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Keeping up with the latest Employment Law – September 2021

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This Employment Law Newsletter covers:

  • Social Media

  • No Jab, No Job

  • Discrimination and Hypersensitivity

  • UK Right to Work

  • Hybrid Working

Employment Law

1. Social Media

Can your social media posts get you into trouble at work? You may have heard that England lost the 2020 Euro final 3-2 on penalties. Heart breaking – but then the racist tweets began. Arrests have followed and a high-profile estate agents suspended an alleged racist tweeter.

  • Does your organisation have a social media policy?
  • Doubling down on privacy settings isn’t always the solution – screenshots can easily be taken and shared
  • Workers should check their posts for discriminatory remarks and harassment

If a worker claims unfair dismissal, the Employment Tribunal must consider three aspects of the employer’s conduct as set out in the test in British Home Stores -v- Burchell

  1. Did the employer carry out an investigation into the matter reasonable in the circumstances of the case?
  2. Did the employer genuinely believe the employee was guilty of the misconduct complained of?
  3. Did the employer have reasonable grounds for that belief?

If the answer to each of these questions is “yes”, the Tribunal must apply the band of reasonable responses test. Did the employer act within the range of reasonable responses open to a reasonable employer?

In Game Retail Ltd v Laws the Employment Appeal Tribunal held that, “Generally speaking, workers have the right to express themselves providing it does not infringe on their employment and/or is outside the work context. That said, we recognise that those questions might themselves depend on the particular employment or work in question.”

In the case of Plant v AP1, a disgruntled worker posted, “PMSL [pissing myself laughing] bloody place I need to hurry up and sue them PMSL”. The worker’s dismissal was found to be fair as the post was in contravention of the employer’s social media policy. This set out the damage that could be caused to the company’s reputation. It reminded workers conversations between friends on Facebook were not private. It concluded that any breach would be taken seriously and might lead to disciplinary action, and serious breaches would be considered as gross misconduct and subject to summary dismissal.

In Austin v A1 the worker – a paint sprayer – had an argument with the MD. The worker shared his feelings on social media. “I don’t think I’m a bad person but I don’t think I have ever felt so low in my life after my boss’s comments today.” The Employment Tribunal held that the claimant had simply expressed his personal opinion. He succeeded in his claim and was awarded a basic award of £3600 and compensatory award of £24,960. 

2. No Jab No Job

Rumour and speculation abound about the role of vaccines in the workplace. Is the Government encouraging employers to crack down on the unvaccinated? Are vegans going to refuse to be vaccinated?

Government ministers recently seemed to encourage employers to set rules that workers be vaccinated. This came up because Google and Facebook in the US have ruled that workers can only access premises if vaccinated.

But there’s no legislation to back up these suggestions. If employers do insist on vaccination, workers may well claim unfair dismissal and evidence of ministers’ comments won’t help the employer.

Employment Law

Would a worker succeed in a claim? It depends on the risk involved in the work setting but employers run the risk of being discriminatory. Workers may claim they’ve avoided vaccination because of belief, religion or disability.

Rather than risk breaking trust with workers another approach is suggested: perhaps workers are vaccine hesitant and need information? Workers want their workplaces to be safe too and are keen for workplace testing and adequate pay for self-isolating.

Could vegans claim a protected belief namely ethical veganism to avoid vaccination (all vaccines are tested on animals)? The Vegan Society encourages everyone to be vaccinated.

Legislation comes into effect on 1 November that workers in care homes must be vaccinated. The only exemption is on the grounds of health reasons. Religious or philosophical belief are not covered.

Employment Law

3. Discrimination & "Hypersensitivity"

To what extent do workers have to put up with “blunt” comments and “direct” management styles?

In-house counsel, Miss Sithirapathy, claimed she’d been discriminated against by her employer PSI CRO UK Ltd. PSI is based in the UK and Switzerland and provides services to customers involved in clinical trials.

Miss Sithirapathy was employed in London. A Swiss manager, Mr Schmidt, proposed a transfer to the Swiss office. When Miss Sithirapathy queried the salary he said she couldn’t be paid more because of her age. She responded she couldn’t take up the offer anyway –

for personal reasons – and he countered she wasn’t married and didn’t have children. Mr Schmidt went on to relate an anecdote about the tolerance extended to lesbians who worked in the Swiss office.

The following year she sought promotion to senior legal counsel but was told her appraisal, although satisfactory, indicated she wasn’t ready to be promoted: she was still at the beginning of her professional career.

Miss Sithirapathy was informed of a non-legal vacancy in Switzerland. She exchanged emails with Mr Schmidt, said she was keen and resigned from the London branch. She took up a position within Finance and Administration in Switzerland but lost her job after a month in a reorganisation. Subsequently she claimed that during her short time at the Swiss office she’d been sexually harassed. Mr Schmidt was to drive her to an appointment and she found herself outside a lift and about to get into it with him and didn’t immediately understand the necessity. She hesitated and Schmidt said, “What’s wrong? Are you scared?”

