Potential increases in protection at work for pregnant employees

Potential increases in protection at work for pregnant employees
The key rights afforded to employees on maternity leave under the Maternity and Parental Leave ("MPL") Regulations 1999 include protection from dismissal, detriment or discrimination during both pregnancy and maternity leave. Employees who take time away from work to have children have the right to return to the same job following maternity leave a...
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Don’t get caught in the cold: Making arrangements in the workplace for adverse weather

Don’t get caught in the cold: Making arrangements in the workplace for adverse weather
Winter brings not only the chance of snow, but additional issues that a workplace may need to address. Adverse weather can result in both travel troubles and an increase in employee sickness which can all result in staff shortages and business disruption. Employers should revisit any current policies and procedures in place and remind staff of the ...
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Lloyd's of London Booze Ban - a Tipple Too Far?

Boozy-Lunches
Lloyd's of London has introduced a booze ban between the hours of 9 am and 5 pm. What are the possible repercussions for their employees if they decide to flout the new rules?

In a statement, the company confirmed that it had been considering the ban for some time - to bring into line the industry norms, and also in response to uncovering that half of grievance and disciplinary cases over the last two years were related to alcohol.

Other firms such as QBE have previously advised staff not to drink as opposed to an outright ban, leaving it to their managers to decide the most appropriate course of action.

Substance misuse and the law

Under the Health and Safety at Work Act 1974, all employers have a duty to ensure a safe place for work and safe systems of work for their staff.  However, it also looks upon substance misuse which includes both alcohol and drugs (whether prescribed over the counter or controlled substances). Managing substance misuse at a workplace is also likely to engage the Data Protection Act 1998, for example in screening test results for drugs and/or alcohol and HR Records of how the employer have dealt with the worker.  Any results of any alcohol or drug test would amount to sensitive personal data concerning the individuals physical or mental health or condition. 

It is important that an employer has a clear policy in respect of drugs and/or alcohol. The purpose of any such policy is to increase awareness of the effects of alcohol and drugs misuse and to ensure that all staff are aware of their responsibilities regarding alcohol or drugs misuse and related problems. Staff who have an alcohol or drug related problem should be encouraged to seek help at an early stage and staff who have an alcohol or drug related problem affecting the work, are dealt with sympathetically, fairly and consistently.

The employers' stance

It is up to an employer as to whether they take a zero alcohol tolerance approach to the workplace and work-related events, or to limit that to normal working day i.e. the approach taken by Lloyd’s of London.

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Does Your Company Dress Code Break The Law?

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Alex Pearce, employment law specialist explains how your business could be breaking the law in light of recent sexism claims.

Sexism in the workplace has been rife in recent news, with MPs demanding that the government look to enforce the law to ban sexist dress rules at work that are discriminatory against women.

The article, published by BBC News touched briefly upon the Equality Act 2010 and the legal standing that women have regarding discriminatory dress rules at work. We look more closely at this legislation to understand what is currently protected under its rule.

The Equality Act 2010 is concerned with discrimination and harassment in respect of the following protected characteristics:

  • Age;
  • Disability;
  • Gender Reassignment;
  • Marriage and civil partnerships;
  • Pregnancy
  • Maternity/paternity;
  • Race, religion or belief;
  • Sex;
  • Sexual orientation.

Under the Equality Act, it is unlawful for an employer to:

  • Discriminate directly by treating a job applicant or employee less favourably than others because of sex;
  • Discriminate indirectly by applying a provision, criteria or practice that disadvantages job applicants or employees of one sex without objective justification;
  • Subject a job applicant or employee to harassment relating to sex, sexual harassment or less favourably treatment because they reject or submit to harassment;
  • Victimise a job applicant or employee because they have made or intend to make a sex discrimination complaint under the Equality Act 2010 or because they have taken action or intend to take action in connection with the Act.

Discrimination in employment is generally prohibited, however, there are certain circumstances where an employer may have a defence in respect of an act of discrimination.  For example, there may be an occupational requirement; however, being sexy at work is not a job requirement. 

