Acas have published its new guidance on hybrid working this summer. Hybrid working, where staff can work flexibly between their workplace and a chosen remote location, such as their home, is becoming an increasingly popular option for organisations, considering over 50% of employers who answered Acas’ survey said they anticipated more employees would be requesting flexible working.

The guidance aims to help employers decide if hybrid working is a suitable option for their workforce. To ensure hybrid working policies are fairly introduced, the guidance provides advice for employers, including:

• Consulting with staff on practicalities to be considered before hybrid working is introduced
• Supporting and managing staff whilst they are hybrid working
• Treating all hybrid workers fairly
• Creating a hybrid working policy
• Dealing with staff requests on hybrid working

The guidance sets out a number of factors for employers to consider when reviewing hybrid working for their organisation, such as technological issues, health and safety, data privacy and protection, cybersecurity and remote team communications.

For more information, please review the guidance on the Acas website: https://www.acas.org.uk/hybrid-working 

The Department for Business, Energy and Industrial Strategy (BEIS) have recently reported that 191 employers had underpaid their staff. From 2011 to 2018, HMRC found that the breach of national minimum wage law resulted in over 34,000 workers being denied a total of £2.1 million from their employers.

John Lewis had the largest underpayment to their workforce, totalling £941,355.67 to 19,392 of their staff. The Body Shop, Pret A Manger and numerous football clubs were also named for their underpayments.

Following the announcement by BEIS, all employers named on the list have paid back what their staff were owed and have been fined £3.2 million.

Employers may not intentionally underpay their staff. For example, the employers named by BEIS made underpayments for reasons including:

• Incorrect deductions from wages, including uniforms and expenses
• Not paying staff for their time spent working, including overtime
• Paying the wrong apprenticeship rate

This serves as a reminder to employers to ensure they comply with their legal responsibilities and uphold workers’ rights.

The Information Commissioner’s Office (ICO) has launched a survey to obtain the public’s view of its new data protection and employment practices guidance and products, which will cover areas such as recruitment and selection, employment records, monitoring workers and information on the health of workers. The new guidance is intended to replace the ICO’s existing guidance, such as the current employment practices code, supplementary guidance and quick guide (which have not been updated since the introduction of the Data Protection Act 2018).

The ICO are hopeful that the new guidance will assist staff and employers dealing with personal data to comply with current data protection laws. It is hoped that the guidance will reflect how working life has changed over recent years, including the impact of technological advancements such as artificial intelligence on the decision-making process for worker, and the COVID-19 pandemic resulting in the increase of hybrid working and access to health data.

The ICO are seeking a number of views on the new guidance and the deadline for responding is midnight on 21 October 2021.

A new online tool has been published to assist expectant parents check their eligibility and pay entitlement under the shared parental leave and pay scheme. The process of checking eligibility, entitlement and notifying their employer they are using the tool will only take 5 minutes.

The new tool, which is designed to assist both expectant parents and employers alike, is expected to help new parents share time off in the child’s early stages of life. The tool is a welcome addition by the government, as the current scheme has recently faced criticism, with claims including that it is not fit for purpose.

The new tool can be accessed on the following website: https://www.gov.uk/plan-shared-parental-leave-pay

John Lewis plans to launch an equalised parental pay policy from autumn 2021, in what is claimed to be a first in the UK. Any employee who has been employed by John Lewis for one year when they have their baby will be offered 26 weeks’ paid leave. This will consist of 14 weeks of full pay and 12 weeks of 50% contractual pay.

John Lewis have also promised greater support to employees who lose pregnancies, which will include two weeks’ paid leave and emotional support from the company’s free counselling and mental health services.

A new consultation will be launched by the government to decide whether flexible working should become the default position. The idea, which has been referred to in the Employment Bill proposal, was also first mentioned in the Conservative Party’s 2019 election manifesto. A government advisory group has recently recommended that this should be the case, however, it has been clarified that it will not go as far as providing staff with a legal right to work remotely from home.

