Important amendments to payslips

Getting your payslips right, and making sure all the right information is on them, is an essential task for any employer. Making sure your payslips are up to standard is going to be even more important from 6 April 2018, when important changes to the legislation on payslips.


First of all, let’s take a look at how things stand currently.

There are penalties if employers fail to supply an employee with a copy of a payslip. If they don’t, the employment tribunal can order the employer to reimburse the employee with the full amount of any unauthorised deductions made in the 13 weeks preceding the application. That’s a hefty price to pay for not getting your house in order.

Under the Employment Rights Act 1996, employees have certain rights when it comes to their payslips. Under UK legislation, payslips must contain particular information. This includes:

  • The date of payment;
  • The gross amount of the wages or salary;
  • The net amount of wages or salary payable;
  • The amount and payment method of each part-payment, where different parts of the net amount are paid in different ways;
  • Method of payment (e.g. BACS transfer);
  • The amounts of any variable or fixed deductions from the gross amount and the reason they are made (e.g. National Insurance, tax, contractual deductions such as insurance etc.)

Whilst traditionally payslips have been paper statements many employers now supply them electronically, and HMRC guidance says that a payslip ‘can be in either paper or electronic format’.


So what amendments to the Employment Rights Act 1996 should employers be preparing for?

The important point concerns wages or salaries that vary by reference to time worked. Where this is the case, the total hours worked in respect of the variable amount of wages or salary must be shown, either as:

  • a single total figure, or
  • separate figures for different types of work or different rates of pay.

The change is set to come into force very soon, so employers need to update the information on their payslips ASAP.

For expert, plain-English advice on the legislation surrounding payslips, you can contact Alison here.


Getting the GDPR right for HR

With the implementation of the GDPR just around the corner (May 2018), it’s essential to consider how the new regulation is going to impact on HR matters. We know how tricky this can be, particularly for small businesses with no in-house team to guide them through the steps to compliance.

The  European Commission has recently put together some guidance on the GDPR, which you can take a look at here. Alongside this, they’ve also launched a new online tool for SMEs, which you can find here. The tool aims to raise awareness of the GDPR, and gives practical advice to help guide you through to a successful conclusion of the GDPR.

Similarly, the ICO has updated its guide to the GDPR. These updates include:

  • More information on the ‘lawful basis’ for collecting personal data, such as legal obligation, vital interests and public task, and
  • A more detailed explanation on personal data breaches.

You can find the full guide here. Alongside the guide, the ICO has also published guidance on documentation, and the new requirements under Article 30 of the GDPR. You can see that here.

If you’re not already a part of our community, now is the perfect time to join us. Here at Enlighten HR we will be advising clients (not people on the general mailing list so now might be a good time to talk to us about joining our community) on the HR related steps you need to take to make sure you’re GDPR compliant. As part of this we’ll also be supplying a GDPR Policy and a range of other employee-related paperwork.

If you’re interested, you can find out more by contacting Alison here.

Dismissed pregnant woman loses European court case

Following a claim by a pregnant woman who was made redundant by Spain’s Bankia, the ECJ has ruled that the dismissal was lawful.


What do you need to know

Whilst the dismissal of a pregnant worker is prohibited under the EU Directive 92/85, and covers the time between conception and the end of maternity leave, there are some exceptions.

If a pregnant worker is dismissed, but the reason for the dismissal is not connected to pregnancy, then the move does not infringe upon EU law.

Under EU law, an employer must state in writing the reason for their decision to make a collective redundancy.

They must then inform the pregnant worker of the criteria used to decided who will lose their jobs.

In this case, the dismissed pregnant worker was informed that she had been given a low score in a company assessment.


Lessons learned

The case is not just a reminder of the rights of pregnant workers, but also the importance of documentation.

If you’ve got to make a group of employees redundant, then you need to be clear about the basis for which you are choosing who stays and who goes.

On top of this, you need to be clear with pregnant workers, by communicating with them personally and in writing, that the reason for their redundancy is not based upon their pregnancy. Any ambiguity could be potentially harmful in the long run, so document everything well.

For plain-English, expert advice on any of the above, you can contact Alison here.

Statutory payment rates confirmed for new tax year

The Social Security Benefits Up-rating Order 2018 has now been published in draft form, and points out a number of statutory payment rates that employers are going to need to consider. Most importantly, it states that:

  • The standard weekly rates of statutory adoption pay (SAP), statutory maternity pay (SMP), statutory paternity pay (SPP) and statutory shared parental pay (ShPP) are set to rise from £140.98 to £145.18 from 1 April 2018 (or 90% of the employee’s average weekly earnings if that is less than the statutory rate)
  • From 6 April 2018, the weekly rate of statutory sick pay (SSP) is set to rise from £89.35 to £92.05

As well as this, the Social Security (Contributions) (Rates, Limits and Thresholds Amendments and National Insurance Funds Payments) Regulations 2018 has also been published in draft form. It confirms that, from 6 April 2018, the lower earnings limit (LEL) will increase from £113 to £116 per week. Employees below the LEL do not qualify for SMP, SAP, SPP, ShPP and SSP.

For plain-English, expert advice on any of the above you can contact Alison here.

CJEU judgment opens door to backdated claims for unpaid holiday

A recent decision by the CJEU has expanded the scope of the right to carry over holidays to situation where workers are stopped from taking their leave for reasons other than sickness absence. Here’s a look at the case, and why employers need to pay attention.

 The background

Between 1999 – 2012 Mr King Worked for Sash Windows as a salesperson on a self-employed basis, and was paid on a commission only basis. Because he was self-employed, his contact did not state if he should receive annual leave.

In 2009, Sash Windows offered Mr King an employment contract, but he decided to remain self-employed. Mr King took his full annual leave entitlement on some years, but he did not request all of it in a number of other years. The tribunals have accepted that Mr King would have taken more holiday if he had been paid for his leave.

When Mr King reached 65, Sash Windows terminated his contract. Subsequently, Mr King brought claims for age discrimination and unpaid holiday pay under the WTR 1998 to the employment tribunal. The employment tribunal accepted these claims, stating that both the company and Mr King had wrongly believed that he was self-employed when he was, in fact, a worker.

The case

Mr King claimed that he was entitled to holiday pay relating to:

  1. paid leave accrued but untaken during Mr King’s final (incomplete) leave year
  2. holiday which Mr King actually took during the previous 13 years with Sash Windows but was not paid
  3. leave which Mr King was entitled to by virtue of being a worker whilst working with Sash Windows but had not actually taken

With respect to his claim for discrimination and paid holidays, Mr King succeeded in the employment tribunal. The third point above, however, was appealed to the EAT and then the Court of Appeal, with the court of Appeal referring the case to the CJEU.

What this means for employers

The decision is particularly topical given the recent high-profile worker status cases involving Uber and Deliveroo and others. Whilst the CJEU’s decision is not binding on UK employers at this stage, businesses with individuals on contracts without paid holiday will need to keep an eye on this case’s outcome as it could result in further holiday pay being due.

We’ll keep you updated as the holiday pay law moves on. In the meantime, you can click here to contact Alison for more expert advice.

Lessons to be learned from Uber and Deliveroo

Last November we updated you on the EAT’s ruling that Uber drivers should be classified as ‘workers’ and not self-employed. Now one of the most high-profile cases regarding the ‘gig economy,’ most employers will be familiar with the case. You can read the full judgement here.

Essentially, two Uber drivers brought a claim to the Employment Tribunal for unlawful deduction from wages, as well as a failure to provide paid leave. The drivers won the case, successfully persuading the Employment Tribunal that they were workers, and as such were protected under the Employment Rights Act 1996 (ERA). Uber, however, continued to argue that the drivers were in fact self-employed, and so the protections of the ERA did not apply to them.

