We will be hosting our fourth HR Breakfast Club of the year on Thursday 26 September 2019 and there will be an Employment Law Update seminar on Thursday 24 October 2019. We will be sending the invitations for those events in due course.
We are always talking about key legal developments, topical issues and what we are up to, so please follow us (@ClarionEmpLaw) to be kept up to date between our monthly newsletters.
The Living Wage
The Living Wage Foundation has been campaigning for organisations to pay employees a rate that takes into account the cost of living for many years. The Foundation argues that the National Minimum/Living Wage rates are too low for individuals to be able to afford a decent standard of living.
It has now launched a new initiative called ‘Living Hours’. It is important to understand the nature of this campaign, the Living Wage and how that differs from the National Minimum and Living Wage.
Firstly, we have the National Minimum Wage and the National Living Wage. It is unlawful to pay less than those rates to any employee or worker. The current hourly rates are:
Aged 25 years+ £8.21
Aged 21-24 £7.70
Aged 18-20 £6.15
Aged 16-17 £4.35
Apprentice rate £3.90
The Living Foundation also promotes the ‘Living Wage’. This is an amount of £9.00 per hour outside London, and £10.55 per hour in London. There is no legal requirement to pay this amount. The new initiative is called the ‘Living Hours’. This is a commitment to give at least four weeks’ notice of shifts to be worked to employees, to give a contract that properly reflects the hours worked and guarantees a minimum of 16 hours per week. There is no legal requirement to do this, but the Foundation is encouraging employers to give this additional support to employees to reflect the insecurity that many experience in their working lives.
Again, there is no legal requirement to adhere to the ‘Living Hours’ campaign, but it is worth noting that the government is consulting on proposals to allow individuals who are not working on a fixed working pattern (e.g. working on a zero hours contract) to request a fixed working pattern after they have been working for at least 26 weeks. We will keep you updated on this consultation.
Clarion has pledged to pay employees at least the Real Living Wage, as set by the Living Wage Foundation, which is calculated according to the cost of living and what people actually need to make ends meet. This reflects Clarion’s strong commitment to our employees and our reputation as a great employer. We believe that we can only do well by our clients by doing the best for our employees, which is why we put them at the centre of everything we do.
If you are considering becoming accredited as a Living Wage Employer and would like to know more, why not check out our Employment Team’s page for further info and details of how you can contact them.
What you can and cannot do when trade union negotiations fail
If you have a recognised trade union, you will probably need to engage in collective bargaining with the representatives on issues such as pay and terms of employment. However, if the negotiations break down, you might want to approach employees directly to encourage them to accept what you are offering (even though their trade union representatives do not support this). Can you do this?
In Kostal UK v Dunkely and others  negotiations with the trade union about a pay deal had broken down and the employer wrote directly to the employees asking them to accept the offer, and saying that the organisation would not be able to pay the Christmas bonus if the deal was not accepted. The trade union argued that this was unlawful, because it was offering an inducement to end collective bargaining, which is a breach of law.
The Court of Appeal has ruled in the employer’s favour. An employer is allowed to approach employees directly if negotiations with the trade union have broken down.
- If you have a recognised trade union, it is always best to try to resolve issues with them directly.
- However, if negotiations have broken down you could approach employees directly, but before doing that talk to us so that we can ensure that you will not be breaching the law.
Calculating holiday pay
There have been various cases, in recent years, looking at what an employer should pay an employee when the employee takes annual leave. If an employee receives variable pay (e.g. base pay, overtime, commission, bonuses etc.) then you should pay them an average of the last 12 weeks’ pay whilst they take leave. Most of the cases that have been reported have questioned what should be included in the list of variable pay, and a recent ruling from the Court of Appeal has addressed the inclusion of voluntary overtime.
In Flowers v East of England Ambulance Trust  ambulance crew worked voluntary overtime. It was properly voluntary – they could choose whether they wanted to work it or not and there was no penalty if they did not. The employer argued that this should not be included in pay when calculating the average over the last 12 weeks. The Court of Appeal has ruled that it should be included if it is sufficiently regular and settled such that it could be part of normal remuneration.
- When calculating holiday pay include all financial elements of ‘normal pay’ earned by the individual over the past 12 weeks.
- If there is an element that you are thinking of excluding, please check with us first.
Deciding if an employee is disabled
The definition of a disability is found in the Equality Act 2010. It is a physical or mental impairment, which has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. What are your responsibilities in determining if an employee is disabled?
In Kelly v Royal Mail Group Ltd  the employee was dismissed because of a poor attendance record. The employer had obtained occupational health reports before deciding to dismiss, and had relied on these in concluding that the employee was not disabled. However, the employee had carpal tunnel syndrome, and argued that he was disabled and that the employer should not have relied on the occupational health reports. The Employment Appeal Tribunal ruled that the employer was correct to rely on the reports, in the absence of any other information.
- If an employee is suffering from a health condition, it is always a good idea to get some medical evidence to help you understand more about it.
- In addition to getting a medical report, discuss the situation with the employee, and investigate any evidence that the employee gives you.
- If the employee refuses to agree to you accessing medical information about him/her, make it clear that you will still proceed to make decisions about the employee’s employment, even though you do not have an opinion from a medical practitioner.
Out-of-date Employment Tribunal claims
In most cases, an employee has three months from the date of the act complained of, to make a claim to the Employment Tribunal. Although the Tribunal is not quick to agree to extend the time limits, it can do so. You must be prepared for this to happen.
In Lowri Beck Services Ltd v Brophy  the employee who was dismissed suffered from dyslexia and found it hard to understand information and instructions. His brother took responsibility for submitting his claim to the Employment Tribunal and wrongly believed that the date of dismissal was 6 July when it was actually 29 June. The Tribunal found that this was a genuine error, and therefore it had not been possible to present the case in time. The claim was therefore allowed to continue, despite being brought out of time.
- An employee who has been dismissed has three months to contact ACAS to confirm they wish to bring a claim. The employee also has a requirement to engage with early conciliation. The early conciliation process can take up to one month and can be extended by a further two weeks, if both parties agree. Therefore, in total, it is possible for an employee to make a Tribunal claim four and a half months after the date of dismissal.
- If you believe that a claim has been presented out of time, you should still complete the ET3 (the response form) and return it to the Employment Tribunal. You have 28 days from the date that this was sent to you to return the completed form.
- In addition to returning the form, you should contact the Employment Tribunal and tell them that you believe the claim is out of time, and request a preliminary hearing for this point to be considered.
- If you are at all unsure what to do, please contact us.
Unfair treatment when English is not the first language
In some jobs, it is essential that the employee can speak/read English fluently. However, if this is not critical for a job, an employee must not be treated less favourably due to less than fluent English language ability.
In Khawaja v Transport for London  the employee worked on the tube network. He was of Pakistani ethnic origin, and English was not his first language. When working with one manager, he was excluded from conference calls and ‘huddles’, which were seen as development opportunities. This particular manager was concerned that his command of English might mean that he made mistakes. After a protracted period, when a grievance was raised, and he became ill with stress, he resigned and successfully claimed that he had suffered race discrimination.
- If being fluent in the English language is not essential to the successful performance of a job, then an individual should not be penalised in any way due to poor English.
- If you are going to argue that an employee must be able to speak/read English fluently, you must be able to show that this is an essential part of the job and that not having this fluency would impede the performance of the job in some way.
Rejection for possible future disability
If an employee is disabled, you have an obligation to consider if there are any reasonable adjustments that can be made to help the employee overcome the negative impacts of that disability. If you treat the employee less favourably due to the disability, this will be direct discrimination. In the same way, if you treat the employee less favourably because of a disability that might affect the employee in future, this will be direct discrimination.
In Chief Constable of Norfolk v Coffey  the police officer concerned worked for Wiltshire Police and applied for a transfer to Norfolk. She suffered from some hearing loss and tinnitus, but this did not affect her ability to do the job and it was not a disability, as defined in the Equality Act 2010.
Her application for a transfer was refused because of the concern that her hearing would worsen in future. She was successful in her claim of disability discrimination.
- If an employee has a medical condition which might result in a disability in the future, you need to consider what reasonable adjustments you could make, even if there is no need to make those adjustments immediately.
- Always seek a medical opinion before deciding whether a condition is a disability, or whether it might become a disability.
A final word
In addition to the general employment work that we deal with for our clients, we also assist our corporate colleagues with the employment-related elements of business sales, mergers and acquisitions.
One example is the recent acquisition by Kartell UK of our long-standing, Leeds-based client Just Trays Limited, a shower tray manufacturer. Clarion was delighted to be able to advise on this acquisition. You can read the full story on our website.