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
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 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.
At the beginning
of November the Chancellor announced at the beginning of November that the
Coronavirus Job Retention (Furlough) Scheme (CJRS) would be extended across the
UK until 31 March 2021. Guidance about how the scheme would operate during this
extension has now been published along with a fourth Treasury
Direction. While the CJRS remains very
similar to the scheme that has been in place for many months, there are some
important changes for employers to be aware of
Employees
on notice:
Government guidance suggests
that employers can still claim for employees who are serving a notice period on
furlough during November 2020. However, from 1st December 2020 it will
not be possible for employers to make a claim for a furlough grant in respect
of any days on which an employee is on a notice period. This applies no matter the reason for the
notice period, so will apply equally to those employees who have resigned as to
those who have been made redundant. It
would be prudent to factor this potential cost in to any redundancy plans.
Maximum
numbers of furloughed employees:
Prior to November 2020, employers were limited in the number of
employees for whom they could claim furlough support. However, this limit has now been removed,
potentially making the CJRS a more useful tool for businesses than it had been
over the past few months.
Employees
returning from Maternity Leave:
Under earlier versions of the
guidance employees returning from
Maternity Leavewere required to
give eight weeks’ notice of their return before they could return to work
and be placed on furlough. This has now been amended by the Government,
allowing employees and employers to agree a shorter period of notice.
Submissions
of claims:
As previously, claims must be
made through the Government’s online portal.
However, the time limits for
making claims online have been amended.
October claim periods must be submitted by 30th November,
while claims for November, December and January must be made by 14th December,
14th January and 15th February respectively.
Amending
claims:
The
dates for amending claims have also been amended. For claims made in respect of November claim
periods, any amendments must be made by 29th December 2020, for
December claim periods any amendments must be made by 28th January
2021 and for any January claim periods amendments must be made by 1st
March 2021.
Publication
of employer details:
From
December 2020, HMRC will publish the names and company numbers of all employers
who make claims for support from the CJRS.
They will also publish the amount of support given to each
employer. This is a condition of receiving the financial support
available and the information is likely to be published on the Government’s
website. The only exception is where an
employer can show that the publication of these details would lead to a serious risk of violence or intimidation, which is
unlikely to be particularly common.
Job Retention Bonus:
The newest Treasury
Direction confirms that this has been withdrawn. It is expected that a replacement scheme will
be created in due course.
There are various online guidance documents which have been published by the Government in relation to the extended CJRS. Of all of these, we recommend consideration of the ‘step by step guide for employers’ – now on edition nine and available here.
This guide sets out clearly how to calculate and make a claim under the extended CJRS. If your business needs any support or you would like to discuss how any aspect of the CJRS impacts your business please don’t hesitate to reach out to our team for a free consultation on legal@lexleyton.co.uk or https://lexleyton.co.uk/free-consultation/
Where employers have received support
to which they were not entitled, HMRC must be notified of the overpayment. There are strict timelines in place for this
notification to be made; failure to do so is considered by HMRC to be a
‘failure to notify’.
As such, any overpayments received in
relation to support payments under the CJRS must be reported to HMRC at most 90
days after the date the employer received the amount that they were not
entitled to (or after the date on which the employer ceased to be entitled to
retain the amount paid). HMRC notes that
the overpayment may have occurred due to a change in the employer’s
circumstances or perhaps because the employer did not, within a reasonable
period of time, use the support grant to pay the costs it was intended to
reimburse.
Whatever the reason, employers
should be mindful of the consequences of a ‘failure to notify’. HMRC intend to charge penalties, the value of
which will be designed to reflect the seriousness of the failure. They will, for example, take in to account
whether the employer was deliberate in their failure to notify, whether they
also looked to conceal the overpayment or whether it was non-deliberate. They will also consider whether any
notification made was ‘unprompted’ or ‘prompted’ – these essentially related to
whether or not HMRC had commenced an investigation at the time of the
notification. Penalties can be reduced
for employers who work with HMRC in their investigations, known as ‘telling,
helping and giving.’
The penalty ranges are as follows:
Type of behaviour
Unprompted or prompted disclosure
Penalty range
Non-deliberate
Unprompted - within 12 months of tax being due
0% to 30%
Non-deliberate
Unprompted - 12 months or more after tax was due
10% to 30%
Non-deliberate
Prompted - within 12 months of tax being due
10% to 30%
Non-deliberate
Prompted - 12 months or more after tax was due
20% to 30%
Deliberate
Unprompted
20% to 70%
Deliberate
Prompted
35% to 70%
Deliberate and concealed or treated as deliberate and concealed
Unprompted
30% to 100%
Deliberate and concealed or treated as deliberate and concealed
Prompted
50% to 100%
Remember – if HMRC are deliberately misled, whether through dishonest misrepresentations or the giving of false information, they intend to conduct criminal investigations with a view to prosecution.
For employers, we recommend that
claims are carefully vetted prior to submission. In addition, it is prudent to
also internally audit sums received for each claim. This audit should ensure
that the sums claimed are correct and properly paid to employees in full.
Today my son went off to school in his odd socks – one of the initiatives
of Anti-Bullying Week which is taking place this week – and we talked about
how, although people may look different, it is always important that we are
kind to everyone. Unfortunately, bullying isn’t always left behind in the
playground when we leave school, it can happen anywhere, not least in the
workplace.
There aren’t any laws against
bullying and there is no legal definition of what it constitutes either. ACAS
describes it as unwanted behaviour that leaves a person feeling intimidated,
degraded, humiliated and offended. It can be one of those things that, for the
person experiencing it, can be hard to define or each act by itself might seem
trivial. What it absolutely can do, however, is make for a pretty miserable
existence at work for affected employees, resulting in lost productivity,
absenteeism, high staff turnover, mental health issues for employees as well as
reputational damage for employers.
In today’s world where many of us
are now working from home, there may be some escape for employees who fear
having to deal with certain colleagues or managers who subject them to
bullying. However, employees are likely to be alone in their home working
environment and so the micro-managing, the snide comments or the unrealistic
deadlines have moved online but with no other colleagues around to witness the
behaviour or offer support. Employees are perhaps more likely to feel isolated whilst
working from home, with less opportunities to confide in colleagues (or in
managers if the bullying stems from a colleague). Also, with less face to face
interactions, there are more opportunities for words and actions to be
misinterpreted, perhaps even more so at a time where so many of us are feeling
the mental challenges of a second lockdown as the gloom of winter starts to set
in.
All employers have a duty of care
to protect their workers, so what can employers do to deal with bullying in the
workplace?
An Anti-Bullying Policy setting out the kind of
behaviour that a company will not tolerate is a key first step. It’s also
really important to have a clear process for how employees should raise concerns
about unwanted behaviour.
Ensure confidential lines of communication -
often bullies are in a position of authority over the their target, so ensuring
that there is a resource other than an immediate line manager to make
confidential reports to may help to foster a ‘speak up’ culture. This could be
through HR or there are platforms available, such as Work In Confidence, that
facilitate confidential disclosures.
Offering training for managers on how to deal
with these situations may also help to prevent and tackle conflict in the
workplace - a CIPD survey published earlier this year found that 34% of employers said one of the top barriers
to effective conflict management is that managers don’t have the confidence to
challenge inappropriate behaviour. Their researched showed that managers who
had received training could help to stop conflict from occurring and were much
better at fostering healthy relationships in their team. And when conflict did
occur, they could help to resolve the issue more quickly and effectively.
Consider
mediation between the complainant and the bully to try and restore the working
relationship.
Failing to give adequate
consideration to workplace bullying can have significant consequences for
employers. Despite there being no specific law against bullying, if the
bullying is linked to a protected characteristics of the employee then they
might be able to claim some form of discrimination or harassment. There could
also be civil claims if an employee can establish that they have suffered some
form of personal injury as a result of the bullying, or if they can establish
that there has been a breach of the Protection from Harassment Act 1997. If the
bullying is really serious then an employee may feel that they have no choice
but to resign, leaving the employer exposed to a potential constructive unfair
dismissal claim. And it’s not just in the courts and tribunals that an employer
could feel the financial consequences, failing to stamp out bullying is bad for
attraction and retention which will inevitably lead to recruitment costs. There
will also be costs lost in productivity and attendance, which are likely to be
impacted where an employee is suffering at the hands of a bully.
All employees are entitled to
work in a safe environment, and sustainable employers will ensure that they are fostering the right culture to
ensure that they can offer this, as well as adopting robust employment policies
to tackle any issues.
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 and to
discuss how we can help at legal@lexleyton.co.uk
Friday the 13th is commonly associated with bad luck and
a well-known Eighties’ horror movie of the same name. However, there’s a
positive spin to Friday the 13th this year as it coincides with World Kindness Day. It’s a good time to
focus on ways in which we can bring joy into the lives of others, particularly
at this grim time when the nation faces another coronavirus-related lockdown.
World Kindness Day urges individuals to carry out “random acts of kindness”.
In the employment arena, this can be turned into an opportunity for creating greater
respect in the workplace.
One positive act that is simple for any employee to do is to show
gratitude and appreciation to their colleagues. It can be as simple as sending an
email to a co-worker expressing thanks for some way in which they made your job
easier. Gratitude is a powerful way to create connection with co-workers and
strengthen relationships.
For employers, the aim should be to create a culture where all staff
feel comfortable and safe. Diversity, inclusion and equity are key to achieving
this goal. It means having a workplace filled with individuals from different
backgrounds in which everyone receives fair treatment and equal access to
opportunities. It’s also important that staff are aware of the type of conduct
that could be considered falls foul of these ideals or could be considered discriminatory.
Of course, having an Equal Opportunities policy that clearly sets
out appropriate behaviours in the workplace is a key tool in fostering
inclusion. Equally important is providing staff with regular training on
equality and diversity, and on related topics such as unconscious bias, are useful
in bringing the concept of inclusion and equity to life. The final step is
ensuring that the principles in the policy and training are put into practice
thereby creating a safe and positive environment for all staff.
For advice or training on the issues raised in this blog, or for help with preparing an Equal Opportunities policy, don’t hesitate to reach out to us at legal@lexleyton.co.uk
The Government has extended the Coronavirus Job Retention Scheme (CJRS)
until 31 March 2021.
This guidance applies for CJRS / furlough claims for the period starting
on or after 1 November 2020 and is intended to assist you in ensuring that you
can compliantly ensure that you can secure HMRC support for furloughed staff.
It is possible to furlough
employees with effect from 1 November 2020, even if a business was not able
to get a written agreement in place by that date.
An agreement may be reached with an employee to backdate furlough to 1 November 2020
provided that a retrospective agreement
is put in place by the end of Friday 13 November 2020.