Recently in the House of Commons, it was reiterated by Paul Scully MP that the government will introduce legislation offering greater protection against pregnancy and maternity discrimination “when parliamentary time allows” or “as soon as parliamentary time allows”. The government have not yet confirmed when the changes will be made and details of the new ‘Employment Bill’ are yet to be released. However, the legislation will ensure that once new mothers have returned to work following the end of their maternity leave, they will have their redundancy protection period extended for six months. Similar protections will be provided to parents taking adoption leave and shared parental leave.

According to the 150 business leaders and organisations who responded to CIPHR’s survey, 68% of those who currently pay their staff a ‘location allowance’ are considering whether or not to cut the salary of those staff who choose to work from home, even though half of the 150 business leaders and organisations had admittedly made savings through home working. A staggering 86% revealed that they had already postponed, temporarily reduced or stopped other location premiums and payments such as the London Living Wage. From the survey, 39% of employers were more inclined to cut the wages of fully remote workers compared to the 29% of employers who would consider cutting the wages of hybrid workers.

The findings of a separate survey revealed that one-third of employers expected their full-time staff to return to the office full-time post-pandemic.

In response to a consultation on sexual harassment in the workplace that took place between February and October 2019, the government has pledged the following:

• A provision will be introduced to impose a duty on employers to prevent sexual harassment at work. Employers will only have a defence if they have used all reasonable efforts to prevent the harassment.
• Another provision will be introduced to impose a duty on employers to prevent third-party harassment at work. Again, employers will only have a defence if they have used all reasonable efforts to prevent the harassment.
• Discussions will take place to consider extending the enforcement powers of the Equality and Human Rights Commission (EHRC) within sexual harassment cases. The EHRC will also be asked to publish a statutory code of practice, alongside practical guidance for employers, on sexual harassment in the workplace.
• Consideration will be given to extending the time limit (most likely to six months) for bringing any claims under the Equality Act 2010, not just for harassment claims.

A teacher who was charged, but not prosecuted, with possession of indecent images of children, has been fairly dismissed for “some other substantial reason” (SOSR).

Whilst the teacher acknowledged a computer in his home was found to contain indecent images, he claimed he was unaware of how the images were on his computer. His employer concluded that there was not enough evidence to say whether the teacher was or was not responsible for the images. Due to safeguarding concerns regarding the children and the added reputational risk, the teacher was dismissed.

The teacher brought a claim for unfair dismissal against their employer, however this did not succeed in the employment tribunal as the dismissal was held to be for some other substantial reason and within the band of reasonable responses. This decision was overturned by the Employment Appeal Tribunal (EAT), who decided that the teacher’s dismissal was unfair. The EAT held that the teacher’s dismissal was unfair as the teacher was dismissed for misconduct, and the employer did not have a reasonable belief of the teacher’s guilt.

However, the Court of Session has overturned the EAT’s decision and has upheld the employment tribunal’s decision – that the teacher was fairly dismissed. Since the dismissal was based on SOSR, the employer did not need a reasonable belief as to whether the teacher committed the offence. It was enough that the employer lost its trust and confidence in the teacher based on the strong probability of the teacher being an offender.

An employment tribunal that decided a gender critical belief (including a belief that sex is immutable and should not be conflated with gender identity, and that trans women are men) was not a philosophical belief under the Equality Act 2010 has had its decision overturned by the EAT. The EAT only decided on the preliminary issue of whether the claimant’s belief qualified for protection, and have yet to determine the claim’s merits (such as whether the claimant was unlawfully discriminated against).

The fifth criterion in Grainger v Nicholson requires the belief to be worthy of societal respect, comply with human dignity and not undermine the fundamental rights of other individuals. The tribunal held that the claimant’s gender critical belief failed this fifth criterion. But according to the EAT, it would take a very serious and extreme belief, gravely violating fundamental rights, to fail the fifth criterion. The EAT did not agree that the claimant’s gender critical beliefs satisfied this high benchmark, since the claimant’s beliefs were held to be shared amongst wider society and did not undermine the rights of trans people.

