What do employers need to know and do this May?

We set out below the key issues for employers to be aware of in light of recent employment law developments.

With a Conservative Government what can employers now expect?

As we await the first Queen’s speech for the new Government on 27 May, the most immediate reform that employers may now expect to see coming out of the Conservative manifesto, other than those already in the pipeline on zero hours contracts and closing the gender pay gap, will be to strike laws. New Business Secretary, Sajid Javid, has already publicly stated this will be a “priority” (see here). Other significant proposals which will impact on employment law include a referendum on EU membership, devolution and a UK Bill of Rights. For employees’ the Conservatives have pledged to increase free childcare for three and four year olds to 30 hours a week (see here). There are already plans for a new tax free childcare scheme to be introduced for employees, expected this Autumn (although employees who are already members of an employer’s childcare voucher scheme can choose to stay in that scheme).

Holiday pay – uncertainty continues

We recently reported on an Employment Tribunal (“ET”) decision in the Lock case (holiday pay and commission) which held that our domestic legislation can be interpreted to require commission payments to be included in holiday pay. That decision is now being appealed to the Employment Appeal Tribunal (“EAT”). See here. Please contact us for specific advice on what steps you should be taking with regard to your holiday pay practices.

Collective redundancies – certainty at last on the “at one establishment” approach

The European Court of Justice has confirmed in the “Woolworths” case that the European collective redundancy rules which have been implemented into UK law require an employer to collectively consult with appropriate representatives where 20 or more redundancies are proposed at an establishment (and not across the whole undertaking). This brings to an end a long period of uncertainty. However, employers must still take care in determining what is an “establishment” bearing in mind European case law on this point. (See here).

Criminal record checks – new guidance on recruiting safely and fairly

NACRO, in conjunction with the CIPD and DBS, has published a practical guide for employers on recruiting safely and fairly including helpful guidance on when criminal record checks should be carried out and what to do if a criminal record or allegation is revealed. A link to the guide is here.

Mental health in the workplace

This week has been mental health awareness week (see here), this year with a focus on mindfulness. Mental health tends to be a “hidden” issue in the workplace. ACAS offers advice and guidance (see here), as do a number of other organisations.
If you would like to discuss how to tackle this issue in the workplace further, please do contact your usual OC Contact.

The EAT has also recently held that an ET did not have proper grounds to strike out a claim for abuse of process where it was brought six years out of time. The claimant had medical evidence that she suffered from mental health issues and had not been well enough to conduct or participate in proceedings in the six years before she lodged her claim. The EAT held that the ET should have considered whether her claim should continue or not under alternative rules which would have allowed her to make representations as to why she had been unable to lodge it earlier. However, the EAT did not give the green light for the claimant’s claim to now proceed – this would depend on a further determination by the ET in light of her medical evidence. (Higgins v Home Office and another)

Do your managers make decisions in reliance on others’ opinions?

The Court of Appeal (“CA”) has handed down a helpful decision that a discrimination claim against an employer turned on the motivation of the decision maker alone. However, care should still be taken to ensure that any supporting information or opinions used in making that decision are not themselves tainted by discrimination. Such information and opinions may still give ammunition for a claimant to bring a discrimination claim against the individuals giving such information and opinions personally, together with a claim of vicarious liability against the employer (although the claimant failed to re-frame her case to do so here). Given that such individuals are likely to hold senior positions, any direct claims may not only be costly but potentially embarrassing to the employer and individual employees concerned. Employers would be sensible to remind any decision-makers to be conscious of potential bias issues when relying on third party information and to challenge that information as appropriate (CLFIS v Dr Mary Reynolds (CA)).

Do your managers know how to recognize and deal appropriately with allegations of harassment?

With compensation awarded in excess of £19,000 a recent case has shown the dangers of a manager not dealing robustly with allegations of sexual harassment. It also highlights the vulnerability of workers, such as those on zero hours contracts, who fear adverse repercussions of raising such issues and which they can ill afford. See here.

Do your disciplinary processes ensure that warnings are only given in good faith?

Where a dismissal (or higher disciplinary sanction) is considered appropriate but in reliance on a previous live disciplinary warning, employers should so far as practical ensure that they are comfortable that the previous warning given was done so in good faith and that the employee was given the right to appeal. Any allegations made by the employee of bad faith should be investigated. Here, the employee challenged a decision to dismiss him for misconduct arguing that a prior warning relied on by the employer to justify that dismissal had been given to him by a manager who had in fact sanctioned the misconduct the warning was in respect of. That manager had also indicated that any appeal might have adverse repercussions. The employee would not have been dismissed had he not been subject to the prior warning. (Way v Spectrum Property Care, CA)

Should a disciplinary hearing be suspended where an employee raises a grievance?

The EAT has held that an employer does not automatically have to suspend existing disciplinary proceedings simply because an employee has raised a grievance. Whether or not it is appropriate to suspend the disciplinary hearing or run any grievance concurrently with it, will depend on the facts of the case including the specific grievances raised and how they relate to the disciplinary proceedings in question. (Jinadu v Docklands Buses)

Attendance by shop steward and health and safety representative at union meetings was working time

The EAT has held that time spent by a health and safety representative and a union representative attending union meetings between shifts may be “working time” for the purposes of the Working Time Regulations 1998. This impacted on the employees’ right to a 11 hour daily rest break between shifts. However, this case is quite narrow on its facts regarding the status of the individuals’ and the purpose of the meeting they were attending. Each case will need to be looked at on its facts in determining whether a meeting an individual is attending is “working time”. (Edwards and others v Encirc Ltd EAT)