There is no detailed legislation specifically designed to deal with the provision of employment references. There is no statutory obligation on an employer to provide a reference at all. However, some legislation and case law impact on different aspects. Surprising, this area of employment law is largely governed by the law of contract. Although employment law also involves obligations of good faith, unless the employer has agreed to provide a reference, they cannot be forced to do so. This may seem odd, particularly given that most employers will make an offer of employment, subject to a satisfactory reference when hiring.

Employers are not under an obligation to check a job applicant’s references, or provide an existing or ex-employee with a reference. It is, however, very good practice to contact an applicant’s referees to seek objective information on the applicant’s suitability and reliability for a role. If you work in certain sectors, such as Financial Services or the Health and Social Care Sector, work references must be supplied, and all appointments are conditional on the references not identifying any concerns.

It is a myth that you cannot give a bad reference. If you give a reference, you have a duty to take reasonable care to ensure it is true, accurate and fair, and that it is not misleading. This duty is owed to both the employee and to the new employer.

A bad reference which you cannot substantiate with facts e.g. gross misconduct dismissal, runs a risk of the employee suing you for damages, if they lose a job directly as a consequence. They could also bring a claim for defamation or discrimination. The new employer could sue you for giving a good reference to someone who is/was patently unsatisfactory, if they have suffered losses as a consequence. In the circumstances, it is perhaps not surprising that many employers opt for giving just a ‘tombstone’ reference, e.g. “she/he worked from X to Y as a clerk”.

One option is to provide no references at all which, unless there is a contractual right, this is a lawful approach, but is not exactly helpful to either the employee or their new employer. There is still a risk, particularly of discrimination claims, unless you stick rigidly to your no references policy. Remember that you too might later in your career need an employment reference supplied by your current employer!!!

ACAS Guidance

New guidance from the Advisory, Conciliation and Arbitration Service (ACAS), provides employers with a timely reminder in relation to their obligations when providing and obtaining references, which is an area in which employers can easily fall foul if they are not careful.

It is increasingly common for employers to provide simple factual references as standard, which includes only basic facts about the applicant, such as their employment dates and job descriptions. ACAS advise that if you are providing further detail (in relation to an ex-employee’s skills, abilities, character etc.), that this should be true and accurate, and a fair reflection of the individual. Take reasonable care to ensure that the information in the reference is true.

When opinions are provided, they should be based on facts. References should not include irrelevant personal information. To avoid claims, employers who express opinions in references (as opposed to facts) should review the references for inaccurate or discriminatory material.

ACAS also suggest that employers should have a policy to help them handle reference requests, telling them what information they and their employees can provide. We are introducing a suitable Reference Policy into your 2019 Handbook updates, so your HR Consultant will be in discussion with you on this matter.

ACAS also recommend that for employers looking to obtain references, it is important to always remember to seek a candidate’s permission to approach their previous (or current) employer. More on this later.

Giving References

If an employer decides to provide a reference, it should be produced by someone with training in preparing references, and have all the relevant information. Employers should ensure the reference is factually accurate and fair, and not misleading in the overall impression it gives to the recipient. Employers should also:

  • Establish if there is an express contractual obligation to provide a reference.
  • Consider any implied contractual obligation to provide a reference.
  • Check whether there are any other consequences of refusing to provide a reference, including potential discrimination claims.
  • Check all employee information (for example, dates of employment, career history, appraisals, record of absence).

Other matters to consider include:

  • References should be addressed to a named person rather than ‘to whom it may concern’, and marked ‘“Strictly Private and Confidential”, and “to be opened by the addressee only”. Providing “to whom it may concern” references raises the risk that the reference may fall into the hands of third parties without the required duty of interest. This has various negative consequences for the employer.
  • Verbal (oral) references can be given, but notes should be kept of the conversation, and no statements made that the employer would not be willing to make in writing.

If supplying a reference where a settlement agreement has been reached with the employee, it is often normal to have reached an agreement on the precise wording of the reference, or the generally positive tone, to avoid any future litigation.

Employers should remember that although references are given in confidence, the recipient may be required to disclose a reference under certain circumstances, such as a request for disclosure by an Employment Tribunal or under the Data Protection legislation.

Obtaining References

Many employers seek references after the job offer has been made; other employers take up references before conducting interviews with all their shortlisted candidates. The purpose of referencing is to obtain objective information on the candidate’s suitability for the role. Employers are under no obligation to take up references for job applicants, and former employers are under no obligation to provide one.

It is important to state in all job adverts, and/or offer letters, that any job offer is conditional upon the receipt of satisfactory references. This means an employer can withdraw an offer without being liable for damages if this requirement is not met. If a job applicant is offered a job, there are two types of job offer that can be made:

  • A conditional job offer – This can be withdrawn if the applicant does not meet the employer’s condition for example, satisfactory references. Once an employer has received satisfactory references, and informed the job applicant, an unconditional job offer can then be made.
  • An unconditional job offer – Once an unconditional offer is made, this cannot be withdrawn, and if accepted, a contract is formed.

Employers should usually ask for a minimum of two references; one of which should be the applicant’s present or most recent employer. Current employers should only be approached with the applicant’s permission. The following points should be borne in mind:

  • For jobs involving the safeguarding of children or vulnerable adults, the details of any concerns that relate to the safety and welfare of children or vulnerable adults can be requested.
  • Prospective employers may ask whether there have been any disciplinary procedures relating to the applicant, but this should be limited to current sanctions that have not expired.

If the prospective employee cannot provide two employment references, it is good practice to accept an educational reference, or a character reference to avoid placing the individual at a disadvantage. Job offers can be made conditional on receipt of a satisfactory reference, allowing organisations to withdraw the employment offer if the references are not deemed satisfactory.

The process for carrying out reference checks should be:

  • Step one: request details of referees from applicants, often via an application form.
  • Step two: once a conditional offer of employment is made, send a reference request to the referee.
  • Step three: on receipt of the reference, consider whether this contains information that reflects on the prospective employee’s suitability for the role.

Sickness Absence

Particular care should be taken with absences because:

  • Asking for an applicant’s attendance record and the amount of sick leave taken is common, but can lead to claims of disability discrimination if the reason for the applicant’s absence is disability related.
  • Mentioning other absences may be classed as sensitive data, the provision of which breaches Data Protection legislation. Revealing the number of days an employee has been absent, but not the reasons for the absences, will not require explicit consent.
  • Employers must get explicit consent from the individual if they are providing sensitive personal data, such as physical or mental health information.
  • Rejecting a job applicant, or withdrawing an offer of employment once they know about a prospective employee’s extensive absences is risky. Long term absence is a good indicator of a disability, and employers may be deemed to be aware of a candidate’s disability once the absences have been revealed.

Disclosure of References

Previously under the Data Protection Act 1998 (DPA), employees had the right of subject access to personal information held by their current or former employer, and this could, in principle, include references given by current or former employers. However, there was an exemption whereby an employer who provided a confidential reference was permitted to decline to disclose this to the employee. This protection was, however, undermined by the fact that the employees could then apply to the recipient employer for a copy of that reference, who could not then rely upon the same exemption.

Under the GDPR and DPA 2018, employees still have the right to make subject access requests. However, the loophole in the previous legislation has been closed, and personal data held by either the giver, or the recipient, of a reference may be withheld where it consists of a reference given, or to be given, in confidence for the purposes of the:

  • Education, training or employment, or prospective education, training or employment, of the data subject.
  • Placement, or prospective placement, of the data subject as a volunteer.
  • Appointment, or prospective appointment, of the data subject to any office.
  • Provision, or prospective provision, by the data subject of any service.

Even though access to a confidential reference may have been made more difficult, an unhappy person may be able to rely upon exercising their enhanced data subject rights, including the right to restrict processing, erasure, object and rectification. Employees (or former employees) retain the right to complain to the Information Commissioner if they think their rights under the legislation have been infringed, and they also now have enhanced rights to seek compensation from the employer giving a reference, if they suffer material or non-material damage as a result of infringement of their data protection rights.

The final decision on whether to release a copy depends on whether it is reasonable. Reasonableness is assessed by considering: –

  • The ex-employer’s need for confidentiality
  • Employees’ interest in seeing what has been said about them
  • The requirement that a reference must be truthful and accurate
  • The potential impact on the employee.

Consent

When responding to reference requests, employers need to consider and document their lawful basis for processing the personal data of the employee. This is central to the concept of “fair and lawful processing”, which is at the heart of data protection legislation. In an employment context, the lawful grounds or conditions which should usually be relied upon will be either that the processing is necessary for the performance of the contract with the employee, or that it is necessary to fulfil a legal obligation. However, neither of those fit easily with the provision of a reference.

Consent is an additional ground. Most commentators on data protection and, indeed the Information Commissioner suggest, that in most cases any consent given by employees will not be valid because of the imbalance in the power relationship. However, in the case of the provision of employment references, it is clearly in the employee’s interests to give consent, and they are not in any way under pressure from the current employer such as might invalidate any consent given.

Oral References

The lessons to learn from the case law are:

  • oral references (formal or informal) are just as (if not more) likely to lead to legal claims than written ones;
  • employers should, wherever possible, avoid giving negative subjective assessments of former employees, particularly orally;
  • Managers should be trained not to be caught off guard by telephone calls seeking amplification of written references;
  • if a positive reference would be unfair, inaccurate or misleading, an employer should, wherever possible, fall back on confirming dates of employment and what the job entailed, without giving any commentary on how good that person was within the job role, or, give no reference at all.

Disclaimer

Employers often include a disclaimer of liability arising from errors, omissions or inaccuracies in the information provided in a reference. You should make use of disclaimers, as they may deter an employee, or a new employer from making a claim, but be aware that disclaimers may be void if tested in the Courts. The circumstances in which a disclaimer will be effective are limited. However, there is no disadvantage to the employer including one.

