Most employers will be aware of the extensive case law that has emerged over the past few years regarding the calculation of holiday pay where employees also work  overtime.

We have now received a decision from the Employment Appeal Tribunal (EAT) that has  ruled that voluntary overtime, worked over a sufficient period, is regarded as “normal pay” and so holiday pay must be calculated based on normal remuneration. 

In the EAT case, several council workers claimed that they hadn’t received the correct rate of holiday pay since their voluntary overtime wasn’t included in that payment.  The EAT relied on the principle that it would be unreasonable for the worker who receives standby allowances or overtime consistently and regularly to be deterred from taking leave if such payments weren’t included in their holiday pay. 

The issue of what constitutes “normal pay” was cleared up by the EAT, explaining that it would cover any work, contractual or voluntary, performed over a period of time.  If there was a sufficient or “intrinsic” link between the payment and performance of the task this would count as normal remuneration. Therefore, when the workers worked overtime voluntarily, they would perform the same tasks as they would under their employment contracts.  It wouldn’t necessarily make a difference either if there was an absence of an intrinsic link, it would be a question of fact for the tribunals to decide from the facts of the case.

Therefore, as an employer, the overarching principle accumulated from the extensive case law states that compulsory as well as voluntary overtime should now be included in workers’ holiday pay.

The Parental Bereavement (Pay and Leave) Bill 2017 was introduced into the House of Commons in July 2017. Under the bill, employed parents who have lost a child would be entitled to statutory paid leave to allow them time to grieve away from the workplace.

Although this is a private members’ bill, it is supported by the government and meets a Conservative manifesto commitment.

In July 2017, the House of Lords were presented with the Modern Slavery (Transparency in Supply Chains) Bill 2017.

The Bill makes further provision for transparency in supply chains in respect of slavery and human trafficking by extending the reach of the Modern Slavery Act 2015 to include organisations or public authorities.

HM Revenue & Customs (HMRC) enforces payment of the National Minimum Wage (NMW) and is currently investigating social care providers for underpayment of the NMW in respect of “sleep-in” shifts.

The government has recognised the difficulties posed to the sector by the cumulative financial liability for penalties and arrears of wages. As a result:

• The financial penalties faced by employers found to have underpaid workers for “sleep-in” shifts will be waived in respect of arrears of pay resulting from shifts that took place before 26 July 2017.

• The government is suspending enforcement activity in respect of “sleep-in” shifts until 2 October 2017. This will apply to HMRC investigations where there may be an underpayment in respect of such shifts and applies to employers in the social care sector only.

The “gig economy” (where individuals are engaged by businesses on a flexible, ad hoc basis – e.g. Uber drivers) has recently presented problems for determining employment status.

The Taylor Review commissioned by the Government has been published and makes a number of recommendations designed to improve the working conditions of workers and individuals working in the gig economy.

The review makes a number of recommendations, including the following:

• Give those on zero-hour contracts the right to request guaranteed hours after 12 months;
• Improve the information to be given to agency workers and give them the right to request a direct contract with the end user after 12 months on an assignment;
• Rename workers who are not employees “dependent contractors”;
• Remove the requirement for workers to have a contract to perform work personally;
• Amend the law on the National Minimum Wage (NMW) to make it clear that gig-economy workers undertaking a form of output work will not have to be paid the NMW for each hour logged when there is no work available;
• Extend the right to a written statement of terms to workers as well as employees and require the statement to be issued by employers on day one of employment;
• Give a right to compensation if the employer has not provided a written statement to the employee;
• Consider increasing the NMW for hours that are not guaranteed by the employer;
• Reform Statutory Sick Pay to make it a proper employment right available to all workers;
• Require larger employers to report on their overall workforce structure – including requests from zero-hour workers for regular hours; and
• Give HMRC enforcement powers in respect of sick pay, holiday pay and minimum wage issues.

Some of the above recommendations would require a substantial amount of work to turn them into law.

Mr Trayhorn was employed by the Secretary of State as a gardener at a prison. The prison had a chapel, and employed full-time Chaplains. Mr Trayhorn was a Pentecostal Christian, and an ordained minister. As well as his role as a gardener, he volunteered in services in the prison chapel.

