with Rishi Sunak announcing financial packages to increase youth employment, is this the time to review your recruitment strategy?

15^th July is World Youth Skills Day.  The United Nations have dedicated this day, as the date to acknowledge and celebrate the importance of equipping young people with skills for employment, decent work and entrepreneurship.  On this day, guided by the United Nations, the world reconsiders their focus in response to the upward trend in the number of youth not in employment, education or training.  Illustrative of this upward trend in the report Global Employment Trends for Youth 2020: Technology and the future of jobs, figures showed that in 2016 there were 259 million young people classified as not in employment, education or training – a number that rose to an estimated 267 million in 2019, and is projected to continue climbing to around 273 million in 2021.

At a time where the world is reeling in the wake of the coronavirus pandemic, what should employers be considering on World Youth Day 2020?  Apprenticeships have always been the obvious solution to youth employment and development, allowing employers to benefit from additional lower cost resource while the apprentice benefits from practical skills development within the workplace and the dual benefit of college driven learning and support.   However, in 2020, could we look further and could we do more?  The answer to this is possibly we can! With Rishi Sunak announcing a number of new initiatives on 8 July 2020, employers now have more options to consider.  The following initiatives have been set out on in the government policy paper “a plan for jobs 2020”:

Kickstart Scheme – The government will introduce a new Kickstart Scheme in Great Britain, a £2 billion fund to create hundreds of thousands of high quality 6-month work placements aimed at those aged 16-24 who are on Universal Credit and are deemed to be at risk of long-term unemployment. Funding available for each job will cover 100% of the relevant National Minimum Wage for 25 hours a week, plus the associated employer National Insurance contributions and employer minimum automatic enrolment contributions.

High quality traineeships for young people – The government will provide an additional £111 million this year for traineeships in England, to fund high quality work placements and training for 16-24 year olds. This funding is enough to triple participation in traineeships. For the first time ever, the government will fund employers who provide trainees with work experience, at a rate of £1,000 per trainee. The government will improve provision and expand eligibility for traineeships to those with Level 3 qualifications and below, to ensure that more young people have access to high quality training.

Payments for employers who hire new apprentices – The government will introduce a new payment of £2,000 to employers in England for each new apprentice they hire aged under 25, and a £1,500 payment for each new apprentice they hire aged 25 and over, from 1st August 2020 to 31st January 2021.  

With the additional financial support available for employers to hire and train our youth, why not take the time to review your recruitment strategy and resource options on World Youth Skills Day? Keep an eye on our communications, as we will update you further when the government provide more information on the development of the above schemes.  Alternatively, if you are considering hiring apprentices, don’t hesitate to reach out to us for a free consultation at https://lexleyton.co.uk/free-consultation/

if a discussion around ensuring that you have the correct apprenticeship agreement in place would help.  There is specific wording that needs to be included in the agreement between the apprentice and the employer; over and above the considerations for a normal contract of employment and this area can be complex.

Social media has thrived during the coronavirus lockdown as housebound people look for a way to stay connected with the outside world. It has also however, come into its own as a powerful tool for disgruntled employees looking to air grievances that they might previously only have raised internally. Apart from the risk of serious harm this can cause to an employer’s reputation, the employee who complains via social media might also have a strong weapon to wield in a potential health and safety claim against their employer.

In the early days of the lockdown, it became common to see employees using social media to complain about their employer’s decision not to place them on furlough leave, which many employees saw as their right. Now, with employers starting to bring employees back to work, some employees are using social media to voice their fears about returning to the workplace. Many of these posts have a health and safety angle as individuals shine a light on what they perceive as their employer’s failure to adequately address the potential risks that Covid-19 poses for those returning to the workplace.

Before an employer rushes to take action against an employee for such social media posts, they would do well to remember the protection afforded to the employee by section 44 of the Employment Rights Act 1996.  It protects an employee from detriment if the employee reasonably believes that the danger to their health and safety is serious and imminent, and that they are taking steps to protect themselves and other persons from harm. 

Covid-19 is likely to amount to a serious and imminent risk in most workplaces. Social media posts could potentially be relied upon by an employee as evidence that they are taking protective steps.  Much will depend on whether the employee could be said to have had a “reasonable belief” that the danger was “serious and imminent”.

The Government has issued substantial guidance for employers on working safely during the pandemic. However, even where an employer follows the guidance (which is varied and is derived from many different and connecting pieces of guidance and directions) diligently a Tribunal might still find the employee’s belief to be reasonable. We are living in unprecedented times and there is as yet no case law on this point to guide us.

So, what can employers do to guard against the risk of trial by social media? The prudent employer should first ensure it has complied with all the necessary health and safety measures stipulated by the Government and the HSE. It should also consult with employees or their representatives about these measures to ensure they are on board with the steps being taken.

Further individual consultation may be required with any employees who have expressed particular reservations about returning to work. This can help dispel worries and prevent them ballooning into entrenched positions. The aim is to avoid the employee feeling they have no recourse but to take public action on social media.

It’s also vital to have a social media policy clearly setting out your organisation’s expectations for employees when they use social media and to train employees on its contents. The policy should describe what the organisation considers to be unacceptable use of social media, such as posts that could harm the organisation’s reputation or that could be considered offensive.  This can be tied into any sector-specific code of conduct that the organisation abides by to ensure that the policy is not impractical and self-defeating. It’s important to warn employees that they risk disciplinary sanctions (including dismissal) for breaches of the policy even if the activity was done during time when they were not at work.

LexLeyton can assist employers with advice on any particular issues arising from employees returning to the workplace. Please contact us at [link to register for a free consultation] if a free consultation to soundboard any challenges that you are experiencing would be of help.

From this month the new Flexible Furlough Scheme is in operation. Under the old scheme an employee had to be furloughed for at least 21 days and could perform no work in that time. The new scheme allows for a furlough of any period and for employees to work part-time. Employees must be paid in full for the time that they are working, with the scheme covering 80 per cent of an employee’s wages for the remainder of the week (capped at £2,500). The Government regards this as part of the process of phasing out furlough altogether by the end of October. For that reason, the Flexible Furlough Scheme is only open to employees who were fully furloughed for at least 21 days under the old scheme. What is more, the number of employees who can be flexibly furloughed is capped at the ‘high water mark’ of employees furloughed under the old scheme. So if the employer had furloughed no more than 50 employees at any one time under the old scheme it cannot place more than 50 employees on flexible furlough.

