by Emma | Jun 1, 2017 | Newsletter
A HEALTHY EMPLOYEE IS A MORE PRODUCTIVE EMPLOYEE!
Almost two-thirds of our waking lives are spent at work. This makes the workplace one of the best arenas to influence positive health and wellbeing.
Why, then, does the cost of employee ill health continue to spiral out of control? Every year, UK businesses lose 131 million days to sickness absence.
In today’s business arena, more than 99% of private companies can now be defined as small and medium-sized enterprises (SMEs). However, It is one of the worst performing in terms of employee health outcomes, with one-third of SME employees experiencing a mental health problem during their working life
The day-to-day pressures of running a small business often mean that a proactive and strategic approach is rarely seen as a priority. The reality is that for many SMEs, the introduction of a health and wellbeing programme too often comes down to issues of size, culture, budget and resource.
What are the benefits?
Reduced sickness absence
Increased staff retention
Enhanced employee engagement
Not only does this save you money, it makes you money – with researching showing that safe and healthy workplaces generate 4% higher profit margins and 20% more revenue per employee.
You also don’t need a big budget to make a big difference. There are a wide range of options that you, as an employer, can offer at little-to-no cost.
One size doesn’t fit all – please give me a call for some advice on putting together an employee wellbeing programme.
I am currently working with “At Home Fitness” who can offer your employees personal fitness training. If you or your employees are interested in speaking to Mani Sidhu please contact him on: 01902 336381 or 07427688459.
by Emma | May 28, 2017 | Newsletter
HMRC collected £102m in tax as a result of investigations into false self employment in 2015/2016.
Over the past few years, HMRC has focussed a significant number of its investigations on firms where disguised employment is most common.
Disguised employment occurs when an employer classes its workers as self employed in order to avoid paying tax and NI, despite the fact that workers are effectively treated as employees.
If in doubt about an employment status, please contact us now and avoid a big HMRC bill and/or tribunal.
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!
by Emma | Jan 4, 2017 | Newsletter
HAPPY NEW YEAR!
Flexible working after Maternity Leave
In Whiteman v CPS Interiors Ltd and others, the employment tribunal held that an employer properly handled a new mother’s rejected flexible working request to work from home.
Ms Whiteman, a designer for a company that refurbishes commercial premises, requested to reduce her hours on her return from maternity leave after having twins. Her employer accepted her request. However, the employer turned down Ms Whiteman’s request to work from home (apart from occasional office visits) and to do most of her work in the evenings (after 6pm). The employer considered that, although working at home primarily in the evenings might have been possible, it could not accommodate the homeworking request because:
- its collaborative way of working often involves designers together in a room looking at technical designs; and
- designs often have to be changed at short notice, something that would be difficult if the employee worked only at home in the evenings.
Ms Whiteman resigned, citing the handling of her flexible working request as the reason. She brought tribunal claims for breaches of the flexible working legislation, constructive dismissal and indirect sex discrimination. The employment tribunal rejected all her claims, stressing that there is no right to work flexibly.
In Smith v Gleacher Shacklock LLP, the employment tribunal held that it was not indirect sex discrimination for an investment banking firm to require a mother to work full time.
Ms Smith, a single parent working as an executive secretary for a small investment bank, was returning from maternity leave. She asked to work three days per week in the office, followed by homeworking on Thursdays and not working on Fridays.
Following a meeting, her employer turned down her flexible working request because of the:
- impact on the firm’s ability to look after clients,
- unpredictability of her role
- tight timescales for various tasks
- disproportionate pressure on the small team.
Recent examples were given of difficulties that would have occurred had Ms Smith not been in the office. The employer made various compromise suggestions, including that she could leave early for nursery runs and initially return on a part-time basis.
An agreement could not be reached and Ms Smith brought tribunal claims for indirect sex discrimination and breaches of flexible working legislation. She later resigned. The employment tribunal rejected Ms Smith’s claims. The tribunal accepted that requiring full-time working places women at a particular disadvantage compared with men because women are more likely to be sole parents than men.
