Love Your Business
At FG Solicitors we believe that loving your business is about giving it the best chance to succeed in growing its profitability, reputation and becoming a leader in its field.
When you think about what you love about your business it could be your client base, your exemplary products and services or your innovative approach to driving and developing the business, but what about the building blocks of the business?
No matter what you do or how you do it, loving your business starts with building excellent HR infrastructure, developing and nurturing a strong and dynamic workforce, and leading that workforce with confidence and efficiency.
How FG Solicitors can help
At FG Solicitors we are experts in employment and HR Law and Solutions. We offer a range of services for all sizes of business to help you LOVE your business all year round —
• Advice and Support regarding all employment law matters
• Business Health Check / Audit
• HR and Legal Awareness Training
• HR and Legal Consultancy
• Development and maintenance of HR Infrastructure
• Resolving Employment Disputes
• Health and Safety Review and Policy Development
• Corporate Immigration
In terms of legal opinion on which others may place reliance it is often advisable to do away with the needle of innuendo and pick up the club of statement. In line with that adopted position, you are invited to consider the implications of the impending arrival of the General Data Protection Regulations (“GDPR”).
As the regulations have their origins in EU law, an immediate question is will they survive Brexit? The short answer is that even if the regulations do not survive intact post Brexit, the Government has confirmed that the UK will implement the GDPR when it comes into effect on 25 May 2018 because the UK will still be a member of the EU at that time.
The GDPR heralds the biggest shake up in privacy laws in 20 years and will have a seismic impact on the human resource data processing undertaken by employers and employment related entities.
There will be some fundamental changes to the current law and it is suggested that organisations need to be aware of those changes and should be actively developing a strategy for compliance ahead of the changes coming into effect in May 2018. This is especially because the cost for GDPR non-compliance has risen dramatically when compared to non-compliance with current data protection legislation, as the new fines will be based on a percentage of total annual turnover of a business in the previous financial year. It will become easier for individuals to claim compensation and group actions will be more likely.
THE KEY CHANGES…
As a minimum, the key changes for staff engagement purposes include:
Consent: No longer will it be sufficient to include in Contracts of Employment a blanket clause stating an employee is deemed to give consent to the lawful processing of their data. Instead, organisations will be obliged to demonstrate that consent has been explicitly given for each processing purpose of the data in question. Furthermore, the organisation will need to demonstrate the consent was freely given (potentially difficult in the master/servant relationship which is employment) and that the consent is “informed.” Also, the organisation will need to implement a mechanism for the withdrawal of such consent at any time.
Subject Access Requests: The information to which data subjects will be entitled under the GDPR is more extensive. The time for providing that information is reduced from 40 days to one month and there will be no longer be a right for organisations to charge a fee to provide this data.
Right to Erasure: Also known as “the right to be forgotten,” this is a new right where individuals can request that their personal data is permanently deleted in certain circumstances. This will cause organisations particular difficulties where personal files are held both centrally and locally (for example, by a line manager).
Right to Restriction: There are instances when organisations are obliged to restrict processing; this includes employee challenges to the accuracy of personal data. This could result in certain management processes being stalled.
Breach Notifications: Unless the breach is unlikely to result in a risk to the individuals concerned, organisations’ data processers will be obliged to notify the ICO of all data breaches without undue delay and, where feasible, within 72 hours of the breach.
DO WE NEED TO DO ANYTHING YET??
Organisations could be forgiven for thinking that, as the GDPR implementation date (25 May 2018) is still the best part of 12 months away, and with Brexit looming, the matter can be left for now. But compliance with this legislation will require a good deal of planning and remapping of existing processes. The immediate steps for any organisation include:
- A comprehensive audit of existing systems and processes;
- Deciding whether additional personnel should be recruited to take on specific roles and responsibilities;
- Designing systems that will assist with GDPR compliance (including breach notification compliance);
- Identifying appropriate training for staff – for example, general awareness training for staff with more specific training for those with greater compliance responsibilities (including the IT Department and HR managers); and
- Reviewing and upgrading current Contracts of Employment and policies to manage risk.
