Thursday, 1 September 2016

SEPTEMBER edition employment law newsletter

My periodic newsletter on all things employment law related that I think you should be aware of.
View this email in your browser



Hello  Dear Readers ,

I think I may have mentioned before that I don't just report this material,   I do occasionally actually experience it.  This week I received an e-mail from a member of the public, a genuine cry for help.  The writer informs she has worked in a Greek owned chip-shop/cafĂ© for two years.  She tells me the owner refuses to pay her any holiday as, he says, "part time workers don't get holiday as you are only here part of the time!"    The writer continued with the plight of her colleague, a Bulgarian girl, who is made to work 60 hours a week, and is paid only £2:17 per hour and 8 days holiday!     The owner, I'm informed claims the pay is because he's entitled to deduct rent and "keep" as this girl lives (with others) in the flat over the shop!     Whilst I'm unable to represent members of the public, I did,  of course, explain to her, her rights and put her touch with the appropriate authorities.  The story is, I guess,  that despite everything you and I do to maintain good practice and keep up standards,   that "out there"  ,  there are still bad conditions and unscrupulous employers and vulnerable young people.   I sincerely hope her story works out,   I'll let you know if I hear.
    Read on for details of this months reports and, as always, call me or mail me if you have any concerns or need more information about this edition's content.

Kind regards,     Paul 

 

First The News:

New national minimum wage rates commence from 1st October
The standard rate of the national minimum wage for 21- to 24-year-olds will increase by 3.7% to £6.95 per hour, after the Government accepted recommendations for the new rates from the Low Pay Commission (LPC).
Workers aged between 18 and 20 will see their pay rates rise by 4.7% to £5.55 per hour. The minimum wage for 16- to 17-year-olds increases to £4.00 per hour, a hike of 3.4%, while the apprentice rate increases 3% to £3.40.

I'm currently re-presenting my downloadable pay rates and benefits handy guide.
 


Sports Direct to back-pay warehouse workers

Staff at Sports Direct’s Shirebrook warehouse are to receive back pay totalling around £1 million for non-payment of the national minimum wage.

The union Unite secured the deal, which relates to non-payments going as far back as May 2012, and covers both direct employees and agency workers at the site in Derbyshire.
 The company’s working practices have come under intense scrutiny in recent months, with a recent report by the Department for Business, Innovation and Skills (now the Department for Business, Energy and Industrial Strategy) likening working conditions at Sports Direct to a Victorian workhouse.
 
 

read the full piece on my blog page

 
 

 
Newsflash:  

Fixed-term contracts: five points for
employers


Engaging employees under fixed-term contracts can provide employers with workforce flexibility. Fixed-term employees have an array of rights, in particular under the Fixed-term Employees Regulations. We look at five points that employers should watch out for.

1. When is an employee on a fixed-term contract?Employees are engaged on a fixed-term contract subject to the Fixed-term Employees Regulations where the contract will end automatically in three situations.
The first situation is where the contract ends after a specified period, for example the end of 12 months’ cover for maternity leave.
The second is automatic termination on completion of a task, such as the employee finishing a project.
The third is where the contract ends when a particular event occurs and this could be, for example, the non-renewal of external funding for a post.
Read the full item on my blog page:
 

Sexual harassment at work: 10 myths busted

A TUC report on sexual harassment in the workplace has found that 52% of women have experienced some form of sexual harassment at work. Stephen Simpson sets the record straight on 10 myths about workplace sexual harassment.
Myth 1: “Banter” is not sexual harassment.Fact: Employment lawyers will often hear as a defence to a sexual harassment claim that “it was only banter”.
Time and again tribunals have rejected the notion that a harassment claim can be defended on the basis that sexist remarks were “only banter”.
Key case: In Driskel v Peninsula Business Services, the Employment Appeal Tribunal (EAT) upheld a claim by a female manager that she had been discriminated against by her head of department when she was seeking a promotion.
Remarks from the head of department included that she should wear a short skirt and see-through blouse showing plenty of cleavage if she wanted to be successful during a promotion interview.
The claim was successful despite the head of department thinking that his comments were acceptable banter.

Myth 2: It is not sexual harassment if the victim does not complain.

