Within the Queen’s Speech on 21 June the government has announced a new “Data Protection Bill” that will replace the Data Protection Act 1998. The guidance notes in the Executive Summary to the Queen’s Speech describe the government’s main objectives:
A construction company, Mears Group, has banned its workers from having beards or heavy stubble, on the grounds of health and safety.
In a memo leaked to the media, the company explained the purpose of the new policy was to ensure that face masks were effective in dusty environments, and to reduce the risk of respiratory conditions. The company insists that staff should attend work clean-shaven so that the edge of the face mask is properly sealed against the skin.
Mr Peters was employed by Rock Oil for 16 years as the Company Accountant. At the time of his dismissal on 13 January 2015 he was aged 67. The company argued that they dismissed Mr Peters for conduct reasons, but Mr Peters succeeded in his claim that the true reason for the dismissal was his age.
In 2009 the company, which was predominantly a family-run business, became concerned that most of the senior roles were occupied by managers approaching retirement age, and succession planning needed to be considered. In December 2011 the company hired another accountant. Initially he was deployed into a different area of the business. However, he was introduced to many people as Mr Peters’ successor.
A law student has succeeded in her claim of disability discrimination against the Government Legal Service (GLS) after being turned down for a trainee position. Not only did her claim succeed, but she represented herself in person at the hearings, both at the Employment Tribunal and at the Employment Appeal Tribunal.
The claimant, Ms Terri Brookes, was diagnosed with Asperger’s syndrome in 2009. She applied for a trainee position with the GLS in 2015. Each year the GLS receives thousands of applications for around 35 trainee places. These statistics led the judge to refer to the GLS scheme as “a fiendishly competitive recruitment process”. As part of the selection process the GLS followed a common practice in recruitment by conducting an online psychometric test based on a multiple-choice answer format.
The Government’s website for uploading affected employer’s gender pay gap information is now live.
As of 6 April 2017, employers with 250 or more employees (calculated as at the 5 April each year) are obliged to report annually on their gender pay gap. The first report is due by 4 April 2018 and must be published on the employer’s own website (and retained for three years). It must also be uploaded onto the Government’s website which can be found here.
In order for a dismissal to take effect it must be communicated and received by an employee. In most circumstances that should never give rise to a problem. However, in the recent case of Newcastle Upon Tyne NHS Foundation Trust v Haywood the delay in an employee finding out about her dismissal proved particularly costly to the employer.
Ms Haywood was an associate director at the Trust from 2008 to 2011. Following a merger of NHS bodies her role was placed at risk of redundancy. At a consultation meeting on 13 April 2011 the Trust informed Ms Haywood they had not yet made their final decision, and that they would confirm their decision by letter. At the meeting Ms Haywood reminded her employer that she had a holiday planned in Egypt from the 19th to 26th April. In fact, she did not return until 27th April as her return flight was delayed. This delay of one day proved to be crucial.
Has the Court of Justice of the European Union this week upheld an employer’s right to ban the wearing of Islamic headscarves in the workplace? Whilst some media reporting of the two related cases of Achbita v G4S Secure Solutions and Bougnaoui v ADDH Micropole SA has suggested the answer to that question is a resounding “yes”, the actual answer is less clear cut.
Achbita v G4S Secure Solutions
Samira Achbita was employed in a receptionist role by G4S. The company operated a workplace rule that “employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs”. The company’s justification was that they needed to appear neutral in the image it projects to clients and customers. In April 2006 Ms Achbita informed her employer of her intention to wear the hijab. G4S warned her not to do so. On 12 June 2006 Ms Achbita was dismissed.
Self-employed contractors who transport urgent medical supplies, including blood samples, have lodged a claim at the Employment Tribunal disputing their self-employed status. The five couriers claim that they are employed by The Doctors Laboratory. This could be the first case concerning the ‘Gig Economy’ within the healthcare sector.
Please join us for a seminar over breakfast in our new offices. We will be covering key employment law changes in 2017 including gender pay gap reporting, the new apprenticeship levy, important data protection changes, employment status and the ‘gig economy’ , as well as Brexit and more.
The maximum limits on compensation available in Employment Tribunal claims is set to increase from 6th April 2017.
The most significant change is that the maximum compensatory award in unfair dismissal claims will rise from £78,962 to £80,541. However, the existing principle will remain in place whereby an employee’s maximum award would be limited to one year’s pay if that amount is below the level of £80,541.
On Wednesday 15th February the Department for Business, Energy and Industrial Strategy published a new list of employers failing to pay the National Minimum Wage (NMW) or the National Living Wage (NLW). There were 360 employers on the list which was the highest on record.
