NASHKNOWLEDGESEPTEMBER 2021

CONTENTS

- Anti Social Media

- Question of the Month - Do tips have to be fair?

- Vaccines in care homes

- A different type of furlough claim

- Interesting cases and important legislation ahead

- Rates and limits

Contact the Employment team on 01752 827081 or email employment@nash.co.uk

Or click to visit us at https://nash.co.uk/business/employment-law-team/

Anti Social Media

Hope Cove, Devon

By way of background, theClaimant in the case of Rathod vPendragon Sabre Limited, MrRathod, worked as a salesman inPendragon’s Porschedealership.  The atmospherewithin the dealership was, to saythe least “laddish”, involvingnumerous crude and immaturejokes between the sales people:there were conversations whichwere sexualized, and activitiestook place such as food fightsand wrestling.  The Tribunalfound that there were deliberateand aggressive expressions ofmisogyny and hostility towardshomosexuality and racism in theworkplace.

Anti Social Media

A recent first instance Tribunal case has emphasized the importance of consistency oftreatment amongst staff, as well as suggesting that a social media policy can be importantwhen seeking to regulate non work-related messages.

The Employment Tribunal Judgefound that Managersparticipated in some aspects ofthe culture in which Mr Rathod, aBritish Asian, found himselfwhen he joined the Respondentin 2018.  In his attempts to fit in,the Employment Tribunal foundthat Mr Rathod had begun tomirror the behaviour of hiscolleagues and, in somecircumstances, made theinappropriate jokes first in orderto get to the joke before hiscolleagues did.

Mr Rathod was repeatedlyreferred to as “Chapati andPoppadom” and on one occasiona sales team member threw abanana on the floor in thepresence of Mr Rathod’s son,saying “I want to see how hereacts”.

Following lockdown, Mr Rathodset up a new WhatsApp groupentitled “Porsche SuttonColdfield” and introduced it withthe post “Just thought I’d set upthis group whilst COVID 19 isaround”.  Whilst the groupincluded colleagues, includingtwo sales managers, it did notinclude the wider workforce,especially the female membersof staff.

After three months of furlough,Mr Rathod returned to work andraised with his manager that hewas uncomfortable with some ofthe banter in the workplace: hewas advised to speak to theteam and tell them how he felt.

In September 2020, whilst absentdue to stress, anxiety anddepression, Mr Rathod raised agrievance that various colleagueshad racially harassed him at work,including a specific allegationagainst a colleague, referred onlyin the judgment as “O” or “Oliver”.

Following the grievanceinvestigation, which upheld anumber of Mr Rathod’scomplaints and found evidence ofwidespread inappropriatebehaviour, disciplinary action wasstarted against Oliver in respect ofracial harassment towards MrRathod.  Oliver swiftly resigned;however, Oliver defended hisactions in the workplace on thebasis that he and Mr Rathod werefriends and Mr Rathod behaved inthe same way.  Oliver provided anumber of WhatsApp messagesbetween he and Mr Rathod which,at best, could be considereddeeply inappropriate: crude sexualreferences, suggestions of fellatio,a reference to taking drugs usingthe bodies of governmentministers as a table, and a racistmeme.

Crucially, however, Oliver did notsuggest that these messageswere offensive to him: he hadreferred to them in the context ofthe type of relationship he hadwith Mr Rathod.

Having reviewed the messagesand investigated with Mr Rathod, adisciplinary meeting was convenedwith Mr Rathod on the grounds ofracial harassment and sexualharassment towards Oliver.Following which the employerfound it had “no alternative” but tosummarily dismiss Mr Rathod.  Aseveryone knows, there is always analternative to dismissal.

The gravity of the communicationswere such that, within theworkplace, any employer wouldlikely have considered dismissal,so why did the EmploymentTribunal find the dismissal wasunfair?

Firstly, given that Oliver had not atany stage said that he found themessages offensive, and did notgive evidence at the hearing, howcould the employer determine thatMr Rathod’s behaviour amounted toharassment?  How could they knowthat the messages violated Oliver’sdignity or created an intimidatingenvironment?  Oliver had not saidthis, nor had he suggested this; infact, he had provided the messagesto show the good relationship thathe and Mr Rathod had.

Secondly, the employer had reliedupon its dignity at work policy;however, this required some actionby an employee, for example a

complaint, to activate; Oliver hadnot complained about Mr Rathod’sbehaviour, so how could theTribunal determine that Oliver’sdignity had been impacted?

Thirdly, the messages were notpublic messages: they wereprivate messages between activeparticipants in a private group.Had the employer wished toregulate this behaviour outside ofits normal equality policies, itshould have put in place anacceptable use policy for socialmedia.

