We held our annual Mock Employment Tribunal on 13 June in which, the attendees heard from a disgruntled Claimant, who had raised concerns about sexual harassment, inappropriate banter and racist comments by a colleague following the Brexit referendum. It was a full-day session with the witnesses played by actors and a Employment Judge delivering her judgement. We received excellent feedback from the attendees and hope that any of you who came enjoyed it and found it useful.
We are hosting the third HR Breakfast Club of the year on Thursday 27 June and we hope to see you there.
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.
Protection for pregnant women
Maria Miller MP, who chairs the government’s Women and Equalities Committee, has introduced a bill under the ten minute rule (this allows backbench MPs to put forward ideas for new laws but such bills only have a chance of law if they have government support). The Bill would make it unlawful to make a woman redundant when she is pregnant, on maternity leave or within 6 months of her returning to work after maternity leave.
Although there is a strong possibility that this Bill will never become law, it is a useful opportunity to recap on the protection that women who are pregnant or on maternity leave currently enjoy:
- Women who are pregnant/on maternity leave can be made redundant. However, their selection for redundancy must not be related in any way to their pregnancy/maternity. Always make sure that you review your selection criteria carefully to ensure that they are not discriminatory.
- If a woman is on maternity leave when a redundancy situation arises you must consult with her in the same way that you would have consulted with her if she was at work.
- If a woman on maternity leave is made redundant she is entitled to be offered any suitable alternative work ahead of any other employees. This applies even if she is not the best person for the job (although there is no obligation to offer her the work she is not appropriately qualified for).
Shared Parental Pay compared with Statutory Maternity Pay
An important ruling has been given by the Court of Appeal in the cases of Ali v Capita Customer Management Ltd  and Chief Constable of Leicestershire Police v Hextall . In both cases a male employee had taken Shared Parental Leave and had been paid at the statutory rate. However, in both cases the organisations concerned paid an enhanced rate of pay for Statutory Maternity Pay. The employees argued that this was sex discrimination. They have been unsuccessful in their claims.
The Court of Appeal has ruled that Maternity Leave is not just for caring for the child, it is also to get over the biological event of having a child. There are special protections that apply when a woman is taking Maternity Leave, and they do not read across to Shared Parental Leave because the purpose of the leave is different (it is solely to care for the child).
- If you offer enhanced maternity pay you are not required to offer the same enhancements to Shared Parental Pay.
- Do remember that you must treat men and women equally in all other areas of reward. This ruling specifically links to benefits that relate to maternity/pregnancy. For example, a man taking shared parental leave should be paid the same as a woman.
Recording hours worked
An important ruling has come from the Court of Justice of the European Union in the case of Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE . A Spanish trade union was arguing that an employer is required to keep records of the hours that employees have worked, but the employer was arguing that this was too onerous. The trade union has been successful in their argument. The Court of Justice has said that employers must keep records of hours worked by an employee, because not doing so would make it too difficult for an employee to bring a claim that their rights relating to working time had been breached.
This will require an alteration to the Working Time Regulations 1998 to make UK law compliant with the ruling. However, in the meantime you should be putting in measures to record all working hours.
- If you already operate a time sheets/clocking in system ensure that it is being used correctly, and by all employees.
- Think about the way that you capture work that employees do remotely – for example days working at home, and checking emails in the evenings/early morning/at weekends.
- Review the way that the working hours are recorded. Is this easily understandable, and do employees have access to this?
An employee and a worker are entitled to be paid at least the National Minimum/Living Wage for each hour worked. It is important, therefore, to determine when the employee is actually working.
In Frudd v Partington Group  the employees worked on a caravan site, working shifts that ended between 4.30pm and 8pm. They could then be ‘on call’ until 8am the next morning, and they argued that they were working for each hour until 8am. The Employment Appeal Tribunal has disagreed. Up to 10pm they were required to carry out duties such as showing visitors around the site. After that, they only had to work if an emergency occurred. Therefore, they were working until 10pm but beyond that they were only working if they were actually called out.
- An employee is working if they are required to actually do work, or to be away from their home and available to work.
- In most cases, if the employee lives on site then they are only classed as working if they are actually called to do work. Just because they are available to work does not mean that they are working.
- If you are at all unsure about whether or not an employee is working please contact us for advice.
Talking about religion
Religion is one of the topics that can cause incredible tensions between employees. Is it lawful to tell an employee that s/he cannot discuss religion with others during working time? In the case of Kuteh v Dartford and Gravesham NHS Trust  the employee was a nurse who often spoke to patients about her religion. She was instructed by management to stop doing this because it was inappropriate. She continued and was dismissed. The tribunal found that this was a fair dismissal. The management order was disobeyed, and the order that had been given was reasonable.
