Category Archives: Mark’s Monthly

Menopause – considerations for employers

October 2021 has been designated as “World Menopause Awareness month” by the International Menopause Society (IMS), in collaboration with the World Health Organization (WHO), with the aim of raising awareness of the issue and support options. We are therefore taking the opportunity to highlight related issues that may occur in the workplace.

It is becoming increasingly recognised that this is a health and wellbeing concern for staff and needs to be handled sensitively by employers as part of their duty of care.

Failure to do so can result in not only a loss of working hours and productivity, or of women leaving work altogether, but also claims against the employer who fails to recognise and address issues arising.

If an employee or worker is put at a disadvantage or treated less favourably because of their menopause symptoms, this could result in a claim for discrimination connected to a protected characteristic, particularly sex or age. Thoughtless comments about menopause could also lead to claims of harassment on grounds of sex or age.

Menopause symptoms vary widely from person to person and in their severity and persistence. Symptoms which are long lasting and have a significant effect could meet the definition of a disability for which reasonable adjustments are required. Certain other conditions classed as disabilities, or their treatments, can trigger early menopause, and symptoms related will therefore need to be addressed sensitively.

There may be very simple facilities or arrangements that can alleviate symptoms if put in place in consultation with those who may be affected. These can include sitting close to open windows or fans. However, it is important that managers are aware that symptoms can vary greatly, and they should not make assumptions or use a “one size fits all” approach. They should also be aware that there are symptoms which cannot be specifically relieved by action in the workplace, but can still affect sufferers in the workplace , such as the consequences of lack of sleep.

Employees affected by menopause should feel comfortable in raising issues, but this may not always be the case particularly if there is a male dominated workplace or management structure. Although all managers should develop awareness, employers can encourage any issues to be raised at an early stage by ensuring that there is at least one appropriate designated manager who staff know they can approach and receive support.

The Equality Commission for Northern Ireland, the Irish Congress of Trade Unions Northern Ireland Committee and the Labour Relations Agency have together produced the guidance ‘Promoting Equality in Employment for Women Affected by the Menopause’, which can be accessed using the link below. This provides advice and guidance in an accessible form. Readers in GB should note that the guidance will be relevant and helpful there too.

https://www.equalityni.org/ECNI/media/ECNI/Publications/Employers%20and%20Service%20Providers/MenopauseInWorkplace.pdf

As always, if you are aware of specific issues with your workforce or need specific advice in this area, please get in touch with us.

Lessons from a recently reported harassment case

It was recently reported that a female former employee successfully claimed sexual harassment against the Bank of Ireland.  In this article, we consider what employers can learn from the case.

The Tribunal found that, despite an independent report instigated by the Bank finding that the incidents complained of were not serious, the Claimant had in fact been subjected to serious sexual harassment.  It found both the Bank and the individual involved, “F”, liable for the harassment and awarded £18,000 as compensation for injury to feelings made up of a £14,000 award and £4,000 in interest.

The Claimant started work with Bank of Ireland on 11 May 2015, when aged 25, as a Business Services Advisor.   The perpetrator was aged around 50.  Both were based in the Bank’s offices in Belfast City Centre but did not work together.

After the Claimant commenced employment F would frequently approach the Claimant at her desk and make conversation with her about trivial matters which to the Claimant seemed unnecessary, particularly since they were not working together.

Subsequently the following occurred:

June 2015 – F gave the Claimant a floor plan of the office.  He was not asked to do so by any line manager or the Claimant and had done so after he had overheard a conversation between the Claimant and another female colleague.

July 2015 – F messaged the Claimant, saying “have you noticed that N looks over us every time we talk”.  The Claimant replied that she had not and would not care if she was but was concerned that F seemed to be under the impression that there was some friendship or relationship between them when there was not.

August 2015 – the Claimant was wearing her hair in a bun and F came over to her desk and remarked that her hairstyle was “really in fashion and that he had seen it on a website he was looking at”.  Later the same day he brought over to the Claimant an eight-page printout from the internet stapled together in a booklet of celebrity hairstyles and suggested she might want to try some of them out.

September 2015 – following the Claimant’s return from annual leave, during which she had been on holiday in Holland with her mother, F asked her had she had a nice time in Barbados.  F then went on to say “I seen your bikini photoshoot pictures and you are going to have lots of fan mail to catch up on from being away”.  She had told him she had no idea what he was talking about.  There were and are no such photoshoot or photos of the Claimant in her bikini.

During this period, F regularly came to her desk, when she was opening and sorting out company post, suggesting she was opening fan mail, which she felt was insinuating she was some sort of a celebrity.

In September/October 2015, when the Claimant and F were leaving work, F commented that they always seem to meet at the lift in the evenings, making the Claimant feel concerned that F was timing his leaving from work in order to be in the lift at the same time.

20 November 2015 The Claimant was to go out to dinner as a part of team night out.  She was in “dressier” clothes than normal and was wearing her hair down and styled.  Throughout the day, F made gratuitous personal remarks about her appearance and what she was wearing and, on one occasion, pulled her hair when walking past the back of her chair.

The Claimant told her line manager about this incident during dinner that evening.  When back at work, her line manager spoke to F’s line manager but the Claimant was not informed of any action to be taken.

On 26 November 2015, F emailed the Claimant a link to a picture of insect eating a carrot, which to the Claimant was suggestive.  F later came to The Claimant’s desk and apologised for sending her the email in error.  The Claimant made it clear that he was not to send her any more messages and that she did not want to talk to him at all.