From August, the employer will have to start bearing some of the costs of paying employees on furlough. At first, they will simply have to pay employer’s national insurance and pension contributions. Then in September, the support provided for employees on furlough will be reduced to 70 per cent of wages (capped at £2,187.50) and in October the Government will contribute only 60% of wages (capped at £1,875). Even in September and October, however, the employer must make up the sum so that the employee receives at least 80% of wages to a maximum of £2,500 per month.

Pressure is now growing on the Government to extend the furlough scheme beyond October for those sectors of the economy that will continue to be hard-hit by the pandemic. That is a big ask of the Treasury given the scale of the intervention that it has already made. Without further measures however, it seems inevitable that large scale redundancies that were avoided in the Spring will dominate the autumn.  The real employment law impact of coronavirus has yet to be felt.

Redundancy

It is now common practice for employers to select employees for redundancy based on their performance at an interview. Often this process appears to be similar to a recruitment exercise, with the employer selecting those who will be offered a place in the new structure.

In Gwynedd Council v Barrett the employees concerned were teachers who were made redundant when the local authority closed the secondary school at which they were employed and opened a new school - on the same site – accommodating both primary and secondary pupils. They applied for posts at the new school but, following a selection process based on an interview, were unsuccessful and made redundant.

An Employment Tribunal found that their dismissals were unfair. One reason for this was that the employees had been offered no appeal against the decision to dismiss them despite the specific requirement in Regulations covering the staffing of maintained schools in Wales that the right to appeal should be given. The Tribunal also based its decision on a lack of consultation throughout the process and the fact that the change in school structure did not necessarily have an impact on their own roles, so the employees were essentially being made to apply for jobs that they already had.

The EAT upheld the Tribunal’s decision. On the issue of a recruitment-style interview the EAT said that the Tribunal had been entitled to find that the employer’s approach had been inappropriate in this case. This was not a ‘forward-looking’ process where the new roles were substantially different from the old ones and the employer had to consider how suitable the employees were to be recruited to them. It was much more akin to a selection for redundancy from an available pool of employees. The Tribunal had been entitled to stress the need for objective selection criteria and proper consultation.

This case does not mean that employers should avoid the use of interviews in redundancy selection exercise. It is important however not to lose sight of the underlying reality of the process. It is the fairness of the dismissal that will be scrutinised in any unfair dismissal claim. Employers will need to show the criteria on which the employee was selected for redundancy and the basis on which they were assessed. Performance in a job interview with no proper assessment of the employee’s actual performance at work is unlikely to be sufficient.   

Wrongful dismissal

An employee dismissed without notice will often claim both unfair and wrongful dismissal. These are two distinct claims. Unfair dismissal is concerned with the reasonableness of the employer’s decision to dismiss the employee. Wrongful dismissal is a contractual claim centred around whether the employer was entitled to dismiss the employee without giving the full contractual notice required. That in turn depends on whether or not the employee was actually guilty of gross misconduct. An employer might reasonably believe that the employee committed gross misconduct and successfully defend the unfair dismissal claim, but lose on the issue of wrongful dismissal because the Tribunal believes in the employee’s innocence. In such a case the employee would be entitled to damages covering the notice that should have been given.

Tribunals still struggle sometimes with the distinction. In East Coast Mainline Company Ltd v Cameron the employee was a shunter in a train depot. He was dismissed when he allowed a goods train to move off while the driver of another train was out of his cabin. The driver was ‘brushed’ by the goods train and could easily have been killed.

At the first hearing the Tribunal found that the dismissal was fair because the employer had reasonably concluded that the employee was guilty of gross misconduct - and dismissed the wrongful dismissal claim on the same basis. The EAT sent that issue back so that the Tribunal could determine whether the employee was guilty of gross misconduct. When the case was re-heard the Tribunal upheld the wrongful dismissal claim. The conduct in question was not deliberate and was a one-off incident of carelessness. Taking into account the employee’s length of service (more than 30 years) what he had done did not amount to gross misconduct.

A second appeal to the EAT led to this finding being overturned. Length of service was not a legally relevant question in a wrongful dismissal claim. What mattered was the seriousness of the conduct itself, not whether it was reasonable to dismiss. A single act of carelessness could amount to gross misconduct if the lapse was serious enough – and it was certainly so in this case where it had very nearly led to a loss of life. Rather than send the matter back to be considered for a third time, the EAT simply held that the wrongful dismissal claim should fail.

Unfair dismissal – gross misconduct

In considering a wrongful dismissal claim, the Tribunal needs to decide whether or not the employee is guilty of gross misconduct. When it comes to unfair dismissal that is precisely what the Tribunal should not do – at least until it comes to assess compensation. It should ask whether the employer reached a conclusion that was reasonably open to it – not whether it agrees with that conclusion. A good example of the wrong approach is the case of Tai Tarian Ltd v Christie. Mr Christie was a maintenance worker for a housing association. He was dismissed when a tenant complained that he had made a series of homophobic remarks when working on her property, making her feel uncomfortable. He denied the allegations completely and argued that his dismissal was unfair.  

The Tribunal upheld his claim. It relied on the fact that the employer had accepted that Mr Christie was not actually homophobic and concluded that they could not have therefore believed that he had said what he was accused of saying. The EAT held that this was clearly wrong and was no basis for finding that the employer had not believed that the comments had indeed been made.

The Tribunal had been entitled to criticise the employer for not allowing the employee to see the full notes of evidence taken from the anonymous witness but had not explained why it was unreasonable of the employer to accept her account. The Tribunal had held that she had embellished her story, but the evidence did not bear that out, showing only minor inconsistencies in the two separate accounts that she had given to the employer. The Tribunal had pointed out that she had a potential motive for fabricating her story (as a result of a previous interaction with Mr Christie) but had not considered whether the employer’s acceptance of her account was reasonable. Clearly the Tribunal had started from the position that it believed Mr Christie’s denials and then worked backwards from there.

