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Employment Bulletin – March 2017

This month, we will start with the statutory changes affecting all employers, workers and employees.

Facts and Figures

Readers will already be prepared for the increase in National Minimum Wage and the National Living Wage as from 1st April.  The NLW applies to all workers over the age of 25.  For all other workers the NMW rates still apply, and are as follows:-

  • 25 years and older                £7.50 per hour (NLW and NMW)
  • 21 – 24 years old                   £7.05
  • 18 – 20 years old                   £5.60
  • 16 – 17 years old                   £4.05

For apprentices under 19, or 19 or over who are in their first year, the rate is £3.50 per hour.

Whilst on the subject of apprenticeships, Section 25 of the Enterprise Act 2016 comes into force on 1st April.  From that date, it is unlawful to describe a training course wholly or partly in England as an apprenticeship if it is not a statutory apprenticeship.

Employment Tribunal fees/statistics

The Government published its review of employment tribunal fees on 31st January.  The conclusion is that it will not reduce the fees for either Type A or Type B fees.  It has found that the introduction of fees may have discouraged, rather than prevented, employees from lodging claims: it says they could have paid the fees out of other discretionary income.

There was a sharp drop in single claims in 2013/2014 following the introduction of fees, but since then the number of claims has remained relatively stable.

The review goes on to say that more people are now using the ACAS Early Conciliation service, although only 48% are finding it effective. Up to a further 34% go on to issue proceedings in the Tribunal, which means that around 18% did not get a resolution because they claimed they could not afford the fees.

The link to the full consultation document is: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/587649/Review-of-introduction-of-fees-in-employment-tribunals.pdf

On March 9th, the Ministry of Justice published quarterly statistics for the period to December 2016.  Tribunals disposed of 10,922 claims during that quarter, an increase of 8% over the same period in 2015.  Of those, 37% were settled via ACAS, 16% were withdrawn and 5% were successful at hearing.  Further information can be found on the MOJ website: Tribunal and gender recognition certificate statistics quarterly: October to December 2016.

Religious Discrimination

A decision the European Court of Justice has received a fair amount of publicity recently. In that decision, the ECJ  held that an employer who banned the wearing of a headscarf at work did not discriminate directly on the grounds of religion.

This case involved G4S who, in Belgium, operated a dress code policy of ‘neutrality’, banning the wearing of political, religious or similar signs. A Muslim employee announced that she wanted to start wearing a headscarf.  She was told that she couldn’t and was then dismissed.  She brought a claim for discrimination on the grounds of religion.  G4S argued that, because it aimed to project an image of neutrality to its customers and  treated all employees equally, its policy did not amount to direct discrimination on the grounds of religion.  The ECJ agreed with this argument, provided it was only applied to customer-facing employees.  The question remains: would it have been possible to redeploy the claimant in this case into a non-customer facing role, rather than dismiss her?

In another judgment given on the same day concerning a headscarf ban, the ECJ found that the ban did constitute direct discrimination because it was imposed in response to a customer’s objection rather than being based on an employer’s policy of neutrality. It held that a ‘genuine and determining occupational requirement’ under the Equal Treatment Framework Directive cannot include an instruction from a customer of the employer.

Long Term Sickness Absence

An oft recurring problem faced by employers is one of an employee on long term sickness absence. He or she might have exhausted the entitlement to SSP, but still remain an employee.  What can a reasonable employer do in the circumstances?

Firstly, a full investigation into the reason for the absence should be undertaken. If it is found that that the employee is unlikely to be able to return to work, he or she can be dismissed for ‘capability’.  In a recent case, a claimant argued that her dismissal could not be justified, an argument that the court found to be weak.  However, at the appeal hearing the claimant produced evidence that she was fit to return imminently and the employer’s failure to take this into account rendered the dismissal unfair.

The Court of Appeal upheld this decision, describing it as ‘near the borderline’.   It clearly involved unusual circumstances but the lesson for employers is therefore not to ignore any matters of evidence which may appear to be inconvenient.

Contractual status

We have yet another decision that highlights the difficulties that parties can face in determining an individual’s legal status for employment law purposes (Uber anyone?).   In Pimlico Plumbers Ltd and Mullins v Smith,  the Court of Appeal has upheld the judgment of the Employment Appeal Tribunal that a plumber was a worker for the purposes of the ERA 1996 and the Working Time Directive.  It also held that the plumber was an employee within the extended meaning of that term in the Equality Act 2010.  This was despite the fact that the plumber’s contract labelled him as an independent contractor.

The case here was fact sensitive, and based on the fact that he was required to provide personal service and not in business on his own account: he was an integral part of Pimlico Plumbers’ operations.

 

For further information about the above, or for any other employment law queries,
please contact James Eden on 01328 852839 or email here

 

 

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