Credit Management 2019

HR MATTERS ROUNDUP
Discriminating against
a disabled employee
Determining sick pay for part-time employees,
calculating National Minimum Wage, and attempts to
combat the rise in claims.
CAN an employer discriminate
against a disabled employee
if it bases its early retirement
pension calculations on
their adjusted, reduced
hours of work? The answer
in The Trustees of Swansea University
Pension & Assurance Scheme and another
v Williams was no.
Mr Williams was employed by Swansea
University. His working hours were
reduced to part time as a reasonable
adjustment in light of a medical condition
that amounted to a disability under the
Equality Act. Williams applied for ill health
AUTHOR – Gareth Edwards
early retirement, which was granted when
he was aged 38. As a result of his early
retirement he started to receive his pension
under the terms of Swansea's pension
scheme.
Williams claimed that the calculation
of his pension amounted to unfavourable
treatment since it was based on his parttime
salary and he was only working parttime
because of his disability. The tribunal
agreed, but the Employment Appeal
Tribunal and the Court of Appeal did not.
The Supreme Court, however, confirmed
that it was not discrimination arising from
disability to calculate Williams' pension
by reference to his part time hours. In
particular, the Court found that he had
not been subjected to any unfavourable
treatment. Had he not been disabled, he
would not have been entitled to a pension at
all at that time. The treatment was therefore
not in any sense unfavourable, nor could it
reasonably have been so regarded.
This judgment is good news for
employers and pension providers. Subject
always to the rules of the particular scheme
involved, an employee will not suffer
discrimination where ill-health retirement
benefits are calculated on the basis of their
most recent salary and hours worked.
Calculating national minimum wage
NATIONAL Minimum Wage (NMW)
legislation provides that an individual
who is a 'worker' for minimum wage
purposes must be paid the NMW. Within
updated guidance from the Department for
Business, Energy and Industrial Strategy
(BEIS), the term NMW covers both NMW
and the National Living Wage.
Many employers use unpaid trial
work periods as a legitimate part of their
recruitment process. The current law does
not define what a 'trial work period' is, or
when during a work trial NMW must be
paid. The guidance seeks to assist employers
in determining if a trial work period is
subject to NMW or not. The following
factors will generally be taken into account
by courts and tribunals: whether a 'work
trial' is genuinely for recruitment purposes;
the length of the trial period; the extent of
observations during the trial; the nature
and value to the employer of the tasks; and
whether the trial period is being used to
reduce labour costs.
The Government's view on lengths
of trial work periods is that any trial
longer than one day is likely to incur
NMW in all but very exceptional
circumstances.
While ultimately payment of NMW
during work trials will need to be assessed
on a case-by-case basis by HMRC and
potentially the courts, the updated guidance
highlights some helpful factors which are
likely to be taken into account and serves
as a useful reminder to employers.
Combatting the rise in claims filed
FOLLOWING the 165 percent increase in
tribunal claims, it has been revealed that
in some areas Employment Tribunals (ET's)
are listing final hearings far too long after
receipt of the initial claim form.
At a recent meeting of the Employment
Tribunal National User Group, the President
explained that in some regions it is taking
12 to 18 months to list open track cases for
final hearing, which requires hearings of
five days and over.
The delay for hearings to be listed has
been apportioned to both the increase in
claims following the abolition of tribunal
fees, as well as the reduced number of
salaried judges. The President commented
that it is harder to list longer hearings
as fee-paid judges and lay members find
it more difficult to commit to multiday
proceedings. It is also interesting to
note that while single claims to ET's have
increased by 165 percent in the most recent
quarter, the number of claims would
have needed to rise by 200 percent to meet
the pre-fees position.
In relation to the shortage of salaried
judges, it was reported that the Judicial
Appointments Commission are in the
process of appointing 54 full-time salaried
judges at the ET. It is hoped that the
additional appointments will increase the
speed within which ET claims are listed
and heard.
Gareth Edwards is a partner in the employment
team at VWV.gedwards@vwv.co.uk.
The Recognised Standard / www.cicm.com / March 2019 / PAGE 66