Take it or leave it …

Photo by Liviu Florescu on Unsplash

Take it or leave what?

This is the stark choice faced by thousands of Asda employees (US parent company Walmart) in the UK who have been told by their employer that they must accept new contracts of employment.

The GMB Trade Union representing many of the affected employees has publicly stated its opposition to the new contracts. The Union’s argument amounts to the claim that the new terms and conditions will leave employees in a worse position.

Asda has stated that if employees don’t agree to the new contracts of employment, they will no longer have a job with the company. Effectively, the employees will be terminating their employment with the company.

What’s the legal position?

Well, Asda is stating that it wishes to terminate the existing contractual agreement with the affected employees and replace it with a new contract. In this type of situation, Section 86 of the Employment Rights Act 1996 is particularly relevant.

The Act lays down statutory minimum periods of notice that the employer must give to the employees in question. These statutory minimum periods of notice apply to all those employees who have been continuously employed for four weeks or more.

Given the amount of previous Blogs of mine where I have covered the issue of an individual’s employment status, I really shouldn’t have to remind readers that the statutory notice periods apply to employees only i.e. those individuals who work under a contract of service (as per Section 230 of the Employment Rights Act 1996).

The statutory periods are detailed below:

  • One week’s notice is required to be given to those individuals who have been employed for more than four weeks but under two years
  • If the employee has between two and 12 years’ continuous service, s/he is entitled to a week’s notice for every year of service
  • If an employee has more than 12 years’ continuous employment, the maximum notice period is 12 weeks

It is important to note that these are statutory minimum periods of notice and that contracts of employment may actually lay down a requirement for longer periods of notice.

Alternatively, some employers may choose to insert a term in the contract where they can pay off the employee immediately by giving them their full entitlement to notice pay. There is no need for the employee to work whatever notice period they are entitled to receive. This type of contractual term is known as payment in lieu of notice.

Back to Asda: the affected employees are being given their statutory notice period whether that’s 1 week, 2 weeks or up to the maximum notice period of 12 weeks (depending on the individual’s length of service) as per Section 86 of the Employment Rights Act 1996.

What if some people still refuse to sign the new contracts after their statutory period of notice has expired?

There is always the possibility that certain employees (with the requisite length of service or meeting other relevant criteria e.g. protected characteristic discrimination) may be able to raise a claim for unfair dismissal in terms of the Employment Rights Act 1996.

Asda, on the other hand, may be able to justify the dismissals as potentially fair under Section 98(2) of the Employment Rights Act 1996 i.e. for some other substantial reason (the necessity for a wide-scale reorganisation in a tough retail environment).

No doubt lawyers for both Asda and the GMB are already staking out their respective legal positions for a possible battle before the Employment Tribunal.

A link to the story on the Sky News website can be found below:

Asda refuses to remove sack threat for thousands of staff over compulsory contracts http://news.sky.com/story/asda-refuses-to-remove-sack-threat-for-thousands-of-staff-over-compulsory-contracts-11845215

Copyright Seán J Crossan, 26 October 2019

A hard day’s night …

Photo by Xi Wang on Unsplash

What has European Union law done for workers in the UK?

This was a question that I found myself asking when reading about very poor working conditions and lengthy hours experienced by many Chinese teenagers working in factories in order to manufacture a product purchased and used by many Western consumers.

The answer to my question is quite a lot actually when you consider the impact of the EU Working Time Directive which was transposed into UK employment law as a result of the Working Time Regulations 1998.

The Working Time Regulations 1998 guarantees most workers (there are exceptions – aren’t there always?) the right not to be forced to work more than 48 hours per week.

It’s important to note that the category of worker has a broader meaning and is not merely confined to those people who are employees (i.e. have a contract of service as per Section 230 of the Employment Rights Act 1996). Many individuals who work under a contract for services will benefit from the protection of the Directive and the Regulations.

The Regulations also compel the employer to give workers regular breaks and they also regulate the amount of hours that the worker can be forced to work in any one day.

There is special protection for younger workers regarding breaks and the maximum daily hours that they are permitted to work.