It was also held that the tribunal should not have relied on the fact that the claimant held an absolutist belief. Despite how strongly the belief is held, this does not warrant the removal of protections.

The judgment was not a part of the transgender debate, and the judgment does not deny trans people from discrimination or harassment protections.

Acas has recently published its data on early conciliation (EC) and employment tribunals for England, Scotland and Wales covering April to December 2020.

The data reveals that:

• From July to September 2020, (EC) notifications increased by 17% compared with March to June 2020. EC notifications then stabilised from October to December 2020.
• From October to December 2020, the number of cases decreased by 69% compared with July to September 2020.
• 40% more ET1 receipts were recorded from July to September 2020 compared with April to June 2020 and October to December 2020.
• Over 60% of EC notifications from April to December 2020 did not progress to an employment tribunal claim.
• A minimum of 77% of all ET1 receipts did not progress to a hearing. Open track cases, such as discrimination and whistleblowing, were found to be the most likely to progress to a hearing.

In each quarter, Acas settled nearly 70% of cases that failed to progress to a hearing. The 30% or fewer remaining cases were withdrawn.

In the wake of the COVID-19 pandemic and our response to minimising social contact and travel, participation in WhatsApp group chats has soared. This has inevitably included work colleagues using the social messaging platform to keep up morale and a sense of team spirit in the absence of the usual level of face to face contact.

Whilst such team chats may have started out as a forum for sharing cartoons and comments of exhausted, multi-tasking parents and DIY haircuts, some employers have regrettably discovered that WhatsApp can be a fertile ground for ‘banter’ which borders on or blatantly amounts to harassment and bullying of colleagues.

What are your responsibilities and potential liabilities as an employer, if a group of employees set up a WhatsApp Group on their personal mobiles and make derogatory comments about, for example, a colleague’s disability, religion or sexual orientation? Can and should you discipline them? Can the subject of the comments bring a discrimination claim under the Equality Act 2010 against you as the employer? Even though the messaging was conducted on the employees’ personal mobile phones outside of working hours and is considered by the perpetrators to be ‘just banter’?

The answers to these increasingly common questions depend on the quality and robustness of your policies and training on equality and diversity, social media, harassment and bullying. To put it bluntly, if you haven’t put in the groundwork before your employees’ Whatsapp banter crosses the line into discrimination, then at best you’re responsible for instigating grievance and disciplinary proceedings and at worse, facing costly settlement negotiations or an uncomfortable few days in an employment tribunal. Tribunal claims can come from both directions if your policies haven’t spelled out to the harasser that discriminatory social media and messaging activity won’t be tolerated. You could be stuck in the middle of a discrimination claim to the left and an unfair dismissal claim to the right.

If you are giving evidence in tribunal against any such claims, you want to be in a position to show the dates on which the employees involved received training on your HR policies, particularly on equality and diversity. Such evidence may prevent a claim even getting off the ground. Any defence to such claims will also be bolstered by well drafted policies on equalities and diversity, harassment and bullying and social media use.

For more information please contact Sophie Ray, Employment Solicitor at Morgan LaRoche on [email protected]

With the UK’s first ever extreme heat warning employers are under increased pressure to ensure the safety of their workers.

By working in high temperatures, employers may notice staff have a lack of concentration, there is an increased risk of accident, reduced productivity and an increase in “sunbathing sickies”.

Although there is no maximum working temperature set by the Health and Safety Executive, to minimise the negative side effects employers can take a number of precautions.

 For employees working predominately indoors, employers could consider the following:

• Access to cool water.
• Adequate ventilation.
• An increased number of rest breaks.
• A relaxation of formal dress codes.
• Boost morale by providing low cost treats, such as ice creams.

For employees working outdoors, employers should also consider the direct exposure to sunlight. Precautions can be taken including:

• Modification of the working routine to avoid heavy physical work being undertaken during the most intense hours of sunlight.
• Allowing an increased number of breaks in the shade.
• Workers should be encouraged to prevent exposure to the sun by wearing long sleeves and trousers and/or loose clothing.
• Wearing hats with wide brims or flaps to protect exposure to the neck and ears.
• Encouraging workers to use suncream of a high factor.

