December, 2018

Do basic pre-employment checks before confirming offer

A recent employment tribunal ruling highlights the importance of having a robust recruitment and selection process.  Only after an airline pilot started a position as a captain with West Atlantic UK Limited did the airline discover that he had lied on his application. Not only had he provided a false reference from a false email address he also had no previous experience as a captain. As an alternative to dismissal for gross misconduct, West Atlantic offered him the opportunity to resign ‘with immediate effect’, which he accepted.

However, he subsequently issued a claim for three months’ contractual notice pay, which West Atlantic refuted and counterclaimed for £4,725, the costs it had incurred in training him.

The employment tribunal dismissed the claim for notice paystating that the employer had arranged training based on his alleged experience. Had the airline known that he had no experience as a captain they may not have hired him and sothey succeeded in claiming the training costs. However this was a costly exercise which could have been avoided had they taken some precautions to minimise risk:

Don’t accept a reference from a personal email address. Arrange to speak with the referee, obtain their work email address and ensure all communication is via a professional address. Check their work profile to determine they exist.
Mind the gaps: If there are gaps in the applicant’s work history, ask why and obtain further information if necessary.
Ensure offers of employment are made subject to satisfactory references: This should be clearly stated in the offer letter. This will allow you to immediately withdraw any offer of employment should the candidate fail to provide a suitable reference. More importantly, if something comes to light after employment has already commenced, you will be able to rely on the wording in the offer letter to immediately terminate the employee’s contract without the need to provide contractual notice.
  • Posted on December 28th, 2018

Social Media policy guidelines

Ryanair has been in the news again for dismissing cabin crew staff for gross misconduct. It is claimed that the crew staged a photograph showing them sleeping on an airport floor in the crew room after being grounded due to storms in Porto.

The airline described the photo, which was widely shared by the public across social media, as “behaviour which damaged their employer’s reputation and caused an irreparable breach of trust with these six persons”.

There is case law which provides guidance to employers on when it may be fair and appropriate to dismiss an employee for negative comments made on social media when the employer can be identified resulting in damage to the employer’s reputation.

A clear policy on social media should include:

examples of unacceptable behaviour, such as making comments that could damage the employer’s reputation.
a reminder to employees not to rely on Facebook’s privacy settings, as comments made on these sites can be copied and forwarded by third parties without their consent.
a warning that serious breaches of the policy could lead to disciplinary action, including dismissal.

Given the widespread use of social media by employees, it is important for employers to have in place a policy on the use of social media that is communicated to staff. Where an employer has a clearly written social media policy in place, which is applied consistently and employees are made aware of the policy and the consequences of any violations, a dismissal is more likely to be fair.  Employers should always bear in mind that as well as establishing a fair reason for dismissing, a fair dismissal will always be subject to the employer following a fair dismissal process and considering any mitigating circumstances, or alternatives to dismissal (such as demotion or a final written warning) where appropriate.

  • Posted on December 28th, 2018

Part time and casual staff holiday pay conundrum

There has been a rise in the number of claims at employment tribunal by part time workers claiming that they have not been correctly paid for holidays.

The formula used by many employers for calculating casual hours’ workers holiday entitlement is that they accrue holidays at a rate of 12.07% of hours worked.  This formula is based on 5.6 weeks’ holiday being 12.07% of 46.4 weeks, which is the 52-week year minus 5.6 weeks’ holiday entitlement.

Whilst this formula is not set out in law, it is a rule of thumb that makes the calculation of holiday entitlement simpler for those with irregular working patterns.

The legal minimum holiday to which all workers are entitled (whether full-time or part-time) are 5.6 weeks’ paid leave. For workers who work five days per week (i.e. full-time), this equates to 28 days’ paid leave each year.  For part-time workers who work set hours or days each week their holiday allowance is relatively straight-forward to calculate.  For example, a part-time worker who works three days a week is entitled to a minimum of 16.8 days’ annual leave per year. This is because one week for this employee is three days and not five. There is no requirement to round up entitlements to the nearest full day, although it is usually easier to do so for administrative purposes. However, employers cannot round the entitlement down to the nearest day.

