Protect, a whistleblowing charity, has disclosed a notable rise in whistleblowing calls. In 2023, there was a 23% increase compared to the previous year.

Of those who reached out to Protect’s Advice Line, 41% claimed that their whistleblowing concerns went unaddressed by their employers. Additionally, a concerning 73% reported facing victimization or being coerced into resigning after speaking up.

The sectors affected by these reports span a wide range. The private sector accounted for 42% of the calls, with the public and charity sectors contributing 24% and 23%, respectively.

The health and social work industry experienced the most significant surge, with a 48% increase in calls from 2022 to 2023.

Demographically, nearly half of the callers (44%) earned an annual income below £30,000. Many of these individuals were frontline workers within hospital wards and small charities, expressing concerns about the mistreatment of vulnerable people and the safety of patients.

On 29 February 2024, the Carer’s Leave Regulations 2024 (SI 2024/251) were enacted, a milestone in employee rights in England, Wales and Scotland. These regulations introduced unpaid carer’s leave from April 6 2024.

Under these regulations, employees will have the right to take unpaid leave to provide or arrange care for a dependant with long-term care needs. Notably, eligibility for this leave is not contingent on length of service, ensuring all qualifying employees can access it.

Carer’s leave will be granted in increments of half days or full days, with a maximum allowance of one week over a 12-month period. This flexibility aims to accommodate varying caregiving responsibilities while balancing work commitments.

Crucially, employees taking carer’s leave will be afforded the same employment protections as those on other forms of family-related leave. This includes safeguards against detriment or dismissal based on their decision to take or seek carer’s leave.

These regulations mark a significant step forward in supporting employees with caregiving responsibilities and promoting work-life balance. As they come into effect, it’s essential for both employers to familiarize themselves with these new rights and obligations and to introduce a policy.

The Equality and Human Rights Commission (EHRC) released guidance on February 22, 2024, addressing the often-overlooked topic of menopause in the workplace. The resource aims to equip employers with the knowledge and tools necessary to support workers experiencing menopausal symptoms and to understand their legal obligations whilst doing so.

1. Understanding the Impact

The guidance sets out what the menopause and perimenopause entail and how the associated symptoms can detrimentally affect an employee’s well-being and productivity. Symptoms such as decreased concentration, increased stress, reduced patience, and feeling physically less able can contribute to absenteeism and even prompt employees to leave their jobs altogether.

• Legal Obligations Under the Equality Act 2010

EHRC’s guidance emphasizes an employer’s legal obligations, particularly under the Equality Act 2010 (EqA 2010), concerning protected characteristics such as disability, age and sex. It highlights the potential risks of claims for failure to make reasonable adjustments, direct and indirect discrimination, harassment and victimization. Additionally, it emphasizes the imperative for employers to conduct workplace risk assessments in accordance with health and safety legislation.

Accompanying the guidance are three videos. The first video elucidates how workers experiencing menopausal symptoms may be protected under the EqA 2010. The second video offers practical examples of adjustments employers can implement to support their workers effectively. These adjustments may range from changes in the physical work environment to promoting flexibility in work arrangements. Notably, the guidance advocates for recording menopause-related absences separately to mitigate discrimination risks.

The third video highlights the importance of fostering open conversations about menopause in the workplace. EHRC encourages inclusive dialogue involving all employees, not just management. Establishing an environment where workers feel comfortable discussing their symptoms and requesting adjustments is crucial. Suggestions include training sessions, lunch and learn opportunities, and the establishment of staff networks to provide support and encouragement.

EHRC’s guidance advocates for the introduction of a menopause policy outlining available support and guidance, which should be regularly communicated to all employees.

The guidance and videos can be located here: Menopause in the workplace: Guidance for employers | EHRC (equalityhumanrights.com)

On February 8, 2024, the Home Office released an updated version of its Employer’s Guide to right to work checks. This latest edition brings significant changes and clarifications aimed at ensuring compliance and safeguarding against illegal employment practices.

Key highlights of the updated guide include:

1. Increased Civil Penalties: The maximum civil penalty for non-compliance has been raised, now standing at £45,000 per illegal worker for a first breach and £60,000 per illegal worker for repeat breaches. This emphasizes the gravity of ensuring accurate and thorough right to work checks.