The finding of unfair dismissal was overturned, and the case sent back to a fresh Tribunal to be re-heard.  

Right to Work

An employer must be careful to avoid employing someone who does not have the right to work in the UK. Doing so knowingly is a criminal offence and inadvertently employing someone who is working illegally can lead to a civil penalty of up to £20,000 for an employer who has not carried out a proper documentation check. At the same time it is important not to react too hastily in assuming that an employee’s permission to work has expired. A genuine but mistaken belief that an employee is not entitled to work in the UK can be a fair reason for dismissal, but the employer still needs to behave reasonably. Tribunals will understand that an employer needs to behave promptly, but that will not excuse a failure to examine the situation calmly and make proper enquiries – as the case of Sanha v Facilicom Cleaning Services Ltd shows.

Mr Sanha was dismissed when his employer believed that his permission to work in the UK had expired. The Home Office online checking service had no record of him making an application to renew his permission, and the employer therefore believed that they had no choice but to dismiss. As it turned out, however, he had made such an application. What was more, he was married to an EU citizen working in the UK and was entitled to work in the UK on that basis alone. The dismissal was held to be unfair because the employer should have made more detailed enquiries into his status and realised that the application he had made would not have made its way into the Home Office’s system by the time they carried out the check.

The appeal to the EAT was concerned with compensation – should the award be reduced to reflect the contributory fault of the employee? The EAT accepted that the employee’s conduct could be regarded as blameworthy in that he had been less than forthcoming about his correspondence with the Home Office. On the other hand the employer’s decision to dismiss was not actually influenced by the employee’s failure to provide a fuller account of his status. The employer had acted purely on the basis of the results on the online checking service, so the employee’s conduct had not contributed to the decision to dismiss.

Transfer of Undertakings – changing contracts

The Transfer of Undertakings Regulations (known as TUPE) provide that an employee’s terms and conditions cannot be changed because of the transfer of their employment from one employer to another. It has been argued in the past that this provision only applies to negative changes and that actual improvements in terms and conditions can be valid even though a strict reading of the Regulations themselves suggests otherwise. The issue was tested in Fergusen & ors v Astrea Asset Management Ltd in which an asset management company lost the contract to manage a high-value area of real estate in Kensington and Mayfair belonging to the Abu Dhabi Royal Family. This was effectively the only contract the company managed and so it was accepted that all employees would transfer under TUPE. This included the senior leadership and directors who promptly agreed that they should be paid hefty bonuses once the transfer had gone through - and that they would be entitled to generous termination payments if they were dismissed. These changes were incorporated into their contracts of employment and presented to the new employer. The new employer was not impressed and promptly dismissed the individuals concerned – refusing to honour the new terms.

One of the many issues that fell to be considered in the subsequent tribunal proceedings was whether these changes in terms and conditions were valid and binding. The Tribunal held that they were not. The only reason for the changes was that the contracts were being transferred to a new employer. They were therefore void under TUPE. The EAT agreed. The Regulations were clear that any purported change in terms and conditions was void if the reason for it was the transfer itself. That was certainly the case here as there was no other commercial justification for the changes being made. Suggestions that positive changes were permitted were not based on the Regulations themselves which were unambiguous on the point.

Marriage Discrimination

One of the least often claimed grounds of discrimination is marriage and civil partnership. Prejudice against married people is hardly widespread and there are few circumstances in which an employer might treat an employee less favourably because they were married. The case of Gould v St Johns Downshire Hill demonstrates how difficult it is for an employee to make a successful claim of direct discrimination on the grounds of marriage. The Reverend Gould was employed as a vicar in a ‘proprietary chapel’. This is a church which enjoys semi-independent status from the Church of England and the clergy are directly employed by a governing body of trustees under a normal contract of employment. Rev Gould was dismissed by his governing body after serving for some 15 years on the stated ground that it had lost trust and confidence in him.

The governing body had become increasingly unhappy with his conduct, citing a range of governance issues, his lack of communication with trustees and his management of junior clergy. As a background to all of this, however, was the breakdown of his marriage. A number of the trustees took a conservative approach to marriage and believed that a failed marriage would make a minister’s position untenable. Advice was taken from the local bishop who made it clear that any decisions made about Rev Gould’s future should not be based on the state of his marriage but his performance and behaviour in the role.

After his dismissal, Rev Gould claimed that he was discriminated against on the grounds of marriage. He argued that the failure of his marriage was an important part of the background to many of the issues the governing body had with his performance. Had he not been married these concerns could not have arisen.

The Employment Appeal Tribunal (EAT) upheld the tribunal’s finding that there was no discrimination. In a direct discrimination claim the less favourable treatment complained of had to be ‘because of’ the protected characteristic – in this case, marriage. That meant that marriage had to be part of the reason for the decision itself and not just a background circumstance. The fact that the whole situation would have been different if Rev Gould had been single was not sufficient. The Tribunal had found that there were a range of issues quite unrelated to his marriage that led the trustees to dismiss him and that the trustees had followed the bishop’s advice to disregard any concerns they had on that issue. While a dismissal on the grounds that a marriage had broken down could be discriminatory, that was not what had happened here. The fact that some of the conduct for which Rev Gould was dismissed had arisen in the context of his marital problems, did not mean that those problems were the reason for his dismissal.

The issues raised in the case are real enough, however. Too much emphasis on joining in with corporate social activities can certainly amount to indirect discrimination if these are focussed on the interests of the majority. A ‘laddish’ culture could also help persuade a Tribunal that direct discrimination lay behind a decision on dismissal or promotion. This case may have failed on the facts, but that does not mean that employers can afford to ignore the culture they create.

Continuity of Employment

Only employees with two years’ continuous service have the right not to be unfairly dismissed. This qualifying period is measured to the day - so it is important to be clear about precisely when an employee started work.

