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In a shock decision, the Supreme Court have ruled that fees for bringing employment tribunal claims are unlawful and will be removed with immediate effect.
In 2013, the Government introduced fees claiming it would cut the number of weak and malicious cases, although statistics provided by the Government suggest it may have also helped to prevent legitimate cases with 79% fewer cases being brought to tribunal since the fees were introduced.
The decision, following a judicial review application by Unison, holds that the statutory order which introduced the fee system was not a lawful exercise of the Lord Chancellor’s statutory powers, because the requirement to pay tribunal fees unjustifiably interferes with access to justice, frustrates the enforcement of employment rights, and discriminates unlawfully.
While the Supreme Court held that the Lord Chancellor did have legitimate aims in introducing tribunal fees, the fee regime was not a proportionate means of achieving those aims. In fact, the Supreme Court held that for any fees to be lawful they must be reasonably affordable for low or middle income families. The current level of fees meant that claimants would need to restrict their ordinary and reasonable living expenses to afford bringing a claim.
What does this mean for employers?
Until further notice, employment tribunal fees will be null, meaning that the number of employees bringing a claim against their employers is expected to rise dramatically. No longer will they need to balance financial obligations with perceived access to justice, so as an employer you will need to ensure due diligence is undertaken whenever a decision is made which could bring about a case.
On a lighter note, for those employers who have paid fees within the last three years, the Lord Chancellor has given a legally binding promise to refund any tribunal fees, a process which is expected to begin immediately.
Out of time applications
Employment tribunal claims for unfair dismissal or discrimination are subject to strict time limits of three months in most cases, but this judgment could potentially open the floodgates for any employee dismissed in the last three years to bring about a claim.
As the Supreme Court has already held that fees have deterred claimants from seeking access to justice, it is arguable that the tribunal will take this into account when assessing any out of time applications. All employers need to be aware of this risk and seek advice if they hear from the tribunal in these circumstances.
If you are unsure what this judgment means for your business please don’t hesitate to contact us for more information. We will be holding a webinar on Tuesday 1st August at 12pm to discuss this decision, please click here to book your place.
We will also be releasing a free podcast where will be discussing the decision in more detail, stay tuned for more information.
With the recent bad press surrounding zero hours contracts, many are calling for their abolition. From Sports Direct to care staff across the UK, there has been a wide misuse of zero hours contracts, but does that mean your business should rule them out? We look at the other side of the zero hours coin to find out why they could benefit your business and staff.
Let’s start with Mike Ashley.
When he’s not alienating the St James’ Park faithful, you can find him being admonished for shoddy work conditions in front of a review committee. Conditions in his warehouses have been compared to those of a Victorian workhouse with one member of staff giving birth in a bathroom due to fear of taking time off.
While the review committee revealed many shortcomings in the way Sports Direct treated their staff, the zero hours contract has been highlighted as one of the key issues. But should it have been?
While many see the zero hours contract as a way for the Conservatives to fudge the employment figures, the practice has been used for decades and in other countries is often referred to as a part time or temporary work.
In truth, a zero hours contract has no legal definition and is used as an informal agreement with an employer who will provide hours when needed, but aren’t guaranteed. While some argue this is outdated and a way of oppressing workers, it’s generally beneficial for both sides.
Zero hours industries
The hospitality and retail sectors make the most use of zero hours contracts due to the peaks and troughs their industries are likely to go through during seasonality. A restaurant isn’t likely to succeed if it had to pay staff during quiet periods, therefore they need to work with their workers to effectively manage rotation to suit their busier periods.
Zero hours contractual rights
This will depend entirely on whether your staff are defined as an employee or a worker. Both are entitled to minimum wage, paid holidays, rest breaks and protection against discrimination. Employees are additionally entitled to protection against unfair dismissal, redundancy pay and time off for emergencies. Employees also need to provide a minimum notice period.
One area of contention for zero hours workers is that they feel they are ‘punished’ for not accepting hours that are offered. This is often in the form of moving down the list when the next set of hours becomes available.
If you’re looking at taking on the zero hours template then it pays to be flexible. When taking on workers try to understand their availability while also getting across your expectations. For instance, if you often require someone at the drop of a hat but the worker is dependent on public transport it may be worth managing your expectations. Likewise, if someone repeatedly turns down work they need to be made aware that they will no longer be offered hours going forward.
Above all else, zero hours contracts should be reviewed on a regular basis. If you find that you have the ability to take someone on a full or part time contract, do so. It will show people that their hard work and loyalty does pay off.
