Matthew Chilcott

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28 03 2024

Hilton Foods Solutions Ltd v Wright – Parental leave: Detriment for seeking to take | Consensus HR | Herts, Beds

Matthew Chilcott Blog, Employment Law, General #bedfordshirebusinesses, #consensushr, #hertfordshirebusinesses, #outsourcedemploymentlaw, #outsourcedhumanresources, Business, Business Owners, employment law, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

To be protected against suffering a detriment for seeking to take parental leave, an employee does not formally have to apply to take the leave.

Note for employers:

This provides useful clarity on a particular point of law, and with family related rights under the spotlight as new entitlements are given and existing ones are changed, anything that makes the management of these clearer would be welcomed by employers.

As a result of this case, employers should bear in mind that the protection offered under the regulations arise even where an informal request or indication to make one has been made, and that this protection applies before two years’ service is reached. Employees who make such enquiries or indications should be treated reasonably and fairly both in relation to their leave request and in any other unrelated proceedings or processes that are undertaken.

Law:

The law provides protection from dismissal because an employee has “sought” to take parental leave via a combination of Section 99 Employment Rights Act 1996 (“ERA”) and Regulation 20 of the Maternity and Parental Leave etc. Regulations 1999 (MPLR).

Section 99 of the ERA provides that an employee should be treated as unfairly dismissed where the reason (or main reason) for the dismissal relates to leave for family reasons, including parental leave. Regulation 20 of the MPLR adds that this applies where the employee “took or sought to take…parental leave”.

Facts:

The claimant was employed as a Logistics/Supply Chain Manager, working for the respondent for a little over a year before being dismissed on grounds of redundancy. Prior to his dismissal, the claimant had informally discussed taking unpaid parental leave to look after his disabled son with his colleagues, including the HR department, his line manager and the respondent’s managing director. On speaking to the managing director of his intentions, the claimant was reportedly told “so you want to go f*ing legal then” and that he was expected to be in the office “Monday to Friday, 8-5pm with no exceptions”. This was reported to HR, but the behaviour was dismissed as typical for the managing director. In the end, the claimant did not at any time make a formal request to take Parental Leave.

Following the dismissal, the claimant brought a claim for automatic unfair dismissal on the basis that the real reason for the dismiss was his intention to request parental leave, and not redundancy as the respondent had purported.

Employment Tribunal (ET):

At a preliminary hearing the respondent applied to strike out the claim on the basis that it had no reasonable prospect of success. This argument before the ET was based on the fact a formal request for parental leave was never in fact made, despite the claimant acknowledging that this was a requirement to take the leave. As no formal request had materialised, the claimant had not, the respondent argued, as a matter of law have sought to take parental leave, which is necessary for the legal protection to apply.

This was rejected by the ET. It was held that the claimant had made informal enquiries regarding taking parental leave and made it clear on a number of times that he intended to take it. This was sufficient for the ET to find that the claimant had ‘sought’ to take parental leave.

This was appealed by the respondent on the basis that the MPL regulations required a written application to be made in order for it to be said that an employee has sought to take parental leave.

Employment Appeal Tribunal (EAT):

According to the EAT, there is no absolute requirement under the MPL Regulations for an employee to have given notice as set out in those regulations for an employee to have “sought” to take parental leave. The word “sought” is an ordinary English word and in this regard, it should be given its ordinary meaning. Whether or not an employee had sought to take leave under the MPL regulations was therefore a question of fact. Had it been intended otherwise, the regulations would specify that the giving of notice was required for the protection against dismissal to apply, rather than using “sought” instead.

HRInform

Our HR Comment / Advice: – Hilton Foods Solutions Ltd v Wright – Parental leave: Detriment for seeking to take | Consensus HR | Herts, Beds

Matthew Chilcott, Owner of Consensus HR comments: “This is a very interesting recent case and demonstrates that even though it may say in a company’s HR Policies and Procedures that you must apply in writing, if an employee has demonstrated that they intend on taking a specific employee right, this should be seriously taken into account and not ignored, if no official application is received. Employers need to ensure that should any member of the team demonstrate an interest / wish in any employee rights that this is considered and taken into account when any other HR measures are considered. In this situation, and as outlined the two-year ruling did not apply due to the subject. At Consensus HR, we always ensure that our clients follow the law to best practice and the law regardless of length of service and from day one of employment”.

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If your business always wishes that it works in all areas to the benefit of the team and company and as an employer of choice, give us a call or email now for a non-obligatory chat. Consensus HR | Your Outsourced Human Resources and Employment Law Department | “Helping companies take the pain out of managing people whilst Preventing People Problems.” 01438 576750

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26 03 2024

March 2024 Employment Law Newsletter | Consensus HR – Herts, Beds

Matthew Chilcott Blog, Employment Law, General, Newsletter #bedfordshirebusiness, #hertfordshirebusinesses, #outsourcing, Business, Business Owners, employment law, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

Welcome to our latest employment law newsletter. In this newsletter, we are focusing exclusively on the changes that will come into force in April 2024.

National Minimum Wage Increases

The National Minimum Wage (NMW) will experience increases effective from 1 April 2024. For people over 21, the National Minimum (Living) Wage will elevate from £10.42 to £11.44. Those aged between 18-20 will see an increase from £7.49 to £8.60, while individuals aged 16-17 and apprentices will observe a rise from £5.28 to £6.40. The NMW, a mandatory wage floor for all employers, regardless of size or sector, must be upheld. Employers may set wages above this threshold but cannot pay less than the levels mandated by the National Minimum Wage Act 1998 and the National Minimum Wage Regulations 2015.

