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Entries in Employment Rights (15)

Monday
Apr232018

Shared Parental Leave

Shared parental leave was first introduced in April 2015, but there has been a relatively low uptake. Recent cases have caused confusion over whether shared parental pay should be matched to maternity pay to avoid discrimination.

On 11 April 2018 The Employment Appeal Tribunal (EAT) handed down a judgment in the case of Capita Customer Management Limited v Mr Ali, concluding that a failure to enhance shared parental pay to match maternity pay does not amount to sex discrimination.  Employers can now breathe a sigh of relief that existing practices remain lawful.

Facts of the case

When Mr Ali's daughter was born in 2016, he took two weeks' paid paternity leave.  He informed Capita that his wife had been diagnosed with post-natal depression and had been medically advised to return to work to assist her recovery. Mr Ali was informed by Capita that he could take shared parental leave but he would only be entitled to statutory pay.  Mr Ali discussed this with his female colleagues who were entitled to an enhanced maternity pay scheme that entitled them to 14 weeks' basic pay followed by 25 weeks' statutory maternity pay.  As a male employee, Mr Ali's entitlement was two weeks' paternity leave on full pay and up to 26 weeks' additional paternity leave which "may or may not be paid".  On this basis, Mr Ali raised a grievance to say that it was discriminatory that men were paid statutory pay for shared parental leave whilst mothers on maternity leave received enhanced maternity pay. When his grievance was not supported, he pursued claims in the tribunal for sex discrimination.

First instance decision of the Tribunal

The first instance decision was discussed at our Annual Employment Law Update in September 2017. At that time the employment tribunal upheld Mr Ali's complaint of direct sex discrimination. The Tribunal agreed that Mr Ali could compare himself with a female employee who would have the benefit of full pay for the full 14 weeks. The denial of full pay amounted to less favourable treatment because of his sex.

Employment Tribunal’s decision on appeal

On 11 April 2018 the EAT overturned the Tribunal’s decision. It concluded that the Tribunal had made an error of law in finding that the circumstances of the father were comparable to a woman who had recently given birth. The primary purpose of maternity leave and pay is the health and wellbeing of the mother.  This differs to the purpose of parental leave which is for parents to care for their children. The EAT concluded that the Tribunal had applied the wrong comparator. The correct comparator was a woman on shared parental leave. Shared parental pay is available to men and women on equal terms; with no discrimination between the sexes (in ability to take such leave or in the payment).

Contact Us

If you have any questions on employment law matters please contact Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453).    Selene Holden (seleneholden@greene-greene.com ~ 01284 717436) or Greg Jones (gregjones@greene-greene.com ~ 01284 717446) or for more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

 

Thursday
Dec072017

Employment status – raising the stakes!

On 29 November 2017, the European Court of Justice (ECJ) delivered a judgment in the case of King v The Sash Window Workshop, which concluded that a worker was entitled to backdated holiday pay from the start of his appointment.  

Mr King had worked on a self-employed, commission-only contract. Upon his retirement Mr King sought to recover payment for annual leave from the start of his appointment, a total of 13 years.  

Mr King was determined to be a worker. The Court of Appeal sought a preliminary ruling from the ECJ. The ECJ found that there should be no limitation imposed on the right of workers to claim backdated holiday pay where they have been denied the right to take or be paid for annual leave.  The ECJ judgment will now be considered by the Court of Appeal. 

The ECJ observed that it was beyond Mr King’s control that he was not able to exercise his right to paid annual leave before his retirement.  This situation was distinguished from workers who have accumulated entitlement to paid annual leave due to sickness absence (which is limited to a carry-over period of 15 months). Interestingly, the ECJ commented that an employer that does not allow a worker to exercise his right to paid annual leave must bear the consequences.

This decision is going to be particularly relevant to those in the gig economy or those where their employment status has been wrongly labelled and they have been denied the ability to take holiday.

This could open the flood-gates to lengthy backdated holiday pay claims for those in the gig economy and is another blow to the likes of Uber.  The Deduction from Wages (Limitation) Regulations 2014, which limits any claim for unlawful deduction from wages (including holiday pay) to two years of back pay, is likely to be challenged in light of this ECJ ruling.

Employers who are concerned about the employment status of their workforce need to re-assess the potential exposure to the risk of lengthy backdated holiday pay claims.

Contact Us

If you have any questions on employment status or employment law generally please contact Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453) or Greg Jones  (gregjones@greene-greene.com ~ 01284 717 446).