A disclaimer will normally say something to the effect that the reference is given confidentially and in good faith. Disclaimers will explain that, although the employer believes the reference is accurate based on the information available, the employer and its Directors will not be liable if inaccuracies lead to loss as a result of relying on the reference.

The effect of a disclaimer is to attempt to limit the referee’s liability in negligence. A disclaimer used in these circumstances is void unless it is reasonable, and legislation sets out the test of ‘reasonableness’. It is generally thought that liability cannot be excluded for mis-statement of facts (performance, disciplinary record, and so on), which are normally known to an employer. However, a disclaimer in relation to an opinion on the employee’s suitability for a particular job may be reasonable.

Bearing in mind the possibility of liabilities in this area, employers should have robust internal procedures in place for how references are undertaken.

A disclaimer should also say that the contents are not to be revealed to the subject.

 

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

In 2020, we are running three courses which will cover much of the knowledge and many of the skills needed to be a successful Manager of people.

These three interactive courses are a must for new Managers, as well as being good refreshers for experienced Managers, as case law and good management practices continue to evolve over time.

Our training courses are highly participative, practical in content, and are intended to challenge our delegates into recognising there are always alternative ways of dealing with people and/or situations.

When Can and Should you Dismiss – Newmarket – 25th February & Norwich – 20th October

Dismissing staff can have serious implications if done badly.  The law requires that you have a fair reason for dismissal (e.g. restructuring is not necessarily redundancy), and that you follow fair processes.

This course will cover the difference between a fair and unfair dismissal; why following the ACAS code and internal procedures is essential; and the key issues to consider when dealing with discipline, dismissal and redundancy processes.

Acknowledging Good and Dealing with Poor Performance – Newmarket – 25th March & Norwich – 11th November

How do you assess that someone is competent?  If they are, how do you encourage them to be even better, and if not, what do you do about it?  These are challenges which Managers face on a daily basis.

This course encourages Managers to have realistic expectations on what people are capable of doing; how to define and assess what is poor, good or exceptional performance; formulating performance improvement plans and programmes for personal development; and continuing to motivate and encourage good performers.

Employment Law Myths & Essential Policies – Norwich – 23rd April & Newmarket – 3rd December

We will share with you some of the most misguided beliefs that Managers hold as fact about employment law, and discuss the most frequent mistakes Managers make when dealing with staff; as well as the difficulties created through lack of key employment policies, or not following them.

This course will debunk myths, show you what you can and cannot do, and make sure you avoid fear and confusion when dealing with staff issues.  We will also talk about the need for a wide range of employment policies and their importance, so that Management can deal with people effectively.

The Facts

The menopause, otherwise known as the “change of life”, is a natural stage of life that millions of women workers are either experiencing now, or will go through in the future. The menopause is marked by changes in hormones and the end of menstruation (when a woman’s periods stop for 12 consecutive months).

Symptoms of menopause can vary enormously – from the mildly uncomfortable to the incredibly debilitating. They include hot flushes, palpitations, night sweats and sleep disturbance, fatigue, concentration loss, memory loss, mood swings, skin irritation, depression and loss of confidence. Urinary problems may also occur during the menopause, and many women have recurrent lower urinary tract infections, such as cystitis. It is common for the need to pass urine to arise more often or even urgently.

For most women, the menopause occurs between the ages of 45 and 55, the average age for the menopause is now 52; although a minority of women can experience it in their 30s or earlier. The symptoms can last from four to eight years.

There are around 4.3 million women over the age of 50 currently working in Britain, and consequently, an increasing number of women of menopausal age are working in the UK. 70% of women of menopausal age are in work.

Issues at Work

Menopausal symptoms can prove embarrassing for some women, making them reluctant to discuss the issue openly. Working with male colleagues can increase the level of embarrassment and discomfort, e.g. during hot flushes. Some women suspect the menopause has a negative impact on their Managers’ and colleagues’ perceptions of their competence at work, and feel anxious about these perceived performance deficits, leading to a loss of confidence. Their performance can suffer, and situations which would normally have been dealt with easily, become more difficult.

A bad night’s sleep can affect concentration, while heavy periods or hot flushes can be physically distressing and embarrassing. The psychological effects can also impact relationships at work. For some, the symptoms are so severe that women are forced to leave their job altogether.

A recent research report, The Effects of Menopause Transition on Women’s Economic Participation in the UK, from the University of Leicester, lists the negative effects on menopausal women’s quality of working life and performance at work as including:

  • reduced engagement with work
  • reduced job satisfaction 
  • reduced commitment to the organisation 
  • higher sickness absence
  • an increased desire to leave work altogether

The research found evidence to suggest that these outcomes have a negative effect on some women’s time management, emotional resilience, and the ability to complete tasks effectively.

Support at Work

Often employers have very little understanding of the difficulties surrounding the menopause, and see them as a private matter. Consequently, it is very rarely discussed and organisations are slow to recognise that women of menopausal age may need special consideration. Many women feel that their Managers would be embarrassed if they disclosed their problems, and consequently do not ask for the adjustments that may help them.

Menopausal women have to combat the twin problems of ageism and sexism which face women ‘of a certain age’. Despite the scale of the issue, the menopause if not a taboo subject, still merits scant guidance for employers in helping to support employees through this significant life stage. Women themselves often don’t want to ask for special treatment, and may well be embarrassed. For women working in male-dominated organisations, having to ask for menopause-related sick leave can be embarrassing, particularly when the Line Manager is a young male. According to the website healthtalk.org, relatively few workplaces are responding to their needs.

Treating women as equal to men does not mean treating the two sexes the same. Women are different biologically, and this needs to be considered at work.

The Legal Issues

Employers are required under the Health and Safety at Work, etc Act 1974 to ensure the health, safety and welfare of their employees and, under the Workplace (Health, Safety and Welfare) Regulations 1992, to make workplaces suitable for the individuals who work in them. The duty under Management of Health and Safety at Work Regulations 1999 to carry out risk assessments should include any specific risks to menopausal women.

To meet the definition in the Equality Act, the symptoms must have a ‘substantial and long-term adverse effect on the ability to carry out normal day-to-day activities’. The menopause does not itself amount to a disability, but the physiological or physical consequences of going through it can do for those women who suffer significant health problem as a consequence. There are now Tribunal cases that have deemed that the Claimant’s menopausal symptoms have constituted a disability. It is important to note that these cases do not confirm that menopause will automatically be classed as a disability; it depends on how it affects an individual woman at that stage in her life.

Therefore, this type of condition will be judged by the severity and extent of the individual’s symptoms. We were predicting four years ago that the menopause may well be classified as a disability, so we expect other tribunals to come to the same conclusions depending on the symptoms and facts.

In summary, employers have a legal duty to ensure working conditions don’t exacerbate someone’s symptoms, protect women from discrimination.

What does this mean for Employers?

Before making a decision with regards to an individual’s employment, it is important to take all aspects of the individual’s current state into account. Outside of a disciplinary or a capability scenario, employers should take reasonable steps to support an affected employee in coping with her condition.

The bigger issue is what can employers do generally to reduce their chances of having to deal with a menopause-related problem.

Four issues emerge as areas for possible improvements at work:

  1. greater awareness of Managers about the menopause as a possible occupational health issue for women; 
  2. increased flexibility of working hours and working arrangements; 
  3. access to informal and formal sources of support, including Occupational Heath, where appropriate; 
  4. improvements in workplace arrangements;

In more detail, this means:

  1. Building awareness of the condition, considering practices and creating healthy environments for workers. The menopause should be on employers’ agendas in order to make the workplace a safe and understanding space for the women going through this phase of life. Employers can help by communicating to their workforce that health-related problems, such as the menopause, are ‘normal’. 
  2. As many women experience tiredness, it is good idea to offer flexible working hours, job sharing, and opportunities to work from home. Flexible working is something every UK worker has the right to request anyway. Women should be encouraged to prioritise work-life balance, and maintain firm boundaries between work and non-working life. 
  3. With any longstanding health-related condition, sympathetic and appropriate support from employers and Line Management is crucial. However, Managers can only be sympathetic to these needs and make suitable work adjustments if they are aware of a problem. People are more inclined to disclose if they regard Managers as supportive, and there is a culture of openness about health issues. The key is good and honest communication between the Manager and the employee. Women are more likely to discuss menopausal issues with somebody they feel able to talk to. Employers can raise awareness of the menopause through health promotion programmes, and awareness training for Managers. They can also encourage social support within the workplace. This could include information packs, mentoring schemes and lunch time support. 
  4. There are no universal easy solutions to workplace arrangements, but some simple actions may help to ensure the working environment does not exacerbate menopausal symptoms:
      • Relocation of desks closer to opening windows, provision of desk fans and/or more control over heating.
      • Plentiful supplies of cold water and more frequent toilet breaks.
      • Rethinking of uniforms, specifically avoiding nylon. Employers should provide menopausal women with lighter, non-synthetic workplace clothing, uniforms or corporate clothing to accommodate hot flushes.
      • Clean, well-equipped and comfortable toilet facilities near workstations should be provided for women experiencing urinary incontinence, with showers, washing facilities and quiet workplace rest areas.
      • Access to natural light, which has been identified as having a positive effect on mood and the absorption of calcium during menopause transition (pcs), or light boxes if natural light is not easily available. 
      • A reduction of exposure to noise to help reduce fatigue.

Improvements in workplace arrangements should become accepted and normal. The changes required to provide these improvements need not be costly or complicated. Above all, it is important to listen to women, and respond sympathetically to any requests for adjustments at work.

There are several things women can do outside of work to improve their quality of life in the workplace. Education is important, but the focus should not just be on the woman, but what the employer can do. As a Manager, you can remain hopeful and optimistic – women experiencing the menopause often go through different types of emotions, such as anxiety and depression. These feelings do subside, so encourage women to discuss how they feel, as these feelings are very normal.

