Barnard & Webb Solicitors Blog Feed

Employment Law Changes in 2024 - Are you ready?

Tue, 19 Mar 2024 15:53:31 GMT

Employment Law Changes in 2024 - Are you ready?

As we venture further into 2024, the legal landscape governing employment continues to undergo significant shifts, shaped by societal trends, technological advancements, and evolving workplace dynamics. Whilst social media is already buzzing with discussions and analyses of many of these changes, it's crucial for employers to grasp the implications of these developments in practical terms. In this blog post, we aim to provide a comprehensive summary of the key employment law changes for 2024 that you need to be aware of, and what actions you may need to take:-

Flexible Working

The Flexible Working (Amendment) Regulations 2023, which comes into force on 6 ^th April 2024, will make the right to request flexible working a day one right for employees. From 6 ^th April, they will be able to make up to 2 applications for flexible working within a 12-month period. An employer must respond to a request within 2 months, and there is now an obligation for employers to consult prior to any refusal of a request.

Carer’s Leave

The Carer’s Leave Regulations 2024 introduce an employee’s right to 5 days unpaid statutory leave per year for unpaid carers, which can be taken in whole days, half days or blocks of time. An employee is required to give notice of leave twice the length of the time to be taken. An employer cannot reject or refuse unpaid leave for carers - however, they can postpone the leave to a later date if certain conditions are met. This will also come into force on 6 ^th April 2024. This is likely to necessitate employers introducing a new policy entirely. Whilst the legislation provides for unpaid leave only, employers may wish to consider if they will be offering any enhanced company pay for this new leave entitlement.

Mandatory Duty to Take Reasonable Steps to Prevent Sexual Harassment

The Worker Protection (Amendment of Equality Act 2010) Act 2023 will introduce a duty on employers to take reasonable steps to prevent sexual harassment of their employee. Where an employer is found to have breached this duty, Employment Tribunals have the power to uplift compensation by up to 25%. This legislation is expected to come into force in October 2024.

Protection From Redundancy (Pregnancy & Family Leave) Act 2023

Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 will come into force on 6 ^th April, extending redundancy protection to 18 months for parents following the birth or placement of a child. This will potentially increase the pool of employees that should have priority for alternative vacant positions in a redundancy or restructure situation.

Paternity Leave

The Paternity Leave (Amendment) Regulations 2024 will be effective from 6 ^th April 2024. The amendments allow paternity leave to be taken as two non-consecutive blocks of one week, rather than only one block of either one or two weeks. This can be taken at any point during the first year after the birth or adoption of the child and there are now shorter notice provisions for this leave.

Right to Request a More Predictable Contract

If you have any workers on variable hours, The Workers (Predictable Terms & Conditions) Act 2023 will grant them the right to request more predictable terms and conditions. They can make up to 2 applications in a 12-month period, however, requests can be rejected on statutory grounds. This is expected to come into force in September 2024.

Holiday Accrual & Pay

There are various changes to holiday pay / accrual:-

It has already been established from recent case law that holiday pay should be based on an employee’s “normal remuneration” - which has been held to include regular overtime pay, commission…etc. However, from 1 ^st January 2024 this principle has now been incorporated within the legislation itself.

From 1 ^st April 2024 calculating holiday accrual for irregular hours / part-year workers will become much simpler. It can now be based on 12.07% of the hours worked in the previous pay period.

For leave years starting after 1 ^st April 2024, rolled up holiday pay will also be permitted for irregular hours / part-year workers.

Transfer of Undertakings (Protection of Employment) Regulations (TUPE)

From 1 ^st July 2024, employers with fewer than 50 employees will be able to consult regarding proposed TUPE transfers directly with employees where no existing employee representatives are in place.

National Minimum Wage

As of 1 ^st April 2024, the NMW will increase to:-

• 21 and over: £11.44 (from £10.42).

• 18 to 20: £8.60 (from £7.49).

• Under 18: £6.40 (from £5.28).

• Apprentice (16-18 as well as those over 19 in first year): £6.40 (from £5.28).

Next steps for Employers

In light of these upcoming changes, employers should:-

make sure that managers are aware of the changes and that they are trained accordingly;
ensure existing policies and procedures are updated, where relevant, to ensure ongoing compliance;
implement new policies where appropriate (ie. for Carer's Leave);
update contracts of employment, where required.
ensure employees are kept in the loop.

For any further advice on the contents of this blog, or for assistance with updating your contracts and policies / procedures, please feel free to contact us on 01442 773460 or by e-mail: info@barnardwebb.co.uk

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this blog was published. Readers should not act on the basis of the information included without first taking appropriate professional advice on their own particular circumstances.

Top Tips for Getting an Apprenticeship!

Fri, 09 Feb 2024 19:04:40 GMT

To celebrate National Apprenticeship Week 2024, our Apprentice, Molly Michael, shares her top tips for landing that dream apprenticeship......

To celebrate my first National Apprenticeship Week I will be giving you some insight into my journey to becoming an apprentice and my ‘top tips’ for how I secured my apprenticeship, so you can too!

So, what are the types of legal apprenticeships available in the UK?

- Paralegal Apprenticeship: Advanced Level 3 qualification that takes 2 years to complete.

- Chartered Legal Executive Apprenticeship: Higher Level 4/5 qualification that takes 60 months to complete.

- Solicitor Apprenticeship: Degree Level 6/7 qualification that takes 6 years to complete.

1. First things first, get researching.

During my sixth form experience, going to university was still heavily emphasised as the 'done thing' after finishing your A-levels. I knew I wanted to study Law, but also knew that university wasn't the path I wanted to follow. Unfortunately, there are still stereotypes that an apprenticeship is the 'easy route' and not as effective as going to university. Subsequently, I had very little support at school with trying to find a legal apprenticeship, at no fault of their own, but the education system surrounding apprenticeships in law was only just emerging.

So, I took matters into my own hands and spent countless hours in free periods and after school researching law firms and what kind of apprenticeships are available in the legal field.

I found that looking on LinkedIn for apprentice roles was key in my journey, as this was where I found my role at Barnard & Webb Solicitors! In addition, I study with BPP University and they have a super helpful tool which lists all of their apprenticeship vacancies. You can sort this by employer, location and sector so it is great at finding a role that suits you! Finally of course, the government website is also a fantastic way to learn about new job opportunities at a variety of firms across the UK.

But remember, apprenticeships are not just for school-leavers. Individuals of all ages and backgrounds are encouraged to apply!

2. Stand out from the rest

No matter what your background is, you can find ways to use your life experiences in applications. Whether this be:

- Recognition / an award you won at school

- An extra-curricular activity or competition you are passionate about

- A job that has taught you transferable skills that are essential in a workplace

When I was in Year 12, I looked at my own CV and felt it didn’t reflect the drive and determination I had as a hardworking student trying to get into the world of law. So, throughout sixth form I attended various law workshops and online courses to help bolster my CV. These are also great to draw on while answering questions in online applications. However, after being hit with a round of rejections, I went a step further and secured a job in a regional law firm.

If there is one piece of advice I could give to prospective legal apprentices, particularly if you are a school-leaver, it would be to take as much time as you need to build your applications.

Get as much experience as possible, learn how a law firm works and how your role is important to the business. Surround yourself with professionals, leverage their knowledge and build your network. Many employers looking to hire an apprentice like to see applicants have real world experiences of working in an office setting, especially in a law firm.

This was the most influential part of my application process, having seen the difference myself from getting multiple rejections in Year 13, to having the same firms invite me to assessment centres a year later - all because of the value added to my applications from that year of experience. It is key to remember that the journey to becoming a lawyer is a marathon NOT a sprint.

3. Be Resilient

Some firms have lengthy application processes, in order for them to really get to know you as a candidate and whether you would be a good fit for the company. This also allows you the opportunity to see if the company is a good fit for you - the whole application process should be a 'two way street'. However, as a result of this the process can consist of:

- an initial application

- various rounds of interviews

- written or verbal assessments

- critical thinking examinations such as the Watson Glaser test

- assessment centres.

The hard truth about the application process, particularly for legal apprenticeships, is that you are likely to get a rejection at some point along the way. This can be a difficult pill to swallow especially after all your hard work and time spent on various stages of the application.

