by the University of British Columbia has found that candidates with narcissistic personalities are more successful in job interviews than more modest but equally qualified candidates. The study involved providing 72 participants with questionnaires to determine their levels of narcissism and then scoring them in mock job interviews.

The research revealed that applicants from countries with cultures that generally promote humility, such as Japan, China and Korea, were less likely to receive 'definitely hire' ratings.

Employers should be aware of the risk of indirect discrimination if, for example, their recruitment processes disadvantage people of a particular nationality. According to the Professor who lead the study, outside of job interviews, narcissistic behaviours such as boasting are usually off-putting, especially after repeated exposure. This might make it difficult for employers to justify any indirect discrimination that resulted from selection via job interviews as, if the research is accurate, job interviews seem to be favouring a quality that is not normally seen as particularly desirable in many workplaces.

The results of this study would not necessarily be the same if it were conducted in the UK or on a larger scale. However it is a useful reminder to employers to ensure that recruitment practices are assessing the qualities needed in the particular organisation.

16 June 2014 - Employment Tribunal Statistics reveal drop in claims

The Ministry of Justice has recently published the quarterly Employment Tribunal statistics for the period January to March 2014 which reveal a significant drop in both single claims and multiple cases compared to the same period last year. Single claims have fallen by 58.4% whilst multiple claims have fallen by 67.8%. 

These figures are similar to those for the period October to December 2013, which also revealed a fall in the number of claims.

Collectively, the figures almost certainly indicate that the dramatic fall in the number of claims is as a result of the introduction of Employment Tribunal fees on 29 July 2013. It is likely that the figures will be used by UNISON in support of their appeal against the dismissal of their application for judicial review of Employment Tribunal fees. UNISON were originally unsuccessful (see our story from 7 February 2014) but the statistics may prove decisive in a different outcome at appeal, which is due to be heard between 10 September and 10 December 2014.

16 June 2014 - Sickness absence from work is at a record low

The number of days taken off work through sickness is at a record low of 2.1% which is equal to 4.9 days per worker per year. This is according to a survey conducted by industry body EEF based on 330 firms over the past two years.

However, despite a fall in short term absences, there has been an increase in long-term illnesses. Almost 40% of the employers surveyed stated that long term absences have increased in the last two years. In addition, many employers have reported a rise in workers with mental health problems.

EEF has suggested that the rise in mental health problems reflects the effect on employees of the long period of recession and austerity. It also suggested that the fall in short term absences is evidence of improved absence management by companies.

12 June 2014 - Employment Tribunal case round-up

You probably know about commission and holiday pay and that LLP members can be workers.  But what else has happened in recent employment cases?

We look at 3 other cases, dealing with:

  • should adjustments be made to the trigger point for disabled employees under a sickness absence policy?
  • if an employee resigns on longer notice than is contractually required, can this defeat their constructive dismissal claim?
  • whose motives matter in discrimination claims?

Read about these cases on our June employment case updates page.

10 June 2014 - Have you decided what to do about holiday pay and commission?

A few weeks ago, the ECJ decided in the case of Lock v British Gas that commission should be taken into account when calculating a worker's holiday pay. Workers will therefore be entitled to receive commission payments even though they are not selling anything whilst they are on annual leave.

Employers who takes steps to consider the issue and its implications now are likely to have more options than those who wait for claims to be made.

We have looked at some of the options for employers in considering how to fix the problems caused by the holiday pay and commission cases.

9 June 2014 - Employment law reforms in the Queen's Speech

The Government has set out a number of further employment law reforms in the Queen's Speech. With the General election less than a year away, the latest proposals are fewer and less far reaching than in recent years, perhaps because the parties wish to save big proposals for their election campaigns.

The reforms include the following:

  • tackling failure to pay the national minimum wage - a press release suggests this is likely to be by increasing the maximum penalty to £20,000 per employee (rather than the current £20,000 in total)
  • tackling abuse of zero hours contracts (but no detail has been given)
  • requiring highly paid public sector employees to repay redundancy payments if they come back to the same part of the public sector within "a short period of time"
  • reducing Tribunal delays
  • introducing a new tax relief on childcare from Autumn 2015 (to replace the existing scheme which is currently operated voluntarily by some employers).

9 June 2014 - Football club paid less than minimum wage

HMRC has ordered a Premier League football club to pay a total of £27,500 to 3,000 staff for failing to pay the national minimum wage of £6.31 per hour.

The club underpaid the catering staff by making deductions from their wages for uniforms and travelling time. HMRC were alerted to this practice by new job advertisements indicating that the wages did not meet the legal minimum level. This is said to be the first order made following an investigation into 44 football clubs.

Jenny Willott, Business Minister, issued a stern warning to employers stating that "under the Government's new rules you will be named and shamed and face a stiff financial penalty". However, the football club has not in fact been named and the £27,500 payment amounts to less than one week's wages for the average Premier League footballer!

6 June 2014 - Flexible working: home working on the rise

The number of people working from home has risen to 4.2 million in January to March 2014, compared to 2.9 million in 1998 according to the Office for National Statistics. This means that almost 14% of those in work are working from home.  The South West of England has the highest proportion of home workers (17.1%), Scotland the lowest (10.7%), with London at 13.9%.

The majority of home workers are self-employed, but 34% are employees of an organisation. Home workers tend to be older, work in more highly skilled roles and earn more money.

This trend may increase when the law on flexible working is relaxed from 30 June 2014. From this date all employees with 26 weeks' continuous service will be able to submit one flexible working request in a 12 month period. There will be no requirement to have caring responsibilities.

4 June 2014 - Has any progress been made in removing barriers for women in the workplace?

The Women's Business Council (WBC), an independent group set up by the Government in 2012, has released its "One Year On" report, addressing the progress made in removing barriers for women in the workplace.

The report publishes encouraging statistics; there are more female graduates than ever before, more women in self-employment than ever before (1.4m), more women-led SMEs (20%) and the highest ever female employment rate (67%).

However, the report emphasises that more must be done to support gender equality in the workplace. A recent YouGov poll identified that 66% of people believe sexism remains a problem in the workplace.

The report provides a series of recommendations outlining how businesses can improve the economic potential of their female employees. These include:

  • a focus on unbiased recruitment processes;
  • facilitating access to affordable, accessible, quality childcare; and
  • supporting a culture change in the business through the promotion and adoption of flexible working.

29 May 2014 - Vince Cable pledges to tackle zero-hour contract abuses

Vince Cable, the Business Secretary, has stated that the Government aims to challenge the abuses of Zero-Hour Contracts (ZHCs) once it is understood the extent to which ZHCs are used by employers in the UK. The Government is in the process of reviewing ZHCs.

Last month the ONS reported that there were 1.4 million employment contracts that did not guarantee a minimum number of hours of work. However a more accurate figure is expected following further investigation into an estimated 1.3 million contracts that did not provide any work during the period of the study.  

The ONS has previously said that women, the young and those over 65 are more likely to be engaged under ZHCs. Although ZHCs can provide more flexible working hours, it has been suggested that they are used unfairly by some employers.

27 May 2014 - Can you spot sexism in the workplace?

Of course, you might think. But upon looking deeper it might not be that simple. A journalist, Louisa Peacock, writing in the Telegraph, recently reported on her experience of being refused entry to a London restaurant, Sushi Samba, because she was not dressed "sexy enough". Apparently she was wearing black trousers and black wedges. The dress code was "smart casual". Men wearing similar clothing were allowed in, as were women in skirts and high heels.

Ms Peacock complained. Her complaint was taken seriously by Sushi Samba, and the doorman is reported to no longer be working at the restaurant.

This incident reminds us that expecting women (or men) to look or dress a certain way can be sexism too, be that in a restaurant or the office. Employers should be careful to ensure that dress codes for male and female staff are appropriate and are fairly enforced. Where discrimination is alleged, employers should investigate and take action if appropriate.

22 May 2014 - European Court decides that holiday pay must include commission

The European Court of Justice (ECJ) has decided that payment for annual leave must include not just basic pay, but also any commission where the amount of commission is fixed in the employment contract. This is an important case for both employers and employees as there may be a flood of cases in certain sectors. Please contact us if you would like to discuss how you should react to the case.

In this case, Mr Lock was a salesman who received commission for each sale, paid several months later. When he took annual leave he received basic pay and continued to be paid any commission that became due for sales secured several months previously. However, he did not receive an extra payment for the commission that he said he would have received a few months later, had he been working (and therefore selling) during his holiday period.

Mr Lock won. The ECJ found he might be deterred from taking annual leave if he was financially worse off as a result, and it is an important principle of European law that workers are not deterred from taking annual leave. Mr Lock is therefore entitled to payment for the hypothetical commission that he would have earned during his holiday. An Employment Tribunal will now determine how that should be calculated.

21 May 2014 - Supreme Court finds LLP members are workers

In an important decision, the Supreme Court has decided that LLP members are workers.  The decision is the final word on this point in the long-running case of Clyde and Co LLP v Van Winkelhof.

The Supreme Court took a straight-forward approach looking at the wording in the Employment Rights Act.

Broadly, that covers:

  • anyone working under an employment contract; and
  • anyone working under a contract where they personally carry out work or services for another party where that other party is not the client or customer of a profession/business carried out by the person.

The parties agreed that Ms Van Winkelhof personally worked for the LLP, and that the LLP was not her client or customer.  She was an integral part of the LLP's business, worked for the LLP alone and was not able to market her services to others.

The Supreme Court also left open the question of whether the current law that a partner in a traditional partnership cannot be an employee is correct.  That question is likely to come up for consideration in the future.

We have written in more detail about the Clyde and Co LLP v Van Winkelhof decision, including looking at the implications for LLPs.


21 May 2014 - Moya Dodd claims boardroom quotas for women are needed for diversity

Moya Dodd, a member of Fifa's Executive Committee, believes quotas are a useful way of creating greater diversity in the Boardroom. She believes that ideally a meritocratic system should be in place, but that quotas are a necessary evil when merit-based systems are not working quickly enough.

Despite efforts for greater diversity, men are still a dominate presence in sport governance, much as they are in the Boardroom. Statistics from the International Olympic Committee show that women make up just 17% of the executive boards of International Sports Federations and National Olympic Committees.

Meanwhile, Vince Cable, the Business Secretary, has criticised Glencore Xstrata for being the only FTSE 100 company yet to appoint at least one woman to the Board. Mr Cable is reported to have said it is "simply not credible" that the company was unable to find any suitable qualified women.

20 May 2014 - Employers to "shop" workers to UK immigration authorities: New Civil Penalty from 16 May 2014

A new Code of Practice on preventing illegal working came into force on 16 May 2014.

Changes include a new increased civil penalty of £15,000 for employers who have employed a worker who does not have the right to work which is increased to £20,000 if the employer received a civil penalty notice in the last 3 years.

The fine can be reduced if certain mitigating factors apply and for early payment. The mitigating factors have been reduced to only three and one requires the employer to have reported the illegal worker to the Home Office. This means employers will face the choice of reporting the employee to the Home Office or if they delay, lose a mitigating factor worth a reduction of £5,000. Employers will also have data protection and Employment law concerns in reporting staff to the Home Office.

20 May 2014 - UNISON have leave to appeal Employment Tribunal Fees

UNISON, the union, has been granted permission to appeal against the findings of a judicial review on the introduction of Employment Tribunal fees. Previously UNISON lost in the High Court.

The Court of Appeal will consider UNISON's appeal, probably later this year. Additional statistics have been published since the High Court hearing, showing a 64% drop in the number of single claims between October and December 2013 (the first full quarter since the introduction of fees) compared to the same period in 2012. It is possible that those statistics will affect the outcome of the appeal, given that one difficulty UNISON had before was a lack of statistical information following the introduction of fees.

19 May 2014 - Ed Miliband proposes new minimum wage plans

Ed Miliband has unveiled planned changes to the minimum wage. He proposes to link it to average earnings and increase it so that it is closer to the average hourly earnings. However he will not reveal the exact figure until closer to the next general election.

Currently, the independent Low Pay Commission recommends the level of the minimum wage to the Government each February, although the Government does not have to accept the recommendation. The minimum wage currently stands at £6.31, or 54.6% of the median wage. 

The Conservatives and the Liberal Democrats have both previously expressed a desire to increase the minimum wage. George Osborne has suggested increasing it to £7 an hour, whilst Vince Cable has proposed setting a long term target and from October the minimum wage will increase by 19p an hour to £6.50.

19 May 2014 - High Court dismisses challenge to cap on unfair dismissal compensation

The High Court has dismissed a judicial review application which challenged the cap of one year's salary as compensation for unfair dismissal claims.

It was argued that the one year cap, which was introduced in July 2013, indirectly discriminates against older workers who are said to be more likely to have difficulty finding a new job within a year. If so, older workers will be particularly disadvantaged by the cap compared to younger workers.  

The Judgment is not yet available online so it is not clear what the rationale for the Court's decision is. It therefore remains to be seen whether, for example, the Court did not accept the claim had demonstrated that older workers are more likely to have difficulty finding a new job or, alternatively, that the indirect discrimination was justified.

The position therefore remains unchanged - a claimant who is successful in an unfair dismissal claim may be awarded compensation of up to one year's salary or £76,574, whichever is the lower.

15 May 2014 - Vince Cable wants zero-hour workers to have the right to request fixed hours

The Business Secretary, Vince Cable, has suggested that workers on Zero-Hour Contracts (ZHCs) should be given a statutory right to request from their employer a fixed-hour contract. He suggests a similar process to the existing right for employees to request flexible working patterns. Presumably his plan is therefore that an employer risks a Tribunal finding against them if they unreasonably reject the request for a fixed-hour contract.

Sources from the Business Department are reported to believe the right proposed by Mr Cable could encourage employers to improve the organisation of their workforce.

Mr Cable explained that he opposed the exclusivity provisions contained in some ZHCs but disagreed with Labour's proposal requiring employers to provide a fixed term contract to employees after a year of working on a ZHC (see our story from the 28 April 2014).

15 May 2014 - British Workers only use three quarters of their holiday entitlement

A survey of more than 2,000 staff by workplace review website Glassdoor found that British workers fail to take their full holiday entitlement and even when they take time off are likely to do some work.  On average workers take only 77% of their annual holiday entitlement, and 44 % of those surveyed said they did some work while on holiday.

The most common explanations given for working while on holiday are a fear of falling behind, a desire for a pay rise and a belief that no one else could do their job.

Given that various recent surveys have found a rise in workplace stress, it is increasingly important that employees take holidays and use the time off as a way of relaxing and recharging. Employers should communicate with their staff to manage workloads if this is proving a hindrance to taking time off.

14 May 2014 - Parliament passes motion to outlaw unpaid internships

A motion to limit unpaid work experience was successfully passed in Parliament yesterday by 181 votes to 19. The motion proposes that unpaid work experience should last no longer than four weeks, after which time the individual is considered an intern and is entitled to the national minimum wage.

The motion was proposed by Conservative MP Alec Shelbrooke, but received cross party support. The motion does not mean an imminent change in the law. A Bill will be debated in Parliament but generally Bills introduced in this way do not ultimately become law due to time constraints. However the motion demonstrates MPs' views on the issue and could influence Government policy.

Those on internships may already be entitled to the national minimum wage, depending on what they are actually doing. However at present, some businesses refuse to pay the minimum wage on the basis that the placement is "work experience". Campaign group Intern Aware has said that talented people are disadvantaged because they cannot afford to work for free. According to the think tank IPPR, in 2010 there were approximately 100,000 unpaid internships in the UK.

You may be interested in our recorded webinar on the risks and pitfalls in offering internships, work experience placements and other atypical working arrangements.

14 May 2014 - David Cameron proposes tougher strike laws

David Cameron has said that he will legislate for tougher strike laws for workers in "essential services", including the TUBE. It is unclear what exactly "essential services" would cover. 

If the Conservatives win the next election, he plans to require a strike to have at least 50% backing before being permitted. He presumably means 50% of those eligible to vote, rather than 50% of the total employees (given that not all employees are necessarily in the relevant Trade Union). Currently, a strike is possible if supported by a majority of those who actually vote. 

