We will be hosting our Annual Legal Update on Thursday 24 October 2019. The invitation went out last week; we hope that you have received it! If not, you can find all the details on how to register on our website.
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.
Preparing for Christmas
We hope that you have had a restful and enjoyable break over the summer. As the sun starts to recede, it is time for many of us to start thinking about Christmas. Some of you will have increased demand for products or services, and many of you will have a lot of employees wanting to take time off over the Christmas period. What can you do, and what can you not do, when managing the staffing requirements?
1. You can refuse a request for annual leave
No employee has the right to take annual leave at any time of year, they always need your permission. If you must have some cover over the Christmas period, make sure that your approach to approving leave is not discriminatory. If you give priority to those with longer service, this could be indirect age discrimination. If you give priority to those with caring responsibilities, this could be sex discrimination. Try to agree an approach with your employees that is fair and can be applied each year (first come, first served may be the easiest option).
2. There is no legal right to leave on a bank holiday
Christmas Day and Boxing Day are bank holidays, but there is no legal right to take these days as leave. If an employee has to work on these days, there is no legal right to enhanced payment. However, your company holiday policy might give an entitlement to time off, or enhanced pay if working, and, if so, you should follow your policy.
3. You can use attendance bonuses
If attendance at work over the Christmas period is particularly important you could pay a bonus to employees who attend and take no sick days off. However, if you take that approach, you must be flexible with any disabled or pregnant employees. Penalising them because of disability-related, or pregnancy-related, absence would amount to discrimination.
4. You can insist that employees take leave during the Christmas period
If you want to close down between Christmas and the New Year, you can tell employees that they must keep the required amount of leave to cover this period. It is best to give employees lots of notice of this, so that they can keep back the required amount of leave.
Holiday pay for part-time workers
If an employee works throughout the year, but works fewer hours than a full-time employee, their holiday pay will be part of their ‘normal pay’. If they take a week’s leave, you pay them what they would have received if they had been at work. Calculating holiday pay becomes more complicated if the individual does not work regular hours, for example, if they are working on a zero hours contract. The Acas advice is to pay holiday pay at 12.07% of usual earnings (this is calculated by dividing 5.6 - the number of weeks of annual leave set out in the Working Time Regulations 1998 - by 46.4 – which is 52 weeks minus 5.6). However, the Court of Appeal ruling in Brazel v The Harper Trust  suggested this approach should not be used for part-year workers (i.e. those on permanent contracts but who only work part of the year).
The employee in this case was a music teacher in a school. She did not work regular hours, and only worked during school terms. Her holiday pay was calculated by taking 12.07% of her earnings, but she argued that this was penalising her for working part-time. She argued that her holiday pay should be calculated in the same way as full-time employees, taking an average of earnings over the 12 weeks prior to her period of leave. This meant that she received considerably more holiday pay (and proportionately more than many full-time employees). She has been successful in her argument.
- Consider whether any of your workers could be classed as part-year workers. If you are unsure, please contact us for advice.
Ensuring a fair redundancy
If you have a group of employees doing broadly similar work, and you have a need to reduce staffing levels, you are likely to be facing a redundancy situation. You need to ensure that your process for selecting who is dismissed due to redundancy is fair.
In Ghaffar v Age UK Calderdale and Halifax  there was a need to make redundancies and a selection process was carried out. An error was made in the scoring, which meant that Ghaffar was wrongly selected for redundancy. This was found to be an unfair dismissal.
- When selecting an individual for redundancy, ensure that the selection criteria are not discriminatory. If you are unsure whether you can use particular criteria, please contact us for advice.
- If possible, ask two managers to independently score all the employees in the selection pool, and then take an average of their two scores.
- Before writing to an employee and putting them ‘at risk’ of redundancy, double check that the scores have been added up correctly!
Also, of interest in the Ghaffar case is the finding on whistleblowing. The employee alleged that he had been dismissed because he had made a public interest disclosure. A senior manager had appointed his wife to a role in the organisation. As the organisation was a charity, Ghaffar argued that this was an improper use of charitable funds and therefore reported this to both the national office of the charity and the Charity Commission. However, it was ruled that this was not a public interest disclosure because, although there clearly had been nepotism, no law had been breached.
