There’s currently less than 3 months to go before new IR35 rules come into play that will have significant implications for businesses. They are of particular relevance to any medium or large businesses that use contractors, consultants, or self-employed individuals.

What is IR35?

The term “IR35” is the name given to a set of tax rules that cover “off payroll working”. They apply to any arrangements whereby a worker provides services to an end-user client company via an intermediary, usually a personal service company (PSC). Under the rules currently in force, the liability for assessing the correct tax position rests with the PSC. However, when the IR35 rules change, liability will shift from the PSC to the client.

Does IR35 apply to my business?

The new IR35 rules will have major consequences for client businesses who utilise contractors as they will have to decide whether the engagement falls within IR35. This is an important new obligation as it will determine which entity in the supply chain is responsible for operating PAYE on the fees charged by the PSC.  It requires assessing whether the worker engaged by the PSC could be deemed to be the client’s employee and making a “status determination statement” confirming the view reached on that point.

The changes were originally meant to take effect last year, but due to the coronavirus pandemic the start date was pushed back to 6 April 2021. This means that time is running out for businesses to prepare for the changes.

What do I need to do?

With just a few months left, it’s time to ensure your IR35 preparations are well underway. Steps for businesses to take now include to:

• get familiar with the new rules and responsibilities;
• engage with key internal stakeholders, such as HR, Tax, Finance, and departmental heads;
• audit any arrangements that could potentially fall within the IR35 rules; and
• decide on the strategy to ensure compliance.

Businesses that engage with contractors should liaise with LexLeyton now to plan for and implement processes to ensure compliance with the new rules from 6 April 2021. If a free consultation around IR35 and its impact on your business would help you prepare, or to discuss any other HR or employment related issue don’t hesitate to reach out to us at legal@lexleyton.co.uk.

After nearly 12 months of dealing with covid-19 most of us are fully aware of the obligations so self isolate if we have been in contact with someone with covid-19, whether we are notified through track or trace or we are simply following the rules as set out in the NHS guidance.  We are seeing that the new strain of covid-19 has resulted in more employees having to isolate at home following potential exposure to an infected individual.  This has been presenting two issues for employers:

1. Resentment between employees who can isolate and work at home and those that are obliged to stay at home and isolate on Statutory Sick Pay.
2. Those that see the relative ease of the self isolation system as an opportunity to take time off work whilst still receiving either company or statuary sick pay.

Situation 1: There is little the employer can do in scenario one and the situation is reflective in many businesses across the UK at present.  Whilst this situation may seem unfair at face value, it is simply reflective of the nature of the roles the employees undertake.  As an employer, the key obligation is to allow the employee to follow the guidance on isolation, ensure the workplace is covid-19 secure and that any health and safety risks are adequately controlled to protect those that remain within the workplace.   From a HR perspective, the employer should take steps to recognise the contributions being made by those whose roles necessitate a presence in the workplace and may utilise various formal and informal reward and recognition strategies to achieve this.

Situation 2: The nature of the symptom-reporting process and the ease of obtaining a self-download NHS isolation note rely on people telling the truth.  The Government have also confirmed that an Isolation notice is sufficient evidence upon which to pay statutory sick pay related to Covid-19.  With no checks and balances built into this system, it is relatively straightforward for individuals to manipulate the situation and take time off if they are not actually entitled to.  Asking an employee to undertake a test may appear to be the simple answer, however, the government website currently states that only those withsymptoms are eligible to get a test.  Crucially though, the website specifically states that individuals are not eligible for a test if their “employer or school has asked you to get a test but you have no symptoms”.  This means that it is difficult to prove how genuine the situation is. 

Employers are in a difficult position as the regulations require them not to force staff who have been instructed to self-isolate to leave their place of isolation (normally their home).  As per the Government guidance, failure to follow this guidance can result in fines for the employer starting at £1000.  Employers are therefore left with little option but to accept the information as presented by their employees, unless they have strong evidence to support the fact that the employee is not actually in isolation.  In these circumstances an investigation and disciplinary process can be considered.

LexLeyton are here to help with all your employee issues.  Our legal team can discuss a wide range of option as to how to handle your internal HR and employment law matters.

If a free consultation with our expert team on the matters raise here or on any HR or employment related issue would be of help to your business please don’t hesitate to reach out to us at legal@lexleyton.co.uk

Racial tensions have never been far from the headlines in the past year.  The killing of George Floyd, the Black Lives Matter movement and the stark difference in treatment of groups of rioters in the USA have underlined how far society still has to come in moving towards equality.  This year’s Martin Luther King Day is therefore an especially poignant time to reflect on progress, or the lack of it.

Discrimination, clearly, remains an issue.  I have written previously extolling the virtues of equality and diversity in the workplace, but there is still much work to be done.  The UK enacted the Equal Pay Act in 1970 with a single, simple goal in mind.  However, over half a century later Employment Tribunals remain faced with many thousands of claims for equal pay, never mind the more high profile cases seen at the BBC in recent years.  Are employers taking issues of diversity seriously enough?  The answer in a disappointingly high number of cases is no.

The question of how to increase diversity in the workplace is a thorny one.  Ideas of quotas tend to polarise opinion and many employers are apprehensive about being seen to ‘positively discriminate’.  However, the law provides employers with an answer to their concerns in the form of the positive action provisions of the Equality Act 2010.

Put briefly, this allows an employer to take proportionate steps in order to counteract a disadvantage or under-representation linked to a Protected Characteristic.  Positive action is extended to recruitment and promotion specifically as, in effect, a tie-breaker between candidates who are equally qualified. 

Under-representation is a root cause of a considerable amount of discrimination in the workplace.  Where a certain group is in a minority, it tends to be easier for that group to be treated less favourably, be subjected to ridicule and be marginalised in terms of opportunity, whether that be for training, promotion or recruitment in the first place.  It stands to reason that steps to reduce under-representation are a key weapon in the quest to minimise discrimination and increase workplace diversity.  Positive action is, therefore, a way quicken progress towards this. 

Some of the more forward-thinking clients of mine have embraced positive action.  Taking charities as an example, positive action has allowed many to transform their Boards, for example, from being ‘pale, male and stale’ to being constituted from diverse backgrounds and therefore in line with the wider society in which they work.  No employer who has done this has reported to me that they regretted doing so, such are the obvious benefits of diversity.  For those employers who have yet to embrace diversity, considering taking advantage of the law on positive action could amount to a fast-track route in to the 21^st century.

If a free consultation with our expert team on any HR or employment related issue would be of help to your business in moving forwards into what we hope is an optimistic future, please don’t hesitate to reach out to us legal@lexleyton.co.uk

What will Brexit mean for the future of employment law?

One consequence of the ending of the UK’s transition period following its exit from the EU is that the Government is now free to make changes to employment law that would not have been possible before. There are some limits, however. The trade agreement that the UK has reached with the EU states that in the field of employment law, neither side will ‘weaken or reduce’ levels of protection ‘in a manner affecting trade or investment between the parties’.

It is worth noting that this obligation is not limited to those areas of employment law governed by the EU – it refers to employment law as a whole. Unfair dismissal is not an area covered by EU law, but if the government were to repeal it altogether that would clearly be a breach of the trade agreement. It is also clear that the wholesale repeal of the Working Time Regulations or TUPE is out of the question.

