UK: Employment E-Bulletin – May 2016

Last Updated: 15 December 2016
Article by Alison Gair and Robert Cherry

As always, April brought some changes with it. To remind you:

National Living Wage

The big one was the introduction of the National Living Wage (NLW) from 1 April 2016. It entitles workers aged 25 and over to a minimum wage of £7.20 per hour. That's 50p more than the existing National Minimum Wage (NMW), which will continue to apply to under-25s.

Take note of these rates. Strict penalties apply where employers haven't paid the amounts they should have. Expect a fine of 200% of the underpayment of the NLW or NMW (reduced if you pay up quickly), up to a maximum of £20,000 per worker. There's also the possibility of director disqualification.

No Class 1 NICS for apprentices...

... who are under the age of 25, on a statutory apprenticeship and who are earning less than £827 per week (£43,000 a year). From 6 April, employer's National Insurance contributions are not payable in respect of those apprentices. It's part of the Government's push to create more opportunities for people to access high quality apprenticeships, and to support youth employment.

Rates rise

From 6 April:

  • a week's pay, used to calculate unfair dismissal basic awards and statutory redundancy payments, increased from £475 to £479
  • the unfair dismissal maximum award also increased to £78,962 (previously £78,335).

But there was no change to maternity, paternity, adoption, shared parental leave and sick pay limits.

Penalties for non-payment

If you don't pay up following a tribunal award against you, you could find yourself having to pay the Government another 50% of the unpaid amount, up to a maximum of £5,000. The same applies to non-payment of settlement sums agreed via Acas.

Modern Slavery

From the end of March, big companies – those with an annual turnover of £36 million or more – have been required to file information on modern slavery.

They'll have to publish an annual statement that sets out what they've done in their last financial year to make sure that slavery and human trafficking isn't happening (a) in any part of their business, and (b) in their supply chains.

It's this second category that could affect smaller businesses. If you're not in the £36m category, you could still be a player in those businesses' supply chains – or, indeed, in their suppliers' supply chains. You should keep information about what you're doing to make sure that slavery and trafficking isn't happening in your organisation. Those you supply will need this in order to comply with their legal obligations to provide modern slavery statements. And they'll probably thank you for being on the ball.

Some employers will see this as a formality, but it's something that needs to be taken very seriously. And remember that it's not just the slavery issue itself that you'll need to think about. You'll be handling and passing on information – data – and so will need to make sure you are Data Protection Act compliant. Take time now to put some plans and systems in place and get to grips with exactly what the new rules will mean for you.

Letter to sick employee led to trouble

Private Medicine Intermediaries v Hodkinson

Dealing with employees who are on sick leave presents a host of potential pitfalls for employers. In this case, getting things wrong resulted in constructive dismissal.

Ms Hodkinson was disabled; she had thyroid dysfunction and cardiac arrhythmia. She went on sick leave with what she said was depression and anxiety caused by bullying and intimidation by managers in the business.

While she was off work, the employer wrote to her. The letter proposed a meeting. It also set out some areas of concern that the employer wanted to discuss with her. These were not serious or pressing issues.

Ms Hodkinson resigned, claiming that the employer had breached the implied term of trust and confidence and that she considered herself to have been unfairly constructively dismissed. She also claimed, alongside some other disability-related claims, that the correspondence amounted to harassment.

The Employment Appeal Tribunal (EAT) upheld the tribunal's constructive dismissal finding. The employee was ill, and the letter did not need to be sent. But this did not amount to harassment. It had not been established that the employer's action in sending the letter related to her disability, or that it created an intimidating, hostile, degrading, humiliating or offensive environment for her.

This shouldn't stop you from communicating with employees who are on sick leave. In fact, it's important to stay in touch. But make sure that you judge each communication carefully. If something can wait, hold off until the employee is better.

Exaggerated injury, fair dismissal

Metroline West Ltd v Ajaj

The Employment Appeal Tribunal (EAT) has made it clear that a worker who dishonestly claims to be unfit for work, breaches the trust and confidence that an employee and employer must share.

Mr Ajaj, a bus driver, said he slipped and fell at work, injuring himself to the extent that he was unable to do his job. Surveillance evidence showed that he was more mobile than he said he was. A gross misconduct dismissal followed.

