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Archive for the ‘Equality’ Category

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

In absence, business principles, contracts, Employment law, Equality, family, Uncategorized on November 25, 2021 at 11:25 am
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Thursday 25th 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.

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. Their recent research in the light of the Covid-19 pandemic also tells us that:

  • Four in five unpaid carers are providing more care for relatives
  • 78% reported that the needs of the person they care for have increased during the pandemic
  • Two thirds (67%) worried about how they will cope through further lockdowns or local restrictions.

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 to 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.

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 off will depend on the specific circumstances.

Trial periods, temporary changes, or even career breaks / sabbaticals, in support of retaining a skilled and knowledgeable worker who would otherwise be lost to the business could be a possibility. However, employers should seek advice if they 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.

Employees, part time or full time, with 26 weeks of service, have the right to request a flexible working arrangement. However, currently, the Government has launched a consultation into changing current flexible working legislation, with the proposal to make the right to request flexible working from day one of employment.

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

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.  

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. 

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

New mothers to get extended protection against redundancy

In Employment law, Equality, government, maternity on January 31, 2019 at 1:26 pm

copyof1in9womensaytheywerefired2cmaderedundantorforcedoutofjobOn 25th January 2019 the government launched a 10-week consultation to examine the proposal that legal protection against redundancy should be extended to 6 months for new mothers returning to work.

Under the Equality Act, job applicants or employees must not be treated unfairly or disadvantaged due to pregnancy or maternity. However, research by the Department for Business, Energy and Industrial Strategy (BEIS) found that 1 in 9 women (11%) said that they had been fired or made redundant on their return to work; or were treated so badly they felt they had no option but to leave.

Currently, if redundancies are being made, those on maternity or shared parental leave have to be offered a ‘suitable alternative’ where one is available, giving these employees priority over others who are also at risk of redundancy. However, this provision ends when an individual returns to work.

The proposed legislation will extend this protection for new mothers to six months after return to work. The consultation may also consider applying this right to others, for example men on shared parental leave and those on adoption leave.

While these proposals have been welcomed, advocacy groups have said that the underlying issues remain and more can be done to support parents returning to work and prevent working mothers being discriminated against.

 

If you would like guidance on your Pregnancy, Maternity or Family Friendly policies and procedures in your workplace, contact us at Rob Bryan Associates Limited Main Office: 01462 732444  www.robbryanassociates.org.uk