No, according to the Court of Justice of the European Union (CJEU).

The CJEU in its decision in the case of ‘Achbita -v- G4S Secure Solutions NV’, has held that the banning of a headscarf does not constitute direct discrimination in the work place. The decision means that in theory employers can put policies in to place which ban the visible wearing of political, philosophical or religious symbols, should they choose to do so.

The wearing of religious symbols in the work place has been a hot topic in the press over the past 18 months and readers may recall the similar cases of ‘Bougnaoui -v- Micropole SA’, dealing with an employee wearing a hijab, and ‘Eweida -v- British Airways’, dealing with an employee wearing a cross necklace, both, notable cases which dealt with the wearing of visible religious symbols in the workplace.

The decision of the CJEU, has found that prohibiting an employee from wearing a headscarf can be justified by an employer’s general policy of neutrality. This can be justified where the ban is applied consistently to all visible signs of religious or philosophical beliefs. In this case, the employer, G4S operated a policy of ‘neutrality’, which prevented employees from wearing political or religious symbols.

The CJEU has held that G4S’ policy did not amount to direct discrimination on the grounds of religion as it was to be applied to all religious symbols. Accordingly, the policy did not treat one religion less favourably than another religion.

The outcome
If an employer has an internal policy which bans the wearing of visible political, philosophical or religious symbols in the workplace, such as a headscarf, it will not amount to direct discrimination based on religion or belief, if it is part of a policy of neutrality. Employers should however, note that such a ban could potentially constitute indirect discrimination if the neutral obligation it imposes means that employees with certain beliefs, or those following a particular religion are being put at a disadvantage.

What does this mean for business?
This judgment really demonstrates to business’ the importance of having clear and well drafted policies in place, which must be applied equally to all staff.

The ruling does not mean that a business can place outright bans on religious clothing in the workplace, and employers should be cautious of imposing bans. We would advise that forethought is given when considering putting such a policy in place, the business should ask itself; what is the reasoning behind the policy? what impact will this have on the staff, and will it potentially affect morale? How are staff likely to react to such a policy? and, would it be a policy that would affect one particular section of the workforce only and not others?

Despite the ruling in this case, there is the potential for employers to fall foul of discrimination law when implementing policies such as these. All employers should adopt a cautious approach when considering putting bans/prohibitions in place, and always seek legal advice before taking any action.

Should you have any questions on this topic, or if you need advice with regards to any existing or new policies, please contact Lindsey or Sarah on 0161 478 3800 or email us at hello@peachlaw.co.uk.

Changes to tax law IR35 (intermediaries’ legislation) and the way in which Contractors within the public-sector are being brought in…

Contractors are used in many areas of work, and are often contracted through an intermediary, or a personal services company (PSC), for example a limited company. A benefit for a Contractor in doing this can include taking advantage of the more favourable tax rules that are afforded to companies, rather than to individuals.

Beginning in April 2017, changes will come in to force which will impact business’ who supply contract labour to the public sector.

Previously, the provisions under IR35 allowed PSC’s to decide whether or not to deduct tax and national insurance contributions from income earned by the Contractor, however, as of April 2017, this will be the decision of the public body, or third party who is engaging the Contractor.

To assist an online tool to determine employment status that has been produced by HMRC, which can be found here. This tool is however, in its current form very basic.

Those Contractors affected by this change will be required to pay tax and national insurance contributions deducted at source by the public-sector body, as if they were employees. It is important to note however, that despite these Contractor’s being viewed as employees for tax purposes, this does not entitle them to employment rights, for example the ability to claim unfair dismissal.

Where an agency (third party) places staff into a public-sector body and pays the PSC, the agency will be responsible for applying the decision made by the public sector and deducting tax, overall, we envisage that this may mean that there are some additional administrative costs for agencies.

The outcome

It is believed that PSC Contractors will begin to turn their backs on the public sector work and this may lead to a shortfall in skills, watch this space…

If you are confused about the IR35 changes or would like to discuss the potential consequences of the changes, please contact our employment law team on 0161 478 3800 or on hello@peachlaw.co.uk.

Parents will be able to apply for both Tax-Free Childcare and 30 hours free childcare at the same time, through a joint childcare service. Parents can now sign up to receive an email update which will notify them when they are able to apply.

You will not be committing to either but will be alerted when you are eligible.

As part of Apprenticeship Week we have focused on the up and coming Apprenticeship Levy.

Apprenticeships have been seen as one to the key programmes to assist with skill shortages and supporting businesses with the recruitment and retention of staff. The Government are keen to encourage employers to invest in apprenticeships and in 2015 they announced that there will be an Apprenticeship levy to be introduced. What does this mean for your business? The CIPD have published a guide for employers on how the apprenticeship levy will work.

Please see below a summary of key points for you to consider;
• Effective from 6 April 2017
• The levy will require employers with a UK paybill of more than £3m a year to pay 0.5% of their paybill to fund apprenticeship costs.
• Up to employers to notify HMRC each month – payment will be taken in real time.
• Apprenticeships are a devolved policy, which means that authorities in each of the UK nations manage their own apprenticeship.
• Although the levy is calculated on UK paybill, employers can only spend their English portion on English apprenticeship training.
• Employees can be apprentices at any age.
• Employers will receive a £15,000 fixed annual allowance (not a cash payment) to offset against the levy payment.
•Employers who are not liable for levy payments will also experience changes in apprenticeship funding, and will be required to co-invest. The Government will contribute 90% of the cost of training with employers paying the remaining 10%.

When recruiting apprentices it is important to consider your own business strategy. Are you clear about how apprenticeships are aligned with that strategy?

Liaise and meet with apprenticeship providers. It is important for you to choose one that knows and understands what the business is about and the knowledge and skills that are needed.

For more support on what the Apprenticeship Levy means for you and recruiting Apprentices please contact one of our HR Specialists on 0161 478 3800 or email hello@peachlaw.co.uk.

British Gas has been refused leave to appeal by the Supreme Court in the long-running case regarding the payment of commission during holiday.

Readers may recall the case that we have previously reported on of ‘British Gas -v- Lock’, it was a significant case for employers with regards to how holiday payments are made to employees. The case was previously heard at the Employment Tribunal, the Employment Appeals Tribunal and then the Court of Appeal, with each forum concluding that commission payments should form part of holiday payments.

The Supreme Court, which is the final court for appeal within the UK has now refused an application to appeal the decision, which finally brings this matter to a close. The overall outcome is that holiday pay must include compensation for any results-based commission that would ordinarily be earned by a worker.

Originally the Employment Tribunal sought confirmation from the European Court of Justice (ECJ) for clarification on whether or not it was a breach of the Working Time Directive or the Working Time Regulations 1998 to limit the calculation of a week’s pay for annual leave to basic pay and to exclude commission. The ECJ decision was that commission payments must be included in the calculation of holiday pay.

Overall, the Supreme Court’s decision to disallow a further appeal on this matter means that British Gas, the company at the centre of this case will have to compensate Mr Lock, the Claimant for his losses, and ultimately, many other employers who have been watching in the side lines may now have to stump up more money to their employees.

Some commentators on this long running case believe that Brexit could have an impact on this outcome as the Working Time Regulations, derive directly from the European Union. Watch this space!

Should you require any advice on holiday pay please do not hesitate to contact out legal team on 0161 478 3800 or on hello@peachlaw.co.uk.

Employment Status
There have been a number of high profile cases in the media in recent months which have raised the question of, what is employment status? The cases in the spotlight, and those which you are likely to be aware of include, the Uber case and most recently the Court of Appeal’s landmark ruling in the case of ‘Pimlico Plumbers & Charlie Mullins -v- Gary Smith’.

The significance of the recent Pimlico Plumbers (Pimlico) case is relevant for those employers who employ workers in the gig economy, which can be defined as a, labour market characterised by the prevalence of short-term contracts or freelance work, as opposed to permanent jobs. Or, more simply put, instead of earning a regular wage, individuals get paid for the “gigs” they do, such as a car journey or a food delivery.

The ruling in the Pimlico case saw a self-employed contractor qualify as a worker, meaning that he was entitled to certain employment rights, which include the minimum wage, sick pay and holiday pay.

The background
In the Pimlico case, the Claimant, Mr Gary Smith was a self-employed operative, described as, ‘an independent contractor of the Company’. He worked as a plumber and his normal working hours consisted of a 5-day week, and a minimum of 40 hours per week. The Claimant was liable to account for his own income tax, VAT and social security contributions. Further, he was required to provide all his own tools, equipment and material, and he was required to provide insurance, and to accept personal liability for all work he had undertaken, and he undertook financial risk of non-payment by clients. Pimlico provided the Claimant with a uniform, which he was required to wear and a branded van for work use.

The Claimant worked for Pimlico between August 2005 and April 2011, but suffered a heart attack in January 2011 and requested to reduce his working week from five days to three days, this however, was refused. The Claimant presented a number of claims at the Employment Tribunal including unfair dismissal, wrongful dismissal, entitlement to pay during the period of a medical suspension, and a failure to provide particulars of employment.

The Outcome
The Claimant’s entitlement to present these claims at the Tribunal was dependent on his being an employee of Pimlico. The Employment Tribunal held that he was not an employee so it had no jurisdiction to hear these claims. In reaching this decision the Tribunal considered all of the circumstances, including the fact that the Claimant took advantage of his self-employed status, that there was insufficient obligation to provide work or pay, and the Claimant undertook the financial risk of non-payment by clients, for this relationship to be one of employer and employee. This part of the decision was upheld by the EAT. The Claimant was successfully challenged Pimlico’s assertion that he was self-employed, and the Tribunal found that the Claimant was in fact a worker and therefore, he was entitled to certain employment rights.

Pimlico appealed this decision at the Court of Appeal however, this was rejected. It now very likely that Pimlico will seek to take this case further, to the Supreme Court.

This decision, as with the Uber decision, which we previously reported on is likely to affect employers of self-employed contractors. Some individuals will now fall within the definition of worker and therefore, they will be entitled to rights such as the minimum wage, holiday and sick pay. This decision will assist employees who are incorrectly labelled as contractors and therefore, miss out on certain employment benefits.