We can undertake your audit and assist you with preparation for GDPR implementation. For a non-obligation consultation, please call a member of our team on 01604 871143 or email us on firstname.lastname@example.org
The power of punctuation is alive and well, and proof if it were needed that the devil is always in the detail!
It would appear that the media have, over the past few days, encouraged a view that banning the wearing of Muslim headscarfs by women in the workplace is now lawful. While this is not quite “Fake news on a Trumpian scale,” it cannot be considered an accurate statement of the law either.
The igniter for these headlines is the recent European Court of Justices’ (“ECJ”) decision in the case of Achbita. In short, the case concerned a Belgian Company’s dress code that prevented employees from wearing any visible religious, political or philosophical symbols. The dress code was used as a basis for preventing a Muslim employee from wearing an Islamic headscarf while at work. The Court decided that, as the dress code applied to all religions, Ms Achbita was not treated less favourably on the grounds of her race.
Before we begin basking in the euphoria of premature conclusions that a blow has been struck for common sense, it is worth noting that the Court, unprovoked, added that it was possible for this position of neutrality adopted by the employer to be indirect discrimination.
By way of example, if Ms Achbita had not been a customer facing employee, preventing her from wearing her headscarf at work may amount to discrimination if the employer could not objectively justify the ban.
Employers need to be alert to the fact that although having a dress code prohibiting the wearing of all religious symbols in the workplace may provide a defence against a claim of direct discrimination, it will not by itself defeat all discrimination claims associated with the wearing of religious symbols. It is also worth noting, although outside the scope of this article, that if the dismissal was because of Ms Achbita’s insistence on wearing her headscarf in a customer facing role, exploring whether she may be placed in a non-customer facing role may affect, under English Law, the fairness of the employer’s decision to dismiss.
Consider for instance the case of Bougnaoui, here the ECJ decided that it was unlawful for an employer to accept a customer’s request not to be served by an employee wearing an Islamic headscarf. The Court did not consider the wishes of a customer to be a “genuine and determining occupational requirement,” which would have justified the discrimination.
There will always be a balance to be struck between the interests of the employer and the detrimental impact on the employee. In the case of Bougnaoui the ban amounted to direct discrimination because it was imposed in response to a customer’s objection rather than being based on any existing dress code designed to achieve neutrality.
As a general approach, employers should treat employees’ requests to circumvent a dress code for religious reasons carefully, sensitively and respectfully; and should consult with the employees with a view to reaching a satisfactory solution. This may very well prevent an employer from having to defend itself against such claims.
And so it was that the final race of the F1 Calendar 2016 brought into sharp focus the controversy between Lewis Hamilton, three times world champion, and his employers Mercedes Benz as a result of the driver refusing to obey instructions to increase his speed during the race.
At first blush, it seems perverse that a racing driver needs to be told to drive faster during a race as adopting a purposive approach, the job is to drive as fast as you can with the aim of winning races.
In this particular case however, Hamilton was already winning the race and there appeared little risk that the result was in jeopardy. The issue was around the coveted world championship title as F1 aficionados will be only too well aware. Hamilton, being some nine points behind his team mate and only rival for the championship Nico Rosberg, could only win the world championship if his rival did not finish in at least third place.
Disciplining Hamilton for driving as he did in Abu Dhabi is akin to disciplining him for trying to win the world championship which seems perverse.
Employees who wilfully disobey the lawful and reasonable instructions of their employers leave themselves open to the risk of disciplinary action, which can include dismissal. Even without the benefit of actually seeing Hamilton’s contract of employment it is a safe bet that it will include provisions about the driver agreeing that he will obey team principal instructions and will possibly define the sanctions for failing to do so. Even in the absence of those written provisions, the law will imply a term into the contract that an employee will carry out all lawful and reasonable instructions of an employer. The interpretation of those three words is key to the extent to which Mercedes can discipline Hamilton for what was a clear defiance of express instructions.
