Absence and Attendance Management in the Workplace

“My employee is absent without my permission and has taken company property. How can I get this back?”

The first step that would be recommended before taking legal action would be to write to the employee requesting that the return the property that belongs to you.

It is important to note that Civil Court proceeding are often costly and can damage a company’s reputation. Thus, the matter should be resolved through conciliatory routes in the first instance.

“I cannot get a hold of my employee who is on long-term sick leave. What can I do?”

It is crucial that employers do not put pressure on the employee to return to work, this can make the situation worse. However, you can still maintain appropriate contact with this employee during their long-term sick leave.

When determining whether this is a conduct issue, employers should check the wording of their contract of employment/workplace policy. If the employee has not followed the provisions set out in these, it may then be classified as an unauthorised absence which will generally result in the employee being unpaid for this time. The employer should then inform the employee that the company will be considering disciplinary action, this should be done in writing.

If you must contact an absent employee, you should follow best practice by ensuring the letter is sent recorded delivery, this will allow you to track it and identify who it was signed by on delivery. If the letter is sent back to you, as the employer you should make reasonable attempts to find out if the employee has changed address and not informed you. It is crucial that you do not assume the employee has resigned due to lack of contact.

“My employee went on holiday and has not returned to work. What action can I take?”

In the first event, employers would be expected to make a reasonable attempt at contacting the employee. This ensures that fair procedure is being followed whilst allowing the employee a chance to explain. Further, it is recommended that employers try contact through all avenues such as next of kin and colleagues.

In addition, employers should set a date in which they expect the employee to contact the workplace by – this should be put in writing.

Following a reasonable investigation and there is still no explanation for their absence, the employer may then inform the employee that dismissal for gross-misconduct will be considered. It is important that employers seek legal advice in this situation to ensure risks of claims to the Employment Tribunal are eliminated.

Can I withdraw an offer if the candidate has not responded?

If your offer has not been accepted, you can formally retract it at any point in writing. This is because there is no contract formed at this point. Employers should follow best practice in this event, your offer letter should inform the candidate that the offer is due to lapse if it has not been accepted by a specific date.

Employment Law Support for Employers

If you require employment law advice on any of the issues raised in this article, or any other employment issue give us a call today on 0370 218 5662.  You can also find out more about our fixed fee HR packages here and fixed fee employment law packages here, or get in touch.

Unlawful Interview Questions

Acceptable and unacceptable interview questions

The purpose of holding job interviews is to obtain as much information as you can on your potential new employee. It therefore does not come as a surprise that on occasions employers are crossing that legal line on what they can and cannot ask.

There are appropriate interview queries and inappropriate queries, it is important that employers are aware of legislation that surrounds these.

(1)  “What is your colour/ethnicity/race?”

This question is illegal, the ability to do the role cannot be measured on an individual’s colour/ethnicity/race. Exceptions may be made in the event that a modelling agency requires someone specific for the role.

(2)  “What age are you?”

An employer may ask if the candidate is over the age of 18, this is to assure they are legally old enough to carry out the duties of the role. For example, bar and restaurant work. Age discrimination is one of the most recent discrimination rules under the Equality Act 2010 and provides that age is not a clear basis when assuming an individual’s ability and maturity to carry out a job.

(3)  “Are you pregnant?”

No, no, no! Employers and prospective employers must not ask the employee/potential employee this question.

Asking or basing a hiring decision on pregnancy would result in a violation of the Equality Act 2010 and could result in legal liability against the employer. Asking the candidate what their long-term career plans/goals are should be suffice when measuring the individual’s commitment to the company.

(4)  “Do you have any disabilities/are you disabled?”

The general position of the Equality Act 2010 is that it is unlawful for an employer to ask any potential employee about their health or disability. Instead, an employer may ask the candidate if they can carry out the specific duties required in the job description.

If the employer offers the individual the job he/she may then may ask the employee health questions. This is to allow them to make reasonable adjustments to the workplace so that they are not put at a disadvantage to other employees.

(5)  “What are your religious beliefs?”

Employers have been seen to ask this question to determine applicants work schedules. For example, if the employee will be available to work on a Sunday. Unless there is a need for a candidate to have a specific belief, religious questions should not be mentioned at all.

