Author Archives: Adrian Barnes

  1. Veganism and Discrimination

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    Veganism and Discrimination – the Employment Tribunal is to be asked if Veganism is a Protected Characteristic under the Equality Act 2010.

    Currently we have 9 protected characteristics, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, sex and religion or belief. It is the last one of these – religion and belief that is being put to the test – is Veganism a strong enough philosophical belief to meet the test criteria, which say it must be; genuinely held, be a belief as to a weighty and substantial part of human life and behaviour, attain a certain level of cogency, seriousness, cohesion and importance, be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others and it must be a belief, not an opinion or viewpoint based on the present state of information available.

    The person bringing the case is a vegan, of course, who believes that he was dismissed because of his stance on ethical Veganism and the fact that he complained about his employers, The League Against Cruel Sports, allowing pension funds to be invested in companies that allow animal testing.

    This case will be heard in March next year and if successful will add Veganism to the list of recognised philosophical beliefs. In the recent past, some of this type of challenge has succeeded, for instance a judge ruled that a belief in Man Made Climate Change was a philosophical belief. However, other challenges have failed, including, the belief that poppies should be worn for Remembrance Day and a belief that the 9/11 and 7/7 attacks were “false flag operations”.

    We will report back in March when we have the result on Veganism.

    If you need advice on any of the elements of the Equality Act 2010, please call our expert employment lawyers on 01215 856 1625

    The BBC has some more on this article if you click here

     

  2. Sexual Harassment in the Workplace

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    Sexual Harassment and Sex Discrimination in the workplace

    Hardly a day goes by without us hearing about another incident of sexual harassment and sex discrimination in the workplace. Some of these are historic incidents that only come to light when a celebrity is accused, but each week, almost without fail, we will be contacted because of a sexual harassment claim. I would have thought that the prevalence of such issues would be going down, but it is clearly increasing, perhaps because women feel more empowered to step forward than they have previously. Whatever the reason it is clear that all businesses need to have a strong policy and training in place if they want to avoid being responsible for someone else’s actions.

    Vicarious Liability

    If something happens at your business you are going to be responsible for it, under the doctrine of vicarious liability. In other words you are responsible for your staff member’s actions. Your only defence or mitigation is to be able to show that you took appropriate measures to make sure that all of the team were aware that what they were doing was wrong, that you had a policy in place and that you had provided sufficient training.

    What constitutes harassment?

    There is a very clear definition or what constitutes harassment in the Equality Act 2010, which tells us that it is any unwanted conduct of a sexual that violates the dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. So we can see from this that there is a fairly wide scope anything from unsubtle comments to unnecessary touching. Take a look at this recent report of a case involving a young lady at Pizza Hut who picked up £16,000 for unwanted attention –  click here to see the report at Personnel Today

    Our own recent case

    I can’t reveal names on one of our recent cases as the matter was anonymised by the Employment Judge, but we have a haulage company that offered a female driver a very well paid job, what they didn’t explain was the extras that may be required – after rebuffing her bosses advances and being told that she needed to be more “adaptable”, the driver was fired. Needless to say that the unanimous verdict of the tribunal was that there had been sexual harassment and that the dismissal was sex discrimination. In this case the claimant won on sexual harassment and sex discrimination in the workplace.

    In the news

    There are dozens of cases of harassment in the news, from the high profile personalities to companies such as O2, Nike and various councils and while you might think that as a company you are not sexist in any way, can you be completely sure that the same applies to all of your staff.

    How can we help?

    Premier Legal can provide robust policies and procedures as well as diversity training for your staff – call us on 0115 856 1625 to discuss your needs.

    Click on the highlighted titles to see previous articles on Sexual Harassment and an Expensive Sexist Comment

     

  3. Changes coming for the Law on Tips?

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    The Law on Tips

    Can we expect legislation for how restaurant’s deal with tips left for waiting staff?

    Teresa May has told conference that there will be a change in the law on tipping in restaurants – Jeremy Corbyn says it was his idea, so finally something that both main parties agree on.

    There has been a fair bit of press over the last couple of years about how tips are accounted for and who gets them – does a tip go to the waiter or to the restaurant. Most of us probably expect that the tip goes straight to the waiters, but quite often this is not the case and some of the money goes to the restaurant either as an admin charge or for some other reason.