My best advice, having accumulated several rejections over the course of two years, is to never give up and don't lose sight of why you want an apprenticeship in law. Whether you receive a rejection of your initial application form, or you make it all the way to a final stage assessment centre and don't get the role - stay resilient and remember the first apprenticeship you apply to may not be the one best suited for you!

In conclusion, do your research, tailor your applications to stand out from the crowd and stay resilient through the process – hopefully you will be in good stead to secure an apprenticeship!

Molly Michael

Paralegal Apprentice

Summer 2022: Latest developments in employment law

jacqueline@barnardwebb.co.uk — Fri, 12 Aug 2022 15:31:20 GMT

Summer holidays, ice creams, mojitos (my personal favourite), let's face it there are many reasons for losing track of employment law right now. However, do not fear, we have prepared a quick blog of summer 2022 latest developments in employment law. No doubt you will have it read before your ice cube has melted.

Certifying Sick Notes

There is no longer a requirement for fit notes to be signed in ink. Further, from 1st July 2022, nurses, occupational therapists, pharmacists and physiotherapists can sign fit notes for the purposes of statutory sick pay.

Employment Bill – Has this been scrapped?

Many experts in employment law (ourselves included) predicted the implementation of the long awaited Employment Bill in 2022. The Employment Bill was said to include such matters as carers leave, neonatal leave and pay and non-disclosure agreements. It was somewhat surprising, therefore, when it was noticeably absent from the Queens Speech in May which typically sets the agenda for the year ahead. Whilst there are no signs that the Employment Bill has been scrapped in its entirety, it is unlikely to come into effect anytime soon.

Trade Union/Strikes

In response to the summer of industrial action that has taken place in 2022, the government intends to change the law around industrial action (supposedly with a view to preventing employers being held to ransom).

On the 21 ^st July 2022, the maximum damages that a Tribunal/Court can award against a trade union where strike action has found to be unlawful, was increased from £250,000 to £1m. However, the award will depend upon the size of the union.

Now the government has introduced new legislation to allow employers to hire agency staff to provide cover during strikes.

Employment Status (Taylor Review)

On 26 July 2022, the government published its response to the consultation on employment status. Although the vast majority of people that responded to the consultation agreed that there are issues with the current employment status system, there was little consensus on what action the government should take to address the concerns.

The government therefore decided not to implement any legislative changes, but has published new non-statutory guidance designed to improve clarity around employment status. It also decided not to proceed with aligning the tests for determining tax and employment status.

The government is now considering the development of an online tool, similar to HMRC’s Employment Status Indicator to provide individuals with an indication of their employment status.

Menopause

On 23 July 2021, the House of Commons Women and Equalities Committee launched an inquiry into existing discrimination legislation and workplace practices around the menopause.

Views were sought on whether further legislation is required to enable employers to put in place a workplace menopause policy to protect people going through the menopause while at work to address gender equality.

On 28 July 2022, the Committee published its report, Menopause and the workplace. The report calls on the government to appoint a Menopause Ambassador to champion good practice, produce model menopause policies and trial specific menopause leave with a large public sector employer in addition to making menopause a protected characteristic (to make it against the law to discriminate on the grounds of menopause).

Apprentices

On 28 July 2021, the government published a National Disability Strategy setting out various steps that it will take to remove barriers faced by disabled people in all aspects of their lives and provide further support to disabled apprentices. This will include investigating the barriers faced by disabled people in undertaking apprenticeships and how to address them.

For more information, please feel free to contact us on 01442 531021 or by email: info@barnardwebb.co.uk .

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changes since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

Is it too hot to work?

peggy@barnardwebb.co.uk — Mon, 11 Jul 2022 11:32:34 GMT

With temperatures set to hit a sweltering 33c this week, I think we can all agree that working in a sweaty office with no air-conditioning is totally unbearable. But what are the legalities when it comes to maximum working temperatures?

What is the legal maximum working temperature?

Unfortunately, it is a myth that there is a specific law setting a maximum working temperature. There is no such law dictating when it is too hot to work.

In offices, or similar working environments, the temperature must just be reasonable – which can obviously be somewhat arguable! What is reasonable depends on the nature of the workplace and may be different for an office compared to a cold store or workshop. There are also other factors to consider which can be more significant than air temperature, for example humidity, air velocity and radiant temperature.

What are employer’s obligations when it comes to extreme working temperatures?

Employers should undertake risk assessments and must comply with health and safety legislation, which includes:

Keeping the temperature at a comfortable level;
Providing clean and fresh air.

Our practical advice for employers to ensure their staff stay as cool and comfortable as possible is as follows:-

Allow staff to take regular breaks;
Consider allowing staff to work from home if the office is too hot;
Relax any workplace dress code if necessary, to ensure staff can wear comfortable light-weight clothing;
Provide fans or portable air conditioning units if there are no centralised systems;
Ensure staff have access to drinking water;
Consider flexible working hours, ie. starting work earlier when it is cooler and finishing before it gets too hot;
Keep window blinds down;
Get them an ice-cream!

What can employees do if they are finding the workplace temperature uncomfortable?

If employees are finding the working conditions unbearable due to high temperatures, they should first discuss their concerns with their line manager informally. If this does not resolve the issue, then they may wish to consider raising a formal grievance.

We would always advise employees against simply walking out, as this could be considered an act of misconduct.

For any further advice on the contents of this blog, please feel free to contact us on 01442 531021 or by e-mail: info@barnardwebb.co.uk .

The contents of this blog are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should take appropriate professional advice upon their own particular circumstances before acting on the basis of the information included in this blog.

Understanding Pregnancy & Maternity Discrimination

jacqueline@barnardwebb.co.uk — Fri, 08 Jul 2022 12:56:32 GMT

Pregnancy and maternity discrimination was the fifth most common discrimination claim in 2020/21. The content of such claims include (but are not limited to)

sham redundancies;
offensive comments to pregnant employees;
failure to implement flexible working options; and
being overlooked for promotion.

Businesses need to ensure they understand their legal obligations and the reasons why it is imperative women are supported by the business when they are pregnant, on maternity leave, or when they return to work.

Employees need to understand their rights and entitlements so they can take action if discrimination occurs.

We set out below some helpful guidance relating to pregnancy and maternity discrimination in the workplace.

When can pregnancy and maternity discrimination occur?

Pregnancy and maternity discrimination occurs where an employer treats a woman unfavourably:

because of her pregnancy or because of an illness suffered by her as a result of her pregnancy (during the protected period – see below).
because she is on compulsory maternity leave.
because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.

What is the Protected Period?

Under the Equality Act 2010 (EqA 10), the protected period is the period which starts when a woman’s pregnancy begins and ends.

If the woman has the right to ordinary and additional maternity leave, the protected period will be at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy.

If the woman does not have that right, the protected period ends at the period of two weeks beginning with the end of the pregnancy.

Who is protected from pregnancy and maternity discrimination?

A broad range of individuals are protected within the field of employment or occupation and vocational training. This includes employees, self-employed contractors, agency workers, partners and barristers.

This means that although the right to statutory maternity leave only applies to employees, a wider class of individuals will benefit from the right not to suffer discrimination because of pregnancy or maternity.

Is it possible for employers to dismiss employees who are pregnant or on maternity leave?

As long as employers have valid reasons, follow thorough and fair procedures then it is potentially possible to dismiss employees who are pregnant or on maternity leave. However, we would strongly advise employers to seek appropriate legal advice prior to taking any such steps.

Be mindful when dismissing an employee who is pregnant or on maternity leave that there are also separate statutory rules in the Employment Rights Act 1996 (ERA 96) protecting employees from dismissal and detriment (except in relation to pay) where the principal reason is related to pregnancy or maternity leave. Dismissals for reasons connected with pregnancy, childbirth, or statutory maternity pay are automatically unfair under s99 ERA 1996 and employees bringing such claims do not need to have worked for the 2 year qualifying period required by “ordinary” unfair dismissal claims.

When does an employer discriminate on the grounds of pregnancy or maternity leave?

It is unlawful for an employer to:

discriminate by treating a woman unfavourably during the protected period because of her pregnancy or because of an illness she has suffered as a result of her pregnancy; or

discriminate by treating a woman unfavourably because she is on compulsory maternity leave or because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary (26 weeks) or additional (52 weeks) maternity leave; or

victimise a job applicant or employee because they have made or intend to make a pregnancy and maternity discrimination complaint, or because they have done or intend to do other things in connection with the EqA 10.

