Guidance (2): Miscarriage Association

The Miscarriage Association has published a leaflet (available here), that contains information and advice for employers on how to support staff affected by miscarriage during their employment.

It includes information on the signs and symptoms of miscarriage, suggestions of how to deal with an employee’s time off work and return to work.  It also summarises employers’ legal obligations connected with miscarriage such as paid time off for ante-natal appointments, risk assessments for pregnant workers, and dealing with related sickness absence.

Government reforms: New Year, New Law!

In order to welcome in 2020, below is a round-up of the most important employment law changes this year. You may also find our 2020 employment law timetable useful.

We’ll be covering many of these events in more detail in our future Newsletters and blogs.

1 April 2020

Increases to National Living and Minimum Wage

The new rates are as follows:

  • Age 25 plus: National Living Wage increase from £8.21 to £8.72 per hour;
  • Age 21 to 24 (inclusive): increase from £7.70 to £8.20 per hour;
  • Age 18 to 20 (inclusive): increase from £6.15 to £6.45 per hour;
  • Age 16 or 17 (inclusive): increase from £4.35 to £4.55 per hour; and
  • Apprentice rate:  increase from £3.90 to £4.15 per hour.

4 April 2020

Gender pay gap reports due

This is the date by which all applicable organisations must publish their gender pay gap data for the snapshot date of 5 April 2019.  The report must be published on the Government website and a searchable UK website that is accessible to employees and the public.

5 April 2020

Increases to the statutory rates for maternity, paternity, shared parental pay, adoption and sick pay

Statutory rates usually increase from the first Sunday of April. However, the rates have not yet been announced.

6 April 2020

Increases in statutory payments and Tribunal awards

The maximum compensatory award for unfair dismissals taking effect from 6 April 2020 is expected to increase from its current rate of £86,444. However, the amount of increase has not yet been announced.

A week’s pay (used to calculate statutory redundancy payments and the basic award in unfair dismissal claims) is also expected to increase will also increase from its current rate of £525 (gross) but the amount of increase has not been announced yet.

Written statement of terms

We updated you in our January Blog that all workers, as well as employees, will be entitled to a written statement of terms. The Blog gives you some real detail about what you need to do as an employer.

From April, the written statement will need to be provided at the start of the employment or engagement (not within two months of starting work as is currently the case).

Statements must include a variety of new matters, including information about:

  • which days of the week must be worked;
  • whether or not such hours or days may be variable and, if so, how they vary or how that variation is to be determined;
  • any terms and conditions relating to any paid leave other than holiday and sick leave;
  • any other benefits not covered elsewhere in the statement (which includes both contractual and non-contractual benefits);
  • details of any probationary period (this would in all likelihood include ‘trial shifts’), including conditions applicable to it and its duration;
  • details of any training entitlement, and any part of that training entitlement which is compulsory; and
  • details of any other compulsory training which the employer will not pay for.

Transitional arrangements mean that updated written statements do not have to be issued to existing employees as a matter of course.

Holiday pay

The period over which average holiday pay is calculated for employees without normal working hours, or who have variable remuneration, is being extended from 12 to 52 weeks.

The new legislation does not cover the calculation of holiday pay for workers with “normal working hours” whose pay does not vary. For these workers, case law so far has said that any calculation of what commission and overtime etc. to include in holiday pay should be based on average pay over a “representative” period. In practice, even although the new legislation does not apply to these workers, it might result in Tribunals being more inclined to view 52 weeks as being “representative”.

Agency workers – Swedish derogation

The “Swedish derogation” under the Agency Workers Regulations currently allows employment businesses to avoid pay parity between agency workers and direct employees if certain conditions are met. This derogation will be removed from 6 April 2020. Agencies must inform relevant agency workers by 30 April 2020 that it no longer applies.

In addition, from 6 April 2020 all employment businesses will have to provide agency work-seekers with a key facts statement, before agreeing the terms by which the work-seeker will undertake work. The document must be headed “Key Information Document”, be separate to any other documents provided to the work-seeker, and include specific information. Guidance on the key information document is available here.

