Snow and adverse weather – what does the law say?

Today we have seen the first effects of Storm Emma, the ‘Beast from the East’ – she has struck the UK, and now we have snow!

Although there is only a light dusting here in West Sussex (at the time of writing), in other areas trains, buses and aeroplanes have been cancelled, and travelling by car has been treacherous. Some schools have been closed, meaning that many parents have had to stay at home to look after their children.  As even more snow is predicted later this week, employers need to find ways to manage the situation. We look at some FAQs we have received from clients:

Do we have to pay people who don’t make it in to work?

The answer here may depend on the basis on which they work for you. For example, zero hours or casual staff would normally only be paid for hours they actually work. For employees with guaranteed hours, if, for example, you have staff who are able to work from home, then if they do a day’s work from home you would need to pay them. If however you have staff who have to be at the workplace to do their job, then you would be within your rights to refuse to pay them if they don’t come in to work. Alternatively, you could ask them to make up the time.

However, not paying may not necessarily be the best course of action, as it is likely to cause resentment, especially where people struggle, but fail, to get into work because of the weather conditions. It also could potentially give rise to discrimination issues, as disabled staff might find it more difficult to make it into work.

Taking a hard line might also make it more likely that some staff would call in sick instead of admitting they aren’t able to travel, so that they get sick pay.

Unfortunately there will always be some people who use the weather as an excuse to stay at home, but they will nearly always be a small minority. If you have clear and consistent rules on notification and pay, you should keep abuse to a minimum.

What about if we decide to shut down, or send people home early?

If it is your decision to shut down or close the workplace early, then employees would normally be entitled to pay for the rest of the day.

Should I worry about people’s safety when they are travelling to work?

An employer has a duty to take reasonable care of an employee’s health and safety. If you insist on an employee coming to work even where the conditions make it dangerous to do so, you could be in breach of that duty. This could apply if, for example, the police have said that cars should not go out on the roads in a particular area.

I have an employee who didn’t come in, although I think he could have done if he really tried. Can I do anything about this?

As with any absence from work, if you have grounds to believe that it is not for legitimate reasons, you could take disciplinary action. However, whether this is the right approach to take may depend on the evidence you have – it may be difficult to show that he was really able to get to work. It would also send a very negative message to other employees, so is only worth doing if you have strong evidence to rely on.

School closures make things tricky at our workplace. What do I do about parents who are able to get to work, but can’t because they need to look after their children?

Employees have a statutory right to take time off in an emergency to care for their dependents. However, it is not a right to paid leave, so you would need to decide whether or not to pay employees who are in this situation. You could offer to allow them to take the time as holiday, but cannot insist on this.

One of my employees said she was working from home because of the snow, but I know that her three young children were at home as their school is closed. I don’t believe she can work from home while they are there – what can I do about this in future?

There are a number of different ways you could deal with this situation, but if you are concerned that your employee is not able to do her work, then it is probably best to talk to her about it. What action you take (if any) would then depend on how that conversation goes. It will also be important to be consistent – if you check up on her to find out how much work she is doing from home, then you should also check up on other staff too, so that you are not seen to discriminate against those with childcare responsibilities.

I have an employee who has a burst pipe at home. He has called a plumber out and says he needs to take time off to be at home when the plumber is there. Do I have to give him the time off?

The right to time off for emergencies only applies to emergencies involving dependents, so he doesn’t have the right to take the time off. It will probably depend on what you would normally do if someone needs to take time off in similar situations – do you usually allow paid leave, do they make the time up, or do you deal with it as unpaid leave? Most employers find that for these situations, giving paid leave or allowing the time to be made up later is a way of maintaining good relationships with the workforce.

In conclusion, it is always a good idea for employers to be prepared for these sorts of eventualities as part of business continuity planning, as well as employee relations. Not every business will need a formal policy, but it is a good idea to communicate with your staff to ensure that everyone knows what is expected of them. For example, if a staff member cannot make it to work, who should they notify and how? The policy will also help ensure a consistent approach which will help avoid complaints.

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.

 

Is the Government’s response to the Taylor Review good news ?

The Government has recently published its response to the Taylor Review of Modern Working Practices (see our previous article on the Taylor Review here), along with four consultation documents. The consultations are open until 1 June 2018, and cover agency workers, employment status, enforcement of employment rights and increasing transparency in the UK labour market.

According to its response and its accompanying press release, the Government will:

  • introduce the right to request a more predictable contract for all workers. Whilst this goes further than the Taylor Review recommendation for those on zero hours’ contracts to request a contract that guarantees hours that better reflect the hours worked, it is not clear what it means in practice;
  • help enforce workers’ rights to paid holiday and sick pay (the Taylor Review recommended that HMRC should be responsible for enforcing workers’ rights to holiday pay and sick pay. The Government’s response says that it accepts the case for the state taking responsibility for enforcing these rights for the most vulnerable workers, and the issue will form part of the consultation);
  • adopt the Taylor Review proposal to introduce a ‘naming and shaming’ scheme for employers who fail to pay Employment Tribunal awards. There is also a proposal to increase Employment Tribunal fines for employers showing malice, spite or gross oversight and to consider increasing penalties for employers who have previously lost similar cases (Tribunals seem to have been reluctant to impose penalties under the current regime, so it is not clear whether increasing the penalties will result in change);
  • the Government has accepted that the pay reference period for calculating holiday pay for workers without normal working should be increased from 12 weeks to 52 weeks to take account of seasonal changes, and will consult on the details.
  • ask the Low Pay Commission to consider the impact of a higher minimum wage for hours that are not guaranteed by the worker’s contract; and
  • define ‘working time’ for flexible workers who find jobs through an app or online, so they know when they should be being paid.
Family-friendly rights

In terms of family-friendly rights, the Government are proposing to:

  • launch a new campaign to encourage more take up of shared parental leave (current take up is estimated at just 2%); and
  • make sure new and expectant mothers know their rights (but there are no plans to increase the time limit for those bringing Tribunal claims related to pregnancy or maternity discrimination);
Employment status

One of the main issues highlighted by the Taylor Review was in relation to employment status.