How do you assess employee status?
Determining an employee’s status is not always a straightforward matter, generally there are the following types of individuals working in a business:
i.) Employees
ii.) Workers
iii.) Self-employed/Contractors
iv.) Directors
v.) Office Holder

It is important to be able to distinguish between the above categories in order to clarify what employment rights each one is entitled to, however, this is not always clear cut.

When the Employment Tribunal has considered employee status previously, it has focused on working relationships, and the reality of how such relationships work in practice.

The main tests to consider when determining whether an employment relationship exists are:
• Mutuality of Obligation – there is an obligation for the employer to offer work to the employee and similar obligation on the employee to accept the work.
• Control – the employer controls when the work is done and how it is done, the employee must follow Company rules and procedures.
• Personal Service – the employee cannot send in a substitute to carry out the work for him i.e. he is required to complete the work himself.

Conclusion
In the Pimlico case the Claimant appeared to be a self-employed contractor, for example when considering tax, National Insurance contributions and VAT, however, the Court of Appeal considered the reality of the working relationship between the parties when considering the appeal, and used its discretion to determine whether the contractual relationship Pimlico asserted they had was legally correct.

In the Pimlico case the Claimant was required to work for the business and to wear its uniform, therefore, to the clients of the business the Claimant appeared as an employee, however, whilst wanting the Claimant to appear as an employee, Pimlico sought to also assert that the relationship was actually one of a self-employed contractor, rather than employer and employee. We envisage that both the Uber and Pimlico cases will be pursued further to the Supreme Court, and the implications for employers of contractors could be far reaching. Companies with a large self-employed workforce should be vigilant as they may be subject to closer scrutiny.

Should you have any questions in respect of this, or if you have any concerns with regards to the clarity of your contracts of employment/or the status of any of your employees, please contact one of our experienced employment lawyers to discuss this further on 0161 478 3800 or email us at hello@peachlaw.co.uk

What are the main advantages to outsourcing HR?

A Human Resources department is responsible not only for the day-to-day management of employees but also for a variety of functions including payroll, benefits administration, training and development, legal compliance and the maintenance of personnel files and confidential records. For many businesses, implementing and maintaining all of these HR functions in-house can be far too complex, as well as costly, and they have found that outsourcing their HR function has several advantages:

Cost Savings:
Depending on the size of your business, the cost of any internal HR resource may not be affordable, especially for start-up companies. However, as a business grows there will be a need for experienced HR staff and additional office space will be necessary to accommodate this expansion. In these circumstances, companies have to consider if it would be more beneficial to outsource their HR function. One benefit of outsourcing is that the costs are variable and allow companies the flexibility to pick and choose the services they actually require as their business and HR requirements grow. Outsourcing costs can also be reduced if there is an unexpected downturn in business at any time.

Time Saving:
Using an external HR provider like “Peach” allows a company the freedom to focus on the day to day running of the business while leaving the HR specialists to deal with the daily aspects of employee management. We will listen to your business needs and work with your managers in the business to understand your company strategies. By doing this, as HR Specialists, we can be integrated into the business and work closely with you, as and when required, rather than employing a full time internal HR manager which would generally cost in the region of £40,000 per year. Outsourcing HR also allows continuity of service as you do not have to worry about the company’s core functions suffering if a key HR employee leaves. i.e. As an outsourced HR provider, we will be there to assist you at all times giving you the freedom to spend less time filling out paperwork and more time to focus on improving the efficiency and effectiveness of your workforce.

Minimising Risk:
When do internal HR Managers have the time to keep up with changes in employment legislation that affect the workplace? As HR specialists we keep up to date with current employment legislation and will assist your business to comply with these laws, minimising the risk of any potential tribunal claim. We will also regularly review and update your company policies and practices in line with legislative changes to ensure compliance at all times.

Developing Talent:
Training and development of staff can often be overlooked when HR and managers get bogged down in their daily routine. At Peach, we can deliver bespoke and relevant training on site to managers and staff on a variety of HR topics whenever required.
Outsourcing HR can also help businesses to manage employee performance and development. As HR Specialists, we have the expertise to develop and implement performance appraisal schemes and performance development plans to ensure employees successfully achieve their objectives and ultimately meet business goals. This will allow managers to focus on the business strategy and improve the level of talent and expertise within the business for a successful future.

By choosing to outsource your HR function – either completely outsourcing it to an HR service provider like “Peach” or as a bolt-on to your internal HR department – you can focus on all of the commercial aspects of running your business and relax in the knowledge that you have the experience and expertise of an HR Specialist to call upon, as and when required.

Call us now on 0161 478 3800, or alternatively email us: hello@peachlaw.co.uk

Christmas is over and everyone has been back at work for a few weeks. There is no money left in our bank accounts and we are all waiting for pay-day. The weight you lost in the run up to Christmas has piled on again. The weather is miserable and travelling to and from work in the dark just makes you want to curl up under the duvet to hibernate.

It’s now Monday 16th January (aka “Blue Monday”) so how on earth are you going to boost staff morale to help them get over this gloomy time of year?

1. Focus on employee engagement – get staff involved and ask them for their ideas to make the workplace a happier place. Communication and involvement are key to making employees feel like they are an important part of the business. If they do not understand what it is the Company is trying to achieve in the next year or they do not feel valued, why would they feel motivated or inspired to work hard and be the best they can be all year round?

2. Create social events throughout the calendar year e.g. Breakfast catch-up meetings, regular dress down days, treat your team to lunch out as a “thank you”, organise after work drinks and get togethers.

3. Create team building competitions – offer prizes not only to boost staff morale but also to increase sales and productivity levels.

4. Recognise good work – always try to make a point of praising achievements and hard work or even just say “thank you” to your team. It not only makes your staff feel valued but it can have a really positive effect on productivity levels. However, make sure you don’t just focus on the positives on “Blue Monday” – endeavour to make recognition part of the culture of your company and focus on it throughout the year.

5. Encourage a healthy lifestyle – to prevent energy levels slumping provide healthy snacks for all staff during the working day e.g. fruit, nuts, yoghurts.

6. Encourage regular exercise breaks – during the bleak, winter months driving to and from work in the dark means that employees often see very little sunlight during their working day which can be detrimental to their health and well-being. To combat this, it is important to encourage staff to take regular breaks away from their desks to socialise with colleagues and to switch off from every day stresses. They need to get outside at lunchtime for fresh air and exercise and to capitalise on the natural daylight as well as eating a healthy, nutritious lunch. This can help to stabilise serotonin and trigger endorphin, both of which are mood-boosting hormones.

After implementing all of the above suggestions, you may find one of your colleagues is still feeling low. Has their behaviour or attitude at work changed recently which is affecting their performance? Are they taking days off sick when they used to be a reliable employee? If so, have an informal chat with them first to make sure everything is ok. There could be something more serious affecting them than just the winter blues. Don’t just hope things will improve – take positive action.

Call one of our HR Specialists at Peach Law for advice or assistance with any employee issues on 0161 478 3800, or alternatively email us: hello@peachlaw.co.uk

Every year the UK will go through a period of treacherous and adverse weather and the topic of not being able to get to work is inevitable. Social media goes into melt down with who has the worst weather with images of flooded roads, or snow covered cars. There are issues with public transport, road blockages or school closures. Acas advise that employers should “not force employees to make the journey to work in adverse conditions”. Employees should not put their Health and Safety at risk. Here is our checklist to help you manage this situation.

• What is the legal position?
Employees are not automatically entitled to pay if they are unable to get to work due to adverse weather. Check your contracts- does it say anything about payment? What arrangements have been agreed in the past? If the business has closed the office or informed those to not come into work, they may be entitled to pay depending on the circumstances.

• Pay or not to pay?
Usually it is a balance for employers to think about and very much depends on your business. If you don’t pay, how much of an impact does that have on employee engagement in terms of morale and productivity? Is there anything else that can be done (see below options to consider). Are there contractual lay-off provisions?

• Adopt a flexible and fair approach
Think about the way the situation is handled, be flexible where possible. Think about options for employees to choose when the circumstances arise;
– Working hours- can the lost hours be made up at another time?
– Can employees work from home?
–Can they work at a different location?
–Is there an option to use annual leave?
Acas advise that it is important to “maintain good, fair and consistent employee relations and help prevent complaints to employment tribunals”.

• Policy and procedure
What do you have in place? Is there a process that employees and their managers need to follow? We would advise that this is documented and that everyone is clear of the steps that they need to follow in times of adverse weather.

• Don’t believe your employee?
If you feel that an employee is taking advantage of the bad weather as a reason for not turning up for work revert to your Company’s disciplinary policy, ensuring that a thorough investigation is carried out.

• Employee’s child’s school closed?
An employee is entitled to unpaid leave in an emergency situation to look after dependents. It is important to maintain communication with the employee so that it is clear what the employee has in place going forward and when they are likely to return to work.

For further information about how to manage a particular issue related to you and your business please get in touch and we will guide you to an efficient resolution. You can contact us on 0161 478 3800 or email on hello@peachlaw.co.uk.

It is that time of year where you take stock of the previous year and start planning for the year ahead. Small changes can still make a great difference and they don’t have to be onerous. Here are 10 ways in which you can start making 2017 a success!

1. Goals & objectives
Have you set your business goals? Have they been cascaded down to your teams and employees? It is important for employees to know what the overall business objectives are and how they contribute to the success of the company. Having a clear idea of what you are going to do gives you a better chance of sticking to it.

2. Communication
Review your communication strategy. Communication is a very common gripe amongst employees. It is something here at Peach we are very passionate about and always promote within the clients we work with. Effective and regular communication reduces any rumours and speculation ensuring the right information is conveyed.

3. Deadlines
Commit to sticking to deadlines and meetings if you have booked them in. Rearranging performance meetings may end up …

Click here to receive our full Top 10 HR New Year’s Resolutions via email, free!

Management is a tough job, doing your own work and managing others, it is a skilled balancing act. People management is inherently tricky due to the very nature that everyone is different and may require and respond to being managed differently. Some managers may put managing people on the back seat, focusing their priority on the day to day job. This is normal, but should be noted that there are usually consequences of this.