Holiday Pay

Holiday pay calculations will see new regulations effective from 1 April 2024. Part-time and irregular-hour workers will have their holiday entitlement accrue at 12.07% of hours worked per pay period. Employers can opt to pay holiday pay when taken or include it in employees’ regular salaries (rolled-up holiday pay), with the latter based on 12.07% of income for the relevant pay period. Employers must itemise the holiday portion on employees’ payslips. These changes apply to holiday years starting on or after 1 April 2024.

Paternity Leave

Regarding paternity leave, employees with an expected week of childbirth (EWC) or adoption placement starting from 6 April 2024 can opt for one or two weeks of continuous leave, or two non-consecutive weeks. They must take leave within a year of childbirth or adoption, with exact dates confirmed at least 28 days beforehand. Pregnant employees will have priority for alternative roles in case of redundancy from 6 April 2024 until 18 months post-birth or adoption placement.

Shared parental leave lasting less than six weeks ensures redundancy protection during that period; however, leave exceeding six weeks grants protection for 18 months post-birth. Carer’s leave, offering five unpaid working days annually from the start of employment, can be taken in single or half days with a notice requirement of three days. Employers can delay carer’s leave if necessary to minimise business disruption, provided approval is given within one month.

Flexible Working

From 6 April 2024, the right to request flexible working becomes available from day one of employment. Employees in England, Scotland, and Wales can make two flexible working requests within 12 months. Employers must consider and explore alternatives before declining requests and respond to the employee requesting flexible working within two months.

Sexual Harassment

From April, under the Worker Protection (Amendment of Equality Act 2010) Act 2023, employers bear the responsibility to prevent sexual harassment in the workplace, with a focus on taking reasonable steps to do so. If found in breach, compensation awarded by the Employment Tribunal can be increased by 25 per cent.

This newsletter does not provide a full statement of the law and readers are advise to take legal advice before taking any action based on the information contained herein’.

Our HR Comment / Advice: – March 2024 Newsletter | Consensus HR | Herts, Beds, UK

Matthew Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: – “April 2024 sees a number of Employment Law Changes across a range of areas, and it is important that businesses keep up with the changing of Employment Law so that they are always working to best practice for the benefit of the team and success of the business. At Consensus HR, we ensure that all our monthly retained clients who have invested in an Employee Handbook for their team and business continually have their copies updated and recommend that all members of the team are briefed on the changes, generally through the use of the fully interactive HR IT system.”

Sick people leave workforce at record highs | Consensus HR | Herts, Beds

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25 03 2024

Sick people leave workforce at record highs | Consensus HR | Herts, Beds

Matthew Chilcott Absence Management, Blog, General, Health & Safety #ConsenHR, #consensushr, #outsourcedemploymentlaw, #outsourcedhumanresources, #outsourcing, #sickness, Business, Business Owners, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's

The number of people in the UK leaving the workforce due to long term sickness has hit the highest level on record, according to Resolution Foundation analysis. The number of adults who are economically inactive due to ill-health climbed from 2.1m in July 2019 to 2.8m in October 2023, marking the “longest sustained rise” since 1994-1998, when records began. The rise in long-term sickness means the UK is the only G7 economy which has not returned to its pre-pandemic employment rate. Louise Murphy, senior economist at the Resolution Foundation, said Britain’s labour market is “finally returning to normal,” but warned that the pandemic “has left an alarming legacy of the longest sustained rise in sickness-related inactivity since the 1990s.”

She noted: “Younger and older people together account for nine-tenths of the rise in overall economic inactivity,” and warned that this could have “serious effects both on individuals’ living standards and career paths, as well as wider strains on the NHS and welfare spending if we fail to improve the nation’s health and reduce economic inactivity.” Shazia Ejaz at the Recruitment and Employment Federation, believes long NHS waiting lists “are a big factor for why not enough people are well enough to work,” adding “Better infrastructure around transport, childcare and social care will all help tackle the inactivity challenge the UK faces.”

BBC News

The Observer

Our HR Comment / Advice: Sick people leave workforce at record highs | Consensus HR | Herts, Beds

Matthew Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: – “This article which was shown on the BBC over the weekend demonstrates how difficult it still is for businesses within the UK, when dealing with sickness. The Pandemic may have officially finished but its repercussions as still dominant within the workforce. At Consensus HR, we work with our clients to ensure that the best HR Policies & Procedures are put in place to support the team and the business and that they are managed and implemented correctly. We are Partners with Breathe HR an IT system that makes it easy to manage correctly whilst ensuring the correct support and guidance is offered to the team member and management.

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Are you concerned about your team and sickness within your business?

If you run a business with a team and are concerned about the latest news / statistics in relation to sickness and wish to ensure you have the best HR Policies and Procedures for the benefit of the team and business, give us a Call Now. Consensus HR | Your Outsourced Human Resources & Employment Law Department. | Helping companies take the pain out of managing people whilst Preventing People Problems – 01438 576750

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22 03 2024

Construction firm fined after worker dies from fall | Consensus HR – | Herts, Beds

Matthew Chilcott Blog, General, Health & Safety #bedfordshirebusiness, #consensushr, #Health&Safety, #hertfordshirebusinesses, #outsourcedemploymentlaw, Business, Business Owners, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

A construction company in Kent has been fined after a sub-contractor fell and died from his injuries.