Finally, and to our minds, mostimportantly, the employer claimeda “zero tolerance” approach to thebehaviour exhibited in themessages sent by Mr Rathod;however, having found that thisbehaviour was endemic in theworkplace, it had not dismissedanyone else.  How could MrRathod’s behaviour be sounacceptable as to amount togross misconduct, when no actionwas required against others whohad engaged in similar behaviour?

Our Comment

So what does this case tell us?  Firstly, always remember that youhave a choice when determining a disciplinary sanction: tosuggest that there is no alternative smacks ofpre-determination of the outcome; secondly, make sure that thewording of the allegations is legally correct: if you are referring toharassment, does it meet the definition of harassment, or is itsimply unacceptable behaviour; thirdly, if an employer is seekingto moderate behaviour which is not directly linked to theworkplace, ensure that there is a policy in place setting out whatthe unacceptable behaviours are; finally, and most importantly,remember that consistency in disciplinary decisions is key: if youtreat individuals differently for the same misconduct, you betterhave a very good reason as, otherwise, you are likely to be on thewrong end of an unfair dismissal finding.

This is an interesting question,and the answer is likely to evolvewith new legislation which hasbeen proposed.

At the moment, however, there isno legal guidance on how tipsshould be distributed and theyare, instead, regulated by anycontractual terms or agreementsbetween the employer andemployee. If there is no expressagreement, then the distributionand use of tips would likely begoverned by what has happenedin the past.

Whilst it might seem unfair thatan employee can only purchasecompany products with theirtips, at the moment, there isnothing to stop an employerdirecting how tips should beused. If we think of it as youbuying a member of bar staff adrink, as a customer, you’dexpect that individual to buythemselves a refreshing drinkwith your shiny two-pound coin,rather than popping to Primarkto buy a scrunchy with it thenext day; so it is not a newphenomenon that tips are

directed to be used in a specificway. Remember though, that theemployer should be taxing thetips as income, so a recordshould be kept.

But things are changing: in theQueen’s Speech, back in October2019, the government proposeda bill to make it a legalrequirement for all tips andservice charges to be passed onto staff and for the tips collectedby employers to be distributedfairly and transparently. Luckily,there will also be statutoryguidance setting out theprinciples of the fair distributionof tips, so hopefully the conceptof “fairly” won’t be as subjectiveas it might otherwise have been.Whist it is now nearly two yearssince it was announced, thegovernment has confirmed itscommitment to this policy, sowatch this space.

QUESTION OF THE MONTH

Do tips have to be fair?

Is it legally correct to calculate the tips due to workers at the end of their shift, and then directthem that the tips can only be used to purchase the Company’s products and that the purchaseshave to be consumed on the premises, and on the same day as the tips were earned?

What Does the Law SayDespite some concerns thatwere raised in Parliament, thedraft legislation has now beenapproved meaning that anyonedeployed in a care home inEngland with residents aged 65or over, which is registered withthe Care Quality Commission,must be fully vaccinated againstCovid-19 unless they areexempt. This law, onceimplemented, will affect around15,000 care homes.

The new regulations have beenfast tracked through Parliamentand the requirement to be fullyvaccinated will come into forceon 11 November 2021.

From November, it will be arequirement for people workingin CQC (Care QualityCommission) care homes inEngland to have beenvaccinated against Covid-19. Wetake a look at how theGovernment arrived at thisdecision and what it means forthose affected.

The ConsultationIn April 2021, the Department ofHealth and Social Care launchedan open consultation seekingviews on making vaccination acondition of deployment. Themajority of those consulted,

57%, did not support theproposal; however, 76% of carehome providers were particularlysupportive of the plans.

The Government’s decisionconsiders the consultation andfollows advice from theScientific Advisory Group forEmergencies (SAGE) that statesthat 80% of staff and 90% ofresidents must receive at leastone dose of the vaccine in orderto provide a minimum level ofprotection. The Government’sown figures show that only 65%of care homes in Englandcurrently meet that target.

Vaccines in care homes

I am sure we are all fed up with Covid-19 news by now, considering it has been circling theglobal news channels for well over 18 months; however, the new legislation being passed bythe UK Government was far too important not to make Nash Knowledge this month.

Who is Affected?In short, everyone carrying out theirjobs. The regulations require thatall CQC registered serviceproviders (or registered managers)of accommodation for those whorequire nursing or personal care ina care home must ensure that aperson does not enter the carehome unless one of theexemptions apply (see below). Thismeans that it is not just employeesthat are affected but job interviewattendees, volunteers, agencyworkers, CQC inspectors andtradespeople, such as hairdressersor beauticians that must be fullyvaccinated.

