Climate change and global warming are now regular topics on our news platforms of choice, with record breaking temperatures every month since January, give us a fair idea of what the British Summer has in store for us this year.

According to provisional Met Office figures, temperatures for June 2023 in the UK are the highest in a series since 1884, with England, Scotland, Wales and Northern Ireland all reporting their respective warmest June on record, topping out at 32.2°C.

True to form, as the weather heats up those of us who spend all of our time indoors at work will, in our spare time, be heading out into our gardens or up the coast in an attempt to soak up some sun.  In contrast, those employees that spend large amounts of time working outdoors have the opposite problem of making sure that their skin is not over exposed, and they keep well hydrated, especially when doing physical work.

So, what do the experts tell us about this periodic British opportunity of a potentially decent summer?

Sun Protection

The Health and Safety Executive (HSE) considers matters within the workplace, reminding organisations and Managers responsible for workers whose job keeps them outside for most of the day.  Their relevant leaflet INDG337: Sun Protection: Advice for Employers of Outdoor Workers gives advice on reducing the health risks for employees when they are working in the sun.

The leaflet advises outdoor workers to follow the sun protection six-point code:

1. Keep tops on to act as a barrier from the rays of the sun.
2. Wear a suitable hat, especially one with a brim or flap that protects the ears and back of the neck.
3. Stay in the shade wherever possible, especially at break times.
4. Use a high factor sunscreen on any exposed skin.
5. Drink plenty of water to avoid dehydration.
6. Check skin regularly for any unusual moles or spots, and see the doctor promptly if anything is changing in shape, size or colour, itching or bleeding.

Employers or Managers responsible for outdoor workers should make their workers aware of the above points, and especially:

• Include sun protection advice in routine health and safety training, as well as informing workers that a tan is not healthy but a sign that skin has already been damaged by the sun.
• Make sure that they drink plenty of water to avoid dehydration, siting water points and rest areas in the shade.
• Encourage workers to keep covered up with hats and long-sleeved shirts during the summer months, especially at lunch time when the sun is at its hottest.
• Encourage workers to use sunscreen with a sun protection factor (SPF) of at least 15.
• Consult with employees and take their views into account when introducing any new sun safety initiatives.

The HSE says, “UV radiation should be considered an occupational hazard for people who work outdoors” so this needs to be considered as part of any generic workplace risk assessment undertaken.

Heat Stress

Other workers that need to be considered are those that work in hot conditions all year round, but when there is additional summer heat, their environments can get even hotter.  These can range from professional kitchens, bakeries, laundries and boiler rooms through to heavy industrial processing activities, such as smelting or welding.  These workers are at risk of heat stress, which is when the body’s means of controlling its internal temperature starts to fail.  Air temperature, work rate, humidity and work clothing are all factors that can cause heat stress; the problem being is that it is not an obvious risk to people that are only passing through rather than actually working there.  Factors to reduce risks include:

• Control the temperature, e.g. fans or air conditioning.
• Provide mechanical aids to reduce work rates.
• Regulate the length of exposure, e.g. job rotation.
• Prevent dehydration encouraging people to drink small amounts frequently during and after working.
• Provide training about heat risks, symptoms of heat stress, safe working practices and emergency procedures. Make sure first aiders know about what to look out for and what treatment to provide as well.
• Allow workers to acclimatise to their environment, and assess whether they are fit to work.
• Identify those who may be more susceptible due to illness, a medical condition or medication that can bring on early onset of heat stress, e.g. pregnant women or those with heart conditions.
• Monitor the health of workers at risk and seek OH advice if necessary.

There are useful tools available to help you assess your stress heat risks, including a PDF checklist, at: http://www.hse.gov.uk/temperature/employer/heat-stress.htm.

Finally, for those that are simply suffering the heat in an office environment, there is no upper temperature limit that employers must adhere to.  However, the Workplace, Health, Safety & Welfare Regulations do require that working areas should be adequately ventilated with clean fresh air drawn from a source outside of the workplace with suitable circulation.  That can mean either opening windows to switching on the air conditioning.  Don’t forget that those air conditioning units need to be periodically serviced so that filters can be cleaned to reduce the risk of legionella.  High quality drinking water must be readily available to all workers.  Even workers that spend many hours in a vehicle driving can suffer with heat exhaustion, increasing the risk of accidents, so make sure that they carry plenty of fresh drinking water in their vehicles, switch on the air conditioning, and take appropriate rests, especially when driving at the hottest time of the day.

So, check that your risk assessments cover this welcome advent of the sun, and make sure that your control measures are adequate for all of your workers, indoors and out, and anywhere in between.

When all other reasonable measures are in place, extra drinks provided to staff and an arranged site visit from the local ice-cream van, with a complimentary 99, can all go a very long way to support and help your teams cope with the best of the British weather this Summer!