In addition, there is no reason that candidates should mention their religious beliefs on their CV/application form.

(6)  “Do you drink/smoke?”

Even if the organisation has a strict no-smoking policy, employers cannot ask this question as part of the interview process. Asking a candidate this question crosses the line between the workplace and the applicant’s personal life.

Further, this question can suggest discrimination –  asking a candidate whether they drink or smoke would imply that this is a determining factor in the hiring process. Should you directly ask this question, you are opening yourself up to discrimination claims if the candidate does not get the position they were interviewed for.

The reason behind this is, drinking alcohol and smoking cigarettes in the UK is legal and something that an employee would do outside of work. Instead, employers may ask if the employee has previously been disciplined for breaching company alcohol and smoking policies.

(7)  “Do you have any children?”

Interviewers should not ask this question. It is understood that family obligations may interfere with the role, however, it is important that employers do not make assumptions into such situations.

Instead, the interviewer may ask the candidate if they would be willing to work overtime if the opportunity were to arise.

(8)  “What is your marital status?”

Again, this question is irrelevant and links back to number 7. It is illegal for an interviewer to make their hiring decision based on marital status. However, they can ask a candidate’s career plans and assess it from there.

(9)  “Do you have any debt?”

An employer should not ask a potential employee about their financial status or credit rating during an interview, credit history should not measure an individual’s performance in a job.

Some exceptions are made to this question in the event that the role involves a financial or banking position. The employer may then request a credit check granted he receives the employee/potential employee’s permission.

What should employers consider?

Certain interview questions are clearly discriminatory and avoided by almost all employers with the correct legal advice.

However, when trying to get a good picture of the candidate during the interview, straying into ‘grey areas’ can be easily done. What you think is a simple and harmless conversation, may in fact be discriminatory which in turn exposes you to costly litigation claims.

Employers concerned with about any of the issues raised in this article can take advantage of our Employment Law Services (ELS) free consultation service – call us today to arrange your free consultation – 0800 612 4772.

Named and shamed: Argos fail to pay NMW

The latest list of employers who have failed to meet National Minimum Wage legislation has been published by HMRC.

Argos which is made up of 233 employers has topped the “name and shame” list. The retailer which is owned by Sainsburys, have been hit with a fine of £800,000 after admitting a mistake they made early 2017 which resulted in 37,000 staff members being underpaid.

This came after the company required their employees to attend briefings before their shift started, these were unpaid. As well as, a security search at the end of shift which also went unpaid.

The Chief Executive of Argos, John Rogers stated: “Processes have been updated to ensure this cannot happen again”.

Other errors include, deducting money from wages to pay for staff uniforms, failure to account for overtime and wrongly paying apprentices.

The Department for Business, Energy and Industrial Strategy displayed that common offenders were retailers, hairdressers and the hospitality industry.

Current rates

As of April 2017, the rate for 25 and over is £7.50, 21-25: £7.05, 18-20: £5.60, under 18: £4.05 and apprentice: £3.50.

Frances O’Grady, General Secretary of the TUC stated: “We know there are more wage-dodging employers out there. TUC research suggests there are at least a quarter of a million workers being cheated out of the minimum wage.”

The director of HMRC, Mellissa Tatton said the “HMRC is committed to getting money back into the pockets of underpaid workers, and continues to crack down on employers who ignore the law. Those not paying workers the national minimum or living wage can expect to face the consequences.”

How Employment Law Services (ELS) Can Help Employers

Employers concerned about any of the issues raised in this article can take advantage of Employment Law Services (ELS) free consultation service – call us today to arrange your free consultation – 0800 612 4772.

Pimlico Plumber case goes to the Supreme Court!

Last Tuesday, Pimlico Plumbers were granted permission to appeal their long and potentially revolutionary case to the Supreme Court.

The case of Pimlico Plumbers is the latest in a series of employment decisions that address the issue – when is a self-employed individual actually viewed as a worker/employee, which in turn grants them all the employment rights that come with worker status?

