News round up
Happy New Year (if we are still allowed to wish you that!). We hope that the 2017 is a prosperous and successful year for you.
We are kick-starting the New Year with our ‘Can’t do? Won’t do? Time to go?’ seminar on 26 January 2017, hosted by Sarah Tahamtani and John Robinson. The session will deal with the headache of poor staff performance and will arm you with the insight and skills you need to tackle your problem employees by identifying and following the right process. There are only a few places remaining for this event- please click here for more information or email firstname.lastname@example.org to register your interest.
We also have a number of exciting events in the pipeline and seminars already scheduled for later in the year. Please click here to view our seminar programme and keep an eye on your inbox for invitations to these events in due course.
We look forward to seeing you at one of our events over the coming year. Follow this link to view other upcoming events within the firm.
Our first newsletter of the New Year looks at some key case decisions relating to vicarious liability and the perils of password-sharing, along with a recent EU decision on age discrimination relating to age limits for recruitment purposes.
As we embark on a new year, it seemed appropriate to look forward to the upcoming changes in 2017, so in this month’s newsletter we also look at the forthcoming changes to minimum wage and statutory rates, Sunday working rights and Gender Pay Gap Reporting.
Events must be in the scope of employment for you to be vicariously liable
You are vicariously liable for the acts of your employees, and those operating on your behalf, if they are carried out in the scope of employment. This has been interpreted quite broadly, with the ‘scope of employment’ being more than that which the employee does at the workplace during normal working hours. However, a recent case has shown that there is a limit to this definition of ‘scope of employment’.
In the rather sad case of Bellman v Northampton Recruitment Ltd  the employees concerned had been at the company Christmas party. A small group then moved on to have drinks elsewhere. Included in this group was a director and an employee who had been friends since childhood. An argument broke out and the director punched the employee. He fell, hit his head and suffered a brain injury. He will never work again, and his mental capacity is now limited. He sought damages from the company, saying that they were vicariously liable for his injuries. He has been unsuccessful.
Although the company Christmas party would be seen to be in the scope of employment, because it was an extension of the company activity, the assault did not happen at the party. Although it could be argued that the individuals engaging in drinks after the party all knew each other because of their work, the link to their employment was not sufficiently strong for vicarious liability to apply.
- Presume that you are liable for the activities of employees at events such as office parties and business functions.
- If a problem occurs at an event where the link to work is less clear, contact us for advice.
Be wary of password sharing
The case of Eiger Securities LLP v Korshunova  raises an interesting question. In this company, it was usual practice for employees to share passwords and computers. The employee was concerned that her colleagues were using her password to log into her computer and to chat with her customers without telling them that it was not her that they were talking to. She changed her password and turned off her computer. She was eventually dismissed for insubordination.
She tried to argue that the dismissal was unfair because she had made a protected disclosure. This was not accepted, because there is nothing legally wrong with allowing employees to share passwords. So, the Employment Tribunal now has to consider whether dismissing her for insubordination was fair.
The interesting question raised by the case is whether you should allow password sharing in your company? Although it is not legally wrong it does raise the risk of you being unable to track who has done what, of ex-employees being able to access systems even if you have disabled their log-in details and if you link passwords to the level of authority an individual has to access information you could find problems with access occurring.
- If you allow password sharing think about the possible security risks that this is opening up, and debate whether it really is a good idea.
- If you do not allow password sharing reflect on the action that you currently take to enforce this. Is it sufficient?
Recruitment age limit justified
A recent ruling from the Court of Justice of the European Union, had given a useful ruling with reference to age discrimination. In Gorka Salaberria Sorondo v Academia Vasca de Policia y Emergencias  the Basque Police and Emergency Services Academy had set a maximum age of 35 years for applications to be Police Officers. They argued that the job was physically demanding, and they had observed that performance in the job started to decline from around 40 years. In addition, Police Officers are allowed to reduce their hours from the age of 56 years and then retire at 60 years. Another reason for the limit on recruitment age was to ensure that there was sufficient return on the investment in training before the Police Officers retired.
An individual who was aged over 35 years wanted to apply for the role of Police Officer, and argued that the requirements were age discrimination. The Court of Justice has found in favour of the employer. The upper age limit was a justifiable occupational requirement.
- There are circumstances where actions that could be seen as discriminatory may be justified because of an occupational requirement (for example, insisting that an applicant is female when providing intimate care to a female patient). However, be careful. You must be sure that the occupational requirement is valid before relying on it, so always check with us first.
Looking forward to 2017
National Minimum Wage
One of the changes that is occurring in 2017 is the date that the National Minimum Wage is reviewed. In the past, it has always been reviewed in October each year, but from 2017 onwards it will be reviewed in April. Click here to see the changes that will take place on 1 April 2017.
- We recommend that you write to employees telling them about the new rates of pay that they will be receiving (if relevant) so that there is no uncertainty.
- If you have employees earning the National Minimum Wage, we recommend that you make a diary note of the date that they will move into the next band, or will become eligible for the National Living Wage. Make certain that you are not failing to comply because of an oversight.
It is also important to note that there will be increases to statutory rates, click here to see the current and revised rates.
The Lower Earnings Limit is the amount that the employee must earn to be eligible for benefits such as Statutory Maternity/Adoption Pay.
Gender Pay Reporting
The draft legislation for gender pay reporting was published just before Christmas. Whilst the principles relating to the reporting have not changed, we have set out the details that you do need to be aware of in a separate document which can be downloaded here.
- If you are not sure whether you will be covered by the gender pay reporting obligations, please contact us so that we can discuss this with you.
- Contact us for advice if you have any queries about how to put the report together.
Changes to Sunday Working
Last year, the Enterprise Act 2016 was introduced and this includes important changes to Sunday working for shop workers. Although we are still awaiting an implementation date for the changes, it is very likely that this will happen in 2017 so if you work in the retail sector you should be prepared.
At present, a shop worker can object to working on a Sunday unless they are specifically employed to work on a Sunday. That does not change, but in addition to objecting to work on a Sunday employees will also be able to object to working additional hours on a Sunday. You are required to inform your employees of their right to opt out.
If an employee works in a shop that is more than 280 square feet (referred to as a large shop) they have to give just one month’s notice that they want to opt out. Those working in a small shop have to give three months’ notice.
If you have not told employees about their rights to opt out, those employees working in a large shop have to give just seven days’ notice that they want to opt out, whereas employees working in a small shop will have to give one month’s notice.
- Once a date has been given for the new rules to be introduced (we will inform you when that happens) you will have to write to all your shop workers and tell them of their new rights to opt out. You will have to do that within 2 months of the rules being introduced.
- You will have to give a written statement to all new employees about their rights to opt out of Sunday working, within 2 months of them starting employment. We can assist you in preparing this statement if needed.