Tribunal

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.

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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.

 

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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.

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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.

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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.

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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.

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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.

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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.

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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.

Background

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.

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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!

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Five key employment law changes in April 2017

April is a busy month for employment law with several changes coming into force over the next few weeks. We’ve put together a summary of five of the main things to look out for this month and how they will affect employers.

Gender pay gap reporting rules come into force

The Gender Pay Gap guidance is a huge topic this month and is one that we will dedicate a separate blog to but in summary, every year large employers will have to report data about their gender pay gap, including any bonus payments. All details about the proportion of male and female employees in different pay quartiles and those who receive bonuses. For more information you can read our blog here. [Link to blog]

Apprenticeship levy is introduced

At the beginning of April the apprenticeship levy cam into force, meaning that employers with a paybill or more than £3 million will pay the levy to fund apprenticeship training. Employers in England that pay the levy will then be able to access the funding through a digital service, currently aiming to be in operation from May. Employers that do not pay the levy will also be able to access funding for apprenticeships and while the levy applies across the UK, different arrangements will exist of how apprenticeship funding will work in Scotland, Wales and Northern Ireland.

Immigration skills charge

Any employer that sponsors skilled workers under tier 2 of the immigration points-based system will have to pay a levy of £1,000 per certificate of sponsorship per year. This levy will come into force for each worker under tier 2, although there are some exemptions.

National minimum wage increases

This month the national minimum wage will increase, despite a relatively recent increase in October last year. It is happening now so that the timing of the annual increase in the national living wage rate for workers aged 25 or over will fit with the other national minimum wage rates. From this month the rate for workers aged 25 and over increases from £7.20 to £7.50.

Statutory family-related pay and sick pay rates increase

Also happening this month is an increase in the weekly rate of statutory maternity, paternity, adoption and shared parental pay. This is moving up to £140.98 for pay weeks commencing on or after 2nd April 2017. At this time the weekly rate of statutory sick pay will increase to £89.35 from 6th April 2017.

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

alison@enlightenhr.com

Tel: 01803 469466

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Religious Festival holiday rejection was not considered discriminatory

The EAT recently upheld a tribunal’s rejection of a claim that a Roman Catholic was not discriminated against when he was not allowed to take five weeks’ leave for a religious festival.

Gareddu v London Underground Ltd – What happened?

For a number of years Mr Gareddu, a Roman Catholic from Sardinia, had been allowed by his employer, London Underground, to take five consecutive weeks’ annual leave in order to visit his family and attend religious festivals. When his manager changed in 2015, his application for the five weeks’ leave was rejected and he was told he could take a maximum of three weeks’ time off to attend the festivals.

On learning that his application had been rejected, Mr Garredu raised a grievance with his employer, arguing that it was religious discrimination. This grievance was rejected on the grounds that the London Underground did not believe that his attendance was required in Sardinia for five weeks every summer. The employer argued that attending the festivals was a personal choice, rather than a strict requirement of faith.

The EAT agreed, believing his motivation was to spend time with his family, not to attend the festivals. They proved this by finding evidence that he attended only nine of a possible 17 religious events.

What was the verdict?

According to the EAT, the tribunal “simply assessed whether or not the asserted requirement to attend the series of festivals for a five-week period was genuine” and then “the tribunal found that the true or genuine reason for wanting a five-week period was not the claimant’s religious beliefs or their manifestation but was his wish to be with his family.” In conclusion, it was decided that the grounds for the annual leave rejection were not discriminatory.

In a nutshell…

If an employee requests extended annual leave on the basis of religious commitment and it is proven that they have alternative, more dominant, motives for the leave, it may not be seen as religious discrimination for the leave to be rejected.

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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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:

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5 of the biggest employment law cases in 2016

There have been many key judgements made in employment law over the past 12 months including cases on: employment status in the gig economy, childcare vouchers during maternity leave, enhanced shared parental pay, provision of rest breaks and the Acas code on disciple and grievance. But what were the biggest cases in 2016? We’ve highlighted five of them in a nutshell….

