HR Newsletter No 161 – Vento Guidelines Annual Update

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Author: Jackie Bolton

The President of the Employment Tribunals has issued the annual update to the Vento guidelines, setting out the bands of awards for injury to feelings, payable in cases of discrimination at work, adjusted for inflation.

The new bands are: –

  • lower band: £1,200 to £11,700 (less serious cases)
  • middle band: £11,700 to £35,200
  • upper band: £35,200 to £58,700 (the most serious cases)

Awards in the most exceptional cases may exceed £58,700. These updated figures apply in respect of claims presented on or after 6 April 2024.

The lower band applies to ‘less serious cases’ where the act of discrimination is a one-off or isolated occurrence. The middle band applies to serious cases that do not fall within the higher band. The higher band applies to the most serious cases, for example, where there has been a lengthy campaign of discrimination and/or harassment.

Employment Tribunals have great flexibility to fix the compensation at what is fair and just in each case. They will consider all the evidence, including the claimant’s evidence about the impact of the discrimination on them, before deciding an appropriate award.

While the tribunal will assess the award of damages for injury to feelings in an objective way, the perception and the individual reaction of the claimant will be an important factor for the court to consider. The more upsetting the conduct is to the individual, the more seriously the discrimination is likely to be viewed, and the higher the award for injury to feelings. Where a one-off act of discrimination is particularly humiliating or serious, and the victim suffers serious consequences as a result, an award in the higher bands could be justified. A tribunal would require quite detailed evidence about the seriousness, before it would be prepared to award a high figure.

Claimants sometimes have unrealistic ideas about how much money they will be awarded.  Cases that make the news are there precisely because they are so unusual. A tribunal will take a measured and methodical approach when they assess how much to award, but it is hardly a science. There is little in the way of hard evidence about what is normal, but we believe that most awards fall into the lower category.

Maximum, Median and Average Awards for Unfair Dismissal and Discrimination 2022/23

 

Maximum Award

 Median Award

Average Award
Unfair Dismissal

£184,200

 £6,201

£11,914
Race Discrimination

£452,474

 £11,400

£23,070
Sex Discrimination

£995,128

 £11,177

£37,607
Disability Discrimination

£1,767,869

 £15,634

£45,435
Religion & Belief Discrimination

£92,039

 £9,239

£19,332
Age Discrimination

£84,723

 £5,675

£14,210
Sexual Orientation Discrimination

£82,168

 £26,247

£31,623

These awards will include compensation for loss of employment which generally makes up a large proportion of the total amount, with injury to feelings being on top.

An award for injury to feelings is meant to reflect how upset the employer made the claimant feel, not to punish the employer for how badly they have behaved. Fair treatment is a moral and legal duty, and employers have a responsibility to investigate and respond to any issue they become aware of, as well as taking all reasonable measures to protect employees from harassment and discrimination.

Having strong and unambiguous equal opportunity and dignity at work policies are powerful tools for preventing discrimination and harassment in the workplace. In addition to developing the right policies for their workplace, employers also need to make sure that everyone understands the policy (evidence is shown by training records) and that it operates effectively in practice. Policies and practices that amount to indirect racial discrimination may be justified only when the policy or practice is a proportionate way of achieving a legitimate business aim.

Actions:

  • Educate all your workers about discrimination – this is done through meaningful training.
  • Encourage workers to respect each other’s differences.
  • Respond to any evidence or complaints of inappropriate behaviour.
  • Deal with any complaints of discrimination promptly and confidentially.

It is essential for employers to be proactive and prevent discrimination from occurring in the first place. Claims are difficult and expensive to defend, so best avoided.

The Equality and Human Rights Commission (EHRC) has confirmed that it will be updating its existing Code of Practice and technical guidance on ‘Sexual harassment and harassment at work’ to address the new mandatory duty that will apply to employers from October 2024, to take ‘reasonable steps’ to prevent sexual harassment in the workplace.

In summary, the expectation in law will be in the future that employers must assess the risk of harassment, take reasonable preventative action to reduce such risks, and deal effectively with workforce complaints of harassment.

BackupHR can deliver a full day in-person training course on Dignity at Work (Harassment and Bullying) which is suitable for Managers, Supervisors and/or Team Leaders with people management responsibilities, and/or a half day briefing session suitable for all types of employees. In providing this learning, clients will be able to demonstrate a range of reasonable steps have been taken to educate the workforce on its Equality and Dignity at Work policies, together with communicating out that discrimination, harassment and bulling is not acceptable behaviour at work.

