Provisional figures for the tax year 2016-17 demonstrate that employers are spending more on staff benefits than previous years, with a £200 million increase since tax year 2015-16. The most pobular benefits include:

• Private medical insurance
• Private dental insurance
• Company car
• Fuel allowance

In light of this, a report from the HMRC has revealed that the actual number of individuals receiving such benefits is decreasing.

It has also been suggested that the changes to salary sacrifice schemes since April 2017 could lead to benefits of this kind being considered uneconomical.

The Public Heath England and Business in the Community have recently published a toolkit to raise awareness of domestic abuse and also reduce the stigma surrounding the topic.

The aims of the toolkit include:

• Advice on creating a supportive working environment for employees
• Encourage victims to communicate
• Identify any potential issues
• Advice on referral of victims to organisations that can provide the appropriate help.

Click here to access the toolkit.

 

An independent review of the Modern Slavery Act 2015 has been instructed by the government. The review is indented to identify the social and economic costs of modern slavery and also reveal any areas that require improvement. Figures provide that in the year to March 2017, it is estimated that the cost of modern slavery to the UK was in the region of £3.3 billion and £4.3 billion.

The protection provided to victims has increased since the introduction of the Act due to greater powers of the police and law enforcement. It is also a requirement that any company with an annual turnover of £36 million is to report on methods used to prevent slavery within their supply chains.

The review will last until March 2019.

Acas has recently produced two sets of guidance for employers in relation to overtime and suspensions.

Overtime Guidance

The guidance provides that it is important to detail any overtime arrangements in employment contracts and handbooks and highlights the importance of keeping detailed records of any overtime worked and any time off taken in lieu.

Click here to access the guidance.

Suspension Guidance

The guidance provides advise as to when a suspension would be considered appropriate, for example:

• Serious allegation of misconduct
• Medical reason for suspension
• Risk to new/expectant mothers in the workplace.

Suspension should not be used automatically in matters concerning disciplinaries and alternatives should always be sought in the first instance, for example:

• Employee working under supervision; or
• Changing the role/hours/workplace of said employee.

Click here to access the guidance.

The Women and Equalities Committee has recently published a report on sexual harassment in the workplace. The report provides that a more active role is required from the government, employers and also regulators and also states that the law needs to be amended in certain areas such as the control and the regularising of oppressive non-disclosure agreements.

Click here to read the report.

In the previous year, according to figures provided by Pinsent Masons:

• HMRC has reported an increase of 134% in reports of whistleblowing in relation to National Minimum Wage failures;
• 6,027 reports were received in the year to 31 March 2018 in comparison to 2,573 in 2016-2017;
• The number of investigations opened by HMRC therefore increased by 43% last year;
• £15.6 million of owed pay was identified.

It is suggested that the increase may be as a result of HMRC’s new online reporting system. The number of online reports has increased from 437 in 2016-2017 to 4,161 in 2017-2018.

The Women and Equalities Committee has recently published a report on the rights of fathers at work. The report calls for improvements to be made by the government to the rights of fathers at work, for example:

• Removing the qualifying period for paternity leave;
• Increasing statutory paternity pay to 90% of earnings (however capped for high earners).

The government responded to the report as follows:

Paternity leave and pay

Following the reports recommendation to make paternity leave a day one right, the government provided that it is unlikely to follow the recommendation, however, would consider further views in an upcoming Maternity and Paternity rights survey.

Shared parental leave and pay

The report calls for an additional 12 weeks paternal leave which would replace the shared parental leave system. The government provided that further research is required before they could be in a position to follow the recommendation as the shared parental leave system is still rather new.

Time off and flexible working

The report called for paid time off for fathers to attend antenatal appointments, which the government rejected.

In relation to flexible working, the government’s response was that it would await the response of the Maternity and Paternity Rights Survey to consider whether ‘paternity’ should be a protected characteristic.

 

The risks charities can face in employment law

What people regularly forget is that a charity is a business like any other. Charities therefore deal with a multitude of individuals- from directors and staff to trustees and volunteers.

Charities are placed in a position of trust and therefore may be greatly criticised as a result of any unfortunate incidents such as claims of unfair dismissal or discrimination.

Employees

As with other sectors, employees are fully protected with all of the UK’s employment laws (although some have certain qualifying criteria).  This includes, for example the right:

• not to be unfairly dismissed;
• to national minimum wage, rest breaks and statutory sick pay;
• to take family friendly pay e.g. maternity pay; and
• to receive certain periods of notice on termination and redundancy pay.

 At the very start of employment, employees should understand:

• Their individual role;
• The terms of their contract; and
• What is expected of them from the outset.

There is a requirement to issue employees with a contract of employment within 8 weeks of starting work.  Charities should also have accurate and clear policies and a comprehensive staff handbook to cover everything that an employee needs to know.

Furthermore, having a thorough internal dispute handling system in place is essential and can prevent issues from escalating and this will stop things getting out of hand and ending up in a tribunal and the public eye.