For example, here are some common comments managers may say in the work place;
• “Jo is off sick again, and it’s always a Monday”
• “Jennifer keeps making mistakes”
• “Jack has been moody and snapping at everyone”

The first question I normally ask is have you spoken to them? More often than not the answer is no. This is for many reasons, mostly “I don’t have time”, “there doesn’t seem to be a place to speak” and “am I allowed?”. Managers may often get stuck with hoping a particular situation resolves itself without their input. The situation then festers and becomes harder for managers to manage and they are getting more frustrated. Little things become bigger issues, if not nipped in the bud and end up being very costly in terms of productivity, management time and employee engagement.

Speaking to the employee and finding out what is going on is the quickest and most effective way of resolving most issues.
• If someone is off sick, carry out a return to work meeting with them. Find out what is going on before jumping to conclusions. Put it forward to the employee that there is a pattern of them being off Mondays and find out their response.
• If someone keeps making mistakes, tell them. Explain what the mistakes are and discuss how these can be prevented. Be clear on your expectations and ensure that the employee understands the situation. If an employee is not told about it, how can they improve?
• If someone is moody and snapping speak to them on a 1:1 basis. Ask them if they are ok? Explain that you have noticed they are speaking to people in a particular way that is not acceptable or that they are reacting inappropriately to certain situations. There may be something personal going on affecting them and they may not know that it is having an impact at work.

Other forms of communication such as emails are commonly used to communicate to employees highlighting any performance issues, or in place of awkward conversations. However, whilst having an email trail is great for record keeping and referring back at a later date, a tone of an email can be misconstrued. Employees can sometimes interpret the message of an email in a different way it was intended. Likewise, employees should not be afraid to approach their manager and ask for a meeting.

Although businesses may be taking advantage of the various different ways technology has improved communication, the importance of a conversation is an incredibly powerful tool.

If you want to discuss a particular situation you are dealing with please get in touch with one of our HR Specialists on 0161 478 3800 or via email on hello@peachlaw.co.uk.

In light of this week being Anti Bullying Week, Peach have taken a look at bullying and harassment in the workplace and how businesses can prevent this occurring in their Company. Here are our top 10 tips!

1. Understanding- Do you know what bullying and harassment is?
Acas gives the following definition: ’Bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient’. It can be a one-off incident or reoccurring acts. Bullying and harassment doesn’t just occur in school playgrounds but can be part of the overall culture of a business.

2. Do you know what it can look like?
Bullying and harassment can look like a number actions such as; personal insults, rudeness, threatening behaviour, unwanted sexual advances and harassment, setting impossible deadlines, persistent unwarranted criticism. Even silence or inactions from an employee may indicate there is an underling issue. Pranks and banter in the workplace may seem like harmless fun but these acts may not be seen that way to others. Are you confident that you are protecting your employees from bullying and harassment?

3. Do you know the effects?
There are significant effects that can manifest from bullying in the workplace such as;
– some may …

Click here to receive the full Top 10 tips to managing bullying and harassment via email, free!

Are you a Legal Secretary/PA? Looking for part-time work? This is an exciting time to be part of a forward and fresh thinking business.

Peach Law are looking for someone to work 2 days per week (Thursday & Friday) 9.00am – 5.30pm, who can hit the ground running with enthusiasm and efficiency.

We are looking for someone with excellent IT skills, able to audio/copy type with high quality administrative experience. The role will involve working closely with the Managing Director to assist with all aspects of the smooth running of the office and the development of the business.

Experience as a Legal Secretary is essential with excellent interpersonal, organisational, verbal and written communication skills.

If you are interested, feel you have the suitable skills and want to join a vibrant and exciting new team, please send your CV and a covering letter to hello@peachlaw.co.uk and apply now! A full job description is available.

The Commons Select Committee on Business, Energy and Industrial Strategy ( ‘BEIS’ previously known as ‘BIS’) has confirmed that an inquiry into the future world of work is to be undertaken. The inquiry will be looking in to the rights and status of agency workers, those who are self-employed, and those working in the ‘gig economy’. The ‘gig economy’ is the term now commonly being used to describe an environment in which temporary positions are common, and where organisations contract with independent workers for short-term engagements.

Overall, as we know the world of work is evolving and changing, and the BEIS Committee will explore the status and rights of workers ahead of its report to be entitled, “The future world of work – the status and rights of workers”. It is believed that the inquiry also intends to consider other issues such as working conditions, and low-pay.

Recent cases including the practices at Sports Direct, and the case regarding the status of Uber drivers have highlighted some of the pressing issues that are to be considered by the inquiry. (The Uber case is considered further in another post by Peach Law).

The committee is calling on “all interested parties” to respond to a consultation on the issues, including whether “the balance of benefits between worker and employer [is] appropriate” for agency and casual workers, and whether there should be “steps taken to constrain the use by businesses of agency workers”.

Written submissions can be made by clicking here:

We are sure that the outcome of the inquiry shall make for interesting reading and Peach Law shall provide further updates on this once they are available. In the meantime, and as always should you have any questions arising out of this article, please do not hesitate to contact Lindsey or Sarah within our employment law team on 0161 478 3800 or on hello@peachlaw.co.uk

The Employment Tribunal has now handed down its decision in the case brought by drivers against the company Uber. The decision confirmed that the two drivers who brought the cases are ‘workers’ within the meaning of the Employment Rights Act 1996, and are not ‘self-employed’.

The Uber concept is essentially a taxi service that is provided through a mobile app. In the Employment Tribunal’s view, any driver who has the app switched on, is able and willing to accept assignments, and if within the territory in which he or she is authorised to work, is then working for Uber under a worker contract.

The ruling means that Uber drivers will be entitled to a limited number of employment rights (similar but less than those afforded to employees) which will include:

• the national minimum wage (and the national living wage),
• 5.6 weeks paid annual leave each year,
• a maximum 48-hour average working week, and rest breaks,
• protection of the whistleblowing legislation.

As the drivers are workers, and not employees, they do not have entitlement to:
• the ability to claim unfair dismissal,
• the right to a statutory redundancy payment,
• the protection of TUPE, if Uber sells its business.

This decision is likely to be appealed further to the Supreme Court as its ruling will have implications on many workers in the ‘gig economy’. (The ‘gig economy’ is the term now commonly being used to describe an environment in which temporary positions are common, and where organisations contract with independent workers for short-term engagements).

The implications of this decision……

If you are engaging people on a ‘self-employed’ basis, ask yourself the question, are they a worker? Or simply ask us at Peach Law.

This is an interesting decision and we do not predict this is the end of the Uber case… Peach Law will continue to update on this case as any developments arise.

Legislation on shared parental leave and pay was introduced in early 2015, the legislation gives Mothers the option, and the right to transfer leave due after the birth of their child, to their partner if they so wish.

The Glasgow Employment Tribunal has now heard the first case which has dealt with this issue, regarding a Father who was discriminated against by his employer.

The case, ‘Snell v Network Rail Infrastructure Limited’, heard how the terms of a ‘family friendly policy’ in place at Network Rail indirectly discriminated against Mr Snell, a Father, as he was only able to receive statutory shared parental pay whereas, Mrs Snell, the Mother was able to receive full pay during the shared parental leave.

Background
In this case, Mr Snell, the Claimant and a Father, pursued a case against his employer, Network Rail (the Respondent) citing that their policy on shared parental leave and pay, discriminated against men on the basis that Mothers were entitled to enhanced shared parental pay, while Fathers were entitled only to the statutory pay.

Both Mr and Mrs Snell were employed by Network Rail, Mr Snell wished to take 12 weeks leave and Mrs Snell, 27 weeks leave. Prior to starting his claim, Mr Snell raised a grievance in respect of what he perceived to be sex discrimination, this was rejected by Network Rail and Mr Snell commenced a claim at the Employment Tribunal.

Before the full hearing Mr Snell withdrew his claim for direct discrimination and Network rail agreed not to contest the claim of indirect discrimination, which meant that the Tribunal could focus its attentions on what remedy to award.

The Claimant was awarded approximately £25,000 including an award for injury to feelings and for future loss, which reflected the difference between statutory shared parental pay, and what the Claimant would have received if he had received the enhanced level of pay as a Mother would have.

Employers take note…
This case provides guidance to employers on a relatively new piece of legislation. Employers should review their policies and ensure that men and women are treated equally and not discriminated against.

Network rail has reportedly now changed its family friendly policy to state that parental leave is only paid at the statutory rate for all employees. Employers should therefore consider any policies currently in place and the wording so as to avoid any potential claims of discrimination wikipedia reference.

Please contact Lindsey or Sarah on 0161 478 3800 or on hello@peachlaw.co.uk should you wish to discuss shared parental leave further or your family friendly policies.

Are your employees unhappy at work? What signs have you seen of staff being uninterested? What can you as a business do about it?

Ensuring that your employees are fully engaged and you are getting the best out of them can be tricky for most businesses. A disengaged workforce can cost a business a fortune in terms of lack of productivity, costs associated with recruitment and not to mention the employer branding and reputation in the market.

Here are some quick tips for you to think about on how you can increase employee engagement;

1. What is it?
What does employee engagement mean to you and your business? What does it look like? The Chartered Institute of Personnel Development (2005) say that “typical phrases used in employee engagement writing include discretionary effort, going the extra mile, feeling valued and passion for work”. Make sure you have a clear idea about what you want from your employees.

2. Leaders
The leaders of the business need to …

Click here to receive the full Top 10 tips on Employee Engagement via email, free!

The Court of Appeal has handed down its decision in the case of ‘British Gas -v- Lock’. This is a fairly long running case and it is significant for employers with regards to how holiday payments are made to employees. The case was previously heard at the Employment Tribunal, the Employment Appeals Tribunal and now the Court of Appeal, with each forum concluding that commission payments should form part of holiday payments.

