Taylor & Emmet Soicitors | The Employment law blog
Taylor&Emmet LLP is one of the leading and most successful law firms in the South Yorkshire and Derbyshire region, a position it has held for nearly 150 years. This success has been achieved by delivering the highest quality legal advice to business and private clients, many of whom have remained with the firm for generations.
Yes, we might be experiencing some delays in the tribunal service currently, but certainly here in South Yorkshire, to call them “gridlocked” would be a little overdramatic.
So what is causing the delays?
The problems are rooted in the Supreme Court’s decision to abolish fees for employment tribunals last year. Whilst this was great news for claimants, the rapid increase in cases was not fully anticipated.
When fees were introduced in 2013, the average drop in claims across the UK was 65%. The resulting empty courtrooms meant staffing and judicial resources were managed downwards, in some cases through natural wastage, in response to this reduced demand.
The challenge now is for the tribunal service to react quickly and efficiently to its growing workload, whilst still processing current cases. Simply put, additional staff are required as soon as possible, although I suspect budget and target restrictions imposed previously may be restrictive.
Increasingly, we are moving towards a situation where future claims will be handled electronically and the tribunal service may also have to consider what impact this ongoing strain on resources will have on its ability to embrace new technology and process these changes efficiently.
How can T&E help?
Employment solicitors, like me, see the negative impact tribunal delays have on clients and we are doing all we can to manage expectations, by limiting legal costs and alleviating the frustrations caused by having to wait six months or more to have your say.
At the outset, or in the early stages of a case, we can also explore the benefits and likelihood of seeking resolution before employment disputes reach a tribunal. If this can be achieved, there are obvious advantages for both sides in terms of avoiding lengthy, costly and stressful proceedings.
For an early discussion about your options, the practicalities of settling employment disputes, or to discuss a potential claim in more detail, don’t hesitate to contact me on (0114) 218 4000, email email@example.com or follow us on Twitter, @tayloremmet.
Claims of discrimination by perception are unusual and therefore it is useful to look in a little more detail at this type of claim if they get to the Employment Appeal Tribunal (EAT) to get a better understanding of how the Tribunal’s deal with the issues created by this type of claim in practice. The recent case of Coffey v Norfolk Constabulary gives us just such an opportunity.
Mrs Coffey was a serving police officer working on the front line for Wiltshire Constabulary. She had a degree of hearing loss but this had no adverse effect on her ability to perform her role. Mrs Coffey applied for a transfer to Norfolk Constabulary, disclosed her hearing loss and confirming that reasonable adjustments were not needed. Mrs Coffey was informed her application had been successful, subject to a pre-employment health assessment.
Medical standards are set by the Home Office for police recruitment. In guidance accompanying these standards a practical test for hearing loss is required and it is also confirmed that individuals should be considered on a case by case basis. Even where both ears were below standard the guidance only said the candidate was “unlikely to be suitable.”
The medical adviser for Norfolk Constabulary highlighted that Mrs Coffey’s hearing was “just outside the standards for recruitment strictly speaking” but that she had been performing her role at Wiltshire Constabulary without any undue problems. Mrs Coffey went on to pass a practical test but despite this Norfolk Constabulary refused her application citing her hearing as being below the required standard.
Employment Tribunal Decision
Mrs Coffey’s argument was not that she was disabled. A component of the definition of “disability” is that the impairment must have a substantial adverse effect on the individual’s day to day activities. Mrs Coffey recognised that the reduction in her ability to hear was not significant enough for her to satisfy the required definition of disabled, which was clearly evidenced by her work at Wiltshire Constabulary. Instead Mrs Coffey alleged that Norfolk Constabulary directly discriminated against her because they perceived that her hearing loss was a disability and had treated her less favourably by rejecting her application based on that perception.
The Equality Act 2010 confirms that direct discrimination occurs where:
“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
As you can see there is no requirement for B to actually possess the protected characteristic (in this case disability) and therefore a person’s perception of another as having a disability can amount to direct discrimination. This includes job applicants such as the Claimant in this case, not just employees or workers .
