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A B C D E F G H I J K L M N O P R S T V W Y

Employment

One in 20 new mothers made redundant by employers
Monday 13th November 2017

The charity, Maternity Action, are demanding more protection for women who are expecting a child or have recently given birth following the publication of their recent report which states that one in twenty mothers are being made redundant during pregnancy, maternity leave or on return to work.

Separate research conducted by the Equality and Human Rights Commission, released in 2016, found that 77% of pregnant women and new mothers had experienced discrimination or negative experiences in the workplace either during pregnancy, whilst on maternity or on their return to work. This is a steep climb from the 45% in 2005 who claimed to have experienced discrimination. Maternity Action reports cases where women who are pregnant or on maternity leave are often unfairly dismissed or face maternity discrimination under the guise of a redundancy situation.

Current System

In the current legal framework, employers should only make redundancies where there is a genuine need to i.e. where an employer needs fewer employees to do the work or where the business is relocating or shutting down. Employees, regardless of their length of service, who are selected for redundancy for a reason related to their pregnancy will have a claim for automatic unfair dismissal and for discrimination on the grounds of pregnancy or maternity. Pregnant women, or those on maternity leave, can be selected for redundancy but only if a fair selection process has been followed and the reason for redundancy is not related to their pregnancy or maternity leave. Further, an employer must consult with employees who are facing redundancy again ensuring that women who are pregnant or on maternity leave, and who are facing redundancy, are not disadvantaged during this consultation. Failure to consult with a women on maternity leave could result in maternity discrimination. Employers should of course consider whether there is any suitable alternative work.

There is additional protection for women on maternity leave. Where a suitable alternative position exists, a women whose position is being made redundant during maternity leave is entitled to be offered that position, failing which the employer could face an automatic unfair dismissal or discrimination claim.

Proposals

With their report highlighting that women who are pregnant or on maternity leave are at a greater risk of unfair redundancy, and with potential negative employer attitudes towards such women, Maternity Action have provided recommendations for improving the system. The report suggests a change similar to the German model where pregnant women and new mothers can only be made redundant under specific circumstances, such as business closure. These protections apply throughout pregnancy and up to 6 months after a mother’s return to work. Other recommendations include:

- Employer reporting, similar to with the gender pay gap, on retention rates of women after maternity leave
- Additional protection for women on maternity leave to be offered a suitable alternative role should be extended to include pregnancy and up to 6 months post-return to work
- Extended time limits for bring a claim in an employment tribunal to 6 months
- Increased Government efforts to raise awareness of employee rights in this area, aimed at both employees and employers

Comment

There is no doubt that the suggestion that one in twenty women face redundancy during or after maternity leave is troubling. Whilst the law offers some protection, Employment Tribunal claims are expensive, stressful and time consuming. There is also the wider issue of the draining away of talent in form of working mothers choosing not to, or being unable to, continue to work.  Although a Parliamentary Select Committee has expressed support for increasing protection to women during and following pregnancy and have called for a change in the law, changes have not been forthcoming with Government appetite for change seemingly lacking. With no sign of legislative change on the horizon, perhaps the recent removal of Employment Tribunal fees might mean that Tribunals are going to be increasingly busy with these claims?

To read the report, or for more information, please click here.


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A vision of employment
Tuesday 17th October 2017

Every autumn, thousands of political enthusiasts cram into conference halls and seaside towns up and down the country in order to hear the latest offerings of their beloved political party. This year was no different, and the speeches of those well-known senior party figures presented some interesting insights into the future of British employment.

The Conservative Party rounded off the party conference season in the first week of October with their annual jamboree in Manchester, with Labour and Liberal Democrat conferences taking place in late September in Brighton and Bournemouth respectively. So grab a cough sweet, take a sip of water, and allow us to brief you on the headline employment commitments from this conference season.

The Conservative Party

Theresa May opened her speech by announcing her commitment to the “British Dream” - a belief in stable employment, home ownership, and the ability to obtain a better standard of living than that of your parents’ generation. She went on to reiterate recent Government employment successes:

·         Employment is up to a record high

·         Unemployment is down to a historic low

·         Income inequality is at its lowest for thirty years

·         More women are in work than ever before

·         3 million more apprenticeships have been created by Government

·         A National Living Wage has been implemented

May did not announce any additional employment policy developments. The Conservative position on employment policy is, therefore, presumably unchanged from their 2017 manifesto.

Other speakers did go further in detailing their vision for British employment policy. The Conservatives:

·         Will invest half a billion pounds a year extra to radically reform technical education

·         Will deliver 3 million more apprenticeships by 2020

·         Remain committed to the National Retraining Scheme; to help people whose jobs are threatened by technological change

·         Will give employers the tools they need to recruit, retain and support disabled people. Almost 5,000 employers have signed up to the Disability Confident scheme so far

·         Have established auto enrolled pensions. By the end of August, over 8.5 million people had been automatically enrolled into a workplace pension

·         Will establish a New Futures Network, which will match offenders with employers and ensure that in-prison training matches the needs of the local jobs market

·         Will open an Institute of Technology in every major city in England, with a view to incubating key technical skills such as construction and healthcare

Greg Clark, Secretary of State for Business, Energy and Industrial Strategy, made passing reference to the Taylor Review, stating that Britain is the first country to think seriously about how the gig economy can drive economic success - while safeguarding the rights and conditions of people who work in it. He claimed that the key to driving earning power is to champion “good work” by “responsible employers” (those which pay taxes and fairly remunerate employees, without wielding monopoly power).

The Labour Party

Jeremy Corbyn’s offering began with an attack on the record of Government to date, before claiming that the Labour Party is setting the agenda.

Referring to Britain’s decision to leave the European Union (“EU”), Corbyn explained that our “future is now under real threat”, and expressed concern that a powerful Conservative faction see Brexit as “their chance to create a tax haven” which would result in low-wages for British workers, and a mass exodus of skilled jobs and workers to the EU. Corbyn explained that a Labour Brexit would put jobs first by using “powers returned from Brussels to support a new industrial strategy to upgrade our economy in every region and nation”.

Corbyn went on to state that “Labour will take action to stop employers driving down pay and conditions” and will “not pander to scapegoating or racism”, but did not provide any further information. He went on to advocate a more democratic workplace environment, before championing the ability of unions to “properly” represent workers.

John McDonnell, Shadow Chancellor, went one step further in establishing Labour’s wish to “massively” expand worker control and the co-operative sector in Britain. He stated that “building an economy for the many also means bringing ownership and control of the utilities and key services into the hands of people who use and work in them. Rail, water, energy, Royal Mail - we’re taking them back.”

He then claimed that the Government’s treatment of EU citizens has been “brutal”, before warning the Conservative Party that if EU workers’ rights are undermined following Brexit, they will be given the political battle “of their lives”. He stated that the public sector pay cap will be scrapped for all, and that should Labour be elected to govern:

·         A real living wage of £10 per hour would be introduced

·         Pay ratios would be implemented (to prevent disparity of wages between top and bottom-rung workers)

·         The pay gap would be addressed

·         All legislation would be measured against its impact on women before implementation

·         The Trade Union Act would be repealed

·         A Ministry of Labour would be reintroduced

·         Collective bargaining would be restored

Debbie Abrahams, Shadow Secretary of State for Work and Pensions, focussed mainly on the issues of pensions and welfare in her conference speech, and did not provide any development of Labour employment policy.

The Liberal Democrats

Vince Cable recently became leader of the Liberal Democrats, and used the party’s conference to make a number of bold statements. He expressed a desire that the Government declare a right to stay for all EU nationals currently residing in the UK (presumably including a right to work indefinitely).

Cable went on to claim that high quality apprenticeships and training should be available to all, before expressing dissatisfaction at “Tory plans to ‘fire at will’ and to abolish the right to strike”. Cable went no further in expressing his vision for British employment.

Conclusion

None of the announcements relating to employment made by the two main parties would have come as a shock to those voters who read the manifestos during the election campaign earlier this year, and which we summarised in an earlier blog.

The Conservatives continue to push towards the greater availability of apprenticeships and vocational training, whilst Labour focusses on lower- paid workers, mass-renationalisation and unionisation.

We will, of course, keep a close eye on policy developments and keep you updated.


