Category Archives: Workplace

Getting back to work

Work Safety

Announcing the extension of the furlough scheme will have provided many businesses and employees with some comfort and further financial breathing space during these challenging times. The scheme will remain in place until 31 October 2020, which is perhaps longer than initially anticipated. The scheme’s current format will however change from August with employers being required to share the cost of furloughed staff with the government.

By the end of May more detail about the post-July changes will be published. Although the aim of the changes will be to provide employers with greater flexibility to get furloughed employees back to work on a part-time basis, without the full detail of the changes, the real benefit cannot be assessed. So there will be some nervousness until the employer’s contribution has been published.

Most employers supported by the furlough scheme will sensibly defer any definite decisions about the future shape of the workforce and their return to work plans until further information is available. In the meantime, there are certain key questions that need to be answered.

Can the business return to the way it was in the short and long-term from both a financial and operational perspective and if so, how quickly can this be achieved, if at all?

Even when driven by financial necessity, furloughing employees will have been a difficult decision but in many cases it would have been implemented overnight. Bringing the operation back to life and having sufficient revenue streams to support this move is likely to be a more complex process; a new strategy may be required. Where people are at the core of the operation, workforce planning will be an critical part of developing a new strategy, which may inevitably involve restructuring and redundancies. Changes to contractual terms and conditions of employment may also be necessary. In either case, careful planning will ensure that all legal obligations, including complying with any consultation requirements are satisfied to minimise the risk of claims in the employment tribunal.

How will employees’ expectations be managed?

Until the recent announcement, the focus has been on the furlough scheme ending at the end of June. In contrast to the suggestion furlough is addictive, the majority of those furloughed will have been focusing on returning to work on 1 July, which is probably what individuals believed they were signing up to under their furlough agreements. Financial reasons will be at the heart of the decision for any business to utilise the scheme for as long as possible. In making this decision, employers need to be able to address employees’ current expectations, not only in terms of a continued requirement to remain at home but also the financial impact that it may have on them personally.  A clearly communicated rationale and a keeping in touch plan will be essential to retain the engagement of those on long-term furlough, if those employees are key to future business success once the recovery period is underway.

The consequence of long-term furlough means that employees are being asked to agree to a continued variation of their contracts of employment. If furlough is to be extended it will be important to establish if current furlough agreements can be relied upon or whether new agreements will need to be issued to avoid breach of contract and wage claims.

Are there any health considerations that need to be addressed in the return to work plan?

There is still no certainty about the curtailment of the virus and the health risks are still present. Any return to work plan must be supported by a thorough health risk assessment. The assessment needs to start from an employee’s home and include their journey to and from work. It is difficult to control who individuals come into contact with when away from work. Control measures will need to be implemented, including reiterating the importance of following the government’s social distancing measures and good hygiene. Further hard work will be needed once the employee is back at work to manage any health risks, with adequate controls being implemented. Adhering to government and the Health and Safety Executive guidance should be non-negotiable from the perspective of both the business and all employees when it comes to protecting individual well-being. Vigilance and flexibility in relation to control measures will be important to safeguard health, if the level of risk increases. The workplace is likely to feel and may look very different when employees return. It is important that clear guidance and training is provided on how to work safely and protect health.

Mental health should also be a factor that is considered as part of any risk assessment. This factor is multi-faceted. Some employees may need reassurance as they have concerns about their personal safety. Others may struggle to adapt when returning, particularly if the work regime feels unfamiliar. Deferring a return to work or making a request that homeworking is undertaken, may leave individuals feeling left behind and isolated. Employers have a legal duty to tackle work-related mental health issues; risks need to be assessed and controlled.

How will a phased return to work be managed?

Roles and skills will have been identified as necessary to support the initial recovery phase, while less business critical roles are likely to be kept under review as progress is made. Resuming some level of operation will be perceived as a positive step but there are potential legal risks that need to be addressed.

A phased return means that choices will have to be made about who returns, and from August whether this is on a full-time or part-time basis (if home working cannot continue), and who stays at home furloughed. Employment law still applies irrespective. To avoid any legal challenge, employers need to be transparent about the selection criteria adopted to bring people back to work while others remain at home. It is essential that this process is documented, and the audit trail must be capable of demonstrating that selection is fair, based legitimate business reasons and is not discriminatory.

Is business ready to be scrutinised?

