Free HR Breakfast Seminar - Employment Law Update Featuring Julie Fewtrell, HR Consultant

1. HR Breakfast Seminar
Employment Law Update
Julie Fewtrell, HR Consultant
Thursday 3 October 2013

2. Topics
Overhaul of the tribunal system
Parental leave
Adoption leave
Flexible working
Flexible Parental Leave

3. Social media
Auto enrolment
Discrimination law overview and
reasonable adjustments
Interns
Common HR topics

4. Overhaul of the tribunal system
29 July 2013:
Introduction of tribunal fees
New calculation for compensatory award
Settlement agreements
Confidential discussions about agreed
termination of employment

5. April 2014:
 Claimants need to notify ACAS first before
lodging tribunal claims.
 Conciliation is offered.
 If conciliation is unsuccessful within the set
period, can proceed to tribunal.

6. Tribunal fees
1. £160 issue fee, £230 hearing fee: more
straightforward claims, including
unlawful deductions from wages and
holiday pay
2. £230 issue fee, £950 hearing fee: more
complex claims, including unfair
dismissal, discrimination, whistleblowing

7. • Tribunal will have power to order
unsuccessful party to reimburse fee to
successful party
• Claimants whose earnings fall below a
certain threshold will pay reduced fees or
nothing at all. They need to apply for fee
remission.

8. New calculation for compensatory
award
• Capped at the lower of weekly pay x 52 or
£74,200
• Includes compensation for unfair dismissal
• Potentially significant for lower paid
workers

9. Settlement agreements
The new name for “compromise agreements”.
Final ACAS code states:
Offer no longer needs to be in writing (but
final agreement must, to be legally binding)
Adds requirement that employee must have
minimum 10 days to consider offer

10. Adds that employees should be allowed to
be accompanied at settlement meetings
(TU rep or work colleague). Not a legal
requirement but good practice.

11. Confidential discussions about
agreed termination of employment
Law changed to allow employers to
discuss with employees the possibility of
an agreed termination.
Risk of such discussions being used
against them in any later ET is removed.
However, care to be taken due to strict
parameters attached to discussion.
ACAS Code of Practice to guide
employers and employees.

12. Applies to ordinary unfair dismissal only.
Evidence of such discussions still
admissible if:
- breach of contract
- detrimental treatment due to whistleblowing
- unlawful discrimination
- victimisation
- automatic unfair dismissal

13. Can still be used in ordinary unfair
dismissal if tribunal considers anything
said or done was ‘improper’ or was
‘connected with improper behaviour’.
Case law will test concept of ‘improper
behaviour’.
Until then ACAS gives broad examples of
what this might cover:

14. - Victimisation
- Threats or physical assault
- Other criminal behaviour (e.g. fraud, perjury,
blackmail)
- Harassment, bullying and intimidation
- Undue pressure e.g. unreasonable time-frame to
respond

15. Parental Leave
Increased from 13 weeks to 18 weeks
during first five years of child’s life (or up to
age 18 if disabled child). 8 March 2013
From 2015, 18 weeks available up to the
child’s 18th birthday.
Remains unpaid, with same rules around
how many weeks can be taken per year,
notice to be given etc.

16. Adoption Leave
From 2015, surrogate parents will be
eligible for this.
Both will be able to attend two antenatal
appointments, unpaid time off

17. Flexible Working
Right to request to be extended to all
employees – Children and Families Bill
Implementation: spring 2014
Current procedure to be replaced by a
duty on employers to deal with requests in
a reasonable manner and within a
reasonable period of time
Right to refuse requests on business
grounds remains

18. Flexible Parental Leave
Timing: further consultation on administrative
and implementation arrangements took place
in first half of 2013, with reforms implemented
by 2015
Where both parents are working, and meet
qualifying conditions, they can opt into
Flexible Parental Leave (FPL) and share up
to 50 weeks leave and 37 weeks pay

19. FPL available to biological father or mother’s
partner, including same sex partners
Women will only have to take minimum of two
weeks maternity leave (or 4 weeks if factory
workers)
FPL only starts when mother decides to end
her maternity leave
Both parents can then be on leave at the
same time or take leave consecutively

20. Parents will also be able to intersperse
periods of work with periods of leave
FPL must be taken in minimum blocks of one
week
Employers not obliged to agree employees’
proposed FPL pattern. If agreement can’t be
reached, default position will be that paid
leave will be taken in one block on start date
chosen by employee

21. Statutory paternity leave and pay will
continue as separate rights for
fathers/partners and remain at 2 weeks
Additional paternity leave will be abolished
New right for fathers/partners to take unpaid
time off work to attend 2 antenatal
appointments with their partner. “Day one”
right with no qualifying conditions

22. Administrative arrangements will be “light
touch” – government says at “no point will the
respective employers of each parent need to
contact one another to discuss their
employees’ leave entitlements”
In addition, changes will be made to bring
adoption pay and leave rights into line with
those of maternity rights, i.e. leave will be a
“day one” right and pay will be 90% for weeks
1-6 etc.

