From GDPR to sexual harassment in the workplace, 2018 was a very busy year for employers. Will employers have a better time of it in 2019?
While workplace practices in relation to data protection and sexual harassment will continue to be main themes, pay, equality, transparency and Brexit will be prominent concerns.
Pay, benefits, and equality
Increases to the wage bill will need to be accounted for and pay transparency will be a high priority for larger organisations.
April will be the busiest time with the annual increase to the National Living Wage and National Minimum Wage (NMW) coming into play. The maximum hourly rate for workers 25 or over will increase to £8.21. While apprentices under 19 will be entitled to £3.90 per hour. Full details of all the age dependent hourly pay increases have been published by the government at www.gov.uk/national-minimum-wage-rates.
The latest increases to pension contributions under auto enrolment will apply, with contributions for both employers and employees set to rise from two per cent and three per cent to three per cent and five per cent, respectively.
Large private and voluntary sector employers with more than 250 employees will need to publish their comparative pay rates for men and women. It is anticipated that the figures are likely to be heavily scrutinised to establish if the reporting is driving the desired results to reduce significant pay differences. The same group of employers will also need to start preparing for CEO pay gap reporting, with the first pay ratio reports likely to fall due in 2020.
With compliance in mind, employers must ensure from April that the new rules around the content of payslips and who must receive one are recognised in their payroll processes.
Finally, pay will also be a hot topic during the year for the courts and employment tribunal but for different reasons. Two areas to look out for will be:
* Equal pay
Several big name retailers are being challenged about their pay practices when it comes to paying male depot staff more than female retail workers. Whilst the work is different, the argument is that the roles have a comparable value, so the pay should be the same. These types of claim are complex and can lead to significant back pay claims, which should stand as warning to employers to ensure staff are paid fairly and equally.
* National minimum wage for sleep-ins
Last year the Court of Appeal decided in the case of Mencap v Tomlinson-Blake that individuals working on sleep-in shifts (e.g. nurses, care workers etc), would not be entitled to NMW for time spent asleep even though they had to be ‘available for work’. Given the impact this decision has on thousands of workers particularly in the care sector, Unison has sought leave to appeal to the Supreme Court, so this is unlikely to be the end of the matter.
Settled status for EU nationals
We could not get away without mentioning Brexit. What seemed certain at the start of December 2018 was the EU settlement scheme allowing EU workers currently living in the UK to apply for the right to stay in the UK indefinitely. However, at the time of writing the exit deal had not been voted on, with the suggestion that in the case of a no-deal scenario there may be stricter requirements for applicants. Hopefully, by the time you read this article there will be greater clarity and certainty for employers and EU nationals.
Workplace disputes do occur and the use of non-disclosures agreements (NDAs) are a commonplace occurrence usually finding their way into settlement agreements. In most cases a balance between commercial and personal interests can be reached. However, the government has decided to bring forward its review of NDAs referring to them as ‘unethical’, with the concern that workplace harassment is being left unchallenged. For the time being there is no change to the law but following the review there may be greater restriction on the use of NDAs, sanctions for misuse and a possible extension to the whistleblowing protection. NDAs are, therefore, another one to watch out for.
By our assessment, 2019 is likely to be equally busy, if not busier for employers when it comes to people management and employment law.
For more information, contact a member of the FG Solicitors team on 01604 871143 or email email@example.com
This time last year the phenomenon of #me too was unleashed to great effect dividing opinion as to the dividing line between harmless flirtation and the far more sinister predatorial behaviour targeting the workplace and subjecting men and women to the unwanted sexual attention that undermines dignity at work.
So many column inches have already been devoted to the #me too commentary that to join the bandwagon of commentators I would consider to be somewhat, me too and so the subject of this article is an attempt to answer a much more mundane question that frequently occupies the thoughts of employers, is it necessary for my employees to sign their contracts of employment and what are the risks to an employer of a failure to obtain that signature?