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Shared Parental Leave
Wednesday 27th September 2017

ACAS confirm in its latest report that Shared Parental Leave is still not achieving what was desired.

This time last year, I shared a blog about how the Shared Parental Leave Regulations (“SPL”) in force from 1 December 2014 had not really produced the effect that I believe they set out to achieve.  The landscape doesn’t seem to be changing, with the latest research report from ACAS published “Flexible Working for Parents Returning to Work – Maintaining career development” concluding that there is still a “cultural stigma” around men taking time off work.

Previously, I have talked about the complex information the mother and father have to consider to first work out whether they are even eligible to take SPL, in addition to this the latest research also identifies that employers may still not be doing enough to support parents who take an extended period of leave, and that men and women alike are being faced with a ‘parental penalty’ due to the lack of time spent with their children and families.

Information available and circulated to women in relation to maternity leave is clearly more extensive than the information that is available to men in relation to paternity leave and SPL. The research also highlights that whilst women are encouraged to take their maternity leave, keep in touch and be informed about all options for flexibility on return, fathers are often being treated differently.

Practically, what can your organisation be doing to inform employees of their rights in relation to SPL?

(1)   If your organisation has an enhanced Maternity Pay package, does it also have a matching package on the SPL side?

(2)   Train and re-train all employees on family friendly policies and practices, reminding new fathers as well as new mothers about their rights to flexible working;

(3)   Mentoring, coaching and training of senior employees in the team to ensure they are aware, understand and embrace the concepts of maternity, paternity and shared parental leave;

(4)   Develop specific schemes to assist and support people that return from such periods of leave, in areas such as how work is organised, how opportunities are promoted, and how those having a break can return and maintain a career track; and

(5)   Ensure consistency with the companies approach when considering flexible working requests so that each request is considered on the basis of whether it can be accommodated and not on the reason for the request.


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Taxi for Uber?
Friday 22nd September 2017

If you’ve caught up with the news today, you’ll have seen that Uber has once again hit the headlines. Transport for London (TfL) has taken the surprising decision not to renew Uber’s private taxi licence, when it expires at the end of the month. TfL cites Uber’s “approach to reporting serious criminal offences” as one particular cause for concern. Uber have 21 days to appeal.

Whilst ensuring public safety and security is obviously of paramount concern in the capital, to say the app is widely used there is an understatement. Aside from the Londoners who regularly use the app to get around, there are thought to be in the region of 40,000 drivers who rely on the app as a source of income. What will the impact be on them?

The answer to that question, brings us back to the issue which Uber dominated the news for last year – employment status. You may recall that late last year, an employment tribunal found that Uber’s drivers should be classed as workers, rather than self-employed (see our blog here). Whilst workers have greater employment rights than the self-employed, their rights still fall short of those conferred on employees.

If Uber drivers were employees, then TfL’s decision (provided any appeal was unsuccessful) would undoubtedly have resulted in a massive collective redundancy exercise. Uber would have been under a duty to consult with the drivers; to try and avoid the redundancies and to look for suitable alternative employment. Because Uber’s drivers are classed as workers, Uber is not under these obligations and the drivers will not be entitled to any redundancy pay.

Whilst I’m not disputing TfL’s decision, there’s no doubt that it highlights the lack of employment rights in the gig economy. It will be interesting to see whether the number of affected workers in this case is an impetus for change.


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Calculating Holiday Pay: Factoring in Voluntary Overtime
Wednesday 2nd August 2017

Should payments and allowances received in respect of regular “voluntary” overtime be treated as forming part of a worker’s “normal remuneration” for the purpose of calculating the first four weeks of that worker’s holiday pay?

Yes, held the EAT in a recent judgment handed down in Dudley Metropolitan Borough Council -v- Willetts & Others [2017].

Overview

This claim was brought before the employment tribunal by a group of fifty-six individuals who were employed by the Council to provide housing maintenance and repair services (‘the Claimants’).  Generally, each of the Claimants was contracted to work thirty-seven hours per week, in addition to an agreed two-to-four hours of overtime.  In addition, it was accepted that the Claimants also performed, to varying degrees, additional duties on an entirely voluntary basis, and that “this additional work was performed almost entirely at the whim of the employee, with no right to enforce work on the part of the Council”.