Nevertheless, there are many changes that could be made that would not be regarded as sufficient to affect trade, but which could be of importance to those interested in employment law. The rules on holiday pay for example have been causing difficulty for many years and there is a serious disparity between the annual leave provisions of the Working Time Regulations and the requirements of the Working Time Directive as it has been interpreted by the European Court. There is now nothing to stop the UK Government from providing clarity on such issues as the inclusion of overtime in the calculation or the effect of long-term sickness absence on an employee’s entitlement. If the Regulations were to be amended, the UK courts would have to apply the new rules without considering the requirements of the Directive.

Other changes that might be suggested include: making it easier to agree a change in terms and conditions following a TUPE transfer, capping compensation in discrimination cases and perhaps simplifying some of the rules on agency workers. How much appetite or capacity the government has for making such changes remains to be seen. But given the outstanding commitments from the 2019 Conservative Party manifesto on redundancy protection for new parents and additional leave for carers, a significant Employment Bill in 2021 is very much on the cards.

Employment tribunal procedure – ACAS uplifts

Employers and employees must follow the ACAS Code of Practice in relation to disciplinaries and dismissals. If either party fails to follow the Code, the tribunal can increase or decrease tribunal compensation by up to 25%. In Wardle v Credit Agricole Corporate and Investment Bank, the Court of Appeal said that a tribunal should only fix the rate of uplift once it has considered how much the uplift would equate to financially, to ensure it isn’t disproportionate. An Employment Tribunal can ‘reconsider’ any judgment where it is necessary in the interests of justice. A tribunal can do this of its own initiative, at the request of the Employment Appeal Tribunal or if one of the parties makes an application for a reconsideration within 14 days of a judgment. The Employment Appeal Tribunal has recently looked at a case where an employer asked a judge to reconsider a case ‘of its own initiative’ in circumstances where they were out of time to make the application themselves.

In Banerjee v Royal Bank of Canada, the employee won his claim for whistleblowing unfair dismissal. The Employment Tribunal found that the employer had failed to follow the ACAS Code and ordered a 25% - the maximum – uplift. This was contrary to the Wardle approach because the percentage uplift was fixed before the remedy hearing which would calculate the employee’s compensation. This was especially important in this case because the employee was a highly paid City trader and the 25% uplift equated to £261,000. The employer wanted this decision to be reconsidered but by the time of the remedy hearing the time limit for making an application had expired. The employer argued that the tribunal could reconsider the decision of its own initiative, telling the tribunal ‘that’s what you should do’. The tribunal agreed. It decided that the parties should calculate how much compensation was owed to the employee and then address the ACAS uplift afterwards. The employee appealed, saying that the employer had essentially got around the expired time limit by planting the reconsideration idea, which meant any reconsideration would not be on the tribunal’s ‘own initiative’.

The EAT disagreed. Although the issue of reconsideration was discussed at the remedy hearing, the employer did not actually make an application. The tribunal could still decide itself whether to reconsider a judgment. The fact that the employer had reminded the judge about his ability to reconsider the judgment, and suggest that they should do this, did not undermine the tribunal’s ability to act on its own initiative. A (failed) application by one party to reconsider a judgment might stop an employment tribunal being able to take that step ‘on its own initiative’, but that had not happened here because no application had been made. An advocate can remind a tribunal about its own powers without undermining their ability to act independently.

This is a win for the employer in both form and context. The power to reconsider judgments is rarely used by tribunals. It is comforting to know that parties are not prevented from reminding a judge of the rules and their overriding duty to deal with matters fairly and justly. There is a sage reminder for employers though about the importance of making any relevant tribunal applications within the appropriate time limits. This judgment is also a helpful aide-memoire about ACAS uplifts, which should be considered at the remedy rather than liability stage.

Indirect discrimination

One of the key differences between direct and indirect discrimination is that a claim for indirect discrimination can be defeated if the employer can show that the provision criterion or practice under challenge is a ‘proportionate means of achieving a legitimate aim’. The circumstances in which this defence of justification will succeed have been the subject of many years of case law. One principle that has emerged is that an employer cannot simply rely on cost savings as a legitimate aim – although it has generally been accepted that cost can be counted as one among several factors – a so called ‘costs plus’ approach.

The issue came up for review by the Court of Appeal in Heskett v Secretary of State for Justice in which an employee complained of indirect age discrimination. The case concerned the pay of probation officers which was based on a pay scale with 25 incremental points. A probation officer would previously have progressed three points up the scale each year, with the result that they could reach the top of their pay scale within about 8 years. In 2010, however, the Government introduced a pay freeze – limiting the increase in any public sector employer’s pay bill to just 1%. The Probation Service responded to this by limiting pay progression to just one point on the scale per year. Since those at the bottom of the scale were likely to be younger than those at the top it was clear that this change would amount to indirect age discrimination unless it could be shown to be a proportionate means of achieving a legitimate aim.

The employer argued that its policy was legitimate given the limitations imposed on it by central Government. The employee argued that this amounted to no more than relying on a desire to avoid the cost of allowing pay progression to continue as it had in the past. The Employment Tribunal and the Employment Appeal Tribunal (EAT) sided with the employer and the employee appealed to the Court of Appeal.  

The Court conducted a detailed review of the case law and concluded that the term ‘cost plus’ was unhelpful. What had to be decided was whether, looked at fairly, the employer’s primary objective had been to save money. If that was all the employer was doing, then that would not amount to a legitimate aim. However, an employer was entitled to take proportionate steps to ensure that it ‘lived within its means’.  It followed that the Tribunal was entitled to find that the employer in this case was pursuing a legitimate aim in seeking to operate within the financial constraints imposed on it by the Government.

As for proportionality the Tribunal had taken into account the fact that the employer had accepted that its current pay system was unsatisfactory and that it intended to change it so that it was less dependent on length of service. The Court of Appeal rejected the argument that this was an irrelevant consideration. The Tribunal had held that the reduction in pay progression was justified as a temporary measure while the employer carried out a more fundamental reform of its pay structure. That was a finding that it was entitled to reach, although it raised the possibility of future claims succeeding if the reform was not carried out. The appeal was dismissed.

Dismissals for Redundancy

A redundancy is a dismissal as a result of a workplace closing down or the employer needing fewer employees to do work of a particular kind. In Berkeley Catering Ltd v Jackson the question was whether the reason that an employer needed fewer employees made a difference to whether or not there was a redundancy situation.

Mrs Jackson was the Managing Director of a company owned by Mr Patel. Over the course of 2017 Mr Patel began – as he himself admitted - to undermine Mrs Jackson and disparage her in front of colleagues. He also began to take a more active role in the business. In 2018 he decided that he would step in as a full time CEO, making the role of Managing Director redundant. After a series of consultation meetings, Mrs Jackson was dismissed.

She claimed unfair dismissal, arguing that her redundancy was bogus. The Tribunal upheld her claim. There was no diminishing need for an MD role. Mr Patel had simply decided to increase the amount of time that he put into the company. There was no financial difficulty and the employer had taken on an Events Director after Mrs Jackson was made redundant, indicating that there was no diminishing need for senior management staff as a whole.

