Failure to respond to Subject Access Request proves costly

Under the provisions of the Data Protection Act 1998, an employee has the right to make a Subject Access Request to their employer for copies of data held by the employer regarding them. There are complex rules under the Act as to the data which has to be disclosed, as well as the time frames and conditions which an employer can impose, and employers who receive a Subject Access Request should really seek advice on their obligations.

A Subject Access Request is something which employees or former employees often make when there is a dispute. That is what happened in the recent case of McWilliams v Citibank NA (2016). Ms McWilliams was a foreign exchange trader at Citibank who was suspended from work pending a disciplinary hearing. The reason for the suspension was that she was suspected of disclosing confidential client information to traders from other banks via an online chat room. Prior to the disciplinary hearing, Ms McWilliams made a Subject Access Request for all data held by Citibank relating to her. She named 25 individuals whose communications she included within the scope of her request, and several of those people were within her direct management line. Citibank refused to respond to the request on the grounds that it was disproportionate, and Ms McWilliams therefore narrowed down her request to data including 38 search terms which were relevant to the allegations which she faced. Citibank still refused to respond, and as a result Ms McWilliams complained to the Information Commissioner. Citibank then provided some, but by no means all, of the data requested.

Citibank then called the disciplinary hearing, and amongst other things Ms McWilliams claimed that she had been unable to properly prepare because she did not have any access to Citibank’s systems, and Citibank had failed to properly respond to her Subject Access Request. Following the disciplinary hearing, Citibank carried out limited additional investigation before dismissing Ms McWilliams for gross misconduct. She then instigated claims of unfair and wrongful dismissal.

The case was heard by the Employment Tribunal, who found in Ms McWilliams’ favour. They found that Citibank had not properly investigated her defence, which was in essence that her managers knew what she was doing, and indeed they were behaving in a similar manner. In addition, the Tribunal found that Citibank’s refusal to respond properly to Ms McWilliams’ Subject Access Request meant that she in effect had to rely on them to carry out a proper investigation. As such, the Tribunal held that their behaviour materially affected Ms McWilliams’ ability to fully respond to the allegations against her. However, the Tribunal also held that Ms McWilliams’ conduct contributed to her dismissal, and that any compensation should be reduced to take account of this. The percentage of reduction has yet to be reported, but it could in theory be 100%.

This case is, as is so often the case in the Employment Tribunal, very fact specific. However, it does show that a failure to respond to a Subject Access Request can be a factor for a Tribunal in determining the fairness or otherwise of a dismissal. Employers receiving Subject Access Requests often consider them to be a fishing expedition from a disgruntled employee or ex-employee hoping that their files will give them some evidence against their employer, but this case is a reminder that, however burdensome they may be, failing to respond is probably not a sensible option.

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.

Taxi for Uber! Employment Tribunal decides Uber drivers are workers

One of the perennial issues that crops up in employment law is about employment status, i.e. is the individual an employee, worker or self-employed contractor? The answer will determine what rights an individual has. The issue has generated a lot of case law over the years. As we see the rise of the ‘gig economy’, this is not going to go away, as was recently demonstrated in the widely reported decision of the Employment Tribunal in the case involving Uber drivers (Aslam and others v Uber BV and others (2015)).

Before looking at the case, here is a quick reminder of what is meant by the terms ‘employee’, ‘worker’ and ‘self-employed’:

  • Under the Employment Rights Act 1996 (ERA 1996), an employee is defined as “an individual who has entered into or works under a contract of employment”. An employee has extensive rights under employment law.
  • A worker is defined under ERA 1996 as an individual who has entered into or works under:
    • A contract of employment; or
    • Any other contract, whether express or implied and whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.

Workers have less extensive rights than employees (we’ve heard the rights available described as the “half-promised land”), but do have some rights such as the right to be paid National Minimum Wage, the right to paid annual leave, rights to rest breaks and protection under discrimination legislation.

  • A self-employed contractor is someone who genuinely works for themselves. Generally, the individual will: not be supervised or directed in the work they do, have no obligation to provide or accept work, and pay their own tax and national insurance.

