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.


The subject of Brexit is forever in the news, and is likely to remain so for at least another year. Given all the uncertainty and conflict, it would be easy to give up thinking about it and just wait and see. However, EU nationals represent a significant part of the UK’s workforce. Recent figures from the Office for National Statistics show that there are currently 2.28 million EU citizens working in the UK, representing 7% of the UK’s total workforce.

The workforce is a vital part of any organisation, and employers in the UK have benefited enormously from the migration of workers from Europe. Following the Brexit vote, and the subsequent uncertainty, businesses should be mindful that employees could be concerned about their future in the UK, and may decide to relocate back to the EU.

Replacing these individuals when free movement ends, and European nationals are subject to an immigration regime, could be tricky. It could restrict the work that businesses can deliver, and potentially reduce revenues. This could be a serious issue for UK organisations, with many already suffering from a skills shortage due to the record high employment rate in the UK.

Navigating through the uncertainty of Brexit is a significant challenge that all UK employers must confront, and the needs of the workforce must not be overlooked.

Employment Law

This is unlikely to change much either before Brexit, as the present Government have other priorities. This would change assuming we had a different political party in place.

Following the decision to leave the EU, one concern was whether the present Government might repeal some of the legislation that came from the EU. The Government published a white paper which proposes that there will be no regression in employment laws, such as the Working Time Regulations, protection of employees’ rights on transfer of business undertakings (TUPE), discrimination laws and the current collective consultation requirements. This position could change, and once the UK leaves the EU, there may in the longer-term be a growing divergence between UK and EU employment law obligations. In practice, it is likely that much EU derived legislation will remain in force in the short-term, and in some cases, for the long-term.

David Davis, the previous Brexit Secretary, indicated that existing employment law will not be radically changed. He blogged that:

“Empirical studies show that it is not employment regulation that stultifies economic growth… Britain has a relatively flexible workforce, and so long as the employment law environment stays reasonably stable it should not be a problem for business. There is also a political or perhaps sentimental point. The great British industrial working classes voted overwhelmingly for Brexit. I am not at all attracted by the idea of rewarding them by cutting their rights.”

Free Movement of People

However hard or soft our exit from the EU may be there will be some changes to the free movement of people. The Government is planning for a soft exit on this matter, and has various plans to go with that.

By the time the UK leaves the EU in March 2019, European nationals living in the UK will be able to apply for settled or pre-settled status. A transition period will run until 31 December 2020, during which free movement will remain intact, and EU nationals can freely come to the UK.

Brexit and Settled Status

As part of Brexit negotiations, the EU and the UK have now agreed in principle to a transition period during which the free movement of EU workers will continue. The agreed transition period will run from 29 March 2019 – when the UK will leave the EU – through to 31 December 2020.

Three different processes apply, dependent on when the EU national arrived in the UK.

  1. EU/EEA nationals who arrived in the UK by 29 March 2019, and have lived in the UK for five years will be allowed to stay indefinitely by applying for “Settled Status”. Once granted, it will mean that individuals can live, work and enjoy the benefits of living in the UK indefinitely. They will be able to apply for British citizenship once they are eligible to do so.
  2. EU/EEA nationals who arrived by 29 March 2019, but have not been in the UK for five years will be able to apply for temporary status (or “Pre-settled Status”) to remain in the UK until they have reached the five years’ threshold, they will then be able to apply for Settled Status. Once granted, it will enable them to live in the UK permanently.
  3. Those who arrived in the UK after 21 March 2019, i.e. during the “implementation” or “transition” period. The Government announced in February 2018 that these individuals will be required to register a common process in other EU nations. Thereafter, these workers will apply for temporary status until they have been in the UK for five years. They may then apply for indefinite leave to remain.

Close family members (defined as spouses, partners, dependant children, grandchildren, dependant parents and grandparents) will be able to join EU citizens after Brexit, where the relationship existed on 31 December 2020.

The roll-out of the trial registration process for EU citizens shows that the Government is serious about its post-Brexit immigration strategy. Despite warnings from a wide range of industries, sectors and large employers, it appears committed to ending the free movement of workers.

Whilst this potentially signals trouble for employers relying upon EU workers, with a bit of planning, there are steps that businesses can take to both help and support existing EU worker employees, whilst at the same time seek to protect their business over the longer term.

Employers can start by conducting a gap analysis, which identifies their EU workers and inform them of the process for applying, and ensuring that they have access to up-to-date information. It is crucial that organisations should engage with, and provide reassurance to staff, who are worried about what Brexit will mean for them and their families.

One consideration is helping staff through the process of obtaining, or working towards settled status. If requested, employers should make personal information easy and quick to access – details such as start dates and proof of employment may be necessary for employees to start their journey towards formalising their residence. Some employers will choose to take this a step further by offering to cover the cost of their settled status application. This should help reassure workers, while also demonstrating their value to the organisation, encouraging them to stay in the UK. Understandably, not every business will be able to provide such a measure, but they can still give direction and assistance to walk them through the application process.

Employers should take particular care with EU national employees who are currently on, or contemplating going on, an assignment out of the UK. Time outside of the UK could affect an employee’s eligibility for settled/pre-settled status, and this should form part of the planning conversations to ensure that everyone who expects to return and work in the UK in the future is able to do so.

Because Irish citizens had free movement rights long before the UK entered the Common Market, then all Irish employees will still be able to come and go as they please, so are unaffected by Brexit in this context.

What Employers can do – Alternative Strategies

Consider using natural staff turnover, and recruiting who you need now from within the EU, rather than post Brexit.

As recruiting staff from abroad is going to become more difficult, employers ought to consider how they can upskill existing employees, in order to future-proof their businesses. On-the-job and/or external training can provide improved opportunities for keen-to-learn employees, with the added bonus for employers of a highly trained workforce. If you have not already done so, explore how you can take advantage of the apprenticeship levy to create new training opportunities in your business. Given what is being said about immigration, it would be prudent if you are applying for permission to recruit from abroad, to be able to show that you are doing all you can to ‘grow your own’.

Consider obtaining a Sponsorship licence if you do not already have one in place. Failure to do so now will increase Home Office scrutiny, cost and processing times. This option, however, is not for the faint hearted.  You may wish to get specialised help to ease the pain of the complications related to this.

Review your internal employment policies for inter-company transfer, and dealing with trips that your staff make in and out of the EU.

No Deal Brexit

UK employers should be alive to the possibility of a no-deal scenario, and ensure they understand the risks, and develop contingencies if the UK’s immigration system for non-EU workers is implemented for workers from the EU.

Much to employers’ and employees’ relief, there will be no mass deportations in the event of a “no-deal” Brexit – EU nationals working in the UK and UK nationals in the EU will not suddenly become illegal immigrants. But there will be complications for employers with staff who travel around Europe, or who post UK workers to an EU country.

In the event of a no-deal Brexit, the transition period until December 2020 will fall away, but this does not mean the UK will close its borders to new entrants. A new immigration system has not yet been designed, and free movement may well continue until a new system is devised, which should minimise disruption.

A further risk is the loss of employees (including key employees) who no longer feel entitled, or inclined, to stay if there is no deal.

Short term business travel is unlikely to be adversely affected. Both the UK and the EU already permit visa-free travel from many countries worldwide, and will likely want to do the same for each other.

The Future for Worker Movement

Prime Minister Theresa May’s announcement on 1 October 2018 that Britain will not continue to give EU nationals preferential immigration treatment after Brexit heralded the future of immigration between Britain and the EU. Britain has yet to decide what the immigration requirements are for EU nationals. Speculation on whether Britain will adopt “US-style” visas for travel and work has been considered, and May herself already indicated that waivers of visa requirements may continue on a reciprocal basis with countries (or regions) with which Britain agrees to these requirements.

