It is not uncommon for organisations to have a uniform policy but one of the most controversial issues is how far can employers justify preventing employees from wearing religious items which contravene the policy? Is there a legitimate aim to protect? Is your policy proportionate in achieving that aim?

The ECtHR held that the UK had failed to protect Mrs Eweida’s right to manifest her religion under Article 9 (freedom of religion) of the European Convention on Human Rights. She was a member of check-in staff for British Airways who was prevented from wearing a visible cross at work in accordance with BA’s uniform policy. The claim was brought in the ECtHR as her claim for religious discrimination claim had failed in the tribunal, EAT and Court of Appeal.

The key points from the ECtHR’s judgment was that:

• sufficient weight had not been given by UK courts as to whether the employer’s workplace restriction was proportionate.
•  a fair balance must be struck between the interests of the individual and of the community as a whole.
•  while BA’s desire to project a particular corporate image was undoubtedly legitimate, the UK courts had given it too much weight. There was no evidence that other employees wearing authorised religious clothing such as turbans and hijabs had any negative impact on BA’s brand or image.
•  an act must be intimately linked to the religion or belief to count as a manifestation. However, an applicant does not need to establish that an act is a requirement of their particular religion.

Mrs Eweida’s case can be distinguished from the other three cases heard at the same time. A clinical nurse’s case failed on the basis that the NHS Trust’s policy (which did not permit her to wear a crucifix) pursued the important legitimate aim of protecting the health and safety of staff and patients (Chaplin v Royal Devon & Exeter NHS Foundation Trust). The other two cases involved the dismissal of a registrar who refused to carry out new civil partnership duties and the dismissal of a sex counsellor who refused to counsel same-sex couples due to religious beliefs. They lost on the basis that the actions of the employers were a proportionate means of achieving the legitimate aim of providing a non-discriminatory service.

If your business has a uniform policy, it is a worth careful review to ensure it can be objectively justified if it potentially interferes with the expression of employees’ religious beliefs. Is there a legitimate aim to the policy? It seems that “corporate image” is unlikely to win, but health and safety reasons might well succeed. Employers should also be prepared to hear arguments from employees that “religious beliefs” should be interpreted widely enough to protect freedom of “conscience” and “thought” in line with Article 9 of the Convention.  While religious discrimination was not an issue here, it is also important to ensure any policies are not discriminatory in nature.

The post Does your uniform policy breach your employees’ human rights? appeared first on Hine Legal.

The key changes (which are intended to be implemented in Summer 2013) include:

• Fees will be paid by claimants on issue of a claim and for the tribunal hearing.

• Fees will be charged according to the “level” of the claims – Levels 1 and 2.

• Level 1 claims will cover the more “straightforward” claims such as unpaid wages, payment in lieu of notice and redundancy payments. The issue fee for these claims will be £160 and the hearing fee £230.

• Level 2 claims will include pretty much everything else such as those relating to unfair dismissal, discrimination complaints, equal pay claims and whistleblowing claims. The issue fee for these claims will be £250 and hearing fee £950.

• Fees will also be charged for appeals to the Employment Appeal Tribunal – £400 appeal fee; £1,200 hearing fee.

• There are several other fees which are to be paid by employers including:

a. applications to dismiss claims following settlement (£60);

b. mediation undertaken by judges (level 2 only – £600);

c. fee for counterclaims (level 1 only – £160).

Other features of the changes are:

• A fee-waiving system for those who would have difficulty paying the fees and meet the appropriate criteria (this will be the same as the current civil court remission system).

• Power to order reimbursement of fees by the unsuccessful party on the basis that the party who ultimately causes the tribunals to be used should bear the cost.

• No refunds where a fee for a hearing is paid but a hearing is no longer required.

It will be interesting to see the full impact of fee-charging in tribunals as to whether it will make a substantial difference to public spending and whether it will act as a deterrent for claimants to pursue claims (perhaps not for Level 1 claims), or to add vexatious discrimination claims to otherwise straightforward claims and whether it will encourage more settlement of claims. We would welcome your comments!

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Much has been written in the press recently about people being censured for comments they make on social media sites, while many employers are using draconian and somewhat outdated methods to try and prevent their staff from even using social networks whilst at work.