Most of you will be aware of Uber and what they do. However, for those that are not – Uber provides a smartphone app so that individuals can order a taxi and pay the fare. Uber engage drivers who have to supply their own car and cover running costs. A driver can choose when to work by logging on to the app, which signals they are on-duty and available for hire. The app will partner up a customer and available driver in the area, and if the driver accepts the job, then the service is provided. Uber take a cut of the fare, and the rest is paid to the driver. Uber has treated the drivers as self-employed individuals, and the contractual documentation they put in place reflected that.

A number of Uber drivers brought claims for unlawful deduction from wages, and failure to provide paid leave. They argued that they were ‘workers’ under the ERA 1996, National Minimum Wage Act 1998, and Working Time Regulations 1998. This would mean that they would obtain the right not to be paid less than the National Minimum Wage, be subject to rules around working time, and be able to take paid holiday.

The Employment Tribunal agreed with the drivers that they are workers. They entirely rejected Uber’s argument that they simply provide a technology platform which puts drivers in touch with passengers and that it is not a provider of taxi services. In particular, the Employment Tribunal found that the contractual documentation in place did not reflect the reality of the relationship Uber has with the drivers, particularly as a driver cannot bargain with the passenger. The Employment Tribunal also said that it is an essential feature of Uber’s business to maintain a pool of drivers who it can call on as and when a demand for driving services arises, so it was “unreal” to say otherwise.

The case demonstrates once again that an Employment Tribunal will not be scared to look beyond the contractual documentation in place to make a decision about employment status. Contracts can certainly help, but if they do not reflect what actually takes place in practice then issues can arise. Employment status can involve some complex considerations, and also have quite far-reaching implications both in terms of an individual’s rights, and payments to HMRC for income tax and national insurance contributions.

As this is a decision at Employment Tribunal level only, Uber may appeal to the Employment Appeal Tribunal. If they do, we will 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.

 

Discriminatory or not? – rejecting an “overqualified” job applicant & requiring a new mother to work full-time

Two recent Employment Tribunal cases, described below, concerned claims for direct age discrimination and indirect sex discrimination. The cases demonstrate that an Employment Tribunal will seek to explore the reasons why a decision has been made by the employer, and allow claims to be successfully defended where those reasons can be established as non-discriminatory.

As you will be aware, there are different types of discrimination set out in the Equality Act 2010: ‘direct’ and ‘indirect’ discrimination, victimisation and harassment. The definitions of direct and indirect discrimination are set out below:

  • Direct discrimination occurs where “because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
  • Indirect discrimination is concerned with acts, decisions, practices, or policies which are not intended to treat anyone less favourably, but which in practice have the effect of disadvantaging a group of people with a particular protected characteristic.

(The protected characteristics in the Equality Act 2010 are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation).

Direct age discrimination

In the Employment Tribunal case of Jones v Care UK Clinical Services Limited [2015], it was decided that a job applicant who was rejected for being overqualified had not been subjected to direct age discrimination.

Mr Jones had applied for the post of marketing services executive. After interview, he was not selected for the job. This was given to another candidate who scored better at interview. The candidate selected was 29 years old and Mr Jones was 51. The interview notes disclosed to the Employment Tribunal showed that Mr Jones had been considered as overqualified for the role, and that his expectations of development in the role could not be met by the business.

Mr Jones raised a claim that he was treated less favourably because of his age, as compared to the candidate selected who was much younger. The Employment Tribunal disagreed, and were satisfied that the business had shown that the reasons he had been rejected was because he was overqualified for the post.

Mr Jones did not, however, bring a claim for indirect age discrimination and the reasons for this are not clear. He may have succeeded if he had brought such a claim, and if his employer had been unable to objectively justify their actions (click here for our previous article discussing when discrimination can potentially be justified).

Indirect sex discrimination

In the Employment Tribunal case of Smith v Gleacher Shacklock LLP [2015], it was decided that an investment firm’s requirement that a new mother work full-time was not discriminatory in nature as the needs of the business outweighed the minor disadvantage that the employee suffered by having to work full-time.

