Employment Newsletter Archive

Welcome to our February quarterly newsletter, in this edition we will have a look at the key employment law changes that are coming into force in 2024 and discuss the changes to paternity leave alongside some employment law decisions that have come out of the Employment Tribunals.

Employment Laws – The key changes coming into force in 2024.

With the ‘January Rush’ hopefully behind us, we thought it would be prudent to remind you of the changes to employment law that are coming into effect throughout 2024. It’s important that the necessary preparations are made for these key changes in the workplace. Please check our website for updates as the year goes on: Employment Laws to be aware of this year – changes coming into force in 2024 : Wilson Browne

Paternity Pay Regulations 2024

When? 8 March 2024

Please see our article below on this new law.

National Minimum Wage (NMW)  

When? 1 April 2024

From the 1 April 2024 the following rates will apply:

• For over-23s: £11.44 per hour (increased from £10.42)
• For 21-22: £11.44 per hour (increased from £10.18)
• For 18-20: £8.60 per hour (increased from £7.49)
• For under 18s: £6.40 per hour (increased from £5.28)
• The Apprentice rate: £6.40 per hour (increased from £5.28) – this rate applies to those under 19 or people over 19 in the first year of their apprenticeship.

It’s important to be mindful of those instances where breaches of NMW occur unintentionally (such as unpaid travel time, not paying for training/trial shifts, and deductions from wages to cover uniform costs). Please see our checklist which can help you identify if you might be at risk of a breach of the NMW: Do you comply with National Minimum Wage? (NMW) (wilsonbrowne.co.uk)

National Minimum Wage (Amendment) Regulations 2024

When? 1 April 2024

Any work which satisfies the requirements currently set out in paragraph 57(3) will now be included as “work” for the purposes of the 2015 Regulations. This paragraph currently provides that work undertaken where:

• The worker resides in the family home of their employer,
• The worker is not a member of that family, but is treated as such (for example, they may share meals, accommodation, or leisure activities), and
• The worker is not liable to make any payment to the employer for the provision of living accommodation or meals

is not ‘work’ and therefore such workers are not entitled to National Minimum Wage (NMW). However, from 1 April 2024, a worker who satisfies the above criteria must be renumerated at a rate no less than NMW (see above for the appropriate rates).

Working Time Regulations Amendments

When? 6 April 2024

Please see our article below on this amendment which changes how holiday accrues for irregular-hours workers. 

Employment Relations (Flexible Working) Act 2023 

When? 6 April 2024

Changes to the right for employees to request flexible working arrangements come into effect on 6 April 2024; the key change being the right to make such a request from day 1 of employment. Previously, employees were only able to make a request after 26 weeks’ service. Another change relates to the number of requests that can be made; it now gives employees the right to request flexible working twice in a 12-month period (it currently has a once-a-year limit). To prepare for the change, Flexible Working Policies should be revisited to ensure compliance with the changes to the law.

ACAS has recently updated its Code of Practice on Flexible Working (please note, this is still awaiting parliamentary approval). Once approved, this Code of Practice must be followed when a request for flexible working is made; it outlines the process and considerations to be aware of. The draft code can be found here: https://www.acas.org.uk/acas-code-of-practice-on-flexible-working-requests/2024?mc_cid=05faee7046&mc_eid=02a90c2180

Carers Leave Act 2023 

When? 6 April 2024

This Act grants a new right for employees, who will be entitled to apply for up to one week of unpaid carer’s leave in any 12-month period. This will be a day 1 right for employees who:

• Have a dependant with a long-term care need, and
• Want to be absent from work to provide/arrange care.

Employees must give written notice of their intention to take such leave. Employers are entitled to postpone the request if the leave would unduly disrupt the operation of the business, but they must give notice of the postponement, along with an explanation for it, before the leave was due to begin.

The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024

When? 6 April 2024

These regulations will extend the existing redundancy protection to:

• pregnant women, 
• new parents who have recently returned from a period of maternity or adoption leave, and
• new parents who have recently returned from a period of shared parental leave which lasted six weeks or more.

Employers need to be aware of the risk of potential claims if alternative employment is not offered (where available) to the employees who are protected. Employees should ensure employers are informed of the pregnancy at an appropriate time to be able to benefit from this protection. 

Employment (Allocation of Tips) Act 2023 

When? May 2024

This new legislation, which will ensure a fair allocation of tips and service charges, will mean a significant change to the hospitality industry. The new law will require employers to:

• pass the entirety of any tips and service charges received to its staff without any deductions; 
• have a written policy on how it deals with tips; and 
• keep records of all tips and service charges received for 3 years.

The Workers (Predictable Terms and Conditions) Act 2023

When? September 2024 (expected)

This Act introduces a new right for workers to request a more predictable working pattern. This will have significant implications for employers who engage atypical and agency workers. Employers will need to implement a process for handling these applications. The request could relate to:

• Hours of work
• Days of work, or
• Period of engagement.

Once an application has been made, employers must deal with the request in a reasonable manner and ensure the worker is notified of the decision within one month. If the request is refused, it must be for a specified reason. Such reasons include the burden of additional costs and insufficient work during the period the worker has requested to work. 

This right will apply to anyone who has 26 weeks’ service If the request is granted, employers must offer the new terms within 2 weeks.

The Worker Protection (Amendment of Equality Act 2010) Act 2023

When? October 2024 (expected)

The Worker Protection (Amendment of Equality Act 2010) Act 2023 will place all employers under a statutory duty to take reasonable steps to prevent sex harassment in the workplace. The introduction of this change should act as a prompt for employers to consider what steps they are already taking to prevent harassment within their organisation and to review and update policies and training as necessary.

If you are unsure on how any of these changes will affect your business, we have a fantastic offer that you can benefit 

from – potentially saving time, money and even reputational damage with our FREE Review Of Contracts Of Employment And Staff Handbooks: FREE Review Of Contracts Of Employment And Staff Handbooks. : Wilson Browne

The Neonatal Care (Leave and Pay) Act 2023

When? 2025 (expected)

One for 2025, the Neonatal Care (Leave and Pay) Act 2023 will introduce an entitlement to neonatal care leave and pay.

Employment Appeal Tribunal Decisions

Affirmation and unfair constructive dismissal – Leaney v Loughborough University

The claimant was a university lecturer with over 40 years’ service. A complaint was made about him by a student, which he disputed. In November 2018 a student, known as Student X, self-harmed in the halls of residence of which Dr Leaney was the warden. A student raised a complaint, on Student X’s behalf, regarding Dr Leaney’s handling of the matter. This led to a disciplinary investigation and report, in which no formal wrongdoing was found, but the investigator did wish to have an informal chat with Dr Leaney regarding his behaviour. Dr Leaney then raised an informal grievance, and subsequent appeals and mediation followed.

On 29 June 2020, the claimant was told that the university could no longer look at this issue, and a period of negotiation followed between solicitors.

The claimant consequently resigned on 28 September 2020 claiming unfair constructive dismissal. He relied on the notification received on 29 June 2020 as the ‘last straw’.

The ET ruled that the three-month period that the claimant worked prior to resigning acted as an affirmation of his contract of employment, which removed his ability to resign 

and claim constructive dismissal. However, the EAT disagreed for two reasons:

1. Length of service is a key factor in determining whether the contract has been affirmed where there has been a period of delay – this is fact-sensitive. An employee with long service may reasonably take longer to consider their position before taking the plunge and resigning.
2. A period of negotiation before the resignation is key – these could be the employee’s attempt to try and put everything back on track before resigning. Delaying resignation so this can be done is not always indicative of affirmation. 

Employers ought to bear in mind that, even if an employee resigns a while after the ‘last straw’ incident, they could still be open to a claim for constructive unfair dismissal. 

Age discrimination and employee benefits – Fasano v Reckitt Benckiser Group Plc (1) and Reckitt Benckiser Health Ltd (2) 

The claimant was part of a long-term incentive plan (LTIP) which his employer, Reckitt Benckiser Health Ltd (RBH), ran from 2017 until 2019. RBH is a wholly owned subsidiary of Reckitt Benckiser Group Plc (RBG). The claimant retired in June 2019 as a ‘good leaver’ under the terms of the LTIP, which meant he could get a pro rata amount of the award if the conditions of the LTIP were met. 

However, RBH changed the LTIP to encourage staff retention, allowing those employed in September 2019 to benefit and cutting off the claimant’s opportunity to benefit from the LTIP due to his retirement. The claimant claimed indirect age discrimination, relying on the requirement for LTIP participants to remain employed in September 2019 to benefit from the rule changes as a provision, criterion or practice (‘PCP’) which put those over the age of 57 (including the claimant) at a disadvantage.