Mark Tolley, 51, fell nearly two metres through an opening in a scaffold on 5 July 2017 while working on the construction of six houses on Smarden Road in Headcorn, Kent.

He sustained several broken ribs and serious internal injuries including a punctured lung. He later died on 13 July 2017.

Mr Tolley had been installing vertical hanging tiles on one of the new properties when he fell 1.8 metres through an unguarded opening in the scaffold and landed on the ground below.

An investigation by the Health and Safety Executive (HSE) found Amberley Homes (Kent) Ltd, the principal contractor for the project, had not appointed a person with the necessary skills, knowledge, experience and training to manage the construction site. The company had not ensured that a safe working platform on the scaffold was maintained throughout the different phases of the project. Access to and from the first lift working platform was unsafe as multiple openings had been made which could subsist for several weeks. The openings were unguarded and therefore there was a significant risk of falling circa 1.8 metres from the working platform.

Amberley Homes (Kent) Ltd did not control the site effectively. Its monitoring was ineffective as it did not act on concerns raised by its safety consultant when he drew the problems with site management.

HSE guidance states principal contractors must plan, manage, monitor and coordinate health and safety in the construction phase of a project. More on this can be found at: Construction (Design and Management) Regulations 2015 (hse.gov.uk)

Amberley Homes (Kent) Ltd, of London Road, Sevenoaks, Kent, entered a guilty plea to breaching Regulation 13(1) of the Construction (Design and Management) Regulations 2015 during a trial at Maidstone Nightingale Court in January 2024. The company was fined £25,000 and ordered to pay £83,842.34 in costs at Canterbury Crown Court on 15 March 2024.

HSE principal inspector Ross Carter said: “This tragic death could have been so easily avoided by implementing suitable site management to ensure that the scaffold was appropriately adapted by competent persons for the needs of the different sub-contractors.

“This case highlights that principal contractors should be aware that HSE will not hesitate to take appropriate enforcement action against those who fall below the required standards and do not plan, manage and monitor the construction phase effectively.”

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Are you concerned about your HR & Health & Safety within your business?

If you are concerned about your HR & Health & Safety within your business , give us a call / email now for a non-obligatory chat to see how we can help you with our H&S support company. Consensus HR | “Helping companies take the pain out of managing people whilst Preventing People Problems.” | Your Outsourced Human Resources & Employment Law Department – 0438 576750

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20 03 2024

UK falls down the rankings in Women in Work Index | Consensus HR | Herts, Beds

Matthew Chilcott Blog, Employment Law, General #bedfordshirebusinesses, #consensushr, #equality, #equalityact2010, #equalityanddiversity, #hertfordshirebusinesses, #outsourcedemploymentlaw, #outsourcedhumanresources, bedfordshire, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

The UK has slipped four places — from 13th to 17th, the largest annual fall in rankings experienced by any Organisation for Economic Co-operation and Development (OECD) country this year — in the annual Women in Work Index compiled by PricewaterhouseCoopers (PwC).

The Index, which assesses progress made towards achieving gender equality at work across 33 OECD countries, also finds that the UK’s gender pay gap has widened by 0.2%, making it higher than the OECD average and more than half of the other 32 countries assessed on the Index.

It can be found on the PwC website.

Luxembourg, Iceland and Slovenia are currently the best performing with Scotland being the UK’s top performing region, jumping from third place to first.

PwC UK Economist, Tara Shrestha Carney, said: “While a fall in rank is never good news, it’s important to note that the UK’s declining position on the Index is not necessarily because the UK is doing worse, but because other countries are doing things better and faster when it comes to achieving gender equality at work.”

Clearly, though, she went on, progress is too slow. Over the last decade, the UK has consistently lagged behind the OECD in this area and, at the current rate of progress, it will take nearly half a century to close the UK gender pay gap.

The report finds that, even after accounting for a range of pay-determining factors, the pay disparity between women and men in the UK still persists with women earning almost a tenth less than men on average.

This “gender pay penalty” worsens with age, with women between the ages of 46 and 65 experiencing more than twice the gender pay penalty than that of women between 16 and 30 years. Indeed, while a woman entering the workforce faces a pay penalty of around 5.2% on average, this widens to nearly 13% as her career unfolds.

The report highlights the “motherhood penalty”, with women taking on an unequal share of childcare responsibilities, as a key driver.

This is compounded by men often having more time available to perform so-called “greedy jobs”, which demand unpredictable and longer hours and tend to be more highly paid.

Our HR Comment: – UK falls down the rankings in Women in Work Index | Consensus HR | Herts, Beds

Matthew Chilcott, FCIPD, ACEL Owner of Consensus HR comments: “This article is very interesting in relation to our rating slipping four places to 17 and highlights the need for businesses to ensure that they are acting fully on their equality policy as well as working to best practice in all areas of HR such as Recruitment.

Here are a few of our previous blogs written on the subject which can be read by clicking on the heading:

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Are you concerned about Equality within your business?

