June 2017 Credit Management magazine

HR MATTERS
HR ROUNDUP
Gareth Edwards looks at several recent cases on notice
periods, the minimum wage and dress codes.
WHEN does a notice period take effect?
Newcastle Upon Tyne NHS Foundation
Trust v Haywood offers guidance.
In the case, Ms Haywood worked for
Newcastle Primary Care NHS Trust. Following a transfer
to Newcastle upon Tyne NHS Foundation Trust, Haywood
was informed that she was at risk of redundancy.
Haywood met with two representatives of the Trust on
13 April 2011 to discuss the situation and informed them
that she was on annual leave from 19-27 April 2011.
While away, the decision was made to make her
redundant and Haywood was sent a notice of termination
by post on 20 April 2011. Notice of termination was also
sent by email to her husband's email address, however,
neither the letter nor the email were seen by Haywood
until she returned from holiday.
The notice of termination gave 12 weeks’ notice. The
date the notice was deemed to take effect was significant
because if it was on or before 26 April 2011, her
employment would have terminated just before her 50th
birthday and her pension entitlement would be reduced
significantly.
The Trust argued that termination should have
occurred 12 weeks after the notice was sent or,
alternatively, received.
Haywood disagreed and claimed that the effective
date of termination should be 12 weeks after she actually
read the notice of termination. The High Court found for
Haywood. The Trust appealed to the Court of Appeal
which held that notice of termination was given on the
date Haywood actually personally received the notice.
Accordingly, Haywood received notice on 27 April
2011 when she actually read the letter. This meant that
her redundancy took effect after her 50th birthday and
she was entitled to a more generous pension.
DISQUALIFIED OVER THE NATIONAL
MINIMUM WAGE
A nursery owner from Manchester has been disqualified
for six years from being a director of a limited company
after failing to pay 12 members of staff the national
minimum wage.
Joanne Ward had been the owner and sole director
of Cygnets To Swans Limited. As a result of some routine
checks carried out by HMRC’s national minimum wage
enforcement officers in 2012 and 2013, it was discovered
that the company had failed to pay 12 employees the
national minimum wage since 2010 and the company was
therefore issued with a £5,000 penalty. The maximum
penalty at the time. This sum remained outstanding when
the company went into liquidation on 8 October 2015.
Ward was subsequently disqualified from running
a limited company for a period of six years, with effect
from 24 February 2016.
Robert Clarke, Group Leader at Insolvent
Investigations North, said: “The Insolvency Service
pursues directors who break employment laws. Not
paying staff the national minimum wage is a clear
breach of a director’s duties. Running a limited
company means you have statutory obligations as well
as protections, and this should serve as a warning to
other directors who are tempted to underpay staff.”
DRESS CODES AND THE ECJ
The European Court of Justice (ECJ) has handed down
judgments in two cases concerning headscarves in the
workplace.
In Achbita v G4S Secure Solutions (Belgium), Ms
Achbita, a muslim, worked as a receptionist for G4S
where there was an unwritten rule that prohibited
employees from wearing visible signs of their political,
philosophical or religious beliefs in the workplace.
This was later included within the employee code of
conduct. Achbita decided to wear her headscarf at work
and refused to comply with the rule. She was dismissed
by G4S.
In Bougnaoui v Micropole SA (France), Ms Bougnaoui,
also a muslim, was employed by Micropole SA. She was
informed that she would not be permitted to wear her
headscarf at all due to the customer facing nature of
her role. Despite this, Bougnaoui wore her headscarf
to a customer site visit and the customer subsequently
made a complaint and requested that Bougnaoui not
wear the headscarf in future. She refused to comply with
the customer’s wishes and she too was dismissed.
In Achbita, the ECJ concluded that the internal
rule treated all employees of the company equally.
It could not find any evidence that the internal rule
was applied differently to Achbita compared to other
employees. The ECJ found that G4S’s actions did not
constitute direct discrimination. However, the ECJ
indicated that the dress code rule was capable of
amounting to indirect discrimination. In Bougnaoui, the
ECJ concluded that Micropole’s actions were directly
discriminatory as Micropole acted in response to a
customer's objections.
Gareth Edwards is a partner in the employment team
at Veale Wasbrough Vizards. gedwards@vwv.co.uk.
48 June 2017 www.cicm.com
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