The claimant’s claim failed in the ET. It held that the PCP identified by the claimant was a proportionate means of achieving a legitimate aim, namely the aim of retaining staff. However, the ET did find that RBG was acting as agent for RBH and that both companies were therefore potentially liable. The claimant appealed. The respondents (RBH and RBG) cross-appealed, arguing that the ET was wrong to find that RBG was acting as agent for RBH.

The EAT disagreed with the ET’s decision on the PCP. It found that the PCP itself was not a means, and therefore certainly not a proportionate means, of achieving the legitimate aim of retaining employees. This was because the employees who were excluded by the PCP had already left employment and so could not be retained.  

Unfortunately for the claimant, however, his claim still failed at the EAT. It found that the ET was wrong to find that RBG was acting as agent for RBH. The EAT could find no basis for the ET’s finding that RBG had been authorised by RBH to act on its behalf in relation to the LTIP. Since RBH did not make the change that amounted to the discriminatory PCP, it was not liable for the discrimination. RBG, which did make the change, was not the claimant’s employer and was not acting as an agent for RBH (which was the claimant’s employer). Therefore, RBG was not liable for the change under the Equality Act 2010. The EAT commented that this left an “unpalatable” result for the claimant, who found himself with no remedy for the discrimination he suffered. However, it will be for Parliament to decide whether to amend the law to fill this apparent gap in protection. 

Duty to adjust interviews for those with a disability – Glasson v Insolvency Service 

Mr Glasson (the claimant) had worked for the Insolvency Service (the respondent) since 2005 and he had a stammer which was a disability under the Equality Act. In 2020, he applied for a promotion for which there were two vacancies, and the interviews were conducted via video conferencing. He made the respondent aware, prior to the interview, that because of his stammer he may need extra time to answer the interview questions. This was the only adjustment he asked for. 

The claimant performed well in the interview, and the jobs were given to the two highest scoring candidates. However, the claimant scored third and was therefore unsuccessful in getting the role. He claimed that the respondent had failed to make reasonable adjustments – not because he needed extra time, but because his stammer meant he went into something known as “restrictive mode”. Essentially, this meant he was giving shorter answers to some questions to try and avoid his stammer. 

The ET accepted that the effects of “restrictive mode” did impact the claimant’s performance during the interview. However, as the claimant did not raise these concerns in advance, the respondent did not have actual or constructive knowledge of this disadvantage. The EAT upheld the ET’s decision; namely, that whilst the respondent knew the claimant had a stammer, due to his previous years of good performance, and his general performance within the interview, it could not reasonably be expected to have known of the disadvantage caused to the claimant by “restrictive mode.”

What’s New?

New Guidance on Holiday Pay

On 1 January 2024, the Government introduced reforms to the Working Time Regulations to simplify holiday entitlement and pay calculations for “irregular-hours workers” and “part-year workers.” 

• Irregular-hours workers are workers whose number of hours they work in each pay period during their contractual term is variable under the terms of their contract.
• Part-year workers are workers who are only required to work part of the year or there are periods during the year that they aren’t required to work and which they are not paid for and this is specified in their contract.

The new method for calculating statutory holiday entitlement for the above workers for leave years beginning on or after 1 April 2024 will be 12.07% of actual hours worked in a pay period. 

Other workers and employees are unaffected by these new regulations and are still entitled to a minimum of 5.6 weeks’ paid holiday per year. 4 weeks are paid at the ‘normal’ rate of pay and 1.6 weeks at ‘basic’ pay.

Introducing Fees in Employment Tribunals and the EAT

The Government has issued a consultation paper with the aim of re-introducing fees in both employment tribunals and the Employment Appeal Tribunal. The consultation is set to close on 25 March 2024.

The suggested fee is £55 to bring a claim in the employment tribunal. This fee would be a one-off payment and would be the same irrespective of whether it is a single claimant or multi-party. There would be no further payment required when the hearing is imminent and there would be no differentiating between Type ‘A’ and Type ‘B’ cases. 

There will also be a payment of £55 to start an appeal in the Employment Appeal Tribunal.

The plan is that there will be a system in place for those who simply cannot afford the fees (of which a set definition will be provided by the government) and some claims will be exempt (such as claims against the national redundancy fund).

New Draft Paternity Leave Regulations published 

The draft Paternity Leave (Amendment) Regulations 2024 (the Regulations) have been proposed to come into force on 8^th March of this year. These amendments are hoping to alter the current statutory entitlement to paternity leave, specifically, the way in which people can take it, the notice requirements, the period when it must be taken as well as the rule that paternity leave must be taken all at once.

What does the current statute say?

Currently, eligible employed fathers and partners are given the following rights:

• They can take one or two consecutive weeks of paid paternity leave.
• This must be taken within the first 8 weeks following either the birth of their child or the adoption.
• This leave can only be taken in one block, so if they take one week, they cannot take the other week at a different time, meaning they will lose it.

What do the draft amendments propose?

The Regulations propose to make the following amendments:

• Allows the leave to be taken as two one-week non-consecutive blocks if required.
• Replace the 8-week time period in which fathers can take leave with a 52-week time period instead.
• Leave can now be taken on a shorter notice period, meaning that families only need to notify their employer not less than 4 weeks prior to the leave.
• Leave dates can be varied provided the father gives 4 weeks’ notice of the variation – this allows families that additional flexibility if needed.

Is it paid?

The statutory weekly payment of Paternity Pay is £172.48 per week or 90% of your weekly average earnings (whichever happens to be lower). This is expected to rise slightly to £184.03. 

Can an employer say no?

Currently, an employer has no right to reject an employee’s request for paternity leave. Even when the rules change, and an employee takes the leave at any time within the 52-week

period, the employer still cannot reject the request, even if it has become inconvenient for the employer. 

What do they apply to?

The above proposed changes only apply to cases where the expected week of childbirth (or expected date of placement for adoption) is on or after the 6 April 2024. This is another instalment in the proposed family-friendly changes, such as maternity, adoption and shared parental leave, coming in to force in the spring of this year.

This is another step in the direction of equality. In an environment where the classic family dynamic is changing constantly these regulations bring with it welcome change and allows fathers the flexibility that may be required.

If you need more information on any of the articles in this newsletter please visit our website or email        

employmentlaw@wilsonbrowne.co.uk

Welcome to our November quarterly newsletter, in this edition we will have a look at Artificial Intelligence in the workplace and suspending employees alongside some employment law decisions that have come out of the Employment Tribunals.

Artifical Intelligence

At Wilson Browne, we have been keeping up to date with recent developments and advancements in technology and considering how we can help our clients implement new technologies. For example, our guide on Artificial Intelligence in the Workplace helps employers understand how to avoid legal pitfalls when implementing AI in the workplace.

Part of the Guide talks about how AI might be implemented to monitor employees, and helpfully, the Information Commissioner’s Office has also recently published guidance on monitoring workers to help employers comply with UK GDPR.

Compliance with GDPR will be a primary consideration for all AI implementation in the workplace. AI monitoring often involves the processing of personal data, so employers must ensure that they adhere to the key principles set out in the GDPR when personal data is processed. Employers must also, of course, identify a lawful basis for collecting and processing information from monitoring workers.

In its press release which accompanied the guidance, the ICO stated that 70% of people surveyed by the ICO said they would find monitoring in the workplace intrusive and only 19% would feel comfortable taking a new job if they knew that their employer would be monitoring them. This only reinforces the need to ensure that any form of monitoring, but especially monitoring supported by AI, is implemented in a way which respects the right to privacy.

A portion of the ICO’s guidance focuses on automated tools for monitoring workers, which are often used for security purposes and for performance, sickness and attendance management. Importantly, the guide highlights the difference between a decision which is solely automated and a decision which may be based on automated data but is ultimately reviewed by a human.

For example, if a workers’ pay is solely based on automated monitoring of their productivity, additional rules will apply which mean that the employer will also be able to process data in this way if it has the workers’ explicit consent, necessary for performance of a contract, or authorised by law. On the other hand, if an employer is notified by software which uses vehicle tracking data that a worker has not been making deliveries on time, but the employer discusses this issue with the worker before taking any disciplinary action, the additional rules mentioned above won’t apply.

If you need any assistance with data protection and implementing AI in the workplace, please get in touch with a member of the employment team. We are also offering a FREE review of a contract of employment or policy handbook, so we can check that your existing data protection policy or privacy notice is fit for purpose.

Suspension

Conservative MP Peter Bone hit the news in late October after he was suspended for 6 weeks for allegedly committing many acts of bullying and an act of sexual misconduct. This has evoked conversation surrounding the circumstances where suspending an employee may be appropriate.