The Claimants argued that the failure by the Council to include payments and allowances made in respect of this “voluntary overtime” in its holiday payment calculations constituted unlawful deductions from wages contrary to S.13 Employment Rights Act 1996.

The tribunal held that:

  • Where employees only work voluntary overtime “occasionally”, payments and allowances made in respect of such overtime need not be factored in to an employer’s holiday pay calculations; but
     
  • Where employees work voluntary overtime on a “regular” basis, payments and allowances made in respect of such overtime do need to be factored in to an employer’s holiday pay calculations in respect of the first four weeks’ holiday.

The Council appealed the decision to the EAT.

Appeal

The EAT dismissed the Council’s appeal and instead upheld the tribunal’s original decision.  In doing so, the EAT created a binding principle that, where voluntary overtime is performed by an employee with sufficient regularity, payments relating to that overtime must be included in an employer’s calculations in respect of the first four weeks’ of holiday pay.

Providing guidance on how ‘regular’ the voluntary overtime must be in order for it to form part of holiday pay calculations, the EAT emphasised that tribunals will need to consider whether a pattern of work is “sufficiently regular and settled” such that it may justifiably be described as “normal” for the employee.  The EAT did not, however, set out any ‘hard and fast’ rule to assist tribunals in determining this issue of “regularity” – instead, it was confirmed that this will be a question of “fact and degree” for tribunals to consider on a case-by-case basis.

Comment

The EAT appears to have been guided by the overarching principle of EU law that that “pay” in respect of annual leave should “correspond to “normal remuneration while working”.  The EAT also agreed with the Claimants’ submission that, when working a shift of voluntary overtime, they were in effect performing work which was required of them under their contracts of employment. Accordingly, it followed that the overtime payments were directly linked to tasks the Claimants were required to perform under their contracts of employment, and so should rightly be considered to form part of their “normal remuneration” for the purposes of calculating holiday pay.

Given last week’s landmark Supreme Court ruling that employment tribunal fees are in fact unlawful, employers should be alert to the fact that employees may well now be more willing to pursue lower value claims (such as those for unlawful deductions from wages) in the tribunal.

Therefore, employers would be well advised to review past disputes over alleged deductions from wages - there is an argument that employees who previously wished to bring such a claim against their employer (but were prohibited from doing so by the level of the tribunal fees) should now be allowed an extension of time in which to bring their (now time-barred) claim on the basis that they were prevented from doing so originally by the ‘unlawful’ fee regime.  This is certainly an issue to be monitored closely.

The risk of such liabilities to employers is, however, reduced by the fact that an employee bringing a claim in respect of a series of unlawful deductions must do so within three months of the last deduction complained of, as confirmed in the recent decision in Fulton –v- Bear Scotland.

Irrespective, this ruling sets a binding precedent that regular voluntary overtime performed by workers must be included in holiday pay calculations in the same way as compulsory overtime.  Employers would therefore be well advised to closely assess the overtime arrangements that exist within the business, and also to review whether their current holiday pay system(s) adequately take into account employees’ remuneration in respect of any such arrangements.


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Gender Pay Gap – Raising issues for employers
Monday 31st July 2017

The BBC’s recently revealed gender pay gap has attracted a lot of attention and criticism, which highlights the significant pressure employers may face due to the gender pay gap reporting legislation.  

An open letter signed by over 40 women at the BBC addressed to the BBC’s Director-General and published in The Telegraph demands action into what the signatories say is women at the BBC “being paid less than men for the same work” and calls on the Director General “to act now” after the Corporation’s annual report revealed that ‘only a third of its 96 top earners women and the top seven all men’. The Independent has also reported that “at least 10 female presenters are reportedly preparing to sue the BBC” in light of the gender pay gap.

The gender pay reporting legislation which came into force in April 2017 requires both public and private sector employers with 250 or more employees to produce a gender pay gap report containing certain gender pay gap information and for that report to be published on their website and a designated government website by April 2018 and annually thereafter. With this increased transparency, any gender pay gaps that are identified are likely to result in employers facing negative publicity and significant pressure to justify why this is so as well as potentially facing claims for sex discrimination and equal pay depending upon the reason(s) for any gaps.    

