Category: Duty of Care

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Loss of an employee’s records — A data breach claim

Royal Courts of Justice, London

An employee who worked for Tesco settled her data breach claim for £3,000. She had requested copies of the information that Tesco held on her, using the subject access request mechanism that you are probably familiar with. She had, during a period of over 15 years working for her employer, given them a significant amount of ‘sensitive personal data’ in the old data protection jargon, now called ‘special category data’. This included details about counselling she had received in relation to her mental health, details of post-natal depression and the management of those health conditions. Most employers will have this sort of ‘special category data’ even if they don’t collect other data like criminal records.

It appears that Tesco could not lay their hands on this information, presumably in a physical format and there was a delay because the file had been lost at some point in the past, perhaps when there was a move of offices.

Tesco had written to her explaining that they had looked for her employment records but couldn’t find them. This then triggered her putting in her data breach claim, which would be to a Court and not an Employment Tribunal.

Tesco settled the case for £3,000 and it has been reported in the local press. The publicity surrounding these events is bound to give other employees ideas. It shows that the loss of data can be just as problematic as retaining historic data that you don’t really need to and can’t justify retaining.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Duty of Care Employment Law Employment Rights Act 1996 Equality Act 2010 Gender Inclusivity Health Conditions Menopause Sick Pay

Developments in the law relating to menopause

Royal Courts of Justice, London

The Employment Appeal Tribunal has only ever heard two cases in this space. Most recently they dealt with the second case that’s come before them where essentially they told the lower Tribunal off for failing to recognise the employee’s disability and potential sex discrimination claims. The case involved Leicester City Council and a social worker who was claiming constructive unfair dismissal, disability discrimination and sex discrimination. Her claim centred around the Council’s treatment of her in relation to her menopausal symptoms.

In her claim she described suffering from physical, mental and psychological effects of the menopause for a 2 year period. This included insomnia – causing fatigue and tiredness, light-headedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines and hot flushes. These had a negative impact on her life to the extent that she struggled physically and mentally to cope, had been to her GP who prescribed hormone replacement therapy and was under the care of a consultant at a specialist menopause clinic.

The employer had referred her to Occupational Health but were unable to meet the request that she be reviewed by a female doctor. The employee felt embarrassed and uncomfortable discussing her symptoms and the difficulties she was experiencing in their presence and in particular she had had a work related warning for her absence levels and at appeal, four men were present to make the decision. She described how when she had advised a male manager that she was suffering from hot flushes in the office, he had said he also got hot in the office, dismissing this as a menopause symptom.

The legal issues in the claim were more about the Tribunal having not applied the right level of detail to the explanation of their findings. The case still illustrates a number of key points:

  • That the menopause and menopause related symptoms can meet the definition of disability under the Equality Act as regards a physical or mental impairment which has a substantial and long term adverse effect on somebody’s ability to carry out normal day to day activities.
  • The need for employers have their antenna looking to spot in performance cases or cases where they are managing absence levels, whether there may be an underlying issue such as the menopause and the need, where there is, to use normal processes, and ensure further advice is obtained rather than ploughing on regardless, dismissing the issue as ‘just sickness absence’.
  • When referring somebody to Occupational Health, it would be respectful, to abide with an employee’s wishes to enable them to see a female Dr if they want. A rule that they had to see whoever was available may be indirectly discriminatory and you would need to think carefully about whether you could justify such a requirement or whether it’s actually going to be seen as a separate act of harassment or victimisation if you fail to be flexible on this.
  • It’s important to train managers so that they are aware of the menopause and don’t belittle it or think it can’t affect some people. We have a one-hour training session that we are able to provide on this subject area, if you are interested.

Interestingly, the Institution of Occupational Safety and Health has, as part of its response to the Parliamentary Enquiry that is currently going on into the issue of menopause in the workplace, made a number of recommendations including that employers need to take a more holistic view and put the spotlight on effective management practices and practical support. The Parliamentary Enquiry which launched in July of this year will consider, for example, whether it would be necessary to elevate menopause as a stand-alone disability like cancer under the Equality Act so that it gets the recognition it lacks at the moment.

