HR and Employment Law FAQs

Released On 8th Aug 2023

1. What is “discrimination by perception”?

Discrimination by perception claims arise under section 13 of the Equality Act 2010, where one person is treated less favourably because another person else (the discriminator) perceives the individual to have a particular protected characteristic. This would be the case, for example, if an employer rejected a job application from a white woman whom he wrongly thought was black, because she has an African-sounding name (paragraph 3.21, Equality and Human Rights Commission (EHRC) Employment Code). The employer’s perception in this example that the job applicant was from a particular ethnic group, and the less favourable treatment of that applicant as a result, would amount to direct discrimination by perception.

Similarly, age discrimination by perception would arise where an employer treated an employee less favourably because they perceived that the employee was of a certain age. This could arise, for example, if an employer chose not to promote someone because they thought the employee was "too young" to hold a senior role even though, in reality, the employee was older than other workers in similar posts.

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information about discrimination, harassment and bullying, including template policies and drafting guidance, in the HR & Legal Resources section of our website.

If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.

2. What is the difference between the National Minimum Wage, the National Living Wage, the Real Living Wage and the London Living Wage?

The National Minimum Wage is the minimum hourly rate of pay which employers must legally pay to workers of at least school leaving age. It is set at different rates depending on the worker’s age. The National Living Wage is the minimum hourly rate of pay which must be paid to workers aged 23 and over. These rates change on 1 April every year and are enforced by HMRC. If an employer fails to pay the NMW or the NLW, HMRC may take various enforcement measures, including serving notices of underpayment, civil penalties, "naming and shaming", recovery of underpayments through tribunals or civil courts, or even criminal prosecution. In addition, a worker who does not receive the NMW / NLW is entitled to bring claims for unlawful deduction from wages or breach of contract.

The Real Living Wage and London Living Wage are voluntary minimum wages based on the cost of living (the latter, focused on meeting the higher costs of staff living in London). The Living Wage Foundation will announce new dates for the 2023-24 Living Wage rates soon.

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance about minimum wage entitlements and/or also access details of the current NMW and NLW rates on the Current rates and limits page in the HR & Legal Resources section of our website.

If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.

3. One of my employees is an armed forces reservist and has been called up for military service. Do I have to allow them to go?

Reservists may be mobilised for service in the event of national emergency or war, and for peacekeeping and humanitarian operations. If a reservist is mobilised, the Ministry of Defence (MoD) sends written notification to their employer (usually at least 28 days’ notice for contingency operations and at least 90 days’ notice for pre-planned operations).

If the absence of a reservist would cause serious harm to your business and staffing cover is not available, you have can apply for the employee to be exempt from the mobilisation, or for the mobilisation to be deferred. If you want to do this, you must apply within seven days of the date you are notified of the employee’s mobilisation. You can also apply for compensation for the additional costs you incur as a result of an employee being called up, for example the cost of hiring a temporary replacement and of training the reservist on their return.

At the end of their period of mobilisation, reservists may write to their employer to ask to be reinstated to their employment. An employer in these circumstances must offer the reservist their old job back, or an alternative job on the most favourable terms and conditions that are reasonable and practicable. (It is, however, possible for an employer to refuse reinstatement if allowing it would result in the dismissal of another employee who was employed before the reservist was mobilised, was as permanent as the reservist and who had longer service at the time of the reservist’s mobilisation.) Once reinstated, the employee must be allowed to remain in post for a minimum protected period. The length of that period depends on the employee’s pre-mobilisation length of service.

It is a criminal offence to dismiss someone for being liable to be mobilised. A court can order the employer to pay compensation to the employee as well as imposing a fine. The employee may also have a claim for unfair dismissal.

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance about employing armed forces reservists and/or access more information in the HR & Legal Resources section of our website.

If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.

4. Do employees have a right to have their mobile phone with them during the working day so they can receive personal calls and messages?

Employees don’t have a specific legal right to use their mobile phone during working hours. However, it is quite common for employers to allow some use of personal mobile phones during the work day provided this does not interfere with the employee's work. What is appropriate will depend on the circumstances. For example, manufacturers often prohibit employees from using their mobile phones on the shop floor for health and safety reasons, but may allow them to use their phones in common areas during their break times. Where no such considerations apply, an employer may choose to take a more relaxed approach and allow reasonable use, or perhaps allow usage in emergencies.

