Driving for Work in Bad Weather

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Many employers have been rather slow to recognise work related driving as a major risk factor to employees. The HSE has now made it clear that employers have duties to manage the risks faced by their workers on the road. This includes not just professional drivers, but any employee who is required to travel as part of their normal job duties.

Peter Stanway, our BackupHR™ legal expert comments:

Managing this risk requires more than just compliance with road traffic legislation. Bad weather which may involve snow, winds, floods or fog, highlights the need to ensure drivers are given guidance to make employee drivers reasonably safe. While health & safety law does not apply to commuting, it is wise to make sure you have a ‘Disrupted Travel’ Weather Policy’ in place. This ensures that all employees know exactly what is expected of them.

If this seems daunting consider:

  • Are you prepared to wait for an employee to be seriously injured or even killed before you take any action?
  • The Corporate Manslaughter and Corporate Homicide Act can be used to prosecute organisations for work related driving deaths.
  • If you think safety is expensive consider the financial consequences arising from fatalities and serious work-related injuries leading to legal claims.

There is much information available on the web for drivers but very little for employers. Employers should ensure their drivers understand the risks, and, are trained and equipped to help them cope with adverse conditions.

You need to be aware that dismissing employees for refusing to drive in extreme weather conditions will be automatically unfair in circumstances where he/she reasonably believes that there is a serious and imminent danger to themselves or others, hence the need for good training, policies and risk assessment.

The best advice for driving in bad winter weather is not to drive at all, if you can avoid it. Some businesses do not have this luxury or will have drivers caught out unexpectedly by bad weather.

In addition to education, we would recommend:

  • ensuring vehicles have regular safety checks
  • joining a roadside assistance service
  • equipping vehicles with emergency supplies such as a snow scraper, flares, first aid kit, flash light, bag of sand, small shovel, blanket and booster cables
  • posting the number the employee should call in case of emergency in clear view inside the vehicle
  • providing guidance in a useful booklet in the vehicle
    >li>providing advanced driver training to employees that drive regularly, for example, more than 10,000 miles each year. This significantly reduces any employer vicarious liability should they be involved in a serious accident of their making, whilst at work.

If a Disrupted Travel Policy is not in place, you can contact BackupHR™ for help in outlining both you and your staff’s responsibility when bad weather comes.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.

Talking to many organisations it is apparent that a considerable number are not currently complying with the Data Protection Act 1998. In May, the law on data protection changes again and will be even more rigorous in how organisations acquire, process and dispose of data, particularly personal data. The Information Commissioners Office (ICO) has made it clear that the fines for breaching data protection rules are likely to significantly increase. No organisation, large or small, will be exempt.

Consequently, many organisations are now faced with a big catch up exercise that goes far beyond purely employee data. Any organisation that uses databases, in whatever capacity, will require policy statements, privacy impact risk assessments, IT security measures, audit trails and staff training in order to demonstrate compliance with the law.

We are further aware that there is a lot of scaremongering, misinformation and even over-selling about the full extent of what really needs to be in place for most organisations, especially SMEs. We are, therefore, delighted to announce that, in conjunction with a leading Data Protection expert and trainer, we are running a half day course on this subject to help you better understand the existing and new requirements, so that you can put together a meaningful action plan on activities that need to be carried out before the May 2018 deadline.

Like all our training, the course will be interactive and informative, providing you with access to a trusted Information Governance Adviser who regularly works with organisations across all sectors.

Speaker:

Iain Harrison – Information Governance & Risk Manager – Leicester City Council
Iain has gained over 15 years practical experience of Data Protection Law and practice in various environments. He manages a team tasked with providing advice and guidance, as well as conducting audits and providing training as a trusted Information Governance Advisor.

Iain will be ably supported by Cathy Norton and Peter Stanway from BackupHR

Venue and Date

Park Farm Country Hotel, Hethersett, Norwich – 12th April 2018

The course will commence at 8.30 am, with registration and refreshments from 8.00 am, and will finish around 1.45 pm, with breaks for refreshments and lunch.

Costs

The cost for this course will be £75.00 plus VAT per delegate, including lunch.

To reserve your place, please contact Jackie Bolton either by e-mail: jackie@www.backuphr.com or call 01480 677981.

The case of Ms Carolina Gomes v. Henworth Limited t/a Winkworth Estate Agents & anor. serves as a useful reminder to be careful when selecting your choice of words when talking to employees.

