October’s newsletter looks at the key developments in employment law over the past month.
The National Minimum Wage increased on 1 October 2016 by £0.25p for employees between 21 and 24 years old. We look at a recent case relating to National Minimum Wage that serves as a reminder for employers to check that employees are being paid in accordance with the required rates.
We examine recent discrimination cases, including a key Scottish decision dealing with sex discrimination relating to enhanced shared parental leave pay. We also look at case decisions which dealing with reasonable adjustments for employees with disabilities. Also included is a summary of a key case relating to sex discrimination and flexible working requests.
We explore two recent decisions which look at a ‘fair’ reason for dismissal, along with a key case examining the issue of timing of early conciliation in relation to issuing a claim.
Thanks to all those who attended our Apprenticeship Levy seminar in conjunction with BPP and Mazars on 10 October 2016. We hope you found the seminar useful. Please get in touch if you would like a copy of the materials.
Scottish Tribunal awards remedy for discriminatory levels of shared parental pay
In a case that has attracted a lot of discussion, a Scottish Employment Tribunal has published its decision in the case of Snell v Network Rail Infrastructure .
Mr and Mrs Snell both worked for Network Rail and wanted to take shared parental leave. The Company’s shared parental leave policy allowed for leave of up to 52 weeks to be shared between parents. The Company offered mothers shared parental leave pay at 26 weeks full pay, followed by 13 weeks statutory pay. In contract, fathers were only entitled to 39 weeks statutory pay.
Mr Snell brought a claim for sex discrimination against Network Rail. Network Rail argued that the policy was objectively justified as a proportionate means of achieving its aim of recruiting and retaining women in a male-dominated workforce.
Network Rail conceded that they had discriminated against Mr Snell. The Scottish Tribunal awarded Mr Snell approx. £23,000 in compensation for future loss and injury to feelings.
This decision is not binding, but could be persuasive in how another tribunal may approach a similar case in future.
- Review your shared parental leave policy- does this treat mothers/primary adopters and fathers/primary adopters partners equally.
- If you offer enhanced maternity pay, consider whether to offer enhanced shared parental pay at the same rate.
- If there is a disparity between your levels of maternity pay and shared parental leave pay, can you justify this?
Ensure your approach to the National Minimum Wage is correct
It has been widely reported in the popular press that a group of 17 care workers are bringing a claim in the Employment Tribunal that they have not received the National Minimum Wage. The claim is against Servacare which provides services for a number of councils across the country.
The employees are arguing that they were providing care for elderly individuals who were living at home. They were required to stay in the individual’s home, and were not allowed to leave whilst they were on shift. At night, they were allowed to sleep, but they had to wake to deal with the individual’s needs. They are arguing that when their pay is divided by the number of hours that they were required to be on the premises, it is less than the National Minimum Wage (their claims relate to a period of time prior to the National Living Wage being introduced).
The employer argues that they were actually paid more per hour than the National Minimum Wage, disputing the number of hours that they were working.
We wait to see how this case develops, and we will bring you more details and the judgment in due course.
- Ensure the new rate of National Minimum Wage (payable from 1 October 2016) and the National Living Wage is being paid to all relevant employees.
- Think about any employees you have who might disagree about the hours that they are working.
- If you have employees who are on call, are required to stay on your premises overnight, or spend time travelling between locations are you sure that you are paying them correctly?
- If you are at all unsure please contact us to discuss the specific facts of your situation.
Withdrawing an offer of employment was a breach of contract
It is long accepted that a verbal offer of employment is binding, in the same way that a written offer is binding. In McCann v Snozone Ltd  the applicant for a job was awarded £2,708 (one month’s salary) and the employer was ordered to pay his Employment Tribunal fees of £390 when an offer of employment was not honoured.
McCann had two interviews with a recruitment agency working on behalf of the employer. He then claimed, and the Employment Tribunal believed, that he was offered and accepted the job in a telephone conversation with the agency. The job never materialised. Even though all the details of the job had not been confirmed the Tribunal found that there was a contract, and it had been breached.
- Ensure all those involved in recruitment and interviewing for your organisation, whether they are employees or a recruitment agency, understand when they can and cannot offer a job.
- Wherever possible avoid making verbal offers, or if you do make a verbal offer follow it up in writing as soon as you can. Verbal offers just open up the possibility of misunderstanding and confusion.
Guidance on making reasonable adjustments
If an employee is disabled, as defined in the Equality Act 2010, there is a requirement to make reasonable adjustments to assist that employee to work. This needs thinking about when recruiting a disabled employee, and for existing employees who might suffer an illness or injury and become disabled. It is also important to consider disability when moving employees around different jobs.
In Lowmoore Nursing Home Ltd v Smith  the employee concerned was a Care Worker, and suffered from a heart condition that meant she could not lift heavy loads. She worked in a Home with three different sections, and her attendance improved when she was moved to one particular section. She was then told that she was being moved to a section where there were more demanding patients, and she was concerned that this would make her heart condition worse. She was told she would not have to lift patients, but she did struggle with work in this section and resigned, claiming constructive dismissal and disability discrimination.
She was successful. A reasonable adjustment would have been keeping her in the section where she did not struggle to work.
- If you have a disabled employee always consider the impact on that employee if you need to relocate the employee or change the job in any way.
- Talk to the employee, and listen to any concerns that the employee might have.
- If necessary, seek medical advice about the impact of the changes on the employee.
- Always consider what reasonable adjustments could be made to assist the employee to work.