Whilst Uber appealed this decision to the EAT (unsurprisingly, given the potential costs to Uber that the ruling could incur), the EAT upheld the Tribunal decision and found that the drivers are workers. This means that Uber drivers, as well as being entitled to the minimum wage and paid annual leave, can also raise claims for unlawful deduction of wages.

It’s a good idea to pause and consider the arguments that Uber put forward, which the EAT subsequently dismissed. Uber argued that:

  • It only provides the technology platform to facilitate a taxi service, rather than providing a taxi service itself;
  • The taxi service is, instead, provided by the driver and there is a contract between driver and passenger for each journey;
  • The drivers are self-employed;
  • Uber London Limited holds the required private hire vehicle operator licence.

But the EAT backed the Tribunal’s original decision, stating that this arrangement was indicative of worker status. It claimed that:

  • There is an interview process for potential Uber drivers and successful candidates must complete an induction;
  • A driver can be terminated in the case of serious misconduct or if their ratings drop;
  • Whilst drivers might be able to decide where they can work, they are required to undertake to the work personally for Uber, which indicated an employment relationship.

Whist the Tribunal held that Uber drivers are not obliged to turn on the Uber application or accept an assignment, a driver is working for Uber under a worker contract if:

  • Has the application turned on;
  • Is within their authorised territory for work;
  • Is able and willing to accept assignments.

This means that they should be afforded worker rights and protections in accordance with the ERA.

But it isn’t all bad news for the flexible workforce, or those that want one. It’s certainly not impossible for companies to enter into a genuine contract of self-employment, but employers must remember how this operates in practice. It doesn’t matter what label either party may put on their relationship, if the legal definition with ‘worker’ is met then the party providing the service is likely to benefit from worker rights.

The outcome of the Uber case is similar to that of Deliveroo, which received a judgement on their case last November. Deliveroo is another app-based service, with riders delivering takeaway food to customers from participating restaurants. Unlike the Uber case, however, Deliveroo riders were not found to be workers by the Central Arbitration Committee (the CAC) after the Independent Workers Union of Great Britain submitted an application.

The CAC made a decision on the basis of section 296 of TULRCA, whereas in the Uber case, the definition of a “worker” is set out in section 230 of the Employment Rights Act. The interpretation of the Employment Rights Act is outside the jurisdiction of the CAC, and so its comments would not be binding on an employment tribunal here. In the Deliveroo case, on there was evidence that riders took advantage of their right of substitution and sent another rider on a delivery in their place.

This goes to show that, whilst genuine self-employment is possible, it needs thought out, particularly in the current climate, if you’re to avoid a costly dispute.

For more expert HR advice, you can contact Alison here.


Termination: make sure you follow what the contract says you need to do

In a previous article, we took a look at the importance of being honest when terminating an employee’s contract. It’s never going to be quick and easy, so it’s essential that employers comply with the contractual process of termination. The recent decision in Interserve Construction Ltd v Hitachi Zosen Inova AG shows just how important it is to understand and comply with this process for the termination of a construction contract.

The background

The case concerns the construction of an energy from waste plant in Hartlebury. In July 2015, the main EPC contractor sought to terminate its sub-contract with its subcontractor. The EPC contractor had issued a letter and made arrangements to remove them from site with immediate effect.

Whilst the sub-contractor could have justified immediate termination on a number of grounds, including those relied on by the EPC contractor, the contract stated that the EPC contractor:

“…may (at its absolute discretion) notify the Contractor of the default and if the Contractor fails to commence and diligently pursue the rectification of the default within a period of seven (7) Days… terminate the employment of the Contractor under the Contract.”

It was this that the sub-contractor used to argue that the contract hadn’t been terminated in the correct way, because the EPC contractor had not issued a notice and allowed a seven-day period for rectification of the default.

The case

 The EPC contractor tried to rely on reference to its “absolute discretion” under the clause, and argued that it was exercising this discretion in not allowing the seven days for rectification. But the court disagreed, holding that the notice and seven-day period for rectification was not optional but was a condition precedent. This meant that it had to be complied with prior to the EPC contractor having the right to terminate.

A termination event may have occurred, and it may have been in the EPC Contractor’s absolute discretion to terminate. However, the case demonstrates that the exercise of that discretion had been expressly limited by the terms of the contract, which means the necessary notice had to be given.

 Key points for employers

 The case is an important reminder that both parties must be clear on the rights surrounding termination, both when entering into a contract and when bringing one to an end.

When entering into contracts, make sure to:

  • Establish if there are any notice requirements and weather they are a condition precedent. Read the termination clauses carefully and look out for words such as ‘shall’, ‘subject to’ or ‘condition precedent’;
  • Check for any custom amendments to the timeframes for serving any necessary notices. The standard form can be amended to allow the notices to be given as early as possible.

When it comes to serving any notices, make sure to:

  • Comply with the form which the contract requires. This will normally mean giving the notice in writing, and should describe the circumstance relied on and reference the relevant contract provisions;
  • Serve the notices in the correct way. The contract might require it be served on a particular office or person, or in a specific way like recorded delivery.

If you skip out on the details, you could pay the price – even if there are genuine grounds for termination.

For more advice on the issue, you can contact Alison here.

Honesty is always the best policy when it comes to employee terminations

None of like to have tough conversations with our employees about their poor performance, and we enjoy terminating their contract even less. Whilst it might be hard, the latest decision from the EAT in Rawlinson v Brightside makes clear the importance of telling it how it is, as much for your sake as for the employee. No matter how difficult the conversation might be, it could save you lengthy legal action in the long run.

The background

We’d like it if HR wasn’t complicated, but, unfortunately, the opposite is usually the case. In this situation, there should have been a straightforward non-completion of the probationary period, however Brightside made things a bit trickier. There had been concerns surrounding Mr Rawlinson, the new Group Legal Counsel, and his performance since early in his tenure, although nothing was raised with him. Behind the scenes, however, red flags had been popping up and mistakes had been identified within four months. Subsequently, it was decided that Mr Rawlinson’s employment would be terminated.  Whilst discussions of alternative arrangements for legal advice began, Mr Rawlinson remained none-the-wiser.

A month later, the Company informed Mr Rawlinson that it had reviewed their approach to managing legal services and concluded that the current arrangements were not working. Instead, they would be making greater use of external legal expertise and would no longer require Mr Rawlinson. He was given his contractual three months’ notice, with the Company expecting him to stay on and help with the transition to new arrangements.

But it wasn’t going to be that simple. Instead, Mr Rawlinson felt that if legal services were being outsources then it was a TUPE transfer and, at the very least, he should have been informed of the name of the firm to which the services were being outsourced. After realising that things didn’t quite add up Mr Rawlinson resigned and claimed constructive dismissal. Upon submitting a subject access request, it will come as no surprise that Mr Rawlinson soon came to realise that the real termination was because of his poor performance.

The case

Whilst Mr Rawlinson’s claims regarding non-compliance with TUPE information and consultation obligations were dismissed, as TUPE did not apply, there is a more pressing issue at hand. Mr Rawlinson’s claim for constructive wrongful dismissal was based on breach of the implied contractual duty of mutual trust. In fact, his argument was not that the implied term gave him a right to a fair procedure and to be told the real reason for his dismissal. Instead, he argued that there is an employer’s duty to be honest and not to mislead their employees.

The EAT found that in all but the most unusual cases the implied term means an employer must not deliberately mislead, even if their intensions are honourable. It does not constitute a broader obligation to volunteer information, but where a reason for termination is given, it must be done openly and honestly. The EAT did acknowledge that there may be particular cases in which the operation of the implied term would permit an element of deceit, but this did not apply here.