If this is something you would be interested in running within your organisation, please contact Jackie Bolton on 01480 677981 or drop her an email to jackie@backuphr.com for more information.

 

 

 

You are welcome to raise any concerns with our Consultant team, who would be pleased to advise you on any element of the issues arising from this newsletter.

Statutory Figures

In addition to the previously published statutory pay increases for 2024 (refer to our Newsletter No 158), the annual increase in compensation limits has been publicised. The limits apply to dismissals, including redundancies, occurring on or after 6th April 2024.

  • £700.00 – the maximum amount of a week’s pay for calculating statutory redundancy pay and the basic award; (up from £643.00);
  • £21,000.00 – the maximum statutory redundancy payment or basic award, i.e. 30 weeks (up from £19,290);
  • £115,115.00 – the maximum compensatory award which can be made for unfair dismissal (up from £105,707.00) or one-year’s gross pay whichever is the lower;

These increases mean that the maximum total unfair dismissal award is now £136,115.00; although uplifts can add a further 25%.

Employees may be entitled to receive guarantee payments for up to five days of lay off in any three-month period.  The maximum amount of such a Statutory Guarantee Payment will increase to £38.00 (up from £35.00) for any one day.

The new rates take effect where the ‘appropriate date’ for the cause of action (such as the date of termination in an unfair dismissal claim) falls on or after 6th April 2024.

 

 

Clients are welcome to raise any concerns with our team of Consultants, who would be pleased to advise you on any element of the issues arising from this newsletter.  The information contained within this newsletter was correct at the time of publishing.

Paternity leave has been around for a long time, since 2002, but the Government will be shortly introducing new rules that will make it both easier to take and more flexible.

Up until now, the intention of an employee (they could be a father or a partner in this context) to take paternity leave had to be formally lodged with their employer on or before the 15th week before the Expected Week of Childbirth (EWC).  This is also known as the Qualifying Week (QW).  The employee had a stark choice, take a block of one week or two continuous weeks sometime during the first eight weeks after birth, or the adoption matching date.  And for some reason, the leave could not be split into two separate weeks.

These new rules reduce the notification required to 28 days (or 7 days for adoption), and allow this leave to be taken either as a two-week block, or two separate one-week blocks, any time in the first year after birth or adoption. The rules rather intriguingly view adoption as more unpredictable than the birth of a child. Parents of early or late babies may well disagree!

These regulations are expected to come into force on 8th March 2024, though they will only apply to babies whose EWC begins after 6th April 2024. And, for adoption purposes, whose expected date of placement for adoption, or when the adoption comes from abroad, when the expected date of entry into Great Britain for adoption, is on or after that date.

The rules are still quite rigid however, and the employee has to state not the exact date they wish to take leave, but how long after the birth or adoption they wish to take it. Any changes to this schedule should also be communicated at least 28 days in advance.

Any parent out there will tell you the arrival of the child is not necessarily something you can plan for in advance. Nor is the need for leave so precise that you can schedule it effectively before it happens.

Nevertheless, these rules will make it slightly easier for parents to prepare, while still giving employers some warning when employees are likely to be away. Please note that while holiday requests can be turned down, normally for good business reasons, paternity requests cannot, providing they have been notified in the appropriate way.

These are draft regulations, but employers need to be aware of the impending changes to paternity leave notification and, we are also waiting on other possible changes to paternity pay, which as yet have not been communicated out.

BackupHR Training

Getting the best from your team requires skill and dedication. Our Management Training Programme for 2024 covers a toolbox of strategies and essential practical skills, designed to equip those who are new to Management, or to offer further development or a refresher of existing skills for more experienced Managers.

Core Skills for Managing People: 24th April 2024 – Park Farm Country Hotel, Hethersett, Norwich and 17th October 2024 – Quy Mill Hotel & Spa, Quy, Cambridge

Handling Difficult Situations; 21st November 2024 – Park Farm Country Hotel, Hethersett, Norwich

Contact Jackie by e-mail: jackie@backuphr.com or 01480 677981 and visit www.backuphr.com for more information on how our training course can benefit you and how to book.

 

 

Our Consultant Team would be pleased to advise you on any element of the issues arising from this newsletter.

