February Employment Briefing

Martin Stephen

Published by
Martin Stephen

26th February 2020

Welcome to February's Employment briefing, providing a summary of some recent employment judgements.

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

Parental Bereavement Leave & Pay

The Government has published statutory instruments which implement two weeks’ paid bereavement leave for parents upon the death of a child aged under 18.

The Parental Bereavement Leave Regulations 2020 and The Statutory Parental Bereavement Pay (General) Regulations 2020 come into effect on 6 April 2020. The leave is only available to employees. There is no minimum service requirement. Statutory Parental Bereavement Pay is available to employees and paid office holders with at least 6 months continuous service. Leave can be one week, two continuous weeks or two separate weeks, starting on any day of the week. Leave may be used anytime in the first 56 weeks after death or still birth of a child. Employees and paid office holders with qualifying service are paid at the same rate as statutory paternity pay or shared parental pay.

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Employees whose contract lasts a month or entitled to written employment “contract”

With effect from 6 April 2020, a statement of initial employment particulars must be provided to both employees and workers on or before the first day of their employment instead of just to employees.

Certain terms must be set out clearly in the principal statement. These include the notice periods for termination by either party, terms relating to sickness absence and sick pay, terms dealing with holiday and holiday pay entitlement, and any other benefits. Also included are details of normal working days and hours and whether these are fixed or variable as well as probationary periods.

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Agency workers to be paid equally as employees from the start of employment

The Agency Workers Regulations (AWR) 2010 provided that temporary workers employed for more than 12 weeks by the same employer have a right to the same pay and employment conditions as permanent staff.

However, on 6 April 2020 agency workers will have the right to the same pay and benefits as permanent staff from their first day of employment. This does not apply to agency workers already working for the employer.

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Government responds to national minimum wage consultation on salaried hours work and salary sacrifice schemes

The Government has responded to a consultation launched in December 2018 on whether certain aspects of the national minimum wage (NMW) legislation should be amended to ensure that it does not inadvertently penalise employers.

Having considered over 100 responses to the consultation, the Government has announced that it will amend the NMW legislation to relax the current rules relating to "salaried hours work". This will allow employers to pay salaried hours workers on different payment cycles, to choose a calculation year for their workers, and to make premium payments to salaried hours workers. These changes are intended to come into force on 6 April 2020.

Although the Government has decided not to amend the NMW legislation in relation to salary sacrifice schemes, several measures have been announced to help employers understand the rules and drive compliance. These include improving the available guidance, waiving certain financial penalties for breach of the salary sacrifice rules, a resumption of the NMW Naming Scheme (subject to a higher arrears threshold), providing pro-active support for new, small businesses, and giving employers access to help directly from HMRC (via a telephone helpline and online).

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New guidance from ACAS for employers and workers on use of NDA’s

On 10 February 2020, ACAS published new guidance on the use of non-disclosure agreements (NDAs). This is intended to help employers and employees understand exactly what an NDA is and when it may be appropriate or inappropriate to use one. It is relevant to any type of case, and not limited to those involving discrimination or harassment.

The Guidance confirms that an NDA cannot prevent whistleblowing, nor the reporting of a crime to police. Further examples given of situations in which NDAs should not be used include to cover up misconduct, to avoid addressing workplace issues or to mislead individuals.

ACAS advises employers to consider alternatives to an NDA, such as relying on workplace policies or procedures (for instance, whistleblowing or disciplinary and grievance procedures) and creating a good workplace culture, in which employees feel that they are able to speak openly about issues they encounter, with the knowledge that these concerns will be listened to and addressed appropriately.

Where these alternatives do not avoid difficulties, ACAS urges employers to consider NDAs on a case-by-case basis to determine if they are definitely needed and whether they would cause any serious moral or ethical issues or any other negative outcomes.

Lastly, the Guidance gives some information about situations in which it may be appropriate to use an NDA. These include:
• To keep some details of an agreement confidential (for example, the settlement figure in a settlement agreement), or to keep the entire existence of an agreement confidential.
• To protect information belonging to an organisation, including where an organisation needs special protection for intellectual property or client information, and to keep facts known by a worker about an organisation confidential.
• To prevent derogatory statements being made about an employer or worker, or to help protect someone if the details of a dispute became known.

Where employers are concerned about using an NDA, ACAS advises that they should seek legal advice.

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Ishola V Transport for London [2020] EWCA Civ 112

The Court of Appeal has upheld the decision of the Employment Tribunal and Employment Appeal Tribunal that an employer’s failure to resolve an employee’s grievance prior to dismissal was not a “provision, criterion or practice” (PCP) requiring the employee to return to work without a proper investigation into that grievance. Giving the leading judgment, Lady Justice Simler held that a one-off act by an employer in the course of dealing with a single employee may amount to a PCP under the Equality Act 2010. However, not all such acts will qualify as a PCP. Taking into account the natural meaning of the words "provision, criterion or practice", there needs to be some form of continuum in the sense of how things generally are or will be done by the employer. No PCP will be established in relation to a one-off act in an individual case where there is no indication that the decision would apply in future.

In circumstances where there was no evidence or finding that the employer's failure to investigate grievances before the employee's dismissal was the way things were generally done or would be done in the future, the Tribunal had been entitled to find that this was a one-off act in the course of dealings with that particular employee and that no PCP was made out.

Care should be taken in applying the decision in this case. It does not mean that it will always be safe to insist on an employer disposing of an employee grievance before dismissing that employee. Whilst such action may not constitute a PCP, there is a real risk if falling foul of the general rules of unfair dismissal and caution dictates that it is much safer to dispose of an employee grievance befor taking or continuing disciplinary action.

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Solicitor wins age discrimination case after he was denied job for being “expensive”

A Manchester Employment Tribunal has ruled that a senior solicitor, Raymond Levy, was discriminated against because of his age after his application for a job at a law firm was rejected because he was "expensive". Following its rejection of Levy, the firm had altered the job requirements to suit a more junior solicitor. The Tribunal held that, in this instance, "expensive" was "synonymous with his being an experienced and older solicitor".

However, the Tribunal reduced Levy's compensation award on the basis that a "clash of personalities" upon his arrival at the firm would have meant that the appointment would only have lasted for one month before he was given a week's notice. In addition, the Tribunal noted that the firm had ceased to carry out work in the claimant's area of law in the months following the interview. As a result, the tribunal ordered the firm to pay Levy £13,188 for loss of earnings, injury to feelings, aggravated damages and interest.

Whilst an interesting decision, it is one which turns on its particular facts and should not be interpreted as meaning expensive always connotes older.


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