Uber: Employment Status in the Gig Economy

The first, in what is likely to be a string, of cases dealing with employment status in the gig economy, Aslam and others v Uber BV and others was one of the most talked about employment law cases of 2016. The successful bid by Uber drivers to be recognised as ‘workers’ and not self-employed meant that they are now able to access some employment rights such as to receive the national minimum wage and be paid annual leave. Uber was severely criticised by the employment tribunal for covering the truth about its relationship with its drivers.

Peninsula Business Services Ltd: Childcare vouchers during maternity leave

A controversial decision made by the Employment Appeal Tribunal (EAT) in the Peninsula Business Services Ltd vs Donaldson case led to it concluding that the childcare vouchers provided by way of salary sacrifice should be treated as remuneration NOT non-cash benefit. It decided that the phrases “salary sacrifice” was confusing and said that “it is in reality not a sacrifice but a diversion of salary, which the employee has earned but which is redirected prior to it being placed in the employee’s pay packet, in order to purchase vouchers.” Much to the surprise of many, the HMRC has written to the Childcare Vouchers Providers Association to say that this judgement of the EAT means that employers are no longer legally required to provide childcare vouchers during an employee’s maternity or adoption leave. Also, if they are to remove vouchers during maternity leave it will no longer be sex discrimination.

Abellio London Ltd: Provision of rest breaks

Earlier in the year a case asked is a worker required to ask for rest breaks, and be refused, before he or she can bring a working time claim in the employment tribunal? The Grange v Abellio London Ltd case brought into question the scope of the right for workers to take a rest break. The EAT stated that employers have an active duty to ensure that workers are able to take a 20-minute uninterrupted rest break for every six hours worked. According to the EAT, an employee who accepts the lack of rest break reluctantly, but doesn’t protest, is still in a position to bring a working time claim to the tribunal.

National Rail: Policy on enhanced shared parental pay

An employment tribunal awarded £28,321 to a National Rail employee (Snell) over his employer’s policy of giving a period of full pay to mothers and primary adopters on shared parental leave, but only paying statutory shared parental pay to partners and secondary adopters. It has lead to questions about whether it is discriminatory to pay a male parent taking shared parental leave less than a female parent taking maternity leave. In the Snell vs National Rail case, the decision made by the ET in this case shows that the Tribunal do not look favourably on male and female parents being paid differently during shared parent leave. Read more here.

Phoenix House Ltd: Acas code of discipline and grievance

In the Pheonix House Ltd v Stockman and another case this year, controversy was caused when the EAT held that employers do not have to follow the Acas code where there is ‘some other’ substantial reason for dismissal. This conflicted with an earlier EAT decision in the Lund v St Edmund’s School, Canterbury case. This conflict suggests that there will soon be many other cases on the application of the Acas code where there has been a breakdown in trust and confidence.

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

alison@enlightenhr.com

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Employment Law Legislations – December 2016

As 2016 comes to a close, December is a busy month for employment law changes. Over the coming few weeks, there are five main employment law legislations due to be implemented, we’ve summarised them below.

Upper age limit for jury service raised

From 1st December 2016, the upper age limit for people in England and Wales to sit as jurors will increased from 70 to 75. The new measure is contain in section 68 of the Criminal Justice and Courts Act 2015.

Immigration Act 2016: employers that employ illegal workers face business closure

After 1st December 2016, employers will face temporary or continued closure if they employ foreign workers illegally. It is commenced by the Immigration Act 2016 (Commencement No.2 and Transitional Provisions) Regulations 2016 (SI 2016/1037). A chief immigration officer can issue an employer with a closure notice that will prevent access to its premises (except for a person who lives there) for a maximum period of 48 hours, where he or she reasonably suspects that the employer is employing foreign workers illegally and the employer has previously committed certain specified offences of illegal working. Read more here.

