Mind the gap – reporting on ethnicity and disability pay gaps

Since 2017, all employers with 250 employees or more have been required to carry out gender pay gap reporting. The gender pay gap is the difference between the average earnings of men and women across a workforce. Private sector employers have to report annually on 4 April, while public sector employers report annually on 30 March.

Gender pay gap reporting has the aim of promoting more transparent and gender-balanced pay practices. As gender pay gap reports are public, it’s possible to browse them and compare data between employers.

Greater transparency can lead to greater accountability. Publishing pay gap data does not automatically eradicate pay disparity, but it can stimulate internal discussion about the makeup of an organisation’s workforce. This can help employers devise an action plan to reduce the gap. Gender pay gap reporting appears to have raised the level of women being recruited and promoted into senior roles.

Given the benefits realised from gender pay reporting, it’s been recommended that pay gap reporting should be extended to other under-represented groups in the workplace. In particular, reporting on ethnicity and disability pay gaps have long been suggested.

In January 2019 the Government completed its consultation on ethnicity pay gap reporting. However, to date the Government has not yet moved forward with plans to make ethnicity pay gap reporting mandatory. Despite this, some organisations voluntarily produce their own ethnicity pay gap reports.

One issue that has long dogged ethnicity pay gap reporting is how ethnicity is to be defined. The commonly used term “BAME” (Black, Asian and Minority Ethnic) is the term most often used in ethnicity pay gap reports. However, census reporting uses a wider selection of ethnic categories. There are also issues of confidentiality and data protection.  For some employers too much detail could lead to identification of the employees involved.

Despite the challenges, ethnicity pay gap reporting can bring real benefits to an organisation. As Sandra Kerr of Business in the Community notes: “Ethnicity pay gap reporting is an important tool that employers can use to ensure they are being fair in pay, reward and recognition. It can also help an organisation identify where there may be structural issues on how talent from diverse ethnic backgrounds is distributed within the organisation. De-aggregating the data gives an additional layer of transparency on where there may be pay disparities within ethnic groups and by location. Most importantly, it ensures the issues of race, ethnicity and inclusion remain pertinent issues for discussion at the top table within organisations.”*

Similar benefits can be realised where organisations carry out disability pay gap reporting. More than 11 million people in the UK have a disability, and 16% to 19% of those are of working age. According to research by the TUC, disabled women face the most significant pay gaps of all. This highlights the importance of employers taking an intersectional approach when tacking pay gap reports and action plans.

Instead of waiting for mandatory ethnicity and disability pay gap reporting to be introduced, employers can take steps to identify and address any gaps they have now. Recommended steps for employers to follow are:

  1. Collect and publish ethnicity and disability pay gap data in a similar manner to gender pay gap reporting.
  2. Use this information to create action plans that address the underlying causes of pay gaps.
  3. Set targets for reducing pay gaps.
  4. Measure and report progress against those targets annually.

LexLeyton can assist employers with advice and training on diversity and inclusion in the workplace. Please contact us at legal@lexleyton.co.uk if you would like to discuss this topic in more detail.

*A Guide for General Counsels - Ethnicity Pay Gap Reporting; Business in the Community (BITC); published 14 April 2021. Available at: <https://www.bitc.org.uk/report/a-guide-for-general-counsels-ethnicity-pay-gap-reporting/>.

Summer Season 2021 – tips to reduce employer headaches

As I write this , the government has announced that Portugal is being removed from the ‘green’ list of countries where there is no requirement to quarantine upon return. Knowing  your employees holiday intentions and the destinations they have chosen used to be a by –product of ‘water-cooler’ moments with your people. Quarantine was a word used solely in respect of far flung relocations like Australia and the heartache of placing a beloved dog in kennels for the mandatory period : now its front and centre in the minds of HR teams and employment lawyers as we all grapple with what the summer holiday season 2021 means for us all.

Even with the most cursory of glances, it is clear that summer 2021 has the capacity to cause potential strife and chaos across UK workplaces. The government’s traffic light system of ‘red’ ‘amber and ‘green’ applicable to foreign destinations sets out the guidance, testing and quarantine regime for each country. Currently, only those returning from the limited list of ‘green’ countries are not required to quarantine upon their return to the UK.

Having just spent a much needed week in Northumberland on holiday, I can testify to the benefits of having a break from the workplace. And whilst I have no desire for foreign travel during a global pandemic (my passport is remaining tucked away in a safe place for the foreseeable future) I do know that for some people, a foreign holiday with guaranteed sun is at the top of their wish list as we move out of Covid-19 restrictions. 

Holiday Planning and Policies

The pandemic has changed many things and its tentacles are reaching into employers holiday policies. You can’t tell your employees where they can go on holiday to, but it is really important that you get a handle on how you are going to deal with holiday request this summer and for once, knowing where your people are planning to holiday is going to be fundamental.

This summer you need to find out your employees holiday intentions to understand what this means for you as a business and to ensure you have a policy to help you remain ahead of events and avoid strife and miscommunication in your workplace.

There are many things to think about : from how will you deal with mandatory quarantine upon an employee’s return to the UK after holidaying abroad, to ensuring that you treat those who can work from home and those who can’t work from home fairly when it comes to quarantine periods.

If your average employee takes a two week break abroad, if that holiday will now require a mandatory period of home or government hotel-based quarantine, that means they will potentially be away from the workplace for an additional period of up ten days.

Can you deal with the risk of extended absences in terms of cover and resourcing – especially over the summer school holidays? What if the individual can’t work remotely? Will you insist they take this period as additional leave or as unpaid absence? What other impacts may your business face?

During spring 2020 at the start of the Covid -19 pandemic, employees could be forgiven for finding themselves stuck abroad as government advice was in a state of flux and changed whilst they were away. Summer 2021 in my opinion is a different kettle of fish entirely, with all parties being fully aware of what they have to do upon their return.  We all know that there is a risk that a ‘green’ destination country could change whilst people are away, so knowing how you will deal with an unexpected quarantine period impacting an employee will be crucial – for your business and for your employee.

Remote Working

We know that some employers have had to deal with the consequences of their people being stuck abroad after travel corridors closed unexpectedly, or that their employees are actively thinking about working remotely from abroad: these scenarios call for a policy on ‘Remote Working Abroad’. It’s also worth considering that some employees are desperate to travel abroad to see much missed family or as a result of a family bereavement : 2020 saw too many families separated from one another. How an employer deals with their people at times of personal crisis is so important, and your business should be prepared to flex your policy in such circumstance.

Annual Leave Entitlements

With the relaxing of the rules on the carryover of annual leave, many employees have built up considerable balances of leave. Some employees feel they don’t want to take leave if they can’t travel abroad. Some will assume their leave is automatically cancelled if they can no longer holiday abroad. It is worth remembering that the right to statutory annual leave is derived from  the Working Time Directive with the emphasis being on rest and relaxation away from the workplace. Making it clear that you expect employees to take a proportion of annual leave by a certain date is good practice in the circumstances and will go towards preventing burn out. We have all been affected to some degree by the pandemic and a recharge of our batteries and time with family and friends is crucial to our wellbeing. 