• Removal of 28-Day Concession: The previous 28-day concession allowing late applications to the EU Settlement Scheme for certain employees has been eliminated. Employees, including EEA nationals and non-EEA national family members hired on or before June 30, 2021, must now hold a lawful immigration status permitting them to work in the UK. Employers are mandated to take appropriate action upon identifying employees lacking the right to work, which may involve seeking support from the Home Office or terminating employment after taking legal advice.

• Supplementary Evidence: Employers are now advised to obtain additional evidence when hiring individuals engaged in “supplementary employment,” where they work under another employer for their primary role. This precaution ensures compliance with regulations limiting supplementary employment to 20 hours per week.

These updates underscore the Home Office’s commitment to strengthening the integrity of the UK’s workforce and holding employers accountable for upholding immigration laws. By adhering to the revised guidelines, businesses can mitigate risks associated with illegal employment. The guide can be located here: Employer’s guide to right to work checks: 8 February 2024 (accessible) – GOV.UK (www.gov.uk)

On February 20, 2024, the Department for Business and Trade (DBT) unveiled a list of 524 employers who fell short of meeting the national minimum wage (NMW) following investigations conducted by HMRC between 2015 and 2023. The investigation resulted in the repayment of nearly £16 million to over 172,000 workers, with maximum penalties of up to 200% of the underpayment.

The common reasons included:

• Deductions from wages for various items including food, uniforms, equipment, childcare costs and salary sacrifice schemes.
• Instances of unpaid working time, stretching from pre- and post-shift work to rounded clock-in times and unpaid travel time.
• Failures to pay the correct rate to apprentices, inaccuracies in applying accommodation offsets and discrepancies in paying workers based on their work type.

This latest revelation serves as a reminder to employers of the importance of adhering to NMW regulations.

The list can be located here: Over 500 companies named for not paying minimum wage – GOV.UK (www.gov.uk)

On February 20, 2024, the Chartered Institute of Personnel and Development (CIPD) released a comprehensive guide aimed at fostering neuroinclusion within the workplace, focusing mainly on autism and ADHD.

The guide offers insights into the intricate realm of neuroinclusion, beginning with essential definitions that set the stage for understanding. It emphasizes the importance of engaging with employees to determine appropriate language usage and highlights the significance of terms such as “neurodivergent” and “neurotypical.”

Central to the guide is the concept of “neurodiversity” as a spectrum of human brain functioning and “neuroinclusion,” as inclusion of neurodiversity by “consciously and actively including all types of information processing, learning and communication styles”. The guide emphasizes that despite the critical role diversity of thought plays in fostering innovation and creativity, the aspect of neurodiversity within organizational diversity, equity, and inclusion (DEI) remains substantially overlooked.

To foster a neuroinclusive workplace environment, the guide suggests employers:

• Deliberately considering office design;
• Promote flexibility in work arrangements regarding time and location, while also accommodating diverse preferences in communication styles, instructions, and meeting formats;
• Develop a culture of psychological safety where individuals feel empowered to seek support;
• Acknowledge the unique needs of each person, even within shared neurodivergent identities;
• Equip managers with the skills to facilitate open conversations and encouraging all staff members to request workplace adjustments to normalize the process; and
• Cultivate a neuroinclusive culture through various means, including raising awareness of neurodiversity through training initiatives.

The guide further suggests integrating neurodiversity into recruitment and promotion procedures. This involves providing neuroinclusive interview training, exploring alternative assessment techniques and offering diverse career paths.

To initiate the journey towards neuroinclusion, the guide advises employers to:

• Engage with employee resource groups to outline the strategic approach.
• Offer training and support materials with references to expert organizations;
• Inviting staff to share personal experiences; and
• Conduct a thorough review of policies, processes, and technology to ensure neuroinclusivity.

The guide can be located here: Neuroinclusion at work | CIPD

In the recent case of Steel v Spencer Road LLP (t/a The Omerta Group) [2023] EWHC 2492 (Ch), the High Court ruled that a bonus clawback provision in an employment contract did not amount to a restraint of trade.

In January 2022 Mr Steel, the claimant received a bonus of £187,500 from his employer, Omerta. In February 2022 he resigned from the company.