The basic rights and protections that the Regulations provide are:

  • a limit of an average of 48 hours a week which a worker can be required to work (though workers can choose to work more if they wish by signing an opt-out) (Regulation 4)
  • a limit of an average of 8 hours work in each 24 hour period which night workers can be required to work (Regulation 6)
  • a right for night workers to receive free health assessments (Regulation 7)
  • a right to 11 hours rest a day (Regulation 10)
  • a right to a day off each week (Regulation 11)
  • a right to an in-work rest break if the working day is longer than 6 hours (Regulation 12)
  • a right to 5.6 weeks (or 28 days) paid leave per year

Admittedly, many UK and EU employers will have better working conditions than the list above, but in theory the Working Time Directive provides a basic safety net or floor of rights for workers.

It is normal practice, for many employers to have a collective or work-place agreement which governs the length of in-work rest breaks if the working day is longer than six hours.

If there is no such agreement, adult workers are entitled to a 20 minute uninterrupted break which should be spent away from the work-station and such a break should not be scheduled at the end of a shift.

Younger workers are entitled to a longer, uninterrupted break of 30 minutes if their working day is longer than four and a half hours and, similarly, this break should be spent away from a person’s workstation.

What a contrast then from conditions in Chinese factories. Although China may be on course to become the World’s largest economy, the human cost of achieving this goal is very high.

No one, of course, is saying that the situation in the UK and the EU is approaching utopia for workers. The Regulations (and ultimately the Directive) can and will be ignored by rogue employers. Furthermore, in work-places where trade unions are weak or non-existent, workers may not be aware of their rights or willing to enforce them.

Despite all this, at least UK and EU workers have some sort of legal means for challenging poor working conditions and the culture of lengthy hours.

One of the big fears about the consequences of Brexit has, of course, been the possible erosion of employment protection standards by a future UK Government and Parliament that might be committed to a more free market economic philosophy of labour relations.

A link to the story about working conditions in China can be found below:

Amazon Echo devices made by Chinese teens ‘working through night’ – reports

Copyright Seán J Crossan, 23 October 2019

Facebook folly

Photo by Kon Karampelas on Unsplash

Regular readers of this Blog will be aware that a number of my previously published articles have commented on individuals being dismissed from employment because they posted offensive or ill advised comments on social media platforms.

Such dismissals can be potentially fair grounds for termination of the contract of employment because the employer will able to claim that the employee’s behaviour (or misconduct) has caused reputational damage.

Section 98 of the Employment Rights Act 1996 makes it very clear that that acts of misconduct committed by the employee can constitute fair grounds for dismissal.

An interesting case which was reported today is McAlpine v Sodexo Justice Services (Sodexo Ltd) ET Case 4121933/18 where McAlpine, a prison officer employed at Her Majesty’s Prison Addiewell, lost his claim for unfair dismissal. On the facts, the Edinburgh Employment Tribunal held that Sodexo, the employer, was justified in dismissing McAlpine for posting offensive comments about Muslims (amongst other things) on Facebook while he was off duty.

It was not a competent defence put forward by McAlpine that some of the remarks which he posted were not his own, but rather those of the far right activist and campaigner, Tommy Robinson (real name Stephen Yaxley-Lennon).

Sodexo had a clear social media policy for its employees and the relevant sections can be found below:

6.1 You must avoid making any social media communications that could damage our business interests or reputation, even indirectly…

6.2 You must not use social media to defame or disparage us, our employees or any third party; to harass, bully or unlawfully discriminate against employees or third parties; to make false or misleading statements; or to impersonate colleagues or third parties”.

In a section entitled Miscellaneous Rules, individuals were informed about the following conditions governing their employment with Sodexo:

Employees must be honest at all times, in connect with their employment and must not breach the trust and confidence that is provided to them by the Company or Client. … Employees must not engage in, condone or encourage any behavior that could be regarded as harassment, bullying, victimisation or discrimination”.

Significantly, Sodexo had also stated that a “… breach of any of these rules would be considered gross misconduct”.

The Employment Tribunal was satisfied that in deciding to dismiss McAlpine for misconduct, the employer had followed its disciplinary procedure correctly and the ultimate sanction of termination of his employment was within the band of reasonable responses.

It is worth noting that the employer’s disciplinary procedures were fully in accordance with the current ACAS Code of Practice.

In these circumstances, it can hardly be surprising that McAlpine lost his case.

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

https://assets.publishing.service.gov.uk/media/5d1dcab8ed915d0bc72d8700/McAlpine_v_Sodexo_-_4121933-2018_-_Judgment.pdf

Copyright Seán J Crossan, 3 September 2019

Good work?

