POST BREXIT – EMPLOYEE SETTLED STATUS AND PRE-SETTLED STATUS

settled status

In the week when the UK Government announcing proposals for a points-based immigration system, we consider the position of the EU citizens already living and working in the UK.  3.2 million applications have already been received by EU citizens seeking permission to remain and work in the UK. With business leaders concerned about meeting the flexibility of the UK workforce to meet future labour market demands, here is LexLeyton’s guide on what UK employers ought to know about the EU Settlement Scheme.

Even though freedom of movement continues to apply for EU citizens during the transition period, on 31 December 2020, EU citizens will no longer have an automatic right to live and work in the UK.

EU citizens currently living in the UK need to apply for ‘settled’ or ‘pre-settled’ status before 30 June 2021 under the EU Settlement Scheme.

30 June 2021 is the deadline for applying; not for being granted either settled or pre-settled status.

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Whistleblowing

Section 47B of the Employment Rights Act 1996 says that an employer must not treat a worker badly (subject them to a detriment) if they have 'blown the whistle' on wrongdoing (made a 'protected disclosure'). In Tiplady v City of Bradford Metropolitan District Council, the Court of Appeal looked at what being treated badly 'in employment' means.

The employee was a senior planning officer for the Council. During her employment, she was also in contact with the Council as a householder about sewer issues and building a shed on her property. The employee thought the Council dealt with these issues unreasonably. She resigned and claimed she had been treated badly because she had blown the whistle on the sewer and shed issues.

The employment tribunal said that she could not bring whistleblowing claims under section 47B. She had 'blown the whistle' as a householder rather than an employee. Any detriment was levelled at her in a private capacity and not as an employee. (The tribunal didn’t much like the facts either, saying that the detriments either hadn’t happened or were unrelated to a protected disclosure.) The employee appealed. The Employment Appeal Tribunal and the Court of Appeal agreed with the employment tribunal. The question was whether any detriment had been suffered 'as an employee'. In this case any alleged detriments were levelled at the employee as a householder and not as an employee. She couldn’t bring a claim under section 47B.

This situation will be rare but might be helpful to businesses who provide services to individuals who also work for them. Although detriments in a field other than employment can't be actioned under s47B, retaliatory treatment should always be avoided in business. It's better to deal with issues head on rather than trying to dodge them.

Equal pay

The Equality Act 2010 sets out the law in relation to equal pay. Male and female workers should be paid the same for doing the same job (like work), work which is given the same rating under a job evaluation scheme (rated as equivalent) or work of equal value, unless there is a reason for the pay difference that is not discriminatory. This non-discriminatory explanation is called the 'material factor defence'. It means that there is something (a material factor) other than discrimination which explains the pay difference. If a man is paid more than a woman doing the same job because the market rate for the job was higher at the time of his recruitment, that might be a material factor defence.

Equal pay has hit the headlines recently. The BBC's Samira Ahmed won her case for equal pay. The employment tribunal agreed that her work on Newswatch was 'like work', or work of equal value, to Jeremy Vine's job on Points of View. The BBC were unable to show that the difference in pay was due to something other than sex discrimination.

What do high paid BBC executives have to do with small businesses? The BBC equal pay cases are a reminder of how unequal pay between the genders is still a problem, even when the individuals are in plain sight in front of a national audience. The best way to avoid equal pay claims is to have transparent processes for determining pay, with jobs rather than people determining pay rates where at all possible.

Employees’ happiness

Are you doing enough at work to contribute to your employees' happiness? In his new book 'Can we be happier? Evidence and Ethics', Richard Layard looks at happiness in general in the modern world. He advocates the Happiness Principle, where people should aim to produce the greatest happiness possible and create the least misery. He looks at how employers can play a part in this plan.

Layard quotes a study by Daniel Kahneman which looked at the times of day which are happiest for people. The study found that the worst time of day is when an employee is with their boss. The study also found that most people don't like their jobs. It's difficult for employers to change the work that people are employed to do, but Layard says there are things that employers can do to improve happiness among employees:

  • Allow workers to influence how work is organised;
  • Reward team rather than individual performance;
  • Appoint managers who can inspire and lead effectively;
  • Run courses on wellbeing;
  • Take mental illness seriously, with managers who can spot it and know where to get help.

Employee happiness isn’t the only gain here. Happy employees are likely to be more productive, more willing to go the extra mile for their employer. Greater productivity means greater profit. And that will make employers happy too.