On appeal, the EAT held that this was the wrong approach. The Tribunal had distracted itself by asking whether there was a ‘genuine’ redundancy situation. A redundancy situation either existed or it did not and an employer was free to organise its affairs in such a way as to reduce its requirement for employees. If it did so, then the motive behind that decision was irrelevant to the question of whether or not there was a redundancy. Motive was of course relevant to the issue of reasonableness, both in terms of whether the employer had acted in good faith and whether Mrs Jackson should have been offered the role of Events Director. But the Tribunal had fallen into error by bringing motive into play when considering whether there was a redundancy situation. The case was sent back to a different employment tribunal to decide whether the redundancy situation was genuinely the reason for dismissal and whether the dismissal was fair.

Whistleblowing

An employee who is dismissed for making a public interest disclosure – whistleblowing – can claim unfair dismissal even without the two years’ continuous service that is normally required. What is more, there is no cap placed on the amount of compensation that can be awarded, so successful claims can be very expensive for employers.

In the case of Simpson v Cantor Fitzgerald however, the employee’s claim was unsuccessful. Mr Simpson had been employed for less than a year as a trader for an investment bank when he was dismissed. He claimed that his dismissal was the result of numerous allegations that he had made over the course of his employment about the behaviour of his fellow traders. In all the Tribunal identified 37 specific allegations.

The Tribunal held that none of these were protected disclosures. Broadly, a protected disclosure is a disclosure of information that tends to show that some legal wrongdoing has occurred and which the employee reasonably believes is in the public interest. The Tribunal found that many of Mr Simpson’s disclosures were really just complaints that he had lost out on commission because of the way in which trades were carried out. The real reason he had been dismissed was that ‘distrustful and obstructive’ behaviour had made it ‘utterly impossible for the team to work with him’.

Nevertheless, the case reached the Court of Appeal which upheld the Tribunal’s findings.  The Tribunal had been entitled to find that the allegations that he relied on were not protected disclosures – whether because they were insufficiently specific or because Mr Simpson did not genuinely believe that they tended to show wrongdoing on the part of the employer or its employees. In any event, the complaints themselves were not the reason for dismissal. The Tribunal had found that the manager who made the decision to dismiss was not influenced by those allegations, but by the hostile and corrosive attitude that Mr Simpson displayed towards colleagues, as well as his poor timekeeping. He was dismissed because his employer considered him to be a poor team player, not because he had made protected disclosures.

Unfair dismissal and redundancy

An employer making an employee redundant will not normally be acting reasonably unless it considers whether there is any alternative work that may be offered. In Aramark (UK) Ltd v Fernandes however, the employee argued that the employer should also have considered placing him in a bank of casual workers after his redundancy had taken effect.

The employer maintained a list of workers who they would call upon to perform ad hoc assignments from time to time. They did so frequently with the result that those on the list, while not having the security of employment, had a reasonable expectation of future earnings. When Mr Fernandes was placed at risk of redundancy he asked to be placed on the list as that would help him offset his lost income. The employer refused and a Tribunal subsequently held that this rendered the dismissal unfair.

The EAT overturned this decision. In an unfair dismissal case, the question is whether the employer has acted reasonably in treating the reason for dismissal – redundancy in this case – as a sufficient reason for dismissing the employee. Placing Mr Fernandes in the bank of casual workers would not have altered the fact that he had been dismissed – it was not a way of avoiding dismissal as an offer of alternative work would have been. It was therefore not a relevant consideration in deciding whether or not redundancy was a sufficient reason for dismissal. Whether the employer had granted the employee’s request or not, he would have been dismissed all the same. Since this was the only ground on which the Tribunal upheld his claim, the EAT ruled that the dismissal was fair.

National minimum wage

The government has accepted the recommendations of the Low Pay Commission and announced the National Minimum Wage and National Living Wage rates which will come into force from April 2021. Recognising the formidable task of recommending minimum wage rates in the middle of a global pandemic, the Low Pay Commission has sought to balance the needs of low paid workers – many of whom are doing critically important work – and the real solvency risks which small businesses are currently exposed to.

The different terms can be confusing. The National Minimum Wage is the minimum hourly pay that almost all workers are entitled to. The National Living Wage is higher and is currently paid to workers who are over 25. From April 2021, the government is extending the NLW to 23 and 24 year olds too. The new rates from April will be:

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

Find full details at https://www.gov.uk/government/news/national-living-wage-increase-to-protect-workers-living-standards.

Constructive dismissal and maternity leave

A constructive dismissal involves the employee resigning in response to fundamental breach of contract on the part of the employer. Normally the employee will need to make it clear both that they are resigning and that the reason for their resignation is the employer’s conduct. In Chemcem Scotland Ltd v Ure however the EAT held that these requirements were met by implication when an employee simply failed to return from maternity leave.

The case involves a family business in which the employee in question was the daughter of the owner. While she was on maternity leave, he was in the process of divorcing her mother, having formed a relationship with someone else – who was also an employee of his business. If his daughter returned from maternity leave, she would be his new partner’s manager. It seems that this led to some tension and conflict.

The Tribunal identified a number of matters in the handling of her maternity leave that amounted to a breach of mutual trust and confidence. These included failing to pay her SMP on time and refusing to answer queries about what she was entitled to. The whole circumstances, the Tribunal found, showed that her father was hostile to the idea of her continued employment by the company. In the event she did indeed decide not to return but did not expressly resign. The Tribunal found that her resignation could be implied from the circumstances and took effect on the day when she had been due to return to work.

The EAT upheld this finding. It rejected the argument that the employee had not clearly communicated the fact that she was resigning or her reason for leaving. As the Tribunal had pointed out the employer had not, when she failed to return, taken any steps to clarify matters or ask her about her intentions. In the circumstances of the case her failure to return was ‘eloquent of the true position’ and this was understood by the employer.  

Breach of contract

Repudiatory – or very serious – breaches of contract entitle the other party to the contract to consider that the contractual terms have been metaphorically ripped up. What happens in a case where one party contemplates breaching a contract, but the other party beats them to it? In Palmeri v Charles Stanley, Mr Palmeri was a self-employed stockbroker who had worked for Charles Stanley for more than 20 years. He had a three-month notice period, but his contract did not contain a payment in lieu of notice (PILON) clause. The business decided to change its operating model to take a bigger chunk of Mr Palmeri’s earnings. He was not pleased. The company gave him an ultimatum – sign a new contract on the new terms or leave immediately with a PILON. Mr Palmeri reacted furiously and was verbally abusive to the managers present and the firm more generally. He then agreed to take the new terms under protest for the duration of his notice period. Unfortunately, the abusive behaviour continued and escalated so the company withdrew the offer of new terms and summarily (without notice) terminated his contract.

Mr Palmeri brought two claims in the High Court – one for breach of contract for the summary termination and a second claim for breach of the implied term of mutual trust and confidence for failing to allow him an orderly exit for his clients. The company said Mr Palmeri’s abusive behaviour was a repudiatory breach of contract which entitled them to ignore contractual terms and terminate without notice. They also relied on several serious regulatory breaches which they only discovered after his termination. They said he was already in repudiatory breach of contract due to those regulatory breaches.