The simple answer to this question is yes. Obtaining an employee’s signature on a contract of employment will generally go a long way in allowing the employer to demonstrate that the employee agreed with the content, especially where the contract contains terms which may be considered to be detrimental to the employee. A good example of this is where the contract seeks to prevent the employee after the employment relationship has ended from joining a competitor, setting up a competing business, poaching colleagues or interfering with supplier relationships. These terms are generally referred to as Post Termination Restrictions.
Employers often suggest that if an employee continues to work after a contract has been given to them then this is evidence that they agree to and accept the terms, even if they have not signed the written contract that has been given to them. This view is not entirely accurate and is likely only to be valid where the terms contained within the contract have an immediate impact on the employee.
In the case of post termination restrictions the impact on the employee is only triggered after the employment relationship has ended. This is the point at which the employee is likely to say that the reason the contract is unsigned is because they did not agree with its terms. In addition it is common for employment contracts to contain a provision which states that the employee confirms understanding and acceptance of the terms by signature. Such a clause is likely to seriously undermine an employer’s ability to place reliance on the unsigned document.
It is often the case that employees with long service have more than one role within the employer’s business either through promotion or lateral moves. Where this happens employers should always ensure that the change is reflected in new contracts being issued, which are tailored to the new circumstances and that a signed copy is retained on record in the employee’s personnel file.
In summary, there are compelling reasons for employers to ensure that all employees sign their contracts of employment but it is even more important in the case of senior employees whose contracts are likely to contain clauses where the impact is only triggered after the employment has ended.
Where the role or conditions of employment changes issue new contracts that reflect the changed position. A failure to do so may seriously undermine an employer’s attempt to protect its business, especially after the employment has ended. In the land of the contract the signature is king!
For further information or assistance contact a member of the Employment Team at FG Solicitors. firstname.lastname@example.org or 01604 871143
The last thing any business owner wants is a lawsuit. If you’re careful it’s an avoidable business risk, unless you have outdated employee contracts and policies. Then you may be risking one of your employees taking action against your company.
Employment law is continually changing. To protect your company you need to ensure your employee contracts and policies are updated and maintained on a regular basis. At FG Solicitors we specialise in Employment Law and proactively work with our clients to ensure their documents are working for them.
If you want to find out more or get in contact please visit http://www.fgsolicitors.co.uk/hr-review/
Employers regularly market themselves as supporting their staff to enjoy a good work-life balance.
A key factor in employees being able to achieve a balance between fulfilling their employment duties and responsibilities outside work is flexibility in their working arrangements, which usually includes options to take time off, working from different locations or working at different times of the day, week or year. Commercial and financial demands mean that for many organisations a 9 to 5, Monday to Friday working week based in the office can no longer be the norm.
Employers who support their employees in achieving a satisfying work-life balance are also likely to attract and retain high calibre employees, see a reduction in sickness absence levels due to improved employee wellbeing and experience high levels of engagement leading to increased productivity. No doubt advancements in technology have played a significant role in employers being able to offer flexibility, as employees are able to stay in touch with company-provided mobile phones and other electronic devices.
Whilst there are apparent benefits all round, this way of working has its critics who consider that a heavy reliance on company-provided technology to offer flexibility could ultimately undermine the benefits a good work-life balance aims to bring. Several issues have been highlighted. Some individuals may find it difficult to disconnect from the workplace once they have finished work and feel under pressure to respond to calls and emails. Commercial and operational demands may create a management expectation that employees will be available 24/7, resulting in employees having to respond late into the night, over the weekend or even while on holiday. These concerns highlight a blurring of the line between work and home life; critics say this results in staff never having any quality downtime, leading to poor health and stress, a lack of productivity and ultimately the loss of good members of staff. These concerns are all issues that a good work life balance was supposed to address.
Critics appear to have raised legitimate concerns, but what is the answer?