Firstly, the instructions must be lawful, this can be interpreted to mean contractually sound as it goes without saying that illegal instructions do not have to be obeyed. In addition, the instruction must also be reasonable. This is where Hamilton may have some wriggle room. If he simply drove as fast as he could without any tactical or strategic application, he would no doubt win the race as he in fact did, but would certainly have lost any chance of achieving a fourth world championship title; a fact that would have been known to his team bosses.
Taking everything in the round, a view that tactical and strategic application is a team effort would not be unsound, but in reaching that view it must also be the case that the team outside of the car provides advisory information to the driver who then interprets and acts upon it. This margin of discretion afforded to the driver would logically cast doubt on whether an instruction to speed up would in the specific circumstances of this case be reasonable. This was certainly echoed by Hamilton’s pained utterance on receiving the instruction “Why can’t you just let us race?”
If your business has a “Lewis Hamilton” and you need some help or advice, contact FG Solicitors.
Call: 01604 871143 or E-mail: email@example.com
This update is for general guidance only and does not constitute definitive legal advice.
SUMMARY: A failure to address gender pay gaps can create both financial, legal and reputational risk for employers. We answer some frequently asked questions about equal pay.
Do we have to pay men and women the same?
The law provides that men and women should be treated equally when doing “equal work”. This means men and women must be treated equally in relation to their terms and conditions of employment if they are employed to do:
- like work. This means work that is the same or broadly similar;
- work rated as equivalent under a job evaluation study; and
- work found to be of equal value in terms of effort, skill or decision making.
In order to establish if there is equal treatment or otherwise, there will need to be a comparison of the terms and conditions enjoyed by a member of the opposite sex working for the same employer, doing like work of equal value.
Employers should not forget that the equal pay law protects men too. Women who are pregnant or on maternity leave have special rights when it comes pay, benefits and bonuses.
Is there any way of defending an equal pay claim?
It is open to an employer to defend a claim if it can show the reason for the difference is due to a genuine factor and is not based on the sex of the employee. Common factors would include a difference in geographical location, experience or qualifications.
Is it just pay that we have to ensure is equal?
The equal pay law covers all aspects of pay and benefits including:
- basic pay;
- contractual benefits, i.e., company cars;
- holiday pay;
- hours of work;
- non-discretionary bonus payments;
- non-monetary benefits;
- pension benefits and access to pension schemes;
- performance related pay and benefits, overtime rates and allowances; and
- sick pay.
The following areas would not be covered by the equal pay law but could be challenged under the sex discrimination law:
- discretionary bonus payments;
- discretionary pay increases;
- promotion; and
- the terms of a job offer.
To avoid the risk of equal pay claims we are considering banning staff from talking about how much they get paid?
Whilst employers are able to impose some restrictions on their staff about discussions concerning pay, any ban on this type of discussion would be unenforceable, if the purpose of the discussion is to identify if there is unlawful pay discrimination. This means a gagging clause in a contract of employment will not be effective if its aim is to prevent this type of discussion.
Any disadvantage including dismissal suffered by the employee as a consequence of their disclosure about pay for the purpose referred to above will be unlawful victimisation.
Do we have to respond to a request from a member of staff asking for information about pay differences?
A person who thinks they may have an equal pay claim may submit questions to the employer to help them determine whether they have such a claim. An employer is not legally obliged to respond. Before making the decision not to respond, an employer needs to be aware that an employment tribunal can take into account any response, or lack of response as a contributing factor when considering the issue of discrimination.
An employer faced with a request for information will need to consider carefully the nature of any response it chooses to provide and any decision not to respond. In any event, if legal proceedings are commenced the employment tribunal may order the information to be provided.
Acas has provided guidance on the question and answer process – Asking and responding to questions of discrimination in the workplace.
Should we be aware of any additional legal requirements?
It is expected from October 2016 private and voluntary sector organisations with more the 250 employees will be required to publish information about the pay differences between men and women. The first reports will have to be published by April 2018.
These requirements do not apply to the public sector.
If we lost an equal pay claim, what are the sanctions?
Any claim by an employee can be brought during their employment or no later than six months after their employment has ended. Any individual wishing to issue a claim would have to contact Acas to consider conciliation.
