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In this month's edition of our employment law & HR update, we have published a selection of case studies, news and insights including:
- amendments to the Equality Act due to come into force from 2024;
- reforms to the Rehabilitation of Offenders Act;
- a case review where the Employment Appeal Tribunal (EAT) held that the tribunal had been wrong to find that the claimant's resignation was really intended;
- increased rates to National Living Wage and National Minimum Wage;
- a case featurning an employee who was dismissed over submitting fraudulent expenses;
- top tips for employers in the wake of an employee that was told to wear make-up wins a sex discrimination claim; and
- details of our upcoming webinar on 'AI Legal Minefields: Avoiding Common Traps.'
If you require any further information on anything included in this update, or any employment issue you may be facing, please do not hesitate to contact the Employment team on 01332 226 126 or by replying to this email.
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Amendments to the Equality Act
Busy times in government!
So what does this mean?
In short, discrimination protections derived from EU law are being reproduced into domestic (UK) law. These are due to come into force on 01 January 2024, but as they are largely an exercise in preservation, it is unlikely that employers need to make any changes.
The amendments include:
- A new subsection 4A within section 79 of the Equality Act will preserve a single source test for establishing a comparator in equal pay claims.
- Under a new section 19A, the right to claim indirect discrimination by association is confirmed.
- Schedule 1 will be amended to record that the definition of disability includes consideration of a person’s ability to participate fully and effectively in working life when considering “day to day activities”.
- Confirmation that less favourable treatment on the ground of breastfeeding constitutes direct discrimination on the grounds of sex.
- Discriminatory statements concerning refusal to recruit people with certain characteristics (even where no recruitment is ongoing and no applicant has been disadvantaged) amount to direct discrimination.
Again, this is largely an exercise in consolidation to avoid certain protections being lost at the end of the year.
If you have any queries about the content of this update, or would like to have your existing diversity and inclusion policies reviewed, please do not hesitate to contact us.
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Reforms to the Rehabilitation of Offenders Act 1974
Reforms to the Rehabilitation of Offenders Act 1974 were implemented on 28 October 2023 to reduce the periods of time after which certain offences are no longer legally required to be disclosed to an employer.
Under the previous position, some offenders were required to disclose their sentences for the rest of their lives. Now, custodial sentences of four years or less, and of more than four years for some less serious crimes, will become ‘spent’ after a period of rehabilitation of up to seven years after the sentence has been served, provided that no further offence is committed in that period.
If an individual reoffends during the rehabilitation period, they will have to disclose both their original and subsequent offences to employers for the duration of whichever rehabilitation period is longer.
The previous rehabilitation periods were:
- community order – one year beginning with the last day on which the order had effect.
- custody of six months or less – two years.
- custody of more than six months and up to 30 months – four years.
- custody of more than 30 months and up to four years – seven years.
for offences with custodial sentences of more than four years, the conviction was never spent.
The new rehabilitation periods are as follows:
- community order – the last day on which the order had effect.
- custody of one year or less – one year.
- custody of more than one year and up to four years – four years.
- custody of more than four years – seven years.
However, it is important to note that convictions for serious sexual, violent, or terrorist offences will never be spent and are therefore always disclosable, and stricter disclosure rules will continue to apply to jobs that involve working with children and vulnerable people.
If you would like advice in relation to your recruitment processes, please get in touch with a member of the Employment team.
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‘Heat of the moment’ resignations and dismissals
Omar v Epping Forest District Citizens Advice [2023] (EFDCA)
In the recent case Omar v Epping Forest District Citizens Advice [2023] (EFDCA), the Employment Appeal Tribunal (‘EAT’) held that an Employment Tribunal erred finding that an employee’s resignation in the heat of the moment was really intended.
We provide a detailed examination of the case, highlighting significant findings and the resulting implications for employers.
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Largest ever cash increase to the minimum wage
The Government has accepted The Low Pay Commission’s recommendations for an increase to the rates of the National Living Wage (NLW) and the National Minimum Wage (NMW) which will come into effect from April 2024.
From 01 April 2024, the rates will be as follows:
- NLW: £11.44 per hour (an increase of £1.02 per hour from the current rate of £10.42 per hour).
- NMW for 18-20 year olds: £8.60 per hour (an increase of £1.11 per hour from the current rate of £7.49 per hour).
- NMW for 16-17 year olds: £6.40 per hour (an increase of £1.12 per hour from the current rate of £5.28 per hour).
- NMW for apprentices: £6.40 per hour (an increase of £1.12 per hour from the current rate of £5.28 per hour).
Currently, the NLW currently applies to workers aged 23 and over, however following recommendations from the Low Pay Commission, this will be lowered to 21 from April 2024.
This increase represents the largest ever increase to the NMW and NLW in cash terms, and the first time it has increased by more than £1.00. The Low Pay Commission noted that the increase is driven by the strength of pay growth across the economy, which is forecast to continue into next year.