The principal import of the Prime Minister’s announcement is that after 2020, EU nationals will need to apply for formal admission requirements in advance of moving to Britain, and may also face travel visa or pre-registration requirements. What these requirements will ultimately translate to will depend on continued negotiations and the input of key business sectors and stakeholders, such as the Migration Advisory Committee.

Employers addressing workforce needs should be closely evaluating their current EU pool in Britain, and the likely fluidity of travel and work assignments in the next 18 months.

Whilst the Government has reiterated that EU nationals do not need to apply for permanent residence, many are still choosing to do so. This may be because they wish to become British citizens before we leave the EU (in which case, under current naturalisation rules, they are required to hold a permanent residence document first). It may be because they are concerned that the volume of applications to be processed means there are likely to be delays in the new settled status being awarded, and they want the certainty of having permanent residence documentation, which will allow later applications to be fast tracked.

The Migration Advisory Committee acknowledges that employers who are trying to plan ahead are being stymied by uncertainty about the new regime. However, the tone of their report suggests any new system should not be sympathetic to those who pay low wages, or who fail to invest in training. We anticipate that the employers who will thrive under any new system will be those who have started taking steps now to become an ’employer of choice’.

Uncertainty

Employers will be expected to check EU nationals’ right to work in the UK post-Brexit, the immigration minister has told MPs, though there will be a period where it will be “impossible” for employers to differentiate between somebody who has applied for settled status, and somebody who has recently arrived in the UK.

The Home Affairs Select Committee was advised that employers will be expected to carry out right to work checks when recruiting an EU national. There will be a challenge around how EU citizens evidence their right to work, particularly if they have not yet applied for, or are going through the process of achieving, settled status during the transition period.  Any enforcement around the settled status scheme would not be overly rigorous early on, because it is “one of the conundrums that employers will face”, though employers will be expected to make reasonable checks, and “it will be an enormous challenge both for employers and for EU citizens”

Actions

There are a number of steps that you could consider now to help their EU workers and themselves.

  1. Conduct an audit of the current workforce. Employers should assess their current workforce to identify how many EU employees (and family members of EU nationals) they currently employ, and to ascertain how many of those individuals can meet the requirements of the EU Settlement Scheme.
  2. It would also be advisable for employers to ensure that their EU employees can provide appropriate evidence to show how long they have currently been living and working in the UK. On a wider scale, an employer may wish to consider how a more restrictive immigration policy after Brexit could affect its business, and its ability to recruit its workforce.
  3. Consult with EU employees. The priority must be to ensure they know they are valued, and that you wish to retain them. Employers do, however, need to be careful about any guidance they provide. Immigration advice is regulated, and it is an offence to provide immigration advice if you are not qualified to do so. The focus therefore should be on regular communication with employees about their intentions to stay or not and if they are planning to remain in the UK what progress are they making regarding applying for legal residency.
  4. Consider whether you would support employees with the cost of the applications required to secure their status in the UK. Applications for permanent residence cost £65 per person.

 

 

 

 

Please note that the contents of this newsletter are true at the time of publication, but this is a moving feast, so it is advisable to continue to keep abreast with Brexit developments, as indeed so shall we.

If you need help with how to go about conducting an audit, or any other assistance with preparing for Brexit, please speak to our Consultants.

So, you think how your staff sleep is none of your business? It’s about time we woke up to the importance of having a well-rested workforce. The view that ‘sleep is for wimps’ is a nonsense, and potentially dangerous.

British workers put in more hours than any other European nation, but still have low levels of productivity, and the reason for this may be staring us in the face. We are exhausted. We work long hours, and arrive home late. We don’t give ourselves time to unwind, perpetuating the cycle of poor sleep. British workers not only work longer than their European counterparts – they also have the highest rates of insomnia.

Poorly designed shift patterns, and long working hours that fail to balance work time with rest and recovery, can lead to fatigue, accidents, injuries and ill health. Shortage of sleep affects not just safety and the risk of accidents, health (physical and mental), but also productivity and creativity.

Fatigue

Fatigue is generally defined as a decline in mental and/or physical performance caused by prolonged exertion, sleep loss and/or disruption to the body’s internal clock. It is also linked to workload: workers are more prone to fatigue if their work is machine-paced, complex or monotonous.

Fatigue slows reactions, and reduces the brain’s information processing ability. It causes memory lapses, absent-mindedness, lower awareness and a fall in attention span. Importantly in a work environment, it also leads to risks being underestimated, reduced co-ordination and poor judgment calls. The result can be errors and accidents, ill health and injury. Another victim is productivity. Crucially, fatigue is often a root cause of major accidents, with examples including the sinking of the passenger ship the Herald of Free Enterprise, the Chernobyl nuclear disaster, and the Exxon Valdez environmental catastrophe. The Three Mile Island meltdown in 1979 and the aborted launching of the Challenger space shuttle were also both attributed to tired staff. In statistical terms, fatigue is implicated in 20% of major road accidents; it is calculated to cost the UK between £115 million and £240 million annually in work accidents alone.

Sleep Deprivation

What complicates sleep issues is that they can be interlinked with so many other conditions, all of which can affect our performance at work. If we don’t get enough rest, we build up a harmful ‘sleep debt’.

Obstructive sleep apnoea, which disrupts the breathing of sufferers whilst sleeping, is the most common cause of daytime sleepiness, and is directly linked to being obese. Currently, just over one-third of Britons are overweight, but this problem is predicted to get more severe as workers become increasingly sedentary. Not only is the immediate result of such disturbed sleep tiredness and irritability, it is also associated with heart disease and depression.

There are more than 80 known sleep disorders, from not being able to get to sleep to the inability to stay awake, yet staff can be labelled as being lazy or leading inappropriate lifestyles. All of these conditions can be suitably controlled, given the right treatment.

Bad Practices

Other contributing factors include smoking and excessive alcohol, and failing to exercise is all part of the mix. Poor sleep places you at high risk of many other major illnesses. It affects energy, relationships and overall wellbeing.

In a study of more than five million people, a shortage of sleep was linked to diabetes, high blood pressure, cardiovascular and coronary heart disease, plus obesity. Even depriving people of sleep for a few consistent nights damages the body’s ability to control blood glucose levels. Vaccines are less effective; immune systems are more open to infection. One study concluded that fewer than seven hours of sleep increased the chances of catching a cold by a factor of three.

Studies around the world into the occurrence of diseases come to much the same conclusion. Short sleepers and long sleepers are more likely to suffer from a range of ailments, and have shorter lives. Too little sleep at the wrong time of day is linked to diabetes and obesity. NHS statistics show that shift workers are more likely to have “fair to bad” general health, and “limiting longstanding illness” with the Office for National Statistics figures showing them taking significantly more time off sick. Lack of sleep seems to have a greater effect on non-manual workers in sedentary jobs. Whether a loss of sleep is the symptom of less healthy lifestyle is hard to judge.

There are many reasons why people are unable to sleep, or can’t get the hours of sleep they need. The causes are often outside the workplace, but the effects are felt at work and may impair an employee’s ability to carry out their duties. Work can also cause excessive stress, which may lead to sleep deprivation or poor sleep. In some sectors, this can present a risk to the safety of colleagues or members of the public.

What’s Right?

