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Sports Direct – The scandal continues

The Sports Direct scandal keeps rumbling on. The latest papers to be filed with the High Court have revealed that women returning from maternity leave were moved onto zero hours contracts and were therefore ineligible for the company’s bonus scheme, a PCP that clearly puts women at a disadvantage.

Furthermore, employees transferring from companies purchased by Sports Direct also had zero hours contracts imposed on them, despite having guaranteed hours at their previous company, which is a breach of TUPE Regulations.

This has led to over 188 employee bringing a claim for breach of contract after missing out on bonuses. A further claim by staff transferred from other companies has been bought due to the breach of TUPE regulations.

This month Sports Direct has also confirmed that it will pay one million pounds in back pay to over three thousand members of staff who did not receive the minimum wage. The company is also expected to face a two million pound fine due to them failing to pay the minimum wage. A heavy price for some serious failings.

Posted: Aug 25, 2016 by admin in TUPE

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A guide to Bank Holiday working

Last month we did a guide to warm weather working. Additionally, this summer has seen two major sporting events which can lead to higher levels of leave, and, some employers have an increased amount of Bank Holidays in this holiday year. With that in mind and a Bank Holiday looming on the horizon, we thought it would be a good time to advise on common issues that crop up.

Firstly, there is no statutory right to extra pay for Bank Holiday workers. Many employees believe they are entitled to time and a half or double pay but this is only the case if it is in the terms of their contract. If it is not a contractual term then the employer is only entitled to normal pay.

However, if it is not a contractual term but employers have paid enhanced bank holiday pay in the past then this verbal agreement may have become a contractual entitlement and should be followed. Failure to pay this enhanced rate could then be seen as a breach of contract.

Similarly, there is no statutory right to time off on Bank Holidays. Employees can therefore be required to work Bank Holidays unless their contract states otherwise. So long as the employee is allowed 5.6 weeks of annual leave it does not matter if they have to work Bank Holidays.

If a contract does state that employees have to work on a Bank Holiday then the employee cannot refuse, even for religious reasons. Case law states employees are not guaranteed time off for religious holidays. However failure to grant Christian employees time off for Bank holidays with religious importance can amount to indirect discrimination when compared to members of other faiths.

Finally, part time workers should not be treated any less favourably when it comes to allocating time off for Bank Holidays. We always advise clients to give them a pro-rata allowance of paid Bank Holidays, regardless of whether or not they work on the day which the Bank Holiday falls. That way they cannot be less favourably treated in comparison to full time employees.

Posted: Aug 25, 2016 by admin in E Learning, Religious Discrimination

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Byron Burger – The illegal worker honey trap

The recent case of Nayak v Royal Mail established what employers should do if they think an employee doesn’t have the right to work in the UK. This month Byron Burger attracted heavy criticism using a training session as a ruse to dupe kitchen staff into a UK Border Force trap. This resulted in the arrest of 35 Byron Burger employees.

Before employing these kitchen workers Byron should have done document checks to ensure the employee had the right to work in the UK. If this had been done Byron could have dismissed the employee if they reasonably believed they didn’t have the right to work in the UK as per the judgement in Nayak.

Byron also needs to be careful about race discrimination claims, which have no cap on compensation awards. We recently covered a modern slavery case which established discriminating against someone on the grounds of their nationality is unlawful, however their immigration status is not.

Illegality could be a defence to any race discrimination claims but the High Court case of Hounga v Allen held that in extreme circumstances of mistreatment or abuse, illegality will not bar the Claimant from bringing a claim. That case involved incidents of physical abuse so may, or may not apply.

Finally such behaviour by an employer has lasting reputational damage. Both staff and customers will now feel less trustful of Byron and this could have a significant impact on sales and recruitment.

Posted: Aug 25, 2016 by admin in Employment Tribunal

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Gig economy – Deliveroo workers go on strike

Last month we examined the gig economy and briefly mentioned food delivery firm, Deliveroo, whose contracts breach s203 of the employment rights act by preventing staff from bringing Tribunal claims about their employment status.

This month staff at Deliveroo have gone on strike after the company proposed to pay them £3.75 per delivery instead of £7 an hour plus £1 for every delivery.  With some deliveries requiring lots of travel between restaurant and customer it could mean some staff earn as little as £3.75 an hour.