In O’Sullivan v DSM Demolition Ltd, Mr O’Sullivan claimed unfair dismissal from his role as a Demolition Safety Supervisor. He said that he had been employed from 19 October 2015 to 21 October 2017. In replying to his claim however the employer said that his start date was 2^nd November 2015. That was the date given on his written statement of terms and conditions. It was also consistent with the employer’s payroll records.

Mr O’Sullivan argued that prior to the formal start-date of 2 November 2015 he had already been working for the employer. He had, at the employer’s request, undergone a medical assessment which was a requirement of the certification he needed to work on demolition sites. He had also undertaken some informal work for one of the employer’s clients. However the Tribunal found that he was not paid by the employer for such work – he had actually been paid in cash by the client and the employer was not involved in the transaction. The Tribunal concluded that any work that he had done did not form part of the employment that began on 2 November. The Tribunal held that he did not have two years’ service and dismissed his claim.

The EAT upheld that finding. Mr O’Sullivan’s period of employment did not begin when the contract was first agreed upon. Tasks done in preparation for the start of his employment -such as the medical examination – were not part of the employment itself. The Tribunal was also entitled to find that the work he did on site was not work done under the contract of employment, but was separate and distinct from it.

Constructive Dismissal

A constructive dismissal takes place when an employee resigns in response to a fundamental breach of contract on the part of the employer. A fundamental breach may, if it is serious enough, consist of a single act. It may also be made up of a number of more minor incidents culminating a ‘final straw’. In Williams v Aderman Davies Church in Wales Primary School a teacher resigned and claimed constructive dismissal over the way in which the employer had handled a complex disciplinary case against him. He was concerned that evidence had been withheld and that this was part of a pattern of unfair treatment towards him and a failure take account of his mental health condition.

In the end, his resignation was prompted by the employer’s decision that another employee who was his union representative, but who had also been accused of misconduct in the handling of his case should not be allowed to contact him until after the case was completed. The Tribunal felt that this was not a matter on which the employer could be criticised – although they found much to criticise in the employer’s earlier handling of the case. They therefore dismissed the constructive dismissal claim. The employer could not rely on this decision as being ‘the last straw’ in conduct amounting to a fundamental breach of contract because it was, in itself, innocuous.

The EAT held that this was the wrong approach. What mattered was whether, when the employee resigned, the employer was in fundamental breach of contract. The incident that prompted the resignation did not have to be part of that breach as long as the employee – as in this case - was motivated at least in part by the overall conduct of the employer.

It was true that once the breach had taken place the employee had a limited period in which to decide what to do. Too much of a delay would lead to the employee ‘affirming the contract’ and losing the right to claim constructive dismissal. In those circumstances an entirely innocuous incident could not revive the right to resign without notice. In the case of Mr Williams however, there was no suggestion that the final incident occurred following an unreasonable delay. There were no grounds on which the Tribunal could have found that he had affirmed the contract. What was more, the Tribunal’s criticisms of the employer’s earlier conduct were so severe that it was clear that there had been a fundamental breach of contract. In the circumstances the EAT ruled that Mr Williams had been constructively dismissed.

And finally…

An Employment Tribunal has dismissed a claim that an employer discriminated against the only female member of its leadership team by talking about football all the time. In Liebenberg v DS Smith Packaging Ltd the employee argued that she was regarded as ‘not being one of the lads’ because she could not take part in their sporting discussions over boozy dinners. The Tribunal did point out that the gender imbalance in the leadership team was ‘unacceptable’ – although that is not the same thing as ‘unlawful’ - but it rejected her claim. The real reason for her dismissal (with less than two years’ service) was the employer’s genuine concerns with her leadership style. In fact there was no undue emphasis on football in conversations within the leadership team and the dinners were rather sober affairs with participants generally having about half a bottle of wine each. 

On 10 June 2020, Boris Johnson further eased lockdown restrictions and introduced the concept of the ‘support bubble’.  As we look forward in hope towards the further lifting of restrictions, we look into what this may mean for the world of work and consider how to keep employees engaged on the journey?

Many businesses have had their employees working remotely for months and for most, the majority of their professional interactions have been through voice or video calls.  In the face of continued adversity this ‘new normal’ will continue with no obvious indicator of a date for change.  In respect of the numbers ‘People Management’ magazine undertook a survey of over 500 readers, asking “have the majority of staff returned to work?” 4% responded that their staff returned after the 11^th May Government announcement, 24% responded that ‘staff will return when the Government say it is safe for their sector and 55% of respondents confirmed that ‘most staff will work from home for the foreseeable future’.  With the continued uncertainty, we ask what we have learnt from the past few months and consider where a business may want to be.

Many positive changes have come from the period of enforced homeworking with many conceding that perhaps the old ways of working were not necessarily the best ways?  Do people need to travel to meet face to face or can time and efficiency savings be made by embracing this ‘new normal’?  Can people survive on virtual interactions or do employees need face to face contact to be productive in the long run and do employees need face to face interactions to feel engaged with and part of their organisation?  When considering the answers to these questions alone, a business can merely speculate as to the best way forward, however the route to certainty and increased engagement is to proactively involve employees and to seek their feedback and opinions on what the ‘new normal’ should be.  After all people support what they create.

Whilst businesses had to adapt overnight when lock down was imposed, the current uncertainty of when restrictions will be lifted, presents the gift of time to work out where the organisation wants to be.  Involving employees in this journey will be key to keeping them engaged during such uncertain times.   Focussing on employee engagement in 2009, the MacLeod Review (Engaging for success: enhancing performance through employee engagement) summarised the four key ‘enablers’ of employee engagement as follows:

• Leadership that gives a ‘strong strategic narrative about the organisation’.
• Line managers who motivate, empower and support their employees.
• Employee voice throughout the organisation, to involve employees in decision making.
• Organisational integrity that stated values are reflected in the actual organisational culture; what we say is what we do.

