2015 in Employment Law – our top 10 stories

As we near the end of the year we have been reflecting on what we feel the most important employment law developments have been in 2015. We have had a look at which of the stories on our website have been the most popular with our readers, and which topics we have received the most enquiries about from our clients.

In reverse order:

10. Shared Parental Leave

The new right to Shared Parental Leave was introduced in April and we ran a successful series of workshops in the spring to help employers prepare. It is still fairly early days for the new rights, but so far, as we predicted, the take up seems to be low. This may partly be due to the extremely complex rules around eligibility and notification, as well as the low pay. Our most recent article on shared parental leave can be found here.

9. Whistleblowing

You would think that in a piece of legislation called the Public Interest Disclosure Act, the question of public interest would have been one of the first points to be clearly established, but it definitely isn’t that simple! Since the law came into effect in 1999 the extent to which whistleblowing has to be in the ‘public interest’ has virtually gone full circle. Now we seem to be almost back where we started, which is that the requirement for public interest seems to be very limited indeed. Our recent article on the latest development can be found here.

8. Woolworths and collective consultation

As you may recall, last year one of the key cases involved the question of what an ‘establishment’ was for the purposes of collective redundancy consultation. This matters because if 20 or more employees are redundant at one establishment within a 90 day period there is a requirement to go through collective redundancy consultation. The decision in 2014 was that the words ‘at one establishment’ should be deleted, meaning that many more situations would potentially be caught by the collective redundancy rules. Fortunately for employers, the decision was overturned in 2015, meaning that (using the Woolworths example) each individual store would constitute a separate establishment. This meant that for any stores with fewer than 20 staff the requirement for collective consultation was not engaged. Our article on the latest judgment can be found here.

7. Sickness and holiday – carry forward

The long-running issue of sickness and holiday just will not go away, and this year the courts looked at the question of how long leave could be carried forward where an employee has been prevented from taking it due to their sickness absence. In the case of Plumb v Duncan Print Group, the Employment Appeal Tribunal said there could be an 18 month ‘expiry date’ on unused leave. Our article on the case can be found here.

6. Taxation of Termination Payments

This isn’t strictly speaking a 2015 development, as although changes have been proposed, no details have been announced yet as to what they will actually look like. Nevertheless, we have included this in our list because it is something that will have far-reaching implications for employers and employees. Our latest article on this can be found here.

5. Travel time for mobile workers

Organisations which employ mobile workers have been grappling with the latest development from the European Court in the Tyco case, which established that the first and last journey of the day do count as working time. This means that employers need to look carefully at their existing arrangements to ensure that workers are receiving sufficient rest breaks and daily and weekly rest, and also that their average working hours are within the weekly limit of 48 hours (unless the worker has opted out). Our article on the case is here.

4. National Minimum Wage – Travel time and sleep ins

Although these issues are not relevant to every organisation, for those who have staff at or near National Minimum Wage these can be ‘make or break’ matters. In this year these points came under scrutiny from HMRC and the courts. Our article can be found here, and our article on a subsequent development in relation to sleep ins is available here.

3. The National Living Wage

This was a surprise announcement by George Osborne in the Budget in July, and has huge implications for those in sectors with low margins, including retail, hospitality, charities and social care. Effectively the National Living Wage is a ‘premium’ on top of the National Minimum Wage for workers over 25, and it will take effect from 1 April 2016. More information can be found in our article here.

2. HR as an ‘improper influence’

The case of Ramphal v Department for Transport was one that caused great concern to our clients and contacts. In the case, the Employment Appeal Tribunal roundly criticised HR for having influenced the outcome of a disciplinary hearing, which has brought into question exactly how far HR can go in advising managers about the outcome of disciplinary and grievance matters. The case also highlights the fact that previous drafts of documents can be disclosable, and also that internal communication to and from HR to seek advice can form part of the evidence at Tribunal. Our article on the case is here.

1. Holiday pay – taking into account overtime, commission etc.

This was a big development towards the end of last year, and unsurprisingly this area of case law continued to dominate employment law in 2015 too. This is a key issue because it affects such a huge number of employers across virtually all sectors. July 2015 saw the introduction of a new rule limiting the backdating of any wages claims (including holiday pay) to a maximum of 2 years. We commented on the Patterson case (from Northern Ireland) where the Court of Appeal found that voluntary overtime should be taken into account in holiday pay if it is regularly worked (our article is available here). Our employer clients are understandably hungry for definitive law on how to deal with holiday pay cases, such as what reference period to use, and what types of overtime and commission are included – unfortunately it is likely to take quite some time for cases to work their way through the court system, so in the meantime it is best to take advice on the options available.

