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Archive for September, 2011

Acas publishes guidance to help private and voluntary sector organisations identify and address the gender pay gap.

Public sector organisations are required to publish relevant gender equality data. This requirement does not presently extend to the private and voluntary sectors. However, the government is asking organisations to undertake voluntary gender equality analysis and reporting and has launched its ‘Think, Act and Report’ initiative to encourage such participation.

Employment relations body Acas has published guidance which explains how organisations can participate in the initiative and how they can tackle gender equality issues in the workplace if they are unsure how to proceed. The guidance is aimed at private sector and voluntary organisations employing around 150 people or more.

Acas suggests that organisations analyse their businesses by looking at:

  • The make-up of the whole workforce;
  • How men and women are represented at different levels by role;
  • How men and women are represented at different pay levels;
  • How men and women are represented in different occupational groups;
  • Promotion rates by gender;
  • The uptake of flexible working across the company;
  • Employees returning from maternity leave.

It then suggests that organisations analyse the amounts they pay their staff by looking at any gender pay gaps between their full time workers, part time workers and overall. It also suggests that organisations look at any differences between average basic pay and total average earnings of men and women by grade and job type, any differences between men and women starting salaries and reward components at different levels.

According to Acas figures women who work full time in the public sector are paid on average 10% less than men and in the private sector that figure rises to 19.8%. This is despite the fact that employers have been required to pay men and women equal pay for equal work since 1970. If these figures do not improve by voluntary means then compulsory measures are likely to be introduced at some point in the future.

Click here for the full guidance.

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The employee in this case was employed by two different NHS Trusts, in different jobs, working different hours. One of the jobs involved travelling whilst the other was based in a clinic.

The employee developed a chronic knee problem which resulted in her being signed off sick in relation to the job that required her to travel. However, she continued to work in the clinic based job since that job did not require her to be mobile.

When her employer, Imperial, found out that she was continuing to work in the clinic based job it dismissed her for gross misconduct on the basis that she had defrauded it by claiming sick pay. She appealed against the decision to dismiss and Imperial, realising that the decision to dismiss her for fraud was unsupportable, confirmed her dismissal on different grounds, namely that she should have informed them that she was capable of work that did not involve travelling so that they could have redeployed her.

Unfortunately, the EAT did not decide the interesting question of whether or not the appeal panel was entitled to dismiss her on entirely different grounds from the original decision to dismiss. However, it did find that there were no grounds on which the appeal panel could justify a dismissal because, in the circumstances, the decision to dismiss did not fall within the range of reasonable responses. Accordingly, the dismissal was found to be unfair.

Case reference: Miss A Perry v Imperial College Healthcare NHS Trust

Employers should always take legal advice before making a dismissal or taking action short of dismissal. Any decision to dismiss must be reasonable taking into account the relevant facts of the case.

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Employment relations body Acas has published what is believed to be the first guide to social media use in the workplace.

According to Acas figures almost six out of ten employees now use social media at work. It estimates that misuse of the internet and social media by employees costs the UK economy up to £14billion a year and reports that many employers are now having to deal with issues such as time theft, cyber bullying, defamation, freedom of speech and the invasion of privacy.

The guide is aimed at helping businesses, staff and trade unions handle employment issues relating to use of the internet, blogs and social media websites such as Facebook and Twitter.  Acas claims that it will save businesses ‘billions’.

In the guide Acas advises employers to:

•    draw up a policy on social networking;
•    treat ‘electronic behaviour’ in the same way as employers would treat ‘non-electronic behaviour’;
•    react reasonably to issues relating to social networking by asking ‘what is the likely impact on the organisation?’

The guide includes practical tips on managing the impact of social networking in the context of managing performance, recruitment, discipline and grievances, bullying, defamation, data protection and privacy. It also gives guidance as to how employers should go about developing a social networking policy and helpfully explains the legal issues relating to the use of social media from an employment perspective.

A full copy of the guide can be found here.

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Employers should urgently review their mileage policies following a recent ruling by the Upper Tribunal of the Tax and Chancery Chamber.

The company, in this case, employed a number of staff who were expected to use their cars for business purposes. The company’s policy was to pay motoring expenses of 40p per mile to employees who were expected to travel less than 2,500 business miles per year and a lesser amount per mile plus a fixed lump sum to those who travelled more extensively.