This backdated agreement will be dependent on the employee genuinely having
been furloughed during this time. If the employee has actually been working all
of their usual hours, furlough cannot be backdated.
Flexible furlough continues to be an option, meaning employees can work
part-time and receive a furlough grant for their unworked hours. Employers will
pay the employee’s wages for the hours they work as normal and claim for the
furloughed hours, with reference to the employee’s normal working hours.
Employers seeking to use CJRS either to extend furlough for employees
already on the scheme or put new employees on furlough will need to get the
employees’ agreement. A new agreement would also be required for employers
looking to amend the existing furlough terms with their workers.
For Lexleyton
clients, your existing flexible furlough agreement is fine to continue using for any
employees who remained on furlough since 31 October 2020, as it is compliant
with the requirements set out in the HMRC Policy Paper, Factsheet and updated
online guidance (updated as at 11 November 2020), subject to the employee
meeting the eligibility criteria under the extended CJRS.
The existing Lexleyton template flexible furlough agreement would not
come to an end until the CJRS ended, an employer removed the employee from
furlough altogether, or the employment relationship ended (e.g. by reason of
redundancy). For those individuals, they simply remain furloughed on the same
terms. It is important to remain in regular communication with these staff as
well, to ensure they have good visibility around business plans, to support
their wellbeing and minimise any anxiety or complaints.
We consider that there are three routine scenarios where a new furlough agreement will require to be put in place with a worker and given retrospective effect to 1 November 2020.
The worker has been previously furloughed using a letter/agreement which was not provided by Lexleyton.
For employees already on the scheme, now would be a good time to pause and consider whether their agreement meets the eligibility criteria and legal requirements for retrospective effect. Employers can also consider whether it is best to extend furlough on existing terms or revisit and potentially tighten up arrangements. If choosing to tighten up or amend the existing furlough arrangements, please contact your Lexleyton solicitor for an up to date agreement.
The worker was advised, either verbally or in writing, that their furlough agreement was coming to an end.
Consistent with the terms of the previous wording, the previous furlough agreement will end if an employer advises the worker it is coming to an end. To then benefit from the retrospective effect of the extended CJRS, an employer would require to reach a new written agreement on or before Friday 13 November 2020.
The worker is being furloughed for the first time on or after 1 November 2020.
To then benefit from the retrospective effect of the extended CJRS, an employer would require to reach a new written agreement on or before Friday 13 November 2020. We recommend you contact us for an updated furlough agreement.
If one of these scenarios applies to your workers, or you are unsure, please contact your Lexleyton solicitor to discuss, without delay or reach out to our team at legal@lexleyton.co.uk
It has long been the case that a
business could not make a claim for assistance with statutory redundancy
payments until and unless they had entered into a formal insolvency
process. Where a business was insolvent,
most commonly when it entered into either voluntary or compulsory liquidation, employees
who had not yet received payments to which they were entitled by statute
(redundancy pay, notice pay and holiday) were entitled to submit a claim to the
Redundancy Payments Service (RPS).
However, a little bit of digging
has turned up a change in the rules which now provide for financial support to
businesses struggling to pay statutory redundancy payments to their workforce
and who are not formally insolvent.
This includes businesses that:
are still trading,
have stopped trading but have not gone formally
insolvent, or
will soon stop trading, but are not going
formally insolvent.
If approved, the RPS will make statutory redundancy
payments directly to the redundant employees on the employer’s behalf.
What the RPS can pay
RPS payments are subject to statutory limits, as detailed in Lexleyton’s Employment Key Figures 2020 Guide. The RPS cannot make any other types of payment such as arrears of pay, holiday pay, or notice pay unless the employer enters into a formal insolvency proceedings.
Eligibility Criteria
To be eligible for financial
assistance from the RPS, an employer must provide evidence that they cannot
afford to pay their employees statutory redundancy pay.
The RPS must also be satisfied that the former
employees are eligible for statutory redundancy pay.
How do businesses apply?
If you think your business qualifies for
assistance, you should email the RPS via: RPS.FA@insolvency.gov.uk
Repayment
If the RPS makes statutory redundancy payments on
behalf of a solvent employer, the RPS will then look to recover the cost of the
payments from the employer. If the employer fails to repay debt, enforcement
action may be taken.
If your business needs help around this issue contact us to discuss employer eligibility, benefits available and commercial considerations. Please don’t hesitate to contact us for a free initial consultation.
Amid the global pandemic that has taken over the world for the past months, Brexit appears to be suffering from political extinction. Yet, the leaving of the EU is imminent and employers should keep in mind that on 31st December 2020, EU staff will no longer have an automatic right to live and work in the UK.
•
They have an Indefinite
Leave to Enter or Remain in the UK
How should
employees choose between Settled Status or Pre-Settled Status:
Employees that
have continuously been in the UK for 5 years or more can apply for settled
status. They will have five
years’ continuous residence as long as they have been in the UK for at least
six months in any 12 months period for five years in a row.
Settled
status will entitle an employee to stay and work in the UK for as long as they
wish. However, it can be lost if an employee lives for more than five years in
a row outside of the UK.
Employees that
have been in the UK for less than 5 years can apply for pre-settled status.
Pre-settled
status will allow an employee to remain in the UK for a period of five years
from the date they are given pre-settled status. Upon expiry of that five year
period, they will be required to apply for settled status should they wish to
remain in the UK for longer. However, they do not have to wait until the end of
the five-year period and can apply for settled status as soon as they have
reached five years’ continuous residence.
An employee
with pre-settled status has the same rights as those with settled status but
cannot spend more than two years in a row outside of the UK in order to retain
their pre-settled status.
As an employer,
what should you do in respect of your existing EU staff?
Employers
are under no legal obligation to communicate the EU Settlement Scheme to staff.
However, for
employers that want to make sure that their employees are aware of the upcoming
changes, the Government has drafted a “EU
Settlement Scheme: employer toolkit” which includes different documents
that can be communicated to employees. In particular, there is a template
letter that employers can send to all of their EU staff.
When
communicating the toolkit, employers should be careful not to interpret
information on the EU Settlement Scheme or to provide immigration advice unless
they are qualified to do so.
Indeed, the
risk would be to give incorrect advice to employees that could cost them their
settled status and eventually, their right to work in the UK. In this scenario,
employee could raise a claim against their employers. If your staff asks you
for advice, do simply direct them to the official step by step Home Office Guidance
on the scheme where they can get all of the necessary information.
Until the
end of the transaction period, employers should be aware that there is absolutely
no requirement for their employee to inform them that they have applied or the
outcome of their application, employers should not check. Moreover, employers
should never make an offer of employment, or continued employment, dependent on
an individual having made an application. Doing so could open the door to a
discrimination claim.
Everything changes from 1 July 2021:
employers will no longer be able to accept an EEA or Swiss passport alone as
evidence of a permanent right to work in the UK for new employees. However,
employers will not be required to make any retrospective checks for existing employees.
Your future and
prospective EU staff
If a
prospective employee comes to the UK after the end of Brexit’s “transition
period” on 31st December
2020, they will not fall under the
Withdrawal Agreement.
Therefore,
from January 1st if you wish to employ EU staff, as you would for most other nationalities in
the world, you will need to sponsor their work visa to come work in
the UK.
Sponsoring a
work visa is not a breeze:
Employers might need to obtain a Sponsor
Licence
First of
all, if you have never employed anyone needing a visa, you may now not be
permitted to do so by the Home Office. Your company will need to apply for a
Sponsor Licence. Different criteria will be taken into account for you to be
able to receive the licence, such as making sure that the business is a
well-run UK company and that it has never acted in dishonesty.
If you might
require hiring outside of the UK after the end of the transition period, we
would advise for you to consider applying for a Sponsor Licence ASAP as, in the
current times, it may take an average of 2 months to be granted one.
Each visa sponsoring can cost around £1,5K
Not only is
the sponsor system bureaucratic and time consuming but it is also very costly.
It quickly proves much cheaper to incentivise existing staff to stay with your
business than having to sponsor new candidate.
Due to
covid-19 and the terrible impact it has had on the economy, we are currently
seeing massive redundancies and spike in unemployment. However, in deciding
whether you should reduce your workforce, employers should keep in mind the
cost of re-employing if their staff currently consist of largely EU citizens.
We would advise
employers to set up a Brexit Team
which would be in charge of researching its general impact on the company,
including how it will affect its workforce. They should produce a good audit of
your current workforce in order to understand the proportion of EU staff, consider whether the typical vacancies
arising in your business will qualify under the new requirements for job titles
that can be sponsored (see below), and what this might mean financially for the
company in the future.
Lastly, if
your company aims to hire what could presumably be EU staff at the start of the
next year, you might wish to consider starting recruiting now instead in order
to avoid any additional costs such as visas.
Only certain types of jobs can be
“sponsored”.
There will
be significant changes to the immigration rules from next year, however
similarly to what is currently in force, staff requiring a visa will need to
prove their ability to speak English.
The visa
system will still be based on points, and future employees will need to get at
least 70 to be eligible. Not all jobs can be sponsored, employers will only be
able to sponsor jobs for individuals with the appropriate skill level (RQF 3
level) and which are paid a minimum salary of around 25K per year.
The criteria
needed to enable an EU candidate to work for your company raise many different
issues, a key one being that the skills requirements for sponsorship may be
very far from your current EU workforce job duties raising a skills gap risk
impacting on your workforce recruitment and retention strategies.
In one of
its recent policies, the government stated: “We need to shift the focus of our economy away from reliance on cheap
labour from Europe and instead concentrate on investment in technology and
automation. Employers will need to adjust”. This will likely at least in
the short term and COVID19 aside, prove very problematic for industries such as
hospitality or construction, who rely heavily on EU employees.
Register here to join our free webinar on 24th November at 11am for clarity on:
The right to work after the transition period
What your EU workforce in the UK need to apply
for to be able to work
What Brexit may mean for existing UK employment
law
Which new laws can be expected to change
employment practices in 2021.
On 5 November 2020, the
Chancellor, Rishi Sunak, announced that the Coronavirus Job Retention Scheme
(also known as the furlough scheme) will remain open until 31 March 2021. For
claim periods running to January 2021, employees will receive 80% of their
usual salary for hours not worked, up to a maximum of £2,500 per month, hence
the scheme is more generous than the scheme running in September and October.
The percentage may be reviewed for February and March.
