UK Employment Hub 

In the week after Father’s Day in the UK, insurance provider Aviva commissioned a report into Shared Parental Leave (SPL) polling 1,000 fathers and 1,000 mothers with children aged 16 and under nationwide. Despite the legislation on SPL being in force since 2015 and the recent government campaign “Share the Joy”, intended to raise awareness (which we talked about here), half of working fathers haven’t heard of SPL. This is particularly disappointing as nine out of 10 parents are reported as believing mums and dads should be given equal parental leave.

The results of the report tell us that 86 per cent of fathers would have liked to take more time off at the arrival of their children, but felt restricted by financial factors and employer constraints. The report’s authors at Aviva commit to an equal parental leave policy entitling male and female employees to 26 weeks each on full basic pay on the arrival of a child. However, not all employers have equalised their offering.

In the “2018 Modern Families Index Summary Report”, Working Families (the UK’s work-life balance charity) recommends “day one” parental and paternity leave rights in new employment, as well as properly paid, extended, standalone paternity leave for fathers, in an effort to tackle gendered assumptions about who works and who cares for children. Linking this to improving the gender pay gap, Working Families suggests that improved paternity leave will mean that fathers will be more likely to use it and thereafter be more involved in their children’s care throughout their life, having a knock-on effect on the participation and remuneration of women in the workforce.

Despite these findings the government has, regrettably, recently announced that, whilst it accepts the need for change in this area, calls by the Women and Equalities Committee for new measures on paternity leave and pay, SPL and driving cultural change have been roundly rejected. The Chair of the Committee, Maria Miller MP, said: “It is surprising that the government’s response does not refer to its own recently published research on the gender pay gap which found that if men and women took similar amounts of unpaid family leave the gender pay gap would decrease by 13 per cent … we will continue to press for reform.”

If you need any advice around family-friendly working policies and/or improving your organisation’s gender pay gap, please get in touch with your contact at Dentons.

The Employment Appeal Tribunal (EAT) has dismissed an appeal by Addison Lee, the London-based minicab and courier company, seeking to challenge an earlier decision regarding employment status. The EAT rejected the view that the contractual documentation between the parties supported a finding of self-employed status, and upheld the findings of the Employment Tribunal.

In August 2017 the Employment Tribunal held that a former courier, Chris Gascoigne, was a worker and not a self-employed independent contractor. As a result he was entitled to claim certain employment rights including holiday pay (our blog regarding the original ET decision can be found here).

Addison Lee’s position on appeal was that its couriers were under no legal obligation to work, as they could log-off from the app when they wanted and were free to decide whether to accept the jobs when they were logged on. They stated that at most there was a “gentle pressure” from a controller to accept jobs, but that no adverse consequences were actioned if the couriers did not accept.

In reaching its decision, the EAT emphasised that the facts of the case were the starting point rather than the law. Whilst Mr Gascoigne was not obliged to log into the app, when he was logged-on there was no mechanism for him to refuse jobs offered, other than contacting the controller in exceptional circumstances where the package was too heavy.  That Mr Gascoigne could log-off from the app, and there being no express sanction for failing to accept work, did not shift the EAT’s view that there was a contractual obligation for work to be offered and for the individual to accept it.  With the necessary mutuality of obligation demonstrated, worker status was established. You may recall that this was also found to be the position in the earlier CitySprint and Uber decisions.

Whilst cases in this area will always turn on their own facts, the decision is yet another nail in the coffin for employers within the gig economy. With a date set for the end of October for Uber’s challenge to worker status to be heard in the Court of Appeal, and the decision of the Supreme Court in the case of Pimlico Plumbers on the issue of employment status awaited, status cases look set to continue to dominate the headlines throughout 2018.

With the focus of many a blog post and newspaper article on the General Data Protection Regulation, (or GDPR to its friends .. and others), coming into force on 25 May, you would be forgiven for having missed the news that the Data Protection Bill received royal assent on 23 May. Having successfully steered its way through Parliament it officially became the Data Protection Act 2018 (DPA 2018).

The new Act came into force at the same time as the GDPR, ensuring that the UK remains a committed party to the European-led modernisation of data law.