What this means

The case does not mean that there are more obligations on employers to inform employees either collectively or individually. Instead, the lesson is to not be afraid of being honest about employee performance, even if this is difficult. As more companies move towards a model of continual feedback rather than the traditional annual appraisal process, giving messages about ways to improve performance should be easier and news of under-performance should not come as a surprise. With the implementation of GDPR just a few months away, employers are under increasing pressure to be more transparent with their employees. This case demonstrates that if you choose not to be transparent, it is better to say nothing than to mislead.

If you’re affected by any of these issues, you can get expert advice from Alison here.

Autumn Budget 2017: Key points for employers

Although the Autumn Budget was delivered last year, there are a number a key points that will be coming into effect this April. Employers – keep an eye out!

The Autumn Budget 2017 has a number of measures that employers will be interested in, particularly relating to employment status consultation. There’s going to be a consultation to consider if and how the employment status tests for employment rights and tax can be made clearer. This follows The Taylor Review, published in July, which made a number of suggestions for reforming employment status and workers’ rights.

A joint report of the of the Work and Pensions and Business, Energy and Industrial Strategy (BEIS) Committees recommends legislation which would provide clarity on employment status, and put in place “the best” of the Taylor Review’s recommendations. This is likely to be part of the consultation when it’s launched.

Other key points of the budget include:

  • An increase of the national living wage (which applies to workers over 25) of 4.4% from £7.50 to £7.83 in April 2018. At the same time, there will also be an increase in the national minimum wage, from:
  • £7.05 to £7.38 per hour for 21 to 24 year olds
  • £5.60 to £5.90 per hour for 18 to 20 year olds
  • £4.05 to £4.20 per hour for 16 to 17 year olds
  • £3.50 to £3.70 per hour for apprentices.
  • A rise of the Personal allowance to £11,850 in April 2018, in accordance with the Conservative manifesto pledge to increase the personal allowance to £12,500 by 2020/21. The higher rate threshold will increase to £46,350, with the Government having pledged to increase this to £50,000 by 2020/21.
  • National Insurance Contributions (NICs) changes will be delayed by one year, in accordance with the Government’s previous announcement. Class 2 NICs and charging employers NICs on terminations payments over £30,000 will be abolished, coming into effect in April 2019.
  • Off-payroll working in the private sector consultation – following the Government’s decision in April 2017 to reform the off-payroll working rules (the IR35) for engagements in the public sector, the extension of reforms to the private sector has been considered as a next step. This would ensure that those who effectively work as employees are taxed as employees, even if they structure their work through a company. The Government has announced that there will be a consultation on this, drawing on experience of the public sector reforms and external research already commissioned by the Government. This research is due to be published in 2018.
  • From 6th April 2018, changes to the Save As You Earn scheme means that employees on maternity and parental leave will be able to take up to a 12 month pause (previously 6 months) from saving into their Save As You Earn employee share scheme.
  • From April 2018, there will be no benefit in kind charge on electricity that employers provide to charge employee’s electric vehicles.

For more information you can talk to Alison by clicking here.

Upcoming changes to the pensions auto-enrolment regime

The government has decided that the earnings trigger will remain at £10,000 for the tax year 2018/19, following its annual review of the automatic enrolment earnings trigger. Whilst that is staying the same, other parts of the pensions auto-enrolment regime will change. Here’s a run-down of the key points:

  • The qualifying earnings band is set to increase. This sets minimum contribution levels for money purchase pension schemes. The minimum of the band also confirms who can opt in to a workplace pension scheme if they earn less than the earnings trigger. The earnings band will continue to be aligned with National Insurance contribution rates for tax year 2018/19.
  • This means that the lower limit of the qualifying earnings band will increase from £5,876 to £6,032 and the upper limit of the qualifying earnings band will increase from £45,000 to £46,350.
  • From 6 April 2018, employers may be required to increase the amount of their contributions into their auto-enrolment pension scheme. Workers will have to make up whatever shortfall remains of the new total minimum contribution.
  • Currently, the employer’s minimum contribution is 1%. This will increase to 2% on 6 April 2018 and then to 3% on 6 April 2019.
  • The worker’s minimum contribution is currently 1%. This will increase to 3% on 6 April 2018 and then to 5% on 6 April 2019.
  • The total minimum contribution is currently 2% but will increase to 5% on 6 April 2018 and then to 8% on 6 April 2019.


  • If the employer pays the same as the minimum total contribution then the worker will not need to pay any contributions, unless the scheme rules require a contribution.
  • If the employer contributes more than their required minimum amount but less than the total minimum amount, then the worker only needs to make up the shortfall between the total minimum and the employer contribution.
  • All auto-enrolment pension schemes with contribution rates that would be below the minimum amount after the rate increases must apply the higher rates to remain a qualifying scheme.

During 2017, the Government conducted a review of automatic enrolment to consider how they could encourage more people to save into a workplace pension. You can read it here.

The report sets out the government’s plans to lower the age at which employers are required to auto-enrol employees into a workplace pension scheme from age 22 to 18.

Fortunately for employers, the government intends that these changes will not take effect until the mid-2020s.

We’ll keep you updated as the changes roll out. In the meantime, you can contact Alison for expert HR advice here.

Walking the catwalk between appropriateness and discrimination

We all know just how important image can be for those who work in the retail and consumer sector. From the look of the menus. to the layout of the room and the staff on a shop floor, each detail counts towards creating the overall brand of each establishment. It even affects the clothes employees wear to work.

Employees’ clothes will largely depend on the general atmosphere and ‘feel’ of the establishment – for example it’s not surprising to see checked-shirt-wearing hipsters working in trendy craft beer pubs, whilst smart clothing brands might expect their staff to reflect the sophistication in their work wear. But where do retailers draw the line between appropriateness and discrimination, and what does the law say on the issue?

In a recent example of what not to do, a London jazz club posted an online job advert looking for ‘extremely attractive’ staff to apply and requested that female applicants ‘must be comfortable wearing heels’. The Equality Act 2010 deems it unlawful for an employer to discriminate against someone because of their gender, so it seems clear that a dress code that places more demands on female employees than their male colleagues will be unlawful. But it’s important to note that this protection extends to the recruitment process.

Insisting on certain dress codes or requiring ‘physical attractiveness’ may leave employers exposed to potential discrimination claims. However, there is a distinct absence of cases where discriminatory dress codes have been challenged, leaving the law unclear.

When it comes to demands concerning appearance, expecting more from a person with a protected characteristic like gender, race, disability and age over another person who doesn’t have that protected characteristic is likely to amount to discrimination.

Although the law around dress code remains unclear, a recent case showed the consequences when companies fail to make reasonable adjustments around an employee’s disability. In a recent case, Abercrombie and Fitch claimed an employee went against their ‘look policy’ after she refused to remove a cardigan which covered her prosthetic arm. The shop then suggested she work in the stock room until the winter uniform came in. Following this Ambercrombie & Fitch was taken to an employment tribunal, and the employee was awarded over £9,000 in compensation from her former employer. This included an award of £7,800 for injury to feelings on the basis that it unlawfully harassed her and failed to make reasonable adjustments to its ‘look policy’, with respect to her disability.

The Government is drafting new guidance for employees around the issue, following campaigner Nicola Thorp’s petition against women being required to wear high heels at work. The petition gathered 152,420 signatures and prompted an inquiry, which heard evidence from a large number of women who recounted being forced to dye their hair, wear revealing uniforms, and constantly reapply makeup. The inquiry concluded that the Equality Act 2010 was not fully effective in protecting workers from discrimination. It is hoped that the new guidance   will provide clarity to employees and employers and help to clear up some of the confusion.

It’s clear here that there is a delicate balance in promoting a strong brand image whilst and discrimination. The consequences can be bad publicity and a loss of custom, as well as huge fines. If in doubt, you can contact Alison for expert advice here.

How to thrive at work – are you facing a ‘mental health challenge’ in your workplace?