Employment law, just as the law of defamation, is coming under increasing pressure with the advent of sites like Facebook, Twitter and LinkedIn. Furthermore, with more and more people accessing these sites via mobile devices, trying to control what is being said by customers and employees alike is becoming more problematic.

The key thing is to have some form of social media policy within your organisation, which covers all aspects of internal and external communications, as well as employees’ personal accounts on social. Failure to do so may mean that your brand could be badly damaged.

Putting together these guidelines, which could then be incorporated into staff contracts and employee handbooks, you need to ask yourself some important questions:

How would you like your organisation to be represented online?

No longer do companies just have a website. They may now have a plethora of different online presences – Facebook, LinkedIn, YouTube, Google+, Pinterest, WordPress blogs etc. But do these adequately reflect your brand and are you prepared for negative feedback or potentially harmful comments?

What level of control would you like to exert over what staff can or cannot say online?

Personal social media accounts are just that. As an employer, you have little control over what your employees may or may not decide to publish. However, it is important to make it clear that anything posted which could harm the brand or the employee themselves, will be a disciplinary offence. Use the mantra: “Think first, post second!”

Do you allow access to social media sites during worktime?

Many companies ban social networks from their servers as they feel it distracts staff from getting on with their jobs. However, the same issue arose when computers were first introduced, email came into use and staff were connected to the internet. It is more a case of trusting your employees to get on with the job they were hired to do. Furthermore, 99% of people can access social networks via their phones anyway.

Is there sufficient internal communication between different departments?

No longer is it possible for departments within organisations to sit within separate silos. Social media now affects much more than marketing. Sales, PR, internal communications, HR, recruitment and customer services are all impacted so these departments need to be talking to each other.

Who has control over your corporate social media channels?

It is incredible the amount of companies who don’t have access to their own social media sites because whoever set them up has either disappeared or has lost the log-in. In the same way that you wouldn’t leave the keys to your car with a stranger, you need to be clear exactly who is/are the administrator(s) for your Twitter/Facebook Page or LinkedIn Company Profile.

What will you use these channels for?

It is imperative that if you decide to have corporate social media channels, you have clear business objectives which will be met. And if you are providing content, ensure that it is all ‘on-message’ and is not potentially harmful to the brand. Every blog post, tweet or Facebook update should be seen as being totally on the record and treated in the same way as a press release.

Where is the line between personal and business? i.e. Can staff have semi-corporate accounts?

It is vital that you make it clear what people can or cannot do on social. There are three ways to be on these sites: As a corporate entity, as a personal individual or as an individual acting under the auspices of a corporate body.

If someone is managing the corporate account eg @hinelegal then they are acting as the mouthpiece for that organisation. At the other end of the spectrum, if a member of staff has a Twitter account @fycgosdfh23 with no reference at all to their employer or what they do as a job, clearly they can do and say what they like, within the bounds of taste, the law, decency etc.

Then there is the grey area where staff members are posting content as themselves but make it clear where they are employed. In this case, firm guidelines must be laid down about what they can or cannot say. DON’T assume your staff are on message.

What procedures do you have in place to monitor what is being said about your organisation?

It is imperative that you know what is being said about your organisation online. Setting up Google Alerts (www.google.com/alerts) is a great way to monitor comments on the web. At the same time, going to Social Mention (www.socialmention.com) means you can find out what’s being said on social.

It is no good burying your head in the sand. If negative comments are being made, it is up to you to rectify them. Then you need to have a policy of dealing with them publicly (on the sites), privately (by messaging) or legally if the comments are libellous or harmful to your brand.

Remember, we are now in an age where everyone is now a potential publisher, editor or broadcaster irrespective of whether they are inside or outside of a place of work. Make sure you are adequately prepared!

David has almost 20 years experience of the UK media scene garnered from a career in journalism, in-house media relations, public relations, marketing communications and social media consultancy. A published author, he has trained over 1,500 professionals in the UK and abroad in using social media for business. www.linkedin.com/in/davidtaylormarketing

If you are concerned about the legal aspects raised in this article, or for help with your policies and procedures, then please contact us.

And if you would like to understand more about how social media could be impacting your business, you can contact David on 020 7427 1421 or email him at david@2010media.co.uk.

