International Day for Persons with Disabilities

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

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

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

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

Supporting Disabled People at Work – what can you do?

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

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

Business Benefits of being Disability Confident

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

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

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

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

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

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

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

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

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

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

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

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

Employee Criminal Records – Updated Guidance

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

An EPIC workforce with no pay gap?

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

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

What would this bill change?

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

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

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

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

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

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

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

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

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

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

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

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

Key Changes to the Coronavirus Job Retention Scheme for Employers

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 Leave were 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/

Overpayment Of CJRS support – HMRC Enforcement Action

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.  

Bullying in the Workplace – what can your business do to tackle it?

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

World Kindness Day: Respect in the Workplace

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

Furlough – Compliance and Claiming

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

Help for Businesses struggling to pay Statutory Redundancy payments

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.

For further information please see the attached link:  https://www.gov.uk/government/publications/financial-assistance-for-employers-unable-to-pay-statutory-redundancy-payments/financial-assistance-for-employers-unable-to-pay-statutory-redundancy-payments

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.

Post Brexit – Your Current and Prospective European Staff

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.

Your existing EU staff

Your EU, EEA or Swiss staff currently living in the UK must apply for a ‘settled’ or ‘pre-settled’ status before 30 June 2021 under the EU Settlement Scheme to continue being legally recognised as a resident of the UK. The application is free https://www.gov.uk/settled-status-eu-citizens-families/applying-for-settled-status

Employees do not need to apply if:

•             They are an Irish citizens

•             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.

Furlough Extension – more support for businesses announced 5 November 2020

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.

Employment law update – November 2020

Covid-19

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.

Read the briefing at www.workingfamilies.org.uk.

Discrimination – Compensation

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.

Coronavirus Job Retention Scheme and back to Furlough – what does it all mean for your business

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.

Menopause at work: it’s prime time to break the taboo

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/ .

Parental Bereavement Leave – Doing the right thing, the right way.

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.

Employment law update – October 2020

Woman sitting at table, using laptop


Latest Government Developments

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.

The ACAS guide to redundancy can be found at https://www.acas.org.uk/redundancy

Costs

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.

Your manager can see you now – mental health challenges in the ‘new world’ of work.

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

Lay-Off & Short-Time Working

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

Coronavirus Job Retention Scheme claims: disclosing and fixing mistakes with HMRC

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.

https://www.gov.uk/guidance/pay-coronavirus-job-retention-scheme-grants-back

ACAS Contact – Register Your Business

ACAS Contact

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.

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What to do if your employee contracts COVID-19 – 5 Steps to Compliance

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

Multiple cases of Covid-19 in the workplace must be reported to the employer’s local health protection team.

*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.