Considering planning for the future through the lens of employee engagement, a business should therefore consider:

• Communicating the visions for the future and setting the direction to shape the values of the organisation. 
• Ensuring line managers are regularly reaching out to employees?  Do managers understand any concerns employees have?  Are managers looking at ways to remove constraints to allow employees to be productive?
• Opening communication channels with employees and soliciting opinions and feedback on how the ‘new normal’ should look.  What makes the organisation different or special?  Which of the business’ core values do employees identify with?  What is out of date and what has changed? What do employees want the organisation to look like in the future and can they help identify the vision.
• Once the strategic direction is communicated and the ‘new normal agreed’ leaders should ensure the strategic vision flows and is reinforced throughout the company via aligned employee objectives, so everyone is working toward a common goal and can clearly see where their individual roles fits within the business.

The future world of work may look different for many, however communicating with employees and bringing them along on the journey, will go a long way to ensuring employees remain engaged with the business moving forward, no matter how uncertain the rest of the world may look. 

June is Pride Month and it usually means weeks of rainbow-drenched parades, concerts and festivals (however, in order to respect social distancing rules, most events will be organised online this year) - but in 2020, why is Pride still so vitally important to celebrate??

Although homosexual acts are no longer punishable by hanging (since 1861) nor are they criminal offences (since 1967) and whilst it is very important to appreciate how far the UK has come on LGBT rights, many significant challenges remain.

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The Government announced on Friday that the furlough scheme will end on 31 October 2020, with contributions required from employers increasing gradually over the coming months.  The key changes impacting employers are:

• From 1 July 2020, employers will be able to take advantage of ‘flexible furlough’, where employees can work part-time while furloughed. 

• Employers will need to place workers on furlough by 10 June 2020, in order to benefit from the new flexible approach to furlough. This deadline is three weeks before the end of the original furlough scheme.  As there is likely to be an urgent need for employers to consider how to make best use of flexible furlough, businesses must act urgently to ensure employees agree with their furlough and that a claim is made via the existing scheme. 

Employer contributions will increase in three stages:

• From 1 August 2020, employers will be required to pay employee National Insurance contributions and pension contributions.  Currently, these costs can be reclaimed through the scheme. 
• From 1 September 2020, the Government will only reimburse 70% of salary, as opposed to the current 80%. Employers are required to contribute the 10% salary ‘top up’ to 80% (or more, depending on what was agreed with the employee). 
• From 1 October 2020, the Government will only reimburse 60% of salaries with employers having to top up their employees’ salary to 80% (or more, as per individual agreements). 

Now that it is clear how the Government will scale back and end furlough, businesses will be in a better position to plan for their workers’ return to work.

For many, however, considering what adjustments need to be made to fixed overheads to continue to weather the ongoing economic challenge presented by COVID-19 is now urgent. The ‘easing back’ of the furlough scheme means that many businesses will now have consider how their operations will need to be restructured. LexLeyton is offering a free consultation to any company which needs support with their business planning, and advice around the impacts arising on their workforce.

Please contact us at legal@lexleyton.co.uk or 020 3949 8230 for further information.

UK Visas and Immigration  - Coronavirus changes:

UK Visas and Immigration and the Home Office have issued new guidance on how they will approach visa expiration issues during the current Coronavirus pandemic.  These largely deal with the practical problem of restricted travel from the UK during the crisis.

Extension of visas:

Those whose visa would otherwise expire between 24^th January and 31^st May 2020 will have their visa extended to 31^st May 2020.  This is due to the travel restrictions which are likely to prevent many people from leaving the UK. 

This will not happen automatically, and those affected will have to email to CIH@homeoffice.gov.uk with various personal details in order to request an extension to their visa.

Switching to a long-term visa:

Those who are looking to apply to switch from a short-term leave to remain to a long-term visa are also being assisted.  For some visas, an individual must leave the UK in order to apply for a long-term visa.  This rule has been relaxed until 31^st May 2020.  Such applications can be made online.

For more information, visit the Home Office’s website at https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents

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Coronavirus was the first matter evoked by the Chancellor of the Exchequer today in his budget announcement.

This is hardly surprising given the impact that it is having across the UK and the globe.

Key points to note are:

• He confirmed that SSP will be paid from day 1 rather than from day 4;
• Small employers with fewer than 250 employees will be refunded for statutory sick pay that it pays to its employees for the first 14 days which will help with the financial strain these employers are feeling;
• Rather than going to the doctor, employee and workers will be able to get a sick note by contacting 111;
• Statutory sick pay will be paid to all employees who are advised to self-isolate even if they don’t have symptoms; and
• Business rates will be abolished for firms in the retail, leisure and hospitality sectors with a rateable value below £51,000

For the full summary of government's tax and spending plans for the year ahead, please see here.

Lexleyton will of course update you as we receive more information.”

The rules on Shared Parental Leave (SPL) and Pay have been in place for almost five years.  Uptake has been low in general, caused by a combination of the complicated nature of the rules and a lack of promotion by employers.  Fortunately, some clarification has arrived which will be helpful in promoting SPL on both of those fronts.  Until recently, the thorny question of enhancing Maternity Pay but not enhancing Shared Parental Pay had been the cause of uncertainty.  Whether this amounted to sex discrimination was the basis of two cases: Hextall v Chief Constable of Leicestershire Police and Ali v Capita Customer Management Ltd, although each argued the point differently.

The Court of Appeal found in both cases that it was not discriminatory to enhance Maternity Pay while only offering Shared Parental Pay (SPP) at the statutory minimum level.  The rationale for the first of these decisions was based on the identity of the correct comparator for a claim of direct discrimination (the correct comparator for a man on SPL is a woman on SPL, as opposed to a woman on Statutory Maternity Leave).  In terms of the claim for indirect discrimination, the Court made reference to the special nature of Maternity Leave (and the consequent more favourable treatment that is allowed under the law for new mothers) along with pointing to the materially different circumstances of women on Maternity Leave and men on SPL.

8 March 2020 is International Women’s day. Having come a long way since the UN first celebrated this day in 1957, there are still areas where inequality for women and girls persists. 