Miss Sithirapathy claimed:

  • direct discrimination because of sex and/or age
  • sexual harassment
  • harassment related to age and/or sexual orientation
  • victimisation

The Employment Tribunal accepted that in Switzerland there’s generally a link between age and salary. Also that Mr Schmidt had personal information about Miss Sithirapathy because it was relevant to relocation costs. He said he’d have made the same comments to a male employee and had mentioned the lesbian anecdote to explain that sexuality or other personal circumstances of employees are not an issue for the company. The Tribunal said Mr Schmidt’s comments were “bluntly put”. Mr Schmidt said of his comments by the lift that he was referring to his driving.

The Tribunal held that Mr Schmidt’s comments were unfortunate and awkward. “However we bear in mind the importance of not encouraging a culture of hypersensitivity or of imposing legal liability to every unfortunate phrase”.

As for her claim of age discrimination, the Tribunal held she was two and a half years into her first legal counsel role and still at an early stage of her career. Her appraisal demonstrated she wasn’t ready for a senior legal counsel role. “The same comments would have been made to someone who was at the same career stage as the claimant, whatever their age. Using the words ‘still young’ in this context was another way of saying the claimant was at the beginning of her professional career and was not a detriment to the claimant.”

Mr Schmidt’s comment, “What’s wrong? Are you scared?” was not conduct of a sexual nature. It was “an awkward remark intended as a joke … Although the claimant felt uncomfortable and intimidated, this comment did not, objectively, have the effect of violating her dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her.”

The Tribunal concluded that the two managers concerned “both have quite direct management styles. Mr Schmidt in particular spoke very bluntly to the claimant … However we have concluded that they did not cross the line such as to amount to unlawful harassment”

4. UK Right to Work

Employers have the duty to check the immigration and right to work status of all workers before employment or face fines of up to £20,000 and potential criminal liability for directors. But the guidance on checking right to work, the pandemic and the settled status scheme have made everything complicated. Employers have to get to grips with reams of guidance depending on the date of employment and the status of the employee.

If workers are EU citizens they have the right to work if they have either settled status, pre settled status or a work permit. But there are 400,000 outstanding settled status applications and possibly hundreds of thousands of EU citizens working in this country who are unaware they should have applied for settled status. The Home Office granted a concession of 28 days from 30 June 2021 but there may well still be hundreds of thousands who do not have status.

Training and Development

If a settled status application is pending, workers may be able to rely on section 3c leave, although this is by no means clear. This prevents applicants from being regarded as overstayers whilst they await their decision. The uncertainly surrounding this area may lead to a raft of unfair dismissal claims.

At the moment employers can check workers’ right to work status virtually; eg through online meetings. These arrangements were due to end on 31 August 2021 but have now been extended to 5th April 2022. But working at home is now embedded and commentators wonder whether this virtual scheme should be made permanent.

There is also of course the points system. If employers do not follow this system correctly, here too they risk claims.

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5. Hybrid Working

Many workers have come to value the option of working at home for part of the week. They find they’re more productive and the routine fits well around their lives.

ACAS has issued guidance on hybrid working. Employers opting for hybrid working will need to change contracts of employment with workers’ agreement. Hence it’s advisable to consult – in some circumstances it’s the law to consult with the workforce. Consultation improves relations, builds trust and irons out problems in advance.

When creating a hybrid working policy it’s important to consider:

  • Which roles are appropriate
  • Maximum number of days
  • A non-discriminatory procedure for requesting hybrid employment
  • Equipment to be provided and its insurance
  • Risk assessments
  • Keeping home workers in the loop by means of online meetings
  • Equal opportunities for promotion, training etc

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EMPLOYMENT LAW NEWSLETTER MAY 2021

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We are proud to be Trustees of Home-Start & recent winners of SME News – 2021 UK Enterprise Awards – Best SME – Focused HR Consultancy 2021 – Home Counties.

Enjoy our latest Newsletter

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This newsletter covers:

  1. Working from Home

  2. Fire and Rehire

  3. Gig Economy

  4. Sleep ins

  5. Line of Duty?

1.Working from Home

The popularity of remote working is on the rise but there are pitfalls for both employer and worker.

The Office for National Statistics in its report Homeworking hours, rewards and opportunities in the UK: 2011 to 2020 found that 35.9 percent of the UK workforce worked some of their time at home in 2020, an increase of 9.4 percent over the previous year. But this was not spread evenly over the country or the economy. For example, those who worked at home earned about 20 percent more than those who didn’t, and there was more homeworking in the South East than in the North East of England. IT, professional, scientific and technical, and financial services roles were top for homeworking. Unsurprisingly it was least seen in accommodation and food services.

What are the pros and cons of home working? The upside is that work-life balance is improved, and domestic and childcare roles particularly those of women make it a good fit. It saves journeys which is important for the environment, and, the ONS found, leads to less sick leave.

