Commercial Solicitors in South, West and Mid Wales – Morgan LaRoche
The Department of Business, Energy and Industrial Strategy (BEIS) have created a useful tool and guidance for employers for calculating workers holiday pay entitlement whose pay/hours are not fixed. The guidance is by no means binding but simply compliments existing government guidance. Whilst the new online calculator gives employers a source for ease.
Source: https://www.gov.uk/calculate-your-holiday-entitlement
ACAS has recently published new guidance on age discrimination for employers, managers, HR professional, employees, trade union representatives and job applicants.
Firstly, the guidance provides clear examples of necessary actions to prevent age discrimination in the workplace, exploring different examples of forms of discrimination and suggesting alternative approaches on how best to deal with cases of age discrimination. Highlighting the legal requirements placed on employers whilst also suggesting practise measure to supplement the current legislation.
Further, the guidance includes illustrative case studies to help in identifying forms of age discrimination, including; direct, indirect, harassment and victimisation. Additional case studies explain the various stages at which discrimination can occur, for example, recruitment, promotion considerations and commonly upon dismissals.
Lastly, the guidance offers tips on how to avoid preconceptions and bias based on age, providing hyperlinks to other useful guidance on discrimination. The tips include avoiding language such as “gramps” and how to handle the situations surrounding the menopause.
Published alongside the guidance were two further documents detailing the top ten things for employers to consider and the top ten age discrimination myths.
Peebles Media Group has launched legal action against an ex-employee, Patricia Reilly after she was conned into making online payments of nearly £200,000 to a fraudulent company.
In 2015, Ms Reilly was working in the accounts department of Peebles Media, when she received an email which claimed to be from a managing director of the company. Ms Reilly liaised with her line manager who agreed to complete the online payment of £24,800 to the fraudulent company. Subsequently, 3 more online payments were made totalling £193,250, before discovering the emails were bogus. Ms Reilly was later sacked for gross misconduct and lost her appeal.
Ms Reilly did initiate legal proceedings in 2016 against Peebles Media for unfair dismissal, however, could not pursue the matter due to personal reasons.
Peebles Media was able to recover £85,265.68 from its banks but, is currently seeking to make up the remaining monies in court. Reilly has always expressed that she was not provided with training for detecting fraud, however, Peeble argued Reilly ticked a box to confirm she had read a warning about fraud. Also, arguing that, “the suspicious nature of the circumstances which presented themselves to the Defendant did not depend for their identification upon specialist training or the like, but rather simply upon the use of ordinary care, and indeed, common sense”.
The civil case has begun and looks to be a landmark case legal action.
A recent announcement by the Government states it is scrapping the £65 settled status fee for all EU citizens who want to apply for permanent residence post-Brexit. The scrap comes off the back of several campaigns for the Government to pay the fee for public sector employees after several private sector employers publicly announced to pay the fee for their employees.
Further, an app for smart phones has been launched through which applications can upload documents, answer questions and submit photographs, to help modernise and speed up the process. However, despite the fee being scrapped applicants will still face several obstacles and requirements to qualify.
The Department for Business, Energy and Industrial Strategy (BEIS) has published guidance on the Employment Rights Act 1996 (ERA 1996) (Itemised Pay Statement) (amendment) (NO2) Order 2018.
The new legislation due to come into force in April 2019 will provide all workers with a right to an itemised payslip and enforcement of this point under a claim at an employment tribunal.
The guidance published looks to support both employers and workers in clarifying the legislation. Whilst outlining who qualifies for “worker” status and focuses the additional information required on workers payslips when for instance; wages are dependent on the hours worked. It also provides illustrative case studies and information on the necessity of elements such as: format, variation caused by unpaid leave of statutory sick pay and enforcement.
On 2 August 2018 the House of Commons Department for Business, Energy and Industrial Strategy (BEIS) Committee published a Gender Pay Gap Report as the first tranche of the Committee’s inquiries into aspects of executive pay and gender pay gap in the private sector. The Government has recently responded to the report which has now been published.
Firstly, the Government will not be extending the gender pay gap reporting obligations to companies with 50 or more employees, despite, the Government being enthusiastic in the encouragement for smaller companies to strive for fair representation of men and women at all levels and pay grades, the Government refuse to make it a requirement.
Secondly, the Government is keen for all employees to produce an action plan in future reporting years are being encouraged to publish their plans (which is central to Government Equality Office work). However, the Government refuses to make this a mandatory obligation and would rather allow employers the freedom to produce an action plan that is relevant to each situation to truly commit and embrace the issues.
Furthermore, partner remuneration was recommended as an inclusion in the central figures, currently partners in traditional partnerships and LLPs are excluded. While the Government welcomes organisations voluntarily publishing their data the Government do not accept the recommendations. Acknowledging that it will review the situation in future and the possible introduction of a voluntary reporting methodology.
Recommendations to amend regulations to include tenths rather than quarters in order to engage a more nuanced analysis and require employers to show part-time and full-time gender pay gap statics separately. The Government has again not accepted these amendments as they wish to consult with employers and membership bodies first.
