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Advisory Bulletin June 2014 update: No. 614 Workforce: Employment Relations

In this issue:

DISABILITY DISCRIMINATION: REASONABLE ADJUSTMENTS - ASSOCIATION WITH A DISABLED PERSON Case: Hainsworth v Ministry of Defence (Court of Appeal)

DISABILITY DISCRIMINATION: REASONABLE ADJUSTMENTS – SICKNESS ABSENCE Case: Griffiths v The Secretary of State for Work and Pensions (EAT)

CASE IN BRIEF: HUMAN RIGHTS AND CRIMINAL RECORD CHECKS Case: R (on the application of T and others) v Secretary of State for the Home Department (Supreme Court)

INDUSTRIAL ACTION FAQS

EXTENSION OF THE RIGHT TO REQUEST FLEXIBLE WORKING

QUEEN’S SPEECH: EMPLOYMENT ISSUES

EMPLOYMENT LAW TIMETABLE

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Welcome In this month’s Advisory Bulletin we report two cases on disability discrimination, both concerning the duty to make reasonable adjustments. The Court of Appeal in Hainsworth v Ministry of Defence concluded that the protection afforded to non-disabled employees who have an association with a person with a disability, as established in the case of Coleman v Attridge Law, in relation to direct discrimination, does not extend to a duty to make reasonable adjustments for the employee in relation to the needs of that person. The EAT in Griffiths v The Secretary of State for Work and Pensions considered the requirement to make reasonable adjustments to the operation of trigger points and the recording of disability-related sickness absence. In a decision which needs to be treated with some caution due to the availability of other forms of disability discrimination claims, the EAT concluded that the duty did not apply as the disabled employee had not been placed at a substantial disadvantage in comparison with a non-disabled employee. Looking forward, the Queen’s Speech this month set out the future plans of this government, which include a number of employment-related measures to be detailed in three separate Bills. We have provided a summary of these at this stage but we will return to them when the details become clearer as time and the legislative process progresses. For example next month we will return to a consultation exercise on a proposal to implement a scheme to recover exit payments made to senior public sector workers if they become re-employed in the same sector within 12 months. We also have our regular feature, the Employment Law Timetable with details of the more imminent legislative provisions. The extension of flexible working to all employees with 26 weeks’ service will of course be implemented from 30 June. Finally, with the announcement last week that the Unison ballot was in favour of industrial action (and those of Unite and GMB awaited), we have reissued our FAQs on strikes and related issues in anticipation of the proposed day of action on 10 July, and you can see these on pages 11-21 and on our website.

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Further information

Receiving the bulletin by e-mail

The Advisory Bulletin is available by e-mail to all local authorities and subscribers. If you have any queries about the bulletin please e-mail eru@local.gov.uk

The employment advisers

Philip Bundy, Samantha Lawrence and Kelvin Scorer will be pleased to answer questions arising from this bulletin. Please contact us on 020 7664 3000 or by e-mail on eru@local.gov.uk

Address The Workforce Team, Local Government Association, Local Government House, Smith Square, London SW1P 3HZ

Website www.local.gov.uk/employment-relations

Obtaining legislation and other official publications

Copies of legislation can be found at www.legislation.gov.uk

Key data

From 6 April 2014

SMP, SPP and SAP basic rates

£138.18 or 90 per cent of normal weekly earnings if lower

SSP £87.55

‘A week’s pay’ £464 – statutory limit for calculating a week’s pay £470 in Northern Ireland

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Contents DISABILITY DISCRIMINATION: REASONABLE ADJUSTMENTS - ASSOCIATION WITH A DISABLED PERSON The duty to make reasonable adjustments did not apply to a non-disabled employee who was seeking an adjustment to accommodate an associated disabled person’s needs, in this case the employee’s daughter. Case: Hainsworth v Ministry of Defence (Court of Appeal)

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DISABILITY DISCRIMINATION: REASONABLE ADJUSTMENTS – SICKNESS ABSENCE There was no duty to make reasonable adjustments to the operation of a sickness absence policy in relation to a disabled employee. Case: Griffiths v The Secretary of State for Work and Pensions (EAT)

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CASE IN BRIEF: HUMAN RIGHTS AND CRIMINAL RECORD CHECKS Case: R (on the application of T and others) v Secretary of State for the Home Department (Supreme Court)

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INDUSTRIAL ACTION FAQS

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EXTENSION OF THE RIGHT TO REQUEST FLEXIBLE WORKING

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QUEEN’S SPEECH: EMPLOYMENT ISSUES

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EMPLOYMENT LAW TIMETABLE 24

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DISABILITY DISCRIMINATION: REASONABLE ADJUSTMENTS - ASSOCIATION WITH A DISABLED PERSON

In Hainsworth v Ministry of Defence [2014] EWCA Civ 763, the Court of Appeal upheld a finding that the duty to make reasonable adjustments did not apply to a non-disabled employee who was seeking an adjustment to accommodate an associated disabled person’s needs, in this case the employee’s daughter.