If you are concerned about your business and its Equality Act and how you are currently ensuring that you are adhering to it with the team and business, give us a call / email now for a non-obligatory chat. Consensus HR | “Helping companies take the pain out of managing people whilst Preventing People Problems.” | Your Outsourced Human Resources & Employment Law Department – 0438 576750

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19 03 2024

Employers can share staff data in a mental health emergency | Consensus HR | Herts, Beds

Matthew Chilcott Blog, General, Health & Safety #bedfordshirebusinesses, #hertfordshirebusinesses, #ico, #Mental health, #outsourcedemploymentlaw, bedfordshire, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's

The Information Commissioner’s Office (ICO) has published guidance intended to give employers more certainty about sharing their workers’ personal details in the event of a mental health emergency.

The new guidance, which can be found on the ICO website, confirms that data protection law allows organisations to share personal information in an urgent or emergency situation, including to help them prevent loss of life or serious physical, emotional or mental harm.

It provides advice on when and how it is appropriate to share workers’ information when the employer believes that someone is at risk of causing serious harm to themselves, or others, because of their mental health.

ICO Head of Regulatory Strategy, Chris Hogan, said that the ICO wanted to reassure employers that, during a mental health emergency, they should share necessary and proportionate information without delay with relevant and appropriate emergency services or health professionals.

“It is a good idea to plan ahead,” he went on, “as this will help you to make well informed decisions if you need to. Our guidance will help you do that and includes useful case studies to illustrate how the law can work in practice.”

The new publication is part of a range of guidance produced by the ICO to help employers look after personal information in line with data protection law. Other documents can be found here.

Our HR Comments / Advice: Employers can share staff data in a mental health emergency | Consensus HR | Herts, Beds

Matthew Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: “The health and welfare of your team, is of the utmost importance and hence why at Consensus HR, we always go to the medical professionals. Whether this be an Occupational Health Assessment or writing to an employee’s doctor once General Data Protection Regulations (GDPR) consent has been received.

The importance of ensuring your business and team is following the GDPR is vital and this article from our Chartered Instituted of Personnel & Development and the Information Commissioners Office (ICO) clarifies when in certain circumstances such as mental health of a member of the team that you can access a worker’s personal details. This is applicable when the employer believes that someone is at risk of causing serious harm to themselves, or others, because of their mental health. The ICO provides some very useful information on the subject. Special care should be taken by employers, in such circumstances and when accessing the documents.”

Here are a few of our previous blogs written on the subject:

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Are you concerned about what to do when it comes to HR within your business?

If you are worried within your business that you would not know what to do in such circumstances and what is legal / best practice, give Consensus HR a call or email us and we will offer you a non-obligatory chat on the subject. Consensus HR – Your Outsourced HR & Employment Law Department – 01438 576750

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18 03 2024

Salary inflation at the slowest recorded rate in nearly three years | Consensus HR | Herts, Beds

Matthew Chilcott Blog, General, Performance Management, Recruitment, Training & Development #bedfordshirebusinesses, #hertfordshirebusinesses, #hrstrategy, #outsourcedemploymentlaw, #outsourcing, #salaryinflation, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Recruitment, Small Business, SME's, stevenage

While February 2024 saw further increases in rates of starting pay for both permanent and temporary workers, as employers reacted to competition for highly-skilled candidates, the rate of salary inflation was the slowest recorded since 2021.

This is one of the key findings in the latest Report on Jobs published by the Recruitment and Employment Confederation (REC) and KPMG.

Ongoing economic uncertainty and hesitancy to commit to new hires amid cost pressures led to a further marked fall in permanent placements, the report notes, while temp billings dropped at the steepest rate since mid-2020.

With uncertainty over the economic outlook leading employers to often delay or freeze hiring decisions, the number of people placed into permanent jobs across the UK continued to decline markedly midway through the first quarter (Q1) of 2024.

The availability of staff rose for the 12th straight month in February amid reports of redundancies and a slowdown in hiring activity.

REC Chief Executive, Neil Carberry, said: “The temporary labour market is the unsung hero of the economic uncertainty of recent years. It keeps the cogs of the economy turning amidst uncertainty and labour shortages — but it still needs nurturing. As we approach the General Election, businesses will be looking to politicians for commitment on this, and reforms of regulation that will support it from IR35, to regulating of the umbrella market and delivering flexibility to the Apprenticeship Levy.”

The retail and construction sectors led the downturn in demand for temporary workers. Of the 10 surveyed job categories, only blue-collar and engineering noted increases in demand for short-term staff during February.

HRInform

Our HR Comment / Advice:- Salary inflation at the slowest recorded rate in nearly three years | Consensus HR | Herts, Beds

Matthew Chilcott, FCIPD, ACEL, owner of Consensus HR comments: “These statistic from these reports demonstrate the current labour market and vas uncertainties of what to expect with the Election approaching and highlight why businesses need to ensure that their Recruitment Strategy is correct for their business. At Consensus HR, we understand that selecting the right candidates whilst attracting them to your business is never easy, whilst ensuring when you have successfully recruited that you retain them. This is why we always encourage our clients to look at the bigger picture and their companies HR Strategy in general for the success of the business and the member of the team. Getting your recruitment strategy right is the start but then ensuring that they remain motivated and an asset to the company is another chapter. Their Induction, development, performance reviews, Contracts of Employment, Employee Handbooks from day one of employment and the list goes on are all key parts of getting your HR strategy right and becoming an employer of choice. Believe me, this is not easy and maintaining it, is another challenge.