Ms Gomes started working for an estate agency business in 2009. In 2015 she was transferred to another franchise as an administrative assistant. In 2016 there were concerns with her work and meetings were held during which she was told to be more careful. She was aged 59 at the time she was told that she would be “better suited to a traditional estate agency”. Ms Gomes took this to mean that she was being told that she was too old to work in that office. She also felt that she was being told to leave the business. She had intended to stay with the company until she retired at 65.

Ms Gomes was not satisfied with the outcome of a grievance that she raised. She appealed and also tendered her resignation and brought an age discrimination claim at Employment Tribunal. Her claim of direct age discrimination was concluded to be well-founded, as were the claims for harassment related to age and constructive unfair dismissal. The Tribunal was satisfied that the reason for her resignation was the treatment she received. The Tribunal held the phrase “better suited to a traditional estate agency” was a reference to her age and it was unlikely that such a comment would have been made to a younger employee. Their comments and actions had the effect of violating Ms Gomes’ dignity and amounted to harassment relating to her age.

The Tribunal also found that their references to things “not working out” and for her to “sleep on it” conveyed the message that they did not want her to continue working for them. It was reasonable for her to take the view that there was a fundamental breach of the implied term of mutual trust and confidence that entitled her to resign.

Peter Stanway, our BackupHR™ legal expert comments:

This case serves as a reminder to employers of the risks of using words and phrases that could be taken to be a reference to someone’s age. Each case will of course be decided on its own facts, and this case was only at Employment Tribunal level, so is not binding on any other Tribunal, but it does show how serious the consequences of using phrases that clearly infer an intention such as in this case – we want you to leave. Claims for discrimination and harassment can also succeed on the basis of one-off statements which allude to an employee’s protected characteristic(s) e.g. age or gender, without directly referring to it.

Actions:

  • It is essential have good equal opportunities and dignity at work policies in place which prohibit discrimination in all aspects of the business.
  • You also need to ensure that everyone is fully aware of the policies and the importance of abiding by them.
  • Training management, employees and even workers in these policies, is key to ensuring that people not only understand but actually comply with the stated requirements.
  • Adequate steps need to be taken as a result of any breaches and remedial training provided to staff as is reasonably necessary.
  • Taking all reasonably practicable steps to prevent discrimination from taking place, including training, will provide an employer with a good first line of defence to Tribunal claims.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

The Harvey Weinstein scandal, and allegations at Westminster, amongst others, has once again placed the spotlight on sexual harassment reporting. Victims of sexual harassment are often reluctant to report incidents for fear of retaliation, being disbelieved or public embarrassment. Sexual harassment might be obvious, insidious, persistent or an isolated incident. It can also occur in written communication, by phone or through email, not just face-to-face. It is likely to be manifested in:

  • spreading malicious rumours, or insulting someone, unwanted physical contact
  • leering at an employee’s body
  • unwelcome remarks about a person’s age, dress, appearance, or marital status, jokes at personal expense, offensive language, gossip, slander
  • posters, calendars, graffiti, obscene gestures,
  • coercion for sexual favours

Peter Stanway, our BackupHR™ legal expert comments:

The first thing you need is some sort of an anti-bullying and harassment workplace policy, which acknowledges senior management’s commitment to tackling and eradicating sexual harassment. It should set out the type of behaviour that is prohibited, the consequences of such behaviour and the procedure for making a complaint and conducting investigations. A Dignity at Work Policy goes beyond an equal opportunities policy.

Managers must be trained to recognise what is, and is not, acceptable and how to deal with the issues in an impartial and fair way. They need to be aware that dealing with sexual harassment complaints will be emotional and personal for the parties involved, so need to be handled sensitively and non-judgementally.

Any complaints about sexual harassment need to be taken very seriously, as failure to do so can make them much worse. Complaints should be investigated promptly and in a professional manner. There is no need to require a complainant to provide “proof” prior to conducting an investigation. The purpose of the investigation is to gather information and evidence. Even if the alleged harasser is senior and credible, and the complainant is junior and emotional, you must not discount the complaint or refuse to investigate, just because the complaint seems unlikely.

