September 2017


Hello, we would 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.

It’s all part of the service. We hope you find it useful. Your comments and suggestions are always welcome.

The Equality Act 2010

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The EAT has ruled in Asda Stores Ltd v Mrs S Bierley and others that claimants who work in Asda’s retail stores can compare themselves with higher paid men who work in distribution centres.

What Does This Mean For Employers?

The Equality Act 2010 requires employers to give men and women equal treatment in the terms and conditions of their employment contract if they are employed to do:

‘like work’ – work that is the same or broadly similar
work rated as equivalent under a job evaluation study
work found to be of equal value in terms of effort, skill or decision making.
Employees can compare any terms in the contract of employment with the equivalent terms in a comparators contract. A comparator is an employee of the opposite sex working for the same employer, doing like work of equal value.

Doing like work of equal value is the key here. Even if a woman does not perform like work to a male comparator and the employer has not carried out a job evaluation scheme, she can still claim her work is of equal value. The value of the jobs is measured by comparing them in terms of demands such as effort, skill and decision making. Successful equal value comparisons have been made between the work of, for example, speech therapists and clinical psychologists, and kitchen assistants and refuse workers. An employment tribunal can determine whether or not the claimant’s work is of equal value to that of the comparator or appoint an independent expert to carry out an assessment of the respective value of the jobs.

Has The National Living Wage Created ‘Unsustainable’ Cost Rises?

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The British Chambers of Commerce has released its annual workforce survey which shows that the National Living Wage, Apprenticeship Levy and Pensions Auto-enrolment could lead to reduced opportunities for investment and wage growth due to increased costs for businesses.

The BCC’s annual workforce survey interviewed some 1,400 businesses, citing these introductions as having increased business costs. A fifth of businesses complained that the apprenticeship levy was forcing up costs, while eight per cent said the same about the immigration skills charge. Finally, three quarters of companies report an increase in costs as a result of pensions auto-enrolment.

The Office for Budget Responsibility forecasts an increase in the national living wage to £8.75 by 2020, 38 per cent of businesses said they would put up the prices of their products or services – and 25 per cent said it would reduce pay growth. The changes to employment legislation were designed to help improve wages and prospects for workers, but the BCC is concerned that high employment costs will have a negative impact on employees.

The trade body wants the government to ensure no new upfront costs or taxes are imposed on businesses for the remainder of this Parliament. Jane Gratton, Head of Business Environment and Skills at BCC, said businesses are “under increasing pressure” from the burden of employment costs and she said this would influence the choices they make and outcomes for employees.

Can Personal Mail Be Private In The Workplace?

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Following a 2016 ECHR decision in Barbulescu v Romania, saying that a Romanian employer acted lawfully when it monitored an employee’s Yahoo messenger account – there has been a u-turn. The Chamber of the ECHR (7 judges, who take most of the decisions) appealed to the Grand Chamber (17 judges, the final tier and unusual). The Grand Chamber has come down more in favour of the right to privacy and reversed the decision.

It’s a complicated and nuanced judgment.

The main point is that workers have a right to respect for privacy in the workplace, and if an employer is going to monitor their emails and messages, the employer should (exceptional reasons aside) tell the worker that their communications might be monitored. Here, although the employee knew it was forbidden to use work computers for personal purposes, he had not been told that the employer was monitoring his communications.

What Can Employers Do To Avoid This?

Employers should ensure that they have a comprehensive computer policy that covers all issues relating to an employee’s use of email and the internet.

An important factor in this case was that the employer had such a policy and that it was able to show that the employee had accepted the terms by signing a copy of the computer policy.

Update on The Latest Revision to Tribunal Fees

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The Presidents of the Employment Tribunal in England & Wales, and Scotland have released a Joint Response to the Vento Bands Consultation.

The full rationale for the response is set out in the document, but the upshot is the new bands will apply to any claims issued on or after 11 September 2017 and will be:-

· lower band (less serious cases): £800 to £8,400

· middle band: £8,400 to £25,200

· upper band (the most serious cases): £25,200 to £42,000

· exceptional cases: over £42,000

These bands will be reviewed in March 2018 and thereafter annually.

Are You Inadvertently Discriminating Against Your Part-time Workers?

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If a part-time worker works more than 50% of full-time hours, but is paid only 50% of full-time salary, is that less favourable treatment contrary to the Part-Time Workers Regulations 2000? Yes, held the EAT in British Airways v Pinaud. If statistical evidence is available, can this be disregarded? No, the case being remitted on this second question.

Full-time crew worked a 6/3 pattern. Six days on, three days off, giving 243 available days and 122 days off each year. Part-timers worked a 14/14 pattern with ten available days required each fortnight. 50% of full-time availability (243) is 121.5 days. The part- timer had to be available for 130 days, 3.5% more. BA argued that the bidding system for work and bid choices created the anomaly but the EAT upheld that this was plainly less favourable treatment which could not be justified. Assessing justification, the ET suggested increasing part-time pay to 53.5% would “cure” the discrimination. The EAT held that this “simple expedient” oversimplified the matter. A freshly constituted tribunal would need to consider the impact by reviewing statistical evidence which had been disregarded by the ET in error.

If you’d like advice on whether your part-time workers are being paid fairly, please get in touch [email protected] or call us on 01386 751 740.

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They could save you time, money and a few bad apples. This month we further delved into the Holiday Pay/Overtime debate and clarified the latest thinking for anyone still left confused. Have you ever felt the right candidate for your vacancy slipped away, just because their performance in interview didn’t match their CV or experience? We give some tips on how to ensure that doesn’t happen again, in How To Pick Great Employees (Who Are Rubbish At Interviews).

If you have any concerns about the issues raised above in relation to your own business, please get in touch with us at [email protected] or call us on 01386 751 740.

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