Full guidance is due to be published next week, on 10 November 2020. From the HMRC
Policy Paper,
here is a summary of what we know so far:
employers can claim even if they, or the relevant employees, had not previously used the CJRS.
the furlough will continue to be flexible, i.e. employees can continue to do some work.
employees who have previously been furloughed continue to have their reference pay and hours based on the existing furlough calculations (as under the old scheme). Employees who have not previously been furloughed will have a different pay/hours reference period. Full guidance will be provided on 10 November, but broadly the pay is based on 80% of the wages payable in the last pay period ending on or before 30 October 2020 (for those on fixed wages), or 80% of the average payable between the start date of their employment or 6 April 2020 (whichever is later) and the day before their CJRS extension furlough periods begins (for those on variable wages).
employees can be furloughed if they are shielding in line with public health guidance (or need to stay at home with someone who is shielding). That does not, of course, mean they have to be furloughed.
employees that were employed and on the payroll on 23 September 2020 who were made redundant or stopped working for their employer after that date can be re-employed and claimed for.
the Job Support Scheme and the Job Retention Bonus have been put on hold (for now).
This news will
come as a major relief to the UK’s employers, and the extension of the scheme
until at least March shows a welcome long-term commitment to supporting
businesses through this phase of the crisis. It will give business leaders the
financial assurance and time they need to plan and weigh up their options as
they look beyond this lockdown with a view to reopening, in some capacity, for
the festive period. As a result of the announcement, the planned Job Support
Scheme will essentially be replaced by the extended furlough scheme for the
time being.
Now that businesses have this commitment from the
Chancellor, a period of stability is sorely needed. UK companies have been
through a turbulent period and government support has at times been changed at
the last minute and announced without sufficient information for businesses. We
need to see a Treasury Direction – ideally this week – to enshrine the new plan
and give employers the information they need. From here, businesses should have
a solid foothold to firm up their plans for the remainder of the year and
looking ahead to 2021.
Last month saw a huge amount of
activity with the planned end to the furlough scheme and the introduction of
the new Job Support Scheme to follow from November. Originally aimed at
businesses with reduced demand over the winter due to Covid, plans were made to
extend the JSS to cover businesses who were required to close due to the 3 tier
restrictions.
All this planning was for nothing
in the end. It was overridden on Halloween when the Prime Minister announced a
new month-long national lockdown where non-essential shops, restaurants and
pubs must close. The furlough scheme is now being extended into November whilst
the lockdown is in place. Michael Gove indicated on the Andrew Marr show that
the lockdown could extend beyond November. Everyone will be watching this space
to see what effect the lockdown has on the spread of the virus.
Before the announcement, and
following leaks about the government’s plans, business leaders said another
national lockdown would be devastating. Mike Cherry, Chair of the Federation of
Small Businesses, said another lockdown would be ‘incredibly frustrating’ after
small businesses had spent thousands in making their sites Covid-secure. It is
an incredibly tough time for all employers and the situation is fast moving.
Keep up to date with both the rules and support at www.gov.uk,
or contact us for immediate and targeted help. More detail on the points for
employers to consider in the light of the furlough scheme extension can be
found here https://lexleyton.co.uk/coronavirus-job-retention-scheme-and-back-to-furlough-what-does-it-all-mean-for-your-business/
Data Protection
Anyone can make a subject access
request (SAR) from an organisation to ask whether and how the business is
processing their personal information. In the employment sphere, SARs can also
be used as a missile by an otherwise dissatisfied employee, often in
preparation for bringing a grievance or an employment tribunal claim. SARs can
be time consuming to deal with and, with fines of up to 20 million euro or 4
per cent of annual turnover for getting it wrong, expensive to mess up.
Last month, the Information
Commissioner’s Office published detailed new guidance to help businesses deal
with SARs effectively and efficiently. The guidance deals with three key
points:
stopping the clock when clarification is needed
– this is possible if clarification of the request is genuinely required and
the organisation processes a lot of information about that employee.
what is a ‘manifestly excessive’ request – one
you may not have to comply with.
charging fees (i.e. for the cost of staff time,
printing, postage etc) for excessive or unfounded (which can include repeat)
requests.
All this is good news to
businesses who are already juggling many more important balls due to the
Covid-19 pandemic. The ICO is also creating a simplified SAR guide for small
businesses which picks out the most important points from the detailed
guidance. Find the Rights of Access guidance and other helpful materials at www.ico.org.uk.
Indirect discrimination
Indirect discrimination occurs
when a policy or practice is applied to all employees but negatively impacts on
a group sharing a protected characteristic such as age, race or sex etc. To
prove indirect discrimination, the employee must show that the policy or
practice puts a particular group at a disadvantage and puts them
personally at that disadvantage. The employer must then justify the policy as a
proportionate way of achieving a legitimate business aim. The Employment Appeal
Tribunal (EAT) has looked recently at what an employee must do to show
disadvantage in Ryan v South West Ambulance Services.
The employee was a manager and
was 66 or 67 years old. The employer operated a Talent Pool to identify future
leaders and maintain existing leaders. The pool was used to fill some vacancies
quickly without wider advertising. Employees could go in the Talent Pool if
they exceeded expectations in appraisals, via an appeal if their grading was
lower, or by self-nomination. The employee’s appraisal said she met
expectations and she did not appeal or self-nominate for entry to the pool. The
employee applied for a managerial role which was advertised in the Talent Pool
but was told she couldn’t apply for it. She brought an indirect discrimination
claim, saying employees aged 55 and over were underrepresented in the pool (the
group disadvantage) and she was unable to apply for the roles because she
wasn’t in the pool (the individual disadvantage). The employment tribunal found
that a policy of promotion only via the Talent Pool did have a negative impact
on employees aged 55 and over. The over 55s had a 1 in 73 chance of being in
the pool rather than a 1 in 34 chance for employees under 55. But the
employee’s personal disadvantage – her inability to apply for the roles -
wasn’t because of the policy but because she had failed to take any steps to
enter the Talent Pool. As a result, there was no causal link between the policy
and her individual disadvantage.
The EAT disagreed. The group and
individual disadvantages need to match up and they didn’t in this case. This
meant the tribunal had got it wrong. The employer applied a policy – recruiting
from the Talent Pool – which limited recruitment to senior roles. Although
there were legitimate reasons for this, it disadvantaged a group of older
employees – those over 55. It disadvantaged the employee. She was affected by
the policy because she couldn’t apply for the promotional roles. The employer
did not adduce any evidence to show why the discriminatory effect of the rule
wasn’t relevant in her case. Ironically, to succeed in this argument, the
employer would need to show that it was likely she would have been put in the
Talent Pool had she appealed her appraisal or self-nominated. They did not do
this. Indirect discrimination was made out (subject to justification). The EAT
also said the tribunal was wrong to say the policy was justified because they had
not looked properly at its discriminatory effect and any lesser measures which
could have been taken instead.
The lesson for employers in this
case is to analyse and monitor the discriminatory effect of any policies. If
one or more groups are negatively impacted, consider what steps you can take to
remove or lessen the disadvantage. In this case, a less impacting policy might
have been to allow Talent Pool members to go head to head with other employees
for promotional jobs. Another important point for employers is about the group
and personal disadvantage corresponding in indirect discrimination cases.
Without getting the technicalities right at the outset, any tribunal reasoning
was bound to be flawed.
Vicarious liability
Employers must make sure that the
workplace is safe for employees. Businesses can be held responsible for the acts
or omissions of their employees which take place ‘during the course of
employment’. In Chell v Tarmac Cement and Lime, the High Court has
looked at whether an employer should be vicariously liable for an employee’s
practical joke which seriously injured a contractor.
Both employees and contractors worked
as fitters at one of Tarmac’s sites. There were tensions between the two groups
because the Tarmac fitters felt their jobs were threatened by the contractors. The
claimant contractor had raised these rising tensions with his own employer and
Tarmac. A few weeks later, a Tarmac fitter deliberately exploded two ‘pellet
targets’ close to the claimant’s ear as a practical joke. It left him with a
perforated eardrum, hearing loss and tinnitus. Tarmac dismissed the practical joker,
but the contractor brought a claim for negligence against Tarmac. He also
claimed that Tarmac was vicariously liable for the practical joker’s actions. The
County Court said there was insufficient connection between the practical joke and
the duties of the employee as a fitter. Although there were known tensions
between contractors and employees, the connection between the employment
relationship and the prank was not sufficiently close. The tension had made the
contractor feel uncomfortable but not threatened. The judge said it might have
been different had the tension been so serious that it suggested physical
violence or confrontation – it would have created a risk for the employer to
address. The Court also found that the employer was not responsible directly –
the risk of injury from a deliberate act was not foreseeable so there was no
duty to take any steps to avoid the risk. The employer’s health and safety
policies were extensive and warned against reckless misuse of equipment. That
was enough. The contractor appealed.
The High Court agreed with the
County Court and applied Morrisons v Various Claimants ( a case where
the Supreme Court overturned previous courts’ decisions and said that Morrisons
was not responsible for an employee’s deliberate act of stealing and publishing
employee data). The High Court agreed that Tarmac had extensive health and
safety policies in place to create a safe system of work in a potentially
dangerous field. Including terms on horseplay or practical jokes would be too
much to expect of an employer. The terms of the policy about the misuse of
equipment was sufficient.
In this case, the court didn’t
believe the contractor’s evidence that he asked to be removed from site due to
the tension. This meant that he had overegged the true level of his concerns
about workplace tension. This in turn meant that the level of concern he
communicated to Tarmac was similarly lower. The situation might be different
where an employer is aware of workplace tensions and the risk of violence
becomes foreseeable. As always, employers must ensure that any employee safety
concerns are dealt with appropriately.
Religion and belief
An individual is protected from
discrimination based on their religion or belief. A philosophical belief can be
protected if: it is genuinely held; it is a belief not just an opinion; it involves
a weighty aspect of human life and behaviour; it attains a certain level of
cogency/importance and it is worthy of respect in a democratic society. In Mackareth
v DWP and Forstater v Centre for Global Development, two employment
tribunals found that individuals who believe that people cannot be transgender (because
god only creates men and women) are not protected by the Equality Act 2010.
The employees’ beliefs, which included a refusal to refer to trans people by
their chosen pronouns, were incompatible with human dignity, conflicted with
the rights of others and were not worthy of respect in a democratic society. But
employment tribunal decisions are not binding and another employment tribunal
in Bristol has recently refused to follow suit in Higgs v Farmor’s School.
The employee was employed as a
pastoral administrator and work experience manager. Someone outside the school
complained about comments posted on her Facebook page which they said were
transphobic and prejudiced against the LGBT community. The employee’s Facebook
page was private but included parents at the school. One post invited people to
sign a petition to stop schools teaching about same sex relationships and
gender being a matter of choice. The employee had also reposted articles by
other people on these issues which might have been relevant for several
children in the school.
The employee was dismissed for
gross misconduct for behaviour which contravened the school’s conduct policy
including discrimination and serious inappropriate use of social media. She
claimed she had been directly discriminated against and harassed on the grounds
of her beliefs. Those beliefs included a lack of belief in gender fluidity and
a lack of belief that someone could change their biological sex or gender (as
well as others, including ones relating to same sex marriage). The employment
tribunal found that her beliefs were protected under the Equality Act 2010.