Introduction

Effective from 1st October 2023, several amendments to the Fire Safety Order (FSO) have been enacted. Initiated by s.156 of the Building Safety Act 2002, the changes target enhancing fire safety across buildings governed by the FSO. While these amendments might seem minimal, they necessitate that Responsible Persons under the FSO be proactive to ensure full compliance with the law.

Background

In the aftermath of the tragic Grenfell fire and consequential inquiries, the UK Government has been progressively revising fire safety regulations. The FSO amendments, specifically pertinent to England and Wales, are a part of this movement, realised via the Fire Safety Act 2021 and Building Safety Act 2022.

What Do These Changes Mean?

The newly enforced laws pertain to all non-domestic premises such as workplaces, communal areas in multi-occupied residential buildings, among others. It does not cover individual domestic premises.

Responsible Persons must now adhere to the following stipulations:

  • Maintain a comprehensive record of their fire risk assessment.
  • Document the identity of the person or organisation responsible for undertaking or reviewing the fire risk assessment.
  • Identify and record the relevant details pertaining to managing fire safety arrangements in the premises.
  • Update and maintain contact details, including a UK based address, and disclosing details and co-operating with other organisations’ Responsible Persons who are in the same shared premises.
  • Upon departure from a building, share essential fire safety details with incoming Responsible Persons.

Implications

The main essence of the recent changes is the enhancement of collaboration among Responsible Persons. This collaboration may encompass other businesses, landlords, or managing agents, often playing crucial roles in a building’s safety.

A new obligation requires all involved parties to understand and record their roles and responsibilities, ensuring they are in synchrony with the overarching safety measures of the entire building. The Government underlines the importance of this being a written record, accessible when required.

Moreover, whenever there is a change in the Responsible Person – be it due to cessation of a business, acquisition, or property sale – the incoming party must be presented with all pertinent fire safety details.

Conclusion

The underlying intent of these revisions is a comprehensive, whole-building approach to fire safety. Ensuring that every stakeholder, from a single tenant to a managing agency, is aligned and informed is a significant step towards more robust fire safety measures in the UK.

For our clients, we recommend a review of your current fire safety risk assessment and practices to guarantee meeting the new regulations.

 

The BackupHR team would be pleased to advise you on any element of the issues arising from this newsletter.

The Health and Safety Executive (HSE) of Great Britain’s annual statistics on work-related fatalities, ill health and workplace injuries for the period 2022/23 offer a comprehensive overview of the current state of workplace health and safety, revealing both the human and economic costs associated with work-related fatalities, illnesses and injuries.

There were 135 work-related fatalities and approximately 561,000 non-fatal workplace injuries reported in the same period. Around a quarter of the deaths were to workers aged 60 and over, which is similar to the profile of earlier years. The three main causes of fatal injury are falls from a height, struck by moving (including flying/falling) objects, or struck by moving vehicle, which between them continue to account for over half of annual fatal injuries. 68 members of the public were also killed in work-related accidents.  82% of fatal injuries occur in five industry sectors: – construction; agriculture; motor retail repair; accommodation; and food services. These same sectors, alongside forestry, also had statistically significant higher workplace non-fatal injury rates as well. If one looks at the numbers working in different employment sectors, then the highest prevalence of fatalities is in agriculture, forestry and fishing.

Here is a quick summary of other HSE statistics:

  • Prevalence of Work-Related Ill Health: The report states that approximately 1.8 million workers suffered from work-related ill health (both new and long-standing cases). This figure indicates a significant rise compared to pre-pandemic levels. 13,000 deaths per year are estimated to be linked with past exposure at work, primarily to chemicals or dust.
  • Stress, Depression, and Anxiety: Among these cases, around 875,000 incidents were related to work-related stress, depression, or anxiety, marking an increase from the pre-pandemic period. This includes 338,000 new cases for 2022/23.
  • Work-related musculoskeletal disorders: Prior to the pandemic, the rate of self-reported work-related musculoskeletal disorders showed a generally downward trend. The current rate is still similar to the 2018/19 pre-coronavirus level.  Industries with higher than average rates are not surprisingly in administration and support services activities, construction and human health/social work.
  • Gender and Age Disparities: Females reported significantly higher rates of work-related stress, depression, or anxiety compared to males, particularly in the age group of 25-34.
  • Lost Working Days: An estimated 35.2 million working days were lost due to work-related ill health or injury, with 17.1 million days specifically attributed to stress, depression, or anxiety.
  • Occupational Lung Disease: The report highlighted 12,000 lung disease deaths linked to past occupational exposures, including 2,268 deaths due to mesothelioma. Prior to the coronavirus pandemic, the rate of annual new cases of occupational asthma seen by chest physicians had been increasing.
  • Sector-Specific Impacts: Human health/social work, public administration/defence and education have had the highest rates of work-related ill health and non-fatal injuries. These are the exact same sectors that were most affected by work-related stress, depression, or anxiety.

