Written statements of employment

Screen capture by Seán J Crossan

In the UK, the beginning of April is always an important period for employment lawyers because the British Government and/or the Westminster Parliament typically introduce new laws which directly impact on people’s terms and conditions of employment.

There is no such thing as one document which contains all the terms of an employment contract – something that my students and members of the public have difficulty understanding at first. It is important to grasp from the outset that there are various sources of the employment contract which include, amongst other things:

  • The written statement of the main terms and conditions of the contract (as per Section 1 of the Employment Rights Act 1996)
  • Employee handbooks (e.g. available on employer’s intranet)
  • Employer’s policies and codes of conduct (e.g. disciplinary codes)
  • EU Laws, Acts of Parliament and statutory instruments (e.g. Employment Rights Act 1996, Equality Act 2010, TUPE Regulations 2006, Equal Treatment Directives)
  • Judicial precedent and the common law (e.g. Walker v Northumberland County Council 1 AER 737)

Today new rules come into force about the written statement of the main terms of employment. Previously, only employees were entitled to receive such a document which had to be issued by an employer within 8 weeks of the commencement of employment (as per Section 1 of the Employment Rights Act 1996). Now, an employer must issue a written statement to both employees and workers from or before day 1 of their employment or engagement.

The written statement will contain important information about the contract of employment, such as:

  • The employee’s name
  • The employer’s name
  • Date when employment commenced and period of continuous service
  • The rate of pay and how often the employee is paid
  • Working hours
  • Holiday entitlement
  • Sick pay entitlement
  • Pensionable service and details of employer’s pension scheme
  • Notice requirements
  • Job title or brief JOD description
  • Whether the job is permanent/temporary/fixed term
  • The location of the employee’s place of work
  • The existence of collective agreements and how they affect the contract
  • Arrangements for working outside the UK (if relevant)
  • Details of disciplinary and grievance procedures

Furthermore, as a result of today’s changes to the law, the written statement must also address the following matters:

  • The hours and days of the week that the employee/worker must work for the employer and whether they can be changed and the mechanism for doing so
  • Entitlement to any paid leave
  • Entitlement to contractual benefits which have not already been addressed in the written statement
  • Probationary periods (if relevant)
  • Training opportunities provided by the employer

The legal status of the written agreement

The written statement is not the contract of employment itself because no single document could possibly encompass all the terms of such an agreement. There is nothing to stop the parties adopting the statement as the contract of employment, but it is important to understand that it can be varied or altered as a result of legislative changes, court decisions and collective agreements.

As of today, entitlement to leave for bereaved parents is being introduced; increases to the National Minimum and Living Wages come into force; and increases to a range of statutory payments are also taking place. With all of this going on, it would be very difficult – if not impossible – for any written statement to express the totality of the employment contract in any meaningful sense.

Failure to issue a written statement

Section 38 of the Employment Act 2002 gives employees the right to pursue an Employment Tribunal claim against an employer for failure to issue a written statement. This type of claim would usually be brought by an employee as part of another claim against the employer e.g. dismissal or discrimination claims. In such an instance, the employee would state on the Tribunal application (the ‘ET1’) that the employer had failed to issue written terms. It is always worthwhile submitting this type of claim as part of the bigger picture of the employee’s grievance because an Employment Tribunal could issue an award worth up to 4 weeks’ wages.

Any employee who is dismissed by the employer for requesting their statutory right to receive a written statement will have the right to pursue a claim for unfair dismissal in terms of the Employment Rights Act 1996.

An example of an extract taken from an ET1 form can be seen below:

Fictional example of an Employment Tribunal claim by Seán J Crossan

Employment status

The right to receive a written statement was, previously, a very important indication of a person’s employment status i.e. whether they had a contract of service in terms of Section 230 of the Employment Rights Act 1996 – as opposed to a contract for services.

In the leading House of Lords’ decision – Carmichael v National Power plc [2000] IRLR 43, two women who were engaged on casual as required contracts as tour guides at the (now demolished) Blyth Power Plant in Northumberland were not entitled to receive written statements of employment because they were engaged under a contract for services. There was no mutuality of obligation between the parties in that National Power was not obliged to offer the women work and the two women, if offered work, were not obliged to accept it. With today’s changes to the Employment Rights Act 1996, the two women in Carmichael would now be entitled to receive a written statement.