At the top of the published list, Debenhams became the record offender since the practice of publishing named employers began in 2013. The company owes £135,000 in arrears of pay and a £63,000 fine to HMRC. The company confirmed it had underpaid an average of £10 per worker during 2015 because of a technical error.
The government has confirmed that the reporting system for HMRC self-assessment is due to change to an online system, meaning that the annual tax return will become a thing of the past. This will affect small businesses, the self-employed, and buy-to-let landlords. Yet the evidence seems to indicate that there is very little public awareness of this radical change that is due to take effect from April 2018.
The Court of Appeal has today published its judgment in the case of Pimlico Plumbers v Smith. The case has wide-ranging implications for other recent Employment Tribunal cases concerning workers engaged in the ‘Gig Economy’, in particular the high profile case of the Uber drivers.
Mr Smith was engaged as a self-employed plumber in what, at first glance, might appear to be an uncontroversial relationship as a contractor who provided his own tools and equipment. Mr Smith was VAT registered, filed his own tax returns, and submitted his own invoices. Indeed, Mr Smith admitted in evidence that throughout his six year engagement, his own assumption was that he was self-employed.
Two House of Commons committees have published a report on Wednesday 25th January calling for better legal protection for female workers who are subjected to discriminatory dress codes. The investigation was triggered by the case of Nicola Thorp who was sent home without pay by her employer for not complying with a requirement to wear high heels of between two and four inches.
The employment rights of those working in the ‘Gig Economy’ has been considered again by the Employment Tribunal in the case of Dewhurst v Citysprint UK Ltd. This case follows on from the recent decision regarding Uber drivers.
Ms Dewhurst is a cycle courier working for Citysprint in Central London. The Employment Tribunal has held that she should be classified as a ‘worker’ even though her contract contained specific wording she was an independent contractor. Nevertheless Ms Dewhurst submitted a claim for unpaid holiday pay on the basis that, although she might not be an employee, she was still entitled to holiday pay as a ‘worker’.
With the arrival of 2017, employers will be looking ahead to what changes are on the horizon in employment law this year. One change due to come into effect relates to apprenticeships and the way in which they are funded.
An ‘Apprenticeship Levy’ will be payable by employers from 6 April 2017. In the 2015 Budget, the government announced its intention to create an additional 3 million apprenticeship places by the year 2020. The levy is being introduced to cover the additional funding that the government estimates would be required.
It’s that time of year again; the work Christmas parties are in full swing and employers often have to deal with disciplinary matters and liabilities arising from employees’ alcohol-induced antics.
Two drivers who brought test cases against Uber have succeeded in arguing they should be categorised as “workers” rather than self-employed.
A bakery who cancelled an order for a cake has been held to have discriminated on the grounds of sexual orientation.
Ashers Baking Company is owned by Mr and Mrs McArthur. Its owners are committed Christians who oppose same-sex marriage. The bakery advertises a service whereby they can scan a picture and have it specially printed onto the cake. A customer named Gareth Lee was planning to celebrate an event for Northern Ireland Anti-Homophobic Week. Mr Lee ordered a cake and submitted a photo of Bert and Ernie from Sesame Street, which is also used as a logo for ‘QueerSpace’. The photo included the caption “Support Gay Marriage”.
Thousands of current and former workers at Asda stores are pursuing a claim for Equal Pay. They are arguing that their roles in retail stores are of ‘equal value’ to workers in Asda’s distribution centres. Workers in the distribution centres receive more take-home pay than in retail stores, and the distribution roles are overwhelmingly carried out by men.
A recruitment agency has recently caused a lot of controversy with an advert posted on its website. The ‘Matching Models’ website advertised for a ‘PA/Flight Attendant’ on behalf of an individual who travels by private jet. The job role was advertised with requirements such as “brown long hair with B-C cup”, “classic look”, and “classy and immaculate presentation”. The client was described as “a well-known flamboyant aristocratic figure”. The role also specified the person should be educated to degree level and have advanced MS Office skills.
Last week a campaign group of junior doctors challenged the Secretary of State for Health’s powers to impose new contractual terms in a hearing at the High Court. This was the latest episode in a long running dispute that has seen junior doctors taking strike action.
From the 1 October 2016 the hourly rates for the National Minimum Wages are set to increase. Different categories of workers receive a different rate depending on their age and status, and the rates are set to increase as follows:
The Office of National Statistics tracks the earnings gap between men and women. The most recent statistics covering 2015 show the gender pay gap was 19% (averaged across all employees, both full and part-time). On average, men earn more than women. However, men working part-time are paid less, on average, than women working part-time.