The facts and claim Ms Hainsworth was employed by the Ministry of Defence (MOD) as a Support Development Teacher and was required to work in British enclaves based in Germany. The MOD provides facilities for the overseas education of the children of its personnel. However, those facilities did not extend to providing services which could meet Ms Hainsworth‘s daughter’s needs, who has Down’s syndrome and is a disabled person within the meaning of the Equality Act 2010 (the Act). Therefore, Ms Hainsworth submitted a formal request for a transfer to the United Kingdom, where her daughter’s needs could be met. That was rejected.

Ms Hainsworth then claimed that it would have been a reasonable adjustment under the disability discrimination provisions of the Act to have transferred her back to the United Kingdom. The main issue in this appeal was whether the duty to make reasonable adjustments applies to an employee who is not disabled, but who is seeking an adjustment to accommodate the needs of a disabled person with whom they are associated.

The law Schedule 8, Part 2 of the Act provides that the duty on an employer or prospective employer to make reasonable adjustments applies only to “an interested disabled employee”. They can be:

a person who has notified the prospective employer that they may apply for employment with them;

an applicant for employment with the employer; or

an employee of the employer.

On the face of it therefore the duty under the Act to make reasonable adjustments for an employee or prospective employee does not apply to a person who is not themselves disabled.

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Article 5 of the Equal Treatment Framework Directive

2000/78/EC, with which the reasonable adjustment provisions of the Act are intended to comply, states, “employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in or advance in employment or to undergo training unless such measures would impose a disproportionate burden on the employer”.

The employment tribunal and EAT

Both the employment tribunal and the EAT dismissed Ms Hainsworth’s claim, the EAT concluding her claim was “unarguable”. Nevertheless, Ms Ainsworth appealed to the Court of Appeal.

The Court of Appeal

The Court of Appeal dismissed the appeal

In the appeal, Ms Hainsworth claimed that Article 5 gave her the right to have adjustments made to accommodate her daughter’s needs, one of the arguments being there was nothing in Article 5 which stipulated that the person with the disability must be an employee of the employer in question. If that was correct, then following established principles the Act should where possible be read to be consistent with that reading of the Directive. If that was not possible, then as the Ministry of Defence was an emanation of the state against which the Directive had direct effect, Ms Hainsworth argued she could rely on Article 5 directly to enforce her rights.

The Court rejected those arguments finding that “the obvious and entire focus” of Article 5 of the Directive was in respect of an employer and its disabled employees or prospective employees or trainees, and there was nothing elsewhere in the Directive to suggest otherwise. Further, once it was asserted that the disabled beneficiary might be someone other than the employee, Article 5 “gives no clue” who that other person could be and so the Article becomes “hopelessly uncertain”.

As this case was about discrimination through association with a disabled person the Court also looked at the case of Coleman v Attridge Law (see Advisory Bulletin 542). In that case the European Court of Justice (ECJ) found that the direct discrimination and harassment provisions in Articles 1 and 2 of the Directive applied to prohibit such treatment against a

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non-disabled person by reason of their association with a disabled person. However, the Court of Appeal found that Coleman did not support Ms Hainsworth’s case, the ECJ in Coleman having contrasted the different protections offered by Articles 1 and 2 against those in Article 5.

Finally, the Court of Appeal commented that if Ms Hainsworth’s interpretation of Article 5 was correct, it would be doubtful whether it would then be possible to read the Act’s provisions so as to be consistent with that interpretation of the Directive. Also, it doubted whether such an interpretation of Article 5 could have direct effect because that interpretation resulted in the Article being “insufficiently precise” in terms of who it protected.

Comments Considering the relevant provisions of the Act and the Directive, the Court of Appeal’s robust dismissal of the appeal is not surprising.

That being said, many local authority employers will want to take all steps that they reasonably can to accommodate an employee’s request to change their working arrangements, so the employee can care for a disabled person. Those requests may in some cases be made by way of a formal flexible working application. Further, in the case of a woman caring for her disabled child the employer will need to keep in mind the fact that an unjustified refusal of the request, however made, could amount to indirect sex discrimination.

DISABILITY DISCRIMINATION: REASONABLE ADJUSTMENTS – SICKNESS ABSENCE

In Griffiths v The Secretary of State for Work and Pensions (UKEAT/0372/13), the EAT upheld a finding that there was no duty to make reasonable adjustments to the operation of a sickness absence policy in relation to a disabled employee.

