Employment Review - October 2018

 

Welcome to the October edition of Freeths' employment law update

In this update we consider what constitutes a resignation and an unusual case relating to belief discrimination under the Equality Act. We also discuss the value of a well composed reference and whether salary questions should be banned in interviews.If you haven't attended or signed up for our latest HR seminars focusing on mental health in the workplace, there are still sessions to run at locations across the UK. Register your place now.

• When is a resignation not a resignation?                                                     In the recent case of East Kent Hospitals University NHS Foundation Trust v Levy the Employment Appeal Tribunal had to consider whether an employee's letter giving notice amounted to an effective resignation.
• Bereavement leave                                                                                      The Parental Bereavement (Leave and Pay) Bill has received Royal Assent and is expected to come into force in 2020.
• Should salary questions be banned?                                                      "What is your current salary, and what are your salary expectations?" This is an often asked interview question and one that candidates are unlikely to be surprised by. But should this common question be banned?
• Handbags at dawn - the curious case of Ms Gray and Mulberry               Is a personal belief in the ownership of your own creativity and artistic works worthy of protection under the Equality Act 2010? Not according to the case of Gray v Mulberry Company (Design) Ltd heard recently in the Employment Appeal Tribunal, but the idea isn't as farfetched as it might initially appear.
• Are references worth the paper they're written on?                                  In a world of Google and social media and against a growing fear of being sued, are workplace references still as valuable as they once were? ACAS seems to think so, as it's recently updated its guidance on the subject.
• Autumn HR Seminar Series - Mental health in the workplace                Our current series of employment update seminars focus on mental health in the workplace. This free legal update covers what HR managers should do when faced with employees suffering from mental health issues. Secure your space here.

When is a resignation not a resignation?

In the recent case of East Kent Hospitals University NHS Foundation Trust v Levy the Employment Appeal Tribunal had to consider whether an employee's letter giving notice amounted to an effective resignation.Ms Levy was employed by East Kent Hospitals University NHS Foundation Trust ("the Trust") as an assistant administrator in the records department of one of its hospitals. In that role Ms Levy experienced some difficulties getting along with one of her colleagues in the department and in addition, the hospital's operational manager had to raise with her the issue of her absence record. Ms Levy applied for a new role in the same hospital, this time in the radiology department. On 9 June 2016 she received a conditional offer for the new role, subject to the Trust carrying out some pre-engagement checks.

The day after receiving the conditional offer of the role in the radiology department, Ms Levy wrote a letter to her manager stating "Please accept one month's notice from the above date". Her manager responded by letter on the same day with the heading "notice of resignation" and stated that he accepted her resignation and that her last day in the records department would be 8 July 2016.On 16 June 2016, Ms Levy was informed that she did not pass the pre-engagement checks and the offer of a role in the radiology department was being withdrawn. Ms Levy therefore asked her manager whether she could retract her resignation and this was refused.

Ms Levy brought a claim in the Employment Tribunal for unfair dismissal, in defence of which the Trust argued that she cannot have been unfairly dismissed as she resigned.Ms Levy was successful in her claim for unfair dismissal in the Employment Tribunal and the Employment Appeal Tribunal also upheld this decision on appeal.Although at first it may seem that Ms Levy's letter stating that she wished to give one month's notice clearly showed the intention that she wanted to terminate her employment, in this case the Tribunal held that this was not sufficiently unambiguous and therefore did not amount to a resignation. The issue in this case was the fact that Ms Levy worked in the records department but had a conditional offer to work in the radiology department of the same Trust. Ms Levy therefore successfully argued that she did not intend her letter to terminate her employment with the Trust completely, only to end her role in the records department.

This case illustrates how important it is to ensure that when notice is given by either an employee or employer it is entirely unambiguous. To be effective it must be clear that the intention is for the employment relationship to end on a specific date.

For employers who find themselves in the situation where they receive an ambiguous resignation, it will be important to clarify what the intention of the employee is at the time and to set out in writing what the position is. Likewise, when reaching a decision to dismiss an employee notice should be provided in writing and in accordance with their employment contract and must set out clearly when the employment will terminate.

If you have any uncertainty about the validity of a notice, please speak with a member of the Freeths' employment team.

Bereavement leave

The Parental Bereavement (Leave and Pay) Bill has received Royal Assent, becoming the Parental Bereavement (Leave and Pay) Act 2018.For the first time in the UK this act will provide employed parents with the right to take two weeks' leave if they lose a child under the age of 18, or where they suffer a stillbirth from 24 weeks of pregnancy.

Provided that they meet certain eligibility criteria, they will be able to claim statutory parental bereavement pay. The final regulations are yet to be published but it is expected that the new rights will come into force in 2020.

We will provide further information in an upcoming employment bulletin when the final regulations are published.

Should salary questions be banned?

"What is your current salary, and what are your salary expectations?" is an often asked interview question and one that candidates are unlikely to be surprised by. But should this common question be banned?The problem with this question is that the figures that the candidate reveals are likely to act as a guideline as to the salary level that the candidate would accept were they offered a job. Asking the "salary question" can therefore mean that women who are underpaid in their current role, continue to be underpaid in their next role, which may have a part to play in the UK's current gender pay gap.

The gender pay gap is the difference between the average hourly wage paid to men and the average hourly wage paid to women and is currently 18.4% in the UK according to the Office for National Statistics.

The Young Women's Trust, a charity supporting young women on low or no pay, has recently called for UK companies to ban the "salary question". This has already been adopted by companies in New York and California. The Trust also encourages companies to include salary details in job adverts to improve pay transparency.