Suspension is a serious decision and should not be considered lightly. There is a process to be followed and many considerations that employers should be aware of.

When might you be able to suspend an employee?

The most important thing to stress is that suspension should never be a knee-jerk reaction to a situation. Whilst it can be suitable in serious cases of misconduct, an employer should not use suspension automatically. Suspension should also not be used as a punishment for the employee.

Instead, suspension should be a means of carrying out an investigation as effectively as possible. However, it will still only be appropriate in some situations, for example, for the protection of the business, or of other employees. Each situation should be carefully reviewed, considering all the facts before deciding to suspend. If suspension is imposed, it should be for as short of a period as possible, it should also be regularly reviewed to ensure it remains appropriate.

It is important to recognise that if suspension is imposed, many suspended employees often view the suspension as a punishment regardless; it may also lead to them concluding that their outcome of their disciplinary has already been determined. Suspension can also affect the employee’s mental health. All these issues must be accounted for and addressed both at the point of suspension and whilst it remains in place.

When deciding whether to suspend an employee, employers should:

• Ensure an initial investigation has been carried out which identifies grounds for suspension.
• Consider the wellbeing and mental health of the employee and the supports to be put in place during any period of suspension.
• Consider any alternatives to suspension.

For further information, please see our Guide to Suspension, which is available on our website and details the process to follow as well as alternatives to suspension in more detail. Alternatively, reach out to a member of our Employment Law Team for a Free Initial Call on this matter.

Employment Law Decisions

Please be aware that “first instance employment tribunal decisions” do not set precedents and are not binding on other courts even where the facts are the same or very similar. These decisions may also be subject to appeal.

Indirect Discrimination – Dobson v Cumbria Partnership NHS Foundation Trust ET/2401798/17

Ms Dobson was employed as a community nurse, working two fixed days a week. The NHS Trust, with notice, sought to change this by requiring community nurses to work occasional weekends as it transitioned to a 24/7 service. Ms Dobson refused to agree due to having 2 disabled children at home that she had to care for on the days of the week she was not working. The Employment Tribunal held that Ms Dobson had neither been indirectly discriminated against nor unfairly dismissed.

The EAT held that the tribunal had erred in finding there was no evidence for there being a group disadvantage to women who, because of childcare responsibilities, were less likely to be able to accommodate certain working patterns compared to men.

However, following the EAT’s decision, upon remission the ET upheld its original decision, namely that Ms Dobson had not suffered indirect discrimination or been unfairly dismissed. They found that dismissing her for refusing to work weekends was a proportionate means of achieving a legitimate aim in terms of providing care 24/7 to those patients who require complex care; balancing the workload amongst the team and reducing costs.

Holiday Pay – Chief Constable of the Police Service of Northern Ireland and another v Agnew and others (Northern Ireland) [2023] UKSC 33

It was established case law that a break in the chain of any series of deductions from a worker’s holiday pay would occur if there was a break of three months between different deductions. Because workers have three months less a day to bring a claim for unlawful deductions from wages (subject to any time spent in early conciliation), this would mean a worker would not have been able to link a deduction which occurred in November 2022 with a deduction in November 2023, even if the circumstances surrounding the deduction were the same.

The Supreme Court was asked to consider this in relation to claims for holiday pay, some of which went back to November 1998, by police officers and civilian staff of the Police Service of Northern Ireland. The Supreme Court held that there would be no break in the chain of deductions even where the break is longer than three months as long as those deductions are linked in some way.

This represents a remarkable change in holiday pay case law. It applies to the whole of the UK, even though this claim related to Northern Ireland. Now, it will be much easier for workers to bring a claim for a series of deductions which stretches back as far as the law allows. In Great Britain, however, there is backstop which limits claims for holiday pay to two years.

First instance Decision

Protected Characteristics – Corby v Advisory, Conciliation and Arbitration Service ET/1805305/2022

This case saw the ET having to determine whether an opposition to critical race theory was a protected philosophical belief under the Equality Act.

Mr Corby describes himself as white. However, he spent a large amount of his life with black people and is married to a black woman with whom he has 2 children with. He claimed to hold a philosophical belief in relation to race, believing that the cause of racial equality was best advanced by valuing people based on their character, not on their race. Mr Corby explained that beliefs are based on the teaching and writings of Martin Luther King. His claim form included complaints of discrimination on the grounds of religion and belief.

The ET had to consider whether this belief amounted to a protected characteristic under the Equality Act by applying the Grainger test. The Grainger test consists of the belief being genuinely held, being more than just an opinion, concerning a weighty and substantial aspect of human life, having cogency and importance and being worthy of respect in a democratic society. In this instance, the ET found that Mr Corby’s beliefs on race satisfied the Grainger test and therefore were protected under the Equality Act as a philosophical belief.

What’s New?

Worker Protection (Amendment of Equality Act 2010) Bill receives Royal Assent.

This introduces a duty on employers to take reasonable steps to prevent sexual harassment of their employees and gives employment tribunals the power to uplift sexual harassment compensation by up to 25% if this duty is breached.

The Workers (Predictable Terms and Conditions) Act 2023 has received Royal Assent and is expected to come into force in September 2024

This legislation introduces a new statutory right for workers to request a more predictable working pattern. This will have implications for the employers engaged in a variety of sectors.

The right will apply to the following:

• workers whose existing working patterns lack certainty in terms of the hours or times they work;
• workers on fixed-term contracts of 12 months or less (who are able to request a longer fixed-term or the removal of any provisions relating to fixed-term);
• agency workers (who can make their request either to the agency or the hirer provided they meet certain qualifying conditions)

This right will apply to anyone who has 26 weeks’ service (and that service need not be continuous). Those wishing to make a request (an employee is limited to a maximum of 2 applications in any 12-month period) must specify the change being applied for and the date it should take effect. The requested could relate to hours of work, days of work or period of engagement. It makes sense to have a prescribed application form which can be issued to those employees as and when required to ensure the requisite information is provided.

Once an application has been received, employers must deal with any requests in a reasonable manner and notify the worker of their decision within one month. There are specified grounds for refusing the request which include:

• the burden of additional costs, and
• insufficient work during the periods the worker has asked to work.

If a request is granted then employers must offer the new terms within two weeks of granting the request. Employers cannot make detrimental changes to other contractual terms at the same time as making the requested changes.

Although the anticipated commencement date is still 12 months away, it will be prudent for employers to make the necessary preparations for handling these requests ahead of its commencement.

Employment is butter with Mutual Trust and Confidence

Fraudulent sandwich expense claims from an employee lead to the Tribunal deciding his dismissal was fair.

In a recently reported Tribunal decision of Fekete v Citibank it was decided that the claimant’s conduct was a fair reason for his dismissal as his conduct resulted in the breach of Citibank’s trust and confidence.

Mr Fekete went on a business trip in Amsterdam, and claimed expenses for two sandwiches, two coffees and two pasta dishes which he said he had eaten himself. However, his manager queried his expenses as it is Citibank’s expenses policy that it is only expenses incurred by the employee themselves that can be claimed – spousal travel and meals were not reimbursable.

After initially indicating that everything ordered was for him, Mr Fekete later contradicted himself and said that his partner (who was not an employee of Citibank) had accompanied him on the trip, and they had shared his meals.

After the investigation, Mr Fekete was dismissed on the grounds of gross misconduct. He then brought claims for wrongful and unfair dismissal.

The Employment Tribunal held that as a result of Mr Fekete’s dishonesty and misrepresentation his conduct was a fair reason for dismissal. Mr Feteke was provided with plenty of opportunity to make full and frank disclosure, but he decided not to.

The moral of the case is that the implied duty of trust and confidence goes both ways; it is applicable to both the employer and employee. Whilst employers need to have trust and confidence in their employees, this must be reciprocated by the employees with honesty and integrity. This case goes to show that dishonest conduct can have drastic consequences for employees.

You can also view this newsletter as a pdf download here

Welcome to our August quarterly newsletter, in this edition we will have a look at post-termination matters for employers to consider alongside some recent employment law decisions and legislation updates.

Matters for Employers to Consider Post-Termination.

1. Grievances by Former Employees

2. References

3. Dismissals due to Gross Misconduct

4. Constructive Dismissals

5. Post-Termination Restrictions/Restrictive Covenants

6. Subject Access Requests

7. Are your contracts up to date?

Employment Law Decisions

What’s New?

Welcome to our May quarterly newsletter. In this edition we will have a look at what counts as bullying within the workplace and whether noise is preventing employees from returning to the office alongside some employment law decisions that have come out of the Employment Tribunals.

What counts as bullying, why does it matter, and what can be done about it?