Some businesses have branded themselves as “menopause friendly” as a means of helping recruitment. We are not advocating this, nor are we keen on creating Menopause Policies, but it should be part of your approach to the health, safety and wellbeing of your workforce.

Approaches that should be considered include the following.

  • Improving organisational culture to make it clear that the organisation supports menopausal women.
  • Providing women in the workplace with relevant information. Information should include how they can get support for any issues that arise as a result of the menopause. Any literature should encourage women employees to discuss any relevant health concerns with their GP.
  • Supporting women in the workplace by training Managers to understand how the menopause can affect work, and what adjustments may be necessary to support women who are experiencing it. In larger organisations, support can also be provided by allowing the provision of informal support for mid-life women during menopause transition. This can include women’s workplace networks, online discussion forums and helpline numbers.

Benefits

By supporting women through the menopause, and fostering an age and gender inclusive workplace, your organisation will benefit from:

  • increased engagement and loyalty, as well as lower sickness absence and employee turnover;
  • will help you tap into the valuable skills and talent that men and women of all ages have to offer;

Woman are an integral part of most workforces these days, so as they age it is inevitable that they will experience the menopause at work. Whilst some women will be lucky enough to suffer minimally, the majority will not, so it is important that all employers, whatever their size, take on board their needs, and reassure them that they are still actively contributing during the menopause, irrelevant of whether they happen to temporarily look hot and bothered or rather tired!

 

If you would like to raise any concerns, our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

We have previously covered ‘what Managers need to know about personal injury claims’; in this Newsletter, we take it a little further by focusing on reducing the number and size of claims. Workplace injuries are costly. Apart from compensation, fines and loss of productivity, they can result in high emotional and physical strain on your employees, and can have severe repercussions for your business. Therefore, you should be investing in keeping your employees safe.

So it would be remiss of us not to point out that the best way to avoid claims is to avoid having accidents at work. Too many employers are resigned to accidents happening because “people lack common sense,” “do not follow our rules”, or “ignore their training”. We do not accept this approach which simply blames the worker. An accident, by definition, is something that happens unintentionally. They can’t be avoided 100 percent of the time simply because some things cannot be foreseen. That doesn’t mean their likelihood can’t be diminished greatly. In fact, in many cases, workplace injuries are the direct result of not following easy safety precautions.

Accident statistics tend to focus on fatalities rather than those who sustain injuries, which may be serious enough that they can no longer physically work, either for a period to time or not at all. These can form large and expensive personal injury claims due, in part, to the predicted loss of future earnings up until the time the employee states they were thinking of retiring, which could be past state retirement age.

When most people think of workplace accidents, they often automatically associate them with high-risk industries, such as construction or manufacturing. The truth is injuries can occur in any place of employment. We will, therefore, initially focus on avoiding accidents by creating a safe working environment.

It is generally cost-effective to prevent accidents at your organisation. There are three things you can do to help make your workplace safer, and hence make your Insurer much happier.

Put in place a Management System

  • Plan: work with your employees to identify potential problem areas, and set goals for improvement.
  • Train: give your employees the knowledge to identify and take action over potential risks.
  • Organise: make employees, including cleaning and contract staff, responsible for specific areas.
  • Control: ensure working practices and processes are being carried out properly, and keep records of all cleaning and maintenance work.
  • Monitor and review: talk to your employees so they can feedback on how measures are working.

Carry out Regular Risk Assessments

It is important that you identify all workplace hazards and take steps to reduce the risk for your employees. Risk assessments will help you to identify hazards, decide who is at risk and create a plan to eliminate or control them.

By carrying out a risk assessment, you will be meeting your legal requirements, and it will help you make an action plan to reduce the risk of an accident occurring at work.

  • Decide who might be harmed and how. Especially think about younger or older people, disabled or vulnerable people who may come into contact with your organisation.
  • Consider the risks. Note any potential problems, and do something about them.
  • Record your findings, and action plan what further control measures are required.
  • Regularly review the risk assessment and action plans to establish progress, and to take into account factors that may have changed, e.g. new working practices.

Know the Law and Apply it

It’s a good idea to read up and be aware of at least: the Health and Safety at Work Act (1974), plus the six pack of Regulations and COSHH, and keep a close eye on the HSE website.

An employer has two main responsibilities when it comes to preventing accidents in the work place:

  • taking measures to protect anyone in the workplace from harm (including visitors and customers);
  • informing the Health and Safety Executive (HSE), via RIDDOR, in the case of (i) death or specific incidents; (ii) accidents that prevent workers from returning to work for seven continuous days or more; and (iii) non fatal accidents to non-workers, e.g. members of the public, if they result in an injury and the person is taken directly from the scene of the accident to hospital for treatment to that injury;

It is an employer’s duty to conduct risk assessments, offer appropriate health and safety training, conduct emergency planning and provide adequate first aid. If you employ more than five people, you must have a written health and safety policy. By creating and distributing a health and safety policy, you show your employees that you take their health and safety seriously, which will increase their trust in your leadership. A good policy will reduce the risk of accidents, and give you some defence if you can show that it is current and relevant to what you do. Unearthing a ten year old document is unlikely to impress your insurer, or a claimant’s solicitor.

Avoid Accidents in the Workplace

Put safety at the forefront. Follow this list of tips on how to prevent injuries from happening in the first place:

  • Always be alert. Care for the well-being of the workforce so that workers are not working when unduly fatigued or stressed, or suffering from injuries or illness.
  • Don’t rush people. In many workplaces, time is of the essence. Employees are given deadlines that they must meet, so there is often a sense of urgency when it comes to completing certain tasks. It’s important, however, to give the appropriate amount of time to perform your duties safely. With a ‘get it done quick’ attitude accidents happen often because people take shortcuts.
  • Provide safety gear. Many jobs require appropriate PPE to be worn to protect the user from known workplace hazards. The trouble is that many employers do not insist that it be worn at all appropriate times. Your employees must always wear their PPE when it’s required, as using PPE correctly can potentially minimise life changing injuries should an accident occur at work. If your risk assessment indicates that your employees require PPE, you must provide suitable, task-appropriate protective equipment that is a suitable fit for each employee. Provide appropriate training to ensure your employees understand how and when they must wear it, as well as how to check and report any faults in their equipment. Those in charge must always lead by example and never shirk their responsibility to wear their PPE, and to enforce the wearing of PPE. However, you should only use PPE as a last resort, so ensure you implement all other controls measures first.
  • Provide clear instructions. Whilst many employees are expert at what they do, you need to ensure that they have been well informed and given appropriate training to make educated and/or dynamic judgments about what is and what is not safe. Paying attention to detail can help you to avoid making mistakes that can lead to injury.
  • Organise emergency drills. Workers can tend to take safety drills for granted. Emergency drills are conducted for the purpose of teaching employees what to do in the event of an emergency, but because they are not “the real thing”; the tendency is that people often go through the motions carelessly. However, participation in such drills couldn’t be more important, so if you spice up the drill with, e.g. deliberately blocking certain exit routes, it will shake people out of their complacency, make them think through what options do they have. Overall, they should find the exercise more rewarding and you will find some beneficial learning, especially if you timed how long it took people to find alternative exit routes.
  • Keep workspaces clean and clear. A cluttered, unclean work area is more difficult to efficiently manoeuvre in, and workers are more prone to hazards. Make sure employees adhere to something as simple as running computer cables and cords properly, so that they don’t create a tripping hazard. No matter if the work environment is a manufacturing; warehousing or an office cubicle, keeping the area clean, well-maintained with good house-keeping standards significantly decreases the likelihood of accidents.
  • Post proper signage. You can help to make your employees aware of hazards by displaying hazard specific warning signs. All employees must understand what each sign means, and what precautions they need to take for specific hazards. Each work area on your premises will have different hazards, so you need to ensure that you select appropriate signs. Employers should post signs reminding employees of proper safety procedures in noticeable places, and in spaces where those specific procedures should be practiced.
  • Inspect and maintain all equipment and machinery. Regular maintenance is vital as it helps to ensure that all equipment is in a reliable and in safe working order. A competent person must carry out regular inspections and maintenance on your equipment and machinery in accordance with PUWER. Keep all inspection records. Many claims involving equipment are conceded or lost because of inadequate records.
  • Maintain a safe fleet and safe drivers. For employers that provide employees with business vehicles to complete daily tasks, it’s imperative that vehicles are well maintained and serviced on a regular basis. If you have a grey fleet of employee vehicles, then ensure that employees can provide evidence that their vehicles have business insurance, and that they are taxed and regularly serviced. Additional or advanced driver training will help reduce employer’s vicarious liability, as well as your insurance premiums.

Provision of adequate information, training and supervision

All workers have a responsibility for health and safety at work, and must make sure they work safely and do not put them or others at risk. Some of that is common sense, but it is also about the provision of information, training and good supervision.

Information ranges from good induction processes through to regularly informing and updating people about your health and safety rules, safe systems or work, all work procedures and risk assessments. Indeed, the failure to provide adequate written safe systems of work that the employee was then trained in is the personal injury solicitors default position, as many employers struggle to provide this evidence.

Proper training of all employees and Management is especially important when taking on a new/revised job that may present a number of risks. Employees must be appropriately and regularly trained in health and safety measures, and receive adequate training for all their duties. Appropriately trained employees are less likely to have workplace accidents, as they understand how to carry out their duties correctly and safely. By training your employees, you will also fulfil your legal duties and help foster a positive health and safety culture. If you fully record your training, then you will have a good audit trail to impress your insurer, and depress the claimant’s solicitor!

Most solicitors will attribute any accident (especially if they think their client was partially at fault) to a failure of supervision. Train supervisors well in their health and safety responsibilities which should be an integral part of their job, not just an add-on only when they have time.