 

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

Information contained within this newsletter was correct at the time of publishing.

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

The new bands are: –

• lower band: £1,100 to £11,200 (less serious cases)
• middle band: £11,200 to £33,700
• upper band: £33,700 to £56,200 (the most serious cases)

Awards in the most exceptional cases may exceed £56,200. These updated figures apply to cases presented on or after 6 April 2023.

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

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

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

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

There were 200 discrimination cases where compensation was awarded in 2021/22. In 2021/22, Sexual Orientation Discrimination claims received the largest average award (£33,000) compared to other discrimination jurisdictions. The highest maximum award in 2021/22 was for Race Discrimination, at £228,000, which was an exceptional case.  These awards will include compensation for loss of employment which generally makes up a large proportion of the total amount with injury to feelings being on top.

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

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

Actions:

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

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

Finally, the Government is preparing to introduce, via the Equalities & Human Rights Commission (EHRC), a statutory code for employers, with the focus being on the prevention of sexual harassment.  Additionally, liability for third party (e.g. clients, customers, contractors, members of the public etc.) harassment (of all types) will rest with the employer from the first incident onwards, unless all reasonable steps had been taken.

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

BackupHR have put together a training course entitled Dignity at Work (Harassment & Bullying).  If this is something you would be interested in running in house for your Managers and/or employees, please contact Jackie Bolton on 01480 677981 or drop her an email to jackie@backuphr.com for more information.

 

 

 

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

The information provided in this article was correct at the time of publishing.

 

Back in 2015, we sent out Newsletter No 97 about the right of employees to be accompanied at any grievance meetings.  We are now in 2023 and certain aspects have now changed, so we have produced this update.

An employee who is invited to attend a grievance meeting has the right, under the Employment Relations Act 1999, section 10, to be accompanied by an accredited “trade union official or a fellow worker.”

When inviting an employee to a grievance meeting, the employer should inform them of their statutory right to be accompanied.  There are a number of things you need remember when dealing with an employee’s right to be accompanied. Much of which can be found in guidance from ACAS:

(1) Not every grievance related meeting attracts the right to be accompanied. When an employee raises a formal grievance, the subsequent meeting you will have with them does mean that they have the right to be accompanied. This meeting is to hear their grievance in full, and to establish whether there is evidence that supports their claim. This could be classed as a type of investigation.  If what they raise at that meeting requires further investigation, then it is important that this happens. So, any other follow up meetings with that employee about their grievance will also incur the statutory right of accompaniment.  However, other investigation meetings, when you are interviewing other witnesses to establish whether the initial grievance claim has merit or not, does not require you to allow those employees to be accompanied, unless your policy says so.

(2) Employee’s requests to be accompanied must be reasonable. Situations where the request may not be reasonable include, where their chosen companion will not be available to attend a meeting within a reasonable time, for example because of illness, holiday, work or other commitments. The issue of the reasonableness of the request is a matter of fact in the particular circumstances. Employers should carefully justify any rejection of a request by reference to the principles of the ACAS Code of Practice on Disciplinary and Grievance Procedures, including the need to deal with matters promptly and without undue delay.

The companion must be chosen by the employee and can be a fellow employee, or a trade union official who has been certified by the union as having experience of, or having received training in, acting as a companion at such meetings. There is no necessity for the trade union official’s union to be recognised in the workplace, nor is there any obligation on employees or union officials to accept a request to act as a companion.

(3) The employer cannot object to the employee’s choice of companion, so long as the companion is willing, and is available. We would recommend that in making their choice, employees should be told to bear in mind the practicalities of the arrangements.

(4) If the companion is not available at the proposed meeting time, and the employee suggests another time that is reasonable, and falls within five working days of the original time, the meeting must be postponed. The new time can be proposed by either the employer or employee.  If the employee again states that their chosen companion is not available, then the employer can recommend they find another companion so as not to postpone matters any further, beyond the initial week’s delay. Trade Union officers are busy people, so if the delay is only for a matter of a couple of further days, it may be advisable to accept a short further delay to appear reasonable.

(5) The companion should be allowed reasonable paid time-off to carry out the role. They are permitted to take a reasonable amount of paid time off during working hours to accompany a colleague, and to prepare and confer with the employee before, and after the meeting. They may present a complaint to a Tribunal if the employer fails to pay them for the time off.

It is important for employers to ensure that an employee advises their employer in advance, of the identity of the person they would like to bring to the meeting as their companion, so that the employer can ensure their availability and support for the employee.

(6) Ensure you understand what the companion can do at the meeting. Employers often mistakenly believe that the companion is there simply to provide moral support, and act as a witness for the employee, but can take no active part in the meeting.

The companion, if they so wish, must be permitted to address the meeting in order to put the employee’s case, they can sum up the case and respond on the employee’s behalf to any view expressed at the meeting. The companion must also be permitted to confer with the employee during the meeting.