Ultimately, by keeping staff cool, motivated and engaged, employers can capitalise on the feel good factor and reduce the impact on absence and productivity.

For further information please contact Hannah Belton, Director, on 01267 493130 or [email protected].

With the ongoing Euros 2020 tournament and with England reaching the quarter finals, employers may find that their HR departments are busier than ever. Alongside additional annual leave requests, managers may also have to deal with increased absence levels and misconduct. But how should an employer manage these tricky situations, particularly during the current climate of hybrid working?

Policies

Sickness absence policy:

Ensure that you have an up-to-date sickness absence policy. It may be worth considering setting out your organisations’ expectations and any allowances during big events, such as the Euros, to help explain to staff what is and isn’t acceptable behaviour. A reminder – perhaps by way of a group email to all employees – of the policy is also useful.

Reviewing your policy:

A review of your organisation’s sickness absence policy prior to major events, such as the Euros, is always beneficial to ensure that it is still effective for the way in which your organisation operates.

It is crucial that you ensure that your policies and procedures do not put your organisation at risk of any form of discrimination. Therefore, it is important to consider the following points when conducting your review:

• Ensure it is clear on whether or not employees will receive pay during a period of sickness.
• Check that it specifies that employees must either provide a self-certification form or a fit note (as applicable).
• Consider expressing that employees must agree to see occupational health/a GP.
• Specify the consequences when an employee fails to follow the procedure.
• Include a requirement for a return to work meeting.

Flexible working:

If your organisation hasn’t already implemented a flexible working policy, now may be the time to do so. This may help avoid having to deal with the negative side of such events, such as unexpected absences.

You may also wish to consider implementing a policy that covers employees taking time off for events such as the Euros.

Employee code of conduct:

Including an employee code of conduct in your staff handbook will assist when dealing with misconduct. The code will set out guidelines on both acceptable and unacceptable behaviour in the workplace.

Annual leave requests

Employers will need to ensure that they are prepared to deal with several considerations regarding annual leave, such as being able to accommodate late annual leave requests, being asked by an employee to cancel a holiday  or even a parent asking to book annual leave to cover holidays which cannot be agreed  as there are too many employees already on annual leave watching the football.

Managing absence

Employers may find that they face an increased level of absence during the Euros. You may even be able to notice patterns from some members of staff, such as certain employees calling in sick the day after a big game or employees whose annual leave request was declined calling in sick on the day that they made their request.

Employees who fail to turn up to work without any contact will be deemed as being on unauthorised absence. Check your sickness absence policy if this occurs, as many policies specify unauthorised absence as a disciplinary matter.

Some employees will attempt to use other excuses to justify their non-attendance (“my child is unwell”, “my car has broken down” etc) and in these circumstances, ensure you keep records of issues such as how the employee made contact, was it the day after a big game, and was it compliant with your absence reporting procedure.

There are a number of ways to manage such occurrences, including:

 If suitable for your organisation, flexible working hours can promote a good work/life balance and even be a morale booster.

• Permitting employees to watch a major event and requiring them to make the time back (this could also prevent them from doing so in secret).
• If possible and financially viable, installing a big TV screen for events to enable employees to watch whilst taking a break (as long as this complies with current restrictions on numbers and social distancing).

• Use positive engagement, such as permitting football shirts to be worn, organising a sweep stake or even authorising early starts and late finishes (and vice versa) on the day of a match that includes a country associated with employees.

Keeping staff safe

It is important to remember that not all restrictions have been lifted, and if your organisation arranges a work-social at this time, the employer will hold responsibility for the safety of all employees and any event must meet government COVID rules.

If some staff have voiced their concern regarding a colleague attending events and then coming in to work without isolating, you may consider providing COVID tests for any employees attending the workplace.

 

For further information please contact [email protected].