BREXIT Update.

Brexit negotiations took place, with the first meeting being held on 19 June 2017, conducted by the EU Chief Negotiator, Michel Barnier, and the Secretary of State for exiting the EU, David Davis.  The following items were on the agenda:-

  1. Agreement was reached in relation to dates, organisation and priorities for the negotiations.
  2. The languages of negotiation were agreed to be English and French.
  3. Agreement was reached in relation to the structure of the negotiations, with the aim being to have one week of negotiations per month and to use the time in between meetings to work on and exchange proposals.  During the first phase of negotiations the topics to be discussed will cover citizens’ rights, the single financial settlement and other separation issues.
  4. Negotiations will start with regards to the Northern Ireland/Irish border and will be focussed on the protection of the Good Friday Agreement and the maintenance of the common travel area.



Work Experience – Beth Miller, Johnstone High School

Monday 5th June

During my week of work experience, I hope to learn about the roles of the people who work at Scottish Engineering.  I would also like to learn about the jobs of the people who work at the member companies that I am going to be meeting this week.  This week will be a great opportunity to get an insight into the world of work and it will be exciting to learn about what the people at this company do with their time. I have also been given a social media project to complete – I must find a way that social media could be used to promote the company and teach the staff (dinosaurs) how to use Twitter.



Fulton and Others -v- Bear Scotland and Others

The Bear Scotland case above, which concerned inclusion of non-guaranteed overtime payments in the calculation of 20 days’ annual leave, returned to the Employment Appeal Tribunal recently.

The question referred was whether the finding in the original judgment, that a break of more than 3 months between non-payments or underpayments broke the chain in a series of such deductions, resulting in claims being time-barred, was binding.

The Employment Appeal Tribunal found that this aspect of the previous ruling was binding and rejected the Claimants’ argument that the previous finding was not “sufficiently material” to the previous decision to be regarded as such.

Therefore, it is possible for employers to argue that if there is a break of 3 months or more between holiday payments which were not calculated in accordance with the original judgment, then any Tribunal claims relating to underpayments prior to the break are time-barred.  Employers should also remember that in respect of any Tribunal claims for underpayment of holiday pay lodged after July 2015, that these are limited to 2 years’ arrears in any event.



Discrimination law is aimed at protecting those with the relevant protected characteristics at all stages in employment – from recruitment to post-employment termination.

In the recent case of Government Legal Services v Brookes the Employment Appeal Tribunal upheld an Employment Tribunal decision that a job applicant with Asperger’s syndrome suffered unlawful disability discrimination because of the multiple choice test she was required to sit as part of the recruitment process.

The GLS had an annual recruitment process, the first stage of which required applicants to sit an on-line multiple choice test on decision making ability.  The Claimant asked for adjustments to be made to the process (including changing the way in which answers were given).  She was advised it was not possible to adjust the test although other adjustments were made including the time allowed to sit the test. Ms Brookes scored below the pass mark and her application was not progressed.

She argued GLS had indirectly discriminated against her by reason of her disability and the treatment was unlawful . . . . the failure to progress her application amounted to discrimination because of something arising in consequence of her disability. She also argued that there had been a failure to make reasonable adjustments.

The ET upheld each of her claims. It found that there was a provision, criterion or practice (a PCP) namely, requiring all applicants to take and pass the on-line test.  The Tribunal accepted the PCP generally placed those with Asperger’s at a particular disadvantage compared with those who did not have the condition.  The evidence showed Ms Brookes was put at that disadvantage since her impairment resulted in a lack of social imagination particularly in hypothetical situations.  The Tribunal still had to decide if the treatment was justified.  There was a legitimate aim – testing of fundamental competence however, the Tribunal felt the means to achieve the outcome was not proportionate. GLS could have achieved the aim in a less discriminatory way namely, by implementing Ms Brookes proposed adjustments which were deemed to be reasonable.

Following the decision Ms Brookes was awarded compensation of £860.00 and the Tribunal recommended GLS issue a written apology to the Claimant and review its recruitment procedures to introduce flexibility in psychometric testing for disabled applicants.  On appeal the EAT agreed each ET finding.

The decision provides a reminder of the wide application of discrimination law.  Employers must give proper consideration to all candidates at all stages.  Applying a rigid and inflexible recruitment policy could give rise to risks.  Proper consideration should be given at an early stage to potential adjustments that may be needed and requests made by applicants should be fully considered.  The Equality and Human Rights Commission’s Code of Practice provides employers with helpful guidance on this and other discrimination areas.



The recent employment tribunal case of Kinnear v Marley Eternit Ltd highlights the potential financial risks of dismissing an apprentice before he/she completes their apprenticeship.

Mr Kinnear had entered into a 4-year, fixed-term apprenticeship with his employer, which was due to expire in November 2018, upon completion of his qualification as a Roofer.  However, Mr Kinnear was made redundant in June 2016 due to a downturn in work.

