Monday 16^th January 2023 (and the third Monday of each January every year), has been declared “Blue Monday” as it is classed as the most depressing day of the year. The date was calculated using a combination of factors such as debt level, post-Christmas blues, low motivational levels and the gloomy weather conditions.

Blue Monday could have the potential to have a negative impact on employees. For example, it could lead to a lower morale in the workplace, and employees may find it harder to concentrate, juggle tasks and/or stay focused if they are feeling low.

In order to boost staff morale during this time and keep employees feeling upbeat, motivated and valued, employers could:

• Keep employees updated on what contributions they are making to the organisation or company’s performance;
• Celebrate and share employees’ achievements with others;
• Provide achievable demands and goals with regards to agreed hours and workloads;
• Give employees clear instructions as to what is expected of them and what their responsibilities are in the workplace;
• Plan a workplace event for employees to look forward for, such as a dress down day, start a competition that everyone can get involved in or organise a selection of afternoon treats to keep motivation and energy levels high; and
• Finally, celebrate work anniversaries; so that employees feel appreciated for their years of service.

A recent survey by Sage has found that many HR professionals view the term ‘human resources’ as outdated. Around three quarters of the respondents agreed that the term no longer accurately represents the nature of their role and a more accurate description would be ‘People and Culture’. Eszter Lanto’s (Head of People at TCC Global) view is that people should be viewed as individuals with their own challenges and values as opposed to only resources.

The survey also found that the majority of respondents agreed that over the past five years the role of a HR professional has changed dramatically, with a third envisioning that it will continue to evolve in the next 5 years to come.

In a recent case, an employer had agreed to pay a compensatory lump sum under a settlement agreement to an employee, subject to the employee agreeing to waive any other claims and enter into certain confidentiality and non-disclosure obligations.

As the lump sum was received in connection with the termination of the employee’s employment the employer deducted tax from the sum. The Employee argued, however, that the sum was wholly in consideration of them agreeing to be bound by the obligations and had no connection with their termination.

The First-tier Tribunal held that as the compensation sum was consideration for the employee entering into the obligations in the settlement agreement then it was payment for a restrictive undertaking and, therefore, taxable as employment income.

Of the 1.3 million people employed by the NHS, one fifth of that workforce are women aged between 45 and 54. This means that up to one fifth of that workforce could be experiencing menopausal symptoms. Under new guidance, NHS staff going through the menopause can consider flexible working as one of the measures to help them cope with their symptoms.

Launching the first national NHS guidance on menopause Amanda Pritchard (NHS England Chief Executive) highlights the importance of destigmatising the taboo associated with talking openly about menopause.

The guidance includes advice on HR aspects such as how to record menopause related absences together with suggestions to line managers and leaders on how they can create an open environment for having regular health and wellbeing conversations with their team and how they can implement reasonable adjustments to support menopausal employees

Randstad’s recent report on gender equality in the workplace found that of the 6,000 UK workers surveyed nearly three quarters of women in the construction, health care, education and technology sectors have encountered inappropriate comments by male colleagues or they have witnessed comments of inappropriate behaviour.

Further, nearly 10% said that because of their gender they felt they had been offered a less important role in the workplace and, in terms of career advancement, 7% reported that due to perceived gender discrimination they had been passed over for promotions. In fact, only around 18% of those surveyed had never experienced some form of gender discrimination.

The majority of women across all the sectors also reported feeling that not enough was being done by employers in order to support female employees during menopause. The report therefore makes recommendations on how to ensure the recruitment process and employee lifecycle is inclusive of the different groups of people who make up the workforce, for example by helping with childcare costs and adopting blind applications.

New guidance has been published by ACAS for employers regarding how to deal with staff suspension in the workplace.

Acas recommends that employers should only use suspension as a last resort, such as when an investigation is being carried out and suspension is necessary for the protection of evidence, the business, and/or witnesses. The new guidance suggests the following as alternatives for suspension;

• Working from home or changing sites or shifts,
• Separating the employee from customers or allowing them to work with different customers,
• Restricting use of certain tools, systems or prohibiting work on specific tasks.

