robbryanassociates

Archive for 2016|Yearly archive page

Mary’s Baby is due on the 25th

In Uncategorized on December 13, 2016 at 3:01 pm

A Christmas message (on the lighter side!)

Mary’s baby is due on 25th December, so what is an employer to do?

Joseph needed to take time off to accompany Mary to an ante natal visit. Whilst Joseph was “surprised” to find Mary was pregnant (and there may be some doubt as to whether Joseph is the biological father), if he is in relationship with Mary then it would be appropriate for his employer Carpenter’s R Us to allow him time off for this. There would be no requirement however for this to be paid.

Mary will be entitled to have up to 52 weeks’ maternity leave. She must take off the two weeks following the birth of the baby, this period is “compulsory maternity leave. Mary has been employed for 9 months now and has provided a MatB1 form. Providing Mary’s average earnings exceeded the threshold for 8 weeks before the 15th week before the expected birth she will be eligible to receive Statutory Maternity Pay (SMP) for 39 weeks. For the first six weeks of leave Mary will receive 90% of her earnings from her employer.

Mary is about to go on a trip to Bethlehem. We understand that this is due to the census. Whilst the Roman’s failed to pass the necessary Statutory Instrument to create any extra public or bank holiday we are advising all employers that travel should be allowed to travel to fulfil this “public duty” Whether this will be paid will depend on the employment contract. As a separate aside, careful consideration should be given to whether Mary is fit to travel by donkey in the 35th week of pregnancy. Employers should consider completing a Risk Assessment for employees who inform them of their pregnancy.

This week Mary has said she would like to book holiday from Wednesday to take all her remaining holiday for this year. Mary has questioned what will happen to her 5.6 weeks’ holiday next year if she has the whole year off? We suggest Mary’s employer communicates with Mary on a periodic basis throughout the leave period to inform her of any company changes or news. If Mary wishes to return from leave early she will need to provide her employer a minimum of 8 weeks’ notice. Regarding her holiday whilst on leave, she will continue to accrue her holiday during this period. Any remaining holiday that is not used should be carried over to the next holiday year.

Mary has offered to help her employer on a casual “as and when required” basis for festival catering engagements over 2017. Can she do this work whilst on Maternity Leave? The employer and employee can agree to up to 10 Keeping in Touch (KIT) Days this would allow Mary to work and be paid for these days. Any other work for the employer would bring the Maternity leave to an end.

What happens next Christmas? Mary has the right to return to her job as before if she returns after the first 26 weeks (ordinary leave) period. If Mary takes leave up to next Christmas, then she will be entitled to her old job, or if that is not practical, a job on “no less favourable terms”

The Employer thinks that being the mother of the baby Jesus may be a “bit of a handful” and Mary has committed to do whatever she can for her child whether she likes it or not! What if she can’t cope? Can she work part time?

For some time, parents of children under 18 and carers could request changes to their employment terms. This has now been extended to all employees. Mary does not need to wait until the birth of her child to make a request. We suggest the employer arranges to discuss this with Mary giving a written response in good time (but no less than 3 months). The employee has a right to request changes but cannot demand changes! There are specific reasons why a flexible working request can be refused.

Joseph has apparently mentioned to Mary that Carpenters R Us have a special enhanced Maternity policy and thinks that if he was a woman there, then he could take 6 months leave with full pay. Can Mary and Joseph share their leave? A recent court case has highlighted that where parents share leave an employee may well be able to bring a sex discrimination claim, where a man and woman would be treated differently in the same circumstances. Any employer who offers enhanced maternity terms should be well advised to consider what Paternity and Parental leave terms are offered.

 

RBA wishes all our clients and partners a Very Merry Christmas.

This month’s employment focus on the RBA website looks at Maternity issues in the workplace and includes out frequently asked questions  factsheet. The link can be found at http://www.robbryanassociates.org.uk/2016/12/12/focus-on-maternity/

 

Rob Bryan LLM MA FCIPD TechIOSH
Rob Bryan Associates Limited
Tele/Fax 01462 732444

Email rob@robertbryan.co.uk
Mob 07801 223867
robbryanassociates.org.uk

Advertisements

Maternity matters 2016

In Uncategorized on December 13, 2016 at 1:01 pm

Workplace Maternity Discrimination

The Citizens Advice Bureau reports that it has seen a 58% increase in the number of maternity leave queries in the last two years. Below are some of the pregnancy and maternity discrimination issues to be aware of and some claims that commonly come before employment tribunals.