The Claimant raised a verbal complaint with her line manager on 27 November 2015.  Following a discussion with HR, the Claimant’s line manager advised her that whether she wished to proceed formally or informally was up to her.   No information was provided to the Claimant on the Bank’s harassment policy and procedures.

F’s line manager spoke to F on 1 December 2015 to see whether he accepted or rejected what the Claimant had alleged against him.  At the meeting F apologised and stated that he would no longer interact with the Claimant in any way that could be construed as “friendly” and all interaction would be on a purely business basis.

The Claimant was then informed that unless for purely business purposes, F would have no contact with her. The Claimant stated that on the basis that F had been “spoken to” and that he would not continue with any non-business related communication (verbal, email or other), she would be satisfied to leave it at this and also understanding that if there was a re‑occurrence, a full investigation would be triggered.

F was advised of the outcome and that there was to be no repetition (accidental or otherwise) so that any contact with the Claimant in the future was to relate to business purposes solely.  F asked that the same also applied to the Claimant.

This was treated as a verbal warning, but it was not confirmed to F in writing or placed on his personnel file.

There were no further issues until June 2016, when there was an incident at a coffee machine. F stated that he had been listening to the Claimant’s telephone calls and that she was good on the phone with difficult customers.  The Claimant was concerned that F appeared to be starting to resume his earlier behaviour.

On 15 June 2016, R a female colleague of the Claimant and of a similar age who worked in a different Department but on the same floor as the Claimant, told her that F had been also bothering her for some time, had made repeated comments about her looks, regularly touched her on the arm and back and shortly before R had spoken to the Claimant he had whispered in her ear that she had looked lovely that day.  R reported this to her manager, who in turn spoke to F’s line manager, who in turn spoke to F informally. However, R did not want to make a formal complaint or receive an apology.

In July, F was reportedly drunk at work and sleeping at his desk, however management took no action.

On 4 July 2016 F came back to the office at 5.05 pm to retrieve a forgotten bus pass, but went to the Claimant’s desk and asked how she was keeping.

The next day the Claimant submitted a written complaint that she had been harassed by F and that F had received no formal warning for sexual harassment or being drunk at work.

Subsequently F was suspended from work and an investigator was appointed.  The Claimant went on sick leave stating stress.

The investigator did not uphold the Claimant’s complaint, finding that as the Claimant had agreed to an informal approach at the time of her first complaint, she could not subsequently criticise the employer for not conducting a formal procedure.   However the investigator did find that R’s report of sexual harassment by F should have been the subject of a formal investigation, despite her wanting to deal with it informally, in view of the previous reports of sexual harassment by the Claimant.   The bank had a duty of care to other staff to ensure no further repetition.

The Tribunal found disagreed with the investigator’s view of F’s conduct, found that the Claimant was the victim of unlawful sexual harassment and awarded compensation.

The conversation at the coffee machine was enough to satisfy tribunal of sexual harassment because of the earlier promise not to talk to her about anything that was not work-related.   The earlier incidents of harassment constituted a continuing state of affairs and this meant that the Tribunal could consider them even though the Bank argued that those incidents were complained about outside the Tribunal time limit of three months.

What can we learn from this case

1.     Record meetings and outcomes in writing

The Tribunal was critical of the Bank’s processes, in that the verbal warning issued to F was not confirmed in writing, and no notes were taken at meetings with the Claimant and F at the informal stages.

2.     The Equality Commission will publicise successful cases

The Equality Commission supported the Claimant in this case by representing her in Tribunal.  The Equality Commission has a policy of promoting successful outcomes in the media, including on TV and newspapers.  In this case the Claimant told her story on local news on tv and radio which naturally affects the reputation of Bank of Ireland

3.     Statutory defence

In a case such as this, an employer can escape liability if it can show that it took all reasonable steps to prevent the harassment occurring.   This is known as the statutory defence.  The Bank was unsuccessful in proving the statutory defence and so was vicariously liable for F’s actions.

The Tribunal noted that the Bank’s Harassment policy had been written in 2000, but not subsequently updated.

The Tribunal was critical that despite the issue of the verbal warning, F was not subsequently given training in the Harassment policy.  It was also critical that he had been provided with no training following a similar incident at the Bangor branch in 2009.  He was not given a copy of the policy until he was suspended.   Line management had also not been training in the Harassment policy.

The Tribunal will require steps to be taken before an act of harassment has taken place, in order for an employer to rely on the defence.

In this case the employer had not done enough to demonstrate that it had taken all reasonable steps to prevent the harassment taking place.  The lesson is to regularly review policies and ensure that staff and management are aware of the policies and the need to comply with them.

4.     Sometimes an allegation must be investigated even if the employee does not consent.

Whilst the Tribunal did not categorically state that the Bank should have formally investigated R’s complaint, it did find that its failure to investigate added to the reasoning that the Bank could not rely on the statutory defence.

The employer should investigate incidents of its own volition in certain circumstances even if the victim does not want to make a formal complaint

5.     Time limits

The Tribunal will extend time limits for Claimants if it is just and equitable to do so.  In this case it found that there was a continuing state of affairs meaning that incidents occurring more than a year before a claim was submitted could still be considered by the Tribunal.

Conclusion

It is extremely important that employers keep their anti-harassment policies up to date and that employees are provided with training in this area. It is also important that, if an incident is reported, that it is fully investigated and appropriate action taken.

 

Right to disconnect and Republic of Ireland updates

For those operating in the Republic of Ireland we have a brief update on changes in the jurisdiction. The section on “Right to Disconnect” may be of interest to readers operating in NI and GB as this is something that is on the agenda and gathering momentum in these jurisdictions.

