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Constructive dismissal can occur when there’s no suggestion of employer’s intent to end employment relationship

In Singh v Metroline West Ltd , the Employment Appeal Tribunal (EAT) determined that, with regard to a claim for constructive dismissal, a fundamental breach of an employment contract could occur even where an employer’s actions did not suggest an intention to end the employment relationship.

The case related to the withholding of contractual sick pay to an employee, Mr Singh, by Metroline West Ltd (‘Metroline’). Company sick pay was withheld as Metroline believed that Mr Singh’s absence from work was an attempt to avoid a scheduled disciplinary hearing. Statutory sick pay was paid to Mr Singh instead. In response, Mr Singh brought a claim for constructive dismissal, contending that the failure to pay him the contractual rate of sick pay was a fundamental breach of contract.

The Employment Tribunal (ET) determined that there had been a breach of contract by Metroline, albeit not a fundamental breach. Metroline had contractual rights to suspend Mr Singh without pay for an illicit absence. Additionally, his contract allowed company sick pay to be withheld if an investigation found that an absence from work was not for legitimate reasons. Still, the ET considered that Metroline’s aim in withholding contractual sick pay was to encourage Mr Singh’s involvement in the disciplinary process. The ET did not believe that it implied a desire to not be bound by the employment relationship.

The EAT disagreed with the ET’s judgment and upheld Mr Singh’s appeal on this issue. It was considered that the ET erred in law in deeming that a fundamental breach of contract could only occur if there was an intention to not be bound by a contract in such a way as to end an employment relationship. Rather, a unilateral decision to reduce pay to which an employee is entitled is a fundamental breach of contract.

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New regulations expand categories of those able to sign ‘fit notes’

From 1 July 2022, new regulations allow pharmacists and other healthcare professionals to sign sick people off work. The new regulations will amend previous legislation to permit registered nurses, occupational therapists, pharmacists and physiotherapists to sign statements of fitness for work.

Additionally, the regulations newly define a “healthcare professional” as either a doctor or one of the four additional professions now allowed to sign fit notes.

The stated aim is to free up GPs’ time so that they can deal with other matters.

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Study finds new mothers can lose almost £70,000 over 10 years

A Social Market Foundation (SMF) study has discovered that new mothers typically suffer a financial loss of £66,434 in pay over the course of a decade in comparison to childless women.

The monetary loss figure gauges the income a woman would have earned if her career progression had emulated similar women without children. The statistics are based on new SMF analysis of a dataset that tracks the experiences of approximately 30,000 people over many years.

Considering women who were 25 to 35, the SMF discovered that the typical woman who remained childless from 2009/10 onwards would have seen her earnings rise by around a third over the following decade. In contrast, a woman who gave birth to a first child in 2010/11 would be earning 10% less at the end of the relevant period.

A key contributory factor in the divergence of incomes was the high cost of childcare in Britain. With families typically paying 7% of their income towards it, the UK continues to have some of the most expensive childcare in the world. This factor means that it is often not possible for parents to work as much as they would like. In turn, this leads to reduced earnings, stalled wage growth, and a lack of career progression.

The SMF have announced the creation of a cross-party commission into the effect of poor childcare provision on wages and poverty.

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Long Covid-19: statistics demonstrate frequency of condition in the UK

The ONS has released statistics confirming that an estimated 2 million people (3.1% of the UK population) self-reported experiencing long Covid symptoms as of 1 May 2022.

Long Covid symptoms are defined as those symptoms continuing for more than four weeks after the first suspected coronavirus infection that could not be explained by anything else.

Of those self-reporting Long Covid, 1.4 million stated that the condition had negatively impacted on their day-to-day activities and 398,000 said they had been “limited a lot” in their ability to go about their day-to-day activities.

There were a number of common symptoms self-reported, with these including:

  • Fatigue (affecting 55%)
  • Shortness of breath (32%)
  • Cough (23%), and;
  • Muscle ache (23%)

Given the above statistics, employers should be mindful of the potential impact of Long Covid on the workplace, especially given the recent Employment Tribunal case of Burke v Turning Point Scotland. This saw the employment tribunal conclude that an employee with long COVID symptoms was disabled within the meaning of section 6 of the Equality Act 2010.