This week ‘Thriving at Work’, an independent report commissioned by the Prime Minister, has been published. Co-authored by Paul Farmer (Chief Executive of mental health charity Mind) and Dennis Stevenson (former HBOS chair), the report sends a clear message to employers that a change in attitude is needed. Specifically, it calls on the Government to adopt 40 recommendations – including legislative reform.

What does the report say?

Claiming that the UK is ‘facing a mental health challenge at work, that is much larger than we had thought,’ the report points out that:

  • up to 300,000 people with long-term mental health issues leave their jobs every year (it is noted, however, that this statistic could include the same individual twice if they move around employment);
  • around 15% of employees have symptoms of an existing mental health condition; and
  • the UK economy spends around to £99bn every year due to employees that are ‘less productive, less effective, or off sick’ because of poor mental health.

Paul Farmer highlights the ‘crucial’ role that employers must play, with the report alluding to the fact that ’employers are perhaps able to have the greatest impact and scope to make an impact’, being in the unique position of being able to ‘create a positive and supportive workplace culture themselves free from stigma’.

As well as this, the report recommends that employers adopt what are described as ‘mental health core standards’ – a framework for a set of actions which can be implemented across all workplaces ‘quickly’ and at little or no cost. These mental health core standards emphasise the need for:

  • producing, implementing and communicating a mental health at work plan;
  • developing mental health awareness among employees;
  • encouraging open conversations about mental health and the support available;
  • ensuring employees have a healthy work-life balance and opportunities for development;
  • promoting effective people management through line managers and supervisors; and
  • routinely monitoring employee mental health and wellbeing.

Does the size of the company matter?

In short, no… but the report recommends an enhanced set of standards for employers with over 500 employees, as well as greater transparency and tailored in-house mental health support from employers who ‘can and should do more to lead the way.’

It also asks the Government to consider amending legislation and guidance, such as the Companies Act. This would encourage employers to report on workplace mental health through channels such as their website.

Employers will also want to keep a keen eye on recommendations in the report for the government to consider legislative change ‘to enhance protections for employees with mental health conditions, particularly fluctuating mental health conditions’ and calls for clarification of the role of employers in providing reasonable adjustments. The report does not limit the potential for legislative reform, recommending that the government considers ‘what more it can do to require employer compliance with existing equalities and employment laws’.

What about the self-employed?

There’s no denying that the working world is getting ever more flexible. That’s why it’s good to see this report consider the changing nature of many workplaces, with many people now employed by the so-called ‘gig economy.’ Because of this, the authors of the report have stated that they have sought to ensure that their recommendations can be adopted by all companies – regardless of the size or type of workplace. Similarly, they have considered the findings of the recent Taylor Review of Modern Working Practices, which states that there should be ‘good work’ for all. For online platforms with large reach amongst self-employed workers, the report recommends that they make connections with NHS-approved health and wellbeing support to provide advice that can be accessed by those working through their technology.

What else does the report recommend?

Whilst some of the report’s 40 recommendations are focused on the public sector, the vast majority is likely impact on all UK businesses in some way. In addition to those mentioned above, other recommendations include:

  • specific recommendations for industry groups, professional bodies, insurers and workplace regulators to all support employers on tackling workplace mental health;
  • calls on the Equality and Human Rights Commission to take a more proactive role in monitoring and taking action against employers that discriminate against individuals on mental health grounds, and the Health and Safety Executive to revise its guidance in order to raise employer awareness of their duty to assess and manage work-related mental ill-health;
  • the formation of a mental health online information portal, co-produced by the voluntary, public and private sectors, to promote best practice and enable employers of all sizes to implement the mental health core and enhanced standards;
  • calls on the government to align the fragmented occupational health and practical support available currently from Access to Work, the Fit for Work Service and other NHS services to create an integrated in-work support service to better support the needs of those with mental illness, and other physical health conditions and disabilities; as well as protecting and promoting the current tax relief for employers to invest in the mental health of employees whilst exploring alternatives to potentially incentivise employers to implement the mental health core standards; and
  • a recommendation for public bodies to encourage their suppliers to implement the mental health core standards.

What’s next?

Whilst the report is simply making ‘recommendations’ at present, employers need to start taking action. The Prime Minister has made it clear that mental health is a priority on her agenda and the government is said to be considering the legislative changes suggested.

Aside from the report, mental health is a rising issue  – and one that employers need to tackle right now. Recently, ACAS issued guidance on mental health in the workplace for employers and, as the Prime Minister has commented, ‘it is only by making this an everyday concern for everyone that we change the way we see mental illness, so that striving to improve your mental health – whether at work or at home – is seen as just as positive as improving our physical well-being’.

If you’re affected by any of the issues raised above, you can contact Alison for expert advice here.

EAT rules that Uber drivers are workers

The Employment Appeal Tribunal (EAT) has upheld a tribunal’s ruling that two Uber drivers were ‘workers’ and, therefore, entitled to worker benefits such as the National Minimum Wage and holiday pay.

The background

In UK law, ‘workers’ are entitled to a range of employment rights such as the national minimum wage, holiday pay and access to a pension scheme. Full employment rights, however, including statutory sick pay and protection against unfair dismissal, only apply to a category of workers normally referred to as ‘employees’.

For a non-employee to qualify as a ‘worker’ status there usually has to be a contract between the individual and the ‘employer,’ under which the individual undertakes to do work personally, and the ‘employer’ must not be a client or customer of a business operated by the individual.

How does this apply to Uber?

In this particular case, the EAT found that those conditions were satisfied. In particular, it found that the tribunal was entitled to reject the description of the relationship between Uber and the drivers in the written contractual documentation. Rather, the drivers were incorporated into Uber’s taxi business and subject to controls that pointed away from their working in business on their own account in a direct contractual relationship with the passenger each time they accepted a trip. The EAT confirmed that the tribunal had been entitled to consider the true agreement between the parties as not one in which Uber acted as the drivers’ agent.

But the EAT’s decision is unlikely to be the final one. It’s certain that Uber will look to bring a further appeal and it is likely that the case could go straight to the Supreme Court.

What can we learn from this?

The fact that the Uber drivers have won ‘worker’ status, however, does not mean that cases brought by others who work in the ‘gig economy’ will have the same success. In fact, the tribunal that originally heard the case said it did not doubt that Uber could have created a business model which did not involve the drivers having worker status. However, companies that rely on the ‘on demand’ freelance workforce will be keeping an eye on similar cases for any emerging trends that could impact their business model.

Particularly, these employers should review any possible risks of misclassifying the status of their workforce, including the affordability and practicability of paying statutory minimum wage, pension auto-enrolment and holiday pay entitlements.

Additionally, those businesses utilising IT platforms to exercise significant control over ‘on demand’ workers should be aware of the potential challenge in maintaining that such workers are genuinely self-employed, as opposed to one based on worker status (although it will always depend on the circumstances).

For more expert employment advice, you can contact Alison here.

Does long-term sick leave mean termination of employment is unfair?

The UK Court of Appeal has considered if an employer was discriminating against its employee who had been on long term sick leave for more than 12 months by terminating her employment.

The background

In the case O’Brien v. Bolton St Catherine’s Academy, a teacher employed by the Respondent school was assaulted by a pupil in March 2011. Consequently, the teacher suffered serious stress and was on sick leave for over a year.

The teacher attempted to return to work in December 2011, but she was unsuccessful. Following this she had not returned to work, and in January 2013 the school terminated her employment.

The teacher lodged an internal appeal, which was heard in April 2013. The teacher produced a ‘fit for work’ note, as well as additional medical evidence, at this hearing. However, the panel upheld the dismissal on the grounds that the medical evidence was inconsistent, the prognosis was not good, and her return was uncertain. As a result, the teacher claimed against the school for disability discrimination.