Currently there are no specific British laws which control the use of company-provided devices out of hours. One way forward would be to legislate for the problem in the same way as in France, where a mechanism has been introduced to ensure that organisations with over 50 employees implement arrangements to allow employees to disconnect from digital devices with a view to protecting their rest time, leave and personal life. On balance there is unlikely to be any appetite for similar legal controls here. Already, employers must protect employees’ health by providing a safe system of working and there is more than ever a greater awareness about protecting employees’ mental health. Employers must also comply with the Working Time Regulations 1998. The limitation on working hours, and the right to breaks and annual leave could not be clearer. Employers who fail to comply with their obligations could face sanctions and penalties. Whilst many employees opt out of the 48-hour working week to provide employers with more flexibility, if they are pushed too far they could always opt back in or ultimately resign, alleging constructive unfair dismissal and in some cases discrimination.
Whilst there is already a framework within which employers and employees should be operating to manage legal risk, the critics may have a point as ultimately the use of mobile and digital devices could undermine the desire for improved workplace performance. Some larger global organisations have addressed the issue by introducing tough policies. Volkswagen stopped forwarding emails to company mobile phones between the hours of 6:15pm and 7:00am. Daimler automatically deletes emails sent during annual leave. Each organisation is however likely to need rules that reflect their resources, operational demands and what staff want. Not all staff want to lose autonomy and flexibility and consider that having company provided devices allows them to work more flexibly. The key to a successful policy is clarity around expectations and when employees can or must switch off their devices when away from work.
Given that we are operating in a global competitive market that demands products and services to be delivered 24/7, a total ban on electronic access and communications outside working hours is, for most organisations, unlikely to be possible. Employers instead should consider managing the legal risks and silence the critics by working to create the right balance between employee welfare and their own commercial objectives.
For more information on this topic, please contact a member of the FG Solicitors team on [(01604) 871 143] or email email@example.com.
MR. P JONES –V– FLY LIGHT AIR SPORTS LIMITED
Mr. Jones was employed by Fly Light Air Sports Limited (“The Company”) based in Sywell Aerodrome between 20 July 2006 and August 2017 as a flying instructor.
On 30 July 2017, he raised with his Line Manager and Company Director (“Mr. A”), that the aircraft he usually flew (a November Delta) required its 50 hour service. Mr. A told Mr. Jones that he would personally perform this service with another colleague. However, the next day when Mr. Jones attended work, the service had not been carried out meaning that he had to use another aircraft, Tango India.
Upon leaving the hanger, Mr. Jones passed Mr. A and complained that the requested service had not been performed. He also made what Mr. A interpreted to be a sarcastic comment.
A dispute then arose in front of a client, culminating in Mr. Jones walking away from Mr. A, but calling him a “T@*t” in the process.
Mr. A, enraged by this comment, followed Mr. Jones and the dispute continued.
Mr. A positioned himself in front of Mr. Jones to prevent him walking away again and said “Bollo*ks…don’t call me a “T@*t,” and threw a cup of tea at him, to which Mr. Jones responded by saying “Don’t say Bollo*ks to me or I will fu@!king hit you.” Mr. Jones, realising he had gone too far, immediately made clear he was not intending to hit Mr. A. However, by this stage Mr. A had had enough and stated “Right, I don’t want you flying my aircraft, pack your stuff and leave.”
Mr. Jones, believing he had been sacked, proceeded to pack his belongings in a box, left his keys on his desk and left the Company site. He did not return to work in the following days and no contact was made with him until 3 August 2017 when he was sent a letter inviting him to attend a Disciplinary Hearing scheduled for 21 August 2017 to address allegations of gross misconduct.
Mr. Jones did not attend the Disciplinary Hearing, but received an outcome letter stating that the Hearing had gone ahead in his absence and that he had been dismissed without notice for gross misconduct, specifically serious insubordination in that he called a Company Director a “T@*t” and threatened to hit him.