Do you agree with our list? What do you think the main issues will be for 2016? We would love to hear your feedback.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

A warning for employers – do what you say you will do!

The Employment Tribunal recently had to consider an unusual set of circumstances in the case of John-Charles v NHS Business Services Authority. The facts are that in October 2012 Dr John-Charles was alleged to be in breach of his employer’s IT policies. The matter was investigated, but not with any great urgency, and Dr John-Charles was told at the end of February 2013 that the matter would be considered at a disciplinary hearing to be heard on 7 March 2013.

In the meantime, Dr John-Charles had received a written warning in relation to a totally separate incident where he had refused to obey his manager’s instructions. Dr John-Charles was advised by HR that the person holding the disciplinary hearing in March 2013 would not be told about the warning issued to him in January.

The disciplinary hearing relating to the October 2012 incident did start to be heard on 7 March 2013, but then on 13 March 2013 the manager holding the hearing notified Dr John-Charles that she was delaying matters as she thought there may be a health issue for him in continuing at that time. The manager then indicated to Dr John-Charles that she was inclined to issue a final written warning in relation to the October 2012 incident. She then became aware of the other warning issued in January 2013 and decided to dismiss him. This decision was communicated to him on 13 May 2013.

Dr John-Charles instigated proceedings in the Employment Tribunal claiming unfair dismissal. He argued that the Authority should not have taken into account a warning which related to an incident which occurred at a later date than the incident which was being considered. The Tribunal rejected this argument. They held that the Authority was properly able to consider the later warning and that in all the circumstances the Authority’s decision did not fall outside the range of reasonable responses test in determining whether a dismissal was fair or not, and as such they dismissed the claim for unfair dismissal.

Dr John-Charles appealed to the Employment Appeal Tribunal (EAT). There were two grounds of appeal. The first was that the Tribunal should have found the dismissal unfair because they should not have allowed the Authority to bring the January 2013 warning into the consideration of the correct sanction to impose for the October 2012 incident. The EAT rejected this argument and upheld the Tribunal’s decision on that point. The second ground of appeal was that Dr John-Charles had been told that the manager holding the disciplinary hearing relating to the October 2012 incident would not be informed about the January 2013 warning. They were, and this information fundamentally changed the decision which the manager decided to impose. Before they became aware of the January 2013 warning they had indicated that they were minded to issue a final written warning in relation to the October 2012 incident; once they became aware of the other warning they changed that decision to one of dismissal. The EAT held that by misleading Dr John-Charles on this point the authority had failed to accord him natural justice in this regard. They therefore overturned the decision of the Employment Tribunal and substituted a finding of unfair dismissal.

The facts of this case are pretty unusual, but they do make the point that if you tell an employee something about disciplinary sanctions, then you need to make sure you act in accordance with what you have told them!

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected])

Please note that this update is not intended to be exhaustive or be a substitute for legal advice.  The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

 

Departing from an agreed reference was disability discrimination

We deal with a lot of Settlement Agreements between employers and departing employees, and often an agreed reference forms part of the deal. Following on from our recent workshops on Settlement Agreements, and Nicola’s article last month on myths about Settlement Agreements, we now look at a recent case highlighting some of the issues that can occur when an employer strays from the agreed reference in a Settlement Agreement.

The recent case of Pnaiser v NHS England and Coventry City Council concerned whether a negative reference, and the subsequent withdrawal of a job offer because of that reference, amounted to discrimination arising from disability.

Ms Pnaiser was employed by Coventry City Council and had significant absences from work due to a medical condition which amounted to a disability under the Equality Act 2010. She was made redundant by the Council and signed a Settlement Agreement which included an agreed reference. Ms Pnaiser was later offered a job with the NHS, subject to satisfactory references. One reference, which was obtained from a Dr Fleming, mentioned that she had undergone surgical procedures, causing two occasions of absence. When the NHS requested a reference from the Council, they received a reference in the form that had been agreed in the Settlement Agreement. The reference was sent by Ms Pnaiser’s former line manager, Ms Tennant, with an offer to discuss the matter further. Professor Rashid, who had interviewed Ms Pnaiser, subsequently telephoned Ms Tennant.