In order to support a suspended worker’s mental health, ACAS suggests that Employers:

• maintain holiday and pay during suspension,
• explain the reasons for an employee’s suspension,
• specifying that it does not mean that a decision has been made as to whether they have done anything wrong,
• limit the length of the suspension,
• keep in regular contact with the employee, and
• where possible, keep the suspension confidential.

Allowing the employee to be accompanied at suspension meetings, informing them in person of the suspension and then following up the suspension in writing is also considered good practice.

The All-Party Parliamentary Group on Menopause (APPG) has undertaken an inquiry into the current level of understanding amongst policymakers, the public and employers regarding menopause.

In its final report, published on 12 October 2022, the APPG recognises that despite women over 50 being the fastest growing segment of the workplace and most going through the menopause transition during their working lives, due to the current lack of legislation and guidance, many employers don’t have the necessary tools to effectively support menopausal women in the UK.

Issues ranged from requests for additional support being misunderstood and denied, the particular struggles of going through the menopause in male orientated workplaces and employees inability to take sick leave for menopausal symptoms.

The APPG, therefore, recommends that the government must:

• support an employer-led campaign to tackle the taboo surrounding menopause within the workplace and promote the importance of treating menopause as a core employee health issue; and  
• update the ‘best practise’ menopause in work policies and support interventions, such as setting up menopause networks/support groups for employees and providing accessible menopause resources.

The names of businesses that have claimed wages through the Coronavirus Job Retention Scheme or furlough have continuously been published since January 2021 and HMRC has encouraged people to report any suspicions of fraud, even if reported anonymously. 

HMRC received over 15,000 reports from whistle-blowers during the 12 months leading up to 1 April 2022. By comparison, in the year before the pandemic, only 8,900 reports were received. This increase was said to be largely driven by people reporting abuse of the furlough scheme provided by the government.

From the whistleblowing reports made last year, 38% of the reports were deemed to be serious enough to require further action, with HMRC following up on 5,800 cases.  

Since its relaunch in 2020, the BeReal app has gained significant popularity. The app works by notifying all users simultaneously at a random time every day, giving users just two minutes to stop and take a picture of their surroundings. Once the picture has been posted, users can scroll through all of their friends posts and see what they’re up to.

It seems an innocent concept, however it is a cause for concern for employers as the picture sharing could give rise to privacy and data security risks. An employee taking a photo of their work screen, for example, could be breaking data protection laws if their screen contains personal data.

A further consideration when taking photographs of your computer screen at work is whether it is likely to be a breach of company rules. Most employment contracts will contain a confidentiality clause, which prohibits an employee from disclosing confidential information regarding their employer.

Even though users can choose who to be friends with on BeReal, once a photograph has been posted, users can never be sure who will see it. Screenshots could be taken or phones passed around amongst friends.

In an environment where social media is evolving at a rapid rate, it is paramount to have clear and robust  social media and privacy policies. Please contact us if you require template policies or assistance with any of the above.

We are reaching the end of another year which has been full of yet more, novel pressures and challenges for employers, not least in responding to a post Brexit world, navigating the hybrid workforce, three Prime Ministers and preparing for a looming recession.

The Christmas season is generally considered to be a great opportunity to put these pressures to one side and enjoy time with colleagues outside of work. With a few key steps set out below, your HR team and line managers can also click on ‘Out of Office’ and enjoy a prosecco or two without the doom of having a post-party disciplinary investigation on their priority list.

So, without too much of a heavy hand (you don’t want to undo the goodwill of throwing a great party), politely and respectfully remind colleagues that contrary to popular belief, employers can be held responsible for incidents that occur during a company social occasion, whether or not the organisation funded the party or if the management were present. Colleagues are therefore required to:-

• Re-familiarise themselves with the provisions of the organisations’ equalities and diversity policies and code of conduct/company rules.
• Remember that whilst in attendance at their office Christmas party, they are representing the company, and any behaviour that could be deemed damaging to the company’s reputation, such as drug misuse, discrimination, bullying or harassment, violence or sexual misconduct will be addressed accordingly.

