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Archive for the ‘Employment law’ Category

Recent Cases of Interest

In business principles, contracts, Employment law, Equality, Uncategorized on September 27, 2021 at 10:54 am

Forstater v CGD Europe and Others – Discrimination on the Grounds of Philosophical Belief

The Equality Act 2010 protects against discrimination based on 9 protected characteristics, namely age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, pregnancy and maternity.

In the recent case of Forstater v CGD Europe and others, Ms Forstater registered a claim with the Employment Tribunal that her contract with CGD Europe, who are a registered research or think-tank charity, was not renewed because of her gender-critical beliefs.

Before deciding whether there was any wrongdoing on the part of CGD Europe, the Tribunal had first to consider whether her belief was indeed protected by the Equality Act.   

In a complex scenario centred around transgender rights and identity, Ms Forstater’s viewpoint was, in a nutshell, that biological sex was real, important and unable to be changed. Her claim raised the debate about the scope of trans rights and the relevance of an individual’s biological sex, versus their gender identity.

Initially the Tribunal found that Ms Forstater’s beliefs were contrary to trans rights previously established by the European Court of Human Rights. However, the Tribunal’s decision has now been overturned by the Employment Appeal Tribunal, who considered that Ms Forstater’s views were deserving of respect and that only the most extreme beliefs should be excluded from protection under the Equality Act.

Ms Forstater’s claim has therefore now been referred back to the Employment Tribunal for them to consider whether CGD Europe’s original decision not to renew her contract was discriminatory.

Follows v Nationwide Building Society – Indirect Associative Discrimination

Ms Follows had been employed by Nationwide Building Society as a Senior Lending Manager and for the last 7 years had been home-based allowing her to look after her disabled mother.

As a result of a re-structuring exercise the society decided to reduce the overall number of Lending Managers and stipulated that those to be retained must be office-based. As a result, Ms Follows made a claim to the Employment Tribunal of unfair dismissal, indirect associative discrimination and indirect sex discrimination.

The tribunal upheld all of these claims against the Nationwide on the basis that the stipulation about office working put Ms Follows at a disadvantage because of her association with her disabled mother and that her dismissal had taken place without reasonable steps being taken to avoid that disadvantage.

This is the first time that a claim of indirect associative discrimination has been upheld since the introduction of the legislation in the UK.  

Proposed Flexible Working from Day One

In business principles, contracts, Employment law, family, government on September 27, 2021 at 10:47 am

The Government has launched a consultation into changing current flexible working legislation. This is open until 1 December 2021. Its proposal is to make the right to request flexible working from day one of employment.

Its aims to bring more employees in to the scope of the legislation and believes it will benefit productivity, motivation, retention and help attract more talent to organisations.

Its proposal is to introduce measures to help make flexible working the default, unless employers have good reasons not to. The consultation will also assess whether the current 8 business reasons for refusal are still valid. The process of managing flexible working requests and the time scales will also be assessed. There is also consideration to allow employees to submit more than one request per year, which is currently all they are entitled to do.

We will await the outcome of the consultation and if the proposal is approved we can assist you with amending your current policy within the handbook to ensure you continue to be legally compliant.

Until then, all current rules and processes will remain in place as usual.

Changes to employment terms and conditions

In contracts, covid-19, Employment law on September 1, 2021 at 9:15 am
In normal circumstances it is not possible for the employer to make changes to the employment arrangements without a) a contractual clause providing for changes or b) the consent and agreement of both parties.
 
Sometimes a working arrangement changes and nothing is written down or recorded about the change. The written particulars of employment are important. If there is a conflict arising from what the contract requires the written terms will normally prevail. However, there is a long-established situation called “custom and practice”. It is possible for something that is done regularly and consistently over time, that is notorious (i.e. known to all) to be incorporated into a contract. 
 