This is all possible because, like other members of the gig economy, these delivery couriers are all technically self-employed. This means their employment rights greatly differ to those of a normal employee. This doesn’t only mean right to the minimum wage, if a Deliveroo courier was hurt due to the company’s negligence they would have no access to sick pay or personal injury claims.

Posted: Aug 25, 2016 by admin in Employment Tribunal

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Race, Religious and Sex Discrimination – Muslim women face triple penalty

report by the Women and Equalities Committee has found that Muslim women are three times less likely to be in work due to the perceived triple penalty of being a women, a Muslim and being BAME. Religion is believed to be the main cause due to a rise in Islamophobia in society as a whole.

This discrimination often stems from Muslim women wearing religious clothing in the work place. The report suggests name-blind recruitment as a means of reducing discrimination in the recruitment phase.

Posted: Aug 25, 2016 by admin in Religious Discrimination

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PJH Law News

Olivia Sinfield, following her return from adoption leave in August 2016, has decided to join a law firm in London. Olivia has made an excellent contribution to PJH Law since 2009. I am sure all clients will join us in wishing Olivia success in her new role. PJH Law is reviewing its resource requirements and we will keep clients informed as and when a replacement for Olivia is found.

In other news our Solicitors have been busy winning Employment Tribunal claims for both employers and employees on a range of issues including unfair dismissal (which included a win against the United States of America!), unfair dismissal for reasons relating to health and safety, disability discrimination and an application for interim relief. Following Judicial Mediation, we also settled an equal pay claim on behalf of a female manager for a substantial five figure sum.

 

Posted: Aug 25, 2016 by admin in Employment Tribunal

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Castore – Premium performance sportswear for men

Phil Hyland’s nephews, Thomas and Philip Beahon, both former professional sportsmen, have set up their own sportswear clothing business, Castore. Here’s what they say:

Created to disrupt the global sportswear market, Castore is the world’s first premium sportswear brand for men and brings a new level of performance quality to the men’s sportswear sector.

Castore products are made from a specially constructed high performance Italian fabric and utilise patented technology never before seen in men’s sportswear to create more technically advanced garments for serious athletes and more discerning gym goers.

The foundations of Castore lie in a relentless focus on performance enhancement and all products contain innovative features – from fully bonded seams to minimise weight, micro laser-cut holes to enhance ventilation and a unique anti-odour technology ensuring the t-shirts never smell; if you are wearing Castore, you know you are wearing the very best.

Castore is also providing free sportswear to 5 Olympic sportsmen who have high hopes of a medal at the Olympic Games in Tokyo in 2020.

Exclusive to readers of this email: enter the code ‘find away’ at checkout to receive a 25% discount on all orders. Shop the collection here.

Posted: Aug 25, 2016 by admin in E Learning

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Lighter side of the news – Estate agents sacked for fighting protesters outside BoJo’s home

No newsletter would be complete without a tale of outlandish conduct that gets swept up by tabloid hacks. This month’s case concerns three employees of the estate agent firm Foxtons, which has revenue of over £149m a year, who were sacked for fighting protesters against class division. Surely a classic example of Schaudenfreude?

The three staff were supposedly drunk after their Islington branch shut early due to fears it would be targeted by the protest. On their way home they came across the protest, which was now outside the Foreign Secretary, Boris Johnson’s, house.

In footage uploaded to Youtube, one of the Estate Agents reportedly shouted, “Oh Boris, I love you” before they charged into the crowd throwing several punches. The incident was broken up by police and the Estate Agents were quite rightly dismissed, presumably for gross misconduct.

Posted: Aug 25, 2016 by admin in Unfair Dismissal

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Dutton v The Governing Body of Woodslee Primary School & Anor – Can a provision, criterion or policy (PCP), that prevents staff from working part time, indirectly discriminate against women?

Hello and welcome back to our case law update. We apologise for the lack of cases over the last fortnight, unfortunately supply of judgments has not kept up with eager demand.

Last time, we looked at sex discrimination and this week, due to a lack of new judgments, we will also be looking at sex discrimination. This week’s case is somewhat similar to our last case of the week,  and, despite being a tad repetitive, highlights the importance of the issue and reinforces the EAT’s stance.