News of Dominic Raab’s resignation as Deputy Prime Minister has set off a debate about what bullying is and how it should be handled.

Although most people will have an idea of what kind of conduct might amount to bullying, there is no legal definition. The UK government says it is “behaviour that makes someone feel intimidated of offended”, while Acas says that it can be “malicious or insulting” behaviour or an abuse of power that “undermines, humiliates, or causes physical or emotional harm to someone”.

In some instances, contending with behaviour from colleagues that might amount to bullying can be the final straw. In all instances, workplace bullying for both employees and employers can have disastrous consequences. For example, it could mean lower morale, less productivity, more time off sick, more grievances, and higher staff turnover.

But there are steps any organisation can take to avoid this in its workplace. A key step being the implementation of an anti-bullying and harassment policy. As with any policy, it should be regularly revisited to ensure legal compliance and suitability. It’s important that employers regularly review the suitability of their harassment and bullying policies.

An effective policy helps employees understand what kinds of behaviour will not be tolerated, and it reassures them that there are mechanisms in place to deal with bullying. It can also help the employer to swiftly resolve the issue, often informally in the first instance.

If the bullying or harassment relates to a protected characteristic (such as sex, age or disability, for example), having a policy in place can also help employers ensure and demonstrate that they are taking every step they can to ensure that their staff are treating people fairly. This can be relied on in defence of a claim if it gets that far.

However, it is important to note that it will not be enough for employers to merely have such policies in place. Steps must also be taken to train employees about bullying and harassment and such training must be fairly regular. Large multi-national corporations have recently been in the spotlight for failing to follow and apply these preventative steps resulting in thousands of sexual harassment complaints. For further information on recent legal developments on sexual harassment in the workplace, please see our article titled Is having an anti-harassment policy in place a valid defence to a discrimination claim?

A good starting anti-bullying and anti-harassment policy should at least act as the cornerstone for any organisation. It’s more likely that policies will help an employer to avoid making a rash decision (e.g., unfairly dismissing a person accused of bullying, or ignoring the concerns of someone complaining of bullying).

In any instance of a bullying and/or harassment allegation, these should be addressed.

It may be that the allegation can be dealt with informally. If this doesn’t work, or the informed process is not an option, the next step would be to raise a formal grievance. The employer should address this grievance by investigating any issues raised within it and forming a view on what action to take, if any, on the complaint. If it is well-founded, the employer could consider training, coaching, and/or disciplinary sanctions.

In every instance of an allegation, it is never an option to not address it in the first place. For further information on this topic, visit our website or reach out to a member of our Employment Team.

Employment Law Decisions

Please be aware that “first instance employment tribunal decisions” do not set precedents and are not binding on other courts even where the facts are the same or very similar. These decisions may also be subject to appeal.

Disability Discrimination – Autistic Bus Driver awarded with £29,645.23 for disability discrimination, harassment and victimisation following constructive dismissal.

Tom Holland, a bus driver from York and who worked for A & A Coaches Travel, was diagnosed with Asperger’s in 2002. Asperger Syndrome is a form of autism and under the Equality Act 2012 suffices the definition of ‘disability’ within the Act.

The employment tribunal discovered that Mr Holland was frequently abused at work. He was referred to as “Mr Bean”, “a waste of space” and an “imbecile” by his colleagues. The tribunal heard that Mr Holland dreaded going to work, however, he never reported the name-calling, in hope that the behaviour would stop.

Further incidents saw one of his colleague’s saying at a training session (which was on assisting passengers with disabilities) that “we experience it every day working with [Mr Holland]” and his car was also damaged in the company car park.

Mr Holland resigned from the company after reporting the incident to the police. When he then tried to seek employment at other coach operating companies, A & A Coach Travel contacted them and suggested that Mr Holland had caused damage to their buses and posed a threat to women. This led to a dismissal and a further resignation from his next two places of work respectively. The additionally reported him to the DVLA, expressing concerns about his driving.

The tribunal found that A & A Coach Travel were not able to provide an explanation that was non-discriminatory for their treatment of Mr Holland. The correspondence to the new employers were also viewed as harassment related to disability. The judgment explained that “the conduct found is of unwanted conduct relating to disability – of clear abuse and belittling of the claimant related to his impairment of Asperger’s syndrome.” The company was ordered to pay £25,000 in compensation, £576 in unpaid wages and £4,069.23 in interest.

Unfair Dismissal – Teacher awarded £16,802.31 in compensation following being dismissed for missing a meeting after finding out her mother had been diagnosed with cancer.

Jacqueline Dumigan, a part-time music teacher from Huddersfield, was sacked for missing a staff meeting on her day off. She informed the school that she could not attend due to having to meet with her own family, having just found out that her mother had been diagnosed with cancer.

The school responded to her saying “resignation accepted.” Jacqueline informed the school that she was not resigning, to which they further responded that the previous email was their notice of terminating her employment. No investigation nor formal disciplinary processes were carried out before the dismissal. The Employment Judge concluded that she had been unfairly dismissed and was awarded £16,802.31 in compensation.

The below case has now been heard in the Employment Appeal Tribunal. Please note that although this will be binding on other courts, Employment Appeal Tribunal decisions may also be subject to appeal.

Failed Unfair Dismissal Appeal – Employee ordered to pay £9,995 for what was considered as a ‘vexatious’ appeal.

Doug Anderson, an engineer for Rheon Labs Limited, attempted to bring a claim for unfair dismissal after he was dismissed following an investigation into his behaviour. Rheon denied the claim. On a Friday afternoon, Mr Anderson was seen drinking a beer during a Zoom Meeting whilst working.

This was observed by Mr Anderson’s line manager, Chief Operating Officer, Tim Brown, to which Anderson replied “deal with it” when questioned and challenged by Mr Brown. Additionally, during the Zoom Meeting, Anderson also failed to contribute on certain matters being discussed, as well as turning off his camera. This led to a final written warning and an eventual suspension following an investigation into his behaviour.

The tribunal judge asserted that drinking on a Zoom Meeting was “inappropriate”, the dismissal process and warning given to him were “valid” and thus, the dismissal was fair.

What’s New?

Anything new in employment law/related issues that could impact our clients.

Annual Increase to Employment Tribunal Limits

The Employment Rights (Increase of Limits) Order 2023, which came into effect on 6 April 2023, set out the increases to the awards in the Employment Tribunal.

The new rates will be used for any dismissals taking place on or after 6 April 2023 and are:
• Compensatory Award – the limit on the amount of compensatory award for unfair dismissal has increased to £105,707.00. It was previously £93,878.00.

• Basic Award and Redundancy Payments pay – the cap for this has increased to £643.00 for “a week’s pay”. The previous figure was £571.00 per week.

This means that unfair dismissal claims could carry with them a greater cost. It also means that organisations will have to budget for higher redundancy packages for any redundancies taking effect after 5 April 2023.

Vento Award Increases 2023

So, what does the term “Vento Award” mean? It is the name given to awards made by the Employment Tribunal in relation to “Injury to Feelings” following where a discrimination claim has been brought and won.

The amounts increase on a yearly basis, on 6th April 2023 the amounts for any claim brought after that date increase to:

• Lower band – £1,100.00 to £11,200.00;
• Middle band – £11,200.00 to £33,700.00; and
• Upper band – £33,700.00 to £56,200.00.

Some exceptional cases can exceed £56,200.00.

These are set bands for Vento and within those bands are the amounts expected to be paid to a Claimant. The amount of compensation will depend on the severity of the mistreatment. For further information on the increase to National Minimum Wage, please visit our website: Department of Work and Pensions Rate Increase 2023 : Wilson Brownehttps://dev.wilsonbrowne.co.uk/news/business/department-of-work-and-pensions-rate-increase-2023/

Are Noisy Offices Preventing People Returning to the Office?

The COVID-19 pandemic has brought about a seismic shift in the way we work, with remote working becoming the norm for many people around the world. However, as restrictions start to ease, many companies are bringing their employees back to the office. Recent data from the Office for National Statistics highlighted that 16% of the workforce still worked solely from home between September 2022 and January 2023, whilst 28% were hybrid working. However, this is being revisited in some instances.

One factor acted as giving rise to resistance is the issue of noise in the office.

This is backed up by data collected by Oscar Acoustics which found that 75% of employees think noisy workspaces are preventing them from concentrating on their job.

The impact of noise on productivity and job satisfaction cannot be underestimated, and it is essential for employers to take proactive steps to manage noise levels in the workplace.

The issue of noise is not new –more so in open-plan offices, with some employees struggling to concentrate amidst the constant chatter, phone calls, and other distractions. But with the added stress and anxiety caused by the pandemic, the issue of noise has become more pronounced.

