Long COVID and disability discrimination

Blog | Employment

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The employment tribunal has determined that an employee was disabled for the purposes of the Equality Act 2010 (the Equality Act) while suffering from the effects of long COVID.  Importantly, this ruling is not binding and certainly does not mean that every sufferer of long COVID is disabled, but it does serve as a reminder of some very important points which employers need to be aware of.

The background to the case

In the case of Burke v Turning Point Scotland, Mr Burke was employed by Turning Point as a caretaker. In November 2020, he tested positive for COVID-19. Initially, his symptoms were mild. However, he developed severe headaches and fatigue. After waking, showering and dressing, he had to lie down to recover and struggled standing for long periods. He experienced joint pain, a loss of appetite, a reduced ability to concentrate and difficulties sleeping. He could not undertake household activities, such as cooking, ironing and shopping. He also felt unable to socialise. From January 2022, his health began to improve. However, sleep disruption and fatigue continued to affect his day-to-day activities.

Mr Burke was signed off sick from work from November 2020. Later fit notes referred to the effects of long COVID and post-viral fatigue syndrome. However, two Occupational Health reports stated he was fit to return to work and that the disability provisions of the Equality Act were unlikely to apply. However, relapses of his symptoms, particularly fatigue, meant that he did not return to work.

He was dismissed in August 2021 by Turning point because of ill health and subsequently brought various claims including disability discrimination.

The tribunal’s decision

The tribunal had to determine whether Mr Burke was disabled during the relevant period. It concluded that he was.

The tribunal found that the physical impairment had an adverse effect on his ability to carry out normal day-to-day activities. This effect was more than minor or trivial, and it was long term because it "could well" be that it would last for a period of 12 months when viewed from the dismissal date (the last alleged discriminatory act). The tribunal noted that the employer's own view was that there was no date when a return to work seemed likely.

The tribunal considered that Mr Burke was not exaggerating his symptoms and had a physical impairment (post-viral fatigue syndrome caused by COVID-19), noting that there was no incentive for him to remain off work when he had exhausted sick pay.

What does this mean for employers?

The ruling is not binding and does not mean every long COVID sufferer will be disabled. Each case will turn on the facts and to this end it is notable that the symptoms of long COVID vary significantly from person to person. However, the case illustrates that the long term effects of COVID certainly can amount to a disability, and also serves as a useful reminder of a couple of important points to note:

  • Conclusions in occupational health reports about whether an employee is disabled are not determinative – only the tribunal can make this finding – and should be treated cautiously as a result.

  • The effects of a condition need not last for 12 months in order to be a disability.  It is sufficient that they are likely to last for at least 12 months.

The Office for National Statistics has reported that as of 1 June 2022 an estimated two million people in the UK have long COVID. As such, there is likely to be a huge number of individuals in a similar boat to Mr Burke and employers should treat these cases with appropriate care.

If, as an employer, you have an employee who is reporting long COVID or COVID-related symptoms well after the initial infection, treat the case sensitively, look at each case individually and be prepared to consider whether you will need to make some reasonable adjustments.

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Employment Contracts Vs Consultancy Agreements - The Pros & Cons

Employment Guides & Advice

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How To Staff Your Business

One of the many important decisions for any start-up company or one in the early days looking to grow is how to staff your business. There are different options available to you, so do you employ a member of staff or use a consultant?

Employment contracts v consultancy agreements - the difference between the two

Employment contracts set out the terms on which a company wants to employ a person. This is usually with a view to employing a person on a long term permanent basis, unless you use a fixed term contract for a specific project or tasks to be delivered over a fixed period of time.

Consultancy agreements set out the terms on which a company wants to engage a person to deliver services for the company. Consultancy arrangements are usually temporary in nature and relate to the delivery of specific services, projects or tasks.

There are a number of differences between the two, but some of the important differences for a company when deciding which is the most appropriate to use are:

  • Duties: an employee can be instructed to carry out a number of duties that are reasonable and within the employee’s remit/job description. Whereas a consultant will usually carry out very specific tasks in which he/she has expertise.

  • Control: a company can exercise a greater level of control over what an employee does. Whereas a consultant is expected to deliver the services using his/her own skill, in their own way and often in a time scale chosen by the consultant.

  • Hours of work: an employee’s hours of work are usually set by the employer over a set number of days per week. However, a consultant will usually carry out the services in their chosen timescale, but often with a dedicated number of hours/days per month.

  • Equipment: an employee will usually use the employing company’s equipment. Whereas a consultant will often provide his/her own equipment.

  • Tax: an employee will usually be paid through a PAYE system where appropriate deductions for tax NICS will be made. A consultant on the other hand will be responsible for his/her tax arrangements and he/she may charge VAT.

  • Mutuality of obligation: employers are obliged to offer work to the employee and the employee has to accept it and do the work. Whereas consultants have more freedom to pick and choose the work that they accept.

  • Exclusivity: employees are usually prevented from working for other companies or indeed themselves whilst employed. Whereas consultants will usually be able to work for other companies during the period of engagement with your company.

There are of course other differences, but these are some of the more pertinent considerations.

Which arrangement should you choose?

This is an important decision and the choice will usually depend on a number of factors such as, expertise already within the company; money available to pay a salary or fees; and how much control you want to exercise over those joining the company. It is common for consultants to cost more in the short term because they usually bring an expertise and they do not acquire some of the employment related rights (such as holiday pay, pensions and Statutory Sick Pay).

For technology based companies intellectual property (and how you best protect it) will also be a major consideration whether you choose to employ or engage with people to grow your company.

Whichever arrangement you decide on, it is important to ensure that the relationship is correctly documented in order to protect the company moving forward. Failing to put in place employment contracts or consultant agreements can lead to legal and financial risks in the future, so it is recommended you take advice on both the appropriate choice of arrangement and content of the contract or agreement.

For more help and guidance on the topic, please get in touch to find out more about the fixed fee services that we offer.

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Helping employees keep their cool in a heatwave

Guides & Advice

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This recent heatwave has raised questions surrounding dress code and hot weather policies, particularly for those employees who are working remotely.

With many businesses adopting a more agile working culture, many employees are still choosing to work from home. However, this does not mean that employers can suddenly forget their health and safety responsibilities. Plus, if people are uncomfortable it’s difficult to maintain a productive workplace.

So should re-assessments be made? Here we explore what businesses can do to ensure their employees stay cool, wherever they’re working.

  1. Safe working temperatures

Employers usually rely on air conditioning and ventilation to regulate temperatures within the workplace.  However, employees working remotely may not have this option, with their only means of keeping cool to open windows. This could lead to the potential disturbance from street noise and neighbours when trying to make telephone or video calls, and therefore can make this option impractical.

Businesses should think about what else they can do to be of practical assistance, for example, by providing workers with electric fans if appropriate.

For those employees that have returned to the workplace, although there is a minimum working temperature of 16 degrees centigrade, currently there is no maximum temperature. This is because in some work environments, such as a bakery or foundry, the temperature will reach higher temperatures far quicker than in an office. Therefore, it’s difficult to set an appropriate limit for all.

  1. Legal obligations

Employers have no legal obligation to ensure suitable working temperatures. However, they do have a duty of care over their employees, so must provide a safe environment where staff are not at risk of falling ill from the heat.

With regards to the usual workplace, installing air conditioning or making sure there is always access to cold water, could form part of this.

To protect workforce wellbeing when remote working is in place, employers should follow a sensible plan; this should involve line managers checking in with staff at least once a day and reminding employees to stay hydrated and take proper breaks.

  1. Dress code

For those employees that have returned to the workplace, in hot weather, businesses should consider relaxing the rules around restrictive clothing, such as ties. Employees are unlikely to produce their best work when all they can think about is how warm they are.

It may even be worth introducing a dress-down policy for days when temperatures are considerably above average, and for meeting commitments encourage a more casual dress code.

Employers with a dress code in place for video calls when working remotely should also consider relaxing it.

  1. Flexible working

On days of extreme temperatures, implementing an early start and late finish workday, like those common in hot countries, would allow workers to rest during the worst of the heat and work when it is cooler.

Your employees’ health and safety should always be a priority.

Failing to consider what adjustments could be made to support employees when the temperature rises is not advisable. If staff become ill from the heat, especially those with health conditions which mean they are more susceptible, employers could find themselves involved in a personal injury dispute.

Ultimately, employee safety should always be an employer’s top priority and they cannot force staff to work if temperature and noise levels prohibit them from doing so.

Certain disabilities, such as COPD and arthritis, also make working in high temperatures particularly difficult, so employers need to consider reasonable adjustments that may need to be made to help them do their jobs safely.

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Flexible working requests – will need to wait a little longer

Blog | Employment

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As the final restrictions lift following the pandemic and business recovers, employers were looking to the Queen’s Speech this week to see what important employment law changes were on the horizon in 2022, as part of the long awaited Employment Bill. One change expected which is very much as a result of the pandemic and employees being required to work from home, if they could, is the opportunity to request flexible working arrangements as a day one right.

Sadly, it looks like the wait for this will go on, as there was no mention of the Employment Bill in this latest Queen’s Speech. The Employment Bill has been long under discussion and one of the aims of the new Bill has been stated to give employees more confidence and negotiating power to request agile working, enabling them to perform their role flexibly from the outset, which has been proved in many cases to be entirely possible.

What is the current law?

Currently, employees must wait until they have completed 26 weeks’ service with an employer before they can make a flexible working request. If this is rejected, the employee must then wait 12 months before they can submit another formal request.

What was expected from the new bill?

The new Employment Bill intended to make this a right from day one and planned to remove the once-a-year request limit.

This doesn’t mean, however, that employees would have an automatic right to work flexibly, but it does mean they would be entitled to request to do so, immediately upon starting their new role.

Disappointingly, the Employment Bill was not included in the Queen’s Speech and so these planned changes still appear some time off.

What does this mean for employers?

When this bill does finally make its way through Parliament, if this intention to broaden access to flexible working is introduced, employers will have to tread carefully with flexible working requests, as they will face stricter requirements for rejection, and will have to propose alternative options rather than dismissing a request outright. Requests will need to be considered in full. Currently, there are eight reasons that employers can give to justify refusal, but it is anticipated that the number of valid reasons will be reduced.

Of course, employers have a business to run and it will be up to them to decide if the requested arrangements are viable. If an employer has reasonable grounds for rejection, it is possible to insist the job is performed as advertised, even when faced with an immediate request for flexible working.

And for employees?

Even with a new right under an Employment Bill (when this finally gets introduced) employees may still be nervous about setting off their employment on the wrong foot.

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Industrial action participation - protection from detriment cannot be read into TULR(C)A

Blog | Employment

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In a further case of real interest to those involved in unionised sectors of the economy, the Court of Appeal has now overturned the Employment Appeal Tribunal’s (EAT) decision that S.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A), which provides protection to workers against detriment arising from union membership or activities, should be read as encompassing participation in industrial action.

The background of the case

Mercer v Alternative Future Group Ltd and anor

Mercer was a support worker at Alternative Future Group Ltd and a workplace representative for UNISON, her trade union.  Mercer was involved in planning and organising strikes and participated in media interviews in relation to them.