For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

Thursday
Nov232017

What does the 2017 Autumn Budget mean for Employers and Employees?

The Chancellor delivered his 2017 Autumn Budget speech on Wednesday 22 November. On the same day, the full Budget report was published by the Government.

Employment lawyer, Greg Jones talks through the key points that will be of interest to employers and employees as summarised by the Employment Lawyers Association.

Wages

The Government has confirmed that it has accepted the recommendations of the Low Pay Commission (LPC) for increases to the national living wage (NLW) and the national minimum wage (NMW). Accordingly, from April 2018 the Government will increase the NLW, which applies to workers aged 25 and over, by 4.4% from £7.50 to £7.83. The LPC has estimated that this will benefit over 2 million workers. At the same time, the NMW rates will be increased as follows:

•             from £7.05 to £7.38 for 21 to 24 year olds;

•             from £5.60 to £5.90 for 18 to 20 year olds;

•             from £4.05 to £4.20 for 16 and 17 year olds; and

•             from £3.50 to £3.70 for apprentices.

Taxation

In accordance with its commitment to raise the personal allowance (PA) to £12,500 and the higher rate threshold (HRT) to £50,000 by 2020, the Government has announced that in the 2018/19 tax year the PA and HRT will be increased to £11,850 and £46,350 respectively. The Government has also announced that, with effect from April 2018, there will be no benefit in kind charges on electricity that employers provide to charge employees’ electric vehicles. The report further details a number of changes the Government will make to the taxation of employee expenses following a call for evidence that was published in March 2017.

Employment status

The Government has stated that it will publish a discussion paper as part of its response to the Taylor review of employment practices, which will explore the case and options for longer-term reform to make employment status tests for both employment rights and tax clearer. It has acknowledged that this is an important and complex issue, and it will therefore work with stakeholders to ensure that any potential changes are considered carefully.

Link to Budget report:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/661583/autumn_budget_2017_print.pdf

If you have any questions regarding employment matters please contact Greg Jones (gregjones@greene-greene.com ~ 01284 717446) or  Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453). For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

Friday
Oct202017

Employment Tribunal Fee refund scheme launched

The Ministry of Justice and HM Courts & Tribunals Service have announced that the first wave of people eligible for employment tribunal fee refunds will be able to apply from today.

This follows an appeal hearing by Unison and the subsequent ruling by the Supreme Court in July where they declared that “fees for those bringing employment tribunal claims were ruled to be unlawful and therefore nullified.”

During this first stage of the phased implementation up to around 1,000 people will be contacted and given the chance to complete applications before the full scheme is opened up in the coming weeks.

As well as being refunded their original fee, successful applicants to the scheme will also be paid interest of 0.5%, calculated from the date of the original payment up until the refund date.

It is claimed that the opening phase will last for around 4 weeks. Further details of the scheme, including details of how it can be accessed, will be made available when the scheme is rolled out fully.

If you have any questions regarding employment tribunals or any other employment matter please contact Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453) or Greg Jones (gregjones@greene-greene.com ~ 01284 717446). For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

Wednesday
Jul262017

Employment tribunal fees unlawful

   The Supreme Court has declared this morning that fees for those bringing employment tribunal claims have been ruled unlawful and will be nullified. As a result, the government will possibly have to repay up to £32m to claimants in respect of fees paid between 2013 and now.

The decision follows the appeal by the trade union Unison who argued that the fees prevented many workers from getting ‘access to justice’.  The Supreme Court referred to the Government’s review on the impact of fees (discussed in our previous blog on 1 February 2017).  There has been ‘a sharp, significant and sustained fall’ ‘in the number of employment tribunal claims since the introduction of fees representing a reduction of 66–70% of cases. The proportion of claimants receiving fee remission was also lower than the government had anticipated. On this evidence the Court concluded that many people found the fees unaffordable and had been denied access to justice.

With fees ranging between £390 (Type A) and £1,200 (Type B) for a case to be heard at a hearing, the Supreme Court also concluded that it was indirectly discriminatory to charge higher fees for type ‘B’ claims (which include discrimination claims) than type ‘A’ claims (such as unpaid wages). It was found that a higher proportion of women bring Type B claims than Type A and that they were placed at a particular disadvantage compared to men; and it could not be objectively justified why Type B claims were more expensive.

What happens next?