Pay protection could be a reasonable adjustment
Leading on from the last case, we can look further at what a reasonable adjustment might be. In the case of G4S Cash Solutions (UK) Ltd v Powell  an employee had been moved from a role as an Engineer maintaining ATM machines, to a less skilled job as a ‘runner’ due to his disability meaning that he could no longer do engineering work. It was decided to make the change of job permanent, and it was decided to reduce his pay by 10% to reflect the lower level of skill that was needed. The employee objected, and argued that a reasonable adjustment was to maintain his pay at his current rate.
He was successful in his argument. Although the Employment Appeal Tribunal was clear that pay protection will not always be a reasonable adjustment, in this case the employer had the resources to make that adjustment and it was reasonable to do so.
- Do not automatically reduce pay if you move a disabled employee to a less skilled job.
- Always seek our advice before making a decision about pay in this sort of situation, because there will be a need to carefully consider what a reasonable adjustment might be.
Ensure that dismissals are for a fair reason
Dismissing an employee because they have made a protected disclosure is an automatically unfair dismissal. A protected disclosure (also referred to as whistle blowing) is when an employee discloses to their employer, or an appropriate regulatory body, something that they believe to be wrong – and it is in the public interest to make this disclosure. An interesting question has arisen about a dismissal where the manager did not know that the employee had made a protected disclosure.
In Royal Mail Group Ltd v Jhuti  the employee was concerned that Ofcom and Royal Mail protocols were not being followed at a customer meeting. She emailed her manager about this, who questioned her knowledge of protocol (she was still in her probationary period, so was new to the job) and urged her to retract her email. She did so. Her manager then started treating her differently, performance managed her and so she raised a grievance and then went off sick.
A different manager was asked to investigate the situation, and was told that she had raised a concern but had retracted it. The manager was not told the detail of the concerns, and was just given information about her performance. It was decided to dismiss her, and she argued that this was automatically unfair because she was dismissed due to making a protected disclosure. The employer argued that this was not possible because the dismissing manager did not know about the disclosure.
The Employment Appeal Tribunal found in favour of the employee. Although the dismissing manager did not know about the disclosure this was because he had been misled by the line manager. The unlawful motives for the dismissal could still be attributed to the employer.
- If you do ask a separate manager to make a decision about dismissal ensure that they have all the information they need. Do not allow one manager to hide crucial information.
- Never dismiss, or treat an employee less favourably, because they have made a protected disclosure.
Refusal of flexible working request was sex discrimination
If an employee makes a request for flexible working you can refuse it. There are a number of grounds which you can give for the refusal, including a detrimental impact on quality or on performance of the work. However, you do need to be careful that you are not discriminating when you refuse a request, as shown in the case of Seville v Flybe plc .
Seville had worked as cabin crew for 13 years. She worked on a flexible rota, which meant that she worked 22 days a month – allocated by the airline. After having a baby she asked to work on a fixed rota of 11 days a month, because not knowing when she was going to be working until relatively late each month made it very difficult to arrange childcare. The request was refused, and she argued that this was sex discrimination because it was more difficult for women, compared with men, to work the shift patterns.
Her argument was successful.
- If you operate any shift patterns do consider whether they could be seen as discriminatory in any way. Although sex discrimination might be the obvious issue, also consider whether they could be more difficult for a disabled employee.
- Ensure that you can justify why you refuse any request from an employee for flexible working.
Dismissal following a final written warning was fair
If you have given an employee a final written warning, and they then do something similar whilst that warning is still live, it could certainly be fair to dismiss.
In the case of Trye v UKME  the employee worked as a housekeeper for an organisation that supplied staff in London for over 200 properties. The employee disobeyed instructions, and entered a property when she had been told not to. She was given a final written warning for not following procedures. Whilst this final written warning was still live on her record she was absent for four days without a medical certificate, and did not follow company procedures when reporting her absence. She was dismissed.
This was found to be a fair dismissal. There was a final written warning that was still in date at the time of her dismissal. The two events both related to not following company procedures. Although the procedures were different, the lack of following procedures was the underlying reason for both issues. Indeed, the Employment Appeal Tribunal commented that if there is a final written warning in place it will only be in rare circumstances that further misconduct does not lead to dismissal.
- If an employee does something that warrants disciplinary action always check their file to determine whether there are any live records on file.
- If there are, and the issues are related in some way, it could certainly be appropriate to give the next level of warning.
An important point about early conciliation
If an individual wants to bring a claim to the Employment Tribunal they must first, in the majority of cases, engage with the ACAS Early Conciliation process. In the case of Compass Group UK and Ireland Ltd v Morgan  an interesting question of whether or not the employee had engaged with the process was raised.
Morgan had transferred to Compass. She suffered from acute anxiety, which was a disability. She was moved to work in a different location which was in a less senior role, and raised a grievance about this. She started the Early Conciliation process and a certificate was issued by ACAS to say that she had engaged.
After two months, her grievance had not been addressed and she resigned claiming constructive dismissal and disability discrimination.
The employer argued that she could not bring these claims to the Employment Tribunal because she resigned after she engaged with the Early Conciliation process. However, the EAT disagreed saying that the resignation was due to the same grievance that she had originally raised, it was just ongoing.
- Do not presume that an individual will have to restart the early conciliation process if there is no resolution and the situation develops further.
- Seek our advice if you receive a copy of a claim to the Employment Tribunal and you do not agree that the individual is eligible to make that claim.