From an early age, boys and girls are unconsciously treated differently which causes discrepancies when it comes to what they think they can achieve. Girls generally perform better at school yet, according to a study conducted by Heidrick & Struggles, only about 5% of working women are in CEO and upper management positions. As highlighted by the Institute for Fiscal Studies, in an overwhelming amount of companies, women do not receive the same promotion opportunities or pay parity with their male counterparts.  

Ensuring that women have the opportunity to participate to their full potential in the labour market provides personal fulfilment and financial autonomy to them, however there are also a wealth of benefits for employers

• It will increase your business’s financial profitability

Diverse workforces generally achieve higher levels of performance in many of the most common metrics used to measure commercial success. According to a study by McKinsey & Company, businesses in the top 25% for gender diversity on their executive team were 21% more likely to experience above-average profitability, than companies in the bottom 25%.

In a survey conducted by Accenture, those numbers are primarily explained by the fact that more women in an office conjures more innovation, as well as more challenging and robust decision-making. An individual’s mindset is invariably shaped by their experiences and ideas. Diverse teams increases the variety of experiences that team can bring to bear.  Practically, it is a reasoned hypothesis that a diverse team is more likely to examine business strategy and challenges from several angles.  Solutions become more informed and optimised as a result.

• It will improve your business’s reputation

In this modern age of digital advertising, social media and other ultra-fast communication tools, news travels fast. Businesses that have a track record of giving equal opportunities for promotion and development to every employees obtain both reputational and commercial advantages. 

Being an inclusive company is also crucial for companies to attract new customers. A demonstrable culture and ethos of inclusion permeating a business may be critical in situations such as tendering for contracts.

• It will widen your talent pool

In any industry, it makes little sense to draw from a smaller source of potentially suitable candidates.

That means that the reward that comes with developing, retaining and advancing women is significant: it allows companies to tap into the broadest possible pool of talent.

The upcoming generation of workers, for example, harbour forward-thinking and inclusive perspectives and expectations when it comes to working in a diverse environment. 

What does this all mean on a day where we celebrate womanhood? It means everything. The direction of travel is in recognising and appreciating the commercial, ethical and moral power of feminism. In business, more power to women is often aligned to more success. This international Women’s Day, we will raise a glass to that.

In a sneak preview of the Government’s proposed emergency legislation to deal with Coronavirus, Boris Johnson used today’s Prime Minister’s Questions to announce his intention to relax the rules on Statutory Sick Pay (SSP).

With the prospect of widespread absence from work, there has been a great deal of comment on whether the current rules on SSP go far enough to protect workers who are unavoidably unable to come to work.  The weekly rate of SSP is currently £94.25, rising to £95.85 from April.  SSP is payable from the fourth day of absence, with the first three days termed ‘waiting days’.  Crucially, not all absent workers are eligible to receive SSP – in line with many employment-related payments, it is subject to the Lower Earnings Limit, which is currently £118 per week.  Frances O’Grady, General Secretary of the TUC, and Jeremy Corbyn have pointed out that there are, by their estimation, two million workers who fall below this limit and who will receive no SSP. 

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The Government’s proposal is to remove waiting days and therefore to make SSP payable from day one.  In the announcement, the Prime Minister appeared to tie this move to the expected need for a period of self-isolation – a step which he underlined that the Government has not requested from the workforce to date.  Jeremy Corbyn has sought to describe the situation facing workers as a “terrible choice between health and hardship.”   In response to questioning, the Prime Minister suggested that nothing will be done to remove the Lower Earnings Limit from the eligibility criteria; rather, the application process for Universal Credit may be amended.

The Government has a difficult job in balancing the need to respond to a potentially damaging virus with the need to protect employers – since 2014, companies have no longer been able to reclaim SSP from HMRC and therefore foot the bill themselves.  While removing the Lower Earnings Limit would extend SSP to those low-paid workers who will miss out, the Government has consulted on ways of reforming SSP on various occasions over the past few years and these consultations have not suggested such a move. 

With the potential scenario of a large number of workers taking time off due to Coronavirus itself and the potential of two weeks of self-isolation thereafter, the cost to employers could conceivably be huge.  The Government’s proposal appears to take a middle ground somewhere between maintaining the status quo and relaxing the SSP rules fully.  In terms of the financial impact on employers and employees, this approach is better news for both and strikes a much-needed balance.

The rhetoric of the Prime Minister has perhaps belies the fear that employers will have.  His continued repetition of self-isolation being an example of workers “doing the right thing” carries a certain implication.  Where self-isolation is necessary, clearly it is the ‘right thing’ in dealing with a potential medical crisis.  However, self-isolation for the sake of it (or where this might be an abuse of the current situation) is not to be rewarded.  Employers have ways of ensuring that absence is genuine and also the power to make sure that those workers who are “doing the right thing” do not suffer as a result of this.  Although the development of the virus is hard to predict, a common sense approach from all parties will hopefully prevail to allow businesses and workers to respond to any threat in a measured way. Ensuring you have a clear policy and procedure that will enable you to implement and manage the new rules is vital. Contact us if a free consultation will help your plan to get ready for the change.

Zero Discrimination Day is observed every year on 1^st March. Although the day is universal in nature and aims to highlight issues related to discrimination in general, there is a particular focus on HIV, AIDS and other health-related issues.

The HIV virus attacks the immune system and weakens the body’s ability to fight infections. AIDS is the final stage of HIV infection when the body can no longer fight certain infections and diseases. While there is no cure for HIV, there are treatments available that can alleviate symptoms and enable infected individuals to live relatively normal lives.

HIV is deemed to be a disability under the Equality Act 2010 from the point of diagnosis. An employee with HIV does not have to notify their employer of their diagnosis. If they do, then the employer must ensure this sensitive information is kept confidential and is only disclosed to others with the employee’s express consent.

Where an employer is aware that a particular employee has HIV, they must consider what reasonable adjustments they may need to make. The employer must also take care not to subject the employee to any detriment as a result of their medical condition as to do so could amount to disability discrimination.

