Are you fattist?

We are all obsessed with appearance more than we would like to admit.  We may claim to believe “beauty is only skin deep” but if that were true, the UK beauty industry would not be worth £17 billion and the UK diet industry another £2bn.

And let’s be honest, we are equally obsessed with the appearances of others.  Take the televised election debates, where substantial airtime was dedicated to highbrow political discussion on the appearance of party leaders, the impressions voters might have consequently formed of them and how that might influence their vote.

The reasons for our obsession are plentiful and complex but the simple principle that appearance matters is undeniable.  Whether we are looking at someone’s face, body or specific features such as height or hair colour, “what is beauty is good” and we infer positive traits from attractive faces.  And if we accept (rightly or wrongly) that physical attractiveness is good, do we judge those we perceive to be unattractive to have less positive traits, for example judging someone to be lazy purely because they are overweight?

Why should this matter to an employment lawyer?  Last month, Dr Sarah Jackson, of University College London, spoke out after conducting two studies into the physical and psychological effects of “fattism”.

Dr Jackson has called for the law t protect against weight discrimination in the same way as the Equality Act 2013 makes it unlawful to discriminate against job applicants and workers on the grounds of nine “protected characteristics” including age, sex and disability.

Examples of fattism include jibes, taunts, receiving poorer service in places such as shops and doctor’s surgeries, and being assumed to be stupid.  If overweight job applicants or employees, or those considered “facially challenged” or less than attractive in some way, are disadvantaged at work (for example, being refused employment, passed over for promotion or bullied by colleagues) should the legal protection against discrimination be extended to include a tenth protected characteristic, namely “lookism”?

The difficulty is that age, sex and disability are objectively verifiable whereas attractiveness is extremely subjective.  The majority of people may be able to agree when considering either extremes on the attractiveness scale, but not necessarily when asked to agree on those who might be said to fall somewhere in the middle.  The other problem is that discrimination on any ground can sometimes be hard to detect – and often we’re not even conscious of our own biases.

One person who seems very aware is former Apprentice contestant Katie Hopkins, who reiterated in her TV programme, My Fat Story, that she would never employ an overweight person because they don’t create the right image and can’t work at the pace she requires.  Similarly, what of the employer with a policy of keeping employees with a disability out of sight or out of customer-facing roles?  Are such employers inviting a potential disability discrimination claim?  You certainly wouldn’t want to, as a compensatory award in discrimination claims is uncapped.

While the law may not (yet) recognise fattism, the Equality Act does in fact offer some protection, although some behaviour complained of would require to be cited as, say, age or even disability discrimination to begin a claim.  Take, for example, a business selling gothic clothing with a vacancy of a sales assistant in its high street store looking to attract applicants who they believe exemplify their brand and can help to attract new customers int their target market.

It’s recruitment methods may well be based on discriminatory criteria (for example, a requirement to look young and grungy), meaning the unsuccessful applicant in their 50s and in a wheelchair, who wasn’t considered to fit the brand image, could have a claim under the Equality Act.

The best way to reduce the risk of any potential claim in respect of any protected characteristics, whether recognised by the law now or in the future, is to recruit on the basis of carefully drawn-up job and person specifications which provide objective, measureable requirements.  Remember to never judge a book by its cover – not if you want to avoid an expensive discrimination claim.

Donna Reynolds is an experienced Employment Lawyer and HR Adviser helping employers throughout Fife, Edinburgh and Scotland.

Is your business fighting fit?

If you are one of the millions of people who started a new diet in the New Year it is no doubt by now a distant memory.  That is, until the sun made one of its rare appearances this Spring, reminding us that summer is only round the corner and we wished we had stuck with the diet that little bit longer. The diet theme for 2015, if you want to be a healthier, happier version of yourself, appeared to be ‘changing your lifestyle’. By applying this principle to your business and making a few changes it is never  too late to help your business get fighting fit for 2015 and beyond. Here are 7 legal issues you should not delay any longer, never mind another year.