Fact: Employment tribunals recognise that the employee is normally in an unequal relationship with the harasser, and that it is a natural reaction not to wish to create further conflict.
A lack of action from the victim can often be attributed to a fear of losing employment.
Key case: In Munchkins Restaurant and another v Karmazyn and others, the EAT upheld a claim that a restaurant manager sexually harassed four waitresses.
This was despite the waitresses putting up with the manager’s conduct over a significant period of time, and even initiating talk of a sexual nature as a method of coping with and diffusing his behaviour.
My Comment:    read the full item,  and 8 more cases on my blog page


 

Download of employee pay rates,  NMW, "living wage" and other benefit entitlements:


Additionally:
In you need further in depth help working out what exactly counts as minimum wage,  the DBIS has produced this 55 page guide,

"Calculating the minimum wage"     


Tweet

Forward to Friend

Share
Call Me On 
0779 269 7399


Or Connect with me...

Website
Website

Twitter
Twitter

LinkedIn
LinkedIn

Email
Email

Health& Safety Myths

A light hearted look at some of the idiotic things we hear.

Issue

A Council run library will not let users plug their laptops into electrical outlets because of a risk of tripping or in case of faulty laptop charger plugs.

Panel opinion

The council and library seem to have got their wires well and truly crossed in this case as both the potential problems appear to have been well under control.  Restricting the charging of the laptop can’t be justified on health and safety grounds in these circumstances.

MYTH 
 
  This story started after a school briefly banned children from using cardboard egg boxes to make things, threatening years of Blue Peter tradition. They were concerned that children might catch salmonella.

Within a few days the school realised there was guidance from the County Council and an organisation for teachers called CLEAPSS, making clear that as long as egg boxes and toilet roll centres look clean, there is no reason why they should not be used.

Just another storm in an egg cup…

Sports Direct to back-pay warehouse workers


Staff at Sports Direct’s Shirebrook warehouse are to receive back pay totalling around £1 million for non-payment of the national minimum wage.

The union Unite secured the deal, which relates to non-payments going as far back as May 2012, and covers both direct employees and agency workers at the site in Derbyshire.
The company’s working practices have come under intense scrutiny in recent months, with a recent report by the Department for Business, Innovation and Skills (now the Department for Business, Energy and Industrial Strategy) likening working conditions at Sports Direct to a Victorian workhouse.
During a select committee inquiry in June, CEO Mike Ashley admitted that his company had broken the law by failing to pay all staff the minimum wage.
An investigation by The Guardian found that managers were holding staff back at the end of their shift to be searched by security, effectively meaning they would not receive the full minimum wage for their time at work.
Unite estimates that the back payments could be worth up to £1,000 for some workers, and those directly employed by Sports Direct and through the employment agency The Best Connection are expected to start receiving the pay in full towards the end of August.
However, as many 1,700 Transline agency workers at the site may only initially receive half the back pay they are owed because of the agency’s refusal to honour its commitments from when it took over from Blue Arrow at Shirebrook two years ago, Unite added.
Unite assistant general secretary Steve Turner said: “This is a significant victory in Unite’s ongoing campaign to secure justice and dignity at work for workers at Sports Direct and demonstrates the importance of modern trade unions in Britain today.
“But investors and customers alike should not be fooled into thinking that everything is now rosy at Sports Direct’s Shirebrook warehouse. Transline, one of the employment agencies involved, is disgracefully still trying to short-change workers by seeking to duck its responsibilities.
“Deep-seated problems still remain regarding the use of agency workers with the behaviour of both Transline and The Best Connection further jeopardising Sports Direct’s battered reputation.
“Sports Direct needs to make Transline face up to its responsibilities and seriously confront endemic abuses within its employment agencies.”
Transline and The Best Connection supply more than 3,000 agency workers to work for Sports Direct in its Shirebrook warehouse. Both agencies were warned of being in contempt of parliament and lying when the select committee published its recent report on the company’s working practices.
Turner added: “Mike Ashley and the Sports Direct board should be under no illusions. The charge of ‘Victorian’ work practices will continue to weigh heavily on Sports Direct until it moves long-standing agency workers onto direct, permanent contracts and weans itself off its reliance upon zero hours contracts.”
He said that the union would continue to engage with Sports Direct “so that we can assist it in meeting Mike Ashley’s ambition of being an exemplar employer”.

My Comment:    Whilst, as employers, we all look to controlling costs,   this is an extreme example of cost analysis,   which has caught up with the employer, and not only hit the coffers but the reputation as well,    somewhat belies the myth that "there's no such thing as bad publicity".    This coverage curtesy of Personnel Today to whom,  my continuing thanks

Fixed-term contracts: five points for employers


Engaging employees under fixed-term contracts can provide employers with workforce flexibility. Fixed-term employees have an array of rights, in particular under the Fixed-term Employees Regulations. We look at five points that employers should watch out for.

