It has been reported that Argos are paying an extra 80p per hour to their staff on minimum wage as a Christmas bonus on the condition, that they do not take any time off sick from work in the lead-up to the busy Christmas season.
Could such an incentive lead to many employment tribunal cases being taken out against Argos?
Some employment lawyers are pointing out that it could be discriminatory against disabled employees, who are more likely to require time off and lose their entitlement to bonus. On the face of it, this looks like indirect disability discrimination.
Indirect discrimination is applying a “one size fits all” policy to all employees, but that has a greater impact on a particular group, such as the disabled.
Agency workers at Argos’s Basildon depot have been told that they will not benefit from the 80p per hour uplift if they call in sick even once.
Whether this is discriminatory or not depends on whether employers can avail themselves of the “justification defence”. This applies where the practice is in pursuit of a “legitimate aim” (which reducing staff absence clearly is) but also “proportionate” (which means no more discriminatory than necessary). It is this second limb of the test that some employment lawyers believe the scheme will probably fail, because the cost to the employee is an all-or-nothing one, not according to a sliding scale.
We think that the scale doesn’t have to be perfectly linear – so you wouldn’t need to say you lose 1% of the bonus for every 1% of absence. But, equally, the ability to lose 100% of the bonus for 1% of absence is apparently overkill. We would have advised Argos to apply the bonus penalty in, say, windows of 20% or 25%.
The risk is particularly the case for staff members who may be suffering from chronic illnesses. They might see the bonus scheme as not being within the Christmas spirit at all!
Illustration courtesy of Quinn Commendant, licensed under CCRead More
An employment law case heard in the London employment tribunal could have important ramifications for the business models of companies like Uber, Deliveroo and Yodel.
Uber drivers have been classed as workers rather than self-employed. They will be entitled to holiday pay, the minimum wage and unpaid rest breaks. Taxi costs will go up for passengers.
The GMB union described the decision as a “monumental victory” but customers won’t see it this way. Uber said it would appeal
There is no easy way for employment lawyers to tell the difference between the two. Judges essentially apply a “walks like a duck / quacks like a duck” test on a case-by-case basis. They ask whether the features of an employment relationship or an independent contractor are there.
The modern business model relies on devolving as much of the business model to their staff as possible, such as letting them choose if/when to work, and absorbing the risk of whether there is work. For example, Uber pays more to drivers for driving at times of peak demand.
The tribunal said “The notion that Uber is a mosaic of 30,000 small businesses linked by a common ‘platform’ is to our mind faintly ridiculous.”
“This is a monumental victory that will have a hugely positive impact on drivers,” said Maria Ludkin, legal director at the GMB, which brought the case.
The quacking duck
Here are the features of the contract between Uber and their drivers that, in the opinion of the tribunal, make it look more like an employment contract, in the eyes of employment law:
- Uber has sole and absolute discretion to accept or decline bookings
- They interview and recruit drivers.
- They control key information like passenger contact details and the destination. Drivers don’t even know where they are going until the trip starts.
- Though drivers can choose when to work, they can’t turn down trips.
- Uber sets the route.
- They fix the fare and drivers can’t negotiate a higher one (as an independent contractor would be able to).
- They impose conditions such as the type of car that drivers must use.
- Uber subjects drivers to performance management and disciplinary procedures.
- Uber decides issues such as rebates without involving the driver.
- Uber, not the driver, takes on risk of loss such as in the case of fraudulent passengers.
- Uber handles complaints by passengers.
- Uber can change the drivers’ terms unilaterally.
- Drivers are not allowed to contact passengers after rides (a contractor would normally be able to contact his clients).
- Using terms like “on-duty”, “off-duty” and “our vehicles”.
The future for employment law
This was a case by two drivers, James Farrar and Yaseen Aslam in one employment tribunal. However, the two are on the same contracts as tens of thousands of drivers around the country. could pave the way for big changes in the economy but until it is appealed there won’t be a ruling that affects other drivers.
The case could pave the way for big changes in the economy but until it is appealed there won’t be a ruling that affects other drivers, employment lawyers report.
By Lily WildeRead More
From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Albert, a mechanic and his disciplinary.
Albert had had a stand-up shouting match with his manager within earshot of customers waiting for their MOTs. It turned out that a month ago, he had forgotten to tighten the nuts on a customer’s car before it left the workshop, though fortunately no accident had taken place as the garage had rung the customer on his mobile and told him to stop driving immediately. They hadn’t told Albert about this or disciplined him at the time.
