Summer Lovin': the latest Employment & HR News
The sun has appeared (briefly) and a lucky few of us have disappeared for a well-earned break. For everyone else, read on for the latest employment law and HR matters:
Protect the data, protect your wallet: first Data Protection Act 2018 fines issued
The Information Commissioner’s Office (“ICO”) has announced its first fines under the Data Protection Act 2018: a £183m fine for British Airways (around 1.5% of its 2017 turnover – for more information, read here) and a £99m fine for Marriott. Both plan to appeal.
Under the new Act, maximum fines for data protection breaches have increased from £500k to the greater of €20m/4% of annual global turnover. Not all fines will be so large but it is a reminder of the potential cost to businesses. The ICO will always consider whether a business took appropriate steps to protect personal data. Top HR tips include: ensuring staff understand the importance of locking systems (electronic or physical) when unattended, educating them as to common cyber security matters (such as phishing emails) and prohibiting the access of systems via public, unprotected wi-fi.
Recent cases clarify the position regarding overtime and parental leave payments:
Does holiday pay include voluntary overtime? (Sometimes)
In the latest instalment of Flowers v East of England Ambulance Trust the Court of Appeal (“CA”) has confirmed that, when calculating holiday pay, employers should account for voluntary overtime: provided it is sufficiently regular and settled that payments amount to ‘normal’ remuneration. Reminder: genuinely voluntary overtime occurs where the employee is honestly free to choose whether or not to do it. Whether a pattern of voluntary overtime is regular and settled enough to reach this threshold will be determined on an individual basis.
Employers can pay enhanced maternity pay without enhancing shared parental pay
The CA has also confirmed that an employer can offer enhanced maternity pay whilst only offering statutory minimum shared parental pay for partners. It is not discriminatory to do so (Ali v Capita and Hextall v Chief Constable of Leicestershire Police). Women are afforded special treatment, when it is in connection with pregnancy or childbirth, and this special treatment includes enhanced maternity pay. The principal purpose of maternity leave is not childcare but other matters exclusive to the birth mother.
Post-termination restrictions: a win for employers?
Tillman v Egon Zehnder Ltd is a case about post-termination restrictions (“PTRs”), also known as restrictive covenants. The former employee (“T”) was subject to a non-competition PTR preventing her from being “interested in” a competing business for 12 months. As well as the clause preventing T from being, for example, an employee, the wording extended it to include owning any shareholding. The clause became too wide. If the words remained, the entire clause would be unenforceable. However, the Supreme Court held that the words could be deleted, so the rest of the clause (which was valid) remained in effect. Be aware: this will always depend on specific facts and wording. An unclear PTR may require legal proceedings to enforce it – incurring time, stress and potentially significant costs. The best approach remains a well thought out and drafted PTR that is clearly understood, agreed and less likely to be challenged at all.
Next: some key pregnancy and disability discrimination cases. Discrimination claims can be costly (in terms of money, time and reputation) and you should always seek early advice:
Pregnant employee subjected to hostile environment
In Walker v Arco Environmental Ltd, a pregnant employee (“W”) notified her manager of her pregnancy three weeks into her role. W was asked whether she knew she was pregnant when she accepted the job and felt ostracised by management. This created a hostile environment. Conduct which constitutes harassment can take place over a short period of time and a single comment (although this case was not limited to that) can be sufficient. W was discriminated against and unfairly dismissed. Don’t forget: when the principal reason for the dismissal (W resigned and claimed constructive dismissal) is pregnancy or maternity, this constitutes automatic unfair dismissal. No minimum period of service is required for an employee to bring a claim.
NHS Trust failed to adjust capability procedure – employee unfairly dismissed
In Regan v Kent Community Health NHS Foundation Trust, an administrator (“R”) was unfairly dismissed after developing cataracts which led to her making administrative errors. R’s employer implemented a capability procedure and set “unrealistic targets” for performance improvements. Although a fair procedure was initially followed, once R’s impairment became known it was no longer appropriate to persist in requiring improvement – at least without medical advice. The Trust should have adjusted its approach and set targets based on what R could achieve while visually impaired. Although employers should follow their policies, and implement them with consistency, they must be willing to adjust their normal approach when required. This can include setting targets but at a lower level or offering additional support.
