In a recent High Court case, a former employee claimed that his employer should be liable for his loss of career earnings on the basis that they owed him either a duty of care to protect employees from criminal convictions or an implied duty to indemnify him for his losses.  

The employee had been working as an investment banker in Romania when he was arrested and convicted as a result of a transaction he was working on. The employee was then made redundant and was unable to secure further employment in his industry because of his Romanian criminal conviction.

Due to his failure to secure further employment, the employee brought a claim that his employer had a duty of care to (1) ensure their employees are not exposed to the risk of criminal conviction whilst pursuing their duties, (2) reasonably protect employees from subsequent financial losses and (3) indemnify employees for any losses they suffer as a result.

The High Court dismissed the employee’s claim, deciding that whilst there is (in theory) a duty on the employer to reasonably care for their employee’s safety and protect them from resulting financial losses, this will depend on the specific facts of the case, how foreseeable the harm is and whether it is fair, just and reasonable to impose such a duty. However, the employer in this case had not breached this duty as Romania was not a high-risk country in which to do business at the time of the employee’s conviction.

As for the employee’s claim on the implied duty to indemnify, the High Court held that such a duty only applies to employees’ losses that are suffered in the course or as a consequence of their employment. As such, this duty did not extend to loss of career earnings, but the High Court did comment the duty may be widened by an implied indemnity of fact in future cases.

Minimum wage increases 2022

The increased National Minimum Wage (NMW) and National Living Wage (NLW) rates that will apply from April 2022 have now been published, as follows:

• NLW (23+) to increase from £8.91 to £9.50
• NMW (21-22) to increase from £8.36 to £9.18
• NMW (18-20) to increase £6.56 to £6.83
• NMW (16-17) to increase £4.62 to £4.81
• Apprenticeship Wage to increase from £4.30 to £4.81

What happens if an employer is in breach of the NMW regulations?

Employers will need to ensure that they are up to date with the increased rates prior to 1 April 2022, as a failure to pay the prescribed rates is against the law and could land an employer in trouble.

If HMRC is informed or discovers that an employer has not paid at least the minimum wage, they can send a notice of arrears plus issue a penalty for not paying the correct rate of pay to the employer. In addition, HMRC can also take employers to civil court and the maximum fine for non-payment is £20,000 per worker. Employers who fail to pay can be named publicly and banned from being a company director for up to 15 years.

In addition to the enforcement action that can be taken by HMRC, employers can also be taken to an employment tribunal or a civil court if an employee or worker feels they have not been receiving the NMW or NLW, if they’ve been dismissed or experienced unfair treatment because of their right to the NMW or NLW or if they’ve been discriminated against because their age means they are entitled to a higher minimum wage rate.

Traps and pitfalls to avoid

Employers must ensure they understand the rules regarding the minimum rates, as there are a certain number of issues that can catch employers out, such as:

1. Including elements of pay that don’t count towards minimum wage, such as tips.

2. Charging a worker more than the stated offset rate for living accommodation (currently £8.36 per day and increasing to £8.70 per day from 1 April 2022).

3. Making wage deductions that are deemed to be for the employer’s “own use or benefit”, such as a Christmas club saving scheme.

4. Making wage deductions for items or expenses that are connected with the job, such as safety clothing, uniforms, tools etc.

5. Not paying for all the time worked such as time spent travelling, training or downtime at the employer’s disposal.

Apprentices

Furthermore, employers must remember that apprentices are subject to their own special rate of pay, and they must be mindful to not pay the apprentice rate to somebody who isn’t actually an apprentice (recognised apprentices must have an apprenticeship contract and undergo an element of structured training) and they must ensure they are not continuing to pay the apprentice rate for too long. The apprentice rate only applies to apprentices who are under the age of 19, or if aged 19 or over within the first year of their apprenticeship.

According to a new report by the Health and Safety Executive, 850,000 workers suffered from a new case of a work-related illness in 2020/2021 and just over half reported this was caused by stress, anxiety or depression.

Before the pandemic, the main causes for these symptoms were based on factors such as workload and a lack of support. The effects of the pandemic are now considered to be a contributory factor.

The report found that women aged 25 to 34 are most likely to suffer with work-related stress, anxiety and depression, and the rates are higher than average in the public administration and defence, health and social care and education sectors.

