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Archive for the ‘contracts’ Category

Recent Cases of Interest

In business principles, contracts, Employment law, Equality, Uncategorized on September 27, 2021 at 10:54 am

Forstater v CGD Europe and Others – Discrimination on the Grounds of Philosophical Belief

The Equality Act 2010 protects against discrimination based on 9 protected characteristics, namely age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, pregnancy and maternity.

In the recent case of Forstater v CGD Europe and others, Ms Forstater registered a claim with the Employment Tribunal that her contract with CGD Europe, who are a registered research or think-tank charity, was not renewed because of her gender-critical beliefs.

Before deciding whether there was any wrongdoing on the part of CGD Europe, the Tribunal had first to consider whether her belief was indeed protected by the Equality Act.   

In a complex scenario centred around transgender rights and identity, Ms Forstater’s viewpoint was, in a nutshell, that biological sex was real, important and unable to be changed. Her claim raised the debate about the scope of trans rights and the relevance of an individual’s biological sex, versus their gender identity.

Initially the Tribunal found that Ms Forstater’s beliefs were contrary to trans rights previously established by the European Court of Human Rights. However, the Tribunal’s decision has now been overturned by the Employment Appeal Tribunal, who considered that Ms Forstater’s views were deserving of respect and that only the most extreme beliefs should be excluded from protection under the Equality Act.

Ms Forstater’s claim has therefore now been referred back to the Employment Tribunal for them to consider whether CGD Europe’s original decision not to renew her contract was discriminatory.

Follows v Nationwide Building Society – Indirect Associative Discrimination

Ms Follows had been employed by Nationwide Building Society as a Senior Lending Manager and for the last 7 years had been home-based allowing her to look after her disabled mother.

As a result of a re-structuring exercise the society decided to reduce the overall number of Lending Managers and stipulated that those to be retained must be office-based. As a result, Ms Follows made a claim to the Employment Tribunal of unfair dismissal, indirect associative discrimination and indirect sex discrimination.

The tribunal upheld all of these claims against the Nationwide on the basis that the stipulation about office working put Ms Follows at a disadvantage because of her association with her disabled mother and that her dismissal had taken place without reasonable steps being taken to avoid that disadvantage.

This is the first time that a claim of indirect associative discrimination has been upheld since the introduction of the legislation in the UK.  

Proposed Flexible Working from Day One

In business principles, contracts, Employment law, family, government on September 27, 2021 at 10:47 am

The Government has launched a consultation into changing current flexible working legislation. This is open until 1 December 2021. Its proposal is to make the right to request flexible working from day one of employment.

Its aims to bring more employees in to the scope of the legislation and believes it will benefit productivity, motivation, retention and help attract more talent to organisations.

Its proposal is to introduce measures to help make flexible working the default, unless employers have good reasons not to. The consultation will also assess whether the current 8 business reasons for refusal are still valid. The process of managing flexible working requests and the time scales will also be assessed. There is also consideration to allow employees to submit more than one request per year, which is currently all they are entitled to do.

We will await the outcome of the consultation and if the proposal is approved we can assist you with amending your current policy within the handbook to ensure you continue to be legally compliant.

Until then, all current rules and processes will remain in place as usual.

Managing Holidays

In absence, contracts, holiday, Uncategorized on September 27, 2021 at 10:38 am

Holiday management is often overlooked, and the end of the holiday year brings a raft of requests from employees trying to use their holiday up or risk losing it. This year has also been made somewhat more complex with furlough leave and the government allowing the right to carry over the first four weeks of annual leave into the next two leave years; this applies where it was not reasonably practicable for the leave to be taken.

You should ensure that an employee is able to take as much of their leave as possible in the year to which it relates. Ideally you should keep a track on how much leave all of your staff have left to take at regular intervals throughout the leave year and remind them that they should book their leave otherwise they may lose it.

You can also require employees to take leave on dates that are convenient for you. Again, this can either be set out in the written contract of employment e.g. an annual shutdown or at other times during the year. However, if dates are not stipulated in the contract you must give employees notice which is equal to twice the length of the leave in question e.g. a minimum two weeks’ notice for one week’s leave. Many employers did do this during periods of furlough leave to ensure holidays were being taken and a problem was not building up.

