eBrief: Gordons Legal Employment Update – 6 October 2016

Thursday 6th October 2016

Here it is, the eagerly anticipated Gordons’ Employment Law update: 

 Mental Health and Sick Leave 

The recent Employment Appeal Tribunal (EAT) case of Private Medicine Intermediaries Ltd and Others v Hodkinson highlights the dangers of contacting employees on sick leave with mental health problems.

The Claimant, Miss Hodkinson was employed by Private Medicine Intermediaries as Director of Sales for Managed Care and Occupational Health.  Following alleged bullying and intimidation by her work colleagues, the Claimant commenced a period of absence due to work related depression and anxiety.

During this period, the CEO of the Defendant sent Miss Hodkinson two letters.  The first created no problems, although Miss Hodkinson replied that she was in “no fit state to communicate without breaking down.” 

At this point, the CEO should have respected the Claimant’s wishes.  Instead, he proceeded to send a further letter, this time detailing areas of concern at work and proposing a meeting to discuss her work performance.  The CEO was fully aware of Miss Hodkinson’s reason of absence and further, such ‘concerns’ had either been dealt with in the past or were not of an urgent nature.

Consequently, Miss Hodkinson resigned and brought a number of claims against her former employer.  The original Employment Tribunal found in favour of Miss Hodkinson for discrimination, harassment and constructive dismissal.  However, the EAT overturned these claims but upheld that she had been constructively dismissed on the basis that the letter had been directly causative of her resignation.

Comment: This case highlights the difficulties encountered by employers when communicating with employees on sick leave by reason of a mental health condition. Allegations can be made as a result of insufficient contact causing an employee to feel isolated.  Conversely, allegations can be made, as in this case, as a result of too much contact causing an employee to feel bullied or harassed.  The key is to consider the purpose and urgency of the correspondence and to weigh this against the employee’s condition and any preference expressed directly or through medical evidence.  A Tribunal will sympathise with an employer that has taken this analytical approach to its communications and so keeping a record of the decision to contact the employee and the reasons for it is advisable.

Review of workers’ rights as a result of Brexit

On the back of June’s referendum, Theresa May has hired Tony Blair’s former policy boss to review current workers’ rights.  The review is expected to take six months and will address key themes such as security, pay and the employment rights of ordinary working people.  Its aim is to establish whether current employment law can handle the increasing number of non-standard forms of employment and what workers’ rights and practices will be as a result of Brexit.  

Comment: The announcement of this review is timely considering the numerous employment law issues that have arisen due to the modern day ‘gig economy’.  The employment ‘status’ (worker/employee/self-employed) of individuals predominately determines the legal rights that they are entitled to.  Relatively new and flexible working arrangements, such as zero-hour contracts and thinly-veiled ‘independent’ contractors, have looked to side-step worker’s proper status in order to avoid affording individuals protections.  In light of potentially turbulent times ahead post-actual Brexit, this review could bring in positive changes to the most vulnerable in employment.

Justification for specific treatment

In the case of Buchanan v Commissioner of Police of the Metropolis, the Employment Appeal Tribunal held that the alleged discriminator must justify the specific treatment.

The Claimant was a police motorcyclist who had an accident at work and suffered from post-traumatic stress disorder.  He was subject to the MPS’s Unsatisfactory Performance Process (UPP).  The Claimant complained of discrimination arising from his disability in his treatment by the MPS as a result of the operation of that procedure.  The MPS argues that the UPP was a proportionate means of achieving various legitimate aims, and the tribunal should therefore regard the treatment as justified.  The EAT held that the demands the MPS made were not required under the UPP or the Police (Performance) Regulations 2012, and the MPS should have therefore been required to justify the specific treatment.

Comment: Where a claim for discrimination arises under s.15 Equality Act 2010, whether the treatment, which is the direct result of applying a general PCP, is justified will usually depend on whether the general PCP itself is justified.  However, where the underlying PCP allows for an assessment of the response on an individual basis according to the circumstances, it is the particular treatment which must be justified, not just the PCP.  In short, if you are considering a tailored response to an individual situation you need to ensure that the treatment is justifiable if there is a chance it could be seen as discriminatory, which of course, it may well be if it arises from a disability.  Whilst we hesitate to say this: take advice!

Paternity leave deemed sexual discrimination

A father has been awarded over £28,000 after his employer’s paternity leave pay policy was deemed to amount to sexual discrimination.

David Snell and his wife both worked for Network Rail and intended to split their designated 39 weeks of parental leave (his wife taking 27 weeks, before David took the last 12 weeks). However, despite his wife being entitled to 26 weeks’ full pay and one week of statutory maternity pay; David was only entitled to statutory paternity pay during his 12 weeks’ leave. He was also withdrawn from the company pension scheme during this period.

After raising an unsuccessful grievance to Network rail, on the basis that their parental pay was discriminatory towards men, Mr Snell successfully took the claim to tribunal.  On finding in Mr Snell’s favour, Judge Frances Eccles stated that Network Rail’s policy ‘put the claimant at a particular disadvantage as a man when compared with women during periods of shared parental leave.’

Network Rail have since reduced women’s maternity leave pay to the statutory minimum in order to ‘ensure fairness.’

Comment: In credit to Network Rail, the legal minimum obligation is to pay statutory parental pay for a period of 39 weeks. The company’s ‘Family Friendly Policy’ offered up to 52 weeks of shared parental leave, whilst paying (female) employees full pay for the first six months.  Although this case is a victory in terms of sex discrimination, Network Rail’s decision to remove the previous full pay allowance can hardly be seen as a positive move for parental pay – perhaps not the most progressive move.  

Legal Updates

National Minimum Wage rates

The new rates are now effective:

  •  £3.40 an hour for apprentices;
  • £4.00 per hour for those aged 16 to 17;
  • £5.55 per hour for those aged 18 to 20;
  • £6.95 an hour for workers aged 21 and over; and
  • £6.00 per day for accommodation offset.

It is anticipated that the national living wage rate of £7.20 per hour for all workers aged 25 and above will remain the same until April 2017.

Employer’s duties in relation to pensions

Under the auto-enrolment regime, defined contribution schemes require employers and workers to pay a minimum level of contributions to the scheme.  Following the announcement in the government’s Autumn Statement, that it would push back the two phases of minimum contribution rate increases by six months to align with the tax year, the Employers’ Duties (Implementation) Regulations 2010 are amended.  The two transitional periods specified will now expire on 5 April 2018 and 5 April respectively.  The changes came into force on 1 October 2016.

…And finally, talking of updates…

Are there any places left on the Gordons Autumn Employment Law Update Seminar on the 18 October? The answer is ‘yes’, there are a few. We have received a fantastic response to this event and the advantage of having a sizeable venue is that we still have some flexibility on numbers.  But either way don’t delay if you would like to join us at the event.

Click here for sign up information.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team, on the following number 0113 227 0100.