To view more about our range of HR & Employment Law Services

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Are you concerned about your companies HR Strategy?

If you wish to talk to us at Consensus HR about your current HR Strategy for your business and team and look at ways of getting the right candidates in the right places whilst ensuring your is a place where people like to come to work and the business succeeds, give us a call now. Consensus HR | Your Outsourced HR & Employment Law Department | “Helping companies take the pain out of managing people whilst Preventing People Problems” – 01438 576750

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13 03 2024

Workplace mental health service firm faces investigation | Consensus HR | Herts, Beds

Matthew Chilcott Absence Management, Blog, General, Health & Safety, Investigations #bedfordshirebusiness, #consensushr, #hertfordshirebusinesses, #Mental health, #outsourcedemploymentlaw, #welfare, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

Claims about one of the UK’s biggest providers of workplace mental health services are to be investigated by the British Association for Counselling and Psychotherapy (BACP), it has said. BBC Radio 4’s File on 4 programmes has heard allegations that calls from vulnerable people to Health Assured were not always handled properly. Health Assured refutes these allegations. Employee Assistance Programmes (EAPs) are intended to help employees deal with personal problems that might affect their wellbeing and performance at work. According to the UK Employee Assistance Programme Association, three-quarters of the UK working population (almost 25 million people) have access to an EAP through their employer. File on 4 has spoken to 15 current and former employees of Health Assured, an EAP that provides support to 13 million workers in the UK and Ireland, and whose clients include NHS trusts, universities, and police forces. Counsellors and team managers at Health Assured described low morale, high staff turnover, and a frequent struggle to keep up with demand.

BBC News

Our HR Comments / Advice – Workplace mental health service firm faces investigation | Consensus HR | Herts, Beds

Matthew Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: “When it comes to the welfare of your team, it is vital that you provide the best support available according to the situation. EAP’s – Employee Assistance Programs, are a great way to provide this service through an external provider, of which there are now many across the UK who provide this service as part of an insurance. At Consensus HR and part of our service, we will always go to the medical professionals for advice, if we have concerns about any members of our clients’ teams, if informed and will see the team members consent to write to their GP / Consultant for their advice on how we can support the team member. This can be a lengthy process and may also consider using our Occupational Health Providers to look at the best solutions in helping our team member and the business. Consensus HR also provides Mental Health development for managers and employees at our central office in Stevenage or at the clients offices together with a wide range of employee and management development workshops.

To view more about our range of HR & Employment Law Services

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Do you know how to correctly deal with managing your team when it comes to dealing with employee issues?

If you manage a team and are concerned for their welfare and would like to talk to us about the Policies, Procedures and development we can provide you, contact us now. Consensus HR | Your Outsourced Human Resources and Employment Law Department | “Helping companies take the pain our of managing people whilst Preventing People Problems – 01438 576750”.

Your Outsourced Human Resources (HR) Department.

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12 03 2024

Gormley v City of York Council – Unfair dismissal: Reasonable investigation | Consensus HR – Herts, Beds

Matthew Chilcott Blog, General #bedfordshirebusinesses, #consensushr, #hertfordshirebusinesses, #outsourcedemploymentlaw, #unfairdismissal, bedfordshire, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

Summary:

Investigations into alleged gross misconduct should be conducted reasonably. Reasonableness includes not accepting vague or generic allegations and questioning further to get the specifics of the situation.

Note for employers:

This case serves as a reminder for employers of the importance of a fair and thorough investigation prior to disciplinary. It is not enough simply to rely on vague evidence that lacks detail. Especially where gross misconduct is concerned, employers should investigate every angle of the case and only progress from the investigation when they have specifics as to what happened and in what context. Failing to do so, as in this case, can lead to an unreasonable decision and a loss at ET.

Law:

The law on unfair dismissal is found in section 98 Employment Rights Act 1996. Under this section, the dismissal must be for a fair reason (one of which is conduct). The dismissal must also be conducted in a reasonable manner, dependent on the size and resources of the organisation. Failure on either of those points could render the dismissal unfair.

British Home Stores Limited v Burchell [1978] set out a now well-known test to be applied when determining if the dismissal was conducted in a reasonable way. The test:

Did the respondent have a genuine belief in the misconduct of the claimant at the time of the dismissal?
Was that belief based upon reasonable grounds?
Did the dismissal follow a reasonable investigation and a reasonable procedure?

The “Burchell test” is used by ETs to come to a decision on what a hypothetical reasonable employer would conclude in the same circumstances, and therefore if the decision to dismiss was fair and reasonable under section 98 of the above act.

It is important to note however that the “Burchell test” does not impose on employers the need to conduct an investigation on a par with an investigation by the police, for example. In Ulsterbus Limited v Henderson [1989] the Northern Ireland Court of Appeal confirmed that it was not for the reasonable employer to carry out a quasi-judicial investigation into misconduct allegations, or confront and cross-examine witnesses, and that failure to do so does not always lead to an unreasonable outcome.

Employers should also consider any mitigating circumstances around the alleged misconduct. These circumstances can include the context in which the allegation happened, or the words that were said. They should also take into account the impact on the aggrieved party of the allegation, the accused employees disciplinary record and their length of service. These are relevant in determining whether the incident was an isolated event or part of a pattern of behaviour, amongst other things.

