Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the issues that arose in a recent case that went to a Tribunal in Manchester in relation to a company sending a pregnant worker home during the pandemic.
Anna Denton-Jones
Refreshing Law
As more and more of us feel that we are losing the ability to switch off from work and take an uninterrupted rest, which is of course required under the Working Time Regulations, more and more discussion is taking place about whether we need some kind of “right to disconnect”.
The French led the way in 2017, amending their Labour Code to include this right for employers with more than 50 people – their law requires the employer to negotiate with employee representatives to control the use of digital tools. Italy, Spain, Slovakia, Luxembourg, Netherlands and Germany have all followed suit with Ireland being the most recent addition. In Ireland their Code of Practice requires employers to have a policy in place which confirms that employees have a right not to work outside of normal working hours, that employers and colleagues should not routinely email or call outside of those working times and the employee should not be penalised for refusing to work during non-working hours.
Whilst that Code of Practice doesn’t have the force of law of in the sense that breaching it leads to a claim for damages, it could be used as a supporting argument when somebody is bringing a claim about something like breach of working time, health and safety legislation or bullying and harassment or plain old breach of the implied term of trust and confidence for a constructive dismissal.
You may have seen email footers that more routinely now set out the times in which somebody is likely to be contactable and/or answering their messages. More and more employers are carving time out in diaries when meetings cannot be timetabled and dictating that meetings should not be timetabled at unsociable hours, save in emergency circumstances.
Initially I took the view that employers in the UK should not be waiting for our Government to legislate, (the TUC has called for the Government to include something in the Employment Bill but there is no indication that they are thinking of it) and encouraging employers to incorporate something into their policies and procedures.
However, I also remember the days before the Blackberry when my desktop PC sat on my desk in the office and I was unable to deal with email correspondence if I wasn’t physically at my desk. I remember being given a small square to stick on the back of my hand by a colleague that I did some stress at work training with for a large employer. The square would change colour back to blue when your body chemistry changed and your body was full of the stress hormones, cortisol. As an experiment I kept this and placed it on my hand the next day that I was due in the office. I remember driving to work and monitoring the situation. During my commute to work, when I was beginning to think about work, the feedback was that I was not suffering from stress. However, as I approached the door and was using my door entry fob, that is when my stress levels rose, telling me that the anticipation of what I might find when I logged my computer on was stressful to me.
I approached my desk and duly logged on and my stress levels remained high until the time when I’d managed to see what was there and prioritise what was urgent and what else could take a bit longer to deal with. Once I had a handle on the situation, the colour of the square returned to normal.
When the ‘Blackberry’ was introduced (which is a form of mobile phone for those you who are too young to remember!), allowing me for the first time to have email on the go I remember thinking it was a positive thing and that now in the short moments that you might have waiting somewhere or when you have parked your car, you keep an eye on things, delete the rubbish and then arrive back at my desk ready to roll because I would know what things I needed to deal with and when. That’s many years ago now and I’ve still always thought that the ability to have your email follow you has actually been a positive thing on balance.
What is different now stems from a number of issues:
Any employer considering how they deal with mental health issues and wellbeing particularly as we move towards more hybrid forms of working, will need to be putting in place guidance around employees not feeling that they need to work outside their set hours but the key underlying issue is workload and I would suggest that it’s workloads in general that need to be being looked at rather than focusing solely on something like the right to disconnect. It will only ever be part of the jigsaw puzzle.
On 21 January 2021, the European Parliament approved a Resolution asking the Commission to introduce a Directive to establish the minimum requirements for remote work across the EU which would include the ‘right to disconnect’. That would require employers to establish a detailed written statement setting out arrangements for switching off digital tools for work purposes; set out systems for measuring working time; encourage training and awareness of the right to disconnect in the workplace and make sure that workers don’t suffer adverse treatment or dismissal for having exercised their right. This will undoubtedly reinforce things across Europe and employees are naturally going to start to gravitate towards those organisations that they feel are looking after them and shunning those who they feel are abusing their private lives by intruding on them.
We are likely to see rapid change in this area but I would caution employers to look at the whole picture and not just this narrow aspect. A poll conducted by Owl Labs and reported in People Management found that lots of employers are considering implementing shorter working weeks with others concerned that focusing on core working hours could be to the detriment of those who have to work in a flexible way for caring reasons including parents. This is a topic I will return to.
Anna Denton-Jones
Refreshing Law
A recent case illustrates the risk employers face every time they receive a grievance in relation to a victimisation complaint.