The problem is compounded by the fact that many workers have become accustomed to the peace and quiet of working from home, where they can control their environment and minimize distractions.

For some, the prospect of returning to a noisy, crowded office can be daunting, and in turn impacts their productivity and job satisfaction.

So what can be done to address the issue of noise in the office? See below list:

• Quiet zones: one solution is to introduce more private spaces where employees can work without interruption. This might include soundproofed meeting rooms, phone booths, or designated quiet areas.

• Flexible working hours or remote working options: allowing employees to work from home or adjust their hours to avoid peak periods of noise and activity in the office. Many employees find that they are more productive when working from home, as the noise.

• Conducting a noise audit can help employers to understand which areas are the noisiest and identify any equipment or processes that are causing excessive noise. Implement noise reduction measures: Once the sources of noise have been identified, they can control their environment and eliminate distractions. Employers could also consider investing in noise-cancelling headphones or other technology to help employees block out distracting sounds from the office.

• Implement noise reduction measures. Once the sources of noise have been identified, employers can take steps to reduce noise levels. This could include installing sound-absorbing materials, such as acoustic panels or carpets, or using white noise machines to mask background noise.

• Encourage quiet communication: Sometimes, the noise in the office is caused by people talking loudly or engaging in other noisy activities. Encouraging employees to communicate more quietly can help to reduce noise levels and create a more peaceful environment.

• Create a noise policy: Creating a noise policy can help to set expectations around noise levels in the workplace. This could include guidelines around the use of mobile phones, talking on the phone, or holding meetings. It is important to communicate these guidelines clearly to all employees and to ensure that they are enforced consistently.

• Ultimately, the key to addressing the issue of noise in the office is to acknowledge its importance and take steps to minimise its impact. By creating a more comfortable and quiet workplace, employers can boost employee satisfaction and productivity, and encourage more people to return to the office.

If you need more information on any of the articles in this newsletter please visit our website or email
employmentlaw@wilsonbrowne.co.uk

Welcome to our February quarterly newsletter, in this edition we will have a look at Fire and Rehire and alternative considerations; alongside some employment law decisions that have come out of the Employment Tribunals.

Fire and Rehire

With the continued challenges faced by most, many employers are looking at ways of adapting their workforce to meet those challenges. But is “fire and re-hire” the right way to do this? Given the associated risks, it’s crucial to stay informed of the latest regulations and best practices when it comes to firing and rehiring employees.

What is fire and re-hire?

Fire and rehire is a tool used by employers to change the contractual terms under which a worker, or group of workers, operates under. Unsurprisingly, fire and re-hire has been subject to a great deal of criticism as was the case with P&O ferries last year.

P&O Ferries

In 2022, P&O Ferries evaded UK employment law legislation by sacking 786 employees without carrying out the legally required collective consultation as the employees were sacked with no warning, through a video recorded message.

P&O Ferries claimed they had to act quickly as they were losing £1m a day and then went on to employ replacement workers on lesser terms. This is known colloquially as ‘fire and rehire’. P&O Ferries has not been prosecuted or fined by the government, however reputational damage to the company and the government due to its failure to act has been significant.

Code of Practice

Following on from a rise in ‘firing and re-hiring’ throughout the pandemic (including the large scale, controversial dismissals made by P&O Ferries), on 24 January 2023, the government launched a consultation seeking feedback on its draft statutory “Code of Practice on Dismissal and Re-engagement” (the “Code”). The consultation remains open until 18 April 2023. The draft code does not apply to redundancy situations.

Through this code of practice, the government suggests it will protect employees from being sacked without negotiation or warning. The Code, subject to a consultation, tells employers that they must not use threats of dismissal to pressure employees into accepting new terms, and that they should have “honest and open-minded discussions” with their employees and representatives.

It’s also currently proposed that, where the to-be-published Code is not followed, there will be the power to apply a 25% uplift to an employee’s claim.

In the meantime, the current guidance issued by ACAS makes it clear that fire and rehire should be used as a last resort. Other steps, including a thorough and genuine consultation process, should first be exhausted. At the very least, that should reduce exposure to/success chances of potential unfair dismissal claims.

Risks

Claim risks (including claims for unfair dismissal and breaches of statutory consultation obligations breaches) associated with fire and re-hire practices are high. Additionally, as we have seen in recent times, risk of reputational damage should also factor as a consideration for any organisation contemplating the implementation of this controversial strategy.

Changes to Terms and Conditions – Consent

The use of fire and re-hire to achieve changes to terms and conditions should be a last resort. It is advisable to exercise other avenues first – the obvious example being to obtain consent to any proposed change(s). On occasion, consent can be implied through conduct – such as pay rises. In most instances, express consent is preferable. For this reason, some contracts purport to include an agreement that terms can be varied. However, any changes made in reliance of such an agreement will be subject to a good deal of scrutiny. And any ambiguity will work against the party seeking to rely on it – in this case, this will typically be the employer.

For this reason, it is almost always good practice to carry out a consultation process before changing any terms of employment. Certainly if, the proposal gives rise to significant variations. Not only does meaningful consultation on changes and the reasons for them increase the likelihood that employees will agree, it also mitigates the legal and financial risks associated with pushing through a change and or firing and re-hiring those who do not consent.

Changes to Terms and Conditions – Unilateral changes

Another strategy adopted by some employers is for the employer to unilaterally change the terms and then rely on the employee’s implied agreement. This strategy is more likely to be effective if there is an immediate practical effect on the employee (for example, a pay cut) and they continue to work without objecting. However, a business should not assume that silence is sufficient to indicate implied agreement, especially if there is no immediate impact on the employee.

But this is not for the feint-hearted given it is another high risk strategy given that it gives rise to a breach of contract. In which case the employee can:

• Comply with the new terms but work “under protest” and claim for breach of contract or (if their wages have been reduced) unlawful deductions from wages. Where the change imposed is substantial, the business may be deemed to have dismissed the employee, and therefore the employee may also bring a claim for unfair dismissal.
• Resign and bring a claim for constructive dismissal, if the change is sufficiently fundamental,
• Refuse to work under the new terms (for example, where there is a change in duties or hours).

For more information on changing terms of employment,

please see our guide: https://dev.wilsonbrowne.co.uk/guides/guide-to-changing-terms-and-conditions/

Is it the same as redundancy?

No. Fire and re-hire is used to force through changes to contractual terms.
Instead, redundancy occurs in three different situations: business closure, workplace closure and reduced need for employees.

The one cross-over for fire and re-hire, and redundancy is the collective consultation obligation. If an employer is proposing to make 20 or more employees redundant within a 90 day period, it is obliged to carry out collective consultation with appropriate representatives and notify the Department for Business, Innovation and Skills within a specified timeframe.

In a redundancy scenario, employers should ensure a fair selection process is carried out and carry out individual consultation with those provisionally selected. For any employee ultimately made redundant, the employer will be obliged to provide them with their minimum notice periods and redundancy pay entitlements. Failure to follow these steps could lead to claims being brought against the employer, which could result in significant awards of compensation in the Employment Tribunal. It is important to note that employees with at least two years continuous employment with the business at the point they are made redundant will be entitled to a statutory redundancy payment. Some employees may also be entitled to an enhanced contractual redundancy payment, if their contract of employment or other documents provide for it.

The first step for any business contemplating redundancies is considering whether it can avoid making compulsory redundancies or reduce the number of compulsory redundancies. For example by:
• Implementing less advantageous terms and conditions (using fire and re-hire as a last resort),
• suspending or restricting recruitment;
• reducing or removing overtime opportunities;
• not renewing contractors’ contracts; or
• ceasing or reducing the use of agency workers.
If these steps are unavailable or insufficient, the business could also consider:
• inviting potentially redundant employees to apply for suitable alternative vacancies;
• inviting employees to volunteer for redundancy;
• inviting employees to consider early retirement; or
• temporarily laying off employees or reducing their hours.

For more information on collective redundancy consultations, please see our guide: https://dev.wilsonbrowne.co.uk/guides/collective-redundancy-consultations/

We hope this information proves helpful in navigating these challenging times. If you have any questions or concerns, please don’t hesitate to reach out for further guidance.

Employment Law Decisions

Please be aware that “first instance employment tribunal decisions” do not set precedents and are not binding on other courts even where the facts are the same or very similar. These decisions may also be subject to appeal.

Unfair dismissal – Consultant Nephrologist awarded over £219,000

Jasna Macanovic, a kidney consultant at Portsmouth Hospitals University Trust, brought a whistleblowing claim against her employer when she was dismissed shortly after making a protected disclosure.