Professor Rashid said Ms Tennant told him that Ms Pnaiser had had significant time off work, that she would not employ Ms Pnaiser in the role and that she did not think Ms Pnaiser would be able to undertake the role.

The NHS withdrew the job offer, and Ms Pnaiser brought claims of discrimination arising from disability against the NHS and the Council (the Respondents).

Discrimination arising from disability occurs when: A treats B unfavourably because of something arising in consequence of B’s disability. A will not be liable if it can show the treatment is a ‘proportionate means of achieving a legitimate aim’ (neither Respondent raised this argument in this case). There will be no discrimination arising from disability if A can show that it did not know, and could not reasonably have been expected to know, that B had the disability.

The Council conceded that they were aware of Ms Pnaiser’s disability. The Employment Tribunal found that Professor Rashid, and therefore the NHS, ought to have known of Ms Pnaiser’s disability because of the comments in Dr Fleming’s reference, Ms Tennant’s mention of significant absence and Professor Rashid’s own knowledge and understanding. Ms Pnaiser’s claims, however, were dismissed. The Tribunal found that she had failed to shift the burden of proof onto either Respondent to prove that their treatment of her was not discriminatory.

Ms Pnaiser appealed to the Employment Appeal Tribunal. The EAT allowed Ms Pnaiser’s appeal and found she had been subject to unlawful discrimination. The EAT found that the Tribunal had set an “impermissibly high hurdle” by requiring Ms Pnaiser to show that the only inference that could be drawn was a discriminatory one before it could conclude that the burden of proof shifted to the Respondents. The EAT said that the question should have been whether the absence was consciously or unconsciously a reason in Ms Tennant’s mind for giving the negative reference. The EAT felt that in this case, it had been.

This case highlights some of the risks faced by employers in straying from the reference that has been agreed as part of a Settlement Agreement and in giving verbal references. Prospective employers can find themselves in a difficult position when they receive a negative reference about a potential new employee which causes them to consider withdrawing the job offer, but which may also lead to claims of discrimination.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

True or False: Myths about Settlement Agreements

 

We are currently in the midst of our series of workshops for employers on Settlement Agreements and thought it would be helpful if we put together an article about some of the myths that seem to persist about them.

Some of these are based on points raised at the workshops so far – others are from our experience of dealing with hundreds of Settlement Agreements every year (for both employers and employees, although not at the same time of course!). We hope you find them helpful!

–  “If I use a Settlement Agreement it will make the payment tax-free”
FALSE

We quite often hear this one, and wanted to put the record straight. The Settlement Agreement doesn’t change the tax status of any of the payments the employer is making to the employee. If a payment can genuinely be made without deduction of tax then it can be paid tax free regardless of whether a Settlement Agreement is in place or not. Likewise, if a payment is properly taxable then a Settlement Agreement cannot change that fact.

The Settlement Agreement can however change who is liable for any tax, and it is quite common for it to contain a tax indemnity whereby one party (usually the employee) agrees to be responsible for any tax (and interest, penalties etc). It would be perfectly possible for a tax indemnity to be given without a Settlement Agreement being in place, but the majority of employers like to get the terms tied up in a Settlement Agreement along with a full and final settlement.

– “Once we’ve made an offer we can withdraw it at any time until it is accepted.”
TRUE

As with any contract you might offer, there is no binding agreement until the Settlement Agreement has been signed by both parties. We have dealt with situations where, for various reasons, an employer changes its mind about the offer it has made. One example was where an employee had been offered a generous redundancy package, but shortly afterwards the employer discovered evidence of misconduct that made it reconsider how generous it wanted to be. Withdrawal of an offer is of course something that needs to be handled carefully, so it is a good idea to take advice if this situation happens to you. This is one of the reasons why we recommend that the employer is the last party to sign a Settlement Agreement, so that you are in control of completion.

It is of course equally true that an employee is not bound by a Settlement Agreement until it is signed by both parties, even if they have previously indicated they are intending to accept. It is always worth thinking about what your approach will be if the employee decides not to sign.

– “If I say we’re having a ‘protected conversation’ the employee won’t be able to use it in a claim against me”
FALSE (mostly)

As you may be aware, the law changed in 2013 to allow employers to have certain discussions with employees which would not be admissible in an unfair dismissal claim. Although the term is fairly popular among employers, ‘protected conversation’ doesn’t have any legal meaning, so it doesn’t give any protection in itself. It is also not terminology an employee would necessarily understand. However, you might still benefit from the statutory protection if you went further and explained what you meant by a protected conversation (i.e that you wished to enter into negotiations regarding the potential termination of their employment). It would be helpful to also say that the conversation is ‘without prejudice and subject to contract’ and also to give the employee a copy of the offer in writing (sometimes with a draft of the Agreement) so that they can take it away and consider it.

