Tribunal Fees to be Quashed!

The Supreme Court has ruled employment tribunal fees are unlawful under both UK and EU law because they have the effect of preventing access to justice and are indirectly discriminatory.  The result is that there will be no fees to be paid to file or pursue claims.

Whilst it was accepted that the purpose behind the introduction of fees were potentially legitimate, the Lord Chancellor could not lawfully impose whatever fees he chose in order to achieve those purposes. The immediate consequence of this important judgment is that tribunal and EAT fees cease to be payable with effect from the date of the judgment, 26 July 2017.

Another major victory for employees everywhere!

…and finally

It’s official, as the Supreme Court states in its judgment “employment law is characterised by a relatively high level of complexity and technicality”, but then of course all those involved in employment law already knew that!

Changes to Salary Sacrifice

From 6 April 2017 there will be changes to the income tax and employers’ NI advantages that are currently applicable to some salary sacrifice schemes and they will be limited; below are the benefits in kind (BiKs) that won’t be affected:

The BiKs which will continue to attract income tax and employers’s NI advantages are:

  1. employer-provided pension savings
  2. employer-provided pensions advice
  3. childcare vouchers, workplace nurseries and directly contracted childcare
  4. bicycles and safety equipment provided under the cycle to work scheme, and
  5. ultra-low emission cars

NB: The changes don’t apply to any BiKs that are offered on top of an employee’s salary – they are only applicable to those schemes where the employee gives up some of their salary in exchange for benefits in kind!

For existing schemes, any arrangements that are already in place by 5 April 2017 will be protected until 6 April 2018.  Those which relate to accommodation, cars and school fees will be protected until April 2021.

Where you have an employee who wishes to enter in to a salary sacrifice arrangement, they should seek their own tax advice, it is not your responsibility to give them the appropriate advice.

Key Employment Law Changes for 2017

There are a few things that you can guarantee in life – death, taxes and employment law changes!  It’s essential that as a business owner, you know exactly what’s coming, and how to prepare for it.

If you think that you can just hope for the best and plead ignorance if you’re caught out?  Well, let’s be honest, you don’t really believe that’s an option.  You need to be compliant and I’m here to help.

Let’s look at the changes that you need to pencil in your diary…

  • Gender pay gap reporting – private sector, public sector and voluntary sector employers with 250+ members of staff will be required to publish information relating to the gender pay gap for the first time.  The exact requirements are still being drafted, though it’s expected that the deadline for the first report will be 4th April 2018, based on data from 2016/17.
  • Changes to regulations surrounding employment of foreign workers – from April 2017, employers sponsoring foreign workers with a tier 2 visa will have to pay an immigration skills charge of £1,000 per worker.  This will be reduced to £364 for small employers and charities.
  • In addition to this, the minimum annual salary threshold for ‘experienced workers’ applying for a tier 2 visa will be increased to £30,000.  If you employ foreign workers, or plan to open up your recruitment channels in the near future, you need to make sure you’re compliant.
  • National minimum wage and living wage changes to be aligned – these can be found under my page headed ‘Statutory Pay’. This does at least mean instead of rates changing in both April and October, it will now only be April – unless of course they change their minds again!

Keeping you up to date …

A brief overview of the latest news from Kiss HR

NEWS, SICKNESS ABSENCE – hurrah, employer friendly ruling from the EAT – malingerers beware, the EAT has just made it easier for you to be dismissed, but don’t get too excited! In March the EAT handed down its ruling in Metroline West (M) v Ajaj (A) 2015.

(A) reported he had slipped on water in the toilets at work and suffered an injury.  Although he was signed off sick, (M) grew concerned about (A’s) alleged injuries and arranged for covert surveillance when (A) attended one of its sites for a sickness absence interview.

There appeared, from the footage, to be inconsistencies between (A’s) mobility and his sickness claims. The upshot is, (A) was dismissed and claimed unfair dismissal.

(A) won at the tribunal, (M) appealed to the EAT and ruled in (Ms) favour! The EAT concluded that when an employee claims to be unable to attend work due to sickness, yet they are not actually ill or not as sick as they claim to be, their actions amount to dishonesty.