Many companies generated enormous amounts of goodwill over the pandemic as everyone pulled together and went to different ways of working almost overnight. Summer 2021 has many pitfalls and traps awaiting those employers who fail to plan and consider how they will deal with holidays this summer- getting it wrong will squander goodwill and foster unrest.

And Let’s Not Forget!

Finally, don’t forget the ‘normal’ events which can impact summer plans, resourcing and goodwill  : the European Football Championship starts on 11 June 2021 and end on 11 July with England, Wales and Scotland taking part and the Tokyo Olympics are set to go ahead from 23 July to 8 August. With an 8 hour time difference between the UK and Tokyo, sports fans will have to be awake during the middle of the night and the early morning to watch live action!

Lexleyton can help you to work through how to manage employees holiday plans for summer 2021 and ensure you have the right policies in place for your business to ensure you are prepared for, and can proactively address the impacts. For a free consultation with one of our expert employment law team reach out to us at legal@lexleyton.co.uk

Ageism – the unspoken workplace discrimination

Last year Citibank lost an age discrimination claim brought by ex-employee Niels Kirk. The former senior manager was 55 when the bank made him redundant. Kirk had worked at the bank for 26 years and was regarded as a  high performer. He attributed the bank’s decision to make him redundant to a culture in which managers who hit their fifties were expected to make way for younger staff.

If Employment Tribunal statistics are anything to go by, there are many other employees in Niels Kirk’s boat. Age discrimination claims at the Employment Tribunal rose 74% over the last year. October to December 2020 saw a staggering 176% rise in age discrimination claims compared to the same period the year before. It appears that the pandemic has worsened ageism in the workplace.

Niels Kirk was in no doubt that his redundancy was due to ageism. He said he had been told “you’re old and set in your ways”, and that his age and many years’ service counted against him. The bank needed a more “agile approach”, they told Kirk. He assumed they meant youthful. Although Kirk complained to Citibank that his redundancy selection was age discrimination, he never received a meaningful response. 

In Citibank’s handling of Niels Kirk, they made a number of common mistakes that can cause or contribute to age discrimination:

  1. Not taking the employee’s concerns seriously. The Tribunal found that the bank appeared to have dismissed Kirk’s complaints without making any real attempt to investigate them. Many employers are alert to potential complaints of discrimination on the well-known protected characteristics of race, disability and religion. Age discrimination complaints often fly under the radar. They should be treated as seriously as any other discriminatory complaints and a formal grievance process should be followed.
  • Derogatory comments about the employee’s age. The negative remarks about Kirk’s age were humiliating and insulting. The Tribunal found they amounted to age harassment. Employers should be aware that the perception of the complainant is key when deciding if particular conduct is harassment. It does not matter if comments were not intended to offend.
  • Relying on inaccurate assumptions about older workers. Kirk was made redundant because the bank thought his age made him stuck in his ways. This was based on the fallacy that older workers have less interest in exploring new ideas or developing new skills. Employers should avoid sidelining older workers over outdated perceptions about their abilities as this could be discriminatory.
  • Using discriminatory redundancy selection criteria. The Tribunal found that Kirk’s age was one of the reasons for his redundancy. Employers should take care not to use discriminatory criteria when selecting employees for redundancy. Objective selection criteria are preferable.
  • Using discriminatory language to describe desirable qualities for employees. Citibank prioritised “agility” among its managers, a term which equates to youth. To avoid age discrimination during recruitment, employers should avoid showing a predetermined bias for applicants with a particular characteristic. Such language might deter older applicants. The focus should instead be on skills and experience that demonstrate an objective approach to recruitment.

Employers should treat age as an asset, not a hindrance. A more diverse workforce includes having employees of different generations, in addition to other markers of diversity. Each age group will contribute different perspectives which can give an organisation a competitive advantage. Employers should therefore ensure they have strategies in place to make their workplaces age inclusive.

LexLeyton can assist employers with advice and training on any particular issues arising from older employees in the workplace. Please contact us at legal@lexleyton.co.uk if you would like to discuss this topic in more detail.

Employment law update – June 2021


Are You Furloughing between 16 to 99 People? Are You Furloughing between 16 to 99 People?

If the answer is yes, from the 27th May 2021, you are no longer able to claim for furloughed wages under CJRS without completing this excel sheet and uploading the file with your claim containing the following information for each employee. 

  • full name
  • National Insurance number (or payroll reference number if you do not have this)
  • payroll reference number (sometimes called a pay identify or staff number)
  • furlough start and end date (using the format DD/MM/YYYY)
  • full amount claimed (pounds and pence)
  • normal hours (using decimals, for example 7.5)
  • actual hours worked (using decimals)
  • furloughed hours (using decimals)
  • if they have returned from statutory leave and you then put them on furlough

You will need to make sure that you submit one line per employee for the whole period and that all of the worker’s information requested is provided in the requested format.

Read the rules on what is required very carefully as your claim won’t be processed if the file isn’t completed properly or if you upload it in a wrong format.


Constructive dismissal

An employee is constructively dismissed if an employer fundamentally breaches their employment contract, entitling the employee to resign in response and say they were dismissed. The employee must not ‘affirm’ the contract, for example by delaying too long before resigning. Previous case law has shown that a fundamental breach of the implied contractual term of mutual trust and confidence cannot be cured (Buckland v Bournemouth University), but an employer can prevent a situation escalating into a breach of trust and confidence by apologising and correcting the previous behaviour (Assamoi v Spirit Pub Company). In Flatman v Essex County Council, the Employment Appeal Tribunal has reaffirmed the principle that a fundamental breach of contract cannot be repaired.

The employee was a learning support assistant whose duties including lifting a disabled child. Over many months, she repeatedly asked for manual handling training which was not forthcoming. She developed back pain and was signed off work. On her return, the employer told her that she would not have to lift the pupil, she would be assigned to another class and training would be provided. The employee resigned and claimed constructive dismissal. The employment tribunal dismissed her claim. They said that, at the point of resignation, the employer had showed concern for the employee’s health and safety and had not fundamentally breached the implied duty to take reasonable care of her health and safety.

The EAT said the tribunal was wrong. They had looked at the overall position at the point of resignation, rather than whether there had been a fundamental breach of the implied term at some point previously. The EAT said there had been a breach which had become fundamental at the latest by the time the employee resigned because of the increased and continuing risk to health and safety and the actual harm caused in terms of the back pain. The employee had not affirmed the contract. An employer’s intention to provide training may be relevant if action is taken as well but is less relevant in implied terms relating to health and safety than mutual trust and confidence. It was also relevant here that the breach was not a one off but continued over a period of time. The breach had already become fundamental, so couldn’t be cured. The EAT said the employee had been constructively dismissed.

