Monday, 2 November 2015

NOVEMBER issue, employment law newsletter

My periodic newsletter on all things employment law related that I think you should be aware of.
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Hello  << Test First Name >> ,

   We are now well and truly in Autumn mode,  but the prospects of any clarity in employment law is as remote as ever.         We do know, national minimum wage went up on 1st October,  we do know,  the "living wage" will be introduced in April next year for employees over 25.     As for how much we'll have to pay "1st & last journey" time, read this months' interesting item, it explains, that, whilst we may have to pay travel time,  it does automatically mean the same rate of pay as for other "work" hours.   The argument also extends to employees who work "on call",    the rate of pay, need not be the usual workers rate,   as long it meets the NMW.
        
Read on for details, and, as always, call me or mail me if you have any concerns or need more information about this edition's content.

Kind regards,     Paul
 

First The News:
  Office banter or harassment? Seven case law examples:
When barrister Charlotte Proudman tweeted what she described as a sexist message  from a fellow lawyer on LinkedIn last month, she received broad support from people who agreed with her stand against everyday sexism. But she also faced harsh criticism from those who felt the message was harmless office banter, describing her public outing of the lawyer as a “feminazi” overreaction.  
LinkedIn is used by many to broaden their professional network. Charlotte Proudman felt that a fellow lawyer crossed the line when he commented that her profile picture was “stunning”. She said that she was on LinkedIn for “business purposes” and not to be approached by “sexist men”.
This exchange received huge media coverage in the following days.
Similar comments at work can lead to discrimination and harassment claims.

My Comment:   I've said before,   I don't just report this stuff,    I sometimes actually experience it.
When I worked in an office,  involved in a mixed group organising an internal seminar,  some young thing made reference to "delegates"  ,   I simply said I thought delegates was a setting on my wife's washing machine....!       You could have heard the  intake of breath 4 floors up !  
see the full list at      

And my thanks to Personnel Today. see them at:   




 


Newsflash:   
Company directors face criminal charges over redundancies :
Former company directors in two separate organisations have been charged with criminal offences relating to their failure to follow redundancy consultation rules. 
The chief executive of retail group Sports Direct, David Forsey, was charged in October with a criminal offence for failing to comply with rules requiring the Secretary of State to be notified about the redundancies of employees in a depot of fashion division USC. About 200 employees were given 15 minutes’ notice by USC that they were to be made redundant.

Under the Trade Union and Labour Relations (Consolidation) Act 1992, notice should be given to the Department of Business, Innovation & Skills by completing a form HR1, if an employer proposes to make 20 or more employees redundant at one establishment within a period of 90 days or less.
                  Failure to do so is a criminal offence and the employer will be liable on summary conviction to a fine. Since 12 March 2015, the fine is unlimited (before that date the maximum fine was £5,000).
                 Under the Act, employers also have a duty to consult with employee representatives at least 30 days before making 20 or more redundancies, or 45 days before making 100 or more redundancies. The Act also requires an employer that is planning to dismiss more than 20 employees in any one establishment, to give the Secretary of State the same periods of notice.

My Comment:  This of course is big stuff,   for major players,  not likely to affect more modest businesses,  but,    it does represent a salutary lesson,  that employment law is to be taken as seriously as,    say,   your VAT returns,   it can cost your business heavily if you get the procedures wrong,   which is the issue here.    It's not the redundancy,   it's the method used.   
read more at:

My Thanks to the excellent publication Personnel Today for this,   see them at  :
 

And finally tonight!
Travel time and on-call time are treated differently for the purposes of the national minimum wage and the working time legislation.
The ECJ held that workers with no fixed place of work were “working” when travelling to their first assignment in the morning and travelling back home again at the end of the day.
 
 
However, contrary to some reports, the case does not have anything to do with how much people are paid when they are travelling to and from work – as the Court makes explicitly clear in its judgment.
How much an employee is paid – and for what – is primarily a matter of contract. There is no obligation on an employer to pay an employee for each hour of work. For example, many employees work unpaid overtime. There is no doubt that it counts as working time, but that does not mean that they have to be paid for it. What matters is what the contract says.
The only law we have on how much an employee is paid is the National Minimum Wage Act 1998 – with most of the detail now set out in the National Minimum Wage Regulations 2015 (SI 2015/621).
But the law on the national minimum wage does not require each hour of work to be paid at a particular rate. It requires that the average hourly rate of a worker should be at least the level of the national minimum wage.

