The sum of the parts does not make up the whole – rest breaks and the law

Under the Working Time Regulations 1998 (WTR), workers are entitled to an uninterrupted break of 20 minutes, on days that they work 6 hours or more. If it is not possible for the worker to take this break, and they are what the WTR refer to as a ‘special case’ worker, the employer can avoid breaching the WTR by giving the worker an equivalent period of compensatory rest. Special case workers include those engaged in security and surveillance activities (such as security cards and care takers), workers whose activities involve the need for continuity of service, such as medical staff in hospitals, and those who work at airports or in telecommunications, and some rail transport workers.

The issue that arose in the recent case of Crawford v Network Rail Infrastructure Ltd (2017), was whether a number of shorter breaks, adding up to 20 minutes over the course of the day, could amount to adequate compensatory rest. The Employment Appeal Tribunal held that the period of compensatory rest must, as far as possible, be a continuous, uninterrupted 20 minute period. Network Rail’s argument, that many shorter breaks were actually better from a health and safety point of view, was irrelevant. In this particular case, it was possible for the employer to give the worker the required rest by providing relief staff.

Employers should review their arrangements for workers’ rest breaks, as workers can bring a claim against their employer in the Employment Tribunal if the employer has failed to allow them to exercise their rights to rest breaks. If a claim succeeds, the Tribunal can award the employee such compensation as is just and equitable in all the circumstances.

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.

Mind the Gap! The latest on gender pay reporting

The gender pay gap is an incredibly hot topic at the moment. The fall-out from the BBC’s publication of the pay of its top employees is ongoing, with it only being announced last week that some of the highest paid male stars have agreed to a pay cut to assist the BBC in levelling out the pay for the men and women at the top.

And now with gender pay reports for other organisations starting to trickle through, it will be very interesting to see what the effects are for employers when the differences in mean and median pay are visible for all to see. Although of course the information in most gender pay reports won’t be as specific as the details the BBC was required to publish about its top earners, I strongly suspect that in some cases the percentages may trigger difficult conversations.

As you are hopefully already aware from our previous articles, the first gender pay reports are required to be published on or before 4 April 2018 (for private and voluntary sector employers with 250 or more employees). (There are separate requirements for public sector bodies to publish by 30 March 2018).

According to recent estimates, only 7.5% of the employers who are required to publish a report have done so to date. With only 9 weeks to go, is your report nearly ready? Do get in touch if you need help with preparing the report.

One of the grey areas when the regulations were first published was how enforcement of the rules would work in practice where employers didn’t publish their data as required, or when the data they published was wrong. Initially it seemed that the regime was going to be rather ‘toothless’, until the Government indicated that it would give responsibility for enforcement to the Equality and Human Rights Commission (EHRC). However, little was known about what powers the Commission would have.

The EHRC has now published its draft enforcement strategy (comments are invited by 2 February 2018). Although it says it would firstly try an informal approach and attempt to gain cooperation that way, they would also plan to use the following powers if the informal approach does not work:

  • Written agreements with employers who are in breach, with the idea being that other enforcement action is suspended if an agreement is entered into.
  • Formal notices for private and voluntary sector employers who have failed to comply with previous written agreements. These would require an action plan to correct the breach, and if that is ignored, it could be enforced via a court order.
  • Potentially unlimited fines and summary convictions for employers who do not comply with measures such as court orders and formal notices.

It remains to be seen how successful the EHRC’s enforcement is going to be (and what resources they will be given for it!). According to recent reports from the FT and other sources, there are a significant number of the reports published so far which show figures that are highly statistically improbable, and are therefore likely to be wrong (whether deliberately or otherwise). These include 16 companies where the gender pay gaps for mean and median pay were both 0%, which is incredibly unlikely to be the case. In their defence, the rules for calculation are complex, and it is possible that some of the errors are genuine.

The EHRC say they are going to prioritise dealing with those who have not published a report at all, and then if it has capacity, it will look at those who have published inaccurate data. At the moment, it seems that some employers are taking the view that they can publish inaccurate information and hope that the enforcement regime won’t pick them up on it, at least in the short term.

Part of the problem too is that the gender pay percentages that the law requires employers to report are by their nature a very blunt instrument. Having figures that show a gender pay gap is not unlawful and does not necessarily reflect any bad practice (or that the employer is likely to face an equal pay claim).