A companion can also take notes of the meeting on the employee’s behalf. This may sometimes lead to two versions of the notes, if the version of the employer’s notes is disputed by the employee, based on their understanding of what was discussed at the meeting.

However, the companion has no right to answer questions on behalf of the employee, to address the meeting if the employee does not wish them to do so, or to prevent the employer explaining its case.

(7) If the employee going through the grievance process is disabled, reasonable adjustments may need to happen, such as allowing a companion from outside the normal permitted categories. Permitting companions of this nature can be a sensible policy for employers, as their presence may help put the employee at ease, and assist in getting to the facts of the matter under consideration. If English is not the employee’s first language and they have a known language problem, then having a companion present that can translate for them is strongly advisable but preferably find someone in-house if possible.

(8) There may be adverse legal consequences if an employee is refused the right to be accompanied. The employee can complain to an Employment Tribunal. Where the complaint is well founded, the Tribunal will order the employer to pay up to two weeks’ pay as compensation (subject to the statutory cap on the amount of a week’s pay). The right to be accompanied does not depend on the length of time an employee has worked for/with the employer.

(9) It is not necessary for an employee to make a request to be accompanied in writing, or within a specific timeframe. However, employees should be encouraged to make their requests clear, and provide their employer with the name of their chosen companion, as well as confirming which category of approved companion they fall in to.

(10) Unless contractually entitled, employees have no statutory right to be accompanied by a family member at a grievance meeting, unless the family member happens to be a work colleague or trade union official, in which case, they will be a permissible companion under the statutory right to be accompanied.

However, there is nothing to prevent an employer from allowing an employee to be accompanied by a family member, and it is likely to be appropriate in the case of a young person under 18 years old or a particularly vulnerable employee.

(11) The conduct of any companion may be considered as part of their normal duties, so blatantly disruptive or inappropriate behaviour should attract any appropriate action against the companion, as an employee, in their own right.

 

Finally, many employers are nervous at the prospect of holding a grievance meeting when the chosen companion is an accredited trade union representative.  Don’t be would be our advice.  Full time union officials are very experienced at these types of meetings, and tend to be refreshingly objective and non-emotive, which invariably helps the employer to get to the real heart of the matter.  They will have also encouraged the employee to be clear about what they wish to achieve having raised the grievance.

If you feel that you need professional assistance to ‘balance things up’ then we would be happy to assist.

 

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

All information provided in this newsletter was correct at the time of publishing.

In 2023, there will be an additional Public/Bank Holiday to mark His Majesty’s Coronation.  The Coronation is actually on Saturday, 6 May so the Public/Bank Holiday is the following Monday, 8 May.  This means there will be 3 Public Holidays in May 2023.

For England and Wales, the schedule for 2023 looks like this:

Date                       Public Holiday (Dates in italics are not the official holiday)

2 January                New Year’s Day (substitute day)

7 April                      Good Friday

10 April                   Easter Monday

1 May                      Early May Bank Holiday

8 May                      Bank holiday for the Coronation of King Charles III

29 May                    Spring Bank holiday

28 August                Summer Bank holiday

25 December           Christmas Day

26 December           Boxing Day

All employees are entitled to a set number of days off work each year by way of paid leave. The minimum statutory annual leave entitlement is 5.6 weeks’ paid holiday per year, which is equivalent to 4 weeks plus 8 Public/Bank Holidays. An employer may offer enhanced rights over this legal minimum under the terms and conditions stated within their employment contracts.

However, by law, Public or Bank Holidays do not have to be given as additional paid leave, although an employer can choose to include Public/Bank Holidays as part of an individual’s statutory annual leave entitlement. If so, this essentially means that if your place of work is closed on some or all Public/Bank Holidays, you can require employees to take these days as part of their paid holidays. Equally, you may choose to pay your employees for Public/Bank Holidays on top of their normal leave entitlement, or allow employees to take them as extra holiday days, but without pay.

In the context of any organisation that remains open on a Public/Bank Holiday, it’s again up to the employer to decide whether or not an employee needs to work those days.

In essence, the rules relating to whether employees are asked to work, or not, Public/Bank Holidays, and whether or not any Public/Bank Holidays are included in the overall paid annual leave entitlement, are a matter of what is clearly expressed in the contract of employment. Whether Public/Bank Holidays are in addition to, or inclusive of the employee’s statutory or contractual annual leave entitlement, will depend on the wording within the contract of employment.

Entitlement to the additional Public/Bank Holiday in 2023

It is important to note that employees do not have an automatic right to paid time off for an extra Public/Bank Holiday. Employers are advised to check the wording of their employment contracts, and communicate with employees about whether or not they will be required to work on the additional Public/Bank Holiday in line with the terms of their contract.

