Act, don’t discriminate: how UK employers can navigate positive action

Act, don’t discriminate: how UK employers can navigate positive action
Cheshire Constabulary have a new recruit -- hired after an employment tribunal. The police force was ruled to be discriminatory after rejecting the white, straight male during a diversity drive. How can employers avoid the same fate when taking positive action? We look at the difference between positive action and positive discrimination, and pinpo...
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Time to take care of business - April Employment Law Update

Time to take care of business - April Employment Law Update
April is a busy month for businesses and employment lawyers alike. A number of employment law changes have come into effect in April that HR Directors and employers need be aware of. Employment Solicitor Alexander Pearce provides a summary of these updates:   Employment Tribunal Compensation Limit Change The limit on the amount of compens...
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The perils of the Christmas party season for employers

xmas-party
​ In the lead up to December and the party season, it can be easy to get carried away with the merry festivities. At this time of year, employers should take a moment to consider the potential employment law issues and go over existing company policies. Where ever the office Christmas party takes place, the location should always be considered an e...
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Dismissing an Employee for Blowing the Whistle Could Cost You Millions

Dismissing an Employee for Blowing the Whistle Could Cost You Millions
The law provides protection against victimisation or dismissal for employees or workers reporting wrongdoing by their employers or third parties. It is unlawful for an employer to subject an employee to a detriment such as disciplinary action, loss of work or pay, or damage to career prospects on the ground that they have 'blown the whistle', or in...
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What can you do if an employee owes you money?

What can You do if an Employee Owes You Money?
An employee can owe their employer money for a number of reasons – for example, if an employee has taken more holiday than they are entitled to, or if they have borrowed money from their employer. Even in cases where an employee has damaged property or stock by carelessness, under the Employment Rights Act 1996 , an employer cannot recover the cost...
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Employment Law - Top Tips for Employers

Employment Law - Top Tips for Employers
​ Employing people seems like a fairly simple process - hire them, then set them to work…but is it really that easy? We round up our top tips for employers when it comes to employment law and legal practices in the workplace. Many employers find the list of employment rights and legal responsibilities intimidating. But conforming to employer's lega...
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Employment Law - Top Tips for Employers - Part Two

Copy of Employment Law - Top Tips for Employers - Part Two
​ Managing a team within the workplace can be a daunting experience - we round up some more of our top tips for employers around appeals, pregnancy and office banter. Many employers are apprehensive when it comes to more 'delicate' issues within the workplace; what exactly should you do when a female member of staff informs you that they're pregnan...
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How sure do you have to be to dismiss for gross misconduct?

How Sure do You have to be to Dismiss for Gross Misconduct?
​ Gross misconduct is defined as behaviour from an employee which is so considered to be so bad that it destroys the relationship between employee and employer. Employers must be aware of the law before heading into this territory – read our FAQs relating to gross misconduct for employers. Where an employee has more than two years' service, they ha...
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Discrimination, Harassment and Victimisation - The Basics

Discrimination, Harassment and Victimisation - The Basics
​ Let's be honest – discrimination, bullying, victimisation and harassment can be portrayed as meaning the same thing – especially in a workplace environment. So what's the difference between each definition? We run through the basics of the legal meanings of discrimination, harassment and victimisation. In the Equality Act 2010, victimisation and ...
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The World Cup at Work - What's Your Game Plan?

The World Cup at Work - What's Your Game Plan?
With the World Cup in Russia in full swing, how can employers manage any disruption and provide flexibility to staff wanting to follow the tournament? Alex Pearce explains. The World Cup is the most prestigious association football tournament in the world, as well as the most widely viewed and followed sporting event in the world, exceeding the Oly...
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Injury to Feelings and the Working Time Regulations

Working-Time-Regulations
The Court of Appeal has held that compensation for injury to feelings is not available for failing to provide rest breaks under the Working Time Regulations 1998 (‘WTR’).

Pursuant to Regulation 12 (1) of the WTR, workers are entitled to unpaid rest breaks of 20 minutes when working for more than 6 hours per day.

Whilst workers may be required to remain at work or in close proximity to their workplace while taking a rest break, they should not be required to perform any duties.

Where an employer has infringed a worker’s entitlements under the WTR, a worker is able to bring a claim to the Employment Tribunal.  An Employment Tribunal must make a declaration that the worker’s entitlements have been infringed and may make an award of compensation where the complaint is well-founded.

The amount of compensation is such as the Tribunal considers just and equitable in all the circumstances.

Injury to feelings awards have historically been made under discrimination legislation and have also been available in whistleblowing detriment claims. Conversely, compensation for unfair dismissal and breach of contract does not include compensation for injury to feelings.

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Employment Law Round-Up - New Rates and Limits

National-Living-Wage
It’s that time of year again in which employers have to familiarise themselves with the increases in compensation limits, statutory payments and the National Minimum Wage.

The new rates for 2018/2019 are as follows:

 

Statutory payments for time off work:

Maternity/Adoption pay prescribed rate (max)                                                                                        

£145.18

Paternity pay (max)

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The Unspoken Cause of Workplace Absences

Mental-Health-1
There are many reasons why an employee may be required to take time off work, but did you know that mental health conditions are now the most common work-related illness?

