Author: Ilinca Mardarescu

Under the Equality Act 2010, there are a number of “protected characteristics” which form the basis of any discrimination claims.  Many are familiar with discrimination being unlawful on the grounds of race, sex or disability but in fact there are nine protected characteristics with religion or belief being one of them.

Until now, veganism was not considered a “belief” but Norwich Tribunal has now ruled that ethical veganism qualifies.  Judge Robin Postle stated that the belief is worthy of respect in a democratic society and is not incompatible with human dignity nor does it conflict with the fundamental rights of others.

This is an Employment Tribunal ruling only at this stage and therefore is not binding – and could still be appealed. However, the decision has (quite rightly) been described as “potentially significant” by the solicitors acting for Mr Casamitjana.

Mr. Casmitjana brought this case to court following claims that he was sacked by the League Against Cruel Sports, an Animal Welfare charity. And, it was because of his ethical veganism that he was fired, following a confrontation with the charity who were investing pension funds into firms involved in animal testing.

What is ‘Ethical Veganism?’

The term ethical veganism pertains to more than just a diet of no animal products. An ethical vegan believes in excluding all forms of animal exploitation from their lifestyle, meaning things like clothing, make-up, toiletries and avoiding companies with a history of animal testing.

So what does this ruling mean?

As matters stand, Ethical Veganism is now protected as a philosophical belief under the Equality Act 2010. This means that employers may be required to respect ethical veganism and make sure there is no discrimination against the ethical vegan’s beliefs.  How far this will go is yet to be seen.  Employers will be required to watch out for perceived ‘banter’ with ethical vegans on their beliefs or, the use of unethical products within the business.  But this could prove problematic in the catering business for instance.    No doubt this ruling will shape and change the HR landscape within businesses in years to come.

While the year wraps up for many people it can sometimes be a stressful, busy and worrisome time for employers. Christmas can always be a challenging time when it comes to leave and employees, with many staff expecting time off over the Christmas break to spend time with love ones and family. But, with some businesses potentially taking a hit in productivity and profits if their business loses the majority or all of their manpower over the festive season, it’s inevitable the question can sometimes rise ‘How should I handle staff wanting time off over Christmas?’

Restrict Holiday or telling Employees to take it.

As an employer you are entitled to restrict when an employee takes their holiday leave if it adversely affects the business, for instance in busy periods. It is also the employers prerogative to tell staff to take leave at particular times of the year should they deem fit.

If, as an employer, you want to refuse leave to an employee then it is generally accepted that you give them as much notice as possible; the minimum being as much as the leave amount requested. But remember, legally and in the interest of overall engagement of your employees it is recommended that you act fairly.

Everyone wants time off but you need people over the busy period.

Many businesses unavoidably have a busy time over Christmas, especially those in the retail sector. Firstly, it is recommended you state in your employee contract that Christmas holiday is restricted and that the employees must give at-least twice the leave period notice to ask for holiday (for instance 4 weeks before for a 2 week holiday).

Things like rotas or first-come-first-serve could be your best option. It’s important to establish an unbiased and fair system for those wanting to book holiday. Using software and good processes can help alleviate the stress of juggling many leave requests.

Ultimately it comes down to employee expectations and clarity, if you’re upfront about your situation as early as possible it will help employees come to terms with the decision, make arrangements and help alleviate a potential hit to moral.

Need to change your mind on granted holiday?

This is technically possible for an employer to do, you have the right to retract granted holiday for business critical emergencies. But, keep in mind this is firstly highly inadvisable for an employees’ contentment point of view, as well as incurring the danger of needing to pay out compensation on travel or booked holiday arrangements made by the said employee.

Tips to handle Christmas Holiday correctly:

• Try to create a yearly rota if people are required to be in over the holiday. Or, offer the day off to some employees and swap it over the next year.
• Actively encourage your employees to put in their holiday request as far in advance as possible.
• Implement easy to use software or processes for submitting holiday for staff.
• Seek a professional to help write out a clear and well-written employment contract and/or holiday leave policy, to help avoid contention and keep expectations clear.

If you’re worried about the holiday and your preparedness for it in the coming month, then don’t hesitate to call our employee law experts who can not only help you refresh your employment contracts, but also discuss potential legal issues with employees.

Channel 4 is among many big employers to now introduce a ‘menopause policy’ for their employees. This is backed by MP’s who have recently called for policies such as this to become common-place.  And indeed the figures speak for themselves – CIPD research claims that women over the age of 50 are one of the fastest growing demographic in the UK workforce and that 59% of women claim to have experienced menopausal symptoms which have had a negative impact at work.  It seems clear that it’s about time companies begin to think about implementing a policy to help their affected staff.

