Note: a subsequent legal change has affected the accuracy of this material.
A very large percentage of respondents in tribunal cases don’t pay their employment tribunal awards. This rarely, if ever, happens to Hatton James Legal as we vet our opponents so that our clients don’t waste their money.
Where an employer fails to pay the required sum on time, an enforcement officer can issue a “warning notice” to the effect that a financial penalty will follow unless a specified amount is paid by a set date, at least 28 days from the warning notice date.
Where the employer fails to comply with a warning notice, the enforcement officer may issue a “penalty notice” imposing a financial penalty, which will be 50% of the unpaid amount but no more than £5,000. If the employer pays the outstanding amount and the financial penalty within 14 days of the issue of the penalty notice, the penalty payable is reduced by 50%. The money from the financial penalty does not go to the successful claimant but the government.
Since April 2016, tribunal enforcement officers have been able to impose financial penalties on employers who fail to pay employment tribunal awards made against them. Given that it costs up to £1,200 in employment tribunal fees alone to bring a claim, it is ever more important to ensure that applicants receive the awards to which htey are entitled. The Commercial Secretary to the Treasury, Baroness Neville-Rolfe, has confirmed that since the introduction of the penalty regime, 60 penalty notices have been issued, confirming that htis number comes as a result of 164 warning notices for defaulting employers. This has led to an amount of £83, 000 being recovered.
Financial penalties are a bid to enforce payment and serve as a warning to other employers to comply with the employment tribunal order to pay compensation to the employee. However, the figures indicate that some employers are taking a laid-back approach to paying employment tribunal awards on time. For this reason, employment tribunal judges are exercising this power without hesitancy and it seems likely that this approach will continue in the future as the government continues to encourage compliance.
By Gina Mukova
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 Grace from Birmingham, her dismissal for gross misconduct and the lessons to be learned from it.
Grace worked for sixteen years as a PA at a well-known company. In January 2014 she was dismissed for gross misconduct after an investigation into the theft of £40,000. She was adamant that she was innocent and backed this by paying privately to challenge the employer’s decision to dismiss her. In terms of evidence the actual perpetrator had access to the petty cash tin and could make withdrawals using her name. All the withdrawals were logged in a petty cash book and nowhere else. We understand that the company has now tightened its petty cash procedures.
The firm found her guilty of 30 thefts adding up to £40,000 and she was made subject to a dismissal for gross misconduct. Two junior colleagues gave statements saying that she had asked for petty cash on numerous occasions between 2013 and 2014. Grace strenuously denied the allegations but in face of two witnesses saying she was responsible for all the withdrawals it was always going to be an uphill struggle to win the case. The company’s only record of the transactions was in a cash book. Unfortunately Grace lost it when she took it home to see who had been forging her signature when withdrawing the cash, having been told that an audit had uncovered the financial irregularities. This led to the investigation into her involvement.
Understandably, Grace felt under immense pressure and became emotional during the investigatory and disciplinary meetings. She did not manage to properly explain her case to the best of her ability and had lost the key piece of evidence. The chances improved when she realised she could show that on some of the days when money had been withdrawn she was on holiday. The company however showed that some of these were half days off.
If Grace had kept better records and had not lost the book she would have stood a better chance of successfully answering to the allegations and ultimately winning her tribunal claim.
Her case highlights the importance of evidence and why employees should take care with petty cash records, especially when working a finance department. If the employer’s record-keeping is poor, employees should keep their own records. Confirming things by email means that there will always be a paper-trail, which may exhonerate you down the track.