The outcome

The UK Court of Appeal considered it unreasonable that the school had disregard the teacher’s  medical evidence at the internal appeal hearing. Because the school already had endured the teacher’s absence for 15 months, it was considered unreasonable for the school not to wait a few months longer, so that the school could obtain and assess its own medical evidence.

The court felt that the school should consider and provide evidence of the impact of the teacher’s prolonged absence (which it had not done to this point). Therefore, the court felt, the school’s dismissal of the teacher constituted disability discrimination. The court did acknowledge that this was a borderline ruling due to length of absence, and the nature of evidence of when the teacher would be fit to return to work.

What can we learn from this?

Although employers are not expected to wait forever for an employee to recover from illness, there are a number of steps they should take to prevent any action being considered as unfair.

  • Written records of any disruption caused to the business of the employers arising from the employee’s absence should be documented.
  • Employers should assess any medical evidence produced by the sick employee carefully, including any new evidence which may be available during the dismissal process (including any internal appeal hearing).
  • Additionally, employers should consider the nature of the illness, the likely length of continuing absence, and the need of the employers to have done the work which the employee was engaged to do.

For more expert employment advice, you can contact Alison here.

Do you know how many holidays you have coming up?

We all deserve a break from our hard work now and again. Luckily, under The Working Time Regulations (2004), employees and workers are entitled to a minimum number of paid holidays per year. In England and Wales, this is set as 5.6 weeks per year and includes Bank/Public Holidays. This means that anyone working five days per week must receive 20 days of paid leave, plus the eight Bank/Public Holidays observed each calendar year. Part-time employees and workers receive a pro-rata allowance based on how many days they work per week.

But… wait… do we have a problem on the horizon?

Employers set the dates of the holiday year. For most this is 1st January to 31st December (although it’s up to you, as the employer).

However, if you decide to run your holiday year over more than one calendar year, the number of Bank/Public holidays might be higher or lower than eight and that can cause problems. Let’s look at an example.

  • Imagine an employer, which allows only the statutory minimum holiday allowance of 5.6 weeks, runs their holiday year between 1st April 2018 and 31st March 2019.
  • In that period, there will only be seven Bank/Public Holidays instead of eight, because Good Friday falls on 30th March.
  • In effect, there will be nine Bank/Public Holidays in the 2017/18 year, rather than eight.
  • This means that the employer might have to grant an additional day’s holiday during the 2018/19 year, so that they do not fall below the statutory minimum.
  • If the employer’s contract states the specific number of Bank/Public holidays that the employee is entitled to, e.g. ‘20 days holiday plus eight Bank/Public Holidays,’ then the employer might be able to deduct the additional 2017/18 one and add the 2018/19 one.
  • However, if the contract simply states ‘20 days holiday plus Bank/Public Holidays,’ as most do, the employer will have to add the 2018/19 one but won’t be able to deduct the 2017/18 one.
  • If the contract states 5.6 week including Bank/Public Holidays, then the employee would take eight Bank/Public Holidays plus 19 days paid holiday, meaning the employer would not fall below the statutory minimum.

Phew. That’s a lot of Bank/Public Holidays to keep track of!

So, what do you need to do?

You might not have realised the potential discrepancies caused by Bank/Public holidays.

  1. Check the exact wording of any contracts.
  2. Make any necessary plans concerning annual leave, now.
  3. It is up to you, as the employer, to ensure you are fulfilling your duties and to manage this through your holiday booking system.

For plain-English, expert advice on the matter, you can contact Alison here.

Government publishes parental bereavement leave bill

On 13th October 2017, the government published the Parental Bereavement (Pay and Leave) Bill. The bill allows two weeks’ paid leave for employed parents that have lost a child under 18, and is irrespective of the parents’ length of service.

As well as this, if the parent has had at least 26 weeks’ continuous service, they will be entitled to receive statutory parental bereavement pay. Employers can claim some, or all, of this cost from the government.

Currently, there is no legal requirement of employers to offer grieving parents time off work, although it is expected that many employers should be understanding to the parent’s difficult situation. The bill will go significantly further than most other countries in that it extends parental leave to not only the birth, but also the death, of a child.

The second reading of the bill in Parliament will take place on 20 October 2017, with a view to becoming law in 2020.

If you’re affected by issues raised above, or for expert employment advice, you can contact Alison here.

Foster carer to bring tribunal claim over workers’ rights

The Independent Worker’s Union of Great Britain (IWGB) has lodged a tribunal claim on behalf of a foster carer, Sarah Anderson, against Hampshire County Council. IWGB argued that Anderson is a worker and therefore entitled to rights such as holiday pay. The case has the potential to open the floodgates on thousands of similar claims by foster carers.

In the UK foster carers are not currently classified as either workers or employees, despite being paid by local councils, agencies or charities to look after children. General secretary of the IWGB Dr Jason Moyer-Lee said “this case is not about whether or not foster care is a form of work – that ship has sailed – this case is whether those workers should be entitled to the employment rights the rest of us take for granted.”

Anderson, who also chairs the IWGB’s foster care workers’ branch, added: “As foster care workers we are exploited, have no rights whatsoever and are treated as a disposable workforce, when society needs carers more than ever. We can’t advocate or look after our children properly if our rights aren’t recognised and protected.”

This isn’t the first case of its kind, and the IWGB has previously brought and won a case on behalf of two foster carers. In August, Glasgow Employment Tribunal ruled that James and Christine Johnstone were employees, with the judgement focusing on the level of control the council had over them.

In a previous case, however, there was a different outcome. The Court of Appeal ruled that, because the relationship between carers and their organisation is not based on a legal contract, foster carers could not be classified as workers. But in Anderson’s case, the IWGB are arguing that, under European law, such a contract is not required to establish an employment relationship.

The case comes amid intense scrutiny on new working relationships derived from the gig economy, and it’s perhaps not surprising that the light is being shone on a very fundamental relationship. The ruling is sure to be an important one in determining how foster carers are classified what rights they are entitled to, and could affect a large number of people –  according to The Fostering Network, there are almost 55,000 foster families across the UK caring for nearly 64,000 children. Hampshire County Council, however, told the BBC that the law is clear and foster carers are not workers.

We’ll keep you updated on how the case unfolds and what decision is made. In the meantime, you can contact Alison for HR advice here.

Lecturer made redundant amid role confusion wins £55,000

A former college lecturer has won £55,000 after being told by her employer that it no longer needed somebody to fill the role she was originally hired for. Miss Anderson worked for Shillington College from August 2011 until her dismissal in November 2016, the Central London Employment Tribunal heard.

The background

Shillington College, a graphic design college, has campuses in Australia, the UK and the US. The college employed Anderson initially as a lecturer at its Sydney campus before moving her to Melbourne in 2012. A year later Mr Shillington, the college’s founder and chief executive, approached Anderson and offered her the position of head of teaching in London. Anderson accepted, and was granted a Tier 2 visa. She agreed a salary of £50,000, along with a relocation package, with her new line manager Ms McHugh.

But towards the end of 2013, Shillington and McHugh informed Anderson that she would not be working as head of teaching, and would take the positon of senior lecturer. Anderson was disappointed with this decision, but agreed to the change.

In July 2015, Shillington emailed Anderson about her failure to meet deadlines and alleged decisions to discuss confidential matters with her colleagues, as well as her “poor decision-making.” Shillington also alleged that this was not the first time he had had to reprimand Anderson, and that he was “considering the college’s position” with regards to her role and placing her “on notice” following three warnings.

Later that month Shillington warned Anderson that he believed she had now reached the first stage of the college’s disciplinary procedure. He told Anderson that she could appeal this decision, but she did not.

