Category: Anna Denton-Jones

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Anna Denton-Jones COVID-19 Disability Duty of Care Employment Law Equality Act 2010 Health Conditions Maternity Pregnancy Reasonable Adjustments Remote Working Return to Work Working from Home

Déjà vu — Shielding

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If this feels familiar, we have been here before…

In Wales
The clinically extremely vulnerable have been advised to shield in Wales since the 22 December 2020. Shielding for the clinically extremely vulnerable will be paused on 31 March 2021. The fact that the word “pause” is being used indicates that this position may change again in the future so be prepared to be flexible.

Working from home should still be the position wherever that is possible. Where that is not possible, employers will have to take measures to make the workplace COVID secure which may involve changing the person’s duties etc.

In England
The clinically extremely vulnerable have been shielding since 5 January 2021. As of 1 April 2021, they will no longer be advised to do so and will not be eligible for statutory sick pay on the basis of being advised to shield.

The advice is still that they should continue to work from home wherever that is possible, so employers ought to be attempting to facilitate that. Where they cannot work from home, then they are advised to attend their workplace and employers will be under a duty to take measures which will reduce the risk of exposure to COVID-19 in the workplace. That may involve changing the person’s duties etc.

Both
Furlough is an option where the employer decides working from home isn’t possible. The employer would need to consider the discrimination risks associated with, for example, singling out a worker for furlough, when their category of colleague was not also being furloughed.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Compensation Constructive Dismissal Disability Diversity Duty of Care Employment Law Employment Rights Act 1996 Equality Act 2010 Health Conditions Protected Characteristics

We can learn from a recent disability discrimination case

Royal Courts of Justice, London

Last year, a university law lecturer at BPP University named Elizabeth Aylott was constructively unfairly dismissed and unfavourably treated because of something arising from her disability, despite the fact that other disability related claims were dismissed. She suffered from autistic spectrum disorder, anxiety and depression, which were her disabilities.

A member of the management team talked about her with a colleague and referred to her as a good worker but “mad as a box of frogs”. This comment then got back to her.

She found herself working very long hours including weekends and evenings.

A complaint resulted in a breakdown in the relationship with her employer, in particular, the employer did not allow her to see the complaint or defend herself.

Those three acts were found to be unfavourable treatment, as was the failure to refer her to occupational health.

Other concerns involved a crass and insensitive remark made about how she should have been able to handle her workload – this was inappropriate in the context of what was clearly a poor mental state.

Her employer was found to have failed to reduce her workload or provide extra support or heed any of the indications that she was not coping. Given the numbers of people who are experiencing challenges through the pandemic, you can see how easily an employer can fall into this trap and be found to be guilty of failing to do the right things.

Whenever anybody is complaining of their workload, the hours that they are working or exhibiting other signs that they are suffering from stress and not coping, which could be falling productivity, unusual disengagement or irritability and being more sensitive than normal in relation to normal day to day work related matters, an employer should be considering what they can do to support the employee.

One of the interesting things in this case, is that the employee found a job fairly quickly, so within a 3 month period of her having resigned. However, the Employment Tribunal still awarded her £71,000 worth of compensation for future losses (presumably her new job did not pay as much), £32,000 for past financial losses – so bridging the gap between the jobs, and £20,000 for injury to feelings. The Judge noted that the discriminatory conduct had been integral as to why she chose to resign and that although she had commenced working elsewhere, she remained unwell throughout the period up to the Hearing, when she was able to talk about how the treatment she had received had affected her. This shouldn’t be underestimated.

Managers need to be aware that during a Section 15 of the Equality Act claim that somebody has suffered from discrimination arising from a disability, they need to do the following:

  • Show that their disability causes “something”. That something might be fatigue or more stressed when under pressure or to lose their concentration or not perform as well under pressure.
  • If as a result of that “something” they then receive unfavourable treatment, so that might be performance management, sickness absence management or they aren’t promoted, put forward for training or allocated work, those actions can then be connected back to the disability. The employer has to then show that they are pursuing a legitimate aim and have done so in a proportionate manner when carrying out those actions.
  • For example, it may be that managing absence or attendance at work is a legitimate aim but if the employer has not obtained occupational health advice and has not made real efforts as regards reasonable adjustments, the employer is unlikely to be able to show that their actions were a proportionate means of achieving a legitimate aim.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones COVID-19 Video

Video | Remembrance of those who have died of COVID-19

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Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing that employers should be aware of a planned day of remembrance on 23 March 2021, for those that have been lost to COVID-19 over this last year.