Failure to consider reasonable adjustments = discrimination
An autistic employee (“S”) was discriminated against when his employer failed to take steps to understand his disability or implement any of two sets of reasonable adjustments recommended by Occupational Health (Sherbourne v N Power Ltd). S worked in a busy section of an open plan office and was distracted by noises and smells. He was dismissed without any adjustments being put in place or a capability procedure (which had commenced) being completed. Employers need to understand the different requirements of employees, especially those who are disabled, and put in place (or at least properly consider) recommended adjustments. It will be very difficult to defend a discrimination claim where potentially reasonable adjustments have simply been ignored.
Disabled employee could be refused overseas posting due to health issues
The CA has upheld a decision that an employee (“O”) was not discriminated against when an overseas assignment offer was withdrawn (Owen v AMEC Foster Wheeler Energy Ltd). O was offered the position and undertook a standard medical assessment, which identified O as at high risk of requiring medical attention while abroad, and the offer was withdrawn on this basis. O had a number of disabilities but they were not the reason for the employer’s decision. Any employee (who did not have O’s disabilities) at similar risk of requiring medical attention overseas would have been treated in the same way. There was no discrimination. There was also no failure to make reasonable adjustments as no less discriminatory alternative to the medical assessment could be identified.
Assessing disability: must you consider side effects from treatment? (Not always)
Under the Equality Act 2010, correctable visual impairments are specifically excluded. When assessing an impairment, corrected by treatment, consideration of that treatment’s side effects is not required. In Mart v Assessment Services Inc, the claimant (“M”) brought a discrimination claim due to her disability of diplopia (double vision). It was correctable by wearing a contact lens. M argued that the contact lens disfigured her by blacking out her eye and restricted her peripheral vision. The Employment Appeal Tribunal (“EAT”) held that her claim could not succeed because her disability was corrected (albeit at a cost). Where an employee has a disability corrected by treatment, but that creates its own practical impediments, this should be considered on a case by case basis. The correct approach is not always clear: it is sensible to take advice.
Two recent cases contrast fair and unfair approaches to disciplinary proceedings. Also, when does an employee’s conduct occur “in the course of employment”, exposing a business to claims?
Fair procedure: sermonising nurse was not unfairly dismissed
In Kuteh v Dartford and Gravesham NHS Trust, the CA held that a nurse (“K”) was not unfairly dismissed. K was required to make a basic enquiry as to patients’ religions. A number of patients complained that K (who is a committed Christian) had initiated unwanted religious conversations with them. This went outside her duties and she was instructed to stop. K continued and was dismissed for gross misconduct. The CA upheld the finding that K’s dismissal was fair. The employer found her conduct (which included ignoring a lawful instruction from her superior) to be improper, amounting to gross misconduct, and so summary dismissal was within the band of reasonable responses. It is worth noting that K did not bring a discrimination claim.
Unfair dismissal: process described by judge as a “show trial”
An employer unfairly dismissed an employee (“N”) in Nutt v SSE plc. N was awarded c.£230k in compensation. N raised health and safety issues, which SSE disagreed with, and subsequently a grievance – which was not upheld. N was accused of failing to accept its findings. Disciplinary proceedings were commenced. N was dismissed. The judge described the process as “reminiscent of a show trial in the former Soviet Union”: there was almost no investigation of, or discussion with N about, the allegations and no substantial reason to justify the dismissal. Disciplinary proceedings must be handled appropriately from the start – an employer’s conduct can lead to the fairness of proceedings being questioned (including whether a fair process is even possible). Allegations must be clear and properly investigated. The employee is entitled to know what those allegations are and have an opportunity to put their own case forward.
Are employers liable for employees’ Facebook posts? (Potentially, but not here)
In Forbes v LHR Airport Ltd, an employee (“S”) posted a racially offensive image on their private Facebook account. A colleague (“B”) was a Facebook friend. B showed the image to the claimant (“F”), who complained to their manager. F brought a harassment claim against their employer. The EAT held that the employer was not liable because S’s actions did not take place during the course of employment. S did not make the post at work nor mention her employer/colleagues. However, the EAT may have made a different finding had they been asked to consider the act of B showing the image to F, which did take place at work. Remember: it is sensible to set out clear ‘acceptable use’ guidelines for an employee’s online presence/use of social media – such as in a disciplinary and/or social media policy, which can govern professional and private use.
Please get in touch with the Employment Team if we can help you with any of the issues raised.
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