Tackling Loneliness in the Workplace – Employers Guide

Before the Covid-19 pandemic I had never heard of Zoom nor had I made any particular use of Microsoft Teams but both of these now are somewhat ingrained into our working lives. 

Undoubtedly, the Covid-19 pandemic has had a profound effect on the way in which employers today manage their people and their businesses.  For many, the initial move to homeworking was a welcome relief from day-to-day office life.  However, whilst it was initially novel to take our dogs for a walk during lunchtime or have a greater amount of time to spend with children, for many this change came at a significant cost – loneliness.

In consultation with a number of large employers, the Government has recently published some guidance on what employers can do to tackle loneliness in the workplace.

For many of us work can feel like a second home.  Typically, people spend as much time in their place of work as they do in their respective homes and workplaces foster within us a sense of identity and accomplishment and allow for a broad range of social interactions.  The lack of such interactions, particularly over the past year, has seen a notable increase in people feeling isolated.

Notwithstanding the obvious sociological/ mental health issues which are bound to arise due to loneliness, the Government report estimates that the economic cost of loneliness to employers is £2.5 billion per year – reporting that 80% of this is due to increased staff turnover and lower wellbeing/ productivity.

So, what can we as employers do to stop loneliness and foster better relationships within the workplace?

The report identifies five key themes to tackle loneliness at work arising from contributions made by members of the Employers Leadership Group established by the Department for Business, Energy and Industrial Strategy and the Campaign to End Loneliness :

  • Culture and Infrastructure;
  • Management;
  • People and Networks;
  • Work and Workplace Design; and
  • Action in the Wider Community.

It is suggested that organisational cultures that emphasise individualism and personal success can increase feelings of loneliness and what employers should do is create a culture whereby the importance of genuine social connections in the workplace is paramount.  This can be achieved through introducing policies and procedures demonstrate and support the importance of wellbeing and mental health.

The use of mental health first aiders cannot be understated in this situation.  The Government suggests the use of a ‘champion’ who is trained on loneliness and wellbeing.  The report believes that having such a contact for people within a given organisation is paramount to creating a less isolating culture.

While the Government report states that conducting surveys to find out what is important to employees and how they are feeling can be useful, in my view, this can only go so far.  While having a general sense of the overall mood within the workforce is valuable, the real strength in tackling loneliness is in the qualitative engagement with employees – discussing concerns and essentially building up a line of communication where colleagues feel confident in speaking with managers and members of the HR team.

Managers are a huge part of most employees’ lives.  They are the people employees ought to look to for guidance, instruction and support.  Consequently, it is important that when managers are approached for the latter, they are suitably equipped to deal with difficult conversations.  Providing support to managers through appropriate training is vital to enable them to deal with issues when they arise and pro-actively support employees and spot the signs of when an employee may be struggling with their mental health or loneliness.

While anyone can feel lonely, those who are generally most at risk are those who are out of the business for a period of time such as those on long-term sick or maternity leave.  Therefore, it is important that we ensure that as employers we keep an open dialogue (insofar as possible) with everyone in the business and create a culture of inclusivity to prevent employees in such situations from feeling excluded and marginalised.

While the vast majority of professional networks and business relationships tend to be less meaningful than close personal relationships, these networks can tremendously benefit an employee’s well-being as well as encouraging problem-solving, collaboration and innovation.

Key to tackling loneliness is promoting a healthy work-life balance.  For many during the pandemic and the circumstances that saw many forced to work from home, work-life balance was significantly eroded.  Finishing work for the day was not travelling home to family but rather, closing a laptop and moving from one room to another.  This has a knock-on effect where the working day did not have a finite end in the same way it might normally have.  In addition, this isolated working environment when typically many of us are used to working in an open-plan office or environment compounds feelings of loneliness.

As with almost all things in people management the key aspect here is understanding and communication. It is vital to ensure that employees feel that their employer is approachable.  However, the best starting point for ensuring employees feel they can speak with their employer is to take a pro-active approach in helping those struggling with loneliness.  This can be through our day-to-day interactions and having in place appropriate policies, guidance, and loneliness champions to let our colleagues know (that even if they feel it at times) they are not alone.

For a free consultation around any of the issues raised by this article, or for support any aspect of employment law don’t hesitate to reach out to our team at legal@lexleyton.co.uk

Employment Law Update – May 2021

Worker status

The Uber v Aslam domino rally has begun. In Addison Lee v Lange, the Court of Appeal has refused the employer permission to appeal the EAT’s decision that Addison Lee drivers are workers. Addison Lee provided private hire and courier services. Drivers were formally recruited and given training. They had guidelines on how to do the job. They leased branded cars. Each driver had a handheld computer from which jobs would be allocated. They could log on and off the system when they wanted. However, when logged on they were deemed ready to work and expected to accept jobs. The drivers' contractual paperwork said they were independent contractors, but drivers brought claims saying they were workers and entitled to holiday pay and the national minimum wage.

The employment tribunal and EAT said the drivers were workers. By signing up to the contract and hiring the car, the drivers were undertaking to do some work for Addison Lee. They remained subject to Addison Lee rules in between shifts: they couldn't alter the car branding, no one else could drive the car and they paid ongoing vehicle charges. As a result, there was an implied overarching contract between 'logging on' sessions. Even without the overarching contract, the 'worker' definition was satisfied each time the individuals logged into the app. This was because they were undertaking to accept jobs allocated to them (even though the contracts said they didn’t have to). They were not running small businesses on their own account. Addison Lee appealed but were told that they would have to wait until after the Supreme Court judgment in Uber v Aslam.

Preventing the employer from arguing the point further, the Court of Appeal said that there was a contract in place every time a driver logged onto the Addison Lee app. Like Uber drivers, Addison Lee drivers are workers and entitled to holiday pay and the national minimum wage. This is the end of the road for Addison Lee and a first domino down for the gig economy fight for worker status. The courts will be hoping this decision dissuades employers arguing the point unnecessarily and avoids the need for a costly and time consuming caselaw domino rally.

Equal pay

The Supreme Court handed down a final judgment in the Asda equal pay saga. In Asda v Brierley, a predominantly female group of Asda store workers are saying they should be paid the same as a group of predominantly male distribution depot workers who are paid more than them. The proposed comparators work at different ‘establishments’ – the claimants work in Asda stores and the comparators in Asda distribution depots. Section 79(4)(c) Equality Act 2010 says that if equal pay comparators do not work at the same workplace, then the employees must be on ‘common terms’ of employment to bring an equal pay claim. ‘Common terms’ isn’t defined in law, but case law has shown that the ‘common terms’ test is met where:

  • The worker and comparator are on broadly the same (or ‘common’) terms of employment.
  • Common terms apply in general for employees across the employer’s sites.
  • Individuals employed to do the kind of work as the comparator does, but at the claimant’s workplace, are on broadly the same (or ‘common’) terms as the comparator.
  • No work similar to the comparator takes place at the claimant’s workplace but, if it did, those workers would be on broadly the same terms as the comparator.

In Asda v Brierley, the 35,000 store workers were on retail terms and the distribution workers on distribution terms. Although these terms were set by different management bodies, all management was ultimately controlled by Asda’s executive board, and (as was the case then) Wal-Mart governance. The store workers terms were not collectively negotiated by a trade union, but the distribution workers were represented by recognised trade union GMB in pay bargaining.

The employment tribunal said the women could compare themselves to the distribution workers on various bases, including that there was a single source of all the employees’ terms – Asda’s executive board – which could have introduced equality. The tribunal said their terms were similar enough to be ‘common’, having been set within the same employer. The tribunal also said that the comparators would have been paid on distribution terms had they been employed at store locations. The Employment Appeal Tribunal, the Court of Appeal and now the Supreme Court agreed. With no comparator class of employees at the stores, the Supreme Court said the question was whether the comparators would have been paid in the same way had they been employed in their roles at Asda stores. The Court found that the comparators would have been on distribution terms rather than retail terms. That satisfied the ‘common terms’ test. In future, all an employment tribunal needs to do is ask whether the comparators would be employed on the same (or substantially the same) terms if they were employed at the site where the claimants worked. If the claimants and comparators are already on broadly the same terms, wherever they work, then the common terms test will already be met.

This doesn’t mean that Asda has lost the equal pay case. The claimants must now show that that they do work of equal value to the comparators and Asda can defend the claims by showing there is a genuine material factor which justifies the difference in pay.

Discrimination - compensation

If an employee wins a discrimination claim, an employment tribunal will award compensation for injury to feelings, designed to compensate the employee for the hurt and embarrassment caused by the discrimination. This is on top of any financial losses that flow from the discriminatory treatment. Although Section 119 and 124 Equality Act 2010 set out that damages can include an injury to feelings award, the guidance on how to value those hurt feelings was originally set out by the Court of Appeal in a case called Vento v Chief Constable of West Yorkshire Police.

The Vento case established three bands: a lower band for less serious cases, including one off acts; a middle band for serious cases that don’t justify a top band award and a top band for the most serious cases such as a lengthy campaign of discrimination. Only in exceptional cases will injury to feelings exceed the top band or fall below the bottom band. The award is compensatory rather than punitive, so its value is based on how the discrimination has affect the individual employee, rather than a judgement on the employer’s behaviour.

The ‘Vento’ bands adjusted each year to take account of inflation. The new rates set out below will apply to claims brought on or after 6 April 2021:

Bottom band - £900 -£9,100

Middle band – £9,100 – £27,400

Top band – £27,400 to £45,600

Claims that were brought before 6 April 2021 will still have the old rates applied: lower band £900 - £8,800; middle band £8,800 to £26,300 and top band £26,300 to £44,000.  

Sex discrimination

Direct discrimination happens if an employer treats an employee less favourably than it treats others because of sex. A female employee would need to show that she has been treated less favourably than a real or hypothetical comparator of the opposite sex whose circumstances are not materially different to hers. In Ali v Capita Management, the Court of Appeal decided that a man on shared parental leave could not compare himself to a woman on maternity leave who was paid more than him. The Court of Appeal said that the purpose of maternity leave goes beyond childcare and centres around the health and wellbeing of the pregnant and birth mother. Mr Ali’s claim failed because his circumstances were materially different to his comparator’s. The correct comparator was a woman on shared parental leave. The EAT has recently considered a similar case, this time involving a man on shared parental leave and a woman on adoption leave.

In Price v Powys County Council, a male employee wanted to take shared parental leave so his wife could return to work. He was told he would be paid shared parental leave pay, which was the same as statutory maternity pay. Under Council policies, employees on statutory maternity leave or statutory adoption leave were entitled to enhanced maternity or adoption pay. Mr Price decided not to take the leave and brought a claim for direct discrimination, comparing himself with a female employee on statutory maternity leave and a female employee receiving adoption pay, both of whom were paid at the enhanced rates.

The employment tribunal applied Ali and said the comparators’ circumstances were materially different. The purpose of statutory maternity leave was different to shared parental leave, as Ali had clearly set out. The circumstances of someone on adoption leave were also different. Adoption leave goes well beyond facilitating childcare and is designed to allow parents to take steps to prepare and maintain a safe environment for the child and time to form a parental bond. Adoption leave begins at the latest on the day of adoption, which was a material difference to shared parental leave and underlined the need for the adopter to prepare a safe environment and develop a bond with the child. The flexibility in relation to shared parental leave – which can move back and forth between parents – showed that it was designed to give parents greater choice about childcare responsibilities. Ordinary maternity and adoption leave can only be taken in one continuous block of 26 weeks which, the EAT said, showed that its purpose went beyond childcare. The EAT said the correct comparator was a woman on shared parental leave, who would receive the same pay as Mr Price.

This decision isn’t surprising and follows the reasoning in Ali, applying it to adoption leave. It is welcome clarification for employers. However, it is clear that the demand for parental leave is increasing, but the lack of enhanced pay, often in the face of enhanced schemes for maternity and adoption leave in the same employer, is stopping them. This decision doesn’t deal with the wider societal issue of how you create more equality between the sexes – and less assumption that women will bear the brunt of childcare - if payment for men taking parental leave is not equal to women taking other kinds of child-related leave. Food for thought.

Unfair dismissal

Reinstatement and reengagement are potential remedies in an unfair dismissal claim. Reinstatement means the employee is put back into the job from which they were dismissed. Re-engagement means that an employee is taken back on by the business in comparable employment to the job from which they were dismissed, or other suitable employment. An employment tribunal must consider reinstatement first, and then if it decides not to reinstate the employee, go on to consider re-engagement. At each stage, the tribunal must consider whether taking the employee back on, in their previous or another role, is practicable. Practicable means re-employment is more than just possible - it means that re-employment is capable of being carried into effect with success. The Court of Appeal has looked recently at the practicability test in Kelly v PGA European Tour.

The employee had worked for the employer for 26 years, latterly as Group Marketing Director. In 2015, the employer took on a new Chief Executive Officer. Within the first couple of months, the new CEO had concerns about the employee’s performance and his ability to ‘buy in’ to his new vision for the business. The CEO tried to negotiate the employee’s exit. During this process, the employee secretly recorded meetings. When negotiations failed, the employee was dismissed without following a fair procedure. He brought claims for unfair dismissal. The employer conceded his dismissal had been unfair due to the lack of procedure. The employee sought reinstatement or re-engagement to the business.

The employment tribunal decided the employee should be reengaged into the role of Commercial Director, China. Speaking Mandarin was an essential criterion for the role. The employer objected to this, because the employee couldn’t speak Mandarin and they felt trust and confidence had broken down. The tribunal noted that the employee was willing to learn and adept at languages. The trust and confidence issues weren’t so serious and concerns about his performance and integrity (about the recordings) could be overcome. Reengagement to this role was practicable. The EAT disagreed and allowed the company’s appeal so the employee appealed to the Court of Appeal. The Court of Appeal agreed with the EAT. An employer’s genuine belief in an employee’s lack of capability in relation to a role, or a genuine belief that trust and confidence has broken down, can mean reengagement is not practicable. The tribunal here had substituted its own view rather than considering whether the employer’s doubts about integrity and capability were genuine and rational. Reengagement to a job where the employee didn’t meet the essential criteria was perverse.

Employers will be heartened by confirmation at this level that reengagement to a role where an employee lacks essential skills, or where trust and confidence has been destroyed, is not reasonable or practicable. The Court also noted that the rules didn’t require an employer to consider vacancies that had been filled by the time the remedies hearing took place, just vacancies which existed at the time of the hearing.  Reemployment remedies are tricky as they necessarily follow a dismissal which is unfair. That will always have an impact on relationships. This case shows that the reengagement remedy is limited, and in some cases an employer can avoid it.

Unfair dismissal – Covid-19

Sections 100(1)(d) and (e) of the Employment Rights Act 1996 provide employees with protection from dismissal if they exercise their rights to leave the workplace or take other steps to protect themselves if they reasonably believe there is serious and imminent danger. There have been murmurings about employees using these provisions to justify refusing to work during the Covid-19 pandemic. Employers are nervous - if the mere existence of the virus creates a serious and imminent danger, regardless of safety measures taken, what is to stop all and any employees refusing to work? An employment tribunal has now handed down a judgment on this topic in Rodgers v Leeds Laser Cutting, giving insight into how these claims will be dealt with.

The employee had less than two years’ service as a laser operator. He was one of around five employees who worked at any one time in a large warehouse-type building. A colleague developed Covid-19 symptoms and went off work. The employee developed a cough and decided to self-isolate. At this point, the employer had already put some measures in place including social distancing, extra cleaning and staggered breaks. They reiterated government advice to staff. On 29 March 2020, the employee sent a text message to his manager that he would not be coming to work until lockdown eased because he was worried about bringing the virus home to his vulnerable child who had sickle cell anaemia. He was dismissed a month later. The employee didn’t have enough service to bring an ordinary unfair dismissal claim so he brought claims for automatic unfair dismissal under s100(d) and (e) Employment Rights Act which don’t require two years’ service.