Mercer was suspended, and she was informed this was because she abandoned her shift on two occasions without permission and that she had spoken to the press without prior authorisation.  Mercer was issued with a first written warning for abandoning her shift.

Mercer made an employment tribunal claim under S.146 TULR(C)A, which protects workers from detriment associated with trade union membership or activities. The legislation does not expressly confer protection from detriment for participating in industrial action. An employment judge found that interpreting S.146 as extending to industrial action would go against the grain of the legislation.

Mercer appealed to EAT.  The EAT concluded it was possible to interpret S.146 compatibly with Article 11 of the European Convention on Human Rights, and therefore provide protection from detriment arising from taking industrial action, by adding additional words to the legislation.

The decision was appealed to the Court of Appeal.  The Court of Appeal restored the employment judge’s decision.

What are the key points in this case?

The effect of interpreting S.146 as extending to industrial action would go against the grain of the legislation and if parliament had intended for there to be a right to make a claim of detriment arising in respect of having taken industrial action, it would have expressly legislated for that fact.

Furthermore, under European Court of Human Rights case law, it is not established that a state’s positive obligations under Article 11 require that private employers should be unconditionally prohibited from treating workers detrimentally, in relation to having participated in industrial action.

What does this recent case highlight for employers?

This decision is an important one regarding the protection for workers taking part in industrial action, or rather the lack of it, and reinstates the legislated position that protection from detriment cannot be read into TULR(C)A in relation to participation in industrial action. It also provides clarity for employers, after a period of uncertainty as a result of recent case law development, and ultimately reduces the likelihood of meritorious claims arising from employees after a period of industrial action.

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Employment spring 2022 update: News in brief

Technical | Employment

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A quick round-up of recent employment law developments

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Fire and rehire – Statutory Code of Practice

The government has announced that a new Statutory Code of Practice will be published on "fire and rehire" practices used to bring about changes to employees' terms and conditions. The government has been under pressure to address the use of fire and rehire for a while and has previously said it will not legislate. This announcement follows events surrounding the mass redundancies made by P&O Ferries, which took place without prior notice or consultation.

The Code of Practice will detail how businesses must hold fair, transparent and meaningful consultations on proposed changes to employment terms and will include practical steps that employers should follow. Tribunals and courts will be required to take the code into account when considering relevant cases, including claims for unfair dismissal, and will have the power to apply an uplift of up to 25% of an employee's compensation where the employer unreasonably fails to follow the code.

We understand a draft code will be published and representations, including from trade unions, will be considered in accordance with section 204 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), although no timescale has been given.

Digital fit notes

The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2022 (SI 2022/298) came into force on 6 April 2022 enabling fit notes to be issued digitally.

Given the significant shift to virtual GP consultations since the outbreak of the COVID-19 pandemic, there has been increasing demand for fit notes to be provided in digital form.  The new regulations prescribe a new form of fit note, which will be used in parallel with the existing version of the form. The regulations remove the requirement for the fit note to be signed in ink and the new form of fit note no longer contains a signature box.

Employment tribunals road map

The presidents of the Employment Tribunals in England and Wales and in Scotland have published a new ‘road map’ for employment tribunal proceedings in 2022/23. The road map indicates that preliminary hearings will continue to default to video, and that this is likely to become permanent. However, the presidents wish to reduce the reliance on video, and intend to move towards greater use of in-person hearings, especially for final hearings of standard track and open track claims.

The majority of hearings across Great Britain are still taking place on a fully remote basis, and, in some parts of the country, over 90% of hearings are still by video. The presidents state that they want to bring that percentage down. However, they accept that, in some cases, a video hearing reflects the preferences of the parties and their representatives, and can be less costly and less disruptive to the lives of those participating.

Changes to immigration rules

The government has announced changes to the UK immigration rules. Key changes include the introduction of several new entry routes, including:

  • Global Business Mobility route. There are five new routes for businesses based overseas who wish to establish a presence in the UK.

  • High Potential Individual route. This route is for graduates of top global universities to come to work in the UK without a job offer.

  • Scale-up route. This route is for migrants with a job offer from a qualifying “Scale-up business” i.e. with an annualised growth of 20% or more in terms of turnover or staffing for a three-year period.

  • Representative of an Overseas Business route.

  • Skilled Worker route.

Compensation limits

This year's compensation limit increases are:

  • A week's pay (basic award / redundancy payment) - £571 (up from £544)

  • Maximum compensatory award - £93,878 (up from £89,493)

The new limits apply to dismissals occurring on or after 6 April 2022.

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Employment case law update | Spring 2022

Technical | Employment

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Here we take a quick look at some key employment case law decisions from recent months.

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Macken v BNP Paribas

Ms Macken was employed as a financier at BNP Paribas from 2013. She remains an employee but was placed on long-term sick leave from July 2018. She brought three employment tribunal claims against BNP Paribas in 2017, 2018 and 2019 in relation to various issues.

In March 2019, the employment tribunal upheld Ms Macken’s claims against BNP Paribas for direct sex discrimination, victimisation and equal pay arising from conduct by senior colleagues. This included one of Ms Macken’s colleagues placing a witch’s hat on her desk and another colleague dismissing her using the phrase “not now Stacey”, which was later copied by other colleagues. Another of her senior colleagues would answer the phone with greetings such as “hi sexy”. Ms Macken’s relationships with her senior colleagues worsened after she raised a complaint internally regarding inequality in pay and bonuses and resulted in her performance ratings worsening. In March 2021, a remedy hearing took place in respect of Ms Macken’s successful claims.

The Employment Tribunal awarded Ms Macken a staggering £2,081,449.70 in compensation, one of the largest ever awards made by an Employment Tribunal, and a timely reminder of the potential cost of discriminatory behaviour.

Breaking down each of the heads of loss, the tribunal awarded Ms Macken a total of £614,461.95 for past losses, comprising of £401,797.86 for equal pay and £212,664.09 for personal injury. In relation to the award for personal injury, the tribunal held that, as Ms Macken had been on long-term sick leave due to the discriminatory treatment she suffered at BNP Paribas, and as there was no intervening act which broke the chain of causation, Ms Macken was entitled to compensation for losses arising from being ill.

Furthermore, Ms Macken was awarded £860,120.11 for future losses. While the tribunal acknowledged that Ms Macken may be able to work in the future, it was accepted that she would never be in a position to return to her role at BNP Paribas, nor would she be likely to obtain a new position that paid her as much as she was entitled to through her Private Health Insurance (PHI) with BNP Paribas.

The tribunal concluded that, as Ms Macken would continue to satisfy the definition of ‘incapacity’ under the PHI until she retired, the best way for her to mitigate her losses was by remaining employed by BNP Paribas, but not carry out any role, and continuing to receive the PHI benefit for 15 years, until she was 65.

An additional £124,315 was awarded as compensation, which included an injury to feelings award of £35,000 and aggravated damages of £15,000. The tribunal also made adjustments of £479,789.57, including an ACAS uplift of £317,016.34. Furthermore, the Employment Tribunal ordered BNP Paribas to carry out an equal pay audit under regulation 2 of the Equal Pay Audit Regulations 2014.

Kocur v Angard Staffing Solutions & Another

Mr Kocur was employed by Angard Staffing Solutions (Angard), an employment agency. Angard is a wholly owned subsidiary of the Royal Mail, which provides agency workers exclusively to Royal Mail to assist with fluctuations in demand for postal workers. Mr Kocur was supplied to the Royal Mail by Angard to work in its Leeds Mail Centre in an operational post grade (OPG).

Vacancies for permanent positions arose at the Leeds Mail Office. These vacancies were advertised on the notice board and were first offered to OPGs who were either already in permanent posts or were reserve class OPGs. Mr Kocur was told that agency workers were not eligible to apply for these posts but could apply when the posts were advertised externally and that when he did apply, he would be in competition with external applicants. Mr Kocur brought a claim under regulation 13(1) of the Agency Workers Regulations 2010 (AWR). The Employment Tribunal upheld Mr Kocur’s claim stating that the right to receive information extended to an implicit right to apply for vacant posts.

However, on appeal, the Employment Appeal Tribunal (EAT) disagreed and held that regulation 13(1) entitles agency workers to be notified and given the same level of information about the vacancies as directly recruited employees. However, regulation 13(1) did not mean that agency workers have a right to be entitled to apply and be considered for internal vacancies on the same terms as directly recruited employees. Mr Kocur then appealed to the Court of Appeal.

The Court of Appeal unanimously upheld the decision reached by the EAT and dismissed Mr Kocur’s appeal. In its decision, the Court of Appeal concluded that on a natural reading of regulation 13(1) of the AWR, it does not provide agency workers with anything other than the right to be notified of a vacancy. The Court of Appeal rejected Mr Kocur’s arguments and concluded that there was no basis for implementing a broader interpretation of regulation 13(1). Furthermore, the Court of Appeal agreed with the EAT’s analysis that the consequences of giving agency workers a right to apply for, and be considered for, vacancies would be to prevent the hirer from being able to give preference to in-house candidates. If the legislator had intended this to be the case, it would have been expressly set out in the legislation.

R (on the application of Palmer) v Northern Derbyshire Magistrates’ Court

West Coast Capital (USC) Limited (USC) was placed into administration by its director on 13 January 2015, when Mr Palmer was appointed as one of the administrators. (Two others were also appointed, but due to the division of responsibilities, it resulted in only Mr Palmer being subject to proceedings.)

On the same date, a pre-pack sale of the business occurred, which expressly excluded a warehouse. The following day, Mr Palmer notified the 84 warehouse employees that they were at risk of redundancy and that a consultation meeting would be held later that day. Around 15 minutes later, the employees were handed a letter advising them that, following the consultation, USC could not identify any alternative to redundancy and they were dismissed.

On 30 January 2015, the Redundancy Payments Service asked the administrators whether a form HR1 had been lodged. Due to an apparent oversight, form HR1 was not lodged by the administrators until 4 February 2015. In July 2015, the Secretary of State issued proceedings against Mr Palmer (and the director) for failure to follow redundancy procedures under s.194 TULRCA and, specifically, failure to lodge form HR1 with the Redundancy Payments Service in the required timeframe.

The Magistrates’ Court found that Mr Palmer (as administrator) could be prosecuted for offences under s.194 TULRCA. Mr Palmer sought a judicial review of that decision to ascertain whether it was in theory possible to prosecute an administrator under s. 194. The Court held that administrators are capable of being prosecuted under s.194 TULCRA. From the date they are appointed, only they are in a position to notify the Redundancy Payment Service as they are carrying out a managerial function in place of the directors. The case will now proceed in the Magistrates’ Court to determine whether Mr Palmer committed a criminal offence.

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Danielle works on a variety of matters including settlement agreements, reviewing policies and procedures and drafting training materials.

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Restrictive covenants in practice

Blog | Employment

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What are restrictive covenants?

Whether an employee has left an organisation and is looking to set up on their own or join a competitor, a departing employee is likely to have acquired an insight into an employer’s confidential business operations, often helping them gain an unfair competitive edge.

