Injustice and the rich and famous:
Even the rich and famous are subjected to sex discrimination and equal pay issues. I would like to say that I am surprised, but after 20 years as an employment lawyer in the City, sadly I am not. There are endless women who have passed through our offices to sign settlemt agreements in the knowledge they will not be the ones to fall on their sword to put the world right. The recent BBC publication of its stars earnings has shown that its top male stars earn much MUCH more than their female colleagues. For example, Huw Edwards earned between £550,000 to £599,999 whilst Fiona Bruce earned between £350,000 to £399,999 and- surprise surprise, they both perform similar roles being newsreaders.
Employers must be warned and reminded (repeatedly) that they are under a duty to ensure that their employees who do equal work are paid the same amount regardless of gender. If not there is a risk of an equal pay and possibly a general discrimination claim being made.
Employers can only pay a man more than a woman for doing equal work (and the same principal applies vice versa), if they can prove that the variation in pay is due to a material factor which is not directly or indirectly discriminatory. This may include past performance seniority and length of service.
It is also worth noting that Employers with 250 or more employees are now under a duty to provide gender pay gap reports, with the first reports due to be published in April 2018. If you would like my summary notes on gender pay gap reporting, email me for a copy on email@example.com
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The #PrideInLondon parade provides the perfect backdrop to our recent sexual orientation discrimination victory.
THE SCENARIO: a senior employee in a highly sensitive industry is subjected to sexual orientation discrimination at work DESPITE being the person designated to champion gay and lesbian inclusion in the organisation.
THE PROBLEM: Even though they had years of service and consistently strong performance, they were overlooked for promotions and pay rises and worse still, tricked into accepting a demotion on a false premise. This situation left our client with no option but to seek legal representation.
THE SOLUTION: We assisted in formulating a strategy which led to drafting a detailed formal grievance and this led to the negotiation of a significant financial settlement enabling the person to move on and progress their future career.
Now that, in my book, is a win win! If you have an issue at work – employer or employee, call us on 0207 374 6546 or email firstname.lastname@example.org
Dealing with really, I mean REALLY problematic employees are where we shine the most. We recently successfully defended a company client against a claim for unfair deduction from wages. Seems like a small matter – it wasn’t. This was the first part of a mammoth claim.
THE PROBLEM: Our company client sent the employee home after she provided a fit note confirming she was fit for work but within the note, certain conditions and adjustments that were suggested could not be fully met. When the employee returned to work, she was visibly unwell and there were other suggestions of a potentially catastrophic episode.
THE ACTION: All aspects taken together including the fact the recommended adjustments were not possible led to her being required – against her wishes – to remain on sick leave until a further assessment of her health could be undertaken. And this is the key: while on sick leave, the employee was paid Statutory Sick Pay. She lodged a claim at court saying that it was incorrect for her employers to send her home in these circumstances and that paying her SSP amounted to an unlawful deduction from her normal pay. What do you think happened next…?
THE OUTCOME: We won. We were able to successfully show that law and process had been correctly applied and her claim failed. But that was not the real win.
WHY IT MATTERS: Real wins – the true benefits in law are mostly invisible. We knew this was the tip of the iceberg (literally) and winning this claim meant the gargantuan claim to follow was withdrawn. That unmeasured benefit is priceless. Standing your ground as an employer is important because the whole company is watching you. If weakness is detected, not only would this employee have brought her further claim, but so often I have seen how paying off too readily can lead to a flood of speculative claims from other employees – and no employer wants that do they…
The current law in England and Wales states that the majority of employees over the age of 18 should not work more than 48 hours per week. This is calculated by the average of number of hours worked over a 17 week period. This calculation does not include lunch breaks, annual leave, maternity/paternity leave or sick leave. The calculation also does not include work employees have taken home of their own will, or time spent travelling to and from work.
However, employees are able to work more than 48 hours if they wish too, and such a request should be made in writing. An employee can also give notice should they wish to stop working more than 48 hours per week.
It is worth noting that certain jobs are not subject to the maximum limits of 48 working hours per week, including emergency service workers and drivers of heavy good vehicles.
Regulation 13(9) of the Working Time Regulations confirms that workers do not have the right to carry over their statutory holiday at the end of the relevant leave year. But what happens to the worker’s entitlement to holiday pay under regulation 16 when their right to take the holiday is extinguished?
In Fraser v South West London St George’s Mental Health Trust 2012, the EAT’s view was that workers are only entitled to statutory holiday pay under regulation 16 if they take statutory holiday or give notice to their employer under regulation 15 that they wish to take such holiday. It was held to be contrary to the purpose of the regulations if workers could receive statutory holiday pay regardless of whether they take time off, as this would create a financial incentive for them not to take holiday.
Therefore, the current position is that workers who work throughout a leave year and thereby forego that year’s statutory holiday entitlement will not receive a payment in respect of that entitlement when their employment terminates. However, there are conflicting cases on this matter which were not overruled by Fraser, and therefore this is an issue that remains open to debate and challenge in the court.