The High Court agreed that the company had no contractual right to make the original offer to Mr Palmeri - accept the new terms or receive a PILON - because they had no contractual right to pay him in lieu of notice. However, they said Mr Palmeri’s behaviour, including the abuse and the regulatory breaches, amounted to serious misconduct and a breach of the implied duty of trust and confidence. That repudiatory breach by Mr Palmeri justified the employer’s summary termination. The fact that the firm was preparing to breach his contract in future (by paying him in lieu of notice) if he didn’t agree to new terms was irrelevant. They were still entitled to rely on the abuse and regulatory issues as serious breaches of contract enabling them to avoid its terms on notice.

This case shows that repudiatory conduct by one party releases the other from the terms of the contract. In this case, the company had been planning to pay in lieu when it hadn’t got the contractual right to do so. Fortunately, Mr Palmeri’s bad behaviour got there first and prevented the employer from effecting that proposed breach of contract. Always check contractual terms before paying in lieu of notice. These clauses should be standard in contracts to give businesses flexibility when it comes to termination.

And Finally…

Employers across the country are being encouraged to accommodate the need for employees to self-isolate when required to do so because of Covid. According to widespread reports over Christmas, however, this message did not reach a newsagent in Lincolnshire who sacked a 15 year old paperboy for missing work after being told to self-isolate by his school. The boy’s father is reported to be considering legal action, but may face some difficulty. It does seem that the boy in question has been doing the job for around two years – so it is possible that he has sufficient length of service to claim unfair dismissal. But it is not entirely clear that a 15-year-old, still legally regarded as a child, has the capacity to enter into a contract of employment in the usual sense.

The law is unclear. In 2003 a 15-year-old paperboy was held not to be a worker for the purposes of the Working Time Regulations in the EAT case of Addison v Ashby. But that case turned on the fact that the working time of children was dealt with by the Children and Young Persons Act 1933 and there was no appeal from the Tribunal’s finding that the boy in question had been unfairly dismissed. The issue remains open – possibly because the rather modest pay of children delivering newspapers makes a lengthy legal battle uneconomic. Still, the boy’s father in this case does seem very annoyed. On balance, the newsagent might be better off reconsidering their decision.

LexLeyton in the news

Real Business: Experts explain: An SME guide to unfair dismissal

Yorkshire Times: Business Responds To Treasury Business Support Announcement

HR Review: Chancellor offers new grants to businesses in wake of lockdown restrictions

Business Advice: Unfair dismissal – a concise guide for employers

In the 14^th Century the Bubonic Plague decimated half of Europe’s population. Major socio-economic change followed; the invention of the printing press made long distance learning and communication possible and ultimately led to the scientific and industrial revolutions. While COVID-19 is unprecedented in our time, the bounce back is evident in history.

Reasons to be positive in 2021.

COVID Certainty

Predictive models built from early vaccine data suggest herd immunity is most likely in Q3 this year with most forecasting a drastic return to normality in the Spring. Having certainty creates confidence, drives action and enables decision making in business. The vaccine has already had a positive impact on global stock markets with some airline groups up 40%.

Growth

A recent study of over 1000 small businesses revealed that 76% have introduced a new service as the result of covid-19. New services include online bookings, home delivery services and online video consultations or viewings. Over three quarters have also introduced new ways of communicating; instant messaging, Whatsapp, and video calling. These changes will create lasting growth for business who will be able to reach more customers, more efficiently in 2021.

Brexit

Whether you’re a leaver or a remainer, the outlook for most is more positive now than it was before the Christmas Eve agreement. Tariff-free trade, reduction in technical barriers to trade, access to EU government procurement contracts and no restrictions on road haulage or air travel will be welcomed by the majority of business leaders.

Diversity

Inequality is a humanitarian tragedy first and foremost. It’s a tragedy in business too as we know that companies who embrace diversity, financially outperform those who don’t. Why should businesses feel positive about 2021 then? Nike set the benchmark for diversity strategy back in 2015 but awareness raised by the BLM movement in particular and the return of gender pay gap reporting for example are driving wholesale change now. Businesses who address diversity can look forward to attracting the best talent, improving company culture, more innovation, consumer loyalty and greater profits.

Community & Culture

This year, the pandemic and issues related to social injustice have highlighted a prevailing sense of community. Google launched a campaign to support 1000 local businesses and studies show a 28% increase in business referrals in 2020. Business leaders appear more conscious of their wellbeing strategies and even in the most boisterous work environments, we’re asking ‘how are you doing?’ Having conducted hundreds of free business consultations since March we’ve been struck by the flexibility shown by employees and sacrifice shown by employers and the overwhelming sense of mutual value heading into 2021. 

If a free consultation with our expert team on any HR or employment related issue would be of help to your business in moving forwards into what we hope is an optimistic future, please don’t hesitate to reach out to me directly at tdurance@lexleyton.co.uk or legal@lexleyton.co.uk

January is the month commonly associated with cutting back after overspending at Christmas and setting resolutions for the year ahead, be they financial or otherwise.  Money worries are not necessarily limited to January though and employees financial concerns, may be one of the factors impacting on their performance at work.  To illustrate this, in a survey conducted by the CIPD and Close Brothers entitled “Financial well-being: the employee view”, they found:

• One in four workers report money worries have affected their ability to do their job;
• One in ten say they have found it hard to concentrate/make decisions at work because of money worries; and
• One in ten workers report that physical fatigue caused by lost sleep worrying about money has impacted on their productivity. 

The reality of the situation?

According to the money advice service 11.5 million people in the UK have less than £100 in savings and 1 in 4 UK households have no savings at all.  That’s a lot of pressure for individuals to be carrying.  Further, financial issues may also effect employees differently.

In respect of access to finance Hanadi Al-Sadi, social researcher at ‘Fair 4 All Finance’ stated in a recent article, “systemic failures have meant that financial exclusion disproportionately affects certain groups of people such as women with caring responsibilities, those on low incomes or in precarious employment, ethnic minorities and those with disabilities.  Black-owned businesses are four times less likely to be approved for loans and there is also a short-term income shock for those who have been newly-diagnosed with cancer which can make it difficult to meet mortgage or other monthly payments for example,”

Financial Inclusion

The government defined financial inclusion in a report to the select committee in 2017 as meaning  “that individuals, regardless of their background or income, have access to useful and affordable financial products and services. These include products and services such as banking, credit, insurance, pensions and savings, as well as transactions and payment systems, and the use of financial technology”

With auto-enrolment, employers are assisting to some extent with the pension conundrum, but can employers do more to be financially inclusive?  Can an employer have a positive influence on an employee’s financial wellbeing?  After all, research has shown that an employee’s financial concerns could impact overall business performances, so is it in an employer’s interest to consider this?

For many, now will not be the right time to examine reward and benefits strategy, but smaller things can help.  Ideas we have seen employers using are:

• Financial wellbeing days – over and above their annual leave, employees can book a day off per year, to sort out their personal financial affairs – such as determining the best value utility company, meeting with their banks, speaking to their credit card companies or loan providers or simply for time to review their personal budgets. 
• Access to technology – some employees do not necessarily have access to computer technology at home.  Offering employees access to a computer facilities they can use to contact financial institutions, access money and budgeting assistance websites or undertake their online banking may be of assistance. This may include amending your IT & communications policies.
• Encourage savings through payroll linked savings accounts.
• Encourage employees to share their concerns – clearly an employer cannot be a financial advisor, but if employee have worries they could be direct to an appropriate body such as the money advice service - https://www.moneyadviceservice.org.uk/en

LexLeyton offer a full employment law and HR service and whilst we cannot assist with or give financial advice, we are here to help you deal with any welfare issues you may be experiencing with your employees. For a free consultation on this or any other HR or employment law issue don’t hesitate to reach out to us at legal@lexleyton.co.uk

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?

