NHS Professionals, an employment agency owned by the Department of Health and Social Care, is to be sued by a pregnant healthcare assistant after it refused to put her on furlough. The woman, who has worked for a London hospital on an agency contract for six years, was sent home by the agency for safety reasons eight weeks ago and has not worked or been paid since. She will argue that this is a breach of the Employment Rights Act 1996. Maternity Action, the charity supporting her, have stated that this is not a stand-alone case and warns that some employers and agencies are not abiding by the legal health and safety protections in place to protect pregnant women. The case could serve as a precedent for other vulnerable workers who have been left without work or pay as a result of the COVID-19 pandemic.

Mental Health Awareness Week, organised by the Mental Health Foundation, is a specific week designed to raise awareness for mental health. As mental health problems can affect anyone on any day of the year, it is important to stand united and support those around us, who may or may not be suffering with mental health issues.

We are hosting a seminar called “Employees and Mental Health” in both Swansea and Carmarthen in May 2020, details of which can be found on our Eventbrite page. Here is the link to book your place on our seminars: https://www.eventbrite.co.uk/o/morgan-la-roche-12683057251

According to Cancer Research UK, melanoma skin cancer incidence rates in the UK are projected to rise by 7% by 2035.

Sun Awareness Week is a wellbeing event organised by the British Association of Dermatologists (BAD).

The awareness event aims to provide the public with information on both skin cancer prevention – encouraging people to regularly self – examine for skin cancers. And detection – teaching people about the dangers of sunburn and excessive tanning.

Tips – Stay hydrated, wear the correct clothing, wear sunglasses and apply sunscreen properly.  You should also consider what to do with staff who are required to work outside during the hot months.

The International Labour Organisation (ILO) marks its World Day for Safety and Health at Work on or around 28 April each year, and it is an international campaign to promote safe, healthy and decent work around the world. 

The ILO continues to do important work on occupational safety and health, especially in the developing world. 

The world day this year attempts to take stock of 100 years of work in improving occupational safety and health. It will also look to the future for continuing these efforts through major changes such as technology, demographics, sustainable development including climate change and changes in work organisation.

The Supreme Court has decided that Wm Morrison Supermarkets plc (Morrisons) is not vicariously liable for the actions of an employee who, without authorisation and in a deliberate attempt to harm his employer, uploaded payroll data to the internet using personal equipment at home.

 

The Supreme Court found that the circumstances in which the employee had committed the wrongful disclosure of payroll data were not so closely connected with acts which he was authorised to do that they could fairly and properly be regarded as having been done by him while acting in the course of his employment.

 

 

This decision will provide welcome confirmation for employers that they will not always be   liable for data breaches committed by rogue employees. It similarly provides helpful clarification for practitioners on the way in which the judgment should be applied in future cases concerning vicarious liability.

The facts in this case were extreme. It seems that Morrisons were wholly unaware of the grudge held by the employee. The employee also took extraordinary actions to cover up what he had done and even to frame another employee. In the circumstances, this judgment seems sensible in many respects.

Employers should take away from the judgment that although this case was decided under the previous data protection regime, the DPA 1998 and the GDPR are based on broadly similar principles and the GDPR and Data Protection Act 2018 (DPA 2018) will not be a barrier to vicarious liability actions in data privacy proceedings commenced under the current regime. The GDPR makes compliance far more onerous now for controllers who will run the risk of exposure, if they fail to safeguard data to statutory standards and neglect to have governance in place to curb the malicious acts of rogue employees.

The Employment Appeal Tribunal (EAT) has decided that weekly deductions for the purpose of buying a season ticket to football matches, which was voluntary on the part of the employee, did reduce pay for national minimum wage (NMW) purposes.

The EAT stated that the arrangements in this case were clearly deductions, not payments, and that there was no scope to argue that something that would normally be construed as a deduction was actually a payment.

The EAT also decided that, while workers can consent to deductions from pay, they cannot opt out of, or vary the applicability of the NMW Regulations.

The government has published new statutory guidance for England and Wales on the Modern Slavery Act 2015 (MSA 2015). The guidance is aimed at staff in England and Wales within public authorities who:

• May encounter potential victims of modern slavery.
• Are involved in supporting victims.
• Make decisions on whether an individual is a potential victim of modern slavery for the purpose of the National Referral Mechanism.

The guidance sets out the support available to victims and the process for determining whether someone is a victim.

On 26 March 2020, the government published a statement setting out how it is tackling modern slavery in its supply chains. The statement assesses the risk of modern slavery across around £50 billion of the government’s annual spending. The government acknowledges that thousands of UK businesses are currently required to publish annual modern slavery statements and indicates that its own statement is intended to lead the way for the public sector.

Link to the new guidance is available here :  Home Office: Modern Slavery Act 2015 – Statutory Guidance for England and Wales, Version 1.0 (March 2020)

The government has published guidance for employers on the new right to statutory parental bereavement leave and pay which came into force on 6 April.

 

The guidance confirms what an employee’s entitlements are to statutory bereavement leave and pay, who is eligible, the notice that must be given by an employee to start and cancel leave and pay, how employers should deal with requests for employees who are not eligible, and the records that an employer must keep in respect of payments made.

