£300,000 Christmas Party compensation case dismissed

A charity worker has lost a £300,000 compensation claim she filed for back injuries she sustained after she was lifted up and subsequently dropped at a workplace Christmas party.

The High Court ruled a payout in such circumstances could be seen as “health and safety gone mad” and could discourage employers from planning events for their staff. The employee in this case sued her employer – a charity –   after suffering “devastating” back injuries she claims were sustained after she was “manhandled” at the Christmas party.  She claimed that her employer was responsible for the behaviour of the employer who lifted her on the dance floor, who was intoxicated at the party. The employee’s lawyer said that the behaviour of the colleague “gave rise to a duty on the part of the employer to intervene”.

The tribunal heard that the employee was on the dance floor when her colleague attempted to lift her off the ground. In doing so, he lost his balance and dropped her, resulting in her sustaining a serious back injury.  The employee was unable to return to work because of her injury in the six months following the incident.

The court ruled that she had no grounds to claim against her employer on the basis of negligence or vicarious liability because the accident was not reasonably foreseeable.

  • Posted on April 23rd, 2019

Non-disclosure agreements make the headlines in 2019

Non-disclosure agreements (NDAs), when used correctly can protect commercially sensitive or confidential information. But in the last couple of years their use has been criticised and condemned, not least for their use to cover up sexual harassment.

It was widely reported that Harvey Weinstein deployed NDAs to keep alleged victims quiet. The issue of NDAs made the headlines again last October when Sir Philip Green was named as the leading businessman accused by a newspaper of sexual and racial harassment. The Court of Appeal had issued an injunction preventing publication of Sir Phillip’s name in circumstances where the five staff members involved had signed NDAs contained in settlement agreements.

The UK Government has now published a consultation on measures to prevent misuse of confidentiality clauses  in situations of workplace harassment or discrimination.  The purpose of the consultation is to examine:

1. Whether there should be limitations on confidentiality clauses in the employment context to make it easier for workersto understand when they are permitted in law to make a disclosure to the police or other people despite the existence of a confidentiality clause;
2. How to ensure workers are clear about the rights they maintain when they sign a confidentiality clause or start work for a new employer; and
3. How to enforce any new regulations on confidentiality clauses

The proposals include a requirement for the written statement of particulars of employment to include a clear description of the limits of any confidentiality clause it may contain; and for a settlement agreement to be valid, the independent advice a worker receives, would have to cover the nature and limitations of any confidentiality clause and the disclosures a worker is still able to make.

  • Posted on April 18th, 2019

A travel agency manager has been awarded over £84,000 after an employment tribunal found he had been subject to race discrimination and victimisation by his former employer.

The employee had been called a “black monkey” in the officein front of the general manager’s son and an accounts assistant.

The employee formally complained in an email but was accused of having fabricated the allegation, “knowing that his employment was precarious because of his poor performance”. However, the tribunal found this “inherently unlikely” as warnings were never documented or referred to.The tribunal also questioned the seriousness of the performance issues as there was no evidence that these had been discussed with any employee or manager during the employment period.

The tribunal said that the employer’s response to the email was “unduly hostile, harsh and bound to antagonise the employee”, and said no reasonable manager would have responded in this way.

The employee took time off work due to stress and anxiety and on his return was invited to a meeting, during which he received a letter of dismissal stating that he had not grown into the role, the job was not right for him and he was being terminated with immediate effect.

The employee brought claims of race discrimination and automatic unfair dismissal to the employment tribunal which unanimously ruled that he had suffered race discrimination and victimisation by his ex-employer awarding him £84,358in compensation for injury to feelings, personal injury, loss of wages, expenses and aggravated damages. 

The case confirms that employees who raise complaints relating to discrimination on the grounds of their race or any other protected characteristic should not be subjected to a detriment or dismissed because they have raised the complaint.

  • Posted on April 17th, 2019

Do you support staff with cancer?

Many cancer patients are either not receiving the support they need to return to work, feel forced to hide their symptoms or are being pressured into returning to work before they are ready, according to Macmillan Cancer Support in a recent survey of workers with cancer diagnoses.  Apparently, one in 10 staff felt pressured into returning to work before they were ready.