The Republic of Ireland updates that we want to highlight today are:-

  1. There are two new Codes of Practice on the Prevention and Resolution of Bullying at Work and The Right to Disconnect
  2. There are changes to Adoptive Leave, Parents Leave and Paternity Leave.
  3. In the future statutory sick pay will be introduced along with a Code of Practice on the Right to work remotely.

Prevention and Resolution of Bullying at Work

A new Code of Practice on the Prevention and Resolution of Bullying at Work has been issued by the Workplace Relations Commission.   It replaces Codes of Practice on Bullying issued by the Health and Safety Authority in 2005 and the Labour Relations Commission in 2002.

The Code recognises that workplace bullying is both a health and safety and an employment law issue.  In ROI, an employee can complain externally to the Workplace Relations Commission and the Health and Safety Authority.  Equivalent courses of action are not available to employees in NI/UK.

A complaint to the Workplace Relations Commission: An Adjudication Officer of the WRC can conduct an investigation into the fairness of an investigation carried out by the employer.

A Report to the Health and Safety Authority: Where an employer fails to act reasonably in a bullying matter, the HSA has the power to take enforcement action, for example, by giving verbal advice, written advice, or issuing an Improvement Direction or an Improvement Notice.  The HSA can also, after investigation, forward a file, with recommendations, to the Director of Public Prosecution (DPP) for their decision as to the prosecution of employers where there is evidence that the employers have failed in their duty to protect employees from bullying.

The New Code stresses that “bullying” and “harassment” are two distinct concepts, and the Code solely addresses the question of workplace bullying.  That stated, the Code notes that an employer can have one policy document containing its policy and procedures in relation to both bullying and harassment. Key points in the Code are:

  • The Code identifies the employer’s duty to act reasonably to prevent workplace bullying patterns developing and to resolve complaints.
  • The employer must also prepare a Safety Statement under section 20 of the Safety, Health and Welfare at Work Act 2005 which includes bullying.
  • It must also develop a proper workplace anti-bullying policy, in consultation with employees. This should include the Code’s three stage process: an initial informal process, a secondary informal process and a formal process.
  • Employers have a duty to train managers, both those managing complaints and line management.
  • Where possible, a Contact Person should be appointed whose role is to listen, and offer guidance on options in line with company policy and procedures, on a strictly confidential basis. The contact person will have no role in the investigation of any complaints.

Failure to follow a Code is not an offence in itself, however the Code is admissible in evidence in proceedings in the Labour Court or Workplace Relations Commission and where relevant will be taken into account in determining a matter.

The Right to Disconnect

Checking emails outside of working hours has become normal practice in many businesses.  The Code of Practice on the Right to Disconnect seeks to address this.  The Code states that

  • Employees have the right not to routinely perform work outside normal working hours.
  • Employees have the right not to be penalised for refusing to attend to work matters outside of normal working hours and
  • There is a duty on employers and employees to respect another person’s right to disconnect, e.g. by not routinely emailing or calling outside normal working hours.

Employers should develop a Right to Disconnect Policy for employees and seek to implement this in the workplace.  In particular, employers should ensure that managers are aware of an employee’s working time entitlements and the right to disconnect.  Managers are encouraged to be active role models by openly supporting the policy.

Failure to adhere to the Code could result in increased awards of compensation both in the civil courts for matters such as personal injury complaints caused by bullying and/or stress, and in respect of complaints based on statutory rights such as working time, unfair dismissal (including constructive dismissal) and health and safety at work.

Changes to family leave

Under the Family Leave and Miscellaneous Provisions Act 2021:

  • Parents leave increases from two weeks to five weeks.  During the leave eligible employees are entitled to Parent’s Benefit from the Department of Social Development.
  • Adoptive leave is now available to same sex couples whereas previously it was only available to female adopters.
  • Paternity leave is amended to ensure that a person cannot take adoptive leave where they have taken paternity leave in respect of the same child.

Coming up:

Sick Pay:  Currently there is no obligation on employers to pay sick pay.  Sick employees must claim illness benefit from the Department of Social Protection unless their employer has a company sick pay policy.   However, the government is to bring in statutory sick pay by the end of 2021.

Initially employers will be obliged to pay sick pay for three days of absence, starting in 2022, rising to 5 days in 2023 and 7 days in 2024. Employers will cover the cost of 10 sick days per year by 2025. It is being phased in to help employers plan ahead and manage the additional cost.

Sick pay due will be 70% of an employee’s wage, subject to a daily threshold of €110. The cap can be revised over time by ministerial order in line with inflation.

An employee will have to obtain a medical certificate to avail of statutory sick pay, and the entitlement is subject to the employee having worked for their employer for a minimum of six months.  Once entitlement to sick pay from their employer ends, employees who need to take more time off may qualify for illness benefit from the Department of Social Protection subject to PRSI contributions.

Right to request remote working

A Public Consultation has been undertaken on the introduction of a right to request remote work, following the National Remote Working Strategy, launched by the government in January 2021.  There is not yet draft legislation but Guidance on Working Remotely has already been published by the Department for Enterprise, Trade, and Employment.

Gender Pay Information bill 2019 is due to come into force end of 2021 and is to require employers to provide information on pay, bonuses and benefits in kind provided to men and women.

Organisation of Working Time (Reproductive Health Related Leave) Bill 2021 – If passed, the Bill will create an Act to provide for a period of paid leave consequent upon miscarriage or for the purposes of availing of reproductive healthcare, with protection from unfair dismissal.

If you would like to talk about any of the above, please contact a member of our team.

