Tuesday, 2 May 2017

MAY 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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                                        EDITORIAL

Hello  Dear Readers, ,

Last month I made a reference to Douglas Fairy,  and more than one person has asked me "who is Douglas Fairy ?"     I sometimes forget how old I am!   Douglas was a columnist in a weekly magazine call "WEEKEND"  in the '60s & '70s.   He used to write a column called "The sound and the Fury",    he was uncompromising in his opinion,  took no prisoners in his condemnation of bad conduct in public office and would exclaim his despair at the state the country was in.   I would soak up every word!   Oh would that I could write like him.   Of course he wouldn't be allowed these days,  he would be bound to upset someone!  God bless him.  

           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: 

Sexism among local councillors at “1970s” levels

Female councillors face a culture of sexism “which would not be out of place in the 1970s”, according to Dame Margaret Hodge MP, co-chair of the Local Government Commission.

The commission, which has today released interim findings of a year-long study led by the Fawcett Society in partnership with the Local Government Information Unit (LGiU), has reported that sexism is commonplace in local government with almost four in 10 female councillors having experienced sexist comments from within their own political party.
The survey of more than 2,300 councillors also found that one-third of female councillors have experienced sexist comments in the council chamber, and 43% say they are held back by assumptions about what they can do just because they are women.
A shocking 10% have experienced sexual harassment from other councillors.
Dame Margaret Hodge, co-chair of the commission, said: “We are seeing a culture in some parts of local government which would not be out of place in the 1970s.

My Comment,   I'm not at all surprised,  we still have a way to go!   read the full piece on my blog         My thanks to Personnel Today for this article  see them at

 
Newsflash:
 

  £2 award after employer turns down employee’s chosen companion  

 

In Gnahoua v Abellio London Ltd, the employment tribunal held that the employer breached the claimant’s right to be accompanied when it refused to allow his chosen companions to accompany him at a disciplinary appeal hearing.
However, the tribunal awarded compensation of £2 only, on the basis that the employer had understandable reasons for the refusal.Disciplinary proceedings were brought against Mr Gnahoua, a bus driver who was caught looking at an iPad while his bus was in motion.
He was represented at his disciplinary hearing by a Unite official. The decision was taken to dismiss him.
Mr Gnahoua appealed and informed his employer that he wished to be accompanied by two brothers who had formed the PTSC union, of which the claimant had become a member.
The employer indicated that, while it was happy with someone else from the PTSC union attending, it had banned both brothers from representing its staff at hearings.
The reasons given by the employer for the ban were one brother’s “threatening behaviour” towards members of staff and both brothers’ “dishonesty”.
One of the brothers had been an employee of the company, but had been dismissed for “harassment and intimidation” of another member of staff, a shop steward with Unite.
After the brother’s dismissal, he brought an employment tribunal claim. However, the claim, in which his brother represented him, was struck out after the brothers were accused of falsifying the date on a witness statement.

My Comment:   seems about right to me !     read the full piece on my blog  and thanks to Personnel Today for their always good material

 

 

 

And this,   just in: 

Working Time: Sleeping At Work
Are workers entitled to the national minimum wage when 'on-call', or sleeping, at work?  In a comprehensive decision, the EAT decides 'it depends'.      
In three cases heard at the same time (with the lead case being Focus Care Agency v Roberts), Simler P. considered whether three tribunals had correctly decided whether 'sleep-in' time counted as 'time work' for the purpose of the National Minimum Wage Regulations.  Although conscious of the importance of this issue for employers and employees (in no small part because of the risk of criminal sanctions if the employer gets it wrong), the EAT was unable to give a straight 'yes' or 'no' answer.  Indeed, it disapproved of the approach sometimes adopted of cases where a worker is working merely by being at the premises, and cases where the worker is provided with accommodation and is simply on-call.Rather, it held, a multi-factorial approach is required - giving considerable weight to the facts of any individual case and thus considerable leeway to an individual employment tribunal to decide.  The four factors are set out at paragraph 44 of the judgment (they are too long to reproduce in this brief summary).     read the full piece on my blog page


My Comment:  this is quite an old chestnut,   and it would seem we still don't have a definitive answer,  saying
"it depends"     is not a lot of help,   and would have expected a more erudite view from such a source as the EAT.     But there you go,  we struggle on as best we can!           My thanks to Daniel Barnett once again for the root material. 