The post Social media: protecting your business and your employees appeared first on Hine Legal.

Given the legal implications for employers, it is assumed that many will want to contract with casual workers on the basis that they are not employees. However, achieving this can be problematic: even clear contractual provisions stating that the individual is not intended to be an employee will not be sufficient if a tribunal considers that the substance of the agreement between the parties does not, in fact, reflect this.

It is important to realise that the labels applied by the parties and the contractual documentation will not be determinative of employment status; what actually happens in practice will be equally important and tribunals may actually disregard express contractual provisions when determining an individual’s status. The task for an employment tribunal considering questions of employment status will be to identify what the actual legal obligations of the parties were. This will require an examination of the reality of the relationship, its context and all the relevant evidence. While this will include looking at the terms of any written contract, a tribunal may disregard written terms if it considers that these do not reflect what was actually agreed between the parties (or what were the true intentions or expectations of the parties). Evidence of how the parties conducted themselves may persuade a tribunal that this, rather than the express term, reflects the parties’ true intentions.

It may help if employers keep a clear distinction between their casual workers and their employees, for example, by not labelling them as employees for internal purposes and not providing the same benefits as given to employees. Where the employer is intending to engage casual workers on a self-employed basis, the billing arrangements for the work should reflect this (for example, the worker should render an invoice for payment and charge VAT where applicable).

Employers often believe that employing an individual on a fixed-term basis is desirable because this provides a greater level of flexibility. However, an employee on a fixed-term basis is entitled to exactly the same rights as an employee on a permanent contract once they acquire the necessary length of service, and that they also have additional protections against less favourable treatment.

If you use casual staff and would like to discuss the best way to contract with them please get in touch.

The post Are your casual staff employees? appeared first on Hine Legal.

For employees who have a fixed rate of pay i.e. an annual salary, it is fairly straight forward to calculate a “week’s pay” – you divide the annual salary by 52 and that is a week’s pay, to calculate a day’s pay you divide the annual salary by 260 (being the number of working days in the year based on a 5 day week). Likewise, where an employee is paid an hourly rate and has fixed working hours a week’s pay is calculated by reference to those fixed working hours at the hourly rate.

However, employees who do not have normal weekly hours/weekly pay are a little more complicated. Where an employee’s pay varies week to week depending on the number of hours worked a “week’s pay” is calculated as an average of all sums earned in the previous 12 working weeks, including any overtime and bonuses paid. If no salary is earned during one of those 12 weeks that week is disregarded and a further week considered. Where less than a week is taken the relevant proportion of the “week’s pay” will be payable. This means that in order to be legally compliant holiday payments will need to be calculated each time holiday is taken.

It also means that banking staff, for example, could end up being very well paid for their annual leave – remember they are entitled to 5.6 weeks in the same way full time employees are. Rolled up annual leave is unlawful under EU law, so bank staff cannot simply be “paid in lieu” as an additional sum to their hourly rate. The reason for this is that the law does not distinguish between bank workers who work the odd day or a couple of days here and there, who one would not expect to take annual leave during those short working periods, and those who work for continuous periods of weeks or months at a time. The practical solution is to draft the contract with the bank worker so that a payment in lieu of accrued annual leave is paid at the end of each period of working (each “assignment”), thereby treating each assignment as an individual short contract, with an overarching general contract setting out the general terms of each assignment. For this to be effective there must be no mutuality of obligation to provide or accept work in between each assignment.

We hope the above is helpful. If you would like to discuss this, or any other employment law problem, please do not hesitate to contact us.

The post How to calculate holiday pay appeared first on Hine Legal.

The Working Time Regulations specify that a full-time employee is entitled to a minimum of 5.6 weeks’ or 28 days’ holiday in a holiday year. The 5.6 week or 28 day minimum can include bank holidays (there are usually 8 public holidays per year, leaving 20 days of holiday for someone who works a 5 day week).

Part-time employees are entitled to the pro rata equivalent. If a part-time employee is given less holiday entitlement than a full-time employee (in proportion to their working hours), this will be considered less favourable treatment which can result in claims in the Employment Tribunals.

