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Autumn Statement – Statutory Maternity & Sick Pay Rates increase

There were several announcement made by the Chancellor, Phillip Hammond, in the Autumn Statement that will impact employment law. Incidentally this might be the last Autumn Statement, as one of the announcements was to abolish them!

In April 2017, the rates employers have to pay will go up for the first time since April 2015. The rates are linked to the Consumer Price Index (CPI) and as that did not rise last year the rates were frozen for 2016.

However a 1% rise in the CPI this year means the rates will also rise by the same amount. The new rates, which are expected to come into force on 6 April 2017 are as follows:

Statutory Maternity Pay (and other family friendly payments including adoption pay, shared parental pay and paternity pay): £140.98 up from £139.58 in 2015

Statutory Sick Pay: £89.35 up from £88.45 in 2015

Read more on SMP and other family friendly payments.

Posted: Dec 2, 2016 by admin in E Learning

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Autumn Statment – National Living Wage – Lower than expected increase

Another thing on the rise is the National Living Wage. As you will probably already know any employee over the age of 25 is entitled to the National Living Wage, which has risen by 30p to £7.50. This is 14p below the predicted 2017 rate of £7.64, meaning the average worker will be worse off by £291.20 next year.

Furthermore, the forecasted living wage growth has been revised from £9.16 by 2020 to £8.61. This is due to a myriad of reasons including Brexit and Hammond’s predecessor, George Osbourne, failing to meet deficit targets. There was also considerable pressure on Hammond from big business to not raise the Living Wage rate at all as many businesses have claimed they could not afford the rise, or would put prices up.

Posted: Dec 2, 2016 by admin in E Learning

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Autumn statement – Salary Sacrifice scrapped

One expected change made in the statement was the reduction of benefits allowed in salary sacrifice schemes. Salary sacrifice schemes allow an employer to take the cost of a work place benefit (such as a phone, emission friendly car, childcare, healthcare, or pension contributions) to be taken out of the employee’s salary.

This means the employee effectively pays for the benefit, which they would have probably needed anyway, out of their gross pay rather than net.

Previously we have covered cases about salary sacrifice but they have been scrapped (apart from Government approved schemes such as childcare) in a bid to reduce what the Government see as tax avoidance. Any employer who currently uses salary sacrifice schemes should get in touch with their providers immediately.

Posted: Dec 2, 2016 by admin in E Learning

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Autumn Statement – Employee Shareholder Status tax exemption stopped

Introduced by the Coalition in 2012, Employee Shareholder Status allowed companies to make highly skilled employees – or any employee – a shareholder.

For at least £2,000 worth of shares, which were both income tax and capital gains tax exempt, the employee would give up some employment rights, including unfair dismissal rights, the right to redundancy pay, the right to make flexible working requests and the right for time off to train.

The move was seen as a way of retaining high skill employees as the tax status of the shares together with a feeling of responsibility and status of being a shareholder would encourage the employee to stay.

However, the government believes the system was being abused and many employees were being made shareholders in order to avoid tax. To combat this, from 1 December 2016, any employee who takes shareholder status will not be able to benefit from the income tax and capital gains tax exemption.

Any employee who received advice on a shareholder agreement before 23rdNovember had until 1st of December to agree to it or they too will lose the tax free exemption status.

Posted: Dec 2, 2016 by admin in Redundancy, Settlement Agreements, Unfair Dismissal

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Right to work in UK case – Checklist for fair dismissals

As stated earlier, last week we looked at a case concerning rest breaks against Abellio London Ltd. This week there is an ET decision involving the same employer, however, this time they won their case.

In Baker v Abellio London Ltd, Mr Baker was a Jamaican born UK resident employed by Abellio. During immigration status checks Abellio asked Mr Baker to provide proof of right to work in the UK.

Mr Baker’s Jamaican passport had expired and the employer lent him £350 to cover the cost of renewing it and getting an endorsement to prove he had the right to work in the UK. The employee failed to obtain the endorsement and was dismissed for failing to provide proof of his right to work in the UK.