The manager was adamant that Albert had to go. They came to us for help on 14 October. We asked how much service Albert had. The garage wasn’t sure but gave a list of dates from their records, which included 19 October two years ago (when the employment contract was signed by the employee), 22 October (when he started work), 21 October (date he was set up on the payroll), 20 October (date written in the contract). We were instructed that the date in the contract was probably wrong. It was a mess.
The exact date mattered because an employee gains rights to sue for unfair dismissal after two years. Or at least that’s what people – even employment solicitors – often think, but in reality it’s two years less the statutory notice period of one week, which means 103 weeks. The date mattered. If Albert had less than 103 weeks’ service we could safely dismiss; if 103 weeks and one day, we might be in trouble.
We thought we would probably win a case for unfair dismissal, though we couldn’t be certain whether a single incident of gross misconduct – shouting in front of customers in an industrial environment – would fairly be seen to be a sacking offence. And even if they eventually won the case it would be a costly victory in legal fees.
The company had shot itself in the foot by ignoring the far more serious health and safety related misconduct. It would be unfair to rake that up after the event.
One thing was clear: we didn’t want to start a fair disciplinary investigation and a dismissal process, because that would definitely take Albert past his two-year point.
Happily, it turned out that the date he actually started work was 103 weeks to the day…tomorrow. He was one day shy of reaching the critical date.
We did our calculations several times. On paper, with a calendar, with a calculator. We worked out that the garage had to end the suspension and dismiss that same day if they wanted to guarantee that Albert would have no comeback.
But we said it was crucial that they make contact with Albert that day. A dismissal doesn’t take effect until the employee knows about it. If Albert didn’t know he was sacked until after midnight, he would accrue his employment rights. We considered sending a text, dropping a letter round in person and various other means of communicating the dismissal in a way that Albert couldn’t dispute.
In the end we invited Albert in that evening and he turned up to a meeting, at which he was sacked on the spot. If only Albert had lain low for a few hours, he would have had some kind of case. Now, if he brings an employment tribunal claim, it can be struck out quickly and cheaply.
The company now keeps better employment records.
*Our clients agree to the use of their stories but all names have been changed for anonymity
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In any workplace, employees will joke around with one other, forming friendships that allow spirited banter. While this is tolerable to many, others may find it to be unacceptable or even discrimination.
At what point does banter cross the line to harassment? Employers often face this question. Sometimes, it is only at the point when an employee raises a formal grievance or even leaves.
An extreme example of harassment in the workplace is Jimmy Savile. Female colleagues reported that they (and others) were harassed in the workplace but were afraid at the time to speak up.
It is natural that once you are comfortable enough around someone the relationship can evolve to comments about physical features, their way of talking and past events. These can be about relationships, it could be of a sexual nature, or about the football team they support.
In predominately male offices, women are subjected to unwanted sexual jokes. A TUC online survey reported that 32% of women had experienced unwelcome jokes of a sexual nature and comments of a sexual nature about body or clothes. More than a third of women who had experienced sexual harassment had also received unwanted sexual advances six times in their lives.
We at Hatton James Legal have seen an Italian employee claiming racial harassment because colleagues watching an England-Italy match ribbed their Italian colleague over his country’s “lazy” performance on the pitch. Although he was sacked for crashing a company lorry, his claim included all sorts of allegations about inappropriate workplace banter that had never been an issue before.
Discrimination law says that workplace banter becomes harassment when it is “unwanted” and any one of the following – “hostile, humiliating, degrading, intimidating or offensive”. This is such a wide definition that you could be forgiven for thinking that almost anything could cross the line. The employee has to prove that it was offensive to both him and to the reasonable person.
Since employees have different opinions as to what acquaints to a joke and harassment, which leaves the question – what can employers do?
Employers should use their handbooks to illustrate what they count as banter and examples of what constitutes harassment. Employees can then have no excuse for not understanding when their behaviour is out of context.
Having a simple word with the employee in question can resolve the matter simply. Employers should not be afraid to apply disciplinary procedures and give warnings as necessary. If the employer has taken all reasonable steps to stop employees harassing each other then they won’t be responsible, but compensation can still be claimed against the colleague.
Employers can only defend themselves against discrimination claims if they can show they take grievances seriously. They may face future tribunal requests for documents showing how they have handled previous complaints. Educating employees on harassment during induction training also provides employers with this defence.Read More
Breastfeeding at work is a controversial subject in this country, even among employment lawyers.
In Iceland, an MP recently breastfed her child while giving a speech in the chamber, and in Spain an MP did the same earlier this year, the issue is universal. However, most women do not have a choice: they have to go to work and also feed their babies. So how does the law support them?