His comments come in the wake of a 48 hour Tube strike in London, which caused major disruption for London's commuters, despite only 29% of RMT's drivers voting in favour of the strike. A recent Yougov poll has shown that 56% of Londoners would support tougher laws and only 24% are against the proposals.

13 May 2014 - Allegations of sexist remarks made by the Premier League's Chief Executive

Richard Scudamore, the Premier League Chief Executive, made sexist comments in private email exchanges with a lawyer friend which were subsequently leaked to the Sunday Mirror newspaper. It has been suggested that Mr Scudamore could be charged under the rules of the Football Association (FA) and the Premier League's own anti-discrimination policy.

The FA has, however, reportedly declined to punish Mr Scudamore for bringing the game into disrepute because it considers the email communications to be a private matter. Mr Scudamore has emphasised that the emails were private but has apologised for his 'error in judgment'.   

This incident serves as a reminder to employees that behaviour in their private lives could impact on their professional lives, for example if it is thought to bring their employer into disrepute.

13 May 2014 - BBC Radio DJ loses job after playing a record containing a racist word

A freelance DJ for BBC Radio Devon has lost his job after playing a record that included a racist term in one of the lyrics. David Lowe played the 1932 recording of 'The Sun Has Got His Hat On' which contains the same racist word as allegedly mumbled by Jeremy Clarkson whilst filming an episode of Top Gear (see our story from 2 May 2014).  Mr Lowe reportedly offered to apologise on air or resign following the incident and the BBC said that it had to accept his offer to resign.

Mr Lowe has said that he did not realise that the song contained the offensive word and was "horrified" when he found out. David Cameron seemingly came to Mr Lowe's defence by stating that his treatment seems "slightly unfair" by the BBC if Mr Lowe did not know what was on the record. Mr Lowe has said that he is disabled with a neurological condition that is exacerbated by stress.  He has said that he now needs time to recover from the flare up of his condition caused by the incident. The BBC has reportedly offered his job back, but he has declined.

Meanwhile, the BBC reports Jeremy Clarkson as having said that the BBC have told him that he will be sacked if he makes "one more offensive remark, anywhere, at any time".

8 May 2014: Barclays to axe 19,000 jobs

Barclays' Chief Executive, Anthony Jenkins, has announced plans to cut 19,000 jobs across the bank by 2016. This announcement forms part of a wider plan to create "leaner, stronger" bank.

The UK will be hard hit by the cuts, with up to 9,000 Barclays' employees reportedly facing redundancy over the next 3 years. It is believed that a substantial number of jobs will be shed from the investment banking division, where 2,000 jobs could be axed this year, with as many as 5,000 to follow by 2016. Jenkins declared that this time would be "challenging for colleagues … unsettling for many" as the business conducts a review of each division with a view to making the redundancies.

Unions have raised concern over the impact of expected closures to high street branches. Unite's Dominic Hook commented that recent years have been "extraordinarily turbulent times for ordinary Barclays workers who have worked hard to keep the bank on track against a backdrop of continued uncertainty and redundancies".

7 May - Interim Injunction allowed Employer to inspect Employees' Home Computer

In the recent case of Warm Zones v Thorley, an interim injunction was granted allowing the employer, Warm Zones, to inspect and create images of the employees' home computers. Warm Zones alleged that the employees had been misusing its confidential information and had communicated it to a competitor. The employees' contracts of employment contained a confidentiality clause and there was strong evidence indicating misuse of Warm Zones' confidential information.

In granting the injunction the judge considered that Warm Zones had confidential information that it was entitled to protect and that it was not seeking to restrain the employees from working, but only to prevent them from using its confidential information.

This case serves as a reminder to employers of the importance of safeguarding confidential information through appropriate contractual protections and workplace policies covering use and monitoring of IT and communications systems.

7 May 2014 - Compassionate Leave Policies Benefit Both Employee and Employer

A recent survey of 730 organisations conducted by XpertHR Benchmarking found that UK employers believe compassionate leave is highly valued by employees and reflects well on employers. Being more flexible towards an employee's circumstances, may encourage the employee to return to work more effectively within a reasonable period of time. Further, a considerate approach may instil a sense of loyalty towards the employer.

The figures from the survey showed that more than 75% of employers have a compassionate leave policy in place, 60% offer full pay for compassionate leave and less than 4% grant unpaid leave.

In the absence of any statutory rights for compassionate leave, it is important that employers treat their employees sensitively whilst also satisfying the needs of the business. Employers should consider having a policy to clarify the position for employees, but retain flexibility.

8 May 2014: Barclays to axe 19,000 jobs

Barclays' Chief Executive, Anthony Jenkins, has announced plans to cut 19,000 jobs across the bank by 2016. This announcement forms part of a wider plan to create "leaner, stronger" bank.

The UK will be hard hit by the cuts, with up to 9,000 Barclays' employees reportedly facing redundancy over the next 3 years. It is believed that a substantial number of jobs will be shed from the investment banking division, where 2,000 jobs could be axed this year, with as many as 5,000 to follow by 2016. Jenkins declared that this time would be "challenging for colleagues … unsettling for many" as the business conducts a review of each division with a view to making the redundancies.

Unions have raised concern over the impact of expected closures to high street branches. Unite's Dominic Hook commented that recent years have been "extraordinarily turbulent times for ordinary Barclays workers who have worked hard to keep the bank on track against a backdrop of continued uncertainty and redundancies".

7 May - Interim Injunction allowed Employer to inspect Employees' Home Computer

In the recent case of Warm Zones v Thorley, an interim injunction was granted allowing the employer, Warm Zones, to inspect and create images of the employees' home computers. Warm Zones alleged that the employees had been misusing its confidential information and had communicated it to a competitor. The employees' contracts of employment contained a confidentiality clause and there was strong evidence indicating misuse of Warm Zones' confidential information.

In granting the injunction the judge considered that Warm Zones had confidential information that it was entitled to protect and that it was not seeking to restrain the employees from working, but only to prevent them from using its confidential information.

This case serves as a reminder to employers of the importance of safeguarding confidential information through appropriate contractual protections and workplace policies covering use and monitoring of IT and communications systems.

7 May 2014 - Compassionate Leave Policies Benefit Both Employee and Employer

A recent survey of 730 organisations conducted by XpertHR Benchmarking found that UK employers believe compassionate leave is highly valued by employees and reflects well on employers. Being more flexible towards an employee's circumstances, may encourage the employee to return to work more effectively within a reasonable period of time. Further, a considerate approach may instil a sense of loyalty towards the employer.

The figures from the survey showed that more than 75% of employers have a compassionate leave policy in place, 60% offer full pay for compassionate leave and less than 4% grant unpaid leave.

In the absence of any statutory rights for compassionate leave, it is important that employers treat their employees sensitively whilst also satisfying the needs of the business. Employers should consider having a policy to clarify the position for employees, but retain flexibility.

6 May 2014 - Early Conciliation now compulsory

From today, individuals wishing to bring a relevant claim against their employer in the Employment Tribunal must firstly notify ACAS in line with the compulsory Early Conciliation scheme. This scheme, which has been optional since 6 April 2014, requires claimants to submit prescribed information to ACAS before commencing a claim. 

Although it is mandatory for the Claimant to make the initial contact with ACAS, neither the Claimant nor Respondent have to agree to take part in settlement discussions. Either can simply refuse, and the Claimant can then bring their claim in the normal way. However if the parties both wish to conciliate, ACAS will try to help the parties to reach a settlement. 

The limitation period for claims to which compulsory Early Conciliation applies will be extended to take into account the Early Conciliation period.

We have written in more detail about Early Conciliation on our publications page.

2 May 2014 - Jeremy Clarkson allegedly uses racist language while filming an episode of Top Gear

Jeremy Clarkson has been accused of using a racist term whilst reciting the lyrics of a children's nursery rhyme on an episode of Top Gear. The footage was filmed several years ago but was not included in the episode and has never been broadcast by the BBC.

A clip of the incident has subsequently been released to the Daily Mirror newspaper and the BBC is said to have received over 300 complaints as a result of the recent media coverage. Mr Clarkson has released a video statement apologising for the fact that it sounds in the footage that he mumbled the offensive word.

It would be interesting to know what, if anything, the BBC did when it became aware of the issue. The use of racist language in the work place can have serious consequences for employers. Such comments could lead to claims of harassment against the BBC by its employees.

1 May 2014 - Survey reveals 1.4 million employment contracts with no guaranteed minimum hours

The Office of National Statistics (ONS) recently released the results of a snapshot survey which show that, during a two week period between late January and early February 2014, employers in Great Britain are using around 1.4 million contracts that do not guarantee a minimum number of hours worked.

The survey focused on 'non-guaranteed hours contracts' (NGHCs), which include, but are not exclusively, zero-hour contracts.

It found that NGHCs were more prevalent in the tourism and catering sector but rarely used in the manufacturing and agricultural industries. In total around 13% of employers surveyed reported some use of NGHCs. The ONS will conduct further research and produce a report later in 2014.

This survey follows the recent controversy surrounding zero hour contracts, which are currently under Government review.

28 April 2014 - Labour plans to give workers the right to fixed hours after 12 months

Ed Miliband has declared that a Labour Government would tackle the "worst abuses" of zero hour contracts (ZHCs) by providing workers with more employment rights.  

Mr Miliband's proposals include that workers should:

  • have the right to request a contract with a minimum amount of work after six months with an employer - the employer could only refuse if they could prove that their business could not operate any other way;
  • be entitled to receive a contract with fixed hours if they work regularly for the same employer for a year;
  • be able to work for other employers (thus targeting the controversial "exclusivity clauses"); and
  • have a right to compensation if shifts are cancelled at short notice.

It is difficult to see how a right to fixed hours after a year is realistic, given that some employers may genuinely need flexible hours. Labour would also need to consider how to prevent employers from simply terminating employment prior to a year, which could make employees worse off than at present. Similarly, how many fixed hours is enough?  Presumably a guaranteed 30 minute shift each week doesn't help much!

The Government is currently reviewing ZHCs. An interim report on ZHCs has recently been published by Parliament's Scottish Affairs Committee (see our story from 23 April 2014).

28 April 2014 - Offensive remarks about Hillsborough allegedly sent from Whitehall computers

Insulting remarks which were added to the Wikipedia page devoted to the Hillsborough football disaster were allegedly posted from Government computers. Insulting comments directed at Liverpool fans are said to have been posted from 2009 and most recently in 2012. The Cabinet Office has reportedly launched an investigation.

Employers should have policies in place governing the use of the employer's internet and IT systems. This story is an example of how comments such as this could easily bring the employer itself into disrepute, even if the comments didn't originally name the employer and even if they were made outside working hours but using the employer's IT systems. However, employers should also be aware of the employees' right to privacy and the data protection implications.

25 April 2014 - Discrimination on the grounds of being Cornish?

Cornish people have been included in the Council of Europe Framework Convention for National Minorities which aims to protect the rights of national minorities against acts of discrimination.

Government departments and public bodies must now take into account the views of Cornish people as a recognised minority when making decisions, but this does not itself mean they are protected by employment legislation. The Cornish have long insisted their distinct language and culture deserves to be formally recognised.

Race is one of the "protected characteristics" under the Equality Act 2010. Race includes "ethnic origins". Previous case law has established a group wishing to satisfy the definition of 'ethnic origin' must have a long shared history and a cultural tradition of its own. There are other relevant but not essential factors too, such as common literature peculiar to the group and a common religion distinct from communities around them. It would be interesting to see whether a Tribunal accepted that discrimination on the grounds of being Cornish constituted race discrimination.  If so, what about Londoners or other groups within the UK?

25 April 2014 - Male workers win equal pay claim against Welsh University

The University of Wales, Trinity St David has conceded a claim brought by 18 of its male workers. The Claimants were employed as caretakers and tradesmen and claimed that they were paid less than their female colleagues who were on the same pay grade, such as secretaries and office workers. They claimed £736,000 from the University, which initially defended the claim on the grounds that the difference in pay was due to the changes in the men's contracts and not on account of gender.

However, the University has now dropped the case and agreed to pay compensation to the claimants and five of their male colleagues on the same pay grade after new evidence came to light. The University acknowledged that the claim had "due merit" and as such "an appropriate remedy should be agreed and actioned".

It is reported that this is the largest group of men to have brought a claim for sex discrimination in Britain.

23 April 2014 - No performance improvement plan for David Moyes

David Moyes' 6 year fixed-term management contract with Manchester United has been terminated after only 10 months in charge.

Moyes' will reportedly receive a pay-off of £4.5million, but this is far less than the £30 million that he is said to have stood to earn over the 6 year contract.  The club are reported to have relied on a break clause in his contract, allowing them to dismiss and pay "only" one year's salary if the team failed to qualify for the Champions League next season.

The immediacy with which football managers are dismissed is at odds with good employment practice, but not dissimilar to the approach often taken with senior executives.  In theory, clubs are liable for unfair dismissal if proper processes are not followed (assuming that the individual has the requisite 2 years' service, which Moyes didn't).  However in practice, the sums at stake under the contract are so large that the cap of £76,574 for an unfair dismissal award means this is generally settled with the contractual dispute.

23 April 2014 - Interim report on zero-hours contracts

An interim report on zero-hours contracts (ZHCs) has been published by Parliament's Scottish Affairs Committee in response to the Government's consultation on ZHCs. The report suggests that the Government's consultation is too narrowly focused on resolving the problems associated with the exclusivity and transparency of ZHCs. The Committee states that such attention will do little to help those workers who are exploited by unscrupulous employers.

The report states that 20% of workers on ZHCs are paid less than their non-ZHC equivalents and 5% are unlawfully paid less than the national minimum wage.

The Committee suggested that ZHCs should only be used when they can be objectively justified by the employer and suggests that in most cases ZHCs should not be used at all.

The Government is reviewing various responses to its Consultation, which has now closed.

22 April 2014 - Supermarket shifts have detrimental effect on mental health

A report from Cambridge University has suggested that the flexible working arrangements demanded by one of the UK's largest supermarket chains are damaging the mental health of its employees. The report refers to arrangements such as zero-hours contracts (ZHCs), contracts with a very low number of guaranteed hours and contracts where the times worked by individual employees changes to meet customer fluctuations.

The report states that the instability and uncertainty of working hours imposed by these contracts are a cause of stress and anxiety to the workers and their families, leading to mental illness.

The findings have been submitted to the Government's current review of ZHCs. The researchers have proposed that the Government widen the scope of its review to consider all flexible working and argue that employees should have a right to request more predictable hours supported by legislation.

17 April 2014 - Vince Cable considers requiring disclosure of the number of employees earning less than the Living Wage

Vince Cable MP, the Business Secretary, has revealed he will consider an amendment to the Corporate Governance Code which would require publicly listed companies to disclose the number of employees who earn less than the Living Wage. It is hoped that this requirement would encourage high profit multinational companies to re-evaluate salaries paid to their lowest earning employees.

The suggestion was proposed by Heidi Alexander MP during a House of Commons debate. Whilst Dr Cable says he considers an amendment to the Code to be an "interesting suggestion for nudging companies in the right direction," he remains firmly opposed to "coercive measures" on the basis that it may put jobs at risk.

17 April 2014 - Asda employees bring equal pay test case which could cost supermarkets millions

Over 400 Asda workers are bringing an equal pay test case which could set a precedent for supermarkets to pay millions of pounds in higher wages and back pay to store staff. The Asda staff, many of whom are women, argue that their roles are of equal value to higher paid positions in male dominated distribution centres.

If successful, the store staff could be entitled to six years' back pay accounting for the difference in earnings with the warehouse staff. The case could have important implications for other supermarkets who own their distribution centres, as this provides a potential equal pay comparison.

This case comes as a warning to employers who are at risk if they cannot defend any disparity in the salaries paid to employees who perform sufficiently similar roles to be covered by the Equal Pay Act 1970.

