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Sisters doing it for themselves?

The world of work is changing. According to a combined study by Oxford Ecomonics and the online retailer notonthehighstreet.com, female entrepreneurs are leading the way in shunning normal working hours. Many have set up their own businesses in an attempt to juggle home and work commitments. They enjoy having flexibility to juggle home and work life, without reverting to part time work and a consequent reduction in their finances. Employers are advised to think about how they can adapt to changing work habits to recruit and retain the best talent.

The full report can be found here http://www.notonthehighstreetpresscentre.com/wp-content/uploads/Noths_Report_Release_London.pdf

Sisters doing it for themselves?

Women returners

Of the thousands of professional women currently on a career break, around 427,000 want to return to work at some point in the future. However, research shows that, upon returning to work, three in five women could end up in lower-skilled jobs and 29,000 women returners would prefer to work more hours but are unable to do so due to the lack of flexible working opportunities (click here for link to PWC’s report on women returners). At the end of January the Women and Work All Party Parliamentary Group (APPG) launched its first annual report on this very topic. The report analyses the barriers that a career break of more than six months can present to women returners and makes recommendations, both to employers and to the government, on how they can better support these women. The report also highlights the economic advantages of increasing the employment numbers of women with dependent children (many of whom take maternity leave and additional time off to care for their children). It states that an increase of five per cent could generate around £750 million in increased tax revenue and decreased benefit spending.

  1. The recommendations made by the APPG include:
    Equalising Statutory Maternity Pay (SMP) and Statutory Shared Parental Leave Pay so that couples are not penalised financially for taking Shared Parental Leave (SPL), which would therefore, hopefully, encourage take up of SPL.
  2. Bringing Maternity Allowance in line with SMP to ensure that self-employed women are not disadvantaged.
  3. That workforces with more than 250 employees should:
    1. have a carers policy detailing organisational support available for those with caring responsibilities;
    2. consider having a return to work policy; and
    3. consider having a returner programme to offer training, guidance and advice to returners.
  4. That employers should promote best practice through a flexible working Kitemark scheme with official accreditation and assessment.
  5. The introduction of penalties for employers who limit flexible working unnecessarily.
  6. That secondary schools and sixth forms should ensure information about self-employment and entrepreneurships is on the curriculum.

At this stage the recommendations are just that – recommendations – and it is unclear whether the government or employers will act on any of them. However, clearly there is an increasing and ongoing dialogue regarding recognising the value of women in the workforce and recognising that career breaks are valuable. As Flick Drummond MP said at the APPG launch, “if we want to be a happier and more successful country, we must appreciate that some people take time out of the workplace for either caring responsibilities or to pursue other interests”.

The full APPG report can be found here.

Women returners

Insight: UK Employment Law Round-up – November 2016

Employment Round Up THUMBNAIL In this issue we look at a recent Court of Appeal decision focusing on sexual orientation protection following a refusal to bake a cake decorated with a gay rights message. We also look at the rights of breastfeeding mothers at work, and Asda’s equal pay claim case, which may lead to further claims against Asda. We consider Tribunal decisions deciding employment status and rest break rights. We review the importance of having clear guidelines on job descriptions, and proposals to provide an entitlement to bereavement leave. Finally, we give an update on changes to the Immigration Rules.

Read the full newsletter here.

Insight: UK Employment Law Round-up – November 2016

It’s November – therefore we can now talk about Christmas!

Bramble Foods Ltd (the Company) generates a third of its total annual turnover in the eight weeks from mid-September onwards, in the lead-up to Christmas. As this is its busiest period, its employees are expected to work additional hours. Their contracts include a clause that requires them to “work such further hours as may be reasonably necessary to fulfil [their] duties or the needs of the business”. In 2014, the Company formalised its overtime arrangements by asking its employees to select between four to eight shifts, lasting four hours, on Saturday mornings in September and October when the Company would be producing its gift packs and hampers ready for Christmas. The Company adopted the same arrangement the following year. However, Mrs Edwards refused to sign up to the additional shifts, despite all of her colleagues doing so. Following a number of informal discussions, the Company dismissed Mrs Edwards. Its primary concern was that her colleagues would revoke their agreement to work overtime if the Company was seen to excuse Mrs Edwards. Mrs Edwards brought a claim for unfair dismissal as a result.

Whilst it accepted that there were minor flaws in the Company’s process, the Tribunal held that “dismissal was inarguably within the range of reasonable responses” as Mrs Edwards’ excuse that she spends Saturday mornings with her husband was not a legitimate one. The Tribunal considered that her refusal to work the overtime as requested had the potential to disrupt the whole business.