 

 


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

Issue

Enquirer asked to put their own salt and vinegar on their take-away fish and chips (to get the amount right) but was told that customers could not put their own salt and vinegar on meals due to "Health and Safety". Inquiring further they were told that they could not be sure where customers' hands had been.

Panel opinion

Food safety concerns lie behind this decision not to let customers use salt and vinegar shakers which the chippy uses. The problem could be easily solved by the provision of separate shakers for customers to use or by providing salt and vinegar in sachets.

 


Issue

Enquirer bought a bottle of champagne in a pub and was told by the member of staff that he was not allowed to open it himself "because of health & safety".

Panel opinion

This is a corker! Health and safety at work regulations do not prevent people opening bottles of champagne. The pub chain is more likely to be concerned about the potential for spraying the decor and if so, the real reasons should have been communicated to the customer rather than using health and safety as an excuse to be party poopers.

 Issue

A company sought to secure a contract to carry out maintenance to coffee machines. They failed the contractor's assessment process because all their health and safety training is run in house and the contractor's assessment only recognises accredited training

Panel decision

The panel recognises that large contractors in the construction industry have a duty to ensure that its sub-contractors are properly trained before going onto site. However in this case, we believe insistence that a sub-contractor which is engaged to service its drinks vending machines must have their training validated by third party accreditation at its own cost, when they can already demonstrate that they have conducted equivalent training, is disproportionate and inflexible

 The information contained in these pages is an HR overview and not intended to be comprehensive legal advice, always seek specific qualified advice before taking any action that could lead to litigation.   Equally, were we have provided links to external web pages, we are not responsible for the content of other sites.

Copyright © 2017 paul murray HR consultant, All rights reserved.
I send this to all my valued clients, colleagues and people I've actually spoken to, if you find this an intrusion, my apologies, please just unsubscribe.

                       

Sexism among local councillors at “1970s” levels



Female councillors face a culture of sexism “which would not be out of place in the 1970s”, according to Dame Margaret Hodge MP, co-chair of the Local Government Commission.

The commission, which has today released interim findings of a year-long study led by the Fawcett Society in partnership with the Local Government Information Unit (LGiU), has reported that sexism is commonplace in local government with almost four in 10 female councillors having experienced sexist comments from within their own political party.
The survey of more than 2,300 councillors also found that one-third of female councillors have experienced sexist comments in the council chamber, and 43% say they are held back by assumptions about what they can do just because they are women.
A shocking 10% have experienced sexual harassment from other councillors.
Dame Margaret Hodge, co-chair of the commission, said: “We are seeing a culture in some parts of local government which would not be out of place in the 1970s.
“This in turn is linked to the under-representation of women in local government where we have seen very little progress over the past 20 years.”
Women’s representation in local government remains low. Only 33% of elected local councillors in England are women, an increase of just five percentage points since 1997. Over the same period, the proportion of women in Parliament has increased from 18% to 29%.
The number of women council leaders has barely changed either, up from 14% to 17% in 10 years.
The commission finds that slow progress is exacerbated by many councillors remaining in office for significant periods of time. In 2016 men were 1.6 times more likely to be long-term incumbent than women. Of those who have been in office for 20 years or more, there were three men for every one woman.
We are seeing a culture in some parts of local government which would not be out of place in the 1970s. This in turn is linked to the under-representation of women in local government where we have seen very little progress over the past 20 years” – Dame Margaret Hodge
Other key findings include:
  • women were most under-represented in the under-35s, where there were 3.5 times as many men as women;
  • 35% of councillors are aged between 65 and 74, and in this age group there were two men for every woman;
  • women are most likely to be elected to their local council in the North East and least likely in the South East;
  • 28% of women reported childcare as a barrier, compared with 18% of men;
  • 43% of women councillors experienced assumptions about what they could do based on their gender, compared with only 11% of men; and
  • women councillors are no less ambitious, with 45% of women and 47% of men saying they want a more senior role in the council.
Sam Smethers, Fawcett Society chief executive, said: “Women councillors from all major parties are reporting sexism and sexual harassment from within their own parties and from other councillors. This problem is not confined to one party, and is commonplace across local government.
“We are sadly used to hearing about the misogyny our politicians experience from the public via social media, but this research shows that they are also experiencing it from within their own parties, including their male council colleagues. ”
The Local Government Commission’s final report will be published in the summer, making recommendations to address key issues faced by women councillors and the barriers to female representation in local government.
The LGiU undertook an online survey of councillors on behalf of the commission. The survey was in the field in December 2016 and January 2017 and was sent to all councillors (male and female) in England and Wales.