16 April 2014 - War Horse musicians fail in attempt to get injunction

The musicians working on the West End's production of "War Horse" failed to convince the High Court that it should grant an injunction forcing the theatre to continue to employ them. 

The Court thought that the musicians had a strong claim that their termination was in breach of contract. The contract allowed for termination at the close of the production, but not because the theatre wanted to change the production so that no live band was necessary.  However, the Court did thought it unlikely that remedies for that claim would involve the theatre being ordered to reinstate live music to the production, so it decided that injunction was not appropriate.

16 April 2014 - Police Officer sacked for criticising force via Twitter

A long-serving police officer who allegedly posted over 800 tweets criticising the Avon & Somerset Police Force has reportedly been sacked for gross misconduct. 

A disciplinary panel is said to have found on the balance of probabilities that PC Tony Ryan was the source of tweets under the name @BritishCop. These labelled professional standards officers as "lower than slime" and "scum" and claimed that senior officers treated "hard working staff like garbage". Investigators were reportedly unable to directly attribute the tweets to PC Ryan but claim that they matched his duties and knowledge of issues in the  with the content of the tweets.

PC Ryan denies posting the tweets and claims that the real culprit has used him as a 'scapegoat'. He intends to appeal.

In order to avoid an unfair dismissal finding, employers need to demonstrate that they believe an employee to be guilty of misconduct, had reasonable grounds for that belief and had carried out a reasonable investigation. It would be interesting to see the extent of the investigation here, given that PC Ryan has denied being responsible.

15 April 2014 - Secret recordings of meetings may be accepted as evidence

The Employment Appeal Tribunal (EAT) has found that secret recordings of private discussions, which took place during breaks in disciplinary and grievance hearings, were admissible as evidence (Punjab National Bank (International) v Gosain).

The employer argued that allowing such evidence would discourage employers from having full and frank deliberations. However, the EAT found that the comments secretly recorded in this case were not part of the employer's deliberations.

A previous EAT case found that private deliberations of the panel were not admissible, although the EAT was wary of setting any clear precedent. Bringing the two cases together, it seems likely that covert evidence of the proper deliberations themselves are not admissible, but if covert recordings pick up other comments, for example which are completely inappropriate or discriminatory, the evidence may be allowed. Ultimately, the Tribunal has discretion in this area and it may be difficult to challenge a decision on appeal.

Modern technology makes recording of meetings very easy. Employers should be wary of the possibility of secret recordings even where recording is expressly prohibited by disciplinary and grievance procedures. It might be worth asking employees to confirm at the outset of all grievance and disciplinary meetings that they are not recording the meeting.

11 April - Should workers be axed when their looks fade?

The Broadcaster Michael Buerk has reportedly claimed that it was 'fair enough' for TV bosses to remove older presenters and news readers. Buerk claims that if presenters are given jobs based on their appearance they should not be surprised that they are removed when their looks fade.

Miriam O'Reilly, ex-presenter of Countryfile, responded saying that this is an example of the sexist attitude held by many men in the industry.  Ms O'Reilly previously succeeded in an age discrimination claim against the BBC after being dropped from Countryfile. 

Both Buerk and O'Reilly seem to agree that recently older faces are becoming more apparent on our television screens such as Mary Berry and Bruce Forsyth. O'Reilly attributes this change to sustained pressure from women within the BBC and cites her successful tribunal claim as a turning point.

The debate seems to miss the point that employing people on the basis of their looks may in itself amount to discrimination to begin with. We commented on this in our story about Abercrombie & Fitch on 30 September 2013.

11 April - Gay teacher resigns following complaints from parents

A gay teacher claims that he was forced to resign following complaints about his sexuality from Christian and Muslim parents.

Andrew Moffat, a teacher at Birmingham's Chilwell Croft Academy, claims the parents objected to a gay teacher because they did not want their children believing that it was acceptable to be gay. Mr Moffat has reportedly previously written several articles and books advising how to teach children to be tolerant of homosexuality.

It is reported that Mr Moffat has now accepted another teaching position outside Birmingham and it is unclear whether he is bringing an Employment Tribunal claim.

Employers should beware that whilst clients and other stakeholders may suggest that they adopt discriminatory approaches, this does not avoid the employer having to comply with the Equality Act 2010 and being accountable for failing to do so.

10 April - RBS criticised for preparing zero hours contracts

RBS has been criticised for preparing zero hours contracts (ZHCs) for businesses in the UK through its RBS Mentor Service which offers employment law and HR advice. ZHCs are legal but have been controversial recently, particularly where they include "exclusivity clauses" which prevent the employee from working for other organisations. Arguably, this is unfair on workers who have no guarantee of work from their sole employer.

RBS stated that none of the contracts it drafted included exclusivity clauses. The criticism of RBS providing its clients with contracts which are lawful is an indication of how important the issue has become, although it is in part explained by the fact that RBS is 81% owned by the taxpayer.

Meanwhile, a recent survey has found that 10% of ZHCs include exclusivity clauses and 46% of employers provide more than a week's notice before altering an employees working hours. It also found that 97% of firms explain the function of these contracts to job applicants - meaning 3% don't!

7 April 2014 - Changes to Employment Tribunal rates and limits

From 6 April 2014, there are a number of employment law changes.  We have explained some of these below, with links to previous articles.

Unfair dismissal maximum awards

  • the maximum figure for a "week's pay" which is used, for example, to calculate statutory redundancy pay, has increased to £464;
  • the maximum compensatory award has increased to £76,574 (but remains capped at a year's salary).

Statutory sick pay and maternity, paternity and adoption pay

  • Statutory Sick Pay has increased to £87.55 per week.
  • Statutory maternity pay, paternity pay and adoption pay have increased to £138.18 a week (or 90% of normal weekly earnings if lower).

Statutory discrimination questionnaires have been abolished

Financial penalties for employers have been introduced in the Employment Tribunal

Early Conciliation has commenced on a voluntary basis (and will be mandatory for most employees from 6 May 2014).

7 April 2014 - Black officer sues police for race and sex discrimination

A black, female firearms officer who works in the Diplomatic Protection Group is suing the Metropolitan Police, claiming her career has been held back because of racial and sexual discrimination.

Carol Howard claims to have been unfairly treated because of her race and sex. Ms Howard claims that a senior officer bullied her, involving an incident described as an 'intimidating attack' whilst the officer was armed. She also claims the officer denied her equal opportunities.

Ms Howard was the poster girl for the Met during the London Olympics and reportedly told the Employment Tribunal that she felt upset over the way she was treated while publicly being used as an example of the Met's diversity.

7 April 2014 - Germany bans managers from contacting staff after work hours

In a move to protect workers' mental health and reduce stress, the German employment ministry has reportedly banned managers from calling or emailing staff out of working hours.

The new guidelines are part of a broader agreement on remote workers. They explain that staff should not be penalised for turning off their phones and failing to pick up messages after working hours have finished.

Managers may only contact staff in exceptional circumstances where the work cannot be postponed until the next working day, and must be mindful of the principle of 'minimum impact' on workers' private lives.

Businesses in the UK will be pleased to know that there is no suggestion that the UK will follow suit. However, stress is an increasing problem of which employer should be aware. For example, as reported in our story from 23 January 2014 several investment banks have placed limits on staff working for part of the weekend.

7 April 2014 - Statistics spark concern over health of UK workforce

A report published by AXA PPP Healthcare has revealed that the average worker took just 4.4 days off due to sickness in 2013, showing a reduction of more than 25% since 1993. Although a seemingly positive result, the survey showed that the impact of the recession has left employees feeling too worried about job security to take time off. It also found that the days off due to stress, anxiety and depression have increased by 27% since 2010.

The pressures of the recession particularly hit the London workforce, with 60% of people reporting that they work overtime and more than 40% stating they feel guilty when leaving work on time. Greatest concern has been raised over revelations that 24% of those surveyed said that they go to work unwell due to demanding workloads and 12% saying that their manager has prevented them from going home when sick.

27 March 2014 - Number of women on Boards of top 100 companies up to 20.7%

According to a report from the Cranfield School of Management, the percentage of women holding a position on the Boards of UK's 100 top companies has increased to 20.7%. In some of the FTSE 100 companies the figure is as high as 44%.

However, some companies are still yet to appoint a single female director and only 2 of the 100 companies has a female chairperson.

The last six months however, has seen a significant rise in the number of women being appointed to boards, with women comprising 35.5% of new appointments.

21 March 2014 - National minimum wage increase announced is largest since 2008

From 1 October 2014, the "adult" minimum wage will increase by 3% (19p) to £6.50 per hour.

This is the largest minimum wage increase since 2008 and will affect one million of Briton's adult workers. The Government agreed to accept the Low Pay Commission's recommendations of an above-inflation rise designed to "increase the real value of the minimum wage" as the economy continues to improve. 

Rates for 18-20 year olds, 16-17 year olds and apprentices will rise by 2% to reflect the fact that the labour market position of young people has yet to recover to match the "adult" market.

The Government also urged employers to reflect the increase across their business to allow all employees to "enjoy the benefits of recovery."

21 March 2014 - Dramatic Fall in Number of Employment Tribunal Claims

The Ministry of Justice has recently published the quarterly employment tribunal statistics for the period October to December 2013 which is the first full quarter since the introduction of employment tribunal fees on 29 July 2013. 

The figures show that there were 9,801 employment tribunal claims in the final quarter of 2013, which is 79% fewer than during the same period the previous year, and 75% fewer than the number of claims in the previous quarter.

The report also shows a decline in the number of single claims (ie those not part of a multiple claim) of 64% compared with the same period in 2012.

Although there has been a general decline in single claims over the last five years, the sudden significant fall seems likely to be a result of the introduction of fees for claimants.


The Government has produced the legislation (a Statutory Instrument) which is set to abolish the formal discrimination questionnaire process in Employment Tribunals. The change is planned for 6 April 2014.

The Government hopes that as a result of the change, a more informal and less onerous process will be followed. However, it is questionable how much will change in practice.

Acas has produced guidance on asking and responding to questions of discrimination in the workplace in light of the upcoming changes. This will serve as a reference point for those dealing with such issues.

For further information on the upcoming abolition of discrimination questionnaires and its potential impact see our article in the Knowledge Centre.


The Labour party have tabled an Early Day Motion (EDM) in Parliament calling for the annulment of the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 (the Regulations) which came into force on 31 January 2014. So far, the EDM has been signed by 17 Labour members, including Ed Miliband, Ed Balls and Chuka Umanna. 

The reasons for the EDM are unclear however it likely to be welcomed by those who feel that the Regulations have made it easier to cut pay and conditions for workers who have transferred from one employer to another. 

The Regulations remain in force for now, but this does mean that there is a risk for those who are currently relying on the provisions of the Regulations. However, very few EDMs are actually debated.  Given that Labour does not have a majority in the House of Commons, the EDM is unlikely to pass.

Find out more about what the new TUPE Regulations say in the article on our publications page.

6 March 2014 - Tribunal holds banker unfairly dismissed over links to boxer David Haye

A banker has won significant compensation for unfair dismissal after being dismissed having been wrongly accused of acting as personal assistant to boxer David Haye.

Kamran Naqvi, former relationship manager for Lloyd's, allegedly aroused suspicion when emails were found in which he described himself as Mr Haye's business manager. Investigators also uncovered substantial transfers from Mr Haye to Mr Naqvi's account. The bank found this to be gross misconduct, despite knowledge of a close relationship between the men, and dismissed Mr Naqvi.

The Employment Tribunal reportedly found the investigation into Mr Naqvi's conduct to be "inadequate" and that the bank had not conducted the disciplinary process in a "fair and even-handed way". Mr Haye is said to have told the Tribunal that Mr Naqvi had never been employed by him and the bank transfers were simply repayments of owed monies.

When dealing with misconduct issues employers should ask themselves whether, in all the circumstances, treating the misconduct as a sufficient reason to dismiss is reasonable.  Employers should ensure that a fair procedure is followed, which will involve properly investigating any misconduct, informing the employee of the issues in writing, and conducting a fair disciplinary hearing.


The Court of Appeal (CA) has ruled in the case of Jessemey v Rowstock that the Equality Act 2010 (the Act) does cover post-employment victimisation. Previously, there had been uncertainty surrounding the scope of the Act which expressly prohibits post-employment discrimination and harassment. However, other wording in the Act has been taken to suggest that post-employment victimisation wasn't covered.

The CA accepted that read on its own, without any context, the Act might be thought to not cover post-employment victimisation. This however was an obvious drafting error, and given the context of the Act, it was clearly not the intention of Parliament to exclude post-employment victimisation. Lord Justice Underhill said that this error in the Act could be corrected by the courts by reference to EU law (which prohibits post-employment victimisation) and the principles of interpretation of domestic law. The CA found it relevant that prior to the Act post-employment victimisation was unlawful and there had been no indication that Government intended to change this law. Further, the Explanatory Notes to the Act suggested that post-employment victimisation was to be covered, and there was no rational basis for treating post-employment victimisation differently from post-employment discrimination and harassment.

Employers should take note, as subjecting a former employee to a detriment by, for instance, giving a bad (or no) reference because they have done, or may do, a 'protected act', which includes bringing a claim under the Act, is now clearly prohibited. 


A former director of Derry's Culture Company has lost his claim for unfair dismissal after being suspended and then sacked for gross misconduct when he disclosed an internal letter to the media.  The letter detailed the proposed move of the Culture Company's marketing department along with its budget and staff (other than him) to Derry City Council. The director claimed that his disclosure constituted whistleblowing and was a "heroic act" in the public interest. 

However, the Employment Tribunal disagreed. It found that key elements of the legislation that gives whistleblowers protection from detriment were not present. In particular, the director had not raised his concerns with the Culture Company before disclosing the letter to the media. In the circumstances, therefore, it was reasonable for the Culture Company to have dismissed him for his misconduct. 

A lack of awareness about the level of protection given to whistleblowers seems to underlie the case. The absence of a whistleblowing policy was highlighted as a Culture Company deficiency by an HR consultant, however, even this did not protect the employee in this case. Employees should take care to familiarise themselves with their legal rights and obligations before releasing potentially damaging or confidential information to any third party. 


A former intern of the fashion house founded by the late designer, Alexander McQueen, has brought proceedings for unpaid wages for a four month internship in 2009-10.  The intern, who goes by the pseudonym Rachel Watson, had drawn artwork for embroidery, repaired embellished clothing and dyed large quantities of fabric.  She claims this constituted "real work under a contract", entitling her to be paid at least minimum wage.  These proceedings come after the company was forced to publically apologise last year for advertising for a "talented knitwear student" to work five days a week for up to 11 months, without a wage. 

The legal status of volunteers and interns is not clear-cut and there are a vast range of relationships; from the purely voluntary to those that are clearly contractual.  Organisations looking to offer unpaid "internships" or "work experience" should be mindful of the fact that where an intern or volunteer is contracted (either orally or in writing) to perform work or provide services they may well fall within the legal definition of a "worker", entitling them to be paid minimum wage.

7 February 2014 - Judicial Review on Employment Tribunal fees unsuccessful

The High Court today rejected the application by UNISON for judicial review of the decision to implement Employment Tribunal (ET) fees was lawful.  In summary, UNISON's arguments were:

1. fees make it too hard for individuals to exercise their rights under EU law;

2. fees are not payable in other UK Tribunals of similar level to ETs, so it is unfair to impose fees in ETs;

3. no proper assessment was made of the potential adverse impact on those with protected characteristics; and

4. fees are indirectly discriminatory, ie will disproportionately impact those with protected characteristics in a way that UNISON says cannot be justified.

UNISON's second and third arguments were rejected.  The Court found that ET fees were sufficiently comparable to those of other courts and that the Government had properly assessed the potential adverse impact of fees.

However, the situation is less clear in relation to the first and fourth arguments.  The Court did not accept that UNISON's hypothetical examples of individuals being unable to exercise their rights.  The Court said that the best way to really assess this was to consider it in relation to an actual person who is alleged to have been discouraged from bringing their claims.  In relation to indirect discrimination, the Court said it is too early to assess the position as evidence is required about what effect ET fees actually have.