Anna Denton-Jones
Refreshing Law

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Age Discrimination Anna Denton-Jones Disability Diversity Employment Law Employment Rights Act 1996 Equality Act 2010 Harassment HR Training

The requirement for diversity training

Royal Courts of Justice, London

As if everyone in HR and business is not under enough pressure at the moment, the Employment Appeal Tribunal (EAT), in a case Allay (UK) Ltd v Gehlen has confirmed that it regards training provided 2 years ago on equality and diversity “stale” and ineffective. This was in the context of a racial harassment case. You will be familiar with the idea that in order for an employer to escape liability, if there, is to say that they as employer took all reasonable steps to prevent employees from committing the particular discriminatory act.

It has long been the case that employers present the Tribunal with the fact that the employee protagonist in any harassment case has undergone training and that they have policies of not tolerating such acts of harassment.

If you had asked me to guess how long it took training to become stale and ineffective, I might have said 4-5 years. It is really interesting that the EAT wasn’t going to allow the employer to rely on having given somebody training 2 years ago and suggests that employers are going to need to make some sort of refresher training an annual event. This will of course go for all forms of harassment, so every protected characteristic, not just that of race.

In this particular case, the EAT found that the need for a refresher on a regular basis was amplified by remarks made in the case and the failure of other colleagues to react to the harassment they had witnessed or that had been complained about, and showed the training wasn’t in anyone’s minds. The fact that the protagonist felt that what they had said was just banter was further evidence that the training given had faded from memory and the managers didn’t know what to do when they observed harassment or it was reported to them, suggested that training had also faded from their memories. The particular employer had actually provided further training to the protagonist after the incident so that proved that they also thought further training was necessary, thus the employer couldn’t escape liability.

Having seen a real shift as a result of the MeToo movement, attitudes towards sexual harassment in the workplace and a further big shift as a result of the Black Lives Matter movement means that there is a huge spotlight at the moment over conduct in the workplace and a real sea change in what is expected to be tolerated. It could be that as the generations move into the workforce who are more likely to refuse to accept old norms or tolerate what they see as inappropriate, we see a sea change but for now the employer needs to be driving the change and reinforcing the message whenever it can.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Awards Employment Law

Legal 500

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Modern expertise, personal touch — Why Refreshing Law is redefining employment advice

In the fast-paced world of HR and workplace regulation, staying still is the same as moving backward. That’s why we’re thrilled to share our latest recognition from Legal 500, which highlights exactly what makes Refreshing Law stand out in a crowded legal landscape.

The review describes us as a “forward-thinking and modern firm” — a badge of honour for us as we continue to leverage up-to-date technology to provide seamless, efficient support to our clients.

Commercial advice with a competitive edge

Run by sole practitioner Anna Denton-Jones, Refreshing Law isn’t your typical stuffy law firm. We provide commercial employment advice across the entire spectrum of HR and employment law. Whether you’re navigating a complex disciplinary issue or restructuring a department, our advice isn’t just legally sound — it’s commercially grounded.

The Legal 500 specifically noted Anna’s ​“extreme passion” for her work. In practice, this means:

  • For Senior Executives: Specialised expertise in negotiating sensitive Settlement Agreements
  • For Employers: Strategic guidance on high-stakes HR matters that impact the bottom line

Beyond the desk: Training for the modern workplace

Legal advice shouldn’t just happen when things go wrong; it should empower you to get things right from the start. We are particularly proud that the Legal 500 highlighted our ​“excellent delivery of seminars and training courses.”

We don’t just recite the law; we dive into the ​“hot-button issues” currently facing employers, ensuring your management teams are prepared for the challenges of 2026 and beyond.