However, never jump to conclusions. You must be able to show that the employee has, in all likelihood, made a dishonest representation about their condition and inability to work. This could be via medical evidence, social media posts or a direct admission. Do tread carefully all the same.

NEWS, FLEXIBLE WORKING – awarded £11,000 for refusing flexible working? Or did the media give the wrong impression? When the tribunal awarded a female police officer just over £11,000 media reports gave the impression that this was because her flexible working request was denied. Are you surprised that wasn’t the real story?

Hayley Burden (B) was given a promotion by Hampshire Constabulary (HC) but that meant relocating to a different police station – which was over an hour’s drive away from B’s home, and this posed a problem. In her new role B was expected to start work at 7am meaning she would have to leave her house by 5.30am.  At that time of day B had nobody to look after her two small children and she advised her bosses of this; so to enable her to provide childcare she requested flexible working in her new role.  This was refused by HC and B felt she had no option but to turn down the promotion.

However, B didn’t leave things there and she lodged a tribunal claim and was awarded £11,621 for injury to feelings, aggravated damages, loss of earnings and loss of pension. The media reports however suggested that this amount was awarded purely because B was denied flexible working – but this isn’t true.

Whilst the full facts aren’t clear, HC made a much bigger mistake; through its actions it prevented B from taking up a promotion specifically because she had children and this was deemed to be indirectly discriminatory on the grounds of sex and that’s what B was actually awarded compensation for.

Never make the terms of a promotion inflexible, e.g. full-time only, unless you can prove why this is necessary.

NEWS, TIME OFF – a right to paid menstrual leave? In March 2016, there were some interesting reports about Coexist, a Bristol based company, who it is believed to be the first employer in the UK to introduce a “period policy” that gives all of its female employees paid menstrual leave if and when they need it! On the back of this, the Government has been asked to follow this company’s lead by making paid menstrual leave a statutory right for women.

Whilst many female MPs support the concept, the Government is reluctant to introduce any new paid statutory rights.  Even if it’s persuaded to bring in paid menstrual leave, take up would probably be low purely because they wouldn’t want their employer to have knowledge of such personal matters. I wouldn’t worry about this one just yet but if anything changes I’ll let you know!

PERSONNEL MANAGEMENT – to tackle the serious health problems causes by prolonged periods of sitting, employers are being urged to participate in “On your feet Britain”.  It’s been dubbed as a ‘silent killer’ since research has revealed that prolonged periods of sitting can have serious health implications for employees. If you missed the date this year, here’s a link to what it’s all about

It’s difficult to see why you shouldn’t remind staff about the health risks associated with prolonged periods of sitting and encourage them to take regular standing breaks, but you can’t force employees to do so.  However, those who are unwilling may be interested if they see Get Britain Standing’s online sitting hours calculator – a sobering thought when you see your total daily sitting hours and the risks it brings with it!

The benefits for you are lower sickness absence levels and increased productivity. So come on Britain – get on your feet!

The HR Horizon for 2016…

Here’s a snapshot of some of the changes coming our way during the year ahead –

In January

  • regulations giving zero hours workers the right not to be unfairly dismissed or subjected to a detriment for failing to comply with an exclusivity clause, and to claim compensation comes in to force on 11th January.

April sees

  • The new National Living Wage, as from 1 April, this will replace the National Minimum Wage for over 25s. The rate of pay will be starting at £7.20 per hour rising to £9.00 per hour by 2020.  So prior to April, you might wish to consider:-
    • auditing your workforce to identify those will will be affected by this increase
    • what you can do to off-set the additional expense, e.g. improve efficiency or productivity etc
  • Statutory rates of pay (SMP, SPP, SAP & SSP) usually increase in April; the Government has increased the rates will not increase this April.
  • The NMW amendment regs also doubles the financial penalties if employers are found to have paid less than the minimum, with effect from 1 April
  • Duty to prepare modern slavery statement takes effect
  • Employees in the public sector with annual earnings of £80,000 or more will have to repay exit payments if they return to work in the public sector within one year of leaving
  • Employer NICs for apprentices under the age of 25 are abolished, wef 6 April

During 2016

  • Employers, with 250 or more employees, will be required to publish information showing whether or not there are differences in gender pay.

The New National Living Wage

With effect from April 2016 it has been confirmed that all employees will be obliged to pay the new national living wage (NLW).  Do you know who qualifies for it and what rate is it currently set at?

