Thursday, 1 December 2016

CHRISTMAS 2016 EDITION EMPLOYMENT LAW NEWS

My periodic newsletter on all things employment law related that I think you should be aware of.
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Hello  readers and colleagues ,

   Well here we are again, December issue as we approach the festive period.  What a year,  in a shock result we voted to leave the EU,  within a couple of days the Prime Minister resigned, Boris was stabbed in the back by M.Gove, and all the candidates for the leadership gave up before the finishing post and Therese May parachuted in.  The Labour party tried to get rid of its' own leader and couldn't 'cos the membership wanted him,  and then.............. just a few weeks ago, America voted Donald Trump as their next president.........!
(Jeffrey Archer couldn't have got this published as a work of fiction!) 
It makes my list of employment law issues seem quite tame!

On a personal note, I would like to thank you for being one of my readers, and for sticking with me, you are valued!    And, whatever your belief,  I wish you a happy and peaceful festive period for you and your family  and a prosperous new year. 

                      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: 

The ten most significant employment law news stories this year.

This is quite a long read,  grab a coffee and a mince pie and put your feet up,    it includes UBER (yawn!).......  Dismissal for pulling a "sickie" (zzzzzz!)...........courts choosing to ignore ACAS code of practice (  snore !) ..........childcare vouchers during maternity leave  (zzzmumblezzz)    It goes on (and on)  read the full piece though at my blog page,  and keep yourself informed read more






 


Newsflash:
Fair dismissal for refusing to work Christmas:

 An employment tribunal held that a food company employee was fairly dismissed after she refused to do overtime in the run-up to Christmas and complained about being asked to work extra hours, causing discontent among colleagues. Stephen Simpson rounds up recent tribunal decisions.
In Edwards v Bramble Foods Ltd, the tribunal held that an employer fairly dismissed an employee who refused to do overtime and whose protests at being asked to do so threatened to disrupt the business.
A small food company’s busiest period is the eight weeks from mid-September, when it produces and packs goods such as gifts and hampers for Christmas.
Employees’ contracts of employment include a clause requiring them to work extra hours when the business requires.
The company decided to formalise its overtime arrangements, which involved asking employees to choose between four and eight Saturday mornings they could work in September and October.
While the rest of the workforce agreed to work some Saturdays, Mrs Edwards refused to work on Saturday mornings.
read the full story
 
 

And finally tonight ! 

Can an employment tribunal make an order for unreasonable conduct costs against a litigant in person?

Yes, held the EAT in Liddington v 2gether NHS Trust.

The Claimant complained that having made a safeguarding referral she suffered detriment and was eventually unfairly dismissed. A total of three Employment Judges told her that her claims were not adequately particularised (a failure to provide dates was particularly significant since it appeared that some of the alleged acts of detriment actually pre-dated her safeguarding referral).

The Judge accepted that the Claimant was a litigant in person and so should not be held to the standards of a lawyer; however, given the number of earlier hearings at which detailed particulars were sought, her continued inability to provide proper particulars amounted to unreasonable conduct which justified a costs award against her. The Judge specifically considered whether her inability to particularise her case was caused by stress, anxiety or illness, and decided it  was not.

    A case on its own peculiar facts, but it does emphasise that being a litigant in person does not give a 'free pass' when it comes to the risk of being ordered to pay costs.
 
My Thanks to the ever informative Daniel Barnett site for their material  see them at
 

To all who take the time to read my offering, to those who mail in with your questions, and to all my clients and chums who bother to tell me they actually read this stuff,  and find it useful,   my heartfelt thanks !
      May  I wish you a contented and peaceful festive holiday with your families.

Merry Christmas and my very best wishes:
Regards


Paul Murray




 

Additionally:
In you need further in depth help working out what exactly counts as minimum wage,  the DBIS has produced this 55 page guide,
"Calculating the minimum wage"      

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Health& Safety Myths

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

NO ADVICE 'ERE MISSUS!

