Evening Workshop – Hot Topics for 2017 – 2 February

**Please note that this event is now fully booked – if you are interested in coming we can add you to our reserve list in case another person drops out. Otherwise, we still have some spaces for our evening workshop on 16 February – please click here for more information.**

We are delighted to invite you to join us for our next series of workshops where we will be covering the hottest employment law topics for 2017. As usual, we will be using a round table format, giving you lots of opportunity for discussion and questions.

The sessions will involve our usual practical, down to earth take on topics including the following:

– Employment status and the ‘gig’ economy

– Gender pay reporting

– Preparing for Brexit

– The future of Employment Tribunals

– Cases to watch in 2017

If there are any other topics you are keen for us to cover, please do let us know!

Don’t miss this opportunity to learn from our friendly team, with the chance for discussion both during and after the presentation.

Location & Times

This seminar will be an evening event on Thursday 2 February with registration from 5.30pm, with refreshments available. The workshop will begin at 6.00pm and we would expect to finish at around 7.00pm.

The event will be held at in our seminar room at our offices, 1 Little London, Chichester, West Sussex PO19 1PH (please click here for a map).

Our office is very close to the Little London public car park, but it is within easy reach of the other city centre car parks too (the city parking map is available here).

How to Book

**Please note that this event is now fully booked – if you are interested in coming we can add you to our reserve list in case another person drops out. Otherwise, we still have some spaces for our evening workshop on 16 February – please click here for more information.**

In order to book your place, please complete the form at the right hand side of this page. There is no charge for this event. Places are available on a first come, first served basis and we will contact you to confirm your booking. As numbers are limited, we reserve the right to limit the number of attendees per organisation. Due to the popularity of our events please note that a place is only guaranteed once we have confirmed your booking by email.

We look forward to seeing you!

Breakfast Workshop – Hot Topics for 2017 – 26 January

We are delighted to invite you to join us for our next series of workshops where we will be covering the hottest employment law topics for 2017. As usual, we will be using a round table format, giving you lots of opportunity for discussion and questions.

The sessions will involve our usual practical, down to earth take on topics including the following:

– Employment status and the ‘gig’ economy

– Gender pay reporting

– Preparing for Brexit

– The future of Employment Tribunals

– Cases to watch in 2017

If there are any other topics you are keen for us to cover, please do let us know!

Don’t miss this opportunity to learn from our friendly team, with the chance for discussion both during and after the presentation.

Location & Times

This seminar will be a breakfast event on Thursday 26 January with registration from 8am with refreshments available. The workshop will begin at 8.30am and we would expect to finish at around 9.30am.

The event will be held at in our seminar room at our offices, 1 Little London, Chichester, West Sussex PO19 1PH (please click here for a map).

Our office is very close to the Little London public car park, but it is within easy reach of the other city centre car parks too (the city parking map is available here).

How to Book

In order to book your place, please complete the form at the right hand side of this page. There is no charge for this event. Places are available on a first come, first served basis and we will contact you to confirm your booking. As numbers are limited, we reserve the right to limit the number of attendees per organisation. Due to the popularity of our events please note that a place is only guaranteed once we have confirmed your booking by email.

We look forward to seeing you!

Breakfast Workshop – Hot Topics for 2017 – 19 January

We are delighted to invite you to join us for our next series of workshops where we will be covering the hottest employment law topics for 2017. As usual, we will be using a round table format, giving you lots of opportunity for discussion and questions.

The sessions will involve our usual practical, down to earth take on topics including the following:

– Employment status and the ‘gig’ economy

– Gender pay reporting

– Preparing for Brexit

– The future of Employment Tribunals

– Cases to watch in 2017

If there are any other topics you are keen for us to cover, please do let us know!

Don’t miss this opportunity to learn from our friendly team, with the chance for discussion both during and after the presentation.

Location & Times

This seminar will be a breakfast event on Thursday 19 January with registration from 8am with refreshments available. The workshop will begin at 8.30am and we would expect to finish at around 9.30am.

The event will be held at in our seminar room at our offices, 1 Little London, Chichester, West Sussex PO19 1PH (please click here for a map).

Our office is very close to the Little London public car park, but it is within easy reach of the other city centre car parks too (the city parking map is available here).

How to Book

In order to book your place, please complete the form at the right hand side of this page. There is no charge for this event. Places are available on a first come, first served basis and we will contact you to confirm your booking. As numbers are limited, we reserve the right to limit the number of attendees per organisation. Due to the popularity of our events please note that a place is only guaranteed once we have confirmed your booking by email.