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Faulty Christmas present? Know your consumer rights

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Most people will have heard of the Sale of Goods Act but a new law introduced in 2015 strengthens consumer rights against businesses.

If you have bought or been given something for Christmas that does not work it is important to know what rights you have.

Most people will have heard of the Sale of Goods Act, which for years has given consumers a right of redress against businesses who sell faulty goods, but few will have heard about a new law introduced in 2015 which strengthens consumer rights.

Nadia Fabri is a litigation solicitor at Pinney Talfourd. Below she explains the increased protection now available to consumers in the UK who purchase goods, services or digital content following the introduction of the Consumer Rights Act 2015.

The Consumer Rights Act

The Consumer Rights Act is designed to ensure that if something you purchase is faulty, not as described, or not suitable for the purpose for which it was intended, you have the right to insist that the business you bought it from does something about it.

Knowing your rights can help you challenge a retailer or supplier who fails to deliver on their promises. This is something that you might need to do at any time of the year but which tends to happen more frequently after Christmas.

Sale of goods

When a business sells you goods you have the right to be provided with goods that are of satisfactory quality, fit for the purpose for which they are intended to be used and as described in any literature or promotional material. If the goods are not of satisfactory quality, fit for purpose or as described, you have the right to do a number of things depending on the circumstances.

You have a short-term right to reject the goods within 30 days of purchasing them if you wish to do so. This is unless the goods you have bought are perishable, such as food, in which case rejection must happen sooner.

Once 30 days have passed you have the right to request that faulty goods, or goods which are not fit for purpose, or do not match their description, are repaired or replaced. If an attempt at repair or a replacement still falls below the expected standard you then have a further right to reject the goods or to ask for a price reduction.

Supply of services

When a business provides you with a service you have the right to receive a service that is provided with reasonable skill and care, which is charged at the rate agreed and which is performed within the time agreed. Where rates of pay or the timeframe for performance have not been agreed you have the right to be charged a reasonable rate and for the service to be provided within a reasonable time.

Where a business has told you certain things about a service or the person who will be providing it, and those things influenced you in your decision to buy the service, you also have the right to hold the business to account if the things you have been told are not delivered on or turn out to be untrue. This is a new right created by the Consumer Rights Act which makes it easier for consumers to seek redress when promises made by businesses are not honoured.

If services are not provided with reasonable skill and care, or fail to deliver on promises made by the business, you have the right to request that the business performs the service again so that it is performed correctly. Depending on the circumstances you may also have the right to claim a price reduction of up to 100 per cent.

Digital content

When a business sells you digital content, such as computer software and computer games or music downloads and films, you have the right to content which is of satisfactory quality, fit for its purpose and as described. If this does not happen you have the right to request repair or replacement unless this would be impossible or too expensive, in which case you have the right to a price reduction. If the digital content supplied has caused damage, either to other digital content or a device that you own, you may also have the right to claim compensation if you can show that the supplier of the digital content failed to exercise reasonable skill and care.

The rights in respect of digital content are new; previously digital content was treated as a general sale of goods contract and consumers did not have such extensive rights of redress when things went wrong.

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How to reduce sickness absence at work

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Alex Pearce, employment law solicitor, advises what steps you can take to reduce sickness absence within your organisation.

The average British worker takes 4.4 days’ sickness absence every year and minor illnesses such as coughs and colds are often cited as the reason. However, more days are lost on average to more serious complaints such as back, neck and muscle pain.

High levels of sickness absence can lead to reduced production, low staff morale, increased costs and poor customer service. For small employers in particular, this can be very disruptive.

 

Sickness absence policy

 

You should have a sickness absence policy in place so that employees understand what is expected of them. It should set out your arrangements for sick pay and for reporting and managing sickness absence. It will help managers to deal with sickness absence fairly and consistently.

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Social media at the Christmas Party

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A drunken office Christmas party can create all sorts of gossip. Make sure your employees know the boundaries when sharing on social media.
The office Christmas party is a chance for everyone to let their hair down and have fun, but with alcohol often flowing freely and people’s judgement impaired the potential for employees to get carried away is clear.