The position is likely to be different where workers have not taken their holiday in a leave year owing to maternity or sickness the opinion of the Advocate General in King v Sash Window Workshop Ltd (C-214/16) was that a worker should also be entitled to carry over their unused holiday where they have been prevented or discouraged from taking it by their employer.
It should be remembered though that on termination of employment, a worker is entitled to pay in lieu of unused statutory holiday from their final leave year.
With the summer holidays approaching, there are many issues for employers to consider when intending to offer work or internships to students.
Are students on work experience entitled to be paid National Minimum Wage (NMW)?
Ultimately this will depend on the arrangement. Work experience students will not be entitled to receive NMW if they are:
- voluntary workers, provided certain conditions are met
- students under compulsory school leaving age; or
- a higher or further education student who, as part of their course, undertakes a work placement of up to one year.
Additionally, Government guidance states that a person who is simply job shadowing (i.e. observing but not undertaking any work) will not be entitled to NMW.
If none of the above exemptions apply and a person qualifies as a “worker” and they will be entitled to the National Minimum Wage, and will have other statutory employment rights.
What if I do not pay national minimum wage?
Employers cannot avoid paying NMW. Employers who are found not to be paying NMW could face the following action:
- Being required to make backdated payments
- Significant financial penalties. These can be as high as 200% of the total underpayment to a particular worker, subject to a maximum of £20,000 per underpaid worker
- Criminal action.
- Being publicly named on the Government website
Claims for unlawful deductions from wages or breach of contract can also be brought by the individual worker or employee if they don’t receive the NMW.
The term “internship” is often used to describe time spent working for an employer without pay, with the goal of getting experience of a particular workplace or role. However, there is no legal definition of “intern” and interns have no distinct employment status.
As such, whether or not they are entitled to be paid National Minimum Wage will depend on whether they fall within the definition of a “worker” and if any of the exemptions outlined above that might apply.
What employment rights do fixed-term summer staff have?
If a business employs staff directly on a fixed-term basis for the duration of the summer, these employees have the same rights as permanent employees. In addition, they have the right not to be treated less favourably.
However, the nature of fixed-term employment means that if they are only employed for the summer, they will not accrue sufficient service for certain claims, such as unfair dismissal, which requires at least two years service.
What about agency workers?
Temporary staff engaged through an agency will have the benefit of certain rights under the Agency Workers Regulations 2010 (“AWR”) from day one of their placement. These include the right to use staff facilities, and the right to information about any job vacancies.
If temporary workers continue to work in the same role for twelve weeks, under the AWR they become entitled to receive the same basic working and employment conditions as equivalent staff members employed by the hirer directly. These conditions encompass pay and bonuses, working hours, holiday and any rest periods or rest breaks.
The Sexual Offences Act 1967 somewhat decriminalised homosexuality in England and Wales. To mark the 50th anniversary of this, we highlight some of the key milestones for workplace protection against sexual orientation discrimination.
30 April 1996:
The European Court of Justice (ECJ) delivered its decision in P v S and Cornwall County Council. The ECJ found that an employee who was about to undergo gender reassignment had been wrongfully dismissed.
It was the first piece of case law, to prevent discrimination in employment because someone is transgender.
17 February 1998:
The ECJ delivered its decision in Grant v South-West Trains Ltd.
The issue in this case was whether or not it was sexual orientation discrimination for the employer to limit travel concessions to “spouses and dependants”.
The female claimant argued that the rule discriminated against her because her female partner could not benefit from this.
Then ECJ decided that European protection against discrimination on the basis of sex did not extend to sexual orientation.
The injustice of this decision was a factor in a ban on sexual orientation discrimination being included in the Equal Treatment Framework Directive.
27 November 2000:
The EU Equal Treatment Framework Directive recognised a legal framework for equal treatment in employment and occupation.
The Directive required EU member states to prohibit discrimination based on sexual orientation etc.
1 December 2003:
The first UK legislation dealing with sexual orientation discrimination in the workplace was introduced.
The Employment Equality (Sexual Orientation) Regulations 2003 prohibited employers from committing direct and indirect discrimination, victimisation and harassment “on grounds of sexual orientation”.
5 December 2005:
The Civil Partnership Act 2004 was passed.
The Act gave same-sex couples the right to enter into civil partnerships, providing them with similar rights to married heterosexual couples.
The Act meant that employers that offered benefits to individuals dependent on marital status also had to offer the same benefits to individuals in civil partnerships.
30 April 2007:
The Equality Act (Sexual Orientation) Regulations 2007 finally came into force.
Employees’ religious beliefs can clash with the requirement for organisations not to discriminate against customers, meaning that these regulations can be relevant in employment disputes.
19 December 2008:
The Court of Appeal in English v Thomas Sanderson Blinds Ltd held that sexual orientation discrimination does cover homophobic abuse against a man who is not gay and who is not perceived to be gay.
This was important widening of discrimination protection. It recognised that homophobic taunts can be directed at heterosexual employees as a form of insult and that such taunts cannot be excused just because of the victim’s heterosexuality.
15 December 2009:
Cases involving sexual orientation discrimination have revolved around the clash between service providers’ religious beliefs and the right of service users not to be discriminated against on the basis of their sexual orientation.
