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Stress Awareness Month | Consensus HR in Herts, Beds
Latest blog: Stress Awareness Month: NEBOSH and CIPD join HSE’s Working Minds campaign
Further to our blog written earlier this month, the Health & Safety Executive (HSE) have published an excellent article which can be seen below with a range of useful tools for business owners to ensure they and their teams are working to current Health & Safety Law / best practice. Our Chartered Institute of Personnel & Development (CIPD) which we are fully accredited to, have also recently become partners as outlined below:
April is stress awareness month and HSE is urging employers to prevent and reduce stress in their workplace.
HSE’s Working Minds campaign brings together a range of tools and support to help businesses. These include:
- free online learning
- talking toolkits
- risk assessment templates and examples
The Chartered Institute of Personnnel and Development (CIPD) and The National Examination Board in Occupational Safety and Health (NEBOSH) are the latest organisations to join as campaign partners, taking the total number of supporters to more than 30.
HSE and NEBOSH have also jointly developed the NEBOSH HSE Certificate in Managing Stress at Work. This one-day qualification is aimed at helping you and your organisation identify and reduce workplace stressors in order to create a positive, healthier workplace.
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April is Stress Awareness Month: tackle stress in the workplace with five steps in five weeks | Consensus HR | Herts, Beds, UK
Did you know? April is Stress Awareness Month:
This April, Britain’s bosses are being invited to follow five simple steps to prevent and reduce stress in their workplace.
The Health and Safety Executive’s (HSE) Working Minds campaign has called on employers to support workers mental health during Stress Awareness Month.
Liz Goodwill, head of the work-related stress and mental health policy team at HSE, said: “We are inviting business owners, employers and managers to join others across Britain to make a difference during Stress Awareness Month in five steps.”
Over the course of the month, employers are encouraged to focus on one of the campaign’s 5 Rs for each of the five weeks.
They are:
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to Reachout and have conversations,
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Recognise the signs and causes of stress,
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Respond to any risks you’ve identified,
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Reflect on actions you’ve agreed and taken,
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make it Routine.
Preventing work-related stress isn’t just the right thing to do by workers, it’s the law. All employers are required to prevent work related stress to support good mental health in the workplace.
The Working Minds campaign brings together a range of tools and support to help businesses and workers including free online learning, Talking Toolkits, risk assessment templates and examples.
Liz added: “Failing to manage work-related stress can cost employers in reduced productivity, sickness absence costs, or even losing a valued member of the team. Employers are required to assess the risk of work-related stress impacting their workers, and act on the risks identified.
“As well as guiding you step by step, we provide all the practical templates, tools and resources you need to get started or, you can use it as an opportunity to review what you already do. A huge part of this is making it part of your everyday working life, not just a one-off tick box that gets forgotten about.”
The CIPD, the professional body for HR and people development, and The National Examination Board in Occupational Safety and Health (NEBOSH) are the latest organisations to join as campaign partners, taking the total supporters to more than 30.
Rachel Suff, senior policy advisor, employee relations at the CIPD, says: “Many organisations are reactive and tend to put more emphasis on providing support when people become ill rather than on prevention, including for mental ill health and stress. We need both! We want to see every organisation taking a proactive approach to employee wellbeing. We’re supporting the Working Minds campaign to help employers to create the working conditions and environment that prevents stress and supports good mental health. That also means designing jobs with realistic workloads and targets, and encouraging people to have a healthy work-life balance.”
There are six main areas that can lead to work-related stress if they are not managed properly. These are: demands, control, support, relationships, role and change. Factors like skills and experience, age, or disability may all affect someone’s ability to cope.
Matt Powell-Howard, Head of Product Development at NEBOSH, said: “I’m really pleased that NEBOSH is supporting the Working Minds campaign as we are committed to promoting good mental health and preventing work-related stress. We were delighted to have also collaborated with HSE on the development of the NEBOSH HSE Certificate in Managing Stress at Work qualification, which is designed to help business meet their legal obligations in this area.”
If you are an employer looking for support, a good place to start is to register for free bitesize learning. https://workright.campaign.gov.uk/working-minds-learning/
HSE – 4-04-24
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More companies offer staff free testing for ADHD | Consensus HR | Herts, Beds
The UK’s largest long-term savings and retirement business, Phoenix Group, has joined a growing list of companies offering to test workers for attention deficit hyperactivity disorder (ADHD) amid concerns that NHS delays are leaving many without support. The entertainment giant Disney is now also offering all employees ADHD and autism assessments under its private healthcare service. The Telegraph notes that magic circle law firms Clifford Chance, Freshfields Bruckhaus Deringer, and Allen & Overy have all introduced workplace schemes which help lawyers with ADHD diagnostics and support. PwC UK also provides testing for neurological conditions including dysgraphia, a disorder where people have difficulty reading and writing.
Our HR Comment / Advise: More companies offer staff free testing for ADHD | Consensus HR | Herts, Beds
Matthew Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: “ADHD is covered under the Equality Act 2010 and required employers to make reasonable adjustments in the workplace for all members of the team and job applicants. Employees / applicants who have a disability or long-term health condition are covered and ADHD qualifies for both,
Most people with ADHD do not tend to tell their employers as they are worried about any possible repercussions at work. However, employers / members of the management team should encourage an open atmosphere where members of the team can be open and honest, so that if any reasonable adjustments are needed, they are implemented. Employers, should arrange to seek the appropriate medical advice from a medical professional so that the member of team is able to work and not be seen as less capable or as troublesome, especially given the stigma that surrounds ADHD.
Attention Deficit Hyperactivity dDsorder (ADHD), autism and dyspraxia are forms of neurodivergence – there are others too. Being neurodivergent will often amount to a disability under the EQa 2010, even if the person does not consider themselves to be disabled.”
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March 2024 Employment Law Newsletter | Consensus HR – Herts, Beds
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.”
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Construction firm fined after worker dies from fall | Consensus HR – | Herts, Beds
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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Workplace mental health service firm faces investigation | Consensus HR | Herts, Beds
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.
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.
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Spring budget 2024: Chancellor encourages more people into work | Consensus HR – Herts, Beds
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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Ayche v The Hop Box Ltd – Disability discrimination: Reasonable adjustment | Consensus HR – Herts, Beds
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.
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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Poor mental health keeping more young people out of work | Consensus HR – Herts, Beds
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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Monthly HR blog Newsletter – March 2024 | Consensus HR, Herts, Beds
Welcome
In this months blogs recap from a selection of our February 2024, blogs we discuss:
- Determining an Individuals Employment Status | Consensus HR – Herts, Beds
- Proposal to bring back fees in Employment Tribunals and the EAT | Consensus HR – Herts Beds
- Britain has a bigger but sicker workforce than previously thought | Consensus HR – Herts, Beds
- Government takes action against ‘fire and rehire’ practices | Consensus HR – Herts, Beds
- Manual handling at work: guidance on the law | Consensus HR – Herts, Beds
- More than 500 businesses fail to pay minimum wage | Consensus HR – Herts, Beds
Determining an Individuals Employment Status | Consensus HR – Herts, Beds
Summary:
When determining an individual’s employment status, it is always important to return to the tests set down in the law as shown in Plastic Omnium Automotive Ltd v Horton.
Law:
Employment status has been the subject of much debate over the years, and a number of significant cases have been brought in an effort to determine where the line lies when it comes to employees, workers, and those not in an employment relationship.
The legal definition of the various status’ can be found in the Employment Rights Act 1996 (ERA 1996). Section 230. Under this, an “employee” means an individual who has entered into or works under a contract of employment.
A “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.