Facts:

The claimant was employed as a mental health practitioner by the respondent and was a long serving employee with a clean disciplinary record.

It was alleged by a junior colleague that the claimant had made sexual comments and “unwelcome innuendos” at work, and other comments that the colleague deemed to be “inappropriate behaviour in the workplace”. As a result, the claimant was suspended and subject to an investigation into their behaviour.

In the respondent’s report following its investigation, in which it was decided to progress to a formal disciplinary hearing, it was said that there was evidence that the claimant had engaged “in behaviour including unwanted innuendo and unwelcome jokes or comments that are sexist”.

A disciplinary hearing was held, the outcome of which was dismissal for gross misconduct. The dismissal letter said that the claimant had “engaged in behaviour including unwanted innuendo and unwelcome jokes or comments that are sexist” and noted that a colleague had described the claimant as a “misogynist”. The letter also concluded that “any reasonable person would realise” the practitioner’s behaviour was “likely to offend”.

The claimant brought claims of unfair dismissal and wrongful dismissal.

Employment Tribunal (ET):

Note that as an employment tribunal case, this is not binding authority. ET cases may be persuasive on other tribunal decisions, but unlike those courts higher in the system (EAT, CoA, Supreme Court), they do not have to be followed by other courts and therefore the outcome is only indicative of how a similar case might be treated.

The ET was critical of the respondent’s investigation, finding that the decision to dismiss on grounds of gross misconduct “was not formed on reasonable grounds after a reasonable investigation”. This was due to the respondent’s failure to ask follow-up questions. The allegations were, according to the ET, vague and “lacking specificity and largely generic” as to what innuendo, unwelcome jokes or comments had actually been made by the claimant and the circumstances in which they were made, and failing to address these in the investigation meant that it was inadequate and unreasonable and the Burchell test was not met.

Overall, the ET found that it was not reasonable to conclude that the claimant’s comments were sexual intimidation or bullying, as the evidence did not show that colleague felt vulnerable or was offended by what was said. As a result, the decision to dismiss lay outside the band of reasonable responses and the claim succeeded.

The claimant was awarded £60,700 in compensation.

Our HR Comment / Advice: Gormley v City of York Council – Unfair dismissal: Reasonable investigation | Consensus HR – Herts, Beds

Matthew Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: “This is an interesting case and the case law given and explains the utmost importance in ensuring an investigation is carried out correctly or could result in a £60,700 payment in compensation. It can be too easy within business to rush an investigation and especially when you are busy, but you must remember that being reasonable at all times whilst following the Acas Code of Practice are a necessity to ensure the right outcome as in this case, it was dismissal.”

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11 03 2024

Spring budget 2024: Chancellor encourages more people into work | Consensus HR – Herts, Beds

Matthew Chilcott Blog, General #bedfordshirebusiness, #bedfordshirebusinesses, #hertfordshirebusinesses, #outsourcedemploymentlaw, #outsourcedhumanresources, #springbudget, bedfordshire, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

A plan to make work pay, Chancellor Jeremy Hunt said as he recommended his latest Budget statement to the House of Commons. He announced very little that had not already been trailed in advance but provided more details of the measures that had been widely discussed in this week’s newspapers and news programmes.

Childcare

The chancellor announced a guarantee on the rates that will be paid to childcare providers to deliver the Government’s offer for children over nine months old for the next two years.

Energy

With the increase in energy prices caused by the conflict in Ukraine expected to last longer, as will therefore the sector’s windfall profits, the chancellor confirmed that he will extend the UK’s windfall tax on the profits of oil and gas companies for another year until March 2029.

Great British Nuclear will begin the next phase of the Small Modular Reactor selection process, Mr Hunt said, with companies now having until June to submit their initial tender responses.

Household Support Fund

Funding aimed at supporting vulnerable households with the costs of basic goods and heating their homes through the cost-of-living crisis, will be extended for a further six months.

Investment

The Government will create a British ISA in the form of an extra £5000 tax-free allowance for the public to invest exclusively in UK businesses with all the tax advantages of other ISAs. “This will be on top of the existing ISA allowances and ensure that British savers can benefit from the growth of the most promising UK businesses,” Mr Hunt explained.

He also plans to force local authorities and defined contribution (DC) pension funds to disclose how much they have invested in UK shares.

Levelling up

AstraZeneca will invest £650 million in the UK and Mr Hunt also announced an additional £650 million investment in the Cambridge Biomedical Campus and a new vaccine manufacturing hub in Liverpool.

Having already allocated £188 million for projects in Sheffield, Blackpool and Liverpool, the chancellor announced that £242 million would be allocated to Barking Riverside and Canary Wharf. This investment will, he said, see nearly 8000 houses being built and it will also transform Canary Wharf into a hub for life sciences companies.

Referring to a “Northeast trailblazer devolution deal”, Mr Hunt said this will provide a package of support for the region potentially worth over £100 million. The West Midlands Combined Authority will be awarded a further £15 million for cultural, heritage and investment projects.

NHS

Promising to double the amount the NHS is investing in IT and AI, the chancellor said there must be more digital input and less time-wasting forms. And, pointing out that police officers currently waste eight hours a week on unnecessary admin, he suggested that this approach could be mirrored in education, the police, courts, and local government with, e.g. more investment in non-court resolutions in the justice system.