The facts of the case
Mr Lock was a salesperson earning a basic salary with variable commission. Commission was payable to him when a customer started to purchase their gas from British Gas, this meant that no commission could be earned whilst Mr Lock was on holiday, which in turn meant that he would lose income. Mr Lock pursued a claim for unlawful deduction of wages in the form of unpaid holiday pay, which was successful in the Employment Tribunal, and also on appeal at the Employment Appeals Tribunal.

The Law
Article 7 of the Working Time Directive provides that member states must ensure that workers have the right to at least four weeks’ paid annual leave, it does not however, specify how statutory holiday pay should be calculated, which in theory is left to national legislation to decide.

The European Court of Justice held that “paid annual leave” in Article 7 means that workers on holiday should receive their “normal remuneration” and this includes commission payments.

The Court of Appeal’s decision
The latest decision in this case repeats the judgments previously handed down, namely that commission payments are payable. Therefore, nothing has changed!

The overall outcome……Good news for Employees?
This case is important for any employer that operates a commission scheme, or regularly makes other payments in addition to basic salary, for example overtime. The outcome confirms that when employers calculate holiday pay they should note that workers are entitled to be paid a sum in respect of any commission, or other elements they would have earned whilst working if they had not been on holiday.

Unfortunately, when it comes to guidance from the Court as to how an employer should calculate this sum, none was actually provided…. so we shall have to watch this space on any guidance to come at a later date. Peach Law shall provide you with any updates once available.

Should you require any advice on holiday pay please do not hesitate to contact out legal team on 0161 478 3800 or on hello@peachlaw.co.uk

The EAT has heard the case of ‘Sandle -v- Adecco’ and has answered no.

The background
In this case, the Claimant, Ms Sandle was an agency worker employed by the Respondent, Adecco, a recruitment agency that provided temporary agency workers to its clients. Ms Sandle was assigned to a company who due to concerns over her performance decided to terminate her assignment. The company advised Adecco of this and gave Ms Sandle one month’s notice. Adecco did not take steps to find other work for Ms Sandle, and they did not appear to make much effort to contact her, as they assumed that she was not interested in further agency work. Ms Sandle, did not contact Adecco at this time in respect of alternative work.

Ms Sandle chose to bring a claim for unfair dismissal at the Employment Tribunal against Adecco.

The outcome
The Employment Tribunal found that there had been no dismissal as Adecco had done nothing to communicate a dismissal to Ms Sandle. Ms Sandle chose to appeal this decision.

On appeal, the Employment Appeals Tribunal (EAT), agreed that an employer does not need to directly communicate the termination of a contract of employment to an employee, and it can in fact be implied, for example, by a failure to pay the employee, by issuing the employee with their P45, or by ending the employee’s current role and offering the employee an alternative role. The EAT did confirm that when terminating a contract of employment there must be a form of communication and the employee must be made aware of this.

In this case there was no such communication and therefore, Ms Sandle’s appeal failed.

Point to note…
This is in an interesting case as there was no clear communication of the employment terminating by Adecco to the individual. Adecco completed a P45 for payroll purposes, but it did not send that on to the individual in this case. If the termination had been communicated to the individual and for example the P45 had been sent on to her, the outcome of this case could potentially have been different for the Agency involved.

Should you wish to discuss any matters regarding agency workers or the termination of contracts of employment, you should contact one of our experienced legal team on hello@peachlaw.co.uk or on 0161 478 3800.

As it is World Mental Health Day we look at what you as a business can do to support employees.

Did you know that 1 in 4 people will suffer from mental health? It is an important issue that struggles to get talked about due to the stigma attached to it.

Here at Peach we have put together top 5 tips on managing wellbeing in the workplace.

1. Embed a wellness culture
Employee health and wellbeing should be high on the agenda. There should be no shame in talking about mental health. Think about health and wellbeing programmes where employees can voice their ideas and are listened to. Employees should not be discriminated against should they have a mental illness.

2. Training
Management training as well as Company-wide training would further show the company’s commitment to tackling health and wellbeing. Training on stress management techniques will encourage employees to recognise their own stress levels and support in managing it themselves. We would advise businesses to train managers in spotting signs including increase in absence, poor performance or moody behaviour and monitoring these behaviours.

3. Influence from Managers
Managers have a great influence on the wellbeing of employees, factors could include; workload, work variety, work relationships, involvement, communication, spot signs of bullying, sense of purpose and stress. Businesses should support Managers in managing in times of change and challenge to reduce the negative effect that it may have. Managing this effectively can increase employee engagement.

4. Initiatives
There are plenty of initiatives that businesses can adopt to support employees’ wellbeing such as;
•Promoting healthy eating,
•Encouraging employees to take their entitled breaks- it can be too easy to work through lunch,
•Promote exercise- walking around at lunch time, cycle to work schemes, gym memberships,
•Employee assistance programmes can provide counselling and advice,
•Promoting work/life balance- flexible working.

5. Communication
Communication is paramount. However, do not push an employee to talk about something that they are clearly uncomfortable with. Offer them options and be available when they are ready.
When businesses are going through change, communication can take a back seat leaving employees wondering and worrying about what is happening, is their job ok? Always communicate even if there is nothing to communicate, it is important to instil trust and respect from the employees.

Would you like support in promoting a wellness culture in your business? We can also carry out an audit to see where certain HR processes can affect an employee’s wellbeing. Contact one of our HR Specialists via hello@peachlaw.co.uk or call 0161 478 3800.

What is best practice when it comes to writing a job advert and trying to attract the very best possible candidates for a role?

There are some common pitfalls when advertising for potential, new staff, and it is important to ensure that employers do not fall foul of the Equality Act 2010 when advertising. Legally there is no set process to follow in terms of what can and cannot be put in to an advertisement, therefore an employer must be mindful as to whether a job advertisement could be perceived as discriminatory on the grounds of a protected characteristic (sex, race, disability, religion or belief, sexual orientation, gender reassignment or age).

Employers should be aware of both directly discriminating against applicants and indirectly discriminating against applicants. Both are defined within the Equality Act 2010.

Direct discrimination occurs when an individual treats another individual less favourably than he would treat others due to one or more protected characteristic. Therefore, job adverts should not for example state that they only wish to receive applications from people who match a specific criterion, which would exclude others who do not match that description, i.e. a 25-year-old, Italian woman.

Indirect discrimination occurs when an organisation’s practices, policies or procedures have the effect of disadvantaging people who share certain protected characteristics. An example could be advertising a job where all applicants must have ten years’ experience in the field, thus a younger person could be well qualified, but not eligible for the job.

We have set out some useful tips on what to avoid below, which employers should consider when preparing a job description advertisement…

Avoiding sexual discrimination
An employer in most circumstances can not specify which gender can or cannot apply for a job.
There are certain roles where there is a genuine occupational need for an employee to be of a certain gender, such as within single sex institutions like hospitals and prisons. We would recommend that job titles are not gender specific for example ‘salesman’ or ‘waitress’, and alternative wording such as ‘salesperson’ or ‘waiting staff’ be used.

Avoiding age discrimination
Job descriptions should not stipulate specific age requirements, or upper or lower age limits. Employers should also be mindful of using vocabulary which could have age related connotations such as ‘youthful’, ‘mature’ or ‘energetic’. Such terms could be seen to be excluding individuals of certain ages.

Avoiding racial discrimination
In some ways this can be seen to follow the same principles as sex/gender discrimination, and again in some situations being of a certain race can be a genuine occupational requirement. If language skills are required for a particular role we would suggest that an advert should be appropriately worded as to not exclude certain races, i.e. if the job requires an applicant who can speak French the advert should not request French applicants but French speaking applicants.

Avoiding disability discrimination
It’s important for all businesses to ensure disabled candidates have as many opportunities to join their company as non-disabled applicants. This should be noted when preparing a job advertisement but also for the entire recruitment process, including making necessary adjustments for interviews such as having wheelchair access.

Ultimately, the choice of words used within a job advertisement is vitally important not only to attract the right candidates to a role, but also to ensure that certain prospective candidates are not deterred from applying in a manner which could be viewed to be discriminatory. Before you post your job advert, we suggest that you consider if the wording could be construed as either directly or indirectly discriminatory. Further, we would suggest that employers consider where they place job advertisements, for example online and/or in newspapers, as this could also be construed as potentially discriminating against certain individuals.

If you would like to discuss any of the above further with our legal team or HR specialists, please contact us on hello@peachlaw.co.uk or on 0161 478 3800.

After only approximately 6 weeks in charge, Sam Allardyce’s resignation as the Manager of the England National football team has dominated recent headlines. The resignation came following undercover reporters revealing allegations against him relating to player transfer rules.

From the press reports, it would appear that the allegations brought against Sam Allardyce could amount to gross misconduct, which in turn could have led to his dismissal. As with any employee found guilty of gross misconduct, it is possible that an employment relationship can be terminated with immediate effect, and without notice pay as a result.

It is reported that the Football Association (FA) and Sam Allardyce mutually agreed to terminate his contract with immediate effect, soon after the allegations surfaced. It has not been reported as to how exactly the employment relationship terminated but one possible, and likely option would be that the parties entered in to a settlement agreement (previously known as a compromise agreement).

Could Sam pursue an Employment Tribunal claim?
All employees (including the England Football Manager!) have a right not to be wrongfully or unfairly dismissed. The possible legal routes for an employee such as Sam would be:
i.) A claim for wrongful dismissal – without seeing Sam’s contract of employment and without being fully aware of the evidence available, it is difficult to provide definitive advice, however, in this scenario if Sam had been found guilty of gross misconduct, due to acting in a manner which went to the heart of his contract of employment, and broke the relationship of trust and confidence between himself and his employer, it is unlikely that he would be legally entitled to any notice payment, and therefore would not have a claim for wrongful dismissal.
ii.) A claim for unfair dismissal – Sam had only been in the role for approximately 6 weeks at the time of termination, as with all employees an individual needs to have 2 years’ continuous service before they are entitled to raise a claim of unfair dismissal against their employer. Unless the individual can prove that their dismissal was discriminatory, and related to a protected characteristic, a claim for unfair dismissal would fail.
iii.) A settlement agreement – if, as it appears from the press, Sam has entered in to a settlement agreement with the FA, the terms of such an agreement would prevent Sam from pursuing any legal claims against his former employer, as by signing the agreement he has effectively waived his rights to pursue any possible claims.