  1. Begin by getting your house in order.  Put Powers of Attorney in place for all the directors and other bank signatories of the business. Businesses can collapse if something happens to key people, and no-one can then instruct bank transactions, etc. In the same vein, get that Shareholders Agreement done that you have always promised to do. When something happens, sadly it is all too common for “understandings” to be misunderstood, not agreed or whatever. Get it in writing and put it beyond doubt.
  1. Get it in writing applies equally to a Contract of Employment. A verbal Contract of Employment is just as valid but a written Contract is always better. Do you have time to argue with employees about their job description or hours of work?
  1. Do your employees work overtime or different working patterns or receive commission , bonus or travel allowances? Get to grips with holiday pay calculations and what additional payments and allowances must be included to avoid or limit the impact of  any holiday pay claims. If you’re not aware of the recent changes in this area, find out now.
  1. Dig out your lease from the back of the filing cabinet and remind yourself of the detail. Specifically, landlords and tenants should know key event dates of their leases e.g. the date when the lease ends or the date by when a landlord or tenant must exercise a right to end a lease early.  As leases usually don’t automatically end or end early, it is equally important to know the last date by when notices need to be sent.  You should then make a separate diary entry at least two months in advance of that date to contact your lawyer to send out the notices.  You may need to check with your solicitor or surveyor to find out these dates.
  1. Does your business sell goods or services to consumers? The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 came into effect on 13 June 2014 and fundamentally affect the way in which businesses need to contract with consumers. Many reputable traders might not even have used written contracts up to now. That is no longer a sensible option. Non-compliance carries potential criminal liability for your business, and personally for its directors or partners and its senior managers. Even if you are lucky enough not to be prosecuted and fined, non-compliance can also mean any contracts are cancellable for a year, even if you have long since supplied the goods and services.
  1. Be careful not to unwittingly give anything away in 2015. Businesses are usually too busy to get worried about neighbouring occupiers parking on disused land, making minor changes to boundaries or other minor property infractions.  They should be, as many such changes can, with the passage of time, result in neighbours acquiring new rights or loss of land.  Tenants could find themselves in breach of their lease by not objecting in time.  Owners could find themselves losing land that, whilst not valuable right now, could become of critical importance in the future.
  1. Finally, think beyond 2015 and the possibilities that await. If you are thinking of selling, when will that be? It is much easier to sell a “neat and tidy” business – and you can’t do housekeeping at the last minute. So, take time out and think of longer term plans.

 

Mirror Mirror on the wall, what’s the fairest employment law change of all?

It’s that time of year again when the majority of employment law changes take effect. So, which of these changes are you happy to embrace and which would you rather not have to deal with?

Shared Parental Leave

On 5 April 2015 a new system of shared parental leave is available to parents of children due to be born or placed for adoption with them on or after 5 April 2015. Further details about shared parental leave can be found here.

Adoptive Parents’ Rights to be Enhanced

From 5 April 2015 employees no longer require 26 weeks’ service before they become entitled to adoption leave. The amount of statutory adoption pay will increase and adopters will be entitled to paid time off work to attend appointments to have contact with the child.

Ordinary Parental Leave Extended

Currently, parents of children under 5 (unless the child has a disability, in which case the age limit is 18) are entitled to up to 18 weeks’ unpaid parental leave provided they have 1 year’s service. From 5 April 2015 unpaid parental leave is extended to parents of children aged between 5 and 18.

Surrogacy

Also from 6 April parents who have a child through surrogacy will be permitted to take ordinary paternity leave and pay, adoption leave and pay and shared parental leave and pay.  Both parents will also be entitled to take unpaid time off to attend 2 antenatal appointments with the woman carrying the child.

Limits on Unfair Dismissal Tribunal Awards Increase

The limits on the amount of compensation that an employment tribunal  can award for unfair dismissal will increase from £76,574 to £78,335. The cap on the compensatory from 6 April 2015 will therefore be the lower of £78,335 or 52 weeks’ gross wage.

The change in a week’s pay from £464 to £475 will also affect redundancy payments.

Statutory Payment

From 6 April 2015 the standard weekly rate of statutory maternity pay, paternity pay and adoption pay will increase to £139.58. Statutory shared parental pay will be payable at the same rate.  Statutory Sick Pay will increase to £88.45 per week.

But that’s not all. Looking ahead to the summer, the two year cap on back pay claims for holiday pay as a result of recent holiday pay cases will apply from 1 July 2015 to claims lodged on or after 1 July 2015. And in the Autumn we can expect a new tax-free childcare scheme to be introduced and a drat order to outlaw caste discrimination.

Donna Reynolds is an expert Employment Lawyer and HR Adviser providing advice and assistance to SMEs throughout Fife, Edinburgh and across Scotland.

Shared Parental Leave

From 5 April 2015 a new system of shared parental leave is available to parents of children due to be born or placed for adoption with them on or after 5 April 2015. It is intended to give parents greater flexibility about how they mix and match care of their child.

Under the new system:

  • Employed mothers will continue to be entitled to 52 weeks’ maternity leave as a right from day 1 of their employment.
  • Mothers can choose to end their maternity leave after the initial 2 weeks’ compulsory maternity leave (4 weeks in the case of factory workers); working parents can then decide how they want to share the remaining 50 weeks’ leave.
  • Fathers will have a new right to take unpaid leave to attend 2 antenatal appointments.
  • There is a new statutory payment for parents on shared parental leave with the same qualifying that currently apply to statutory and paternity pay.
  • Those that have adopted a child will be entitled to the same pay and leave as birth parents.

