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As autumn arrives, so does a wind of change in Employment Law. There are two main dates of change per year when employment changes are set to occur. October 1st is one such date. As always, there have been some interesting cases hitting the courts too! If there is anything covered here that directly affects your firm and you find yourself wanting more information, I love a chat, so give me a call and I will be happy to clarify any issues or investigate any finer details. Call 01245 251007 or email
The national minimum wage rates for all workers will increase as of 1st October 2014. The standard adult rate will increase to £6.50.
From 1 October 2014 employees and agency workers will have a right to take unpaid time off to accompany a pregnant woman with whom they have a “qualifying relationship” to up to two antenatal appointments lasting up to a maximum of six and a half hours each. You may only refuse an individual time off where it is reasonable to do so but sadly, there is no guidance in the legislation as to when it would be reasonable to refuse a request for time off. Included in the “qualifying relationship” will be those who live with the pregnant woman in “an enduring family relationship” and are not a relative of the woman. It does not need to be the father of the child and would cover those in a same sex relationship. It may mean that more than one person will have the right to accompany the pregnant woman. It is also possible that a father may be simultaneously expecting children with more than one woman and in such cases he will be permitted to take time off to accompany each mother as long as he is an employee or qualifying agency worker. I am tempted but I will make no comment on the last scenario! Employees and agency workers who are proposing to adopt will have to wait as the new right to time off work to attend adoption appointments will not come be law until 5 April 2014.
Two reforms commence on 1st October that relate to the Reserve Forces and they could not be more topical! Firstly, there is the removal of the statutory qualifying period (currently 2 years) for unfair dismissal where the dismissal is connected with the employee’s membership of the Reserve Forces. It is already a criminal offence for an employer to dismiss a reservist because they are called out or likely to be called out. In addition, section 1 of the Reserve Forces (Safeguard of Employment) Act 1985 provides that a former employer is obliged to re-employ any reservist who was employed by it in the four-week period before mobilisation. The employee must be allowed to return to their job within six months after the end of their military service, and re-employment should be in the same job and on terms and conditions no less favourable than those which would have applied if there had been no call-up. If total reinstatement is not reasonable and practicable, the employee must be offered the most favourable terms and conditions that are reasonable and practicable in the circumstances. During periods of mobilisation, reservists are paid directly by the MoD. Employers are currently entitled to claim an award of up to £110 a day for replacement costs incurred as a result of the reservist’s absence. However, these replacement costs are limited to the pay of a direct replacement for the reservist or, if appropriate, any overtime payments to existing employees or salary increases for existing employees who cover the reservist’s normal work. From 1st October 2014, small and medium-sized employers can claim an additional monthly payment of £500 for each month that a mobilised reservist is absent from work. The amount is pro-rated for periods of less than a month and where the reservist is contracted to work less than 35 hours a week.
Employment Tribunals will now have the power to order employers found to have been in breach of equal pay law to carry out equal pay audits in certain circumstances. However, employers with less than “10 employees” will be exempt. This does not just depend on headcount, but is calculated on the basis of “full-time equivalent employees” contracted to work 37.5 hours a week.
Undoubtedly, the introduction of fees to the tribunal system has had an effect on reducing claims to employment tribunals but there are challenges to the legality of the introduction of fees. The challenge continues and recently, UNISON applied to admit new evidence. In response, the Court of Appeal has reportedly decided to stay these proceedings while UNISON brings fresh judicial review proceedings back in the High Court. Recent statistics published by the Ministry of Justice do show a significant decline in the number of employment tribunal claims. For now, watch this space!
A former paralegal of a firm of solicitors has been prosecuted under section 55 of the Data Protection Act 1998 for illegally removing sensitive information belonging to over 100 people prior to leaving for a rival firm. The information included workload lists, file notes and template documents that still contained sensitive personal data. This criminal offence is punishable by a fine up to a maximum of £5,000 in a magistrates’ court or an unlimited fine in a Crown Court. The paralegal was fined £300 and ordered to pay a £30 victim surcharge and £438.63 prosecution costs. It is a useful tool that I have used in correspondence, to remind ex-employees of this law if my client suspects the ex- employee still holds or has taken documents relating to clients with a view to act in competition after they have left. It is especially useful if there are doubts about restrictive covenants, or no restrictive covenants in place. This case will be very useful in such circumstances!
