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Employment Law Changes – Are You Ready?

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From 6th April 2020 all new employees, but also workers/joiners to a company, will have the right to a written statement of terms on or before the first day of employment, whereas it is currently for employees only and within two months of employment starting. This change has been brought about by an amendment to the Employment Rights Act 1996 as a result of the introduction of The Employment Rights (Employment Particulars and Paid Annual Leave)(Amendment) Regulations 2018.

Do you know what needs to be included in a written statement of terms? It does not necessarily have to be a formal contract of employment but there is prescribed information that must be provided, much sooner than previously and now to workers as well as employees.

There is a right for employees and workers to bring Employment Tribunal claims if the organisation engaging them fails to do this.

The Government has said that the intention is to ensure that workers can access fair and decent work, that both employers and workers have clarity on the employment relationship, and that the enforcement system is fair and fit for purpose. Above all, the direction of travel is to protect vulnerable workers and improve workers’ understanding of their rights.

The best way to ensure compliance is to have a properly drafted contract of employment that is ready to pass to a worker or employee at the latest on the day they start work. If you ask us to prepare the contract we can include all the requirements and information that an employer is obliged to give. The new Regulations include additional information that must now be provided. For example, probationary period details and days of the week worked must be provided for those starting work after 6th April.

There is information that the Regulations state the employer can choose whether to put in the main written statement of terms (contract) or in “reasonably accessible document(s)” but the following information must be provided:-

  • Terms for absence due to incapacity and sickness and the position regarding sick pay.
  • The notice periods for termination.
  • Information relating to grievances and disciplinary.
  • Terms relating to pensions and pension schemes.

Even if there is not a legal requirement to contain certain information in the written statement of terms it may be advisable to have additional terms to protect your business, for example post termination restrictions.

Contact us to arrange an appointment with Jenny Carpenter, specialist employment solicitor and partner to discuss your requirements.

Discrimination Claims Against Employers.

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It is the Equality Act 2010 that establishes the ability to bring action for unlawful discrimination. It is only in relation to a “protected characteristic” that action can be brought. The reason for the unfavourable treatment/discrimination must be due to a “protected characteristic” for the individual to be afforded protection under the act. So what is a “protected characteristic”? The Act dictates that the following are:-

  • Age
  • Disability
  • Gender reassignment
  • Marriage and Civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

Each protected characteristic has a statutory definition under the Act and therefore must be looked at carefully before unlawful discrimination can be established. Interpreting the meaning of each protected characteristic gives rise to various case law.

A recent case heard by an Employment Tribunal on 10th September 2019 (Conisbee v Crossley Farms Ltd and others) held that vegetarianism was not a “belief” qualifying for protection under the Act. Mr Conisbee alleged that he had suffered discrimination on the ground of religion or belief, his belief being vegetarianism. The Employment Tribunal held that although his belief was genuinely held and was worthy of respect in democratic society it failed to meet the other legal hurdles for protection under the Act. In their judgement the Tribunal ruled that it did not have a similar status or cogency to religious beliefs.

This decision does not have to be followed by other Tribunals in the future but is an interesting approach to what amounts to a “belief” for the purpose of the Equality Act 2010.

Who is protected? Under the Act there is a wide range of potential claimants for discrimination claims. This includes the following:-

  • Employees
  • Job applicants
  • Contract Workers
  • Agency Workers
  • The police
  • Individuals in a business partnership

If you consider you have suffered unlawful discrimination then please seek our advice. Do not delay. There are strict time limits for bringing a claim to an Employment Tribunal, whereby claims must be brought within three months of the date the discrimination occurred.

Jennifer Carpenter
Employment Specialist solicitor

What Should You Be Paid Whilst On Holiday?

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We are currently in the midst of a very popular time to take annual leave from work, but the law regulating and dictating what someone should be paid whilst on holiday from work is far from clear.

The Working Time Regulations 1998 (“the Regulations”) state that all workers have the right to 5.6 weeks paid leave each year. This equates to 28 days for a full time worker, including all public and bank holidays of which there are 8 each year. However, some workers are entitled, possibly under a contract of employment, to annual leave in excess of the statutory minimum.

Under the Regulations workers are entitled to be paid during statutory annual leave at a rate of a week’s pay for each week of leave. The question then is what is a “week’s pay”? How it is calculated depends on a number of factors and in particular distinction is made between a worker with normal working hours and those with no normal working hours. However, recent cases in the European Court of Justice that have been applied in the Employment Appeal Tribunal have stated that a worker needs to receive their “normal remuneration” during periods of statutory annual leave. This means that the way in which we calculate a week’s pay under the Employment Rights Act 1996 in the UK is incompatible with The Working Time Directive.

Article 7 of the Working Time Directive states that workers must have the right to “paid annual leave” but dos not state how this should be calculated. In the case of Williams and others v British Airways Plc [2011] the European Court of Justice held that a worker is not just entitled to basic pay but any remuneration that is “intrinsically linked to the performance of the tasks which the worker is required to carry out under his contract of employment and in respect of which a monetary amount, included in the calculation of his total remuneration, is provided”. Also those that relate to the “personal and professional status” of the worker. This would include payments relating to a worker’s seniority, length of service and professional qualifications.