If one employee discriminates against another, the employer will be liable unless it has taken reasonable steps to prevent such conduct from taking place. The offending employee may also be liable.

If a job applicant or employee succeeds in a claim for pregnancy and maternity discrimination, an employment tribunal will generally award compensation (including a sum for injury to feelings). Whilst case law has helped to benchmark awards for injury to feelings, there is no compensation cap on such awards so the cost of discriminating an employee or job applicant could be high.

Can pregnancy discrimination ever be justified?

No ; since pregnancy is a uniquely female condition, any adverse treatment of a women on the grounds of pregnancy is direct discrimination on the grounds of her gender. Such treatment can never be justified.

For more information, please feel free to contact us on 01442 531021 or by email: info@barnardwebb.co.uk .

What is Wrongful Dismissal?

jacqueline@barnardwebb.co.uk — Wed, 22 Jun 2022 16:52:43 GMT

Common questions for employment lawyers are; "what is wrongful dismissal?" and "what is the difference between wrongful and unfair dismissal?". We give you the answers below.

What is wrongful dismissal?

Wrongful dismissal is a dismissal that is in breach of an employee’s contract. Some examples of breach of contract that are involved in wrongful dismissal claims are:

Breach of notice, whether:

o expressed (such as not letting an employee serve their full contractual notice); or

o implied (such as the implied term to provide an employee with a minimum statutory notice period).

Termination of a fixed-term contract before it has expired.

Breach of a contractual disciplinary or redundancy procedure.

What is the difference between wrongful and unfair dismissal?

Wrongful dismissal is a contractual right ; one that is set out in the contract of employment.

Unfair dismissal is a statutory right; under the Employment Right Act 1996.

The key difference therefore between wrongful and unfair dismissal is that wrongful dismissal is a breach of contract law by the employer, not statutory law. Whereas, an unfair dismissal claim arises if the employee has been dismissed and their employer does not have a potential fair reason for justifying the dismissal under section 98 of the Employment Rights Act 1996.

Can an employee claim wrongful dismissal if they have worked for a short period of time?

There is no requirement for an employee to have a set period of continuous service to pursue a wrongful dismissal claim. A wrongful dismissal claim is a day 1 right.

Is there a time limit for raising a claim for wrongful dismissal?

Wrongful dismissal claims must be brought at an employment tribunal within three months (less a day) from the date of the employee’s termination. However, an employee who is out of time to pursue a claim in the employment tribunal could still pursue a civil action as, in the civil court, an extended six-year limitation period applies.

How much compensation can be claimed for Wrongful Dismissal?

If an employer wrongfully dismisses their employee, they will be liable to pay damages to put them back in the position they would have been in had the contract been terminated fairly in accordance with its terms.

Therefore, damages will reflect the net value of wages and any other contractual benefits to which the employee would have been entitled had they been allowed to work out their notice.

The damages recoverable in an employment tribunal for wrongful dismissal is capped at a statutory maximum of £25,000.

However, if the value of the employee’s claim is worth more, there is no such cap in the civil courts and they could pursue their claim there.

How can Wrongful Dismissal claims be avoided?

It is prudent to have a comprehensive employment contract and disciplinary policy which details termination provisions and to ensure that they are followed upon termination of employment.

For more information, please feel free to contact us on 01442 531021 or by email: info@barnardwebb.co.uk .

Disability Discrimination - key facts for the workplace

jacqueline@barnardwebb.co.uk — Wed, 08 Jun 2022 13:48:03 GMT

Recent statistics published by Scope UK – the disability equality charity - indicate there are an estimated 4.4 million people with a disability in employment.

The TUC published survey results in June 2021, which showed that nearly one in three disabled workers say that they’ve been treated unfairly at work in the previous two years.

Below we set out the key facts that both an employer and employee should know about disability discrimination in the workplace.

When can disability discrimination occur?

When an employee is treated less favourably or put at a disadvantage for a reason that relates to their disability.

Who is a disabled person?

Under the Equality Act 2010 a disability is defined as a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on an person’s ability to do normal daily activities

‘substantial’ is more than minor or trivial, e.g. it takes much longer than it usually would to complete a daily task like getting dressed.
‘long-term’ means 12 months or more.

Whilst some physical disabilities may be recognisable, employers have to be careful with what are known as hidden disabilities, which may not be visible at a glance, but can have a major impact on people's lives.

Deciding whether an employee, worker or job applicant is covered by the definition of disability under the Equality Act 2010 can be complex and time-consuming, so we recommend taking advice.

Are there examples of hidden disabilities?

Some examples of hidden disabilities include:

Autism
Depression, ADHD, Bipolar Disorder, Schizophrenia, and other mental health conditions
Diabetes
Brain injuries
Chron’s Disease
Rheumatoid Arthritis
Visual and auditory disabilities (These may be invisible if someone wears contact lenses and a hearing aid, for example).

Who might raise a complaint for disability discrimination in the workplace?

A complaint may come from:

An employee, worker or job applicant about something they have experienced.
An employee, worker or job applicant who has witnessed unacceptable behaviour or treatment.
A trade union or employee representative on behalf of the employee, worker or job applicant.

How can an employer discriminate an employee because of their disability?

An employer could discriminate against an employee for disability discrimination in the following ways:

· Direct discrimination – where a person is treated less favourably because of their disability, e.g., a job applicant is turned down because they have depression as the employer assumed that they will need to take a lot of time off work.

· Indirect discrimination – where an employer has a provision, criterion or practice (PCP) that has a greater adverse impact on disabled people compared to people who are not disabled, e.g., implementing night working which may adversely impact on a person who suffers from epilepsy and needs regular sleep patterns.

· Harassment – where an employee is subjected to unwanted conduct related to their disability that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

· Victimisation – where an employee makes or supports a complaint about disability discrimination and is treated unfairly.

· Failure to make Reasonable Adjustments – employers should make reasonable adjustments to accommodate the needs of a disabled person. There is no definition of what is ‘reasonable’. It depends on the job, workplace and disability. As this can be a complex area we recommend seeking advice.

What should an employee do if they have suffered disability discrimination?

The employee should have a discussion with their employer telling them about the incident(s). If the problem is not resolved then the employee can raise a formal grievance under their employers grievance procedure policy.

If that does not work, the employee could either enter into settlement talks or take action legal action (we would recommend taking advice beforehand).

What can an employer do to support an employee who believes that have been affected?

An employer should try to ensure that:

reporting disability discrimination is as easy as possible
the person raising a complaint feels safe and protected
anyone accused is treated in an impartial and fair way
they talk to anyone affected and allow reasonable time
they make any reasonable adjustments during this process

Can disability discrimination be justified?

Disability Discrimination can potentially be justified, if the discrimination is "a proportionate means of achieving a legitimate aim”.

For example in the case of Dytkowski v Brand 2019 an employment tribunal found that the dismissal of Mr Dytkowski, who had insulin-dependent diabetes, for gross misconduct following an aggressive outburst was discrimination arising from disability. The tribunal accepted that his employer's aim of ensuring a safe and appropriate working environment for its employees was legitimate. However, it held that dismissal was not justified, and a final written warning would have been a more proportionate response.

What are the time limits for making a claim for disability discrimination?

An employee, worker or job applicant has 3 months, minus one day, from the date that the discrimination occurs to make a claim to the employment tribunal.

If there is more than one separate incident, each will have a separate deadline.

If there is a series of several linked continuing incidents, or a continuing act, the time limit begins on the date of the last incident. If the last incident is not found to be discrimination, the deadline may have been missed for the previous incident that was discrimination.

If the incidents are too far apart they may not be classed as continuing acts and the deadline may be missed for previous incidents.

The safest option is to make a claim within 3 months, minus one day, of the earliest incident. Once again, this can be a complex area so we would recommend seeking advice.

For more information, please feel free to contact us on 01442 531021 or by email: info@barnardwebb.co.uk .

Age Discrimination - when can it occur & can it be justified?

jacqueline@barnardwebb.co.uk — Fri, 20 May 2022 09:47:30 GMT

The UK abolished its ‘default’ retirement age in 2011, leaving workers free to retire at any time. Reports last year confirmed that employment tribunals have seen a 74% increase in age discrimination claims. So when can age discrimination occur and can it ever be justified?

When can age discrimination occur?