This case hasn’t changed the law, but it has highlighted the importance of applying the legal test correctly. Constructive dismissal cases are complex but what is clear is that employers cannot roll back from a fundamental breach of contract once it has occurred. Unless the employee affirms the contract, the breach can be acted on and resignations can become constructive dismissal claims. In this case, the employer should have sorted the relevant training out at the beginning of the job. That would have prevented the injury, stopped any breach becoming fundamental, and saved the employer the time, cost and hassle of the litigation process.


Indirect discrimination

EU law requires all member states to ensure that individuals suffering discrimination receive appropriate remedies, including compensation. If an employee wins a discrimination claim, section 124(2) Equality Act 2010 (EA) says that an employment tribunal can make a declaration (i.e. that the employee has been the victim of discrimination), order compensation or issue a recommendation to the employer (aimed at reducing the discriminatory effect on the employee). If there has been unintentional indirect discrimination, section 124(4) and (5) EA say that the tribunal must consider a declaration or recommendation first before deciding whether to order compensation. These provisions build on and change the original legal positions under the Sex Discrimination Act 1975 and Race Relations Act 1976, which originally prevented tribunals from awarding compensation for unintentional indirect discrimination.

In Wisbey v City of London Police, the Court of Appeal has looked at whether section 124 provisions are compatible with EU law. The employee was a police officer who had a form of colour blindness. He was an authorised firearms officer. Despite his impairment having no obvious effect on work, in March 2017 he was removed from his firearms officer responsibilities as well as any advanced rapid response driving. In February 2018, after more tests, he was reinstated to these roles. He brought a claim for indirect sex discrimination against his employer. 8% of men suffer colour vision defects but only 0.25% of women. The employee argued that the requirement to pass certain colour vision tests put men at a disadvantage compared to women. In his evidence, the employee’s injury to feelings was linked to his ban from firearms work rather than the driving duties.

The employment tribunal said he had been indirectly discriminated against but only in relation to the removal from advanced driving and not firearms work. The tribunal did not award injury to feelings as it said the discrimination was unintentional – the employer didn’t know men would be disadvantaged in the tests and did not intend the consequences. The EAT did not uphold his appeal so he appealed to the Court of Appeal, saying that sections 124(4) and (5) EA were incompatible with European law. The Court of Appeal dismissed his appeal too. They said the requirement in those sections to consider remedies in a certain order did not make seeking compensation more difficult for an employee in relation to unintentional discrimination. The provisions don’t prioritise one remedy over another and doesn’t dissuade tribunals making awards. In any event, tribunals will usually make a declaration before awarding compensation anyway. In this case, the tribunal might have misdirected itself when it said no compensation was due because the discrimination had been unintentional. However that did not make the decision not to award compensation wrong in this case on the facts. It was the driving ban which was found to be indirectly discriminatory, and the employee’s evidence was that his feelings were injured by the firearms work ban, not the driving. On that basis, injury to feelings was not appropriate.

This case doesn’t really explain why the Equality Act 2010 retained some different remedy provisions for unintentional indirect discrimination when the bans on compensation were removed by the time the Equality Act was introduced. It makes little difference in practice as a tribunal is highly unlikely to award compensation in a discrimination claim without first making a declaration. This case also shows that injury to feelings are based on the employee’s evidence about the impact the discrimination has had on them. In this case, the employee’s evidence showed that his feeling were not hurt by the discriminatory ban on advanced driving duties, and therefore it was right that no compensation was awarded.


Changing terms and conditions – Covid-19

Many employers have changed terms and conditions during the pandemic, whether to access the furlough scheme or to enable the survival of the business through economically unprecedented times. Some employees have been willing to agree to those changes, keen to avoid a redundancy situation. If an employee refuses to change their contractual terms, an employer cannot unilaterally make the change without breaching the contract. The safer method is to dismiss the employee lawfully from the old contract – by giving contractual notice – and offer to immediately reengage them on new terms. Provided the employer has a sound business reason for making the change, the dismissal may be fair based on ‘some other substantial reason’ (SOSR), one of the five potentially fair reasons to dismiss. The dismissal must be reasonable overall, which includes following a fair procedure.

In Khatun v Winn Solicitors, the employer experienced a downturn in work due to the pandemic. It decided to furlough half its staff, with the other half retained to service the remaining work. All employees were required to sign new contracts or face dismissal. The new terms gave the firm the right to furlough staff or to unilaterally reduce their hours and pay on short notice. The employee refused to sign the new contract, saying she would consider furlough or a reduction in hours in future if the situation arose. The employee was urged to reconsider but she refused. She was dismissed without notice or accrued holiday pay because the COO was ‘fuming’. Her remote computer access was removed before she was even told about her dismissal. The employer later accepted they owed her notice and holiday pay and paid it. The employee brought an unfair dismissal claim.

The employment tribunal agreed that she had been unfairly dismissed. They acknowledged that the business had sound, good business reasons for the contract change. Given the effect of the pandemic, it was reasonable to request these changes and it was not premature. Theoretically, the dismissal had met the SOSR test. However, the employer had not behaved reasonably overall. The tribunal conceded that only one employee out of 300 had refused to sign, which indicated that the business had acted reasonably. However, there had been no meaningful consultation at all, just a one-sided conversation. Although a subsequent phone call had looked more like consultation, the tribunal did not believe meaningful consultation had taken place. The employer did not explore alternatives and instead just reiterated the firm’s position. The firm said they did not have time to negotiate with 300 staff, but the facts showed that it was only this employee with whom consultation was required. The tribunal was surprised that a firm of solicitors had so little regard for a binding contract and an employee’s desire to protect her contractual terms. The employer’s own evidence was that they did not explore alternative options and the employee would be dismissed if she refused. They had offered no appeals process. The tribunal said a reasonable employer would have taken more time to engage meaningfully with the employee and explore alternatives to dismissal. The dismissal was unfair.

Fire and rehire is itself coming under fire (see below) but this case also shows the importance of following a fair procedure in any dismissal case, whatever the circumstances. The key issues in this case were the lack of consultation and any reasonable consideration of alternatives to dismissal (including her offer to stay on existing terms and consider changes in future if required). With a sound business reason for the change, and SOSR engaged, all the employer then needed to do was follow a fair process. For one employee, this would not have taken much longer than the 48 hours in which the employee was given to sign her new contract. The employer here let their panic at Covid, and ‘fury’ with the employee, override the importance of a fair process. A remedy hearing will decide just how much that mistake will cost.


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 employee’s ability to do day to day activities. The long-term requirement is met if the impairment has lasted, or is likely to last, at least 12 months. A recent case in the Court of Appeal has looked at when that assessment should take place, at the time of the discrimination or with the benefit of hindsight when preparing for a tribunal hearing.

In All Answers v W and R, the employees said their depression and post traumatic stress disorder met the legal test for disability. They said they had been discriminated against on 21 and 22 August 2018. The employer challenged their disability status, saying that in August 2018 the impairments had not lasted, and were not likely to last, at least 12 months. The employment tribunal considered evidence about the effect of the disability after August 2018. Their conclusions about disability were described in the present tense, apparently at the date of the tribunal hearing, rather than assessing what the position had been in August 2018. The employer appealed to the EAT and lost, then appealed to the Court of Appeal. The issue to be decided was whether the impairments met the long-term test.