The Government were asked in the report to clarify areas of ambiguity and publish fresh guidance on areas such as; how bonus figures are calculated. However, the Government have declined on creating new guidance on the basis they continually assess the current guidance jointly provided by ACAS and Government Equality Office and are content with their stance on this.
Moreover, the report acknowledged the possibility of extending the collection and reporting of pay gap data to include disability and ethnicity, in time for a 2020 publication. A Government consultation is already underway in respect of ethnicity, but no timeline has been set. The Government has set out plans to establish a framework for voluntary reporting on mental health and disability for larger employers. But no claim for a mandatory requirement on a business.
The Government are happy with EHRC enforcement strategy, providing enough certainty to employers in terms of non-compliance consequences. Positively 100% employees who fall under the category have published their information.
Clearly, there is no appetite for the Government to make changes to the gender pay gap reporting regime after just one full cycle of reporting, especially as employers are still getting used to this new regime. It looks more likely that if any changes were to take place it will be in 5 years when it is scheduled to be reviewed.
Statistics have been published on the ACAS early conciliation service for the period of April to September 2018. Around 85,400 totalled the numbers of individuals covered by the notification, which shows a clear increase from 2017 of just 57,000 individuals. The proportion of closed early conciliation cases leading to an employment tribunal claim equating to 23% which is near identical to the equivalent period in 2017 of 24%.
The Ministry of Justice has recently published, the employment tribunal quarterly statistics for the months July to September 2018.
When compared to the same period of 2017, receipts, disposal and outstanding case loads all increased with case loads surging to an increase of 77%. However, multi-claims fell by roughly 30% in respect of receipts and disposals, adversely, the caseloads for multiclaim rose by 30% during that period.
A further point noted from the statistics is 28% of complaints were disposed of via ACAS conciliated statements, 24% of complaints were withdrawn and 10% were completely struck out. Whilst a mere 8% were successful. The most common of complaints being “unauthorised deductions”.
Since the launch of the Employment Tribunal Fee Refund scheme introduced back in October 2017, over 21,000 applications were received. With around 20,000 of the claims receiving refund payments totally £15,825,000.00.
Link: https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-april-to-june-2018
The Government has responded to recommendations by the Taylor Review (July 2017) through the publication of the “Good Work Plan”, which shows the Government’s clear intention to legislate and improve employment status tests to reflect modern day society.
The Government recommends the narrowing between employment law status tests and tax law employment status tests, for a more cohesive approach.
Furthermore, the Government are allowing workers, not just employees the right to a written statement of terms from day one of employment rather than several months later. There are also several recommendations put forward such as: the right to request a stable contract and a ban on employers making deductions from tips, all in essence giving employees and workers more protection.
Once again, the Government is looks to be moving forward in promoting and recognising employees’ rights and balancing the scales between employees and employers.
With talk of snow again this week we look at how snow chaos can affect businesses.
Minimum working temperature
For workers who work inside, the general rule is that the temperature in workplaces should be at least 16 degrees Celsius. However, there is no legal minimum outdoor working temperature so employers need to rely on risk assessments. Employers do have to comply with Health and Safety requirements so should provide protective clothing and follow the HSE guidance.
Paying staff who can’t get to work
Employees are obliged to attend the office unless they are sick, on holiday or on family friendly leave etc. Therefore, if the office is open and employees cannot make it into work because they are ‘snowed in’, you are entitled to treat their absence as unauthorised and are under no obligation to pay them.
In practice though very few contracts of employment state that employees who cannot get into work because of the weather will lose a day’s pay. Taking such a stance may also have a negative impact on morale and productivity.
Additionally, if an employee’s normal mode of transport is out of action due to severe weather disruption they should not feel pressured to risk their safety to get into the office so it may be sensible to consider other options.
You could suggest the following alternatives:
Childcare issues
To avoid the office becoming a temporary playgroup, there are rules that allow parents to take time off when there is an ‘unexpected disruption to childcare’ such as school closures.
Strictly, the day would be unpaid but not all employers will take this approach.
Taking a “snowball” day
If you believe that an employee is using the weather conditions as an excuse for absence this could be a disciplinary matter.
However, it is doubtful that most employers would want to devote time and resources to investigating the circumstances of each individual worker who is suspected of taking a ‘snowball’ day.
Alternatively, you could let employees know by phone, email or text that any time off will need to be taken as holiday. You may find that once this has been communicated, employees suddenly start finding ways to get in.
Closing the office
If you decide to temporarily close your business premises at short notice because of unforeseen circumstances, such as heavy snowfall, and there is no work available for your employees as a result, you cannot withhold pay.
The only exception to this is if you have a specific clause in your contracts of employment and you should only withhold pay after taking legal advice.
Minimise the chaos
Employers should consider introducing an ‘adverse weather and a ‘homeworking policy’ so employees know what you expect of them when severe weather strikes. This will also help avoid confusion and conflict when the snowfall arrives.
For further information or advice please contact any of the team.