The Government will, Mr Hunt said, fund in full the £3.4 billion cost of the NHS “productivity plan” he was introducing this week.

Tax

National Insurance (NI): Double taxation of work (through NI and income tax) is unfair, the chancellor argued. It should be simpler and fairer so, from April 2024, there will be another 2p cut in NI taking it down to 8% and that, Mr Hunt argued, should see total hours worked increase by the equivalent of around 200,000 full-time workers. It will, he said, be worth around £450 a year for someone on an average salary.

VAT:

Having been frozen for seven years, the threshold for VAT registration will go up from £85,000 to £90,000.

Vaping: A vaping tax will be introduced from October 2024, accompanied by an increased tobacco tax to maintain the disincentive to smoking. The freeze on alcohol duty will be extended to February 2025 to protect local pubs.

Child benefit: Turning to child benefit, the chancellor agreed that the current system, whereby it is withdrawn once a parent goes over £50,000, was unfair because it meant that a single parent earning £51,000 would lose the benefit while a couple both earning £49,000 would not. He plans to consult on moving to a household-based system in April 2026 but more immediately, from April 2024, will increase the lower limit to £60,000 and the top of the taper at which it is withdrawn will go up to £80,000.

Non-doms:

With regard to the much-discussed question of taxing non-doms, Mr Hunt confirmed that he was planning to abolish the current system while ensuring that the UK remained competitive in line with other major economies. From April next year, new arrivals in the UK will not be required to pay any tax on foreign income for four years but, if they still live in the UK after that point, they will pay the same tax as other UK residents.

Air transport: Air passenger duty will be increased but only for business travellers, not economy flights.

Holiday lets:

Tax breaks which make it more profitable for second homeowners to let out their properties to holiday makers rather than to long-term tenants to rent will be abolished as will stamp duty relief for people buying more than one dwelling.

Property:

The 28% rate of property capital gains tax will be cut to 24% with the chancellor arguing that the lower tax rate will result in more transactions, leading to more tax revenue.

Full expensing:

Referring back to his announcement last year of full expensing, which he described as a £10 billion tax cut for businesses, Mr Hunt announced his intention to publish draft legislation for full expensing to apply to leased assets.

Performing arts:

Tax reliefs for the performing arts introduced during the Covid-19 pandemic are to be made permanent.

Fuel duty:

Finally, he said that the 5p cut in fuel duty due to end this month will be extended for a further year, meaning that it will stay at 53p per litre.

The chancellor’s speech gives highlights of the Budget with full details available in the 98-page “Red Book” and associated documents which can all be found on the GOV.UK website.

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Our HR Comment: Spring budget 2024: Chancellor encourages more people into work | Consensus HR – Herts, Beds

Matthew Chilcott, FCIPD, ACEL, Comments: “Well, everyone will have their opinion on the recent Spring budget 2024 and how it affects you personally but from our point of view it is good to see the section in relation to childcare and the guarantee as this should hopefully help some parents back into work.”

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07 03 2024

Ayche v The Hop Box Ltd – Disability discrimination: Reasonable adjustment | Consensus HR – Herts, Beds

Matthew Chilcott Blog, General #bedfordshirebusiness, #consensus hr, #consensushr, #discrimination, #equalityact2010, #hertfordshirebusinesses, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, Small Business, SME, SME's, stevenage

Summary:

It is an employer’s duty to make a reasonable adjustment to alleviate a disadvantage placed on a disabled worker by a provision, criterion or practice because of their disability. An employer cannot rely on a worker’s own actions as sufficient to fulfil this duty.

Full details of the case can be found by Clicking Here

Note for employers

This case serves as a useful reminder that the obligation to make a reasonable adjustment is firmly on the employer, and it is not enough to simply rely on the employee to find an appropriate “workaround” to a PCP that puts them at a substantial disadvantage because of their disability.

In this case, had the respondent gone back to the claimant regarding the mask, and queried how the claimant was finding having to wear one, it would have become apparent that the mask was not being worn as intended and therefore a more suitable adjustment would have to have been found. By seemingly moving on from the matter without fully dealing with it, the respondent failed to discharge its duties under the EqA and must now wait to hear the outcome of this case, and if any compensation will be owed to the claimant.

LAW

Section 20(1), (2) and (3) of the Equality Act 2010 (EqA) puts employers under a duty to make reasonable adjustments where a provision, criterion or practice (PCP) of the employer’s puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled. The employer must take whatever reasonable steps are necessary to alleviate this disadvantage.

When considering a claim of failure to make reasonable adjustments, an employment tribunal has to first identify whether there is a PCP in place, and if it determines that there is, whether or not the employer put in place reasonable adjustments to ensure this did not substantially disadvantage a disabled worker where a non-disabled worker would not be.

FACTS

The claimant was engaged for two days of work as a server by the respondent. As the timing of the facts of this case fell in October 2020, when measures were still in place in the UK as a result of the Covid pandemic, the risk assessment for the event said that masks should be worn. This risk assessment, however, gave no consideration for those who were unable to wear a mask because of a disability.

The claimant initially did not wear a mask, due to suffering from asthma and the effects of a previous brain tumour. He was seen not wearing a mask by the respondent. The respondent suggested that the claimant swap with another worker who was preparing food, but this idea was dismissed as the claimant did not have sufficient knowledge to complete the preparations needed. Instead, the claimant put on the mask.