The Court of Appeal looked at what ‘long-term’ meant. The impairments arose in April 2018, so had not lasted for 12 months by August 2018. The question then was whether the substantial adverse effects of those impairments were ‘likely to last for 12 months’ at the time of the alleged discrimination. That question must be answered using the facts and circumstances which existed at that time, not with the benefit of hindsight or evidence from after that date. The Court concluded that the tribunal had not asked that question. They said the employees ‘are disabled’, not ‘were disabled’ at the relevant time. The use of the present tense, asking ‘is [the employee] disabled?’ clearly showed this error. The employer’s appeal succeeded, and the case was sent back to the employment tribunal to decide the issue properly.

This case demonstrates the complexity of the law on disability, with the Court of Appeal saying even learned judges in the EAT had got it wrong. Employers should always tread carefully with employees who say they are disabled. Early legal advice is essential to ensure cases are defended robustly and in accordance with the complex legal test.       


Worker status

Most of the cases on worker status so far have dealt with relatively low paid gig economy workers, such as cab drivers and couriers. In Somerville v Nursing and Midwifery Council, the EAT has looked at the worker status test in relation to a barrister who had a contract with the Nursing and Midwifery Council as a panel member in professional conduct hearings. A ‘worker’ is defined by section 230(3) Employment Rights Act 1996. The definition includes employees and anyone else who works under ‘any other contract…whereby the individual undertakes to do…personally any work…for another party’ provided the other party isn’t a client or customer of the individual (which would make them genuinely self-employed).

Mr Somerville was contracted to sit on panels in fitness to practice hearings, which he did alongside his other legal work as a barrister. His contract with the NMC said he was a self-employed contractor and gave no requirement for him to be offered any work. Nor was there any requirement on him to accept work when it was offered. He brought an employment tribunal claim for holiday pay, saying he was either an employee or a worker. The employment tribunal said there wasn’t sufficient mutuality of obligation to be an employee – he wasn’t required to do a certain number of days and was free to withdraw from dates he accepted. However, he had to do the work personally. The work was central to the NMC’s main function of maintaining high standards for nurses and midwives. He had to do mandatory training. His pay was fixed and non-negotiable. As such, the tribunal said there was a degree of subordination to which someone truly self employed would be unlikely to agree. He was a worker. The NMC appealed. They said that an ‘irreducible minimum of obligation’ – to offer and accept work – was an essential part of worker status.

The EAT did not agree. The tribunal had established that there was an individual contract every time Mr Somerville sat on a panel. There was also an overarching contract for providing his services. Once that overarching contract was established, there was no additional duty to demonstrate any more mutuality of obligation. The important question for worker status wasn’t the requirement to offer and accept work but the degree of control exercised once that work was accepted. The EAT said Mr Somerville was under a high degree of control in his work as panel chair. Once he said he was available, he was required to accept the work offered, perform it personally (he could not subcontract it out to another person) and work to the particular standards and requirements of the NMC. The EAT said the fact he paid his own tax was not relevant.

This is yet another case that demonstrates that the labels which businesses put on contracts can sometimes mask the true nature of the legal relationship. Employment tribunals will dig behind those labels and look to the reality of the position. If an individual is integrated into the business in the way Mr Somerville was, worker status is likely. This also shows that worker status cases are not limited to the gig economy. Self-employed status should be used with extreme caution by employers and only when it truly represents the relationship between the parties. Employers should beware that individuals on zero hours contracts, where the facts imply an overarching contract, may well be workers.


Health and safety dismissal

Section 100(1)(a) Employment Rights Act 1996 says that an employee is unfairly dismissed if they were dismissed for carrying out activities assigned by the employer which are designed to reduce or prevent health and safety risks. A dismissal under this section will be automatically unfair and employees do not need the usual two years’ continuous service to bring these claims.

In Sinclair v Trackwork, the employee was a Track Maintenance Supervisor who was asked to implement a new safety procedure. His colleagues did not know he had been given this task and complained about his approach which they said was ‘over cautious and somewhat zealous’. This created ill feeling and friction among his colleagues, for which the employee was later dismissed. He brought a claim for automatic unfair dismissal. The employment tribunal said he had not been unfairly dismissed. He was dismissed because of the way he had carried out his health and safety activities and demoralised the workforce, not because of the health and safety activities themselves.

The EAT disagreed. Carrying out health and safety activities will often be met with resistance from colleagues. That is why the protection of section 100(1)(a) exists. It would undermine the purpose of the law if any upset or ill feeling caused by legitimate health and safety activity could be hived off and treated separately from the activities themselves. The EAT said there may be cases where an individual’s conduct can be separated from the activities – if that conduct is unreasonable, malicious or irrelevant to the task – but that was not the case here. The employee had simply done as instructed and relationships with colleagues had soured as a direct result of those activities. The EAT said he had been automatically unfairly dismissed and sent the case back to the tribunal to decide on remedy.

This case is important during a pandemic, where health and safety activities will often be delegated to members of staff and may be met with some resistance, especially as society opens up. Unless an employee is behaving in a malicious or unreasonable way in relation to those duties, they will be protected from any dismissal relating to the way they have carried out those duties. The messaging in your business in important here. It is important to demonstrate from the top that health and safety duties are both vital and respected. That will guard against a culture of resistance to activities which are designed to keep everyone safe.


Workplace conflict

ACAS has produced a new report called ‘Estimating the cost of workplace conflict’. It presents a snapshot of how conflict can affect businesses and the potential costs that may be involved. The report says that in 2018 to 2019, 9.7 million UK employees experienced conflict at work. Only 5% of those resigned, leaving a lot of unhappy people at work. Of those who remained at work, 40% said they felt less motivated as a result. The recruitment and training of new staff to replace those who have left due to conflict costs businesses around £14.9 billion per year. Conflict related sickness absence cost £2.2 billion.

The report estimates that the cost of management time in dealing with a formal grievance is £951, the average cost of a disciplinary process is £1141. The cost of management time in dealing with tribunal complaints is about £282 million a year, with £264 million spent on legal fees. The report estimates that the overall cost of conflict to employers in the UK each year is £28.5 billion.  That figure shows that conflict can be eye wateringly expensive. At a time where businesses are already struggling, this report offers ideas about how to reduce conflict and its associated costs.

The report gives three strong messages:

  • Good management – managers must be ‘conflict competent’.
  • Timing – line managers should spot and intervene in conflict situations well before formal processes have started.
  • Creativity - there is a natural opportunity for improvement and change where the status quo is challenged, which is a common cause of conflict at work.

Businesses should focus on effective and early resolution of workplace disputes to nip potential problems in the bud, especially when dealing with poor performance and sickness absence. The report suggests disciplinary matters should focus on learning rather than blame. The ultimate aim – for many reasons, not just cost - is to move towards resolving disputes in the workplace rather than in the employment tribunal.