It is hoped that where a gap exists employers will question the causes of the gender pay gap in their organisations and consider the action they could take to decrease it. Employers may reduce the potentially negative impacts of publishing gender pay gap information by analysing the information to help understand why gaps exist and take action to decrease it.

We would strongly recommend that employers produce a supporting narrative to accompany their gender pay gap report to explain any gender pay gaps, detail the strategy for reducing the gender pay gap and explain what action has been taken to address the situation. By producing an effective narrative over time employers can show they have reduced any gender pay gaps, and hopefully achieve and retain a workforce which works harder as it feels valued by its employer and avoiding PR issues such as those experienced by the BBC.  In some circumstances, seeking legal advice may also bring the benefit of legal professional privilege against information and draft reports/ data that would otherwise be disclosable in legal action, such as Equal Pay claims.

As well as assisting you with drafting a narrative we can help by advising on compliance with the new gender pay gap reporting regime, reviewing your draft reports and advising on tricky areas such as casual workers, overseas employees and bonus payments.

For more information please contact a member of our employment team or Susan directly on 0151 600 3157 or via email


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Employment Tribunal Fees - Supreme Court Ruling Explained
Thursday 27th July 2017

Since the coming into force of the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 (‘the Fees Order’) on 29 July 2013, any employee hoping to bring a claim against their employer / former employer in the employment tribunal has been liable to pay fees of up to £1,200 in order to do so.  The stats suggest that, following the introduction of the Fees Order, the number of tribunal claims being brought against employers (especially lower value claims) has fallen by approximately 70%.

Yesterday, the Supreme Court handed down a highly significant judgment in the case of R (on the application of UNISON) –v- Lord Chancellor, in which it ruled unanimously that the employment tribunal fees imposed by the Fees Order are in fact unlawful under domestic and EU law, and therefore shall be quashed with immediate effect.  Following the decision, the justice minister Dominic Raab stated that the government would cease taking fees for employment tribunals "immediately".

Delivering the leading judgment, Lord Reed stated that the “dramatic and persistent” fall in the number of employees pursuing claims in the employment tribunal since 2013 suggested that the Fees Order was indeed hindering employees’ right of access to justice, and was therefore unlawful.  In reaching this conclusion, the following factors appear to have been material:

  • The level of the fees imposed on claimants is such that they are clearly not affordable for everyone. Coupled with the under-utilisation of the fee remission regime, it was concluded that many prospective claimants since 2013 have opted not to pursue claims simply because they were unaffordable;
  • The court was convinced by several hypothetical examples, put forth by UNISON, of situations in which the level of the fees, when weighed against the potential tribunal award (and the likelihood of an award being paid in full by a respondent), would actually render it ‘irrational’ for an employee to pursue a claim against their employer; and
  • The fees cannot not be justified as a “necessary restriction” on employees’ rights of access to justice.  In practice, the fees have generated far less revenue to support the tribunal system than anticipated, whilst also apparently failing to encourage parties to settle disputes during the ACAS early conciliation period.

In a separate judgment, Lady Hale stated that the Fees Order was also indirectly discriminatory, contrary to the Equality Act 2010.  The reasoning behind this was that the Fees Order requires higher fees to be paid by Claimants for “Type B” claims than for “Type A” claims.  As women are more likely to bring “Type B” claims, the Fees Order essentially puts women at a particular disadvantage.

Impact of the Ruling

The judgment is likely to have a material impact upon both employers and employees alike, and the Government’s response to the Supreme Court ruling in the coming days and weeks will need to be monitored closely.

With the fees today having been declared unlawful, there are now a number of pressing issues for employers to consider:

  • Employers should prepare themselves for a rise in the number of employment tribunal claims that they may face.  In particular, although Claimants will still be required to engage with ACAS’ pre-claim conciliation service, the removal of the fees would appear to increase the likelihood of more speculative claims being brought by employees.
  • The Ministry of Justice has already issued a statement confirming that tribunal fees incurred by claimants since the introduction of the Fees Order will be refunded.  How the Government proposes to deal with this will be watched closely by employers who have been ordered to reimburse a claimant’s fees as part of a judgment or settlement since 2013 - there could well be scope for an employer to recover such costs from the Government.
  • There is potential that employees dismissed after July 2013 could now have grounds seek extensions of time for bringing their claims, on the basis that the unlawful Fees Order effectively prevented them from doing so.  In the event that this is permitted, employers may well undertake a review of any employee grievances / dismissals since 2013 to assess the scale of any potential liability they may have.

