UK: September 2011 - Employment Law Update

Last Updated: 28 December 2011
Article by Pitmans LLP

1. Dress codes

The law relating to dress codes in the context of sex discrimination is well established in general terms. Where staff are required to wear uniforms it is permissible for an employer to insist that male and female staff wear different uniforms.

There have been recent reports in the news that a sales assistant has been effectively forced to leave her job because she refused to abide by a dress code that required all female shop assistants to wear make-up. It is not yet known whether she will bring a tribunal claim. If she does, the decision of the tribunal is, however, likely to be of interest to many, particularly employers in the retail and hospitality sectors.

What should employers do?

Employers should ensure that when setting dress codes they take into account sex discrimination law. Employers should also bear in mind that other forms of discrimination may arise, for example on grounds of religion, race or transgender. Discrimination may also arise by reason of age where an employee is required to dress inappropriately or by reason of disability.

2. Employed or Self-Employed?

The Supreme Court has held that when deciding whether a person is employed or self-employed, the terms of any written agreement can be disregarded if they do not reflect what the parties have really agreed.

What does this mean?

Employers who try to circumvent employment law will not be able to rely on written contracts which state that their workers are self-employed if such contracts do not reflect the reality of the situation. This is the case even if Revenue and Customs have already agreed that such workers are 'self-employed'.

What should employers do?

There are some basic questions, the answers to which will 'indicate' whether or not a worker is employed or self-employed but this method is not conclusive. Therefore, businesses who are in doubt as to the status of their workers should take legal advice.

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3. Preventing harassment in the workplace

The Employment Appeals Tribunal has held that an employer who seeks to rely on the defence that it took reasonable steps to prevent the sexual harassment of one of its employees by another employee will only succeed if it can demonstrate that it took reasonable steps to prevent such conduct prior to the incident complained of.

What should employers do?

Employers should take reasonable steps to prevent harassment in the workplace. This may be by ensuring that clear written policies relating to sexual discrimination and harassment are in place, by providing staff with training in these areas and by promoting a culture of compliance with such policies.

Simply taking steps after the event to prevent the recurrence of harassment is not sufficient.

4. Equal pay

The Court of Appeal has held that in a claim for equal pay an employee is entitled to receive equal terms.

What does this mean?

When deciding an equal pay claim the Employment Tribunal will compare each individual term of the employment contracts which relates to remuneration. The fact that a female employee may be paid more than a male comparator overall, when all elements are totalled, is not relevant.

What should employers do?

Employers should ensure that female and male employees receive comparable pay in terms of basic and overtime pay unless there is a genuine material reason for a difference.

5. Amendments to the Agency Workers Regulations

The Agency Workers Regulations 2010, which are due to come into force on 1 October, have been amended by the Agency Workers (Amendment) Regulations 2011.

The amendments correct a number of drafting errors in the original regulations by widening the definition of an 'agency worker'; changing the circumstances in which an agency worker will not be entitled to be paid the same as other staff recruited directly by a hirer; and by changing the circumstances in which an agency will be liable for any failure on the part of a hirer to comply with their obligation to provide the same basic working and employment conditions to agency workers as they do to the staff they recruit directly.

6. Termination date in the case of summary dismissal during a notice period

The Employment Appeals Tribunal has held that where an employee is summarily dismissed (with immediate effect) during their notice period, the effective date of termination is brought forward from the date on which the notice is due to expire to the date on which the employee is summarily dismissed.

What does this mean?

Summarily dismissing an employee who is serving a notice period will in some cases prevent an employee from accruing one year's service, which is a prerequisite for an unfair dismissal claim. However, summary dismissal in such circumstances may be viewed as victimisation and thereby give rise to a claim of 'automatic' unfair dismissal for which no minimum length of service is required.

What should employers do?

Employers should always take specific legal advice before dismissing an employee.

7. The National Minimum Wage

The Employment Appeals Tribunal has held that when an employee is required to sleep on their employer's premises, the time spent sleeping does not count as 'work' for the purpose of the National Minimum Wage Act 1998.

8. Religious discrimination

High profile cases relating to the religious discrimination of Christian workers are heading towards the European Court of Human Rights. The cases relate to i) the wearing of a cross on a necklace while at work, ii) the insistence that a Christian employee officiate at civil partnerships notwithstanding her wishing not to do so on religious grounds, and iii) the dismissal of a Christian relationship counsellor for refusing, on religious grounds, to provide help and counselling to same-sex couples.

What should employers do?

Rulings already made by the UK and European courts in relation to religious discrimination of Christians have created a body of contradictory and confusing case law. The Equality & Human Rights Commission (EHRC) submits a report in reference to these cases this month, but until the law in this area is clarified there is little that employers can do other than 'play safe' and seek legal advice before making decisions that may upset staff with religious beliefs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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