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December 2019 newsletter

In this months edition...
In this months HR good practice, think about the dangers of employee misconduct at the Christmas Party.

What's on the horizon
**Updated New Living Wage Increase**
Recent cases

Refusing Rest Breaks 
Investigation Reports 
HR good practice

Christmas Party Season
Abbreviations used in this issue:
ET - Employment Tribunal
EAT - Employment Appeal Tribunal
Updates to member's toolkit
New - Mental health policy
New - Lone working policy
New - Social events policy
The following changes are due to come into force in April 2020.

As it's still a long way off, detail is still sketchy, but this is what is on the horizon so far:-

Increase in holiday reference period from 12 weeks to 52 weeks: the proposal is to increase the reference period used for determining a week's pay when calculating holiday pay for workers with irregular hours from 12 weeks to 52 weeks, which is seen to be a fairer time period to use

Extension of the right to a written statement of employment particulars to all workers:  
Written statement will be a day one right for all workers. Employers will also have to provide additional information as mandatory content for a written statement

Parental bereavement leave rights take effect: Provides for at least two weeks' leave for employees following the loss of a child under the age of 18 or a stillbirth after 24 weeks of pregnancy. Employees with 26 weeks' continuous service will be entitled to paid leave at the statutory rate and other employees will be entitled to unpaid leave

In April 2020, the IR35 Regulations will begin to take effect to medium and large companies in the private sector that contract with personal service companies for the provision of services. This has the effect that these companies will have to account for tax and national insurance through PAYE in the same way as the public sector has been required to do since April 2017. (See November Newsletter for more Information)

The Living Wage Foundation has outlined that rates have increased to £10.75 for workers based in London, and £9.30 for those in the rest of the UK.

Reviewed each year by the Living Wage Foundation, the voluntary Living Wage is based on the ‘real’ cost of living as is set by the Foundation, which is calculated by basing averages on a ‘basket of household goods and services’. Its purpose is to provide workers with higher minimum wage rates than what is currently facilitated by the government. As a voluntary scheme, organisations can choose to opt-in to paying the higher minimum wages but, once they have done so, must ensure worker salaries to fall into line with the rates as set by the Foundation.

These increases are as follows:
•    London Living Wage – increases by 1.8 per cent from £10.55 to £10.75 per hour
•    UK Living Wage – increases by 3.3 per cent from £9.00 to £9.30 per hour.

Going forward, all organisations who provide the ‘real’ Living Wage will now have until 1 May 2020 to implement these changes, although they are encouraged to do so as soon as possible. As of 2019, over 6,000 UK businesses have signed up to the scheme, which has resulted in a pay rise for in excess of 180,000 employees. This includes around one third of the FTSE 100, alongside recognisable, high-profile operators such as IKEA, ITV and Everton.

Although voluntary, providing the ‘real’ Living Wage can be an effective measure of both attracting employees to an organisation and retaining them. With Brexit uncertainty continuing to dominate the headlines, organisations may wish to consider introducing new measures that can assist them in finding the individuals they need to in order to ensure continued company development and progression.

The ‘real’ Living Wage is not to be confused with the National Living Wage (NLW). The NLW was introduced by the government in April 2016 and is the statutory minimum hourly rate that should be paid to all workers aged 25 and over. As the previously expected autumn budget has now been delayed due to the upcoming General Election, we still are unaware of what the new statutory rates will be come April 2020.

That said, organisations should make sure they are up to date with these developments. Those who do not pass on the increases to statutory rates will be operating in breach of the law. This could result in penalty fines of up to 200 per cent of the underpayment, which can be up to a maximum of £20,000 per worker.
Refusing rest breaks

Does refusing a rest break under the Working Time Regulations allow a wrongful dismissal claim

The Employment Appeal Tribunal (EAT) has held that a worker who was denied a rest break, and later threatened with dismissal when he refused to return to work as a result, was subjected to an unlawful detriment.

Under the Working Time Regulations 1998 (WTR), adult workers who work more than a six-hour shift are entitled to a rest break of at least 20 minutes. If they are asked to comply with a request that breaches the provisions of the WTR and refuse, such as not taking their break, they are protected from suffering a detriment as a result under section 45(A) of the Employment Rights Act 1996 (ERA). Section 101(A) of the ERA also outlines that it will be automatically unfair to dismiss the individual for this reason, meaning that they will not need length of service in order to bring a claim.