My Comment:   this issue will rumble on for a while methinks,   courts,  do not always make things clear,   they merely arrive at a decision on the merits of "a particular case"   WE are left trying to apply the decision to subsequent cases,  with slightly  different issues.   
read more at:

My thanks to Xperthr  for this excellent and informative piece see more at :


 


 

 
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Health& Safety Myths

A light hearted look at some of the idiotic things we hear.

a pub with no candles

Case 378 - A pub would not use all the candles supplied on a birthday cake for ‘health and safety’ reasons
 

Issue

A pub was provided with a birthday cake to bring out for a customer with candles that spelt ‘happy birthday’, but were told that they could not have all the candles on it for health and safety reasons.

Panel opinion

What a party pooper! There are no health and safety reasons why the correct number of candles cannot be put on a birthday cake. Perhaps the cake wasn't big enough or they didn't have enough candles but using the old ‘elf n safety’ excuse has probably ensured no further happy returns to this particular establishment.

 

Case 312 - Chips can not be served in a paper cone
Issue

When ordering chips from a chip shop to take away, enquirer's wife asked for her chips to be just put in paper and wrapped in a cone rather than have them served in the normal plastic type tray so they would be easier to eat and carry as they walked round the shops. However, she was told by the lady serving behind the counter... "We can't do that, it's against health and safety, in case you burn yourself on the chips". She was then advised that once they served them to her, she is more than welcome to remove the tray and wrap them up herself.

Panel decision

The customer made a perfectly sensible request and there is no health and safety reason which would prevent the shop proprietor doing as requested. Cases of poor customer service like this need to be wrapped up and thrown in the bin.

As always my thanks to the HSE site for these stories.    see them at:

Office banter or harassment? Seven case law examples



When barrister Charlotte Proudman tweeted what she described as a sexist message  from a fellow lawyer on LinkedIn last month, she received broad support from people who agreed with her stand against everyday sexism. But she also faced harsh criticism from those who felt the message was harmless office banter, describing her public outing of the lawyer as a “feminazi” overreaction.  

Bar Huberman rounds up some of the discrimination and harassment claims that followed inappropriate comments made by people at work.
LinkedIn is used by many to broaden their professional network. Charlotte Proudman felt that a fellow lawyer crossed the line when he commented that her profile picture was “stunning”. She said that she was on LinkedIn for “business purposes” and not to be approached by “sexist men”.
This exchange received huge media coverage in the following days.
Similar comments at work can lead to discrimination and harassment claims. The damage to an employer’s reputation from such claims, in addition to the costs involved in defending a claim, highlights the importance of creating an organisational culture that is free from harassment.
In many of the cases we highlight below, the tribunal noted the lack of discrimination and harassment training within the organisation, and a failure to update and follow relevant policies.

Gay lawyer who discovered homophobic comment in case file was discriminated against

In Bivonas LLP and other v Bennett, B found a handwritten note in which he and a colleague were discussed. Among other remarks, the note made reference to B’s “batty boy mate”.
This amounted to direct sexual orientation discrimination, because a reasonable worker could take the view that this was a detriment.
The tribunal noted that the claimant’s colleague who had investigated his grievance prior to the tribunal claim “had received no awareness training whatever in matters of equality, diversity or the possibility of unconscious as well as conscious prejudice”.

Heterosexual employee called “gay” won harassment claim

In Austin v Samuel Grant (North East) Ltd, a heterosexual male employee, A, won a sexual orientation and religion or belief harassment claim after repeated inappropriate remarks made verbally and by email.
During once incident, colleagues asked A whether or not he liked football. When A told them that he was not interested, his colleagues said “you’re gay then”.
A filed a grievance, which the HR director rejected, on the basis that the remarks were office banter. The company’s evidence was that this expression is “quite normal in North East England football circles”, and is treated as a joke.

One-off comment about age held to be discriminatory

In Clements v Lloyds Banking plc and others, the claimant, C, was an employee in his 50s. His manager, who had concerns about his performance, said to him during a conversation “you are not 25 anymore” and suggested moving him to a different role.
C resigned and claimed constructive dismissal following further conduct by the bank.
The tribunal decided that C was constructively dismissed but the dismissal was not tainted by age discrimination. However, the comment about C’s age was discriminatory, showing that a one-off comment can amount to discrimination.