The HSE conducted over 230 fatal and 5,500 non-fatal accident investigations, completed 216 criminal prosecutions with a 94% conviction rate, and carried out over 16,800 proactive inspections.

IOSH, and nearly every other Health and Safety expert, advocates for a prevention-first approach, emphasising the need for psychosocial risk management strategies and a people-focused work culture.

In conclusion, the HSE’s 2022/23 statistics underscore a persistent issue of work-related ill-health, particularly stress, depression and anxiety, alongside the substantial economic burden it places on the economy. The data calls for continued and enhanced efforts in workplace health and safety management, with a particular focus on mental health and preventative measures.

 

The BackupHR team would be pleased to advise you on any element of the issues arising from this newsletter.

There are some important changes to statutory rates of pay that the Government have already announced, to take effect in 2024.

National Minimum/Living Wage Rate Increases & Accommodation Rate

The National Living Wage is to rise by 10% which is the biggest cash increase ever. This will also now apply to all workers aged 21 and over for the first time (previously applying only to those aged 23 and over). It will go from £10.42 to £11.44 per hour.

At the same time, the National Minimum Wage (NMW) rates will be increased as follows:

  • from £7.49 to £8.60 per hour for 18 to 20-year olds;
  • from £5.28 to £6.40 per hour for 16 & 17-year olds; and
  • from £5.28 to £6.40 per hour for apprentices;

Accommodation Rate

If you provide some form of staff housing as part of the contractual arrangements, then the daily accommodation offset will apply. This will change from the current rate of £9.10 per day to £9.99.

The effect of accommodation rates on the National Minimum Wage or National Living Wage depends on how much an employer actually charges for accommodation.  It’s calculated by ‘pay period’, the frequency interval that someone is being paid. If the accommodation is free, it still affects the minimum wage.   It does not matter if the cost of the accommodation is taken from the worker’s wages beforehand, or if the worker pays the cost after they get their wages.

Increased Statutory Rates

The rate for 2024/25 for Statutory Maternity (SMP), Paternity (SPP), Adoption (SAP), Parental Bereavement (SPBP) and Shared Parental (SShPP) Pay are set to increase from £172.48 to £184.03 per week.

Additionally, the rate of Statutory Sick Pay (SSP) is also set to increase from £109.40 to £116.75 per week.

The rates for Statutory Redundancy Pay, Statutory Guarantee Pay, and Tribunal Awards are not yet announced.  We will send an update as soon as the new rates are published. They are usually expected in March.

Implementation

Exact dates of implementation are still to be confirmed, and it is worth noting that they do not all usually increase on the same date. It is expected that SSP will increase on 6th April 2024, with SMP, SPP etc. increasing on 8th April 2024 at the start of the new tax year. The NLW and NMW rates go up from 1st April 2024.

January Changes to Existing Rights

A number of substantive provisions of the Retained EU Law (Revocation and Reform) Act 2023 (known as REULA) have now become law, changing the status of various aspects of retained EU law under the European Union (Withdrawal) Act 2018, or for short, EU(W)A.

S.4 EU(W)A, that directly preserved rights arising under EU Treaties and Directives, has now been repealed, although it is important to note that there are some transitional provisions which preserve its effect in relation to facts occurring before the end of 2023. This means that claims relying on directly effective rights preserved under S.4 EU(W)A can still be brought so long as they rely on events or actions taking place before the end of 2023. Such claims can still invoke the general principles of EU law and the supremacy of EU law to the same extent as was possible under the EU(W)A as originally enacted.

S.5 REULA, which renames ‘retained EU law’ as ‘assimilated law’, is also now fully in force. However, not all of REULA has yet to come into effect, such as s.6 REULA, which will give Courts greater discretion to depart from retained EU case law.

