Category Archives: Insight Article

This is likely to open a floodgate of litigation. A recent preliminary hearing in the Employment Tribunal has confirmed that an ex-employee should be granted an extension of time to pursue her out-of-date unfair dismissal claim, on the basis that the original action was dropped due to the fees.

In giving the go-ahead for an extension in the case of Dhami v Tesco Stores Ltd, the claimant could show they had lodged the original claim within the three-month time limit and the fees were an important reason for not proceeding. It is likely that many more out-of-date claims will be put forward, and, as a result, employers may find themselves firefighting situations that were considered closed.

The Supreme Court ruling in July in R (on the application of UNISON) v Lord Chancellor put an end to the requirement for a fee to be paid on submitting a claim, known as the issue fee, and another a few weeks before the hearing. Introduced in 2013, the cost was more than £1,000 for complex claims, and the number of tribunal claims dropped by two-thirds as a result.

The public service union UNISON brought the case, arguing that the fees undermined the fundamental principle of access to justice for all and that it was discriminatory as women generally earn less and so were likely to find it harder to pay. The Supreme Court agreed, saying it was unlawful under both domestic and EU law, and the fees were abolished with immediate effect, and payments made under the scheme were to be refunded.

Commentators and employer groups were quick to predict a steep increase in claims back to previous levels, arguing that with no financial risk involved, employees will be more likely to make a claim, whether legitimate or bogus.

Our employment partner, Karen Cole said:

“For now, employers who focus on best practice and knowing their responsibilities will be better placed to manage any such claims. This is the time to identify any potential claims that may be made, and having reviewed the circumstances, take steps to avoid such things recurring. Demonstrating a positive attitude to any Employment Tribunal will stand a business in good stead.”

She added:

“It’s more important than ever to have a positive working environment, as well as ensuring compliance with the many laws applying in the workplace.

It’s not only good for business, but should minimise the risk of claims. If you do find yourself facing a claim, then think about maximising mediation efforts, and using ACAS Early Conciliation as an opportunity to resolve things swiftly. Equally, if having investigated the claim and having tried to resolve the matter by conciliation, you believe that the employee is just trying it on because they have nothing to lose, it may be worth being bullish and going for costs, a deposit order or applying to strike out proceedings. Each case will turn on the facts.”

Speak to employment partner Karen Cole to find out more about Employment Tribunal claim fees.

Note: This article is not legal advice. It provides information of general interest about current legal issues.

Understanding of mental health issues is high on the agenda, thanks to the involvement of the younger members of the Royal family in the Heads Together awareness campaign earlier this year which saw the #oktosay hashtag trending.

Their activity gave an extra boost to Mental Health Awareness Week in June, but now the annual campaign is over, employers have an important role to play in making sure the message isn’t forgotten. By having strategies that focus on mental health as part of employee wellbeing, businesses can help drive individual support, as well as improve the bottom line. They may also avoid potential grievances or even litigation from staff.

Estimates by ACAS suggest that around £30bn each year is lost through lost production, recruitment and absence arising through mental health issues and the Centre for Mental Health estimates that employers should be able to cut these costs by around a third if they implement better management practices to support mental health at work.

Recent research by the Mental Health Foundation, the charity behind Mental Health Awareness Week, found that nearly two-thirds of people in Britain have experienced a mental health problem. The figure is higher for women than for men and for young adults between 18 and 34 and people living alone. It’s a big issue, but often isn’t discussed and campaigners are keen to get everyone talking more, to understand that mental health problems can have a serious impact on an individual, even though they may not be visible in the same way as a physical condition.

Our employment lawyer, Karen Cole explained:

“It’s the cloak of invisibility that may mean things are ignored or potentially mishandled. There is often a reluctance to raise the issue, as people find it hard to talk about mental health. They may feel there is a stigma, or that it could have an impact on their longer-term prospects, if they feel they may be seen as not strong enough.

Employers can help by putting support structures in place, with an open attitude to communication, which can drive better understanding as well as helping to address their legal obligations.”

In some cases, mental health issues may be classed as a disability under the Equality Act 2010, which makes it unlawful for an employer to treat a person with a disability less favourably because of their disability, without a justifiable reason. Mental health issues may be considered a disability if they have ‘a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.’

Karen added:

“Where someone suffers from severe depression, for example, that is not enough on its own to meet the definition of ‘disability’ under the Equality Act; the circumstances would need to meet the requirement of having a substantial and long-term impact on the individual’s abilities on an everyday basis. But, whatever the extent of an individual’s mental health issues, all are equally in need of responsible support and protection from unfair or discriminatory treatment. There is a responsibility on the employer to tackle mental as well as physical health in the workplace and hard-wire it into all aspects of their recruitment and employment policies.”

Tips for employers include:

• Have a policy that specifically addresses mental health issues and encourages everyone to feel able to talk about the subject, with a clear route to raise any problems. This should be well published across the business, as well as being included in the staff handbook.
• Encourage everyone to understand the issue, through disability and equality training, and equip line managers to identify potential mental health issues.
• Establish support networks for employees to access, whether HR-led internal support or through external employee assistance programmes providing access to counselling, medical insurance or occupational health.

Lastly, Karen added:

“Whether recruiting, or with an existing employee, it is important to focus on the ability of an individual to do the job and, if they have any physical or mental impairments, to consider whether reasonable adjustments could be made to enable them to fulfil the role.”