Proposal to bring back fees in Employment Tribunals and the EAT | Consensus HR – Herts Beds:
The Ministry of Justice (MoJ) has launched a consultation into the proposed reintroduction of modest fees in the Employment Tribunals (ET) and Employment Appeal Tribunal (EAT).
With full details available at https://consult.justice.gov.uk/digital-communications/introducing-fees-employment-tribunals-eat, it states that the aim is to contribute to the continuous improvement of the Courts and Tribunals Service and to reduce the cost to the taxpayer to fund these services.
The proposal is to introduce “modest fees” for claimants to bring a claim in the ET and appellants bringing an appeal in the EAT.
Britain has a bigger but sicker workforce than previously thought | Consensus HR – Herts, Beds:
The Office for National Statistics (ONS) has revised its estimates of the size and shape of the UK labour market showing that it has a bigger workforce, with employment up 170,000 compared to previous estimates.
However, the ONS has also highlighted that the number of people economically inactive due to long-term sickness has been revised up from its previous record high of 2.6 million to 2.8 million.
Independent think tank, the Resolution Foundation, explained that ONS’ reweighting of the labour force survey was to reflect the UK population growing faster than previously thought and it confirms that the labour market is bigger but weaker than previous estimates.
Government takes action against ‘fire and rehire’ practices | Consensus HR – Herts, Beds:
A new statutory Code of Practice concerning certain controversial dismissal tactics will, the Department for Business and Trade (DBT) argues, protect workers’ rights whilst respecting business flexibility.
Dismissal and re-engagement, also known as ‘fire and rehire’, refers to when an employer sacks an employee and then offers them a new contract on new, often less favourable, terms.
Business Minister Kevin Hollinrake said: “Our new Code will crack down on employers mistreating employees and sets out how they should behave when changing an employee’s contract.”
It will, he went on, make clear how employers must behave in this area and help to preserve security and opportunity for those in work.
Manual handling at work: guidance on the law | Consensus HR – Herts, Beds:
As an employer, you must protect your workers from the risks of manual handling injuries in the workplace.
You can find help with preventing these sort of risks in your workplace on the HSE manual handling website pages.
There is a range of information and advice for employers, including sections on assessing manual handling and training for workers.
More than 500 businesses fail to pay minimum wage | Consensus HR – Herts, Beds:
More than 500 businesses, including Greggs and Harrods, failed to pay some of their employees the minimum wage, according to a list released by the Department for Business and Trade. The analysis, which covers breaches between 2015 and 2023, shows that recruitment agency Staffline topped the list for failing to pay 36,767 workers correctly, while Estée Lauder failed to pay £894,980 to almost 6,000 workers. The report shows that 524 employers have repaid more than 172,000 workers almost £16m, plus an additional penalty, for breaches in paying the statutory national minimum wage. Kevin Hollinrake, the minister for enterprise, markets and small businesses, said: “Employees deserve to get paid properly for the hard work they put in.” Caroline Harwood, an employer tax partner at BDO, said: “It’s always a bit of a shock to see so many well-known names appearing on HMRC’s list of employers who have been found to be in breach of national minimum wage rules.”
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In our current Monthly recap HR blog Newsletter – February 2024 we have:
- Determining an Individuals Employment Status | Consensus HR – Herts, Beds
- Proposal to bring back fees in Employment Tribunals and the EAT | Consensus HR – Herts Beds
- Britain has a bigger but sicker workforce than previously thought | Consensus HR – Herts, Beds
- Government takes action against ‘fire and rehire’ practices | Consensus HR – Herts, Beds
- Manual handling at work: guidance on the law | Consensus HR – Herts, Beds
- More than 500 businesses fail to pay minimum wage | Consensus HR – Herts, Beds
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Steel v Spencer Road LLP – Clawback provisions: Restraint of trade | Consensus HR – Herts, Beds
SUMMARY
A clawback provision can disincentivise an employee to resign, but this is not the same as a restraint of trade.