Now is a good time to remind employees to book any remaining holiday to help ensure you do not have to refuse requests or allow carry over to another holiday year.

Next year also brings an additional bank holiday to mark the Queen’s Platinum Jubilee on Friday 3 June. Additionally, May Day will be moved to Thursday 2 June, in effect creating a four-day weekend for the event. 

Whether employers will need to permit staff to take this day will depend upon their contract of employment and if you need any assistance with this, please contact your consultant.

Changes to employment terms and conditions

In contracts, covid-19, Employment law on September 1, 2021 at 9:15 am
In normal circumstances it is not possible for the employer to make changes to the employment arrangements without a) a contractual clause providing for changes or b) the consent and agreement of both parties.
 
Sometimes a working arrangement changes and nothing is written down or recorded about the change. The written particulars of employment are important. If there is a conflict arising from what the contract requires the written terms will normally prevail. However, there is a long-established situation called “custom and practice”. It is possible for something that is done regularly and consistently over time, that is notorious (i.e. known to all) to be incorporated into a contract. 
 
There is much said about “hybrid working” and some academics and employers have stated that work will never be the same again. One survey report identified that circa 40% of employees will leave their current employment if they are unable to work remotely. Other labour market reports warn of significant churn in the employment market with employees stating an intention to leave their current workplace. The bigger debate around this is outside the scope of this article.
 
There is no single solution for ALL employers here. Some work lends itself to homeworking and variable hour working and other work does not. Most job roles have multifaceted elements to them meaning individual job roles are more blended and incorporate technology tools more than even 5 years ago.
 
We advocate discussion and an alignment of expectations. Flexibility has the potential for benefits and performance improvement. The other side of the coin is managing remote working is challenging and people benefit from meeting for working collaboration and also social interaction. It’s all too easy to say well let’s have the best of both worlds and mix it up a little.
 
We suggest when exploring flexible working, keep an eye on any core irreducible minimum involvement in office attendance, in person meetings, client service delivery and inter-employee / intradepartmental collaboration. A further period of temporary working and review could help all concerned arrive at the best working solution. Define what the new working relationship looks like in specific terms.
 
Your new agreement working agreement will be either a temporary conditional change subject to review of a permanent change to terms and conditions. So, write this down and record it as an amendment to terms and conditions of employment.
 
I opened with changes to the employment contract requiring consent and agreement. There is an exception to this. An employer may be faced to a compelling reason to reorganise the workforce in response to new ways or methods of working. Faced with reduced demand, a business may be compelled to “fire and rehire”. This term surprises many people and suggests that employment contracts can be torn up at will.
 
This process involves consulting with employees and serving notice of termination for the current job and offering new work on different terms of engagement. The strategy is not without risk, if the employee doesn’t want to work on less favourable terms, they may decide to claim they have been unfairly dismissed, even start under the new terms and bring a claim against the employer for the loss of the first job.
 
Generally speaking, if the majority of the workers agree to be engaged on new terms, rather than have no job at all, this points towards a reasonable and fair process. Should a group of employees be retained in employment, perhaps on reduced hours, rather than being made redundant this process may serve a useful purpose. The employer in this process is not selecting those to retain but applying equally the arrangement to the whole group of employees.
 
The government has commissioned a report from ACAS on the ‘fire and rehire’ practice to consider if the process is being abused. The practice has been open to employers for years. The conclusion is that there is nothing in the report to recommend any legal reform. Perhaps the timing of this report is unhelpful as in reality the furlough scheme has mitigated the use of the strategy from March 2020. Before the announcement of a ‘furlough scheme’ at half past five on a Friday afternoon, fire and rehire was perhaps the only available alternative for many businesses. From the end of September 2021 this may well be the only option available together with compulsory redundancies.
 
Key Action Point
The end of the Job Retention Scheme may well lead to a need for employment contracts to be varied by a written agreement to reflect working hours, the place or places of work and any fundamental changes in duties.  

Sleep-in Payments Ruling

In contracts, Employment law, pay, Uncategorized on March 23, 2021 at 9:32 am

The Supreme Court has ruled that care workers are not entitled to national minimum wage for ‘sleep-in’ shifts. This follows appeals in the cases Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home).