The tribunal concluded that, in any event, the employer’s stance was justified. The employer’s legitimate aim is to “ensure that its partners and clients receive high-quality, efficient secretarial support throughout the week, without problematic handovers”.
If you require any assistance with flexible working requests, or requests after returning from maternity please contact me.
Equal pay – ASDA
An employment tribunal has ruled that the women, who mainly work at check-outs or stacking shelves, can compare themselves to higher paid men who work at warehouses.
This case highlights how comparator jobs aren’t obvious.
Please contact me if you have any equal pay issues or queries.
£180,000 compensation won by School Teacher
The Employment Appeal Tribunal ruled his employer discriminated against him on the grounds of his disability during his dismissal for a disciplinary offence. Philip Grosset was sacked for gross misconduct after showing an 18-certificate horror film Halloween to 16-year-old students.
Grosset described his actions as a “poor choice” made at a time of “extreme stress and ill-health”, which did not deserve more than a verbal warning at most. Instead, he was sacked – and the tribunal accepted his argument that the school’s failure to take account of his disability before and during the process amounted to discrimination.
This case shows how giving out ‘unreasonable’ sanctions following a disciplinary process can backfire.
Please contact me prior to a disciplinary hearing for guidance.
Gender Pay reporting regulations finalised
This will affect businesses with over 250 employees. For further information please contact me.
Any questions regarding January’s update, please contact us on 07929 506 143 or echrltd@aol.co.uk
by Emma | Oct 31, 2016 | Newsletter
Shared Parental Leave
In the first employment tribunal case to address a discrimination complaint over shared parental leave (SPL), a father has been awarded almost £30,000 after his employer refused to pay his shared parental leave at the same rate as his wife who was employed by the same company.
In the case, Snell v Network Rail, both the claimant and his wife were employed by Network Rail. The company’s policy provided for mothers to be paid at an enhanced rate during SPL but only the statutory rate for partners.
The tribunal agreed that a SPL policy that disadvantages partners (who are more likely than not to be men) by paying them at a less favourable rate than the mother of a child is indirectly discriminatory.
Employers need to be careful to ensure that pay is consistent across both men and women who take shared parental leave.
Please contact us if you have any queries or concerns regarding your Shared Parental Leave Policy.
Reasonable Adjustments
In the case of G4S Cash Solutions (UK) Ltd v Powell, after the Claimant became disabled through a back injury the Respondent gave him work in a new role at his existing rate of pay and led him to believe that the role was long-term. The following year, however, it said that it was only prepared to employ him in this role at a reduced rate of pay; and when the Claimant refused to accept these terms he was dismissed.
The view was taken that there was no reason in principle why the duty to make reasonable adjustments should exclude any requirement to protect an employee’s pay and that pay protection is no more than another form of cost for an employer making a reasonable adjustment.
Please contact us if you need any advice on disability or reasonable adjustments.
Commission payments should be included in holiday pay confirms the Court of Appeal
Employers who have not been including commission payments in holiday pay calculations need to be aware that they now run the very real risk of having a succession of unlawful deductions from wages claims brought against them.
Please contact us if you have any queries on your holiday calculations.
Caste Discrimination
The government has announced that it will be proceeding with a full consultation on caste discrimination. The consultation will seek views on whether additional measures are needed to ensure victims of caste discrimination have appropriate legal protection and effective remedies under the Equality Act 2010.
Music can help productivity says survey
Recent research reveals that two in three people (61%) listen to music in the workplace and best yet, that listening to music at work leads to happier employees and boosts office morale and creativity.
Here’s some of our fascinating findings:
- Over a third (36%) of workers find that music helps to get them through the day
- 20% of workers find that listening to music is a welcome distraction from their “boring” jobs.
- 16% admitted that they listen to music to drown out colleagues.
- One in ten (10%) revealed that they have judged a colleague based on their choice of music.
Research showed that the most popular genre of music in the workplace is pop/chart music, with over a third (34%) choosing it as their preferred genre, closely followed by rock (29%).
Any questions regarding November’s update, please contact us on 07929 506 143 or echrltd@aol.co.uk