    All of tip money to go to staff

    There are several ways that tips can be split among the staff, but the new proposal from the PM is that all of the money provided as tips must go to the staff and nothing is to be held back for the restaurant. It has been illegal for some time to use tips to make up salaries to the National Living or Minimum Wage, but that has not stopped some businesses from taking a cut. Announcements at conference may not always find their way into legislation, but this is something that will be popular and something that the parties agree on, so there is every likelihood that we will see action on this in the future.

    Current Law on Tips

    It might be considered as interesting that HMRC considers tips to be income and, as such, taxable, but they are not considered income for the purposes of the National Living or minimum Wage, so tips, gratuities, service charges and cover charges do not count towards minimum wage pay. This is regardless of whether they are paid through your payroll or are given direct to workers by customers or a tronc master.

    It will be interesting to see how any legislation is framed and how this sits with any arrangements that your business may have currently, we will, of course, let you know as soon as any Bill is put forward.

    There is a fairly interesting note about the changes to the law on tips on the BBC New website, which you can see by clicking here

    Premier Legal’s experts can advise on this or any other employment issues, just call us on 0115 856 1625

  4. Employment Status

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    Employment Status – the journey continues.

    Addison Lee v Gascooigne

    In the latest case on Employment Status the Employment Appeal tribunal has backed up the first tier tribunal in their assertion that Addison Lee cycle couriers are Workers within the meaning of Regulation 2 of the Working Time Regs.

    This means that the couriers are entitled to holiday pay as Workers and they are not a business in their own right. The tribunal had decided that when the couriers were booked onto their App, they were obliged to accept the job sent to them, this suggested a mutuality of obligation, they also stated other facts which prompted their belief that the courier was a Worker and in their conclusion the tribunal said,

    “This was a working arrangement which did not lend itself to the interpretation which the armies of lawyers tried to promote. The claimant was part of a homogenous fleet and a homogenous operation which promoted Addison Lee to customers and looked after its own. There is nothing wrong or bad about that, it simply does not fit with the employment status for which the respondent contends.”

    Addison Lee appealed stating that the Tribunal had erred in law and that their multi factorial assessment that the Claimant was a worker was perverse.

    The Employment Appeal Tribunal agreed with the first tier on all counts in a ruling which means that these cycle couriers will be entitled to holiday pay in the same way as employees. It seems clear that the courts are taking a stronger view on employment status, we would therefore recommend that you look closely at any so called ‘casual workers’ to see if they are entitled to holiday pay etc.

    If you are in any doubt at all, give our expert team a call at their Nottingham Head Office on 0115 988 6211 and they will be pleased to assist.

    you can read the full case by clicking here 

    Previous blogs on Deliveroo can be found here

    And a previous post on Employment Status can be found by clicking here

    Premier Legal LLP offer a first class retainer scheme backed by the award winning insurance company ARAG – Premier Total Care can provide peace of mind for all HR and employment law problems – call us to get a quote for your business.

  5. GDPR

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    General Data Protection Regulations – GDPR

    General Data Protection Regulation (GDPR) on european union flag with date

    The General Data Protection Regulations (GDPR) are the biggest upset to data protection since the Data Protection Act of 1998.

    One of the important things to note is that the sanctions for non-compliance have increased from the current maximum level of £500,000, which most people or businesses would think was pretty hefty anyway, to a staggering €20,000,000 (around £17m) or 4% of a business’s annual worldwide turnover, whichever is higher. There are also criminal sanctions for holding data incorrectly or breaching the data protection rules. Then add to this the fact that individuals can now claim compensation for loss caused by breaches or inappropriate use of data. They can also claim compensation for distress caused by a breach – injury to feelings.

    The General Data Protection Regulations are a huge work of legislation which covers a raft of areas where data needs to be protected, from online marketing to a ‘right to be forgotten’ or to be purged from data held. It affects relationships between customers, suppliers, website users and those on marketing lists.

    The new legislation comes into force on 25 May and all businesses must be ready by then. Perhaps I should say that although this is EU legislation it will not be affected by Brexit as there is a Bill going through parliament to mirror the EU legislation.

    Obviously, we are concerned with how the General Data Protection Regulations affect employers and employees and any arrangements that HR need to make to ensure compliance. As employers you will hold a range of information covered by the regulations including, information about health, pensions, payroll, loans, CCTV images, emails, disciplinary and grievance processes. You may also be holding data about previous jobs, references, qualifications etc.