 

Enhancing pay for maternity and other types of family leave

If an employer pays employees more than statutory maternity pay when on maternity leave, does this mean that the employer is also obliged to enhance pay for other types of family leave? 

In this article, we look at some of the other types of family leave and advise on what employers should consider regarding each type of leave.

Adoption pay

If the employer enhances maternity pay but does not enhance adoption pay, there is a risk that this practice could be found to be indirect discrimination on grounds of sex, sexual orientation or disability.  This is because adoption leave can taken by men, same sex couples and people with fertility issues (which might, in some cases, arise because of a disability).

To defend against an indirect discrimination claim, the employer must show that the there was a legitimate aim to practice and that it used a proportionate means to achieve that aim.  It is difficult to think of a legitimate aim for this practice.

Whilst there is no decided case law on this point, we would advise against treating adoption leave and pay differently to maternity leave and pay.

Shared Parental Leave Pay 

An employer is not required to pay enhanced Shared parental pay where it pays enhanced maternity pay and/or enhanced adoption pay, based on recent case law:

  • Paying employees enhanced maternity pay but statutory shared parental pay is not discrimination on grounds of sex (Court of Appeal in Capital Customer Management v Ali).
  • Paying employees enhanced adoption pay alongside lower shared parental pay is not direct discrimination on grounds of sex (EAT in Price v Powys County Council).

The basis of the distinction between shared parental leave and maternity/adoption leave is that the primary purposes of types of leave are different.  The purpose of shared parental leave is to provide childcare, but the primary purposes of maternity leave and adoption leave are wider, and include recovering from birth (in the case of maternity) and forming a bond with the child.

Therefore an employer can continue to offer statutory shared parental pay, whilst at the same time offering enhanced maternity pay and enhanced adoption pay, without risk of a discrimination finding.

Paternity pay 

An employer is not obligated to enhance paternity pay above statutory paternity pay where it enhances maternity pay.  It is unlikely that an employee entitled to statutory paternity pay could successfully sue for discrimination, on the basis that the employer enhances maternity pay.    Previous cases have confirmed that the law allows for women to be treated more favourably than men in these situations, on grounds of pregnancy, maternity or that they have recently given birth.

Time off for dependants and Parental Leave 

Employees are entitled to a reasonable amount of time off to deal with emergencies involving dependants.  There is no right to pay for time off for dependants.  Employers looking at their overall benefits package could consider offering a fixed maximum number of days per year as paid time off for dependants but there is no obligation to do so.

Similarly, Parental leave provides up to 4 weeks unpaid leave per annum, subject to a total of 18 weeks per child.  An employer could consider providing some form of pay for parental leave.  However we do not anticipate a claim for failing to pay for these types of leave, provided staff are treated consistently.

We hope this article has been helpful. If you have any queries, please get in touch.

New Equality Commission guidance on recruiting disabled people

The Equality Commission in Northern Ireland has issued new guidance on recruiting disabled people.  “Making it work” shares the personal stories of six individuals with different disabilities and their success in finding work.   There is also information on support available to individuals and employers to employ disabled people.

Research by Scope tells us that disabled people make 60% more applications than those without a disability before finding a job.  One in five people in Northern Ireland live with a disability and the employment rate for disabled people in Northern Ireland is 37.3%, which is the lowest figure across all of the UK regions.  However recruiting disabled people can create a workforce that reflects the range of customers it serves and the community in which it is based.

Employers who are keen to be truly “equal opportunity employers” can think about taking “outreach positive action”.   An example of this could be reserving a quota of jobs for disabled people, to the exclusion of people who are not disabled, or operating a “guaranteed interview scheme” for disabled job applicants.  Outreach positive action is lawful under the Disability Discrimination Act 1995.

Whilst outreach positive action is voluntary, reasonable adjustments are not.

Employers are under a legal duty to make reasonable adjustments.  Once an employer knows, or could reasonably be expected to know that an applicant is disabled, the obligation to consider reasonable adjustments is triggered, and the employer should consider this even if it has not been raised by the employee.   Remember that a disability can be physical or mental and can also be hidden.

Reasonable adjustments in recruitment could include providing information about the job and the application form in an alternative format, eg large print, Braille or as an audio file or providing extra time for an assessment.   The application form should contain space for candidates to provide information about any adjustments they may require during the recruitment process.

There are a range of organisations providing employability programmes for disabled people, for all areas of disability.  In addition, the Department for Communities provide a range of mainstream and specialist employment programmes to assist people to find work and provide in-work support.

Employers may be able to get help from Access to Work towards some costs where an individual requires support or adaptations. Access to Work can provide a grant to pay for the cost of the support, for example to provide special aids and equipment, adaptations to equipment, communication support at interview and support workers.

The Equality Commission publication is available at Making it Work – Employment Support Services for People with Disabilities (equalityni.org)

Uber

 

Uber has been unsuccessful at the Supreme Court in its appeal against a finding that the taxi drivers it supplies are “workers” within the meaning of employment legislation.

Uber argued that the taxi drivers providing its service were self employed contractors and that Uber is a booking agent, providing the drivers with access to the Uber app and payment services.  Uber provided the courts with documents, including a “Partner Agreement” and “Services Agreement” to evidence their argument that the drivers were self employed.

However, the Supreme Court said that the task for the tribunals and the courts was to determine whether the claimants fell within the definition of a “worker”, irrespective of what had been contractually agreed.

The general purpose of the relevant employment legislation is to protect vulnerable workers from being paid too little for the work they do or subjected to other forms of unfair treatment.

It would be inconsistent with the purpose of this legislation to treat the terms of a written contract as the starting point in deciding whether an individual falls within the definition of a “worker”.