In the days before social media a drunken kiss between Karen and Steve in accounts, or some seriously dodgy dance moves by the office manager, would have caused a few giggles and a bit of gossip at the time but would soon be forgotten. This is not the case now where we have at our fingertips the chance to share these embarrassing moments with the world with the tap of a few buttons.

Few employees realise the potential damage that can be done by their use of social media during and after the office party or that it could possibly result in them losing their jobs. Even fewer realise that if what they have posted or uploaded concerns a colleague they could end up getting their employer in trouble too.

A comprehensive social media policy which is communicated to all employees in advance of the office party, or indeed any other business-related function, can be a very effective way of highlighting the dangers social media can pose in this sort of situation. While the introduction of a social media policy now will come too late for those employees guilty of the misuse of social media at this year’s party it will hopefully prevent similar problems arising next year.

Employment law specialist Alex Pearce explains how social media policies work and highlights the key things that should be covered.

What is a social media policy?

A social media policy sets out the rules and expectations for your employees use of social media in the workplace as part of their work duties. It should also set out rules and expectations for the use of social media by your employees in their personal capacity where this might have an impact on your business. This includes at work-sponsored or funded social gatherings, such as the office Christmas party or the annual summer get-together.

Why is it important to have a social media policy?

Although there will be some cross-over with policies on electronic communications, the particular difficulties that inappropriate use of social media can create means it is important to have a separate social media policy. Recent examples of employees misusing social media to the detriment of their employer include an employee using his employer’s Twitter account to post his own unflattering views about Newcastle United supporters, an employee using Facebook to engage in derogatory ‘banter’ about managers in their employer’s business being drunk while working, an employee using Facebook to complain about their working conditions and an employee using Facebook to make threats to a colleague.

In the context of the office Christmas party there have been a number of incidents of employees uploading and sharing embarrassing or compromising photographs of colleagues on various social media platforms.

The potential for an employee’s use of social media to damage your brand and reputation is clear. However, there is also a risk that something posted on social media could expose you to potential liability. For instance, an employee who harasses a colleague on social media might put you in breach of your duty to provide a safe working environment. You might also be liable for an employee who uses social media to make discriminatory comments about a colleague or defamatory comments about a competitor. There is also the risk of damage being caused if an employee uses social media to post commercially sensitive or confidential information.

The speed and lack of control over the dissemination of information released on social media, and the difficulties in removing any posts made, presents a real risk to your business and is something that needs to be tightly controlled.

What should a social media policy include?

Your first step is to decide how much, if any, personal use of social media is allowed in the workplace or using work equipment. When it comes to using social media for work purposes, the policy should set out rules relating to appropriate use. These rules are aimed at protecting your brand and reputation, protecting confidential and commercially sensitive information, providing safeguards for checking any content before it goes live, avoiding breaches of copyright and avoiding any online bullying or harassment of colleagues.

It is also sensible to explain how the rules apply to your employees use of social media in their personal lives where this might impact on your business. For instance, although employees may regard their Facebook accounts as private, if they use their account to send insulting messages to a colleague or to complain about a supplier or customer, you may need to take action. Action may also be necessary if they use their account to post offensive or derogatory remarks about the behaviour or actions of colleagues at work-related events.

The policy should clarify if employee use of social media will be monitored and, if so, the purposes of the monitoring. This warning is needed to comply with data protection provisions and regulations on intercepting communications. The consequences for an employee who breaches the policy should also be set out. You may wish to state in your disciplinary policy that a serious breach of the social media policy may result in summary dismissal and link this to your equality policy.

Make sure you publicise your policy when it comes into effect and again at key times of the year, including Christmas. Keep your policy under review, particularly to ensure that it is still fit for purpose as technology develops. Finally, make sure the policy encourages effective use of social media for the benefit of your business because, used appropriately, social media can be a very effective promotional tool.
 
 

More information 

For advice on social media policies or any other employment law issues, please contact Alex Pearce in our Employment Law Team  on This email address is being protected from spambots. You need JavaScript enabled to view it. or call 01708 229444 for advice.
 
