I ddiwallu anghenion siaradwyr Cymraeg, mae gwefan y Llywodraeth wedi cyflwyno fersiwn Cymraeg o’r ffurflen ET1. Mae’r fersiwn Cymraeg o’r ffurflen ET3 hefyd yn cael ei ddatblygu ar hyn o bryd i adlewyrchu’r galw.

A recent employment tribunal case involving First Essex Bus Limited found that a bus driver was unfairly dismissed for gross misconduct after failing a routine drugs test. The tribunal felt that the employer’s investigation and approach was outside the range of reasonable responses.

The tribunal also noted that the characterisations of gross misconduct was incorrect and found the dismissal to be wrongful.

This case illustrates that employers should be cautious in how they treat drug test results as it is not simply “black and white”. The lack of common sense in the employers draconian approach to their drugs policy was not acceptable.

New advice has been published by ACAS on performance management and the fair treatment of staff. The advice based on research which found that 1 in 4 organisations adapt their performance management systems to staff members with disabilities. The research also discovered that 1 in 10 employers described their performance management system as demotivating for staff and additionally 1 in 10 employees use their systems for planning and monitoring training and development.

The new ACAS guidance suggests the active consideration of workforce diversity and Equality Act provisions when assessing performance management arrangements. For example, employers should be proactive in making reasonable adjustments used by the company are disadvantaged to those employees.

In November 2018, the Women and Equalities Committee launched a full-scale inquiry into non-disclosure agreements (NDA’s) in harassment and discrimination cases, which is a follow on from their sexual harassment in the workplace inquiry. The new inquiry has a broader scope, to focus on the use of NDA’s in all or any form of alleged harassment and discrimination, not just that of a sexual nature. It will cover a much wider scope of actions such as pregnancy discrimination and racist treatment.

The committee are looking to discover whether certain types of harassment or discrimination NDA’s are used more, whether NDA’s should be abolished entirely or restricted and if any safeguards can be developed to halt the unethical use of NDA’s.

The new Act, Parental Bereavement (Leave and Pay) Act 2018, aims to create a statutory right for employed parents to, paid time off, work following the loss of a child under the age of 15.

The government has proposed the definition of “bereaved parent” as meaning all legal parents including all legal guardians or individuals with specific court orders. The regulations would allow for a single block of 2 weeks to be taken or two separate 1 week blocks and should be taken within 56 weeks of the date of the child’s death.

The Government is currently preparing draft regulations setting out the boundaries and details of the new statutory right, which is likely to be in effect by 2020.

In two recent German cases, the Working Time Directive(WTD), was interpreted by the European Court of Justice on the basis that a worker does not automatically lose their accrued but untaken holiday entitlement at the end of relevant period.

However, the WTD does allow the loss of holiday entitlement if the employer can show it enabled the worker by providing sufficient information, to take their holiday entitlement before the end of the relevant period. Also, if a worker has not lost their holidays, accordingly they are entitled to pay in lieu of entitlement on termination.

There is still no UK case law to date on this subject, so it will be interesting to see whether these decisions generate UK litigation and how the courts will interrupt it. For employers, they are being encouraged to take reasonable and sufficient steps to promote workers to take their leave.

Acas has produced new guidance for employers and employees regarding job references, and it has been compiled with regard to the most frequently asked questions on the Acas helpline.

The guidance explains what references are and provides information on what should be included, when they are required and how to deal with common problems.

Amongst others, the questions that Acas have addressed include whether an employer can put negative things in a reference, whether an employer can refuse to give a reference and whether an employer can include sickness absence rates in a reference.

A link to the guidance can be found here: http://www.acas.org.uk/index.aspx?articleid=5072

The Court of Appeal (COA) has recently decided that a company was vicariously liable for an assault carried out by one of its managing directors on an employee, which left the employee seriously injured.

The High Court dismissed the claim on the basis that the managing director was not acting in the course of his employment when he assaulted the Claimant – it was concluded that there was an insufficient connection between the assault and the position in which the managing director was employed to render the managing director liable and, accordingly, the claim was dismissed.

