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Jun

06

Government issues new guidance on workplace dress codes

 

You may remember that in 2015 Nicola Thorp was sent home from work for turning up in flat shoes rather than the 2-4” heels that her employers specified she wear in the workplace. Her case was well reported and resulted in Ms Thorp starting a government petition to legislate against employers imposing a high heel requirement of women at work, claiming that formal dress codes are out-dated and sexist.

As the petition gained more than 150,000 signatures it was debated in the House of Commons on 6th March 2017. The Government refused to implement new legislation on account of the Equality Act 2010 which was said to already make sufficient provision to protect women against discrimination at work.  

As a compromise the Government have now issued new guidance on the subject of dress codes in the workplace which you can read here.

The guidance confirms that dress codes can be a legitimate part of an employer’s terms and conditions of employment but suggests that whilst it is not necessary to have the same code for men and women, the standards imposed should be equivalent and it is best to avoid gender specific prescriptive requirements, such as high heels to be worn by women.

The guide also suggests that a gender specific requirement such as wearing make-up, skirts, manicured nails, certain hairstyles and hosiery is likely to be unlawful. It further summarises the state of place in UK case law which is to say that an employer ought not to restrict the wearing of religious symbols that do not interfere with an employee’s work.

Whilst the legal position remains the same the Government guidance may well be a useful reference for employers. It includes some examples of codes that may not be lawful, a list of frequently asked questions and some further sources of information. Opsium’s dedicated team of specialist employment law advisers are able to offer support on drafting or simply revisiting your employee dress codes to ensure that you are not at risk of discrimination claims.

 


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May

14

Definition of Cancer

 

The Equality Act 2010 ensures employers make reasonable adjustments for employees with a disability and protects them from suffering detriment due to their condition. Cancer is included expressly as a disability but what exactly does this include?

In the case of Lofty v Hamis the Employment Appeal Tribunal confirmed that the ‘pre-cancerous’ skin condition Lentigo Maligna did amount to cancer within the definition of the Act and therefore awarded protection from detriment.

This condition is understood to have the existence of cancer cells sat in the surface of the skin, but isn’t typically deemed cancer as the cells cannot spread to other parts of the body. The EAT have assessed the specific terminology by the Equality Act and have found that cancer was not specifically defined and so it was possible to consider the claimant’s condition to fall within the definition.

This case serves as warning to employers to consider the full facts of an employee’s condition before concluding hastily whether they have a disability or not. There are many pre-cancerous conditions that could result in employees needing treatment, time away from work, adjustments in the workplace and recovery periods; it may not always be obvious whether the condition results in the benefits offered by legislation.

Initial preventative or investigatory medical appointments are not generally considered to be included in the protections of the Act as there is no diagnosis. Appointments for prostate checks, smear tests and breast examinations are examples of appointments that may be necessary to prevent and/or detect cancer cells, however they generally pre-date a diagnosis. Where the employer will have to be more cautious is when there is a discovery of a condition that could result in cancer in the long term; in these cases it is advisable to make allowances for the employee.

Our consultants are ready to advise you on a range of employee management options in light of medical conditions which require reasonable adjustments in the workplace or may result in higher frequency sickness absence.

It is sensible to ensure you have a sound absence/ill health management policy in place and always ensure that an employee feels welcome to share sensitive information with you. The more comfortable your employees feel with you the more trust and confidence you will generate and the better your business can function whilst honouring your responsibilities to employees.


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Apr

25

April 2018 changes in employer rates, limits and payments

 

April brings a raft of changes in the HR arena and although we've previously detailed 2017 and 2018 rates for the National Living Wage and National Minimum Wage, below we have information on the other increases you should be aware of:

Item  2017  2018 
Statutory maternity pay £140.98 £145.18
Statutory paternity pay £140.98 £145.18
Statutory sick pay (standard rate) £89.33 £92.05
Redundancy - cap on a week's pay  £489 £508
Guarantee Pay (per day) £27   £28  
Tribunal award - max. basic award £14,670 £15,240
Tribunal award - max. compensatory award £80,541 £83,682

 

If you have any queries about any of the above changes and how it will affect your business, please get in touch.


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Apr

25

Legal proceedings on the up

 

In July 2017 the Supreme Court made a landmark ruling which abolished Employment Tribunal fees. As expected this has resulted in an increase in legal claims being presented.

In a March 2018 report by ACAS it is shown that since the fees were abolished notifications to the early conciliation process have increased by approximately 500 per week (up from 1700), meaning an increase of 25%.

Where ACAS has been unable to assist employers to settle a dispute through the early conciliation phase the Claimant employee is able to proceed to Tribunal. Statistics show an increase in new claims being submitted to the Employment Tribunal by 57%, compared to the same period the previous year.

The abolition of fees has removed the barrier from employees seeking legal redress and the opportunity to do so is clearly being taken up. Under the circumstances it is ever more essential to make sure your employee management is up to date, legally compliant and that you take advice whenever you face a potential problem with an employee.

This is what we do on a day to day basis for all of our clients, get in touch to find out how we can help prevent those little disputes from becoming big ones. 


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Feb

13

Effective Date of Dismissal

 

Employer: ‘I’ve told my employee they can’t come back to work, what do I do now?’

Employment law adviser:  *Sigh*

The first piece of advice to our reader is…don’t do this! Always take advice before you say anything to an employee that even vaguely suggests they can’t continue working for your business.

In the case of Cosmeceuticals Ltd v Parkin the Employment Appeal Tribunal determined that the statutory definition of the Effective Date of Dismissal is the date that a summary dismissal is communicated to the employee, even where notice ought to have applied and wasn’t given. And in the light of the recent ruling that tribunal fees were unlawful, it’s even more important to follow correct procedures.

In this particular case the employer had concerns over Ms Parkin’s capability in her role. During an informal meeting the employer told her that she would not be able to return to the role she held and made poor attempts to discuss alternative employment for her.  She was later put on garden leave and the employer wrote to her, 28 days after the initial meeting, to confirm her dismissal giving notice of four weeks from the date of the letter.

The Employment Appeal Tribunal found that the written dismissal letter giving notice was not the event that terminated the contract. The words spoken by the employer in the first meeting were sufficient to terminate the contract of employment summarily and without due notice. The fact that the employer later attempted to cover up his error by then following due process was irrelevant and the Effective Date of Dismissal occurred on the date of the first discussion.

This concerns advisers for a number of reasons:

  1. The law requires Employers to show that the reasons for dismissal are fair. An irrational or sometimes emotional reaction to an employee who isn’t performing or has acted in a manner which is unacceptable to your business could result in a detrimental outcome. It is important to take stock, collect your thoughts and check your reasoning before determining the employee’s fate, or you may be at risk of the reasons being objectively unfair.
  1. An essential element to a fair dismissal also requires you to have followed a fair process. Most employers have contractual and policy procedures for capability and conduct matters. It is important that these procedures are followed rather than decisions simply being communicated immediately and without carefully consulting with the employee through a formal process.
  1. Where an Employee is dismissed immediately an Employment Tribunal has the right to take account of the notice period which would have applied had the dismissal been performed correctly. Despite the two year qualifying service requirement to bring most unfair dismissal claims, employers dismissing on the spot may fall foul of notice provisions which take them past the two year service mark, allowing a legal claim to be registered.

This case serves as a sound reminder that employers are best advised to take careful advice on a case by case basis before challenging a problem employee. Once the wrong thing has been said there is nothing your advisers can do to change this. A dismissal can be judged to have taken effect from verbal conversations and attempts to remedy the situation may not work. Timing and approach is everything when it comes to avoiding legal disputes.


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