Category: Anna Denton-Jones

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Anna Denton-Jones Employment Law Employment Rights Act 1996 Equality Act 2010 Reasonable Adjustments

Reframing your thinking around reasonable adjustments

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I regularly come across the attitude that it is for the employee to ask their employer for the reasonable adjustments that they need.

Firstly, this is not correct – the Equality Act 2010 places an obligation on the employer to make reasonable adjustments, irrespective of whether the employee concerned has asked or not, as soon as they are aware of the disability.

Apart from the legal position just described, it doesn’t make sense to be waiting for people to ask. People typically are not very good at asking for what they need and when being forced to ask for help, feel vulnerable or judged. What is more common is that it is just human nature to avoid asking for what you need and wait until things get really bad and relationships are probably strained. We are all familiar with accusations being hurled back to organisations in grievances. So by the time somebody gets to vent their spleen in a grievance, everything has built up to a fever pitch.

Instead of reasonable adjustments being seen as something as problematic and burdensome to an employer, we need to shift our mind-set so that we are thinking that we are just doing something ordinary. Most of us have the tools in our day to day lives to help us – I know on my desk right now, I have a lengthy to do list, you might have set your phone to remind you of something or you might have worked out on paper the things you want to make sure you get across in a meeting today. These are all examples of adjustments that are being made to help us do our jobs. If we make adjustments with a disability, we are just doing the same, it’s just that the tools a person might be using might differ from those that we need to use. We shouldn’t be thinking about it as dealing with some “deficiency”.

When we think about reasonable adjustments, it’s just giving people the tools they need to do their job effectively and we need to stop treating disabled people as “less than” or “different” and just embrace that all of our employees are individuals and require different tools to do their jobs. Some managers get this and will be having open conversations with all their team to look at how they can support their staff member and supply those tools.

In particular, if the person hasn’t done the job before, because they are a new starter, it may be very difficult for them to know from the job description actually what they need. Equally, a new arrival is not going to know what things may be available or a person may have only recently received a diagnosis and be working out themselves what they need. Disabled people in particular may not be confident or articulate at addressing their needs and lots of people who would be classed as disabled within the meaning of the Equality Act will not be aware of this ‘status’ and therefore not aware of the possibility of reasonable adjustments.

Access to Work is a brilliant service run by the Government that includes coming into the workplace to assess what might be needed. It costs nothing. What’s not to like?

Adjustments are often quick, easy and cheap ways to help someone do their job. We’d buy a salesperson a new car to do their job so why not buy another employee different support they need to do theirs?

Your homework: be positive about making adjustments.

Refreshing Law Ltd
12 September 2022

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Anna Denton-Jones Employment Contract Employment Law Fraud HR Offer of Employment Recruitment

The implications of falsehoods in CVs

Royal Courts of Justice, London

A Court decision caught my eye when I was reading the legal news. Firstly, the case is interesting because it went all the way to the highest court in the land, the Supreme Court. Secondly, the Supreme Court overturned the decision of the Court of Appeal. Thirdly, the former employee had been ordered to pay back £97,000 having falsely claimed, in a job application, that he held qualifications and relevant work experience that he did not in fact have.

The case involved somebody called Jon Andrewes who had worked as the Chief Executive of St Margaret’s Hospice in Taunton. He claimed he had a university degree, relevant work experience and even a PhD from Plymouth University, insisting on being called Dr.

There was nothing wrong with his performance in the job, indeed the fact that he worked from 2004 to 2015 and was regularly appraised as either a strong performer or outstanding performer shows that he had not aroused suspicion at an early stage. He had also used similar lies to be appointed to roles as a Director and then Chair of the Torbay NHS Care Trust and as Chair of the Royal Cornwall NHS Hospital Trust.

At some point he was obviously caught out and the whole deck of cards came crashing down.

In 2017 he pleaded guilty to obtaining pecuniary advance by deception and two counts of fraud and was sentenced to 2 years imprisonment. The Proceeds of Crime Act of 2002 sets out a confiscation regime whereby criminals are relieved of their ill-gotten gains. In this case, the Crown were seeking an order that his entire earnings during the period of employment under false pretences should be confiscated. This would have been £643,000 (net earnings).

The Court of Appeal had held that it would be disproportionate to expect him to pay something back.