There is much said about “hybrid working” and some academics and employers have stated that work will never be the same again. One survey report identified that circa 40% of employees will leave their current employment if they are unable to work remotely. Other labour market reports warn of significant churn in the employment market with employees stating an intention to leave their current workplace. The bigger debate around this is outside the scope of this article.
 
There is no single solution for ALL employers here. Some work lends itself to homeworking and variable hour working and other work does not. Most job roles have multifaceted elements to them meaning individual job roles are more blended and incorporate technology tools more than even 5 years ago.
 
We advocate discussion and an alignment of expectations. Flexibility has the potential for benefits and performance improvement. The other side of the coin is managing remote working is challenging and people benefit from meeting for working collaboration and also social interaction. It’s all too easy to say well let’s have the best of both worlds and mix it up a little.
 
We suggest when exploring flexible working, keep an eye on any core irreducible minimum involvement in office attendance, in person meetings, client service delivery and inter-employee / intradepartmental collaboration. A further period of temporary working and review could help all concerned arrive at the best working solution. Define what the new working relationship looks like in specific terms.
 
Your new agreement working agreement will be either a temporary conditional change subject to review of a permanent change to terms and conditions. So, write this down and record it as an amendment to terms and conditions of employment.
 
I opened with changes to the employment contract requiring consent and agreement. There is an exception to this. An employer may be faced to a compelling reason to reorganise the workforce in response to new ways or methods of working. Faced with reduced demand, a business may be compelled to “fire and rehire”. This term surprises many people and suggests that employment contracts can be torn up at will.
 
This process involves consulting with employees and serving notice of termination for the current job and offering new work on different terms of engagement. The strategy is not without risk, if the employee doesn’t want to work on less favourable terms, they may decide to claim they have been unfairly dismissed, even start under the new terms and bring a claim against the employer for the loss of the first job.
 
Generally speaking, if the majority of the workers agree to be engaged on new terms, rather than have no job at all, this points towards a reasonable and fair process. Should a group of employees be retained in employment, perhaps on reduced hours, rather than being made redundant this process may serve a useful purpose. The employer in this process is not selecting those to retain but applying equally the arrangement to the whole group of employees.
 
The government has commissioned a report from ACAS on the ‘fire and rehire’ practice to consider if the process is being abused. The practice has been open to employers for years. The conclusion is that there is nothing in the report to recommend any legal reform. Perhaps the timing of this report is unhelpful as in reality the furlough scheme has mitigated the use of the strategy from March 2020. Before the announcement of a ‘furlough scheme’ at half past five on a Friday afternoon, fire and rehire was perhaps the only available alternative for many businesses. From the end of September 2021 this may well be the only option available together with compulsory redundancies.
 
Key Action Point
The end of the Job Retention Scheme may well lead to a need for employment contracts to be varied by a written agreement to reflect working hours, the place or places of work and any fundamental changes in duties.  

Covid-19: Workplace measures

In business principles, covid-19, Employment law, government, Uncategorized on September 1, 2021 at 9:04 am
What do employers need to do to keep work place safe?

Workplace rules for wearing face masks or visors, hand washing, distancing, pedestrian routes, workstation sanitation or other hygiene measures and other shielding / preventative controls measures remain unaffected by 19th July removal of restrictions.
 
Statistics identify that people aged between 20-29 have the highest infection rates for COVID. Vaccination in the UK is not compulsory for all. There is no general provision that an employer can rely upon at the time of writing to compel their staff, freelancers, contractors, or visitors to take up the vaccine. There is a potential conflict within the workplace where employees refuse to work together for fear of getting COVID from a colleague whose lifestyle choice has greater exposure to infection; potentially giving rise to risk without any outward sign in the case of being asymptomatic. Separating workers in this situation would be wise. Existing workplace control measures may be sufficient. Should an unvaccinated worker have to work with others closely then this may give rise to redeployment to other duties.
 