​“A forward-thinking and modern firm which uses up-to-date technology to support its clients.” — Legal 500

Why choose a sole practitioner?

Working with a dedicated expert like Anna Denton-Jones means you don’t get passed off to a junior associate. You get:

  1. Direct Access: your point of contact is always the lead expert
  2. Consistency: a deep understanding of your business history and culture
  3. Agility: a modern, tech-enabled approach that responds at the speed of your business

Is your business prepared for the latest shifts in employment law?

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Disability Employment Law Employment Rights Act 1996 Equality Act 2010 Menopause Mental Health Protected Characteristics

Guest Blog | The Menopause — Why should organisations bother?

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Katie Day is a Director at RDP International Ltd

Policies and guidelines around mental health are in place.

Established and clear policies have been in existence for pregnant women and parental leave for many years.

Ways of recording reasons for absence and supporting staff (via Employee Assistance Programmes for example) are well used.

The menopause.

Ah.

Not so good there then!

I find this puzzling. Not every woman will experience pregnancy, yet every woman, if she lives long enough, will experience the menopause. As we make up around 52% of the population, and around 57% of that number are of key menopausal age (between 40 and 65). That’s a lot of women who will go through this life transition!

It is estimated that absence due to menopause (where woman are not supported at work) represents a cost to the UK economy of around £7.3 million per year1.  According to the Government Report on Menopause, women at menopausal life phase are the fastest growing workforce demographic, and according to the Faculty of Occupational Medicine nearly 8 out of 10 peri- and post-menopausal women are in work.

Women are lying. Around 75% of women say they do not feel confident to cite the menopause as the reason for their absence at work, so are reporting ‘other reasons’ for their absence. They feel really bad about doing this, which further exacerbates their feelings of vulnerability. Ensuring there is a supportive workplace culture is the responsibility of the organisation, not the responsibility of the women who work there.

One in four women consider leaving their job during this life phase.

Combine the above statistics with the legal requirements of employers to support and protect staff, this is a topic that cannot be ignored within the business community.

When asked, women in the UK report the following menopausal experiences as just some that have a negative impact for them at work, there are others2:

  • Irritability: 56%
  • Poor concentration: 51%
  • Tiredness: 51%
  • Poor memory: 50%

Women want to talk with other women going through this life phase, to have more information. They want management awareness of the topic, combined with information and advice from their employer. They want access to support via training sessions and networks.

Not all the responsibility lies with the employer of course. It is shared with the woman herself. We can all take ownership of our health and find out how we can best support ourselves, navigate this transition with the maximum ease and minimum stress and emerge stronger and even more resilient.

First and foremost we need to ‘normalise’ the conversation. What do I mean by this? Well, we all need to feel comfortable talking about ‘the M word’. If, as women, we are uncomfortable verbalising our experience(s), then it is pretty much guaranteed that people around us will also feel uncomfortable. The menopause is a natural part of life, and once we accept and embrace this life transition and see it for what it is – a temporary rite of passage, we are able to recognise that we can, to some degree, sail through rather than stumble through.

Honest and open conversations are the key. We all need to acknowledge the important and valuable contribution women of menopausal age make to the business world. By ‘all’ I mean women themselves and their employers. To lose all that experience and expertise is simply bad business and poor workplace practice.

With two employee tribunals (2012 and 2018),3 both of which went in favour of the claimant (menopausal woman), organisations ignore this issue at their peril. It is increasingly crucial that employers ensure they become, and remain, employers of choice – for everyone. ‘Everyone’ must not exclude women of menopausal age.

We work with some truly wonderful organisations who have the courage to tackle this issue head on, brave enough to make the changes necessary and savvy enough to ensure they retain some of their best talent. Do you work for, or run, one of these organisations? Or is there room for improvement?

Many of our clients are considering making our Supporting people during the menopause session mandatory for every manager they employ.

More and more men within our client organisations are putting themselves forward to be a champion and a ‘point of contact’ for women. They encourage other men to learn, change and support. They are the benchmarks all people need to follow.

Let us all embrace the strength and value of this time in a woman’s life, promote the wisdom, experience and expertise of women and collaborate to create an even more resilient and successful workplace.