A link to the UK Government’s website which provides (free) access to a blank template for employers to generate their own written statement can be found below:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/183185/13-768-written-statement-of-employment-particulars.pdf

Related Blog Article:

https://seancrossansscotslaw.com/2019/02/11/employment-contracts-read-them-or-weep/

Copyright Seán J Crossan, 6 April 2020

California dreamin’?

Photo by Ross Sneddon on Unsplash

I’m currently in the fourth week of Semester 2 and I’m teaching Employment Law to a group of second year students. I usually begin this course by discussing the importance of an individual’s employment status.

In today’s world of work, the great divide very much rests upon whether a person has a contract of service OR a contract for services.

An employee is said to have a contract of service as defined by Section 230(1) of the Employment Rights Act 1996. Having this status potentially allows someone to acquire employment protection such as the right not to be unfairly dismissed; the right to a redundancy payment; the right to be the beneficiary of family friendly and flexible working practices.

After the first few lectures have been completed on employment status, I usually ask the students if they think this is an important issue?

Hopefully, if I have been doing my job properly and they have been listening to me, the penny will have dropped: it is more often better to be an employee than someone who works under a contract for services (e.g. zero hours workers, casual and atypical workers, freelancers and the genuinely self-employed).

There are notable exceptions (aren’t there always?): high earning British television celebrities (e.g. Lorraine Kelly) or a number of BBC news journalists have preferred to be treated as freelancers or self-employed persons. Why? They can then minimise their exposure to income tax liability in a way (often via the medium of personal service companies) that would not be possible because if they were employees they would almost certainly be taxed at source on a PAYE (pay as you earn) basis.

We have seen an explosion in the type of work that is often characterised or labelled as the ‘gig economy’. This work is often characterised by a distinct lack of employment rights; irregular working patterns; chronic insecurity; lack of long term career progression; and low pay. It is often impossible for such individuals to complete the necessary periods continuous service to acquire employment rights.

Companies such as Deliveroo, Lyft and Uber have become synonymous with the ‘gig economy’, as have whole sectors of the employment market e.g. catering, cleaning and hospitality services.

Admittedly, the UK Government of Prime Minister Theresa May (2016-19) did commission Matthew Taylor to review employment status. The main conclusion reached by the Taylor Review was that a minimum level of employment protection should be extended to workers – after all these individuals pay their National Insurance contributions too.

Links to the Taylor Report and the UK Government’s response can be found below:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/627671/good-work-taylor-review-modern-working-practices-rg.pdf

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/679767/180206_BEIS_Good_Work_Report__Accessible_A4_.pdf

In Scotland, the devolved Government has also established a Fair Work Convention with the aim of promoting better and progressive employment practices by 2025 (see the link below):

https://www.fairworkconvention.scot

Admittedly, an employee does not gain these rights from day 1 of employment. They become entitled to claim certain rights as they build up their continuous service with the employer. So, for example, an employee (generally speaking) has the right not to be unfairly dismissed in terms of the Employment Rights Act 1996 if they have completed 2 years of continuous service with the employer.

Meanwhile, on the other side of the world …

… or California dreamin’

It’s not just in the UK that debates about employment status are currently playing out. At the tail end of 2019, it was with particular interest that I read about a story from the United States which highlighted many of the issues which I have just been discussing in this Blog.

A study, carried out in 2015/16 by economists (Professors Lawrence Katz and Alan Krueger at Harvard and Princeton Universities respectively) calculated that “12.5 million people were considered independent contractors, or 8.4% of the U.S. workforce.”

https://scholar.harvard.edu/files/lkatz/files/katz_krueger_cws_v3.pdf

Interestingly, in 2019, Professors Katz and Krueger appeared to disown or play down certain of their findings – especially in relation to the number of American gig economy jobs:

https://edition.cnn.com/2019/01/07/economy/gig-economy-katz-krueger/index.html

Assembly Bill 5

The US State of California has just enacted a law, Assembly Bill 5 2019 or AB5 (known more popularly as the gig economy law) giving those individuals working in the gig economy more employment rights. The law came into force on 1 January 2020.