Mr Kinnear was awarded £25,000 in respect of damages (the maximum amount an Employment Tribunal can award for a breach of contract claim).  This was given on the basis that the Employment Judge found Mr Kinnear would be unlikely to be able to finish his apprenticeship with another firm because of his age and, as such, his future losses were likely to stretch over some years.  Consequently, he would be disadvantaged in the labour market going forward, by not having attained his qualification in his chosen trade.

Employers should note that training is the primary purpose of a contract of apprenticeship, while doing work for the employer is secondary.  As such, apprentices employed under a contract of apprenticeship have enhanced rights on termination of their employment compared to ‘ordinary’ employees, and employers owe them greater obligations.  Moreover, an employer has significantly less scope for dismissing an apprentice employed under a contract of apprenticeship than an ‘ordinary’ employee.  Accordingly, if a business finds itself experiencing a downturn in trade, it will require to demonstrate that it has taken all reasonable steps to find alternative placements for the apprentices who are at risk, as redundancy really should be a last resort, given the risks involved.  Furthermore, if the apprentices have more than 2 years’ service they will be eligible to bring claims for unfair dismissal as well as damages claims for breach of contract.

Any member companies who employ apprentices and are entering a redundancy situation should contact Scottish Engineering for advice.



Holiday Pay Update. 

British Gas has been refused leave to appeal to the Supreme Court in Lock -v- British Gas Trading.  In Autumn 2016, the Court of Appeal held in the Lock case that employees whose wages include an element of commission can no longer be paid less when they are on annual leave.  As such, the amount employees get for their holiday pay must be based on both their basic pay and any commission they are normally entitled to.

The case will now go back to the Employment Tribunal, in order to determine whether Mr Lock was underpaid and, if so, what the appropriate period for the calculation should be.

Therefore, any employers who currently operate a commission-based structure will require to include this in holiday calculations going forward, to ensure they comply with their legal obligations.

Any member companies impacted by this decision should contact Scottish Engineering for advice.



New limits for unfair dismissal awards, redundancy payments and guarantee payment.

The increases will come into effect on 6th April 2017:

  • The maximum amount of “a week’s pay” for the purpose of calculating a redundancy payment or for various awards including the basic or additional award of compensation for unfair dismissal will increase from £479 to £489
  • Limit on amount of compensatory award for unfair dismissal will increase from £78,962 to £80,541
  • Limit on amount of guarantee payment payable to an employee in respect of any day will increase from £26 to £27



ACAS has now published guidance on gender pay gap reporting for private and voluntary sector companies in advance of the snapshot date (5 April).  There are also guidance and fact sheets available for employers which can be accessed at:

The Government have also advised that public sector employers will be required to report on their gender pay gaps in similar fashion from 31 march 2017.  Draft regulations governing the public sector have been issued recently.



Keeping Up Appearances

A parliamentary report has concluded that sexist dress codes are still prevalent within the workplace and has called for a review of the Equality Act 2010, which governs discrimination law in the UK.  Two Parliamentary Committees heard evidence from hundreds of women who had been forced to wear heels (often to the detriment of their health), dye their hair blonde, wear revealing outfits and constantly reapply make-up whilst at work. 

The issue of dress codes hit the headlines last year after a female worker reported that she had been sent home, without pay, for refusing to comply with a company dress policy which specified that females must wear two to four inch heels.  Her male colleagues were not required to wear similar footwear.  The female in question set up an online petition on the government’s website which attracted over 100,000 signatures and prompted the parliamentary enquiry into the issue. 

It is not uncommon for employers to impose dress codes or appearance requirements on staff because they want to present a professional image or due to health and safety requirements.  However, it was highlighted by MPs in the report that gender specific dress codes reinforce stereotypes which could make lesbian, gay, bi-sexual and transgender workers feel uncomfortable at work and led to discrimination claims being pursued.

 It remains to be seen whether this report will lead to changes in the law.  However, it is a reminder that employers should think carefully about the content of any dress codes that they seek to enforce and identify the reason why they believe the code is necessary to the employee’s role.  Employers should also consider consulting the ACAS and the EHRC guidance on dress codes and ensure that any requirements that are put in place are applied even-handedly between men and women. 


Beware of the Christmas party!

In a personal injury claim brought by an employee against his employer in respect of a violent assault upon him by the Company’s Managing Director, it was held that the Company was not liable for the injury in the circumstances of this case.  The Company had held a Christmas party at an organised venue but a number of employees, including the employee assaulted, and the Managing Director continued to have a drinking session straight after the Christmas party at a separate venue.

It was held by the High Court in England that neither the fact the Company was expected to pay for some or all of the drinks, nor the fact that the attack was triggered by a work-related discussion, during which the Managing Director felt that his authority was being challenged by the other employee, was sufficient to outweigh the fact that the incident had arisen in the context of voluntary and personal choices by those present to continue with a heavy drinking session which was entirely separate from the official Christmas event.  However, if this had happened at the official event the Company probably would have been liable for the assault, on the basis of vicarious liability.