But homeworkers work longer hours – often in the evening – and are less likely to receive a bonus or to be promoted. They also find it harder to log off.

But homeworking is definitely here to stay. A recent study by Microsoft The Next Great Disruption Is Hybrid Work – Are We Ready? suggests that flexible remote working will continue but that employers need to make adjustments.

  • 70 percent of workers want flexible remote work options to continue, but at the same time over 65 percent crave more in-person time with their teams
  • Business leaders have done better in the last year than workers further down the organisation, many of whom report they’ve been struggling. This is particularly true of those aged between 18 and 25
  • Workforce productivity is high, but so is exhaustion. Many workers report they feel overworked. The “barrage of communications” – online meetings and calls – doesn’t help
  • It’s harder to collaborate outside the daily network, which means groupthink can set in which hinders innovation
  • But seeing co-workers’ homes, children and pets at online meetings has humanised the workplace and forged stronger connections.

Employers may need to rethink working arrangements to provide flexibility and support for workers.

The Right to Disconnect

Recent polling by Prospect, the union for professionals, has found that two thirds of workers want the right to disconnect. The union proposes this right be enshrined in law. A new Employment Bill has been promised since the Queen’s Speech in December 2019 but has been delayed by the pandemic. This could oblige employers to negotiate boundaries with workers – when are they available to be contacted and when are they not.

In Ireland all workers have the right to disconnect from work and to have a better work-life balance. The Department for Business, Energy and Industrial Strategy says the new Employment Bill will include measures to help people balance work with their personal lives. But there’s nothing stopping employers taking action in advance of any legislation.

2.Fire and Rehire

The furlough scheme ends in September and many employers will be planning how to keep their businesses profitable. Workers fear they will lose their jobs, and women are likely to feature disproportionately in the redundancy statistics.

And there’s also the phenomenon of “fire and rehire”. Also called “dismissal and re-engagement”, the motivation is to fire workers and rehire them on terms more favourable to the employer. This isn’t unlawful but employers may find workers lodging claims in the employment tribunal.

According to a recent Trades Union Congress report, since March 2020 nearly one in ten workers have been told to reapply for their jobs on worse terms and conditions or to face the sack. BME and young workers have principally been targeted, and Parliament’s Transport Committee has criticised British Airways’ fire and rehire tactics. The Unite union has dubbed the practice “bullying” and has launched a national campaign to outlaw it. Fire and rehire is already banned in Ireland and Spain.

 

Meanwhile ACAS has issued guidance on its site, Changing an employment contract – When changes are not agreed. Employers should consider whether the changes are really necessary and if they are:

  • Try hard over an extended period of time to reach an agreement with their worker
  • Consider the damage to workplace morale, and the risk of legal proceedings
  • Follow fair dismissal procedures including the right of appeal, and give the lawful amount of notice

  1. Gig Economy

Holiday pay and national minimum wage – isn’t everyone entitled? Yes, if they’re employed or classed as a worker. But an underclass of so called “self-employed” has grown up thanks to big firms operating in the gig economy. Research suggests almost half a million workers are wrongly categorised as self-employed.

A group of Addison Lee drivers claim they aren’t self-employed but are workers. In 2017 they succeeded in the Employment Tribunal. In 2018 the Employment Appeal Tribunal upheld the decision on the ground that if the drivers didn’t accept work they had to explain why and could be penalised. The case recently concluded with an unsuccessful appeal by Addison Lee to the Supreme Court. The drivers are workers and are entitled to the national minimum wage from time they log on, and Addison Lee will have to pay an average of £10,000 to thousands of workers. Lawyers said this represented “another blow to big firms operating in the gig economy”.

Another success for workers in the gig economy was recorded for Uber drivers. The Supreme Court recently held they were workers rather than self-employed, and are entitled to the national minimum wage – including backpay of the minimum wage – from the moment they turn on their app. And they will of course be entitled to paid holidays.

Help for gig workers is on the horizon. The long-awaited Employment Bill will protect gig workers with a right to request guaranteed working hours. But commentators criticise this as not being the same as guaranteed working hours.

  1. Line of Duty?

“When did we stop caring about honesty and integrity” asked Superintendent Hastings in BBC’s popular drama, Line of Duty.

A recent case, Chief Constable of Avon & Somerset Constabulary v Eckland has highlighted that organised criminal gangs, corrupt police officers and missing evidence aren’t just the stuff of drama.

Detective Sergeant Nicholas Eckland joined the police in 1998. In 2018 whilst investigating organised crime networks he gave evidence at Bristol Crown Court as Senior Investigating Officer. His evidence concerned the death in prison of a defendant in a drug conspiracy, Mr W. DS Eckland said he’d identified the deceased, but this wasn’t accurate as he hadn’t visited the mortuary.

The Chief Constable appointed a panel to carry out a detailed investigation. DS Eckland said he’d feared for his life, blaming death threats and the existence of a corrupt colleague. He claimed this could be backed up by his notebooks but these went missing during the investigation. The panel held that DS Eckland’s inaccurate evidence to the Crown Court amounted to Discreditable Conduct “in that such conduct has a tendency to undermine public confidence in the integrity of evidence given by police officers in legal proceedings”.

