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.

Today, we celebrate the commencement of National Obesity Awareness Week. This week is aimed at helping improve the nations health together with raising awareness of the potential health implications associated with obesity. With over 10,660 hospital admissions in 2018 being directly attributable to obesity, employers should act now to (sensitively) help employees make better informed choices and move into sustainably healthy routines. 

Looks like 2020 will be another busy year for employment law.  Below we take a look at some of the changes on the horizon taking place primarily in April 2020.

Contracts of employment:

1. Employers will have to provide employees with a contract of employment on or before day 1 of employment. At the moment the contract can be provided within the first 8 weeks of employment.
2. Contracts will need to be provided to employees and workers. Currently, workers are not legally entitled to a contract.
3. The information required to go into those contracts is expanding. Employers will now have to include information about training and benefits.

So, employers are going to have to re-think their recruitment practices to prepare for this change.

Changes to holiday pay calculations 

Currently if staff have variable hours to calculate their holiday pay an average is taken over the last 12 weeks. From April, employers will have to take an average over the previous 52 weeks of employment.

Employers will have to review their holiday pay calculation arrangements to ensure compliance with these changes.

Parental bereavement leave

There will be a new statutory entitlement for parents who have lost a child under the age of 18.

Employers will need to consider updating their Staff Handbooks to reflect this.

IR35 

Changes to the IR35 rules have been delayed for 12 months due to the the Coronavirus pandemic.

Zero hour workers

it is suggested that there will be new legislation to allow zero hour workers the right to request a more permanent and stable contract after 26 weeks’ service.

Employers should assess now their use of zero hour workers.

For any further information about any of these changes or any employment related matters please contact Hannah Belton, Director, on 01267 493130 or email [email protected]

Dry January challenges you to go alcohol free for 31 days and sims to raise awareness of the effects of alcohol. It is the annual movement through which millions of people give up alcohol for the months of January. It is run by the Charity Alcohol Change UK.

Does it work – Yes. 72% of people who do Dry January are still drinking less riskily six months later. Giving your body a break from alcohol for January (especially after the heavy festivities of December) is beneficial for you overall health.

Employer Tip – Organise a staff event in January where no alcohol is allowed to help raise awareness and promote alcohol free activities.

The answer is: Yes and no!  Because it depends on whether your staff are salaried or they get paid hourly.

Those that you pay based on the number of hours they work should get paid for working an extra day.

Meanwhile, salaried staff should not ordinarily get any extra pay.

But if salaried staff are paid only National Minimum Wage, or very close to that level, then there’s a risk that the leap day might accidentally mean that their earnings are below the legal minimum.

Our advice is to check the wording of your contracts now and establish if there will be any breach of National Minimum Wage.

HR Departments are always busy this time of year.  Whether it’s arranging the Christmas party, dealing with inappropriate Secret Santa gifts or the fall-out from the Christmas Party.  We have identified below the most common issues facing HR in the run up to Christmas.

1. Ensure businesses provide suitable equipment to put up decorations and that they do not block fire escapes.
2. Ensure Secret Santa gifts don’t offend people or could be construed as discrimination, bullying or harassment.
3. Inform employees in advance of the days they are required to work over the holidays.
4. Be aware that employers are vicariously liable for employees’ conduct (e.g. fighting) at Christmas parties.
5. Ensure all needs are catered for (e.g. vegetarians, non-drinkers and disabled needs).
6. Be aware of the consequences of underage drinking and the offence to knowingly permit or condone illegal drug use.
7. Ensure the party does not clash with other religious events (e.g. Hanukah) and consider child care commitments.
8. Ensure managers don’t discuss promotions, pay rises or bonuses with staff while under the influence of alcohol.
9. Remind employees not to post information on social media that adversely affects the employer’s reputation or that breaches its bullying/harassment procedures.
10. Remind employees that if they are due to attend the office the day after the Christmas party they should not attend work under the influence of alcohol or drugs.
11. Check if Christmas bonuses are truly discretionary..
12. Consider removing any mistletoe to avoid claims of sexual harassment.
13. Consider how to deal with snow days – there is no statutory right to pay if snow affects work attendance.

From everyone at Morgan LaRoche Solicitors we hope you all have a wonderful Christmas.