Casual staff

Are casual staff employees? 

Most organisations are of the view that casual staff are not employees.  However, what happens in practice must be carefully considered to decide whether in fact they satisfy the test of being an employee.

Things that point towards a casual member of staff being an employee are, for example:

• They provide personal service and cannot insist a substitute carries out the work instead.
• The Charity has an element of control over their hours or their work.
• There is a pattern of work always being offered by the charity and always accepted by the staff member.

If casual staff do satisfy the test of actually being an employee then they also have the benefit of full employment law protection regardless of how many hours they work.

Volunteers

Although there is no legal definition of volunteering, it usually involves an element of unpaid work (except for expenses which are properly incurred) for the benefit of a third party. 

Whether or not a volunteer can actually claim they were in fact an employee (and have the benefit of the full protection of employment law) depends on the factors referred to above in respect of casual staff.

However, where there is no obligation on the charity to provide work and for the volunteer to accept it, expenses are only out of pocket expenses and where there is a clearly drafted volunteer agreement in place it is likely that the volunteer is not an employee. 

If the volunteer is not an employee, in the eyes of a tribunal, they would be termed a worker.

A worker is not entitled to certain rights such as family friendly leave, unfair dismissal and statutory minimum notice.  However, a worker is still entitled to the following:

• Paid annual leave;
• Rest breaks; and
• Discrimination and whistleblowing.

There have been several cases where volunteers have successfully brought claims of unlawful discrimination usually linked to the termination of their volunteering.

Trustees/Board Members

The Employment Appeal Tribunal has set out a number of factors to be considered in deciding whether trustees/board members are also employees:

• Was there a right to payment? If so: Was payment fixed in advance or did it relate to the amount of work done? Was it paid by way of salary? How much was paid? How was it treated for tax and national insurance purposes?
• The extent and weight of the duties performed.
• Whether the individual was subject to close control.

Depending on the relationship trustees may be employees or workers and therefore benefit from employment law protection.

Directors

A director is not automatically an employee of the company, although they can be an employee if they enter into a contract of employment. Executive directors are usually employees of the company, while non-executive directors are more likely to be self-employed. However, this is only a general rule and employment status will depend on the assessment of all relevant factors referred to above.

The task of managing a charity’s workforce can be complex because, as well as having directors and staff, there are volunteers and trustees who all have their own rights and needs.  It is important that an organisation is aware of each individual’s rights.

For further information please contact the Employment Team.

The Women and Equalities Committee has recently launched an inquiry into the enforcement of the Equality Act 2010. 

Following recent inquiries, such as into sexual harassment in the workplace; a discovery was made that there have been problems in relation to the enforcement of the rights contained in the Equality Act 2010. This therefore led to the committee making recommendations for improvement. Such recommendations include:

• Extending time limits for bringing certain Employment Tribunal Claims; and
• Increasing the intervention by EHRC and also regulators.

Following on from the inquiries, the aims of the committee includes:

• Collection of evidence in relation to the enforcement of the Equality Act; and
• Assessing the effectiveness of the enforcement of the Equality and Human Rights Commission.

The committee has also requested written evidence on:

• Whether the public understand how to enforce their statutory rights;
• How effective and accessible the Tribunals and other enforcement systems are and any suggested improvements;
• How effective are the remedies and or penalties in cases of discrimination; and
• Whether such enforcement of the Equality Act will be successful in achieving a change on the large scale.

The Court of Appeal has overturned the decision of an Employment Appeal Tribunal in relation to national minimum wage for workers that sleep-in on shifts. The Court of Appeal decided that workers that are required to sleep at or near their place of work to be able to assist if necessary were available for work instead of actually working.  As a result, workers were only entitled to be paid minimum wage for the period by which they were required to be awake to work, and not for the entirety of the shift that they were required to sleep in. This appears to be good news for Employers.

The decision of the Employment Appeal Tribunal that there had been no dismissal when an employee had been told that the decision to dismiss him had been revoked following an appeal under the disciplinary procedure, has been backed by the Court of Appeal. The decision was made despite the appeal only addressing one of the two disciplinary allegations.

The leading judgement stated that after a succesful appeal the employment relationship should resume to its previous state meaning that the dismissal would be treated as having no effect.  Therefore the employee could not bring a claim of unfair dismissal.

 

The latest figures from the Office for National Statistics show a significant fall in the number of days employees are taking off work due to sickness. In 2017 employees took an average of 4.1 days off compared to 7.1 in 1993. This gradual decrease began in 1999.

It could be as a result of a healthier life expectancy but also could be as a result of people still going into work when they are ill.  Presenteeism is sometimes not a good thing if it means spreading infection or staff not being 100% fit.

During a debate at the House of Commons, Minister for Women, Victoria Atkins reported the importance of providing support for women going through menopause. A recent survey published that 31% of women experience reproductive health problems. 

What does the law say?

The case law on menopause in the UK is focussed on sex discrimination and disability discrimination.