Mr Steel’s employment contract contained a clawback clause which required him to repay the bonus if he left or was given or gave notice within 3 months of it being paid. As a result of him resigning this activated the clause.

The claimant refused to repay the bonus back, therefore Omerta served a statutory demand on him.  The claimant appealed to the Insolvency and Companies Court (ICC) to have the demand set aside and argued that the clawback provision was an unreasonable restraint of trade. The ICC dismissed this argument, but the claimant later appealed to the High Court.

The High Court dismissed the appeal and held that:

• The ICC was correct to  conclude that a contractual clawback provision was not a restraint to trade.  Even though a bonus scheme was conditional on the employee staying in his employment for a certain amount of time, it operated as a disincentive to resigning. The clawback clause did not amount to a restraint of trade.

The ICO research reveals that 70% of people surveyed would find monitoring in the workplace intrusive and fewer than one in five people would feel comfortable taking a new job if they knew that their employer would be monitoring them. Monitoring includes tracking calls, messages, webcam footage and audio recordings.

The guidance aims to assist employers to comply with the Data Protection Act 2018. It provides a clear direction on how monitoring can be conducted lawfully and fairly. As well as outlining legal requirements, it also includes good practice advice to help employers build trust with their workers and respect their privacy. 

ICO states that if an organisation wishes to monitor workers it must take steps which include:

• Making workers aware of the nature, extent and reasons for monitoring;
• Having a clearly defined purpose and using the least intrusive means to achieve it;
• Having a lawful basis for processing workers’ personal data;
• Informing workers of any monitoring in a way that it is easy for them to understand;
• Only keeping data that is relevant to the purpose; and
• Carrying out a Data Protection Impact Assessment.

Click here to access the guidance

https://ico.org.uk/for-organisations/uk-gdpr-guidance-and-resources/employment/monitoring-workers/

Following recommendations made by the Low Pay Commission, the Chancellor has promised to increase the National Living Wage. The National Living Wage is due to increase to £11.44 per hour from April 2024. The age threshold is set to be lowered from 23 to 21 in April 2024.

The National Minimum Wage rates for younger workers will also increase. These are as follows:-

•             18-20 year old rate: £8.60 (14.8% increase).

•             Apprentices and those agreed 16-17 year old rate: £6.40 (21.2% increase).

•             Apprentice rate: £6.40 (21.2% increase).

•             Accommodation offset: £9.99 (9.8% increase).

The CIPD has published its findings of its annual health and wellbeing at work survey.

The key findings include:

• Sickness absence- The average level of employee sickness absence rate is 7.8 days per employee. This is the highest level for over a decade.

• Stress and mental health – Around 76% of institutions reported some stress related absences. These were related to heavy workloads and management styles. Mental health continues to be the most common focus of wellbeing initiatives which includes mental health first aid training, wellbeing champions and promoting flexible working.

• Presenteeism and leaveism –   These remain prevalent with 87% of organisations observing presenteeism (coming to work when unwell) and 63% overserving leavesim (using annual leave to work or unwell).

• Manager training – Only 30 % of institutions provide training for managers on how to support people with health problems to stay in work.

• Wellbeing strategy – 53% of organisations have a wellbeing policy and the number agreed that wellbeing was on the agenda of senior leader remained high (69%).

• Menopause and pregnancy – 24% of organisations have a menopause policy. 37% have a provision for pregnancy loss. Only 15% have a policy for menstrual health but 19% plan to propose one.

Click here to read more on the CIPD website:

Click here for more details on how Morgan LaRouche can help you as an employer

In the case of Lynskey v Direct Line Insurance Services Ltd ET1802204/2022, the employment tribunal found that the employer treated an employee unfavourably because of something arising from her disability and failed to make reasonable adjustments.

Mrs Lynskey worked for Direct Line Insurance Ltd as a tele-sales consultant from 2016 until her resignation in 2022.  In 2019 she started to experience menopause symptoms which adversely affected her work performance. Prior to this she had received good performance marks in the first four years of her employment.  In 2020, she was diagnosed with a hormone imbalance, depression and low mood and was prescribed antidepressants.