In this case, the claimant worked as a kitchen porter for the organisation, which involved him conducting duties for various clients at a number of locations. Whilst working for one client, ‘client L’, the claimant refused to stay longer and finish his shift when asked to by the Head Chef as he claimed that he had not been provided his statutory right to a rest break. Following this, he raised concerns with the organisation regarding the rest break issue, but no further action was taken by them.

Later, the claimant was asked to return to Client L but refused to, outlining that he had recently complained about Client L due to the rest break situation and was concerned that the Head Chef would ‘not be nice with him’. The organisation’s operational manager texted the employee in response, outlining that if he did not go as instructed, he would have ‘no job on support team’. When the claimant reaffirmed his refusal to go back, the manager sent him a further text that stated, ‘your P45 will be sent to you, good luck’.

The claimant brought numerous claims to the ET. He argued that he had been wrongfully dismissed due to the organisation breaching their contract. He also stated that the threat to dismiss him amounted to a detriment contrary to section 45(A) of the ERA and that his dismissal was automatically unfair as per section 101(A).  

The tribunal upheld his wrongful dismissal claim, finding that the organisation had ‘no proper basis’ for summarily dismissing the employee in the circumstances. However, the tribunal was not satisfied that the claimant had provided enough sufficient evidence for them to conclude that his refusal to return to Client L was because he specifically expected the Chef to once again refuse him breaks. This was because, during his evidence, the claimant had cited the Chef’s unpleasant behaviour as well as the rest break issue.

The claimant appealed against this decision to the Employment Appeal Tribunal (EAT), who allowed his appeal in relation to the section 45 claim, but remitted his additional claim of automatic unfair dismissal to the same tribunal for further review.

The EAT outlined that the tribunal had correctly identified that the main issue in this case was not why the claimant had originally left his shift whilst working for Client L; it was why he was refusing to return to them. Whilst the claimant did not specifically need to identify a contravention of the WTR, he was required to tell the organisation that his reason for the refusal to return to Client L was related to this.

The requirement to work in contravention of the WTR was a material influence on the claimant’s refusal to return to the client. There was no need for it to be the only reason. For this reason, the EAT found that the tribunal should have upheld his section 45A detriment complaint.

However, in order to determine if he had been automatically unfairly dismissed, the EAT made clear that the test was whether the refusal was the reason or principal reason for the dismissal. As they did not feel this point had been fully assessed by the tribunal, they therefore remitted the case back to them.

Note for employers
This sends a clear reminder to organisations of the dangers, and potential consequences, of attempting to operate in breach of the WTR. Employees will not need to have length of service to bring a claim. That said, they will need to explicitly state that they are refusing to comply with a requirement which will mean they will forgo their statutory entitlement. Without this specific information, they will not be protected.  
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Investigation Reports, amending information and scope of the investigation

The Employment Appeal Tribunal (EAT) has ruled that an employee was not unfairly dismissed despite content being removed from an investigation report into his conduct that expressed views in his favour.

Before undertaking a disciplinary procedure into alleged misconduct, organisations must first carry out a thorough investigation into the allegations. Acas recommends that the report produced from any investigation should not, from the facts gathered, provide an opinion on what the outcome decision should be. These reports should simply establish the facts and identify if there is scope to proceed to a disciplinary procedure.

The claimant in this case worked as an associate professor for the University of Reading. His appointment at the University was subject to a governing statute, which stated that he would only be dismissed for ‘immoral, scandalous or disgraceful (ISD) nature incompatible with the duties of the office or employment.’ Additional guidance provided to all University staff outlined that if a member of staff entered into a relationship with a student, they must not be ‘professionally involved with assessing or examining that student’ and inform their head of department.

Allegations were later made against the claimant, stating that he’d had a sexual relationship with a student without reporting it and had, therefore, abused his position of power and breached his duty of care. An investigation report into these allegations was later produced by an investigating manager, Professor Green, in conjunction with a HR representative.

The initial version of the report found ‘no evidence to suggest’ that the claimant’s conduct amounted to ISD contrary to the provisions of the statute. However, the final version removed this conclusion following advice from external solicitors, who stated that an investigation report should not set out its own evaluative conclusions. The claimant was later dismissed for gross misconduct and appealed against this decision. Although the external barrister who heard his appeal read the initial report in its entirety and considered the omissions, he upheld the decision to dismiss.