The Supreme Court sought a middle way and ordered he pay £97,000. There was clearly a feeling that to deprive a person of their entire earnings when the employee had apparently done a good job, would be a step too far but they also declined to agree with the employee’s submission that a ‘take nothing’ approach was appropriate. Despite the fact that he had done a good job, the Hospice and two Trusts had sought a person of honesty and integrity and would have chosen another candidate if they had known about the deception.

In carving this middle route, the Supreme Court was clearly trying to represent the difference between the earnings made as a result of the CV fraud and a lower amount of earnings that the defendant would have made had they not committed the fraud.

The same principles will apply whatever the seniority of the employee.

One of the key issues arising in the case is what background checks were done to verify qualifications and information given on the CV. Just because somebody is in a very senior position, all the status doesn’t mean we should not subject them to checks that we might make for more lowly employees. I am not sure how the deception was identified in the end but it does seem that at least 3 HR Departments have some egg on their faces?

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Employment Law Employment Rights Act 1996 Holiday HR Part-Time Working Pay

Holiday calculations for part year workers

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Given we are in peak holiday season, are you happy you are paying people correctly when they take annual leave? The Supreme Court, i.e. the highest Court in our land has just ruled on the case of a teacher whose employment contract meant that she only worked for a proportion of each year, so 32 weeks in total over 3 terms ie;- part of the year. Others might work part of the year such as a ‘season’ on a farm or on a holiday site.

The employer had calculated the entitlement using the shorthand of 12.07% of annualised hours. This number had become standardised shorthand – 12.07% being the figure obtained using the standard working weeks in a year which is 46.4 (52 weeks less the statutory 5.6 weeks holiday entitlement) and 5.6 weeks being 12.07% of 46.4 weeks).

The employee argued they should have looked at her wages during the 12 week period prior to her taking holiday to calculate her average pay over that period. This was the approach ACAS recommended for workers employed on a casual basis or with irregular hours (they have since removed this from their site).

If you used the calculation favoured by the employee, she would be paid more when she took annual leave, in fact 17.5% of her annual earnings.

Since the date of the case, under the Employment Rights Act, if a worker doesn’t have normal working hours, a week’s pay is taken to be their average pay over a 52 week period and if there are weeks in which there is no remuneration being payable such weeks are excluded from the calculation with earlier weeks brought into the reference period instead. This is since April 2020 but in this particular case, the individual was referring to a period before then when the reference period was 12 weeks, excluding the weeks on which she didn’t work).

I suspect often employers who are looking at average pay just work out average pay over the 52 week period and forget to discount weeks in which there are no earnings?

I won’t bore you with the arguments that went back and forth between the various levels of Tribunal and then the Court of Appeal before the Supreme Court but essentially, the Supreme Court has agreed with the Court of Appeal decision. The percentage method of calculation (12.07 or 17.5%) has been rejected comprehensively and should no longer be relied on. They confirmed the average wage calculation instead This should be followed even if it results in part year workers receiving a higher proportion of their annual earnings as holiday pay.

It also means that there is now a dichotomy between accrual of annual leave which accrues in proportion of the work done and pay in respect of such leave which has to be calculated by reference to remuneration during periods of actual work. When it comes to accrual, in the first and last years of employment, accrual is based purely on the passage of time under the Contract – it doesn’t have any relationship to the amount of work done in that time. Non-working weeks could be included in calculating accrued holiday entitlement but are ignored when calculating holiday pay.

In practical terms, this is likely to be problematic, mainly for schools, where somebody does not have regular working hours rather than if somebody’s salary was annualised and paid in 12 monthly instalments, they are already receiving the correct amount of pay during weeks of holiday as during working time.

For those employers who have casual workers, they need to make sure that they are using the calendar week method. If a worker takes a week’s holiday, they should be paid a week’s pay according to the statutory formula which may produce a different rate of pay each time a holiday is taken depending on what their earnings have been in the 52 weeks that they have last worked prior to the calculation being done (or the period of employment if shorter).

That still leaves us with the difficulty in expressing holiday entitlement in contracts. If a worker does a different number of hours or days each week and sometimes may work no hours at all, what does the employer say in terms of quantifying their annual leave entitlement? Here the Working Time Regulations don’t provide any clues. One possible solution as per the government guidance which sits alongside the regulations is to base it on the number of days in an average week of a representative period, e.g. if the average week is 2.5 days long then a day’s holiday equals 1 divided by 2.5 or 0.4 of a week. If the employee took 2.5 days off it would reduce their holiday entitlement from 5.6 weeks to 5.2 weeks.