In February 2017, the case of Pimlico Plumbers Ltd and another v Smith saw the Court of Appeal rule that a plumber was in fact a worker under statutory provisions, entitling him to workers’ rights.

Mr Smith had the obligation under an employment contract to wear a Pimlico uniform, drive a van that was leased and fitted with a GPS tracker by Pimlico and work a minimum number of hours each week.

Despite this, Mr Smith was allowed to pick the jobs that he worked on, had to provide his own work tools and equipment and paid all his own tax and national insurance.

The claimant brought his complaint in front of the Employment Tribunal on the grounds that he was a “worker”.

When the case was heard in the Court of Appeal, the judge recognized that Mr Smith was a worker, which in turn should have entitled him to employment rights, such as, the right to national minimum wage and paid annual leave.

Last week, Mishcon de Reya, who is the law firm representing Pimlico Plumbers reported that they had been granted permission to take the case to the Supreme Court.

The decision that has yet to be heard in this case will be the highest case authority in employment in the UK for “gig-economy” workers.

Mischon de Reya stated: “In arriving at a judgment in this case, the Supreme Court will have to wrestle with important but difficult public policy questions about the type of worker that UK employment law is supposed to protect, and the impact such protections have on UK businesses.

“The law on employment status has been somewhat confused for some time now. Working arrangements are increasingly breaking free of the traditional employer-employee relationship, largely as a result of advances in technology.

“When faced with such atypical working arrangements, the courts and tribunals have increasingly resorted to finding ‘worker’ status.

“It is hoped that the Supreme Court will offer clear guidance and go some way to clarifying the law in this area.”

In response to the news, Charlie Mullins who is the Managing Director of Pimlico Plumbers said: “Today I received the most wonderful news that my company, Pimlico Plumbers, has been granted permission to appeal our long-running and potentially ground-breaking employment case to the Supreme Court.”

“The Supreme Court’s remit is to “hear appeals on arguable points of law of the greatest public importance“, and I am in no doubt that Pimlico’s case falls squarely into this category.  Its ramifications will impact upon many thousands of companies in the building industry and beyond, and potentially affect the lives of hundreds of thousands, if not millions, of UK workers.  I am needless to say incredibly grateful that the Supreme Court has agreed to look again at this case.”

“Let me be crystal clear, I completely condemn disreputable companies who are using fake self-employment to swindle workers out of pay and conditions, however, at Pimlico Plumbers we are not doing that.  So, it is my determined aim to convince the Supreme Court that by using self-employed status Pimlico Plumbers are doing nothing wrong, and what’s more are both morally and legally in the right.”

At present, there has been no date set for the trial. However, at Employment Law Services (ELS) we will keep you informed of updates as they come in.

How Employment Law Services (ELS) Can Help Employers

Employers concerned about any of the issues raised in this article can take advantage of Employment Law Services (ELS) free consultation service – call us today to arrange your free consultation – 0800 612 4772.

Google in trouble after over 60 female employees claim they have been discriminated against!

Google face major law suit after more than 60 employees claim they have been discriminated against.

The Guardian reported yesterday that over 60 current and past employees of Google are contemplating bringing a class-action law suit against google on the grounds of sexism and pay disparities against women.

James Finberg, who is a civil rights attorney, has hinted he may be representing the female employees of google. He reported to the Guardian “they contend they have earned less than men at Google despite equal qualifications and comparable positions.”

He claims that many others have had difficulties attempting to move up the ladder at Google due to a “culture that is hostile to women”.

This comes after a male software engineer leaked a 10-page manifesto naming and shaming the company’s diversity initiatives and suggested that male employees may occupy more leadership roles than female employee’s due to “biological differences”.

Finberg reported to the Guardian that he had interviewed more than half of the 60 women and their testimony’s all determined evidence of disparity and prejudice against women of the Mountain View company.

He said: “They are concerned that women are channeled to levels and positions that pay less than men with similar education and experience”. Despite them working in similar roles with the same qualifications, some women claimed, “they made less than male counterparts in salaries, bonuses and stock options.”

A spokesperson for Google told the Guardian, “there are always going to be differences in salary based on location, role and performance, but the process is blind to gender”.