The Equality Act 2010 (Amendments) Regulations 2023 also came into force on 1st January 2024, which include extended protection from pregnancy and maternity discrimination, the right to claim indirect discrimination by association, the ‘single source’ test for establishing an equal pay comparison, and a definition of disability that considers a person’s ability to participate in working life on an equal basis with other workers.

The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 amend the Working Time Regulations 1998 to preserve the entitlement under EU law to be paid ‘normal remuneration’ during annual leave, also came into force on 1st January 2024. Normal remuneration, in a nutshell, means that if people receive on almost every pay interval additional earnings beyond basic pay, such as overtime, shift premium, commission or bonuses, then this will be deemed normal remuneration for the purposes of calculating holiday pay.  This is also known as average holiday pay, based on the previous 52 weeks earnings.  This is actually not really new, as English case law has established this for some time, but the Government has now formally enshrined it into Statute.

Future Legal Rights

A number of Bills giving new rights are on their way to becoming enforceable regulations. However, due to the nature of the legal parliamentary process, it is not possible to say with certainty when this will happen this year, or what the details of these new rights will be, as they may still be changed. Nevertheless, it is important to be aware of what might be coming.

Protection from Redundancy (Pregnancy and Family Leave) Act 2023

Currently, employees absent from work on maternity, adoption or shared parental leave have the right to be offered any suitable alternative employment before their colleagues during a redundancy process. This is what is known as a “protected period”. With new secondary law coming into place this year we now know that for leave that ends on or after 6th April 2024, this protected period will be extended.

Pregnancy and Maternity Leave

From the time the employee discloses the pregnancy, a protected period applies. This will end on the day statutory maternity leave starts, and a further protection period is applied for a period of 18 months after the expected week of childbirth (or 18 months after the exact date of childbirth, if the employee has notified their employer of the day childbirth occurred before the end of the statutory maternity period). Where the employee is not entitled to maternity leave, such as in the case of a miscarriage, the protection period ends two weeks after the pregnancy ended.

Shared Parental Leave

The protected period begins from when the child is born or placed with the employee for adoption, and will be extended to 18 months after. To be eligible for the extended protection period, the employee must have taken six or more consecutive weeks of shared parental leave. They also must not have taken maternity or adoption leave.

Where less than six consecutive weeks of leave is taken, the protected period will continue as is currently the case, i.e. during the leave only.

Adoption Leave

The protected period runs from when the child is placed for adoption with the employee and is extended to 18 months after that.

Employment Relations (Flexible Working) Act 2023

We are waiting on ACAS to finalise its updated Code of Practice on handling requests for flexible working. Additional ACAS guidance on flexible working is also expected to be updated.

Secondary legislation will be implemented to set out the first of five changes that need to be put down in regulation to implement the 2023 Act.

The first regulation confirms that for any requests made on or after 6th April 2024, the employee making the request does not need to have any service with the employer. Essentially, this means the right to request flexible working will become a day one right. Currently absent are the other four proposed changes to flexible working rules. When they come, which is likely to be from 6th April 2024, they will be:

  • reduction of current reasonable timeline to deal with requests from three months to two months;
  • removal of requirement for employee to set out the impact of their requested arrangements;
  • introduction of the requirement for employers to consult with an employee before refusing a request;
  • increase in the number of statutory requests permitted per 12 months from one to two. Interestingly, the right to appeal an unsuccessful flexible working request appears to have been removed.

Carer’s Leave Regulations 2024

This introduces a new right to one week’s unpaid time off in any 12-month period to provide or arrange care for a dependant with a long-term care need.

This Regulation is still subject to parliamentary approval, which is thought will be passed and if so, this will come into force on 6th April 2024.

These Regulations provide that from the first day of employment, employees with a dependant with a long-term care need that need to take time off to care, or arrange it, for that dependant are able to do so, subject to a maximum of one week per year.

Unlike other forms of family leave, which must be taken in blocks, such as paternity or parental leave (unless the child is disabled), carers can take this leave either consecutively or separately in half or full days. In order to take the leave, they are required give written notice, which under the Regulations will need to be either twice the length of the time being requested, or three days, whichever is the longest.

Similar to parental leave, employers will be able to postpone a request for carer’s leave if at the time it would unduly disrupt operations. If declining the request, the employer must give a written explanation as to why this postponement is necessary. Nevertheless, the employee will need to be allowed to take the leave within one month of the original start date of the leave, following consultation with the employee as to a more convenient date.