We look forward to seeing you!

Christmas time, fisticuffs and wine

There are always lots of employment law articles and blogs around this time of year all about the rights and wrongs of the office Christmas party, usually warning employers of the risk that they could be found vicariously liable for the actions of their employees should things get out of hand. In the recent case of Bellman v Northampton Recruitment, however, the High Court held that a company was not liable for an assault by its managing director on an employee at an after-party following the company Christmas do.

Back in March, we looked at two Supreme Court cases covering situations where an employer can be held responsible for the actions of an employee. In Mohamud v WM Morrison Supermarkets, the Supreme Court held that an employee’s assault on a customer at a Morrison’s petrol station was so closely connected with his employment that it would be just to hold Morrison liable for the customer’s injuries.

In the Bellman case, however, the High Court noted that the boundaries of vicarious liability are difficult to identify, despite the decision in the Morrison case.

Mr Bellman worked as a sales manager for a recruitment agency where Mr Major was the managing director. One year, the Christmas party for staff and their partners took place at a golf club. The party was described in the judgment as “an ordinary or usual work Christmas party of the type no doubted dreaded by some and an annual highlight for others”. After the party, just over half of the guests went on to the Hilton Hotel (where some of the guests were staying).

Some of the guests gathered in the hotel lobby, drinking alcohol and discussing social topics. Discussions moved on to company business, and then to a new employee who had started with the company about a month or so before the Christmas party, and who was rumoured to be earning significantly more than anyone else in the company. During the discussion, Mr Bellman challenged Mr Major, in a non-aggressive way, about the new employee but Mr Major lost his temper and assaulted Mr Bellman, punching him twice. Mr Bellman fell to the floor following the second punch, hit his head, and suffered brain damage as result of his injuries.

In finding that the company was not vicariously liable for Mr Bellman’s injuries, the court noted that:

  • The assault was committed after and not during an organised work social event. The after-party at the hotel was a spontaneous event, and not a ‘seamless extension’ of the Christmas party.
  • The assault was so far removed from employment that the company could not be held vicariously liable, though the company footed the bill including the taxis and drinks.
  • It was not right for Mr Major to always be considered to be on duty, just because he was in the company of other employees regardless of the circumstances.
  • Just because the discussion was about work related issues did not of itself change a conversation between fellow workers into something ‘in the course of employment’, regardless of the surrounding circumstances.

The decision is a surprising one, in light of the Supreme Court judgment in Mohamud v WM Morrison Supermarkets, and perhaps even more surprising given that the assault was carried out by the managing director. Mr Bellman suffered serious injuries, the result of which is that he is unlikely to work again, and, with Mr Major not being a party to the claim on the basis that he would lack the means to satisfy any judgment against him, it leaves Mr Bellman with no recourse to any compensation. The High Court noted, however, that if it were the case that a discussion between employees about work was enough for liability to arise, “it would mean that a company’s potential liability would become so wide as to be potentially uninsurable”.

This case does not mean that employers can never be vicariously liable for incidents occurring after an organised work social event, as the case was very fact specific. The High Court’s decision may yet be appealed on behalf of Mr Bellman. Had the assault taken place at the golf club, or had it been found that the expectation or obligation on any employee to participate had not ended, the employer may have found themselves held liable.

At this time of year it is worth remembering that employers can also be held vicariously liable for acts of discrimination by employees committed in the course of their employment. As we have mentioned previously, there is a statutory defence available in discrimination cases, if the employer can show that it had taken all reasonable steps to prevent the discrimination. It would therefore be prudent to make sure that Equal Opportunities policies are in place and up to date, and that employees are aware of them and receive training in equal opportunities.

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.

 

Gender pay reporting – Regulations finally published

Finally, after several delays, the Government have published the revised version of the draft Regulations, with the aim of bringing the gender pay reporting requirements into force from 6 April 2017.

The revised Regulations were published on 6 December 2016, and contain some important revisions which have been made as a result of the consultation process. These answer some of the questions that employers had about how the Regulations are intended to work in practice.

Snapshot date

The fact that the Regulations are due to take effect from 6 April 2017 means that the first obligation for employers to publish gender pay gap information will be on 4 April 2018. This is because the ‘snapshot date’, i.e. the date on which the employee numbers are assessed, is set by the revised Regulations as 5 April each year. It will only be those employers which have 250 or more employees on that date which will be required to publish their gender pay gap information, and the information from that ‘snapshot date’ will need to be published within 12 months, i.e. by 4 April 2018.

