Government reforms (2): Parental bereavement leave

What do we already know?

We updated you in our September 2018 Newsletter Government reforms (2): Parental Bereavement Leave that the Parental Bereavement (Leave and Pay) Act 2018 is likely to come into force in 2020.

The Act gives bereaved employees who have suffered a loss of a child under 18 years or a still birth from 24 weeks of pregnancy a day-one right to take two weeks’ paid leave. 

What’s new?

The Government has published its response to the public consultation on the Parental Bereavement (Leave and Pay) Act 2018 (available here) and a press release confirming details of the Act (available here).

The response to the consultation provides further details on the new rights:

  • leave can be taken either in 1 block (of 1 or 2 weeks) or as 2 separate blocks of 1 week;
  • leave and pay can be taken within a 56 week window from the child’s death so as to allow time for important moments such as anniversaries;
  • notice requirements will be flexible so that leave can be taken without prior notice very soon after the child’s death; and
  • employers will not be entitled to request a copy of death certificate to use as evidence.

The Act will also be extended beyond parents to cover all primary carers for children including:

  • adopters;
  • foster parents;
  • guardians; and
  • kinship carers (those who have assumed responsibility for the care of the child in the absence of parents).

We are still waiting for the regulations to be published which will implement the Act and set out precisely how parental bereavement leave will work and to whom it will apply.

Case update (3): Holiday pay – carry over made easy

Summary:  If a worker doesn’t ask to take their outstanding statutory holiday entitlement before the end of their leave year, can they be prevented from carrying it over to the next?

No, unless the employer has ensured “specifically and transparently” that the worker has been given the opportunity to take the leave, held the CJEU in Max-Planck-Gesellschaft v Shimizu and Kreuziger v Land Berlin available here.

Facts:  The CJEU considered both above cases which involved German law.  This law said that workers would only receive a payment in lieu of accrued holiday when their employment ended if their employer had prevented them from taking it. This meant that workers had to ask to take all outstanding leave first.

Neither claimant, Mr Kreuziger nor Mr Shimizu, had asked their employers to take their outstanding holiday before they left their employment.  On termination, Mr Kreuziger asked his employer for a payment for outstanding holiday that accrued over five months. Mr Shimizu asked for payment for 51 days outstanding holiday which spanned two leave years. Their employers refused (relying on German law) and Mr Kreuziger and Mr Shimizu brought claims.

The German Federal Labour Court referred questions to the CJEU.

The CJEU held that the Working Time Directive requires that if a worker does not exercise the right to paid annual leave in any year, leave should not automatically be lost unless the employer has ‘diligently’ brought it to the worker’s attention this is the case. Employers need not require employees to take leave, but must inform them accurately and in good time of the right.  As the right to annual leave is in the EU Charter, it applies between private parties.

The CJEU’s decision means that, going forward, the prohibition in the Working Time Regulations 1998 on the carryover of the four weeks’ EU statutory holiday will be subject to the condition that the employer has exercised all due diligence to ensure the worker could take their leave and knew the consequences of not doing so.

The decision involves important principles which apply to UK employers:

  • workers are the weaker party in an employment relationship and employers must not do anything to deter them from taking annual leave;
  • employers must make sure that workers take annual leave by informing them of their rights and “encouraging” them to take it;
  • this information should be accurate and make it clear when rights will expire (such as at end of the leave year) and be given early enough for the worker to take it;
  • this suggests that employers will need to do more than simply have a written policy in place; and
  • employers will also have to prove they have done this. If they can’t then any restrictions which stop the worker carrying over holiday into a new leave year will not apply.

These cases will now go back to the German courts to determine if Mr Kreuziger and Mr Shimizu should receive compensation for all untaken leave.

Implications:  Similar to other decisions of the CJEU relating to holiday entitlement, this applies to the first four weeks statutory holiday and employers are entitled to operate a “use it or lose it” approach to the remaining 1.6 weeks holiday.

If employers want to continue to operate a holiday policy which does not allow carry over of leave of statutory holiday from one year to the next, they will need to be able to show that they have “exercised all due diligence” to enable the worker actually to take his entitlement.  Loss of entitlement will only be lawful if the worker deliberately declines to take their leave knowing the consequences.

