the latest briefs.....

Check here for the very latest news on all employment issues…

Latest Brief - Week Ending 16 June 2017

Sex discrimination and shared parental pay

A male employee has succeeded in a direct sex discrimination claim for failure to pay enhanced shared parental pay, in circumstances where the employer paid enhanced maternity pay.  The Tribunal decided that the comparison between a man on shared parental leave and a woman on maternity leave was not prohibited by the Equality Act, on the basis that paying enhanced maternity pay (beyond the initial two week compulsory maternity leave period) did not amount to special treatment in connection with pregnancy or childbirth.  The Tribunal distinguished pregnancy or childbirth from caring for a newborn, commenting that nowadays, this is a responsibility that men are encouraged to share.  This decision contrasts with an earlier employment tribunal decision, and has been appealed to the EAT. This issue is likely to arise more and more frequently going forward, and it would therefore be helpful to get some clarity in relation to this point.  

Carry over of paid annual leave

The Advocate General has given an opinion in relation to a case about carry over of holiday pay in circumstances where the employee does not take holiday because their employer refuses to pay for it.  The Advocate General decided that a worker is entitled to be paid on termination for any periods of annual leave that have accrued during employment, which the worker has been discouraged from taking because it would have been unpaid.  This was on the basis that it was unreasonable to expect a worker to take annual leave before they knew whether they would be paid for it. 

Where a worker does not use their paid holiday entitlement because they would not be paid by the employer, the worker can claim he was prevented from exercising his right to such paid leave.  The right then carries over until the worker has had the opportunity to exercise it, in this case on termination of employment.

The worker does not have to ask to take his leave first before being able to establish whether he is entitled to be paid for it, because the risk of not being paid for the leave would be a deterrent to taking it.  The Court of Justice of the European Union normally, but not always, follows the opinion of the Advocate General.

And finally..

Two Managing Directors have been criticised after reportedly telling staff that their jobs were at risk if they failed to vote Conservative.  One sent an email to staff stating "If by any chance Labour win, we'll have to rethink a few things here at the company so if you value your job and want to hold onto your hard earned money vote Conservative."  An MD of a bookmaker warned staff to vote Conservative because of their liberal attitude towards fixed-odds betting terminals, and warned that if pledged by Labour and the Liberal Democrats were implemented, "business will be unable to continue and jobs will be lost."

Latest Brief - Week Ending 9 June 2017

Redundancy following sickness absence

The EAT has confirmed in a recent case that making an employee redundant after a period of disability-related sickness absence did not amount to discrimination arising from disability.  This was the case even though the reason for the redundancy situation arising was that it had become apparent to the employer during the employee's absence that it could manage without his post.  The EAT found that this was not sufficient on the facts to meet the test for discrimination arising from disability.  Even though the Tribunal had found that there was a link between the employee's absence and the decision to make him redundant, this was not the same as finding that he was dismissed because of his absence.  

Are employees under a duty to disclose their intention to compete?

Probably not.  In a recent case, two moderately senior employees planned to set up a new company in competition with their employer after their restrictive covenants expired.  After handing in their resignations, they were asked by their employer about their intentions going forward, and they lied.  The employer sought an injunction from the courts based on alleged misuse of confidential information, and the breach of the duty to answer questions truthfully.  The judge held that whilst there was a general duty to answer questions truthfully, he was reluctant to hold that a departing employee is under a contractual obligation to explain confidential plans to set up in lawful competition.  
It is worth noting that had the employees been senior enough to owe fiduciary duties to the employer, this decision might have been different.  

Assessment of non-compete clauses

When it comes to the interpretation of restrictive covenants, a court will consider whether the wording of such covenants was reasonable on the basis of the position that the employee held at the point that the covenants were entered into.  This can cause difficulties where employees are recruited to a junior role and then promoted, and their restrictive covenants are not updated.  

In a recent case, the High Court upheld a six month non-compete restriction, finding that it went no further than necessary to protect the legitimate business interests of the employer.  The employee was very senior at the time of the termination of her employment, but had not signed new restrictive covenants since she was originally hired in a more junior role.  However, as she had been recruited on the basis that she would be swiftly promoted, and the company had high hopes for her future potential, the court held that it was appropriate to consider this as part of the assessment of the reasonableness of the covenants.  The correct approach was therefore to determine the reasonableness of the covenant at the date of the contract by reference both to the employee's status at that time, and what was contemplated by the parties as a result of that.  The court also needed to have regard to the view taken at the time of the employee's prospects, and whether that in fact gave her a level of engagement with protectable interests which was greater than it would have been otherwise.

Latest Brief - Week Ending 2 June 2017

Territorial jurisdiction for overseas employees

The EAT has recently considered a case regarding whether an employee based abroad has the right to bring a claim for unfair dismissal in the UK.  The EAT confirmed in this case that the Tribunal should make an objective assessment of whether the employee has a strong connection to Great Britain in making this decision.  In this case, the Tribunal had found that the employee's employment did not have a strong connection with Great Britain, despite him having an employment contract governed by English law.  The Tribunal had accepted the employer's explanation that it had used its standard UK contract purely for convenience.  The EAT said that this explanation was subjective, and was not adequate for an objective assessment of all the circumstances.  The case has been remitted to the Tribunal to decide whether there is in fact a strong enough connection to Great Britain.  This case highlights the dangers of UK businesses using their standard terms and conditions for overseas employees without a more detailed consideration of the circumstances of the employee in question.  

Ramadan

Ramadan this year runs from 26th May to 24th June, and an estimated 4.2% of the UK population will be fasting as a consequence.  Observing Ramadan involves abstinence from food and drink from dawn until dusk, and some Muslims also adhere more strictly to their other religious obligations, such as praying, during this period.  Given the long hours that Muslims will be fasting this summer, businesses may consider implementing changes during Ramadan to assist those staff who may be struggling.  Suggestions include increasing general awareness about Ramadan among members of staff, and avoiding organising social events where alcohol will be consumed, to ensure that staff do not feel left out.  Businesses could also be more flexible with breaks, perhaps allowing for those who are fasting to take a number of shorter breaks, rather than a single lunch break.  Some employers may also wish to consider temporary flexible working arrangements, especially for those who have requested to observe Friday prayers, and may consider creating a temporary 'prayer room' for members of staff who may wish to use this.  Ultimately it is a matter for each employer whether to implement any of these suggestions, but businesses will certainly need to be aware of the impact of Ramadan on their employees, and ensure that these employees are not disadvantaged as a result of their observance of this.  

Union membership falls

The Office for National Statistics has announced that the number of union members has fallen to its lowest level since records began.  The figures show that union membership decreased by 275,000 in 2016, to a low of 6.2 million.  Of those members who have left the unions, 66,000 members were employed in the private sector, and 209,000 members in the public sector.  The TUC General Secretary attributed the findings to public sector cuts and the rise of the gig economy.  A researcher from the Resolution Trust has called on unions to evolve or face becoming "a 20th-century aberration".