Age discrimination can occur if somebody is treated less favourably because of their age or because they belong to a particular age group. Age discrimination is unlawful, unless it can be justified.

What law governs age discrimination?

The Equality Act 2010 makes it unlawful to discriminate against employees, job applicants and other workers such as agency workers and contractors.

How can an employer discriminate an employee because of age?

There are four ways in which an employer could discriminate an employee for age discrimination:

Direct discrimination; where an employee is treated less favourably because of age without objective justification. For example, telling an employee that they are too old to apply for a promotion;

Indirect discrimination; where an employer has a provision, criterion or practice (PCP) that has a greater adverse impact on workers in one age group compared to another and the employer cannot show that the PCP is objectively justified. For example, an employer requires applicants for a management role to have at least ten years' industry experience. This would disadvantage younger people who have not had the opportunity to work for that long. The requirement would be indirectly discriminatory if it could not be justified.

Harassment; where an employee is subjected to unwanted conduct related to age that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. This is not always intentional bullying. It could be using a nickname like ‘old timer’ which is perceived as ‘banter’ and has no malicious intent but is nevertheless upsetting to the recipient employee.

Victimisation; where an employee makes or supports a complaint about age discrimination and is treated unfairly.

Can age discrimination be justified?

Both direct and indirect age discrimination can potentially be objectively justified, if the discrimination is "a proportionate means of achieving a legitimate aim”. By way of example in the case of Seldon v Clarkson Wright and Jakes (a partnership) [2012] IRLR 590 , the Supreme Court held that a law firm had identified legitimate aims (staff retention, workforce planning and dignity) which could potentially justify its compulsory retirement of a partner at the age of 65.

What should an employer do to avoid age discrimination in recruitment?

Employers should carefully consider the language they use in job advertisements, job descriptions, person specifications, interview questions and publicity materials. It is best to avoid advertisements that set a preferred age range or use language such as ‘mature’, ‘youthful’ or ‘recent graduate’ which may impact adversely on certain age groups. It is preferable to describe the level and kind of experience needed for the job, although specifying an age range might be permissible if it is a genuine occupational requirement. For example, an upper age limit of 30 for recruitment as a firefighter was held to be lawful as an occupational requirement in the case of Wolf v Stadt Frankfurt am Main [2010] IRLR 244 (ECJ) because few people over 45 had the necessary physical capabilities and it was necessary for firefighters to spend a sufficient period in the role before transferring to less demanding work.

What should an employer do to avoid age discrimination in redundancy?

Redundancy selection should not be based directly or indirectly on age unless objectively justified in each case. Statutory redundancy payments however can be and are calculated by reference to age and length of service. If an employer has a redundancy pay scheme that is more generous than the statutory scheme it should closely mirror the statutory age bands and multipliers. Redundancy schemes that do not follow this requirement are likely to be unlawful unless they can be objectively justified.

Can an employer retire an employee or is this age discrimination?

The compulsory retirement of a worker once they reach a particular age is, in principle, directly discriminatory on the grounds of age unless it can be objectively justified.

For more information, please feel free to contact us on 01442 531021 or by email: info@barnardwebb.co.uk .

Employment contracts - are they necessary?

jacqueline@barnardwebb.co.uk — Wed, 30 Mar 2022 12:50:32 GMT

Hiring a new member of staff is an exciting time for an employer. A prudent employer will make sure that they avoid any future misunderstandings or disagreements regarding employment terms with their latest recruit by providing details of their main conditions of employment.

Employees want to start on the right foot and to know what is expected of them and providing detail of their main terms and conditions of employment, enables this to happen.

Is an ‘employment contract’ necessary?

An employer must give employees a document stating the main conditions of employment when they start work. This is known as a ‘written statement of employment particulars’ or a ‘section 1 statement’.

This does not necessarily have to be an ‘employment contract’ but a good employment contract will clarify the conditions, rights, responsibilities, and duties of the employee whilst they are employed and is therefore highly recommended.

Are employees entitled to an employment contract on the first day of employment?

From 6 April 2020 employers need to provide a written statement of particulars to all workers (and not just employees). The statement needs to be included in one document (which could be a section 1 statement or an employment contract) and needs to be provided to workers from the day they start employment.

What should an employment contract include?

A section 1 statement or an employment contract should include:

· the employer’s name

· the employee or worker’s name

· the start date

· the date that ‘continuous employment’ (working for the same employer without a significant break) started

· job title, or a brief description of the job

· the employer’s address

· the places or addresses where the employee or worker will work

· pay, including how often and when

· working hours, including which days the employee or worker must work and if and how their hours/days change

· holiday and holiday pay, including an explanation of how its calculated if the employee or worker leaves

· the amount of sick leave and pay

· any other paid leave (e.g., statutory maternity, paternity, adoption leave)

· any other benefits, including non-contractual benefits such as childcare vouchers or company car schemes

· the notice period

· how long the job is expected to last (if temporary or fixed term)

· any probation period

· if the employee will work abroad, and any terms that apply

· training that must be completed by the employee or worker, including training the employer does not pay for.

Other recommended clauses for employment contracts

The following additional clauses are also recommended:

· confidentiality

· company property

· data protection

· post termination obligations (e.g., restrictive covenants)

· social media

· disciplinary & grievance

Can an employment contract be breached?

It is essential for employers to have a comprehensive employment contract to avoid acting in breach of contract. For example, if an employer places an employee on garden leave but there is no contractual term giving them that right, then they will be acting unlawfully by asking them to remain at home following their resignation.

Alternatively, an employer may want a resigning employee to leave with immediate effect but will be acting unlawfully unless the employment contract contains a clause relating to pay in lieu of notice (PILON).

Whether you are an employer or an employee the team at Barnard & Webb can help you with your employment contract.

For more information, please feel free to contact us on 01442 531021 or by email: info@barnardwebb.co.uk .

Zero hour Contracts - what are the rules?

jacqueline@barnardwebb.co.uk — Tue, 22 Mar 2022 09:53:03 GMT

Calls to ban zero hours contracts have been renewed after research found a third of workers are given less than a week’s notice of their shifts.

Trade unions criticise the increased use of zero hours contracts as a means of abusing vulnerable, low-income workers, providing no job security, rights or guaranteed income.

On the other hand, businesses like the flexibility that zero hours contracts can bring to the job market. In times of economic instability, the zero hours contract has allowed businesses to offer jobs on flexible terms which suit many individuals as well as the business.

ONS statistics on Zero Hour Contracts

The Office for National Statistics (ONS) collects statistics on zero hour contracts and provided the following information about the types of people working on a zero hours contract:

The majority are women (54.7% compared with 46.8% of those not working on a zero hours contract).

They are more likely to be at the youngest end of the age range (36.0% of people are aged 16 to 24 compared with 11.4% of people not working on a zero hours contract).

A large proportion are part-time workers (66.0% compared with 25.3% of those not working on a zero hours contract).

Analysis by the TUC of the Labour Force Survey results released by the ONS on 15 February 2022 revealed that a higher proportion of black and ethnic minority workers are engaged on zero hours workers than white workers and repeats its call for zero hours contracts to be banned.

So, what is a Zero hours contract and what are the parties obligations when entering into one?

What is a "zero hours contract"?

"Zero hours contract" is not a legal term. A zero hours contract is one type of contract between a business and a casual worker where the worker is engaged on an ad hoc basis with no guarantee of work from the business.

What are the rules when entering into a zero hour contract?

A zero hours contract means that the employer does not have to give the worker any minimum working hours and the worker does not have to take any work offered.

Is the individual named in the Zero Hours Contract always a ‘worker’?

As employees are entitled to greater statutory rights and protections compared to workers it is necessary to establish the employment status of an individual working under a zero hours contract.

Usually, an individual working under a zero hours contract is considered to be a worker, and most businesses operate on that basis.

Some businesses, however, use them on the basis that they are engaging self-employed contractors. However, this sometimes doesn't reflect the reality of the working relationship between the parties.

Provided they are either workers or employees, those working under zero hours contracts are entitled to the national minimum wage (NMW) and paid holiday and rest breaks under the Working Time Regulations 1998. They are also protected against discrimination.

What amount of paid holiday will a worker receive?

All workers are entitled to holiday pay. People working zero hour contracts are entitled to the same annual leave as any other employee, however it is accrued in relation to the amount of time they work.

