10 months ago

June 2017 Credit Management magazine

The CICM magazine for consumer and commercial credit professionals


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. 48 June 2017 The Recognised Standard

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