Pinney Talfourd is currently offering a free employment law review service to ensure your employment policies are legally sound and to advise on resolving any issues effectively. Take advantage of this offer and discuss your employment needs with one of our legal experts. Simply call 01277 211 755 or email This email address is being protected from spambots. You need JavaScript enabled to view it. to arrange a review.
 
This article was written by Alex Pearce our Employment Law Associate. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. The law may have changed since this article was published. This article is based on the law as at December 2016.
 
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What the Autumn Statement means for Employment

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Following Chancellor Philip Hammond’s Autumn statement Alex Pearce, an employment law specialist, looks at those measures relevant to employers and employees.

From April 2017 employees participating in salary sacrifice schemes, in which an employee gives up part of their salary for a non-cash benefit with both the company and worker paying less tax, will be abolished. Most medium and large organisation offer salary sacrifice schemes, which may include gym memberships and mobile phone deals. This is likely to affect lower paid workers the most. Child care, ultra-low emission cars and cycling to work will not be affected. There is some limited comfort with any arrangement in place before April 2017 being protected until April 2018.

Mr Hammond also announced changes to the income tax threshold, which will increase to £11,500 in April 2017. The government will increase the higher rate income tax threshold to £50,000 by the end of the Parliament.

The National Living Wage to rise will increase from £7.20 an hour to £7.50 from April 2017.

Employer and employer NI thresholds will be equalised at £157 per week from April 2017.

Employers are advised to contact their accountant to discuss how these changes will affect their business in advance of the changes. You are also advised to speak to your employment lawyer regarding updates to employment contracts to reflect any changes to salary sacrifice schemes.

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Just “horsing around”? Accident or negligence?

horse
A recent equine case highlights the difference between negligence and genuine accidents. Kim Huggins explains  

The much publicised case of Ashleigh Harris who has been awarded in excess of £3 million pounds following paralysis after being thrown from her boyfriends family horse ‘Polly Perks’, has caused debate and concern from riders, horse owners and yard owners alike over the possible flood gate effect following this litigation. 

An estimated £4billion pounds per year is spent on horses in Great Britain, with over four million people riding each year, as such, there will inevitably be some accidents.

There is, however, a great deal of confusion over the difference between a genuine accident, occurring through no fault of anyone and an accident arising from exposure by another person to an obvious risk of harm.

Burden of proof of the Claimant:

Ultimately, for any case (equine or not) to be successful, it is for the Claimant to prove, on the balance of probabilities, that;

  1. The Defendant was negligent
  2. The negligence caused the accident
  3. The accident resulted in injury and loss.

Each case turns on its own facts and it is therefore important to seek advice from a solicitor, whether you wish to bring a claim or defend a claim being made against you. 

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Discrimination Appeal fails for Christian bakers

gaycake
Alex Pearce, employment law specialist explains how far the Equality Act can protect against direct discrimination.

How far does The Equality Act protect against discrimination? In the recent ‘gay cake’ dispute in Northern Ireland, an Appeal Court upheld the decision that religious belief does not override the law against discrimination.

The Northern Ireland Court of Appeal has handed down its decision deciding on the question of whether religious beliefs overrides the law against discrimination in the supply of goods and services on grounds of sexual orientation.

The appeal was issued following the Court’s decision that Ashers Bakery, owned by Mr & Mrs McArthur cancelled an order to decorate a cake with a picture of Bert & Ernie and the caption 'Support Gay Marriage'. The McArthurs are devout Christians who believe that gay marriage is sinful. They had accepted they cancelled the order because of that belief.

The Northern Ireland Court of Appeal upheld the county court's decision. It held that the benefit from the slogan could only accrue to gay or bisexual people, and that the McArthurs would not have objected to decorating a cake saying 'Support Heterosexual Marriage'. The 'reason why' they cancelled the order was that the message related to gay marriage, and there was an exact correspondence between those of the particular sexual orientation and those whom the message supported the right to marry. This was a case of 'associative discrimination' with the gay and bisexual community, and amounted to direct discrimination.