The first such case saw a Christian registrar claiming religious discrimination after being disciplined for refusing to conduct civil partnership ceremonies between same-sex couples.
On 15 December 2009, her claim was ultimately rejected by the Court of Appeal in London Borough of Islington v Ladele and Liberty.
1 October 2010:
Equality legislation was consolidated into one piece of legislation, the Equality Act 2010.
“Sexual orientation” was one of nine “protected characteristics” under the Equality Act 2010.
The Act prohibited employers from committing direct and indirect discrimination, victimisation and harassment because of someone’s sexual orientation.
Importantly, the Equality Act 2010 enshrines in legislation protection against: associative discrimination and perceptive discrimination.
13 March 2014:
The Marriage (Same-Sex Couples) Act 2013 extended marriage to same-sex partners in England and Wales.
The Act meant that employers that offered benefits to individuals in heterosexual marriages and civil partnerships also had to offer the same benefits to individuals in same-sex marriages.
The government report into work practices, known as the Taylor Review, is now due to be produced. Amongst the key recommendation, which has reviewed modern working practices and in particular the ‘gig economy’, is to end ‘cash-in-hand’ and for firms who have a “controlling and supervisory” relationship with workers to pay a range of benefits.
One of the key recommendations in the report is for there to be a new category of worker called a “dependent contractor”, who would be defined differently to the self-employed. The purpose of this is to help boost rights of workers, in particular with regard to flexibility and pay.
It is expected to recommend the government rewrites employment law so any self-employed worker who is under “control” and “supervision” should be given holiday pay, sick pay and, in most cases, receive the minimum wage. The early indications are that the report will be endorsed by the current Conservative government. Critics of the report however say it does not go far enough, and given the current hung parliament, it is unclear as to whether the all of the recommendations will be implemented into law.
Something which Employers are becoming increasingly aware of is the influence that “unconscious bias” can have on decisions they make. The risk for employers is that if this unconscious bias relates to a protected characteristic, such as gender, disability, age or race, it could be discriminatory.
In employment terms, Unconscious bias occurs when one person gives preferential treatment to another who looks like them and/or share their values. The issue employers face is that this bias can influence decisions when dealing with recruiting or promoting staff. A common effect of this is that there is a less diverse workforce, as employers will often overlook certain individuals in favour of those who share similar views, are from a similar background or share similar characteristics.
The risk is that where unconscious bias is against a protected characteristic, it can be discriminatory. For example, if during a promotion process an employer ignores the skills and experience of a candidate who is a different gender than them and appoints another candidate who is the same gender, there is a risk this could be seen as discriminatory.
One way to ensure that unconscious bias is avoided is to take time when making important decisions. It is also beneficial to justify decisions by recording the reasons for them being made, particularly when it comes to recruitment and promotions. Another practical tip is to ensure that interviews take place with more than one person, and should ideally include individuals from different backgrounds to help reduce bias. It may also be beneficial for employees to undertake unconscious bias training, particularly for those involved in recruitment.
The introduction of a written English language test for private hire drivers has been delayed after Uber won the right to appeal.
Under the Transport for London (TFL) plan, driver’s licences would be revoked if they had not passed the test by 30 September 2017. However the Court of Appeal has said it will allow Uber to appeal, after they argued that nearly a third of drivers in London might not be able to renew licences.
The Appeal hearing is now scheduled to take place on 20 February 2018, meaning the policy will now not be introduced to 9 April 2018, subject to the outcome of the hearing.
Uber claims that the proposals would have a disproportionate impact on drivers from countries where English is not the first language and would result in indirect discrimination on grounds of race and nationality. They have already succeeded in challenging TFL’s plan to exempt drivers from English-speaking countries on grounds of discrimination.
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The Penguin Guide to Employment Rights will help management and workers alike to navigate this increasingly complex and important area of lawCherie Booth
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I was particularly impressed by you and your team as all of you communicated your respective knowledgeable and experience in a pragmatic way, which, in my personal experience is not always the case. I have attended other legal firm’s seminars and although the content is usually good it is frequently presented using too much ‘lawyer speak’, often assuming the very worst outcome including extreme escalated litigation, which for the majority of cases is not the most likely outcome. I realise that we as HR practitioners, need to be aware of worst case scenarios but sometimes there is too much emphasis on this. “Suzanne Prince, HR Contractor
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Employment Law Seminar 6th March 2014 – The two lady speakers were great. It was really helpful having questions from the floor and they both provided really helpful case studies of the recent cases they worked on. Overall to cram all that information in just two hours, it was a good event and would like to attend more!Chetna Kerai, NatCen Social Research
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Remziye was very helpful in clarifying my legal position in the debate with my employer over redeployment vs. retirement vs. redundancy. Even though we work on opposite sides of the world and in different time zones, she always responded to my queries, quickly absorbed the volumes of data on company policy and procedures which I sent her and promptly provided me sound practical advice to help achieve my objective. The whole tone of the conversation changed when my employer recognized that I had engaged professional outside help and there is no doubt in my mind that without the intervention of Partners Employment Lawyers, the debate would have been more protracted and likely more contentious.
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