The Employment Tribunal concluded that Norfolk Constabulary had discriminated against Mrs Coffey on the basis that they had perceived her to have a disability. The Tribunal concluded the only inference that could be drawn from the decision to reject Mrs Coffey’s application was the perception of Mrs Coffey’s disability and not a failure to meet required standard, otherwise Wiltshire Constabulary would be in breach of the Home Office guidance by employing Mrs Coffey.
Norfolk Constabulary appealed to the EAT denying that they had discriminated against Mrs Coffey by highlighting that they were aware Mrs Coffey’s hearing had not put her at a substantial disadvantage and therefore they could not have perceived her to be disabled.
The EAT rejected this argument on the basis of supplementary provisions in the Equality Act which states that the definition of disabled can be satisfied where the condition is progressive and therefore likely to have a substantial adverse effect in the future.
Norfolk Constabulary had cited in an internal memo that although Mrs Coffey was able to perform her role now, this was likely to worsen over time. The EAT found that this memo was enough to satisfy the required test for perceived disability when the supplemental provisions in the Equality Act were taken into account.
This case is an important reminder that an individual does not need to have a protected characteristic to bring a discrimination claim because claims for discrimination can be based on the perception of a protected characteristic. It is also noteworthy that the Claimant in this case never worked for the Respondent because the Equality Act covers not only employees and workers but job applicants as well.
If you are a regular reader of our blogs, you may have noticed our frequent updates regarding the pay workers receive to conduct sleep-in shifts and whether it should be paid at the relevant National Minimum Wage or National Living Wage (referred to collectively as “NMW” in this post) rate as opposed to a flat rate for staying the night. The main factors that determine whether a worker is entitled to the NMW for a sleep-in can be found in our most recent blog “Sleeping on the job: Clarification on sleep-in payments,”:
The focus now has turned to enforcing those workers’ rights. In order to do this workers can bring a claim for failure to pay NMW themselves as either an unlawful deduction from wages in the Employment Tribunal or alternatively, as a breach of contract claim in the County Court. Which of these options is the most appropriate will depend on the circumstances. Currently, a Tribunal can only award two years’ worth of back pay but there is no fee to submit a claim, whereas a County Court claim requires a fee which is dependent on the amount of money claimed but it could be possible to claim up to six years’ worth of back pay in the County Court.
Failure to comply with NMW can also be investigated by HMRC under direction from the Department of Business, Energy and Industrial Strategy. HMRC action can be instigated by workers or HMRC may discover underpayment of NMW through company audits.
If HMRC find that there has been an under-payment of the NMW they may issue a Notice of Underpayment which requires the employer to reimburse workers who have not been paid the NMW in full and HMRC can also issue a fine for payment within 28 days of the notice. The fine can be up to 200% of the underpayment or up to £20,000 per worker. This amount may be reduced if the employer pays off the underpayment within 14 days of receiving notice of it. In addition to the above, HMRC have the power to “name and shame” employers that fail to pay NMW and can pursue criminal enforcement.
Due to the emergence of sleep-in worker cases HMRC suspended enforcement action against employers for failure to pay NMW in these circumstances as fines were likely to have a significant financial impact on care providers. The suspension of enforcement action did not impact on the ability of workers to bring a claim for underpayment of NMW in the Court or Tribunal.
On 1 November 2017 enforcement activity by HMRC resumed. A new scheme was opened at the same time called the Social Care Compliance Scheme which allows employers in the social care sector to voluntarily “opt in” to the scheme. Once an employer has entered into the scheme they will have up to a year to identify what they owe to workers which can be supported by advice from HMRC. Following this self-review period, employers have up to three months to pay workers. Where an employer does not opt into the scheme they may be subject to normal enforcement procedures if they have not paid the correct level of NMW for sleep-ins conducted by their workers.
This new scheme is an attempt to give workers their entitlement to NMW but at the same time prevent bankrupting social care providers, which is clearly a fine balancing act.
As you can see from the comments posted in response to our other blogs on this topic there has been a lively debate about this issue which you are welcome to join. If you would like specific advice about your situation or the implications for your business please contact us directly.
On 23 November 2017, the Chancellor of the Exchequer announced his Autumn 2017 budget. Below are the key employment law considerations.