A link to AB5 as enacted by the California State legislature can be found below:

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB5

In theory, AB5 makes it much more difficult for employers to classify individuals as independent contractors for services meaning that many more people will be treated as employees with the right to claim the minimum wage and the right to receive sick pay.

The Supreme Court of California laid down very strict criteria for determining whether an individual was an employee or an independent contractor in what is being referred to as the ‘landmark’ decision of Dynamex Operations West, Inc v the Superior Court of Los Angeles County 30 April 2018 Opinion S222732.

The case establishes the ‘ABC Test’ which operates on the presumption that individuals hired by an organisation or business are employees unless the hirer can show otherwise. In this case, the Supreme Court moved away from the ‘seminal’ Borello Test which had been the standard way of determining a person’s employment status since the 1980s. Critically, AB5 reflects the Dynamex criteria.

Essentially, the hirer must satisfy all three parts of the ABC Test in order to prove that an individual is a genuine independent contractor.

The criteria in ABC Test (as contained in AB5) can be set out as follows:

(A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.

(B) The person performs work that is outside the usual course of the hiring entity’s business.

(C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

The Dynamex decision is regarded as a landmark judgement because it overturns the Borello Test which had been the leading precedent for determining employment status in California since the late 1980s (see S. G. Borello & Sons, Inc. v Department of Industrial Relations (1989) 48 Cal.3d 341).

In Dynamex, the Californian Supreme Court made the following statement:

Although in some circumstances classification as an independent contractor may be advantageous to workers as well as to businesses, the risk that workers who should be treated as employees may be improperly misclassified as independent contractors is significant in light of the potentially substantial economic incentives that a business may have in mischaracterizing some workers as independent contractors. Such incentives include the unfair competitive
advantage the business may obtain over competitors that properly classify similar workers as employees and that thereby assume the fiscal and other responsibilities and burdens that an employer owes to its employees.

The Court noted, moreover, that:

In recent years, the relevant regulatory agencies of both the federal and state governments have declared that the misclassification of workers as independent contractors rather than employees
is a very serious problem, depriving federal and state governments of billions of dollars in tax revenue and millions of workers of the labor law protections to which they are entitled
.”

A link to the Dynamex judgement can be found below:

https://scocal.stanford.edu/opinion/dynamex-operations-west-inc-v-superior-court-34584

Legislators in other US States (New Jersey and New York particularly) have expressed a desire to follow the Californian example and Democratic US presidential candidates, Bernie Sanders and Elizabeth Warren are strongly in favour of this type of law.

As you would expect in such a litigious society as the United States, AB5 has already been the subject of a legal challenge (which was unsuccessful). Predictably, Uber and another company, Postmates, were at the forefront of this action.

This legal challenge was hardly surprising, given that The Los Angeles Times reported in August 2019 that Uber and Lyft intended to establish a campaigning fund worth $60 million to fight AB5.

A link to the story can be found below:

https://www.latimes.com/business/technology/story/2019-08-29/ab5-uber-lyft-newsom-lorena-gonzalez-ballot-tony-west

Conclusion

So, even in the land of free enterprise, it would seem that not everyone wants to be their own boss and many people would, in fact, be more than happy to welcome the recognition of their status as employees.

That said, AB5 has, surprisingly, not met with the approval of every worker or potential employee. The California performing arts community has experienced problems with the new law, mainly because of its use of the term ‘fine artist’ which was not defined. Fine artists are exempt from the provisions of AB5, but who exactly is a fine artist? No one seems to be sure and The Los Angeles Times reported that one opera company had cancelled performances because they were unsure whether performers were to be classified as employees (with the additional costs that this would entail) or whether they were genuinely independent contractors.

Lorena Gonzalez, the Californian Assemblywoman who drafted AB5 said that a definition of the term was deliberately omitted from the law and that it the responsibility of the State’s Employment Development Department to clarify this issue.