Investigate thoroughly

The purpose of accident and incident investigation, if done well, should lead to the prevention of such events in the future. Organisations must carefully plan how they will investigate accidents, and to make sure that those involved have received adequate training, and are fully aware of the organisation’s policies and procedures. Prompt, thorough investigation reduces the opportunity for collusion.

Reasons to investigate a workplace incident include:

  • most importantly, to find out the cause of incidents and to prevent similar incidents in the future;
  • to process workers’ personal injury compensation claims;

Although there may be occasions when you are unable to do so, every effort should be made to interview witnesses. In some situations, witnesses may be your primary source of information because you may be called upon to investigate an incident without being able to examine the scene immediately after the event. Because witnesses may be under severe emotional stress, or are afraid to be completely open for fear of recrimination, interviewing witnesses is probably the hardest task facing an investigator.

Witnesses should be kept apart, and interviewed as soon as possible after the incident. If witnesses have an opportunity to discuss the event amongst themselves, individual perceptions may be lost in the normal process of accepting a consensus view where doubt exists about the facts.

Witnesses should be interviewed alone, rather than in a group. You may decide to interview a witness at the scene where it is easier to establish the positions of each person involved, and to obtain a description of the events. On the other hand, it may be preferable to carry out interviews in a quiet office where there will be fewer distractions. The decision may depend in part on the nature of the incident and the mental state of the witnesses.

If you have not investigated thoroughly, don’t be surprised if your insurance company opts to settle and then increases your business premium. A thorough, professional accident investigation with well complied supporting documentation will substantially decrease your liability.

Manage your insurance company

Most insurance companies want an easy life, but if you are having regular accidents/claims they will probably become reluctant to fight cases because of your poor accident history. Get on board with their advice on what you can do to improve safety, and what they can do to avoid encouraging claims, by not rolling over when a claim is without merit, or is being ‘inflated’. Check what records they expect you to provide, and tailor your systems accordingly. Some employers seem to discount the cost of accident claims as just an insurance issue, but bad employers will end up paying much higher insurance premiums sooner or later.

Pick your fights

There is no point fighting cases that you cannot win, it just reinforces the belief that employees cannot lose and generates more claims. If you have an objectively strong case, then it is worth defending, as winning sends a strong message to employees thinking of trying it on. Get advice – not emotional.

Consider paying people after accidents

Some of our clients have generous sick pay schemes, and some have no provision for paying people at all. Some of both groups will either explicitly or discreetly pay off people who have clearly been injured at work through employer negligence. The upside of such a policy is that it can generate goodwill, and takes away a substantial element of most claims, i.e. loss of earnings. In such circumstances, this reduces the chances of a claim, or reduces it to just the pain and suffering which is usually the lesser part of a potential claim. The downsides of making payments are that it may be taken as an admission of guilt, and may induce people to exaggerate their injuries/recovery times, or persuade people injured in a weekend sports match to attribute their injuries to an accident on Monday morning. This is not an easy subject, but prudent employers consider it on a case by case basis.

Return to work

If you can get people back to work quickly, then it will reduce the chance of a claim, or at least reduce the scale of the compensation. Keeping in regular contact with the injured employee will, to some extent, minimise the feelings of resentment and anger towards the organisation. Do this even if you know early on that they are planning to put in a claim. Keep up a regular flow of communication, encourage them to visit, and keep talking about their return to work, if that is possible.

Reasonable adjustments do not just apply to disabled people. If you can let people do ‘light duties’ , or office work, or work from home, it may not be ideal but at least you are getting some work out of them, and reducing your chance of an expensive settlement. You need to be creative with what work people can do, and consider a phased return to work, taking appropriate Occupational Health advice when necessary. Arrange and pay for counselling or other forms of proposed medical interventions, e.g. physio as a way of helping the employee. Document everything about the return to work discussions, the consideration of reasonable adjustments, the phased return and the subsequent monitoring. All of this can and will help mitigate the size of the compensation claim.

Finally, there is a temptation to take the view that the insurer will cover the costs. Read the small print, and you will find that any prosecution fines are not covered, only the legal costs, under what is now a new regime of substantially heavier fines. Also be aware that personal injury solicitors have up to three years after the accident, or at point of diagnosis of illness, to submit claims. If they know you are also being prosecuted, they will wait to establish the outcome, as a finding of guilty immediately increases their success of winning a more substantial claim for their client, or injured employee. Trying to take witness statements, finding and compiling evidence to support your employee’s claim years after the event is virtually impossible, but if you follow our guidance and keep excellent collated records, then you will be better able to fight subsequent personal injury claims when they arrive.

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

After much heralding, GDPR arrived on 25th May 2018, the world has not stopped turning, although we are not yet beginning to discover its true impact, as GDPR compliance goes beyond the sparkly new privacy notice, some internal training, and writing new/revised policies. There is as yet no case law on GDPR, but there have been some notable cases on the old data protection law, and some interesting prosecutions.

Cases for Data Breaches

The Independent Inquiry into Child Sexual Abuse was fined £200,000 after sending a mass email that identified possible abuse victims. An Inquiry staff member emailed 90 people using the “to” field instead of the “bcc” field – allowing recipients to see each other’s addresses, it said. The incident was a breach of the Data Protection Act. The Inquiry said it had apologised and reviewed its data-handling. It is an easy mistake to make, but a potentially damaging one.

In B v The General Medical Council, the Court of Appeal has given guidance on when to disclose information containing the personal data of more than one individual or mixed data, in response to a subject access request (SAR). In this case, an expert report concerning a GP’s fitness to practice was not disclosed to a patient in response to a SAR made by the patient for personal data held about him. This was withheld on the basis that the report contained mixed personal data, i.e. personal data of both the GP and the patient.

Generally, under data protection legislation, a data controller is not obliged to comply with the request unless the third party has consented to disclosure of the information. Previous case law indicated that there was a presumption against disclosure in a mixed data case where the third party withholds consent. In this case, the GP, Dr B, did not consent to the report’s disclosure, principally on the basis that the request was being made with a view to litigation against him.

The Court of Appeal held that:

  • In determining whether to disclose mixed data, a balance should be struck between the requestor and objector’s competing interests and a presumption in favour of withholding disclosure should only be applied in a ‘tie-break’ situation, i.e. where all of the other interests balance equally.
  • The requestor’s interests in seeking the disclosure should not be devalued because the information may assist them in litigation.

This is now the leading case on mixed personal data, and will be relevant to employers faced with SARs where the disclosure of mixed personal data is in issue. Employers face an increasingly onerous task when complying with SARs under the new regime, and, following this decision, should think carefully before refusing requests for disclosure of “mixed data” due to lacking consent from a third party.

Following a cyber-attack on the British and Foreign Bible Society, which led to a data breach by the charity in 2016, the ICO has recently fined the Society £100,000 for failing to take “appropriate technical and organisational steps” to protect its supporters’ personal data. In particular, the ICO criticised the Society for failing to put strong enough security measures in place to protect the accounts it held concerning its donors, exposing them to the risk of financial and identity fraud.

This attack appears to have been made possible by vulnerabilities in the Society’s network, including its weak password, which the attackers exploited in order to access the data of over 400,000 donors to the charity, including names, addresses and payment card details. The attackers then used ransomware to encrypt the data, holding the Society to ransom by offering to unlock the encrypted data for a fee.

The ICO appears to have taken a strong stance in this instance to emphasise the point that, even where organisations are innocent victims of a cyber-attack, they are responsible for any data breaches that result from their failure to put sufficient protective measures in place. The ICO said that due to the reality that cyber-attacks happen, organisations must make it “as difficult as possible for intruders”.

In considering the seriousness of the data breach, the ICO emphasised the fact that supporters’ religious beliefs could be inferred from the personal data in question, as this made the breach likely to cause “substantial damage or substantial distress”, the extent of which “cannot be underestimated”.

The key lessons we can learn from this case are:

  • Even where it is a victim of a criminal cyber-attack, an organisation can itself commit an offence simply by using systems which leave themselves vulnerable to such data breaches. Organisations must, therefore, prepare for the possibility that they may become the victim of such an attack.
  • This fine is considerably larger than the fines previously imposed on charities by the ICO. Of the thirteen charities fined in 2016-17, the largest fine had been £25,000, and the rest were all less than £20,000. The substantial increase in fine indicates the start of a much tougher approach by the ICO.
  • It is important to act quickly and proactively following a data breach. All organisations need clear processes to be able to identify and respond to a breach, and in particular, should contact anyone whose data may be affected, and find out the impact this has had on them. Taking positive action may mitigate the breach’s impact, and alleviate the fine imposed by the ICO.

Although these cases were decided under the Data Protection Act 1998, the same principles are likely to apply under the GDPR and the DPA 2018. The next case is very different, but even more worrying from an employer’s perspective.

In WM Morrisons Supermarkets plc v Various Claimants, the Court of Appeal held that an employer was vicariously liable for the actions of a rogue employee, who disclosed the personal information of around 100,000 colleagues on the Internet.

The Court of Appeal specifically rejected Morrisons’ public-policy argument that vicarious liability in similar scenarios imposes a disproportionate burden on ‘innocent’ employers. The Court’s strict stance in that regard should be viewed in conjunction with the possible increase in data protection-related group litigation now that the GDPR is in force. The decision is particularly notable in light of the ICO’s conclusion, following its investigation into this case, that Morrisons had not breached the DPA, and as such, should not be fined. In complete contrast, the Court suggested that employers should insure against data breaches committed by employees given the large potential liabilities involved. Morrisons are now appealing to the Supreme Court on this decision, so we wait with continuing interest and some sympathy.

The consequences of this decision for Morrisons are likely to be very costly, as it will be required to pay a significant level of damages to a large number of its employees. The decision also significantly broadens the scope for claims against employers, even where (as in this case) they have compliant data protection policies in place, and are subject to the vexatious actions of a rogue employee. The risk of reputational damage, as well as increased levels of fines under the GDPR, means that the consequences of the Court’s decision are potentially very far reaching.