Finberg further declared to the Guardian, a class-action case could result in other employee’s in the technology industry coming forward with similar complaints.

“Google is not alone in Silicon Valley. The goal of the case is not only to get Google to change its practices, but to encourage other Silicon Valley companies to change their pay practices as well.” He said.

What is gender pay- gap reporting?

As per ACAS guidelines, gender pay reporting is “legislation that requires employers with 250 or more employees to publish statutory calculations every year showing how large the pay gap is between their male and female employees”.

It is important to note, gender pay gap reporting is different to equal pay. Equal pay is concerned with the pay differences between male and female employees in the workplace, who carry out the same or similar role. It is deemed as unlawful should you fail to pay someone equally on the basis of gender.

How Employment Law Services (ELS) Can Help Employers

Employers concerned about any of the issues raised in this article can take advantage of Employment Law Services (ELS) free consultation service – call us today to arrange your free consultation – 0800 612 4772.

Data Protection Bill set to launch in September

On the 7th of August, the Government outlined its objective for the new Data Protection Bill, it is due to be published next month and will merge the EU’s General Data Protection Regulation (GDPR) into legislation in the UK.

This legislation will now grant individuals the right to be forgotten and ask for any personal data held by others to be erased.

Organisations will have support through this process to make sure they are complying and managing data in line with regulations.

Should an organisation fail to meet requirements, the Information Commissioner will now have additional powers to defend consumer rights, meaning they can now issue fines of up to 17m or 4% of global turnover (whatever figure is higher) in the event that Data Protection Regulations are breached.

Minister of the Department for Digital, Culture, Media and Sport, Matt Hancock stated:

“Our measures are designed to support businesses in their use of data, and give consumers the confidence that their data is protected and those who misuse it will be held to account.

“The new Data Protection Bill will give us one of the most robust, yet dynamic, set of data laws in the world. The Bill will give people more control over their data, require more consent for its use, and prepare Britain for Brexit. We have some of the best data science in the world and this new law will help it to thrive.”

“The Data Protection Bill will allow the UK to continue to set the gold standard on data protection. We already have the largest internet economy in the G20. This Bill will help maintain that position by giving consumers confidence that Britain’s data rules are fit for the digital age in which we live.”

The Department for Digital, Culture, Media and Sport said further that the Bill would:

– Make it simpler to withdraw consent for the use of personal data;

– Allow people to ask for their personal data held by companies to be erased;

– Enable parents and guardians to give consent for their child’s data to be used;

– Require ‘explicit’ consent to be necessary for processing sensitive personal data;

– Expand the definition of ‘personal data’ to include IP addresses, internet cookies and DNA;

– Strengthen the law to reflect the changing nature and scope of the digital economy;

– Make it easier and free for individuals to require an organisation to disclose the personal data it holds on them;

– Make it easier for customers to move data between service providers.

The Government have said it will be a criminal offence if an individual “intentionally or recklessly re-identifies an individual from anonymised or pseudonymised data.”

In addition, those in association with this who handle or process the data knowingly, will also be committing a criminal offence.

A further offence will be conceived should an individual alter records with the intent of stopping them being identified when someone exercises their right to the data.

How can employers prepare for the reforms?

– Start to consider how to efficiently recruit and train a Data Protection Officer;

– Have in place a clear data policy that defines procedures, in particular data breaches;

– Review employment contracts that regard consent;

– Have in place clear privacy notices that are straightforward so that it is easily translated to your employees;

– Ensure there is a legitimate basis for the retention of data stored and for the transfer of any data. E.G. in relation to HR.

How can we help?

At Employment Law Services (ELS), we will work together with our clients to ensure they are fully protected and prepared for the new regulation to take effect in May 2018. If you have any specific queries about the impact this may have on your business or wish to contact us for a free consultation call us today on – 0800 612 4772.

Gender Inequality in workplace dress codes

Dress requirements in the workplace that consist of high heels and target young women in “insecure jobs” who already feel vulnerable in the workplace have been suggested as “damaging their health and wellbeing in both the long and short term”, a report concluded by Parliament earlier this year.

In reality, who knew that wearing high stilettos would be a job requirement of a receptionist at a leading City organisation?

