Employment Law Bulletin – October 2023

Welcome to your quarterly employment law bulletin from Roots HR. 

This quarter we update you on… 

Dress codes at work: key things to consider

Employers are able to issue reasonable workplace instructions across a wide variety of different areas of working life and dress code is one of these.  

Sometimes what is acceptable will be linked to employer branding and image (for example a branded t-shirt which may be worn in a charity shop setting), sometimes it will be dictated by health and safety requirements (think of work boots and high visibility clothing on building sites) and sometimes it will merely be linked to maintaining a certain level of professionalism and separating ‘leisure’ from ‘work’.

Regardless of the impetus any form of dress code in the workplace, employers should make sure that the rules are reasonable, easy to understand and non-discriminatory. In particular, we suggest that employers consider the following: 

  • Make sure that your dress code does not unreasonably impinge on an employee’s cultural, racial or religious clothing if at all possible. There are obviously circumstances (for example, where health and safety concerns are involved) where this will not be possible but, outside of this, any dress code should not include any discriminatory requirements unless you are satisfied that they can be justified.
  • Gender-specific clothing rules should be avoided as these are likely to be found to be discriminatory on grounds of sex, sexual orientation and/or gender re-assignment.
  • If your business adopts a hybrid-working pattern then consider the relaxation of any dress code for days when the employee is not in the office.
  • Make sure that you set out any dress code rules in a clear, accessible policy or other document, draw employee attention to it and explain the action that will be taken against employees in the event of non-compliance. It is likely that wilful non-compliance would be dealt with as a disciplinary matter but employers need to be careful not to be too heavy-handed and to take the time to understand any reasons underlying the employee’s non-compliance.
  • Take account of the impact of any dress code on employee wellbeing. If employees do not feel comfortable at work then this could impact on productivity and wellbeing.

Holiday pay claims are no longer restricted by 3-month gaps between deductions

The Supreme Court has recently handed down its judgment in the case of Chief Constable of Police Service of Northern Ireland v Agnew.  

The Claimants in this case were police officers and civilian staff working for the police in Northern Ireland. They brought claims for underpayment of holiday pay after having historically received basic pay only during periods of annual leave. The parties agreed that there had been an underpayment and that holiday pay should have been calculated to include periods of compulsory overtime. The issue before the Supreme Court was how far back the Claimants were entitled to go with their claim.

In Bear Scotland v Fulton the Employment Appeal Tribunal (EAT) had previously concluded that deductions could only be linked in a series if there was a gap of three months or less between each deduction. 

But the Supreme Court has now held that employees can claim for historic underpayments of holiday pay even if there are gaps of more than three months between deductions. The Court concluded that the period during which a claim can be brought is three months from the date the last payment was made, but that this three-month limit does not restrict or qualify the meaning of a “series” of deductions.

From an employer’s perspective, it’s important to remember that the impact of this judgment is mitigated by the fact that claims for unlawful deductions from wages under the Employment Rights Act 1996 can now only go back two years.  

Proposal to reform parental leave and pay

The government has published a response to a 2019 consultation on proposals for reforming parental leave and pay.  

The response sets out substantive changes to paternity leave which will be implemented in due course:

  • Employed fathers and partners will be able to take the current entitlement of up to two weeks’ statutory paternity leave in two separate blocks of one week of leave if they wish, rather than having to choose between taking one week or two weeks.
  • Employed fathers and partners will be able to take their statutory paternity leave at any time in the first year (within 52 weeks of birth or placement for adoption), rather than just in the first eight weeks after birth or placement for adoption.
  • Currently, notice of the date on which an employee wants paternity leave to start has to be provided 15 weeks before birth. The government will change the notice requirements for statutory paternity leave to make these more proportionate to the amount of time the father or partner plans to take off work. It is proposed that fathers will need to give 28 days’ notice before each period of leave they intend to take, although the notice of entitlement will still need to be given 15 weeks before birth.

Although the consultation also considered other family-related leaves, including maternity leave and pay, maternity allowance, and unpaid parental leave, no changes are currently proposed to these entitlements.

We will let you know as soon as we have any confirmed dates for the changes to paternity leave.  

Maya Forstater awarded over £100,000 following remedy hearing in gender critical belief discrimination case

The landmark case of Forstater v CGD Europe Limited was notable as the first case in which the UK courts confirmed that gender critical views (the belief that sex is biological and immutable) can form a protected philosophical belief under Equality Act 2010. Ms Forstater had succeeded in claiming that she had been directly discriminated against when she was offered no further CGD consultancy work and a visiting fellowship was not renewed after she had made her gender critical views public.

Following a recent remedy hearing she has now been awarded over £100,000 in damages, including loss of earnings, injury to feelings and aggravated damages. The injury to feelings award was £25,000. She was also awarded £2,000 in aggravated damages.

This remedy judgment is useful for employers as it provides a clear guide as to where tribunals are likely to pitch injury to feelings awards in similar cases. A reminder, if one was needed, that failing to treat employees with respect or treating them differently because of their beliefs can be very costly for employers. 

Five things you need to know about right to work checks

The right to work checks in place in the UK are complex and detailed. Businesses should take advice on a case-by-case basis to make sure that they stay on the right side of the law. We have set out below 5 facts about right to work checks: 

  • You must check all job applicants’ right to work in the UK before you employ them. If you do this correctly in accordance with the government’s requirements then this will provide your business with a ‘statutory excuse’: a defence against a civil penalty (due to rise to £45,000 per breach in 2024) which would otherwise be payable for employing an illegal worker. 
  • There are three main ways of checking an applicant’s right to work which, if completed correctly, can provide a ‘statutory excuse’: online if they have a share code; by checking the applicant’s original documents; or by using an identity service provider that offers Identity Document Validation Technology (IDVT). Different methods of verification are required depending on the nationality and immigration status of the applicant involved.
  • In some circumstances, an applicant will not be able to demonstrate a right to work using any of the above methods. In such cases you must ask the Home Office (using the Employer Checking Service) to check the applicant’s immigration status. They will provide a Positive Verification Notice (PVN) if the applicant has the right to work. The PVN must be kept as this can be used as a defence against a civil penalty.
  • Checks of manual documents must be done in a certain way following a three-step process: Obtain, Check and Copy. The actual documents must be seen in-person. Copies are not acceptable.
  • The list of acceptable documents is published by the Home Office and is split between List A (permanent right to work) and List B (temporary right to work). If you conduct the right to work checks correctly before employment begins and obtain documents from List A, you will establish a continuous statutory excuse for the duration of that person’s employment with you. You do not have to conduct any follow-up checks on this individual. If you conduct the right to work checks correctly after obtaining documents from List B, you will establish a time-limited statutory excuse. You will be required to conduct a follow-up check in order to retain your statutory excuse.

Increase in civil penalties for employers found to have employed illegal workers

The government has announced plans to triple the maximum fine it can impose on employers who are found to have employed a person who does not have the right to work in the UK. Increased penalties are set to commence in early 2024. Fines for employers who employ illegal workers will increase from £15,000 to £45,000 for a first offence and from £20,000 to £60,000 per breach for repeat offenders.

Employers could also face criminal penalties if they knowingly employ someone who does not have the right to work in the UK. 

The risk of criminal liability coupled with the substantial increase in the level of fines payable means that employers should be more focused than ever on making sure that their right to work checks are fit for purpose and accord with all legal requirements. 

And finally…

Fintech business Lanistar’s latest bold initiative to boost recruitment has landed them in hot water. Effective recruitment strategies are not just about an organisation picking the best applicants, they are about attracting the best applicants in the first place. In this way, recruitment comparison websites like Glassdoor, which include company reviews from existing and former employees as part of their job search functions, can have a significant impact on the quality of applicants coming through the door.

Financial News reports that Lanistar had a low Glassdoor rating following allegations of sexual harassment and bullying. They aimed to counter this by offering employees up to £2,000 if they left positive reviews on Glassdoor. Unfortunately, their emails urging employees to leave reviews and plugging the financial rewards available if they did were leaked. Glassdoor have confirmed that they will take down any reviews that have been written in return for financial reward. The whole initiative has certainly raised Lanistar’s profile – just not perhaps in the way they had hoped!