Employment Law round up and what to watch out for in 2016

February 23, 2016

Can you ask your staff to communicate in ‘English only’ in the workplace?

An Employment Appeal Tribunal ruling (Kelly v Convance Laboratories Ltd 2015) has confirmed that provided your reasons are justified, to require your employees to communicate in English in the workplace is not discriminatory.  In this case, the employer was concerned about what the employee was doing and needed to know what she was saying, so this was not because she was Russian (in this case), they would have treated any employee in the same way in the same circumstances.  Consistency of approach, as always, is the key.

Zero-hours contracts

A new right for individuals on zero-hours contracts not to be dismissed or subjected to a detriment because they’ve breached an exclusivity clause came into effect on 11th January 2016.  Any employee dismissed on this basis will be able to bring a claim for automatically unfair dismissal from the first day of employment.  ie they won’t need to have the usual two years’ continuous service.

The employee’s right to be accompanied

The recent case of Eleftheriou and Arriva London North Ltd (2015) has brought back into focus the question of whether an employee can refuse a companion to attend a disciplinary hearing.  In this case it was ruled that even though the companion had behaved badly at a previous hearing, they could not refuse their attendance at a subsequent one.  So, make sure the employee and their  companion understand the rules and boundaries of a companion, and also, if there are issues of confidentiality, you can ask the employee to sign a workplace companion confidentiality agreement.  If they breach confidentiality or behave inappropriately, it could be them facing a disciplinary hearing next….

Associative Discrimination Ruling

The concept of Associative Discrimination was introduced with the Equality Act in 2010.  An employee can claim associative discrimination if they are treated less favourably because of their association with another person’s protected characteristic.  As the case of Thompson v London Central Bus Company (2015) now shows that this association is not limited to  any direct or particular connection to the person with the protected characteristic but could relate to anyone for example, a fellow employee.   So in practice, if you are contemplating disciplining someone for arriving late at their desk, and discover that this is because they were assisting a fellow employee with a protected characteristic, you may have to think again!

Flexible Working – Right of Appeal

Employees who have the right to make a flexible working request (after 26 weeks of continuous employment) also have the right to appeal should it not be granted.  Previous decisions may not be relevant in such an appeal as every case is treated on its own merits with the current circumstances being taken into account.  Also, whilst the tougher timescales for considering a request have been relaxed under the 2014 legislative changes, you should complete the process of considering a request within a 3 month period, and not allow it to drag on indefinitely.

Grievances – An axe to grind?

All employees have the right to raise a grievance relating to any concerns, problems or complaints that relate to their employment.  However, sometimes false allegations can be made where a different agenda may exist between employees.  If you suspect this, you need to ensure that you have satisfied yourself that there is no evidence to support the grievance before dismissing it.  And if you can prove that there was a malicious intent, your disciplinary procedure can be invoked.

Obtaining a reference

More and more employers are finding it hard to obtain a meaningful reference from a previous employer as threats of litigation loom large, and employers are reluctant to give more than basic factual information to prospective employers.  There’s nothing to stop you from asking a prospective employee for a copy of their last appraisal – which will give you stacks of information that will be useful to you if it has beenproperly completed.  They only thing to be wary of is that without the author’s consent, the prospective employee should ensure that the identity of the author is blocked out, to avoid any data protection breaches.

National Living Wage

The New National Living Wage of £7.20 per hour for employees over the age of 25 comes into force on 1st April 2016. For employees under the age of 25 the National Minimum Wage levels are maintained and to remind you the table below shows the current rates, in effect from October 2015.

Age range Current entitlement
21 and over £6.70 per hour
18-20 year olds £5.30 per hour
16 and 17 year olds £3.87 per hour
Apprentices £3.30 per hour

 

The Government is promising harsher penalties to employers who fail to meet this legal minimum payment to their employees.  Specifically, the financial penalty payable to the Secretary of State will increase from 100% to 200% of the breach – and this could amount to a hefty sum if a number of employees are involved.

Make sure you are prepared for the increase ahead of the implementation date and its worth doing a quick audit even if you think you are already compliant…just in case.

Statutory Rates 2016/17

The statutory parental payments and statutory sick pay will not increase in the coming financial year.  They will remain as for the previous year – subject to Parliamentary approval.  This is only a formality so you can be confident that these figures will be maintained in the coming year

SSP £88.45
Minimum qualifying earnings for SSP are £112
SMP, SPP, SAP AND ShPP £139.58 or 90% of employee’s average weekly earnings.