Employment

Employment law after the general election
15 June, 2017

What changes to employment law can we expect in the near future brown ballot boxfollowing the outcome of the general election, as we see the formation of the new Government and we wait for the ink to dry on the goatskin parchment ready for the Queen’s Speech?

European employment rights after Brexit

However the Government’s plans and priorities towards Brexit may or may not be realigned, the legislative programme for the new parliament is bound to be dominated by the so-called Great Repeal Bill, which is intended to copy across all existing European legislation into domestic law, repealing the European Communities Act 1972 and seeking to end the jurisdiction of the European Court of Justice.  This process will ultimately involve overhauling all the primary and secondary legislation which implement EU legislation, for example the Working Time Regulations.

The implementation of other proposals from the Conservative manifesto will have a more immediate impact on employment law, and we may in particular see included in the Queen’s Speech those proposals which are likely to enjoy broad cross-party support.

Family leave rights

Two proposals stand out here.  Firstly it is planned to introduce a statutory right to take time off, for between 3 months and 12 months, for employees whose family members require full-time care.  The employee taking leave would retain their employment rights and be entitled to return to the same job.  This right would expand on the current rights to take reasonable time off to deal with emergencies involving dependants.  Its take-up may be limited however because the leave would be unpaid.  It is also possible that this right would be limited to larger employers only, for example those with at least 250 employees.  Secondly a new right to child bereavement leave would be introduced, possibly providing the right to up to two weeks’ paid leave (whether at actual pay or at a statutory pay-rate).

Leave for training

Currently only people employed by large employers, those with 250 or more employees, have the statutory right to request time off for training.  It is proposed that this right would be extended to all employees.

Mental health and the Equality Act

The Conservative manifesto included a commitment to expand the scope of disability discrimination under the Equality Act so as to cover those suffering from episodic and fluctuating mental health conditions, for example depression or bipolar disorder, which may not currently satisfy the definition of a disability.  How this would be achieved is not clear, but one option would be to specify certain mental health conditions as deemed disabilities, in the same way as cancer or multiple sclerosis.

Equality gap reporting

The challenge to the Government here may be that these proposals are seen as not going far enough, and so are liable to significant amendment before coming law.  There was a promise in the manifesto to require large employers to publish more data on the gender pay gap, but no mention of introducing penalties for non-compliance with the reporting obligations.  There was also a promise to introduce for large employers a new mandatory reporting requirement on the “race gap” in terms of pay disparity between employees from different ethnic backgrounds.

Worker voice at board level

The manifesto promise on this front would only apply to listed companies.  The proposal is that listed companies would be required to adopt one of a selection of measures to improve employee representation at board level.  The options would be the nomination of a board director from the workforce, creation of a formal employee advisory council or assigning specific responsibility for employee representation to a designated non-executive director.

Employment status and the gig economy

In the longer term (and here the crystal ball starts clouding over) there is a commitment to follow up the outcomes of the Taylor Review of modern employment practices with measures to ensure that the interests of those working in the gig economy, as well as those of traditional employees and the self-employed, are properly protected.

Conclusion

While the current state of uncertainty extends to the direction and timing of employment law reform, we can expect significant legislative changes to take shape in this area over the coming months.


Can an employer fairly make an employee redundant following a period of ill health absence?
7 June, 2017

In Charlesworth v Dranfields Engineering Services Ltd the Employment Appeal Tribunal (EAT) considered this question.

The Facts

The Claimant was a branch manager of the Respondent company.  The company was underperforming and was looking to cut costs in 2012.  The Claimant was admitted to hospital with renal cancer in 2014 and was absent from work for approximately two months.  Whilst he was off, the company realised it could manage without the Claimant’s role and identified that it could make a saving of £40,000 per year by deleting his post and absorbing his responsibilities into other roles at the branch.  

Shortly after returning to work, the Claimant was made redundant following a consultation process. The Claimant brought a number of claims, including one of discrimination arising from disability, all of which were dismissed by the Employment Tribunal. The Claimant appealed on the basis that he was dismissed because of his absence and therefore this amounted to disability-related discrimination.

The Outcome

The EAT dismissed the Claimant’s appeal asserting that whilst it accepted there was a link between the Claimant’s absence and his dismissal, the redundancy process was not carried out because of the Claimant’s absence. The Claimant’s absence simply gave the Company the opportunity to realise they could manage without anybody carrying out his role.

What this means

Where companies have carried out a review of their business and decided that a particular role may not be needed, that role can potentially be deleted. This is a useful decision for employers, who might otherwise have assumed that making an employee redundant would always be disability discrimination in circumstances where the realisation of not needing a specific role occurs during an individual’s ill health absence.  