Find the report at https://www.acas.org.uk/estimating-the-costs-of-workplace-conflict-reportF


Fire and Rehire – a review

Should employers be allowed to fire and rehire? In economically hard times, or when a business is restructuring, the ability to change employment terms can be an essential tool. The law does not allow an employer to change employment terms unilaterally, so giving lawful notice and offering a new contract in return is a safer option. It does create a dismissal though, which may be unfair. Unfair dismissals are often defended on the basis of SOSR – some other substantial reason – but the business need only have a ‘sound business reason’ for the contract change, as well as behaving reasonably overall. Is banning a perfectly legitimate process – lawfully ending one contract and offering another – really the answer?

Fire and rehire has been brought into the spotlight recently by the widely reported British Gas case, where employees were given notice to end their existing contracts and asked to agree new terms for lower pay and longer hours. Hundreds refused and so their employment terminated. An Observer poll found that 9/13 companies firing and rehiring this year maintained healthy profit margins. That headline might be misleading, it seems to disregard the fiscal responsibilities businesses have to shareholders and underplays the impact of declining profits. British Gas’s profits have halved over ten years and this year reported its weakest earnings on record. Shouldn’t they be allowed to address that downward trend?

The government asked Acas to investigate fire and rehire and received the report in February this year, but its content has not been published. MPs have debated the issue recently too. Government representatives indicated that they need to tread carefully when considering government intervention in commercial contractual matters between employers and employees. Whilst denouncing ‘bully-boy tactics’, representatives said the government needed to look at the Acas evidence on the flexibility that fire and rehire tactics offer, where the ultimate aim is to save jobs. The government has said they will look at the issue, and the Employment Bill more generally, ‘when parliamentary time allows’, so the can has been kicked down the road for now.

Fire and rehire should always be a last resort. The pandemic has shown that employees faced with the threat of redundancy are often willing to accept new, less favourable terms, in order to protect their long-term employment. Communication is the key here, as is considering what cost-free sweeteners can be offered alongside pay or benefit cuts. The last year has shown us that benefits such as flexible and home working are considered priceless by some employees. Fire and rehire shouldn’t be banned, but it should be used sparingly, when all other methods have been exhausted and there really is no other option.


Shared parental leave

Maternity Action has published a report on how they believe the shared parental leave provisions should be reformed. The charity suggests that the current scheme just doesn’t work. Government data shows that only 3.6 per cent of eligible fathers took shared parental leave in 2019-2020, compared to a government target of 25 per cent. Only two per cent of new fathers took shared parental leave in 2019. The pandemic has increased the gender childcare gap, so the charity is keen to find new ways of supporting working parents.

The suggestion is that the system of sharing or transferring leave between parents has not worked. The report proposes a new system of individual non-transferable rights for each parent. The radical model proposed would replace both statutory maternity leave and shared parental leave, creating a ‘6-6-6’ model. The first six months of leave would be reserved for the mother, followed by six months of non-transferable leave for each parent. The leave could be taken at the same time by parents or one after the other, all in one go or broken down into smaller blocks of weeks or months up to 18 months after the birth.

The report also recommends maternity, paternity and parental leave and pay should be day one rights regardless of employment status. The right to return to the same job after any period of leave should be strengthened, and the statutory leave pay should be increased to national minimum wage levels and potentially beyond. Read the report here:

https://maternityaction.org.uk/wp-content/uploads/Shared-Parental-Leave-briefing-May-2021.pdf


Health and safety – New Laws

New laws came into force on 31 May 2021 which extend the rights under section 44(1)(d) and (e) of the Employment Rights Act 1996 to workers as well as employees. The provisions currently provide protection from detriment to employees who reasonably believe that being at work or doing certain tasks puts them in serious and imminent danger. The change has been introduced because the High Court said in Independent Workers’ Union of Great Britain v Secretary of State for Work and Pensions that the UK had not implemented EU law correctly by excluding workers from this protection.

From 31 May, workers will have the same protection. These new rights will be enshrined in a new section 44(1A) in the ERA. The law will not be retrospective. The alleged detriment – or the last act in a series of detriments, will need to occur after 31 May 2021 for the new law to apply. Businesses must ensure that staff, especially managers, know about this change and understand the legal ramifications, including the potential cost of getting things wrong.

Drinking and substance abuse – is your business on top of this risk?

As we move out of lockdown and return to a sense of normality, many employers are now looking to introduce hybrid working in response to both employee demand and their experience around what jobs are able to be carried out as successfully at home as they can be in the office. 

Some employers are also  faced with a dilemma around balancing their need or desire for their people to return to the workplace and the impacts that  –  an insistence on full-time office hours could have on employees who could become disenchanted through a reluctance to embrace a more flexible working strategy and end up looking further afield for a greater sense of autonomy and better work-life balance.

But whatever your business strategy ends up being, aside from impacts on productivity, culture and the wide range of internal and customer facing issues to be considered, there are some very important employee wellbeing aspect that are important to really think through.

‘90% of people who were working from home in the last year admitted to drinking while working’. This shocking statistic published by Personnel Today following Protecting’s survey of 1,300 homeworkers will undoubtedly make for some grim reading for employers who, given the events of the last year or so, have been forced into allowing a more agile form of working with the Government’s guidance for many months having been to ‘work from home where possible.’

Whilst it is certainly not always possible to identify someone who has been drinking because the signs are not necessarily obvious, spotting someone who is under the influence of drugs or alcohol in the workplace is likely to be easier than when they are working remotely.   Obvious indicators may include erratic behavior, careless mistakes or, particularly in the case of alcohol or cannabis use, smell of the substance in question.  While not all people who behave in an erratic way or make careless mistakes are under the influence (we, of course, need to be mindful of other reasons that these things may occur) this can be a fairly good indicator.

While we cannot necessarily sense when someone is acting erratically over Microsoft Teams or over the phone there are a few tell-tale signs which we can look out for such as persistent lateness to scheduled meetings (particularly first thing if these are penciled in for first thing in the morning);

  • Careless mistakes (especially if the employee was not prone to errors before);
  • Unexplained reductions in the volume of work an employee is producing;
  • Absenteeism (including any peculiar absence patterns); and
  • Changes in usual behaviour.

So the question  becomes how do we balance giving our people flexibility and autonomy where it seems at least from the recent research, that many are at risk of abusing the fact that they have been working from home without being under the watchful eye of management?  It cannot be understated how difficult this balance can be because equally, employers have to be able to demonstrate a level of trust in their employees (bearing in mind that a breach of mutual trust and confidence can lead to constructive dismissal claims for those with over two years’ service).

As a first practical step, it is important to have in place a clear policy when it comes to home working that should  make clear the potential consequences of consuming alcohol during working hours.  In certain circumstances it might also be important to consider  considering introducing a policy around testing for alcohol/ drug use at home although this is a particularly tricky area. 

While testing can be built into an alcohol and drugs policy, often, an employee’s consent is required to undertake such a test.  While employers can, to some extent, rely on the concept that if an employee refuses a test then this in itself constitutes a form of misconduct, this will not always give rise to a safe dismissal. 

