Sexual Harassment: Flirting with Disaster

Posted by: on Nov 10, 2017 | No Comments

Following the series of allegations made against public figures over recent weeks, including actor Kevin Spacey and producer Harvey Weinstein, the topic of sexual harassment is a major national talking point. Whilst the media have focussed on allegations made against public figures, these issues can and do affect the workplace. It is also possible that staff, empowered by recent events and the #metoo social media campaign will begin to come forward with their own allegations and concerns.

As a modern employer you can, and should, take steps to ensure your workplace is a safe and welcoming environment for all of your staff and that any allegation of harassment is handled appropriately. Whether or not a complaint is well-founded, how the matter is handled (both in relation to the accuser and the accused) is key in workplace relationships and the protection of your business and its reputation.

What is sexual harassment?

Having a clear idea of what is (and what is not) sexual harassment is key to protecting your employees and your business. Unfortunately it is impossible to say in the abstract what will amount to sexual harassment and it would be equally unhelpful to trot out a legal definition, as there are some acts which, whilst legal, would be completely unacceptable in the workplace. In broad terms, sexual harassment involves unwanted conduct of a sexual nature.

This debate usually circles back to the ‘hand-on-the-knee’ which landed the former Defence Secretary Sir Michael Fallon in hot water last week. As a rule of thumb, where conduct is sexual in the workplace this should set off alarm bells and a starting point should be that that conduct is not appropriate. Where the complainant alleges that the ‘hand-on-the-knee’, whilst maybe not sexual, was not wanted, a modern employer may wish to treat such allegation as one of sexual harassment.

It is also worth remembering that sexual harassment does not necessarily require any physical ‘touching’. As we have seen over the past couple of weeks, lewd comments, emails, texts or seemingly innocuous advances can result in allegations of sexual harassment.

And yes, for these purposes the workplace includes after work drinks and the Christmas Party!

How do I deal with allegations of sexual harassment?

Where an allegation has been made against a member of staff (or ex-member of staff), a modern employer should deal with it with sensitivity and discretion. You should consider the personal turmoil which may have led up to the complaint and be prepared to hear the complainant out, regardless of your views on the severity of the alleged conduct or the seniority of the alleged offender.

It will usually be appropriate to investigate any alleged incidents of sexual harassment or abuse. The investigation should, where possible, be dealt with by someone independent to the case, the accuser and the alleged perpetrator in a way which minimises distress to all parties involved. Of course the investigation should be confidential, but employers should also consider more practical matters:

  • Should the accused be suspended?
  • Should the accuser and accused be prevented from working together in the short term?
  • What is the most appropriate venue for the investigation? The scene of the alleged incident will rarely be appropriate!
  • Do you need to speak to anyone else about the matter?
  • How will you phrase your questions to both parties?

Depending on the investigation findings it may then be appropriate to take disciplinary action. Conversely if there is no perceived case to answer after investigation, it is crucial that this is communicated to the accused and the accuser sensitively, without blame or judgement on either party. You will also need to think about how to manage the relationship between the individuals moving forward, perhaps with mediation.

What about historic allegations?

In some cases, the alleged conduct will have happened many years before any allegation is made. A modern employer should not dismiss an allegation as false or not worthy of investigation purely because it relates to historic conduct; certainly preparatory investigatory steps should be taken at least.

How can I be pro-active?

Let’s face it – there is little you can do about historical allegations of sexual conduct. There is also little you can do if a sexually charged employee is hell-bent on cornering their crush at the end of after work drinks at 3am in the dark corner of the bar. What you can do is take steps now to ensure that employees know:

  • Exactly what behaviour is, and is not, acceptable;
  •  What action to take if they feel they have been sexually harassed; and
  •  That any victims will be supported.

With that in mind:

  • Produce, publish and communicate your policy on sexual harassment in the workplace, the standards of conduct expected, what you consider to be the workplace and what action will be taken;
  • Re-train your staff (including directors) on sexual harassment and your policy on it; and
  • Review your grievance policy to check that it is appropriate to deal with sexual harassment matters.

Not only should all of that set out your stall on the matter and provide a mechanism for dealing with it, it will also offer you protections and legal defences as an employer if your business ever comes in the firing line.