The question the Upper Tribunal had to decide was whether national insurance was payable in respect of the lump sum payments. It was common ground that payments based on the mileage rates did not attract NICs.

The Upper Tribunal said that there was nothing to stop the company from making lump sum payments to its employees in respect of motoring expenditure. However, it held that unless the payments were actually linked to mileage they could not be classed as ‘relevant motoring expenditure’ for the purpose of the Social Security (Contributions) Regulations 2001, as amended.

The payments were made at a fixed flat rate, dependent on an employee’s grade, and did not vary by reference to the miles actually travelled. For this reason they could not be classed as ‘relevant motoring expenses’. They were, therefore, subject to national insurance contributions.

Case reference: The Commissioners for Her Majesty’s Revenue and Customs v Cheshire Employer and Skills Development Ltd (formerly Total People Ltd)

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Employers are required to make ‘reasonable adjustments’ to prevent their disabled workers from being placed at a substantial disadvantage in comparison with persons who are not disabled. This may arise in the context of enabling a disabled person to remain in work or, as in this case, to facilitate a disabled employee’s eventual return to work after a period of long term sick leave.

The employee argued that the employer’s failure to have taken certain steps amounted to a failure to make reasonable adjustments and was therefore a breach of the employer’s duty. In this case the Employment Appeals Tribunal considered what amounts to a reasonable adjustment in the context of an employee who was disabled by virtue of her suffering from chronic fatigue syndrome.

The EAT said that adjustments that do not have the effect of alleviating a disabled person’s substantial disadvantage in comparison with persons who are not disabled do not amount to reasonable adjustments for the purposes of the law in this area. Accordingly the EAT held that the following did not amount to reasonable adjustments:

• the production by an employer of something that the employee could take to their GP to sign him or her off for some form of ‘light duties’ (even if such duties consisted of non-productive work) as a form of rehabilitation;

• the granting of permission for an employee to take a career break.

In giving its judgment, the EAT also said that consultations, trials and exploratory investigations do not amount to reasonable adjustments.

The EAT also had to decide whether the employee had a claim for constructive unfair dismissal. It decided that she did not. There had been no ‘last straw’ which had resulted in her resignation, the employer’s behaviour had not amounted to a serious breach of the terms of the contract of employment (the employer had not destroyed the relationship of trust and confidence) and there had been no failure on the part of the employer to make reasonable adjustments.

As to what amounts to a reasonable adjustment will depend upon the circumstances of a particular case. In a case concerning an employee who has been on long term sick leave reasonable adjustments may include allowing a phased return to work, changing their working hours or allowing them to work from home.

Case reference: Salford NHS Primary Care Trust v Mrs A F Smith

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This case concerned a temporary pub manager who was required, under the terms of her contract of employment, to reside and sleep at the premises.An earlier tribunal had found that she was required to sleep on the premises as a ‘minimum security or preventive measure’ and that once the pub closed no actual work was required. The tribunal had also found that she was not required to stay in every minute of the day and could pop out if she wished.

The Employment Appeals Tribunal had to decide whether the time she spent at the premises overnight had to be taken into account when deciding whether or not she had been paid the national minimum wage.

The EAT held that the tribunal, who had dismissed the claim, had been wrong to decide the case under the Working Time Regulations 1998 as those regulations have no application in the context of the national minimum wage. The issue, the EAT said, should have been determined exclusively by reference to the National Minimum Wage Regulations 1999. Having said that the EAT was satisfied that the tribunal had reached the right result even though it went about it the wrong way.

Accordingly the appeal was dismissed on the basis that time spent sleeping did not count as ‘work’ for the purposes of calculating an employee’s hourly rate as against their entitlements under the National Minimum Wage Regulations.

Case reference: Ms S Wray v JW Lees & Co (Brewers) Ltd

A worker who is sleeping on premises and ‘on call’ may well be working during that time for the purposes of the Working Time Regulations which has an impact on other statutory entitlements such as how holiday leave is accrued. However, hours spent on call do not count towards a national minimum wage claim unless the employee is actually awake and working.

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