Fines

Given that GDPR has only been in force since May 2018, it’s still too early to tell how aggressive data regulators across the EU will be, but Article 83 does stipulate provisions for assessing the severity of a breach and the appropriate punishment.

Lower tier fines should be typically handed out to those organisations who have failed to integrate data protection policies “by design and by default” into the services they offer to the public. Additionally, any organisation that fails to co-operate with a data regulator, regardless of the nature of a breach, is also likely to fall into this tier. The lower tier also marks out organisations who have failed to assign a data protection officer (when it’s clear that one is required), those organisations who fail to inform data subjects as and when their personal data is compromised, and those that fail to keep adequate records of the data they are processing.

The higher tier will apply only for the most serious GDPR infringements, including breaching subjects’ data and privacy rights, not following the basic principles of data protection, and refusing to comply with demands and requests from the data regulator, such as a refusal to comply with a previous warning or an order on processing data. How organisations handle user consent will also be considered.

Fines almost certainly won’t reach the scale outlined under GDPR for the vast majority of organisations. The regulations themselves make clear all fines issued will be administered on a case-by-case basis, in the spirit of being “effective, proportionate and dissuasive”. Regulators will take into account the nature of the infringement, its gravity and duration, the scope and nature of an organisation’s data processing, as well as the number of data subjects affected and the level of damage they have suffered.

The legislation also makes clear that intention, and scope for negligence, will be taken into account, as well as any previous efforts taken to comply, and any actions taken to mitigate damage to affected data subjects. This means organisations should document all processes, and show their working to prove to the data protection regulator that they are doing everything possible to comply. Other factors will include an organisation’s history when it comes to infringements, the categories of personal data affected, how quickly any infringement was reported, and their level of cooperation with the ICO.

The ICO has gained a reputation for being a conservative regulator, inclined towards leniency. Given the scale and severity of fines set to be imposed under GDPR – 40 times greater than the current maximum of £500,000 – as well as soundings by the Information Commissioner, Elizabeth Denham, all eyes are on the ICO as to how it will operate now that GDPR is in effect.

“While fines may be the sledgehammer in our toolbox, we have access to lots of other tools that are well-suited to the task at hand and just as effective,” Denham said in a speech in August 2017.

In the same speech, she reassured organisations that “predictions of massive fines under the GDPR that simply scale up penalties we’ve issued under the Data Protection Act are nonsense,” indicating the ICO will continue to operate in much of a similar vein to how it has been thus far, with fines a last resort. The ICO may, however, feel the need to demonstrate its new powers by imposing substantial fines, which would serve the dual purpose of bringing many private organisations into line.

The ICO is believed to have a number of ongoing investigations that have yet to materialise a sanction, including Ticketmaster, which suffered a breach on its systems in June. It recently revealed that it was receiving over 500 calls per week.

Brexit

In theory, GDPR is unaffected by Brexit, although data protection has been discussed in the Brexit negotiations as there are some key aspects of the draft EU-UK Withdrawal Agreement which concern data protection. It is encouraging that there appears to be a clear drive towards a position in which personal data can continue to flow seamlessly between the UK and the EU.

The draft Withdrawal Agreement and its accompanying Outline of the Political Declaration documents – Section VII, ‘Data and information processed or obtained before the end of the transition period, or on the basis of this agreement’ – are lengthy.

There’s a fear that in a post-Brexit world the current free flow of personal data within the EU would no longer exist, and UK organisations could be left grappling with strict data transfer rules. A significant point in the draft Agreement is that some flexibility is proposed around the deadline for agreeing a mechanism for data flows between the UK and the EU, post Brexit. The UK hopes to be awarded what is termed an ‘adequacy decision’, whereby the EU would recognise UK data protection standards to be on a par with those of the EU.

The draft Agreement does not describe a precise mechanism for how data will be transferred. It does, however, say that EU citizens’ data processed in the UK before and after the end of the transition period will be processed in line with EU data protection law. It also says that member states will continue to process data on UK citizens in line with the EU laws. So, the status quo could continue at least until the end of 2020, and perhaps beyond. It is far from clear what will happen in the event of no deal or a hard Brexit, but it is likely that some agreement will still be reached as it suits nearly everyone. In December 2018 the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 were published in draft form. Their purpose is to replace GDPR with a version that will make sense once the UK has left the EU, a “UK GDPR”. Watch this space!

Subject Access Requests (SARs)

The good news is that there has not been a general flurry of Subject Access Requests (SARs) due to the publicity of the GDPR, or the lifting of the £10 fee. There was a reasonable fear that people would suddenly take an interest in the contents of their personnel file, or what emails were saying about them. We are, however, getting reports that solicitors are using this device as a prelude to litigation. This tactic was predicted and looks like it is coming to fruition, with potential employee claimants going on fishing expeditions to see if they can find something which they can use to improve their chances of winning a claim, or find another claim to add to what they already intend to do. The most fruitful source of ’ammunition’ is a request for all emails about them which might include slightly derogatory comments about them, or, worse still, emails which show a clear intention to dismiss them, or comments which might easily be described as discriminatory. There is very little that can be done to counter this tactic, and we certainly would not advise withholding information just because it will be damaging. The best way to reduce exposure is to be very careful about what is said in writing – use the telephone and speak instead.

The good news is that if you follow our advice and keep an audit trail of an employee’s failures and/or misdemeanours and what you have done to deal with the situation, you will have a much better defence, even if you have used slightly intemperate language to describe them and their actions.

Review

Research shows that organisations struggled to be ready for the May 2018 deadline. For example, a study conducted after the GDPR came into effect showed that many organisations are failing to respond to subject access requests within the one-month time limit, with many failing to respond at all!

This could be for a number of reasons:

  • personal data is so important to how we all do business, even small changes to how its use is regulated has a major impact on operations;
  • achieving compliance requires input and effort from all areas of an organisation – not just the compliance team; and
  • guidance on how the GDPR would be enforced was not available for all aspects of the Regulation, and industry standard compliance methods were in their infancy;

The bad news for those still reeling from GDPR is that there is a draft European regulation relating to privacy and electronic communications. It is expected to be finalised by the end of 2019. Assuming a reasonable implementation period, this is unlikely to take effect until 2020 at the earliest. But like the GDPR, it could have a major impact on your business, so preparing for this in 2019 makes sense.

It will replace the current Privacy and Electronic Communications Directive 2002, and bring the law in this area more in line with the GDPR, including the same level of potential fines following a breach. Like the GDPR, moving from a directive to a regulation will also provide a greater degree of uniformity across the EU.

As legislation with a specific application (e.g. electronic communications), it will supersede the GDPR, which has a general application. It will impact how messaging services (Skype, WhatsApp, Facebook, Messenger, etc.), telephone calls, SMS and emails are regulated. The biggest impact could be on businesses that send B2B marketing emails.

All this means that, data protection compliance has no respite and is going to be an ongoing journey.

 

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

 

Sports fans may have been puzzled by the ongoing saga of Sean Edwards, who was announced last summer as the new coach of Wigan rugby league club; the team he played for before taking up a successful career as a coach in rugby union. Unusually it was agreed that he would be taking up the role in 2020, at the end of his contract with Wales after the World Cup. Mr Edwards recently announced that he was ’considering his options’ as he had never signed a contract with Wigan. Not surprisingly it has emerged that he is being pursued by several rugby union teams, but would this put him in breach of contract?

Peter Stanway, our BackupHR™ legal expert comments:

The short answer is yes, as an ‘oral contract’ would be binding. Whether Wigan would want to have a coach who preferred to be elsewhere is another matter, but there was clear evidence at the time that he had agreed a deal. There is no clear legal requirement under English law for an employee to have a signed contract with his or her employer. Oral contracts are binding, but the key issue that needs to be resolved is whether or not an employment contract was formed between the two parties. Just agreeing a start date and a salary is probably insufficient. The legal requirement is certainty, and terms and conditions of employment and job description/ responsibility can be very important, especially in senior management roles. In the absence of a signed contract, these requirements are more difficult to prove.

We have always advocated providing a written statement of terms and conditions of employment (aka a contract) at the same time, or very shortly after, a brief offer letter. We also recommend issuing a copy of the employer’s handbook of policies, often called an Employee or Company Handbook, not least because we would expect such a document before giving notice to a current employer, but mainly because it will (or may) contain very important information that may influence decisions about whether to accept the job or not. We would also recommend doing so because it just makes the potential employer look that much more professional.

Employers currently have up to two months to give new employees a Section 1 statement (contract of employment), although it is still common to discover that all an employer has provided is an offer letter. The problem we have found is that in the absence of a proper written contract, the employer can be left on weak legal ground in the event of a dispute. Employers who have relied on the 2-month rule, or just ‘not got around to it’, do not really have a leg to stand on if there is then a dispute early into the employee’s employment.

In April 2020, the Government is proposing that a Statement of Terms & Conditions of Employment must be issued on day one (or earlier). This was not prompted by the Government’s desire to protect employers, but pressure from employee groups, as well as, wanting to make litigation through the already congested court/tribunal system less likely.

The change is not just to the timing of issuing employment contracts, but it will also apply to people classed as workers, i.e. the ‘not genuinely’ self-employed. We are recommending to our clients that they should anticipate the changes, and start to issue new employees/workers with their documentation before employment starts, or if not feasible to do so then, as part of induction training on day one.

Actions

  • Consider the timing of when to issue contractual documentation – we would advise prior to appointment.
  • Review induction training to include clarification of key terms and conditions of employment, and all relevant employment policies and procedures.
  • Review whether such documents are legally up-to-date and comprehensible.
  • Consider carefully what to do about workers.

 

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 us for a free initial chat on 01480 677980.

 

Statutory Figures

The annual increase in compensation limits has just been announced. The limits apply to dismissals, including redundancies, occurring on or after 6th April 2019.