National Living Wage and National Minimum wage rates are due to increase in April 2018. They are due to change as follows:
Proposed April 2018 Rate
25 and above
This is clearly a significant increase as a full time worker earning the National Living Wage will have the equivalent of a £600 pay rise per year and it will therefore be important for employers to budget for this. Further, these increases to youth rates have been the largest in the last 10 years.
There have been some changes to taxation, increasing everyone’s personal allowance to £11,850 from the current £11,500. The higher rate tax threshold will increase from £45,000 to £46,350, meaning only employees earning £46,350 or above will be subject to the higher 40% rate of tax.
Earlier in the year Matthew Taylor published the Taylor Review of Modern Working Practices which recommended various changes to the way employment status is judged particularly for people working in what has rapidly become known as the gig economy. A specific recommendation of the Taylor Review was removing the focus on substitution clauses in consultancy contracts when deciding employment status. Traditionally employers have been able to use substitution clauses to indicate that they intend that an individual is self-employed, removing their liability for the rights associated with worker status (for example, holiday pay). For further discussion on the review, you can visit our blog post on “Employment Status: Taylor Review Update” by following this link:
The budget announces that the government will publish a discussion paper as part of the response to the Taylor Review with the intention of making employment status tests for both employment rights and tax clearer.
Unless you’re one of the undead you must have heard of the GDPR by now.
So what does GDPR stand for and where does it come from? The General Data Protection Regulation is a European Union Directive that will replace the Data Protection Act 1998 (DPA) in the UK.
The Brexiteers amongst you may think “Great, we can ignore that then” however you would be very wrong!
Firstly, the GDPR will become a reality in the UK on 25 May 2018 which is before the intended deadline for Brexit in March 2019 and secondly if we still want to be able to transfer data to and from Europe following Brexit the UK is required to have a data protection regime which is “adequate” in the eyes of EU law. In reality that means that the regime must meet the same minimum standards set by the rest of Europe who will be using the GDPR.
So no getting out of it then, unless your business can exist in a bubble and without the need to process data. In that case it’s time to start thinking about the type of data your business processes and how to ensure your business is protected from ghouls, ghosts and the GDPR.
Whilst the GDPR will affect all data collected and processed by your business the way in which you recruit and employ your employees is one aspect of your business which is likely to be affected more than most by the GDPR.
As an employer you need to check that they are who they say they are and not a murderous teenager hiding behind a hockey mask (ok, that one’s a bit thin… maybe I’ll leave the Halloween analogies for now). As standard information is gathered by employers during the recruitment process and often supplemented when the employee commences work, this makes you both a data controller and a data processor . Going forward you will need to think more carefully about what information you are asking for and why you need it as you will need to be able to justify collecting and processing it.
Personal data is data which is data that relates to a living individual (zombies and ghosts remain unprotected) and the individual must be identifiable from that data. It is given a broad definition and includes:
Information relating to the individual’s personal or family life, profession or business; Information used to inform or influence actions or decisions affecting that person; Information that focuses on the individual as its central theme rather than on an object, transaction or event; The individual’s name plus any other piece of identifying information such as telephone number, address, salary, working conditions, hobbies, or sickness record.
Under the GDPR, at the time data is obtained, the employer must provide to the employee with a wealth of information in writing including the purpose for which data is being processed, the potential recipient(s) of the data and how long it will be stored for as well as the fact that the employee has the right to rectification, erasure or restriction of processing “in a concise, transparent, intelligible and easily accessible form, using clear and plain language. ”
If anybody thinks this is not a significant task they are mistaken. Every time you obtain personal data or “special categories of personal data” (as sensitive data will now be called) about your employees you will need to consider a significant number of issues to ensure compliance with the GDPR.
In order for you to lawfully process personal data it will be necessary to ensure that at least one of the legal reasons set out in the GDPR applies. Unfortunately whilst consent from the data subject is one of the fair reasons for processing data it will rarely justify the processing of personal data alone under the GDPR. As such it will be necessary to find another potentially valid reason including:
Processing is necessary for the performance of the contract;
Processing is necessary for compliance with a legal obligation; or
Processing is necessary for the purposes of the legitimate interests pursued by the controller.