An employer is often in a position to dictate contract terms and the individual performing the work has little or no ability to influence those terms.  The effectiveness of the protection under employment legislation would be seriously undermined if the company could, by the way in which the relationship is characterised in the written contract, determine whether or not the individual is to be classified as a worker. Laws such as the National Minimum Wage Act were enacted to protect those whom Parliament considers to be in need of protection and not just those who are designated by their employer as qualifying for it.

This confirms that the claimant Uber drivers in this case are entitled to:

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

An employment tribunal had held in 2016 that Uber drivers were workers, and Uber unsuccessfully appealed this decision to the Employment Appeals Tribunal, the Court of Appeal and now the Supreme Court.  In deciding that the drivers were “workers”, the Employment Tribunal based its assessment essentially on the control Uber required to have over drivers, including the following:

  1. Uber interviews and recruits its drivers.
  2. Uber controls the key passenger information, including the trip destination, and excluded drivers from it.
  3. Uber required drivers to accept trips and not cancel trips, and enforced this requirement by logging off from the App drivers who did so.
  4. Uber dictates the route that must be followed by the driver.
  5. Uber fixes the fare and the driver cannot negotiate a higher sum.
  6. Uber imposes a number of conditions on drivers (including the standard of car they must use and quality standards).
  7. Uber puts drivers through a rating system which effectively amounts to a performance/disciplinary procedure.
  8. Uber dealt with customer refunds, sometimes without discussing the matter with the driver, when the driver’s income would be affected.
  9. Uber handles customer complaints, including complaints about the driver.

The Supreme Court has confirmed what we knew; that where an individual claims to have worker or employment status, the tribunal will not look simply at the written documents, but at what happens in practice.   We can be sure that the Supreme Court decision will be quoted in  employment tribunal decisions on employment status in future.

It is important to correctly determine employment status to avoid unexpected liability for the minimum wage, holiday pay, income tax and employer national insurance contributions.

It is important also to bear in mind that from 6 April 2021, there will be a duty on employers to categorise the employment status of persons they engage under the IR35 rules.  From this date, the hirer/employer must decide whether that person is truly a self-employed consultant responsible for their own tax affairs, or whether the person is in fact and employee or worker, for whom PAYE and Employers National Insurance should be paid.   The new rules will affect medium and large organisations (turnover in excess of £10.2 million) in all sectors of the economy.

We are often asked by clients to review working arrangements and advise on employment status so if you are in any doubt about whether or not someone you engage can truly be said to be self-employed, please contact us.

 

What to look out for in 2021

This month we are highlighting what to look out for in employment law in 2021

1.     Brexit

The UK is obliged to adhere to EU laws in force up to 31st December 2020 under the European Union (Withdrawal) Act 2018.  This converts and incorporates into domestic law, EU laws as they exist immediately before 31 December 2020.  

A Trade and Co-Operation Agreement between the United Kingdom and the EU was concluded on 24 December 2020.  This gives the UK tariff free trading with EU member states, on condition that there is a “level playing field” between UK and EU member states.   For employment law, this means that the UK can diverge from EU derived employment legislation, only if this does not give the UK an unfair competitive advantage.   If there is evidence that the UK’s divergence from EU employment law has materially impacted trade or investment, then the EU can take “appropriate rebalancing measures” which can include tariffs.

In practice, we think that this could affect the UK’s ability to change in substance the Working Time Regulations and the Agency Worker Regulations, as changes to these could give UK businesses an opportunity to reduce costs, thereby giving them an advantage over EU competitors.

The position in Northern Ireland is somewhat different to the rest of the UK, as there is a commitment in the Withdrawal Agreement that there will be no diminution of rights, safeguards or equality of opportunity enshrined in EU law in respect of Northern Ireland.  This means decisions of the ECJ in relation to discrimination law will continue to be relevant in Northern Ireland.

The UK will not be required to implement new EU Directives, but if this results in a significant divergence on employment rights in a way that materially affects trade or investment (and therefore results in unfair competition) then the EU can trigger rebalancing provisions.  This could include imposing tariffs.  Evidence of a material affect on trade or investment would have to be shown before rebalancing measures could be effected.

From our perspective, some key questions for employers following Brexit are as follows:-

(i)               If an employee lives in Donegal and works in Derry/Londonderry, how does Brexit affect this?

Northern Ireland and the Republic of Ireland are part of a Common Travel Area.  This arrangement predates Brexit and is not affected by Brexit.   If the employee is a national of the Republic of Ireland, he/she does not need permission to enter or remain in the UK, including a visa, or any form of residence permit or employment permit.   Equally, British citizens are able to work in Ireland without an employment permit, including on a self employed basis. This continues after free movement ended on 31 December 2020.

(ii)             What about employees from other EU member states?

If the individual who wants to work in UK  lives in another EU state, they will need to obtain a Frontier Worker Permit no later than 1 July 2021.   If an EU citizen already living and working  in the UK wants to continue to do so, they will need to apply under the EU Settlement Scheme or apply for British Citizenship.  The deadline to apply to the EU Settlement Scheme is 30 June 2021. EU citizens not already living in the UK will need to apply for a visa under the new points based immigration system.

Other immigration rules will apply for employees who are nationals of countries outside the EU.

(iii)           What happens with holiday pay – do we still have to includes commission, overtime etc?

At the moment, yes.  The Working Time Regulations will remain in force as the UK.  In the UK, employers are obliged to pay holiday pay on the basis of “normal remuneration”.  That can include not just basic pay, but also commission, bonuses and overtime pay.  This obligation comes from decisions of the European Court of Justice, where it was asked to interpret the Working Time Directive.