In Chivas Brothers Limited v Christiansen, a Tribunal found that an employee who was dismissed after refusing to take a drugs test had been discriminated against on the grounds of his mental impairment.  Similarly, in Ball v First Essex Buses Limited, the employer had a random drugs testing policy and Mr Ball’s test returned a positive result for cocaine.  Mr Ball protested his innocence stating that there were a number of ways the cocaine could have presented itself (he often handled cash, which could have been contaminated and often licked his fingers after checking his blood sugar, as he was diabetic).  Mr Ball took two drug tests on his own which were negative and provided these results to the employer – despite these, the employer relied on their own test and dismissed him.  The Tribunal held that Mr Ball had been unfairly dismissed.

The second case in particular brings us on to an important and difficult point.  Where drug tests are being carried out by employees at home (particularly if these are targeted at people  suspected of abusing substances) there may be a level of scepticism (for example, have they asked someone to take the test for them).  Even where this is suspected, making such an accusation may give rise to a claim that the relationship of trust and confidence between employer and employee has been broken and give the employee cause to raise a constructive dismissal claim.

Unfortunately, given the intrusive nature of drug and alcohol testing it is generally only advisable to conduct such testing when it is absolutely necessary, for example, if there are health and safety obligations tied to the role an employee is performing.

Looking at all of the above, one thing that is clear is that this can be a very difficult area to manage.  Where an employee’s performance or behaviour is affected by alcohol or drugs an employer will need to ensure that it has robust policies in place for dealing with these types of situations.  Where the employee is not based in the office, this is where it becomes much more difficult.  Of course, performance and behavioral issues themselves can be dealt with under a clear  disciplinary/ performance management procedure – however, these are very limited circumstances where conducting drug/ alcohol tests will be appropriate.  In light of these difficulties, many employers take a supportive approach – particularly in cases where there may be drug or alcohol addiction. 

Taking all of the above into account there are a few key points to take away. 

  1. Employers should ensure that they have a clear and robust alcohol and drugs policy in place;
  2. where testing is appropriate employers should ensure that they act with a degree of caution in terms of refusals (and in some cases, even positive results);
  3.  when it comes to home-working employers need to be able to spot the signs of substance misuse and where they occur, know the best way to approach this. For example, building in testing to days when hybrid workers will be in the office can be  far more effective that home testing.

Ultimately, the last year or so has been a difficult one for most of us and given the pandemic’s toll on the mental health of the nation, escapism through substance misuse may be what we are seeing, as opposed to employees abusing their ability to work from home.  Therefore, while we can deal with conduct and performance issues, if there is suspected substance abuse approaching the challenge from a place of support will likely yield greater results in most cases.

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

Global Day of Parents 2021: What can your business do to support working parents?

In 2012, the United Nations assembly (‘UN’) designated 1 June each year as the ‘Global day of Parents’.  The UN said: “Emphasizing the critical role of parents in the rearing of children, the ‘Global Day of Parents’ recognizes that the family has the primary responsibility for the nurturing and protection of children. For the full and harmonious development of their personality, children should grow up in a family environment and in an atmosphere of happiness, love and understanding”

The continuing covid pandemic has placed tremendous strain on working parents all over the world and the UN acknowledge that families have had to bear the brunt of the COVID-19 pandemic, they stated: “As the anchors of the family and the foundation of our communities and societies, parents have the responsibility of sheltering their families from harm, caring for out-of-school children and, at the same time, continuing their work responsibilities. Without support from parents, children’s health, education and emotional well-being is at risk”.  In respect of employment, the UN went onto say: “By introducing family-friendly workplace policies and practices, companies and organizations will be in a better position to promote children’s safety and wellbeing and provide systematic support to employees.”

So what does this mean for employers? As we slowly emerge from lock down restrictions, employers are seeing increasing requests for hybrid working and flexible working to allow parents to spend less time commuting and more time at home with their children.  The pandemic allowed for a ‘mass testing’ of flexible working arrangements and many have found it worked well.  Having said this, it has always been important to balance the needs of working parents against the needs of the business and as the world slowly opens up again, the move towards more hybrid office and home working should allow for a balance to be achieved.  Additionally, focussing on other initiates such as job sharing, compressed working hours, term time working or even simple part time hours are all tools that could be used to further the UN’s objective of supporting parents to support children.

In the UK we are relatively fortunate to have statutory rights that allow employees to apply for flexible working; however, this is not the case across all countries within the UN’s global reach and that can be detrimental for children.  Unicef (the United Nations Children’s Fund), comment that: “with long working hours, many parents miss significant periods of time during the first years of their babies’ lives. They have no option. Family-friendly policies, such as paid parental leave, breastfeeding breaks and childcare, are not a reality for most new parents around the world”.  Whilst the right to apply for flexible working in the UK is engrained in law, there are perhaps more forward thinking initiatives that could also be considered by employers both in the UK and further afield.

In respect of ideas, Unicef  identify 10 ways businesses around the world can help create a more family-friendly workplace, which are as follows: 

“1.    Guarantee that women are not discriminated against based on pregnancy, motherhood or family responsibilities – for example, in relation to employment conditions, wages or career opportunities.

2.    Establish a minimum of six months paid parental leave to ensure parents can spend quality time with their children when they need it the most.

3.    Enable breastfeeding at work through paid breastfeeding breaks, adequate lactation facilities and a supportive breastfeeding environment in the workplace.

4.    Support access to affordable and quality childcare to ensure that children have access to early childhood education and can develop the skills they need to reach their full potential.

5.    Grant flexible working time arrangements through work from home policies and other measures.

6.    Beyond legal compliance, promote decent working conditions such as wages that reflect the cost of living for families.

7.    Address the specific challenges faced by migrant and seasonal workers, such as supporting workers to move with their families, and work with governments to support migrant families’ ability to access identification and other basic services.

8.    Encourage positive parenting practices with staff – for example, develop training and awareness campaigns to highlight the importance of early childhood development.

9.    Promote family-friendly policies with suppliers and other business partners.

10.   Raise awareness among consumers and clients of the importance of early childhood development, including through their own social media and other channels.”
 

On Global Parents Day, why not take 5 minutes to consider if there is anything further that your business could do to help further the UN’s objective of helping parents to support the development of children.

If you would like any further advice on family friendly working practices or adapting your business post pandemic, don’t hesitate to reach out to our expert employment law team for a free consultation or contact us at legal@lexleyton.co.uk . For more information on flexible working requests download our free guide for employers.

Celebrating the different Cultures in Your Workplace

On Friday 21st May, we celebrate World Day for Cultural Diversity for Dialogue and Development. The UN created this day as a result of the destruction in 2001 of the Buddha statues of Bamiyan (Afghanistan) by the Taliban. Unfortunately, it will come as no surprise that three-quarters of the world’s major conflicts have a cultural dimension, and that’s why the UN is set on bridging the gap between cultures.

You may wonder, ‘but what has this to do with Employment Law or my workplace?’. Well, embracing all cultures and differences will not only facilitate world peace, but it will also, on a much smaller scale of course, unlock the full power of diversity in your workplace.

For many businesses, diversity resembles a box-ticking exercise. It’s no longer a secret that a strong workplace is a diverse one because it offers a unique range of skill sets, experiences, and backgrounds to pull from. Additionally, most boards have read studies such as the one published by Deloitte in 2017 stating that 23% of respondents indicated they left their organisations for more inclusive ones. Many companies are building diverse teams to include gender and racial differences but in this day and age, that might simply not be enough. After a few years of making efforts to change their recruitment process and broaden their pools of candidates, many seem to still be wondering, ‘is this really working?’. The answer is rather simple: probably not.

Why? Because if you don’t want homogenous teams producing homogenous outcomes, it won’t be enough to make sure that your teams are diverse. You must make sure they are given the support and the space to be different, to have a voice and to think outside of the box. That’s how you’ll achieve real diversity and receive the full benefits of having a diverse workforce. Diversity is meaningless without inclusion. When employees don’t feel integrated, when their differences aren’t celebrated, it will take a toll on motivation, engagement, and (ultimately) employee retention and turnover rates.

How can you make sure to embrace and celebrate all of your people’s culture?

  • Support the creation of communities within your organisation;
  • Make sure that employees from diverse groups can act as mentors to new recruits;
  • Prevent unilateral decision-making by putting in place more diverse panels;
  • Prioritise having policies in place to demonstrate what’s acceptable and what isn’t and introduce “diversity policies” such as policies honouring a variety of cultural and religious practices;
  • Encourage referrals from current employees of any background
  • Draft an annual Inclusion Calendar that represents your entire workforce;
  • Prepare anonymous surveys and (really) listen to people’s feedbacks;
  • Set inclusion targets that aren’t solely based on recruitment but also on how many people from minorities your business is actually retaining; and lastly
  • Conduct exit interviews – make sure to ask whether they felt included and what you could have done differently.

Creating an inclusive workplace does not happen overnight, it requires a lot of preparation and communication with everyone involved . For employers wishing to know more about what they can do to achieve their diversity & inclusion goals, please don’t hesitate to reach out to us at legal@lexleyton.co.uk .

LexLeyton Spotlight: Anna Chab

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

We have been working from home since March 2020, and - weirdly enough for someone as extroverted as me - I have rather enjoyed it.

I wake up around 7:45 am and drink my first Ricoré (a French instant coffee drink with 63% chicory) with a book. I then (painfully) put on some fitness videos on Youtube and exercise for half an hour. At the moment, I have been loving Holly Dolke’s channel – highly recommended!

At 9 am, we all start the workday with a Team Huddle – a video call which the entire team joins. Before the pandemic, our team was distinctly divided by offices. It’s been amazing to see everyone from our Manchester and Scottish offices every day. It really brought us closer.

My day is then filled with answering clients’ queries, drafting contracts or scripts and administrative tasks until I switch off to prepare dinner!

What is your favourite part about working at LexLeyton?

Everybody at Lex is extremely benevolent; we always help each other if we can. It’s pretty marvellous that we manage to genuinely care about the business but also about each other as individuals.

What are the biggest challenges you face in your job?

The last year has been a difficult one for everyone, and most of our clients have been financially affected. Things were changing quickly but it was crucial that we kept updated with everything happening whilst delivering commercial advice with the necessary amount of empathy.

What is your proudest moment at LexLeyton?

I was extremely happy and proud to qualify as a Solicitor with Lex in September 2020. We were all working from home but everyone made it so special!

What do you like to do in your free time?

I love cooking, I think there are very few nicer things than cooking for loved ones and then sharing a meal.

What is your guilty pleasure?

It’s quite hard to choose one because I have so so many… probably salted popcorn?

I don’t really like the word “guilty”, it gives a bad name to things that simply bring you joy… I shall eat XXL popcorn with my head held high!

What or who inspires you?

Easy – Simone Veil!

What is one thing you can’t live without?

My cats.

What is your favourite quote?

All of my favourite quotes are extremely cheesy. I guess the most appropriate one would be “Those who do not complain are never pitied”.

What is your biggest fear?

I’ve always been very scared of being buried alive by mistake. Apparently, it’s called Taphophobia!

What is something that not many people know about you?

You probably never knew that because it’s very well disguised behind my perfect English accent but… I’m actually French!

Right to Work Checks – Guide for Employers

Employers are required to carry out right to work checks in accordance with government guidance to ensure that their employees have permission to work in the UK. However, with the end of freedom of movement for European nationals and the implementation of a new UK immigration system, employers need to understand the new regime and make sure that they carry out compliant checks.  

Failing to get it right could lead to costly fines and impact on their ability to employ overseas nationals. Here, we look at these changes and the steps employers must now take to ensure compliance with the immigration regime. Unless otherwise stated, references in this article to EEA nationals include EU and Swiss nationals. 

Right to work checks – Obligations on Employers 

All employers have an obligation to prevent illegal working in the UK and this includes carrying out right to work checks on all employees before they start work. If an employee’s right to work is temporary (e.g. because they have a time-limited visa), the employer must conduct a further follow-up check shortly before their right to work is due to expire. 

An employer commits a criminal offence if it knows, or has reasonable grounds to believe, that the person does not have a lawful right to work in the UK. An employer commits a civil offence if it unknowingly employs a person, without the lawful right to work in the UK. The defence to the civil offence is to carry out a compliant right to work check before the person starts employment (the 'statutory excuse'). There is no defence to the criminal offence. 

Right to work checks – Process to Follow 

The right to work check is a three-stage process of obtaining, checking and copying relevant identity documents in accordance with the current government guidance. This is typically done by checking original documents (although there were temporary changes in place to facilitate right to work checks during COVID-19 until the 20th June 2021), but if you have their ‘share code’ checking a job applicant’s right to work details including the types of work they are allowed to do and how long they can work in the UK for (if there is a limit), can be done through the Governments online checking service. 

Whilst right to work checks must be carried out before the employee commences work, it is usually best to conduct these as late in the recruitment process as possible to avoid job applicants arguing that any recruitment decisions have been based on their nationality or their immigration status. 

Making any offer of employment conditional on the individual having the lawful right to work in the UK is also advisable.  

Right to work checks -  EEA nationals 

Following the introduction of the new immigration system, employers should continue to carry out right to work checks on all new recruits. The impact of Brexit and the changes to the immigration system will principally affect right to work checks in respect of EEA nationals. The procedure in respect of non-EEA nationals seeking to work in the UK remains unchanged. 

Under the new system, the majority of EEA nationals who arrive in the UK after 31 December 2020 are likely to require a skilled worker visa in order to be able to work unless they benefit from an alternative route of entry (such as Irish citizenship). 