Act of Sederunt (Fitness Assessment Tribunal Rules) 2016 comes into force

From 1st December 2016, the Act of Sederunt (Fitness Assessment Tribunal Rules) 2016 provides the process of investigating the fitness of a member of the Scottish tribunals. Read more here.

Scotland bans smoking in private cars carrying a person aged under 18

On 5th December 2016, The Smoking Prohibition (Children in Motor Vehicles) (Scotland) Act 2016 (Commencement) Regulations 2016 (SSI 2016/259) will introduce a ban on smoking in private cars carrying a person aged under 18, with the aim of protecting children from the health risks associated with exposure to second hand smoke in vehicles. The new law means that it is a criminal offence in Scotland for an adult to smoke in a private vehicle when there is also a person aged under 18 and the vehicle is in a public place.

The Income Tax (Pay As You Earn) (Amendment No.3) Regulations 2016 come into force

From 19th December 2016, the Income Tax (Pay As You Earn) (Amendment No.3 Regulations 2016 (SI 2016/1137) will amend the Income Tax (Pay As You Earn) Regulations 2003 (SI 2003/2682) to extend voluntary payrolling to enable employers to payroll non-cash vouchers and credit tokens provided to employees from 6th April 2017.

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

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Sex discrimination: policy on enhanced shared parental pay

Snell vs National Rail ETS/4100178/2016

An employment tribunal awarded £28,321 to a National Rail employee (Snell) over his employer’s policy of giving a period of full pay to mothers and primary adopters on shared parental leave, but only paying statutory shared parental pay to partners and secondary adopters. It has lead to questions about whether it is discriminatory to pay a male parent taking shared parental leave less than a female parent taking maternity leave.

What is Shared Parental Leave?

Shared Parental Leave (SPL) was introduced in April 2015 to allow mothers to share their maternity leave with their partners. This Shared Parental Leave can apply to same-sex couples, couples who are adopting, co-habiting couples, and couples bringing up a child together even if the child is from a previous relationship.

How is Shared Parental Leave being paid?

It has been found that not many partners have opted to take up Shared Parental Leave. It has been suggested that this is because many employers are paying fathers taking Shared Parental Leave statutory parental pay. This is in comparison to many mothers who are receiving enhanced maternity pay.

Is it discriminatory for male parents taking SPL to receive less than a female parent?

In the case of Snell vs National Rail, both Mr (Claimant) and Mrs Snell were working for National Rail, the Respondent. They opted to take Shared Parental Leave, Mr Snell taking 12 weeks SPL and his wife taking 27 weeks. They were told that Mrs Snell would receive full pay during her SPL but Mr Snell, the Claimant, would only receive statutory parental play. He raised a grievance stating his lower payment was sex discrimination. National Rail rejected this.

The Claimant then brought the indirect sex discrimination claim to the Employment Tribunal. The ET agreed that the payout was discriminatory and awarded Mr Snell over £28,000. National Rail has now changed its policy so that both men and women receive statutory pay.

In a nutshell

The decision made by the ET in this case shows that the Tribunal do not look favourably on male and female parents being paid differently during shared parent leave. Although it has not reached the EAT, it is worth considering your policy as the payout to Snell in this case was high and discrimination awards are not capped.

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

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European court rules that bosses can read workers’ private messages

The recent European Court of Human Rights ruling that states that an organisation that read a worker’s personal messages sent while he was at work was within its rights.

Can an employee be dismissed for sending private messages at work?

The engineer was dismissed for sending personal emails during his working hours and claimed that his employer had violated his right to correspondence and was in breach of the Constitution and Criminal Code by accessing his private messages. His complaint was dismissed on the grounds that his employer had complied with the relevant dismissal proceedings and that the complainant had previously been informed of company regulations.

He continued to appeal on the basis that his emails were protected by Article 8. Article 8 states that there is a right to respect private and family life, the home and correspondence. However the Court of Appeal decided that the employer had been reasonable.