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Employees’ experience of race-related matters following murder of George Floyd

Two years on from the murder of George Floyd in the USA, Ipsos has published research into the experience of UK employees following the incident. A representative sample of 1,652 workers aged 16-75 were interviewed with 405 interviews coming from those with an ethnic minority background

The survey saw 41% of workers confirm that their organisation’s handling of race-related issues had been impacted by the murder. In contrast to the survey cohort as a whole, 57% of those from ethnic minority backgrounds stated the incident had impacted the way their company handled race-related matters at least a little. Also, despite workers’ beliefs that employers were willing to take action, less than half (43%) considered that this commitment had been lasting.

It was notable that employees representing different ethnicities demonstrated differences in their opinions of the steps companies had taken to create environments of inclusivity for those of different racial/ethnic backgrounds. For example, 61% of white working Britons agreed that their company was taking steps to engender an inclusive environment. However, this figure fell to 53% for ethnic minority workers. Similarly, 73% of white working Britons felt they could safely be themselves at work whilst the figure for those from ethnic minority backgrounds was 60%. Less than half of ethnic minority workers (49%) felt valued at work whereas 63% of white working Britons did.

Less than half (45%) of workers agreed that the leaders of their organisation were racially diverse. This suggests there is room for improvement in this regard. Furthermore, workers from an ethnic minority background were much more likely to report having encountered micro-aggressions in the workplace, with those describing their ethnicity as Black reporting a higher percentage of incidents than the ethnic minority cohort as a whole.

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Hybrid working: report finds no perfect approach

An academic team at the University of Leeds has published a guide to effective hybrid working. The Future Workplace project outlines research examining Covid 19’s effect on employee and employer views on the definition of a workplace. In addition, the report offers advice for employers who may wish to establish hybrid working environments.

The research categorised five classes of hybrid working. These are:

  • Free hybrids;
  • Timeless hybrids;
  • Nomadic hybrids;
  • Fixed hybrids; and
  • Balanced hybrids.

The report notes that each type of working will have particular physical space implications for an organisation.

In a study of worker attitudes, the project surveyed 759 UK office workers and discovered that 72% preferred to work at the office at least once a week. 33% also stated that they did not have a dedicated workspace within their home. Less than 10% of respondents were trained for hybrid working and less than 20% of office spaces were said to be adapted to support hybrid working. A higher proportion (41%) were conscious of a formal hybrid working policy at their place of work.

The report advises that employers’ communication regarding hybrid working practices should be carefully calibrated to ensure tensions within the workplace are mitigated. It suggests that there cannot be a single policy that suits all employees within an organisation. An effective workplace utilizing hybrid working will require adaptions of working culture and procedures, organisational objectives and IT systems.

Helpfully, the report proposes methods that organisations may utilise to alleviate pressures or dangers that could arise upon implementation of a hybrid working policy. Guidance is given on how to construct a hybrid policy, with regard given to physical space within the workplace, in addition to overseeing employees.

The advice on workplace communication and methodologies is all the more welcome given that a recently published CIPD survey of employers has demonstrated there is a lack of consensus amongst employers regarding the continued use of hybrid working policies.

The second part of the report is due to be published in September 2022.

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Government Announces Changes to Apprenticeship Programme

Alex Burghart, the then Minister for Skills, revealed in May 2022 that the UK Government was focussing on simplification of the current apprenticeship programme from August 2022. The Government is seeking further improvement to the current system via implementing measures to reduce bureaucratic burdens, make the system as simple and user-friendly as possible and giving apprentices the finest possible experience.

Four improvements were mentioned in the announcement. These included:

  1. Making it simpler for apprentices to accelerate their apprenticeship by placing a greater emphasis on provider assessments of learning and experience.
  2. Introducing a uniform baseline for off-the-job training, which will stipulate the minimum number of hours that a full-time apprentice must spend in training.
  3. A change to English and maths requirements for Level 2 apprentices who start with the lowest level of prior attainment in English and maths.
  4. Providing a more efficient payment service for providers by reducing the data need for payments, as well as improving financial reports.