National minimum wage

You may remember that the Low Pay Commission reported to government back in Autumn 2019 and recommended increases to the national minimum wage and national living wage. The national living wage is the minimum pay required for workers who are aged 25 and older. It is a legal requirement to pay the national living wage where it applies rather than a choice.

From April 2020, these changes to minimum hourly rates will come into effect:

  • NLW for workers age 25 and over – from £8.21 to £8.72 per hour;
  • NMW for workers aged between 21 and 24 - £7.70 to £8.20;
  • NMW for 18-20 year olds - £6.15 to £6.45;
  • NMW for 16 and 17 year olds £4.35 to 4.55;

The NLW is expected to rise to £10.50 per hour by 2024. There are also plans to reduce the age at which the NLW applies from 25 to 23 by 2021, and to 21 within 5 years.

These pay rises, all of which are well over inflation, will add up. They will have a particular impact on small employers, especially in a time of economic uncertainty. The Federation of Small Businesses has said the wage hikes might result in lower recruitment, cancelled investment plans and redundancies. The BBC reports that businesses have urged the government to reduce costs elsewhere. Look out for further developments.

Harassment

Employers must protect their workers from discrimination and harassment. An employer will be legally liable for harassment at work if they have not taken reasonable steps to prevent it. The Equality and Human Rights Commission has published some technical guidance on sexual harassment and harassment at work.

The guide is quite long at 84 pages but is very readable. It takes the reader though the legal definitions of harassment in relation to a range of protected characteristics such as race, age and sex. The section on harassment (section 2) is particularly helpful at demonstrating what harassment can look like at work. The guide also covers victimisation, the legal claim an employee can bring if they are treated badly by an employer after raising allegations of discrimination or harassment. Victimisation can play a role in employees not reporting harassment. The guide contains helpful examples, some of which are based on real cases.

The most useful part of the guide for employers is section 5 which sets out how to prevent and respond to harassment as an employer. It takes a tour through the importance of policies and procedures, including helpful guidance on what a good policy should contain. It also contains guidance on detecting harassment, assessing risks relating to harassment in the individual workplace and responding to harassment allegations when they are made. Read the guidance here:

https://www.equalityhumanrights.com/sites/default/files/sexual_harassment_and_harassment_at_work.pdf

Unfair dismissal – suspension

Many employers automatically suspend an employee accused of misconduct while they investigate the allegations. Many employees don’t object. The employee in Harrison v Barking, Havering and Redbridge NHS Trust did object and brought a claim in the High Court to stop what she said was an unfair suspension.

The employee was Deputy Head of Legal Services. She was suspended from work due to allegations about her handling of a clinical negligence case. She wasn’t provided with the details and ended up going off sick with stress. The employer asked her to return to work on restricted duties. When she refused, she was suspended for failing to follow a management instruction. The employee brought a court claim for an injunction to stop the suspension and return to most of her normal duties. She said the employer's behaviour in suspending her breached the duty of mutual trust and confidence.

The High Court granted the injunction. There were strong grounds for arguing that the suspension breached mutual trust and confidence because there was no reasonable or proper cause for suspending her from most of her duties. The employer's arguments purporting to justify suspension – namely criticisms of the employee's work – came after the decision to suspend rather than before and no evidence had been provided.

Injunction proceedings are rare in employment cases. However, this case is a reminder that knee-jerk suspension decisions can come back to bite an employer. ACAS recommends that suspension should only happen in misconduct cases when the allegation is serious and when there has been a severe breakdown of the working relationship, or there is some other risk, such as the employee interfering with evidence or witnesses. Employers should always consider other options first, such as a temporary team move or different hours of work.

Indirect discrimination

An employment tribunal has recently looked at indirect discrimination and how it applies to dress codes. Indirect discrimination is where an employer applies a policy or practice to all employees, but which negatively affects a particular group who share a protected characteristic (as well as the individual employee). The employer can defend an indirect discrimination claim by showing that the policy is justified as a proportionate means of achieving a legitimate aim.

In Sethi v Elements Personnel Services, the employee was a Sikh who adhered to Kesh, the requirement not to cut body hair. He was seeking work through a temp agency which worked with five-star hotels. The agency had a 'no beards' policy, on appearance rather than health and safety grounds, allegedly due to client demands. When he was told that he would not be given work unless he cut his beard, he brought an indirect discrimination claim.