 

It also confirms that assistance for bereavement pay is available for employers: payments can be reclaimed from the government, and applications may be made by employers for a government advance if they cannot afford to make the payments in the first place.

 

Link to the guidance: GOV.UK: Statutory Parental Bereavement Pay and Leave: employer guide (8 April 2020).

The government’s guidance on how to calculate holiday pay for workers without fixed hours or pay has been updated to refer to the new 52-week reference period introduced by the Good Work Plan.

 

The revised guidance explains the following key changes implemented on 6 April 2020:

• Employers must now use 52 weeks’ worth of pay data to calculate holiday pay for workers without fixed hours or pay, instead of 12.
• Where a worker does not have 52 weeks’ worth of pay data, the employer should use however many weeks they have. If a worker takes holiday before they have worked a full week, the employer should pay the worker an amount which fairly represents their pay for the length of time they are on leave. In working out what is fair, an employer must consider the worker’s pay, the pay they have already received and what is paid to other workers doing a comparable role for the employer.
• It is still the case that weeks in which the worker receives no pay are excluded from the reference period, and earlier weeks in which pay was received will be counted instead, even if this takes the employer back more than 52 weeks. However, employers are not required to look beyond a 104-week limit to achieve 52 weeks’ worth of pay data. If the worker does not have 52 weeks’ worth of pay data within the preceding 104 weeks, the reference period is shortened to however many weeks of data are available in the 104-week period.

 

As before, the guidance goes on to provide details of how to use the new reference period to calculate holiday for different types of worker (including temporary workers and workers with irregular hours or on zero-hours contracts), as well as to tackle some other potential areas of difficulty. For example, it explains that in most cases it will not be possible to use 12 months’ pay data for employees who are paid monthly on a variable rate, since this will not necessarily correspond with the 52-week period.

 

While the law surrounding holiday entitlement and pay for workers without fixed hours or pay can be fraught with difficulty, the updated guidance will hopefully provide a useful starting point for employers and practitioners navigating the new provisions.

 

Link to the guidance: Department for Business, Energy and Industrial Strategy: Guidance: Calculating holiday pay for workers without fixed hours or pay, GOV.UK (updated 6 April 2020).

Who actually walks to work anymore?! In celebration of walk to work day, why not change up your routine, add a little more time to it, and see how a slower start to your day can lead to a more efficient life overall?

In an age of growing awareness about how being sedentary affects our health, walking to work can make a huge difference in our lives, and our lifespans.

Stress Awareness Month has been held every April since 1992 to increase public awareness about both the causes and cures for our modern stress epidemic. According to the Mental Health Foundation 74% of UK adults have felt so stressed at some point over the last year they felt overwhelmed or unable to cope.

Millions of us around the UK are experiencing high levels of stress and it is damaging our health. Stress is one of the great public health challenges of our time, but it still isn’t being taken as seriously as physical health concerns. Stress is a significant factor in mental health problems including anxiety and depression. It is also linked to physical health problems like heart disease, insomnia and digestive problems.

Employer Tip – During Stress Awareness Month try to organise a yoga practice for your employees or a meditation session during a lunch break. As an employer, aim to promote methods of stress management in the workplace and implement strategies to overcome concerns.

In Sunshine Hotel v Goddard, the EAT confirmed that there is no legal requirement for employers to carry out a separate investigatory hearing during a disciplinary process.

 

When an employer carries out a disciplinary process, it should always follow its own policies, but also the Acas Code of Practice. While a failure to follow the Code isn’t unlawful, an employment tribunal will take the Code into account when considering whether or not an employer has acted reasonably. 

 

Paragraph 5 of the Acas Code states: “It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.”

 

So, provided the employer acts reasonably in its investigations, an employer doesn’t need to hold an initial investigatory meeting – it only needs to conduct its investigations properly to establish the facts. While nearly all cases will involve some sort of investigation, the amount of investigation required will vary depending on the individual circumstances. The Code stipulates that the more serious the allegation, the more thorough the level of investigation will be required.

 

The position will of course be different if there is a collective agreement, or a disciplinary policy which requires the employer to hold a separate investigatory meeting. In that situation it may be unfair if the employer fails to comply with its own policy (but not always).

 

In this landmark case, an employment tribunal judge has ruled that ethical veganism is capable of amounting to a philosophical belief under the Equality Act 2010.

 

The Claimant, Jordi Casamitjana, claimed that he was dismissed by his employer, the League Against Cruel Sports, an animal welfare charity, after he raised concerns about the charity’s pension fund – that it invested in companies involved in animal testing.

 

His employer claimed that the Claimant was dismissed for gross misconduct for reasons unconnected with his veganism.

 

The judge ruled that ethical vegans should be entitled to similar legal protections in British workplaces as those who hold religious beliefs.