Original ET and EAT
The claimant’s original claim of unfair dismissal was dismissed by the employment tribunal (ET). Although they were concerned with the redactions to the investigation report, they ultimately accepted the integrity of Professor Green’s findings. He had signed off the final report genuinely believing it to be accurate.

On appeal, the Employment Appeal Tribunal (EAT) overturned this decision and remitted the case back to a fresh tribunal. They found that the report had been heavily influenced and amended by the university’s HR and in-house legal departments. This meant that the standards of objective fairness had been compromised. Additionally, the ET had failed to consider why Professor Green had seemingly changed his view to the claimant’s detriment.

The new tribunal once again found that it had been a fair decision to dismiss the claimant. They held that Professor Green had changed his view on advice from solicitors. On the balance of the facts, the university had been correct to leave overall conclusions as to whether the claimant’s conduct did amount to ISD to the disciplinary tribunal.

The claimant appealed on the grounds that the tribunal had not adequately addressed the arguments he put forward as to his dismissal not being fair, nor provided adequate reasons as to why they had been rejected.

The EAT dismissed his appeal, finding that the tribunal had correctly assessed the claimant’s claims.

They held that there was no suggestion that any evidence had been withheld from the investigation report, nor that any of this evidence had not been put before the disciplinary panel that had made the decision to dismiss the claimant. Furthermore, the external barrister had been made aware of, and considered, all omissions to the report at the appeal stage. He had been entitled to find that no pressure had been placed upon Professor Green to change the report.

Note for employers
Although the facts of this case are specific to the statutes and by-laws of Reading University, it does demonstrate to organisations the appropriate process for carrying out disciplinary investigations. If an investigation report is altered in any way following input from HR or legal, organisations will need to be able to demonstrate clear justification for the changes, which they were able to do here.

Tribunals will always look to ascertain if these changes were necessary and why they were made. It is therefore advisable that investigators are told what, exactly, they should investigate and not provide any evaluative opinions that should be determined within a disciplinary.

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Christmas Party Season is here. Organisations can be liable for Employee's actions.

Christmas is just around the corner and many organisations will likely be planning the annual Christmas party. However, they may not be thinking about the dangers of employee misconduct.
Christmas parties may seem like the ideal opportunity for organisations to allow their staff to let their hair down and dance the night away with their colleagues. That said, alcohol consumption, coupled with a relaxed social atmosphere, can foster situations which may not occur in the every-day office. Although such social gatherings are fundamentally a social and fun occasion they are also, as official company-organised events, an extension of the working environment.

Legally, organisations have a duty to protect the health, safety and welfare of their employees. By extension, they can be liable for actions committed by employees in the course of their employment if they cannot demonstrate they took ‘reasonable steps’ to prevent it. This includes forms of misconduct at company-organised events. In other words, if employees behave in an inappropriate, aggressive or dangerous manner whilst at the party, the organisation may be responsible for their actions.

Organisations can also be liable for misconduct that takes place within ‘after party drinks’. Although these are technically not officially organised by the company, liability can still arise if it can be established that the employee’s conduct was sufficiently connected to their position. An example of this was seen in the recent case of Bellman v Northampton Recruitment Limited, where a manager had punched one of his employees in the face after they, along with some colleagues, had gone for further drinks at a local hotel when the Christmas party concluded. The Court of Appeal found that the company was liable for the actions of the manager as, although this occurred in an after party, all drinks and taxis had been paid for by the company and the manager was acting within his management capacity.

Whilst organisations will want staff to have fun on the night, provisions should be in place to ensure behaviour doesn’t get out of hand. To this end, it is highly advisable to implement a policy which addresses office parties and work-related social events, outlining that staff have a duty to behave responsibly at all times. It is also advisable to issue individuals with a reminder that the organisation’s rules on acceptable behaviour will still apply at the event and that incidents of misconduct will be treated seriously. If an employee claims they have harassed by a colleague, swift action should be taken to deal with it in line with policy.

Top Tips
  • Brief Managers and Employees before events to remind them of their responsibilities.
  • Send out your Social Events Policy before big events in the organisations calendar.
A template Social Events Policy has been added to the Toolkit for members to download.
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This bulletin is for general information only.  It is not intended to constitute professional advice.  Though The Sevier Consultancy Group is confident of its accuracy, no duty of care is assumed to any recipient of the bulletin and no liability is accepted for any omission or inaccuracy.
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