There may be many reasons why the gender pay gap exists but there remains much work to be done before it is closed. Improving pay transparency and ensuring that your employees are paid based on merit and what they can offer to the business is one step towards this.

For ideas on closing the gender pay gap in your business, a useful guide has been produced by the government supported Women's Business Council and can be found here.

If you have any questions about what should and shouldn't be discussed in an interview, speak with one of the Freeths' employment team.

Handbags at dawn - the curious case of Ms Gray and Mulberry

Is a personal belief in the ownership of your own creativity and artistic works worthy of protection under the Equality Act 2010? Not according to the case of Gray v Mulberry Company (Design) Ltd heard recently in the Employment Appeal Tribunal, but the idea isn't as farfetched as it might initially appear.Ms Gray was a 'market support assistant' who, in the course of her employment, would have access to luxury handbag and accessory retailer Mulberry's designs prior to launch. Her contract of employment included a clause to protect Mulberry's intellectual property rights and required Ms Gray to assign certain rights to Mulberry.

Ms Gray refused to sign the contract, stating that the intellectual property terms were "too general and open to interpretation" and may infringe upon her personal rights as a writer and film-maker. Mulberry responded by narrowing the clause so far as practicable, so as to apply only to copyright and such proprietary rights in designs originated, conceived, written or made by her in the course of her employment and which related to the business. Despite a series of meetings with Mulberry HR, Ms Gray still refused to sign the agreement and her employment was terminated.

Ms Gray presented a claim for direct and indirect discrimination on the grounds of 'belief' under the Equality Act 2010. Despite having not mentioned any such belief prior to her dismissal, Ms Gray asserted the "statutory human or moral right to own the copyright and moral rights of her own creative works and output."

The Tribunal followed the 'Grainger test' to determine whether Ms Gray's alleged belief met the criteria which would afford it protection under the Equality Act. The test states that a belief must "have a similar status or cogency to a religious belief" and:

• Be genuinely held.
• Be a belief, not an opinion or viewpoint based on the present state of information available.
• Be a belief as to a weighty and substantial aspect of human life and behaviour.
• Attain a certain level of cogency, seriousness, cohesion and importance.
• Be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

In applying the test here, the Tribunal found that her belief was not sufficiently cohesive to form any cogent philosophical belief system and that the expression of her belief concentrated on the individual's right to create, produce and write, and the benefit derived from those activities. Her claim therefore failed.

The Tribunal found that it was Ms Gray's failure to sign the agreement which led to her dismissal and not her philosophical beliefs, of which Mulberry had no knowledge at the time. Any suggestion that she was indirectly discriminated against would also fail, as the requirement to sign the agreement or be dismissed could not be shown to have put others sharing her belief at a disadvantage.

On appeal, the decision was upheld. The Employment Appeal Tribunal noted that the existence of copyright laws was an indication of how important creative ownership is to aspects of human life and behaviour but it did not automatically follow that Ms Gray's belief had attained the level of cogency or cohesion required by the Grainger test.

It is not unusual for employment contracts to contain Intellectual Property provisions, but they should be appropriate to each individual and reviewed from time to time and on promotion. Reasonable obligations are more likely to be enforceable, even if they are questioned by the employee at the time.

For further information about restrictions in contracts or the difficult area of philosophical beliefs, contact a member of the Freeths' employment team

Are references worth the paper they're written on?

In a world of Google and social media and against a growing fear of being sued, are workplace references still as valuable as they once were? ACAS seems to think so, as it's recently updated its guidance on the subject.The guidance offers straightforward advice for employers tasked with responding to reference requests. Although some of it may seem like common sense, there are some interesting comments which warrant a little more consideration.

We all know that a reference must be based on fact and present a true, accurate and fair reflection of the subject, but did you realise that you or your company could be sued for providing a reference which fails to meet these demands?

More often than not, modern references are bland, factual and formulaic. That doesn't need to be the case, but accuracy and honesty are essential components, even if the truth is not flattering to the employee.

A claim for negligence may follow if reasonable care is not taken when preparing a reference and any false or negligent misstatement leads to a former employee having a detrimental impact on their future employment and suffering a financial loss.

If a false reference is given intentionally, the company may open itself up to a claim of defamation or even malicious falsehood where the supplier of the reference acts with malice or is reckless with the truth.

Neither of these claims will succeed where the employer believes the content of a reference is a true and accurate comment on the subject of the reference.

Care should also be taken that a reference does not in any way discriminate against or victimise the subject. The Equality Act 2010 provides protection against discrimination where the subject (or an associated person) falls under one of the protected characteristics. Even a true statement may be discriminatory, for example where dates of sickness absence are provided for a disabled employee but not for those who do not suffer a disability.References will usually be requested from the Human Resources department where they can be actively managed and monitored, but sometimes requests will go to line managers or other colleagues. Having a policy which sets out who is authorised to provide a reference on behalf of the organisation is important. Managers should be advised on how to deal with reference requests and discouraged from providing personal references and therefore assuming any liability personally or on behalf of the company.

Employers should remember that a former employee can request a copy of any reference supplied and where some employees are concerned, the least said the better. The spectre of GDPR will hang over any formal and even informal references, so reasonable care is as ever essential.

If you have any questions or concerns about what to include in a reference, or in preparing a suitable references policy, please contact the Freeths' employment team.

Autumn HR Seminar Series - mental health in the workplace

Our current series of employment update seminars focus on mental health in the workplace. This free legal update covers what HR managers should do when faced with employees suffering from mental health issues. Find out more & reserve your place.