Sarah King Employment Solicitor Northampton

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You are here: Home / Archives for Sarah King

World Mental Health Day

10/10/2019 by Sarah King Leave a Comment

World mental health dayToday is World Mental Health Day and across social media today we have seen a variety of messages including from celebrities that “It’s ok not to be ok.”

Talking about mental health on any day and not just World Mental Health Day is good because it raises awareness and helps to remove the long held stigma around not talking about mental health issues.

As employers, today is a good day to reflect on the organisations response to mental health in the workplace.  Do you have access to a counselling service for example, do you have mental health champions, what benefits can employees access to benefit mental health and do you have a culture where people can talk about how they are coping.

Employees with mental health issues may be disabled within the meaning of s6 Equality Act 2010 and as such employers may have a duty to make reasonable adjustments as well as the requirement not to discriminate directly or indirectly against the disabled employee.  Sometimes prevention is better than cure so the more the employer can do to prevent the employee going off on long-term sick or getting to the point where they become very unwell, the better.

MIND are a mental health charity and they offer lots of free resources and guidance for employers when considering mental heath at work.  You can have a look at all their resources here which are a great place to start.  You can also look at a number of measures within the workplace to manage stress and assist in staff’s mental health and wellbeing:

  • Ensure excessive hours are not being worked in the office or remotely;
  • Ensure departments are adequately resourced and staff supported with their day to day workload;
  • Ensure staff take their breaks and provide somewhere inviting for them to have a break;
  • Offer employee benefits like healthcare (many modern policies have things like gym membership and discounts for those who are more active including free coffee and cinema tickets);
  • Implement a free confidential counselling service for employees to access;
  • Utilise some of MIND’s resources and ensure employee know the details for their helpline or the Samaritans in case of crisis;
  • Encourage a culture of openness and discussion around mental health

We are now working with some clients to implement a mental health plan which looks at improving the workplace for their staff.  If you would like some guidance check out MIND resources and then contact us.  Remember it’s ok not to be ok.

Tag(s): adequate breaks, confidential counselling service, disability discrimination, excessive working hours, health insurance, mental health in the workplace, mental health plan, reasonable adjustments, worklife balance, world mental health day

Holiday pay and voluntary overtime

25/07/2018 by Sarah King Leave a Comment

holiday pay and overtimeIn what is the latest in a number of holiday pay cases, the EAT has held that the NHS must include any overtime pay earned in the reference period in the calculation of holiday pay.  This includes both non-guaranteed and voluntary overtime. 

The case of Flowers and others v East of England Ambulance Trust UKEAT/0235/17 which concerned NHS staff working under clause 13.9 of the NHS Terms and Conditions of Service (Agenda for Change).  The EAT held that this should be interpreted as requiring any overtime pay earned in the three months (or any other reference period agreed) before the employee took annual leave to be included in the calculation of their holiday pay. This should include both non-guaranteed and voluntary overtime pay, regardless of whether an employee is contractually required to work the overtime or any pattern to it being worked.

The EAT held that both non-guaranteed and voluntary overtime pay should be taken into account when calculating the four weeks’ paid leave under Article 7 of the Working Time Directive following previous decisions that this should be the case so long as the payments are sufficiently regular and paid over a sufficient period. Following Dudley Metropolitan Borough Council v Willetts and others UKEAT/0334/16, the EAT held that the overarching principle of EU case law is that holiday pay must correspond to normal remuneration and therefore the employee should not be penalised for being on leave.  This rationale would follow the other holiday pay cases concerning commission. 

Watch this space as it is understood that the Trust is going to appeal this decision.

Tag(s): holiday pay, holiday pay cases, overtime and holiday pay, should I get overtime whilst on holiday, working time directive, working time regulation holiday

National minimum wage and sleeping workers

20/07/2018 by Sarah King Leave a Comment

national minimum wage and sleeping workersThe National Minimum Wage legislation is complex and there have been a number of high profile cases in recent years particularly in the care industry concerning whether carers are entitled to the national minimum wage when sleeping or on call.