Mr Conisbee was employed for approximately 5 months before resigning. He alleged discrimination on the ground of religion or belief contrary to the Equality Act 2010. His belief being vegetarianism. At a preliminary hearing, an employment tribunal decided that this belief did not qualify for protection under the Act. Although Mr Connisbee’s vegetarian belief was genuinely held and was worthy of respect in a democratic society, it failed to meet the other legal hurdles for protection:

• It did not concern a weighty and substantial aspect of human life and behaviour: vegetarianism is not about human life and behaviour, it is a life style choice and in Mr Connisbee’s view believing that the world would be a better place if animals were not killed for food.
• It did not attain a certain level of cogency, seriousness, cohesion and importance: the reason for being a vegetarian differs greatly. Vegetarians adopt the practice for many different reasons: lifestyle, health, diet, concern about the way animals are reared for food and personal taste. On this point, the tribunal contrasted veganism, stating, obiter, that the reasons for being a vegan appear to be largely the same and that there was therefore a clear cogency and cohesion in vegan belief.
• It did not have a similar status or cogency to religious beliefs.

This decision is not binding on other tribunals but provides an example of how they are approaching religion or belief claims based on vegetarianism.

The Labour party made several announcements of interest at the Labour Party Conference in Brighton, which took place in September 2019. The proposed reforms elaborate on promises made earlier this month at the TUC Congress where party leader Jeremy Corbyn pledged to create a new Ministry for Employment Rights and a Workers’ Protection Agency.

Shadow Chancellor of the Exchequer announced a shortening of the working week to 32 hours, with “no loss of pay”, within ten years under a Labour government. He stated that working hour changes would be negotiated as part of plans to roll out collective bargaining schemes.

Additionally, shadow equalities minister announced plans to bolster workplace support for menopausal women, including the introduction of flexible hours and the requirement that managers in firms with over 250 employees receive training on the effects of the menopause to accommodate the needs of employees. Raising the status of menopause to that of a long-term fluctuating health condition was also discussed. These proposals follow data published by the CIPD that revealed three in five menopausal women between the ages of 45 and 55 say it has a negative impact on them at work.

A court in Paris has found a French employer liable for the death of a man who died of a cardiac arrest during sex while on a business trip. The death was ruled an industrial accident, even though the employer argued that the man was not carrying out professional duties when he joined a guest in her hotel room. The French court decided that an employee on a business trip is entitled to social protection “over the whole time of his mission”, regardless of the circumstances.

The Trade Union Congress (TUC) has called on the government to increase the number of bank holidays for workers in the UK to 12. There are currently 8 bank holidays in England and Wales, 9 in Scotland and 10 in Northern Ireland. The TUC’s proposed increase would bring the UK figure more in line with the average of other countries in the European Union.

The TUC argues that as technological advancements benefit our economy, workers should gain from this too. It is also campaigning for stronger public holiday rights for workers, meaning that those who work bank holidays would have the right to premium pay or time off in lieu.

It was announced in June that the early May bank holiday in 2020 will be moved from Monday 4 May to Friday 8 May as the bank holiday will be used to commemorate the 75^th anniversary of VE day.

 Following a ruling by the Court of Justice of the European Union, the Information Commissioner’s Office have updated their guidance on timescales for responding to a subject access request (SAR), as well as other individual rights requests. The timescale has now changed to reflect the day of receipt as ‘day one’, as opposed to the day after receipt. For example, a SAR received on 3 September should be responded to by 3 October.

Ashers bakery, who refused to bake a cake with the message “Support gay marriage” on it, are being taken to the European Court of Human Rights by customer Gareth Lee. Mr Lee seeks to challenge the Supreme Court decision which reversed the previous decision of the Belfast county court and the Court of Appeal that the Christian owners of Ashers had discriminated against him.

Following the decision in a recent case, the department for Business, Energy and Industrial Stretgy (‘BEIS’) has removed references to the holiday pay calculator from its guidance on calculating holiday pay for workers without fixed hours or pay. The holiday pay calculator has been removed “while the service is under review”. It is not known when the outcome of the review will be known, or whether the guidance will be amended in other respects.

With the sad news of Thomas Cook’s collapse and with an estimated 600,000 people worldwide having their travel plans disrupted we take a look below at the employment law implications for employers and employees.