Katie Day

Director

RDP International Ltd

katie@rdp-int.com

RDP International works with organisations on: leadership / communication / all matters ‘midlife’

www.rdp-int.com

Join the conversation:

LinkedIn:        Midlife Matters Group

Twitter:           @Midlife_Matters

Facebook:        Midlife Matters

  1. Kleinman NL, et al. (2013)

Direct and indirect costs of women diagnosed with menopause symptoms

Journal of Occupational and Environmental Medicine 2013 Apr;55(4): 465-70

  1. Griffiths A, et al. (2013)

Menopause and work: An electronic survey of employees’ attitudes in the UK

Maturitas 76 (2013): 155– 159

  1. Merchant v BT plc (ET/1401305/11, 27 February 2012)

Reported in below:

Okill A (2017)

Time to tackle the myths and taboos of the menopause in the workplace

HR News (October 2017): http://hrnews.co.uk/time-tackle-myths-taboos-menopause-workplace/ 

Katie Day highlights the need for workplace support for menopausal women, emphasising the importance of normalising discussions and providing resources.

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Acas Anna Denton-Jones Disclosure Employment Law Employment Rights Act 1996 Employment Tribunal Grievance Investigations

Does an employer have to disclose the investigation report?

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At first glance, one might think the answer to this question was rather obvious, in that the employee raising the grievance is going to want to see that the investigation has been done thoroughly and fairly in order to be able to accept that the employer is following the correct processes based on the evidence.  Indeed, if you didn’t disclose these papers to the employee, it is likely to foster distress and further antagonise what may already be the steps on the way to a breakdown in trust and confidence between the parties.

Having said that, are there circumstances in which you can decline to show the employee parts of the evidence?  It is worth noting that the ACAS Code of Practice in relation to grievance procedures does not grant a specific “right” to the employee to see witness statements or any evidence that is part of an investigation.  

The employer is likely to be having to balance the rights of the employee against the rights of others who have also been named in the report, and to whom it may also owe duties such as  confidentiality, if that were the only basis on which it could obtain evidence.

The ACAS Guide to Conducting Workplace Investigations states “if an individual wishes to see a report they have been named in, they have got a right to see any parts of the report that contains information about them or that is reliant on information they have provided”.  That makes sense because they may want to correct a mistake that you have made in quoting them or if they disagree with an interpretation that has been made by the investigator. The ACAS Guidance goes onto say “however, they should not be allowed to see private information belonging to other individuals”. Thus, you would not necessarily be disclosing to them the entire report.  It may be that in sensitive cases, where perhaps co-operation in an investigation has only been able to be obtained by witnesses being promised anonymity, certain parts of the report/statements would have to be redacted.  In such circumstances, it may be that you change the names and other identifying information to, for example, numbers or letters, say witness B etc.

Ultimately, it is down to the employer to decide what the best thing to do is in each case and we would recommend that the rationale for acting in a particular way is recorded at the relevant time, so that if it is challenged later, at appeal or through the Tribunal, there is a record of the decision-making process.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Data Protection Act 2018 Data Subject Access Requests Disclosure Employment Law Investigations Privacy

Subject Access Request during an on-going process

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It is not uncommon for somebody who is part-way through a process, such as a performance management process, sickness absence management process, redundancy situation or disciplinary process, to put in a subject access request under the Data Protection Act.

If the employee is off sick or because they’re at a very early stage in the process, they may not even be aware that, for example, a disciplinary investigation has commenced. Or they might not yet be aware of a complaint that’s been received, that you’re looking into that relates to them. Alternatively, you might be towards the end of the process at the appeal stage and you might have a subject access request in an attempt to look for what I call “the smoking gun” they think you have hidden from them in terms of the process so far.

I’ve even heard today of Unions using the SAR as a form of industrial unrest – launching mass employee requests on organisations as part of industrial action.