He was dismissed for gross misconduct and brought a claim for disability discrimination against the Chief Constable claiming he was disabled by “depression and episodic paroxysmal anxiety”. A preliminary issue was recently decided. The Court held that the Chief Constable could be held liable for any discrimination committed by the panel that investigated Eckland.

line of duty
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Contact us for free advice on the issues raised in this Newsletter. In this thirty-minute session we will review your situation and how you can achieve your objectives.

The topics covered in this Newsletter are complex and are provided for general guidance only. Therefore, if any of the circumstances mentioned in this Newsletter have application to you, seek expert legal advice.

4.Sleep ins

Another couple of long running cases have recently been decided, Mencap v Tomlinson-Blake and Shannon v Rampersad. Both concern the pay of workers in a caring role when they are asleep but available to give care.

Ms Tomlinson-Blake was employed by Mencap. She was occasionally required to sleep-in at a home for vulnerable adults in case her assistance was required during the night. She claimed payment for her sleep-in shifts, not just when she was working but when she was asleep. Mr Shannon lived on the top floor of a care home. He agreed to always be home between 10pm and 7am in case the night staff required assistance. He received a small payment and paid neither rent nor services for the flat. He too claimed payment for the entirety of his sleep-ins.

In 2109 the Employment Appeal Tribunal upheld Ms Tomlinson-Blake’s claim to be paid when she was asleep but denied Mr Shannon’s claim. As a result, there were fears the sector would face claims for back pay of national minimum wage of £400m.

Mencap appealed as did Mr Shannon. The appeals were heard together. The Court held that although Ms Tomlinson-Blake and Mr Shannon were “available” for work when sleeping, they were not “working”. Unison sought leave to appeal.

Ms Tomlinson-Blake and Mr Shannon’s claims failed at the final hurdle of the Supreme Court. The Court distinguished between “actual work” and “availability for work” and held that the national minimum wage is only payable when the worker is awake and dealing with care needs.

Mencap states it only fought these cases because of the historical burden of underpaid national minimum wage and the devastating effect this would have on the sector and society at large. The charity pays its workers for sleep ins.

Mencap and Unison, although on opposing sides in the litigation, have written jointly to the Prime Minster calling for immediate reform of minimum wage laws affecting thousands of care workers. They said they are “united in the same vision” of a “properly funded care sector” and that “paying staff decent wages is a major part of this”. The Supreme Court’s finding is a “huge blow” to care workers and is likely to mean they will earn less.

Covid

50 of UK Top Firms, not returning to the workplace

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returning to the workplace

The BBC announced yesterday (6th May 2021) some research it had undertaken in relation to businesses and their employees returning to the workplace after Covid-19 restrictions are changed to allow this.

We wrote a blog on the 30th April titled ‘Moving to a Hybrid Organisation’ but what does the BBC report now show?

  • 50 of UK’s biggest firms asked
  • 43 of the firms said they would embrace a mix of home and office working, with staff encouraged to work from home two to three days a week.
  • with people working from home it is anticipated that 40% less space will be needed if employees work from home for a certain amount of days per week.
  • Danny Harmer, chief people officer at insurance giant Aviva – which has 16,000 UK workers – said 95% of its workers said they would like to be able to spend some of their time working flexibly and remotely in different locations.
  • Recruitment firm Adecco, which has 34,000 UK workers, said about four-fifths of its staff now work remotely.
  • The firms contacted by the BBC covered 1.1 million workers in the UK.

What does this mean to your business?   

Has your team been working the majority of the time from home during the Pandmic? 

  • How are you going to make the changes, if any? 
  • How will you consult with the team? 
  • What changes will you have to make to their Contracts & Terms & Conditions? 
  • Do you need to make any changes?

These are just a few of the questions we are now starting to get asked by our clients prior to the end of Furlough and the end of September.  Is your business ready to deal with the major changes to work?

For an informal no-obligation chat, contact us today.

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INTEGRITY | SERVICE | ADVENTURE | TEAM | SUPPORTIVE | OPEN & TRANSPARENT

returning to the workplace

We are a personal, unique HR & Employment Law service, helping employers who cannot support their own in-house Human Resources department. 

Our monthly packages are designed to be affordable and scales with your business as you grow.

We hold the highest Employment Law qualifications (Level 7) with our Chartered Institute and all our advice is fully professionally liability insured and accredited by the CIPD and other leading professional bodies, including the Solicitors Regulation Authority and Bar Standards Board.

We have a range of experiences within all UK business sectors both front & back of house from fast footfall, high turnover retail, hotels & catering and pharmaceuticals to Post Production & Advertising.

We are based in Stevenage, Hertfordshire and cover surrounding areas including Bedfordshire & Cambridgeshire. Get in touch today to see how Consensus HR can help.