Ms Smith was an executive secretary at the investment firm. Most of her role was described as ‘predictable’, but there was an element that was ‘unpredictable’ where she would be required to assist with fast-moving deals. Ms Jones made a flexible working request when she returned after maternity leave. She wished to work a 4-day week, with one of those days working from home. This was so she could care for her child on Friday, and make childcare arrangements for the other days of the week. Her request was rejected because the firm said that it was vital that clients have a single point of contact, that the unpredictable elements of her role made it difficult to accommodate her request, and that it would put pressure on other members of the team who would have to cover her role on days she was not in the office. The firm did make a concession and allowed her to leave early on some days to be able to collect her child from nursery.

Ms Jones appealed the decision, and this resulted in her changing her request to a 3-day week, with a job share covering the other 2 days. This was also rejected as the firm said handing work back and forth would not be conducive to the needs of the business.

Ms Jones raised a claim for breaches of flexible working legislation and for indirect sex discrimination. Both her claims were rejected, and in particular the Employment Tribunal rejected her claim for indirect sex discrimination on the basis that Ms Smith had not suffered a particular disadvantage (evidence showed she was better off financially working full-time and using childcare services), and that the firm’s position was justified as the disruption caused to the firm by agreeing to her request would have outweighed the disadvantage to Ms Smith.

Conclusion

Both cases shown that the employer had kept good records of why reasons were made, and this undoubtedly assisted them in defending these claims. In particular, the indirect sex discrimination case goes against the grain of other decisions involving claims about flexible working requests from new mothers, so it shows that the evidence from the employers must have been very persuasive. Employers who are diligent about keeping good records about such employment decisions will be pleased by the outcomes of these cases. For those employers who have concerns about whether their records are adequate, there is no time like the present to review your practices and improve. It could save you money and time!

The compensation that can be awarded in successful discrimination claims is unlimited, so it is important for employers to be aware of this area of employment law, and take action to ensure that equal opportunities policies are in place and that staff are adequately trained.

Do note that both cases were at Employment Tribunal level only, and are therefore not binding on other Employment Tribunals. Most cases are quite dependent on their individual facts.

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.

Q&A: Supporting employees who are also carers

Question: We have an employee who has been with us for 5 years. However, for the past 6 months’ her performance at work has been declining. When we informally asked her about this, she explained that she is struggling to get enough sleep because her elderly mother, who lives with her, is unwell and she has to care for her. Aside from the recent performance issues, the employee is exceptional and we do not want to lose her. What can we do to help?

Answer: These types of scenarios are cropping up more and more. Research by the Carers Trust has shown that one worker in eight is a carer, and this is set to increase in the future.

From the information you have given above, it seems you may be willing to consider a flexible working request from this employee. Employees with more than 26 weeks’ service are able to lodge a flexible working request, provided they have not made such a request in the previous 12 months. This is something that you could make the employee aware of, and many employers have flexible working policies which set out the process for making and dealing with any such requests. If you have such a policy, you could direct her to that. If her initial request cannot be accommodated for business reasons, then you could discuss alternatives with her and try and come up with a compromise. You can see out previous article on flexible working requests here.

The employee in question may find that reducing her hours allows her to manage her caring responsibilities and work much better. Obviously her income would drop and this would need to be made clear to her, but she may find that the drop in income allows her to claim a state benefit, and you could direct her to a benefits advisor or organisation who can assist and advise her about claiming relevant benefits.

If an emergency arises related to her mother (or another dependent), the employee has a right to take a reasonable period of unpaid time off to deal with that, and again this is something you may wish to make the employee aware of. Such time off will usually be for no more than one or two days to enable the employee to deal with the emergency and make any further arrangements for care. You may have a policy about taking time off for dependents, and you could direct the employee to that policy for further information.

The employee may find that she is not able to manage both work and caring for her mother, so she may decide to leave her job. The employee would need to provide her contractual notice, or you could agree for her to leave earlier than the end of her notice period if she requested this and you agreed to it. In those circumstances, perhaps you could say that you would be happy to re-employ the employee if she finds herself available to work again. However, the warning here is that you should not create any expectation, or give the impression that this is an absolute promise unless you are prepared for it to be binding. It would be prudent to make it clear that her re-employment would depend on the business situation at the time.