Care Homes and health workers have special circumstances and specific justification for insisting that employees are vaccinated. Following consultation and discussions regarding any viable alternative redeployment, an employee may find that an employer is compelled to dismiss the unvaccinated employee. A dismissal of this kind falls under the heading of a Some other substantial reason [SOSR] dismissal. This is a potentially fair reason for dismissal, however, the specific context, the reasonableness of the employer’s discussions, and ultimately, justification for dismissal would all be relevant considerations for an employment tribunal. Should specific legislation be passed in this area, likely to be on a sector by sector basis, dismissal would be potentially fair but we await any changes here.    

Regarding vaccination for Care Home workers, the requirement becomes law on 11th November 2021. The government has allowed a grace period of 16 weeks from the 22nd July to allow for vaccination to take place. This means 16th September is the last date for care workers to get their first jab so they are fully vaccinated before regulations come into force.

Government ministers have stated at this time they have no intention of creating legislation in relation to compulsory vaccines outside Care Homes with employers needing to assess their own circumstances. This does not rule out a policy of “no jab – no job” for a business that can justify a vaccine policy and consult with staff who may not be able to comply. 
 
Key Action Point: 
Review the workplace rules that have been in place over the last year, assess the protective measures in place, ensure that necessary measures are implemented. Communicate with staff about the purpose of the measures: why they are in place and when they will next be reviewed. Social relaxation of lockdown rules does not automatically equate to an abandoning of workplace safety measures. 

Dealing with DSARs

In business principles, discipline and grievance, Employment law, Uncategorized on March 30, 2021 at 10:45 am

Data Subject Access Requests (DSARs)

Employers sometimes have to deal with DSARs from employees trying to bolster grievances or from former employees. It can be very onerous to comply with DSARs, which are one of the core data subject rights under GDPR. The following guidance from the Information Commissioner’s Office provides some clarity on the subject.

Employers often hold large amounts of data on employees and if the employee has been vague or deliberately wide in the DSAR, it may be wise to ask for clarification as to the information sought. The ICO has now confirmed that the clock can be stopped while organisations wait for a requester to clarify their request.

Any DSAR must be dealt with effectively, within one month of receipt. This can be extended by two months if the DSAR is complex. Such complexity arises if it involves information from many different email accounts or requires a significant amount of redaction of others’ personal data.

As an employee making a DSAR does not have rights above other employees, redaction will need to occur if an employer must provide emails that contain personal data relating to others. Therefore, it’s possible that large sections of emails may be blacked out.

Following case law under the Data Protection Act, the ICO’s guidance makes it clear that data controllers should make reasonable efforts to retrieve data but should not conduct searches that would be unreasonable or disproportionate to the importance of providing access to the information. It is not necessary to ‘leave no stone unturned’ – reasonable efforts should be good enough.

Employers need to be able to demonstrate they have looked in any email back-up systems and data saved on individual managers’ PCs. As a result, it is likely that managers may need to be asked to check and confirm they have not saved such information outside of their email account.

Organisations may also wish to closely consider retention periods for employee data. Keeping all data and emails relating to an employee during their 20-year career is likely to make an employer wish it had brought in a retention policy to delete data after six years, if a detailed DSAR is raised.

Data controllers need not comply with manifestly unfounded and excessive requests and the ICO has now provided additional guidance and broadened its definition of these terms. To determine whether a request is manifestly excessive employers should consider whether it is clearly or obviously unreasonable, considering all the circumstances. They should be prepared to justify their position to the ICO in the event of a complaint.

The ICO confirms what can be included in the “reasonable fee” that can be charged for dealing with excessive, unfounded or repeat requests. The fee should be reasonably calculated and can include the costs of making the information available, including photocopying or using an online platform, equipment and staff time. Data controllers may wish to give some thought to their hourly rates and whether they can provide information about these in their privacy notice.

Complaints about how an employer responds to DSARs are sent to the Information Commissioner, although employees often attempt to complain about it to employment tribunals as well. In extreme cases the Information Commissioner can serve enforcement notices and impose financial penalties.