Unfortunately, as stated above, the regulations that apply to holiday and part-time workers do not set out any precise formula for calculating holiday pay for part-time workers where they do not work fixed hours or days each week, or work during term-time only. This also presents difficulties for accurately calculating holiday entitlement for those who work part-time hours on an ad-hoc basis, such as those employed on zero hours’ or casual hours’ contracts.

Regulations for the protection of part-time workers state that they should not be treated less favourably than a full-time counterpart, unless the difference in treatment can be justified on the grounds that it has nothing to do with the worker’s part-time status. Any less favourable treatment could result in part-time workers pursuing a claim in the employment tribunal and it would be for the employer to justify the less favourable treatment to the tribunal.

  • Posted on December 28th, 2018

What’s in store in employment in 2019?

We predict what is likely to make headlines in the coming New Year below:

Increase in National Minimum Wage

The 2018 Budget announced an increase in both the National Living Wage (NLW) and National Minimum Wage (NMW) in April 2019. Under the new NLW, the minimum hourly rate that workers aged 25 and over are entitled to will increase from £7.83 to £8.21. At the same time, the NMW rate for workers aged between 21-24 will increase from £7.38 to £7.70 an hour; the rate for 18-20-year-olds will increase from £5.90 to £6.15 an hour and those over compulsory school age but not yet 18 will experience an hourly increase from £4.20 to £4.35.

Settled status for EU nationals

Any European workers currently living in the UK will be able to apply for settled status in 2019 which will grant them access to indefinitely remain after the end of Brexit’s transition period. Those who are eligible must give evidence that they have been living in the UK for five years by the time that they send the application.

Payslips

On April 6 2019, changes to the ways that employers issue payslips will come into force. Employers will also be obliged to include the total number of hours worked on payslips for employees whose wages vary depending on how much time they have worked.

NMW for sleepins

Following an earlier Court of Appeal Decision, a ‘precedent’ was launched that workers on sleep-in shifts such nurses wouldn’t be eligible for NMW for time spent sleeping when they weren’t actually working. And, the Supreme Court by Unison is expected to deliver a ruling on a previous case next year which will help shed some light on the rights of sleep-in shift workers.

Gender Pay Gap Reporting

Organisations with 250 or more employees will be obligated to publish their gender pay gap reporting figures by April 4 2019 like last year.

CEO pay gap reporting

In 2019, new legislation will come into play that requires companies with over 250 employees to publish executive pay gaps. This aims to highlight pay discrepancies in the same was as gender pay reporting.

Nondisclosure agreement

Another expected response in 2019 is relative to the use of non-disclosure agreements in the workplace. These agreements were instilled to protect “intellectual property when employees moved from one company to another”. However recent news coverage has highlighted that these agreements are frequently used to silence harassment and bullying claims.

Supermarket Equal pay claims

Tesco, Morrisons, Sainsbury’s and Asda which are fighting for equal pay for female shop workers who feel unequally paid to male counterparts. In 2019, the issue of equal pay may gain more clarity and is likely to encourage more employees to come forward.

  • Posted on December 28th, 2018

Do you have an adverse weather policy in place?

The Scottish Government and the Scottish Trades Union Congress (STUC) has launched a “Fair Work Charter for Severe Weather which sets out fair work practices — including the recommendation that all employers have a severe weather policy.

Economy and Fair Work Secretary Derek Mackay has said: “During the extreme weather last winter, most employers made sensible and responsible decisions regarding their workers. While many businesses faced challenges, we were encouraged by the flexibility provided to staff.”

Those that did not, however, led unions to complain of workers being forced to travel in dangerous conditions and denied pay if they were unable to get into work.

The Charter, which can be found at www.gov.scot, encourages unions, employees and employers to work to agree how the impacts of severe weather can best be managed to protect workers’ safety and to minimise disruption to the organisation.