The received wisdom is still that eight hours’ sleep a night is about right. In general, people who sleep for fewer than six hours a night are termed short sleepers; those getting on for 9 or 10 hours are long sleepers. Poor sleep and poor health feed off each other. Less fit people tend to exercise less and sleep poorly, becoming exhausted and less inclined to exercise in a vicious circle. Chronic sleep deprivation, defined as under-sleeping by an hour or two every night over a consistent period, has been linked to poor health outcomes.

Legal Issues

Employers have a legal duty to manage risks from fatigue and sleep deprivation, irrespective of any of their workers’ willingness to work extra hours, or preference for certain shift patterns. Employers have a duty of care to protect not just the health, safety and welfare of their workers, but any other people who might be affected by their business. The following general principles apply.

  • Health and safety law requires employers to consult with their employees on all matters of health, safety and welfare. They can do this either directly or, if there are health and safety representatives, through them. Employees may prefer certain shift patterns that are unhealthy and likely to cause fatigue. The HSE are keen on consultation, but their preferences shouldn’t be granted automatically if they are unhealthy or cause fatigue. A wiser approach is to have limits on working hours, overtime, shift-swapping and on-call working. This must be monitored and enforced, perhaps with a robust hours recording system.
  • The Working Time Regulations 1998 (“WTR”) lay down the minimum legal requirements on how to organise working time. Employers are required not just to satisfy the provisions of the WTR, but to proactively consider fatigue a risk factor in their business like any other health and safety risk. Whether the business involves major hazards or not, employers are required to set up appropriate systems to control potential causes of fatigue, such as shift patterns and excessive overtime. Some sectors (such as aviation or HGV driving) have specific regulations to guard against fatigue.
  • The legal duty is on employers to manage risks from fatigue, irrespective of any individual’s willingness to work extra hours, or preference for certain shift patterns for social reasons. Employers have a legal duty to manage fatigue risks, even when employees are keen to work overtime, drive for long hours creating a long working day in preference to booking into a hotel or B&B over night, or request specific shift patterns for social reasons.
  • Employers who ignore the importance of encouraging staff to get sufficient sleep could land themselves in hot water, under the Corporate Manslaughter and Homicide Act.

Key Principles in fatigue

  1. Fatigue needs to be managed, like any other hazard.
  2. It is important not to underestimate the risks of fatigue. For example, the incidence of accidents and injuries has been found to be higher on night shifts, after a succession of shifts, when working hours are long and when there are inadequate breaks.
  3. Changes to working hours need to be risk assessed. Consider HSE guidance, such as the Fatigue and Risk Index Tool, a risk assessment method for use with rotating shift patterns.
  4. There are many different shift work-schedules, and each schedule has different features. This sheer diversity of work and workplaces means that there is no single optimal shift system that suits everyone. However, a planned and systematic approach to assessing and managing the risks of shift work can improve the health and safety of workers.
  5. There are a number of key risk factors in shift schedule design, which must be considered when assessing and managing the risks of shift work. These are the workload, the work activity, shift timing and duration, direction of rotation and the number and length of breaks during and between shifts.
  6. The WTR require employers to offer night workers health assessments – although they don’t have to accept.
  7. Consider people with underlying health conditions that may seriously affect their sleep patterns, including women undergoing a difficult menopause.

What can Management do to improve workers’ sleep?

Organisations should protect employees against the worst effects of exhaustion, especially in sectors where staff are required to drive, operate machinery, or expected to deal with considerable amounts of constant pressure.

  • Understand the importance of sleep quality and recovery to your employees. Inform employees that you recognise the impact of sleep deprivation.
  • Improve working styles – a long-hours culture leads to poorer sleep.
  • Be aware that constant tiredness can be a symptom of serious illness.
  • Consult employees about their sleep, and discuss any problems they experience, with a view to getting the right amount and quality of sleep.
  • Suggest good sleep hygiene practices – see below.
  • Ask employees what will help them, and encourage them to take the lead on implementing change.
  • Identify the threats to good sleep in the workplace, and the problems your employees face.
  • Develop a robust system of recording working hours, overtime, shift-swapping and on-call working.
  • Conduct a workplace assessment for good lighting and ventilation.
  • Where possible, maximise access to natural light. Research tells us that employees whose offices receive more sunlight sleep better and have higher levels of wellbeing

Responsibility

Employees also have a duty to take reasonable care of their own health and safety, and that of others at work that may be affected by their activities. Explain to them that while work is important, it isn’t everything, and taking time to relax, recharge and taking breaks are crucial.

There is also a difference between sleep and rest, people need to know that their lifestyle is important, and they need balance and enough sleep. Many employees have hectic social lives, and enjoy late nights. Sleeping too little during the week and trying to close the gap at weekends is another cause of feeling sleep deprived. The advent of laptops and mobile phones is making it harder for young people in particular to drift off. Blue light from electronic devices makes us feel less sleepy. Digital socialising also winds the brain up at a time when we should be winding down for a peaceful night’s sleep. The top tip from ‘Why We Sleep’, the bestseller by Prof. Matthew Walker, is to stick to a sleep schedule that involves getting up the same time each day regardless of what time you went to bed.

There have always been early-risers and night-owls; the advent of artificial light makes night-owls even more inclined to stay up comfortably, and alert into the early hours. Some 30% of us are morning people; another 30% are evening people. The remaining 40% are in between. We have limited control of our body clocks. Night-owls and late-risers can try to alter their habits by cutting their exposure to light in the evenings, while increasing their light exposure during the day.

Positive Measures – Provide knowledge

Include information and guidance on sleep and recovery for Managers and employees as part of a health and wellbeing strategy. Monitor how well it is working. Consider fatigue as part of the risk assessment process, particularly for hazardous activities such as driving. Advise drivers not to wait until it’s too late. Head nodding and eyes closing are not early warnings; they are signs they are falling asleep. Encourage everyone to take proper rest breaks.

Signpost Managers and employees to information about better sleep circumstances and recovery. We have drawn heavily on work by Business in the Community and Public Health England Sleep Recovery Toolkit published in February 2018. The HSE document – Good Practice Guidelines and their guidance about shift working is also a good reference guide. To quote Matthew Walker – “Sound sleep is sound business”.

 

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

ACAS has published new guidance to assist employers in preventing workplace discrimination on the grounds of religion or belief. Many employers are unlikely to see the relevance, believing that they don’t discriminate and religion is not something that does or should arise at work.

The fact is that the guidance covers a substantially wide range of employment situations, or discusses policies and practices that might lead to discrimination, including recruitment, dress codes, religious holidays, working on holy days; prayer during the working day, food, fasting and drinking alcohol is significant. Other employers might say that they do not currently employ any Muslims, but that misses the point that most legal religious cases have been about Christians.

The guidance contains a helpful reminder of the different forms of unlawful discrimination, highlighting the need to ensure that apparently neutral policies do not inadvertently disadvantage those with a certain belief (indirect discrimination). It also reminds employers that discrimination can happen when someone wrongly assumes an employee has a particular faith (discrimination by perception), or when an employee is associated with someone else from a particular religion; for example, through marriage or friendship (discrimination by association).

The guidance makes clear that the Equality Act 2010 also protects those who do not practice a particular religion, or who have no religion, and provides some assistance with the kinds of philosophical beliefs which will be protected. Case law is still unclear about what kind of philosophical beliefs will and will not be protected under the Act. Protected beliefs are those which are genuinely held so are more than an opinion; relate to a weighty and substantial aspect of human life and behaviour; are clear; cogent; serious; important; worthy of respect in a democratic society; compatible with human dignity; and do not conflict with the fundamental rights of others. Humanism, atheism and agnosticism are broadly accepted to qualify as protected beliefs. It is likely that vegetarianism and veganism would also qualify.

