A New Year
Happy New Year to you all! We hope that you have had a lovely holiday and that 2020 is a prosperous and successful year for you.
You may want to kick off the year by booking on our complementary programme of events to support your development and help keep you up to date.
Our programme can be found here and you’ll see that there are events for ‘Rising Stars’, more in depth ‘Masterclasses’ and legal updates to suit different needs.
Our next event is on Thursday 30 January and is on the topical issue of the changes to employment status and IR35. Given the challenges and impact it’s likely to have for industry, there are only a few spaces left so do get in touch if you’d like to join us.
We look forward to supporting you in 2020 and welcoming you at our events soon.
Legislative changes on the horizon
2020 proves to be another interesting year for employment law, with several changes coming in April. These changes will be:
- At present, if employees want their employer to set up an information and consultation body, at least 10% of the employees must support the request. That will change to be at least 2%. For a request to be valid, there must not be an existing body covering the employees in question.
- If an employee receives variable pay (e.g. bonuses, commission, overtime etc.) you must pay an average of their previous 12 weeks’ earnings when they take annual leave. This will change so that you have to take an average of their previous 52 weeks’ earnings when they take annual leave.
- Employees and workers will be entitled to receive a written statement of their terms and conditions of employment from day one of employment, instead of receiving it within the first two months of employment, which is the current requirement.
In addition to providing this statement earlier there are additional items which must be included on the statement:
- the duration and conditions of a probationary period;
- the specific days and times workers are required to work;
- details of other types of paid leave (for example, maternity or paternity leave);
- all remuneration/benefits (not just pay);
- any entitlement to training, explaining what the worker is required to complete and what is not funded by you.
Agency workers are entitled to receive the same rate of pay and terms and conditions of employment as permanent employees, once they have worked for an organisation for at least 12 weeks. Currently this requirement can be opted out of if agency workers are employed on a continuous contract and paid during any gaps between placements. This is known as the Swedish derogation.
This will no longer be lawful. In addition, an agency worker will be entitled to be provided with a list of information about a placement, to help them to decide whether to accept it. This information is:
- the type of contract the work will be employed under;
- the identity of the employment business;
- the minimum rate of pay;
- how the worker will be paid, and by whom;
- any deductions or fees to be taken;
- an estimate of take-home pay, or an example of how take-home pay will be calculated; and
- details of annual leave entitlements and how leave will be paid.
As ever, if you have any queries about any of these changes that are coming, please do not hesitate to contact the Clarion Team for further advice.
Surveillance of employees
You are allowed to check what your employees are doing whilst they are working, but this must not be unduly intrusive. In the case of Lopez Ribalda and others v Spain  a supermarket installed covert CCTV for a period of two weeks, covering a limited part of the supermarket. They did this because there had been a number of thefts and they wanted to identify which staff were involved. The employees argued that this was a breach of their right to privacy.
The European Court of Human Rights has concluded that this was not a breach of the right to privacy because it was for a short period of time, and the employees could only have a limited expectation of the privacy they could have in a supermarket.
- If you are going to carry out any surveillance, employees should usually be made aware. If you want to do this covertly always seek our advice first.
- If you are going to carry out covert surveillance there must be a strong reason(s) for doing so, and the surveillance must be a proportionate means of addressing that concern.
Employee accused of a crime
In Boscher v UCI Ltd  the employee worked as an insurance worker. He was arrested by the police due to an allegation that he was in possession of indecent images. He told his employers about this. At the initial court hearing he entered no plea, rather than pleading guilty or not guilty. Given that he was not denying the claim his employer was concerned that the accusations were true.
He was dismissed due to the possibility of reputational damage, and with regard to the safeguarding of employees aged under 18 years. At the criminal trial he was acquitted because the CPS offered no evidence against him.
The dismissal was found to be unfair, with the Employment Tribunal saying that a reasonable employer would have waited for further legal input about the allegations before deciding to dismiss.
- It could be reasonable to dismiss an employee if they are accused of committing a crime. It will depend on the nature of the crime, and the potential damage that it could do to your organisation.
- In criminal law there is a requirement to prove ‘guilt’ beyond all reasonable doubt. In civil law (which includes employment law) there is a requirement to show that the employee did as accused on the ‘balance of probabilities’. Therefore, it could be fair to dismiss, even if an employee is found innocent in a criminal court due to the different standards of proof.
- Before dismissing you should always carry out your own investigation, but liaise with the police to ensure that your procedures are not interfering with anything that the police are doing.
Employee falling victim to a scam
We are becoming very familiar with frightening stories about individuals losing significant amounts of money due to scams – and here is another. In Reilly v Peebles Media Group  an employee received an email, which appeared to come from her Managing Director, instructing her to transfer money from the company account to a new account. The employee was ‘holding the fort’ because the senior management were on leave, but she managed to contact her line manager who authorised the payment. She then received further requests to transfer money, which eventually totalled £193,250. All the requests were scams. She contacted her line manager one more time for a pin number to complete a transaction, which she was given.
The organisation managed to reclaim £85,000, and then sued the employee for the remaining money. They also dismissed her, and although she appealed, she did not pursue a claim for unfair dismissal.
It has been ruled that the employee could not be to blame for what had happened, particularly given that the first transaction was authorised by her manager and she had been given a pin number to continue with further transactions.
- Make sure that all employees who have access to company money receive appropriate training about fraud, scams and what to look out for.
- Put in place an approvals process, so that one employee alone cannot approve large transfers of money.
- If a junior employee is left in charge of the office, make sure that s/he has some process to follow if requests for financial transactions are made.
No beard policy was discriminatory
The case of Sethi v Elements Personnel Services Ltd  demonstrates the importance of thinking carefully about uniform and appearance standards and ensuring that they are not discriminatory.
The individual in question is a Sikh, and applied to a recruitment agency which supplies staff to five star establishments in the hospitality sector.
Due to his religious beliefs, he does not cut his hair, and has a beard. He was told that five star establishments require staff to be clean shaven, and therefore he would not be added to the list of staff available for work from the agency. He claimed indirect religious discrimination.
His claim was successful. The requirement to be clean shaven was more difficult for Sikhs to comply with, and the employer was not able to justify the requirement.
- If an employee cannot comply with a requirement relating to uniform or appearance, consider if there are any modifications that you can make to those requirements.
- If there are no modifications that can be made, question why the requirement is in place. Could it be justified as being essential?
- If you are at all unsure, please contact us for advice.
In Stuart Delivery Ltd v Augustine  the individual was a delivery driver working fixed time slots. During those time slots he had to be available for work and do all deliveries allocated to him. However, he could ‘release’ a slot back to the pool of delivery drivers, and if someone else picked up the slot, he did not have to do the work.
The employer argued that this was a right to substitution, and as the requirement to do work personally is an essential element of being an employee or a worker, he was neither.
However, the Employment Appeal Tribunal disagreed. The individual had no control over who did the work, and still had to do the work if no-one else took the slot. This did not mean that there was a right to substitution, and therefore the individual was a worker.
- If the individual has the option of not doing work, or of allocating the work to someone else, it is very unlikely that they are a worker or an employee.
- If you are unsure about the status of an individual, please contact us to discuss the specific situation.
If part, or all, of a business is sold to another employer and continues in much the same way, or if a service provided by one provider moves to another, it is likely that there is a transfer of undertaking. This means that employees transfer from one employer to another with their terms and conditions of employment intact.
The law has always been interpreted so that this right to transfer only applies to employees. However, in the recent case of Dewhurst and others v Revisecatch Ltd and City Sprint (UK) Ltd  the Employment Tribunal has concluded that the right also applies to workers.
This is an Employment Tribunal ruling, and therefore it is not binding. It is likely to be appealed, and that will give us more guidance going forward. In the meantime, if you have got a transfer situation please contact us so that we can advise of any liabilities.