The government’s focus is now on a transition period, with employers starting to take back responsibility for the cost of their workforce. In the absence of further detail, it is unclear if employers will be required to justify decisions made to retain employees on furlough until the end of October. Employers may be required to justify their decisions made about keeping employees on furlough throughout the extended period. The furlough scheme is not there to avoid dealing with problem employees. At some point concerns will have to be addressed.

The furlough scheme extension will continue to protect many jobs as the economy recovers. While waiting to learn more about the changes to the scheme from August, from an employment law and people management perspective employers should now start to sketch out the future for its operations and the workforce.

FG Solicitors are experts in all areas of Employment Law and HR, and we can slide your business through the business recover stages. Feel free to call us on 0808 1729 322 for a no obligation discussions.

This publication is for general guidance only. Advice should be taken in relation to a particular set of circumstances.

 

 

THE CHANGING FACE OF WORK!

THE CHANGING FACE OF WORK!

For the last two decades the notion that innovations in industrial and manufacturing processes and a digitised professional services industry, would lead to a shorter working week and increased leisure time has been a common feature of work analysis in the United Kingdom.
The idea that we may all be required to work less or, at the very least,  differently has now been brought back into sharp focus by the current COVID-19 pandemic.  On 31 January, the UK saw the first reported case of viral infection and it can scarcely be believed that by 20 March, all restaurants, pubs, clubs, and indoor sport and leisure facilities were ordered to close.
On 23 March these measures were tightened further, with wide-ranging restrictions made on freedom of movement, enforceable in law. At the time of writing, it is inconceivable that there will be any relaxation of the current lockdown in the near future.

What does all of this mean for the world of work?

The arrival of COVID-19 took away control of the working environment and created an acute balancing act between economic survival and employee health & safety. The government’s introduction of the furlough scheme offers short term support for the current suspension of commercial activity but not a solution.
In the meantime, employers will be occupied with thoughts of business survival and once this is achieved some very real considerations as to what form the structure and dynamics of the workforce will take in a post COVID-19 era.

Will working from home become the new norm? Will there be a need to have offices and the cost of maintaining them?

If nothing else, COVID-19 has ignited a massive experiment in working life and is allowing businesses to test the various scenarios to see how well they would cope if the current enforced changes became a permanent reality in some form or another. Change of this magnitude will certainly require a cultural and psychological shift on both sides and great preparation will be required if it is to have any chance of success.
For most businesses, having an office is not merely a place to house its workforce, it is also seen as a symbol of success, serving as a magnet to attract custom and to recruit the brightest and the best. Some employers hold the view that true team working requires physical proximity which cannot be achieved through working remotely. It remains to be seen whether the experience and lessons learnt from imposed home working changes that view.

What about businesses with production processes that cannot be performed from home?

Will the push to drive down costs and recover commercial stability result in permanently reduced wages, reduced headcount, and increased outsourcing? These are only a few of the vexed questions employers will need to address during and post lockdown. The exploring and review of all scenarios begins now and employers are well advised to create, maintain and retain the figures and statistical information on which reliance can be based.
It should also be part of the current HR strategy for any employer with employees on furlough leave, to have an established method of global communication with them. COVID-19 has presented businesses with a sea of uncharted water to navigate and this will be the same for employees who are not only pre-occupied with staying safe but will also be concerned with what the future holds. Regular contact has an invaluable role to play in maintaining morale and motivation.

What is the position of the law in all of this?

The government has been keen to point out that the emergency measures introduced to tackle COVID-19 does not displace existing employment law. Even in these challenging times, employers that disregard existing law, do so at their own peril and at a time when they can ill afford to get it wrong.
It has come as no surprise that employers caught with the suddenness of the COVID-19 lockdown and the immediate impact on revenue have put employees into the furlough scheme with a 20 per cent reduction in pay. Employees faced with the prospect of losing jobs have agreed to this reduction with the mind-set that when they eventually emerge from furlough leave, wages will revert to their pre- furlough position. From an employer’s position much will depend on the terms of any agreement put in place to vary the existing contract at the time furlough leave began.
While it may be possible for employers to argue that any change was for a substantial reason justifying the change, maintaining that position in the absence of a proper consultation process may, post-lockdown, result in a demotivated workforce at precisely the time when full engagement is required. This, added to the cost and inconvenience of claims from employees will become a major and unwelcome distraction.
The acid test will be when the 80 per cent of government support is no longer available in the form of furlough leave, as to the level of redundancies that may take place in businesses as a result. At this point, processes will become vital if conflict is to be avoided. The spotlight will largely be on consultation obligations, individual and collective. The accuracy of information held in personnel files will also be of paramount importance in effecting risk-managed change.
It is a safe bet that the road to recovery will be long and challenging for both employers and employees. Returning to an optimised way of working will require enormous effort. Individuals may well be affected by bereavement, the uncertainty over the normal operation of schools will undoubtedly present challenges for employees with children. All factors which will need to be considered and managed when normal service is resumed.
For information and support please do not hesitate to contact Floyd Graham or a member of the Employment Law Team of FG Solicitors on 01604 871143 or visit our website for answers to frequently asked questions relating to COVID-19.