Further to the above, the 2022 to 2023 funding rules will apply to apprenticeships starting between 1 August 2022 and 31 July 2023. Further information can be found at Apprenticeship funding rules – GOV.UK (www.gov.uk).

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CIPD Report on zero-hour contracts

The CIPD published a report on 11 August titled Zero-hours contracts: Evolution and current status, which reflects how zero-hour contracts are used and sets out their benefits and disadvantages for both employers and workers. The report follows a survey of employers which suggests that the number of workers engaged on zero hours contracts is small, accounting for about 3% of total employment.

The report makes 4 recommendations. In summary, these are:

1. To introduce a right for variable hours workers to request a more stable contract or working arrangement after six months of employment;

2. Create a statutory code of practice on the responsible management of zero hours workers, including a requirement to pay compensation if workers’ shifts are cancelled at short notice;

3. Improve labour market enforcement, including through the creation of a single enforcement body and a stronger focus on supporting employer compliance; and

4. Abolish worker status to help clarify and enhance employment rights for zero hours workers and more widely.

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Annual leave for part-year workers

In a recent case, Harpur Trust v Brazel, the Supreme Court (“SC”) held that the annual leave entitlement under the Working Time Regulations 1998 (“WTR”), being 5.6 weeks, should not be reduced pro-rata for “part-year” workers.

“Part-year” workers are those who are employed for the whole year but only work some weeks, and not others.

In this case, Ms Brazel was a music teacher who was employed for term-times only. She was paid for the hours she taught which varied from week to week. She was required to take her annual holiday during the school holidays, and her holiday pay was paid to her in three equal payments at the end of each school term. Following the Acas guidance, the school calculated Ms Brazel’s earnings at the end of each term and paid her 12.07% of that figure (the “Percentage Method”).

Ms Brazel argued that her holiday entitlement should be paid at the level of her average earnings over the 12-week period immediately before holiday was taken – if she worked 32 weeks of the year, this would equate to 17.5% of her annual earnings. Ms Brazel claimed unlawful deductions from wages for the difference

The SC held that entitlement to 5.6 weeks’ holiday still applies to workers on a permanent contract, regardless of how much work is done in that time. The SC also rejected the Percentage Method, and as such, it should no longer be relied on. The calculation exercise required by regulation 16 of the WTR is straightforward and should be followed, even if it results in part-year workers receiving a higher proportion of their annual earnings as holiday pay.

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MPs and Unions call for maximum workplace temperatures

38 MPs have signed an early day motion which calls on the government to introduce legislation to ensure employers maintain a reasonable temperature in the workplace.

The motion proposes a maximum temperature of 30°C, or 27°C for workers doing strenuous work and a requirement for employers to introduce effective control measures like ventilation or moving staff to cooler areas away from windows and heat sources.

Similar calls for legislation have come from the GMB and TUC unions. The TUC has called for a requirement to stop work if indoor temperatures hit 30°C, or 27°C for strenuous jobs – whilst the GMB wants the maximum indoor temperature to be 25°C.

Currently, there is no guidance for a maximum temperature in the workplace however, an approved code of practice does set a limit on minimum workplace temperatures of 16°C, or 13°C if the work involves severe physical effort.

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Doctor not discriminated against for refusal to use transgender pronouns

The Employment Appeal Tribunal upheld a decision that a Christian doctor, “Dr M” was not discriminated against for refusing to address transgender people by their chosen pronoun.

The tribunal considered whether a Dr M’s belief that a person cannot change their sex/gender at will was capable of protection as a religious or philosophical belief under the Equality Act 2010, and whether conduct (because the individual would not agree to use a trans person’s chosen pronouns was discriminatory on grounds of belief).

Dr M worked as a health and disabilities assessor and was required to assess claimants for disability-related benefits, including conducting face-to-face assessments and writing reports. However, he expressed that he objected to using pronouns or titles inconsistent with a person’s birth gender. This was inconsistent with the workplace policies and procedures, including the diversity and equality policy. After conducting meetings with Dr M, where he confirmed that he could not in good conscience use a trans person’s chosen pronouns, it was decided that he could not stay in his role as a health and disabilities assessor.