The employment tribunal said that a reasonable belief in serious and imminent danger should be judged on what was known at the time the actions were taken. On the facts, the tribunal found that the employee didn’t believe there was serious and imminent danger in the workplace – he believed there was serious and imminent danger everywhere. That said, his evidence about his fear was undermined by his decision to drive a friend to hospital the day after he left work. The message to his manager referred to coming back when the pandemic eased, not when the workplace had been made safe. The size of the workplace and real ability to socially distance also meant that objectively such a belief was not reasonable. He could have averted danger by following the safety measures and refusing to do the occasional task that overstepped them. It wasn’t reasonable for him to absent himself from work when it was possible to socially distance. Nor had he taken appropriate steps to communicate his fears of imminent danger to his employer. Most interestingly, the tribunal rejected the employee’s assertion that Covid-19 presents serious and imminent danger regardless of what steps an employer takes to mitigate the risk. To do otherwise would mean that any employee could rely on these provisions to ‘down tools’ (as the judge put it) during the pandemic. However the judge did say that these provisions can apply to situations arising from the pandemic and every case will have to be decided on its facts.

This case isn’t binding on other tribunals but gives welcome insight into how employment tribunals may construe these provisions in relation to the pandemic. The employee in this case gave contradictory and confusing evidence which undermined his evidence about workplace danger. The workplace was large, social distancing was possible and safety measures were already in place even in March 2020. This case shows that implementing safety measures is vitally important – it will significantly reduce the risk of ‘danger’ posed to staff by the virus in the workplace and therefore the risk of tribunal claims.

Disability discrimination

The definition of disability is contained in s6 Equality Act 2010. A person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day to day activities. Substantial means more than minor or trivial. In Elliott v Dorset County Council, the EAT has looked at the test in relation to an employee who was only diagnosed with autism because of difficulties he was having at work.

The employee had worked for the Council for 34 years. He had agreed with a previous manager to record working hours as 9am – 5pm regardless of the hours he worked. A new manager started, with whom the employee had problems communicating. The manager started disciplinary proceedings for falsifying his hours of work. In reality, the employee was obsessive in the way he worked, habitually working late into the night. Whilst helping the employee with his disciplinary, his union representative recommended he have an autism assessment. It confirmed autism and Asperger’s. Whilst he was being disciplined, a restructure was announced and the employee chose to leave employment with a redundancy package in order to avoid the proceedings. He brought a claim for disability discrimination. An employment tribunal decided that he was not disabled because the impact of his autism on day-to-day activities was only trivial.

The EAT disagreed. The tribunal had set out the law correctly but applied it incorrectly. They didn’t properly identify the relevant day to day activities in the case and decide whether the disability had a substantial adverse effect on them. They focussed on what the employee could do rather than what he couldn’t do or could only do with difficulty. In considering whether the effect of the disability was substantial, the tribunal had looked at what the employee could do compared with other people, rather than what he could have done had he not had autism and Asperger’s. The EAT also said that a coping strategy doesn’t prevent an effect from being substantial unless the strategy will always work and never break down, for example if the employee is under stress. The EAT confirmed that the test is not a spectrum – if the employee can show that the adverse effect is more than minor or trivial then the effect is substantial. There is no need to look at the Equality Act guidance for further help if the answer is clear.

This is a case where an employee was only diagnosed with autism precisely because of the difficulties he was having at work. He left employment because of those difficulties. The EAT judge remitted the case to a fresh tribunal to decide whether he was disabled but gave a big hint that determining disability at a preliminary hearing may not be the best way forward. This case may make it harder for employers to argue that impairments don’t have a substantial adverse effect. Tactically, it may be better to argue disability as a preliminary point in cases where the employee has less than two years’ service and where a negative finding will knock out of the whole case.

Covid impacts on working patterns

The silver linings to the Covid-19 cloud often involve a new sourdough habit or less time commuting. The Office for National Statistics has done a study of working patterns during the pandemic which may show some more unexpected silver linings. Unsurprisingly, the study (which looked at working patterns over the last 10 years) showed that more of us are working at home, rising to more than a third of the population during the pandemic.

Far from showing homeworking meant slacking off, the survey showed that there was an unpaid overtime boom in favour of employers during the pandemic. Full time homeworkers did the most unpaid overtime in 2020, with an average of 6 hours a week of unpaid overtime compared to 3.6 hours a week for non-homeworkers. The study also showed that sickness levels for homeworkers actually fell during the pandemic, albeit at just under 1 per cent. There is a suggestion that this may mean people are working through periods of illness rather than taking time off, which may not always be a good thing.

Andrew Mawson of Advanced Workplace Associates has said that the data shows how much employees have embraced home working during lockdown with many wanting to retain this kind of flexibility in future. He said surveys suggest that only five per cent of employees are now happy to work five days a week in the office, from 45 per cent before lockdown. If employers can come to some sort of compromise with employees, a hybrid model of home and office working, the advantages may go further than overtime and sickness. Whether employees spend the freed-up commuting time on the sourdough starter or making an early start on work so they can do the school run, it’s easy to see how a better work-life balance is much more easily achieved. Happy employees are invariably more productive, and flexibility creates loyalty. Win win.

Directors' liability

Directors are governed by the Companies Act 2006, which requires them to act in good faith in the best interests of the company, taking into account the interests of employees. Directors must also exercise reasonable care, skill and diligence in their duties. A director will not be liable for a breach of contract if they are acting in good faith and within the scope of their authority.

In Antuzis v DJ Houghton, the employees were chicken catchers on a farm. They worked extremely long hours and were regularly underpaid. They were not paid holiday pay and underpaid in relation to overtime. Pay was sometimes withheld as a punishment. In 2019, the High Court found that the directors liable for those breaches of contract, as well as the company. The directors had  known about the breaches of contract and had not complied with their general duties under the Companies Act. They were not acting in good faith or in the best interests of the company and induced the breaches of contract purely for financial gain. The High Court found that they were liable for the breaches of contract, together with the company.

The remedy hearing took place recently. The High Court awarded the employees the full amounts claimed for overtime, holiday pay and wages. The employees also asked the Court to award aggravated and exemplary damages. Aggravated damages are compensatory, exemplary damages are punitive. The Court said the contractual payments would not compensate the employees for the exploitation and abuse they had suffered. They awarded aggravated damages of 20 per cent of the sums awarded to the employees. They didn’t award exemplary damages because of the high sums awarded in aggravated damages and the fact that there was no evidence that the directors had made more money than this by exploiting their staff.

This case is an example of how employees can use a variety of claims to seek financial compensation that is greater than the sums owed. This case was an extreme one, where the employees were treated very badly. Although aggravated damages may be rare in such cases, it is a shot across the bows for directors who flout their duties under the Companies Act.

Assessing current working practices and H&S challenges arising


The way in which we work changed massively over a year ago and has led to a change in mindset both on the part of employers and employees.  A year of homeworking for a large proportion of the country has had advantages and disadvantages.  Certainly many employees report positive developments in their work/life balance, caused in large part by time saved not commuting, which in turn has allowed people to spend more time on self-care or with their families (where permitted!).  From an employer’s perspective, many have had to pivot and evolve their businesses, finding new revenue streams and ways of working as a result.  A move away from the overheads of rent and utilities in respect of office space should see leaner organisations as a result.  Necessity is the mother of invention.  However, both for employers and employees the new picture may not be entirely positive.

From an employee’s perspective, those used to team working have seen a huge change in the support immediately available to them.  Anecdotally, there are many stories of the isolation of home working and the impact of this on employee mental health.  Employers are well-advised to make sure that they take steps to prevent this, perhaps by an increased frequency of one-to-ones, support calls or regular team huddles.  Employers should also be mindful of the impact of homeworking on their employees’ physical health as well as there is also anecdotal evidence of a drop in physical activity from those who are working from home.  Suddenly not having to walk to the station or for lunch has a marked impact on daily steps!

The challenges for employers are centred on taking proactive steps to avoid the issues outlined above and being mindful of the preferences of individual employees.  Health and safety rules in the UK apply as much to home workers as they do to those who have not left (or have returned to) the workplace.  Employers should guard against forgetting about home workers – out of site should not equal out of mind.  There are countless ways of increasing engagement with employees who are working from home and employers who take time to be proactive are reaping the benefits.  Regular team contact not only helps to increase positivity and reduce isolation, but it also helps to recreate some of the synergies which we take for granted when working together in the office.

In counteracting the negative impacts of homeworking, proactivity and imagination are key.  Employers will be rewarded for taking time and making effort to ensure that their people are not just surviving but thriving from home.

Are you ready to deal with the consequences of employee holidays abroad this summer?

Travel operators selling holidays abroad are hoping that this year's summer holiday season can be saved.

Personally I’m happy to say put in the UK this summer, but we know that many people are desperate for guaranteed sun and a more exotic location.

Foreign holiday plans are being discussed and bookings made whilst we wait for Government restrictions on foreign travel to be lifted and the anticipated traffic light system be announced..

But wait…… amongst this sea of excitement, does your workforce know what your policy is on dealing with any mandatory quarantine periods following their holiday abroad? Are your expectations clear or have you still to think about how you will deal with these scenarios? If you work in HR, you know how sacred holidays are to your workforce and how they can be causes of discontent in ordinary times, let alone after all the heartbreak and frustration of the past year.

To avoid any confusion or unnecessary upset, you need to have a clearly communicated and documented policy on foreign holidays and quarantine so that your employees can factor this into their plans and budgets. A key issue is to understand that any mandatory period of quarantine upon a return to the UK from foreign travel abroad automatically extends the time period the individual employee needs to be away from the workplace.

If your employees have been unable to work from home during the Covid-19 pandemic, they are not going to be able to work from home whilst subject to a mandatory managed hotel quarantine or a home based quarantine upon their return. In these circumstances, the individual employee would have to book a further period of leave to cover the quarantine period adding to the period of approved leave the employee must secure in advance of their departure for sunnier climes.

As their employer, you can choose to reject or approve a period of leave. Can your workplace accommodate a further likely 10 days away from the workplace on top of a two week holiday if they need to quarantine? Remember, any quarantine period is mandatory and subject to criminal sanctions if breached.

Quarantining employees could potentially be furloughed (subject to compliance with existing qualifying rules) but as an employer do you really want to do this?

Think about it… you will be claiming a proportion of their wages via the Coronavirus Job Retention Scheme (CJRS) scheme but also paying for their national insurance contributions and pension contributions for the period of time spent on furlough.

As we hit peak holiday season, also remember that the CJRS becomes less generous from mid-summer: whilst employers will continue to receive grants of 80% up to a maximum of £2,500, from July 2021 employers will be required to make a contribution of 10% and a 20% contribution in August and September and as it stands, the scheme is set to end on 30 September 2021.

Personally, I think it would be damaging to employee relations to allow your employees to be furloughed during any mandatory quarantine period as it pits those employees who are holidaying in the UK against those who have chosen to holiday abroad.

Employees are not entitled to SSP if they are self- isolating after returning to the UK ( unless they are suffering from Covid-19) and cannot work from home. You could choose to pay the employee an equivalent SSP sum (£96.35 per week) for any quarantine period but crucially, you would not be able to claim for any reimbursement under the Covid-19 SSP scheme. Once you take this on board, many employers will refuse to offer furlough for quarantine periods from both a moral and economic perspective.

Even if you do approve such extensive periods of leave, are your employees willing to spend a further chunk of their annual leave being quarantined in a UK-managed quarantine hotel or at home? What if an employee doesn’t have sufficient holiday to cover a period of quarantine? Will you allow the employee to take it as authorised unpaid leave? What if you reject a holiday request and your employee carries on with their two weeks’ in the sun and for example, a 10 day period in quarantine? How will you deal with it? Ensuring you consider all these permutations in advance and communicating your approach to your workforce is really important. In the event of disciplinary action, being able to evidence a clear line of communication on foreign holidays and quarantine is crucial to the soundness of any disciplinary sanction.

With summer 2021 having the potential to dramatically impact workplaces across the UK, getting your policy on foreign holiday and quarantine this year is really important. Without one, summer 2021 could be full of frustration for employers and employees alike. Don’t hesitate to reach out to me or any of our LexLeyton team at legal@lexleyton.co.uk to chat through any of the issues raised in this article or to ensure you get your policy right

Employment law update – April 2021

Being Paid for Sleeping on Shifts?  

The Supreme Court has given the final word on whether workers should get paid the national minimum wage for sleeping. The case law in this area has been conflicting, with different courts giving different judgments based on similar facts. Regulation 32(1)  of the National Minimum Wage Regulations 2015 says that a person who isn’t working may be treated as working if they are available (and required to be available) at or near a place of work for the purposes of doing work unless they are at home (emphasis added) – this is the home exception. Regulation 32(2) says that the worker is only treated as ‘available for work’ when they are ‘awake for the purposes of working’, even if the worker sleeps at or near a place of work – this is the sleep-in exception. These regulations were originally introduced to implement the recommendations of the Low Pay Commission.

In Royal Mencap Society v Tomlinson-Blake, the employees were sleeping at or near their workplaces and disturbed infrequently at night. They received an allowance for their shifts but not the NMW for each hour of it. They brought claims saying they should be paid the NMW for the whole of their sleep-in shifts. Both claims won at tribunal. On appeal, the Employment Appeal Tribunal upheld the judgment in one claim but allowed the employer’s appeal in the other. The Court of Appeal said that the employees were only ‘available for work’, not actually working, while they were asleep. As such, they were only entitled to the NMW when they were disturbed and therefore awake for the purposes of working. They were not entitled to be paid the NMW when they were asleep. The Court of Appeal went through some conflicting case law, saying some were wrong and distinguishing others, leaving the waters still muddy.

The Supreme Court agreed with the Court of Appeal. The employees were only entitled to the NMW when they were awake and working. They referred to the report of the Low Pay Commission which preceded the NMW and which the government was bound to implement. They had not intended workers to be paid the NMW while they were sleeping, only when they were awake. In this case, the employee’s requirement to keep a ‘listening ear’ while asleep did not mean she was working.

This case is good news for employers in the care sector who were facing enormous back pay bills if the appeals had succeeded. The Supreme Court went further than the Court of Appeal, saying more of the previous (conflicting) case law was simply wrong. The clarity on pay for sleep-ins is welcome. However, we are living through times where the value and skills of our care workers are under the spotlight, their vital work ever more appreciated. The Low Pay Commission report is 20 years old and there will be pressure to revisit this issue. And what of the home exception? We are currently all home working, the lines between working, being available to work and not working are ever more blurred. Although the law on sleep-ins is now clear, wider questions have not yet been put to bed.

Termination agreements

It is commonplace to negotiate severance terms before an employee leaves employment due to redundancy. Discussions usually agree the sums to be paid and formal settlement agreements are signed to create a clean break between the parties. The EAT has recently looked at a case where the parties had different ideas about what had been agreed, as well as what could be enforced.

In Evergreen Timber Frames v Harrington, the employee worked for the employer as a manager. He was told he was at risk of redundancy and his severance terms were discussed over several months. Before his dismissal, the employer wrote setting out the amounts that the employee would be paid on termination if he worked his notice and said they would like to ‘gift’ him a car. The employee wrote back (via an appeal letter) accepting the gift of the car but querying the redundancy calculation and complaining that they had agreed in verbal discussions that the company would also give him a computer and a month’s pay as a bonus. When the car was not transferred on termination, the employee then brought claims for breach of contract. The employment tribunal upheld part of his claim relating to the car, saying an agreement had been reached for its transfer as part of the severance package. It had been offered in the employer’s letter and accepted in the employee’s appeal letter. They awarded him £8400, representing its value. The employer appealed.

The EAT agreed with the employer. Termination discussions often involve back and forth conversations about different elements of the overall package. Negotiations would become too complicated if it were possible to hive off and accept one part of a deal whilst rejecting or trying to improve on other parts of it. In this case, the car was not a standalone promise but one part of a wider termination package. The employee’s letter of appeal was not acceptance of part of a deal but a counter-offer to improve the severance terms overall. The matter was sent back to a fresh tribunal on another point (to decide whether there had been a deal struck at a previous meeting to transfer the car in return for doing specific work during the employee’s notice period).

This case shows the importance of agreed written terms when employment is being terminated. The confusion in this case could have been avoided if the employer had used a settlement agreement. The discussions about its terms would have been frontloaded and confusion ironed out at an earlier stage. Settlement agreements have the added benefit of settling outstanding claims, meaning there is a clean break on termination and the certainty that there will be no future litigation.

Health and safety

Section 44 of the Employment Rights Act 1996 protects employees from employer detriment in certain health and safety cases: if they are absent from work because they reasonably believe that attendance would put them in serious and imminent danger or take appropriate steps to protect themselves if they reasonably believe they are in serious and imminent danger. The right currently only extends to employees, rather than the wider definition of workers.