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‘Sleep-in shift’ Care worker’s lose court challenge

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Working Time Directive

A recent Supreme Court case involving ‘Sleep-in shift’ Care worker’s brought by Clare Tomlinson-Blake against the learning disability charity, Mencap has ruled that Care workers across the UK who have to sleep at their workplace in case they are needed are not entitled to the minimum wage for their whole shift, the Supreme Court has ruled.   If won, it could have resulted in an estimated £400m bill for backpay,

This is following two cases which commenced in 2017 & which were both appealed and subsequently as a the last available option taken to the Supreme Court, where Lady Arden said that “sleep-in workers… are not doing time work for the purposes of the national minimum wage if they are not awake”.

A report By Alison Holt Social Affairs Correspondent, BBC News on the 19th March 2021 discusses further  & can be found by clicking here.

Employers need to ensure that they follow the Working Time Directive 1998 (WTCD) – Directive 2003/88/EC to ensure legal compliance when dealing with employee hours & days of work.

A range of blogs we have written on the WTD over the years can be found on our website by using the search option (magnifying glass, top right corner) or clicking here.

We are a personal, unique HR & Employment Law service, helping employers who cannot support their own in-house Human Resources department. 

Our monthly packages are designed to be affordable and scales with your business as you grow.

We hold the highest Employment Law qualifications (Level 7) with our Chartered Institute and all our advice is fully professionally liability insured and accredited by the CIPD and other leading professional bodies, including the Solicitors Regulation Authority and Bar Standards Board.

We have a range of experiences within all UK business sectors both front & back of house from fast footfall, high turnover retail, hotels & catering and pharmaceuticals to Post Production & Advertising.

We are based in Stevenage, Hertfordshire and cover surrounding areas including Bedfordshire & Cambridgeshire. Get in touch today to see how Consensus HR can help.

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Hybrid

Employment Law Newsletter – February 2021

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This Employment Law newsletter covers:

  1. Vaccination and employment

  2. Asymptomatic testing

  3. Coronavirus Job Retention Scheme

  4. PPE for gig workers

  5. Gender reassignment

  6. Our FREE Webinar on Tuesday 23rd February @ 11am – Click here for further info & to book.

Employment Law Newsletter – February 2021

1.Vaccination and Employment

The UK’s vaccination programme is the way out of the pandemic although of course social distancing, mask wearing and PPE are going to be with us for some time yet. But what about employees who refuse to be vaccinated and their refusal is not based on valid medical grounds?

A first step for employers is to provide accurate information about the vaccination programme to the entire workforce and to update Covid-19 safe policies and risk assessments. The second step is to recognise there are two distinct groups who may be unwilling to be vaccinated, the “vaccine hesitant” – those anxious about vaccines – and the “anti-vaxxers” – those who spread conspiracy theories for example that the vaccination programme is intended to control us with microchips.

An employer can’t make it a condition of employment that employees must be vaccinated without risking claims in the employment tribunal. Employers have a duty to provide a Covid-19 safe workplace but if an employee’s employment is terminated for vaccine hesitancy their claim in the employment tribunal for unfair dismissal might succeed.

This is going to be a balancing act for employers. Much will depend on the circumstances of each employment and the employer’s Covid-19 safe policies and risk assessments. Can a vaccine hesitant employee work at home or be redeployed to an area where they do not come into contact with colleagues or customers?

Does an employee have a protected characteristic under the Equality Act which underlies their refusal? The Covid-19 vaccines do not contain pork or other animal ingredients and are endorsed by the British Islamic Medical Association, Hindu Council UK, and the Board of Deputies of British Jews.

Can employers dismiss anti-vaxxer employees who are intent on spreading their beliefs to their colleagues? Such behaviour could jeopardise safety in the workplace and should be addressed in a disciplinary procedure. It is unlikely that anti-vax is a belief protected under the Equality Act because although it may be genuinely held it is arguably not worthy of respect in a democratic society and it is in conflict with the fundamental rights of others.

When an employee provides information about their vaccination status this falls within special category data under GDPR and must be protected accordingly – see the ten-point checklist on the ico.org.uk website, “Special category data”.

Some employers may decide to introduce compulsory policies for existing employees and potential recruits – and risk the claims. But the overall message is not to confuse those who are vaccine hesitant with anti-vaxxers. Someone who is vaccine hesitant may be reassured with full and accurate information.

  1. Asymptomatic Testing

One in three cases of Covid-19 is asymptomatic. Identifying these cases is a crucial arm in the UK’s fight against the pandemic. Government is rolling out asymptomatic testing through local authorities who are prioritising those who cannot work from home. And some employers are rolling out their own schemes, see guidance on the gov.uk site, “A practical guide for employers who want to offer workplace testing for asymptomatic employees”.

Employers have a duty to provide a Covid-19 safe workplace. On the other hand employees have the right to respect for their private and family life under Article 8 of the Human Rights Act. Mandating an asymptomatic test could lead to claims for unfair dismissal but employers might weigh this against the virus spreading through their workforce.

