Archive for August, 2011

Sundays may no longer hold the special significance that they once held but there are still a number of things that employers need to bear in mind when employing staff to work on Sundays. Here we look at some of the more common questions arising out of Sunday working.

Can I force my staff to work on Sundays?

Employees will be obliged to work on Sundays if their contract of employment or written statement of terms and conditions say that they must work on Sundays or would have to work on Sundays if they are asked to.

In the absence of any contractual obligation, employees cannot be forced to work on a Sunday unless their contract is varied. However, any variation would require the employee’s consent.

However, whatever your arrangements, you must ensure that you observe the Working Time Regulations 1998 for workers’ statutory rest periods.

Do I have to pay my staff an enhanced rate of pay for working on a Sunday?

Employees who work on Sundays do not have an automatic right to receive an enhanced rate of pay. However, if their contract of employment provides for a higher rate to be paid for Sunday work then an employer is obliged to pay that rate.

Do I have to take into account the religious beliefs of my Christian workforce?

Christian staff may have strong feelings about working on Sundays. All employees and workers (including temporary agency workers, freelance workers and consultants) have the right not to be discriminated against, harassed or victimised because of their religion or belief.

For this reason employers should try to accommodate any requests by Christian staff not to work on Sundays, for example by changing their shift patterns. Employers should also be careful not to put pressure on Christian staff to work on Sundays and should ensure that Christian staff who refuse to work on Sundays are not placed at a disadvantage, for example, when it comes to promotions or decisions relating to redundancy. The right not to be discriminated against on grounds of religion or belief also protects job applicants from receiving less favourable treatment.

In some circumstances an employer may be able to justify discrimination as long as there are objective grounds. For example, an employer may be justified in discriminating against Christians if Sunday working is essential to a role, although employers should also bear in mind that not all Christians will object to Sunday working and, therefore, a blanket ban on Christian applicants is likely to be viewed as being discriminatory.

What about shop and betting workers?

There are special rules relating to Sunday working for shop and betting workers. Most shop and betting workers have the option not to work on Sundays. ‘Protected’ shop and betting workers, however, have additional protection.

A ‘protected’ worker is one who:

has been continuously employed since 25 August 1994 as a shop worker or since 2 January 1995 as a betting worker and when his employment commenced was not required to work only on Sundays; or
is not required, under his contract of employment, to work on Sundays; and
has not consented (by signing an ‘opting-in notice’) to working on a Sunday.

Employees in this category who would otherwise be required, by their contracts of employment, to work on Sundays can opt-out of Sunday working as long as they are not employed solely to work on Sundays. An employee can opt-out by providing his employer with a signed ‘opting-out notice’ and this can be done at any time. An employee who has given an ‘opting-out’ notice is treated as having opted-out 3 months after the notice was given.

Employees who are ‘protected’ and those who have opted-out cannot be made to work on Sundays. They have the right not to be discriminated against if they refuse to work on Sundays and if they are dismissed or selected for redundancy for refusing to work on Sundays their dismissal is treated as being automatically unfair.

Employers who employ shop or betting staff to work on Sundays must, within 2 months of the commencement of the employment, provide the employee with an ‘explanatory statement’ setting out their rights in relation to Sunday working including their right to opt out, unless the employee has already given an ‘opting-out notice’.

The wording which is required for the ‘explanatory statement’ is set out in S.42 of the Employment Rights Act 1996. If an employer fails to provide a valid ‘explanatory statement’ and the worker subsequently gives an ‘opting-out notice’ the employee will be treated as having opted out 1 month after the notice was given rather than 3 months after it was given.

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Following the dismissal of former Chief Executive, John Watkinson, an employment tribunal ruled that he had been sacked because he planned to act as a ‘whistleblower’. This was after he had voiced concerns about the legality of plans to move some cancer services out of Cornwall to Devon.

The trust accepted that he had been unfairly dismissed but appealed the ‘whistleblower’ element of the judgment.

The Employment Appeals Tribunal dismissed their appeal giving the following reasons for their decision:

•    The disclosure made by Mr Watkinson of advice which indicated that the Trust would be breaking the law if it did not undertake a public consultation on proposed changes to services affecting certain cancer patients was a ‘protected disclosure’ for the purposes of the Employment Rights Act 1996;

•    There was clear evidence from which the Tribunal could infer that the South West Strategic Health Authority, who was against holding a public consultation, applied pressure on the Trust, whom it supervised, to dismiss Mr Watkinson for making the disclosure;

•    The Tribunal had reached decisions which were open to them and had given full and adequate reasons for their decisions.

Case reference: Royal Cornwall Hospitals NHS Trust v Mr John Watkinson

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The Agency Workers Regulations 2010 which are due to come into force on 1 October 2011, have been amended. The amendments, which are contained in the Agency Workers (Amendment) Regulations 2011 and come into force on 1 September 2011, have the following effects.

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

The 2010 Regulations give temporary agency workers certain rights including rights in relation to basic working and employment conditions.