It is prudent to provide support to both individuals while the investigation, and any subsequent disciplinary action is conducted. You should consider temporarily changing working arrangements for the duration of the investigation, particularly if it is against the complainant’s line manager or a close colleague. Suspension of the alleged perpetrator may be necessary. The complainant should be kept informed of the progress of the investigation and its ultimate outcome.

Employees should also receive training on bullying and harassment in the workplace so they are aware that such behaviour is not acceptable. This should include educating employees that ‘workplace banter’ is often a euphemism for bullying and harassment, if it causes offence to others. Tribunals have rejected the notion that a harassment claim can be defended on the basis that sexist remarks were “only banter”. Staff can feel humiliated or offended without it being obvious or apparent to others, and may happen in the workplace without an employer’s knowledge.

Equal Opportunities and Dignity at Work policies must have the support of senior management, and the organisation needs a culture that fully supports victims of sexual harassment. The Weinstein revelations will not go away anytime soon, so sexual harassment will continue to be a high profile issue. The sheer volume of people speaking out about the problem means that a new zero-tolerance attitude towards sexual harassment is emerging.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Despite Brexit, the UK will implement the General Data Protection Regulation (GDPR) when it comes into force on 25th May 2018. The GDPR harmonises the ‘patchwork quilt’ of 28 different EU Member States’ laws with a single, unifying data protection law.  It hugely increases penalties for non-compliance, and takes account of globalisation and the ever-changing technology landscape.

The purpose of the new Regulation is apparently twofold:

  1. To improve consumer confidence in organisations that hold and process their personal data, by reinforcing their privacy and security rights consistently across the EU; and
  2. To simplify the free flow of personal data in the EU through a coherent and consistent data protection framework across the member states.

The basic principles behind GDPR are essentially unchanged from those enacted in the UK via the Data Protection Act 1998 (DPA), but there are a number of new rights and obligations which will cause a significant rethink on how data is treated going forward.

It will apply not only to EU organisations, but to any organisation processing the personal data of individuals in the EU in relation to offering goods or services, or to monitoring their behaviour.

Significant penalties can be imposed on organisations that breach the GDPR, including fines of up to €20 million or 4% of annual worldwide turnover, whichever is greater. The current maximum fine that can be imposed by the Information Commissioner’s Office (ICO) is £500,000, so this is a significant increase. The level of fine will depend on the type of breach and any mitigating factors, but they are undoubtedly meant to penalise any disregard for the GDPR. It will also be much easier for individuals to bring private claims, with a right to claim compensation for distress and hurt feelings when no financial loss has been suffered.

The GDPR is much wider in its coverage than just employee issues, but we will focus only on such issues. Employers need to be aware of the following changes:

  • Organisations will need to implement “privacy by design and by default” into their processes and procedures. It means building data protection into all data processing activities. Doing so will lead to potential privacy issues being identified at an earlier, and less costly stage, and to an increasing awareness of privacy and data protection related matters throughout the organisation. By default means only personal data which is necessary for each specific purpose of the processing is processed. In particular, such measures need to ensure personal data is not automatically made available to third parties without the individual’s intervention.
  • There is an exemption for organisations of fewer than 250 employees, but only in respect of some of the record-keeping requirements for their data-processing activities, unless those data processing activities are high risk or regular.
  • It is intended to generate a shift from paper-based compliance to actual demonstrable compliance in practice, known as accountability. You must show not just written policies and processes, but also training and extensive records. Accountability needs to be entrenched in an organisation, requiring them to take a proactive, methodical and answerable approach toward compliance.
  • The term “personal sensitive data” is now any personal data under the GDPR which is much broader than before so, for example, a person’s email address will now be classed as personal data.

More Detailed Privacy Notices

These will need to be reviewed, as you will have to give people more information, e.g. your legal basis for processing the data, your data retention periods, if data will be transferred to other countries etc. Employers are required to provide employees and job applicants with a privacy notice setting out certain information such as:

  • Information on the right to make a subject access request free of charge (no more £10 administration charges), and the new shorter timescale of 30 days rather than 40 within which to respond.
  • The right to have personal data deleted or rectified in certain circumstances.
  • Under the new so-called “right to be forgotten”, employees will be entitled to require the employer to erase personal data about them in certain circumstances. This may be the case where the data is no longer necessary for the purpose for which they were originally collected, or where the employee has withdrawn their consent.

Restrictions on Consent

Most employers currently justify processing personal data on the basis of employee consent. This approach has been increasingly criticised because there is doubt as to whether or not consent is given freely in the subordinate employer-employee relationship.