Selecting pregnant employees or new mothers for redundancy

Pregnant employees or new mothers are not exempt from being selected for redundancy in a genuine redundancy situation. However, if you use a sham redundancy as an excuse to dismiss an employee who is pregnant or on maternity leave this amounts to unfair dismissal and direct pregnancy and maternity discrimination. Even where there is a genuine redundancy situation, employers should remember that:

  • Employees on maternity leave have special rights, with priority given to them if there is suitable alternative employment available.
  • If absence records are used as a redundancy selection criterion, the inclusion of maternity-related absences can result in pregnancy and maternity discrimination.

Mishandling requests for flexible working on return from maternity leave.

The issue perhaps most likely to cause a dispute between an employer and an employee returning from maternity leave is her hours of work. It is common for employers to receive requests to return from maternity leave on a part-time basis.

There is no automatic right to switch to part-time working. However, an unjustified refusal to allow an employee to work part time after having a baby is likely to constitute indirect sex discrimination. Employers also have a legal duty to handle such requests by employees in a reasonable manner.

Key case: In British Airways Plc v Starmer, the EAT held that it was discriminatory for an employer to turn down a pilot’s request on returning from maternity leave to work 50% of her full-time hours, instead requiring her to work at least 75% of full-time hours.

Inappropriate comments about pregnancy that amount to harassment.

A line manager’s inappropriate comments to a pregnant employee can lead to an employment tribunal claim. It may be that the line manager is annoyed at the inconvenience that he or she envisages will be caused by the employee’s pregnancy and subsequent absence on maternity leave. However, employers should make it clear in line manager training that this is no excuse for making negative remarks to a pregnant employee.

Key case: In Wilson v Provincial Care Services Agency and others, a tribunal in Northern Ireland ordered a care worker’s former employer to pay her £9,500 after it failed to provide her with a reference. The tribunal accepted the care worker’s evidence that a manager said:

  • “This is what happens when you have babies” (when she resigned because she could not balance her working hours with her childcare arrangements); and that
  • she was “the big girl who wanted a baby and did not want to work” (when she tried to get a reference from her former employer).

Health and safety breaches against pregnant employees or new mothers.

Health and safety legislation makes provision for risk assessments for pregnant employees and new mothers. Employers risk a finding of pregnancy and maternity discrimination if they do not abide by these rules.

The employer may have to alter the employee’s working conditions or hours of work if any other action would not avoid a risk that has been identified;

  • if it is not reasonable to change her working conditions or hours or this would not avoid the risk, offer the employee any suitable alternative work; or
  • as a last resort, suspend the employee on full pay if there is no suitable alternative work available.

Failure to communicate with an employee on maternity leave.

Employees on maternity leave should be consulted over a range of workplace matters, with problems commonly occurring if the employee is “cut off” from communication during maternity leave.

For example, an employee on maternity leave should be:

  • consulted about any proposed redundancies or reorganisation, so that she has the same information as those at work; and
  • given information about pay rises, bonuses and internal vacancies (including promotion opportunities).

To achieve this, line managers are allowed to make “reasonable contact” with employees who are on maternity leave.

Key case: In Visa International Service Association v Paul, the EAT held that an employee was constructively dismissed when her employer failed to notify her, while she was on maternity leave, of a newly created post in her department in which the employee was interested, and considered herself well qualified for.

Failure to allow a woman to return to her old job after maternity leave.

A common issue for an employee returning from maternity leave is finding that her job has changed beyond recognition. The employee could return to find that she has been given a lower level of responsibility or work that is not appropriate for her skills.

Employers should remember that an employee returning to work after ordinary maternity leave (no more than 26 weeks’ leave) has the right to return to the job she occupied before her maternity leave.

If the employee has taken additional maternity leave (more than 26 weeks’ leave), she has the right to return to her original job unless this is not reasonably practicable, in which case she has the right to return to another suitable job, on terms no less favourable.