Clearly it will be necessary to obtain certain data in order to pay your employees and to comply with tax and pensions legislation but will all the information you gather as standard be necessary for this purpose? If not you may need to provide a further explanation to your employees about the purpose for which their data is gathered and who the recipients of that data will be. Something to think about…
And while we’re talking about it, all data that has been gathered previously is likely to need destroying and then collecting again in line with the GDPR unless at the time it was obtained you provided the detailed information required by the GDPR.
Under the GDPR there is a new requirement on data processors to show that they are accountable which essentially means you will have to be able to show that you are compliant with the GDPR and how you comply with its data protection principles. In practical terms this is likely to mean demonstrating that you have policies in place that have been implemented and are enforced, that your staff know what they can and cannot do with data and that if data is incorrectly processed you know how to deal quickly with a breach and that somebody will be responsible for this. Data
Subject Access Requests (DSAR)
It is a fundamental right that a data subject may request his or her data from a data controller. A Data Subject Access Request (DSAR) is the way in which a data subject can request their data. It is often used by employees to obtain data held about them by their employers.
Under the GDPR no fee will be payable by the employee for a DSAR unless the request is “manifestly unfounded or excessive, in particular because of their repetitive nature” . You will need to comply with a DSAR “without undue delay” and at the latest within one month of the request. It will be possible for the parties to agree an extension of time by up to a further two months but only in the event that the request is particularly complicated or there are numerous requests.
Whilst that might sound like bad news it is possible and indeed advisable, to request further specifics about the DSAR when it is received in order to streamline the request or to raise objections if the employee is asking for information which appears to have no relevance to their personal data.
For larger employers, if you don’t already, it may be wise to have certain employees trained up to deal with DSARs so that they can be dealt with quickly and efficiency.
Notification of a breach
Under the DPA there is at present no obligation on an organisation to notify the Information Commissioners Office (ICO) of any data breach. However, under the GDPR it will be mandatory to inform the ICO of any personal data breach without undue delay, and where feasible, within 72 hours of becoming aware of the breach (although the requirement is removed where the breach is unlikely to cause any risk to the data subjects). A data breach is easier than you think, an e-mail to the wrong recipient, for example. As an employer you should ensure that you have thought about how you will deal with this and have a process in place to deal with this eventuality, this will help you prove to the ICO that you take data protection seriously and that you are accountable.
Penalties for infringement
A final point to leave you terrified and wishing for the more obvious, “quiet, quiet, BANG!” type scares associated with Halloween. Fines for breaching the GDPR can in some circumstances reach 20 million EUR, or 4% of the total worldwide annual turnover of the business, whichever is higher.
The ghastly GDPR should not however be too scary if you plan ahead and act now. The deadline for compliance with the GDPR is 25 May 2018 and so you still have time before the axe swings.
Start thinking – it is unlikely all the data you currently hold has been gathered in accordance with the GDPR, can you cope without that data?
If not, how will you collect relevant data to continue operating?
Consider the size and nature of your business, employment is not the only area that will be affected, how will you ensure that you are accountable?
Who will be responsible for data protection compliance and what will happen in the event of a breach once the GDPR is in effect?
Consider whether you need to revise your data protection policies in light of the GDPR?
Take part in a survey we are conducting to get a better understanding about how ready businesses are for the GDPR:
Contact the data protection specialists at Taylor & Emmet if you need specialist advice on how the GDPR will impact your organisation.
For more information about Taylor&Emmet’s employment law services call telephone (0114) 218 4000, visit www.tayloremmet.co.uk or follow the firm on Twitter, @te_employment. Please note that this advice note is made in general terms only and does not replace specific legal advice.
 Data controller means,…, a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed.
 Data processor in relation to personal data means any person (other than an employee of the data controller) who processes the data on behalf of the data controller.
This is the latest in a series of blogs about the so-called “gig economy” and the rise in flexible jobs which do not neatly fall into any of the existing definition of employment status. In a move to address this issue the Government commissioned the Taylor report which has recently been published.