New laws extending certain health and safety rights to workers are due to come into force on 31 May 2021. We reported last year about the case of R (Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions which confirmed that the UK had failed to implement EU law properly  because it limited those section 44 rights to employees. The draft order has now been tabled in Parliament and if it is approved will extend these protections to all workers.

If this Order is approved it will provide clarity in this area, at a time where health and safety is high up on everyone’s radar. The law will not be retrospective, so any alleged detriment would have to occur after 31 May 2021 to be actionable.

Working time

The Court of Justice of the European Union (CJEU) has considered two cases involving workers on standby and whether the whole of the standby period should be considered working time. The Working Time Directive says that working time is any period where the employee is working, at the employer’s disposal and carrying out their duties. A rest period is any period which is not working time. The CJEU has previously found that standby time can be working time if the employee must be physically at the workplace (or another place determined by the employer) and able to provide services immediately if required. Another case, Ville de Nivelle v Matzak, said time spent by firefighters on standby at home was working time because they were required to be at home by the employer and to respond within 8 minutes. This put significant constraint on what they could do in terms of social and personal interests during that time.

In DJ v Radiotelevizija Slovenija, the CJEU said that a period of standby wouldn’t be working time just because a worker was required to be contactable on the phone and able to return to the workplace within an hour, in circumstances where they were able but not required to stay in employer accommodation. It was for the national courts to looks at each case’s individual facts, the frequency of disturbances, the consequences of the time limit for responding and therefore the constraints placed on the worker’s ability to pursue their own interests.

In RJ v Stadt Offenbach am Main, a firefighter on standby had to be able to reach the town boundary in full uniform and in their service vehicle within 20 minutes of a call. The CJEU said it would depend on the circumstances whether a requirement to reach the town boundary within 20 minutes was working time. It repeated what it had said in DJ that what was relevant was the consequences of the response time and the frequency of call outs when on standby. The question was whether the constraints placed on the worker during standby objectively and very significantly constrained their ability to freely manage and pursue their own interests. The court noted that a requirement to be at a workplace, or another place, by an employer would be decisive in making standby working time. Time periods for responding may also be relevant - if a worker must respond to a call within a few minutes, that will necessarily constrain what they are able to do during standby. If there is a reasonable period to respond though (such as an hour as in the DJ case) standby may not be working time. The frequency of calls is also important – the more calls received during standby, the less able to pursue their own interests a worker is likely to be. It goes without saying that time actively working once called out is working time.

This case was decided after the UK left the EU. However, courts and tribunals may still have regard to post-Brexit CJEU case law if it is relevant. These cases may well be considered by UK courts and tribunals in considering cases under the Working Time Regulations 1998.

Equal pay

Employers dread receiving a claim form citing claims which have no teeth and ‘fishing’ for more information from the employer to inform their claims. Often, these claims lack any merit at all. But in some cases, getting hard data to back up anecdotal evidence can be impossible for an employee, especially when it comes to closely guarded information about pay. The EAT has recently looked at a request for supporting data in relation to an equal pay claim. This case sits against the backdrop of extensive mass equal pay litigation in recent times, originally in the public sector, for women in predominantly female roles who claim they do work of equal value to predominantly male roles within a business. Most recently, this mass litigation has moved into the private sector and supermarkets like Asda, Co-op and Sainsbury’s.

In Tesco v Element, a group of predominantly female employees who worked at Tesco stores brought equal pay claims citing male employee comparators who worked at Tesco distribution centres. They claimed they did work of equal value to the men who were paid more than them. Little information was given about the comparators in the claim forms, saying they would be clarified after the disclosure of more information from Tesco. The employment tribunal ordered Tesco to disclose more information, including how much the distribution centre employees were paid, the work they did, and potential ‘material factor’ defences for the difference in pay. Tesco appealed, arguing this went too far and saying the employees were on a fishing expedition.

The EAT dismissed the appeal. Employment tribunals have wide case management powers. The test is whether the disclosure is necessary to fairly dispose of the proceedings. The EAT noted that a claim must have some reasonable prospect of success and in this case the employees said they did work of equal value to comparators who got paid more. That was enough for disclosure to be necessary to dispose of proceedings fairly. They said that where a claim clearly had no reasonable prospects – for example if a junior clerk tried to compare her work to that of senior managers – that might result in a refusal to order disclosure (because it wasn’t necessary to fairly dispose of the case) or even strike out of the claim. The EAT said that the Tesco employees had not gone on a fishing expedition to find a claim, rather requested information to narrow and clarify their existing claim.

This case seems to place an unfair burden on employers at a stage where the merits of a claim are often unclear. However, both in big and small businesses, pay rates are often shrouded in mystery, something which the tribunal system is all too aware of. Tribunals will use their powers to order disclosure of comparator and pay information to allow the parties to be on an equal footing in relation to the facts about pay.  Better to nip things in the bud before things get to court.

Religious discrimination

Employers must not discriminate against workers on the grounds of their religion or religious beliefs. In Page v NHS Trust Development Authority, the Court of Appeal has looked at whether an employee can be fairly dismissed for the way he expressed his beliefs, rather than the beliefs themselves. 

Mr Page was a non-executive director of an NHS Trust. He also sat as a magistrate on a panel to consider the adoption of a child by a same-sex couple. He told his fellow magistrates that children should be brought up by a mother and father and that it was 'not normal' for children to be adopted by a single parent or same-sex couple. His colleagues complained and he was disciplined. He then spoke to the press, saying his views stemmed from his Christian beliefs. After they heard about the press coverage, the NHS Trust told him to stop talking to the press. Mr Page ignored this instruction and continued to give high profile interviews, including on primetime TV. He was removed as a magistrate and was suspended by the Trust. His position as a non-executive director was not renewed due to his behaviour. He brought a religious discrimination claim against the Trust.

The employment tribunal dismissed his claims. He was not dismissed because of his religious beliefs or his expression of it. He was dismissed because he continued speaking to the press despite being asked to stop. The EAT and the Court of Appeal dismissed his appeals. The Court of Appeal said that the Trust’s actions were not because of Mr Page’s religion or views on homosexuality but because he had expressed those views to the media without permission. The employee’s expression of his views about homosexuality risked hindering the Trust’s ability to perform its key functions by alienating homosexual people with mental health issues. His views went beyond those relating to same sex adoption and into opinion on homosexual activity which was more likely to cause offence. In relation to direct discrimination, the Court said he had not been dismissed because of his Christian beliefs but because he expressed his views about the ‘traditional family’ and homosexuality in the national media. The Court made it clear that Christians with traditional views could still hold public office, but there would be limits on how those views could be publicly expressed.

This case continues to highlight the tension that can arise between religion and sexual orientation in discrimination claims. In this case, the issue wasn’t the employee’s beliefs, rather his senior position within the Trust and the effect that the expression of his views, against the Trust’s instructions, could have on service users. Each case will turn on its own unique facts. Employers must conduct a delicate balancing act between the competing rights and freedoms of employees and the legitimate interests of the business.

Holiday pay

In 2017, in the case of King v Sash Windows, the CJEU established that a worker can carry over unlimited annual leave which they have been prevented from taking because the employer refuses to pay for it.  The CJEU said domestic time limits for bringing such a claim – for example, our 3-month time limit to bring an employment claim for unpaid holiday under the Working Time Regulations 1998 or unlawful deduction from wages – should not prevent workers from exercising important EU rights. In Smith v Pimlico Plumbers, the EAT has looked at whether a worker can carry forward holiday that he has taken, but not been paid for, to future years.

Mr Smith worked for Pimlico Plumbers as a plumbing and heating engineer. The business maintained that he and other Pimlico Plumbers were self-employed and not entitled to paid holiday. Mr Smith took periods of unpaid leave between 2005 and 2011. He stopped working for Pimlico Plumbers in 2011 and brought a claim for unpaid holiday pay. In 2018, in a groundbreaking judgment for the gig economy, the Supreme Court decided that Mr Smith and other Pimlico Plumbers were workers, not self-employed. As such they were entitled to paid holiday. However, an employment tribunal went on to dismiss Mr Smith’s holiday pay claim because it had been brought out of time. They did not believe that King entitled Mr Smith to ‘carry over’ a right to payment for unpaid annual leave that had already been taken.

The EAT agreed. King was about carry over and payment in lieu of accrued but untaken holiday, not holiday that had been taken but unpaid. Mr Smith’s remedy – for holiday which had been taken but unpaid – was a holiday pay or unlawful deduction from wages claim, rather than carry over of annual leave that had already been taken. Mr Smith’s last period of unpaid holiday was January 2011. He should have been paid for that in February 2011. Therefore a claim should have been lodged in May 2011 at the latest. When Mr Smith lodged his claim in August 2011, it was too late. The EAT also confirmed that Bear Scotland - the case which said that a gap more than 3 months in a series of deductions would ‘break the chain’, meaning earlier deductions would be out of time - was still good law.

This case ends a long running saga for Mr Smith and his personal holiday claim, although his litigation more generally has had an enormous impact on wider workers’ rights. Employers will welcome the clarity that claims for unpaid but taken holiday cannot be carried forward in the same way as that which is untaken. The holiday pay saga continues at pace though. The case of Agnew – which decided, contrary to Bear Scotland, that gaps of more than 3 months in a series of holiday pay deductions may not be fatal – is going to the Supreme Court in June. This is another issue which employers hope will be put to bed in summer – in their favour.

Monitoring Remote Working Employees?

Remote working has hidden employees from sight, causing some employers to worry about what their staff are doing during working hours. The Guardian has reported that one of the world’s biggest call centre companies is planning to install surveillance systems to monitor what their staff are doing, whether that’s working, eating or going to the toilet. Teleperformance, which employs 380,000 staff in 34 countries, works for big names in Britain such as the government, NHS Digital, Vodafone, Aviva and the Guardian itself. The article says that there is nothing to suggest that these companies know about this surveillance plan and Teleperformance has now indicated that surveillance will not be rolled out in the UK. Teleperformance has said that the surveillance plans evolved from employees saying that they felt isolated while working at home.

Do employees need this kind of monitoring to do their jobs? There will always be some employees who take advantage of being invisible to managers. But in normal times, these people take a few minutes extra for lunch, hang out too long at the water cooler and do their online shopping while they should be working. Most employees understand that they need to get the job done, regardless of where they are doing it. Sticking a camera in someone’s face and asking them to tick a box before they go to the toilet is insulting and infantilising. It is likely to breed distrust and cause the majority of hardworking employees to feel aggrieved. It won’t help businesses to recruit and retain the best people.

The best way to monitor performance is to do just that - monitor performance, just as you would in the office. Apply clear and measurable targets. Conduct appropriate day to day management. Create an open dialogue between staff and management. You don’t need a camera to see what your staff are doing. You need good management.

Flexible working

The minister for Women and Equalities, Liz Truss, has asked employers to make flexible working a standard option for employees. She believes this step would boost both productivity and morale and improve employment prospects for women - who are twice as likely to work flexibly while they juggle childcare responsibilities - as well as those who don’t live close to big cities. The Government Equalities Office has published a report, ‘Encouraging employers to advertise jobs as flexible’, by the Behavioural Insights Team and the jobs website Indeed. The report said that job applications increase by 30 per cent when flexible working is offered.

Some employers are already trying to harness some of the positive effects that the pandemic has had on work patterns. PWC is one of the businesses embracing this. They announced in March that employees can work from home a couple of days a week and start as early or late as they like, giving staff much more control over their work. They have said that staff can condense their hours and knock off early on Fridays this summer, as a nod to the testing times everyone has had to overcome. Chairman Kevin Ellis has said he hopes that the changes make flexible working the norm rather than the exception. He wants staff to feel trusted and empowered.

This might not work for every business. Goldman Sachs CEO David Solomon has another intake of 3000 new recruits this summer who need hands on training and mentoring to learn their trade. He said that working from home is an ‘aberration’ which he wants to correct as soon as possible, with young employees needing direct contact and mentorship that can only be achieved in the office.

Every business is different. But it’s worth heeding Mr Ellis’s belief that conscious planning is needed to ensure that silver linings of Covid are not lost when the economy finally opens up. Now is the time to analyse what has worked over the last year for your business and what hasn’t. We are at a crossroads: the same path won’t suit every business, but everyone should make an active choice about the direction they want to go.

National minimum wage

The National Living Wage (previously known as the national minimum wage) increased from 1 April to £8.91, the equivalent of more than £345 a year for a full-time employee. For the first time, adults aged 23 and over will qualify for this top pay rate, rather than 25s and over. The new rates are:

  • Age 23 and over - £8.91
  • Age 21 and 22 - £8.36
  • Age 18-20 - £6.56
  • Age 16 and 17 - £4.62
  • Apprentice rate - £4.30

The situation is different for those employees on furlough who must wait longer for their pay rise. Their wages won’t have to increase by law until they go back to work, so they remain on the previous rates in the meantime. That means those businesses in the worst hit sectors, like hospitality and retail, won’t feel the increases until they are back open and cash is coming in.

Download our handy Key Employment Figures for 2021

LexLeyton Spotlight: Laura Jackson

What does a typical day as an employment law solicitor and business partner to a wide range of employer clients at LexLeyton look like for you?

We always start the day with a team call. It’s a nice way to check in with everyone, as well as discuss any legal updates – over the past year the law has been changing rapidly so there is always plenty to talk about!

I usually have project work on the go for various clients so I might have planned some of that for the day, and I usually have some video call meetings booked in too. Throughout the day I’ll get calls and emails from lots of different clients looking for advice on things that have cropped up.

I’m a working parent so when work stops my other job as a mum starts. My mini clients can be very demanding!

What is your favourite part about working at LexLeyton?

Without a doubt it’s the team that I work with. I can honestly say that I have never felt so supported within a team, this has been especially welcome given that I joined LexLeyton around a month before we originally went into lockdown. We also do genuinely work as a team and everyone is so willing to help each other out.

What are the biggest challenges you face in your job?

The last year, since the onset of the pandemic, has been a challenging one.  Life as we knew it went out of the window, and overnight the advice our clients needed from us changed. Having to stay on top of all the legal changes whilst also juggling the effects of the lockdown in my personal life was a real challenge! This is where having such a supportive team has been invaluable.

What is your proudest moment at LexLeyton?

Successfully defending a claim in the Tribunal on behalf of a client who was being pursued by a serial litigant felt pretty sweet!

What do you like to do in your free time?

I love running. Not only does it make me feel good to feel physically fit, I love that bit of time and head space that I get all to myself. Once the kids are in bed I like to watch an episode of whatever box set we’ve got on the go. At the moment it’s Snowpiercer on Netflix.

What is your guilty pleasure?

Chocolate. My children got a good haul over Easter which I shall take great pleasure in eating whilst they are in bed!

What is one thing you can’t live without?

My kids. They drive me up the wall a lot of the time but they are awesome little people. Nothing beats a cuddle on the sofa with them.

What is your favourite quote?

“It is what it is.”

Probably not very inspirational but I think there’s a lot to be said for just getting on with things as best you can.

What is your biggest fear?

When I was a teenager I had a really bad fall and broke both of my arms. I’ve still got a bit of a phobia of falling and breaking something again all these years later.

What is something that not many people know about you?

I am very good at keeping secrets! My Mum always says that if you’ve murdered someone you should tell me because I’d never tell anyone…..though please don’t tell me you’ve murdered someone, because I am a lawyer and I would in fact probably have to tell someone.  


Practical tips for managing stress within your team

Stress is a response to feeling under pressure. It’s the bodies’ way of letting someone know there is a challenge to overcome. When it’s under control and well managed stress usually leads to positive responses and outcomes; managing time better to meet a deadline or changing your strategy to hit a sales target for example.

When stress is poorly managed or neglected it becomes chronic and toxic. It hinders performance, it spreads through a business and ultimately leads to bigger challenges like long term absence and grievances. It’s essential therefore, that managers and HR professionals play an active role in identifying and managing stress within their teams.

I’d recommend following your business’ unique policy for managing stress and other mental health illnesses but here are some practical tips too.

  1. Step out of the bubble

Provide them with some freedom to step out of the bubble and think. Running is a great option, half an hour on the trails and you’ll have a completely different mind-set when you get back to the desk. Labouring over the problem is counter-productive.

2.Diagnosis

You need to know what the challenge is before you can tackle it. Often this will be obvious; a challenging client, a dispute, a heavy case load. Sub-conscious or perpetual stress though could be rooted in your personal life for example. You don’t have to be an amateur psychologist, start by asking the obvious questions, when did you start feeling stressed, what do you think caused it?