In many countries, like France or the Netherlands, the law supports women who breastfeed in public and at work quite heavily.
UK law does not have specific, straight-forward legislation clearly stating the breastfeeding rights of nursing women. However, some rules do exist.
An European directive provided a set of guidelines on the matter. It led to UK regulations ensuring that breastfeeding women must have suitable facilities to rest within six months after the child’s birth. The term ‟suitable facilities” is not defined, but it can be assumed that the toilets cannot be considered ‟suitable”.
A pregnant employee should write to her employer declaring that she wishes to breastfeed at work. Her employer must then conduct a risk assessment. The Health and Safety Executive recommends that it is good practice for employers to provide a private, healthy and safe environment for breastfeeding mothers to express and store milk.
All employees have the right to request flexible working. Breastfeeding mothers should ask for flexible working hours, arranged around their breastfeeding needs.
Unfortunately there is little case law on the matter in England and Wales, but and Irish case of Squillaci is an example of a tribunal finding in favour of the mother. The judge found that the employee had suffered sex discrimination as her employer refused to let her continue to breastfeed her child for more than six months, despite the fact that the child’s health required breastfeeding for a longer period.
Because of the sexual role of breasts in society, there is always the risk for sexual harassment from colleagues. Equality laws mean that employers should be on the alert for this, as we describe elsewhere.
By Lily Wilde
Main image courtesy of Daria Chernova, licensed under CCRead More
The Brexit referendum left people with disabilities fearing that their opportunities in the workplace could come under threat. This is because many protections come from the EU, including disability discrimination. But there is still a large gap between the employment rate of the working age population as a whole and the employment rate for disabled people, which is less than 50%.
Being a part of the EU has made it easier for businesses to hire overseas workers than hire someone with learning disabilities because it can be more expensive to train those with mental disabilities and provide equipment to those with physical disabilities. Now that Britain has decided to leave the EU there will be more opportunities for British disabled people, who could be hired to plug in the skills gap left by EU workers.
In the UK there are many existing schemes to help those with disabilities get back into work such as Access to Work, Foxes Academy and the Government’s Disability Confident scheme. However, substantial cuts have been made to them. Employers generally want to hire those who are ‘ready-made’ as they require less investment. Lastly, not all businesses have the tools or knowledge to hire people with disabilities.
Brexit will be with us by 2019. Over the next few years, we could see employers increasing their efforts to hire those with disabilities and use them to plug the skills gap that will inadvertently come about due to the triggering of Article 50. could also understand the law that surrounds disability discrimination. That involves changing the way in which employment is structured, the removal of physical barriers and/or providing extra support for a disabled worker.
Employers should, more than ever, understand the law that surrounds disability discrimination. That involves changing the way in which employment is structured, the removal of physical barriers and/or providing extra support for disabled workers.
part of our Brexit seriesRead More
Note: a subsequent legal change has affected the accuracy of this material.
What do employment solicitors think of the Acas Early Conciliation procedures?
Claimants now have to contact Acas before bringing a claim, although they don’t have to let Acas actually contact the employer; they can just ask for the process to be closed immediately.
We at Hatton James don’t think that the Early Conciliation procedures provide a real substitute for dealing with claims.
Employment Tribunal claim numbers have been lower since conciliation and fees were introduced. 60% lower, in fact. The reason for the drop was probably the fact that hefty fees were introduced for lodging a claim and taking it to a final hearing – £1,200 for most claims.
We wrote an article after 18 months of their introduction. After a further 6 months, it’s time to spill the beans on our approach to them at Hatton James.
We suspect that many employees have wrongly thought that Acas Early Conciliation would bring about a successful end to their claim. Instead, they have been strung along by the employer who had no intention of settling. Some employees may have even have thought that the process was a formal adjudication of the dispute.
Many who ended their tribunal claim for a small sum at Early Conciliation or were put off by tribunal fees would have won at trial.
Just before the introduction of fees and Early Conciliation, about 10% of unfair dismissal cases that reached a judge were successful at a hearing.
If fees and Early Conciliation had been successful at deterring the weakest claims, we would have expected the success rate to increase as the weakest claims were weeded out. But we find the opposite to be the case. The success rate has dropped to 8% . Weak and strong cases alike are dropping out of the system.
We hasten to say at this point that the success rate of claims handled by employment solicitors is a lot higher than 8%, which includes a huge amount of claims brought by lay claimants who don’t know what they are doing.
Our strategy only includes taking the Acas Early Conciliation process seriously where the employee has a cast-iron case. Our experience is that employers need to be dragged to the negotiating table and shown the strength of the employee’s case. Often this can only be done after the claim is set out formally, the evidence has been presented and the claimant has had the opportunity to show his resolve.