The DPA 2018 has three main purposes that all employers should be aware of:

1. It incorporates the GDPR into UK law and aims to ensure that the standards set out in the GDPR have effect in the UK by enshrining those standards in UK law;
2. It repeals the Data Protection Act 1998 as the primary piece of data protection legislation in the UK and replaces it with what the government has described as “a comprehensive and modern framework for data protection in the UK, with stronger sanctions for malpractice”; and
3. Importantly, it ensures that the UK and EU data protection regimes will continue to be aligned post-Brexit so allowing the UK to continue to be able to freely exchange personal data with the EU.

With the dreaded 25 May 2018 commencement date now a thing of the past, and the GDPR and DPA 2018 in force, we are sure you will be glad to see the back of becoming compliance ready!  However, the legislation is here to stay and the way in which personal data is collected and processed is more important than ever.  Ongoing work is required to ensure that your business remains GDPR-compliant.  Please do contact us if you have any queries and/or require some expert advice.

The recent case of Mbubaegbu v Homerton University Hospital NHS Foundation Trust provides an interesting insight into the circumstances in which employers can summarily dismiss an employee for misconduct.

 Mr Mbubaegbu, a surgeon, was employed by Homerton University Hospital NHS Foundation Trust for 15 years. Prior to the disciplinary proceedings that led to his dismissal, he had an unblemished disciplinary record with no previous warnings. Following the introduction of new Department Rules and Responsibilities (the DRR) in 2013, Mr Mbubaegbu was informed that his compliance with the DRR would be monitored. An investigation was later carried out which found that there had been non-compliance with the DRR by Mr Mbubaegbu. In total, 17 allegations of non-compliance were made against him during the investigation and Mr Mbubaegbu was subsequently summarily dismissed for gross misconduct, despite the Trust being unable to point to one allegation that, on its own, amounted to gross misconduct.

 Mr Mbubaegbu issued a claim in the Tribunal for unfair dismissal and, when his claim failed, appealed to the EAT. However, the EAT dismissed the claim and held that it was not necessary for there to be one particular act that amounted to gross misconduct for a summary dismissal to be fair. It held: “There is no authority to suggest that there must be a single act amounting to gross misconduct before summary dismissal would be justifiable or that it is impermissible to rely upon a series of acts, none of which would, by themselves, justify summary dismissal“.

 This case illustrates that a series of acts of misconduct can, taken together, amount to gross misconduct in some circumstances. The focus is likely to be on whether the employee’s actions have undermined the relationship of trust and confidence, not whether one act on its own could amount to gross misconduct.

 This is a helpful case for employers. However, employers should be very cautious before using it as justification to dismiss an employee without any prior warnings where there is no clear act of gross misconduct. In this case, the tribunal was entitled to find that dismissal was within the range of reasonable responses open to the employer, however, similar cases will always turn on their own facts. The decision in this case was also impacted by the fact the employer was operating within a regulated industry (the NHS) and Mr Mbubaegbu’s conduct could be used as a benchmark for measuring the conduct of other employees.

One of the biggest barriers to gender equality and pay parity is a continuing resistance by employers to embrace agile working.

A recent joint study from flexible working specialists, Timewise, and Deloitte sets out the following five step plan to help employers establish and implement new working cultures with the aim of improving pay parity between men and women:

• challenge the status quo: leaders must provoke cultural change
• emphasise the value of male and female role models: flexible working should be gender neutral
• ask “why not” rather than “why”: design flexibility into the job
• provide the permission and tools to support a flexible workforce: influence the attitudes and actions of managers
• measure the success of flexible working: collect the data

The study, dubbed a “Manifesto for Change, indicates that 30 per cent of workers who work flexibly feel they have less status and importance as a result.  A quarter of 2,000 people felt they missed opportunities to further their career because of this.  By comparison, 73% of respondents wanted their workplaces to reward people for the job they did rather than the number of hours they spent there.

The study identified that barriers to flexible working practices are largely cultural and often come down to the views and behaviours of managers.  Most respondents agreed that companies needed to recruit and train managers who truly support their team achieving a work/life balance, and implement a range of suitable flexible working options.

The clear message from the study was that “Employers need to catch up with the needs and aspirations of the modern workforce, or risk getting left behind.”  Now is the time to review flexible and agile working policies and practices and refresh the message to managers and employees alike that agile working practices are positive and here to stay.