THE CLAIMS BROUGHT BY MR. JONES
Following the incident on 1 August 2017, Mr. Jones brought two claims in the Employment Tribunal:
- A claim for unfair dismissal; and
- A claim for wrongful dismissal.
In summary, a claim for unfair dismissal arises when an employee believes they have been dismissed by their employer and the decision falls outside the band of reasonable responses open to the employer in the circumstance because: (1) they were dismissed without a fair reason; and/or (2) they were dismissed without the employer having followed a fair process.
A claim for wrongful dismissal is a claim for breach of contract. The reasonableness of the employer’s conduct or otherwise is irrelevant for a wrongful dismissal claim; the Employment Tribunal simply has to consider whether the employer’s conduct has breached the Contract of Employment between the employer and the employee, i.e. whether the employee’s conduct was so serious that it would entitle the employer to treat the employment contract as terminated without notice.
THE IMPORTANCE OF FOLLOWING FAIR PROCEDURE
The first thing the Employment Tribunal had to decide in this case was the date of dismissal.
Mr. Jones claimed he was dismissed on 1 August 2017 when Mr A said, “Right, I don’t want you flying my aircraft, pack your stuff and leave.” However, the Company argued that he was not dismissed until after the Disciplinary Hearing had concluded on 21 August 2017.
The Employment Tribunal found that it was reasonable for Mr. Jones to consider himself dismissed on 1 August 2017 in the light of the comment made to him, and because numerous employees witnessed him pack his belongings in a box, leave his keys on his desk and leave site, but no one made any contact with him until 3 August 2017 to tell him that he was not dismissed, but was in fact suspended pending a Disciplinary Hearing.
The Tribunal went on to find that the conduct of Mr. Jones in calling a Company Director a “T@*t” and threatening to hit him, all of which was admitted by Mr. Jones, amounted to gross misconduct BUT found that the dismissal was “INEVITABLY UNFAIR” because a fair procedure was not followed leading up to the decision to dismiss. Employment Judge G. P. Sigsworth stated “because there was no procedure for the dismissal on 1 August 2017, and a fair procedure is an essential part of a fair dismissal, the dismissal is inevitably unfair.” He added that the Company’s actions taken after 1 August 2017 when it: (1) wrote to Mr. Jones setting out the allegations against him; (2) convened a Disciplinary Hearing on reasonable notice; (3) offered him the right of accompaniment at the Hearing; and (4) offered him the right of appeal against the decision taken at the Hearing, were too late.
Judge G. P. Sigsworth made clear that, even considering the small size of the Company (it only had six employees at the time of dismissal) and its lack of experience in HR matters, this did not negate the requirement to conduct a fair process when issuing a disciplinary sanction, which must include complying with the ACAS Code of Practice on Discipline and Grievance (“ACAS Code”).
Judge G. P. Sigsworth also found that Mr. Jones had been wrongfully dismissed as even though there had been misconduct on his part, his conduct had not amounted to gross misconduct entitling the Company to treat the employment contract as terminated without notice.
Judge G. P. Sigsworth considered that if a fair procedure had been followed, there was a 25% chance that a fair dismissal would have been achieved – on this basis he reduced the compensation awarded to Mr. Jones to reflect this (“Polkey Deduction”).
He also considered that Mr. Jones contributed to his dismissal by his actions, and made a 50% Contributory Fault deduction.
Finally, as the Company failed to follow the ACAS Code, a 20% uplift was made to the damages awarded.
In total, Mr. Jones was awarded a Basic Award and a Compensatory Award amounting to £19,017.62. He did not received a separate award for the loss of his notice as it was ruled that this had to be set off against Basic and Compensatory Awards.
The lesson to be learned from this case is that all employers, no matter how small and no matter how much provocation is involved, must follow the ACAS Code as failure to do can be a costly mistake.
For help and assistance with disciplinary and grievance matters, please contact a member of the FG Solicitors team on (01604) 871 143 or email firstname.lastname@example.org.