Employment Law: 5 fab facts for early March 2020

Having had a wet and miserable February, some of the following may brighten your day. Or just more of the same. We hope to be in better cheer for the rest of March.

1. Coronavirus – reported cases in the UK are still in low numbers, but WHO has proclaimed this a ‘public health emergency of international concern’ so what should you do? Employers have a statutory duty to safeguard the health and safety of employees which involves taking measures to protect the workforce so consider the following:

• Carry out a risk assessment for any business trips on a case by case basis, given the information at the time
• Consider interim measures, formulate a policy It may be sensible to cancel or postpone trips
• Request employees keep you informed about their holiday travel plans/destinations and let you know of anything else that happens which might increase their risk of exposure to the virus
• Employers may be justified in following government guidance of requiring individuals to stay at home for 14 days (quarantine) if there is genuine concern that they risk spreading the virus. This could be a period of working from home if they are not signed off sick but your approach should be consistent across the workforce
• Other measures would include using video conferencing, reminding employees about hygiene- such as washing hands after using public transport and recognising the relevant flu symptoms which may indicate infection

2. On 1 April 2020 the National Minimum Wage hourly rates will increase:

• £8.72 for those aged 25+ (currently £8.21)
• £6. 45 for those aged 18 to 20 (currently £6.15)
• £4.55 for those aged 16 to 17 (currently £4.35)
• £4.55 for apprentices (currently £3.90)

3. In our January tips, we wrote about the new requirement from 6 April 2020 for statements of employment (usually the employment contract containing certain prescribed information) to be given from day one to all employees and a similar statement to be given to workers. The template contract for workers will be different as there are a number of provisions that apply to employees that should not be included, to do so could strengthen a worker’s claim that he/she is in reality an employee.

From 6 April new employment statements for employees must in addition to the information already required, al cover the following:

• Hours of work- not just normal working hours, but specify days of the week, and if they vary, details of how they vary
• Details of all benefits – contractual and those that are non-contractual, being careful to identify them clearly as such
• Details of any probationary period, its length and any other conditions relating to it
• Training particulars- identifying any mandatory training that the employee has to pay for and/or any training entitlement which must be completed (note, there is also a requirement to specify any other training entitlement which can be provided in a separate document within 2 months of starting)
• State where particulars of any paid leave (not already included in the statement) can be found (eg any statutory family type leave, jury service or compassionate leave)

4. An employer can fairly dismiss an employee to protect its own reputation when that employee has been charged with (but not yet convicted of) a criminal offence In Lafferty v Nuffield Health (UKEAT/0006/19). the EAT found that the dismissal was fair. The Claimant was a theatre porter, whose duties included moving anaesthetised patients to and from operating theatres. He had an unblemished disciplinary record. He was charged with a serious sexual offence not connected with work. He denied the offence and both he and the police informed his employer. He was dismissed on the ground that there was a risk to reputation in continuing to employ him, when, if he were to be convicted, he had access to vulnerable patients. The EAT described this as “quite a difficult case” in dismissing his appeal against the finding that his dismissal was fair.

5. Employers should not be liable to a sex discrimination (or equal pay) claim if they operate an enhanced maternity pay policy and a statutory rate of Shared Parental Leave pay (‘SPL”) policy. In the case of Hextall v Chief Constable of Leicestershire Police in May 2019, the Court of Appeal found that it was not sex discrimination for the employer to provide only the statutory rate (“SPL”) pay to men, while providing enhanced maternity pay to women. Mr Hextall appealed and very recently, the Supreme Court declined to hear the appeal so the Court of Appeal’s judgments stand:

• rejecting arguments that this could be direct discrimination (as put forward in (Ali v Capita Customer Management Ltd) – the court held that the correct comparison was between a man and woman taking SPL, not between a man taking SPL and a woman taking maternity leave; and
• rejecting that this could be indirect discrimination (as put forward in Hextall) – they said that the claim should properly be brought as an equal pay claim and even then it would fail due to (i) the rule that more favourable treatment terms are permitted in connection with pregnancy or childbirth and (ii) the correct pool for comparison purposes for indirect discrimination was a pool of men and women taking SPL and excluding women taking maternity leave. Based on this pool, where men and women are paid the same rate of SPL pay, there was no disadvantage to men. The Court of Appeal stated that women taking maternity leave are in a materially different position from men and women taking SPL.