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    <span class=April, 2015" />

    What are the main proposals from the major political parties which may affect the Recruitment Industry?

    Conservative

    Zero hours contracts

    • They will eradicate exclusivity in zero hours contracts. Therefore any exclusivity clauses will be deemed to be unenforceable.

    Agency Workers

    • They will repeal “nonsensical restrictions” which ban employers from using agency workers to cover striking employees.

    Labour

    Agency Workers

    • Labour intends to “make it illegal to use agency workers to undercut wages by closing the loopholes in the Agency Workers Regulations 2010 that mean workers who are paid between assignments are excluded from the protections of the regulations”. Labour first set out its plans to remove the “Swedish derogation” from the Agency Workers Regulations back in November 2014. The Labour manifesto emphasises that Labour will abolish the loophole that allows companies to undercut permanent staff by using agency workers on lower rates of pay.

    Other plans to reform the use of agency workers include:

    • Banning agencies from exclusively recruiting from overseas.
    • Cracking down on rogue recruitment agencies who exploit their workers by cutting wages and conditions, by introducing a series of measures including a licensing system and extending the remit of the Gangmasters Licensing Authority where necessary.

    Migrant Workers

    Labour is committed to:

    • Ensuring there are fair rules at work to prevent the exploitation of migrant workers and reducing the demand for low skilled migration.
    • Making it a criminal offence to undercut wages by exploiting migrant workers. It will bring in a new law to prevent such exploitation.
    • Ensuring migrant workers jobs and conditions are no worse than local employees.
    • Work in Europe “to ensure the rules on the posting of workers from abroad that prevent jobs and conditions being undermined at home are effective”.

    In a campaign speech on immigration on 18 April 2015, Ed Miliband has pledged to set up a Home Office investigative unit to target the illegal exploitation of migrant workers, if a Labour government is elected. The team of more than 100 police officers and specialists from the Gangmasters Licensing Authority will have more powers to stop the abuse of workers and increase the prosecution of employers who breach employment laws. The unit would comprise of enforcement officers taken from the 1,000 newly recruited border agency staff announced by Yvette Cooper in March 2015. This announcement corresponds with Labour’s manifesto pledges to put an end to exploitative practices that undercut wages and conditions for agency and migrant workers (see above).

    Zero hours contracts

    • Labour will restrict the “exploitative” use of zero hours contracts by ensuring that workers who work “regular hours” in their first 12 weeks of employment are given a “regular contract”. The Labour manifesto refers to those working regular hours for more than 12 weeks being entitled to a regular contract.

    It also plans to:

    • Introduce new legal rights for workers on zero hours contracts, to stop employers forcing workers to be available at all times or cancelling shifts at short notice without compensation.
    • Monitor employment practices to see whether employers are increasing the use of short-term contracts and, if so, take steps to prevent this.

    Liberal Democrats

    Zero hours contracts

    • The Party will stamp out abuse of zero hours contracts and will create a right for workers to request a fixed term contract.
    • It will consult on introducing a right to make regular patterns of work contractual after a period of time.
    • Recently, they stated they will consult on how best to tackle rogue employers that try to avoid any new restrictions on zero hours contracts. No further detail is given in the manifesto.

    Workers’ rights

    The Lib Dem manifesto refers to the need for a “highly skilled workforce and flexible business support”. One of the ways it proposes of achieving this is by providing support to medium sized businesses through a “one-stop-shop” for accessing government support, a dedicated unit in HMRC and the development of management skills. At the annual conference in 2014, Vince Cable announced plans for a “one stop shop” to enforce workers’ rights. The new Workers’ Rights Agency would streamline the work of four existing bodies: the national minimum wage enforcement section of HMRC, the Working Time Directive section of the Health and Safety Executive, the Employment Agency Standards inspectorate and the Gangmasters Licensing authority. This detail is not included in the manifesto.

    The Party has also announced an intention to double the number of employer inspections to ensure statutory employment legislation is being complied with in relation to migrant workers.

    UKIP

    Zero hours contracts

    “UKIP recognises that zero hours contracts suit many people, we will not ban them”. It proposes to introduce a legally binding Code of Conduct setting out the following:

    • Businesses who employ 50 people or more must give workers on zero hours contracts a full or part-time contract after one year, if they request it.
    • A ban on exclusivity clauses in zero hours contracts.
    • Workers must be given at least 12 hours advance notice of work. Once this notice has been given, they must be paid for the work, regardless of whether they are given any work. Employers will not be able to turn away a worker who is expected to turn up for work, if no work is available.

    UKIP has previously pledged to repeal the Agency Workers Directive. The manifesto states that agency workers have been penalised due to the increased use of zero hours contracts by employers as a way of escaping the requirements of the EU’s Temporary Agency Workers Directive which gave agency workers the same workplace rights as employees.

    Under UKIP’s proposals the Temporary Agency Workers Directive would no longer apply to agency workers as the UK would no longer by subject to European laws as a result of leaving the EU.

