Refreshing Law
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
The President of the Employment Tribunals in the UK, Barry Clarke, has issued Presidential Guidance on 7 July 2023 about Alternative Dispute Resolution.
The Guidance acknowledges that the whole Employment Tribunal process has a cost, whether that is for society in terms of running the judicial side of things or for the participants in terms of time, emotional energy, legal costs, damage to reputation and disruption. It acknowledges that whatever the dispute, the Employment Tribunal process involves risk for those involved, both financial, emotional and reputational. In cases where an outcome is fairly clear, the Tribunal’s approach to remedy, when it comes to compensation, can’t be predicted with certainty until the Tribunal has evaluated all of the evidence. Inevitably, alongside the question of whether a claim will succeed, there is always a discussion about what it is worth and in some cases, particularly arrears of pay cases, the costs of arguing about a case can totally outweigh the sums involved.
The Guidance goes onto acknowledge that every time a case is resolved by agreement, in some shape or form, that that is minimising those different types of cost and risk involved. There is an advantage to everybody of being able to move forward if a resolution is reached. From his perspective, resolution of cases also frees resources to be devoted to other cases. You may not know this but when they are listing, the Tribunals routinely put more cases in the diary than there are actually Judges available to hear them, working on an assumption that a high proportion will be resolved.
In terms of settlement options, generally we are talking about conciliation through Acas but also things like Settlement Agreements.
The Guidance emphasises that of course the Tribunal system will decide a case where the parties cannot reach agreement, but the system is going to encourage them to resolve their case by agreement, wherever possible, and this is the focus of the Guidance.
There are four different approaches. This Blog will focus on the three that people are less familiar with: Judicial Mediation, Judicial Assessment and a Dispute Resolution Appointment.
Judicial Mediation is a consensual (meaning the parties have agreed to participate), confidential (without prejudice – so that any concessions made in the meeting will not be used in Tribunal if the process fails) and facilitative (means the Judge is there to facilitate a settlement, not to give any views on the merits of the case in front of them or prospects of success). It is used in cases that are listed for 3 days or more, so complex things like discrimination and whistleblowing cases. This process can be useful early doors before costs have been incurred and usually takes place over a day. If agreement is reached, it falls into the Acas COT3 process to wrap it up. Any Judge that has been involved would not then be involved in a Hearing if the case does reach a hearing. Success rates are said to be 65-70%.
Judicial Assessment is consensual, confidential and evaluative (evaluative is where the Judge evaluates the respective prospects of success and possible outcomes in terms of remedy whilst remaining impartial). The Judge is able to give an opinion. If the parties don’t accept what is being said, it can certainly assist them to understand the issues at stake and to clarify and narrow the things that are requiring adjudication moving forward so that in itself can be useful to reduce the number of days hearing that is necessary. Again, the Judge that was involved would not be involved in a Final Merits Hearing.
A Dispute Resolution Appointment. This is the new bit – it is non-consensual, confidential and evaluative. It is aimed at cases listed for 6 days or more (more complex claims). A Judge can require the appointment.
Such an appointment can be proactively used where the type of case means that there is going to be a lot of time and effort put into case management, correspondence with the Tribunal or where long hearings are going to contribute to waiting times. These are going to be used where long hearings would be out of proportion with, for example, the fact that the parties are still in an employment relationship or where the likely award would be in respect of injury to feelings only. Such an appointment might also be used if judicial mediation has failed.
Whilst these sorts of cases may settle nearer a hearing time, that in itself, clogs up the system. Effectively, the Tribunal is intervening and requiring the parties to come together to discuss the issues in the case. They can’t of course mandate an outcome from the appointment but they can force minds.
This is usually a 2 or 3 hour hearing which will give an evaluation of prospects of success and possible outcomes whilst remaining impartial. In order to be able to do this effectively, this will take place after the witness statements, so unlike Judicial Mediation, for example, the Judge will have a copy of the relevant paperwork. Again, this is done with a view to the parties really understanding what the case is about and what is at stake, narrowing the issues requiring adjudication and resulting in a shorter more focused final hearing.
Like any change or processes that they are not familiar with, people naturally shy away from trying these things. As a trained mediator, I am of course a big advocate of Alternative Dispute Resolution, particularly because outcomes can be agreed which the Tribunal wouldn’t otherwise be able to order, such as agreed references or apologies.
I took part in a Judicial Mediation last year where I was acting for the Claimant in a high value claim and there were real advantages: the Claimant was able to participate in the comfort of her own home and was not put to the stress and anxiety of travelling to and appearing in a Court environment, the matter was resolved 6 months earlier than it otherwise would have been, again saving a lot of stress and anxiety and she received a sum that she would have been likely to receive had the matter gone to Tribunal. The employer saved themselves 6 months of hassle and all the work in preparing the case.
The next time you are dealing with a difficult dispute, maybe you should give one of these a whirl.
Anna Denton-Jones
Refreshing Law
More and more organisations are sponsoring employees from an immigration perspective, which means those that are working in HR are having to be more familiar with the duties that they have to report to the Home Office in respect of the staff. This means that the issue of immigration isn’t just something that we deal with on recruitment, it means that throughout the life cycle of the employment relationship, we need to be thinking, in any situation, about the sponsorship implications.
