Category: Employment Rights Act 1996

Categories
Anna Denton-Jones Collective Redundancy Employment Law Employment Rights Act 1996 Redundancy Without Prejudice

Reminder about redundancy consultation

View of the City of London at sunset

You’ve probably got under your belt that consultation is key in terms of redundancy exercises. A recent case reminds us of quite how important it is. There’s been a trend in recent years of people trying to short cut the processes, undertaking some kind of assessment exercise, scoring people and taking that information to the lowest scoring individuals, perhaps in an effort to reduce the destabilising effect of pool situations, where a group of people is being placed at risk of redundancy together and have to wait while the process is followed to understand whether or not they are safe.

I’ve always felt that this was a risky approach and this was confirmed in the recent case of Mr Joseph De Bank Haycocks v ADP RPO UK Ltd.

In this case, the claimant and the wider workforce were not consulted about the redundancy proposals before the pooling and scoring took place. The criteria for selection and the claimant’s own scores were not provided to him before his dismissal. However, he appealed and was later provided with this information.

The Employment Appeal Tribunal found that a failure to consult at a formative stage meant that the dismissal was unfair. The appeal stage had corrected the flaw in the earlier process, when it came to providing his scores, but that did not correct the flaw with regards failing to consult. The EAT helpfully reviewed all of the authorities in this area and set out the following guiding principles for fair redundancy consultation:The employer will normally warn and consult either the employees affected or their representatives on their behalf.

A fair consultation occurs when proposals are at a formative stage (my emphasis added) and where the employee is given adequate information and adequate time to respond along with conscientious consideration being given to that response.

In consultation, the purpose is to avoid dismissal and reduce the impact of redundancies (again my emphasis added) so skipping ahead like this employer had, denied that opportunity entirely.

The redundancy process must be viewed as a whole and so it is right that an appeal may correct an earlier failing. This reiterates the importance of appeals. Again there seems to have been a trend in recent years of employers neglecting to offer this stage.

It’s a question of fact and degree as to whether the consultation is adequate. It won’t automatically make a dismissal unfair that there is a lack of consultation in a particular respect, and in terms of particular aspects of consultation, such as the provision of scoring, isn’t an essential ingredient to a fair process. However, the Tribunal is going to be looking at the consultation in the round, given that meaningful consultation is about information being provided and views listened to, prior to decisions being made. If an employer has skipped any of those things then it may cause problems.

It’s also worth noting that the EAT commented that whether or not it is reasonable to show an employee the scores of others in a pool will be case specific. Our advice would normally be to show the individual their own personal scores and let them know where they fall in terms of the range of scores given to others. For example, you might say “you scored bottom of 30, those potentially safe from selection scored between 60 and 75”. This then enables the individual to understand the context as to where they fit and how far apart they are from others in terms of scoring. Obviously this would be most important to individuals where scoring is very very close.

You may need to consider in your redundancy selection process, what tie-breakers are used if people do score the same.

Anna Denton-Jones
Refreshing Law

 

Categories
Anna Denton-Jones Confidentiality Disclosure Employment Law Employment Rights Act 1996 Equality Act 2010 Recruitment Rehabilitation of Offenders Act 1974 Right to Work

Reform to the Rehabilitation of Offenders Act 1974

View of the British Houses of Parliament from the river Thames, where the Employment Rights Bill is being debated

On 28 October 2023, the 1974 legislation was amended by the Crime Sentencing and Courts Act 2022 and accompanying Regulations.

In the past, some offenders were required to disclose their sentences for the rest of their lives. Now, custodial sentences of 4 years or less and of more than 4 years for some less serious crimes, will be spent “after a period of rehabilitation” of up to 7 years after the sentence has been served, provided that no further offence is committed in that period.