Employee compared to women on “My Big Fat Gypsy wedding” was harassed

In Harper v Housing 21, the claimant, H, complained about the attitude of her line manager, J, towards her Irish nationality.
J’s offensive behaviour included repeatedly likening H to women on the TV programme “My Big Fat Gypsy Wedding”, although J said that her comments were office banter and that she did not intend any malice.
The employment tribunal upheld claims of direct race discrimination, racial harassment and constructive dismissal.

Employee who was the subject of speculation about a relationship with a colleague was harassed

What behaviour amounts to harassment?

Under discrimination law, behaviour will potentially amount to harassment if it is unwanted conduct that has the purpose or effect of:
  • violating a person’s dignity; or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
The term “unwanted” makes it clear that it is up to the victim of the alleged harassment to decide whether or not a particular type of treatment is offensive to him or her personally.
People are different, and what one employee finds hilariously funny may be offensive or degrading to another.
In judging whether or not particular conduct may amount to harassment, it is important to bear in mind that the motive of the “harasser” is irrelevant.
In Furlong v BMC Software Ltd, the claimant, F, complained about a number of incidents, including that a senior vice president of the company groped her bottom and told her “he would like to eat her like a marshmallow”. She was also told by a manager that colleagues suspected her of having a relationship with a married male colleague.
The tribunal upheld the claimant’s various claims including direct sex discrimination and sexual harassment.
It made recommendations to the employer including that it review the equal opportunities training given to managers.

Employee was subjected to harassment compared to banter in “Carry On” films

In Minto v Wernick Event Hire Ltd, a female employee, M, was subjected to daily remarks that were of the same sexual nature as the theme of the “Carry On” films. Her manager gave evidence that banter, including strong language, was an everyday fact of life.
The tribunal found that this amounted to sex discrimination and harassment.
The tribunal said: “‘Banter’ is a loose expression, covering what otherwise might be abusive behaviour on the basis that those participating do so willingly and on an equal level.
It can easily transform into bullying when a subordinate employee effectively has no alternative but to accept/participate in this conduct to keep his or her job.”

“Monkey” comment amounted to harassment

In Basi v Snows Business Forms Ltd, the employment tribunal awarded an employee who worked in sales over £2,000 for office banter that spilt over into racial harassment.
It commented that the office environment was conducive to “healthy banter” but found that the claimant, B, a Sikh of Indian origin, was harassed when he was called a “monkey” or “cheeky monkey” during a golf match at which business matters were discussed.
The employer did have a “rudimentary policy”, but there was “no satisfactory guidance, no training, no monitoring and no policing of this policy”.

My Comment:   I've said before,   I don't just report this stuff,    I sometimes actually experience it.
When I worked in an office,  involved in a mixed group organising an internal seminar,  some young thing made reference to "delegates"  ,   I simply said I thought delegates was a setting on my wife's washing machine....!       You could have heard the  intake of breath 4 floors up !       


My Grateful thanks as always to PERSONNEL TODAY  for their excellent material  see them at:

Travel time and on-call time are treated differently for the purposes of the national minimum wage and the working time legislation.



Some confusion has been caused by the recent European Court of Justice (ECJ) case of FederaciĆ³n .


