SOSR: The Art of Alternative Dismissal - A HR Forum

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BREATHING NEW LIFE INTO LAW


CHAMBER OF COMMERCE HR FORUM

Nicola Butterworth and Hannah Pryce 2 March 2016

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SEMINAR SPEAKERS

Nicola Butterworth, Associate 01603 580076 [email protected] Nicola is an experienced employment lawyer. Nicola advises on all areas of employment law, including whistleblowing and employment status and has particular expertise in the defence of complex ET claims.

Hannah Pryce, Solicitor 01604 [email protected] advises clients on a broad range of employment law issues. Her contentious experience includes unfair dismissal and discrimination (including sex, disability and age). Hannah also advises on the non-contentious elements of employment law and drafts company handbooks and contracts of employment.

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CHAMBER OF COMMERCE – HR FORUM

• Employment Law Update

• SOSR - The Art of Alternative Dismissal • Refreshment Break

• Discussion Group

• Questions


EMPLOYMENT LAW UPDATE

Nicola Butterworth 2 March 2016

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THE YEAR AHEAD

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January

11

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ZERO HOURS CONTRACTS

“A contract of employment or other worker’s contract under which (a) the undertaking to do or perform work or services is an undertaking to do so conditionally on the employer making work or services available to the worker, and (b) there is no certainty that any such work or services will be made available to the worker” (s 27(A)(1) ERA 1996)

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Exclusivity clauses unenforceables 27A(3) ERA 1996

The Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 right not to be unfairly dismissed right not to be subjected to detriment

for a reason relating to a breach of a provision of zero hours contract to which s 27A(3) ERA 1996 applies

ZERO HOURS CONTRACTS

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April

1

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The National Minimum Wage (Amendment) Regulations 2016

premium added on the NMW for all workers aged 25 and over

initial rate £7.20 p/h

Low Pay Commission annual rate recommendations

NATIONAL LIVING WAGE

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June

23

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“Brexit”?Implications for UK employment law?

discrimination rights? collective consultation obligations? TUPE? Working time regulations? Agency workers?

Free trade agreement EU social and employment regulation

EU REFERENDUM

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October

1

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Why?

draft The Equality Act 2010 (Gender Pay Gap Information) Regulations 2016

new reporting regime for large employersprivate & voluntary sector employers250 or more “relevant employees”publish information relating to the difference in pay between male and female employees

GENDER PAY GAP REPORTING

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Pay? definition ONS ‘ASHE’

Gender pay gap duty to publish information relating to pay

overall mean and median gender pay gaps data from specific pay period every April from 2017


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Mean Pay The mean is the total of the numbers divided by how many numbers there are.

A = the mean gross hourly rate of pay* of all male relevant employees employed on the relevant date (e.g. £15)B = the mean gross hourly rate of pay* of all female relevant employees employed on the relevant date (e.g. £10) (*weekly pay / weekly basic paid hours for each relevant employee)


Formula = (A – B) x 100 -------- A

Formula = (15 – 10) x 100 (0.33 x 100 = 33%) --------- 15

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Median Pay The median is the middle value. To work out the median, put the numbers in value order. The number in the middle of list is the median.

C = the median gross hourly rate of pay of all male relevant employees employed by the relevant employer on the relevant date (e.g. £20)D = median gross hourly rate of pay of all female relevant employees employed by the relevant employer on the relevant date (e.g. £10)


Formula = (C-D) x 100 ------ C

(20 – 10) = 50 0.50 x 100 = 50%------------ 20

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Gender bonus gap duty to publish

difference between the mean bonus payments paid to men and women proportion of male and female employees that received a bonus


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Salary Quartiles duty to publish the number of men and women in each quartile of their pay distribution

list each relevant employee in order of increasing value of their gross hourly rate of pay divide list into four quartiles (each containing a ¼ of the organisation's employees) report the numbers of male and female employees in each quartile


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When does the information have to be published?

annuallyfirst report due by 30 April 2018

Where does information have to be published?employer’s UK website (3 years)government-sponsored websitewritten statement confirming that the information is accurate