The enquirer was in a DIY store and asked for some advice on which spotlights to buy as her electrician had given her a connection block size and she wanted to know where to look for the connection box. She also wanted some general advice on what the difference was between various spotlights on the shelf. The store assistant said he could not give any advice due to health and safety because if he did and then the enquirer relied on it and something went wrong he would be liable.

Panel opinion

Nothing in health and safety at work regulations prevents shop assistants providing product information. This company has a general policy that staff do not give detailed advice on matters that they feel are technical in nature unless they are trained to do so – but they do employ an electrician part-time in store to do this. Instead of explaining this policy or involving the electrician, the assistant gave the less than illuminating excuse of ‘health and safety’.

NO TROLLEYS!

A sign on the outside of a card shop read "No Trolleys. Due to health and safety and the size of the store we are unable to allow for trolleys. Sorry for the inconvenience."

Panel opinion

The notice makes clear that the real reason for not allowing trolleys is because of space restrictions – they should have stuck to this clear and simple explanation rather than calling on "health and safety" presumably thinking this would add weight to their argument. The sign is also confusing in that it is only about trolleys – does the same "rule" apply to pushchairs and wheel chairs?

Wednesday, 30 November 2016

Fair dismissal for refusal to work Christmas overtime

An employment tribunal held that a food company employee was fairly dismissed after she refused to do overtime in the run-up to Christmas and complained about being asked to work extra hours, causing discontent among colleagues. Stephen Simpson rounds up recent tribunal decisions.
Fair dismissal of employee who refused to work extra hours before Christmas 
 

In Edwards v Bramble Foods Ltd, the tribunal held that an employer fairly dismissed an employee who refused to do overtime and whose protests at being asked to do so threatened to disrupt the business.
A small food company’s busiest period is the eight weeks from mid-September, when it produces and packs goods such as gifts and hampers for Christmas.
Employees’ contracts of employment include a clause requiring them to work extra hours when the business requires.
The company decided to formalise its overtime arrangements, which involved asking employees to choose between four and eight Saturday mornings they could work in September and October.
While the rest of the workforce agreed to work some Saturdays, Mrs Edwards refused to work on Saturday mornings.
Management had a number of “informal chats” with her to explain that, by sharing the workload fairly, the company would be able to meet the demands of the Christmas period.
Mrs Edwards continued to refuse, stating that she spent Saturday mornings with her husband.
She was dismissed following a number of complaints from colleagues about her behaviour, which included that she had mocked those who had agreed to Saturday overtime (for example by boasting that she would be having a lie in on Saturdays).

Dismissal for overtime refusal: the tribunal’s view

“…she [the claimant] had been given a contract of employment which said that she may be ‘required’ to work additional hours and she had no legitimate reason for refusing what she accepts was a reasonable management instruction. She just didn’t want to do the work it seems.
The consequences for the respondent had the claimant not been dismissed might have been disastrous. The respondent had been extraordinarily patient…Dismissal was unarguably within the range of reasonable responses to a very difficult situation…”
A key reason for her dismissal was the employer’s belief that a number of other employees would withdraw their agreement to work overtime if Mrs Edwards was excused.
The employer was convinced that her behaviour was having an adverse effect on the workforce and that discontent was spreading. It saw her actions as a growing threat to its ability to fulfil orders.
Mrs Edwards claimed unfair dismissal.
The tribunal accepted that there were a number of minor flaws in the employer’s procedure.
Despite this, the employment tribunal had no doubt that dismissal was within the range of reasonable responses.
The tribunal found that it was reasonable for the employer to require Mrs Edwards to do some overtime and she had no legitimate reason for refusing.
The consequences for the employer of not dismissing her could have been “disastrous”.
Read more details of the case and practical tips in the light of the judgment…

MY THANKS AGAIN  to PersonnelToday for this piece  see them at

Can an employment tribunal make an order for unreasonable conduct costs against a litigant in person?


Costs - Litigant in Person

Thanks to Neil Addison of New Bailey Chambers for preparing this case summary
Can an employment tribunal make an order for unreasonable conduct costs against a litigant in person?

