April 2017

Welcome

Hello, we’d like to share the latest news within Cluer HR as well as keeping you up to date with developments in the world of HR and employment law as they occur.

We hope you find it useful. Your comments and suggestions are always welcome.

Banning of headscarves at work does not constitute discrimination

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This was the decision for Achbita v G4S Secure Solutions. G4S in Belgium operated a policy of ‘neutrality’, banning all wearing of political, religious or similar signs. A Muslim employee announced she wanted to start wearing a headscarf; she was told she could not, and she was then dismissed.

The CJEU (Court of Justice of the European Union) held that G4S’s policy did not amount to direct discrimination on grounds of religion because it prohibited all religious signs, so it was not treating one religion less favourably than another. It also held that G4S’s rule introduced a difference in treatment which was indirectly based on religion, as Muslims are placed at a particular disadvantage. It held that an employer’s desire to project an image of neutrality was a legitimate aim provided it applied only to customer-facing employees, therefore leaving open the question of whether it would have been possible to redeploy Ms Achbite into a non- customer facing role (rather than dismiss her).

What are the implications of this ruling?

It provoked a strong reaction, not least because of some of the over simplistic interpretations of the application of the case. Important to note that this was a customer facing role and that the CJEU decision didn’t however bring into the question whether there should have been an obligation on the employer to find a non-customer facing role. An accompanying case also found that a customer asking a Muslim employee not to wear a headscarf is not a ‘genuine and determining occupational requirement’.

Bereavement and compassionate leave – what’s the right thing to do?

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After the COO of Facebook, Sheryl Sandberg announced that employees can take up to 20 days paid leave if an immediate family member dies – it makes us all ask this question. Sheryl lost her husband in 2015 and said “We need public policies that make it easier for people to care for their children, ageing parents and for people to mourn and heal after loss”.

A spokesperson for Damsons, a company that specialises in wills, funeral planning and estate administration, said: “For many, returning to work can be a positive distraction and a chance to regain routine”. However, if pressured back into work before they are ready, there is a chance that the employee won’t be very productive and it may even cause a delay in the grieving process, so how can business calculate the length of paid leave?

The Employment Rights Act gives employees a day-one right to have “reasonable” time off to deal with an emergency, which could include a bereavement involving a dependant, but that’s as far as the law goes. It’s good to have a policy to manage expectations but make sure that policies are scalable and flexible enough to accommodate individual circumstances.

Are your employment contracts silent on when notice is deemed to be given?

In April 2011, Ms Haywood was told she was at risk of redundancy. She turned 50 on 20 July 2011. Redundancy after her 50th birthday would have entitled her to a considerably more generous pension than redundancy beforehand. Ms Haywood was contractually entitled to be given 12 weeks’ notice, but her contract was silent about how notice was deemed given.

On 19 April 2011, Ms Haywood went on holiday, returning on 27 April. On 20 April, her employer sent notice of termination by recorded delivery and ordinary post and an email to her husband’s email address. She read the notice on her return from holiday.

Although the judges disagreed with each other about the reason why, the majority held contractual notice of termination was given on actual receipt rather than on delivery or any deemed date of receipt. Ms Haywood thus received notice on 27 April and termination took place after her 50th birthday.

In summary, where an employment contract is silent on when notice is deemed to be given, notice of termination takes effect from date of actual receipt [of letter in if writing].

Case: Newcastle Upon Tyne NHS Trust vs Haywood

The employee’s right to be accompanied

Stevens v University of Birmingham: In these proceedings, the claimant was seeking a declaration that he was entitled to be accompanied at an investigatory meeting by a person who did not meet the criteria as stipulated by the University conducting the investigation. A declaration was made giving the claimant permission to be accompanied by his choice of person.

The claimant explained that he had no friends who were employees of the University who would be suitable to accompany him to the meeting nor was he a member of a trade union. He requested to be accompanied by someone who did not satisfy these criteria saying that if he could not, he would be compelled to attend the meeting unaccompanied and that this would be unfair. Despite the university refusing on the grounds of setting a precedent, the court decided in the claimant’s favour on the grounds that it would be conspicuously unfair to insist that on the literal adherence to the terms specified.

What are the implications?