COVID-19, data protection and common concerns

COVID-19, data protection and common concerns

The ICO has indicated that in these challenging times employers should adopt a proportionate approach to data protection giving guidance on the following key areas of concern:

Do data protection laws prevent employees from working at home?

Data protection laws should not prevent homeworking during the pandemic.

Does the current situation negate the need for data security measures when employees are working remotely?

No. Employers should introduce the same security measures as they would usually adopt for all homeworkers.

It is our view that employers implementing widescale homeworking should introduce clear guidelines to manage expectations, control health and safety and protect confidentiality and data.

In the case of data security and confidentiality for homeworking, we would recommend as a starting point that employers:

  • Assess the risk of a data breach arising from homeworking. This will assist to identify what measures and controls need to be introduced.
  • Ensure employees are aware that data security and confidentiality is their responsibility. Now is the time to direct them to your policies governing IT and communications, data protection and data retention. Consideration should be given as to whether these may need to be updated to reflect homeworking.
  • Issue specific guidance relevant to the business regarding data security in the context of homeworking. For example, the mandatory use of encryption and passwords, keeping all papers securely and not allowing household members to use company IT equipment.

Make sure employees know what to do and who to contact if they discover a security or data breach.

Can we tell employees about cases of COVID-19?

Yes. Staff should be kept informed about cases of COVID-19. This is on the basis employers need to satisfy their duty of care regarding health and safety. Individuals must not be named and no more information than is necessary should be provided.

What if we are asked by the public health authorities to share employee health information?

Organisations may share employees’ health information with authorities for public health purposes.

FG Solicitors are experts in all areas of Employment Law and HR, including Data Protection and we can provide guidance around the issues that may arise if you are currently transitioning from office-based working to homeworking. Feel free to call us on 0808 172 9322 for a no obligation discussion.

An unprecedented time – preserving your business

An unprecedented time – preserving your business

The current crisis in relation to the coronavirus has very quickly taken on a different complexion for many businesses. It is no longer planning for self-isolation and how we control the spread of the virus within the workplace. Many businesses are planning for survival as they are facing the stark reality that trading levels may drop significantly to a level where operating costs will outweigh current and projected revenue streams.

Organisations that have a clear view of their people resources and adopt a flexible strategy to the changing commercial and economic environment are more likely to minimise the disruption to their businesses. This may mean that in some cases difficult decisions must be made which will have a detrimental effect upon the workforce. However sound decisions made now could safeguard businesses for the future, with redundancies be treated as a last resort outcome given the potential costs involved:

  • Reducing hours: If only temporary changes are needed to provide some financial breathing space short-time working, part-time or flexible working or overtime bans could provide the help that is needed.
  • Temporary stoppages: Faced with the reality of no job in the short-term, employees may be open to consider a sabbatical, taking unpaid leave, taking a period of paid annual leave or being laid-off.
  • Reducing payroll costs: A reduction in costs can be achieved in different ways and does not have to always be reliant on a reduction in headcount. Would pay freezes, pay cuts or the withdrawal of bonus entitlements be more appropriate?
  • Reducing headcount: Compulsory redundancies are not the only way to reduce headcount. Consideration should be given to voluntary redundancy, recruitment freezes, reducing non-permanent staff, the withdrawal of new job offers or deferring the start date for new joiners, reducing the number of agency staff, considering redeployment or secondment of staff or even early retirement.

Whilst the impulse may be to look for a quick fix which may be seen to be job losses, employers should not be surprised that in difficult times employees will be less resistance to change and may be amenable to different options when the only other alternative is redundancy.

Any strategic fix for your business should involve a robust operational readiness assessment before communications are made to employees, who at this time are looking for clear management direction. Key considerations in ensuring the strategy is fit for purpose would be:

  • Establishing whether redundancies are the only option. Any redundancies come with costs and may leave the business faced with a skills shortage later in the year.
  • Having certainty that there is sufficient flexibility in the plan to be able to respond quickly to any changing trading conditions (good and bad), if implementing alternatives to redundancies.
  • Recognising that any decisions affecting the workforce must consider collective and individual employment rights (statutory and contractual). Advice at the planning stage is important so that legal risks can be managed and accounted for. The legal framework around lay-off, short-time working and statutory guarantee payments can be tricky to navigate, as is the collective consultation obligation, which may be triggered where proposed workplace changes may affect 20 or more employees.