The facts and the claim

Ms Griffiths worked for the Department for Work and Pensions (DWP) and from February 2011 to May 2011 she was off sick for 62 days suffering from post-viral fatigue syndrome and fibromyalgia. In September 2011, an occupational health assessment report stated that Ms Griffiths was likely to qualify as a disabled person within the meaning of the Equality Act 2010 (the Act). However, before that report the DWP had issued Ms Griffiths with a warning under its Attendance Policy. Under that notice, Ms Griffiths was warned that

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future sickness absence could lead to demotion or dismissal.

In June 2011, Ms Griffiths lodged a grievance in which she asserted that she was a disabled person and was seeking two reasonable adjustments. They were:

1. that the February to May absence be disregarded for the purpose of the Attendance Policy meaning the warning would be withdrawn; and

2. that the number of days’ absence that would trigger the usual Attendance Policy provisions should be increased.

The DWP rejected these adjustments.

Ms Griffiths then brought a claim, alleging that the DWP’s action amounted to a failure to make reasonable adjustments under section 20 of the Act.

The law Section 20 of the Act imposes on an employer a duty to make reasonable adjustments in three circumstances, including:

“where a provision, criterion or practice [PCP] of [the employer] puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled”.

The employment tribunal

The employment tribunal identified the PCP as being the operation of the Attendance Policy, not the policy itself. However, the majority of its three members found that there had been no breach of the duty to make reasonable adjustments. This was because those members found that Ms Griffiths had not been placed at a “substantial disadvantage” by the operation of the policy in comparison with non-disabled employees. At its simplest, the reason for that view was that the policy applied to all employees, and so all employees potentially faced the same consequences, albeit in the case of disabled employees there was discretion within the policy to adjust triggers points etc. in the employee’s favour. Therefore, the duty to make adjustments did not arise.

Even though the majority of the tribunal members had found that the duty to make adjustments did not apply,

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they went on anyway to determine that the adjustments sought were not reasonable. This was on the basis that the adjustments “would be in practice a perpetual extension of sickness absence” rather than “to assist the claimant to remain at work”.

Ms Griffiths appealed.

The EAT The EAT dismissed the appeal.

In the appeal, three main points were examined. They were:

1. the correctness or otherwise of the tribunal’s identification of the PCP (the PCP point);

2. the correctness or otherwise of the tribunal’s finding that the duty to make reasonable adjustments had not been triggered (the duty point); and

3. whether the adjustments Ms Griffiths sought were reasonable (the reasonableness point).

The PCP point The PCP point was concerned with whether the

tribunal had been right to focus on the operation of the Attendance Policy on the facts of this particular case, rather than the terms of the policy itself. The EAT found that approach was correct, noting that the policy itself did in fact contain scope for modification in the case of disabled employees.

The duty point The EAT found that the tribunal had taken the correct approach to the duty point, applying the test as set out in the case of Royal Bank of Scotland v Ashton [2011] ICR 632. That case showed that the correct comparator, to determine whether there is a substantial disadvantage to the disabled person triggering the reasonable adjustments duty, is a non-disabled person, absent for sickness reasons for the same amount of time but not for disability-related sickness. If a disabled person is treated at least as well as such a comparator, as was the case for Ms Griffiths, they cannot be at a disadvantage, let alone a substantial disadvantage.

Having made that finding the appeal failed.

The reasonableness point

Having found against Ms Griffiths on the duty point, it was not necessary for the EAT to deal with the

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reasonableness point. Nevertheless it did, commenting that it would have rejected this ground of appeal also. The reason for this was that it agreed that the tribunal had taken the correct approach. The statutory objectives of the reasonable adjustment provisions are that adjustments concern measures to enable a disabled person to return to work and to carry out their work, whereas the adjustments requested in this case were about the treatment of absence from work.

Comments At first, this decision may lead employers to conclude that they can apply their sickness absence management procedures to disabled employees in the same way as they would to a non-disabled employee. However, this case as read alone should be approached with caution, the point being that it was only brought as a reasonable adjustments claim. Had it also included a claim under section 15 of the Act then there might have been a different outcome.

The reason for this is that section 15 prohibits discrimination against a disabled person where that person is treated “unfavourably because of something arising in consequence of [that person’s] disability”, and that treatment cannot be justified as a proportionate means of achieving a legitimate aim. As the issue is one of “unfavourable” treatment there is no need to compare the disabled person’s treatment with another person, and the only issue therefore is whether the unfavourable treatment arises from the disability. In Ms Griffith’s case, she may well have been able to show that the operation of the Attendance Policy with its trigger points and warnings amounted to such unfavourable treatment. The issue then would be whether the treatment was justified.