Today’s question:

Can a provision, criterion or policy (PCP), that prevents staff from working part time, indirectly discriminate against women?

Ms Dutton, the Claimant, was a teacher for Woodslee Primary School, the Respondent. The Respondent was a school that specialised in teaching children with special educational needs and it was commonly held that the children needed continuity and stability in their learning environment.

The Claimant became pregnant and, before starting her maternity leave, requested to work 4 days a week upon her return to work. The Respondent rejected this request highlighting the need for stability in the children’s education. The Claimant appealed and after this was rejected she initiated tribunal proceedings.

The ET held that the PCP that prevented part time working was discriminatory against woman in a similar situation to the Claimant (working parent with young children). However, it held that the PCP was a means to achieve the aim of providing stability and continuity for the children. The ET found that this PCP was a legitimate means of achieving its aim and the claim was dismissed.

The Claimant appealed and the EAT allowed the appeal. It held that the ET had not properly determined whether the Claimant’s request for a four day week was breaching the need for a stable learning environment. It held that the case should be remitted back to Tribunal to decide whether the PCP was fair.

The takeaway point:

Yes, a PCP that prevents part time working can be discriminatory. Similar to last week this will be decided on a case by case basis as the nature of the PCP, size of the employer and facts of the case will all impact the decision.

What this case and the one before it suggest is that even in scenarios where the PCP seems to be quite legitimate the EAT will always want to ensure that an employer avoids any discrimination, indirect or otherwise.

To read more on sex discrimination please click here. If you enjoyed this post, please share it.

Furthermore, to compensate for the delay since the last Case of the Week, there will be a second update this week, with the monthly newsletter to come on Friday. There will even be a post-Olympics sportswear promotion for you!

Posted: Aug 22, 2016 by admin in Employment Tribunal

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XC Trains v CD – Does a Provision Criterion or Practice [PCP] that requires all staff to be able to work 50% of rosters and work Saturdays indirectly discriminate against women?

Hello and welcome back to another, slightly later than planned, weekly case law update. Last week’s newsletter had features on the gig society and a guide to summer HR issues. This week we will be examining sex discrimination and weekend working.

Today’s question:

Does a Provision Criterion or Practice [PCP] that requires all staff to be able to work 50% of rosters and work Saturdays indirectly discriminate against women?

The Claimant, referred to as CD, was a train driver and instructor, with nearly 20 years’ service, for XC Trains (Cross Country to me and you), the Respondent. The Respondent employed 559 drivers, of whom 17 (3%) were women. At the Claimant’s local train station there were 21 drivers of which 4 (19%) were women.

The Respondent had a history of rejecting flexible working requests and instead agreeing accommodations with staff to vary their working hours on a temporary basis. The Claimant was married with three young children, however, she separated from her husband and childcare became difficult. She submitted a flexible working request to work 8-6, Monday-Friday.

The Respondent rejected this request as the shifts were rotated to allow all drivers access to the family friendly hours and granting the Claimant flexible working would limit other driver’s access to family friendly shifts. Furthermore, if no other drivers were willing to cover the Claimant’s weekend shifts then the Respondent would not be able to meet its customer’s needs.

The Claimant proceeded with an indirect sex discrimination claim stating that the PCP for Saturday working put women at a particular disadvantage. The ET allowed her claim stating that the Respondent employed a disproportionate amount of men compared to women.

It held that this appeared to be due to the Saturday working PCP. It cited that, in the past, many other employers, such as the Emergency Services, had similar PCPs and a gender imbalanced work forces but had managed to rectify this.

The Respondent appealed and the EAT allowed the appeal. It held that whilst the PCP did put women at a disadvantage the Respondent was obliged to provide an all week service to its customers. The case was remitted to a fresh tribunal.

The takeaway point:

A PCP that requires weekend working can be discriminatory but the nature, needs and size of the Respondent’s business will determine whether it is. In this case the Respondent’s business operations meant allowing staff to work family friendly hours would be both impractical to its customers and unfair to other staff. However it has been remitted to a fresh tribunal so may yet be found to be discriminatory.

Posted: Aug 5, 2016 by admin in Employment Tribunal

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