She had rights under the ECHR to respect for private and family life, freedom
of religion and freedom of expression. If those rights only applied to beliefs
that upset no one then they would be worthless. However, they said she had not
been discriminated against because of those beliefs. Her Facebook posts could
not have had any expectation of privacy when her ‘friends’ included parents and
screenshots could easily be taken and disseminated. In relation to direct discrimination,
the school had reasonably considered that people reading her posts might think
she was both homophobic and transphobic. This could negatively impact on
parents, pupils and the community. The tribunal found that she was dismissed
because her Facebook posts might indicate that she held unacceptable views
about gay and trans people – beliefs which could not qualify for protection
under the EA – rather than her actual beliefs about teaching gender fluidity in
schools. She had not been harassed either. The disciplinary process was
unwanted conduct, but it was related to the realistic perception that she was
homophobic and transphobic rather than the expression of her beliefs. It did
not have the purpose or effect of violating her dignity and didn’t create an
intimidating or hostile environment.
The tribunal in this case tried
to distinguish the facts of this case from Mackareth and Forstater.
In Mackereth the employee was a doctor, in Forstater the employee
was a visiting fellow at the Centre for Global Development. The tribunal said
the employees’ beliefs in the two other cases might have resulted in discrimination
against members of the trans community. But in Higgs there were LGBT
pupils at the school and the employee had direct contact with children so it’s
difficult to see how the situation is different. We understand that all these
cases are being appealed, which will hopefully result in future appellate
guidance. This will be welcomed by employers who try to find the tricky balance
between the rights of the LGBT and trans communities and the rights of those
with conflicting beliefs.
Unfair dismissal
A constructive dismissal can
arise where an employer breaches the implied term of trust and confidence
between employer and employee. The employee can then accept the breach and
resign, saying they were pushed. The EAT has looked recently at what constitutes
acceptance of a breach and whether a simple failure to return to work following
maternity leave is enough to communicate acceptance of a repudiatory breach of
contract.
The facts of Chemcem v Ure
are a little unusual. The employee was the daughter of the majority shareholder
of the business. The employee’s father had left the employee’s mother and had
formed a relationship with a colleague. Family relationships became strained
and the employer made things difficult for the employee by varying her pay arrangements
without warning, switching her employment to the payroll of another company
which was about to become insolvent, failing to pay her maternity pay on time
and not only failing to answer her queries but deliberately misleading her. The
employee didn’t return to work after maternity leave and brought a constructive
dismissal claim. The employer said that her failure to return to work was not
enough to communicate her acceptance of any breach of contract, so her claim
should fail.
The employment tribunal found
that there had been a course of conduct whilst the employee was on maternity leave.
The employment tribunal said that her employer (via her father) was hostile
towards her and her continued employment which had breached the implied term of mutual trust and
confidence. Her failure to return to work was sufficient to accept the breach
and bring her employment to an end. The EAT
agreed. In this case, on its unusual facts, the employee’s failure to return to
work was enough to communicate acceptance of the breach. The tribunal had found that the employee’s
father did not want her to return to work because she would be managing his new
partner. When she didn’t return to work, no one even asked where she was. The employee
did not need to say any more – the employer was clearly hoping and perhaps even
expecting her not to return.
This case is unusual. It involves
a family run business with its dirty laundry being hung out on the shop floor. A
failure to show up for work won’t often be enough to communicate acceptance of
a breach of contract. There are learning points to take away though, especially
for family run businesses. It is within these close-knit environments that the
letter of the law and the finer detail of company policy often goes awry. It is
exactly because of these close relationships that particular care must be taken
to formalise the employment relationship, and any issues that arise within it,
however close or informal the relationships
outside the office.
Whistleblowing
Like many employment claims, a
claim for whistleblowing detriment under section 47B of the Employment
Rights Act 1996 must be brought within three months of the act or failure
to act which the employee is complaining about. Where an act extends over a
period, the date of the act is treated as the last day of that period. It’s all
about the act and when that happened, rather than the consequences of the act. A
continuing detriment is not the same thing as a continuing act.
In Ikejiaku v British
Institute of Technology, the employee was a senior lecturer. He brought two
detriment claims based on protected disclosures he had made during his
employment. He made the first disclosure a year before he was dismissed, when
he blew the whistle to HMRC about suspected tax evasion by his employer. After
that, the employer made detrimental changes to his employment contract. The day
before he was dismissed, the employee had blown the whistle on his manager who
had told him to pass students who had been copying. An employment tribunal
found that he had been automatically unfairly dismissed because of the
protected disclosure made the day before his dismissal. However, the contract
imposition the year before was a one-off act, albeit with continuing
consequences, and so the time limit for bringing that claim had started ticking
a year earlier and was now out of time. It was not an act which extended over a
period just because the new contract continued to be in place. The tribunal
also found that there should be no ACAS uplift for the employer’s failure to
follow the ACAS code because it didn’t apply to protected disclosure
dismissals. The employee appealed.
The EAT agreed with the tribunal
that the contract change detriment claim was out of time. Time starts to run
from the act, not the continuing detriment that an employee may suffer because
of the act. A continuing act might typically be a policy or rule, but that was
not the case here. It wasn’t an act extending over a period either. The
contract change was a simple one-off act. However, the EAT allowed the appeal on
the ACAS code uplift. The ACAS code also applies to grievances raised by
employees. The employer accepted that the protected disclosure the day before the
employee’s dismissal was a grievance and so the matter was sent back to decide
whether an uplift applied on that basis.
One point for employers to take
away here is the applicability of the ACAS code even when the employee had not
mentioned the grievance part of it in his claim form. The EAT found that this
should have been considered by the tribunal regardless. It is also a comfort to
know that a one-off act such as a contract change will not open an employer up
to liability outside of the normal time limit for bringing a claim. As always
though, employers must take care when employees raise complaints that might be
protected disclosures. A knee jerk reaction can come back to bite you.
Vardags
Cardigans have been banned at
City law firm Vardags. In a leaked email from last year, the firm’s female
president emailed all staff to confirm that cardigans and other woollens were
not part of the Savile Row (for men) or Chanel/Dior/Armani (for women) look she
was keen for her staff to adopt. The cardigan ban caught the headlines, but
there are more problems with the email than a ban on comfy clothing.
The email has a single paragraph
dedicated to male employees, also banning woollens along with brown shoes and
super tight trousers. A decent suit and double cuffs are recommended. Nothing
unusual for a London law firm. Then follows eight paragraphs on female
grooming. Tailored jackets and formal dresses/suits are in, and women are
invited to look ‘discretely sexy and colourful and flamboyant at the same
time according to your preference’. The email goes on to stipulate natural
looking hair (which she insists must be brushed and squeaky clean), classic
nail colour, silk only scarves and sheer tights. In a paragraph aimed at men
and women, she suggests employees work out, not just for health but so they
‘look great’. She tells them to eat well, move a lot, watch what they drink,
get outside and ‘glow’. This all aimed at professional adults.
There are problems here. The
excessive instructions to female staff feel oppressive. Suggestions to wear
sheer tights – or any see through clothing – are likely to be discriminatory.
It feels wrong that men can just look Savile Row smart while women are asked to
find the sweet spot between ‘tacky or tarty’ and being ‘drab’. Why
the difference? And indicating that employees should lose weight is just plain insulting
– it infantilises grown adults and has no bearing on how these individuals can
do their jobs. It can also tip into discrimination if weight or fitness is
linked to a medical condition which satisfies the disability test.
There’s nothing wrong with having
a clear corporate image. Branding is good for marketing your service or product
and creating a feeling of unity in the workplace. But employers must be careful
not to stray into murky waters. Employers must guard against making anyone’s
appearance trump their workplace skills. Being smart should be more about
business brain than business attire.
Flexible working
A poll by Working Families has
collected data which shows that two thirds of employers have noticed an
increase in flexible working requests by their male employees. The poll included
a small sample of 26 UK employers who were asked how they managed the numerous
challenges posed by the global pandemic. Experts say the results show that the
increase in homeworking due to the pandemic may have reduced the stigma sometimes
associated with men requesting flexible work arrangements.
The poll also suggested that there
might be long term changes to working patterns which survive the end of the
pandemic. More employees are expected to work flexibly or remotely for at least
part of their working week. It was noted by employers that flexible working can
attract a wider range of employees to their business. Some employers said
office working would be a thing of the past now that remote and flexible working
patterns had been proven to work so well without any negative effect on
productivity or client service. 25 out of 26 employers said productivity had
been the same or better during lockdown. Some felt that the pandemic had simply
fast forwarded a move towards this kind of flexibility in the workplace.
Many employers are keen to hold
onto the silver linings that lockdown has produced long after the pandemic is
over. The pandemic continues to cause huge disruption and anxiety for employers
and employees alike. If the long-term consequence of the pandemic is a cultural
shift to a position where flexible working is normalised, without any impact on
results, that will be positive both for working parents and for business.
An employment tribunal has
awarded an employee £180,000 following its landmark judgment in September that
gender fluid and non-binary people are covered by the Equality Act 2010.
The judge said that gender is a spectrum, and it was beyond doubt that the
employee was protected under the protected characteristic of gender
reassignment. The employment tribunal decisions for the full hearing and the
subsequent remedy hearing in Taylor v Jaguar Land Rover are scant and
detailed written reasons will follow. However, the basic facts have appeared in
the news and make for difficult reading.
The employee was employed for
almost 20 years. She presented originally as male but in 2017 began identifying
as gender fluid/non-binary and started dressing predominantly in women’s
clothing. She was subject to abuse and ridicule by colleagues and had
difficulty accessing facilities. Management did not deal with her complaints
properly. The employment tribunal found that she had been harassed, directly
discriminated against and victimised and she was awarded £180,000 in
compensation. This included aggravated damages for both her treatment at work
and also the way she was cross examined in tribunal by the employer’s legal
team. The tribunal also made a statutory recommendation that the board of
directors read and absorb the written reasons for the tribunal judgment. The
employer also agreed to a range of other measures including the introduction of
a Diversity and Inclusion Champion. They also agreed to commission a report on
diversity and inclusion within the business by a recognised diversity body such
as Stonewall. A costs hearing will take place at a later date.
The written reasons explaining
the decision will not be published for at least another month. There will be
lessons for employers to take from it in terms of how they deal with gender
fluid employees and diversity more generally. As ever, it’s about having solid
policies, properly trained managers and a culture which celebrates diversity
rather than shies away from it. This case shows just how costly those failures
can be.