The other point that it is important to make here is that the statutory protection only applies to basic unfair dismissal claims and would not prevent the employee from referring to the conversation if they were to bring other types of claim such as discrimination, breach of contract, or other types of unfair dismissal including whistleblowing. It also doesn’t apply if an employer behaves ‘improperly’ in making the offer.

 – “Up to £30,000 can be paid tax free”
 TRUE (Sometimes!)

It is true that there is the potential under current tax rules for up to £30,000 to be payable without deduction on termination of employment. However, this will only apply if the payment is not seen to be a taxable payment. If it amounts to notice pay and the employer has a payment in lieu of notice clause, then the money will be taxable even if it is below £30,000. Likewise, if it is a payment on retirement, or consideration for restrictive covenants, it may well be taxable. This is a complex area so it is always worth taking advice – all too often we come across situations where an employee has been given the expectation that a settlement payment will be tax-free when that is not the case, and it can make it difficult when that expectation has to be lowered.

– “Employers have to pay the employee’s legal costs”
FALSE (Strictly speaking!)

It is a statutory requirement of a valid Settlement Agreement for the employee to take independent legal advice. This has often led employers to believe that there is a requirement to pay for legal costs, but there is no such obligation in law. However, in practice it would be incredibly rare for an employer not to contribute to the employee’s legal costs.

There were two points we made about this at our recent workshops about legal costs. They both relate to setting the employee’s expectations. The first is not to say that you are prepared to pay the employee’s legal costs. Instead, you say that you are prepared to contribute to their legal costs -an important distinction. (It is also a good idea to make the contribution limit clear as well, and usually this will be approximately £300-£400 plus VAT). The second is that you should make clear that the contribution to legal costs will only be paid if they sign the Settlement Agreement.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected])

Please note that this update is not intended to be exhaustive or be a substitute for legal advice.  The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Taxation of termination payments – changes to come

In July we outlined the Government’s intention to enter into a period of consultation on proposals to simplify and make changes to the way payments made to employees on the termination of their employment are taxed. You can read that article here. That period of consultation has now ended, and perhaps not surprisingly, the proposals have not been viewed favourably by employers.

One of the main parts of the proposal was to do away with the distinction in tax treatment of contractual and non-contractual termination payments. In other words, the present position where the tax treatment of a payment in lieu of notice is determined by the inclusion or otherwise of a payment in lieu of notice clause in a person’s contract of employment would go. This must make sense, as in more cases than not it is simply a matter of luck whether the employee is entitled to receive a payment in lieu of notice tax free, or whether they have to pay tax on it.

The area which has caused most concern amongst employers is the removal of the £30,000 potential tax exemption and to replace it with a much reduced figure which would be based on length of service, and would only apply to redundancies and Tribunal awards. Employers often use some of the tax free allowance to effectively pay off employees rather than face Tribunal claims. From an employee’s perspective it is of course much more attractive to settle a potential dispute by receiving a payment, and if it can be paid without deduction a lower payment is going to be just as attractive as a higher payment which has to be taxed – in other words, it is the actual amount which the employee receives which is what matters.

Concern has also been expressed about tax free termination payments only being available in redundancy situations and where Tribunal awards are made. Redundancy is of course not the only type of no fault dismissal, with some business reorganisations not necessarily amounting to redundancy, plus of course ill health terminations would also not be eligible for tax free payments. Perhaps of more concern is the proposal that in other situations the employee would have to go to Tribunal and get an award in order to enjoy the tax free exemption, rather than be able to do a deal before going to Tribunal. This seems to fly in the face of the various changes to the law the Government has made to reduce Tribunal claims.

What does appear to be clear is that for many employees the amount of any tax free allowance will be significantly reduced from the current £30,000. It also seems that the proposed changes will not simplify the existing rules, but rather shift the complexity from examining the nature of a payment in lieu of notice to having to examine the reason for the termination.

We will have to wait and see what changes the Government makes as a result of the consultation and we will of course update you on these when they are available.

