Employment Law Archives | Page 3 of 6 | Employment Law Services (ELS) LTD

Does ‘misconduct’ need to be ‘gross’ to make a dismissal (without prior warnings) fair?

Posted on 6 June 20188 June 2023 by @deliver_els

Does dismissal need to be ‘gross’ to make a dismissal fair?

No, held the Employment Appeal Tribunal (EAT) in Quintiles Commercial v Barongo.

In this case, the Claimant worked in pharmaceutical sales and found themselves dismissed on the grounds of misconduct after failing to complete compliance training and not attending a compulsory training course.

On appeal, the employer re-classed the dismissal as serious, yet, upheld the dismissal. The Employment Tribunal (ET) argued that the dismissal was unfair, maintaining that for serious misconduct dismissals prior warning should be applied.

The EAT upheld the employers appeal on the grounds that s90 (4) of the Employment Rights Act does not specify that dismissing an employee without prior warning for conduct that falls short of gross misconduct must be unfair. Although in most cases, such dismissals are outside the band of reasonable responses.

The ET approached this case with the firm view that where conduct fell short of gross misconduct, dismissal could only be viewed as appropriate is prior warnings were in place. The ET should have taken into consideration the entire circumstances of this case, including the ACAS Code of Practice and the employer’s disciplinary procedure. This case has been referred to a new ET for reconsideration.

When considering the fairness of a dismissal, tribunals have to determine whether the employer has acted reasonably or unreasonably in treating the reason given by the employer as an adequate reason to dismiss.

If an employee has committed an act of gross misconduct, then clearly there will be a sufficient reason to dismiss. But what exactly is viewed as gross misconduct?

Gross Misconduct

Gross misconduct occurs when an employee has acted so badly that the employer/employee relationship is destroyed. In this event the employer merits the right of instant dismissal without notice or pay of notice.

It is recommended that employers give equip their employees with a clear indication of what type of behaviour will be considered as gross misconduct. Such provisions should be set out in the contract of employment or within the staff handbook. This then allows employers and employees to easily identify such behaviour in advance and will help determines later that you regard it as significant.

Examples of gross misconduct include, intoxication, theft, bullying or harassment, serious breaches of health and safety rules and fighting or physical abuse.

Depending on the nature of the organisation, employers may wish to detail other offences. Such as, accepting or offering bribes, misuse of confidential information or setting up a competing business.

Employment Law Support for Employers

Terminating the employment relationship should always be a last resort and it is crucial that employers seek legal advice before taking drastic action.

If you are an employer and require employment law advice on workplace policies 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.

Government Equalities Office has published new guidance on dress codes & sex discrimination

Posted on 25 May 20188 June 2023 by @deliver_els

Setting a workplace dress code – your responsibilities as an employer

Dress codes are seen as a legitimate part of an employer’s terms and conditions. There are many different reasons why employees may be asked to wear a uniform. For example, an employee may be asked to wear a uniform to communicate a corporate image and ensure that its customers/clients can easily recognise them. However, it is important that this dress code does not discriminate, for example, allowing both men and women to wear trousers in the workplace.

Government guidelines state employers should avoid gender prescriptive requirements. For example, any requirement to wear make-up, have manicured nails, wear hair in certain styles or to wear specific types of hosiery and skirts will be viewed as unlawful, assuming there is no equivalent requirement for men. These guidelines state further: “A dress code that requires all employees to dress smartly would be lawful, provided the definition of smart is reasonable.”

Health & Safety

When setting a dress code, employers should consider any health and safety implications. For example, if your employees are required to wear particular shoes (as part of a dress code rather than for PPE purposes).

Reasonable adjustments for disabled employees

Where an individual meets the definition of a disabled person under the Equality Act 2010, employers will be required to make reasonable adjustments to any elements of the job which may place a disabled employee at a disadvantage in comparison to a non-disabled person.

Transgender employees

Transgender people are those who have gender identity or gender expression that differs from their assigned sex. Many of whom will undergo the process of aligning their life and physical identity to match their gender identity – this is called transitioning.

Government guidelines state: “Transgender employees should be allowed to follow the organisations dress code in a way which they feel matches their gender identity. If there is a staff uniform, they should be supplied with an option which suits them.”

Dress codes and religion

An employer’s uniform requirements must not be discriminatory in respect of the protected characteristics governed under the Equality Act 2010 – religion being one of these characteristics.

Guidelines provide that employers should be flexible and not set dress codes which prohibit religious symbols that do not interfere with an employee’s work.

Frequently asked questions by employers

“Is it lawful for an employer to set dress codes for men and women?”