This may change, as the UK Court of Appeal and Supreme Court can overturn decisions of lower courts where EU law was applied.  There are three holiday pay cases due to come before the Supreme Court in 2021 which will give us an indication on the court’s attitude to diverging from EU law.  Those cases are:

  • Harpur Trust v Brazel, which relates to holiday entitlement for part time term time workers;
  • East of England Ambulance Service NHS Trust v Flowers, which looks at whether regular voluntary overtime should be construed as ‘normal’ pay and included when calculating statutory holiday pay under the Working Time Regulations; and
  • Chief Constable of the PSNI v Agnew, which concerns claim for back payments of holiday pay.

EU law will continue to impact the UK’s approach to holiday pay, as UK Employment Tribunals are likely to follow new ECJ decisions.   The Trade and Co Operation Agreement provides that courts and tribunals are no longer bound to follow new ECJ decisions but may give effect to them where relevant.   There is currently a lack of guidance on when the Tribunal should and should not give regard to decisions, and given that the Tribunal’s decisions may be appealed, we expect them to be cautious and follow new ECJ decisions where relevant.

The Northern Ireland Industrial Tribunal will have to give effect to ECJ decisions on equality matters, under the Northern Ireland Protocol in the Withdrawal Agreement.

2.     Changes to IR35

Where an individual works for a client through an intermediary (e.g. they set up a limited company to trade through), but would be an employee if they were providing their services directly, the IR35 rules may apply.  These rules are in place to make sure that where an individual would have been an employee if they were providing their services directly, they pay broadly the same tax and National Insurance Contributions as an employee.  They should not be able to avail of tax advantages simply by placing an intermediary between themselves and the end client.

From 6 April 2021 there will be a duty on employers to categorise the employment status of persons they engage under the IR35 rules.  From this date, the hirer/employer must decide whether that person is truly a self-employed consultant responsible for their own tax affairs, or whether the person is in fact and employee or worker, for whom PAYE and Employers National Insurance should be paid.

The new rules were due to come in to force in April 2020 but postponed due to COVID 19.   They will affect medium and large organisations (turnover in excess of £10.2 million) in all sectors of the economy.

The employer/hirer must provide reasons for its determination, and the determination must be given to the individual.    Until this is done, the hirer/employer is responsible for the individual’s PAYE and national insurance contributions. The employer/hirer is also under an obligation to respond to requests for information from the person they contract with, or the worker, as to whether the hirer qualifies as ‘small’ for the purposes of the new provisions.

There are a range of factors which need to be considered when deciding whether a person is self employed, employed, or has worker status, and we can advise you if you need to make a determination.  At this stage it would be wise to gather information on any individuals engaged through personal service companies in order to make the determination.

3.     Changes to the National Minimum Wage

The national living wage (NLW) will increase 2.2% to £8.91 from 1 April 2021 and will become available to people aged 23 and above, down from the current age of 25.

A summary of the increases is below:

Rate from April 2020 Rate from April 2021 Increase
Aged 25 and above £8.72* £8.91 2.2%
23 to 24-year-olds £8.20 £8.91 8.7%
21 to 22-year-olds £8.20 £8.36 2.0%
18 to 20-year-olds £6.45 £6.56 1.7%
16 to 17-year-olds £4.55 £4.62 1.5%
Apprentice rate £4.15 £4.30 3.6%
Accommodation offset £8.20 £8.36 2.0%

4.     Changes to coronavirus job retention scheme

The scheme has already been extended a number of times, most recently to the end of April 2021.  We expect further announcements in the next few months in relation to the scheme which we will report on as they arrive.

5.     In Northern Ireland:

Certain changes we had expected to see in 2020 did not happen, primarily due to the COVID-19 Pandemic.  Although the pandemic continues, we might expect to see some of the following introduced in 2021 in Northern Ireland:

  • Parental Bereavement leave
  • Gender pay gap reporting obligations
  • A ban on exclusivity clauses in Zero hours contracts

6.     In Great Britain:

Possible changes in 2021 include:

  • Neo natal leave and pay;
  • A week’s leave for unpaid carers;
  • making flexible working the default position for employers with 250 or more employees;
  • further reforms to exit pay in the public sector;
  • measures to ensure that tips left for workers go to them in full;
  • a new right for all workers to request a more predictable contract; and
  • an increase to the length of time required for continuity of employment to be broken.

A consultation has recently been announced looking into Restrictive Covenants in employment contracts (also known as Post Termination Restrictions).

We will report on any significant changes when legislation is announced.

If you would like to discuss any aspect of this article, please get in touch with us.

Employment Law in 2020

We have a confession to make. In our article at the start of the year, “What’s to come in employment law in 2020”, we didn’t mention any of the following:-

-        Coronavirus

-        Furlough

-        Flexible furlough

-        Self-isolation

-        Statutory Sick Pay

-        Quarantine

-        Social distancing

We hope we can be forgiven for not knowing exactly what was ahead of us at the start of the year. We doubt many people’s 2020 turned out the way they expected.

In this article, with the benefit of hindsight, we take a look at some of the major developments in employment law in 2020. Let’s start with the non-covid-related matters first:-

LRA Pre-claim conciliation (in Northern Ireland)

Since late January, anyone intending to bring a claim to the Tribunal has to first approach the Labour Relations Agency to discuss the possibility of settling their case before Tribunal proceedings are issued. To lodge the claim, the individual needs to obtain a Certificate from the LRA to confirm that pre-claim conciliation has been attempted.