There is nothing to prevent you from going beyond what the legal requirements are, such as offering for paid time off to deal with an emergency rather than unpaid time off, but you should bear in mind that if you do this you can set a precedent and other employees may seek the same treatment. If you fail to provide the same treatment without justification, other employees could claim this is for a discriminatory reason (i.e. similar treatment was refused because of their gender, race, etc), and raise a claim in the Employment Tribunal.

If you manage to sort out flexible working with the employee, but her performance continues to decline despite having agreed to reduced hours, then you may need to commence a performance/capability management process to address this. I would recommend that you seek further advice at the time if you found that was the case.

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.

 

Are some parents more equal than others?

In a recent Employment Tribunal case in Scotland, a father was awarded over £28,000 compensation after his employer’s Family Friendly Policy was held to be discriminatory.

Mr Snell and his wife both worked for Network Rail and opted to take shared parental leave to care for their baby. The couple decided that Mr Snell’s wife would take 27 weeks leave, and Mr Snell would take 12 weeks’ leave (he later applied to extend his period of leave up to 24 weeks). Under their employer’s policy, Mr Snell’s wife would be paid full pay for 6 months, whereas he, as her partner, would only receive statutory shared parental pay of £139.58 per week.

Mr Snell raised a grievance arguing that he was being discriminated against on the basis of his sex because mothers received enhanced parental pay whilst fathers only received the statutory rate. Network Rail rejected the grievance. They argued that their policy applied equally to a mother’s partner regardless of whether they were male or female, and they believed that by paying the statutory amount they had met their legal obligations.

Mr Snell brought claims for direct and indirect discrimination in the Employment Tribunal. Network Rail argued that the correct comparator for Mr Snell was a female partner of a mother, who would also receive the statutory rate of pay under their policy. They also argued that even if their policy did put Mr Snell at a particular disadvantage because of his sex, it could be objectively justified as a way of helping them recruit and keep more female staff in a male dominated workforce.

By the time the case came before the Tribunal, Network Rail conceded that their policy had indirectly discriminated against Mr Snell in relation to his sex, so the Tribunal only had to determine how much compensation he should be awarded (Mr Snell had withdrawn his claim for direct discrimination).

Mr Snell’s total compensation of £28,321.03 included elements for: injury to feelings, future loss, interest, pension loss and his Tribunal fees. Some elements of the compensation were increased by 20% in light of Network Rail’s failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures i.e. failing to arrange meetings or to communicate the outcome of meetings to Mr Snell without unreasonable delay.

The Tribunal also took into account, when assessing how much Mr Snell should be awarded for injury to feelings, the delays on the part of Network Rail in dealing with his grievance and the fact that his not being able to finalise child care arrangements put him under considerable stress at a time when his wife was ill and in hospital.

There are lessons that can be learnt from how Mr Snell’s grievance was handled. Mr Snell’s manager had no previous experience of Network Rail’s grievance procedure, and had received no training on the Family Friendly Policy or on discrimination and diversity issues. There were also delays arising from communication with Network Rail’s external HR support, including about who should hear the grievance.

Many employers have traditionally paid mothers enhanced maternity pay, whilst paying paternity pay at the statutory rate and continue to pay maternity pay at a higher rate than shared parental pay. Whilst the Tribunal’s decision in Mr Snell’s case is not a binding one, it highlights some of the issues that can arise when shared parental pay is paid to mothers at a different rate to their partners (see our previous article here for a discussion on some of the issues around parental pay). The case also highlights some of the potential pitfalls for employers to be aware of when applying their family friendly policies and when dealing with any related grievances.

The Tribunal was informed that Network Rail has since changed its policy to ensure fairness, by “levelling down” the mother’s entitlement to the statutory rate of pay, although this was probably not the approach the government had in mind when shared parental leave was introduced to encourage parents to share childcare responsibilities. As we previously reported, the take up of shared parental leave has, not unexpectedly, been low and the lack of enhanced parental pay is likely to be a factor in this especially when many employers still pay an enhanced rate of pay to mothers on maternity leave. 

