A free service provided by Rights of Women giving legal guidance for females who have been victims of sexual harassment in the workplace has been launched, with the assistance of Emma Watson, actress and campaigner of the Time’s Up UK.

There is no similar service to this, and its objective is to improve female’s understanding of their rights in law, and to ensure there is no deficiency in the accessibility of legal guidance.

The TUC have found that almost half of all females have endured sexual harassment in work.

Current research has indicated that disability discrimination claims being heard at employment tribunals has increased by 37% in just one year (from 2017 to 2018). Central to these cases is stress-induced mental health issues. More employees are now also ready to bring claims which relate to their mental health.

To be able to minimise this growing rate, support for workers must be improved. The government has pledged to commit to The Stevenson Farmer’s Review of mental health and employers, which has made 40 recommendations.

The duty of employers under the Equality Act 2010 to make reasonable adjustments for disabled employees has been emphasised recently by the head of workplace wellbeing at Mind, Emma Mamo. However, Emma has acknowledged the requirement for those employees who suffer from a disability to inform their employers of this, as this appears to be something that does not always happen.

In a recent case, the employer was unaware of an employee’s depression, which is considered to be a disability under the Equality Act 2010 (the Act), until the employer was informed of this in the appeal hearing. The Employment Appeal Tribunal (EAT) determined that the dismissal of this disabled employee could be discriminatory.

The tribunal did not consider that the disability could have had an effect on the conduct of the employee, which was the reason the employee was dismissed. The EAT held that the tribunal incorrectly turned down the claim as the employer had not considered the conduct of the employee when dismissing. The tribunal should have taken into account whether the employee’s conduct as a result of the disability had a “material influence” on the dismissal.

The Department for Business, Energy and Industrial Strategy opened a consultation at the beginning of the year regarding proposals to extend redundancy protection for new mothers from the date that they notify their employer in writing of their pregnancy to six months after their return from maternity leave. The consultation also sought views on whether this protection should be extended to others taking similar leave, such as adoption leave and shared parental leave.

On 1 May 2019, the Women and Equalities Select Committee published its response to the proposals. The Committee’s response supported the proposed extension and called on the government to implement the reform as soon as possible. There was also strong agreement by the Committee regarding extending the protection to those on shared parental and adoption leave. The Committee called on the government to set up a website for employers and individuals, and to work with the General Medical Council and the National Midwifery Council to ensure that health professionals are able to provide basic advice and point women to further information and resources.

On 20 May 2019, the Pregnancy and Maternity (Redundancy Protection) Bill 2019 was introduced. The bill will not include a total prohibition on redundancy, instead it will seek to prevent making employees redundant during pregnancy, maternity leave and for six months following the end of maternity leave (except where the employer ceases to carry on business where the pregnant woman or new mother is employed). The bill would extend to women who experience a stillbirth or miscarriage by protecting them for up to six months from the end of their pregnancy or any leave to which they were entitled. 

The proposed bill is inspired by the German model where employers are unable to make a new or expectant mother redundant unless they have the permission of a specific public authority (this is only given in exceptional circumstances).

In the recent case of The Mayor & Burgesses of the London Borough of Lambeth v Simone Agoreyo, the Court of Appeal determined that if an employer suspends an employee, it must consider whether suspension  ruins or destructs the rapport of trust and confidence.

Employers may want to look at the following when thinking of suspending an employee:

1. The reason for suspension and whether there are other possible options

In the case, it was established that suspending an employee should not be the automatic response. The employer should not presume suspension to be mandatory, even if the poor behaviour of the employee is severe. This is to ensure that defenceless people are safeguarded and to ensure the situation is properly reviewed with inquires being undertaken.

The employer needs to think about the danger to defenceless people, or the danger of causing the inquiry to be illegitimate. To reduce the danger, suspension is not always the answer. For example, an employee could be relocated so that they cannot communicate with those involved in the inquiry.

2. Find out the employee’s version of events before suspending

Prior to making any decisions to suspend an employee, it is crucial that the employer obtains the employee’s reasons for their behaviour.

3. Can the employer suspend under the contract and must steps be followed?

The employer must check whether there is a policy in place stating the requirements of suspension. The employer should also consider if they must follow statutory guidance, for example, in schools.

4. Length of suspension

The suspension should be as short as required based on the reason for suspending the employee. The employer should revisit the suspension regularly too.

5. Documenting and corresponding the outcome to suspend

If suspension is the chosen outcome, the employer should document this decision and the reasons for reaching this outcome. The employee must receive correspondence in writing of the decision and the reasons for the decision. The employer needs to set out that suspension is not permanent, that it is not a consequence of a disciplinary, and that guilt is not presumed.