For employers then the position remains that they should consider in each case whether the application of their sickness absence policies can be justified. Crucial to this is likely to be a focus on whether the application of the policy in each case is proportionate, balancing the adverse impact on the employee against the employer’s needs. This means in many cases the employer will need to consider adjusting the steps it takes under its absence policies. Further information on managing sickness absence is available in the LGA’s guide The Prevention and Management of Sickness Absence.

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CASE IN BRIEF: HUMAN RIGHTS AND CRIMINAL RECORD CHECKS

In R (on the application of T and others) v Secretary of State for the Home Department [2014] UKSC 35, the Supreme Court upheld the Court of Appeal’s decision in this case (which at the Court of Appeal was known as R (T and others) v Chief Constable of Greater Manchester and others), which concerned the blanket disclosure of cautions and warnings where an enhanced criminal record certificate is required. The Supreme Court agreed that this requirement was a breach of Article 8 (right to respect for private life) of the European Convention on Human Rights. For full details of this case see the summary of the Court of Appeal’s decision in Advisory Bulletin 598.

The impact of this decision is limited as the Government has already amended the legislation in this area to comply with the Court of Appeal’s decision. See Criminal Record Checks: filter system implementation and DBS update service in Advisory Bulletin 601.

INDUSTRIAL ACTION FAQS

What notice does the union need to provide to the employer before taking industrial action?

Each union must tell the employer the results of the industrial action ballot, including the total number of votes cast, the number in favour and against the strike and the number of spoiled papers. Where unions have conducted a nationally aggregated ballot they will only be required to give each employer the overall national figures and do not have to give the results for a particular employer. The results must be sent to the employer as soon as reasonably practicable after the ballot closes.

Once the results are announced each union must begin the industrial action within four weeks of the close of the ballot.

Each union must also give each employer at least seven days' notice of each period of industrial action, setting out specified information. So if the unions decide to call another strike in the future they will have to give another seven days' notice to each employer. However, this can be taken more than four weeks after the close of the ballot, provided the first day of action takes place within this period.

If the union does not comply with the notice requirements, then the industrial action will be unlawful

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and the union will lose the statutory protections that apply to lawful action.

What do we do if we have not received any formal notification from the unions about proposed industrial action?

If an authority has not received written notice of a proposed strike (or another form of industrial action) at least seven days before the action is due to commence, it should immediately write to the union's regional office seeking confirmation and evidence that the notice has been sent. This is because the union is only under an obligation to send the notice, so it may meet the obligation if it can prove it sent the notice even where the notice has not been received. In this respect the Statutory Code of Practice on Industrial Ballots and Notice to Employers suggests that the union should consider seeking evidence that the employer has been sent the information by, for example, recorded delivery.

If the union cannot provide evidence that it sent the notice the authority should seek written confirmation that it will not call its members out on strike until the required notice has been provided.

The authority should also notify all members of the union that the required notice has not been received and that any participation in the strike will be unlawful.

Where more than one union intend to take action on a particular day, the failure of one of the unions to meet its statutory notice requirements will not affect the ability of the other unions to take lawful strike action.

Is it reasonable for employers to ask their staff who are members of the unions in advance if they intend to take strike action?

Yes. Employers need to make contingency plans and to do so need to ascertain where the impact of the action will be. Therefore, it is reasonable to ask the question, but employees do not have to answer and the employer should not put pressure on them to do so.

It is worth remembering that many employees will be unsure as to whether to take action and also hopeful that the action will not be necessary. Therefore, they may not decide to take action until the day of the strike.

What about employees on annual leave on a day on which industrial action is taking place?

In the absence of evidence to the contrary, they should be deemed to be on leave and not on strike. Authorities will need to be careful about agreeing annual leave for employees requesting it just before strike action starts. Authorities may wish to have a policy of refusing requests for leave made just before a period of industrial action.

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What about employees on sick leave?

Employees who are absent on account of sickness before industrial action starts should be assumed to be on sick leave, providing that the necessary certification is produced. If the employee reports as sick on the day the action starts, the authority will need to make its own assessment, taking into account any evidence that the employee can provide as to whether they should be regarded as on sick leave or on strike.

Authorities may wish to introduce new arrangements for reporting sickness immediately before and during a period of industrial action. For example, an authority may introduce a requirement that all periods of absence should be supported by a doctor's certificate from the first day of absence. In such cases, it would be advisable for the authority to offer to pay for any charge made by the doctor to ensure that the change in the sickness reporting arrangements are seen to be fair and reasonable in the circumstances.