Useful links

• ACAS Mental Health Advice & Guidance
• The NHS’s Mindful Employer Initiative
• The Mental Health Foundation

Call employment solicitor Karen Cole to discuss Mental Health Awareness in your workplace.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

First, the Queen conducted the State Opening of Parliament in a hat and coat instead of the traditional gown and crown. Then the Speaker of the House declared jackets and ties an unnecessary convention for male MPs. And now the Synod, the Church of England’s ruling body, has agreed to a change in canon law that will see clergy ditching their traditional robes when taking communion or conducting weddings, funerals or baptisms.

But there are still situations where rigorous dress codes are maintained, notably the ‘almost entirely white’ clothing rule that is imposed strictly by the All England Club during the annual Wimbledon Grand Slam tennis tournament. Umpires have forced players to change and resort to borrowing kit when told to remove offending colours or flashes that have broken the rule. And while many big names have tried to resist the ruling, it remains carefully guarded by the club, despite dating from the 1800s.

When it comes to dress codes in a workplace setting, there are three main areas where employers have obligations:

1. they must comply with equality legislation on gender, religion and disability;
2. any requirements must take account of health & safety issues; and
3. where employees are required to purchase specific clothing, this must be reflected in National Minimum Wage calculations.

Employment lawyer, Karen Cole, outlines below the main issues employers need to consider when drawing up and implementing dress code policies.

The design considerations for dress codes

Gender discrimination

The treatment of temporary receptionist Nicola Thorp, who was sent home without pay for failing to comply with a requirement to wear heeled shoes, won much coverage and led to the matter being debated in Parliament, where MPs highlighted the requirements of employers under the Equality Act 2010.

The Act makes it illegal to discriminate against someone with a protected characteristic, whether directly, indirectly or by harassing them. In the context of dress codes, the protected characteristics of gender, religion, and disability are likely to be relevant. So, if a man is not required to wear high heels, a requirement for women to do so may be discriminatory on sexual equality grounds.

This does not mean that detailed dress codes may not be different for men and women, but they must be broadly similar in their intended effect, and sanctions for breach should be the same.

In one case, a trainee police constable alleged that he was discriminated against because of his shoulder-length hair, which he was told to cut or face disciplinary action. He argued that a woman with hair neatly tied in a bun, as his was, would not have received the same order. The Employment Appeal Tribunal rejected the argument, saying that such differences in treatment do not necessarily amount to more favourable treatment of one sex compared with the other.

Religious discrimination

The topic of religious discrimination is complex, and two recent cases have added to the confusion among employers.

Nadia Eweida, a practising Coptic Christian, lost her job with British Airways after refusing to keep her crucifix necklace out of sight when wearing her uniform. In a landmark judgment, the European Court of Human Rights (ECHR) said that Ms Eweida’s right to manifest her religion under article 9 of the European Convention of Human Rights had been breached. The ECHR said that a fair balance had not been struck between her desire to manifest and communicate her religious belief and, on the other side, her employer’s wish to project a certain corporate image without religious connotations.

But in a recent joint case over the wearing of Islamic headscarves, the European Court of Justice (ECJ) decided that employers could have a policy of religious neutrality in their dress codes, ruling that prohibiting the wearing of a headscarf was not direct discrimination. However, it could amount to indirect discrimination. The employer would need to be able to show that if there was a greater negative effect on one group of employees, there must be a fair reason for doing so and that it was appropriate and necessary in all the circumstances. In this case, the ECJ highlighted the difference between employees who interact with customers and those who do not.

When handling religious views in the workplace, employers must balance the requirements and duties required by the company and the employee’s right to practice and express their religion.

Health and Safety

Health and safety law requires employers to conduct a workplace health and safety risk assessment for all workers, with a continuing obligation to provide a safe system of work, and no one is surprised that they are required to wear a hard hat and hi-vis vest when visiting a construction site.

But the risks associated with many aspects of dress code may be overlooked in such assessments, despite well-documented outcomes. For example, high heels are known to lead to joint pain, back problems, and bunions and may potentially contribute to sprains and falls. As well as being unlawful under the Equality Act, requirements on female employees to wear high heels may breach health and safety laws.

Such risk assessments are also essential if an employer wants to impose specific requirements, such as a ban on jewellery, that may otherwise be taken as indirect discrimination, for example, where someone was banned from wearing a religious symbol, such as a crucifix. Suppose there is a health and safety risk, for example. In that case, where employees operate potentially dangerous machinery where jewellery could be caught, this may justify such a ban.

Uniforms and the National Minimum Wage

Where employees are required to wear a specific form of dress or uniform at their own expense, employers need to ensure the cost does not impact National Minimum Wage compliance.

The retailer Monsoon found itself unintentionally breaching the regulations because it required staff to buy and wear items from the retail chain’s clothing range. HMRC investigated and said that as the wearing of Monsoon clothes was compulsory, the amounts spent by the employees on clothes for work in any pay reference period should have been deducted from their pay for that period before calculating whether they had received the National Minimum Wage. For Monsoon, this resulted in back-pay of more than £100,000 to reimburse employees and a fine of £28,147.81.

This applies equally where a loose policy is in place, for example, requiring a certain colour to be worn. HMRC gave as an example the requirement for hairdressing staff to wear white t-shirts and black trousers for work, saying this should be treated in the same way.

Call Karen Cole today if you have any concerns over dress codes.

Note: This is not legal advice; it provides information of general interest about current legal issues.