For example, an employee who works 2 days a week would receive the following entitlement based on the statutory minimum:

5.6 weeks x 2 days worked per week = 11.2 days per holiday year.

Where an employer offers a greater holiday entitlement, for example, 25 days plus bank holidays (33 days a year) to full-time employees, a part-time employee who works two days a week would receive the following entitlement:

6.6 weeks x 2 days worked per week = 13.2 days per holiday year.

Both of the above calculations include the employee’s entitlement to Bank Holidays. Bank Holidays are probably the biggest cause of confusion when it comes to calculating holiday entitlement for part-time staff.

The way most organisations deal with Bank Holidays for part-timers is to calculate the employee’s full holiday entitlement including Bank Holidays as a total figure. Then, where a Bank Holiday falls on a day when the employee would normally be required to work, they must use their holiday entitlement on that day. If the Bank Holiday falls on a day when the employee would not normally be at work, their entitlement is unaffected.

Of course, not all part-timers work full days – there are a variety of different working patterns. For example, someone might work a 19 hour week (as compared to a full-timer who works 38 hours). In that case, the holiday entitlement (including Bank Holidays) would need to be 50% of the full timer’s entitlement (including Bank Holidays).

Employers should also be careful when it comes to calculating the amount of accrued but untaken holiday pay that should be paid to a departing part-time employee. For a full-time employee the calculation can be easy. If the full-time employee is entitled to the 28 days statutory minimum, holiday accrues at a rate of 2.33 days per month worked and the pay is 1/260th of their salary (because there are 260 working days in a year (excluding weekends)). These calculations will need to be pro-rated for a part-time employee.

If you would like some help with calculating annual leave entitlements please do get in touch. Next week we will explain how to calculate holiday pay – this can be particularly difficult where employees work odd hours.

The post How much holiday should employers give to a part-time employee? appeared first on Hine Legal.

The answer is yes according to the Court of Appeal in a recent decision (Cavenagh v William Evans Ltd [2012] EWCA Civ 697).

In this case, the employee was made redundant and it was agreed he would be paid £65,000 in lieu of six month notice period as provided for under his service agreement. The company later discovered that the employee had stolen £10,000 from the company, diverting the funds to his pension provider while he was still employed.  The employer, therefore, considered it did not have to pay the notice payment.  The employee brought a debt claim for non-payment.

Surprisingly from a natural justice point of view, the Court of Appeal found in favour of the employee, stating that as the company had chosen to terminate the employment contract and pay the employee in lieu of his notice period it was not open to it to avoid its contractual obligations after termination by relying on an earlier act of gross misconduct. There was no principle of law nor an express term in the contract allowing them to do so.

Practical steps

This is a significant decision for businesses to take note of as it goes against what many may think of as being fair, however, businesses can and should protect themselves and avoid disputes by:

• Ensuring all service agreements and employment contracts expressly enable the business to avoid or claw back payments in lieu where gross misconduct is subsequently discovered during the notice period.
• Checking that any payments offered under settlement/compromise agreements are conditional upon the employee not having committed any prior gross misconduct.
• Including an express term in senior employees’ and directors’ service agreements requiring them to disclose their own wrongdoing or that undertaken by their colleagues.

Putting these clauses in place does not cost a lot but could protect your business.

The post Do employers have to pay employees in lieu of notice when the employee later committs gross misconduct? appeared first on Hine Legal.

What are the key features of the Bill that may affect your business?

• Parties to employment tribunal claims will be required to attempt pre-claim conciliation by way of a four-step procedure via ACAS before a Claimant can bring a claim. The time limits of submitting claims (typically three months from the act complained of) will be extended for this to take place.
• Variations to the compensation limit in unfair dismissal claims. The current cap on compensatory awards for unfair dismissal is £72,300, but this may change to one of the following:

1. A specific amount set at between one and three times’ UK median annual earnings, based on official figures (the current median average earnings is £26,200)

2. A specific number of weeks’ pay, to be not less than 52. It is not yet clear if this will be capped like redundancy payments or not.