If you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

 

Different or consistent treatment – disciplinary sanctions

Our previous article on the Court of Appeal case of Newbound v Thames Water Utilities Limited highlighted the difficulties with applying different disciplinary sanctions to employees involved in the same incident.

As the Christmas party season approaches, we look at two recent cases involving the disparity in disciplinary sanctions given to employees involved in incidents at work events.

The recent Tribunal case of Westlake v ZSL London Zoo concerned an altercation between two zookeepers (being the current and former girlfriends of another zookeeper colleague – described in some parts of the media as a ‘zookeeper love triangle’!) at the Christmas party. It was a serious matter, with one of the women being injured by a wine glass in the face and needing stitches.

Ms Westlake was dismissed, whilst the other zookeeper received a final written warning and was banned from attending the zoo’s social events. Ms Westlake brought a claim on the basis that it was unfair that she had been dismissed when both of the women been equal participants in what happened, i.e. they should both have received a final written warning.

The Tribunal found that, on the facts of this case, the decision to dismiss was one that no reasonable employer would have made, and therefore the dismissal was unfair. The Tribunal also held that had the zoo dismissed both of the zookeepers involved in the fight, then the dismissal would have been fair. However, although the claim for unfair dismissal succeeded, her compensation was reduced to zero on the basis of contributory fault, i.e. the fact that it was her own behaviour that caused the dismissal.

The matter was also reported to the police and Ms Westlake was subsequently convicted of assault. She was required to pay compensation to the victim.

In contrast, in the recent case of MBNA v Jones the EAT considered the disparity in treatment of two employees who had both been found guilty of gross misconduct in relation to an incident which occurred at a work event. Mr Jones was dismissed, however the other employee received a final written warning. He argued that his dismissal was unfair because of inconsistent treatment.

The Tribunal had found Mr Jones’ dismissal was unfair, however MBNA successfully appealed to the Employment Appeal Tribunal. The EAT held that the circumstances of the employees involved had to be “truly parallel” for the disparity of treatment to be unreasonable. Here, there were sufficient differences in the employees’ situation as to explain the difference in treatment. In particular, Mr Jones was found to have started the altercation and had punched the other employee, and the other employee’s actions were in response to this provocation.

If in doubt as to whether a dismissal may fall within the band of reasonable responses, it is always worth taking advice to get an independent view on the appropriateness of the penalty in the circumstances. We are experienced at advising on disciplinary cases of all kinds and a quick call to us can save you becoming embroiled in a costly dispute.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Disability discrimination – 3 recent cases

It is unlawful for employers to discriminate (directly or indirectly) against workers, employees or job applicants who are disabled under the Equality Act 2010. The Equality Act also gives protection against discrimination ‘arising from’ disability as well as placing a duty on employers to make reasonable adjustments where a disabled worker or job applicant is placed at a substantial disadvantage.

In this article, we look at three recent cases which (although they are at Employment Tribunal level only and are therefore not binding law) provide useful examples of some of the issues that employers should be aware of in relation to discrimination arising from disability and the duty to make reasonable adjustments.

Powell v Secretary of State for Work and Pensions

Ms Powell was a long serving employee at the DWP. She had frequent time off work due to ill-health, and some of her absences were related to disability. Under the DWP’s absence management procedures, formal action would be instigated where an employee had 8 days of absences in a 12 month rolling period. The DWP did adjust the trigger point for Ms Powell, so that action would only be taken once she reached 12 days’ absence.

Her absences went over the 12 days (by a few days) and she was subsequently dismissed, despite the DWP’s procedure stating that the decision to dismiss a disabled person should not turn on whether they had gone a day or two over the trigger point.

Ms Powell brought claims for unfair dismissal and discrimination arising from disability. The Employment Tribunal held that Ms Powell was discriminated against and should have been given more time to improve her attendance. She also won her unfair dismissal claim, and was awarded over £30,000 in compensation.

In this case it certainly sounds as if the DWP were much too quick to dismiss a long-serving disabled employee. It is always important to consider a fair procedure as well as any potential reasonable adjustments. Also, reasonable adjustments are not just in the sense of working hours or special equipment, they can include making adjustments to internal procedures too.

Corry v Merseyrail Electric 2002 Ltd

Mr Corry suffered from epilepsy, which he stated on his CV, and he had applied for a job at a train station. Mr Corry was offered the job, but the offer was conditional on him passing a medical. The medical concluded that Mr Corry was fit to work – but he should not work alone, or be allowed to work trackside.