Anna Denton-Jones
Refreshing Law

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What to do when you’re worried about someone — Suicide awareness

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Friday, 10th September was Suicide Awareness Day. By coincidence I ended up having the same conversation twice with two different organisations. In both cases, the employer had an employee who was on long term sick and where a pattern of contact with the employer had been established but they felt that something had changed. The lack of contact they were now experiencing was out character from the employee. In one case the employee had shared that they were having negative thoughts and in the other the employer was just concerned.

In such a case where efforts to speak with the employee are not fruitful, if you have any concerns then I recommend you act on them rather than ignore them. Our intuition is there for a reason.

The first port of call might be the next of kin that the individual has left with you. You don’t need to get into discussing any details about the employee or their absence, their health or anything like that: you can just remind the next of kin that they have been appointed by the employee as the next of kin and that you are worried about the employee because there has been a change in behaviour — are they okay? This is likely to prompt the next of kin to say that they will check.

The second port of call might be the GP. If you have the employee’s GP details which you are likely to do from the fit notes that they will have been submitting, you could contact the practice explaining that you have concerns and this is likely to trigger the practice then checking up on the individual. The GP will not be able to discuss anything about the individual with you but they will note if you are saying there is out of character behaviour and the fact that you have bothered to take the time to call.

Clearly you might be barking up the wrong tree entirely but for the sake of a phone call or two, if you are in any doubt, it is better than regretting not having raised a concern if there is something to worry about.

Anna Denton-Jones
Refreshing Law

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Burnout and the risks for employers

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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:

  1. Feeling of energy depletion or exhaustion.
  2. An increased mental distance from one’s job or feelings of negativity or cynicism relating to one’s job.
  3. Reduced professional efficacy.

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”?

  1. Actively encourage employees to take holiday, including those in senior leadership positions and create an environment where people are allowed to genuinely switch off, which will require senior leaders to lead by example in this regard.
  2. Reconfigure email so they send only during set hours.
  3. Encourage all managers to check in with the members of their team as regards workload. It is a culturally normally thing to happen for work to be juggled around between different people to alleviate the pressure points?
  4. Encourage employees to speak up if they are starting to feel overwhelmed, explaining that support will be available if they do, including the possibility of devoting extra resource to take on workload.
  5. Train managers to spot the signs when somebody is beginning to become overwhelmed and not cope and to not be afraid to intervene when they see that happening.
  6. Refer the employee to occupational health immediately for guidance on other measures that can be taken.
  7. Have an employee led position about what they think needs to happen – they know themselves best.
  8. At this stage, emphasise that any changes to job description or duties are temporary whilst you are supporting them to recover.
  9. Simple things can apply, such as permitting the employee to say no to new tasks.
  10. In any return to work/management plan, it will be useful to schedule regular breaks including identifying what activities the employee is going to be doing to help them reduce the feelings of burnout in terms of self-care and exercise etc.

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

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Anna Denton-Jones COVID-19 Duty of Care Employment Rights Act 1996 HR Return to Work

Refusal to work due to COVID-19

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A case involving an employee who refused to attend work due to COVID-19 – Rodgers v Leeds Laser Cutting Ltd caught my eye because it is one of the first decisions that I have heard about dealing with an automatically unfair dismissal claim under Section 100 of the Employment Rights Act. Section 100 (d) permits an employee who is dismissed, in circumstances of danger, which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, to claim automatically unfair dismissal.

In this particular case, the employee had a child with sickle cell anaemia and a 7 month old baby and was concerned that attending work would put his family at risk. The Employment Tribunal found that the employer had generally complied with all guidance as regards creating a COVID safe workplace: it was a large warehouse space, where it was possible to socially distance, face masks had been provided, guidance had been issued around hand washing and sanitiser had been provided and there were no criticisms made of the employers risk assessments or other measures put in place for COVID safety. In summary, the employee was more concerned about COVID-19 generally in the world at large as opposed to having any specific complaint about his actual workplace and how his employer had addressed those risks. In particular, the Tribunal noted that he had not made any complaint.

In those circumstances, whilst the wording used in the general Coronavirus Regulations (Public Health legislation) does use the same language and establishes that COVID-19 is a serious and imminent danger in general, the Tribunal felt that that could not be applied to this particular workplace because if you applied the logic that because COVID-19 is a general risk in the world, making every workplace dangerous, then every single employee across the country would be able to refuse to attend their workplace. For that reason and the fact that the employee had not made any specific complaints about his workplace, he failed in his complaint.

Of course, that does not mean that every employee will fail in such a claim: the TUC has reported in the week commencing Easter Monday, that their data shows that a third of all workplaces are not complying with the government guidance on COVID safe working. Clearly employees who work in those sorts of workplaces may have been successful in a similar argument.

This particular employee did not have 2 years’ service, so he was purely bringing his automatically unfair dismissal claim. However, if he had had 2 years’ service, he may well have brought an ordinary unfair dismissal claim – the Tribunal commented in this case that they would have had procedural concerns about the way in which the employer had handled the dismissal. As well as the procedural hurdle in an ordinary unfair dismissal claim, a Tribunal is also going to think about whether it would fall within the range of reasonable responses test to dismiss an employee who was worried about his family. I would suggest that the rush to dismissal in this case would probably make it unfair. An employer who issued the employee with warnings and had taken every step to work with the employee to allay his concerns, meet with him and get him back to work would be in a stronger position.

You could also see how in some cases an employee with their own disability could also have Equality Act claims if their own health was at the bottom of their refusal.

In any event, this is only a first instance decision and at some point the Employment Appeal Tribunal will have to rule on these sorts of issues and give guidance for employers but it is heartening essentially that the employee was not seen as being reasonable in this case and hopeful that the EAT will agree with the logic that general COVID risks in the world at large does not qualify as serious and imminent danger in the workplace, as every employee would be able to refuse to work.

Anna Denton-Jones
Refreshing Law

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Video | Working from home and ill health

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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

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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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Showing the complaint to the employee

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You will be familiar with the idea that in a disciplinary process the person who is accused of wrongdoing should hear the case against them or should hear or be told the important parts of the evidence in support of that case so that they are given the opportunity to criticise or dispute that evidence and put forward their own arguments. This comes from a case of Spink -v- Express Foods Limited 1990.  But what about the situation where there is a grievance investigation?

The Acas Code is silent on this issue but focuses instead on the person who has raised the complaint. However, as part of the investigation into the complaints that that person has raised, you will need to interview anyone that they have accused of wrongdoing.  For example, there may be an allegation of bullying and harassment.

One option would be to simply show the person, perhaps the line manager, the grievance letter. This is the most open and transparent position and one would hope that any line manager would behave professionally, see the grievance for what it is, and be prepared to answer those allegations in full. This position accords with the concept of ‘natural justice’ – nothing is being hidden and the accused has full opportunity to have their input to what is being said about them.

However, there may be cases where there is a concern that to take this open position would perhaps inflame or fundamentally damage the working relationship between the person who has raised the grievance and, for example, their line manager. The investigator may feel that a better approach would be to not show the full letter to the person who has been accused but rather to take them through the contents of the letter through a process of questioning so that they still have full opportunity to answer what is being said, but perhaps in doing this they can soften the language a little and take some of the ‘heat’ out of the matter.  If the investigator does go down this route they will need to be skilled in questioning and make sure that they do give the full picture to the person so that they are being fair to everybody.  For example, it wouldn’t be appropriate to just say ‘what happened on 5th August?’ You would need to go further and ask ‘Joe Bloggs has stated that there was an argument between the two of you on 5th August. He has said that your voice was raised and that other people noticed that you were shouting.  Is that true?’

If the complainant’s letter refers to complaints against a number of different people then, again, it may be sensible to separate out the allegations so that you are only interviewing an individual about those matters that are relevant to them.

In any event, if the individual (for example, the line manager) is named in a grievance letter, strictly speaking, under the Data Protection Act, they can make a Subject Access Request requesting to see the contents of the letter.  For that reason, again, the employer may want to choose the most open position.

It could also be damaging, as regards the relationship between the employer and the person who has been accused (such as the line manager), if the employer does not disclose the contents of a grievance letter. The line manager may feel that something is being hidden or that they are not being given a full opportunity to answer the case against them, even though at this stage there is no hint of a disciplinary.

The employer will need to carefully weigh all of these issues before deciding how to proceed.  If you have any questions please do not hesitate to contact us.

Anna Denton-Jones
Refreshing Law