Information and Consultation

The Information and Consultation of Employees Regulations 2004 (sometimes referred to as the ICE Regulations), are being amended to lower the threshold of employees required for a valid request to start negotiating an agreement on informing and consulting employees.  The threshold is being lowered from 10% of the workforce to 2% (subject to a minimum of 15 employees).

Parental Bereavement Leave

It is still anticipated that this new right will come into effect in April 2020, but the timing has not yet been confirmed. When it does come in, it will enable parents who have lost a child to take two weeks’ leave.

For further information see our updates here and here.

Taxation of termination payments

Currently, many termination payments in excess of the value of the notice period qualify for a tax exemption up to £30,000.  Payments that exceed this amount are subject to income tax, but no employer or employee NICs are payable.

It is anticipated that from 6 April 2020, Class 1A employer NICs are going to become due (at 13.8%) on the balance over £30,000. There will be no change as regards employee NICs.

Off payroll working – IR35

At present, the IR35 rules apply where an individual (worker) personally performs services for another person (client or “end user”), through an intermediary (usually a personal service company (PSC)).  Currently, it is the intermediary’s (PSC’s) responsibility to determine whether IR35 applies.

Changes to IR35 rules are proposed from April 2020 for medium and large businesses in the private sector which largely mirror those changes in the public sector in 2017. In general terms, under the proposed new regime, the onus would shift from the PSC to the end user client to make a status determination. Responsibility for accounting for tax and national insurance would be on the party who pays for the individual’s services, i.e. the client or end user.

Whilst there has been talk of reviewing the legislation, which may push back the implementation date, we would still advise employers to continue to prepare for 6 April 2020.

For more information on the IR35 reforms in the private and charity sectors see our Blogs here.

Jan – Dec 2020

Employment Bill

According to the Queen’s Speech there will be an Employment Bill later in the year, which is expected to include:

  • a right to request a more predictable contract for all workers (but which will be particularly relevant to those working on variable or zero hour contracts);
  • extending redundancy protections to prevent pregnancy and maternity discrimination;
  • a new right to neonatal leave for parents whose babies require neonatal care after birth and a right to one week’s leave for unpaid carers;
  • the creation of a new single enforcement body for workers’ rights; and
  • the introduction of flexible working ‘by default’, unless employers have good reason not to allow it.

The Queen’s Speech also included references to a national disability strategy. We may see the introduction of a right to request workplace modifications for employees with a health condition that does not amount to a disability as part of this. Such a duty would have significant implications for how employers handle sick and absent employees.

Brexit

If the EU Withdrawal Bill passes and the UK leaves the EU at the end of January, we will not see any Brexit-related employment related changes this year. During the transitional period that ends on 31 December 2020 the UK will continue to apply EU law and CJEU decisions will continue to be binding on UK Courts and Tribunals.

Sexual harassment

The Government carried out consultations in relation to sexual harassment in 2019 (see our updates here and here).

Although it is unclear whether this area is a current political priority, we could see legislation in relation to the use of confidentiality provisions when settling harassment or discrimination complaints and the re-introduction of protection against third party harassment, amongst other things.

Case update (3):  Whistleblowing – There’s a limit

Summary:  Does a worker need to suffer a detriment in the “field of employment” to bring a whistleblowing claim (under the Employment Rights Act)?

Yes, says the Court of Appeal in Tiplady v City of Bradford Metropolitan District Council, available here.  It is not sufficient for the detriment to only affect the employee’s private or personal life.

Facts: The employee, Mrs Tiplady, was employed by the City of Bradford Metropolitan District Council (the Council) as a senior planning officer.  Between 2014 and 2016, she and her husband complained to the Council about a sewer and the construction of a shed at the property they owned. Mrs Tiplady was dissatisfied with the way the Council handled the problem and she lodged a grievance shortly before resigning in October 2016.

Mrs Tiplady brought claims of constructive unfair dismissal and automatically unfair dismissal under the whistleblowing legislation. She also complained that she had suffered sixteen detriments because of having made whistleblowing disclosures.  Most of the detriments about which Mrs Tiplady complained related to the way the Council had handled her sewer and property issues as a householder, and not to her capacity as an employee.

Tribunal and EAT decisions

The Tribunal dismissed Mrs Tiplady’s claims and the EAT dismissed her appeal.