The HR department at Merseyrail did consider what potential adjustments could be made, however as 90% of the job involved working alone or trackside they concluded that it was not financially viable or practical for them to take on Mr Corry and the job offer was withdrawn.

Mr Corry brought a claim for discrimination arising from disability and failure to make reasonable adjustments, however both claims were dismissed. The Tribunal found that withdrawing the job offer was a proportionate means of achieving a legitimate aim (which in this case was ensuring the safety of employees and the public) and the suggested adjustments (which included employing a colleague to accompany Mr Corry) were not reasonable in the circumstances.

This case is a useful example of when the adjustments being sought by a disabled person go beyond what is reasonable.

Shields v Surrey and Sussex Police

Mr Shields was a police marksman who suffered from hearing loss following an inner ear infection. He underwent annual hearing tests and had successfully undertaken his role for 12 years. However, a new minimum hearing level was introduced. Mr Shields subsequently failed the new hearing test and was removed from firearms duties. The police force argued that it would be dangerous for him to be in the field, in case he mis-heard an instruction of “shoot” or “don’t shoot”, but Mr Shields said that this had never been an issue in previous years.

Mr Shields brought claims for discrimination arising from a disability, indirect discrimination and a failure to make reasonable adjustments (including a failure to allow him to take the hearing test used by the London Fire Service).

Mr Shields’ claims for discrimination arising from a disability and indirect discrimination failed, however the tribunal held that there had been a failure to make a reasonable adjustment, in that he should have been allowed the opportunity to take the hearing test used by the London Fire Service, which was the best available, and there were sufficient operational similarities between the police and the fire service.

As these cases show, it can sometimes be difficult to assess whether taking a particular course of action could amount to discrimination and, if in doubt, it is always best to take advice – we have years of experience of advising on ill-health and disability issues and would be happy to help.

We are experienced at advising on disability issues. If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Sleeping on the job and National Minimum Wage

Do employees who do ‘sleep in’ shifts as part of their role qualify to be paid at the National Minimum Wage rate throughout their shift? The Tribunals and courts have been struggling with this question in recent years, and as we have covered in our previous articles, the general direction of the case law was that although each case depends on its specific facts, if an employee is required to be present, they are likely to be entitled to the NMW.

This is a hot topic because it has such significant cost implications for employers who operate ‘sleep in’ shifts, such as in the care sector – costs which of course are only going to increase when the National Living Wage comes into effect in April 2016.

However, a recent case has brought the question of NMW for sleep ins into doubt once again. The case (Shannon v Rampersad & Another (t/a Clifton House Residential Home (2015)) involved Mr Shannon, who was a care worker at a residential care home for elderly people. He lived in a flat on site. He was required to be in his flat between 10pm and 7am and to be available to assist if needed, although a night care worker was the main person on duty. Having Mr Shannon present as well as the night care worker was a requirement in order for the home to meet its statutory care ratios.

In the case the Employment Appeal Tribunal found that Mr Shannon fell within an exception to the NMW because he was at his home during the hours in question. This meant that it was not necessary to consider whether other parts of the statutory test may have applied, and Mr Shannon’s claim was rejected.

The case is an interesting example of one which is very much out of step with the recent developments, and while it may at first glance give some comfort to employers as they grapple with this difficult issue, I would advise you to treat the decision with a degree of caution. For example, as I have covered in my previous article here, a key factor in earlier cases was whether the employee was required (such as by a statutory obligation, or in the case of a nightwatchman by dint of the nature of the role) to be present on the premises. Another significant factor pointing towards NMW is if the employee was contractually required to be on the premises or within a certain distance during their sleep in shift. Both of these factors were present in Mr Shannon’s case and it is not clear why the EAT chose to decide this case differently.

This leaves employers in an incredibly difficult position, because each case has to be considered on its own facts, making it impossible to reliably predict the approach the Tribunals are likely to take. It is not yet known whether Mr Shannon will submit an appeal, but we will keep you updated with any future developments in this tricky area.

We are experienced at advising a number of clients on sleep in issues in the care and education sectors (amongst others). If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Whistleblowing – public interest test comes (nearly) full circle?

Under whistleblowing legislation, workers who make a protected disclosure (also known as “blowing the whistle”) are protected from being subjected to a detriment by their employer on the grounds that they have blown the whistle and, if the worker is dismissed, then the dismissal will be automatically unfair if the reason (or principal reason) for it is that they have made a protected disclosure. For more information about what can constitute whistleblowing see Nicola’s article here.