For me no two days are the same and I enjoy that variety.  Three or four times a week I get up and start the day with a 50 minute HIIT or weights session.  I like to exercise in the morning so I know it is done!

My working day starts at 9am with a team video call.  As a remote worker, I really appreciate starting the days with a catch up with my colleagues.  It is a great forum to share legal developments and best practice.  I then check my emails, respond and return any calls. 

Over the day I support clients with a variety of HR and employment law matters, being dual qualified as a HR professional and also an employment law Solicitor allows me to discuss matters as diverse as appraisal schemes and HR best practice to TUPE, settlement agreements and employment disputes with clients. 

As a true employment generalist, I work with clients from a number of sectors and I love getting to know their businesses and specific ways of working.  I encourage clients to call me early with their concerns and hence, I take a number of calls and video calls throughout the day and then complete the necessary follow up work or drafting.  When I am not working with clients, I write content for our social media channels.

My working day should finish at 16:30, after which I pick up the kids from school, make dinner and then twice a week do a zoom yoga class, otherwise I try to and fit in a run. The rest of the evening is spent on the usual household tasks!

What is your favourite part about working at LexLeyton?

We work together as a team to provide the best possible service for our clients.  This is especially important to me as a part timer, as I am confident that our clients are well looked after on the days I am not in.

What are the biggest challenges you face in your job?

There have been hugely busy periods with the constant change and uncertainty the covid pandemic has brought.  It is important to me to be there for our clients in these difficult times.  I sometimes wish there was an extra day in the week!

What is your proudest moment at LexLeyton?

As a team, I am really proud of how we have supported clients through the covid pandemic.  We have worked with a lot of uncertainty and change and we have all pulled together to deliver.

What do you like to do in your free time?

I love to spend time outdoors, whether it is running, hiking or exploring with the kids.  I especially love the forest, the mountains and the beach.  I also love to travel and see the world.

What is your guilty pleasure?

I don’t get the opportunity or time to watch much on TV, but when I do it tends to be the easy to watch stuff – any of the ‘Real Housewives’ series is a particular guilty pleasure.  I also loved watching ‘Jane the Virgin’ and the new ‘Dynasty’ on Netflix!

What or who inspires you?

I like to see people doing in well in their own businesses.  I recently read Michelle Mone’s autobiography and her story is inspiring.

What is one thing you can’t live without?

Exercise – it is important to me to remain as fit and healthy as possible. 

What is your favourite quote?

“What doesn’t kill you makes you stronger” I believe that in whatever we do we need to challenge ourselves to grow and develop.

What is your biggest fear?

I am not very good with heights!

What is something that not many people know about you?

I have run the Snowdonia marathon four times with my husband.  It is a demanding course and it gives you a real sense of achievement to finish it.

As most employers are aware, staff working on their premises through an Agency are far from typical employees. Yet, following the controversial Employment Appeal Tribunal (EAT) decision in Angard Staffing Solutions Ltd & Anor v Kocur & Anor (Angard Staffing), it now appears that agency workers' rights are even further away from those of employee that one might have thought.

Agency worker's rights (the most basic ones) exist from day one of an assignment. They remain unchanged, and they are: protection against discrimination; National Minimum Wage entitlement and a minimum of 5.6 weeks' holiday entitlement. Additionally, agency workers also always have the same right as direct employees of the hiring organisation to use any shared facilities and services.

However, it is in respect of rights which are only granted after 12 weeks of working on the same assignment at the same hiring organisation, that the EAT mostly looked at.

The law gives agency workers the right to be informed by the hirer of any relevant vacant post. Until the EAT latest decision in Angard Staffing, many believed (myself included) that this was in place to give agency workers the same opportunity as a comparable worker to find permanent employment with the hirer. However, the EAT held that this provision does not mean that agency workers have a right to be entitled to apply for and be considered for internal vacancies on the same terms as directly-recruited employees. Rather, they must simply be given the same level of information about the vacancies.

Additionally, in Angard Staffing the EAT gave further details on how to interpret Regulation 5 which entitles agency workers to the same basic working and employment conditions as they would be entitled to have they been directly-recruited by the hirer. The EAT made clear that “same working conditions” does not mean agency worker’s contractual hours cannot be legally longer or shorter than comparable directly-recruited staff. Moreover, the EAT held that agency workers are not entitled to the same level of training, same scheduling of rest breaks and that employers can afford direct employees first refusal of overtime.

This decision -  albeit unfortunately making many agency workers rather unhappy – makes good sense as it allows more flexibility to employers which is of course one of the main reasons for contracting with Agencies in the first place.

If your business would be helped by sound boarding any of the issues raised here or any HR or employment law concern that you might have, don’t hesitate to reach out to us for a free consultation with one of our expert legal team on legal@lexleyton.co.uk

In celebration of World Braille day, it is crucial to raise awareness of the issues impacting those who are blind or visually impaired within our society and what can be done to improve their integration within the world of work.

Two hundred years ago, the invention of braille, completely transformed accessibility for those with visual impairments, but, fortunately, the improvements did not stop there.

In 2021, the number of assistive technologies that exist to help blind individuals have a standard work life is tremendous. Why then are only 27% of blind and partially sighted people of working age currently in employment in the UK?

According to the Royal National Institute of Blind People (RNIB), more than two million people are living with sight loss - including 350,000 people who are registered as severely sight impaired (completely blind) – and, even though the UK government is committed to halving the disability employment gap in the next 50 years, things are simply not moving quickly enough.

As an employer, one can do so much to help employ more people with this disability. Putting aside the ethics behind it, there are also many corporate advantages to hiring individuals suffering from vision loss. According to a new study led by NEI-funded researchers at Massachusetts Eye and Ear, blind individuals have enhanced cognitive functions such as memory, speech and language. Furthermore, from a young age, blind children are systematically taught social interaction, assertiveness and communication skills, allowing them to work very efficiently in a team. Who would not want to employ someone with astounding teamwork skills? Not to mention that hiring people with visual impairments increases overall workforce diversity and offers new and different perspectives on business challenges and opportunities.

Employers often assume that technologies linked to vision loss are prohibitively expensive, but help is available via the publicly funded employment support programme Access to Work. The scheme will help identify changes needed in the workplace and finance most of the extra costs (between 80% to 100%) of implementing those changes. For example, blind and partially sighted people successfully use computers in the workplace through synthetic speech, magnification and braille displays which can be entirely paid for by the scheme. Additionally, the scheme will pay for the help of a Support Worker for up to 20 hours per week.

Employers also worry about the health and safety impact and the adjustments to their office space if they were to allow a guide dog in the workplace. However, it is important for employers to note that not only it has been estimated that as few as 1 to 2% of blind or partially sighted people use guide dogs to get around, but the dogs have been specifically trained not to interact with or disturb other people in a work environment. Moreover, guide dogs are exempt from most of our health and safety legislation.