Yes, held the EAT in Liddington v 2gether NHS Trust.

The Claimant complained that having made a safeguarding referral she suffered detriment and was eventually unfairly dismissed. A total of three Employment Judges told her that her claims were not adequately particularised (a failure to provide dates was particularly significant since it appeared that some of the alleged acts of detriment actually pre-dated her safeguarding referral).

The Judge accepted that the Claimant was a litigant in person and so should not be held to the standards of a lawyer; however, given the number of earlier hearings at which detailed particulars were sought, her continued inability to provide proper particulars amounted to unreasonable conduct which justified a costs award against her. The Judge specifically considered whether her inability to particularise her case was caused by stress, anxiety or illness, and decided it  was not.

A case on its own peculiar facts, but it does emphasise that being a litigant in person does not give a 'free pass' when it comes to the risk of being ordered to pay costs.
 
My Thanks to the ever informative Daniel Barnett site for their material  see them at

The 10 most important employment law cases this year?

The most significant cases in 2016.    in reverse order:

Moving down to the No. 10 spot:

10. Can an employer require an employee to divorce, in order to keep a job?

Pendleton v Derbyshire County Council and another (EAT)
This was one of the most controversial employment decisions of 2016.
The Employment Appeal Tribunal (EAT) held that the dismissal of a teacher, who is Christian, because of her refusal to end her marriage with a convicted sex offender was religious discrimination.
The EAT surprisingly suggested that a person of faith who believes in the sanctity of marriage can be placed at a “particular disadvantage” if the employer requires him or her to end a marriage with a convicted sex offender.
This is unlikely to be the last employment case in which an employer has to weigh up whether or not to dismiss an innocent employee who works with children because of a third party’s wrongdoing (such as a relative’s conviction for sex offences).

9. Misconduct dismissal for “pulling a sickie”

Metroline West Ltd v Ajaj; Ajaj v Metroline West Ltd (EAT)
This case does not say anything that the seasoned HR professional will not already know about dealing with a malingering employee.
However, the case provides a valuable recap for employers that suspect an employee is faking illness.
The EAT affirmed that an employee who makes up, or exaggerates the effects of, an injury or illness to take fraudulent sick leave is fundamentally breaching the implied term of trust and confidence and can be dismissed for misconduct.
This case reiterates for employers that “pulling a sickie” is a misconduct, rather than a capability, issue.
This means that a dismissal for fraudulent sick leave must be based on reasonable grounds, following a reasonable investigation.

8. Immigration status does not equate to nationality

Onu v Akwiwu and another; Taiwo v Olaigbe and another (Supreme Court)
The wide reach of race discrimination laws has been a lively employment law issue in the last few years.
For example, it is now accepted that someone’s “caste” does come within the definition of race under the Equality Act 2010.
However, the Supreme Court in Onu shied away from extending the definition any further.
The Supreme Court held that the mistreatment of two migrant workers on the basis of their immigration status did not amount to race discrimination.
This case could take on added significance in the next few years if employers find themselves having to dismiss workers who lose the right to work in the UK because of Brexit.

7. Employers must take active steps to provide rest breaks

Grange v Abellio London Ltd (EAT)
This working time case examined the scope of the important right for workers to take a rest break.
The case essentially 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 EAT made it clear 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, it does not matter if the employee has appeared to acquiesce to an arrangement that prevents them taking a break.
An employee in this position can still bring a working time claim.

6. Pay protection can be a reasonable adjustment

G4S Cash Solutions (UK) Ltd v Powell (EAT)
What happens to the pay of a disabled employee who is moved to a new role because he or she is unable to continue in an old role?
In Powell, a maintenance engineer developed back problems and retained his existing terms and conditions, but moved to the lesser role of “key runner”.
However, a dispute arose after his employer said that it would only keep the role, which it said was designed to be temporary, if he agreed to a reduction in pay.
In the engineer’s subsequent disability discrimination claim, the EAT accepted that, while not an “everyday event”, there is no reason why pay protection cannot be a reasonable adjustment as part of a package of measures to get an employee back to work.