Shuter v Ford Motor Company Ltd ET/3203504/13, 30 July 2014 Local employer, Ford Motor Company Ltd paid enhanced additional maternity leave but not enhanced additional paternity leave. Consequently, it faced a claim from an aggrieved Mr Shuter. He took additional paternity leave but only got the usual statutory payment. He claimed Ford had directly and/or indirectly discriminated against him due to his sex. However, the tribunal rejected the claims. It held; the correct comparator for the direct sex discrimination claim was a female applicant for additional paternity leave (a female spouse or civil partner). Such a female would have been paid the same as Mr Shuter! As for the indirect discrimination claim, it clearly did affect more men than women so the next question was whether Ford could justify its policy as a proportionate means of achieving a legitimate aim. Ford argued that the aim of its maternity policy was to promote recruitment, retention and development of women within a male-dominated workforce. In the face of significant documentation as evidence, the tribunal accepted that was Ford’s aim but if you do the same would you have the documentation to support it?
Ridge v HM Land Registry UKEAT/0098/10, 23 September 2014 A recent case reminded employers that an employee has a right to itemised pay statements. If you fail to identify and show deductions properly then you may face having to repay the employee something you could have legitimately deducted. The payslip must specify the amounts of any variable or fixed deductions and the purposes for which they are made. In a recent case involving a deduction for an overpayment of wages, the Employment Appeal Tribunal held that the reduction of a subsequent month’s pay was a “deduction”. The employer had failed to identify the amount and purpose of the deductions on the employee’s payslip and he was entitled to a declaration to this effect but no compensation. The Employment Appeal Tribunal agreed with the tribunal. Whilst, in this case the tribunal did not order damages, be warned as there is no statutory guidance in relation to the tribunal’s making of a monetary award. It comes down to the tribunal’s discretion. Each case will depend on its facts.
Employees are entitled to take a reasonable amount of unpaid time off work to take necessary action to deal with emergencies affecting their dependants. Where the reason (or main reason)for an employee’s dismissal is that they took or sought to take such emergency leave, the employee will have been automatically unfairly dismissed. However, where the employee does take such time but they fail to do so, then the dismissal will be potentially fair. The reason for the dismissal will be a failure to keep the employer informed and not the taking of emergency leave. This is exactly what happened in the case of Mr Ellis. He already had a final written warning on his file. Mr Ellis’s partner was heavily pregnant. There had been concerns about her health on Sunday 5 February 2012 and, on Monday 6 February, he took her to hospital several times. However, he did not contact his employer (Ratcliff) to explain the situation. His father telephoned Ratcliff in the afternoon. The next day, Mr Ellis accompanied his partner to hospital where she was admitted to have the baby. Again, he did not attend work and did not telephone his employer at all. On 8 February 2012, Mr Ellis received a text telling him to contact the office urgently. When Mr Ellis did so he was severely criticised for failing to make contact and for not coming into work. That evening he left a message on the answerphone stating that he would not be in work the following day. A claim like this is bound to make an employer nervous but at the Employment Tribunal, the judge found that, even if his phone battery had run down, Mr Ellis could have recharged it in time to make appropriate phone calls early in the morning to his employers or used a public phone. Mr Ellis appealed but the Employment Appeal Tribunal dismissed the appeal. The facts of this case highlight the need for employees to ensure that they make contact with their employer to tell them why they are absent as soon as reasonably practicable for them to do so and shows that Employment Tribunals do recognise that “being reasonable” is a requirement of employees as well as employers. (Ellis v Ratcliff Palfinger Ltd UKEAT/0438/13, 17 September 2014 (Bailii).)