  • £525.00 – the maximum amount of a week’s pay for calculating statutory redundancy pay and the basic award; (up from £508.00);
  • £15,750.00 – the maximum statutory redundancy payment or basic award, i.e. 30 weeks (up from £15,240.00);
  • £86,444.00 – the maximum compensatory award which can be made for unfair dismissal (up from £83,682.00), or one year’s gross pay whichever is the lower;

These increases mean that the maximum total unfair dismissal award is now £102,194.00, 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 £29.00 (from £28.00) 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 2019.

Contracts of Employment and Payslips

New legislation that comes into force from April 2019 will require all employers to (a) provide payslips to all workers, and (b) show hours on payslips where the pay varies by the amount of time worked. This is a new rule for better transparency around pay, and for making matters more straightforward when someone challenges the numbers on their payslip.  The statutory right to receive an itemised payslip will be extended to all workers.  This means not just employees, but also what I would call dependant contractors. This means people who work for you, but do not really fit the category of genuinely self- employed. You should check that payroll providers will be in a position to provide compliant payslip information for those on an hourly rate.

When a payslip is required, it can be provided as a printed or written document, or your employer is at liberty to provide it electronically. However it is provided, the payslip must be provided on or before the employee’s payday.

The legal requirements of the detail on payslips are limited; there are many styles and formats which vary from employer to employer. The law on payslip requires at least the following to be shown (as a minimum):

  • Earnings before and after deductions;
  • The amounts for deductions which may change from period to period;

Many payslips were minimalist and the change gives the opportunity to go beyond this, so that staff can see how their pay has been calculated. In theory, this should reduce queries to payroll departments because people do not understand how their pay has been worked out.

Employers must review their business and payroll data processes, and check compliance with this new law – amend their processes and configure their payroll operation, to enable the correct hours’ information to be provided. Doing so should better enable employees to identify what they are being paid, and equate that with worked time. It will enable them to better identify if the employer is meeting their minimum pay obligations (National Minimum Wage and National Living Wage) and are not requiring added unpaid work-time.

Statement of Written Terms

From April 2020, it will not just be employees who are entitled to receive a written document setting out their basic terms, because the right will be extended to workers too. This is a new entitlement that should bring clarity for many workers regarding their contractual terms.

Employers currently have two months in which to provide the written particulars (generally known as contracts) to their employees, but this will change to become a “day-one” right instead. This will ensure that both parties are clear about the main contractual terms from the outset of the relationship.

Further, additional details will need to be included in the documentation, such as details of any paid leave (like maternity or paternity leave), the duration and conditions of any probationary period, and information about entitlements to any benefits.

Employers should carry out a full review of contracts, and recruitment and on-boarding processes to ensure that they comply with the new rules on contract content, and that all hiring Managers are aware that contracts will need to be provided on, or before, day one of employment.  We have always advocated supplying such documentation on day one (if not before), so you should consider implementing this in advance of April 2020.  This means issuing contracts and handbooks at the same time, partly because the two go together, but also to avoid it getting forgotten later. The better alternative is to issue the statements with a short covering letter, and the handbook before they start work.

A recent tribunal case (Stefanko & Ors v Maritime Hotel Ltd) ruled that employees who have worked for one month have a right to a Written Statement of Particulars under s1 ERA 1996, where their employment did not last for two months. Yes we know it does not make sense, but is probably legally correct, so yet another reason to implement the new rules about providing contracts sooner rather than later.

The biggest changes for many employers will be what to do with ‘workers’. They will need clear payslips, and to be issued with written ‘contracts’ from next year. This presents two challenges:

  • Identifying who these workers are. Falling back on an argument that all contractors are self-employed, so no need to worry, is becoming increasingly difficult in the face of case law, and HMRC attempts to gain as much tax revenue as possible.
  • The contracts they receive should be of good quality, i.e. well-written and also reflect the reality of the relationship. The Government backed away from adopting the term ‘dependant contractor’, but this term does better reflect the nature of such people and avoids the nebulous European term of ‘worker status’. I would also call them the ‘not genuinely self employed’

Company Cars

New company car advisory fuel rates have been published took effect from 1 March 2019. HMRC guidance states: ‘You can use the previous rates for up to one month from the date the new rates apply’. The rates only apply to employees using a company car.

The advisory fuel rates for journeys undertaken on or after 1 March 2019 are:

Engine size                   Petrol                LPG                   Diesel

1400cc or less                 11p                     7p                     10p

1401cc – 2000cc             14p                    8p                      11p

Over 2000cc                   21p                  13p                      13p

HMRC guidance states that the rates only apply when you either:

  1. reimburse employees for business travel in their company cars, or
  2. require employees to repay the cost of fuel used for private travel;

You must not use these rates in any other circumstances.

Pension Contributions

Under auto-enrolment law, minimum pension contributions to both (group) personal pension schemes and trust-based defined contribution (DC) schemes increased from 6 April 2018, and they will increase again from 6 April 2019.

Employers that currently only make the minimum contributions will, therefore, need to be ready for these increases so that the correct employer and employee contributions are paid to the pension schemes from these dates. The increases based upon employees’ “qualifying earnings” (between £6,032 and £46,350 in tax year 2018/19) for most employers will be as follows:

Period

Employer contribution (minimum)

Employee contribution (minimum)

Total contribution (minimum)

Currently until 5 April 2019

2%

3%

5%

6 April 2019 onwards

3%

5%

8%

In some cases, employers have decided to use another definition of earnings for auto-enrolment, and have certified their schemes to that effect; the increases will be different to those that only use “qualifying earnings”. For example, for employers that calculate contributions based on gross earnings (not including bonus, overtime or commissions) the increases will be as follows:

Period

Employer contribution (minimum)

Employee contribution (minimum)

Total contribution (minimum)

Currently until 5 April 2019

3%

3%

6%

6 April 2019 onwards

4%

5%

9%

 

 

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

There will be a number of important employment law developments in 2019.

Post-Brexit Immigration Rule Changes

Regardless of whether a deal on the UK’s exit from the EU is agreed, the rules around the employment of EU nationals will change sooner or later. Once the UK leaves the EU, free movement will end, although in practice this is likely to be delayed pending legislation to repeal the current arrangements. Also, it will take time to put in place the practical arrangements necessary to make this possible. The Government has confirmed that it will introduce a skills-based immigration system once the UK leaves the EU.

The Government has introduced a scheme under which EU workers already in the UK will be able to apply for “settled status”; to be able to live and work in the UK indefinitely. However, employers need to be aware that, going forward, the employment of workers from the EU is likely to be subject to restrictions in the same way as the employment of other foreign nationals; so recruitment processes will need to be adjusted accordingly. Recruitment and retention policies will certainly need to be reviewed for effective workforce planning.

Despite Government ‘reassurance’, there are practical steps employers can take now to reassure their European workers, and help them navigate the immigration maze. Employers should also be aware of the real risks in adopting a passive attitude. If you take no action, you risk employing illegal workers further down the line, and losing key non-UK staff, either because of illegality or uncertainty.

National Minimum Wage Rate Increases

The Government will increase the National Living wage (NLW), which applies to workers aged 25 and over, by 4.4% from £7.83 to £8.21 per hour from 1st April 2019.

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

  • from £7.38 to £7.70 per hour for 21 to 24 year olds;
  • from £5.90 to £6.15 per hour for 18 to 20 year olds;
  • from £4.20 to £4.35 per hour for 16 and 17 year olds; and
  • from £3.70 to £3.90 per hour for apprentices;

If you provide some form of staff housing as part of the contractual arrangements, then the daily accommodation offset will increase to £7.55.

Increased Statutory Rates

The weekly rate for Statutory Sick Pay is expected to increase from £92.05 to £94.25 from 6th April 2019.

The weekly amount for statutory family pay rates is expected to increase for 2019/20. The increase normally occurs on the first Sunday in April, which in 2019 is 7th April.  The new rate will apply to maternity pay; adoption pay; paternity pay; shared parental pay; and maternity allowance.

The current weekly rate of Statutory Maternity Pay is £145.18 or 90% of the employee’s average weekly earnings if this figure is less than the statutory rate. This rate is rising to £148.68 from 7th April 2019.

Also on 7th April 2019, the rates of Statutory Paternity Pay and Statutory Shared Parental Pay will to go up from £145.18 to £148.68 (or 90% of the employee’s average weekly earnings if this figure is less than the statutory rate).

The rate of Statutory Adoption Pay will also increase. This means that, from 7th April 2019, Statutory Adoption Pay is payable at 90% of the employee’s average weekly earnings for the first six weeks, with the remainder of the adoption pay period at the rate of £148.68, or 90% of average weekly earnings if this is less than £148.68.

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.

Preparing for Parental Bereavement Leave and Pay

The Government has confirmed that it intends to introduce a right for bereaved parents to take paid time off work. Under the current proposals, bereaved parents will be able to take leave as a single two-week period, as two separate periods of one week each, or as a single week. They will have 56 weeks from their child’s death to take this leave.

The new right is expected to come into force in April 2020, but employers can start preparing for it during 2019, and could decide to introduce their own bereavement leave policy if they don’t already have one.

Extend Itemised Pay Statements to Workers

From 6th April 2019, the right to an itemised pay statement will extend to workers, not just employees.

Further, where a member of staff’s pay varies according to time worked, employers will have to include on the itemised pay statement the total number of hours worked for which variable pay is received. This can be done either as an aggregate figure, or as separate figures for different types of work, or different rates of pay.

If you have ‘workers’, then you need to ensure they get proper pay statements, and if your payslips for employees are ‘minimalist’, then you need to be changing them to conform to these new requirements.

Significant Developments in the Pipeline

We are now seeing the development of further legislation as per the recommendations made in the Taylor Review of Modern Working Practices, i.e. the Good Work Review. The Government claims it is the biggest reform of employment law in 20 years.