Therefore, and in light of the above, it is unlikely that Sam would have any viable claim to pursue in an Employment Tribunal, and if he did pursue a claim, the likelihood of success would be low.

The outcome
Press reports suggest that an out-of-court settlement (settlement agreement) was reached to resolve this matter. A settlement agreement is a legally binding contract made between an employee and employer, either during or after employment, which formally agrees the leaving terms between the parties and prohibits the employee from bringing legal action against the employer at a later date. It is standard practice for agreements to have a confidentiality clause which will prevent either party divulging details of the agreement, including any payment, to third parties. Under the agreement the parties will usually also be obligated not to make any derogatory or disparaging statements about the other party.

Settlement agreements are normally used to bring an employment relationship to an end, in a mutually agreed way. They are often used in situations where an employer and employee feel that their employment relationship is no longer working and a clean break is the best way to proceed. If you would like further details in respect of settlement agreements, or on how to end an employment relationship, you should contact Lindsey or Sarah in our legal team on hello@peachlaw.co.uk or on 0161 478 3800 for further assistance.

Does an employer have a duty to make reasonable adjustments for a disabled employee to continue to pay a higher salary when an employee is moved to a lesser role?

According to the recent decision of the Employment Appeal Tribunal (EAT) in the case of ‘G4S Cash Solutions (UK) Ltd -v- Powell’, the answer is surprisingly, yes.

The facts of the case

Mr Powell worked for GCSU Ltd (the Company) as an engineer responsible for maintaining ATM’s in central London. Over the years, he developed back problems and, by mid-2012, he was no longer fit for jobs involving heavy lifting or working. Upon his return to work following a period of sickness absence in 2012, Mr Powell began working in a newly created role of ‘key runner’, which involved driving from the Company’s depot to deliver parts and keys to its ATM engineers, this role allowed him to travel between jobs by public transport. The Company continued to pay Mr Powell his original engineer’s salary for the key runner role, and he considered this to be a long term arrangement.

In May 2013, the Company considered discontinuing the key runner role for operational reasons. It told Mr Powell that the role was not permanent and gave him a list of alternative vacancies to consider, stating that if nothing was suitable then he could be dismissed on medical grounds. Mr Powell consulted his solicitor and presented a grievance, stating that the Company was attempting to alter his terms and conditions.

As a result, the Company decided to make the key runner role permanent, but at a lower rate of pay to reflect that the role did not require engineering skills, which in turn entailed a 10% pay reduction. Mr Powell was not willing to accept this reduction and as such he was dismissed from his employment on 8 October 2013.

An Employment Tribunal (ET) rejected Mr Powell’s claim that there had been an agreed variation to his contract of employment when he commenced in the key runner role, which entitled him to continue in that role at his original salary on a permanent basis. The ET held that the Company was required under Section 20 of the Equality Act 2010 (‘duty to make adjustments’), to employ Mr Powell as a key runner at his original rate of pay.

The outcome

The ET found that Mr Powell’s dismissal was discriminatory and unfair, and that the reasonable adjustments required extended to maintaining Mr Powell’s former pay in his new role. The Company appealed against this finding, and Mr Powell cross-appealed on the contractual variation point.

The Appeal

The EAT found that there had been a variation of Mr Powell’s contract to begin with which was agreed but a subsequent variation could not be imposed without his acceptance, when he undertook the role of key runner and he was not entitled to continue in that role on a permanent basis on a higher salary.

Additionally, the EAT found no reason in principle why the duty to make reasonable adjustments would not extend to protecting an employee’s pay, in order to counter a disabled employee’s disadvantage.

Practical tips for Employers

• Employers should always be clear when offering roles to employees as to whether they are intended to be permanent roles or for a defined fixed period.

• Be alive to the fact that consent maybe required to make a reasonable adjustment which may change an employee’s terms and conditions.

• The EAT confirmed that it did not expect claims for pay protection in circumstances like in this case to be an ‘everyday event’ for ET’s, however, it did confirm that it was possible to foresee cases where it may be a reasonable adjustment in order to get an employee back to work, or to keep an employee in work in accordance with the objective of the legislation.

• This decision highlights that the question in such situations will always be, is it reasonable for an employer to have to take steps to avoid a disabled employee’s disadvantage? This will have to be assessed on a case by case basis, taking in to consideration the size and resources of your business and the overall practicality and financial cost to the business.

This is an interesting case and an outcome that employers should be mindful of, when faced with decision making regarding reasonable adjustments. Should you require any advice or assistance with regards to making reasonable adjustments in respect of an employee you should contact Lindsey or Sarah on hello@peachlaw.co.uk or on 0161 478 3800.

You have been asked by an employee if they can start working flexible hours to help manage their childcare arrangements. Do you know what to do? Are you taking advantage of flexible working and the benefits for not only your employees but for your business also? In today’s society the need for flexibility has never been greater and employees have many competing responsibilities in their lives.

What is flexible working?
The CIPD describes ‘flexible working’ as a type of working arrangement which gives a degree of flexibility on how long, where, when and at what times employees work.

What flexible working can look like?
•Reduced working hours.
•Compressed hours- working usual hours in fewer and/or longer days.
•Part time working.
•Job sharing- sharing the responsibility of a full time position.
•Term time working- reducing hours or taking time off during school holidays.
•Working from home- advances in technology make it simpler to keep in touch.
•Flexitime- usually adopting a core hours’ approach.

Benefits
The CIPD, following their research regarding flexible working, indicate the direct benefits for a business are associated with real estate due to remote working and hot desking arrangements. Indirect benefits fall under the psychological contract where employees may be more emotionally engaged with the business.
Other benefits can include;
•Attracting and retaining employees is key for businesses and flexible working has become high on the agenda.
•Promoting the benefits internally as well as externally will increase company profile and brand within the market. Being an employer of choice!
•Reduction of absence, sickness and stress levels.
•A more efficient and productive organisation.

Managing flexible workers
•Management play a critical role and must ensure that it should be more about performance and outcomes rather than presenteeism.
•Training for management to understand the benefits of flexible working can bring to an organisation.
•Set clear objectives and expectations.
•Trust is key and managers need to trust employees and employees need to feel trusted.

Statutory process
Effective from 30 June 2014 the flexible working law changed whereby anyone who has 26 weeks length of service has the statutory right to make a flexible working request, it is not limited to those with children.
The employee needs to make a request in writing, stating what they want to change and how they think it could affect the business. The employee must state whether they have made a flexible working request before and the date of that application.
Acas advise that employers are to consider the employees request for flexible working in a reasonable manner. It is advisable to arrange a meeting with the employee once the request has been made to discuss the details. Ensure that this meeting is dealt with like any other management conversation, in a confidential manner. However, if the employer is happy to accept the request a meeting may not always be needed. The employer must also confirm the decision as soon as possible to the employee of the outcome of the request. The law requires the process to be completed within three months of the request being received, this includes any appeals.
Employers can only refuse a flexible working request for the following reasons;
•the burden of additional costs
•an inability to reorganise work amongst existing staff
•an inability to recruit additional staff
•a detrimental impact on quality
•a detrimental impact on performance
•detrimental effect on ability to meet customer demand
•insufficient work for the periods the employee proposes to work
•a planned structural changes to the business.
Wherever possible it is advisable to reach an agreement on flexible working within the workplace. Contact one of our Employment Lawyers for further guidance!

Challenges
•Increase administration in terms of record keeping
•The risk of being under staffed at certain points of the working day.
•In terms of job sharing there may be two lots of administration, induction and recruitment costs.
•Working longer hours may cause fatigue and increased absence.
•If not fully implemented effectively, benefits are not fully gained.

Review and guide
•Employers are to review existing policies and procedures to ensure that it accomodates any flexible working practices in place.
•Review absence and engagement levels to see what the impact of flexible working arrangements has had on the business find more information.
•Train managers on how to manage flexible working requests and treat employees fairly in the process.

Managing flexible working can be a complex process and we would always recommend you seek guidance on managing this. For further information or if you want to discuss a current issue please contact us hello@peachlaw.co.uk or 0161 478 3800.

September can bring change to many people’s working lives, some may start a new job, others may have children starting school or businesses may be rethinking their business strategy. Do you have new employees starting to work with you? Do you know what makes an effective induction and onboarding process? When an employee starts work with you it is key to ensure that you are prepared for when they join. There is nothing worse than a new recruit turning up and no one knows who they are; no resources are ready and the line manager is nowhere to be seen. Employers should be mindful that when a new employee starts it isn’t about their first day or week, it is an ongoing process, which enables them to absorb the information gradually rather than hit them too much too soon. The induction process allows new employees quickly to become effective and motivated.

What is induction?
The CIPD (2015) state that “induction at work refers to the process where employees adjust or acclimatise to their jobs and working environment”. All businesses should have an induction process whereby they introduce the new employee to the business and have to tools and resources to be able to start the job. Onboarding looks at a rather larger picture from the recruitment stage up until the employee is well and truly settled and performing to the standard expected of that role.

Benefits
•Employee settles in well.
•Gains an understanding of the organisation’s policies, procedures and culture.
•Lays the foundation for a positive working relationship.
•Promotes corporate image and establishes the company’s personality.
•The employee will get an understanding of where they fit within the business and how they contribute.;
•They are more likely to remain with the organisation- reducing recruitment costs.

Plan/Timetable
•Having a structured plan of what is expected in the induction process can limit any stress the employee may feel when starting a new job.
•The plan should look at who should be involved, meetings you want them to attend and people they need to meet.
•Ensure you have line manager engagement from the start, after all it is their responsibility to ensure that the new employee settles in well into the business.

Remember!
•Continually review the induction process to ensure that it is relevant to the business and the employees. Is the corporate information up to date? Get feedback from the employees about the induction process, what they liked and what they felt could be improved upon.

Please contact our HR Specialists at Peach hello@peachlaw.co.uk or 0161 478 3800 to discuss further on the topic of inductions. Or click here to complete the online form and we will send you our Peach top tips for an effective induction!