Be honest regarding your requirements. A few hours a week may suit a student, but someone who has a family to support or bills to pay may find waiting around frustrating. Don’t overload with zero hours contracts as you may find that you alienate more talented individuals by playing the odds.
For more information about zero housr contracts and how best to implement them in your business please call us on 0161 603 2156.
The history of tattoos can be traced back across many cultures. From Southern India where tattoos are used as cultural symbols across tribes, to Egypt where women used them as a way of indicating status, tattoos have been around for centuries.
In the 17th century, the Japanese used tattoos as a way of marking criminals, fast forward to the 21st century and teens are getting fictional Japanese creatures tattooed on them for fun. Times have certainly changed.
Tattoos mean many things to many people, some use them to celebrate a moment, others to honour a loved one, and then there those who adorn themselves with tattoos as a way of looking cool, usually taking the form of tribal designs, barbwire or the ever popular Chinese symbol.
The benefits of ink
Besides giving people something to read and an easy way to describe someone, tattoos don’t provide much in the way of use in the workplace. Companies will have internal policies when it comes to showcasing tattoos in the workplace.
Employees in customer facing roles may be asked to cover their inking, while other companies may not have an opinion one way or the other. Often this will depend on the type of industry and the clientele they serve.
The tale of Holland, Barrett and the compass
Holland and Barrett recently chose not to hire a student due to tattoos featured on his hands and fingers which he was unable to cover. The student then did the sensible thing and ran straight to the press, complaining of discrimination…
The student in question is 18 with a tattoo of a compass on one hand and ‘STAY TRUE’ across his knuckles. Instead of pointing the finger of ‘discrimination’ at Holland and Barrett, time may be better spent asking why the 18 year old thought it appropriate to have ‘STAY TRUE’ tattooed on his hands.
Just to clarify, I’m not sure who the lad needs to stay true to, but at least he’s in no danger of forgetting to do it.
Holland and Barrett issued a statement advising they do not have an issue with tattoos they just ask them to be covered on the shop floor. Something the student would not be able to do.
On the other hand
This isn’t the only time someone who couldn’t get their way has gone to the press. In September 2015, a woman saw her job offer rescinded when the business discovered she had intricate artwork covering her fingers, hand and forearm.
Dee Set, a shopping logistics company, had offered a job role following a telephone interview, but revoked the offer when they were told about the tattoo. The woman did the only thing she could and took to social media, lambasting the company for discrimination…
Following a public backlash, Dee Set offered the woman the job but she declined.
Do either of the examples above have a case to answer for discrimination?
The short answer is no.
The long answer is that companies are able to ask employees to cover tattoos, keeping in line with company values, if they are consistent, i.e. all employees must adhere to the same rules.
Is it discrimination?
While people with tattoos may feel ostracised it is important to remember that tattoos are a choice. They are not being discriminated against due to their gender, sexual orientation, race, colour, creed, or religious beliefs.
It is common sense that certain industries would prefer a clean cut image for their employees; while very few promote a strict ban, there are many that tolerate tattoos but prefer them to be covered. If you have tattoos on your hands, neck or face you are opening yourself up to judgement that may see you miss out on certain opportunities. Reputable tattoo studios will refuse to tattoo certain areas of the body; others will talk the decision through with the client, detailing the risks of such a public piece.
What are my rights as a business?
You are well within your rights to request tattoos are covered, so long as there is a business reason behind it. If you choose to implement a dress policy that incorporates tattoos and piercings then you need to be consistent across the business.
As tattoos become more popular you are bound to meet candidates with them. Before you make a recruitment decision ask yourself whether your reason for having tattoos covered is a business reason or a personal one. Tattoos do not diminish the skill set of the individual, but it may be an issue for customer facing businesses.
Too little, too late?
As for those individuals who choose to have tattoos that aren’t easily covered, manage your expectations and don’t lash out on social media if you’re refused a position. With many companies checking social media profiles of respective candidates, you don’t want to give the wrong impression.
If you do have a tattoo that isn’t easy to cover, be honest with your prospective employer. By being open and honest you are giving a good account of yourself that could result in the business taking a chance on you.
For more information about your rights as a business when it comes to dress code please contact Opsium Employer Support on 0161 603 2156
If an employee is nearing the end of their maternity leave and preparing to return to work, it’s likely they will need to think about a number of things including childcare and flexible working hours. If the returning mother is breastfeeding they may need to discuss special dispensation within the business to accommodate this.
Returning to work
An employee returning from maternity leave, still breastfeeding, will need to put this in writing to their employer who then needs to speak to the employee to determine any individual needs they may have. If an employee plans to express milk, then efforts should be made to provide a safe, clean and private environment – i.e. not the toilet and nowhere with CCTV.
