Category: Employment Rights Act 1996

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Anna Denton-Jones Communication Employment Contract Employment Law Employment Rights Act 1996 Overtime Right to Work

The right to disconnect — Tread carefully

View of the City of London at sunset

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:

  1. The sheer volume of emails being sent. From employees being copied in on emails that they don’t need to be, to having email conversations with colleagues when actually a quick phone call would be much more efficient, those emails where people won’t let go of the conversation and so send another email…. The list goes on.
  2. Remembering email is just a tool – it is how we use it for good or ill that counts. What I am noticing is that the pandemic seems to have put everybody to a state of ‘high alert’ where everything is urgent and everybody expects a response now and timelines have become unmanageable and isn’t it that that is the issue rather than being connected?

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

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Anna Denton-Jones Dispute Management Employment Law Employment Rights Act 1996 Employment Tribunal Grievance Investigations Victimisation

Dangers of a victimisation claim

Royal Courts of Justice, London

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

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

The requirement for diversity training

Royal Courts of Justice, London

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

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

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

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

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

Anna Denton-Jones
Refreshing Law

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

Guest Blog | The Menopause — Why should organisations bother?

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Katie Day is a Director at RDP International Ltd

Policies and guidelines around mental health are in place.

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

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

The menopause.

Ah.

Not so good there then!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Katie Day

Director

RDP International Ltd

katie@rdp-int.com

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

www.rdp-int.com

Join the conversation:

LinkedIn:        Midlife Matters Group

Twitter:           @Midlife_Matters

Facebook:        Midlife Matters

  1. Kleinman NL, et al. (2013)

Direct and indirect costs of women diagnosed with menopause symptoms

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

  1. Griffiths A, et al. (2013)

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

Maturitas 76 (2013): 155– 159

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

Reported in below:

Okill A (2017)

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

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

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

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

Does an employer have to disclose the investigation report?

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

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

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

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

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

Anna Denton-Jones
Refreshing Law

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

Can you withhold sick pay for staff with sporting injuries?

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

The London Marathon this week got me thinking about this.

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

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

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

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

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

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

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Articles Compensation Employment Law Employment Rights Act 1996 HR Pay TUPE

Post-TUPE transfer — P45 issues

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One of the niggly little issues that often arises when there is a TUPE transfer is around the issuing of P45s (or not) to those staff whose employment has transferred.  Often the transferor, who has just seen a group of employees depart, or their payroll provider will insist that they are going to issue P45s to the staff. This is the wrong approach and just upsets people.

There are two approaches to take depending on the circumstances. One is for the new employer to just provide HMRC with a spreadsheet of the information that would otherwise have been on the P45s, the other is to argue there has been a succession – which route is right will depend on eg:- whether the employees are being subsumed into a much larger payroll or whether just part of an employer’s employees are transferring.

The succession route is deal with in  the PAYE regulations Income Tax (Pay As You Earn) Regulations 2003 (SI 2003/2682) where Regulation 102 provides that the transfer of a business is deemed to make the transferee or employer who has inherited the employees a successor business. No-one’s employment has ended, so no P45s should be issued.

Under Regulation 102(8) the Transferor has to give the Transferee ‘any particulars’ needed for them to continue processing payroll. Often, if there is a formal document dealing with a transaction, there may also be contractual promises that, for example, the seller of part of a business has made agreeing that they will make available such National Insurance and PAYE records as are necessary for the buyer.

Given that this is quite an esoteric area, if this issue arises it may well be a simple explanation to the Transferor is all it takes to get their co-operation to provide the information that you need and to prevent them from erroneously issuing P45s.

Anna Denton-Jones
Refreshing Law

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Alternative Dispute Resolution Anna Denton-Jones Communication Confidentiality Conflict Disciplinary Disclosure Dispute Management Duty of Care Employment Law Employment Rights Act 1996 Grievance HR Investigations Privacy Procedural Fairness

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