Dr Macanovic had expressed concerns on a new procedure for undertaking dialysis knowing that colleagues were also having concerns and some patients were suffering complications. She complained internally at Queen Elizabeth Hospital but having no joy reported to the Care Quality Commission. When the Trust still proceeded with the new process she reported this to the General Medical Council.

At the time of the report to the GMC the Trust started investigating Dr Macanovic’s behaviour. They told the tribunal she was “unmanageable” and work relations were “poisoned”. Dr Macanovic was dismissed in February 2018 for “serious misconduct” following a disciplinary investigation and a hearing.

The judgement of the Employment Tribunal stated “The plain fact is that after over twenty years of excellent service in the NHS, Dr Macanovic was dismissed from her post shortly after raising a series of protected disclosures about this one issue.” The Trust also failed to follow a correct process, even though a non-executive director had been appointed to support Dr Macanovic they never made contact with her. Dr Macanovic had also been excluded from meetings and told not to discuss the dialysis procedure whilst investigations were ongoing.

A remedy hearing was held which awarded Dr Macanovic £186,697 as compensation for unfair dismissal, together with £33,000 for injury to feelings following unlawful detriments for raising protected disclosures.

Unfair dismissal/Discrimination related to pregnancy – University academic awarded almost £130,000

Mrs Law was employed by the University of Cumbria on a series of fixed term contracts. The last of these contracts was funded by an external agency. This contract was due to be extended as the University was to apply for an extension to the funding. Due to the impact of Covid-19 a hold was put on various funding to deal with more Covid related relief work. Mrs Law was dismissed on the expiry of the last fixed term contract on 31 July 2020, whilst she was pregnant and had been informed she had an increased risk of pre-eclampsia.

As part of her appeal, Mrs Law citied an email from the university’s vice chancellor in May 2020 seeking to reassure staff that there would be no redundancies due to Covid-19 and that risk assessments would be done to ensure that any cost-cutting measures did not disproportionately affect vulnerable groups.

The Tribunal found that the University did not follow a correct process. No meaningful discussion in relation to redeployment had been undertaken. Mrs Law also raised inappropriate comments that had been made by a line manager about her pregnancy during a redundancy meeting.

Mrs Law’s unfair dismissal claim was well-founded and succeeded, her claim of discrimination of grounds of pregnancy only succeeded in part. Various other claims, including claims arising from her status as a fixed-term worker, were unsuccessful. The Tribunal Judge said “the decision to make her redundant was “predetermined” and “tainted by discrimination in a way which is unlawful”.

There was a remedy hearing in this matter at which the Tribunal ordered the University to pay the sum of £129,133.39 to Mrs Law in relation to financial losses she sustained as a result of the acts of unfair dismissal and discrimination. A further remedy hearing will be set to assess Mrs Law’s non-financial losses and other outstanding matters.

The below case has now been heard in the Employment Appeal Tribunal. Please note that although this will be binding on other courts, Employment Appeal Tribunal decisions may also be subject to appeal.

Direct Sex Discrimination – Office Clerk – award yet to be set

Ms Miller was employed as an Office Clerk at Earl Shilton Town Council which operated from a church building that also played host to a playgroup. The ladies’ toilets were situated in the part of the building used by the playgroup and used by the children attending it. Due to safeguarding requirements any ladies wishing to use the ladies’ toilets had to get the attention of a member of playgroup staff to ensure no children were in the toilets. This, by its nature, meant that the toilets were not available for “urgent” use.
There was the option for females to use the male toilets however entry was via urinals, there was no sanitary provision and males may have entered the toilet whilst a female was in there.

Ms Miller ‘won’ the original tribunal however the Council appealed arguing that,
1. the less favourable treatment could not be because of sex where the toilet arrangements resulted from safeguarding requirements and;
2. that there was no less favourable treatment given the risk a man faced of being observed when using the urinal was equivalent to that of a woman seeing the man use the urinal.

The appeal was dismissed by the EAT who applied “‘robust common sense’ considering the nature of the treatment, the Claimant was not provided with toilet facilities that were adequate to her needs, because of the risk of coming across a man using the urinal and the lack of a sanitary provisions”.

A remedy hearing is yet to be held to set the award.

Menopause Update

UK Employment Tribunals cases involving menopause are increasing, with more workers ready to challenge companies that are failing to recognise the symptoms and impact of the menopause. This is making many employers consider how the menopause is viewed and catered for in the workplace.

However, the government has rejected a call to make menopause a protected characteristic. It has responded to the Women and Equalities Committee suggesting that “making menopause a tenth protected characteristic under the Equality Act 2010, would not protect employees experiencing discrimination related to their menopause symptoms”. Going on to say that as age, sex and disability are covered by the Equality Act this should provide protection against the unfair treatment of employees suffering from the menopause, agreeing with evidence from organisations including Business in the Community, which suggests that further legislation would be a “blunt tool”.

Menopause tribunals are still divided between sex discrimination and disability discrimination cases. The Women and Equalities Committee had also made a request to enact Section 14 of the Equality Act, the government has also rejected this. Section 14 includes a prospective provision for employees to bring dual tribunal claims for discrimination relating to a combination of protected characteristics, for example, age and sex. The government believe that enacting section 14 would place on employers “the potential for creating new areas of dispute over self-identity and concerns about hierarchies of rights”.

Women and equalities committee Chair, Caroline Nokes, said in a letter to health minister Maria Caulfield, the government’s response has “ignored the significant evidence base” for equality law reform and “this belated response to our report is a missed opportunity to protect vast numbers of talented and experienced women from leaving the workforce, and leaves me unconvinced that menopause is a government priority”.

What’s New?

The Department of Work and Pensions has issued its rate increases which come into effect in April 2023 for the 2023/24 tax year.
The Minimum Wage and National Living Wage will increase as below:
Age 23+ – £10.42 (previous rate £9.50)
Age 21-22 – £10.18 (previous rate £9.18)
Age 18-20 – £7.49 (previous rate £6.83)
Age 16-17 – £5.28 (previous rate £4.81)
Apprentices – £5.28 (previous rate £4.81)

Alongside this the Accommodation Offset will increase from £8.70 to £9.10 per day.

Other increases are:
Statutory sick pay. This will increase from £99.35 per week to £109.40 per week.

Statutory maternity, paternity, adoption, shared parental leave and parental bereavement pay. This will increase from £156.66 per week to £172.48 per week.
Please be aware of the changes and any impact that they will have on your budgeting and/or payroll.

Cake … is a made up drug

Some of you may remember this line from the 1990’s satirical comedy “Brass Eye”. However, it appears that since our return to office working, the regular supply of cakes for birthdays, retirements and other celebrations may be having a negative effect on our health.

The chair of the Food Standard Agency has suggested that bringing sweet treats, such as cakes, into the workplace could be as harmful to our colleagues as passive smoking.

Susan Jebb who, as well as being chair of the Food Standards Agency, is a professor at the University of Oxford in diet and population health. She is quoted as saying “If nobody brought cakes into the office, I would not eat cakes in the day. But because people do bring cakes in, I eat them. Now, OK, I have made a choice, but people were making a choice to go into a smoky pub.”

She goes on to say that after a long time we came to understand the effort we needed to make to avoid passive smoking, however we don’t feel that way about food yet. People have to use personal willpower to ignore the treats brought into work.

So, is the celebratory cake contributing to the country’s obesity epidemic and so should be banned/regulated or is this taking matters too far given it’s nice to feel part of someone’s event for those staff who are office/shop/factory based and part of the workplace community?

We will wait and see whether the findings of The Food Foundation’s report last summer which indicated that “excess weight and obesity is costing the UK £72 billion every year through NHS costs, lost productivity at work and reduced life expectancy”. But either way, given that Marks & Spencer’s former chairman (Stuart Rose) has said that it should be a “legal obligation to do something about our employees’ health” I wonder whether we shall be enjoying “cake” in the office or whether it will, instead, be seen as “a made up drug”?

If you need more information on any of the articles in this newsletter please visit our website or email employmentlaw@wilsonbrowne.co.uk

Welcome to our November quarterly newsletter, in this edition we will have a look at Christmas Parties and Suspension of Employees, alongside some employment law decisions that have come out of the Employment Tribunals and “What’s New” in employment.

Don’t Get Yourself in a Fizz

After a couple of years of not being able to celebrate “normally,” many firms will be looking to hold a joyous Christmas event this year to reward their teams for all the hard work they have put in, meet new staff members and ensure integration where staff are working remotely.

In order to strike the balance between a party experience and work beware of the pitfalls and risks to avoid. Some key planning considerations are:

Who should be invited?