The court referred to a recommendation first made in 1998 by the Low Pay Commission, and accepted by the government as part of the National Minimum Wage Regulations 1999, that sleep-in workers should receive an allowance and not the NMW unless they are awake for the purposes of working. The same recommendation was also included in the National Minimum Wage Regulations 2015.

It was however made clear that this ruling only applies to shifts where an employee is expected to sleep during their shift, which the claimants in this case were.

Making Flexible Working Work

In contracts, covid-19, family, Uncategorized on March 16, 2021 at 11:03 am

Flexible working arrangements are now helping to keep many businesses operational amidst restrictive coronavirus regulations. Many companies that once thought flexible working arrangements could not work for them, are now functioning with remote working and flexible working hours. The picture is very mixed. At one end of the spectrum Microsoft has decided that some jobs will no longer return to the office. This is diametrically opposed by Goldman Sachs saying that home worker is “a temporary aberration” that does not fit their dynamic interactive culture.
 
In our experience there is a place for homeworking. For the majority that is not full time but a portion of the working week. The “closed-minded” approach of an employer may now find some kickback!
 
This can include reduced stress to better engagement. It is recognised that employees able to achieve a work-life balance are more likely to be happier and more productive at work. It could be that it’s simply different working hours or some days working remotely. There are recruitment and retention benefits too. Opportunities for flexible working is likely to be a question from candidates in the future and some employees may start to seek out an employer who has a flexible working policy in place.
 
However, we suggest that now is the time for employers to assess potential benefits as part of the inevitable excess of re-examined job roles and functions upon return to the workplace post-Covid and in the foreseeable future.
 
There will be some compliance issues: working hours are subject to the Working Time Regulations. A change in location must be preceded by a health and safety risk assessment in respect of that workplace and equipment being used.
 
A foundation of trust is also needed for flexible working practices to be effective. For example, remote staff or out-of-hours working can mean less day-to-day visibility. Staff surveillance software is available, but this may undo all the good that flexible working can achieve and does not always make for a good relationship between the parties.
 
Also, consideration needs to be given to the impact of changing working procedures for some that can impact significantly on others, from employee workflow to client relations.
 
Just because a working pattern has been in place since lockdown, it is not necessarily the best thing for your business. It might be, but it might not. The sooner steps are taken to have those discussions the “returning” or “non-returning” workers the better! 
 
Changes that you agree to should improve and not hinder your business in the long run. If you wish to discuss how flexible working might work in your business, email us to book a flexible working strategy call. 

2020 Minimum Wage Increase & Updates to Holiday Pay

In contracts, government, holiday, pay on January 16, 2020 at 10:45 am

With the Autumn Budget held back by December’s General Election, an announcement of the new minimum wage rates was made on New Year’s Eve.

National Living Wage for 25-year olds will increase from £8.21 to £8.72 representing an increase of 6.2%. The Treasury has said that the increase equated to an increase in gross annual earnings of around £930 for a full-time worker on the current minimum rate.

The new rates are recommended by the Low Pay Commission, an independent body that advises government on the national living wage and national minimum wage.

The Government has pledged to increase the National Living Wage to £10.50 by 2024 but has added a caveat allowing for economic conditions.

The changes don’t come into effect until April 2020 but with the rise being significant, businesses which pay at or near the NMW will need to budget accordingly.

The table below gives the all detail by age bracket along with the new annual salary for employees across a range of full-time hours.

Min Wage table

Chancellor Savid Javid will announce his first budget (Spring Statement) on March 11th which will contain further updates to statutory rates.

Holiday Pay
New regulations will take effect from April 2020 to ensure workers in seasonal work or with abnormal working hours receive the paid holiday to which they are entitled.

If a worker has been employed by their employer for at least 52 weeks, the holiday reference period is expanded from 12 weeks to 52 weeks. Where the employment has been for less than 52 weeks, the holiday reference period is the number of weeks for which the worker has been employed.
If you need guidance on any of the above, please get in touch with your consultant or contact the Rob Bryan Associates office: 01462 732444 www.robbryanassociates.org.uk

Carers Rights Day – how can you support your employees who have caring responsibilities?

In contracts, Employment law, Equality on November 21, 2019 at 10:15 am

Thursday 21st November marks ‘Carers Rights Day’ – an opportunity to recognise all that carers do, as well as for employers to find out more about how to support carers in the workplace.