Mr Trayhorn was the subject of a complaint that he had made comments, during a service, that same-sex marriage was wrong. He was instructed not to preach at services in the prison chapel in the future, although he could lead singing. The next month, while he was leading the singing during a service he felt the need “to share … verses from the Bible and some thoughts about repentance from sin.”

These events lead to further complaints and the prison instructed him that he could no longer volunteer at services. In addition, an investigation into the events and their context concluded that he had made homophobic comments. He was invited to a disciplinary hearing, the possible outcome of which was stated to be up to a final written warning. Shortly after, he went on sick leave and later resigned.

Mr Trayhorn issued employment tribunal proceedings claiming direct and indirect discrimination, relying on the protected characteristic of religion or belief.

He claimed that the application of two policies (a conduct policy and an equality policy) put employees who were of the Christian faith at a particular disadvantage because they were more likely to quote or discuss parts of the Bible that some might find offensive, resulting in complaints and disciplinary action under the policies. He also claimed that he had personally suffered this disadvantage.

The tribunal rejected his complaints, finding that Mr Trayhorn did not produce any evidence in support of either group or individual disadvantage.  Even if he could have produced evidence the tribunal went on to state that, if it had been necessary to do so, it would have found that the prison’s policies:

• Pursued a legitimate aim of retaining order and protecting prisoners within the prison environment.

• Were a proportionate means of achieving the legitimate aims.

Mr Trayhorn appealed to the EAT which was dismissed.

I am a HR Manager, and have recently been informed that one of our employees unfortunately has cancer. What should I do to support our employee in the workplace?

People with cancer have legal protection under the Equality Act from the point of first diagnoses of their cancer. Consequently, employers must put in place “reasonable adjustments”.

Typical examples of reasonable adjustments may include some of the following:

• Allowing the employee time off for medical appointments without it having to be taken as holiday or sick leave;
• Moving the employees desk or office e.g. to a ground floor if they have difficulty using stairs;
• Offering free workplace counselling;
• Providing a private area for the employee to take medication or rest;
• Offering additional sickness leave depending on the employee’s treatment requirements;
• Creating additional flexibility in working hours;
• Changing a person’s duties to take away tasks that might be physically challenging;
• Allowing the employee to carry out some or all work from home;
• Allowing additional breaks to cope with tiredness;
• Assistance with a phased return to work..

An employer’s duty to make adjustments only extends to what is reasonable.  In certain circumstances the employer might be able to refuse to make an adjustment  because it just isn´t reasonable, based on cost, effectiveness and practicality.

Employers should also ensure that a record of communications regarding the employee’s health are well documented and always conducted in a confidential and sensitive way.

Finally, another important, yet commonly overlooked consideration, is the rights of carers.  Employees with at least 26 weeks service with their employer are eligible to make  flexible working requests.  A request to work flexibly could include, for example, a request to change working hours or a request to work from home.

We recently saw Lloyd’s of London banning a lunchtime pint during the working day but how far can an employer police what workers do when they are outside the office on an unpaid lunch break?

We set out below four issues to consider before enforcing a workplace drugs or alcohol policy or testing regime.

Why do you need an alcohol policy?

Unless your environment is safety-critical, it is important to be clear as to why any policy banning alcohol consumption will be necessary.

One of the key issues to consider is whether or not workplace testing is necessary. Deciding to implement testing to minimise reputational damage or as a deterrent could be challenged.

Ensure any requirement for alcohol testing is lawful

If you decide to implement alcohol testing, it’s important to make clear in your policy what the consequences of refusing or failing a test will be.

It’s also crucial to fully investigate any positive findings. In a recent case, a bus driver was awarded £84,000 compensation for unfair dismissal as his positive cocaine test was caused by handling contaminated bank notes from passengers.

Be consistent

Any decision to test or police alcohol consumption at work should be applied fairly, and not limited to staff based on certain characteristics which could lead to discrimination claims.

Rights to privacy

An employee could argue that a requirement to take a drug or alcohol test interferes with their Human Rights and is an invasion of privacy.

An employer must be able to demonstrate that the test was a proportionate way of meeting a legitimate business aim.