The ET held the dismissal was fair because they had:

1. Properly investigated his immigration status

2. Explained verbally, and, in writing to him what evidence he had to produce

3. Warned him of the risk of dismissal should he fail to provide evidence

4. Provided him with a loan to cover the costs of obtaining evidence

5. Given him opportunities to obtain proof

6. Allowed him to appeal against the decision to dismiss

Whilst this is only an ET decision it strengthens the view held in several pieces of case law regarding immigration.

Posted: Dec 2, 2016 by admin in Employment Tribunal, Unfair Dismissal

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Gig economy – Uber and Citisafe

The gig economy has been an issue we have been covering for most of the year. The recent Uber decision has highlighted that the judiciary will look at each case of alleged self-employment with a degree of scepticism and the government have echoed a similar sentiment.

The latest update on the gig economy is that Uber is now facing several hundred fresh claims from drivers who believe they are owed both holiday and unpaid wages. On the other hand Uber has pledged to appeal the decision, however, having read the judgment – which is highly critical of Uber – it would seem unlikely this will be successful.

In other gig economy news, courier firm, CitySprint, become the latest company with ‘self-employed’ drivers to face a legal dispute about whether their drivers are actually workers. As the Uber judgment was only a first instance case (Employment Tribunal and not an EAT or Court of Appeal case) its decision is not binding to other cases. However, it would seem likely that CitySprint drivers will get a similar judgment as are these drivers genuinely self-employed or is it a ruse to avoid liability?

Posted: Dec 2, 2016 by admin in Employment Tribunal

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Lighter side of the news – Disabled teacher awarded £180k after being sacked for showing 18 rated horror film to class!!!!!!

To round off this month’s newsletter we bring you the latest piece of outlandish employment law. This month’s case is a seasonal Halloween blunder and concerns a Mr Grosset, who has won his three year disability discrimination case against York Council following his dismissal as Head of English from the Joseph Rowntree School.

Mr Grosset suffered from Cystic Fibrosis and was also suffering from stress due to long hours and other conditions at the school. In an error of judgment he showed an 18 rated horror film at the end of term to a class of 16 year olds. Mr Grosset was dismissed for gross misconduct shortly after.

He claimed the lack of reasonable adjustments for his condition as well as his stressful workload meant the school had discriminated against him and not treated this as mitigating circumstances when deciding to dismiss.

The ET agreed and awarded Mr Grosset £180,000, (there is no cap for discrimination claims) potentially rising to £500,000 when loss of final salary pension is factored in. At appeal the EAT upheld the decision stating York Council had seriously failed its disabled employee by not making allowances for a serious condition. At face value this case seems absurd but it does serve as a reminder that discrimination cases can be very costly if the employer is held liable.

Posted: Dec 2, 2016 by admin in Employment Tribunal, Unfair Dismissal

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Grange v Abellio London Limited – Does an employee need to ask for a rest break before they can begin a claim for being refused rest breaks?

Good morning , welcome back to our weekly Case Law Update. Last week we looked at the role decision matrixes in disciplinary procedures.  This week we will be looking at working time and rest breaks. A rather topical issue given that Sainsbury’s, a supermarket chain that is open on Christmas Eve and Boxing Day, has recently released a Christmas advert about how the best gift you can give your family is quality time with them. Oh the irony!

Working time in the UK is governed by the Working Time Regulations 1998, which itself is an implementation of the Working Time Directive. The Regulations apply to all workers (not just employees) and state, among other things, that:

- No working week should exceed 48 hours (unless the employee has opted out)

- Employees have the right to 28 days paid annual leave (including Bank Holidays)

- Employees have the right to a minimum rest break of 20 minutes during any shift that exceeds 6 hours

This week’s case will be focusing on the latter of these three points and asks:

Does an employee need to ask for a rest break before they can begin a claim for being refused rest breaks?

Mr Grange, the Claimant, was initially employed by Abellio London, the Respondent, as a bus driver. The Claimant worked an 8 ½ hour shift, being paid for 8 hours and taking 30 minutes as an unpaid lunch break. The Claimant was later promoted to Roadside Relief Controller, a role that required him to monitor, adjust and regulate bus services to accommodate road conditions and traffic etc.