    Care workers

    UKIP will not allow the NHS or third parties to employ home care workers on zero hours contracts. It will ensure these workers receive the national minimum wage, by being paid for the entire time they are on duty and not being expected to travel in their own time.

    SNP

    Zero hours contracts

    • SNP will support action to end unfair and exploitative zero hours contracts, by launching a time-limited consultation, involving businesses and trade unions, to agree the most effective way forward

    Green

    Zero hours contracts

    The Green Party states it will

    • End exploitative zero hours contracts. There is no further detail provided.

    and finally…
    …it all seems to have gone quiet on the travel and subsistence payment front… I am sure not for long!

    Peach law was the BBC’s “go to” for expert commentary on employment law recently (North West Tonight Programme). Why not try our experts to help your business and increase your bottom line!

    Can a warning given in bad faith be relied on for the purpose of determining whether there is sufficient reason to dismiss an employee?

    No, held the Court of Appeal in Way v Spectrum Property Care Limited.

    The Claimant was given a final written warning which he alleged was given in bad faith. The warning was taken into account by the Respondent in its decision to dismiss the Claimant for unrelated misconduct. The employment tribunal refused to hear evidence as to whether the warning was given in bad faith, and dismissed the claim for unfair dismissal.

    The Court of Appeal found that an employer who took into account a warning given in bad faith would not be acting reasonably. The case was remitted to a fresh tribunal to consider whether the warning was given in bad faith, and in light of that, whether the dismissal was unfair.

    Facts

    Alleged harassment

    The Claimant worked as a waitress at, Britannia Hotels Limited (Britannia) and her line manger was also employed by Britannia. She alleged that from February 2013 she was subjected to harassment for a period of eight months by her line manager (A). She was 22 at the time of the alleged harassment and had a history of mental health issues. She was employed under a zero hours contract.

    The Claimant claimed that A frequently asked her to talk about matters relating to her sex life. When she complained about this to another one of her line managers, she was told to lodge a written complaint but that line manager took no further action. Thereafter the alleged conduct worsened. The Claimant alleged that A touched her on the bottom, kissed her on the neck and continued to make inappropriate comments about her personal life. She claimed that he sometimes stood behind her and made a grinding movement on her back, simulating sexual intercourse. On one occasion, she complained, when she was leaning over a work surface, that he knelt down and stroked her back passage with a pen.

    The Claimant went off sick from 27 October 2013. In late October, an unrelated meeting was held with the Claimant and in the course of that meeting, the Claimant told the hotel manager (Mr Whittaker) about the sexual harassment by A. She indicated that although she had mentioned the matter to another line manager, she had not wanted her to say anything in case her shifts were reduced as a result of the complaint.

    Investigations into harassment

    Mr Whittaker asked the Claimant to lodge a formal complaint, which she did, and he duly investigated the matter further. The investigation was very brief. No detail was sought about the harassment and when a witness to the harassment was identified, she was only interviewed for 10 minutes. The witness was able to verify that A touched the Claimant’s bottom and kissed her neck. A denied the alleged conduct.

    In December 2013, Mr Whittaker wrote to the Claimant with the conclusion of his investigation, namely that certain “mannerisms and behaviour” by another member of staff towards her were inappropriate. This was not detailed any further. No disciplinary action was taken against him, not even a warning, although he was asked to desist from this behaviour in future.

    Following receipt of the employment tribunal claim, Britannia decided that the complaint should be re-investigated by a new HR manager, some ten months after the original complaint. During the investigation, A once again denied the allegations and this time, the verifying witnesses’ evidence changed. As the new HR Manager did not read the papers relating to the first investigation, she was unaware of the inconsistency in that witness’s position. She found that there was “no conclusive evidence” that the majority of incidents had occurred. She found that the neck-kissing had taken place but that the Claimant had to some extent encouraged it. Despite her finding that no harassment had taken place, A was required to attend a bullying and harassment course in September 2014.
    The Claimant appealed, unsuccessfully, against the decision.

    Decision

    The Tribunal concluded that A had harassed the Claimant and Britannia was vicariously liable for it. Britannia could not avail itself of the statutory defence. It made an award of £19,500 for injury to feelings against both respondents, such award being for joint and several liability.

    Harassment:

    Miss Southern was a credible witness, having given a consistent version of events throughout. By contrast, A’s evidence was vague and contradictory. It was clear to the tribunal that he was unwilling to say anything on oath that was untrue and it was notable that, when giving evidence, he was equivocal about whether the harassment had taken place. This was in contrast to his vehement denials during the course of Britannia’s investigation.

    The alleged incidents had, on the balance of probabilities, taken place, and the conduct had been unwanted. There could be little doubt that it was reasonable for the Claimant to regard the treatment she received as degrading and violating her dignity. The complaint of sex discrimination by way of harassment succeeded.