This means encouraging workers, formally if necessary, to take their leave entitlement and informing them, accurately and in good time, that they will lose it if they don’t take it. However, this does not apply to staff who don’t take leave because they are ill or are on maternity leave as they will be able to carry over in any event.

Employers should have a system to send reminders to workers through the holiday year, particularly in the months towards the end that year, telling them what holiday they still have available to take and encouraging them to take it. This is an effective way of ensuring that workers do not try to use this case to argue that that they were not given the opportunity to take their holiday so they should be paid in lieu of it on the termination of their employment.

Government reforms (1): Budget 2018

The Chancellor presented this year’s budget at the end of October 2018. Key announcements for HR/employment law are:

1. National living wage and minimum wage increases:

The following National Minimum Wage (NMW) rates come into effect in April 2019:

  • 25 years and above (the National Living Wage):  from £7.83 to £8.21 per hour;
  • 21-24 year olds:  from £7.38 to £7.70 per hour;
  • 18-20 year olds:  from £5.90 to £6.15 per hour;
  • 16-17 year olds:  from £4.20 to £4.35 per hour; and
  • Apprentice rate: from £3.70 to £3.90 per hour.

2. Apprenticeships:

The Government announced that it will introduce a package of reforms to strengthen the role of employers in the apprenticeship programme, so they can develop the skills they need to succeed. As part of this the Government will:

  • make up to £450m available to enable levy-paying employers to transfer up to 25% of their funds to pay for apprenticeship training in their supply chains;
  • provide up to £240m to halve the co-investment rate for apprenticeship training to 5%;
  • provide up to £5m to the Institute for Apprenticeships and National Apprenticeship Service in 2019-20, to identify gaps in the training provider market and increase the number of employer-designed apprenticeship standards available to employers. All new apprentices will start on these new, higher-quality courses from September 2020; and
  • work with a range of employers and providers to consider how they are responding to the apprenticeship levy across different sectors and regions in England, as well as the future strengthened role of apprenticeships in the post-2020 skills landscape.

3. Intermediaries (IR35) and the public sector:

 The Government has announced that from 6 April 2020 it will extend the off-payroll working rules (IR35) (which currently apply to public sector bodies; see our updates here) to certain medium-sized and large private sector businesses.

However, the Government will carry out a further consultation in 2019 in order to refine this extension and draft legislation will be published in summer 2019. To reduce the burden of this change, the extension will not apply to “small businesses” (fewer than 50 employees, a turnover of under £10.2m, and total assets of £5.2m or less). Therefore, where a small business engages a worker, responsibility for deciding whether IR35 applies and paying tax and NICs, will remain with the ‘personal service company’ intermediary.

Case update (2): Whistleblowing – can an individual be liable?

Summary: Can individual workers can be liable for a whistleblowing dismissal?

Yes, held the EAT in Timis & Anor v Osipov & Anor available here.

Background:  Since 2013, whistleblowers have had the right to bring a claim directly against their co-workers if subjected to a detriment other than dismissal itself.

Dismissal and detriment are treated differently in the legislation. Only employees can claim unfair dismissal, yet whistleblowing protection is wider than this and offers protection to the broader category of workers who suffer detrimental treatment because of blowing the whistle.

The protection from detrimental treatment also offers a successful claimant compensation for injury to feelings, but appears to exclude co-worker liability in a situation where the detriment amounted to a dismissal. The Court of Appeal was asked in this case to decide whether claims could only be brought against co-workers in relation to detriment short of dismissal – or did it extend to the act of dismissal?

Facts:  Mr Osipov was the CEO of International Petroleum Ltd (IPL), an oil and gas exploration company operating in Niger in June 2014. Within days of joining IPL, Mr Osipov discovered serious wrongdoing by senior employees and made a number of protected disclosures about corporate governance and compliance with local law.

Mr Osipov was subsequently dismissed by two of IPL’s non-executive directors, Mr Timis (the largest individual shareholder) and Mr Sage (the Chairman).  Mr Osipov brought Tribunal claim for automatic unfair dismissal and detrimental treatment under the whistleblowing legislation.