Mrs Tiplady was permitted to appeal to the Court of Appeal, but only in respect of the Tribunal’s finding that whistleblowing protection given to workers is confined to detriment suffered “in the employment field”.  Mrs Tiplady argued that there was nothing in the wording of the legislation that limited the scope of protection to detriment suffered in this field.

Court of Appeal decision

The Court of Appeal also dismissed Mrs Tiplady’s appeal.

The Court agreed with the Tribunal that whistleblowing protection for workers is only given to detriment suffered by the worker in the employment field. Detriment to which a worker is subjected to in their private or personal capacity is not be covered.

The Court went on to consider how a detriment should be recognised as having arisen in the employment field. The Court recommended that Tribunals should try to establish in what “capacity” the detriment was suffered.  In other words, whether the detriment was suffered by the individual as an employee.

The Court considered that this guidance was likely to be the best approach in most cases, but that “the employment field” should be interpreted narrowly and there are bound to be borderline cases.  Accordingly, the Court said this case should not be taken as an attempt to set out definitive guidance.

Implications:  This is helpful clarification that a detriment suffered as a result of a protected disclosure has to relate to the person’s employment.

However, employers should be careful before concluding that a disclosure is not connected to employment, as the relationship between some individuals work and personal life maybe complex, particularly where a worker has dealings with their employer both as a worker and in an alternative capacity.

Data Protection: ICO Data Hub & Subject Access Requests

1. Data Hub

The Information Commissioner’s Office (ICO) has launched a data protection web hub (available here) for small and medium enterprises (SMEs). The hub contains:

  • an assessment SMEs and sole traders can use to measure their businesses’ standard of data protection;
  • FAQs related to data protection;
  • hot topics for small businesses;
  • guidance and tools to aid organisations in completing various data protection related tasks; and
  • information on the data protection fee.

The hub also contains guidance on privacy notices, transparency and control, as well as a guide to the General Data Protection Regulation.

2. Consultation on Subject Access Request Guidance

The Information Commissioner’s Office (ICO) has opened a consultation on its new, more comprehensive, draft guidance on dealing with subject access requests (available here).

The right to make a subject access request, broadly, allows individuals to find out what personal data is held about them and to obtain a copy of that data.

The new guidance ‘explains in greater detail the rights that individuals have to access their personal data and the obligations on controllers’. 

The consultation on this guidance (available here) closes 12 February 2020.

 

Guidance (1): ECHR on sexual harassment

The Equality and Human Rights Commission (EHRC) has issued up-to-date practical guidance (available here), which explains employers’ legal responsibilities and the practical steps they should take to prevent and respond to harassment and victimisation at work.

The guidance also provides advice for workers to help them understand the law and their employer’s obligations to prevent harassment and victimisation, or to respond to their complaint. The guidance also provides employers best practice steps that they could take to prevent and deal with harassment and victimisation.

Case update (1): Discrimination – Are Ethical Vegans Protected?

What do we already know?

In our October 2019 Newsletter Case update (2): Discrimination – are vegetarians protected?, we updated you on the case of Conisbee v Crossley Farms Limited, in which the Tribunal decided that vegetarianism was not a protected belief under discrimination law. The Tribunal’s reasons were that there are a wide variety of different reasons for people to be vegetarian (such as health, animal welfare concerns and dietary preference), which do not reach the level of cogency and cohesion necessary for a philosophical belief.

However, the Tribunal in this case did comment that veganism would be more likely to be protected as:  “Vegans simply do not accept the practice under any circumstances of eating meat, fish or dairy products, and have distinct concerns about the way animals are reared, the clear belief that killing and eating animals is contrary to a civilised society and also against climate control. There you can see a clear cogency and cohesion in vegan belief, which appears contrary to vegetarianism, i.e. having numerous, differing and wide varying reasons for adopting vegetarianism.”

The below Tribunal decision on ethical veganism gives us the opportunity to explore this topic further.

What’s new?

Summary:  Is ethical veganism a protected belief under discrimination law?  :

Yes, says the Tribunal in Casamitjana v The League Against Cruel Sports.