23. Social Media
Problems that can arise:
Too much work time on social sites
Criticising employer or its products
Posting material that embarrasses employer
Using it to bully other employees
Using it to publicise things they disagree with
employer about, or spread dissent
Breaching confidentiality/giving trade secrets

24. Employer discovering misconduct as a
result of a posting, e.g. photos on holidays
when meant to be off sick
Ownership of contacts, content and Twitter
tags when employees leave – when used
for work purposes

25. What can you do?
Social Media or Acceptable Use Policy is a
must
This assists with any challenges at tribunal –
employer is clear about what is appropriate
and acceptable
Communicate policy to whole workforce
Brief staff to help them understand
implications of their actions
Enforce it consistently

26. Case: Taylor v Somerfield
• Breach of implied term of trust and
confidence
• Employee was dismissed after posting
video clip on YouTube of colleagues
fighting with plastic bags while at work
• Employer sought to argue the material
brought the business into disrepute

27. • Tribunal disagreed, finding there was no
clear association with the employer
• Video only viewed 8 times
• Scale of distribution is a relevant factor

28. Case – Preece v JD Wetherspoons plc.
• While on duty, a pub manager posted
inappropriate comments on her Facebook
page about two customers
• Breach of employer’s email and internet
policy
• Dismissed – gross misconduct
• Claimed unfair dismissal

29. • Believed comments only visible to a
closed group of friends and therefore
private. In fact, visible to all Facebook
friends.
• Tribunal found the dismissal to be fair
• Connection between claimant/employer
was clear from Facebook page

30. • Clear from posts that claimant and her
friends were discussing work and specific
customers of respondent
• Employer’s position strengthened by
thorough nature of its policies

31. Case – Gosden v Lifeline Project Ltd
• Drugs welfare worker expressed racist and
sexist views in a private email sent from
his home computer to the home of a
friend’s private email account
• His employer became aware of the email
and dismissed him
• Employment tribunal found dismissal to be
fair

32. • Clear that ET decision was particular to
this case and not to be considered binding
on other tribunals
• Gosden had close connection to
individuals with the characteristics
disparaged in the email

33. Case – Flexman v BG Group PLC
• HR Executive uploaded his CV to LinkedIn
which contained confidential information
• Employer instructed him to remove
confidential information and then commenced
disciplinary proceedings
• Flexman complained there was unreasonable
delay in process and raised grievance

34. • Flexman resigned and brought claim of
constructive dismissal
• ET held he was constructively dismissed
• He had resigned because he had lost faith in
employer’s ability to deal fairly with
disciplinary and grievance
• Case did not provide any guidance on what
information employees are entitled to include
on their LinkedIn account

35. Case – Benning v British Airways Plc.
• Employee was accused of offensive
comments and footage on YouTube
• During disciplinary investigation, employee
claimed it was in fact his brother who had
posted the material and produced a letter
to that effect
• Employee was dismissed and claimed
unfair dismissal

36. • Tribunal found that on the evidence, it
would have been difficult for the employer
to conclude that the employee was not
responsible for the posts
• It was considered relevant that employee
did not give that explanation when first
questioned about the conduct

37. Points to consider when deciding
what action is appropriate
Nature of the offence
Nature and status of work carried out by
employee
Extent to which role requires trust to be
placed in employee
Actual/potential readership
Starting point likely to be that material on
internet is in public domain unless employee
can show it is genuinely private in nature

38. Case – Whitmar Publications v
Gamage
Case involved ownership of LinkedIn contacts.
Outcomes:
• Where employers require employees to
maintain LinkedIn pages on their behalf
during employment, courts are likely to find
contacts belong to employer.
• Injunctions may be granted where former
employees try to misuse such contacts post-
termination.

39. • Unfortunately, this case does not answer
what happens to employees’ personal
LinkedIn accounts where they are not
required by the employer to maintain one but
the accounts connect to their employer’s
contacts.
• For some protection, employers can use
post-termination restrictions in contract of
employment and robust social media policies.

40. “Bring-Your-Own-Device”
BYOD
Issues related to safeguarding personal and
company data, as more staff work on their
own smart phones and tablets:
Control: employer does not own device
Security risks
DPA compliance
IT licences may not allow for use on such
devices

41. Support and maintenance
Information Commissioner has issued
guidance on BYOD issues

42. How to minimise risks
Clarify rules, including consequences of non-
compliance
If employer reimburses costs, be clear about
who owns device and its contents, who is
responsible for what costs
Remind staff about confidentiality
Explain security risks and safeguarding
If possible, prohibit downloading of data to
device

43. Explain how, when and why monitoring will
take place
Have procedure for reporting loss or theft of a
device
Require employees to hand over device and
any password for inspection on request and
on termination of employment, so employer
can wipe it of any company information.
Employee should give explicit consent for
this.