In advance of the party, HR and line managers should make time to:

• review and or update relevant policies and procedures and risk assessments
• ensure that responsible individuals are in attendance who are clear on the policies.
• consider arranging transport for after the party to ensure no one drinks and drives.

Of course, an employer as a legal entity must also be mindful of falling foul of discrimination law, not just vicariously through the actions of its employees. In prepping the party, consider conducting an equalities impact assessment to ensure that no protected groups are discriminated against by the celebrations. For example, in sending out invites, substitute any traditional references to ‘spouses’ with ‘partners’ and provide food and drink choices which are inclusive to all religions and cultures, and which take account of dietary requirements.

These recommendations may sound like a lot more work on top of actually organising the event and coping with the usual year-end pressures. However, in the hindsight of New Year, you will be glad you made that effort.

If in the unfortunate event it is necessary to instigate the disciplinary procedure, then be sure to do so fairly, consistently and in a non-discriminatory way. What is most important is that you do not brush it under the carpet, as by ignoring it, you may face discrimination or victimisation complaints further down the line.

If you need any further advice on handling Christmas parties, please do get in touch. For advice on other issues faced by HR in the run up to Christmas, see our Blog ‘Christmas in the Workplace’ or book onto our upcoming seminar

When instructing solicitors, clients can take comfort from the well-established legal principle that allcommunication between clients and their lawyers is covered by ‘legal advice privilege’. However, this is not the case with regard to advice from HR professionals who are not legally qualified and this was recently confirmed by the Employment Appeal Tribunal (EAT) in the case of Trentside Manor Care Ltd and ors v Raphael [2022].

The facts

In May 2018, Ms Raphael, a full-time care home manager, made a flexible working request to reduce her hours to a four-day week, which was agreed on a trial basis. Shortly after, Ms Raphael shared with colleagues on a WhatsApp group certain actions she had taken about a mattress provided to a resident. The following week, she was suspended, allegedly about the way she had handled the matter, in addition to other alleged conduct issues that had come to light. Ms Raphael was subsequently dismissed following a disciplinary hearing.

She claimed that the misconduct charges were a sham and that the real reason for her dismissal related to her earlier flexible working request which, in turn, related to her disability. She issued proceedings in the tribunal for unfair dismissal, disability and age discrimination .

During tribunal proceedings, Ms Raphael’s solicitors applied for disclosure of all email exchanges and advice between Trentside and their HR advisors, Citation Ltd, that related to Ms Raphael from the date when she made her flexible working request to the date of dismissal. Trentside claimed that these documents were protected by legal advice privilege.

The advisers were not, however, a firm of solicitors. Instead, they had an HR and employment law advice team, headed up by solicitors. Although all but one of the managers was legally qualified, the individual client advisers who had provided Trentside with advice during the relevant period, were not.

Decision

The EAT decided that the documents requested were not covered by legal advice privilege as the advice had been given by non-lawyers and the fact that the advisers were part of a team headed by a solicitor did not extend the principle of legal privilege to the advice that they gave.

Comment

When instructing HR professionals or legal advisors that are not legally qualified, employers should be mindful of the risks of a litigious employee requesting disclosure of correspondence and advice passing between them and their advisers. This will not be covered by legal privilege.

There is an alternative legal principle on which a non-legally qualified HR advisor can potentially rely in this situation, which is litigation privilege. In fact, Citation Limited sought to rely on litigation privilege, in addition to legal privilege, in the case above. However, litigation privilege also comes with a warning in that its protection only kicks in once litigation is reasonably contemplated, pending or existing. In the employment context, advice is often sought way before there is any prospect of litigation. As such, in the above case, Citation Limited were not permitted to rely on litigation privilege in respect of advice given to Trentside in the period between the date of Ms Raphael’s flexible working request and her dismissal.

At Morgan LaRoche, our Employment Team are all qualified solicitors and in instructing us, you can be confident that any advice you receive, or correspondence passing between us, will not be disclosable in tribunal proceedings brought against you.