A successful employee would be entitled to:
- a declaration that their rights have been breached;
- payment of any arrears (in the case of pay); or
- damages (in the case of a non-pay contractual term).
In most cases arrears of pay can go back up to six years before the date the claim was brought.
Any employer who loses any case in the employment tribunal can now be ordered to pay a financial penalty of between £100 and £5,000, which is payable to the government.
In some cases, a losing employer will be required to carry out an equal pay audit and publish its findings supported by a plan to avoid breaches occurring or continuing. The penalty for failing to carry out the audit is up to £5,000.
If you would like more information on good equal pay practices with a view to engaging with your workforce and to minimise the risk of claims, please contact:
+44 (0) 808 172 93 22
This update is for general guidance only and does not constitute definitive advice.
SUMMARY: Learn more about settlement agreements with the answers to some of the most frequently asked questions.
Q: When can we use a settlement agreement?
A: Settlement agreements are often used to resolve workplace disputes, and to give the employer the certainty that once the agreement is signed there will be no subsequent employment tribunal claim from a disgruntled employee. More often than not, the employment relationship will have broken down. The focus then is usually on avoiding unfair dismissal and discrimination claims. A whole raft of statutory employment rights and breach of contract claims can also be compromised.
There does not necessarily need to be a dispute as settlement agreements can be used in a variety of other circumstances where the employment will end. For example, where there are performance or ill health issues, a voluntary exit or a restructure.
Settlement agreements are not however always about the employment relationship ending, as they can be used at any time during the employment relationship to resolve workplace disputes. For example, if there has been a complaint about how holiday pay has been calculated.
We would recommend that where a settlement agreement is being contemplated, legal advice is taken before any discussions take place with the employee so that any legal risks are identified and then can be properly managed.
Q: What are the benefits of using a settlement agreement?
A: A settlement agreement allows an employer to manage legal, commercial and reputational risks all in one go in the knowledge that there will be no tribunal claim. Significant management time, stress and expense can be saved.
Terms can also be agreed on issues that a tribunal would be unable to address. For example, the offer of a positive reference; or the introduction of post termination restrictions, where the existing contract is silent on the employee’s activities once they have left.
Settlement can also keep a dispute out of the public eye and be subject to strict confidentiality provisions.
These benefits need to be balanced with the fact the employee will want something in return, no matter how at fault they may be. Money is usually the main consideration but the circumstances may dictate an entirely different exit package. There are also restrictions on an employer’s ability to compromise personal injury and accrued pension rights claims.
Q: Are there any essential requirements which need to be complied with to make the deal binding?
A: The following are essential to ensure that the employee is not able to bring an employment tribunal claim:
- The settlement agreement must:
- be in writing;
- identify the complaints to be compromised; and
- state that it satisfies certain legal requirements.
- The employee must also have received independent legal advice.
A poorly drafted agreement or one which has been incorrectly signed may leave the door open for an employee to bring a tribunal claim, even if they have already been paid a sum of money.
Q: How long should we give an employee to consider a settlement agreement?
A: An employee should generally have at least 10 days to consider the settlement agreement and obtain legal advice. A shorter period could lead to allegations of undue pressure, permitting reference to the settlement offer in a subsequent tribunal claim, if settlement is not reached.
If there is a commercial imperative requiring a shorter period, legal advice should be taken.
Q: Do we have to pay for the employee’s legal advice?
A: An employer is not obliged to pay the employee’s legal costs. To get the job done, an employer will often choose to make a contribution. A good starting point is £250 plus VAT. The following factors may demand a higher contribution: locality, seniority of the employee and the complexity of the case.
Q: Can we recycle a settlement agreement used in the past for a different employee?
A: We would caution against recycling for two reasons:
- Each employee’s circumstances are different; and these circumstances need to be taken into account in the agreement. A one size fits all approach will not provide the employer with the best possible protection; and may give no protection at all.
- Any changes to the law may require amendments being made to the agreement.