The weather can create tricky situations for both employees and employers to deal with, making it unsafe for employees to get into work and potentially leading to a loss in productivity and output. Having a policy on steps that the company will take when the weather turns bad is key because it lets everyone know what their position is in advance so there are no surprises for the employee.

A strong policy can outline responsibilities for all members of staff in these situations and also help to keep things fair, setting out whether employees who cannot get into work will be asked to work from home, make the time up or take the time as leave.

It can also establish the potential consequences for what action will be taken if an employee is suspected to be lying, such as pursuing a disciplinary procedure.

  • Posted on December 28th, 2018

Post-Christmas diets – don’t allow banter around weight in the office

Today may well be the day that many diets start following Christmas excesses and the World Obesity Federation has revealed that one in four adults admit they’d be less likely to hire someone for a job if they were overweight. In a survey, 62% of respondents said they had been discriminated against because of their weight.

According to the NHS “obesity is generally caused by eating too much and moving too little”, arguably reinforcing the perception that obesity equals greedy and laziness. However, there is no evidence that people who are overweight are any less productive or take more time off work. In many cases, the causes of obesity go beyond the obvious and can be attributed to, for example, genetics, side effects of other medication or psychological factors.

In terms of equality legislation claims, disability discrimination is only likely to be found on the basis of someone’s weight where this results in such serious health issues that the definition of disability is fulfilled (where the physical impairment is so significant that it is long term and has a substantial effect on the individual’s ability to carry out day-to-day activities).

European case law has already found that obesity might fall under the definition of disability if it hinders a person’s “full and effective participation… in professional life on an equal basis with other workers”. There is therefore scope for disability discrimination claims to be brought around obesity in the future as case law develops.

A good working environment can and should allow for laughter and joking – the law doesn’t stop that, but it does protect those who feel humiliated or demeaned by the behaviour going on around them, and it is a subjective test. The defence of “it was just banter” will not be accepted by tribunals. There is therefore a balance to be struck.  Disability discrimination law aside, taking care of your employees’ welfare, both directly and vicariously, is part of an employer’s duty.

  • Posted on December 27th, 2018

Failure to deal with complaints may result in constructive dismissal

A bar manager who was left with anxiety, PTSD and partial facial paralysis after she was choked by a colleague at a staff Christmas party was constructively unfairly dismissed, according to an employment Tribunal. The judge ruled that the employees’ resignation amounted to an unfair dismissal after her employer failed to properly investigate her complaint.

Apparently the employee overheard one of the company directors joking about the incident, in which a chef had allegedly gripped the employee’s neck and left her unconscious.

The incident took place on New Year’s Day 2017 on the club premises. CCTV footage showed the chef put his arm around the bar manager’s neck. After a few seconds, she tried to push him off before going limp and falling to the ground. It was then that other members of staff realised something was wrong and rushed to help her.

The employee told the tribunal that when she woke up the next day she had no recollection of the incident and believed she had suffered a stroke. It was only after she returned to work to check CCTV footage from the night that she realisedthe incident had occurred.

The court found the directors’ response to the CCTV evidence was unsatisfactory. The employee told her employers she had begun lose faith in their ability to keep her safe in her workplace and felt she had no other option but to quit after they failed to take her complaint seriously.

The judge found that the employer acted in a way which was dismissive of the claimant’s feelings about the incident. He told her to ‘get over it’.

Constructive dismissal occurs when employees who feel their employer has “irretrievably broken the trust and confidence” leave their employment and treat themselves as having been dismissed. Employers who do not take complaints from their staff seriously may run the risk of a finding that they are in breach of this term, meaning the employee is entitled to leave their employment in reaction to it.

  • Posted on December 24th, 2018

Landmark employment tribunal – is veganism a philosophical belief?

A landmark employment tribunal will decide next year whether veganism should be regarded as a philosophical belief and therefore receive the status of “protected characteristic” under the law.

An employee is claiming that he was dismissed from his role as head of policy and research at the League Against Cruel Sports (LACS) after disclosing it was investing pension funds into firms involved in animal testing. He says he was discriminated against because he is vegan.