As a recap there are currently three categories of employment status: “employee,” “worker” and “self-employed independent contractor.” There are statutory definitions for the first two categories but the definitions are extremely broad, meaning a significant amount of case law has been generated by people trying to determine what their true employment status is. The law in this area has been adapted over the years in line with this case law and societal developments with the current focus being on the following when determining employment status:
The amount of control exerted over the individual;
How integrated the individual is into the company;
Whether the individual is obligated to do work offered by the company and whether the company is obliged to provide work;
Whether the individual is required to perform work personally;
Who provides the tools and equipment to do the job;
Who bears the risk of the success of failure of the job; and
Whether the individual has the opportunity to profit from their own good performance.
A slightly different test is applied by HMRC where a binary system of either “employee” or “self-employed” is used for tax purposes. This can quite clearly become confusing, especially to those individuals potentially being exploited on the basis of their employment status.
The Taylor Review of Modern Working Practices was published recently in order to look at this situation with the premise that “people should understand what employment rights they have”. The review makes wide-ranging recommendations for changes in the law, however this article focuses on the proposed changes to employment status.
The review recommends that the three tier system of status should remain but there should be a relabeling from “worker” to “dependent contractor”. The difference here will be to remove the spotlight from “personal service” which is currently a prerequisite for someone to be classified as a worker. This avoids the current situation where a cleverly drafted consultancy agreement which includes a clause giving the individual the right to substitute themselves for someone else at work can result in a finding that the individual is self-employed despite the individual not being entitled to control their rate of pay, hours of work or how they do the job.
Instead of personal service the review recommends that the law should focus on the amount of control the company has over the individual. This should make it harder for companies to “hide behind” substitution clauses in contracts. The review assures us that the test of whether someone is a “dependent contractor” will not simply be a test of control in terms of supervision of day-to-day activities but as no new definition of “dependent contractor” is proposed it seems difficult to escape the idea that a fact specific approach to the control test will still be necessary when determining whether someone is a dependent contractor in the same way as is required now when determining whether someone is a worker.
There are specific suggestions for dependent contractors in the review and suggestions for how the law on enforcement could be improved, such as:
Dependent contractors should have the right to a written statement at the start of their engagement, similar to employees; and
Individuals can request an assessment of their employment status as a preliminary issue prior to bringing an Employment Tribunal claim without a requirement to pay a fee.
The report also suggests that the burden should be on the company to show the individual is not an employee or a dependent contractor in these types of cases. The review also recommends that there should be more consistency between the definition of employment status for tax and employment law purposes.
The review has generated some good ideas for how the law in this area can be simplified and clarified for the benefit of both companies and those working in the gig economy. However, as with all Government reports a lot will depend on how many of the recommendations become law.
In a momentous ruling the Supreme Court have ruled that the Government’s policy of requiring Claimants to pay fees to bring a claim in the Employment Tribunal is unlawful. Tribunal fees were deemed unlawful because they prevent access to justice and because they are indirectly discriminatory, particularly against women who are more likely to work part time and are therefore disproportionately affect by the fees.
Fees were introduced nearly four years ago to the day by the Coalition Government in order to:
Transfer part of the cost burden from the taxpayer to the users of the Tribunal service; and
Reduce the number of weak or vexatious claims.
From July 2013 onwards Claimants have been required to pay a combined fee of up to £1,200, depending on the type of claim. This was argued by many to be outside the reach of most potential Claimants who by definition are likely to have just lost their jobs and therefore the fees regime came in for criticism as a barrier to Claimants seeking to enforce their employment rights.
Despite a fee remission system for Claimants with low household incomes and the ability of the Tribunal to make employers reimburse the fees to successful Claimants the number of Tribunal claims submitted since the introduction of Tribunal fees dropped by around 70% and the reason most frequently cited by potential Claimants for not taking their claim to an Employment Tribunal was this high upfront cost.
Whilst the Supreme Court found that the Tribunal system benefited wider society by deterring bad employment practice as well as those employees using the service it did not rule that the Government’s aims of transferring the cost onto the users of the system and deterring spurious litigation were invalid. The Court’s Judgment was however clear that the method the Government chose to pursue these aims was unlawful and discriminatory.
The Government responded immediately by confirming that fees would no longer be accepted for new Tribunal claims and that the £32million collected in fees over the last four years would be repaid. It is difficult to see how this will be done especially in cases which were settled and whether the Tribunal system even have a record of litigation which finished years ago.
