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Monthly Update -  October 2018

 

In this issue
 
     KLC News                                                        click here
     News                                                               click here
     Cases                                                              click here     
     Coming soon                                                


KLC NEWS

The Autumn Law on Tour kicks off tomorrow, 2 October, in London and then proceeds to Manchester and Birmingham before returning to London at the end of the week. After that it visits Edinburgh, Stansted, London (again), Southampton, Leeds, Cardiff, Reading and finishes back in London on 19 October.

The workshops will cover: the new pay ratio reporting requirements, how contract terms can be implied through custom and practice, how to fairly dismiss for all reasons, lessons learnt since the implementation of the GDPR in May, dress codes and the GEO's new guidance, and all the latest case law and employment law developments.

Booking is available through the CIPD website.

NEWS

Parental Bereavement Leave and Pay

The Parental Bereavement (Leave and Pay) Bill 2018 received Royal Assent on 13 September 2018, introducing a statutory right to time off for employed parents who lose a child under the age of 18, or suffer a stillbirth from 24 weeks of pregnancy.

Under the Act the right to 2 weeks' leave will be a day one right, however, employees will require 26 weeks' service with their employer to be eligible to receive bereavement pay. Statutory bereavement pay will be at the same rate as other family-related statutory payments (currently £145.18 per week).

The Act fulfils the Government's manifesto promise to introduce such an entitlement and its provisions are expected to come into force in 2020.

Women's rights and guidance on sexual harassment

In late July the Equality and Human Rights Commission (EHRC) published a comprehensive report about women's rights, Pressing for progress: women's rights and gender equality in 2018.

The report covers all areas of life and addresses employment at chapter 8, Just and Fair Conditions of Work. The recommendations concerning women and work include the following.

The UK and Welsh Governments should:

  • monitor, and improve through concrete steps, women's access to secure employment with just and fair conditions, including for groups with comparatively low employment rates such as ethnic minority women and disabled women
  • address the problems with the availability and affordability of properly regulated childcare, including by ensuring adequately funded, flexible and high-quality childcare for all children, and monitor the impact different models of provision have on women's labour market participation, and
  • encourage men and women to share caring responsibilities on an equal basis.
  • ensure that women have access to employment advice services, particularly in relation to sexual harassment and the rights of pregnant women and new mothers.
  • take steps to tackle women's persistent occupational segregation in typically low-paid roles and sectors
  • ensure high-quality apprenticeships to reduce women's employment gaps and occupational segregation, and
  • consider ways to improve the participation and progression rates of under-represented groups in apprenticeships and set aspirational targets
  • develop national action plans to close gender, disability and ethnicity pay gaps, and report regularly on progress.

The UK Government should:

  • introduce dedicated non-transferable 'use it or lose it' parental leave for fathers with a pay rate that acts as a real incentive to take-up, and
  • legislate to extend the right to request flexible working to apply from day one in all jobs, unless there is a genuine business reason that means that this is not possible.
  • introduce a mandatory duty on employers to take reasonable steps to protect workers from harassment and victimisation in the workplace
  • introduce a statutory code of practice on sexual harassment and harassment at work, specifying the steps that employers should take to prevent and respond to sexual harassment, and which can be considered in evidence when determining whether the mandatory duty has been breached, and
  • amend the Equality Act 2010 to prohibit employers asking job applicants questions related to pregnancy and maternity, with a breach enforceable by the EHRC.
  • enforce the National Living Wage and monitor and report on the impact of NWL on women's pay and standard of living, and consider increasing the level at which NWL is paid, and
  • make it mandatory for employers to publish a narrative with their gender pay gap data to help employees and the public understand the factors underlying the gender pay gap and focus on how to make substantive improvements to the workplace for women.

Following the EHRC survey on sexual harassment and subsequent guidance, Sexual harassment and the law: guidance for employers, the Women and Equalities Committee produced its report on Sexual Harassment in the Workplace.

The report echoes many of the EHRC's recommendation on what should be done to tackle sexual harassment at work, including:

  • placing a mandatory duty on employers to protect workers from harassment and victimisation in the workplace
  • better controlling the use of non-disclosure agreements in cases of sexual harassment and making it an offence to propose a confidentiality clause designed or intended to prevent or limit the making of a protected disclosure or disclosure of a criminal offence.

To read the conclusions and recommendations click here.

 

 CASES

Royal Mencap Society v Tomlinson-Blake - sleep-in payments

In July, the Court of Appeal issued its judgment in the case of Royal Mencap Society v Tomlinson-Blake (Care England intervening). In a decision that has huge ramifications for the care sector Mencap's appeal was allowed, meaning that their 'sleep-in' care worker was not entitled to the National Minimum Wage (NMW) for sleep-in hours.

The decision is significant because in April 2017, the EAT had handed down a judgment setting out that the NMW was payable in such circumstances, and giving guidance that a multifactorial approach was required to decide whether someone was "working" during a sleep-in shift. On the basis of this judgment the HMRC's guidance for employers was changed and the Social Care Compliance Scheme was set up to give employers in the social care sector the opportunity to calculate and pay what were thought to be arrears of NMW. The arrears amounted to hundreds of millions of pounds.