The 2011 Regulations correct a number of drafting errors contained in the 2010 Regulations by:

• changing the definition of an ‘agency worker’. The 2010 Regulations only covered workers who have a contract of employment with an agency or another type of contract to perform work and services personally for the agency. The 2011 Regulations extend the definition of agency worker so as to include workers who have a contract with the agency to perform work or services personally. The change, therefore, means that the worker will not need to be working for the agency itself;

• 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. As a general rule, when the 2010 Regulations come into force agency workers will be entitled to be paid the same as other workers recruited directly by a hirer. There are certain exceptions to this general rule, which will apply to agency workers who have a permanent contract of employment with their agency and the 2011 Regulations contain a minor change to this.

• changing the circumstances in which an agency will be liable for any failure on the part of a hirer to comply with their requirement to provide the same basic working and employment conditions to agency workers as they do to the staff they recruit directly. The 2010 Regulations created a defence, which will be available to agencies in certain circumstances, and the 2011 Regulations has changed the circumstances in which the defence will be available. The change means than an agency will be able to avoid liability for breach of the Regulations by a hirer if it can show that it has taken reasonable steps to obtain information about the hirer’s terms and conditions.

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

In this case claims were brought, for equal pay, by three female healthcare assistants and two receptionists. Their basic hourly rates of pay were higher than their male comparators. However, the rates of pay they were entitled to receive for working weekends, nights and during unsocial hours were lower than their male comparators. Overall four of the female employees were paid more then their male comparators.

The Court of Appeal said that once it had been established that there were terms in the women’s and the men’s contracts that were susceptible to comparison and that each of the terms were capable of being compared, then the earlier Employment Tribunal should have compared those terms. The Court of Appeal stressed that equal pay is focused on each distinctive term relating to remuneration and said that the Employment Tribunal was wrong to take a global view of the whole of a contract and the totality of pay and benefits.

The claims have been remitted to the Employment Tribunal whose job it will now be to decide the appropriateness of the comparators and whether the employer has a defence to the claims on the basis of there being a genuine material reason for the difference in pay in relation to the specific terms.

Case reference: St Helens & Knowsley Hospitals NHS Trust v Brownbill & Others


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Employers are expected to take reasonable steps to prevent harassment in the workplace. If they fail to take such steps they may be held to be vicariously liable for the actions of their employees and may be ordered to pay compensation.

The EAT 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. Simply taking steps after the event to prevent its recurrence is not sufficient.

This case concerned an employee, Miss Fox, who was subjected to sexual harassment by a colleague, Mr Ellis. Following a complaint to her employer, Mr Ellis was called to a disciplinary hearing and was subsequently suspended while investigations took place. After investigating the matter the employer concluded that there was insufficient evidence to discipline or dismiss Mr Ellis for sexual harassment.

An earlier Employment Tribunal had concluded that Mr Ellis had sexually harassed Miss Fox. However, it held that the employer had a defence to her claim for sexual harassment on the basis that as soon as Mr Ellis’ misconduct was reported it took all reasonable practical steps to prevent such behaviour recurring. The step taken was the suspension of Mr Ellis. The EAT, however, said that such a defence can only be made out if reasonable steps were taken before the act complained of.

Case reference: Miss C Fox v Ocean City Recruitment Ltd

The EAT, when giving judgment in this case, rather unhelpfully did not provide any guidance as to what steps the employer should have taken to prevent sexual harassment taking place.  It is, however, likely that an employer who can demonstrate that it has clear written policies relating to sexual discrimination and harassment, who provides its staff with training in these areas and who can demonstrate a culture of complying with such policies will be seen to have taken reasonable steps to prevent sexual harassment in their workplace.

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This case concerned the legal status of a number of individuals who worked as car valeters for the same company. Each signed similar contracts, which contained clear statements to the effect that they were self-employed. They each paid tax on that basis and the Inland Revenue had previously agreed that they were self-employed.

The Supreme Court had to decide whether the individuals concerned were ‘workers’ (i.e. employees) for the purpose of the National Minimum Wage Regulations and the Working Time Regulations. If they were, they would be entitled to receive holiday pay and to be paid an amount at least equal to the national minimum wage.

In order to qualify as ‘workers’ they had to fulfil three conditions. These were as follows:

•    that they had agreed that, in return for being paid, they would provide their own work and skill in performing a service for the company;
•    that they had, expressly or impliedly, agreed that in performing that service they would be subject to a sufficient degree of control so as to make the company their ‘master’;
•    that the other provisions contained in their contracts were consistent with it being a relationship of employee and employer.

On the face of the written contracts alone the individuals could not be said to be workers. Their contracts contained very clear statements to the effect that they were self-employed. However, an earlier Employment Tribunal had found that the contractual terms did not reflect what was actually agreed between the parties. On that basis the Supreme Court said that the Employment Tribunal had been entitled to disregard the terms of the written documents. Accordingly they succeeded in their claims for unpaid wages and holiday pay.

Case reference: Autoclenz Ltd v Belcher & Others

This is not the first time a court has been asked to decide whether someone is an employee or self-employed. However, the case raises an important legal point in that when deciding whether a person is an employee or self-employed, the terms of any written agreement can be disregarded if they do not reflect the reality of the situation. What matters is not what is written down, but what the parties have really agreed.

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