5. EAT limits scope of Acas discipline and grievance code

Another case on the Acas code

Holmes v Qinetiq Ltd (EAT)
Phoenix House Ltd v Stockman and another (EAT)
The “Acas code of practice on disciplinary and grievance procedures” applies where an employer is disciplining or dismissing an employee for misconduct or poor performance.
But the application of the Acas code is not so clear cut where the reason for the action falls within “some other substantial reason” for dismissal. For example, what if an employee is dismissed because of a “breakdown in working relationships”?
In Stockman, the EAT held that employers do not have to follow the Acas code where there is “some other substantial reason” for dismissal.
This decision is controversial because it appears to conflict with the EAT decision in Lund v St Edmund’s School, Canterbury.
This conflict means that it is only a matter of time before we see another case on the application of the Acas code where there has been a breakdown in trust and confidence.

4. Holiday pay must include commission

British Gas Trading Ltd v Lock and another (Court of Appeal)
No employment law year would be complete without a case about the calculation of holiday pay.
In Lock, the Court of Appeal followed the trend in recent years by accepting that holiday pay must include more than just base pay.
In this case, the Court of Appeal concluded that the Working Time Regulations 1998 can be interpreted to require results-based commission to be included.
British Gas is expected to appeal the decision one last time to the Supreme Court.

3. Childcare vouchers during maternity leave

Peninsula Business Services Ltd v Donaldson (EAT)
This decision back in March required employers to examine how their childcare vouchers scheme handles maternity leave.
HM Revenue & Customs (HMRC) advice has traditionally been that it is unlawful for an employer to make the suspension of childcare vouchers scheme membership during maternity leave a prerequisite of joining.
Peninsula’s childcare vouchers scheme was the subject of a legal challenge because its scheme requires employees to agree to suspend their membership during maternity leave.
The employment tribunal decision that Peninsula’s childcare vouchers scheme was discriminatory was overturned by the EAT.
The EAT found that employers that make deductions from an employee’s salary in return for childcare vouchers do not have to continue to provide the vouchers during maternity leave.
According to the EAT, the position is different if childcare vouchers are provided in addition to the employee’s salary. If this is the case, they are a benefit and must continue during maternity leave.

2. First tribunal decision on shared parental leave

Snell v Network Rail (employment tribunal)
There was a great deal of excitement (and trepidation) among HR professionals when news broke in early October of the first employment law decision on shared parental leave.
When shared parental leave was introduced, one of the biggest concerns was how much employers that enhance maternity pay should pay those on shared parental pay.
The general consensus was that employers that enhance maternity pay but not shared parental pay could be risking a sex discrimination claim from a man.
Network Rail went one step further by differentiating between the mother and partner in the provision of enhanced shared parental pay.
The employment tribunal concluded that paying a male Network Rail employee only the statutory minimum shared parental pay, while his wife (also a Network Rail employee) received full pay, was blatantly discriminatory.
The case cost Network Rail over £28,000, prompting nervous HR professionals up and down the land to check their own shared parental leave policies.

And the number one employment law case of 2016 is…

Aslam and others v Uber BV and others (employment tribunal)
The highest-profile employment case of 2016 was undoubtedly this successful bid by Uber drivers to be recognised as “workers” and not self-employed.
While the case is not binding and is likely to be appealed, it is the first in what will be a line of cases dealing with employment status in the gig economy.
The employment tribunal accepted without hesitation that the drivers are workers, giving them access to some employment rights such as to receive the national minimum wage and be paid annual leave.
In its extraordinary judgment, the employment tribunal severely criticised Uber for the lengths it went to mask the true nature of its relationship with its drivers.
Despite the one-sided nature of the decision, Uber is expected to appeal to the EAT.