The Tribunal found Mr Osipov had been automatically unfairly dismissed because he was a whistleblower and that he had suffered detriments by his treatment by the two non-executive directors. The Tribunal awarded compensation for injury to feelings against all three parties who were held to be jointly and severally liable.

IPL became insolvent and Mr Osipov sought to enforce the judgment against Mr Timis and Mr Sage, the non-executive directors. Mr Timis and Mr Sage appealed to the EAT, on a number of grounds including that they should not have been made liable for the losses flowing from the dismissal. The non-executive directors argued that a “detriment” under whistleblowing legislation specifically excludes detriments amounting to dismissal and that unfair dismissal claims relating to whistleblowing can only be brought against an employer and not named individuals (as with all unfair dismissal claims).

The EAT rejected the appeal and upheld the Tribunal’s finding that the non-executive directors were jointly and severally liable for nearly £1.8 million. Mr Timis and Mr Sage appealed to the Court of Appeal.

The Court of Appeal had to decide whether the drafting of the whistleblowing legislation means that claims against individual co-workers can only be brought in relation to claims of detriment falling short of dismissal, or whether claims can be brought against co-workers for the dismissal. In reviewing the wording of the whistleblowing law and its purpose, the Court of Appeal explained that, although the law’s wording was not very clear, once Parliament had made the decision to make co-workers personally liable for whistleblower detriment, it was difficult to see why this should not be intended to extend to cases where the detriment amounted to dismissal.

The Court of Appeal dismissed the appeal and the non-executive directors were confirmed as jointly and severally liable for nearly £1.8 million.

Implications: This is believed to be the first case in which an individual has been held liable for dismissal-related claims brought as a detriment claim.  It is also an unusual case as on most occasions there would be a solvent employer to pursue for compensation.  However, this decision might encourage whistleblowers to pursue dismissal-related claims against both their employer and against the dismissing manager (as often occurs in discrimination claims).  Particularly as with detriment claims it is possible to claim an additional award for injury to feelings.

Large sums of money were involved in this case as there is no statutory cap in compensation for injury to feelings and this should remind employers of the need to have robust safeguards in place to avoid such liability.

Employers should be proactive to ensure they have taken all reasonable steps to prevent their workers from subjecting co-workers to whistleblowing detriment. This could include:

  • putting in place systems to identify potential protected disclosures at an early stage so that they can be properly managed and addressed;
  • training to increase management awareness of the potential risks and ensuring robust whistleblowing polices are implemented; and
  • training decision makers on the rights of whistleblowers, including how to spot and deal with whistleblowing allegations.

 

Case update (1): Harassment at work

Summary:  Is referring to a colleague as a “fat ginger pikey” harassment?

No, not if the victim participated in similar banter, said the EAT in Evans v Xactly Corporation Limited, available here.

Facts:   Mr Evans was a salesman of Xactly between January and December of 2016. Mr Evans suffers from type 1 diabetes and also has links to the travelling community.

It was widely known that Mr Evans had diabetes. However, he was not overweight during his employment, and there was no medical evidence to suggest that his weight was affected by his diabetes.  Although staff were aware of Mr Evans’ diabetes, few staff knew of links to the travelling community.

Having not made any sales in the first eleven and a half months of his employment, and having refused to take guidance from his manager, Mr Evans’ employment was terminated.

Mr Evans had not been employed for long enough to bring an unfair dismissal claim, but he brought Tribunal claims of race and disability discrimination.

During his employment, Mr Evans was referred to as a “fat ginger pikey” by a colleague on one occasion. Mr Evans was on friendly terms with this colleague, and socialised with him outside work, both before and after the comment was made. This colleague had not been aware of Mr Evans’ links with the traveller community. Mr Evans did not complain about this comment at the time.

On a few occasions, Mr Evans was called a “salad dodger”, “fat yoda” and “gimli” (a reference to a Lord of the Rings character). Mr Evans claimed that these comments constituted harassment on the grounds of race and/or disability.