Not just employees

Although the terminology used in the Regulations is ‘employer’ and ‘employees’, the definition does actually include workers as well. However, in response to the consultation the Government received feedback from employers that it would not be reasonable to expect them to include pay information from workers where they are not on the employer’s payroll systems. An exception has therefore been made so that the reporting duty does not apply in relation to workers where the employer does not have, and it is not reasonably practicable for the employer to obtain, the relevant data.

Staff on leave excluded from calculations

In consultation, employers had also given feedback that employees absent on family-friendly leave should be excluded from the calculation (so that, for example, if an employer had a large number of staff on maternity leave (and therefore potentially maternity pay) at the ‘snapshot date’, it would not unfairly skew the figures). As a result of these concerns, the Regulations have been amended so that employers are now required to base their calculations only on ‘full-pay relevant employees’. These are employees who are not, during the relevant pay period, being paid at a reduced rate or nil as a result of being on leave, and ‘leave’ is stated to include annual leave, maternity, paternity, adoption or shared parental leave, sick leave and special leave. Staff who are absent do however still count towards the 250 threshold.

Staff with variable hours

Questions were asked in the consultation as to how employers should deal with zero hours or casual workers, as the calculation method set out in the previous Regulations involved weekly pay divided by weekly hours, which clearly would be difficult in relation to those employees who do not have regular working hours each week. Instead, the new Regulations require calculation to use normal working hours where applicable, or where there are no normal working hours a 12 week reference period will apply.

Other points

The Regulations clarify how the quartiles should work in relation to publishing the gender pay gap information. In order to work out the quartiles, employers should list employees in order of their pay, from lowest to highest, then divide the employees into four equal groups. The proportion of male or female employees in each quartile should be calculated by dividing the number of male or female employees in the quartile by the total number of employees in the quartile, and multiplying by 100.

In terms of bonus information, only the part of any bonus payment that is proportionate to the relevant pay period should be included in the calculation of an employee’s gross hourly pay for the purposes of determining the employer’s mean and median gender pay gap.

Some large corporate employers had suggested in consultation feedback that it should be possible for their statistics to be published on a group basis, rather than each individual company. However, this request was rejected and the requirement remains for each individual entity to publish its own gender pay information.

Enforcement

As we reported previously, one of the criticisms of the previous draft Regulations was the lack of an enforcement mechanism. The Explanatory Notes to the amended draft Regulations indicate that failure to comply with the Regulations will constitute an ‘unlawful act’ within the meaning of S.34 of the Equality Act 2006, which gives the Equality and Human Rights Commission (EHRC) the power to take enforcement action. Although the Regulations themselves have not specifically been amended on this point, the Government seems to have made its intention clear. It is not known at this stage what approach the EHRC will take to enforcement. We suspect that, as we have covered previously, the Government will be hoping that pressure on reputation will be one of the main incentives for employers to comply.

For employers whose gender pay information does show a significant gender pay gap, we recommend that they consider publishing an optional narrative explaining the factors which may lay behind the gender pay gap and what steps are being taken to deal with it. We are happy to advise on any narratives before they are published – do get in touch if we can be of assistance.

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.

Holiday entitlement for those who work 6 days a week

It is perhaps ironic that taking holidays from work, which sounds like a very simple concept, has led to so much legislation and so many cases on how to calculate it. The basic legislative position is simple – a full time employee is entitled to a minimum of 28 days’ paid holiday per year, with this figure including the 8 bank holidays. There have however been numerous and on-going disputes about a lot of the detail in calculating this – for example what is a day’s pay, how do you calculate pay for people who work irregular hours, what happens when people are off work due to sickness, or for family friendly reasons etc? The list goes on.

But what happens to the worker who works 6 days a week? If the “full time” person working 5 days a week is entitled to 28 days’ holiday, should they not get an extra 20%, i.e. 33.6 days’ holiday? After all, a person who works half time, i.e. 2 ½ days a week, would only get 50% of the holiday enjoyed by the 5 days a week worker, so it would seem equitable that those who worked more days should get more holiday. Sounds too good to be true? Well, it is!

The statutory basis for the minimum holiday entitlement in the UK is the Working Time Regulations 1998. That provides that the maximum statutory (as opposed to contractual) holiday entitlement is 28 days a year, so even if someone worked 7 days a week, they would still only get 28 days’ paid holiday (although of course there is nothing to stop employers providing more). There may be other issues regarding excessive working time, but so far as paid holiday is concerned, they would have to make do with 28 days.

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.