There are more prescriptive requirements for obtaining consent under the GDPR. There will be a new requirement to specifically opt-in, so controllers will no longer be able to rely on generic or ‘bundled’ consent in the way that we have previously advised our clients. This will make it harder for employers to rely on consent to justify processing. Bear in mind that free consent implies that it may be revoked at any time. In most cases, employers will need to move to one of the other legal grounds to continue processing HR-related personal data. This could be the contractual necessity (e.g. for the processing of employee payment data), a legal obligation (e.g. for the processing of employee data in relation to social security) or the legitimate interest of the employer (e.g. in the context of employee monitoring).

New Breach Notification Requirement

The GDPR imposes a new mandatory breach reporting requirement. Where there has been a data breach (such as an accidental or unlawful loss, or disclosure of personal data), the employer will have to notify and provide certain information to the data protection authority within 72 hours. Where the breach poses a high risk to the rights and freedoms of the individuals, those individuals will also have to be notified.

Records not Notification

The current requirement for organisations to complete an annual notification registering their data processing activities with their supervising authority is replaced under the GDPR. Organisations will be required to maintain detailed internal records detailing what data processing they undertake.

Data Protection Officers

All public authorities and those private organisations involved in regular monitoring of large-scale processing of sensitive data will need to appoint a Data Protection Officer to:

  • advise on GDPR obligations; and
  • implement appropriate mechanisms: and
  • monitor compliance by verifying that these measures are in place and being followed; and
  • liaise with the Data Protection authority (ICO);

Even if a Data Protection Officer is not strictly required, it will be expected that the organisation has conducted an assessment of their risk to decide that such an appointment is not necessary, and can show the audit trail to prove that they are not large processors of personal data. The GDPR does away with focus on size of workforce, and puts the focus rather on what organisations do with personal information.

How to Prepare Now

All organisations should now be planning their compliance programme to identify how they may be affected, and what they need to do to prepare. While May 2018 still seems a long way off, you may find that in some areas the necessary steps need extensive and time-consuming preparation. Co-operation and understanding of the new GDPR obligations across the business is critical, and employers will need people from different disciplines to take a combined approach.

The most important steps to take in relation to employment include:

  • This is a boardroom issue, not a tick-box compliance task. Organisations need to change their mind-set and senior management need to lead by example.
  • The Board needs to appoint someone within their organisation to take the lead on assessing how GDPR will affect their organisation across all data processing aspects, not just employment matters.
  • Carry out a data audit. Carefully assess current HR data and related processing activities, and identify any gaps and identify high-risk areas with the GDPR.
  • Review current privacy notices and consider whether to update them sooner rather than later, to comply with the more detailed information requirements. All information provided must be easy for employees and job applicants to understand.
  • Assess the legal grounds for processing personal data. Where consent is currently relied on, check whether or not it meets GDPR requirements and remember that consent may be revoked at any time. Employers will generally need to rely on one of the other legal grounds to continue to process employee personal data.
  • Develop a data breach response programme to ensure prompt notification. Allocate responsibility to certain people to investigate and contain a breach, and make a report. Train employees to recognise and address data breaches, and put appropriate policies and procedures in place.
  • Determine whether or not a Data Protection Officer must be appointed and, if so, think about how best to recruit, train and resource one; albeit in most cases that will be an existing senior IT or Finance person.
  • Conducting a Privacy Impact Assessment (PIA) will be mandatory. Various aspects of HR activity, for example, recruitment and post-employment issues, would require a PIA to be conducted. This allows organisations to see the potential dangers with data processing activities from an early stage, and allows mechanisms to be created to mitigate this risk before it becomes a reality.
  • Review your guidance/policy so that it ensures sufficient management control of personal information accessed remotely, or via personal devices (BYOD).
  • Implement appropriate training and communication of staff at induction, annually and when changes occur.
  • The GDPR is about creating a data privacy culture where people think about how they would want their personal information to be processed.
  • Develop a timeline to implement a GDPR compliance program

Maintaining the balance between the protection of the privacy of the workers and the prerogatives of the employer can be tricky. There is likely to be a big increase in numbers of subject access requests, which will be more difficult to manage. Subject access requests will be an even more prevalent feature of litigation/disputes.

