Employment Law

Welcome to the preview of our August 2018 HR Newsletter from Consensus HR.  This month we cover:

• The need for more Employment Law judges due to increase in ET cases. 
• Sainsbury employee dismissed for using Facebook
• How a Bangor pregnant woman got a payout of £25,000,
• Working time.  Should you be paid if working at night but can sleep?
• Uppdate on the Self Employed scenario with the latest involving Deliveroo.

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The Equality Act 2010 protects disabled employees from discrimination in the workplace. The duty to make reasonable adjustments is the most common form of protection and, where that duty arises, an employer must effectively treat the disabled employee more favourably than others in an attempt to reduce or remove the disadvantage faced.

A difficulty for employers is that it is not always apparent when someone has a disability – or a disability arising from a condition – as these can be ‘hidden’ or ‘invisible’, such as some cancers, autism, epilepsy, multiple sclerosis and mental health conditions. However, once the employer knows, or ought reasonably to know that an individual is disabled and, crucially, is likely to be placed at a substantial disadvantage as a result of that disability, the duty is engaged.

Matthew Pinto-Chilcott of Consensus HR comments “One of the many questions we get asked is in relation to an employer believing that an employee may have a disability but the employee has made the decision not to inform their employer because they are afraid there maybe repercussions. They wish to know what action should they take and when the duty by the employer is engaged?

At Consensus HR we always advise our clients to not make assumptions when an employee fails to achieve something and to build a trusting relationship where any development needs can be discussed freely and any mitigating circumstances involved identified and the appropriate action taken.”

Some further information can be found in our previous blogs:

• VICTORY FOR ENGINEER ‘DISMISSED WHILE HE WAS DEPRESSED’

• BLOG 1 – DISABILITY DISCRIMINATION: REASONABLE ADJUSTMENTS

• BLOG 2 – DISABILITY DISCRIMINATION: POLICY VS. PRACTICE

A very informative article written by Sam Murray-Hinde of Howard Kennedy in People Management discusses the main points further and the action employers should take.

Employers are prohibited from asking applicants questions about their health, other than for prescribed reasons. Reasonable adjustments need only be considered where a disabled candidate requests them, or the employer becomes aware of a substantial disadvantage due to disability. Even where voluntary disclosure of a disability is made, employers should be careful as to what further questions are asked.

Before employment starts, other forms of reasonable adjustments should be considered apart from the physical. Other adjustments may include allowing more time for tests or, for example, allowing an applicant to answer a multiple-choice test in an alternative format, such as by providing short written answers. Only after a job offer is made can an employer ask what reasonable adjustments may be needed to allow the candidate to do the job, to include completing any induction period and training and development.

After employment begins, employers may have formal or informal policies, rules, practices, or even one-off decisions that apply to all employees, but that place disabled employees at a substantial disadvantage by comparison. However, caution should be exercised when considering modifying internal procedures for disabled employees, as a reasonable adjustment as this will set a precedent.

For example, it is not always the case that an employer needs to ignore disability-related absences and treat a disabled employee more favourably. Some attendance procedures will trigger disciplinary action after a specified number of absences within a rolling period, and while a disabled employee may be placed at a substantial disadvantage as a result, due to the likelihood of being absent more often than a non-disabled employee, consideration should first be given to whether the employer can objectively justify the procedure.

For example, where it can be evidenced that the business is severely affected by absence (where punctuality is paramount to service delivery), the employer may be able to show that the procedure is a proportionate means of achieving a legitimate aim.

A lot of disability-related absences may be avoided or better accommodated by taking steps at the outset to identify and implement reasonable adjustments. For periods of long-term disability-related absence, before considering dismissal an employer needs to go further than it would with a non-disabled employee and consider adjustments to the role or, as a last resort, suitable alternative employment with or without a competitive interview.

Rather than focusing too heavily on whether or not the definition of disability is met and whether additional legal obligations are engaged, the focus should be on the needs of the individual. Ultimately, this will benefit the business in terms of productivity. Where a substantial disadvantage is identified, a proper assessment should be conducted in consultation with the employee to identify any adjustments that could be made to reduce or remove that disadvantage. For the most part, adjustments involve little cost and are therefore likely to be considered reasonable.

Our current blog discusses updates in Employment Law:

New employment tribunal awards announced

The Government has revealed the new maximum employment tribunal awards to take effect from 6 April 2018, and the Supreme Court hears Pimlico Plumbers’ latest appeal in its long-running employment status case.

The Supreme Court heard Pimlico Plumber’s latest appeal to the finding that one of its plumbers was a worker, and not self-employed as he had been held out to be. Charlie Mullins, owner of Pimlico Plumbers, has called for ‘clarity’ from the Supreme Court. One of our previous blogs discusses the difference and can be found by clicking here.