In considering his claim, the Tribunal considered the context in which the claims were made. The Tribunal found that Mr Evans was an active participant in inappropriate comments and behaviour in the workplace, and seemed to be comfortable with the office environment.  It found the office culture to be one of ‘jibing and teasing’. Mr Evans apparently often said the word “c***”, mocked a female member of staff’s weight by calling her “the pudding”, and called one of his friends a “fat paddy” on a regular basis.

It was acknowledged however that on the face of it the “fat ginger pikey” comment is derogatory, demeaning, and unpleasant and a potentially discriminatory and harassing comment to make. However, looking at the tests for harassment, the Tribunal found that:

  • the comments made to Mr Evans were not unwanted, because he had been such an active participant in the culture of banter;
  • the comments did not have the purpose of violating his dignity or creating an intimidating environment for him;
  • nor did they have the effect of violating his dignity or creating an intimidating environment for him, as he was not offended; and
  • in any event, it would not have been reasonable for him to have considered his dignity was violated or the environment was hostile, given the particular circumstances and context.

In relation to the claim that harassment had been related to his disability, he had not proved that his weight (which was unremarkable) had anything to do with his disability. Accordingly, the Tribunal did not uphold his claims of harassment. The EAT agreed that, on these particular facts, the Tribunal was entitled to make this finding. The EAT agreed with the Tribunal that Mr Evans’ employment had been terminated because of a break down in relationship in circumstances of poor performance.

Mr Evans also claimed that he had made a complaint to his manager about being called a “fat ginger pikey”, and about being been harassed. Mr Evans said that he had been victimised for making this complaint. However, the conversation between Mr Evans and his manager had been outside a pub where they were having a drink after a football game together. The Tribunal found that Mr Evans had elaborated the discussions: the evidence showed that it had been a low-level discussion, which his manager had genuinely forgotten. The Tribunal also found that there was no evidence that Mr Evans’ manager had reacted against him after this conversation. His claim of victimisation therefore failed. The EAT agreed that the Tribunal had carefully considered the facts and had been entitled to dismiss this claim.

Implications: In this case, the context of the comments made to Mr Evans was key. Mr Evans had participated in office banter, and the Tribunal found that he was not genuinely offended by the comments made to him. However, in a different context the outcome of this case could have been very different.  In particular, the comments could have been overheard by someone else who they offended and claimed harassment.

Employers should therefore be careful not to make the mistake of relying on this case too much.  Discriminatory banter should not be ignored in the workplace. It is still best practice to have a workplace policy that prohibits name calling of any description and training should be offered to managers and staff to ensure they understand what acceptable workplace behaviour is.  If a complaint is lodged as a result of name calling, the employer should investigate the circumstances surrounding the incident and the workplace culture to properly consider whether the comments were made and received in a jovial manner. Only where it is clearly the case that the comments were not made in a discriminatory manner and were not taken at the time to be discriminatory, may it then be a defence to argue such name calling did not violate the employee’s dignity and was indicative of the prevailing workplace culture.

 

ACAS guidance: Performance management

ACAS has published new advice (available here) providing ‘top tips’ for employers on how to fairly treat their staff. The new advice comes after research reveals that only 1 in 4 organisations adapt performance management processes to consider staff with disabilities and conditions such as dyslexia and autism.

The research also highlights that 1 in 10 employees felt that their employer’s performance management system was:

  • demotivating staff; and
  • not used for planning and monitoring training and development.

The advice includes tips such as:

  • avoiding surprises – managers should discuss and address problems along the way as they present themselves, without leaving concerns until the end of the year performance meeting;
  • avoiding favouritism – managers should use objective criteria to gauge performance where possible to reduce the risk of managers being seen to favour certain employees over others; and
  • avoiding discrimination – employers should consider the diversity of their workforce and make sure their arrangements are fair to all, as well as in line with the Equality Act 2010.

November 2018 Newsletter

It’s November and as the heat from the bonfires fade and the cold sets in, we hope to keep your interest in HR/employment law warm; we have news on this year’s budget implications for HR, parental bereavement leave and ACAS guidance on performance management.

In our case update this month we update you on when calling someone a “fat, ginger, pikey” may not constitute harassment, when an individual may be liable for whistleblowing, and what an employer needs to do if it wants to maintain a policy that  workers may not carry over their statutory holiday entitlement to the next year.