The National Minimum laws contain highly complex rules about calculating the number of hours worked by a worker and this figure is required to calculate the worker’s average hourly pay and whether this is above the national minimum wage.

The Court of Appeal has recently reviewed the authorities in this area holding that at least one of the earlier EAT decisions was wrong.  The case of MenCap v Tomlinson-Blake considered the issue of workers who were on call but asleep at the client’s home and whether this time counted for national minimum wage purposes.  The Court of appeal decided that workers sleeping in as carers in the client’s home would only be entitled to have the time counted for national minimum wage purposes where they are, and are required to be, awake for the purpose of performing some specific activity.  Sleeping (even if on call but not called) does not count for these purposes.

For those with workers in the care sector it is worth reviewing the decision and taking note of the decisions which the Court of Appeal has called into question in case these are relied on within the business.

Tag(s): carers sleeping time, national minimum wage, on call time, on call time for national minimum wage

Gross Misconduct dismissals

18/07/2018 by Sarah King Leave a Comment

gross misconduct dismissalEmployees get their full employment law rights after two years in employment (with some exceptions to the rule).  Often an employer is mindful of this fact and will look to exit an employee who is not performing at the optimum level or for other reasons.  The advice has always been not to take this course of action too close to the two year’s service as it is well established that the effective date of termination (EDT) is extended by the statutory minimum period of notice even if you make a payment in lieu.  This can mean that an employer leaving it to the wire can get caught out.

The advice must always be of course to take action well before the two year period has expired.  Often if an employee if not performing early in the relationship is unlikely to improve unless it is a training issue.  This remains sound advice but a recent EAT decision has clarified where the employer dismisses for gross misconduct and is entitled to do so then the statutory notice period is not added onto the termination date to acquire two years service.  Of course unless the conduct complained of is so clear this does still cause a grey area but gives an employer another point to argue if the employee does not have sufficient service to bring an unfair dismissal claim as the matter will have to be dealt with as a preliminary issue.

The facts of Lancaster and Duke Ltd v Wileman are that W started her employment with LD Ltd on 22 September 2014. Although she was a competent worker, colleagues found her occasionally rude and aggressive and she had a difficult relationship with one director in particular. On 20 September 2016, LD Ltd dismissed W summarily for gross misconduct (just days before she acquired service). The employer did not follow any process or give the right of appeal as is often the case with dismissals under two years service. A preliminary point had to be decided as to whether the tribunal has jurisdiction to hear her unfair dismissal claim as her EDT was extended by the statutory notice period or not.  .

The tribunal decided that the EDT was 27th September (20th September 2016 plus one weeks statutory notice) by virtue of S.97(2) of the Employment Rights Act 1996 which states that where an employer dismisses an employee with less than the statutory minimum period of notice required by S.86 ERA, the EDT is deemed to be the date on which the statutory notice would have expired. LD Ltd appealed and the EAT allowed the appeal.

The EAT found that S.97(2) extends the EDT by ‘the notice required by S.86’. In its view, this brings the entirety of S.86 into play, including S.86(6) as much as S.86(1). S86 states that the right to statutory minimum notice ‘does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party’.  As such the EAT found that if W was guilty of gross misconduct there could be no extension of the EDT and as the tribunal had not made a finding on this issue, the case was remitted for the tribunal to decide whether or not W was guilty of gross misconduct as a preliminary point.

The EAT noted that this interpretation has been assumed in other cases and in leading employment law commentary texts but had not been expressly determined before. 

Tag(s): can I bring a claim for unfair dismissal, determing the EDT, do I have two years service, gross misconduct dismsisals, unfair dismissal

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Sarah King t/a SK Employment Law is not a firm of solicitors. Sarah King is a consultant solicitor at Excello Law Limited and legal services are provided by Excello Law Limited which is authorised and regulated by the Solicitors Regulation Authority under SRA number 512898.

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