My grateful thanks to: those nice people at Personnel Today for their copy and always informative reports,  see them at

Tuesday, 1 November 2016

NOVEMBER 2016 Edition Employment Law News

My periodic newsletter on all things employment law related that I think you should be aware of.
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Hello  Dear Readers , colleagues and chums,

Top story this week,  in employment terms,  is of course the UBER case.  You cannot have avoided this piece of news, but for the actual impact.......... we'll have to wait.  UBER are a huge international company,  and they are certain to appeal. As I always opine,  do remember this is not a change in legislation, merely one inferior court's interpretation of a particular case. The next more senior court up the chain, so to speak, may well take the opposite view,  and there are several levels to go !        
Unusually for them, The CBI have made a proposal to increase the level of maternity benefit (extending paid to a full 52 weeks) completely contrary to their stance in 2005 when they stated that increasing mat leave would be an "intolerable burden" on employers!        Who's in charge at the CBI I wonder?  


    Read on for details of this months reports 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:

UBER Tribunal decision   
An Employment Tribunal has, this afternoon, ruled that two drivers who provide services to gig economy stalwart Uber are 'workers' within the meaning of the Employment Rights Act 1996.      
This means they will be entitled to a limited number of employment rights (but not those accruing to 'employees' - which this case was not about).  Amongst other rights, they will be entitled to:-


5.6 weeks' paid annual leave each year 
a maximum 48 hour average working week, and rest breaks
the national minimum wage (and the national living wage)
protection of the whistleblowing legislation.
As they are not employees, they will not be entitled to:-
·         the ability to claim unfair dismissal
the right to a statutory redundancy payment
the benefit of the implied term of trust and confidence
·         the protection of TUPE, if Uber sells its business

Of course, it is virtually certain that this tribunal decision will be appealed up and up, potentially to the Supreme Court.  So, for now:-
1.  any Uber drivers should bring tribunal claims on the assumption they are 'workers', and ask for the hearings to be stayed (put on hold) pending any appeals of today's decision
2.  although this decision is fact-specific, and based on Uber's business model, it increases the chance of other 'gig economy' companies facing claims that their 'contractors' have worker status.  Watch this space.
 
My Comment:  As I always point out,  significant though this is, it is NOT a change in the law, it is one court's interpretation of existing legislation.   Another court may see it differently,  and as this Tribunal is what is affectionately known as an "inferior" court, it's findings are not binding on other courts,  they are merely, persuasive argument .    And as the text says,  this is bound to be appealed .
My thanks to HR Magazine for the piece see the article on my blog page

 
Newsflash:

Do CBI's plans risk "throwing the baby out with the bath water"?
Experts weigh in on the Confederation of British Industry (CBI)'s maternity leave extension plans. The CBI's call for the government to extend paid maternity leave has been criticised by some for not going far enough, while others warned of potential negative impacts. 
The CBI has, as part of a wish list released in the run-up to the autumn statement, called on the government to extend statutory mandatory pay to 52 weeks. The Invest for the future – business priorities for Autumn Statement 2016 release asks the government to close the gap between maternity pay and childcare support (part-funded through vouchers) by extending statutory mandatory pay and providing 15 hours of free childcare to all children aged one to four.  But Suzanne Horne, partner and employment lawyer at Paul Hastings, expressed concern that this increase could expose more women to pregnancy discrimination. “Current UK maternity leave laws are some of the most generous in the world, with women receiving up to 39 weeks' statutory maternity pay and 52 weeks' maternity leave,” she explained. “Comparatively the current minimum maternity leave requirement under the EU Pregnant Workers Directive is only 14 weeks.
“The CBI risks throwing the baby out with the bathwater by urging the chancellor to extend paid maternity leave. It is highly likely that this would actually increase the risk of pregnancy discrimination against women as it would place too heavy a burden on employers.”
MY Comment:  As ever my thanks to HR Magazine for this piece,  see the full item on my blog page
 
 

And this,   just in: 