The Employment Appeal Tribunal (EAT) maintained the Employment Tribunal’s decision of awarding a middle Vento band for a single act of racial harassment. A middle band is between £8,800 and £26,300, and the tribunal awarded compensation in the middle of this bracket.  The fact that the act was a single act, rather than a continuous behaviour was important for the tribunal to consider, however it was not definitive. The tribunal gave regard to the way the claimant felt as a result of the discrimination.

Despite the EAT maintaining the decision of the tribunal, it did grant the appeal for aggravated damages award, as the employer did not comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures (the Code) when dealing with the claimant’s grievance after the employment had terminated. The tribunal granted an uplift of 25% due to the employer’s failure. Consequently, it would be prudent for employers to abide by the Code when dealing with grievances following the termination of employment.

Following the case of R (on the application of Unison) v Lord Chancellor [2017] UKSC 51, the Supreme Court determined that employment tribunal fees were not lawful. As a result, the Government owes claimants £16 million in rebate.

In December 2018, the Ministry of Justice reported that, since October 2017, the Government had made 21,300 rebates in the sum of £16.95 million.

A gay headteacher was constructively dismissed during a disciplinary process which was flawed. The disciplinary process involved investigations into his sex life, namely having sex with two 17-year-old boys he met on Grindr. The flaws were held to be sufficient to entitle him to resign. Furthermore, the way in which the investigating officer conducted himself showed unconscious bias. Therefore, the Employment Appeals Tribunal agreed with the employment tribunal that an inference could be drawn that sexual orientation discrimination had taken place. The employment tribunal found that the school governors had not fulfilled their roles properly as panel members ought to have led them to consider whether they too had discriminated on grounds of sexual orientation.

The Court of Appeal agreed with the decision of the County Court in respect of an employee, who’s profession was teaching, that was suspended by an employer for an alleged use of unreasonable force with youths, in order for an investigation to be carried out. It was determined that there was no repudiatory breach of contract as a result of the suspension.

The High Court had wrongly come to a conclusion that a requirement for suspension to be reasonable was for it to be “necessary”.

The Court of Appeal considered if the implied term of trust and confidence had been breached, which had an effect on if the suspension was deemed to be justifiable and appropriate, which was a subjective question rather than a legal question.

In a bid to end age discrimination, Labour are proposing to end the £4.35 per hour for under-18s by 2020.  This proposal comes as part of a pledge to increase the national minimum wage to £10 per hour.  Labour states that, for small to medium sized employers to manage such change, it will use fiscal savings to offer monetary support.

Despite their effort to end age discrimination, the proposals have been met with some resistance.  In addition, the independent Low Pay Commission defend youth rates on the basis that they reduce youth unemployment.  They offer an incentive to employ under-18s who are likely to have less experience and lower productivity than older counterparts.  The Institute of Directors highlighted the value in having an independent, objective commission, claiming that politicians are at risk of overlooking the impact of their policies on employers.

The European Court of Justice (ECJ) has decided that, Member States must require employers to set up an “objective, reliable and accessible system enabling the duration of time work each day by each worker to be measured” to ensure compliance with the maximum weekly working time and daily and weekly rest.  The ECJ considered that it was not possible to determine objectively and reliably, either the number of hours worked and when that work was done, or the number of hours of overtime worked without a system in place that enabled the duration of time worked each day by each worker to be measured.  Consequently, making it excessively difficult, if not impossible in practice, for workers to ensure that their rights are complied with, and could compromise the Directive’s objective of protecting workers’ health and safety.

Regulation 9 of the Working Time Regulations 1998 (WTR) requires employers to keep “adequate records” in Great Britain to ensure compliance with the 48-hours limit on the average week and to protect night workers.  However, there is no specific requirement for all daily hours of work to be measured and recorded, nor is there any mention of recording daily or weekly rest periods.  Health and Safety Executive (HSE) guidance states that there is no requirement to keep specific records and that employers may be able to rely on records maintained for other purposes, such as pay.   The ECJ’s judgment raises serious doubt as to whether the record-keeping rules in Great Britain comply with the Directive’s requirements.  

The Where’s Your Head At? Campaign’s petition, which calls for the government to make it a legal requirement for workplaces to have someone trained in mental health first aid, has over 200,000 signatures. This is partnered with a letter to the Prime Minister which has been signed by over 50 organisations, including WHSmith and Standard Chartered.

This comes alongside news from the Institution of Occupational Safety and Health (IOSH) in a report for Mental Health Week (beginning Monday 13 May 2019) that out of 400 employees surveyed, 80% would not discuss their mental health with their employer.  Mental health first aiders will be able to encourage workplace environments that are positive for mental health by giving people a safe space to discuss their mental health and ensuring that they can be directed to relevant mental health services.

