employmentteam

Sarah Begley is an Employment Solicitor based at our Solihull office. In this article she looks into Special Leave Policies and how such policies can be mutually beneficial for employers and employees.

As the number of employment claims made in tribunals continues to rise since the abolition of employment tribunal fees in July 2017, companies need to be more wary of creating an environment which is not only great to work in, but anticipates and understands the way that the world is changing. This is not simply a case of updating the employee handbook, but one of developing policies and reviewing contracts that commit to ink the intentions a company has towards equality and acceptance.

Every year, it seems that there are cases and laws being made to bring the UK closer to accommodating different branches of culture and sub-cultures.

With this ever changing social climate, forward thinking employers have an opportunity to anticipate legal change and create policies to place themselves ahead of other employers. By creating a ‘special leave policy’ they can accommodate the needs of those cultures which have not yet been considered by legislation, and anticipate those that soon will.

This will not only protect the employer by ensuring there is a formal method in place to fight against discrimination claims (s16(2) Equality Act (EQA) if an employer treats an employee less favourably in relation to absence for gender reassignment than it would for any other sickness absence) but make a major statement about how inclusive a workforce they want to create, giving protections to those who may have felt vulnerable before.

A ‘special leave policy’ that does cater for this could be flexible and up for regular debate in the HR department and then taken to the boardroom. Suggested inclusions could be death of a relative, serious ill health of a relative, domestic emergency, public duties, volunteering, mentoring, infertility treatment, gender reassignment, elective surgery (caution underlying mental health issues) or death of a family pet.

Many of these are allowed by employers, but it is very uncommon that anything is written into a formal policy. For instance, there is no right in law to take paid time off for jury service or medical appointments. Even when taking time off for these regular occurrences, employers and employees can be left in a vulnerable position, and one which is undesirable in today’s climate of rising employment litigation in tribunals.

We are living in an exciting time for social change, and employment law is moving to catch up, but as with any legislation it can be a slow process. If employers wait for this to happen then they could be leaving themselves behind. Yes, they may have the letter of law on their side, but the reputational damage that could be done is irreparable. This is why employers need to be forward thinking and accommodate for change before it happens.

If employers do this it is not just a legal or reputational defence, it is an opportunity to grow and retain good talent. And for employees, developing this sort of policy encourages inclusivity and an open forum to be able to make requests for time off that previously they would have shied away from or felt they couldn’t ask for. In this current climate, that is important for everyone concerned.

To discuss anything arising from this update, please contact Sarah Begley on 0121 733 4312 or via email at sbegley@wilkes.co.uk.

You can also contact any other member of the Employment Team on 0121 233 4333 or email us at employment@wilkes.co.uk

Wilkes Solicitors | Brexit - Implications For Businesses & EU Workers


Pam Sidhu, Employment and Business Immigration lawyer at Wilkes, considers the key issues arising in a Brexit deal or no-deal scenario.

While uncertainty still shrouds the UK regarding the timing and precise terms of its departure from Europe, in relation to EU immigration matters, there is some certainty in that the government has agreed with EU partners what it intends to implement in the event of a Brexit deal scenario. In addition, it has recently set out its policy on what it intends to enact in the event of a no-deal Brexit.

Pam Sidhu comments:The issue at the heart of it all is that the EU right of free movement for European citizens, as we currently know it, will end on Brexit day (whichever date this will be). The main principles as to how this will occur have already been agreed with the EU, but in some respects are yet to be specifically transposed into UK immigration law and guidance.”