A joint report published in January 2017 by the Women and Equalities and Pension Committees – ‘High heels and workplace dress codes’ – notes evidence that employees across the UK are being asked to wear stilettos, dye their hair and apply more make- up from their employers.

Footwear for women has slowly become something of an equality battlefield. There are many employers who enforce dress and appearance requirements on their employees. Generally, the purpose of this is to reflect the business image and reputation. Having dress codes can be justified under legislation, however, employers must be careful in their approach in the event that their working conditions may result in discrimination. In addition, it is important that employers are aware discrimination is not just on the grounds of sex, it can also come in the form of any of the other protected characteristics of the Equality Act 2010, which include – religion, disability and gender reassignment.

In 2016, it was reported that Nicola Thorpe, a 27-year-old female, who was employed by a top City firm in London was asked to go home after refusing to wear high heels to work. This story has been subject to criticism – is this principle legal, fair or healthy?

She reported to the BBC that she was “laughed at” when she told her employers that she did not wish to wear high heels on her first day as a corporate receptionist.

In September 2016, a survey published by Slater and Gordon discovered that 7% of women claimed their employers insisted they wore heeled shoes in the office and when with a client as it made them “more appealing”, 8% were asked to wear more make-up so that they “looked prettier”, Nearly 1/3 of those who participated in the survey admitted they had been asked to change their appearance as it would be “better for business”, 13% declared they made the choice to show more flesh in the office following advice from senior employees to ‘jazz up’ their appearance.

Following Nicola Thorpe’s experience, she set up a petition demanding from the Government that “women should have the option to wear flat formal shoes at work.” The petition stated that current legislation is “outdated and sexist.” Her petition saw 152,420 signatures and as a result of this, was debated in Parliament earlier this year.

In response to the petition, the Government stated that they were “taking action to remove the barriers to equality for women at work, which is why we are tackling gender pay gap, increasing the number of women on boards, increasing support for childcare costs and ensuring employers are aware of their obligations to pregnant women.”

“Employers are entitled to set dress codes for their workforce but the law is clear that these dress codes must be reasonable. That includes any differences between the nature of rules for male and female employees, otherwise the company may be breaking the law. Employers should not be discriminating against women in what they require them to wear.”

Going forward, employers should carefully consider their current dress code and is this necessary? Where a dress code is a requirement, you should ensure all employees religion and disability beliefs are taken into account and the code is not sanctioned to suit one sex and not the other.

Should an employee request that you are more flexible with dress codes in the workplace, you should consider both viewpoints – yours and theirs – before refusing them this request. If the business objection can be met whilst allowing this exception, you may find yourself liable for discrimination should you refuse it.

How can we help?

Employment Law Services (ELS) LTD will ensure you are well informed of updates as they come in. In the meantime, employers concerned about any of the issues raised in this article, can take advantage of our Employment Law Services (ELS) free consultation service – call us today to arrange your free consultation – 0800 612 4772.

Important case judgements employers should consider before making a decision

Six key employment case decisions, first posted by Personnel Today.

(1)  Tribunal Fees

R (On the application of Unison) v Lord Chancellor (Supreme Court)

On the 26th July, Unison won a landmark ruling that has been seen to support the principle of access to justice.

The seven judges in this case made the universal decision that the current system of the Employment Tribunal was unlawful and restricted individuals from access to justice. Thus, legislation is set to be introduced to abolish such fees.

The decision made in this case has been suggested as “one of the most important judgements in the history of employment law”. Stressing once again, that the Government cannot use their authority to control citizens access to justice.

The UK Government have now been ordered to reimburse around 32m to claimants that were charged a fee, dating back to 2013.

(2)  Long-term absence and disability issues

O’Brien v Bolton St Catherine’s Academy (CA)

In this case, Ms O’Brien had her contract of employment terminated following a period of long-term absence from work.

The decision made by the Court of Appeal in this case backs the “growing trend” of the number of claims heard on discrimination that has come as a direct result of a disability.

At the initial appeal hearing, the claimant handed her employer medical evidence in support of her absence – this evidence determined that she was unfit to return to work.