Our November update

It was lovely seeing so many faces at our November Employment Law Update in Bristol recently. Thank you to those attending and for your lovely feedback on our topics. We were delighted to introduce Tamsin to you and to hear her fascinating talk on sexual harassment. We all got hands on during our discussions as to what might constitute sexual harassment and some of us were surprised to hear what the ‘peach’ and ‘aubergine’ emojis are being used for!  Overall the venue (Bristol Cricket Ground) got a thumbs up. It is accessible with a big car park but we will try to do something about those noisy fridges if we are there again in March.

Pensions support

Q: What could you possibly want to add to a bunch of lovely employment lawyers?

A: Pensions lawyers… obviously! 

It may be difficult to hype up the somewhat soporific subject of Pensions, but we hope we have caught your attention for a few milliseconds.  While we’ve still got you, let us just mention that quite a few aspects of TUPE and mergers & acquisitions can involve pensions law issues going hand-in-hand with employment law questions.  And pensions law is definitely not an area for a mere employment lawyer to want to dabble in.

So to avoid any oversights and mishaps, and to ensure that you get the best – and the fullest – advice, we have teamed up with some of the region’s best pensions lawyers to provide you with all the advice and support around any pension scheme you may find yourselves involved with.

Our Pensions advice services include:

  • Pension schemes – setting up, administering, closing down
  • Final salary schemes, TPS and LGPS
  • Auto-enrolment
  • Restructures, mergers and acquisitions
  • Due diligence and transactional support
  • Pensions issues in an employee/executive exit
  • Pension-related litigation and disputes

If you’d like to discuss anything to do with Pensions, please contact .

 

Government reforms

ACAS guidance

Case updates

 

Case update (1): TUPE – beware of automatic unfair dismissal

Summary:  Was the dismissal of an employee two days before a TUPE transfer automatically unfair, despite being due in part to the employee’s personal circumstances?

Yes, held the EAT in Hare Wines v (1) Kaur (2) H and W Wholesale available here.

 

Background: The dismissal of an employee of the transferor or the transferee is automatically unfair if the sole or principal reason for the dismissal is ‘the transfer’.

Whether a dismissal is by reason of the transfer is a question of fact for the Tribunal to decide in the light of all the circumstances. If the employer can show that the dismissal would have occurred wholly independently of the transfer, and is therefore unrelated to the transfer, the dismissal is not automatically unfair and fairness will be considered in accordance with normal principles.

 

Facts:  The employee, Ms Kaur, was a cashier working for H&W Wholesale, the employer. Ms Kaur was dismissed two days before the stock and employees of the employer were transferred under TUPE 2006 to Hare Wines.

Ms Kaur brought a Tribunal claim for automatic unfair dismissal because the sole or principal reason for her dismissal was the transfer. Ms Kaur argued that she had a strained working relationship with her colleague, Mr Chatha.  She thought that Mr Chatha did not want to work with her and that Hare Wines did not want Mr Chatha to have to manage her. Both employers denied this and defended the claim on the basis that Ms Kaur’s employment had been ended because she had objected to the transfer.

The Tribunal held that Ms Kaur’s dismissal was automatically unfair because the reason for the dismissal was the transfer. It accepted that Ms Kaur had not objected to the transfer and would have transferred but for her dismissal. As such, it concluded Ms Kaur had been dismissed because Hare Wines had anticipated that there would be ongoing difficulties in the working relationship between her and Mr Chatha and did not wish her contract of employment to transfer.

Hare Wines appealed to the EAT. Hare Wines’ main argument was that the reason for the dismissal was entirely personal to Ms Kaur and did not relate to the transfer.