The first women entitled to benefit from shared parental leave will have informed their employer of their pregnancy by the end of the week 21 December 2014. This is because to exercise her right to maternity leave the employee must, by the end of the 15th week before the expected week of birth, give her employer the expected due date of her baby and the date she intendeds to start her maternity leave.

To qualify for shared parental leave a mother must:

  • have at least 26 weeks’ continuous employment by the end of the 15th week before the expected week her baby is due and remain in continuous employment with that employer until the week before any period of shared parental leave that she takes;
  • has complied with the relevant notice and evidence requirements
  • have the main responsibility for the care of the child at the date of the birth (apart from the responsibility of her partner or the child’s father);
  • be entitled to statutory maternity leave in respect of the child;
  • ‘curtailed’ or shortened her statutory maternity leave;
  • give 8 weeks’ notice of her intention to curtail her leave;
  • have a partner that satisfies the “employment earnings test” and, at the date of the child’s birth, have the main responsibility for the care of the child (apart from any responsibility of the mother); and

However, it’s important that the mother’s partner also satisfies certain conditions:

  • he or she must be an employee with 26 weeks’ employment at the end of the 15th week before the baby’s expected due date and still in employment;
  • he or she must give their employer a notice of entitlement and 8 weeks’ notice of intention to take shared parental leave; and
  • if requested, provide a copy of the child’s birth certificate and the name of and address of the mother’s employer.

When an employer receives notice from an employee that he or she intends to take shared parental leave, it can request a copy of the child’s birth certificate and the name and address of the employee’s partner’s employer. The employee must provide this within 14 days of the request (if the employer requests a copy of the birth certificate before the child has been born, the employee must provide this within 14 days of the birth).

This information will not be enough for the employer to be able to confirm that the employee is entitled to shared parental leave. However, in most cases, the employer should rely on the declarations provided by the employee and his or her partner that they meet the various eligibility requirements. Employers are not expected to check, for example, the earnings and employment history of their employee’s partner.

Donna Reynolds is an expert Employment Lawyer and HR Adviser providing advice and assistance to SMEs throughout Fife, Edinburgh and across Scotland.

Land and Buildings Transaction Tax: the Sting is in the Tail

Most people know that the 1st of April is April Fools’ Day. But how many people south of the border know that the 2nd of April is Tailie Day in Scotland, a day when traditionally as a prank, paper tails were attached to the backs of unsuspecting people? Perhaps in our modern electronic age, there is less paper about, as the day seems to have largely died out.

The Scottish Parliament seems keen though, to revive the tradition. Yesterday saw the introduction of a new land transaction tax, Land and Buildings Transaction Tax (LBTT) which replaces Stamp Duty Land Tax (SDLT). As we have reported elsewhere, there are some welcome features of the new tax, including a closer connection between property value and the amount of tax paid.  Purchasers of commercial properties will pay less tax under LBTT than under SDLT on purchases up to £1.95 million.

All this is good – but there is a sting in the tail affecting tenants of leases of commercial properties after 1 April. Under its predecessor tax, SDLT, only one tax return needed to be filed to the tax authority at the start of the lease. LBTT works differently – a 10 year lease, for example, would require the tenant to submit not one, not two, not three, not four… but an extraordinary five tax returns to Revenue Scotland.  You might think this is an elaborate joke but you’re one day too late for that.  Here’s how LBTT returns work:

  • On the start date of the lease the tenant must file the first tax return – and do so within 30 days of the start date of the lease
  • at the end of year 3 of the lease, another return must be submitted – even if there is no additional tax due
  • more returns must be filed at the end of years 6 and 9 – again, even if no extra tax is due
  • for good measure, a further tax return must be submitted at the end date of the lease
  • lastly, if you think five returns are not enough, should the lease continue beyond 10 years, more tax returns will be needed

You might think the Scottish Government is playing a prank by pinning paper tails on unsuspecting tenants. But there is very much a sting to the tail, for anyone who fails to submit a tax return within 30 days will face an automatic £100 penalty, rising to as £1,000 plus 10% of the LBTT due on each return not made within 12 months of the due date. Furthermore, Revenue Scotland, it seems, has no plans to send out advance reminders to tenants.

The big point here is that tenants of commercial premises will need to be very organised to avoid paying these penalties.  At CCW we think we can help by giving our clients details of when exactly the returns are due and we can, if requested, help them file these to Revenue Scotland.  And if, indeed, there is sufficient demand from tenant clients, we will look at setting up a web service to send out advance automatic reminders to clients of when each return is due and prepare the relevant return.  If you think such a service would be useful, please do drop me an email.

Michael Dewar is an expert Commercial Property Lawyer assisting landlords, tenants, business owners and developers in Fife, Edinburgh and across Scotland.