A deal scenario

The key principles agreed between the UK and EU are as follows: –

  • The right to EU free movement, as we currently know it, will end on Brexit day.
  • However, an implementation period will start from the date of Brexit to 31 December 2020, during which free movement of EU citizens and their family members will effectively continue.  This means that EU citizens already in the UK by Brexit day, as well as any new EU citizens who enter the UK for the first time after Brexit day, will be able to continue living and working in the UK in accordance with EU law until 31 December 2020.
  • EU citizens who have resided in the UK lawfully for five years by 31 December 2020 will be able to apply for “settled status” to stay indefinitely in the UK, under the EU Settlement Scheme. Such EU citizens will be able to continue to live and work in the UK and access public funds and services beyond the implementation period, and may go on to apply for British citizenship in due course.
  • Those EU citizens with less than five years residence in the UK by 31 December 2020 will be able to apply for “pre-settled status” under the EU Settlement Scheme.  These EU citizens will be granted a 5 year residence permit and could then continue living and working in the UK beyond 31 December 2020, until they acquire the requisite five year period for indefinite or settled status.
  • The deadline for submitting applications by EU citizens for settled or pre-settled status under the EU Settlement Scheme is 30 June 2021 (which means such EU citizens can continue to live and work lawfully in the UK as normal until this date).Any failure by an EU citizen to meet this deadline will mean they are here illegally and will be subject to removal from the UK. 
  • British nationals residing in the EU will have similar reciprocal rights in the period up to 30 December 2020.

A no-deal scenario

In the event of a no-deal, the government’s intention, as announced in a public Home Office statement on 5 September 2019, is as follows: –

  • EU free movement will end on Brexit day.
  • EU citizens already in the UK before Brexit will be able to apply under the EU Settlement Scheme for pre-settled or settled status, but the deadline for applications will be 31 December 2020 (not 30 June 2021, as applies if there was a deal scenario).
  • EU citizens who move to the UK for the first time after Brexit will be able to live and work in the usual way (as they do now) until 31 December 2020. If they wish to stay beyond 2020 they will need to apply for an immigration permission. One option for them is to apply for a new, voluntary 36 month temporary permission, called European Temporary Leave to Remain (Euro TLR) upon arrival into the UK. The application process is likely to be similar to that under the EU Settlement Scheme.
  • Alternatively, any EU citizens moving to the UK after Brexit will need to apply for an immigration status, as do other non-EU citizens. The government has indicated it will introduce a new skills-based immigration system which will come into being from 1 January 2021.

New UK immigration system – 1 January 2021

It is difficult to precisely understand at present what the new immigration system in 2021 (when free movement will completely end) will be, as the Migration Advisory Committee has been commissioned to report on these issues and is currently consulting over a number of months. The Committee is due to present its findings to Government in January 2020. The government is likely to publish further proposals, probably in a white paper, during 2020. Current indications from the government are that all workers regardless of nationality will need to meet the same immigration requirements under a points based system, not too dissimilar to the system currently used for the influx of skilled non-EU nationals into the UK.

Conclusion

Pam comments:The government has agreed a number of key principles as regards how EU free movement will end in the UK and these matters are expected to be the subject of new legislation and immigration rules in due course. Most immediately, businesses reliant on EU employees should ensure they understand the implications of the end of free movement rights under a Brexit and what measures can be put in place towards safeguarding EU nationals’ residence status and planning their workforce requirements for the future.”

If not done so already, EU citizens should take steps to preserve their residence status under the EU Settlement Scheme. Employers can direct staff to the EU Settlement Scheme, which is available online.

“In addition, the government has announced that there will be a new, level playing field for all foreign citizens (both EU and non-EU nationals) who apply to live in the UK from 2021, with the implementation of a new immigration system. This is a significant sea change for UK businesses who have to-date relied on easy access to EU labour. Businesses should consider how they intend to recruit European workers after 2020. The indications at present are the UK’s new skills-based system will depend upon sponsorship, although in a more liberal regime. Accordingly, it will be important for employers to obtain or maintain their current sponsor licences. Employers will also need to ensure they are carrying out appropriate right to work checks on workers in light of the changes. ”

We offer a range of advice for international clients regarding business immigration matters as well as a comprehensive suite of Employment services for both businesses and individuals.

If you have any query relating to this topic, please contact Pam Sidhu on psidhu@wilkes.co.uk or 0121 233 4333.

We are looking to hold a series of workshops to discuss these issues in more detail. To register your interest in attending a workshop please send me an email and indicate any questions you are interested in having answered.

As a business owner, you will be faced with a varying degree of issues throughout your time. This can range from common issues businesses face such as complications with money, stock or the services provided. However, businesses can also face internal issues, especially when it comes to employment.

When you employ a worker, you cannot guarantee that there will be no problems along the road. Oftentimes, a business can be faced with issues regarding employment law and may need a qualified representative to safeguard their business.