3. The lower of the above two amounts

• It is thought that different amounts may apply to different employers, but it is not yet clear as to whether this will be by reference to an employer’s size, corporate status, sector or other factors.
• Financial penalties for employers who lose at tribunal – this will be up to 50% of the tribunal award payable to the Secretary of State where there are “one or more aggravating features” (currently not defined). The penalty will be a minimum of £100 and a capped at £5,000, reduced by half if it is paid within 21 days. These penalties will only apply to employers and not employees.
• The introduction of “legal officers” to hear certain claims, rather than a tribunal judge or panel. This would only take place with all of the parties’ consent.
• Changes to the whistleblowing legislation, requiring the disclosures made to be in the public interest, rather than simply breach of a legal obligation. This will limit the number of whistleblowing claims significantly as it will prevent claims based on complaints about employer’s breaches of the employee’s employment contract. The Claimant must have a reasonable belief that the act disclosed has been committed by the employer, and not a third party.

A greater understanding of the practical impact of the Bill will become clearer (or muddier!) during its passage through Parliament. The Bill’s second reading will take place on 11 June 2012. Follow our blogs for further updates!

The post Proposed Tribunal Reforms – The Enterprise Bill appeared first on Hine Legal.

Firstly, what is a compromise agreement? A compromise agreement is a legally binding settlement agreement between an employer and an employee, in which the employee (usually) accepts a sum of money in exchange for agreeing to give up any rights to bring any legal claims against their employer.

If you have been offered a compromise agreement by your employer it can be a confusing time. Below are a couple of the key clauses we would expect to see in a compromise agreement:

1. Reason for termination – It will assist you in applying for new jobs if you are clear on what you can say to prospective employers as to why your employment terminated.  This is particularly important as most agreements will prevent you from disclosing the existence, terms and circumstances leading up to termination. For example, it may be that you agree that your employment terminated by reason of redundancy or by mutual agreement or that you resigned.

2. Payment clause - This may include:

• Any compensation sum you are receiving for the loss of your employment.
• If applicable, a payment in lieu of your notice period.
• Payment in lieu of any untaken but accrued holiday entitlement.
• Payment of any bonus due to you.

3. Benefits -  If your employer provided benefits during your employment such as healthcare or life insurance, these often end on your termination date, however it is best to check this as it might be possible to extend beyond the termination date.

4. Shares – If you have share options, the scheme rules will provide what you are entitled to and when your shares vest – ask for a copy.

5. Tax – The starting point is that any money that is paid to you by your employer is subject to income tax and national insurance. However, up to £30,000 can be paid tax free under the income tax regulations providing the payment comprises solely of compensation for your loss of employment and/or fulfils the tax exemption clause of the relevant legislation. This compensation payment can include statutory redundancy payments, but does not apply to contractual payments, such as payments in lieu of notice (PILONs), bonuses or holiday pay. Any amount of the compensation payment in excess of £30,000 will be taxed at your usual rate.

Your employer is likely to ask that you indemnify it for any liability for income tax and employee national insurance on the compensation payment in the event that HMRC consider that any part of the sum is taxable and demands the payment of tax from your employer. You employer will then be entitled to seek recovery from you. If so, it is advisable to request that the employer notifies you of the demand and allows you a reasonable opportunity to challenge it with HMRC before payment becoming due.

6. Non-derogatory comments clause – Your employer is likely to request that you do not make any disparaging comments about their business, employees or directors at any time. It is advisable to make this a reciprocal duty so that your employer is under an obligation to ensure its staff do not make any such comments about you.  If you have particular concerns about specific individuals it may be possible to agree to name those individuals in the agreement.

7. Confidentiality – Your employer will want to ensure that you not only keep matters relating to the compromise agreement confidential (see above), but also all confidential information relating to the business. Similarly, you may want to ensure your employer also keeps matters relating to your termination confidential.

8. Restrictive Covenants – You may have clauses in your employment contract whcih apply after termination of your employment and which seek to restrict your activity after the end of the employment relationship, for example – non solicitation/non dealing of customers and non poaching of staff. You employer may want you to agree to continue to be bound by these as part of the agreement by restating them.  It may be that your employer is seeking to impose new post termination restrictions, in which case, a sum of money should be apportioned to this as consideration and that sum will be taxable. You will not want HMRC apportioning this after the event.

