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Managing a flexible workforce

With Christmas on the way (a busy time of year in many sectors – including hospitality) Big Hospitality has published our article on three key ways to manage a flexible workforce.  Please do have a read here – the principles can be applied to other types of flexible workforce too.

Managing a flexible workforce

Check the holiday calendar!

Failure to correctly plan pilots' holidays will result in Ryanair cancelling hundreds of flights over the next six weeks.
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Check the holiday calendar!

Suspension for alleged misconduct may be a breach of contract

In the recent case of Agoreyo v. London Borough of Lambeth [2017] EWHC 2019 (QB), the High Court has held that suspension as a "knee-jerk" reaction to an allegation of misconduct may in itself be sufficient to breach the implied contractual term of trust and confidence.
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Suspension for alleged misconduct may be a breach of contract

Self-employed contractors and the gig economy – keep watching this space!

Pimlico Plumbers has now been granted permission to appeal to the Supreme Court. The decision reached by the Supreme Court will be significant as the highest authority on the employment status of purportedly self-employed contractors. It is likely to have implications for the so-called "gig economy".
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Self-employed contractors and the gig economy – keep watching this space!

Slowly getting there – what might immigration look like after Brexit?

It may not have been accompanied by the usual pomp and circumstance, but the Queen’s speech yesterday did give us some further clues as to what the government has planned for EU nationals post-Brexit. In her speech, the Queen confirmed that there were plans for an immigration bill which would enable the government to end the free movement of EU nationals into the UK, but still allow the country to attract “the brightest and the best”. She also stated that the bill would require EU nationals and their families to be “subject to relevant UK law”. This seems to suggest that we can expect to see a skills-based immigration system for EU workers following Brexit. Reading in between the lines, it also seems we can expect those EU nationals already working in the UK to be allowed to remain, if they choose to do so. However, those who choose to do so will be subject exclusively to UK law, and not enjoy the protections afforded by the European Court of Justice. Presumably this would work along the lines of Norway’s membership of the single market.

Currently EU nationals in the UK are advised to apply for permanent residency if they meet the qualifying criteria. The thinking being that this may be sufficient to secure their stay in the UK after Brexit. Theresa May is in Brussels for Brexit talks today, where she is set to address EU leaders on her plans for those 3 million EU nationals currently residing in the UK, and the 1 million UK citizens currently residing elsewhere in Europe. We understand that full details of her plans will be published on Monday, ending the uncertainty that currently hangs over those who have exercised their right to freedom of movement, and over their employers.

Slowly getting there – what might immigration look like after Brexit?

Shared parental pay – equal rights for fathers in sex discrimination claim

In Ali v. Capita Customer Management Ltd, the employment tribunal upheld a father’s claim of sex discrimination on the basis that his employer’s policies gave fathers on shared parental leave fewer rights to full pay than mothers on maternity leave.

Under Capita’s family-friendly policies, female employees were entitled to the option of 14 weeks’ full pay on maternity leave, while fathers were entitled to two weeks’ full pay on paternity and shared parental leave. This created particular difficulties for Mr Ali. His wife, who had intended to take maternity leave, suffered from post-natal depression and was advised by her doctors to return to work in order to recover from it.

Mr Ali asked Capita whether he could take leave to look after their child instead. Capita responded that he could take shared parental leave but would only be entitled to statutory pay, not full pay. As a consequence, Mr Ali decided not to take shared parental leave, but took other types of leave instead. His problems were then compounded by a line manager who did not appreciate how to appropriately handle an employee in a sensitive situation such as that of Mr Ali.

The tribunal held that Mr Ali was subjected to direct sex discrimination, since a female comparator in the equivalent situation would have been entitled to full pay. Capita plans to appeal the case to the EAT, referring to other cases where the EAT has supported enhanced payment rights for female employees over male employees while on leave.

As a first instance tribunal decision, this is not binding. We would recommend that employers await some appellant authority on the issue before making any changes to their existing shared parental leave policies.

Shared parental pay – equal rights for fathers in sex discrimination claim

The zero-hours contract debate: is the end in sight?

It was reported yesterday that McDonald’s is set to offer employment contracts containing fixed hours to its 115,000 employees employed under zero-hours contracts. This follows a trial offer across 23 restaurants, following which 20% of employees at those restaurants elected to switch to contracts containing fixed working hours.

McDonald’s 115,000 zero-hours employees represent a significant proportion of the 905,000 that the Office of National Statistics reported last month were employed on zero-hours contracts for their main job between October and December 2016. This, therefore, is a significant move. It remains to be seen how many of the 115,000 will in fact take up the offer of fixed hours. However, the 20% figure from the trial suggests that the debate over zero-hours contracts is not over yet – it is notable that 80% of those included in the trial elected to stay on zero-hours contracts (although we do not know how the terms otherwise compared).

What is clear (and has been for some time now) is that, disregarding the benefits of zero-hours contracts for employers, whilst many employees prefer the certainty and security of contracts containing fixed hours, many value the flexibility of a zero-hours working arrangement. It seems McDonald’s has now found a way of putting this debate to bed within their organisation, by giving staff the ability to choose between the two, but otherwise it remains on-going. Research by the Trade Union Congress, also released yesterday, has found that the number of employees in the UK in insecure employment (including, but not limited to, zero-hours contracts) continues to grow.

