Restrictions on Zero Hours Contracts

Prohibition on Exclusivity Clauses Finally Becomes Law

We reported in July 2014 on the Small Business, Enterprise and Employment Bill which, amongst other things, would make unenforceable any clause in a zero hours contract which prohibits the employee from doing work for anyone else, or where they have to obtain permission from their employer to do so.  This finally become law on 26th May.

Anti-avoidance measures are still to be introduced to try to stop employers getting around this ban. These measures will be coming out in the near future, but further details of them are to follow.  So far it appears that the ban on exclusivity clauses will apply also to contracts which guarantee only a limited weekly income - the threshold level of income has not yet been set, however. Also workers on zero hours contracts (or those earning below the weekly income threshold) will be protected from suffering a detriment on the grounds that they sought additional work elsewhere.  If they do suffer a detriment, they will be able to bring complaints to an employment tribunal.

We will let you know when these measures become law.  

Sexual Orientation v Religious Belief Discrimination

Baker guilty of direct discrimination over "Gay Cake"

Many of you will have heard of the recent case in Northern Ireland of a baker refusing to make a cake that carried a message in support of same sex marriage.  Whilst this is a case relating to the provision of goods and services, the key themes apply also to the field of employment law.

Ashers Bakery is run by a husband and wife team, the McArthurs, who hold very strong christian beliefs.  They decided not to accept the order for the cake because they felt that using their skills to produce the cake conflicted fundamentally with their beliefs. They were against same-sex marriage because, as Mrs McArthur stated, they believed that "the only divinely ordained sexual relationship is that between a man and a woman with the bonds of matrimony...Marriage is also to be between a man and a woman." 

The Court found that this amounted to direct discrimination against the plaintiff, Gareth Lee. They refused to provide the service to Mr Lee on the grounds of sexual orientation. They were not able to rely on their own religious belief as mitigation.

This case adds to a mounting number which bring religious belief and sexual orientation discrimination into apparent conflict. At the end of the day, it is always going to be unlawful to discriminate against someone directly because of their sexual orientation or because of their religious belief. And it is unlikely that any defence will get very far if it is to say that the discrimination was justified because of your own religious belief (or sexual orientation).  

The Living Wage

Are Employers Obliged to Pay Staff the Living Wage?

Boris Johnson, as the Mayor of London, has been a very vocal promoter of the Living Wage.  But what is it and how does it affect employers?

To be clear, the only statutory minimum level of pay that employers are obliged to give their staff is the National Minimum Wage (NMW).  The NMW rates are set out in the table below, with the standard adult rate currently set at £6.50 per hour.

The Living Wage is a level of pay somewhat higher than the NMW.  Campaigners say it is the lowest amount people need to earn in order to avoid living in poverty.  The current rate is £7.85 per hour (£9.15 in London).  It is reviewed annually by an independent body, and set by the Living Wage Foundation.  Unlike the NMW, there are no variations to the rate dependent on the employee's age.

Employers in traditionally low paid industries may choose to pay the Living Wage for a number of reasons, including to improve recruitment and retention, to engender good staff morale, and to promote themselves as socially responsible employers.

You can read more about the Living Wage at the Living Wage Foundation's website. 

Employment Law and the Election

Employment Tribunal Fees

One of the most dramatic changes to the employment law environment under the outgoing parliament, is the introduction of employment tribunal fees in 2013. Claimants now have to pay £250 in order to bring most types of claim to a tribunal, and a further £950 in order for their claim to proceed to a hearing.  This has resulted in a massive drop in claims, as many individuals who have just lost their job are unable to to pay these fees. 

Whilst this has been good news for employers, it does seem as if access to justice may have been curtailed for a number of genuine claimants.

It will be interesting, therefore, to consider what may happen to the employment tribunal fees under a new government.  Below, I have set out in brief the tack taken by the main political parties in their manifestos:

• Conservative

As they were the main drivers behind the introduction of fees, it is perhaps not surprising that they do not make any proposal to change the current system.

• Labour

"The Conservatives have introduced fees of up to £1,200 for employment tribunal claimants, creating a significant barrier to workplace justice. We will abolish the Government's employment tribunal fee system as part of wider reforms to make sure that affordability is not a barrier to workers having proper access to justice, employers get a quicker resolution, and the costs to the tax payer do not rise."

They do not mention, however, whether they will replace the system with a new one - perhaps by reducing the fees - or whether they will be scrapped altogether.

• Liberal Democrats

"We will...Improve the enforcement of employment rights, reviewing Employment Tribunal fees to ensure they are not a barrier." 

So any potential change will be dependent on the outcome of a "review".

• Green Party

"We will...reduce Employment Tribunal fees so that tribunals are accessible to workers."

