EMPLOYMENT LAW BULLETIN JAN 10 | Oct 2009 | July 2009 | May 2009 | March 2009 | Dec 2008 | Oct 2008

Bulletin October 2009
National Minimum Wage
From 1st October 2009, the National Minimum Wage Regulations (Amendment) Regulations 2009, make the following changes:
the adult National Minimum Wage (for those aged 22 or more) increases from £5.73 per hour to £5.80;
for 18-21 year olds the NMW increases from £4.77 to £4.83; and
for 16-17 year olds the NMW increases from £3.53 to £3.57.

Also from 1st October 2009, the maximum amount of a week's pay to be taken into account when calculating statutory redundancy pay and certain employment tribunal awards increases from £350 to £380.

Harassment at Work
Not long ago, Carol Thatcher landed herself in hot water after using the word “golliwog” at an after-work event at the BBC. When another member of staff complained, she said it was just a “light-hearted comment made amongst friends.” Others could view what was said as racial harassment, so her employer, the BBC had to intervene. When she refused to apologise, her contract was brought to an end.

It’s irrelevant whether or not the person means the words in an “offensive” way. Legally, the definition of harassment is - any unwanted conduct which has the purpose or effect of violating the other person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

There have also been some cases recently that have highlighted the seriousness of making flippant remarks. One example is as follows. When employee (D) resigned her manager remarked; “We will probably bump into each other in future, unless you are married off in India.” D was offended by this comment and brought a claim for racial harassment. The Employment Appeal Tribunal (EAT) said the words used satisfied the definition of racial harassment in the Race Relations Act 1976 (see above). In D’s case, her manager insisted that there was no intention to harass or degrade her and that she was over-sensitive to the remark. However, the EAT decided the comment evoked a “stereotype of forced marriage” and that it was reasonable for D to have found this remark offensive.

So as an employer - what can you do?
To avoid this type of claim, it is important to have a well-written equal opportunities and dignity at work policy. It should have a clearly worded section that explains you follow a zero tolerance approach to this type of behaviour. Make it clear that any breaches of the policy could lead to disciplinary action and, if serious enough, will result in dismissal. Also include examples of unacceptable behaviour, e.g. offensive nicknames. The policy should also cover internal workplace communications, such as e-mails, intranet etc as some employees may use it to send jokes that are funny to some but could be offensive to others. Whilst a policy like this won’t stop claims of racial harassment altogether, it will go some way to protect you if you’re unfortunate enough to end up in tribunal.

Imposing flexible working changes
In order to avoid redundancies, you may have already asked staff to agree to temporary flexible working measures, such as reduced hours. What happens if there aren’t enough volunteers? How do you impose the changes that you need to make?

Introducing changes, e.g. reducing hours and pay, without an employee’s consent isn’t as straightforward as you may think. Any attempt to unilaterally vary a contract of employment, i.e. without first obtaining the employee’s written consent, puts you at risk of being taken to tribunal. You would risk a claim of unlawful deduction of wages and should the employee resign over your imposed changes, you could also face a breach of contract and constructive dismissal claim.

This means that you must consult with the employees, through employee or, if applicable, trade union representatives. Consultation is your last chance to show why any voluntary measures haven’t yielded sufficient cost-savings. As this is your last opportunity to persuade staff to voluntarily agree to flexible measures, such as pay cuts, make them temporary. Set a time period that they will last for and make it subject to review. If you need to extend it later, have evidence to back up why this is.

If one or more employees still refuse to accept a pay cut, you’ll have no option but make contractual changes. This means that you would need to formally terminate their existing contracts and issue new ones. At this point, the employee could: (1) claim they’ve been constructively dismissed; (2) accept it; or (3) refuse to sign it but still perform their duties under the new terms. The longer they do this for, the easier it will be for you to argue the new terms have been accepted.

As difficult trading conditions may be around for a while, it may be worthwhile amending your contracts to give you flexibility to reduce working hours. If you want to take this option, then seek professional advice on how to word this statement correctly.

Proposed changes to Maternity and Paternity Leave
The Government has announced that subject to consultation and usual parliamentary procedures, it proposes to introduce new legislation from April 2010 that will allow mothers on maternity leave to return to work after 6 months and for fathers to remain at home for the rest of the 12 months, that is currently allowed by law. It is anticipated that this new legislation if agreed, will have effect for parents of children due on or after 3 April 2011.

Labour deputy leader Harriet Harman, who is also minister for women and equality, said: "Mothers will be able to choose to transfer the last six months of their maternity leave to the father, with three months paid. This gives families radically more choice and flexibility in how they balance work and care of children, and enables fathers to play a bigger part in bringing up their children."

Also planned changes to increase maternity pay from 9 months to 12 months are being reconsidered and possibly will be shelved due to the additional cost this would incur.

Disclaimer. The purpose of this briefing is to give a brief introduction to current topical issues on employment law. Although every effort has gone into providing accurate, relevant and up to date information, it must not be relied upon as giving sufficient advice in any specific case. Professional advice should always be taken, before any decision is reached on matters relating to the employment of staff and their rights.