It is possible that we may now see a flurry of deductions claims from workers who have had their holiday calculated on the percentage. Those claims generally have to be brought within 3 months of the final pay day or the most recent pay day that they say has been calculated erroneously and can go back for 2 years back pay from the date of the claim.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Bullying and Harassment Discrimination Law Diversity Employment Law Employment Rights Act 1996 Equality Act 2010 Freedom of Speech Gender Inclusivity Video

Video | Employment Tribunal on gender-critical beliefs

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Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing in detail the recent Employment Tribunal case involving Maya Forstater which centred around gender-critical beliefs and whether she was unfairly discriminated against.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Disability Employment Law Employment Rights Act 1996 Equality Act 2010 Health Conditions Mental Health Return to Work Sick Pay

Revised — Fit notes

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You may be aware that the categories of people who are able to sign a Fit Note for the purposes of Statutory Sick Pay and other Social Security claims has been broadened with effect from 1 July 2022, so that pharmacists, physiotherapists, registered nurses and occupational therapists are now all able to sign Statements of Fitness for Work.

The old rules that such paperwork needed to be ‘wet’ signed by the GP have also been removed so it is now possible for the electronic generation of this paperwork in order to improve the way in which medical professionals are able to issue such documents. The Fit Note is still required to be signed and include the name of the healthcare professional who authorised it to be legally valid so a version that is blank isn’t genuine.

The Department for Work and Pensions has issued guidance for healthcare professionals which is called “Getting the most out of your Fit Note”.

It is interesting reading, in particular the instructions to medics to focus on fitness for work in general rather than fitness to attend a particular occupation, which suggests that it ought to be harder for somebody to achieve a state where they are unable to work at all, compared to being unable to perform aspects of their job.

The case studies are interesting as well. Particularly the fifth one called “relationship issues at work”. It gives the example of a patient complaining that she doesn’t get on with her manager, is feeling very stressed and wants to be signed off work. The medic determines in the consultation that although the situation is upsetting for the individual, they do not have a mental health condition and that they are fit for work. The medic then explains to the individual that they can see that she is being affected by work but is not in a situation where she should be issued with a Fit Note. The patient reacts badly and tells the medic that their manager has been really horrible to her and that she is finding it difficult to cope. The medic is directed to say that they appreciate that that may well be the case but to explain that the situation is not making the patient ill. If they were ill then they would be issued with a Fit Note and the medic would be acting with their health interests in mind. Instead, the medic is encouraged to explain that this is not a medical problem but a management issue and that going off on the sick will not resolve the problem or help her to find another job if that is what she decides to do. If that conversation happened, I think all employers would be relieved.

The medic is then encouraged to discuss with the individual whether they can talk to somebody at work to help resolve their problems such as speaking to HR, a Trade Union representative or speaking to ACAS. In the case study, the patient decides to approach another colleague for advice, to check the internet and to look at ACAS materials on managing conflicts at work.

Using that example, the situations we come across in HR where this is some kind of conflict or dispute in work, should not by this analysis result in somebody being signed off from work. It will be really interesting to see to what extent the medics toughen up their approach, as we all know that the stereotype is that Drs will provide a Fit Note “on demand”.

In the question and answer section of the document, it’s interesting to see that there is a question relating to “what if my patient fears job loss, stigma or discrimination if I reveal a health condition (or its effect on their work functioning) on their Fit Note?”. The answer is as follows: “if you feel that revealing a particular diagnosis or a limitation would harm your patient’s wellbeing, compromise their position with their employer, you can enter a less precise diagnosis on the Fit Note”. We have all come across examples where a Fit Note has said something like “unwell” or “stress” rather than an actual medical condition – this is why it is always worth referring somebody to occupational health to get the full picture. It reminds us that this scenario may be behind what a medic has written and that all may not be what it seems from the face of the paperwork: further exploration is necessary.

It is interesting to note that medics are encouraged to only issue bereavement related Fit Notes if somebody is genuinely so distressed by what happened to them that they are unfit for work – where they are not actually medically unwell then they should be having compassionate leave with their employer not time off sick. Again it will be interesting to see how many medics follow this guidance.