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Sanctions?no specific penalty for non-compliancemonitor compliance

Next steps review pay practices address issues Equal pay audit toolkit http://www.equalityhumanrights.com/private-and-public-sector-guidance/employing-people/managing-workers/equal-pay/equal-pay-audit-toolkit

GENDER PAY REPORTING

http://www.equalityhumanrights.com/private-and-public-sector-guidance/employing-people/managing-workers/equal-pay/equal-pay-audit-toolkit



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April

2017

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What is the Apprenticeship Levy? a levy on employers to fund new apprenticeships

0.5% of an employer’s total pay bill for the tax year less an annual Levy allowance of £15,000 for that year

levy payable on employers’ pay bills in excess of £3 million in the relevant tax year

“connected companies/connected charities” only entitled to one annual levy allowance

collected via PAYE

APPRENTICESHIP LEVY

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Levy funding Digital Apprenticeship Service

online portal 2 years before it expires Government top-ups to digital accounts

‘get more out than pay in to the levy’

New independent bodythe Institute for Apprenticeships

regulate the quality of apprenticeships

APPRENTICESHIP LEVY

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CASE LAW QUIZ

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• C is a multinational company which operates a testing laboratory involving the use of animals for testing products.

• K, who is Russian, was employed by C in February 2014. Concerns arose relating to K’s ‘unusual’ conduct and performance. C’s line manager wondered whether K was an animal rights activist who had infiltrated the company.

• C’s line manager instructed K not to speak Russian at work. He considered it important that any workplace conversations should be capable to being understood by English speaking managers. When K objected that two Ukrainian colleagues also spoke Russian at work, her line manager passed on similar instructions to their managers.

QUESTION 1

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• Performance and conduct issues with K continued and she was told that she would be moved to a formal capability process.

• K raised a grievance about her line manager which was not upheld. She was invited to a formal capability process meeting.

• On 20 May 2014, she tendered her resignation and subsequently brought ET proceedings. The ET dismissed her claims of direct race (national origins) discrimination and/or harassment related to her race (national origins).

• K appealed against the decision.

QUESTION 1

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QUESTION 1

“(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” (Section 13, Equality Act 2010)

Less favourable treatment imports a comparison, “(1) On a comparison of cases for the purposes of section 13…there must be no material differences between the circumstances relating to each case.” (Section 23(1), Equality Act 2010)

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Does an instruction to an employee not to speak their native language at work always amount to an act of discrimination?

QUESTION 1

YES NO

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Does an instruction to an employee not to speak their native language at work always amount to an act of discrimination?

ANSWER 1

YES NO

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• Kelly v Covance Laboratories Limited [2015] UKEAT/0186/15

• EAT dismissed the appeal. It held that the ET had correctly proceeded on the basis that it was possible for such an instruction to amount to an act of direct race discrimination/harassment however (i) the same instruction had been given to actual comparators; and (ii) would have been given to ‘another employee speaking some language other English in circumstances that gave K’s line manager cause for concern’ (hypothetical comparator).

• The EAT further found that the ET had considered the burden of proof and was satisfied that K had discharged it, the instruction was not related to K’s race or national origins but to her line manager’s justified concerns.

ANSWER 1

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• Difference between a requirement to speak English in the workplace and a requirement not to speak another language

ANSWER 1

An instruction only to speak a particular language in the workplace might generally amount to a provision, criterion or practice of apparently neutral application, potentially giving rise to issues of indirect race discrimination (which may be justified). Where, however, the instruction is not to speak a particular language at work, this may give rise to less favourable treatment because of something intrinsically linked with the employee’s nationality thus giving rise to a potential case of direct dace discrimination. There is no justification defence and the burden of proof will shift to the employer who will need to show that its reasons were unrelated to the employee’s race or national origins.

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• Mr B was employed as a picker in a distribution centre. He was required to lift and move cases weighing up to 25 kg by hand for loading onto pallet trucks.