Restrictive covenants are clauses that are incorporated into a contract of employment that seek to restrict the actions of an individual after their employment has terminated. They play an important role in protecting an employer’s commercial interests.

Broadly speaking, restrictive covenants fall into the following categories:-

Non-solicitation of clients/ customers

These covenants prevent an employee from attempting to persuade clients or customers to move their business. Usually, solicitation occurs when a former employee contacts a client to encourage that client to move its business from the former employer.

Non-dealing with clients/ customers

Like non-solicitation clauses, except these go further and try to prevent the employee from dealing with clients or customers even where they didn’t try to solicit them.  These are more restrictive than non-solicitation covenants and therefore are at greater risk of being found to be unenforceable.

Non-competition

This covenant seeks to prevent an employee from working for a competitor for a set period of time after termination of their employment. This kind of covenant can typically span between 3 – 12 months depending on the ex-employee’s seniority and/or access to confidential information.

Non-poaching of employees

These restrictive covenants prevent an employee from approaching former colleagues and persuading them to join a new business.

So when is a restrictive covenant enforceable?

Restrictive covenants are a restraint of trade and anti-competitive.  As a result, as a general principle, courts will not enforce restrictive covenants where the scope of the restrictions is wider than the employer needs to protect its legitimate business interests.  For this reason, it is usually better for an employer to have narrow covenants that are likely to be enforceable, as opposed to wide covenants which may look like they offer fantastic protection but which are actually unenforceable.

The courts will consider a whole host of factors in this regard, including the following:

  • Does the restriction last for a reasonable amount of time? 

  • Is the restrictive covenant limited in geographic scope? The wider the geographical area in which the employee is prevented from working, the harder it will be to justify the clause (albeit increased globalisation has made this factor less important in many industries).

  • Is the scope narrowly drafted and does it reflect the specific circumstances of the employment?

  • Did the employee receive a benefit in return for accepting a restriction?

  • The seniority of the employee.

  • Did the employee have access to confidential information or clients?

  • The loyalty of customers in the relevant market.

  • The standard industry practice in the context of a reasonable restrictive covenant.

  • Whether the restrictive covenant was reasonable at the time the contract was entered into i.e. when the employment started or when a new contract was signed by the employee. This is why it’s so important to update covenants as employees progress through an organisation.

A recent case

Law by Design Ltd v Ali [2022] EWHC 426 (QB) – Ms Ali was an experienced employment lawyer who worked for Law by Design Limited, which was a niche practice based in Manchester. The practice provided advice to clients within the healthcare services sector, particularly specific NHS entities in the North West of England and one in Hertfordshire. The majority of Ms Ali’s time was in the provision of employment advice to those entities.

Ms Ali’s service agreement, including the covenant, had been agreed between the parties as recently as 2021, less than four months before Ms Ali resigned.

The restriction required Ms Ali not to be “involved in any capacity with any business concern which is (or intends to be) in competition with any Restricted Business”. Restricted Business was defined as “those parts of the company with which the employee was involved to a material extent in the 12 months before termination”

The High Court found the non-compete covenant in the contract of employment enforceable.

The High Court noted that operation of the covenant was limited to parts of the firm in which Ms Ali was involved to a material extent proximately to her departure from the firm. This device ensured that the covenant was reasonable in the scope of its operation. In relation to duration, 12 months was considered reasonable by the court (as opposed to a shorter period) because 12 months would be reasonably necessary to find, successfully recruit, and then train/integrate a lawyer in a small firm working in a niche area in Manchester.

If you would like any advice on the drafting or enforcement of restrictive covenants, please contact a member of the employment team.

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Voluntary redundancy – Are you really safe from an unfair dismissal claim?

Blog | Employment

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Until recently it is fair to say, that where a business is having to consider making compulsory redundancies and employees are given the ability to volunteer for redundancy (often on the basis of an enhanced redundancy payment), the likelihood of an unfair dismissal claim being presented is somewhat negligible.

However, a rather large shadow has been cast over that general proposition by the recent case of White v HC-One Oval Ltd.  While the facts of this case are slightly unusual for most voluntary redundancy scenarios, it does provide us with a refreshing reminder that we should not assume that voluntary redundancy is a risk free option.  It should not be forgotten that voluntary redundancy is after all a dismissal and not a resignation.

Ms W worked part-time as a receptionist. She raised a grievance alleging that she had not received an acting up allowance.  However, shortly after her grievance was submitted, HC-One announced that it was reducing the number of employees carrying out reception and administrative work. Ms W was provisionally selected for redundancy, and she subsequently requested voluntary redundancy, which was agreed.

Because Ms W had requested voluntary redundancy, and had left the business, HC-One decided that they would not progress her grievance.

Having left the business, Ms W submitted a claim for unfair dismissal.  She argued that the redundancy was a sham on the basis that HC-One had taken on a new full-time receptionist several months before the redundancy exercise, and that this person had been retained to do both reception and administrative work. Ms W alleged that she had been targeted because the company wanted to get rid of part-time staff and also because she had raised a grievance.

As part of the defence, HC-One submitted an application to the employment tribunal (ET) asking for her claim to be struck out because it had no reasonable chance of succeeding (given that she had volunteered for voluntary redundancy).  The application was successful and the ET struck out her claim.

Ms W appealed to the employment appeal tribunal (EAT) and was ultimately successful.  The EAT found that the tribunal should not have struck out the claim.  If Ms W's account of the background to the redundancy was accepted (which the ET did not consider), the facts known to the decision maker (i.e. the dismissing manager) might well be found to include matters other than just Ms W's request for voluntary redundancy. In addition, Ms W alleged that the redundancy process was a sham, and the ET would therefore need to consider the fairness of the process, before making any final decision.

Learning points from this scenario

In this case, HC-One did not use a settlement agreement as part of the voluntary redundancy arrangement.  Had they done so, then clearly Ms W would have had a much more difficult task of bringing a claim.  Settlement agreements settle most statutory and contractual claims (like unfair dismissal and discrimination) and that is why they can be so useful where the business wants to avoid any risk of those claims. However, it is not always necessary to use settlement agreements for voluntary redundancy arrangements, but where (as in this case) there are outstanding grievances or complaints around the redundancy process generally, then you may want to consider making completion of a settlement agreement a conditional part of the voluntary redundancy exercise (particularly where the employee has over two years’ service).

Settlement agreements do usually come at a slightly additional cost to the business, and so where it is decided not to use those agreements, you should ensure that a fair redundancy process is adopted (making sure that there is some consultation with those selected) to ensure that the employee is given an opportunity to raise any specific queries, and any internal procedures (such as grievances) are progressed and resolved. In short, it may not pay to cut any procedural corners during the redundancy exercise if you choose not to use a settlement agreement.

For the most part, most businesses will be able to assess the risks of specific individuals, and for those that present a greater risk, use a settlement agreement to avoid any problems arising later.

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Compulsory COVID vaccinations for care workers to end on 15 March 2022

Case Law Update

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In November 2021, the Government introduced a new law requiring mandatory vaccination for staff in Care Quality Commission (CQC) registered care homes in England. The media attention regarding this law and the many resulting dismissals of staff in the CQC sector, could not be missed. The same requirements were due to be rolled out for all NHS staff on 3 February 2022.

However, on 31 January 2022, shortly after the case of Allette v Scarsdale Grange Nursing Home Ltd, was decided and just days before the NHS requirement was due to come into force, the Government did a U turn on its plans to make COVID vaccinations mandatory for NHS staff in England, citing that it was “no longer proportionate to require vaccination as a condition of deployment by statute”. It confirmed that, subject to public consultation and parliamentary approval, the regulations would be revoked.

As of 1 March 2022, it has been confirmed that compulsory COVID vaccinations for care workers are indeed being scrapped in England. The requirement will end on the 15 March 2022. It therefore seems highly likely that, set against this new landscape, businesses and even health care settings, will find it much harder to justify a mandatory vaccination policy.

The care worker in this case below was fairly dismissed at a time when there were no laws in place requiring mandatory vaccination. However, it was also a time when COVID was far more prevalent and the risks to individuals far higher.

The case in question

The case of Allette v Scarsdale Grange Nursing Home Ltd, concerning the dismissal of a care home employee for refusing to be vaccinated against COVID 19 in January 2021 was not unfair, according to the employment tribunal.

The background to the case

The care assistant worked in a nursing home providing residential care for dementia sufferers. In December 2020, the roll-out of the COVID-19 vaccine to nursing home residents and staff as a priority was due to begin. SGNH Ltd, the care home operator, decided to make it a condition of continued employment that all staff were vaccinated.  Allette refused the vaccine stating that she did not trust the vaccine’s safety.

At a disciplinary hearing on 28 January, Allette notified her employer for the first time that she had a religious objection to the vaccine based on her Rastafarianism. Her employer also explained that the home’s insurers said they would not provide public liability insurance for COVID-related risks after March 2021 and they faced the risk of liability if unvaccinated staff were found to have passed the disease on to a resident or visitor.

It was concluded after the hearing that Allette did not have a reasonable excuse for refusing the vaccine and she was therefore dismissed for refusing to follow a reasonable management instruction.

Allette claimed unfair and wrongful dismissal but the tribunal rejected both claims, based on:

  • The mandatory vaccination policy corresponded to a pressing social need of reducing the risk to residents.

  • It was accepted that Allette had a genuine fear of the vaccine and scepticism but it was unfounded and unreasonable and not a reasonable excuse to refuse the vaccine - and did not affect her rights under Article 8 of the Human Rights Act 1996 and also met the reasonableness test under S.98(4) of the Employment Rights Act 1996.

  • The care home had a duty, both moral and legal, to protect its residents and its decision to introduce a mandatory vaccination policy was made at a time when the virus was circulating rapidly and most of the population was unvaccinated. It found that in this context the interference with Allette’s private life was proportionate.

  • The connection to Rastafarianism was rejected as it was only bought up at the 11th hour.

  • Allette claimed her employer should have steered her towards independent scientifically robust resources for information on the vaccine to allay her fears and scepticism but this was rebuked as information was widely available from Public Health England.

  • Allette also claimed that as she has recently recovered from COVID she would have antibodies but the advice from Public Health England at the time was that it was possible to contract and transmit the virus more than once – evidence of this was rife.

Taking all this in account the tribunal ruled that dismissal was within the range of reasonable responses.

What does this mean for employers?

The situation as of 15 March is that compulsory vaccination of care home workers is no longer law. One has to wonder, whether set against the current differing landscape, the Tribunal would have made a different decision. The constant change in these ‘COVID times’ shows just how important it is to always seek advice on your particular business circumstances before introducing any COVID policies or taking any related disciplinary action. Employers should review any policies that were introduced and might now be viewed as out of date.

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Helen is an expert in employment law, HR and commercial matters, including all manner of employment law issues (ranging from grievances and disciplinaries through to complex restructures and redundancy exercises), high value cross-border commercial contracts and business turnaround advice.

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The menopause in the workplace –
how best to support staff and our fixed fee policy package

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As the population in general gets older, employers are having to deal with many issues linked to having an older workforce.  One of these issues is the menopause and the difficulties it can cause for staff who are going through it.