In the Claimant’s previous role he had a set shift pattern which meant he had no difficulty taking his 30 minute rest break. However, in his Relief Controller role, the Claimant was regularly unable to take his rest break.

The Respondent wrote to the Claimant and confirmed that his shift had been shortened from 8 ½ hours to 8. The idea being that the Claimant would forgo his break in order to leave earlier. After some time the Claimant lodged a grievance stating that he had been refused a rest break. However, prior to raising the grievance, the Claimant had never requested a break.

The Respondent refused the Claimant’s grievance and the Claimant brought a claim before the Tribunal. The ET rejected the claim. It held, following the decision in a prior case, that as the Claimant had not requested a break, the Respondent had not breached his right to a break under the Working Time Regulations because they had not refused a request for a rest break.

The Claimant appealed and the EAT allowed the appeal. It held that the Respondent’s instruction to work an 8 hour shift without a break could be viewed as a refusal without a specific request being made.

The take away point:

No, if an employee has been told that there will be no rest break during a shift (that lasts more than 6 hours), then they do not need to be refused a request to take a break before they can begin litigation.

This case goes against the decision of Miles v Linkage Community Trust, the previous case the ET relied on, and means employers can now potentially refuse rest breaks by proxy, or by accident, if the employee fails to request a break.

For more cases on working time click here.

Posted: Nov 25, 2016 by admin in Employment Tribunal

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DWP v Mughal – Can a disciplinary sanction be outside the range of reasonable responses if an employer has chosen the sanction based on a decision making matrix?

Last week we looked at disability discrimination and whether a sick note from a GP automatically qualified you disabled for the purposes of the Equality Act 2010. This week we will be looking at reasonable disciplinary sanctions and mitigating circumstances in relation to unfair dismissal claims. The case also concerns data protection.

When an employer dismisses an employee, and, the employee begins an unfair dismissal claim, the employee often claims that dismissal did not fall in the range of reasonable responses as per s.98(4) of the Employment Rights Act 1996. The key principals of this test are:

-          The ET must not substitute its own views for that of the Respondent

-          The conduct and its response must be considered by the standards of a hypothetical reasonable employer

-          A decision to dismiss can be unreasonable for other reasons than the decision being perverse, which has its own test.

Therefore, the question this week is:

Can a disciplinary sanction be outside the range of reasonable responses if an employer has chosen the sanction based on a decision making matrix?

Ms Mughal, the Claimant, was a Customer Service Officer at a Jobcentre Plus, for the Department of Work and Pensions, the Respondent. The Respondent is a large Government department that holds personal information on large portions of the general public.

As such, the Respondent has policies in place for handling personal data and also employee computer use. This includes not checking the personal information of friends, family, celebrities or any other customer of the Respondent without express authorisation. The Respondent’s handbook stated a breach of this policy was serious and could result in dismissal for gross misconduct.

The Respondent also had a decision matrix that would help decision makers enforce the correct disciplinary sanctions to employees who breached its policy. This included dismissal for gross misconduct for any employee who browsed confidential data of others for personal gain or without authorisation. Mitigating circumstances included scenarios where duress or fear of violence were present.

Furthermore, whenever an employee accessed confidential data a warning flashed on their computer to warn them that what they were viewing is confidential and disciplinary action could result from looking at the data without reason.

Prior to her dismissal the Claimant had an unblemished disciplinary record in over 15 years of service. She also had a number of personal issues including stress, depression and financial problems, this resulted in her renting out a bedroom to a private tenant. The tenant failed to pay his rent on time which exacerbated the Claimant’s financial problems.

At work, the Claimant accessed her tenant’s records and discovered he was in receipt of housing benefit. She then called the housing benefit office and, using the tenant’s confidential data, posed as him in order to confirm his benefits had been paid.