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 pay and commission – the latest instalment

In our February article we reported that the Employment Appeal Tribunal (EAT) had upheld the decision of the Employment Tribunal in the case of Lock v British Gas (2014). The decision was that an employee who is on holiday should be paid the commission that they would have earned had they not been on holiday. This follows the European Court’s earlier ruling in the case that employees who are on holiday should not be financially worse off because they are taking their holiday. As we anticipated, British Gas did appeal this decision to the Court of Appeal, and the decision of the Court of Appeal has now been released.

Unsurprisingly, the Court of Appeal has upheld the decision of the EAT and held that holiday pay should include the commission which an employee would have earned had they not been on holiday. Arguments were put to the Court that including commission in holiday pay for employees like Mr Lock might have unintended consequences, such as an effect on staff who receive a periodic bonus based on the performance of their team or organisation. However, the Court dismissed those arguments.

The big question which remains unanswered is: what is the reference period which needs to be taken into account when making the calculation of holiday pay? It was hoped that the Court of Appeal would give some guidance on this, not only with regard to commission payments, but also with regard to regular overtime payments. Unfortunately, but perhaps understandably, the Court said that this should be decided on a case by case basis. Employers will therefore have to continue to try to make sensible assessments which take into account the seasonal variations of their particular business.

British Gas have not yet indicated whether they will seek leave to appeal to the Supreme Court in this case. We understand that there are approximately 1,000 potential similar claims from Mr Lock’s colleagues in the pipeline (no pun intended!).

If you need help in deciding how to calculate holiday pay for your employees, or indeed with any employment matter, do 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.

Q&A: Careless whispers

Question: I am looking at ways to ‘exit’ a long-serving employee from the business, and would like to have a conversation with him about a Settlement Agreement. I think this will come out of the blue to the employee, as I’ve not previously raised any issues with him. The employee has a disability, although this has nothing to do with my reasons for wanting to terminate his employment.
My concern is that, if the negotiations break down, it is likely he may bring claims in the Employment Tribunal. I want to know how careful I need to be about what I say during any conversations about the Settlement Agreement. Could anything said in the negotiations come back to haunt me if things don’t work out?

Answer:

Settlement Agreements can be a useful tool for dealing with employee departures – the basic principle is that by signing the Settlement Agreement, the employee is agreeing to waive potential employment claims against you. (You may find our FAQ’s on Settlement Agreements helpful). You are right to give some thought as to whether anything said during the negotiations could be used by the employee if he decides to reject your offer of a Settlement Agreement and takes you to an Employment Tribunal.

Anything said during the negotiations between you and the employee (or in written correspondence) in situations where there is a genuine attempt to settle an existing dispute cannot be put before the courts as evidence in subsequent proceedings – this is known as the Without Prejudice rule. The fact that negotiations have taken place, however, may be admissible.

In your case it appears that there is no existing dispute, as the employee is currently unaware that there are any issues, so the Without Prejudice rule would not apply. In order to address this problem, the concept of “protected conversations” or pre-termination negotiations was introduced by the government in 2013.

Any pre-termination negotiations you have with the employee in situations where there is no existing dispute cannot be used as evidence in an ordinary unfair dismissal claim (unless there has been improper behaviour). This protection applies to the fact that negotiations have taken place, and to any evidence of internal discussions e.g. correspondence between management and HR. A recent case has confirmed that, under the pre-termination negotiation rules, the protection cannot be waived – even if the parties agree.

As mentioned above, this protection only applies where the employee brings a claim for ordinary unfair dismissal, so other claims such as discrimination claims would not be covered. This leaves open the risk that evidence of what was said in settlement discussions with the employee could be used as evidence in relation to a discrimination claim and, if there was no existing dispute, it would not be covered by the Without Prejudice rule either.

So, in answer to your question – yes, it is possible that things said during your negotiations with the employee could come back to haunt you if you are not able to come to an agreement with him and he brings claims against you in the Employment Tribunal. Although any pre-termination negotiations would be “protected conversations” and therefore could not be used as evidence in an unfair dismissal claim, the employee could still refer to them in a discrimination claim. If you could give me more information about the specific situation, I can advise on what the particular risks might be. There may be steps that could be taken which might help to minimise the risks, however, it is always a good idea to take advice before going ahead.

