News round up
We have a number of exciting events in the pipeline and seminars already scheduled for later in the year. Please click here to view our seminar programme and keep an eye on your inbox for invitations to these events in due course.
Our next event is on Thursday 3 May 2018 where we will be discussing the Mental Health in the Workplace. More information is available on our website. Please note that we have very limited spaces left for this event so let us know as soon as possible if you want to come along.
Your should have received a special "GDPR Newsletter" last week which focussed on the impact of GDPR from an employment law and HR perspective. We hope that you have found the newsletter useful, if you have not seen it yet, or want another look, it's available here.
We are also in the process of finalising the invitation to our next Mock Employment Tribunal. This Mock Employment Tribunal was so popular last year that not all of those who wished to attend were able to do so, due to limited places, and we know some of you missed out. Therefore, to give everyone the opportunity to benefit from this valuable experience, we have decided to examine the same claim again. We will be sending invitations out very soon.
In the meantime, here is our round up of key cases and legal changes over the last few weeks.
Itemised pay statements
Legislation has been passed which increases the information required on employees’ payslips. From 6 April 2019, you will need to state the number of hours that the employee has worked (if their wages vary according to the amount of time worked). You must either include a total number of hours and the pay earned, or - if there are different rates for different work - this will have to be summarised separately.
- Although the deadline for this is still some time away, we recommend that you start to identify which employees will be covered by this requirement, and then identify how you will amend your payroll systems so that this information can be produced on payslips.
Consultation on ‘good work’
Last summer the commission led by Matthew Taylor looking at working practices in the modern workplace produced a report following their investigations (often known as the ‘Taylor Report’). This report contained a large number of recommendations. The government has now reviewed this report and has announced four consultations. They are covering the topics of:
- Employment status
- Transparency in the workplace
- Agency workers
- Enforcement of employment rights
We will be following the consultation carefully, and will keep you updated as, and when, any proposals are made law. For now, be reassured that this is just consultation and you do not need to take any action.
Increase in rates
The government has announced a number of increases in statutory rates which are effective from 6 April 2018. The important ones for you to note are:
- Maximum week’s pay will increase from £489 to £508. This is the maximum figure you should use when calculating such things as statutory redundancy pay.
- Maximum compensatory award in unfair dismissal increases from £80,541 to £83,682 but this is still capped at the employee’s annual salary if this is lower.
- The weekly rate of Statutory Sick Pay increases from £89.35 to £92.05.
- The lower rate for Statutory Maternity/Adoption/Paternity/Shared Parental Pay increases from £140.98 to £145.18 (the lower rate is that which is paid for 33 weeks, after the 6 weeks at 90% of salary – for statutory paternity pay both weeks allowed are paid at this lower rate).
- To qualify for Statutory Maternity/Paternity/Shared Parental Pay the employee must be earning at least £113 per week if the baby is due on or before 14 July 18, and at least £116 per week if the baby is due on or after 15 July 2018.
- To quality for Statutory Adoption Pay the employee must be earning at least £113 per week if the matching/notification occurs on or before 31 March 2018 and at least £116 per week if the matching/notification occurs on or after 1 April 2018.
In addition, changes to tax laws mean that any 'payment in lieu of notice' payments (PILON payments) made on or after 6 April 2018 will be subject to PAYE and NI deductions (even if paid under a settlement agreement).
What you should know about an employee’s health?
If an employee is disabled, as defined in the Equality Act 2010, you are required to make reasonable adjustments to help the employee overcome any disadvantage that results from their disability and to assist the employee to work. However, what happens if you do not know that the employee is disabled? If you do not make reasonable adjustments, could it be argued that you have discriminated against the employee on the grounds of disability?
In the case of Donelien v Liberata UK Ltd  the employee had various health problems, which led to a lot of sickness absence. The employer sought advice from Occupational Health, and also had a number of meetings with the employee. Occupational Health services (OH) concluded that the employee was not disabled. The employee was generally unhelpful, refusing to let OH contact her GP, and either failing to attend meetings with the employer, or being difficult when she did attend. She was eventually dismissed and claimed disability discrimination.
The employer argued that it had sought OH advice and it had tried to find out more about the illness from the employee, but she was generally obstructive. Although it was determined by the Employment Tribunal that she was disabled in the latter stages of her employment, it was also accepted that the employer did not know and reasonably could not have known. The Court of Appeal has upheld this decision.
- If an employee’s sickness absence is a problem, you should always consider if s/he might be disabled. However, you only have to do what a reasonable employer would do. If the employee will not co-operate and allow you, for example, to contact their doctor then you can only work with the information that you have.
- Always write to the employee with a request for more information, or to contact their doctor. This means that you then have an audit trail showing what you tried to do.
- Make it clear to the employee that you will still make decisions about future employment, even if the employee will not co-operate and discuss their health problems.