Readers will find links below to media articles about AB5:

https://apple.news/A_pjrttPvTDSMSpV-VMet8w

https://www.bbc.co.uk/news/business-49659775

https://www.latimes.com/entertainment-arts/story/2020-01-29/ab5-independent-contractor-california-2020-arts

Related Blog Articles:

https://seancrossansscotslaw.com/2019/04/19/the-gig-economy/

https://seancrossansscotslaw.com/2019/07/22/good-work/

https://seancrossansscotslaw.com/2019/03/22/hello-im-lorraine-and-im-definitely-self-employed/

https://seancrossansscotslaw.com/2019/12/21/employee-or-not/

https://seancrossansscotslaw.com/2019/01/17/employment-status/

https://seancrossansscotslaw.com/2019/05/08/call-me-an-uber/

https://seancrossansscotslaw.com/2019/03/25/strippers-are-workers-too-discuss/

https://seancrossansscotslaw.com/2019/02/14/horses-for-courses-the-equine-flu-affair/

https://seancrossansscotslaw.com/2019/04/30/paternity-leave/

https://seancrossansscotslaw.com/2019/02/25/the-work-life-balance-or-utopia-reimagined/

Copyright Seán J Crossan, 13 February 2020

Pregnancy discrimination (or New Year, same old story … Part 2)

Photo by Sincerely Media on Unsplash

We’re barely into 2020 and we seem to be on something of a roll with stories about sex discrimination. Yesterday, I discussed the issue of equal pay.

Only this morning I was flicking through the newspaper and came across another story, this time, concerning pregnancy discrimination.

Helen Larkin was dismissed from her post with the Liz Earle Beauty Company on the grounds of her pregnancy. Her employer was restructuring the company and refused to consider Ms Larkin for two alternative posts within the organisation. This refusal to consider suitable, alternative employment appeared to be motivated by the fact that Ms Larkin would shortly be going off on her period of maternity leave.

This treatment amounted to unlawful direct discrimination in terms of Sections 13 and 18 of the Equality Act 2010. Her dismissal would also be automatically unfair in terms of the Employment Rights Act 1996.

Consequently, Ms Larkin was awarded over £17,000 in compensation. This sum, of course, reflects an element to injury to feelings (the so called Vento Bands or Guidelines). In fact, Ms Larkin was awarded £10,000 in compensation to reflect injury to feelings.

A link to the judgement of the Employment Tribunal can be found below:

https://assets.publishing.service.gov.uk/media/5e2f0300e5274a6c42dcd132/Mrs_H_Larkin_v_Liz_Earle_Beauty_Co._Ltd_-_1403400.2018.pdf

A study carried out jointly by the UK Government Department (Business, Innovation and Skills) and the Equality and Human Rights Commission previously discovered that some 54,000 women per year in this country were forced out of their employment for reasons related to pregnancy and/or maternity.

A link to a summary of the research on the website of the Equality and Human Rights Commission can be found below:

https://www.equalityhumanrights.com/en/managing-pregnancy-and-maternity-workplace/pregnancy-and-maternity-discrimination-research-findings

Again, as I noted in yesterday’s Blog (New Year, same old story …), we have had anti-discrimination laws in the UK for nearly 45 years and yet we still regularly hear stories about pregnancy and maternity discrimination.

Readers might be interested to learn about the work of a pressure group (Pregnant then screwed) which campaigns to end the ‘motherhood penalty’:

https://pregnantthenscrewed.com

A link to Helen Larkin’s story as reported in The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.110120/data/9278901/index.html

Related Blog articles:

https://seancrossansscotslaw.com/2020/01/10/new-year-same-old-story/

https://seancrossansscotslaw.com/2019/02/14/hurt-feelings/

https://seancrossansscotslaw.com/2019/02/22/sticks-and-stones-may-break-my-bones-but-names-will-never-hurt-me/

https://seancrossansscotslaw.com/2019/07/08/just-blew-it-again/

https://seancrossansscotslaw.com/2019/08/22/the-trouble-with-pregnancy/

https://seancrossansscotslaw.com/2019/09/10/barbaric/

Copyright Seán J Crossan, 11 January 2020

I’m a climate activist, don’t fire me!