In an unexpected
development and as part of his announcement that there will be a new lockdown
in England between 5 November and 2 December, the Prime Minister confirmed late
on Saturday 31 October that the Coronavirus Job Retention Scheme (CJRS) will be
extended until December rather than closed on 31 October as originally planned.
The new Job Support Scheme (JSS) essentially comprises two separate schemes, the JSS Open and JSS Closed. These schemes were not set up to be mutually exclusive, although measures exist to prevent claims in respect of the same employees for the same days. The JSS was the government’s replacement wage support scheme, had been set to launch on 1 November, with the government publishing 11 detailed guidance notes on the evening of 30 October to help employers in administering the same. This scheme has now been postponed until the extended CJRS ends.
At the current time, we
only have brief details on how the
extended CJRS will work. Whilst the government has stated in its briefing note to MPs that additional
guidance will be provided shortly in the form of ‘lockdown legislation’ and a
Treasury Direction, many employers are going to need to take urgent and
immediate decisions in relation to their workforces.
We summarise below the
key aspects of the extended CJRS and answer some of the key questions employers
are likely to have.
Key points:
The CJRS will now remain open until December and
will not close, as originally planned, on 31 October. The exact end date is currently
unknown but it is perhaps likely to coincide with the proposed ending of the
new lockdown in England on 2 December. The government has confirmed that there
will be no gap in eligibility for support between the previously announced
end-date of the CJRS and this extension.
The introduction of the JSS (both the Open and
Closed schemes) will be postponed ‘until the CJRS ends.’ Crucially, this keeps the door open for a
further CJRS extension, which may happen if Westminster bow to pressure from
the devolved nations.
The level of grant under the extended CJRS will
mirror levels available to employers under the original CJRS in August. This
means that the government will pay up to 80 per cent of an employee’s normal
pay up to a cap of £2,500 and employers will be responsible only for National
Insurance Contributions and pension contributions. As with the original CJRS,
employers are still able to choose to top up employee wages above the scheme
grant at their own expense if they wish.
Given the previous scaling back of the CJRS (in
October the government contribution was limited to 60 per cent of normal pay)
and the acknowledged reduced level of support under both the JSS Open and
Closed, the extended CJRS is more generous to employers, particularly those
able to pivot quickly and communicate effectively with their staff in response
to the last minute switch from the JSS.
Importantly, to access the extended scheme, neither
the employer nor the employee needs to have previously used the CJRS. To be
eligible, employees merely need to have an up to date furlough agreement in
writing and have been on an employer’s PAYE payroll before midnight on 30
October (with a Real Time Information (RTI) submission notifying payment for
that employee to HMRC having been made on or before 30 October). This is a
significant change to the original CJRS, where the vast majority of employees
had to have been furloughed for a period of at least 3 consecutive weeks ending
on or before 30 June to enjoy continued access to the scheme through July to
the end of October.
The extended scheme allows employers to rehire
employees who have been made redundant and put them on furlough (as was the
case in certain circumstances under the original CJRS). However there are moral,
ethical and employment law implications to rehiring employees so employers
considering this should give this careful thought and seek advice from
Lexleyton.
Flexible furloughing will continue to be an option
in addition to full-time furloughing so employees will be able to work some of
their hours (and be paid for this by their employer) and receive furlough pay
for unworked hours. Calculations determining usual hours and worked hours will
broadly follow the same methodology as under the original CJRS.
The government expects that publicly funded
organisations will not use the extended scheme, as was the case for the
original CJRS, but partially publicly funded organisations may be eligible
where their private revenues have been disrupted. All other eligibility
requirements will continue to apply to these employers.
The extended CJRS will operate as the original CJRS
did, with businesses being paid upfront (as opposed to in arrears under the
JSS) to cover wage costs. The government has noted, however, that there will be
a short period where the legal terms of the extended scheme are changed and
systems updated in which businesses will be paid in arrears.
Points for employers to
consider
Most businesses will have been planning workforce
changes to dovetail with the original 31 October end date for the CJRS and the
introduction of the JSS from 1 November. These plans will need to be revised
given the extension of the CJRS and in most cases, urgent communications will
be required with employees. The nature of this communication will vary
depending on what plans and communications the employer had already put in
place.
Employers with staff still on furlough and/ or
flexible furlough may simply want to extend these existing furlough
arrangements through until December. Many existing furlough agreements will be
drafted to come to an end either on the expiry of the CJRS or on 31 October.
Given previous issues under the original CJRS as to how to obtain and document
employee agreement to CJRS terms, it would be sensible to get relevant
employees to return signed letters indicating their agreement to an extension
(or an appropriate collective agreement with any recognised trade union) or, at
least, to respond by email confirming their agreement to remain on furlough
until December on existing furlough terms. This will be easier if the extension
to furlough is on the same terms as up to 31 October. Any changes in furlough conditions must be
agreed in writing.
Employers who have topped up pay throughout any
previous furlough arrangements may want to extend furlough arrangements but may
need to scale back or remove the top up. In this instance, employee consent to
any such changes may be required, depending on the wording of the furlough
agreement – in which case employers should seek the employee’s consent to the
change urgently.
Some employers may have already put in place
appropriate JSS (Open) temporary working agreements with their employees to
commence on 1 November. In such cases, employers should now communicate with
their employees about the extension of the CJRS (and that the JSS has been
postponed) and, if appropriate, ask them to agree to be furloughed until
December instead. Any such communication could confirm any flexible furlough
arrangements that might be put in place (if there is some work you want the
employees to perform) and point out that the arrangements will be more generous
through November than they would have been under the JSS (subject to any top
that you may have planned to offer under the JSS). As per the above, employers
should seek, obtain and record employee agreement to this change (whether that
be in writing, through collective agreement or by email).
There may be other cases where employees have not
been on furlough and are not signed up to a JSS temporary working agreement.
This might be, for example, where an employee was precluded from being
furloughed between July to October as they had not been furloughed for 3
consecutive weeks by the end of June. If you are now considering furloughing
any such employees up until December, it will be important to enter into the
more detailed furlough agreement that you have used for other furloughed
employees.
It's not an easy time to own or operate a business. Managing people in times of crisis is a challenge which can be turned into opportunity. Book a free consultation with Lexleyton to find out how we can help.
World Menopause Day is held every year on the 18th of October, with its purpose being to raise awareness of the menopause, and the support options available to improve health and wellbeing.
So what is menopause?
It’s a natural part of ageing that usually occurs between 45 and 55 years of age.
All women will be affected differently, but the main symptoms are:
insomnia and night sweats
mood swings
feeling anxious and panic attacks
hot flushes
struggling to remember things, concentrate and
focus
irregular periods which can become heavier
aches and pains including muscle and joint
stiffness
urinary problems
headaches including migraines
How
will the menopause impact your employees?
With the population living longer (1
out of 3 British workers are over 50) and with more women working than ever
before, there is no doubt that the menopause will affect a considerable
amount of your employees.
The symptoms are varied and the impact of menopause
on staff will differ from one person to the next. Loss of sleep, for example,
can reduce an individual’s ability to concentrate and stay focused. Heavy
periods can be both very painful and can make moving around difficult and
stressful. Hot flushes will raise an individual’s temperature, and can induce
headaches and dizziness. Irritability and mood swings can be distressing and
could affect a female employees relationships with her colleagues as well as
impacting day to day work. Because sadly,
there is still such a stigma around the whole subject of menopause, employees
going through are not only very likely to do so in silence will be prone to
feeling embarrassed and isolated, with there being significant evidence of the
onset of menopause leading to the development or exacerbation of mental health
issues.
Suffering from the wide range of potential
menopause symptoms might mean that your female employees experiencing it are
forced to take sick leave more frequently. Indeed, it is estimated that 14 million working days
are lost to the menopause each year in the UK. If you do nothing to support
this issue in your workplace, those absences could prove costly to your
business. Given that very severe symptoms may render women incapable of working,
lack of proactivity around this issue could mean losing some of your best and
most experienced people and having to recruit and train new staff.
Do
you have any legal responsibilities toward staff going through the menopause?
The Health and Safety at Work Act 1974 requires
employers to ensure the health, safety and welfare of their employees by
conducting risk assessments which should include any specific risks to
menopausal women.
Even though menopause is not a protected
characteristic under the Equality Act 2010, judges
have found that women undergoing menopause could have a claim under sex and/or
age discrimination or even disability discrimination is some severe cases. To reduce risk to your business, aside from
doing what is right for your employees, it is vital that you ensure that your
employees are not being “less favourably
treated”, and in some cases, they might be entitled to reasonable
adjustments being made to accommodate their condition.
So how
can you better support employees going through menopause?
Pregnancy, its effect on women’s bodies and hormones are commonplace
topics in HR policy and equality legislation, but the same is unfortunately not
true of the menopause.
Breaking stigma around issues like the menopause
and mental health is the
only way to start conversations
which will allow people of all ages to achieve their true potential at work. A study
conducted by the former Business Champion Dr Rose Altmann (2015) showed that
67% of employees going through menopause did not want to share it with their
employers for fear that they would be seen as “too old to do the job”, and
because they felt that unconscious bias might result in their careers being
disadvantaged in some way. That is a very sad statistic, that your business
could and should think hard about doing something about.
Proactive steps can your business take:
Change your culture: train your managers and
colleagues on what menopause is and how it can affect staff.
Have a Menopause policy in your employee oHandbook
where you highlight your support for staff going through menopause.
Allow flexible working patterns and adequate rest
breaks for staff suffering from menopause.
Make sure staff going through menopause have easy
access to appropriate toilet facilities.
Give access to staff undergoing menopause to
ventilation and suitable uniforms.
If a free consultation around any of the issues raised here or about
any aspect of HR and employment law impacting your business would help, please
don’t hesitate to reach out to us at https://lexleyton.co.uk/free-consultation/
.
Lucy Herd lost her son Jack in a tragic accident in 2010. After her husband returned to work after only 3 days, Lucy spent the next ten years campaigning for a right for all parents to have the legal right to take time off when they lose a child.
A decade of campaigning and Lucy’s establishment of Jack’s
Rainbow charity to fight for change, finally led to success when in April 2020,
the UK government introduced the legal right to Parental Bereavement leave. It
means that those parents who lose a child aged under 18 or a baby after 24
weeks gestation, have a legal right to two weeks’ statutory leave.
This right is one that no employee ever wants to have to
access, but sadly the following statistics from the Child Bereavement Trust
show the extent of the tragedies that befall employees and colleagues every
day:
In 2017 in the UK*:
3200 babies were
stillborn – that’s around 9 babies every day
6,608 babies and children
under 5 died – that’s more than 18 every day
869 school aged children
(5-16 year-olds) died
7653 babies, children and
young people (under the age of 18) died – that’s 21 tragic losses, every single
day
*Source: Child Bereavement UK: Office for National
Statistics; National Records of Scotland; Northern Ireland Statistics and
Research Agency
It’s at the most challenging times that
employees face, empathetic and
considerate leaders, managers and companies reach out and enable support for
their workforce. Being proactive and upfront about what support you will
provide to an employee is not just good practice but also demonstrates that you
have considered the range of potential challenges that your employees may have
to face, including one of the most significant and terrible events that could
ever happen to a parent.