Despite the ban on exclusivity clauses in “Zero Hours” contracts, data from the Office of National Statistics shows that the numbers of workers engaged on “Zero Hours” contracts has continued to rise over the past 12 months to around 900,000 (being around 2.9 % of the employed population). However, following a considerable amount of negative publicity, Sports Direct announced on 6th September that it would implement changes enabling staff working on “Zero Hours” contracts to switch to a contract with minimum guaranteed hours.
Ms Bougnaoui, a Muslim woman working as a design engineer for Micropole SA in Paris, was dismissed from her job because she refused to comply with an instruction not to wear a headscarf.
If you require any further information on the items featured in this newsletter or indeed advice on any other employment matter, please contact one of our employment solicitors to the right.
You can also download a copy of this newsletter in PDF format here
In this edition of our Employment Newsletter, we consider various employment law issues arising from the use of technology and social media in the workplace, as well as looking at some high profile cases involving employment matters in the technology industry.
With less than one week to go until the EU referendum, the potential effect on employment law has been a hot topic of debate, with many Brexit critics stating that the protections provided to workers would be removed following a vote to leave the EU.
The states of North Carolina and Mississippi have both recently passed laws that restrict the rights of transgender people.
The North Carolina law requires transgender people to use bathrooms in state government buildings and public schools and universities that correspond to the gender on their birth certificates. It also established anti-discrimination protections statewide that exclude LGBT people, and it has banned communities from passing anti-discrimination rules that go further.
It has been reported by the BBC that Louis van Gaal has been sacked as manager of Manchester United, with former Chelsea boss Jose Mourinho set to be named as his replacement.
Van Gaal was allegedly informed about his impending departure by his wife, when she read the news on the BBC website on Saturday evening. Van Gaal was still at Wembley following the club’s FA Cup Final win.
A young receptionist has alleged that she was sent home, without pay, after refusing to wear a pair of high heels to work.
Last week, an Employment Tribunal found in favour of a former Leeds United employee, Lucy Ward who brought a claim of unfair dismissal and sex discrimination against the club.
Ms Ward worked as the club’s education and welfare officer, and claimed that she was sacked due to her ongoing relationship with former head coach, Neil Redfearn. She alleged that the club chairman, Massimo Cellino dismissed her as she and Mr Redfearn “came as a pair”. Ms Ward had worked for the club for 17 years until served with her notice in July 2015.
A recent survey carried out by the Working Families charity has revealed that 60 per cent of new fathers don’t have the confidence to ask their bosses for flexible working arrangements despite wanting to take time off to be with their children.
The reality for many new fathers who take their paternity leave immediately after their baby is born is that they return to work still wondering what their new baby looks like. In those early stages, although taking time off can be crucial to support their partners, fathers can find themselves taking on a more functionary role, helping around the house whilst the baby is feeding.
Employment tribunal award limits are set to increase slightly on 6 April 2016. The maximum compensatory award for unfair dismissal will rise from £78,335 to £78,962. The maximum amount of a week’s pay used to calculate statutory redundancy payments and the basic and additional awards for unfair dismissal also rises from £475 to £479.
In a recent Supreme Court ruling, Morrisons supermarket has been held vicariously liable for the actions of an employee who seriously assaulted a customer.
The attack was carried out by Mr Khan, an employee at a Morrisons petrol station. The customer, Mr Mohamud entered the petrol station and sought assistance from Mr Khan with printing some documents. Mr Khan responded in an abusive manner, using foul and racist language. He then followed Mr Mohamud to his vehicle and attacked him, punching and kicking him repeatedly, ignoring requests by his supervisor to stop the attack.
The National Living Wage is a premium which will be added on to the National Minimum Wage for all workers aged 25 and over from 1 April 2016. The premium has initially been set at 50p, and will be added on to the adult National Minimum Wage of £6.70 an hour for qualifying workers. The initial rate of £7.20 will be subject to annual review by the Low Pay Commission, in the same way that it makes recommendations for changes to the National Minimum Wage.
For the first time, larger employers are going to be required to calculate and publish details of how they pay their male and female employees. This is a huge change and is likely to lead to some employers facing claims or, at the very least, being embarrassed by the information they have to disclose. Therefore, employers should take careful note of the new rules and consider how they will be impacted by them.
The Employment Appeal Tribunal has confirmed that workers who receive commission as a regular part of their salary must have it included in holiday pay.
A supervisor at Starbucks, Meseret Kumulchew has successfully sued the company for disability discrimination after being accused of falsifying records.
Meseret has dyslexia, which causes her difficulties with reading and writing. As part of her role as a supervisor, she was required to enter a record of refrigerator and water temperatures at specific times.
National security firm, Total Security Services Ltd has been named and shamed by the government for failing to pay employees the national minimum wage.