The employment tribunal said that the 'no beards' policy which applied to everyone placed Sikhs in general, and the employee in particular, at a disadvantage. They said that the agency's aim of meeting client demands was a legitimate one. However, the blanket ban was not a proportionate means of achieving the aim. Instead, the agency should have put the employee on the books and sought specific exceptions based on his Sikh religion as and when required. The agency hadn’t even asked its clients whether they would make an exception for a Sikh worker. Not all the hotels had a no beard requirement anyway. The agency had indirectly discriminated against the employee.

Although this case doesn’t create new law, and isn’t binding on other employers, it is an important reminder about the potential pitfalls of dress and appearance codes. Employers must ensure that dress codes or appearance policies do not negatively impact on people who share particular characteristics in a way that cannot be justified.

Unfair dismissal

A fair dismissal must be preceded by a reasonable investigation, to establish the facts of the case. The ACAS code says that the investigation might involve an investigation meeting but will sometimes involve the collection of evidence for use at the disciplinary hearing instead. The Employment Appeal Tribunal in Sunshine Hotels v Goddard has analysed what a reasonable investigation looks like.

The employee was accused of sleeping whilst on duty at the hotel. He was suspended pending an investigation. The investigation involved the manager watching CCTV footage of the hotel. The employee was sent a letter inviting him to an investigation meeting on 16 April, saying there would be a disciplinary hearing if there was any substance to the allegations. The 16April meeting turned out to be a disciplinary hearing at which the employee was dismissed. The employment tribunal said the dismissal was unfair because there had not been a proper investigation. The employer appealed because the employment tribunal appeared to suggest that a separate investigation hearing was required in every case for a dismissal to be fair.

The Employment Appeal Tribunal dismissed the appeal. The tribunal's decision was based on the lack of a proper investigation overall, rather than the lack of an investigation meeting. Looking at the CCTV wasn’t enough investigation. The employer could have walked the usual patrol route with the employee to see whether it naturally bypassed CCTV as the employee alleged. Whether that investigation took place by way of a meeting or another method was irrelevant, but neither were done in this case. The employee didn't know enough about the allegations at the outset of the disciplinary hearing to defend himself properly, not least because he thought he was attending was an investigation rather than a disciplinary hearing.

This case confirms that an investigation meeting is not always required, but an adequate investigation is. Employers must ensure that they gather all the relevant facts before any disciplinary hearing. In cases such as this, where someone is accused of misconduct and offers an explanation, those explanations should be investigated before any disciplinary hearing takes place.

Parental bereavement leave

The government has announced that parents will be entitled to bereavement leave from 6 April 2020 (subject to parliamentary approval). Employees who lose a child under the age of 18, or who suffer a stillbirth from 24 weeks of pregnancy, will be entitled to two weeks' leave. This leave can be taken in one block or as two separate weeks. This is a 'day one' right, with no need for a period of continuous employment to qualify for it.

Employees who have been employed for at least 26 weeks and whose average earnings exceed the lower earnings limit (currently £118 for 2019/2020) will also qualify for statutory parental bereavement pay (SPBP). SPBP will be calculated in the same way as paternity pay, which is £148.68 for 2019/2020, or 90 per cent of average weekly earnings if that is lower. Although many parents may choose to take this leave immediately after the death of a child, the regulations are likely to give parents up to a year to take this leave.

This right is the most generous in the world in relation to child bereavement, with only a few countries offering any bereavement leave at all. Most employers are already compassionate and flexible when an employee suffers such a devastating loss. The law is simply catching up with good practice.

Veganisme

Everyone's talking about veganism, and not just because of Veganuary. In January, an employment tribunal found that a vegan was protected from discrimination by the Equality Act 2010. The employee's ethical veganism met the legal test for a 'belief' which, like religion, can be a protected characteristic. In order to qualify for protection, the belief must:

  • be a genuinely held belief rather than an opinion or viewpoint;
  • be about a weighty or substantial aspect of human life;
  • attain a certain level of cogency, seriousness, cohesion and importance;
  • be worthy of respect in a democratic society.

In Casamitjana v The League for Cruel Sports, the employee's ethical veganism went beyond not eating meat or avoiding animal products. He avoided clothes, shoes and cosmetics containing animal products and sought clarification on ingredients from companies before using them. He walked rather than getting public transport because it was less likely to kill insects. He paid for items using cards or coins because bank notes contain animal products. He worked in animal protection and was heavily involved in animal rights activism. He only dated fellow vegans and did not allow non-vegan items in his home. He shaved using an electric razor powered by certified vegan friendly electricity. Based on these beliefs, the employment tribunal judge said that he was 'satisfied overwhelmingly' that ethical veganism was a philosophical belief. The employee can continue with his discrimination claim to fight against his dismissal.