In early September 2016, after being told that her role would be changing to focus on part-time teaching, Anderson became unhappy with the lack of progress she felt she was making in her career. In October 2016 Anderson raised grievance with McHugh, but this was rejected. Anderson received a letter ten days later notifying her that, because the college no longer required a head of teaching, she was at risk of redundancy.

On 10 November, Anderson raised a complaint about her possible redundancy. On 15 November she was informed that McHugh would hear her grievance outcome appeal, but this was rejected. Anderson was dismissed later that month.

The case

 The Central London Employment Tribunal allowed the claim for unfair dismissal, and the judge claimed that college could not “hide behind its own lack of paperwork or inconsistency” to blur events. Additionally, the tribunal agreed that Anderson had not in fact been fulfilling the role of head of teaching, and was instead working as a senior lecturer.

The tribunal also found that the college had failed Anderson’s inability to meet deadlines, which the tribunal determined was because of a combination of a heady workload and a large amount of students arriving at the college at once. It also stated that this had been exacerbated by both of Anderson’s being hospitalised at the time.

Judge Norris criticised the college particularly for it’s failure to follow disciplinary procedures, which did not make for a “professional or compliant way to go about HR administration”.

What’s next?

 The tribunal’s decision reinforces the need for employers to be able to clearly explain, by reference to contemporaneous documents, how and why an alleged redundancy situation arose, and to follow a full and proper procedure that demonstrates genuine efforts to avoid dismissal.

The ruling emphasises that tribunals do not take an employer’s assertion of a redundancy situation at face value, and will examine the relevant circumstances leading to the dismissal in detail if necessary.

For more HR expertise and advice you can contact Alison here.


Can an employee be too sick to take holiday?

Most of us have been there. You’re getting excited for your upcoming holiday, getting last minute details sorted and then suddenly a cough or cold comes on. Most of us power through and end up having a good time, but what happens if it’s worse and you come back to work feeling anything but refreshed? Should you be entitled to reschedule your holiday – or even claim sick pay?

The European Court of Justice has said in a recent case that a worker who falls ill or becomes incapacitated before a period of pre-arranged statutory holiday should have the right to reschedule their holiday to a later date. As well as this, the court also suggested that the same should apply to workers who become sick whilst on holiday – not just before. Although a contentious suggestion, the ECJ later confirmed this in Asociacion Nacional de Grandes Empresas de Distribucion v Federacion de Asociaciones Sindicales & Ors.

It’s important to note here that the ECJ ruling only applies to four weeks’ holiday, and not the full 5.6 weeks’ statutory holiday or any contractual amount in addition to this. On top of this, there could be argument about whether the UK’s own Working Time Regulations already provides this.

Employees are becoming more aware of their rights than ever, and holiday rights come high up on the list. The ECJ’s decisions mean employers can expect to receive claims from employees that they should be paid sick pay and allowed to re-schedule their holiday. But this can put employers in a difficult position. With the risk of false claims out there, how can you prove your suspicions that an employee didn’t spend their whole holiday holed up in the hotel room? How sick do you have to be before a day in bed counts as sick leave rather than annual leave?

Our advice

Employers have to adopt a clear and consistent approach to avoid any arguments of unfairness or discrimination. The employer is going to have a tricky decision to make – do you follow the ECJ decisions (and the UK decisions following them) and allow employees with legitimate claims to reschedule their leave, or do you adopt a riskier approach and try to stick to the letter of the Working Time Regulations?

Employers are also going to need to be robust in many of these situations – whilst you may choose to allow employers to reschedule their holidays you need to protect yourself from abuse or manipulation. The best way to go forward is with clear, concise policies and expected standards of behaviour – such as asking staff to report and notify sickness in the usual way (even when they’re on holiday), having return-to-work meetings and not being shy to ask necessary question or request medical evidence.

You should also be keeping up-to-date records of sickness absence to review closely, which can help to identify patterns of ‘holiday sickness’. A judicious checking of the employee’s social media posts may another option, and questions should be asked if posting about a big night out and is struck down with ‘stomach flu’. As well as this, you should make clear contracts and disciplinary policies, and the serious consequences for any dishonesty.

The important thing to remember is to be clear, concise and consistent in your approach, with support from your contract of employment and holiday, sickness, equal opportunities, disciplinary, social media and data protection policies.

For more information, you can contact Alison here. For help with your documentation, click here.

All change… again… for pensions

Just as everyone thought they were getting to know what the plan was for Auto Enrolment and pensions, the Pension Regulator instigated changes to their system for when an employer’s duty begins. With effect from 1 October 2017, employers legal duties begin on the day their first member of staff starts work.

In plain English this means: If you become an employer for the first time on or after 1 October 2017, you will, immediately, have legal duties for that new member of staff – and they apply from the first day the member of staff started working for you. When you are about to employ someone, for the first time, you need to get ready for automatic enrolment.

The Pensions Regulator has published a good guidance note on this here. For advice on this and any other related matters you can contact Alison, as well.

Watch your mouth – how employers can be discriminatory without realising it

Discrimination can come in many forms, but can be much subtler than you realise. When it comes to off-the-cuff comments, employers need to be careful of how things come across to other parties. This was the case with a recent claim made by a 59-year-old employee who was told she’d be more suited to a ‘traditional’ office. So where did the employer go wrong?

The background 

In February 2015 Ms Gomes (G) began working as an administration assistant for Henworth, which traded as Winkworth Estate Agents. G had been working for another agent in the Winkworth franchise since 2009, and had been transferred to Henworth from there.

A year later, in February 2016, G had a performance review with the company’s lettings director, who informed her that she needed to be more careful with her work. The meeting upset G, and she subsequently spoke to her line manager who spoke to Graham Gold, one of the directors.

Shortly after this G met with Gold, who told her that he felt she had not been paying attention to new methods of working, and had become preoccupied with an old piece of software that was now rarely used by the company.

A month later, in March 2016, Gold called G in for another meeting and told her: “This marriage isn’t working.” G claimed that, when asked about this comment, Gold said that G had typed and sent an erroneous letter to a solicitor, including referring to the deceased in question as ‘Mrs’ rather than ‘Mr’. Gold stated that, subsequent to this, a note would be placed on her performance record.

Additionally, Gold then told G she would be “better suited to a traditional estate agency” which G interpreted as Gold alluding to her being too old for that particular office. When G asked Gold what he meant by his comment, he suggested she “sleep on it and decide what you want to do,” which G interpreted as Gold recommending she consider leaving the company. According to G, at the time of the meeting she was planning to stay with the business until retiring at 65.

Not long after the meeting, G took sick leave for work-related stress and filed a grievance against Gold. The outcome of this grievance concluded that G should have more training opportunities, as well as stating that the original meeting with Gold had been carried out in an unsatisfactory manner. Gomes was not pleased with this outcome, however, and not only appealed but also tendered her resignation.

The tribunal allowed G’s claim for age discrimination, stating that the original comment ‘better suited to a traditional estate agency’ was unlikely to have been said to a younger employee, and was therefore a direct reference to her age. As well as this, the tribunal also allowed G’s claims for age-related harassment and constructive unfair dismissal.

The person put in charge of handling G’s grievance was also called into question, as they had compromised the meeting’s impartiality by allowing Gold to be present – despite Gold being the subject of the complaint.

In conclusion

This case is a harsh reminder that employers need to be careful with what they say to, or about, their employees. An age discrimination claim can arise from comments that allude to an employee’s age, even if it is not directly referred to – so think before you speak.

If you would like to discuss this within your organisation, please contact Alison.

Tribunal awards – calculating a week’s pay

In a recent case the Employment Appeals Tribunal ruled that a week’s pay should include employer pension contributions, rather than just basic pay, for calculation of compensation for claims under the Employment Rights Act 1996.

Let’s take a look at the facts.

