Gordons Legal Employment Update – 2nd September 2016

Please find below details of recent Employment Law updates and news from the past week or so.

Maternity discrimination in the workplace

There has been a call for increased safeguards for mothers who are expecting within the workplace. A recent report suggests that workplace discrimination against expectant mothers is as high as 77% compared to 45% 10 years ago. The Women and Equalities Select Committee has urged for the government to publish plans to address this issue and for changes to be made so that women are not forced out of work due to pregnancy.

Figures have almost doubled within the last decade. The rising number of new mothers bringing cases in order to tackle discrimination has resulted in a call to cut the substantial legal fee of £1,200 for going to the Employment Tribunal to fight their case.

Frances O’Grady the general secretary of the Trades Union Congress (TUC) states “pregnancy discrimination forces tens of thousands of women out of their jobs every year. It is not just confined to a few workplaces, it is happening on an industrial scale”. The contention is that this shows the scale of which discrimination is occurring, and how action must be taken to protect women against maternity discrimination.

Whether even more legislation is the answer, I’m not at all sure. We have an enormous amount already. I find the report surprising in its findings given that the level of queries and claims we deal with in this area has remained constant but if anything, has diminished over the years. That said, the report says 11% of women reported being either dismissed, made compulsorily redundant when others in their workplace were not, or treated so poorly they felt they had to leave their job, and if that that is correct then it is unacceptable.

The report suggests there is a need to extend the right for paid time off to attend antenatal appointments and a doubling of the time limit on discrimination cases from 3 to 6 months but also suggests that women on maternity leave should be totally protected from dismissal for reasons such as redundancy for the entire duration and beyond. Surely this cannot be right: granted, selection for redundancy which is in any way connected with pregnancy or maternity leave is an absolute no-no, but to be totally protected from the risk of redundancy which all other workers may face may well be going too far, as in the extreme, it could arguably lead to an employer having to lose employees who are at work and retain those who are on leave thereby not having anyone left to do the work – can this be right?

Comment: A political hot potato perhaps, which is unlikely to curry favour with smaller employers who already struggle to cope with the wealth of legislation we have in place. However if the Select Committee’s findings gain traction then there will be more regulation to come.

British Chambers of Commerce says minimum wage plan needs Brexit rethink

The British Chambers of Commerce (BCC) has warned that the government must abandon their approach towards the National Minimum Wage policy following the Brexit vote. They have warned that the government’s approach to setting the National Living Wage could become “unaffordable” following the EU referendum.

The government has put in place plans to raise the National Living Wage to around £9 by 2020 and the BCC are trying to urge the government to rethink their plans regarding this.

Currently, the National Living Wage starts at £7.20 for over-25s. The BCC believes that the minimum wage should only rise by 2.4pc to £7.39 next April. The BCC states that government policies which have been introduced such as cuts to corporation tax and extending employment allowances, do not offset the burden. It is thought that a high minimum wage could cause higher unemployment, increased prices and possible bankruptcies particularly for smaller businesses. The BCC have said determining the increases in the National Minimum Wage and the National Living Wage during this uncertain time requires care and consideration.

Comment: the vote to leave the EU will no doubt continue to generate some unfavourable and/or unwelcome ramifications depending on whether you are an employer or employee. Only time will tell in respect of this report to see if the government has to u-turn on their proposals.

Sacked over Facebook posts

Reports have emerged this week regarding a disability benefits assessor who has been suspended after posting abusive comments about claimants on Facebook. The posts were discovered by a claimant who had been turned down for personal independence payments (PIP). The claimant believed the report which was carried out by the assessor had a number of false claims in it and so she looked her up on Facebook and discovered the abusive posts.

The nurse, who worked for Capita, wrote a number of posts which were seen as attacking disabled people and date back to 2014. The nurse has recently been sacked by Capita, as her posts were clearly unacceptable.

From an employment law perspective this report contains no real surprises.

Comment: From an employment law perspective this report contains no real surprises but simply serves to emphasise the variety of issues employers have to deal with flowing from the use of social media by employees both inside and outside of work.

When an employee is moved to a lesser role, a reasonable adjustment for a disabled employee could extend to continuing to pay their higher salary.

This case has potentially enormous implications:

In the case of G4S Cash Solutions (UK) Ltd v Powell, the EAT found it was objectively reasonable for the Respondent to have made a reasonable adjustment to protect the Claimant’s pay to counter his disadvantage as a disabled employee. In many cases the measures which it will be reasonable for an employer to have to take will involve a cost to the employer.

Here, the Claimant had been moved from an engineering role maintaining cash machines to a less skilled key runner role, as a result of his disability.  The Claimant’s pay was initially protected but then he was faced with accepting a pay reduction by around 10% or his dismissal. The Claimant was dismissed when he refused the pay cut. The Employment Tribunal found the dismissal to be discriminatory and unfair, and that the reasonable adjustments required extended to maintaining the Claimant’s former pay in his new role.

The EAT did not expect that requiring employers to make up pay or protect the employee’s pay for a significant period would be common for tribunals and suggested that “in a different situation” such an adjustment may not constitute a reasonable adjustment….thanks for the clarity! What this confirms is the need for a very considered decision in this type of case which will very likely benefit from expert legal advice.

Comment: With the majority of tribunal cases, each case will be decided on the specifics of the case itself and the circumstances involved. This decision is however useful to note if you have employees changing roles within your company where the reason for the change is an adjustment to cater for a disability.

The referendum rift: belief discrimination: avoiding fallout from an unsettled workforce

On the back of June’s referendum, it has been reported that employees who voted “leave” are facing “cultural bullying” in the workplace, harassment and hostile remarks for pro EU colleagues.  This type of behaviour has been identified as “cultural bullying” due to the divide between colleagues’ views. Some employees have taken legal action against their employers as they believe they are suffering discrimination or harassment as a result of their philosophical belief.  The employees will need to be able to prove that the conduct they are facing is as a result of their political beliefs, which falls within the Equality Act 2010.

If it is right that an employee is suffering mistreatment at work at the hands of his or her colleagues or bosses this may lead to a claim of bullying. Whilst there is no free-standing claim for bullying in the tribunals, those with more than 2 years’ service could claim constructive unfair dismissal if the extent of the bullying became too much to bear such that they decided to leave because of it. It is worth bearing in mind that where employers themselves expressed forthright views one way or the other pre-referendum, then unfair treatment of employees holding contrary views might be rather easier to prove.

Comment: So what do we do now? Employers should take reasonable steps to prevent any of their employees from bullying, harassing or making hostile remarks for whatever reason and impose disciplinary sanctions for those who transgress. As a minimum employers need to ensure they have a written equal opportunities policy in place and ideally should provide equal opportunities training to employees, without which, such policies are likely to be viewed as a waste of time.

Company car fuel changes

The Government have released new advisory fuel rates for employers with company car schemes. The company car advisory fuel rates only apply where employers either;

• Reimburse employees for business travel in their company cars
• Require employees to repay the cost of fuel used for private travel

The Government has published the latest rates and they will come into force from 1st September 2016. Employers are able to use the new or the previous rates. The benefit of company car schemes is that if the rate paid per mile for business travel is not higher than the advisory rate, which the government puts in place, HMRC will accept that there is no taxable profit and no Class 1 National Insurance Contributions liability.

Some companies however prefer to set their own rates and not follow the advisory rate if that works better for their own company needs, for example where the cars in the company fleet are fuel efficient employers may prefer to reimburse at lower rates and if lower rates ae used employees driving the company cars are not entitled to use the advisory rates.

If you require any further information on any of the above developments please do not hesitate to get in contact with any member of the employment team, on 0113 227 0100.