3. Talk to the coach

If you’re not scoring enough goals you learn from someone who is or you speak to your coach. Yet at work, we’re reluctant to ask for help and we have to be seen to know everything. Create an environment which prioritises knowledge sharing, collaboration and best practice where people are more inclined to ask for help.

4. Make a plan

They’ve cleared their head, diagnosed the problem and sought some advice. Time to make a plan. Encourage them to think objectively about what they need to do to relieve the pressure. Sort a heavy workload into priorities, back-solve a punchy sales target, look at the facts in a dispute etc. Encourage them to be creative with problem solving and be open-minded to different ways of working. Help them to create smart targets to work their way out of trouble and schedule regular check-ups to re-evaluate the plan and show support.

One of the biggest causes of stress at work is the feeling that you have no control over your work. Your role in helping colleagues to manage stress is not to tell them what to do but to listen and guide them. Ultimately they need to follow these steps to gain control of the problem and learn how to manage stress in future.

World Autism Awareness Day: focus on neurodiversity in the workplace

More than 11 million people in the UK have a disability, but the majority do not display visible obvious symptoms or use aids that indicate they are disabled. As 2nd April is World Autism Awareness Day, it’s a good time to focus on neurodiversity in the workplace and the unique challenges it presents.

“Neurodiversity” is a term used to describe the variety of brain makeups found in individuals. It includes conditions such as autism, dyslexia, dyspraxia, ADHD, and Tourette’s syndrome.

Not all neurodivergent individuals have been formally diagnosed: some may be unaware they are neurodivergent or waiting for an assessment. The range of neurodivergent traits is broad: examples include non-linear thought, a superior ability to concentrate, attention to detail, and the ability to see patterns in data.

According to a 2018 CIPD poll, only 1 in 10 organisations includes neurodiversity in their people management practices. It’s apparent that many organisations do not know how to approach neurodiversity. The world is set up for “neurotypical” people and, unfortunately, there’s still a real lack of understanding as to how we can accept and appreciate neurodiverse people and what they can contribute.

For many neurodivergent individuals, the biggest hurdle is getting through the door. The standard recruitment process is a barrier to entry for many because their communication styles may not be best suited to conventional interviews. For example, a candidate who has difficulty maintaining eye contact may appear rude at interview and fail as a result.

In the hope of changing perspectives about neurodiverse job applicants, a young autistic man called Ryan Lowry recently posted on LinkedIn a letter he wrote to potential employers. It quickly went viral. In the letter Ryan asked employers to “take a chance” on him because, although he did not “learn like typical people do”, he was a quick learner and good with technology.

In a much-welcomed move, some employers are now starting to take steps to increase neurodiversity in their workforce:

  • In 2015 Microsoft launched a pilot project to hire autistic individuals. The tech giant recognised that traditional hiring processes could be a barrier to entry so it changed its recruitment practices.  Candidates are first invited to work under observation for a two-week trial period before progressively more formal interviews take place.
  • In 2015 JPMorgan Chase rolled out “Autism at Work”, a global programme aimed at increasing the bank’s autistic recruits. More than 150 employees have now been hired through the programme which boasts a 99% retention rate.
  • In 2016 Deutsche Bank started an autism internship programme in the UK. By 2020, 24 interns had passed through the programme and 85% had secured ongoing employment as a result.
  • In 2017 Yahoo set up a Neurodiversity Employee Resource Group intended to help neurodivergent individuals be more open about their strengths and challenges, and to address their workplace needs.

These businesses have recognised that the greater the diversity of the talent pool in the organisation, the better chance there is of valuable innovation and creativity.

Recruitment of neurodivergent talent is not the endpoint: it’s also important that employers use appropriate measures to increase inclusivity. For example, as part of its Autism at Work programme, JPMorgan trains managers in how to understand autistic communication.

Another point for employers to bear in mind is that being neurodivergent may amount to a disability under the Equality Act 2010. Employers should therefore remember they are obliged to make reasonable adjustments to remove anything that may place a disabled job applicant or employee at a substantial disadvantage. For example, GCHQ permits neurodiverse candidates to bring notes and mind maps into interviews.

In particular, the following advice is recommended for businesses hiring neurodivergent employees:

  • Accept the individual skills and interests that neurodivergent people can bring to the workplace, and determine how best to appreciate and work with these.
  • Understand the importance of choice: some adaptations might be beneficial to one group of neurodivergent individuals, but not another. For example, give employees the choice of different work environments, an individualised timetable, the option to have varied working hours (so as to avoid travelling in peak times, for example), flexible working arrangements, and clear directions.
  • For autistic employees, appreciate that the spectrum is incredibly wide and varied; a one-size-fits-all approach will not work.

Acas has guidance for employers on changing the workplace to better support neurodiversity: https://archive.acas.org.uk/index.aspx?articleid=6679.

For advice or training on the issues raised in this article, or for help with addressing diversity and inclusion issues in your workplace, don’t hesitate to reach out to our specialist employment team for a free consultation or contact us at legal@lexleyton.co.uk.

This article has been prepared with contributions from Rosanna Durance, Specialist Autism Trainer, who we wish to thank for her assistance.

Being faith-friendly – Employer’s guide to Ramadhan

If recent weeks have shown us anything, it is the power of togetherness.  We have adapted and sacrificed for one another. We have adopted collective behaviour and demonstrated personal discipline. As a community we have supported those in need or less fortunate than ourselves.

The holy month of Ramadhan commences around the 13th of April this year. This is an Islamic festival which is observed by Muslims across the globe. Ramadhan lasts for a lunar month and during this time many Muslims refrain from eating or drinking during hours of daylight. There is more to fasting than may first appear. Muslims also adopt a mindset of caring for those in their community, supplying cooked food and essentials to those who struggle to provide for themselves. They pray for and support their neighbours. They pay fitrana for every member of their household; money to support charitable causes.

Whilst some Muslims typically seek to take time off work during Ramadan, many are likely to continue working during the month if they are able.

Fasting may effect productivity and concentration levels as well as increasing fatigue. It is important for employers to understand the challenges facing their employees during this time.

Employers can seek to support their employees who are observing this festival.

1. Accommodate flexible working

ACAS guidance and the ECHR Code of Practice suggest adopting a practical approach and discussing with the employee whether there are any temporary arrangements which could be put in place for the duration of Ramadhan.

One way in which to do this is to offer employees who are observing Ramadhan the option to work flexibly, this could involve:

  • Holding meetings at more suitable times during the day;
  • Arrange working hours differently for the month – some staff may wish to start their day earlier or later or work through their lunch hours.

2. Rest breaks

Individuals observing the festival should be encouraged to take rest breaks where needed. They may also wish to practise their faith more during Ramadhan than they do at other times of the year and employers should be sensitive to this, and try to accommodate requests to take more breaks during the day than would ordinarily be taken.

3. Annual leave requests

Employers may find that there is a high demand for annual leave from those who are observing the festival, particularly during the end of Ramadhan which is marked by the festival of Eid. It is difficult for employees to plan in advance because Ramadhan is based on the lunar calendar, so annual leave requests may be made at short notice.

Employers should ensure that they deal with annual leave requests in a fair manner and in line with the annual leave policy. Where it is not possible to grant leave, employers should provide reasoned, rational justifications for the refusal. In addition, where annual leave requests are granted for those observing the festival, employers should ensure that other employees do not suffer any detriment as a result. 

4. Awareness, tolerance and understanding

Values such as awareness, tolerance and understanding are the cornerstone of nurturing a healthy employer/employee relationship. Employees will feel valued where employers try to understand what is important to them, whether that is in relation to their faith or otherwise.

Employers could introduce a clear policy on Ramadhan, or better yet, on religious festivals generally, setting out what the expected employee standards are, and what employees observing religious festivals can expect in terms of support. Having such a policy should have an affirming impact on employees.

Some employers go a step further and proactively engage in recognising religious festivals with their workforce.

Being an open, accepting and considerate employer where you can show yourself as progressive in your thinking and approach will no doubt have a positive impact on the ethos of your organisation, and will help to ensure that you continue to attract a diverse and balanced workforce.

For employers wishing to know more, here is the Ramadhan timetable for Glasgow 2021, setting out prayer times and other key information. Muslims will fast during the daylight hours, between the times highlighted in turquoise. This information may vary depending on location.

Kickstart Scheme – Guide For Employers

The "Kickstart Scheme" is a Government initiative that provides funding to employers to create job placements for 16 to 24 year olds who are on Universal Credit or "deemed to be at risk of long-term unemployment" following the economic impact of the Covid-19 pandemic. 

Which employers are eligible?

The scheme is open to any organisation, but there are important restrictions that apply to placements. 

Job placements must:

  • be a minimum of 25 hours per week
  • last for 6 months
  • pay at least the NMW or NLW for the employee's age group
  • require only basic training.

Importantly, job placements must be new jobs.  The funding cannot be used for placements that replace existing vacancies or are a means of causing existing employees to lose work or reduce their existing hours.

Once an employer has created a job placement, it can be taken up by another young person once the first successful candidate has completed their six-month term.

Which individuals are eligible?

Job placements are only available for candidates who are referred to the employer by the Department for Work and Pensions (DWP). Once the employer’s application for the scheme is successful, they must send the DWP job descriptions. The DWP then refers suitable candidates to the employer who can interview them and decide which to offer placements to.

How to apply

Directly

In January 2021, the Government removed a limit that previously required employers to create a minimum of 30 job placements before they could apply directly for the scheme. From 3 February 2021, employers became able to apply to the scheme directly without needing the 30-placement minimum: 
https://www.gov.uk/guidance/apply-for-a-kickstart-scheme-grant

In the application, the employer must provide the Government with quite a lot of information, including any redundancies in the past 6 months and alternative sources of funding for jobs.

Via a gateway

There are 600 "Kickstart gateways" through which employers can apply for the scheme:
https://secure.dwp.gov.uk/find-a-kickstart-gateway

Gateways include local authorities and chambers of commerce.  They can help provide a local connection and support with utilising the scheme.

What will you receive

Employers who are accepted onto the scheme will receive a letter and a grant agreement, which they must sign and return before any job placements can begin.

Under the scheme, participating employers will receive Government funding for 100% of:

  • minimum auto-enrolment employer contributions,
  • relevant NMW; and
  • employer NICs;

for 25 hours a week for each eligible employee during the 6-month work placement. 

Employers also get £1,500 per job placement to be used for "setup costs" and supporting the young worker in developing "employability" skills, e.g. coaching on getting long-term work, CV writing skills, interview preparation, etc. The employer must first confirm that the young person has started work, is on their payroll and is being paid via PAYE before it can receive the setup costs payment.

Employment Law Changes in April 2021 – Employer’s Check List

Many of us are fixed on the important date of April 12 2021 when all shops are open and we can get a haircut! However, it’s also the point in the HR year when key changes become operational.

IR 35

If you’re not aware, IR35 is a tax anti-avoidance rule designed to prevent would-be employees from avoiding income tax by offering services through intermediaries.

 IR35 legislation specifically relates to the employment status of contractors, their relationship to clients, and taxation. From 6th April 2021, medium and large companies will be liable for determining the status of any off-payroll contractors they engage via intermediaries.

IR35 changes were put on hold last April 2021 but now become operational from 6 April 2021. The proposed IR 35 reform represents the biggest changes to employment tax for decades.

The new rules apply to businesses which meet 2 of the following 3 criteria:

  • turnover in excess of £10.2 million;
  • a balance sheet in excess of £5.1 million;
  • 50 or more employees ( including contractors).  

In addition to paying any tax and NI due, businesses who are found to be in breach of IR35 could also face financial penalties.

Gender Pay Gap Reporting

Gender Pay Gap reporting was suspended on 24 March 2020 as the Covid-19 pandemic took hold. This time, the Government has retained the reporting requirements but has put back the dates for the enforcement of reporting requirements to 5October 2021.

Those businesses with over 250 employees are still encouraged to undertake their reporting before October. If you have the figures, submit them as soon as possible and get ahead of the curve.

With some 10,000 companies registered for  pay gap reporting, it will be interesting to see how the Gender Reporting Gap figures have been affected by furlough especially when it is widely accepted that women have been disproportionately affected by the pandemic.

Many commentators are anticipating that Covid-19 will have had a significant effect on the gender pay gap. However delayed reporting regime may obscure the full impact of Covid-19 on the gender pay gap for a while.

It’s worth also considering how a company’s commitment to gender equality may be demonstrated by reporting to the original April 2021 deadline.

National Minimum Wage Rates

Whilst April is always the time that increases in the national minimum wage rates, this year there is a subtle but significant change related to age boundaries as the National Living Wage rate will now apply to 23 and 24 year olds (previously 25 years old +). You will need to audit your payroll  to establish which individuals are now eligible for the new rate of £8.91 per hour.

Update Statutory Redundancy Pay Calculations

The capped figure for working out statutory redundancy pay also increases from £538 to £544 per week for all dismissals on or after 6 April 2021.

It is estimated that some 800,000 jobs were lost from payrolls since the Covid-19 pandemic began, with around 370,000 people made redundant between August 2020 and October 2020 alone. As the furlough scheme starts to unwind towards it end on 30 September 2021 sadly we can expect further rounds of redundancies impacting on these already significant figures.

Family Related and Statutory Sick Pay

Statutory sick pay increases to £96.35 from 6 April 2021 onwards. It’s a figure that has been front and centre of the UK Covid-19 pandemic and one which has generated calls for a review and increase.

Interestingly, Matt Hancock Secretary of State for Health is reported to have raised  the issue at a meeting of the Government’s Covid-19 Operations Committee in a bid to create a healthier nation and the TUC in have consistently described the UK’s low SSP rates as a “gaping hole” in the test and trace programme.

Statutory Maternity, Paternity, Shared Parental Leave and Parental Bereavement Leave are increased to £151.97 per week.

Shared Parental leave continues to be a hot topic. It’s interesting to note that the latest figures from HMRC show that uptake of Shared Parental Leave during the four quarters of 2018/9 financial year was 15,900 but this figure does not reflect the annualised figure which is still as the Maternity Alliance highlights, ‘chronically low’.

If a free consultation would help your business get ready for the April 2021 changes or if a chat through on any other HR or employment law area would support your planning for the year ahead, don’t hesitate to get in touch with our expert employment law team on legal@lexleyton.co.uk

Statutory Flexible Working Requests in a Post-Covid World

For many employers, most if not all of their employees at some point, will have been working at home during the pandemic.

Lockdown in its various forms has now been going on for so long that for many people working at home is now their ‘normal’, and no longer ‘new’.

Whilst the benefits of working at home were much championed during the early days of the pandemic, with time, businesses and employees have gained an informed perspective on what works for each of them and what doesn’t. 

As the vaccine programme gains momentum and the road out of lockdown becomes clearer every day, we can now see the light at the end of the tunnel for businesses and employees who want to be back in the workplace. 

Forward-thinking businesses have taken the time to plan their future workforce strategies and determine what model around remote/on-site working will be best for their business, informed by all drivers to include feedback from their people.  This thinking will prove invaluable to the companies that have done it, as they start to receive, as so many employers will, increasing requests from employees to work differently in the future. There’s a lot for employers to consider if an employee does ask to change the way they work.

Our guide explains how employees should raise a statutory request to change how they work and how employers should respond.

If an employee asks to work differently, for example, more days from or wholly at home, what is this called?

It’s called a Flexible Working Request

There are strict rules around Statutory Flexible Working Requests which include:

  • It must be in writing and dated
  • The change to working conditions being sought;
  • When the employee would like the change to come into effect;
  • What effect, if any, the employee thinks the requested change would have on the employer and how, in their opinion, any such effect might be dealt with; and
  • A statement confirming the employee is making a statutory request and if and when they have made any previous application for flexible working.

It is important to be aware that employees can make a statutory or non-statutory (informal) request. If your employee does not follow the Statutory Flexible Working Request procedure detailed above, you won’t have to treat it as a formal request and are not obliged to follow the steps which we will describe below in responding to the request.

If the request is informal, you have several options:

  • you can accept the request or;
  • refuse the request (as long as it isn’t discriminatory) or;
  • advise the employee to submit a Statutory Flexible Working Request or;
  • advise their request will be treated as a Statutory Flexible Working Request if the employee agrees.

