Employment Law Update: All you need to know this spring

Welcome to our spring employment law update!

We would like to invite you to the following upcoming events:

  • Front Line Manager Training – this popular three-day course is designed to upskill your frontline managers, giving them the knowledge and confidence to deal with staff issues in the right way – to improve team performance and minimise any risks to your business. For more information about dates and charges, and to book a space, please drop Cheryl a line at [email protected]
  • Helping EU Staff to Apply for Settled Status – this free workshop is being offered in conjunction with Arta Heath of My UK Visas and our partners at Stafflex Recruitment. If you employ, or are recruiting, any EU staff, this workshop is essential to find out how you can help them to apply for settled status and continue working for you, post Brexit. The workshop will take place at 8.30am on Wednesday 5th June. For venue details, and to book your space, please contact Kate at [email protected]
  • HR Forum – our forum for managers to share ideas, and practical solutions to HR topics, continues to grow. The next forum will take place at 8.30am on Thursday 4th July. It will focus on employer branding, and how to attract candidates to your business. Existing members of the forum will have priority in booking a place, but we’re happy to accommodate additional participants where we can. For venue details, and to book your space, please contact Kate at [email protected]

We hope you find our employment law update interesting. As always, if you have any questions arising, please just get in touch with one of us.

Legislation and Key Changes

Pay Slips:

With effect from 6th April 2019:

  • Payslips must be given to both employees and workers, such as casual staff; and
  • Payslips must include the total number of hours worked by an employee or worker, where their pay varies according to the number of hours they work.

The government guidance confirms that the hours can be shown either as a single total of all hours worked in the pay period – or broken down into separate figures for different types of work, or different rates of pay.

Pay Rates:

The statutory rates of pay have increased again, from April 2019:

  • Statutory Maternity/Paternity/Adoption Pay = £148.68 per week from 7th April 2019;
  • Statutory Sick Pay = £94.25 per week from 6th April 2019;
  • Statutory Redundancy Pay, cap on a week’s pay, = £525 per week from 6th April 2019;
  • National Living Wage = £8.21 per hour from 1st April 2019;
  • National Minimum Wage = £7.70 per hour for 21 to 24 year olds / £6.15 per hour for 18 to 20 year olds / £4.35 per hour for 16 to 17 year olds from 1st April 2019.
  • Apprenticeship Rate = £3.90 per hour for apprentices aged under 19, or in their first year of apprenticeship.

Holiday Pay:

  • The government plans to start an awareness campaign to make sure that employers and staff know that holiday pay must be calculated on the basis of average pay – including payments such as shift allowances, overtime and commission.
  • The Good Work Plan stipulates that, with effect from April 2020, average pay for the purposes of holiday pay should be calculated over a 12-month reference period. Until now, many employers have been making the calculation over a 12-week reference period (which is in keeping with the Employment Rights Act 1996). It is therefore likely that many employers will need to amend their processes.
  • HMRC will continue the tough approach to enforcement of National Minimum Wage, and extend the same approach to holiday pay.

Pay Gaps:

In 2017, a law came into force stating that businesses with 250 or more employees must publish a gender pay gap report stating average pay for men and women in their employment, including salary and bonus information. These details must be published on their websites.

The first reports came out in April 2018 and the second reports in April 2019. For some employers, their gender pay gap actually increased in this time. Overall, the median pay gap, which is the difference in pay between the middle ranking woman and the middle ranking man in the same company, has shrunk from 9.7% to 9.6%

We heard a BBC news item in which experts recommended that for the pay gap to be reduced, employers need to tackle issues such as unconscious bias, offer more flexible working and encourage use of shared parental leave. There is also the question of cultural changes, which include schools encouraging more girls to study science, technology, engineering and maths – as well as better availability of affordable childcare, and men taking on more of the household chores.

What’s your view? We’d love to hear your thoughts on what might make a difference.