Employers can regulate what their employees wear to work to a certain extent. However, men and women should be treated equally. For example, if you require male employees to wear a shirt and tie, then it would not be unlawful to ask female employees to dress in smart office attire.

“Is it lawful to ask a female employee to wear high heels to work?”

It is likely to be viewed as unlawful asking a female to wear heels to work, due to the discomfort and health complications that come with high heels, there is also no male equivalent.

Mental Health Awareness Week 2018

Posted on 14 May 20189 June 2023 by @deliver_els

Mental health awareness week (14^th-20^th May 2018) focuses on stress and how we cope with it.

This blog will look at helping employers and employees create a mentally healthy working environment where everyone feels valued and supported.

What is mental health?

Mental health includes a person’s emotional, physiological and social well-being. It affects how we think, feel and act. It also determines how we handle stress, related to others and make choices.

Why is recognising and addressing mental health so important?

Employees who feel good about themselves tend to work more productively, interact better with others and bring value to the workplace.

A survey, commissioned by the Mental Health Foundation and Mental Health First Aid England found that a quarter of millennials said they put their health at risk to do their job, compared with 18% of baby boomers – those aged between 53 and 71.

A study conducted by the Chartered Institute of Personnel and Development (CIPD) highlights the impact mental health has on the workplace. The main findings of this study were:

57% find it harder to juggle multiple tasks
80% find it difficult to concentrate
62% take longer to do tasks
50% are potentially less patient with customers/clients

Here are a few simple steps you can take to ensure your workplace is mentally healthier:

(1) Recognise that all employees have mental health

It is important that employers are aware that all employees have mental health, in the same way an individual has their physical health. Both can deteriorate from good to bad, depending on circumstances that may be going on in and out of the working environment.

(2) Keep in contact with employees who are off with a mental health issue

You should find the right balance when keeping in touch with an employee who is off sick, employers should be aware that the longer an employee is off with a mental health issue, the less likely they are to return to work. This is because they will begin to lose confidence and feel kept in the dark from the business. Therefore, whilst an employee is off on long-term sick leave, employers and managers should:

Be clear the business will support the employee during this period and their job will still be there when they return
Keep employees in the loop about important developments at work
Have an open door policy so the employee can approach you at any time with concerns they may have

(3) Culture

Employers should develop a mental health policy, by doing this employee’s will be reassured that the business cares for their wellbeing. Having these policies in place will create an overall awareness in the workplace and encourage individuals to talk about mental health.

(4) Communication

Employers should use staff newsletters, posters and other internal communications to promote mental health awareness. As well as this, introducing discussions into staff meetings can be used as an opportunity to check in with how employees are feeling.

(5) Ensure all managers are properly trained

By training up managers, employees will be reassured that their management team is educated in mental health matters, meaning they will feel more inclined to come forward and discuss any problems they may be having in and out of the working environment.

(6) Zero tolerance to bullying policies

All employers should ensure there is a zero-tolerance approach taken to bullying in the workplace. It should be communicated in these policies that those found guilty of such conduct will be subject to disciplinary action.

Employment Law Support for Employers

The Supreme Court hands down its long-awaited decision in the appeal of Newcastle upon Tyne Hospitals NHS v Haywood

Posted on 1 May 201812 June 2023 by @deliver_els

This complaint was brought by Haywood who was dismissed after being made redundant by her employers, Newcastle upon Tyne Hospitals NHS Foundation Trust. In this case the claimant had worked for the NHS for over 30 years as an associate director of business development.

The provisions of her employment contract ensured that she was entitled to a minimum 12-week notice period but was silent on how the notice should be communicated.

On the 13^th April, Haywood received the news that her role was at risk of redundancy following the merger of the two NHS bodies. She accepted this, however, requested that the final decision should not be made in her absence – informing her employers she was on annual leave from the 19^th April 2011 – these holidays had already been approved by her employers.

On the 20^th April, the Trust sent a letter to Haywood that provided her with a written notice of termination – with the knowledge that she was away on holiday at the time.

However, they mistakenly said that they had given her written notice that was dated the 21^st April, which appeared to be misdated; the letter was sent on the 20^th April to her home address by recorded delivery and by normal post. A copy of this letter was also sent to her husband’s email address.

This meant that should the claimants employment be terminated before her 50^th birthday, she would receive a reduced pension.

Because Haywood had told her employers she would be on holiday and would not be back until 26^th April, there was no one at home when the recorded delivery letter arrived.

It wasn’t until the 26^th April that her father in-law went and collected the letter from the local sorting office. Haywood then returned home from her holiday on the 27^th April, it was this date that the letter was read.

