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Andrew49

January’s top 5 employment cases

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January’s top 5 employment cases:-

 

  1. Facilities assistant fired for excessive internet browsing at work was fairly dismissed, tribunal finds

A facilities assistant was fairly dismissed after an investigation revealed her level of non-business related internet use was “substantial”, an employment tribunal ruled.

A Liverpool tribunal found national law firm Weightmans was entitled to fire Mrs T Hall, a facilities assistant who worked for the company from February 1995 to January 2019, over her internet use while at work, which included online shopping. The tribunal dismissed the claim of unfair dismissal lodged by Hall, saying the investigation and dismissal procedure followed by Weightmans was “textbook”.

  1. Female driver relocated by manager who found her attractive awarded £74,000

A Nottingham employment tribunal ruled that Kim Beaney, a driver and trainee highway inspector, had been constructively unfairly dismissed following harassing behaviour by her manager and her supervisor.

The tribunal heard that Beaney’s line manager, Grant Bosence, was attracted to her, so deliberately placed her at a depot where his friend, Steven Curtis, was supervisor, so Curtis could “extol [Bosence’s] virtues as a potential romantic interest”. In doing so, Bosence reassigned Beaney from the depot she was originally allocated.

It found that Beaney was the victim of harassment and discrimination by her colleagues, which led to her resignation a few months into her employment.

  1. Retailer constructively unfairly dismissed disabled manager after failing to make reasonable adjustments

A disabled manager at a health food shop was constructively unfairly dismissed after the chain failed to provide her with additional support, a tribunal ruled.

The East London Employment Tribunal unanimously ruled that Holland & Barrett failed to make reasonable adjustments for Miss R Harkness after it did not increase staffing hours at her store to avoid the risk of Harkness working alone, and failed to provide her with mentoring support. Harkness had raised concerns about a medical condition that meant she might have to use the toilet without notice and its impact on her ability to work on the shop floor alone.

The tribunal found this failure to make reasonable adjustments directly resulted in Harkness’s resignation in June 2018, and so her resignation was considered constructive unfair dismissal.

  1. NHS worker asked if her pregnancy was planned was discriminated against, tribunal rules

A pregnant NHS administrator was discriminated against after her manager asked if her pregnancy was planned and if the cost of her maternity leave would come out of the team’s budget, a tribunal found.

A London tribunal ruled that the comments made to Haddi Camara, a temporary employee assigned to work for the East London NHS Foundation Trust, were “objectively inappropriate and upsetting” and “manifestly made because of the claimant’s pregnancy”.

The tribunal said the comments were likely made by her line manager in frustration, as she had been considering terminating Camara’s employment and saw the pregnancy as a barrier to doing this. However, the tribunal ruled Camara had been fairly dismissed because the reason for her dismissal was budgetary pressures.

  1. Oxford professor forced to retire at 69 wins age discrimination claim

An Oxford University professor forced to retire before his 70th birthday because of the university’s employer justified retirement age policy (EJRA) was unfairly dismissed and discriminated against, an employment tribunal ruled.

The Reading Employment Tribunal found that Oxford University acted unlawfully by dismissing Professor Paul Ewart, who was head of atomic and laser physics at Oxford’s Clarendon Laboratory, because of his age. At the time of his dismissal in September 2017, Ewart was 69.

The tribunal found the EJRA, introduced in 2011 in a bid to bring younger and more diverse staff into the university, had only created a “trivial” number of new opportunities and so forcing older staff to retire was not a “proportionate” method for achieving the policy’s stated aims.

National Minimum Wage and National Living Wage increases April 2020

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Last night the Government announced the National Minimum and Living Wage increases for 2020

The National Living Wage, for those 25+ will become £8.72 p/h

The rate for 21 to 24 years olds will become £8.20 p/h

For companies that strive to give “The Real Living Wage”, set by independent experts and championed by the Living Wage Foundation, this is £9.30 an hour rising to £10.75 in London, where costs are higher.  It is earned by all workers regardless of their age.