There is also further guidance for employers and line managers: Fit note: guidance for employers and line managers. Amongst other things, this repeats the position that has been the case for some while now but which I find employers are often confused by, in relation to return to work before the end of a Fit Note. The employee can come back to work at any time, even if this is before their Fit Note expires and they do not need to go back to their healthcare professional first. If somebody is coming back and you believe it is too soon or harmful in some way, then you would need to refer to occupational health for an assessment and further guidance. Where a healthcare professional assesses somebody is fit for work, they will not be issued with a Fit Note (there are some very narrow occupations where certification has to be given).

Something else that strike me about this new guidance is the emphasis that people do not need to be 100% fit to return to work because they may well be returning to work with adjustments and need to do alternative duties. That would probably surprise employees.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones COVID-19 Disability Duty of Care Employment Law Employment Rights Act 1996 Equality Act 2010 Health and Safety Health Conditions Sick Pay

Long COVID was a disability

Royal Courts of Justice, London

The first Employment Tribunal case to determine that an employee with long COVID was disabled within the meaning of Section 6 of the Equality Act 2010 has taken place. The employee was a caretaker and he tested positive for COVID-19 in November 2020. Initially, he was experiencing mild symptoms. After isolating, he developed severe headaches and fatigue that were so severe that after simple acts like having a shower or getting dressed, he had to lie down and recover. He struggled to stand for long periods. He couldn’t undertake household activities like cooking, ironing or shopping. He experienced joint pain, loss of appetite, a reduced ability to concentrate and difficulty sleeping. This all led to him feeling unable to socialise. His symptoms were unpredictable: he would experience an improvement, only to suffer from fatigue and exhaustion again.

In January 2022, so after a few months, his health began to improve but the sleep disruption and fatigue continued to affect his day to day activities. His notes referred to long COVID Post Viral Fatigue Syndrome. The employer obtained occupational health reports which both indicated that he was fit to return to work with a view that the disability provisions of the Equality Act were unlikely to apply. However, due to his fatigue levels and the fact that he didn’t return to work, in August 2021 because of ill-health, his employer dismissed him when he had been absent from work for 9 months.

The Tribunal has had to determine the preliminary issue of whether he was disabled at the relevant time. It has concluded that he was and that he wasn’t exaggerating his symptoms and had a physical impairment (The Post-Viral Fatigue Syndrome caused by COVID-19). The Judge found it relevant that there was no incentive for him to remain off work when he had exhausted his sick pay. They found that his symptoms were consistent with the June 2021 TUC Report into long COVID and in particular, the fluctuating nature of those symptoms. The physical impairment had an adverse effect on his ability to carry out normal day to day activities and they found that the effect was more than minor or trivial and that it was long term because it could well last for a period of 12 months when viewed from the dismissal date. In particular, they noted that the employer themselves was of the view that there was no date in sight where a return to work seemed likely.

Clearly this case does not mean that the employee will be successful in his claims of disability discrimination – at this stage he has just got over the first hurdle of proving that he had a disability. The Tribunal will have to go onto consider whether or not the dismissal was justified in all the circumstances. In doing that, they are particularly likely to take into account to what extent reasonable adjustments were explored and the process that was followed around the dismissal. This might include considering alternative employment.

Indeed, in another case, the Employment Appeal Tribunal has considered Section 15 of the Equality Act which you will recall is ‘discrimination arising from a disability’ in connection with dismissal following a period of absence. When Section 15 is raised, the Tribunal is going to be considering whether dismissal was a ‘proportionate means of achieving a legitimate aim’ of the employer. That case reminds us not to act prematurely in dismissing a disabled employee – the employer had grudgingly adopted a trial in an alternative location but failed to implement the trial reasonably or properly evaluate its success before their decision to dismiss. Where there was such an opportunity of work from a different location, a Judge is likely to find that that alternative was a less discriminatory alternative to dismissal that the employer should have taken. Clearly that wouldn’t have helped the employee with long COVID as he wasn’t able to work at all at the stage he was dismissed.

Anna Denton-Jones
Refreshing Law

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Absence Anna Denton-Jones Disability Employment Law Health Conditions Return to Work Sick Pay

Extension of who can provide an employee with a Fit Note

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You will all be familiar with GPs providing employees with certification that they are insufficiently well to attend work on day 8 of their absence, enabling the employer to then process, for example, statutory sick pay.