Find out more

MLR are running a series of workshops covering the introduction of an Alcohol and Drug testing strategy. Click here for more details https://www.eventbrite.co.uk/o/morgan-la-roche-12683057251

Two Managing Directors have been criticised in the lead up to the election after reportedly telling staff that their jobs were at risk if they failed to vote Conservative.

A Managing Director, wrote to staff on the day of the election stating “If by any chance Labour win, we’ll have to rethink a few things here at the company so if you value your job and want to hold onto your hard earned money vote Conservative”.

Similarly, on the day before votes were cast, a Managing Director of a bookmakers warned staff to vote Conservative because of their liberal attitude towards fixed-odds betting terminals. In a memo to employees, the MD warned employees of pledges by Labour and the Liberal Democrats to reduce the maximum stake in terminals from £100 to £2 due to concerns about the machines addictiveness. However, with the terminals accounting for more than half of their revenue, the MD warned employees that, if implemented, “business will be unable to continue and jobs will be lost”.

Click here to read more.

The Information Commissioner’s Office (ICO) has updated its subject access code of practice to reflect developments in recent Court of Appeal judgments.

Organisations should find this updated guidance helpful in responding to Subject Access Requests (SARs) in line with court and ICO expectations, particularly where requests are likely to involve extensive search efforts.

Data controllers (i.e. employers) may be glad to see that the co-operation of the requester will be factored into complaint handling by the ICO, which may assist with difficult requesters.

The main updates to the code concern obligations on data controllers in responding to SARs in relation to the “disproportionate effort” exception and SARs made for collateral purposes.

In relation to assessing disproportionate effort, the guidance notes that:

• Data controllers may take into account difficulties which occur throughout the process of complying with a SAR, including any difficulties in finding the requested information.
• The ICO expects data controllers to evaluate the particular circumstances of each request, balancing any difficulties involved in complying with the request against the benefits the information might bring to the data subject (i.e. employee).
• The burden of proof is on the data controller to demonstrate that all reasonable steps to comply with the SAR have been taken and that it would be disproportionate in all the circumstances to take further steps.
• The ICO considers it good practice to engage with the requester in open conversation about what information they require, which may avert unnecessary costs and effort in searching.
• If it receives a complaint about a SAR, the ICO may take into account a data controller’s readiness to engage with the requester and balance this against the benefit and importance of the information to them, in addition to the requester’s level of co-operation in handling the request.

The ICO also notes that whether or not a requester has “collateral” purposes (that is, other than seeking to check or correct their personal data) for making the SAR is not relevant.

Further changes to the code encourage data controllers to have well-designed and maintained information management systems to locate and extract data requested and to redact third party data.

Click here to read more.

In this case, the tribunal appears to take the view that, beyond the compulsory maternity leave period, men and women are in the same position with respect to caring for newborns. It commented that whether men take on a greater childcare role is a matter of choice between parents, but that choice should be made free of generalised assumptions that the mother is always best placed to undertake the role and should get the full pay because of that assumed exclusivity.

Mr Ali was employed by Capita Customer Management Ltd (Capita) following a TUPE transfer from Telefonica in 2013.

Transferring female Telefonica employees were entitled to maternity pay comprising 14 weeks’ basic pay followed by 25 weeks’ SMP. Transferring male Telefonica employees were entitled to two weeks’ paid ordinary paternity leave and up to 26 weeks’ additional paternity leave which “may or may not be paid”.

Mr Ali took two weeks’ paid leave immediately upon the birth of his daughter. His wife was diagnosed with postnatal depression and advised to return to work. Mr Ali accordingly wished to take further leave to look after his daughter. He asked Capita about his rights and they informed him that he was eligible for SPL, but that they only paid statutory ShPP. Mr Ali asserted that he should receive the same entitlements as a transferring Telefonica female employee taking maternity leave. When his grievance to this effect was rejected, he issued proceedings in the employment tribunal, alleging direct and indirect sex discrimination.

In summary, Mr Ali claimed that, given that it was open to parents to choose which one of them took leave to care for their child, it followed that it was direct sex discrimination to then choose to pay a woman more than a man in respect of that leave. He argued that he had been deterred from taking SPL because he had been told he would only be paid ShPP.

