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Employment Law Bulletin May 2017

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News round up

Thanks to those who attended our Social Media seminar on 11 May 2017. Don’t worry if you missed out, we have a number of events coming up in the next few weeks.

Our Mock Employment Tribunal takes place on 27 June 2017 and there are a still a few places available if you would like to join us. Please click here for more information. The day-long event will offer a realistic tribunal experience, delivered by a real-life employment judge and barristers, along with the Clarion employment team.

Clarion is also hosting an event on Demystifying Blockchain technology on 6 June. The event will be of interest to anyone working within the technology sector and more details are available here.

There’s also still plenty of time to enter a team into the Clarion Leeds 10K Corporate Challenge which takes place on 9 July. It’s a great opportunity to get together with your colleagues and get fit whilst raising some money for a very worthy cause. More details on how to enter a team for the event can be found here.

In this month’s newsletter we look at the latest Government development surrounding dress codes following last years furore, and the latest case law developments relating to apprenticeship contracts, night working, selection criteria and providing employee liability information for TUPE.

Workplace Dress Codes

Last year a receptionist called Nicola Thorp was sent home when she refused to wear high heels at work. There followed a lot of debate in the media about what dress code an employer could impose, and whether it amounted to sex discrimination to insist that female employees wear high heels.

A petition, signed by over 152,000 people was then started by Nicola Thorp to try to force the government to legislate against employers imposing high heels as part of their dress code.
This matter has now been debated in Parliament. The government has not introduced new legislation but has stressed that existing legislation means that employers must treat men and women equally.

They have said, however, that further guidelines will be published later this year. Whilst we wait for these guidelines it is useful to review what you can and cannot insist on as part of your workplace dress code.

You can set standards of dress, as long as they are equal for men and women and are not discriminatory in any other way. So, you could insist that all employees wear smart business dress as long as you apply this requirement equally. You can put in place restrictions due to health and safety requirements. For example, you could put in place a ‘no flip flops’ rule if there was a potential danger of accidents from employees wearing such footwear.

Therefore, you must think carefully about any restrictions that you do impose and whether they are likely to penalise one group more than another. Think, in particular, about any restrictions that might cause a problem for people due to their religion or racial group. If you are not sure whether a requirement that you have put in place is allowable contact us for advice.

£25,000 awarded to an apprentice when a contract ended early

With the introduction of the apprenticeship levy, there has been a lot of focus on apprentices in recent months. An important point was raised in the case of Kinnear v Marley Eternit Ltd t/a Marley Contract Service [2017] – can an apprentice be dismissed before their contract has come to an end?

In this case the apprentice was part way through a four year apprenticeship as a roofing tiler which was due to end in November 2018. There was a downturn in work and as a result he was made redundant in June 2016.

Due to the general downturn in work, he was not able to get another apprenticeship in the same area of work and this meant that he would not gain the qualifications that his apprenticeship would have led to. He successfully argued that this was breach of contract and was awarded £25,000 in compensation.

This case highlights the difference between the more traditional contracts of apprenticeship and the newer apprenticeship contracts which were introduced in the Apprenticeships, Skills, Children and Learning Act 2009 (ASCLA).

The newer contracts are contracts of service, in the same way that an employee would have a contract of service, and hence they can be terminated in exactly the same way that any employee can be dismissed. However, the traditional contract of apprenticeship cannot be terminated early unless there are exceptional circumstances. An example is a case of gross misconduct that is so serious that the apprentice renders themselves ‘unteachable’, or where the business closes down.

It is important to get this right, and to ensure that any contracts that you are giving to apprentices give you the flexibility that your organisation needs.

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Night work and pay

There has been a steady trickle of cases looking at payment of the National Minimum/Living Wage during night work over the years. We now have rulings from the Employment Appeal Tribunal in three more cases, and these give us a useful insight into the assessment of night work and pay.

In Focus Care Agency Ltd v Roberts [2017] the employee worked at a residential home. She was required to be present at the home for a nine hour night shift, but no specific duties were assigned to her during that shift. She could sleep, and she was provided with sleeping facilities. However, she was required to be aware of what was going on, and to make a judgment as to when she should intervene and, therefore, do some work.

She argued that she was working throughout the night, even when asleep, because she was required to be on the premises and was not allowed to leave. She was successful in her argument, and this meant that she had to be paid at least the National Minimum/Living Wage for each hour of her shift.

The second case was Frudd v The Partington Group [2017] and occurred at a caravan park. The employees lived on the caravan park as well as working there. They were required to get up in the night to address a problem if it occurred, and they were paid for the time that they were called out. However, they argued that they were working throughout the night and hence should be paid for the whole night even if they were asleep.

The Employment Tribunal ruled that this came under the exception which can be applied if the employee lives at the place where they are required to spend the night. In this situation they are only working if they actually do some work, they are not working whilst asleep. The Employment Appeal Tribunal has ruled that this has not been correctly reasoned, and has ordered the Tribunal to review the decision. We wait to see what is decided here.

The third case, Royal Mencap Society v Tomlinson-Blake [2017], had two different types of workers. There were ‘waking’ night workers who were required to be awake throughout the night and to work. There was no dispute that they were working and should be paid at least the National Minimum/Living Wage.

However, there were also ‘sleep in’ night workers who were required to be on the premises, were provided with sleeping facilities but were only required to work if the waking night worker requested their help. They were paid £25 per shift, which was less than the National Minimum Wage per hour.

They were found to be working throughout the night, because they were required to be on the premises, and hence they should be paid at least the National Minimum/Living Wage for each hour.

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Breach of mutual trust and confidence

Mutual trust and confidence is an implied term of the employment contract. It means that the employee and employer will treat each other with respect. If this is breached by the employer, the employee could resign and claim constructive dismissal. However, this does not mean that the employer cannot make tough decisions. So, when is there a breach of contract?

In Sharfudeen v TJ Morris Ltd t/a Home Bargains [2017] the employee (Sharfudeen) applied for a lateral move from being manager of one store to being manager of another. Four others applied for the manager’s job, including three external applicants. The manager making the recruitment decision used the promotion assessment procedure to choose who got the job. Sharfudeen scored badly on this process, and did not get the job. He raised a grievance, saying that the selection process was unfair because it was not a promotion and hence the wrong approach had been used. His grievance was not upheld and therefore he resigned and claimed constructive dismissal. He argued that the employer had breached mutual trust and confidence.

To assess whether there has been a breach of mutual trust and confidence the courts ask two questions:

In this case there clearly had been a loss of trust and confidence.

However, it was not agreed that the employer had acted unreasonably. There had been a requirement to make a recruitment decision and the approach the employer used was reasonable.

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Accuracy of Employee Liability Information

If work is transferring from one employer to another there could be a TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006) situation. The existing employer is required to provide the new employer with employee liability information not less than 28 days before the date of the transfer. If this does not happen, the employer can be ordered to pay the new employer compensation (of not less than £500) for each employee who is transferring. Who is responsible if the incorrect information is given and does the penalty apply in these circumstances?

In Born London Limited v Spire Production Services Limited [2017] employees transferred from one employer to another and the employee liability information was provided. This information wrongly stated that a Christmas bonus that the employees typically received was non-contractual. It was contractual, so the new employer sought damages from the previous employer.

Damages were not awarded. The previous employer had been responsible for providing details of the terms and conditions of employment. There was no requirement to state whether they were contractual. The new employer should have carried out due diligence to address questions over points such as the contractual status of any terms and conditions of employment.

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