While breastfeeding is a natural process and is proven to help mother and baby bond, it is still a highly personal activity and many mothers do not feel comfortable breastfeeding outside of their home. As a business, try to make allowances for returning mothers, many will already feel apprehensive about returning to work having been out of the loop for six plus months. It takes time to acclimatise and the added intolerance and impatience of a business unwilling to assist in their return will only make things more difficult.
Support is the key
While there is no law for employers to provide a private area to express or offer flexible working hours and breaks, it is a legal requirement to provide pregnant and breastfeeding mothers an area to rest and, where necessary, lie down.
While laws are vague when it comes to breastfeeding at work, it is important to remember that support is a commodity that should be afforded to all employees. By providing employees with a good standard of care and support in the workplace you are effectively promoting an environment that values strong relationships built on trust.
World breastfeeding week
World breastfeeding week started on 1st August and this year’s theme is about how breastfeeding is a key element in getting people to value their wellbeing from the start of life, how to respect each other and care for the world we share. If you would like more information about world breastfeeding week please visit their website.
As the impact of Brexit sweeps the nation, what happens next and how this will influence employment law is far from certain. Until a formal Brexit, the UK will remain subject to EU law and EU decisions, so in the short term nothing changes. However it has to be hoped that during the two years leading up to Brexit the position becomes clearer to enable businesses to start planning for the new world.
During the campaign, arguments were put forward that Brexit could lead to a reduction in the red tape restricting business. Think tank, Open Europe, issued a report in 2011 suggesting the cost to UK business and public sector organisations of complying with EU social policy regulations, such as the Working Time Regulation stands at £8.6 billion per year. They then went on to suggest a Brexit coupled with a complete deregulation of these social policy requirements ‘would yield an annual £14.8 billion boost to UK GDP’. Whether these calculations stand up to scrutiny is of course open to debate and it is highly unlikely any government has an appetite for complete deregulation. However, Brexit does have the potential to deliver some savings for businesses with a reduction of red tape.
It is an over simplification to suggest that all UK employment law is derived from EU law. The National Living Wage and Minimum Wage are the result of laws made in the UK in isolation. The recent changes giving the right to share parental leave was the result of UK government legislation supported by both the coalition and opposition. Equally, many EU Directives are broadly in line with progressive government policy and would be difficult to unwind in any event.
Consideration should also be given to the fact that many employment rights derived from EU law have already been written into the contracts of UK employees; employers will therefore face difficulties in making changes to existing contracts, even if EU regulations were no longer applicable. This does present the very real risk of employers offering different terms and conditions to new employees post Brexit.
During the Brexit debate the free movement of labour was a key battleground. The general consensus appears to be that Britain could now move to an Australian based points system. The detail of how any scheme might operate in practice is some way off. For many employers in sectors heavily dependent upon workers from the EU, such as catering, the concern must be that any future system does not lead to labour shortages and that it offers sufficient flexibility to allow them to remain competitive. An alternative view is that during negotiations the UK may face having to accept free movement of labour to some extent, as the price to ensuring a free trade agreement with the EU, similar to the position in Norway and Switzerland.
There can be no doubt that businesses across the UK will quote the Working Time Directive as the EU law that presents them with the biggest headache. From the outset the UK was reluctant to implement the directive and indeed originally opted out in 1992. It wasn’t until 1998 with a change in government that this decision was reversed. Employer groups have suggested this directive has significant cost implications for businesses and there will no doubt be calls for its repeal.
The basic requirement of the directive is that an employee cannot work for more than an average of 48 hours a week and must receive 4 weeks paid holiday. However it is the detail in the regulation itself which presents numerous challenges to all employers. It should be noted that the UK government opted to expand the paid holiday period beyond the EU minimum requirements to 5.6 weeks. So again we have a clear example of where the UK has gone above and beyond EU law.
Whether any government will seek to repeal the regulation or simply chip away at the edges is open to question, but they would need to consider the political risk at the ballot box. For example a proposal to reduce the right to paid holiday does not immediately sound like a vote winner!
Similarly the Temporary Agency Workers Directive is another piece of EU law that was not welcomed with open arms by UK employers. This regulation provides agency workers with the same rights as permanent employees after 12 weeks. Again, government will face the issue of balancing the views of conflicting interest groups, before making changes.
Until it is determined who will be leading the negotiations and what the agenda is, all employers face considerable uncertainty. However, regardless of the promises made during the campaign, in practice whatever government is in power following a Brexit, the likelihood of significant changes in employment law seems low. Brexit does however open up the possibility of some simplification of the more complex regulations which have the biggest impact on business.
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