Photo by Maarten van den Heuvel on Unsplash

One of the consistent themes of my blog has concerned an individual’s employment status in the work-place – or the very real difficulties associated with the lack of such status.

Section 230(1) of the Employment Rights Act 1996 defines who is an “employee” in the following terms:

“… an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.”

As I have stated on more than one occasion, those who have a contract of service rather than a contract for services tend to be in a much stronger position legally speaking when it comes to a range of employment rights such as:

  • Paternity and maternity pay/leave
  • Statutory adoption pay/leave
  • Consultation rights in redundancy and TUPE situations
  • Entitlement to redundancy payments
  • Entitlement to sick pay
  • Minimum notice periods
  • Protection against unfair dismissal

The above are just some of the rights that people with employment status potentially can acquire depending on their length (or continuity) of service with their employer.

Those individuals with more insecure working patterns (e.g zero hours and/or casual workers) will almost never be in a situation to acquire such rights because it is almost always impossible for them to build up the necessary period of continuous service with the organisations to which they provide services. Typically, many of these workers are part of what has become known as the “gig economy” where the feature of employment contracts known as mutuality of obligation is absent.

Admittedly, the UK Government has attempted to begin to address the disadvantages facing “gig economy” workers by setting up the Taylor Review (which published its findings in July 2017). The final report made 53 recommendations concerning modern, employment practices:

https://www.gov.uk/government/publications/good-work-the-taylor-review-of-modern-working-practices

The UK Government’s official response to the Taylor Review was entitled “Good Work” and a link to this document can be found below:

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

The desire to extend workers’ rights seems to be something of a trend as, in April 2019, the European Union also ratified a new Directive with the working title Transparent and predictable working conditions in the European Union. This Directive (for the remaining EU 27 member states) will certainly give casual workers greater legal rights, but given the current uncertainty over the UK’s Brexit position, it remains to be seen if this measure will ever be implemented in this country (for more information, see my blog entitled “The gig economy” which was published on 19 April 2019).

One of the most significant new rights that the UK Government is proposing to extend to non-employees is the right to sick pay from day 1 of their service. It is calculated that this reform (if implemented) will benefit some 2 million workers.

A link to how the story was reported by The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.160719/data/9005291/index.html

Although employment law is a matter reserved to the Westminster Parliament, the Scottish Government has established its own Fair Work Convention with the express aim:

“… that, by 2025, people in Scotland will have a world-leading working life where fair work drives success, wellbeing and prosperity for individuals, businesses, organisations and society.”

A link to the Convention’s website can be found below:

https://www.fairworkconvention.scot

Copyright Seán J Crossan, 22 July 2019

Bad medicine

Photo by Kendal James on Unsplash

A story which caught my eye over the last few days comes from the fair Canadian City of Toronto and involves misconduct dismissals. For a change, the dismissals do not involve social media misuse, but rather good old fashioned fraud.

150 members of staff working at a Toronto hospital were sacked for involvement in a sophisticated prescription fraud which was reportedly in the region of £3 million over an 8 year period. Defrauding your employer is, of course, an extremely serious breach of trust which materially undermines the contract of employment.

Interestingly, at this point, the Police in Toronto have not charged any individual with the crime of fraud – yet – but clearly the employer feels that it has sufficient grounds to go ahead with the dismissals.

I often to say to students that the employer merely has to have a reasonable suspicion that the employee has committed an act of misconduct. There is no need for the employer to demonstrate that the allegation(s) of misconduct meets the criminal standard of proof.

A link to the story on the Sky News website can be found below:

http://news.sky.com/story/150-toronto-hospital-staff-fired-over-prescription-scam-11760982

Had this story occurred in the UK, we would be talking about the matter in the context of Section 98(4) of the Employment Rights Act 1996. If employers can show that the reason for the dismissal of employees is justified i.e. on the grounds of misconduct (fraud), it will be a fair dismissal. As a point of good disciplinary policy, of course, employers should always follow the proper procedures when deciding to dismiss employees on the grounds of dismissal.

