Brexit

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.

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Is 2017 going to be the Year of the Worker?

Last year we saw a lot of gig economy tribunal cases hitting the headlines and we’re expecting to see a lot more news about casual workers and employment status throughout the rest of 2017. In an ongoing battle between the gig economy and the law, it’s the workers who are winning.

What happens next?

A lot of reviews and committees are focusing their attention on the gig economy in an attempt to ensure that employment law is up-to-date with modern-working practices. The definition of a worker has been hazy and in order to determine the working status of an individual, differentiations need to be made clearer. In the gig economy it can be very difficult to discern where any given working arrangement fits with the law.

As the UK leaves the EU, the topic of workers’ rights is likely to stay in conversation, particularly as it was one of the first matters discussed regarding the post-Brexit legal landscape. It’s a waiting game for legislation at the moment, but in the meantime employers need to ensure they’re looking for the right things.

What do employers need to do?

As the issues of working rights are likely to hit the headlines again this year, the publicity may lead to an increased number of claims. To be prepared, employers need to ensure that their service relationships have been defined properly from the very beginning. Every individual should be assessed and the employer needs to think about their status. Are they definitely self-employed? If so, organise the arrangements and documents to support it. If they are a worker, arrangements must be in place to cater for their paid holidays, working time law protections, the national minimum wage, amongst others.

In a nutshell…

The gig economy and workers’ rights are going to continue to be hot topics in 2017. It’s important that employers stay ahead of the game and set their definitions, and arrangements, in stone before further legislation comes into place later in the year.

For more information, visit http://79.170.40.162/enlightenhr.com or contact Alison Benney:

alison@enlightenhr.com

Tel: 01803 469466

Mobile: 07967221595

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Holiday Pay : Including commission in calculations

There has been some speculation about holiday pay and how it should be calculated with results-based commission. A recent case has helped shed some light on what EU regulations are currently in place and how they may, or may not, change during Brexit.

The case of British Gas v Lock

Mr Lock, a salesman for British Gas, was paid a monthly commission on top of his basic salary that fluctuated based on his sales. When absent on holiday leave, his pay did not reflect any of the commission he would have earned. He issued a claim that British Gas had failed to properly calculate his holiday pay and owed him money.

The European Court of Justice agreed with the ET that since the commission is directly linked to the work Mr Lock carries out, it should be taken into account when calculating the amount owed for holiday pay. The case was returned to the ET for this ruling to then be applied in UK law. For this to happen, the ET needed to add an extra subsection to the Working Time Regulations 1988

What does this mean for the future?

This case has shown that representative results-based commission and non-guaranteed overtime must be taken into account in the calculation of holiday pay for the first 4 weeks of holiday under the Working Time Regulations. However, the issue of how to calculate this has still been left unanswered.

The government will be, in theory, able to change this EU requirement law after the UK leaves the EU. But, it is likely that this holiday pay calculation will stay in place due to Theresa May’s confirmation that workers’ rights will not be diminished under a future Tory government.

In a nutshell…

Currently when calculating an employee’s holiday pay entitlement, regarding the first four weeks, results-based commission must be included in employer calculations. Moving forwards, employees can expect these rules to stay. How this commission pay entitlement will be calculated, however, is something we are still awaiting guidance on.

For more information, visit http://79.170.40.162/enlightenhr.com or contact Alison Benney:

alison@enlightenhr.com

Tel: 01803 469466

Mobile: 07967221595

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Preparing for Brexit in HR

With our news feeds being filled once again with the results of Brexit, employers continue to face uncertainty about the long-term affects that the Brexit vote is going to have on UK employment laws. It’s becoming more important than ever for employers to start thinking ahead and preparing themselves for UK’s departure from the EU.

So what steps do employers need to take?

The first step that employers need to take, or should have already taken, is to communicate with their workforce. Although the implications of Brexit are still, to an extent, uncertain, it’s crucial that employee communications take place to reassure workers that the organisation is taking any concerns about Brexit seriously. A communication strategy should be put in place to provide workers with updates on Brexit as and when they occur. All line managers should also be equipped with the necessary information do deal with staff questions and concerns.

Assessing and supporting EEA staff

Employers should also take this time to assess their staff composition and recruitment needs. They should look at the number of European Economic Area (EEA) staff in the UK and their roles. Employers need to think about the need for these roles of the coming years and how they will be filled if mobility rules are changed for EEA workers. In some cases, EEA staff may feel vulnerable following the Brexit vote. Employers should provide a range of support measures to these employees, possibly through offering specialist immigration advice and support as a retention measure.

Unfortunately, the Brexit results have resulted in a rise in hate crime reports. Employers should stay alert for reports of these in the workplace and promptly address any incidents that may occur. Employers may also wish to take this time to remind employees of their workplace discrimination and harassment policies.

Don’t make hasty recruitment decisions

Employers must not consider a job applicant’s EEA nationality during any recruitment and hiring process. If an employer unfavourably treats a job candidate because of his or her EEA nationality, this action could be considered discriminatory. Current employees should also not be treated unfavourably due to their EEA nationality in any circumstances, for example when considering contract renewals, promotions or assignments.

For more information, visit http://79.170.40.162/enlightenhr.com or contact Alison Benney:

alison@enlightenhr.com

Tel: 01803 469466

Mobile: 07967221595

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