Following this she then sent an email to the housing benefit office stating she was the tenant’s landlady. She referenced numerous pieces of her tenant’s data and falsely claimed the tenant was being investigated by the Jobcentre for fraud. When she was finished the Claimant (allegedly) immediately went to her line manager and confessed to her sins.

The Claimant’s tenant complained to the Respondent about the Claimant accessing his data and the Claimant was investigated, but not suspended, by the Respondent. During the investigation the Claimant admitted to the breach and stated that she was under financial pressure.  A disciplinary was held and the Claimant was dismissed.

The Claimant’s appeal was dismissed and she commenced the litigation. The ET considered whether the decision to dismiss fell within the band of reasonable responses. The Judge held that whilst the Claimant had knowingly committed acts of gross misconduct there were several mitigating circumstances, including her length of service, clean disciplinary record, personal issues and her immediate confession of wrongdoing and subsequent apology.

The ET held that the Respondent’s decision matrix was too rigid and that the Claimant’s mitigating circumstances meant the decision to dismiss was outside the band of reasonable responses and thus unfair.

The Respondent appealed citing the fact the Claimant did have personal gain, the rent money, at mind when accessing the information. Moreover, neither the Claimant, nor the Respondent’s witnesses, were cross examined about her immediate admission of misconduct after accessing the data, making it impossible to determine whether the event took place. The EAT allowed the appeal agreeing with the Respondent.

The takeaway point:

In this case no, a sanction from a decision matrix was not an unreasonable response because the ET had wrongly interpreted the meaning of personal gain and also not established the events. If these two points had been done correctly the decision may well have been fair because there would have been a large amount of mitigating circumstances.

Any employer considering disciplinary sanctions against any employee should always consider any mitigating circumstances such as health, length of service, prior disciplinary issues etc. because it may impact on whether the decision to dismiss was fair or not. However, if the misconduct is serious enough then no set of circumstances will mitigate the offence.

Posted: Nov 17, 2016 by admin in Unfair Dismissal

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Lee v HSBC Bank Plc – Do GP certificates declaring that an employee is unfit for work constitute a substantial effect on day to day activities for the purposes of S6 of the Equality Act?

Welcome back to your weekly case law update. Last week we looked at the recent Uber decision and how it will impact the gig economy and employment status. This week we are looking at disability discrimination.

The question this week:

Do GP certificates declaring that an employee is unfit for work constitute a substantial effect on day to day activities for the purposes of S6 of the Equality Act?

Mrs Lee, the Claimant, was employed as a cashier by, HSBC, the Respondent, a well-known high-street bank. The Claimant suffered from moderate anxiety and mild depression. The Claimant was prescribed medication for her conditions but did not take it, instead preferring herbal remedies, she also suffered from sleep deprivation, heightened emotions and panic attacks as a result of her conditions.

The Claimant was medically suspended and ultimately dismissed after failing to attend a psychological capacity assessment. She commenced litigation against the Respondent for unfair dismissal and disability discrimination.

At a preliminary hearing the Employment Judge held that the Claimant wasn’t disabled and dismissed the claim, partly due to the Claimant being an unreliable witness but also because the Employment Judge held that the effect of the Claimant’s disability was not substantial. The Claimant appealed and asked the judge to consider fresh evidence which wasn’t available at the time of the original hearing.

At the appeal the Claimant presented GP Certificates stating that she was unfit for the work. The Claimant also argued that work was a day-to-day activity and being signed off from it due to a medical condition should satisfy the substantial effect condition.

The Employment Judge held that despite being signed off work the Claimant was not taking her medication and was also able to work for another employer on days she was not contracted to work for the Respondent. For these reasons, as well as the Claimant’s unreliable account of events, the Judge held that whilst the Claimant was suffering from a condition that was more than trivial it was merely minor and not substantial enough to impact her ability to carry out day to day activities.

The takeaway point:

A GP certificate declaring an employee unfit for work might satisfy the substantial aspect of S6 of the Equality Act. However, if there is evidence that suggests otherwise the ET will consider it and a GP certificate is not the be all and end all of such cases.

Posted: Nov 11, 2016 by admin in Employment Tribunal

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