by Emma | Dec 1, 2022 | Newsletter
December 2022
Exclusivity clauses in employment contracts restrict workers from taking on additional work with other employers. In May 2015, their use was banned in zero hours contracts in Great Britain, which are contracts under which work is not guaranteed to the worker.
This ban on exclusivity clauses will be extended to low-income workers effective in England, Scotland and Wales from 5 December 2022. From this date, contractual exclusivity clauses are unenforceable against workers whose guaranteed net average weekly wages do not exceed the Lower Earnings Limit (which is currently £123 a week).
To calculate this net average, where the contract of employment or other worker’s contract is permanent, the average weekly wages are calculated by dividing by 52 the total remuneration to which the worker is entitled under that contract in respect of a period of 52 weeks. For temporary contracts, the average weekly wages under the regulations are calculated by dividing the total remuneration to which the worker is entitled under their contract by the number of weeks during which their contract is expected to continue.
In the same way, as for the earlier regulations in respect of zero hours contracts, exclusivity terms are defined in the new regulations as any contractual term which prohibits a worker from doing work or performing services under another contract or arrangement, or which prohibits a worker from doing so without their employer’s consent or consent of the business.
This means that any contractual clause that prohibits these workers taking on additional employment will be void and unenforceable.
To avoid a breach of the new regulations and the risk of tribunal claims, employers in Great Britain should ensure that they do not take steps to enforce any exclusivity clauses in existing contracts for low-income workers to whom the regulations apply, such as dismissal or taking disciplinary action for taking on additional employment without authorization, from 5 December 2022 onwards. This is the case regardless of how long they have been employed or engaged by the business.
New contracts issued from 5 December 2022 onwards should avoid the use of exclusivity clauses for low-income workers to which these new regulations apply, as well as zero hour and causal hour workers, as these clauses are void and unenforceable.
For further information please contact me.
by Emma | Nov 11, 2022 | Newsletter
Where an employee has been dismissed for asserting a statutory right, which includes the statutory right to take a reasonable amount of unpaid time off for dependent leave, they do not require the usual 2 years’ minimum employment service to bring a claim for unfair dismissal. A dismissal in that circumstance will be automatically unfair.
The right to take a reasonable amount of time off to deal with an emergency involving a dependent is one that should not be overlooked by employers dealing with absence requests. This right is widely defined in the legislation, as a dependent could mean a spouse, partner, child, grandchild, parent or someone who depends on the employee for care who is not a relative.
The employee in this case had been employed as a machine operator. His partner was pregnant and had some health issues. Following her routine antenatal appointment, she was told to attend an emergency hospital appointment.
This presented a childcare problem for them in terms of taking their child to school and the employee wanted to be able to support his partner at the appointment. He submitted a request to take the day off as holiday, but this request was refused.
The employee sent in further requests for time off, explaining it was because of childcare issues and asked if he could be allowed unpaid time off if not holiday. No response was received and on the morning of the appointment he telephoned his employer to confirm that he would not be able to attend work that day.
When he returned to work the following day, he was called to a disciplinary hearing due to unauthorised absence and insubordination. It was decided that no action would be taken. However, five months later he was called to another disciplinary meeting and dismissed. His manager took the decision to dismiss the employee on the spot as the employee did not yet have 2 years’ service. The reasons cited for his dismissal in his dismissal letter included smoking, returning late from breaks, using a mobile phone and taking drinks onto the factory floor and not following procedures or providing sufficient notice before taking time off. In other words, the statutory right to time off for dependents was part of the reason for the dismissal.
The employee, who had less than two years’ service at the time of his dismissal, claimed that the dismissal was automatically unfair. The employer in this case was a small business. It had never had anyone take dependents’ leave before the employee’s request.
The employment tribunal decided that the employee had been unfairly dismissed on the grounds that the primary reason for his dismissal reason was that he had taken time off work to care for a dependent.
The tribunal found that the employee had complied with the statutory requirements in respect of exercising his right to take time off for this reason in that he had made the request to take leave as soon as possible and informed the employer of where he was when absent.
While the initial disciplinary hearing had not resulted in action being taken, the incident had not been forgotten by his manager and it was expressly referred to in the letter of dismissal.
When giving evidence at the tribunal hearing the employee had admitted smoking at the factory gates from time to time and admitted using his phone on the factory floor, as well as the fact that there was friction between him and his line manager. However, he was adamant that he had not been spoken to in a disciplinary sense about those matters and had not had disciplinary sanctions imposed on him until his letter of dismissal.
Based on the evidence, the tribunal concluded that the other reasons put forward for dismissal had lacked credibility given that other employees had not been dismissed for smoking or mobile phone use on the premises. The employee was awarded just over £8,000 by the tribunal as compensation for the unfair dismissal. This award included a 20% uplift to the award for the employer’s failure to follow a fair procedure by failing to give notice of the dismissal meeting and the failure to hold a fair appeal hearing.