A full copy of the Approved Judgement – Steel v Spencer Road LLP – Clawback provisions: Restraint of trade can be found by Clicking Here. Steel v Spencer Road LLP – Clawback provisions: Restraint / trade
LAW
The restraint of trade principle, which comes from contract law, is based on the idea that an individual should be free to work without undue interference from another party. Contractual terms that appear to restrict this freedom to work or carry out a trade or business must go no further than is necessary to protect an organisation’s legitimate business interests. Where they do, they could be deemed void.
Steel v Spencer Road LLP – Clawback provisions: Restraint / trade – A two-stage test is applied in deciding where a clause breaches the restraint of trade doctrine.
1) Is the clause in fact a restraint of trade; and
2) If it is, is it reasonable with regard to the parties and the public interest?
FACTS
The claimant worked for the defendant for almost seven years prior to his resignation. Over that time, he received a substantial amount in discretionary annual bonuses. In the last year of his employment, this bonus was to the value of £187,500. Shortly after receiving the bonus, the claimant resigned his position to go and work for a competitor of the respondent.
Under his contract of employment, the discretionary bonus was conditional on (1) the employee staying in employment for three months following the payment of the bonus and (2) notice to terminate the contract not being served or given during that three-month period.
In accordance with the above terms, or “clawback provisions”, the respondent requested repayment of the bonus. The claimant refused to do this, and so the respondent served a statutory demand for the full amount of the bonus plus over £12,000 in legal fees.
INSOLVENCY AND COMPANY COURTS (ICC)
In response to the statutory demand, the claimant applied to the ICC, which has the power to set aside a statutory demand if the debt is disputed “on grounds which appear to the court to be substantial”. Central to his argument for why this should happen was that the clawback provisions were an unreasonable restraint of trade, and /or alternatively they were penalty clauses which are unenforceable.
The ICC dismissed the application, holding that the clawback provisions could not be a restraint of trade as defined in law as they didn’t stop the claimant from working elsewhere. Whilst there might be circumstances, the judge went on, where the consequences of a clawback clause are so severe that they would be out of proportion to the benefit received by the respondent, this was not the case here.
The argument that the clawback provisions were penalty clauses was also rejected.
This was appealed by the claimant and the case went before the high court.
HIGH COURT
Looking at the facts of the case, the High Court drew a distinction between a disincentive to resign and a restraint of trade and held that a clause that disincentives an employee from leaving employment does not in itself make that clause a restraint of trade. In this case, the bonus scheme could cause an employee to remain in employment longer than they would have liked to avoid the clawback, but it did not actually stop them leaving or working elsewhere. It just made that option less palatable.
Looking at the clawback provisions alongside other clauses within the contract, including a three month notice period and a thirteen-week post-termination restriction on working for a competitor, the court rejected that argument that all together these acted as a sufficiently strong disincentive to resign that the effect was to act as a restraint of trade. In any event, the claimant had not challenged these provisions.
Note for employers.
Clawback provisions are sometimes used as a retention tool by employers, and this case can reassure employers that where these are applied, they are likely to be enforceable (although as always, each case would be determined on its specific facts). However, employers should avoid using this as their only retention tool, as its use can leave an exiting employee, and those who remain in employment, with a negative impression of the employer and could impact on employee satisfaction and engagement.
This case is a reminder for employers of the usefulness of clawback provisions in discouraging employees from leaving with little or no notice. They can be a strong, but short term, disincentive to an employee resigning and are arguably less likely to be successfully challenged than restrictive covenant clauses that act to prevent the (ex)employee from working elsewhere.
If the government does go ahead with its plans to limit non-compete clauses to three months, as was announced in 2023, employers may come to rely on clawback provisions more than they previously would have. Making sure they are proportionate to the means which they seek to achieve and do not go further than disincentivising an employee from resigning will be important for employers looking to switch to using these as an alternative to a non-compete clause, or alongside them.
HRInform 23-02-24
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