The new guidance helps raise awareness of situations where discrimination can arise, (namely recruitment, requests for annual leave, dress codes, and training and development opportunities), regardless of intention, and is helpful in alerting employers to both potential pitfalls and good practice. According to the guidance:-

  • Recruitment is a key area to avoid discrimination, particularly when advertising for the role an employer is/are trying to fill. The job advert should be published widely and it is advised not to mention religion in the posting.

  • Requests for annual leave during religious festivals or for religious reasons should be considered carefully and sympathetically. There should also be an understanding that employee performance may be affected during fasting.

  • Employers should take a flexible approach towards dress codes where possible.

  • Finally, opportunities for promotions should remain equal; it would be discriminatory if an employer discouraged an employee from taking a promotion because of their religion. There should also be an understanding around training and development in order to gain a promotion, it should be organised so that an employee with religious commitments does not miss out.

We particularly like their Top Ten Myths, which are:

Myth: I can’t be accused of discriminating against someone with the same religion as me.

Fact: If you treat someone unfairly because of their religion it would be discrimination, whether or not you were the same faith.

Myth: A philosophical belief is simply what I believe in, so my beliefs are protected.

Fact: What qualifies as a philosophical belief is not always clear cut. There are guidelines, but they are only guidelines. And, the final decision whether someone’s beliefs amount to a ‘belief’ in their individual case will rest with an Employment Tribunal or Court.

Myth: Employees are only really protected against religion discrimination when they are devout in their faith, or work in religion.

Fact: No, they are protected against unfair treatment whether they are devout or not. And, for example, because their friend holds a particular religion, or they are thought to follow that religion, even when they don’t.

Myth: Away from work, I can say what I want regarding my religion or belief on social media – it’s my profile and my page.

Fact: An employer has a right to ensure an employee’s personal views are not mistaken for its own. It should have a policy on social media including use away from work.

Myth: As long as a Manager is canny in their questioning in the interview, they can still get away with finding out a job applicant’s religion if they want to.

Fact: Even a question such as ‘Which school did you attend?’ is likely to be seen as discriminatory if fishing for the candidate’s religion and the question is irrelevant.

Myth: A request for leave for a religious festival takes precedence over a request for a family holiday.

Fact: No, religious observance does not necessarily override any other good reason for leave.

Myth: An employer’s dress code must be strictly followed, otherwise there’s no point.

Fact: A strict dress code would have to be for very good business reasons to satisfy an Employment Tribunal. Better to take into consideration that some employees may wish to dress in a certain way because of their religion or belief.

Myth: An employee can refuse to do aspects of their job because of their religion or belief.

Fact: Not if there are good business reasons why they are part of the job, such as being essential duties, and the employer’s decision is proportionate.

Myth: An employee doesn’t have to follow a rule like having a photo ID pass, if having their photo taken is against their religion or belief.

Fact: Employees should understand that their employer has a right to expect certain things to happen for good business reasons, such as having a photo ID pass for security reasons.

Myth: A colleague can’t, in any circumstances, lecture me about their religion or belief.

Fact: They can’t force their views on you when you don’t want to hear them. However, if you bait them, you are less likely to be able to claim harassment.

ACAS encourage employers to make sure their workplaces are ‘inclusive’ so that employees feel:

  • they belong;

  • are not disadvantaged or under-valued because they hold a certain religious faith or philosophical belief; and

  • their beliefs and/or religious observances are respected;

The guidance addresses the issue that Britain is “an integrated and cohesive society with a proud tradition of religious tolerance”. Flexibility in this regard is encouraged and dress codes restricting religious symbols should not be set if there is otherwise no interference with the employee’s work.

Dress Codes

The Government Equalities Office (GEO) has published new guidance on dress codes and sex discrimination for employers, employees and job applicants.

The new guidance Dress Codes and Sex Discrimination – what you need to know, was promised by the Government following a parliamentary inquiry into dress codes, which was conducted as a result of extensive media coverage in 2015 of a receptionist sent home for refusing to wear high heels; what has come to be known as “Heel-gate”. The guidance provides advice for employers on their legal responsibilities when introducing a workplace dress code policy, and advice for employees on what action they can take if they consider their employer’s policy to infringe their rights.

The guidance confirms that dress codes can be legitimately enforced by employers, but any less favourable treatment because of sex could amount to direct sex discrimination. It reminds employers that dress policies for men and women do not have to be identical, but standards imposed should be equivalent. It also warns that requiring any gender-specific items, such as high heels, make up or have manicured nails, is likely to be unlawful.

Employers are recommended to consult with staff prior to introducing or amending a dress code, and should take into account the health and safety implications of any dress requirements. Notably, the guidance advises against gender specific prescriptive requirements, such as a requirement to wear high heels, and prohibiting religious symbols that do not interfere with an employee’s work.

Listing examples, the guidance says that requiring female employees to wear high heels but not having footwear requirements for men is likely to constitute direct discrimination. It can also amount to indirect discrimination against disabled employees, as heels can exacerbate mobility difficulties, or increased risk of falling for those who are visually impaired. However, the code has a lot of common sense advice. Requiring receptionists to dress smartly to portray positive public face and image is quite lawful because it is not gender specific. Requiring all employees to wear smart shoes will also be lawful because it is not gender specific.

The guide does not intend to be specific, as it uses such phrases as “it is best to” or “likely to be”. The law is not clear on all of these issues, so guidance for employers is very important to avoid discrimination claims in the workplace, and can assist in creating a positive working environment for everybody.

The approach of the UK Government is to be commended, albeit the ACAS Guide four years ago, which we commented on in our Client Newsletter No. 85 back in 2014, is arguably more comprehensive. It is right that to require or encourage women to dress provocatively is likely to be unlawful, and the guidance specifically comments that dress codes must not make employees vulnerable to harassment by colleagues or customers.

It is, however, arguable that the more contentious issue is how dress codes impact on religious discrimination. The guidance states that employers should be flexible, and not set dress codes that prohibit religious symbols that do not interfere with an employee’s work. In cases of indirect discrimination, it is open to an employer to potentially justify an act of discrimination if it is a proportionate means of achieving a legitimate aim; for example, staff being asked to wear a uniform to project a polished image to clients. However, if the aim is to appear smart and professional, it is difficult to see how this cannot be achieved by wearing flat shoes, a short-sleeved shirt or a headscarf.

To avoid your dress code being discriminatory:

  • The dress code should apply equivalent standards, but this does not mean exactly the same for both sexes, and minor deviations to accommodate religious beliefs are quite common, e.g. letting women wear trousers.
  • Make decisions based on the effect on the business, and the impact on the employee’s ability to do their job.
  • Consider the impact on any people in the employee’s care (or others).
  • Look out for protected groups that might be adversely impacted more than others.
  • Consider if exceptions can be applied, e.g. religious jewellery, reasonable adjustments for disabled employees.
  • Consult with employees/unions on your dress code requirements.
  • Would the employee have to leave their job? Consider whether there is a compromise both parties can accept – e.g., it might be wearing a symbol as a brooch rather than hanging on a chain.
  • Consider health, safety and hygiene issues, e.g. will particular shoes make staff more prone to slips and trips, or injuries to the feet?
  • Clearly communicate your policy, and make it clear that failure to comply will be a disciplinary matter.
  • Be consistent in the application of the policy and any disciplinary action.

