December Employment Law Bulletin

Published byMartin Stephen

21st December 2016

• Gender Pay Gap Reporting
• Grange v Abellio London
• Gorka Salaberria Sorondo v Academia Vasca de Policía y Emergencias
• Bellman v Northampton Recruitment

Welcome to this month's Employment Briefing, which looks at liability at Christmas parties and other work functions, age discrimination, legal entitlement to breaks and the gender pay gap.

If you have any questions about any of the topics covered or would like to meet with our Employment team please call Martin Stephen on 0141 248 3434 or email mss@wjm.co.uk

Gender Pay Gap Reporting

Looking ahead to next year, the Government has unveiled the final version of the Gender Pay Gap Reporting Regulations. Due to come into force in April, the new rules will mean that companies with 250 plus employees will be required to produce annual reports on the Gender Pay Gap in their business. The first reports will have to be published by April 2018.

Having previously published draft regulations, the Government has taken soundings and feedback from various stakeholders in producing the final version. Key requirements of the new system will include:

• Having to publish both the mean and median pay based on the entire workforce;
• A requirement to publish how many men and women are found within each quartile of pay in the workforce;
• Disclosing the difference between mean and median bonus payments between male and female staff as well as the percentage of each actually in receipt of a bonus; and
• Posting the report on the company website each year and leaving it there for at least 3 years.

At this stage, no criminal or civil penalties will be imposed on employers based on the gender pay gap (although the Government has not ruled this out as an option for the future). However, the Government is proposing to “name and shame” employers who score badly.

WJM’s employment team believes that this is likely to be a very important ongoing story for large employers in the coming years. Employers will have to adapt to the new rules and make sure they fulfil the requirements. Further, they must be aware of the potential reputational damage if a large gender pay gap is found (as well as potential for this to cause resentment among staff) and should consider what can be done to lower or eliminate any gap.

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Grange v Abellio London

Here an employee, Grange, brought a case to tribunal arguing that he had been refused his legal entitlement to breaks.

Under Article 12 of the Working Time Regulations 1998, employers who work more than 6 hours per day are entitled to a rest break of at least 20 minutes. Further, Regulation 30 states that a worker may make a claim where his employer “has refused to permit” him to exercise any of his rights.

Grange was employed as a Relief Roadside Controller. His responsibilities involved regulating the frequency of bus services to the local road traffic conditions. He worked 8.5 hour shifts and was nominally entitled to a 30 minute break. Due to the reactiveness of the role, however, he struggled to find an opportunity to take his break. Abellio decided to cut his shift to 8 hours with the idea that he simply would not take a break.

At first instance, the Employment Tribunal did not find in Grange’s favour. It was held that an employer had to positively refuse a specific request from an employee for a break. Thus, even although Abellio had clearly expected that Grange would not take any break, there had been no breach of the regulations.

However, the Employment Appeal Tribunal took issue with this decision. It held that workers are to be “positively enabled” by their employers to take breaks. It is clear that employers are duty bound to afford their staff the opportunity of a break. The case has been referred back to the first tier Tribunal to decide on the facts.

WJM’s employment team advises that this case shows that employers must be careful not to foster a working culture where their employees are expected not to take breaks. Employers should ensure that their staff are aware of their rights under the Regulations and make sure that at least the minimum requirements are fulfilled.

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Gorka Salaberria Sorondo v Academia Vasca de Policía y Emergencias

This case is an important judgement of the European Court of Justice with regard to age discrimination. The case was decided under the Equal Treatment Directive which the UK Equality Act 2010 is based upon.

The Basque Police Academy embarked on a recruitment campaign and stipulated that applicants were required to be under 35. The claimant, Sorrondo, argued that this was unlawful age discrimination. 

For their part, the Basque Country police argued that, under Article 4(1) of the Directive, they were entitled to discriminate as an “occupational requirement”. They cited evidence showing that police officers over 40 were hindered in performance due to increased recovery times after physical activity. Further, they relied on reports claiming that officers over 55 were likely to cause risk to themselves and third parties in attempting to fulfil the duties of a police officer. Lastly, they produced data showing that the Basque force was aging and that they had to prioritise bringing in younger blood.

The European Court of Justice agreed with the Basque police. It was held that, in order to function properly, the Basque police force required (1) officers capable of fulfilling very physically taxing demands over a long period of their employment and (2) to “re-establish a satisfactory age pyramid”. These were legitimate and proportionate operational requirements.

The Court did not, however, give any kind of green light for discrimination. They referred to a previous decision in the case of Perez. This case concerned police officers in the Oviedo municipality and the Court had held that an upper age limit of 30 was unlawful discrimination. Perez was distinguished as the job requirements for these provincial police officers were not the same as for Basque police officers.

WJM’s employment team says that this shows the occupational requirement test for discrimination to be rigorous and complex. Employers should be able to show that they have looked at matters in depth and with an open mind. They should seek to demonstrate that, in setting an age limit, they have acted on a reasonable and detailed scientific basis and haven’t simply pulled a number out of thin air.

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Bellman v Northampton Recruitment

In this case, the High Court was required to consider whether an employer could be held vicariously liable for an assault which took place in the aftermath of the company Christmas party.

The claimant, Bellman, had attended his office Christmas party at a golf course. At the conclusion of the party he, and a number of others, moved on to a nearby hotel bar and continued drinking until the small hours. The company paid for taxis between the two venues but this was not an “official” part of the evening.

One of those present at the hotel bar was Mr Major, an owner of the business. Major and Bellman became involved in argument about a recently recruited employee. This resulted in Major punching Bellman twice causing him to fall and hit his head on the marble floor resulting in brain damage.

The court held that the business was not vicariously liable in these circumstances. For vicarious liability to be triggered, the actions must occur “in the course of employment”. Here, it was judged that this test had not been satisfied. The fact that they were talking about work alone does not mean that they were “in the course of employment”.

Rather, the two men had chosen to be parties to a private drinking session which, even in the event that the company were footing the bill, was far too remotely connected to the parties’ employment.

However, the Court did note that employees were expected to attend the Christmas party itself. Had the assault happened at the party, there would have been a much stronger connection to their employment. Although not explicit, the Court gave a very strong hint that the company would have been liable had Mr Major attacked Mr Bellman at the party rather than at the after party in the hotel.

WJM’s employment team believes that this case provides important guidance to employees regarding Christmas parties and other work events. Employers can be held liable for the behaviour of their employees at work events and so employers must make sure that their staff are well warned to avoid inappropriate or violent behaviour at work functions.

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