A person who works full-time is legally entitled to annual leave of 5.6 weeks (including bank holidays). Workers on zero hour contracts accrue annual leave from the first day of work, just like a normal full-time employee.

Workers on zero hour contracts may want to keep track of their hours and make sure they get the correct amount of annual leave and holiday pay they are entitled to.

Are workers on Zero Hour Contracts entitled to rest breaks?

Yes. Workers and employees on zero hour contracts are entitled to one uninterrupted rest break for twenty minutes for every six hours they work.

Do workers on Zero Hour Contracts have the right to request a stable contract?

An independent review was carried out by Matthew Taylor and resulted in the Good Work Review. This review investigated modern ways of working, including the use of zero hours contracts. Subsequently, the government’s ‘Good Work Plan’ was released in December 2018 and confirmed that legislation will be introduced to create a new right for all workers to request a more predictable and stable contract. The worker can decide whether they wish to make a request for a fixed working pattern once they reach 26 weeks’ continuous service with the organisation.

It has not yet been confirmed when this new right will come into force.

For more information on any of the above, please feel free to contact us on 01442 531021 or by email: info@barnardwebb.co.uk .

Settlement Agreements

jacqueline@barnardwebb.co.uk — Tue, 22 Feb 2022 18:34:01 GMT

The pandemic has affected the labour market and many employees are either facing redundancy (because their employer is cost cutting or restructuring) or are being taken through a capability procedure for poor performance. When faced with such circumstances it is common for an employer to offer a Settlement Agreement. So, what is a Settlement Agreement?

What is a Settlement Agreement?

Settlement agreements, previously known as compromise agreements, are a legally binding written contract between an employer and an employee where the parties agree that the employee’s employment will end on mutually agreeable terms.

The employee agrees to waive their right to make a claim to an employment tribunal or court on matters that are covered in the settlement agreement. This is usually in exchange for financial payment, but can also be a non-monetary benefit, i.e. an agreed reference.

Reaching a Settlement Agreement

An employer or an employee can propose a settlement agreement. They are voluntary on both sides and neither party has to agree to enter into discussions about a settlement agreement. These discussions are normally conducted as part of a “protected conversation” or on a “without prejudice” basis.

Settlement agreements provide an alternative to the employer going through employment law procedures e.g., to avoid a redundancy consultation process or a capability procedure for poor performance which can be both time consuming and stressful for both parties.

Settlement Agreement Terms

For a settlement agreement to be legally binding the employee must seek independent legal advice. This advice can be provided by a solicitor or a trade union representative. The adviser must be clearly identified in the settlement agreement and their advice covered by insurance.

It is common for the employer to contribute towards legal fees.

Settlement Agreement Payments

Settlement agreements should contain a clear breakdown of the payments which the employer is making to the employee. It should state whether any of these payments are to be subject to tax and national insurance contributions or if they are to be paid free of tax.

Payments of up to £30,000 compensation can be paid without tax being deducted providing the payment is being made on a “ex gratia” basis. That means a payment that the employer has decided to make as compensation or for damages for breach of contract (not a payment that the employee is either legally or contractually entitled to).

Can a Settlement Agreement waive all employment rights?

By signing a settlement agreement employees sign away their rights to bring a claim in the employment tribunal or court against their employer for matters which include but are not limited to; unfair/constructive dismissal, redundancy payment, unlawful deductions of wages, breach of working time regulations, discrimination, breach of contract and some personal injury claims.

There are, however, some claims that cannot be waived even with a settlement agreement. They include:-

personal injury, whereby the employee is unaware of the injury at the time of signing the settlement agreement;
accrued pension rights under the pension scheme;
failure to inform and consult under TUPE legislation;
failure to inform and consult with appropriate representatives on collective redundancies.

What is a reaffirmation letter in a Settlement Agreement?

If upon signing a settlement agreement there is an extended period between the date of signature and the termination date, the employer may ask the employee to sign a reaffirmation letter. This will be signed by the employee either on or around the termination date. The letter itself asks the employee to confirm that the circumstances have not changed between the date of the initial signature and the termination date.

For more information on any of the above, please feel free to contact us on 01442 531021 or by email: info@barnardwebb.co.uk .

Constructive Dismissal - Should I stay or should I go?

peggy@barnardwebb.co.uk — Thu, 17 Feb 2022 10:18:13 GMT

I think we can all agree it has been a tough few years for employers and employees alike! With the rapid state of change we have all experienced at work due to the pandemic – furlough, redundancies, returns to work, variations to sick pay, health and safety issues, hybrid working, mental health issues, new policies and procedures…etc it is inevitable that tensions in the workplace have increased. Grievances are at an all-time high and we have seen a dramatic increase in the number of queries from employees seeking advice regarding potential constructive dismissal claims.

So, what is ‘constructive dismissal’?

Constructive dismissal occurs when an employee feels that they have no alternative but to resign because of conduct by their employer that amounts to a ‘repudiatory breach’ of the employment contract.

A ‘repudiatory breach’ of the employment contract is a severe breach of contract that essentially makes it untenable to continue with the employment relationship.

What amounts to a ‘repudiatory breach’ of contract?

A repudiatory breach of contract can take various forms:-

It does not need to be a breach of an express term of the written contract of employment, but could be a breach of the implied term of trust and confidence between employer and employe;
It can be a one-off act or a serious of smaller breaches resulting in a ‘final straw’ incident;
It can be an actual breach or an anticipated breach.

Examples may include:-

Not being paid the right amount without a good reason;
Being bullied or discriminated against;
Unreasonable changes to working patterns or duties without agreement;
Unreasonable refusal of flexible working requests;
Failure to address grievances;
Poor handling of disciplinary matters;
Excessive workload;
Intolerable working environment.

What is the difference between constructive dismissal and unfair dismissal?

Constructive dismissal occurs when an employee resigns as a result of their employer’s conduct.

Unfair dismissal occurs when the employer has dismissed the employee and either does not have a fair reason for doing or so, or has not followed a fair process.

Am I eligible to pursue a constructive dismissal claim?

You must be an employee with over two years’ continuous service to be able to pursue a constructive dismissal claim.

Are there any time limits?

You must make the claim within 3 months less one day of the date your employment ended. After this time, you will not be able to pursue a constructive dismissal claim.

You must tell ACAS first if you wish to pursue a constructive dismissal claim and you will have the option to engage in ACAS Early Conciliation to try and resolve the issue with your employer before the matter goes to the Employment Tribunal. If you do, this will extend the deadline.

Is it easy to win a constructive dismissal claim at an Employment Tribunal?

Constructive dismissal claims are notoriously difficult to win at Employment Tribunals. As such, we would always recommend that employees seek sound advice from an employment lawyer before proceeding.

How much compensation could I be awarded if I win?

Compensation for constructive dismissal is broken down into two parts:-

Basic Award – which is calculated in the same way as an individual’s statutory redundancy entitlement (based on age, salary and length of service).

Compensatory Award – this is based on the employee’s net loss of earnings and benefits from the date they resigned up to the date they secure, or are expected to secure alternative employment. It is capped at a maximum of £93,878 or 52 weeks’ gross pay (whichever is the lowest).

Employees are required to take steps to actively mitigate their losses by looking for a new job and the Employment Tribunal will expect to see evidence of this.

What to do if you think you have a constructive dismissal claim

Resigning from your job is not something to take lightly, especially when constructive dismissal claims can be so difficult to win.

You should:-

Seek early advice from an employment lawyer;

Take steps to try and resolve the matter internally first – ie. by raising a grievance.

Consider trying to reach a settlement with your employer before you resign;

Ensure that any resignation letter makes it clear that you are resigning as a result of your employer’s conduct.

For advice on constructive dismissal, please contact us at info@barnarwebb.co.uk or 01442 531021.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

2022 - National Minimum Wage & SSP

jacqueline@barnardwebb.co.uk — Wed, 02 Feb 2022 19:51:27 GMT

What is on the horizon for Statutory Sick Pay (SSP) and the National Minimum Wage (NMW) in 2022?

Rules on temporary extension to self-certification come to an end.

On 17 December 2021, the government introduced The Statutory Sick Pay (Medical Evidence) Regulations 2021. These extend the period employees can self-certify they are sick to 28 days, rather than the usual seven days. The scheme was introduced to free up GP’s time to roll out the COVID-19 booster scheme. However, the scheme ended on Wednesday 26 January 2022.