The Government published its draft Domestic Abuse Bill on 21st January 2019. The Bill will prohibit a domestic abuser from cross-examining their former victim in Family Courts. The proposed legal changes will also seek to ensure that abusers are forced to engage in rehabilitation schemes, that there is adequate safeguarding in place for victims in criminal trials, and to set up a national “domestic abuse commissioner” to improve the support for victims accessing public services.
Almost half of the people in England and Wales believe that Common law marriage exists
The British Social Attitudes Survey carried out by The National Centre for Social Research has revealed that 46% of the public believe that cohabiting couples form a common law marriage. This percentage is increased with people believing that it is more likely when children are put in to the equation.
The rapid increase in cohabiting couples and the lack of any legal status for such couples in England and Wales means that there is often severe financial hardship for a vulnerable party upon separation.
Employment Tribunals are looking to the future and have announced a trial period of pilot online trials, like those of Tax Tribunals. This system will allow cases to be conducted online from beginning to end using online resources and video hearings.
The Senior President of Tribunals believes this system could alleviate issues such as accessibility for disabled users of the courts. However, the scheme has been published with the main objective of encouraging settlements.
The busy world we live in, now means working from home or whilst commuting is fast becoming a growing normality. However, the recent changes to data protection legislation now means employees who access work emails on their personal devices outside of office hours could potentially be breaching GDPR, as a survey revealed.
Research undertaken by Insurance2go found that 14 million employees use company phones, however 18% use their own device as it is better than their company phone whilst 14% frequently use their own phone due to the familiarity.
However, this activity could be breaching GDPR guidelines. A clear element of business GDPR compliance is that any related data stored on employee’s personal devices must be as secure as that stored on the company’s own servers. So, it begs the question is company data as safe as we think?
The department for Business, Energy and Industrial Strategy (BEIS) has updated its guidance on calculating the minimum wage to include unpaid work trials.
The guidance has been updated to support employees who use unpaid trial periods as part of their recruitment process. Unpaid trial periods are a common and legitimate way of recruiting, however, some trials permit candidates to undertake jobs that should be paid at the National Minimum Wage.
The guidance has highlighted that the current legislation lacks definition of terms such as, “trial work period” and sets out factors that may be considered when considering whether a person should be paid. These include:
– is the trial genuinely for recruitment purposes
– is the duration of the trial reasonable to assess the candidate’s ability
– do the tasks completed give added value to the employer beyond testing the candidate’s ability
– what is the extent of observation during the trial
The key point to remember for employers is that the longer the trial period the more likely it is to result in NMW falling due.
Occupational Medicine (a scientific journal) recently published a study into the management of employees who suffer with early on set dementia. The disease currently affects around 42000 people under the age of 65 in the UK alone. The research specifically focused on those who are diagnosed between the age of 30 and 65 and has uncovered a widespread issue of poor case management and lack of support towards those with the disease.
For many workers, no reasonable adjustments were made to their roles to accommodate their needs. The research also revealed a lack of support and understanding from co-workers.
The Alzheimer’s society is encouraging employers to reaffirm employees’ rights through discussing long-term plans and helping to break down the stigma associated with dementia.
The Employment Appeal Tribunal (EAT)recently decided that an employment tribunal was wrong to find an employer was correct in dismissing an employee on the grounds of capability while he was contractually entitled to long-term disability benefits. The EAT stated there was a clear contradiction between the employer’s contractual right to terminate on notice and the employee’s contractual right to disability benefits. The employer could not terminate for incapacity reasons while the employee was entitled to disability benefits.
This case confirms the position in the previous authorities that an employer cannot terminate the employment of an employee for incapacity where they are contractually entitled to long term disability Permanent Health Insurance.
A guide on recruiting, managing and supporting employees with disabilities and health conditions has been published by the Department for work and pensions. The guidance follows the Disability Confident campaign, which was developed by employees, disabled representatives and the Government.
The guidance has been described as a “quick and easy reference tool” with the aim of improving knowledge and confidence of line mangers on managing staff members with disabilities or health conditions.
Click here to read more: https://www.gov.uk/government/publications/employing-disabled-people-and-people-with-health-conditions/employing-disabled-people-and-people-with-health-conditions
ACAS has published new research, to investigate the effect of the #MeToo movement on workplace culture. Despite, the widespread media coverage surrounding the #MeToo movement, only 1 in 4 respondents had seen an improvement and only 38% of workers were “very likely” to report personal experiences of sexual harassment in the workplace. Whilst, over half of respondents believe their employers are doing the right amount to reduce sexual harassment, this still leaves nearly 50% feeling that they don’t. Many believe that more could be done in the form of training staff, to change work culture.
ACAS has encouraged businesses to create a “safe and welcoming” environment so behaviour associated with sexual harassment “never sees the light of day” and also to encourage staff to have the confidence to report it.
Settlement arrived on 20 November 2018 for Sash Windows Workshops Ltd & another v King, coincidently, the same day the Court of Appeal was due to hear the case. The court was meant to be decide whether a worker is entitled to be paid accrued periods of annual leave upon termination of employment if the worker has been deterred from taking leave due to an employer’s refusal to grant such leave.