    You may also hold data about other people – next of kin, information on employee’s children their names and birthdays.

    There may well be very legitimate reasons for holding data – it would, for instance, be impossible to pay someone without holding certain data, but the new legislation makes it clear that you have to have a reason for holding data, you have to have positive consent to hold it and you must not hold it for longer than necessary.

    Previously we have added a simple clause to contracts so that an employee, is giving consent to data being held, this is no longer to be considered a safe method of obtaining consent. Now employees need to offer ‘informed consent’ which is freely given, unambiguous and specific to each area of data being held. But that is not all, we must also allow consent to be removed at any time.

    Previously employees could make a subject access request in order to see what information is being held, this request had a cost of £10 attached and employers had 40 days to comply. That £10 cost has been removed and employers must comply as soon as possible, but no longer that 30 days.

    But complying with the request may not be a simple as you would expect, you cannot simply send a copy of the personnel file – imagine that you have been sent an email from an employee apologizing for being late as they had to pick up little Johnny as he was sent home from school with head lice. You now have data about Johnny, which you might pass to a business partner, line manager and HR – could you find all of those emails if you needed to? Consider how much more difficult it might be if the emails were on personal smart phones.

    This small article is simply designed to raise awareness about the new GDPR legislation, it is not designed to make you compliant with the Regulations.

    Premier Legal is holding seminars and webinars about the GDPR and can provide a GDPR for Employees policy for your business, we can advise on the changes that you need to make to your contracts of employment to ensure that they are compliant and help you with your GDPR Audit.

     

    You can find more information about the GDPR at the Information Commissioners Office, by clicking here.

     

    Please call Premier Legal LLP on 0845 070 0505 or at our Nottingham Head Office on 0115 988 6211 where someone can help you with any queries that you may have. Alternatively please send your query to admin@premier-legal.co.uk and will get back to you as soon as possible.

     

     

  6. National Living & National Minimum Wage

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    Changes to the National Living & National Minimum Wage

    The new rates for the National Living & National Minimum Wage were set out in the Autumn budget and follow the recommendations of the Low Pay commission. Therefore, from April 2018 the new rates will be as follows;

    Apprentices will get £3.70 per hour

    16 -17 year olds will get £4.20 per hour

    18 – 20 year olds will get £5.90 per hour

    21 – 24 year olds will get £7.38 per hour and under the National living Wage

    those over 25 years old will be entitled to £7.83 per hour (an increase of 4.7%)

    You can currently check out all of the old rates by clicking here, no doubt the site will get updated with the new rates in the NewYear.

    If you need any further information on this or any other employment related issue, please give us a call at our Nottingham Head office on: 0115 988 6211

  7. Sexual Harassment

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    Sexual Harassment in the Workplace

    The TV and newspapers are absolutely full of sexual harassment claims from both men and women, but do we know when workplace banter becomes harassment or when it is okay to touch a colleague?

    The definition of sexual harassment, as far as the workplace is concerned, is found in the Equal Act 2010 which says sexual harassment is, unwanted conduct of a sexual nature which has the purpose or effect of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. But what does this mean in practice? Essentially any kind of suggestive remark, any indecent remark, unwanted touching and of course suggestions that sexual favours are required for promotion or even to keep a job are all forms of sexual harassment.

    A recent survey found that over 50% of women had been subjected to some form of sexual harassment, but only 20% of those women ever report the incident. It is important that women, and for that matter men, feel safe and valued in the workplace and the laddish behaviour of the past must be consigned to history and not perpetrated in a modern workplace. Therefore, your business needs to have a culture where employees feel that they can complain and that something will be done about it.

    What can you do as an employer?

    Providing robust diversity training will go some way to alleviate the problem and will give employers a certain amount of legal deniability if they have rogue employees. But without following it up and making sure that new employees also understand the boundaries all employers face becoming vicariously liable for their employee’s actions. All businesses also need to have policies for dignity at work in their staff handbook or policy suite.

    An employee can take a claim of sexual harassment to the Employment Tribunal while they are still working within the business, but we would hope that once they had raised a grievance under the company procedure the matter would have been successfully dealt with so that the Tribunal was not necessary.