1. When is an employee on a fixed-term contract?

Employees are engaged on a fixed-term contract subject to the Fixed-term Employees Regulations where the contract will end automatically in three situations.
The first situation is where the contract ends after a specified period, for example the end of 12 months’ cover for maternity leave.
The second is automatic termination on completion of a task, such as the employee finishing a project.
The third is where the contract ends when a particular event occurs and this could be, for example, the non-renewal of external funding for a post.

2. Less favourable treatment across contracts

An employee may be able to bring, without being time barred, a claim for less favourable treatment contrary to the Fixed-term Employees Regulations in respect of earlier fixed-term contracts as well as the last. The claim will be possible if the employer’s actions amount to “a series of similar acts” that continue across the individual fixed-term contracts, even where they are separated by periods of time.

3. Exclusions from scope of Regulations

In addition to the exclusion of workers who are not employees, the Fixed-term Employees Regulations do not apply to agency workers, apprentices and work experience placements.

4. Permanent status

An employee who has been continuously employed on successive fixed-term contracts for four years or more, will automatically become a permanent employee, unless the employer can justify the renewals. The courts have indicated that is difficult for the employer to justify renewal where it has a permanent need for the employee. Acceptable justifications have included the use of successive fixed-term contracts to provide cover for absent employees and also to enable individuals to resume their professional career at the end of the contracts.

5. Termination

The expiry of a fixed-term contract without renewal is deemed to be a dismissal, even though the employer and employee agree at the outset when the contract will automatically terminate. This rule means that an employee with at least two years’ service can claim unfair dismissal, so the employer must ensure that the dismissal is fair. The employee may also be entitled to statutory redundancy pay.

My Comment:  The subject of fixed term contracts has been a hot topic over the last couple of years, and no satisfactory decision as to their effectiveness/reasonableness has been arrived at.  The trouble began when some large corporations starting abusing the use of them.   This article from those nice folk at Personnel  Today is helpful in understanding the topic .

Sexual harassment at work: 10 myths busted

A TUC report on sexual harassment in the workplace has found that 52% of women have experienced some form of sexual harassment at work. Stephen Simpson sets the record straight on 10 myths about workplace sexual harassment.

Myth 1: “Banter” is not sexual harassment.

Fact: Employment lawyers will often hear as a defence to a sexual harassment claim that “it was only banter”.
Time and again tribunals have rejected the notion that a harassment claim can be defended on the basis that sexist remarks were “only banter”.
Key case: In Driskel v Peninsula Business Services, the Employment Appeal Tribunal (EAT) upheld a claim by a female manager that she had been discriminated against by her head of department when she was seeking a promotion.
Remarks from the head of department included that she should wear a short skirt and see-through blouse showing plenty of cleavage if she wanted to be successful during a promotion interview.
The claim was successful despite the head of department thinking that his comments were acceptable banter.

Myth 2: It is not sexual harassment if the victim does not complain.

Fact: Employment tribunals recognise that the employee is normally in an unequal relationship with the harasser, and that it is a natural reaction not to wish to create further conflict.
A lack of action from the victim can often be attributed to a fear of losing employment.
Key case: In Munchkins Restaurant and another v Karmazyn and others, the EAT upheld a claim that a restaurant manager sexually harassed four waitresses.
This was despite the waitresses putting up with the manager’s conduct over a significant period of time, and even initiating talk of a sexual nature as a method of coping with and diffusing his behaviour.

Myth 3: A single comment that is not repeated cannot be sexual harassment.

Fact: It is well established from case law that a single act can fall within the definition of unwanted conduct under the Equality Act 2010.
For example, no employment tribunal in the land would have any sympathy for a harasser who is dismissed after committing a one-off serious act of sexual misconduct, even if further harassment does not follow.
Key case: In Insitu Cleaning Co Ltd and another v Heads, the EAT upheld a tribunal’s finding that a woman had been sexually discriminated against when a manager said to her “hiya, big tits”.
The EAT held that the tribunal was entitled to conclude that the one incident was sufficiently serious to amount to sexual harassment.

Myth 4: A benign motive is a defence against a sexual harassment allegation.

Sexual harassment

Podcast: Sexual harassment in the workplace Employment law editors Susan Dennehy and Stephen Simpson discuss the key principles protecting employees from sexual harassment in the workplace.
Fact: The motive of the “harasser” is irrelevant in sexual harassment claims. The key issue will be the effect on the person who is on the receiving end of the behaviour.
Key case: In Craddock v Fontoura t/a Countyclean, a business owner was found to have committed harassment after he repeatedly suggested that a male employee should form a relationship with a particular female colleague.
The employment tribunal found that the business owners attempts to “play cupid” between staff constituted sexual harassment, despite his apparently benign motive.