Taking a holistic approach to the development
and communication of your key employee wellbeing and support policies will
enable your business to develop a coherent and effective framework to help you
manage your support and response to employee personal challenges, and may assist
in reducing absence and increasing staff
retention – having worked in HR, I know that how you treat an employee during a
personal crisis can be the ‘glue’ that retains their loyalty to you as an employee,
irrespective of their pay or terms and conditions. No one knows how they will
react in such terrible circumstances but doing what you can to reduce an employee’s stress and anxiety about their absence from
and return to the workplace is not just the right thing to do for them as human
being, it is the right thing to do for your business.
A Parental Bereavement Leave Policy is quite
different to a Compassionate Leave Policy. Statutory Bereavement leave has two
aspects : a right to two weeks’ statutory leave for all employees and a right to two weeks
paid statutory leave if your employee has 26 weeks’ service and their pay meets
the lower earnings limit. The current statutory rates is statutory pay £151.20.
Having a Parental Bereavement Leave Policy in place so that everyone knows what to do and how you will support your employee is vital to make things as simple as possible for the employee and employer at such a stressful time and to avoid clumsy communications or decisions. A 2018 survey by Sands, consulting over 2,500 bereaved parents, found that only 1 in 5 parents had been offered or given any support by their employer on their return to work after the death of their baby. Without a Parental Bereavement Leave Policy to provide a necessary framework you might well get right should you be faced with having to support an employee at such an upsetting and challenging time, but having a clear policy is the best way to ensure will get it right from the start.
Whether you call it a second wave
or one continuous storm, Covid-19 is at the forefront of every employer’s mind
as we enter Autumn. Once again, the
government has said employees should work from home if they can, in stark
relief to the summer push to get them back in the office. More staff in sectors
such as retail and hospitality must now wear masks to stem the rise in infections.
Hospitality businesses, such as pubs and restaurants, must shut by 10pm. But
the big news for employers came via Rishi Sunak’s Job Support Scheme (JSS) as
part of his Winter Economy Plan. It is aimed at safeguarding viable jobs in those
sectors of the economy which will struggle over the winter months because of
the pandemic.
The JSS will run for 6 months
from 1 November 2020. Where the business remains open, an employee will need to
work at least a third (33 per cent) of their normal hours and the employer must
pay them for those hours. The remaining two thirds (or 66 per cent) of an
employee’s hours are then split again into 3: the government will pay for one
third of the remaining hours (22% of their overall contractual hours) and the
employer must pay for another third (22%). This means an employee will receive 77%
of pay. The government grant is based on the employee’s usual salary, but their
contribution will be capped at £697.92 per month. The employer will be
reimbursed in arrears for the government contribution.
Only small and medium businesses
can take part in this scheme (bigger businesses can take advantage only if their
turnover has fallen during the pandemic and the government does not expect them
to pay out dividends or similar capital distributions whilst using the JSS).
Any small or medium business can use the JSS even if they haven’t previously
used the furlough scheme.
However, if the business has been
closed down under national or local lockdown rules, a different scheme will
apply. In this situation, the government
will pay two thirds of the employees’ salaries, up to a maximum of £2,100 per
month. Employers will not be required to contribute towards wages and will only
be asked to cover NIC and pension contributions. To be eligible, the employees must be off
work for a minimum of seven consecutive days.
No doubt there will be more
guidance on the scheme in due course so keep an eye out for the finer detail. Whether
the current situation is a tiny ripple or a raging storm, this could be the
lifeline that some SMEs need to help them ride out this wave over the winter.
Unfair dismissal
For a dismissal to be fair, an
employer needs to have a potentially fair reason to dismiss – such as
misconduct, redundancy or ‘some other substantial reason’ (SOSR) - and the
decision to dismiss must be within the range of reasonable responses. In cases
where an employer’s reputation may be at risk, conduct and SOSR can overlap.
The Employment Appeal Tribunal has looked at this issue recently in K v L.
A teacher was charged with possessing
indecent images of children, but he denied being responsible for them. He was
suspended from work pending investigation. The Procurator Fiscal (the Scottish
equivalent of the CPS) decided not to prosecute. The police evidence provided
to the employer was redacted beyond use, so it wasn’t given to the disciplining
officer. The employer concluded that there wasn’t enough evidence to show the
employee was responsible for downloading the images. However, he was dismissed
for misconduct and the potential risk he posed to children. The dismissal
letter also cited the risk of reputational damage which hadn’t been part of the
hearing.
The employee claimed unfair
dismissal. He lost at the employment tribunal, but the Employment Appeal
Tribunal overturned that decision. The EAT said that dismissing for
reputational damage wasn’t fair because the employee had not been given an
opportunity to address those allegations at the disciplinary hearing. They also
said that the decision to dismiss on conduct grounds was flawed: an employer
must be satisfied on the balance of probabilities that the employee committed
the offence in question. The disciplining officer had said there wasn’t enough
evidence to make out misconduct, so the decision to dismiss on conduct grounds
was not reasonable. The EAT went on to look at whether the employee could have
been fairly dismissed for SOSR if the employer had pursued reputational damage
as the reason for dismissal. They referred to a previous case called Leach v
Ofcom, where a reputational damage dismissal had been fair. The EAT said
this case was very different from Leach. In Leach, there was
detailed information from the police to support the allegations, which there
wasn’t in this case. The employer in Leach investigated the police evidence
rather than simply accepting it – there wasn’t that opportunity in this case as
there was no comparable police evidence. In Leach there was existing
press interest in the case, and a real risk of adverse press coverage, which
wasn’t present here.
It’s hard to believe that it
could ever be unfair to dismiss a teacher when indecent images of children are
found on devices in their home. But this case shows the importance of an
evidence base for these decisions, both in relation to misconduct and any risk
of reputational damage. Employees must also be given an opportunity to deal
with all relevant issues at the disciplinary hearing for a dismissal to be
fair.
Disability
In order to qualify as a
disability under the Equality Act 2010, an impairment must have a substantial
and long-term adverse effect on an individual’s ability to do day to day
activities. In order to be long term, a substantial adverse effect must have
lasted, or be likely to last, at least 12 months, or be likely to recur. A
tribunal will look at medical evidence and the employee’s own witness evidence
about the effects of their impairment. But they will also look at other
evidence, including the employer’s, if that is relevant.
In Sullivan v Bury Street
Capital Limited, the employee was a sales executive in a small company. In
2013, he suffered paranoid delusions that he was being stalked by a Russian
gang following a split from a Ukrainian partner. He had previously had issues
with timekeeping, attendance and record keeping, but the delusions made this
worse. The employee sought treatment and his condition improved, so much so
that his boss invited him on an important business meeting to New York in September
2013. In April 2017, his delusions began having a greater impact on him. He was
eventually dismissed in September 2017 due to his capability and attitude. He claimed
unfair dismissal and disability discrimination, saying his paranoid delusions
had had a substantial adverse effect from 2013. At the hearing, a joint medical
expert confirmed this, although conceded that he couldn’t be sure about the
effects as he was relying on the employee’s account.
The employment tribunal overrode
the medical evidence and said the employee was not disabled. The employee said
the delusions had such an impact during the whole period that he would arrive
at work exhausted, struggle to stay awake and couldn’t concentrate on work. He
said it affected his personal hygiene. But the tribunal preferred the evidence
from the employee’s boss and a colleague who sat close to him in the office. The
colleague didn’t know anything about the delusions despite working alongside
him for many years, and said the employee was exaggerating his symptoms. In
evidence, the employee conceded he showered daily, flying in the face of his
own witness statement on personal hygiene. The tribunal said the delusions had
a substantial adverse effect for a few months in 2013 and then again in 2017 but
at neither point was the effect likely to last 12 months or recur. The employee
appealed but the EAT upheld the decision. They said the tribunal was at liberty
to weigh up all the evidence, including but not limited to medical evidence,
and arrive at its own decision.
This case confirms the position
that legal disability is a question for the tribunal rather than a doctor. This
is something which is often misunderstood by both employers and employees. Medical
evidence is just one piece of the puzzle. In this case, the employee chose to
rely on effects that his impairment had on him at work. This could be directly
countered by colleagues who were around him and, together with inconsistencies
in the employee’s own evidence, were fatal to his disability assertions.
Interim relief
The current uncertainty around jobs
can cause friction between employers and their employees. In such times, many
employees call on their trade unions for support. Unions are keen to stamp
their mark, not only to protect existing members but to capitalise on an
industrial crisis and turn it into a recruitment drive. Section 161 of the Trade
Union and Labour Relations Act 1992 allows an employee to claim interim
relief if they believe they have been automatically unfairly dismissed due to trade
union membership or activities. If an employee can show they are likely to succeed
in a claim for unfair dismissal due to trade union activities, then a tribunal
will reinstate them pending a full hearing of the case.
In Morales v Premier Fruits,
the employer was a fruit and vegetable wholesaler whose business had been
ravaged by Covid. In May 2020, they asked employees to take a 25 per cent pay
cut. The employee, Morales, refused and got his trade union to lodge a
grievance on his behalf. A staff meeting took place from which the employee was
excluded. It was recorded by a colleague. The manager could be heard making
derogatory remarks aimed at the employee and his union activities, expressing
views that were ‘strongly critical of trade unions’. The man who recorded the
meeting was dismissed three days later. The employee continued to refuse the
pay cut and was eventually dismissed in July, shortly after the grievance
process had concluded.
Although the tribunal said that a
full tribunal hearing will ultimately decide why the employee was dismissed, the
judge said the employee had a ‘pretty good chance of success’ in showing that
it was down to his trade union involvement. The recorded meeting’s transcript
showed clear irritation that the employee had involved his union. The tribunal
also felt the sacking of the person who had recorded the meeting was relevant.
The employer hasn’t lost the case yet, but the employee has now been reinstated
pending a full hearing, after the employer indicated they would consent to it.
This case shows the importance of
keeping your cool even when the waters are boiling. With a ravaged business and
plunging profits, the employer in this case had every reason to seek to reduce
its outgoings. Its mistake was reacting badly to the involvement of the
employee’s trade union and being openly disparaging about unions and their
activities in a staff meeting. However pressurised the economic environment,
managers and businesses must behave professionally in relation to both employees
and their trade unions. Showing your frustration, however understandable, can
land you in hot water.