This means that an employee can now self-certify for up to 7 days or less.

SME employers can access SSP rebate scheme

The Government has temporarily reintroduced the SSP rebate scheme for COVID-19 related absences. Employers who have fewer than 250 employees can re-claim up two weeks’ SSP costs for staff who were self-isolating from Tuesday 21 December 2021.

The government will keep the duration of the SSP rebate scheme under review.

Statutory parental, bereavement and SSP payments from April 2022

The Department for Work and Pensions (DWP) has published its proposed increases to a number of statutory benefit payments. The following rates are expected to apply from April 2022:

· The weekly rate of SSP will be £99.35 (up from £96.35).

· The weekly rate of statutory maternity pay (SMP) and maternity allowance will be £156.66 (up from £151.97).

· The weekly rate of statutory paternity pay (SPP) will be £156.66 (up from £151.97).

· The weekly rate of statutory shared parental pay (ShPP) will be £156.66 (up from £151.97).

· The weekly rate of statutory adoption pay (SAP) will be £156.66 (up from £151.97).

The rates will be confirmed once an order has been made and are due to come into effect on 11 April 2022.

Changes to National Minimum Wage

Changes to the National Minimum Wage will come into force on 1st April 2022.

The new rates are:

£9.50 for employees aged over 22
£9.18 for employees aged 21-22
£6.83 for employees aged 18-20
£4.81 for employees aged 16-17 and for apprentices

This sees the biggest increase to the apprenticeship rate (11.9%), in line with the government programme to boost work-based education.

For more information on any of the above, please feel free to contact us on 01442 531021 or by email: info@barnardwebb.co.uk .

Hot employment law topics - 2022

peggy@barnardwebb.co.uk — Thu, 20 Jan 2022 21:57:16 GMT

What to expect in 2022...

2021 was a tough year for both employers and employees alike – but what we can expect in the employment law world in 2022?

With lots of new legislation expected and outcomes of consultations on a number of key issues anticipated, it could be an interesting year! We think the following are hot topics to look out for…..

Mental Health

Employee mental health and wellbeing in the workplace will continue to be a focus for employers – even more so as we (hopefully!) come out of the pandemic and more workers are required back in the workplace. The Centre for Mental Health predicts that up to 10 million people in England will need mental health support as a direct consequence of the pandemic – whether for a new or pre-existing issue.

We have already been busy this year with requests from our employer clients for bespoke mental health and wellbeing policies and requests to deliver mental health training for line managers. This trend will undoubtedly continue as the mental health and wellbeing of staff, quite rightly, continues to be high on the agenda for UK businesses.

COVID-19

Whilst there is hopefully light at the end of the tunnel when it comes to COVID-19, we suspect that the recent surge in Employment Tribunal cases concerning COVID-19 is just the tip of the iceberg. We anticipate a flurry of discrimination and unfair dismissal claims relating to vaccination policies….so watch this space!

Flexible working

Whilst the pandemic has certainly been the catalyst for change – flexible / hybrid working arrangements are undoubtedly here to stay. Studies show that employees now expect flexible working and employers are having to adapt to this in order to attract the right talent.

With 30 employers currently participating in a four-day working week trial where researchers at Cambridge University, Oxford University and Boston College will be measuring the impact it has on productivity and wellbeing– expect further headlines on this soon!

New duty to prevent sexual harassment

New legislation imposing a duty on employers to actively prevent sexual and third-party harassment in the workplace is expected. Employers will want to ensure that their staff have been adequately trained and that they have appropriate policies in place in order to demonstrate compliance with this.

Review of gender pay gap reporting regulations

The Government will review the gender pay gap regulations to see if the reporting requirements have achieved the original objectives. This needs to take place by April 2022 (which is within five years of the regulations coming into force).

Ethnicity and Disability Reporting

Outcomes of consultations concerning proposed ethnicity and disability reporting regulations are also expected.

Confidentiality and non-disclosure agreements

Confidentiality and non-disclosure agreements continue to attract widespread criticism following a number of negative headlines recently.

New legislation is expected that will restrict the use of NDA provisions in employment contracts and settlement agreements alongside a requirement for independent legal advice to be provided to individuals asked to sign an NDA.

Redundancy protection for women and new parents

New legislation is expected that will prohibit redundancy during pregnancy and maternity leave and for six months after the end of the pregnancy or maternity leave, except in specified circumstances. This will be a welcome extension to the current protections for new working mums.

Neonatal leave and pay

New legislation is also expected introducing a statutory entitlement to neonatal leave and pay for up to 12 weeks for parents of babies requiring neonatal care.

Leave for unpaid carers

The Government has promised to introduce a right for unpaid carers to take up to a week of unpaid leave per year- albeit it is not known quite when this will be.

Post-termination non-compete clauses

A recent consultation sought views on proposals to require employers to continue paying compensation to employees for the duration of a post-termination non-compete clause, requiring employers to confirm in writing to employees the exact terms of a non-compete clause before their employment commences, introducing a statutory limit on the length of non-compete clauses, or banning the use of post-termination non-compete clauses altogether. The results are awaited and likely to be published in 2022.

For any more information on any of the above, please feel free to contact us on 01442 531021 or by e-mail:- info@barnardwebb.co.uk.

Self-isolating employees & SSP

jacqueline@barnardwebb.co.uk — Mon, 17 Jan 2022 17:49:29 GMT

Due to the latest exponential surge in confirmed Covid 19 cases employers are dealing with many employees in self isolation and requests for sick pay.

In response, the government has had no choice but to make changes to Statutory Sick Pay (SSP) Regulations for employees who are self-isolating.

So, where are we now?

The following categories of people are currently entitled to SSP under the amended SSP Regulations:

1. Anyone self-isolating for the mandatory ten-day period with Covid-19 symptoms

(In England, from 17 January 2022 this can be reduced to a minimum of five days following two negative lateral flow tests taken at least 24 hours apart on days 5 and 6).

2. Anyone self-isolating after testing positive for coronavirus (ten days from the first positive lateral flow or PCR test, which can also be reduced to five days (see 1 above)).

3. Anyone self-isolating for the mandatory ten day period due to living with or being in a linked or extended household (commonly referred as “support bubble”) with someone who has symptoms or tested positive for Covid-19.

4. A clinically extremely vulnerable person who is “shielding” and has a current shielding notification letter.

(Note that shielding in England was paused from 1 April 2021 and officially ended in September 2021).

5. Anyone (unable to work from home) who has received written notification that they will be undergoing a medical procedure in hospital and have been advised to self-isolate for a period of up to 14 days before their admission.

6. Anyone who has been officially notified that they should self-isolate under the NHS Test and Trace service (because they are a close contact of someone who tested positive) and is not able to work remotely or exempt from self-isolating.

Fully vaccinated individuals do not need to self-isolate following notification by NHS Test and Trace that they have been in close contact with an individual who has tested positive for Covid-19. Under the latest guidance (14th December 2021) vaccinated close contacts are “strongly advised” to take a lateral flow test every day for seven days (or 10 days since their last contact with the person who tested positive if that is earlier).

Unvaccinated adults without a medical exemption are legally required to self-isolate for 10 days.

How much is SSP and how does an employer reclaim it?

From 4 April 2021, employees are entitled to SSP of £96.35 per week for up to 28 weeks.

If an employee is off sick or self-isolating due to Covid then an employer should start paying SSP from the first qualifying day an employee is off work (rather than the 4 days for sickness unrelated to Covid).

The government has introduced the Statutory Sick Pay Rebate Scheme. This scheme offers employers with fewer than 250 employees the option to reclaim up to two weeks’ SSP for any employee absent for Covid related reasons. The scheme applies to absence between 21 December 2021 and 24 March 2022.

How does an employer obtain evidence from an employee self-isolating (who is not ill)?

Employees who have been advised to self-isolate can obtain an online isolation note. This can be used to provide evidence of the need to self-isolate when someone has symptoms of coronavirus or has tested positive, lives with someone who has symptoms or has tested positive and is not fully vaccinated or has been told to self-isolate by NHS Test and Trace.

What if the employee is ill?

The usual process is self-certification for the first seven days of illness and a fit note from a GP for longer absences. The law has however been changed to allow self-certification for 28 days for absences which began after 10 December 2021 and end on or before 26 January 2022.

It remains to be seen if this is likely to be extended, so once again, watch this space!

