£25,000 awarded for unfair dismissal due to pregnancy
Leeds Employment Tribunal recently awarded just over £25,000 in compensation after it ruled a woman was unfairly dismissed from her training job at Bradford District Training Agency after she became pregnant.
The woman told the tribunal that her contract had been verbally extended at the same time as she received a promotion and pay increase. She spent a number of weeks chasing the company for her written terms of the extended contract, which would have kept her in her role until March 2017. She was later dismissed, shortly after announcing her pregnancy.
The company stated that the woman lost her job due to redundancy and that her fixed-term contract had expired, it was nothing to do with her pregnancy. However, the tribunal found that the company had offered unreliable evidence and the company’s behavior was ‘substantially and procedurally unfair’ and stated that firing an employee because of being pregnant was a ‘serious act of discrimination’.
The woman was awarded £9,130 for loss of earnings and £15,600 for injury to feelings and £435 for loss of statutory rights.
Naeema Choudry, a partner at law firm Eversheds Sutherland, stated that; “Tribunals will undertake a thorough evaluation of the facts and evidence whether there is an inference of discrimination. While it is not unlawful to make redundant a pregnant employee if the decision is linked in any way to the pregnancy it will amount to unlawful discrimination and unfair dismissal. Similarly, if the contract of employment of a pregnant worker is not renewed because of her pregnancy or future maternity leave, this would also amount to unlawful discrimination.”
This case shows us that tribunals take discrimination very seriously and that they will not simply accept at face value the reason for dismissal put forward by an employer. Employers should also be aware that as there is no cap on the amount of compensation that a tribunal can award in a claim for discrimination.
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National Minimum Wage (NMW) in the news again
A junior minister has revealed that shortfalls in national minimum wage (NMW) payments hit a record £10.9m in 2016, affecting up to 100,000 employees.
Some of the country’s well-known retailers were caught out by failing to pay staff correct wage rates, including John Lewis & Tesco. Tesco stated that it had paid their staff less than the NMW when a new payroll system was introduced, leaving 140,000 of its employee’s being short-changed nearly £10m between them. John Lewis also blamed a payroll error when it was discovered they had breached the NMW laws to the tune of £36m.
Charles Cotton, performance and reward advisor at the CIPD said there were various reasons for shortfalls in payments from employers – “…employers may be ignoring the law and exploiting their workers…another is that the employer doesn’t fully understand the legal requirements…so it is important that employers are aware of the rules.”
This is not the first time NMW underpayments have been brought to light this year, we recently posted a blog on the government's name and shame scheme where 233 employers had to pay back £2m to underpaid workers. And also the release of a recent survey by the Dept. for Business, Energy and Industrial Strategy (BEIS) indicated that 1 in 5 apprentices have not been receiving the mandatory minimum wage. The survey discovered that the number of apprentices receiving less than the NMW they are entitled to rose sharply from 13% for those aged 16-18 to 32% for those aged 19-20.
Underpayments occurring since April 2016 have been subject to a penalty of 200% of the value of the underpaid amount – capped at £20,000 but this does not seem to have had the desired effect of discouraging employers from breaching the rules.
It is extremely important that organisations pay the wage rates that they are legally obliged to. Employers that are found to be deliberately flouting the law should also be prosecuted, so that good companies aren’t undermined by bad ones.
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National Work Life Week – 2nd to 6th October
Organised by Working Families in their yearly campaign National Work Life week will run from 2nd to 6th October 2017. This annual campaign is to encourage both employers and employees to discuss work life balance and talk about wellbeing in the workplace.
On Wednesday 4th October “Go Home on Time Day” takes place, which encourages all employees to leave work on time and have the opportunity to contemplate achieving a work and home life balance. Research carried out by Working Families shows a large number of employees working more than their contracted hours every week. Working Families are encouraging employers to advise their employees to leave work at the correct time on “Go Home on Time Day”.
A toolkit can be downloaded by employers for ways on how they can take part in the National Work Life Week. It can be downloaded by clicking here. This gives employers an opportunity to display to employees and stakeholders that their organisation aims and encourages a healthy work life/home life balance for employees.
The National Work Life Conference for employers takes place in London on 2nd October and employers can register here. The conference aims to provide employers with best practice examples and tools to take back to their workplace.
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GDPR - what businesses need to know
Data protection and how personal data is managed is changing forever. On 25 May 2018 the new General Data Protection Regulation (GDPR) will come into force. The GDPR is a European privacy regulation replacing all existing data protection regulations.
Current data protection legislation in the UK dates back to 1998, predating current levels of internet usage and cloud technology, making it unsuitable for today’s digital economy.
The GDPR will apply to any personal data of EU citizens, regardless of whether it is stored within or outside the EU. Most, if not all companies, process a level of personal data, whether it is customer details or employee details, therefore businesses need to be aware and plan for the new legislation.
What is Personal Data?
The GDPR substantially expands the definition of personal data. Under GDPR, personal data is any information related to a person, for example a name, a photo, an email address, bank details, their personnel file, or a computer IP address.
High Penalties
Ignoring the new legislation is ill advised as there are tough new fines for non-compliance. Companies or organisations found to be in breach of the legislation will face fines of up to 4% of annual global revenue or 20 million Euros, whichever is greater.
GDPR & Brexit
The UK will not have departed the EU on 25 May 2018 and will still be an EU member state. The GDPR will consequently become domestic law and compliance will be mandatory.
Key Changes
Some of the key changes included as part of the GDPR include:
Consent must be clear, distinguishable from other matters and provided in an easily accessible form, using clear and plain language. It must be as easy to withdraw consent as it is to give it.
Breach Notifications; where a breach occurs, the Information Commissioner’s Office and affected data subjects must be notified within 72 hours of the breach coming to light.
Data subjects will have additional rights, including:
- Access Rights: data subjects may obtain from a data controller confirmation as to whether or not personal data concerning them is being processed, where and for what purpose.
- Right to be Forgotten; data subjects will have the right to request that their personal data be erased, or ceased to be processed.
- Data Portability: data subjects will have the right to receive the personal data concerning them, and the right to transmit that data to another controller.
To Do
If you haven’t already started planning for GDPR click here for guidance on how to prepare.
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The importance of having an Absence/Sick Leave Policy
As an employer, it can be quite a daunting prospect having to deal with sick leave and long-term sick leave can throw up other issues making it seem more complicated and even more daunting for the employer to deal with effectively. So how can an employer ensure compliance during these periods of absence?
First and foremost an Absence/Sick Leave Policy needs to be put in place. It must contain clear and concise guidelines for the employee and employer to follow in cases of absence
Your Absence Policy should include:
1. Details of any company Sick Pay Policy:
- If an employer will/will not pay employee while on certified/uncertified sick leave.
- If payments are to be made, length of term for payments.
2. Notification and certification requirements if employees are absent due to illness:
- How much notice an employee needs to give an employer if they will be absent from work.
- After how many days of absence a medical certificate is required.
- For long-term absences, how often a medical certificate is required to be presented to the employer.
3. A statement that in the case of long-term absence due to illness, the employee may be required to attend a company GP or other nominated medical persons/facilities at the request of the employer.
It would also be advisable to include details on what is classed as being short-term, long-term and unauthorised absences - Unauthorised leave is absence by the employee without consent or approval from management or without proof of illness by means of a doctors certificate and should be dealt with as a matter of misconduct via the company disciplinary procedures.
As with most company policies and procedures, once in place, the employees will be aware of what is expected of them during times of absence or sick leave; this, in turn, should eliminate any further issues from arising.
Bright Contracts has a comprehensive Absence and Sick Leave Policy built into the Company Handbook which can be customised to suit your own company specifications and requirements.
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233 employers to pay back £2 million to underpaid workers
233 employers have been ordered to pay back almost £2 million to 13,000 of the UK’s lowest paid workers, as part of the Government’s scheme to name and shame employers who fail to pay the National Minimum Wage and Living Wage.
A list that identifies these employers has been published by The Department for Business, Energy and Industrial Strategy. As well as paying back the money owed, employers on the list have also been fined £1.9 million by the Government.
The sectors that featured frequently on the list included:
• Hair and Beauty: approximately 60 employers, in arrears of £121,000 for circa 200 workers
• Hospitality: approximately 50 employers, in arrears of £77,000 for circa 220 workers
• Retail: approximately 20 employers, in arrears of £1.5m for circa 12,200 workers
Employers in this round fell short by failing to pay workers overtime hours, deducting money from wages to pay for uniforms and wrongfully paying apprentice rates to workers.
Business Minister Margot James said:
“It is against the law to pay workers less than legal minimum wage rates, short-changing ordinary working people and undercutting honest employers. Today’s naming round identifies a record £2 million of back pay for workers and sends the clear message to employers that the government will come down hard on those who break the law.”
This is the 12th round of Government naming and shaming with so far £6 million recovered for 40,000 workers with 1,200 employers being fined £4 million. Employers need to be aware of the National Minimum and National Wage and Apprentice rates. Employers who fail to comply with these rates could face substantial fines and risk their business being named and shamed. To view the current rates click here.
To view the full list click here.
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Mothers potentially missing out on millions in pension rights
Based on a new report, Royal London estimates that the number of mothers missing out on vital credits towards their State Pension has more than doubled in the last two years and now stands at around 50,000. The increase has occurred since the introduction in January 2013 of the ‘High Income Child Benefit Tax Charge’.
This rule means that couples where one partner earns more than £60,000 per year have the value of their Child Benefit wiped out by a tax charge. In response to this, growing numbers of mothers starting a family since January 2013 have declined to claim Child Benefit at all. This means however they are missing out on vital National Insurance credits towards their state pension. Each year missed could cost 1/35 of the value of the state pension of around £231 per year or over £4,600 over the course of a typical 20 year retirement. Together, these mothers have lost hundreds of millions of pounds in retirement.
