In May 2017, the Pensions Regulator issued a regulatory intervention report in relation to action taken against Johnson Shoes Company.

The Pensions Regulator has published details of action taken against a high street shoe retailer that resulted in the Regulator collecting over £40,000 in civil penalties for breaches of the employer auto-enrolment duties under the Pensions Act 2008.

After passing its staging date on 1 May 2014, Johnsons Shoes Company failed to provide the Regulator with a declaration of compliance by the statutory deadline. The Regulator initially issued a compliance notice. When Johnsons still failed to comply, the Regulator issued fixed, and then escalating, penalty notices. Although Johnsons eventually provided its declaration of compliance and paid the £400 fixed penalty in December 2015, it refused to pay the escalating penalty. This increased by £2,500 a day and by the time it stopped accruing had reached £40,000.

According to the Regulator, this is a reminder that, if an employer fails to co-operate fully with its enquiries and investigations, the Regulator will use all the powers at its disposal to ensure compliance with the statutory auto-enrolment duties. 

Ms Achbita worked for G4S who said that employees were not permitted to wear any religious, political or philosophical symbols while on duty. She was dismissed on account of her firm intention as a Muslim woman to wear a headscarf. She then brought a claim for wrongful dismissal on the grounds of direct discrimination relating to her religion.

The European Court of Justice concluded that the headscarf ban did not constitute direct discrimination. There was no evidence that Ms Achbita was treated differently compared to any other worker. The court concluded that:

• The fact that a female employee of Muslim faith is prohibited from wearing a headscarf at work does not constitute direct discrimination based on religion if that ban is founded on a general company rule prohibiting all visible political, philosophical and religious symbols in the workplace and not on stereotypes or prejudice against one or more particular religions or against religious beliefs in general. That ban may, however, constitute indirect discrimination.
• Such discrimination may be justified in order to enforce a policy of religious and ideological neutrality pursued by the employer if the ban is proportionate.

Such an outright ban was considered to be a legitimate aim, and whether the legitimate aim was proportionate and necessary was for a national court to determine.  In doing so, the following factors must be taken into account: the size and conspicuousness of the religious symbol, the nature of the employee’s activity and the context in which he/she has to perform that activity.

The Employment Appeal Tribunal (EAT) has ruled that procedural failings and inclusion in an internal appeal panel of an individual (who was junior to the decision-maker) does not necessarily result in an unfair dismissal.

The employee was a British woman of Nigerian origin and black African ethnicity and who was dismissed due to her failure to co-operate with, support or lead a change in the service in which she worked. She appealed but the decision was upheld by a panel consisting of three senior managers and an independent advisor.

She brought claims for unfair dismissal, wrongful dismissal, whistleblowing, race discrimination and victimisation. The tribunal found that there were flaws in the first stage of the disciplinary process. However, it found that these flaws were corrected by the appeal process and that the dismissal was fair. The claims were all dismissed by the tribunal and she appealed.

The EAT agreed.  In particular it noted that any flaws were rectified in the appeal process because:

• the appeal panel contained two other members who were senior, as well as an independent advisor,
• the failure to put all allegations to the employee in the first stage of the disciplinary process had been cured by the appeal; and
• the involvement of the panel member in a previous issue had been minor and had taken place 18 months previously.

It is a timely reminder for employers to consider appeals as a rehearing rather than a review and to rectify any mistakes in the earlier process.

Produced in association with “Stronger Together” (an initiative that supports organisations tackling modern slavery), the toolkit assists construction businesses in complying with the Modern Slavery Act 2015. Among other things, it:

• Covers all types of construction business, addressing issues from local labour to global supply chains.
• Gives specific examples of modern slavery that may exist in the construction industry, listing practical steps for identifying, deterring and responding to exploitation.
• Includes detailed checklists that a business can use to confirm that it is taking all necessary steps.

The toolkit is available as a free download.  Click here to read more http://stronger2gether.org/construction/

The government is set to publish guidance aimed at supporting working mothers with premature babies. The Department for Business, Energy and Industrial Strategy will work in association with the Advisory, Conciliation and Arbitration Service in drafting the guidance which will include advice on how employers can offer flexible working arrangements following a premature birth and how employers should deal with requests for additional time off from workers with premature babies.

Acas has said that the guidance will be available on their site soon, however a specific date has yet to be confirmed.

The Chairman of the Women and Equalities inquiry into the treatment of fathers in the workplace has said that fathers are hesitant to ask their managers for flexible hours as they believe that doing so will have a negative impact on their career prospects.

According to the evidence submitted to the inquiry panel, 44% of the surveyed fathers admitted to underplaying family-related responsibilities to ensure their career prospects were not harmed, with only 2.8% of the eligible 285,000 working fathers taking paternity leave under the current system.

