Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing ‘right to work checks’ and clarifying the position for employers in respect of what they should and shouldn’t be doing in respect of these checks.
Anna Denton-Jones
Refreshing Law
So imagine you’ve just suspended an employee and packed them off with their letter setting out the terms of their suspension. You now need to address their reporting lines and it can be tempting to write an email to staff perhaps even telling them that their colleague has been suspended. I currently have an Employment Tribunal file on my desk where the communication to colleagues that took place immediately following suspension is something that the employee has leapt on in order to claim that minds were made up, his dismissal was entirely pre-judged from the moment of suspension and that trust and confidence would have been broken at that point in time.
I suggest instead that you speak to employees. The reason that I am suggesting speaking to colleagues is that you will not then have paperwork which will form part of any data protection subject access request when it is inevitably made.
When you speak to the colleagues you should inform them that their line management is temporarily changing and explain who they are now reporting to and, if they are required to take on some of the suspended employee’s duties, state this fact. You would reference the suspended employee as being temporarily absent from work. Curious colleagues are bound to ask why but I would just say that this is “confidential”. You can always bat it back to the colleagues by saying that if it were the other way around, they would want confidentiality to be protected and when most people think about it like that, they can understand.
You may be worried about the suspended employee trying to affect the investigation in some way by speaking to their colleagues. If that is the case there is nothing wrong with you, when you have this conversation, explaining to employees that there is nothing wrong with them having purely social contact with their absent colleague but they should not be discussing work with them.
It is entirely possible that the suspended employee themselves will tell all and sundry that they are being suspended and they are being investigated. If that is the case and people are querying the position, then you are free to confirm that you would have preferred to keep the matter confidential but now that they employee has explained to them, that yes there is an investigation and they are duty bound to co-operate with that investigation if they are called to do so. I wouldn’t go into any details about what the investigation is about.
In general, I would leave it to the investigator to plan out how they are going to conduct their investigation, who they are going to speak to and to brief any witnesses in terms of issues around co-operation with the investigation, confidentiality, the fact that the suspended employee may well get to see an investigation report etc.
Anna Denton-Jones
Refreshing Law
Last year the World Health Organisation recognised “burnout” for the first time in its classification of diseases. It defines “burnout” as “mental or physical exhaustion caused by excessive or prolonged stress and a syndrome resulting from chronic workplace stress that has not been successfully managed”. It highlights the three characteristics:
For many people who were reading that definition they would be saying yes or would be ticking off the criterion, due to the pandemic, with the stresses and strains of the last year or so only adding to the problem.
Stress is normally a short lived thing or tied to a specific goal so is not harmful. If the stress feels never ending and comes with feelings of emptiness, apathy and hopelessness, it may be indicative of burnout.
A recent case involving a firm of solicitors that has been litigated through the Courts highlights the risk of employers not taking this issue seriously. In this particular case, the employee concerned was a high flyer – for a period of around 5 years he had been one of the most high billing or income generating fee earners at the law practice, being in a leadership position, in charge of one of the firm’s offices. Criticisms levelled at the employer included, failing to reduce his working hours or ensuring that he was taking his annual leave. He had been dedicating 15 hours a day to work and the employer faced criticism for not having picked up on that and done something about it.
It seems that when the condition began to manifest including the employee acting out a character and making an inappropriate joke which was then used as a disciplinary matter, the firm failed to put in place a structured plan for offering support. In particular, when the employee had 7 weeks’ ill-health, they didn’t take any steps to find out about the extent of his condition. If they had done so, they may have been more aware of his fragility and the problem that they were dealing with.
In particular, at the point at which he has tipped over into “burnout”, the firm had a duty to put their minds to how they could prevent the risk to his health that his job was causing. The problem is that the firm took the perhaps “usual” reaction of getting him to relinquish his management position. Indeed it was found that one witness had said that he should “drop back into midfield” and leave the captaincy to somebody else. The Judge in the case found that that was grossly insensitive. Of course the firm might have had genuine concerns over the impact on colleagues but there wasn’t really any meaningful communication around the issue or understanding of the workload issues or what was necessary.
These sorts of cases are going to be particularly relevant given all the evidence about people working from home, working greater hours, juggling all the other stresses that come with a pandemic and inadequacies in many cases of employers to be prepared to deal with these sorts of issues.
So what things can an employer be doing to prevent “burnout”?
If the medical condition the employee is suffering from becomes a long term thing then it could become a disability which is protected by the Equality Act, in which case the duty to make reasonable adjustments is going to apply. Where an employer has not tackled the issue early enough, if the employee goes through periods of absence and return to work with little changing, you can see how a pattern could be established that leads into disability territory.