This is likely to be a busy year for employment law changes, and we will be updating client Handbooks once we have a clear understanding of what these changes will mean in practice.

 

Clients are welcome to raise any concerns with our Consultant Team, who would be pleased to advise you on any element of the issues arising from this newsletter.

Blue Monday is this year the 15th January 2024, i.e. today, so it’s a useful trigger to remind Managers to be far more aware of issues related to employee mental health.

Blue Monday, a concept coined in 2005, is considered the most depressing and challenging day of the year for mental wellbeing, attributed to factors such as gloomy weather, post-holiday blues, and financial strains. While it’s not scientifically proven, it symbolises a period where people may feel more down than usual and offers a timely reminder of the importance of supporting mental health in the workplace.

Why SMEs Need to Act

In a rapidly changing world, mental health has become a crucial aspect of employee welfare. According to 2023 survey findings from the CIPD, Mental Ill Health was the 3rd largest causes of short-term absence (39%) and was the leading reason (63%) for long-term sickness absence in those surveyed.

For SMEs, the impact of poor mental health and any associated sickness absence can be more pronounced, affecting productivity, employee engagement, and overall workplace morale. All of which will have an impact on the bottom-line.

Actionable Strategies for SMEs

For many Managers it can seem difficult to know where to start. The key is to do something, no matter how small, so here are some ways to kick start your business to a healthier 2024:

  • Promote Open Communication: Create a culture where employees feel comfortable discussing their mental health. Create a safe space where employees feel comfortable sharing their concerns without fear of judgment or repercussions. This can be facilitated through team meetings, one-to-one check-ins, or anonymous employee surveys or informal feedback.
  • Regular Check-ins: Make mental health check-ins a regular part of your Management protocol, and talk about wellbeing. A good introduction is to volunteer some information about how you are feeling first, as it shows some of your own vulnerability (and humanity), as then invites the employee in turn to put forward how they are feeling as well. This ensures continuous support and shows employees that you treat their wellbeing as a priority.
  • Promote a Healthy Work Environment: Foster a positive work culture where achievements are recognised, and failures are seen as learning opportunities. Encourage regular breaks, provide a comfortable work setting, and ensure workloads are realistic and manageable.
  • Flexible Working Options: Recognise the stressors of modern life and offer flexible working arrangements where possible. This can include flexible hours, the option to work from home, or compressed hours. Such measures can significantly reduce stress and improve work-life balance.
  • Training and Resources: Provide training for Managers and Team Leaders on recognising signs of mental distress, and how to approach these conversations sensitively. You could also reach out and establish partnerships with local mental health organisations for support. Consider training and appointing a Mental Health First Aider in your workplace.
  • Mental Health Education: Share information to your staff about mental health services available, such as counselling or employee assistance programmes. Organise workshops or seminars on mental health awareness. Knowledge and understanding can significantly reduce stigma and encourage employees to seek help when needed.
  • Wellness Activities: Promote physical wellbeing as a way to enhance mental health. Initiatives could include organising group activities, or providing gym memberships at a discounted rate. Organise activities or provide resources that focus on mental health. This might include simple initiatives like a ‘walk and talk’ lunch break, that can make a real difference.
  • Recognise and Reward: Acknowledge the efforts of your employees. A little recognition can go a long way in boosting morale and mental wellbeing.
  • Personal Development Opportunities: Offer opportunities for personal and professional growth. Employees who feel they are developing their skills and careers are more likely to be engaged and have higher job satisfaction.
  • Lead by Example: Leadership should openly prioritise their own mental health and wellbeing. When leaders model healthy work-life balance and self-care, it sets a positive tone for the entire organisation.

Conclusion

For SMEs, it’s essential to remember that the wellbeing of your employees directly impacts the health of your organisation.

During this week, consider taking one of the strategies mentioned in this article to support and promote positive mental health in your workplace. By taking proactive steps, not only can you support your employees through challenging times, but you can also foster a more positive, productive, and supportive workplace environment all year-round.

BackupHR Training

Getting the best from your team requires skill and dedication. Supporting wellbeing at work is just one way that Managers contribute towards the effectiveness of your staff.

Our Management Training Programme for 2024 covers a toolbox of strategies and essential practical skills, designed to equip those who are new to Management, or to offer further development or a refresher of existing skills for more experienced Managers.