Of the 1,500 workers surveyed by the charity, more than a quarter received no support to help them back to work after their diagnosis, and of those who did return to work, 23% did not feel well enough to be there. 

The survey found that the vast majority felt it was important to continue working after their diagnosis, but one in 10 reported feeling the need to cover up their symptoms, like fatigue and sickness, at work.

Employers have a vital role to play in helping employees remain in or return to work after their diagnosis and need to understand their legal obligations to employees with cancer under the Equality Act, that they consider what reasonable adjustments their employees may need to stay in work, and that they have appropriate policies and processes in place.

Macmillan estimates someone in the UK is diagnosed with cancer every two minutes, with around 2.5 million people in the UK currently experiencing the disease. Many will have to hold down a job while they undergo treatment. 

  • Posted on April 16th, 2019

Increase in the number of Data Subject Access Requests in the last year.

The General Data Protection Regulation (GDPR) has been in force for almost a year, and what has become apparent is that it is an ongoing obligation requiring regular compliance. Part of that activity has involved managing requests for access topersonal data using data subject access requests (DSAR). Subject access requests regularly arise in the context of a dispute with a disgruntled employee or ex-employee, who will often be only too keen to report the matter to the Information Commissioner’s Office (ICO) if they feel their request has been mishandled.

When an organisation receives a DSAR from a member of staff, ex-employee, or unsuccessful job applicant, it must respond within a month and cannot usually charge a fee for doing so. There are a number of exemptions, but the presumption is generally that the individual should be provided with the personal data that he or she has requested.

Personal data includes statements of opinion or of intent about the data subject, which in the context of an employment relationship, could include unflattering comments made, for example, in interview notes, emails and minutes of meetings. It is a criminal offence to deliberately destroy personal data to thwart a DSAR.

The widespread publicity surrounding the GDPR means that people are more aware of their rights, are more likely to exercise them, and they are more likely to complain to the ICO if their request is not properly dealt with.

Businesses, public authorities and charities must have robust, effective policies and processes in place for dealing with data subjects’ requests and they should ensure that their staff are trained to recognise and manage requests.

  • Posted on April 15th, 2019

As Easter approaches are your staff looking for “statutory holidays” or double time?

There is no statutory right to time off on a bank holiday. All workers must receive 5.6 weeks’ paid annual leave each year, but it is up to an employer for when they are allowed to take those days off. It is important that employers are fair to staff when holidays are requested as there is a risk that some workers’ requests for annual leave may be treated more favourably than others.

Employers may reward staff for working on bank holidays by paying them extra, but there is no rule that they should. Many businesses offer extra pay for bank holidays as an incentive to encourage staff to work those days.

If an organisation closes over Easter, employers can force workers to use annual leave while the organisation is shut. However, to do this, staff must be given twice as much notice as the time period that they are asked to take off work.

So, to close for one week of holiday, employers would need to give two weeks’ notice.

Contracts and policies should cover:

1. Holiday entitlement
2. extra pay for working certain days
3. annual leave requests and notice required for requesting
4. days staff need to reserve holiday for (if applicable)
5. restrictions on annual leave and policies on carrying over leave
  • Posted on April 8th, 2019

Fines for underpayment of apprenticeship levy have doubled in the last year

The number of organisations being investigated for underpayment of the apprenticeship levy has more than doubled in a year, according to new research which demonstrates complexities in administering the scheme.

Her Majesty’s Revenue and Customs (HMRC) has launched 84 separate investigations in 2018/19, up from 33 the year before. HMRC said businesses collectively underpaid £13.6m in levy funds in 2017/18. Under the apprenticeship levy, businesses with an annual payroll of more than £3m must pay 0.5 per cent of their total wage bill – minus a £15,000 allowance – into a pool which they can then draw on to fund approved training schemes.

A growing number of employers found the levy complex and difficult to comply with, which led them to inadvertently underpay and left them exposed to potential fines. The high number of investigations HMRC is launching into underpayment is a symptom of the wider problems that are hampering the scheme’s effectiveness.