Any Employment Lawyers looking for a change or HR professionals looking to join our exciting team? Great opportunity to be part of a growing business with a difference!
Contact us for further details at hello@peachlaw.co.uk or call on 0161 478 3800.

Managing employee performance is never plain sailing and can be stressful for both the employee and the manager if not done correctly. There are always situations that test and frustrate managers and if not tackled early can manifest into something more complex.

Do you know what poor performance looks like? It can be exhibited in various ways and having an understanding of what it is could be the key to managing it. Things to watch are poor quality of work, lack of achievement against targets/deadlines, their behaviour and approach to work, carelessness to name but a few. Communication is the key here!

Here are Peach’s top 5 tips for managing poor performance;
1. Why don’t managers want to deal with it? There are many reasons, some don’t think that it is important, most say that they don’t have time, sometimes it may not be clear on what is causing the poor performance and they don’t know how to address it. For some managers it may be that they don’t want to be seen as the “bad guy”. It is important for managers to be trained to combat underperformance.
2. Implications. What happens when you don’t deal with poor performance? You may see reduced profit for the business, it could affect the team’s ability to meet deadlines, low quality of work may lead to more customer complaints, low team morale and training needs may not be identified.
3. Communicate. Find out why your employee is underperforming. It is important to identify the performance gap- the gap between what an employee should be doing and what the employee is actually doing. More often than not this can be managed effectively at this stage. Just having a 1:1 conversation explaining concerns with their performance and finding out if there is anything the company can do to help solve the issue. There are many causes of poor performance, it could be there is a lack of understanding of their role, dealing with personal issues, poor management/leadership, insufficient training/resources, or it could be that they lack any work motivation.
4. Performance Improvement Plan
If informal chats are not working, the next stage would be to start a Performance Improvement Plan (PIP). This is a great platform to put down objectives that need to be achieved and set target dates for them to be completed by. Ensure that these objectives are SMART (specific, measurable, achievable, realistic and timely) and consider whether any additional resources are required.
5. Review
It will be important to review the PIP regularly. If there are no signs of improvement you may be required to take this down a more formal route. We would recommend you contact Peach to advise on what to do next to minimise risk of any successful unfair dismissal claims.

For further information on managing performance in the workplace or if you would like support on training managers dealing with poor performance please contact us on 0161 478 3800 or hello@peachlaw.co.uk.

Pokemon Go is the app everyone is talking about. It is a virtual scavenger hunt, making you get up and search and collect characters in the real world. There are increasing numbers of people young and old walking around holding their smart phones up trying to catch various species of Pokemon. Launched on 6 July it has already become the fastest growing app in the UK. It is a game that encourages obsessive behaviour, so it is not surprising that according to a Forbes poll 69% of users play during working hours. The poll indicates that the users are bonding with co-workers and are exercising more due to the app.

Is it becoming disruptive?

Some businesses may experience the following;
•Employees are away from workstations for extended periods
•Loss of productivity- if employees are moving around and changing location chances are they are not being productive.
•Misuse of company property
•Attendance- early leaving, lateness, absence.
•Delays in completing tasks
•Increase in accidents, incidents and near misses

How to manage this?

The phenomenon doesn’t appear to be age-limited. Businesses should be clear on what they expect but also try and use the community that may have developed from this. Early reports are that it gets people talking and working together, sharing ideas and views.

However, caution should be applied for those working in factories or construction sites. There have been reports of people walking into walls and falling into rivers so your duty of care is paramount.

Tips on managing disruption;
•Put policies in place regarding the use of mobile phones in the workplace. Have employees downloaded the app on company phones? It may be worth reviewing your policies in this case.
•Make sure your driving policy makes it clear that the use of mobile phones whilst driving is illegal
•Investigating and disciplining where necessary
•Continue with communicating priorities and deadlines, ensuring that performance doesn’t drop.

Embrace?

You may want to utilise the benefits that Pokemon Go can bring and turn it into a team building tool. Using breaks and lunch times to play it and perhaps hold competitions. Employees would be less likely to sneak away. The mobility required would help staff wellbeing as exercise is known to reduce stress and can therefore make some people more productive.

In the end, Pokemon Go can be seen as just another distraction in this social media world and as such should be treated the same as Facebook, Twitter and Whatsapp to name a few. Adopting a consistent approach on managing this in the work place will be key.

If an employee is absent from work due to sickness, can they carry forward their annual leave entitlement?

The answer following the decisions of recent case law, is yes, and this has been reaffirmed by the European Court of Justice (ECJ) in the case of ‘Sobczyszyn -v- Skola Podstawowa w Rzeplinie’.

The facts of the case

• Ms Sobczyszyn was a teacher at Szkoła Podstawowa w Rzeplinie (the school). She was entitled to 35 days’ annual year each leave under Article 64 of the Teachers’ Charter. Ms Sobczyszyn was on sick leave between 28 March and 18 November 2011. On 27 April 2012, she claimed that she was entitled to the annual leave she had accrued in 2011, but had been unable to take due to her sick leave.
• The school disputed her claim, arguing that under the 2011 leave rota Ms Sobczyszyn should have taken her annual leave between 1 and 31 July 2011, and her entitlement had therefore been “used up” by her sick leave which extended over that period.
• Ms Sobczyszyn brought a claim in the Polish courts. The court was unclear whether the Teachers’ Charter complied with the requirements of Article 7 of the Directive, which confirms that every worker is entitled to four weeks’ annual leave.
• The court stayed the proceedings and referred the matter to the ECJ for a preliminary ruling on whether an employee can carry forward annual leave entitlement that was untaken during a period of sick leave?
• The outcome was that if a worker is prevented from taking annual leave due to sickness, their entitlement can be carried forward.

Annual leave entitlement therefore does accrue during periods of sick leave, prior to the Sobczyszyn case this was confirmed in the case of ‘Stringer v HMRC’ (previously known as ‘Ainsworth -v- HMRC’). In this case the ECJ held that:

• a worker who is on sick-leave for the whole of an annual leave year is entitled to a period of four weeks’ paid annual leave, despite the fact they are not actually at work. The national courts can decide whether the paid leave can be taken during that year, or whether it should be carried over to another year, but either way the employee is entitled to be paid at some point.
• the right to paid annual leave is not extinguished at the end of a leave year if the worker was on sick leave for the whole of that year, or if he was absent on sick leave for part of the year, and was still on sick-leave when his employment terminates.

For employers, it is therefore important to recognise that whether leave has been booked by a worker or not makes no difference, if sickness prevents the worker from taking annual leave, the general rule is that workers must be able to use annual leave at a later date. This can be a complex area of law, which often raises questions of how much entitlement can be carried forward and how far back, if at all this provision can be backdated. We would recommend that advice is sought from one of our employment lawyers if you are encountering any issues regarding annual leave entitlement, arising out of sickness absence.

Future of Performance Appraisals
Your company has decided to do away with annual performance appraisals, now what? What are you replacing them with? Whatever it is it needs to be meaningful.
Where is the structure? What will you refer to when the time comes for performance management or redundancy? From a legal perspective the requirement to have evidence to confirm how an employee is performing can be an integral part of any unfair dismissal claim.
We have been discussing this in the Peach office looking from a HR perspective as well as the legal angle. Accenture announced last year that they were scrapping annual appraisals. Hooray! I hear managers cry. However, this was the headline but looking further in to it they are still initiating “continuous feedback”.

Annual Performance Appraisals
Appraisal schemes have been around a long time and can be seen as a painstaking process for managers, it is rare that they have bought into the process and can be a long drawn out task. Appraisals can also be seen as a “HR” system that they impose on to managers where employees and managers can’t see any value. A common bias in annual performance appraisals is the Recency Effect, whereby ratings are influenced by the most recent behaviour ignoring the commonly demonstrated behaviours during the entire appraisal period.
Annual appraisals can be stressful for all sides due to the formality of the situation. If not dealt with correctly some employees can be surprised with the feedback they have received from their manager and likewise the manager may have not realised that their employee may be looking at developing in another area of the business or that they are unhappy in their role.
However, that being said, annual appraisals are a convenient way of rating employees which can then help with reviewing pay, identifying best and poor performers. They offer structure to managers and security that there is a process and system they can fall back on. Sometimes it is the only chance where an employee and manager meet and some employees look forward to this opportunity.

Continuous Feedback
Employees are looking for instantaneous feedback, which mirrors our everyday life now where information is immediately available. Businesses are responding to this and reviewing their systems to meet the needs of today’s worker. Some organisations have developed apps that enables on the spot feedback from anyone within the business. This reflects that this way of performance managing employees happens at the right time and can be more positive and future orientated. Other businesses have adopted monthly pulse checks which look at what an employee has achieved in that month, what they intend to achieve, any improvements to be made and what support is needed.
As this method deals with the here and now it enables goals and objectives to be amended if needs be rather than waiting 12 months, whereby those goals may not be relevant. However, there may be a negative aspect to this as there can be less emphasis on long term goal objectives.
Giving employees regular feedback means it is more reliable, relatable and relevant. Employees can therefore immediately change something if it is not working or feel the praise and recognition increasing their engagement to the business.
To enable continuous feedback to work managers need to be trained and have the right skills on how to do this, for example coaching.
However, one of the most common reasons for managers not being able complete annual appraisals is that they don’t have time. So asking managers to have more regular conversations with their employees may actually be more difficult to carry out. It may be seen as more work for them. This is where your performance management strategy needs to be compatible and bespoke to your business. One-size definitely does not fit all!

Future
In my experience annual appraisals tend to be delayed, up to several months therefore becoming more and more less relevant, bordering on meaningless. This then has an opposite effect on what it is intended to have. Therefore, a change to reflect to where we are today is long overdue.
If you are looking at changing your performance appraisal process the organisation needs to be ready for a different approach. Look at ways to enable your business to embrace a positive feedback culture where communication is open.
However, no annual appraisals process is not the opportunity for managers to devolve their management duties. It is about adopting the positives from both the annual appraisal process and the continuous feedback process. There is still a place for annual goal setting.
You may want to adopt regular feedback/pulse checks to provide immediate feedback which then can feed into a brief annual catch up. The annual meet will be easier for managers as they have the information already and it is a case of summarising and setting long term goals and objectives. Think about your processes and take advantage of the digital technology that is around today.
Whatever you decide it should be simple, have the engagement of the leaders as well as your managers and any support and guidance should be offered and available.