The Court was critical of the way the proceedings had been brought and suggested that UNISON had brought them too quickly.  It effectively said it did not have the information needed to answer some key issues in the case, and on that basis rejected the application.  However, the Court invited UNISON and others to monitor the effect of fees and said that the Government would be expected to follow through with its promise to keep fees under review.  It is therefore possible that once more evidence is available, a new claim might have a different outcome.

UNISON have announced that they intend to appeal the decision to the Court of Appeal.

A further judicial review application is outstanding in Scotland.  If more useful evidence is available to the Court in relation to that claim, it is possible that the result could be different.


London Central Employment Tribunal has ruled that police officers forced to retire after having served for 30 years were victims of indirect age discrimination.

The relevant rule "Regulation A19" already existed but the decision to make use of it was said to be an austerity measure after the Government announced in 2010 that it would be cutting police funds. More than 200 officers across five forces were subsequently forced to retire.

The difficulty for the relevant police forces is that such a rule is likely to result in those who are older being placed at a disadvantage compared to those who are younger, as older officers are more likely to have reached the 30 year threshold. It is therefore likely to be indirectly discriminatory and unlawful unless it can be shown to be a proportionate means of achieving a legitimate aim. The Tribunal ruled that it was not proportionate. As a result, the forces could end up paying millions of pounds in compensation for unfair dismissal claims.

We have not yet seen the Tribunal's judgment. However, one problem that the force may have had is explaining why they could not have achieved redundancies through an alternative method. For example, one based on the ability to perform the role.

4 February 2014 - Changes to TUPE Regulations

Various changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) came into force on 31 January 2014 (although some changes are subject to a transitional period).

Importantly, a "service provision change" continues to count as a TUPE transfer, despite the Government initially proposing to abolish this.

Some of the key changes include:

  • collective consultation for redundancy purposes can take place prior to a transfer provided that the transferor and transferee agree to this and proper notifications are given
  • changes in the location of the workforce following a transfer can be within the scope of economic, technical or organisational reasons entailing changes in the workforce, thereby preventing genuine place of work redundancies from being automatically unfair
  • the transferee must provide the transferor with employee liability information 28 days before the date of the transfer (rather than 14 days which was previously the case)
  • the wording on changing terms and conditions and automatic unfair dismissals has been amended so that it only applies where the sole or principal reason is the transfer rather than a reason connected with the transfer.

Please contact us if you would like more information about these and the other changes.

30 January 2014 - How do you combine being a parent and an employee?

The difficulties of being a working parent have again been highlighted by the media this week.  Jon Snow is reported to have said that having a child is disadvantageous to a woman's career in TV.  In contrast, Holly Willoughby has spoken out saying that combining motherhood and working in TV is entirely possible if you work out a balance.  These views reflect are reflected across various sectors of the economy.  Recent research has also shown the high cost of childcare in the UK to be a key concern to parents and a primary factor in their working patterns.

In theory, the options for working parents should be improving, with the proposed shared parental leave and a general shift towards flexible working.  For example, Boris Johnson, Mayor of London, announced plans yesterday to introduce flexible travel cards that could be used, for example, three days per week.  However it is clear that there are still many issues involved in getting back to work after having children.

Increasingly, employers are thinking differently about how their staffing is organised.  This is reflects both the benefits employers are seeing for their organisations and the changing legislation.  We have written about the forthcoming changes to flexible working on our publications page.

24 January 2014 - Women less likely to be given a pay rise?

The leader of the TUC, Frances O'Grady, is the latest to broach the pay inequality between men and women in the workplace. Ms O'Grady has spoken out against what she perceives as a portrayal of women as 'wimps' because they are less likely to ask for a pay rise. She states that the TUC has evidence that bosses find it easier to say 'no' to women in this situation than men, making it difficult for women to request a pay rise.

Ms O'Grady also warns that the forthcoming shared parental leave will have little impact if pay inequality continues because couples will be reluctant to give up the greater pay.

These comments serve as a reminder of the complexities involved in pay inequality and the range of issues that need to be addressed if the gender pay gap is to be reduced. With the strengthening economy, pay issues look set to be high on the agenda for both men and women this year.

23 January 2014 - Take the weekend off! Just not Sunday

Credit Suisse is the latest investment bank to introduce a specific rest period for junior bankers during part of the weekend. The global head of investment banking said in a memo that certain staff should not be working between 6pm Friday and 10am Sunday unless they are working on a 'live deal'. This is marginally longer than the break recommended in November by Goldman Sachs, which made clear that there would be exceptions and that juniors should still be checking their Blackberries on a regular basis. JPMorgan has also suggested a 'protected weekend' once a month for juniors.

This represents a modest shift in attitudes, perhaps brought about over time by departures due to stress and exhaustion and negative publicity, for example surrounding the death of an epileptic intern working punishing hours in Merrill Lynch's London office. It seems likely that other banks will follow and the trend towards a better work-life balance will continue.

22 January 2014 - Woolworths redundancy collective consultation case referred to European Court

The Woolworths redundancy collective consultation case was heard by the Court of Appeal today. You can read about the earlier Employment Appeals Tribunal (EAT) decision in our knowledge centre.

It is reported that the Court of Appeal has referred the case to the European Court of Justice - presumably for an explanation of what the relevant European Directive actually means. Once the European Court answers the questions posed by the Court of Appeal, the case will go back to the Court of Appeal to decide the case itself in light of the information provided by the European Court.

In short, it's going to be quite a while before we find out whether the EAT decision is correct. However that decision continues to apply in the meantime, although it is possible that Tribunals would agree to stay cases pending the outcome of the appeal. Employers with multiple sites should give serious thought to putting in place internal policies to ensure compliance with the EAT decision. Failure to do so could be costly.

We will publish a further update once details of today's hearing emerge.

15 January 2014 - Steps towards eliminating recruitment bias

A law firm has recently introduced what is known as the 'CV-blind' approach for those candidates making it through to interview, with interviewers being provided only with the name of the applicant. Efforts such as this, attempt to eliminate bias regarding an applicant's educational background. Following the introduction of the 'CV-blind' approach, the firm reportedly found a significant increase in the number of education institutions providing successful candidates.

Earlier research by the Sutton Trust highlighted the dominance in key professions of individuals coming from Oxbridge and independent schools. However, even a person's name can give rise to bias - see the story from 18 July 2013.

Businesses should take steps to avoid unlawful discrimination in their recruitment process, not only in relation to educational background. Some companies have tried to do this by omitting details such as names and ages from CVs - promoting interview selection based on qualifications and experience rather than characteristics such as ethnicity, gender or age. Employers should carefully consider whether their hiring tactics sufficiently tackle any such potential subconscious bias.

14 January 2014 - More employment law changes ahead

2013 saw a number of significant changes to employment law.  2014 is set to see many more changes.  It is worth being aware of what is expected as it may affect decisions you are making now - for example in relation to policies.

We have summarised the employment law changes expected in 2014 - do you know which ones might affect you?

You may also be interested in our briefing on 10 key employment changes from 2013 that will resonate into the new year.

8 January 2014 - Government consultation on zero-hours contracts

Following negative media attention and Parliamentary concern about zero-hours contracts (ZHCs), the Government has published a consultation which considers a range of options relating to ZHCs.

The consultation invites responses to proposals including banning "exclusivity clauses" in ZHCs. Exclusivity clauses prevent employees from working for other employers, which is arguably unfair on workers who have no guarantee of work from their sole employer. An alternative proposal is the introduction of a Code of Practice governing the use of exclusivity clauses in ZHCs.

Research also showed a lack of transparency about ZHCs. The Government has therefore sought responses on introducing model clauses for ZHCs and improving the accessibility of information about them.

There are no current proposals to ban ZHCs altogether. The consultation is open until 13 March 2014.


In November 2013 we reported on Opportunity Now's launch of a new survey said to be the biggest survey ever conducted into the experiences of women between the ages of 28 - 40 in the UK workforce (you can read our earlier story from 20 November 2013).

So far, the survey has received over 25,000 responses and an analysis of the first 15,000 reveal some interesting preliminary findings. Around 80% of woman surveyed feel that having children will affect their career progression and that senior woman in business are portrayed as "superwomen" by the media. Almost 20% of the women surveyed say that their careers have stalled because managers have failed to promote them or offer training opportunities, and just over 10% have experienced sexual harassment. These early findings demonstrate serious issues within the UK workplace which remain to be tackled.

Final results are expected to be published in April 2014, but for now the survey remains live and can be accessed here.

17 December 2013 - Fall in tribunal claims after introduction of fees

The number of employment tribunal claims in the period from July to September 2013 has fallen by 17% compared with the same quarter in the previous year.  It is thought that this is due to the recent introduction of fees on submission of a claim.

There were 42% fewer unfair dismissal claims as compared with last year.  It is possible that the particularly large decrease in this area is due to the higher fee of £250 payable for issuing an unfair dismissal claim, compared with £160 for simpler wages claims.  However, sex discrimination claims, which would attract the same fee, were up by 35%.

It is also important to note that these figures are not necessarily reliable, as an unusually high number of claims were received in June; 25,000 as against the monthly average of 17,000 for January to May.

17 December 2013 - No Equality of Terms for Agency Workers on Indefinite Assignments

The Employment Appeals Tribunal has decided that the Agency Workers Regulations 2010 (AWR) do not apply to agency workers who are placed with a hirer for an 'indefinite' period.

The Judge in this case considered both the AWR and the underlying European Directive, and concluded that:

  • the word "temporary" in the definition of those to whom the AWR apply could not be ignored
  • "temporary" means 'not permanent'
  • 'permanent' means 'indefinite in duration'.

This means that many agency workers who are working alongside directly hired workers, but on less favourable terms, are not entitled to the 'Day 1' rights or '12 week rights' (equality of terms and conditions) provided for in the AWR.  It is a significant decision.  It confirms that the scope of the AWR is narrower, and the number of individuals who benefit far fewer, than many previously considered to be the case.

This may not be the last word on this point.  For the time being, however, those seeking to avoid the application of the AWR will be tempted to take care to avoid describing assignments as being 'temporary'. 

5 December 2013 - Zero-hours contracts: unfairly demonised?

The Chartered Institute of Personnel and Development (CIPD) has published research suggesting that people on zero-hours contracts (ZHCs) are just as satisfied with their job as the average UK employee and actually happier with their work-life balance.

The CIPD has spoken out against ZHCs being "unfairly demonised" and against any extreme restrictions on them, pointing to the flexibility they provide being appreciated by both employers and workers.

The research does however point to issues of poor practice such as a lack of awareness about rights of those working under ZHCs and 40% of ZHC workers saying that they receive no notice at all if work has been cancelled. 

The research serves as a reminder both of the potential benefits of ZHCs and the importance of maintaining good management practice.  The Government has launched a public consultation on ZHCs in order to address key concerns - see our story of 10 October 2013.

29 November 2013 - Public Concern at Work Commission Report pushes for end to "culture of silence"

The Whistleblowing Commission has just published a report making recommendations for improvements to employers' whistleblowing practices and procedures.  This review comes as a response to the scandals involving Mid-Staffordshire NHS Trust, Winterbourne View and the blacklisting of construction workers.

The 25 recommendations include proposals for a statutory Whistleblowing Code of Practice to be adopted in all UK workplaces and to be supported and enforced by courts, tribunals and regulators.   It also calls for the strengthening of whistleblowing legislation.

Cathy James, CEO of Public Concern at Work, commented that the Code of Practice would set standards against which organisations could be measured and "provide a clear roadmap for better whistleblowing arrangements".  In adopting the Code, the Government would be "taking the first step in tackling an issue which has been left unchecked for far too long". 

28 November 2013 - New Bill proposes paid leave for bereaved workers

A poll commissioned by the Change Bereavement Leave campaign recently found that seven out of ten adults would back a national guaranteed minimum entitlement to paid bereavement leave.

TUC General Secretary Frances O'Grady commented that many workers were unaware that they may not be able to take much compassionate leave after a family death and that, if granted, such leave would probably be unpaid.  Tom Harris, Labour MP, Tom Harris, introduced the Bill in the House of Commons as he was concerned by the number of parents going back to work too early after the death of a child because of worries about job security.  According to Harris, a conservative estimate put the likely cost of the measure to employers across the UK at £4 million a year.

Harris has proposed a two-week minimum entitlement, with scope for employers to increase this at their discretion.  At present, the Government hasn't given formal support to the proposal.  Without this support, the Bill is unlikely to succeed.


Opportunity Now, a benchmarking survey which reports on how organisations are performing on gender equality, has launched a new survey to study the experiences of women in the age bracket of 28 - 40 in the UK workforce.  The survey hopes to tackle concerns surrounding why women fail to be promoted at the same rate as men at this critical phase for career development. 

The survey comes amid the recent news coverage surrounding the gender pay gap.   The Trade Union Congress recently revealed that the gender pay gap currently stands at 15%, with female professionals in some industries earning £16,000 less than their male counterparts.  One way of looking at the gender pay gap is to consider that women are currently working for free until the end of the year!

Opportunity Now's survey is currently live and can be accessed here.

14 November 2013 - HMRC investigates 200 employers advertising unpaid internships

HMRC is investigating 200 employers who have recently advertised internships, in order to ensure that these companies are complying with national minimum wage legislation.   

HMRC have written to the companies informing them of the investigation. HMRC will be looking at the nature of unpaid interns' work and whether they are "workers" for the purposes of the legislation.

Companies who breach the legislation risk having to compensate underpaid employees in arrears of wages and to pay penalties, a punishment given to 736 employers in the last financial year. HMRC has indicated that it will be able to "name and shame" the companies exposed by this investigation, which could cause serious damage to well-respected household names.

14 November 2013 - John McCririck loses age discrimination claim

John McCririck has lost his age discrimination claim, which we wrote about on 2 October 2013.  The former racing pundit started proceedings against Channel 4 and production company IMG Media when he was replaced with a team of younger presenters.

The Tribunal accepted that Channel 4 had wanted to bring racing to a wider audience and feared that McCririck's "pantomime persona" was not in line with this strategy, feeling that it was unappealing to many current and potential viewers.  Unhelpfully, the Tribunal's judgement is not clear about whether McCririck lost because the Tribunal accepted that these factors alone led to his dismissal (ie there was no discrimination), or whether age was a factor but the discrimination was justified.  It will be interesting to see whether McCririck appeals as a result of this lack of clarity.

McCririck claims that the decision will give "anonymous suits and skirts" "complete freedom to replace older employees whatever their unimpaired ability and merit", and criticises what he considers to be TV executives' "worship of the cult of youth".

6 November 2013 - Blowing the whistle to the tune of millions of pounds?

The Home Office is considering incentivising UK corporate whistleblowing.  In a recent policy paper on its serious and organised crime strategy, the Home Office states that the Government is looking at the possibility of financial incentives for whistleblowers in fraud, bribery and corruption cases.

Part of the research will concentrate on the US' 'qui tam' provisions which enable individuals to sue on the Government's behalf.  US corporate whistleblowers may receive a portion of the penalties levied against the relevant company if it is found guilty of fraud against the Government, potentially meaning payments of millions of dollars.

This comes as part of wider UK whistleblowing reforms as the Government strives to acknowledge the risks taken by whistleblowers without damaging their reliability as witnesses.  The Government has also been urging the NHS in particular to review its whistleblowing policies - see our story from 1 November 2013.


Mr Cox was dismissed from his employment with Essex County Fire and Rescue Service (Fire Service).  He brought claims in the Employment Tribunal against the Fire Service, including one for disability discrimination.

During his employment, Mr Cox advised the Fire Service that he suffered from a bipolar disorder.  However, he obstructed his employer's attempts to obtain medical advice and withdrew consent for his GP and specialist to provide information regarding his condition to the Fire Service's occupational health service.  No definitive diagnosis of his condition was therefore available.