Data protection
This month the High Court has
looked at the General Data Protection Regulation (GDPR) and the Data
Protection Act 2018 and their relevance in internal disciplinary
proceedings. In Kathryn Hopkins v HMRC, the employee was arrested in
connection with various offences, including sexual offences and an offence which
took place in a work vehicle. As required by her contract of employment, she
told her manager about the arrest. The manager then shared that information
with various internal departments, including HR (in relation to pursuing
disciplinary proceedings) and the press office (to manage any negative
publicity). The employee was suspended pending a disciplinary process for gross
misconduct. The employee’s contract of employment included terms involving
appropriate behaviour outside of work and conduct which could give rise to
queries about honesty and trust.
The employee went off on long
term sick leave and refused to open or read correspondence from the employer. She
said the internal investigation into the alleged offences was in breach of data
protection laws and should stop. The process was briefly halted but continued
after the employer sought legal advice saying it could press on. The employee
complained to the Information Commissioner’s Office and then brought claims in
the High Court for, among other things, data protection breaches by the
employer for ‘processing’ the information about her arrest both internally and
externally.
The High Court said the employer
had a lawful basis for processing the special category data about the
employee’s arrest when it suspended her and started disciplinary proceedings.
The processing in question was necessary for the performance of her contract of
employment and the employer had, as it was required to, an appropriate data
protection policy in place to which the employee had access.
This case shows how data
protection laws can be relevant in disciplinary proceedings and the sharing of
information internally to facilitate that process. It is also a case which
exemplifies the lengths to which an employee will go to avoid a disciplinary
process. Employers must ensure they follow the rules: an effective compliant
data protection policy is vital here. Employers must also ensure they identify
a lawful basis for processing (in this case it was necessary for the
performance of the employment contract) and maintain appropriate records. But employers
should not be cowed by an employee who adopts a scattergun approach to imagined
legal breaches in a bid to avoid facing the music.
Pleadings
The EAT has issued some guidance
on written pleadings which will make employers breathe a sigh of relief. All
too often, employment tribunal claims run to several pages, documenting several
years of alleged ill treatment, often without stipulating a single legal claim.
The EAT has provided its wisdom in a case called C v D, where the
employee had brought a claim for discrimination which ran to 37 paragraphs over
6 pages.
The claim form provided a
narrative account of the alleged discrimination. It referred to two different protected
characteristics but didn’t say which facts related to which characteristic. Nor
did the employee say what type of discrimination was being claimed. The
employer replied in narrative style, requesting further information, which the
employee provided. When that further information arrived, the employer said the
employee was raising new claims and new facts which would now be out of time.
An employment tribunal judge refused to allow certain amendments to the claim, so
the employee appealed.
As part of her reasoning, the EAT
judge discouraged the use of ‘narrative’ pleadings and encouraged legal
representatives to use more succinct and clear drafting. Claim forms are not
witness statements. They should set out a brief statement of the relevant facts
and then the cause of action relied on, such as unfair dismissal or the
specific discrimination claim (direct, indirect, discrimination arising from
disability, etc) rather than just saying ‘I have been discriminated against’.
Witness statements are the place to set out the exhaustive factual detail if it
is relevant. This case showed all too clearly what happens if claims lack
sufficient legal precision: costs increase (because of the extra hearings and
work entailed), time is lost, and delay is inevitable.
There is a balance to be struck
here, both in claim forms and responding to them. Sufficient factual basis to
support a claim or response, but not too much.
The difficulty in striking that balance is the reason many pleadings are
overly verbose. There is definitely merit in getting someone legally qualified
to draft pleadings, so that this balance can be properly struck, and legal
proceedings get off to a good start.
Privacy at work
Article 8 of the European Convention
on Human Rights says that everyone has the right to respect for private and
family life, their home and correspondence. Public authorities are not allowed
to interfere with that except in exceptional circumstances such as national
security, public safety or the prevention of crime. Employment tribunals, like
all courts, must construe employment law in a way which is compatible with the ECHR.
But how far does this right to privacy go, and what kind of things can trump
it?
In BC V Chief Constable of the
Police Service of Scotland, police officers signed up to a code of
professional conduct. The code applied both on and off duty due to the public
nature of their jobs. The code said officers must not behave in a way which interferes
with the ‘impartial discharge’ of their duties or gives the impression of
partiality. The Police Service of Scotland (PSS) conducted an investigation
into sexual offences within the police force. As part of the investigation, private
WhatsApp messages from groups chats between officers were found, containing
racist, sexist, anti-Semitic, homophobic and disablist comments, as well as photos
of crimes scenes in breach of police procedures. The PSS brought misconduct
charges against numerous officers. The officers retaliated with a claim alleging
that the misconduct proceedings based on private WhatsApps breached their right
to privacy.
The Inner House of the Court of
Session (a Scottish appeal court) found that there was no reasonable
expectation of privacy for police officers in relation to the private messages.
They were holders of public office and had signed up to certain restrictions on
their private life. In addition, all the officers involved were under a
contractual duty to report the behaviour of colleagues whose behaviour had
fallen short of the code of conduct. It was also relevant that the messages had
been discovered openly as part of a criminal investigation rather than in a
covert manner. The court disagreed with the officers’ contention that the
messages could only be used in the prevention of crime. There was a clear
public interest in maintaining a properly regulated police force in which the
public could have confidence. That objective was enough to justify the
restriction on the officers’ Article 8 privacy rights.
This decision accords with other
employment cases where tribunals have refused to find a reasonable expectation
of privacy in relation to comments made on social media or in work related
emails. However, to my knowledge, it is the first case involving WhatsApp
messages sent from personal accounts. Although this case involves public sector
employees, the same principles may well apply to any employees who are subject
to professional standards where the messages in question suggest a breach of
those standards in a way which might impact on public confidence in that field.
Tracking workers hours
Are you worried about your
homeworkers kicking back during the pandemic? Shibu Philips, founder of
London-based beauty business Transcend, has told the BBC he has been using
Hubstaff software in order to monitor what his employees are doing. He says he
knows only too well what its like to waste time at work. The software allows
him to track his workers’ hours, keystrokes,
mouse movements and websites. He can look at screenshots and see how
much time workers are taking on tasks. Employees are fully aware of the
software and can delete websites visited during breaks.
The pandemic has created a big
demand for this and other kinds of surveillance software. Employers worry that
a lack of visibility will impact on employee productivity. Understandably, they
want to protect their businesses at what is a crunch time for many. But is
software the way forward? Employees have also struggled during the pandemic,
worried about their health and families as well as their jobs and future
prospects. Introducing monitoring software during a crisis could damage employee
trust and confidence at a time when you want to retain your very best people to
see you through the crisis. Surveillance software isn’t fool proof – it can’t
record thinking time or the creative process in any meaningful way.
Instead of software, consider
whether some TLC might be a better way to go. Make sure managers are checking
in regularly with staff, not only to monitor work but to check on wellbeing.
Filter out and deal with any genuine shirkers as you would normally if they
took a three-hour lunch. The human touch can be more sensitive than software, and
carrots invariably work better than sticks with the employees you want to keep.
And remember, if you do use surveillance software to monitor staff, have a clear
policy, get employees to explicitly agree to its terms and make sure it is used
proportionately.Extra articles
Redundancy
ACAS has joined forces with the
TUC and CBI to issue a statement on how best to handle redundancies stemming
from the Covid pandemic. They recognise that redundancies may be unavoidable
for some businesses but ask employers to try all possible alternatives first.
Ideas include more part time working, cuts to overtime, finding alternative
roles for some staff and retraining others. They ask employers to consider the
following guidance and do what they can to look after their people as well as
their business:
Do it openly: following
collective consultation requirements is key but early open discussions about
potential redundancies is better for everyone.
Do it thoroughly: make
sure that the people carrying out your redundancy process have been trained in
how to handle it properly. They need to know the processes they must follow and
the legal hoops they need to jump through. Everyone involved needs information
and guidance, so they can pass that information onto the affected employees.
Do it genuinely: don’t
just go through the motions. Consultation involves genuinely listening to employee
and union views and being open to alternatives they put forward. Give feedback
if you reject their ideas so they understand why.
Do it fairly: as with any
process, following a fair procedure is key and any process must be free of
discrimination
Do it with dignity: losing
your job can be a devastating and traumatic experience. How an employer
approaches redundancy can change the way someone views both their position and
the company. Be kind in your conversations and correspondence, not only for the
benefit of employees but in case you want to rehire them in future.
Unlike the civil courts, costs
(including legal fees) are not usually paid by the losing party in employment
tribunal cases. Costs can be awarded by a tribunal if one of the parties has
behaved vexatiously, disruptively, abusively or otherwise unreasonably in
bringing proceedings or the way they have conducted themselves during those
proceedings. A costs order might also be made if a claim is pursued (or
defended) despite the claim/defence having no reasonable prospect of success.
They are rare, so are big news when they happen, especially when the sums involved
are large.
An employment tribunal has
awarded what is believed to be the largest costs award against an employee who
used to work for Millennium and Copthorne Hotels as Senior Vice President of
Global Procurement. Chee Hwee Tan was made redundant and brought a whole raft
of claims against his employer including unfair dismissal, discrimination based
on race, age and sexual orientation, whistleblowing detriment and unlawful
deduction from wages. Hedging his bets did not pay off for this employee.
The employment tribunal dismissed
all the employee’s claims. They found that the employee had been ‘duplicitous’
and acted in a way which undermined trust and confidence when he secretly
recorded conversations with colleagues. The tribunal made an order for costs
because his claims had been vexatious. The employee now must pay £432,000 to
the employer to cover the costs of defending those spurious claims.
Costs awards are rare, and usually
average only a few thousand pounds, so the pressure on the employer to settle these
spurious claims must have been huge. They held their nerve and it paid off.
This case doesn’t create any new law, but it does show that tribunals are
willing to make costs orders in the right cases, even if those costs are very
high.
The 10th October is
World Mental Health Day. In this whole
new chaotic and ever changing world, where even the most resilient amongst us
are having to adapt and deal with ever changing rules and challenges, we
consider the toll lockdown, isolation and loneliness are having on employees
metal health and the support that can be provided.
The Office for National Statistics
found that the rate of depression in adults doubled during June 2020 compared
to at the start of lockdown, with financial worries ranking highly on the
factors influencing symptoms. With
significant numbers of employees being furloughed and newspaper headlines warning
of a deep recession and wide scale redundancies, there is currently much
uncertainty for employees to process. Quoted
in the October 2020 Issue of People Management magazine, Dr Helena Boschi, an
expert in applied neuroscience and author of
‘Why we do what we do:
understanding our brain to get the best out of ourselves and others’ stated
“Our brains are naturally designed to
hate anything uncertain – it’s a guessing machine that makes a rapid assessment
of what’s dangerous and is predisposed to negative bias.” On the basis of the above research, we can
conclude that the current uncertainty around the world of work, the ever
changing rules and confusion over acceptable home and work life practices must
create a risk for the metal health of our teams.