Myth 5: A compliment cannot be sexual harassment.

Fact: It is sometimes commented that a man who compliments a woman on her appearance at work cannot be committing sexual harassment.
While an innocent remark between colleagues who know each other well is unlikely to constitute harassment, tribunals will look at the context in which a remark is made.
In many cases, comments about a woman’s appearance will be deemed to be inappropriate in the workplace.
Key case: In Urbanska-Kopowska v McIlroy and another t/a Mac’s Quality Foods, the tribunal awarded £65,000 to a Polish woman who was sexually harassed by another worker.
Allegations included that the worker said to her that “she was his type and he would eventually have her” and that she had a “nice bottom”.

Myth 6: Sexual harassment always involves a physical act.

Fact: The definition of sexual harassment under the Equality Act is exceptionally wide.
For example, it could involve the display of pornographic material (such as pictures of naked women on a computer) or leering at a woman in a manner that is overtly sexual.
Key case: In Moonsar v Fiveways Express Transport Ltd, the EAT held that male employees viewing pornographic images on the internet in an office where a female colleague was present constituted sexual harassment.

Myth 7: An allegation of sexual harassment is considered only from the viewpoint of the victim.

Sexual harassment: examples for line managers

Telling jokes about women or making derogatory sexist remarks.
The display of sexually explicit material on computer screens or in calendars.
Leering at a woman in a manner that is overtly sexual.
Physically touching someone in a sexual manner where such conduct is not welcome.
Making sexual suggestions or persisting with sexual advances after it has been made clear that such approaches are unwelcome.
Fact: Tribunals will take into account how a complainant perceives the actions that have led to a harassment claim.
However, tribunals will also take into account whether or not it was reasonable for the conduct to have had the effect of violating dignity or creating an offensive environment.
An employer could have a defence if it thinks that an employee is being “over-sensitive”.
For example, overhearing a sexual swearword in a work environment where swearing is commonplace might not be considered sexual harassment.
Key case: In religious discrimination case Heafield v Times Newspaper Ltd, the EAT held that there was no harassment when an employee took offence at a colleague’s comment using an expletive when referring to the Pope.
In the context in which the remark was made, it could not reasonably be viewed as harassment.

Myth 8: A subordinate cannot sexually harass a manager.

Fact: While sexual harassment often involves the abuse of power by a senior manager over an employee, there is nothing to stop an employee, or a group of employees, from being liable for harassing a manager.
For example, sexual harassment could occur where a female manager is managing mostly men in a male-dominated workplace.
Key case: In Fairbank v Royal Mail Group Ltd, the employment tribunal upheld a sexual harassment claim from the only female manager in a predominantly male environment.
The tribunal found that the male staff carried out a campaign of bullying the female manager, including one employee saying to her that “the only reason you have got this job is because you have tits and a fanny”.

Myth 9: Only the person towards whom the behaviour is directed can bring a sexual harassment claim.

Fact: It is perfectly possible for someone to claim sexual harassment when the offending remark or action is not directed at that person.

For example, a woman who overhears a sexist remark could bring a sex discrimination case, even if the perpetrator does not realise that she is listening.
Key case: In Mrozinski v Q Medical Technologies Ltd, the employment tribunal had the unusual task of deciding whether or not a female employee was sexually harassed when she witnessed her male line manager and another man re-enacting a scene from the film Ghost at an office party.
While the tribunal found that this incident was not harassment, the employer was ordered to pay the claimant £2,000 for several other incidents that displayed her line manager’s “predilection for innuendo”.

Myth 10: Sexual harassment can be committed only by a man against a woman.

Fact: Sexual harassment is traditionally thought of as a man’s unwanted actions towards a woman. But there is nothing to stop a man claiming harassment against a woman, or an individual claiming to have been harassed by someone of the same sex.
Key case: In Basile v Royal College of General Practitioners and others, the employment tribunal held that a man discriminated against another man with sexual comments and gestures, not all of which were directed at the claimant.
These included the greeting “how’s it hanging?” and the witnessing of sexual hand gestures.

My Comment:  I have covered this topic previously,   and it continues to astound me the stupidity of some employees in (apparently) not being aware of the capacity to give offence in todays day and age.  As always my grateful thanks to Personnel Today for their source material.