9. Reference – Most employers tend to provide standard references only which confirm your last role, the date you started with the business and the date you left. This is to avoid any claims for negligent misstatements if a future employer finds any of the statements contained in the reference are untrue and it has relied on such statements. However, it may be reasonable in certain circumstances to ask for a more full reference and this can be negotiated.

10. Outplacement – Your employer may agree, depending on the circumstances, to contribute to the cost of outplacement support to assist you in finding alternative employment. This is something you may wish to request.

11. Contribution to legal fees - Independent legal advice is required in order for a compromise agreement to be binding. It is, therefore, usual for an employer to offer a contribution towards your legal fees in order to encourage you to take such advice, however, there is no obligation on it to do so. The fact that your employer may contribute to your legal fees does not affect the independence of your adviser.

We hope the above gives you some helpful pointers. As ever, if you would like to get in touch we would love to hear from you either by commenting on this blog post, or by emailing us at solicitor@hinelegal.com. We are also on LinkedIn, Facebook and Twitter – just click on the icon on the home page.

The post Compromise agreements – what should you watch out for? appeared first on Hine Legal.

While a default retirement age was made unlawful in principal as being discrimination on grounds of age, unlike other strands of discrimination, it is possible to justify both direct and indirect age discrimination. Organisations are, therefore, permitted to retain a default retirement age, or indeed, discriminate in other ways, if they can show that the discrimination is a proportionate means of achieving a legitimate aim…clear as mud!

Thankfully last week the Supreme Court provided some guidance on what can be a legitimate aim in its judgements in two cases (both involving legal advisors!). The first concerned the imposition of a directly discriminatory retirement age and the other concerning the indirectly discriminatory effect of the default retirement age on an individual. Both cases concern the now repealed Employment Equality (Age) Regulations 2006; however the same wording is contained in the Equality Act 2010.

The Supreme Court has decided there is be two different tests for direct and indirect age discrimination.

Direct discrimination occurs where, because of a protected characteristic, for example age, an employer treats an individual less favourably than another (you are too old to do something…).

Indirect discrimination occurs where an employer applies an apparently neutral provision, criterion or practice that applies equally to all staff, but places the particular individual and those who share their protected characteristic, for example age, at a particular disadvantage (e.g. a shift pattern, fitness levels etc).

Direct Age Discrimination:

To justify direct age discrimination the legitimate aim must be social policy aims in the public interest, and the individual aims of the employer are insufficient. The Supreme Court in Seldon found that the social policy aims in the public interest are: intergenerational fairness (which includes facilitating access to employment by young people and workforce/succession planning) and dignity (which includes reducing the need to dismiss older workers on the grounds of performance). Not only must an employer justify the imposition of a default retirement age, it must then show that the age chosen is both appropriate and necessary. This will involve considering whether there are other, less discriminatory measures which could achieve the same aim. Employers must, therefore, consider whether an older retirement age would be just as effective. Seldon v Clarkson Wright & Jakes (a partnership) [2012] UKSC 16

Indirect Age Discrimination:

The range of aims which can justify indirect age discrimination is wider than the aims which can justify direct age discrimination. It is not limited to social policy aims but can encompass a real need on the part of the employer’s business, for example, in this case a need to recruit and retain sufficiently high calibre staff. As with direct age discrimination the employer will also need to show that the provision, criterion or practice used to achieve that real need is appropriate and necessary, considering whether there are other, less discriminatory measures which could achieve the same aim.  Homer v Chief Constable of West Yorkshire Police [2012] UKCS15

Practical Steps

• Do your employment contracts still contain a default retirement age? If so, can you objectively justify the inclusion by reference to one of the social policy aims of intergenerational fairness or dignity? Would an older age be more proportionate? Should you remove it? What do other organsations do in your sector?
•  In any event, we suggest you regularly have conversations with your employees of all ages regarding their plans for the future. You may find that your older employees would like to retire or reduce their working hours earlier than you had thought; it will also have given you a greater understanding of your younger workforce’s aims. These conversations can form part of the annual appraisal process.
• Consider your recruitment/promotion processes and policies. Are any of the requirements indirectly discriminatory? If so, is there a real need for your business to retain those requirements?

The post Age Discrimination – The impact of Seldon & Homer appeared first on Hine Legal.