Although this is a useful decision for employers, the EAT’s judgment contained a warning.  Employers should think about the reason why they are dismissing an individual as there will be many cases with similar facts where the employee is dismissed because of their absence. If the employee’s absence itself is the reason for the decision to dismiss, the dismissal would then amount to disability-related discrimination.   


Holiday pay: what constitutes a break in a ‘series of deductions’?
30 May, 2017

In the recent matter of Fulton v Bear Scotland the EAT considered, in relation to holiday pay, whether a gap of three months between non-payment or underpayment of wages (in effect underpaid holiday pay) breaks the ‘series of deductions’, therefore limiting an employer’s exposure.

Background

The primary purpose of the Working Time Directive is to protect the health of employees. It does this by restricting the hours that employees are able to work, such as requiring rest breaks and rest periods, and giving employees the right to a minimum annual leave entitlement.

Back in 2011 (Williams v British Airways) and 2014 (Lock v British Gas) respectively the European courts acknowledged and established that if an employee’s normal remuneration included certain commission, overtime payments, and other allowances, then these are to be included in the employee’s holiday pay – otherwise the employee might be deterred from taking annual leave, which goes against the aim of the Directive.

Bear Scotland v Fulton 2014 EAT

In November 2014 the EAT confirmed in the case of Bear Scotland v Fulton that the UK’s Working Time Regulations could be read to conform with the Working Time Directive. The EAT determined that the ‘normal remuneration’ principle applied in the UK and that three months between an underpayment of holiday pay broke the ‘series of deductions.’ The case was passed back to the employment tribunal to apply the law to the facts of the case.

At the time the decision caused some concern for employers, with the potential for claims for a ‘series of deductions’ going back multiple years. However, shortly after the above decision a cap of two years was imposed on back pay in unlawful deduction from wages claims.

Fulton v Bear Scotland 2016 EAT- Break of three months?

The employment tribunal stated it was bound by the decision of the EAT and excluded any claims where more than three months had passed between successive failures to make the correct holiday pay. The claimants appealed arguing that on this point the EAT had been making a suggestion rather than it being material to the decision.

Providing clarity, the EAT disagreed and confirmed that a gap of three months would break the ‘series of deductions’ meaning a tribunal could not consider earlier underpayments.

What does this means for employers?

The decision is good news for employers and limits their exposure to claims.

Further, case law and the position of the courts has been that the requirement for holiday pay to be calculated on ‘normal remuneration’ is limited to the minimum 20 days under the Working Time Directive (as set out and implemented by regulation 13 of the Working Time Regulations) rather than the statutory minimum of 28 days under the Working Time Regulations (regulation 13A of the Working Time Regulations provides for the additional statutory entitlement of 1.6 weeks/8 days).

On the basis that employers have the right to direct when an employee can take leave it follows that employers can determine when the 20 days under the Working Time Directive are taken.

Some employers include a clause in their employment contract, or a section in their holiday policy, expressly stating that the first four weeks of annual leave taken in any holiday year shall be deemed to be the leave derived from the Working Time Directive (regulation 13 of the Working Time Regulations).

Therefore, the likelihood of there being a gap of 3 months (and a break in the ‘series of deductions’) between the last of the first 20 days of annual leave taken in one holiday year and the first day of annual leave in the following holiday year could be quite high. 


Social Media and The Workplace- Damaging the Employer’s Reputation
19 May, 2017

Social media is now a way of life.  It is everywhere you look and will have a presence in most things you do, both within the work environment and as part of your personal and social life.  The average person has approximately five social media accounts and spends roughly one and a half hours browsing on these networks every day.   

Wherever the social media activities of employees impact on the employment relationship- a topic discussed at Cripps’ recent HR Forums- it is not just precious hours that you could be losing to your social media habits. 

Employers are increasingly taking disciplinary action and dismissing employees where their social media activity damages the employer’s reputation, damages relationships with customers or colleagues, or otherwise calls into the question the suitability of the employee to continue in their particular job role.  The recent case of Plant v API Microelectronics Ltd demonstrates just this.

Overview

In 2015 the employer, API Microelectronics, introduced a new social media policy that provided for disciplinary action and the potential sanction of dismissal where an employee’s use of social networks might cause damage to the reputation of the company.  The policy gave a non-exhaustive list of what was considered to be irresponsible posting behaviour.