My Comment,   I'm not surprised!     we still have a way to go.

£2 award after employer turns down employee’s chosen companion



An employment tribunal has awarded just £2 to a claimant whose choice of companion for his disciplinary appeal hearing was vetoed by his employer.

In Gnahoua v Abellio London Ltd, the employment tribunal held that the employer breached the claimant’s right to be accompanied when it refused to allow his chosen companions to accompany him at a disciplinary appeal hearing.






However, the tribunal awarded compensation of £2 only, on the basis that the employer had understandable reasons for the refusal.

Choice of companion: tribunal’s view

“Like all strict rules, there are policy reasons for its imposition which can sometimes lead to hard cases.
“As a general rule it is undesirable for an employer to choose the employee’s companion or (which is often very much the same thing) to exercise a veto over his choice.
“In the present case it is hard to criticise the actions of the respondent and we make no criticism. They have followed the Acas code of practice and have only sought to interfere in the choice of companion on strong grounds.”
Disciplinary proceedings were brought against Mr Gnahoua, a bus driver who was caught looking at an iPad while his bus was in motion.
He was represented at his disciplinary hearing by a Unite official. The decision was taken to dismiss him.
Mr Gnahoua appealed and informed his employer that he wished to be accompanied by two brothers who had formed the PTSC union, of which the claimant had become a member.
The employer indicated that, while it was happy with someone else from the PTSC union attending, it had banned both brothers from representing its staff at hearings.
The reasons given by the employer for the ban were one brother’s “threatening behaviour” towards members of staff and both brothers’ “dishonesty”.
One of the brothers had been an employee of the company, but had been dismissed for “harassment and intimidation” of another member of staff, a shop steward with Unite.
After the brother’s dismissal, he brought an employment tribunal claim. However, the claim, in which his brother represented him, was struck out after the brothers were accused of falsifying the date on a witness statement.
Mr Gnahoua ultimately attended his appeal hearing without representation. The decision to dismiss was upheld.
His tribunal claims included that he had been denied the right to be accompanied at his disciplinary appeal hearing.
The employment tribunal accepted that, technically, the employer had breached the claimant’s right to be accompanied.
Previous case law (Toal and another v GB Oils Ltd and Roberts v GB Oils Ltd) has made it clear that, as long as the companion meets the statutory definition (ie is a fellow worker or a trade union official), the choice of companion should be the employee’s.
However, the employment tribunal went on to award the nominal sum of £2 because the employer had “strong grounds” for being unhappy with the choice of companion.

My Comment:  seems about right to me,  but let's not forget what it would have cost the employer to get this decision!        My thanks to Personnel Today for this piece,    see their page

Working Time: Sleeping At Work




Working Time: Sleeping At Work

Are workers entitled to the national minimum wage when 'on-call', or sleeping, at work?  In a comprehensive decision, the EAT decides 'it depends'.       

In three cases heard at the same time (with the lead case being Focus Care Agency v Roberts), Simler P. considered whether three tribunals had correctly decided whether 'sleep-in' time counted as 'time work' for the purpose of the National Minimum Wage Regulations.  Although conscious of the importance of this issue for employers and employees (in no small part because of the risk of criminal sanctions if the employer gets it wrong), the EAT was unable to give a straight 'yes' or 'no' answer.  Indeed, it disapproved of the approach sometimes adopted of cases where a worker is working merely by being at the premises, and cases where the worker is provided with accommodation and is simply on-call.

Rather, it held, a multi-factorial approach is required - giving considerable weight to the facts of any individual case and thus considerable leeway to an individual employment tribunal to decide.  The four factors are set out at paragraph 44 of the judgment (they are too long to reproduce in this brief summary).

If you advise employers (or are an employer) which engages workers who sleep at night, read paragraph 44.  The remainder of the decision shows how the principles can be applied to different factual situations.

My Comment:  this is quite an old chestnut,   and it would seem we still don't have a definitive answer,  saying
"it depends"     is not a lot of help,   and would have expected a more erudite view from such a source as the EAT.     But there you go,  we struggle on as best we can!           My thanks to Daniel Barnett once again for the root material.