In a recent case, a claimant was dismissed on the grounds of his misconduct because he persistently made multiple informal grievances, he was unwilling to progress the grievances formally or drop them, and he refused to attend meetings including the grievance meetings.

The EAT recently upheld the tribunal’s decision that the claimant was fairly dismissed without any formal warnings. The employer had carried out a reasonable investigation and disciplinary procedure, and it was within the band of reasonable responses for the employer to treat the claimant’s conduct as a sufficient reason for dismissal.

The fairness of the dismissal for misconduct was dependent on whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal. The fairness of the dismissal did not depend on the employer labelling the conduct as “gross misconduct”.

The Supreme Court previously decided that the Christian owners of a bakery had not directly discriminated against the claimant on the grounds of religious belief, political opinion or sexual orientation by refusing to provide him with a cake that had the words “Support Gay Marriage” on it.

The claimant applied to the European Court of Human Rights (ECtHR) complaining that the Supreme Court’s decision interfered with his rights under the European Convention of Human Rights (ECHR). Namely, these included the right to respect for private life, the right to freedom of thought, conscience and religion, and the right to freedom of expression. These rights were affected in their own right and in conjunction with the right to prohibition of discrimination.

However, the ECtHR has declared the claimant’s application was inadmissible because the claimant relied on domestic UK laws, which aim to protect consumers against discrimination when they are accessing goods and services. The claimant did not raise the argument relating to his ECHR rights in the domestic UK proceedings, and failing to do so meant the domestic courts could not balance the claimant’s ECHR rights against those of the bakery owners, who had invoked their right to freedom of thought, conscience and religion, and their right to freedom of expression under the ECHR.

As part of its inquiry into menopause in the workplace, in January 2022 the Women and Equalities Select Committee listened to evidence from employment lawyers. One of the discussions that took place was whether the menopause should become a legally protected characteristic for discrimination claims.

The inquiry found that some women reported they face discrimination if they are (or are perceived to be) going through the menopause, regardless of whether they are experiencing symptoms. For example, some women stated they have received inappropriate comments, or they have not been chosen for a promotion. However, for many women who feel they have been discriminated against because they are going through the menopause, currently one of their only options is to rely on rules relating to disability discrimination or sex discrimination.

The Committee also heard it would be beneficial to release increased guidance and awareness of the issues, to ensure employees and employers are clear on the obligations of their business when employees are going through the menopause.

A claimant who was a 40% shareholder and co-director of a company, and who received payments described as a “salary”, left the business following a dispute and subsequently brought various tribunal claims. A preliminary issue arose as to the claimant’s employment status.

The employment judge found that apart from an expectation that the claimant would generate enough work to keep the company going, there was no mutuality of obligation. The claimant set his own hours and holidays, and was free to do other work. The judge also found the claimant was not required to provide a personal service, as the claimant could provide a substitute to carry out his work, even though this was never done in practice. The claimant appealed against the tribunal’s decision, arguing that since he worked for a salary, and the arrangement was not a sham, his status must be that of an employee or a worker.

However, the EAT rejected the claimant’s arguments on three grounds. Firstly, just because a person who is a director and shareholder works for a company and receives payments, this does not automatically give them a certain status, such as worker, employee or self-employed. Secondly, the judge was entitled to find the claimant had a right to substitution, even though the substitution never arose in practice. Thirdly, whilst it would be incorrect to specify that a director and shareholder cannot be an employee, the claimant’s level of control over the company, and the fact he shared with his brother the risk as to the company’s success, was not enough to significantly influence the judge’s decision. Therefore, it was held the claimant was not an employee or a worker of the company.

In a recent tribunal claim, an employer withdrew an employee’s secondment offer to Montenegro, following medical advice that it would jeopardise the employee’s safety. The employee needed to receive medical clearance before taking the secondment offer as the employee suffered two serious health complications in the previous month. Healix, who carried out the employee’s health assessment, together with the employee’s consultant both considered the employee was at a high-risk of further ill-health episodes. Therefore, it was not advised that the employee should travel to Montenegro.

Occupational health was not aware of the employee’s full medical history so assessed her as being fit to travel if recommendations were followed, including arranging medical insurance. However, Healix disagreed because even if adjustments were made, the adjustments would not have resolved a potential emergency, especially as the employee acknowledged in cross-examination that she would potentially be at risk of an emergency medical episode whilst in Montenegro.