The first thing to note is that the request under the Data Protection legislation is made in an entirely different relationship with you than the relationship of employee and employer. It is made as a data subject in relation to your position as data controller governed by the rules in the data protection legislation. So, for example, given that you have 30-days under the data protection legislation to access their request and provide them with the data they have asked for, it is entirely possible that your ongoing employment processes will be moving more speedily and for example, a disciplinary hearing or a meeting might be in the diary well before that 30-day period.  There’s nothing in the data protection legislation that requires you to halt your internal employment process or wait until the SAR has been dealt with.

If you have already disclosed the information to somebody for example, as part of an investigation report or in an email notifying them of a complaint against them or as part of a pack given to them for the purposes of an appeal meeting, you have already given them that information so you’re not going to be required to give it to them again as part of the subject access request disclosure – you would just have to cross refer to what you’ve already given them.

The next thing to say about data protection is there is absolutely no substitute in any given situation for tracking through the legislation itself when it comes to determining what you’re required to disclose to the data subject and what you’re allowed to withhold. Making this assessment on the basis of some kind of ‘feel’ is not enough.

There are things you do not have to disclose. This includes:

  • anything relating to negotiations if disclosure would prejudice the negotiations
  • confidential references given by you
  • criminal investigations
  • data processed for the purposes of management planning if disclosure would prejudice the planning (such as telling the subject about a redundancy exercise before the consultation had launched)
  • anything that is protected by confidentiality to a third party or legal professional privilege.

Thus, the list of exemptions is really narrow.  It means most things are disclosable, perhaps with some redaction of bits relating to other people. We all need to bear in mind when we prepare documents that the data subject may see them in future e.g.: – email accordingly.

In your letter to the data subject, which you will send with their response to the subject access request, you need to include a detailed explanation as to how you have gone about your response to the request and why you have excluded anything.

It is important that you consider the rights of other data subjects when processing requests.  If disclosure of the information would identify another individual, you’re not obliged to comply with the request unless the other individual has consented to the disclosure of the information and it is reasonable in all circumstances to comply with the request without the consent of the other person. It is relevant to complaints and investigations – have you informed the complainant that the matter will have to be taken up with the individual? Have you informed those witnesses that have given evidence as part of the process that their evidence is going to be showed to the person that is for example, accused of misconduct?

Where you haven’t got consent, you will have to think about redaction and omitting names and taking out as much as you can that would identify somebody. The legislation itself requires you to take steps with a view to seek consent from the other individual who asks us to look at whether there is any express refusal of that consent.

Of course it is entirely possible that the individual might try and make a second access request if the first request has not revealed what they thought they were expecting and s95(3) requires us to consider whether it is a reasonable interval between the requests having regard to the nature of the data, the purpose for which it is being processed and the frequency with which the data is altered. If you’ve complied with the subject access request and given the employee the data they requested, it is highly likely that you’re going to be able to refuse a second request on the basis that nothing has changed.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Articles Employment Law Pay

Getting money back from an employee when mistakenly overpaid

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Let’s assume that you’ve overpaid somebody either as the result of an administrative error or because they have fraudulently claimed an entitlement to something that is not the case. Ideally you should have a contractual provision expressly allowing deduction from wages in the event of an overpayment. This is so you can rely on it to recover the overpayment where they are still employed by you. If you didn’t have this contractual provision, making the deduction would be a breach of contract.

In the absence of a contractual provision, the employer could rely on a common law remedy called ‘restitution’ based on a mistake of fact to recover the overpayment through the civil courts – this law prevents the unjust enrichment of the worker at your expense. You should act as quickly as possible once an overpayment is discovered because a worker can rely on a ‘change of position’ defence so, for example, if they’ve spent the money they would argue they are no longer able to repay it. An example case where this occurred was County Council of Avon v Howlett 1983 where a teacher was paid more sick pay than he was entitled to. At the time he queried the overpayments but he was told they were correct and by the time the Council had realised its mistake he had spent the money. The Court of Appeal prevented the Council from recovering any of the overpayment clearly taking into account the fact that the Council had confirmed that the payment was correct so the employee, in good faith and without any knowledge of the claim, changed his position (spent the money) so it was not his fault.