The idea is that you should not be worse off financially as a result of exercising your statutory right to take holiday. With this in mind contractual commission and bonuses should be taken into account when calculating a week’s pay for the purpose of holiday pay. Otherwise you could be deterred from taking time off work due to the financial disadvantage you would be in. This was confirmed in the case of Lock v British Gas Trading Ltd and others [2014].

So, if your pay packet is lighter because you have taken some holiday this month or last it is possible that your employer has not correctly calculated your holiday pay. You may have a claim for the difference in pay. If you wanted to consider pursuing a claim seek our advice quickly as there are strict time scales for bringing such claims.

Jennifer Carpenter

Employment law specialist solicitor

Do You Need To Watch Your Behaviour At The Work’s Christmas Do?

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Generally speaking in employment law terms if you attend a social event organized by your employer, with work colleagues this is considered an extension of the work place, even if it does not take place at your normal place of work. This means that the normal rules of conduct and behaviour apply. Those committing any misconduct, for example swearing, shouting, abusive language or violent or threatening violent behaviour can be subjected to disciplinary action as if it had occurred in the work place.

The Equality Act 2010 makes employers liable for acts of discrimination, harassment and victimization carried out by their employees in the course of employment, unless they can show that they took reasonable steps to prevent such acts.

Some examples of cases that have previously been brought are:

The Chief Constable of the Lincolnshire Police v Stubbs and other where a police officer complained of sexual harassment by colleagues in a pub outside working hours. The Employment Appeal Tribunal stated that social events away from the police station involving officers from work either immediately after work, or for an organized party fell within the remit of during the “course of employment” and as such the employer was responsible for the actions of the staff member carrying out the harassment. This is known as vicariously liable.

In the case of Bellman v Northampton Recruitment a drunk Managing Director caused serious injury to a sales manager when assaulting him at a Christmas party. The employer was vicariously liable for the assault.

Case law has established though that what happens after the official Christmas party, even if with work colleagues is not the employer’s concern.

As an employer it might be worth reminding staff that normal work rules apply at the party/event. Any grievance raised by a staff member about an occurrence at the office party should be treated seriously and no less seriously because it occurred outside normal working hours.

As an employee, whilst you may want to let your hair down, you should still be on your best behaviour to avoid any implications for your job. You should also ensure that you make it to work after the party. Employers can take disciplinary action for non-attendance, even if it is as a result of a work social event the night before. Employers should treat all employees in this situation the same though. An employer can only make a deduction from wages for arriving late to work if the contract of employment permits this.

 

For advice on all areas of employment law, for employers and employees contact Jennifer Carpenter our employment specialist solicitor.

Equal Pay For Equal Work

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As long as 45 years ago measures were first introduced in the UK to address the difference in pay between men and women carrying out the same or similar work. It is considered, however that only limited progress has been made in bridging the gender pay gap.

Up until the end of September 2014 the framework for policing gender pay issues was contained in the Equality Act 2010 which draws together the protection from the previous Equal Pay Act 1970 and the Sex Discrimination Act 1975.
A scheme of voluntary reporting was put in place for employers to publicise their pay but this appears to have been insufficient in order to promote pay transparency and attempting to achieve equal pay for equal work regardless of gender.

Since October 2014 there has been a new sanction for employers in place that Employment Tribunals can order if employers are found to have breached equal pay legislation. This sanction requires employers to carry out an equal pay audit and to make public the results.

Average pay for men is greater than that for women. The Office for National Statistics revealed that in 2016 the gap was 9.4% for full time employees (the lowest since records began in 1997, when the gender pay gap was 27.5%). The gap for all employees was 18.1%. This is because a higher proportion of women work part-time (41%, compared to only 11% of men), and part-time workers (both men and women) earn less per hour on average than their full-time counterparts.

The General Pay Gap Regulations came into force on 6 April 2017 and apply to large private and voluntary sector employers. This is defined as employers with 250 or more employees on 5th April each year.

Employers must publish their gender pay gap information on their own website and retain it on line for at least 3 years. The information also has to be uploaded to a government website.

If you consider you are being paid less than a colleague of the opposite sex in your work place when you are undertaking equal work you may have a claim under the Equality Act 2010. The work, when being compared, must fall into at least one of the following three categories – “like work”, “work rated as equivalent” and “work of equal value”.

We can advise you as to whether you are likely to have a successful equal pay case. If you are successful the Tribunal or court can make a declaration of your rights and/or require arrears to be paid. A declaration forces your employer to pay the same as your opposite sex counter part. Arrears can be paid for a period up to six years before your claim.

Refund of Employment Tribunal Fees

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The Lord Chancellor has provided an update on employment tribunal fees to the House of Commons Justice Committee. A large number of potentially eligible people have apparently failed to apply since the refund scheme was rolled out in November last year, following the abolition of Tribunal fees. The Ministry of Justice is therefore writing to affected people in order to raise awareness. The first batch of 2,000 letters was issued on 9 April 2018.