Such a policy should be introduced in advance of any dispute and authorities should avoid, at all costs, knee-jerk reactions to absences during industrial action.

In terms of Statutory Sick Pay (SSP), employees who are absent from work through illness before a stoppage of work retain their right to statutory sick pay (SSP) during the period of industrial action provided they take no active part in the dispute. Where, however, an employee is away from work because of a trade dispute when their sickness begins, they are excluded from SSP, except where he or she has no ‘direct interest' in the dispute and has not participated in it at any time.

If an employee returns to work after industrial action and then goes off sick, the average earnings for SSP purposes will reflect the lower earnings during the action, as SSP payments are based on earnings during the previous eight weeks of employment.

What if, due to the closure of a school due to industrial action, an employee needs to take time off to care for their dependent children?

In these circumstances, a combination of paid and unpaid leave may be appropriate depending on the employer's policy on leave for dependants.

The statutory right to take time off to deal with events regarding dependants in respect of school closures may also apply here (see section 57A of the Employment Rights Act 1996). That right applies to unexpected events, but does not provide the right to take extended leave, only the right to take off what

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time is reasonable to allow the employee to deal with the event, and there is no right to be paid for the leave.

In the case of Royal Bank of Scotland v Harrison (see Advisory Bulletin 544) the EAT found that the ‘unexpected' requirement did not mean that the right was limited to events where the employee had little or no notice of the event in question. Therefore, in the event of any school closure, it could apply even where the employee is given relatively long notice of the school closure. However, the EAT did note that the greater notice an employee has, the greater the time the employee has to explore alternative arrangements to deal with the event. Therefore authorities may want to tell employees whose childcare arrangements may be disrupted by school closures which are known about in advance that they should take reasonable steps to make alternative arrangements for childcare, and it is only where reasonable alternative arrangements cannot be made that the statutory right to time off may apply.

Can I reallocate work to staff not taking part in the action?

In some cases employees may be willing to carry out the work of those taking part in industrial action, particularly where it will assist in maintaining essential services, and employers will want to reallocate work accordingly. However, the authority will not wish to endanger goodwill with those staff not participating in industrial action by giving them additional duties that are either unreasonable or which they are not competent to perform.

Where employees do not agree to cover striking employees’ work, they cannot be required to perform alternative work if it does not fall within their contract of employment, unless it is reasonable for the employer to ask them to do so.

The reasonableness of a request may be difficult to define. However, the appropriateness of the work in relation to the employee's current duties, position and skills/qualifications can be taken into consideration. In addition, a request to undertake additional duties is more likely to be considered reasonable if the work is necessary to prevent a breach of an authority's statutory duty or is vital to service provision. The fact that the work is normally carried out by staff involved in the industrial action will not in itself make a request to cover the work unreasonable.

If the request is reasonable, the refusal by a non-

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striking employee to undertake the work may entitle the employer to regard them as being party to the industrial action. However, as mentioned above, authorities may wish to act sensitively to maintain the goodwill of staff not taking part in the dispute.

Can an employer recruit people to cover the work of striking workers?

Yes. An employer is free to run its own organisation and to act to maintain the services it provides; this includes the possibility of recruiting employees to cover the work of striking workers. However, where the action is of a short-term nature and where the unions have indicated that they will not withdraw employees from the most essential services, for most areas of an authority's business such recruitment may not be necessary or feasible.

Can an employer use agency workers to cover the work of striking workers?

Employers are unlikely to be able to source workers via this route. This is because regulation 7 of the Conduct of Employment Agencies and Business Regulations 2003 provides that an agency acting as an employment business may not supply a temporary worker to a hirer to replace an individual taking part in lawful industrial action or to perform the work of someone who has been transferred by the hirer to perform the duties of the person on strike or taking industrial action, unless the agency does not know or has no reasonable grounds for knowing that official strike action is in progress.

Do we have to keep all workplaces open?

It will be for each authority to decide whether to keep all its workplaces open. In some cases it may be that for health and safety or other practical reasons the most sensible decision will be to close a building or school.

What happens if we have to close a building?

If the authority decides to close a particular workplace it will need to consider how it will manage employees who do not wish to take part in the strike. The authority may be able to agree in advance alternative working arrangements. In some cases it will be appropriate to advise employees before the strike that those who wish to report for normal duties should report to an alternative council building that will be open and to contact their line manager (or appointed person) to confirm their presence. If the authority or governing body cannot find an alternative location or allocate alternative duties, the employee should be sent home with full pay. If so, it may be possible for the employee to carry out work from home.

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What are the health and safety duties during industrial action?