None of us are currently operating in a perfect world and there are some difficult times ahead. FG Solicitors are experts in all areas of Employment Law and HR and we can guide your business through any difficulties you may face like this one. Feel free to call us on 0808 172 9322 for a no obligation discussion.

Counting the cost of discrimination

Counting the cost of discrimination

The cost of litigation is always a concern for employers and never so more than in discrimination claims. Employers should never underestimate the cost and disruption a discrimination claim can give rise to. Discrimination claims are often complex and take more than a single day to be heard.  On top of the legal costs involved in defending a claim, there are the hidden costs of absent managers who have to attend to give evidence and reputational damage to the business itself.

In order for employers to assess their attitude towards risk and what the approach should be to preventing discrimination in the workplace it is helpful to understand the consequences of getting it wrong.   Compensation awarded in a discrimination claim is not subject to the statutory financial limit, which a standard unfair dismissal claim is subject to and is uncapped in relation to financial loss.  Compensation may also include a separate award for injury to feelings; the amount awarded depends upon the severity of the case. The maximum award usually sits at £44,000 for the most serious of cases, with cases involving one off minor incidents achieving up from £900.   Damages for personal injury can also be claimed as part of a discrimination claim; for employers who have been found to have acted in a high handed or oppressive way aggravated damages can be awarded.

This is not the end of the matter.  Since 2014, the employment tribunal has the power to impose financial penalties on employers who lose in the following specified circumstances:

  • where the employer’s breach has “one or more aggravating features“; and
  • even if a financial award has not been made.

While there are as of yet no reported cases to illustrate how the employment tribunal will determine what amounts to “aggravating features”, what is clear is it will be for the tribunal to determine this taking into account factors it considers relevant including the circumstances of the case, the size of the employer, the duration of the breach of the employment right, and the behaviour of the employee and employer.

While the financial penalty regime has not been particularly successful, employers need to be aware of the regime bearing in mind it is open to an employment tribunal to impose the penalty.

The minimum penalty is £100 and the maximum £20,000.  If a financial award has been made, the financial penalty must be 50% of the amount of the award (subject to the minimum and maximum caps).  An employer will not have to pay the full penalty if it pays 50% of the penalty within 21 days.  Employment tribunals will be required to take account of the employer’s ability to pay.

The penalty will be paid to the Secretary of State, who will pay the money into the Consolidated Fund (the government’s general bank account in the Bank of England).

Whilst financial penalties may be awarded in any type of claim, by their very nature discrimination claims are likely to present employment tribunals with the opportunity to issue the penalty.

No employer can prevent a disgruntled employee or ex-employee from pursuing a discrimination claim. Likewise, an employer does not want to have to pay a financial penalty to the government.  Whilst settlement may be one option for resolving a workplace dispute if it arises, there are many measures that can be implemented to reduce the risk of the business having to take the full force of a successful claim.  Zero tolerance on discrimination, bullying and harassment in the workplace, supported by clear consistently applied policies and procedures and training can go a long way to assist an employer to defeat a claim.

Banning the Wearing of Muslim Headscarfs by Women in the Workplace Now Lawful!

68416330_lThe 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.

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.

CONTACT DETAILS

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

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

Sports Direct: Failure to Pay National Minimum Wage – A Business Model With Exploitation at its Heart? (Part 1)

14184143 - green grass  uk pound symbol against blue skySUMMARY:  The Sports Direct founder, Mike Ashley, faced the Business Innovation and Skills (“BIS”) Select Committee on 7 June 2016 for an evidence session into the working practices adopted by Sports Direct.  A month later, it was widely reported that Sports Direct’s profits had been hit.  Mr Ashley’s fortunes have not improved as this month it has been announced that shareholders will be asked to vote on whether there should be an independent workplace review – we will have to wait until September to see how this latest chapter unfolds.

But how did it come to this?

To recap, Mr Ashley received intense criticism stemming from the Guardian Newspaper’s investigation at the end of 2015, which uncovered allegations that his Company:

  1. Failed to pay its workers the minimum wage;
  2. Engaged a significant proportion of staff via zero hours contracts and short term hours agency worker agreements;
  3. Created a culture of fear throughout its workforce due to arbitrary and outdated disciplinary practices; and
  4. Conducted daily physical security searches of employees.