PenaltyPrevious Rehabilitation PeriodNew Rehabilitation Period
Community Order1 year beginning with the last day on which the order had effectNow it is the last day on which the order had effect
Custody of 6 months or less 2 years 
Custody up to 1 year 1 year
Custody of 6  months up to 30 months4 years 
Custody of more than 1 year up to 4 years 4 years
Custody of more than 30 months up to 4 years7 years 
Custodial sentences of more than four yearsNever spent7 years
Convictions for serious sexual, violent or terrorist offencesNever spentNever spent

Stricter disclosure rules continue to apply to jobs that involve working with vulnerable people.

The time frames that I have detailed are in relation to offenders who are over the age of 18. Slightly lower periods apply if the offender was under 18 at the time of conviction.

The new time periods are extended in the event of re-offending during the declaration period. A new conviction attracts its own disclosure period and the previous conviction and the new one need to be declared until the end of the original conviction’s active period or if later, the end of the new disclosure period applied to the more recent conviction.

Anna Denton-Jones
Refreshing Law

 

Categories
Disability Employment Law Employment Rights Act 1996 Health Conditions Mental Health Reasonable Adjustments Return to Work Sick Pay

Changes and guidance on fit notes for employers and line managers

View of the City of London at sunset

The government has just published changes to its fit note guidance for employers and line managers. It even included a handy checklist so that employers can avoid painfully drudging through the lengthy (4,462-word) document. The checklist includes the necessary steps and information that employers should have at their disposal when an employee has been issued a fit note.

Firstly though, what is a fit note? It’s a note from a certified healthcare professional who has determined after consultation with an employee, whether or not they ‘may be fit for work’ or are ‘not fit for work’. A fit note allows employers to discuss with their employees any health conditions that may prevent them from undertaking their work as usual. It also gives employers the chance to have an interactive discussion with their employees to establish tailored measures suited to both parties going forward.

The changes to this guidance as of 2022 state that where these fit notes had previously been required to have a signature of ink, they are now moving forward (as we all are) to accepting just the name and profession of the issuer. This enables the fit notes to be received and sent digitally. The DWP also expanded their accepted list of healthcare professionals who can certify the notes to include nurses, occupational therapists, pharmacists, and physiotherapists. It should be noted that although digital notes are embedded in primary care settings (GP), they are not yet in secondary care settings (hospitals), and so a pre-printed note may still be used by employees recently discharged from hospital.

There are a number of general rules that surround fit notes, so I’ll just outline the important ones to familiarise yourself.

In the first 7 days of sickness, employees can self-certify. If your organisation requires medical evidence within this time, any costs incurred by the employee for accessing a healthcare professional will be yours to cover eg:- where there has been a pattern of absence say on a Monday and Friday and you tell the employee that any further absence on these days will require a fit note.

The length of a fit note can cover a maximum of 3 months at a time during the first 6 months of sickness. Any specific time decided will be determined by the clinical judgement of the healthcare professional.

Private (non-NHS) healthcare professionals can produce reports like a fit note which can be considered. Private medical certificates or the Allied Healthcare Professionals Work Report can be accepted with no further need to obtain a further note.

Fit notes can come in a variety of ways, whether that be computer-generated and printed out, or sent digitally to your employee. Digital fit notes will include a barcode so that they can be scanned by employers and added to sickness records.

Now onto the fitness for work assessment and what that means for employers. The healthcare professional will state whether the employee is fit for work or not, and the length of time that any adaptions are required/the amount of time the employee is unable to work for. If they ‘may be fit to work’, the healthcare professional will give general recommendations on adjustments to be made for the employee to work safely or return to work entirely. These recommendations are not binding and if the recommendations cannot be implemented given the nature of work, the fit note can then be used as evidence for sick procedures.

General adaptions you may choose to explore as an employer include:

  • Phased return to work

  • Altered hours

  • Amended duties

  • Workplace adaptions

While at first glance these fit notes may appear to be potentially obstructive, by supporting your employee to stay or return to work you may actually avoid absence costs and minimise disruption for your organisation. Having an open discussion with your employee about adjustments will serve to create a more trusting work relationship that can only benefit both parties!

Martha Regan
Refreshing Law

 

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

Video | Settlement Agreements — An employer’s contribution to fees

YouTube video playing on a phone

Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the various issues around an employer’s contribution towards an employee’s legal fees when negotiating Settlement Agreements.

Anna Denton-Jones
Refreshing Law

 

Categories
Anna Denton-Jones Disability Discrimination Law Diversity Duty of Care Employment Law Employment Rights Act 1996 Equality Act 2010 Offer of Employment Reasonable Adjustments Recruitment

Employers making reasonable adjustments in recruitment

View of the City of London at sunset

An applicant for a job who had dyspraxia asked to make an oral job application instead of filling the online form that the employer required. The employer emailed him with repeated requests asking him to explain what his difficulty was with the online process. The individual had difficulty with written communication, indeed that was the reason behind his request in the first place, so he also struggled to deal with these emails. The employer ought to have realised this as they knew about the dyspraxia. The Tribunal ruled that a reasonable employer would have phoned the applicant in order to understand their situation more fully.

A factual quirk of this case is that the applicant was seeking to return to the same team, with the job applications being judged by the same line manager who had dismissed him 8 months previously (failed probation). Understandably, that may have been behind the employer’s reluctance to engage with the individual but what you don’t get to know is to what extent they knew about the dyspraxia during the probationary period and what reasonable adjustments were made at that stage to assist the individual in order to level the playing field and put them into a position where they might have been able to pass the probationary period.

This case illustrates the importance of making reasonable adjustments not only for your own employees such as probationers but for all job applicants. It also illustrates how sometimes the reasonable adjustment is something very cheap and easy to do (a phone call instead of an email) and how as soon as the employer has knowledge there is a disability they should be making adjustments not waiting for the employee to ask.

Anna Denton-Jones
Refreshing Law

 

Categories
Anna Denton-Jones Anonymity Confidentiality Data Protection Act 2018 Data Use and Access Act 2025 Employment Law Employment Rights Act 1996 Freedom of Speech Investigations Privacy

Monitoring exchanges in WhatsApp

WhatsApp icon on a phone screen

Your average employee and their manager are merrily commenting to each other and their colleagues using apps such as WhatsApp, because such applications are an easy way to communicate, saving  time compared to picking up the phone to each other, interrupting each other or sending a more formal email. However, to your average employment lawyer and HR professional, it can feel like the lid coming off Pandora’s box.

You are probably all aware of recent examples of harassment where employers have got into trouble because of the content of messages on Apps (Met Police being an example that hit the news). Today I was reading about an example in ‘People Management’ where a misogynistic older male had sent a female colleague nearly 200 messages that were wholly inappropriate for the workplace including memes, jokes that the sender probably would put down as “banter” and so on. In that particular case, the employee was awarded £19,000. It is for good reason that we are all triggered with concerns as we are asked to delve into this area but that is not the focus of this thought piece. I wanted to focus on the extent to which the employer is able to access WhatsApp messages, for example, if they are stored on a company device.

This largely depends on what you have set down in writing to the employee. An employee will have a reasonable expectation of privacy in their working life, which will include their office space which also now includes their “device space”. So, if the employee is having a chat with their friend, for example, or their partner, they are likely to have a legitimate expectation that that conversation is private in just the same way as in the Halford case years ago, where the employer got into trouble for listening to a conversation with a trade union representative on the telephone. This is why we have to draw to an employee’s attention, what monitoring takes place and you will find statements in policies and in contracts managing that employee’s expectation, so setting out when, for example, a manager is likely to be reviewing the content of their laptop or their device, such as if they go on holiday or if they are off sick. Just because a non-work related matter is being stored on a work laptop or a work phone or iPad, doesn’t mean it loses the quality of privacy in the sense of management of expectations.