Providing accurate information about asymptomatic testing is key as is a detailed policy and risk assessment. The data gleaned is of course special category data under GDPR.

Employment Law
Employment Law

  1. Coronavirus Job Retention Scheme

The devil is, as ever, in the details and employers and employees alike are referred to guidance on the gov.uk site. In brief:

  • Government continues to pay 80% of wages under the scheme which closes on 30 April 2021. Will it be extended? There’s a Budget on 3 March
  • Home schooling – parents who stay at home to look after school age children are eligible for furlough
  • Furlough claims are now subject to a tight timetable
  • Employers who claim payments have been named online since 26 January. See “Employers who have claimed through the Coronavirus Job Retention Scheme” on the gov.uk site, a step towards greater transparency and a guard against fraud. All claiming employers are listed unless there’s a “serious risk of violence or intimidation”
  • Furlough can’t be used to pay for contractual or statutory notice

  1. PPE for Gig Workers

Delivery drivers and other gig workers have kept the country going during the pandemic but unlike employees don’t have the necessary health and safety protections nor the right to PPE. The Independent Workers Union of Great Britain (IWUGB) has been to Court on their behalf and achieved a notable success.

In R (IWUGB) v Secretary of State for Work and Pensions, the High Court ruled workers should have the same protections as employees (an anomaly which arose because the UK failed adequately to incorporate EU health and safety law including that relating to PPE). This important decision extends health and safety protections and the right to PPE to hundreds of thousands of workers including those in the gig economy.

Employers should:

  • Update workers’ contracts
  • Provide appropriate risk assessments, procedures and PPE for workers as well as employees
Employment Law
Employment Law Newsletter – February 2021

  1. Gender Reassignment Discrimination

The employment tribunal case of Rose Taylor v Jaguar Land Rover Limited has thrown the spotlight on trans discrimination and employers should take careful note of its findings.

The Equality Act 2010 under section 7 protects against discrimination, harassment or victimisation on the basis of “gender reassignment”. If someone has this protected characteristic the following is unlawful:

  • Direct discrimination – treating someone worse because they are trans
  • Indirect discrimination – the organisation has a particular policy or way of working that puts trans workers at a disadvantage
  • Harassment – a trans worker would have a claim unless the employer could show they did everything it could to prevent this behaviour
  • Victimisation – for example being sacked for claiming harassment

A person has this protected characteristic if they propose to undergo or are undergoing or have undergone a process (or part of a process) for the purpose of gender reassignment by changing physiological or other attributes of sex. Reassignment is a personal process and doesn’t have to involve medical intervention. In other words, cross dressing to express gender identity is protected.

 

In 2016 a Women and Equalities Committee report recommended that the terms “gender reassignment” and “transexual” were outdated and should be replaced with the umbrella term “trans”. The Equality Act has yet to be amended. 

Ms Taylor worked for twenty years at Jaguar Land Rover as an engineer, originally identifying as male. When she disclosed she was gender fluid and transitioning, and would most of the time dress as a woman but had no intention of undergoing surgery, she was subjected to discrimination and harassment. The employment tribunal held that Ms Taylor was on a journey of transition away from her birth sex and that the protections under the Equality Act extend to those who describe themselves as gender fluid, non-binary or transitioning.

The inability of the Jaguar Land Rover line managers and HR to support an employee transitioning in the workplace is notable and is a wakeup call to all employers. These managers did not have the necessary training and did not receive the necessary support themselves to support Ms Taylor for example in the question of what toilet she was to use. The employment tribunal described the advice from HR as “woeful”.

The employment tribunal held that there were multiple occasions of harassment. For example the comment, “So what’s going on? Are you going to have your bits chopped off?” When Ms Taylor brought examples of harassment to HR, they told her “not to be sensitive”. She heard herself referred to as “it” and again reported this to HR, who said, “Well what else do you want them to call you?” A female colleague looked at her and said, “Oh my God!” She was told by a female engineer, “It’s nice to see you here in your attire. You have cracking legs”.

She sought support from her line manager. He described her transitioning as “not normal” and told her to use the disabled toilets. The employment tribunal held this amounted to direct discrimination. A person who was not transitioning would not have been treated this way.

Jaguar Land Rover paid Ms Taylor £180,000 (not including her costs application). They also agreed to take urgent steps to prevent anything like this ever happening again. The company Board agreed to:

  • appoint one of its number as a Diversity and Inclusion Champion
  • commission a report by a recognised diversity organisation, such as Stonewall, to investigate diversity and inclusion throughout the company (to include speaking to Ms Taylor) and to produce a report setting out the current position and the steps necessary for the employer to become a “standard setting organisation” in the diversity and inclusion field across all the protected characteristics
  • appoint an expert to produce a report on progress by reference to the original report every year for the next five years
  • send these reports and annual reviews to all employees and to Ms Taylor and to make them public.