The operation of health and safety legislation is not suspended during a period of industrial action. Employers will continue to have a statutory duty to provide a healthy and safe work environment for all employees who remain at work and other people in the workplace. The employer, however, will have no obligations in respect of employees absent from work due to strike action.

Where industrial action is planned, an employer will need to consider what the health and safety consequences will be. Risk assessments should be reviewed and, if necessary revised. Specific action may need to be taken. For example, authorities may need to come to some arrangement with employee representatives to ensure essential safety measures are carried out before industrial action takes place. During industrial action short of a strike, and where employees remain at work, risks may arise from inadequate supervision or the failure to carry out essential maintenance or safety procedures. Again it may be necessary for employers to discuss these matters with representatives of the workforce.

Employees also have a duty under health and safety legislation to take care of their own health and safety, as well as that of colleagues remaining at work. This could include maintaining or co-operating in the maintenance of safety equipment up until the time any strike action occurs. For example, an operator of a dangerous machine could be in breach of their own legal obligations if they go on strike without taking reasonable measures to ensure that the machinery can be safely left unattended.

Finally, there is a duty on all persons, regardless of their employment status, to not intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare.

What are the rules on picketing?

Picketing is an indirect form of industrial action that is protected by immunities from legal proceedings in the same way as other industrial action. In order to retain immunity from legal proceedings, pickets must:

be peacefully obtaining or communicating

information, or;

be peacefully persuading any person not to work, and

be picketing at or near their place of work -

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flying pickets are unlawful, and

not committing any other unlawful act, such as nuisance, trespass or obstruction.

Is there a limit to the number of pickets allowed?

The Code of Practice on Picketing contains advice on picketing including a suggestion that the number of those picketing should be restricted to six at any exit or entrance from a workplace. The Code itself imposes no legal obligations but provides general guidance and good practice and where relevant its provisions would be taken into account by any court or tribunal when assessing the lawfulness of picketing.

What about employees who are not directly involved in the strike action who refuse to cross a picket line?

Such employees can normally be regarded as being on strike and treated accordingly. Occasionally, however, employees may be willing to cross picket lines, but are reluctant to do so for fear of their safety. In such circumstances, the authority should try and ensure that the employee is given every protection in crossing the picket line or, where practicable, is given the opportunity to work at another establishment. If the authority considers the employee has made every effort to cross the picket line, but was unable to do so, then the authority may decide not to treat their absence as industrial action.

What can an employer do if pickets behave in an intimidating manner?

If pickets behave in an intimidating manner to the extent that it can no longer be considered as peaceful action, the picketing will be unlawful. This means the employer can apply to the courts for an order to prevent or stop the picketing, and, ultimately, also make a claim for damages arising from the unlawful picketing. However, in the case of a one-day strike, applying for a court order is unlikely to be practical and making clear to those picketing that they are at risk of a claim for damages may be a better approach.

The conduct of the picket may also amount to a criminal offence, meaning the police have discretion to take what measures they may reasonably consider may be necessary to ensure that picketing is peaceful and orderly. Ultimately, therefore, in serious cases the authority may want to involve the police. However, as a first step, authorities will want to tell pickets the potential consequences of their actions, as in many cases that will restore peaceful picketing.

Further details of the steps an employer can take are in the Code of Practice on Picketing.

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Can we deduct pay from employees on strike?

Deducting pay is not a punishment for taking strike action. Strike action by an employee is a breach of their employment contract and therefore an employer is entitled to deduct the appropriate amount of pay.

How much pay can we deduct from someone on strike?

In the absence of a contractual agreement to the contrary, the level of damages should be calculated by assessing the loss arising from contractual duties that were not performed. The courts have held that the correct measure of loss should be arrived at by dividing the annual wage by the number of working days.

Therefore, the correct deduction for a worker who works a five-day week is 1/260th of annual salary for salaried staff or 1/5th of a week's wage for weekly paid staff for each day of strike action. (Note that the calculation for schoolteachers employed on Burgundy Book terms is different - see below.)

Authorities should apply the same principle when calculating the appropriate deduction for staff that work different normal working hours.

For instance, where an employee works a three-day week, if the strike falls on one of their working days and they take strike action they should be deducted 1/156th of annual salary.

For other working patterns closer scrutiny will be required. The principle is to deduct the amount the employee would have earned on the day if they had been working normally.

If employees work a pattern which means they are not scheduled to work on the strike day then no deduction will be appropriate.

Should there be strike action of less than a day, such as a one-hour strike, authorities should calculate the hourly rate of pay and make the appropriate deduction.