The Wilkes Partnership are a leading employment lawyer based in Birmingham and Solihull. We are able to provide businesses with honest advice and reputable services to ensure the protection and safeguarding of their business when faced with an employment problem.

Why Seek Help from an Employment Lawyer?

Before we can explain in detail how we can help to safeguard businesses, it is important to understand why an employment lawyer is needed in certain circumstances. Employment issues can be particularly and can hit the heart of an organisation, regardless of the size of the business.

With employment law seeing constant movement, it is a full-time job to keep up to date on all the latest laws and legislation. With a business to run and employees to take care of, it is no wonder that many businesses aren’t able to keep up with all the latest developments. 

When smaller workplace issues turn into intense disputes, businesses must rely on the help of specialised employment lawyers to ensure the best possible outcome for the business. Without this specialist help, the business’s reputation may be damaged by the dispute.

How Can We Help?

As a business, you can be faced with a variety of problems and challenges regarding your employees and employment law. Luckily, The Wilkes Partnership have spent years becoming experts in all areas of employment law, offering both start-up businesses and established enterprises with the services they need to handle all problems that come their way.

As qualified employment lawyers, we can represent you and your business in court. It is crucial that you are accurately represented by an employment lawyer who not only has experience in employment law but also understands your business and unique case. 

The areas that we can cover as part of our services include:

  • Draft/review employment contracts and policies
  • Draft settlement agreements
  • Defend Employment Tribunal claims
  • Defend Court claims
  • Deal with TUPE questions
  • Handle disciplinary action
  • Deal with redundancy/restructure programmes
  • Deal with equality and diversity issues
  • Deal with maternity/family friendly rights
  • Draft/enforce confidentiality/restrictive covenant provisions
  • Obtain injunctions against current or former employees
  • Defend injunction actions
  • Provide bespoke employment law training to staff/managers
  • Deal with any other employment matter
  • Arrange work visas and employment contracts for employees from overseas

We can advise on singular, isolated issues as well as work with you on a long term basis to ensure you’re assisted with all aspects of employment. With so many common issues arising in employment, it is important that you have the necessary help to ensure the best possible outcome for you as a manager and your business overall.

Not only can you rely on our services to resolve individual workplace disputes, but you can also employ us for continuous HR support within your business. When a business experiences unprecedented growth, it may cause internal issues with employees.

We can offer you continued support and advice in regards to employment law. This will not only ensure that your staff are getting the correct treatment, but also ensure your business is safeguarded against any incidents in the future. 

What Kind of Businesses Can Use Our Services?

Here at The Wilkes Partnership, we are keen to help businesses in all industries and sectors to resolve their employment issues. For example, we can work with businesses in the following industries:

  • Accountancy firms
  • Automotive
  • Banks
  • Education
  • Finance and credit companies
  • Health services
  • Manufacturing
  • Real estate

This is not an exhaustive list. Our employment law services are available for all kinds of businesses. Simply get in touch with us to discuss your unique and individual circumstances.

Why Choose The Wilkes Partnership?

With so many employment lawyers available today, why should you trust in The Wilkes Partnership to resolve your employment issues? Not only do we have a highly experienced team of employment lawyers, but we also offer extremely competitive rates.

Furthermore, we make a conscious effort to understand your business objectives and pride ourselves as working as an internal part of your team. Whether you choose our services for a one-off case or for continued HR support, we will ensure we provide you with the support you need.

With there being a wide range of experience within the internal team, we can easily advise on all aspects of employment law ranging from common HR issues to more complex cases such as transfers of undertakings, discrimination, restrictive covenants and multi-jurisdictional employee disputes.

By appointing the Wilkes employment team, you will be looked after by an established team of professionals with a reputation for delivering bespoke solutions that meet your objectives. Contact us today for more information. 

On 17 December 2018 the Government published, its proposals to take forward some of the recommendations in the Taylor Review of Modern Working Practices (the ‘Good Work Plan’).

The Good Work Plan proposed what the Government described as “the biggest package of workplace reforms for over 20 years”. It sets out the Government’s vision for the future of the UK labour market and draws on the four consultations held earlier in 2018.

The Employment Rights (Miscellaneous Amendments) Regulations 2019 (SI 2019/731) (the ‘Regulations’) was introduced on 28 March 2019 and will bring into force various commitments set out in the Good Work Plan.