For all of the reasons mentioned above, enabling visually impaired workers to work for your business should perhaps be in your 2021 resolutions. If you want more information or visibility in the Blind community, do not hesitate to reach out to organisations that cater to disabilities such as RINB. Additionally, you can learn more about making your application process accessible to blind candidates on W3C.

If you would like support around any of the issues raised in this blog or if a sound boarding session about any HR or employment law issue could help don’t hesitate to reach out to our team for a free consultation or contact us at legal@lexleyton.co.uk.

The Chancellor announced on the 17^th of December that the Coronavirus Job Retention (‘furlough’) scheme will be extended beyond its current end date of 31st March 2021 and will now end on 30th April 2021.

For the duration of the furlough scheme, the Government’s contribution to pay will remain at 80% (subject to the existing cap of £2,500 per month), with only national insurance and minimum auto-enrolment pension contributions being paid by the employer.

In addition, Mr Sunak announced the extension of Government business loan schemes until the 30^th of March 2021.

The Government has indicated that the furlough scheme will not change again, and has removed references to a January review in its online guidance.

The updated key dates are:

• 14 January 2021 – final date to submit claims for December 2020 by 11:59pm
• 15 February 2021 – final date to submit claims for January 2021 by 11:59pm
• 15 March 2021 – final date to submit claims for February 2021 by 11:59pm
• 14 April 2021 – final date to submit claims for March 2021 by 11:59pm
• 14 May 2021 – final date to submit claims for April 2021 by 11:59pm.

The focus will swiftly shift in early 2021 to the Chancellor’s first post-Brexit budget on 3 March, where we can expect details of how business’ in the UK will be weaned off from the furlough scheme successfully, in order to protect jobs and industry more widely.

If the announcement affects your business, please contact Lexleyton to discuss your recovery strategy and how our specialist employment lawyers would assist.

Many of us spend a large proportion of our time at work, so it’s essential that the quality of the working environment is good, in order to protect general wellbeing.

From early 2020 the working landscape changed dramatically driven by the COVID pandemic and the unforeseen impact on business operations across industries, demanding remote and flexible working to enable businesses to continue to operate.

Whilst for so many people their ‘place’ of the work changed, issues experienced in the office may have spilt over into remote working, with tensions between team members continuing and in some ways taking on a different ‘form’.   Absence does not necessarily ‘make the heart grow fonder’ and where old tensions still exist, they need to be understood, managed and resolved.  This article looks at ways to do that.

Tension and Conflict – how to manage issues remotely

Firstly, it is important to understand that some tension can be positive, such as genuine competition between team members which can drive sales or general business performance.  However managers need to recognise when a desire to win spills over into something different.  Negative conflict such as bullying, belittling and personality clashes can upset individuals and undermine team morale and hence the importance of addressing issues early and considering how to deal with this sensitively, often made even more challenging when this takes place across a video screen.  A good manager knows where the fine line between positive competition and underlying tension sits and takes action as appropriate, wherever and however the issue has arisen.

Here are our top tips for managing conflicts whilst remote working:

1 – Prevention is better than cure:

Managers need to deal with difficult situations before they escalate into something more significant and before they present a risk of a claim against the business and/or an individual.  Managers are best placed to do this as they know their teams well.  Having strong relationships with team members allows for conflicts to be anticipated, problems to be aired and for managers to have a better insight into matters which may be affecting their team.  In the remote world, ‘out of sight’, should not be ‘out of mind’.  Managers shouldfind a timescale that suits and proactively schedule online 1-2-1 catch ups with the team, as well as regular online team meetings.  This way a general awareness of what is happening at ground level can be developed and squabbles and negativity can be spotted and addressed in a timely manner.

2 – Be aware of simmering tensions:

Some individuals may bottle things up and allow them to ‘grow before they blow’ others may be quick to anger and complain.  It’s the role of the manager to recognise when this is happening.  The 1-2-1 is the forum to spot this and managers should not be afraid to tackle issues head on notwithstanding that the video might feel like a challenging barrier to open and honest conversation,  and encourage employees to open up about their concerns, so they can be resolved.

3 – Do not personally get involved in office gossip or politics:

Casual kitchen and water station conversations may be a distant memories, however it still remains important for managers to not get drawn into gossip or office politics.   Whilst some discussions of this nature are inevitable across team members, managers should not participate.  Watch out for the MS Teams chit chat and sub groups forming on other platforms like Whattsapp where discussion crosses the boundaries of work and personal life. If colleagues are talking about each other, managers should ask them to stop before tensions arise or issues occur.  A manager who participates will lose the respect of their team.  This same advice applies to online chat and emails.  If managers sense that discussions may be discriminatory in nature, formal procedures should be followed.

4 – Set clear expectations in respect of conduct.

Managers should be clear in what they expect from their teams in general and during meetings whether they take place remotely or in person.  Meetings should be professional and controlled.  Contributions made by team members should be respected and negativity should be challenged.  Everyone should be encouraged to contribute and debate rather than criticise.  As far as possible issue should be resolved rather than being left to simmer.  In order for a manager to gain respect and avoid resentment growing between team members, favouritism should not occur, so be mindful of how you chair a remote meeting and be conscious about ensuring that everyone gets the opportunity to speak – something that can be difficult to manage across a screen and which might require prompts or expectation setting about who will speak, about what, and when.

5 – Deal with individuals who are causing issues:

An individual may not necessarily see the impact their behaviour is having on others, or alternatively there may be other issues external to work that are impacting upon the individual’s behaviour.  Sometimes a 1-2-1 discussion is all it takes for the manager to understand and resolve matters.  Managers should not shy away from discussing negative behaviours.   Where matters do not improve after informal intervention, more formal action can be considered.

When problems escalate:

If situations cannot be resolved during 1-2-1 discussions, managers need to consider more formal options, which may include a grievance process for any individuals with concerns and as applicable, performance management or disciplinary action either remotely or depending on what circumstances and socially distancing restrictions exist, taking steps to do this in person.

If your business would be helped by sound boarding any of the issues raised here or any HR or employment law concern that you might have, don’t hesitate to reach out to us for a free consultation with one of our expert legal team on legal@lexleyton.co.uk

Take advice and seek support and reassurance early, to ensure that you have the confidence to know your options and can deal with these kinds of issue at ground level and before matters escalate into a more formal process.

The Canadian actor Elliot Page, who rose to fame in the movie Juno as Ellen Page, recently announced that he is transgender. In the past, he would not have been protected from gender reassignment discrimination unless he had undergone or was intending to undergo medical treatment to reassign his gender.  However, that has now changed with the case of Taylor v Jaguar Land Rover.

In a landmark case, the Employment Tribunal decided that the protected characteristic of gender reassignment includes persons who identify as non-binary and gender fluid. It is likely that with time other complex gender identities will be deemed to fall within this protected characteristic.

The case concerned an employee of Jaguar Land Rover who described herself as “gender-fluid” and “transitioning”, but who had no intention of undergoing surgery to reassign her gender. She retained her male birth name but chose to dress in a male style on some days and a female style on other days.  The employee was subjected to gender reassignment harassment over a long period. Although she complained to Jaguar Land Rover about her treatment, her employer did not take any action to prevent the harassment from occurring.

The claimant brought claims of constructive unfair dismissal and discrimination on grounds of sexual orientation and gender reassignment, and victimisation.  The key question for the Tribunal to decide – whether a non-binary, gender fluid person has the protected characteristic of gender reassignment – was a novel point of law.