Workplace absences can range from childcare responsibilities to work-related illness, however, according to a recent announcement by the Health and Safety Executive, the number of UK workers that suffered from mental health conditions which included work-related stress, depression and anxiety have risen by nearly 10% to 526,000 in the year 2016/2017.

What does this mean for businesses and the UK economy as a whole?

The Health and Safety Executive estimates that mental health conditions account for an annual average of 12.5 million working days lost; a cost to the UK economy of between £33-£42 billion.

It is estimated that 1 in 4 people in the UK will experience a mental health problem each year, meaning that, in a workforce of 40 people, 10 individuals may experience a mental health condition.

In England, 1 in 6 people report experiencing a common mental health condition such as anxiety and depression in any given week.

According to the statistics gathered by Mind, 7.8 people in 100 will suffer mixed anxiety and depression, whilst 5.9 in 100 people will suffer from a generalised anxiety disorder, and 3.3 in every 100 people will have to deal with an overall depressed state of being and mind.

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Pay Inequality - a Form of Bullying in the Workplace?

Pay-Inequality
The BBC has been back in the news this month following the damaging revelations regarding the inequality of pay between male and female presenters. 

It is alleged that the BBC forced presenters to form companies and treat themselves as freelancers, resulting in them being left with very little employment protection involving matters such as holiday or sick pay.

Kirsty Lang, presenter of the Art Programme Front Row since 2004, gave evidence to the Commons Cultural Committee in which she stated that all her worst fears came true when she was moved onto a new contract.

She stated that she was unable to take bereavement leave; “In fact, I went back and did my first show even before [her step-daughter’s] funeral, because I had to get some money in”.

She went on to state that “...and then two years after that, I was diagnosed with Cancer.  I had surgery, radiotherapy, chemotherapy and hormone therapy. I worked the whole way through”.

In response to the comments made at the Commons Culture Committee, the BBC said in their statement that “they always try to balance our responsibility to presenters with our responsibility to suspend the licence fee appropriately”.

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Employers - Get Ready For GDPR

GDPR
You have unlikely escaped the General Data Protection Regulations (GDPR) which will take effect on 25 May 2018. We look at what this means for businesses and employers.

Currently, the UK relies on the Data Protection Act 1998, which was enacted following the 1995 EU Data Protection Directive. Some of the new regulations mirror those found under this Act, but as of May this year, all will be superseded by the new legislation. GDPR aims to introduce tougher fines for non-compliance and breaches and gives people more say over what companies can do with their data. It also makes data protection rules more or less identical throughout the EU.

Under Article 5 of the regulations it requires that personal data shall be:

  1. Processed lawfully, fairly and in a transparent manner in relation to individuals;
  1. Collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes: further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall not be considered to be incompatible with the initial purposes;
  1. Adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed;
  1. Accurate and, where necessary, kept up to date: every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purpose to which they are processed, are erased or rectified without delay;
  1. Kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as personal data will be processed solely for archiving purposes in the public interest, scientific or any public interest, scientific or historical research purposes or statistical purposes subject to implementation of the appropriate technical and organisational measures required by the GDPR in order to safeguard the rights and freedoms of individuals; and
  1. Processed in a manner which ensures appropriate security of the personal data including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.

Article 5(2) of the regulations requires that the controller should be responsible for, and be able to demonstrate compliance with the principles. So, in short, what does that all mean for you?

As a business, you must have a lawful basis in order to process personal data. Article 6 of the regulations sets out the lawful basis for processing data.  At least one of these must apply whenever you process personal data. The lawful bases for processing data are:

  • The data subject has given consent to the processing of his or her personal data for one or more specific purposes.
  • Processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract.
  • Processing is necessary for compliance with a legal obligation to which the controller is subject.
  • Processing is necessary in order to protect the vital interests of the data subject or of another natural person.
  • Processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.
  • Processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

You must determine the lawful basis (or base) before you begin processing and should document it, as well as the purposes for processing. Privacy notes should be updated in compliance with the new regulations.

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Upcoming PILON, NMW and SMP Changes Afoot

Pay-Bonus-1
Employers should be aware of the impending changes to payments in lieu of notice (PILON), National Minimum Wage (NMW) and Statutory Maternity Pay (SMP).

From April 2018, taxation of redundancy payments in relation to payments in lieu of notice (PILON) will be changing. The general rule prior to this upcoming alteration was that if an employee’s contract did not contain a PILON clause, and it was not normal practice for the employer to make such payments, then notice could be made without deduction of income tax and national insurance contributions, as long as the sum falls under the tax free threshold of £30,000.

If the employment contract contained a PILON clause, then the notice sum was viewed as earnings and subject to the normal deductions for tax and national insurance contributions as one would expect.