Photo by Stock Photography on Unsplash

Today seems to be something of a red letter day for the Blog with regard to the issue of protected philosophical beliefs in terms of the Equality Act 2010.

We have already heard the news that Jordi Casamitjana has won the part of his Employment Tribunal claim that his ethical veganism is a philosophical belief in terms of Sections 4 and 10 of the 2010 Act (see Casamitjana v League Against Cruel Sports [2020]).

It was some interest that another news item popped up today concerning allegations that Amazon stands accused of threatening to dismiss those of its employees who become involved in climate protests. I would hazard a guess that Amazon is making a statement of intent that it may dismiss employees who perhaps break the law when they are involved in climate protests such as those organised by Extinction Rebellion and other similarly minded groups.

Criminal acts by employees committed outside the workplace could be regarded as gross misconduct in terms of Section 98 of the Employment Rights Act 1996. In other words, such behaviour by employees could result in the employer suffering reputational damage and, consequently, any dismissal for misconduct could be potentially fair. That said, employers should always carry out the proper disciplinary procedures when contemplating dismissal as the ultimate sanction for employee misbehaviour.

The real gripe – according to Amazon Employees for Climate Justice – is that the tech company allegedly objects to employees speaking critically about its failure to be more environmentally responsible.

Yet, there are potential dangers here for Amazon in the UK. In Grainger plc v Nicholson (2010) IRLR 4, the Employment Appeal Tribunal established that an employee’s belief in climate change could constitute discrimination on the grounds of a philosophical belief.

So, we could have situation where Amazon employees who are taking part in quite peaceful and lawful climate change protests end up being dismissed. This would open up the possibility that employees of Amazon UK might have the right to bring claims for direct discrimination (Section 13: Equality Act 2010) in respect of their philosophical beliefs (Sections 4 and 10 of the Act).

In the USA, there could be even more serious legal implications – infringing the right to free speech which is protected under the Constitution.

Perhaps Amazon needs to go back to the drawing board …

A link to an article on the BBC News App can be found below:

Amazon ‘threatens to fire’ climate change activists

The company said employees “may receive a notification” from HR if rules were “not being followed”.

Related Blog article:

https://seancrossansscotslaw.com/2019/06/05/im-a-political-activist-dont-sack-me/

Copyright Seán J Crossan, 3 January 2020

I want to believe …

Photo by Vegan Liftz on Unsplash

… well now Jordi Casamitjana can believe … officially. He has just won part of his Employment Tribunal case (Casamitjana v League Against Cruel Sports) which confirms that ethical veganism is a protected philosophical belief in terms of Sections 4 and 10 of the Equality Act 2010.

Please note, however, that the Employment Tribunal is yet to determine whether Mr Casamitjana was dismissed because of these protected beliefs – that is another matter.

A link can be found below to the Preliminary Judgement of the Employment Tribunal on the question of whether ethical veganism is a philosophical belief in terms of the Equality Act 2010:

https://assets.publishing.service.gov.uk/media/5e3419ece5274a08dc828fdd/Mr_J_Casamitjana_Costa_v_The_League_Against_Cruel_Sports_-_3331129-18_-_Open_Preliminary_Hearing_Judgment___Reasons.pdf

Please also find a link below to the BBC News App about Tribunal’s decision:

Ethical veganism is ‘philosophical belief’

Ethical veganism is a “philosophical belief” and therefore protected by law, employment tribunal rules.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/01/02/going-mainstream/

https://seancrossansscotslaw.com/2019/05/12/veganism-discrimination/

https://seancrossansscotslaw.com/2019/04/08/the-trouble-with-veganism/

https://seancrossansscotslaw.com/2019/03/26/veganism-is-human-cruelty/

https://seancrossansscotslaw.com/2019/04/21/the-vegan-athlete/

https://seancrossansscotslaw.com/2019/04/01/the-shameful-secret-the-vegan-butcher/

https://seancrossansscotslaw.com/2019/02/19/vegans-should-be-punched-in-the-face/

https://seancrossansscotslaw.com/2019/01/22/philosophical-beliefs/

Copyright Seán J Crossan, 3 January and 14 February 2020

Paternity leave

Photo by Kelly Sikkema on Unsplash

The basic (statutory) entitlement to paternity leave for employees was introduced by the then Labour Government of Tony Blair in 2003.