The definition of gender reassignment in the Equality Act describes a person who is undergoing or has undergone a process (or part of a process) to reassign their sex by changing “the physiological or other attributes of sex”. The Employment Tribunal confirmed that a person need not have (or intend to have) surgery in order to identify as a different gender to their birth sex. Starting to dress or behave like someone who is changing their gender or is living in the identity of the opposite sex would be sufficient to qualify for protection from gender reassignment discrimination.  The claimant accordingly succeeded in her various claims. 

The Employment Tribunal considered it appropriate to award aggravated damages in this case because of the “egregious way” in which the claimant was treated and the “insensitive stance” taken by Jaguar Land Rover during the legal proceedings. This was in addition to a 20% uplift on damages due to Jaguar Land Rover’s “complete failure” to comply with the Acas Code of Practice when handling the claimant’s grievance. The claimant’s agreed compensation amounted to the substantial sum of £180,000.

The Tribunal was particularly scathing of Jaguar Land Rover’s handling of the claimant’s complaints, stating: “We had not seen a wholesale failure in an organisation of this size in our collective experience as a jury.” It noted that “there was nothing in the way of proper support, training and enforcement on diversity and equality”.

Rather surprisingly for an employer of 50,000 staff, the company had no Equal Opportunities Policy. Its Dignity at Work Policy covered bullying and harassment, but staff had not been provided with any training on it. No-one had been designated to deal with diversity and equality issues.

Sustainable business growth demands forward thinking strategies around equality and diversity. Clear policies and related manger and employee training around diversity and inclusion are vital to ensure employers can reduce the type of risk that materialised at Jaguar Landrover which had such damaging a commercial and reputational impact.

If a chat to one of our expert team for advice on how to transform your diversity and inclusion practices, and for help with preparing appropriate policies don’t hesitate to reach out to us for a free consultation or contact us at legal@lexleyton.co.uk.

Today is the United Nations international day for Persons with disabilities around the world. Their message is that disability equals diversity, not disadvantage and to highlight this the UN has marked the International Day of Persons with Disabilities since 1992, to spread the word on disability issues and mobilise support for the dignity, rights and well-being of disabled people.

There are around 13.3 million disabled people in the UK, with 17% being born with a disability but the majority acquiring their disability later in life.  According to the Office for National Statistics, in 2019 disabled people in the UK were 28. 6 % less likely to be in employment than non – disabled. With 800,000 disabled children under the age of 16 (that’s one child in 20), many families are juggling work with caring for a disabled child.

These figures highlight how significantly disability affects millions of people and their families every day and how it’s impacts are woven in to the lives of millions of workers. The  fact that most people live with acquired disability, means that many of your employees will become disabled whilst they are working for you, and will need support from you as their employer.

We have recently celebrated 25 years since The Disability Act 1995, now incorporated into the Equality Act 2010 which sets out the protections for disabled people in the workplace and in the provision of services. 7.7 million working age people in the UK have a disability. Given that the unemployment rate (calculated as a proportion of the economically active population) for disabled people was more than twice that for non-disabled people (6.7% compared with 3.7% in 2019) at around 300,000 unemployed disabled people in 2019, work still needs to be done by employers to ensure that they are attracting disabled candidates and are offering them the support they need to undertake their roles.

Supporting Disabled People at Work – what can you do?

Key pathways to support disabled people into work are contained in the Disability Confident and the Access to Work schemes. Over 18,000 organisations have signed up to  being  Disability Confident,  and help play a leading role in changing attitudes for the better by  changing behaviour and cultures in their own businesses, networks and communities, and reaping the benefits of inclusive recruitment practices.

Disability Confident helps employers recruit and retain great people, and draw from the widest possible pool of talent, secure high quality staff who are skilled, loyal and hardworking, improve employee morale and commitment by demonstrating that you treat all employees fairly. It also helps customers and other businesses identify those employers who are committed to equality in the workplace. To be recognised as a Disability Confident Committed employers agree to the Disability Confident commitments and identify at least one action that they will carry out to make a difference for disabled people.

Business Benefits of being Disability Confident

The commitments are inclusive and include accessible recruitment, communicating vacancies, offering an interview to disabled people, providing reasonable adjustments and supporting existing employees all of which are not just important practices to support our disabled population but are key to ensure a diverse, inclusive and accessible workplace – benefitting a sustainable and attractive culture. Your business may be doing these things already. If so, the scheme is a great way of letting everyone know that you’re serious about equal opportunities for disabled people and if not, an opportunity to look at what more you can be doing to create a diverse and great place to work.

Once you’ve signed up as Disability Confident Committed you’ll receive a certificate in recognition of your achievement ,a badge for your website and other materials for 3 years, a self-assessment pack to help you continue your journey to becoming a Disability Confident Employer

Employers often worry about the possible associated costs of employing a person with  a disability but help is out there via the Governments ‘Access to Work’ scheme. Access to Work is a publicly funded employment support grant scheme that aims to support disabled people start or stay in work. It can provide practical and financial support for people who have a disability or long term physical or mental health condition. Support can be provided where someone needs support or adaptations beyond reasonable adjustments. Access to Work can support your business to hire disabled people with the skills you need, retain an employee who develops a disability or long term condition (keeping their valuable skills and saving both time and money recruiting a replacement) and show that you value and will support your employees by having good employment policies and practices

Employers can also get support with the extra costs of working they may have because of their disability or long term health condition, for example, aid and equipment in the workplace, adapting equipment to make it easier for them to use, money towards any extra travel costs to and from work if they can’t use available public transport, money towards any extra travel costs for travel costs within work, an interpreter or other support at a job interview where there are difficulties in communicating , a wide variety of support workers, the Access to Work Mental Health Support Service and other practical help at work, such as a job coach or a sign language interpreter

The theme of the day this year is Building Back Better: toward a disability-inclusive, accessible and sustainable post COVID-19 World. We all know how significantly the pandemic has affected our lives including our working lives, with the toll on mental health being one of the most profound consequences.  More than one in five working disabled people cite a mental health condition as the main cause of their disability, consisting of 17.6% with depression, bad nerves or anxiety and 3.9% having mental illness or other nervous disorders. Depression, bad nerves or anxiety are the most common type of impairments. If your employee has a mental health condition, they can be offered assistance to develop a support plan. This may include steps to support them remaining in or returning to work and suggestions for reasonable adjustments in the workplace.

A person is considered to have a disability if they have a self-reported long-standing illness, condition or impairment, which causes difficulty with day-to-day activities. This definition is consistent with the Equality Act 2010 and the GSS harmonised definition. Examples of assistance to develop a support plan include flexible working patterns to accommodate changes in mood and impact of medication, providing a mentor to give additional support at work,  arranging additional time to complete certain tasks, providing additional training, regular meetings between you and your employee to talk about their concerns or a  phased return to work, such as reduced hours or less days Access to Work does not provide the support itself, but provides a grant to reimburse the agreed cost of the support that is needed.

