SEPTEMBER 2010
Having acted for clients in the hotel and leisure industry for many years, the Employment Department at Goodman Derrick LLP recognises that this sector is heavily reliant on the proper performance of its staff. This bulletin aims to address, in a practical way, some of the issues which commonly arise in this sector and to give realistic guidance on how to reduce the risk of employment related litigation.
LEGAL UPDATE
Equality Act
The Equality Act 2010 is potentially the most important piece of employment legislation due to come into force this year. The majority of its provisions will have effect from October 2010. Its main aims are to harmonise existing discrimination laws and to promote equality. Employers should ensure that they familiarise themselves with the new provisions. We intend to provide a fuller update on the Act later in the year.
Retirement age
The Government is proposing to abolish the default retirement age (currently age 65) with effect from October 2011. Consultation is ongoing. However, employers will need to ensure that they keep themselves up to date with developments in this area, particularly if they have employees who are approaching retirement.
National minimum wage
New national minimum wages rates will take effect from 1 October 2010. These will be:
£5.93 for workers over 21;
£4.92 for workers aged between 18 and 20; and
£3.64 for workers who are 16 and 17.
Additional paternity leave
In respect of children due on or after 3 April 2011, the last 6 months of the mother’s maternity leave can be transferred to the father or her partner to take as paternity leave. Part of that paternity leave would be paid, at the same rate as statutory maternity pay, if it is taken during the mother’s 39 week statutory maternity pay period. Similar provisions will also apply to adoption leave. Employers should ensure that their policies relating to maternity, adoption and paternity leave are updated to incorporate these changes.
Time off for training
Since 6 April 2010, employees working in organisations with 250 or more employees have been entitled to apply for unpaid time off to participate in work-related training, subject to meeting various prescribed conditions. This is very similar to the present right to request flexible working for child care or adult dependents. It was intended that from April 2011, the right to request unpaid time off for training would be extended to apply to all organisations. However, it is not clear whether this will go ahead as the Government has recently launched a consultation on whether this right should be retained, modified or repealed. A decision is expected in December 2010.
Fit notes
Sick notes have now been replaced with “fit notes”. These allow an employee’s doctor to indicate whether an employee is fit for work and suggest ways in which the employer can facilitate an employee’s return to work. Employers will now need to evaluate the employee’s fitness for work in light of these suggestions.
FAQ’S
Q: My Marketing Assistant is refusing to work on an advertising campaign which promotes civil partnerships. She says that it is contrary to her Christian beliefs. As an employer, how do I handle this?
Employers should always be sensitive to their employees’ religious beliefs but this does not mean that they should have to by whilst that employee effectively discriminates against another protected group.
The recent EAT case of London Borough of Islington v Ladele held that disciplining a Christian registrar who refused to perform civil partnership ceremonies due to her religious beliefs was not discrimination on the grounds of her religion. This decision was followed by the EAT case of McFarlane v Relate Avon Ltd which held that it was not discriminatory to dismiss an employee who refused to provide psycho-sexual counselling to same sex couples due to religious beliefs.
Following this line of thinking, you should be within your rights to discipline your Marketing Assistant if she continues to refuse to work on the required advertising campaign. However, before you embark on such a process, you should try and resolve the situation informally by discussing the issues with her. Alternatively, you may perhaps want to consider whether it is appropriate to move her to a different project.
Q: My Receptionist insists on wearing a necklace with a large cross on it, saying that it is part of her religious beliefs. Our uniform policy makes it clear that no jewellery should be worn. Can I insist that she removes it?
The recent Court of Appeal case of Eweida v British Airways plc dealt with this very issue. Ms Eweida insisted upon wearing a Christian cross visible over her uniform contrary to British Airways’ uniform policy. BA had a rule that prohibited the wearing of any visible item. Items considered “mandatory” religious items, such as the Sikh turban and the Jewish skull cap, could be worn visibly if they could not be concealed.
Ms Eweida continued to wear her cross over her uniform, despite being warned not to do so and was eventually sent home by BA. BA offered Ms Eweida an alternative role which did not require her to wear a uniform so that she could continue to wear her cross. Ms Eweida rejected this offer and claimed that BA had indirectly discriminated against her on the ground of her religion or belief by preventing her from wearing her cross over her uniform.