By Naomi Vlad
Image used under CC courtesy of SuperRabbit
Pay discrimination is slowing down – womens pay is catching up with the pay of men, albeit at a snails pace. Under current social policy (European in origin but that won’t change after Brexit), all employees should be treated and paid the same, without pay discrimination. However, the gender pay gap means that woman earn less than men throughout their career. The Fawcett Society argues that the main reason for gender inequality in the workplace is that women’s work is not valued. A major part of this because is because women work in sectors that require less skills, e.g. childcare and administrative work. The current gap for full time workers is 13.9%. We have seen changing attitudes towards equal pay and the introduction of the living wage, now £7.20 an hour, However, there is higher proportion of women working full-time in occupations such as care work, cleaning, administrative and reception work, which pays less and there is poor career progression, all of which leads to pay discrimination. Although the gender pay gap is at a low, the rate has slowed down. The hourly pay of full-time work for women is now 9.4% less than that earned by men. In 2015 it was 9.6% and 17.4% in 1997 according to Office for National Statistics. The policies of individual employers in regards to equal pay might have had an impact, as might government initiatives to make companies reveal the number of men and women in each pay range. The glass ceiling operates as a barrier for women to access higher jobs and salary and as more women work in lower-paid jobs than men, this barrier is still in place. In addition, the cost of childcare has risen under the current government. From 2018, businesses that employ more than 250 workers must publish how much staff are paid, broken down by sex. Following David Cameron’s vow to “end the gender pay gap in a generation“, Theresa May has promised to create a “Britain that works for everyone” and in particular to tackle pay discrimination.
By Jaspreet Singh
Image used under CC courtesy of Katrina ElsiRead More
One of London’s most historic financial institutions, Lloyd’s of London, has given a shock to employees who like to enjoy some lunchtime with their alcohol – disciplinary proceedings!
The institution has banned its 800 employees from drinking between 9am and 5pm from Monday to Friday which includes the lunch break.
A Lloyd’s internal memo to staff acknowledges that “the London market historically had a reputation for daytime drinking”, but that the time for change has come. This comes as a result of around half of the disciplinary action cases in the past 12 months being found to relate to the misuse of alcohol.
The ban marks a wider culture change among City workers. The price for office-hours consumption of alcohol is disciplinary proceedings for gross misconduct and perhaps dismissal.
The ban will apply to the firm’s employees, but not brokers or underwriters from other corporations based at the insurance market in Lime Street. This measure was received with backlash from workers who state that they were not consulted and the ban is not necessary as they can drink “responsibly” during work hours. Comments from employees include for example, one worker asking: “Will we be asked to go to bed earlier soon?” Another questions whether employees face being breathalysed at work to enforce the crackdown. Another worker further stated that: “Lloyd’s used to be a fun place to work. Now it is the PC capital of the world where you can’t even go out for a lunchtime pint anymore.”
Support for the ban can be seen from a market commentator, David Buiks, who said that there is more competition between workers as banks and financial firms look to cut back on staff, meaning staying sober is more important than ever before. He added, “of course it is more than made up for at night when the wine, spirits and beer flow like Victoria Falls.”
The ban is designed to align Lloyd’s of London with many firms in the market. For example, insurer Hiscox already has a policy in place that forbids staff consuming alcohol during work hours. The question is how far an employer can police what workers do when they are outside the office, in their own time. In light of this, QBE has advised staff not to drink but it has stopped short of an outright ban. Despite criticism from employees, the prohibition stands because as the Lloyd’s of London staff memo stated “a zero limit is simpler, more consistent and in line with the modern, global and high performance culture that the firm wants to embrace.”
Our view is that a dismissal for failing to respect the alcohol disciplinary rule would very potentially be unfair and we look forward to the first cases to come from this.
By Gina Mukova
Image used under CC courtesy of Phillip CapperRead More
You may have seen this BBC News article about a women-only Cambodian taxi service ‘Moto Girls’ and we bring you the employment law implications of similar businesses in UK employment law.
Female members of the public face greater risk of violence and other crime both inside and outside the home. This is why there are women-only train carriages in Japan, India, Egypt, Iran, Brazil, Mexico, Indonesia, the Philippines, Malaysia, and the UAE.
“Tourists like girls who drive slow, not weave in and out of traffic” said a hotel customer of Moto Girls.
Of courses, this mixes up driving skills with gender, which is the definition of prejudice.