Despite what employees often think, the Information Commissioner cannot award them compensation, although they could bring a court case seeking compensation for harm and distress arising out of failure.  

Sleep-in Payments Ruling

In contracts, Employment law, pay, Uncategorized on March 23, 2021 at 9:32 am

The Supreme Court has ruled that care workers are not entitled to national minimum wage for ‘sleep-in’ shifts. This follows appeals in the cases Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home).

The court referred to a recommendation first made in 1998 by the Low Pay Commission, and accepted by the government as part of the National Minimum Wage Regulations 1999, that sleep-in workers should receive an allowance and not the NMW unless they are awake for the purposes of working. The same recommendation was also included in the National Minimum Wage Regulations 2015.

It was however made clear that this ruling only applies to shifts where an employee is expected to sleep during their shift, which the claimants in this case were.

Covid-19 vaccination: What can an employer do if an employee refuses to have a vaccine?

In covid-19, Employment law, Equality on March 10, 2021 at 11:00 am

Most people will welcome the opportunity to be vaccinated against COVID-19, but there will be a minority who will be reluctant or refuse to have the vaccine. The reasons could be many and varied, including individuals who cannot have the vaccine (for example, on medical grounds), those who can have the vaccine but refuse (for example, on religious or spiritual grounds) and those who can have it but have concerns and are uncertain (for example, due to a fear of vaccinations generally).
 
The Health and Safety at Work Act 1974 obliges employers to take reasonable steps to reduce any workplace risks; this duty gives employers justification for encouraging their employees to be vaccinated to protect themselves and everyone else at the workplace. COVID-19 is also a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (known as RIDDOR) which strengthens employers’ encouragement that employees should agree to vaccination.
 
It may be prudent now for employers to begin planning for the wider rollout of the vaccine. Perhaps encourage concern staff with impartial, factual information or at least guide them towards it. Staff will need to be informed about the workplace controls measures and the impact and risks of COVID-19. Experience has shown that this needs to be repeated.
 
The press has reported that some employers want to make vaccination mandatory. One example Pimlico Plumbers (no strangers to the employment courts) stated that all new workers would have to receive or have received the vaccine. The phrase ‘no jab – no job’ was coined. Interviewed on Radio 5 the owner actually confirmed that he had no intention of firing anyone, or indeed enforcing the policy.
 
What we know for sure is that employers cannot forcibly vaccinate employees or potential employees. Mandatory vaccination is an intrusion on an employee’s body and would be an assault. More relevant in the workplace is forcing a vaccine may amount to indirect discrimination on the grounds of disability or religious or philosophical belief. Some employers would have a justification to act in that way, but this is not the answer in every case. The government has so far shown no intention of introducing legislation to make vaccines mandatory, but we may have to watch this space.
 
So, what if employees refuse vaccination? For the employer to discharge their health and safety duty, they may need to consider other steps. An employer could consider potential disciplinary proceedings for failure to follow a reasonable instruction in certain settings (such as health or care), but this approach is not without risk and any employer considering this should seek specific advice from us before doing so.
 
Can the employer insert a clause into the employment contracts for new employees? Existing employees can be asked to agree to a compulsory vaccination clause as a variation to their existing contracts of employment.  However, even if employees agree to vaccination in their original employment contract or a variation of it, employers still cannot physically enforce this as an individual’s consent is always required for any medical intervention. Employers enforcing a change without employees’ agreement would be in breach of contract and employees could resign and claim constructive unfair dismissal.
 
Failure to follow an employer’s reasonable instructions can lead to disciplinary processes and dismissal. Whether an instruction to have a COVID-19 vaccine is reasonable has not been tested in the tribunals and courts. As there is at least a risk of unfair dismissal, discrimination and other claims, employers should consider their position very carefully before moving towards disciplinary processes and dismissal. Being a test case as one of the first employers to dismiss on the grounds of vaccine refusal is likely to be time consuming and potentially expensive.
 