He describes himself as an “ethical vegan” because his veganism is based on beliefs rather than being simply a health or lifestyle choice and has said that he brought his discovery to the attention of his managers. He claimed that when nothing happened, he informed other employees and was fired as a result.

LACS dismissed the employee for gross misconduct – not because of his veganism. The organisation said it “emphatically rejects this claim” and added that to “link his dismissal with issues pertaining to veganism is factually wrong”.

An employment tribunal will meet in March 2019 to determine whether veganism is a “philosophical belief” protected by law. If the tribunal decides it is, the discrimination claim will proceed to a full trial.

Religion or belief is one of nine protected characteristics covered by the Equality Act, alongside age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, sex and sexual orientation. The Equality Act says a philosophical belief must be genuinely held – not just an opinion or viewpoint. It must also be cogent, serious and apply to an important aspect of human life or behaviour. This belief must be worthy of respect in a democratic society and not affect other people’s fundamental rights.

  • Posted on December 13th, 2018

Low Pay Commission reports worrying statistics of underpayment of wages

Almost one in four British workers on the government’s national living wage are paid less than they should be, according to official figures, with more women than men hit by underpayments. The figures revealed by the government’s Low Pay Commission showed that 369,000 workers – representing about 23% of all of those over the age of 25 who are covered by the national living wage – were paid less than that amount this year. This showed that the number of people affected by underpayment rose from about 339,000 a year ago.

The living wage is independently calculated, voluntary and based on the cost of living. There are two rates, to recognise the higher cost of living in London. These are:

London living wage: £10.20 per hour

UK living wage: £8.75 The national living wage is a statutory minimum all employers must pay staff aged over 25.

National living wage (formerly the minimum wage): £7.83 (other minimum rates of pay apply to workers under the age of 25).

Women were more likely than men to be underpaid the living wage they should have received, while the worst-offending sectors of the economy were in retail, hospitality and cleaning and maintenance. About 1.6 million workers in Britain have their wages set at the national living wage, which is the legal minimum for workers over the age of 25. Having risen from £7.50 per hour in April to £7.83 an hour, Philip Hammond, the chancellor, announced that it would increase again to £8.21 an hour in April.

However, hundreds of thousands of people on the living wage do not always receive the pay rises due to illegal underpayment or mistakes by their employer when the increases are made by the government. Ministers have been urged to impose tougher penalties on companies that pay their staff below the minimum wage, after government figures published two months ago showed that only £14m in fines was taken in a year when rogue employers underpaid their staff by £15.6m.

It is a criminal offence not to pay the minimum wage. Firms found in breach must repay staff all the money they are owed and could face a maximum fine worth 200% of every penny underpaid.

  • Posted on December 13th, 2018

£1million compensation at Tribunal for unfair dismissal following racist attack

A man has been awarded a £1million compensation payment after an Employment Tribunal ruled that he was unfairly dismissed for defending himself from a racist attack.

The former IT manager from an NHS Trust in England experienced an altercation with a delivery driver whilst at work. The driver racially abused the employee, who is of Caribbean descent – and assaulted him.

The employee called the hospital’s security office for help, but nobody came to his aid. Despite an exemplary work record, he was then accused of assault for attempting to take a note of the van’s registration number and defending himself from the attack.

The tribunal heard how the Trust’s disciplinary consistently painted the employee as ‘the aggressor’, although CCTV footage showed this not to be the case.

“The Tribunal found that the Trust’s initial investigation into the employee’s suspension was ‘fundamentally flawed’ and served only to support the organisation’s bias towards the employee. The substantial damages awarded by the Tribunal reflected the significant loss of the claimant’s pension rights following his dismissal and serve as a timely reminder to employers with final salary schemes in place that losses at tribunal can result in huge compensation awards.

The judgment also serves as a reminder that every advisory or decision-making role in disciplinary procedures carries the responsibility of reviewing all the evidence, or lack of evidence, and questioning any omissions or potential bias to avoid fundamentally affecting the outcome.

  • Posted on December 13th, 2018

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