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Employment Bulletin – May 2017

Employment Bulletin – May 2017

A raft of employment law changes have now come into effect

Several changes to employment law came into effect on 1 April...

Apprenticeship Levy

Employers with payrolls of £3m and above now have to pay a levy of 0.5% of their pay bill to help fund 3 million additional apprenticeships over the next five years.

The aim is to increase job opportunities for people aged between 16 and 24.

The annual pay bill is defined as comprising of total payments to employees that are subject to Class 1 secondary National Insurance Contributions. Employers will receive £15,000 to offset against the levy.

National Minimum Wage and National Living Wage

The National Living Wage for employees aged 25 and over has increased from £7.20 per hour to £7.50.

The National Minimum Wage Rates are:

Age Rate Increase

21 to 24 £7.05 up from £6.95

18 to 20 £5.60 up from £5.55

Under 18 £4.05 up from £4.00

Apprentice £3.50 up from £3.40

Apprentices are entitled to the apprentice rate if they're aged under 19, or aged 19 or over and in the first year of their apprenticeship.

Apprentices are entitled to the minimum wage for their age if they are aged 19 or over and have completed the first year of their apprenticeship.

Gender Pay Gap Reporting

Companies with more than 250 employees will have to publish the mean and median gender pay gaps within their organisation.

The first reports covering the current financial year will be due in April next year.

There is no duty to explain any gender pay gap that is uncovered, nor any obligation to correct it as long as the employer is complying with the Equality Act. At the moment there is no penalty for failing to publish a report although that may change in the future.

In the meantime, it's thought that the threat of reputational damage in the media that would come from failure to publish will put pressure on employers to comply and correct any anomalies. It's also thought that employers may fear that if they fail to publish, or if a large gender gap is revealed, it will deter women candidates from joining their organisations.

Modern Slavery Act

This has now come into force and affects enterprises with a turnover of £36m or more. It could also have an impact on their suppliers, even if they are relatively small businesses.

These large organisations now have to provide statements outlining the measures they have taken to ensure there is no slavery or human trafficking in their business or supply chain. The aim is to eradicate the exploitation of vulnerable people both in this country and abroad.

SMEs may also be required to provide statements if they trade with larger businesses. This is to ensure that the larger enterprises are complying with their obligations and not simply moving the issue along to suppliers or subsidiary companies.


Teacher dismissed after long illness wins discrimination claim

A teacher who was dismissed after suffering a long illness following an attack by a pupil has won her discrimination claim.

The teacher, who was a head of department, had suffered a significant stress reaction after being assaulted by a pupil in March 2011. She tried unsuccessfully to return to work in December 2011 so the school's occupational health team sought information from her concerning her prognosis.

That information was not always forthcoming and she was dismissed in January 2013. She lodged an internal appeal, which was heard in April 2013. At the hearing, she produced a "fit for work" note and other medical evidence.

However, the panel upheld the dismissal on the basis that the medical evidence was inconsistent, the prognosis not good, her return uncertain, and the note an attempt to return before her condition had been fully treated.

The employment tribunal found that the school's aims in dismissing the teacher were legitimate, but that dismissal was disproportionate for the purposes of the Equality Act 2010.

It found that the school had adduced no satisfactory evidence about the adverse impact of the teacher's continuing absence, and should reasonably have waited "a little longer" to see if she would be able to return.

It concluded that the dismissal was unfair. The school appealed successfully, with the Employment Appeal Tribunal ruling that the dismissal was proportionate, fair and not discriminatory.

The teacher took the case to the Court of Appeal, which has ruled in her favour. It held that there had been no error of law by the employment tribunal.

The case was borderline because of the length of the teacher's absence and the unsatisfactory nature of the evidence about her prognosis, but the essential point was that, by the time of her internal appeal, there was evidence that she was fit to return.

The tribunal had therefore been entitled to hold that it was disproportionate and unreasonable of the school to disregard that evidence without at least a further assessment by its own occupational health advisers.

NHS employee protects pension rights in dispute over notice period

An employee has protected her pension rights after winning a dispute with the NHS over when her contract came to an end.

The issue arose when an NHS Foundation Trust sent Sandi an employee a letter by recorded delivery on 20 April 2011 giving 12 weeks' notice that her employment would end on 15 July.

However, as the trust knew, she was out of the country on annual leave between 19 and 27 April.

Royal Mail was unable to deliver the letter and took it to the sorting office. The employee's father-in-law collected it and took it to her house on 26 April. She opened and read it on 27 April when she returned from her holiday.

The principal issue for the judge was whether the letter had been served by 26 April 2011. If it had, the notice period would have expired before the employee's 50th birthday on 20 July 2011, entitling her to a lower pension than if it had expired on or after that date.

The question was whether time was set running by the posting of the letter, its delivery to her home, or her actual receipt of it.

Clause 19 of her contract of employment read: "this employment may be terminated... by the notice period as set out in [cl.1], subject to [the trust] giving you the minimum statutory period of notice".

The judge held that cl.19 was an express requirement that any written notice had to have been received and read by the employee before the notice period could start to run. He therefore held that the notice period started to run when she read the letter on 27 April.

The Court of Appeal upheld that decision. It held that a notice had to be received before it could take effect, and there was a difference between delivery and receipt.

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