Can a temporary condition amount to a disability?

When does an illness or injury become a disability affording an individual protection under disability discrimination legislation? This is a question that both the UK Courts and the European Courts have grappled with over the years. The European Court of Justice recently considered this question in the Spanish case of Daouidi v Bootes Plus SL and ors.

Mr Daouidi worked as a kitchen assistant in a hotel restaurant in Barcelona. In October 2014, Mr Daouidi slipped on the kitchen floor while at work and dislocated his elbow. After two weeks off work, Mr Daouidi’s employers contacted him asking about when he would be able to return to work. Mr Daouidi said that he could not return immediately as his injury was continuing to cause him pain. In late November, Mr Daouidi received notice that he had been dismissed, allegedly on grounds of his poor performance. He raised claims for unfair dismissal and disability discrimination.

When Mr Daouidi’s claim was heard six months’ later in the Spanish courts, his arm was still in plaster and the medical prognosis about his recovery was uncertain. The court accepted that there was sufficient evidence to support Mr Daouidi’s case that the real reason for his dismissal was his temporary incapacity for work. The court then made a reference to the European Court of Justice (ECJ), asking whether Mr Daouidi could be considered as disabled for the purposes of the EU Equal Treatment Framework Directive given that the duration of his incapacity was uncertain.

The ECJ held that a dismissal because of temporary incapacity following a workplace accident could be considered as directly discriminatory on the ground of disability, provided that the worker’s incapacity is ‘long-term’. The ECJ said that whether or not the incapacity is sufficiently long-term for the definition of disability to be met is a question of fact for the national courts to determine based on an objective assessment of all of the evidence available (including medical assessments).

The difficulty experienced in this case was that the medical prognosis was uncertain, so the medical professionals assessing Mr Daouidi could not give any indication as to when he may be fully recovered and able to return to work. The ECJ did not give any helpful guidance about this particularly difficult situation, leaving it to the Spanish courts to make that determination.

If such a case were to be heard in the UK, the courts would look to the Equality Act 2010, which says that the effect of an impairment is ‘long-term’ if it has lasted, or is likely to last, for at least 12 months. Mr Daouidi had only been incapacitated for six months at the time his claim was heard, so possibly he would not have met the definition of disability within the Equality Act 2010, unless the Employment Tribunal decided (based on any evidence put before them) that his incapacity for work was likely to last for a further 6 months or longer.

So, the important message here is that an injury experienced by a worker or employee (whether it occurred outside of work or at work) may not come within the definition of a disability afforded protection under the Equality Act 2010 if the individual recovers, or is likely to recover, within a short period of time. If you are faced with a situation where the question of whether an individual has a disability or not arises, seeking advice from medical professionals about the timeframe for recovery is going to be absolutely key to making this assessment. If the medical prognosis is uncertain about recovery, then it may be prudent to err on the side of caution and treat the individual as having a disability within the definition set out in the Equality Act 2010.

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.

Increased rates of Maternity Pay, Sick Pay and other payments

The Government has announced increased rates for various statutory payments which are to come into force in April 2017. The main changes are as follows:

Statutory Maternity Pay: £140.98 per week (currently £139.58)

Statutory Paternity Pay: £140.98 per week (currently £139.58)

Shared Parental Pay: £140.98 per week (currently £139.58)

Statutory Adoption Pay: £140.98 per week (currently £139.58)

Statutory Sick Pay: £89.35 per week (currently £88.45)

There are varying reports as to exactly when the changes will take effect, however it is likely to be early April 2017. We will of course keep you up to date.

 
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.

Can a dismissal be fair if final written warning is “manifestly inappropriate”?

Employers are often faced with making difficult decisions, particularly when taking disciplinary action against long serving employees who have a previously clean record. The recent case of Bandara v British Broadcasting Corporation (2016) provides a good example of some of the pitfalls to watch out for.

Mr Bandara was employed by the BBC as a Senior Producer, and had nearly 18 years’ service with an unblemished disciplinary record, until two incidents in 2013. The first incident, in March 2013, involved Mr Bandara shouting at a manager – he apologised and no further action was taken. Then, in July 2013, Mr Bandara made a decision not to prioritise the story of the birth of Prince George (he did go on to publish the story that day, but after some delay).

The BBC then sought to discipline Mr Bandara over both incidents. Mr Bandara was found guilty of gross misconduct and received a final written warning, to remain live for 12 months.

The BBC then carried out further investigations into Mr Bandara’s behaviour, leading to a disciplinary hearing in May 2014. Mr Bandara was subsequently dismissed for gross misconduct.