We will have to wait to see if the Government make another attempt to introduce fees at a lower level but for now it is free again to access the Tribunal system.
Perhaps a bigger question is whether potential Claimants who could not afford to pay Tribunal fees now have a cause of action again despite being out of time to bring a claim. The Tribunal has the power to extend time limits in unfair dismissal cases if it was not reasonably practicable to bring a claim in time or where it is just and equitable to do so if the Claimant is alleging discrimination. I see no reason why potential Claimants in this situation could not issue a claim now for free using this Supreme Court decision to argue that the time limit to hear their claim should be extended because Tribunal fees prevented them from bringing a claim initially. This will not however be an option indefinitely as the Tribunal’s power to extend time limits on this basis is limited, potential Claimants will therefore lose the right make this argument if they do not act promptly.
There has been something of a predictable backlash against this ruling in some parts of the media who have suggested that this decision will lead to a flood of new claims but I genuinely think that employers who follow good employment law practice, have up to date HR procedures and employment contracts will have nothing to fear from a Tribunal system which once more allows access to justice for everyone.
If you would like advice as a result of this change in the law please contact us on 0114 218 4000 or email firstname.lastname@example.org.
There is no doubt Britain’s forthcoming exit from the EU will have a profound and lasting impact. Current political discussions are focusing on the difference between a soft and hard Brexit. A soft Brexit would involve Britain continuing as a member of the single market and allowing the free movement of goods and workers whilst a hard Brexit would end our involvement in both.
Other impacts have been less frequently discussed, but could be of significant importance for the future of Britain. One such area is the law and how this may change as a result of leaving the EU.
Currently, our government is required to implement all EU directives and the courts must comply with decisions made by the European Court of Justice (ECJ). Most likely to be affected are the laws relating to agriculture, intellectual property and the environment, all of which will no doubt be the subject of fierce negotiation during the next two years. Other areas which may have more of an impact for business owners and employees will be changes to the law on trade and employment.
Many employment rights, such as equality laws and rules relating to working time, are derived from EU directives.
Brexit will mean there is no requirement for us to follow the ECJ’s current, future or past decisions. It is even possible some matters could return to the courts and result in a completely different outcome. For example, the recent and infamous British Gas Trading Ltd v Lock case determined in certain situations employers should include commission in the calculation of holiday pay, but it could have ended very differently if UK courts were not required to interpret the law in line with previous decision of the ECJ.
Theresa May has indicated she will guarantee existing workers’ rights and enshrine current ECJ case law into UK legislation but critics of a hard Brexit point out this is only the position of the current Prime Minister. Indeed, the employment law landscape could alter radically once we leave the EU, depending on the political bias of future governments.
Many rules implemented by the EU enjoy broad public support, such as those preventing unlawful discrimination, but some were met with resistance when they were first introduced. Bodies lobbying on behalf of business would no doubt like to see the Agency Worker Regulations, 48-hour working week and TUPE legislation repealed or amended.
The government is unlikely to set out its position in relation to these more controversial employment laws until Brexit negotiations have concluded, but change is possible in these areas.
Commercial, consumer and contract law
Our membership of the EU has seen the existing British laws of commerce and contract expanded upon. There are however, some additional obligations imposed on us by membership of the EU, such as the right to cancel distance and doorstop transactions.
A soft Brexit is likely to mean we need to continue with many of the laws that govern the provision of goods and services, to ensure we can trade on an equal basis with other EU members. A hard Brexit, on the other hand, would give the government much greater scope to change how goods and services are provided.
Brexit of any kind will impact on how contractual disputes between British and EU companies are resolved. The terms of the contract between the parties is the starting point when determining which country’s courts can resolve a dispute but if a contract states the courts of EU member states will hear any claim for breach of the contract, then the UK courts may have no jurisdiction unless the contract is amended.
This may have unexpected effects on the contract, depending on the laws of the country that does have legal authority. It would be prudent therefore, for businesses to review their terms and conditions if trade with the EU is to continue following Brexit.
It is difficult to predict what the future holds for the law in Britain following Brexit and it seems as uncertain now as it did when we voted to leave the EU.