On the back of the ever increasing publicity of how some high profile companies treat their employees, we have produced a two part series to enable you to assess whether your company is inadvertently making the same mistakes as those reportedly made by Sports Direct.  The first in this series explores the allegation that Sports Direct failed to pay its workers the minimum wage and sets out the law behind this complex issue.

___________________________________________________________________________

THE ALLEGATIONS:

HM Revenue and Customs (“HMRC”) are currently investigating allegations that Sports Direct paid its workers less than the National Minimum Wage (“NMW”) effectively saving the Company millions of pounds per year.

The underpayment allegedly arose as a result of workers being forced to undergo compulsory rigorous security checks at the end of their shifts as a theft prevention measure, adding as much as 15 minutes onto their working day (or up to one hour and fifteen minutes to their working week), which is unpaid.

In addition, it is also alleged that workers faced a 15 minute deduction from their pay for “clocking on” 1 minute after their designated start time, even if they actually arrived on site on time.

WERE THE SPORTS DIRECT STAFF WHO WEREN’T EMPLOYEES ENTITLED TO NMW?

All employers are obliged to pay the NMW regardless of their size, and the NMW applies to all “workers” ordinarily working in the UK who are over compulsory school leaving age, not just employees.  This includes agency workers and apprentices.

WHAT ARE THE CURRENT NMW RATES?

From 1 April 2016, there are now 5 rates of NMW:

CATEGORY   RATE (£)
National Living Wage Workers aged 25+

7.20

Standard Adult Rate Workers aged 21-24 (inclusive)

6.70

Development Rate Workers aged 18-20 (inclusive)

5.30

Young Workers Rate Workers aged under 18 but above the compulsory school age

3.87

Apprentice Rate Apprentices either:

  1. Under the age of 19; or
  2. Aged 19 or over, but in the first year of their apprenticeship

3.30

HOW DO I DETERMINE IF MY COMPANY IS PAYING THE NMW?

In order to determine whether the NMW is being paid to your workers, you will need to determine their average hourly rate of pay.

On the face of it this calculation seems quite a simple one – sadly, this is not so. The average rate of pay is calculated by dividing the total amount of “money payments” that a worker earns across the relevant reference period, by the number of hours the worker has worked during that same reference period. However, what amounts to a “money payment” frequently trips up the uninitiated – see below.

The number of hours worked (known as “working time”) can also prove a tricky area for companies and one which has given rise to a raft of case law on its own. This is dealt with below.

Turning then to the relevant reference period, this is usually one month and cannot be greater than one month. However, if the worker is paid weekly or daily, then this is their reference period.

What Money Payments Should Be Considered?

Companies must exercise caution as some payments cannot be included as “money payments” for NMW purposes:

EXAMPLES OF INCLUDED PAYMENTS Basic salary
Bonus**An annual bonus paid for example in December, will usually only count for the December reference period
Commission/Incentive Payments Based on Performance
Accommodation Allowances
Allowances Paid by HMRC Dispensation Agreements
 

EXAMPLES OF EXCLUDED PAYMENTS

Benefits in Kind
Loans Given by the Company
Advances of Wages
Pension Payments
Lump Sum Payments on Retirement
Redundancy Payments
Tribunal/Settlement Awards
Premiums Paid for Overtime/Shift Work
Expenses
Tips and Gratuities

What About Deductions From Pay?

Certain deductions from a worker’s pay can reduce their pay for NMW purposes, including deductions made by a company in respect of expenditure in connection with carrying out their duties (e.g. the cleaning or purchase of uniforms). After these deductions have been taken into account the worker must still be left with at least the NMW.

Another famous retailer, Monsoon, was ordered to pay more that £100,000 to its employees in 2015 as a result of its practice of requiring staff to wear Monsoon clothes at work and deducting the discounted cost of the clothes from their wages. After the deduction, staff were left with less than the NMW.

Conversely, certain deductions do not reduce a worker’s pay for NMW purposes such as a deduction permitted by the contract between the Company and the worker due to misconduct.

In the case of Sports Direct, it has been reported that deductions were made from workers’ pay for lateness. If the deductions were not permitted by contract, the deduction would reduce the workers’ pay for NMW purposes.

A deduction of this nature could also amount to an unlawful deduction of wages, allowing the worker to bring a claim in the Employment Tribunal.

What Is Classed As Working Time?

Finally, a key issue for the Sports Direct case is what is actually classed as working time?