Some new regulations, snappily titled “The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) (No. 2) Regulations 2022″ amend the position to expand the category of people who can sign Fit Notes for the purposes of Statutory Sick Pay and making Social Security claims.  From 1 July 2022, registered nurses, occupational therapists, pharmacists and physiotherapists will also be able to sign the Statements.  The idea behind this is to reduce workload on GPs and as you can envisage the GP practice may pass some routine work to the practice nurse, for example.

However, employees are still going to primarily be thinking of their GP when they are thinking about evidence for their employer of them not being fit to attend work.

You will need to update managers on this development so that they appreciate that any paperwork they see with the four new categories of signature are genuine and acceptable.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Employment Contract Employment Law Employment Rights Act 1996 Redundancy Settlement Agreements Video Without Prejudice

Video | Negotiating a Settlement Agreement (Employer)

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Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing and offering her top tips on negotiating Settlement Agreements from the perspective of an employer.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Collective Redundancy Employment Contract Employment Law Employment Rights Act 1996 Redundancy Settlement Agreements Video

Video | Negotiating a Settlement Agreement (Employee)

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Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing and offering her top tips on negotiating Settlement Agreements from the perspective of an employee.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Compensation Discrimination Law Employment Contract Employment Law Employment Relations (Flexible Working) Act 2023 Employment Rights Act 1996 Equality Act 2010 Pay Remote Working Working from Home

Cutting pay for those who choose remote work

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This week I was happily reading a ‘People Management’ article about an employer who had moved to fully remote working who was extolling the virtues of having done so, particularly around productivity. The next headline that caught my eye was that Stephenson Harwood, a law firm, had announced a 20% pay reduction for employees who choose to continue to work from home on a full-time permanent basis.  

I’ll leave aside the damage that such a move might do to employee relations and just focus on the legal issues.

Firstly, any such manoeuvre would need to be agreed with the employee in writing because it is a change to the current contract of employment.  An employee who moves to full-time homeworking is changing their place of work as well as changing their pay, in this example. Thus any change has to be agreed to. 

The  employee will also become entitled to claim expenses for travelling to the office – in this case, the employer is requiring them to attend once a month.  

One of the interesting points for me is that that the law firm has a hybrid working policy and staff are already permitted to work remotely for 2 days each week, which seems to be the average that many employers are experimenting with.  Given that those employees are not being required to agree a change to their salary, one can immediately see equal pay arguments as there is unlikely to be substantial differences between the kind of work that the employee hybrid working is doing compared to the fully remote one. The firm would have to rely on the material factor defence to justify the difference in pay for employees who are allowed to work 2 days a week and those who are working from home 5 days a week.  This is unchartered territory but if I was a betting person, I would bet that a Judge would be reluctant to find that there was substantial difference, particularly as working from home remotely, the employer saves the cost of having to run a desk in the City, the employee takes on the burden, for example, of electricity during the working day.

All good HR people will instinctively twitch at the potential for discrimination claims.  If those who choose to work fully remotely, on a full-time basis, do so because they are carers, for reasons related to their childcare or disability, they are entitled to launch discrimination claims about the indirectly discriminatory impact this policy has on them.

The spokesperson from the law firm also made a real blunder in admitting that those adopting exclusively remote working practices would be likely to be ruled out of promotion to partner level. Whilst everyone has been talking about hybrid working, we have been worrying about distribution of work so that those who are most visible in the office do not benefit from training opportunities, promotion and opportunities to do certain kinds of work compared to their colleagues who may be less visible as they are not in the room. This bold statement merely highlights the very worst fears that we all had.  Again, this kind of attitude, if followed through into practice, is likely to give grounds for discrimination claims.

I am sure we are going to see the lessons learned as we move forward… it makes me sad when I see other lawyers in my profession setting the worst of examples.  Especially in a week where somebody reported a significant increase in the number of employers reporting increased productivity or efficiency from home and hybrid working arrangements.  This was based on a survey of a 1,000 employers.  What’s interesting about that survey is that they surveyed employers in December 2020 and then again in October and November 2021, with the numbers reporting a negative impact from home working and hybrid working falling and those reporting positive effects increasing, suggesting that as time has gone on through the pandemic, people have become more used to new working arrangements and support it.

Anna Denton-Jones
Refreshing Law