Mr Bandara brought claims of discrimination and unfair dismissal against the BBC. Whilst both claims were dismissed by the Employment Tribunal (ET), the ET held that the circumstances which led to Mr Bandara being given the final written warning amounted to misconduct, but not gross misconduct. The ET found that the final written warning which the BBC took into account when dismissing Mr Bandara, was “manifestly inappropriate”, and said that his previous good record should have been treated as a point his favour. The ET also concluded that the March 2013 incident “was not something which months later could fairly have been resurrected as a substantial part of a final written warning”.

Nevertheless, the ET held that the decision to dismiss Mr Bandara was one which a reasonable employer could reach in all the circumstances, and was therefore a fair dismissal. The ET’s reasoning was that if Mr Bandara had been given only a written warning the first time round, rather than a final written warning, it would still have been live and still “something properly to be taken into account” in the later decision to dismiss him. The ET found that if it was a written warning rather than a final written warning, it “would not have rendered the decision to dismiss improper or unreasonable or excessive and beyond the range [of sanctions which a reasonable employer could impose]”.

Mr Bandara appealed to the Employment Appeal Tribunal (EAT), arguing that his dismissal was unfair. The BBC cross-appealed, arguing that the final written warning was not “manifestly inappropriate”.

The EAT held that the ET was right to find that the final written warning issued to Mr Bandara was “manifestly inappropriate”, but that the ET had erred in its approach by asking itself whether the dismissal would have been fair had the BBC issued Mr Bandara with a written warning rather than a final written warning. The EAT criticised the ET for not focussing on the actual reasoning of the BBC, and whether, applying the objective standard of the reasonable employer, the BBC acted reasonably in dismissing Mr Bandara. The case was remitted back to the ET to consider this point.

This case serves as a warning to employers, to make sure that decisions to impose disciplinary sanctions are justifiable. The EAT noted that there are circumstances, albeit exceptional ones, where the ET should reopen an employer’s earlier decisions, and it held that the ET was entitled in Mr Bandara’s case to conclude that the final written warning was manifestly inappropriate. It was also noted in this case that Mr Bandara’s actions which led to the final written warning did not amount to gross misconduct under the BBC’s own disciplinary procedure.

So, in answer to the question “can dismissal be fair if the final written warning is manifestly inappropriate?”, well yes, potentially, but it would depend on whether the final written warning was relied upon by the employer when making the decision to dismiss, and whether the employer attached significant weight to that warning.

 

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.

Purely delighted!

We’re very excited to tell you that yet again we have had a fantastic review in the legal directory Chambers & Partners, and both Peter and Nicola have continued their long run as ‘Notable Practitioners’.

Chambers and Partners rankings matter in the legal world because they are independent and cannot be bought – they are based on extensive independent research, including interviews with clients and other lawyers.

We were particularly pleased to receive feedback that our advice is straightforward and easy to understand, as this is one of the areas that we pride ourselves on most.

We would like to take this opportunity to say thank you again to those of our clients and contacts who acted as our referees as part of the Chambers research process. We are always grateful for your support and will continue to work hard to give you our best advice and service.

Here’s the details of what the directory has to say about us:

Pure Employment Law

What the team is known for Assists businesses with the full range of employment law matters, including senior departures, TUPE and disciplinary matters. Also skilled in representing both employees and employers in Employment Tribunal proceedings.

Strengths

“They are very straightforward and very realistic in their advice, with a deep understanding of the issues from a corporate, individual and legal position. They have an awesome ability to explain the arguments in a way that we can immediately understand.”

“They are able to provide all the strategic support we need without paying London rates. Exceptional value for money.”

Notable practitioners

Peter Stevens garners praise for his commerciality and practical advice, with clients saying: “He is always pragmatic with deep experience and knowledge of all aspects of employment law.” 

Nicola Brown regularly advises both employees and employers in connection with discrimination claims. Clients appreciate her “very knowledgeable and prompt advice.”

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]).

 

 

LEGAL INFORMATION

Pure Employment Law | 1 Little London, Chichester, West Sussex, PO19 1PH
[email protected] | Tel: 01243 836840

Pure Employment Law is the trading name of Pure Employment Law Limited, registered in England and Wales with company number 07134294 and whose registered office is 1 Little London, Chichester, West Sussex, PO19 1PH. Pure Employment Law Limited is authorised and regulated by the Solicitors Regulation Authority with registration number 533794. A list of the company’s directors is available for inspection at the registered office

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