Also, any employer seeking to make a referral to the LRA to enter into a settlement agreement with an employee or former employee, must register with the LRA’s online portal. We have assisted many clients this year with these LRA referrals. The online system is not without its problems but our experience of the LRA Officers themselves has been positive. They have always been very good at assisting the employer and the employee in reaching an agreement.

Changes in GB

Significant changes came into force in GB in April. Workers, as well as employees, became entitled to a statement of “written particulars” not later than the day they commence work. In addition, the statement must make reference to training, other paid leave and probationary periods.

Also, the reference period for determining an average week’s pay changed from 12 weeks to 52 weeks.

Parental Bereavement Leave came into force in GB in April 2020. We await the introduction of this right to Parental Bereavement Leave in NI and will let you know when it comes into force.

Coronavirus

It’s hard to know where to begin with the impact coronavirus has had on employment law in 2020.

Furlough

Back in March, before anyone had even heard of furlough, we were advising clients who were suffering a downturn in trade or voluntarily closing their premises in a bid to slow the spread of the virus. Back then, we were advising on short-time working and temporary lay-off.

Then, the Chancellor announced the Coronavirus Job Retention Scheme and everything shifted away from lay-off to furlough. We sought to keep clients updated with the many changes to the rules of the Scheme, including what circumstances were or were not appropriate circumstances in which employees could be furloughed and whether or not annual leave could be taken when employees went on furlough. We provided templates for agreements with employees going on furlough.

The furlough scheme was due to end in June, then was extended to July, then August, September and October. From 1st July, flexible furlough was possible, where employees could do some work and be placed on work for the difference between their contracted hours and the hours they were working.

The scheme was due to be replaced by the Job Support Scheme on 1st November but at the last minute (literally the night before!), the Job Support Scheme was shelved in favour of extending the furlough scheme until the end of March 2021. Cue further rounds of template letters and agreements for clients to issue to employees as first we sought to move employees from the furlough scheme to the Job Support Scheme, then to extend furlough agreements.

Hopefully, the position is now settled and there will be no further changes until the scheme ends. Employers should however be aware that, from 1st December, no employee can be placed on furlough if they are serving a contractual or statutory notice period.

Redundancies

Unfortunately, as the Chancellor said himself, it wasn’t possible to save every job. We assisted many clients through redundancy processes and this was a difficult time for the employers and employees involved. As the government started asking employers to contribute more to the cost of employee’s wages on furlough (first national insurance and pension, then 10% and then 20% of wages), employers began to assess whether jobs were going to be viable in the medium to long-term and reduce the number of employees accordingly.

Whether or not the extension of the furlough scheme will be enough to save other jobs or will simply delay employers introducing a further round of redundancies in the early part of 2021 remains to be seen.

Extension of entitlement to Statutory Sick Pay

Employees are generally only entitled to SSP after serving three unpaid “waiting days”. The government decided that, if the reason for the absence was covid-related, the employee would not have to serve the waiting days and the employee would be entitled to SSP from day one. The government also expanded the circumstances in which employees are entitled to SSP to include if they were having to isolate because they had close contact with someone who had tested positive. We advised on many complicating factors regarding the expanded entitlement to SSP including whether or not an employee entitled to SSP because they had close contact with someone who tests positive for the virus also meant that contractual sick pay was payable in these circumstances or whether employers could still limit contractual sick pay to circumstances when the employee themselves was unfit for work.

Due to the huge numbers of people required to self-isolate and therefore entitled to SSP, it was a relief to employers that they could reclaim up to two weeks of SSP for anyone entitled to SSP due to a reason related to coronavirus. However, this concession only applies to the employer once. If the same employee has to isolate again, the employer cannot re-claim the SSP the second time.

Carrying over holiday

The government announced that if leave could not be taken in this holiday year, because of coronavirus, up to 4 weeks could be carried over and taken in the next two years. Our advice was that, wherever possible, leave should still be taken this year as carrying it over can lead to operational issues and increased costs if employees leave their employment without taking accrued leave as they would have to be paid in lieu for the accrued but untaken annual leave.

We eventually established after several weeks of the furlough scheme being in place that the government said that annual leave could be taken when employees are on furlough so, unless an employer’s business was too busy because of coronavirus to permit holiday to be taken this year, there was no reason for holiday not to be taken this year.

Working from home

Many of us have experienced the pros and cons of working from home this year. Not having to commute and being able to move from one meeting to another without having to move away from your desk was certainly more efficient but there is sometimes no substitute for face to face contact.

We advised clients on some issues relating to working from home including how to monitor what work was being undertaken, keeping in regular contact with employees working at home and making sure employees understood the data protection issues of working from home.

Covid-related disciplinaries

Finally on the covid-related front, we advised on many circumstances where employees breached the coronavirus rules and the employers had to take disciplinary action. The two most common circumstances involved employees attending illegal house parties and failing to quarantine upon return from a country on the quarantine list.

Many employees may feel that what they do outside of work is not their employer’s business but if their actions outside of work break the law and therefore put themselves and their colleagues, customers or service users at increased risk, then employers can and should take disciplinary action.

2020 has been quite a year. We’re not going to make too many predictions about what 2021 will involve. We will however write to you in January with a few ideas of what to look out for. In the meantime, have a great Christmas and a Happy New Year.

Employment Law changes – April 2020

In this article, we’re taking a welcome break from thinking about coronavirus to look at changes to employment law which are coming in to force in April 2020. As always, if you have any queries or if we can assist you in any way regarding these changes, please contact us.