Jas Dubb, Associate Solicitor in our Employment Law Department considers the key proposals under the plan and what effect they may have.

Employment Status

The Government has declared that it will introduce new legislation to clarify the test for obtaining employment status that mirrors modern working practices. That clarification is important. Having ‘employee’ status attracts a considerable amount of legal protection and rights. However, creating a test is likely to be a difficult task. The Government has stated that it will also seek to adjust how the law deals with employee status for tax purposes, with a view of harmonising the law in both areas. No set timetable has been given for these potentially significant proposals for new legislation.

Written Statement of Particulars of Employment

The Employment Rights Act 1996 will be amended to give workers, rather than just employees, the right to:

  • a written Statement of Particulars of employment (i.e. a basic Contract of Employment); and
  • bring a tribunal claim against their employer for failure to provide such particulars.

The changes will apply to workers who start work for an employer on or after 6 April 2020.

Financial penalties

The Regulations will amend the Employment Tribunals Act 1996 to increase the maximum level of penalty an Employment Tribunal may order in respect of an employer’s aggravated breach of employment law from £5,000 to £20,000. The increase will apply in respect of breaches of workers’ rights that take place on or after 6 April 2019.

 Information and consultation of employees

The Regulations will amend the Information and Consultation of Employees Regulations 2004 (SI 2004/3426) to lower the percentage required for a valid employee request for the employer to negotiate an agreement on informing and consulting its employees. The threshold will be lowered from 10% to 2% of the total number of employees employed by the employer, subject to there being a minimum of 15 employees.  The change will come into force on 6 April 2020.

Jas Dubb comments, “These proposed changes serve as a useful reminder to employers of the importance of having employment documentation and policies in place which set out clear expectations, and in line with legal obligations. It is evident that more needs to be done in order to protect employees and prevent employee / employer disputes”.

We are currently offering all businesses a Free Employment Law Health which consists of a no obligation review of your existing employment contracts and staff handbooks.

Please contact us if you would like us to review your employment documentation and structure them in line with legislative requirements, to avoid employment issues from arising.

To discuss anything arising from this update, please contact Jas Dubb on 0121 733 5929 or via email at jdubb@wilkes.co.uk. You can also contact any other member of the Employment Team on 0121 233 4333 or email us at employment@wilkes.co.uk

Whether you’re just starting a new position or you’ve been working in an established company for many years, it is important that you familiarise yourself with your work and employment rights. You may find yourself in a position where you are in discussion with your employer regarding your employment, so you’ll need to be up to scratch on what you are entitled to as an employee.

For example, if you have noticed that your employer is going against basic rights, or you have been denied rights that you are entitled to, it is important to not only raise these with management but also have a clear idea of what you’re talking about, so you can get the best possible outcome.

The Wilkes Partnership are leading suppliers of employment advice services in and around the Birmingham area and are here to offer honest and up to date advice for employees. Keep reading to learn more about the basic rights you are entitled to, as well as any other rights you should be aware of.

Basic Employment Rights

When you start to work for a company, there are some basic working rights that everyone within the company will be entitled to. For example, as an employee, you must have:

  • A contract of employment – this contact should clearly outline certain rights and obligations.
  • Realistic working hours – the maximum amount of working hours is 48 hours per week.
  • Rest breaks at work – you’ll probably be entitled to rest breaks at work, depending on your working hours.
  • Time off work – the law permits you to take time off work for varying circumstances.

These are the first things you should be checking for when you start any new position, regardless of where you choose to work. If a business fails to provide these basic rights, you can either choose to challenge them or simply look for work elsewhere.

Pay

With any job, the pay is an incredibly important factor in your work. Employees will be offered a salary either based on previous experience or to the discretion of the manager.

You have a legal right to a payslip. If you notice any major issues, speak formally with your manager to resolve any issues. You should always check your payslip for any issues that may arise. Look for things such as:

  • Whether you’ve been paid for the number of hours you’ve actually worked
  • If you’ve been paid at the correct rate
  • If you’ve been paid for overtime, commission or bonus
  • Whether you’ve been paid any sick pay, holiday pay or maternity pay that you were expecting
  • If your employer has deducted any money that you weren’t expecting

When you leave a job, you may be owed money for things such as:

  • Holiday pay
  • Redundancy pay
  • Sick pay – if you were off sick in your notice period
  • Maternity, paternity, adoption or shared parental leave pay

Many employees forget to check these basic rights when departing from a position. Ensure you plan an exit review with your employer to discuss if you are entitled to pay for any of the above reasons. 