The rules do, however, only applyto people who go inside of a caresetting, so as long as someone isnot entering the building, theywould not need to showvaccination status.

The registered person, who isregistered with the CQC as amanager or service provider, isresponsible for ensuring thateveryone entering is eithervaccinated or exempt.

What are the ExemptionsFirstly, visitors are not affected. Afriend or relative, whilst advised toget the vaccine, is not required tobe vaccinated. Similarly, theresidents themselves are notrequired to be vaccinated.In terms of those deployed withina care home, the exemptions arefairly restricted and predominantlyfocus on medical grounds.

However, other exemptionsinclude that it is reasonablynecessary for the person toprovide emergency assistance(for example, members of thepublic assisting with fires, floodsor safeguarding concerns), urgentmaintenance (fixing gas, electricor water supply etc.) andemergency services carrying outtheir duties.

Finally, persons aged under 18 arenot required to be vaccinated.

Proving Vaccination orExemptionCurrently the NHS are consideringhow an NHS Covid Pass (CovidPassport) service could be usedto demonstrate and checkvaccine status, however, for themoment persons can use theNHS App, the NHS website or theNHS Covid Pass letter todemonstrate their vaccine status.Importantly, a person’s NHSappointment card cannot be usedas proof of vaccine status.

This claim has not beendetermined at a final hearingyet, but it is interesting to notethe Judge’s comments at apreliminary hearing which wasto determine whether MrJiminez could amend his claimto include this point – spoiler, itwas allowed.

The Judge commented that hebelieved the Respondent’sposition on furlough was wrongand that Mr Jiminez could havebeen furloughed. TheRespondent argued that it wasan honest mistake and thatother employees on long-termsick at the time were treated inthe same way as Mr Jiminez. Ifthe Respondent’s position iscorrect, that will be evidencethat Mr Jiminez was not subjectto detrimental treatment (notbeing furloughed) because ofhis bringing of an Employment

A recent Employment Tribunaldecision, however, hasintroduced the potential of anew kind of furlough claim – theargument that an employeewas victimised by not beingplaced on furlough.

The case concerned is Mr BJiminez v Firmdale Hotels Plc(Case Number: 2203194/2020).

Mr Jiminez brought a claim fordiscrimination against the HotelRespondent in 2018. It isaccepted by the parties that thebringing of that discriminationclaim constituted a protectedact for the purposes ofvictimisation legislation.

In order to succeed with a claimfor victimisation, a Claimantmust show that there was botha protected act, and that theywere subject to detrimentbecause of that protected act.The detriment alleged by MrJiminez was not beingfurloughed from March 2020.

The Respondent accepts that itdidn’t furlough Mr Jiminezbecause he was on long termsick, not on SSP and was not‘eligible’ for furlough –additionally, the Respondentlater said it was because it wasnow too late to furlough MrJiminez since he had not beenfurloughed before June 2020.

A different type of furlough claim

As we all predicted, we are witnessing a flurry of ‘furlough’ related Employment Tribunalclaims; however, they normally relate to unfair dismissal – the argument that an employeewho was made redundant should have been furloughed instead.

Tribunal claim (the protectedact), as other persons, who didnot bring a protected act, weretreated the same.

Whilst it doesn’t appear that MrJiminez will succeed with a claimfor victimisation, it does pose thequestion, does Mr Jiminez had avalid point and has he simplymislabeled his claim? Notfurloughing employees becausethey are on long-term sick, whenthey could have been eligible forfurlough and thus be entitled to

furlough pay as opposed to nilpay (given SSP had run out) isarguably discriminatory towardsdisabled employees (providedthey can meet the definition ofdisability). It remains to be seen,therefore, whether Mr Jiminezrelabels his claim (and the Judgehas hinted at this), in which caseit will rest on whether theRespondent’s treatment can beobjectively justified – a matterwhich, we think, they will strugglewith.

Do you have anyspecific employment lawquestions that you want

answers to?In future editions of Nash Knowledge, we’ll take at least

one question that we’ve been sent, and we’ll publish a fullanswer and explanation.

So, now’s your chance to ask that employment lawquestion that you’ve always wanted an answer for! We’re

happy to keep it anonymous if you prefer!

Just email us your question to marketing@nash.co.uk bythe 20th of each month, and we’ll pick the best one that

we’ve been sent. The answer will be in the followingmonth’s edition!

#AskNash #AskUsAQuestion

Interesting cases on the horizon

Flisher v Kent County Council- awaiting Employment Tribunal hearingWhether a foster carer is a worker so as to be able to bring claims for holiday pay.