Certain jobs might be off limits to an HIV positive employee, particularly types of work where there may be contact with blood or body fluids. Examples include work in health care and social services.. However, careful risk assessing any specific role would be fair and reasonable, so as to avoid making any discriminatory presumptions.

Discrimination does not occur in a vacuum. A December 2019 report by the Office of National Statistics on disability pay gaps in the UK found that in 2018 disabled workers faced a startling 12.2% pay gap compared to non-disabled workers.  The pay gap varied depending on the type of disability suffered. Workers who suffer from progressive illnesses such as HIV suffered a pay gap of 7.4%. This inequity has led to increased calls for pay gap reporting to be extended from gender to race and disability as well.

There is an ever growing body of evidence showing that increasing diversity and removing discrimination in an organisation increases profitability and innovation.  Further, there are links between increased diversity with stronger corporate governance and problem-solving. In short, the resilience and effectiveness of a business can often be directly connected to a diverse and inclusive environment. 

Successfully sustaining a culture where all employees thrive in an environment free from discrimination should be the aim of all businesses and those who have achieved that status, which is still too rare should be rightly proud to be leading the way in making the working world a better place for all. If you would like a soundboard on how to increase inclusivity and diversity in your business get in touch. It really could be the best step you could take in building a business fit for a sustainable future.

In the week when the UK Government announcing proposals for a points-based immigration system, we consider the position of the EU citizens already living and working in the UK.  3.2 million applications have already been received by EU citizens seeking permission to remain and work in the UK. With business leaders concerned about meeting the flexibility of the UK workforce to meet future labour market demands, here is LexLeyton’s guide on what UK employers ought to know about the EU Settlement Scheme.

Even though freedom of movement continues to apply for EU citizens during the transition period, on 31 December 2020, EU citizens will no longer have an automatic right to live and work in the UK.

EU citizens currently living in the UK need to apply for ‘settled’ or ‘pre-settled’ status before 30 June 2021 under the EU Settlement Scheme.

30 June 2021 is the deadline for applying; not for being granted either settled or pre-settled status.

Section 47B of the Employment Rights Act 1996 says that an employer must not treat a worker badly (subject them to a detriment) if they have 'blown the whistle' on wrongdoing (made a 'protected disclosure'). In Tiplady v City of Bradford Metropolitan District Council, the Court of Appeal looked at what being treated badly 'in employment' means.

The employee was a senior planning officer for the Council. During her employment, she was also in contact with the Council as a householder about sewer issues and building a shed on her property. The employee thought the Council dealt with these issues unreasonably. She resigned and claimed she had been treated badly because she had blown the whistle on the sewer and shed issues.

The employment tribunal said that she could not bring whistleblowing claims under section 47B. She had 'blown the whistle' as a householder rather than an employee. Any detriment was levelled at her in a private capacity and not as an employee. (The tribunal didn’t much like the facts either, saying that the detriments either hadn’t happened or were unrelated to a protected disclosure.) The employee appealed. The Employment Appeal Tribunal and the Court of Appeal agreed with the employment tribunal. The question was whether any detriment had been suffered 'as an employee'. In this case any alleged detriments were levelled at the employee as a householder and not as an employee. She couldn’t bring a claim under section 47B.

This situation will be rare but might be helpful to businesses who provide services to individuals who also work for them. Although detriments in a field other than employment can't be actioned under s47B, retaliatory treatment should always be avoided in business. It's better to deal with issues head on rather than trying to dodge them.

The Equality Act 2010 sets out the law in relation to equal pay. Male and female workers should be paid the same for doing the same job (like work), work which is given the same rating under a job evaluation scheme (rated as equivalent) or work of equal value, unless there is a reason for the pay difference that is not discriminatory. This non-discriminatory explanation is called the 'material factor defence'. It means that there is something (a material factor) other than discrimination which explains the pay difference. If a man is paid more than a woman doing the same job because the market rate for the job was higher at the time of his recruitment, that might be a material factor defence.

Equal pay has hit the headlines recently. The BBC's Samira Ahmed won her case for equal pay. The employment tribunal agreed that her work on Newswatch was 'like work', or work of equal value, to Jeremy Vine's job on Points of View. The BBC were unable to show that the difference in pay was due to something other than sex discrimination.

What do high paid BBC executives have to do with small businesses? The BBC equal pay cases are a reminder of how unequal pay between the genders is still a problem, even when the individuals are in plain sight in front of a national audience. The best way to avoid equal pay claims is to have transparent processes for determining pay, with jobs rather than people determining pay rates where at all possible.

Are you doing enough at work to contribute to your employees' happiness? In his new book 'Can we be happier? Evidence and Ethics', Richard Layard looks at happiness in general in the modern world. He advocates the Happiness Principle, where people should aim to produce the greatest happiness possible and create the least misery. He looks at how employers can play a part in this plan.

Layard quotes a study by Daniel Kahneman which looked at the times of day which are happiest for people. The study found that the worst time of day is when an employee is with their boss. The study also found that most people don't like their jobs. It's difficult for employers to change the work that people are employed to do, but Layard says there are things that employers can do to improve happiness among employees:

• Allow workers to influence how work is organised;
• Reward team rather than individual performance;
• Appoint managers who can inspire and lead effectively;
• Run courses on wellbeing;
• Take mental illness seriously, with managers who can spot it and know where to get help.

Employee happiness isn’t the only gain here. Happy employees are likely to be more productive, more willing to go the extra mile for their employer. Greater productivity means greater profit. And that will make employers happy too.

You may remember that the Low Pay Commission reported to government back in Autumn 2019 and recommended increases to the national minimum wage and national living wage. The national living wage is the minimum pay required for workers who are aged 25 and older. It is a legal requirement to pay the national living wage where it applies rather than a choice.

From April 2020, these changes to minimum hourly rates will come into effect:

• NLW for workers age 25 and over – from £8.21 to £8.72 per hour;
• NMW for workers aged between 21 and 24 - £7.70 to £8.20;
• NMW for 18-20 year olds - £6.15 to £6.45;
• NMW for 16 and 17 year olds £4.35 to 4.55;

The NLW is expected to rise to £10.50 per hour by 2024. There are also plans to reduce the age at which the NLW applies from 25 to 23 by 2021, and to 21 within 5 years.

