March 2017
Introduction
In this newsletter we will look at:
- A recent flexible working dispute case
- The laptop travel ban
- The National Minimum Wage
- Employers problems regarding the u-turn on increasing self employed NI
Flexible worker – Discrimination after returning to work
Fidessa PLC v Lancaster (2017)
Ms Lancaster had been dismissed from the employ of Fidessa PLC by reason of redundancy. Ms Lancaster brought the following claims against her former employers:
1. Unfair dismissal
2. Direct and indirect sex discrimination
3. Harassment
4. Less favourable treatment as a part-time worker.
The back ground to the case was that during her maternity leave, Ms Lancaster had asked her employers for flexible working so that she could pick up her child. This meant that Ms Lancaster had to leave at 5pm. The parties agreed the flexible working hours.
Ms Lancaster’s worked in the Con-op team. Part of her work involved deleting connections that were no longer in use by the firm’s clients in the financial services sector. The deletions were best done in the evening. The firm’s flexibility was to allow Ms Lancaster to start the deletions at work. Ms Lancaster finished off the deletions at home after she had collected her child. Her employer stopped being flexible and decided that the work needed to be done at work from 5pm onwards. Thus having a serious impact on Ms Lancaster’ ability to collect her child.
The firm had to make staff redundant and this included the Con-op team. Ms Lancaster was made redundant and although there was another vacancy that she was encouraged to take on, Ms Lancaster refused to apply for the engineer post because the second job did not allow for career advancement in her opinion. It also required her to work after 5pm. Ms Lancaster was subsequently made redundant.
At the redundancy meeting Ms Lancaster was told when her line manager heard she was pregnant for a second time he said “oh f…k, she’s pregnant”. Dare I say not the type of language to use at work. In terms of potential damages such language can add to an organisations costs. Ms Lancaster issued proceedings.
It was held at first instance by the employment tribunal that:-
1. Ms Lancaster’s dismissal was unfair.
2. Ms Lancaster had been indirectly discriminated against on the grounds of her sex. Insisting that the Con-op team had to stay late to do the deletions was indirect discrimination against women who had children.
3. The employers had infringed Ms Lancaster’s rights as a part-time worker as they had reneged on the agreement that she could leave at 5pm in order to collect her child.
The employers appealed to the Employment Appeals Tribunal and lost. Her Honour Judge Eady allowed the appeal in relation to the claim that the employee had been directly discriminated against. However points 1 to 3 was upheld.
The significants of this recent case is that it highlights that although s18 of the Equality Act 2010 provides protection for pregnant mothers and those women on maternity leave during the protected period. The protected period starts when a woman notifies her employer of her pregnancy and ends when she returns to work. Once a woman returns to work, the sex discrimination legislation under the Equality Act, as well as the part-time workers legislation will provide protection and it is worth knowing.
Laptop ban
If you are travelling to a country where you will not be allowed to walk on to the plane with your laptop or ipad or any other electronic device; except mobile phones as it is my understanding that these are still allowed on the planes. However always check with your carrier.
Please check your travel insurance to ensure that your electronic goods are insured in the holdall. Some insurance will not provide cover, so you will need to buy additional cover.
National Minimum Wage
The National Minimum Wage (and National Living Wage) rates will increase from 1 April.
The National Minimum Wage is defined as the minimum wage per hour a worker is entitled to under the law.
National Living Wage was introduced by the government on 1 April 2016 and is defined as the living wage for all working people over the age of 25.
The new rates from
- £7.50 per hour - 25 years old and over
- £7.05 per hour - 21-24 years old
- £5.60 per hour - 18-20 years old
- £4.05 per hour - 16-17 years old
- £3.50 for apprentices under 19 or 19 or over who are in the first year of apprenticeship.
If an employer provides a worker with living accommodation, the maximum deduction from the National Minimum Wage or National Living Wage which can be made will be £6.40 per day.
Phillip Hammond’s NI U-turn may be a huge problem for some employers
In the recent budget, the Chancellor announced that he was going to increase National Insurance (NI) contributions to be paid by the self-employed by 2%. This would impact 2.5 million people. His aim was to raise £2bn. This aspect of the budget created mayhem as you know, there were a few bad headlines and tory backbenchers screaming Mr Hammond was in breach, it is alleged, of a manifesto promise not to raise taxes.
In order to avoid a backbencher’s revolt; after all we have Brexit to think about, the Chancellor Phillip Hammond did a complete u-turn and scrapped the NI increase to the delight of the self-employed.
The Chancellor must however raise funds to compensate for the loss of revenue because of the U-turn. The best way to deal with it surely is to go after those employers who use or exploit the false/ bogus self-employed. The staff are forced to be self-employed because this saves the employer money, holiday pay, sick pay etc. The industries that have a tendency to do this are the gig economy, construction industry, transport and private social care firms.
In 2015, the CAB suggested that there were approximately 460,000 bogus self-employed[i]
It would be interesting to see if what will happen next!
[i] https://www.citizensadvice.org.uk/about-us/how-citizens-advice-works/media/press-releases/bogus-self-employment-costing-millions-to-workers-and-government/