From April 2018, all notice pay will be subject to both tax and national insurance contributions, regardless of the contractual provision. Employers should take note that this will also include bonuses, commission or any other monies that would have arisen during the notice period as set out in the contract of employment or service agreement. As such, employees and employers will not be able to utilise the tax-free threshold of £30,000 for such payments.

HMRC are likely to seek to recover the income tax and national insurance contributions together with penalties and interest owed, should employers seek to classify a PILON as non-taxable.

Where an employee and employer have entered into a settlement agreement, it is common to see a tax indemnity regarding the payment being made, i.e. that the employee is indemnifying the employer for any income tax or employee national insurance contributions, interest and penalties should HMRC determine that tax and/or national insurance is due in respect of the payments made.

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Gender Inequality at Work is still Big News

Equal-Pay-1
It is unlikely that you have escaped the news that the BBC’s China Editor, Carrie Gracie, resigned from her role, citing pay inequality.

It was uncovered that male international editors were earning more than Ms Gracie’s salary of £135,000 per year. In comparison, the BBC’s US Editor earned between £200,000 and £250,000 whilst the BBC’s Middle East Editor earned between £150,000 and £200,000.

When the BBC published the yearly salaries of staff that earned over £150,000 in July last year, women accounted for just a third of the BBC’s biggest earners, with only one woman in the top nine. Ms Gracie did not appear on the list.

Across the BBC, the average pay of men is 10% higher than women. The BBC has stated openly that it hopes to close the ‘Gender Pay Gap’ by 2020. 

It is said that the UK Gender Pay Gap was 9.4% for full-time workers or 18.1% for all staff in 2016.

 

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The Office Christmas Party – Top Tips for Employers

Office-Christmas-Party
It’s the time of year when companies are gearing up for their office Christmas party – we hand out our top tips for employers to ensure fun for all.

The office Christmas party is traditionally a time when employees are at their most relaxed; especially when the consumption of alcohol is on the cards. As a result of this, a number of potentially difficult issues can arise for employers.

Our Employment Solicitor Alex Pearce has rounded up his top tips for employers during the festive period to ensure that the Christmas cheer is evident for everyone.

 

Does a suspended employee have the right to attend the office Christmas party?

The simple answer is maybe. Employers should give careful thought as to the reason why the individual was suspended in the first place. Does that reason justify said individual being required to remain away from the Christmas party which is, after all, a work social event? If the individual is in a customer-facing role and was suspended because of an external customer complaint, which was generally not related to his conduct, then the employer may have little or no grounds to justify asking the individual to stay away from a social event. Equally, if an allegation of harassment has been made, then it would be reasonable for the employer to take a view that the suspended employee shouldn’t attend the office Christmas party, or indeed attend any other social event connected with their employment.

 

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ACAS Early Conciliation – What Does It Mean?

Acas-1
As of May 2014, ACAS Early Conciliation has become a mandatory requirement. But what exactly does this mean for employers and employees?

Save from a limited number of claims, an individual who wishes to bring a claim at the Employment Tribunal must first contact ACAS; this includes claims for the following disputes:

  • Unfair dismissal
  • Discrimination
  • Redundancy payment or disputes over selection procedures
  • Deduction from wages, unpaid notice or holiday pay
  • Right to time off or flexible working
  • Equal pay

Ordinarily, it is for an employee to make contact with ACAS to initiate the process. It is, however, possible for an employer to initiate the process, should they wish to do so - there may well be times which it would be tactically advantageous for an employer to do so. Employers should note, however, that the time for the employee to issue a claim will not be stopped and there will be no extension of time.

 

What is ACAS Early Conciliation and what steps does an employee need to take?

Firstly, the employee will need to complete the ACAS Early Conciliation notification form which can be accessed online. Employees should considering using the employer’s appeal or grievance procedure, or letting such process runs its course before contacting ACAS, unless by doing so would result in the employee from being ‘out of time’.

Like with civil claims, there are time limits that both employees and employers should be aware of. For the majority of employment tribunal claims, the time limit is three months less one day. This is referred to as the limitation period.

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Employment Law - New Acas Guidelines Published

Acas-1
Acas, the Advisory, Conciliation and Arbitration Service for employers and employees alike has published new guidance on supporting working parents and trans employees.

Supporting working parents with ill or premature babies

The new advice published by Acas is geared towards assisting employers in supporting staff who have given birth to premature or ill babies, and employers are recommended to familiarise themselves with the new guidelines.

Advice for employers includes:

  • Being compassionate and sensitive in all communications
  • Being discrete. An employer should ask the parents what they would like to tell their colleagues about their situation. Understandably, some parents would like to keep the matter private.
  • Making employees aware of statutory entitlements to leave. This would include shared parental leave which must be taken between the baby’s birth and first birthday; and
  • Trying to be flexible when parents return to work as the baby may have follow-up appointments or treatment. Time off may be required.

The full article on supporting working parents with ill or premature babies can be found here.

Supporting trans employees in the workplace

Acas has published a new research paper on supporting trans and intersex employees in the workplace.

The research paper covers the legal and policy issues when employing trans and intersex workers. It also considers barriers, challenges and suggestions for change.

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