Nevertheless, employers will understandably be wary about publishing information that could lead to them attracting criticism in the media (and social media). One of the ways of addressing that, as I recommended in my previous article, is to take up the option of publishing an optional narrative as part of the report, explaining some of the factors behind the percentages and, if applicable, the steps being taken to try and narrow the gender pay gap.

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.

Porn in the workplace – Part 1

According to Google, over 11 million searches a month are made using the word “porn”. Add in associated words like “porno”, “sex” and “free porn” and the figure rises to over 28 million. Further, in a survey conducted in 2015, 9% of UK workers admitted accessing pornography at work – and if that number admitted it, the true figure is probably very much higher.

Given these statistics it is hardly surprising that many employers have had to deal with issues relating to employees accessing online pornography in the workplace. There are a number of different legal issues which can arise from this type of behaviour. The first, and most obvious, is what action to take against the offending employee. The other main issue is the risk of sexual harassment claims being brought by other employees who have seen and are offended by the pornographic material.

Many employers take the view that employees caught viewing or emailing pornography at work, or using work equipment to do so, commit gross misconduct. However, the Courts and Tribunals do not necessarily agree. If the employee who has been dismissed brings a claim for unfair dismissal, the Tribunal will, as with any other misconduct case, look at whether the employer believed they had a reason to dismiss, whether they had carried out a reasonable investigation, and whether the decision to dismiss was within the band of reasonable responses which an employer might reach. So, in these types of cases, what factors are the tribunal likely to consider?

The first consideration may be where the employee works. If they work in an environment where children or vulnerable people might have access to the computer or otherwise be able to view the pornography, the employee is likely to be expected to adhere to a higher standard of behaviour than might otherwise be the case. This approach was, perhaps unsurprisingly, supported in the Court of Appeal decision in Henderson v London Borough of Hackney [2011]. In that case an inclusion manager at a school who dealt with vulnerable children, some of whom had been the victims of sexual abuse, was dismissed for viewing pornographic images and forwarding them to colleagues on a work computer. In the evidence the Tribunal, which reached the initial conclusion that the dismissal was fair, heard that there were time when pupils would have unsupervised access to her computer and therefore could potentially view the material. Ms Henderson’s argument was that the school had no written policy on what could be viewed at work, or what could be sent on work computers. The material which she had viewed was not illegal, and therefore she argued that she had done nothing to justify dismissal. The Tribunal, Employment Appeal Tribunal and Court of Appeal all disagreed.   The Court of Appeal held that it should not have been necessary to spell out to a person in Ms Henderson’s position that she should not behave as she did – it was obvious.

One thing which was illustrated by the Henderson case was the benefit to an employer of having a policy which makes it clear that this type of behaviour in unacceptable in the workplace. Ms Henderson’s argument that she was not aware that she had done anything wrong because her employer hadn’t specifically told her that this type of behaviour was unacceptable did not succeed in this particular case, but her employer’s case would have been much stronger (and indeed Ms Henderson may never have brought the claim) if they had put a clear policy in place.

Look out for our article Porn in the workplace – Part 2 in next month’s ebulletin.

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.

Mock Employment Tribunal for Sussex CIPD

Have you ever wondered what happens at an Employment Tribunal, or has it been a while since you last went to one? Would you like to experience a Tribunal hearing without the cost, stress and preparation time involved in the real thing?

If so, you will benefit from the Mock Tribunal we will be presenting for Sussex CIPD.

The Mock Employment Tribunal will involve a live hearing, complete with witnesses, cross-examination and a judgment at the end.  It will provide a valuable insight into the workings of a real Employment Tribunal hearing and how to put you in the best position to successfully defend a claim.  It will also help prepare you for what to expect should you ever need to attend a Tribunal as a witness.

A link will be provided to delegates in due course so that they can download and read the case documents in advance, in order to allow the proceedings to be followed closely.  The team at Pure Employment Law will give a step by step explanation of the process and there will be plenty of opportunity to ask questions.

Please note that Pure Employment Law are not able to deal with bookings for this event.

***This event is now fully booked. To join the waiting list for this event, please visit the Sussex CIPD Eventbrite booking page which can be found here.***

 

 

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