From the point of being asked to wear the mask, the claimant did so. However, when the respondent was not around, he wore the mask under his nose and would only put it on properly when someone in authority was nearby.

The claimant brought a claim of failure to make a reasonable adjustment to accommodate his disabilities.

EMPLOYMENT TRIBUNAL (ET)

The ET started by examining the facts of the case so as to identify if there was a PCP that put the claimant, because of his disability, at a disadvantage. It found that the requirement to wear a face mask when serving disadvantaged the claimant and that disadvantage was clearly attributable to his disability. A non-disabled person would not have an issue with wearing a mask in the same role.

The ET then had to consider if a reasonable adjustment was made to alleviate the disadvantage caused by the PCP. It held that the claimant’s decision to wear the mask but not to do so over his nose (except when he was concerned that persons of authority may be in the vicinity) alleviated the disadvantage caused to him entirely. The claimant’s complaint that he felt coerced by the respondent to wear a mask was rejected, on the basis that the claimant did not have to work the second day of the event but chose to.

In coming to the conclusion that the adjustment was reasonable, the ET noted that it is necessary to strike a balance between the reasonable needs of the disabled person for an adjustment on the one hand, and the reasonable needs of the employer on the other. In striking this balance, it had to consider if the steps to alleviate the disadvantage would be effective, the cost to the employer of them and the extent of the disruption that would be caused to the employer’s business in making the adjustment.

It was accepted by the ET that the claimant was exempt from wearing a mask, however it stated that “…[this] does not give him an untrammelled right to work at an event such as the Peddler Market without a face covering as the reasonable needs of the employer have to be taken into account”. Before it, the respondent had given what the ET felt to be “compelling evidence” that it was difficult enough to get the general public to wear a face covering, and that would only get worse if the claimant were to be permitted to not wear one whilst working in a public area, and that these difficulties could result in the respondent losing its licence to operate events.

Ultimately, the ET concluded that the respondent had made a reasonable adjustment for the claimant by permitting him to wear the covering below his nose other than when he saw a person in authority.

The claimant appealed against this on the basis that as the respondent was unaware of this adjustment, it did not meet its duty to make a reasonable adjustment.

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EMPLOYMENT APPEAL TRIBUNAL (EAT)

In reviewing the case, the EAT determined that the ET had misunderstood the facts, and this led to it finding as it did. It is apparent from the judgment that the ET had concluded that the respondent was aware of the claimant’s self-imposed reasonable adjustment of only wearing the mask properly when the respondent or its representatives were around, when in fact both parties to this case agreed that the respondent did not have this knowledge.

The EAT held that the result of this fundamental misunderstanding was that the ET had not properly considered the true facts in the case. Therefore, it held that it should be remitted to the same ET to re-determine the reasonable adjustments claim, and whether or not a reasonable adjustment had been applied to alleviate the impact of the PCP.

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06 03 2024

Poor mental health keeping more young people out of work | Consensus HR – Herts, Beds

Matthew Chilcott Blog, General #bedfordshirebusiness, #hertfordshirebusinesses, #Mental health, #outsourcedhumanresources, bedfordshire, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

A third (34%) of young people aged 18–24 have reported symptoms that indicate they were experiencing a common mental health disorder such as depression, anxiety or bipolar disorder — a big increase since 2000 when just 24% reported these problems.

This is one of the key findings of a report by an independent think tank, the Resolution Foundation, which shows that young people now have the poorest mental health of any age group and that this can lead to them being in lower-paid jobs or unemployed.

We’ve Only Just Begun: Action to Improve Young People’s Mental Health, Education and Employment is the culmination of a three-year research programme exploring the relationship between the mental health and work outcomes of young people, funded by the Health Foundation.

“Over that time,” the Foundation states, “we have examined issues such as how mental health and insecure work collide; why low hours are so prevalent for young workers today; and the intersection between young people’s mental health, employment and geography.”

The report highlights that young people with mental health problems are more likely to be out of work than their healthy peers.

Between 2018 and 2022, 21% of 18–24-year-olds with mental health problems were workless, compared to 13% of those without mental health problems.

The study also found that young women fare worse, and are one-and-a-half times more likely to experience poor mental health as young men (41% compared with 26%).

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Our HR Comments / Advice – Poor mental health keeping more young people out of work | Consensus HR – Herts, Beds

Matthew Chilcott, FCIPD, ACEL, Owner of Consensus HR comments:“ This is an extremely concerning article from our Chartered Institute and demonstrates how mental health is playing a big part in todays society and the workplace.

Supporting mental health in the workplace can be challenging and the issues around it are complex. Therefore, it is important that employers are aware of their legal obligations and the issues that arise. Three key issues are involved:

Health and safety
Disability discrimination
Personal injury claims

Employers can manage mental health issues via two key approaches: having policies and procedure in place to deal with mental health issues and supporting employees via training (for managers especially), return to work interviews and on-going support in the workplace and during periods of absence.

“Professional advice can ensure that policies support both the organisations and its people,” says Matthew from Consensus HR. “With growing awareness and openness about mental health issues, this step is increasingly important.” To read a previous blog we wrote on this subject, Click Here.

Other blogs we have written on the subject are:

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