Nevertheless, 30% of people would rather hire a female tradesman (ahem) if they had the choice, according to an insurer’s survey. The reasons given ranged from the feeling that women have better attention to detail (66% of respondents) to feeling safer around them (54%), punctuality (46%) , better customer service (45%) and better multi-tasking (42%).
This is a funny form of ‘egalitarian’ sexism. 80% of people thought that men could do just a good job as women in traditionally female roles such as child caring, beauty or cleaning.
But businesses are not allowed to choose the gender of their employees just because the client base prefers it. If society has a particular expectation, employment law is there to change that expectation.
Because sex discrimination laws prevent recruitment policies that only accept one sex or the other, gender-specific companies are rare, as the removal company Van Girls found out when they failed to secure Dragon’s Den funding. “Our largest demographic is couples who are expecting a baby very soon or who have young children. But there is a real mixture. Men, women, couples, the elderly or their children and the LGBT community all seem to like the idea“, says its business owner.
It would be against employment law to only employ women removers, so she can’t admit that. She can only say that she happens not to have any women removers and that she employs a male mechanic and accountant.
Skating carefully around the employment law implications, she says “Our brand name represents how the company started and what it will always be able to offer, but doesn’t mean that men who wanted to work for Van Girls wouldn’t be given a fair chance to form part of a mixed crew, if they matched our ethos and fulfilled our selection criteria“.
Employment lawyers have little experience of this type of practice, since employment law only allows specific gendering of employees when it is a necessary part of the job, which judges construe very narrowly. An acting role for a female character would certainly benefit from the exception. And we have seen it used (but not tested in court) by services counselling troubled children, who may not want to speak to a man/woman for understandable reasons. We think that it is overwhelmingly likely that a would-be male bra-fitter would not be given legal protection if rejected for a job.
This is despite the fact that the legal test of what is a “necessary part of the job” is really just another way of saying “in what areas should employment law let customer preference win out?“. We know that men can play women’s roles if allowed – see Widow Twankee(!) but employment law agrees that a director should not have to ask an audience to suspend disbelief in this way.
Likewise, it is only customer embarrassment and the social custom of sex-segregated privacy about our bodies that makes a male less wanted by customers as a bra-fitter. Judges choose to allow this to continue rather than to use employment law as a tool to change this societal expectation, whilst denying the tool to, say, a golf club that wants to remain men-only because of male golfers’ preferences.Read More
MPs are calling for employers to be fined firms for sex discrimination in dress codes.
The government must ban sexist dress rules at work that discriminate against women, a committee of MPs has recommended.
The Women’s and Equalities committee began an inquiry following the case of Nicola Thorp, who was sent home from a receptionist’s job with PWC for not wearing high heels. She refused to obey the then rules of her employment agency, Portico, that she should wear shoes with heels that were between two and four inches high.
She argued that wearing them all day would be bad for her feet and that her male colleagues were not asked to follow similar rules. “This may have started over a pair of high heels, but what it has revealed about discrimination in the UK workplace is vital, as demonstrated by the hundreds of women who came forward via the committees’ online forum” Mrs Thorp said. She added: “The current system favours the employer, and is failing employees“.
The committee received reports of women being told to dye their hair blonde and wear revealing clothes at work, such as shorter skirts.
Her parliamentary petition on the issue gained more than 150,000 signatures.
The committee said the Equality Act 2010 should ban discriminatory dress rules at work and that but in practice the law is not applied properly to protect workers of either sex. Chair of the Petitions Committee, Helen Jones MP, said: “It’s clear from the stories we’ve heard from members of the public that Nicola’s story is far from unique.” It said that discriminatory dress codes remain commonplace in some sectors of the economy.
The MPs report recommends a publicity campaign to ensure that employers know their legal obligations that workers know how they can complain effectively. But its key recommendation is that the existing law should be enforced more vigorously, with employment tribunals able to apply bigger financial penalties.
A government spokesperson said: “No employer should discriminate against workers on grounds of gender – it is unacceptable and is against the law. Dress codes must be reasonable and include equivalent requirements for both men and women.
By Naomi Vlad. Image used under CC courtesy of Veenya VenterRead More