An up to date equalities policy is required by all employers together with a transitioning at work policy, with regular training and support for managers and HR. These policies should be up to date with trans terminology, provide opportunities for employees to express preferences for their pronoun and provide gender neutral facilities.

Contact us for free advice on the issues raised in this Newsletter. In this thirty-minute session we will review your situation and how you can achieve your objectives.

 

The topics covered in this Newsletter are complex and are provided for general guidance only. Therefore, if any of the circumstances mentioned in this Newsletter have application to you, seek expert legal advice.
Lockdown

Did you know? 10 Key HR Facts

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Did you know? 10 Key HR Facts
  1. Discrimination can take place before, during & after employment & latest figures show an increase in all protected areas of the Equality Act 2010.  Awards can be unlimited!!
  2. The maximum amount that you can be awarded as compensation for Unfair Dismissal is presently the statutory cap of £88,519, or 52 weeks gross salary- whichever is the lower. This is in addition to the basic award which can be ordered by the Tribunal of up to a maximum of £16,140. These figures are from 6th April 2020.
  3. There is no default retirement age anymore and was stopped on 1st October 2011 unless you can objectively justify it. Examples could include air traffic controllers and police officers.
  4. Failure to consult correctly when making Redundancies can result in a Protected Pay award of 90 days pay?
  5. When employees are on Furlough they are allowed to do work training, as long as they are not making money for their employer?
  6. Employees that were put on Furlough when first introduced and are still on it, could have been on it a year, if still on it on the 23rd March 2021?
  7. An Employment Tribunal (ET) on average lasts 4 days and costs £8.5 k per day?  (Totals: £34k)
  8. HR is based on Civil Law and the balance of probabilities , reasonableness.
  9. The ACAS Code of Practice is used at all times to set the minimum standard of fairness that workplaces should follow & which an Employment Tribunal will use when deciding an outcome. 
  10. We hold the highest Employment Law qualifications (Level 7) with our Chartered Institute and all our advice is fully professionally liability insured and accredited by the CIPD and other leading professional bodies, including the Solicitors Regulation Authority and Bar Standards Board.

These are our latest did you know? 10 Key HR / Company Facts and are just a  few of the things we get asked……….

Contact Us

We are a personal, unique HR & Employment Law service, helping employers who cannot support their own in-house Human Resources department. 

Our monthly packages are designed to be affordable and scales with your business as you grow.

We hold the highest Employment Law qualifications (Level 7) with our Chartered Institute and all our advice is fully professionally liability insured and accredited by the CIPD and other leading professional bodies, including the Solicitors Regulation Authority and Bar Standards Board.

If you have had a positive experience with Consensus HR, we would kindly ask that you leave us a review for others to see.

INFO

01438 310062
[email protected]

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Stevenage,
SG1 2DX

Did you know? 10 Key HR Facts

Management Development Workshops

We continually run a a range of fact / Knowledge gaining, informal, friendly & exciting HR Management / business owner development workshops designed to equip individuals with the skills required to run their businesses successfully.

If your business would like to run a specific HR Workshop such as Performance Management, Disciplinary & Grievance Management, or Customer Service to name a few, please get in contact today or alternatively book on to one of our next planned events shown below.

Performance Reviews (Appraisals)

Thursday 14th January 2021 – 9:30am – 15:30 pm

Click here for further information.

Communication Skills

Thursday 11th March 2021 – 9:30am – 13:30 pm

Click here for further information.

 Coaching Skills

Thursday 13th May 2021 – 9:30am – 13:30 pm

Click here for further information.

 Delegation Skills

Thursday 8th July 2021 – 9:30am – 13:30 pm

Click here for further information.

Managing Discipline in the workforce (Disciplinary & Grievance)

Thursday 11th February 2021 – 9:30 am – 15:30 pm

Click here for further information.

Team Building

Thursday 15th April 2021 – 9:30am – 15:30 pm

Click here for further information.

Successful Recruitment

Thursday 10th June 2021 – 9:30am – 13:30 pm

Click here for further information.

Contact us today.

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HR Newsletter – August 2018 – More Employment Law Judges

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.

To receive a full copy of our monthly HR newsletter and to give your consent contact us today.

“WE TAKE THE PAIN OUT OF EMPLOYING PEOPLE WHILST PREVENTING PEOPLE PROBLEMS.”

HR Software:

HR Software designed to tame all of your HR chaos… easily and safely access all your HR data, manage and monitor employee sick leave and absences, securely store or share documents with specific employees, and more!

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Free yourself from the holiday management nightmare by contacting us today.

HR Newsletter – June 2018

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Introduction:

Welcome to the preview of the June 2018 HR newsletter from Matthew of Consensus HR.  This month we have a range of topics covered and another FINAL one on GDPR following the launch in May 2018.

Within this months newsletter we discuss:

  • How a poor INVESTIGATION and not following the law correctly cost a company £20,000
  • How to get rid of those SPREADSHEETS and improve your current HR Admin using the cloud from as little as £9 per month.
  • GDPR – The launch & companies not prepared.  Were you?
  • MANAGEMENT DEVELOPMENT – Leadership & Delegation.