The COA overturned the High Court’s decision, concluding that when considering whether something is “in the course of employment”, it is necessary to view the employment in question broadly and it is wrong to focus on what the employee is expressly authorised to do in their job. The COA confirmed that in applying the test, the court had to make an evaluative judgment in resolving a question of law based upon primary facts found. In this case, the assault occurred during an unscheduled drinking session, which although was not a seamless extension of the company’s Christmas party, the managing director had chosen to wear his metaphorical “managing director’s hat” by delivering a lecture to his subordinates about his rights as managing director.

Although agreeing with the High Court, the COA pointed out that the facts of this case were particularly unusual, and it should not be taken as authority for the proposition that employers become insurers for violent acts by their employees. Liability will not arise just because there is an argument about work matters between colleagues which leads to an assault, even when one colleague is more senior than another. The combination of circumstances in this case would arise very rarely.

Statistics from April to June 2018 have been published by Acas on its early conciliation (EC) service. According to the statistics, the total number of EC notifications received had increased by 53% to 33,171 from 21,647 in the equivalent quarter of 2017.

The statistics also demonstrate a growth in the proportion of EC cases which proceeded to an employment tribunal claim – 23% of EC cases going forward compared to 17% in the same quarter for 2017.

The Employment Appeals Tribunal (EAT) has upheld a tribunal decision regarding an employee’s written notice – that it related to an anticipated internal change of jobs and was not notice of resignation from employment.

It was upheld by the EAT that the words that were used in the notice had not been clear and unambiguous. Furthermore, the context in which the words had been used meant there were “special circumstances” which required them to be construed objectively.

It was asked by the tribunal how the employee’s notice would have been construed by a reasonable recipient in light of those circumstances known to the recipient at the time of receiving the notice. It was concluded by the tribunal that the employer had misunderstood the employee to be resigning from employment. When the employer subsequently treated the employee’s notice as a valid resignation, it dismissed her.

Employers should therefore treat employee’s notice carefully.

The Disclosure and Barring Service (DBS) has announced their email address is due to change. The previous email address was “dbs.gsi.gov.uk” and has now changed to “dbs.gov.uk”. The DBS has set up an email divert for March 2019 however, their Chief Information Officer is urging people to update their contact list.

CIPD and Mind have published a guide for managers to assistance improvement in their responses to issues of mental health amongst employees. The new guide replaces the former guide and has noted that only 32% of organisations have line managers specifically trained in mental health report. This is disappointing as 22% of organisations long term sickness absences, is primarily triggered by mental health. The guidance aims to help managers identify warning signs as presently, around 42% of employees consider their managers incapable of spotting the warning signs of mental health. The guidance also includes helpful tools and resources to support struggling employees effectively.

https://www.cipd.co.uk/Images/mental-health-at-work-1_tcm18-10567.pdf

The Government has published a report on National Minimum Wage detailing evidence on compliance and enforcement for the current year. The report has highlighted the following:

– A record breaking £15.6 million of underpayments benefiting over 200,000 workers.

– For the period of commencing August 2017 until July 2018, 678 employers were identified under a “naming and shaming” scheme for National Minimum Wage underpayments.

– The HMRC pilot scheme identified £246,000 in arrears being identified for 689 employees.

A survey undertaken by Slater and Gordon has revealed that 37% of 2000 women have been sexually harassed at work, in the last year alone. While a further 39% of women have witnessed incidents of sexual harassment, whilst 52% state that no steps were taken by employers to tackle a sexual harassment policy in their workplace. The most shocking news emerging out of the research is 79% of victims did not report their harassment, while 20% believe it to be the “norm” at work.

Despite the survey identifying harassment as mainly unreported, an alternative survey by the Faucett Society has shown a dramatic shift in public perception of sexual harassment. With over half of men and women aged 18-24 describing their views on acceptable behaviour as having changed.

The Information Commissioners Office (ICO) announced in September that they have commenced formal enforcement action against 34 organisations for failure to pay their data protection fee.

The new fee introduced under the General Data Protection Regulations 2018 (GDPR), requires organisations who process personal data to pay a fee to the ICO unless the organisation qualifies under an exemption. The fees go towards ICO’s protection work and it’s ever expanding services introduced by GDPR.

The 34 organisations include both public and private sectors including the NHS and certain government departments. The ICO has even hinted that more organisations are to be issued formal enforcement action.