Employers have typically been slow to recognise the issues faced by menopausal women, and many women feel uncomfortable discussing it, as it is often seen as a taboo subject.  However, acknowledging these difficulties and assisting women to remain in work in spite of them, will be a significant factor in retaining female staff in this age bracket. Retention of experienced staff (whatever gender) is vital in avoiding the loss of key skills and experience from the organisation. Retention of older female staff can also have benefits in addressing the gender pay gap.

Menopause: The facts

The menopause is a natural stage of life for women, usually in their late forties/early fifties, although it can also happen earlier or later. Part of the process includes the “perimenopause” which is when a woman's body is starting to change.

There are many symptoms of the menopause including: hot flushes; difficulty sleeping and night sweats; feeling tired and lacking energy; mood swings; anxiety and panic attacks; difficulty concentrating and focussing; and migraines and other aches and pains.

It is important to note that the menopause affects every woman differently both emotionally and physically. The impact it has on an individual’s health can affect how they work, their relationships with colleagues and has knock-on effects on absence and productivity.

Menopause: The law

The menopause and perimenopause are not specifically protected under the Equality Act 2010. However, if a worker is treated unfairly because of the menopause or perimenopause, this could amount to discrimination because of, for example, their sex; a disability; and/or their age.

  • Sex discrimination - Unfair treatment of a worker because of their sex could lead to a discrimination claim, for example if an employer treats a woman's menopause or perimenopause symptoms less seriously than it would a male worker's health condition when considering a drop in job performance.

  • Disability discrimination - A disability is a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. This is a broad definition and a worker's menopause or perimenopause could potentially be regarded as a disability by an employment tribunal. If a worker has a disability, an employer must consider making changes to reduce or remove any disadvantages the worker experiences because of it (i.e. reasonable adjustments).

  • Age discrimination - Workers are protected against unfair treatment because of their age. This may include unfair treatment of workers because thy are going through the perimenopause or menopause.

In addition, the Health and Safety at Work Act 1974 says an employer must, where reasonably practical, ensure health, safety and welfare at work.  An employer must minimise, reduce or where possible remove workplace health and safety risks for workers. This will involve carrying out a health and safety risk assessment with a view to ensuring menopausal symptoms are not made worse by the workplace and/or its work practices, and making changes to help a worker manage their symptoms when doing their job.

Menopause: Your questions answered

Our fixed fee menopause policy

We’re offering a fixed fee menopause policy drafting service. For a fixed price of £950 plus VAT*, our team of experts will prepare a bespoke menopause policy for your business. This includes:

  • A consultation to determine the best approach for your organisation and employees

  • Advice from a dedicated team of experts who will work with you to create a policy unique to your organisation and its ethos

Outside of this fixed fee package, our team of employment law experts are also on hand to work with you once you have your draft policy prepared, including:

  • Consulting with employees, staff associations and unions

  • Advising on how to communicate with staff about the menopause policy

  • Evolving your menopause policy in line with Government policy changes and other developments

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Helen is an experienced employment lawyer, who works proactively with clients to identify solutions to complex HR issues. Helen has worked with a number of client to implement a menopause policy across a variety of sectors.

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Administrators and redundancy – is it about to get messy?

Blog | Corporate Restructuring & Insolvency

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The long running case of R (on the application of Palmer) v Northern Derbyshire Magistrates’ Court [2021] EWHC 3013 has sent ripples of concern through the insolvency industry, when it confirmed that (in theory at least) administrators can be prosecuted for a failure to follow redundancy procedures prescribed by sec. 194 Trade Union and Labour Relation (Consolidation) Act 199 (TULCRA). Insolvency practitioners across the country are now anxiously awaiting the outcome of the court proceedings which could place them in an insidious conflict between their duty to act in the best interests of creditors and ensuring they do not put themselves at risk of criminal prosecution.

The background to the case

West Coast Capital (USC) Limited (USC) was placed into administration by its director on 13 January 2015, when Mr Palmer was appointed as one of the administrators (two others were also appointed, but the division of responsibilities meant that only Mr Palmer was subject to proceedings).

On the same date, a pre-pack sale of the business occurred, which expressly excluded a warehouse. The following day, the employees of the warehouse (84) were notified by Mr Palmer that they were at risk of redundancy and that a consultation meeting would be held later that day. Around a quarter of an hour later, they were handed a letter advising them that following the consultation USC could not identify any alternative to redundancy and they were dismissed.

On 30 January 2015, the Redundancy Payments Service asked the administrators whether a form HR1 had been lodged. The form HR1 was lodged by the administrators on 4 February 2015, who explained that it was filed late due to an oversight. In July 2015, the Secretary of State (SoS) issued proceedings against Mr Palmer (and the director) for failure to follow redundancy procedures under sec. 194 TULRCA and, specifically failure to lodge form HR1 with the Redundancy Payments Service in the required timeframe.

Under sec. 193(2) of TULRCA an employer proposing to make 20 or more employees at one establishment redundant within a period of 90 days or less must notify the SoS of their proposal before giving notice to terminate a relevant employee’s contract of employment, and do so at least 30 days before the first of those dismissals takes effect.

Sec. 194 of TULRCA states that an employer who fails to do so commits an offence and is liable on summary conviction to a fine. Where such an offence is committed by a corporate body and is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of, any director, manager, secretary or another similar officer of the body corporate, or any person purporting to act in any such capacity, they as well as the body corporate is guilty of the offence and liable.

The outcome

The Magistrates’ Court found that Mr Palmer (as administrator) could be prosecuted for offences under sec. 194 TULRCA. Mr Palmer sought a judicial review of that decision to ascertain whether it was in theory possible to prosecute an administrator under sec. 194, and this case is the outcome of that judicial review.

Mr Palmer argued that:

  • He was not a “director, manager, secretary or another similar officer” of the company and therefore fell outside the remit of sec. 194

  • An obligation on an administrator to give 30 days’ notice of the proposed redundancies could have serious ramifications for the administration process and place the administrator in an untenable position of conflict. It would mean they have an obligation to retain employees for a minimum of 30 days to avoid criminal prosecution whilst also being under a duty to act in the best interests of the creditors - which may require the immediate termination of employment.

  • Waiting more than 14 days before terminating the employment contracts would mean that the company adopts the contracts and elevates employee claims to preferential status.

What now for administrators?

The court on judicial review held that administrators are capable of being prosecuted under sec. 194. From the date they are appointed, only they are in a position to notify the Redundancy Payment Service as they are carrying out a managerial function in place of the directors. The issue of whether this makes administrations untenable is a matter for Parliament. The case will now proceed in the Magistrates’ Court to determine whether Mr Palmer committed a criminal offence.

The decision places administrators in an insidious conflict between their duty to act in the best interests of the creditors and ensuring they do not put themselves at risk of criminal prosecution. To date, there have been no successful prosecutions of administrators under sec. 194. The Magistrate decision is now anxiously awaited.

Pending the outcome of the Magistrates case, our advice to administrators where there is even a possibility of more than 20 redundancies taking is to carefully consider (pre-appointment) whether retention of employees is tenable or not and, if it is, determine whether the purpose of the administration can be achieved if employees must be retained for 30 days post-administration, and/or if redundancies are likely, review the steps taken by the directors to ascertain if the correct documents have been lodged within the required timescales. Subsequent to an appointment we’d suggest you assess the employee position and immediately file the relevant form HR1 with the Redundancy Payment Service if 20 or more redundancies are likely.

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Frank is recognised as an expert in restructuring and insolvency law, and one who provides decisive practical solutions.

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Employment Appeal Tribunal holds striking employees are protected from detriment

Blog | Employment

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In a case of real interest to those involved in unionised sectors of the economy, the EAT has held the provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) which protect workers from detriment connected with trade union activities, also confers protection on workers who take industrial action, notwithstanding as to whether such action is protected under the legislation. In addition, the EAT held that striking workers are protected from detriment under the Employment Relations Act 1999 (Blacklists) Regulations 2010 (“Blacklisting Regulations”).

The background to the case

Ryanair DAC v Morais and ors

A group of Ryanair pilots participated in a strike called by the recognised trade union, BALPA. As a result, Ryanair withdrew concessionary travel benefits for a year from the pilots. The pilots brought claims arguing the withdrawal of benefits constituted an unlawful detriment under s.146 of TULR(C)A. In addition, the pilots brought a claim under regulation 9 of the Blacklisting Regulation, which prevents detriment in respect of a prohibited list.

Following a preliminary hearing, it was held the pilots were taking part in trade union activities in relation to both the Blacklisting Regulations and section 146(1)(b) of TULR(C)A.

What are the key points in this case?

TULR(C)A

The tribunal considered that to be able to protect the pilots’ trade union rights under Article 11 of the European Convention on Human Rights (ECHR), it was necessary to interpret section 146 as including participation in a strike, although TULR(C)A does not expressly state as such, which had led to uncertainty on the point. This was then upheld on appeal by the EAT.

Blacklisting Regulations

The EAT also held in relation to the Blacklisting Regulations, that the tribunal was correct in concluding that taking part in trade union activities includes participating in a strike or other industrial action organised or called by the union and that this interpretation is not limited to protected industrial action. Therefore by keeping a list of those who have taken part in industrial action and using it for detrimental purposes (the removal of the travel concessions), Ryanair had breached the Blacklisting Regulations.

What does this recent case highlight for employers?

This decision is an important one that builds on the additional protections for workers taking part in industrial action, after the conclusion of that action, and extends the protection against detriment further by clarifying the scope of both of the protections under TULR(C)A, about which there had been some doubt, and also the Blacklisting Regulations.

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What is harassment and how to stop it

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In this guide, we take a look at what harassment is and how to stop it

Harassment of any type can be a distressing experience if are a victim of it; or a difficult problem to deal with if a family member or employee has been accused of it.

To be able to deal with harassment it is firstly important to understand it,  Our simple guide looks at the different types of harassment, the burden of proof required to prove it and steps that can be taken to stop it.

Harassment – What is it?

The key definition of harassment is found in the Protection from Harassment Act 1997 which provides that ‘a person may not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of the other.

There is plenty of scope for bringing various different types of conduct within this definition.

One of the key issues that needs to be determined is what is a course of conduct. This is set out in statute again and it involves, in relation to the same person, conduct on at least two or more occasions; or in the case of conduct in relation to two or more people, conduct on at least one occasion in regard to each of them.

What conduct can count as harassment?

Actions such as stalking, up-skirting and other conduct that has been in the media, are now reasonably well recognised as potential harassment.  However, one of the most important forms of conduct which is not always considered is speech.  This can include written media and most importantly, in the current climate, can include social media publications.

Not only is there a right to be protected from harassment in a written or verbal form, there is a right to freedom of speech.  A court has to perform a balancing act and conduct has to be sufficiently serious before it can be found to be harassment.  For that reason, while claims can be brought for harassment alone, generally people do not regard something truthful being said about them, which is in the public domain and not private, as being harassing.  And for that reason often claims are brought in conjunction with defamation claims; or misuse of private information claims.

How do I make a claim for harassment?