As a means of highlighting the need for employers to better cater for expectant employee and new mothers, The Trades Union Congress (TUC) in conjunction with charity Maternity Action publishes guidance on “Pregnancy, breastfeeding and health and safety” to accommodate and raise awareness of protecting women in the workplace.

The guidance promotes for the existing legal protections that protect women in the workplace to be correctly adhered to.  According to the Equality and Human Rights Commission, nearly 50% of mothers stated that either their employers do not initiate discussions about risks or that not all risks were prepared for.  The guidance seeks to equip health and safety representatives with the appropriate tools to ensure that pregnant women and new mothers are confident and satisfied that their needs are being met and risks to their safety are being adequately considered.  The guidance discusses the practicalities of different physical risks to mental considerations.  Also, it discusses the legal implication for employers and different actions they could take to protect their employees.

If you require further information, please follow these links: Pregnancy, breastfeeding and health and safety: A guide for workplace representatives, tuc.org.uk, 1 May 2019 and New Health and Safety guidance for union reps: making workplaces safe for pregnant and breastfeeding women, maternityaction.org.uk, 15 May 2019.

Dr Gregg was suspended on full pay after 2 patients in his care died. A police investigation began, his registration was temporarily suspended and his licence to practise was withdrawn. The trust decided to proceed with its disciplinary proceedings while the CPS were still considering whether to press charges against Dr Gregg. The Trust also sought to stop Dr Gregg’s pay. He brought High Court proceedings for an injunction to prevent the Trust from continuing with the disciplinary proceedings and from not paying him, which was granted.

The Court of Appeal then overturned the interim injunction, specifying that the Trust had not breached the implied term of trust and confidence by not waiting for the outcome of the criminal investigation. In this case, the Trust had stopped Dr Gregg’s pay when his registration to practice was suspended, partly on the basis that he was not ready, willing and able to perform his work. The Court of Appeal agreed with the High Court and found that the suspension of his pay was a breach of his contract of employment. Unless there are exceptional circumstances, or an express contractual right, an interim suspension should not entitle any employer to deduct pay.

Are you a HR Consultant?  Do you provide HR and employment law advice to businesses?  Would you like the comfort of knowing you had a “phone a solicitor” in situations where the advice is complex or the area of law is forever changing? 

If so, Morgan LaRoche Solicitors now offer a monthly telephone advice line for HR Consultants from our three expert employment lawyers.  For a small monthly fee you will have access to a fully qualified employment solicitor to pick their brains whether it be about time limits for tribunal claims, complicated areas such as whistleblowing or just to discuss strategy.

If you need any further assistance we can offer fixed rates for preparation of settlement agreements, to review and draft documents or for tribunal claims.

Contact us now for more information.

Acas has published its latest statistics on early conciliation take-up and success rates covering the period April to December 2018.  Between April and December 2018, the number of notifications received by Acas was 98,143, an increase from 77,167 during the same period in the previous year.  The figures also show an increase in successful conciliation of claims compared to the previous year, with 64% of disputes not progressing to a tribunal claim, compared with 58% in 2017.

If you require further information, follow the link below:

http://www.acas.org.uk/index.aspx?articleid=6688

To assist employers and employees in understanding the potential impact that Brexit may have in their workplace, Acas has published a new guidance outlining possible implications.  The guidance gives advice regarding the steps employers and employees may want to take and consider before the UK leaves the European Union. 

The new guidance explains the potential changes to employment law stemming from the UK leaving the EU, and provides links to the government technical guidance. In addition, it explains the impact of Brexit on EU citizens working in the UK, provides links to government materials on their rights and goes on to offer advice to employers when talking to their employees about how they may be impacted by the UK’s exit.

The guidance confirms that tribunal and court decisions appealed to the European Court of Human Rights will not be impacted by Brexit.

For further information, follow the link below:

http://www.acas.org.uk/index.aspx?articleid=6686&utm_medium=email&utm_campaign=NTL%20April%202019&utm_content=NTL%20April%202019+Version+A+CID_9bdb63d0ec73d4c09861fca9eb6b3a82&utm_source=Acas%20National%20Email%20Marketing%20Live&utm_term=View%20Acas%20guidance%20for%20employers%20and%20employees

The Presidents of the Employment Tribunals in England and Wales and Scotland have issued a joint second addendum to the Presidential guidance on Vento bands for injury to feelings awards in discrimination and whistleblowing claims.

The Vento bands will increase in respect of claims presented on or after 6 April 2019 as follows:

• Lower band: £900 – £8,800.
• Middle band: £8,800 – £26,300.
• Upper band: £26,300 – £44,000.