Key case: In Blundell v Governing Body of St Andrew’s Roman Catholic Primary School and another, the EAT held that a teacher was not entitled to return to the same class that she had been teaching when her maternity leave began. The school operated a policy of rotating teachers’ classes every few years and her job essentially remained the same.

Basing recruitment decisions on an employee’s family situation.

No line manager training on recruitment is complete without a stark warning of the dangers of asking a job applicant in an interview about family plans.

For example, line managers should be warned not to ask:

  • job applicants with children about their children or childcare arrangements;
  • women who are pregnant about their plans for maternity leave and childcare.

Interviewers should stick to exploring the job applicant’s ability to perform the job. It is blatant pregnancy and maternity discrimination to base a recruitment decision on an employee’s pregnancy or family plans.

Key case: In Webb v EMO Air Cargo (UK) Ltd, the ECJ made it clear that it is discriminatory to dismiss a woman who, shortly after her recruitment, is found to be pregnant.

We would advise that you contact us when dealing with maternity matters in order to avoid some of the discrimination issues that can

Monitoring Employees’ Use of the Internet

In Uncategorized on June 28, 2016 at 8:23 pm

You will have probably heard on the news about the recent case that gives employers the right to read an employee’s personal messages sent on private messaging platforms during work hours.
Is the right to respect for private life and correspondence breached if employers monitor employees’ personal communications at work?

No, subject to reasonableness/proportionality, according to the European Court of Human Rights in Barbulescu v Romania.

Mr Barbulescu was an engineer who used his business Yahoo Messenger account to send and receive personal messages with his fiancee and his brother, including messages about his health and sex life.  This was in breach of his employment contract.  His employer, discovering this accidentally, dismissed him.  Mr Barbulescu argued that the Rumanian courts should have excluded all evidence of his personal communications on the grounds it infringed his Convention rights to privacy.

The European Court of Human Rights held that Article 8 (right to respect for private life and correspondence) was engaged, but that the Rumanian courts were entitled to look at that evidence in deciding whether the dismissal was justified.  The European Court was swayed by the fact that the Romanian court judgment did not reveal the precise content of the personal messages, but only the fact that they were personal messages.  The Court recognised the need for employers to be able to verify that employees are completing professional tasks during working hours.

Our advice would to be to ensure that employers include this right in any computer policies they have. RBA clients who use our Employee Handbook, this will already have been included in any recent updates.

Please do not hesitate to contact us if you wish to discuss this any further or would like us to review your policy.

Holiday Pay – Commission

In Uncategorized on June 28, 2016 at 8:18 pm

Employers will have to pay commission as part of holiday pay, the Employment Appeal Tribunal (EAT) has confirmed. The decision was handed down in the long-running case of Lock v British Gas Trading Ltd, which was first brought to tribunal in April 2012.

The case involves Mr Lock – a British Gas salesperson – whose remuneration package included a basic salary plus commission, based on the number and type of contracts to which customers agreed. When he took annual leave, he would only receive basic pay, which was considerably less than his usual salary.

Lock argued that this was a disincentive to taking annual leave and lodged a claim with an employment tribunal, which referred the case to the European Court of Justice (ECJ) to clarify the relationship between holiday pay and commission for workers where commission was a regular part of their pay.

The ECJ concluded that because his commission was directly linked to the work he carried out, it must be taken into account when calculating holiday pay. The case was then referred back to the UK tribunal to apply its ruling to UK law.

The subsequent tribunal decision, which was handed down last March, found in favour of Mr Lock, and also applied an extra clause to the Working Time Regulations 1998 to make them comply with the Working Time Directive.

In a similar case, Bear Scotland v Fulton, the EAT ruled that UK law must be interpreted in a way that conforms to EU law by requiring employers to take into account non-guaranteed overtime payments when calculating holiday pay.

The tribunal in the Lock case ruled that the same approach should apply to commission.
British Gas appealed the initial tribunal decision, claiming it would be “judicial vandalism” to follow the ECJ’s recommendations and interpretation of the Working Time Regulations.

The EAT today dismissed this appeal, holding that UK legislation could be interpreted in a way that conforms to the requirements of Article 7 of the EU Working Time Directive, which refers to entitlement to annual paid leave.