  1. You must be able to show a course of conduct as above;

  2. You must be able to show if it is targeting an individual;

  3. Importantly it has to be calculated to and does cause alarm, fear or distress; and

  4. There must be conduct that is oppressive and unreasonable as opposed to merely unattractive, unreasonable or regrettable.

As mentioned above only two actions can be enough to bring a claim but the content of the action however is still critical to establish a claim for harassment.  It does not mean that will always be the case however and the fewer the events and the longer the time between them the less likely it is that they will amount to harassment. Recent judicial authority uses the helpful terms ‘persistent and deliberate’ and they are a good guide.

What if someone says they didn't know their actions were harassment?

It is not enough for someone to say they didn’t know. There is an objective test and key is often whether someone ought to have known their conduct was harassing.  It is a test however judged against not that specific individual as few defendants will ever say that they knew that they were causing alarm or distress to a claimant.

If a claim succeeds is someone found ‘guilty’?

No, there are three particular defences to a course of conduct which would otherwise be harassing and those are:

  • it was for the purposes of preventing or detecting crime;
  • it was under some rule of law or to comply with some other requirement imposed upon a person; or
  • that in the particular circumstances pursuing that course of conduct was reasonable.

When it comes to defences, inevitably for the vast majority of defendants, it is the third defence that needs consideration.

What does to pursue a course of conduct being reasonable mean?

Again this is an objective test and it is assessed at the time that the conduct took place and because reasonableness depends upon the circumstances of each individual action and it is therefore very much dependent upon specific facts.  For a start however, a court will always look at the exact type of conduct be it physical, publication of words or otherwise; the timing of it; the frequency of the conduct.

What are the consequences of a claim if it is successful?  Is a harassment claim worth bringing or something to worry about? 

The answer is yes.

In the first place financial damages can be awarded for anxiety caused and any financial loss that might have been suffered; but to be a claimant you do not need to have suffered financial loss.

Most people’s main concern is stopping harassment first and getting some sort of recompense second and an injunction is a legal way of saying someone must not do something and is one of the most common remedies people seek.

How do I get an injunction to stop harassment? 

if you are dealing with something not involving speech then it is the traditional requirements for an injunction that must be met, this is a matter of whether there is a serious question to be considered and where the balance of convenience lies – for more information on this burden you can see our guide to injunctions. If it was involving speech then you also engage the right to freedom of speech of a publisher.

Is it true that you cannot get an injunction for defamation where someone says they have a defence.  What is the difference here?

This is a very complicated issue but the ultimate difference is between the form of what is said and the manner in which it is said; this is one reason why claimants and their lawyers have in recent years sought to use claims for harassment; claims for data protection and other rights to succeed in getting injunctions where otherwise they might have failed.

Courts have suggested that (with the assistance of lawyers) that some degree of self-help is potentially to be expected.  The courts address this as follows; the first step is for example some self-resilience trying to shrug off unpleasant messages or comments which are part of day to day irritations and annoyances; secondly if communication is specifically directed towards someone then take advantage of practical options available to prevent unwanted contact – that can relate to the platform on which communications are made or other various tools for blocking content which might mean it is not necessary for a court to grant an injunction unless these have been explored.

So, can I try to get harassment stopped myself?

The short answer is yes but as explained above, people speaking also have the right to free speech and many platforms such as Twitter, YouTube, Facebook or any other platform have to not only respect that but they also set great store by that freedom of expression and generally involvement of lawyers is necessary to succeed; unless the harassment is so blatant and so serious as to be so obvious that a strong claim lies there.

For more information or to consult us about a harassment claim, please contact Daniel Jennings.

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DfE consultation for proposed changes to Keeping Children Safe in Education – ends 11 March 2022

Blog | Education

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In January this year, the DfE launched a consultation into the proposed changes to Keeping Children Safe in Education (KCSIE). Responses to the consultation must be made by March 11 2022. The proposed changes are due to come into effect from September 2022.

A draft version of the proposed KCSIE 2022 is available alongside the consultation documents.

The main proposed areas of consultation include:

  • Seeking feedback on whether the guidance contained within KCSIE 2021 provides sufficient detail as to the safeguarding obligations for 16-19 academies, special post-16 institutions and independent training providers.

  • Whether KCSIE should acknowledge that children may not be ready or know how to report abuse, exploitation or neglect.

  • The proposed additional content (at paragraphs 82 – 93 of the draft KCSIE 2022) to remind Governors and Proprietors of their legal duties under the Human Rights Act 1998 and the Equality Act 2010 (including the Public Sector Equality Duty, where applicable) regarding safeguarding, sexual violence and harassment.

  • The possibility of strengthening the training requirements to make it an explicit requirement that all governors and trustees receive safeguarding and child protection training (including online safety) at induction and receive regular updates.

  • Requesting feedback regarding whether the changes to Parts 2 and 5 of KCSIE 2021 implemented last September (including the guidance on systems for reporting abuse) have supported schools and colleges in taking a whole school approach to safeguarding.

  • Requesting feedback on whether changes regarding online safety introduced in KCSIE 2021 have helped embed online safety into schools’ and colleges’ approach to safeguarding. The consultation also requests participants’ views on any further changes that should be made to KCSIE to further support schools and colleges in how to keep children safe online both in school and during remote learning.

  • Requesting feedback on whether changes regarding online safety introduced in KCSIE 2021 have helped embed online safety into schools’ and colleges’ approach to safeguarding. The consultation also requests participants’ views on any further changes that should be made to KCSIE to further support schools and colleges in how to keep children safe online both in school and during remote learning.

  • A proposal to remove information regarding the role of the designated safeguarding lead from Part 2, to new Annex C, with a view to encouraging more people to read the job description of a DSL.

  • The proposed introduction of new paragraphs 198 and 199 of the draft KCSIE 2022 which recognise that LGBT children may be at greater risk of harm due to their sexual orientation (or perceived sexual orientation).

  • Concerning Part 3 on Safer Recruitment, KCSIE 2021 saw a significant overhaul with a view to making the guidance easier to follow and akin to a typical recruitment exercise. The DfE is now seeking feedback on whether the changes have achieved this aim and what (if any) further changes may be useful.

  • Seeking views on the proposed suggestion that schools and colleges should consider undertaking online searches of shortlisted candidates (such as using social media) prior to interview.

  • Requesting feedback on whether the new low-level concerns guidance now included at Part 4 of KCSIE 2021 is useful to schools and colleges in recognising and handling concerns that do not meet the harm threshold. Also seeking views on whether schools/colleges would disclose substantiated low-level concerns in employee references.

  • The proposal to remove the standalone Sexual Violence and Sexual Harassment advice and incorporate it within KCSIE 2022.

  • An information gathering exercise to expand the DfE’S knowledge base regarding issues previously raised in consultations which the DfE is aware are concerns to participants but that it has not yet addressed within the draft guidance. This includes issues such as the sharing of nudes and semi-nudes, and filtering and monitoring requirements for schools.

There is a table at Annex F of the proposed new guidance (page 168) which summarises all of the proposed changes which may be useful, alongside this note, when completing the consultation form.

We would encourage schools and colleges to submit their views in the consultation to ensure that the final version of KCSIE 2022 is as useful and workable to the sector as possible.

The consultation closes on 11 March 2022 and can be accessed here. The response to the consultation will be published later this year.

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COVID-19: right to work guidance updated and what it means for employers

Blog | Employment

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The Home Office updated its Coronavirus (COVID-19): right to work check guidance yesterday (22 February 2022) – extending the end date for the temporary adjusted right to work checks from 5 April 2022 to 30 September 2022 (inclusive).

What are the adjusted measures?

The adjusted measures that were originally published on 30 March 2020 and will now be in place until 30 September 2022 (inclusive) include:

  • Job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals

  • Checks can be carried out over video calls with the employee holding up the original document to the camera, which is then checked against the digital copy. The digital copy should then be annotated ‘adjusted check undertaken on [insert date] due to COVID-19’

  • Employers should use the Home Office employer checking service if a prospective or existing employee cannot provide any of the accepted right to work documents

Employers should be aware it remains an offence to knowingly employ someone who does not have the right to work in the UK.

Why have the adjusted measures been extended?

At the end of 2021, the government announced its intention to enable employers and landlords to use certified Identification Document Validation Technology (IDVT) service providers to carry out checks on their behalf, including for British and Irish citizens, from 6 April 2022.

Positive feedback has been received since this announcement and it is hoped deferring the adjusted measures end date will ensure employers have sufficient time to develop commercial relationships with identity providers.

What will be the benefit of the IDVT scheme?

Employers are encouraged to embrace the future digitalisation of right to work checks and plan the necessary changes to their current pre-employment on-boarding processes to ensure a smooth transition from existing practices.

IDVT service providers will need to be certified against robust rules and it is expected further information on the IDVT scheme and the list of certified providers will be published very soon.

What steps should I take now?

The Home Office believes the introduction of the IDVT scheme will mean employers can guarantee prospective employee's identities, using consistent and more secure methods, which will, in turn, reduce the risk of them employing illegal workers and allowing recruitment to continue in a safer way.

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Independent Commission Report recommends better collaboration across HE, FE in the UK

Blog | Education

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On 7 February, the Independent Commission on the College of the Future released their much anticipated further report, “Going Further and Higher”, on how collaboration between colleges and universities can transform lives and places.

Background

The Commission is looking at what the UK wants and needs from its colleges in 10 years’ time and what changes are needed to achieve this. Following extensive consultation with the sector, they released their vision for the future through their report published in 2020.

The Commission is now building on this work by exploring themes that emerged from their report, and the first of these themes is collaboration.

Collaboration rather than competition

Collaboration is something that we feel strongly about. We are fortunate enough to work with many wonderful institutions across the FE and HE sub-sectors, and already see the benefit of cross-sector working in many places.

Recent policy announcements by the government, such as the FE Skills White Paper of 2021, while welcome in themselves, have however all too often given the sense that one education sub-sector was being given favour and preference over another. In recent times, and in accordance with the government’s “levelling up” agenda, that has seemingly been in favour of FE, and to the potential detriment of HE. That in itself is an about turn on the last 15 or so years, where policy often focussed on HE, while investment in FE was neglected.

However, our strongly held view is that it doesn’t have to be like this - and that by encouraging working together, not in silos, or worse still against each other, institutions can achieve more, and create better results for their students and for all our futures. We are therefore delighted that the Commission, advised by an expert panel, including our very own Head of Education, Smita Jamdar, have taken the time to explore this issue and publish their findings.

The report’s recommendations

The report makes a number of recommendations, both for sector leaders and for the governments of our four nations.

In terms of sector leaders, the report recommends building strong place-based networks. The Commission sees this involving an agreement as to the institutions involved, embracing existing local skills and specialisms. This would then allow the development of a cohesive education and skills offer for local people, employers and communities built around lifelong learning, ensuring inefficient duplication and competition is reduced. The Commission also recommends a movement beyond personal relationships and agreement on how the whole institution is involved in collaboration, with clear roles and shared responsibility for partnership.