But, what is a Menopause policy exactly?

A menopause policy aims to support employees who are experiencing menopausal symptoms, which can include hot flushes, anxiety and fatigue. The policy can help outline ways in which women can ease their symptoms helping improve their engagement, well-being and opening the discussion what can sometimes be seen as a taboo subject.

With big companies like Channel 4, Google and CIPD implementing and bringing the idea into the workplace consciousness, it is opening up critical conversations which are essential for helping and support women with their transition through the menopause.

Channel 4’s Policy for example includes things like flexible working, paid leave and adjusted working environments such as quiet and cool work spaces. These insights and actions come from regular workplace assessments to make sure the environment is just right for women dealing with menopausal symptoms.

A call to bring a Menopause Policy into the Law

With some MP’s calling for more of an understanding and widespread implementation of a Menopause Policy, like MP Carloyn Harris saying: “You wouldn’t dream of having a workplace where people weren’t entitled to certain things because they were pregnant, and it’s exactly the same for women with the menopause. I firmly believe there should be legislation to make sure every workplace has a menopause policy, just like they have a maternity policy.”

And, the CIPD putting in place a manifesto which puts to the Government statements like; “The Government should ensure that menopause is referenced as a priority issue in its public policy agenda on work, diversity and inclusion”, “The Government should nominate a Menopause Ambassador to represent the interests of women experiencing menopause transition across Government departments” and “The Government should support an employer-led campaign to raise awareness of the menopause as a workplace issue” It’s clear that this important issue is coming to light and should spur the Government to begin making changes.

Currently, the only potential claims would be for either sex discrimination or disability discrimination where the symptoms were severe enough.  This leaves women going through the menopause vulnerable at a time when they need support most.

Implementing your own policy

If you own a business and employ workers over the age of 50 who will soon be experiencing symptoms of the menopause it’s important to provide some kind of policy and/or guideline to help them with the inevitable discomforts it will cause them.

Things you can include in the policy:

• Flexible Working
• Paid Leave
• Environmental Changes like cool, private rooms.
• Implementing a ‘Menopause Champion’
• Workplace Assessments
• Mental Health Support

If you’re keen to implement a policy like this or need a complete overhaul of your company polices, we can assist. Please don’t hesitate to contact our Head of Employment Law, Ilinca Mardarescu.

Tillman v Egon Zehnder Ltd is the first employee competition case to be heard by the Supreme Court in over 100 years, establishing clear guidelines for the application of the severance principle in employment contracts and bringing the issue of restrictive covenants in modern business to the forefront.

The case’s background

Ms Tillman’s contract of employment with executive recruitment firm Egon Zehnder (EZ UK) included a non-compete clause which stipulated that she would not “engage or be concerned or interested in” any business competing with EZ UK.

EZ UK was granted an injunction to enforce the non-compete clause after Ms Tillman made clear her intentions to start working for a competitor.  However, the Court of Appeal later considered that the words “interested in” would prohibit a minor shareholding, which they found unreasonable, so held the covenant to be void. 

The Supreme Court’s Involvement

EZ UK appealed to the Supreme Court raising three issues, namely:

1. whether a prohibition on holding shares falls outside of the restraint of trade doctrine;
2. whether the words ‘interested in’ prohibited minority shareholding if properly construed; and
3. whether the doctrine of severance was applied correctly.

The court concluded that:

1. falls within the doctrine (but only on the facts of this case due to Ms Tillman’s employment as a top executive);
2. Upon the application of the validity principle, the court determined that the Appellant was unable to provide a realistic alternative construction and on that basis considered the word “interested” to be an unreasonable restraint of trade; and
3. Despite agreeing with the Court of Appeal’s decision to set aside the injunction, the Supreme Court considered the principle of severance in relation to the words “interested in” and held it would be possible to apply it appropriately in this situation. 

Judgment

The case generated a review of what is known as the ‘Blue Pencil Rule’.  The Court clarified that the removal of wording or a provision within a clause must not generate any major change in the overall impact.  It further ruled that it was the employer’s responsibility to establish this. The Court subsequently determined that the words “or interested in” could be removed from the clause without disrupting its general restraints.

Impact

The case is significant in revising the severance principle and establishing the criteria for its future application. This will likely prove valuable in enforcing future post-termination restrictions.  It also gives clear guidance to employers as to how they should draft non-compete clauses in contracts. The Court further considered the historical significance of the restraint of trade doctrine as one of the earliest products of common law, but it also affirmed the wider principle of allowing severance when it does not generate major change in the overall effect of the restraints.  However, the Supreme Court declined to decide on “the outer boundaries of the doctrine” suggesting this may be an area for further development in future cases.

For now, employers are likely to feel reassured by the principles set out in Tillman v Egon Zehnder – although as always, great care should be taken when drafting such clauses.

For advice on how best to protect your business interests, please contact our Head of Employment, Ilinca Mardarescu on 01753 486 777.

The Supreme Court dismissed Pimlico Plumber’s appeal recently paving the way for a deluge of claims from “workers” in the gig economy.  The judgment upheld the Employment Tribunal’s and Court of Appeal’s finding that Mr Smith, a plumber, could be classified as a “worker” in employment under the Equality Act.  Workers have less protection than employees but are still given certain rights such as holiday pay and sick pay.

The Supreme Court held that Mr Smith was a “limb worker” because Pimlico Plumbers were clearly not his client and there was an element of control by Pimlico over him in that (amongst other things) they told him to wear a uniform and controlled when and how much he was paid.  This was despite the fact that he had been paying tax as self-employed and was entitled to refuse work offered to him.

It is thought that many gig-economy workers will now bring claims on the back of this.   In reality the case concentrated very much on its facts and simply upheld the view that the Employment Tribunal and Court of Appeal were entitled to make the decision made based on the facts.  It does little to change current case law with regard to worker/employee status. However, workers in the gig economy are likely to be bolstered by this victory.

Modern Slavery

The Modern Slavery Act 2015 came into force on 29 October 2015.  It consolidates offences relating to slavery and trafficking.  S.54 provides that all organisations with a turnover of over £36 million will need to publish a statement each year relating to the action they have taken to ensure that their business and supply chains are slavery free.

However, it’s not just companies with a turnover of over £36 million that need a modern slavery policy.  The big companies have to check their suppliers have them, who in turn ask their suppliers and so on, all the way down the line. For this reason, smaller business are now finding they are being asked to provide a copy of their relevant policies when bidding for work or supplying a client within the normal course of their business.

What is it?

Slavery and human trafficking comprises any of the following:

• The offences of slavery, servitude and forced or compulsory labour and human trafficking
• The traffic in prostitution
• The trafficking for exploitation
• Conduct that would constitute an offence as above if the conduct took place in the UK.

The statement

The Home Office has issued guidance on what it would expect to see as part of the requisite statements.  They have confirmed statements should be:

• Written in simple language to ensure that it is easily accessible to everyone.
• Succinct but cover all the relevant points and link to relevant publications, documents or policies (as may be relevant in the different types of businesses).
• In English (but may be provided in other languages that are relevant to the supply chain).

The slavery and human trafficking statement must include either a statement:

• Of the steps the organisation has taken during the financial year to ensure that slavery and human trafficking is not taking place in any of its supply chains, and in any part of its own business; or
• That the organisation has taken no such steps.

There is no prescribed form or length requirements for the statement.  The slavery and human trafficking statement may include information about:

• The organisation’s structure, business and its supply chains;
• The policies and procedures it has put into place to avoid slavery and human trafficking;
• Its due diligence in relation to its supply chains to ensure they are acting to avoid slavery and human trafficking;
• The parts of its own business and/or supply chains where there is a risk of slavery and human trafficking taking place, and the steps it is taking to assess and manage that risk;
• Its effectiveness in ensuring that slavery and human trafficking is not taking place (measured against such performance indicators as it considers appropriate for its industry);
• The training about slavery and human trafficking available to its staff.

What needs to happen?

Although these provisions have been in force since 2017, commercial organisations with a financial year that ends before 31 March 2016 did not have to make a slavery and human trafficking statement in respect of that financial year.  This has meant that the effect of this legislation is only now beginning to be felt by smaller business.  As part of these obligations therefore, the larger companies will need to check that their suppliers have a modern slavery policy in place too.

Larger businesses will by now be starting to send out questionnaires to their suppliers (and they to their suppliers and so on). The questionnaire will require copies of a Modern Slavery policy, possibly a Whistleblowing policy and details of training, management and information regarding how the business is run and what each businesses does to ensure they themselves do not fall foul of the laws relating to this. If businesses are not fully prepared, they may find that the larger companies do not want to risk doing business with them until they are.  Certainly, any businesses which tender for work will find they need to provide this information as part of the tendering process.

For any assistance with drafting or implementing an Anti-Slavery Policy and associated procedures, please get in touch with :

Ilinca Mardarescu

Head of Employment

Fixed Retirement Age

Compulsory retirement ages in contracts of employment used to be the norm.  Now however, inserting such a clause would need careful consideration. Indeed, unless it can be shown that a fixed retirement age can be objectively justified (which can be extremely difficult to do), an employer risks falling foul of the Equality Act.

Since the abolition of the default retirement age (DRA) on 6 April 2011, employers must now make a conscious decision as to whether or not to have a fixed retirement age. The answer seems to have been that some employers may decide to have a fixed retirement age for only some (more specialist) roles within their organisation.  But all will need to consider carefully the requirements before enforcing any such policies.

When can an employer justify having a fixed retirement age?

Compulsory retirement is prima facie direct age discrimination. However, unlike other forms of direct discrimination under the Equality Act 2010 (EqA 2010), direct age discrimination can be objectively justified if it is “a proportionate means of achieving a legitimate aim”.

If an employer wishes to have a fixed retirement age, it must be able to show that:

• It is intended to meet a legitimate aim;
• Having the particular retirement age meets that aim; and
• It is proportionate to use that retirement age as a means of meeting that aim.

If an employer cannot meet the above criteria, the only other way to defend an age discrimination claim based on compulsory retirement would be to show that the age limit on the job in question falls within the “occupational requirement” (OR) defence (i.e. police, firemen, pilot etc).

Legitimate aims

A legitimate aim must correspond to a “real business need”. While in indirect discrimination cases, there is no requirement for the employer to show that the legitimate aim has any wider public interest or social policy aims, it appears that when attempting to justify direct age discrimination, the employer needs to be able to show that its legitimate aim has some social policy or public interest benefit.

This can be seen in the case of Seldon v Clarkson Wright & Jakes & Anor in which a law firm argued that retiring partners at a certain age was objectively justified on the grounds that the business needs to be able to recruit and retain “new blood” coming through.   The Supreme Court found that where such default retirement age policy is introduced and where it is “founded on legitimate social policy aims”, imposing a certain retirement age could be lawful.

It is clear that however that a blanket compulsory retirement age is highly unlikely to work in most business. If the decision to enforce a compulsory retirement age is made, there should be clear and detailed thinking to see if it would stand up to the requirements for it to be a proportionate means of achieving a legitimate aim.

For more information or for any employment law advice, please do not hesitate to contact

Ilinca Mardarescu.

Employment Law in 2017 – Important Changes

2017 is expected to bring about a few important changes to employment law.

The most anticipated will be the Supreme Court’s decision on Brexit which is due soon. Whilst no immediate employment law changes will happen on the back of this, there will undoubtedly be much speculation as to how Brexit will affect employment law generally in the future.

Similarly, the 2016 Budget and thereafter the Autumn statement both confirmed that changes would be introduced to the tax treatment of termination payments.  The government are consulting on the draft bill now with the changes expected to be implemented at a later date, namely in April 2018.

More immediate changes for employment law in 2017 expected are:

• The current weekly rate of statutory maternity/paternity/adoption/shared parental leave pay (which is currently £139.58, or 90% of the employee’s average weekly earnings if this figure is less than the statutory rate) is being increased to £140.98. This will take affect from 2^nd April 2017.
• The minimum wage for workers over 25 will increase to £7.50 in April, an increase of 30p on the rate introduced last year. There will be smaller increases for 18-20 and 21-24 year olds, to £5.60 and £7.05 respectively.

• From 6^th April, statutory sick pay (SSP) is also increasing from £88.45 to £89.35. This is, as usual, subject to minimum eligibility requirements.

• Gender pay gap reporting. Employers with 250 or more employees will be required to produce gender pay gap reports by April 2018 for the financial period 2016/2017.

• Large employers (with an annual payroll of more than £3 million) will be required to pay a 0.5% levy on their total pay bill, by 6^th April 2017. Larger employers will then be able to access the fund (plus a 10% top-up from the government) to fund accredited apprenticeships within their business. Different rules will apply to smaller employers who are not required to pay the levy – in which case the government will fund the cost of apprenticeships if they contribute 10%.

• Salary-sacrifice schemes will start to be phased out with no new schemes to be introduced from April 2017 and the ones set up prior to this date will be protected until anywhere between 2018-2021 depending on the type of scheme in place.

– Ilinca Mardarescu

For any advice on implementing the changes or any other employment-law related enquiry, contact us here or call us on 01753 486 777.