HR Breakfast Seminar Employment Law Update

Julie Fewtrell, HR Consultant

Thursday 3 October 2013

Topics

Overhaul of the tribunal system

Parental leave

Adoption leave

Flexible working

Flexible Parental Leave

Social media

Auto enrolment

Discrimination law overview and

reasonable adjustments

Interns

Common HR topics

Overhaul of the tribunal system

29 July 2013:

Introduction of tribunal fees

New calculation for compensatory award

Settlement agreements

Confidential discussions about agreed

termination of employment

April 2014:

Claimants need to notify ACAS first before

lodging tribunal claims.

Conciliation is offered.

If conciliation is unsuccessful within the set

period, can proceed to tribunal.

Tribunal fees

1. £160 issue fee, £230 hearing fee: more

straightforward claims, including

unlawful deductions from wages and

holiday pay

2. £230 issue fee, £950 hearing fee: more

complex claims, including unfair

dismissal, discrimination, whistleblowing

• Tribunal will have power to order

unsuccessful party to reimburse fee to

successful party

• Claimants whose earnings fall below a

certain threshold will pay reduced fees or

nothing at all. They need to apply for fee

remission.

New calculation for compensatory

award

• Capped at the lower of weekly pay x 52 or

£74,200

• Includes compensation for unfair dismissal

• Potentially significant for lower paid

workers

Settlement agreements

The new name for “compromise agreements”.

Final ACAS code states:

Offer no longer needs to be in writing (but

final agreement must, to be legally binding)

Adds requirement that employee must have

minimum 10 days to consider offer

Adds that employees should be allowed to

be accompanied at settlement meetings

(TU rep or work colleague). Not a legal

requirement but good practice.

Confidential discussions about

agreed termination of employment

Law changed to allow employers to

discuss with employees the possibility of

an agreed termination.

Risk of such discussions being used

against them in any later ET is removed.

However, care to be taken due to strict

parameters attached to discussion.

ACAS Code of Practice to guide

employers and employees.

Applies to ordinary unfair dismissal only.

Evidence of such discussions still

admissible if:

- breach of contract

- detrimental treatment due to whistleblowing

- unlawful discrimination

- victimisation

- automatic unfair dismissal

Can still be used in ordinary unfair

dismissal if tribunal considers anything

said or done was ‘improper’ or was

‘connected with improper behaviour’.

Case law will test concept of ‘improper

behaviour’.

Until then ACAS gives broad examples of

what this might cover:

- Victimisation

- Threats or physical assault

- Other criminal behaviour (e.g. fraud, perjury,

blackmail)

- Harassment, bullying and intimidation

- Undue pressure e.g. unreasonable time-frame to

respond

Parental Leave

Increased from 13 weeks to 18 weeks

during first five years of child’s life (or up to

age 18 if disabled child). 8 March 2013

From 2015, 18 weeks available up to the

child’s 18th birthday.

Remains unpaid, with same rules around

how many weeks can be taken per year,

notice to be given etc.

Adoption Leave

From 2015, surrogate parents will be

eligible for this.

Both will be able to attend two antenatal

appointments, unpaid time off

Flexible Working

Right to request to be extended to all

employees – Children and Families Bill

Implementation: spring 2014

Current procedure to be replaced by a

duty on employers to deal with requests in

a reasonable manner and within a

reasonable period of time

Right to refuse requests on business

grounds remains

Flexible Parental Leave

Timing: further consultation on administrative

and implementation arrangements took place

in first half of 2013, with reforms implemented

by 2015

Where both parents are working, and meet

qualifying conditions, they can opt into

Flexible Parental Leave (FPL) and share up

to 50 weeks leave and 37 weeks pay

FPL available to biological father or mother’s

partner, including same sex partners

Women will only have to take minimum of two

weeks maternity leave (or 4 weeks if factory

workers)

FPL only starts when mother decides to end

her maternity leave

Both parents can then be on leave at the

same time or take leave consecutively

Parents will also be able to intersperse

periods of work with periods of leave

FPL must be taken in minimum blocks of one

week

Employers not obliged to agree employees’

proposed FPL pattern. If agreement can’t be

reached, default position will be that paid

leave will be taken in one block on start date

chosen by employee

Statutory paternity leave and pay will

continue as separate rights for

fathers/partners and remain at 2 weeks

Additional paternity leave will be abolished

New right for fathers/partners to take unpaid

time off work to attend 2 antenatal

appointments with their partner. “Day one”

right with no qualifying conditions

Administrative arrangements will be “light

touch” – government says at “no point will the

respective employers of each parent need to

contact one another to discuss their

employees’ leave entitlements”

In addition, changes will be made to bring

adoption pay and leave rights into line with

those of maternity rights, i.e. leave will be a

“day one” right and pay will be 90% for weeks

1-6 etc.