As a result of the judgment in July there are no arrears and employers can go back to relying on the original HMRC guidance about NMW and sleep-ins. The Social Care Compliance Scheme is rendered more or less redundant.

However Unison have sought permission to appeal to the UK Supreme Court (UKSC).

It may take many weeks for the UKSC to decide whether or not to grant permission to appeal and if allowed it is unlikely that the appeal will be heard until the latter part of 2019.


Coming Soon

 We hope you enjoy this newsletter.  To keep up to date with employment law news as it happens, follow us on Twitter or, if you haven't already, sign up for our hot news email bulletins on our website.

 

29 April

Leeds

13 May

Cardiff

20 May

Manchester

30 April

Nottingham

14 May

Oxford

21 May

Birmingham

1 May

Stansted

15 May

London

22 May

Bristol

2 May

London

16 May

Southampton

23 May

  
Gender Pay Gap reporting
 
The deadlines for the first gender pay gap reports to have been published were 30 March 2018 for the public sector and 4 April 2018 for the private sector.  As of 5 April, 10,065 employers have reported their gender pay gap.
 
Increases to the rates of statutory payments
 
A reminder that with effect from 1 April 2018 the rate of statutory maternity pay, statutory adoption pay, shared parental leave pay and statutory paternity pay increased to £145.18 per week.  Statutory sick pay increased to £92.05 per week.
 
Increases to employment tribunal awards and redundancy pay
 
With effect from 4 April 2018 the maximum compensatory award for unfair dismissal increased from £80,541 to £83,682 (or a year's salary, whichever is the lower amount).  The limit on a week's pay increased from £489 to £508.
 
Injury to feelings awards
 
The Presidents of the Employment Tribunals have issued presidential guidance setting out new increased bands for awards for injury to feelings and psychiatric injury. The new bands, effective for claims presented on or after 6 April 2018, are:
•    lower band Vento - £900 to £8,600 (increased from £800 to £8,400)
•    middle band Vento - £8,600 to £25,700 (increased from £8,400 to £25,200)
•    upper band Vento - £25,700 to £42,900 (increased from £25,200 to £42,000)
•    only the most exceptional cases may attract an award exceeding £42,900.
 
Changes to tax treatment of payments in lieu of notice
 
Non-contractual PILON and injury to feelings payments made on dismissal will be subject to tax from 6 April 2018.
 
Increases to the National Minimum Wage rates
 
The national minimum wage, and national living wage rates increased on 1 April 2018, as follows:
 
National living wage                (25 and over)              £7.83 per hour
National minimum wage         (21 to 24)                     £7.38 per hour
                                                  (18 to 20)                     £5.90 per hour
                                                  (under 18)                   £4.20 per hour
                                                  (apprentice)               £3.70 per hour

Parental Bereavement Leave and Pay
 
On 3 April the Government put out a consultation document seeking views on its proposals to implement the Parental Bereavement (Leave and Pay) Bill.  The Bill, if approved by Parliament, will create a legal requirement for all employers to grant a minimum of 2 weeks' Parental Bereavement Leave, with pay at the statutory flat rate funded by the Government.
 
The consultation closes on 8 June 2018.

Equality and Human Rights Commission (EHRC) report on sexual harassment
 
Towards the end of March the EHRC published a report entitled Turning the tables: ending sexual harassment at work.
 
The report follows an evidence-gathering exercise that took place between December 2017 and February 2018 and which took contributions from around 1,000 individuals and employers. The EHRC make a number of recommendations aimed at preventing workplace sexual harassment, supporting employees to report harassment and preventing victimisation.
 
Specifically, the EHRC is recommending that the UK Government:
Introduce a mandatory duty on employers to take reasonable steps to protect workers from harassment and victimisation in the workplace.
Introduce a statutory code of practice on sexual harassment and harassment at work, specifying the steps that employers should take to prevent and respond to sexual harassment, and give employment tribunals the power to apply an uplift to compensation in harassment claims of up to 25% where it hasn't been followed.
Develop an online tool which addresses the barriers identified in the EHRC report and facilitates the reporting of sexual harassment at work.
Collect sexual harassment data every three years, report the findings and publish an action plan following each report.
Require employers to publish their sexual harassment policy and the steps being taken to implement and evaluate it.
Introduce legislation making contractual clauses which prevent disclosure of future acts of discrimination, harassment or victimisation void.
Include provisions in the statutory code of practice to clarify the circumstances in which confidentiality clauses preventing the disclosure of past acts of harassment will be void.
The limitation period for harassment claims in an employment tribunal should be extended to 6 months from the latest of the act of harassment, the last in a series of incidents of harassment or the exhaustion of any internal complaints procedure.
Introduce interim relief provisions for harassment and victimisation claims.
Restore the power of employment tribunals to make recommendations aimed at reducing the adverse effects of discrimination on the wider workforce. Make new regulations, reintroducing a statutory questionnaire procedure in discrimination and harassment claims.
Reinstate the requirement for employers to take action where an employee has been subjected to harassment by a third party, but make employers liable from the first instance.
 