It was held that whilst the doctor’s beliefs were protected, the EAT agreed with the employment tribunal findings that there was no direct or indirect discrimination or harassment against the doctor.

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99% of fathers want better paternity rights

A survey of 7,763 fathers and other parents entitled to paternity leave by the maternity rights charity, “Pregnant then Screwed” has revealed that eight out of ten fathers do not believe that their employer provides sufficient support for fathers at work.

97% believed that two weeks’ statutory paternity leave was insufficient and 99% said the government’s paternity offering should be improved. 80% of the fathers surveyed said that their employer offered no enhanced paternity leave.

25% of fathers expecting a baby within the next 6 months had not heard of shared parental leave.

The charity has called on the government to increase parental leave by providing a minimum of six weeks’ parental leave paid at 90% of salary for all new parents.

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Tribunal erred when applying worker test

In a recent case, Sejpal v Rodericks Dental Ltd the Employment Appeal Tribunal held that an employment tribunal failed to correctly apply the statutory test for worker status when it concluded that a dentist was not a worker.

Mrs Sejpal worked as a dentist in a practice owned by Rodericks Dental Ltd (RDL) from August 2009. Her contract had a substitution clause where Mrs Sejpal was to use her best endeavours to arrange a locum in the event of her failure to “utilise the facilities for a continuous period of more than 14 days”. If she failed to make such arrangements, then RDL had the authority to arrange a locum on her behalf. Any locum had to be acceptable to RDL.

Mrs Sejpal went on maternity leave in 2018, and during this period RDL announced the closure of the practice where Mrs Sejpal worked. Mrs Sejpal alleged that her contract was terminated while others were redeployed and brought a claim in the employment tribunal alleging that the termination of her contract was discrimination because of pregnancy or maternity.

At a preliminary hearing, an employment tribunal decided that Mrs Sejpal was not a “worker” nor an “employee” as she was not a person employed under a contract personally to do work. As a result, the employment tribunal dismissed her claims.

On appeal, it was held that the tribunal had failed to correctly apply the statutory test for worker status when it concluded that Mrs Sejpal was not a worker. It was noted that the starting point when determining such cases should be whether there was a contract, they should then consider the true nature of the agreement.

The locum clause relied upon was not an unfettered right of substitution – due to the requirement that any locum be acceptable to RDL. As a result, the contact required some personal service.

The appeal was therefore allowed.

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Publication of new Bill of Rights 2022

The government has introduced the Bill of Rights 2022 to Parliament which seeks to repeal the Human Rights Act 1998 and create a new domestic human rights framework.

The Bill seeks to give effect to the same rights as the Human Rights Act 1998 (“HRA Rights”) and makes it unlawful for any public authority to act in a way which is incompatible with these rights. A court may also make a declaration of incompatibility in respect of primary or subordinate legislation that is incompatible with a HRA Right.

The Bill also imposes a higher threshold for victims of alleged breaches of HRA Rights in order for permission for their claim to proceed, namely that they have suffered a “significant disadvantage”.

The Bill is currently at the second reading stage in the House of Commons, and will have to be approved by both the Commons and the House of Lords before receiving royal assent.

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Claims for menopause-related issues rise by 44%

The Menopause Experts Group has found that there has been a 44% increase in Employment Tribunal claims citing the menopause. An analysis of court records revealed 23 cases cited the menopause in 2021, in contrast to 16 cases in 2020. In addition, referral to the word “menopause” increased by 75% in tribunal documents. Menopause Experts Group has suggested that employers should offer their workforce training about symptoms, signs and side-effects of the menopause.

These findings follow a report recently published by the House of Commons Women and Equalities Committee titled “Menopause and the Workplace” which emphasises that there is much more that employers should do to help their workforce. They recommend solutions such as practical adjustments, additional flexibility, and fostering greater respect and understanding of the menopause within the workplace.

On a greater scale, the report calls on the government to appoint a Menopause Ambassador to champion good practice, produce model menopause policies and trial specific menopause leave with a large public sector employer.