If you are considering tightening up your approach to employees’ use of their personal mobile phones during working hours, where you have previously allowed this, you should be aware that an employee might try to argue that being permitted to use their phone has been implied into their employment contract by custom and practice. If this is the case, then seeking to change the position will involve a change to employees’ terms and conditions, which may require you to take steps to consult with employees and seek their agreement to the change.

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance about changing employment terms and/or access further information about this in the HR & Legal Resources section of our website.

If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.

5. We’ve offered a maternity cover role to an applicant, but have now found out she is pregnant so she won’t be able to cover the whole period. Can we withdraw the offer?

No, you cannot withdraw a job offer because you have discovered that a candidate is pregnant – even if the role you were offering is a fixed-term maternity cover role and the candidate’s pregnancy means she would not be able to cover the whole period. (Note that a candidate is under no obligation to disclose a pregnancy during the recruitment process, and if you become aware that a candidate is pregnant, this should not be taken into account when deciding whether to offer them the job.)

Section 18 of the Equality Act 2010 makes it unlawful for an employer to discriminate by treating a woman unfavourably because of her pregnancy during the ‘protected period’. (This is the period from the beginning of pregnancy to the end of maternity leave.) This protection covers job applicants as well as existing employees.

In addition, if the candidate has already accepted the offer and any conditions (such as demonstrating the right to work in the UK) have already been satisfied, then there is a contract of employment in existence, even if you have not yet provided the written contract and the candidate has not yet started work. In these circumstances, as well as the candidate having a claim for discrimination:

You would be liable to pay notice pay in accordance with the contract terms (if the fixed-term contract doesn’t provide a right for you to terminate early on notice, then this could be pay for the full 12 month period).
The candidate could also have a claim for automatic unfair dismissal if the reason for the dismissal was her pregnancy.

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access further information about withdrawing job offers in the HR & Legal Resources section of our website.

If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.

July HR and Employment Law FAQs

12.07.2023

1. How can I better support employees affected by menopause?

The British Standards Institution (BSI) has published a workplace standard which aims to support the health and wellbeing of all employees who experience peri/menopause, with a view to helping employers retain talented staff in the workplace. See here for further details.

The BSI’s guide tackles various myths around menopause (as well as menstruation and menstrual health) and recommends steps employers can take to support their staff (women, trans and non-binary people). Suggestions include making a range of adjustments within the workplace; from changes to environmental and physical factors at work (such as enabling employees to control room temperature and ventilation), to steps towards cultivating an inclusive workplace culture and promoting flexible work design. For further details of how you can support your employees, see our e-alert here.

If you are a Make UK subscriber, you can speak to your regular adviser for guidance on supporting staff who are affected by the menopause. You can also download a copy of the Make UK template Menopause Policy from the HR & Legal Resources section of the Make UK website. We also offer a suite of micro-videos and a range of training options for staff, and specifically managers, to increase awareness about the menopause. Please contact us for further information.

If you are not a Make UK subscriber, see here for more information on our subscription, consultancy and training services.

2. What is the “all reasonable steps defence”?

Under the Equality Act 2010 (EqA), an employer can be "vicariously liable" for discrimination, harassment or victimisation which an employee commits in the course of employment. There is, however, a defence available to an employer under section 109(4) EqA if it can show that it took "all reasonable steps" to prevent the employee from doing the discriminatory act or from doing anything of that description.

Reasonable steps will usually include implementing (including regularly reviewing) key HR policies (such as equal opportunities and anti-harassment and bullying policies), providing training to all staff on equal opportunities and discrimination, providing additional training for managers on how to identify and handle equal opportunities and harassment issues, as well as effectively dealing with complaints (including taking disciplinary action) as appropriate. To succeed with the “all reasonable steps defence”, the employer must have taken steps before the act of discrimination or harassment occurred and it is important to ensure that any training provided to employees does not go “stale”.

In addition, Make UK offers a package of support aimed at preventing harassment at work, including a template anti-bullying and harassment policy (including management guidance notes), staff surveys (Pulse surveys) and anti-harassment training for staff (micro-awareness video and/or half day workshop). For further details see Sexual Harassment | Make UK.