Given the expansion of those eligible for the NLW from 01 April, it is important for employers to ensure that they are prepared for the increases and are taking steps to ensure that all staff are on the correct rate of pay from 01 April 2024.
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Dismissed over fraudulently submitting expenses for a sandwich
An Employment Tribunal has “digested” the unfair dismissal claim of Mr Fekete, a Citibank employee who claimed expenses on coffee and sandwiches for his partner.
Mr Fekete was a long serving employee with a previously unblemished disciplinary record. He had travelled to Amsterdam for work and made a claim for expenses within Citibank’s daily 100 Euro limit. He was questioned on why he had required two coffees and two sandwiches over one lunchtime and initially said that these were to cover a missed breakfast and a missed evening meal. This was a lie and he later admitted that the second items had been consumed by his partner who had accompanied him on the trip. He was dismissed for gross misconduct, for the initial theft and for subsequently lying to his employer (dishonesty).
He brought a claim of wrongful and unfair dismissal but the Tribunal upheld his dismissal as fair. It found that Citibank had undertaken a reasonable investigation and had considered Mr Fekete’s mitigation that he was grieving his grandmother. The decision to dismiss was within the band of reasonable responses.
So, what can we “takeaway” from this?
This was an individual employed within the finance industry where honesty and accountability are highly valued. Arguably this could apply in many professions, but in this case, it was noted that the Claimant was employed in a position of trust. The Judge found that he was under an obligation to own up to what he had done and that the fraudulent claim, albeit it low in value, was enough to lead to the termination his employment. His dishonesty during the initial investigation further compounded his fate.
Furthermore, this case might give you cause to revisit your own expenses policies and codes of conduct.
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Employee told to wear make-up wins sex discrimination claim
Ms Henry was employed by Tattu Manchester as a waitress. She was told that she looked tired and unpresentable and was asked to wear make-up for her next shift.
She was also told that her voice was bland and that she should “liven up” when serving customers. Her employment was brief, and she resigned after just five shifts, having been reduced to tears.
The Tribunal found that she had been exposed to unwanted conduct and that conduct was related to sex. Although it is not unheard of for men to wear make-up, the Tribunal found that it was a comment unlikely to be made to a man. The effect of the unwanted conduct was that she felt humiliated by the comment (the intention of the perpetrator being irrelevant).
Top tips
- Where you have a genuine business requirement that staff appear presentable/professional, make sure the requirement is applied to all, irrespective of sex; and
- Refrain from making personal comments and instead point to a wider policy or requirement that is applied to all.
Another interesting aspect of this case was the suggested use of lie detector technology. This is unusual in Employment Tribunal proceedings and worthy of comment. The Claimant wanted to use polygraph results as evidence that she was telling the truth as to the comments that had been made to her. The results of the test were apparently 98% “proof” that she was telling the truth.
As expected, the Tribunal declined to allow the evidence on the basis that the test results would be of little evidential value. It found that any such results could only show that the Claimant believed what she was saying was true; and not that what she was saying was actually true.
This is an interesting finding and supports what we would expect. It would be a significant step for the Employment Tribunals to allow evidence of this nature and would raise far too many questions about the reliability of the evidence and the methods by which it was obtained. It is therefore a welcome decision.
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AI Legal Minefields: Avoinding Common Traps
Tuesday 12 December - 11:00-12:30
Join us for an insightful webinar to explore the legal challenges of Artificial Intelligence, both for your internal use and for suppliers incorporating AI in their deliverables to customers.
Experts from our Commercial and Employment teams will be providing information and guidance to help navigate current legal frameworks governing AI, ensuring compliance and informed decision-making in a rapidly evolving legal landscape.
Throughout this session, you will learn how to cultivate ethical leadership by exploring AI’s ethical considerations, understanding liability and accountability, and transforming the workplace for cautious success in the AI era.
The webinar will cover:
- Introduction to AI and Legal Landscape in England & Wales
- AI in the Workplace
- Personal & Sensitive Data
- Ownership & Intellectual Property Rights
- Liability and Accountability
Who should attend?
- Business owners
- Management board
- Senior management
- Department heads covering operations, compliance, data protection, HR, procurement, sales etc.
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Contact our employment law experts
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© Flint Bishop LLP The content of this email is provided for general interest and information. It contains only a brief overview of aspects of the subject matter and is not intended to provide comprehensive statements of the law. It does not constitute legal advice and is not intended to provide a substitute for it. Your information will be processed in accordance with our privacy notice. Flint Bishop LLP is a Limited Liability Partnership, registered in England and Wales. Our registration number is OC317931. Its registered office is Pinnacle Building, 2 Prospect Place, Pride Park, Derby DE24 8HG. We are authorised and regulated by the Solicitors Regulation Authority (SRA ID 509657). A list of members’ names is available for inspection at our registered office. Any reference to a Partner of Flint Bishop LLP means a member or an employee with equivalent standing and qualifications. Flint Bishop Solicitors, Flint Bishop Solicitors LLP, and FBDebt are trading names of Flint Bishop LLP.
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