- If an employee is pushing their religious (or political views) on others you may be able to lawfully tell them to stop.
- Be consistent. If you stop one employee talking about their religion, you should give the same instructions to everyone. Just stopping discussion about one religion could lead to a discrimination claim.
The need to understand a disability
Employers are not expected to have a full understanding of employee’s specific medical conditions. However, you do have a responsibility to find out about it to enable you to understand what reasonable adjustments could be made.
In Sherbourne v Npower Ltd  the employee struggled with noise and disruption, and became agitated. He had a breakdown at work, and occupational health advised that he was likely to receive a diagnosis of autism. Various recommendations of adjustments were made, but none of them were actioned. He was eventually dismissed and successfully claimed disability discrimination. The approach of the employer, in treating the situation as disciplinary and not trying to understand how the adjustments could help, amounted to discrimination.
- If adjustments are recommended by a medical practitioner only reject them if there is a very good reason – and check with us first so that we can help you assess if the adjustments are reasonable.
- You are not expected to understand medical conditions, but you are required to understand how your disabled employees can be supported. Charities that support specific disabilities are a very useful source of information.
A reasonable investigation is essential
Before dismissing an employee there is a requirement to carry out a reasonable investigation. If the outcome of the dismissal could be that the employee’s career is ended then the requirement of the investigation is particularly stringent.
In Hyland v Cheshire & Greater Manchester Community Rehabilitation Company  the employee was a Probation Officer. A service user accused her of engaging in an abusive and inappropriate relationship with him, which included accusations that they socialised together, smoked cannabis and even attended a wedding together. The employee denied all the allegations, saying that they were false and suggesting ways in which the evidence which was presented had been faked. However, it was decided that the employee had engaged in an inappropriate relationship and she was dismissed. She successfully claimed unfair dismissal because the investigation was inadequate in fully exploring the explanations that she had put forward.
- Your investigation must be reasonable, and you must hold a reasonable belief that the employee did as accused (having conducted sufficient investigation as was reasonable in the circumstances).
- If an employee’s career could end as a result of the accusations your investigations must be rigorous, and we always recommend that you talk to us before proceeding to dismiss.
- Always approach an investigation with an open mind, exploring both the allegations and the explanations given.
Managing a pregnant employee
An employee is not required to tell you that she is pregnant when she applies for a job, and if she announces that she is pregnant soon after joining the organisation she must not be treated less favourably. In Walker v Arco Environmental Ltd  the employee found out that she was pregnant 3 weeks after starting a new job. When she told her employer she alleged that she was treated with hostility and she was asked if she knew that she was pregnant when she took the job. She eventually resigned and successfully claimed discrimination and unfair dismissal.
- Never ask a woman about any plans for a family, or ask her if she is pregnant during the recruitment process.
- If a woman tells you that she is pregnant during the recruitment process you must not use that information as part of your selection process.
- All women, regardless of length of service, are entitled to take Statutory Maternity Leave. However, to qualify for Statutory Maternity Pay a woman must have at least 26 weeks’ service at the 15th week before the week in which her baby is due.
A final word: Supporting your employees outside of work
Last month was mental health awareness week and one thing that is clear from all of the statistics about employee mental health and sickness absences is that problems in employees’ personal lives will, in most cases, directly impact on their performance and attendance at work. ‘Presenteeism’ (when an employee is present at work but not working effectively) is a growing problem and savvy employers are realising that supporting employees outside of work can lead to a more effective and successful workforce.
All of this is unsurprising. If an employee is engaged in a stressful custody battle, dealing with a divorce or trying to sell their share in a property that they own with an ex-partner, it is entirely understandable that they will be struggling to concentrate when they are at work. However, it can be difficult for an employer to offer support without feeling that they are being intrusive. For some employees, any intervention from their employer will be unwelcome. Others might be happy that their employer seems to care.
This dilemma is one that we are not best placed to advise on. You know your employees best and all you can do is try to be there and offer help if they want it.
However, one thing we can do is to help with legal problems if you want to refer any employees and provide practical assistance to your employees.
We are a full-service law firm and our team of family lawyers regularly help people resolve personal issues arising from separation or divorce (including arrangements for children and the family finances), “living together agreements” and pre/post nuptial agreements. If one of your employees is dealing with these issues outside of work and is unsure who to speak to, feel free to pass on our number and we can provide specialist advice and support - hopefully helping to resolve the problem and also avoiding any impact on work and the business.
If you would like to discuss any of those legal issues, please contact the Employment Team.