Perhaps the solution McDonald’s has found would help address the debate elsewhere. It may be that the answer is not to ban zero-hours contracts but to change the law so that all employees who would otherwise be given zero-hours contracts, are offered the choice of a zero-hours arrangement, or a fixed hours arrangement on comparable terms. This is certainly something that larger employers, at least, may want to consider. For now though, the debate looks set to rumble on.

The zero-hours contract debate: is the end in sight?

Dress code in the workplace: keep your high heels on!

The government has undertaken to produce new guidance on workplace dress codes this summer following a joint report published by the Petitions and Women and Equalities Committees (the Committees). The report called for urgent action to improve the effectiveness of the Equality Act 2010 (the Equality Act) in preventing discriminatory practices of dress at work.

The issue attracted the public’s attention last year when Nicola Thorp brought a petition to Parliament with more than 152,000 signatures supporting a change in the law on dress codes. Nicola was sent home from work for refusing to wear high heels on her first day as a temporary receptionist.

In response to the joint report, the government rejected calls to ban employers from forcing women to wear high heels. It stated that, while the Committees had uncovered practices which appeared sexist, unacceptable and potentially unlawful, a redress scheme already existed under the Equality Act. The government also rejected calls to increase fines for employers who have sexist dress codes, arguing the current fines of up to £30,000 for the most serious discrimination were “proportionate and fit for purpose”. A proposal to allow tribunals to issue injunctions banning sexist dress codes was also rejected.

For now, we await the government guidance on dress codes. Meanwhile, employers are encouraged to review whether their dress codes comply with the Equality Act.

Dress code in the workplace: keep your high heels on!

Dealing with personal relationships in the workplace

It has recently been reported in the press that John Neal, the CEO of the Australian headquartered insurance and reinsurance company QBE, had his annual bonus cut by twenty per cent (which equated to AU$550,000 or £340,000) for failing to disclose a personal relationship with his executive assistant. The decision to cut his bonus was taken despite what QBE described as a “commendable year [during which he] delivered a strong full year result”.  It has been reported that Mr Neal’s executive assistant was also executive assistant to the board.  QBE requires executives to disclose workplace relationships under its executive code of conduct.

Workplace relationships are common. Employees necessarily spend significant time together, and in many cases will have common interests.  Some employers view these relationships as a positive.  For example, one of the UK’s largest independent travel agencies is known to have produced well in excess of 100 marriages.  However, workplace relationships can be a distraction, can fuel gossip and can sometimes complicate decision making.  To be clear as to their expectations, employers should consider the circumstances in which workplace relationships may be inappropriate, and may wish to put in place a policy on them.  Any policy should strike a balance between an employee’s right to a private life, and the employer’s right to protect its business interests.  In most cases, this is likely to include a requirement that an employee discloses any workplace relationship that may give rise to a conflict of interest or a breach of confidentiality.  It should also be made clear to employees that they must not allow personal relationships to influence their conduct in the workplace.

Mr Neal’s case is an extreme example.  As CEO, he was clearly obliged under the executive code of conduct to disclose any personal relationship with a colleague.  Mr Neal has himself admitted that he did not do this, and that he could see that it might cause damage to the company’s reputation.  It is important to remember that the issue here was not the relationship itself so much as Mr Neal’s failure to abide by the code of conduct, and disclose it.  Whilst it has been reported that Mr Neal’s executive assistant has decided to leave QBE, it is understood that no action was taken against her, presumably because she was not subject to the code of conduct.  It is unlikely to be appropriate for employers to take steps to reduce bonuses, or take disciplinary action against an employee, simply for having a personal relationship with a colleague.  Such steps may be appropriate though, where an employer has a policy on workplace relationships which an employee deliberately disregards.  As always, when making a decision to reduce a bonus payment in any circumstances, an employer should consider whether the terms of the bonus scheme allow it to do this.  Failure to do so might lead to a claim for unlawful deduction from wages, or breach of contract.  The specific terms of the bonus scheme which applied to Mr Neal are not known.

Dealing with personal relationships in the workplace

The future of migrant workers in the UK?

With the Prime Minister preparing to trigger Article 50 around 15 March, and so begin the process of Britain’s exit from the European Union, the Cabinet’s Brexit Committee has started to prepare a two-stage plan to deal with immigration. The plan will seek to deal with EU nationals already in the UK, and to set up a new visa regime for those who arrive in the UK in future. The Prime Minister intends that this will go hand in hand with the deal with EU member states to safeguard the rights of British citizens living in the EU, as well as those of EU citizens living in Britain. If such a deal can be reached, it is expected that all EU citizens residing in the UK as at the date Article 50 is triggered will be protected.

The focus of the proposal, which is thought to be outlined in a consultation document to be published this summer, is to take steps to enable the UK to access the skills of workers in key industries in the short term, and to ultimately seek to reduce migration. The proposal, which is subject to the consultation and is not expected to be introduced as a bill until early 2018, is expected to include:

  • five-year working visas for new arrivals who are coming to the UK to take up jobs in key industries (including health and social care, and construction);
  • creation of a “migration advisory committee” to advise on how many visas should be issued in each key industry; and
  • plans to train British workers so that they can fill jobs in sectors which currently rely heavily on migrants, so that the number of visas issued can be reduced over time.

The bill would become law before March 2020. This will be of particular interest to employers who rely heavily on migrant workers.

The vote in the House of Lords last week also means that the government may need to amend the Brexit Bill to guarantee the rights of EU citizens already living in the UK. This will hopefully result in more clarity for the thousands of EU citizens working in the UK and the companies that employ them.

 

 

The future of migrant workers in the UK?