Delivering Bad News: 7th February 2024 – Quy Mill Hotel & Spa, Quy, Cambridge

Core Skills for Managing People: 24th April 2024 – Park Farm Country Hotel, Hethersett, Norwich and 17th October 2024 – Quy Mill Hotel & Spa, Quy, Cambridge

Handling Difficult Situations; 21st November 2024 – Park Farm Country Hotel, Hethersett, Norwich

Contact Jackie today by e-mail: jackie@backuphr.com or 01480 677981 and visit www.backuphr.com for more information on how our training course can benefit you and how to book.

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

Has an employee ever said something they don’t mean in anger or frustration? Or said they’ll resign, when everybody knows they don’t mean it?

And, have you ever been tempted to take it as a perfect opportunity to accept their resignation? Or have you ever said “you’re fired” but relented quickly after you calmed down?

These are not uncommon situations. And, we probably all know of employees who threaten to resign on a weekly basis. But a recent case, Omar v Epping Forest District Citizens Advice has given some real clarity on how to treat such situations.

It is important as it comes from an Employment Tribunal Appeal (EAT), and is likely to set a clear legal precedent for future cases. The real lesson from the case is that if it doesn’t look like a resignation, then you probably can’t treat it as such. Likewise, the employee can’t treat as unfair dismissal something said in the heat of the moment, that was clearly not meant.

The case revolves around a claimant, Omar, who resigned during a tense interaction with his Manager, and subsequently attempted to retract his resignation. He claimed that his decision was made impulsively in the ‘heat of the moment.’

Despite this attempt to retract, his employment was terminated, leading Omar to file for Unfair Dismissal. Initially, the Tribunal sided with the employer, stating that Omar had indeed resigned. However, this decision was appealed.

The EAT found the Tribunal’s reasoning to be flawed, and sent the case back to a new Tribunal for reconsideration. So, while it has not said Omar was unfairly dismissed, it has provided significant guidance on how to interpret ‘heat of the moment’ resignations (and dismissals).

This guidance is crucial for both employers and employees to understand the legal implications of impulsive decisions or outbursts that are made under duress or in a highly emotional state.

Key Points:

  • Irrevocability of Resignation: First of all, once a resignation is properly and effectively given, it cannot be unilaterally withdrawn. Once you have genuinely resigned or dismissed someone, you cannot retract it unless the other party agrees.
  • Objective Assessment of Resignation Words: Resignation statements should be evaluated objectively, considering all circumstances of the case. Crucially, this includes the test; would a “reasonable bystander” interpret this as a genuine resignation or dismissal?
  • Importance of Context and Reasonable Bystander’s Perspective: The context surrounding the resignation, including factors influencing how the language used would be understood by a reasonable bystander, is crucial. This might include the subjective understanding of the recipient, but it is not the sole deciding factor.
  • Clarity of Intention to Resign: The resignation must be clear and unambiguous. It’s insufficient if the party only expresses an intention to resign in the future. The recipient must understand that the speaker is actually resigning at that moment, and it must appear ‘seriously meant’ or ‘conscious and rational’ from a reasonable bystander’s perspective.
  • Assessment of Intention and Subsequent Actions: The Tribunal must assess whether the words of resignation appeared to be ‘really intended’ at the time they were said. Post-resignation actions are relevant but become less significant over time, potentially indicating a change of mind rather than the original intention.

The EAT’s guidance in Omar v Epping Forest District Citizens Advice provides a comprehensive framework for both employers and employees to understand and navigate the complexities surrounding ‘heat of the moment’ resignations and their legal consequences.

It might appear to be the perfect opportunity to accept such a resignation from an awkward character, but be very careful. The background, the situation and the tone, as well as the crucial question “Did they really mean it?” have to be asked.

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

There have been a lot of articles in the press recently around the subject of holiday pay.

Many have covered a very important Supreme Court case, Harpur Trust v Brazel 2022, which essentially threw the whole subject of holiday pay, especially for “variable” or “irregular” employees, into a state of chaos.

In fact, so much chaos that the Government has reacted very quickly with new regulations that essentially overrule the decision in that case.

But what has not been so widely covered is that while the regulations come into force on 1st January 2024, they will not apply to anyone whose holiday year starts before 1st April 2024, in other words four months later.

So much of the immediate editorial that was produced has put employers into a flat spin on how to treat employees who fall between 2023 and 2024 in terms of their holiday year. So, employers can relax, if that is the right word, safe in the knowledge that we will be briefing them fully on holiday pay in the New Year, in preparation for their next full holiday year. If any organisation has a holiday year that starts on 1st January 2024, they will have a full year to prepare, as they will not have to implement any changes until January 2025.