The review stated that the legal tests for the different types of status (whether someone is an employee, worker or self-employed) should be set out in law, rather than being determined by Employment Tribunals applying the tests on a case by case basis.

The government has launched a consultation on employment status which asks 64 questions, including looking at issues with the current regime, exploring whether to introduce legislation covering the main principles of the current tests, and whether there should be alignment across the definitions for tax and employment purposes.

As to whether the Good Work Plan is good news for employers, the short answer is we will have to wait and see what the outcome of the consulations are! However, we will of course be keeping you up to date as things develop, particularly around which proposals may be implemented and when.

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 – what’s changing?

With effect from 6 April this year, there are significant changes being made to the taxation of payments made to employees in lieu of their contractual notice.

Under the existing rules, the taxation of a payment in lieu of notice (PILON) has been a complicated area, and one often misunderstood by employers and employees alike. Basically, if an employer made a PILON to an employee in accordance with an express or implied contractual right to do so, then the payment was subject to tax and NI.  However, if there was no contractual right for the employer to make a PILON, then if they did terminate the employment with immediate effect and then pay the employee what they would have earned had they worked their notice, that payment was treated as damages for breach of contract and was therefore not subject to tax (at least for the first £30,000).

From April 2018, all PILONs, whether contractual or otherwise, will be subject to tax and NI. In many ways this simplifies the situation, but clearly where there is no PILON provision in the contract, the cost to both employer and employee will rise.

The entitlement to receive up to £30,000 without deduction of tax or NI on the termination of employment remains. There is still going to be the requirement that this payment has to be non-contractual, but that is not changing.  However what is changing, from 6 April 2019, is that employer’s NI (currently 13.8%) will be payable on any amount of ex-gratia payment to the outgoing employee which is in excess of the £30,000 exemption.

The new rules make it clear that it is the employer’s responsibility to apply the correct tax treatment to the termination payment. The employer will therefore be subject to any unpaid tax, penalties and interest if the payment is not treated correctly.

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 2

In part 1 of this article, I finished by saying how important a clear policy on the use of the the internet and email, and in particular the viewing or sending of pornographic material can be.

That said, a clear policy will not in itself guarantee an employer will succeed. That was illustrated in the tribunal case of Caller v Newham University Hospital (2010). In this case Mr Caller was a telephone operator (honestly!) who was dismissed when it was discovered that his computer contained a number of pornographic images and a sexually explicit video. The hospital had a policy which allowed the personal use of computers, but forbade obscene material. The hospital relied on this at the disciplinary hearing as grounds to fairly dismiss him. However, it transpired that one of Mr Caller’s managers had in fact sent Mr Caller the obscene video, and the tribunal felt that this manager’s behaviour undermined the hospital’s policy to such an extent that the dismissal was unfair. The tribunal was also influenced by the disparity in treatment between Mr Caller and his manager. She had also faced disciplinary action when her behaviour came to light, but she was only issued with a written warning. Although Mr Caller’s dismissal was held to be unfair, his compensation was reduced by 50% to reflect his contributory conduct.

As I said previously, in order for a dismissal to be fair, the employer will need to show that they have carried out a reasonable investigation. The importance of this was illustrated in the tribunal case of Watson v Victoria Hall Limited (2013). In this case Mr Watson was employed as a caretaker in an accommodation block for university students. A portable DVD player and 3 pornographic DVDs were found in his locker. All 3 DVDs had come free with publications – two with the Sunday Sport and one with a ‘lads’ mag’, Loaded.

He was subjected to disciplinary proceedings and dismissed for gross misconduct. At the disciplinary hearing he made the points that he had never played the DVDs on the employer’s premises, and indeed he could not do so because the DVD player did not work on mains electricity, only from a car 12 volt adaptor. He also said that in order to watch the DVDs you needed to obtain codes by telephone and he offered to provide his phone records to show that he had never obtained the codes. The company did not accept these explanations and dismissed him, and dismissed his appeal. The Employment Tribunal found that the dismissal was unfair. They found that the employer had failed to investigate properly, and that at the least they should have checked whether the DVD player could be played on their premises.

The other area of concern for employers is claims of sexual harassment being brought by employees who either see obscene material being viewed, or were sent it by a colleague. Sexual harassment occurs where a person engages in unwanted conduct relating to a person’s sex and the conduct has the purpose or effect of violating that other person’s dignity or creating an intimidating, hostile or degrading environment for them. If an employee inadvertently views or is sent obscene material at work, it is easy to see how this definition could be met. If the person succeeds with their claim, the person who sent or was viewing the material can be held liable, but so can the employer. The employer will have a statutory defence if they can show that they took reasonable steps to prevent the harassment, and a good starting point for this will be to have a policy on equal opportunities and a policy on computer and electronic equipment use. Tribunals will also usually expect to see that these policies are real – not just drafted and then forgotten about. If the employer has provided staff with regular equal opportunities training, then they will be in a much better place to defend any claims.

We have provided a number of training sessions with clients, both to make their staff aware of some of the potential pitfalls, but also to put them in a better position to defend any claims which they may face. If as an employer you want to know more about this, then please do get in touch. 

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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