Every employment contract contains an implied term that employees must follow their employer’s reasonable instructions. Whether an instruction to be immunised is reasonable depends upon the facts of each case, for example the nature of the role, the numbers of clinically vulnerable colleagues, the size and layout and people contact in the workplace. For example, employers in a nursing home may be able to issue a reasonable instruction to employees to be vaccinated because refusal could put vulnerable people at risk. Employers in another sector such as accountancy, where it has been shown that work can be done effectively from home, may be in a weaker position and an instruction to be vaccinated may not be deemed reasonable.
 
This is clearly not an area without risk and organisations should ensure they have up to date risk assessments and policies in place. As always if you wish to discuss this topic further please contact your consultant. 

Coronavirus – Advice for employers

In absence, Employment law, government, pay, Uncategorized on March 4, 2020 at 1:38 pm

For our most up to date information see our webpage – https://www.robbryanassociates.org.uk/2020/03/12/coronavirus/

With the government preparing for widespread cases of the coronavirus(Covid-19), employers should monitor the official advice to maintain an up to date picture of the situation and best protect the health and safety of their staff.

Where can I find the official advice?
Government list of guidance
Government advice for businesses
NHS advice
Government action plan

What can employers do to minimise the risk in the workplace?
ACAS has produced a useful guide providing practical advice to help employers protect their staff. Good hygiene is key to preventing the spread of infection.
We suggest that you print the NHS guide out and pin to your noticeboard or another prominent place. You should also issue regular memos to circulate the latest official advice.
The government guide has advice for what do if someone in the workplace falls ill with symptoms linked to the virus or is diagnosed.
Employers should prepare an action plan which is ready to be put in place should there be an outbreak of the virus at work.

Sick Pay
If an employee has coronavirus:
Your usual sickness procedure and entitlement apply.

If an employee is advised to self-isolate:
If the employee has been advised by NHS111 or a doctor to self-isolate they should inform their employer immediately. If they are given written notice they are entitled to sick pay. The latest legal advice as of yesterday is that isolation without the illness does not qualify for SSP – although many are saying it would be good practice to pay. The Trade unions and others are seeking specific emergency laws to have a sick pay fund for those who wouldn’t normally be paid – they argue without this people will be motivated to attend the workplace with symptoms.
Some employees will be able to work from home while in isolation.

Latest news update Workers to get SSP from first day off https://www.bbc.co.uk/news/uk-51738837 (NB: this is the government’s intention – we await further detail)

Working from home
At present, there is no advice for workers to avoid travel in the UK but employers may want to consider in advance what provision there may be for working at home.

Travel abroad
As and when the virus becomes widespread, in some places travel and movements are likely to be more restricted.
If travel is for business purposes, consider if the meeting could take place via video conferencing instead.
If an employee is travelling for leisure we advise you to discuss with the employee their plans and pose the question regarding returning and self-isolation. You can agree in advance that should they need to self-isolate it would be unpaid authorised absence. It’s then an elective choice to go on holiday taking a risk or to cancel.

New Rights for Bereaved Parents

In Employment law on January 27, 2020 at 1:15 pm

The government has confirmed that parental bereavement leave will become a statutory right from April 2020.

Up until now, whether organisations provide time off work as bereavement leave when employees suffered the loss of a child, and any payment for this leave period, was an individual decision made within each business. The new legislation, also known as Jack’s Law following a campaign by bereaved mother Lucy Herd, will give a day one right to two weeks’ leave following the death of a child under the age of 18, or a stillbirth after 24 weeks of pregnancy.

Parents will be able to take the leave as two weeks or two one-week blocks. Those with 26 weeks continuous employment will be able to claim statutory pay which is expected to be in line with other family related pay. As of April, these rates will rise to £151.20.

There are still details to be confirmed including rules on eligibility, but the new regulations are expected to include:

  • birth parents
  • adoptive parents
  • legal guardians
  • those with court orders providing daily care responsibilities
  • foster parents (although it may not include emergency foster care)
  • kinship carers.