So, all of your payroll staff can go away for the Christmas break safe in the knowledge that the model created by Harpur v Brazel will continue for some time yet, but at least they have some sort of idea of what they are doing.

The new rules, which are much simpler, will not come into force for at least four months. We will write more fully about what to do with holiday pay for workers that work variably or irregularly in the New Year.  We will also cover this topic on our next free Webinar on Thursday, 18th January at 10.50 a.m., so please make sure you join us then.

 

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

Since the pandemic, this feels like the first year when we are almost back to normal. And, for many employers this could be the first time they have held any event to mark the Festive Season since 2019.

So, it is worth reminding staff what is expected of them in terms of behaviour. Organisations have to lay down some ground rules, or else someone could misbehave, let themselves or the organisation down, and even lay themselves open to disciplinary action.

And, even if the pandemic feels as if it is over, you will still need to do a proper risk assessment, identifying the problems, risks and the safest way to operate, especially if you have some staff who are still vulnerable.

It is still work

Even some private social gatherings, if they are identifiable as members of the organisation, can fall under the employer’s rules, and the employer can even be held responsible for the (mis)conduct of their employees.

So, just because a Christmas party takes place outside of work hours, away from their premises, it does not mean that any misconduct falls outside of the employer’s control. And, if it is the employer who has organised it, the event will almost certainly be classed as ‘work’, so at least a modicum of responsible behaviour will be required.

If Management are going to attend, however, it is even more legitimate to expect employees to be on their best behaviour. Such a situation means that any transgressions can be treated more harshly, simply because any inappropriate activity is likely to be more damaging to the organisation’s interests.

The most common misconduct issues we have to deal with are alcohol-related. While employers might accept some level of intoxication, they need to act if drunken behaviour is damaging to business interests, whether as a result of harassment or violence to a co-worker or a third party, or even simply by harming the organisation’s reputation.

If the decision is taken to dismiss an employee for drunken misconduct, Employment Tribunals will always be more critical if employers or Managers have contributed to that employee’s intoxication, either by providing them with alcohol themselves, or granting them the use of a free bar.

But the danger is that the relaxed nature of an office party can also lead to actual occurrences of harassment, or even violence. When investigating complaints, drunkenness or high-spirits should never be considered a sufficient excuse for inappropriate behaviour, or as evidence that the victim of alleged harassment was a willing participant.

And, do not forget third parties. Serving staff or, more importantly, entertainers. Any harassment by them, a racist comedian would be the obvious example, could be problematic and laid at the employer’s door.

Such matters should always be evaluated with a sober mind in the cold light of day, to ensure that they are dealt with in a fair and reasonable manner, and in full compliance with the organisation’s internal policies and procedures.

After the party

Finally, even when the party is over, there are still some important issues to consider. In arranging the event and providing the alcohol, employers will be seen to shoulder some of the responsibility for the outcome.

Therefore, it may be prudent to arrange suitable transport in order to take home any revellers who might be the worse for wear, or just close to/over the legal driving limit. Responsible behaviour here could range from making sure everyone is aware of the telephone number of local taxi firms, up to going the whole hog and providing all employees with transport on minibuses.

Of course, the fact that an intoxicated employee has managed to find their way home is no guarantee that they will turn up for work the next day.  As a result, employers should always clarify when staff will be expected to arrive in the office the following morning, particularly if the party is held on a weeknight. Any unauthorised absence can then be addressed using the Attendance Management, Absence and Sickness policy.

In summary then, if an employer wants to have a stress-free Christmas party season, they might benefit from following the steps below:

  • Discuss now whether staff are still keen to party, want to defer it or celebrate another way.
  • Make sure you do a proper risk assessment.
  • Prior to the event, make sure that everyone is aware of how they are expected to behave, and whether or not they are expected to come into work the next day.
  • During the social event itself, it can help to have a responsible Manager present to monitor employee behaviour, and perhaps have an informal chat with any party-goers who might be taking things a bit far.
  • At the end of the party, consider supplying or arranging transport, particularly if the organisation has been providing free alcohol.
  • When it’s all over, ensure any complaints are investigated fairly and comprehensively, in accordance with relevant internal procedures.

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice.