Gordons Legal Employment Update – 11 August 2016

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

Fathers failing to take up shared parental leave

With more than 650,000 babies being born in the UK each year, only a minority of fathers have actually asked for time off to take advantage of the new rules and few parents have taken advantage of shared parental leave, or taken extended time off work to care for their new baby, a study shows this week.

New parents have the option to bring to an end the mother’s maternity leave after the initial two week compulsory leave, choosing how to split up the remaining weeks between both parents.

Shared Parental Leave allows parents to share their 50 weeks’ leave following the birth or adoption of a child as well as up to 39 weeks of statutory shared parental pay, however figures from HMRC highlight that only 3,000 parents took up the offer within the first three months of this year. The 3,000 figure excludes those parents who use shared parental leave but whose employers have neither needed nor chose to reclaim shared parental pay from the Government.

To put the figures into perspective the 3,000 compares with 155,000 mothers taking the standard maternity leave and 52,000 fathers taking paternity leave.

It is believed that the lack of demand to use shared parental leave is due to the lack of awareness from businesses and financial constraints are also a factor which is deterring parents from taking the option of the shared parental leave. Whoever is taking the leave is entitled to receive 90% of their normal salary for the first 6 weeks, this includes the compulsory 2 week period the mother must take after giving birth to the baby. This then drops to a statutory £140 a week for the next 33 weeks. Of course it’s not exactly rocket science because if the father is on a higher wage than the mother then financially it would be better for him to stay in full time employment and allow the mother to take the full maternity leave.

Of course, it may also come down to something of a macho culture with some fathers being ‘too nervous’ to ask their boss for parental leave.

Comment: As an employer it is important to make sure your employees are aware of company policies when it comes to things such as maternity leave and shared parental leave. Ensure you have policies in place that are easily accessible to employees and clearly state what the employees are entitled to in these situations. No employee should feel like they are unable to ask their employer for rights which they are entitled to. If you require any assistance regarding the new laws relating to shared parental leave please do not hesitate to get in contact with a member of the team.

Pokémon Go causing legal headaches

The recent craze of Pokémon Go is causing headaches amongst employers who are increasingly seeking advice on their employees who are facing dismissal due to playing Pokémon Go within office hours.

The game involves a real life treasure hunt, and is designed to get people out of the house. Notifying players on how near by a Pokémon is, players can scan their surroundings through their smartphone and attempt to capture a Pokémon to add to their collection. The game has even gone to the extreme in areas such as Glasgow, in which a shopping centre has introduced Pokémon Go express lanes to avoid disrupting other shoppers.

The worry now is that gamers are getting addicted to the game, and as a result, end up playing the game within the office which would automatically be treated as misconduct.  This is a contemporary example of how new technology can impact on the workplace. Employees are also seeking legal advice as they are facing dismissal from their employer for playing the game.

If you find that your workplace has been infected by the ‘Pokémon virus’, there are effective solutions such as checking that your social media and device policies to ensure that they cover acceptable conduct during working hours.

Comment: Again this reiterates the importance of ensuring that your company policies are up to date and are firmly in place. Surely it comes down to common sense to know that if you are doing something other than work in your work hours, then this can lead to a warning and ultimately a dismissal if the behaviour continues. However there is no harm in making sure your employees are aware of the policies in place and that if they are found playing games during working hours there are disciplinary procedures in place to deal with this.

Procedures and tribunal rules for rejecting a claim

In the recent case of The Trustees of the William Jones’s Schools Foundation v Ms R Parry – an issue was raised with the particulars of the claim form. The employee’s solicitors made a mistake when sending the ET1 form and attached the wrong particulars of claim.

The point was raised with an Employment Judge on the basis that the form could not sensibly be responded to and so the claim should be struck out because then this negates the need for a hearing to see if the claim should be struck out or not. The Employment Judge said the claim could not be rejected on this basis, the employer said this decision was incorrect and took the matter to the Employment Appeal Tribunal. In short, why do we have to have a hearing to strike it out? Surely if it’s wrong then the employer should not be put to expense?

The EAT said no and that this power is only limited to very few specific circumstances and this was not one of them. It said in these circumstances a tribunal had no power to strike out without first hearing from the claimant at a hearing providing an opportunity for the claimant to put forward the reasons why the matter should not be dismissed.

Comment: This case shows the importance of following the correct rules and procedures when dealing with a claim at the Employment Tribunal. Even if a mistake has been made on the claimant’s part then a claim will not just be struck out under the Employment Tribunals Regulations without first giving the claimant a chance to be heard. It underlines the need for expert guidance if you receive a tribunal claim.

National Minimum Wage and National Living Wage

A number of queries received recently have highlighted a small measure of confusion about the National Minimum Wage and the National Living Wage and the dates when these change.

Hopefully what follows will clarify this for everyone.

The situation is now that for employees aged 25 and over it is the National Living Wage which applies. The National Minimum Wage only applies to workers aged under 25.

The National Minimum Wage rates change every October whereas the National Living Wage rate changes every April. This means that from 1 October 2016 wages for those aged 25 years and over, there will be no change until next April. Those under 25 will see a pay rise.

Current rates from 1 April 2016 for the and the National Minimum Wage are:

• Age 25 and over: £7.20
• 21 to 24: £6.70
• 18 to 20: £5.30
• Under 18: £3.87
• Apprentice: £3.30

The new rates from October 2016 will be:

• Age 25 and over: £7.20 (no change)
• 21 to 24: £6.95
• 18 to 20: £5.55
• Under 18: £4.00
• Apprentice: £3.40

Comment: Hopefully this should clear up any confusion but if you do have any further queries regarding either the National Minimum Wage or the National Living Wage please do not hesitate to contact a member of the team.

Sexual Harassment in the workplace

A recent survey by the TUC shows that more than half of the women surveyed say they have been sexually harassed in the workplace and most of them say they do not report it. 1,500 women were surveyed and the results are rather shocking.

The results showed that a third of the women had been subject to unwelcome jokes and a quarter had been subject to unwanted touching. The TUC have said that sexual harassment can take many forms in the work place, to name a few, inappropriate comments and jokes, unwanted touching, hugging or kissing and even demands for sexual favours. To make matters worse the Citizens Advice Bureau says that discrimination takes please when decisions are made about who is chosen for redundancy, development opportunities and training and when people are applying for promotion or flexible working hours.

17% of the women surveyed said it was their manager or someone with direct authority over them who would cause the sexual harassment. The majority of women who said they had been subject to sexual harassment did not tell their employer for reasons such as fear it would affect relationships or career prospects, as well as feeling they would not be taken seriously or they were too embarrassed.

Some of the main findings from the survey are as follows;

• More than one in four (28%) were the subject of comments of a sexual nature about their body or clothes at work
• A fifth (20%) suffered unwanted verbal sexual advances at work
• And around one in eight (12%) experienced unwanted sexual touching or attempts to kiss them at work

Comment: We cannot emphasise enough the need for appropriate equality and diversity training and policies and these statistics, if correct are pretty shocking for any business operating in 2016. For help and assistance and in particular, if you would like to know about the training courses we can offer, please contact a member of our team.

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.