If the grievance has any kind of discrimination angle to it, bullying harassment or an argument about less favourable treatment because of a protected characteristic or an allegation that the employer has failed to make reasonable adjustments to accommodate a health issue, the employer also runs the risk of a victimisation complaint.
The raising of the grievance, if it references the protected characteristic and allegations of some form of discrimination, becomes a “protected act”. If, as a result of that protected act, the employee then suffers some other detriment, this will give them grounds to claim victimisation.
This can be as simple as suffering the consequences of colleagues knowing that a grievance has been raised and behaving differently towards the person who has raised the grievance as a result. For example, a manager who has been accused may be very angry about the accusation that has been made or other colleagues who are interviewed as witnesses in the grievance process might change their behaviour towards the individual, “sending them to Coventry” or even telling them that they agree with what the employee has done. One of the first mediations that I was ever involved with, involved this scenario where a colleague clearly felt a manager didn’t deserve to be criticised by the other employee who had raised a grievance.
A recent case that illustrated this, was a case against Online Travel Training Group Ltd by Mr Weinreb. He was a Business Development Manager and had some kind of altercation with a Finance Manager after asking for her help. It sounds as though the Finance Manager didn’t like the employee and felt he should have known how to do the things he was asking for help with. The Tribunal felt that she goaded him and created conflict. Another colleague implied Mr Weinreb had been Jewish during a discussion about team work, and he also alleged that a conversation about the gay dating app ‘Grinder’ implied his colleagues thought he was a closet homosexual.
The case ended up in cross-grievances – the Finance Manager raised a grievance against Mr Weinreb because he recorded a conversation held about his commission. Mr Weinreb raised a grievance alleging discrimination and complaining about how an employment review meeting had been held.
Faced with the cross-grievance, the Managing Director missed the opportunity to go to a mediator and really get to the bottom of what was going on between the two individuals. Instead the pair were told that they should only communicate with each other by email (Tip: never go down that route).
Matters were investigated but played down – the Finance Manager was reminded of her obligation to show respect to her colleagues. Mr Weinreb attended a Grievance Outcome Meeting with the Managing Director who sounds like she lost her temper. At one point, she banged on the desk and told Mr Weinreb that she was very upset and offended by his allegations of discrimination about his colleagues (Tip: never do this!).
Mr Weinreb clearly didn’t feel listened to and this is a very important part of any grievance process and so appealed the grievance outcome.
The company subsequently dismissed Mr Weinreb for his “unacceptable conduct”. The Managing Director felt that his allegations had been spurious.
The banging on the table at the grievance outcome and failure to give Mr Weinreb any details about why his employment was being terminated were the acts of victimisation in this particular case. It was found that the Managing Director would not have behaved in the way that she had, had the employee not complained of discrimination in the first place.
Since employers are vulnerable to the emotional responses of those accused in grievances and those around them, it is very important that employers must always make it clear to those involved that any mistreatment of the employee who has raised a grievance will, in itself, be a disciplinary issue and that they are alert to their behaviour so that they can take action when necessary.
Refreshing Law
3 June 2021
So imagine you’ve just suspended an employee and packed them off with their letter setting out the terms of their suspension. You now need to address their reporting lines and it can be tempting to write an email to staff perhaps even telling them that their colleague has been suspended. I currently have an Employment Tribunal file on my desk where the communication to colleagues that took place immediately following suspension is something that the employee has leapt on in order to claim that minds were made up, his dismissal was entirely pre-judged from the moment of suspension and that trust and confidence would have been broken at that point in time.
I suggest instead that you speak to employees. The reason that I am suggesting speaking to colleagues is that you will not then have paperwork which will form part of any data protection subject access request when it is inevitably made.
When you speak to the colleagues you should inform them that their line management is temporarily changing and explain who they are now reporting to and, if they are required to take on some of the suspended employee’s duties, state this fact. You would reference the suspended employee as being temporarily absent from work. Curious colleagues are bound to ask why but I would just say that this is “confidential”. You can always bat it back to the colleagues by saying that if it were the other way around, they would want confidentiality to be protected and when most people think about it like that, they can understand.
You may be worried about the suspended employee trying to affect the investigation in some way by speaking to their colleagues. If that is the case there is nothing wrong with you, when you have this conversation, explaining to employees that there is nothing wrong with them having purely social contact with their absent colleague but they should not be discussing work with them.
It is entirely possible that the suspended employee themselves will tell all and sundry that they are being suspended and they are being investigated. If that is the case and people are querying the position, then you are free to confirm that you would have preferred to keep the matter confidential but now that they employee has explained to them, that yes there is an investigation and they are duty bound to co-operate with that investigation if they are called to do so. I wouldn’t go into any details about what the investigation is about.