- If an employee discloses something to you saying that it is a public interest disclosure, always take it seriously. Investigate what is alleged.
- Always report back to the employee on the findings of your investigations.
- Make sure that an employee does not suffer any detriment because s/he has made a public interest disclosure.
Dismissal for bringing the company into disrepute
If one of your employees does something in their own time, which you think is wrong, can you dismiss them for bringing your company into disrepute?
In Keable v London Borough of Hammersmith and Fulham  an employee of the council was filmed at a political rally. He made comments which were potentially offensive about Jews, and these comments went ‘viral’ on Twitter. He did not make any reference to the council when making his comments, and it would not have been possible to link him to the council.
He was dismissed, although he had 17 years’ unblemished service. It was decided not to issue him with a disciplinary warning because there was a concern that he would not heed it, given previous comments he’d made about his right to freedom of expression.
This was found to be an unfair dismissal. It was not possible to conclude that he had damaged the organisation, and a lesser punishment of a disciplinary warning had not been seriously considered.
- If it is important to your organisation that your employees do not comment on topics, or get involved in particular activities, you must make it clear to them in advance (i.e. in your disciplinary or social media policy).
- Review your social media policy to ensure that you are clear about anything that you would categorise as bringing your company into disrepute.
- Before dismissing any employee for activities outside of the workplace contact us to discuss the situation.
Harassment is defined in the Equality Act 2010 as "Unwanted conduct which has the purpose or the effect of violating the other's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment". The definition is quite broad, and different employees are likely to have different opinions about what might violate their dignity or create an unacceptable working environment.
In Prewett v Green King Services Ltd  the female employee was subject to a number of comments that she found offensive, in addition to some unwelcome touching from a male colleague. She successfully argued that this was harassment, even though the colleague referred to it as ‘banter’ and emphasised that there was no malicious intent in anything that had occurred.
- Make sure that your line managers are aware of the definition of harassment, and the subjective element of assessing whether or not something amounts to harassment. Ensure they know that the intent of the behaviour is not most important, it is the impact that matters.
- Always investigate allegations of harassment promptly, and report back to the individual who has made the complaint.
- If appropriate, take disciplinary action against the individual who has carried out the harassment.
Poor performance caused by disability
If an employee is disabled, as defined in the Equality Act 2010, there is a requirement to make reasonable adjustments and not to penalise the employee for any negative impact that the disability might have.
In Kuppala v HBOS plc  the employee was a branch manager, and had diabetes. The diabetes was a disability, and was not well controlled. This was partly due to the employee needing to work long hours to cover staff shortages, and therefore not eating regularly, and partly due to the stress of the job. The employee was dismissed for locking up at the end of the day, and not realising a customer was still on the premises. The customer remained locked in for three hours. There had previously been several occasions when the employee had not locked up correctly and had left the keys in the door.
The employee successfully argued that this was disability discrimination. The employer should have sought medical advice about the employee’s condition, and then made appropriate adjustments.
- If an employee is disabled and is under-performing in some way you must consider whether the poor performance is linked to the disability.
- If there is a link between the performance and the disability you must consider if there are any reasonable adjustments that can be made. You can ask the employee for their opinions about adjustments that might help, but you cannot make them responsible for this. Ultimately, the responsibility is yours.
- If you are planning to dismiss an employee who is, or you think might be, disabled please contact us to discuss before taking any action.
Introducing our new Regulatory Team
Our new Regulatory Team is ready to help you with any health and safety issues in your business. Accidents at work involving employees or members of the public may be reportable and can result in formal investigations by regulators. Our regulatory lawyers can help you set up an effective internal investigation to establish what went wrong – and in a way that avoids self-incrimination. They can help you to manage external investigations and represent you if you are prosecuted. Court fines for health and safety breaches have increased dramatically in recent years as a result of the Definitive Sentencing Guideline. Our experienced team can help you build a strategy to manage your exposure and protect your reputation.
They also advise on food law – food safety, food hygiene and food labelling – helping food businesses to react to incidents and to bring new products to market. In the trading law space, they can provide support with product safety issues, consumer protection, pricing and age restricted sales. They can also assist with advertising – advising on whether advertising copy complies with the CAP Codes, liaising with the ASA on complaints, and challenging the ads published by your competitors.