Why do employers need to be careful?

Since the court ruling there has been an emphasis placed on ensuring that employers do not take this as an opportunity to regularly snoop on employees. Employers need to respect that employees may reply to work emails on a personal device outside of work hours so it should be considered fair that, on occasion, they may want to engage in personal conversations during the working day on a work device.

How can you prevent this happening at work?

The ruling has been an eye opener for employers and employees. Ensure that your employees are well aware of the company regulations regarding sending personal messages on a work device and do not encourage staff ‘snooping’ as a regular protocol. Make your staff aware that any messages sent on a work device are liable to be checked at any occasion if they employer deems fit.

For professional advice on this or any other HR and Employment Law matters, please contact Alison here.

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What can you do if an employee refuses to sign a contract?

Sometimes an employee taking their time to return a contract is simply a case of forgetfulness but at others it may be an attempt to hold off being bound by the terms. If a new or amended contract is not being returned, what can an employer do?

Implied acceptance

If an employee does not object to the new terms and conditions of the contract and continues to work with the new terms, it could be deemed that they have accepted the contract. The longer that they continue to work without complaint, the more likely it is that the principle of implied acceptance will apply. However, it is not recommended that implied acceptance should be relied upon. An employment tribunal may not feel the same in different circumstances. Implied acceptance certainly should not be used instead of employers providing contracts or written statements of particulars.

So what can be done?

Employers can wait up to 2 months before issuing minimum statutory information, but the right to a statement of minimum written particulars accrues after 1 month. If an employee leaves in their second month of work, they can still ask for a copy of their written particulars. Employers that fail to provide the paperwork within the time limit can face fines of up to £1800 per employee.

In a nutshell

If an employee is refusing to sign a contract it is not recommended that the employer follow the principle of implied acceptance. Employees must receive a full contract of employment before they start work and amendments must be confirmed by a new signed contract.

For more information on this and any other HR matters please contact Alison directly.

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Permanent employees can take priority over agency workers for jobs

The Agency Workers Regulations 2010, specifically Article 6, state that temporary agency workers are entitled to equal treatment as permanent employees as regards to the fundamental terms of employment. Article 6 also requires agency workers to be informed of any internal vacancies at their current place of work to give them the same opportunity as other workers. However, a recent Employment Appeal Tribunal case asked whether this Article is concerned only with the provision of information or, whether in fact, it gives temporary agency workers an equal footing with permanent employees when applying for internal vacancies.

Coles vs. Ministry of Defence

The MoD employed both permanent and temporary agency workers at its organisation in Wales. When restructuring, it placed 530 permanent employees in a redeployment pool. While they advertised internal vacancies to all workers, permanent employees were given priority consideration. Coles, a temporary agency worker, claimed that the prioritisation denied him the opportunity to apply and that this was a breach of Article 6.

Tribunal and EAT

The employment tribunal disagreed and Coles appealed. The Employment Appeal Tribunal also disagreed and his appeal was dismissed. They argued that Article 6 only refers to providing equal information about vacancies, it does not prevent permanent employees from being given preferential treatment.

“Same Opportunity”

The biggest confusion in this argument is in the interpretation of staff being given the ‘same opportunity’. The EAT have stated clearly that this means that the information relating to a vacancy must be given to temporary agency workers and permanent workers in an equally useful form at an equally useful time. Article 6 does not prevent any priority consideration or alter the terms on which employment might be offered.

In a nutshell

Provided that employers give ALL workers the same information about internal vacancies in an equal fashion, they are within their rights to prioritise vacancies for existing permanent employees.

For more information about this or any other HR matter please contact Alison directly.

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Accidental oversight – when do employees have a right to a rehearing?

In a circumstance where an employee is required to attend a disciplinary hearing, all evidence that is being used against them must be given to said employee. If some of the evidence is missed out by accident, is it obligatory to hold a rehearing?