• Mr B had a car accident and developed a back condition which was a long-term physical impairment. The OH evidence was that his back condition impaired his performance and he was unable to meet the target ‘pick rate’ of 210 cases per hour. Mr B said that he was 100% fit for work but the particular work was too heavy for him. Mr B was dismissed on the ground of incapability.

• Mr B brought proceedings alleging unfair dismissal and disability discrimination.

QUESTION 2

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• The ET held that Mr B did not have a disability for the purposes of the Equality Act 2010.

• The EAT held that there was no dispute that Mr B had a physical impairment whose effect was long-term. The question was whether it had a substantial adverse effect on his ability to carry out normal day-to-day activities.

QUESTION 2

“(1) A person (P) has a disability if (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.” (Section 6, Equality Act 2010)

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Can lifting and moving cases weighing up to 25kg in a warehouse amount to a “normal day-to-day activity” under the Equality Act 2010?

QUESTION 2

YES NO

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Can lifting and moving cases weighing up to 25kg in a warehouse amount to a “normal day-to-day activity” under the Equality Act 2010?

ANSWER 2

YES NOYES

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• Banaszczyk v Booker Limited [2016] UKEAT/0132/15• The EAT overturned the ET’s decision and declared that

Mr B had at the relevant time a disability for the purposes of the Equality Act 2010.

• The EAT ultimately reasoned that the lifting and moving of goods weighing up to 25kg is a “normal day to day activity” in the context of work. It noted that large numbers of people are employed to do such an activities across a range of occupations, particularly concerned with warehousing and distribution.

ANSWER 2

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• Banaszczyk v Booker Limited [2016] UKEAT/0132/15

ANSWER 2

If disability law is to be applied correctly, to define the relevant activity or working or professional life broadly: care should be taken before including in the definition the very feature which constitutes a barrier to the disabled individual’s participation in that activity. In this case the activity was lifting and movement of goods manually; the employer’s pick rate was not the activity, but a particular requirement of the employer as to the manner and speed of performance. The time taken to perform an activity must be considered when deciding whether there is a substantial effect.

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QUESTIONS?


SOSR – THE ART OF ALTERNATIVE DISMISSAL

Hannah Pryce 2 March 2016

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2 stage test for unfair dismissal Burden of proof on employer to show the reason for dismissal (or if more than one, the sole or principal reason)Employer must how that the decision to dismiss for that reason was reasonable in all the circumstances (including size and administrative resources)

Burden here is neutral Tribunal will need to investigate reasonableness of dismissalTo be determined “in accordance with equity and the substantial merits of the case” (Section 98(4) ERA 1996)


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Statutory fair reasons Section 98(2) ERA

Capability MisconductRedundancyContravention of a duty/restriction

OR


“Some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held” (Section 98(1) ERA 1996) (“SOSR”)

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What is SOSR?No statutory definition or statutory guidanceSOSR is a residual “catch-all” potentially fair reason for dismissalThe reason must be SUBSTANTIAL It is not simply some other reasonWill depend on the facts and type of caseReason must also be of a kind which will justify the dismissal (rather than any lesser sanction of an employee holding the job the employee actually held)


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Reasonableness and Fair Procedure Do you need to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures?

Procedural fairness is still key


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Overlap with other potential fair reasons Often used as an alternative back up reason

redundancy or SOSRcapability or SOSR

Important to properly characterise reason for dismissale.g. if an employee is guilty of behaviour which results in a breakdown of working relationship, the reason for the dismissal might be misconduct or SOSRprocedure


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Classic examples of SOSR

Business reorganisations

Refusal to accept changes to terms and conditions

Breakdown in trust and confidence

Criminal convictions


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DISCUSSION ONE SUGAR WARS – SWEETEST

STRIKES BACK!


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DISCUSSION TWO DON O’FING OR WILL FIRE?


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DISCUSSION THREE WHOTOCHOOSE?


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DISCUSSION FOUR “THE GINGER MARADONA”


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QUESTIONS?

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