In relation to schoolteachers on Burgundy Book terms, the Court of Appeal has confirmed that paragraph 3.2 of Section 3 of the Burgundy Book should apply, which provides that the pay deduction for a day of 'unauthorised absence' (e.g. strikes) should be 1/365th of annual salary.

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Is it appropriate to deduct payments in addition to normal basic pay?

Employees taking strike action are in breach of contract on those days. It is therefore permissible to deduct relevant allowances payable insofar as they relate to that day, e.g.:

• shift allowances or unsocial hours payments: these are normally enhancements for working shifts or unsocial hours. Therefore, if appropriate these can be deducted in so far as they relate to the day of strike action.

• essential user car allowances: these are paid in exchange for providing a car. The car is not available on the strike day and therefore employers may consider making an appropriate deduction.

Employers should take a view locally on what deductions will be made and if possible advise employees and local union representatives in advance of the action.

What if the industrial action consists of partial performance of duties as opposed to full strike action?

It is possible that in some instances industrial action could consist of partial performance of duties. In addition local exemptions and agreements may have been negotiated to avoid disruption to essential services. In such cases this could also result in examples of partial performance of duties.

In principle an employer is able to refuse partial performance of the employment contract and insist on all elements of the contract being performed. If the employer makes it clear that partial performance will not be accepted then it can deduct full pay regardless of how much work the employee performs. However, if the employer accepts partial performance as a result of negotiations to continue certain essential duties, or otherwise makes it clear that partial performance is acceptable (by for example continuing to allocate work) then it will only be able to deduct a reasonable amount of pay to reflect the element of the duties not performed.

Employers should act reasonably in such cases as employees are able to counter claim for breach of contract in the courts. Deductions arising from industrial action fall outside of the remit of the unlawful deduction from wages provisions of the Employment Rights Act 1996 and so cannot be brought in an

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employment tribunal unless the employment has ended.

Can we discipline an employee for taking part in the strike?

Under normal circumstances, a breach of contract on the part of an employee will result in disciplinary proceedings. However, such action is generally inappropriate in cases of industrial action and authorities are recommended against it.

However, acts of misconduct during the strike should be subject to normal disciplinary procedures. For example, violence, intimidation, harassment or damage to property.

Where employees take part in unofficial industrial action they are not protected and so disciplinary action may be taken.

What effect does strike action have on pension contributions?

As far as the Local Government Pension Scheme is concerned, absence on strike for a day or more will, subject to the following, not count as pensionable service.

The employee can, however, buy back the amount of pension lost by choosing to pay extra contributions, known as Additional Pension Contributions (APCs). Payment may be by regular deductions from pay, a lump sum deducted from pay or a lump sum paid directly to the pension fund administering authority. Those members who are a year or less from their Normal Pension Age (or those members over their Normal Pension Age but under age 75) may only pay by means of a lump sum (either from pay or direct to the pension fund administering authority). If a member of the LGPS has pre 1 April 2014 membership of the Scheme and buys the entire lost pension then the period relating to the lost pension will be included when calculating the pension protections provided for such members when the LGPS moved from a final salary scheme to a career average (CARE) scheme on 1 April 2014 i.e. will count towards the underpin calculation (which ensures older members are no worse off than if they had remained in the final salary scheme), rule of 85 protections (for those who were in the scheme on 30 September 2006) and when calculating the member's final pay for benefits relating to their pre 1 April 2014 membership.

However, whether or not the employee pays APCs to buy back the pension lost during the strike period, the employee must continue to pay contributions under any pre-existing Additional Regular Contributions

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(ARCs), Additional Pension Contributions (APCs), Additional Survivor Benefit Contributions (ASBCs), added years or part-time buy-back contracts and can continue to make any Additional Voluntary Contribution (AVC) payments. For further information on the pensions implications of a strike day please see www.lgps2014.org.

There is no provision in the Teachers' Pension Scheme for teachers to buy back strike days. Further information can be found on the Teachers’ Pensions website.

Does strike action break an employee's continuous service?

Where an employee takes part in strike action this does not break their period of continuous service. However, their continuous service is effectively suspended which has the effect that their period of continuous service is postponed and does not include those days. This has potential implications for statutory qualifying periods and calculation dates for e.g. unfair dismissal and redundancy rights, although for most employees the effect will be negligible, particularly in the case of a one-day strike.

EXTENSION OF THE RIGHT TO REQUEST FLEXIBLE WORKING

The right to request flexible working will be extended from 30 June to all employees with 26 weeks’ service (see Advisory Bulletin 595 and The Flexible Working Regulations 2014). The statutory procedure to consider requests will also be removed, and will be replaced with a more general duty to consider requests in a reasonable manner. However, there will be a requirement to notify the employee of the outcome of their request within three months of the application or such longer period as is agreed.

