Category Archives: News

Can wilful disobedience of an employers’ instruction ever be justified?

6fnZXAevDtAWTRWV9Js6picIAnd 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:

This update is for general guidance only and does not constitute definitive legal advice.

2017: Looking Ahead to Changes in Employment Law

FG_ImageBy the time you read this the turkey will have been eaten, Christmas trees returned to storage or recycled, Christmas jumpers packed away and New Year’s resolutions very likely broken. However, with confidence amongst businesses reportedly riding sky high, employers have plenty to look forward to in 2017!

Undoubtedly the big news of the year will be the unveiling of whether “Brexit means Brexit,” and employers could be forgiven for thinking there is little else on the horizon in the people management department for the year ahead. Not so – there is plenty to keep employment law and HR Practitioners busy.

2017 heralds a number of changes. One such change is the introduction of a tax free childcare scheme to replace the current system whereby employers can provide employees with childcare vouchers. The new system will allow working families to claim 20% of qualifying childcare costs for children under 5 (and for disabled children under 17) up to a maximum of £2,000 per child per year. To be able to benefit from the scheme, the general rule is that both parents in the household must earn at least £50 per week. However, if one parent is an additional rate taxpayer, the family will not be eligible.

The gender pay gap reporting regulations are scheduled to come into force in April 2017 with the aim of closing the pay gap between male and female employees. The regulations apply to large private and voluntary sector employers with more than 250 employees, and will require employers to annually publish figures showing the average hourly pay of male and female employees, pay gaps at different levels of seniority within the business and information about bonus payments over a 12 month period.

The gender pay gap report must be published on the employer’s own website and a Government sponsored website. The first reports do not have to be published until April 2018. However, employers should begin their preparations now by initially identifying if they are likely to be caught by the regime, and if so by conducting a provisional audit to establish any areas of concern. The Government will produce guidance to assist employers with compliance in due course.

In addition, the Government plans to introduce an apprenticeship levy in April 2017, which will change the way apprenticeships in England are funded. This will require all employers with an annual wage bill of more than £3 million, to invest in apprenticeships by paying 0.5% of their annual wage bill (minus an annual levy allowance of £15,000) towards the cost of apprenticeship training. The employer will then be able to access funding for apprenticeships through a new digital apprenticeship service account. The Government is also considering introducing an “Institute for Apprenticeships” tasked to ensure apprenticeships are of high quality.

Additionally, the National Living Wage rate will be reviewed in April 2017. It is anticipated this will increase from the current rate of £7.20 per hour to £7.50 per hour in line with the recommendations of the Low Pay Commission.

Overall, we predict that 2017 will be a busy year in employment law and HR matters. Employers should ensure they are fully briefed and are fully prepared to save being caught by surprise!


If you would like more information about planned changes for 2017 or would like to discuss a specific concern in relation to your business, please contact us:

Call: (01604) 871143 Email:

This update is for general guidance only and does not constitute definitive legal advice.

Take a Note: Workplace Dress Code Policies

Dress Codes - Avoiding Discrimination Claims

SUMMARY: Readers may remember that, last year, Emily Blunt criticised the Cannes film festival when a woman was denied entry to a screening for wearing flat shoes and that in May of this year it was reported that a woman was sent home from work after refusing to wear high heels. With recent statistics showing that women are buying more trainers than high heels it may be fair to assume that flat shoes are replacing heels as the woman’s shoe of choice. But how does this impact on the workplace and how might organisations deal with, what might be termed, more casual attire being worn by its employees? This is where the use of a dress code policy comes into play. For those employers considering the implementation of a dress code policy we have set out below five key considerations which should be taken into account when deciding the dress code that best suits your organisation’s requirements.

Workplace Dress Code Policies

  • Make dress codes relevant to roles – consider the reasons behind the code.
  • Ensure the code is non-discriminatory, applying equally to men and women. Different standards of dress can be identified as long as the standards, for example for males and females, are equivalent and applied equally.
  • There could be a requirement to cover tattoos and body piercings if there is a sound business reason for this e.g. a customer facing role.
  • Workers may want to wear items that manifest their religious faith e.g. a hijab or kippah. It may be possible to restrict this, but there could be discrimination issues – seek legal advice!
  • The dress code should be in writing and communicated to all staff. Consultation would help to increase overall adherence.


For more details about workplace dress code policies, please contact:

+44 (0) 1604 871143

National Minimum Wage Increases


SUMMARY: The government has announced that from 1 October 2016 changes to the National Minimum Wage will come into effect.