From the Government’s perspective, aside from the estimated £32m in fees to be reimbursed to claimants, there is also the wider question of whether the Tribunal Service is set up now to deal with a larger volume of claims, given that substantial cuts were introduced on the assumption that the reduction in claims would be a permanent trend.


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Breach Court Orders at your Peril!
Monday 24th July 2017

Can a breach of the terms of a Court injunction land a party in prison? The answer to this question is yes, as recently discovered by an ex-employee who had taken an employer’s confidential information and then attempted to cover his tracks following receipt of the injunction.

The High Court in the recent case of OCS Group UK v Dadi has imposed a prison sentence of 6 weeks on an employee for breaching a Court order in a dispute over confidential information.

Background Facts

Mr Dadi was an employee of OCS Group UK, an aviation cleaning contractor at Heathrow Airport. OCS believed that Mr Dadi had sent some of its confidential information to his private email account in order to disclose it to a rival company. It consequently applied for an interim injunction in relation to the confidential information which was granted by the Court.

The terms of the interim injunction specifically prohibited Mr Dadi from deleting or disclosing any confidential information. The injunction also contained the usual penal notice warning that any disobedience of the terms rendered Mr Dadi liable to be imprisoned. Mr Dadi subsequently committed several breaches of the terms.

Following his misdemeanours, and after obtaining legal advice, Mr Dadi decided to come clean by admitting to the Court that he had committed the various breaches of the terms through a mass deletion of around 8000 emails.  Mr Dadi had also passed confidential information to a number of people. OCS took a dim view of these breaches and applied to the Court for Mr Dadi to be committed to prison for contempt. In his defence, Mr Dadi asserted that he should be spared prison as he had admitted his wrongs, and then subsequently co-operated with OCS in trying (unsuccessfully) to recover the deleted emails to rectify the various breaches.

After balancing the magnitude and brazen nature of the breaches with Mr Dadi’s acceptance of his wrongdoing and his subsequent co-operation, the Court deemed the appropriate sentence for the contempt to be six weeks' imprisonment.

Comment

This case provides a stark reminder of the potential consequences of breaching a Court order.

The case also underlines the effectiveness of obtaining an injunction – it can be a very powerful remedy!


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Headscarves, high heels and discrimination
Thursday 16th March 2017

The Court of Justice for the European Union (CJEU) has handed down its widely anticipated judgment in the case of Achbita v G4S Secure Solutions.

G4S had been operating a blanket dress code policy of 'neutrality' within Belgium, which effectively banned the wearing of all philosophical, political and religious symbols. A Muslim employee had then begun wearing a headscarf despite a knowledge of the policy, and a number of warnings that the headscarf was in contravention of the said policy. The employee’s refusal to stop wearing the headscarf eventually resulted in her dismissal. The dismissal was subsequently appealed by the employee all the way up to the CJEU.

The CJEU held that G4S’s blanket policy of neutrality was not tantamount to direct discrimination on grounds of religion because the blanket policy prohibited all religious symbols. This effectively meant that no one particular religion was being treated any less favourably than any another religion.

The CJEU did agree with the employee that G4S's policy introduced a difference in treatment which was indirectly based on religion, whereby Muslims were placed at a particular disadvantage. The CJEU concluded though that this disadvantage did not result in indirect discrimination because G4S’s desire to project an image of neutrality was achieving a legitimate aim, provided it applied only to customer facing employees. This was because the business of G4S involved constant personal contact with a diverse range of people where it was thereby proportionate to insist in displaying a neutral image.

The question still remains though whether an employer could demonstrate the required ‘legitimate aim’ in a non-customer facing role. Here is a link to the press summary of the case.

Within the UK context there has been our own controversial dress code debate, which has been triggered by the public backlash to a temporary receptionist being sent home for wearing flat shoes in breach of a workplace dress code requiring female workers to wear 2 to 4 inch heels.