The ICO has commented that in many cases, GDPR only enhances rights and requirements that already apply under DPA, but it is working on a set of guidance on GDPR to help clarify where the balance should be.

To help understand the detail further, read the ICO initial guidance on preparing for the GDPR available at the ICO link below.

https://ico.org.uk/media/1624219/preparing-for-the-gdpr-12-steps.pdf

Then go to the below ICO link, and work your way through the questions designed to help you get ready.

https://ico.org.uk/for-organisations/data-protection-reform/getting-ready-for-the-gdpr/

Also on the ICO website, there are checklists that you can go through to self assess your organisational compliance with data processing at the below link:

https://ico.org.uk/for-organisations/resources-and-support/data-protection-self-assessment-toolkit/

We will be working on a suitable revised GDPR policy for our clients for 2018, along with some basic tools to help our clients to deal with the employment issues arising from these new regulations, but there is no need to delay reviewing your grounds for processing data, liaising with external data processors and making sure that your personnel files and systems are up to date.

 

Clients are welcome to raise concerns with their Consultant who will be pleased to advise you on any Employment/HR element of the issues arising from this newsletter.

The Pensions Regulator (TPR) is bringing the first pensions auto-enrolment prosecution over allegations that a bus company deliberately avoided enrolling staff into a workplace pension scheme. Stotts Tours (Oldham) Limited has been accused of intentionally not enrolling its 36 employees into a workplace pension. Managing Director Alan Stott has also been individually prosecuted for “consenting or conniving” in the bus company’s offence, or allowing the offence to be committed by neglect.

Peter Stanway, our BackupHR™ legal expert comments:

Auto-enrolment legislation requires employers to provide eligible workers with a qualifying pension scheme, auto-enrol them into the scheme, and make minimum levels of contributions to the workers’ pensions. The requirements have been phased in since 2012; by February 2018, all employers will be covered by the requirement to auto-enrol workers in pension schemes.

Auto-enrolment legislation is enforced by the Pensions Regulator. Its formal powers include issuing compliance notices, conducting inspections and issuing penalty fines to employers. However, TPR can also initiate criminal proceedings against employers that “wilfully fail to comply” with the legislation, as well as directors who are implicated in any failure to comply with the law.

This is the first time that the Pensions Regulator has launched a prosecution for these specific offences, but in August a solicitor and the firm where he is a partner were ordered to pay more than £16,000 in fines and costs for refusing to give them documents which were required as part of a wider investigation. Employers that wilfully fail to comply with key auto-enrolment or re-enrolment duties, or fail to enable staff to opt in to pension membership may be convicted of a crime, and subject to a fine and/or up to two years’ imprisonment.

The TPR has been cracking down on companies and individuals it says have shirked their responsibilities toward their employees’ pensions. In August, it said it would prosecute Dominic Chappell for failing to provide information and documents it requested during its investigation into the sale of BHS. It has also begun carrying out spot checks to ensure employers are complying with their automatic enrolment duties. TPR are warning employers that ignoring the penalties, which they impose could seriously damage a business’ reputation, by virtue of being named and shamed’.
The latest development is to publish details of those who have paid their Escalating Penalty Notice (EPN) but remain non-compliant. They will also publish the details of those who failed to pay their EPN, and as a result have been made subject to a court order.

Despite the publicity to raise awareness there is still a high rate of non-compliance. For various reasons, including ignorance and unwillingness to recognise reality, some employers are still not doing what they should be. TPR has no time for excuses. It said that firms which, for example, found the online system too difficult to use, made a mistake, or had a sick member of staff would not get a free pass.

TPR is using a big stick for employers who are not doing what they should be, and using all the tools at its disposal, because bad employers gain an unfair advantage over their diligent competitors. Employees of smaller employers are not getting what they are entitled to. The message from TPR is clear: If employers do not comply, they will take action.

Actions:

  • If you are not sure about your staging date, find out and take action now
  • If your staging date is still due then start to prepare now
  • Do not encourage or coerce employees to opt out of the pension scheme
  • If you have started auto-enrolment, do an audit to check it is working properly
  • Cooperate fully with the TPR if they investigate

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

In Dudley Metropolitan Borough Council v Willetts, the Employment Appeal Tribunal (EAT) held that voluntary overtime that is normally worked should be included when calculating an employee’s holiday pay.

Peter Stanway, our BackupHR™ legal expert comments:

In recent years, there have been several high-profile cases that have considered how employers should calculate statutory holiday pay for their workers and to what extent employers should take account of variable payments, such as commission and overtime. The extent to which overtime should be included has been particularly problematic, with tribunals drawing distinctions between different types of overtime.

According to EU law workers should take their full holiday entitlement; getting ‘normal remuneration’ while on paid leave, to ensure that workers are not put off taking holidays by receiving less than their normal pay during this time.

Mr Willetts, on behalf of 56 employees who worked for the Council as tradespeople, brought claims for unlawful deduction of wages. The employees were contracted to work 37 hours per week, with many having an additional right to work overtime. The employees also performed additional voluntary duties, such as working out-of-hours standby shifts, attending call-outs and working voluntary overtime, for which they received additional payments. Their earnings for this additional voluntary work could amount to around £6,000 a year on top of their basic salary.

The Employment Tribunal held that the payments were intrinsically linked to the performance of the employees’ duties and that they performed the duties with sufficient regularity for the payments to be considered ‘normal remuneration’.

The EAT dismissed the Council’s appeal. It noted that the ECJ in a previous case had set down the overarching principle that holiday pay should correspond to ‘normal remuneration’ so as not to dissuade workers from taking leave; and that the division of pay into different elements cannot affect a worker’s right in this regard. For a payment to count as ‘normal’, it must have been paid over a sufficient period of time.

The question in every case, irrespective of the label put on the payment, is whether the payment forms part of the worker’s “normal remuneration”. Voluntary overtime that satisfies this test must be included in holiday pay.

Implications

The EAT’s reasoning provides helpful guidance on when voluntary overtime should be included in the calculation of holiday pay:

  • EU law requires that “normal” (and not contractual) remuneration must be maintained in respect of the four week period of annual leave.
  • For a payment to count as “normal” it must have been paid on a regular and/or recurring basis, which is a question of fact and degree in each case.
  • Items that are not usually paid, or are exceptional, are not “normal pay”.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

In February we wrote about six cases due to be heard in the higher courts which significantly impact on the development of employment law. Five have now come to light with mixed news for employers. The rulings are in italics.

1. Employment Status
Last autumn, a London Employment Tribunal held that Uber was a taxi company, not a technology platform as it claimed, and found that its drivers had legal rights including the right to paid holiday and the minimum wage. Uber announced that they were to appeal to the Employment Appeal Tribunal and that appeal is expected this year. This was the tribunal case that everyone talked about in 2016.
In January, a different employment judge at the same employment tribunal found that a cycle courier was a worker for CitySprint, and three more cases being brought by couriers (against Excel, Addison Lee and eCourier) will be heard by the same employment judge this year.

While employment tribunals’ decisions do not bind other tribunals, those of higher courts do. The Court of Appeal recently heard another case (involving nominally self-employed individuals who work for Pimlico Plumbers) and the result of that case is likely to affect the outcome of other claims.

Ruling
The Court of Appeal in the Pimlico Plumbers case have maintained that employment or worker status is a matter for a Tribunal to determine on its facts and therefore so-called self employed people may have a different status and accrue more rights such as holiday pay. Trying to maintain that ‘dependent contractors’ are genuinely self employed is increasingly difficult so be prepared to review the business model for such people. Often the main issue is holiday pay so it would be wise to take a proactive stance on such workers.

2. Equal Pay
In what has been described as the largest ever equal pay claim against a private-sector employer, more than 9,500 Asda shop floor workers – who are predominantly female – are seeking to compare their jobs in retail stores with the jobs of colleagues who work in distribution centres, which are traditionally male dominated. In October 2016, the Manchester tribunal agreed that the shop floor staff could compare themselves to distribution workers, and now the tribunal must determine whether there is a pay difference and, if so, whether the difference is due to genuine material factors or not. Other large supermarkets are also facing claims and more retailers could be at risk.

There has been no reported progress in the supermarket equal pay cases yet, It is worth conducting a gender pay gap review discreetly to assess your liability and take corrective action or at least start to budget for change. The recent BBC star pay furore will further add to the possibility of challenge.

3. Whistleblowing
Perhaps the liveliest area for case law in the last few years relates to the scope of the term “in the public interest” in whistleblowing legislation. Since June 2013, whistleblowing laws have provided that a disclosure is not protected, unless the employee reasonably believes that the disclosure is being made “in the public interest”.

The EAT in Chesterton v Nurmohamed held that matters potentially affecting the operation of the commission scheme of more than 100 managers at a large firm of estate agents could be “in the public interest”. The Court of Appeal was expected to decide whether or not, the EAT’s interpretation of what that phrase means is correct.

Ruling
The Court of Appeal decided in the Chesterton whistleblowing case that the issue is not whether the tribunal thinks that the disclosure was in the public interest, but whether the whistle-blower thought so, and whether that belief was objectively reasonable at the time. There are no “absolute rules” about what it is reasonable to view as being in the public interest. Be very careful when anyone complains about anything that might just possibly be termed whistleblowing. In the first instance you should try to steer them in the direction of your Grievance procedure. Employees with less than 2 years service who cannot claim unfair dismissal have been known to try to sneak in through the door marked ‘whistleblowing’!

4. Employment Tribunal Fees
The Supreme Court heard Unison’s appeal against the Court of Appeal decision in March 2017 in respect of Tribunal fees. The Court had previously rejected it on the basis that there was insufficient evidence of claimants’ inability to afford the fees.

Ruling
Probably the biggest case of many years was the Supreme Court judgment that the regime of Tribunal fees was unlawful and that fees will therefore need to be abolished, and the fees paid must be refunded to claimants. The law already requires employers to act properly i.e. reasonably and correctly. There are now teeth to the real ability of employees or ex-employees to make a claim without being deterred by lack of immediate finance.

5. Holiday Pay
British Gas applied for permission to take the case brought by a Mr Lock to the Supreme Court. If allowed to proceed, the Supreme Court would finally determine whether EU law can be read across into UK domestic law to require employers to take into account commission (and other) payments when calculating pay for the basic four week holiday entitlement under the Working Time Regulations 1998.

The Supreme Court hearing was fast-tracked, given the serious financial implications for employers.

Ruling
British Gas were not given permission to appeal to the Supreme Court in the British Gas v Lock case, so the settled legal position is that commission must be a feature of holiday pay. If you pay commission or regular bonuses then you need to seriously review how you are going to calculate holiday pay for such staff.

6. Religious discrimination
Last year, the ECJ heard two religious discrimination cases, both concerning female Muslim employees who had been told not to wear headscarves (hijabs). Before the judges make a decision, it is usual practice in the ECJ that an Advocate General considers the case and writes an Opinion (which may or may not be followed).

Perhaps the biggest employment law surprise of 2016 was the Advocate General’s opinion in Achbita, on when employers can ban religious dress, on the basis of maintaining its religious and political neutrality.

A different Advocate General considered that an employer cannot have a blanket ban on religious dress simply because of a desire for neutrality or because a client or customer objects. The two ECJ judgments, expected to be delivered in 2017, will decide which of the two Advocate General approaches is correct.

Ruling
Finally, the ECJ gave what were arguably conflicting judgments in the two cases they heard about Muslim headscarves and dress codes. It was held that a policy banning headscarves in the workplace was not direct discrimination and that in the other case, the banning of a headscarf was not a genuine occupational requirement and therefore discriminatory. The key lessons are to think very carefully about any dress code and its impact on morale but especially if it might be harder for some groups to comply or appears to be directly discriminatory.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

In 2018 we are running two courses which will cover much of the knowledge and many of the skills needed to be a successful Manager of people. The courses are to be run independently of each other, but when combined, should provide a comprehensive guide to many of the necessary competencies needed to be an effective Line Manager.

We have designed both these courses to suit those who are new to Management, as well as being a useful refresher for the more experienced Manager who is looking to develop their existing skills and/or wants to be more successful by learning new/different approaches, as part of your personal/career development.

Our training courses are highly participative, practical in content, and are intended to challenge our delegates into recognising there are always alternative ways of dealing with people and/or situations.

Core Skills for Managing People – Norwich – 7th March & Newmarket – 26th April

You are only as good as the people you manage. Therefore, if you do not manage them effectively, this does not reflect well on you.

This course focuses on five key aspects of successful people management, including effective communication skills; practical motivation and engagement; the ability to develop individuals and teams; and finally, knowing your own default management style and when you need to change it.

You’re Fired – Better Approaches Norwich – 18th October & Newmarket – 21st November

Saying “you’re fired” may actually be an indicator of management failure, even though it has been popularised in the media.

This course looks at the three key areas, namely recruitment & induction, performance and attendance management which if applied correctly, should minimise the need to consider terminating employment. However, the fourth key area is the effective use of the disciplinary procedure to formally improve performance standards, and only if that does not work, how best to dismiss.

Data Protection – Current & Future Requirements – Norwich – 12th April

Talking to many organisations, it is apparent that a considerable number are not currently complying with the Data Protection Act 1998. In May, the law on data protection changes again and will be even more rigorous in how organisations acquire, process and dispose of data, particularly personal data.  The Information Commissioners Office (ICO) has made it clear that the fines for breaching data protection rules are likely to significantly increase.  No organisation, large or small, will be exempt.

Consequently, many organisations are now faced with a big catch up exercise that goes far beyond purely employee data. Any organisation that uses databases, in whatever capacity, will require policy statements, privacy impact risk assessments, IT security measures, audit trails and staff training in order to demonstrate compliance with the law.

We are further aware that there is a lot of scaremongering, misinformation and even over-selling about the full extent of what really needs to be in place for most organisations, especially SMEs. We are, therefore, delighted to announce that, in conjunction with a leading Data Protection expert and trainer, we are running a half day course on this subject to help you better understand the existing and new requirements, so that you can put together a meaningful action plan on activities that need to be carried out before the May 2018 deadline.

When Employment Tribunals (then “Industrial Tribunals”) were set up, access to them was free. If you wanted to bring a claim, you sent in a form, the tribunal heard the case, and in due course it told you whether you had won or lost, and if successful, how much your employer would have to pay you. If you represented yourself, the whole process didn’t need to cost you, however, over time using paid  advocacy became far more the norm and this in turn has potentially has increased the cost of making claims.

The most significant change to the Tribunal system came in July 2013 when to bring a tribunal claim you had to pay two fees: one for starting the claim, and a second larger fee for the hearing. Since then Unison have been fighting the system through the courts, unsuccessfully until it went to the Supreme Court which held unanimously that the Fees Order (which led to a 70% reduction in claims) is unlawful and unconstitutional, so will be quashed.

The Supreme Court noted a contrast between the level of fees in the tribunal, and the small claims court (where it is very much cheaper to bring a claim for a small sum of money).  Lord Reed emphasised the importance of the rule of law, and that specific statutory rights granted by Parliament may not be reduced by statutory instrument from a minister. The fees effectively prevent access to justice for many people.   It was also relevant that the Order had made a much less significant contribution to tribunal costs than expected, had failed to deter unmeritorious claims and did not appear to have resulted in more ACAS settlements.

Peter Stanway, our BackupHR™ legal expert comments:

The judgment is likely to have both significant short-term and long-term effects. Initially the Employment Tribunals Service will need to do an immediate rewriting of the tribunal rules, and a reprogramming of the online Claim Form system because the Supreme Court made it clear that all fees paid between 2013 and the ruling will have to be refunded by the Lord Chancellor’s Department. This will be difficult as many successful claimants will have had fees ordered to be paid by the Respondent, so there will probably need to be a manual review of all decided cases.

Those people who chose not to bring a claim because of the fee may seek to make a late claim. Tribunals may be amenable to the argument that it was not reasonably practicable to bring a claim, when a Claimant was significantly impeded from doing so by unlawful fees, so it is just and equitable to extend time for bringing a claim.

The Government will have to decide if it is going to abolish the fees regime entirely. Since the Supreme Court primarily criticised the level and structure of fees, rather than the principle – the Government may be tempted to explore a more nuanced system of shifting the cost of the Tribunal system onto litigants and possibly employers. It is probable that they will issue a consultation paper with options for change, but may be reluctant to legislate with such a thin majority.

In the short term there is likely to be a big increase in claims.

Actions

  • If you are worried about a claim arising from recent action you have taken, or some other dispute, get professional advice.
  • In future you should be more cautious, which primarily means properly following your procedures and good practice.
  • Be careful about actions which may appear arbitrary, capricious or discriminatory.
  • If you are thinking of making a claim or advising a friend/relative – do think carefully about whether bringing a claim is the best thing to do. Just because it is now possible to bring a claim without paying a fee, doesn’t mean there are no costs. The emotional costs of bringing a claim are usually high. Many people find it a very distressing and futile experience.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.