Contracts, Employment Status and Continuous Service:

The Good Work Plan, December 2018, which resulted from the Taylor Review into Modern Working Practices, has stated the following changes will be introduced with effect from April 2020:

  • The government intends to provide greater clarification to help employers categorise their staff as employees, workers or self-employed – to reduce confusion, and help employers avoid cases like the Uber and Deliveroo cases we’ve seen over the last year. We look forward to seeing this, as it is a difficult subject for many employers.
  • All employees will need to receive a contract of employment by the first day of their employment – and all contracts of employment will need to include additional information about maternity and paternity benefits on offer in the organisation.
  • All workers will also be entitled to receive a written statement setting out the terms of their engagement. This must be issued to them on or before their first day of work.
  • Employees with variable hours of work will have the right to request a more stable working pattern after they’ve been with an employer for at least 26 weeks. This might mean requesting a guaranteed minimum number of hours, or fixed days of work. It is likely that these requests will have to be dealt with through a formal process, in a similar way to requests for flexible working – we await further guidance.
  • It will be harder to break continuous service. If an employee leaves their employment and returns to you within four weeks, their continuous service will be preserved, which will include any rights connected with this – such as the right to claim unfair dismissal, the right to a redundancy payment and any holiday entitlement, or other contractual benefits, linked to length of service.

Employment Tribunals:

  • In November 2018, the government indicated that they were considering re-introducing Employment Tribunal fees in some form, but we have had no further information about when this might take place, or what the new fee structure may be.
  • The government has been consulting over whether to extend the time limit for submitting a claim to the Employment Tribunals from three months to six months for most claims, and increasing the time limit for equal pay claims to six years. We don’t have the outcome of the consultation process yet, but it may mean that employers have to live with potential uncertainty for a longer period than before.

Disciplinary Procedures

Do you have to put a disciplinary procedure on hold pending the outcome of a police investigation or criminal court process?

No. If an allegation of serious or gross misconduct has been made against your employee, you should carry out your own investigation and make your own finding as to their guilt. If you conclude that the employee is guilty, you should consider whether or not it is reasonable to dismiss them for their actions. You do not have to wait for the police or criminal courts process to be concluded.

This has been confirmed by the Court of Appeal in North West Anglia NHS Foundation Trust v Gregg. Dr Gregg, a consultant anaesthetist, was suspended from work on full pay pending a disciplinary process after the death of two patients in his care. The police were carrying out their own investigation.

Dr Gregg sought an injunction that would require his employer to put the disciplinary process on hold until the police had finished with their investigation. This would mean he remained at home on full-paid suspension. The High Court granted his injunction.

The Court of Appeal overturned it. They stated that the employer’s actions in following their own disciplinary procedure were not calculated to destroy the trust and confidence between employer and employee (as the High Court found), it was the normal course of managing a serious allegation. The employer was therefore permitted to continue with their internal process without waiting for the police investigation to be concluded.

Do you have to deal with a grievance that is raised during a disciplinary process?

Yes. If an employee submits a grievance during a disciplinary process, you should decide whether it impacts on the disciplinary process and make appropriate modifications. For example, if the employee alleges that the manager conducting the disciplinary process is biased then you may need to arrange for someone else to conduct the disciplinary process before you continue.

In addition, you should make arrangements for the grievance to be dealt with to avoid an allegation of discrimination or breach of trust and confidence.

In Iwuchukwu v City Hospitals Sunderland NHS Trust Dr Iwuchukwu, a consultant surgeon specialising in breast reconstructive surgery, had restrictions placed on his practice while he was investigated for issues with his conduct and capability, including an incident in which a patient in his care was set on fire during an operation.

He submitted a grievance, which included allegations of discrimination and victimisation on the grounds of race. The Trust concluded that the allegation was an attempt to delay or derail the disciplinary/ capability process, and did not deal with it.