These pay rises, all of which are well over inflation, will add up. They will have a particular impact on small employers, especially in a time of economic uncertainty. The Federation of Small Businesses has said the wage hikes might result in lower recruitment, cancelled investment plans and redundancies. The BBC reports that businesses have urged the government to reduce costs elsewhere. Look out for further developments.

Employers must protect their workers from discrimination and harassment. An employer will be legally liable for harassment at work if they have not taken reasonable steps to prevent it. The Equality and Human Rights Commission has published some technical guidance on sexual harassment and harassment at work.

The guide is quite long at 84 pages but is very readable. It takes the reader though the legal definitions of harassment in relation to a range of protected characteristics such as race, age and sex. The section on harassment (section 2) is particularly helpful at demonstrating what harassment can look like at work. The guide also covers victimisation, the legal claim an employee can bring if they are treated badly by an employer after raising allegations of discrimination or harassment. Victimisation can play a role in employees not reporting harassment. The guide contains helpful examples, some of which are based on real cases.

The most useful part of the guide for employers is section 5 which sets out how to prevent and respond to harassment as an employer. It takes a tour through the importance of policies and procedures, including helpful guidance on what a good policy should contain. It also contains guidance on detecting harassment, assessing risks relating to harassment in the individual workplace and responding to harassment allegations when they are made. Read the guidance here:

https://www.equalityhumanrights.com/sites/default/files/sexual_harassment_and_harassment_at_work.pdf

Many employers automatically suspend an employee accused of misconduct while they investigate the allegations. Many employees don’t object. The employee in Harrison v Barking, Havering and Redbridge NHS Trust did object and brought a claim in the High Court to stop what she said was an unfair suspension.

The employee was Deputy Head of Legal Services. She was suspended from work due to allegations about her handling of a clinical negligence case. She wasn’t provided with the details and ended up going off sick with stress. The employer asked her to return to work on restricted duties. When she refused, she was suspended for failing to follow a management instruction. The employee brought a court claim for an injunction to stop the suspension and return to most of her normal duties. She said the employer's behaviour in suspending her breached the duty of mutual trust and confidence.

The High Court granted the injunction. There were strong grounds for arguing that the suspension breached mutual trust and confidence because there was no reasonable or proper cause for suspending her from most of her duties. The employer's arguments purporting to justify suspension – namely criticisms of the employee's work – came after the decision to suspend rather than before and no evidence had been provided.

Injunction proceedings are rare in employment cases. However, this case is a reminder that knee-jerk suspension decisions can come back to bite an employer. ACAS recommends that suspension should only happen in misconduct cases when the allegation is serious and when there has been a severe breakdown of the working relationship, or there is some other risk, such as the employee interfering with evidence or witnesses. Employers should always consider other options first, such as a temporary team move or different hours of work.

An employment tribunal has recently looked at indirect discrimination and how it applies to dress codes. Indirect discrimination is where an employer applies a policy or practice to all employees, but which negatively affects a particular group who share a protected characteristic (as well as the individual employee). The employer can defend an indirect discrimination claim by showing that the policy is justified as a proportionate means of achieving a legitimate aim.

In Sethi v Elements Personnel Services, the employee was a Sikh who adhered to Kesh, the requirement not to cut body hair. He was seeking work through a temp agency which worked with five-star hotels. The agency had a 'no beards' policy, on appearance rather than health and safety grounds, allegedly due to client demands. When he was told that he would not be given work unless he cut his beard, he brought an indirect discrimination claim.

The employment tribunal said that the 'no beards' policy which applied to everyone placed Sikhs in general, and the employee in particular, at a disadvantage. They said that the agency's aim of meeting client demands was a legitimate one. However, the blanket ban was not a proportionate means of achieving the aim. Instead, the agency should have put the employee on the books and sought specific exceptions based on his Sikh religion as and when required. The agency hadn’t even asked its clients whether they would make an exception for a Sikh worker. Not all the hotels had a no beard requirement anyway. The agency had indirectly discriminated against the employee.

Although this case doesn’t create new law, and isn’t binding on other employers, it is an important reminder about the potential pitfalls of dress and appearance codes. Employers must ensure that dress codes or appearance policies do not negatively impact on people who share particular characteristics in a way that cannot be justified.

A fair dismissal must be preceded by a reasonable investigation, to establish the facts of the case. The ACAS code says that the investigation might involve an investigation meeting but will sometimes involve the collection of evidence for use at the disciplinary hearing instead. The Employment Appeal Tribunal in Sunshine Hotels v Goddard has analysed what a reasonable investigation looks like.

The employee was accused of sleeping whilst on duty at the hotel. He was suspended pending an investigation. The investigation involved the manager watching CCTV footage of the hotel. The employee was sent a letter inviting him to an investigation meeting on 16 April, saying there would be a disciplinary hearing if there was any substance to the allegations. The 16April meeting turned out to be a disciplinary hearing at which the employee was dismissed. The employment tribunal said the dismissal was unfair because there had not been a proper investigation. The employer appealed because the employment tribunal appeared to suggest that a separate investigation hearing was required in every case for a dismissal to be fair.

The Employment Appeal Tribunal dismissed the appeal. The tribunal's decision was based on the lack of a proper investigation overall, rather than the lack of an investigation meeting. Looking at the CCTV wasn’t enough investigation. The employer could have walked the usual patrol route with the employee to see whether it naturally bypassed CCTV as the employee alleged. Whether that investigation took place by way of a meeting or another method was irrelevant, but neither were done in this case. The employee didn't know enough about the allegations at the outset of the disciplinary hearing to defend himself properly, not least because he thought he was attending was an investigation rather than a disciplinary hearing.

This case confirms that an investigation meeting is not always required, but an adequate investigation is. Employers must ensure that they gather all the relevant facts before any disciplinary hearing. In cases such as this, where someone is accused of misconduct and offers an explanation, those explanations should be investigated before any disciplinary hearing takes place.