Background:  The Equality Act 2010 provides protection against discrimination which relates to certain listed “protected characteristics” which people may possess. Religion or belief is one of the protected characteristics and is defined as:

  • any religious belief;
  • any philosophical belief; or
  • a lack of belief.

To be protected in this way, a philosophical belief must satisfy the following criteria:

  • it must be genuinely held, although it doesn’t need to be shared by others;
  • it must be a belief, not just an opinion or viewpoint based on the present state of information available;
  • it must relate to a weighty and substantial aspect of human life and behaviour;
  • it must attain a certain level of cogency, seriousness, cohesion and importance;
  • it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others; and
  • it must have a similar status or cogency to a religious belief, but it doesn’t need to allude to a fully-fledged system of thought.

Facts:  Mr Jordi Casamitjana, who is an ethical vegan, was employed by the League Against Cruel Sports (LACS).   An “ethical vegan” is someone who opposes the use of animals by humans for any purpose (whereas a “dietary vegan” is someone who excludes animal products from their diet only).

Upon joining LACS, Mr Casamitjana was enrolled into its pension scheme. However, he later discovered that the pension fund was investing in companies who have been known to engage in animal testing, such as pharmaceutical or tobacco companies.

Mr Casamitjana raised this as an issue to the LACS. However, when nothing changed, he wrote to his colleagues to state what he had discovered. Mr Casamitjana was subsequently dismissed.

Mr Casamitjana brought a Tribunal claim on the basis that his dismissal was discriminatory as it was due to his philosophical belief, veganism.  LACS argues that Mr Casamitjana was dismissed for gross misconduct for a separate matter.

LACS actually conceded that ethical veganism did amount to a protected philosophical belief under the Equality Act 2010. However, at a preliminary hearing, Reading Employment Tribunal decided that despite this concession this was for the Tribunal to determine.

The issue was referred to Norwich Employment Tribunal which found that ethical veganism does constitute a philosophical belief and is a protected characteristic.

Implications: Although this is a Tribunal (first level) decision, and is not binding on other Tribunals, it does give employers guidance in relation to the likely treatment by the courts of ethical veganism.

We would recommend employers to take steps to consider whether their workplace is inclusive for vegans.  For example, whether the products and services they provide are suitable for ethical vegans, such as vegan-friendly food options in the cafeteria. Also, do ethical vegans have opportunity to object (now with protection) to, for example, handling non-vegan goods.

However, it is also important to note that vegans wanting to claim similar protection will have to establish a similar level of philosophical belief in ethical veganism, not just that they are vegan. It is because of the extensive nature of Mr Casamitjana’s belief in ethical veganism as a system of thought, that the Tribunal found it to be protected.

Case update (2):  Employment Status – The Right of Substitution

Summary:  Was a delivery courier a “worker” despite the existence of a contractual right of substitution?

Yes, says the EAT in Stuart Delivery ltd v Augustine, available here.

Background:  To be legally defined as a “worker”, an individual must be obliged to carry out services personally. If the individual has a genuine and unfettered right of substitution, they are not considered to be under such an obligation and will not be a worker.

Facts:   The employee, Mr Augustine, was a motorcycle courier who worked for Stuart Delivery Ltd, a technology platform connecting couriers with clients via a mobile app.

Couriers engaged by Stuart Delivery Ltd provide both “ad hoc” deliveries, when they choose to accept a job via the app, and “slot”’ deliveries.  These deliveries are scheduled during particular time brackets which couriers sign up for in advance and this ensures Stuart Delivery Ltd has couriers available at times of high demand.

Those couriers who sign up for a slot are guaranteed a minimum rate of pay per hour but have to remain in the relevant geographical zone and can only refuse one delivery during the slot. A courier can elect to release a slot he or she has already signed up for and make it available to other couriers to accept (“the release procedure”). However, that courier remains liable for completing the delivery if no-one else accepts the slot and faces sanctions for failing to do so.  Mr Augustine made ad-hoc deliveries and also signed up for slot deliveries.

Mr Augustine brought Tribunal claims against Stuart Delivery Ltd, including claims for unauthorised deductions and holiday pay.  He argued that he was owed these payments as he should be categorised as a worker while carrying out slot deliveries.