To receive a full copy of our monthly HR newsletter and to give your consent contact us today.

“We take the Pain Out of Employing People whilst Preventing People Problems.”

We are a personal, unique HR & Employment Law service, helping employers who cannot support their own in-house Human Resources department. Our monthly packages are designed to be affordable and scales with your business as you grow.

We hold the highest Employment Law qualifications (Level 7) with our Chartered Institute and all our advice is fully professionally liability insured and accredited by the CIPD and other leading professional bodies, including the Solicitors Regulation Authority and Bar Standards Board.

We are based in Baldock, Hertfordshire and cover surrounding areas including Bedfordshire & Cambridgeshire. Get in touch today to see how Consensus HR can help.

GDPR – Were you ready? The date has now passed – 25th May 2018

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Many organisations felt unprepared for the launch of the General Data Protection Regulations (GDPR) deadline, various polls suggest, but experts are reassuring business owner that they still have time to put measures in place.

A recent report by Crowd Research Partners found that 60 per cent of businesses affected by the GDPR felt they were unable to get everything prepared for today.

Meanwhile, a study released earlier this month by IBM revealed that only a third (36 per cent) of more than 1,500 business leaders surveyed believed they would be fully compliant by today, although 84 per cent thought being able to prove they complied with the GDPR would differentiate their company, and 76 per cent felt the regulations would build trust between them and their customers.

A report by the Ponemon Institute, which was published last month and examined more than 1,000 companies in the US and European Union, found that two in five (40 per cent) thought they would not be entirely compliant until after 25 May, while a further 8 per cent said they did not know when they would be compliant.

“Ideally, HR professionals should have revisited their data protection practices detailed in employment contracts, staff handbooks and company policies, and ensured that the business is GDPR-ready and compliant,” Keely Rushmore, senior associate at SA Law, told People Management. “However, it’s not too late and taking the right steps now is essential to avoid more confusion and, at worst, a hefty fine.”

Matthew Pinto-Chilcott of Consensus HR comments “When we knew this was coming, we ensured all our clients were made fully aware of the new GDPR Regulations and what they had to do within their business and with their teams.  This involved all employees being shown the new GDPR Policy and what this entailed together with the changes such as no costs and replying within one month.  All employees were asked to confirm a change to their Contracts of Employment with a new paragraph added on GDPR with a GDPR HR Audit carried out for each member of the team.  A detailed instruction manual / forms was also made available for clients to ensure ease when introducing to their company.  I must say however that many found it time consuming due to ensuring that all members of their team were properly / reasonably informed.  We now wait to see the first ET case and any precedent set”

Some of our previous blogs discusses GDPR in more detail:

  • Preparing for the General Data Protection Regulations (GDPR)
  • 12 Steps – Preparing for the General Data Protection Regulations (GDPR)
  • The Arrival of the new General Data Protection Regulations (GDPR)

 

Hayley Kirton of People Management– 25thMay 2018 discusses further.

Wrongfully Dismissed employee results in pay out of £20k at Employment Tribunal.

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A Poundland store manager was unfairly and wrongfully dismissed when she was fired for allegedly stealing a drink, Norwich Employment Tribunal has ruled.

Miss Stokes was awarded £20,930.48 plus costs after employment judge Postle found that the discount chain had no reasonable basis for its belief of her supposed misconduct and followed a flawed investigation process.

Stokes worked at Poundland from 2009 as an assistant manager and later store manager. She was successful in her role until a new area sales manager joined in 2015.

In June 2017, an area sales manager, Ian Jones, and the acting store manager entered Stokes’ office without warning to investigate an allegation that she had taken drinks from the damaged stock area. She was told that CCTV footage showed her consuming the drinks, although she was only shown a few seconds of her walking with a drink in her hand.

 

Matthew Pinto-Chilcott from Consensus HR comments “This case held at the Employment Tribunal (ET) – Norwich – Case Number: 3327953/2017 in April this year demonstrates how companies still get it wrong when dealing with discipline in the workplace.  Too many times management fail to act in a reasonable manner and take the correct / necessary steps.  The ACAS Code of Practice clearly details how these should be done professionally, fairly & reasonably and can be obtained easily on the internet.

 

An Investigation is a key vital step that needs to be taken at all times prior to any action being taken and needs to be thorough taking into account the allegation.   Managers / Business owners need to make clear what the allegation is and what area of a fair reason this constitutes.  Is it Conduct, Capability, Performance, Some Other Substantial Reason, Compulsory Bar, Redundancy and list this in all correspondence.  This helps to ensure everybody is aware of the allegation whilst allowing a full / comprehensive investigation to take place.”

 

Miriam Kenner of People Management discusses further:

Employers duty to make reasonable adjustments for disabled workers & applicants?

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:

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.

 

 

Employment Law Updates – March 2018

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.”

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