Despite this, the appeal panel were not convinced and as a result of this, the dismissal was upheld.

This case in the courts opinion, was submitted as “near borderline”, however, it was established that it was unreasonable of the employer who overlooked new evidence and failed to implement an additional medical assessment.

(3)  Shared Parental Pay

Ali v Capita Customer Management Ltd (employment tribunal)

Shared parental leave was first implemented in 2015. Since then, there has been matters of contention around whether employers should be enhancing shared parental pay if they enhance maternity pay.

In this case, Mr Ali’s wife had been suffering from post-natal depression, her GP recommended that to aid recovery, she should return to work at her earliest convenience.

Because of this, Mr Ali requested shared parental leave from his employer. His workplace policy stated that women on maternity leave should receive full salary for 14 weeks and any time after that would be paid at a statutory rate.

The claimant logged a complaint to the Employment Tribunal on the grounds that by his employer refusing to enhance his pay, resulted in sex discrimination.

In this instance, the Employment Tribunal upheld Mr Ali’s claim because the role of a child’s primary carer should be left to that child’s parents to decide. This arrangement should be made free of “generalised assumptions” that the mother will always be best placed to undertake that role and receive full pay.

It is important that employers note, this case is an original decision and consequently not binding, it has been recommended that employers look out for the appeal court decision before certainty will be confirmed.

(4)  Religious wear in the workplace

Bougnaoui and another v Micropole Univers Achbita and another v G4S Secure Solutions NV

In 2017, the European Court of Justice provided judgements on the grounds of religious dress in the workplace.

In the Belgian case of Achbita and Another v G4S, the Advocate General gave an opinion on when employers can restrict employees from wearing religious dress, such as, Muslim headscarves.

The Advocate General in this case submitted that the employer can ban the Muslim headscarf, if the reason behind this is to maintain religious and political neutrality in the workplace.

Nonetheless, the Advocate General in the French case of Bougnaoui, was seen to oppose this. Suggesting, that an employer could not ban religious dress on the grounds of neutrality or on the grounds that a client or customer objects.

In Achbita, it was held that as long as the ban on religious dress is universal and applied consistently throughout the workplace, a blanket ban would not be deemed as a matter of direct discrimination. However, it could result in indirect discrimination is the employer fails to justify his reasoning behind the ban.

In Bougnaoui, it was held that asking an employee to remove religious wear on the grounds that a customer or client objects, cannot be justified and a defence will only be deemed appropriate in specific circumstances.

(5)  Recruitment and Disability Discrimination

Government Legal Service b Brookes (EAT)

In this instance, as part of the job application, the employer asked that all applicants carried out an online multiple choice psychometric test.

The claimant in this case suffered from Asperger’s Syndrome and asked the employer if she could carry out the test through answers in a short narrative form due to her disability.

The employer refused this request and she was told that going forward, an alternative would not be made available.

The claimant brought a claim in front of the Employment Tribunal on the grounds of disability discrimination.

The EAT upheld the Employment Tribunals decision, and that by the employer requiring applicants to complete the test put the claimant at an automatic disadvantage.

Despite the employer having a legitimate aim when requiring individuals to complete the test, the means behind achieving this test was not proportionate.

(6)  Whistleblowing

Chersterton Global Ltd and Another v Nurmohamed

In 2013, the Government changed the legislation around whistleblowing. The law now provides that a disclosure will not be protected unless the employee has reason to believe the admission made is of public interest.

In this case, the Court of Appeal upheld the preliminary decision of the Employment Appeal Tribunal, that accusations about accounting negligence concerning bonuses and commission, affected 100 senior managers and were therefore in the public interest.

The Court of Appeal suggested that the statutory test that is applied when determining what is “in public interest” does not set absolute rules and the Employment Tribunal ought to take a number of different elements into consideration.

These include: The number of employees involved and the importance of the matter.

How can we help?

Employment Law Services (ELS) LTD will ensure you are well informed of updates as they come in. In the meantime, employers concerned with about any of the issues raised in this article can also take advantage of our Employment Law Services (ELS) free consultation service – call us today to arrange your free consultation – 0800 612 4772.