If the matter goes as far as an Employment Tribunal, employers should understand that Tribunal/Appeal Courts will consider if there is any direct discrimination, and balance the right to display a religion or belief against the employer’s business reasons in the particular case. A ruling will depend on the facts. While some employers will have explicit dress codes, in other situations such codes may be implied. It is important that there is clarity for employees and applicants regarding an employer’s workplace policies, and that decisions relating to employment matters are objective and justifiable.

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

 

The Size of the Problem within the UK

A TUC report on sexual harassment in the workplace has found it appears to be at endemic levels. According to the survey, 52% of women have experienced some form of sexual harassment at work. It was carried out by YouGov, and is based on the opinion of women who are working, or who have ever had a job, and were happy to be surveyed about this topic, from an overall sample of British adults. If the figures are representative of the UK workforce as a whole, they make grim reading.

Of those who have reported sexual harassment, 12% said that the incident was not even acknowledged by their employer. Most respondents said the incident was acknowledged, but 31% reported no action was taken.

Sexual harassment is hard to spot and deal with. It can happen in private settings with no witnesses, in poor workplace cultures where peers perceive it to be the norm, or in plain sight when the perpetrator relies on the victim not wanting to cause a scene by ‘making a fuss’. It can be difficult to report workplace harassment for fear of job loss, retribution and no consequence for the perpetrator.

Recent high profile developments in business, politics and the entertainment industry indicate the increasing potential for claims. The first claim against Harvey Weinstein has been lodged in the UK, emphasising changing social norms. There is likely to be a knock-on for businesses, with claims frequency set to increase. Sexual harassment will continue to be a high profile issue. The sheer volume of people speaking out about the problem means that a new zero-tolerance attitude is emerging. Insurance companies are bracing themselves for a vast number of historical sexual harassment claims.

The Nature of the Beast

Sexual harassment is just one form of discrimination, and much of this Newsletter will focus on sexual harassment, but it could equally well apply to any other form of discrimination or harassment.

There are a number of ways that complaints and concerns about harassment can come to the attention of an employer. These can include:

  • an employee raises the matter quietly and informally with a Manager;
  • an employee raises the matter formally as part of the organisation’s grievance or other process;
  • a member of staff or Line Manager notices behaviour that concerns them;
  • if someone witnesses sexism in a workplace, but does not work there, they can usually raise their concern with Management by making a complaint;

Sexual harassment might be obvious, insidious, persistent or an isolated incident. It can also occur in written communication, by phone or through email, not just face-to-face. It is likely to be manifested in:

  • spreading malicious rumours, or insulting someone, unwanted physical contact;
  • leering at an employee’s body;
  • unwelcome remarks about a person’s age, dress, appearance, or marital status, jokes at personal expense, offensive language, gossip, slander;
  • posters, calendars, graffiti, obscene gestures;
  • coercion for sexual favours;

The Legal Perspective

It is well established from case law that a single act can fall within the definition of unwanted conduct, under the Equality Act 2010. No Employment Tribunal would have sympathy for a harasser who was dismissed after committing a one-off serious act of sexual misconduct.

The motive of the “harasser” is irrelevant in harassment claims. The key issue will be the effect on the person who is on the receiving end of the behaviour. It is also possible for someone to claim harassment when the offending remark or action is not directed at that person. A person overhearing a sexist remark could claim sex discrimination, even if the perpetrator did not realise that he/she was listening.

Sexual harassment is traditionally thought of as a man’s unwanted actions towards a woman. But there is nothing to stop a man claiming harassment against a woman, or an individual claiming to have been harassed by someone of the same sex.

Implications

Claims are difficult and time consuming to defend. The loss of public reputation can be considerable and the stress of being the ‘accused’ or even just a witness can all detract from ‘normal business.’ Harassment claims present a number of difficulties for organisations. It is a form of discrimination claim that offer claimants a less evidentially onerous route to obtaining compensation. There is no requirement to prove foreseeability of loss and employment tribunals can award damages for ‘injury to feelings’ without proof of psychiatric injury. Employees can claim for injury to feelings and these awards are called Vento Bands.

Since April 2018, the Vento bands are as follows:

  • a lower band of £900 to £8,600 (less serious cases);
  • a middle band of £8,600 to £25,700 (cases that do not merit an award in the upper band); and
  • an upper band of £25,700 to £42,900 (the most serious cases), with the most exceptional cases capable of exceeding £42,900;

Bad cultures will lead to bad employee relations and morale, which may well manifest itself in absence levels and labour turnover.

Positive Actions

In order to meet their responsibilities, and to protect themselves against sexual harassment claims, employers should undertake the following preventative measures:

  • The first thing you need is some sort of clearly written and well communicated policies and procedures in place, to ensure fair treatment for all workers. A Dignity at Work Policy goes beyond an Equal Opportunities policy.
  • These policies should reflect and acknowledge Senior Management’s commitment to tackling and eradicating sexual harassment. Any culture change needs to be led from the top.
  • Educate all employees on the organisation’s harassment policy.
  • Develop a culture of respect and gain an understanding of what constitutes acceptable and unacceptable behaviours.
  • Ensure that everyone is aware of the consequences of violation.
  • Maintain a procedure that allows the victim to file a complaint with a person other than the victim’s Line Manager.
  • Make a positive statement that people who report will be supported and protected.
  • Train Managers to sensitively and fairly address complaints.
  • Managers need to recognise what is, and is not, acceptable, and how to deal with the issues properly. They need to be aware that dealing with sexual harassment complaints will be emotional and personal for the parties involved, so need to be handled non-judgementally.
  • Be very clear that some language and phrases can cause offence, even if they have been made unintentionally, or as a joke. Derogatory terms are clearly unacceptable and discriminatory. It is important to keep in mind that the law considers how such words are perceived by those who receive them – and it is usually irrelevant how, or why someone made them in the first place.

According to ACAS, all complaints of sexual harassment should be taken very seriously and handled fairly and sensitively. They recognise that experiencing sexual harassment is often extremely emotional and distressing for the worker involved.

Harassment (and Bullying) Investigations – General Advice

All complaints of harassment, of any kind, along with bullying complaints, should be taken very seriously. Failure to do so can make them much worse. There is no need to require a complainant to provide “proof” prior to conducting an investigation. The purpose of the investigation is to gather information and evidence.

When handling a complaint about sex discrimination, employers should:

  • gather data to determine all relevant facts concerning the conduct in question;
  • be prompt, thorough and impartial;
  • listen to both the alleged harasser, and the complainant’s version of events;
  • keep an open mind – discrimination situations are often very individual, and what may, or may not, be felt to be discriminatory can change over time, and from person to person;
  • be respectful and empathetic to the employee who raised the complaint, and certainly initially the alleged perpetrator, as there are always two versions of events – cases can be also be particularly upsetting/stressful to experience for all involved, including witnesses;
  • investigate the matter thoroughly, and be tactful when looking for evidence that supports or undermines the grievance;
  • carefully document when and how the claim first came to the attention of the organisation;
  • treat all claims as valid until proven otherwise;
  • keep all discussions and information as confidential as possible;
  • lead to a time-scale for resolving the problem;

Experiencing harassment is often extremely emotional and distressing for the people involved. This means making reporting such a matter as stress-free as possible. In most cases this involves simple things like making sure there is sufficient time to discuss the matter, and finding a private space to meet.

It is also likely to be very distressing for a worker to be accused of harassment. Whilst a fair and thorough investigation will need to be carried out, accused workers should also be offered support and sensitivity during the investigation process.

Serious allegations of harassment, bullying or any intimidating behaviour should normally be treated as a potential disciplinary offence, which may mean that the alleged harasser may need to be suspended, which in many instances is to protect them from further claims.

Always make a record of complaints and investigations, even if the matter can be resolved informally. These should include the names of the people involved, dates, the nature and frequency of incidents, action taken, follow-up and monitoring information. All sensitive information should be treated as confidentially as possible.

It is prudent to provide support to both individuals while the investigation, and any subsequent disciplinary action, is conducted. You should consider temporarily changing working arrangements for the duration of the investigation, particularly if it is against the complainant’s Line Manager, or a close colleague. The complainant should be kept informed of the progress of the investigation, and its outcome.

Employees should also receive training on bullying and harassment in the workplace, so they are aware that such behaviour is not acceptable. This should include educating employees that ‘workplace banter’ is often a euphemism for bullying and harassment if it causes offence to others. Tribunals have rejected the notion that such claims can be defended on the basis that sexist remarks were “only banter” or ”just a harmless bit of fun”. Staff can feel humiliated or offended without it being obvious to others and it well may happen in the workplace without an employer’s knowledge. Tribunals recognise that the employee is often in an unequal relationship with the harasser, and that it is a natural reaction to wish to avoid further conflict or ‘publicity’. The lack of action from the victim is usually attributed to a fear of losing employment. They look at the circumstances of the case, and the perception of the individual concerned, before determining whether or not it was reasonable for the conduct to have that effect.

It is the responsibility of all employers to make sure that their Equal Opportunities and Dignity at Work policies are not just sitting on a shelf, or on a server, but are widely understood and followed. To avoid liability for a claim, the employer must also take prompt and effective action that is reasonably calculated to end the harassment. When deciding the case, the Tribunal will analyse the investigation made by the employer, and the effectiveness of the remedial action taken. The Court’s decision on the effectiveness of your response is often based on whether the remedial action ultimately succeeded in eliminating the harassment.

Taking Disciplinary Action

Once the investigation is complete, you must then take appropriate steps to remedy the situation. If the claim is substantiated, you must determine what discipline is appropriate. If the harassment was severe, or occurred over an extended period of time, or the harasser was previously disciplined for such conduct, then dismissing the harasser may be appropriate.

  1. Follow the disciplinary policy to the letter and document, document, document.
  2. If you are going to discipline an employee, make sure that you get something more than just compliance by that employee. They need to recognise there is a problem, and what exact behaviour they must stop doing.
  3. Remember, disciplinary action must be justifiable, evenly applied to all similar situations, and responsive to the severity of the issue.
  4. Don’t jump to termination, even if you want to show your commitment; it may set an example that can be damaging to morale.
  5. Try to facilitate either an apology and/or mediation between the accuser and the alleged perpetrator, to help rebuild the working relationship, especially if they cannot avoid each other going forward within the work place.

Taking disciplinary action against an employee who is accused of sexually harassing a fellow employee may not be sufficient, and that proactive and reactive steps are necessary to avoid liability. Employers should proactively seek to prevent wrong-doing arising in the first place – but if it does still take place, if employers can demonstrate they took all reasonable steps to prevent the act of harassment from taking place, they may avoid liability. Policies must be up up-to-date and demonstrably routinely followed.

Sexual harassment is serious, but needs to be dealt with based on all the circumstances. Fairness is still important. We are all adults in the work place, and are all still human, subject to sexual impulses and subject to poor judgment on occasion. Because issues of hostile work environments are often cumulative in nature, many people don’t know when they have crossed the line, from occasionally annoying behaviour to sexual harassment, until someone brings it to their attention. We are human, we joke, we laugh; we probably say inappropriate things from time to time. If you impose the ultimate option of termination each time someone makes a small error of judgment, you may not be seen as an employer of choice. Equally, consistently ignoring the problem, with no penalty for people that behave badly, will also mean you will be not be seen as an employer of choice, so the right balance has to be struck.

Informal Action

This is often the easiest and fastest way with which a complaint can be resolved. This type of action will usually be suitable in instances where the behaviour has not been repeated, or isn’t serious in nature.

Informal measures may include:

  • The victim approaching the harasser and asking them to stop the behaviour;
  • Approaching the alleged harasser with the support of a colleague, trade union rep or Manager;
  • Asking a Manager to approach on their behalf.

If informal resolution approaches don’t work, formal procedures should be triggered. They’re needed if the harassment is serious or persists, or if the individual prefers this approach, so this is why it is so important to ask someone who makes a complaint, what it is that they want by way of resolution.

Conclusions

Increasing public awareness has burst the dam of secrecy, resulting in a flood of calls for greater transparency across many organisations. As a consequence, corporate cultures must change to ensure appropriate safeguards are in place to protect the safety of employees, those they come into contact with, and the organisations’ own finances and reputation.

Recent cases, broadening the scope of vicarious liability, will also impose liability in wider circumstances. Once limited to the strict employer-employee relationship, it can now apply to relationships akin to employment, such as sub-contractors, where an individual is carrying out activities on behalf of the organisation, responsibility has been assigned to them and they are controlled by that organisation. Volunteers and gig economy workers present areas of potential liability. All relevant individuals (including sub-contractors and volunteers) should understand the expected workplace standards. Organisations must also ensure that appropriate management and supervision is in place.

The Equality and Human Rights Commission has published a report ‘Turning the tables: ending sexual harassment at work’, which shares evidence about sexual harassment in the workplace, and makes recommendations about how to end sexual harassment at work. The recommendations are very much about going back to old procedures, which the Government is unlikely to implement, but neither are they likely to ignore the issue.

 

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

 

In 2019, we are running two courses which will cover much of the knowledge and many of the skills needed to be a successful Manager of people.

We have designed both these courses to suit those who are new to Management, as well as being a useful refresher for the more experienced Manager who is looking to develop their existing skills and/or wants to be more successful by learning new/different approaches, as part of your personal/career development.

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.

Building Effective Working Relationships – Norwich – 4th April & Newmarket – 30th April

It is a major part of a Manager’s role to build effective working relationships. If done well, this will help create high performing teams, as well as further developing trust and respect from those that you work with, both internally and externally.

We will cover what is really meant by regular and open two-way communication skills, influencing skills (including bosses), managing boundaries and tips on how to deal with difficult situations and people (conflict resolution).

All of this will promote productivity, success and enhance well-being in the working environment.

Why Employees do and don’t turn up to Work – Norwich – 17th October & Newmarket – 13th November

Many Managers are prone not to look beyond an income stream as to the reason why people come to work. Whilst pay is important, social interaction, job satisfaction and recognition are other key motivators.

Whilst this course will look at effective methods to help control absence, we will also be encouraging Managers to better understand the root causes behind why people do not turn up for work.

Course content will include the dangers of presenteeism, the benefits of return to work meetings, and the importance of focusing on small scale, but high impact well-being initiatives, seeing as mental health and stress combined is the number one reason why people are off sick these days.

If absenteeism is a problem at work, and/or you are looking for some simple, yet practical tips on dealing with mental health issues, and improving well-being amongst your people, then this course is a must for you.

**** STOP PRESS ****
Brexit & Immigration Employment Issues Seminar – Newmarket – 9th April 2019

Immigration and Employment are very current and related hot topics. BackupHR and DavidsonMorris Solicitors are joining forces to discuss the impact of Brexit on your ability to retain and recruit EU nationals, as well as looking at the wider immigration landscape for employing non-UK nationals. We will focus on how you can assist your affected workforce (and their families), so that the Organisation and employees are ready for when the final proposals are agreed and enforced.

Immigration rules are complex and subject to frequent amendment. However, there are immigration provisions which you can use, especially lesser known immigration rules and proposed changes to the law, which could have a positive impact on retaining and recruiting your workforce.

We will also provide some practical guidance on the related employment issues and documentation that you also need to consider in a rapidly changing environment, and the costs/penalties for getting it wrong.

We are delighted that our keynote speaker is Anne Morris, a leading immigration lawyer. Anne will provide genuine insight into this complicated area of law, as well as offering real solutions on what to do. This seminar will be very engaging, and we encourage you to bring along your questions.

Medical conditions can be a complicated subject for employers. Medical conditions are a very personal subject with details that an employee might not want to willingly or fully disclose, yet the employee’s ability to work could well be impaired, that may lead to changes and adaptations being required.

Employers need to know where they stand to avoid breaking the law, but it is important to be sensitive to the needs of each employee beyond what the law requires. Simply being allowed to ask a certain question does not mean that you definitely should. Tact can go a long way in keeping communication as open and as regular as possible in building up a sufficient degree of trust, that encourages the employee to co-operate.

At a glance – What you can ask?

  • Employers can ask questions that help them to determine if they need to make reasonable adjustments. This might include an adapted working environment, or additional flexibility in the job role or working hours.
  • An employer can ask about a medical condition if it’s believed that the condition is currently, or might in the future, affect the employee’s ability to do their job.
  • An employer can ask a medical professional for an employee’s medical records, or information about their health, with permission from the employee.
  • Employers can encourage employees to volunteer information about any health conditions that arise during employment, so they can make reasonable adjustments to support the employee in their work.
  • If an employer wants to consider reasonable adjustments for an employee, but is unsure of what the options could be, then they can seek advice from the employee’s GP or an Occupational Health (OH) provider with the employee’s consent.

Recruitment

The ‘recruitment stage’ covers everything up until the point where a job offer is made. After the offer has been made to the applicant, the rules for employees apply.

During recruitment, employers are not allowed to ask any questions regarding health or disability. This is because Section 60 of the Equality Act provides that, in most circumstances, employers must not ask about the health of job applicants before making a job offer. This includes questions about the number of sick days taken at the applicant’s previous place of work.

Exceptions are made for questions that determine the applicant’s ability to take part in any assessments, and to highlight any adjustments that the applicant might require to have a fair shot at the assessment, such as personality tests, manual dexterity tests, or typing assessments etc.

This means that employers should not ask applicants to complete medical questionnaires at an early stage of the recruitment process – and should certainly not be asking OH professionals to get involved in assessing an employee’s health or fitness until a job offer has been made, other than where a specific exception applies.

This “freestanding” legal requirement has a complex interface with discrimination law. Asking prohibited questions will not, in and of itself, amount to discrimination against a job applicant. However, if inappropriate questions are asked, the burden of proof will fall on the employer to show that no discrimination took place as a result, or that the candidate was rejected because of the consequences of a disability rather than because of the disability itself. The former might be justifiable, the latter is not. In addition, the Equality and Human Rights Commission may independently investigate and take enforcement action against employers that are in breach.

There are also exceptions made for questions that determine whether or not an applicant can do a part of the job that is absolutely essential, i.e. intrinsic to the role, e.g. questions that determine whether applicants can climb or do heavy work. The obvious question surrounds the meaning of the words “necessary” and “intrinsic”. When does an important part of a job become intrinsic? And when is it actually necessary to ask questions? Unhelpfully, the legislation does not provide answers to these questions. Employers should consider carefully what functions are intrinsic, or as per the wording in the EHRC guidance, “absolutely fundamental” to the job being recruited for, bearing in mind the job specification. In most office-based jobs, the manual functions that are truly intrinsic to the role are likely to be few and far between. For example, in most office roles applicants would need to have modern computer literacy, so need not involve asking health questions.

The example used by the Equality and Human Rights Commission (EHRC) is that of a candidate for a scaffolder role being asked about their ability to climb scaffolding at height. This is a very unusual example, and we would prefer to use the example of roles that require frequent manual handling, then questions related to the candidates level of physical fitness may be permissible, providing this objective justification has been clearly stated in advance, both in the job description, person specification and preferably risk assessments. There is no guidance at present on more complex scenarios, such as an office role requiring multi-tasking and at times high levels of stress, however if there is clear evidence that a role generates a very high level of regular work pressure, e.g. dealing with customer complaints, then it might be legitimate to state that being able to have the mental resilience to cope with this is not unreasonable.

An employer may consider it necessary to ask a candidate whether they have any condition that would hinder such activity. The focus should not be on the disability, but the task(s). This means focusing on their recent experience of, e.g. heavy lifting or dealing with the full on pressure of customer complaints, rather than by focusing on health issues that may prevent them from doing so. While this seems an over-cautious approach, there is no case law on the approach that tribunals should take. As a rule, questions about current health are much more likely to be considered “necessary” than questions about past health. Employers should avoid asking questions that start with: “Have you ever suffered from….”

Adjustments during the Application Process

Employers are permitted to ask questions about health if it is necessary to do so, in order to ascertain whether or not any potential candidate with a disability may need reasonable adjustments to be made to the recruitment process (not the role) to allow them to participate, e.g. make special access arrangements to attend an interview. If applicants have to carry out any kind of assessment as part of the recruitment process, then allowances or arrangements may have to be made to ensure that a candidate is not put at a disadvantage.

Ideally, information in this regard should not be requested at the initial application stage, and should be sought only once a candidate has been selected to attend for interview. Candidates should be asked if there are any adjustments required, not whether or not they have a disability. Employers must not to let the knowledge of the fact that an applicant needs adjustments influence the recruitment decision.

Monitoring Diversity

Employers can still ask questions about applicants’ disabilities to monitor the diversity of their workforce. Diversity monitoring forms should be kept separate from other recruitment documents, and should ideally not be made available to any decision-makers in the recruitment process. There are a range of data protection issues to also consider when collating such sensitive personal data, which is another example of a special data category.  One final point though, if you decide to monitor such information, then make sure that the data collated is properly used to help improve your diversity to make a real difference.

Conditional Job Offers

The Equality Act restrictions fall away once the employer has offered the candidate the role. As such, an employment offer can be conditional on the individual passing a health assessment.

However, if the information reveals that the candidate is disabled, withdrawing the offer may be discriminatory, unless it can be shown that no reasonable adjustment could be made to enable the candidate to perform the role. To help manage the discrimination risk, where possible, use health questions that are tailored to the particular role, or, if you do use a generic questionnaire, make sure you base any decision on answers to questions which are relevant to the role. If questions or a medical check reveal a condition that will affect an individual’s ability to carry out the role for which they have been recruited, the employer will need to consider reasonable adjustments. This may require co-operation with OH providers, including discussions around how specific adjustments will assist the individual.

If there are no reasonable adjustments that can be made, it is possible for the employer to withdraw the job offer. Withdrawing an offer should always be an absolute last resort, as there is clearly scope for legal claims here, so any adjustments must be very carefully considered. If none are viable, the employer must have an objective business reason to withdraw the role.

Confidentiality of Information

Employers have a duty to maintain medical information about the health of applicants, employees and ex employees. The ICO provide guidance.

They start with general advice, such as keeping paper records under lock and key, and using password protection for computerised ones. Only staff with proper authorisation and the necessary training should have access to employment records.

Where possible, sickness records containing details of a worker’s illness or medical condition should be kept separate from other less sensitive information, for example a simple record of absence. This can be done by keeping the sickness record in a sealed envelope, or in a specially protected computer file. Only allow Managers access to health information where they genuinely need it to carry out their job.