Mr Cox's disability discrimination claim was dismissed by the Employment Tribunal.  It held that the Fire Service did not know Mr Cox was disabled, and could not reasonably have been expected to know that he was disabled.  Mr Cox appealed, but the EAT has now upheld the Employment Tribunal's decision.

This case is welcome news for employers.  Employers should act diligently to explore an employee's medical condition and any reasonable adjustments that may be required, but will not necessarily be found to have imputed knowledge of an employee's disability where that employee refuses to co-operate in the process.  It is a cautionary tale for employees who should consider very carefully any reluctance to allow access to its medical practitioners.

4 November 2013 - Draft regulations to amend TUPE published

Draft Regulations setting out changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 have now been published.  As they are still in draft form, there may be changes to the current wording.  They are due to be laid before Parliament in December 2013, with a view to coming into force in January 2014.

The draft Regulations are available from the Government website.

We will publish a new story shortly once we have reviewed the proposed wording.

1 November 2013 - Protection of whistleblowers in the NHS

A former employee at Orchid View card home has revealed that she has been unable to find work since exposing abuse at the home.  This comes as the Government is considering improvement of whistleblower protection legislation.

Whistleblower protection is particularly important in the NHS, because workers can reveal information vital to the health and safety of patients.  Discouraging them from doing so is potentially life-threatening.  However, the former care home employee is not the first member of NHS staff to complain of being made to feel like a "troublemaker" because of the problems they highlighted within health organisations.

The Government is therefore urging NHS organisations to review their existing whistleblowing policies, foster a culture where staff feel encouraged to voice their concerns, and to take steps to address the problems raised rather than ignoring them.  It is also conducting a wider review of whistleblowing legislation, for which the call for evidence closes today.

1 November 2013 - Documentary reveals apparent employer discrimination against Muslims

An undercover investigation by BBC Inside Out has revealed that some employers are seemingly discriminating against Muslims in their recruitment decisions.

The programme asked two undercover reporters, one Muslim and one non-Muslim, to apply for 40 jobs.  Both reporters apparently had similar qualifications and experience.  The Muslim reporter only got three interviews, whilst the non-Muslim got thirteen interviews and one job offer. 

The documentary also secretly filmed the recruitment process in a supermarket advertising three different vacancies, for which both undercover reporters applied.  The Muslim reporter enquired about one vacancy and was told that the position had been filled.  The non-Muslim reporter enquired five minutes later about the same job and was given an application form and told that there were several vacancies still available.  The supermarket is investigating the findings.

The importance of avoiding discrimination is now high on the agenda for many employers.  However, employers should also guard against unconscious bias.

31 October 2013 - Female police officer wins victimisation claim

A female sergeant in the Northamptonshire Police has won her victimisation claim after making allegations of sexism within the force.

Sergeant Alexandra-Lloyd submitted a complaint to her employer after overhearing "grossly offensive sexual remarks" within the workplace, and after one of her colleagues showed her his pornographic playing card which he kept inside his official notebook.

The Employment Tribunal heard that whilst the offending colleagues were only issued with minor disciplinary sanctions, Northamptonshire Police's Professional Standards Department made a series of trivial charges against Ms Alexandra-Lloyd, including that she had called a colleague a "cheese", and that she had used a derogatory term at some point up to two years previously.  This resulted in a nine month investigation and a disciplinary hearing.
The Judge found that Northamptonshire Police had victimised Ms Alexandra-Lloyd.  He criticised the "historical and trivial" nature of the charges against her, along with the "disparate treatment" of her colleagues. 

24 October 2013 - Married women remove wedding rings to enhance career prospects

A survey carried out by comparejewellery.com showed that 35% of the married or engaged women surveyed regularly remove their wedding or engagement ring while at work, believing that this will increase their job or promotion prospects.

Some "ring-removers" explained that they feel their rings may suggest they are looking to "settle down" and start a family.  They felt this might discourage employers from hiring, promoting or otherwise investing in them.

Despite many employers having excellent maternity leave and flexible working arrangements, lots of women clearly feel that it is risky to show their employer that they are married, fearing that they will miss out on opportunities if they are seen to be prioritising their home lives.  This perception may have no basis in fact, but shows that gender stereotypes are still seen as a problem in the modern workplace.

24 October 2013 - Survey shows ageism perceived to be "rife" in accountancy industry

A recent survey by CareersinAudit.com revealed that nearly 50% of respondents aged 40 or above felt that they had failed to secure a job offer or internal promotion because of their age.

It has been suggested that accountancy firms prefer to recruit younger accountants because they feel their working styles are more adaptable and feel they are more technology-literate.  Such an approach would be age discrimination.  Unlike other forms of discrimination, it is possible to justify both direct and indirect age discrimination.  This is complex but broadly, an employer would have to be pursuing an aim which the law recognises as "legitimate" and doing so in a way which is proportionate.

Of course, employees' perception that they did not obtain a promotion because of their age does not mean that in fact they have been discriminated against.  There may be other reasons that the employee is not aware of.  However, age is one "protected characteristic" which some employers have perhaps not yet paid sufficient attention to.

23 October 2013 - Low mark for employee appraisals

A report by the Institute of Leadership and Management found that 25% of employees felt that appraisals were performed poorly by their manager.  39% of employees questioned said that their workplace did not even have an employee appraisal system.

Whilst some employees, particularly those receiving poor appraisals, are always likely to blame the system, employers might wish to consider whether there are wider lessens to be learnt from the findings.  A well-managed appraisal process can be a key factor in the fairness of a dismissal in cases concerning the employee's performance.  Not having an appraisal process, or having one which is carried out inconsistently, adds to the risk that an employer will face successful unfair dismissal or other claims.

Legal risk aside, the report also suggests that appraisals are not an effective employee motivator, with only 40% of men and 26% of women saying appraisals impact their financial reward.  Similarly, only 24% of men and 15% of women felt that appraisals led to promotion.

22 October 2013 - Incentivising better behaviour in the financial sector

The FCA has published its response to the Parliamentary Commission on banking standards.  The report includes the FCA's comments on changes that may be made to the new Statutory Remuneration Code, which is to be published next year with the aim of incentivising better behaviour.

The FCA accepted the Commission's recommendations including the benefit of flexibility in a firm's choice of instruments and the development of legal and contractual arrangements to allow deferred remuneration to be recognised in a wider range of circumstances.

We have written in more detail about the FCA's attempts to incentivise better behaviour on our publications page

18 October 2013 - Pressure and stress takes its toll on bankers

A report published this week looking at the impact of the banking crisis on banking staff has highlighted the huge toll on staff at all levels caused by a climate of fear and concerns over job cuts.  Over 80% of the unions surveyed cited deteriorating health as a major problem for its members.  The report also identified the "target" culture and excessive pressure to sell as key issues for concern.

The report comes after a series of high-profile cases concerning burnt-out workers in the finance sector, including that of Hector Sants of Barclays who on Monday became the latest senior UK banker to need time-off due to stress-related exhaustion. 

The publication of the report by Swiss-based UNI Finance reinforces the issues raised in our story published on 16 October 2013, Are employers doing enough to tackle stress at work?, which you can read below. You may also wish to watch our free recorded webinar on managing stress and disability.

17 October 2013 - Tesco indirectly discriminated by restricting access to prayer room

An Employment Tribunal has found that Tesco indirectly discriminated against two Muslim employees at their Crick distribution depot after restrictions were placed on their use of a prayer room.  Both men are said to have received an undisclosed sum for 'injury to feelings'.

After lobbying in 2008, the Muslim employees were provided with a prayer room.  However, staff were reportedly required to inform managers and ask for a key when they wished to use it, sign in and only allowed to pray individually rather than as a group. 

The case serves as a useful reminder to employers of the need to be sensitive to the cultural and religious needs of their employees.  It also warns against putting in place particular policies or procedures that disadvantage employees who hold a particular religion or belief. 

16 October 2013 - Are employers doing enough to tackle stress at work?

The annual absence management report by the CIPD and Simply Heath has found that absence levels are increasing.  Levels are back to 7.6 days per employee, as observed in 2011 and 2010.  40% of organisations surveyed reported that stress-related absence had increased over the past year.  Around 40% also noted an increase in reported mental health problems, such as anxiety and depression. 

Unfortunately, 33% of organisations that had identified stress as one of their top five causes of absence admitted to not taking any steps to address it.  Our State of HR Survey 2013 had similar findings.  In particular, the growth in additional hours and its link with stress, employment relations problems and staff turnover.

Employers should be considering methods to identify and reduce stress at work, including risk assessments/stress audits, flexible working options, stress management training and, perhaps, in more serious cases, counselling. 

Failing to adequately deal with stress and mental health issues could lead to employers having to increasingly deal with long-term absences and grievances.  In some cases, disability discrimination issues could also arise.

14 October 2013 - School backs down from requiring female teachers to wear headscarves

On 26 September we discussed the news that a free school in Derby was being investigated in relation to discrimination complaints including that it forced female teachers to wear headscarves.  In response to a letter from the Education Minister, Lord Nash, the school has now said that it will support female staff who do not want to wear head coverings. 

Lord Nash's letter set out five "urgent steps" that the school needs to take by 15 October, including providing written confirmation that the school has ceased any practices or procedures that have as their purpose or effect that women or girls are treated less favourably than men or boys.  The school has also been told to write to all female members of staff telling them that they do not have to wear a head scarf if it is in conflict with their religion or beliefs.  Lord Nash's letter threatened removal of state funding if the school failed to comply with the required changes.

11 October 2013 - Watchdog report on public sector pay-outs and gagging clauses

The National Audit Office (NAO) has produced a report highlighting the need for better guidance on the use of confidentiality clauses and special severance payments across the public sector. 

The NAO found cases where the Treasury had approved severance payments when the employee was alleged to have failed or behaved inappropriately.  This could be seen as going against the Treasury's own guidance which is, broadly, not to pay for failure.  On the other hand, it is difficult to make a judgment without more information.  One would hope that the Treasury considered the payments justified because, despite the allegations raised, the individuals had a reasonable prospect of success at an Employment Tribunal.  Nonetheless, this still suggests that management of staff could be improved.

The NAO also focussed on confidentiality, non-disparagement and "gagging" clauses in the settlement agreements.  In summary, confidentiality (of information obtained during employment) and non-disparagement provisions were included in around 40% of cases.  It is perhaps surprising, compared to the practice in the private sector, that these clauses are not used more frequently!  In about 2% of cases, the NAO found clauses which it said could be considered "gagging" clauses. 

10 October 2013 - Government to launch consultation on zero-hour contracts

The Government has announced plans to consult on zero-hour contracts (ZHCs).  It is focusing on abuses in the system and ensuring that employees are treated and paid fairly.  ZHCs have become increasingly popular with employers as a means of adapting to changing demands of their businesses, however they leave workers with no guaranteed hours and potentially subject to last minute changes in working patterns.

The forthcoming consultation follows a Government review of ZHCs which highlighted four key areas of concern:

  • exclusivity clauses
  • lack of transparency
  • uncertainty of earnings
  • the balance of power in the employment relationship (ie workers feel they have no choice but to accept hours offered). 

It is anticipated that the consultation will focus on these areas.  Further details on the consultation and its launch date will be confirmed later this year.

In the meantime, listen to our recorded webinar from 3 July, for more information on zero hour contracts and atypical working arrangements. Webinar: The risks and pitfalls in offering internships, work experience placements and other atypical working arrangements.

9 October 2013 - Employers risk financial penalties if they lose Tribunal claims from April 2014

Jo Swinson, Minister for Employment Relations, has confirmed that financial penalties (effectively, fines) against employers will be introduced in April 2014.  The Government had previously suggested that these plans might have been put on hold.

When the legislation comes into force, Employment Tribunals will have discretion to order financial penalties against employers who lose claims if the Tribunal considers the claim has one or more "aggravating factors" (which are not currently specified).

Larger employers can, however, take some comfort from the fact that the penalty is capped at £5,000 per claimant and there is a 50% discount for paying promptly.  However penalties may become another point of negotiation when seeking to settle claims.

8 October 2013 - More female directors at top UK companies but few are filling executive roles

New figures show more women are being appointed as directors at top UK companies but there are still concerns over the low number filling executive roles.  The biannual study by BoardWatch was originally prompted by Lord Davies' 2011 report into the appointment of women directors.  Lord Davies recommended a target of 25% of FTSE 100 board positions being held by women by 2015.  The latest figure is 19.0% (up from 12.5% in February 2011), which equates to companies being 66 female directors below the target.

Lord Davies however warned that this is no time to get complacent.  There are still 6 FTSE 100 companies (and 51 FTSE 250 companies) with all-male boards and the percentage of women executive directors stands at only 6.1%.  Vince Cable, amongst others, has commented that having women at executive level is key.

There have also been recent moves towards setting targets on an EU-wide level (see our story from 9 September 2013).

8 October 2013 - Minister advises women to ask their male colleagues what they earn

According to a survey commissioned by the Financial Adviser School, 80% of women and over 70% of men still believe that there is a "glass ceiling" preventing women from progressing in their careers.  It therefore seems fitting that the Women and Equalities Minister, Jo Swinson, is encouraging women to ask their male colleagues what they earn in order to compel their employers to close gender pay gaps.  She believes that openness among colleagues is the best way to combat the divide.

Ms Swinson has stated that the alternative is using current equalities legislation to require large businesses to reveal their pay discrepancies.  This has angered some companies who feel that the Government is not keeping its promises of deregulation.  It has been estimated that it would cost large firms £12,800 for each audit they have to carry out. 

However, 40 years on from the first equal pay legislation, the average pay difference between the sexes is still thought to be around 15%.  It is therefore perhaps time for a new approach.

3 October 2013 - The Met is considering positive discrimination

Scotland Yard has reportedly spoken to the Government about allowing positive discrimination during police recruitment.  The Met is looking to make the force more ethnically diverse in order to better reflect and communicate with the local population, boosting both its image and effectiveness.  A major recruitment drive is due and it hopes that positive discrimination during this process could accelerate efforts to address the ethnicity concerns.

One suggestion made by the Met is to require a black or ethnic minority candidate to be recruited at the same time as every white candidate.  A strict policy such as this would probably breach the Equality Act 2010, which only allows positive discrimination in limited circumstances.  The Met hopes that the Government will introduce changes allowing measures similar to those which were used in Northern Ireland when police forces were trying to decrease the Protestant majority.

2 October 2013 - John McCririck's age discrimination is heard by the Employment Tribunal

John McCririck, the ex-Channel 4 racing pundit, has brought an age discrimination claim against Channel 4 and IMG Media after Channel 4 replaced him with a new presenting team headed by Clare Balding.

The presenter, aged 73, had worked for Channel 4 for 29 years.  He claims that he was treated "abominably" and was informed of his dismissal in a "short phone call".  Channel 4 vigorously denies that age played any part in the decision not to include McCririck in the new presenting team.

The Tribunal heard that Channel 4 had concerns over Mr McCririck's "loss of gravitas" after his appearance on various reality TV shows, and what it perceived to be sexist public statements about women being "moaners".  McCririck flatly denied that he had been sexist, claiming that he had repeatedly campaigned to have more women working for Channel 4. 

The case continues and channel 4 and IMG Media deny the claims.  We will post an update once the Tribunal reaches a decision.

30 September 2013 - Abercrombie & Fitch launch new hairstyle policy for employees

Abercrombie & Fitch have again caused controversy over their prescriptive appearance-based employment policies, this time in relation to hairstyle restrictions.  They have reportedly issued employees with new guidelines outlining 'acceptable' and 'unacceptable' hairstyles.  Diagrams are included to help employees gauge whether or not they are complying, with anything appearing 'unnatural' being strictly forbidden.
As well as outlining rules on hair, nails, jewellery and clothes Abercrombie's manual is also reported to ban head coverings.  Employees wishing to be an exception to this (for example for religious reasons or disability) are told to contact HR. 

Abercrombie were in the news earlier this year (see our story from 8 August 2013) for allegedly hiring on the basis of looks.  As with that policy, Abercrombie and other employers should be careful that they are not indirectly discriminating on the grounds of a protected characteristic such as race or religion.