All working people aged 25 and over will be entitled to receive the NLW from their employers.  The rate has initially been set at £7.20 per hour and by 2020 the Government wants the rate to reach at least £9.00 per hour.

Please be aware – paying the national living wage is mandatory, it’s not an option!

Reminder: On 1st October the four existing NMW rates will increase:

  • Rate for workers aged 21 and over will increase from £6.50 to £6.70 per hour
  • Rate for 18 – 20 year olds will rise from £5.13 to £5.30 per hour
  • Rate for 16 – 17 year olds rises from £3.79 to £3.87 per hour
  • Apprentice rate increases from £2.73 to £3.30 per hour

Hot topics in the land of employment news!

Have the floodgates been opened to historic claims in this new case law?

The EAT, bless ’em, has ruled that an employee who submitted a claim 6 years late must be allowed to proceed!  Tribunal claims are subject to strict time limits, for example, if an employee wishes to claim unfair dismissal they must do so within 3 months of their employment ending. In the case of Higgins v Home Office 2015, however, the employee had only been allowed to proceed with her (unusual) case because medical evidence indicated she had not been mentally capable of bringing a tribunal claim at the appropriate time and for 6 years afterwards.

Withouth going in to all the detail, I’ll cut to the chase and you’ll be pleased to hear, it does not open the floodgates to other historic claims!

A tale about the wee crops in the farmers field…

There were recent reports about a farm worker who had been sacked on the spot after he was photographed having a wee near some crops!  A passer by caught him on camera and was so disgusted by this he sent the snap to the mangers at the farm.  The good old media later picked up on this incident, contacted the farms owner and after they issued a statement, it was revealed the worker was sacked with immediate effect.

The morale of the story is, whilst technically possible, on the spot dismissals are highly risky as the employee may be able to claim unfair dismissal, automatic unfair dismissal and/or discrimination.  Be sure to always follow a fair and reasonable disciplinary procedure.  Do remember however, an agency worker’s services can be terminated with immediate effect.

Here’s a brief round up of some proposed and forthcoming changes to employment law

  • Holiday pay arrears – from 1 July 2015 employees will no longer be able to issue unrestricted deductions from wages claims, such as for unpaid wages and holiday pay, new regulations came into force to prevent claims of arrears of holiday pay going back more than 2 years.  There’s no need for you to alert your employees to these pro-employer Regulations. Many employees won’t bother bringing unlawful deduction from wages claims at all.
  • Managing sickness absence – ‘fit for work’ service becomes available for employer referrals during Autumn 2015.
  • NMW rates increase with effect from 1 October 2015:-
    • workers aged 21 and over rates will rise to £6.70 per hour
    • the development rate for workers aged 18 – 20 will increase to £5.30 per hour
    • young workers rates for those aged 16 – 17 will rise to £3.87 per hour
    • apprentices under 19, or over 19 in first year apprenticeship increases to £3.30 per hour
  • Sikh exemption – with effect from 1 October 2015, turban-wearing Sikh workers will be exempt from having to wear a safety helmet at any workplace

If you require further details on any of the above changes or news stories, please do get in touch – Employment law is complex and trying to muddle through on your own will lead to high risk!

Fit for Work

Fit for Work…

…advice service launched (but not everywhere – just yet)!

There has been some positive developments with the government’s new Fit for Work scheme.  You’ll be delighted to hear it’s designed to help you, the employer – particularly the smaller ones – deal with health issues and handle sickness absence matters.

Fit for Work is separated in two – the first is an occupational health service and the second is it’s free, impartial, work-related health advice service – this is being delivered by a team of occupational health professionals.

Employer referrals – once this element is fully functional in your area, you’ll be able to refer an employee who has reached, or whose GP expects them to reach, 4 weeks’ sickness absence for a free occupational health assessment.  This service should, we are informed, be fully operational by the end of 2015.

Advice and guidance – the second part (free, work-related health advice service) has been launched.  You can chat online or by phone to a specialist advisor; you are able to submit queries about specific problems via e-mail.  There’s also an “Advice Hub” for more general information, which contains a range of topics.

