by Emma | May 5, 2017 | Newsletter
Work related stress Campaign
One of the Health and Safety Executive campaigns for 2017 is for work related stress
While it is important that businesses have a stress risk assessment in place one of the key areas is the management of employees who are suffering work related stress and/or are off work sick. Businesses must have a policy in place and a procedure if an employee either raises an issue with management or if they produce a Fit note for work related stress. Issues need to be dealt with quickly as it may have a further burden on the business.
ECHR can offer work related stress management workshops for management, policies and procedures, stress risk assessments and stress audits.
Holiday commission payment case
British Gas has lost its final right to appeal a long running holiday commission payment case against a former engineer. Mr Lock launched a legal case against British Gas when they failed to include commission in holiday pay, resulting in a £1,500 underpayment. However, Brexit may prevent the ruling from ever becoming law – watch this space!
New discount rate for personal injury claims
With effect from 20th March, a reduction in the discount rate (which is applied to personal injury damages to reflect interest from investment) will decrease from 2.5% to minus 0.75%. When an employment tribunal gives an award for future loss it generally follows the personal injury discount rate. The reduction will lead to increased awards and hence an increase in employer’s insurance premiums is likely.
£2 compensation award!
An investment management business which claimed £15m in damages for stolen data from departing staff has ended up with just £2 compensation after a High Court judge ruled that no injury had been sustained.
The company had sued James Seddon & Luke Bridgeman after files were copied prior to their departure from the business. Marathon’s case was not that the files were used or any loss was suffered, but that the defendants should pay the value of what they had taken.
This judgment serves as a warning to anyone attempting to assert significant losses for the removal of company documents. Marathon’s £15m claim and £2 payout show how widely perception of value can differ from the actual amount that can be reasonably claimed in damages, and how hard it can be to establish a realistic usage value for commercial documents.
Woof Woof!
The craft beer company BrewDog has just introduced Puppy Parental Leave – meaning that staff members don’t have to take holiday days to care for their dogs. Once the leave period has finished, staff are then welcome to bring their pets to work. BrewDog’s Aberdeenshire HQ currently boasts around 50 regular office dogs. This company offers paid puppy leave for new dog owners.
Debenhams miscalculation – even larger companies can get it wrong!
Debenhams miscalculated the number of weeks’ pay per year for around 12,000 employees meaning their pay was under the minimum wage, meaning they were fined £63,000.
The employees were underpaid by an average of £10 each in 2015, forcing it to pay back almost £135,000.
If you have employees on salaries, make sure that they factor down to a minimum of the minimum wage hourly rate using 52.17 weeks in a year (not 52).
Also, be mindful that any deductions made from pay don’t put you in breach of the minimum wage regulations. For example, asking staff to pay for their uniforms, removing accommodation deposits from salaries (resulting in their hourly rate being below the minimum wage) are in breach of the regulations.
Religious Symbols
The European Court of Justice gave rulings on two cases relating to religious symbols in the workplace.
Achbita v G4S, says that banning all religious, political or philosophical symbols in the workplace isn’t direct discrimination – though to ban symbols from just one religion would be. This ruling also said that banning religious symbols would be indirect discrimination if it had a disproportionate effect on a particular religion or belief.
Bougnaoui v Micropole, adds that to ban religious symbols in response to a customer’s wish not to be served by someone wearing a headscarf would be direct discrimination, and would not be justifiable.
Indirect discrimination will not be unlawful if it can be justified in respect of a legitimate aim. Guidance suggests that an employer’s desire to project an image of neutrality toward its customers is a legitimate aim. However, a ban on religious symbols and if its justified, will always depend on all the circumstances. The ECJ suggested that banning religious symbols was most readily justifiable in customer-facing roles and that the employer should have considered offering a post not involving contact with customers.
Unfair dismissal – new evidence given at appeal!
In O’Brien v Bolton St Catherine’s Academy, the claimant had been absent from work for more than a year at the time of her dismissal and there was no certainty as to when she would return. At the initial capability hearing, there was no clear medical evidence of the claimant’s prognosis or any indication of when she might be able to return to work. The claimant was dismissed. At her appeal hearing the claimant produced evidence that she was fit to return to work imminently but her appeal against dismissal was rejected. She brought claims for direct disability discrimination, unfair dismissal, discrimination arising from disability and automatically unfair dismissal.
The Court of Appeal upheld the claimant’s claim for unfair dismissal. Although the claimant had been absent for an extended period of time and the nature of the evidence about when she might be fit to return was initially unsatisfactory, the decision to dismiss did not take account of new evidence that she would be fit to return. In the Court’s view it was unreasonable of the employee to have disregarded this evidence without at least a further assessment by its own occupational health advisers.
Where there is a change in circumstances between the dismissal hearing and the appeal hearing the employer should take this into account before rubber-stamping the initial decision. Any evidence that an employee is fit for work should be properly considered. Finally, where an employee produces updated medical evidence at the appeal hearing, the decision to dismiss must be fair on the basis of the information available to the employer at the time of the appeal.
Case struck out as claimant discusses her case with a journalist!