30 September 2013 - Government granted permission to appeal the Woolworths decision

The Government have obtained permission to appeal the Employment Appeal Tribunal's (EAT) decision in the Woolworths collective redundancy case.  The EAT decided that where an employer proposes 20 or more redundancies, it is required to consult collectively (regardless of whether or not the redundancies are at one establishment).

Given the importance of the issues involved, it is not a surprise that permission to appeal has been granted.  We understand that the grounds of appeal are largely technical - that the EAT did not have the power to effectively delete words from UK legislation, even if it the EAT was correct in saying the legislation did not comply with the European law.

The issue will now be considered by the Court of Appeal on a date to be determined.  In the meantime, the EAT decision continues to apply and employers should adjust their redundancy processes accordingly.  We have written more about the EAT's decision on collective redundancy consultation on our publications page.

27 September 2013 - Lord Sugar loses battle for costs against former Apprentice winner

The winner of the 2010 Apprentice series, Stella English, reportedly wept with joy earlier this week when an Employment Tribunal ruled that she did not have to pay Lord Sugar's legal costs.  Lord Sugar had incurred these costs earlier in the year when defending her unsuccessful claim for constructive unfair dismissal.

The Tribunal ruled that Ms English's claim "should never have been brought", but that she did not act maliciously. Unlike civil courts, costs do not "follow the event" in the Employment Tribunal.  In other words, a losing party is not automatically responsible for paying a wining party's legal costs. 

Although unsuccessful in this case, it is worth considering whether an application for costs could be made as Tribunal statistics show that, depending on the case, the award can be significant (for example, the highest award 2010/2011 was £83,000).

27 September 2013 - Women are happier with their work-life balance than men

The Office for National Statistics has released a report that suggests that over half of all employees in the UK agree that they achieve the right balance between their work and home lives.  This rose to over 60% for women.  The statistics therefore generally suggest that women, more so than men, generally believe that the balance between the demands of their home life and their jobs is reasonably good.  This may be partially due to woman being more likely to work flexibly than men.  According to a 2012 survey, 49% of woman worked part-time whereas only 13% of men did so.  Taking all forms of flexible working, 77% of men and 70% of women worked flexibly (men were found to be more likely to work regularly at home).

Interestingly, people working in the private sector believed that they achieved a slightly better work/life balance than those working for the state, the NHS or councils.  It will be interesting to see how these findings impact on the current political situation and, for example, the Government and Labour plans to impress women voters with increased childcare subsidies.

26 September 2013 - Is requiring female teachers to wear a headscarf discriminatory?

A free school in Derby is reportedly being investigated in relation to various complaints about discrimination.  The school is ostensibly a multi-faith school, based upon Muslim principles, but is reported to be adopting strict religious views in its operations. 

A Christian teacher reportedly left the school in December last year after she was told that she must wear a headscarf and was reprimanded for immodesty when she removed it between lessons.  There are also concerns that the school's potentially discriminatory practices are disadvantageous to the female pupils, who are made to sit at the back of the classroom.  The situation raises issues about the extent to which a free school's right to set its own rules can infringe upon the rights of others who may choose to involve themselves with the school.  The issues are similar to those faced by other employers who wish to implement dress codes which have the potential to be indirectly discriminatory to particular religious or racial groups.

25 September 2013 - Right to strike called into question by the firefighters' pension dispute

The 4 hour walk out by firefighters today in relation to a dispute about their pension entitlements has caused various politicians to call for stricter controls over the right to strike, particularly where the strike has limited support among union members.  For example, in relation to today's strike, although 80% of those who responded to the ballot voted in favour of the strike, this still represented less than half of the membership of the Fire Brigades Union. 

The call for reform appears to be driven by the increasing frustration with the disruption and economic consequences of strikes particularly in the transport sector.  Ironically, any formal steps to curb a right to strike is likely to lead to further industrial action and strikes.

25 September 2013 - Planned changes to TUPE regulations provoke mixed reaction

Since the Government announced the planned changes to the TUPE Regulations, some quite contrasting responses have appeared in the press.  Ministers praise the reforms for making TUPE transfers "easier, fairer, and more effective".  However, representatives of employee interest groups such as Frances O'Grady, the TUC General Secretary, have criticised the reduced protection that will be given to employees. 

The Government have abandoned earlier suggestions that the "service provision change" part of TUPE would be removed.  We await draft legislation to see exactly how the changes will work, but some of the planned changes look likely to make some aspects of TUPE significantly easier for employers to deal with.

We have written more about the changes to be made to TUPE on our publications page.

25 September 2013 - Labour plan to scrap employee shareholder status

Ed Miliband announced this week that if Labour wins the next election, it will scrap employee shareholder status, which was introduced on 1 September 2013. 

Employee shareholder status provides an opportunity for employees to give up certain employment rights in return for shares and some tax benefits.  We have written more about employee shareholder status on our publications page.

Employee shareholder status has had a poor reception from business and it seems unlikely that many business will make use of the new status anyway.  There is potential for it to be used in some situations for tax reasons, particularly private equity transactions.  This had led to Labour criticising employee shareholder status as a "tax loophole for a privileged few".   We may find that the Government itself amends the law before the election to close the tax "loophole", given the likely uses are not what the Government intended.

23 September 2013 - 'Create an apprenticeship for every foreign worker hired': Labour's new proposal

The Labour party announced that "we are going to say to any firm that wants to bring in a foreign worker that they also have to train up someone who is a local worker". 

We understand that:

  • the requirement to train a local would be triggered by the hire of a 'Tier 2' migrant worker (a migrant worker taking a skilled role that cannot be filled by a settled worker)
  • it would only apply to large employers with 50 workers or more.

There are some legal issues to be overcome in implementing a scheme like this.  For example:

  • reserving apprenticeships for 'local' workers is potentially unlawful discrimination on grounds of race and/or nationality
  • the 'local' requirement for an apprenticeship potentially interferes with the principle of free movement of workers that is enshrined in EU law - unless 'local worker' in fact is intended to mean 'EU worker'! 

Whether or not this proposal is ultimately implemented, employers need to take care to comply with the (sometimes seemingly conflicting) requirements of employment and immigration laws.  In one case, an employer's policy of refusing to accept applications for legal training from applicants requiring permission to work in the UK was held to be unlawful nationality discrimination. 

10 September 2013 - Sony pays intern minimum wage after complaint

An intern who worked at Sony has been paid £4,600 after complaining that he wasn't being paid minimum wage, even though he was originally expecting only to recover travel expenses.  The intern was working the same hours as Sony employees and, after having completed training, made computer games under the supervision of a manager.  The intern was not initially aware that he qualified as a worker and as such was entitled to minimum wage, and only found this out after researching how to get his travel expenses money from Sony after payment was delayed.

Internships are a hot topic at the moment and employers should be aware of the rights that are accorded to interns.  We recently gave a webinar on the risks and pitfalls in offering internships, work experience placements and other atypical working arrangements.  You can watch the recorded version and download the slides by clicking the link and selecting the webinar dated 3 July 2013.

9 September 2013 - Should the EU set quotas for the number of women on boards?

The EU has adopted a new standard which will require banks, building societies and investment firms to decide on a target for the representation of women on their Boards from 2014.  Committees will be required to make Board appointments with the target in mind, which could amount to "positive action" under the Equality Act 2010 towards women if a man and a woman are equally qualified candidates for the role.  Subject to how the targets are used in practice, this could leave employers open to discrimination claims if unsuccessful candidates argue that they were better qualified than successful candidates, which would potentially make the positive action unlawful.

Helena Morrissey, CEO of Newton Investment Management, has said the rules are "unwelcome and unnecessary", especially in the UK which is already making good progress.  Ms Morrissey's comments seem to be supported by the findings of the second Davies report published in April 2013.  It revealed a 4.8% increase in the number of women on boards of FTSE 100 companies since the previous report in February 2011 and takes the total up to 17.3%.   Others who are against quotas suggest that a higher percentage of women on Boards may be more easily achieved if led by businesses rather than government.  They argue that organic growth is a healthier option, as changes to the Board should be made if and when vacancies arise and on candidates' merits, rather than in response to quotas.

6 September 2013 - Housekeeper told not to get pregnant successfully sues employer

A housekeeper has won a claim in the Employment Tribunal against her employer for unfair dismissal, sex discrimination and unpaid wages after she was dismissed three days after telling her employer that she was pregnant.  The employer had allegedly tried to discuss family planning with the employee on numerous occasions and had asked her to request the employer's permission before she had a child!  The Reading Employment Tribunal ordered the employer to pay almost £19,000 in compensation. 

Employers should be careful that they do not discriminate against women or put in place policies that discourage women from having children.  If an employee reveals that they are pregnant, this should not negatively affect how they are treated in the workplace, and any unfavourable treatment as a result may result in discrimination claims.

3 September 2013 - Swedish derogation contracts: in contravention of EU law?

The TUC has lodged a complaint with the European Commission that agency workers in the UK are still being paid less than permanent staff, despite the introduction of the Agency Workers Regulations (AWRs) which entitle agency workers who have worked for a company for more than 12 weeks to the same pay as permanent staff. 

The TUC have alleged that companies are exploiting an exemption in the AWRs called the "Swedish derogation" to avoid paying agency workers the same rate as permanent staff.  It says that more than one in six agency workers are employed under such contracts.  The Swedish derogation provides an exemption from the right to equal pay where the worker has a permanent contract of employment with the agency (subject to minimum requirements) provided the agency also pays the worker a minimum amount between assignments. 

The rationale behind not paying agency workers hired under "Swedish derogation contracts" the same as permanent staff is that such workers are genuinely employed by an agency and are likely to be offered new job assignments when their current assignment ends.  Even if they are not offered a new assignment, the agency is obliged to pay them in between assignments, creating some job security.  The TUC is suggesting that the manner in which this exemption is used in the UK doesn't meet the rationale and, in effect, there is no job security.

29 August 2013 - Jamie Oliver claims that migrant workers are tougher than British workers

Celebrity chef, Jamie Oliver, has revealed to Good Housekeeping magazine his belief that migrant workers are tougher than young British workers who are "wet behind the ears".  He said that his restaurants would have closed had there been no migrants to staff them as there wouldn't be any British workers to replace them. 

The chef claims that when he was in his 20s he regularly worked between 80 to 100 hours per week.  Following the Working Time Regulations 1998, employers in the UK are under a duty to ensure that average working time per week including overtime does not exceed 48 hours. However, as employees can opt out of the limit on the working week, it is unclear whether the Regulations are in any way responsible for the alleged change in attitude of young British workers.

Employers should take care to ensure they are not hiring or firing staff based on presumptions arising from their nationality or age, as this could lead to race and age discrimination claims.

23 August 2013 - EAT rules that dismissal for gross misconduct will not always be reasonable

The Employment Appeal Tribunal has recently held that a dismissal for gross misconduct will not automatically fall within the range of reasonable responses. Although this will normally be the case, a blanket approach was not appropriate as it failed to take into account any mitigating factors. 

Here, the employee was absent on sick leave from her public sector job, but continued to work in her private sector job in the same field. The disciplinary panel found the allegation of gross misconduct was substantiated and decided to dismiss the employee without considering mitigating factors such as length of exemplary service and the consequences of a dismissal from the NHS.

This case highlights the importance of conducting disciplinary processes with care and ensuring that all relevant circumstances are taken into account when deciding on an appropriate sanction. Failure to do so could leave employers at risk of unfair dismissal or discrimination claims.

21 August 2013 - Study shows that men receive double the amount of bonuses than women

A study conducted by the Chartered Management Institute has shown that, of the 43,000 managers surveyed, men would earn an average of £141,000 more than women over a lifetime as a result of receiving double the amount of bonuses.  Bonuses are exacerbating the pay gap between men and women, with men's salaries already almost 25% higher and the pay gap only increases the higher up the career ladder you climb. 

Although the results might reflect the fact that women tend to enter occupations where there is less of a bonus culture, this does not excuse the figures.  Employers need to be doing more to assess the gender pay gap (in respect of salary and bonus) within their organisations and take action to address any inequality that exists. 

Employers who fail to do so run the risk of equal pay claims if they are not paying men and women equal pay for equal work.

20 August 2013 - Paxman's beard sparks Twitter trend

Jeremy Paxman divided opinion last week when he returned to Newsnight from holiday sporting a beard.  Within minutes of his appearance, his beard was trending on Twitter and by the following morning it had gained its own Twitter account.  The Beard Liberation Front were delighted at Paxman's decision to sport his beard on Newsnight, especially as they apparently believe the BBC has an informal beard ban on news anchors. 

Employers should consider their dress code policy carefully to ensure that it reflects business needs.  Any outright ban, for example on jewellery, beards or certain items of clothing, may constitute indirect discrimination against some employees because of their race or religion.  If so, employers will need to show that the policy is a proportionate means of achieving a legitimate aim. 

14 August 2013 - Information Commissioner has published guidance about Subject Access Requests

The Information Commissioner has published a Code of Practice to provide guidance on how to recognise and respond to subject access requests (SARs) pursuant to the Data Protection Act 1998 (DPA).  It is important that employers know how to respond to SARs.

There is no standard format for SARs, and the only DPA requirement is that requests are made in writing.  This means that requests could reach employers by a variety of means, including social media.  It can therefore be hard for employers to recognise when they have actually received a SAR to ensure compliance within the time limits. 

Employers should consider making an in-house request form available to employees to facilitate SARs, although employees are still entitled to make requests in other ways.  Training may be useful to help staff recognise when a SAR has been received.  Employers should consider providing such training to a range of staff including not only those in data protection roles but also employees who handle post and monitor social media so that requests are recognised.

13 August 2013 - Ryanair pilots allegedly afraid to blow the whistle on safety concerns

Channel 4's Dispatches programme showed a report on the airline Ryanair last night, alleging that Ryanair's pilots were afraid to raise safety fears.  The programme referred to a survey of pilots which it said found that 66% of pilots did not feel comfortable raising safety fears and almost 90% did not think there was a transparent safety culture.

Ryanair has disputed the findings and has suggested that the survey is linked to pilot unions who, it says, have a "20 year failed campaign to obtain union recognition in Ryanair".  The airline is reportedly taking legal proceedings against Channel 4 in response to this broadcast. 

The dispute highlights the importance of employers having effective whistleblowing procedures in place, taking concerns seriously and ensuring that employees feel that their concerns are listened to.  Employees who suffer detriment as a result of blowing the whistle have protection from employment legislation, provided they have acted in accordance with such legislation.

13 August 2013 - Shadow immigration minister in row with Tesco and Next over foreign workers

A draft speech by Chris Bryant, the shadow immigration minister, was leaked over the weekend revealing allegations against Tesco and Next over recruitment decisions allegedly "undercutting" British workers in favour of cheaper eastern European workers. 

Tesco was targeted for allegedly allowing staff to transfer to its new distribution centre in Dagenham only if they took a pay cut, resulting in a higher number of foreign workers at the site.  Tesco says the centre has recruited 350 local people.  Next was targeted for allegedly employing workers directly from Poland to cover busy periods as a cost-cutting measure and to avoid the Agency Worker Regulations (AWR).  Next has commented that it was unable to recruit local staff and that the decision was not linked to pay or the AWR.  

Tesco and Next have confirmed that they comply with the national minimum wage legislation and refute any wrong-doing.  Mr Bryant reportedly amended the draft text of his speech following the retailers' comments.

In addition to being mindful of the national minimum wage, employers should be conscious of the risks of advertising UK job vacancies solely outside of the UK or solely in a foreign language.  Although there is no suggestion that Tesco or Next have done this, such a practice could potentially amount to indirect discrimination because of race if workers of a particular nationality (eg British) are disadvantaged.

12 August 2013 - Have employers gone far enough to support working mums? Poll says no

A recent survey has shown that 54% of working mums feel that their employer could have done more to support them when returning to work.  The report has revealed that 25% of the working mothers surveyed felt that they have been discriminated against either whilst pregnant, on maternity leave or once having returned to work.  Nearly half of the mothers felt that their career progression had been hindered despite 35% saying they worked harder since having a child.

