Bright light!

Employment Law Newsletter - February 2018


In this issue ...

  Snow days   Minimum Wage increase  
  Should job applicants disclose their pregnancy?   Annual Increase in Tribunal Awards  
  Bonus and maternity   Do you have to tell employees the real reason you're dismissing them?  
  How do you deal with a grievance raised during a disciplinary process?  

Snow days

Some of you may have been snowed in and are reading this newsletter from the comfort of your lounge. But what about those opportunists who could have got to work but lack the will? Where do you stand?

Do I have to pay people who can't get to work?

No, but consider whether you should. You are not obliged to pay employees who cannot fulfil their contract of employment by doing their work. Even though they may be blameless, that will not help them. However, what you save in wages may be outweighed by loss in morale, damage to your reputation and a perception that you've acted unfairly.

Of course, if employees are working from home you should pay them their normal wages.

What if I need someone to work?

Many jobs can be done from home so you should encourage those that regularly do so not to travel to work in severe weather conditions. But take care with employees who don't work at home and whose contracts don't provide for it. Insisting that they do so may constitute a unilateral variation of their contract of employment requiring consultation in advance of any change.

You should also consider the health and safety aspects of homeworking before imposing a requirement: some employees' homes will simply not be suitable to turn into a temporary workplace. Remember to safeguard your business's confidentiality and comply with data protection requirements.

What if I close the work place?

If an employee is unable to work because you have closed the premises, this will in effect be a period of lay-off. You should pay your employees their normal wage, unless there is a contractual provision allowing for unpaid lay-off, or the employees agree to being laid off without pay.

What about parents of children whose schools have closed?

They have the statutory right to a reasonable period of unpaid time off work because of unexpected disruption to the care of their child. They must tell you that they are taking advantage of this right, the reason for it and how long they will be off.

What you should do

Implement an adverse weather policy to reduce scope for confusion.

Consider whether it is necessary for employees to attend the workplace at their normal time and whether there are alternative ways of working.

Decide how you will treat absence or lateness that is caused by severe weather or transport disruptions.

Be aware that employees who are absent from work without authorisation are not entitled to be paid, but consider taking a lenient approach.

Investigate an employee's reasons for non-attendance before stopping his or her pay.

Treat all employees consistently to avoid the risk of discrimination claims.


Should job applicants disclose their pregnancy?

Surprisingly a survey of senior decision makers conducted by the Equality and Human Rights Commission found that six in ten believe a woman should have to reveal she is pregnant during recruitment. Almost half thought it reasonable to ask women whether they have young children and a similar proportion thought that women should work for a business for a year before having a child.

A woman does not have to tell you that she is pregnant or discuss her plans. So how do you stop these attitudes tainting your recruitment and exposing the business to costly claims of sex and pregnancy discrimination?

What you should do

Take care when preparing the job description, person specification and job advertisement that it does not contain any words or phrases that could be challenged in law.

Pinpoint the precise skills, experience and qualifications for the job so that managers can be objective when assessing candidates.

If you require personal information, ensure that it is relevant to the recruitment process or the job.


Bonus and maternity

This is the time of year when, hopefully, you begin to calculate your profit and decide how that profit will be shared with your employees. But what about employees who are, or have been, on maternity leave?

Is it remuneration?

An employee on maternity leave is entitled to the same terms and conditions of employment as if she was at work, other than remuneration. A bonus will be remuneration if it is a deferred contractual payment for work done. Such as a payment for performance or attendance rather than to reward or encourage retention or loyalty. In that case, the bonus could be paid pro rata with the weeks of maternity leave excluded, save for the two week period of compulsory maternity leave that the law requires all working mothers to take immediately after the birth.

If the bonus is not remuneration because it is not a contractual payment and it is not pay for work done during the bonus period it will be payable in full. This would apply to a loyalty payment.

What if bonus is discretionary?

There is an implied obligation that you will exercise your discretion rationally and in good faith. Excluding an employee from a bonus altogether because she is, or has been, absent on maternity leave may amount to pregnancy and maternity discrimination because it is pregnancy-related. Consider a pro rata calculation.

What you should do

Draft bonus scheme rules that specify that they are not contractual.