Most employees are entitled to get paid at least the National Minimum Wage. If you are aged 25 or over, you are entitled to the National Living Wage. If you suspect that your employer is not paying you the correct wage, it is important to get employment advice as soon as possible. 

The current National Minimum Wage and National Living Wage Rates are as follows:

April 2019

  • 25 and over: £8.21
  • 21 to 24: £7.70
  • 18 to 20: £6.16
  • Under 18: £4.35
  • Apprentice: £3.90

Breaks and Holiday Entitlement

If you are an employee who works five days a week, you are entitled to 5.6 weeks (28 days) of paid leave per year. You employer may choose to include public holidays in this total. It is important to use your holiday entitlement, as many companies will not carry this over to the next working year. It is also imperative for your health and wellbeing to take proper breaks from work.

Within the working day, you are also entitled to lunch breaks. By law, you are entitled to a 20-minute rest break if you work more than 6 hours in one shift and additional breaks may be given by your employer. You are not legally entitled to cigarette breaks. 

Sickness

This topic may often cause complications within a workplace, due to companies having their own procedures. However, there are a clear set of legal rules which all employees and employers must follow.

For example, as an employee, you may need time off work due to sickness. You can self-certify your illness until you’ve had 7 days off where you will then need to supply a doctor’s note. You have the right to use your holiday entitlement during your period of sickness.

Your employer may not always offer sick pay, however, the weekly rate of Statutory Sick Pay is £92.05 for up to 28 weeks. All employees are entitled to this by law. It is up to your employer if they have their own sick pay scheme and wish to pay you in full for time off due to sickness.

Parental Rights

If you’re pregnant, you have a range of workplace rights that you are entitled to. This includes:

  • Paid time off for antenatal care
  • Maternity leave
  • Maternity pay or allowance
  • Protection against unfair treatment, discrimination or dismissal

Your employer must provide these as basic rights and cannot discriminate against you, nor refuse to provide these statutory rights. If you are facing issues with your employer regarding maternity leave and pay, seek employment advice urgently from The Wilkes Partnership. 

If your partner is having a child, you are also entitled to basic rights such as 1-2 weeks of paid paternity leave or shared parental leave and/or pay. Ensure you discuss these with your employer before your child is born.

Do You Have Any Questions Regarding your Workplace Rights?

If you’re having any concerns about your employer’s treatment of you and other members of staff, contact The Wilkes Partnership for employment advice today. With years of experience in the employment sector, we can offer genuine employment advice to ensure the best outcome for our clients.

The Wilkes Partnership, Employment Law Birmingham Solihull Lisa Moore

As a result of Brexit, legislative updates and various high-profile Judgments, a number of interesting developments are expected in the field of employment law during the months ahead.

Lisa Moore, Associate in the Employment team at The Wilkes Partnership, considers some of the key changes for employers to be mindful of in 2017.

Gender Pay Gap Reporting Requirements

All private and voluntary sector employers with more than 250 employees as of 5 April 2017 should be preparing to comply with the Government’s new gender pay gap reporting requirements. Employers will need to collect data on the pay differences between male and female employees. This information will then need to be published by employers by 4 April 2018 in a prominent place on their website and on a Government website to be unveiled later this year. It is anticipated that non statutory guidance will be published on these requirements in due course by both the Government and Acas.

 Self-Employed Workers and the “Gig Economy”

The use of apparently self-employed contractors by companies like Uber and Deliveroo as part of the so called “gig economy” has been on the rise in recent years. Much publicity was generated last year when an employment tribunal found Uber drivers to be workers in the case of, Aslam and others v Uber BV and others. Uber has, however, lodged a notice of appeal in response to this decision which has been accepted and is likely to be heard in the summer so there will be further updates to follow in this case.