Employers are not responsible for all aspects of their employees’ state of health, but they are charged with a duty of care, ensuring the employee is medically fit for a certain job (for example, driving a bus). They must ensure that the work conditions do not cause adverse health effects on their workforce (such as an occupational illness). If you wish to collect and hold information on your workers’ health, you should be clear about why you are doing so, and satisfied that your action is justified by the benefits that will result.

The law requires openness. Workers should know what information about their health is being collected and why. Gathering information about workers’ health covertly is unlikely ever to be justified.

Once you are clear about the purpose, check that the collection and use of health information is justified by the benefits that will result. In doing so, remember that:

  • gathering information about your workers’ health will be intrusive;
  • workers can legitimately expect to keep their personal health information private, and expect that employers will respect this privacy;

Be aware that all information relating to a person’s health will be sensitive personal data, (now called special categories) for the purposes of data protection legislation. Appropriate consent will need to be obtained to ensure compliance with the legislation. Employees are permitted to make a data subject access request to access personal data held about them by their employer – this includes health and medical reports.

Medical information voluntarily offered up by a candidate during an interview

The fact that a candidate brings up their health at an interview does not change the position – discussions around a candidate’s health should not normally take place before a job offer is made.

Where this happens (and the information is not given in the context of discussing an intrinsic function of the job), the Manager should explain that they do not need to know about a candidate’s health at this stage in the recruitment process, and should then move on. Managers need to be aware that they should not make any comments during the interview about the potential impact of that condition on the candidate’s ability to perform the role, unless it is intrinsic to the job.

What if an employee subsequently reveals they have an existing medical condition?

It is difficult to rely on inaccurate or misleading answers in this context as the basis for a fair and/or non-discriminatory dismissal. This is because it is not clear whether or not an employee is actually obliged to reveal a medical condition; there is nothing in the Act that requires applicants to disclose their disabilities, and the EHRC Code recognises that people with disabilities may be reluctant to disclose them.

More extreme cases may justify dismissal where no adequate explanation for the inaccuracy is provided. For example, if the individual holds a role where honesty and integrity can genuinely be said to be a fundamental requirement of the role, or where the impact of the medical condition puts their health, safety or welfare, or that of others, at risk. If it turns out that an employee has a medical condition that prevents them from doing their role (and no reasonable adjustments can be made), the fact that they cannot do the role could justify dismissal, but proper consideration should be given to alternatives, such as whether or not there is a suitable alternative vacancy.

Tips for handling Health and Disability Issues in the Recruitment Process

  • Train your interviewers so they understand what questions they can and can’t ask candidates about health/disability.
  • Regularly review any health-related questions that are asked of successful candidates to ensure they remain relevant to the role.
  • If a successful candidate does have a disability and reasonable adjustments need to be considered, make sure those deciding how the role can be adjusted understand what compliance with the duty entails.
  • Questions should be restricted to whether there is any specific health reason why the individual cannot perform any of these tasks.
  • Questions should go no further than is necessary. Past medical history will probably be irrelevant.
  • Questions about a disabled person’s ability to carry out a particular role should be accompanied by a question about their ability to do so with reasonable adjustments in place.
  • Consider whether in fact a role specific application form or assessment process is appropriate.
  • Remember the provisions will capture not only questions asked of an applicant, but also those asked of a third party, for example, in a request for a reference made to the applicant’s current or previous employer.
  • Offers of employment should, therefore, be made subject, as appropriate, to satisfactory health checks; the outcome of which could potentially lead to reasonable adjustments being made or, provided it is justified, the offer of employment being withdrawn.

During Employment

Employees are protected by law when it comes to asking questions about medical conditions. The burden of proof is on the employer, who must be able to show that they had a valid reason for asking a question. If an employee believes that they were asked a question by reason of discrimination, then the employee can take legal action.

The law on access to medical reports is unfortunately not always very clear. The main regulations are the Data Protection Act legislation and the Access to Medical Reports Act 1988 (AMRA), but in addition, common law applies and Doctors must also take into account any guidance from the General Medical Council. The Equality Act is also important, as it protects against discrimination in the workplace.

To obtain a medical report, you must comply with the law which provides employers with a right to access medical reports for employment purposes provided by a medical practitioner who is, or has been responsible for, the individual’s clinical care.

There are many reasons why an employer would like to obtain medical reports, such as:

  • to understand when someone on long-term sick leave is likely to return to work;
  • to establish whether there is any underlying medical reason behind an employee’s regular short term absence;
  • to determine whether an employee is suffering from a condition which would amount to a disability and, what reasonable adjustments need to be made;
  • in relation to an employee who is at work, but whose fitness to undertake their role appears to have deteriorated, either following a period of absence or for other reasons;
  • to assist an employer’s compliance with its health, safety, and welfare (well-being) responsibilities;

What the Report should cover?

Rather than make general requests about the employee’s health or medical condition, the request should refer to the employee’s ability to do their job. It should ask specific and relevant questions, and be limited to the reason for the obtaining of the report. For example, if you have an employee who is on long-term sick leave and you are considering dismissal, you should ask specifically what their likely date of return to work is, if they have any disabilities, if there are any reasonable adjustments that could be made to accommodate their disability, or if they have any specific recommendations about redeploying the employee into other available roles in your business.

Applying for a Medical Report

There are strict conditions which need to be met if an employer wishes to make an application to see an employee’s medical report. They must:

  • inform the employee in writing of their intention to make this application;
  • notify the employees of all these rights under AMRA, mentioned above;
  • receive the employee’s explicit, written consent;

Employers should send evidence of the employee’s consent to the doctor when making the request.

How can the employee respond?

Employees can do any of the following:

  • decline to give their employer their consent;
  • consent to the application and agree that the report is sent directly to their employer;
  • provide their consent to the application but state they wish to see the report prior to it being sent to the employer;

What if an employee refuses to provide consent?

A provision in the employee’s Contract of Employment may oblige employees to undertake a medical assessment if requested, and allow employers to see medical reports. Depending on the wording of the provision, the employee would be in breach of contract and face disciplinary action if they did not provide their consent. However, the employer will still need to follow the procedure in AMRA, and need to make sure that the request is reasonable and proportionate.

If your contract does not allow this, you cannot force an employee to provide their consent. If they do not consent, you should explore the reasons why. You may be able to allay their fears. For example, if they are worried that everyone in the office is going to know their private business, you can confirm that this information will remain private.

Appendix 4 of ACAS’s guide: Discipline and Grievance at Work makes it clear if an employee does not give their consent, they should be notified in writing that the employer will take a decision based on the evidence they have available to them, and this could lead to dismissal. This may persuade an employee to give their consent. An Employment Tribunal will generally accept that the employer has little option but to make a decision, including a decision to dismiss, based upon the information that it does have.

Who should the employer instruct to undertake the medical report?

The choices of whom to instruct to undertake the report are generally:

  • The employee’s GP;
  • A specialist doctor, consultant, or other health professional e.g. physiotherapist or counsellor treating the employee;
  • An independent health or occupational health practitioner not involved in the employee’s medical care; or
  • The employer’s own doctor, or the employer’s regular Occupational Health service;

We would rarely recommend an employee’s GP.

Remember, an Employment Tribunal will consider whether you properly assessed the employee’s condition or illness to find out their likelihood of returning to work or ability to do a job. If medical evidence is sought and decisions are based on that report, an Employment Tribunal is likely to deem consequent action to be fair. If recommendations within a report are not implemented, then it is important that there is justification as to why it was deemed the suggestions could not be reasonably applied, e.g. too expensive or totally impractical.

We would also advise that in matters of employee health, you should seek expert advice very early on.  Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.