If you would like more information on the content of this article, details of how to deal with allegations and how you can take a proactive approach to preventing sexual harassment, please call our Employmentor Team on 01603 281139.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

Mental Health in the Workplace

Posted by: on Oct 10, 2017 | No Comments

Mental health and wellbeing is an issue which touches every corner of society. This year, a report by Business in the Community suggested that three in five (60%) employees have experienced a mental health problem due to work, or where work was a contributing factor. This World Mental Health Day, we look at why mental health in the workplace matters (with the help of a lot of statistics!) and what a modern employer can do to help.

What’s the issue?

Poor mental health has a negative effect on both individuals and businesses, so as an employer it is important to keep an eye on the mental wellbeing of your staff. Poor mental health can lead to increased short term absences, high turnover of staff and decreased productivity.

In addition, almost one in three (31%) employees have been formally diagnosed with a mental health issue. Where an employee’s poor mental health amounts to a disability, their employer may have to make adjustments to their employment or physical surroundings (where it would be reasonable to do so).

It is therefore in the best interests of both employers and employees to help ensure employees’ mental wellbeing is safeguarded.

What can employers do?

It is important to have an open dialogue about mental health concerns. Only 53% of employees feel comfortable talking about mental health issues at work, and only 11% of those who have suffered from a mental health issue have disclosed it to their line manager. This is perhaps unsurprising given that 15% of employees who disclosed a mental health issue to a line manager say that they then became subject to disciplinary procedures, dismissal or demotion.

Modern employers should encourage employees to come forward with issues which are causing stress or concerns at an early stage. This will allow managers to assess the scale of the problem, offer support to the employee if appropriate, make changes if appropriate, or offer additional training. Employees should be reassured that they will not be subject to disciplinary procedures as a result of declaring a mental health issue (and, legally, should not be so subject!).

Employees taking intermittent short-term absences from work can be disruptive to an employer’s business. When an employee takes time off due to mental health issues, communication is key. Employers may consider altering the requirement for employees to call in when they are off sick, instead offering email or text as a temporary option if it helps to overcome a boundary faced by an employee with a mental health problem. Equally, setting parameters for updates and communication is crucial – too little is just as bad as too often! Back-to-work meetings can be a helpful tool to assist those who may be struggling with their mental health and open up lines of dialogue.

Where absences are more long-term, employers should attempt to keep lines of dialogue open. Offering support to employees whilst they are on long-term sickness absence may help encourage them back to work and will also help the employer establish whether a disability has developed. This is important, as in some circumstances there is a duty on employers to make reasonable adjustments for disabled employees.

It is also important that managers know how to tackle the issue of mental health absences and the conversations surrounding them. Training is therefore a key part of taking a proactive approach to mental health in the workplace. Whilst 84% of managers agree that the mental wellbeing of employees is their responsibility, only 24% of managers have received any training in mental health.

What are the benefits?

In short: happy, productive staff who aren’t suing you!

Taking a positive, proactive approach to mental health in the workplace can help reduce staff turnover, reduce the amount of work days lost to sick leave and ultimately make your business more productive and profitable. It also has huge reputational benefits and puts you a step further on the road to truly being a “modern employer”.

If you would like more information on the content of this article and how you can take a proactive stance on mental health in the workplace, please call our Employmentor Team on 01603 281139.

 

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

Compensation in Discrimination Claims set to Increase

Posted by: on Sep 11, 2017 | No Comments

New “bands” for calculating compensation to Claimants for “injury to feelings” in discrimination claims have been published, which come into effect for claims brought on or after today, 11 September 2017.

For claims issued from today, compensation for “injury to feelings” will be at the following rates:

  • Lower band: £800 – £8,400
  • Middle band: £8,400 – £25,200
  • Upper band: £25,200 – £42,000
  • Exceptional cases: £42,000 +

What is injury to feelings?

Injury to feelings is compensation awarded in discrimination claims. It is compensation to a Claimant for “injured feelings” – i.e. the hurt, upset, anxiety or distress that they have suffered as a result of discriminatory acts.

A Claimant does not usually need to show medical evidence or a diagnosis of any psychiatric injury arising from the discrimination in order to claim injury to feelings. Where a Tribunal is satisfied that a Claimant has been subject to unlawful discrimination, it then assesses how much upset a Claimant has suffered, looking at all of the circumstances of the case before it, to decide how much compensation should be awarded for injured feelings. The Tribunal does that by categorising treatment into “bands”:

  • The lower band. This band is used in less serious cases of discrimination, for example where the act of discrimination is an isolated or one off occurrence.
  • The middle band. This band is helpfully described by the Tribunal as being for “serious cases, which do not merit an award in the highest band”.
  • The upper band. The Tribunal will find that an award in the upper band is appropriate in the most serious cases, for instance whether there has been a lengthy campaign of discriminatory treatment. Only in the most exceptional cases will an award for injury to feelings exceed the upper band limits.

Once the Tribunal has determined which band the matter falls in to, it then looks to the set compensation levels for that band in order to determine how much compensation the Claimant should receive. So, if the Tribunal determines that the compensation awarded should be in the lower band, the Claimant will receive between £800 – £8,400 compensation for injury to feelings. The Tribunal also has the power to award a Claimant other compensation on top of that, including for any financial loss suffered, and for being unfairly dismissed (if applicable).

Why the change?

Earlier this year, the Court of Appeal made clear that it felt that compensation for injury to feelings had fallen behind inflation and was therefore in need of adjustment. That prompted the increase.

What does this mean?

The increase in the compensation bands is dramatic. Previously, the limits were £600 – £6,000 for the lower band; £6,000 – £18,000 for the middle band; and £18,000 – £30,000 for the upper band. As a result, the potential exposure to employers in discrimination claims has markedly increased.

For discrimination claims brought on or after 11 September 2017, the position is simple; a Claimant can now recover more than they would have done had they issued the claim last week. That said, it is important to take this uplift against the backdrop that awards in the upper and exceptional bands are rare, with the current average award for discrimination claims being just under £14,000. Whilst that average may increase, it is unlikely that many will ever face the upper band awards above.

For ongoing claims, the position is less clear. The Tribunal may exercise its discretion to apply a % increase on the previous bands (likely a 10% increase), though it is unlikely it would apply the new bands absolutely to any existing claims. What happens in practice we will wait to see…

So, the advice to employers does not change: tread carefully, and try not to unlawfully discriminate against employees…whilst it was potentially costly before, it is even more so now! If you are facing any allegations of discrimination, or are dealing with employees who hold a characteristics which might allow them to allege discrimination, please do not hesitate to be in touch with one of the Team for advice.

If you would like more information on the content of this article please contact our Employmentor Team on 01603 281139.

 

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

Holiday Pay Updates – Back with a Vengeance

Posted by: on Aug 2, 2017 | No Comments

Some of you will no doubt remember the barrage of holiday pay emails and updates we sent to you during 2015 and early 2016. After an 18 month hiatus, there has been another ruling in this arena which (almost) sets the position straight.

For those that do not recall (or have repressed) the holiday pay dramas of 2015, there was a flurry of cases on holiday which, in short, appeared to increase the scope of payments that must be included in holiday pay. At the start of 2016 we were certain that compulsory, non-voluntary overtime should be included in holiday pay calculations, as should a value for lost commission (which, of course, cannot be earned during a period of holiday), although no guidance had been provided on how to carry out those calculations. What we were also clear on was that truly voluntary overtime did not need to be taken into account in calculating holiday pay.

The Employment Appeal Tribunal has ruled this week in the case of Dudley Metropolitan Borough Council v Willetts that voluntary overtime does need to be included in holiday pay calculations where the circumstances mean that pay earned for voluntary overtime essentially forms part of a worker’s normal pay. It also confirmed that, in that case, holiday pay should include an amount in respect of on-call payments, and mileage allowances which were taxable as a benefit in kind, where they formed part of a worker’s normal pay.

Voluntary overtime

The decision means that, in contrast to the previous position where many employers did not consider voluntary overtime in calculating holiday pay, now voluntary overtime must be considered where it is if of a sufficient pattern to form part of “normal pay”. This will come down to the circumstances of each case, but the basic rule of thumb will be that the more regular the voluntary overtime, the more likely it is necessary to include it in holiday pay calculations. It is unlikely that you will need to consider truly one-off voluntary overtime hours worked when calculating holiday pay.

The general position

The basic position now is that holiday pay should include an amount in respect of any normal pay which is normally received by workers. That includes:

  • Commission payments
  • Overtime of any sort (whether voluntary, compulsory, or guaranteed)
  • Shift allowances
  • Stand by payments
  • Call out payments
  • Any travel payments which are treated as taxable remuneration (as opposed to reimbursement of expenses).

The position on whether or not bonuses should be included in holiday calculations remains uncertain. It seems likely that productivity or attendance bonuses will be considered part of normal pay, and therefore payable to workers when on holiday. Annual discretionary bonuses, bonuses based on purely company performance, and other bonuses are a different matter – currently there is no requirement that they should be included in holiday pay calculations, but as yet that has not been ruled on by the courts.

So that’s settled then?

For now, the elements listed above need to be included in holiday pay calculations. However, this decision could be appealed (as seems to be the trend in holiday pay cases), and we will have to wait to see if that is the case.

It also remains to be seen whether the Brexit process will affect the current position, which is derived from and based on European Law. It is therefore, in theory, open to the Government to depart from this decision post-Brexit.

There are also matters that are not settled – namely whether bonuses should be included in holiday pay calculations, and, perhaps more crucially, how holiday pay figures should actually be calculated. It is not clear whether they should be calculated with reference to the normal pay in the 12 weeks prior to taking holiday, 12 months prior, or something else. Some commentators have even suggested that the period for calculation should be on a case by case basis, which would, in our view, be wholly unsatisfactory and unworkable. Some employers are using a 12 week average, but it remains to be seen whether that is correct.

The key point to note is also that this ruling (and the previous rulings on this issue) only apply to the 4 weeks / 20 days holiday prescribed by European Law. The other 1.6 weeks / 8 days required by UK law is not affected by these cases. That means that employers can pay “basic pay” (without commission, overtime, allowances etc.) only, for 8 days of holiday. Needless to say, that makes calculating holiday pay incredibly administratively burdensome.

What do you need to do?

Legally speaking, all workers who take holiday should now, for 20 days of their holiday, receive a payment which includes an element for all the applicable factors listed above. There are various ways suggested by commentators to make those calculations, depending on the particular elements of pay that are to be included, and all of the ways are tricky and labour intensive, and, unfortunately, facts specific. Employers requiring any advice on that should contact the Employmentor Team, and we can help with the various calculation options and which one will be best / most appropriate for a particular scenario.

Practically, it may well be worth considering more generally the arrangements under which your staff are hired and your business is run. Options include:

  • Assessing the way in which you pay your staff; in particular your use of overtime, commission, and call-out pay arrangements;
  •  Assessing the manner in which staff hours are set and workloads are managed. A move to annualised hours or guaranteed hours might be more palatable and / or certain;
  •  Considering costs cutting measures elsewhere in your business if you cannot afford to absorb the increased holiday pay costs.

Planned carefully, changes could be made to the arrangements with your staff which will enable you to be (relatively) certain as to what your wage bill will be each year (as opposed to a more fluctuating one) and to manage staffing levels appropriately. If you would like to speak with any member of the Employmentor Team to chat through your options, please call 01603 281139 to arrange that.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

The Modern Employer

Posted by: on Jan 26, 2017 | No Comments

January is nearly over…the New Year’s resolutions are well and truly broken, and we’ve (finally) finished that last bit of Christmas cake. As the nights get longer and the twinkly lights of the festive season become a distant memory, the Employmentor Team is focusing on the upcoming year and is on hand to suggest new resolutions for you to adopt and (hopefully) stick to for (at least) the rest of 2017.

It is well known that, sometimes, employees can be, frankly, a bit of a headache. We’ve all been to seminars about the pitfalls of the employment relationship and how to solve any issues that might arise. That said, employees are often also a business’ greatest asset – after all, they do most of the work and are often the first or main point of contact with clients and customers. With that in mind, our resolution this year, and one which we encourage you to join, is to focus on being a Modern Employer. That means (to us) focusing on how to recruit, retain, and reward employees. It is a focus on treating employees properly, managing them properly, and rewarding them properly, in the hope that those pesky issues, which we are all so well versed in dealing with, do not arise. So, instead of us helping you prevent an employee from joining a competitor when they resign, they will not want to resign in the first place. Instead of us helping you manage issues that arise from an employee who is off on long term sick with stress, you never reach the point where that person feels the need to sign themselves off.

Of course there will still be situations where you need to take firm action to manage employees, and as you know, the team here are always on hand to deal decisively with any problems that arise. However, in an increasingly difficult market, a focus on being a Modern Employer should help to:

  • Recruit quality employees;
  • Retain quality employees;
  • Increase your business’ productivity and efficiency;
  • Distinguish your business from your competitors; and
  • Make your business more attractive to clients and customers.

After all, many work-seekers and companies judge a business on how it treats its people. Already this year there has been a worldwide call on key figures to act responsibly and to ensure equal treatment. If you can set your business apart as one that treats its employees with respect, it may just mean that you edge the recruitment of an exceptional candidate, or win business from a new client or customer (and should give you less HR headaches to deal with!).

Over the course of the next year the Employmentor Team will be running a number of seminars on ‘The Modern Employer’, and will be focusing its email updates on that theme. Keep your eyes peeled for our first article in the next couple of weeks, and an invite to our first seminar on this topic – we’re excited to see you there!

Call the fashion police, that dress code is discriminatory… or is it?

Posted by: on Jul 20, 2016 | No Comments

Can you make your receptionist wear heels? What about a ban on headscarves, turbans, or wearing the cross? Can you stop your staff wearing a badge for their political party of choice? Dress codes have long been a battleground between employers and their staff, and as a number of recent cases show, it can be a difficult line to draw between keeping staff looking smart, and keeping on the right side of the law. You could face a discrimination claim if your policy places employees at a disadvantage because of a protected characteristic such as their sex or religion.

Heels or flats?

As you might have seen in the news, a female receptionist has begun a petition to ask the government to address allegedly sexist dress codes after reportedly being sent home for refusing to comply with a requirement to wear 2 to 4 inch heels at work. Much of the media coverage has labelled this policy sexist and some have raised concerns that this policy may amount to sex discrimination under employment law.

Whilst her petition is receiving a lot of attention, her employer’s dress code policy is not actually unlawful. Simply because men are not also required to wear heels does not make the policy inherently unlawful; consider that there could well be a similar policy that men must wear ties (and women do not), which clearly is not unlawful discrimination. An employer is permitted to have different dress codes for men and for women, provided that the dress code applies an equal overall standard of appearance between the sexes and is not, for instance, because the employer believes that women look more attractive in high heels!

Keeping it neutral

Employers also need to respect their employees’ religions when deciding on a dress code. In the recent case of Achbita and anor v G4S Secure Solutions, which was referred to the European Court of Justice (“the ECJ”), a Muslim woman who worked as a receptionist for a security firm was told by her employer that she would not be allowed to wear a headscarf for religious reasons. Ms Achbita claimed that she was being discriminated against because of her religion.

Initial comments by the ECJ suggest that her employer might be able to defend the claim based on its policy of complete neutrality. Her employer had a policy which prohibited employees from wearing any visible signs of political, philosophical or religious beliefs and from giving expression to any ritual arising from them. The company argued that it was vital to appear completely neutral to its clients. The ECJ suggested that because the policy was so wide and so strictly applied, it was not discriminatory against Ms Achbita on the grounds of her religion.

Ban on headscarves was unacceptable

In the similar case of Bougnaoui and anor v Micropole SA, which has also been referred to the ECJ, a design engineer was asked by her employer not to wear a religious headscarf when at one of its client’s premises. As with the case above, Ms Bougnaoui brought a claim for discrimination based on her religion.

The employer in this case had received complaints from its client that Ms Bougnaoui’s headscarf had made its staff feel uncomfortable, and the employer was keen to maintain a good relationship with this client. This employer also said that it wanted to appear neutral, although its policy was less clear and strict than the one in the case above. Early comments from the ECJ in this case, however, have indicated that the employer’s actions here were discriminatory. The ECJ has indicated in this case that an employer should only be able to restrict an employee from wearing religious items such as a headscarf where it is strictly necessary, such as for health and safety reasons.

So why the difference?