The following changes to the national minimum wage will take effect from 1 October 2016:

1 April 2016 From 1 October 2016
National Living Wage £7.20


Standard Adult Rate £6.70


Development Rate £5.30


Young Workers Rate £3.87


Apprenticeship Rate £3.30




This rate applies to workers aged 25 or over.


This rate applies to workers aged 21 or over.


This rate applies to workers aged between 18 and 20 inclusive.


This rate applies to workers aged below 18 but above the compulsory school age but who are not apprentices.


This rate was introduced in October 2010 and applies to all apprentices under 19 years of age or those aged 19 and over but in the first year of their apprenticeship.


For more details about the national minimum wage changes please contact:

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.

Making Redundancies – Key Principles

Redundancy Policies

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?

  1. 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.

  1. 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.

  1. 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.

  1. Consultation

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.

Pre-consultation enquiries

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.

Contact Details

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.

Time to share… Are you ready?

'Time to share...Are you ready'
SUMMARY: Our briefing note tells you how to get to grips with the basics on Shared Parental Leave.

What is the new Shared Parental Leave (“SPL”) regime?

SPL is a new legal entitlement for eligible parents of children due to be born on or after 5 April 2015, or who are placed for adoption on or after 5 April.  It gives both parents the opportunity to consider the best leave arrangements to care for their child during the child’s first year with their family.

Does SPL replace normal family friendly leave?

The entitlement to statutory maternity, paternity and adoption leave will remain. SPL is an optional entitlement which parents can choose to take.

In order to trigger SPL, the mother will however need to have curtailed or given notice to reduce their maternity/adoption leave (or pay/allowance if not eligible for maternity/adoption leave).

Do we have to offer SPL to all our staff?

The right to SPL is not automatic; a parent must satisfy stringent eligibility requirements and opt to take it.

Who is eligible to take SPL?

There are four elements to identifying who is eligible for SPL:

First element

The mother must:

  • have a partner;
  • be entitled to maternity/adoption leave; or to statutory maternity/adoption pay or maternity allowance; and
  • have curtailed, or have given notice to reduce, their maternity/adoption leave (or pay/allowance if not eligible for maternity/adoption leave).

Second element

A parent who intends to take SPL must:

  • be an employee.  A self-employed parent will not be entitled to SPL but if they pass the employment and earnings test (see below), their partner, if an employee, may still qualify for SPL;
  • share the primary responsibility for caring for the child; and
  • have properly notified their employer of their entitlement and have provided the necessary declarations and evidence.

Third element – the “continuity of employment test”

A parent wanting to take SPL must satisfy the continuity of employment test. This means that they must have been your employee for 26 weeks:

a)   at the end of the 15th week before the expected week of birth; or

b)   at the week of being matched with a child for adoption,

and remain in continuous employment until the week before he or she starts any period of SPL.

Fourth element – the “employment and earnings test”

The other parent/partner also needs to satisfy the employment and earnings test by:

a)   having worked for at least 26 weeks as an employee or a self-employed earner during the 66 week period leading up to the baby’s expected due date or child’s matching date; and

b)   earning an average of £30 per week (as at 2015) in any 13 week period during those 66 weeks.

When will we know if an employee wants to take SPL?

Parents do not have to choose to take SPL immediately on the birth/matching.  They have the option to request it at any time whilst they remain eligible to do so, and there is some untaken leave left to share. You would however be entitled to receive at least eight weeks’ notice – see below.

When and how must SPL be taken?

The legislation provides that:

  • SPL must be taken within one year of the birth/adoption; and
  • it can be taken as an unbroken period of leave (“continuous block”); or
  • it can be taken as separate periods of leave (“discontinuous block”). For example, the employee takes five weeks SPL, returns to work for four weeks and then takes a further five weeks SPL.

The distinction between continuous and discontinuous blocks of leave is important as this determines the nature of the employer’s response.

How much leave can be taken?

The total amount of SPL available depends upon the amount of statutory maternity/adoption leave that the mother or the primary adopter has taken and/or proposes to take – this is because the mother/primary adopter must cut short their 52-week entitlement which can either be done by:

  • returning to work early; or
  • giving a curtailment notice to their employer to end the statutory maternity/ adoption leave on a specific date.

The maximum number of weeks of SPL that can be made available is 50.

SPL can only be taken in blocks of complete weeks, i.e. not in blocks of less than seven days.

It is envisaged that SPL can be taken concurrently by the partner, while the mother is still on maternity leave as long as the relevant notice requirements have been satisfied.

Do we have to pay Statutory Shared Parental Pay (“SSPP”)?

The answer is yes.  SSPP is broadly the same as statutory maternity pay and can be paid for up to a maximum of 39 weeks (less any statutory maternity pay, maternity allowance or statutory adoption pay).