If you would like to explore whether a settlement agreement may be the best option for your business where you have a workplace problem – please contact:
+44 (0) 808 172 93 22
This update is for general guidance only and does not constitute definitive advice.
On Sunday 10th April the Sunday Times published their first supplement listing the Top 175 Solicitors in the UK based on reviews on the independent consumer ratings website VouchedFor.co.uk. We are proud, but not at all surprised, to say that Floyd Graham was featured.
To be included Floyd was highly recommended by 11 of his clients. All had rated his services over 4 stars out of 5, which is a fantastic achievement. We’d like to thank all of the clients who took the time to share their positive feedback on VouchedFor.co.uk.
Comments – Adam Price, Founder of VouchedFor.co.uk: “At VouchedFor we’re passionate about helping people find great financial and legal advice. At certain points in life the majority of us would benefit from expert help with complex issues such as pension planning, securing a mortgage or for advice on a legal issue. Listing professionals alongside verified reviews from their existing clients makes it easy to find a respected and trusted expert like Floyd to help. We would like to congratulate Floyd on being one of the Top 175 – it’s a great endorsement of the service Floyd provides.
You can see his reviews by going to:
SUMMARY: HSBC has announced it is cutting 8,000 UK jobs in a global reorganisation. There is no doubt that planning has been undertaken for such large scale redundancies, but what are the key steps that any business should take when making redundancies?
HSBC recently announced that as part of a global reorganisation, it will axe 8,000 jobs in the UK. Many businesses will have to make redundancies at some point, whether it is part of a reorganisation or a site or workplace closure. What are the key steps an employer should take when making redundancies?
- Ascertain the current situation – conduct an audit
Before taking any decision about embarking upon redundancy consultation, an employer needs to understand its current structure and terms and conditions of employment by conducting an audit. In particular, it should consider the following:
a) Does it have an up to date organisation chart?
b) Does it have up to date contracts of employment for all employees?
c) Are all employees’ job descriptions up to date?
d) What are the terms of the contracts of employment? In particular, what notice period are employees entitled to receive from the employer?
e) What length of service do employees have? Employees with less than 2 years’ service are not entitled to a statutory redundancy payment and generally do not have a right to bring a claim for unfair dismissal.
f) What age are employees? This is relevant for calculating any statutory redundancy payments.
g) Is there a collective agreement with a trade union and does it include provisions relating to redundancy?
h) Check policies and procedures are up to date and particularly consider whether there is any policy on the process for redundancy consultation and how much employees may be paid when they are made redundant. There may be an enhanced redundancy pay scheme, which entitles employees to be paid more than statutory redundancy pay.
- Consider the reasons for making redundancies
The employer must have a strong rationale for making redundancies and it is sensible to set this out in writing in the form of a proposal. The reasons must relate to:
a) business closure (closure of the business altogether);
b) workplace closure (closure of one of several sites, or relocation to a new site); or
c) diminished requirements of the business for employees to do work of a particular kind (this is generally the reason for a restructure).
It is usually easy for an employer to demonstrate the first two reasons, but the third reason may require some further exploration and gathering of information to support it.
- Identify the pool for selection
A pool is the group of employees from which an employer will select those who are to be made redundant.
Before selecting an employee or employees for dismissal on grounds of redundancy, an employer must consider what the appropriate pool should be. Where the employer recognises a union, it will usually be expected to discuss the choice of pool with the union. A pool can be made up of one person in some cases.
Carefully identifying the pool for selection is likely to be most important in cases where there are diminished requirements for employees to do work of a particular kind.
If an employer is unsure what an appropriate pool for selection would be, we can assist in identifying this.
There are two types of consultation; collective and individual. Individual consultation must always be carried out, even if collective consultation is carried out. Collective consultation obligations (in particular the length of the consultation period) depend on the number of individuals to be made redundant.
In the case of HSBC, it is likely that it will need to carry out collective consultation which must be carried out if an employer proposes to make redundancies of 20 or more employees within a period of 90 days or less. This is one of the reasons it is key for an employer to establish how many redundancies it is proposing to make before starting consultation.