Her employers claimed that the notice was communicated effectively on the 20^th April, which meant her 12-week notice period lapsed before her 50^th birthday, which fell on the 20^th July.

The claimant argued that the notice of termination was not communicated until she actually read the letter on the 27^th April. Thus, her termination date would be after her 50^th birthday.

Both the High Court and the Court of Appeal upheld this case, agreeing that the claimants notice period commenced on the 27^th April, with the Court of Appeal expressing that the effective date is when the individual reads the termination letter.

A statement from the Supreme Court read: “On the unusual facts of this case, the date on which the 12-week notice period started to run was highly material. If it commenced on the 27^th April, it expired on the 20^th July 2011 – the date of Mrs Haywood’s 50^th birthday – and Mrs Haywood would be entitled to claim a non- actuarially reduced early retirement pension.”

Due to the absence of an expressed contractual provision, the courts had to determine the implied contractual term to work out when the notice to effect. Haywood’s employers argued that a common law rule, that originated from landlord and tenant cases, maintained that notice was given when the letter was delivered to the claimant’s address.

Haywood was then dependent on the approach taken by the Employment Appeal Tribunal (EAT) in previous employment cases; that notice takes effect when it has been received and read by the employee. The Supreme Court majority supported this approach and agreed that the EAT was correct.

Employer considerations

The decision made in this case is important for both employers and employees, as the date in which the employment relationship is terminated can play a crucial factor when determining an employee’s entitlement to a bonus or contractual payment, insurance, employee benefits, the right to claim unfair dismissal, redundancy pay and pension rights.

How can Employment Law Services (ELS) help?

For employers that already have contracts of employment in place, we can review all existing documents and update them as required; for employers that have nothing in place, we can produce effective contracts of employment for all employees from scratch.

Therefore, 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.

Supporting employees during Ramadan 2018

Posted on 26 April 201812 June 2023 by @deliver_els

This year Ramadan begins on the 16^th May and will last for 30 days, until the 14^th June. Ramadan is the 9^thmonth of the Islamic calendar and is observed by Muslims worldwide as a month of fasting to commemorate the first revelation of the Quran.

Throughout this period, Muslims will fast and engage in extra prayers and worship. Therefore, it is extremely important employers are aware of their obligations towards their Muslim employees.

What does the law say?

In the Equality Act 2010, religion or belief can mean any religion. For example, an organised religion like Christianity, Judaism, Islam or Buddhism, or, a smaller religion like Rastafarianism or Paganism. Legislation also covers those with no beliefs or lack of beliefs.

Therefore, it will be viewed as unlawful should you treat an employee less favourably because of their religion or beliefs.

Have workplace policies on religious observance

Employers should have workplace policies regarding religious observance during working hours. This will ensure the workplace is consistent and managers are aware of what they can do to support employees. Lack of policies or failing to support your employees will expose the business to complaints of religious discrimination.

Employers and managers should be considerate and understanding

Throughout Ramadan, managers should be mindful of Muslim colleagues and offer support to help manage their workload. Employers may find that the productivity levels of employees who are fasting are affected, thus, employees should not be unduly penalised or criticised in the even that they lose productivity during fasting hours.

Flexible working

Where possible, employers may wish to consider implementing flexible working arrangements during Ramadan, all of which should be clearly set out in the workplace religious observance policy. In this instance, employees may prefer to start working earlier and work right through lunch in order to finish early. Employers will find that productivity is less likely to be affected when employees are granted the right to work flexibly during Ramadan.

Be corporative with holiday requests

With Ramadan ending in the middle of June this year, Muslim employees may wish to take annual leave to allow them to celebrate Eid with friends and family. There is no automatic legal requirement to time off, however, employers and managers should try their best to accommodate any requests during this time period.

Should an employer decide to refuse an employee time off following Ramadan, there should be a clear and fair reason provided as to why their annual leave request cannot be accommodated at that time.

How can Employment Law Services (ELS) Help?

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.

EAT says father who was refused enhanced shared parental pay was not discriminated against!

Posted on 16 April 20188 June 2023 by @deliver_els

The Employment Appeals Tribunal (EAT) has ruled it is not discriminatory to refuse a new father enhanced pay whilst on shared parental leave.

In Ali v Capita Customer Management the judge held that the Employment Tribunal (ET) had failed to take into consideration the purpose of paid maternity leave when it reached its decision and ruled that it was not a matter of discrimination refusing the father the same rights as the new mother following the birth of their child.

In 2017, the ET held it was direct sex discrimination to allow Mr Ali only 2 weeks leave on full pay, when female employees were allowed 14 weeks maternity leave with full pay.