The employee, Mrs Plant, who had been working as a machinery operative for the company for 17 years, posted a comment on her Facebook page.  Her comment did not mention the name of her employer, but her profile page showed that she was an employee of the company and described her position at the company as a ‘dogsbody’.  Furthermore, her page was linked to the employer’s computer system.  The particular comment, which followed an announcement about the proposed relocation of the company’s factory, included the words “bloody place I need to hurry up and sue them”.

Despite Mrs Plant’s longstanding service to the company and clean disciplinary record she was dismissed on the grounds that her comments were inappropriate and breached the company’s social media policy.  The company considered that she had not provided an adequate enough explanation as to the reason behind her posts and that these posts were clearly aimed at the company.

Outcome

Mrs Plant applied to the employment tribunal on the grounds of unfair and wrongful dismissal, but the judge found in the employer’s favour.  Despite the judge stating that the decision might appear “harsh”, it was deemed that the employer’s reaction fell within the range of reasonable responses in the circumstances.  Mrs Plant was well aware of the employer’s social media policy and the potential consequences if she breached it. The “dogsbody” comment in her profile was derogatory and insulting both to the company and to her work colleagues, and the company was entitled to conclude that the “bloody place” comments were directed at it.

Practical Points to Take Away

For employers, this case shows that it is important to put in place water- tight social media policies that set clear guidelines and parameters for what the employer deems to be inappropriate behaviour.  Often dismissals in similar situations are found to be unfair because the employer did not lay down clear ground-rules and expected standards of behaviour through a clear social media policy.

The judgement noted that comments and posts can be forwarded on by friends and family, and there was a reminder to this effect in the social media policy.  Consequently employees should not solely rely on their social media privacy settings to prevent disciplinary action or dismissal.  Employees should take care to update their social media pages when social media policies are introduced and refrain from posting inappropriate comments across the board.

This decision is hard-line, but fell within the range of reasonable responses open to an employer.  It shows the importance for both employees and employers alike of being aware of the interface between social media and employment relationships in terms of company policies as well as personal behaviours.  Careless talk costs jobs and reputations.


Are your recruitment methods discrimination proof?
12 May, 2017

Overview

Objective approaches used within a company’s recruitment process, for example the use of psychometric testing methods, have come under scrutiny this week in light of the recent ruling in the case of Government Legal Service v Brookes (Brookes). 

As we find ourselves in the midst of Mental Health Awareness Week (MHAW), and with advocates like The Duke and Duchess of Cambridge supporting the need to stamp out the taboo that surrounds mental health, we recommend that employers review their recruitment processes and consider whether they put at a particular disadvantage any applicants who have Asperger’s syndrome or other developmental disabilities.  In some cases recruitment processes may require modification where applicants have a specific learning difficulty such as dyslexia.

The decision in Brookes

The case of Brookes relates to a candidate with Asperger’s Syndrome who applied for a training contract with the Government Legal Service (GLS).  The candidate asked GLS if, due to her Asperger’s, she could submit short written answers as a disability adjustment to the multiple choice Situational Judgement Test (SJT) as part of the recruitment process.  She was refused and she claimed indirect disability discrimination and a failure to make reasonable adjustments, after taking and narrowly failing the SJT.  The tribunal found in the candidate’s favour.

The Employment Appeal Tribunal (EAT) upheld this decision on appeal.  The requirement for all candidates to take and pass the SJT was a ‘provision, criterion or practice’ which put a group of disabled people such as Brookes at a substantial disadvantage compared to candidates who did not have Asperger’s.  While the GLS needed to test the core competency of ability of its candidates to make effective decisions, a psychometric test was not the only way to achieve this and so its defence of objective justification failed.  A relevant factor in the decision was that Brookes’ psychiatrist had made previous recommendations (in relation to her university courses) that a multiple choice format test would not be appropriate for her.

Implications

The use of objective tests that use standard multiple choice setups may need to be adjusted for those candidates who have a disability such as Asperger’s.  Although the medical evidence was inconclusive in this case, the tribunal found in the claimant’s favour regardless, and it is highly recommended that employers err on the side of caution when utilising objective tests in their recruitment processes when there are disabled applicants.  Employers should be prepared and willing to make adjustments to these standard tests if required to do so to prevent discrimination claims from arising.

In the broader context of mental health at work, difficulties and challenges can often be overlooked by employers and colleagues alike, but the importance of identifying any underlying issues is paramount in not only improving the working environment, but also preventing any potential disability discrimination claims that may arise.  It is essential to ensure there are open lines of communication with employees, to provide training for managers on spotting the signs of poor mental health at work, and conducting risk assessments to identify and reduce risks and hazards at work that may act as catalysts to the development of mental health problems among their employees.


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