Although this is being referred to as a landmark case, the effects of the decision are limited. Other courts and tribunals don't have to follow this employment tribunal judgment, as they would an appeal decision. An appeal is unlikely because the employer was prepared to concede the point (the judge rejected that offer and went on to make his own decision). Most importantly though, the employee's entire life – professional and private – was dedicated to ethical veganism in a more extreme manner than most vegans, even those who describe themselves as ethically vegan. Not all vegans will meet the legal test.

That said, employers need to be aware of the potential for veganism to be a protected characteristic and ensure that employees are respectful of other people's lifestyle choices. Ribbing a vegan colleague on the content of their packed lunch is probably now off the menu.

#MeToo in the Workplace – Where are we now?

Valentine’s day is a day for sharing the love but should you share it in the workplace?

It’s been more than two years since the investigation into the sexual misdeeds of Harvey Weinstein unleashed the #MeToo movement against sexual harassment and sexual assault.

Employer’s obligations

Employers have a duty of care to protect their workers and will be liable for harassment in the workplace if they have not taken reasonable steps to prevent it.

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World Cancer Day – Impacts in the Workplace

Every 4th February is World Cancer Day – a time when we can take a moment to consider the impact of this serious illness on people around the world. The theme of this year’s World Cancer Day is “I Am and I Will”. The focus is on the individual and on making a commitment to act to reduce the global impact of cancer.

 “I Am” leads to thoughts of all those employees affected by cancer.  If an employee suffers from cancer then they are disabled: under the Equality Act 2010, cancer is a deemed disability from the point of diagnosis. The employee will be protected from various types of disability discrimination.

However, protection from disability discrimination also extends to those associated with a person with cancer. For example, an employee whose wife has been diagnosed with cancer will benefit from protection under the equality legislation due to his association with a disabled person. It would be discriminatory to treat that employee less favourably because he has taken time off work to care for his ill spouse.

I Will” urges us take action. For employers, the commitment to act where an employee has been diagnosed with cancer is recognised under the law in the duty to make reasonable adjustments. Where an employee is disabled, an employer has a duty to make reasonable adjustments to avoid the employee being put at a substantial disadvantage in the workplace when compared with a non-disabled person. A failure to do so would amount to disability discrimination.

For an employee with cancer, the Equality and Human Rights Commission suggests that a reasonable adjustment could be to allow the employee a period of disability leave so they can undergo treatment and rehabilitation. When the employee is fit enough to return to work, they may wish to work flexible hours to accommodate their health issues. It would a reasonable adjustment for their employer to permit them to do so.

An employee with a serious medical condition such as cancer will require ongoing support from their employer.

Reach out to the LexLeyton team for support in managing any of the issues raised here. We can assist with advice on how best to handle any challenges that an employee’s particular situation raises, provide policies and training on the complexities of dealing with disability in the workplace and a whole range of services to benefit management of a sustainable working environment legal@lexleyton.co.uk

For more on World Cancer Day, visit www.worldcancerday.org.

Data protection – time to shift the focus

28 January is Data Privacy Day; ironically not something that is widely known.

Approaching two years since the inception of GDPR and its hard to escape the feeling that we are all just like Alice, tumbling down the rabbit hole into an all-encompassing dystopia.

Our smartphones notify us of the traffic between our location and destination, often before we set off.  We are asked to review meals we have or venues we visit, seemingly just by having our presence detected there. Our steps, heartrate and even our breathing is monitored from our pocket or handbag. Smart speakers and Smart TVs and Smart watches monitor and process and predict seemingly every facet of our daily lives.  At first the quirkiness may excite, yet the volume and depth of surveillance over our ‘private’ lives is not without a level of discomfort at times.  That much is incontrovertible.   Curiouser and curiouser.

Privacy in public

With such an arsenal of monitoring capability, legislation was absolutely imperative to answer questions around data privacy in the workplace. As a general rule, one cannot reasonably expect privacy in a public place. That said, the GDPR and Data Protection Act 2018 instilled a number of clear principles around how data is collected and managed at work.  Cases in the senior domestic and even European Courts examine the scope of an employer’s right to pry/supervise. Very often, the judgements in these cases are so fact specific, it is difficult to draw any absolute or general conclusions from them.