The event must not exclude staff. Don’t forget those staff who may be on maternity leave or be out of the business for any reason. Leaving someone out could not only demotivate, but it may also leave your organisation open to a constructive dismissal or a discrimination claim.

When to hold the party?

With a view to being as inclusive as possible, think about the timing of the party. This includes:

• What day of the week is most suitable, and
• What time of the day works best for staff – lunchtime or evening?

Many organisations approach these questions by surveying staff for their preferences before going with a majority decision.

Where should it be held?

Some organisations elect to hold parties in the workplace. Many prefer external venues. Ultimately:

• Whatever venue you choose, ensure it is accessible to all employees.
• Remember that Covid-19 has not gone away – consider if there are any measures you would want your venue to have in place.
• Think logistics – how are staff getting there? Your duty of care towards your employees extends to work functions. So consider questions such as are there facilities at the venue or locally for staff who may want to stay over/are you going to provide transport? These questions become pertinent still if the venue is “off the beaten track”.

Setting out expectations

This is still a work event, your duty of care as an employer exists and therefore many of your policies will apply. Consider sending a communication to all staff in advance of the party as a general reminder that rules around respecting one another still apply. There may be other policies that you will want to remind them about – such as social media, drug, and alcohol policies.

Any inappropriate behaviour should be dealt with after the event in accordance with the organisation’s disciplinary procedure.

Will there be a free/subsidised bar?

Alcohol can be the cause of many issues such as inappropriate behaviour and lapses in judgement. As an employer, you may still be vicariously liable for staff conduct that happens at off-site, after-hours work functions. If you are providing a free/subsidised bar, consider ways to manage alcohol consumption; for example:

• A volunteer to monitor the situation (do not just assume this should be a non-drinker).
• Limit the amount of alcohol on offer, intersperse with soft drinks.
• There is now a much higher number of people who do not drink for various reasons, health, religion and personal choice. Make sure they are catered for at the event.

With a little pre-planning and thought you should be able to ensure this year’s event is remembered for all the right reasons!

Suspension of Employees

All too frequently, suspension is automatically implemented when an employee is faced with an allegation of gross misconduct; some believe it to be a necessity in such instances.

ACAS has recently sought to debunk this myth by recently publishing its revised guidance on the suspension of employees during investigations.

Suspension should not be implemented in every case where an investigation is being undertaken into alleged misconduct. It should be reserved for the more serious instances of alleged misconduct; and whenever an employee is suspended, that employee should be reminded that the suspension is in no way an indication of guilt.

To avoid knee-jerk decisions, the key is having an initial understanding of the allegation. The ACAS guidance makes specific reference to knowing:

• What has happened;
• Who is involved; and
• How serious it might be.

This doesn’t require an in-depth knowledge, but the basics should be known.

From this, you should then be in a position to decide whether suspension is appropriate.

Generally, suspension should be invoked in a minority of cases where the company is seeking to look to protect:

• the investigation – if you believed the alleged could impact it in some way, for instance being in contact with a possible witness;
• the business;
• other staff; and/or
• the person who is being considered for suspension.

In every instance, alternatives to suspension should be first considered. ACAS gives a number of suspension alternatives in its guidance, which include:

• Changing staff shifts;
• Having staff work in different parts or locations of the organisation;
• Home working; and
• Stopping part of the accused’s job, if it is relevant to the investigation;

With all the above said, it must be kept in mind that suspension should not lead to any predetermined decision, and remember, as an employer, you will have an ongoing obligation to the accused. You should therefore be mindful of the accused wellbeing, and plan what support they will need if they are suspended.

And finally, do keep any suspension under review – when the reason for the suspension comes to an end, so too should the suspension.

Employment Law Decisions

Please be aware that “first instance employment tribunal decisions” do not set precedents and are not binding on other courts even where the facts are the same or very similar.

These decisions may also be subject to appeal.

Unfair Dismissal – Bar Staff, dismissed after sharing a post on social media bad mouthing the Company and Owner of the bar, awarded £3,000.00

Miss Trench, who worked as bar staff at Trebles in Lincoln, claimed unfair dismissal after being dismissed from her role. Miss Trench’s partner, who had himself previously been an employee at the same bar, posted on social media bad mouthing both the bar and Mr Patel (the owner).

Miss Trench agreed with his views and shared the post on her social sites – Facebook and SnapChat. She later removed the post, however, it had already been seen and commented on. Miss Trench did apologise to the Company for sharing the post. It was noted that the post had already been taken down by moderators of a Facebook groups Miss Trench’s partner had shared it on.

Following the post Miss Trench was called to a meeting on 25 October and suspended with immediate effect. She received a letter confirming her suspension, this letter stated that she was being suspended “pending investigation into an allegation of misconduct” and that “when we have carried out our investigation, we shall write to inform you whether we intend to hold a disciplinary hearing. If we consider that there are grounds for disciplinary action we shall inform you of those grounds in writing and you will have the opportunity to state your case at the hearing, in accordance with the Disciplinary Procedure”.

Although Miss Trench was told that an investigation would be carried out, none was in fact carried out. The Company took advice from a business consultant and were told to focus on the comments made in the Facebook post about the Company and dismiss Miss Trench for the comments made about Trebles.

Miss Trench was subsequently invited to a disciplinary meeting and, although the Company had written in the letter suspending her that the grounds for disciplinary action were not set out in writing, the Company did not have a disciplinary procedure in place.

Miss Trench was however told that she could bring a representative to the meeting with her. The Employment Tribunal found that the punishment was too severe. That Miss Trench had been unfairly dismissed without a proper investigation or right to appeal.

Her claims for automatic unfair dismissal under section 103A of the Employment Rights Act 1996 and victimisation both failed and were dismissed.

Harassment – Vodafone shop employee awarded over £30,000.00

Ms C was employed at a Vodafone store in Scotland. She made a claim following various comments and conversations had about her sexual orientation and gender. She was asked many inappropriate questions and had many comments aimed at her.

The Tribunal awarded £1,101.10 plus interest for the harassment she received AND £25,000.00 plus interest in relation to Injury to Feelings. The compensation was then uplifted by a further 10% as the Company had failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures.

Discrimination – The Claimant was a Christian who wore a crucifix – awarded in excess of £22,000.00

There was a policy that prohibited the wearing of jewellery, with limited exceptions. Religious jewellery may be an exception, following an adequate risk assessment.

A risk assessment was conducted following a dispute, but the employer insisted on its removal. Claimant continued to refuse. Employer dismissed immediately, with the Claimant still on probation.

A claim of direct and indirect discrimination was brought. The Employment Tribunal found that risk assessment had not been completed adequately – there had been no follow up discussion on possible mitigation of risk and that the policy amounted to indirect discrimination and the Claimant was awarded in excess of £22,000.

What’s New?

At the time of going to press, the new government has made a number of announcements regarding employees’ rights and how these might be revised going forward. These announcements include:

1. Removal of regulations in relation to workers’ rights within businesses of less than 500 employees.
2. Reductions to gender pay gap and executive pay ratios reporting.
3. The removal of employments right for those who reach a certain salary threshold.
4. Replacing the UK GDPR with a bespoke British data protection system.

P&O Settle with Ex-Sous Chef who brought Employment Tribunal Claim

John Lansdown, who worked for P&O on cross channels ferries, waived the pay-out that P&O were offering following the mass sacking in 2021, and brought a claim in the Employment Tribunal for unfair dismissal, racial discrimination and harassment.

Mr Lansdown, 40, has received an “out of court” settlement after a six month battle when P&O accepted that the dismissal was unfair. Mr Lansdown has donated the settlement to the Sailors Children’s Society.

The Charity will use the money to support disadvantaged children of seafarers living in poverty throughout the United Kingdom.

Considering the Employment Tribunal case in respect of Miss Trench, do you need a Social Media Policy?

With social media usage being so high, and with so many platforms available for people to use, it is time to consider having a Social Media Policy or updating any IT policies you have to incorporate social media usage?

A Social Media Policy will assist your employees in knowing what they should and should not do on any channels that they use. It can also help the organisation to grow its presence as social media is often used as another tool to grow a brand, and, setting out clear guidelines of what can be used assists in any usage being done in the right way.

The laws that govern comments printed in a newspaper, or spoken in the street, also cover social media. These include offences such as libel – a defamatory statement that is written.

A social media policy needs to be looked at as a ‘living document’ due to the constant changes in the online landscape and should be reviewed regularly and updated accordingly.

If you would like assistance in reviewing or creating Social Media and IT Policies please do not hesitate to contact a member of the employment team.

Welcome to our August quarterly newsletter, in this edition we will have a look at Hybrid & Flexible Working and “Banter” alongside some employment law decisions that have come out of the Employment Tribunals.