The law says that you have the right to be accompanied at a dismissal decision hearing by a fellow worker, a trade union official or a trade union representative (who has been certified by their union as being competent to accompany a worker) if you so wish. Your companion will, be able to put your case; sum up your case; and respond on your behalf to any view expressed at the hearing. He/she will also be allowed to confer with you during the hearing. However, he/she will not be able to answer questions your behalf. Employers often rely on this well-known guidance and take it as categoric advice. However it might not always be the case.

Long-term sick leave dismissals – Court Guidance

The Court of Appeal has provided guidance on when employers can dismiss an employee on long-term sick leave, in what judges described as a “borderline” case.

In O’Brien v Bolton St Catherine’s Academy, Ms O’Brien, the head of a department at a school, was attacked by a pupil. Her injuries were not serious and she returned to work after a short period. However, Ms O’Brien felt unsafe in parts of the school and was dissatisfied with what she saw as the school’s lack of action on dealing with aggressive pupils. She later went off work with stress.

After more than a year off work, the school sought clarification as to when she might be able to return to work and what adjustments it could make to facilitate her return. After some difficulty arranging meetings and clarifying Ms O’Brien’s state of health, the school subsequently dismissed her after a formal medical incapacity hearing under the school’s sickness absence management procedures.

Snooping around a job applicant’s social media profiles

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It might seem like second nature to check a job applicant’s Facebook – but where do you stand legally? In today’s technological age, it’s increasingly rare to come across someone without an online presence. It’s not surprising then, that many employers are tempted to trawl through job applicants’ social media profiles to see whether there are any potential skeletons in the closet. Although, while it might seem a good recruitment tool, pre-employment vetting needs to be used with caution.

So how should employers approach the question of online digging in their recruitment process?

If employers base their decision on information that has been discovered on social media (eg specifics about an injury, illness, culture, race, sexual orientation) it could result in a discrimination claim. How would the candidate find out? If the documentation obtained and generated during the recruitment process doesn’t tally with the decision made, then this can lead to the candidate asking awkward questions, and potentially a claim. Further, recording or using information about candidates from websites will fall under the data protection legislation, and it’s crucial to ensure that you don’t fall foul of its requirements.

It’s worthwhile having a clear policy ensuring consistency and fairness. Pre-employment vetting shouldn’t be used as a means of intelligence-gathering. Only as a means of obtaining specific information relevant to the particular role and only where there is no other less intrusive way of accessing that information. More often than not, there will be an alternative – and less risky – way. If you’re going to do it, do it right.

If you check on applicant’s, check them all and be open about the fact that you do it and disclose the reasons why. If you’d like to discuss this in further detail, please get in contact at [email protected]

Word of warning if you have apprentices….

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In Kinnear v Marley Eternit Ltd t/a Marley Contract Services, the employment tribunal awarded a roof tiler £25,000 over the breach of his contract of apprenticeship. Mr Kinnear became an apprentice roof tiler with Marley Eternit in October 2014. His contract of apprenticeship was due to run until November 2018. In June 2016, he was advised that there had been a downturn in business and that his employment was being terminated on the basis of redundancy. His appeal against dismissal was rejected. Mr Kinnear brought a claim for breach of contract in an employment tribunal. The company did not enter a defence to the employment tribunal claim.

In upholding Mr Kinnear’s claim, the tribunal noted that he had 122 weeks left to run on his apprenticeship. It assessed that he would have been paid £24,217 for the remainder of his apprenticeship. Please check apprentice contracts before making any hasty decisions and/or get in contact with us at [email protected]

National minimum wage increases

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On 1 April 2017, the rates of the national minimum wage increased, despite an increase in most rates on 1 October 2016.

This is so that the timing of the annual increase in the national living wage rate for workers aged 25 or over can align with the other national minimum wage rates. The rate for workers aged 25 and over (the national living wage) increases from £7.20 to £7.50. The rates within the other age bands also increase.

Do you receive our blogs? They could be just what your business is looking for…

This month we gave 5 quick tips on finding the right candidate as quickly as possible – something we’d all like to achieve! Read more in 5 Things Every Candidate Wants From A Job Advert. Also, if you’ve ever wondered why Occupational Health Reports help in terms of absence management – then we explain the nitty gritty and why you shouldn’t dismiss them. You can sign up to receive our blogs in your inbox or find the links on our social media pages.

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