For further information on dealing with domestic/ dependent leave please contact me on 07929506143.
by Emma | Oct 18, 2022 | Newsletter
World Menopause Day – 18th Oct |
| It’s World Menopause Day. The day is to raise awareness, break the stigma and highlight the support options available for improving health and wellbeing. We have sent through a few cases over the last few weeks to highlight, that tribunal cases are becoming more frequent in relation to menopause. What can you do as an employer? Start the conversation
Just like Mental Health, you need to start the conversation and allow employees to come forward. You need to have an open culture where employee’s feel comfortable talking about their symptoms. Ideas: Implement a Menopause Policy Link your Harassment/Bullying Policy to your Menopause Policy Provide risk assessments where required Put up menopause posters in toilets, notice boards, intranet’s etc Send information/ make information available to employees sign posting menopause to advice and help Train someone in-house to be a Menopause ambassador. Employees can speak to this ambassador in confidence Be open to making reasonable adjustments with employees experiencing menopause symptoms Provide an employee assistance programme, where employees can access help If you would like further information or you need assistance putting together any of the idea’s above, please let me know. |
by Emma | Oct 10, 2022 | Newsletter
World Menopause day is 18th October and we want to join the conversation.
The day is to raise awareness, break the stigma and highlight the support options available for improving health and wellbeing.
Today we have highlighted another tribunal case which is centred around the menopause.
Case 2
The Claimant was dismissed for poor performance. She informed her employer that she was going through the menopause which was affecting her concentration levels. She even provided her manager with a letter from her GP. Her Manager disregarded her medical evidence and made assumptions based on his wife’s own experience of the menopause. She claimed unfair dismissal and sex discrimination and won on both counts.
The tribunal decision stated, ‘It is self evident that all women will experience their menopause in different ways and with differing symptoms and degrees of symptoms’. The manager should not have based his decision o his own experience with his wife.
If you would like further information on dealing with employees with menopause symptoms or reasonable adjustments please contact me.
by Emma | Oct 3, 2022 | Newsletter
World Menopause day is 18th October and we want to join the conversation.
The day is to raise awareness, break the stigma and highlight the support options available for improving health and wellbeing.
I will be highlighting some cases in October, which have made it to tribunal which are centred around the menopause.
Case 1
The claimant suffered from insomnia, fatigue, low mood, irritability, anxiety, heart palpitations, memory loss, confusion, concentration problems, low self-esteem, headaches / migraines, night sweats, sleep disturbance and urinary problems. She forgot to attend events and meetings and spent long periods in bed due to exhaustion. She stated that the symptoms significantly impacted the quality of her life. She was prescribed HRT and was under the care of a menopause clinic. She resigned and claimed sex discrimination and disability discrimination due to the companies heavy handed absence management system.
This case demonstrates how the effects of menopause could amount to a disability under the Equality Act 2010. Here the claimant was a social worker with severe symptoms including insomnia, fatigue and palpitations, which she had experienced for over 2 years. She won her case on both grounds.
by Emma | Sep 16, 2022 | Newsletter
Employee awarded £22k |
| Employers can rely on health and safety grounds for dismissing an employee, provided that they can prove this is the genuine reason for the dismissal. The employee in this case was employed as a quality inspector in a chicken processing factory and worked in the food production area of the factory. He was a Russian Orthodox Christian and wore a crucifix on a chain close to his chest to signify his commitment to his religious beliefs. His induction training covered the company’s ‘foreign body control policy’, which stated that, other than a single, plain ring, jewellery must not be worn, with the exception of religious jewellery, which would be subject to a risk assessment. His line manager noticed his necklace and asked him to remove it because it breached company policy, and he did so. She did not conduct a risk assessment, as she believed the matter to be closed. The employee did not request an assessment because he believed his line manager understood the necklace was worn as part of his faith. Around this time, the employee had a meeting with a manager to discuss a complaint he had made about bullying by colleagues. The manager noticed he was wearing the necklace and asked if it had been risk assessed. On learning there had not been a risk assessment, she said she would ask his line manager to carry one out. His line manager concluded that there was a risk of contamination because the chain was made of links; she also considered the risks of entanglement, entrapment and tearing. The employee refused to remove the chain and was consequently dismissed on misconduct grounds for refusing to obey a management instruction. He was told that his probationary period and thus his employment would be ended immediately. The employee brought an employment claim on the basis that he had been subjected to indirect religious discrimination due to his dismissal for wearing his religious jewellery. The employment tribunal noted that at the time of the risk assessment, the employee’s line manager did not discuss the chain in any detail with the employee nor inspect whether the chain was in good condition. There was no conversation with the employee as to whether any steps could be taken to mitigate the risk, such as ensuring that it was tucked into his clothing at all times, or that his Personal Protective Equipment could be fastened up to ensure it was not exposed. The tribunal heard that his line manager had not conducted such a risk assessment before, that she did not complete all the sections of it and did not consider mitigation such as tucking the necklace securely beneath clothes or under the employee’s Personal Protective Equipment. The employee’s evidence on this, which the employment tribunal accepted, was that he was not consulted on the risk assessment and that the risk assessment was cursory. Accordingly, the employer was unable to show that the health and safety rule which required the necklace to be removed was justified and proportionate based on the evidence. The employment tribunal concluded that the employer had failed to produce evidence which indicated that the health and safety of staff and customers had outweighed the discriminatory effect on the employee of being prohibited from wearing his necklace. This was because the risk assessment had been inadequate. The employee in this case was awarded just over £22,000 for indirect discrimination. Health and safety measures in the workplace must be based on a suitable and sufficient risk assessment, rather than a cursory and insufficient one and the management response should be proportionate to the identified health and safety risks. |