Many employers will be expected to meet tighter deadlines under a greater workload in the lead-up to Christmas. While this is only a first instance decision (and therefore not binding on other tribunals), it is helpful in highlighting what amounts to a reasonable request with regards to overtime. Of course, employers cannot expect their employees to agree to work overtime where they are contracted to work fixed hours and there is no clause (as above) which requires them to work more hours to meet the demands of the business. To avoid facing the same issues as in this case and to mitigate any risk of being short-staffed this Christmas, follow our top tips below:

  • Request that employees sign up to overtime as far in advance as possible – this will allow employees to plan around extended working hours as necessary;
  • Offer employees an incentive to sign up to the extra hours – for example, increased pay for any overtime worked, or a free breakfast or dinner if the employee is working particularly unsociable hours;
  • Ensure employees are given adequate rest breaks throughout the working day – this is especially important where an employee is working overtime;
  • Where possible, try to schedule a day with reduced hours (or even better, a day off) for an employee who has worked overtime the previous day – this will ensure that the employee does not feel overworked and is more likely to sign up for more hours on another day;
  • Take account of employees’ religious beliefs – not all employees will celebrate Christmas and may not mind working Christmas Eve or Christmas Day where required. Conversely, employees who do celebrate Christmas for religious purposes should be given enough flexibility to take time off at this time. Equally, employees who observe other religions should be offered the same flexibility when requesting time off to celebrate their religious events throughout the year.
It’s November – therefore we can now talk about Christmas!

Backing the bump

In the wake of recent press coverage highlighting the vast discrepancy between how employers believe they are treating pregnant employees and how such employees feel that they are actually being treated, the Equality and Human Rights Commission has launched a national campaign to encourage knowledge sharing and best practice in relation to pregnancy and maternity workplace issues.

The “Working Forward” campaign, which is being spearheaded by leading companies such as Barclays, Ford, Royal Mail, BT Group and the Nationwide Building Society, is aimed at making workplaces “the best they can be for pregnant women and new mothers” although fathers, and hopefully employers, will also benefit from the initiative.

Employers are asked to sign up and pledge their support on a voluntary basis. The Equality and Human Rights Commission has identified four key areas that can make a real difference to the experiences of employers and employees alike. Employers are recommended to take action in as little as two of these areas as a starting point. The four areas are:

  1. Demonstrating leadership from the top down: emphasising the importance of awareness of gender diversity and equal opportunity policies at all levels of the business and engendering a culture which is based on such awareness so that it becomes engrained in every aspect of the business;
  2. Ensuring confident employees: who feel able to talk about pregnancy and maternity-related issues without fear of discrimination or detriment;
  3. Training and supporting line managers: so that they can offer the support necessary to all employees who have, are going to have or are considering their options in terms of childcare responsibilities; and
  4. Offering flexible working practices: we have already seen a change in, for example, the flexible working regime to provide more employees with access to such rights, along with the introduction of shared parental leave. However, the Working Forward campaign stresses the importance of building upon such legislative changes and ensuring that flexibility is encouraged in practice and that employers realise the benefits that can flow from more flexible and agile working.

Whilst action in only two of these areas is suggested at first, it seems that once action is taken in even just one of these areas, positive steps relevant to the remaining three areas will flow from this.

The campaign forms part of a broader recognition of the issues and possible discrimination facing pregnant women and new mothers and it seems that steps are, finally, being taken to address such inequality. For example, the House of Commons Justice Select Committee has also recommended a review of the three-month time limit for bringing a pregnancy-related discrimination claim. Whilst it is hard to determine at what point this additional protection should end, it is hoped that such an extension will provide further support for women in the workplace and, most importantly, reinforce the importance of equality for all, in all aspects of employment.

 

Backing the bump

“I want my job back!” – employment tribunal remedies

A remedy that is open to an employment tribunal to award if it upholds a complaint of unfair dismissal is reinstatement or re-engagement.

Reinstatement requires the employer to treat the employee as if they had never been dismissed. Re-engagement requires an employer to re-engage a claimant in employment that is comparable to the job from which an employee is dismissed, or in other suitable employment.

In considering whether to make an order for re-engagement, the tribunal must have regard to any wish expressed by the claimant and whether it is practicable for the employer.

Case: Lincolnshire County Council v. Lupton [2016]

In Lincolnshire County Council v. Lupton, the Council employed Miss Lupton as a support worker at a youth centre in Grantham. She worked on Tuesdays and Thursdays (8.30am to 3.15pm) and on Wednesdays (8.30am to 3.00pm).

Miss Lupton became a foster carer. The Council accepted her inability to work during school holidays or outside school hours through a combination of unpaid leave and time off in lieu. However, the Council later asked Miss Lupton to change her working hours. Miss Lupton refused and was dismissed. She succeeded in her unfair dismissal claim.

Miss Lupton sought either reinstatement or re-engagement. A tribunal found that reinstatement was not practicable because the working relationship between Miss Lupton and two of her former colleagues at the youth centre had irretrievably broken down. This made re-engagement at the youth centre impracticable also. However, the tribunal found the Council was one of the largest employers in the area and had many roles in schools that could satisfy a need for term-time only working.

On appeal by the Council, the EAT found that it was wrong to expect the Council to find a generally suitable place for Miss Lupton, irrespective of actual vacancies. Further, the tribunal had failed to identify with enough detail the nature of the employment in which Miss Lupton was to be re-engaged.

What to take away

This is a helpful decision for employers. While orders for reinstatement or re-engagement remain rare, where a claimant is seeking re-engagement the case helpfully highlights that the onus is on the claimant to identify potential roles and seek disclosure from the respondent. A claimant should also identify necessary changes, such as variation of working hours or other types of flexible working arrangements, so the respondent can attend a hearing prepared to deal with the possibility of any changes.

“I want my job back!” – employment tribunal remedies