In February 2017, the Court of Appeal handed down a decision in the case of, Pimlico Plumbers Ltd v Smith which gave further consideration as to the distinction between self-employed contractors and employees. It was held that whilst Mr Smith was not an employee, he was a worker despite appearing from documentation to be in business on his own account, and other relevant factors such as having supplied his own materials, tools and insurance. This finding would entitle Mr Smith to pursue a number of claims against the company, including claims for holiday pay and unlawful deduction of wages. Although it is not yet clear whether they have been granted permission to do so, Pimlico Plumbers had previously indicated that it intended appealing to the Supreme Court.

Separately, the results of three inquiries are expected to be published during 2017 on this topic. Firstly, the Business, Energy and Industrial Strategy Committee will seek to address the status and rights of agency workers, the self-employed as well as individuals working in the gig economy. Secondly, the Work and Pensions Committee will consider whether the UK welfare system supports those working in the gig economy sufficiently. Finally, the Royal Society of Arts is conducting an independent review of employment practices in the modern economy.

Brexit

The Government has now triggered Article 50 and the process of the United Kingdom leaving the EU has now begun.

As much of the UK’s employment law is influenced by the EU, Brexit will have significant long term implications for the employment law landscape. For instance, changes could be made to holiday entitlement, the Agency Workers Regulations as well as the TUPE regulations. Further clarity is likely to be provided in this respect during the course of the year.

Employment Tribunal Fees

By some estimates, the 2013 increase in employment tribunal fees led to a 70% reduction in the number of employment tribunal claims. Following the increase in tribunal fees, Unison launched a bid to overturn the fee hike arguing that it restricted the access to justice of potential claimants. Unison’s challenge has made its way to the Supreme Court and is due to be heard in the next couple of weeks. In any event, the general consensus amongst employment law practitioners is that tribunal fees are here to stay.

Holiday Pay

It is anticipated that a hearing of the case of, The Sash Window Workshop Ltd and another v King will take place at the European Courts of Justice (“ECJ”) later this year. In this case, the ECJ will consider whether workers should be entitled to carry their holiday over from one year to the next in circumstances where they are unable to use their all of their allowance due to factors outside of their control.

A decision from the Employment Appeal Tribunal is also awaited in the case of, Fulton and another v Bear Scotland to establish whether statutory holiday pay should be included in overtime pay.

Conclusion

Lisa Moore comments: “The above serves as a brief summary of some of the main developments which are expected in 2017. It looks set to be a busy year with a number of other changes being introduced including an apprenticeship levy as of 6 April 2017 – this will require employers that have an annual payroll of more than £3 million to pay a 0.5% levy on their total pay bill. Furthermore, notable decision are also being awaited in cases relating to issues such as whistleblowing, disability discrimination and subject access requests so please do look out for further updates.”

To discuss anything arising from this update, please contact Lisa Moore or any member of the Employment Team on 0121 233 4333. 

 

Sarah Begley - The Wilkes Partnership, Employment Solicitor, Birmingham, Solihull

There are two types of diabetes: type 1 which is controlled by insulin and is usually defined as a disability under the Equality Act 2010 and type 2, which can be controlled by diet and/or medication. So does this mean type 2 diabetes can be defined as a disability too?

Yes, was the decision of the Employment Appeal Tribunal in the case of, Taylor v Ladbrokes Betting & Gaming Ltd.

Sarah Begley of The Wilkes Partnership considers the key points of the decision and what employers need to do in order to ensure they are following correct procedures when identifying an employee with a disability. 

After being dismissed from Ladbrokes Betting & Gaming Ltd, Mr Taylor declared he had been disabled for a year before dismissal, due to type 2 diabetes. The Employment tribunal decided the he was not disabled after reviewing two medical reports. Mr Taylor appealed.

The Judge hearing the case on appeal disagreed with the Tribunal’s findings. Type 2 diabetes, as a progressive condition, would amount to a disability even if it did not have a substantial effect at that time, as long as it was likely to result into such a condition where it would affect their ability to carry out normal day to day activities. The EAT remitted the case back to Tribunal to reconsider the issue as the Judge felt that the medical evidence was not clear and had been misinterpreted.