A recent news item on the BBC highlighted the fact that Aviva, one of the UK’s leading financial institutions, has introduced improved, family friendly policies for new fathers.

The company is permitting new fathers to take up to 6 months of paid paternity leave.

A link to the story can be found below:

Paternity leave: ‘All of my dad friends were incredibly jealous’

This is an incredibly generous arrangement for male employees, but it is not typical. In this blog, I intend to examine the basic statutory provisions which govern this area of employment law.

I should also point out that, in all probability, Aviva will be paying male employees the statutory rate of paternity pay (more about this later in the blog).

Admittedly, the Labour Party seems to be prepared to consider the introduction of improved, family friendly policies. In a previous blog (Out of office: the work/life balance published on 25 February 2019), I mentioned that the extension of rights to flexible working arrangements was being considered by Labour. Under these proposed arrangements, employees would be entitled to access these types of arrangements from day 1 of their employment (not the current 26 weeks’ continuous service requirement).

The impact of family friendly policies in the UK

The House of Commons’ Women and Equalities Committee published a Report entitled Fathers and the workplace (on 7 March 2018) which stated in its opening paragraph that:

The Government must reform workplace policies to support fathers to better balance their parental responsibilities and work and to ensure they meet the needs of the twenty first century family. Fathers in particular want to be supported at work to take a more equal share of childcare when children are young.”

The Report goes on to comment that:

… we have heard evidence from employer organisations, unions, researchers, think-tanks and experts, but most importantly from fathers and mothers themselves, that the current policies supporting fathers in the workplace do not deliver what they promise, despite good intentions. This is particularly the case for less well-off fathers.

In particular, the Committee noted that entitlement to flexible working arrangements has not led to cultural change in the workplace.

In 2015, the UK Coalition Government (2010-15) introduced Shared Parental Leave to try and encourage new fathers to share parental responsibilities with the mothers. This policy has not been a success if you look at figures reported by the Financial Times (2017) and the BBC (2018):

https://www.ft.com/content/2c4e539c-9a0d-11e7-a652-cde3f882dd7b

https://www.bbc.co.uk/news/business-43026312

The figures seem to suggest that between 1-2% of eligible parents are making use of shared parental leave. This is an abject failure given that the UK Government gave evidence to the Women and Equalities Committee stating that it would like to achieve a figure of 25% of eligible men and women taking up shared parental leave. So, a lot of work still to be done here.

The sheer complexity of the legislation covering family friendly policies can also be an added difficulty for employers and employees alike.

A link to the Women and Equalities Committee Report and a link to the UK Government’s response to it can be found below:

https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/358/358.pdf

https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/1076/107602.htm

Statutory Paternity Leave and Pay

In the UK, new fathers are entitled to take 1 or 2 weeks of statutory paternity leave following the birth of their child. The employee can choose to take either 1 or 2 weeks’ leave. You will not get additional leave if the mother is having twins or triplets (and we’ll leave it at that!).

Generally, new fathers must take paternity leave all at once – although some employers may be flexible about this.

An employee should give his employer the correct notice, but this is not about pinpointing a precise date (understandably). The leave period could be changed, but an employer would expect to receive 28 days’ notice of this intention. Paternity leave cannot be taken before the birth and any entitlement must be used up within 56 days of the child being born (or adopted).

Employees can either inform their employers in writing; complete the official SC3 form; or complete the employer’s own form.

A link to the SC3 form can be found below:

https://public-online.hmrc.gov.uk/lc/content/xfaforms/profiles/forms.html?contentRoot=repository:///Applications/PersonalTax_iForms/1.0/SC3&template=SC3.xdp

Eligibility

This important employment right is subject to the following conditions:

  • It applies to employees only
  • Employees must have 26 weeks’ continuous service with the employer up to and including any day in the qualifying week
  • Employees must be the biological parent; adopter; or intended parent (i.e. surrogacy arrangements)

The qualifying week is 15 weeks before the child is born.