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Research by Carers UK and Age UK shows the importance of employers engaging with employees who are carers. One report found that 10 hours of caring per week can make it a significant challenge to stay in work. Research also tells us that:

  • 600 people a day leave the workforce to provide care for a loved one, whether that’s a spouse, parent, child or other dependant.
  • 5 million people juggle caring responsibilities with paid work.
  • 64% of those caring for parents are in the workforce. And the numbers are increasing as the UK population ages.

Those in their late thirties to fifties, known as the ‘sandwich generation’ may be balancing caring for elderly parents whilst also bringing up children and working. They are also likely to represent a higher proportion of those at the peak of their profession – talent that businesses want to retain.

According Carers UK, leading companies, such as Centrica, have demonstrated strong business benefits to supporting carers and have suggested that, cumulatively, UK companies could save up to £4.8 billion a year in unplanned absences and a further £3.4 billion in improved employee retention by adopting flexible working policies to support those with caring responsibilities.

How carer-friendly is your business? Do you have policies in place to support those who wish to more flexibly?

For short term temporary arrangements an employee may seek time off for dependants. A dependant of an employee is defined in the legislation as one of the following:

  • husband or wife or partner, child, parent, someone else who is regarded as part of the family and lives with an employee (but not tenants, boarders, lodgers or employees)
  • anyone else who is reliant on an employee in emergency situations.

The length of this leave is meant to be short and no longer than two days in most situations. It can be longer in some circumstances. An employer is not permitted to require an employee who has requested or taken time off for dependants to rearrange their working hours or make up the time that has been lost. What is reasonable time of will depend on the specific circumstances. An employment tribunal case considered an employee who had taken a total of seven days spanning six instances of absence within a 12-month period was reasonable.

Trial periods, temporary changes or even career breaks / sabbaticals in support of a retaining a skilled and knowledgeable worker who would otherwise be lost to the business could be a possibility. However, employers should seek advice from a consultant if you intend to amend terms or have a break in the relationship as continuity of employment needs to be specifically addressed as well as arrangements to return back to previous terms and conditions if that is the intention.

For permanent changes to the working relationship an employee can make a request for flexible working.

In June 2014 changes to the flexible working arrangements broaden to all employees. Previously eligibility was restricted for caring for a child or an adult in need of care. The first arrangements for flexible working in 2002 were restricted only to children under 6 years of disabled children up to 18 years of age. There was no provision for adult care. Employees, part time or full time, with 26 weeks of service, have the right to request a flexible working arrangement.

The flexibility is commonly around times of work, or days of work; however, this can also include the type or pattern of work, or even the place or work. The employer has a duty to consider the request in a reasonable manner and respond in writing as soon as practically possible no later than three months after a formal request. An employee making a request has protection from any dismissal or detriment due to their request being made.

If you would like help reviewing your employment policies, please get in touch – 01462 732444  www.robbryanassociates.org.uk 

For further reference: https://www.employersforcarers.org/resources/research/item/1460-juggling-work-and-unpaid-care-a-growing-issue

Government announces reforms to protect agency and gig economy workers

In contracts, Employment law, government, workers on December 19, 2018 at 10:12 am

Reforms to employment law are to be introduced which will better protect agency employees, gig economy workers and those on zero-hours contracts.

In response to the findings of the Taylor Review of modern working practices, business secretary Greg Clark will introduce legislation to:

  • close the loophole which allows for agency workers to be paid less than permanent employees
  • ensure all staff are given a statement their rights from the first day of employment, including eligibility for sick and paid leave
  • give the right for employees who don’t have a fixed working pattern to request one once they have completed 26 weeks with an employer
  • increase the maximum fine handed out by employment tribunals to employers who are found to have shown malice, spite or gross oversight from £5000 to £20000
  • extend the holiday pay reference period in order to reflect the work patterns of seasonal staff

The business secretary called the reforms the “largest upgrade in workers’ rights in over a generation” and said that they would be key in building a fair and productive workplace that reflects the reality of modern working practices.

However, there has been some criticism that the reforms don’t go far enough to address underlying issues, and that controversial zero hours contracts haven’t been banned.