Unfair dismissal, held the tribunal. Even though Mr Ajaj had exaggerated his inability to walk, there was no evidence that he had exaggerated his inability to do his job. But the Employment Appeal Tribunal (EAT) overturned that decision. Whether or not someone is fit to do their job goes to capability, not conduct. Mr Ajaj had exaggerated the effects of his injury. That was culpable and misleading. Dismissal for gross misconduct was the obvious sanction, and certainly a reasonable one. So Metroline's decision to dismiss Mr Ajaj was fair.

Monitoring employees' messages

Barbulescu v Romania

Mr Barbulescu was dismissed for breaching his employer's rules on the personal use of the internet at work. On his work-related Yahoo account were found to be messages to his brother and fiancée about his health and sex life.

Was it right for the employer to have accessed those messages and for them to have been used in the disciplinary and subsequent court proceedings? Mr Barbulescu argued that there had been a breach of his right to respect for private life and correspondence.

The case went to the European Court of Human Rights which found against Mr Barbulescu. Although workers have a reasonable expectation of privacy at work, this isn't absolute. The employer had a total ban on the private use of work equipment, and this was an important fact. It had accessed Mr Barbulescu's Yahoo account (set up for work purposes) believing that it contained business-related messages only, and for the purpose of checking that Mr Barbulescu was fulfilling his work duties. This was a proportionate interference with his rights. The employer hadn't accessed other data and documents stored on the computer, and the monitoring was therefore limited in scope and was proportionate.

So, far from living up to some of the headlines it generated, this case really came down to basic rules about monitoring and data protection. Yes, employers are entitled to check that their employees are fulfilling their working duties, but only if done properly and it's proportionate. Making clear what your position is on private communications at work is the first step. Then it's about having a clear monitoring policy that's communicated and carried through.

Employer liability extended

Mohamud v Morrisons Supermarket

Cox v Ministry of Justice

Two important Supreme Court cases have been decided on the issue of vicarious liability. The effect is that employers may now be liable for the acts of employees (and others) in more situations than before.

In the Mohamud case, a claim was brought against Morrisons by a customer who had been assaulted by one of its employees on the forecourt of a Morrisons' petrol station.

The employer was held to be liable for the actions. There was a close enough connection between the employee's actions and their employment. It was the employee's job to attend to customers, and Morrisons was liable for his abuse of his position.

Cox v Ministry of Justice put a different slant on liability again. A prisoner, working in the prison kitchen, injured a catering manager by dropping a heavy bag of rice on her. The Ministry of Justice was liable, even though there was no contract of employment between it and the inmate. It was significant that the prisoner was an integral part of the Ministry of Justice's business. Also that he was placed by the prison service in a position where there was a risk that he might commit a variety of negligent acts.

The key thing for employers to take from the widened scope of vicarious liability is to make sure that you take all reasonable steps to stop incidents happening. Policies and training are a useful indicator of your commitment to this.

Dyslexia at work

Two stories with dyslexia as their focus; two completely different angles.

The first was about a dyslexic member of staff at Starbucks who had mistakenly entered the wrong information into a duty roster. She was accused of falsifying the documents, was demoted and told to retrain.

She won her disability discrimination case.

According to reports, Starbucks had not seemed to properly understand equality issues, and it should have made reasonable adjustments to take account of the dyslexia.

Also in the news was an advert for a job that was open only to people with dyslexia. "We are simply looking for the best innovative thinkers and they are usually dyslexics", the marketing firm's founder is reported to have said.

Controversial, maybe, but favouring someone who has a disability isn't prohibited by the Equality Act. And the ad is an interesting take on dyslexia; one that really shouts about its positive aspects.

Employers should take note and make sure that they can recognise the characteristics. According to the British Dyslexia Association, about one in 10 people have dyslexia, and not all have been formally diagnosed. It can mean that dyslexic employees are not properly understood, not treated fairly, and their strengths are not fully played to at work.

Fine for bribery

A PLC is reported to have become the first UK company to be convicted for failing to prevent bribery. The penalty? The business was ordered to pay £2.25m.

It goes to show that the Bribery Act is alive and kicking. If you haven't already got in place good policies and procedures designed to prevent breaches, now's the time. And make sure that they extend to all parts of your business, including those that are based outside the UK.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions