Business bounce – top tips to benefit your recruitment strategy

The level of restructuring and redundancy exercises over the past 12 months has been staggering. Businesses across almost all sectors felt the squeeze of the pandemic.  The seemingly inevitable headcount reductions were abated by the Coronavirus Job Retention Scheme, however the UK still finds itself with the largest number of unemployed people of working age in forty years.

Our recent experiences with our clients, trade association partners and wider network do suggest that green shoots of recovery are beginning to emerge.  With positivity spreading at news of the vaccination roll out gathering pace, and promises of restrictions easing, many businesses previously forced into limbo can now realistically forecast when they will begin to trade again. Following months of damaging cash burn, false re-starts and uncertainty prolonged by the slow crawl towards March’s UK Budget, the industries hit hardest by the pandemic (hospitality, leisure, tourism and oil & gas for example) approach the idea of being able to bolster staff numbers with cautious optimism.

Of course, many options exist to expand your workforce, covid-permitting.  Businesses operating offshore, in tech, engineering and financial services may still look to maintaining an elastic cost base through a blend of employees, workers and off-payroll contractors.  Hospitality, leisure and tourism’s traditional variable-hour workers will also be highly sought-after.  Some  UK businesses may not have a sufficient number of people to meet their projected demand, for example if they required to make redundancies in order to survive.

Anticipating that we may reach a point this year where restrictions ease overnight, it is vital that a clear expansion strategy is prepared by any business not wishing to be left behind in the recruitment race.

So what should businesses be doing now around their expansion strategy?  We share three key steps, with expert input from recruitment specialists, around how your business should prepare.

Make your company attractive

As a business, it is so important to demonstrate your values and your culture to potential candidates. 

Katie Drummond, Director at Syme Drummond explains

“There are lots of areas that companies will need to consider but company culture is right at the top of that list when it comes to talent attraction and ensuring your employer brand stands out from the crowd. Most remote workers we have spoken to have expressed a desire to continue to work remotely after the pandemic is over.”

Embedding a culture that will pair commercial gain with employee engagement is desirable.  The key ‘enablers’ and considerations in successfully marrying these two objectives are summarised here.   It is likely that after the mass migration to home working in 2020, a clear, progressive position on agile working will be crucial in attracting quality, diverse candidates.  Drummond agrees:

“Even if 100% remote working is not an option for your business, you are still going to have to factor in more flexibility and agile ways of working in 2021 if you wish to attract the top talent.”

Expand your mind (and your candidate pool)

Building on the concept of opening a varied, high quality candidate pool, Simon Stratford, Talent Acquisition Manager of Leyton UK hopes to see a shift towards increasing competency focus:

“You will be able to find skills and experience that pre-lockdown you may never have considered which will strengthen your workforce for the new way of working.

A change in focus is now needed with more attention being paid to what a person is capable of achieving rather than what they have achieved in the past. This can be uncovered using more in-depth screening techniques such as competency-based frameworks.

One other thing to bear in mind is that candidates’ expectations of an employer will now also have changed. With working from home and an increased level of flexibility now the norm, many job seekers will expect this moving forward.”

Katie Drummond believes there is also huge benefit in a demonstrable commitment to diversity in talent acquisition, from candidate scouting, scoping job specifications through to selection:

“Individuals looking at job adverts want to see increased diversity so companies need to consider what this looks like in their business. Establishing a diverse workforce has already been proven as beneficial, encouraging collaboration, enhanced team creativity, faster problem-solving and greater employee engagement. As the benefits become more apparent, it is vital in-house recruiters eliminate bias as much as possible, using inclusive advertising and carefully designed recruitment processes to ensure a fair process for all.”

Remember, if recruiting from the EU, EEA or Switzerland, you must have an eye on the post-Brexit right to work rules. Lexleyton’s Right to Work Pack can be downloaded here.

Have a slick recruitment process

Few things would turn a candidate off your company like a clunky, inefficient recruitment experience. If your business is in a position to recruit, it is likely others will be doing the same. An efficient, positive and proactive candidate experience will increase your chances to securing your desired people.

Gillian Dolan, Regional Manager at REED Specialist Recruitment summarises this point succinctly:

“Don’t wait for the right candidate to appear in response to your advert. The competitive nature of the market, especially in cities, is making it less and less likely that the right candidate will see your advert at the right time and apply for it. Be proactive and cover the market to make sure your opportunities are being promoted properly.

Move quickly if you can. The best candidates will often receive multiple offers and the having a concise, effective process can be the deciding factor in a candidate’s decision-making.”

If you would like a free consultation with one of our specialist team of employment lawyers around key people management areas that would help ready your business for bounce back, don’t hestitate to reach to us at legal@lexleyton.co.uk

LexLeyton Spotlight: Simon Mayberry

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?

In a word – busy!  The main reason I chose to specialise in employment law was because I enjoyed the contact with people, so I am pleased that a typical day involves a lot of client meetings, calls and emails.  Given the frequent changes in the law due to Covid-19, we spend a lot of time workshopping particularly tricky queries and preparing updates and documents for clients, to keep them ahead of the game.

I also undertake quite a lot of litigation on behalf of clients, which requires daily attention, along with preparing and delivering seminars for clients and prospective clients.

What is your favourite part about working at LexLeyton?

Working with great colleagues and great clients.  Employment law is incredibly interesting, challenging and fast-moving, so each day I spend a lot of time meeting with clients and colleagues and looking for ways to solve potentially tricky issues.

What are the biggest challenges you face in your job?

Over the last year it has definitely been the pace of change in the law and the lack of clarity in guidance from the Government.  We are used to well thought out and clear legislation, but the way in which Covid-19 has developed has led to a great deal of non-statutory guidance online creating rules which seem to change from week-to-week.

While this has definitely been a real challenge, it has been fun responding to the lack of clarity by taking a considered view and advising clients on my interpretation of the guidance.  I am not a fan of sitting on the fence!

What is your proudest moment at LexLeyton?

The past year has seen us make huge efforts for clients in their struggles with the impact of Coronavirus.  We have delivered countless webinars, updates and provided documents for clients in order to keep them ahead of the game.  It has been a real team effort and I am really proud that we have helped so many companies to survive the trials of 2020 and be in a strong position to bounce back in 2021.

What do you like to do in your free time?

I love sport, so the Covid-19 restrictions have been particularly annoying for me!  However, I have found that I really enjoy walking in the hills around Edinburgh so that has been really valuable.  In normal times, I also love travel so I am itching for restrictions to be lifted so that I can get away again!

What is your guilty pleasure?

I’ve recently given up sugar, so there aren’t many guilty pleasures left!  On the plus side, I think that eating Nutella or Biscoff spread from the jar is probably not recommended by doctors or dentists, so perhaps this was a good guilty pleasure to stop! 

What is one thing you can’t live without?

Holidays!  When lockdown was lifted in Scotland in summer 2020 I managed to fit in three trips to the wild North of Scotland in six weeks!

What is your biggest fear?

For some reason, I really don’t like things that reach deep underwater – I really have no idea where this fear came from!  So, my biggest fear is a tie between oil rigs and the legs of bridges.  It’s not one that comes up much in my day-to-day life, but still – terrifying!

What is something that not many people know about you?

Over the course of two weeks, I managed to stalk down and meet 11 of the 15 members of the Scotland 1990 Grand Slam winning rugby team.  I don’t even think that ‘stalk’ is the wrong word – I turned up at some of their houses…

I did it for a speech at my rugby club and got an offer of a legal traineeship from it.  Also none of the players called the Police so it worked out quite well, all things considered.

Data Protection after Brexit: what’s changed?

In case you missed it, the UK officially left the European Union following the end of the transition period on 31 December 2020. It was European law that provided us with everyone’s favourite piece of legislation, the GDPR, so what does Brexit mean for data protection laws in the UK?

Good news can be a bit thin on the ground at the moment, but if data protection is your thing then we have some for you: all that time spent on getting your head around the GDPR wasn’t in vain as the GDPR isn’t being replaced. Instead it is being incorporated into domestic legislation and will now be known as the UK GDPR. The original piece of legislation will now be referred to as the EU GDPR.

Trying to understand all of the legal jargon involved in both Brexit legislation and data protection rules can leave you needing to put a cold towel on your head. Here, we have tried simplify the position as to what businesses need to know about data protection after Brexit. 

Kicking off with a quick bit of jargon busting: the GDPR applies to all member states of the EU but also to all countries in the European Economic Area (EEA) too. That’s why you will see both the EU and the EEA referred to in this article.

Transfer of data from the EEA to the UK

The EU has agreed that the UK will continue to be treated as if it is an EU member state until the end of June, which means that, for now, EEA enterprises will not have to take any additional measures when transferring data to the UK.

Between now and the end of June the EU could make an ‘adequacy decision’ regarding the UK’s data protection legislative regime. This would mean that the EU deems the UK’s data protection laws sufficiently adequate that data can continue to flow from any EEA country to the UK as it does now, without additional measures being required.

It would be very surprising if the EU didn’t make an adequacy decision in favour of the UK, not least because the UK’s data protection laws are derived from European law. However, in theory the UK could act to change the UK GDPR between now and then, and if such changes didn’t align with the EU GDPR then it could be that all bets are off.

Transfer of data from the UK to the EEA

The UK has deemed EEA member states to be adequate on a transitional basis. This means the UK has also decided the EEA has adequate data protection laws in place so that data can continue to flow into EEA member states as it does now. The transitional bit refers to this just being a temporary decision, but it’s likely to last for a couple of years, by which time the UK will have conducted a formal and more permanent assessment of adequacy of the EEA.

Transfer of data from the UK to a third country

The position prior to Brexit was that any transfer of data to a third country (any country that isn’t in the EEA) had to be by way of standard contractual clauses. This is a set of standard contractual terms and conditions that the data sender and the data receiver had to enter into to ensure that the data being transferred was adequately protected. The UK GDPR has adopted standard contractual clauses so this position remains unchanged.

So is there anything businesses need to do?

Whilst the ICO has welcomed the interim arrangements, it continues to recommend that, during this grace period, businesses carry on working to identify any requirements to put in place alternative transfer mechanisms in respect of EEA-UK data flows to protect against any disruption to the flow of UK-EEA data, or in case the EU does not grant the UK an adequacy decision.

Businesses should also note that the interim arrangements set out in the UK-EU trade deal do not relieve businesses in either the UK or the EEA of their obligation to appoint an authorised representative where they provide services to or monitor behaviour of individuals in the EEA or UK respectively.

The ICO has been busy making examples of high profile companies who have breached data protection laws and issuing them with hefty fines, so now is a good time to health check your data protection compliance. Contact us for a free consultation to discuss how we can help you to understand what your HR and employment law related data protection obligations are, and how to ensure your business is compliant.

IR35 rules change in April – is your business ready?

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

What is IR35?

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

Does IR35 apply to my business?

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

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

What do I need to do?

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

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

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

Employers beware: Covid-19 and self isolation – not trusting employees may result in more than you bargained for

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

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

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

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

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

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

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

Positive Action – why employers should dare to dream

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

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

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

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

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

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

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

Employment law update – January 2020

What will Brexit mean for the future of employment law?

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

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

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

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

Employment tribunal procedure – ACAS uplifts

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

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

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

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

Indirect discrimination

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

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

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

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

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

Dismissals for Redundancy

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

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

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

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

Whistleblowing

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

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

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

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

Unfair dismissal and redundancy

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

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

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

National minimum wage

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

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

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

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

Constructive dismissal and maternity leave

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

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

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

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

Breach of contract

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

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

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

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

And Finally…

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

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

LexLeyton in the news

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

Yorkshire Times: Business Responds To Treasury Business Support Announcement

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

Business Advice: Unfair dismissal – a concise guide for employers

Reasons to be positive in 2021

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

Reasons to be positive in 2021.

COVID Certainty

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

Growth

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

Brexit

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

Diversity

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

Community & Culture

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

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

Financial inclusion – Is your employee’s financial health impacting on your business?

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

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

The reality of the situation?

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

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

Financial Inclusion

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

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

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

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

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

LexLeyton Spotlight: Rosie McArdle

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

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

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

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

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

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

What is your favourite part about working at LexLeyton?

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

What are the biggest challenges you face in your job?

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

What is your proudest moment at LexLeyton?

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

What do you like to do in your free time?

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

What is your guilty pleasure?

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

What or who inspires you?

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

What is one thing you can’t live without?

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

What is your favourite quote?

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

What is your biggest fear?

I am not very good with heights!

What is something that not many people know about you?

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

What Rights do your Agency Workers actually have?

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

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

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

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

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

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

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

Hiring Sight Impaired Workers

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

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

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

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

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

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

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

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

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

Furlough extended to end of April 2021

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

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

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

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

The updated key dates are:

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

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

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

Dealing with Conflict – Top Tips for Managing Issues Remotely

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

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

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

Tension and Conflict – how to manage issues remotely

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

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

1 – Prevention is better than cure:

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

2 – Be aware of simmering tensions:

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

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

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

4 – Set clear expectations in respect of conduct.

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

5 – Deal with individuals who are causing issues:

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

When problems escalate:

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

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

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

Gender reassignment need not be a medical process

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

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

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

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

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

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

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

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

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

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

International Day for Persons with Disabilities

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

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

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

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

Supporting Disabled People at Work – what can you do?

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

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

Business Benefits of being Disability Confident

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

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

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

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

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

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

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

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

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

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

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

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

Employee Criminal Records – Updated Guidance

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

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

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

Updated guidance from the ICO

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

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

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

New DBS filtering rules

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

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

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

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

What should employers be doing?

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

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

An EPIC workforce with no pay gap?

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

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

What would this bill change?

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

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

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

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

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

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

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

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

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

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

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

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

Employment law update – November 2020

Covid-19

Last month saw a huge amount of activity with the planned end to the furlough scheme and the introduction of the new Job Support Scheme to follow from November. Originally aimed at businesses with reduced demand over the winter due to Covid, plans were made to extend the JSS to cover businesses who were required to close due to the 3 tier restrictions.

All this planning was for nothing in the end. It was overridden on Halloween when the Prime Minister announced a new month-long national lockdown where non-essential shops, restaurants and pubs must close. The furlough scheme is now being extended into November whilst the lockdown is in place. Michael Gove indicated on the Andrew Marr show that the lockdown could extend beyond November. Everyone will be watching this space to see what effect the lockdown has on the spread of the virus.

Before the announcement, and following leaks about the government’s plans, business leaders said another national lockdown would be devastating. Mike Cherry, Chair of the Federation of Small Businesses, said another lockdown would be ‘incredibly frustrating’ after small businesses had spent thousands in making their sites Covid-secure. It is an incredibly tough time for all employers and the situation is fast moving. Keep up to date with both the rules and support at www.gov.uk, or contact us for immediate and targeted help. More detail on the points for employers to consider in the light of the furlough scheme extension can be found here https://lexleyton.co.uk/coronavirus-job-retention-scheme-and-back-to-furlough-what-does-it-all-mean-for-your-business/

Data Protection

Anyone can make a subject access request (SAR) from an organisation to ask whether and how the business is processing their personal information. In the employment sphere, SARs can also be used as a missile by an otherwise dissatisfied employee, often in preparation for bringing a grievance or an employment tribunal claim. SARs can be time consuming to deal with and, with fines of up to 20 million euro or 4 per cent of annual turnover for getting it wrong, expensive to mess up.

Last month, the Information Commissioner’s Office published detailed new guidance to help businesses deal with SARs effectively and efficiently. The guidance deals with three key points:

  • stopping the clock when clarification is needed – this is possible if clarification of the request is genuinely required and the organisation processes a lot of information about that employee.
  • what is a ‘manifestly excessive’ request – one you may not have to comply with.
  • charging fees (i.e. for the cost of staff time, printing, postage etc) for excessive or unfounded (which can include repeat) requests.

All this is good news to businesses who are already juggling many more important balls due to the Covid-19 pandemic. The ICO is also creating a simplified SAR guide for small businesses which picks out the most important points from the detailed guidance. Find the Rights of Access guidance and other helpful materials at www.ico.org.uk.

Indirect discrimination

Indirect discrimination occurs when a policy or practice is applied to all employees but negatively impacts on a group sharing a protected characteristic such as age, race or sex etc. To prove indirect discrimination, the employee must show that the policy or practice puts a particular group at a disadvantage and puts them personally at that disadvantage. The employer must then justify the policy as a proportionate way of achieving a legitimate business aim. The Employment Appeal Tribunal (EAT) has looked recently at what an employee must do to show disadvantage in Ryan v South West Ambulance Services.

The employee was a manager and was 66 or 67 years old. The employer operated a Talent Pool to identify future leaders and maintain existing leaders. The pool was used to fill some vacancies quickly without wider advertising. Employees could go in the Talent Pool if they exceeded expectations in appraisals, via an appeal if their grading was lower, or by self-nomination. The employee’s appraisal said she met expectations and she did not appeal or self-nominate for entry to the pool. The employee applied for a managerial role which was advertised in the Talent Pool but was told she couldn’t apply for it. She brought an indirect discrimination claim, saying employees aged 55 and over were underrepresented in the pool (the group disadvantage) and she was unable to apply for the roles because she wasn’t in the pool (the individual disadvantage). The employment tribunal found that a policy of promotion only via the Talent Pool did have a negative impact on employees aged 55 and over. The over 55s had a 1 in 73 chance of being in the pool rather than a 1 in 34 chance for employees under 55. But the employee’s personal disadvantage – her inability to apply for the roles - wasn’t because of the policy but because she had failed to take any steps to enter the Talent Pool. As a result, there was no causal link between the policy and her individual disadvantage.

The EAT disagreed. The group and individual disadvantages need to match up and they didn’t in this case. This meant the tribunal had got it wrong. The employer applied a policy – recruiting from the Talent Pool – which limited recruitment to senior roles. Although there were legitimate reasons for this, it disadvantaged a group of older employees – those over 55. It disadvantaged the employee. She was affected by the policy because she couldn’t apply for the promotional roles. The employer did not adduce any evidence to show why the discriminatory effect of the rule wasn’t relevant in her case. Ironically, to succeed in this argument, the employer would need to show that it was likely she would have been put in the Talent Pool had she appealed her appraisal or self-nominated. They did not do this. Indirect discrimination was made out (subject to justification). The EAT also said the tribunal was wrong to say the policy was justified because they had not looked properly at its discriminatory effect and any lesser measures which could have been taken instead.

The lesson for employers in this case is to analyse and monitor the discriminatory effect of any policies. If one or more groups are negatively impacted, consider what steps you can take to remove or lessen the disadvantage. In this case, a less impacting policy might have been to allow Talent Pool members to go head to head with other employees for promotional jobs. Another important point for employers is about the group and personal disadvantage corresponding in indirect discrimination cases. Without getting the technicalities right at the outset, any tribunal reasoning was bound to be flawed.

Vicarious liability

Employers must make sure that the workplace is safe for employees. Businesses can be held responsible for the acts or omissions of their employees which take place ‘during the course of employment’. In Chell v Tarmac Cement and Lime, the High Court has looked at whether an employer should be vicariously liable for an employee’s practical joke which seriously injured a contractor.

Both employees and contractors worked as fitters at one of Tarmac’s sites. There were tensions between the two groups because the Tarmac fitters felt their jobs were threatened by the contractors. The claimant contractor had raised these rising tensions with his own employer and Tarmac. A few weeks later, a Tarmac fitter deliberately exploded two ‘pellet targets’ close to the claimant’s ear as a practical joke. It left him with a perforated eardrum, hearing loss and tinnitus. Tarmac dismissed the practical joker, but the contractor brought a claim for negligence against Tarmac. He also claimed that Tarmac was vicariously liable for the practical joker’s actions. The County Court said there was insufficient connection between the practical joke and the duties of the employee as a fitter. Although there were known tensions between contractors and employees, the connection between the employment relationship and the prank was not sufficiently close. The tension had made the contractor feel uncomfortable but not threatened. The judge said it might have been different had the tension been so serious that it suggested physical violence or confrontation – it would have created a risk for the employer to address. The Court also found that the employer was not responsible directly – the risk of injury from a deliberate act was not foreseeable so there was no duty to take any steps to avoid the risk. The employer’s health and safety policies were extensive and warned against reckless misuse of equipment. That was enough. The contractor appealed.

The High Court agreed with the County Court and applied Morrisons v Various Claimants ( a case where the Supreme Court overturned previous courts’ decisions and said that Morrisons was not responsible for an employee’s deliberate act of stealing and publishing employee data). The High Court agreed that Tarmac had extensive health and safety policies in place to create a safe system of work in a potentially dangerous field. Including terms on horseplay or practical jokes would be too much to expect of an employer. The terms of the policy about the misuse of equipment was sufficient.

In this case, the court didn’t believe the contractor’s evidence that he asked to be removed from site due to the tension. This meant that he had overegged the true level of his concerns about workplace tension. This in turn meant that the level of concern he communicated to Tarmac was similarly lower. The situation might be different where an employer is aware of workplace tensions and the risk of violence becomes foreseeable. As always, employers must ensure that any employee safety concerns are dealt with appropriately.

Religion and belief

An individual is protected from discrimination based on their religion or belief. A philosophical belief can be protected if: it is genuinely held; it is a belief not just an opinion; it involves a weighty aspect of human life and behaviour; it attains a certain level of cogency/importance and it is worthy of respect in a democratic society. In Mackareth v DWP and Forstater v Centre for Global Development, two employment tribunals found that individuals who believe that people cannot be transgender (because god only creates men and women) are not protected by the Equality Act 2010. The employees’ beliefs, which included a refusal to refer to trans people by their chosen pronouns, were incompatible with human dignity, conflicted with the rights of others and were not worthy of respect in a democratic society. But employment tribunal decisions are not binding and another employment tribunal in Bristol has recently refused to follow suit in Higgs v Farmor’s School.

The employee was employed as a pastoral administrator and work experience manager. Someone outside the school complained about comments posted on her Facebook page which they said were transphobic and prejudiced against the LGBT community. The employee’s Facebook page was private but included parents at the school. One post invited people to sign a petition to stop schools teaching about same sex relationships and gender being a matter of choice. The employee had also reposted articles by other people on these issues which might have been relevant for several children in the school.

The employee was dismissed for gross misconduct for behaviour which contravened the school’s conduct policy including discrimination and serious inappropriate use of social media. She claimed she had been directly discriminated against and harassed on the grounds of her beliefs. Those beliefs included a lack of belief in gender fluidity and a lack of belief that someone could change their biological sex or gender (as well as others, including ones relating to same sex marriage). The employment tribunal found that her beliefs were protected under the Equality Act 2010. She had rights under the ECHR to respect for private and family life, freedom of religion and freedom of expression. If those rights only applied to beliefs that upset no one then they would be worthless. However, they said she had not been discriminated against because of those beliefs. Her Facebook posts could not have had any expectation of privacy when her ‘friends’ included parents and screenshots could easily be taken and disseminated. In relation to direct discrimination, the school had reasonably considered that people reading her posts might think she was both homophobic and transphobic. This could negatively impact on parents, pupils and the community. The tribunal found that she was dismissed because her Facebook posts might indicate that she held unacceptable views about gay and trans people – beliefs which could not qualify for protection under the EA – rather than her actual beliefs about teaching gender fluidity in schools. She had not been harassed either. The disciplinary process was unwanted conduct, but it was related to the realistic perception that she was homophobic and transphobic rather than the expression of her beliefs. It did not have the purpose or effect of violating her dignity and didn’t create an intimidating or hostile environment.

The tribunal in this case tried to distinguish the facts of this case from Mackareth and Forstater. In Mackereth the employee was a doctor, in Forstater the employee was a visiting fellow at the Centre for Global Development. The tribunal said the employees’ beliefs in the two other cases might have resulted in discrimination against members of the trans community. But in Higgs there were LGBT pupils at the school and the employee had direct contact with children so it’s difficult to see how the situation is different. We understand that all these cases are being appealed, which will hopefully result in future appellate guidance. This will be welcomed by employers who try to find the tricky balance between the rights of the LGBT and trans communities and the rights of those with conflicting beliefs.

Unfair dismissal

A constructive dismissal can arise where an employer breaches the implied term of trust and confidence between employer and employee. The employee can then accept the breach and resign, saying they were pushed. The EAT has looked recently at what constitutes acceptance of a breach and whether a simple failure to return to work following maternity leave is enough to communicate acceptance of a repudiatory breach of contract.

The facts of Chemcem v Ure are a little unusual. The employee was the daughter of the majority shareholder of the business. The employee’s father had left the employee’s mother and had formed a relationship with a colleague. Family relationships became strained and the employer made things difficult for the employee by varying her pay arrangements without warning, switching her employment to the payroll of another company which was about to become insolvent, failing to pay her maternity pay on time and not only failing to answer her queries but deliberately misleading her. The employee didn’t return to work after maternity leave and brought a constructive dismissal claim. The employer said that her failure to return to work was not enough to communicate her acceptance of any breach of contract, so her claim should fail.

The employment tribunal found that there had been a course of conduct whilst the employee was on maternity leave. The employment tribunal said that her employer (via her father) was hostile towards her and her continued employment which had  breached the implied term of mutual trust and confidence. Her failure to return to work was sufficient to accept the breach and bring her employment to an end.  The EAT agreed. In this case, on its unusual facts, the employee’s failure to return to work was enough to communicate acceptance of the breach.  The tribunal had found that the employee’s father did not want her to return to work because she would be managing his new partner. When she didn’t return to work, no one even asked where she was. The employee did not need to say any more – the employer was clearly hoping and perhaps even expecting her not to return.

This case is unusual. It involves a family run business with its dirty laundry being hung out on the shop floor. A failure to show up for work won’t often be enough to communicate acceptance of a breach of contract. There are learning points to take away though, especially for family run businesses. It is within these close-knit environments that the letter of the law and the finer detail of company policy often goes awry. It is exactly because of these close relationships that particular care must be taken to formalise the employment relationship, and any issues that arise within it, however close or  informal the relationships outside the office.

Whistleblowing

Like many employment claims, a claim for whistleblowing detriment under section 47B of the Employment Rights Act 1996 must be brought within three months of the act or failure to act which the employee is complaining about. Where an act extends over a period, the date of the act is treated as the last day of that period. It’s all about the act and when that happened, rather than the consequences of the act. A continuing detriment is not the same thing as a continuing act.

In Ikejiaku v British Institute of Technology, the employee was a senior lecturer. He brought two detriment claims based on protected disclosures he had made during his employment. He made the first disclosure a year before he was dismissed, when he blew the whistle to HMRC about suspected tax evasion by his employer. After that, the employer made detrimental changes to his employment contract. The day before he was dismissed, the employee had blown the whistle on his manager who had told him to pass students who had been copying. An employment tribunal found that he had been automatically unfairly dismissed because of the protected disclosure made the day before his dismissal. However, the contract imposition the year before was a one-off act, albeit with continuing consequences, and so the time limit for bringing that claim had started ticking a year earlier and was now out of time. It was not an act which extended over a period just because the new contract continued to be in place. The tribunal also found that there should be no ACAS uplift for the employer’s failure to follow the ACAS code because it didn’t apply to protected disclosure dismissals. The employee appealed.

The EAT agreed with the tribunal that the contract change detriment claim was out of time. Time starts to run from the act, not the continuing detriment that an employee may suffer because of the act. A continuing act might typically be a policy or rule, but that was not the case here. It wasn’t an act extending over a period either. The contract change was a simple one-off act. However, the EAT allowed the appeal on the ACAS code uplift. The ACAS code also applies to grievances raised by employees. The employer accepted that the protected disclosure the day before the employee’s dismissal was a grievance and so the matter was sent back to decide whether an uplift applied on that basis.

One point for employers to take away here is the applicability of the ACAS code even when the employee had not mentioned the grievance part of it in his claim form. The EAT found that this should have been considered by the tribunal regardless. It is also a comfort to know that a one-off act such as a contract change will not open an employer up to liability outside of the normal time limit for bringing a claim. As always though, employers must take care when employees raise complaints that might be protected disclosures. A knee jerk reaction can come back to bite you.  

Vardags

Cardigans have been banned at City law firm Vardags. In a leaked email from last year, the firm’s female president emailed all staff to confirm that cardigans and other woollens were not part of the Savile Row (for men) or Chanel/Dior/Armani (for women) look she was keen for her staff to adopt. The cardigan ban caught the headlines, but there are more problems with the email than a ban on comfy clothing.

The email has a single paragraph dedicated to male employees, also banning woollens along with brown shoes and super tight trousers. A decent suit and double cuffs are recommended. Nothing unusual for a London law firm. Then follows eight paragraphs on female grooming. Tailored jackets and formal dresses/suits are in, and women are invited to look ‘discretely sexy and colourful and flamboyant at the same time according to your preference’. The email goes on to stipulate natural looking hair (which she insists must be brushed and squeaky clean), classic nail colour, silk only scarves and sheer tights. In a paragraph aimed at men and women, she suggests employees work out, not just for health but so they ‘look great’. She tells them to eat well, move a lot, watch what they drink, get outside and ‘glow’. This all aimed at professional adults.

There are problems here. The excessive instructions to female staff feel oppressive. Suggestions to wear sheer tights – or any see through clothing – are likely to be discriminatory. It feels wrong that men can just look Savile Row smart while women are asked to find the sweet spot between ‘tacky or tarty’ and being ‘drab’. Why the difference? And indicating that employees should lose weight is just plain insulting – it infantilises grown adults and has no bearing on how these individuals can do their jobs. It can also tip into discrimination if weight or fitness is linked to a medical condition which satisfies the disability test.

There’s nothing wrong with having a clear corporate image. Branding is good for marketing your service or product and creating a feeling of unity in the workplace. But employers must be careful not to stray into murky waters. Employers must guard against making anyone’s appearance trump their workplace skills. Being smart should be more about business brain than business attire.

Flexible working

A poll by Working Families has collected data which shows that two thirds of employers have noticed an increase in flexible working requests by their male employees. The poll included a small sample of 26 UK employers who were asked how they managed the numerous challenges posed by the global pandemic. Experts say the results show that the increase in homeworking due to the pandemic may have reduced the stigma sometimes associated with men requesting flexible work arrangements.

The poll also suggested that there might be long term changes to working patterns which survive the end of the pandemic. More employees are expected to work flexibly or remotely for at least part of their working week. It was noted by employers that flexible working can attract a wider range of employees to their business. Some employers said office working would be a thing of the past now that remote and flexible working patterns had been proven to work so well without any negative effect on productivity or client service. 25 out of 26 employers said productivity had been the same or better during lockdown. Some felt that the pandemic had simply fast forwarded a move towards this kind of flexibility in the workplace.

Many employers are keen to hold onto the silver linings that lockdown has produced long after the pandemic is over. The pandemic continues to cause huge disruption and anxiety for employers and employees alike. If the long-term consequence of the pandemic is a cultural shift to a position where flexible working is normalised, without any impact on results, that will be positive both for working parents and for business.

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

Discrimination – Compensation

An employment tribunal has awarded an employee £180,000 following its landmark judgment in September that gender fluid and non-binary people are covered by the Equality Act 2010. The judge said that gender is a spectrum, and it was beyond doubt that the employee was protected under the protected characteristic of gender reassignment. The employment tribunal decisions for the full hearing and the subsequent remedy hearing in Taylor v Jaguar Land Rover are scant and detailed written reasons will follow. However, the basic facts have appeared in the news and make for difficult reading.

The employee was employed for almost 20 years. She presented originally as male but in 2017 began identifying as gender fluid/non-binary and started dressing predominantly in women’s clothing. She was subject to abuse and ridicule by colleagues and had difficulty accessing facilities. Management did not deal with her complaints properly. The employment tribunal found that she had been harassed, directly discriminated against and victimised and she was awarded £180,000 in compensation. This included aggravated damages for both her treatment at work and also the way she was cross examined in tribunal by the employer’s legal team. The tribunal also made a statutory recommendation that the board of directors read and absorb the written reasons for the tribunal judgment. The employer also agreed to a range of other measures including the introduction of a Diversity and Inclusion Champion. They also agreed to commission a report on diversity and inclusion within the business by a recognised diversity body such as Stonewall. A costs hearing will take place at a later date.

The written reasons explaining the decision will not be published for at least another month. There will be lessons for employers to take from it in terms of how they deal with gender fluid employees and diversity more generally. As ever, it’s about having solid policies, properly trained managers and a culture which celebrates diversity rather than shies away from it. This case shows just how costly those failures can be.

Employment law update – October 2020

Woman sitting at table, using laptop


Latest Government Developments

Whether you call it a second wave or one continuous storm, Covid-19 is at the forefront of every employer’s mind as we enter Autumn.  Once again, the government has said employees should work from home if they can, in stark relief to the summer push to get them back in the office. More staff in sectors such as retail and hospitality must now wear masks to stem the rise in infections. Hospitality businesses, such as pubs and restaurants, must shut by 10pm. But the big news for employers came via Rishi Sunak’s Job Support Scheme (JSS) as part of his Winter Economy Plan. It is aimed at safeguarding viable jobs in those sectors of the economy which will struggle over the winter months because of the pandemic.  

The JSS will run for 6 months from 1 November 2020. Where the business remains open, an employee will need to work at least a third (33 per cent) of their normal hours and the employer must pay them for those hours. The remaining two thirds (or 66 per cent) of an employee’s hours are then split again into 3: the government will pay for one third of the remaining hours (22% of their overall contractual hours) and the employer must pay for another third (22%). This means an employee will receive 77% of pay. The government grant is based on the employee’s usual salary, but their contribution will be capped at £697.92 per month. The employer will be reimbursed in arrears for the government contribution.

Only small and medium businesses can take part in this scheme (bigger businesses can take advantage only if their turnover has fallen during the pandemic and the government does not expect them to pay out dividends or similar capital distributions whilst using the JSS). Any small or medium business can use the JSS even if they haven’t previously used the furlough scheme.

However, if the business has been closed down under national or local lockdown rules, a different scheme will apply.  In this situation, the government will pay two thirds of the employees’ salaries, up to a maximum of £2,100 per month. Employers will not be required to contribute towards wages and will only be asked to cover NIC and pension contributions.  To be eligible, the employees must be off work for a minimum of seven consecutive days.

No doubt there will be more guidance on the scheme in due course so keep an eye out for the finer detail. Whether the current situation is a tiny ripple or a raging storm, this could be the lifeline that some SMEs need to help them ride out this wave over the winter.

Unfair dismissal

For a dismissal to be fair, an employer needs to have a potentially fair reason to dismiss – such as misconduct, redundancy or ‘some other substantial reason’ (SOSR) - and the decision to dismiss must be within the range of reasonable responses. In cases where an employer’s reputation may be at risk, conduct and SOSR can overlap. The Employment Appeal Tribunal has looked at this issue recently in K v L.

A teacher was charged with possessing indecent images of children, but he denied being responsible for them. He was suspended from work pending investigation. The Procurator Fiscal (the Scottish equivalent of the CPS) decided not to prosecute. The police evidence provided to the employer was redacted beyond use, so it wasn’t given to the disciplining officer. The employer concluded that there wasn’t enough evidence to show the employee was responsible for downloading the images. However, he was dismissed for misconduct and the potential risk he posed to children. The dismissal letter also cited the risk of reputational damage which hadn’t been part of the hearing. 

The employee claimed unfair dismissal. He lost at the employment tribunal, but the Employment Appeal Tribunal overturned that decision. The EAT said that dismissing for reputational damage wasn’t fair because the employee had not been given an opportunity to address those allegations at the disciplinary hearing. They also said that the decision to dismiss on conduct grounds was flawed: an employer must be satisfied on the balance of probabilities that the employee committed the offence in question. The disciplining officer had said there wasn’t enough evidence to make out misconduct, so the decision to dismiss on conduct grounds was not reasonable. The EAT went on to look at whether the employee could have been fairly dismissed for SOSR if the employer had pursued reputational damage as the reason for dismissal. They referred to a previous case called Leach v Ofcom, where a reputational damage dismissal had been fair. The EAT said this case was very different from Leach. In Leach, there was detailed information from the police to support the allegations, which there wasn’t in this case. The employer in Leach investigated the police evidence rather than simply accepting it – there wasn’t that opportunity in this case as there was no comparable police evidence. In Leach there was existing press interest in the case, and a real risk of adverse press coverage, which wasn’t present here.

It’s hard to believe that it could ever be unfair to dismiss a teacher when indecent images of children are found on devices in their home. But this case shows the importance of an evidence base for these decisions, both in relation to misconduct and any risk of reputational damage. Employees must also be given an opportunity to deal with all relevant issues at the disciplinary hearing for a dismissal to be fair.

Disability

In order to qualify as a disability under the Equality Act 2010, an impairment must have a substantial and long-term adverse effect on an individual’s ability to do day to day activities. In order to be long term, a substantial adverse effect must have lasted, or be likely to last, at least 12 months, or be likely to recur. A tribunal will look at medical evidence and the employee’s own witness evidence about the effects of their impairment. But they will also look at other evidence, including the employer’s, if that is relevant.

In Sullivan v Bury Street Capital Limited, the employee was a sales executive in a small company. In 2013, he suffered paranoid delusions that he was being stalked by a Russian gang following a split from a Ukrainian partner. He had previously had issues with timekeeping, attendance and record keeping, but the delusions made this worse. The employee sought treatment and his condition improved, so much so that his boss invited him on an important business meeting to New York in September 2013. In April 2017, his delusions began having a greater impact on him. He was eventually dismissed in September 2017 due to his capability and attitude. He claimed unfair dismissal and disability discrimination, saying his paranoid delusions had had a substantial adverse effect from 2013. At the hearing, a joint medical expert confirmed this, although conceded that he couldn’t be sure about the effects as he was relying on the employee’s account.

The employment tribunal overrode the medical evidence and said the employee was not disabled. The employee said the delusions had such an impact during the whole period that he would arrive at work exhausted, struggle to stay awake and couldn’t concentrate on work. He said it affected his personal hygiene. But the tribunal preferred the evidence from the employee’s boss and a colleague who sat close to him in the office. The colleague didn’t know anything about the delusions despite working alongside him for many years, and said the employee was exaggerating his symptoms. In evidence, the employee conceded he showered daily, flying in the face of his own witness statement on personal hygiene. The tribunal said the delusions had a substantial adverse effect for a few months in 2013 and then again in 2017 but at neither point was the effect likely to last 12 months or recur. The employee appealed but the EAT upheld the decision. They said the tribunal was at liberty to weigh up all the evidence, including but not limited to medical evidence, and arrive at its own decision.

This case confirms the position that legal disability is a question for the tribunal rather than a doctor. This is something which is often misunderstood by both employers and employees. Medical evidence is just one piece of the puzzle. In this case, the employee chose to rely on effects that his impairment had on him at work. This could be directly countered by colleagues who were around him and, together with inconsistencies in the employee’s own evidence, were fatal to his disability assertions.

Interim relief

The current uncertainty around jobs can cause friction between employers and their employees. In such times, many employees call on their trade unions for support. Unions are keen to stamp their mark, not only to protect existing members but to capitalise on an industrial crisis and turn it into a recruitment drive. Section 161 of the Trade Union and Labour Relations Act 1992 allows an employee to claim interim relief if they believe they have been automatically unfairly dismissed due to trade union membership or activities. If an employee can show they are likely to succeed in a claim for unfair dismissal due to trade union activities, then a tribunal will reinstate them pending a full hearing of the case.

In Morales v Premier Fruits, the employer was a fruit and vegetable wholesaler whose business had been ravaged by Covid. In May 2020, they asked employees to take a 25 per cent pay cut. The employee, Morales, refused and got his trade union to lodge a grievance on his behalf. A staff meeting took place from which the employee was excluded. It was recorded by a colleague. The manager could be heard making derogatory remarks aimed at the employee and his union activities, expressing views that were ‘strongly critical of trade unions’. The man who recorded the meeting was dismissed three days later. The employee continued to refuse the pay cut and was eventually dismissed in July, shortly after the grievance process had concluded.

Although the tribunal said that a full tribunal hearing will ultimately decide why the employee was dismissed, the judge said the employee had a ‘pretty good chance of success’ in showing that it was down to his trade union involvement. The recorded meeting’s transcript showed clear irritation that the employee had involved his union. The tribunal also felt the sacking of the person who had recorded the meeting was relevant. The employer hasn’t lost the case yet, but the employee has now been reinstated pending a full hearing, after the employer indicated they would consent to it.

This case shows the importance of keeping your cool even when the waters are boiling. With a ravaged business and plunging profits, the employer in this case had every reason to seek to reduce its outgoings. Its mistake was reacting badly to the involvement of the employee’s trade union and being openly disparaging about unions and their activities in a staff meeting. However pressurised the economic environment, managers and businesses must behave professionally in relation to both employees and their trade unions. Showing your frustration, however understandable, can land you in hot water.

Data protection

This month the High Court has looked at the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 and their relevance in internal disciplinary proceedings. In Kathryn Hopkins v HMRC, the employee was arrested in connection with various offences, including sexual offences and an offence which took place in a work vehicle. As required by her contract of employment, she told her manager about the arrest. The manager then shared that information with various internal departments, including HR (in relation to pursuing disciplinary proceedings) and the press office (to manage any negative publicity). The employee was suspended pending a disciplinary process for gross misconduct. The employee’s contract of employment included terms involving appropriate behaviour outside of work and conduct which could give rise to queries about honesty and trust.

The employee went off on long term sick leave and refused to open or read correspondence from the employer. She said the internal investigation into the alleged offences was in breach of data protection laws and should stop. The process was briefly halted but continued after the employer sought legal advice saying it could press on. The employee complained to the Information Commissioner’s Office and then brought claims in the High Court for, among other things, data protection breaches by the employer for ‘processing’ the information about her arrest both internally and externally.

The High Court said the employer had a lawful basis for processing the special category data about the employee’s arrest when it suspended her and started disciplinary proceedings. The processing in question was necessary for the performance of her contract of employment and the employer had, as it was required to, an appropriate data protection policy in place to which the employee had access.

This case shows how data protection laws can be relevant in disciplinary proceedings and the sharing of information internally to facilitate that process. It is also a case which exemplifies the lengths to which an employee will go to avoid a disciplinary process. Employers must ensure they follow the rules: an effective compliant data protection policy is vital here. Employers must also ensure they identify a lawful basis for processing (in this case it was necessary for the performance of the employment contract) and maintain appropriate records. But employers should not be cowed by an employee who adopts a scattergun approach to imagined legal breaches in a bid to avoid facing the music.

Pleadings

The EAT has issued some guidance on written pleadings which will make employers breathe a sigh of relief. All too often, employment tribunal claims run to several pages, documenting several years of alleged ill treatment, often without stipulating a single legal claim. The EAT has provided its wisdom in a case called C v D, where the employee had brought a claim for discrimination which ran to 37 paragraphs over 6 pages.

The claim form provided a narrative account of the alleged discrimination. It referred to two different protected characteristics but didn’t say which facts related to which characteristic. Nor did the employee say what type of discrimination was being claimed. The employer replied in narrative style, requesting further information, which the employee provided. When that further information arrived, the employer said the employee was raising new claims and new facts which would now be out of time. An employment tribunal judge refused to allow certain amendments to the claim, so the employee appealed.

As part of her reasoning, the EAT judge discouraged the use of ‘narrative’ pleadings and encouraged legal representatives to use more succinct and clear drafting. Claim forms are not witness statements. They should set out a brief statement of the relevant facts and then the cause of action relied on, such as unfair dismissal or the specific discrimination claim (direct, indirect, discrimination arising from disability, etc) rather than just saying ‘I have been discriminated against’. Witness statements are the place to set out the exhaustive factual detail if it is relevant. This case showed all too clearly what happens if claims lack sufficient legal precision: costs increase (because of the extra hearings and work entailed), time is lost, and delay is inevitable.

There is a balance to be struck here, both in claim forms and responding to them. Sufficient factual basis to support a claim or response, but not too much.  The difficulty in striking that balance is the reason many pleadings are overly verbose. There is definitely merit in getting someone legally qualified to draft pleadings, so that this balance can be properly struck, and legal proceedings get off to a good start.

Privacy at work

Article 8 of the European Convention on Human Rights says that everyone has the right to respect for private and family life, their home and correspondence. Public authorities are not allowed to interfere with that except in exceptional circumstances such as national security, public safety or the prevention of crime. Employment tribunals, like all courts, must construe employment law in a way which is compatible with the ECHR. But how far does this right to privacy go, and what kind of things can trump it?

In BC V Chief Constable of the Police Service of Scotland, police officers signed up to a code of professional conduct. The code applied both on and off duty due to the public nature of their jobs. The code said officers must not behave in a way which interferes with the ‘impartial discharge’ of their duties or gives the impression of partiality. The Police Service of Scotland (PSS) conducted an investigation into sexual offences within the police force. As part of the investigation, private WhatsApp messages from groups chats between officers were found, containing racist, sexist, anti-Semitic, homophobic and disablist comments, as well as photos of crimes scenes in breach of police procedures. The PSS brought misconduct charges against numerous officers. The officers retaliated with a claim alleging that the misconduct proceedings based on private WhatsApps breached their right to privacy.

The Inner House of the Court of Session (a Scottish appeal court) found that there was no reasonable expectation of privacy for police officers in relation to the private messages. They were holders of public office and had signed up to certain restrictions on their private life. In addition, all the officers involved were under a contractual duty to report the behaviour of colleagues whose behaviour had fallen short of the code of conduct. It was also relevant that the messages had been discovered openly as part of a criminal investigation rather than in a covert manner. The court disagreed with the officers’ contention that the messages could only be used in the prevention of crime. There was a clear public interest in maintaining a properly regulated police force in which the public could have confidence. That objective was enough to justify the restriction on the officers’ Article 8 privacy rights.

This decision accords with other employment cases where tribunals have refused to find a reasonable expectation of privacy in relation to comments made on social media or in work related emails. However, to my knowledge, it is the first case involving WhatsApp messages sent from personal accounts. Although this case involves public sector employees, the same principles may well apply to any employees who are subject to professional standards where the messages in question suggest a breach of those standards in a way which might impact on public confidence in that field.


Tracking workers hours 

Are you worried about your homeworkers kicking back during the pandemic? Shibu Philips, founder of London-based beauty business Transcend, has told the BBC he has been using Hubstaff software in order to monitor what his employees are doing. He says he knows only too well what its like to waste time at work. The software allows him to track his workers’ hours, keystrokes,  mouse movements and websites. He can look at screenshots and see how much time workers are taking on tasks. Employees are fully aware of the software and can delete websites visited during breaks.

The pandemic has created a big demand for this and other kinds of surveillance software. Employers worry that a lack of visibility will impact on employee productivity. Understandably, they want to protect their businesses at what is a crunch time for many. But is software the way forward? Employees have also struggled during the pandemic, worried about their health and families as well as their jobs and future prospects. Introducing monitoring software during a crisis could damage employee trust and confidence at a time when you want to retain your very best people to see you through the crisis. Surveillance software isn’t fool proof – it can’t record thinking time or the creative process in any meaningful way.

Instead of software, consider whether some TLC might be a better way to go. Make sure managers are checking in regularly with staff, not only to monitor work but to check on wellbeing. Filter out and deal with any genuine shirkers as you would normally if they took a three-hour lunch. The human touch can be more sensitive than software, and carrots invariably work better than sticks with the employees you want to keep. And remember, if you do use surveillance software to monitor staff, have a clear policy, get employees to explicitly agree to its terms and make sure it is used proportionately.Extra articles

Redundancy

ACAS has joined forces with the TUC and CBI to issue a statement on how best to handle redundancies stemming from the Covid pandemic. They recognise that redundancies may be unavoidable for some businesses but ask employers to try all possible alternatives first. Ideas include more part time working, cuts to overtime, finding alternative roles for some staff and retraining others. They ask employers to consider the following guidance and do what they can to look after their people as well as their business:

Do it openly: following collective consultation requirements is key but early open discussions about potential redundancies is better for everyone.

Do it thoroughly: make sure that the people carrying out your redundancy process have been trained in how to handle it properly. They need to know the processes they must follow and the legal hoops they need to jump through. Everyone involved needs information and guidance, so they can pass that information onto the affected employees.

Do it genuinely: don’t just go through the motions. Consultation involves genuinely listening to employee and union views and being open to alternatives they put forward. Give feedback if you reject their ideas so they understand why.

Do it fairly: as with any process, following a fair procedure is key and any process must be free of discrimination

Do it with dignity: losing your job can be a devastating and traumatic experience. How an employer approaches redundancy can change the way someone views both their position and the company. Be kind in your conversations and correspondence, not only for the benefit of employees but in case you want to rehire them in future.

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

Costs

Unlike the civil courts, costs (including legal fees) are not usually paid by the losing party in employment tribunal cases. Costs can be awarded by a tribunal if one of the parties has behaved vexatiously, disruptively, abusively or otherwise unreasonably in bringing proceedings or the way they have conducted themselves during those proceedings. A costs order might also be made if a claim is pursued (or defended) despite the claim/defence having no reasonable prospect of success. They are rare, so are big news when they happen, especially when the sums involved are large.

An employment tribunal has awarded what is believed to be the largest costs award against an employee who used to work for Millennium and Copthorne Hotels as Senior Vice President of Global Procurement. Chee Hwee Tan was made redundant and brought a whole raft of claims against his employer including unfair dismissal, discrimination based on race, age and sexual orientation, whistleblowing detriment and unlawful deduction from wages. Hedging his bets did not pay off for this employee.

The employment tribunal dismissed all the employee’s claims. They found that the employee had been ‘duplicitous’ and acted in a way which undermined trust and confidence when he secretly recorded conversations with colleagues. The tribunal made an order for costs because his claims had been vexatious. The employee now must pay £432,000 to the employer to cover the costs of defending those spurious claims.

Costs awards are rare, and usually average only a few thousand pounds, so the pressure on the employer to settle these spurious claims must have been huge. They held their nerve and it paid off. This case doesn’t create any new law, but it does show that tribunals are willing to make costs orders in the right cases, even if those costs are very high.

ACAS Contact – Register Your Business

ACAS Contact

Whether it comes with a ‘thud’ or ‘ping’,  HR and business owners’ know the dreaded sound of an ETI kicking off an employment tribunal claim hitting their doormat or inbox which will be closely followed by a long ‘sigggghhhh’

But what if the first time you get to hear about the claim is when what thuds or pings through is the  ET3 response request? What if you hadn’t seen any communication from ACAS about mandatory early conciliation because the email hadn’t reached as it should have being responsible for all things HR but instead, had fallen into an unmonitored email inbox orsent to some random person within your business?

Hopefully and particularly if you are a smaller business, employment tribunal claims of any kind rarely come across your desk. But in bigger businesses, and particularly with the current economic climate where people are being laid off left right and centre and looking everywhere for possible avenues for recompense, whether you are a small or large organisation my prediction is you can expect to receive more of them.

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