In 2020, she received a couple of customer complaints regarding her handling of a call and was given further training.  The employer carried out performance management proceedings and Mrs Lynskey received a disciplinary warning. During this process she was signed off sick and was referred to occupational health in which they advised that she was likely to be disabled. After she had received  13 weeks of sick pay she was informed that she could not receive any more sick pay. On 3 May 2022 she resigned, bringing claims for constructive dismissal and disability, age, and sex discrimination.

The tribunal upheld her claim for discrimination arising from disability and failure to make reasonable adjustments. The decision to give Mrs Lynskey an annual performance rating of requiring improvement, a formal written warning and to cease paying discretionary sick pay before her entitlement ended were found to be reasons of discrimination arising from disability. Although the company did make adjustments and provide additional support and training to Mrs Lynskey, the tribunal found that the company should have gone further.

The tribunal awarded the claimant compensation totalling £64,645, including £23,000 for injury to feelings. A £2,500 award was given for aggravated damages in relation to the company’s failure to accept that she was disabled until January 2023, and that it had constructive knowledge of her disability until the final hearing commenced in April 2023.

The employment tribunal found that an employee was unfairly dismissed and discriminated against for using offensive racial term during a training session.

The claimant was a manager at Lloyds Bank. He attended a race awareness training session and was asked how he should handle a situation where he had heard someone using language that might be offensive if not used by someone of an ethnic minority. He responded by saying “the most common example being the use of the ‘N’ word in the black community”. He had used the full word.

The claimant was dismissed for gross misconduct for the use of the offensive language.  He brought a claim of unfair dismissal and discrimination arising out of disability.

The tribunal upheld the claimant’s claim for unfair dismissal. The tribunal found that context was everything. The claimant did immediately apologise after he had said the word. He had not used the word as a term of abuse, but simply to ask how to deal with the use of unacceptable language. The Bank failed to conduct a reasonable investigation and it was found that the Bank did not have reasonable grounds for believing that the claimant’s actions amounted to gross misconduct.

The tribunal also upheld the claim of discrimination arising from disability. The claimant had dyslexia, and this led him to reformulate questions and burst things out before losing his train of thought, contributing to the way he expressed himself in the training session.

This is a useful reminder to employers to investigate matters properly and to consider if their decision to dismiss falls with the band of reasonable responses.

The CIPD has published new guidance on ‘transgender and non-binary inclusion at work’ to assist employers in enhancing equality, diversity, and inclusion (EDI) in the workplace.

According to the recent research carried out by the CIPD, LGBTQ+ employees are more likely to experience workplace harassment than heterosexual colleagues. 18% of transgendered employees admitted that they felt mentally unsafe in the workplace.

The guidance can help employers create a more inclusive workplace for transgender and non- binary employees. Employers can achieve this by carrying out the following:

• Creating new EDI policies and amending existing policies to ensure they are up to date.
• Carrying out EDI training.
• Demonstrating through web pages and social media platforms that they are a diverse workplace to attract talent.
• Creating an environment where everyone feels safe and accepted.
• Avoiding sharing data about transgender and non- binary persons’ gender identity unless they have instructions to do so.
• Making sure action is taken if an employee displays inappropriate behaviour towards transgenders and non-binary employee in the workplace.

Click here to read the guidance: https://www.cipd.org/uk/knowledge/guides/transgender-non-binary/

The ICO has published in depth guidance for employers on processing workers health data.  It aims to provide tips and good practice advice for employers on how to comply with data protection legislation. Health data is categorised as special category personal data and is granted enhanced protection under the UK GDPR.

The guidance explains how the Data Protection Act applies to the processing of workers health and key points to consider to ensure compliance. These include:

• Observing the stricter requirement for processing special category data;
• Providing employees with details about the employer’s processing of their data;
• Carrying out a data protection impact assessment; and
• Data minimisation and security.

The guidance looks at how data protection law applies to particular workplace circumstances. For example, managing sickness absence records and occupational health schemes. 

The guidance also has a set of checklists to help guide employers through their data protection issues whenever they need to process workers’ health information.

Click here to access the guide:

https://ico.org.uk/for-organisations/uk-gdpr-guidance-and-resources/employment/information-about-workers-health/

A survey of 2,000 workers has revealed the most helpful adjustment in managing negative symptoms of menstruation and menopause in the workplace.

Of those who were surveyed, 35% said that the negative symptoms associated with menopause affected their work. 53% said that their symptoms associated with menstruation also made it difficult for them to work.

According to the survey, the most popular workplace adjustments were:

• Fresh air;
• Comfortable desk seating;
• Natural light;
• A private room;
• Temperature controlled spaces; and
• More focus rooms with less distractions.

This is useful guidance for employers looking to make the workplace more manageable for workers experiencing such symptoms.

The recent case of Fischer v London United Busways ET/2300846/2021, demonstrates that a use of a gender swearword could amount to discrimination.

Miss Fischer is a trans woman who worked as a bus driver for London United Busways (LUB). She brought a claim against the LUB for gender reassignment discrimination. One of her allegations were that one of her colleagues had called her a ‘wanker’. She argued that this was less favourable treatment because of her gender reassignment.

The claim failed because the employment tribunal found that the alleged comment had not been made. However, the tribunal implied that had the comment been made, this would have been sufficient to establish a case of gender reassignment discrimination. The tribunal recognised that the swearword that was used in this case is used to apply to men and therefore not gender neutral.

The tribunal also found that the company had not taken ‘all reasonable steps’ to prevent the gender reassignment discrimination. The reasons being that (1) the Equal Opportunities Policy was not up to date, (2) the Equal Opportunities and Harassment policies were pinned on noticeboards at the depot where only a small proportion of the drivers spend their time there; and (3) there was a lack of understanding and awareness of the LGBTQ issues across the company.

Morgan LaRoche can assist with policies, procedures and internal training to assist Companies in defending discrimination claims.

In the recent case of AECOM Ltd v Mallon [2023] EAT 104, the Employment Appeal Tribunal (EAT) found that the employer was under a duty to make reasonable adjustments for a job applicant with dyspraxia which required him to complete an online application form which put him at a substantial disadvantage.

The applicant applied for a job with AECOM Limited. He had emailed his CV to AECOM’s HR department which included information about his dyspraxia and asked if he could make an oral application due to his disability. The AECOM’s HR manager contacted the applicant to inform him that he needed to complete an online application form and that if he required assistance, he would need to contact them. The applicant was unable to complete his application form and brought a disability discrimination claim against the company for failing to make reasonable adjustments.

The tribunal upheld the applicant’s claim that he was put at a substantial disadvantage. Although the company did not have ‘actual knowledge’ of the disability, the tribunal found that they did have ‘constructive knowledge’ as they ought to have known that the applicant faced a disadvantage due to his dyspraxia. The tribunal found that it would not have been reasonable for him to explain himself further by email due to his difficulties with written communication. The company appealed the tribunal’s decision of ‘constructive knowledge’ by stating that it was flawed.

The EAT found that the company should have made reasonable enquiries into the nature of the applicant’s dyspraxia which should have involved a phone call to the applicant as his lack of responses to emails was due to his difficulty with written communication. If the company had made reasonable enquiries, they would have had knowledge of the disability to make reasonable adjustments which is an obligation under the Equality Act 2010.

This is useful guidance to employers to understand their obligations during recruitment.

In July 2023, ACAS updated its guidance on managing sickness absence in the workplace. The guidance covers a range of topics including:

• Checking holiday entitlement and sick pay;
• Fit notes and proof of sickness;
• Time off for dependants/ parents;
• Returning to work after absences;
• Creating absence policies; and
• Recording and reducing sickness absence. 

Here are some tips for employers from the guidance on how to manage sickness absence effectively.

1. Contact during absence

Employers and employees should agree on how to stay in touch during absence and how much contact is reasonable. Employers should also inform employees who are absent about promotions, job opportunities and redundancies. This helps to maintain good relationships with employees and protect employers from discrimination complaints.

• Return to work meetings

Return to work meetings can help identify the best way to manage sickness absence. They can help to identify any trends in absence across companies and identify underlying cause of absence.

• Recording absence

Recording sickness absence can help employers to:

• Find if there is a problem with absence levels;
• Compare absence levels with similar organisations;
• Identify the more common reasons for sickness absence in the organisation; and
• Explore whether absence levels are highest in certain groups of employees.

Click here to access the guide: https://www.acas.org.uk/holiday-sickness-leave