In this case, Mr Ali’s wife had been advised by her GP to return to work early to help with her post-natal depression. Mr Ali’s employers granted him 2 weeks fully paid paternity pay and a number of weeks paid annual leave following the birth of his child.

However, Mr Ali’s employers had only offered statutory minimum pay thereafter, this meant that once he had taken his 2 weeks paternity leave, everything after would be a substantial loss in earnings.

Mr Ali lodged a complaint to the ET claiming that his employers refusing to pay him the same rate as his partner was direct sex discrimination. His employers appealed this, arguing that Mr Ali could not compare his situation to the new mother on maternity leave as he was not the one who had given birth.

The ET responded agreeing with Mr Ali, arguing that he had not compared himself to the mother who had given birth. Suggesting further, that after the initial two – week recovery period that is specific to a baby’s mother, a female employee on maternity leave was an appropriate comparator; it was irrelevant that Mr Ali had not given birth.

Last week, Capita Customer Management won its appeal against the ET decision.

The EAT held that the ET had poorly interpreted Mr Ali’s circumstances. Arguing that the purpose of maternity pay and leave is to recognise the “health and wellbeing of a woman in pregnancy, confinement and after recent child birth.”

Working Families’, Chief Executive, Sarah Jackson said: “We intervened in this case because the particular workplace disadvantage women face having experienced pregnancy and child birth must continue to be recognised in law. Only women can experience child birth and maternity leave is to protect a women’s health and wellbeing – it cannot simply be equated with ‘child care’.”

However, she does highlight the importance of providing men with greater childcare rights. “We have long called for greater rights and pay for working fathers – including a properly – paid, standalone period of extended paternity leave for fathers – but these should complement, not undermine, the rights of working mothers.”

Employers will be happy to hear they do not have to take any drastic measures to amend workplace policies immediately. However, they should be aware of any potential risks and challenges that may be made by male employees and be fully prepared to proceed with complaints should they arise.

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.

April 2018: Important employment law updates

Posted on 5 April 20187 June 2023 by @deliver_els

April is always one of the busiest months of the year in the world of employment law. Here is a summary of the key updates employers should be aware of:

(1) National Living Wage & National Minimum Wage

The NLW is to increase from £7.50 to £7.83 per hour while the NMW will increase as followed: –

21 to 24-year-old rate from £7.05 to £7.38 per hour;
18 to 20-year-old rate from £5.60 to £5.90 per hour;
16 to 17-year-old rate from £4.05 to £4.20 per hour;
Apprentice rate from £3.50 to £3.70 per hour;

(2) Statutory Benefits

On the 1^st April, statutory maternity/paternity/adoption/shared parental pay and maternity allowance will increase to £145.18 per week (currently £140.98 per week).

As of the 6^th April, statutory sick pay will increase to £92.05 per week (currently £89.35 per week).

(3) Tribunal Compensation

Compensation limits are minimum awards payable under employment legislation and are set to increase on the 6^th April. Increases go as followed:

Maximum limit on compensatory award for unfair dismissal will increase to £83,682 (currently £80,541);
Maximum limit on a week’s pay for calculating basic award and statutory redundancy payments will increase to £508 (currently £489);
Guarantee pay will increase to £28 per day (currently £27 per day);
The minimum basic award in cases where a dismissal is unfair by virtue of health and safety, employee representative, trade union, or occupational pension trustee reasons will increase to £6,203 (currently £5,970);
Award for unlawful inducement relating to trade union membership or activities, or for unlawful inducement relating to collective bargaining will increase to £4,059 (from £3,907)
Minimum amount of compensation where individual excluded or expelled from union in contravention and not admitted or re-admitted by date of tribunal application will increase to £9,474 (currently £9,118)

(4) Taxation of Termination Payments

As of 6^th April, all payments made in lieu of notice, will be taxed, regardless of whether they are contractual or not.

(5) Gender Pay Gap Reporting

The 4^th April is the deadline in which gender pay gap reports should be published. These results must be made public on the employer’s website and a government site. This means the public, customers, employees and potential recruits will have access to these figures.

Employers should consider taking new or faster actions to reduce or eliminate their gender pay gaps.

How can Employment Law Services (ELS) Help?

How to manage a disgruntled ex-employee

Posted on 4 April 20189 June 2023 by @deliver_els

As an employer, you will eventually experience a disgruntled ex-employee. The problem with an angry former employee is they pose a risk to your business. Therefore, the sooner this situation is addressed, the better.