In Chidzoy v British Broadcasting Corporation, the claimant was cross-examined by counsel for the BBC for two days during the course of her tribunal hearing. She then returned to the witness stand for a third day of cross-examination. Each time there was a comfort break from the tribunal the claimant was reminded that she remained under oath and should not be discussing her evidence or any aspect of the case with any person during the adjournment. During what was probably the last adjournment the claimant was seen in discussion with a third party (later identified as a journalist). The BBC applied to strike out the claim on the basis that, despite clear warnings that she was under oath, the claimant had discussed her evidence with a journalist.
The tribunal struck out the claimant’s claim on the basis that her conduct had been unreasonable and had showed a disregard for the tribunal’s instructions. The tribunal also considered that a fair trial was no longer possible and that ordering the hearing to start again before a different tribunal would not be proportionate.
by Emma | Mar 6, 2017 | Newsletter, Uncategorized
Employment Law Update – March
Min Wage April 2017
| Year | 25 and over | 21 to 24 | 18 to 20 | Under 18 | Apprentice |
| October 2016 (current rate) | £7.20 | £6.95 | £5.55 | £4.00 | £3.40 |
| April 2017 | £7.50 | £7.05 | £5.60 | £4.05 | £3.50 |
Unfair dismissal claims win!
Case 1:
An employee won in an unfair dismissal claim, due to the failure of the company to follow procedures. Flaws in their process included (but were, by no means limited to) using the same person to carry out the investigation and to hear the disciplinary hearing; using the person specifically referred to in the defamatory Facebook comments to hear the appeal and not warning the employee prior to the disciplinary hearing, that a possible outcome of the hearing could be summary dismissal, i.e. dismissal without notice.
So while the employer was within the law to dismiss the employee for posting defamatory comments on Facebook, the employer was still in the firing line.
Case 2:
A mechanic attacked another employee by putting his hands over his neck for a few seconds. The mechanic was dismissed for gross misconduct, the company stating that they had a zero tolerance to physical violence.
Because the company failed to take into consideration the employees long service and that there was no evidence that the company had a zero tolerance policy on physical violence.
These cases show that all circumstances need to be taken into account before making a decision to dismiss. It is also a reminder than an employer should be consistent in its treatment of an incident.
Please seek advice from ECHR on all disciplinary related issues prior to carrying out your process.
Whistleblowing
Whistleblowing laws have meant that a disclosure is not protected unless an employee reasonably believes that it is being made “in the public interest”. The laws have existed since June 2013, and have summoned a particular interest surrounding what exactly qualifies as being “in the public interest”. The case of Chesterton Global v Nurmohamed is listed to be heard in The Court of Appeal in June 2017.
The case will help to define what is considered to be ‘in the public interest’, which could influence what should or shouldn’t be reported by employees.
Apprenticeship Levy
An apprenticeship levy is coming into force for any employers with an annual pay bill for the previous tax year in excess of £3 million on 6 April 2017. All employers in this category, whether or not they actually use apprentices, will have to contribute 0.5% if their annual pay bill, calculated on the basis of all payments to employees (including wages, bonuses and commission) that are subject to employer class 1 NICs. Levied employers with apprenticeships will receive an annual allowance of £15,000 to offset against their apprentice costs.
Further information on the levy will be in our next newsletter.
Salary Sacrifice schemes significantly restricted
Employers may need to reconsider their benefit offerings as tax savings through many salary-sacrifice schemes will be abolished from 6 April 2017.
Schemes related to pension savings (including pensions advice), childcare, cycle-to-work and ultra-low emission cars will not be affected.
Schemes in place prior to April 2017 will be protected until April 2018, while arrangements related to cars, accommodation and school fees will be protected until April 2021.
Changes to Immigration
Employers sponsoring foreign workers with a tier 2 visa will be required to pay an immigration skills charge of £1,000 per worker (£364 for small employers and charities) beginning in April 2017. The immigration skills charge will be in addition to current fees for visa applications.
In April 2017, the minimum salary threshold for “experienced workers” applying for a tier 2 visa will also increase to £30,000. New entrants to the job market, and some health and education staff will be exempted from the salary threshold until 2019.
Tribunal Changes
The government has published its response to the consultation on reforming the employment tribunal system. The changes proposed included:
– Digitising the whole claims process;
– Delegating a broad range of routine tasks from judges to caseworkers; and
– Tailoring composition of tribunal panels to the needs of the case.
Responsibility for employment tribunal and EAT rules of procedure will be transferred to the independent Tribunal Procedure Committee, which will be expanded to include an employment judge and a legal practitioner with specific experience of the employment tribunal system.
All tribunal caseworkers will be legally “trained or qualified” and all decisions made under delegated authority will be taken under judicial supervision for quality control.
Plus the new maximum compensation limit as of 6th April 2017 for unfair dismissal will be £80,541.
Mobility Clause a waste of time?
You have decided to close one of your offices in which a number of employees work. You have a mobility clause in your employment contracts.
Now it may not be so simple – If they refuse to move, you may have to acknowledge they’re redundant and pay redundancy accordingly. Otherwise, you may find yourself at the wrong end of an unfair dismissal claim.
This is what happened in the recent case of Kellogg Brown & Root (UK) Ltd v Fitton. They dismissed 2 employees because they refused to relocate and ending up losing their case at tribunal!