Is Flexible Working the new Norm?

jacqueline@barnardwebb.co.uk — Mon, 10 Jan 2022 16:17:08 GMT

Let’s cast our minds back to pre-Covid. Do you remember when flexible working was the exception rather than the norm? Before the pandemic our employer clients dealt with a limited number of flexible working requests from employees, and our employee clients (despite being advised that they have protection against unfair treatment for making such an application), were still reluctant to do so through fear of paying the price for the request, such as denied promotion or pay increase.

However, perceptions are shifting; according to the BBC three quarters of UK workers now say that work-life balance is more important to them than it was pre-Covid, and employers are responding to this. This is why at Barnard & Webb Solicitors we have seen an increased number of enquiries from our clients regarding an employee’s legal entitlement to flexible working.

Whilst employees and employers alike are more informed post pandemic on the right to flexible working, there remains a common misconception among some that employees can only apply for flexible working if they have a child or they are a carer, but this is wrong. A request can be made for any reason. However, to be eligible to make a flexible working request employees must have worked for the same employer for at least 26 weeks. Only one request can be made in any 12 month period.

Employers must deal with flexible working requests in a ‘reasonable manner’. If an employer does not handle a request in a reasonable manner, the employee can take them to an employment tribunal. An employer can, however, refuse an application if they have a good business reason for doing so for any of the following reasons:

1. The burden of additional costs.

2. Detrimental effect on ability to meet customer demand.

3. Inability to reorganise work among existing staff.

4. Inability to recruit additional staff.

5. Detrimental impact on quality.

6. Detrimental impact on performance.

7. Insufficiency of work during the periods the employee proposes to work.

8. Planned structural changes.

On 23 September 2021, the department of Business, Energy & Industrial Strategy (BEIS) published a consultation document “Making flexible working the default”, proposing various reforms to the right for employees to request flexible working. The proposals include measures to broaden the scope of the right. The main change would be making the right a "day one" right, removing the requirement for 26 weeks' qualifying service. It is likely therefore that we will soon see a change to the law on flexible working, so watch this space!

If you need any help or advice in relation to anything contained within this blog please contact us on 01442 531021 or email at info@barnardwebb.co.uk.

Developments in employment law & changes expected in April 2018

Sun, 12 May 2019 07:15:33 GMT

There have been some significant cases in employment law recently, with further developments expected this year as several ongoing cases work their way through the appeals system. There are also increases to pay rates and new rules on tax and national insurance contributions due to come into effect in April.

Peggy Barnard employment lawyer at Barnard & Co Employment Law Solutions in Hemel Hempstead summarises some of the recent cases of note concerning the gig economy and entitlement to paid holiday and provides an overview of the expected April changes.

Gig economy

Cases affecting the rights of individuals working in the gig economy hit the headlines in 2017, as individuals described as self-employed sought to argue the right to be recognised as workers with entitlement to certain employment rights, including paid holiday. These cases were brought against both long-established businesses, such as Pimlico Plumbers, as well as newer operators including Uber. So far, most of the cases have gone in favour of the individuals, but their fortunes may change later this year when the Supreme Court is expected to rule in the Pimlico Plumbers case and the Court of Appeal decides Uber’s appeal.

The government responded to changes in the modern economy by commissioning the Taylor review of modern employment practices, which was published in the summer of 2017. The review made several recommendations, including changes to the law aimed at improving the rights of those working in the gig economy. The government’s response, published in February this year, is generally positive and has seen the launch of four consultations, one of which seeks views on how to deal with the vexed issue of employment status. As all employers have an interest in how those they work with are classified, you may wish to participate in the consultation process and can do so here: https://www.gov.uk/government/consultations/employment-status

The deadline for submissions is 11.45pm on 1 June.

Holiday pay

The right to holiday pay and worker status overlapped in the case of The Sash Window Workshop Ltd v King. Here, the European Court of Justice held that an individual who had been wrongly classed as self-employed, and who had therefore not been paid any holiday pay during the thirteen years he had worked for the company, should be able to recover that holiday pay and to carry over holiday entitlement from one year to the next and to be paid for the accrued amount.

The danger for employers in this country is that the decision in this case could pave the way for a challenge to UK law, which restricts the carrying forward of holiday entitlement and the recovery of unpaid holiday pay. The Court of Appeal is expected to consider the impact of the decision of the European Court of Justice later this year.

Still on the subject of holiday pay, it is worth mentioning that the ripple effect from another decision of the European Court a few years ago is still being felt on the calculation of holiday pay, with the Employment Appeal Tribunal ruling last year in the case of Dudley Metropolitan Borough Council v Willetts, that a local authority should include voluntary overtime, regular standby payments and call-out allowances in calculating its staff’s holiday pay where these are ‘sufficiently regular and settled’.

April 2018 changes

Employers need to be ready for the following changes, which are expected to come into effect on 1 April:

increase in the rate of statutory maternity, paternity, adoption and shared parental pay from £140.98 to £145.18 per week;

increase in the national living wage for workers aged 25 and over from £7.50 to £7.83 per hour;

increase in the national minimum wage for workers aged at least 21 but under 25 from £7.05 to £7.38 per hour;

increase in the national minimum wage for workers aged 18 but under 21 from £5.60 to £5.90 per hour;

increase in the national minimum wage for workers aged 16 or 17 from £4.05 to £4.20 per hour;

increase in the apprentice rate from £3.50 to £3.70 per hour; and

increase in the accommodation offset from £6.40 to £7.00 per day.

Preparations also need to be made for the following changes expected to come into effect on 6 April:

increase in statutory sick pay from £89.35 to £92.05 per week;

increase to lower earnings limit for national insurance contributions from £113 to £116 per week;

increase in the personal income tax allowance from £11,500 to £11,850 and the higher rate tax threshold, which rises from £45,000 to £46,350;

increase in the minimum level of employer contribution to pensions auto-enrolment schemes, which rises to two per cent; and

all payments in lieu of notice (including non-contractual payments) to be subject to tax and Class 1 national insurance contributions.

For a confidential discussion about the implications of any of these changes or any other employment law issue, please contact Peggy Barnard on 01442 531021 or e-mail:- peggy@barnardco.co.uk

Employer’s guide to self-employed status following the Supreme Court decision in Pimlico Plumbers

Sun, 12 May 2019 07:13:38 GMT

If you use self-employed contractors to deliver services for your business, then you need to familiarise yourself with the Supreme Court’s decision in the Pimlico Plumbers case.

In a stark warning to employers to get their contracts in order, and to ensure they reflect the reality of agreed working arrangements, the court ruled that a plumber who had been labelled as a self-employed contractor with no employment law rights was in fact a ‘worker’ with entitlement to a range of benefits, including paid annual leave and the right not to be discriminated against.

Peggy Barnard employment law specialist at Barnard & Co Employment Law Solutions in Hemel Hempstead explains the reasoning behind the decision and its implications for employers.

Worker status - what the court decided

To be a worker under employment legislation, the plumber needed to show that:

he was engaged by Pimlico Plumbers under a contractual arrangement;

Pimlico Plumbers could not be said to be one of his customers or clients; and

he was required to personally perform the contracted tasks.

Contractual arrangement

The contractual arrangement in this case was governed by two agreements, together with a company manual outlining procedures and a number of expected working practices.

When read together the documents were unclear and inconsistent. They were also confusing because they contained terms typically associated with an employer-employee arrangement, such as ‘wages’, ‘gross misconduct’ and ‘dismissal.’

Although the questionable terms had been crossed out and substituted with hand-written amendments which used language more akin to a self-employed arrangement, the court could not help but speculate whether their initial inclusion was indicative of the true nature of the arrangement under consideration.

Customer or client

The terms of the arrangement were such that the company was able to exercise a high degree of control over the plumber. This included being able to require him to wear a uniform, drive a branded van, carry company ID, follow control room instructions and to forgo pay if invoices were not settled on time. He also had to abide by a series of restrictive covenants if he decided to leave or was dismissed.

On this basis the company could not be viewed as a mere customer or client.

Personal service

It was clear from the way the contractual documentation had been drafted, with frequent references to ‘you’ and ‘your skills’, that the plumber was expected to perform all services himself.

While it was true that provision was made for certain tasks to be passed to someone else, the circumstances in which this could happen were tightly controlled and it was only possible for work to be passed to another Pimlico Plumbers operative.