Social Media

Problems that can arise:

Too much work time on social sites

Criticising employer or its products

Posting material that embarrasses employer

Using it to bully other employees

Using it to publicise things they disagree with

employer about, or spread dissent

Breaching confidentiality/giving trade secrets

Employer discovering misconduct as a

result of a posting, e.g. photos on holidays

when meant to be off sick

Ownership of contacts, content and Twitter

tags when employees leave – when used

for work purposes

What can you do?

Social Media or Acceptable Use Policy is a

must

This assists with any challenges at tribunal –

employer is clear about what is appropriate

and acceptable

Communicate policy to whole workforce

Brief staff to help them understand

implications of their actions

Enforce it consistently

Case: Taylor v Somerfield

• Breach of implied term of trust and

confidence

• Employee was dismissed after posting

video clip on YouTube of colleagues

fighting with plastic bags while at work

• Employer sought to argue the material

brought the business into disrepute

• Tribunal disagreed, finding there was no

clear association with the employer

• Video only viewed 8 times

• Scale of distribution is a relevant factor

Case – Preece v JD Wetherspoons plc.

• While on duty, a pub manager posted

inappropriate comments on her Facebook

page about two customers

• Breach of employer’s email and internet

policy

• Dismissed – gross misconduct

• Claimed unfair dismissal

• Believed comments only visible to a

closed group of friends and therefore

private. In fact, visible to all Facebook

friends.

• Tribunal found the dismissal to be fair

• Connection between claimant/employer

was clear from Facebook page

• Clear from posts that claimant and her

friends were discussing work and specific

customers of respondent

• Employer’s position strengthened by

thorough nature of its policies

Case – Gosden v Lifeline Project Ltd

• Drugs welfare worker expressed racist and

sexist views in a private email sent from

his home computer to the home of a

friend’s private email account

• His employer became aware of the email

and dismissed him

• Employment tribunal found dismissal to be

fair

• Clear that ET decision was particular to

this case and not to be considered binding

on other tribunals

• Gosden had close connection to

individuals with the characteristics

disparaged in the email

Case – Flexman v BG Group PLC

• HR Executive uploaded his CV to LinkedIn

which contained confidential information

• Employer instructed him to remove

confidential information and then commenced

disciplinary proceedings

• Flexman complained there was unreasonable

delay in process and raised grievance

• Flexman resigned and brought claim of

constructive dismissal

• ET held he was constructively dismissed

• He had resigned because he had lost faith in

employer’s ability to deal fairly with

disciplinary and grievance

• Case did not provide any guidance on what

information employees are entitled to include

on their LinkedIn account

Case – Benning v British Airways Plc.

• Employee was accused of offensive

comments and footage on YouTube

• During disciplinary investigation, employee

claimed it was in fact his brother who had

posted the material and produced a letter

to that effect

• Employee was dismissed and claimed

unfair dismissal

• Tribunal found that on the evidence, it

would have been difficult for the employer

to conclude that the employee was not

responsible for the posts

• It was considered relevant that employee

did not give that explanation when first

questioned about the conduct

Points to consider when deciding

what action is appropriate

Nature of the offence

Nature and status of work carried out by

employee

Extent to which role requires trust to be

placed in employee

Actual/potential readership

Starting point likely to be that material on

internet is in public domain unless employee

can show it is genuinely private in nature

Case – Whitmar Publications v

Gamage

Case involved ownership of LinkedIn contacts.

Outcomes:

• Where employers require employees to

maintain LinkedIn pages on their behalf

during employment, courts are likely to find

contacts belong to employer.

• Injunctions may be granted where former

employees try to misuse such contacts post-

termination.

• Unfortunately, this case does not answer

what happens to employees’ personal

LinkedIn accounts where they are not

required by the employer to maintain one but

the accounts connect to their employer’s

contacts.

• For some protection, employers can use

post-termination restrictions in contract of

employment and robust social media policies.

“Bring-Your-Own-Device”

BYOD

Issues related to safeguarding personal and

company data, as more staff work on their

own smart phones and tablets:

Control: employer does not own device

Security risks

DPA compliance

IT licences may not allow for use on such

devices

Support and maintenance

Information Commissioner has issued

guidance on BYOD issues

How to minimise risks

Clarify rules, including consequences of non-

compliance

If employer reimburses costs, be clear about

who owns device and its contents, who is

responsible for what costs

Remind staff about confidentiality

Explain security risks and safeguarding

If possible, prohibit downloading of data to

device

Explain how, when and why monitoring will

take place

Have procedure for reporting loss or theft of a

device

Require employees to hand over device and

any password for inspection on request and

on termination of employment, so employer

can wipe it of any company information.

Employee should give explicit consent for

this.

Auto-enrolment

From the Regulator – key lessons learnt:

Start planning early (volume “spikes”)

Know your staging date

Choose and agree scheme provider early

Choose and agree software supplier early

Test processes and software

Communication

Take care:

Staging date linked to number of PAYE staff

as of April 2012 – check your date

Will your payroll supplier provide any help on

who is eligible month-by-month?