What does the ACAS code state?

According to the ACAS Code of Practice on Disciplinary and Grievance Procedures, all employees subject to disciplinary proceedings must receive, in writing, all of the relevant information about their alleged misconduct and all of the possible outcomes of the hearing. Once they have received this they must then be given the opportunity to provide their answers and any defence.

What is meant by relevant information?

Before the disciplinary hearing, employees must be given:

  •             Full details of the specific allegations, not just general observations.
  •             Copies of all documentary evidence and witness statements.

Mistakes happen and sometimes information is withheld by accident. If this occurs, does an employee need a brand new hearing? Does the hearing have to start again from the beginning? According to the Employment Appeal Tribunal’s (EAT) ruling in the Biggin Hill Airport v Derwich case in 2015, a rehearing isn’t obligatory.

EAT Ruling

During the Biggin Hill Airport v Derwich, an employee did not receive all the witness evidence regarding her sacking for gross misconduct. She received these missing witness statements before her internal appeal but claimed unfair dismissal as she believed that the missing evidence was a fundamental flaw in the procedure. However, the EAT claimed that because the evidence had been presented ahead of the internal appeal, the employer had done everything possible to rectify the mistake.

In a nutshell

The EAT ruled that procedural errors can be put right at the internal appeal stage and, in the event of an accidental error; you aren’t obliged to hold a rehearing.

For more information on this or any other HR matter please contact Alison directly.

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Disciplinary procedures: 10 common breaches of the Acas code of practice

This article is a summary of a piece published in Personnel Today in 2011 and subsequently updated in November 2014. The full article can be seen here.

Employment tribunals will take the “Acas code of practice on disciplinary and grievance procedures” into account when awarding compensation for unfair dismissal. This could increase and award by up to 25% for employers that haven’t followed the code. So where do most employers go wrong?

  1. Not warning the employee of the possible consequences of the disciplinary action. Employees must be given a fair chance to defend allegations properly. Disciplinary action and potential dismissal should not come as a surprise.
  2. Not setting out the nature of the accusations clearly to the employee. The employer should explain the alleged misconduct clearly and should, throughout the disciplinary process, be consistent in what it is accusing the employee of.
  3. Not furnishing the employee with relevant evidence against them. The employee should be provided with all the evidence, typically in the form of witness statements, in advance of the disciplinary hearing, in advance of attending the hearing.
  4. Not operating a system of warnings where appropriate. Whilst some cases may warrant a summary dismissal for a first offence in the majority of minor misconduct cases, a series of warnings before dismissal will be appropriate.
  5. Not allowing the employee to be accompanied at a disciplinary hearing. The Acas code reminds employers of the requirement to allow the employee to be accompanied at a disciplinary hearing. This applies when a worker who is invited by his or her employer to attend a disciplinary or grievance hearing makes a reasonable request for a companion to attend the hearing.
  6. Relying on evidence from one particular source with no corroborative evidence. There may be limited circumstances where one individual’s evidence is enough to lead to a disciplinary sanction, but an employer should always look for more.
  7. The absence of an adequate appeal stage. Employers should give the employee the opportunity to appeal when the outcome of the disciplinary hearing is communicated to them. Appeals should be unbiased and not be a “foregone conclusion”.
  8. Failure to keep clear records of the whole disciplinary process. To stand the best chance of successfully defending employment tribunal claims, employers must keep clear records of each stage of the disciplinary process.
  9. Delays in dealing with disciplinary issues. Most cases should be dealt with in a matter of weeks and unexplained delays in the disciplinary proceedings will always be frowned upon by tribunals.
  10. Having the same person deal with the whole disciplinary process. Ideally, different people should carry out the investigation, disciplinary hearing and appeal stage.

For more advice and support through disciplinary matters, please contact Alison.

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Dismissal and TUPE – a complicated case

In these times of businesses changing hands, merging and being sold, knowing how to handle the human resources issues is more important than ever.