If you are thinking of moving from annual performance process to continuous feedback process or looking at revamping your performance management system contact one of our HR Specialists on 0161 478 3800 or hello@peachlaw.co.uk who can advise and guide you on the next steps.

Is it unlawful to ban a Muslim employee from wearing her hijab (Islamic headscarf) when in contact with clients?

The recent French case of, ‘Bougnaoui -v- Micropole SA’ heard in the Court of Justice of the European Union (CJEU) advised that the answer was yes. The Advocate General has now provided an opinion on the facts. (It is important to note that the Advocate General’s opinion is not binding, it is the role of the Advocate General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible).

The facts of the case

• Ms Bougnaoui, a practising Muslim was employed by Micropole SA as a design engineer. Ms
Bougnaoui wore a hijab (Islamic headscarf) at work and when she visited clients. When
wearing the hijab, her head was covered but her face was exposed.

• A client complained to Micropole SA, and made a request that there should be “no veil next
time”. As a result, Ms Bougnaoui was asked by her employer not to wear her hijab when
visiting clients. She refused to comply with this request and was subsequently dismissed.

• The case heard in the French Labour Tribunal dismissed Ms Bougnaoui’s claim for
discrimination based on her religious beliefs. The Tribunal held that the dismissal was well
founded on the basis of a “genuine and serious reason”. This decision was appealed.

The case was then referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling on whether; Micropole’s policy requiring an employee to remove her hijab when in contact with clients, was a “genuine and determining occupational requirement”, under Article 4(1) of the Equal Treatment Directive (2000/78/EC). (This directive establishes a general framework for equal
treatment in employment).

Advocate General Sharpston concluded that;

• the dismissal of an employee who is a practising Muslim on the ground that she refuses to
comply with an instruction from her employer that she is not to wear a hijab when in contact
with clients of the business, amounted to unlawful direct discrimination on the grounds of
religion or belief.
• the prohibition on direct discrimination extends to manifestations of religion or belief (in this
case wearing a hijab). Ms Bougnaoui was treated less favourably on the grounds of her
religion than a comparator would have been treated in a comparable situation.
• discrimination would only be lawful if it based on an “occupational requirement”, which was
“genuine” and limited to matters which are absolutely necessary in order to undertake the
professional activity in question.

Interestingly this decision is in contrast to the opinion of Advocate General Kokott presiding over the case of ‘Achbita v G4S Secure Solutions NV’, which we reported on in our July edition of Peach Press. The Achbita case concluded that prohibiting an employee from wearing a headscarf can be justified by an employer’s general policy of neutrality, where the ban is applied consistently to all visible signs of religious or philosophical beliefs.

We would advise all employers to take a cautious approach when dealing with matters such as these as you can see there are conflicting approaches. Seek legal advice before taking any action.

The July edition of “Peach Press” is now available for you to download.

Click the image below to download your copy.

The first edition of our monthly newsletter “Peach Press” is now available.

Click the image below to download your copy and stay up to date with the latest developments in Employment Law, HR and the world of Peach!

<img src="http://peachlaw collaboration software.co.uk/wp-content/uploads/Coftons_Seminar.png” alt=”Mergers-Seminar” />

Peach Law have been shortlisted as a finalist for the 2016 E3 Business Awards in the new business start up of the year category!

Managing Director Lindsey Bell says “we are delighted to have been shortlisted and recognised as innovative and most importantly meeting client needs”.

The winners will be announced at the Business Awards dinner on 3 June 2016.

In the recent case of Peninsula Business Services (“PBS”) v Donaldson it was held by the EAT that it was not discriminatory to discontinue childcare vouchers during maternity leave.

Women on maternity leave are entitled to non-pay benefits pursuant to the Maternity and Parental Leave Regulations 1999 (“the Regulations”). An employment tribunal held that following HMRC guidance that contractual non-cash benefits provided under a salary sacrifice scheme must continue to be provided during ordinary maternity leave, that it must be discriminatory for an employee to lose childcare vouchers during maternity.

The EAT allowed an appeal from (PBS) and held that no legislative basis had been found to support the HMRC guidance. The key question was: did the vouchers constitute remuneration? If they did, Regulation 9 of the Regulations did not require this to continue during maternity leave. Langstaff J held that the vouchers did represent part of salary since pay had been substituted with vouchers under a salary sacrifice scheme. On this basis they were to be regarded as remuneration and could be discontinued during maternity leave.

The Supreme Court has granted permission to Unison to appeal the Court of Appeal’s decision rejecting Unison’s judicial review of the employment tribunal fee regime online collaboration software.

Watch this space!

The Employment Appeal Tribunal has announced the result in Lock v British Gas.

Mr Lock was paid basic salary and results-based commission but only basic pay during leave.

An employment tribunal held that results-based commission must be included when calculating holiday pay and that it was possible to read words into the Working Time Regulations (1998) (“WTR”). British Gas appealed. A reference was made to the CJEU.

The Employment Appeals Tribunal dismissed the appeal stating that it is permissible – and indeed necessary – to imply words into the WTR to comply with EU law.

The right to paid leave is a pillar of EU social law from which there can be no derogation.

Mr Lock therefore succeeded in his argument that he is entitled to holiday pay which includes an element for the amount of commission he would normally receive when working.

This is likely only to apply to statutory holiday.

See the full judgment here

Peach hit the headlines today in the North West Business desk!

The European Court of Human rights considered whether the right to respect for private life and correspondence was breached if employers monitor employees’ personal communications at work.

They said it was not, subject to reasonableness/proportionality, in Barbulescu v Romania.

Mr Barbulescu was an engineer who used his business Yahoo Messenger account to send and receive personal messages with his fiancee and his brother, including messages about his health and sex life. This was in breach of his employment contract. His employer, discovering this accidentally, dismissed him. Mr Barbulescu argued that the Romanian courts should have excluded all evidence of his personal communications on the grounds it infringed his Convention rights to privacy.

They held that Article 8 (right to respect for private life and correspondence) was engaged, but that the Romanian courts were entitled to look at that evidence in deciding whether the dismissal was justified. The European Court was swayed by the fact that the Romanian court judgment did not reveal the precise content of the personal messages, but only the fact that they were personal messages. The Court recognised the need for employers to be able to verify that employees are completing professional tasks during working hours.

This judgment is a good one for businesses. However, the key to be able to dismiss fairly is for it to be made clear in either the employees’ contract or staff handbook what is permitted with work devices and what is not. If this is unclear or other employees have been allowed to use it in the way that the employer is seeking to dismiss a particular employee for then a dismissal on these grounds may not be fair.

Please call us for further advice on 0161 478 3800.

The Exclusivity Terms in Zero Hour Contracts (Redress) Regulations 2015 came into force today and provide that:-

•any dismissal of a zero hour contract employee is automatically unfair, if the principal reason is that s/he breached a contractual clause prohibiting him/her from working for another employer

•no qualifying period is required to bring such an unfair dismissal claim; and,

•it is also unlawful to submit a zero hour worker to detriments if they work for another employer in breach of a clause prohibiting them from doing so.

Need help? Please give us a call.

In the recent case of Greenfield v The Care Bureau the question was asked that if a part-time worker increases their hours, is the employer obliged to recalculate their entitlement to annual leave retrospectively, even taking into account annual leave already accrued and taken?

The answer was no according to the ECJ.

Ms Greenfield’s contract provided that working hours and days varied from week to week. She took 7 days’ paid leave whilst she was contracted to work 1 day a week (equivalent of 7 weeks’ leave). Shortly after Ms Greenfield began working a pattern of 12 days on and 2 days off as alternate weekends. On leaving her employment she claimed that she had a week of accrued but untaken leave but the Care Bureau informed her that she had exhausted her holiday entitlement.

Ms Greenfield brought a tribunal claim arguing that national law, read in conjunction with EU law, requires that leave already accrued and taken should be retrospectively recalculated following changes in working patterns.

The ECJ held that in the event of increased working hours performed by an employee, Member Stares are not obliged to provide that the entitlement to paid annual leave already accrued, must be recalculated retrospectively according to that worker’s new work pattern. However, a new calculation must be performed for the period during which working time increased.

When a full-time employee reduces their hours to part-time hours the employer cannot reduce the right to annual leave already accumulated during the full-time employment and the same should be said for an employee that’s worked part-time but then later works full-time. It is necessary for an employer to distinguish between different periods of different working patterns and work out the annual leave accumulated separately for each period. The same conclusion should be drawn whether this is during employment or once terminated.

Any queries, please give us a call.

The Department for Business, Innovation and Skills has produced a guide for employers on zero-hour contracts.

It explains to employers how zero-hour contracts work, gives guidance on best practice and alternatives to zero-hour contracts and explains the difference between appropriate and inappropriate use of such a contract.

Get your guide here

You are brave! A new boutique Employment Law advisory company celebrates its first year in business.

Peach Law Ltd – Law and HR, done differently

“You are brave!” This is what I kept hearing from ex-colleagues and friends when I first started talking about setting up my own business. A qualified solicitor/Partner with over 14 years of experience, latterly heading up an employment department of a national firm, I had the desire to provide clients with more flexible, cost effective, specialist employment expertise without the call centre approach.

Well, thanks to our great Clients, Colleagues, Advisers, Family and Friends, we have successfully completed our first year in business.

We began operations in Stockport and our small company has gone from strength to strength with an increasing number of clients, cases and high success rates.
Looking back at our first year we can be proud of our achievements:

• We secured our first clients in October 2014
• Relocated the business to Landmark House, Stockport in March 2015
• Were privileged to be the BBC’s “go to” for expert commentary on employment law on the North West Tonight Programme in April 2015 and are on their Employment Law Expert List.
• We have taken on two new members of the team
• And last but nor least, we achieved our financial targets!