The government has sought to reassure businesses and individuals that they do not intend to change much, but there is no doubt a hard Brexit provides an opportunity to make radical modifications.
It is unlikely that there will be significant legal change before the Brexit process is completed and even then, changes are likely to be a gradual, rather than a wholesale shift.
In recent years there have been many employment law cases both in the UK and across Europe about what is “appropriate work attire”. The most high profile of these have been to do with an employee’s desire to express their religious beliefs through the wearing of headscarves or crucifixes at work. In such cases a balance must be struck between the employee’s right to manifest their religious beliefs and an employer’s right to impose a dress code on its employees.
Dress codes that result in employees being treated less favourably than their colleagues because of a protected characteristic (such as religion or belief, sex or race) are unlawful whereas those in place for health and safety reasons are generally permitted. However, the question then arises, as to how prescriptive an employer’s dress code can be where its requirements do not amount to discrimination and the employee is seeking to express themselves and their identity rather than a religious belief.
Nichola Thorp – High heels
In December 2015 Nichola Thorp attended the first day of her new job as a temporary receptionist at PricewaterhouseCoopers and was sent home for not wearing shoes with heels between two and four inches in height, which was a breach of the PwC dress code. This incident attracted a significant amount of media attention and a petition was signed by more than 150,000 people calling for the law to be changed to prevent employers making it mandatory for women to wear high heels for work. That petition resulted in an inquiry being carried out by the House of Commons’ Women and Equalities Committee and the resulting report was published in January 2017. The report concluded that a requirement on women to wear high heels at work could be damaging to their health and wellbeing and could, along with other dress code requirements, have the effect of making women feel sexualised and uncomfortable in the workplace.
Three main recommendations were made by the inquiry:
a) there should be an investigation in to the number of claims being brought in the Employment Tribunal relating to dress codes, how many of those are successful and how many are successfully defended on the basis that the policy is a proportionate means of achieving a legitimate aim.
b) consideration should be given to changing the law on discrimination in order to make the test of direct discrimination more subjective by giving the employee’s perception of the dress code more weight when deciding whether or not it is discriminatory and to create a defined list of legitimate aims in order to limit the arguments put forward by employers; and
c) there should be an awareness campaign to ensure that workers know their rights in respect of the standards of dress an employer can impose in the workplace.
In April this year the Government rejected the first two recommendations but have carried forward the proposal for an awareness campaign and the Government Equalities Office is going to work closely with ACAS, the Equality and Human Rights Commission and the Health and Safety Executive (HSE) to explore the options for making this possible. Their response is due this summer and is supposed to consider not only the requirement to wear high heels in light of both anti-discrimination and health and safety at work laws but also requirements in respect of make-up, hair, hosiery, skirt length and low cut tops, amongst other things.
However, one thing that will not be part of the campaign is the requirement on men to be clean shaven at work. Recently The Guardian published an article about a construction company who have banned its male employees from having beards other than for medical or religious reasons. The justification behind this policy is that beards prevent dust masks fitting properly and therefore reduce their effectiveness. It has long been the case in the catering industry that men with beards must cover them up in order to prevent hair getting into food and as such, health and safety considerations regarding beards are not new to the employment law sphere but is extending this policy to the construction industry excessive and “penny pinching” as alleged by UNITE? Or is it a step taken to genuinely protect the health and safety of employees?
The HSE are clear in their view that having a beard prevents standard dust masks from creating a seal around the nose and mouth and therefore creates a health and safety risk. Although there are alternative products on the market these are likely to be more expensive and therefore given the current fashion for beards a ban on facial hair, other than for religious or medical reasons, is a more cost effective way of protecting the health and safety of employees.
So how does this relate to a requirement to wear high heels at work and why do some organisations still have dress codes in which women are required to wear heels of a certain height?
The answer to that question is probably aesthetics. It appears that some organisations don’t believe women can look professional unless they wear heels despite the fact that there is a wealth of research suggesting that wearing high heels for prolonged periods of time can cause health problems ranging from corns and calluses to more serious and long term issues such as back problems and osteoporosis. On that basis, it seems unreasonable for women to be forced to endure footwear that could cause long term health problems, but crucially is it discriminatory?
