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Employment Law Bulletin March 2015

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For those that attended our interactive Mock employment Tribunal session, you’ll know too well the importance of having a clear social media policy.

The issue has been highlighted further by social media being in the news againThe use of social media has been in the news again. This time the case related to an employee who worked in a North Devon dairy.

The employee put on a mask which looked like Osama Bin Laden and took a ‘selfie’ of himself which he then posted on his personal Facebook page. His employer’s company logo had been caught in the picture, so his employer dismissed him for bringing the company into disrepute.

The dismissal has been found by the Employment Tribunal to be unfair, because it was procedurally flawed and did not take into account his long (seven years) unblemished service and his previously excellent conduct.

This case reminds us yet again of the importance of having a clear social media policy which sets out for employees what is and is not acceptable. As well as having a clear policy it is important that you address any possible breaches of the policy fairly and reasonably, thinking through the outcomes and weighing up the evidence just as you would with any disciplinary situation.

Do let us know if you would like our input with drafting, reviewing and implementing your social media policy. We would be delighted to assist.

Sarah Tahamtani

Partner

sarah.tahamtani@clarionsolicitors.com

Upcoming events...
We are delighted to announce that we are once again sponsors for the Leeds 10k Clarion Corporate Challenge and event is now open for entries. The challenge provides a great incentive for staff to get fitter, throw down the gauntlet to their rivals and, more importantly, raise money for a good cause. For more information on this year’s run and how to enter a team please visit our website.

Seminar: Milestone Cases which have shaped Employment Law, Tuesday 21 April 2015 – if you have not yet reserved your place at our next event please email heather.oates@clarionsolicitors.com

There are only limited places available!

Changes to statutory rates

A
t the start of next month a number of statutory rates will change. These are as follows:

Changes on 5 April 2015:
The standard rate for Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay and Shared Parental Pay will increase from £138.18 to £139.58 per week.

Changes on 6 April 2015:
The weekly rate for Statutory Sick Pay will increase from £87.55 to £88.45.

The lower earnings rate for National Insurance Contributions (below which employees have no entitlement to Statutory Maternity Pay, Statutory Adoption Pay, Statutory Paternity Pay, Shared Parental Pay or Statutory Sick Pay) will increase from £111 to £112 per week.

The statutory maximum for a week’s pay will increase from £464 to £475.

The maximum compensatory award if a claimant is successful in a claim of unfair dismissal will increase from £76,574 to £78,335 or the claimant’s annual salary, whichever is lower.

Redundancy and the meaning of ‘establishment’

When an organisation is facing a redundancy situation there is a requirement to carry out collective consultation with representatives if there are 20 or more jobs to be made redundant at one establishment. If the number of redundancies is 20-99 the consultation must last for at least 30 days. If the number of redundancies is 100+ the consultation must last for at least 45 days. No dismissals can take effect until this consultation period has ended.

An important question is how the number of redundancies is calculated. Is an employer required to just consider proposed redundancies in one location? Alternatively, if the employer operates at more than one location and there are redundancies proposed at more than one location should the total redundancies be added together to determine the length of the consultation period?

This was the question raised back in 2008 when Woolworths went into administration and many stores were closed. Woolworths wanted to treat each store as an individual establishment, so that collective redundancy consultation was not required. The Court of Justice of the European Union was asked how an ‘establishment’ should be defined, since UK law on collective redundancy consultation comes down from EU law.

We are still waiting for the Judgment from the Court of Justice, but we do now have the Advocate General’s opinion on the matter. Although the Court of Justice does not have to follow the Advocate General’s opinion it is likely that it will do so.

The Advocate General has said that EU law does not require an employer to add all the proposed redundancies together for the purposes of collective consultation if they are being made across more than one location, but neither does it say that each location should be treated separately. In essence, the Advocate General’s opinion is that individual countries within the EU have to determine the approach for themselves.

However, the Advocate General has recommended that the number of proposed redundancies should be determined with reference to the ‘local employment unit’. This suggests that each location (or store, as in the Woolworths case) could be treated separately for collective consultation purposes, or only added together if the locations are geographically close to each other. The issue of geographical proximity is likely to be tested by further case law, so watch this space.

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Obesity and disability

Last year the Court of Justice of the European Union ruled that the obesity of an employee could be a disability if it hinders full and effective participation at work. This ruling was made in the case of Karsten Kaltoft v Billund Kommune [2014] in which a Danish childminder argued that he had been dismissed due to his weight and that this was discrimination on the grounds of disability. The Court was clear that obesity will not always be a disability, the question will be the impact of the obesity.

This ruling has now been applied in a UK case – that of Bickerstaff v Butcher [2015]. Bickerstaff was severely obese. As well as struggling due to his weight he suffered from gout, shortness of breath, sleep apnoea and mobility problems. He reported that he was taunted about his weight by colleagues on a daily basis. He brought claims of harassment on the grounds of a disability against his employer and also against specific employees that he accused of harassment. All the claims were settled apart from one against Butcher, who Bickerstaff reported as a persistent harasser.

The Employment Tribunal found that Bickerstaff’s obesity did hinder his full and effective participation at work, and that he had been harassed on the grounds of disability.

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Penalties for smoking e-cigarettes

The use of e-cigarettes is on the increase. Although many employers do not allow the smoking of traditional cigarettes anywhere on their premises do the same rules apply to e-cigarettes?

A recent case has raised this question. In Insley v Accent Catering [2015] the employee concerned worked as a Catering Assistant for a company providing school meals. She was seen smoking an e-cigarette on school premises in full view of pupils, and a complaint was made to her employer. She was invited to a disciplinary hearing, but resigned before it took place. She argued that her employer had breached her contract of employment in convening the hearing, and claimed constructive dismissal.

The Employment Tribunal held that the employer had followed the correct procedures, and there was no breach of contract which meant that her claim failed. However, the Employment Tribunal did comment that if she had been dismissed, the company’s anti-smoking policy would have been crucial in determining the fairness of the dismissal. The company policy did not specifically address the smoking of e-cigarettes, it just addressed the smoking of traditional cigarettes. It therefore seems that the employer had a lucky escape.

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Paying the National Minimum Wage

There is a requirement to pay an employee at a rate which is not less than the National Minimum Wage (NMW). However, is that the rate before or after deductions? This question was recently addressed in the case of Commissioners for Revenue and Customs v Lorne Stewart plc [2014].

In this case the employee had entered into an agreement that she would repay her employers the cost of a training course if she left within two years of completing the training. She resigned within that time period, and her employers deducted the cost of the training course from her final salary payment. This meant that the final salary payment was less than the NMW and she claimed that this was unlawful.
She was unsuccessful. There are a number of deductions that can be made which may result in the net pay being less than the NMW. The key is to ensure that the gross pay is always equal to or more than the NMW.

The deductions that can be made are PAYE; National Insurance; any contractual liabilities that the employee might have (such as a requirement to repay costs of training, as in this case); repayment of a loan or advance of wages; repayment of an accidental overpayment by the employer; buying shares/share options in the company; subscriptions (including subscriptions to a pension scheme) and a set amount can be allowed for accommodation supplied by the employer.

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