Quite what their capacity to deal with matters from an employment law aspect will be, is not known.  However, it’s free and impartial – so you’ve nothing to lose by trying it!

Key Dates for 2015 : Employment Law Update

Employment Law Update: Key Dates for 2015


  • Shared parental leave and pay begins – the new right to shared parental leave and pay will apply to eligible parents of babies due on or after 5th April 2015 (this will also apply to adoptive parents of children placed for adoption on or after the same date)
  • Statutory adoption leave and pay will change – the 26 week qualifying service requirement will no longer apply where the date of placement of the child for adoption is on or after 5 April 2015
  • Statutory pay increases (these are proposed rate increases and are subject to approval – it’s highly unlikely they will change, so you can start planning now.  Any changes will be publised under the heading of “Statutory Pay Rates” on this website)

    • adoption – where the child is placed for adoption pre 5 April 2015, the lower of 90% of AWE or £139.58 p.w.  Where the child is placed for adoption on or after 5 April 2015, 90% of AWE for the first 6 weeks of the adoption pay  period, followed by the lower of 90% of AWE or £139.58 p.w.
    • sick pay (SSP) – £88.45 p.w.
    • maternity pay – 90% of the AWE for the first 6 weeks followed by the lower of 90% of AWE or £139.58 p.w. for the remainder
    • ordinary paternity pay – £139.58 p.w. or the lower of 90% of AWE
    • additional paternity pay – £139.58 p.w. (2015/16 is the last tax year in which ASPP will be available because additional paternity leave is being replaced by the new shared parental leave system)
    • shared parental pay – £139.58 p.w. or the lower of 90% of AWE
    • important points to note: the new rate of SSP will apply from 5 April 2015, all the other new rates apply from 6 April 2015.  The LEL (lower earnings limit) for all rates will rise from £111 to £112 p.w.
  • Autumn Statement – in Chancellor George Osborne’s Autumn Statement on 3rd December 2014, he announced the income tax rates and allowances and national insurance rates coming into effect on 6 April 2015
  • Age limit for unpaid parental leave extended – from 5 April 2015, the age limit for unpaid parental leave increases to parents of all children under the age of 18
  • Flexibility in defined-contribution pension schemes – from 6 April 2015, there will be more flexibility in how individuals can access their defined-contribution pension savings


  • “Fit for Work” service in place – formerly known as the Health and Work Service, the new health and work asessment advisory service, “Fit for Work”, is expected to be fully operational in England and Wales by May 2015.  Further details as this evolves.


  • National minimum wage may rise – details posted as they come in nearer the time

Employment law is complex – muddling through on your own brings high risk, so whatever your employment issue, we’d love to help

Holidays – what on earth should you be paying?

Every worker has the statutory right to 5.6 weeks’ paid holiday per holiday year/per annum – sounds straightforward to calculate?  It appears not…

You won’t have missed the recent headlines announcing that workers can sue their employers for £millions in holiday back-pay claims, going all the way back to the 1990s – eek!

We normally calculate holiday pay based upon a worker’s basic salary – but we don’t normally include overtime, commission or similar payments.  Recent judgments have it clear that European Laws (which usually trump UK laws) require employers to factor overtime and commission payments – and anything else a worker would normally receive if they are working – so they are not dissuaded from taking holiday by being paid less when on holiday than when at work.

You’ll not be surprised to hear the media have missed out 2 crucial points and as always, the devil is very much in the detal!

  1. This higher holiday pay rate only applies to the first 4 weeks’ paid holiday each year.  The employer can continue to pay basic salary for any additional annual leave (NB the rules are slightly dfferent if the employee does’t have normal working hours).
  2. Employees are very unlikely to be able to bring large, historic back-pay claims.  The court decision makes it clear that if there is a  three month limit gap in holiday underpayments (as is more likely in most cases), the employee cannot claim further back in time.  So the reality is this affects holiday payments going forward, but employers are not as likely to face large back-pay claims as the publicity suggests.

The decision re holiday pay arrangements is likely to be appealed so it may not be the end of the story yet.  However, there may be some advantages in planning to start off the New Year including regular overtime payments in the amount of holiday pay.

Nevertheless, all employers need to review their holiday pay arrangements.  If you’re not sure about the implications for your business, please get in touch and we can look at it together.