Although many businesses are becoming more accommodating, employers should continue to be mindful that even if no formal complaints are made, working mothers may still feel targeted.  Employers should avoid treating staff less favourably as a result of them having children and should be careful to avoid giving the impression that they would do so.  In many cases, flexible working can have benefits for the business as well as the employee.

9 August 2013 - Co-op gives 'lads mags' deadline to cover up

The Co-Operative Group recently gave "lads' mags" 6 weeks to cover up their front covers by sealing the magazines in opaque bags.  It said the measure is designed to protect children in the store from the images of scantily-clad women on the covers of popular magazines such as Zoo, Nuts and Loaded.  This week, Nuts has said it will not agree to sell its magazines in plastic bags which hide the front cover.  As a result, Co-Op has confirmed that it will stop selling Nuts from 9 September.

Co-Op's policy is backed by the Women and Equalities Minister Jo Swinson and the Lose the Lads' Mags campaign which argues that displaying the magazines or requiring staff to handle them could constitute harassment under the Equality Act 2010. 

Harassment occurs when someone engages in unwanted conducted in relation to a "protected characteristic" (for example, sex) which has the purpose or effect of violating someone else's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.  Requiring staff to handle or see the pictures on the front covers could constitute harassment, particularly if a member of staff objects and nothing is done about the issue.

8 August 2013 - Abercrombie & law suit?

Abercrombie & Fitch is being investigated by a French human rights body over concerns about the US retailer's recruitment practices.  Abercrombie is thought to be hiring staff for its shop floors based solely on appearance, which could amount to indirect discrimination under EU and UK law, for example on the grounds of age, sex, race or disability.  The store is famous for its male topless "greeters" who stand outside the entrance to the brand's largest stores.

Abercrombie has released a written statement saying that it is committed to diversity and inclusion across its workforce.  Indirect discrimination can be justified if it is a "proportionate means of achieving a legitimate aim".  Broadly, if the allegations are true this would mean Abercrombie proving that hiring only people that they deem attractive provides real benefits which couldn't be achieved in a less discriminatory way.  This is not the first attack on the company's looks-focused policies, and growing public interest and awareness could lead to more challenges.

2 August 2013 - Update on judicial review application of Tribunal fees

You may be aware that there are two judicial review applications on-going in relation to Employment Tribunal fees:

UNISON was granted permission on Monday to continue with its application at a full hearing.  This will be heard in October.

The Judge considering the second application, made by a law firm in Scotland, said there was a strong prima facie case for proceeding to a full hearing.  This is also expected to be heard in October.

In both cases, attempts to block the introduction of fees until the full application is heard were unsuccessful.  However, the Government has promised to refund all Tribunal fees paid if the fees are eventually found to be unlawful.

In the meantime, fees are in place for claims brought on or after 29 July.  Anecdotal reports suggest that, as expected, the Tribunals received an exceptionally high level of claims in the final weeks before the introduction of fees.  We would expect, though, that this is balanced by an exceptionally low level of claims in the next couple of weeks.

2 August 2013 - Government challenge to Woolworths' redundancy decision

The Government has applied for permission to appeal the recent judgment by the Employment Appeal Tribunal (EAT) in the Usdaw v Woolworths case. 

The EAT decided that the words "at one establishment" should be deleted from the law relating to collective redundancy consultation.  This means that a business making a total of 20 or more redundancies within 90 days is required to consult collectively, even if the redundancies are spread across the country with only a few at each location. 

The importance of the issues at stake means permission is likely to be granted to appeal.  If so, the Court of Appeal would consider the case later this year or next but the decision stands in the meantime.

We have written more about this important decision on collective redundancy consultation on our publications page.

1 August 2013 - Reminder about key employment law changes

Some important employment law changes came into force on Monday, as follows:

  • pre-termination negotiations have been introduced - do you know how to use pre-termination negotiations successfully?
  • a secondary cap on unfair dismissal awards has been introduced
  • compromise agreements have been renamed settlement agreements (but they are the same document, just a name change)
  • Employment Tribunal fees have been introduced for claimants wishing to start a claim and a further fee for claimants in advance of the hearing - have you considered how this impacts your settlement tactics?

31 July 2013 - Sex and race discrimination: a harmless pint with the boys?

Isabel Sitz, a Spanish city banker, has claimed unfair dismissal and sex and race discrimination after purportedly falling victim to the bank's alleged discriminatory "British culture".  She alleged that her male colleagues made demeaning sexual references and racist remarks, which culminated in her dismissal.  Miss Sitz also said that she was told that a male colleague should take over her Irish accounts because he could bond with them better as "it is mostly about beer and rugby".  Her employer has denied these allegations and the Tribunal has not yet determined the outcome.

Employers should be aware that what may appear to be a "harmless" business tactic may actually be discrimination against employees who understandably feel side-lined and disadvantaged.  It is unclear whether Miss Sitz is also claiming harassment, but employers should remember that harassment can take place even where the person doing the actions in question didn't intend to be offensive.  For example, an employee displaying "lads' mag"  pictures in the office may be harassment of a woman who finds this degrading. 

29 July 2013 - A bum deal

A professional rugby player who was sacked by Huddersfield Giants after Tweeting a photo that included an image of a team mate's bottom has succeeded in his unfair dismissal claim.  He won damages of £167,000, reflecting the loss of his actual and projected income.

Mr Mason's girlfriend had posted the photo to his personal Twitter account in jest.  Although it was deleted from the account after two days, the club said that it had received complaints from supporters and sponsors and dismissed Mr Mason for gross misconduct.

The Tribunal Judge found clear evidence that the club had tried to dismiss Mr Mason previously.  He concluded that the account was "clearly a personal account which Mr Mason used outside the workplace" and did not think the tweet could be seen to be inextricably linked to the club.

This is a reminder to employers to tread carefully when dealing with posts by employees on social media accounts.  Amongst other things, you should consider whether there is a sufficient connection between the post and the employment.

18 July 2013 - What's in a name? The subtle advantage

A survey by officebroker.com has revealed that one in eight workers between the ages of 20 and 35 are concerned that their name is an obstacle to their career prospects.  Of the 600 workers surveyed, one in 20 said that they had been denied promotion in favour of someone with a 'more traditional' name.

The results echo findings that those with less traditional names are more likely to be overlooked in the workplace.  A likely consequence of this is that candidates from ethnic minority backgrounds may be affected.

Employers should be careful not to subconsciously judge candidates or employees based on name or other irrelevant attributes.  Apart from the potential for negative publicity and discrimination claims, employers may be overlooking the most talented people if decision makers don't guard against unconscious bias.

15 July 2013 - Right to be accompanied: choice of companion doesn't have to be reasonable

A worker has the right to make a reasonable request to be accompanied at a disciplinary or grievance hearing.  The EAT has held that the "reasonableness" requirement applies to the request itself, rather than to the worker's choice of companion.  The ACAS Code of Practice on Disciplinary and Grievance Procedures is therefore wrong, as it suggests that the choice of companion is taken into account when determining whether a request to be accompanied is reasonable.  Employers should be aware that as long as a worker's request to be accompanied in itself is reasonable, the worker is free to choose whoever they wish to accompany them.  This does however beg the question of when a request to be accompanied would not be reasonable.

However, the EAT also said that a Tribunal should assess the actual loss or detriment suffered by the worker as a result of a failure by the employer to allow the worker to be accompanied (subject to the statutory maximum of 2 week's pay capped at £450 per week).  If the worker has suffered no loss or detriment, the EAT said that only a nominal sum of around £2 should be awarded!

12 July 2013 - Government's response to consultation on framework for employment agencies and businesses

The Government has today published its response to the consultation on reforming the regulatory framework for employment agencies and employment businesses.  The Government is seeking to reduce regulation in the recruitment sector by replacing current legislation with a regulatory framework, but will retain protection for workers most at risk of exploitation such as those paid the National Minimum Wage.  This will be achieved by safeguards such as ensuring that employment agencies and employment businesses are prevented from charging fees to those seeking work, clarifying who is responsible for paying temporary workers for the work they have done and ensuring that payment is not withheld.

This response is part of a number of announcements made today on changes to employment law, including the launch of a Call for Evidence on whistleblowing and the level of support given to people who blow the whistle.

12 July 2013 - New unfair dismissal cap intended to be introduced on 29 July 2013

The Government has announced that the new (secondary) unfair dismissal cap will come into force from 29 July 2013, subject to the legislation being approved by Parliament in time.  The intention is that compensation for unfair dismissals that take place on or after 29 July 2013 will be subject to the lower of the two caps, either:

• the overall cap of £74,200; or
• the new cap of 52 weeks' salary

We have written in more detail about the new unfair dismissal cap.

29 July 2013 is a big day for employment law as it is the same date that pre-termination negotiationsEmployment Tribunal fees and new Employment Tribunal rules come into force.

9 July 2013 - Part-timer problems: can't move up and can't move out

A report by the Timewise Foundation has found that 75% of the 1,000 part-time workers surveyed feel trapped in their jobs.  They think that they have little prospect of promotion without taking on more hours but are unable to find an alternative role with the same flexibility.  Over 70% had not been promoted since switching to flexible working and 66% believed that promotion would only be possible if they increased their hours.

This research suggests that more needs to be done by employers to provide equal opportunities.  Part-time workers make up 25% of the UK's workforce and ignoring this issue will undermine the benefits of flexible working.  Aside from the risks of discrimination claims, employers may find they are losing valuable staff if they are unable to find solutions to problems faced by part-time workers. 

8 July 2013 - Employment law changes on 29 July 2013

The Government has announced that pre-termination negotiations (PTNs) are coming into force on 29 July 2013, which is the same date that compromise agreements will be renamed settlement agreements. 

A PTN is a discussion with a view to the employment being terminated on agreed terms.  PTNs will be inadmissible in most unfair dismissal cases provided there is no "improper behaviour".  PTNs are intended to fill the gap left by the "without prejudice" rule, which only covers conversations where there is an existing dispute. 

ACAS has produced a Code of Practice on Settlement Agreements which gives some guidance about what constitutes improper behaviour.  We are writing a guide to PTNs.  Please contact us if you would like a copy.

8 July 2013 - Setback for Government's changes to TUPE

The Employment Minister, Jo Swinson, has announced that a response to the Government's consultation on TUPE and draft Regulations to amend TUPE won't be released until September 2013, despite originally being expected last week.  There is no guarantee that the response will be published by this new deadline and it would appear that the proposed implementation date of October is now likely to be delayed.

The proposed reforms to TUPE include repealing the terms relating to "service provision change", removing the obligation on the transferor to provide employee liability information to the transferee and changing the wording of the provisions restricting changes to terms and conditions.

3 July 2013 - Gross misconduct accusations - hammering home the point

A former employee who was dismissed for gross misconduct has caused £175,000 of criminal damage to his ex-employer's premises.  The original dismissal was reportedly for moving an aircraft in a hanger, which he was not qualified to do.  Oddly, it is reported that the employee had settled his unfair dismissal claim before returning to the employer's premises with a hammer.

The man was jailed for 20 months by the Bristol Crown Court and issued with a restraining order for the attack which damaged computers, buildings and even the lavatories.

The tale serves as a reminder of the delicate and often emotive negotiations required when settling matters with former employees. 

2 July 2013 - Rise in stress and anxiety-related sick leave

A recent government study has found that anxiety and stress are the most common reasons for sickness absence from work, now accounting for over a third of absences. This is despite the 'fit note' replacing the 'sick note' in April 2010, with the aim of enabling employees to return to work more quickly by identifying tasks they were able to carry out rather than simply declaring them unfit to work.

Many employers have found that the scheme has made little difference in helping employees return to work and instead have experienced an increase in long-term absences, particularly for reasons such as stress and mental health.

Employers should ensure that they give appropriate support to their employees, particularly given the increase of stress and mental health issues.  Employers should also be aware that in many cases, an employee's sickness may constitute or arise from a disability.

1 July 2013 - Inappropriate IT use

A leading cyber-crime and digital products expert has estimated that one in every 1,000 employees accesses child abuse images at work.  Whilst internet providers give warnings to users when they attempt to access illegal material online, employers should also take steps to prevent such behaviour and other unwanted internet use within the workplace.

Employers should ensure that an appropriate IT policy is included in their staff handbook, to clearly explain what is and is not appropriate use of IT resources.  This includes the less obvious issues, such as whether and how social media should be used.  Employers should also consider appropriate monitoring of IT systems to ensure that it is used appropriately.  Additionally, employers should have a disciplinary procedure in place and be prepared to take disciplinary action where necessary.  In appropriate cases, this may include summary dismissal. 

27 June 2013 - Award for dismissal due to pregnancy related illness

A woman who was dismissed because she took two weeks of sickness leave after suffering two miscarriages has reportedly been awarded £12,500 by the Employment Tribunal.  Under the Equality Act 2010 sex is a protected characteristic and any unfavourable treatment because of sex is discriminatory.  Although it could be argued that because the Claimant was no longer pregnant when she took the two weeks off work, the discrimination was not because of pregnancy, unfavourable treatment due to pregnancy related illness is still discriminatory because of sex as only women might suffer from this.

Employers should be aware that discrimination because of sex also extends to pregnancy related illnesses such as sickness following miscarriages and should ensure that they provide the necessary support for their employees.

26 June 2013 - Gus Poyet sees red

Gus Poyet, the manager of Brighton and Hove Albion Football Club, was informed of his dismissal live on TV (whilst working as a football pundit) via a statement read to him by a BBC presenter.  Poyet was suspended in May and told that an interim manager would be appointed pending the outcome of the investigation.  He has said that he will appeal against the decision.  Both Poyet and the club have remained silent on the reasons behind the dismissal.  

Clearly, communicating dismissal via a third party is not good practice and is likely to make an amicable resolution more difficult.  It also raises issues about whether notice has validly been given, although presumably the Club have also written to Poyet directly.   

25 June 2013 - Changes to whistleblowing legislation have come into force today

Employers should ensure that their whistleblowing policies are updated to reflect key changes to legislation affecting "protected disclosures" made from today as follows:

  • the requirement that a disclosure must be made in "good faith" has been removed, but Tribunals have discretion to reduce compensation by up to 25% where the disclosure is not made in good faith
  • disclosures will only qualify as "protected disclosures" if the worker making the disclosure reasonably believes that it is made in the public interest
  • employers are potentially vicariously liable if a whistleblower suffers detriment from a colleague, unless the employer took all reasonable steps to prevent it. The previous legislation didn't provide for this.

Employers should also consider providing specific training to employees and taking steps to draw employees' attention to their updated whistleblowing policy.

We have written in further detail about these whistleblowing changes.

24 June 2013 - Can Lord Sugar get his money back?

Alan Sugar has reportedly applied to the Employment Tribunal for costs of £35,000 that he incurred defending a constructive dismissal claim by Stella English, winner of The Apprentice.  Stella was unsuccessful in her claim as she was unable to show a sufficient breach of her employment contract.

The Tribunal has discretion to order costs if the claimant acted vexatiously or was misconceived in the bringing or conducting of their claim.  However, costs are the exception rather than the rule and, even if an order is made, it may not be for the full £35,000 and currently would have to go to the County Court for assessment if above £20,000.

Although cost orders are still rare, the number granted has been increasing in recent years and in appropriate cases employers should perhaps consider applying for costs more frequently than at present.

24 June 2013 - Are you aware of the new DBS update service?

Since 17 June 2013 employers have been able to carry out free, instant online checks with the Disclosure and Barring Service (DBS), which replaced the Criminal Records Bureau, provided that the employee in question subscribes to the DBS service.  If an employee subscribes to the update service, he or she pays an annual fee of £13 and in return his or her DBS certificate will be kept up-to-date and will be transferable if he or she changes employers. 

Employers should note that it is still the case that employers need permission from the employee to carry out a DBS check and can only lawfully do so in relation to eligible roles. 