In general, I would leave it to the investigator to plan out how they are going to conduct their investigation, who they are going to speak to and to brief any witnesses in terms of issues around co-operation with the investigation, confidentiality, the fact that the suspended employee may well get to see an investigation report etc.
Anna Denton-Jones
Refreshing Law
Last year the World Health Organisation recognised “burnout” for the first time in its classification of diseases. It defines “burnout” as “mental or physical exhaustion caused by excessive or prolonged stress and a syndrome resulting from chronic workplace stress that has not been successfully managed”. It highlights the three characteristics:
For many people who were reading that definition they would be saying yes or would be ticking off the criterion, due to the pandemic, with the stresses and strains of the last year or so only adding to the problem.
Stress is normally a short lived thing or tied to a specific goal so is not harmful. If the stress feels never ending and comes with feelings of emptiness, apathy and hopelessness, it may be indicative of burnout.
A recent case involving a firm of solicitors that has been litigated through the Courts highlights the risk of employers not taking this issue seriously. In this particular case, the employee concerned was a high flyer – for a period of around 5 years he had been one of the most high billing or income generating fee earners at the law practice, being in a leadership position, in charge of one of the firm’s offices. Criticisms levelled at the employer included, failing to reduce his working hours or ensuring that he was taking his annual leave. He had been dedicating 15 hours a day to work and the employer faced criticism for not having picked up on that and done something about it.
It seems that when the condition began to manifest including the employee acting out a character and making an inappropriate joke which was then used as a disciplinary matter, the firm failed to put in place a structured plan for offering support. In particular, when the employee had 7 weeks’ ill-health, they didn’t take any steps to find out about the extent of his condition. If they had done so, they may have been more aware of his fragility and the problem that they were dealing with.
In particular, at the point at which he has tipped over into “burnout”, the firm had a duty to put their minds to how they could prevent the risk to his health that his job was causing. The problem is that the firm took the perhaps “usual” reaction of getting him to relinquish his management position. Indeed it was found that one witness had said that he should “drop back into midfield” and leave the captaincy to somebody else. The Judge in the case found that that was grossly insensitive. Of course the firm might have had genuine concerns over the impact on colleagues but there wasn’t really any meaningful communication around the issue or understanding of the workload issues or what was necessary.
These sorts of cases are going to be particularly relevant given all the evidence about people working from home, working greater hours, juggling all the other stresses that come with a pandemic and inadequacies in many cases of employers to be prepared to deal with these sorts of issues.
So what things can an employer be doing to prevent “burnout”?
If the medical condition the employee is suffering from becomes a long term thing then it could become a disability which is protected by the Equality Act, in which case the duty to make reasonable adjustments is going to apply. Where an employer has not tackled the issue early enough, if the employee goes through periods of absence and return to work with little changing, you can see how a pattern could be established that leads into disability territory.
In the particular case involved, the employer was potentially liable for the employees losses that resulted from his employment relationship coming to an end and not tackling the issue effectively.
Anna Denton-Jones
Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing ‘working from home and ill health’ and the potential impact on individuals and businesses.
Anna Denton-Jones
Refreshing Law
At the moment, we are in something called the “grace period”. New rules are going to come into force from 1 July 2021. Up until that point an employer is allowed to continue to rely on the checks to an EEA or Swiss National’s EU Passport or National Identity Card to evidence their right to work in the UK ie:- not differentiating between those who arrived before we left the European Union or after.
Provided the check is done and the employer doesn’t have any reason to believe that the employee doesn’t have the right to work here, they will have a statutory excuse against the civil fines that can be applied if an employee is subsequently found to be working here illegally (£20,000).
If the EU National has already registered for and achieved Settled Status in the UK under the EU Settlement Scheme where if they have been here for 5 years they qualify, they can evidence their right to work to you, using the Home Office online service (www.gov.uk/view-right-to-work). Not everybody will have taken those steps yet, so in the meantime, old fashioned paperwork can apply.
If the EU National has not achieved Settled Status or obtained pre-Settled Status (which applies to those who haven’t yet been here for 5 years) by the 1 July 2021 they will no longer be entitled to work in the UK from that date, unless they are an Irish National (separate rules apply to those from Ireland who are entitled to work here). Thus employers will need to see evidence of that Settled Status or Pre-Settled Status from 1 July 2021.
Further guidance is expected to be issued for employers in relation to this issue nearer that time.
Anna Denton-Jones
Refreshing Law
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
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:
Anna Denton-Jones
Refreshing Law
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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