Commercial Solicitors in South, West and Mid Wales – Morgan LaRoche
National Stress Awareness Day is a great opportunity to take a moment to think about our wellbeing and find advice or support on managing stress, in order to maintain our wellbeing . This is particularly important in the workplace where stresses of workload and working relationships are common.
As an employer, why not start the conversation about stress in the workplace. By creating a Stress Awareness Space, staff can share their thoughts and feelings when they are feeling stressed.
The Restriction of Public Sector Exit Payments Regulations 2020 will introduce a £95,000 cap on exit payments in the public sector and will come into force on 4 November 2020.
The amount of the cap
The 2020 Regulations restrict prescribed public sector bodies from making exit payments above the cap of £95,000.
Affected employers
The employers affected are listed in the Schedule to the 2020 Regulations. They include, for example (although the list is much more extensive than the below):
Types of exit covered
It covers the situation where an employee or officer leaves the employment and where one person holds two or more positions.
Types of exit payments covered
The following payments are exit payments:
Payments exempt from restrictions
The following are examples of payments that are not exit payments:
Comment
Public sector employees’ exit packages over £100,000 amounted to £200 million in the 2017-18 financial year. The total of all exit packages in the same financial year was £900 million, including compulsory redundancies and other agreed departures such as voluntary redundancies.
While public sector employees may be shielded to some extent from the increased risk of redundancy as a result of the COVID-19 pandemic, it is expected that the exit payment cap will result in significant savings for public sector employers.
For more information please contact Hannah Belton, Director and Head of Employment Law at Morgan LaRoche on [email protected]
The Employment Appeal Tribunal (EAT) has upheld a tribunal’s decision that deductions from wages for rent were not to be treated as reductions for the purposes of calculating the national minimum wage (NMW), where the landlord was a separate property company connected to the employer.
The same individual was also director and sole shareholder of the employing company and the property company. The Judge held that, as the appeal had been brought solely on the basis that the term “employer” should include a connected company, it had to fail.
The Judge further commented that, if the appeal had been brought on wider grounds, i.e. that the employer had still been responsible for providing the accommodation to the worker notwithstanding that it was not the landlord, the outcome could have ‘quite possibly’ been different.
In addition, the EAT upheld the tribunal’s decision that deductions for training costs, taken out of the workers’ wages pursuant to a contractual provision if they left employment within 12 months of completing mandatory induction training for any reason other than redundancy, did constitute reductions for NMW purposes. The situation would have been different if the deduction had been made during employment, which would be a reduction for NMW purposes, and the fact that it was deducted post-termination, or was contractual in nature, or was contingent, did not alter the position.
Acas published its Annual Report and Accounts for 2019/20 on 14 July 2020 covering the year ending 31 March 2020. The foreword to the report outlines the impact of the COVID-19 pandemic on its operations. Acas helpline saw an increase in calls of approximately 50% per day during the lockdown period as particularly covered in the report, with a spike on one day of around 15,000 calls which is noted to be five times the average daily number of calls answered by Acas. During the 2019/20 period a total of 800,000 calls were received.
During the 2019/20 reporting year, Acas also received nearly 140,000 early conciliation notifications, an increase of 5% on the previous year. 77% of the notifications handled by Acas did not lead to an employment tribunal claim, either because some type of settlement was achieved or the claimant decided not to proceed with their claim. Over the 2020/21 year, Acas states that it will implement further enhancements to its conciliation process, including speedier allocation of cases to conciliators, quicker contact with customers over a range of different channels and simplified handling of group claims.
Acas further notes that it has continued to increase its online training initiatives, both on its own and with partner organisations, by delivering webinars to 16,000 delegates. Across both the old and new Acas websites (as at December 2019), there were approximately 15 million web user sessions during the 2019/20 reporting year which included a record 3.6 million visits, up to the end of March 2020, to COVID-19 advice available on the Acas website.
https://www.acas.org.uk/acas-annual-report-and-accounts-2019-to-2020
The Pipeline, a collaboration of Diversity and Inclusion specialists, has published a report on the current state of gender diversity in the workplace and how it can be improved. According to the report, entitled Women Count 2020, London-listed companies with more than one in three women at executive level reach 15.2% net profit level on average in comparison with the profit levels of companies with no women at executive level, which reach 1.5% net profit level on average. Also, it was revealed that firms led by a woman are more likely to have a higher proportion of women in executive positions. However, in 2020, there were only 13 female CEOs in the FTSE 350.
The Department for Work and Pensions (DWP) has recently published their guidance which provides information and support for employers making redundancies in response to the economic climate triggered by COVID-19 pandemic.
There is a Redundancy factsheet for employers which outlines the support employers can give to employees facing redundancy and being made redundant together with links to useful information on governmental and non-governmental webpages including ACAS and The Insolvency Service. In addition, the guidance provides support for employees seeking voluntary redundancy and early retirement, and for employees who are struggling to cope after being made redundant.