However, EEA nationals who entered the UK before 11pm on 31 December 2020 have until 30 June 2021 to apply for settled or pre-settled status under the EU Settlement Scheme ('EUSS'). If successful, this will give them the right to work in the UK. Those who have applied by the deadline but are not yet granted status under the EUSS can continue to work in the UK as they do now and maintain their right to work until their application is determined, including pending the outcome of any appeal against a decision to refuse status. Alternatively, EEA nationals and their family members will need to obtain another form of UK immigration status to live and work in the UK after 30 June 2021. 

EEA nationals recruited between 1 January 2021 and 30 June 2021 

For EEA nationals being recruited between 1 January 2021 and 30 June 2021, employers can rely on a passport or national identity card, for example, from an EEA national. Alternatively, if the individual has been granted permission under the EUSS, the individual can choose to share evidence of their right to work using the online service.  

However, in order not to discriminate on the basis of nationality, employers cannot require EEA nationals to show proof of their status under the EUSS, but they may wish to inform individuals of the EUSS and the potential consequences of failing to apply before the deadline of 30 June 2021. 

This does potentially mean that an EEA national could come to the UK on or after 1 January 2021 without the lawful right to work here (i.e. be an illegal worker) and the employer would still have a defence to the civil offence by checking the person’s passport. However, if the employer is aware (or has reasonable grounds to believe) that the person does not have a lawful right to work in the UK, they may commit the criminal offence.  

EEA nationals employed from 1 July 2021 

The Home Office have confirmed that the COVID-19 adjustments for right to work checks will end on 20th June 2021. From 21st June, right to work checks must be carried out using physical documents again, or by using the online service as per this guidance.  

From 1 July 2021 onwards, right to work checks will change and all EEA nationals will be required to demonstrate their right to work through evidence of their immigration status, rather than their nationality.  

The government has stated there will be no requirement for retrospective checks to be undertaken in respect of EEA nationals who were employed on or before 30 June 2021. Employers will maintain a continuous statutory excuse provided the initial right to work check was undertaken in line with right to work legislation and the Home Office guidance.   

One caveat to the position on retrospective checks may be in TUPE situations, where the lawful right to work of any incoming employees should always be verified by a transferee as part of its employee liability information checks and due diligence processes.  

Right to Work Checks – The Importance of Record-keeping 

Employers must retain a copy of each employee or worker’s documentation evidencing their right to work and they must also keep a note of the date the check was carried out. Where a check has been conducted online, employers must keep a record that it has been done by printing out or taking a screenshot of the relevant page. These records of right to work checks should be retained throughout the duration of the employee’s employment, and for a further two years after their employment has ceased.  Employers should have in place a clear record retention policy and schedule, recording the lawful reasons for retaining this data.  

Right to Work Checks - Penalties for Getting it Wrong 

If an employer is found to be employing someone illegally and they have not carried out the prescribed checks, the sanctions may include: 

  • a civil penalty of up to £20,000 per illegal worker 
  • a criminal conviction carrying a prison sentence of up to 5 years and an unlimited fine 
  • closure of the business and a compliance order issued by the court 
  • not being able to sponsor migrants 

The implications of employing illegal workers are significant, particularly given the inclusion of EEA nationals within the new immigration regime. 

Right to Work Checks – Key Steps for Employers 

You should: 

  • Familiarise yourself with the right to work checks for EEA nationals, including what is needed now and what will be needed after 1 July 2021. 
  • Look out for further changes to government guidance in the coming months on conducting right to work checks from 1 July 2021. 
  • Encourage all staff to apply under the EUSS in good time before 30 June 2021, if they are eligible (although this is not a legal requirement).  
  • Ensure you have in place reliable document checking systems to assist with carrying out right to work checks. 
  • Put in place comprehensive and consistent right to work checking procedures, and ensure all necessary staff are appropriately trained in following the procedures.  
  • Keep records of checks carried out for all staff and ensure these records are retained for two years post-employment. 

For more information on the impacts of Brexit upon your current and prospective European staff download our employer guide pack 

For a free consultation, support or advice on any issues raised by the above don’t hesitate to reach out to our employment law expert team on legal@lexleyton.co.uk  

Tackling Loneliness in the Workplace – Employers Guide

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Employment Law Update – May 2021

Worker status

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

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

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

Equal pay

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

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

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

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

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

Discrimination - compensation

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

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

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

Bottom band - £900 -£9,100

Middle band – £9,100 – £27,400

Top band – £27,400 to £45,600

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

Sex discrimination

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

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

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

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

Unfair dismissal

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

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

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

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

Unfair dismissal – Covid-19

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

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

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

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

Disability discrimination

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

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

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

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

Covid impacts on working patterns

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

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

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

Directors' liability

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

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

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

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

Assessing current working practices and H&S challenges arising


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Employment law update – April 2021

Being Paid for Sleeping on Shifts?  

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

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

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

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

Termination agreements

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

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

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

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

Health and safety

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

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

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

Working time

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

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

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

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

Equal pay

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

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

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

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

Religious discrimination

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

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

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

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

Holiday pay

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

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

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

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

Monitoring Remote Working Employees?

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

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

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

Flexible working

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

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

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

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

National minimum wage

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

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

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

Download our handy Key Employment Figures for 2021

LexLeyton Spotlight: Laura Jackson

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

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

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

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

What is your favourite part about working at LexLeyton?

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

What are the biggest challenges you face in your job?

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

What is your proudest moment at LexLeyton?

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

What do you like to do in your free time?

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

What is your guilty pleasure?

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

What is one thing you can’t live without?

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

What is your favourite quote?

“It is what it is.”

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

What is your biggest fear?

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

What is something that not many people know about you?

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


Practical tips for managing stress within your team

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

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

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

  1. Step out of the bubble

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

2.Diagnosis

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

3. Talk to the coach

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

4. Make a plan

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

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

World Autism Awareness Day: focus on neurodiversity in the workplace

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Being faith-friendly – Employer’s guide to Ramadhan

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

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

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

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

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

1. Accommodate flexible working

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

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

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

2. Rest breaks

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

3. Annual leave requests

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

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

4. Awareness, tolerance and understanding

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

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

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

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

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

Kickstart Scheme – Guide For Employers

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

Which employers are eligible?

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

Job placements must:

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

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

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

Which individuals are eligible?

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

How to apply

Directly

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

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

Via a gateway

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

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

What will you receive

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

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

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

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

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

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

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

IR 35

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

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

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

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

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

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

Gender Pay Gap Reporting

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

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

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

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

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

National Minimum Wage Rates

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

Update Statutory Redundancy Pay Calculations

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

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

Family Related and Statutory Sick Pay

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

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

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

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

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

Statutory Flexible Working Requests in a Post-Covid World

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

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

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

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

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

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

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

It’s called a Flexible Working Request

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

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

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

If the request is informal, you have several options:

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

Which staff are eligible to request Statutory Flexible Working?

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

What changes can be requested?

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

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

What process must an employer follow after receiving a request?

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

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

You must:

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

Can I refuse a Flexible Working Request?

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

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

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

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

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

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

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

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

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

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

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

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