The Court of Appeal rejected the Trust’s explanation that the grievance was an attempt to delay or derail the process, as it was first mentioned by the Claimant before that process was started. The Court of Appeal concluded that the Trust’s reasoning could be tainted by race discrimination (Dr Iwuchukwu was the only consultant of black African ethnicity).


Will ‘banter’ always amount to harassment?

No. For an action to amount to harassment it must be unwanted, and have either the purpose or effect of creating an intimidating, hostile, degrading, humiliating, or offensive environment for another person – or of violating that person’s dignity.

In Evans x Xactly, Mr Evans was subject to banter and name calling, which included comments like “fat ginger pikey” “salad dodger” “fat Yoda” and “jellied eel salesman”. He was dismissed from his employment after a year on the basis of his poor performance and brought a claim for discrimination on the grounds of race (the “pikey” comment related to his links to the Traveller community) and disability (the comments about his weight linked to his diabetes).

The Employment Tribunal heard evidence about the work place environment and found that it was one of jibing and teasing, which it concluded was normal for the competitive sales team. The witness evidence indicated that Mr Evans had not been intimidated or offended by the comments and had joined in the banter, which included comments like “fat paddy” “pudding” and frequent use of “c**t” as an offensive name.

The Employment Tribunal concluded that, although the comments made to Mr Evans appeared inappropriate at first glance, they had not had the purpose or effect of creating an intimidating, hostile, degrading, humiliating, or offensive environment for him, or of violating his dignity.

This may feel like a sensible decision – but we could still recommend a little equality training for the team, to avoid further claims being made. The next person might not be as robust as Mr Evans, and the impact of the banter may be more intimidating or offensive to them.

Can you silence an employee who has made allegations of harassment?

The Parliamentary Women and Equalities Select Committee has conducted an inquiry in to the use of non-disclosure agreements in discrimination cases. This includes the question of whether settlement agreements, signed by an employee or former employee – who has made allegations of harassment or discrimination – can include a confidentiality clause to prevent that person from talking about those allegations.

We await further information about whether the government plans to legislate to prevent settlement agreements being used in this way.

You may recall the recent press coverage of a female employee who had made allegation of harassment against Sir Philip Green and signed a settlement agreement under which she left her employment and agreed to keep quiet, in return for £1million.

The allegations that she made were that he had kissed and groped her and that he had called her a naughty girl. The allegations were not investigated either internally or by the police, and are denied by him. The allegations were disclosed to The Telegraph and raised the question of whether she should be required to repay the £1million.

If confidentiality clauses in settlement agreements become unenforceable, the temptation to offer someone money in return for silence will be reduced.

Do you have to deal with a grievance that is not covered under your equality procedures?

Yes. Take care to ensure that your equality procedures are up to date, and include appropriate protections against discrimination on the grounds of gender reassignment. If you receive a grievance that is serious in nature, and may amount to bullying or harassment, we’d recommend that you investigate and deal with it – even if it is not expressly covered by your equality procedures.

In De Souza v Primark Stores, Ms de Souza had undergone gender reassignment and notified Primark of this. Her colleagues were aware of her gender reassignment and made comments about her which included: spraying scent near to the toilets saying “it smells like urine, like a men’s toilet”, saying “it’s a man’s voice” and telling her that she “had evil inside” her. In addition, one of her colleagues told a male electrician that he could go into the female toilets because there were “no ladies in there” when Ms De Souza was in there.

Ms de Souza submitted a grievance, which Primark did not investigate, or deal with. The company’s equality policy had not been updated to include gender reassignment as a protected characteristic, and it appears that they did not treat her grievance seriously.

She resigned and claimed constructive dismissal. Although she did not have two years’ service required to bring an unfair dismissal claim, she was successful in her discrimination and harassment claim and was awarded approximately £20,000 in loss of earnings and around £25,000 in respect of injury to feelings.

Did you find this employment law update interesting and useful? Is there anything we could add or change? We would love to know what you think. Please get in touch and share your feedback.