ELiAction News: May 2019
Welcome to this month’s edition of the Employment Law in Action newsletter
It seems as if the holiday season is truly here with the number of public holidays we have enjoyed within a short space of time. This month we have been helping a number of clients in respect of the challenges that annual leave can cause in terms of calculating holiday for part timers, and also in respect of the process for allocating holidays where a number of employees want to be off at the same time. Also, the treatment of holiday entitlement for employees who are off sick can be confusing, and this has not been helped by the influx of case law. If you would like help in unravelling the complexities within this area, please do contact one of the team and we would be delighted to help.
In our newsletter, you will find an update on the tribunal backlog, consultation in respect of maternity protection, wellbeing and the impact of disability discrimination, and complying with the national minimum wage.
We hope you enjoy reading this month’s edition. If you need any further information, please do give us a call on our advice line.
With best wishes
Julia and Ros
In this month’s issue:
Employment Tribunal Backlog
The Employment Tribunal service is experiencing its highest level of claims since fees were scrapped in July 2017. Analysis by law firm, GQ Littler, revealed that there were 23,700 outstanding cases in the system from July to September 2018; a 77% increase on the same period in 2017.
This level of increase, combined with the failure to replace retiring Employment Judges and Lay Members in the years following the introduction of fees, means that many cases are not being listed for a hearing until over a year after being lodged. It is to be hoped that this situation will be improved by the appointment of 50 new employment judges across England and Wales between May and September this year.
Extension of Maternity Protection
Consultation has recently closed on extending the discrimination protection that currently applies to women on maternity to include the six months after they return to work. On 1st May 2019, the Women and Equality Select Committee published its response to the consultation; the Committee supports the proposal and recommends that similar protection should be extended to those on shared parental or adoption leave. If this comes into force, as seems likely, employers will have to ensure that when they are planning redundancies or reorganisations they consider the rights of not only employees on maternity leave, but also employees who have recently returned from maternity leave.
According to recent research, the volume of disability discrimination tribunal claims increased from 2017 to 2018 by 37%. The increase is partly explained by the growth in the number of claims based on stress related conditions. Employers need to ensure that they are taking measures to minimise the risk of such claims. This would include offering an Employee Assistance Programme, ensuring that appropriate adjustments are considered when you are aware that an employee is suffering from stress at work and preventive action is taken to identify and address risks such as long hours, poor working conditions or prolonged heavy workloads.
National Minimum Wage Non-Compliance on the Rise
The Low Pay Commission has published a report on National Minimum Wage non-compliance. The report showed a consistent increase in the number of cases of non-compliance since 2016, when the National Living Wage for workers aged 25 and over was introduced.
Some employers, particularly those in the retail sector, are falling foul of the law through the use of salary sacrifice schemes or deductions for uniforms. The British Retail Council called for a hiatus on enforcement in cases such as these, so called ‘technical’ breaches, but HMRC has rejected this call.
Any employer who pays their staff close to or at the minimum wage, should be wary of introducing any scheme where deductions are made from wages, even if it is with the agreement of the employee and to their benefit, such as salary sacrifice.
Proselytising at Work
The recent Court of Appeal case of Kuteh v Dartford and Gravesham NHS Trust concerned a nurse who often took the opportunity to talk to patients about religion. Following complaints from patients, she was warned that she should not initiate such conversations. She repeated the behaviour and was dismissed. The Court of Appeal dismissed her appeal against a finding that she had been fairly dismissed as they considered that her actions in both proselytising to patients and failing to follow a lawful management instruction warranted dismissal.
While is it unlawful to dismiss or discipline an employee simply on the grounds of their religious belief; it is not unlawful to take action against an employee who behaves in a way that is unacceptable on the grounds of their beliefs.