The Court of Appeal held that the McArthurs' own right to free speech (i.e. objecting to gay marriage) was not being infringed.

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Disability claims can cost employers dearly

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Employment tribunal claims for disability discrimination can lead to huge financial penalties for employers. Read how to reduce the risk of claims.

It pays to be aware of your responsibilities to disabled persons under the Equality Act 2010. 

From determining whether it is discriminatory to ask a job applicant about their health and abilities, through to justifying a refusal to allow a disabled worker to opt out of shift working, to dismissing a disabled employee for high rates of disability related absence – consideration of the law relating to disability discrimination is needed at all stages of the employee life-cycle.

Alex Pearce, our employment law specialist outlines the key principles and ways to reduce the risk of disability claims.

What is a disability?

For the purposes of the Equality Act, a disability is a mental or physical impairment which has a substantial and long-term adverse impact on a person’s ability to carry out day-to-day activities. When assessing the adverse impact of any impairment, the effects of medication or physical aids should be disregarded.

There is no need for a person to be registered as disabled in order for them to be classed as having a disability. This is clear from case law, in which severe eczema, anxiety, chronic fatigue, and even obesity have all been found capable of amounting to a disability.

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Autumn 2016 employment law update

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Alex Pearce, employment law specialist outlines the main changes for October and the action you need to take as a result.

This is a round-up of the main employment law changes that have recently come into effect, including those taking place from Autumn 2016. 

National minimum wage rises

The national minimum wage is reviewed every year and traditionally any increases come into force in the autumn. The new hourly rates from 1 October 2016 are:

  • adult rate (21 to 24): £6.95;
  • youth development rate (18 to 20): £5.55;
  • young workers’ rate (16 and 17): £4.00; and
  • apprentice rate: £3.40.

It is understood that these rate changes will only apply for six months because the government has decided to align all further changes with the national living wage changes, which will take effect on 1 April each year.

This also means that the national living wage, payable to workers aged 25 and over, will not go up on 1 October 2016 as expected but will change on 1 April 2017. The national living wage is currently £7.20. The Low Pay Commission is set to recommend to the government later in the month the level of rates to apply from April 2017.

The accommodation offset limit has risen to £6.00 per day.

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Changes to new minimum wage rates

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Alex Pearce, employment law solicitor, reminds us that the new minimum wage rate comes into effect today.

From 1st October 2016 the new minimum wage rate increase comes into effect. The increases now mean that those aged over 21 years will benefit from a 4% pay rise:

21-24 year olds increases from £6.70 to £6.95
18-20 year olds increases from £5.30 to £5.55
16-17 year olds increases from £3.87 to £4.00
Apprentice rate increases from £3.30 to £3.40

(From 25 years you are entitled to the national living wage. This did not change on 1 October)


'New To work' guidance

ACAS has also published new guidance for young people who are starting work for the first time, setting out what their rights and obligations are. The guidance provides essential advice on legal issues that young people may face at work, including special employment rights for 16 and 17 year olds, information on apprenticeships and the national minimum wage.

Read more here 

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Tougher penalties for employing illegal immigrants

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Alex Pearce, our employment law solicitor, advises on how employers can avoid illegal working traps.

On 12 July 2016 changes to illegal working offences in the Immigration Act 2016 came into force, introducing tougher penalties for employers found to be flouting the rules.

As the government is keen to crack down on employers who turn a blind eye to employing illegal migrants, with fines of up to £20,000 per illegal worker and possible disqualification for directors, it is more vital than ever for employers to make sure employees have the correct right to work documents. The Home Office also names and shames employers found employing an illegal worker, so your business reputation could be on the line too.

Alex Pearce, employment law specialist at Pinney Talfourd in Essex, advises on how employers can avoid illegal working traps.

Checking workers’ status

Under current law, employers can only legally employ an individual who has permission to live and work in the UK.

To stay on the right side of the law, you will need to ensure that your existing procedures for checking that all new workers have the legal right to work in the UK are being complied with before they start work. Also, you should ask to see the documentation of existing workers and diarise reminders to check the paperwork again when their documents are near to expiry. As long as you make these checks, and take action where necessary, there will be nothing to fear.

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Best Personal Injury firm in Havering & Brentwood

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Legal 500 UK have ranked Pinney Talfourd as the leading personal injury firm in Havering and Brentwood, and one of the best firms in the whole of Essex.

We are delighted to announce that the Personal Injury Department at Pinney Talfourd has been ranked as one of the leading personal injury teams in Essex by Legal 500 UK 2016.

The Legal 500 rankings are carefully selected after rigorous assessment and provide a guide to the top legal providers across the UK. We are the only Legal 500 recognised personal injury firm in Havering and in Brentwood.

Stephen Green is a Partner and leads our personal injury team. Stephen is a specialist personal injury solicitor with many years of experience. His particular strengths include industrial disease claims and claims resulting major road traffic accidents. The 2016 edition of Legal 500 specifically notes one of his more complex cases: ‘Acted for a Claimant making a dependency claim arising from the death of her partner from mesothelioma due to occupational asbestos exposure. Claim settled at the top end of a six figure sum”.

Stephen has written a case study on this case (link to ‘when a personal injury settlement is final’) and has worked in association with Mesothelioma UK to set up a support group for sufferers of asbestos related disease in Essex.

Stephen is a member of the Law Society Personal Injury Panel and the Association of Personal Injury Lawyers (APIL). He is also an APIL Accredited Fellow. He is also a member of Solicitors Association of Higher Court Advocates.

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Employment Department is a leading Essex firm

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Legal 500 UK results have just been announced and Pinney Talfourd’s ‘team of specialists’ come highly recommended.
 

We are delighted to announce that our Employment Department has been recommended yet again by Legal 500 UK 2016.

The Legal 500 rankings are carefully selected after rigorous assessment and provide a guide to the top legal providers across the UK.

Legal 500 noted in the rankings that “Pinney Talfourd’s ‘team of specialists’ includes the efficient and knowledgeable’ Alex Pearce. It is noted for its ‘sound and practical advice.’”

Notable cases include ‘acting for a record label regarding the employment aspects on the sale of the share capital to an international group of music companies and a hive out agreement of the merchandising and live events.’

Alex Pearce is a member of the Employment Lawyers Association.

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Should voluntary overtime be included in holiday pay?

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Alex Pearce, employment law specialist at Pinney Talfourd in Essex advises on whether you should include voluntary overtime in your holiday pay calculations.

The issue of how to calculate holiday pay has rarely been out of the news in the last few years with a steady stream of case law on the topic. We turn our attention to an issue on which there has been little guidance: voluntary overtime.

Alex Pearce, employment law specialist at Pinney Talfourd in Essex advises on whether you should include voluntary overtime in your holiday pay calculations.

Compulsory overtime

In Bear Scotland Ltd v Fulton [2014] the Employment Appeals Tribunal (EAT) decided that employers have to take into account compulsory non-guaranteed overtime payments when calculating holiday pay in respect of the four weeks’ annual leave given by the Working Time Regulations 1998 (WTR). So, if you do not guarantee overtime but your employee must work it if required, then you will need to include payments for this in their holiday pay.

But the Bear Scotland case did not give us any answers on what to do when it comes to voluntary overtime. Voluntary overtime is work that you do not have to offer and which your employee can turn down if they do not wish to work it.

Voluntary overtime

A new case, albeit only an employment tribunal case, which is not actually binding on other tribunals or the EAT, has given some guidance on whether voluntary overtime should be included when you work out holiday pay. Pending any appeal there may be against this decision, it does give an indication of how tribunals are likely to approach the issue. In White and others v Dudley Metropolitan Borough Council [2016], the 56 claimants worked as skilled tradespeople, maintaining the council’s stock of social housing. They were invited to work on a Saturday on a voluntary basis and they also agreed to be on a standby rota, every four weeks, for emergency call-outs and repairs. Many of them gained another £725 every month for the week they were on standby.

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Employment practices at Sports Direct

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Employment Solicitor Alex Pearce looks at the recent report on employment practices at Sports Direct.

On 22 July 2016, the Business, Innovation and Skills Committee published its report on the employment practices at Sports Direct.

Sports Direct has over 400 stores staffed by employees, on zero-hour contracts and is the largest sporting retailer in the UK. The Company’s headquarters and warehouse is situated in Shirebrook, Derbyshire. There it has 200 permanent employees and over 3,000 agency workers.

The Committee heard a series of accounts of worker mistreatment, including staff being penalised for matters such as taking a short break to drink water and for taking time off work when ill – the ‘six strikes and you’re out’ policy.

On 22 July 2016, the Business, Innovation and Skills Committee published a highly critical report on its employment practices. In particular, the Committee considered that:

"The way the business model at Sports Direct is operated, in both the warehouse at Shirebrook and in the shops across the country, involves treating workers as commodities rather than as human beings with rights, responsibilities and aspirations. The low-cost products for customers, and the profits generated for the shareholders, come at the cost of maintaining contractual terms and working conditions which fall way below acceptable standards in a modern, civilised economy. There is a risk that this model - which has proved successful for Mr Ashley - will become the norm. We will be considering the full implications of this business model in the context of our broader inquiry into the labour market." (Paragraph 34.)

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Brexit - the implications for employers

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The historic outcome of the Brexit referendum has left many questions on the implications of this decision for workers and employers within the EU.
 
Currently, EU citizens can live and work in the UK without the need for work permits or visas. Although Brexit might eventually mean an end or restrictions on this free movement of people, any changes are yet to be decided. In the meantime, both employers and employees will be looking for reassurance for what it means for them.

Alex Pearce, employment law specialist at Pinney Talfourd in Essex advises employers on what to expect and what you need to do in the immediate future.

No immediate change

Among all the uncertainty, one thing is certain; there is no immediate effect on employment law or the right of EU nationals to work in the UK. What is more, it is unlikely that we will see any changes to employment law or the free movement of workers as a result of the referendum for some time. The formal process for leaving the EU only starts once the UK government gives two years’ notice. Our legal framework will remain in place until at least the end of those two years.

How significant is EU employment law in the UK?

Much of our employment law is based on EU law. The UK is currently required to implement EU law. The Working Time Regulations 1998 and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) are two significant examples of regulations based on EU law.

However, this is by no means the full picture. There are some significant areas of UK employment law that have nothing to do with EU law. The law on unfair dismissal is probably the most important. The right to request flexible working and the national minimum wage are further examples. What is more, the UK created employment protection in areas such as race discrimination, long before the relevant EU directive came into effect. Finally, the UK sometimes builds on the minimum standards in EU directives to give more generous rights. This is known as gold-plating. For example, EU law only requires employers to give workers 20 days’ paid holiday but UK regulations increased that entitlement to 28 days.

Possible changes to UK employment law

No one can say with any certainty what the future impact of Brexit will be on UK employment law. It all depends on the terms of the trade agreements that the UK negotiates with the EU or its individual member states. One possible outcome is that the UK would still have to apply most EU employment laws as a condition of accessing the single market. This is the case for non-EU countries such as Norway.

At the other end of the spectrum, the UK may be released from applying EU law. In this scenario, the consensus is that a wholesale repeal of all UK employment law based on EU law is very unlikely. Commentators broadly agree that likely targets for changes include the regulations on agency workers and elements of the working time regulations and TUPE. However, this will depend very much on the politics of future governments.

Employing EU nationals

In the short term, EU nationals from outside the UK can still continue to work in the UK. This right of free movement of people remains until the end of the formal withdrawal process.

In the longer term the situation is unclear. EU nationals who have exercised the right to work in the UK before the UK’s withdrawal may point to a precedent in international law. This is the principle of acquired rights; having exercised rights under an EU treaty, an individual may continue to benefit from those rights even after the treaty has ended. This potential protection for the existing workforce could encourage an increase in immigration from the EU before the UK leaves the EU.