The basic concept of TUPE is that when a business changes hands, the employees of the previous business owner automatically become employees of the new owner. Anyone who is dismissed prior to the transfer of business, for a reason connected with the transfer, will be protected by this area of the law. Such a dismissal will be automatically unfair and liability for the unfair dismissal transfers across to the new owner, even if the dismissal has meant that the employee has not.

If, however, that person should appeal against their dismissal, it would be considered null and void and they would be treated as if they had been employed at the time of transfer. Their employment would transfer to the new owner.

In a recent case, exactly this happened. The claimant was dismissed by the original company for gross misconduct. She lodged an appeal against the dismissal. Meanwhile the first company was sold and the employees entered into a TUPE transfer with a new company. The second company heard the claimant’s appeal and decided that the dismissal was unsafe but did not inform the claimant of its decision or reinstate them. Instead, it instructed an employment consultant to negotiate a settlement agreement (although this never actually happened).

The employment tribunal ruled against the claimant, stating that for unfair dismissal to hold true there needed to be a clear decision. Because of subsequent discussions they felt it was not clear and they could, therefore, not rule to reinstate the claimant. They did, however comment about the fact the internal appeal ruling was not communicated to the employee.

When this case went to the Employment Appeal Tribunal, however, they allowed the claimant’s appeal, ruling that once an appeal against dismissal is upheld the contract of employment is automatically revived. There is no need for a separate reinstatement decision or communication of that decision. The Claimant was therefore employed at the date of the TUPE transfer and entitled to pursue her claim against the second respondent.

The message for employers is to be careful about engaging in anything concerning TUPE without the support of a qualified human resources professional. For more advice on this or related matters, please contact Alison.

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Is an employee entitled to draw sick pay while working in a second job?

It might seem common sense to answer “very rarely” to this question but a recent case has pointed a spotlight on this matter, providing clarity for many employers.

The background

An employed hospital consultant had a second job seeing private patients one day per week. The hospital was aware of this. She submitted a series of medical certificates stating that she was unfit for work at the hospital and started a long period of leave. During this, however, she continued to see her private patients. Although there was nothing in her contract with the hospital to say she couldn’t carry on her private work during a period of sick leave the hospital’s Medical Director had written to her (and spoken to her) to say she should not do this as it “could be construed as fraud”. When the hospital found out that she was doing this they started disciplinary proceedings against her.

This started with a letter convening the disciplinary hearing. It was headed “Allegation into the undertaking of private practice during the period when certified as medically unfit” and contained the sentence “I must advise you that the allegation is potentially one of gross misconduct and if substantiated could lead to dismissal.”

Perhaps unsurprisingly, given the circumstances, the disciplinary panel decided that the consultant had committed gross misconduct and dismissed her. They sent her a letter containing the phrase “The Panel felt that this allegation constituted fraud which could be considered as gross misconduct”.

An employment tribunal rejected the consultant’s complaint of unfair dismissal although she was given leave to appeal to the Court of Appeal.

The appeal centred around the use of the term “fraud” in the dismissal letter. The Court of Appeal, however, was very clear in its ruling. The reason for dismissal was that the consultant had done private work while on sick leave. They ruled that the employment tribunal was indeed justified in finding the dismissal fair. Although the use of the term “fraud” may have been misleading they felt that the substance of the misconduct was correct and warranted dismissal.

The Court of Appeal made a very clear statement about employees who try to justify working in a second role while continuing to draw sick pay:

“The lay members of this Tribunal would emphasise that in the employment world claiming sick pay whilst working elsewhere is in general regarded very seriously by employers. In their experience any substantiated case almost inevitably will lead to dismissal, not least because if it did not, the employer might find it difficult to distinguish on any proper basis between the cases of other employees doing the same. That is not, however, to say that it is an inevitable conclusion”.

The court said this represented the general principle in future cases.

What do you need to do as employers?