• Sex discrimination. An employee was dismissed following a final warning for poor performance. She had previously given her manager a letter from her doctor explaining that she was “going through the menopause which can affect her level of concentration at times”. The manager chose not to carry out any further investigations of her symptoms, in breach of its performance management policy. The tribunal upheld her claims of direct sex discrimination and unfair dismissal and held that the manager would never have adopted “this bizarre and irrational approach with other non-female-related conditions”. The manager also wrongly decided that his wife’s experience was apparently relevant evidence for his employees.

• Disability discrimination.The employee was found to have been unfairly dismissed and reinstated to her role with back pay and injury to feelings compensation. The judge found that she had been dismissed “because of something arising in consequence of her disability”. She suffered from transition symptoms which included heavy bleeding (requiring her at times to work near a bathroom as she needed to change her sanitary towel every 30 minutes) as well as stress, memory loss and other symptoms. Her employer managed the requisite reasonable adjustments well. However, she could not recall if her tablets had been placed in a jug and there was a risk that two male colleagues had drunk from that jug. She was accused of lying, bringing the company into disrepute and she was dismissed. It was decided that her employer had failed to protect her when, during the course of its investigating and in making the decision to dismiss, it did not consider that her “conduct was affected by her disability”. Her memory loss and confusion were in fact caused by her disability (which was in turn the result of her transition).

Possible future claims

In addition to the above claims, the other types of claims that could arise as a result of treatment of a woman in transition include:

• Indirect sex and disability discrimination if, for example, a uniform policy is inconsistent with the need for cooling clothes or hiding sweat patches.
• Sex, disability and age-related harassment if she is subjected to unwanted conduct which violates her dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for her.
• Failure to make reasonable adjustments to the workplace (if her conditions amount to a disability). Steps that an employer might consider include flexible working, later starts to manage insomnia, access to cold water and ventilation and managing symptoms such as memory loss.

What can employers do?

• Educate staff about the menopause.
• Apply a fair sickness absence policy which accommodates women experiencing transition.
• Improve the working environment including access to fans, good ventilation, the ability to control temperature, having clean and comfortable toilet facilities near work stations with appropriate sanitary disposal bins and feminine hygiene products and also have access to female-only showers if possible.

In a recent case, the Employment Tribunal decided that a hospital trust fairly dismissed a consultant orthopaedic surgeon with a previously clean disciplinary record as a result of a number of issues of misconduct, where no single issue amounted to gross misconduct.

The facts

Mr M was a consultant orthopaedic surgeon for 15 years until he was dismissed for gross misconduct. Prior to the disciplinary proceedings that led to his dismissal, Mr M had an unblemished disciplinary record with no previous warnings. 

During his employment new Department Rules and Responsibilities (the DRR) were introduced and consultants were informed that their compliance with the DRR would be monitored. An investigation was subsequently carried out by an external HR consultant. The investigation found that there had been non-compliance with the DRR by Mr M.

Disciplinary proceedings against him were postponed pending further investigation. An investigation into 22 further charges against Mr M was carried out. During the investigation Mr M was not suspended and continued to practice.

Mr M was summarily dismissed for gross misconduct and his appeal was not upheld.

The majority of the appeal panel accepted that the disciplinary panel reasonably believed that Mr M could not be relied upon to change his behaviour in the future and the decision to dismiss was within the range of reasonable responses.

Following an investigation, the General Medical Council decided that no action should be taken against Mr M.

The Tribunal considered that he had been fairly dismissed and Mr M appealed to the Employment Appeal Tribunal (EAT).

The EAT upheld the decision of the Tribunal on the basis that a “series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence between employer and employee” could mean that a summary dismissal was fair.

This case illustrates that a series of acts of misconduct can, taken together, amount to gross misconduct in some circumstances. However, employers should always exercise caution before reaching a decision to dismiss an employee with no prior warnings where there is no clear act of gross misconduct.

A toolkit has recently been published by Public Health England and Business in the Community in order to aid to employers with substance abuse in the workplace. The toolkit was published as a result of research showing that employee absence and lack of productivity as a result of substance misuse cost employers £5.3 billion.

Another survey by the Home Office concluded that nearly 9% of those aged 16-59 took a form of drugs in the year prior to the survey being taken.

The toolkit provides assistance to help employers deal with substance misuse in the workplace in following ways:

• Leadership- ensuring that adequate training has been provided to combat substance misuse.
• Provide reasonable adjustments for staff that are required to take time off as a result of substance misuse.
• Encourage employees to consider whether their consumption is putting their health at risk.

Link:https://wellbeing.bitc.org.uk/sites/default/files/bitc_phe_drugs_alcohol_tobacco_toolkit_-_final.pdf

Acas has recently provided new guidance in relation to discrimination on the grounds of religion and belief in the workplace. The guidance provides a brief description of religion and belief discrimination and provides that:

• Employers should take a flexible approach with regard to religious dress codes;
• Carefully consider annual leave requests for religious reasons; and
• Understand that fasting has an impact of performance and provide reasonable adjustments.