Sarah Begley comments: “This is an interesting and important decision. This case illustrates that employers should be careful not to automatically assume that diabetes and/or other common progressive conditions are not a disability. Each case will be determined its own facts and on this basis it is vital to consider and investigate the substantial effect on the employee’s normal daily activities present and future under The Equality Act 2010 before reaching a decision on whether or not the employee has a disability”.

To discuss anything arising from this update, please contact Sarah Begley on 0121 733 4312 or via email at sbegley@wilkes.co.uk. You can also contact  any other member of the Employment Team on 0121 233 4333.

The Wilkes Partnership, Employment Law Birmingham Solihull

The issue of discriminatory dress codes recently came to public attention when a petition calling for it to be made illegal for employers to require women to wear high heels at work received over 150,000 signatures.

The petitioner was a Ms Nicola Thorp, a temporary receptionist working at PwC, who was sent home without pay when she refused to wear high heels at work.

The House of Commons Petitions and Women & Equalities Committee (“Committee”) conducted a detailed investigation into the topic of dress codes and discrimination, and produced a report in late January 2017. The Committee found that employers, particularly in certain sectors of the economy, implemented discriminatory dress codes that sexualised and exploited young women. It has called for the Government to strengthen the law in this area.

Pam Sidhu, Head of Employment at Wilkes, comments: “Most employers specify some form of dress code for their employees. This will usually be based around legitimate concerns such as health & safety and the projection of a professional image. So long as such dress codes are sensibly drafted and allow for flexibility in certain cases, they should be legally compliant. However, there are circumstances where a dress code can be found to be discriminatory on grounds such as gender, religion or disability. As borne out by the recent report, the Equality Act already gives some protection to employees, but the practical application of the law is sometimes unclear for employees and employers. Also, some employers seem unaware of the implications of the Equality Act.”

As the law currently stands an employer will be guilty of direct discrimination if it has a dress code that is “less favourable” to one gender. For example a tribunal has found a requirement for women to wear low cut tops at work to be discriminatory.

An employer can also be found to be indirectly discriminatory where there is a dress code that applies to everyone in the same way but has a worse effect on some employees than others. Examples include dress codes that restrict the ability of employees to wear items associated with their religious beliefs. In order to protect themselves in these situations, employers will need to be confident they can demonstrate that their dress codes constitute a proportionate way of achieving a legitimate objective (for example, safety in the work place).

The Committee’s investigation found that whilst the rules relating to discriminatory dress codes are clear in principle there is often some difficulty in their practical application. It was noted that there is often uncertainty as to what constitutes less favourable treatment. The example of a requirement for women to wear make-up was identified as being problematic, as conventionally many women wear make-up and therefore less favourable treatment may not be easy to prove.

Significantly, the report commented that the 2013 increase in tribunal fees has caused a substantial reduction in the number of “test cases” making their way through the tribunal system. Consequently, there has only been limited opportunity for the building up of a body of cases that flesh out the law on discrimination in the workplace.

The Committee recommended an increase in the financial penalties applicable to employers who are found to have breached anti-discrimination law, so that employers pay more attention to the law when drafting dress codes. This would also encourage employees who have been discriminated against to bring claims.

It was also suggested that employment tribunals be given the power to award injunctions. The rationale being that it would make it quicker and easier for a claimant to resolve an issue. It is not clear how such injunctions would work in practice

Pam Sidhu further comments: “The report highlights some of the uncertainty in anti-discrimination law surrounding employment dress codes and the need to educate employers. Employers need to be vigilant to ensure they do not inadvertently fall foul of the law. The report also shows that there is now some appetite for changes to the system surrounding employment tribunals in order to encourage more claims.”

To discuss anything arising from this update, please contact Pam Sidhu or any member of the Employment Team on 0121 233 4333. 

Lisa Moore, Employment Law, Solicitor, Birmingham, Solihull

On 24 July 2015, the Government launched a consultation as to how termination payments are treated and, during August 2016, released draft legislation outlining its proposed changes.

The Autumn Statement, delivered by the Chancellor of the Exchequer on 23 November 2013, served as a reminder of some of the Government’s recommendations.

Currently, where there is a provision in an employee’s contract of employment which allows the employer to terminate his/her employment immediately by making a payment in lieu of notice (PILON),  any such payment will be taxable and subject to national insurance contributions (NICs).