Which staff are eligible to request Statutory Flexible Working?

Only your employees are eligible, and they must have been employed for 26 consecutive weeks. Employees can only make one Statutory request per year.

What changes can be requested?

There are a wide range of changes that an employee is entitled to ask to be considered.

  • Change or reduce hours of work
  • Change the place of work
  • Split place of work between home and office
  • Job share with another person
  • Compress full-time hours into fewer days
  • Have a degree of self-controlled flexitime

What process must an employer follow after receiving a request?

An employer must deal with the application 'in a reasonable manner'.

The Code of Practice on Handling in a Reasonable Manner Requests to work Flexibly provides guidance on what an Employment Tribunal will consider "reasonable" in making a decision about the request.

You must:

  • Give real thought to the request;
  • Provide an outcome within three months; and
  • Discuss it with the employee and allow a colleague to be present.

Can I refuse a Flexible Working Request?

Yes, but an employer is only entitled to refuse the application based on any of the following grounds:

  • the burden of additional costs,
  • detrimental effect on ability to meet customer demand,
  • inability to re-organise work among existing staff,
  • inability to recruit additional staff,
  • detrimental impact on quality,
  • detrimental impact on performance,
  • insufficiency of work during the periods the employee proposes to work,
  • planned structural changes, and
  • such other grounds as the Secretary of State may specify by regulations.

Instead of simply refusing the request - if an employer is not sure about approving the request, a trial period can be offered, or the request can be granted subject to frequent reviews.

What risks do employers face in refusing an employee Flexible Working Request?

Flexible Working Requests should always be considered comprehensively and from all angles. If a request is going to be refused, be sure there are good reasons. An employee can bring a claim in the Employment Tribunal against their employer if their request is ignored, if the statutory procedure is mishandled or if the employer rejects what may ultimately be found by the Employment Tribunal to have been a perfectly reasonable and workable request.

In the post-pandemic world, if an employer wants their workforce to come back into the office fully or in some capacity, it will be important that they take the time to think through the impacts, and prepare a business plan to help inform and support how to respond to flexible working request in an efficient, fair and consistent manner.

In working through your strategy, there are several things to consider in deciding whether the quality or performance of your workforce would be impacted by them remote working wholly or in part on an indefinite basis:

  • Have you experienced less innovation in your business due to working from home?
  • How key to the maintenance and development of your business culture is having people physically together?
  • Will only having part of the workforce in the office create a conflictual dynamic: will some employees have to pick up others' physical tasks – printing/scanning/filing?
  • Has mentoring and collaboration suffered while staff were at home?
  • Have employees found it difficult to know when to switch off from work? Has it had any detrimental mental health impact on your workforce?
  • Whilst everyone was at home, client and consumers might have been happy with video calls, but what if they want one-on-one interactions again?

What other risks are there to think about when considering a Flexible Working Request?

It’s important to keep in mind that it is unlawful to subject an employee to a detriment or dismiss them for making a statutory flexible working request.  

Equally, it is unlawful to discriminate against an employee in deciding whether or not to grant a request – and that's the case even if the request was informal.

For example, refusing all applications for part-time working could be deemed indirect sex discrimination. Unless the employer can justify the policy by showing they have a legitimate and proportionate business aim, this will be indirectly discriminatory to women. The statistics show that women are still more likely to combine paid employment with caring responsibilities. Bear in mind; it could also be deemed disability discrimination if the proposed arrangement you refused could amount to a reasonable adjustment. For a free consultation on any of the issues raised in this blog or around any other HR or employment law matter connected with your workplace return to strategy don’t hesitate to reach out to our expert employment law team on legal@lexleyton.co.uk


Employment law update – March 2021

Uber and the gig economy – where are we now?

The long running Uber v Aslam saga has finally come to an end. The Supreme Court has confirmed that Uber drivers are workers rather than self-employed contractors. As such, drivers are entitled to basic employment rights such as the national minimum wage, paid holiday and rest breaks. The Supreme Court upheld the decision of the employment tribunal and changed the emphasis for determining worker status. A ‘worker’ is defined by section 230(3) of the Employment Rights Act 1996. The statutory definition includes  employees and anyone else who works under ‘any other contract…whereby the individual undertakes to do…personally any work…for another party’ provided the other party isn’t a client or customer of the individual (which would make them genuinely self-employed).

Uber and other gig economy cases have shown that written contracts can mask an entirely different state of working affairs. Instead of looking at the individual’s contract with the business, the Supreme Court said the starting point should be the statutory definition. It is important to consider what the statutory wording was designed to achieve in the first place – the protection of vulnerable workers from being paid too little, being required to work too much, or being treated otherwise unfairly. The Supreme Court noted that many individuals in the gig economy do not have the negotiating power to match the businesses they work for. In this case, drivers were subordinate to and dependent on Uber. This imbalance in power means that the contract cannot be the right starting point, as it was drafted by the party who holds all the cards. Laws such as the national minimum wage and paid holiday were brought in to protect individuals and that protection would be undermined if those rights could be circumvented by some clever contract drafting.

In this case, the evidence showed that Uber exercised significant control over drivers in relation to the work, from the car they drove, the price a customer paid and whether drivers could accept or decline work. That control made the drivers workers. A genuinely self-employed person could make these choices for themselves. The contracts were designed to mask the true relationship to Uber’s advantage.

The key point for businesses from this case is that contracts can never trump statute on this issue. If the starting point for deciding worker status is the statute itself, then it doesn’t matter how you dress up the relationship in any contractual documents. This decision will be costly for Uber. The Supreme Court agreed that the drivers were working when they were logged into the app not just when they were driving. The value of drivers’ backdated claims for national minimum wage will be enormous, and that’s before considering paid annual leave. Who’s holding the cards now?

Harassment

Harassment occurs if an employee (X) engages in unwanted conduct relating to a protected characteristic (such as sex or race) which has the purpose or effect of:

  • Violating another employee’s (Y) dignity or
  • Creating an intimidating, hostile, degrading, humiliating or offensive environment.

X’s employer will be responsible for harassment which takes place during the course of their employment unless they can show that they took ‘all reasonable steps’ to prevent X from behaving that way or doing something similar.

In Allay v Gehlen, the employee was of Indian origin and employed as a senior data analyst between October 2016 and September 2017. During that period, a colleague regularly made racially discriminatory comments to and about him. Mr Pearson commented on Mr Gehlen’s brown skin, suggested that he should work in a corner shop, noted that he drove a Mercedes ‘like all Indians’, and asked why he was in this country. Mr Pearson described the comments as ‘banter’. Another colleague and two managers were aware of the comments, but nothing was done except one manager issuing a mild rebuke to Mr Pearson. Mr Gehlen brought a harassment claim. The employer tried to defend the claim by saying that they had equal opportunities and anti-bullying/harassment policies and had trained staff on their terms. As such they had taken all reasonable steps to prevent this kind of behaviour.

The employment tribunal upheld Mr Gehlen’s harassment claim. They accepted that the employer had policies and had done training, but the standard was poor even for a small employer. The training had taken place in January 2015 and had become stale. The fact that one colleague and two managers failed to challenge the harassment showed that any training had worn off. The employer had not taken all reasonable steps to avoid discrimination - a further reasonable step would have been to provide refresher training. The Employment Appeal Tribunal agreed. If there is a further reasonable step that an employer should have taken, the defence will fail, even if it would not have prevented the discrimination occurring. The EAT noted that the employer had now provided Mr Pearson with additional training, and they wouldn’t have done so if they thought it would be ineffective.

This case shows that the ‘all reasonable steps’ hurdle is a high one to clear, even for a small employer. It isn’t enough to have policies and training – they must be good quality and the message cannot be allowed to go stale. The courts noted here that the message of any training had clearly been lost because staff both made and ignored obviously racist comments. Annual refresher training is a must. So is revisiting policy and practice to see whether there are other reasonable steps which could be taken to protect employees from harassment. This will help protect a business from liability.

Whistleblowing

A worker is protected from detriment and dismissal if they have made a ‘qualifying disclosure’. The worker must reasonably believe that the disclosure is in the public interest and tends to show wrongdoing such as a failure to comply with a legal obligation. The public interest element of the test is designed to differentiate between personal interests and those which have a wider application. But the worker need only reasonably believe that the disclosure is in the public interest (rather than it actually being so) and it doesn’t have to be the worker’s only motivation in making the disclosure. The EAT has recently looked at the public interest requirement in Dobbie v Feltons.

The employee worked for a firm of solicitors as a consultant solicitor, working with one of the firm’s biggest clients. He made what he said were protected disclosures about the firm overcharging the client. One of his disclosures also related to his own fees being written off to a greater extent than other fee earners. He said he had been treated badly because of these disclosures including having his consultancy agreement terminated. He brought a whistleblowing claim.

The employment tribunal found that the employee reasonably believed that the disclosure tended to show the breach of a legal obligation - he believed the overcharging was a breach of the firm’s client obligations and a possible breach of accounting rules. However, they found that he did not reasonably believe that his disclosure was in the public interest. They found that he believed it was a private matter relating to the individual client. The employee appealed to the EAT who agreed with him. The tribunal had misapplied the public interest test. They hadn’t considered the identity of the alleged wrongdoer – a firm of solicitors which is subject to high standards of honesty and integrity. The nature of the wrongdoing had not been properly considered either, which included potential regulatory breaches. Those regulations are in place to protect the public. Although public interest is more likely to be found when more people are affected, there are cases where disclosures relating to one person can have a wider remit. Here, the disclosures could have advanced a wider public interest around solicitors complying with regulatory requirements and not overcharging their clients. Having found that the employee reasonably believed that there had been regulatory breaches by way of overcharging, the tribunal had not explained their finding that this was a purely private matter and wasn’t protected. The EAT sent the case back to a fresh employment tribunal to reconsider whether the disclosures were made in the public interest.

This case shows that disclosures can be made in the public interest in cases which relate to apparently private matters. This can be the case even when matters may be motivated by self-interest – in this case the solicitor’s own fees being disproportionately written off. Provided the employee reasonably believes that the matter is in the public interest, the test will be satisfied. Even if issues relate only to one client or person, they may have a wider public interest as was the case here.

Unfair dismissal

Conduct is one of the potentially fair reasons for dismissing an employee. It is the employer’s job to show that conduct was the reason for the dismissal in question. An employment tribunal will then decide whether the dismissal was fair. In making that decision, the tribunal will look at the size of the employer and the resources it has available and decide whether the decision to dismiss fell within the range of reasonable responses. A fair procedure is also key to a fair dismissal.

In Northbay Pelagic v Anderson, the employee was a director of a seafood company. He was dismissed for gross misconduct at the same time as two other employees. The cases were connected but not identical, so the employer got three HR consultants to investigate and hear the cases. The grounds for dismissing Mr Anderson were various but included failing to follow a management instruction and covertly recording anyone who came into his office via a secret camera (he wanted to protect personal confidential information on his work computer). The employee brought a claim for unfair dismissal which the employment tribunal upheld. They said there was a fatal flaw in the dismissal process because the consultant hearing his case had gleaned information (a witness statement from a Mr Ritchie) about his case from conducting the investigation into one of the other employees. The employer appealed.

The EAT allowed the appeal. The tribunal hadn’t been clear on whether an instruction had been given for the employee to then ignore. Although fact finding is not a job for the EAT (that is the employment tribunal’s job), the EAT looked at the evidence and said it gave a clear answer on the issue - the instruction in question had been given at a specific company meeting. The EAT also found that the consideration of Mr Ritchie’s evidence in the employee’s case was not a procedural flaw. They referred to the Acas Code which did not give specific guidance on how to deal with procedures relating to multiple employees. The EAT said it would not have been reasonable to expect the employer to retain three separate sets of HR consultants. Nor was there any need to seal off the evidence between the individual investigations. If evidence is relevant, it can be used in multiple cases as required. In relation  to the surveillance point, the EAT agreed the dismissal on this ground was unfair. The secret recording was set in a background of mistrust and a poor relationship between employee and employer. The employer did not properly consider the fact that the camera was set up in an office to which only the employee had access. No one’s image had been captured on it. The employer should have weighed up the right to privacy against the employee’s desire to protect his confidential information. The EAT also said that the employer had failed to call the right witnesses to counter the employee’s evidence, which had led to the tribunal believing him over the company. The case was sent back to a fresh employment tribunal to decide whether the dismissal was unfair based on the management instruction point.

This case has many take away points for employers. Firstly, choose the right witnesses. Where there are disputed facts, individuals with first-hand evidence of those disputes should be called as witnesses in tribunal. Calling the people who conducted the disciplinary processes may not be enough. Secondly, the EAT confirmed that surveillance by employees involves the same balancing act between rights and privacies that employers are required to undertake in relation to surveillance. Handbooks and policies can address this, for example by saying that covert surveillance will be considered gross misconduct. The EAT’s confirmation about the acceptability of using relevant witness evidence across multiple disciplinary processes is also comforting. In fact, the EAT specifically told the tribunal to consider Mr Ritchie’s evidence when considering the issue of failing to follow a management instruction.

TUPE

The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) provide that employees who are employed in the relevant part of the business, immediately before a transfer, will automatically transfer to the transferee. This is called the automatic transfer principle. If an employee would have been employed immediately before the transfer but for being automatically unfair dismissed – where the transfer is the sole or principal reason for the dismissal – liability for the dismissal passes to the transferee. The Employment Appeal Tribunal has recently decided that an employment tribunal made a mistake when it ordered reengagement of an employee by a new service provider when the new service provider wasn’t part of the proceedings.

In Greater Glasgow Health Board v Neilson, the employee was a GP who was employed on a fixed term contract which was terminated when the GP service transferred to a new service provider. He had enough continuity of service to bring an unfair dismissal claim.  He brought a claim against the old service provider – the Health Board – saying he had been automatically unfairly dismissed and should be reengaged by the new service provider, Levenside Practice (LP). The Health Board admitted that the employee’s dismissal was TUPE related so the only issue for the employment tribunal to deal with was remedy. The tribunal ordered that LP reengage the employee, even though LP was not a respondent in the proceedings. The Health Board appealed.

The EAT said the employment tribunal had made errors. If the employee had been assigned to the group of employees which transferred, he had no claim against the Health Board at all. Either his employment would have transferred to LP or he would have a claim against LP for automatic unfair dismissal. Either way, the Health Board would not be liable. The tribunal was wrong to make an order against one respondent to be reengaged by another business (LP) which was not a respondent in the proceedings. The EAT sent the case back to the employment tribunal to decide whether the employee was assigned to the group of employees which transferred: either he was, and liability passed to LP as his new employer, or he wasn’t, and liability would rest with the Health Board. If the employee wanted any remedy against LP, he would need to apply to join them into the proceedings as a respondent.

It will now be for the employee to join LP into proceedings if he wants to seek a remedy against them. This case shows the importance of employees identifying the correct respondent. In TUPE cases where an employee is arguing they should have transferred, that will include the transferee.

Dismissal – Covid-19

Throughout the Covid-19 pandemic, employers have had to grapple with the health and safety risks to employees and customers. Jobs where employees have contact with the public are particularly exposing in terms of the virus. Many employers have brought in rules about face coverings/masks and social distancing to protect customers, clients and staff. Most employees have no issue with these necessary steps, but there are always exceptions. An employment tribunal has recently looked at a claim for unfair dismissal by an employee who refused to wear a face mask at work.

In Kubilius v Kent Foods, the employee was a delivery driver whose job involved travel to and from Tate & Lyle, the main provider of work at the Basildon depot where the employee worked. The employee handbook required employees to be courteous with clients and take all reasonable steps to safeguard their own health and that of others they worked with. The drivers’ handbook required employees to follow customer rules on PPE. Tate’s rules required visitors to their site to wear face masks at all times, even when in their vehicles. The employee attended Tate’s premises but refused to wear a face mask while in his own cab. He was told that it was a Tate rule and necessary in his elevated cab to avoid droplets from his mouth from landing on people below as he spoke to them. He continued to refuse, saying the cab was his own area and he wasn’t legally required to wear a mask. Tate banned him from their site and reported the incident to the employer. The employer dismissed him for breach of both company rules and Tate’s rules.