Proposed changes, dates yet to be confirmed, include:

  • Amending the rules on continuity of employment. This will increase from one week to four weeks as the period required to break continuity of employment, for the purpose of accruing employment rights. When this occurs, this will be a significant change for employers, particularly those that regularly employ casual and/or seasonal workers or temporary employees that are on either fixed term or open ended contracts.
  • There will be legislation to streamline the employment status tests, so they are the same for employment and tax purposes, to avoid employers misclassifying employees/workers as self-employed. The Government accepts that ‘renewed effort’ should be made to align the tests, and will bring forward detailed proposals in this regard. The Government will also legislate to ‘improve the clarity of the employment status tests, reflecting the reality of modern working relationships’. Legislation to clarify employment status is, of course, welcome, but the difficulty is establishing clear definitions which are better than those we currently have. Nobody knows how to do that, and the Government has simply said that detailed proposals will be published in due course.
  • A ban on employers making deductions from staff tips. Presumably this may be achieved by extending the existing unlawful deduction rules to cover tips, although at present this is not stated as to how this will happen.
  • Limited proposals are there to tackle abuse of zero hour contracts. There will be a right to request a fixed working pattern for those who do not have one, after 26 weeks’ on a non-fixed pattern. Presumably this right will be similar to the right to request flexible working, i.e. a series of procedural requirements an employer must follow, but – broadly – considerable discretion for the employer to refuse, with very limited financial penalties if breached.
  • There are also plans for a single enforcement body to ensure ‘vulnerable workers’ (there is no specific definition for who this term applies to) are better protected; create new powers to impose penalties on employers who breach employment agency legislation like non-payment of wages; and bring forward legislation to enforce holiday pay for vulnerable workers.

The Government appears to have prioritised the following:

  1. The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 comes into force on 6th April 2020. It provides that the Written Statement of Employment Particulars must be given from day one of employment. We have been advising our clients to do this for many years because it avoids uncertainty, so we recommend that it is sent along with your Handbook, with the offer letter so avoiding slip ups on day one, and just because it looks professional and, therefore, needs early action. It also changes the rules for calculating a week’s pay for holiday pay purposes, increasing the reference period for variable pay from 12 weeks to 52 weeks. This may make it easier for some employers to calculate out average holiday pay, especially where pay varies seasonally.
  2. The Agency Workers (Amendment) Regulations 2018 will abolish the Swedish Derogation for Agency Workers. It also comes into force on 6th April 2020. Current law gives employers the ability to pay agency workers less than their own workers in certain circumstances.
  3. The Employment Rights (Miscellaneous Amendments) Regulations 2019 extends the right to a Written Statement of Terms and Conditions to workers (previously just employees), also on day one, increases penalties for aggravated breaches of employment law from £5,000 to £20,000, and lowers the percentage required for a valid employee request for the employer to negotiate an agreement on informing and consulting its employees.

Other changes as listed will only affect those clients who employ more than 250 employees, thus classing them as large employers.

Start gathering evidence for Executive Pay Reporting

Rules coming into force on 1st January 2019 mean that UK quoted companies with more than 250 employees will have to report on ratios between the CEO and employees’ pay and benefits.  The requirement applies to financial years beginning on or after 1st January 2019, so the first tranche of reporting will start in 2020. However, affected companies should gather their evidence in good time to be able to calculate their pay ratios by the deadline. The information will have to be included in the Directors’ Remuneration Report.

Publish Second Gender Pay Gap Report

Employers with 250 or more employees on the “snapshot date” (5th April in the private and voluntary sectors) must report on their percentage gender pay gap annually within 12 months of that date.  This means that the deadlines for the second round of reports are 30th March or 4th April 2019.  Employers need to gear up to publish their second report, if they have not done so already.

Summary

Even though the Government is currently embroiled with issues surrounding Brexit some of the changes listed above are actually of real significance so should not be ignored.

 

 

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

 

Reportable Accidents

The HSE has just updated their Accident Book so that it is GDPR compliant. It is, therefore, topical to refresh our minds regarding what data is needed to be collected when people get injured or harmed at work.

The purpose of an Accident Book is:

• because it is a legal requirement for all organisations to record certain types of accidents involving employees, contractors and visitors in the workplace;
• it records all accident information in one place;
• it should be simple, clear and easy to complete for those who fill it in;
• it forms the initial part of any necessary accident investigation that may subsequently need to happen;
• aids management of health and safety at work – preventing further injuries and controlling costs;
• the record forms part of any subsequent legal prosecution or personal injury claim;
• it should comply with current legislation, including RIDDOR, GDPR and HSE standards;

Reporting to the HSE and the recording of accidents are legal requirements regarding any Death, certain Injuries, (occupational) Disease or Dangerous Occurrences – hence the terms RIDDOR, with the final “R” standing for Regulation.

RIDDOR also requires that, since 6 April 2012, you must legally report any work related injury or illness that results in a person being off for more than seven consecutive day, not counting the day of the accident, but including any weekends or other rest days.

Perhaps what is less well known is that, all occupational injuries that result in a worker being away from work, or unable to do their full range of normal duties for more than three consecutive days, should still be recorded as part of your accident data. I term these as “lost time incidents”. Whilst employers normally keep sickness absence records, I strongly suspect that injuries where people are away from work for more than three days but return to work within the seven day self-certified period of absence, do not form part of the accident data, yet such data is a valuable source of information to help improve the management of health and safety. Why? Well, by using this data you should be able to amend, and hopefully improve, your risk assessments. It should also help to identify solutions to potential risks, and thus prevent reoccurrence.

Reportable Diseases

Perhaps what is least understood is that Regulation 8 of RIDDOR requires employers (and self-employed) people to report cases of certain diagnosed reportable diseases which are linked with occupational exposure to specified hazards. The reportable diseases and associated hazards are set out below.

Carpal Tunnel Syndrome: This Syndrome is caused by compression of the median nerve, which controls sensation and movement in the hand. It is not always caused by work-related factors. Typically, workplace risks associated with this are where the person’s work involves regular use of vibrating tools, e.g. sanders, grinders or chain saws, or, indeed lots of frequent keyboard work.

Cramp of the hand or forearm: Where the person’s work involves prolonged periods of repetitive movement of the fingers, hand or arm. The condition is usually characterised by a person being unable to carry out a sequence of what were previously well co-ordinated movements. Again this too can be due to repetitive keyboard work. One acute incident of cramp which may take place in the course of work is not reportable.

Occupational Dermatitis: Where the person’s work involves significant or regular exposure to a known skin sanitiser or irritant such as a reaction to certain types of soaps or hand cleaners. Construction work, health service work, printing, paint spraying, agriculture, horticulture, cleaning, catering and hairdressing are all associated with occupational dermatitis.

Hand Arm Vibration Syndrome: Where the person’s work involves regular use of percussive or vibrating tools, or holding materials subject to percussive processes, or processes causing vibration. Other names used to describe this include vibration white finger, dead finger, dead hand and white finger.

Occupational Asthma: Where the person’s work involves significant or regular exposure to a known respiratory sensitiser. In particular, this will include any chemical with the warning ‘may cause sensitisation by inhalation’. Known respiratory sensitisers include epoxy resin fumes, solder fume, grain dusts, wood dusts and other substances. Asthma is a common condition in the general population. So if there is good evidence that the condition was pre-existing, and was neither exacerbated nor triggered by exposure at work, the condition is not reportable.

Tendonitis or tenosynovitis: In the hand or forearm, where the person’s work is physically demanding and involves frequent, repetitive movements. Tendonitis means inflammation of a tendon, and tenosynovitis means inflammation of the sheath (synovium) that surrounds a tendon. Workers who undertake physically demanding, repetitive work are at increased risk of developing these conditions, or activities involving constrained postures, or extremes of movement in the hand or wrist.

A reportable disease must be diagnosed by a doctor. Diagnosis includes identifying any new symptoms, or any significant worsening of existing symptoms. For employees, they need to provide the diagnosis in writing to their employer. Doctors are encouraged to use standard wording when describing reportable diseases on written statements they make out for their patients.

The HSE, as well as their enforcement counterparts in local authorities, use the information reported about serious incidents and cases of disease to identify where and how risks arise, and whether they need to be investigated? The information also allows them to target their work, and provide advice on how to prevent work-related deaths, injuries, ill health and accidental loss.

Accident Books and the Data Collected

Since May 2018, Accident Books must now be GDPR compliant with the information stored in compliance with GDPR principles, and your organisation’s data protection policies.

Whilst you do not have to purchase and use the HSE version of he Accident Book (Click here for the link to HSE Publications), you do need to ensure that your records comply with the necessary data you need to record following any form of accident. However, it is what you do with this data next that is so important.

Start building up a picture of where accidents are happening. Is there a certain time of day when more accidents happen? What types of accidents are happening? What are the causation factors, are they mainly down to, e.g. manual handling, or perhaps slips, trips or falls? Are certain groups of workers more prone to accidents, and what activities were they doing at the time? Converting this information into statistical bar charts and pictograms is a great way of visibly identifying key trends.

Ideally this data should be regularly submitted to Senior Management, along with recommendations on how to address future incidents, as all of this information should be able to tell you what you need to be doing differently to address accidents. This invariable means communicating with people on new, or revised safe working practices, and training people in these systems. Sadly, in our experience, employers often only consider whether they should offer staff Personal Protective Equipment (PPE), which is, in fact, a last resort in the list of risk reduction control measures.

Finally, it is not uncommon for clients to tell me that over the last 12 months or more, they have not had any entries in their Accident Book. My take on this is always the same, which is to say “no you have had accidents; they simply have not been reported.” This is because people either cannot be bothered, or are genuinely concerned about the possible negative repercussions if they report an injury at work. Such perceptions are often not based on fact, so it is important to keep reiterating that all incidents, no matter how minor, need to be reported, as the purpose of recording such data is not to apportion blame, but to better understand what led up the accident or injury, and what could be done to make sure it does not happen again. These messages need to keep being communicated to help reassure people that reporting incidents are important. Then it’s about analysing the data, identifying trends and creating an action plan that will help improve health & safety going forward.

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

When the Supreme Court reached its landmark decision in July 2017 on the legality of Employment Tribunal fees last summer, the judges reviewed the evidence regarding the effect of fees on claims, and noted there had been “a dramatic and persistent fall in the number of claims” since fees were controversially introduced in 2013. They decided that the fees were wrong in several respects, and the Government immediately revoked them.

At the end of 2017, the number of claims lodged had risen by two-thirds since the Supreme Court’s decision. Recent tribunal data has shown that the number of cases brought by individuals in the UK increased by 118% in the three months to the end of March 2018, compared to the same period last year.

ACAS statistics on early conciliation make interesting reading. An employment law claim cannot move forward until ACAS has been informed, and early conciliation has ended.  Early conciliation can be requested by either the employee or the employer; however, there is no requirement for the other side to have to agree to the early conciliation proposal.  Total notifications have risen by 28%, or by 500 per week since tribunal fees were removed.  The significant rise in the number of claimants after the Supreme Court ruling seems to confirm that the fees were acting as a deterrent.  Removal of the fees has potentially lifted a significant barrier to access to justice in the employment law context, which has to be a good thing.

Much of the growth in cases has come from a return of what might be considered low-value claims, such as unpaid wages and holiday, which have increased by 137%. The returns on such cases might previously have been considered not worth pursuing, as many people who had valid claims could not afford to make them, so this increase is not surprising.  A lot of businesses would gamble on the fact that they would not be taken to court.  Now, many are reverting back to a more risk-averse approach.

A rise in tribunals was perhaps inevitable, given the legacy of cases that employees were reluctant to bring during the period of tribunal fees. This appears to suggest that disgruntled employees are now more inclined to take matters to tribunal, or at least, start the process, thus applying possible pressure on employers to settle.  Fees were undoubtedly a substantial factor; the other reason for the decline in tribunals has been the recovery in the economy and job market.  A lot will depend on the general state of the economy.  In many areas or professions/trades at the moment, if someone loses their job they can probably walk into something better rather than fight a claim.  If there is a continued increase in cases, it is likely to be either being due to a decline in the job market, or a statistical anomaly such as a glut of holiday pay or equal pay claims.

While claims are unlikely to increase to the level they stood at before the introduction of fees, the tribunal offices up and down the UK are very busy, with hearings regularly being cancelled at the last minute, and judgments taking much longer to produce than the four-week period users of the Tribunal system are told to expect. There is some concern regarding how the Employment Tribunal will cope with the number of claims being made, since the tribunals were slimmed down to deal with an average of 40-50,000 claims a quarter. If claims grow to 100,000 in that same time frame, it will increase the time required to dispose of them. Many tribunals have lost some of their part-time judges, and now that claims have been ramped up, the tribunal system lacks the resources to cope.  The Court Service is recruiting, but that process takes a long time to appoint and then train them. They are mostly busy lawyers, so do not have a lot of time to give as part time judges.

Avoiding Claims

Losing a tribunal can have a big impact on a business’s bottom line, costing many thousands of pounds in compensation. This is in addition to the hundreds of hours of preparation and attendance, as well as the sleepless nights beforehand. There is also a substantial risk of bad publicity, and impact on employee morale. All these factors mean employers need to make sure that they have suitable measures in place to avoid a potential claim.

  • The best way is to ensure all employment policies and procedures are up-to-date. Also, all employees are given well drafted written particulars of employment. Good procedures should help employers to reduce their chances of all but the most frivolous claims.
  • All our clients have such policies and procedures, but in light of the sharp increase in tribunal cases, it would be prudent for employers to place a renewed emphasis on ensuring that all grievances and disciplinary matters carefully follow the procedures to comply with ACAS guidance. One of the most common causes of tribunals is not following a proper process. Make sure all staff; particularly Managers, are aware of the latest Handbook of Employment Policies, and who to ask for guidance if they are unsure on what is required to correct follow them.
  • Careful recruitment of suitable people, who have the skills and attitudes for the job, or the potential to acquire them, will minimise the risk of substandard work and potential for time consuming re-training and dismissals.
  • At the start of the induction period for both newly recruited employees and existing employees moving to a different job, the accountabilities and measures of performance in the job description should be explained fully. This ensures that employees are aware of what is expected from them, and how their performance will be measured. If an employee has not been properly trained, it is somewhat unwise to criticise substandard work. The employee can rightly argue that without the necessary knowledge and skills, it is not possible to do the job to the required standard.
  • There is no legal rule that states probationary periods must be used, but they can be a useful tool for dealing with issues early on. The normal rule is that in order to qualify to bring an ordinary unfair dismissal claim, an employee must have been continuously employed for not less than two years. Employers tend to have probationary periods to assess the new recruit. However, if an employee has fewer than two years’ continuous employment, then they can still dismiss after a probationary period. That does not mean an employer is safe to dismiss them without fear of tribunal claims. There are 26 automatic unfair dismissal reasons that do not require two years’ service – such as dismissal relating to pregnancy, or health and safety reasons. Some of the reasons, such as whistleblowing, carry uncapped compensation. In dealing with employees with fewer than two years’ service, it is still advisable to use the probationary period review, and a basic three step dismissal procedure. If you do not, there is a risk that the employee could claim an automatically unfair dismissal reason, or dismissal for a discriminatory reason.
  • Use your employee data to make sure your employees achieve their personal best. If an employee is underperforming, or is regularly absent, this could be a sign of a bigger underlying issue they may need help with. Reviewing employee data on a regular basis makes it easier to spot trends, and have early, informal conversations, rather than taking more heavy handed approaches that could end up at tribunal.
  • Managers need to be properly trained so they feel able to make difficult judgement calls. Providing regular training and discussing HR issues with your Managers will help ensure they’re able to handle any problems employees might be having, before they escalate.
  • Create and maintain a culture of open communication, as well as fair and honest feedback, so that problems can be nipped in the bud.
  • Do not delay meetings, or hope problems will ‘go away’. Managers are often comfortable dealing with issues of misconduct, but can shy away from dealing with performance issues. An employee is more likely to turn their performance around if concerns are highlighted at an early stage rather than if matters are left to fester. Conflict can be difficult, but it rarely goes away of its own accord. Managers can be taught some basic low level mediation skills which should help diffuse conflict before it bubbles up.
  • Treat employees equally, as it helps avoid resentment and discrimination cases can arise well before the two years required for unfair dismissal. Take care not to unduly criticise or humiliate a poorly performing employee in front of colleagues. If you do, there is a risk that the employee will resign and claim constructive unfair dismissal for breach of trust and confidence (assuming they have two years service).
  • Consult over change, as disputes often arise because of poor communication. In many cases, such as redundancy, or changing contractual terms consultation is a major legal requirement.
  • Encourage Managers to keep a clear evidence trail of how they addressed an employment issue, and their decisions about an employee. Audit trails are key to defending a tribunal case; plan ahead and always get everything in writing.
  • If offering training and support results in a positive outcome, this is less time consuming and costly than going through a dismissal procedure and recruiting a replacement. Being able to demonstrate that an employee has been given support and the opportunity to improve will greatly improve the employer’s chances of making a fair dismissal if this becomes necessary.
  • Ensure you get professional advice and support to avoid making a mistake, and then having to go for resultant damage limitation. Prevention is always better than cure.

Do what you can to follow your internal policies and procedures before something becomes a problem. If you are not feeling that patient or optimistic, then a Settlement Agreement might be the way forward. Performance management can be time consuming, and sometimes disciplinary issues are not clear cut. The alternative is for the employer to explore a settlement. This is not a DIY activity, as the rules around them are complex. Professional handling makes all the difference.

Dealing with a Tribunal Claim

Employment Tribunal claims are still rare but do happen to even the nicest and most cautious employers. It can be unsettling to receive a phone call from ACAS seeking early conciliation, and even more so to get a tribunal claim form through the post. At that point, emotion can get in the way of rational decision -making. All circumstances will be different, and we are more than happy to help employers to prepare for and win at Tribunal.

  • Control the amount of legal costs and time that is poured into defending an Employment Tribunal claim. Do not allow a point of principle (for example, the wish to defend an unmeritorious claim) to take precedence over simple economics. Early resolution via ACAS may be the most financially viable approach.
  • The other way to avoid a tribunal claim is by a Settlement Agreement, which can still be done after employment has ended, and tends to be more appropriate than an ACAS COT3 form, which do not tend to address complex issues such as Restraint Clauses or Intellectual Property, particularly for senior people.
  • Make an informed decision about resourcing or settling the claim, based on the overall size of the claim, as well as being realistic about the chances of success in defending the claim. Bear in mind the amount of compensation that a successful claimant is likely to be awarded, and do the maths (with our help). Going to tribunal can be described as gambling at the casino of justice, so settling limits exposure and brings closure.
  • Think through the wider implications of fighting an Employment Tribunal claim. These are the potential for negative publicity, as well as the time and cost of getting ready and attending the tribunal. This is likely to be two days for a simple unfair dismissal claim, and at least a week for a discrimination claim. Being in the witness box can amount to the worst fears of any employer. Even confident, competent Managers can be poor witnesses.
  • Be aware that full vindication for either party is rare from an Employment Tribunal. Even if you win, you might still be criticised, or you might win some claims but lose others, e.g. the dismissal was fair but it was discriminatory in some respect.

It is possible that the Government will introduce another fee regime in the future, but that is unlikely to be for quite some time. Employers need to focus now on prevention instead of cure to avoid getting tribunal claims, and possibly discussing a commercial settlement where appropriate.

 

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