The tribunal held the employer did not discriminate for a reason related to the employee’s disability, and the employer did not fail to make reasonable adjustments. The EAT upheld the tribunal’s decision, concluding that withdrawing the secondment offer was a proportionate means of achieving the legitimate aim of protecting the health and safety of secondees who work abroad. In determining reasonableness, it was held an employer was not required to adopt adjustments that could alleviate an employee’s disadvantage. The tribunal was entitled to find the adjustments proposed by occupational health would not have sufficiently protected the employee’s health, safety and well-being in Montenegro.

According to a recent survey by Virgin Money, 60% of working parents would leave their current jobs if it meant they would be offered better parental leave benefits in another organisation. 58% of employees expressed that they were worried about missing out on career opportunities or promotions while on maternity leave, and 52% were worried about losing their job during maternity leave. The majority of those surveyed confirmed that they considered parental leave policies to be important factor when considering a new job.

The law firm, Baker McKenzie, has introduced new policies in a move to support working families. For example, paid paternity leave has been extended from 2 weeks to 12 weeks and the leave can be taken at any point in the year after a child’s birth or adoption. Baker McKenzie has also introduced a pregnancy loss policy to support staff who may require support following a miscarriage, still-birth, neo-natal loss, unsuccessful fertility treatment or abortion. Staff will be given up to 5 days of fully paid leave, but will be able to request further time off if they feel they need it.

Baker McKenzie will create a parenting area in their offices to help new mothers, pregnant employees and parents in their return to work. Parents attending the office on their keeping-in-touch days will have an area to change babies, bottle-feed or breastfeed. The space will also enable pregnant employees to rest during the working day.

According to a recent survey conducted by the trade union ‘Prospect’, 32% of employers monitor their employees who work from home, and this figure rises to 48% in relation to the monitoring of employees aged 18 to 34. The poll also showed that since April 2021, the number of employers who use cameras to monitor their employees working from home has increased from 5% to 13%.

Prospect are calling for stronger regulations to be put in place to regulate employers who use technology to monitor their employees. Prospect has also stated it should be illegal for employers to monitor their employees through webcams, except in situations where there may be calls and meetings.

The Information Commissioner’s Office (ICO) recently held a consultation to seek views on introducing new guidance on data protection, which will replace the current Employment Practices Code. The ICO advises that if employers want to use technology to monitor the work of their staff members, they should ensure their staff are firstly aware of the monitoring and are clearly informed of the reasons for this happening. The ICO also encourages employers to consider if there are less intrusive alternatives to electronic monitoring, such as catch-up calls or email correspondence.

According to a recent survey by the Fawcett Society, 47% of working adults are asked about their previous salaries when applying for a new job. 61% of female working adults stated this affects their confidence to negotiate better pay.

The Fawcett Society are encouraging employers to avoid asking questions relating to candidate’s salary history as it could contribute to pay inequality, for example by keeping women on lower wages based on their previous salary.

Only 25% of people surveyed thought their salary should be based on their previous rate of pay. But 58% of women and 54% of men think that by being asking about their previous salaries, they will be offered a reduced salary.

In a recent court case, an employee played a practical joke on the claimant, who was a contractor at work, by bringing explosive pellets into work and hitting them with a hammer close to the claimant’s ear. When the pellets exploded, they caused the claimant to suffer a perforated eardrum, hearing loss and tinnitus. The claimant claimed damages from the employer for personal injury, arguing the employer was vicariously liable for the employee’s actions, and that the employer was directly liable for breaching its own duty of care. The County Court and the High Court dismissed the claimant’s case, stating that the employer was not negligent or vicariously liable, so the claimant appealed to the Court of Appeal.

The Court of Appeal has upheld the County Court’s decision (that the employer was not negligent nor vicariously liable). This decision was reached on the basis that there was not a close enough connection between the act causing the injury and the employee’s work to make it fair, just and reasonable to make the employer vicariously liable. The explosive pellet was one of the main causes of the claimant’s injuries, but the pellet was not the employer’s equipment as the employee had brought it into work.

In terms of the employer’s breach of duty, the court stated that there was not a reasonably foreseeable risk of injury arising from the practical joke. But even if there was such a risk, it would be unreasonable and unrealistic to expect an employer to put measures in place to prevent employees from engaging in horseplay. The employer expected employees to carry out their tasks using reasonable skill and care, and that included to refrain from horseplay.