Our view is that the reason for the contradictory views expressed by the ECJ comes down to the clarity of the dress code and the motivation behind its implementation. The policy in the first case (Ms Achbita) focussed on complete neutrality, it was clear, strictly applied and applied to all religions and beliefs indiscriminately. In contrast, in the second case (Ms Bougnaoui) her employer was simply reacting to a discriminatory comment made to it by its client, and was focussed on maintaining the business relationship only. Any policy it did have in place was less wide, had no clear rationale, and not as strictly applied.  That said, the views do now put businesses in a difficult position, as the ECJ has arrived at completely opposite decisions in respect of very similar facts.

What does this mean for you?

We will have to wait and see how the courts resolve the cases above, however, what is clear is that employers will have to tread carefully in terms of discrimination issues if they want to implement a dress code. You need to think carefully about whether the requirements will affect men and women differently or prevent someone from expressing their religion or other characteristic without good reason. If an employee has a good reason for challenging the dress code, it is usually good practice to take this seriously and investigate their concerns.

That said, employers can still be confident in setting a sensible dress code. For example, it is perfectly acceptable in a professional services environment to have a “no shorts or sandals” rule… even in this heat! If you have any concerns, or are thinking about bringing in a dress code, just give the Employmentor Team a call on 01603 281139 and we will be happy to help.

 

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

Employment Law Changes: April 2016

Posted by: on Apr 1, 2016 | No Comments

Over the last few months there have been a number of changes and updates in the world of employment law, and some important tribunal decisions have been made. There are always a raft of changes in April, and in order to keep you up-to-date, we’ve summarised these below.

 

Upcoming Changes:

Introduction of the Living Wage

From 1 April 2016, the Government will introduce the Living Wage. This will add a premium to the minimum wage, increasing the legal minimum wage for any employee over 25 to £7.20 per hour.

Compensation Limit Increases

From 6 April 2016, the maximum limit for a weeks’ pay will increase from £475 to £479. This is used to calculate both statutory redundancy pay and the basic award element of compensation for unfair dismissal. The maximum compensatory award for unfair dismissal will also increase from 6 April, increasing from £78,335 to £78,962 (or 52 weeks’ pay, whichever is lower). Small changes, but not ones to overlook.

Other Rates

Unusually, there will be no increase to the statutory maternity, paternity, adoption or shared parental pay rates, or to statutory sick pay.

Modern Slavery Act

Introduced last October, this Act will require organisations with a turnover of over £36 million worldwide to prepare a modern slavery statement each financial year. This statement must set out what steps the organisation is taking to ensure modern slavery isn’t occurring in their business or their supply chain. The statement should be prepared after the financial year end, and applies to organisations with a financial year end of 31 March 2016 onwards. We’ll be sending out further information soon, so keep your eyes peeled for an article explaining exactly what is required.

 

Recent Developments:

Employer Liable for Employees’ Actions

It has long been the case that an employer can be held liable for the actions of their employees. However, a recent court decision has highlighted just how far this liability can stretch after an employer was found to be liable for the violent assault of one of its customers by a member of its staff. To avoid a potentially costly claim, employers should ensure staff are appropriately trained and expectations of behaviour are clear.

Holiday Pay update

The appeals we mentioned in our last update have now been decided (see our recent article). Commission and overtime can both form part of an employee’s statutory holiday pay, provided it’s part of their normal pay. Unfortunately, the decisions did not explain exactly how holiday pay should be calculated in these situations. There are set to be further appeals in the future, so watch this space!

Long Term Lay-off

Typically used in manufacturing sectors, lay-off refers to a temporary situation where employees are provided with no work and no pay, but remain employees of the business. It is usually used as an alternative to redundancy to deal with a sudden downturn in workload or unforeseen circumstances. Importantly, an employee can only be laid off where the right to do so is expressly included in their contract of employment.

Lay-off is a temporary solution and helpfully, a recent case has held that there is no need for the length of time which the employee is laid off to be “reasonable”. Where the contract of employment allows for an indefinite period of lay-off, this can be enforced, even if an employee is laid off for a long period of time.

No Change to Sunday Trading Laws

In what promised to be one of the biggest trading law shake-ups in recent years, the Government had planned to overhaul the Sunday Trading Laws, relaxing the existing restrictions. However, these plans have now been dropped following a vote in the House of Commons which rejected the changes.