Prior to the 2013 changes, the number of families receiving child benefit had risen every year since 2007. Since then, the number has been falling. HMRC themselves say: “The number of children for whom Child Benefit is being paid is now at its lowest level since HMRC began producing these statistics (in 2003)”.
A woman who started her family in early 2013 and decided not to claim Child Benefit could have missed out on state pension credits for five years so far. The total loss over those five years could be 5/35 of a state pension. This is over £1,000 per year in retirement. Over the course of a twenty year retirement, such women could be more than £20,000 worse off in total. Worse still, as things stand, Child Benefit claims can only be backdated for three months so they will never recover the lost pension rights.
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Employers must now include voluntary overtime when calculating holiday pay
A landmark legal victory for Unite union means that employers must now include normal voluntary overtime when they are calculating holiday pay. The ruling is of major significance to workers who receive payments for working voluntary overtime but these payments are not reflected in their holiday pay. The union says that the ruling has set a legally binding precedent which employment tribunals across the UK are obliged to follow.
The Case
The case against Dudley Metropolitan Borough Council was brought by 56 council employees who worked on maintaining Dudley’s housing stock as electricians, carpenters, and plumbers. The employees worked regular voluntary overtime, beyond their fixed contractual hours, including Saturdays and they also elected to go on a standby rota every four weeks, to deal with emergency call-outs and repairs. The loss of earnings from holiday pay underpayments varied between £350 and £1,500 a year depending on each worker and how much voluntary overtime they carried out.
The decision by the employment appeal tribunal is the first to confirm that payments for entirely voluntary duties, such as voluntary overtime, standby, call-out work and travel-time linked to that work, should be included in the calculation of workers holiday pay.
Learning Points for Employers
The area of whether overtime should be included in employees holiday pay is a hot topic. This ruling echoes that of Fulton & Baxter v Bear Scotland Ltd when the ET found that overtime and other payments should have been included in the calculation of holiday pay.
Employers who do not pay employees normal voluntary overtime as part of their holiday pay are urged to reconsider this and make a change otherwise they might see themselves in hot water if a case were brought against them.
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The biggest employment law decision ever in the UK?
This week saw the Supreme Court rule employment tribunal fees as unlawful. The ruling has been heralded as possibly the biggest employment law decision ever in the UK.
Employment tribunal fees of up to £1,200 were introduced in 2013. Consequently, we saw a dramatic fall in a number of tribunal cases being brought. In the year before the fees were introduced, there were 5,847 claims taken to employment tribunals. This fell to 1,740 in the year after fees were introduced.
The ruling has been welcomed across the board and is seen as a win for justice. In welcoming the ruling, the CIPD has said that fees were denying access to justice for many people, consequently, it is highly likely that some perfectly valid claims have never been heard.
What does it mean now?
First and foremost, any employee who brought a claim since 2013 will be refunded any fees they paid.
Going forward it is likely that we are going to see a significant rise in the number of claims being brought. Although there might be an initial rush, over time it is doubtful that claim levels will reach the dizzy heights seen pre-tribunal fees. There are two main reasons for this; we now have the Acas mandatory conciliation scheme, as well as the fact that unfair dismissal rights now accrue after two years service rather than one.
To help prevent being caught in a precarious tribunal situation or with a costly settlement, employers should at the very minimum ensure they have robust policies and procedures in place to rely on in such situations.
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Are casual dress code policy’s becoming the norm?
It seems that many traditional firms are relaxing their formal corporate dress code policies in favor of casual dress codes in an attempt to attract young engineers, IT and tech workers. Recently Goldman Sachs adopted a new “year-round casual dress code policy”, applying it to their technology and engineering divisions. As the new policy came into place employees were reminded to monitor situations when it is best to adapt to business attire, particularly if they have client meetings.
This summer has seen a growing trend in the UK to move away from strict dress codes. The Trade Union Congress (TUC) has urged employers to relax dress codes, if only temporarily, during warmer weather, particularly giving relief to office male workers who often have to wear a suit, tie, and shirt. A growing number of companies are continuing on with this trend as many see strict dress codes as being outdated and are unable to justify not having a more relaxed dress code for certain sectors.
Fast-growing technology companies such as Google, Facebook, and Amazon, have long adapted to the expectation of a more relaxed generation of workers and are now synonymous with casual dress codes.
JP Morgan adopted a “business casual” dress code last year and although London bankers were initially wary of the change, reports now say that most people are embracing it and workers are rarely seen in a suit and tie unless they are at a client meeting.
If you do wish to implement a dress code policy for your business you must include the policy in your staff handbook and ensure all employees are aware of it. Whatever your policy, employees should be reminded to adhere to the highest standards of personal appearance at all times and dress in clothes that are suitable for the work situation.
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