Even where we have presented a cast-iron case to the employer, we have found that often they want to see whether the employee has it in them to issue a claim and put their money where their mouth is.
Acas remain on hand to assist with conciliating the dispute after the claim has gone in, so there is nothing to lose except the lodging fee by bypassing the early conciliation process and, in our experience, everything to gain.
By Jaspreet SanghaRead More
Employment lawyers in Birmingham and around the country have welcomed a recent Employment Appeal Tribunal (EAT) decision that highlights the dangers of contacting employees who have been on sick leave for a long time.
It’s a tightrope; employers should keep absent staff in the loop but not cause them distress by unwanted contact.
In this case of the EAT held that an employee was constructively dismissed because of the content of a letter she received from her employer while she was on sick leave.
The dangers include a claim for unfair constructive dismissal because the contact breaches the implied term that (effectively) the parties should not act unpleasantly towards each other.
The usual situation that is relevant is when an employee is off with a mental condition including depression or anxiety.
The employer in this case sent two letters to the employee, who responded saying that she was in “no fit state to communicate without breaking down”.
A month later, they sent another letter, proposing a meeting. But it wasn’t a meeting about her absence. They were trying a different tack – criticising her performance. But none of the complaints were urgent and most had already been dealt with. It was a cruel, tactical letter.
The employee resigned and claimed constructive dismissal and unfair dismissal, disability discrimination, harassment and other claims.
She won her claims for constructive and unfair dismissal.
This is a case of particular interest to two of our Walsall clients, who are in the same position at the moment; off sick and wanting to resign. The case emphasises how careful employers and HR need to be in this kind of situation.
Employers need to do some communicating with an employee during their absence; after it would be unreasonable to make them feel ignored. A common complaint is that they feel left out of the loop.
Employment lawyers warn employers to keep contact to a minimum and stick to their return to the workplace. Disciplinary and performance issues should not be broached, nor should other work-related issues unless they are urgent.
It is sensible to check that absence policies reflect this, to avoid managers making mistakes. In fact, it is good practice to ensure that employees who may be suffering from mental illness are only contacted by a named person, ideally in HR.
From the employee’s point of view, if they are wanting to leave with a potential claim for unfair constructive dismissal it is important to know that remaining off work sick is rarely helpful because the time away from the office reduces the likelihood of a breach of contract taking place. Often, for the sake of their health they should stay off sick, but for the sake of their claim they should get back to work.
Case report: Hodkinson v Private Medicine Intermediaries Ltd
In a move that employment lawyers are watching carefully, Theresa May has announced that we will start the Brexit process in early 2017, it has been reported.
She means that she will trigger article 50 of the Lisbon Treaty by 1 April next year. This article reads (we paraphrase):
- Any Member State may decide to leave the EU
- It does this by telling the European Council. The Council shall then negotiate the arrangements for withdrawal after obtaining the consent of the European Parliament.
- The State is no longer bound European treaties when the arrangements are agreed, or two years after they start, whichever comes first (unless both parties agree to extend the negotiation period).
- The State’s representative on the Council (Boris Johnson) can’t participate in the Council side of these negotiations.
- If the State changes its mind and wants to rejoin, it has to re-apply from scratch as a brand new member state.
At some point in that process, the UK will repeal the 1972 European Communities Act with effect from the leaving date. We will be free from the EU by Spring 2019, before the next General Election.
Nobody knows what will happen to the laws that were made in Europe and that the Government will no longer be forced to follow. It is fair to say that Whitehall civil servants, employment lawyers and large employers are jittery.
Prime Minister Theresa May told the BBC today that her announcement was aimed at giving greater clarity about the timetable, to give stability to workers and businesses.
The Government has let it be known that Brexit Secretary David Davis will shortly say that when we leave, employment rights will not be eroded.
“We still do want to have a good relationship with Europe and the European Union” said May, but reports are that we are not well-liked by our EU counterparts and that with the UK gone, they will find it easier to pass legislation, much of which is left-wing and pro-worker.
Employment lawyers, including this firm report that their exporting clients are putting up prices by 8%-10% to take into account the effects of the currency shift. Because of that, and the inevitable import tariffs to sell to the EU, we expect that to have an effect on both their sales and their employment figures.
She recently said “Existing workers’ legal rights will continue to be guaranteed in law – and they will be guaranteed as long as I am Prime Minister. We’re going see workers’ rights not eroded, and not just protected, but enhanced under this government.”
(Image courtesy of Policy Exchange, licenced under CC)
Part of our Brexit seriesRead More