In the particular case involved, the employer was potentially liable for the employees losses that resulted from his employment relationship coming to an end and not tackling the issue effectively.
Anna Denton-Jones
Refreshing Law
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
Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing ‘working from home and ill health’ and the potential impact on individuals and businesses.
Anna Denton-Jones
Refreshing Law
At the moment, we are in something called the “grace period”. New rules are going to come into force from 1 July 2021. Up until that point an employer is allowed to continue to rely on the checks to an EEA or Swiss National’s EU Passport or National Identity Card to evidence their right to work in the UK ie:- not differentiating between those who arrived before we left the European Union or after.
Provided the check is done and the employer doesn’t have any reason to believe that the employee doesn’t have the right to work here, they will have a statutory excuse against the civil fines that can be applied if an employee is subsequently found to be working here illegally (£20,000).
If the EU National has already registered for and achieved Settled Status in the UK under the EU Settlement Scheme where if they have been here for 5 years they qualify, they can evidence their right to work to you, using the Home Office online service (www.gov.uk/view-right-to-work). Not everybody will have taken those steps yet, so in the meantime, old fashioned paperwork can apply.
If the EU National has not achieved Settled Status or obtained pre-Settled Status (which applies to those who haven’t yet been here for 5 years) by the 1 July 2021 they will no longer be entitled to work in the UK from that date, unless they are an Irish National (separate rules apply to those from Ireland who are entitled to work here). Thus employers will need to see evidence of that Settled Status or Pre-Settled Status from 1 July 2021.
Further guidance is expected to be issued for employers in relation to this issue nearer that time.
Anna Denton-Jones
Refreshing Law
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
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
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
Often employees will refuse to attend Occupational Health or to provide consent for the employer to write to their GP. Sometimes they believe that this is a delaying tactic, sometimes they probably know that they won’t like the outcome or the information that will be provided, but where does this leave the employer?
If you’re writing to a GP or consultant who is responsible for the care of their patient, in the absence of the employee’s consent in relation to the Access To Medical Reports Act 1988, then the employer is stuck and unable to obtain information from that physician. Sometimes employees don’t realise that in the absence of their co-operation, you will still be entitled to make decisions, for example about whether or not they are capable of performing the duties you engaged them to do. In such a scenario sometimes by explaining to an employee that you will have to make decisions about them in a vacuum, given that they won’t consent, they change their mind and agree to your request. An alternative for the employer in this scenario is to actually require the employee to attend an Occupational Health physician as, strictly speaking, the Access To Medical Reports Act won’t apply where the employer is asking for a one-off report because that medic will not have been (or be) responsible for the individual’s clinical care. If the employee attends an appointment with such a doctor then they will have implicitly consented to disclosure to the employer of any report resulting from that examination. (Kapadia -v- London Borough of Lambeth [2000])
In order to protect themselves, employers will often include a clause in their contract of employment that requires an employee to co-operate and attend a medic where the employer wishes for a report to be written. Technically, an employee’s failure to comply with a reasonable instruction in this regard would be a disciplinary matter. Unfortunately for the employer, failing to follow this reasonable instruction is unlikely to form grounds for dismissal as opposed to other disciplinary action such as a warning. Even if there had been prior warnings in this regard, an employer is going to have to show that dismissal for failure to co-operate is within the band of reasonable responses as well as following a fair procedure in respect of the disciplinary in order to avoid any unfair dismissal claims. Thus it would become central to such a case to know why the individual was refusing to co-operate and whether or not that was reasonable.
It is probably going to be safer for an employer, instead of going down the disciplinary route, to consider dismissal for incapacity. If the employer has done all it reasonably can to obtain medical evidence and the individual continues to withhold consent, a decision to dismiss may well be within the range of reasonable responses (Elmbridge Housing Trust -v- O’Donoghue [2004])
When it comes to looking at fairness in such cases, the fact that the employer had an express contractual term will be useful. It will also have been useful to have warned the employee what the consequences of failing to co-operate may be.
In obtaining an employee’s co-operation it may also be useful to explain to them that, if they are concerned about the contents of a report, they can provide limited consent. For example, an employee might be worried about revealing information about past illnesses that are not relevant to their current condition. The employer might, in these sorts of cases, agree to limit information to a certain time period or to confine reporting to the extent to which the employee is able to do their job.
Whilst it might be frustrating to have employees who won’t co-operate, being patient, making a number of attempts to obtain information and persuade the employee before making decisions in the absence of medical advice, and generally acting in a reasonable manner, is likely to put you in a favourable light.
Anna Denton-Jones
Refreshing Law
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