You could go further these days and spell out that if employees use things like Facebook or WhatsApp on work equipment, that they should not have any expectation of that communication remaining private. For example, if a manager does have to access the device or after the employee leaves, if they have left those applications open and we then discover something, we are able to use that evidence…

Having said all that, my experience of the Employment Tribunal system is that they do have discretion over admissibility of evidence. Whilst you may have technical legal arguments as to why something has been obtained in an inadmissible way, the Tribunals as opposed to the Courts in the UK, tend to be much more relaxed and are just interested to see the content of the messages and rule on how they affect the legal questions before it. From an employee perspective, it can be deeply frustrating to feel violated in terms of your privacy rights and then find that arguments along those lines don’t get you terribly far and the Tribunal’s focus remains on the substantive claims you are bringing.

I have also recently seen the first examples of emojis causing significant offence and a harassment and victimisation claim but in this particular instance it was the crying with laugher emoji that was the issue. This illustrated that the combination of the emoji with the words used alongside it turn what might be relatively innocuous into the recipient being able to argue that it was offensive. Make sure you have updated your policies to include offence being caused by emojis…

Anna Denton-Jones
Refreshing Law

 

Categories
Anna Denton-Jones Employment Law Employment Relations (Flexible Working) Act 2023 Employment Rights Act 1996 Reasonable Adjustments Remote Working Return to Work Working from Home

Video | The Employment Relations (Flexible Working) Act 2023

YouTube video playing on a phone

Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the new Flexible Working Act (which comes into force in July 2024). This video focuses on the processes that need to be followed under the new Act.

Anna Denton-Jones
Refreshing Law

 

Categories
Anna Denton-Jones Duty of Care Employment Law Employment Rights Act 1996 HR Mental Health Pay Sick Pay Stress

Are you entitled to withhold SSP?

View of the City of London at sunset

You’ve probably noticed wording in your sickness policy that makes it clear if employees don’t comply with your procedure, they risk the payment of Statutory Sick Pay (SSP).

It is not open to an employer to withhold SSP where the employee provides medical evidence from their GP late. For example, you may require the certificate to be given to you on day 8 of absence, and the employee might not get around to giving you a certificate until day 10.

An employer is allowed to not pay SSP if the employee has failed to notify them of the absence, and there is no good reason to cause the delay in notification. For example, the employee is supposed to notify you of their absence on the first day of incapacity – if they didn’t notify you and essentially were absent without leave for the first few days and told you on day 8, then potentially Section 156(2)(a) Social Security Contributions and Benefits Act 1992 applies. So, for example, if the employee had gone AWOL effectively for the first week and then telephoned in, the employer is entitled to withhold for the duration of the delay.

Employers may introduce something more onerous as a matter of contract. For example, that the employee has to report in sick by a particular time on the first day of their absence and thereafter at regular intervals. That cannot override the statutory scheme when it comes to SSP but if more generous contractual sick pay is available, such as payment for the waiting days when SSP doesn’t apply or payment of full pay or something more than SSP, then the employer will be able to follow what they have said in their contract and withhold the extra payment if the employee has not complied with the rules.

Under SSP rules, HMRC in its www.gov.uk page ‘Statutory Sick Pay: employee fitness to work’, states that “if an employer decides to stop payment of SSP, they should explain their decision to the employee”. The employee will be entitled to a written statement from the employer and can seek a formal decision on their entitlement from HMRC Statutory Disputes Payment team. You might like to refer to the ‘Stop Payment of SSP Section’ of that Guidance. There is an example letter to notify the employee that you will not be paying them.

There will be occasions where the employer has real reasons to believe that the person may not have been unfit for work. For example, they may have requested annual leave and that request has been rejected, so the individual then phones in sick. Clearly the employer would have to do as much investigation as they possibly could around the circumstances. For example, if the individual provides a doctors fit note, HMRC advises that that should be accepted as conclusive proof of incapacity for SSP purposes, even if there is very strong evidence to the contrary. The employer might need to get their own medical advice or to ask HMRC to arrange for the employee to be examined by the medical services team. Clearly that only works in the case of a health condition that is likely to be ongoing.