Ms Drossou (D), who worked for the University of Sunderland, was dismissed on the grounds of an irretrievable breakdown in working relations, of which the University claimed D to be the main cause. Subsequently, D brought a claim of unfair dismissal that was eventually upheld by the Tribunal.

As a result, the EAT ordered compensation from the University, calculating a week’s pay by including the employer pension contributions. On the normal grounds that payments are not paid to the employee but into the pension fund, this decision went against the longstanding practice of excluding employer pension contributions from the calculations of a week’s pay.

The Tribunal felt that this deviation from standard practice was necessary, and said that the law under the Employment Rights Act 1996 (‘the ERA’) does not state that the amount payable by the employer has to be payable to the employee (i.e. it could be payable to a third party such as a pension provider). Additionally, the EAT stated that “remuneration” in the context of the ERA means a reward in return for services, and employer pension contributions are no less a reward for service than basic pay. The University was not satisfied with the ruling, but when it appealed to the EAT the Tribunal’s decision was upheld.

So, what does this mean for employers?

For the time being (at least until we see whether this decision is appealed) employers need to increase their calculations in accordance with the potential value of claims. Employers facing unfair dismissal claims need to be careful. If the claimant’s base salary is below £80,541 – the current statutory cap for unfair dismissal compensation – the calculation of a week’s pay becomes highly relevant. Where the employee earns less than the statutory cap on a week’s pay (currently £489), the basic award will also be increased – as well as all other awards based on the ERA definition such as the eight-weeks’ pay for a flexible working rules breach.

But, more importantly, the decision may impact protective awards. If employers fail to inform and consult under TUPE or, in a redundancy process, under the Trade Union and Labour Relations (Consolidation) Act 1992, then they could face large increases in the total compensation payable. The final amount will depend on the number of affected employees, the generosity of the pension provision and the size of protective award made up to the 13-week maximum. But if each employee has a 10% employer pension contribution and they all get an award of 13 weeks, then the total payable increases considerably.

For more information on this please contact Alison.

President of the Employment Tribunals announces increase in the Vento Bands

Employers have been hit with a timely reminder that they need to make sure they’re taking all possible steps to prevent workplace discrimination. After a recent consultation, the President of the Employment Tribunals has announced that, in the event that they suffer from workplace discrimination, employees can now receive higher compensation for ‘injury to feelings.’

So, what’s it all about?

Compensation for ‘injury to feelings’ is split into four categories – known as Vento Bands – and these vary depending on the discrimination’s severity. From 11 September 2017, the increased Vento bands will be:

  • £800 to £8,400 for less serious cases;
  • £8,400 to £25,200 for serious cases; and
  • £25,200 to £42,000 for the most serious cases.

As well as this, the Employment Tribunal can award over £42,000 in exceptional cases, but it’s still unclear as to how it defines this. Most important, however, is that compensation under this category could be unlimited.

Stick and stones may break your bones, but, in this case, words can definitely hurt. Employers need to stay up to date with their equal opportunities and anti-bullying and harassment policies – as well as implementing regular diversity training – if they’re going to avoid costly discrimination cases.

For more information or help with any Employment Tribunal matters please contact Alison.

Pensions update: Was a disabled employee treated unfavourably?

In Williams v The Trustees of Swansea University Pension & Assurance Scheme and another the Court of Appeal stated that a disabled employee was not treated unfavourably (and therefore discriminated against) when his enhanced pension on ill-health retirement was based on the salary he earned when working part time due to his disability, rather than his full time salary.


Mr Williams, the employee, suffered from Tourette’s syndrome, obsessive compulsive disorder and depression. Before eventually taking ill-health retirement (at 38) he reduced his hours with his employer, Swansea University, in order to better cope with his condition and his pay was reduced accordingly.

Mr Williams was allowed, by the University, to take his accrued pension benefits immediately and without any actuarial reduction for early receipt, rather than having to wait until his normal pension date nearly twenty-nine years later. This meant he was treated as though he had accrued nearly twenty nine years further pensionable service and his benefits were advanced.

Mr Williams brought a disability discrimination claim at the Tribunal under s 15 of the Equality Act 2010. Mr Williams argued that, by using his actual part time salary rather than a full time equivalent, the calculation of the enhancement to his benefits amounted to “unfavourable” treatment and therefore unlawful discrimination.

In the initial hearing the Tribunal upheld his claim. The University then successfully appealed to the EAT. Following this Mr Williams appealed to the Court of Appeal.

The Court of Appeal agreed with the EAT because:

  • under the pension scheme rules the only employees entitled to retire early and to receive an enhanced pension were those who retired through ill-health and who were necessarily disabled within the meaning of the Equality Act 2010;
  • Mr Williams had been treated advantageously in comparison to non-disabled colleagues and there is no authority for the proposition that a disability discrimination claim can succeed simply because an individual thinks he should have been treated better;
  • that Mr Williams was working part-time hours because of his disability could not be enough to require the employer to justify the treatment; and
  • there is no authority for the proposition that a disabled person who is treated advantageously because of their disability, but not as advantageously as a person with a different disability, has a valid claim that they have been treated “unfavourably”.

This decision confirms that, even if it could have been more advantageous, treatment that is advantageous does not amount to unfavourable treatment.

Update – Parental Bereavement Leave

On 19 July 2017 the Parental Bereavement (Pay and Leave) Bill was introduced to Parliament. The Bill is expected to have a second reading in October with the hope that it will become law in 2018.


  • This aims to establish a new right for employed parents to paid leave to grieve on the death of their child.
  • It is likely that the amount of leave will be at least two weeks and attract the same rate of pay as other types of family leave such as maternity, adoption paternity and shared parental leave. This is currently the lower of 90% of an employee’s gross weekly earnings and £140.98 per week.
  • At present (except in relation to stillbirth or miscarriages in respect of which maternity or paternity leave may still apply), the law only allows for “reasonable” unpaid time off to deal with an emergency relating to dependants, including his or her death, and it is down to each employer to determine what is ”reasonable” in the circumstances.

ACAS has published a good practice guide on Dealing with Bereavement in the Workplace (available here).

Was the suspension of a teacher a neutral act and, if not, did it amount to a breach of the implied term of mutual trust and confidence?

The High Court case of Agoreyo v London Borough of Lambeth, available here, is clear on this matter.  In August 2017 they set out that suspension is not a neutral act and an improper suspension can amount to a breach of the above implied term. They also said that a breach could amount to a ‘repudiatory breach’, i.e. be sufficient in itself to destroy the employment relationship and entitle the employee to bring a claim.

The background

Mrs Agoreyo (who was the employee) worked as a primary school teacher for the London Borough of Lambeth.  A number of her pupils had significant behavioural issues and she had made numerous requests to the school for additional support.  However, before all the measures could be put in place Mrs Agoreyo was suspended. This followed three incidents where she had to use a degree of force to get two of these pupils to behave. The allegations suggested that the degree of force used went beyond those considered reasonable under the Education and Inspections Act 2006.

The suspension letter said:

  • the employee was suspended on normal pay;
  • suspension was a precautionary act pending a full investigation into allegations, during which the employee would be given full opportunity to provide her account of events; and
  • the suspension was a “neutral action and not a disciplinary action” and was to “allow the investigation to be conducted fairly”.

However, what sets this case apart, was that, before the decision to suspend, the employee was not asked for her comments on the allegations. Similarly, her employer failed to suggest that it had considered other alternatives to suspension.

Mrs Agoreyo resigned and brought a claim against the employer in the County Court for breach of contract. She argued that suspension was not reasonable or necessary.

Whilst the initial County Court hearing felt that London Borough of Lambeth was bound to suspend Mrs Agoreyo, after receiving reports of the allegations against her, and had “reasonable and proper cause” (to protect the children), Mrs Agoreyo appealed to the High Court.