The statutory Code of Practice on Handling in a Reasonable Manner Requests to Work Flexibly and the Acas guide, Handling Requests in a Reasonable Manner to Work Flexibly are available on the Acas website. Both of these explain what dealing with requests ‘in a reasonable manner’ means in practice.

QUEEN’S SPEECH: EMPLOYMENT ISSUES

A number of employment-related measures were announced in the Queen’s Speech on 4 June. These will be contained in three separate bills.

Small Business, Enterprise and Employment Bill

This Bill which has now been published includes measures to tackle abuse of the National Minimum Wage and zero hours contracts and new duties in relation to whistleblowing. There is also a proposal that

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will require higher paid public sector employees to repay redundancy payments if they return to the same part of the public sector within a short period of time. Finally, delays in the functioning of employment tribunals and enforcement of awards will also be addressed.

Whistleblowing Clause 135 makes provision for regulations to be produced requiring a prescribed person to publish a report on disclosures made to that person by workers.

Penalties for failure to pay settlement sums and sums ordered by employment tribunals

An Enforcement Officer will be able to issue a warning notice to an employer warning that a penalty will be imposed if the sum is not paid within a specified period of 28 days. If the sum remains unpaid the Enforcement Officer will issue a penalty notice requiring the employer to pay a financial penalty to the secretary of state. The penalty will be 50% of the amount outstanding with a minimum of £100 and a maximum of £5000. The employer will be able to reduce the penalty by 50% if it pays the amount outstanding and the reduced penalty within 14 days. There will also be a facility for the employer to appeal against a penalty notice.

Employment Tribunal delays

The Bill will allow regulations to limit the number of postponements, which can include adjournments, that will be allowed and a requirement for a tribunal to consider making an award for costs or expenses against the party that asked for the postponement.

Zero hours contracts Following the consultation on the use of zero hours contracts the government continues to recognise their place offering flexible working opportunities in today’s labour market. However, it intendeds to ban exclusivity clauses which will mean employees retain the freedom to find work with other employers, and accompany this with other measures to improve information about the use of such contracts and prevent rogue employers evading the ban.

Reclaiming public sector exit payments

The government proposes to implement a scheme for recovering exit payments paid to public sector employees in the event of redundancy or other contract termination if they find employment back in the same sector of employment within 12 months. At the point of publication of this bulletin HM Treasury issued a consultation paper seeking views on its proposals by 17 September. We will provide more information on the proposals and the consultation

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exercise in our next Advisory Bulletin.

Childcare Payments Bill

This Bill will introduce a new scheme which will provide basic rate tax relief on money spent on childcare for children under 12, or 17 if the child has disabilities, up to a maximum of £2,000 per year for each child. For every £8 that a parent pays for childcare, the Government will contribute £2. This will mean that the self-employed and those parents who work for organisations which do not currently offer Employer Supported Childcare (ESC) will benefit from Government support for childcare costs.

The scheme would repeal ESC, the system that currently provides financial assistance for parents with their childcare costs. However, those parents who are already registered for this when the Tax-Free Childcare scheme starts in autumn 2015 will be able to continue using it for as long as their employer offers it.

The Bill would set out the conditions that a parent must meet in order to qualify for Government top-up payments. These are that:

the person is at least 16 years old;

the person normally lives with and is responsible for the child (whether or not they are the child’s biological or legal parent);

the person lives or works in the UK;

the person, and their partner if they have one, is in paid work, either as an employee or self-employed, and must earn more than the amount earned working eight hours a week at national minimum wage (there are grace periods for those setting up a small business);

the person’s income, and that of their partner if they have one, does not exceed the level at which they become liable to pay income tax at the additional rate (currently £150,000 per year); and

the person, and their partner if they have one, is not claiming Universal Credit, or in receipt of other publicly-funded support for their childcare costs.

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For details of the Government consultation on the design and operation of this new scheme see Advisory Bulletin 604

Modern Slavery Bill

The Bill would create a statutory duty for public bodies including the police, local authorities and immigration personnel to notify the National Crime Agency about potential victims of modern slavery.

EMPLOYMENT LAW TIMETABLE

We set out some of the key employment law developments to look out for over the coming months.

From 30 June Right to request flexible working extended to all employees with 26 weeks’ service.

From 1 Oct 2014 Prospective fathers and the partners of mothers to be will be able to take time off to attend two ante-natal appointments.

From Late 2014 Introduction of the DWP Health and Work Service

From April 2015 Parental leave to be extended to parents of a child under 18 years.

Introduction of Shared Parental Leave

Adoption pay to be increased

Surrogate parents eligible for adoption leave and pay