An employee who qualifies for statutory maternity pay, statutory adoption pay or statutory paternity pay and whose partner meets the employment and earnings test will be eligible for SSPP.

If both parents qualify for SSPP they must decide who will receive it, or how it will be divided, and they must each inform their employer of their entitlement.

How will we know if an employee wants to take SPL?

SPL can only be taken where the mother has:

  • already returned to work; or
  • given notice to reduce the statutory maternity/adoption leave and the date it will come to an end.

Before SPL can start you would be entitled to receive the following communications:

1.   Notice of entitlement

If an eligible employee intends to take SPL they must send you a notice of entitlement confirming that they want to opt to take SPL. This notice must include certain prescribed information such as how many weeks maternity/adoption leave will or has been taken, details of as how much SPL will be taken and when; a declaration from the employee and the other partner/adopter confirming that the statutory conditions are met must also be provided. At this stage the employee is only required to give you an idea of what they are considering and the leave dates do not have to be definitive.

The notice must be submitted at least eight weeks before the intended period of SPL.

The mother/primary adopter must provide their employer with the notice. Likewise, the father/partner must provide their employer with the notice.

2.   Curtailment notice

If the employee has not returned to work they must serve a curtailment notice in relation to statutory maternity/adoption leave to bring it to an end.

3.   Notice to claim SSPP

If an employee wishes to claim SSPP, they must also give notice at least eight weeks before they wish to start claiming it.  This notice can be included within the notice of entitlement.

4.   Notice to book leave

A notice to book SPL must be submitted in writing at least eight weeks before any period of SPL would begin.  This notice to book leave must set out the leave the employee intends to take specifying the start and end dates. Three periods of leave notice can be given, which can permit up to three separate blocks of SPL being taken.

This notice can be given at the same time as the notice of entitlement is provided.

This notice must be submitted at least eight weeks before the intended period of SPL.

Can we refuse requests for periods of SPL?

In short, the answer to this question will depend on whether the request relates to a continuous or discontinuous block of leave:

  • A request for a continuous block of leave must be accepted unconditionally, unless the employee agrees to a modification; there must in this case be evidence that such agreement has been freely given by the employee.
  • A request for a discontinuous block of leave could lead to three possible outcomes:

a)   the request is accepted unconditionally.

b)   a modified period for leave is agreed; and

c)   the request is refused without proposing alternative dates.

Employers should be mindful that there is a process for responding to requests particularly those relating to discontinuous blocks of leave and in some cases the default provisions may be triggered. For example, where the request is ignored, agreement is not reached or the request is rejected. The default provisions allow the employee to withdraw their request, which will then not be treated as one of the statutory three notices to book leave, or the leave will default to a period of continuous leave.

Does SPL have to mirror the organisation’s enhanced maternity scheme?

There is no statutory requirement for employers to create an occupational shared parental leave scheme, even if it offers an enhanced maternity scheme. If, however, you offer an enhanced maternity scheme we would recommend that you take legal advice as potentially not offering an enhanced SPL scheme may  give rise to a discrimination claim.

Do we need to allow the employee to return to work following SPL?

An employee’s right to return to work will be determined by the period of SPL taken:

  • If an employee returns to work following a period of SPL they are entitled to return to the same job if their combined leave period (comprising of maternity/paternity/adoption and SPL) totalled 26 weeks or less.
  • If an employee returns to work following a period of SPL where the number of weeks of maternity/paternity/adoption and SPL exceeds 26 weeks in total, or the total number of unpaid parental leave weeks exceeds four weeks, an employer must allow an employee to return to the same job unless it is not reasonably practicable to do so, in which case a suitable and appropriate job on terms and conditions no less favourable must be offered.

Are there any other considerations we need to be aware of?

The legislation does create additional rights and protection for those seeking to take or taking SPL. For example:

  • Terms and Conditions – During SPL an employee is entitled to benefit from all of their usual terms and conditions except for remuneration, i.e., wages.
  • Redundancy situations – If whilst on SPL an employee’s role becomes redundant, they must be offered any suitable alternative role, if available. This is the same right a mother on maternity leave has.
  • Detrimental treatment and dismissal – Employees are entitled not to suffer from a detriment or be dismissed for seeking to taking SPL.
  • “Shared Parental Leave In Touch Days” (“SPLIT days”) – An employee and employer can agree that the employee will attend  work for up to 20 SPLIT days.
  • Annual leave – Annual leave will accrue during SPL.