    Premier Legal LLP have many years experience in providing Diversity and Dignity at work training either at our regular seminars or in-house for businesses. We can also provide staff handbooks and bespoke policies. Please call out Nottingham Head Office on: 0115 856 1625 for more information.

     

  8. Parental Bereavement

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    Parental Bereavement

    A new Bill has been placed before parliament, that will mean employers must pay for two weeks of bereavement leave if a child of the family dies.

    The Parental Bereavement (Leave and Pay) Act 2017 will provide that employees who have a child (under 18) that passes away will be entitled to two weeks of paid leave, which can be claimed back from the government in a manner similar to statutory maternity pay.

    Statutory Bereavement Pay will be available to employees with 26 weeks of service and who have parental responsibility for the child. The leave must be taken by 56 days after the date of death.

    This is a horrible subject to write about, and I’m fairly sure that most employers would take a sympathetic view in such circumstances, but this is the first time that the government has sought to codify bereavement leave and pay.

    I will provide further information when the Bill has been through its parliamentary meanderings and comes out as an ACT and I will et you know when it becomes legislation. If you would like to see the Bill in its current form, please click below.

    https://publications.parliament.uk/pa/bills/cbill/2017-2019/0014/18014.pdf

    When this legislation is enacted it will mean that staff handbooks will need to be updated, those of you on our Premier Total Cover scheme will, of course get the updates free of charge. If you would like further information about the Premier Total Cover scheme or any other aspect of Employment Law, please contact us at our Nottingham Head Office on: 0115 988 6211.

    Adrian Barnes

  9. Dogs and Sick Leave

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    Leah & Evie

    Dogs and Sick Leave

    Okay, so this may be seen as an excuse to put a picture of my dog Leah (the blond one) and her friend Evie into a blog, but the latest news from the Italian courts is that dogs are part of the family. Most of us that are dog lovers would probably agree, but one dog loving Italian university professor has gone one further and persuaded a Judge that she was entitled to claim sick pay for time off taken to look after her ailing pet as he recovered from an operation.

    The Judge accepted her case that her employer, Rome’s La Sapienza University, should count her two days off under an allowance for absences related to “serious or family personal reasons” and that she was entitled to be paid for the two days off.

    The case had been taken by Europe’s largest animal rights group the Anti-Vivisection League, whose president Gianluca Feicetti, said “It is a significant step forward that recognised that animals that are not kept for financial gain or their working ability are effectively members of the family”.

    I doubt that this ruling is likely to have too much impact in the UK as our ‘Time Off for Dependents’ provision is generally unpaid, of course that may be different if you have a contractual right to time off for ‘family’ purposes.

    Adrian Barnes

  10. Age Discrimination

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    Age Discrimination Case

    Here we have yet another case where a director chose his words badly in what will, no doubt, be a costly exercise for Henworth Ltd t/a Winkworth Estate Agents.

    Ms Gomes was just under 60 years old and happily working at the estate agents as an administrator. The agency was obviously trying to appear more youthful and seemingly didn’t value the experience that age may bring. Anyway at a meeting Ms Gomes was told by the director that she “might be suited to a traditional estate agency”, that ‘this marriage isn’t working” and she should “sleep on it and decide what you want to do”.

    The Employment Tribunal agreed that the first comment would not have been made to a younger employee and was therefore direct age discrimination. However, those of you that read the transcript will also see that the Tribunal went on to say that even if they were wrong about direct discrimination, the comment certainly constituted age related harassment.

    As the Claimant had resigned her position because she felt so unvalued she also had a Constructive dismissal Claim and the second two statements were seen by the tribunal as being clear evidence that the Claimant was no longer wanted at the business.

    Ms Gomes had given evidence that the unwelcome comments had the effect of violating her dignity, she felt that the director was out to humiliate her. Ms Gomes said that she was so upset and she couldn’t get the words out of her head, the whole episode made her ill and she had to go on sick leave.

    The employment tribunal will consider remedy at a future hearing.

    Click here for the full case transcript

    This is another in a row of cases where ill thought out comments have caused offence and even made an employee unwell. It is extremely important that all employees from directors down have diversity training..

    If you wish to discuss diversity training for your team or any other element of employment law, please call our employment law experts at our Nottingham Head Office on: 0115 988 6211