6 facts you may not know about St Valentine’s day and their (very loose) lessons in law

romance1.       St. Valentine is also the patron saint of beekeepers, greeting card manufacturers, fainting and epilepsy and protects travellers and happy marriages.

Epilepsy is likely to be a disability under the Equality Act 2010.  It is one of many disabilities that might be regarded as ‘invisible’.  Employers need to be particularly alert to disability that may be hidden.  Do not rule out that the possibility some conduct or behaviour may result from disability

2.       The British Museum has a letter that is regarded as the oldest valentine in existence.  Charles d’Orléans was captured by the English at Agincourt and kept prisoner for twenty-five years.  Whilst a prisoner he wrote poetry, including a St. Valentine’s Day note describing his sadness at being parted from his love.

During a redundancy process the possibility of alternative employment should be considered.  Employees may have skills you are not aware of.  Make enquiries about all your employee’s skills.

3.       Kisses are bisous in France, swsus in Wales, baci in Italy, Küsse in Germany, поцелуи in Russia, and 接吻 in Japan.

 In a 2012 case, the Employment Appeal Tribunal upheld a decision that it was an act of direct discrimination when an employer told an employee, who was Polish, not to “use her own language”.

 4.       In the 15th century the seat of emotion was thought to be the liver as well as the heart.  Burmese and Malay describe breaking your liver, not your heart.

The Health and Safety at Work etc Act 1974, requires employers to ensure a safe place of work and safe systems of work.  Clear rules about coming to work under the influence of alcohol or drugs and about drinking alcohol or drug taking while at work addresses risks associated by consumption of alcohol or drugs.  These are often covered in a Substance Misuse Policy.

5.       In Japan Valentine’ Day is celebrated by women giving chocolate to men..!  Fortunately, there is then “White Day”, on March 14 when men give cookies, candy or white chocolate.

Men and women should receive equal pay for equal work.  The UK has long had legislation enshrining that in law yet the gender pay gap remains.  The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 are a step to address this and come into force on 6 April 2017 and are mandatory for businesses employing more than 250 employees.

6.       In nineteenth-century Britain, some sent a “vinegar valentine” to those they did not like such as,

‘Tis a lemon that I hand you. And bid you now “skidoo”, Because I love another – There is no chance for you!’.

An employment contract includes implied obligations on the employer with regard to the self-esteem and dignity of the employee.  Case show that the use of foul and abusive language may breach that contract.   An aggressive or abusive management style may be a breach of contract.

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Pimlico Plumbers and worker status

Pimlico Plumbers – couldn’t miss that photo opportunity – so the Court of Appeal ruled this morning on the employment status of a gentleman carrying out plumbing work for Pimlico Plumbers.  He had signed an agreement which stated that he was a self-employed contractor and not an employee or worker.

Many small businesses are considering engaging contractors to carry out work that is usually regarded as more appropriate for employees to perform.  This case illustrates that it is not always straight forward and the business owner needs to be careful and sure of exactly the relationship  they want and then be sure that the agreements and work practices fit that model.

Under the terms of that agreement he agreed to follow the Company’s procedures and working practices which were set out in a manual.  The manual stated that he was required to wear company uniform, work a 5 day week of at least 40 hours and give notice if he took leave.  He was required to call in regularly and be available for on-call work.  He was required to follow detailed procedures about time sheets, invoice procedures etc. and detailed conduct guidelines.  Failure to follow the procedures led to instant dismissal.  The plumbers were provided with a van and paid rental charges for its use.  He was required to provide his own tools and paid his own expenses and was personally liable for his mistakes.  Eight clauses in the agreement restricted the other work he could carry out during the agreement and for three months after.

The plumber became ill and was unable to continue working five days a week.  He asked to reduce his working time and this was refused.  His contract was terminated.  Amongst other claims he made a claim for unfair dismissal, holiday pay and for disability discrimination.