The employee subsequently petitioned the government to actively prohibit such gender specific dress code requirements which gained more than 150,000 signatures. This led to the House of Commons Petitions Committee and the Women and Equalities Committee publishing a joint report calling for a ban on employers requiring female staff to wear high heels at work.

We await the government’s official response to the report within the next two months.

As demonstrated by the CJEU decision it is right for businesses to place an intrinsic value on the enforcement of some form of work place dress code. However, as both these cases demonstrate, the parameters for when a dress code achieves a legitimate aim and when a dress code is discriminatory remains palpably unclear.

If you are worried about your business dress code or rules, please do not hesitate to contact Lee Jefcott by calling 0161 836 8898 or emailing lee.jefcott@brabners.com.


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Must an expired warning always be disregarded when considering the dismissal of an employee for misconduct?
Friday 3rd March 2017

In Stratford v Auto Trail VR Ltd, the EAT considered whether an employer taking account of a history of expired warnings meant that the employee’s dismissal was unfair.

Facts

Mr Stratford started work for Auto Trail VR Ltd (“Auto Trail”) in November 2001. Mr Stratford had a poor disciplinary record with 17 occasions on which Auto Trail had taken formal action against him, although there were no live warnings on his file at the time of the events that ultimately led to his dismissal.

In October 2014, Mr Stratford was seen with his mobile phone in his hand on the shop floor. This was strictly prohibited under Auto Trail’s employee handbook. Auto Trail contended that the offence in question was not one of gross misconduct and that Mr Stratford would receive a final written warning, however, as a result of his extensive disciplinary record, Mr Stratford was dismissed with 12 weeks’ pay in lieu of notice.

Mr Stratford claimed unfair dismissal. The Employment Tribunal rejected the claim and held that Mr Stratford had been dismissed for conduct consisting of his disciplinary history. The normal employment practice of ‘wiping the slate clean’ following the expiry of a warning was balanced against Mr Stratford’s attitude to discipline and it was concluded that, in the circumstances, the dismissal was fair. Mr Stratford appealed to the Employment Appeal Tribunal.

EAT Decision

Mr Stratford argued that it was not reasonable for Auto Trail to rely upon earlier misconduct as the principal reason for dismissal where any warnings given in respect of that misconduct have expired.

The EAT dismissed the appeal and relied on the fact that section 98(4) of the Employment Rights Act 1996 does not single out any particular circumstances as necessarily determinative of the questions of reasonableness, equity, merits or fairness.

The fact that the employee had a substantial history of misconduct, that a final warning had been given in respect of that misconduct and that the final warning had expired would all be objective circumstances relevant to whether the employer had acted reasonably or unreasonably in its decision to dismiss. In this instance, Auto Trail were considered to have acted reasonably by taking into account such factors in its decision to dismiss Mr Stratford.

Points to Note

The decision in Stratford noted a distinction between:

a) An employer who has regard to the previous conduct of an employee when deciding on a sanction for a dismissible offence; and

b) An employer who uses expired warnings to elevate conduct into a dismissible offence.

It would not be advisable for an employer to seek to rely on this seemingly artificial distinction however:

  • It is clear that expired warnings do not need to be disregarded in every case when deciding to dismiss an employee. However, employers will need to proceed with caution when considering the circumstances in which an expired warning may lawfully be taken into account. The outcome may have been different had the employer relied on one previous expired disciplinary warning.
     
  • The way in which repeat offenders and warnings, in particular expired warnings, are dealt with by the employer’s disciplinary policy will likely be relevant to any tribunal claim on this matter. Employers should review their disciplinary procedures to consider whether they allow for any flexibility which would permit reliance upon an expired warning in any decision to dismiss.
     
  • The decision in Stratford should not be treated as one which opens the floodgates and permits employers to rely upon historical instances of misconduct (which have already been investigated and dealt with) as a potentially fair reason for dismissal. Each matter must be assessed on a case by case basis, so it is difficult to predict with any certainty how Stratford will be applied by Employment Tribunals.
     
  • Employers should always tread carefully in relation to expired disciplinary warnings. We would recommend that you seek independent legal advice if you are contemplating dismissing an employee with previous expired warning(s).
     

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