The EHRC is also recommending that Acas develop targeted sexual harassment training for managers, staff and workplace sexual harassment 'champions'.
 
If the Government adopts these recommendations this will necessitate significant change for many employers, and will give employment tribunals wider ranging powers to make recommendations to improve employers' practices however at the moment these are just recommendations and there is no indication of what happens next in terms of a response from the Government.  Given the current climate it seems likely that at least some of the recommendations will be acted on.


 

Monthly Update -  July 2018

 

In this issue
 
     KLC News                                                        click here
     News                                                               click here
     Cases                                                              click here     
     Coming soon                                                


KLC NEWS

We've said it before but it really is true that it's an eternal circle here at KLC. It seems like only yesterday that Cas was delivering the Spring Tour but she is already starting to gather the resources and write the Autumn CIPD Law on Tour. The workshops will cover:

  • the new pay ratio reporting requirements (see below)
  • how contract terms can be implied through custom and practice
  • how to fairly dismiss for all reasons
  • lessons learnt since the implementation of the GDPR in May
  • dress codes and the GEO's new guidance, and
  • all the latest case law and employment law developments.

Booking is available through the CIPD website.

NEWS

Executive pay ratio reporting

The Department for Business, Energy and Industrial Strategy (BEIS) has laid draft regulations before Parliament which include a requirement for companies with more than 250 UK employees to report pay ratio information comparing the remuneration of the CEO with the 25th, 50th and 75th percentile of the company's UK employees. The Regulations will come into force on 1 January 2019 meaning the first firms will have to start reporting from 2020.

New Acas guidance on overtime

Acas have issued new guidance on overtime. The guidance includes a reminder that it will not be less favourable treatment to pay a part time worker their flat hourly rate until they have worked the same amount of hours as a full time counter part would have to work before receiving an enhanced rate.

Acas guidance on the World Cup!

Did someone say bandwagon?! Acas have issued guidance on some of the difficult issues that might arise at work as a consequence of the World Cup 2018.

 CASES

Employment status - Pimlico Plumbers Limited v Smith

The Supreme Court handed down its judgment in the case of Pimlico Plumbers Limited v Smith on 13 June 2018.

The case concerned whether or not Mr Smith was a worker, rather than (as asserted by Pimlico Plumbers) an independent contractor. The decision was unsurprising, setting out that the Employment Tribunal (ET) was entitled to conclude that Mr Smith was a 'worker' within the meaning of s230(3)(b) of the Employment Rights Act 1996, and by analogy within the relevant provisions of the Working Time Regulations 1998 and the Equality Act 2010.

The judgment set out that it was helpful to assess the significance of Mr Smith's 'right to substitute' by considering whether the dominant feature of the contract remained personal performance on his part. In this case the terms of the contract are clearly directed to performance by Mr Smith personally, and any right to substitute was significantly limited by the fact that the substitute had to be another 'Pimlico Plumber'. Consequently, the ET was entitled to hold that the dominant feature of Mr Smith's contract with the company was an obligation of personal performance.

Having now been found to be a worker, Mr Smith's substantive complaints of unlawful deductions from wages, that he had not been paid for a period of statutory annual leave, and disability discrimination can proceed to be heard, almost seven years later!

Coming Soon

 We hope you enjoy this newsletter.  To keep up to date with employment law news as it happens, follow us on Twitter or, if you haven't already, sign up for our hot news email bulletins on our website.

 

29 April

Leeds

13 May

Cardiff

20 May

Manchester

30 April

Nottingham

14 May

Oxford

21 May

Birmingham

1 May

Stansted

15 May

London

22 May

Bristol

2 May

London

16 May

Southampton

23 May

  
Gender Pay Gap reporting
 
The deadlines for the first gender pay gap reports to have been published were 30 March 2018 for the public sector and 4 April 2018 for the private sector.  As of 5 April, 10,065 employers have reported their gender pay gap.
 
Increases to the rates of statutory payments
 
A reminder that with effect from 1 April 2018 the rate of statutory maternity pay, statutory adoption pay, shared parental leave pay and statutory paternity pay increased to £145.18 per week.  Statutory sick pay increased to £92.05 per week.
 
Increases to employment tribunal awards and redundancy pay
 
With effect from 4 April 2018 the maximum compensatory award for unfair dismissal increased from £80,541 to £83,682 (or a year's salary, whichever is the lower amount).  The limit on a week's pay increased from £489 to £508.
 
Injury to feelings awards
 
The Presidents of the Employment Tribunals have issued presidential guidance setting out new increased bands for awards for injury to feelings and psychiatric injury. The new bands, effective for claims presented on or after 6 April 2018, are:
•    lower band Vento - £900 to £8,600 (increased from £800 to £8,400)
•    middle band Vento - £8,600 to £25,700 (increased from £8,400 to £25,200)
•    upper band Vento - £25,700 to £42,900 (increased from £25,200 to £42,000)
•    only the most exceptional cases may attract an award exceeding £42,900.
 
