Need to Know: Employment and HR Newsletter – February 2018

Retirement dismissals: lessons to be learned

Do references to “retirement” in settlement discussions necessarily make a subsequent dismissal age discriminatory? In Kelly v PGA European Tour, the EAT supported the Tribunal’s earlier finding that, where such references are purely for presentational purposes and had no bearing on the reasons for dismissal, this was not discriminatory. It serves as a helpful reminder to employers of the potential pitfalls when seeking to terminate senior employees.

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Express HR: Employment law developments in bitesize chunks

• The Court of Appeal has ruled that an employer did not have constructive knowledge (i.e. should have known from the circumstances) of an employee’s disability, despite the employee suffering from that disability in the last two months of employment. The Court was influenced by the fact that the medical evidence from both the employee’s GP and an external occupational health consultant failed to conclusively demonstrate the employee was suffering from a disability.
• The Secretary of State for the Department for Business, Energy and Industrial Strategy has recently made an Order which adds to the list of particulars that must be included in the itemised pay statement that an employee has a right to. It is designed to increase transparency over whether employees are paid correctly and seeks to address underpayment.
• Tesco is facing an equal pay claim that potentially could require it to compensate employees and ex-employees to the tune of £4 billion. The claim is based on the fact that lower paid in-store employees are mostly female and higher paid warehouse staff are mostly male. The claimants will be claiming that despite their roles being different, the work is of “equal value” – one of the circumstances where an equal pay claim can be brought.
• The Government has published its response to the Taylor Review of Modern Working Practices. The Government has also launched four consultations into the matters raised in the Review, which are open until mid-2018. Whilst the Government has accepted the majority of Mr Taylor’s recommendations, we do not anticipate any significant changes to be made until late 2018 or early 2019.
• HM Revenue and Customs has written to over 500 firms over the last three months reminding them that interns classed as workers must be paid the minimum wage. HMRC is also to direct its minimum wage enforcement teams to focus on firms using unpaid interns.
• The government is to start a publicity drive to promote shared parental leave after it was established that, almost three years after the introduction of this benefit, only potentially 2% of those entitled to this benefit take it up. However, a survey conducted last year by Working Families found that lack of awareness was only one reason behind the low uptake – affordability was also a key factor.
• A report by the Institute of Fiscal Studies has shown that part-time workers, the majority of whom are women and in particular mothers with young children, suffer a pay penalty by not being awarded pay rises linked to experience. Although experience tends to be rewarded with progression and higher pay, the report found that part-time workers miss out almost entirely on wage progression. The discrepancy in pay progression between full-time and part-time workers was particularly pronounced in graduate careers, where wage progression is most evident.
• Businesses that are required to comply with gender pay gap reporting regulations have been providing their reports. The data can be found online using the Government’s searchable database. Businesses with over 250 employees have until 4 April 2018 (or 30 March 2018 for public sector employers) to provide their data.

If any of the above issues impact you or your business, or you have any questions, please get in touch with any member of the Employment team.