What level of legal protection is there for mental health conditions
in the UK?
In the UK the law extends
protection to mental health conditions under the Equality Act 2010 where there
exists a substantial adverse effect on the individual’s ability to carry out
their normal day to day activities.
In 2010, the Employment Appeal
Tribunal distinguished between mental impairments that were serious enough to
attract legal protection, such as clinical depression, from diagnoses such as
low mood, which were described as a reaction to adverse life effects and not
protected. A decade on from that distinction being drawn, the line of legal
protection remains the same.
Mental health conditions and support
Although for many their conditions
may not necessarily attract legal protection, this no reason for employers to
ignore the impact of metal health issues or for employees to suffer in
silence. Perhaps one glimmer of hope to
come out of the pandemic, is the increased dialogue and publicity surrounding
mental health issues meaning employees may possibly be more willing to come
forward for support if they are experiencing difficulties before matters escalate.
There are many organisations
offering resources to support with metal health issues and the charity MIND is
one example of an organisation raising awareness on varying types
on mental health condition. They
also have a page for emergency
support . SAMH in Scotland also
provide useful
guidance, which is worth reading for anyone looking to improve their own
knowledge.
What are the next steps for employers?
Mental Health Awareness day is a
good opportunity to reflect on the support being offered to your employees in
this area. Leaders should ask
themselves: Are managers trained in how to identify and support with mental
issues? Do Managers appreciate the importance of regular communication and
discussion with employees (both present at work and working remotely)? Who can employees talk to if they have
concerns, for example could mental health first aiders be introduced?
How can we help?
LexLeyton is proud to partner
with some wonderful businesses and associations to share knowledge and educate
our clients on the expanding parameters of mental health. Whether it be mental health policies,
training, mindfulness sessions or wellbeing strategies, we recognise the
dynamics in every workplace and the importance of support that is right for
your unique context. If a free consultation could help support the further
development of your employee wellbeing strategy or a discussion around what we
can do to help, please reach out to us at legal@lexleyton.co.uk
The term ‘lay-off is often confused with ‘’redundancy’’ and
it’s very important to know the difference. ‘Lay-off’ is a temporary measure where an employer
provides employees with no work (and so no pay) for a period of time while
still retaining them as employees.
A shortage of
work
If an employer is experiencing a temporary shortage of work, as an alternative to redundancy, it may decide
to
lay employees off
temporarily.
A lay-off is where there is
no
work provided to the employees and in consequence they are paid no salary or wages. An alternative to lay-off is short-time working, where employees’ working hours
are reduced and in consequence their pay is reduced in proportion.
A contractual right or agreement
An employer cannot lay employees off or put them on short-time working unless the contract of employment states that there is a right for
the employer to do so or, alternatively, employees
specifically agree to be laid off or placed on short-time working.
Where an employer needs to deal with an unexpected downturn
in its business or unforeseen
circumstances but does not have a contractual right to lay employees
off
or put them on short-time
working, the employer may wish to consult with them (and with trade unions or other representatives, where
appropriate) to try to agree a temporary reduction in pay and benefits.
Where the alternative is closure and job losses, employees may be willing to reach
an agreement.
If an
employer lays off an employee or puts them on short-time working in the absence of a
contractual right to do so, the employer will likely be in fundamental
breach of contract.
A notice of intention to claim a redundancy payment
If a period
of
lay-off lasts for more than 4 consecutive weeks or more than 6 weeks in any 13-week period, employees with two years' continuous service are entitled to serve “notice of intention to
claim” to terminate their employment and claim a redundancy payment. The same applies to short- time working where the employees’ remuneration is reduced by more than half for the same periods.
If this happens, the employer can:
Accept that a redundancy situation exists and pay the redundancy payment or,
Serve a counter-notice stating that it expects to be able to provide the employee with at least 13 weeks’ continuous work. If the employee does not withdraw his claim to a redundancy payment the matter is referred to an Employment Tribunal.
Guarantee Payments
During a period of lay-off or short time working, an employee may be entitled to a statutory guarantee payment (SGP) on up to 5 "workless days" in a three-month period. A "workless day" is a full day during which the employee would normally be required to work in accordance with their contract but is not provided with work by their employer
An employee will not be entitled
to
an SGP where:
They do not have at least one month's continuous employment
The workless day is due to industrial action.
The employee has unreasonably refused an offer of alternative work.
The employee does not comply with reasonable requirements imposed by their employer with a view to ensuring that their services are available.
If a free consultation could help you work
through what options might be available to your business as an alternative to
redundancy please reach out to us at legal@lexleyton.co.uk
The Coronavirus Job Retention Scheme
(‘CJRS’) will end on 31st October 2020. Despite recent ‘kite-flying’
suggesting that it may be extended in certain industries, such as events or
leisure, that deadline remains hard and is approaching at speed.
The scheme was introduced at an incredible pace, has frequently evolved and is not without its complexities even now. Many employers have struggled in the correct application of the scheme, often resulting in accidental under-/over-claims being made or overpayments or underpayments to employees.
Common problem areas include:
Claiming for days not worked as part
of a ‘claim period’;
Claiming for days when employees were
signed off sick;
Identifying which areas of pay constituted
‘regular payments’ such as overtime, commission and fees when calculating how
much to claim;
‘Hangover’ problems caused by the
fact that until the 5th of June, it was not possible to correct
errors in a previous claim period.
HMRC have made regular noise around perceived abuse of the CJRS. The government has said that up to £3.5bn in CJRS payments may have been fraudulently claimed or paid out in error https://www.bbc.co.uk/news/business-54066815 and arrests have already been made of those suspected of defrauding the UK taxpayer and HMRC.
HMRC has the power to recover amounts
of CJRS grants that have been incorrectly claimed. If an employer has
inadvertently claimed excessively and fails to notify HMRC of this, penalties may
be levied.
The penalties operate on a
tiered-system based on knowledge of the error and whether the employer has come
forward to report to HMRC or not. If you knew you were not
entitled to your grant and did not tell HMRC, that failure will be treated as
deliberate and concealed. In that event
HRMC has authority to charge a penalty
of up to 100% on the amount of the CJRS grant that you were not entitled to
receive or keep.
A significant number of employers
will have realised that they have made errors in the CJRS claims. Any problems or errors can be identified and
there is now a mechanism for correcting them, thereby avoiding any penalties.
In the case of an under-claim, whilst
there would be no penalty from HMRC, the employer would have failed make the
best use of the available benefits of the scheme – so an opportunity
potentially to claim some cash.
If an employer has incorrectly claimed a CJRS grant (and have
not repaid it in the case of an overpayment), HMRC must be notified, within the
‘notification period’ which ends on (and is the later of)
90 days after the relevant grant was
received (if this was in excess of the correct amount);
90 days after the date circumstances
changed so that you were no longer entitled to the CJRS grant; or
20th October 2020.
The notification and correction can
be submitted the next CJRS claim is being made.
Otherwise, the notification of the over-claim must be done separately,
via the CJRS portal.
Once the notification is made to
HMRC, any amount over- or under-paid will need to be assessed directly by them
and remedied if appropriate.
The crucial lesson in all of this is:
even if employers feel they have acted correctly, it’s important to consider
doing a double check of the historic amounts claimed under the CJRS.
Check your calculations now, and
certainly well in advance of the 20th of October.
Whether it comes with a ‘thud’ or ‘ping’, HR and business owners’ know the dreaded
sound of an ETI kicking off an employment tribunal claim hitting their doormat
or inbox which will be closely followed by a long ‘sigggghhhh’
But what if the first time you get to hear about the claim
is when what thuds or pings through is the
ET3 response request? What if you hadn’t seen any communication from
ACAS about mandatory early conciliation because the email hadn’t reached as it
should have being responsible for all things HR but instead, had fallen into an
unmonitored email inbox orsent to some random person within your business?
Hopefully and particularly if you are a smaller business,
employment tribunal claims of any kind rarely come across your desk. But in
bigger businesses, and particularly with the current economic climate where
people are being laid off left right and centre and looking everywhere for
possible avenues for recompense, whether you are a small or large organisation
my prediction is you can expect to receive more of them.
September marks the start of the new school year and a return to the workplace for many employees who spent the spring and summer months working from home. Those employees anxious about returning to work will have been reassured by the “Working safely during coronavirus” guidelines introduced by the Government to ensure employers takes steps to keep their employees safe and healthy while at work.
However, what if despite an employer’s best efforts one of their
returning employees contracts Covid-19.
What action must an employer take?
The following steps are recommended:
Monitor exposure: An employer must monitor exposure to coronavirus in the workplace. This will involve keeping a record of any employees in the workplace who test positive for Covid-19.
Employee self-isolates: The employee must self-isolate for 14 days during which they will be entitled to receive statutory sick pay or contractual sick pay.
Alert any close contact colleagues: The NHS Test and Trace service will ask the employee to provide details of anyone with whom they have been in recent close contact with. By “close contact” is meant any person to whom the infected employee was close at any time from 2 days before the employee showed symptoms to up to 7 days after the onset of symptoms. It includes not only close face-to-face contact but also being in close proximity to the employee for more than 15 minutes. The employer should alert any co-workers of the infected employee who may be close contacts. When doing so, the employer should bear in mind the need to comply with data protection obligations and only share details of the employee’s diagnosis where there is a lawful reason for doing so. Co-workers who have been in close contact with the infected employee do not need to self-isolate unless told to do so by NHS Test and Trace or a public health professional. They should nevertheless take precautions to avoid spreading the virus. The employer should therefore consider permitting them to work from home for a short period instead of coming into the office.
Clean the office: The workplace must be cleaned and disinfected in accordance with Government guidance on how to clean an area that was recently visited by an individual with Covid-19.
Reporting obligations: Under the RIDDOR* reporting obligations, an employer must make a report to the Health and Safety Executive if an employee contracts Covid-19 as a result of “occupational exposure”, that is, as a result of their work. In most cases it will be difficult to pinpoint the workplace as the cause of infection because the employee may well have contracted the virus outside of work.
*RIDDOR means the Reporting of Injuries, Diseases and Dangerous
Occurrences Regulations 2013.
LexLeyton can assist employers with advice on any particular issues arising from employees returning to the workplace. If a free consultation with one of our expert employment law solicitors around this or any other related issue would be of help just pop your details over to us at https://lexleyton.co.uk/free-consultation/ or contact us at legal@lexleyton.co.uk
*RIDDOR means the Reporting of Injuries, Diseases and Dangerous
Occurrences Regulations 2013.
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