Delays to the commencement of work is something that will have to be notified – the reason for the delay. Illness, bereavement and travel disruption will all be legitimate reasons, as will working out notice with a previous employer but essentially, the Home Office want to know if there is any delay. There is a sensible reason for this (making sure the person does come here and start work and does not abscond).
Absences from work, whether that is for maternity or paternity leave, sick leave or strike action, is another notifiable event.
Any changes made to the role, which will include promotion, changing job title or reduction in salary, is something that needs to be reported. This will cover formal promotions but it can also cover less formal changes in core duties, so line management need to be aware that they can’t just make changes without there being implications.
A change of work location to a different site or working from a customer’s premises and working remotely from home on a permanent or full-time basis will all be things that need to be notified, which is another reason why employees should not be given carte blanche to work from anywhere and there are sponsorship angles to your hybrid policies.
You also have reporting obligations if there is any ending to the relationship or the employee is absent without leave for 4 weeks in total during a calendar year.
These changes have to be notified within 10 days so you don’t have a great deal of time to act.
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 a case she read about recently which relates to an issue that she does see cropping up from time to time around what has been offered at interview and in the initial offer letter versus what is in the contractual documentation later on.
Anna Denton-Jones
Refreshing Law
The most common query I have to deal with relates to holiday calculation and notice/payment-in-lieu of notice.
I’ll set out an example to illustrate:
Today is 15 May 2023. An employee gives their notice of 1 month today, so their employment would end on 15 June 2023. Their holiday will be calculated to 15 June 2023.
However, if the employer decides they don’t want them to work out their notice and agrees instead to make a payment in lieu of (instead of) notice then the end of employment will be 15 May 2023. Holiday will be calculated to today’s date. The employee will be paid 1 months’ salary and benefits including any holiday to today’s date in their final pay.
Anna Denton-Jones
Refreshing Law
All businesses have a duty of care to their employees and safeguarding their mental health is a fundamental part of this. April is National Stress Awareness Month and a time to reflect on the negative impact of stress in the workplace.
We all know that stress is one of the most common causes of long-term work absence in the UK but how much do HR professionals understand about the impact that trauma can have as a contributory factor to stress and work burnout?
It’s important to understand what psychological trauma is and how it can have a significant impact on an individual’s mental and physical health. Trauma-informed care is an approach that recognises the impact of trauma on individuals and seeks to create a safe and supportive environment for healing.
So how can HR take a trauma-informed approach to supporting employees through work stress and burnout?
Create a safe and supportive environment
Creating a safe and supportive environment is an essential part of a trauma-informed approach. This includes:
Offer resources and support
HR can offer resources and support to help employees manage their work stress and prevent burnout. This may include:
In summary, taking a trauma-informed approach to supporting employees through work stress and burnout is essential for promoting employee wellbeing and preventing burnout.
HR can create a safe and supportive environment, offer resources and support, and empower employees to take control of their work environment. By doing so, HR can help employees manage stress and prevent burnout, leading to a more productive and healthier workforce.
If you would like to learn more about becoming a trauma-informed organisation, you can find further information on the Platfform Wellbeing website.
Platfform Wellbeing
Platfform Wellbeing is a commercial training, workplace wellbeing and counselling service aimed at organisations across the private, public and third sector. It offers kind, compassionate responses at times of distress and supporting organisations with creating cultures and teams than enable people to thrive. We are part of Platfform, a mental health and social change charity.
Anyone who takes on the role of investigating officer, whether it’s into grievances raised by employees or disciplinary matters, should read Adam Tolley KC’s investigation report produced for the Prime Minister, because it is a master class in how the findings of an investigation ought to be presented.
Firstly, he sets out what his terms of reference were, which is particularly important for those who are appointed externally by an organisation – often when I am acting for the employee, I ask about terms of reference and am shocked by how often organisations have not set out the scope of an investigation. Also, if data is being shared with a third party as part of the investigation, then the Data Protection implications of this needs to be addressed somewhere?
The Report commences by setting out the relevant policies and what they say. Obviously as a bullying investigation, the definition of bullying is set out. In this particular example, he has referred to case law reports within the civil service, but an employer is likely to have a policy setting out what they regard as bullying or if they don’t then there is always the ACAS definition to be referred to.
The Report describes the methodology followed. Tolley goes to lengths to explain the submissions made by Dominic Raab, both verbally and in writing and addresses his representations and how he has factored in those things to his decision-making process. For example, representations about complaints not having been made contemporaneously with events some years down the line or the availability of direct documentary evidence. When you read the explanation as to his thought process, you are able to understand that he has weighed up considerations and to understand decisions he has made along the way. This has the benefit of being transparent, reassuring the employee, in our case, who is at the centre of the investigation, that things have been dealt with fairly. Reports that lack this level of detail are often criticised by the subject, as it will appear that certain things have not been taken into account when actually they might have been.