Stuart Delivery Ltd argued that Mr Augustine was not a worker, but rather an independent contractor in business on his own account.  This was because he was not under an obligation to perform services personally as his ability to release a slot undermined the obligation of personal performance.

The Tribunal and the Employment Appeal Tribunal upheld Mr Augustine’s claims.  Mr Augustine could not be said to be running a business on his own account and was therefore a worker. That meant he was entitled to benefits, such as holiday pay and the National Minimum Wage.

The courts considered that the release procedure was not an unfettered right of substitution such as to undermine the obligation of personal performance. Mr Augustine had no control over who (if anyone) would accept a released slot, and Stuart Delivery Ltd had the ability to withhold consent to any substitute courier, since it controlled who was accepted into its pool.  There was no right of substitution, merely a right to hope that someone else in the pool would take on the obligation.

Implications: This case clarifies that if employers want to ensure that they engage independent contractors, rather than workers, they should carefully draft their contracts to ensure that a right to substitute is unfettered.   A right to substitute only with the consent of another person, where that person has the discretion to withdraw consent, will not be sufficient.

Further, employers will need to ensure that the contract mirrors the reality, as courts will look carefully at how the right actually works in practice.

January 2020 Newsletter

Welcome to our first Newsletter of 2020.  To help you plan for the working year ahead, this edition provides you with an overview of the main employment law changes for this year.  As a result, it’s a bit longer than usual!

This issue gives you the low down on changes to written terms for all and the taxing topic of IR35.  We also update you on recent guidance from the ECHR on sexual harassment and the Miscarriage Association plus latest from the Information Commissioner’s Office (ICO) to help employers with data protection compliance and subject access requests.

In our first case update of the year we look at whether ethical veganism is a protected belief, the importance of the right of substitution in deciding employment status, and whether detriment claims in whistleblowing cases are limited to the field of employment.

But first, a few items from us:

Changes to our monthly newsletter

We are making some changes to our newsletter.  We’ll be skipping the February issue and instead, from March, you can expect your Menzies Law newsletter during the first week of the month.  Additionally we are trialling a new updated style and format.  Some of you will receive the new version (we await your feedback!), whilst some subscribers will continue to receive the current version.  Thanks for your patience whilst we make these alterations!

Gender Pay Gap submissions

We are now just a few months away from the 3rd year of GPG submissions for organisations of 250+ employees.  Businesses with fewer than 250 employers are now increasingly volunteering to calculate their gender pay gaps for a variety of reasons.   These calculations can create quite a burden in terms of time and resource, so if you need assistance with your calculations and submissions, our Pay & Reward service can help you.

We provide a range of solutions to suit your budget; from a simple ‘sense check’ (reviewing the data you have collected and your calculations) to a full Equal Pay Audit & Assessment.

If you would like to discuss any aspect of our Pay & Reward service, please get in touch with Lindsey Newman in the first instance on 0117 325 0526 ()

Business Immigration advice and guidance from Menzies Law – Brexit and beyond

The Home Office have been increasingly penalising companies for not having the correct processes in place when sponsoring foreign workers. Lack of compliance can lead to your licence being suspended or revoked, which can have serious consequences for the company and workers.

You may employ EU nationals in the UK permanently with pre-settled or settled status (or in the process of applying for it).  You may also have employees working on client projects in the EU from the UK or you’re looking to employ EU nationals who will moving to the UK, possibly with their family.  Either way, ensuring your business is compliant is a vital investment.

Whatever your business immigration issue, we’re able to provide guidance and advice via our specialist business immigration legal partners.  We also have a range of Fixed Fee business immigration products available.  Please get in touch if you’d like to know more or see our business immigration website page for more information.

A roundup of this month’s news: 

 

Case update (3):  Unfair Dismissal – Disclosure of Salary Details

Summary:  Was it gross misconduct to discuss the salary of a senior employee?

No, says the EAT in Jagex Ltd v McCambridge available here.

Facts:  Mr McCambridge, the employee, was employed by Jagex Ltd, the employer.  Mr McCambridge found a visa application for a very senior employee that had been left on a communal printer at work. The application contained details of the very senior employee’s salary.