A change in the weather: TUPE and the weather presenters
 
What do the cases of BBC weather presenters and Bake Off hosts remind us about employment law?
Last month it was announced that MeteoGroup will take over the Met Office contract to provide
weather services to the BBC. What would happen when the contract moved became a popular topic – would some of Britain’s best-loved faces remain on our screens? Or would we have to get used to a whole new set of presenters?        
The answer to this depends on who actually employs the presenters. If they are already employed by the BBC when the service transfers it is unlikely that the change to MeteoGroup will affect their employment. On the other hand, those employed directly by the Met Office may have their employment transferred to MeteoGroup under the Transfer of Undertakings (Protection of Employment) Regulations 2006 ('TUPE') when the weather services contract transfers.
TUPE applies where immediately before the change of service provider there is an organised grouping of employees situated in the UK whose principal purpose is to carry out the relevant activities on behalf of the client (the BBC), and where the activities remain fundamentally the same after the change of contractor. Where TUPE applies, employees assigned to the service that is transferring automatically become employees of the new service provider from the point of the transfer. They transfer on the same terms and conditions of employment (although there are some exceptions, such as with pensions).
The good news for Carol Kirkwood fans is that she is actually a BBC employee. This means the change of service provider is unlikely to affect her employment (although she should still be informed and consulted about any changes that affect her resulting from the change in service provider).
It appears that other favourites, such as Tomasz Schafernaker, are employed by the Met Office. Their employment will transfer to MeteoGroup on the same terms and conditions so we can still expect to see them on our screens. However, these presenters could object to transferring to MeteoGroup. This would mean their employment would come to an end, but they would not be able to claim unfair dismissal or breach of contract. It could also mean that we won’t see them presenting on the BBC any more (unless they reach an agreement for the BBC to employ them directly).
The ability to object to a transfer can be hugely problematic when trying to retain key talent. There is nothing a company can do to stop an employee leaving. As the individual’s contract does not transfer the new employer will not generally be able to enforce any contractual post-termination restrictions, meaning that the employee could be free to work for a rival employer.
 
Often one of the only ways to retain top talent is for the employer to cough up cash after the transfer. However, this will not always work. Although probably not a TUPE scenario, Channel 4 is an example of where offering plenty of dough has not not proved successful. Although Channel 4 bought the rights to the Great British Bake Off, only one of the four presenters (Paul Hollywood) has agreed to remain with the show as it moves from the BBC to Channel 4.    Read the full piece on my blog
My thanks to HR Magazine for this excellent and informative piece by :  Katie Mahoney,   Katie is solicitor at Doyle Clayton     see the original article:

Download of employee pay rates,  NMW, "living wage" and other benefit entitlements:

Additionally:
In you need further in depth help working out what exactly counts as minimum wage,  the DBIS has produced this 55 page guide,

"Calculating the minimum wage"     
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Health& Safety Myths

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

Case 400 :Babies dummy cafe ban

 

ISSUE :  A mum had to leave a café as the manager banned the use of dummies for young children and babies for health and safety reasons.

Panel opinion

Health and safety at work legislation does not stop babies using dummies in cafes. This appears to be the café’s company policy which according to the press article they relate to strict food hygiene guidelines.The cafe should clearly explain the reason behind their policy rather than dumbing down the issue and blaming health and safety.

Case 399 - School leaver’s party

Issue

School leaver’s party organised by parents in a village hall stated that 'one parent per  child must attend the party - due to health & safety reasons'.

Panel opinion

There is no work activity involved here: it’s simply a party organised by volunteers, so workplace health and safety legislation does not apply.  But, it’s their party and they can set their own ground rules if they want to.
 

Case 401 - Banned from using antibacterial wipes

Issue

An employee was advised that using antibacterial wipes to clean inside vehicles could lead to the development of a ‘superbug’.

Panel opinion

Superbugs are a real cause for concern for everyone, but the use of chemical disinfectants in antibacterial wipes is not going to make the situation worse when used correctly. The advice on the use of antibacterial wipes is to use one wipe per surface and then discard to avoid potentially spreading any bacteria to other surfaces. They are effective for the purpose being proposed, and seem like a sensible choice.