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“Mind the Gap” - are you ready for gender pay reporting?

April 4, 2017 at 9:00 AM

The difference in pay between men and women is troubling. But will the reporting scheme which gets under way this month be a step towards its eradication?

Mind the Gap - Train Station Platform Warning

Employers with a headcount of 250 or more will be required to publish the difference between mean and median pay of full-time male and female staff, as well as the difference between bonus pay, the proportions of men and women awarded bonuses as well as crunch some complex numbers to calculate the lower, lower middle, upper middle and upper quartile pay bands.

There is a wider definition of who counts as an employee for the reporting compared to the Equality Act 2010. This means that workers are included, as well as some self-employed people. Agency workers are included, but counted by the agency providing them.

Private and voluntary sector businesses should base their data on staff employed on a ‘snapshot’ date of 5 April. Businesses will have 12 months to publish the information on their website and upload it for publishing on a government website also. The figures, along with a written statement confirming their accuracy, must be accessible to staff and the public. Employers have the option to provide a commentary alongside their calculations to explain the reasons for the results and give details about what actions being taken to reduce or eliminate the gender pay gap.

Whilst the reporting requirements might appear to only apply to businesses with more than 250 staff, in practice, any size business providing services to another business may be asked to provide the information voluntarily so they can prove to their suppliers pay staff fairly.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

Posted in: Blog

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The perils of April Fool jokes in the workplace

March 31, 2017 at 9:00 AM

1st April is a time harmless mischief - but what happens when someone plays the April Fool at work?

What is humorous to one person could feel like harassment to another. It is easy for horsing around and “banter” to go too far, for someone to take offence and lead to allegations of misconduct and bullying. Employers will be left to manage the fallout and face the risk of a claim against them in an Employment Tribunal.

Carphone Warehouse Shop Front

One “practical joke” turned into something far more serious and resulted in Mr Otomewo doing just that - taking his employer, Carphone Warehouse to court and winning.

Two of Mr Otomewo’s colleagues took his phone without his consent, accessed his Facebook account and changed his status to say “finally came out of the closet, I am gay and proud.” The two workers knew their manager was not gay. The Tribunal decided that the employees' conduct amounted to sexual orientation discrimination despite Mr Otomewo being heterosexual.

Age based comments are often the focus for complaints and a sensitive area for many. Even if someone appears to tolerate the teasing, they may still be able to succeed in a claim at Tribunal for discrimination.

What should employers do? If a worker raises a complaint or grievance - investigate it promptly, fully and take the appropriate action. Failure to be seen to treat a grievance seriously or to prevent harassment, discrimination or bullying occurring could entitle an employee to resign and claim they were forced out.

Mr Otomewo brought his claim against his employer rather than the two colleagues. If the actions were carried out 'in the course of their employment', employers can find themselves liable for the actions of their staff. The employer was liable for the acts of its employees because the Facebook entries had been posted in the course of employment, during working hours and were between staff and a manager.

Compensation in discrimination cases is unlimited so this could prove to be expensive.

Tips for employers

• Just because something occurs on 1st April, don’t turn a blind eye to it. Deal with misconduct in the same way as you would do so if it occurred on any other day.

• If an employee complains that a trick has been played on them, deal with it efficiently and follow your grievance procedures.

• Whether a prank is offensive or not is not a subjective test - if the target of the joke takes offence and raises a grievance or even brings a Tribunal claim, saying the offence was innocent or unplanned is not a defence

• Ensure the right policies are in place and up-to-date and ensure all staff are aware of and trained to prevent inappropriate workplace pranks or jokes from occurring in the first place.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

Posted in: Blog

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Main provisions of Trade Union Act 2016 in force on 1 March 2017

February 28, 2017 at 9:00 AM

The Trade Union Act 2016 (Commencement No. 3 and Transitional) Regulations 2017 have been made which confirms the major provisions of the Trade Union Act 2016 will come into force on 1 March 2017.

Among the provisions coming into force on 1 March are:

  • 50% turnout requirement for all ballots (S.2 of the 2016 Act);

  • A requirement that 40% of those entitled to vote support industrial action in important public service ballots (S.3);

  • New rules governing the information that must be included on the ballot paper (S.5); and

  • Restrictions on ‘check-off’ arrangements, requiring unions to make a reasonable contribution to the cost of administration (S.15).


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

Can you dismiss someone for gross misconduct if they have been grossly negligent?

February 27, 2017 at 9:00 AM

Yes...depending on the facts of the case.

Sainsburys Store Front

The Claimant in Adesokan v Sainsbury's Supermarkets Ltd was a Regional Manager who became aware that a HR Manager had sent an email which attempted to interfere in and undermine an important management consultation exercise. The Claimant did nothing to get it withdrawn or to remedy the situation. At a disciplinary hearing it was decided that his failure to act demonstrated gross negligence which was "tantamount to Gross Misconduct" and he was dismissed without notice. He sued for breach of contract.

The High Court held that even though the inaction of the Claimant was not deliberate his negligence was so serious that it resulted in sufficient a "loss of trust and confidence" to justify his dismissal. The Court of Appeal agreed. Even though courts should not easily find that a mere failure to act amounted to gross misconduct, on the facts of this case the senior position the Claimant had in the Company justified the dismissal.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

Responding to a Subject Access Request

February 27, 2017 at 9:00 AM

The reaction of most employers when faced with a Subject Access Request from a current or former employee is one of dread. It can be time consuming and a real administrative burden and the consequences of getting it wrong can add to the disruption.

File / Folders

In a prominent judgment, the High Court refused an application to order a business comply with a subject access request (SAR) on the basis that searches had been reasonable and proportionate and refusal to provide some documents through protected legal professional privilege was properly claimed.

The claimant in the case of Holyoake v Candy challenged the adequacy of the data controllers’ searches and, in particular, felt that the searches were flawed as the company directors’ involved had not been asked to search their private email accounts.

The Judge felt that such a search would be an “intrusion requiring justification”. Whilst he accepted that a director who used a private email account for work may owe the company a duty to allow access to this, the company was not bound to ask for access unless there was a “sufficient reason to do so”.

The claimant also argued legal professional privilege (discussions between a client and their lawyer) could not be relied on as there was a suspicion that some of the activities were tainted by criminal conduct. However the Judge confirmed that there would need to be strong evidence of wrongdoing to justify an inspection of privileged documents not just a speculative case.

This decision is useful as it restates the position that searches need only be “reasonable and proportionate” and gives further guidance on the searching of private email accounts. However, the court’s view is difficult to reconcile with that of the ICO which has stated that the ‘disproportionate effort’ exemption found in the Data Protection Act relates to the production of a copy of the data and not the search itself.

How we can help

Responding to a Subject Access Request isn’t as simple as it sounds. There can be very good reasons not to comply fully with the request – particularly if there is the threat or actual litigation in process.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

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