It might be possible to ask, for example, a GP who has provided a backdated sick note when their consultation with the individual was and providing evidence timing that the employee has been covering up them being perfectly well on the days in question. Evidence as to their activity from social media may also be relevant, eg. photographs of the employee swanning around Spain when the employee told the employer they were in bed and that they were so unwell that they couldn’t get up.

Anna Denton-Jones
Refreshing Law

 

Categories
Anna Denton-Jones Disability Employment Law Employment Rights Act 1996 Equality Act 2010

Disability cases — Being able to defend them

Royal Courts of Justice, London

A recent case involving HMRC illustrated some key messages for me about defending a disability case.

In McAllister v Revenue and Customs Commissioners, the employee worked for HMRC for 7 years. He suffered from anxiety and depression and was off work for long periods of time, although some of these absences were not related to his mental health issues. In the last 24 months of employment he had been off for 245 days over 23 different occasions. At the time of dismissal, he had been off for 7 months straight. Often employers want to know “are we in safe territory to dismiss?”. With numbers like that, I’d be saying “why are you still employing?”.

The employer concluded that that level and regularity of absence impacted on productivity and staff morale (all reasonable adjustments had been exhausted). It therefore decided to dismiss. The employee would ordinarily have been entitled to a payment under the Civil Service Compensation Scheme, but the amount paid to him was reduced by 50% because they were penalising certain behaviour. That behaviour included failure to answer calls, delaying returning relevant forms, displaying disruptive behaviour and turning up late during a phased return to work.

Unsurprisingly, the employee appealed the penalty and his award was increased to 80%. He also claimed discrimination arising from disability under S.15 of the Equality Act 2010 in relation to his dismissal and the reduction of the payment.

The employer agreed the employee was disabled – this is not worth challenging unless there is real doubt over the employee qualifying as disabled. The employer is better off focussing on the lack of discrimination.

In such a case the narrative the employer is looking to tell the Tribunal is basically that “yes the person is disabled, look at all the things we did to look after him and level the playing field (reasonable adjustments). Unfortunately, the level of absence got so bad it followed this pattern – look how much time the employee was taking off and how frequently (see the figures above). We tried to manage it, and this is the advice we got from occupational health and this is what we did but it made no difference”.

Where you can evidence that for the Tribunal, it is then likely to find, as here, that the dismissal was a proportionate means of achieving the employer’s aim of ensuring that staff were capable of demonstrating satisfactory attendance and a good standard of attendance, which also comprised the aims of the maintenance of a fair, effective and transparent sickness management regime, and the efficient use of resources. The Tribunal had found that M’s absence had a very real impact on HMRC’s use of resources, in particular, on time management and staff morale.

If you think about the compensation scheme, it is a benefit – to get a disability claim off the ground you have to be able to show an act of unfavourable treatment – here the employee failed to do so as follows: the relevant treatment was the payment to the employee, the object of which was to compensate the jobholder for loss of employment that is beyond his or her control. That was made because of dismissal due to disability-related absence and disability was behind that. However, being treated as entitled to a payment– was not unfavourable treatment; if anything, it was more favourable than it would have been if the employee had been dismissed for a reason other than his disability. This shows it is key to fighting cases to really drill down into the specific wording of the law – just because someone feels aggrieved about something doesn’t mean they will get themselves through that successfully.

Anna Denton-Jones
Refreshing Law

Categories
Anna Denton-Jones Constructive Dismissal Employment Contract Employment Law Employment Rights Act 1996 Video

Video | Constructive dismissal and side hustles

YouTube video playing on a phone

Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the issues raised by a recent case involving somebody with anxiety that was triggered by outside of work things but was impacting upon their employer.

Anna Denton-Jones
Refreshing Law