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Guidance for employers and managing employees ahead of the Football World Cup 2022

Given the Football World Cup’s popularity as a global sporting event (and the involvement of the Wales and England national teams) it is advisable for employers to take time to prepare effective policies and procedures prior to its commencement. The competition is scheduled to take place between November 21 and December 18 this year.

Before the previous World Cup in 2018, the Advisory, Conciliation and Arbitration Service (‘Acas’) gave advice to employers on how they could approach the employment challenges that could arise in light of the competition. These guidelines remain relevant in 2022.

Pertinent advice for employers to bear in mind includes the following points:

  • Time Off – It is suggested that employers, where possible, offer flexible working options around this period. There should also be acknowledgment that it may sometimes be difficult for staff to book time off in advance. Acas has previously suggested that employers may seek to allow staff to take their lunch breaks during match times. Taking this further, employers could choose to screen matches in the workplace.
    • Note that it is advisable that a consistent approach to other major sporting events should be taken when granting leave. Not everyone will be interested in the Football World Cup. Such persons may prefer other sports and are likely to expect similar treatment when their preferred sporting tournament appears on the sporting calendar.
    • Similarly, to ensure a harmonious working environment, it is important for management to set employees’ expectations as to whether they are likely to be allowed time off work or not. It may be pertinent to inform workers that there is no legal requirement for employers to give time off for any sporting fixture.
  • Social Media – Employers may wish to remind their employees of their social media policies as there could be a spike in social media use throughout the World Cup period.
    • Additionally, employers may want to train and/or instruct their human resources teams on appropriate and effective employee monitoring and enforcement of the social media policy during this time.
    • Despite the above, businesses should remain mindful to avoid imposing unnecessary and disproportionate restrictions on social media usage. If disproportionate restrictions are imposed, this could weaken employee morale, without any benefit to the company in terms of protecting its productivity or reputation.
  • Sickness Absence and Attendance – Employers should be aware that sickness absence and late attendance may increase throughout this period. It may therefore be advisable for absence and attendance to be more carefully monitored.
    • Employers should remind employees of their procedures for reporting sickness. If there is no set procedure for this, one should be put in place and communicated to employees.
    • Additionally, employers should remind their workforce of their policy on unauthorised absence. Normally this will mean that failing to turn up for work or leaving early without a reasonable explanation is a disciplinary matter.
  • Alcohol and Substance Misuse – Employers should review their substance misuse policy and restate its provisions to employees. If there is no policy on substance misuse, one should be drafted and relayed to staff.
    • For example, if there is a policy on not drinking alcohol during office hours it would be good practice to remind staff of this so they are clear on the rules and are not tempted to breach them, whether intentionally or inadvertently.
  • Employee Interactions – Employees may become emotionally invested in the competition. This could lead to verbal and/or physical altercations.
    • As employers are responsible for preventing bullying and harassment they should ensure they have an anti-bullying and harassment policy and that this is up-to-date. Its provisions, and the consequences of any breach of policy, should be clearly communicated to staff.
    • Furthermore, supposed ‘friendly’ banter can be perceived by some as discriminatory. An employee could feel harassed, especially if someone is making comments about people or players from a different nation. Again. increased awareness of the potential for this to cause issues in the workplace should be facilitated via communication of the business’ discrimination and harassment policy to staff.
  • Optimism and Opportunity – Finally, employers should recognise that the Football World Cup, rather than representing a danger to effective workplace interactions, can be seen as an excellent opportunity for employees and colleagues to connect and for the business to facilitate and embed good working practices. It can provide the real prospect of enhancing teamwork and camaraderie by demonstrating an organisation’s flexibility and support for its employee’s interests, thereby improving worker morale and productivity.
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Flight Cancellations and Delays – What happens when an Employee is stranded abroad

Following the Jubilee weekend and the recent half term holidays, thousands of travellers are thought be stuck abroad due to cancelled flights and delays at airports. These travel disruptions are said to be caused by staff shortages in the industry, following staff cut-backs during the covid-19 pandemic. Below, we take a look at the employment law implications for employers and employees in the event that an employee is stranded abroad.

