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Employment Law Bulletin - January 2019

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Happy New Year! 

Although it probably seems like a long time ago, we hope that you had a good Christmas break, and that 2019 is a prosperous and successful year for you and your organisation.

We have few seminars coming up …

We still have some places left for our next HR Breakfast Club which will take place on Thursday 7 February at our offices. At the seminar, Victoria Clark, Senior Associate in the Employment Team, will discuss the relevant legal issues and help you to avoid common pitfalls. She will also take you through the key terms and conditions to be included in your standard job offer letters and employment contracts. Helen Saunders, our own Head of HR, will then offer practical insights and tips for effective recruitment and attracting talent. More information on the learning and development programme can be found in the “A Final Word” section in this newsletter.

We hope that you have received the invitation to our next Employment seminar which will take place on Thursday 7 March at our offices. At the seminar, Chris Booth, Partner and Joanna Dodd, Senior Associate from the Employment Team, will help delegates define and identify a redundancy situation. We will explain what is involved in a collective consultation and how it overlaps with individual consultation and will also discuss the pros and cons of paper-based selection criteria, as opposed to a recruitment selection process.

In addition, we are always talking about key legal developments, topical issues and what we are up to on our twitter account (@ClarionEmpLaw), so please follow us if you want to be kept up to date between our monthly newsletters.

Forthcoming legal changes

Of course, the biggest change that we will all experience during 2019 (probably!) is the withdrawal of the UK from the European Union. At the moment, it feels like the whole country is holding its breath, waiting to find out what is actually going to happen. Obviously, we will keep you updated during the year as any impacts on employment law become apparent.

There are other smaller changes to be aware of:

From 6 April, payslips for employees who work variable hours will have to state the number of hours worked, as well as the amount being paid. This has been put in place to enable employees to have more understanding of the payment that they receive.

From 6 April, the rate for Statutory Sick Pay will increase from £92.05 per week to £94.25 per week.

From 7 April, the statutory rate for maternity/paternity/adoption/shared parental pay will increase from £145.18 per week to £148.68 per week. The lower earnings limit, at which entitlement to these payments occurs, will increase from £116 to £118 per week.

Minimum contributions from both the employer and the employee into auto-enrolment pension schemes will increase from April. Employers will have to contribute a minimum of 3% of the employee’s pre-tax salary (increased from 2%), and employees will have to contribute a minimum of 5% (increased from 3%).

Just before Christmas, the media was reporting that the government was making the biggest reform of employment law in 20 years. The proposals that this related to have come as a result of the Taylor Review into Modern Employment Practices which we have written about previously. There are a number of proposed reforms that do not have an implementation date as of yet, but it is confirmed that the following will be implemented on 6 April 2020:

We will continue to update you on the progress of these changes. In the meantime, a usual review of the key cases this month is set out below.

Managing unconscious bias 

We all have different experiences and different backgrounds, and they shape the way that we understand the world around us. This means that we have stereotypical views of how people will behave, and this can affect the way we make judgments of situations. It is very important that your managers understand this, so that they can be sure that they make fair decisions. Recently, a reported £1 million was awarded in compensation to an employee who suffered race discrimination (which was viewed to be the result of unconscious bias).

In Hastings v Kings College NHS Foundation Trust [2017] the employee was an IT manager working at the hospital and was of Afro-Caribbean ethnic origin. He was driving in the hospital car park when a van drove by him aggressively. He got into a heated discussion with the van driver, who allegedly made racist remarks. The incident was reported, and the CCTV images seemed to show the IT manager hitting the van driver. An investigation took place and the manager was dismissed. He successfully claimed race discrimination and unfair dismissal. 

It was found that the investigation into the situation was fundamentally flawed. Assumptions had been made, the manager was ‘interrogated’ rather than interviewed and the manager was not believed. The Employment Tribunal concluded that the approach was tainted by race discrimination, which was the result of unconscious bias.

Action points:

Banter did not amount to harassment 

Harassment is defined in the Equality Act 2010 as unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. 

It is important to note that behaviour that amounts to harassment does not have to be directed at an individual for them to make a claim of harassment. If the behaviour is creating an environment that is intimidating, hostile etc., or is violating their dignity, they can make a claim.

Cases are always fact specific, but it is interesting to reflect on the recent case of Evans v Xactly Corporation Ltd [2017].The individual concerned worked in an office where there was frequent banter, widely directed at different colleagues. He joined in with the banter on a regular basis. He was dismissed for poor performance and argued that he had suffered harassment on the grounds of disability and ethnic background because comments had been made about his weight (which he linked to his diabetes) and his connections with the traveller community.

His claims were unsuccessful. It was not accepted that his weight was linked to his disability, and only one colleague knew about his links to the traveller community. However, most importantly, the Employment Appeal Tribunal had regard to the culture of where he worked and the fact that he typically joined in with the banter. It did not accept that his dignity was violated, or that an unacceptable environment was created, when he was part of it.

Action points: 

Addressing harassment from a third party 

When the Equality Act 2010 was first introduced, it included the concept of third-party harassment. This was defined as treatment from someone outside of the organisation (e.g. a contractor or a customer) who had harassed an employee on at least two occasions, and the employer was aware of what had happened. In such a situation, the employer was required to take action. 

However, the government was concerned that this was unmanageable for employers, and back in 2013, the concept was removed from legislation. This does not mean that an employer has no responsibility to act if one of its employees suffers harassment from a third party. An employer still has a duty of care to all employees and must exercise this duty.

In Jayeola v Commissioners of HMRC [2017] the employee was subjected to a racial comment by a security officer who was a contractor supplied by an external security firm. The employee was distressed and did not return to work. He complained to his employer about what had occurred, and his manager arranged diversity training for all staff. However, his manager did not investigate what had occurred or ask for any disciplinary action to be taken against the security officer. The security officer was spoken to by his employer, but the employee concerned wanted him to be moved to another building. The tribunal found that the lack of action by the line manager, together with the lack of support that the employee received, amounted to race discrimination.

Action points: 

Treat part-time workers fairly 

Anyone who works fewer than normal full-time hours for your organisation is legally classed as a part-time worker. Someone who works part-time must not be treated less favourably as a result of their part-time status. It is important to note that each term of the contract must be considered individually. It is not possible to argue, for example, that a part-time worker is paid less than someone working full-time but gets more annual leave and therefore overall the treatment is fair. The requirement is to ensure parity in each term.

In British Airways plc v Pinaud [2017], the Court of Appeal considered this issue. Pinaud worked as cabin crew. Full-time cabin crew had to be available to work for 243 days per annum. Pinaud moved to work 50% of the full-time hours, but was required to be available to work for 130 days per annum. She was paid exactly 50% of the full-time salary.

She argued that this was less favourable treatment because she was working 53.5% of the normal full-time hours. BA argued that she was required to be available for 130 days, but that did not necessarily mean that she worked that many hours. They were unsuccessful in this argument.

To ensure parity, the percentage of time that Pinaud was required to work had to match the percentage of salary that she received. It did not, and therefore, this was less favourable treatment.

Action points:

A final word 

Learning and development is often a key part of the job for HR professionals. 

However, it’s often the case that the HR team invests so much in setting up development programmes for others in the business, that there can be little time (or resource) to develop and progress the HR team itself.

We have set up our HR Breakfast Club to help solve this problem and nurture rising stars in the HR world. The Club is a learning and development programme for those in the earlier stage of their careers or who are new to HR. The first HR Breakfast Club this year will take place on 7th February, as mentioned earlier. This will be followed by four further sessions, covering a variety of relevant legal and/or personal development topics. Attendees will also be given their own notebook to chronicle and reflect on their learning. They will then be then invited to attend a “graduation ceremony” event, with a special prize for those who attended all five sessions.

The good news is that this is all free and part of our offering to help you and your teams to grow and develop.

You can view the full programme here and register your interest for the sessions. You will receive the invitations in due course.