The Court of Appeal found that there was no evidence that anyone other than Ms Eweida was disadvantaged by BA’s uniform policy because of their religion and belief. Further, it drew a distinction between items that must be worn to follow a particular faith and those which are a merely desired (rather than required). In this case, the Court found that the wearing of the cross was Ms Eweida’s personal preference and not a requirement of her practising Christianity.
On the basis of the decision above, whether or not you can require your Receptionist to remove her necklace will depend upon whether the cross is a requirement of her following her particular faith or merely her personal preference. If it is the latter, you can insist that she does not wear the necklace in such a way that it is visible over her uniform.
Q: I run a hotel and have decided to branch out by buying the business of the restaurant situated next door. The seller keeps telling me that something called “TUPE” applies. What is this and why is it important?
“TUPE” is the abbreviation for a piece of legislation called the Transfer of Undertakings (Protection of Employment) Regulations 2006. The most significant effect of TUPE is that the employees who are assigned to the parts of the business being transferred are likely to automatically transfer and become employees of the buyer instead. Also, any employment liabilities which concern such employees will automatically transfer to the buyer too. It is therefore extremely important that you understand which employees are assigned to the restaurant business that you are purchasing as well whether there are any employment liabilities that you are acquiring.
If you do not want to keep the transferring employees, you will need an economic, technical or organisational reason to justify their dismissal. You will also need to follow a recognised fair dismissal process. Otherwise, you are likely to find yourself facing a claim of automatic unfair dismissal.
If you do decide to keep the transferring employees, you should note that there is very limited scope to change their existing terms and conditions of employment. Basically, the original employment terms are protected by TUPE, except in very limited circumstances. Their continuity of employment is also preserved.
TUPE also establishes an obligation to inform and consult appropriate representatives of any employees who will be affected by the transfer. This should take place in good time prior to the transfer occurring. Failure to do this can result in compensation equivalent to 13 weeks gross pay per affected employee being awarded.
In order to protect yourself against the effects of TUPE, you should ensure that you undertake sufficient due diligence of the business prior to the transfer so that you are clear about exactly what you are taking on. You may also want to try to negotiate suitable warranties and indemnities from the seller, for example, to cover the risk of any costs or liabilities in respect of employment claims that arose prior to the date of the transfer.
When you are faced with a TUPE transfer situation (whether as the buyer or the seller), it would be extremely sensible to obtain specific legal advice on the effect of TUPE in your particular circumstances as it can be a fairly complex regime and the penalties for failing to comply can be significant.
Q: My Restaurant Manager has been employed on five successive fixed-term contracts, each of which lasted for 1 year. I no longer need his services. Can I simply let his current fixedterm contract expire?
In short, the answer is no. Expiry of a fixed-term contract is still, in law, considered to be a dismissal and therefore, if the employee has over one year of service (which is the case in your Restaurant Manager’s situation), you must ensure that you have a fair reason for this dismissal (for example, his position is redundant) and, further, you must carry out a fair procedure in effecting his dismissal. Otherwise, you may find yourself facing a claim for unfair dismissal.
It should also be noted that where an employee has been employed on successive fixed-term contracts for at least 4 years, they are treated as having become a permanent employee. This will apply to your Restaurant Manger.
Q: It is hotel policy that a Manager is on site 24/7 in case of emergencies. This means that one of the management team must sleep at the hotel overnight on the off-chance that they need to be called upon. Does the time that they spend asleep at the hotel count towards their working hours?
Yes, on-call time counts towards the working time of an employee, even when there is only a very remote chance that they will actually be needed to deal with an emergency. You are requiring the employee to remain at work and hence such time is considered to be working time. It is important to remember that there are various rules in relation to the number of hours that an employee can work as well as specific requirements about allowing sufficient rest breaks. These can be summarised as follows:
Whilst there can be exemptions from the above rules in certain circumstances, it is important to ensure that your managers are getting sufficient rest and not working too many hours. Employers always owe a duty to protect the health, safety and wellbeing of their employees. It should also be remembered that there are special requirements in relation to night working (which would usually be defined as the period between 11pm and 6am), for example, they must not work more than an average of 8 hours per day. Depending on the regularity of the requirement for the individual to stay at the hotel overnight, they may be considered to be a night worker.
Helen Wyatt
Partner
If you would like any further information about the issues raised in this artilce, or any other aspect of employment law, please contact Helen Wyatt (hwyatt@gdlaw.co.uk), or any other member of Goodman Derrick LLP's employment team on 0207 404 0606.
This guide is for general information and interest only and should not be relied upon as providing specific legal advice.
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