Unfair dismissal compensation to increase

The Government has confirmed that the maximum compensation award in unfair dismissal claims will increase to £83,682 (or a year’s pay, whichever is lower) from 6 April 2018.

Matthew from Consensus HR comments “Companies should always ensure that they follow the correct procedures when dealing with employee issues in their business such as using the Acas Code of Practice and any action taken is ‘reasonable’ & ‘fair’. This should be in a businesses Contract of Employment or Company Handbook and be part of a companies everyday culture & management style.”

Employers “decades behind” law on pregnancy in the workplace

A third of employers believe it is acceptable to ask a female interviewee in a job interview about her plans for having a family, research from the Equality and Human Rights Commission (EHRC) has found. EHRC’s new campaign, “Working Forward”, aims to educate employers on basic discrimination laws in order to combat what CEO Rebecca Hilsenrath called “depressing” findings.

Matthew from Consensus HR comments “We find it extremely hard to believe that employers still believe it is ok to ask such discriminatory questions when interviewing but when talking to SME’s with a very small workforce understand the issues that can occur should an employee be absent from work for a long period. This is why we work with our clients to ensure that the correct measures are taken to ensure minimum impact to the business such as recruiting a fixed term member or developing a member(s) of the team to cover the duties whilst the employee is absent. A member of a well formed team getting pregnant should be celebrated and managed accordingly when they are informed of a pregnancy.”

Case law

On referral from the Belgian courts, the European Court of Justice has found that time spent by a worker on-call at home was to be regarded as working time for the purpose of the Working Time Directive. The key element was the restriction placed on the worker by the employer and not his location.

Matthew from Consensus HR comments “This is an area we have had to deal with quite a lot lately with employers not realising when somebody should be getting paid if they are on call or a mobile worker following recent cases. The Working Time Directive covers many areas and this is just one of them with hours worked another.”

Claims up 66 per cent in first quarter after Employment Tribunal (ET) fee abolition in July 2017.

Back in July 2017 we wrote about the fact that Employment Tribunal (ET) fees were to be scrapped after being introduced in 2013 and being found as unlawful and the situation of refunds of fees paid was a huge topic of conversation.

Well its no surprise that in the first quarter (3 months since fees were abolished), statistics on Employment Tribunals in England & Wales have shown that claims are up by 66% but why?

Matthew from Consensus HR comments “These figures demonstrate that many people were put off placing a claim when fees were introduced but now that they have been scrapped feel they can get justice for any employment issues that have not been dealt with correctly. Businesses should never make the assumption that through poor management an employee will not go to an ET and should ensure they promote good management through their companies policies & procedures. Employers should be proactive and manage their team sufficiently to create a productive working team / environment and a successful business. We have recently dealt with many cases from unfair dismissal to unauthorised deduction of wages with Acas initially to seek a suitable solution and avoid an ET for issues that employers through adequate management / time could have been avoided. Businesses need to ensure that they are covered adequately and seek the appropriate advice”

The figures show that whereas the number of single claims – for individual grievances such as unfair or wrongful dismissal – jumped 64 per cent in the first quarter, multiple tribunal claims fell 15 per cent, with the number of overturned cases increasing by 42 per cent.

Emily Burt of People Management – 14^th December 2017 discusses further.

With the date rapidly approaching, we thought it best to write a more detailed General Data Protection Regulations (GDPR) blog so that everybody is ready for its arrival on the 25^th May 2018 and companies have had the opportunity to properly prepare.

This blog details the 12 steps companies should take now and has been written using the information provided by the Information Commissioners Office.

Matthew from Consensus HR comments “Businesses need to ensure that they are fully prepared for this new piece of legislation as in the past penalties were very rarely enforced but this is about to change from May 2018 with high penalties.”

Increased penalties under the GDPR

When the EU General Data Protection Regulation (GDPR) is enforced from 25 May 2018, breached organisations will find the fines they face increasing dramatically.

From a theoretical maximum of £500,000 that the ICO could levy (in practice, the ICO has never issued a penalty higher than £400,000), penalties will reach an upper limit of €20 million or 4% or annual global turnover – whichever is higher.

For many businesses, the threat of insolvency or even closure as a result of GDPR penalties will soon be very real.

Five months is not long to bring an organisation – especially a larger one – to a state of compliance with the new law, which is why it’s essential to prepare now.

12 steps to take now

1. Awareness
2. Information
3. Communicating
4. Individuals rights
5. Subject access requests
6. Lawful basis for processing personal data
7. Consent
8. Children
9. Data breaches
10. Data Protection by Design and Data Protection Impact Assessments
11. Data Protection Officers
12. International

Click here to read an overview of the 12 steps

Our previous blog gives more details – The Arrival of the new General Data Protection Regulations (GDPR)