The High Court disagreed. They felt that the employer was not bound to suspend Mrs Agoreyo and did not feel that it was obvious that there were no other alternatives. Furthermore, the employer had clearly stated in its suspension letter that its purpose was not to protect children but to ensure a fair investigation.

The High Court found that:

  • there was no evidence of any attempt to understand the employee’s version of events prior to the decision to suspend;
  • there was no evidence of any consideration of alternatives to suspension; and
  • the letter of suspension did not explain why an investigation could not be conducted fairly without the need for suspension

As a result they concluded that, given the potential stigma associated with suspension and the potential impact on future career prospects, suspension was not a neutral act, at least in the context of a qualified professional in a vocation, such as a teacher.

The suspension amounted to a breach of the implied duty of trust and confidence.

Employers must remember that even (in cases where the conduct is extremely serious, suspension must never be a knee-jerk reaction and the employer must carefully and pro-actively consider what the true purpose of a suspension would be and whether there might be any alternative.

Our advice is always to contact a qualified professional to help support and guide through disciplinary investigations and matters. You can contact Alison here.





Holiday Pay & Voluntary Overtime

Back in September 2016 the case of Brettle v Dudley Metropolitan Borough Council decided that voluntary overtime payments should be included in calculating holiday pay, provided that overtime is worked with “sufficient regularity” to constitute “normal pay”.

In July 2017, the Employment Appeal Tribunal upheld this decision and set out that payments for normally worked, voluntary, overtime must be included when calculating holiday pay for the first four weeks of holiday.  The case that upheld this was Dudley Metropolitan Borough Council v Willetts and Others, available here.

In this case the EAT explained that, given holiday pay needs to correspond with “normal remuneration”, any voluntary overtime payments that are paid over a sufficient period of time on a regular basis fall within this definition.

This did leave some questions open, however.  For example, the EAT offered little guidance on the level of regularity or frequency required for a payment to qualify as “normal remuneration”.  We can only ‘watch this space’ but we’ll post a longer summary in a few weeks… so watch this space.

The Supreme Court has ruled that employment tribunal fees are unlawful

The government suffered a heavy defeat on 26th July after the Supreme Court ruled that employment tribunal fees are unlawful and the government will now have to repay up to £32m to claimants, relating to claims dating back to April 2013.

Brought forward by the Unison union Lord Reed, the judgment said that the fees were unlawful because of their effects on access to justice. Introduced in 2013 and costing between £390 and £1200, the fees have been said to prevent access to justice for workers unable to fund their case.

“The making of the Fees Order was not a lawful exercise of those powers, because the prescribed fees interfere unjustifiably with the right of access to justice under both the common law and EU law, frustrate the operation of Parliamentary legislation granting employment rights, and discriminate unlawfully against women and other protected groups.”

While the fees were brought in by the government to reduce the number of malicious and weak cases, after 3 years there had been a 79% reduction in cases brought forward.

Discrimination cases cost more for claimants because of the complexity and time hearings took. The Supreme Court found this was indirectly discriminatory because a higher proportion of women would bring discrimination cases.

Unison general secretary Dave Prentis has said: “This is absolutely a tremendous victory, it’s probably the biggest victory of employment rights in this country.”

So what now?

In order to deal with this massive backlog of repayment and claims the Presidents of the Employment Tribunals have issued Case Management Orders.

The Order states that all cases and applications arising from the Unison case, or applications for reimbursement of fees, shall be made in accordance with administrative arrangements to be announced by the Ministry of Justice and HMCTS shortly… We wait to see what happens next!

How can employers spend their apprenticeship levy fund? A guide.

The apprenticeship levy has been a hot topic in the world of HR for the past few years. Naturally employers have been asking a lot of questions related to its implementation and restrictions. One increasingly common question asked is ‘what will employers be able to spend apprenticeship levy on?’

Levy-paying employers are able to create an account on the apprenticeship service to receive levy funds for them to spend on apprenticeships, manage their apprentices, pay their training providers and stop or pause to their training providers.

What can the apprenticeship levy fund be spent on?

Once they have access to the apprenticeship service account, employers can then use their funds to pay for apprenticeship training and assessment for apprentices that work at least 50% of the time in England. Employers can only spend up to the funding band maximum for that apprenticeship. If costs of training and assessment go over the funding band maximum, any difference in price must come from the employer’s budget.

What can the apprenticeship levy NOT be spent on?

The apprenticeship levy cannot be used to fund other costs of apprenticeships or other training costs. Government guidance says it cannot be spent on:

Employers can spend apprenticeship levy funding on apprenticeship training and end-point assessment (the assessment of apprentices by an independent organisation, required before they can complete the apprenticeship), either under an apprenticeship standard or an apprenticeship framework. The funding can be spent only with an approved training provider or an approved assessment organisation.

Employers cannot use the apprenticeship levy to fund other costs of apprenticeships or other training costs. Government guidance states that the levy cannot be spent on:

  • wages;
  • statutory licences to practice;
  • travel and subsidiary costs;
  • managerial costs;
  • traineeships;
  • work placement programmes; or
  • the cost of setting up an apprenticeship programme.

In the case where apprentices have already been accepted onto an apprenticeship programme before the new system in England came into effect (1 May 2017), employers cannot use the levy to fund them.

In a nutshell

Employers can use the above list as a rough guide to what the apprenticeship levy fund can and cannot be used for. More details for specific circumstances can be found within your apprenticeship service account and the Government have produced guides to learn more about the levy here.

For more information, visit or contact Alison Benney:

Tel: 01803 469466 Mobile: 07967221595

Automatic enrolment – what do Business Advisers need to do?

The latest Compliance and Enforcement bulletin released by The Pensions Regulator has highlighted their concerns with the number of employers who are ignoring workplace pension duties, putting them at risk of being fined and prosecuted for failure to comply.

Their latest data shows that their use of fixed penalty notices (FPNs) and escalating penalty notices (EPNs) has increased. The Pensions Regulator now publishes the details of those who have paid their EPNs but remain non-compliant on their website. They are also publishing the details of those who failed to pay their EPN and have been made subject to a court order. This public reporting of businesses failing to pay their notices is a huge incentive for all advisors to stay on top of their workplace pension duties.

What is automatic enrolment?

Every employer with at least one member of staff has a duty to enrol those who are eligible into a workplace pension scheme and contributing towards it. It is automatic for staff but not for employers.

What do Business Advisers need to do?

An adviser’s role depends on the type of adviser they are. They may be expected to simply provide advice or may offer a full automatic enrolment service. When it comes to legal responsibility for automatic enrolment, the legalities lie with employers. However it is likely that they will turn to Business Advisers for help. An adviser who is nominated as a client’s additional contact to The Pensions Regulator will receive regular emails with the latest information and deadlines required of your contact.

Who has to be compliant?

Accountants and Business Advisers should encourage all clients, including smaller employers and non-payroll, to comply with their new employer duties. If a client has at least one member of staff who is paid via a PAYE scheme, automatic enrolment duties apply. There is a duties checker tool available for clients to work out how automatic enrolment applies to them, available here.

What needs to be done to set up automatic enrolment?

  • 12 months before staging : checking your client’s staging date, being a point of contact and checking who to enrol.
  • 6 months before staging : working out your client’s costs, checking records and payroll processes, choosing a pension scheme.
  • On your client’s staging date : assessing and enrolling staff, writing to your client’s staff, knowing your client’s ongoing duties.
  • After your client’s staging date : completing the declaration of compliance.

In a nutshell

A Business Adviser can offer as much or as little support for clients organising their workplace pension scheme enrolment. However it is very likely that they will be asked to provide help and some services. It is important to keep up to date with The Pensions Regulator deadlines and ensure you are able to offer advice regarding automatic enrolment.

For more information, visit or contact Alison Benney:

Tel: 01803 469466 Mobile: 07967221595

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