If you do not have a pension provider now,

expect pressure on providers during 2014

Regulator can help but volume of work

expected to be very heavy in 2014

Planning Ahead

Regulator website has great tool for this:

Lists out the steps you need to work

through

Each step takes you to more detailed

information if you need it

Provides guidance on timeline for each

step

Steps

• Know your staging date

• Nominate a contact

• Develop a plan

• Check processes and software

• Assess your workforce

• Review pension arrangements

• Communicate to workers

• Enrol eligible jobholders

• Registration

• Keep records

• Ongoing responsibilities

Practicalities:

Provide Regulator with a nominated contact

at your organisation now so that they can

email this person with key, relevant

information, for your organisation

Regulator writes to organisations 18 months

before their staging date – subsequently

writes 12, 6 and 1 month before, informing

you of what you should have done by these

deadlines

Important decision

Which definition of pay will you use?

“Qualifying earnings” basis is likely to be

lowest cost option but may be more onerous

to administer

This involves three tiers of workers and

jobholders, with different rights

Limits pensionable pay to that between

£5,668 and £41,450, rather than from zero

and up to full pay amount

Regulator “news”

Concerns about volume of employers

reaching staging date in March-May 2014

Recent DWP consultation on simplification

of auto enrolment

Has led to some changes which will be

helpful to employers

Ironing out a few wrinkles

Regulator has issued simplified rules (end

September)

Discrimination law overview

Many provisions of Enterprise and Regulatory

Reform Act which directly impact on Equality

Act are not yet in force.

Likely that many, e.g. relating to compulsory

equal pay audits and caste discrimination, will

take some time, even years, to come into

law.

Repeal of third party harassment process, 1

October 2013

Adjustments to absence policy for

disabled employee

EAT: HMRC v Whiteley

Asthma sufferer. Conclusions:

Not all disability related absence must always

be disregarded for purposes of applying

sickness policy.

Employer may be able to take action where

absences are in excess of what might be

considered average for someone with the

same disability.

This case highlights how crucial it will always

be to get thorough, expert medical advice.

Reasonable adjustments and

alternative employment

For clarity:

Equality Act 2010 places a duty on the

employer to make reasonable adjustments in

relation to a disabled person where:

- a provision, criteria or practice applied by

employer, or

- a physical feature of employer’s premises,

or

- a failure to provide an auxiliary aid......

....puts a disabled person at a substantial

disadvantage in comparison with persons not

disabled.

An example given in the EHRC’s Code of

Practice is transferring a disabled person to

fill an existing vacancy.

Issues around whether or not requiring the

person to undertake a competitive interview

process is fair in these circumstances or not.

Cases: Archibald v Fife Council

Wade v Sheffield Hallam Uni

Conclusions of EAT:

Not always reasonable adjustment to

place a disabled person into a vacant

position.

Depends on circumstances of each case.

Where there are good reasons for the

employer to believe the employee does

not have or may not have essential skills

for alternative role, legitimate for employer

to test this through appropriate process

such as competitive interview.

But... if employee satisfies essential

criteria of vacant position, failure to

appoint them (even if there are ‘better’

candidates) likely to amount to failure of

duty to make reasonable adjustments.

Interns

Case – Keri Hudson v TPG Web

Publishing

• Employer overstepped the mark. Should

have been paying NMW at the very least.

• If payment made, this helps to ensure

certainty. If unpaid, ensure:

Intern has little or no obligations towards

business, i.e. can come and go as they

please

Organisation not reliant on work of intern

Arrangement is for finite (and short) period

There is no indication of future

employment

Most widely-raised HR topics

Managing long term sickness absence

Disability questions within the recruitment

process

Mental health issues

Poor performance being left for too long

Restructuring due to economic

climate/requirement to be more

“commercial”

Employment Tribunal Statistics

2012/2013 figures

• 3% increase in number of ET claims from

186,331 in 11/12 to 191,541 in 12/13.

• Figure expected to decrease in next year,

with introduction of tribunal fees.

• Working Time Regulations claims: 30% of

total claims in 2012/13.

• Unfair dismissal accounted for 15% of all

claims in 2012/13 (increase of almost 6% on

previous year).

• Sex discrimination claims rose by 74%,

despite overall fall in such claims of 30%

since 07/08.

• Claims for disability/race/age discrimination,

equal pay, and detrimental treatment/unfair

dismissal connected with pregnancy – fell.

• Claims relating to Part Time Workers

Regulations, religion or belief and sexual

orientation discrimination - rose

• Number of cases received by EAT rose by

just under 6%.

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Contact details

Julie Fewtrell

HR Consultant

www.juliefewtrell.com

julie@juliefewtrell.com

020 7935 7855

07977 505995

Providing:

• Employee relations advice

• Training on HR matters: e.g. Performance

Management, Appraisal and Supervision,

Recruitment and Selection, Using HR

Policies

• 1-to-1 coaching and team days – using

Myers Briggs where appropriate

• Facilitation of staff and trustee away days

• Governance advice: developing board

appraisal, facilitating strategy days