After the UK’s withdrawal, the terms of any future trade agreements will determine whether the right of free movement will exist at all or if it will be restricted. Non-EU countries, such as Norway and Switzerland, have to allow free movement of EU nationals in order to access the single market. However, countries such as Chile are not required to honour free movement under their trade agreements with the EU.

Next steps

Employees may be anxious about their rights, particularly those employees whose right to work here depends on the UK’s membership of the EU. Employers should consider issuing a statement to reassure employees and set up meetings to deal with any concerns.

Employers who are heavily reliant on non-UK EU nationals may wish to audit the basis of their employees’ rights to work in the UK. This could be followed up with a review of recruitment practices. Many employers are concerned that the impact of Brexit on the UK economy will trigger a downturn in business. You may want to consider any staffing efficiencies or increasing flexibility in your workforce to ensure that your business is as resilient as possible in these uncertain times.

We can help with writing staff communications and advise on the extent to which you can offer reassurance to your staff.


More information 

For advice on avoiding any discriminatory pitfalls in changing your recruitment practices, as well as advice on steps to increase your workforce flexibility, such as restructuring, redundancies and changing terms and conditions of employment or any other employment law issues, contact Alex Pearce in our Employment Law Department on This email address is being protected from spambots. You need JavaScript enabled to view it. or call 01708 229444.

This article was written by Alex Pearce our Employment Law Specialist at Pinney Talfourd Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law at July 2016. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
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Have you been accused of misconduct?

AlexP
Conduct is a potentially fair reason for dismissal. Alex Pearce, employment law specialist looks at what you need to do if you are facing disciplinary proceedings for misconduct.

If an employer has accused you of misconduct, you should get independent legal advice to ensure your employment rights are protected. 

Misconduct is unacceptable or improper behaviour. Cases of minor misconduct, such as lateness, are usually dealt with informally. Where that does not work or the matter is more serious, your employer will normally take formal action. Gross misconduct is the most serious type of conduct and includes theft, fraud, fighting, drunkenness, harassment, serious negligence and serious breach of health and safety rules. It can result in the termination of your employment without notice.

 

Relevant documents

Your employer has to give you details of its disciplinary rules and procedure for disciplinary decisions and appeals. This may be set out in your contract of employment or the staff handbook and you should ensure that you have a copy. Your employer should follow its own procedure when dealing with any allegation of misconduct. You and your employer should also follow the Acas Code of Practice on Disciplinary and Grievance Procedures, which is available on the Acas website (www.acas.org.uk). If either of you unreasonably fails to follow the code, and you make a claim, the employment tribunal can reduce or increase any compensation you are awarded by up to 25 per cent, depending on who was at fault.

 

What to do if you are suspended

Your employer may decide it is appropriate to suspend you while it carries out an investigation. If you are suspended, you should continue to receive full pay and the period of suspension should be as short as possible. If you are suspended, you should not attend work or contact any of your colleagues, clients or customers. If you need to get in touch with a colleague or obtain documents from your workplace to help you prepare for a disciplinary hearing, you should contact your employer.

 

The procedure your employer should follow

It is important for your employer to undertake a reasonable investigation before starting formal disciplinary action. It should establish the facts surrounding the allegations, which may involve interviewing and taking statements from you and other individuals and reviewing relevant documents and records. If your employer decides you have a case to answer, it should invite you to a disciplinary hearing, setting out details of the date, time and place of the hearing and giving you enough time to prepare. The letter should include details of the allegations against you, and your employer should give you copies of the documents it intends to rely on. The letter should also tell you about the possible outcomes.

The disciplinary hearing should be conducted by a senior manager, and a human resources manager may also attend to advise on procedure. Your employer will go through the evidence that came out of the investigation, give you an opportunity to respond and present your version of events, and establish whether any further investigations need to be carried out before a decision can be reached. You are allowed to call witnesses to give evidence on your behalf. If your employer calls witnesses, you are entitled to question them.

Following the hearing, your employer will consider whether the allegations have been upheld and, if so, the appropriate action. They will write to inform you of the outcome and, if you disagree, you will have the right to appeal. Any appeal should be dealt with by a more senior manager.

 

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