Adam Tolley also goes into the background first with a detailed description of the Deputy Prime Minister’s working style. The advantage of setting out this background is that not only does it give another opportunity to show fairness and balance, it is useful for anyone reading the report outside of an organisation to understand the context. This will be potentially important if there is an appeal to be dealt with or, in our case, an Employment Tribunal.
The Report is forensic in that it breaks down complaints or allegations into constituent parts and addresses each element in turn. In taking that approach, he is able to sift through those items for which there is evidence and items where there is not, and that gives you a feeling of balance in that he has acted fairly, only finding fault where there is evidence to suggest there was, for example, when it comes to physical gestures like table slamming and shouting and swearing, Dominic Raab was not found to have acted inappropriately. It also enables us to see that each aspect has been covered.
The Report looks at the history – in a disciplinary context, this might be previous disciplinary warnings or whether any informal meetings have ever been held about conduct previously. Here there were certain communications which sought to alert the Deputy Prime Minister to the existence of an issue with his behaviour but those communications did not use the word ‘bullying’.
Where he talks about witnesses, Tolley shows his thinking in terms of the reliability of those witnesses and whether or not they may have had any motive to complain – this is often useful in a Report to articulate why, for example, a particular witness should be believed or not. In this particular case, there is a discussion around so called “snowflake” reactions and the resilience levels that can be expected from civil servants. You would expect any investigating officer to be able to talk about the extent to which they felt witnesses were acting in good faith and in bullying cases in particular, perhaps commentary on the impact the experience had on their health. Adam Tolley recognised the impacts communicated to him were genuinely experienced and this will be the case where we are not focused on the intention of a protagonist but rather the impact that behaviour has had (harassment cases for example).
The Report discusses confidentiality and how that has been addressed and its relevance to the findings in the Report. This is particularly important if the identity of individuals is going to be protected, for example, in harassment cases. In the Tolley Report, because he knew it was going to be published to the public, he has had to work hard to protect the confidentiality of individuals (only two people are named, with their consent) and that has resulted in some detail being omitted and kept between him and the Prime Minister. That would obviously differ in an employment context where the detail and the information would be included in the Report and it’s appendices, although occasionally a decision may be taken to anonymise witness statements and to omit details which would betray the identity of the witnesses.
We can all learn from this example, quite apart from the debate around what is or isn’t bullying. A link to the actual report can be found in the following link:
Anna Denton-Jones
Refreshing Law
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
From time to time you may send out a letter offering an employee, via a protected conversation, a settlement package. In a case called Meaker v Cyxtera Technology UK Ltd, the employee, in receipt of such a letter marked “without prejudice” believed that that letter constituted an effective dismissal. This is because the letter set out the particular date the employer was proposing that he would leave, the different payments he would get and when. He argued that this was a sufficiently clear letter to be a dismissal when it came to bringing an unfair dismissal claim under the Employment Rights Act 1996.
The relevance of this in the Employment Tribunal was whether he had brought his claim in time. If the “without prejudice” letter did, as he said, constitute a dismissal then his claim was going to be out of time. Alternatively, if the date of dismissal was the date on which he received payment in lieu of notice and holiday payment, then his claim was going to be in time.
The Tribunal agreed that the “without prejudice” letter was an effective letter of dismissal but the employee appealed. The Employment Appeal Tribunal agreed that that letter created a clear decision to dismiss, even though it was marked “without prejudice” and enclosed a draft Settlement Agreement, without terms providing for a mutual termination not having, in fact, been agreed. In effect, both the Tribunals viewed the letter as terminating the employee’s contract unilaterally.
As always the background facts were case specific – the employee had hurt his back and couldn’t do his job but wasn’t so severely affected that he met the test for income protection to kick in. There had been numerous discussions about what to do next. The employer sent the offer letter and draft settlement following a discussion with HR and actually processed the payment in lieu of notice even though agreement had not been reached.
The first moral of the story is never ever make payments in connection with a settlement agreement until it is all sorted!
This case has, however, given me reason to go back and review the standard kind of offer letter that I see on a regular basis: where the employers will state a termination date for example, the payment in lieu of notice that might be made, payment in lieu of holiday that might be made and an ex gratia payment that might be given in addition to things like reference and other benefits like outplacement counselling.
Employers run the risk that these letters can be seen as dismissal letters (any employee who has ever been on the receiving end of such an offer letter will tell you that they feel that it’s such a strong signal from the employer that the relationship is over and that they could not in fact continue). Is it worth drafting them in a different way to account for this risk? For example, instead of setting out a termination date, you may suggest to the employee that a leaving date would be agreed when the terms of a settlement agreement are agreed – this leaves it uncertain.
Secondly, the employer may wish to clarify that in no way should the employee take receipt of the letter as indicating any intention to bring their employment to an end.
You might also decide to say that holiday pay is something that would have to be agreed once the parties have discussed what the accrued holiday actually is.
Alternatively, you need to be aware that every time you do provide such an offer letter that it is open to the employee to argue that it brings an end to their employment, despite the fact that it is marked “without prejudice” and probably subject to a protected conversation.
Anna Denton-Jones
Refreshing Law
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
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