The old, paper based, system remains available for employees who do not subscribe to the DBS update service.  However, employers may benefit from the more efficient online scheme.  They might therefore consider incentivising workers to join the service by offering to pay their annual subscription fee, which could save the employer time and money in the long term. 

20 June 2013 - 'Fit notes' found to be in poor health

A recent survey has shown that only 26% of employers surveyed thought "fit notes" had resulted in employees returning to work sooner.  Fit notes replaced the previous "sick notes" in April 2010.  The intention was to shift the focus to what an employee could do rather than what he or she couldn't do, by giving doctors the option of suggesting certain adjustments which might enable the employee to return sooner.   

Many employers have found long-term absence, for example due to mental health issues, to be the biggest issue and that fit notes provide no real benefit here.  However, the recently announced changes relating to sickness absence, particularly the Health and Work Assessment and Advisory Service, may help in the future.

Employers sometimes fail to appreciate that an employee's ill health may constitute a disability, leaving the employer potentially open to discrimination related claims if they do not act appropriately.

19 June 2013 - Government to review use of zero hours contracts

Vince Cable, the Business Secretary, is undertaking a review of how zero hours contracts are working in practice.  This follows calls last month from within the Labour party for Labour to vow to ban zero hours contracts.  An outright ban seems unlikely, with the Government seemingly more inclined to consider safeguards for the use of zero hour contracts. 

Zero hour contracts are a difficult issue and the phrase is often used to mean different things.  For example, some employees on zero hour contracts are free to decline offers of work from their employer whilst others are obliged to work when required.  The legal effect of the two types of situation may be different.

We are running a free webinar at 12:30 on 3 July 2013 about zero hour contracts and other atypical working arrangements including the use of consultants (rather than employees) and unpaid internships/work experience. 

19 June 2013 - Less than 1% take up of additional paternity leave

The results of a study by the Trades Union Congress (TUC) have revealed that only 1 in 172 fathers take advantage of additional paternity leave (APL).  APL gives fathers who qualify the right to take additional paternity leave provided that the mother has returned to work. 

The TUC has argued that the reason for the low take up is that the statutory rate of pay for APL is too low (£136.78 per week) and is rarely topped up by employers.  However, employers' should exercise caution before deciding to pay enhanced maternity pay but not enhanced paternity pay.  This could potentially be challenged on the grounds that it is discriminatory on the grounds of gender.

Employers should also note that the current APL system is likely to change as the Government plans to implement " shared parental leave" in Spring 2015.

18 June 2013 - UNISON challenging the introduction of Employment Tribunal fees

The trade union UNISON is applying to the High Court for judicial review of the Government's decision to introduce Employment Tribunal fees, which are due to be implemented from 29 July 2013.

UNISON's arguments are generally based on EU law, including that:

  • fees will make it too hard for individuals to exercise their rights under EU law;
  • fees are not payable in other UK Tribunals of similar level to the Employment Tribunals, so it is unfair to impose fees in the Employment Tribunals;
  • no proper assessment has been made of the potential adverse impact on those with protected characteristics; and
  • fees are indirectly discriminatory, ie will disproportionately impact those with protected characteristics in a way that UNISON says cannot be justified.

Whilst on balance the likelihood is that UNISON will be unsuccessful, the application should not be written off completely as there does seem to be some merit in the points raised.

18 June 2013 - Age discrimination in the city

Tony Shiret, a highly experienced financial analyst in the retail sector, is reportedly claiming age discrimination against Credit Suisse following his redundancy at age 55 after 18 years with the bank.  He is allegedly arguing that the redundancy procedure was a sham and that the bank had already earmarked him due to his age.

Whilst Credit Suisse have denied the allegations and the Tribunal has not yet determined the outcome, ageism in the City is something that we are only too familiar with.  Employers often improperly take age into account, for example viewing an employee as too old to contribute to the business going forwards in a redundancy situation or refusing to accept the older employees in the context of a business transfer. 

It is important that employers guard against conscious and unconscious age discrimination and ensure that any potentially discriminatory decisions can be properly justified.

12 June 2013 - Are you beautiful?

The online dating website "beautifulpeople.com" has launched a spin-off employment "agency".  Employers looking to hire attractive staff can advertise their vacancies directly to the dating agency's members.  Some employers argue that attractive staff make better impressions with clients and win more business.

However, great care needs to be taken if looks are taken into account when hiring because of the risk of indirect discrimination claims on the basis of various "protected characteristics", which could potentially include age, sex, race and disability, amongst others.  For example, if an older candidate is less likely to be offered a role because of a perception that youth is beautiful (or vice versa!) this would amount to age discrimination and the employer may have an uphill task in persuading an Employment Tribunal that such discrimination is justified.

12 June 2013 - New dates for employment law changes

The Government has published an updated timetable of dates that changes to employment law are being made.  The following dates may be of particular interest:

• July 2013: secondary cap of 1 year's salary introduced for unfair dismissal awards
• Summer 2013: pre-termination settlement offers will be inadmissible in most unfair dismissal cases, subject to some conditions
• 1 October 2013: third party harassment provisions removed from the Equality Act
• 6 April 2014: formal discrimination questionnaires abolished
• April 2014: pre-claim conciliation via ACAS introduced
• October 2014: Employment Tribunals will be able to order employers to carry out an equal pay audit if they lose an equal pay case or sex discrimination case relating to pay

We have written about these and other employment law changes in our article Employment Law Changes: What do you need to know?

6 June 2013 - Important decision on collective consultation in redundancy situations

The Employment Appeal Tribunal has given what seems to be an important decision about redundancies of 20 or more employees.  The written decision is not yet available but reports of the case (which relates to the collapse of Woolworths) suggest that there is no longer a need for 20 or more redundancies to be at the same establishment in order for collective consultation obligations to be triggered.  Instead, 20 or more redundancies across the employer's business will suffice to trigger the obligations.

We have written in more detail about collective consultation in redundancy situations and the implications of this case.

4 June 2013 - Fears over job and status loss at 20-year high

Results from the 2012 Skills and Employment Survey have shown that more than half of the 3,000 employees interviewed were concerned about a loss in their job status.  The Survey is undertaken every six years by the UK Commission for Employment and Skills and the Economic and Social Research Council.

Those at workplaces that had downsized or been reorganised were the most likely to be concerned.  Additionally, for the first time ever, the survey found that public sector workers felt less secure than those in the private sector.  Similarly, our State of HR Survey 2013 found that job uncertainty in the public sector is greater than in the private sector.  The CEO of the CIPD suggested that this may be rooted in the culture of public organisations, with trust and communication issues being widespread.  Employers with policies giving staff a degree of involvement in decision-making tended to have the least anxious employees.

3 June 2013 - A job for life?

Mary Portas' new programme, "Mary's Jobs for Life", aims to help over 65s get back into work. Our State of HR Survey 2013 found that older people often find it more difficult to secure and maintain employment than their younger counterparts. In addition, 20% of employers surveyed still had a retirement age although many couldn't justify it.

Age discrimination is sometimes linked to gender. For example, Harriet Harman has recently released findings suggesting that in some professions women are more heavily impacted than men as they age.  Although the majority of over 50s in the UK are women, 82% of TV presenters who are over 50 are men.

Discrimination on the grounds of age can be unlawful under the Equality Act. Employers should ensure they are not making decisions based on the age of their workers and job candidates unless it can be properly justified.  This is often not as straightforward as employers initially think.

31 May 2013 - Employment Tribunal fees from 29 July 2013

From 29 July 2013, Claimants wishing to submit a claim to the Employment Tribunal will have to pay a fee to do so. 

The fees payable are dependent on the type of claim. Claims for sums due on termination of employment, such as unpaid wages and redundancy payments (called "type A" claims) attract a fee of £160 to submit and a further fee of £230 if the case proceeds to a hearing. More complex claims, including unfair dismissal, discrimination and whistleblowing (called "type B" claims), attract a fee of £250 to submit and a further fee of £950 for a hearing.

We have written in more detail about the introduction of Employment Tribunal fees, including the potential implications.

30 May 2013 - HMRC target disguised employment in LLPs

HMRC is concerned that LLP structures are being used to offer membership rather than employment to individuals in order to obtain tax advantages.  It has issued consultation outlining its proposals to enable it to treat an LLP member who meets certain conditions as being a "salaried member" - who would then be treated as an employee for income tax and national insurance purposes. 

The proposals include anti-avoidance provisions which would enable HMRC to look at the reality of the situation rather than contractual labels or provisions designed to avoid employment status.  It is highly likely that certain individuals found to be "salaried members" would then also qualify for statutory employment protection rights, such as unfair dismissal and redundancy.  LLP employers should consider the status of their "members" and whether they may face challenges as to that status, either from HRMC or the individual himself.

29 May 2013 - Are you using unpaid interns?

Businesses using unpaid interns are coming under renewed scrutiny to comply with minimum wage legislation.  Over the coming year, the Department for Business, Innovation and Skills and HMRC will embark on a campaign to inform students and young people of their right to be paid the minimum wage.  This campaign will include producing a booklet to inform students of their rights and encourage them to identify infringing employers.  Calls about the subject to the Pay and Work Rights Helpline will also be fast-tracked.

Although it can be lawful to offer unpaid work experience or to pay below the minimum wage in certain circumstances, employers should be careful to stay on the right side of the line.

22 May 2013 - Spotlight on Dress Code

Virgin Trains has introduced a new uniform which has reportedly been rejected by many female employees who say the  "flimsy" and "revealing" red blouse would allow passengers to see any dark coloured underwear.  In response, Virgin Trains has reportedly issued £20 vouchers "for ladies to buy undergarments to wear under their blouses".  The new uniform appears to be sailing close to anti-discrimination provisions in the Equality Act 2010.

Dress codes are frequently a contentious issue which, if not handled sensitively, may result unintentionally in claims of unfair dismissal and unlawful discrimination.  Whilst employers are entitled to have a dress code in order to protect their business image and reputation, this must be balanced against the employee's rights.  Different rules for men and women can be lawful, but the rules should not be more stringent for one group than another.  Dress codes and other workplace policies must be flexible in order to accommodate different religious sensitivities, particularly following the decision in Eweida and others v UK, when proportionate to do so.

20 May 2013 - Up to ten times as many bankers to be caught by bonus cap

The European Banking Authority has reportedly approved proposals that would require the cap on bonuses to apply to anyone whose pay is more than €500,000 irrespective of their role or impact on the risk of the company.  Pay experts have estimated that tens of thousands more bankers will be hit by the EU's bonus cap as a result. 

Previously, banks have been able to make their own calculations as to whom they regarded as the risk takers in the organisation, leading to concerns that there was a significant divergence between banks in the criteria being used to identify 'material risk-takers'.  For example, Deutsche Bank had 1,215 'material risk-takers' last year compared with Barclays' 393, despite Barclays' investment banking arm being bigger.

16 May 2013 - Whistleblowing: healthy or damaging?

A report by Greenwich University has shown that a staggering 74% of workers who called the whistleblowing helpline run by the charity Public Concern at Work said that their employers had done nothing as a result of their whistleblowing.  Worse still, 15% were ultimately sacked from their jobs, and many others said they were victimised. 

The report was released on the same day that a RSPCA whistleblower committed suicide five months after she had claimed that they were euthanising healthy animals. 

A Government consultation is underway to investigate whether the current whistleblowing legislation is failing to protect workers who speak up.  In the meantime, changes to the current whistleblowing legislation come into force on 25 June 2013.  Employers should consider updating their whistleblowing policies accordingly.

15 May 2013 - Are you sure a rejection of flexible working can be justified?

Marks & Spencer has hired a new style Director on a part-time basis (two days per week).  This comes on the heels of Yahoo banning its staff in the US from working at home.  Proponents of flexible working refer to reports of higher productivity from part-time workers and emphasise that it provides a way for employers to cut costs and retain talented staff.  However, the CFO of Google agreed with Yahoo's sentiment that some of the best results come from staff being together in the office, having impromptu meetings and sharing thoughts and ideas. 

There is still reluctance towards and stigma attached to flexible working in some industries making it difficult for many employees to climb the career ladder.  Yet from a legal point of view, this approach puts employers at risk of sex or age discrimination claims and statutory breaches unless the employer's decision can be properly justified.

13 May 2013 - Queen's speech: proposed employment changes

The Government has set out its legislative plans for 2013-2014 in the Queen's speech.  From an employment law perspective the changes announced were limited, although a number of employment law changes announced previously are due to be introduced in the period.

The following employment-related points were included in the Queen's speech, although there is limited detail at present:

  • changes to National Insurance Contributions (NICs) to reduce the NIC bill of employers (aimed mainly at small employers) and reduce the use of "abusive" tax schemes;
  • removing the power of Employment Tribunals to make wider recommendations in successful discrimination cases;
  • changes relating to Reserve Forces; and
  • immigration and pension related changes.

8 May 2013 - Can employers victimise employees post-employment?

In recent years, Courts have remedied apparent conflicts between domestic and EU law by adopting a purposive construction of that legislation whereby language can be substantially altered as long as the interpretation adopted is compatible with the underlying thrust of the legislation being construed. However, in Rowstock Ltd and ors v Jessemy the EAT concluded that it could not "plug the gap" by reading the Equality Act 2010 as providing a remedy for post-employment victimisation on the basis that to do so would amount to "an incomplete recasting" of the Act. In Rowstock, the employer provided an unfavourable reference to an ex-employee, who then argued victimisation because of his age.

Following this case, it would seem that those who have been subjected to post-employment victimisation since the Act came into force are left without a remedy against the perpetrator, undermining the discrimination and harassment provisions of the Act, and contrary to EU law.

However, less than two months post Rowstock, the EAT has allowed a claim for post-employment victimisation.  In Onu v Akwitu, the EAT held that the Equality Act could be interpreted in a way that was not contrary to EU law. As there are now two inconsistent EAT decisions, permission to appeal to the Court of Appeal has been granted. It is hoped that the Court of Appeal will be able to provide clarity as to whether post-employment victimisation is prohibited under the Act as currently drafted.

1 May 2013 - Enterprise and Regulatory Reform Act 2013

The Enterprise and Regulatory Reform Act 2013 has now been passed, paving the way for various employment law changes which we have summarised.

In addition, the Government has announced the dates that some of the changes will be made, beginning with changes affecting whistleblowing and dismissals on the grounds of political opinion which both take effect on 25 June 2013.  Dates for other changes will be released shortly and we will update you once we have more information.

12 April 2013 - The drive for more women on company boards

Vince Cable, the Secretary of State for Business, has warned companies that quotas for women on boards will be introduced if necessary.  This comes after the publication of data which shows that the target of 25% female membership of FTSE 100 company boards by 2015 may be missed.

The drive to get more women on boards has slowed during the last six months.  Although the percentage of female directors of FTSE 100 companies has increased by just over 2% from March 2012, the figure is down from September 2012.  If this is a permanent halt rather than a temporary setback, calls for women quotas may be re-voiced, although at present the Government still favours a voluntary approach.

11 April 2013 - Twitter comments before commencing employment

Paris Brown, the Kent Youth Police and Crime Commissioner, has resigned following criticism of messages she posted on Twitter.  Although a comprehensive recruitment process was in place, this did not include checking social media.

The rising use of social networking sites may mean that such vetting will be desirable by employers as part of their normal recruitment process in future.  However, employers should be cautious that they do not unlawfully discriminate as a result and that they consider Data Protection implications.

10 April 2013 - Fighting discrimination in football

The FA's proposal of a 10 match ban for footballers guilty of racial harassment or discrimination is a significant step to combating race discrimination which has plagued football in recent years.  The FA's proposal would pressure clubs to observe anti-discrimination law and control their players, as otherwise multi-million pound players could be left on the bench for much of a season.

This is not a unique problem for football and it was recognised when drafting the Equality Act 2010 that, although anti-discrimination legislation had been around for over 40 years, discrimination and harassment remain live issues in the workplace today.  Prohibiting discriminatory conduct by law is necessary, but has to be part of the overall approach to controlling discrimination.