This ‘Halloween edition’ of our employment news bulletin is all treat and no tricks, as Mike Smith explains October’s key developments, including: new social media guidelines; some practical points on harassment from the Employment Tribunal; the new ‘shares for rights’ proposals and an update on draft legislation on equal pay audits and equalities.
This ‘Halloween edition’ of our employment news bulletin is all
treat and no tricks, as Mike Smith explains October’s key developments: an equal pay
& equalities round up, including the recent Birmingham City Council
decision on equal pay; new social media guidelines; some practical
points on harassment from the Employment Tribunal; and the new
‘shares for rights’ proposals.
The Supreme Court last week handed down its decision in Birmingham City Council v Abdulla that equal pay claims may be brought in the civil courts, even if the time limit for bringing an equal pay claim in the Employment Tribunal has expired. This means that employees have six years in which to bring their claims, rather than the six months during which a claim must be brought in the Employment Tribunal. Furthermore, the payment of employees’ legal costs in bringing equal pay proceedings will be an issue, as employers may have the winning party’s legal costs awarded against them; whereas costs are relatively rarely awarded in the Employment Tribunal, regardless of the outcome.
Following on from this decision, employers may find that equal pay claims start to come out of the woodwork, even if the employee has long since left their employment or any pay disparity has been resolved. Bevan Brittan’s employment team has extensive experience of advising on equal pay issues (including complex and high volume litigation), so please do contact the author of this article, Mike Smith, or Sarah Lamont if you require any assistance in this regard.
In other equalities developments, draft amendments to the Enterprise and Regulatory Reform Bill have been announced. In relation to equal pay, ministers will have a power to make regulations requiring employment tribunals to order that an equal pay audit is undertaken by any employer found to have breached equal pay law or discriminated because of sex in non-contractual pay, such as discretionary bonuses (as we reported in September’s Employment Eye).
However, audits will not be ordered in all circumstances. An audit will not be ordered when
In relation to equalities
As we reported last month, Keir Starmer QC, the director of public prosecutions (DPP), announced that a wide public consultation was to be undertaken with a view to issuing new guidelines on abuse arising from the use of social media. It has now been reported that the DPP expects the new measures to be announced before Christmas and that these will enable relevant authorities to use remedies other than criminal prosecution to address instances of offensive activity. Please see our October 2011 and April 2012 articles for more information on social media and employment law.
An Employment Tribunal has found that a newspaper sub-editor, Mr Heafield, was not harassed on the grounds of religion when an offensive comment about the Pope was shouted across the newsroom. Mr Heafield was a practising Catholic, and claimed that the comment amounted to harassment because he felt intimidated and frightened by it.
However, the Employment Tribunal found that Mr Heafield had failed to show that it was reasonable for him to have reacted to the comment in this way, when the comment was seen in context. The comment was made in the context of an editor, Mr Wilson, shouting across the newsroom ‘can anybody tell me what’s happening to the f-ing Pope’ and, when no-one responded, he repeated the question, raising his voice. The Employment Tribunal accepted the newspaper’s argument that the comment was not made about the Pope himself but regarded the whereabouts of the article – ‘the Pope’ was the working title of the article. Furthermore, whilst Mr Wilson’s comments were offensive and disrespectful, applying the objective limb of the definition of harassment, the Employment Tribunal found that it was not reasonable for Mr Heafield to have felt that the comment created a hostile, intimidating, degrading, humiliating or offensive environment. The comment was not made in the context of a discussion on the Church or a debate on the Pope's forthcoming visit to the UK or any other related issue. Neither was there any evidence that Mr Wilson was using the situation as a pretext to create a hostile environment for Mr Heafield.
Although this is only a first instance decision (so another tribunal could come to a different conclusion), it is a useful reminder of the following practical points on harassment claims
It has been widely reported in the press this month that the government has announced plans for a new type of employment contract called an ‘owner-employee’ contract.
In brief, ‘owner-employees’ can be given £2,000-£50,000 of shares in the business for which they work, which will be exempt from capital gains tax. In return, owner-employees would surrender their right to
There is nothing to prevent employers and employees from agreeing additional rights within an owner-employer contract – for example, longer notice periods in order to ameliorate the effect of losing the right to claim for unfair dismissal.
Until further information is published, there is little that employers need to do in respect of this development.
In terms of the potential impact of this proposal, there may be limited uptake as
It therefore seems unlikely that this latest proposal for reform will change the employment landscape considerably.