We have set out below the most commonly used phrases relating to Public/Bank Holidays that we have seen in employment contracts, and what they mean in terms of the employee’s right to have paid time off work on 8 May 2023.

Contractual wording	Entitlement to paid time off for an additional Public/Bank Holiday
1. “20 days holiday per annum plus Public/ Bank Holidays”	Yes – employees will have a contractual entitlement to take paid time off on the additional holiday as the wording on holiday entitlement in the contract is not limited to the normal/usual Public/Bank Holidays. Therefore, there is a contractual entitlement to paid time off on all Public/Bank Holidays – including Public/Bank holidays which are in addition to those normally observed.
2. “28 days holiday per annum”	Potentially – where the contract is silent on Public/Bank Holidays, the employee has the ability to request booking from their 28-day holiday allowance any of the Public/Bank Holidays, including the additional Public/Bank holiday, subject to Management approval. However, there is no increase in holiday entitlement as a result of the additional Public/Bank Holiday.
3. “20 days holiday per annum plus 8 Public/Bank Holidays”	Potentially – similar to above.  The contract is silent on which Public/Bank Holidays are included within the employee’s holiday entitlement, and, therefore, an employee has the ability to request booking the additional Public/Bank Holiday as paid time off in May 2023. Although this would mean that the employee will not be entitled to one of the later Public/Bank Holidays in the year. We would recommend this is clarified to the employee at the time of booking annual leave.
4. In addition, you will also receive pay on or in respect of each of the eight Public/ Bank Holidays as listed below:             New Year’s Day, Good Friday, Easter Monday May Day, Spring Bank Holiday, Late Summer Holiday, Christmas Day, Boxing Day.	No – where there is a list of Public/Bank Holidays contained within the contract, the employee will only be entitled to receive paid time off on those named Public/Bank Holidays listed (whether this list is some or all of those usually observed in England and Wales). Employees with such wording in their contract will not have a contractual right to the King’s Coronation Public/Bank Holiday of 8 May 2023, only by the discretion of the Employer.
5. “20 days holiday per annum plus the usual Public/Bank Holidays observed in England and Wales”	No – as the additional Public/Bank Holiday is not usually observed in England and Wales, so employees would not be entitled to take paid time off on the additional Public/Bank Holiday.

The wording at point 4 above is what most of our clients will have, although it is important that you check your templates versions.

Even where there is no contractual entitlement to take the additional Public/Bank Holiday as paid time off, many employers, as a gesture of goodwill, will decide to allow their employees to take the additional holiday.  If that is not possible for operational reasons, an employer may choose to provide time off in lieu as an alternative. The goodwill lost through not offering an extra day’s leave in 2023 will often far outweigh any marginal cost savings gained from not giving the day off, or from requiring employees to take the extra day from their existing holiday entitlement.

Previous approach to time off for additional Public/Bank holidays

In 2022 we had the Queen’s Platinum Jubilee in June and then unexpectedly the Queen’s Funeral in September.

Therefore, when considering whether to allow employees paid time off for the additional Public/Bank Holiday in 2023, we would recommend considering what has been done previously. If employees have previously been offered paid time-off, or time-off in lieu to mark an additional Public/Bank Holiday, to adopt a different approach in respect of the 2023 additional Public/Bank Holiday may cause a negative reaction from employees (in particular, those with long enough service to have been working when this happened previously).

Requests for time off work

Even though employees have a right to a minimum number of paid days holiday each year, employees are not normally entitled to pick and choose when they take this time off. Employers need to manage staff rotas to ensure that they have the necessary available cover at all times to ensure business continuity.

To maintain good employee relations, it’s important for employers to handle any requests for time off fairly and consistently. As an employer, you should also be prepared for an influx of annual leave requests covering the two weeks linked with Monday,1 May and Monday, 8 May 2023 Bank holidays.  If your workplace closes on weekends and Public/Bank Holidays, the extra Public/Bank Holiday will probably mean that many of your employees will seek to benefit from 9 consecutive days off work. As it is highly unlikely that you will be able to accommodate every request, a strategy will need to be considered in advance.

The three key considerations will be:

• Decide on a fair approach whilst balancing operation needs;
• Early communication about whether or not certain groups of the workforce may, or may not, be required to work the additional Public/Bank Holiday in line with stated contractual terms;
• Set a start date and deadline for holiday/time off requests;

Hospitality businesses should also take note that the Government has proposed extending licensing hours from 11.00 p.m. to 1.00 a.m. over the bank holiday weekend of the Coronation in England and Wales. Employers will need to prepare for this early on if they intend to ask staff to work longer hours, and decide if they will offer extra hours, perhaps with an overtime premium attached or if there are any relevant contractual clauses for compulsory overtime they could enforce (where it is reasonable to do so).

 

 

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