In my view it could be, but as with a lot of Employment Tribunal claims it will come down to the facts of the case and the way it is pleaded. If the claim was pleaded on the basis that a requirement for women to wear high heels amounts to less favourable treatment than a comparable male employee because it unnecessarily puts their health at risk, then there might be a chance that a Tribunal could find it to be directly discriminatory. To date, the case law on dress codes has centred on policies relating to the length of a man’s hair or the requirement to wear a collar and tie. However, the difference in this case would be the health and safety implications, subject to appropriate evidence being adduced.
In my experience dress codes are not the type of policy that are regularly reviewed as they are not normally contentious. However, now may be the time to dust off your dress code policy and see whether it really is fit for purpose or whether it opens up your business to unnecessary risks. These are my ideas about how to ensure your dress code minimises the legal risk to your organisation:
• Ensure the dress code applies equally and have equivalent standards for everyone.
• Ensure that any requirements can be objectively justified and that there is not a less discriminatory way of achieving the same aim.
• Take into account any health and safety or religious implications of the dress code and be prepared to make adjustments where necessary.
When it comes to the issue of shoes and professionalism, the safest bet is to replace a requirement for women to wear high heels with a requirement that all employees wear smart shoes irrespective of gender unless there is a medical reason not to.
In what has been an eagerly anticipated case for both care workers and care providers the Employment Appeal Tribunal (EAT) has confirmed it’s decision in the case of Focus Care Agency Limited v Roberts  UKEAT/0143/16/DM. Regular readers of the Taylor & Emmet LLP Employment Team blogs will know that the recent reaction to the topic of payment of the National Minimum Wage for sleep-ins has caused significant controversy with workers, managers and care company owners engaging in lively debate about the issue in response to our previous blogs.
Finally it appears that the Focus case has provided some much needed legal clarity on the subject.
An employer is obliged to pay either the National Minimum Wage or National Living Wage (both NMW in this article) for all “working time.” Therefore the legal question to determine in this context is whether the time spent by a worker doing a sleeping night shift or “sleep-in” is classed as working time?
Interestingly the National Minimum Wage Regulations refer to hours where the worker is “awake for the purposes of working” as counting towards working time which on the face of it appears to exclude the hours a worker completes during a sleep-in as the worker would usually be sleeping during this time. However in recent cases a distinction has been made between whether the worker is “on-call” or working by “virtue of being present” during a sleep-in.
A worker that is completing a sleep-in has the possibility of being either and each situation will depend on the specific circumstances. If the worker is considered to be “on call” the employer will only be required to pay NMW for the hours that the worker is awake but if the worker is there “by virtue of being present” then an employer is required to pay NMW for the whole night shift. Whilst the Focus case confirms that there is no single factor that determines the answer to this it does set out a list of questions for a Tribunal to answer in order to distinguish whether the worker is “on-call” or working “by virtue of being present”:
What is the employer’s particular purpose in engaging the worker? For example, if the employer is subject to a regulatory or contractual requirement to have someone present then the worker is more likely to be working by virtue of being present;
What is the extent to which the worker’s activities are restricted? For example, if the worker would face a possible disciplinary if they did not remain on the premises throughout the shift then they are more likely to be working by virtue of being present;
What is the degree of responsibility undertaken by the worker?
How immediate is the requirement to provide services if something unexpected occurs? For example, if the worker is required to respond to a situation that develops during their shift then they are more likely to be working by virtue of being present.
The weight each factor carries is likely to vary according on the facts of the case and it should also be remembered that all pay received by the worker will be taken as an average together with the pay received for other hours worked and therefore if a worker is paid more than the NMW for hours worked when they are not doing sleep-ins this can off set the sleep-in payment and as a result can mean that a worker is in fact paid NMW for all hours worked despite receiving a flat rate for sleep-ins that is less than the NMW.
A pub manager who is provided with accommodation above the pub who has limited responsibility whilst sleeping (and there is an expectation to contact the emergency services if anything untoward happened) is unlikely to be considered working for the purposes of the NMW and therefore they are likely instead to be “on-call”, whereas following the Focus case it would in my view be an unusual set of circumstances which would mean that a care worker was not entitled to NWM during a sleep-in following this case.