1. Check the employment contract and workplace policy 

If an employee is unable to come to work it is vital that the employer checks the employee’s employment contract.

2. Wages

Employees are only entitled to be paid wages for work they have done. If employees are unable to attend work and carry out their contractual duties, subject to their employment contract or any workplace policies, the employer is under no obligation to pay them.

3. Can employees request annual leave?

It may be possible to ask the employee to agree to take the time off as holiday (if they have any annual leave remaining).  Most employees would be happy to do this as it means they are still receiving some form of pay.

4. Can we force employees to take annual leave?

Under the Working Time Regulations 1998, employers requiring employees to take holiday must give them at least twice as much notice as the length of that holiday. For example, a requirement to take one week’s leave must be given with at least two weeks’ notice.

5. Remote working

As a result of the covid-19 pandemic, there has been an increase in employees who are able to work remotely. If the employee is able to work remotely during this period and you agree to this, then they should be paid for work done. Employers should take into account data protection issues should an employee work remotely from abroad. If the employee is working in a country outside the European Economic Area, special care will need to be taken to ensure data transfers are complaint with the General Data Protection Regulation.  

6. Disciplinary action

Failing to return from holiday on time may constitute an unauthorised absence.

As with any unauthorised absence, this a potential disciplinary matter and may be cause for an investigation. Following the investigation an employer may conclude that disciplinary action is warranted, however, if the employee has a genuine reason for the unauthorised absence – such as unforeseen travel disruption that is beyond their control, and they made effort to contact the employer to advise them of this, there is unlikely to be a disciplinary case to answer.

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Parent fairly dismissed after refusing to return to work during pandemic

In Rodgers v Leeds Laser Cutting Ltd an employment tribunal ruled that an employee who refused to attend his workplace due to Covid 19 concerns had been fairly dismissed.

The Respondent remained open during the lockdown period and provided staff with details of the safety measures in place. Mr Rodgers notified his manager on 25 March 2020 that he would be staying off work until the lockdown had eased as he had two vulnerable children who he wished to protect. He was dismissed on 24 April and subsequently brought a claim in the Employment Tribunal for automatic unfair dismissal.

The judge found that whilst Mr Rodgers had serious concerns about the pandemic and its potential impact on his family, he did not find the danger in the workplace serious and imminent as he had not mentioned the working conditions to his manager and had driven a friend to hospital whilst he should have been self-isolating.

Mr Rodgers had not taken any steps to raise his concerns to the Respondent and the Respondent had taken all reasonable steps to protect the workplace and in light of the government guidance at the time. As a result, his claim for automatic unfair dismissal failed.

It is important for employers to ensure that they are taking all reasonable steps to protect employees in the workplace.

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Employers report hybrid working increases productivity

New research by CIPD has reported a significant increase in the number of employers stating that home and hybrid working has increased their organisation’s productivity or efficiency, based on a survey of over 1,000 employers.

In December 2020, 33% of employers noted that the new ways of working had increased productivity or efficiency in their organisation – this increased to 41% in October/November 2021.

There was also a decrease in the number of employers that reported negative impacts of home and hybrid working – from 23% in 2020 to 18% in 2021.

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8/10 women receive no support for the menopause at work

A survey commissioned by Channel 4 sought the views of over 4,000 women aged between 45 and 55, and found that 1 in 10 women have left a job due to menopause symptoms and 44% of women said that their ability to do their job had been impacted by their menopause symptoms.

52% of women reported that they had lost confidence at work, and 41% reported that the menopause/menopausal symptoms had been treated as a joke by colleagues.

8 in 10 women reported that their employer had not shared information, provided training or put into place a menopause policy – this is despite evidence that workplace support helps employees who are experiencing menopause.

The Fawcett Society, who conducted the survey, have made it clear that actions to support women with menopause are key to closing the gender pay gap. They also call for legislative reform to protect menopausal women by implementing section 14 of the Equality Act 2010 on dual discrimination so women can bring claims based on age and sex, or by creating a standalone menopause provision.