Harpur Trust v Brazel- awaiting Supreme Court hearingConcerns calculation of holiday pay for part-time term-time workers

Lee v Ashers Baking Co Ltd and others- awaiting hearing date for European Court of Human RightsWas it discriminatory for Christian bakers to refuse to provide a cake saying “Support Gay Marriage”to a gay customer?

Mackereth v The Department for Work and Pensions- awaiting hearing date for EATWhether it was correct to find that a doctor was not discriminated against on the grounds ofreligion or belief when he was suspended and dismissed for refusing to address transgenderpatients by their chosen pronoun.

Pitcher v Oxford University (conjoined with Ewart v Oxford University)- waiting to be heard at EATWhether the employer had a legitimate aim when implementing a retirement policy of 67 years. TheET came to different conclusions in the two cases.

Chell v Tarmac Cement and Lime- waiting to be heard in Court of AppealWhether an employer is vicariously liable for the consequences of an employee’spractical joke in the workplace.

Important legislation changes ahead

2021Pay: all tips to go to workersNew legislation is to be drafted to ensure that all tips left to workers for example in bars andrestaurants will be paid to the workers in full.

Employment BillWill the Employment Bill, announced in the Queen’s speech in December 2019, be brought in?

Whistleblowing Directivethe UK is now not obliged to implement this Directive which would require public and privateorganisations with more than 50 employees (or financial services organisations) to set up internalreporting channels that would allow people to report within the organisation itself. Implementationof this Directive will depend on the government’s willingness to extend these protections and toalign with EU standards.

Compulsory VaccinationsFrom 11 November 2021 there will be a legal requirement for care home staff in England to be fullyvaccinated against Covid-19, unless they have a medical exemption

And beyond ……The right to shared parental leave and pay is potentially to be extended to working grandparents,which could be interesting.

National Minimum Wage from 1st April

Workers aged 25 or over (the National Living Wage): £8.91 per hourWorkers aged 21 to 25: £8.36 per hourWorkers aged 18 to 21:£6.56 per hourWorkers under 18: £4.62 per hourApprenticeships: £4.30 an hour

Family Rights

From 5 April 2021, the rates for Statutory Maternity Pay, Statutory Paternity Pay,Statutory Adoption Pay and Statutory Shared Parental Pay will all increase to£151.97 (and from 6 April 2021, Maternity Allowance will increase to the sameamount).

Taxation: ScotlandIn Scotland, for the tax year 2021/22:Scottish Starter Tax Rate of 19% applies on annual earnings above the PAYEthreshold and up to £2,097Scottish Basic Tax Rate of 20% applies on annual earnings from £2,098 to £12,726Scottish Intermediate Tax Rate of 21% on earnings from £12,727 to £31,092Scottish Higher Tax Rate of 41% on annual earnings from £31,093 to £150,000Scottish Top Tax Rate of 46% on annual earnings above £150,000

Taxation: UK (Excluding Scotland)In the UK (excluding Scotland), for the tax year 2021/22:Basic Tax Rate of 20% applies on annual earnings above PAYE tax threshold and upto £37,700Higher Tax Rate of 40% applies on annual from £37,701 to £150,000Additional Tax Rate of 45% applies on annual earnings above £150,000

RATES AND LIMITS (April 1st 2021-March 31st 2022)

Sick Pay

From 6 April 2021, the rate for Statutory Sick Pay will increase to£96.35 per week

RATES AND LIMITS (Continued)

National Insurance

The lower earnings limits in respect of primary class 1 contributions is £120 per week.

The upper earnings limit for primary class 1 contributions is £967 per week.

Auto EnrolmentThe minimum contribution rates for defined contribution schemes, expressed as apercentage of a job holder’s qualifying earnings, is 3% for employers and 5% for employees.

Vento Bands

Injury to feeling and psychiatric injury:

Lower Band of £900 to £9,100 (Less serious cases)

Middle Band of £9,100 to £27,400 (cases that do not merit an award in the upper band)

Upper Band of £27,400 to £45,600 (The most serious cases), with the most exceptional cases capableof exceeding £45,000)

Statutory Minimum NoticeStatutory or Contractual Notice?There are two types of notice period: statutory and contractual. Statutory notice is the minimum legalnotice that can be given.

Length of Employment Notice required from employer

Under 1 month No statutory notice requirement

1 month to 2 years 1 week

2 years to 12 years 1 week for each completed year of service

12 years or more 12 weeks

Limits

Maximum amount of a week's pay (used for calculating a redundancy payment orfor various awards including the unfair dismissal basic award): £544

Limit on amount of unfair dismissal compensatory award: £89,493

Maximum guaranteed payment per day: £30