 

The Claimant is an “ethical vegan” (also known as a “moral vegetarian”) and an ethical vegan is someone who not only follows a vegan diet but extends the philosophy into other areas of their lives and opposes the use of animals for any purpose. An important distinction should be noted between vegans and ethical vegans as it is only the beliefs of ethical vegans that will be protected by UK law. Ethical vegans don’t just avoid eating or using animal products – they also try to exclude all forms of animal exploitation from their lifestyle. For example they avoid wearing or buying clothing made from wool or leather, or using toiletries from companies that carry out animal testing. Therefore, the Claimant’s claim will not open the flood gate for vegans to bring similar claims against their employers.

 

The Claimant’s case was finally settled this month when his employer, which previously argued he was dismissed properly for gross misconduct, conceded that he had done nothing wrong in raising his concerns.

 

Speaking after the settlement, the Claimant said: “After nearly two years of litigation against the League Against Cruel Sports, I am extremely happy with the conclusion that we have secured. The case has established that ethical vegans are protected from discrimination, and I have received the acknowledgement I sought that my dismissal was based on my ethical veganism and was not justified or justifiable.”

There is a change in legislation happening on 6 April 2020. 

Changes to Contracts of Employment

From 6 April 2020, your contracts of employment must contain the following information (as well as the previous information that was legally required):

• the days of the week the worker is required to work, whether the days and working hours may be variable and how any variation will be determined;
• any paid leave to which the worker is entitled (for example maternity leave);
• details of any other benefits provided by the employer (for example health insurance, childcare vouchers etc);
• any probationary period, including any conditions and its duration; and
• any training entitlement provided by the employer, including whether any training is mandatory and/or must be paid for by the worker.

When Contracts must be issued

There is also a change in the legislation that requires Contracts of Employment to be issued no later than the first day of employment.

 Changes for Workers

From 6 April 2020 you are also required to provide a statement of terms and conditions to workers (in addition to employees) no later than day 1.

How MLR can help?

We can provide you with a bespoke legally compliant Contract of Employment and Statement of Terms and Conditions for your Employees and Workers.

Next steps

If you are interested in ensuring that your HR documents are compliant before 6 April please email [email protected] with a copy of your current contract of employment and staff handbook.

Today is Time to Talk Day, a day in which we must promote the open discussion about mental health to help change lives. One in four of us will be or are already affected by mental health problems, however too many people are made to feel isolated, embarrassed or even worthless because of this. To promote awareness, it’s vital to address mental health at work for those with existing issues, for those at risk, and for the workforce as a whole. A toxic work environment can be corrosive to mental health. Talking about your feelings, keeping active, eating well, drinking sensibly, taking a break and asking for help are all suggested ways to help manage mental health and are practical tips to support those who may be suffering. We are hosting a seminar called “Employees and Mental Health” in both Swansea and Carmarthen in May 2020 and would love to see you there. Here is a link to book our seminars: https://www.eventbrite.co.uk/o/morgan-la-roche-12683057251

World Cancer Day is an international day to raise awareness of cancer and to encourage its prevention, detection and treatment, World Cancer Day is led by the Union for International Cancer Control to support the goals of the World Cancer Declaration. 

From an employment law perspective – are you aware of how to manage a situation where an employee is diagnosed with cancer? If not, contact Morgan LaRoche for detailed advice.

 A Swindon based recruitment agency is rewarding workers with four days of extra holiday per annum if they don’t take smoke breaks. The managing director argues that the policy aims to reward non-smokers, not penalise smokers. Accordingly, he argues that the policy does not discriminate, and is in fact balancing out the discrepancy in the longer hours worked by non-smokers who do not take frequent smoke breaks.

The following rates are expected to apply from April 2020:

 

• The weekly rate of statutory sick pay (SSP) will be £95.85 (up from £94.25).
• The weekly rate of statutory maternity pay (SMP) and maternity allowance will be £151.20 (up from £148.68).
• The weekly rate of statutory paternity pay (SPP) will be £151.20 (up from £148.68).
• The weekly rate of statutory shared parental pay (ShPP) will be £151.20 (up from £148.68).
• The weekly rate of statutory adoption pay (SAP) will be £151.20 (up from £148.68).

 

The increase normally occurs on the first Sunday in April, which would be 5 April 2020.

The government has responded to the recommendations of the Low Pay Commission regarding increases to the National Living Wage (NLW) and the National Minimum Wage (NMW). The government has accepted the recommendations which will come into effect in April 2020, subject to Parliamentary approval. The following changes are set to take effect:

 

• The NLW for workers aged 25 and over will increase from £8.21 to £8.72 per hour.
• The NMW for 21- to 24-year-olds will increase from £7.70 to £8.20 per hour.
• The NMW for 18- to 20-year-olds will increase from £6.15 to £6.45 per hour.
• The NMW for 16- to 17-year-olds will increase from £4.35 to £4.55 per hour.
• The apprentice rate for those aged under 19 or in the first year of an apprenticeship will increase from £3.90 to £4.15 per hour.

 

The NLW is expected to rise to around £10.50 an hour by 2024, following a recent pledge made by the Chancellor, to increase the rate to two-thirds of median earnings. The Chancellor has also announced plans to expand the reach of the NLW to cover workers aged 23 and over from April 2021, and to those aged 21 and over within five years.