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
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
Imagine the scenario: you have commenced redundancy consultation with an employee or just had a difficult conversation with them about their performance not being up to scratch and offered them a package to leave to avoid the pain of going through a lengthy capability process. You think you know what the likely outcome will be and they can be quite a difficult person so you don’t want them around bad-mouthing you but how do you handle it?
It’s easy when someone has potentially committed an act of gross misconduct and it is being investigated: we have the mechanism of suspension and provided you have reserved the contractual right to suspend, an employer is justified in doing so for a short period of time.
Where you have commenced redundancy consultation, maybe made an initial announcement and are waiting to obtain the employee’s feedback on proposals, it undermines the redundancy process to place the employee on ‘garden leave’ or to prevent them from being in work, indeed the employee will scream ‘prejudgement’. Besides, ‘garden leave’ as a concept really kicks in when notice has been given and you are ahead of that.
In these circumstances, I often suggest that you tell the employee something like “I appreciate that this meeting has come as a bit of a shock so we won’t expect you to continue working this afternoon; why don’t you go home and prepare for our next meeting which will be on Monday”. That way you aren’t suspending the employee or placing them on garden leave, you are just offering them the ability to not come in by agreement.
But what if the employee insists on coming in and is disruptive, going around telling people in the open-plan office about confidential conversations? There is nothing wrong with taking this person to one side, reiterating the confidential nature of your conversations and explaining if that isn’t respected then disciplinary action would follow.
You do have to be careful though. In a 2006 case of Okiwu and Ukwaju v British Refugee Council where the redundancy process being followed was tainted by race discrimination, this sort of action was victimisation. The tribunal found that the reason for taking action was not that the employee had discussed confidential matters in an open-plan environment, letting everyone overhear her on the phone to her legal advisers, being vocal about bringing a claim, but that she had vocalised her dissatisfaction at the way her dismissal was handled, which in essence was a complaint of race discrimination. Making such an allegation was a protected act and so the tribunal concluded that she had been victimised.
Where you have had a protected conversation under s111A Employment Rights Act 1996 with a view to the employee being offered a settlement agreement to leave rather than undergo the performance management process, generally speaking the employee cannot then refer to that conversation in any claim for unfair dismissal. However, if the protected conversation has included “improper behaviour” a Tribunal is likely to find that the employer has lost that protection. I would argue that sending an employee home, removing them from the workplace is such a prejudicial act that it undermines the guidance from Acas that employees should have 10 calendar days to consider any offer being made. Certainly taking they keys from them and making them clear their desks making it clear that you have no intention of them coming back, puts the employee under such a lot of psychological pressure that a tribunal could find it was “improper”. The same would be true of removing computer access rights or blocking emails.
So it may be better to just grin and bear the situation for a few days, painful though it is. That said, I have known disgruntled employees damage an employer’s computer system so if you have any concerns about these sorts of issues do the right thing for the organisation from a commercial perspective and worry about the law later!
Anna Denton-Jones
Refreshing Law
Workers have the statutory right to reasonably request to be accompanied at a disciplinary or grievance hearing.
The first thing to note is that your meeting needs to be one at which some kind of disciplinary outcome will be arrived at or decision made as to whether a grievance is upheld – there is no right to be accompanied at investigation stages in the process although many employers go above and beyond their duties and allow it.
The request should relate to being accompanied either by a colleague or a trade union representative. Generally speaking there is no right to bring along your lawyer or your mother!
For a long time we’ve advised people that the word ‘reasonably’ used in the legislation gives you some wriggle room: if the employee was asking to be accompanied by a colleague who is also under investigation there could be a conflict of interests with them trying to ‘cook up a story’ together or that if the employee was asking for someone from your farthest flung location to come it might be unreasonable when there were various colleagues onsite and available.
However recent case law changes all this. The Employment Appeal Tribunal had to decide if the employer can decide the person chosen is unreasonable and reject the worker’s choice.
In the case of Toal v GB Oils, the workers wanted to be accompanied by a particular trade union official which the employer refused, instead allowing them to bring a different one.
The Employment Appeal Tribunal rejected the employer’s argument that the word ‘reasonably’ in the legislation applies to the choice of companion as well as to the request to be accompanied.
This was despite the ACAS Code guidance that ‘it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing’. The EAT pointed out that the Code cannot help in the construction of the law, which is a role purely for the courts.
So now as long as the chosen companion comes within one of the permitted categories, then there can be no interference with the worker’s choice and employers interfere with that choice at their peril.
Anna Denton-Jones
Refreshing Law
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