The employment tribunal said his dismissal was fair. The employer had conducted a reasonable investigation into an event where the facts were not disputed. They had formed a reasonable belief that the employee was guilty of misconduct. The employee continued to insist that he had done nothing wrong which caused concerns about his future conduct. His ban from the Tate site caused practical difficulties for his continued employment. The employer was entitled to take into account the importance of maintaining good relationships with its clients. The decision to dismiss fell within the band of reasonable responses even though another employer might reasonably have issued a warning instead.

Employers will breathe a sigh of relief at this judgment. It isn’t binding on other tribunals, but it feels like a common sense decision. The employer had followed a reasonable process and could show that the decision to dismiss was reasonable in the circumstances. The message to employees is simple: if you are asked to wear a face mask for work, you need to do it unless there are sound medical or other reasons for not doing so. In this case, the employee had no justification, no regrets and clearly no regard either for the health and safety of those he worked with or the reputation of the business which employed him. He paid for that with his job.

Compensation

Section 1 of the Employment Rights Act 1996 requires employers to give employees a statement of their employment terms no later than the beginning of employment. The law changed recently - previously employers had a period of 2 months after employment commenced to comply with this duty, which didn’t apply at all if employment continued for less than a month. Section 38 of the Employment Act 2002 provides for additional compensation of between 2 and 4 weeks’ pay if an employee wins a claim in the employment tribunal and, at the time those proceedings began, the employer had been in breach of section 1 duties.

In Levy v 34 & Co, the employee worked for the employer for a short period. He brought a claim for unlawful deduction from wages of around £150. He told the tribunal he worked for the employer from 29 October to 28 November, which he said was one month. He did not raise the issue of the section 38 claim in his claim form and it wasn’t raised at all until he produced a schedule of loss claiming more than £1000 in extra compensation. The employer did not engage in the tribunal process because he thought the claim was so low value. The employment tribunal awarded the employee £150 compensation for his unlawful deductions claim but didn’t make an order for additional compensation under section 38. The employee appealed.

The employer didn’t respond to the notice of appeal either. They wrote to the EAT later in the process, providing additional evidence which showed that the employee had resigned on 27 November with immediate effect, meaning he had not worked for one month after all. The employee said it was too late to argue about this: the tribunal decided he had been employed for a month and he was therefore entitled to the extra 2-4 weeks’ pay. The EAT disagreed. The employment tribunal had not been obliged to order the extra compensation under section 38. That claim wasn’t in the claim form and had not been brought to the attention of the employer, who had failed to take part in the process because of its apparent low value. Had the employer known there was a claim for up to 4 weeks’ pay, of over £1000, they might have requested an adjournment, to address the point properly, and it would likely have been granted. The EAT said the additional evidence showed the employee’s last day of work was either 25 or 26 November and he resigned on 27 November. He had not been employed for a month. The employment tribunal had not been wrong in law. Quite the opposite, it would have been wrong in law to award the uplift in the first place.

This claim got a bit sticky for two reasons. Firstly, the employee didn’t plead all relevant points properly, which meant the employer didn’t know about a valuable part of what the employee was claiming. However, this was compounded when the employer did not engage in the tribunal process. The EAT noted that this may have been a proportionate choice by the employer based on its low value, but it meant that vital evidence wasn’t brought to the attention of the employment tribunal. This case shows the potential dangers of ignoring tribunal process, and how small claims can sometimes grow into much bigger claims if they are left unchecked.

Post Brexit Changes to Employment Law?

Brexit rather slunk into effect back in January, the headlines overtaken by Covid-19 and the third national lockdown in the UK. To salve some of the negative effects on business, many employers have been wondering whether Brexit would mean a change to some EU-derived employment laws that cause consternation on the ground. Hope therefore surged earlier this year when the Financial Times hinted at government plans to rip up certain employment laws including the 48 hour weekly working time limit, rest breaks and the inclusion of overtime in certain holiday pay calculations.

It wasn’t to be. The newly appointed business secretary has confirmed that there is no plan to reduce workers’ rights. Kwasi Kwarteng MP said it is the government’s intention to protect and enhance workers’ rights rather than row back on them. He confirmed that the department of Business, Energy and Industrial Strategy was carrying out a consultation with business leaders  on EU employment rules including the Working Time Directive. Apparently, the consultation will look at our previous EU membership and the aspects that the UK may want to keep. Mr Kwarteng acknowledged that there had been stories about a bonfire of rights but added that ‘this couldn’t be further from the truth’. Sadly, for anyone hoping that TUPE would be a thing of the past, or that holiday pay calculations might become a bit easier, a seismic post-Brexit shift in employment law isn’t on the cards just yet.

Health and safety – Covid-19

Offices seem to be worse hit by Covid-19 outbreaks than other types of workplace. Data shows that in the second half of 2020 there were more than 500 outbreaks or suspected outbreaks in offices, more than in supermarkets, construction sites, warehouses, restaurants and cafes combined. The BBC reported recently that there were 60 suspected Covid-19 office outbreaks in the first two weeks of the third lockdown, more than any other type of workplace. Issues which may contribute are a lack of ventilation, hot desking and insufficient cleaning.

At the time of writing, the message from the government is still for employees to only go to work if they cannot reasonably work from home. However, a TUC survey found that one in five employees are still travelling to work despite the government edict. 40% of respondents to the survey said that they had been pressured by management into going in.

Despite the high attendance at workplaces, the Health and Safety Executive confirmed this month that it has not issued any prohibition notices to employers since March 2020 in relation to unsafe pandemic practice. The Guardian reported that inspectors’ hands were tied because the virus is only classified as a ‘significant’ threat rather than a ‘serious’ one. However, the HSE has refuted allegations that it isn’t taking the pandemic seriously. They confirmed they would prosecute if appropriate but said that they were using persuasion, advice and reprimand to effect change rather than time consuming legal process.

And thank goodness for that. Employers are trying to do their best in unprecedented and testing times. Many have learned that it simply isn’t possible to do certain tasks or jobs at home. Businesses must take care to ensure that appropriate risk assessments are in place for employees who must attend work, with particular importance placed on good ventilation, social distancing and advanced cleaning measures. Try to keep those who must come into work to a minimum - employees should still work from home if they can.

Flexible working

The Chartered Institute of Professional Development, which represents HR professionals, has called for flexible working to be a day one right for employees and for jobs adverts to stipulate that they can be done flexibly. Currently, the law requires an employee to have 26 weeks’ continuous employment before they can make such a request. Flexible working requests can be rejected for a variety of reasons: the burden of additional costs, detrimental impact on meeting customer demand, inability to organise work among existing staff or recruit more, detrimental impacts on performance or quality of work, or lack of work during periods where the employee wants to work.

Their recent survey included more than 2000 workers  and found that almost half don’t have any kind of flexible arrangement such as flexitime, part time working, compressed hours or job shares. The survey revealed that although the pandemic has resulted in a huge increase in homeworking, two out of every 5 employees continue to go to work, with most saying the nature of their jobs prevented them working at home. The CEO of the CIPD, Peter Cheese, said that if employees can’t work from home, giving them more control over when and how they do their work would help. He encourages employers to look at other modes of flexible working to give more choice to all employees and allow them greater control over their working lives.

At a time where we have lost control over so many of our choices and freedoms, it is understandable that employees might want more control over their work. But flexible work can be good for employers too. Studies have shown that remote working can actually increase employee productivity. Flexible arrangements can promote a healthy work life balance and reduce stress and burnout. Flexible working can increase work satisfaction and enable businesses to attract the best talent. Who wouldn’t want this from day one?

LexLeyton Spotlight: Kathleen Bada

What does a typical day as an employment law solicitor and business partner to a wide range of employer clients at LexLeyton look like for you?

“I’ve been working remotely since last March. We start the day with a team meeting via video. It’s a good way to keep in touch with my colleagues and talk about any recent legal updates. The pace of changes to employment law has been frenetic since the introduction of furlough so there’s always a lot to discuss.

Following our team meeting, I check my emails and calendar to plan my day. For the rest of the day I’ll be busy providing advice to clients by phone or email. I’ll usually also have some video meetings arranged. The focus now is on preparing for a return to the workplace, so questions about Covid-19 vaccines are common.”

What is your favourite part about working at LexLeyton?

“There’s a true collegiate spirit that makes it an enjoyable team to be a part of. During lockdown my colleagues have come up with really creative activities that have allowed us to become an even stronger team as result.”

What are the biggest challenges you face in your job?

“It’s important to keep up to date with the latest developments in employment law, but last year the pace of changes to the law was greater than anyone could have anticipated. The Government got in the habit of issuing crucial legal bulletins late on Friday evening, making it tricky to advise clients promptly.”

What is your proudest moment at LexLeyton?

“During the first lockdown, the team had to move to working remotely while at the same time advising clients who were facing closure of their businesses and possible job cuts. It was an incredibly busy and challenging time, yet we managed to deliver a seamless service to our clients without disruption. ”

What do you like to do in your free time?

“I try to get outdoors to exercise every day.  My favourite activity is going for a run around my local park. It has great views of north-west London and the remains of a house where Mark Twain once spent a summer.”

What is your guilty pleasure?

“Chocolate – I have a few squares for dessert every night.”

What is your biggest fear?

“I’m not a fan of flying insects.”

What is something that not many people know about you?

“Before becoming a lawyer, I worked in publishing. One highlight was working on a night-time photoshoot at the American Museum of Natural History in New York where Night at the Museum was filmed. I kept expecting the massive dinosaur skeletons to come to life like in the movie!”

A young woman in the legal profession

Today, like every 8th March, we have the opportunity to celebrate the social, economic, cultural and political achievements of women everywhere. Looking at the legal industry, most will joyfully reminisce on how far women have come since the Sex Disqualification (Removal) Act in 1919 which allowed women to become lawyers.

For someone like me, born in the 1990’s in a European country where its first Women Prime Minister had just been elected and where a wind of change was blowing, becoming a solicitor always seemed in the realm of possibility. Indeed, the internet was around and I could see there were many female solicitors!

So what is the issue? If women in the UK can study and work, why are we still making such a big deal of International Women’s day?

Whilst it is true that, since 1990, women have represented over 60% of new entrants into the profession, and there are now more women than men practicing as solicitors, according to an extensive data project conducted by the Financial Times, women are still sorely under-represented at the highest echelons of the industry. Of course, these stats do not only apply to lawyers, indeed, even though girls generally perform better at school, a study conducted by Heidrick & Struggles states that only about 5% of working women are in CEO and upper management positions.

In the UK, even though there is a statutory right to request flexible working since 2014, the government’s Equalities Officehas long said that it was not enough and widening access to, and successful implementation of, flexible working arrangements would be key to retaining women and improving gender equality “across society as a whole”. Indeed, it is recognised that it is the fact that women are more likely to be carers than men in addition to workplaces’ “rigid and inflexible structures” which are the main reasons for women not reaching senior positions and pay gaps.

Whilst Covid-19 has brought a lot of loss, sorrow and has also been responsible for a disproportionate amount of mothers and pregnant workers being furloughed and made redundant, it might have changed the workplace for ever and in this context there might be light at the end of the tunnel for women.

Practically overnight in March, businesses have shown great level of flexibility and have proven that they can be agile and continue to deliver, even during major disruption. Being obliged to work from home has shown how efficient one might be even if they are not physically in the office and this realisation could unlock professional opportunities for women who juggle work and caring responsibilities by allowing them to work part time or at “non-typical” hours of the day.

Of course, there are other gendered workplace issues that still require attention but this year, more than ever before, I am filled with great hope; hope for women and men to be equal in the workplace.  I would like to wish you all a very happy International Women’s day.

Budget Update – Key Points for Employers

In the Budget announced on 3rd March 2021, Chancellor Rishi Sunak has confirmed that the Coronavirus Job Retention Scheme (“furlough scheme”), which was due to end on 30th April 2021, will now be extended until the end of September 2021.

What does the furlough scheme cover and how much will employers have to contribute?

  • Employees will continue to be entitled to receive 80% of their wages (subject to a cap of £2,500 per month) and may be continuously furloughed or placed on flexible furlough (working for part of their normal hours).
  • Until July there will be continue to be no employer contribution to wages.  Employers will still be required to meet employer National Insurance contributions and minimum auto-enrolment pension contributions.
  • In July, employers will have to contribute 10% of furlough wages (plus NI and pension), with the Government’s grant covering the remainder of furlough wages.
  • In August and September, employers will have to contribute 20% of furlough wages (plus NI and pension), with the Government’s grant the remainder of furlough wages.

Retention incentives

In Autumn 2020, the Government announced that it would scrap the Job Retention Scheme Bonus, which was due to be paid in January 2021. The Bonus was to comprise £1,000 for each employee who had been on furlough and who was retained by their employer. Instead, the Government indicated that would put in place an alternative retention incentive. However, the Budget did not contain any details of further retention incentives, and it looks unlikely that any new scheme will be forthcoming. 

Other employment law announcements

  • The National Living Wage will rise this April from £8.72 to £8.91 (for those in the 23 and over age bracket).
  • Income tax and NI rates will not be changed. Personal allowance thresholds will rise in April, but will then be frozen until 2026.
  • A new HMRC taskforce will be set up to combat furlough scheme fraud.
  • In August 2020, the Chancellor introduced financial incentives for employers taking on apprentices, offering a grant of £2,000 per apprentice aged 16 to 24, and £1,500 per apprentice aged 25 and over. This scheme was due to end in March, but has now been extended to the end of September. Further, from April the level of grant will be increased to £3,000 per apprentice, regardless of age.

Our Thoughts on the Budget

This Budget package had to transform a blurry picture of the public finances into a clear, sensible and practical outlook for financial support as the recovery from Covid-19 begins in earnest. While the Chancellor may not have provided complete clarity for the next year, business leaders will welcome the package announced yesterday. It goes some way to shed light on the outlook for businesses that are sustainable in the long run.

The extension of the furlough scheme is one of the standout elements of the Budget and should help to bridge the gap between the end of the scheme and return for a significant segment of the population. It was inevitable there would be some form of tapering off as the furlough scheme winds down. Employers remain responsible for National Insurance and pension contributions for hours not worked, resulting in an often significant outlay for businesses across many industries where the Covid measures has not permitted any real recovery yet.  Businesses will be hoping to open as soon as possible to start generating revenue that will counteract their increasing overheads and tax commitments as the scheme draws closer to its end.

Employers will need to prepare for the end of the furlough scheme in good time, particularly bearing in mind the statutory time periods for collective consultation in the event of large-scale redundancies. In the details of the ‘winding down’ of the scheme, we hoped to see a continuation and extension of the scheme’s flexibility.  In particular, re-introduction of the scope of furlough to include individuals working their notice would be a significant benefit to employers, with so many workers moving jobs. Flexibility is essential to help businesses plan their own recovery.  We are dissecting the guidance and will provide further updates to all of our clients, and our FAQs, shortly.

The stand out elements of this Budget are the extension of furlough, combined with business rates relief being significantly extended, maintaining lower VAT levels and financial support in recruiting young people, all of which are likely to extend beyond the current ‘best case scenario’ timeframe for businesses re-opening.  With this budget, businesses can have greater confidence in making positive, proactive decisions for the year ahead.

Without doubt, ongoing communication, synergy of thought and clarity between business and Government will remain integral to us successfully navigating the UK economy back on track.  With unemployment figures desperately high, the knock on effects of poverty, mental wellbeing, social welfare and attracting capital investment much be continually addressed.  The impact of the pandemic has cost more lives and livelihoods than can be measured in fiscal terms. The recovery required to address the endemic inequality arising as well, disproportionately affected women, young people, Black, Asian and other minority groups, to name a few. In my view, the Chancellor’s announcement today has gone a long way to creating an environment where business leaders can begin to address that unintended inequity.

Zero Discrimination Day – The benefits of an inclusive culture within the workplace

Zero Discrimination Day is the day where organisations such as the United Nations actively promote and celebrate everyone’s right to live a full life with dignity regardless of age, gender, sexuality, nationality, ethnicity, skin colour, height, weight, profession, education, and belief or other similar characteristics.  Whilst the day is intended to raise awareness of these issues across society in general, we will consider this from a workplace perspective.

The importance of Equal Opportunities within the workplace is now widely accepted by most employers who then take active steps to ensure their equalities policies are followed.  This is a positive step; however, could these employers take one step further and actively promote the key messages of inclusion at work?  Inclusion goes beyond the base principles of equality and focusses on valuing everyone in an organisation as an individual.  In essence, inclusion is the corner stone of good HR practice.   An inclusive workplace culture allows all people to not only deliver but also thrive at work, regardless of their background, identity or circumstance.