Changes to tax treatment of payments in lieu of notice
 
Non-contractual PILON and injury to feelings payments made on dismissal will be subject to tax from 6 April 2018.
 
Increases to the National Minimum Wage rates
 
The national minimum wage, and national living wage rates increased on 1 April 2018, as follows:
 
National living wage                (25 and over)              £7.83 per hour
National minimum wage         (21 to 24)                     £7.38 per hour
                                                  (18 to 20)                     £5.90 per hour
                                                  (under 18)                   £4.20 per hour
                                                  (apprentice)               £3.70 per hour

Parental Bereavement Leave and Pay
 
On 3 April the Government put out a consultation document seeking views on its proposals to implement the Parental Bereavement (Leave and Pay) Bill.  The Bill, if approved by Parliament, will create a legal requirement for all employers to grant a minimum of 2 weeks' Parental Bereavement Leave, with pay at the statutory flat rate funded by the Government.
 
The consultation closes on 8 June 2018.

Equality and Human Rights Commission (EHRC) report on sexual harassment
 
Towards the end of March the EHRC published a report entitled Turning the tables: ending sexual harassment at work.
 
The report follows an evidence-gathering exercise that took place between December 2017 and February 2018 and which took contributions from around 1,000 individuals and employers. The EHRC make a number of recommendations aimed at preventing workplace sexual harassment, supporting employees to report harassment and preventing victimisation.
 
Specifically, the EHRC is recommending that the UK Government:
Introduce a mandatory duty on employers to take reasonable steps to protect workers from harassment and victimisation in the workplace.
Introduce a statutory code of practice on sexual harassment and harassment at work, specifying the steps that employers should take to prevent and respond to sexual harassment, and give employment tribunals the power to apply an uplift to compensation in harassment claims of up to 25% where it hasn't been followed.
Develop an online tool which addresses the barriers identified in the EHRC report and facilitates the reporting of sexual harassment at work.
Collect sexual harassment data every three years, report the findings and publish an action plan following each report.
Require employers to publish their sexual harassment policy and the steps being taken to implement and evaluate it.
Introduce legislation making contractual clauses which prevent disclosure of future acts of discrimination, harassment or victimisation void.
Include provisions in the statutory code of practice to clarify the circumstances in which confidentiality clauses preventing the disclosure of past acts of harassment will be void.
The limitation period for harassment claims in an employment tribunal should be extended to 6 months from the latest of the act of harassment, the last in a series of incidents of harassment or the exhaustion of any internal complaints procedure.
Introduce interim relief provisions for harassment and victimisation claims.
Restore the power of employment tribunals to make recommendations aimed at reducing the adverse effects of discrimination on the wider workforce. Make new regulations, reintroducing a statutory questionnaire procedure in discrimination and harassment claims.
Reinstate the requirement for employers to take action where an employee has been subjected to harassment by a third party, but make employers liable from the first instance.
 
The EHRC is also recommending that Acas develop targeted sexual harassment training for managers, staff and workplace sexual harassment 'champions'.
 
If the Government adopts these recommendations this will necessitate significant change for many employers, and will give employment tribunals wider ranging powers to make recommendations to improve employers' practices however at the moment these are just recommendations and there is no indication of what happens next in terms of a response from the Government.  Given the current climate it seems likely that at least some of the recommendations will be acted on.


 

Monthly Update - February 2018

 

In this issue
 
     KLC News                                                        click here
     News                                                               click here
     Cases                                                              click here     
     Coming soon                                                


KLC NEWS

February, already?! Where did January go? Things are fantastically busy here at KLC with Cas Carrington, Partner, currently writing the Spring CIPD Law on Tour, Piers dealing with a large influx of claims (who said ET fees put people off?!) and all of us getting to grips with the lengthy proposals - detailed below - from the Government. Cas will be dealing with these proposals in detail in the Spring CIPD Law on Tour workshops starting on 17 April, bookings for which can be made via the CIPD website.

NEWS

Government response to the Taylor Review

On 7 February the Government set out its response to the Taylor review in a press release which stated that the proposals ensure workers know their rights and receive the benefits and protections they are entitled to, and that action is taken against employers who breach workers' rights.

The proposals include:

  • enforcing vulnerable workers' holiday and sick pay for the first time
  • a list of day-one rights including holiday and sick pay entitlements and a new right to a payslip for all workers, including casual and zero-hour workers
  • a right for all workers, not just zero-hour and agency, to request a more stable contract, providing more financial security for those on flexible contracts

The Government state that this will "mean tangible progress". This may be rather an overstatement on the Government's part, to say the least.