It was also relevant that the company manual required the plumber to work five days a week for a minimum of 40 hours if there was work available, to give notice of his intention to take annual leave and not to undertake private work for a company customer.

Implications for employers

Although the court’s decision was reached on the very specific facts of this case there are some general points which are likely to be of relevance to all employers, and particularly those operating in the gig economy. These include the desirability of ensuring that:

the working arrangements of self-employed contractors are not so heavily controlled as to suggest they may in fact be a worker or employee;

provision is made for contracted work to be delegated by self-employed contractors and preferably not just to someone associated with your business unless necessary;

self-employed contractors can market their services to the world at large if they choose to do so;

agreements with self-employed contractors are clear and do not use terminology associated with an employer-employee or employer-worker relationship;

where contract documentation refers to company policies and procedures, there is nothing within these to cast doubt on an individual’s self-employed status; and

legal advice is taken promptly if a self-employed contractor seeks to question whether they may in fact be a worker or even an employee.

Conclusion

The overriding thing to take away from this decision is the need to ensure that the reality of what you expect a self-employed contractor to do reflects the working arrangements that have been agreed and which are clearly recorded in a bespoke contract drafted by a lawyer rather than via amendments made to a standard document never intended to be used for such an arrangement.

For help in dealing with your self-employed contractors, or for any other employment law matter, please contact Peggy Barnard on 01442 531021 or email peggy@barnardco.co.uk.

An employer’s guide to dealing with sexual harassment in the workplace

Sun, 12 May 2019 07:09:55 GMT

Recent headlines have shattered any illusions that sexual harassment in the workplace had become a thing of the past. The ongoing media coverage of allegations made against high-profile business figures may now lead to an increase in complaints made by others who have encountered inappropriate behaviour of a sexual nature while at work.

What is sexual harassment?

Under the Equalities Act 2010, sexual harassment is defined as unwanted conduct related to someone’s sex, or which is of a sexual nature, and which creates an intimidating, hostile, degrading, humiliating or offensive environment. It may involve colleagues looking at sexually explicit content at work, uninvited physical contact, making sexual comments or emailing sexual jokes.

Responding to concerns about sexual harassment

Employers can be liable for one employee’s sexual harassment of another employee, even where they were unaware that it was happening. Therefore, any suggestion that sexual harassment may be occurring, or has occurred in the past, needs to be taken very seriously. Do not wait for a formal grievance to be raised – even the mere mention of concerns to a manager should put you on notice of a potential problem.

The employee may feel embarrassed and worried about not being believed or the potential consequences of raising a grievance. Although the employee cannot be forced to pursue an official complaint, an employer’s failure to act could be risky: vicarious liability for any sexual harassment claims, potential further harassment of other staff, loss of talent and reputational damage are all possible consequences.

The employee should be offered support and reassurances that any concerns will be dealt with appropriately and confidentially. Many employers have a bullying and harassment policy with specific commitments on supporting employees raising allegations of harassment. You and all of your managers need to be familiar with your policy.

Consider suspending the alleged perpetrator

If the allegations are serious, consider whether the alleged perpetrator should be suspended from work. Even where the allegations are less serious, the complainant may feel uncomfortable continuing to work with the person they have raised concerns about. You may consider changing their working arrangements to minimise contact between the employees during the investigation. This needs to be done carefully to ensure neither employee feels victimised or that the outcome of the investigation has been pre-judged.

Investigating the allegations and wider issues

As with any grievance, investigate the allegations promptly. The investigator should be careful before reaching any judgments about whether the complainant is being ‘over sensitive’. As explained above, conduct may be regarded as sexual harassment where it has the purpose or effect of violating the complainant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. When determining whether the conduct complained about meets this criterion, an employment tribunal will consider the complainant’s perception, the surrounding circumstances and whether the conduct could reasonably have that effect.

Look out for any wider issues, which may need to be addressed. For example, might colleagues be turning a blind eye to inappropriate behaviour due to a perpetrator’s seniority or status as a joker or star employee?

If the allegations relate to incidences some time ago, think about and question why the complainant has felt unable to raise concerns until now. Is it possible that other employees have similar concerns as the complainant?

Avoiding and defending harassment claims

Employers may wish to be proactive and challenge the workplace culture. This is with a view to both creating an environment in which staff are more likely to come forward with concerns, as well as discouraging harassment from occurring in the first place. This might involve tightening up standards of behaviour, such as tackling bawdy banter.

Now may be the time to introduce or relaunch your bullying and harassment policy and to remind employees of your zero-tolerance approach. It is worth checking that appropriate staff training has been delivered. These steps should help create a positive working environment as well as establishing that you have taken reasonable steps to prevent workplace harassment, which can be used to defend harassment claims in the employment tribunal.

For a confidential discussionabout dealing with sexual harassment or other sensitive grievances, or indeed for employment-related issues generally, please contact Peggy Barnard on 01442 531021 or email peggy@barnardco.co.uk.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published

The snow must go on......

Tue, 01 Jan 2019 08:21:13 GMT

Whilst Britain braces for the imminent arrival of the ‘Beast from the East’ and the travel chaos that this will inevitably cause, Peggy Barnard of Barnard & Co Employment Law Solutions provides answers to common questions and top tips regarding adverse weather and employee travel disruption:-

Should employees who cannot get to work be paid?

There is no specific law that states employees should be paid if they cannot get to work due to travel disruption.

However, in some cases, employers may have contractual, collective or custom and practice arrangements for this. Contracts of employments, staff handbooks, policies and procedures should be viewed to establish the position and / or consideration given to what has happened in the past.

Ideally employers should have a clear policy which sets out what will happen in such a scenario. Employers may also wish to ensure they have clear contractual terms allowing them to make deductions from an employee’s wages in such cases.

Should employers consider paying employees who cannot get to work anyway?

This will largely depend on the size and resources of individual employers, but there are a number of commercial reasons why this may be worth considering:-

Docking pay may harm employee morale and breed resentment;

There is a risk of bad publicity associated with docking wages that employers may wish to avoid;

Some employees may be tempted to ‘pull a sickie’ in the hope of securing company sick pay if they know they will not otherwise get paid. This may lead to a breakdown in trust and confidence;

There may be resentment between colleagues who make it in to work and get paid and those who don’t.

What are the alternatives?

There are many other alternatives that employers could consider, for example:-

Homeworking and other workplaces. In many businesses, working from home will be an option. Where an employer operates from numerous sites, it may consider sending employees to a more accessible site closer to their home;

Workplace closure. Sometimes it may not be safe, practical or economical for a workplace to stay open. Consideration should be given to closing a workplace altogether. (NB. In circumstances where the employer chooses to close, the employees may still be entitled to pay – so seek advice);

Paid annual leave. The employer could request that employees take paid annual leave if they are unable to get to work (subject of course to them having sufficient holiday available).

Making up the hours. Employees who do not want to take annual leave or unpaid leave could be requested to make up lost hours.

What if the schools close due to bad weather and parents do not have other childcare provisions in place?

Employees have the right to take a reasonable amount of unpaid time off to care for dependants in an emergency.

In these circumstances an employer cannot force an employee to use up their holiday instead, and must not subject them to any detriment as a result of exercising this right.

Some employers have policies which provide for a certain period of paid time off in such circumstances.

Top tips to reduce business risk

Implement an Adverse Weather & Travel Disruption Policy detailing how you will deal with major travel disruptions and absences and what is expected from your staff.

Consider including clauses in your contracts of employment that allow you to make deductions from your employee’s wages if this is the approach you wish to take.

If the workplace cannot be run safely, consider closing.

Plan ahead. If bad weather is expected, ensure the position is monitored. Publicise your policy before any likely period of travel disruption and ensure that all staff and managers are aware of their responsibilities.

Be flexible. A more flexible approach to matters such as working hours and location may be effective if possible.

Remember your staff’s health and safely is of paramount importance. Consider allowing staff to leave early if bad weather is setting in and may make it dangerous for them to travel home.

Consider the impact of your actions on employee morale.

Ensure you deal with issues such as absences and lateness fairly and consistently.

We are offering a 50% discount on our precedent Adverse Weather & Travel Disruption Policy until 15th March 2018 (now only £50 + VAT). To take advantage of this offer, or if you require any further advice or assistance, please do not hesitate to contact us on 01442 531021 or peggy@barnardco.co.uk.