If you paid a Tribunal fee in the past then it is likely you can apply for a refund. See our previous blog dated 24th October 2017. Should you require assistance with this process then please contact us.

Recover Tribunal Fees Previously Paid

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Following the Supreme Court judgment on Employment Tribunal fees an announcement has now been made on the first stage of the scheme  to be reimbursed fees paid whilst the fee regime was operational.

Up to around 1,000 people will now be contacted individually and given the chance to complete applications before the full scheme is opened up in the coming weeks.

If you paid a fee as well as being refunded this you will be entitled to interest of 0.5%, calculated from the date of the original payment up until the refund date.

The opening phase of the refund scheme will last for around 4 weeks. If you wish to register an interest in being refunded Tribunal fees paid we can assist and pre-register your refund request.  Contact us at enquiries@adams-harrison.co.uk.

Employment Tribunal Fees Abolished

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A fee regime was in place from 29th July 2013 whereby fees had to be paid upon issuing a claim before an Employment Tribunal and upon the case going to a full trial. The fee for issuing a claim was either £160 or £250, depending on the type of claim. The hearing fee was £230 or £950. On 26th July 2017 a judicial review case was heard at the Supreme Court brought on an application by Unison against the Lord Chancellor. The Supreme Court declared that fees in the Employment Tribunal and Employment Appeal Tribunal were unlawful, under domestic and EU law. It quashed the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. The Supreme Court determined that the fee regime effectively prevented access to justice and was a breach of common law and constitutional rights. It was also held that it was indirectly discriminatory to have fees contrary to the Equality Act 2010.

As a result of this case all claims brought before an Employment Tribunal from now on will not incur a fee. It also means that that those Claimants that incurred fees at anytime during the four year period whilst the fee regime was in place are entitled to a refund. The detailed arrangements for recovering previously paid fees was due to be announced in September but the scheme has yet to be revealed.

There is now the potential for reinstatement of claims that were rejected by the Employment Tribunal as a result of a failure to pay the correct fee. There is also legal argument for allowing claims out of time on the basis that the Claimant could not afford to bring the claim when fees, that have now been held to be unlawful, were in place.

If you have any queries about fees or past or current claims our employment law expert, Jenny Carpenter can assist.

What Should Be Included In Holiday Pay?

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There has been a significant amount of cases addressing the question of what it is appropriate for an employer to pay for periods of statutory annual leave. The position is clear and straightforward where the employee receives a regular wage, or even if the hours or wage are irregular it is clear from the Working Time Regulations 1998 that average remuneration should be calculated over the previous 12 weeks prior to leave being taken. The position is more complex though when the employee/worker receives additional contractual payments as part of their remuneration to include bonuses, overtime and commission.

The Court of Appeal decision in the British Gas Trading Ltd –v- Lock and another case has now been reported. The Court of Appeal has upheld the Employment Appeal Tribunal decision that where an employee receives an element of results-based commission as part of their pay this should be included when they are on statutory annual leave. However, the case does not specify how this should be calculated.
We can advise on holiday pay cases both for employees and employers.

Jennifer Carpenter
Employment Law Specialist
Partner

Possible Implications Of Brexit For UK Employment Law

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Much of the employment law with have in this country comes from the EU, including:- discrimination rights, collective consultation obligations, transfer of undertakings regulations, family leave, working time regulations and duties to agency workers.

Whilst it would now be possible for the UK government to repeal this it is unlikely to do so and in fact EU law will probably continue to significantly influence employment law in this country.

There are various reasons for this:

  • Some employment law was implemented in the UK before the EU made it law. For example, UK equal pay, race and disability discrimination laws, right of return after maternity leave – all UK law.  It is highly unlikely therefore that the government will suddenly decide to reverse this.
  • Some employment law provides for rights that go further than what the EU requires.  For example, UK family leave rights.
  • Many of the employment rights that exist are generally considered to be a good thing and therefore even if it is solely based on EU law it is unlikely that the government would repeal these.
  • The government is likely to determine that there is a requirement to continue to observe EU law even though we are not in the EU.  This will be due to a need to stay in some sort of relationship with the EU. Any trade agreement negotiated with the EU is likely to be dependent on it.

It is much more likely that the government will gradually modify EU derived employment law to make it more applicable to UK employers and employees than repeal it altogether.  As leaving the EU is a two year process nothing will happen quickly.

Once we have left the EU the European Courts of Justice (ECJ) will no longer have jurisdiction over UK courts and decisions made by the ECJ will not be binding on courts in this country.  The decisions however already made by UK courts, taking into account EU law and ECJ decisions will remain binding unless it can be shown that the facts in any particular case are materially different.  It is likely, however that UK courts will continue to at least consider ECJ decisions where relevant to cases being determined here.

So, in summary nothing drastic is going to happen to employment law as a result of Brexit and certainly not in the short term.

 

Jenny Carpenter
Solicitor
Employment law specialist