The press release went on to say that the Government would seek to protect workers' rights by:

  • taking further action to ensure unpaid interns are not doing the job of a worker.
  • introducing a new naming scheme for employers who fail to pay employment tribunal awards.
  • quadrupling employment tribunal fines for employers showing malice, spite or gross oversight to £20,000 and considering increasing penalties for employers who have previously lost similar cases.
  • providing all 1.2 million agency workers with a clear breakdown of who pays them and any costs or charges deducted from their wages.
  • asking the Low Pay Commission to consider the impact of higher minimum wage rates for workers on zero-hour contracts.
  • considering repealing laws allowing agencies to employ workers on cheaper rates.
  • defining 'working time' for flexible workers who find jobs through apps or online so they know when they should be being paid.
  • launching a task force with business to promote awareness and take-up of the right to request flexible working introduced in 2014.
  • making sure new and expectant mothers know their workplace rights and raise awareness amongst employers of their obligations.
  • launching a new campaign to encourage more working parents to share childcare through Shared Parental Leave.

Later the same day the Government launched the following four consultations detailing the proposed responses:

Agency workers recommendations which closes on 9 May 2018.

Enforcement of employment rights recommendations which closes on 16 May 2018.

Increasing transparency in the labour market which closes on 23 May 2018.

Employment status which closes on 1 June 2018.

The Government also issued a policy paper: Government's response to the Taylor review of modern working practices setting out its response to the Matthew Taylor review, including the Good Work Plan for taking forward its recommendations on employment policy and legislation.

Enforcing Gender Pay Gap reporting

The EHRC's consultation about their plans to enforce gender pay gap reporting closed on 2 February. In the consultation they set out that the focus for 2018/19 will be on ensuring that those employers who are required to report their gender pay gap have done so. If they have any extra resource they will focus on whether such information is accurate!

Increases to the rates of statutory payments

With effect from 1 April 2018 the rate of statutory maternity pay, statutory adoption pay, shared parental leave pay and statutory paternity pay will increase to £145.18 per week. Statutory sick pay increases to £92.05 per week.

 CASES

 Aubrey v Chief Constable of Northumbria Police - costs awards

This recently published judgement from the ET provides a useful insight as to how costs applications should be dealt with. In this case the application was for £660,000 costs and the award made was for £15,000 which reflected the ET's assessment of costs wasted as a result of the Claimant pursuing part of her case which had no prospect of success. Of particular interest is the postscript added by Employment Judge Forrest which begins at Paragraph 53 of the judgement, in which there is criticism of other Tribunals making punitive costs awards rather than compensatory awards as set out in the authorities.

Royal Surrey County NHS Foundation Trust v Drzymala - fixed term contracts and unfair dismissal

This case is a good reminder that although the non-renewal of a fixed term contract is potentially a fair dismissal, it does not attract special treatment and must still meet the 'reasonableness' test under s98(4) of the Employment Rights Act 1996.

D, a doctor, was employed on a series of six-month contracts for the Trust. When D failed to obtain a permanent position following a competitive interview process and her fixed term contract was not renewed she brought a claim of unfair dismissal. The ET found that D had been unfairly dismissed because the Trust had not given her the right to appeal nor had they taken action to find her an alternative position.

The EAT dismissed the Trust's appeal. The non-renewal of D's contract was a dismissal for unfair dismissal purposes, and was for 'some other substantial reason'. Although this was a potentially fair reason, the dismissal still had to meet the test at s98(4)ERA which states that whether the dismissal is fair or unfair (having regard to the reason shown by the employer) , depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.

The dismissal did not meet that test and so the ET was entitled to find that the dismissal was unfair.

Coming Soon

We hope you enjoy this newsletter.  To keep up to date with employment law news, follow us on Twitter or, if you haven't already, sign up for our hot news email bulletins on our website.

 

29 April

Leeds

13 May

Cardiff

20 May

Manchester

30 April

Nottingham

14 May

Oxford

21 May

Birmingham

1 May

Stansted

15 May

London

22 May

Bristol

2 May

London

16 May

Southampton

23 May

 

Monthly Update -  June 2018

 

In this issue
 
     KLC News                                                        click here
     News                                                               click here
     Cases                                                              click here     
     Coming soon                                                


KLC NEWS

The Spring Law on Tour workshops that we write and deliver for the CIPD were fantastically well received during April and early May. Now they're finished if you'd like us to deliver one in-house for you, please just get in touch. The workshops cover:

  • GDPR - the new requirements and how to stay compliant
  • How to prevent and deal with sexual harassment
  • Employment status changes
  • Mental health at work
  • Successfully defending employment tribunal claims
  • Holiday pay
  • All the latest case law.

The 90% increase in tribunal cases lodged in the quarter following the repeal of ET fees is certainly beginning to be reflected in the amount of claims our clients are receiving. If you have a claim made against your organisation why not let KLC manage it for you. We manage claims right from response to representation at ET.

NEWS

Data Protection - GDPR and a new Act

Just in case you missed it.... the General Data Protection Regulation (GDPR) came into force on 25 May 2018. The Data Protection Act 2018 was given Royal Assent on 23 May 2018 and the main provisions came into force on 25 May 2018. The Act runs to 354 pages! The Information Commissioner's Office has a wide range of resources on the Act and the GDPR on the following link.

Dress Codes' guidance

The Government Equalities Office has published new guidance on dress codes and discrimination. The guidance was written following a recommendation from the Parliamentary Women and Equalities Select Committee and the Petitions Committee. It sets out that dress policies do not have to be identical for men and women but that standards must be equivalent and gender-specific requirements such as high heels or make up are likely to be unlawful.

Acas guidance on religion or belief in the workplace

Acas has released guidance on religion and belief in the workplace. The guidance includes useful practical advice about issues to consider including food, alcohol and fasting.



 CASES

Discrimination and Shared Parental Leave Pay


In the case of Ali v Capita Customer Management Limited the ET found that Mr Ali had suffered direct sex discrimination when his employer, Capital Customer Management Limited (CCML) gave enhanced maternity pay to female employees but would not give enhanced Shared Parental Leave pay to him for the 12 weeks after the compulsory maternity leave period. Mr Ali's case was that after the first 2 weeks of compulsory maternity leave there was no difference between him and a female member of staff. CCML appealed to the EAT.

In April 2018 the EAT overturned the decision of the ET setting out that it had "failed to consider or have regard to the purpose of maternity leave with pay...which is for the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth" and had therefore erred in considering that the circumstances of Mr Ali were comparable with those of a woman who had recently given birth as both had leave to care for their child.

This appeal was linked to the case of Hextall v The Chief Constable of Leicestershire Police (CCLP) in which a different ET decided that there was no discrimination where Hextall was not paid enhanced pay during Shared Parental Leave. The appeal in this case was heard in early May and as a result the case has been sent back to a new ET to decide whether CCLP's policy of enhancing maternity pay for the first 18 weeks, but only paying SPL at statutory rates, amounted to indirect sex discrimination.

Mr Hextall arguably has a greater chance of success than Mr Ali because clearly only receiving statutory pay whilst on Shared Parental Leave has a detrimental impact on more men than women, so will the CCLP be able to objectively justify their policy? We'll let you know what the ET decides, although that is unlikely to be the end of it!

Does silence equal acceptance to contract changes?

In the recently decided case of Abrahall v Nottingham City Council (NCC) the Court of Appeal decided that an employee who worked on without protest after a variation of contract was imposed had not necessarily accepted the variation.

Apart from deciding whether the employees in question had a contractual right to incremental pay progression, the Court of Appeal also had to look at whether the employees should be taken to have accepted a variation of their contracts by working for two years under the pay freeze.

The Court of Appeal held that the employees should not be taken to have accepted the variation and set out a number of helpful principles on whether acceptance should be inferred, which include:

  • conduct that brooks no other reasonable explanation other than acceptance, should be the only conduct that from which acceptance is inferred.
  • where a proposed variation is wholly disadvantageous to the employees concerned then acceptance is less likely to be inferred.
  • collective protest (regardless of a lack of individual protest) may negate any inferred acceptance.
  • relying on inferred acceptance where the employer represented that there was no change of contract (and so acceptance was not actually necessary anyway) will weaken that reliance.

Misconduct dismissals

Two cases heard recently have considered the issue of whether a dismissal for misconduct can be fair without prior warnings where that misconduct does not amount to gross misconduct.

In the first, Mbubaegbu v Homerton University Hospitals NHS Foundation Trust the Claimant, M, was a consultant surgeon. The EAT found that HUH's reliance upon a pattern of conduct giving rise to concerns about patient safety was a sufficient reason to dismiss and fell within the range of reasonable responses notwithstanding the fact that there was no single act of misconduct that could be said to amount to gross misconduct.

In the second, Quintiles Commercial v Barongo the Claimant, B, worked in pharmaceutical sales. He failed to complete compliance training or to attend a compulsory training course and was dismissed with notice for 'gross misconduct'. On appeal the employer, QC, re-categorised the misconduct as being 'serious' but upheld the decision to dismiss. The ET held the dismissal to be unfair since no prior warnings had been given. The EAT upheld QC's appeal setting out that section 98(4)of the Employment Rights Act 1996 contains no rule that dismissing an employee without prior warnings for conduct that is less than gross misconduct is unfair, and that although most cases would fall outside the band of reasonable responses the ET should have considered the entire circumstances of the case rather than taking such a rigid approach and substituting its own view. The case has been remitted to a new ET for reconsideration.

Coming Soon

 We hope you enjoy this newsletter.  To keep up to date with employment law news as it happens, follow us on Twitter or, if you haven't already, sign up for our hot news email bulletins on our website.

 

29 April

Leeds

13 May

Cardiff

20 May

Manchester

30 April

Nottingham

14 May

Oxford

21 May

Birmingham

1 May

Stansted

15 May

London

22 May

Bristol

2 May

London

16 May

Southampton

23 May

  
Gender Pay Gap reporting
 
The deadlines for the first gender pay gap reports to have been published were 30 March 2018 for the public sector and 4 April 2018 for the private sector.  As of 5 April, 10,065 employers have reported their gender pay gap.
 
Increases to the rates of statutory payments
 
A reminder that with effect from 1 April 2018 the rate of statutory maternity pay, statutory adoption pay, shared parental leave pay and statutory paternity pay increased to £145.18 per week.  Statutory sick pay increased to £92.05 per week.
 
Increases to employment tribunal awards and redundancy pay
 
With effect from 4 April 2018 the maximum compensatory award for unfair dismissal increased from £80,541 to £83,682 (or a year's salary, whichever is the lower amount).  The limit on a week's pay increased from £489 to £508.
 
Injury to feelings awards
 
The Presidents of the Employment Tribunals have issued presidential guidance setting out new increased bands for awards for injury to feelings and psychiatric injury. The new bands, effective for claims presented on or after 6 April 2018, are:
•    lower band Vento - £900 to £8,600 (increased from £800 to £8,400)
•    middle band Vento - £8,600 to £25,700 (increased from £8,400 to £25,200)
•    upper band Vento - £25,700 to £42,900 (increased from £25,200 to £42,000)
•    only the most exceptional cases may attract an award exceeding £42,900.
 
Changes to tax treatment of payments in lieu of notice
 
Non-contractual PILON and injury to feelings payments made on dismissal will be subject to tax from 6 April 2018.
 
Increases to the National Minimum Wage rates
 
The national minimum wage, and national living wage rates increased on 1 April 2018, as follows:
 
National living wage                (25 and over)              £7.83 per hour
National minimum wage         (21 to 24)                     £7.38 per hour
                                                  (18 to 20)                     £5.90 per hour
                                                  (under 18)                   £4.20 per hour
                                                  (apprentice)               £3.70 per hour

Parental Bereavement Leave and Pay
 
On 3 April the Government put out a consultation document seeking views on its proposals to implement the Parental Bereavement (Leave and Pay) Bill.  The Bill, if approved by Parliament, will create a legal requirement for all employers to grant a minimum of 2 weeks' Parental Bereavement Leave, with pay at the statutory flat rate funded by the Government.
 
The consultation closes on 8 June 2018.

Equality and Human Rights Commission (EHRC) report on sexual harassment
 
Towards the end of March the EHRC published a report entitled Turning the tables: ending sexual harassment at work.
 
The report follows an evidence-gathering exercise that took place between December 2017 and February 2018 and which took contributions from around 1,000 individuals and employers. The EHRC make a number of recommendations aimed at preventing workplace sexual harassment, supporting employees to report harassment and preventing victimisation.
 
Specifically, the EHRC is recommending that the UK Government:
Introduce a mandatory duty on employers to take reasonable steps to protect workers from harassment and victimisation in the workplace.
Introduce a statutory code of practice on sexual harassment and harassment at work, specifying the steps that employers should take to prevent and respond to sexual harassment, and give employment tribunals the power to apply an uplift to compensation in harassment claims of up to 25% where it hasn't been followed.
Develop an online tool which addresses the barriers identified in the EHRC report and facilitates the reporting of sexual harassment at work.
Collect sexual harassment data every three years, report the findings and publish an action plan following each report.
Require employers to publish their sexual harassment policy and the steps being taken to implement and evaluate it.
Introduce legislation making contractual clauses which prevent disclosure of future acts of discrimination, harassment or victimisation void.
Include provisions in the statutory code of practice to clarify the circumstances in which confidentiality clauses preventing the disclosure of past acts of harassment will be void.
The limitation period for harassment claims in an employment tribunal should be extended to 6 months from the latest of the act of harassment, the last in a series of incidents of harassment or the exhaustion of any internal complaints procedure.
Introduce interim relief provisions for harassment and victimisation claims.
Restore the power of employment tribunals to make recommendations aimed at reducing the adverse effects of discrimination on the wider workforce. Make new regulations, reintroducing a statutory questionnaire procedure in discrimination and harassment claims.
Reinstate the requirement for employers to take action where an employee has been subjected to harassment by a third party, but make employers liable from the first instance.
 
The EHRC is also recommending that Acas develop targeted sexual harassment training for managers, staff and workplace sexual harassment 'champions'.
 
If the Government adopts these recommendations this will necessitate significant change for many employers, and will give employment tribunals wider ranging powers to make recommendations to improve employers' practices however at the moment these are just recommendations and there is no indication of what happens next in terms of a response from the Government.  Given the current climate it seems likely that at least some of the recommendations will be acted on.


 

Monthly Update - December 2017

 

In this issue
 
     KLC News                                                        click here
     News                                                               click here
     Cases                                                              click here     
     Coming soon                                                

 


KLC NEWS

ET claims up 66% in last quarter

Recently produced statistics from the Employment Tribunal (ET) service shows that there was a 66% increase in the overall number of ET claims made in the three months after the Ministry of Justice stopped charging ET fees in July.

The Government has confirmed that it is still intending to charge a fee but that it needed to be careful to ensure that tribunals were still accessible and affordable. At present there is no indication of what that fee will be, or when it will be introduced.

Increases in National Minimum Wage for 2018

The Government has accepted the Low Pay Commission's recommendation that the hourly rates should increase in April 2018:

from £7.50 to £7.83 for workers aged 25 and over (the National Living Wage)

from £7.05 to £7.38 for 21-24 year olds

from £5.60 to £5.90 for 18-20 year olds

from £4.05 to £4.20 for 16-17 year olds

from £3.50 to £3.70 for apprentices aged under 19 or in the first year of their apprenticeship.

New Acas guidance and advice

Acas issued guidance and advice for employers in November. New advice for employers and employees on dealing with sexual harassment at work and guidance entitled Pregnancy and maternity discrimination: key points for the workplace. Acas say the guidance was issued in response to a sharp increase in calls to their helpline on this issue. The guidance explains what pregnancy and maternity discrimination is, when it can happen, the key areas of employment where discrimination can happen, and considerations for everyone.

Employment Status

On 21 November 2017 the Work and Pensions, and Business, Energy and Industrial Strategy Committees published a joint report, A framework for modern employment, which contains a draft Bill which aims to take forward some of the central proposals from the Taylor Review of modern working practices. The Taylor review recommendations were published back in July 2017 in Good Work.

One of the Committee's proposals and the Bill's provisions is a change to the burden of proof for employment status, placing the burden on the employer to show self-employed status, rather than the worker having to establish employment status. Other provisions include:

  • the requirement for all workers (not just employees) to receive written particulars within seven days of starting work
  • the free-standing right to make an ET claim if an employer fails to issue written particulars
  • greater distinction between categories of worker with more emphasis on the control test and specific examples of control
  • increasing the period of time that breaks continuous service from one week to one month
  • higher minimum hourly rates for workers not on guaranteed hours
  • abolition of the Swedish derogation
  • Greater penalties for employers who do not change the employment status of workers after a successful ET has been made on status of a worker in that category.

 CCASES

King v The Sash Window Workshop

The Court of Justice for the European Union (CJEU) published its decision in the case of King v The Sash Window Workshop Limited on 29 November.

The Claimant, Mr King, was stated to be self-employed. His contract did not specify whether he was entitled to paid leave and he had not been paid for any leave taken in 13 years. When he left the Company at age 65 he brought claims for holiday pay to the ET. The Court of Appeal asked the CJEU to decide whether in circumstances where there is a dispute between a worker and employer as to whether the worker is entitled to annual leave with pay, it is compatible with EU law if the worker has to take leave first before being able to establish whether he is entitled to be paid.

The decision follows the advice given by the Advocate General, issued earlier this year, and sets out that that it would be contrary to EU law to require a worker to take leave before finding out if he will be paid for it and such a situation would amount to a worker not being provided with paid leave (contrary to the European Working Time Directive). In circumstances where an employer has not provided a worker with paid leave, the right to paid leave carries over until he has the opportunity to exercise it and on termination of employment the worker has the right to payment in lieu of leave that remains outstanding - in Mr King's case 13 years' worth.

This decision only applies to the European Working Time leave entitlement of 4 weeks however may have far reaching consequences because the CJEU set out in the judgment that the fact that The Sash Window Workshop considered, incorrectly, that Mr King was not entitled to paid leave was irrelevant. This means all those organisations in the spotlight over employment status in the gig economy are potentially looking at a much greater liability if the claims against them for worker status succeed.

Their pain will also be compounded by the potential back pay liability! Following Mr King's claim, workers who are denied the right to take annual leave may bring claims for breach of the Working Time Regulations, rather than unlawful deduction from wages and consequently the maximum of 2 years' back pay set down in the Deduction from Wages (Limitation) Regulations 2014 will not apply and neither will the rule established in the Bear Scotland case about a 3 month gap breaking the chain of deductions, meaning there is no time bar to potential back pay.

This judgment and the comments made in it also bring into question whether or not the Deduction from Wages (Limitation) Regulations 2014 and the 3 month gap rule can stand in any case concerning annual leave (such as workers who have not been paid correctly for their leave) since they are incompatible with the Working Time Directive.

Holiday pay is going to continue to be a theme in 2018 one way or another!

Uber - attempt to leapfrog the Court of Appeal denied

Following the EAT's decision in Uber B.V. v Aslam & ors that the ET had been correct in finding Uber drivers were 'workers', Uber have been denied permission to leapfrog the Court of Appeal and have their appeal heard at the Supreme Court. Although bypassing the Court of Appeal is only rarely allowed in extremely important cases that may have far reaching consequences, given the uncertainty caused by the recent ECJ's decision in King v Sash Windows Workshop Ltd (above) it may have been an opportunity to give employers some certainty.


Coming Soon

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29 April

Leeds

13 May

Cardiff

20 May

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30 April

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14 May

Oxford

21 May

Birmingham

1 May

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15 May

London

22 May

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2 May

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16 May

Southampton

23 May