Although the basic concept of this might appear obvious it is always worth spelling things out to employees when producing (and communicating) sickness and absence policies. Our advice is always to be as clear as possible and make sure employees are aware of exact circumstances and likely outcomes.

If you require advice on this or any other matters surrounding sickness or absence, please contact Alison.

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A duty to make reasonable adjustments for disabled people – how far should it go?

It is often the case that the law focuses on how an employer should make a reasonable adjustment, rather than their duty to make one in the first place. This was the case in our recent article Can the duty to make reasonable adjustments extend to paying for an employee to have private psychiatric counselling?

If an employer doesn’t know about the need for reasonable adjustments they have no duty to make them. Furthermore, if they could not reasonably be expected to know that the disabled employee is (or could be) placed at a disadvantage by a particular working practice, they can be forgiven for not anticipating any need to change.

Background

A case was brought before the Employment Appeal Tribunal recently concerning a ruling that
an employer was exempt from having to make reasonable adjustments when disciplining a disabled employee for leaving work early without permission, because the employer could not have known that the employee’s disability placed him under a disadvantage in having to request permission to leave work.

In this case the claimant displayed many symptoms of depression, including a tendency to lose concentration and his temper. One day, as a result of this, he left work early, without obtaining permission. At a disciplinary hearing the employer took into account the fact that the claimant had missed his medication that morning but concluded that his action amounted to misconduct and issued him a written warning. The claimant complained to an employment tribunal that this action amounted to a failure to make reasonable adjustments.

The tribunal viewed that the employer had knowledge of the disability (depression) from the claimant’s symptoms. They also found that his difficulty in asking for permission to leave work early was an effect of this. In short, they agreed that in issuing the warning the employer had failed to make reasonable adjustments for the Claimant’s disability.

When this case was brought before the Employment Appeal Tribunal, however, they allowed the employer’s appeal against the finding of disability discrimination. Although they considered that the employer ought to have known that the claimant’s depression constituted a disability, they did agreed that none of the claimant’s symptoms implied difficulty in asking for permission to leave work. As such he was not entitled to reasonable adjustments.

What do you need to do as employers?

Even though the EAT found in the employer’s favour, this case raises an important point concerning best practice. It is not enough to know whether your employees are disabled. This case demonstrates a need to understand the impact on their needs, within the workplace. Importantly, as an employer, you must know of circumstances that could place them at a substantial disadvantage in complying with workplace practices. Whilst it would be inappropriate to delve into the personal circumstances of your employees, taking the time to enquire into their needs could, ultimately, prove beneficial to all.

If you require advice on this or any other matters please contact Alison.

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Employment Appeal Tribunal rules that dismissal for abusive tweets was fair

This interesting appeal case sends a clear message out that employees should be held accountable for the content of their social media if they are connected with or followed by other employees and/or customers.

 

The background

 

The claimant was employed by Game Retail Ltd (GR Ltd), a games retailer with over 300 stores across the UK. His job was to investigate losses, fraud and theft in over 100 retail stores. Each of the 300 stores has its own Twitter profile and the store managers have access so that they can tweet.

 

The claimant opened a personal Twitter account and began to follow the Twitter accounts of the majority of GR Ltd stores so that he could monitor any inappropriate activity by employees. His account did not specifically associate him with GR Ltd although one local manager tweeted an encouragement to other stores to follow the claimant and 65 stores did so. The employee made no attempt to use the restriction settings, so his tweets were publicly visible by default.

 

In July 2013, however, an anonymous store manager notified one of GR Ltd’s regional managers about allegedly offensive and abusive tweets posted by the claimant. An investigation identified 28 offensive tweets – several of which contained expletive and obscene language. As a result GR Ltd found the Claimant guilty of gross misconduct and summarily dismissed him.