A clear commitment to a reduction but no indication of by how much.

• UKIP

They make no mention of employment tribunal fees.

Is Obesity a Disability?

A report last summer on a case before the European Court of Justice (ECJ), suggested that an obese person may be classed as disabled for the purposes of equality legislation.  The Northern Ireland Industrial Tribunal has now followed the ECJ approach to this question in the case of Bickerstaff v Butcher.

Mr Bickerstaff was harassed at work by colleagues, including Mr Butcher, because of his weight.  He was morbidly obese, having a body mass index of 48.5, and suffered from poor health as a consequence.  He would be short of breath after only minimal exertion, and suffered from sleep apnoea and gout.

The medical evidence indicated that Mr Bickerstaff could end his morbid obesity after only 6 months, if he took active steps to lose weight.  However, there was no guarantee that he would do so.

The Tribunal took the same approach as the ECJ in ignoring the fact that the Claimant's obesity was self-inflicted and could probably be remedied if he were to take active steps to lose weight.  Instead it looked at whether his condition hindered full and active participation at work, which it clearly did.  Therefore, the Tribunal found that he was disabled for the purposes of the Equality Act, and that the harassment he had suffered was for a reason related to his disability, making it unlawful.

This case highlights the need to have an effective harassment policy in place, which aims to prevent harassment at work for any reason.  Managers also need to ensure that they take active steps to stop bullying in the workplace, including encouraging those who feel they are being bullied or harassed to report their concerns immediately.  

New Entitlement to Shared Parental Leave and Pay

Parents of children due (or placed for adoption) on or after 5th April 2015 may be entitled to up to 50 weeks' Shared Parental Leave (SPL).  They will need to have worked for at least 26 weeks and will need to satisfy certain earnings thresholds to qualify.

In order for SPL to be available, the mother (or main adopter) will need to give up some of their 52 weeks' Statutory Maternity or Adoption Leave. Whatever remains from that 52 weeks can be converted into SPL. The parents can opt to take this leave in any number of ways - they can take it together or separately; they can also take it in several separate chunks (of no less than one week) as long as the employer agrees to that approach. All of the leave must be used up within one year of the the child's birth or placement for adoption.

There are some quite detailed notification procedures that have to be followed by the employee.  They must give at least 8 weeks' notice of the intended start date for any period of SPL and will need to provide certain information about their partner (who may not be your employee, of course) in a signed declaration. The employer can also request further information in order to satisfy themselves of the employee's eligibility.

Employer and employee may need to meet to discuss the requested SPL, so employees will be encouraged to plan ahead as much as possible. Employers do not have to agree to requests for discontinuous SPL (i.e. where it is not to be taken in one block) but they must agree to requests for continuous leave.  

Employees can give 8 weeks' notice to change any SPL that is booked.  They can also give separate notices for separate periods of continuous Leave. They are permitted up to 3 notices (either to take SPL or to vary SPL already booked).

Most employees will also be eligible for Shared Parental Pay.  This is the same amount as the flat rate for Statutory Maternity Pay (SMP) (currently £138.14 per week).  The total period of statutory payments is 39 weeks, so the number of weeks of Shared Parental Pay will be whatever number of weeks' SMP (or Adoption Pay) remain unused.

Each employee has up to 20 Shared Parental Leave in Touch days. These are similar to the 10 Keeping in Touch days currently available to those on maternity or adoption leave, in that the employee does not have to take them and the employer does not have to allow them. 

Finally, Additional Paternity Leave will be replaced by SPL but the two-weeks' Statutory Paternity Leave still remains in place.  So some fathers may choose to take 2 weeks' Statutory Paternity Leave on the birth of their child followed by 50 weeks' Shared Parental Leave (where the mother agrees to this).

In reality, there has been very little take up of Additional Paternity Leave since it was introduced in 2011 so it is possible that this new type of leave will also be rarely used, with the majority of mothers still taking leave. However, it is a major step forward and the Government argues that giving parents the choice to share leave will make a big impact in number of cases where it is exercised. Let's wait and see!

A new year…. A new start? KSA are now hiring HR and Employment Law Associates.

Are you interested in working flexibly? We have an excellent client base up and down the country and are looking for experienced HR and employment lawyers to continue our plans for growth and expansion If you have experience of the full range of employment issues as well as preparing and delivering training then we’d like to hear from you. This role would suit an experienced lawyer or senior HR practitioner with least 5 years’ experience. Want to find out more …..? Visit www.kateshepherdassociates.co.uk, or for an initial confidential chat give us a call on 0845 9000899 E-mail hello@kateshepherdassociates.co.uk with your CV and tell us how you think you fit the bill