If you are not a Make UK subscriber, see here for more information on our subscription, consultancy and training services.

3. How should we calculate pay in lieu of untaken holiday on termination of employment?

When a worker’s employment terminates, they are entitled to be paid in lieu of accrued statutory holiday that they have not taken. The Working Time Regulations 1998 (“WTR”) state that the amount of the payment may be determined:

by a “relevant agreement” (which could be, for example, a collective agreement or the worker’s contract of employment); or,

in the absence of such an agreement, in accordance with the formula set out in the WTR.

The WTR formula to identify how much leave a worker is entitled to be paid for on termination is (A x B) – C, where: A is the worker’s statutory annual leave entitlement for an entire leave year; B is the proportion of the leave year for which the worker was employed, up to the termination date; and C is the amount of leave taken by the worker between the start of the leave year and the termination date. The worker must be paid at the rate of a week’s pay for each week’s leave, calculated in accordance with the provisions of ss221 to 224 of the Employment Rights Act 1996 (with some modifications for WTR purposes).

It is common for employment contracts to displace the application of the WTR formula by setting out an alternative mechanism for calculating pay in lieu of accrued untaken holiday on termination. Some employers have sought to reduce costs at the end of employment by providing in the contract for only a minimal payment for such holiday.

However, the recent decision of the Employment Appeal Tribunal (EAT) in Connor v Chief Constable of the South Yorkshire Police [2023] EAT 42, confirms that an employer cannot use a relevant agreement to provide a smaller payment for accrued but untaken holiday on termination than the employee would have received had they been working. (In that case, the Mr Connor’s contract of employment stated that holiday pay on termination of employment would be calculated based on 1/365th of his annual salary. This resulted in him receiving a lower payment for accrued holiday than that which he would have received using the WTR formula. The EAT held that this was not permissible.)

If you are a Make UK subscriber, you can speak to your regular adviser for further information about holiday entitlements and/or also access guidance in the HR & Legal Resources section of our website.

If you are not a Make UK subscriber, see here for more information on our subscription, consultancy and training services.

4. One of my employees has been called up for jury service, but the proposed timing is inconvenient for my business. Can I say no?

Yes, it is relatively common for employers that want an employee to ask to be excused from or defer their jury service to provide a letter for the employee to submit to the court explaining the business reasons for the request. It is possible for an employee to ask to be excused from or defer their jury service to a later date if, for example, it clashes with work commitments or holiday dates, but an employee can only make such a request once.

Remember that it is unlawful for you to penalise, dismiss or select an employee for redundancy on the ground that they have been summoned for or undertaken jury service. However, if the employee’s absence on jury service would cause substantial damage to your business and the employee unreasonably refuses to apply to be excused jury service or have it deferred, then it is not automatically unfair for you to dismiss the employee or select the employee for redundancy on the ground of jury service. In order to avoid a finding of unfair dismissal, however, you must still follow a fair procedure and act reasonably in all the circumstances before deciding to dismiss.

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance about employee entitlements to time off, such as for jury service. You can also access information in the HR & Legal Resources section of our website, including our template Policy – time off for voluntary public duties and jury service.

If you are not a Make UK subscriber, see here for more information on our subscription, consultancy and training services.

5. Do I have to give a redundant employee time off to look for a new job?

Yes, if the employee in question has two or more years' continuous service, they are entitled to time off during any notice period that they work out to look for new work or arrange training. This right applies only to employees who are under notice of dismissal for redundancy. It does not apply, for example, simply because a company has announced redundancies or put employees at risk of redundancy.

There are no statutory rules about exactly how much time off is 'reasonable', but there is a limit to the amount you have to pay an employee who exercises this right. Legally, you are only obliged to pay the employee a total of 40% of one actual week's pay for time they take off during their notice period to look for another job or arrange training, no matter how much time they actually take. They can take additional time off if this is reasonable, but it will be unpaid.

If you are a Make UK subscriber, you can speak to your regular adviser for further information about the redundancy process and/or also access guidance in the HR & Legal Resources section of our website.

If you are not a Make UK subscriber, see here for more information on our subscription, consultancy and training services.