Although labelling something as ‘Without Prejudice’ is not a watertight method of ensuring that the protection will apply, we recommend making it clear to the employee that your conversations are on a Without Prejudice basis. It is also a good idea to make it clear that any offer you make is ‘subject to the terms of a Settlement Agreement’ – i.e. none of the offer will be binding unless and until the Settlement Agreement is signed.

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]). Where appropriate, we can give expert guidance on what any potential claims may be worth, and on how best to approach a potential Settlement Agreement, including preparing the agreement itself.

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.

Sexual harassment: things you need to know

The legal definition of sexual harassment is when a man or woman is subject to unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of either violating the person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Conduct of a sexual nature can include unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature.

Sexual harassment can lead to claims being made in the Employment Tribunal under the Equality Act 2010, and an employer may be deemed as vicariously liable for the actions of the harasser. Vicarious liability is a legal term which deals with the situation where someone is held responsible for someone else’s actions (for more information see our previous article here). Generally, an employer will be liable for the acts of its employees, provided those acts are done in the course of their employment. However, individual employees can also be personally liable for acts of harassment too.

There some important points to note about sexual harassment claims as set out below:

1. It is a myth that ‘banter’ cannot constitute sexual harassment. The Employment Tribunals have continually rejected employers’ attempts to defend sexual harassment claims by saying that it was only banter, or providing evidence that the employee bringing the claim actively engaged in such banter. In the Employment Tribunal case of Smith v Renrod Ltd (2015), Miss Smith was employed as a sales executive in a car dealership and claimed she had been sexually harassed by her manager, who had made comments to her which were of a sexual nature. The Employment Tribunal found that there was a culture of sexual banter in the workplace in which both Miss Smith and her manager actively participated, and that Miss Smith was not shocked by the day to day banter between colleagues. However, it found that the comments made by her manager did go too far. While the Employment Tribunal found that Miss Smith was relatively robust and not adverse to participating in, or even initiating, sexual banter, the conduct and comments of her manager went beyond what was acceptable to her.

2. A second myth is that a single comment which is not repeated cannot constitute sexual harassment. In Insitu Cleaning Co Ltd and another v Heads (1995), the Employment Appeal Tribunal upheld the finding that a woman had been sexually discriminated against when a manager made a single comment to her about the size of her breasts. It was held that the Employment Tribunal was entitled to conclude that the one incident was sufficiently serious to amount to sexual harassment.

3. It may not necessary for a victim of sexual harassment to have raised a complaint. Employment Tribunals recognise that the employee is normally in an unequal relationship with the harasser, and that it is a natural reaction not to wish to create further conflict for fear of losing their job. In Munchkins Restaurant and another v Karmazyn and others (2009), the Employment Appeal Tribunal upheld a claim that a restaurant manager had sexually harassed four waitresses. This was despite the waitresses putting up with the conduct for some time, and even initiating talk of a sexual nature as a method of coping with his behaviour.

4. Employment Tribunals considering sexual harassment claims will take into account how a complainant perceives the actions that have led to the claim. However, they will also consider whether or not it was reasonable for the conduct to have had the effect of violating dignity or creating an offensive environment. Therefore, an employer could have a defence if it thinks that an employee is being “over-sensitive”. For example, overhearing a sexual swearword in a work environment where swearing is commonplace might not be considered as sexual harassment.

5. It is also possible for someone to claim sexual harassment when the offending remark or action is not directed at that person. For example, a woman who overhears a sexist remark could bring a sexual harassment case, even if the person who made the comment did not realise that she was listening at the time.

Given the above, what can you do as an employer do to help prevent sexual harassment claims?

Employers should make it clear that sexual harassment in the workplace will not be tolerated, and a statement to that effect could be included in any equal opportunities policy. Employers should also specify how incidents of sexual harassment can be reported. However, employers should probably go further than that and provide training to all employees about this, as well as training managers on how to deal with situations where sexual harassment is involved.