To consider if you your working environment is truly inclusive, ask yourself:

  • Does everyone feels able to participate and achieve their potential?
  • Do employees, customers and the wider public view your organisation as inclusive? What measures do you use to understand this?
  • Do you go beyond the minimum standard set by the Equality Act?
  • Do you have more than a dusty Equal Opportunities policy?  Is there an effective diversity and inclusion strategy?
  • Do you embrace practices that add value to the company and which benefit employee wellbeing and engagement of all?
  • Are line managers and their teams inclusive in all of their everyday activities?

Whilst many may consider things as being generally ok within the workplace, statics could indicate otherwise.  Findings from the Chartered Institute of Personnel and Development (‘CIPD’) UK Working Lives survey highlight that 22% of employees feel that ‘other team members would judge others for being different’.   Whilst the importance of having an Equal Opportunities policy and ensuring employees are regularly trained and updated on it is necessary; this alone is not enough to ensure a diverse workplace.  Based on the aforementioned data, an Inclusion strategy may be a better starting point for organisations wanting to increase diversity and drive results.

The CIPD state: “Research links inclusion with employee satisfaction, creativity and reduced absenteeism, meaning that employees and employers stand to gain by being more inclusive. To do this, organisations need to take targeted action as part of their Diversity & Inclusion strategies, recognising that inclusion is relevant to everyone in the business. Indeed, research suggests that there are five areas where action needs to be taken being: employee behaviour; line manager capability; senior leadership; policies and wider people management practices and organisational culture, climate and values.”

To conclude, actively embracing inclusion could help drive the business forward for the future. Isn’t that something we should all consider on Zero Discrimination Day?

To talk about how to develop a more inclusive culture in your workplace, or if you need any HR or employment support with your policies, processes or people strategy, contact us for a free consultation and a chat about how we can help your business be on its best game at legal@lexleyton.co.uk

Uber drivers are workers, Supreme Court decides

The Supreme Court has dismissed Uber’s appeal against the ruling that its drivers are workers. This long-awaited decision will have significant implications for other gig economy businesses.

The Supreme Court’s decision

The key question for the Supreme Court to decide was whether an Employment Tribunal was entitled to find that Uber drivers were workers for purpose of employment legislation. If so, then drivers would become entitled to a raft of statutory rights, including the National Minimum Wage (NMW) and paid annual holiday.

The test of employment status turns on a number of factors.  Chief amongst these are whether the individual must perform services personally, the level of control exercised over the individual, and whether the individual is obliged to accept any work offered.

At court, Uber argued that its drivers are independent contractors who form separate contracts with every passenger they drive. Uber claimed its role was limited to the provision of technology services via its app, through which the organisation acted as a payment collection and booking agent. The Supreme Court disagreed with this characterisation of Uber’s relationship with its drivers however.

The Supreme Court made five key findings in determining that Uber drivers are workers:

  1. Uber sets the fare, drivers have no say in it and they are not permitted to charge more than the fare calculated by the Uber app.
  2. The contractual terms on which drivers perform services are imposed by Uber.
  3. Once logged on, a driver has little choice over whether to accept requests. Their activities are monitored by Uber, and they are penalised if too many trips are declined or cancelled.
  4. Uber has significant control over how drivers deliver services.
  5. Uber restricts communications between passenger and driver to the minimum necessary for each trip. A driver can’t extend their relationship with a passenger beyond the individual ride.

The Supreme Court found that this system effectively places drivers in a position of subordination to Uber. Taken together, the findings mean that Uber controls its relationship with drivers very tightly.  Drivers can’t improve their economic position through professional or entrepreneurial skill, only by working longer hours for Uber. When considered in the context of the employment status test, the Supreme Court concluded that the Employment Tribunal was right to find that Uber drivers are workers. The drivers therefore now qualify for the rights afforded to workers by employment legislation.

Working time

A secondary question for the Supreme Court to consider was: during what periods of time were drivers working?  This was relevant for determining the periods during which drivers would be entitled to payment of the NMW.

The Supreme Court decided that a driver is working whenever he is logged on and ready and willing to accept trips. This is a much longer worker day than Uber might have expected as it was open to the court to decide whether a driver is only working when there’s a passenger in their car.

What does this mean for other gig economy businesses?

The outcome of the Supreme Court’s case has far-reaching implications for Uber and its peers. Uber is seen as a business which embodies the gig economy so what happens to it has significant implications for other gig economy businesses worldwide. Although the case turned on some fine points that are unique to Uber’s operations, there will still be areas of concern for other gig economy businesses.

It’s apparent that Uber believed they could disguise the real nature of their relationship with the drivers by contracting them to their Dutch business (Uber B.V.) instead of their UK business (Uber London), and by saying they acted as the drivers’ agent. Courts at all levels saw through this ruse to the reality of the relationship, which was that the drivers were workers of Uber London.

Uber is now facing expensive back pay claims, particularly relating to NMW and holiday pay. This will surely affect the viability of Uber’s business model going forwards. Other gig economy businesses would do well to review their arrangements with those who provide services for them immediately to ensure any potential legal risks are adequately covered. Well-drafted contracts will be a vital tool in minimising such risk.

LexLeyton can assist with the issues raised in this article by reviewing employment contracts and related operational arrangements for areas of litigation risk. Please contact us at legal@lexleyton.co.uk for a free initial confidential discussion

Is another suspension of gender pay gap reporting a good thing?

Since 2017 any employers with a headcount of 250 employees or more must report and publish information about their gender pay gap. Due to the impact of the Covid-19 pandemic, the Government Equalities Office (GEO) and the Equality and Human Rights Commission suspended enforcement of the gender pay gap reporting deadlines for 2019-20 in March last year.

Intended to be a one-off to help businesses deal with the fall out of the pandemic, On 14 December 2020, the GEO published new guidance giving step by step instructions on how to make each of the required gender pay gap calculations, so it looked like it was all systems go for the 20-21 reports

However, in the last few days, the Government has cast doubt on whether it will be requiring gender pay gap reporting to go ahead this year.

In a BBC news report on Tuesday 9 February, Gillian Keegan MP, Minister for Apprenticeships and Skills, confirmed that while it would be "encouraging" employers to continue filing their gender pay gap reports, enforcement for not submitting forms is now unlikely. On the same day, The Guardian quoted the Government as saying that gender pay gap reporting is "under review" again.

So it looks like another 11th-hour reprieve for businesses having to submit their gender pay reports, but should businesses really be breathing a sigh of relief?

It's been widely reported that the pandemic is having a disproportionate effect on women; if you're one for awkwardly shoe-horning words together, then you might be joining in with calling it a 'shecession'.  Another year of no mandatory gender pay gap reporting is another year of many companies not acknowledging the reality of their gender pay gap and not taking steps to address it. It's another year of companies not being held accountable, just when women might need it most.

The Women and Equalities Committee recently released a report on the economic impact coronavirus has had on women, finding that the Government's policies in response to the pandemic overlooked the inequalities women faced in the labour market and when it came to caring responsibilities. It found that for many women, existing equality problems had only got worse.

The picture is the same further afield. A survey carried out in North America found that one in four women were thinking about reducing or leaving paid work due to the pandemic, citing company inflexibility, caring responsibilities and stress. The survey highlighted the gender gap for parents; while 8% of surveyed mothers had thought about going from full- to part-time work, only 2% of fathers had. Globally, women's job losses due to Covid-19 are 1.8 times greater than men's.

Gender disparity is a complex issue, and not one that will be resolved through gender pay gap reporting alone. However, preparing a gender pay gap report, with a narrative and an action plan to tackle the gap, helps businesses identify disparities within their organisation and target their resources more efficiently. It shows your workforce that you are committed to supporting them and tackling inequality, which boosts morale and helps retain your employees. It could also help to recruit staff, with a recent survey showing that employees of all genders seek out more socially-conscious employment.

We are starting to encourage businesses to look to the future and how life might look once we get some semblance of normality back. Undoubtedly, gender equality should be on the agenda of any sustainable business.

Don't hesitate to contact us at legal@lexleyton.co.uk for a free consultation to understand your gender pay gap reporting obligations better or discuss how we can help develop your strategies to an equal and diverse culture fit for the future.

Employment law update – Feb 2020

Business people in the office

Interim relief is a powerful employee remedy. Section 128 of the Employment Rights Act 1996 sets out the limited circumstances in which it can be sought: for dismissals relating to trade union or health and safety representative activities, and whistleblowing cases. If an employee shows that there is a ‘pretty good chance’ that they will win their claim, the employment tribunal can make an order for their reinstatement (to their old job), reengagement (to an equivalent role) or simply for their contract to continue. Essentially, interim relief reverses the dismissal pending the final hearing. In what may turn out to be a landmark case, the Employment Appeal Tribunal has looked at whether this remedy should also be available in discrimination cases.

In Steer v Stormsure, the employee had been employed for only a few months when she raised allegations of sexual harassment against a colleague. She lodged a grievance. She also asked to work from home to safeguard herself from harassment. The employer reluctantly agreed but asked her to install monitoring software onto her computer, which the employee found oppressive. She alleged that her working hours were then reduced to 60 per cent. She claimed that the reduction in hours was an express or constructive dismissal that amounted to sex discrimination or victimisation. She brought a claim for discrimination under the Equality Act 2010 and requested interim relief in relation to her discriminatory dismissal.

The employment tribunal said it did not have the jurisdiction to grant interim relief in discrimination cases. The employee appealed to the EAT. The EAT said the difference in protection for discrimination cases breached the European Convention on Human Rights (ECHR) - article 14 on the prohibition of discrimination and article 6 on the right to a fair trial. The difference in remedy between whistleblowing and discrimination claims was not justifiable. However, they did not have the power to make a ‘declaration of incompatibility’ with section 3 of the Human Rights Act 1998 (which says that UK legislation must be read in a way which is compatible with the ECHR). Nor were they prepared to interpret the Equality Act 2010 in such a way as to extend interim relief to discrimination cases. As a result, they dismissed the appeal but granted permission for the employee to appeal to the Court of Appeal which does have the power to rule on the incompatibility point.

This is an important decision for employers. If the employee wins her appeal, a brand-new remedy will be available to employees in discrimination cases. Brexit will not affect the outcome because the UK will continue to sign up to the ECHR. Currently, interim relief is rarely sought and even more rarely won due to its very limited application. If the remedy extends to discrimination claims, there could be a deluge, especially at a time where there are significant delays in the employment tribunal process due to Covid-19. Employers should not panic though. For interim relief to be granted, an employee needs to have a ‘pretty good chance’ of winning their claim. This is no small hurdle, and many will fail to get over it.

Victimisation

An employee is victimised when an employer treats them badly for raising allegations of discrimination. The discrimination complaints are called ‘protected acts’, because the employee is protected if they raise them. In Chalmers v Airpoint, the EAT has looked at whether an employee saying something ‘may be’ discrimination is enough to qualify as a protected act.

The employee emailed her employer saying that their actions – in arranging a Christmas event for a date when she could not attend - ‘may amount to discrimination’. In the same email, she also complained that her manager was unapproachable, aggressive and unhelpful. The tribunal found that the party arrangements were not an act of discrimination. In addition, the employee’s email was not a protected act because it didn’t contain an allegation that someone had contravened the Equality Act 2010. They considered the employee to be articulate and well-educated. They also noted the specific lack of reference to ‘sex discrimination’. As a business support manager, the employee carried out some HR functions for the company so had insight into discrimination issues. The tribunal therefore felt it was surprising that she was equivocal about discrimination complaints when she had been so clear about other issues – if she had wanted to raise discrimination complaints, she would have done.

The EAT said the tribunal had been entitled to come to this conclusion. They noted the tribunal’s reasoning and confirmed they had been entitled to conclude that this email was not a discrimination complaint which qualified as a protected act. The EAT said that the tribunal had considered whether the lack of the word ‘sex’ (in relation to discrimination) and use of the word ‘may’ were due to the employee’s ‘lack of facility’ with words or ignorance about the concept of sex discrimination. They found that if she had wanted to raise a sex discrimination complaint, she would have done. The EAT said those findings were not perverse on the facts.

This case does not mean that equivocal language will never be enough to turn a complaint into a protected act. The facts in this case were very specific - a well-educated employee, familiar with HR processes, and someone who had complained in very clear terms about other matters. On that basis, the tribunal concluded that she would have complained in clear terms had she intended to. Other employees may be understandably less informed or be less direct and have a lower hurdle to clear when raising discrimination complaints. Care must always be taken in relation to any correspondence which cites discrimination. It’s probably safer to assume it does qualify as a protected act and proceed cautiously.

Furlough – updated guidance

The government has updated its advice in relation to the Coronavirus Job Retention Scheme to confirm that employees can be furloughed if they are unable to work some or all of their hours due to caring responsibilities resulting from Covid-19. The guidance says that ‘caring responsibilities’ includes caring for children who are at home because schools/childcare facilities have shut or caring for a vulnerable person in the household.

The change in advice follows requests from the TUC and opposition MPs for the government to provide more support for working parents during the third lockdown. The government rejected calls for parents to be given the right to demand furlough, though the new guidance creates more flexibility for both parents and employers. It is almost impossible to do a decent day’s work alongside home-schooling children. The option to furlough might be attractive to some employers who are able to cover the work in another way. This will not always be possible though and sensitive discussions will be necessary with employees who can’t be furloughed to see what other support or assistance may help them to juggle their responsibilities. Redistributing some work, changing working hours or being more flexible on deadlines can all help parents who are trying to juggle during the normal working day. Stressed, overstretched employees are not efficient or productive workers. In these strange times, what works best for employees will often be the best thing for the business too.

See the new guidance at https://www.gov.uk/guidance/check-which-employee-you-can-put-on-furlough-to-use-the-coronavirus-job-retention-scheme

Indirect discrimination

Indirect discrimination arises when an employer applies a policy to everyone which puts people who share a protected characteristic (such as race or sex) at a ‘particular disadvantage’. The policy must also put the employee in question at that disadvantage. It involves a comparative exercise: showing that one group is disadvantaged when compared to another. These groups are often referred to as the ‘pools for comparison’. The pools need to include all the workers affected by the policy but exclude those who are not. In Cummings v British Airways, the EAT examined who should go into these pools in an indirect sex discrimination claim involving childcare.  

British Airways had a policy that crew members who took parental leave would have one rest day removed for every three days’ parental leave taken in a monthly roster. The policy was applied to the employee who brought an employment tribunal claim. The employment tribunal found that the policy did not put women at a particular disadvantage when compared to men.  The pools for comparison were men with childcare responsibilities and women with childcare responsibilities within the workforce. Since 100 per cent of both groups suffered the same disadvantage when they took parental leave, the tribunal said there was no particular disadvantage to women.

The EAT said there was a problem with this reasoning. Not all employees with childcare responsibilities would apply for and take parental leave. This means that not all people with childcare responsibilities in either group – male or female – would be disadvantaged. It had been acknowledged in the Supreme Court case of Essop that women still bear the bulk of childcare responsibilities in society. Of 2500 cabin crew, 69 per cent were women and 31 per cent were men. Of those who took parental leave, 417 were women compared to 92 men. A far greater proportion of female employees (24.2 per cent) took parental leave compared to male employees (11.9 per cent). But what was missing from the evidence was the comparison between the specific number of male and female staff with children of the relevant age, who therefore had ‘childcare responsibilities’. This was an error of law and the matter was sent back to a fresh employment tribunal to consider the following questions:

  1. Did the policy put staff with childcare responsibilities at a disadvantage;
  2. Did it put women in that group at a particular disadvantage when compared with men; and
  3. Was it justified?

This case is a helpful explanation of how the pools for comparison are made up in an indirect discrimination claim. It is a complex analytical exercise with this case showing how eminent lawyers and even judges can get it wrong. It’s worth employers getting early legal advice in relation to allegations of indirect discrimination so that any problematic policies can be weeded out and changed before cases get to court.

Pregnancy discrimination

Section 18 of the Equality Act 2010 deals with pregnancy and maternity discrimination. An employer discriminates against an employee if they treat her less favourably while she is pregnant or on maternity leave, either because of the pregnancy (or any related illness) or because she has taken maternity leave. This kind of discrimination cannot be justified. The period of protection starts when the employee becomes pregnant and finishes at the end of maternity leave. The Employment Appeal Tribunal has recently looked at whether changing a pregnant employee’s job to remove workplace risks can be considered less favourable treatment.