On the flipside, the Information Commissioner’s Office (ICO) routinely issues fines to UK businesses for misusing or failing to properly secure personal data. Cold calling is the example which comes to many minds, yet large businesses such as EE and Bounty (the pregnancy/maternity one, not the chocolate and coconut one) have received substantial fines from the ICO in the past 12 months.  Europe-wide, the problems and fines demonstrate a recurring theme.

Quite often, these fines are entirely avoidable through businesses seeking appropriate advice and taking necessary preventative steps. 

Making sure your business is ready

All businesses, of any size and sector, should have a Data Protection Policy.  Privacy notices issued are likely to address recruitment, employment, customer and contractor relationships. 

A level of expert training around GDPR, particularly in the context of human resources and management, is another increasingly common tool to prevent mishaps.

Make sure your contracts and staff handbook are regularly reviewed and updated.  From bespoke policies, privacy notices and tailored GDPR in HR training courses, we provide clarity and peace of mind.

For any UK businesses, if there is doubt about whether your business is ready, LexLeyton will provide a free review of your HR documentation and strategy to identify weaknesses in your data management. 

TUPE Transfers and ‘Workers’

The worker status debate leached into the TUPE sphere towards the end of 2019. A 'worker' is defined by section 230(3) of the Employment Rights Act 1996 (ERA) as:

  • An individual who…works under:
    • A contract of employment, or
    • Any other contract…where the individual undertakes to do or perform personally any work…for another party who…is not...a client or customer of…the individual.
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Unfair dismissal

If an employee has contributed to their dismissal, their compensation can be reduced by anything up to 100%. This is called 'contributory fault'. A tribunal will use its discretion to decide what deduction would be fair in any given case. In Jagex v McCambridge, the Employment Appeal Tribunal looked at whether the conduct in question must be gross misconduct in order to justify a reduction for contributory fault.

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Philosophical belief discrimination

The Equality Act 2010 protects people from discrimination based on their philosophical beliefs. In order to be protected, the belief must be:

  • Genuinely held;
  • Be a belief not an opinion or viewpoint;
  • Concern a weighty or substantial aspect of human life;
  • Have attained a certain level of cogency, seriousness or importance (in a similar way to a religion);
  • And must be worthy of respect in a democratic society.
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Sex discrimination

Section 18 of the Equality Act 2010 deals specifically with pregnancy and maternity discrimination. A woman bringing a claim under section 18 does not need to show that a male comparator would have been treated more favourably (they can't, because men cannot be pregnant or go on maternity leave). In normal direct discrimination claims under section 13, employees need to provide details of a comparator who was treated more favourably than them in comparable circumstances.

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Whistleblowing

A dismissal will be automatically unfair if the main reason for the dismissal is the fact that the employee has 'blown the whistle' on malpractice. The Supreme Court has recently decided that an employer was liable for automatic unfair dismissal even though the decision maker was unaware of the protected disclosures.

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“Hangover days”

How many working days is your business losing to hangovers? This is particularly relevant after the festive season where Christmas parties and social events often fall on a school night. Did your business suffer a flurry of suspicious tummy bugs during Christmas party season? Some businesses are choosing to accommodate hangovers in a different way, keen to avoid the extra absence which seems to occur around this time of year.

The Audit Lab is a Bolton based business which has decided to do things a bit differently. The business allows employees to book 'hangover days' in advance when they know they are going out midweek. This enables employees to work from home in their pyjamas rather than come into the office when feeling delicate. Founder and director, Claire Crompton, told BBC5 Live's Wake Up To Money that the system appeals to the younger generation and promotes honesty. She said that alarm bells might ring if staff were pulling two or three hangover days a week or missing important meetings but said employees have been respectful so far.

Does this kind of system encourage heavy drinking mid-week or simply reduce the incidence of employees ringing in sick when they have overindulged? This kind of policy won't suit every business, but flexible working is increasingly becoming the norm. Employers should consider what flexibility can bring in terms of honesty and commitment, as well as the positive effect on working hours lost to sickness absence. And wouldn’t you rather know the real reason for someone staying in bed?

Redundancy – alternative employment and trial periods

A dismissal for redundancy is likely to be unfair unless the employer has considered whether there is suitable alternative employment within the business (or group). If suitable alternative employment is offered, it might be subject to a statutory 4 week trial period if the role, place of work or other terms and conditions are different from the previous job. A statutory trial period starts at the end of the employee's employment under their old contract or within 4 weeks of it ending. What happens if a role is deleted in a reorganisation and an employee works in another suitable role for more than four weeks - do they lose the right to a redundancy payment?

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