September 2011 Employment Law Update
September 2011 Employment Law Update
If you would like to discuss any employment issues please contact Julie Taylor on 01635 508181
1. Employed or Self-Employed? That is the question!
The Supreme Court has held that in determining the thoroughly perplexing matter of whether a person is an employee or self-employed, the terms of any written agreement can be disregarded if they do not reflect what the parties have actually agreed.
What does this really mean?
Employers who try to circumvent employment laws will not be able to rely on statements in written contracts confirming that their workers are self-employed if such contracts do not reflect the reality of the situation. This is the case even if Revenue and Customs have already agreed that such workers are ‘self-employed’. To summarise by analogy, it would seem that simply labelling a spoon a fork will not actually make it a fork where it is in fact still a spoon!
What should employers do?
There remain some basic questions, the answers to which will ‘indicate’ whether or not a worker is employed or self-employed but this method is not conclusive. Therefore, businesses who are in doubt as to the actual status of their workers should take specific legal advice.
2. Harassment in the workplace: prevention and the reasonable steps defence
The Employment Appeals Tribunal (EAT) has clarified that an employer who wants to rely on the defence that reasonable steps were taken to prevent the sexual harassment of one of its employees by another employee will only be successful if the employer can demonstrate it took reasonable steps to prevent such harassment before the incident complained of.
What should employers do?
Obviously employers should take reasonable steps to prevent harassment in the workplace, but what does this mean? Action points include:-
- ensuring that clear written policies relating to sexual discrimination and harassment are in place;
- providing staff with training in these areas; and
- promoting a culture of compliance.
Simply taking steps after the event to prevent the recurrence of harassment is not sufficient and so as they say, prevention really is better than cure!
3. Dress codes for the face?
In general terms it is well established that where staff are required to wear uniforms it is permissible for employers to insist that male and female staff wear different uniforms.
You may have seen the recent news reports of a sales assistant who has been effectively forced to leave her job because she refused to wear make-up in accordance with the dress code for all female shop assistants. It is not yet confirmed whether she will bring a tribunal claim, but if she does the decision of the tribunal is likely to be interesting, especially for employers in the retail and hospitality sectors. But for now, we’ll just have to wait and see!
What should employers do in the meantime?
When implementing dress codes employers should take into account sex discrimination law and bear in mind that other forms of discrimination may arise, for example, on grounds of religion, race or transgender. Discrimination may also arise by reason of age or disability, as in the case of a sales assistant who won a claim arising out of the wearing of a cardigan to disguise the fact that she had a prosthetic forearm.
4. The National Minimum Wage: pay for getting your beauty sleep?
The EAT has held that when an employee is required to sleep on their employer’s premises but is not on call, the time spent counting sheep in the land of nod does not count as ‘work’ for the purpose of the National Minimum Wage Regulations.
Additionally as usual at this time of year, the rate at which the minimum wage is paid will increase from 1 October 2011.
5. Equal pay all round?
The Court of Appeal has stated that in a claim for equal pay an employee is entitled to receive equal terms.
What does this mean?
When deciding an equal pay claim the Tribunal will compare each term of the employment contracts which relates to pay. The result that a female employee may be paid more than a male comparator overall is irrelevant.
What should employers do?
Employers should ensure that female and male employees receive comparable pay in terms of basic and overtime pay unless there really is a genuine material reason for a difference.
6. Religious discrimination: various cases journey to Europe
Several high profile cases relating to the religious discrimination of Christian workers are off to the European Court of Human Rights. The cases relate to:
- the wearing of a cross on a necklace while at work;
- the requirement that a Christian employee officiate at civil partnerships notwithstanding her wish not to do so on religious grounds; and
- the dismissal of a Christian relationship counsellor for refusing, on religious grounds, to provide help and counselling to same-sex couples.
What should employers do?
Previous decisions by both the UK and European courts in relation to religious discrimination of Christians have led to contradictory and confusing case law. The Equality & Human Rights Commission (EHRC) submitted a report regarding these cases the other day, but unfortunately until the law in this area is clarified there is little that employers can do other than ‘play safe’ and seek advice before making decisions that may upset staff with religious beliefs.
7. Conundrum resolved: What is the termination date in the case of summary dismissal during a notice period?
The EAT has confirmed that where an employee is summarily dismissed (i.e dismissed immediately) during their notice period, the effective date of termination is brought forward from the date on which the notice is due to expire to the date on which the employee is summarily dismissed. So in other words, the facts speak for themselves and the time will run from the date a dismissal actually takes effect.
What does this mean?
Potentially, in some circumstances summarily dismissing an employee who is serving out a notice period could prevent the employee from accruing one year’s service, which is currently a prerequisite for the notorious unfair dismissal claim. However, be warned that summary dismissal in such circumstances may be viewed as victimisation and therefore give rise to a claim of ‘automatic’ unfair dismissal for which no minimum length of service is required. So it seems we still come back to reasonableness!
What should employers do?
Deciding to dismiss an employee always requires full consideration of the specific situation and therefore it is extremely important employers act reasonably and fully understand the legal requirements and ultimately consider whether specialist advice is necessary in each situation. It is VERY important to make these decisions having considered the full facts and procedure required.
8. Conundrum resolved: What is the termination date in the case of summary dismissal during a notice period?
The Agency Workers Regulations 2010 which are due to come into force on 1 October 2011 have been amended by the Agency Workers (Amendment) Regulations 2011.
The amendments correct (ahem) a number of drafting errors in the original regulations by:
- widening the definition of an ‘agency worker’;
- changing the circumstances when an agency worker may not be entitled to be paid the same as other staff recruited directly by a hirer; and
- changing the circumstances in which an agency will be liable for any failure on the part of a hirer to comply with their obligation to provide the same basic working and employment conditions to agency workers as they do to the staff they recruit directly.
Please note that these comments are intended to summarise the employment issues of the moment, not to provide detailed legal advice, so if you need assistance with any employment issues you may have please contact Julie Taylor.