Mr McCambridge left the document on the printer but later shared the information with three of his colleagues.  Unsurprisingly, word quickly got round and by lunchtime, a group of employees (not including Mr McCambridge) had started up a game of ‘Guess the Executive’s Pay’ where people would shout out a guess and be told if the salary was higher or lower until someone came up trumps.

Word got back to management when two other more senior employees raised the issue of the executive’s pay with their line managers, citing concerns about its effect on staff morale. The employer then commenced disciplinary proceedings against Mr McCambridge on a charge of gross misconduct for ‘unauthorised disclosure or misuse of confidential information’. The employer summarily dismissed Mr McCambridge.

Mr McCambridge brought Tribunal claims for unfair and wrongful dismissal.  The Tribunal found that Mr McCambridge had been unfairly dismissed.  In particular, the Tribunal was unimpressed with the ‘heavy-handedness’ demonstrated by the employer.

The employer appealed.  The EAT upheld the Tribunal’s decision and found that the employer had no grounds to fairly dismiss Mr McCambridge, and instead it was motivated by a wish to ‘make an example’ of him.  The EAT held that:

  • there was no express term in Mr McCambridge’s employment contract which identified salary details as confidential information. Rather the general confidentiality clause in Mr McCambridge’s contract barred him using confidential information for his own purposes (i.e. for self-interest or profit). However, this was mere ‘gossip’;
  • in general, salary is not in itself confidential – there are lots of examples where salary information is in the public domain, in annual reports and in recruitment literature; and
  • the employees had not considered the information to be confidential. For example, they had openly embarked on the salary guessing game.

However, the EAT did refer the case back to the Tribunal to consider whether there should be a reduction in the compensation awarded to Mr McCambridge for contributory fault.  The EAT clarified that the Tribunal had been wrong to conclude that only gross misconduct would lead to such reduction.  Although this was not gross misconduct, Mr McCambridge’s conduct may still meet the contributory fault test of being ‘blameworthy or culpable’.

Implications:  This case highlights that if employers want to keep salary details secret, they need to ensure that the confidentiality provisions in their staff’s employment contracts expressly cover this type of information. They should also publish guidelines for handling confidential information, and make employees aware that breach of these rules is likely to result in disciplinary action, up to and including dismissal.

Case update (1): TUPE – Are workers protected?

Summary:  Are ‘workers’ and not just employees entitled to the benefits of TUPE?

Yes, says an Employment Tribunal in Dewhurst v Revisecatch & City Sprint, available here.

Facts:  Ms Dewhurst, and two others were bike couriers for CitySprint until 31 January 2018, when Citysprint lost their contract with HCA Healthcare. The contract was awarded to ReviseCatch, who engaged the couriers from 1 February 2018.

The couriers alleged that liability for outstanding holiday pay transferred to Revisecatch under TUPE and there had been a failure to inform and consult under TUPE. Therefore, the Tribunal needed to decide if the couriers were caught by TUPE.

The couriers accepted that they were workers under s230(3)(b) of the Employment Rights Act 1996. The Employment Judge was asked to determine whether they fell within the definition of ‘employee’ within Reg 2(1) of TUPE and could therefore benefit from its protection.

Regulation 2(1) of TUPE says the following: “Employee means any individual who works for another person whether under a contract of service or apprenticeship or otherwise but does not include anyone who provides services under a contract for services…”

In essence, the Employment Tribunal found that “or otherwise” makes it clear that TUPE was intended to confer rights and protections on a broader class of individuals than just those employed under a contract of employment and extends the definition of employee to include workers.

This means that such ‘workers’ are afforded the same rights and protections as ’employees’ under TUPE.

Implications:  There has been very little case law on the issue of whether TUPE applies to workers as well as employees.  Therefore this decision is important even though it is only a non-binding decision of the Employment Tribunal.  Particularly in the current climate of heightened awareness of the gig-economy and workers’ rights, with likely further legislation to formalise these rights.

We recommend that even if employers do not at this point start including workers in their TUPE transactions (as it is only Tribunal level), do remain alert to your treatment of workers and be aware of the risk of potential claims.