The tribunal upheld the direct sex discrimination claim.  It decided that:

• Mr Ali could compare himself with a hypothetical female colleague (one who took leave to care for her child after the two week compulsory maternity leave period).
• The denial of full pay amounted to less favourable treatment and the reason for this was Mr Ali’s sex.

The Information Commissioner (ICO) has warned businesses that there’s no time to delay in preparing for “the biggest change to data protection law for a generation” when the General Data Protection Regulations (GDPR) come into force in May 2018.

Among a number of initiatives to mark one year until GDPR compliance, the ICO has published an updated data protection self-assessment toolkit for SMEs which includes a new element to help organisations assess their progress in preparing for the GDPR and has updated its “12 steps to take now” guidance.

With potentially crippling fines for businesses its important to be aware of GDPR and to start preparing for its implementation.  Check out our events page for details of our Autumn GDPR workshops.

The Office for National Statistics (ONS) has announced that the number of union members is at an all-time low of 6.2 million. According to the figures, union membership decreased by 275,000 in 2016, with 66,000 members working in the private sector and 209,000 members working in the public sector.

Union membership has decreased for both men and women, with male membership declining by 2.8% and female membership declining by 5.4% over the same period. 

In a recent case the Employment Appeal Tribunal gave guidance on the test for discrimination arising from disability.

Background

Discrimination arising from disability occurs where both:

A treats B unfavourably because of something arising in consequence of B’s disability.

A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

Facts

The employee was a branch manager at Dransfields Engineering Services Ltd (DES). DES was not profitable and it was looking to make cost savings.

The employee developed cancer and was off work from October to December. In November, DES’s operations manager identified the possibility of restructuring the business in a way that would delete the employee’s post, saving the business up to £40,000 a year.

The employee was subsequently made redundant in April the following year after a period of consultation. The employee chose not to appeal, but subsequently brought claims for unfair dismissal, direct disability discrimination and discrimination arising from disability.

The tribunal dismissed his claims. With regard to his discrimination arising from disability claim, it accepted that there was a link between his disability-related absence and his dismissal, as his absence had highlighted to DES that the branch could function without anyone covering his role. However, it considered that this was not the same as saying that the employee was dismissed because of his sickness absence. 

The employee appealed to the Employment Appeal Tribbunal but the appeal was dismissed.

Comment

It is common for sickness absence to be the “something arising” as a consequence of an employee’s disability that leads to unfavourable treatment and a discrimination claim. The EAT’s decision appears to be an attempt to clarify that there is sometimes a difference between the factual circumstances surrounding an employee’s unfavourable treatment and the reason for it. This might be a difficult concept to grasp, particularly in light of the fact that the employer’s reasons, whether conscious or unconscious, for treating an employee unfavourably are irrelevant. However, the EAT makes it clear that each case will turn on its own particular facts. For this reason, the decision should not be relied on by employers considering making a disabled employee redundant in a similar situation and legal advice should be taken.

The government has published its response to the House of Commons Petitions Committee and Women and Equalities Committee joint report on dress codes in the workplace.

Background

In December 2015, Nicola Thorp arrived to work as a receptionist wearing flat shoes and was sent home without pay by her agency for failure to comply with its dress code, which required women to wear shoes with heels of between two and four inches. The story received widespread media coverage and Ms Thorp started a petition calling for the law to be changed to make it illegal to require women to wear high heels at work. More than 150,000 people signed the petition.

Government response

On 20 April 2017, the government published its response to the Committees’ report and recommendations. The introduction states that the government will work to ensure women are not held back in the workplace by outdated attitudes and practices. However, the government has rejected any recommendations that would require legislative change, favouring an approach based on more detailed guidance and awareness campaigns. This is because the government believes that existing law is sufficient to protect women who are subjected to discriminatory dress codes.

Comment

The government maintained that the law is clear, but poorly understood, and that there are some “bad employers” who deliberately flout it. But the reality is that there is a lack of recent case law on whether, and in what circumstances, a dress code constitutes sex discrimination. This uncertainty, together with the fact that few cases are brought challenging discriminatory dress codes, can be exploited by employers.