Decide the eligibility requirements.

Set out the individual and business performance conditions that must be met for a bonus to be paid.

Decide how you will treat employees on maternity leave or otherwise absent.

Review bonus payments to ensure none have been made arbitrarily.


Minimum Wage increase

The National Minimum Wage (Amendment) Regulations 2018 have been laid before parliament.

The annual increase in the minimum wage and national living wage with effect from 1 April 2018 will be:-

25 years or older    £7.83 (previously £7.50)
21-24 years    £7.38 (previously £7.05)
18-20 years    £5.90 (previously £5.60)
under 18 years    £4.20 (previously £4.05)

The accommodation offset will be £7.00 per day (previously £6.40).


Annual Increase in Tribunal Awards

The Employment Rights (Increase of Limits) Order 2018 has been laid before parliament and comes into force on 6 April 2018.

It contains the normal annual increases to maximum and minimum tribunal awards.

The main increases are:

maximum week's pay (for redundancy payments and the unfair dismissal basic award): £508 (currently £489)
maximum compensatory award for unfair dismissal: £83,682 (currently £80,541).

Do you have to tell employees the real reason you're dismissing them?

Trust and confidence Sometimes you may dismiss an employee with short service but avoid telling them the real reason for your decision. You may say you no longer require their post or you're moving in a different direction when in fact they have simply been incompetent and you want someone better. This may be to protect their feelings or to avoid confrontation.

In Rawlinson v Brightside Group Limited the employer told its legal counsel that his work was ending because they would be using an external provider not because his work was poor. In reality the mistakes he made during his five months' service had made his position untenable. Mr Rawlinson resigned because he thought TUPE applied. The EAT said that the employer had breached the implied term to maintain trust and confidence by giving a misleading reason for dismissing Mr Rawlinson. Employers are not obliged to give reasons for dismissal to those with less than two years' continuous service but if they do, it should be in good faith. The tribunal awarded him his notice pay.

What you should do

If new employees are underperforming, discuss and record your concerns. Tell them the standard that you require.

Act fairly by giving the true reason for dismissal. Those with short service can bring claims for discrimination, automatic unfair dismissal or breach of contract. An audit trail will provide protection from those claims.


How do you deal with a grievance raised during a disciplinary process?

Many employees respond to a disciplinary process by raising a grievance. You may suspect that your employee is merely muddying the waters to avoid dismissal. There are three common scenarios.

A grievance about the disciplinary process. This can be dealt with as part of the disciplinary hearing or appeal. If the grievance is raised after the disciplinary process is complete and merely repeats an earlier allegation that has been considered and dismissed then you may refuse to discuss it further.

A grievance about the lead up to the disciplinary process. Your employee may claim that they have been bullied by the manager who started the disciplinary process. There may be times where the allegations are so serious or credible that it would be unreasonable to proceed with the disciplinary issue. However, in most cases the allegations can be considered during the disciplinary process as a defence to the allegations or mitigating factors to consider when deciding what, if any, sanction to apply.

A grievance unrelated to the disciplinary process. Save for cases where the matter raised is so serious that it overshadows the disciplinary process, you can run the two procedures in parallel without delaying the disciplinary matter.

Points to remember

There is no legal requirement to postpone a disciplinary process in order to deal with a grievance. Assess each case on its merits.

Consider whether you can resolve the grievance as part of the disciplinary or appeal hearings

If the two process are unrelated, run them in parallel.


Just a quick reminder that Collinson Grant does a lot more than advise clients in all sorts of organisations about the complexities, constraints and opportunities presented by employment law. Our consultants also provide support regularly on: employee relations, reward, restructuring, recruitment, leadership and HR strategy. And we have well-honed skills in operations: managing and reducing costs, organisational design, process improvement, procurement and managerial controls. Do ask if you would like to know more.


If you would like to discuss this or any other issue facing your organisation please speak to your usual contact at Collinson Grant or Peter Howarth on 0161 703 5600

Although care has been taken in the preparation of this Newsletter, Collinson Grant cannot accept responsibility for errors, omissions or advice given. Readers should note that only Acts of Parliament and Statutory Instruments have the force of law and only the courts can authoritatively interpret the law.