As we have previously reported, changes to whistleblowing legislation in June 2013 introduced a new “public interest” test which meant that the worker making the disclosure must have a reasonable belief that it is in the public interest. The public interest requirement was introduced to close a loophole from the case of Parkins v Sodexho (2001) in which the Employment Appeal Tribunal (EAT) had held that whistleblowing protection covered someone who blows the whistle about a breach of their own contract of employment, even where the disclosure only concerns them personally and does not have any interest to the wider public.

Back in April, we reported on the EAT case of Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed (2015) in which it was confirmed that a relatively small group of 100 senior managers was a sufficient section of the public to satisfy the public interest test.

Now the position has developed yet further. Following a recent decision by the EAT in the case of Underwood v Wincanton plc (2015), workers may again be afforded protection under the whistleblowing provisions when making disclosures about breaches of their own employment contracts. In the Underwood case, a group of four lorry drivers had raised a complaint with their employer about the terms and conditions of their employment, in particular in relation to the allocation of overtime. One of the employees (Mr Underwood) was dismissed and he brought a claim on the grounds that his dismissal was automatically unfair because he had been dismissed for “blowing the whistle”.

The Employment Tribunal (ET), which heard the case three months before the EAT’s decision in Chesterton, struck out the claim on the basis that the dispute was not in the public interest.

The EAT, however, allowed Mr Underwood’s appeal and sent the case back to the ET to be heard. The EAT held that, following Chesterton, it was possible for a matter to be “in the public interest” even though it involved a dispute between a group of employees and their employer about terms and conditions of employment. It had been argued that this could not be the case – how could the interests of such a small group of workers amount to a ‘public interest’? However, although the EAT did not reach a conclusion as to whether the public interest test was met in Mr Underwood’s case, they did conclude that it was potentially possible for the test to be met where issues are raised by ‘a group of employees’ to their employer.

This begs the question of how small the group could be – could two employees raising a joint complaint be a ‘group’ and therefore qualify for the public interest test? And if two could qualify, why not one? If it were possible for an individual complainant to gain protection then we would be back full circle to Parkins v Sodexho!

Although the Chesterton case is being appealed to the Court of Appeal, it is not expected to be heard until October 2016, so until the outcome of that is known employees who raise disputes about the terms and conditions of their contracts may be afforded extra protection under whistleblowing legislation.

Whistleblowing issues are not always easy to identify and can require careful handling – it is always best to take advice if you are dealing with a potential whistleblowing issue, as a quick call to us could save a costly Tribunal claim later. If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Shared Parental Leave for grandparents

As we have previously reported, Shared Parental Leave became available for parents of babies born on or after 5 April 2015 (or where babies or children were placed for adoption on or after that date).

So far there is little official information regarding the number of people who have chosen to take Shared Parental Leave, although anecdotally the take up certainly seems to have been much lower than the Government had anticipated. It will of course take time for the new rights to become established, but as we explained at our workshop sessions on Shared Parental Leave earlier this year, one of the reasons for the low take up may be the complex eligibility and notification requirements, as well as the financial issues around taking Shared Parental Leave.

It was recently announced by George Osborne that the Government intends to extend Shared Parental leave to allow the leave to be shared with one nominated (working) grandparent, as well as between partners, by 2018. Presumably the grandparent would need to meet similar eligibility criteria to those currently applicable for partners.

Whilst the intention behind the Shared Parental Leave regulations was to encourage parents to share child care responsibilities, this latest announcement has caused some to raise concerns that dads in particular might be discouraged from taking time off, particularly given that George Osborne said in his announcement that over half of all new mothers rely on grandparents for childcare when they return to work. Single parents will potentially benefit as the new plans will enable them to share their leave where previously they could not.

There is of course an important distinction between the new proposals and the idea of ‘grandparent leave’ that has been previously talked about (and which we covered in our article here) – the new leave only gives grandparents a share of the 50 weeks’ leave available for sharing after a birth or adoption, and does not give any rights beyond that time. Working grandparents do of course still have the ability to make a flexible working request to enable them to help with caring for their grandchildren if they wish, and employers should deal with any such requests reasonably. We anticipate that flexible working requests will continue to be the main way that working grandparents deal with taking time off to be with their grandchildren, but it will be interesting to see how extending Shared Parental Leave to grandparents will work in practice. We will of course keep you informed of any future developments!

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

 

 

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