Otherwise, where there is no express provision in the employee’s contract, the position can be more ambiguous.  If an employee’s contract of employment is silent on this issue and there is no discretionary or other right to a PILON, it can be possible in some circumstances for this payment to be treated as damages and paid without any deductions. However, the position in this respect depends on the specific facts of each matter. Accordingly, whether employers can pay notice payments tax free often becomes a point of contention when severance terms are being negotiated.

Notwithstanding the above, at present, employers may be able to pay non-contractual payments in connection with the termination of employment up to a value of £30,000 free from deductions and above this sum, only income tax is payable.

There are also numerous tax exemptions for particular types of payments, including in relation to injury, disability or death, for foreign service relief in relation to employment performed outside the UK, and for the armed forces.

From April 2018, in an attempt to eliminate the confusion which often arises with termination payments, it is intended that the distinction between contractual and non-contractual PILONs will be removed. Accordingly, moving forwards, all PILONs (regardless of the employee’s termination date) will be treated as earnings subject to income tax, employer and employee NICs.

It has also been suggested that payments which an employee would ordinarily receive during their notice period and would normally be taxable (such as bonus payments), will now also be subject to tax under the terms of a settlement agreement.

Furthermore, employers’ NICs will be payable on compensation payments that are above the £30,000 tax free exemption (whereas, currently, termination payments of any value are exempt from NICs).

Finally, it has been proposed that payments for injury to feelings will fall outside the exemption for injury payments (except where this amounts to a psychiatric injury or a recognised medical condition) and foreign service relief, in relation to employment outside of the UK, will be abolished (except in relation to seafarers).

Lisa Moore comments: “The Government initially proposed removing the £30,000 tax-free allowance altogether so, comparatively, the above reforms are likely to be received as welcome news by employees and employers alike. Although the proposals will provide more clarity for employers when formulating settlement terms, this is likely to come at a cost. Employers may well find themselves having to increase termination payments to compensate for making the PILON on a net basis and will have less flexibility when proposing settlement packages.”

If you would like to discuss any issue or query arising from this update please contact Lisa Moore or your usual contact in the Employment team on 0121 233 4333. Alternatively, email us at employmentlaw@wilkes.co.uk.

Costs update in the Employment Tribunal – Litigant in Person

Costs awarded in the Employment Tribunal are uncommon. Costs awarded against ‘Litigants in Person’ (people who represent themselves) are even more unusual. Despite this, in the recent case of Liddington v 2gether NHS Foundation Trust the Employment Appeal Tribunal (EAT) awarded costs against Ms Liddington (the litigant in person) for failing to give sufficient detail and clarify her claims despite been given several opportunities to provide the evidence requested of her.

Sarah Begley of The Wilkes Partnership considers the key points of the decision and the impact this could have on future Employment Tribunals.

Ms Liddington was a community practitioner working for 2gether NHS Foundation Trust. After making a safeguarding referral in relation to a patient, Ms Liddington complained that she was subjected to a number of detriments by her employer before being dismissed. She brought various complaints as a litigant including; constructive unfair dismissal, religious discrimination and whistleblowing.

Unfortunately, Ms Liddington was unable to give the specifics relating to her complaints namely; the key dates, what was said or done and by whom.

The Employment Tribunal has the discretion to make a costs order where a party has acted unreasonably when issuing or conducting proceedings.

Whilst it was acknowledged that the standard of pleadings expected of a lawyer did not apply to a litigant in person, the Claimant was expected to be able to articulate her complaints in lay person’s terms. Although the tribunal accepted that Ms Liddington was not trying to cause deliberate difficulties and delays, her repeated failure to recall the key details regarding what happened, in the opinion of the EAT, did not meet the low standards expected of a litigant in person entitling the employer to an award of costs against Ms Liddington.

Sarah Begley cautions: “This case serves as a useful reminder of the importance of considering language and formality in conducting proceedings as a ‘Litigant in Person’. Even though expectations of the standard of putting your case is at a lesser level, a failure to provide adequate details can be deemed unreasonable conduct and justify a costs award.”

For advice on any employment related matter and to discuss our Free Employment Health Check please contact Sarah Begley on 0121 733 4312 or sbegley@wilkes.co.uk