Although there are various steps an employer will need to follow when carrying out consultation, one essential criterion, whatever the type of consultation, is that an employer can show that the consultation is meaningful.
Minimum areas consultation should cover
In all redundancy situations, consultation should cover as a minimum the following areas:
a) the reason for the proposed redundancies;
b) the proposed pool for selection;
c) the method of selection (eg. objective selection criteria); and
d) ways of avoiding redundancies.
If consultation obligations are not satisfied, employers risk potentially expensive unfair dismissal claims being brought against them and/or a requirement to pay significant financial awards (known as protective awards) of up to 90 days’ gross pay per employee for failing to collectively consult.
Before starting consultation, we suggest an employer considers the following:
a) The number of employees to be made redundant.
b) Where those employees are based (i.e. are they at one site or different sites?)
c) Whether there is a recognised trade union.
d) Whether there is a collective agreement with a trade union containing obligations relating to collective consultation.
e) Whether there is a need to elect employee representatives (which may be necessary to satisfy collective consultation obligations).
f) What the timeframe is likely to be for the consultation period prior to making redundancies.
We suggest that employers seek legal advice if they intend to dismiss by reason of redundancy, so that an appropriate process can be followed to avoid a claim of unfair dismissal and/or a claim for a protective award. Our advice will be most effective if an employer has already carried out the suggested steps in “ascertain the current position” above; we can assist an employer in carrying out these steps and conduct an audit of existing documents.
For more details about how to carry out redundancies please contact:
+44 (0) 1604 871143
This update is for general guidance only and does not constitute definitive advice.
SUMMARY: Employment Appeal Tribunal upholds the decision that an employee with a depressive and anxiety disorder did not have a disability.
Legally, an employee is considered to have a disability if they have a physical or mental impairment which has a substantial long-term adverse effect on their ability to carry out normal day-to-day activities.
This is a fairly wide definition and due to its specific reference to “mental” impairment”, can include depressive and anxiety-related impairments. However, if there is doubt as to whether an employee has a disability, the definition is considered in detail by an employment tribunal. The tribunal will analyse whether all the parts of the definition are satisfied, which is an activity which the tribunal had carried out in this case.
Part of considering whether the impairment constitutes a disability includes considering the effect on the employee’s ability to cope in their job.
If an employee is disabled, this will have implications for an employer, including a duty to make reasonable adjustments for the disabled employee.
Facts of the case
In the recent case of Mr R A Saad v University Hospital Southampton NHS Trust and Health Education England Mr Saad had a depressive and general anxiety disorder.
The employment tribunal held that Mr Saad was not disabled because although he had a mental impairment, this did not have a substantial adverse, nor long-term, effect on his ability to carry out normal day-to-day activities.
The employment tribunal considered Mr Saad’s evidence to be unsatisfactory as to the effect of the impairment on him. It noted that his oral evidence qualified, or contradicted, his earlier evidence as to the effect of his impairment on his day to day activities.
Mr Saad appealed this decision to the employment appeal tribunal (EAT). One of his arguments was that the tribunal had not considered his ability to communicate with colleagues, access the work-place and concentrate. Amongst other things, he referred to his inability to read two medical textbooks.
The Employment Appeal Tribunal’s (“EAT’s”) decision
The EAT upheld the tribunal’s decision that Mr Saad was not disabled. The EAT considered that the tribunal had considered the impact on his workplace-related activities including his ability to communication with colleagues, access the work place and concentrate.
What does this mean for employers?
Although in this case it was decided that the depressive and anxiety disorder was not a disability, it is clear that such a disorder can be a disability in some cases. Each case depends on the specific circumstances of each employee. In this case, the employment tribunal had concerns about the quality of the employee’s evidence but in other cases, an employee may give more compelling evidence as to the effect of a mental or physical impairment on his day-to-day activities.
When managing sickness absence, including mental impairments, employers should seek medical evidence and legal advice, especially if there is any uncertainty as to whether there may be a disability.
For more information about this case or managing sickness absence, please contact:
+44 (0) 1604 871143
This update is for general guidance only and does not constitute definitive advice.