The Hybrid & Flexible Working Revolution

We’ve all heard of it; a lot of us are probably doing it – it does, after all, seem to be “the new normal”. What was initially an emergency response to a global pandemic to which we had to quickly adapt and overcome perhaps now needs a full and thorough review for the benefit of both the business and the employees.

With limited space it’s obviously difficult to get into the finer detail, but here are a few important considerations.

Getting the basics right:

• Budgeting & Planning – Do you need an allowance for essentials at home such as office equipment: Allowing people to work on kitchen tables with domestic chairs not meant for prolonged work could lead to claims at a later date.
• Set the parameters – agreed days of the week for remote working, and the hours. There is a tendency for people to sit at home and ‘plough through it’ which is not ideal – employees still need breaks and the working time directive may come into play.
• Insurance – who’s insuring “the kit” in the home?
• Health and Safety Assessments – don’t just tick the boxes: make sure the work environment is fit for purpose.
• Disability – Do you need to help the employee with reasonable adjustments to work from home?
• Contracts: do they need reviewing and updating – place of work; hours of work; expenses; home working trial period; confidentiality and Data Protection (how are confidential documents stored at home? Could sensitive information be overheard during phone calls?)
• Policies: review and update – Data Protection Impact Assessments (DPIAs); Data Privacy; Data Security and Protection; IT and Communications Systems; Social Media Policy

We can only scratch the surface here so if you’d like a more in-depth discussion contact our Employment team via newenquires@wilsonbrowne.co.uk with “hybrid working” in the subject; or call 0800 088 6004.

“Half Dead Dave” and “Not Now Stacey”… a tale of nicknames, reputational damage, and costly pay-outs.

“It’s just banter” – how many times have we all heard that?

The problem is banter, when it seems to be never-ending can cross the threshold and for someone on the receiving end it can be hurtful and bullying.

What may seem funny to co-workers can in fact be quite distressing for those on the receiving end, and potentially cost employers…well…£millions.

“Half Dead Dave” is Dave/David Robson aged 69, who was dismissed from his role with Clarke’s Mechanicals on the grounds of redundancy, although he was given no warning and no consultation.

However, not all was as it seemed and that is why he was awarded a total of £24,926 in compensation.

Dave had been taunted over the years with an inappropriate nickname “half dead Dave” which alarmingly, originated from a member of the management team. The nickname became widely used in the workplace, leaving him feeling understandably distressed and anxious.

The tribunal found that the employer had tried to hide its wrongdoings behind a sham redundancy process. Despite having an impressive 55 years of experience as a plumber, he received one of the lowest scores when he was ranked amongst 17 of his colleagues. This was the employer’s justification for deciding that Mr Robson would be the one selected for redundancy.

Mr Robson brought a tribunal claim against the employer for unfair dismissal and discrimination. His supervisor admitted to using the cruel nickname but said it was intended to be banter as opposed to a malicious comment.

Unsurprisingly this argument did not hold much water. The judge found that the dismissal was discriminatory in its nature and went on to say “Discrimination of any form is not just banter”.

“Not Now Stacey” (Stacey Macken) is a female banker for BNP Paribas who has been awarded £2,081,449 (yes, just over £2 million!) in what is thought to be one of the largest pay outs in a British tribunal.

Ms Macken’s claim was one of equal pay in that her male counterparts with the same role and responsibilities as her would be paid considerably more.

Her other successful claims included sex discrimination and victimisation.

She was also subjected to years of belittling comments from her colleagues and was frequently told “not now Stacey” whenever she tried to ask a question. On one occasion in 2013, she returned to her desk to find a witch’s hat that had been placed there by a drunken male colleague.

Allegations were also put to the tribunal about how the company had divided tasks into pink and blue jobs, the latter being the more favourable ones, often given to male employees.

Through the years and after raising her concerns, Ms Macken was given “sham pay rises” which were still incomparable to her male colleagues. This meant that the pay inequity remained.

In reaching its conclusion, the tribunal judge said “We consider…that Mr Pinnock and Mr Pihan behaved spitefully and vindictively towards Miss Macken because she had raised concerns about her pay and that they did have a discriminatory motive.

We consider the [bank] should apologise more fully from a purely moral perspective, but we decline from ordering it to do this.”

Aggravated damages are not very often awarded but they are designed to provide compensation for mental distress or injury to feelings caused by the manner or motive of the employer’s wrongdoing.

Alarmingly though, even after the case was concluded, Ms Macken confirmed that the employer had still not sought to equalise her pay.

For more information on identifying a pay gap in your organisation, please visit https://dev.wilsonbrowne.co.uk/news/business/check-gender-pay-gap/

The moral of this is clear: banter is OK and part of office life; but bullying, discrimination, and treating others disrespectfully is not OK. Be careful that you, your co-workers, or your employees do not cross the line.

Employment Law Decisions

Please be aware that “first instance employment tribunal decisions” do not set precedents and are not binding on other courts even where the facts are the same or very similar. These decisions may also be subject to appeal.

Harassment – Teacher forced to express milk in school toilets or car.

A separate hearing is to be held to determine the remedy

Ms Mellor, a teacher at Mirfield Free Grammar School (part of The MFG Academies Trust), took her employer to Employment Tribunal after they refused to give her use of a room to express milk following the birth of her second child and return to work.

She had been given the use of a room to breastfeed in after the birth of her first child but due to Covid restrictions her second child could not be brought into the school so expressing herself was her only option.

The Tribunal found “The respondent did force the claimant to express milk in the toilet and in the car.

This was daily, on the days the claimant was at work, from her return to work on 30 September 2020 until 16 December 2020 which was her last day at work.

They also found that the respondent failed to provide suitable facilities for expressing.

In the ET’s judgment, and on the basis of the respondent’s evidence, this is less favourable treatment than would have been afforded to the male comparator. The respondent was clear that facilities would have been made available for a diabetic man to inject insulin. Facilities for the claimant to express were not made available to her.”

Unfair Dismissal – Solicitor awarded more than £17,000 following unfair dismissal whilst recovering from cancer

Ms Onibere, who worked as a solicitor at Rodman Pearce Solicitors, received notification of termination of her employment whilst on sick leave recovering from cancer treatment.

There was a clause in her employment contract which set out that employment would cease if absent due to sickness for 26 weeks within a year which the Respondent based their termination notification on.

What the Respondent had failed to take into account was that under the Equality Act 2010 the Claimant was considered disabled due to her cancer diagnosis and therefore had a protected characteristic.

During the course of the Tribunal hearing Mr Akilo of the Respondent acknowledged that with hindsight he should have taken specialist employment advice and did apologise to the Claimant for any distress caused.

A remedy hearing was later held to decide the compensation due where the Respondent was ordered to pay £17,007.59 which included unfair dismissal, wrongful dismissal, an ‘injury to feelings’ award, and two weeks’ pay the Claimant should have received.

Reference Checklist

More often than not, as an employer, you will be asked to provide a reference.

There is no legal obligation to do this – some exceptions for certain positions/sectors do apply. There may also be a clause in an employee’s contract of employment giving you an express obligation to provide a reference.

You should comply with your contractual obligations if this is the case. When writing a reference consider the following “Dos” and “Don’ts”:

Do

• Check whether the duties (above) or any exemptions apply.
• Consider having a “Written Reference Policy” as to what you would want reference to include; factual information; dates of employment; job role(s).
• Mark any references you give “private and confidential”.
• Do you want a “disclaimer of liability” included.
• Consider any data protection obligations. Be mindful of special category data.

Don’t

• Include any inaccurate, false or misleading statements
• Exclude any relevant information – it could result in a misleading reference
• Include any statements that might contravene the Equality Act 2010.

Neurodiversity

What is neurodiversity? Each person has a brain that is unique to them; no two brains are quite alike. For over a million people in the UK, these differences mean they are diagnosed with autism, ADHD, dyslexia, dyspraxia, or other neurological conditions (source thebraincharity.org.uk)

Whilst we ensure that hearing loops are installed for hearing impaired people and buildings are wheelchair accessible the Equality Act requires employers to put in place “reasonable adjustments” for staff with “invisible” disabilities. Employment Tribunal neurodiversity claims rose by a third last year, likely to be related to an increase in diagnosis of conditions together with increased awareness.

Do not make assumptions based on the well-known characteristics of an illness but spend time with your employees discussing what their needs actually are and working together to accommodate these.

Since the pandemic people have been more open to talking about mental and physical health conditions and identifying ways to improve their productivity and their working environment.

The jump in the number of tribunal cases related to neurodiversity is a signal to employers to be more aware of the various aspects of neurodiversity.