Employers should note that the introduction of statutory parental bereavement leave does not replace an employee’s right to time off for dependents.  The difference between these entitlements is that time off for dependants is intended to allow employees leave to deal with an unforeseen emergency only, such as the unexpected death of a child, whereas parental bereavement leave is to provide a length of time off work to allow parents to undergo the grieving process following their child’s death. The employer should also consider ongoing ways in which a bereaved parent can be supported once they return to work.

Action: these changes should be reflected in your next updates and revisions to your employment documents. When was the last time you updated yours? Contact Rob Bryan Associates on 01462 732444 for advice

Carers Rights Day – how can you support your employees who have caring responsibilities?

In contracts, Employment law, Equality on November 21, 2019 at 10:15 am

Thursday 21st November marks ‘Carers Rights Day’ – an opportunity to recognise all that carers do, as well as for employers to find out more about how to support carers in the workplace.

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Research by Carers UK and Age UK shows the importance of employers engaging with employees who are carers. One report found that 10 hours of caring per week can make it a significant challenge to stay in work. Research also tells us that:

  • 600 people a day leave the workforce to provide care for a loved one, whether that’s a spouse, parent, child or other dependant.
  • 5 million people juggle caring responsibilities with paid work.
  • 64% of those caring for parents are in the workforce. And the numbers are increasing as the UK population ages.

Those in their late thirties to fifties, known as the ‘sandwich generation’ may be balancing caring for elderly parents whilst also bringing up children and working. They are also likely to represent a higher proportion of those at the peak of their profession – talent that businesses want to retain.

According Carers UK, leading companies, such as Centrica, have demonstrated strong business benefits to supporting carers and have suggested that, cumulatively, UK companies could save up to £4.8 billion a year in unplanned absences and a further £3.4 billion in improved employee retention by adopting flexible working policies to support those with caring responsibilities.

How carer-friendly is your business? Do you have policies in place to support those who wish to more flexibly?

For short term temporary arrangements an employee may seek time off for dependants. A dependant of an employee is defined in the legislation as one of the following:

  • husband or wife or partner, child, parent, someone else who is regarded as part of the family and lives with an employee (but not tenants, boarders, lodgers or employees)
  • anyone else who is reliant on an employee in emergency situations.

The length of this leave is meant to be short and no longer than two days in most situations. It can be longer in some circumstances. An employer is not permitted to require an employee who has requested or taken time off for dependants to rearrange their working hours or make up the time that has been lost. What is reasonable time of will depend on the specific circumstances. An employment tribunal case considered an employee who had taken a total of seven days spanning six instances of absence within a 12-month period was reasonable.

Trial periods, temporary changes or even career breaks / sabbaticals in support of a retaining a skilled and knowledgeable worker who would otherwise be lost to the business could be a possibility. However, employers should seek advice from a consultant if you intend to amend terms or have a break in the relationship as continuity of employment needs to be specifically addressed as well as arrangements to return back to previous terms and conditions if that is the intention.

For permanent changes to the working relationship an employee can make a request for flexible working.

In June 2014 changes to the flexible working arrangements broaden to all employees. Previously eligibility was restricted for caring for a child or an adult in need of care. The first arrangements for flexible working in 2002 were restricted only to children under 6 years of disabled children up to 18 years of age. There was no provision for adult care. Employees, part time or full time, with 26 weeks of service, have the right to request a flexible working arrangement.

The flexibility is commonly around times of work, or days of work; however, this can also include the type or pattern of work, or even the place or work. The employer has a duty to consider the request in a reasonable manner and respond in writing as soon as practically possible no later than three months after a formal request. An employee making a request has protection from any dismissal or detriment due to their request being made.

If you would like help reviewing your employment policies, please get in touch – 01462 732444  www.robbryanassociates.org.uk 

For further reference: https://www.employersforcarers.org/resources/research/item/1460-juggling-work-and-unpaid-care-a-growing-issue