Julian Taylor

As the UK temperatures soar ACAS has issued some guidance to help employers manage workplace challenges due to hot weather.  Their suggestions include:

Workplace temperatures should be reasonable – the Health & Safety Executive (HSE) advice is that the temperature in all workplaces inside buildings must be reasonable. The HSE offers advice on how to carry out a thermal comfort risk assessment if staff are unhappy with the temperature: http://www.hse.gov.uk/temperature.

Keeping cool at work – switch on any fans or air conditioners to keep workplaces comfortable and use blinds or curtains to block out sunlight. Staff working outside should wear appropriate clothes and use sunscreen to protect from sunburn.

Stay hydrated – employers must provide staff with suitable drinking water in the workplace. Workers should drink plenty of water throughout the day to prevent dehydration and not wait until they are thirsty.

Dress code – employers are not under any obligation to relax their uniform or dress code requirements during hot weather but where possible it may be advisable to for employers to relax the rules for wearing ties or suits.

Getting into work – if public transport gets adversely affected by the hot weather, this could affect staff attendance and their ability to get into work on time. Staff should check timetables in advance.

Vulnerable workers – some workers may be more adversely affected by the hot weather such as the elderly, pregnant women or those on medication. Employers may wish to give them more frequent rest breaks and ensure ventilation is adequate by providing fans or portable air cooling units.

Acas’ full hot weather guidance is available at http://www.acas.org.uk/hotweather.

In the October 2018 Budget the Chancellor confirmed that with effect from 6 April 2020 private sector businesses that engage contractors who supply services through an intermediary business (such as a personal service company) will be responsible for determining whether the IR35 rules apply. If the rules do apply, the entity paying the intermediary’s fees (the “Client”) will be responsible for operating PAYE and NICs on those fees.

The change, which reflects changes that came in for the public sector in 2017, was originally due to come in in 2019. The delay until 2020 is good news for businesses, but the change remains of real significance for a number of reasons:

• The Client, rather than the intermediary, will be responsible for determining whether IR35 applies. In essence it applies where an individual personally provides services to a Client via an intermediary, and the circumstances are such that if the arrangements had been made directly between the individual and the Client, the individual would be regarded as employed by the Client. Employers will need to get to grips with the tests for assessing employment status, and situations will need to be judged on a case by case basis.
• If the Client decides IR35 applies, then as the fee payer they will be responsible for deducting income tax and employees’ NICs from the fees, and will also need to pay employer NICs. This increases costs for all concerned so it is possible contracts will need to be reviewed and renegotiated.
• Payroll and accounting systems will need to be checked well in advance to ensure that they can cope with the changes.

“Small” businesses will be exempt from the new rules – we are waiting for clarification on which businesses will be classified as “small”.

The test for whether an employer can be found vicariously liable for acts of an employee is whether the employee is acting “in the course of their employment”, and whether the specific events are so closely connected with the employment that it would be fair and just to hold the employer vicariously liable.

In the case of WM Morrison Supermarkets v. Various Claimants an internal auditor was aggrieved having undergone a disciplinary process. He sought revenge against Morrisons by publishing the personal payroll data (including sort codes, account numbers and National Insurance information) of over 100,000 colleagues on the internet. He was personally tracked down, and imprisoned for his offences, but a number of the victims sought damages against Morrisons. Whilst the supermarket was not directly liable, and had taken appropriate measure to prevent data leaks, the Court of Appeal found Morrisons to be vicariously liable for the actions of its employee. He had clearly been entrusted with payroll data in his role, and although the leak was conducted using his personal computer outside his usual working hours, there was a sufficiently close connection with his employment upon which to base liability. The Court stressed that the employee’s malicious motive was irrelevant, and while it recognised that this could cause significant damage to an employer (which was precisely what had been intended by the employee), it suggested that the solution for employers is to insure against such wrongdoing.

This is a significant judgment with very far reaching implications for employers, and it will be nigh impossible to stop a determined, disgruntled employee from doing similar. Morrisons has indicated it will appeal the decision, but in the meantime employers should check their insurance policies, and also review their data security standards to do all they can to reduce their risk.

Link to Judgment: www.bailii.org/ew/cases/EWCA/Civ/2018/2339.html

A YouGov survey has revealed that almost two thirds of the British public are unaware of what the gender pay gap is. The survey of 1,640 adults asked whether they thought the gender pay gap was “women as a whole being paid less on average than men as a whole” or “women being paid less than men for doing the same job”.  Just 30% chose the correct first option.  64% chose the latter, confusing the gender pay gap with unequal pay.  YouGov Associate Research Director Tanya Abraham, sees the lack of understanding as a problem for those seeking to address the issue.

www.yougov.co.uk/news/2018/09/14/most-brits-have-wrong-idea-what-gender-pay-gap/

Currently only employers with 250 or more staff are covered by the legal requirement to publish gender pay gap data. However, we have seen many smaller employers starting to look at their gender pay gap data too and it is possible that the obligation will be broadened in due course. Contact us if we can help with gender pay gap or equal pay issues.

The key test in establishing whether an employer can be found liable for acts of an employee is whether the employee is acting “in the course of their employment”.  The test is whether the specific acts are “so closely connected with the employment that it would be fair and just to hold the employer vicariously liable”.

In the recent case of Bellman v. Northampton Recruitment Ltd the Court of Appeal found an employer was vicariously liable for the violent actions of its MD following a Christmas party.  In this case, following on from the office Christmas party a number of the guests went on to a hotel for further drinks.  Many of the group continued to drink alcohol.  In the early hours of the morning conversation turned to work, and the Managing Director lost his temper, proceeding to lecture the employees present about the fact that he was the boss and could make the decisions.  Mr Bellman, a sales manager, challenged him and the MD swore  at him and proceeded to punch him twice.  Mr Bellman was knocked to the floor and sustained significant brain damage when his skull was fractured.  Mr Bellman brought a claim for damages against his employer.

The High Court dismissed the claim on the basis that what happened was a drunken discussion following a work event.  They were of the view that there was insufficient connection to work upon which to base a finding of vicarious liability.  Mr Bellman appealed and the Court of Appeal allowed his appeal.  Whilst the after-party was not a seamless extension of the main Christmas party, it was not just an impromptu drinks party between work colleagues that may happen any night after work.  The drinks occurred on the same night as the main party orchestrated and paid for by the business. The key feature in this case was that the MD had chosen to wear his “metaphorical managing director’s hat” and to deliver a lecture to his subordinates.   What was crucial here was that the discussions about work became an exercise in laying down the law by the MD, and amounted to a misuse of the power vested in him.  This meant that there was a sufficiently close connection to work for the company to be found vicariously liable.

The giving of employment references can sometimes cause tensions for employers. Although there is usually no legal obligation to provide a reference (except in certain regulated professions), if you do provide a reference you have a duty to both the subject and the recipient to ensure it is true and not misleading. It is also advisable to handle reference requests consistently to reduce exposure to complaints from individuals that they have been singled out for different treatment because of a particular protected characteristic (such as their age, gender or disability etc.).

ACAS has published new guidance dealing with the giving of employment references. You may find this a useful reference tool. The guide covers what references can include, and also discusses certain circumstances in which you might decide to give a bad reference, suggesting that subjective opinions or comments that are not supported by facts should always be avoided. See here for the new guide: www.acas.org.uk/index.aspx?articleid=5072