Rogers & Norton News

Employment Law Bulletin March 2016

Wednesday, March 16, 2016

Welcome

Junior doctors have barely been out of the news over the last few months. With the Government intending to impose a new contract, the situation continues to bring home just how difficult these issues can be for those caught up in them.

Alongside the legal and practical implications of forcing through change are the reputational, workplace and wider challenges that flow from disharmony between employers and employees. Ultimately, it takes a brave employer with a really good business reason and a well thought-out plan to tackle something like this. But it can be done; you just need to be prepared.    

Lay-off Reasonableness
Craig v Bob Lindfield & Son

Laying staff off can be a way of a business coping with a dip in workloads. It’s a temporary arrangement. So where a contract allows the employer to lay an employee off indefinitely and without pay, should it be implied that the period of lay-off will be no more than is reasonable?

Mr Craig had been laid off for four weeks. The employer was hopeful that things would pick up, but before that happened Mr Craig resigned and claimed constructive dismissal. The lay-off period had been too long, it was argued.

He lost. The Employment Appeal Tribunal held that reasonableness was not to be implied into the term of the contract. And, anyway, four weeks was not considered to be unreasonable.

That’s not to say that constructive dismissal will never apply in a lay-off situation. It depends on the circumstances. If an employer had certain motives for keeping workers off work – to maximise profits at the expense of employer/employee trust and confidence, for example – then there might well be a different outcome.    

Trouser-ban Lifted at BA

British Airways has ended its long-running dispute over the right of certain members of its female cabin crew to wear trousers.

According to reports, this is the culmination of two years of wrangling over whether members of BA’s ‘mixed fleet’ crew had to stick to the skirt-only rule imposed on them (subject to exemptions on religious or medical grounds).

Regional Officer at Unite, Matt Smith, is quoted as saying:

“Female cabin crew no longer have to shiver in the cold, wet and snow of wintery climates, but also can be afforded the protection of trousers at destinations where there is a risk of malaria or the Zika virus.”

Dress codes can be a thorny subject for employers; they can be imposed, but must be carefully thought out. If gender is an influencing factor then a sex discrimination claim is a real possibility. You’d need a very good business reason that justifies differences. And the key to getting dress codes right in the male/female context is to impose similar standards of dress and appearance on men and women: ‘smart dress’, for example.    

Gender Pay Gap

Draft rules on gender pay reporting have been published.

Under The Equality Act 2010 (Gender Pay Gap Information) Regulations 2016, employers with more than 250 employees will have to publish information about the payments they make to their male and female employees. There could be a naming and shaming process, and even civil and criminal sanctions, for those that don’t comply.

It’s expected that the new rules will come into force in October this year. Although the first reporting deadline isn’t until April 2018, larger employers will need to gear up for this, which will include taking a snapshot of pay as at April 2017. 

If you’re interested in offering your views, consultation on the draft regulations is open until 11th March.    

Dyslexia at Work

Two stories with dyslexia as their focus; two completely different angles.

The first was about a dyslexic member of staff at Starbucks who had mistakenly entered the wrong information into a duty roster. She was accused of falsifying the documents, was demoted and told to retrain.

She won her disability discrimination case. According to reports, Starbucks hadn’t seemed to properly understood equality issues, and it should have made reasonable adjustments to take account of the dyslexia.

Also in the news was an advert for a job that was open only to people with dyslexia. “We are simply looking for the best innovative thinkers and they are usually dyslexics”, the marketing firm’s founder is reported to have said.

Controversial, maybe, but favouring someone who has a disability isn’t prohibited by the Equality Act. And the ad is an interesting take on dyslexia; one that really shouts about its positive aspects.

Employers should take note and make sure that they can recognise the characteristics. According to the British Dyslexia Association, about one in 10 people has dyslexia, and not all have been formally diagnosed. It can mean that dyslexic employees are not properly understood, not treated fairly, and their strengths are not fully played to at work.    

Door Closed on Lock Case?
British Gas Trading v Lock

Well, not exactly. But we now have an Employment Appeal Tribunal (EAT) decision that upholds last year’s tribunal decision.

The tribunal had decided that Mr Lock’s results-based commission payments should form part of his holiday pay calculation. Leaving commission out of the equation had meant that he would earn less while on annual leave than he would if he were working – he wouldn’t be getting his ‘normal’ pay – and that wasn’t consistent with the rules on working time.

That position has now been reinforced by British Gas’ unsuccessful EAT appeal. But before you get too comfortable, there is going to be another appeal – this time to the Court of Appeal.  So there’s still a bit of ‘wait and see’.

While the current state of play is that holiday pay for workers’ four weeks’ statutory holiday must include commission, some uncertainty remains. It is a difficult area for employers to navigate until there’s firm guidance on the practicalities of calculating future holiday pay, and reimbursing staff for past underpayments.

If you are an employer that pays salaries that include variable elements, it’s certainly worth getting some advice on your existing arrangements and on your exposure to claims.

Modern Slavery

From the end of March, big companies – those with annual turnover of £36 million or more – will be required to file information on modern slavery. They’ll have to publish an annual statement that sets out what they’ve done in their last financial year to make sure that slavery and human trafficking isn’t happening (a) in any part of their business, and (b) in their supply chains.

It’s this second category that could affect smaller businesses. If you’re not in the £36m category, you could still be a player in those businesses’ supply chains – or, indeed, in their suppliers’ supply chains. You should keep information about what you’re doing to make sure that slavery and trafficking isn’t happening in your organisation. Those you supply will need this in order to comply with their legal obligations to provide modern slavery statements. And they’ll probably thank you for being on the ball.

Some employers will see this as a formality, but it’s something that needs to be taken very seriously. And remember that it’s not just the slavery issue itself that you’ll need to think about. You’ll be handling and passing on information – data – and so will need to make sure you are Data Protection Act compliant. Take time now to put some plans and systems in place and get to grips with exactly what the new rules will mean for you.     And Finally…

We had to chuckle at recruitment site, reed.co.uk’s, article on how some job candidates got things a little bit wrong.

More than 200 recruiters helped compile a list of their top interview faux pas. Lots of good ones in there, but our favourites include:

-    someone pulling out a cereal bar from their bag when things got a little too much

-    people asking their interviewers out on dates

-    the candidate who spoke only in rhyme (we all do that from time to time!).

Who’s to say that these people weren’t ideal candidates who just fell victim to the pressures of the day? Job interviews take all-sorts, and so they should. You never know, your perfect employee could be the one with the less conventional approach.