Employees are only entitled to be paid wages for work they have done. So, if employees cannot come to work and carry out the work they are paid to do, the employer is under no obligation to pay them. This is subject to the employee’s employment contract or any workplace policies that may provide otherwise. If a policy or contract of employment states that employees will be paid if they are unable to attend work because of matters beyond their control (such as the collapse of a tour operator), then employees have a contractual right to be paid. Without this right, employers may choose instead to exercise their discretion and pay employees who cannot make it into work as a goodwill gesture.

If it is not feasible to pay employees who cannot make it into work as a gesture of goodwill, how should an employer manage the situation? The easiest way forward would be to ask the employee to agree to take the time off as holiday. Under the Working Time Regulations 1998, employers requiring employees to take holiday must give them at least twice as much notice as the length of that holiday. For example, a requirement to take two weeks leave must be given with at least four weeks’ notice, however the regulations do permit employers to exclude this obligation.

Employees who are able to work effectively “off-site” from wherever they are stranded should generally be paid, and for some, this is a possibility. Employers should consider what the contract of employment and internal policies say about working away from the normal place of work and what facilities employees need to carry out their work. The last of these points will most probably dictate whether staff stranded overseas can work off-site.

The Employment Appeal Tribunal (EAT) dismissed an employer’s argument that an employee’s basic award and compensatory award should have been reduced to nil on account of the fact that she had secretly recorded a meeting with an HR representative.  As a result of the EAT’s finding, the EAT gave some guidance on the extent to which covert recordings made by employees should affect any compensation awarded by an employment tribunal for unfair dismissal.

Further, it was decided that it could not be said that the covert recording of a meeting by an employee necessarily undermines the relationship of mutual trust and confidence between an employer and an employee.  It was noted that such recordings may take place for a variety of reasons including:

1. to keep a record;
2. to protect the employee from a risk of misrepresentation; or
3. to enable the employee to obtain legal advice.

However, it was noted that it is good practice for parties to communicate an intention to record a meeting, and it would generally amount to misconduct not to do so.  In this case, the tribunal had been entitled to find that the employee had not recorded the meeting with the intention of entrapment.  In fact, she had recorded a single meeting concerned with her own position rather than the confidential information of the business.  Therefore, there was no reason to interfere with the finding that the compensatory award should be reduced by 10% to reflect this conduct as requested by the employer.

The EAT observed that it is relatively rare for covert recording to appear on a list of examples of gross misconduct in a disciplinary procedure, but this judgment may encourage some employers to review their procedures to ensure that this is expressly stated to their employees.

If you require any further guidance or advice, please do not hesitate to contact our Employment Team.

The Employment Appeal Tribunal (EAT) determined in a recent case that they did not consider an employer to be vicariously liable for harassment under the Equality Act 2010 (EqA 2010) where one of their employees posted a racially offensive image on Facebook and shared it with a colleague.  As the employee was not at work at the time the image was posted on Facebook and did not mention any colleagues or the employer in the post, the EAT decided that, on the facts of this case, an employment tribunal had been right to conclude that the posting of the image was not done “in the course of employment” which is an essential element of employer liability under the EqA 2010.

The EAT particularly noted that it was not possible or even desirable to lay down any hard and fast guidance in respect of such conduct and that it should not incur employer liability under the EqA 2010, especially as the extent to which social media platforms are used continues to increase.  Just as is the case with the physical work environment, whether something is done in the course of employment when done in the virtual landscape will be a question of fact for the tribunal in each particular case, having regard to all the circumstances.  

In this case, a lay person would not consider that the sharing of an image on a private non-work-related Facebook page, with a list of friends that largely did not include work colleagues, was an act done in the course of employment.

If you require any further guidance or advice, please do not hesitate to contact our Employment Team.

Wahaca’s policy has been amended as a result of a waiter having to pay a customer’s unpaid bill. Prior to amendments, the policy required waiters to pay for unpaid bills if “real negligence” had happened. It has not been clarified what it was meant by “real negligence”.

Wahaca has said that the cause for this event was due to an “internal communications issue”. Since the event, they have said that waiters do not have an obligation to pay for the customer’s unpaid bill. Nonetheless, the amended policy gives scope to investigate the waiter if Wahaca are dubious that the waiter has been conniving.   

If waiters are receiving a small salary, having to pay a customer’s unpaid bill may also mean the National Minimum Wage Act 1998 is breached.