An updated Form HR1 was recently published by the Insolvency Service.
https://www.gov.uk/government/publications/redundancy-support-for-employers
An employment tribunal has found that a hairdresser who worked under a consultancy agreement with a salon for five years was an employee.
Ms Gorman started at Terence Paul salon in Manchester in 2013 as an apprentice. Following her qualification in 2014, the salon provided her with an “Independent Contract for Services” in which it agreed to engage her as a “self-employed hairstylist”, which confirmed that Ms Gorman was not, and did not wish to be, an employee of the salon.
However, the salon closed in 2019. Subsequently, she issued a claim for unfair dismissal, sex discrimination, notice pay, holiday pay and redundancy pay. Since the salon disputed that Ms Gorman was an employee or worker, a preliminary hearing took place to determine this issue.
Ms Gorman was 19 years old when she started working for the salon and she didn’t understand and was not able to negotiate the terms of the contract. It also found that the contract did not reflect the reality of her working arrangements. She was subject to strict control by the salon when providing her services. There was mutuality of obligation, since her clients were allocated to her by the salon, she was obliged to perform services for them, and the salon was obliged to pay her for providing those services. Although, the contract theoretically allowed her to send a substitute if she could not attend work, in practice this was not possible. If she was unable to work, her clients were covered by other stylists at the salon. Including but not limited to, Ms Gorman:
Based on these facts, the tribunal held that the tests for employee status were easily identified.
This is a further reminder of the approach a tribunal will take when establishing employment status, and that the underlying contract must be considered in the context of all the other facts.
Acas has announced a new podcast discussing the role of the Black Lives Matter movement and its impact within the workplace. Discussions includes a range of topics, from experiences of racism and inequality in the workplace to the steps that can be introduced by employers and leaders to tackle these issues and encourage those sensitive discussions.
https://shows.acast.com/acaspodcast/episodes/black-lives-matter-the-workplace
The Employment Appeal Tribunal (EAT) has found that two foster carers who had signed a written “multi-treatment foster care” (MTFC) agreement were employees of the local authority who had approved them as foster carers. The tribunal found that parts of the written agreement reflected the statutory regulatory framework and therefore, could not be contractual in nature, and that other parts were merely designed to provide helpful information to the foster carers and were not matters that were usually considered to fall within the province of contract law. However, the parts of the agreement relating to a professional annual fee of over £30,000, which had the appearance of remuneration as opposed to simply covering costs, and which provided for the local authority to exercise a very high degree of control over the foster carers, were contractual in nature. This contract had the hallmarks of a contract of employment and the tribunal had not erred in finding that the foster carers were employees. However, the Judge expressly declined to express a view on whether the same finding would apply to “ordinary” foster carers not appointed under this arrangement.
Recently, Police have made an arrest in Solihull in connection with a man on suspicion of defrauding the government’s Coronavirus Job Retention Scheme (CJRS) by £495,000. HMRC’s fraud investigation service commented that they would “not hesitate to act on reports of abuse of the scheme”. It is thought to be the first case relating to misuse of the CJRS.
The Employment Appeal Tribunal (EAT) found that a teacher was unfairly dismissed for misconduct after being charged of being in possession of indecent images of children, but he was not prosecuted. The teacher admitted that a computer in his home contained indecent images but denied responsibility for downloading them. The school found that there was insufficient evidence to conclude that the teacher was responsible for the images but decided that he should be dismissed in any event because allowing the teacher to return to his post would pose an unacceptable risk to children. In the dismissal letter, the school also referred to the “serious reputational damage” if the teacher was subsequently found guilty of this kind of offence and the school had been aware of the allegations.
Allowing an appeal, the EAT found that the complaint as set out in the disciplinary invitation was based solely on misconduct and gave no notice that reputational damage was a potential ground of dismissal. In these circumstances, the employer was bound to decide on whether the misconduct had been established. Had it done so, it would have been bound to conclude that misconduct had not been established. The EAT could not accept that an employee could be dismissed based on a matter that was only mentioned in an investigatory report, not in the actual complaint. Although reputational damage may be regarded as a separate ground of dismissal, it raises separate considerations to those in a misconduct dismissal, which must be made clear from the outset. In this case, the teacher had not been given an opportunity to address the reputational issue in any detail at the disciplinary hearing.
Considering whether a fair dismissal would have been possible, had the school referred to reputational damage in the original complaint as set out in the disciplinary invitation, the EAT found that the scant evidence available meant that the teacher was dismissed in the absence of any information about the nature or seriousness of the images, or the reasons why no prosecution was brought. In view of this, the EAT found that the evidence was insufficient to support a dismissal based on reputational damage.
The Employment Appeal Tribunal has upheld an employment tribunal’s finding that a dismissal for “some other substantial reason”, effected by an employer without following any procedure, was not unfair. Following a breakdown in working relations between the claimant and her line manager, arising out of various workplace disagreements, the claimant was informed at her annual appraisal that she was being exited from the business due to a lack of trust. However, there had been at least two previous meetings to consider the difficulties in the relationship.