All employers should ensure they take the following steps:

(1) Arrange An exit interview with the employee

When an employee hands in their letter of resignation, employers should arrange an exit interview to allow them to understand their thoughts and reasoning behind the resignation.

In the exit interview, the employee should be reminded of their contractual duties whilst working their notice. For example, the employee may be reminded of clauses in connection to confidentiality and accessing company records.

If it states in the employment contract things they should not do when leaving the company, they should be reminded of this too and that the company will deal with any breaches.

(2) Ensure you have robust contracts of employment in place

Post termination restrictive covenants are contractual clauses which may be set out within a contract of employment. If this is the case, employers should use them when an employee hands his/her notice in.

The most common restrictions an employer may place on an employee who wishes to terminate the employment relationship are:

General confidentiality clauses; these make it unlawful for the employee to disclose sensitive information about the organisation and its clients
Non-solicitation clauses; this means the employee cannot approach the organisations existing clients when the employment has been terminated
Non-dealership restrictions; such clauses prevent the employee from doing business with the organisations clients after they leave the employment

(3) Have everything documented

Since the Supreme Court made the decision to abolish tribunal fees in July 2017, employees can now bring a claim to the Employment Tribunal without that financial barrier. It is therefore extremely important that employers document everything to minimise risks associated with the Employment Tribunal. Employers should keep all important documents, including, the employee’s resignation letter and any minutes taken at the exit interview.

How can Employment Law Services (ELS) Help?

Tribunal claims increase by 90% since the abolishment of fees!

Posted on 12 March 201812 June 2023 by @deliver_els

The Ministry of Justice has released its latest round of data on Employment Tribunals and key figures show:

Single Employment Tribunal claims received have increased by 90%
Single Employment Tribunal claims disposed of have increased by 21%
The backlog of single Employment Tribunal claims have increased by 66%
Multiple Employment Tribunal claims received have increased by 467%

From the launch of the Employment Tribunal refund scheme in October 2017 to 31^st December 2017, 4,800 applications for refunds were received, and 3,400 payments with a total value of £2.8m were made.

These statistics suggest that employers will continue to face a rapid increase in claims as employees are no longer restricted from using the Employment Tribunal process.

It is evident that this new advantage of being able to lodge an Employment Tribunal claim, is increasing costs for business owners and placing a significant amount of pressure on Employment Tribunals who have had to cut staff. In turn they are struggling to manage caseloads and as a result, outcomes are being delayed.

How can Employment Law Services (ELS) Help?

Pimlico Plumbers case heard in the Supreme Court

Posted on 21 February 201812 June 2023 by @deliver_els

Yesterday, the Supreme Court heard a crucial gig economy case with Pimlico Plumbers challenging last year’s Court of Appeal decision that a plumber who signed an agreement with the company defining himself as self-employed, was in fact a worker.

Last year, in Pimlico Plumbers Ltd & Another v Smith, the Court of Appeal held that a plumber was a worker under statutory provisions which should have entitled him to the rights of a worker throughout his employment.

In this case, Gary Smith was required under agreement to wear a uniform with the company’s logo on display and drive a van that was leased from the company. In addition, he was also required to work a minimum number of hours each week.

When Pimlico Plumbers v Smith reached the Court of Appeal; it was accepted that he was a worker, which entitled him to basic employment rights. Such as, the right to National Minimum Wage & the right to paid annual leave.

In this instance, the Court of Appeal had been particularly swayed by Mr Smith’s requirement to provide his services personally. His agreement with his employers did not allow him to get someone else to carry out his duties.

Charlie Mullins, who is the Chief Executive of Pimlico Plumbers said: “The outcome of the case will have huge ramifications for a large part of the economy, including the media, the health service and of course the construction industry.”

“In one three-year period Mr Smith earned more than £500,000 as a self-employed contractor, but when his circumstances changed he wanted me to foot the bill for sick and holiday pay, as well as to grant him other employment rights, which he was not entitled to, and which in my view he had already been paid to take care of for himself.”

Mullins argues that this case is not like Uber and other gig economy cases.

“The engineers who contract to Pimlico Plumbers are very highly-skilled individuals, can go anywhere and do whatever they want.”

“Pimlico Plumbers wants to comply with its obligations and it has always been our genuine belief that we have been doing that. HMRC has looked into the situation in the past and told us that engineers are self-employed. We have been operating in accordance with this.”

If the Supreme Court dismisses the appeal from Pimlico, like Uber, it has been predicted that we will see a notable transformation within the ever-growing gig economy. This means employers will have to adjust their business models to minimise risks associated with worker status.

This hearing is set to last 2 days with judgement expected in early March.

We will keep employers informed of updates as and when it comes in.