Employers should act quickly to stop banter or behaviour that is getting out of hand, which may be as simple as informally speaking with the employee or employees who are engaged in that banter to ask them to stop, or commencing disciplinary action if they do not stop, or if the comments are of a sufficiently serious nature. Complaints about sexual harassment should never be ignored and should be dealt with in a timely and reasonable manner. It is also crucial to have an up to date Equal Opportunities policy and to ensure that all staff are aware that discriminatory behaviour will not be tolerated. This could prove crucial in your defence against a discrimination claim. Even better, you could offer Equal Opportunities training to your staff – please contact us if we can help with this.

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.

Q&A: Responsibilities to pregnant employees

Question: What responsibilities do we have to a pregnant employee? She tells us that she has been advised by her doctor that she should reduce her hours, as she has a high risk pregnancy. However, she says she cannot afford to lose pay. What obligations do employers have in this situation?

Answer:

This question involves an overlap between health and safety law and employment law. In the particular situation you have referred to, it doesn’t sound as if you have had the benefit of any medical advice yet, and I am not sure if a risk assessment has been carried out. In the first instance, it would be a good idea to get some medical advice so that you can be better informed about her condition and what steps you can take to remove the risks to her health. For example, what level of reduction is the doctor recommending and why?

As soon as an employer becomes aware that an employee is pregnant, has given birth or is breastfeeding they are under a duty to take reasonable steps to remove or prevent exposure to risks, and must inform the employee of the risks and the steps taken. This is why employers carry out a risk assessment. Failure to undertake a risk assessment (or to act on its findings) may amount to discrimination on the grounds of pregnancy or maternity.

If a risk is found, then the employer is required to temporarily alter the employee’s working conditions or hours of work (if this is reasonable and if it would avoid the risk). This might include reducing the hours of the employee you have mentioned, but it might also include giving her alternative duties (this would of course depend on the nature of the role etc).

If you do this, then any alternative duties must be suitable and appropriate for her to do in the circumstances, and the terms and conditions must not be substantially less favourable. In practice, this means that pay and benefits should normally be the same.

There is a bit of a grey area around whether employees who reduce their hours in these circumstances should have their pay reduced pro rata, as the law is unclear. She should however not lose any components of her pay which reflect her status (e.g. length of service). In practice, many employers do choose to pay full pay, but your view on this may depend on factors such as the extent of the reduction in hours. I am happy to advise you further on this once we have more information.

If you do not have any suitable alternative work, or if she reasonably refuses it, you would need to suspend her for as long as is necessary to avoid the risk. The pay during maternity suspension is calculated based on an average over the previous 12 weeks, but if the employee does have normal working hours then it is based on basic pay only. This can mean that some women do suffer a loss of income when they are suspended.

If you make an offer of alternative work and the employee unreasonably refuses it, she is not entitled to be paid during the period of suspension.

As I mentioned above, I would suggest that you ask the employee for her consent to contact her doctor so that you can be clear on their view of the risk, and then you can take that into account when conducting your risk assessment. From there, you can consider whether you are able to offer the reduction in hours, whether there may be alternative duties, or whether as a last resort you need to suspend.

It is also important to keep the situation under review, as it may be that her condition improves or deteriorates as her pregnancy continues.

You might find it useful to refer to the Health and Safety Executive’s helpful flowchart on this subject, which is available here: http://www.hse.gov.uk/mothers/docs/pregnant-workers-flow-chart.pdf

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.

Reminder – National Minimum Wage increases on 1 October 2016

Just a reminder that there will be an increase to the hourly rates of National Minimum Wage from 1 October 2016 as follows:

  • The rate for workers aged 21 to 24 will increase to £6.95 (currently £6.70).
  • The development rate (workers aged 18 to 20) will increase to £5.55 (currently £5.30).
  • The young workers rate (non-apprentices aged under 18 but above compulsory school age) will increase to £4.00 (currently £3.87).
  • The apprenticeship rate will increase to £3.40 (currently £3.30).

The National Living Wage for workers aged 25 and over (which was introduced in April 2016 – please see our previous article on this here) remains at the rate of £7.20.

Please also note that the above National Minimum Wage rates, including the National Living Wage, will be uprated from April 2017.

We will keep you informed as and when the increased rates are announced.

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.

LEGAL INFORMATION

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