44. Auto-enrolment
From the Regulator – key lessons learnt:
Start planning early (volume “spikes”)
Know your staging date
Choose and agree scheme provider early
Choose and agree software supplier early
Test processes and software
Communication

45. Take care:
Staging date linked to number of PAYE staff
as of April 2012 – check your date
Will your payroll supplier provide any help on
who is eligible month-by-month?
If you do not have a pension provider now,
expect pressure on providers during 2014
Regulator can help but volume of work
expected to be very heavy in 2014

46. Planning Ahead
Regulator website has great tool for this:
Lists out the steps you need to work
through
Each step takes you to more detailed
information if you need it
Provides guidance on timeline for each
step

47. Steps
• Know your staging date
• Nominate a contact
• Develop a plan
• Check processes and software
• Assess your workforce
• Review pension arrangements
• Communicate to workers

48. • Enrol eligible jobholders
• Registration
• Keep records
• Ongoing responsibilities

49. Practicalities:
Provide Regulator with a nominated contact
at your organisation now so that they can
email this person with key, relevant
information, for your organisation
Regulator writes to organisations 18 months
before their staging date – subsequently
writes 12, 6 and 1 month before, informing
you of what you should have done by these
deadlines

50. Important decision
Which definition of pay will you use?
“Qualifying earnings” basis is likely to be
lowest cost option but may be more onerous
to administer
This involves three tiers of workers and
jobholders, with different rights
Limits pensionable pay to that between
£5,668 and £41,450, rather than from zero
and up to full pay amount

51. Regulator “news”
Concerns about volume of employers
reaching staging date in March-May 2014
Recent DWP consultation on simplification
of auto enrolment
Has led to some changes which will be
helpful to employers
Ironing out a few wrinkles
Regulator has issued simplified rules (end
September)

52. Discrimination law overview
Many provisions of Enterprise and Regulatory
Reform Act which directly impact on Equality
Act are not yet in force.
Likely that many, e.g. relating to compulsory
equal pay audits and caste discrimination, will
take some time, even years, to come into
law.
Repeal of third party harassment process, 1
October 2013

53. Adjustments to absence policy for
disabled employee
EAT: HMRC v Whiteley
Asthma sufferer. Conclusions:
Not all disability related absence must always
be disregarded for purposes of applying
sickness policy.
Employer may be able to take action where
absences are in excess of what might be
considered average for someone with the
same disability.

54. This case highlights how crucial it will always
be to get thorough, expert medical advice.

55. Reasonable adjustments and
alternative employment
For clarity:
Equality Act 2010 places a duty on the
employer to make reasonable adjustments in
relation to a disabled person where:
- a provision, criteria or practice applied by
employer, or
- a physical feature of employer’s premises,
or
- a failure to provide an auxiliary aid......

56. ....puts a disabled person at a substantial
disadvantage in comparison with persons not
disabled.
An example given in the EHRC’s Code of
Practice is transferring a disabled person to
fill an existing vacancy.
Issues around whether or not requiring the
person to undertake a competitive interview
process is fair in these circumstances or not.

57. Cases: Archibald v Fife Council
Wade v Sheffield Hallam Uni
Conclusions of EAT:
Not always reasonable adjustment to
place a disabled person into a vacant
position.
Depends on circumstances of each case.

58. Where there are good reasons for the
employer to believe the employee does
not have or may not have essential skills
for alternative role, legitimate for employer
to test this through appropriate process
such as competitive interview.

59. But... if employee satisfies essential
criteria of vacant position, failure to
appoint them (even if there are ‘better’
candidates) likely to amount to failure of
duty to make reasonable adjustments.

60. Interns
Case – Keri Hudson v TPG Web
Publishing
• Employer overstepped the mark. Should
have been paying NMW at the very least.
• If payment made, this helps to ensure
certainty. If unpaid, ensure:

61. Intern has little or no obligations towards
business, i.e. can come and go as they
please
Organisation not reliant on work of intern
Arrangement is for finite (and short) period
There is no indication of future
employment

62. Most widely-raised HR topics
Managing long term sickness absence
Disability questions within the recruitment
process
Mental health issues
Poor performance being left for too long
Restructuring due to economic
climate/requirement to be more
“commercial”

63. Employment Tribunal Statistics
2012/2013 figures
• 3% increase in number of ET claims from
186,331 in 11/12 to 191,541 in 12/13.
• Figure expected to decrease in next year,
with introduction of tribunal fees.
• Working Time Regulations claims: 30% of
total claims in 2012/13.
• Unfair dismissal accounted for 15% of all
claims in 2012/13 (increase of almost 6% on
previous year).

64. • Sex discrimination claims rose by 74%,
despite overall fall in such claims of 30%
since 07/08.
• Claims for disability/race/age discrimination,
equal pay, and detrimental treatment/unfair
dismissal connected with pregnancy – fell.
• Claims relating to Part Time Workers
Regulations, religion or belief and sexual
orientation discrimination - rose

65. • Number of cases received by EAT rose by
just under 6%.

66. ?

67. Contact details
Julie Fewtrell
HR Consultant
www.juliefewtrell.com
julie@juliefewtrell.com
020 7935 7855
07977 505995

68. Providing:
• Employee relations advice
• Training on HR matters: e.g. Performance
Management, Appraisal and Supervision,
Recruitment and Selection, Using HR
Policies

69. • 1-to-1 coaching and team days – using
Myers Briggs where appropriate
• Facilitation of staff and trustee away days
• Governance advice: developing board
appraisal, facilitating strategy days