During paternity leave, the continuity of employment of new fathers is maintained and this means that they will still accrue holidays/holiday pay; have an entitlement to raise any pay rises; and they have the right to return to work.

During the actual pregnancy or adoption process, expectant fathers are entitled to accompany the mother of the child to two ante natal appointments or two adoption appointments after matching with a child. The amount of time that employees can take off to attend these types of appointment is 6.5 hours, although employers can increase this.

New fathers taking leave will be entitled to receive statutory paternity pay – which is not exactly generous (from April 2019: £148.68 per week or 90% of the employee’s average weekly earnings – whichever is the lower figure).

Again, some employers may may much more generous and operate a contractual paternity leave and pay scheme which will allow male employees to be paid their full salary while taking time off to be with their newly born or newly adopted children.

In order to qualify for paternity pay, employees must currently be earning £118 (before tax) from 6 April 2018. This is known as the Lower Earnings Limit.

Employees will receive paternity pay via the usual arrangements operated by the employer and tax, national insurance and other deductions (e.g. pension contributions) will be taken. Paternity pay should actually be paid when employees are taking their leave entitlement. It is possible to change the dates for payment of paternity pay, but the employer has a right to insist on 28 days’ notice.

Conclusion

Paternity leave and pay (in common with many other so called family friendly policies in the workplace) tends not to be particularly generous. The cultural change whereby men and women would share parental responsibilities (especially in the child’s first year of life) seems to be a pious hope. Much more is going to have to be done by the UK Government to encourage this sort of change. Perhaps getting rid of some of complexity which surrounds the law in this area could be a useful start.

Arrangements operated by employers, such as Aviva, tend to be the exception rather than the rule.

The Nordic countries (Denmark, Finland, Iceland, Norway and Sweden) tend to be the benchmark used to make criticisms of how far behind the UK is when it comes to implementing family friendly policies. Sweden, in particular, is often cited as one of the most progressive countries in the developed world in this respect:

https://sweden.se/society/10-things-that-make-sweden-family-friendly/

Related Blog Article:
Copyright Seán J Crossan, 30 April 2019

More hell on the high street (or redundancy again)

Photo by Becca McHaffie on Unsplash

The difficult trading conditions on the UK high street don’t seem to be easing with news that Debenhams, one of the country’s biggest retailers, will close 50 of its stores. This will affect about 1,200 employees of Debenhams, many of whom will be facing up to the threat of redundancy.

Debenhams have just announced the names of the first 22 stores which will close in 2020.

Debenhams names 22 stores to close

The struggling department store chain plans to close the shops next year, affecting 1,200 staff.

Redundancy

Redundancy can be potentially fair reason for dismissal… if handled correctly by employers.

Only employees can be made redundant. 

Remember: Section 230 of the Employment Rights 1996 defines who is an “employee”.

The definition of redundancy can be found in Section 139(1) of the Employment Rights Act 1996:

(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to-

(a) the fact that his employer has ceased or intends to cease-

(i) to carry on the business for the purposes of which the employee was employed by him, or

(ii) to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business-

(i) for employees to carry out work of a particular kind, or

(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,

The relevant legal provisions governing redundancy are quite extensive and can be found in:

● Trade Union and Labour Relations (Consolidation) Act 1992 

● Employment Rights Act 1996

● Information and Consultation of Employees Regulations 2004 

● Transfer of Undertakings (Protection of Employment) Regulations 2006

● Collective Redundancies and Transfer of  Undertakings (Protection of Employment) (Amendment) Regulations 2014.

The really critical provisions of UK employment law which govern redundancy handling are to be found in the following:

● Sections 188-198 of the Trade Union and Labour Relations (Consolidation) Act 1992 

(Section 188 is further supplemented by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1999).

Handling redundancies

Employees should be selected for redundancy in a fair way.

The employees who are at risk for potential redundancy will be part of a group of individuals known as the redundancy pool.

Employers can manage situation in a number of ways. 

How?

● LIFO

● Volunteers 

● Disciplinary records

● Staff appraisal – skills, experience etc (redundancy matrices or re-applying for your job).

What is LIFO? 

Last in, first out – was the most commonly used method, but it could fall foul be regarded as indirect discrimination e.g. too many young people are made redundant. So there are limitations to this approach.