The easiest option is usually to recover an overpayment by making deductions from future payments of wages or salary over a period of time. In circumstances where the deduction is to recover an overpayment of wages or an overpayment of expenses, the unlawful deduction from wages regime in Sections 13-27 of the Employment Rights Act is dis-applied (Section 14(1)). Normally it is unlawful for an employer to make a deduction from a worker’s wages unless the deduction is authorised specifically by law or the employee’s contract or the worker has given their prior written consent to the deduction. An example of this applying is the case of SIP (Industrial Products) v Swinn 1994 where the employee had fraudulently obtained around £2,000 from his employer by altering fuel receipts which he then submitted as expenses claims when he was dismissed. The employer withheld the remainder of his wages and holiday pay. Normally this would clearly have been an unlawful deduction from wages, however the Employment Appeal Tribunal found that this fell within the overpayments exception.

It is worth knowing that you cannot make deductions from somebody’s statutory redundancy payment as that is a payment which is specifically excluded from the definition of ‘wages’ in Section 27(2)(d) of the Employment Rights Act 1996. Elsewhere in the redundancy sections the legislation provides that the employer shall pay a redundancy payment to any employee if they are entitled to it. The only way an employee could agree to a reduced statutory redundancy payment would be in a Settlement Agreement. However, if the employee was receiving an enhanced redundancy payment it may be possible for an employer to make a reduction from the enhanced element to recover an overpayment, but this again will depend on the terms of the employee’s contract.

Likewise, you are not able to make a deduction from statutory sick pay. If you have overpaid somebody and you later make a payment in lieu of notice (that is non-contractual) you can make the deduction for an overpayment. If the employee brought a claim in breach of contract for the difference you would be able to defend it on the basis that you were entitled to recover the overpayment from wages and, in the alternative, counter claim for a set-off of the overpayment.

Where you make any deductions it should be clearly stated on an itemised pay statement.

If you’ve any queries relating to this article, do please contact us.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Articles Disability Discrimination Law Employment Law Employment Rights Act 1996 Health and Safety Health Conditions Pay Return to Work Sick Pay

Can you withhold sick pay for staff with sporting injuries?

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You may have come across clauses in a sickness policy or in contracts of employment where the employer reserves the right to review the payment of contractual sick pay (and not pay) if the employee had been injured participating in a sport or leisure activity.

The London Marathon this week got me thinking about this.

I’ve previously always used the example (when explaining the clause to clients) of a keen rugby player. If they get injured on a fairly regular basis why should the employer keep coughing up when this is hardly accidental and is going to keep costing them? There are even City firms who won’t allow you to (for example) play rugby because they don’t want you coming into work on a Monday morning covered in bruises and looking like you’ve been fighting because it creates the wrong impression, but that’s another matter…

None of us go out aiming to get injured, but to what extent can an employer withhold sick pay from someone who (say) breaks a leg running in a marathon, riding a horse or riding a bike?

There is no obligation to pay sick pay over and above SSP in general. If employers choose to pay contractual sick pay they can choose how long they want to pay it for, how it is to be calculated, and any conditions attached to payment. Thus it is permitted for an employer to reserve the right not to make payment in certain circumstances as in the case of the clause we are discussing or when they say nothing will be paid until the employee has passed their probationary period.

As with so many things in employment law, firstly care has to be taken to ensure that any provision by the employer is clear so that entitlement at any given time can be calculated.

Secondly, where the matter is reserved for ‘management discretion’ care needs to be taken to treat similar cases in a similar way to prevent unfairness. When does a ‘leisure activity’ (riding a bike with a friend round the park to go for a coffee) become a sport? Maybe it’s when the activity becomes competitive? Or is it more about the level of risk involved, so high risk pursuits like skiing, white water rafting and taking your horse cross country (which are more likely to result in injury) could result in sick pay being withdrawn but not general sports?

The third consideration the employer will need to make is what signal withdrawal of sick pay will give staff. Will the invoking of the clause to withhold pay come across as harsh? Will it put people off wanting to work in the organisation because it comes across as too uncaring? Most employers are quite sensible about this for this very reason and only use it in the tiny percentage of cases where a staff member is regularly injured – like the semi-professional rugby player.

Anna Denton-Jones
Refreshing Law