        The ECJ held that workers with no fixed place of work were “working” when travelling to their first assignment in the morning and travelling back home again at the end of the day.
However, contrary to some reports, the case does not have anything to do with how much people are paid when they are travelling to and from work – as the Court makes explicitly clear in its judgment.
How much an employee is paid – and for what – is primarily a matter of contract. There is no obligation on an employer to pay an employee for each hour of work. For example, many employees work unpaid overtime. There is no doubt that it counts as working time, but that does not mean that they have to be paid for it. What matters is what the contract says.
The only law we have on how much an employee is paid is the National Minimum Wage Act 1998 – with most of the detail now set out in the National Minimum Wage Regulations 2015 (SI 2015/621).
But the law on the national minimum wage does not require each hour of work to be paid at a particular rate. It requires that the average hourly rate of a worker should be at least the level of the national minimum wage.
              So if an employee works for 30 hours in a week and then does 10 hours of unpaid overtime, that is not a problem provided that his or her weekly wage is at least 40 times the minimum wage.
It is important, however, to distinguish between working time for the purposes of the Working Time Regulations 1998 (SI 1998/1833) and working time for the purposes of the national minimum wage. The ECJ decision in Tyco affects only the Working Time Regulations 1998; travel time is dealt with by the National Minimum Wage Regulations 2015 and specifically excludes the journeys to and from home dealt with in Tyco.
There is another area in which the definition of working time for the purposes of the Working Time Regulations 1998 and for the purposes of the minimum wage is starkly different. The ECJ has consistently held that "on-call" time spent by a worker at the workplace will count as working time even if the worker is allowed to sleep when not actually being called on to do work. However, when it comes to the National Minimum Wage Regulations 2015, reg.32 deals specifically with on-call time. It provides that when a worker is required to be available at or near the place of work - but not at home - the time counts towards overall working time. However, it then says that, even if the employer provides the employee with adequate sleeping arrangements, the time counts only when the worker is "awake for the purpose of working". So time spent asleep, while counting for the purposes of the Working Time Regulations 1998, will not count when it comes to the national minimum wage.

My Comment:   this issue will rumble on for a while methinks,   courts,  do not always make things clear,   they merely arrive at a decision on the merits of "a particular case"   WE are left trying to apply the decision to subsequent cases,  with slightly  different issues.   



My thanks to Xperthr  for this excellent and informative piece see more at :

Company directors face criminal charges over redundancies

Former company directors in two separate organisations have been charged with criminal offences relating to their failure to follow redundancy consultation rules. 


The chief executive of retail group Sports Direct, David Forsey, was charged in October with a criminal offence for failing to comply with rules requiring the Secretary of State to be notified about the redundancies of employees in a depot of fashion division USC. About 200 employees were given 15 minutes’ notice by USC that they were to be made redundant.

Under the Trade Union and Labour Relations (Consolidation) Act 1992, notice should be given to the Department of Business, Innovation & Skills by completing a form HR1, if an employer proposes to make 20 or more employees redundant at one establishment within a period of 90 days or less.
                  Failure to do so is a criminal offence and the employer will be liable on summary conviction to a fine. Since 12 March 2015, the fine is unlimited (before that date the maximum fine was £5,000).
                 Under the Act, employers also have a duty to consult with employee representatives at least 30 days before making 20 or more redundancies, or 45 days before making 100 or more redundancies. The Act also requires an employer that is planning to dismiss more than 20 employees in any one establishment, to give the Secretary of State the same periods of notice.
Failure to consult, or to consult properly, could result in a tribunal making a protective award to each employee affected by the failure to consult. The protective award is a punitive award and can be up to 90 days’ actual pay per affected employee.
                The charges against Forsey follow the decision in June 2015 to prosecute three former directors of delivery company City Link, who were charged with offences relating to failure to notify and failure to consult over a plan to make around 2,500 employees redundant. The job losses followed the collapse of the company in 2014. The three former directors will appear in court in November and the tribunal claim is expected to be heard early 2016.
                The company called in administrators on Christmas Eve 2014. A total of 2,356 job losses were announced on New Year’s Eve 2014, with a further 230 redundancies announced the following week. As a result, the Insolvency Service is reported to have paid out some £5 million in statutory redundancy pay to former employees of the company.
                  Roger Bull, partner and head of employment at law firm Burges Salmon said: “The decision to prosecute three former directors of parcel delivery firm City Link serves as an important reminder of the need to follow the correct procedures in redundancy situations.
“Of more immediate significance is the apparent change of approach by the Department for Business, Innovation & Skills in bringing criminal prosecutions against former directors under section 194 of the Trade Union and Labour Relations (Consolidation) Act 1992 for failing to give the Business Secretary sufficient notice of the company’s intention to make redundancies and this demonstrates a desire to hold company officers to account.
“This, and other litigation arising from other recent large-scale insolvencies, has thrown into sharp relief the consequences of getting consultation wrong.”

My Comment:  This of course is big stuff,   for major players,  not likely to affect more modest businesses,  but,    it does represent a salutary lesson,  that employment law is to be taken as seriously as,    say,   your VAT returns,   it can cost your business heavily if you get the procedures wrong,   which is the issue here.    It's not the redundancy,   it's the method used.   




My Thanks to the excellent publication Personnel Today for this,   see them at  :