For the government, the Commission recommend setting an ambitious 10 year strategy to ensure lifelong learning for all and to deliver on national ambitions. Echoing the concern above, the Commission want to see a balanced investment in FE and HE to ensure the whole education and skills system is sustainably funded, so that colleges and universities can work in the interests of their local people, employers and communities. The Commission also makes recommendations on equal funding support for students across HE and FE, creating a single funding and regulatory body for all post-16 education and skills and defining distinct but complementary roles for colleges and universities to avoid a turf war over who delivers various types of education and training.

The full report can be accessed here.

Next steps

The Commission will continue to push the theme of collaboration through a series of events across the course of this year, with a view to encouraging both the sector and government to get on board with its recommendations, for the benefit of the whole sector and us all.

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Tom is ranked as a Next Generation Partner in the Legal 500 United Kingdom 2022 edition and is also part of a team ranked as a Top Tier Firm for Education in the same edition.

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Employment winter update: News in brief

Technical | Employment

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A quick round-up of recent employment law developments
Click below to jump to the relevant piece

New Statutory Rates

Each year in April there is traditionally an increase in various statutory rates in line with the Consumer Prices Index (CPI). This year will be no different.  With effect from 11 April 2022, Statutory Sick Pay will increase from £96.35 to £99.35 and the statutory weekly rates for maternity pay, adoption pay, paternity pay, shared parental pay, parental bereavement pay and maternity allowance will all increase from £151.97 to £156.66.

From 1 April 2022 the following increases to the National Minimum Wage rates and the National Living Wage will apply:

National Minimum Wage

Screenshot 2022-02-02 at 13.57.21

Fire and Rehire Practices

The ethics of ‘fire and rehire’ practices has been a popular topic of late. This refers to those instances when employers dismiss and then rehire employees on new terms (usually less favourable ones). Keir Starmer has publically stated that the process will be outlawed if Labour comes to power. ACAS has now published guidance to help employers avoid such practices. ACAS is urging employers to consider in the first instance whether a contract change is definitely necessary to solve the relevant issue; there may be other ways of achieving the same goal. If a change in contract is necessary, employers are urged to consider the risks and their options, bearing in mind the circumstances. ACAS provides detailed information in its guidance as regards consultation requirements and how employers can seek to reach an agreement with their employees. Indeed, it encourages them to ensure that they take the time to do so; advising that fire and rehire should very much be a last resort.

Gender Pay Gap

The Government states that the pay gap has significantly fallen, with an additional 1.9 million women in employment since 2010.  However, new research carried out for the Institute of Fiscal Studies (IFS) Deaton Review of Inequalities has concluded that taking account of women’s increased educational achievement, there has, in fact, been hardly any change to the gender pay gap in the last 25 years. The research measures the gender earnings gap across three different margins; employment, hours and wage rates.  It concludes that, while raising the National Minimum Wage has assisted with closing the gap for lower earning workers, it has not had any effect on the gap for graduates. Parenthood is also a critical turning point it states, at which point the gap in both employment and hours immediately and substantially increases. Ultimately, the researchers conclude that policies are inadequate as they still accept “traditional gender norms” and the perception of women as caregivers.

COVID-19: Repayment of CJRS Grants

On 2 December 2021, HMRC updated its Guidance, Pay Coronavirus Job Retention Scheme grants back. It details how employers must pay back all or part of their CJRS grant if they have overclaimed. The guidance also adds a new section that addresses what actions must be taken if employers have not paid employees enough. This includes employers being required to top wages up to the required levels (the lower of either 80% of their wages or the rate of £2,500 per month (or equivalent) for hours they did not work). This must be done within a “reasonable period” and usually by the indicative date set out in the guidance. Employers must ensure they are on top of this and have complied with the CJRS grant scheme and if not, address any shortcomings as per the guidance. It should not be forgotten that there are consequences of erroneous, or worse, fraudulent claims, which include clawback, potential corporate offences and criminal liability.

Workplace safety for pregnant women during the pandemic

Maternity Action has concluded in a new report, Unsafe and Unsupported: workplace health and safety for pregnant women in the pandemic, that workplace health and safety rules are not “fit for purpose” for pregnant women. A poll conducted by the charity found that 69% were fairly or very worried about catching COVID-19 because of their work and 20% took time off or even left their jobs because of this concern. The report notes that the guidance has been inconsistent and confusing and that there has been insufficient advice and action from the Health and Safety Executive (HSE) and local authorities, leaving pregnant women without any way to address their concerns, and the impossible choice of either taking their employers to an employment tribunal (a costly and lengthy process) or continuing to work in unsafe conditions.  The report has consequently detailed 16 recommendations, including: updating guidance on the requirement for risk assessments; an annual HSE report on the number of requests for advice on health and safety raised by or in relation to expectant employees; and also extended timeframes for expectant employees or new mothers to bring employment tribunal claims.

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Employment case law update | Winter 2022

Technical | Employment

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Here we take a quick look at some key employment case law decisions from recent months.

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Menopause at work: difficulties with symptoms

In a recent case, Rooney v Leicester City Council, the Employment Appeals Tribunal (EAT) held that an employment tribunal had erred in striking out the claimant’s disability and sex discrimination, harassment and victimisation claims at a preliminary hearing.

The claimant, Ms Rooney, had made claims of constructive unfair dismissal, sex discrimination and disability discrimination due to her severe menopausal symptoms. In addition, she had brought claims for non-payment of holiday pay, outstanding expenses and unpaid overtime. Ms Rooney’s solicitors had incorrectly stated in the claim that Ms Rooney was not claiming that she had made a protected disclosure and that she accepted that her work-related stress and menopause symptoms did not amount to a disability under the Equality Act 2010.  She was unaware of this and therefore applied to amend her original claim to include protected disclosure detriment and disability discrimination.

At a preliminary hearing, the employment tribunal held that Ms Rooney was not suffering from a disability in relation to her menopause symptoms, anxiety and depression, and her disability discrimination claim was dismissed, along with her claims of harassment and victimisation. Ms Rooney's sex discrimination claim was struck out for having no reasonable prospects of success.

Ms Rooney appealed. The EAT held that the tribunal had erred in law in deciding that Ms Rooney was not disabled at the relevant time. Ms Rooney had given evidence regarding her menopause symptoms and the effect that they were having on her day-to-day activities (both physical and mental). In addition, she had been suffering from those symptoms for over 12 months at the time of her resignation. Her appeals were allowed and the claims were remitted to an employment tribunal for a decision.

This case is an example of the challenges faced by menopausal women in the workplace in showing that their symptoms amount to a disability. Following an inquiry by the Women and Equalities Committee, it is expected that there will be recommendations to amend legislation further to adequately protect menopausal women from discrimination at work.

Direct offer to employees bypassing collective bargaining was an unlawful inducement

In the case of Kostal UK Ltd v Dunkley and others, the Supreme Court held that a one-off direct offer to employees concerning pay, bypassing stalled collective bargaining, did constitute an unlawful inducement within the meaning of section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

Section 145B of TULRCA prohibits employers from inducing their workers to bypass collective bargaining in certain circumstances.

Kostal concluded a recognition agreement with Unite the Union (Unite) in 2015. This established a framework for collective bargaining and gave Unite "sole recognition and bargaining rights". The parties accepted that the agreement was "binding in honour upon them" but did not constitute a legally binding agreement. During annual collective bargaining negotiations in 2015 (relating to 2016), the company had made an offer to Unite which included a 2% increase in basic pay and a Christmas bonus equating to 2% of basic pay, in return for a reduction to overtime rates, sick pay, etc.  In a union ballot, that offer was rejected by 78% of members. Before the dispute resolution procedures in the Recognition Agreement had been exhausted, the company made direct offers to the workforce, informing staff that they would not receive the Christmas bonus if they did not accept by a deadline.  A majority of staff accepted those individual offers.  In January 2016, the company made a similar offer to those who had not yet accepted, this time without a Christmas bonus, but warning that if not accepted it may lead to termination of their employment. There was no indication as to whether there would be an offer of new employment following the termination. A large group of employees brought claims in the employment tribunal, alleging that their rights under section 145B of TULRCA had been infringed

The employment tribunal found in the employees’ favour and made a total award of £421,800. The company appealed but the EAT rejected the appeal. The EAT found that if acceptance of the direct offers meant that at least one term of employment will or would, as a consequence of acceptance, be determined by direct agreement, and not through collective bargaining, that was sufficient to amount to the "prohibited result" under section 145B. There was no requirement that the offer made, if accepted, would take future determination of terms out of the collective arena altogether.

The Court of Appeal allowed the company’s appeal. It held that a one-off direct offer to employees concerning pay, bypassing stalled collective bargaining, did not constitute an unlawful inducement within the meaning of section 145B of TULRCA.

The employees appealed to the Supreme Court, which held that there had been an unlawful inducement within the meaning of section 145B of TULRCA.

Whilst there are some uncertainties from this case, as can be seen from the inconsistent outcomes at various stages of appeal outlined above, employers should adhere to the collective bargaining framework they have signed up to (or has been imposed by the Central Arbitration Committee). Failure to follow a dispute resolution process will no doubt result in an employer on the wrong side of the law so far as section 145B of TULRCA is concerned.

Equal pay: Morrisons’ retail workers employed on common terms with distribution centre workers

In Abdar and others v Wm Morrison Supermarkets plc and another, an employment tribunal has held that retail (shop floor) workers in Morrisons and Safeway supermarkets could compare themselves for equal pay purposes with logistics (warehouse) workers in their regional distribution centres. At a preliminary hearing, the tribunal held that the majority of the claimants were employed on common terms with the logistics workers for the purposes of section 79(4) of the Equality Act 2010 (EqA 2010).

The EqA 2010 provides that, in order to bring an equal pay claim, an individual must be able to identify a more highly paid comparator of the opposite sex performing equal work at either: the same establishment; or a different establishment where common terms and conditions apply.

The claims set out that retail workers are predominantly female whereas logistics workers in the distribution centres are predominantly male, and the retail workers receive a lower hourly rate compared with the logistics workers.

Morrisons argued that because distribution centres each have their own collectively bargained terms and conditions, staff from one site could not compare themselves with staff from another site in the same group for the purpose of an equal pay claim. The employment tribunal did not agree with Morrisons on this point.

The decision is clearly a favourable one for retail workers, and whilst this is a key hurdle in the litigation process, the next step is for the tribunal to determine whether the retail worker roles are of equal value to the roles of the logistics workers.

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Emma is an experienced employment lawyer acting for a range of clients including public sector, manufacturing and engineering, care providers, and insolvency practitioners.

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Conducting a disciplinary investigation

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A disciplinary investigation is necessary when an employer needs to look further into the conduct of an employee, or to ascertain the facts surrounding an incident or allegation, prior to taking disciplinary action. This article examines how to conduct an investigation.

The need to conduct a disciplinary investigation

Even where an employee has already admitted that they have done something wrong, in many cases, it will still be necessary to conduct an investigation in order fully to understand the circumstances and ensure that everyone involved is treated fairly. It can also assist the employer in deciding its next steps, and provide valuable evidence, both against the employee and in mitigation, for a disciplinary hearing.

However, it is not always the case that a disciplinary investigation will result in a disciplinary hearing. The aim of the investigation is to establish whether the employee has a case to answer.

By following a fair, transparent and consistent process, managers can reduce the risk of unfair dismissal, breach of contract and discrimination claims.

The ACAS code of practice

The ACAS code provides practical guidance to employers and employees on the fair conduct of disciplinary procedures for misconduct or poor performance and this is the minimum standard that the law expects. If a disciplinary case reaches an employment tribunal, judges will look at whether the employer has followed the ACAS Code of Practice in a fair way.

The key principles of fairness outlined the ACAS Code are:
  1. Employers and employees should raise and deal with issues promptly and without unreasonable delay.

  2. Employers and employees should act consistently.

  3. Employers should carry out necessary investigations, to establish the facts of a case.

  4. Employers should inform employees of the basis of the problem and give them an opportunity to "put their case in response" before any decisions are made.

  5. Employers should allow employees to be accompanied at formal meetings.

  6. Employers should allow an employee to appeal against any formal decision made.

So what are the key components of a fair investigation?
1

Make sure the investigating officer is appropriate - The most appropriate person is usually the employee’s immediate line manager. However, this will be dependent upon the facts of each case. If the line manager is a potential witness to the alleged misconduct, it would not be appropriate for them to be the investigator. In this case, the employer can appoint a member of the human resources team or another line manager. An alternative is to commission an external specialist in order to preserve the objectivity and integrity of the investigation. Please do contact us if this is something we can help with.

2

Consider whether suspension is necessary – Whilst it should not be an automatic reaction, employers should consider whether it is appropriate to suspend an employee on full pay. For example, it may be appropriate where:

  • allegations against the employee involve serious misconduct;
  • where there is a potential threat to the business or other employees;
  • where it is not possible to properly investigate the allegation if the employee remains at work (for example, because they may destroy evidence or attempt to influence witnesses); or
  • where relationships at work have broken down.
3

Gathering evidence and record keeping – Evidence can take many forms including emails, telephone recordings and meeting minutes. It is important that the employer keeps records of the investigation to show that it was handled fairly and thoroughly. Record-keeping is also important to meet the employer’s obligation to provide the employee with copies of all evidence that it intends to rely on in advance of any disciplinary hearing.

4

Witnesses – Where a witness is reluctant to give evidence, the reasons for this should be explored. The employer can and should look to reassure them and encourage them to give evidence. However, applying excessive pressure where a witness is very reluctant is risky because this could of itself give rise to a claim for constructive unfair dismissal, for example.  It may be possible to give some reassurances to witnesses about the confidentiality of their involvement, but care should be taken not to over-promise in this respect.

5

Investigatory interview – It is important to keep in mind that investigation meetings are relatively informal and are not disciplinary hearings. The purpose is to enable the investigator to gather evidence. There is also no legal right to be accompanied by a colleague or trade union rep at this meeting, however, notes should be taken. Such an interview can also be undertaken remotely if necessary.

6

The outcome of the investigation - Once an investigating officer has gathered the evidence, they will need to decide if there is a case to answer and if so, the matter would then proceed to a disciplinary hearing. A key aspect of the investigating officer’s role is to prepare a report summarising the investigation, the steps they have taken, their findings and recommendations. This will assist the disciplinary panel in carrying out a disciplinary hearing.

This is a brief overview of the key aspects of conducting a disciplinary investigation but the precise nature and extent of any investigation will depend on the circumstances of the case. If you need any advice or assistance in conducting an investigation, please do get in touch.

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Lubna is an experienced employment solicitor who advises a wide range of businesses on their HR issues. Lubna also specialises in tribunal litigation.

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A return to “hybrid working”? – What would this mean for staff wellbeing?

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On 26 January, the so-called “Plan B” COVID restrictions came to an end in England.

The Government had previously re-introduced a number of measures to tackle the outbreak of the COVID-19 Omicron variant on 8 December 2021. In England, this was referred to by the Government as “Plan B” and meant a return to the compulsory wearing of face coverings in public places, and working from home, wherever possible.

Millions of office-based employees across England have therefore been back to working full-time from their home offices, kitchen tables, and garden sheds.

Although this may have been an easy and desirable transition for some, there has also been an increase in the number of employees reporting feelings of stress and loneliness when working from home, typically attributed to missing out on the in-person, human interactions associated with office working.

Most employers will have made allowances for staff to attend the office on the occasions when their required tasks made it unavoidable. However, some large employers, such as accounting giant PWC and city law firm Slaughter & May, went further and added “mental health needs” as an acceptable reason for going into the office, even if the employee’s tasks did not strictly necessitate it. This acknowledges the potential benefit to an employee’s wellbeing of being allowed to attend the workplace, particularly if, in doing so, they are able to meet and interact with clients, colleagues or managers.

Whether the latest announcement will mean a sudden surge of staff returning to work full-time in the office is uncertain but seems unlikely. It is more likely that many staff will continue to work partly from home and partly from the office (i.e. hybrid working), as was the case after the previous relaxing of restrictions. In some cases, staff may even continue to work from home much, if not all, of the time.

This is borne out by polling, which has shown a lack of appetite among office workers to return to work in the office 100% of the time, and a desire from both employers and employees for a balanced blend of home and office-based work. Shakespeare Martineau, for example, has joined this trend with its ‘empowered working’ model.

Some international companies such as Twitter and Spotify have implemented “work from home, forever” and “work from anywhere” policies, respectively. Neither company envisages closing all of their offices permanently but will re-shape their use from a place of everyday deskwork to more collaborative workspaces.

So, the impact on mental health of periods of working from home, or away from the workplace, will remain a live issue.

In the UK, from an employment law perspective, it remains important that employers consider both their office and employees’ home working environments when considering their health and safety duties towards staff. Any home working plan and risk assessment should consider both mental and physical wellbeing when working from home, and each employee’s needs should be taken into account.

When staff are working from home, employers should be issuing specific and tailored advice to look after employees’ safety and wellbeing. This might include encouraging staff to keep in contact with managers and colleagues, to keep a routine that separates work and personal life, and to take regular breaks that involve stepping away from desks and moving around.

Employers should also be mindful of the potential for an employee who is struggling with their mental health to be deemed disabled under the Equality Act 2010. The general litmus test is if the mental illness has a substantial and long-lasting impact on their ability to do day-to-day tasks.  If an employer suspects this may apply to one of their employees, they should consider obtaining a report from an occupational health provider. Employers are required to make reasonable adjustments for disabled employees, and this is best done in open consultation with the employee in question, supported by any relevant Occupational Health report or medical documents.

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Robin has experience in employment tribunal litigation and ACAS conciliation, acting for both employers and individuals. Robin also advises on non-contentious employment matters including IR35, TUPE, GDPR, contracts, and more.

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Dismissal for refusal to be vaccinated fair, rules the Employment Tribunal

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A recent case, Allette v Scarsdale Grange Nursing Home Ltd, concerning the dismissal of a care home employee for refusing to be vaccinated against COVID 19 in January 2021 was not unfair, according to the employment tribunal. However, employers should proceed with caution and would be wise to seek advice on their particular business circumstances if they too wish to make vaccinations mandatory.

The background to the case

The care assistant worked in a nursing home providing residential care for dementia sufferers. In December 2020, the roll-out of the COVID-19 vaccine to nursing home residents and staff as a priority was due to begin. SGNH Ltd, the care home operator, decided to make it a condition of continued employment that all staff were vaccinated.  The government had not made vaccinations in care homes mandatory at this stage.  Allette refused the vaccine stating that she did not trust the vaccine’s safety.

At a disciplinary hearing on 28 January, Allette notified her employer for the first time that she had a religious objection to the vaccine based on her Rastafarianism. Her employer also explained that the home’s insurers said they would not provide public liability insurance for COVID-related risks after March 2021 and they faced the risk of liability if unvaccinated staff were found to have passed the disease on to a resident or visitor.

It was concluded after the hearing that Allette did not have a reasonable excuse for refusing the vaccine and she was therefore dismissed for refusing to follow a reasonable management instruction.

Allette claimed unfair and wrongful dismissal but the tribunal rejected both claims, based on:

  • The mandatory vaccination policy corresponded to a pressing social need of reducing the risk to residents.

  • It was accepted that Allette had a genuine fear of the vaccine and scepticism but it was unfounded and unreasonable and not a reasonable excuse to refuse the vaccine - and did not affect her rights under Article 8 of the Human Rights Act 1996 and also met the reasonableness test under S.98(4) of the Employment Rights Act 1996.

  • The care home had a duty, both moral and legal, to protect its residents and its decision to introduce a mandatory vaccination policy was made at a time when the virus was circulating rapidly and most of the population was unvaccinated. It found that in this context the interference with Allette’s private life was proportionate.

  • The connection to Rastafarianism was rejected as it was only bought up at the 11th hour.

  • Allette claimed her employer should have steered her towards independent scientifically robust resources for information on the vaccine to allay her fears and scepticism but this was rebuked as information was widely available for PHE.

  • Allette also claimed that as she has recently recovered from COVID she would have antibodies but the advice from PHE at the time was that it was possible to contract and transmit the virus more than once – evidence of this was rife.

Taking all this in account the tribunal ruled that dismissal was within the range of reasonable responses.

What does this mean for employers?

Despite the employment tribunal dismissing both claims, employers should be careful not to rely solely on this recent decision. Before introducing such a mandatory vaccine policy or dismissing employees for failing or refusing to follow it, they should seek bespoke advice.

These cases are likely to turn on the facts: whether statute imposes an obligation for vaccination of staff, the nature of the business, risk to the public and employees, size and resources of the business and Government advice at the relevant time.

There is also the potential for some employees to seek to rely on anti-vaccination as a belief and ‘protected characteristic’ under the Equality Act 2010, bringing yet another complication to any future tribunal claims pursued with no upper limit on compensation. However, employers should not be deterred from introducing such mandatory policies if they are necessary, reasonable and proportionate but should seek advice early to avoid potentially expensive and prolonged claims further down the line.

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Helen is an expert in employment law, HR and commercial matters, including all manner of employment law issues (ranging from grievances and disciplinaries through to complex restructures and redundancy exercises), high value cross-border commercial contracts and business turnaround advice.

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New OfS Regulatory Advice on Reportable Events – what it means for providers

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In February 2021 the Office for Students concluded its consultation on reportable events. The Office for Students' consultation on reportable events - Shakespeare Martineau.

The OfS has now published its updated regulatory advice on reportable events, which is effective from 1 January 2022. We explore what this means for providers.

“Reportable events” are the events or matters registered providers are required to report to the OfS, and in the original consultation the OfS proposed a new definition for a reportable event, and new guidance to assist providers in deciding whether to make a report in recognition of the difficulties providers were having with the current approach.

Regulatory advice 16: Reportable events - Office for Students

There is now a new definition of a reportable event:

“A reportable event is any event or matter that, in the reasonable judgement of the OfS, negatively affects or could negatively affect:

  1. The provider’s eligibility for registration with the OfS.

  2. The provider's ability to comply with its conditions of registration.

  3. The provider's eligibility for degree awarding powers, or its ability to comply with the criteria for degree awarding powers, where the provider:

    • holds degree awarding powers; or
    • has submitted an application for degree awarding powers to the OfS, and for which the OfS has yet to reach a final decision.
  4. The provider's eligibility for university title, where the provider:

    • holds university title; or

    • has submitted an application for university title to the OfS, and for which the OfS has yet to reach a final decision.

In interpreting ‘the reasonable judgement of the OfS’, the OfS will, as a matter of policy, consider whether a reasonable provider intent on complying with all of its conditions of registration and acting in the interests of students and taxpayers (rather than in its own commercial, reputational or other interests), would consider the event or matter to be material.”

Whilst this is broadly similar to the proposed definition in the consultation, the OfS has gone further to make it clear that the third and fourth criteria also apply to providers who have submitted applications for degree awarding powers/university title.

What matters should be reported, and when?

The guidance contains a table (Table 1) containing a non-exhaustive, illustrative list of reportable events, which includes some events that are and have always been reportable.  These include a merger, change of ownership, loss of student sponsor licence, breach of a financial covenant attached to a loan, change in the identity of the accountable officer or chair of the governing body and the closure of a campus, department or subject area.

A provider is required to report an event within five working days of the date that the event is identified or, if that is not possible due to exceptional circumstances beyond the control of the provider, as soon as reasonably practicable thereafter and without undue delay. The guidance provides further details with regard to timings for events that have yet to happen but are in contemplation, eg. a merger or closure of a subject area, and events that have already happened but which the provider might only become aware of later, eg a possible fraud.  The OfS will consider whether a provider met the timescales for reporting an event as part of the assessment of the event.

A report must be made online via the OfS portal.

One thing to note is that the OfS has made clear that the new reporting requirements are not intended to have a retrospective effect, and so events that occurred during the period when reduced reporting requirements were in place, which were not reportable at the time, will not need to be reported under the revised requirements.

OfS assessment of a reportable event

The OfS will review the information submitted (and may ask for further information) and following consideration will determine one of the following next steps:

  1. The information contained in the report should be recorded but no further action is required from the provider at this time.

  2. A more extensive assessment is required because the information contained in the report is likely to affect the provider’s eligibility for registration, its compliance with its conditions of registration, or its eligibility for degree awarding powers and university title, or its ability to comply with the criteria for degree awarding powers (where relevant).

  3. A more extensive assessment is required because the information contained in the report adds new information to a known issue or to a pattern of events or issues.

If an extensive assessment is carried out and the OfS decides there is an effect on the provider’s eligibility for registration, a change in the OfS’s risk assessment for one or more conditions of registration (with risk increasing or decreasing, or crystallising into a breach of a condition), or an effect on the provider’s eligibility for degree awarding powers or university title or its ability to comply with the criteria for degree awarding powers (where relevant), further assessment or action will be taken in response.

What does this mean for providers?

Providers will need to ensure that they have the optimal internal processes in place to identify reportable events in a timely way. Therefore, steps should already have been taken and if not, should be put in place rapidly, to make sure that potentially reportable events are considered at an appropriate level, systems are in place for recording decision-making and that the processes for reviewing potentially reportable events are reviewed periodically to check that they are operating effectively.

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As a core member of the Education team, Anieka works solely with clients in the education sector advising on a whole spectrum of matters.

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Flexible working in schools – making it work

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On 22 November 2021, the DfE published tailored non-statutory guidance regarding flexible working arrangements for schools and academies (available here).

What is the definition of flexible working?

The guidance aims to help schools develop and implement appropriate flexible working policies as well as to support school employees who want to request flexible working.

The guidance defines flexible working as “arrangements which allow employees to vary the amount, timing, or location of their work”. Flexible working, therefore, includes part time working; job shares; phased retirement; staggered, compressed, annualised or other variable hours arrangements; time off in lieu; home or remote working; and/or the use of personal/family days.

The DfE has updated the school’s guidance to take into account the different types of flexible working requests that employees are now making, drawing on the latest evidence on flexible working, including the recent research “Exploring Flexible Working Practices in Schools”, as well as good practice examples from within the sector.

The schools sector has typically supported traditional flexible working requests for such arrangements as job shares, part time working and variable hours, often to support teaching staff who have dependents or are nearing retirement. Requests for flexible working in schools were traditionally made under the statutory procedure set out in the Employment Rights Act 1996 and were available to any employee that had been employed for at least 26 weeks, provided they had not made an application under the regime in the past 12 months.

However, following the coronavirus pandemic and the government’s instruction to work from home if you can, working practices in the UK have changed significantly leading to employees readdressing how and where they want to undertake their work. As a result, we’re now seeing an increase in requests for home working or variable/compressed hours from employees within the sector. Requests are now being made both under the statutory regime and in the form of informal discussions, for either permanent or temporary working arrangements. Both routes are considered within the guidance.

The key take home points of the guidance are:

  • Schools should consider embedding strategic, whole school approaches to flexible working within a flexible working policy, with contribution from all parties, including trade unions where appropriate.

  • Flexible working arrangements feed into an employer’s duty to protect the health, safety and wellbeing of its staff and should be considered as a means of minimising stress related illness.

  • Some flexible working arrangements may be more suitable for particular roles than others, but any member of school staff can make a flexible working request.

  • Flexible working requests can be made using the statutory procedure or the non-statutory procedure. Irrespective of the procedure used, the guidance encourages dialogue between the parties to consider the impact of the request and the available options.

  • Trial periods are encouraged to test out plausibility of flexible working arrangements for both the school, and the employee.

  • Schools have a duty to consider requests for flexible working fairly, in a timely manner and according to due process based on business need. The school makes the ultimate decision on whether or not to accept flexible working requests.

  • Flexible working arrangements should not be used to address excessive workloads.

  • Policies and decisions regarding flexible working should comply with the school’s obligations under the Equality Act 2010.

What do schools need to do?

The guidance acknowledges that there are already challenges to overcome with implementing flexible working arrangements in a school setting. However, the guidance seeks to encourage schools and its employees to work together to establish arrangements that work for both parties, while ensuring consistent high-quality provision for pupils.

The guidance does not pose an obligation on schools to grant all flexible working requests made, but they must be considered.

If the request has been made under the statutory procedure, schools must be mindful of their obligations under the legislation with regards to how and when they must respond. Failure to comply with the rules may result in liability for the school of up to eight weeks’ pay, and/or an order for reconsideration of the request being ordered by the Tribunal. Employees may also consider bringing claims for unlawful detriment and/or automatic unfair dismissal, each of which carry additional financial liabilities if successful.

If a school has received a flexible working request and requires guidance on how to respond, in light of the guidance, particularly where the request has been made under the statutory procedure, we have a team of experts ready to assist.

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Emma is a Solicitor within the firm’s Education team specialising in employment advice for education clients including independent schools and academies, as well as both further and higher education institutes.

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The Employment Appeal Tribunal upholds opposing tribunal decisions on justification of compulsory retirement age

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In a case of real interest to the education sector and those involved in equality and diversity issues, the Employment Appeal Tribunal (EAT) has recently upheld opposing decisions of two separate employment tribunals regarding age discrimination.  One employment tribunal had found the University of Oxford’s compulsory retirement age was objectively justified, while another tribunal came to the opposite conclusion.  The two cases were brought by professors who were denied extensions due to the retirement policy of the University of Oxford (“the University”).  The presentation and evidence in respect of the claims differed in material respects.  In both cases the decision was appealed to the EAT.

The proportionality assessment a tribunal is required to undertake when considering whether direct age discrimination is objectively justified, results in the chance of different tribunals reaching opposing decisions when faced with different factual matrices despite the consideration of the same policy, employer, and legitimate aims.

The background to the case

Employer Justified Retirement Age (EJRA)

Following the repeal of the default retirement age in 2011, if an employer is operating a compulsory retirement age, they will be at risk of unlawful discrimination on the grounds of age against its employees, in the absence of a proportionate means of achieving a legitimate aim.

From October 2011, the university operated an Employer Justified Retirement Age (“EJRA”).  At the relevant time, this was age 67.  Exceptions to the EJRA are permitted through the means of an extension procedure and are granted in exceptional circumstances.  St John’s College, a college of the university, also applied the EJRA.

Professor Pitcher

Professor Pitcher was an Associate Professor of English at the University and an official Fellow and tutor in English at St John’s College (“the college”).  He was compulsory retired from the position he held aged 67 as a result of the EJRA.  He applied for an extension but was denied.  The claims he brought were of direct age discrimination and unfair dismissal.  His claims were dismissed by the employment tribunal, finding the EJRA to be justified and the dismissal fair.

Professor Pitcher appealed the decision to the EAT.

Professor Ewart

Professor Ewart was an Associate Professor of Atomic and Laser Physics at the University. He was also subject to the EJRA.  Initially, he obtained an extension of his employment with the university.  As a result, Professor Ewart took up a fixed-term position and left his substantive post.  He applied for a further extension but this application was denied and therefore he faced compulsory retirement.  The claims he brought were also claims of direct age discrimination and unfair dismissal.  The employment tribunal upheld Professor Ewart’s claims.

The university appealed the decision to the EAT.

Decision

Both appeals were dismissed by the EAT.

What are the key points and material differences in these cases?

The EAT held the university and college had legitimate aims of:

  • Inter-generational fairness;
  • Succession planning; and
  • Equality and diversity.

The EJRA was able to facilitate other measures with regard to the achievement of the legitimate aims through guaranteeing vacancy creation was not postponed.  This would help to enable the recruitment of younger, more diverse individuals into senior academic roles.

Professor Pitcher’s case

There was limited evidence presented in this case showing the policy’s effect.  The Court of Appeal’s decision in another case was referred to, Air Products plc v Cockram.  In this case the court acknowledged the challenges in demonstrating that compulsory retirement age resulted in a high retention rate shortly after the rule was instigated.  The EAT found the tribunal hearing Pitcher’s case was entitled to give weight to other factors where there was a lack of statistical analysis.  Evidence from a survey of retirees suggested that in the absence of the EJRA, a quarter would have remained in employment for another three years.  It could not be found as implausible to imagine that without the EJRA, turnover would be considerably lower.

Professor Ewart’s case

In this case, the tribunal had the opportunity to consider a statistical analysis that demonstrated that the rate of vacancies created by the EJRA was insignificant, at 2-4%. There was not therefore adequate evidence to demonstrate the EJRA could facilitate the achievement of the legitimate aims.

Further, Professor Ewart’s application regarding the extension was in relation to pursuing working in a university role, whereas, Professor Pitcher’s application for the extension focused on his appointment with the college. This gave rise to different issues in relation to the potential detriment arising, meaning the focus of evidence before each tribunal differed.

What does this recent case highlight for employers?

Although the two opposing decisions were upheld, neither erred in law.  Employers should be aware in these types of cases, the proportionality assessment a tribunal is required to undertake when considering whether direct age discrimination is objectively justified could result in the possibility of different tribunals reaching opposing conclusions.  This is despite the consideration of the same policy, employer and legitimate aims, and that each case will turn on its own facts, and the evidence available to show whether, in a particular case, the use of the policy can be justified.

The decisions also highlight evidence that it is unwise to assume the effect of an employer’s policy is to significantly increase the rate vacancies are created.  This will certainly provide thought for employers who seek to justify EJRAs.