Today’s EAT decision will influence the outcome of thousands of other pending holiday cases, and will force employers to review their current holiday pay allowances in relation to elements such as overtime and commission.

It seems there’s now little room for doubt that commission and overtime, both guaranteed and non-guaranteed (where the worker is obliged to work overtime if required), will have to be included in holiday pay.

This will lead to additional expense for employers who need to be aware that a failure to include such payments will open the floodgates to a whole succession of unlawful deductions from wages claims.

The reference period employers must use to calculate holiday pay is yet to be clarified – the ECJ said this was a matter for national courts to decide by taking an average over a period they considered to be representative.

British Gas has asked for permission to take the case to the Court of Appeal for a definitive ruling.

Any appeal is unlikely to be heard until next year. Many thousands of other claims, against other employers in England, Wales and Scotland, have been stayed pending today’s decision. No doubt most of those employers will now be asking for that stay to remain in place until we have a definitive ruling. In the meantime, the case of Bear Scotland is itself expected to go back before the EAT later this year, with the employees challenging the rule that the right to claim historic arrears of holiday pay is lost if there is a gap of more than 3 months between under-payments.

In light of the ongoing uncertainty in this area, employers would be well advised to take specialist advice before making changes to the way holiday pay is calculated or compromising actual or potential back pay claims. If you would like to discuss this topic further please contact us.

Dressed for Work?

In Uncategorized on June 28, 2016 at 8:14 pm

When summer does arrive in the UK employers often begin to notice more relaxed dress standards. Now is the time to remind employees of your guidelines on what you regard as acceptable. Dress codes should help Manager’s avoid misunderstandings with employees about what attire is considered appropriate for the work place. Written guidelines will also assist Manager’s in enforcing dress codes in a consistent, non-discriminatory manner.

Employers establish dress codes for a variety of reasons, including to present a positive image to clients, to prohibit employees from coming to work with offensive, distracting, or inappropriate attire, and to avoid clothing that would present a health and safety risk. While business attire was the norm at companies for many years, employers have relaxed dress codes in an effort to improve morale and retention. Casual dress policies have become more common at work in response to employees’ demands for flexibility and a relaxed work environment.

We would advise having clear, fair and enforceable policies on dress in the workplace. You also need to ensure that your workplace actions and expectations are not discriminatory.

You have probably recently seen in the press reference to the London receptionist sent home for not wearing heels. You can understand how a number of professions have to wear particular pieces of uniform for health and safety reasons, but for what logical reasons should women be required to wear high heels?
As the law stands, employers can dismiss staff who fail to live up to “reasonable” dress code demands, as long as they’ve been given enough time to buy the right shoes and clothes. They can set up different codes for men and women, as long as there’s an “equivalent level of smartness”.

Aside from the reasons above, employers should be aware that by dictating dress codes to women, they could find themselves at the wrong end of a discriminations claim if an employee was treated “less favorably” than a colleague of the opposite sex as a result. Simply, where the dress code could result in some disadvantage to the female employee which other male employees do not face, they may have a case on the grounds of sex discrimination

Employers are right to insist that their staff are presentable, neat and professional and appropriately dressed for work, but should not insist that females wear high heels to conduct their working day or shift.

There has also been in the press, details of a Belgian case regarding the treatment of religious observance and dress in the workplace.

In Achbita v G4S Secure Solutions NV the employee – a Muslim woman – was dismissed for insisting on wearing a hijab (or headscarf) when at work. The employer had a blanket rule forbidding any customer-facing employee from wearing visible religious symbols or dress in order to preserve a strict ‘neutrality’ in its dealings with customers. The Belgian Court referred the matter to the European Court of Justice asking whether a dismissal in such circumstances amounted to direct discrimination.

The case has yet to be decided however, it is unlikely that a UK Employment Tribunal could be persuaded that a policy of ‘neutrality’ is a sufficient reason to dismiss a Muslim woman who feels a religious obligation to wear the hijab at work.
Any dress code should be non-discriminatory and should apply to both men and women equally. If you need help to review your dress code please contact us and we can ensure that your workplace policies are not discriminatory and appropriate for your business.