- Give the employee the option of talking to an alternative manager, particularly if the illness is particularly sensitive and they want to talk to a manager of the same gender as themselves.
Text messages and phone calls were sexual harassment
Sexual harassment is in the news regularly at present. Some of the allegations hitting the headlines involve quite extreme and shocking treatment. However, it is important to remember that harassment can occur without physical contact.
In Steele v Uniquely Chic Furniture Ltd and Bennett  the employee received several phone calls and text messages from her line manager. The communications were of a sexual nature, asking her to engage in sexual intercourse and suggesting that she would lose her job if she didn’t comply. The employee eventually resigned due to stress and anxiety. The employer argued that she had made up the claims, and that she was addicted to alcohol and painkillers. However, her allegations were accepted and her claim of sexual harassment was successful.
- Always investigate any allegation of sexual harassment. Do not presume that the employee is right or wrong in what they are alleging - approach the investigations with an open mind.
- During the investigations protect the identity of the accuser as much as possible, but make it clear to the employee that it might not be possible to completely disguise who has made the allegations.
- If an employee has sexually harassed a colleague it could be gross misconduct. Contact us to discuss the situation before taking any action.
Deal effectively with harassment
Carrying on the topic of harassment, a recent case has given us an excellent example of how not to manage a claim of harassment. In de Souza E Souza v Primark Stores Ltd  the employee, a transgender woman, worked for the employer for just 6 months.
In that short time a number of events occurred – a Supervisor referred to her as ‘Alexandra/Alexander’ in front of customers and colleagues, comments were made about her voice, a colleague told her she had ‘evil in her’ and an electrician was told he could enter the women’s toilets to do some work because no women were in there (the employee was in the toilets at the time). When she raised a grievance she was not informed of the outcome and was not allowed to appeal it. She was awarded over £47,000 for harassment and constructive dismissal.
- Make it clear to employees that behaviour which amounts to harassment will not be tolerated. Do not allow ‘banter’ that could cause offence to individuals.
- If employees do make unacceptable comments, act promptly. This could include taking disciplinary action.
- If an employee raises a grievance, keep them informed about the progress of your investigations, and always meet with them to explain the outcome.
- Confirm the outcome of any grievance in writing, making it clear that an employee can appeal against the conclusions that you have reached or the actions you propose to take.
Manage restructurings carefully
It is not uncommon to need to restructure an organisation, but if this has a potentially negative impact on an employee’s salary, you do need to make sure that you are acting reasonably.
In Dinham v William Hill Organisation  it was decided to merge the role of Shop Manager and Deputy Manager into a new role of Customer Experience Manager. A number of employees were affected by this decision. In general, the proposals were accepted, but one particular employee complained that it would mean a drop in salary for her with her £25,549.84 annual salary falling to £20,721. She had 18 years’ service with the company.
A period of consultation took place, but no agreement was reached. Eventually she was dismissed, and when she appealed she was told that her appeal was out of time. She successfully claimed unfair dismissal. Although the employer had engaged in consultation, its decisions not to allow her an appeal, and taking no consideration of her length of service, meant that the dismissal was unfair.
- In any reorganisation situation you must consult with employees. Even if there seem to be no objections to the proposals make sure you meet with employees and answer any questions.
- Confirm the issues raised, and your responses, at each consultation meeting in writing.
- If you cannot reach agreement it could potentially be fair to dismiss the employees, but you must be able to show that you have acted reasonably. Please contact us before going ahead with a dismissal so that we can advise you, given the specific facts of the situation.
Your obligations when an employee has IVF treatment or miscarries
An employee must not be treated less favourably if they are pregnant or on maternity leave. Care also needs to be taken if an employee is undergoing IVF treatment or miscarries.
In Ginger v Department for Work and Pensions  the employee had her first child following IVF treatment. She then had further IVF treatment to have another child. She suffered two miscarriages. She alleged that her line manager questioned whether it was a good idea for her to have further IVF treatment, as she might not cope with a second child and she also claimed that she was refused leave for IVF treatment. She successfully argued that both incidents amounted to sex discrimination.
- There is no legal right to take time off to receive fertility treatment. However, it is more common for fertility treatment to be invasive for women rather than men, and therefore treating a women less favourably because she is having fertility treatment could potentially be sex discrimination.
- You need to be sure that you treat a woman the same as you would treat a man. Ask how you would respond if a man needed time off for medical treatment. Treat the woman in the same way.
- Do not treat a woman less favourably because she has time off following a miscarriage (we recommend that you do not include any absence relating to a miscarriage in the absence figures if you operate a ‘trigger’ system). It is discriminatory to treat a woman less favourably because of her pregnancy/maternity leave and, of course, a miscarriage is directly related to a pregnancy.