    Statutory defence not available

    Britannia could not avail itself of the statutory defence. An employer has a statutory defence to discrimination where it can show that it took all reasonable steps to prevent the individual who discriminated from doing that thing, or from doing anything of that description. It was clear that whatever their policies might have said, they had not implemented them. A line manager had actual knowledge of the harassment yet had done nothing to stop a re-occurrence of it. The three separate investigations by three senior managers of the company had been wholly inadequate and flawed. In particular:

    1. Mr Whittaker had failed to suspend A so as to protect the integrity of the investigation.
    2. He failed to follow up on potentially corroborating evidence.
    3. He failed to take disciplinary action against A.
    4. The HR Manager had failed to remedy the deficiencies in Mr Whittaker’s investigation; in fact she dismissed the grievance for the flimsiest of reasons.
    5. The manager hearing the appeal had, like the HR Manager, failed to pursue enquiries with the original corroborating witness.

    Injury to feelings award

    In setting the level of the award, the Tribunal noted that the harassment was not of the worst type but also noted that the Claimant was very young and vulnerable by reason of her mental health. The harassment was made worse by the fact that it consisted of an abuse of power by her manager. If the Tribunal had simply been looking at the conduct over the eight month period, it would have placed the award in the middle of the Vento bands. However, as well as the factors referred to above, the Tribunal took into account the dismissive approach taken by Britannia to the investigation. This aggravating feature was taken into account when setting the level of damages at £19,500.

    The tribunal summed up the reason for its approach as follows:
    “Where persistent harassment over a period of eight months has occurred substantial compensation is likely to be justified but where the employer then has the means of addressing the problem, but wholly fails to do so in relation to a process that takes another year to complete the impact upon this Claimant was likely to be magnified. It cannot be underestimated how the Claimant must have felt when she was, and indeed has continued to be, persistently disbelieved”.

    Useful Note

    This case is a good example for employers of how not to conduct an investigation into discrimination allegations. The Tribunal noted that the employer seemed to be labouring under the illusion, that it could adopt a “range of reasonable responses” approach to investigation. The investigation lacked rigour and integrity at every stage. The tribunal commented that the employer did not appear to have the slightest interest in getting to grips with what had actually happened.

    Part of the claimant’s vulnerability in this case, apart from her youth and mental health, was her status as a zero hours worker. Although this is only alluded to briefly in the judgment, the tribunal noted that the Claimant felt trapped and fearful that her shifts might be reduced if she complained. It is possible that moving forward Tribunals will give more weight to the employment status and security of the claimant when considering to what extent they were vulnerable?

    Not on the facts of the case held the High Court.

    The Claimant was a manager of a supermarket. He was very successful but became ill through occupational stress and alleged this was due to the negligence and/or breach of statutory duty on the part of B&Q. A significant part of the Claimant’s case was the lack of risk assessment by B and Q in relation to stress.

    The Claimant was off work with depression for around five months. He received medication and therapy. He returned on a phased basis at a store nearer his home address which was less busy than the store he previously managed. This,however, did not work out and he was recertified as unfit for work due to depression, and launched a claim.

    The question for the Judge was whether the injury was reasonably foreseeable by B and Q.

    According to the Judge an employer has no general obligation to make searching or intrusive enquiries and may take at face value what an employee tells him. In particular, an employee who returns to work after a period of sickness without qualification is usually implying that he believes himself to be fit to return to the work he was doing before. The foreseeability threshold in stress claims is therefore high.

    On the facts the Claimant’s claim failed at the first hurdle ‘foreseeability’ in respect of his first breakdown. This was because of his long managerial career in charge of large retail outlets with no psychiatric history. As to the relapse suffered by him, B&Q clearly now knew he had suffered a psychiatric illness, however, the fact he was still taking medication was not determinative as to how his employment should have been handled. There are many people holding down demanding jobs who still require medication. On the facts, given the high standard of proof required, the relapse was also not foreseeable by the employer.

    There remained the issue of the lack of a general risk assessment. But B&Q had a document about managing stress, inviting individuals to identify and notify the employer of any symptoms concerned. The Judge was of the opinion that the Claimant had made insufficient efforts to do this and therefore concluded that, on the facts of the particular case, a wider risk assessment would have had no effect on the outcome project collaboration software.

    Tips for Employers

    1. The breach of duty threshold is high as the employee has to establish that the harm suffered was “reasonably forseeable”.

    2. The employer is generally entitled to take what it is told by the employee at face value, unless it has good reason to think otherwise. There is no general obligation to make searching enquiries of the employee or seek permission for medical input.

    3. To trigger an obligation to make enquiries and potentially complete a risk assessment, there must be clear indications of a likelihood of harm to health arising from stress at work (i.e. issues relating to sickness absence, complaints from the relevant employee or others and/or a known history of stress related illness) whereby any reasonable employer would realise that it should do something about it.

    4. The fact that an employee is on medication is not an indication as to how their employment should be handled as many people hold down demanding jobs with the support of medication for underlying psychiatric illnesses.

    Should you have any queries, please contact us.

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