 

For more information on any of the changes above, please contact a member of the Employmentor team on 01603 281139.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

 

Holiday Pay (for a change)

Posted by: on Mar 2, 2016 | No Comments

You may recall that a short while back we reported on a decision in the Employment Tribunal in the case of Mr Lock v British Gas, which held that where an employee is paid via commission (in whole or part), their holiday pay should include an element in respect of that commission. British Gas, however, appealed the outcome and the Employment Appeal Tribunal (“EAT”) passed Judgment on the appeal last week.

The case centred around Mr Lock, who worked for British Gas.  His salary package was broken down as roughly 40% basic pay and 60% commission. Mr Lock was unable to earn commission during his holidays (as he was not working), and he complained to the Tribunal as he believed that this was unfair and operated to deter him from taking his holiday. The Tribunal agreed with him. Last week the EAT upheld the Tribunal’s decision that holiday pay should include commission if this is part of a workers’ normal pay.

UNISON general secretary Dave Prentis said “This is a victory for workers and victory towards fair pay in this country and beyond”.

The decision means that workers’ pay for annual leave periods must include commission, as well as basic pay, if this is what they are normally paid. The case comes quickly on the back of the EAT decision in Bear Scotland v Fulton which set out that overtime pay should in certain circumstances also be included in a workers’ pay whilst on annual leave.  Unhelpfully, neither case sets out how employers should calculate what the value of the commission/overtime should be, so whilst employers can now be (relatively) certain that commission and overtime should be considered as part of holiday pay, it is not clear how payment of that should be made.

These recent cases throw up a number of practical complications for employers on many different fronts, and certainly could cause headaches when calculating holiday pay. There are many different ways to deal with these implications and our team of expert employment lawyers can work with you to provide practical solutions and advice on the current position tailored to your specific business. For more information on your options in respect of holiday pay please do not hesitate to call any member of the Employmentor Team on 01603 281139. 

 

Coffee anyone? Starbucks employee wins discrimination case

Posted by: on Feb 10, 2016 | No Comments

In the wake of the negative publicity over their payment of tax in the UK, Starbucks finds itself facing more criticism following the Employment Tribunal’s recent decision that the company had discriminated against a dyslexic employee.

The case related to an employee, Meseret Kumulchew, who worked as a supervisor in the Starbucks Clapham branch. Her role included taking temperature readings from fridges, and water, at certain times within the branch. She was then required to add these details to a duty roster. Starbucks found that Ms Kumulchew had entered incorrect data and accused her of falsifying the records. The treatment and allegations Starbucks made against Ms Kumulchew is reported to have pushed her to the brink of suicide.

Ms Kumulchew took Starbucks to the Employment Tribunal alleging disability discrimination on the basis that her mistakes in recording the data were as a result of suffering from dyslexia, which meant that she had difficulty with reading and writing.

The Tribunal found in her favour, stating that Starbucks had failed to make reasonable adjustments for her disability, and that she had been subject to discrimination because of the impact of her dyslexia. The Tribunal also found that she had been victimised by Starbucks, as it had failed to understand the equality issues in relation to Ms Kumulchew’s dyslexia and the effects it had on her work.

This case brings into stark focus the need for employers to be aware of what falls within the meaning of “disability” under the Equality Act 2010 and the obligations to make reasonable adjustments for disabled employees.

Is an employee disabled?

Whether an employee is disabled under the Equality Act 2010 is a legal test and does not necessarily correspond with other tests or perceived perceptions. Some conditions are deemed to be disabilities. For other conditions, the law asks four questions to determine whether an employee would be classed as disabled:

  1. Does the employee have a physical or mental impairment?
  2. Does this effect their ability to carry out normal day-to-day activities?
  3. Is the effect substantial?
  4. Is the effect long term (12 months generally)?

If an employee does come under the legal definition of “disability” under the Equality Act 2010, employers are under an obligation (amongst other things) to make reasonable adjustments.

Reasonable adjustments

Employers are under a duty to make reasonable adjustments to help disabled job applicants and employees. The duty effectively means that the employer must then make necessary alterations to remove the disadvantages suffered by the individual as a result of their disability.

