Welcome to our January 2016 Employment Law newsletter, keeping you up to date with changes in employment law and informing you of recent case developments.
DEVELOPMENTS TO LEGISLATION
The draft National Minimum Wage (Amendment) Regulations 2016 published
These regulations have been laid before Parliament and will come into force on 1 April 2016.
They amend the National Minimum Wage Regulations 2015 to add the National Living Wage (NLW) rate of £7.20 an hour for workers aged 25 and over. In the July 2015 Budget, the government announced that it would introduce the NLW at a premium of 50 pence above the NMW rate, to take effect from April 2016.
They also amend the National Minimum Wage Act 1998 by increasing the financial penalty payable by employers who underpay the NMW from 100% to 200% of the underpayment due to each worker.
Exclusivity Terms in Zero Hours Contracts
The Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 come into force today, 11th January 2016, to provide a remedy for zero hours workers against employers who include exclusivity clauses in their contracts of employment. The Regulations give zero hours employees the right not to be unfairly dismissed and zero hours employees and workers the right to not be subjected to a detriment for failing to comply with an exclusivity clause.
CASE LAW DEVELOPMENTS
Are disciplinary sanctions under sickness absence policies subject to the reasonable adjustments duty?
Yes, held the Court of Appeal in Griffiths v The Secretary of State for Work and Pensions 
Griffiths suffered from post-viral fatigue and fibromyalgia. She asked her employer to withdraw a warning she had received following a 66-day absence from work (mostly attributable to her disability) and to modify the policy for the future so that she could have longer periods of absence without sanction than would be permitted for a non-disabled employee. Her employer refused and Griffiths complained of a failure to make reasonable adjustments.
The Court of Appeal determined that although, on the facts, the tribunal were entitled to conclude that these steps were not reasonable for the employer to take, they were wrong to conclude that the duty to make reasonable adjustments was not engaged at all just because disabled and non-disabled employees were treated equally under the policy.
The Court of Appeal helped to clarify this confusing area by confirming that the duty to make reasonable adjustments does arise in cases such as this. They emphasised that the duty goes beyond equal treatment and requires employers to take positive steps.
Therefore, although the employee in this case did not succeed in her claim, employers should ensure that they have regard to the duty to make adjustments when issuing disciplinary warnings for sickness absence where there is a relevant disability.
TUPE – Can subsequent events be taken into account when assessing whether a task was of “short-term duration”?
Yes, held the EAT in ICTS UK Ltd v Mahdi and others 
The EAT has allowed an appeal against an employment tribunal’s decision that there was no service provision change under TUPE 2006 where a new owner of a university campus appointed a new security provider, purportedly on an interim basis, pending an expected redevelopment of the site. The new security provider refused to take on the existing security staff, as they argued that the activities carried out did not amount to a service provision change because they were in connection with a “single specific event or task of short-term duration”. They submitted that they were not securing an operating or functioning site as the previous contractors had been. They were merely looking after the site pending redevelopment.
The EAT held that when deciding whether or not there was a genuine intention for the activities to be of short term duration, the employment judge should not have ignored events occurring after the alleged transfer. Although it is the client’s intention at the time of the alleged transfer that is relevant, the EAT held that subsequent events may cast light on what the relevant intention was at that time. In this case the tribunal should not have ignored the fact that by the time of the hearing planning permission had not been obtained and building work had not commenced.
Please therefore take care when relying on a ‘short-term task’ argument to avoid a TUPE transfer as there could be consequences later down the line if the contract or activities end up lasting longer than envisaged at the outset.
Was an instruction not to speak an employee’s native language at work discriminatory?
No, held the EAT in Kelly v Covance Laboratories Ltd 
The Russian born claimant alleged that she had been subjected to discrimination and harassment on the grounds of her race or national origin when she was instructed not to speak Russian at work. She worked in an animal testing laboratory and her conduct in leaving her workstation and speaking Russian on her mobile phone made her employers suspect that she might be an animal rights infiltrator.
On the facts found by the employment tribunal the language policy operated by the employer to speak only English at work was unrelated to the employee’s nationality or national origins. The requirement was in place due to the need for the English speaking managers to understand any conversations for security reasons. In the context of this particular workplace the EAT decided that the request was reasonable especially given the claimant’s suspicious behaviour. There was also no evidence of harassment.
Although this Claimant did not succeed with her claim, a ban on the use of a foreign language at work could certainly amount to direct discrimination or harassment on different facts. Please take advice from us before introducing any similar policies or rules.
Should a disabled employee be required to attend a competitive interview as part of a redundancy selection process?
No, held the ET in Waddingham v NHS Business Services Authority 
A disabled NHS employee has succeeded in his claim for failure to make reasonable adjustments when he did not achieve the required score in a competitive interview for an internal post. The employee, whose existing position was at risk of redundancy, indicated that he wanted to proceed with the interview, despite having been signed off sick while he was receiving cancer treatment. The tribunal found that while it was necessary to have some form of assessment, the employer should have carried this out on the basis of existing data about his performance, including appraisals from previous posts.
The failure to appoint the employee to the role also amounted to discrimination arising from his disability. He was unsuccessful because of his poor performance at interview, which had been adversely affected by his condition.
This case highlights the real difficulties employers face during redundancy selection processes when applying them to those with a disability or other protected characteristic. If in doubt, please seek advice from one of our employment specialists.
Holiday pay – When part time workers increase their hours does an employer have to recalculate and increase entitlement retrospectively?
No, said the ECJ in Greenfield v The Care Bureau Ltd 
The Claimant’s working hours and days varied from week to week. She took 7 days’ paid leave at a time when she was working one day a week (the equivalent of 7 weeks’ leave). Her employer said this exhausted her entitlement. She then increased her hours to 12 days on, 2 days off each fortnight. After her employment ended, she claimed a payment for accrued but untaken annual leave.
When a worker increases their hours, any statutory annual leave that has already accrued does not need to be recalculated retrospectively to take account of the increased working hours. However, going forward, leave entitlement should be recalculated to reflect the new working pattern. Any leave taken in excess of the entitlement that applied under the previous working pattern should be deducted from the leave going forward.
Holiday entitlement calculations are always tricky especially when dealing with part time workers. If you have any queries regarding this case or a similar situation please do not hesitate to contact us.
If you require any further clarification in relation to the above developments, or if you need any further assistance then please do not hesitate to contact our team of specialist employment solicitors on 0161 832 3304.
This newsletter does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.