Of course, 2015 has also been a roller-coaster of emotions and challenges as expected. We are still working on developing great systems, adding to our service offering and developing our marketing strategy but, we are getting there.
We have built a lot of great relationships already, and we are looking forward to strengthening them even further.

Our approach is simple. We provide clients with tailored Employment Law, HR and Mediation services delivered by professional Legal Practitioners without the need to engage with expensive Law firms. Our clients have cost certainty which is a must for all businesses!

If Peach Law Ltd looks like a good fit for your organisation we would love to talk.

Call us today: 0161 478 3800 or Email: hello@peachlaw.co.uk

Follow us: @peachlawuk

Thanks for helping to make Peach Law Ltd a success!

Lindsey Bell
Director

The following changes are taking place on 1 October 2015:-

•minimum wage changes (adult rate increases from £6.50 to £6 team collaboration software.70)

•the right for Sikhs to wear turbans (instead of safety helmets – currently only allowed on building sites) will be expanded to all workplaces, subject to various exceptions

•tribunals lose power to make wider recommendations in discrimination cases – now they can only make recommendations relating to the individual complainant

•self-employed people become exempt from health & safety laws if they have no employees, subject to various exceptions

Come and join us in Cheadle Hulme!

This is an exciting opportunity to join a growing business, have exposure to a wide variety of duties and receive training in areas such as social media.

We are recruiting for a part-time office administrator/PA role (approx 20 -25 hours per week – flexible on times).

Duties would include: word processing, overseeing the day-to-day functions concerning the office, audio and copy typing, dealing with telephone and email enquiries, creating and maintaining filing systems, organising travel for staff, updating social media accounts, using a variety of software packages, such as Microsoft Word, Outlook, Powerpoint, Excel, Access, etc., to produce correspondence and documents and to maintain presentations, records, spreadsheets and databases, liaising and negotiating with external suppliers and arranging in-house and external events.

Interested? Drop us a line at hello@peachlaw.co.uk

Closing date for applications is 25 September 2015.

(sorry – no recruiters)

ACAS has published new guides for recruiting new staff and inductions.

These guides are useful as a starting point.

If you require further guidance or require some hands on HR please call Peach.

recruiting staff guide
staff induction guide

The Court of Appeal has dismissed the challenge brought by Unison against the introduction of fees in the employment tribunals and the EAT.

Unison unsuccessfully argued that fees prevented claimants from having access to justice, that the regime was indirectly discriminatory and that the Lord Chancellor had failed to satisfy the public sector equality duty. In particular:

•Unison’s appeal failed due to lack of evidence as to the impact of fees on individual claimants. Although the Court of Appeal was struck by the dramatic decline in the volume of claims being brought in the tribunal, it agreed with the High Court that the figures on their own were insufficient to establish that claimants were unable to pay the fees and therefore were unable to have effective access to justice find out this here.
•The Court of Appeal concluded that it was objectively justifiable to have a two-tier fees system. Although a larger number of women then men may be obliged to pay the higher rate fees which apply to discrimination claims, this reflected the greater demand such claims placed on tribunal resources.

Unison has sought permission to appeal to the Supreme Court. In the meantime, a formal review on the impact of tribunal fees by the Ministry of Justice is underway with completion of the review expected later in the year.

Acas has published three new guides on equality:-

•Equality and Discrimination: Understand the basics
•Prevent Discrimination: Support equality
•Discrimination: What to do if it happens

The guides set out best practice for businesses.

click here for your copies!

Does the principle of “Equal treatment” under the Temporary Agency Workers Directive (“the Directive”) require that an agency worker in a temporary job be given a right to apply for that job, and/or get preference ahead of an employer’s permanent employees?

No, held the EAT in Coles v Ministry of Defence.

The Claimant was an agency worker for the MoD. After redeploying redundant permanent employees, the MoD filled the Claimant’s role, without offering him an interview. The Claimant had been informed of the vacancy, as required by the Agency Workers Regulations 2010. The Claimant stated the failure to allow him to apply for the post, and/or to give him preference ahead of permanent employees breached his rights under the Directive.

The EAT held that for agency workers, “the principle of equal treatment is confined to working time and pay”.

The EAT refused to make a reference to the ECJ on whether the Directive required employers to provide opportunities for agency workers to find alternative employment beyond giving them information on vacancies.

It has been reported that David Cameron is seeking an opt-out on some of EU employment law as part of the referendum negotiations. It is suggested that he will seek to restore the opt out from the Working Time Directive and the Temporary Workers Directive (covering agency workers).

Click here for article

The government has published the draft Trade Union Bill and various consultation documents for reforms to the strike balloting laws my latest blog post.

The main proposals are:-
•industrial action will require a 50% turnout
•40% of all eligible voters must vote in favour of industrial action which affects important public services
•the ban on using agency staff to cover striking workers will be lifted
•there will be a 4 month limit on a strike mandate, after which another ballot is required (this won’t apply to ballots taking place before the Act comes into force, assuming it is passed)
•there will be more specific requirements for the wording of the ballot paper
•banning automatic opt-ins to political donations from trade union subscription fees
•the amount of notice of a strike to be given to an employer will be increased from 7 to 14 days.

The consultation closes on 9 September 2015

Trade Union Bill
Hiring Agency Staff Consultation

Acas has issued a guide for small employers which covers the basics of employment law on staff pay.

According to Acas, the new guide can “help small and medium sized businesses stay on the right side of the law and ensure pay issues are handled correctly.”

It covers matters such as how to pay new staff, different types of pay systems, wage slips, what to do during staff absences as well as wage deductions and overpayments. It breaks down the most common employment issues into a series of practical steps that a manager or supervisor can access at any time.

Download your copy here!

In a case before the European Court of Justice (ECJ), the Advocate General (AG) has given his opinion and set out that, “working time” under the Working Time Directive will cover the time travelling from home to a first assignment and from the last assignment back home for those workers who are not assigned to a fixed place of work.

In this case (reference to the ECJ came from Spain) a group of workers drove to customers throughout Spain installing security systems. The AG’s opinion was that this time satisfied the three criteria of time where the worker is at work, at the employer’s disposal and carrying out his activity or duties, and should therefore be regarded as working time rather than a rest break.

This is only an opinion of the AG and not binding on the ECJ but the ECJ do usually follow the opinion of the AG. Whether or not the ECJ follows the AG’s opinion, its decision should provide clarity in defining working time for mobile workers with no fixed workplace or “base”.

We will keep you updated!

(Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco
Integrated Security SL and another C-266/14.)

Should employers include voluntary overtime when calculating an employee’s holiday pay?

In a recent Court of Appeal case in Northern Ireland (Patterson v Castlereagh Borough Council), the Court held yes!

The Tribunal that first heard the case held that overtime which the employer was not obliged to provide and the employee is not obliged to perform should not be included in holiday pay calculations, however on appeal the Court disagreed.

The Northern Ireland Court of Appeal held that the industrial tribunal’s determination in respect of voluntary overtime was erroneous but unhelpfully they did not provide any further guidelines. They stressed that this was a ‘question of fact’ for each tribunal to determine, based on the particular circumstances of each individual case.
This judgment opens the door to the inclusion of voluntary overtime, but employers still will not have sufficient clarity on its application.

Decisions from the Northern Ireland Court of Appeal are not legally binding on the courts and tribunals in England and Wales, however it is “persuasive” and employers should be aware of the potential ramifications of this most recent decision.

This will not be the last of the case law in this area – watch this space for further updates and/or follow us on twitter @peachlawuk

The government has announced the start of a review of employment tribunal fees and the fee remission scheme. The tribunal quarterly statistics for the period January to March 2015 have also been published and show a continuing decline in the number of tribunal claims being received and disposed of (see link below).

We don’t currently foresee that there will be much change where the fees are concerned.

<a href="https://www description.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-january-to-march-2015″>Tribunal quarterly stats report

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.

This was a housing repossession case brought by Shelter with intervention by the European Court of Human Rights (ECHR).

The legal question was – Is the proportionality test under sections 15 and 35(1)(b) of the Equality Act 2010 the same as the test under Article 8 of the European Convention on Human Rights?

No, held the Supreme Court in a unanimous decision dismissing the case (Akerman-Livingstone v Aster Communities Limited). Under section 35(1)(b) of the Equality Act eviction is unfavourable treatment for the purposes of section 15. Article 8 of the European Convention on Human Rights protects the right to respect for a person’s home.

The tenant had a disability. Shelter sought repossession of the tenant’s flat following eleven offers to rehouse him. His inability to move arose from the disability. The Supreme Court agreed with the Court of Appeal that the housing association had discharged its duty to accommodate under s.193(2) of the Housing Act 1996. However, it set out that under the Equality Act, no landlord is entitled to evict a disabled tenant because of something arising in consequence of disability unless he can show eviction to be a proportionate means of achieving a legitimate aim.

The Lords stated that the housing authority had gone out of its way to accommodate the tenant and needed possession to allow it to meet its obligations under the Housing Act. This would constitute a proportionate means of achieving a legitimate aim.

Was it a repudiatory breach of contract to forward an obscene and pornographic email at work?

Yes, held Bavo the High Court in Williams v Leeds United Football Club.

Mr Williams, a senior employee, brought a claim for wrongful dismissal . He had been dismissed, with notice, on grounds of redundancy. However, Within a week of being given notice, the Club summarily dismissed him Increase on grounds of gross misconduct. It had discovered that 5 years ago, he had forwarded an email described as “dirty Leeds” containing pornographic material to a junior female employee, and two others. The club refused to pay him the balance of his notice pay, approx £200,000.

The notice pay claim was dismissed. Although it was clear that the club had planned to stop paying his notice pay before notice was served (knowing it to be a breach of contract) and had investigators seeking evidence of misconduct, there was no evidence that they knew of the offensive email before redundancy notice was given. The sending of the email 5 1/2 years earlier was a breach of the duty of 2008 trust and confidence, particularly given his senior position. The nature of the images, the fact that it could amount to harassment of the female employee and the potential consequences to the club was sufficiently serious to amount to repudiatory conduct. The Club was therefore entitled to dismiss him without notice.