The EAT dismissed the appeal, holding that:

  • for a dismissal to be automatically unfair, the transfer must in fact be the sole or principal reason for the dismissal and that is a matter to be determined by the Tribunal having regard to all the circumstances.
  • in this case it could not be suggested that the Tribunal had in mind the wrong test or a lesser test in determining the reason for the dismissal. The wording used by the Tribunal clearly showed that it was considering what was the reason, sole or principal, for the dismissal.
  • There were a number of reasons for rejecting the argument that the existence of purely personal reasons precludes the transfer from being the reason for the dismissal:
  • first, TUPE 2006 was designed to protect workers’ rights and one needed to be very careful in expanding or introducing what might appear to be new categories of defence, which may undermine the protection afforded to employees in these situations.
  • second, an important factor to take into account in determining the reason for the dismissal is the proximity to the transfer (and in this case the dismissal was effective just two days before the transfer)
  • Even if the ongoing difficulties in the working relationship between the employee and Mr Chatha can be described as ‘personal’ to the employee, a significant factor is that the difficulties were ongoing. That is to say, an issue affecting an employee’s conduct or competence, if suddenly acted upon at the point of transfer, is unlikely to be the sole or principal reason for the dismissal. An employer taking the opportunity to dismiss in such circumstances could reasonably be said to be motivated by the transfer, thereby making the transfer the principal reason for the dismissal.

 

Implications:  Employers should take care on transfers not to use it as an opportunity to dismiss problem employees, as it is likely to result in an automatically unfair dismissal. Whether a transfer is the sole or principal reason for a dismissal will be a question of fact in each case. However, employers should be aware that the fact that there is a personal reason for a dismissal will not prevent a Tribunal from finding that the sole or principal reason for the dismissal was the transfer.

 

October 2018 Newsletter

It’s October and time for Halloween.  We don’t mean to spook you, but we have heard haunting tales of mandatory ethnicity pay gap reporting and fines for employers who don’t pay their data protection fees.  We hope to shed light on these developments and the Government’s plans to ensure that tips go to staff in full.

In our case update this month we ask you to tread carefully when dismissing staff just before a TUPE transfer or removing contractual terms.

News about Menzies Law

We would like to give a warm welcome to Tamsin James who has joined the Menzies team.  Like Luke, Anne-Marie and Simon, Tamsin is a specialist employment lawyer with over 20 years’ experience (making a grand total of over 80 years’ experience between all our lawyers).  Tamsin started her career advising large employers, but now uses her expertise to advise senior employees and individuals. She has a particular speciality in complex discrimination claims – and we are seeing a lot more of those.

Tamsin will be talking about Sexual Harassment and #MeToo at our November Employment Law Update so come along and meet her.

Pay & Reward

You’ve perhaps noticed that nowadays we’re talking about Pay & Reward quite a lot!

Get your compensation policies right and you can inspire and motivate your employees. Get it wrong and you’re facing low productivity, recruitment and retention problems.  And probably people being rewarded for the wrong behaviours.  We’re here to make sure you get it right, every time.

Led by Jane Baalam, we can help you to design and implement pay structures that fit your organisation’s needs, direction and culture.  We now offer a wide range of Pay & Reward services, including:

  • Equal Pay audits and advice
  • Gender Pay Gap audits and advice
  • Pay structure advice
  • Remuneration Committee advice
  • Job Evaluation
  • Salary benchmarking

If you’d like to attend Jane’s next seminar “Pay Equality: a brave new world.  Claims, risks and solutions” then you can book here.

Alternatively, to discuss anything to do with Pay & Reward, please contact .

Government Reforms

Case Updates

Government Reforms (3): Top tips for staff

The Government has announced plans (available here) to ensure that tips left for workers will go to them in full.  This forms part of its modern ‘Industrial Strategy’ to end exploitative employment practices.

While the Government acknowledges that most employers act in good faith, in some sectors evidence points towards poor tipping practices, including excessive deductions being made from tips left by customers.

New legislation, to be introduced at the earliest opportunity, will set out that tips must go to the workers providing the service.

The Government previously made a call for evidence on tipping practices in 2015, followed by a consultation which included the following proposals:

  • updating the voluntary code of practice on discretionary service payments to put it on a statutory footing;
  • increasing transparency for consumers to ensure that discretionary payments for service are truly voluntary; and
  • preventing or limiting any employer deduction (e.g. administration fees) from discretionary payment for service (other than tax deductions).

The Government is clear that ‘tips must go to the workers providing the service’. However, we wait to see what the new proposed legislation will cover, in particular whether it will address the practice of employers using tips left for waiting staff to subsidise the wages of others such as kitchen workers.