Statistics released by the Office of National Statistics (ONS) show that the number of workers calling in sick is at its lowest level since records began nearly 25 years ago. According to the ONS, in 2016 a worker lost on average 4.3 days to sickness in comparison to the 7.2 days that a worker lost while taking sick leave in 1993.

The figures revealed that minor illness was the most common reason for workers taking sick leave, with 34 million days being lost to workers calling in sick due to minor illnesses such as coughs and sore throats.  In addition, the ONS suggested that it was the elderly, women, public health workers and those suffering from long-term health conditions that more frequently called in sick.

The report also considers sickness rates by region, suggesting that the lowest rates of sickness were in London at 1.4%, with Wales and Scotland having a higher rate of sick workers at 2.6% and 2.5% respectively.

Although this appears to be good news it would seem that with reduced absenteeism comes increased presenteeism i.e. people unfit but in work so that absences are not recorded.  This could mean you have people in work who are not performing to the standards and targets expected by them.  If this continues performance management procedures may need to be commenced.

On 6 March 2017, the e-petition on workplace dress codes and high heels was discussed in the House of Commons.  This follows the case in 2015 of Nicola Thorp who was sent home from work without pay for the day for wearing flat shoes instead of high heels.

It was advised that the government is taking, or has already taken, the following action:

• It is developing guidance for employers, working closely with Acas, the Equality and Human Rights Commission (EHRC) and the Health and Safety Executive.
• The EHRC has already taken action to raise awareness of discriminatory dress code practices on social media and is looking more generally at how to sharpen and improve its enforcement work.
• It expects certain sectors: hotels and tourism, travel and airlines, temporary agencies, corporate services, retail and hospitality, to review their dress codes, if they have not already done so.
• It is looking at how it can improve employees’ awareness and understanding of the legal protections available to them and how better to enforce them.
• In order to assist the government in spotting and responding to discriminatory dress code practices, the Equality Advisory Support Service has agreed to refer any reports of dress code issues to the EHRC to consider further action.

MLR are holding a series of free employment workshops.  The June workshops will look at Dress Codes and Workplace Appearance.  For more information and to book please click here https://www.eventbrite.co.uk/o/morgan-laroche-solicitors-12683057251

Recommendations from the Low Pay Commission have resulted in proposals to amend the rates of the national minimum wage.

The draft regulations set out the following hourly rates of national minimum wage, which will apply from 1 April 2017:

• The national living wage (workers aged 25 and over) is £7.50;
• The standard adult rate (workers aged between 21 and 24) is £7.05;
• The development rate (workers aged between 18 and 20) is £5.60;
• The young workers rate (workers aged under 18 but above the compulsory school age who are not apprentices) is £4.05;
• The rate for apprentices is £3.50; and
• the accommodation offset will be £6.40 each day. 

The chairman of the Commons work and pensions select committee Frank Field has told a Downing Street review of modern working practices that all workers should benefit from a new “national standard of fair work in the gig economy”.

Mr Field has commented that the proposed national minimum standard – which would automatically extend to all workers in the gig economy – would prevent employment tribunals and HM Revenue and Customs from having to determine whether people are genuinely self-employed.

Gig economy workers would instead be automatically entitled to certain rights including at least four weeks’ notice from an employer of an intention to change working patterns or withdraw work and an income equivalent to the national minimum wage (after accounting for costs such as car insurance).

This proposal comes after the recent “gig economy” decisions confirming that service providers are workers and not self-employed.

The Department of Business, Energy and Industrial Strategy (BEIS) has published a list of employers failing to pay the national minimum wage (NMW). The list names 359 employers who between them underpaid 15,513 workers to the tune of £994,685. The associated penalties amounted to approximately £800,000. 

The apprenticeship levy comes into force on 6 April 2017 and the Department for Education and the Skills Funding Agency have encouraged large employers to register in advance for the online apprenticeship service.

The service is the platform through which payment of the apprenticeship levy will be managed, and includes a facility to estimate the required levy. The service also aims to help employers find apprenticeship training and to post details about current apprenticeship and traineeship vacancies. 

Argos has been ordered to pay 37,000 former and current staff backpay amounting to £2.4m, after an HMRC investigation revealed its failure to pay staff the national minimum wage. According to the investigation, the online and catalogue retailer had scheduled staff briefings before workers began their shifts and had insisted on carrying out staff security checks outside of working hours.

HMRC has also fined the company £1.5m for the underpayment, however the amount is expected to decrease to £800,000 due to Argos’s pledge to pay the fine within the discounted 14-day period.

The Trade Union Act 2016 into force on 1 March 2017. The major changes include:

• Ballots: 50% turnout requirement.
• Ballots in “important public services”: additional 40% support requirement.
• Information requirements in relation to voting papers and information provided to members on the result of a ballot.
• Union supervision of picketing.
• Check-off in the public sector: the power to make Regulations to require unions to make a reasonable payment to employers for operation of a check-off system.