Copyright Seán J Crossan, 13 July 2019

Tickets for “people of colour” … or the problem with positive discrimination

Photo by Ehimetalor Unuabona on Unsplash

Tickets for “people of colour” …

In a previous blog (The force is not with you … published on 28 February and updated on 10 June 2019), I discussed the problems associated with policies of positive discrimination.

So, it is with some interest that I read an item on Sky News today about Afrofuture Fest a music festival which was to take place in the American City of Detroit. The festival organisers had offered tickets for sale to members of the public. Absolutely nothing unusual in that readers will undoubtedly respond, but what was unusual was the fact that the price to be paid in conjunction with an ‘early bird’ promotion was to be determined by the customer’s racial origins (tickets for “people of colour”).

If you were an African American applying for tickets, you would pay less than a White American wanting to go to the gig. I admit that I was intrigued by this marketing approach and I wanted to know what were the underlying motivations of the organisers? I confess: I’m coming from a different cultural perspective here in the UK and, generally, we’re not too keen on the widespread use of positive discrimination as a tool for promoting equality.

Well, it would seem that the pricing policy was motivated by a genuine determination to ensure that African Americans (who happen to be in the disproportionately lower income section of US society) were not deterred from attending the event by high prices. Furthermore, the organisers wanted a racially diverse group of music fans to attend the festival.

All well meaning, but the event has now become mired in controversy with the organisers receiving threats from white supremacist groups and artists deciding not to perform. The ticket policy has now been scrapped.

A link to how the story was reported on Sky News can be found below:

Festival scraps cheaper ‘people of colour’ tickets after ‘white supremacist threats’
http://news.sky.com/story/festival-scraps-cheaper-people-of-colour-tickets-after-white-supremacist-threats-11758953

Positive discrimination: the legal position

Discriminating in favour of one group of people over another (whether this is motivated by a good intention or not) will most likely be regarded as an example of direct discrimination which contravenes Section 13 of the Equality Act 2010.

The judgement of the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751 was particularly strong on this point and it was irrelevant that the Council was acting from motives of good faith i.e. to promote healthier lifestyles for female residents of the Borough. The simple fact was that the Borough Council was acting unlawfully (in breach of the then Sex Discrimination Act 1975) when it charged men for entry to the swimming pool when women were not charged for access to this facility. The Borough Council had committed an act of direct, sex discrimination.

Positive discrimination has only really been successful in the UK when the Westminster Parliament has given it the full backing of the law and, additionally, it complies with this country’s EU legal obligations.

One notable example of positive discrimination is the Sex Discrimination (Election Candidates) Act 2002 which aimed to encourage more women to enter Parliament by having all women short lists. Previously, such an attempt to promote positive action would have been illegal under the (now repealed) Sex Discrimination Act 1975.  Some (male) Labour activists did, in fact, bring successful legal challenges under the former sex discrimination legislation on the grounds that they had suffered discrimination because of their gender in being automatically disqualified from the parliamentary candidates’ selection process (Jepson and Dyas-Elliott v The Labour Party and Others [1996] IRLR 116).

The other example of positive discrimination involves the Police Service of Northern Ireland. The PSNI was created in 2001 following the Belfast or Good Friday Agreement in 1998. The PSNI replaced the old Royal Ulster Constabulary (RUC) which was largely seen as a biased or sectarian police force by most Roman Catholics in Northern Ireland.

According to figures produced by the official Patten Report, the RUC was overwhelming Protestant in composition (91.7% to 8.3% Roman Catholic).

One of the key recommendations of the Patten Report was that:

“An equal number of Protestants and Catholics should be drawn from the pool of qualified candidates.” [para. 15.10]

This led to a deliberate 50/50 recruitment policy in which half of the candidates recruited to the PSNI had to come from a Roman Catholic background.

That said, there was significant criticism of the 50/50 recruitment policy coming from the Unionist and Loyalist community in Northern Ireland – who were never going to be reconciled to the demise of the RUC in any case. The recruitment policy was only ended in 2011 by Owen Patterson MP, the then Conservative Secretary of State for Northern Ireland. Predictably, this development did not please the Nationalist and Republican community in Northern Ireland.

Affirmative or positive action

In the United States of America, of course, there is a completely different approach to the promotion of diversity and equality from what we would understand in the UK and the European Union. The Americans, for example, are very keen on affirmative action (or positive discrimination) and often employers will speak of filling quotas i.e. recruiting a certain number of African Americans or Hispanic Americans. This practice of affirmative action or positive discrimination is an attempt by the Americans to overcome the problems of historic and entrenched racism in their society. In the UK and the European Union, we too have had our problems with under-representation of certain groups in the work-place, but any attempt to introduce positive discrimination has been much more limited in scope.