The EAT noted that a failure to carry out any procedure would in many cases lead to the conclusion that the dismissal was outside the band of reasonable responses. However, where following procedures could reasonably be considered as being futile, the employer may dispense with them, a rare example of such a case. The claimant was a senior manager whose continued good working relationship with her manager was critical during a difficult period for the employer’s business. Having thoroughly considered the evidence, the tribunal had found not only that a procedure would not have served any useful purpose, but that it would have worsened the situation. This was a conclusion it had been entitled to reach. It was effectively a personality clash between two senior managers, where neither individual had trust and confidence in each other. The evidence demonstrated that the claimant recognised the breakdown in relations herself and had no interest in repairing it. Given the circumstances, the tribunal’s finding could stand.
Today we observe World Menopause Day. Today’s aim is to educate and raise awareness around the globe of the impact that menopause can have on women’s everyday lives. There appears to be a growing need for employers to better understand and support their female workforce who are going through the menopause.
Employers should support their femal emeployees who are going through the menopause by making reasonable adjustments, for example, access to fans to alleviate the symptoms of hot flushes, for those who are required to wear uniforms, the provision of breathable fabric uniforms and perhaps, where possible, showering facilities.
The World Health Organisation recognises World Mental Health Day on 10 October every year. This year’s theme set by the World Federation for Mental Health is suicide prevention.
Every step taken towards preventing suicide is also a step towards a mentally healthier society. We will all benefit if we create a society where we can ask for help, experience less trauma and distress and where support is on hand when we need it.
Employer Tip – ensure that there is a strong support procedure in place for your employees. Help to create a work environment that value its employees and their families. If in the situation of an attempted suicide or death, have a plan in place for responding to these circumstances. Implement clear policies, procedures and practical guidance to help employees who need support around issues including mental health, long-term health, domestic violence and financial insecurity. Internal communications and induction programmes that ensure employees are aware of resources and support available and that these are accessible to everyone. Education and training on mental health, including suicide awareness, for all employees especially line managers.
National Work Life Week is an opportunity for both employers and employees to focus on wellbeing at work and work life balance. The week is an ideal opportunity for employers to that they adopt flexible working policies and practices for their employees.
If you require a review of your staff handbook or any of your stand-alone employment policies, please call us on 01792 776776 and ask to speak to a member of our employment team.
More than one in ten of us are dyslexic. Dyslexic strengths around understanding complex information, seeing the big picture and communicating with other, means dyslexia creates great work at all levels, in all kinds of roles and across all industries. Yet, too often, we are failing to empower dyslexics to do their best work. Employers should be aware that dyslexia may constitute a disability under the Equality Act 2010.
An annual event hosted by the World Alliance for Breastfeeding Action, World Breastfeeding Week is celebrated every year from 1 to 7 August to encourage breastfeeding and improve the health of babies around the world.
Breastfeeding promotes better health for mothers and children alike. Increasing breastfeeding to near-universal levels could save more than 800,000 lives every year, the majority being children under 6 months. Breastfeeding also decreases the risk of mothers developing breast cancer, ovarian cancer, type 2 diabetes, and heart disease. It is estimated that increased breastfeeding could avert 20,000 maternal deaths each year due to breast cancer. So with those important statistics in mind, there is no better time to support the breast feeding mothers in your life.
Employers should, where possible, provide a comfortable and private room for breastfeeding mothers to express in private.
NHS Professionals, an employment agency owned by the Department of Health and Social Care, is to be sued by a pregnant healthcare assistant after it refused to put her on furlough. The woman, who has worked for a London hospital on an agency contract for six years, was sent home by the agency for safety reasons eight weeks ago and has not worked or been paid since. She will argue that this is a breach of the Employment Rights Act 1996. Maternity Action, the charity supporting her, have stated that this is not a stand-alone case and warns that some employers and agencies are not abiding by the legal health and safety protections in place to protect pregnant women. The case could serve as a precedent for other vulnerable workers who have been left without work or pay as a result of the COVID-19 pandemic.
Over a third of all Coronavirus disease (COVID-19) related calls received by whistleblowing charity, Protect, have been made by employees reporting an employer’s misuse of the Coronavirus Job Retention Scheme. The charity reported that informants disclosed a range of fraudulent activities including employers forcing staff to work despite being furloughed, asking staff to continue working as volunteers and claiming for staff who were still working without their knowledge.
Protect’s data mirrors that collected by HMRC and WhistleblowersUK, however it warns that despite HMRC’s announcement that 800 people reported their employers for fraudulent use of the furlough scheme, the temporary closure of HMRC’s fraud reporting hotline may dissuade potential whistleblowers from reporting if they feel unable to use the online reporting service.
Government sources have revealed that legislation introducing an employee’s right to work from home may be brought in as part of the government’s return to work package. BIS is apparently considering potential legislation which would protect employees who feel it is unsafe for them to return to work and could also benefit employers who are struggling to make their workplaces safe in accordance with social distancing requirements.
The potential development aligns with the Prime Minister’s manifesto pledge to make flexible working the norm.