In Devon and Cornwall Police v Town, the employee was a frontline police officer who worked in the Response Team. When she became pregnant, a risk assessment confirmed that she could safely remain in the Response Team with some adjustments. Instead, the employer applied their generic policy that employees on restricted duties would be transferred to the Crime Management Hub, a back office role. They essentially ignored the risk assessment. The employee did not want to transfer and the transfer affected her mental health and made her ill. She brought claims for pregnancy discrimination and indirect discrimination.

The employment tribunal said the employee had been discriminated against on grounds of pregnancy. The employer had also indirectly discriminated against her by applying the policy on restricted duties because women were more likely to be forcibly transferred due to pregnancy or associated ill health. The employer appealed, saying that a policy designed to protect someone from risk could not be ‘unfavourable’ treatment. They also argued that the policy only disadvantaged pregnant women, not women in general. The EAT disagreed. The ‘unfavourable’ treatment was being moved to a job the employee didn’t want and which made her ill, not being ‘removed from danger’. The tribunal had found on the facts that this was unfavourable treatment and that it was because the employee was pregnant. These findings of facts were not perverse so there was no basis for appeal against pregnancy discrimination. For the purposes of an indirect discrimination, the EAT said that it was enough that the policy was more likely to affect women - as a group they were more likely to be subject to the policy due to pregnancy and only women can get pregnant. It wasn’t necessary that all women actually suffered from the disadvantage.

This case shows how important it is for employers to engage with pregnant women about steps that are taken to protect them from work-related risks. In this case, the risk assessment clearly showed that the employee could safely remain in her substantive role. The tribunal noted that any ambitious frontline police officer would consider the move to a non-operational role as a retrograde step. In circumstances where the employee actively wanted to stay in her job, steps to ignore both a risk assessment and her own desires were foolhardy. Protecting women from clear dangers is vital, but this case demonstrates the risks associated with going too far.

Constructive dismissal

A constructive dismissal arises when an employer fundamentally breaches the employee’s contract, entitling them to resign and say they were effectively dismissed. The breach must be fundamental, which means it is really serious and goes to the root of the contract. If there is a fundamental breach of contract, the employee has a choice: to accept the breach and act on it by resigning or to waive the breach and affirm the contract by continuing to work.

In Gordon v J&D Pierce (Contracts) Limited, the employee’s relationship with his manager had deteriorated. He resigned and claimed constructive dismissal, saying that the trust and confidence had been destroyed. The employment tribunal dismissed his claim, saying that both sides had contributed to the relationship breakdown. Trust and confidence had not been breached and the employee had not been entitled to resign and claim he was pushed. The tribunal also said that in raising a grievance, the employee had affirmed the contract. The employee appealed.

The EAT dismissed the employee’s appeal because they agreed that there had been no breach of contract. On that basis, they didn’t strictly need to deal with the affirmation point, but chose to do so. The EAT said that engaging in a grievance process after a breach of contract did not necessarily mean a contract had been affirmed. The same principle would apply to other internal processes such as a disciplinary appeal. Exercising a contractual right such as appealing against a disciplinary sanction or raising a grievance should not be regarded as affirmation of the contract as a whole. These processes are severable from the remainder of the contract and can survive it, even when the rest of the contract is considered to have been terminated by a breach. If the employee wins the appeal or grievance, it is then open to them to affirm the rest of the contract too and continue in employment.

This decision makes sense. It would be odd if the very processes designed to resolve differences – disciplinary appeals process and grievances – could not be used by an employee in circumstances where their contract has been breached. It would completely undermine the industrial purposes of these processes. The employee lost his appeal anyway in this case, but the clarity provided by the EAT will be welcomed by all parties.

Employment tribunals – compensation

If an employment tribunal finds that an employee has been unfairly dismissed, they will then need to decide whether, and how much, compensation should be paid. The tribunal can order the amount it thinks is ‘just and equitable’ bearing in mind the employee’s losses. Compensation can be reduced by an amount a tribunal thinks is just and equitable if the employee caused or contributed to their dismissal. In Hakim v The Scottish trade Unions Congress, the EAT has looked at how employment tribunals should approach the issue of calculating losses.

The employment tribunal found that the employee had been unfairly dismissed. The tribunal reduced his compensation for several reasons. Firstly, they said that 35 job applications in 4 years was not a good enough search for alternative employment. They felt his job hunt had been too narrow, confined as it was to the equalities/trade union/third sector jobs. They also noted he hadn’t attempted to retrain or look for volunteering work. They decided it was just and equitable to reduce his compensation by 30%.

The EAT didn’t like that. In order for percentage reductions to be just and equitable, a tribunal must be able to justify the use of such a ‘crude’ approach. This approach might be reasonable if there is a lack of evidence about alternative employment prospects and/or what wages that alternative employment would attract. But this case was different. The employee had secured alternative employment at a specific wage. The tribunal said he would have secured employment earlier had he tried harder. Rather than apply a percentage reduction, the tribunal should have decided when the employee should have secured employment and deduct from his compensation the earnings he would have received had he mitigated his loss properly. Percentage deductions are fine as long as a tribunal can justify why they are made, which the tribunal here did not. The judge sent the case back to the tribunal to do the sums again properly.

This case doesn’t rule out percentage deductions on compensation which are widely used in other ways in employment law (i.e. for Polkey deductions) and other legal claims. But what a tribunal must do is justify that deduction. This is useful for employers to know both in relation to tribunal claims but will also be relevant at an earlier stage in relation to settlement. Gathering evidence about the employee’s mitigation, or lack of it, is always important.

What will the vaccination programme mean for your business?

With the coronavirus vaccination programme well underway in the UK, many employers are considering what vaccination might mean for their business. Some companies are announcing that they will dismiss or refuse to recruit employees who aren’t vaccinated. With 23 per cent of employers telling an HRLocker survey that they plan to make vaccination compulsory, everyone wants to know whether a ‘no jab, no job’ policy is legal.

It’s easy to see why employers want their workforces vaccinated. A fully vaccinated workforce will (hopefully) mean a substantial reduction in both the incidence of the virus in the workplace and the risk that the virus poses to both staff and customers/clients. But a blanket rule might get you into trouble. If a vaccine contains animal-derived products, then a vegan or a Muslim employee might refuse the jab and bring an indirect discrimination claim if they are dismissed as a result. The policy is applied to everyone but can put people with ethical or religious views at a disadvantage. Although such a policy could theoretically be justified – as a proportionate means of achieving a legitimate aim – it would be tricky here. Employers might need to make an exception for such employees.

Aside from discrimination, a ‘no jab, no job’ policy will be difficult for most employers to justify. There are many reasons for this. The vaccine is not compulsory, so an employment tribunal is unlikely to welcome an employer trying to make it obligatory via the back door. The risk of adverse effects from the jab, however small, cannot be completely removed or ruled out – it might be tricky to justify a dismissal for refusing a vaccine which might pose a health threat. Many people are nervous about a new jab which has been developed and approved so quickly, keen to wait and see whether anyone grows fur or a fifth limb in the next few months. Forcing someone to take a vaccine might also infringe on their human rights. Whilst for most employers, this policy won’t be justifiable, there are some workplaces where vaccination is more mission critical. The pandemic has caused devastation in our care homes and there is a shortage of NHS staff due to infection and isolation requirements. Vaccinations will protect vulnerable patients and staff from the virus, potentially reducing or removing its devastating effects.  In these workplaces, the chances of defending such a dismissal are much greater. As always, a fair procedure must be followed, including exploring redeployment from the frontline for those who refuse the jab.

For most employers though, there is plenty of time to mull things over before making any dismissal decisions. Most people of working age are many months away from being offered a vaccine. For those who are currently vaccine hesitant, let winter give way to spring, allowing more time for people to see that vaccination does not damage health. When jab time comes, many employee concerns may have gone away, hopefully taking Covid with them.

ACAS early conciliation and extending time limits

ACAS early conciliation (EC) is designed to avoid employment tribunal proceedings. The EC process operates to ‘stop the clock’ on the limitation period in employment tribunal claims to allow the parties to negotiate a settlement. Once the process is complete, ACAS send an EC certificate confirming the dates of conciliation, which starts the clock ticking again. The rules seem simple but in reality the calculations can be complex. What happens if an employee submits a claim late because they get their maths wrong?

In Adedeji v University Hospitals Birmingham NHS Foundation Trust, the employee was a consultant surgeon. After a long capability and conduct procedure, he resigned and claimed constructive dismissal and race discrimination. He lodged his tribunal claims late, despite being warned twice by his legal advisor to lodge any claim within the normal 3-month limitation period. The employee mistakenly thought that he would get an extension of time by contacting ACAS afresh despite having received an EC certificate. The employment tribunal refused to grant him any extensions of time.  The employee appealed. The EAT dismissed his appeal so the employee appealed to the Court of Appeal.

The Court of Appeal agreed with the EAT’s decision. The EC certificate was valid which meant the employee’s claims were out of time. The employment tribunal’s job then was to decide whether there was a reasonable excuse for that. The employee was a highly educated and intelligent person with access to legal advice. The tribunal had considered those facts to be highly relevant when making its decision not to extend time, and that was not unreasonable.

This case is good news for employers, but it doesn’t mean that all claims submitted late will be rejected. As in this case, the facts will be highly relevant. Here, the employment tribunal felt that it was unreasonable for a consultant surgeon with access to lawyers to claim ignorance of the law and its time limits. For a less educated employee, or one without access to legal advice, the situation might be different. In those circumstances, an employment tribunal might be more forgiving for someone’s misunderstanding of a fairly complicated legal procedure.

Trade union activities

Section 146 of the Trade Union and Labour Relations Act 1992 says that workers are protected against poor treatment by their employer because of their trade union activities. In UCL v Brown, the EAT had to decide whether the sole or main purpose of an employer’s verbal warning was the employee’s trade union activities.

Mr Brown is an IT Systems Administrator at UCL and a local trade union representative for the University and College Union (UCU). The IT department had a department-wide mailing list of around 500 staff. It had been used for over 14 years by staff for work related issues, random matters such as lost keys and by trade union reps for union related communication. The heavy email traffic irritated some people. Management decided to limit department wide emails: messages would go into a ‘moderation’ queue for management to decide whether the communication was appropriate. A separate group was created, with no moderation, but which required staff to actively ‘opt in’ to receive messages. Only 120 out of 500 staff opted in. This significantly changed the reach which the trade union had in relation to staff. Mr Brown set up a new mailing list and added all staff to it, making it clear to management that he was acting in his trade union capacity. He was asked to delete it and was given a verbal warning when he refused. He brought an employment tribunal claim for trade union detriment.

The employment tribunal decided that setting up the new mailing list and refusing to take it down were trade union activities. It followed then that a verbal warning for doing those activities was a detriment.  The EAT agreed. The manager’s main motive in dismissing Mr Brown was for refusing to delete the mailing list. If this was a trade union activity then this alone was enough for Mr Brown to win, a verbal warning clearly comprising ‘detrimental’ treatment for Mr Brown.

This case acts as a sage warning to employers who take action against trade union representatives, even in circumstances where they may be disobeying management instructions. In this case, the tribunal noted that modern email communication had overtaken and replaced older methods such as the notice boards and pamphlets of yesteryear. The employee had made it plain he was acting in his trade union capacity. Engagement with Mr Brown at that stage would have been better than discipline, together with reassurance that the moderation system wouldn’t hold up the distribution of any trade union related material.

Employment Considerations in the Hospitality Sector

To say that 2020 was an annus horribilis for the hospitality sector is an understatement.  The impact of Covid-19 saw restaurants, bars and hotels massively restricted and in many cases mothballed altogether.  Those that remained open had to show incredible agility to change their offering; those who did or could not have operated on close to zero revenue for many months.  With a fifth of hospitality jobs lost in 2020, without the furlough scheme, Government grants and changes to tax rules there would have been many more, alongside the significant number of businesses in this sector that have gone to the wall.

Although Covid-19 has wreaked havoc on the vast majority of businesses, hospitality's reliance on venues for gatherings of people has seen it subject to the harshest of restrictions.  Given the need for workers and customers to return to these venues, it is clear that the industry's recovery is massively reliant on a successful and efficient vaccination programme.  While there is light at the end of the tunnel, it is unlikely that we will reach that point until the summer at the earliest.  How can the sector use the next few months to prepare for this?

Unfurloughing and getting up to speed:

It is improbable that hospitality operations will increase from virtually zero to full capacity immediately following the lifting of restrictions.  We are likely to return to a tiered system so hospitality will reopen gradually.  Employers need to plan now to bring back their workforce in a measured manner to respond to increasing demand. 

  • Which roles will be needed straight away, how many of these and where? 
  • Will employees be brought off furlough and return full-time? 
  • Will furlough be rotated among employees? 
  • Will you increase hours gradually and use part-time furlough for hours not worked?

Taking time to think about this in detail will benefit rational business decision making and reduce the risk that any decisions are perceived are discriminatory or based on poorly evidenced assumptions.  From an employee relations perspective, employers need to make sure that they are acting as fairly as possible – this helps avoid complaints from employees who feel overlooked or harshly treated.  Consider the continuing impact of Covid-19 on staff – some may have unavoidable caring responsibilities and may be eligible to be furloughed for a little longer.  Above all, make sure that you communicate clearly and openly with staff.

Covid Security:

It is of paramount importance that working and hygiene systems are in place, refreshed, and ready to go.   The hospitality industry poured a tremendous amount of time, effort and expense into this before summer 2020; it is worth revisiting these arrangements to make sure that the provisions put in place then are still relevant and useful now.  Increased footfall will increase risks.  It is crucial to maintain the confidence and trust of employees and patrons alike.

Testing:

The Government has now launched a service to allow employers to order Covid-19' rapid lateral flow' testing kits for their employees.  Employers registered in England and who have 50 or more employees who, critically, cannot work from home, can apply online to receive testing kits for asymptomatic workers.  Those who display symptoms of Covid-19 are encouraged to stay at home and order an individual PCR test themselves through the Government website here.

Give some consideration to whether testing of asymptomatic employees is worthwhile in your business.  On its face, this gives added confidence, allowing those with Covid-19 to be identified before they can spread the virus to their colleagues and customers. 

While the availability of testing does not equate to an obligation to test asymptomatic workers, it does make it easier for employers to do so.  Although we know some individuals and communities may object to vaccination for various reasons, there is less of a clear objection to testing.  Employers who decide to make testing compulsory will be less likely to see push back from their workers and take advantage of the increased confidence that testing gives.

Consider how testing will be your operation and if you think it will, which employees (and in which roles) should be tested.  Well thought-out decisions made in advance and based on a robust assessment of the facts are, without exception, the best way for employers to approach this kind of decision.

Recruitment post-Brexit:

Many employers in the hospitality sector will, unfortunately, have had to make some redundancies over the past year.  To get back up to full capacity, to what extent do you have to undertake recruitment now?  Can the existing, trimmed back workforce work in a more efficient way that avoids the need for further recruitment? Do you have a talent gap and if so how are you going to fill it? Will you have to look at becoming a sponsor to recruit the people you need?

If not, employers should be mindful of the changes to the recruitment of EU nationals post-2020.  The EU Settlement Scheme permits individuals to apply for settled or pre-settled status by the end of June 2021.  To qualify, the individual must have started living in the UK before the end of 2020 (although there are some exceptions to this).  Any non-UK recruits not living in the UK by 31 December 2020 must go through the new 'points-based' process, both costly and quite time-consuming. 

Of course, there remains a large number of migrant workers in the UK who have applied for settled or pre-settled status available to be recruited as usual.  Home Office guidance on right to work checks has changed recently, and employers should make sure that they lawfully conduct themselves.   Remember that employers cannot compel a candidate to show evidence of settled or pre-settled status before the end of June 2021.  However, they can still use their passport or National Identity Card until 30 June 2021, so the risks here should be relatively straightforward to avoid.

LexLeyton’s free Right to Work guidance for employers provides some useful information and an easy to follow process map to help your business navigate the recruitment challenge. We are passionate about the hospitality sector and proud to work for many inspirational companies in this space.

If a free consultation with one of our team to soundboard any challenges you anticipate having in the weeks and months ahead would help you to prepare to get your business back on track, please don’t hesitate to reach out to us at legal@lexleyton.co.uk