Working time is defined as any time during which a worker is working, at their employer’s disposal and carrying out their duties. There has also been recent case law demonstrating that, for those workers without a fixed placed of work, travelling time to their first assignment of the day and travelling time from the last assignment of the day may count as working time.

Against this legal backdrop, should the time spent by Sports Direct workers undergoing compulsory security checks be considered working time that is counted for NMW purposes? It is highly likely that the answer to this question is “yes”.  This is because workers are not free to leave the company’s premises until the compulsory security checks are completed.

How Can Your Company Avoid A Similar Fate?

Those companies operating in sectors where payment of the minimum wage is prevalent often adopt a proactive stance and schedule annual reviews to ensure legal compliance in this respect. These reviews can be linked to annual pay reviews or can form part of wider audits which align HR strategies to deliver the businesses’ objectives.

In any event, and at the very least, all companies need to:

  • have an awareness of the current NMW rates which are updated twice a year;
  • understand what payments can be included for NMW purposes; and
  • understand what counts as working time for NMW purposes.

This then enables a company to identify any risks which may arise on the back of the publicity surrounding high profile NMW cases such as Sports Direct; at the very least this will enable that company to tackle those risks head on.

CONTACT DETAILS:

If you would like more information on this topic, audits or would like to discuss a specific concern in relation to your business, please contact us:

Call: +44 (0) 808 172 93 22     Email: fgmedia@fgsolicitors.co.uk

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

Absenteeism – What’s the impact on your business?

Contact Details

For more information please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

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

Football Hooliganism – Can You Dismiss?

FG_Soccer-01

Media continue to focus on football hooliganism at Euro 2016 – what’s that got to do with your staff?

Most individuals will support their chosen nation from the comfort of their armchair over the coming weeks, but some will be lucky enough to have time off work to travel to France to indulge their passion for live football.  Whilst in the minority, there will be others whose only goal will be to indulge their passion for football hooliganism.

The French authorities have shown zero tolerance towards to any bad behaviour; the response has been and continues to be swift. Depending on the severity of the offence, guilty fans have been fined or given custodial sentences irrespective of nationality.

What is your response if one of your employees is one of these guilty fans who is incarcerated in France?  

Your immediate reaction may be to dismiss the employee, but is this fair if their imprisonment arose from actions that were completely separate to their employment?

The answer is that where there is misconduct outside of the workplace, it might be fair to dismiss where the misconduct affects (or could affect) the employee when they are doing their work.

Be aware there is no automatic right to dismiss

An employer cannot automatically assume that an employee can be dismissed because they have been convicted of a criminal offence, even where they are given a custodial sentence – see below.  An employer would need to consider:

  • what effect the conviction has on the employee’s suitability to do their job; and
  • their relationship with their employer, work colleagues and customers.

Cases involving violence, such as hooliganism, are more likely to affect the employment relationship either because of:

  • the nature of the work (if an employee’s job is working with children or vulnerable people any form of violence is unlikely to be tolerated); or
  • damage to the employer’s reputation (no employer is likely to want to be associated with football hooliganism and this could cause more damage to some organisations than others.  If there is significant negative publicity in the media, this is more likely to damage an organisation’s reputation).

An employer who dismisses in response to an employee’s criminal conviction without having considered the elements above, should expect swift receipt of an unfair dismissal claim (unless the employee has less than 2 years’ service, and so will not usually be able to bring such a claim).

What if the employee is in prison?

If an employee is in custody, the employer must also consider whether, in light of the needs of the organisation, the employee’s job can be held open.  The longer the period of imprisonment, the more likely it is to be a fair decision that the employee’s job cannot be held open.

In some cases where there is a particularly long duration of imprisonment, employment may end by reason of “frustration”, which mean the contract can no longer be performed.  In theory, no process needs to be followed if frustration applies.  Employers should always seek legal advice on whether this could apply rather than assuming that it will; frustration is a concept employment tribunals often struggle with as a reason for concluding the employment has ended.

Follow a reasonable process

When there is a criminal charge or conviction, a reasonable and fair process should be followed, as with any misconduct dismissal, which should consist of a reasonable investigation followed by a disciplinary hearing where the employee has a reasonable opportunity to respond to the allegations against them.  If, however, the employer cannot contact the employee or the employee will not co-operate, this does not mean the employer cannot continue with the process; an employer could offer to conduct the process in writing or based on the information they have.

Contact Details

For further advice on dismissing employees who have been charged or convicted with a criminal offence – please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

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