Online calculator tools are available for employers to identify how much levy they needed to pay, but like other HMRC calculators, it has been criticised as being overly complex and clunky.

Many businesses still see the apprenticeship levy as an employment tax and the research found that one in seven firms simply wrote the levy off as a tax, due to their struggles putting the funds into action.

  • Posted on April 8th, 2019

There has been a rapid growth of equal pay litigation, which has seen claims against all the UK’s major supermarkets.

Equal pay claims are procedurally and legally complex, making them time consuming and expensive for employers to defend. The consequences of losing are also significant: an employer can be ordered to pay the differential in pay for up to six years, plus interest and/or damages. With the number of claimants in recent equal pay claims totalling up to 30,000, this is no small figure.

But why are there so many cases? The difficulty comes when considering what counts as ‘equal work’ for which men and women should be paid equally. 

Taking the recent Asda Court of Appeal case as an example, the question for the court was whether employees working in retail stores (who were mainly women) were entitled to compare themselves to employees working in distribution centres (who were mainly men), so they could bring equal pay claims. 

On the face of it, the roles of retail and distribution are different, have different skills and working environments and there are a number of obvious differences between them. However, that is no barrier to the court finding they are comparable.

So how does an employer know if two roles might be capable of comparison?  There are actions employers can take.

Undertake an equal pay audit and assess your organisation for trouble spots and recommend remedial action. Reviewing the workforce as a whole and consider where the charge of unequal pay for equal work might be a risk.

  • Posted on April 8th, 2019

Are your employees clear about the internet usage policy at work? Recent unfair dismissal case awards £16,000

Work can be busy and it is inevitable that your employees will use some of their spare time during work to browse online but no one expects to be dismissed for looking for a birthday present or outfit for a wedding – or do they?

A woman who worked at a Scottish law firm was removed from her role after concerns were raised regarding her internet browsing habits, despite not being told that she was not permitted to use the internet during her breaks.

The employee has since been awarded £16,000 after being unfairly dismissed. She was confronted by the owner’s wife who managed the office and the exchange left the employee ‘flustered’ and ‘close to tears’. She then took time off work due to stress and anxiety and responded to a disciplinary invitation with a medical certificate.

Despite the employee providing a return to work date, her employer set a date for a disciplinary meeting during the sick leave citing allegations of inappropriate usage of the internet, quality of work, timekeeping and productivity.

The employee responded, claiming that she felt harassed and that it was likely to prolong her illness and prevent her from returning to work. Four days later, she received another letter informing her that she was dismissed.

Due to the employer’s unfair dismissal, an employment tribunal found that McMahon was in fact entitled to a basic award and further compensation due to her employer’s actions.

Most employees do feel comfortable within their office to carry some light online shopping during their working dayand it is important to lay out the rules relating to this in the employee handbook and cover it during induction so that employees are clear from the outset around what is appropriate and inappropriate use – and whether it is permitted to access the internet during working breaks.

  • Posted on April 8th, 2019

IR35 rules change in the private sector

On 5th March the government published a consultation on its plan to extend the public authority IR35 rules to the private sector, excluding small businesses (less than 50 employees, less than £10m turnover). This has implications for hirers and everyone in the contractor supply chain.

Responsibility for determining the tax status of contractors is to transfer from the contractor to the hirer. Tax liability passes to the ‘fee payer’, which is the business that contracts with the contractor. All income (excluding vat and expenses) paid to the contractor business must be treated as income of the individual. This means that income tax and employee and employer NICs calculated on the full contractor rate must be accounted for by the fee payer. The current 5% expenses allowance for contractors is also to be scrapped.

These rules mean that hirers should carry out an IR35 status assessment before engaging any contractor. The assessment is complex and legal. Whilst HMRC provides an online tool (CEST) to assist, it is notoriously controversial as it is most likely to identify the contractor as an employee!

The implementation will affect businesses that use contractors, and higher costs are inevitable.

  • Posted on April 8th, 2019

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