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Employment Law Newsletter - October 2017


In this issue ...

  Are sleep-in workers entitled to the National Minimum Wage?   You don't need a man to cater to an all-male event  
  Can using the word 'traditional' be ageist?   Parental Bereavement Leave  
  Employment Tribunal Fee Refund Scheme launched   Can an investigation be too thorough?  

Are sleep-in workers entitled to the National Minimum Wage?

The National Minimum Wage (NMW) is the minimum amount an employer can legally pay a worker. If you pay less than this HMRC can act to require you to make good any shortfall, penalise you with a fine of double that underpayment and then name and shame you. Those of you in the social care sector wrestle with the question of whether your workers who sleep in to carry out their duties are entitled to the NMW for the full duration of their shift, or only when they are awake and carrying out relevant duties.

Recent guidance from the courts and the government has been conflicting and confusing. That is unsatisfactory, given the potential damage to your business' reputation if you get it wrong.

It has recently been considered. In Morgan v Royal Mencap Society, Mencap was contracted to provide 24-hour care support in the homes of adults with autism and learning disabilities. A worker who did night shifts was found to be entitled to the NMW rate throughout her shift, even when sleeping, because she was required to be there and Mencap had a contractual obligation to provide the appropriate level of care.

The EAT set out four potentially relevant factors:

What is the employer's purpose in engaging the worker?
Are the worker's activities restricted by the requirement to be present and at the employer's disposal?
What is the worker's degree of responsibility?
What is the immediacy of the requirement to provide a service if something untoward occurs?

HMRC is focusing on social care providers and investigating whether they are paying workers below the NMW for sleep-in shifts. However, the government recognised the significant challenges that the sector would face through accumulated liability for penalties and arrears of wages. On 26th July 2017 it announced that the financial penalties faced by employers found to have underpaid workers for 'sleep-in' shifts would be waived for arrears from shifts that took place before 26 July 2017. Enforcement of the national minimum wage in the social care sector: 'sleep-in' shifts (July 2017).

On 28th September 2017 the government said that this temporary suspension would continue for a further month from that date while it prepared guidelines to help employers in the sector review their own compliance. Enforcement of the national minimum wage in the social care sector: 'sleep-in' shifts (September 2017).

This hiatus will not last forever so you should:

Assess the role of any sleep-in or on-call workers against the four potentially relevant factors.

Carry out a NMW audit by reviewing your company's pay rates against the NMW.


Can using the word 'traditional' be ageist?

Yes, depending on the context. In Gomes v Henworth Ltd t/a Winkworth Estate Agents and another a tribunal considered the case of Ms Gomes, who was an administrator for an estate agent. She was born in 1959. Last March, a director told her that she would be better suited to a traditional estate agency and that she should sleep on it and decide what she wanted to do. After a stress-related absence, she resigned, complaining that she had been constructively and unfairly dismissed, and that she had suffered discrimination and harassment because of her age. The tribunal found in Ms Gomes' favour because of the negative connotation attached to the word 'traditional' against a backdrop of criticising her performance and inviting her to consider her position. The term suggested that she was old fashioned and set in her ways. There had been no consideration of how to improve her performance. The director's comments constituted harassment because they violated Ms Gomes' dignity despite the fact that he had not intended to do so. She felt humiliated.

Compensation for age discrimination has no limit and claims can be presented against individuals as well as businesses. In 2016/17 the average age discrimination compensation award was £35,663.

What you should do:

Train your employees to avoid discriminating against colleagues because of their age.

Train managers and directors to appropriately manage performance.

When managing performance, identify relevant measures that can be easily assessed.

Provide objective feedback using appropriate language.

Be aware of any potentially discriminatory recruitment that employment agencies may do on your behalf.


Employment Tribunal Fee Refund Scheme launched

In our September issue we advised how you should respond to the abolition of employment tribunal fees. From 20th October 2017, the government started to contact 1,000 people who had paid fees to allow them to apply for a refund. As well as a refund of their original fee, successful applicants will be paid interest of 0.5%, calculated from the date that they originally paid up to the date that payment is refunded.

If you are not part of the first phase you can register your interest before the full scheme is opened up over the coming weeks.


You don't need a man to cater to an all-male event

Many of you will be familiar with the sight of a group of men eagerly crowding around a barbecue offering 'insightful' tips and guidance to the chef but few of us would consider it to be a genuine occupational requirement for the food to be cooked (or burnt) by a man. But this was the issue in Ms S Ndebele v A Bubble Company Limited.

Ms Ndebele, an agency worker, was assigned to work as a chef for a catering company. A friend of the head of sales was hosting a private barbecue, unconnected to the catering company, and the Office Manager was asked to find a suitable chef. From five volunteers, Ms Ndebele was put forward as the most suitable. The unsuccessful four were men. The Head of Sales replaced her with a man because it was an all-male event so, he said, a male chef would be preferable. Ms Ndebele presented a claim for sex discrimination.

The tribunal found that, had the Office Manager selected a man, he would have worked at the event. Ms Ndebele was replaced because she is a woman. That constituted unlawful sex discrimination. She was compensated for her loss of pay and her injured feelings.

What you should do:

Ensure your employees are aware that the Equality Act 2010 protects agency workers against discrimination by end users not only those that you employ directly.

Be aware that your business is vicariously liable for your employees' discriminatory acts if done in the course of their employment.

Remember that work-related social events are included in the phrase 'the course of their employment'. Courts will interpret the phrase broadly to ensure that workers are sufficiently protected from discrimination.

Your only defence will be to prove that you took all reasonable steps to prevent your employee from carrying out the discrimination. That involves properly implementing an appropriate policy supported by training.


Parental Bereavement Leave

Most of you will have some form of policy that offers compassionate leave to employees who suffer bereavement. However, there is no statutory right to such leave. On 13th October 2017 the Government published the Parental Bereavement (Pay and Leave) Bill which would provide a day-one right to parental bereavement leave for any employed parent who loses a child under the age of 18. Those with 26 weeks' continuous service would be eligible for statutory parental bereavement pay, some of which employers would be able to reclaim.


Can an investigation be too thorough?

Typically those who complain that their dismissal for gross misconduct was unfair protest that the investigation was not sufficiently rigorous and left a number of stones undisturbed. The complaint in NHS 24 v Pillar was the reverse.

The EAT considered a nurse whose job involved taking telephone calls from members of the public, evaluating the symptoms they described and deciding the most appropriate medical help. In December 2013 Mrs Pillar made a clinical error when she directed a caller having a heart attack to an out-of-hours GP service when she should have called 999 for an ambulance. The investigating officer found that Mrs Pillar had failed to identify a patient with a heart attack before. This was mentioned in the investigation report alongside another error.

The NHS dismissed Mrs Pillar for gross misconduct. The EAT rejected the 'novel' complaint that the investigation had been too thorough. It found that the NHS had dismissed Mrs Pillar because of the 2013 incident. The earlier matters were background information which constituted 'factors pertinent to the issue of dismissal'.

What you should do:

Appreciate that the investigator's job is to present the information revealed by the investigation but the decision-maker must decide what 'factors are pertinent' to the issue of dismissal.

Continue to exercise caution on whether to take past misconduct into account in reaching the decision to dismiss. Each case will turn on its own facts.

If a decision-maker rejects parts of an investigation report as being irrelevant then ensure that the outcome letter explains that the unnecessary material did not influence their decision.


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.