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employment law MATTERS – September 2014

Welcome to the September edition of Employment Law Matters.

It has been an exciting few months in the team. Sarah Shiels has been promoted to Associate, Angela McCracken has moved north to be our dedicated employment solicitor in our Aberdeen office and we also welcome new trainee Owen Wilton to the team.

In this month’s news we start by looking at the latest challenge to the Government’s tribunal fees regime and the right of fathers to attend Ante-Natal appointments. We also look ahead at some of the important changes coming into effect from 1 October 2014.

Robert Holland
Twitter: @RobertHolland72 

This month’s articles 

Are tribunal fees unlawful?

New national minimum wage 

Right to accompany pregnant mothers to ante-natal appointments 

“Being a woman costs 14 more years at work” 

What to wear to work? ACAS issues dress code guidance 

Are tribunal fees unlawful?

We may soon have an answer to this question. Earlier this month, the Ministry of Justice released figures for the number of Employment Tribunal claims for the period April to June 2014, which showed that there were only 8,540 new claims in this quarter, 81% fewer than the number of claims submitted in the equivalent period in 2013. 

The dramatic drop has prompted the UK’s largest trade union, UNISON, to launch a fresh judicial review into the introduction of the tribunal fees system, under which claimants must now pay a fee to the Employment Tribunal in order to advance their case.

The Court of Appeal agreed to stay existing proceedings so that the fresh claim may be brought.

UNISON had previously argued in the High Court that the introduction of the new fee system would deny access to workers seeking a remedy against their employers, and that it was unlawful barrier to justice. The trade union relied on principles and rights derived from EU law, and UK equality legislation.

In its initial ruling in February of this year, the High Court had said was that it was too early to determine the full impact of the reforms, which were first introduced in July 2013. The judges held that it was too soon to rule definitively on some aspects of the union’s challenge: Lord Justice Moses and Mr Justice Irwin ruled that the “evidence at this stage lacks the robustness necessary to overturn the regime,” characterising the union challenge as “premature.”

However, in light of the new figures, UNISON is seeking to reopen the question, and the Lord Chancellor has agreed it is now time to review the evidence.

Whatever the outcome, the case seems set to make headlines and will impact on employees and employers alike.

New national minimum wage

The changes to the minimum wage that Business Secretary Vince Cable first announced in March are due to come into effect on 1 October 2014. The new hourly rates will be:

£6.50 for workers aged 21 and over

£5.13 for workers aged 18 to 20

£3.79 for workers aged 16 to 17

£2.73 for apprentices aged 16 to 18 and those aged 19 or over who are in their first year.

Other apprentices are entitled to the national minimum wage for their age. Employers are reminded that the National Minimum Wage Act 1998 makes it an offence for an employer to refuse or to wilfully neglect to pay their workers at a rate which is at least equal to the national minimum wage.

We should all expect to hear more about workers’ pay as we enter the political party conference season: some of the major parties are already foreshadowing their 2015 General Election manifesto commitments for further increases to the minimum wage. If you have any queries about what you should be paying your employees, please contact Greg.

Right to accompany pregnant mothers to ante-natal appointments

Another development for businesses and families to note is that from the 1 October 2014, the partner of a pregnant woman will be entitled to take unpaid time off work in order to accompany her to ante-natal appointments. The right is established by the new Children and Families Act 2014, and applies to employees who have a “qualifying relationship” with a pregnant woman. This includes a pregnant woman’s husband, her civil partner or partner (of a different or the same sex), the father or parent of the expected child, and, in certain circumstances, the intended parents in a surrogacy situation.

Employees will be able to exercise the right from day one of employment. Agency workers will qualify after having done the same job for the person hiring them for at least 12 weeks. The entitlement covers up to two ante-natal visits, with a maximum of six and a half hours for each visit. The employee is not entitled to take time off unless the appointment is made on the advice of a registered general practitioner, registered midwife or registered nurse.

The employer is entitled to request from the employee a signed declaration stating that he or she has a qualifying relationship to the pregnant woman or expected child, and stating that the appointment was made by one of the medical practitioners mentioned above, giving the date and time of the appointment. If such a declaration is requested and not given, the employee is not entitled to take the time off.

An employer has the right to refuse the request for time off to accompany the pregnant mother where it is reasonable to do so.

As the Government’s Guidance points out, the right is to accompaniment and not to attend the antenatal visit: “it will always be open to a pregnant woman to refuse to have that person present.” 

You can access the guide published by the Department of Innovation, Business and Skills here 

If you’re an employer looking to update your family-friendly policies, or an employee wanting to know more about your rights, you can contact a member of our Team.

“Being a woman costs 14 more years at work”

This is the striking news from the Chartered Management Institute, which recently published a report in conjunction with XpertHR comparing the salaries of male and female managers. The review concludes that the pay gap is at its worst for women aged 46-60 in senior roles, who earned 34% less than men in comparable positions. To bridge this gap over the course of a career, a woman would need to commit to an extra 14 years’ work: in theory, a woman retiring at 65 would need to carry on to 80 to earn the equivalent amount. The CMI valued the average shortfall in pay between comparable men and woman aged 45-60 at £16,680 in monetary terms. 

The findings also highlight that the representation of women narrows at the top of the business hierarchy, with women occupying just 30% of management roles, despite representing 69% of the workforce at entry level.

To view the full report click here 

If you have any questions on equal pay or salary review, please contact Robert or any of the team.

What to wear to work? ACAS issues dress code guidance

ACAS recently published new guidance on dress codes in the workplace. The key “best practice” advice emerging from the guidance can be summarised as follows:

a) Dress Code/Appearance Policy Should be Clear

The policy should outline the set standards, and indicate any disciplinary sanctions that may be applied in the case of a breach. This helps avoid ambiguity down the line, and retrospective disputes about what the policy was thought to be.

b) Set out the Business Reasons

Employers should take a step back to reflect on the rationale for the adoption of any rules, as “they should have sound business reasons for requiring these dress codes.”  

The Guidance does not offer any definition of “sound business reason,” but notes in general terms that “employers may wish to promote a certain image through their workers which they believe reflects the ethos of their organisations.” Another obvious reason for a particular restriction or requirement would be that there was a health and safety imperative.

c) Communicate and Consult

In any case, the Guidance advises, “if an employer does decide to adopt a dress code or appearance code it should be written down in a policy which should be communicated to all staff so they understand what standards are expected from them.” This advice on transparency obviously applies across the spectrum of different workplace policies. 

d) Equality and Non-Discrimination

Employers are also reminded that when establishing and enforcing their dress code policies, it is important to give consideration to employees who may dress a certain way for religious reasons. Failing to do so may give rise to a discrimination claim under the Equality Act 2010.

If you are an employer seeking assistance with the drafting of workplace policies, our team is ready to help.  


For further information on any of the above articles or to discuss your Employment Law requirements, please contact Robert Holland or any of the Employment team at Balfour+Manson.

Disclaimer: The views and opinions expressed in this article site are soley those of the original authors and other contributors and do not purport to give specific legal advice.