 

He brought a claim for unfair dismissal and the tribunal held that he had been unfairly dismissed. They felt that his dismissal fell outside of a reasonable response by an employer. The tribunal said the tweets were posted for private use, there was no proof that any employee or customer had access to them and he had not associated himself (or his comments) with GR Ltd. Added to this, GR Ltd’s disciplinary policy did not clearly state that inappropriate use of social media in private time would or could be treated as gross misconduct.

 

GR Ltd, however, appealed to the Employment Appeal Tribunal, it was held that the tribunal had failed to properly test the question of whether the claimant’s usage was indeed private. They noted that the claimant had not restricted his settings to private or set up separate accounts to monitor stores/for private use. He had not discouraged stores from following him and had in fact retweeted the local manager’s suggestion that they do so.

 

The EAT held that the original tribunal should have focused on whether the tweets were offensive and whether other staff or customers might have read them. In particular, the tribunal should have addressed the fact that the Claimant was following 100 stores and was followed back by 65. The EAT considered that it was possible to link the claimant and the employer from the claimant’s following/follower profile and as such ruled that the dismissal was fair.

What do you need to do now?

 

Although the courts do appear to draw a distinction between work related and personal use of social media, this boundary is increasingly blurring. Judgments are increasingly bearing reference to whether it is possible to identify a link between the person and their employer and the ‘net’ of exposure to comments.

 

Employers should take steps to ensure that this is adequately detailed in social media policies – not only setting out the penalties for posting inappropriate content, but providing clear guidelines for best practice and expectations of conduct.

 

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Employment Appeal Tribunal decision on holiday pay and overtime

The EAT recently ruled that employers should calculate holiday pay based on normal remuneration (payment for normal working hours as well as any payments normally paid, such as shift bonuses and commission) and all hours worked, including guaranteed and non-guaranteed overtime (overtime which the worker must work if offered – voluntary overtime is not included). This means that workers could now, potentially, call for previous holiday pay to be recalculated to take this into account.

 

The process for calculation is currently outlined in the Working Time Regulations Act of 1998. It means that overtime, which normally helps to increase average pay levels, is not included when calculating basic holiday pay. This puts the UK at odds with the European Working Time Directive, which doesn’t specify how holiday pay should be calculated and suggests that overall remuneration should be taken into account.

 

Background

 

This recent decision, recommending against this, follows a number of cases involving holiday pay claims from both current and former workers. They argued that overtime and commission should be included in calculations for holiday pay.

 

The EAT heard combined appeals in Bear Scotland Ltd v Fulton and Baxter; Hertel (UK) Ltd v Wood and others; and Amec Group Ltd v Law and others.

 

In Fulton, the Employment Tribunal interpreted the WTR as excluding a provision of ERA in calculating holiday pay to allow for the inclusion of overtime and other components of pay. In Neal v Freightliner, the same thing was achieved by the Employment Tribunal deciding to read additional words into the WTR so that the relevant provisions of ERA would apply to determine the amount of a week’s pay for holiday pay purposes. In Amec, the Employment Tribunal also read words into the WTR.

 

The varying decisions in the original ET claims demonstrate the different approaches that could previously be taken in interpreting the WTR. The ruling by the EAT potentially changes this and may need to result in legislative change in the UK.

 

What does this mean?

 

The appeal was based on a claim that average earnings (taking into account overtime as well as normal remuneration) should be used to calculate holiday pay, not just basic pay. The EAT ruled in favour of this. This applies to the minimum four weeks’ holiday required by EU law and not the additional 1.6 weeks provided by UK regulations or any discretionary holiday on top of that.

 

Could this open a floodgate of back claims?

 

The EAT tribunal ruled that workers can only make back claims if it is less than three months since their last holiday.

 

What do businesses need to do?

 

Businesses should be more aware of taking into account overtime and other normal remuneration, when calculating holiday pay for certain workers. However, workers must demonstrate that the overtime is essential to their job and it is unclear how they will do this. Our advice is to review all holiday pay processes and calculation procedures, as well the ways in which you communicate these to workers.

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