A disadvantage may occur due to:

  • A physical feature of an employer’s premises;
  • A provision, criteria or practice adopted by an employer that places a disabled individual at a disadvantage – for instance, if an employer has set targets, but an employee has a condition which affects their concentration at work and makes it hard for them to meet those targets, that employee could be put to a disadvantage if they were to receive less bonus/be placed under performance management processes as a result.
  • An employer’s failure to provide an auxiliary aid.

If one of the above situations arises, the employer should look at making reasonable adjustments. What is reasonable is always a key question, and a difficult one to answer, as this will depend upon the circumstances of the case. Reasonable adjustments include (but are not limited to):

  • Adjusting physical premises;
  • Altering hours of work;
  • Additional training;
  • Providing supervision or other support;
  • Modifying internal procedures such as disciplinary procedures; or
  • Acquiring or modifying equipment.

In the case of Ms Kumulchew and Starbucks, Ms Kumulchew was put to a disadvantage by being accused by her employer of falsifying documents, being given lesser duties at her branch and being told to retrain. Examples of reasonable adjustments Starbucks should have made to overcome the disadvantage would have included giving instructions visually/verbally in relation specific tasks, providing support with proof reading and taking alternative steps to manage the issue, as opposed to amending the duties.

For more information on disability or reasonable adjustments please do not hesitate to contact any member of the Employmentor Team on 01603 281139.

Note: the content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

New Year, New Laws – the changes to expect in employment law in 2016

Posted by: on Jan 11, 2016 | No Comments

As New Year’s resolutions are made (and broken), and everyone looks forward to the year ahead, employment lawyers contemplate a busy year with a number of key employment law changes scheduled. This update provides an overview of upcoming shifts in the employment sphere, which may impact employers and employees alike in the coming months.

Zero Hours Contracts

As of today, 11 January 2016, the Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 will come into force.  Whilst exclusivity clauses in zero hours contracts were prohibited in 2015, the Regulations provide a further layer of protection for zero hours workers by giving a remedy against employers who subject the worker to a detriment, or dismiss them, for breaching any such (unlawful) exclusivity clause.

Holiday pay

Our November 2015 update discussed the current (and vague) position of what is and what isn’t included in the calculation of holiday pay. It is anticipated that the seminal case of Lock v British Gas Trading Limited will provide a greater insight into how to approach commission payments when calculating holiday, as well as whether or not bonuses should be taken into account when calculating holiday pay (currently they are not). The EAT heard this case last month, however, judgment has not been delivered.  Stay tuned for further news!

Reporting gender pay gaps

By 26 March 2016 the government must introduce legislation to compel private sector employers with 250 or more employees to publish information about the differences in pay between men and women, including the disparity in their bonus payments. At this stage, little information is known as to what precisely employers must provide, or where the information is to be published, but we will of course keep you updated.

The National Living Wage

The National Living Wage spells good news for employees but potentially damaging news for the small business. Due to come into force on 1 April 2016, the National Living Wage adds a premium onto the existing National Minimum Wage for all workers aged 25, entitling them to an increased hourly rate of £7.20.  Businesses should (if they have not done so already) consider the impact this will have and any strategies they may need to implement to deal with any resulting increased cost pressures. Speak to one of the employmentor team if you would like assistance in this process.

Statutory parental pay and sick pay

There will be no annual increase to the weekly rates of statutory maternity pay, statutory paternity pay, and statutory sick pay in 2016. Rates will therefore remain at £139.58 per week for maternity (after the initial 6 weeks) and paternity pay, and £88.45 for sick pay.

Apprenticeships

Employers and organisations will be banned from describing an arrangement as an ‘apprenticeship’ when used to describe a scheme that is not a statutory apprenticeship.

Tribunal Fees

The Justice Committee is conducting an inquiry into the effects of changes to court and tribunal fees including, in particular, the introduction of employment tribunal fees. MPs have fervently backed this inquiry by calling for a review of tribunal fees to allow access to justice to employees. The outcome of such a review may, once again, have a huge impact on the level of tribunal claims faced by employers.

Grandparental Leave

Consultation will begin in the early half of 2016 in relation to the introduction of so-called “grandparental leave”, which would allow grandparents to take statutory leave to care for their grandchildren. However, this is not likely to come into force until 2018.

As ever, if you have any HR or employment law concerns, contact the employmentor team for advice on 01603 281139.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.