The decision today is significant because it highlights different rights and benefits of each category of employment status.  The employment tribunal decided that he was not an employee on the basis that there were insufficient mutual obligations between Pimlico Plumbers and the plumber.  Pimlico Plumbers were not obliged to give the plumber work and were only obliged to pay him when they were paid.  They did however conclude that he was a worker, because of the various requirements of the manual, the fact that it appeared that the plumber was obliged to do the work himself rather than being able to sub-contract with someone to work for him and because he seemed to be contractually obliged to work a set number of hours.  This decision was upheld in the Employment Appeal Tribunal and a further appeal to the Court of Appeal was lodged and the Court of Appeal gave its ruling today coming to the same conclusion today.

The consequence of this is that the plumber has no claim for unfair dismissal or in relation to other employment rights because he is not an employee.  He may however claim for disability discrimination, holiday pay and unauthorised deductions from wages as these are all rights workers enjoy.  All that can be costly.  With the Uber appeal pending this story will no doubt continue.

 

Are you ‘at risk’?

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Since Christmas I’ve had a few calls for advice from employees who have been put ‘at risk’ of redundancy.  I feel for them, just back from a Christmas break having spent too much on Christmas presents and then taken a New Year holiday as well – well I certainly did.  Return to work expecting to pay back on those hard-hit credit cards and suddenly (and for some out of the blue) the regular salary looks threatened.

Most of the time my advice has been to stay calm.  At risk does not mean you are redundant it just means that you may be.  It’s the start of a redundancy consultation.  It’s difficult but it’s important to try and be objective.  Redundancy is one of the fair reasons for dismissal but it must be a genuine redundancy and the procedure leading to the redundancy must be fair.  Mostly (but not always) there is a genuine redundancy situation.  The fairness of the process is often questioned.

As with all employment law there are some basic requirements but the crucial factor is often that of reasonableness.  The question is bearing in mind the resources available to the employer did the act in the way a reasonable employer might be expected to act.  It’s not what you or I would do but rather is it one of a range of things a reasonable employer might do in their particular circumstances.

With that in mind what should the employee at risk expect:

  • A pool from which those who may be made redundant are selected;
  • Individual consultation which gives them opportunity to make representations about the need for redundancies, their particular situation and the process
  • Objective criteria for selecting who within the pool may be made redundant, the criteria must not discriminate;
  • A consideration of whether there is suitable alternative employment available; and
  • A right of appeal if selected.

This means there are a number of opportunities for those who keep their heads to suggest alternatives to redundancy.  This may mean a proposal that makes the same savings to the wage bill but keeps jobs, such as reduced hours or some job-shares, different ways of working that may improve production or anything that may mean that redundancies are not essential.

Individually, your employer may not be aware of all your skills, there is opportunity to highlight these and find out about other roles you could fulfil.  If you feel this business is no longer for you use the additional time in the consultation period to consider what else you want to do and start going for it.

As I say, look at it objectively and try to keep positive.  Most redundant employees I see look back on it as having a positive impact on their lives.  Often though they were extremely stressed at the time.  If you can avoid that, all the better.

Can we talk? Five things you need to know about protected conversations

1485279892-picsayJanuary is one of the months when employers and managers return to work with renewed determination to resolve issues in their team. I’ve had a couple of clients who did just that and am pleased to say we’ve been able to get a quick solution using the protected conversation process. In these cases, it has been really helpful but there are pitfalls. So, what is it all about?
1. A protected conversation is an off the record discussion between employer and employee aimed at agreeing terms on which an employee may end their employment. It can be an extension of the without prejudice rule. Discussions of this type cannot be referred to in a subsequent unfair dismissal claim. This gives employers the opportunity to offer terms on which employment might end without fear that their discussions may later be referred to in tribunal proceedings if the negotiations fail. Successful negotiations would lead to a settlement agreement. For a settlement agreement to be valid and binding it must meet certain legal requirements.
2. If the employer acts “improperly” the protection does not apply and a subsequent tribunal may then decide they can hear evidence about the discussion.
3. Improper behaviour may be harassment or aggressive behaviour, victimisation or discriminating behaviour. It also includes putting undue pressure on the employee. Employers must therefore be careful about how the offer is presented and make sure the employee has the time to consider the proposal.
4. Protected conversation benefits are only of assistance in unfair dismissal claims. If an employee has other claims, including breach of contract or discrimination claims these conversations may still be referred to.
5. The conversation itself may be an act of discrimination so take care!
Often the pitfalls outweigh the benefits but for my clients this month it has been a successful approach resolving long-running grumbling issues without the upset of a disciplinary process.


		

Administration: What does it mean for employees

This week has seen two high profile retailers, BHS and Austin Reed, with many employees go into administration – what does that mean for employees of those businesses?

What is administration?

In simple terms, a company cannot pay its’ debts when they are due, the bank are no longer prepared to support them but it is believed that the business could be restructured or sold and remain viable in some form.  Administration gives the company time to restructure or find a buyer or take some other steps to maintain an ongoing solvent business.  An administrator is appointed to run the business whilst the options for the future solvent running of the business are explored and put into effect.  During the administration legal actions against the company, such as claims for payment of debts, are suspended.

What happens to employees following the appointment of the administrator?

The administrator has 14 days to decide whether to continue to employ any employee.

If they continue the employment after the 14 days the administrator pays ‘qualifying liabilities’, i.e. salaries, including holiday pay and pension contributions as a priority debt payable ahead of the administrator’s own fees and expenses.    The administrator may continue the employment until any restructuring takes place or may just continue for a short time, pending, for example, sale of stock.  Notice pay or redundancy pay are not qualifying liabilities.

If the administrator decides not to continue employment, the employment ends.  The employee then has possible claims for outstanding wages, holiday pay, notice pay, redundancy, breach of contract and failure to inform and consult.  These claims are however unsecured and employees rank low in the priority for payment.

In the event that employees are not paid by the Company the National Insurance Fund guarantees a basic minimum.  Claims from the Fund are made online by completing a Form RP1.

 

 

 

Tony Blackburn case and employment law

Another high profile ending of employment once again highlights some key employment issues.  The ending of Tony Blackburn’s contract with the BBC has once again highlighted misconceptions about employment law.

  • The nature of the arrangement between Blackburn and the BBC is unclear.  I suspect he is a contractor not an employee.  If so the BBC’s decision to end his employment may or may not breach that contract but it is the contract that defines whether there is a breach.  Only an employee has the right not to be unfairly dismissed.  Most contracts for services provide that they may be ended by giving a period of notice.  Beyond that the contractor’s remedies are limited.
  • From the information I have seen, the issue seems to be a question of honesty.  The BBC appear to dispute some responses he made to the Saville enquiry.  It does not appear to be about the incident that took place many years ago or any suggestion that Blackburn was involved in those incidents.
  • I heard the comment this morning, ‘what happened to innocent until proven guilty’.  This implies a perception that the standard of proof in such cases is that of a criminal court.  It is far from that.  The test is whether the employer acts reasonably or unreasonably in treating an incident as a sufficient reason for dismissing an employee.  Employment lawyers frequently hear from prospective claimants dismissed for an offence that they maintain they did not commit.  It is often difficult to explain that that is not the question, rather the question is was the employer’s belief that they did reasonable.
  • Dishonesty at work can be gross misconduct. Not surprising as an employer needs to be able to trust their employee.  If an employer has a reasonable belief that their employee has been dishonest, followed a fair procedure in coming to that conclusion and acted reasonably in all the circumstances a dismissal may well be fair.
  • The fact that the dishonesty was some time ago may not be a bar to dismissal.  If the employer discovers dishonesty some time after the event a dismissal may well be fair.  The most frequent example of such cases are where an employee has lied on their CV.  Dismissal in such cases may be fair.

It will be interesting to see how this story develops.

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5 Office Romance headaches

Apparently 1 in 3 of us have had a relationship at work but rIMG_20160212_151548783 (1) (2)omance in the office can be a real headache for business owners and HR managers.  Look out for:

  • an impact on performance.  Office romances can be distracting not just for the individuals concerned.
  • favouritism.  A romance between a manager and subordinate might lead to favouritism or the perception of favouritism.  Different standards or behaviour or performance by the employee involved with the manager may be accepted or perceived to be accepted creating disharmony which may lead to the loss of staff or even a claim.
  • inappropriate behaviour.  The romancing couple may leave other staff feeling embarrassed or uncomfortable with their behaviour.
  • abuse of seniority.  A junior may feel compelled to date a more senior colleague because of concerns that not to do so could be to their detriment.
  • Inconsistency.  Treating an employee differently or specially because of the relationship may lead to allegations of inconsistency of expectations of conduct or performance which may create a problem if action is taken regarding that conduct or performance.
Some organisations ban office relationships but that is probably unrealistic and might mean problems are more likely to arise as the relationship is hidden.  More realistic is to prepare for it and ensure your policies cover the actions you may take when it happens.  Areas that you may address include standards of behaviour, the possibility of moving one of the partners to the affair, a requirement that a manager should disclose any relationship they have with their subordinates or a sexual harassment policy that is publicised within the business and adhered to.  I have seen cases where the a more senior colleague has started a relationship with a junior colleague and the junior colleague has regarded it as harassment.  It’s a fine line.

 

Fit for work

For most SMEs the absence of an employee for any period never mind a protracted period can cause problems.  I am often asked to advise on long term sickness situations.

Many are not aware of the Fit for Work service.  The service includes a telephone advice line to help with absence procedures but of more assistance may be the opportunity for a free referral for an occupational health assessment.

Where an employee has been absent for four weeks or more, is likely to be able to return to work and consents you will be able to refer them for an occupational health assessment.  The aim is to produce a return to work plan.  If the plan recommends medical treatment and the employer agrees to fund the cost of that treatment payments of up to £500 can be made without charge to income tax or NICs.

More details about the service can be found here fitforwork.org

Worker or self-employed?

The question of what constitutes a “worker” was addressed again in a recent Employment Appeal Tribunal case*.

What is the significance of the worker category?

Classification as a worker gives the individual more employment rights than being self employed.

Workers are protected against unlawful deductions from wages,  by the Working time legislation which prescribes maximum weekly working time, daily and weekly rest requirements and have a right to paid holiday.

Businesses who hire staff on a self employed basis and don’t provide their staff with paid holidays run the risk of a claim from former or existing staff that their status is that of “worker” and they are entitled to paid holiday.

In this case the Claimant was a self-employed sub-contractor working almost exclusively for a company. There was no obligation on him to accept work when offered and no obligation on the company to offer him work. He claimed he was a “worker” and entitled to holiday pay.  He had been working with the company for 16 years, they regularly offered him work and expected him to turn up and work during working hours.   He wore the company’s work clothes and drove its vehicles.

The Employment Appeal Tribunal said there were three questions to ask in this situation:

  1. Was there a contract at all?
  2. Did the contract require the individual perform the services personally? If he was entitled to provide a substitute, that would be an important, but not decisive, factor.
  3. Was he was carrying on a business and was the Company a client of that business. This involved considering the level of control the Company had over the individual, whether he was integrated into the business and whether he marketed his services to others.

In this case they concluded that there was a contract, that it was for the services to be provided personally and that the Company was not a client of a business carried out by the Claimant, they decided that he was a worker.

Practical Implications

When engaging staff on a self employed basis, companies should consider carefully their requirements for the staff and their real status.  Failing to correctly identify a worker risks a future claim for arrears of holiday pay.

If you believe a self employed contractor will not count as a worker,  ensure there is a professionally drafted contract defining the relationship showing that the status of the contractor and demonstrating that they do not have “worker” status.

*Plastering Contractors Stanmore v Holden

Increase in National Minimum Wage

From Wednesday 1 October the National Minimum Wage (NMW) will increase.

The new rates are

  • The adult rate, for workers aged 21 and over, will increase by 3% to £6.50 an hour (up 19p from £6.31).
  • The youth development rate (for workers aged between 18 and 20) will increase by 2% to £5.13 an hour (up 10p from £5.03).
  • The young workers rate (for workers aged under 18 but above the compulsory school age who are not apprentices) will rise by 2% to £3.79 an hour (up 7p from £3.72).
  • The rate for apprentices will rise by 2% to £2.73 an hour (up 5p from £2.68).

The NMW is enforced by HMRC.  The penalties for non-payment were increased earlier this year.  An employer who has failed to pay NMW for a period after 7 March 2014 can be fined up to £20,000.  They may also face a claim for the unpaid wages from their employees.

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