Redundancy selection criteria must be objective. 

Many employers will have contractual redundancy policies. Must stick with this: see John Anderson v Pringle of Scotland [1998] IRLR 64.

Appeals should be permitted.

Individuals will still be an employee until effective date of redundancy.

Avoiding redundancies

Redundancy could be avoided by:

● Short-time working

● Lay-offs

The employer needs to consult with employees or their representatives.

Both sides may not reach agreement, but consultation has occurred. 

 It has to be a meaningful exercise – not a paper one.  

Additional rights

Employees have additional rights in redundancy situations:

● Consultation with employer

● Notice period

● Suitable, alternative employment 

● Time off to find new employment

Selection for redundancy

Selection for redundancy is automatically unfair in relation to:

● Protected characteristics e.g. age, disability, gender, maternity and pregnancy etc

● Trade Union participation or acting as employee representatives

● Jury service

● Whistle-blowing & health and safety cases

● Asserting statutory rights

● Occupational pension trustees

Statutory redundancy pay

Statutory redundancy pay is most common payment. Only those employees who have 2 years or more continuous service are entitled to claim statutory redundancy pay.

It is worked out according to the following formula:

● half a week’s pay for each full year employees were under 22

● 1 week’s pay for each full year employees were 22 or older, but under 41

● 1 and half week’s pay for each full year employees were 41 or older

Length of service which can be used to calculate the amount of redundancy pay is capped at 20 years and the amount of weekly pay is capped at £525 (the maximum statutory amount claimable is £15,750) from 6 April 2019.

Employers can be more generous with redundancy pay or they can include employees with less than 2 years’ continuous service.

No tax is payable on redundancy pay less than £30,000.

Employees can calculate their entitlement to statutory redundancy pay by clicking on the link below:

https://www.gov.uk/calculate-employee-redundancy-pay

Notice of redundancy

Proper notice of redundancy must be given. Section 86 of the Employment Rights Act 1996 contains the relevant notice periods for termination of the employment contract.

The maximum period of notice for those employees with 12 years or more continuous service is 12 weeks.

Sometimes contractual periods of notice can be longer, but not shorter than the those laid down by the Employment Rights Act 1996.

That said, notice can be shorter if the employment contract permits employer to make a payment in lieu of notice. 

Employees will receive full entitlement to redundancy pay, notice pay, holiday pay & other entitlements.

Collective redundancies?

This situation arise where more than 20 employees are going to be  made redundant in a 90 day period. Fixed term contract employees do not need to be included in collective consultation, except if contract ending early because of redundancy.

The Debenhams’ situation is likely to be classified as a case of collective redundancy.

There must be consultation with with Trade Union or employee representatives.

Consultations must cover:

● ways to avoid redundancies

● the reasons for redundancies

● how to keep the number of dismissals to a minimum

● how to limit the effects for employees involved, e.g. by offering retraining

Length of consultation period?

No time limit for how long this period should be, but the minimum is:

● 20 to 99 redundancies – the consultation must start at least 30 days before any dismissals take effect

● 100 + redundancies – the consultation must start at least 45 days before any dismissals take effect

These minimum periods apply if employers are contemplating making collective redundancies within a 90 day period. 

The UK Coalition Government (2010-15) substantially reduced redundancy consultation periods.

Failure to consult employees?

Dismissals will almost certainly be unfair. 

In a collective redundancy situation, employers should notify the Redundancy Payments Service (RPS) by filling out form HR1. It is a (strict liability) criminal offence not to complete the HR1.

A link to a template HR1 form can be found below:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/782487/NEW_HR1.pdf

Failure to pay redundancy payments or payment of the wrong amount?

Affected employees have 6 months (minus 1 day) to lodge an Employment Tribunal claim.

Insolvent employers?

The State will ultimately pay out from the National Insurance Fund (employee’s should complete and submit an RP1 Form).

Employees can find out if their employer is insolvent by going to the following link:

https://www.gov.uk/get-information-about-a-company

A short film from ACAS about the core employments rights in relation to redundancy can be found below:

Copyright Seán J Crossan, 28 April 2019