  • Anyone lodging a tribunal claim will not be required to pay the tribunal fees. Those who have paid the fees (be it Claimants or Respondents) will have to watch this space in terms of how to reclaim fees (if possible).
  • Whether the number of claims will rise as sharply as they fell on the introduction of the fees regime is something Employers, ACAS and the Employment Tribunals will be watching very carefully. If they do, significant resources will need to be put back into the system to avoid a further backlog of claims.  
  • The Court’s decision does not prohibit the government imposing fees in the future as the decision relates to the level of fees being unlawful and preventing access to justice. Further consultation on this is likely to be necessary before any decision is taken.
  • Immediate attention is required by the Employment Tribunals Service for reprogramming the online claim form system and for them to rewrite the tribunal rules.
  • There is also the question concerning the amount of people who chose not to bring a claim due to the cost of the fees and whether they will seek to lodge their claims out of time. Although the answer the question is unknown, anyone in this position will need to act immediately to avoid prejudicing their chances.

If you have any questions regarding employment tribunals or any other employment matter please contact Greg Jones (gregjones@greene-greene.com ~ 01284 717446) or Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453).

For more information on the services offered by Greene & Greene Solicitors please visit http://www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

Tuesday
Jul252017

TUPE: a cautionary tale of a business sale

In their latest blog, Employment law specialists, Angharad Ellis Owen and Greg Jones talk about the rights and obligations where employees transfer under TUPE.

You may have first-hand experience of business sales and having to comply with TUPE; alternatively, you may have only heard the acronym and wondered what it was all about!  TUPE refers to the Transfer of Undertakings (Protection of Employment) Regulations 2006; the purpose of which is to protect employees' rights on a business sale. TUPE essentially means that a buyer of a business steps into the shoes of the seller. A buyer therefore needs to know what it is they are in fact acquiring.  

What transfers under TUPE?

Where employees transfer under TUPE, various rights and obligations, powers and liabilities transfer with them to the buyer. For example, this includes:

  • the employees’ continuity of service;
  • the contracts of employment, including all terms and conditions of employment such as pay, commission and bonus entitlements, holidays and sick pay provisions; and
  • liability for the seller’s acts and omissions in respect of the newly acquired employees.

 

How do you know what you’re inheriting?

TUPE requires the seller to provide the buyer with ‘employee liability information’ (ELI) 28 days before the business transfer. The ELI must contain the information that an employer is obliged by law to provide its employees when starting in post; this includes detail as to the employee’s rate and method of calculating pay.

The Employment Tribunal can award compensation of a ‘just and equitable’ sum in the event of a failure to comply with the ELI obligation. Any award is generally subject to a minimum of £500 for each employee whose information was not provided or was defective.

What if the seller wrongly labels the contractual status of an entitlement?

In the recent case of Born London Ltd v Spire Production Services Ltd, the scope of the ELI obligation was considered. S supplied B with its ELI and stated that it operated a non-contractual Christmas bonus. After the transfer, B contended that this was incorrect, that the bonus scheme was contractual, rather than discretionary, and S was therefore in breach of its ELI obligation under TUPE. B estimated its losses would exceed £100,000.

The Employment Appeal Tribunal held that although the employer had to specify the method by which remuneration had to be calculated it did not mean that the employer had to state whether any aspect of the remuneration was contractual. It therefore followed that as part of the ELI a seller was not obliged to state whether remuneration, including a bonus, was contractual or not.

“…that is a matter for due diligence, it is not a requirement of TUPE”.

The Employment Appeal Tribunal also observed that a buyer may prefer to have greater clarity as to the precise nature (contractual or otherwise) of some of the matters listed, but that is a matter for due diligence, it is not a requirement of TUPE.

Where does this leave us?

The decision should not be seen as authority for the proposition that a seller can escape liability for inaccuracies in the ELI.  However, the case does confirm that the employee liability information is not confined to contractual entitlements only. From the buyer’s perspective it is important that further details of the precise contractual nature of these employee liabilities should be pursued through due diligence and ideally dealt with in warranties and indemnities contained in the business sale agreement. Conducting thorough due diligence will also enable a buyer to agree a suitable price for the business, taking into account any potential liabilities that arise from the sale.

If you have any questions regarding to TUPE or any other employment law matters please contact Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453) or Greg Jones (mail to:gregjones@greene-greene.com ~ 01284 717446).   For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

“This article was previously published in the EADT Business East Monthly Magazine on 18/7/17.”