The Equality Act 2010 prohibits unlawful discrimination in the workplace on the grounds of a protected characteristic, which includes gender, sexual orientation, pregnancy and maternity. SPL therefore creates the potential for a discrimination claim. To minimise the risk, all requests for SPL must be handled fairly, consistently and in a non-discriminatory way to avoid such claims.

Should we introduce a SPL Policy?

Whilst there is no legal requirement for you to have SPL policy, we consider that it would be a matter of good practice for most employers to have one.  This will ensure that all SPL requests are dealt with consistently, all legal requirements are satisfied and the correct procedures, particularly where discontinuous periods of leave are sought, are followed.  It will also tell your employees how to apply for SPL and the minimum legal requirements they need to satisfy.

What do we do next?

If, having read our note, you have further questions or if you receive an application for SPL from a member of staff and you require some advice specific to that application, please contact us. We would also be happy to advise you.

We will however keep you updated with future updates on this knotty subject.

Please contact us on:

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

CCTV surveillance of employees – could you be in breach of the Data Protection Act?

19882888_m CCTV Suviellance

SUMMARY: A council in Wales has been warned about its future conduct after carrying out covert surveillance of an employee in breach of the Data Protection Act 1998

Circumstances of the warning

The ICO (Information Commissioner’s Office) has reported that the following occurred at Caerphilly council, resulting in a warning:

  • An employee was off work for 4 weeks with a sick note for anxiety and stress when covert surveillance was authorised.
  • The employee had told a few people that she felt housebound and the employer believed that she would use the absence to avoid attending meetings she was required to attend at work.
  • There was no medical indication that the employee was housebound.
  • No other measures were taken to discuss the employee’s sickness absence and potential attendance at meetings before resorting to covert surveillance.
  • There had been no evidence to suggest that the employee would use the sickness policy as a basis for not attending the meetings she was required to attend.  In fact the employee attended a meeting which took place shortly after the surveillance had been carried out without being aware that the surveillance had been conducted.
  • The report which was produced by the surveillance company was never used despite the report verifying that the employee was not housebound.

Breach of the Data Protection Act 1998 (“DPA”)

The Commissioner’s view was that there were not sufficient grounds at this early stage of the employee’s sickness absence to justify the authorisation of covert surveillance. The Commissioner therefore considered that the covert surveillance of the employee’s activities was unfair and in breach of the First Data Protection Principle (which is to process personal data fairly and lawfully).

How can employers comply with the DPA when carrying out CCTV surveillance of employees?

The ICO has made it clear that covert surveillance to monitor employee behaviour can be justified in some circumstances.  However the employer must:

    1. be satisfied that there are grounds for suspecting criminal activity or equivalent malpractice (i.e. serious but non-criminal employee misbehaviour such as fraudulently claiming sick pay);
    2. be satisfied that notifying individuals about the monitoring would prejudice its prevention or detection.  Keep records of these details; and
    3. consider alternatives to covert surveillance which respect the employee’s privacy and keep a record of the reasons why these alternatives are not viable/appropriate.  The ICO Employment Practices Code advises conducting a written impact assessment which must:
      • clearly identify the purpose(s) behind the surveillance and the benefits it is likely to deliver;
      • identify any likely adverse impact of the surveillance;
      • consider alternatives to surveillance or different ways in which it can be carried out;
      • take into account the obligations that arise from the surveillance; and
      • judge whether the surveillance was justified.

Particularly consider whether a medical report should be obtained and whether a discussion should take place with the employee – both of which we would advise carrying out in most cases; and

  1. only use covert surveillance in exceptional circumstances as a last resort when all the above points have been satisfied.  Covert surveillance should only be authorised by senior management.

When authorising and following the authorisation of covert surveillance, after the above steps have been completed, the employer must:

  1. ensure that any such surveillance is strictly targeted at obtaining evidence within a set timeframe and that the surveillance does not continue after the investigation is complete;
  2. not use covert audio or video monitoring in areas which workers would genuinely and reasonably expect to be private;
  3. if a private investigator is employed to collect information on workers covertly ensure there is a contract in place requiring the private investigator to only collect information in a way that satisfies the employer’s obligations under the DPA.  The contract should impose requirements on the investigator to only collect and use information on workers in accordance with the employer’s instructions and to keep the information secure.
  4. Disregard and, where feasible, delete information collected in the course of monitoring unless it reveals information that no employer could reasonably be expected to ignore or is used for the prevention or detection of criminal activity or equivalent malpractice.

Employers can find further information on surveillance in the ICO’s Employment Practices Code.

Contact Details

If you are considering covertly monitoring an employee or conducting an impact assessment in relation to covert surveillance we can advise – please contact:

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.