In Northern Ireland and Great Britain:

  1. The national minimum wage increases from 1st April as follows:-
Wage band Current rate Rate from 1 April 2020
25 and over £8.21 £8.72
21 to 24 £7.70 £8.20
18 to 20 £6.15 £6.45
Under 18 £4.35 £4.55
Apprentice £3.90 £4.15

2. From 6th April, a “salary premium” will no longer count towards meeting the national minimum wage requirements. For example where a higher hourly rate is paid for working on a bank holiday, then the difference between the higher bank holiday rate, and the flat rate, is discounted for the purposes of calculating whether the individual is receiving the national minimum wage.

3. The normal weekly rate of statutory maternity pay, statutory paternity pay, statutory adoption pay and statutory shared parental pay increases from £148.68 to £151.20.

4. Statutory Sick Pay increases from £94.25 to £95.85 per week.

5. The statutory guarantee payment increases from £29 to £30 per day.

In Northern Ireland only:

1. The maximum amount of “a week’s pay” for the purpose of calculating a redundancy payment or for various awards including the basic or additional award of compensation for unfair dismissal increases from £547 to £560.

2. The limit on amount of compensatory award for unfair dismissal increases from £86,614 to £88,693.

In Great Britain only:

  1. The maximum amount of a week’s pay (used for calculating a redundancy payment and for various awards including the unfair dismissal basic award) increases from £525 to £538 (contrast with Northern Ireland).
  2. The limit on amount of unfair dismissal compensatory award increases from £86,444 to £88,519 (again, contrast with Northern Ireland).
  3. Workers and employees will be entitled to a written statement of employment particulars on day 1 of work.  Previously a written statement of terms had to be provided to employees (not workers) within two months of starting work.
  4. The written statement of employment particulars must contain additional content including how long the job is expected to last, details of benefits given by the employer, specific days and times of work (this will present a challenge for casual/zero hours contracts). If days and hours of work vary, then details of how they will vary should be provided in the statement.
  5. Parental Bereavement Leave will allow employed parents paid leave for a minimum of two weeks on the death of a child aged under 18. The right to Parental Bereavement Leave is a day 1 right – there is no length of service requirement. The right to Parental Bereavement Pay (currently to £151.20 per week or 90% of weekly pay, whichever is lower), is acquired after 26 weeks continuous employment, provided the individual earns at least the lower earnings limit (currently £118 per week). The leave can be taken in a two-week block or two separate weeks, within 56 weeks of the child’s death.  “Parent” includes guardian, foster parent, others with day to day responsibility for the child.
  6. Changes to the Agency Worker Regulations – Currently the regulations contain a “Swedish derogation” which allowed agencies to directly employ agency workers and avoid paying equal pay with permanent employees after 12 weeks.  This is being abolished from April 2020. Agency workers can still be directly employed by an agency, but they will be entitled to equal pay compared to the hirer’s employees after 12 weeks on assignment. Agencies will have to give workers a statement confirming the terms under which they work and confirming their right to equal pay. By 30th April, Agencies must provide written confirmation to those with an existing contract containing a Swedish derogation provision saying that the Swedish derogation provision will no longer apply.
  7. There is a change to Holiday Pay reference period for workers with irregular hours or on zero hour contracts. Instead of a 12 week average, holiday pay will be calculated by reference to an average over 52 weeks of employment, or up to 104 weeks in some cases.

We hope this is helpful. If you have any queries, please contact us.

 

From lay-off to furlough and support for the self-employed

What a tumultuous couple of weeks it has been. As the UK imposes strict measures to try to slow the spread of covid-19, the effect on businesses and jobs has been devestating.

This time last week, all of our discussions with clients were around lay-offs without pay and reducing hours of work in an effort to make necessary savings as a result of a massive slow down or complete halt to business activity.

Then last Friday evening, the Chancellor announced the Coronavirus Job Retention Scheme and everything shifted towards thinking about what it will mean to place an employee on “furlough”.

At the time of writing, there are still some things we can’t be sure of but here are the main things we do know after further information was released on Thursday evening:-

1. All UK employers are eligible. There had been some concern expressed by some of our charity clients that the gov.uk page said “all UK businesses” were eligible but this has been updated to say that all UK employers with a PAYE scheme will be able to access support.

2. The government will reimburse 80% of wage costs (up to £2,500) of employees who would otherwise have been laid off because of the crisis plus employer national insurance and legal minimum employer pension contributions (3%).

3. The government contribution to wage costs can be backdated to 1st March and the scheme will be in operation for at least 3 months.

4. A furloughed worker must do no work while on furlough but may volunteer if this doesn’t amount to making money for or providing services to the employer. This is likely to be useful for charities if employees are willing to volunteer while on furlough.

5. The support will be accessed through a new portal currently being set up by HMRC.

6. The minimum period of furlough will be 3 weeks.

The grants may not be available for several weeks but employers should look into the Coronavirus Business Interruption Loan Scheme. It effectively offers an interest free loan for the first 12 months as the government will cover the interest payments. So, an employer with a cashflow issue can take a loan to cover wages and then, when the Job Retention  Scheme goes live, repay the loan with no interest payable by the employer. This scheme should ensure that employees do not have to go without their wages until the Job Retention Scheme can pay out.

I recorded a Facebook live session on Monday, addressing many of the questions we had been receiving about the Job Retention Scheme and what it will mean to put an employee on furlough. You can view the Facebook live session here. I will broadcast another session at 4pm on Friday to comment on the new details released on Thursday evening. Search for Mark Mason Employment Law on Facebook to watch live or catch up later.

This evening, the Chancellor announced the support that will be made available to the self-employed, More information on that can be found here.

If you have any queries about this article, please get in touch.

Stay safe

Mark