If you would like support around any of the issues raised in this blog or if a sound boarding session about any HR or employment law issue could help don’t hesitate to reach out to our team for a free consultation or contact us at legal@lexleyton.co.uk 

https://www.gov.uk/government/collections/disability-confident-campaign

https://www.gov.uk/access-to-work

https://www.ons.gov.uk/peoplepopulationandcommunity/healthandsocialcare/disability/bulletins/disabilityandemploymentuk/2019

https://www.dlf.org.uk/content/about-us

https://www.equalityhumanrights.com/en/multipage-guide/are-disabled-people-disadvantage

Finding out that a job applicant has a criminal record can often be a fatal blow to the decision to hire somebody. Inevitably, having a criminal record carries with it a stigma and, as the charity Unlock states “it’s a sad irony that a criminal record only becomes a problem when someone decides to get on in life; a criminal record check is not required to sell drugs or join a gang, but it is to get a job or go to university.”

There are rules around when criminal records checks should be undertaken and what employers can do if and when they find out an applicant has a criminal record. In practice, however, it often forms part of the standard application procedure, with candidates assuming that they have to provide the information asked for, whether that is through self-disclosure or agreeing to have a DBS (Disclosure and Barring Service) check carried out.

Employers should be aware of two recent updates on undertaking criminal records checks and how this might impact on their practices.

Updated guidance from the ICO

Earlier this month the Information Commissioner published new guidance on the processing of criminal offence data, from a data privacy perspective. The guidance outlines that special conditions apply for criminal offence data, not only because it may be regarded as sensitive, but because use of this data could create significant risks to the individual's fundamental rights and freedoms. The focus of the guidance is on data controllers ensuring that they have a legal basis for processing data that is applicable to their specific circumstances, and that the processing they carry out is reasonable and proportionate given their specific situation.

As we have often cautioned since the implementation of the GDPR, relying on consent as a lawful basis to process data has its limitations. From a recruitment perspective, as in this context, it can be difficult to show that consent was freely given. The ICO reiterates that the fact that consent is required for a DBS check does not mean that that consent will be a valid lawful basis for data privacy purposes.

The guidance reminds employers that they will likely need an appropriate policy in place where they process criminal data, and that they may need to carry out a data protection impact assessment where their processing is ‘high risk’.

New DBS filtering rules

New rules coming which came into effect on 28 November 2020 will have an impact on the information that will be disclosed as part of a standard or enhanced DBS check:

• there will no longer be a requirement for youth cautions, reprimands and warnings to be automatically disclosed; and
• the multiple conviction rule has been removed, meaning that if an individual has more than one conviction, regardless of offence type or time passed, each conviction will be considered against the rules individually, rather than being automatically disclosed. 

The changes have come about following a legal challenge in 2019 where the Supreme Court found that the DBS ‘filtering’ system – the process by which the DBS decides what offences should be disclosed and designed to filter out old and minor criminal offences from disclosure - didn’t go far enough and was disproportionate.

The problem with the old filtering system was that it didn’t take account of what might have been a stupid mistake in youth as there was no discretion over age or seriousness of the offence; a criminal record can dog someone’s life for decades due to the stigma attached. In relation to the multiple conviction rule, it didn’t take account of the fact that, in many cases, it was inevitable that someone had more than one conviction. For example, stealing a car is likely to mean that a person is charged with both theft and driving without insurance.

What should employers be doing?

• If you process criminal data about candidates or employees, make sure you have an appropriate policy in place which sets out what information you will collect and what you will do with it. Ideally your policy document will demonstrate that carrying out these checks is not a barrier to employment, rather that you are just trying to take proper steps in your recruitment processes;
• Consider whether you need to carry out a data protection impact assessment. The ICO says this is likely to be needed if you plan to process criminal offence data on a large scale, or to determine access to a product, service, opportunity or benefit. If in doubt, we recommend you carry out a DPIA;
• Read the new DBS guidance– it includes suggested wording for inclusion in application forms where you ask candidates to self-disclose and a disclaimer to candidates reminding them of what they are (and aren’t) obliged to disclose;
• Think about your recruitment process – you should only ask an individual to provide details of convictions and cautions that you are legally entitled to know about, so think carefully about whether you genuinely need to know whether someone has a criminal record in relation to the role you are recruiting for;
• If you do carry out a criminal records check on a candidate, consider allowing that individual to give context to the offence disclosed, rather than just simply writing off the candidate. You could also carry out a risk assessment to identify whether the information disclosed is likely to pose a risk and whether you can mitigate that risk.
• Speak to us if you need help navigating the new guidance – we can help you create the right policies and procedures to ensure that you don’t fall foul of the rules.

If a chat about any of the issues raised here would be helpful or if you would like to soundboard any HR or employment law issue don’t hesitate to reach out to our team for a free consultation or contact us at legal@lexleyton.co.uk

The Equal Pay Information and Claims Bill 2019-2021 (EPIC Bill) was launched by MP Stella Creasy on 20 October 2020.  It seeks to increase transparency in the field of equal pay and expands pay reporting obligations under the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017.

The EPIC bill is thought to be long overdue by various organisation and governmental bodies, who are concerned that the current pay gap reporting obligations are not broad enough to cover all of the discrepancies in pay between individuals.

What would this bill change?

• (1) Staff would get the right to know what colleagues are paid

New data published by The Fawcett Society, shows that only 31% of working women believe they would be informed if their male colleagues earned more for the same work. It is this lack of transparency and culture of secrecy that the bill wishes to put an end to in order to prevent discrimination and inequalities.

• (2) It would expend the gender pay gap reporting for all organisation with more than 100 employees instead of 250

This decision was made following the Office of National Statistics’ report showing that currently the gender pay gap amongst organisations with between 10 and 249 employees is higher than those with 250 or more employees.

• (3) It would Introduce an ethnicity pay reporting for organisations with over 100 employees

Although ethnicity pay reporting has been on the Government’s “to do” list for some time, it has not yet found its way into law.  Many are hopeful that such a change could be a first step in the right direction and open the door to even broader pay gap reporting. For example, according to TUC analysis of official statistics, disabled workers earn 15% less than other staff and a disability pay gap reporting could potentially help raise awareness to this issue and proactively fix it.

What would it mean for my business if EPIC comes into force?

If you are an employer with 100 or more employees, it is expected that, from the enactment of the bill, you would only have around to 12 months to publish your company’s pay gaps (gender and ethnic). These results will need to be published on employers own website and a government site. Hence, they will become publicly available, including to customers, employees and candidates.

As a result, employers might wish to proactively review and calculate their pay gaps and look at what the commercial and cultural impacts will be of eliminating those gaps. Depending on the results, your business might even need to consider taking new or faster actions to reduce or eliminate any gaps (which could impact on your recruitment, people management and commercial strategies) given the strength of cross-party backing to the EPIC bill and the probability that it will become law.

If and when it does, EPIC will certainly have an impact given a survey from the CIPD and recruitment outsourcing provider Omni, which found that less than a quarter of UK employers go beyond basic legislative requirements on diversity when it comes to recruitment and selection of senior level roles, which clearly shows that without such new legislation, change is unlikely to come on its own.

However we must all keep in mind that, while reporting can help, transparency alone will not close pay gaps. Government and employers need to address the structural difficulties which prevent all employees to be treated and paid the same.

LexLeyton can help businesses to create strategies for developing and maintaining the right policies to benefit culture and sustainable growth. Contact us for a free consultation on of the issues raised in this blog or anything HR and employment law related at https://lexleyton.co.uk/free-consultation/ to discuss how we can help.