Affirmative action has its limits: the ticket policy at Afrofuture Fest would, however, appear to be a breach of the Civil Rights Act 1964 (Title II) which states that:

“All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination on the ground of race, color, religion, or national origin.

The UK and EU approaches to positive discrimination

Limited positive action or discrimination has, for some time, been tolerated by the Court of Justice of the European Union where employers gave preference, as part of an equality policy, to female candidates over suitably qualified male candidates in order to address gender imbalances in the work-place (see Kalanke Freie Hansestadt Bremen (1995) C-450/93 and Badeck and Others (2000) C-158/97).

The Equality Act 2010 does, admittedly, permit what is referred to as ‘positive action’ in fairly limited circumstances and it has been observed that it does not really advance the law very much in this area.

Certainly, in terms of the public sector equality duty, organisations may be permitted to take specified forms positive action in the work-place to eradicate or minimise forms of discriminations e.g. ‘the need to tackle prejudice and promote understanding’ (see Section 149(5) of the Equality Act)

Section 158 of the Act permits an employer to take positive action to help individuals with a protected characteristic to overcome or minimise such a disadvantage. Such action on the part of the employer must, however, be a proportionate means of achieving this aim.

Section 159 also permits an employer to take positive action in recruitment and promotion in relation to people with protected characteristics. The employer will only really be able to utilise this provision if candidates for a job or a promoted post have the same or similar qualifications. In such situations, the employer will able to consider if candidates with protected characteristics are at a disadvantage or are under represented in matters of recruitment or promotion.

There is one important exception to the rules on positive action contained in the Act: it will not be illegal for an employer to treat a disabled person more favourably in comparison to a non-disabled person.

Conclusion

In the UK, positive discrimination in recruitment can be lawful under very limited circumstances. In other words, it is a practice which, if objectively justified, can be used to overcome historical patterns of discrimination e.g. to address the woefully low numbers of female politicians or the under-representation of Roman Catholics in the Police Service in Northern Ireland.

Such arrangements permitting limited positive discrimination tend to be governed by ‘sunset clauses’ i.e. they have a built in expiry date, so they will not last forever. Furthermore, positive discrimination is really only legitimate  in so called ‘tie-break’ situations where several applicants have the same qualifications and experience, but as a matter of public policy, for example, a female or minority ethnic applicant is given preference in order to address historic diversity imbalances in that particular work-place.

The Americans, on the other hand, have tended to pursue a very explicit policy of positive discrimination or affirmative action by placing an emphasis on the filling of quotas – either, for example, in employment or education. Such an approach places a legal obligation on employers and service providers (colleges and universities) to ensure that certain minimum numbers of people from racial or ethnic minority backgrounds are given a job or a place in training or education.

As we have seen with the ticket policy for events such as Afrofuture Fest, positive discrimination can be controversial and potentially unlawful.

Copyright Seán J Crossan, 8 July 2019

Ouch!

Photo by Seán J Crossan

A salutary tale from Northern Ireland about the dangers of unequal pay for employers.

Margaret Mercer, a Belfast solicitor, has been awarded £273,000 in compensation by the Industrial Tribunal (yes, they still exist in Northern Ireland) after she won her equal pay claim against her employer, C&H Jefferson (a law firm).

The Tribunal concluded that Ms Mercer had been doing “like work” when a comparison was made with 4 other colleagues who held the rank of salaried partner in the firm. Three of these individuals were men.

It should be recalled that, under equal pay legislation in the UK, individuals can bring claims on a number of grounds:

  • They are engaged in like work with their comparator(s);
  • They are engaged in work of equal value with their comparator(s); or
  • They are engaged in work rated equivalent with their comparator(s).

C&H Jefferson has stated that it intends to appeal the Tribunal ruling.

More details about Ms Mercer’s claim can be found below in the BBC article:

Belfast solicitor wins £273k in equal pay case

Margaret Mercer found out she was not being paid the same as some colleagues at the law firm C&H Jefferson.

Copyright Seán J Crossan, 26 June 2019