April 2020 changes

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Written statement of key terms

All workers, including employees starting work on or after 6 April 2020, will be entitled to a written statement of key terms on or before the date they start. This will need to include additional details such as any probationary period and training entitlements.

Key facts for agency workers

All employers will be required to provide agency workers with a key information document containing prescribed information including:

  • their type of contract;
  • the minimum expected rate of pay;
  • how they will be paid and by whom (for example, an intermediary or umbrella company);
  • any deductions or fees that will be taken;
  • any non-monetary benefits to which they will be entitled; and
  • any entitlement to annual leave and payment in respect of such leave, and an illustrative example of what this might mean for take-home pay.

Holiday reference period

The holiday pay reference period for determining a week’s pay is changing from 12 to 52 weeks. This will ensure those who do not work a regular pattern throughout the year are not disadvantaged by having to take their holiday at a quiet time of the year when their weekly pay might be lower.

The 52-week reference period will apply to all calculations of statutory holiday pay under the Working Time Regulations 1998, in which the 12-week reference period would otherwise have been used. In other words, this will affect workers with no normal working hours, and workers with normal working hours whose pay varies with the amount of work done or the times or days on which it is done. Employers need to make sure they are calculating holiday pay in the correct way.

Information and consultation thresholds

The threshold required for a valid employee request to negotiate an agreement on informing and consulting its employees will be lowered from 10 per cent to 2 per cent of employees, subject to the existing minimum of 15 employees.

IR35 and off-payroll rules

Tax legislation IR35 will be extended to the private sector from April 2020. The responsibility for determining employment status for tax purposes will shift to the employer. Businesses should ensure they have an action plan to review their current arrangements with off-payroll workers, their internal systems and their policies should the changes apply to them.

National insurance contributions on termination payments

Class 1A employer national insurance contributions will be payable on termination payments of more than £30,000.

The Parental Bereavement (Leave and Pay) Act 2018

Legislation is expected entitling all employed parents or carers to a day-one right to two weeks leave if they lose a child under the age of 18 or suffer a stillbirth after 24 weeks of pregnancy. If the employee has more than 26 weeks of continuous service, they’re entitled to the statutory rate for this two-week period – otherwise, the leave will be unpaid.

 

Do you have to give a reference?

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Currently no, however, there is proposed legislation which will prevent employers withholding references to protect individuals who have faced discrimination/harassment from being intimidated.  It isn’t clear whether this will be implemented or not at this time.

The advice – just give a basic reference with start date, end date and job title!

FCA update:

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The Senior Managers and Certification Regime (SM&CR) replaced the Approved Persons Regime (APR) for solo-regulated firms from 9 December 2019. The regime aims to reduce harm to consumers and strengthen market integrity. It sets a new standard of personal conduct for everyone working in financial services.

The SM&CR encourages greater individual accountability and sets a new standard of personal conduct in financial services by:

  • ensuring senior managers are accountable for conduct in their areas of responsibility
  • ensuring a minimum standard of behaviour for everybody working in the sector through our 5 Conduct Rules
  • enhancing professionalism in the industry by requiring firms to certify that their staff are fit and proper

https://www.fca.org.uk/firms/senior-managers-certification-regime/solo-regulated-firms

What to expect in 2020….

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  • The Good Work Plan – outlines an intention to legislate to improve working conditions for agency workers, zero-hour workers and other atypical workers, although many of the measures do not yet have specific timescales. The measures for which legislation has already been published are mostly due to come into force in April 2020.

 

  • Mandatory reporting of the ratio between CEO pay and average staff pay for companies with 250 or more employees, and a package of other corporate governance changes, all of which will be effective for accounting periods beginning on or after 1 January 2019 (and so the first pay ratio reports will be published in 2020).

 

  • Consultation should close on Ethnicity gap reporting, Employment Status clarification and Salary Sacrifice Schemes.