Category Archive: Employment

Employment Focus | Menopause – a time for transition of awareness within the workplace

Menopause has been a hot topic for some time now for a variety of reasons. It affects 50% of the population, usually between the ages of 45 and 55, and with more employees working through menopause than ever before, it is important for employers to take notice. Nearly three quarters of people experiencing menopause will have symptoms including hot flushes, tiredness, poor memory, concentration problems and bladder issues, as well as symptoms of anxiety, low mood and insomnia. Transgender men and people who are intersex or identify as non-binary may also experience menopause and its associated symptoms.

Menopause has been suggested as a potential reason for driving older women (as well as transgender and non-binary employees) to leave the workforce. We have also seen it cited in an increasing number of Employment Tribunal claims over recent years. In light of this, and the various headlines, we are focusing in on this topic and what employers can do to help.

Why has it been in the news?

Earlier in the year it was in the news due to rising concerns about HRT shortages, with the Government appointing a new HRT Tzar, and introducing temporary rationing to try and resolve the issue.

However, the menopause has been very much in the news over the past year following the launch, in July 2021, of an enquiry into workplace issues surrounding the menopause (the “Enquiry”) by the House of Commons Women and Equalities Select Committee (the “Committee”). This is examining existing discrimination legislation and workplace practices, to consider whether enough is being done to prevent women leaving their jobs as a result of menopausal symptoms or suffering other adverse consequences. This is supported by the Menopause (Support and Services) Bill which had its second reading debate in October 2021.

Earlier this year the Committee heard evidence as to whether the menopause should be a protected characteristic under the Equality Act 2010 (“EqA 2010”) for discrimination claims. It then published the findings of its survey commissioned as part of the Enquiry which, among other things, found that nearly one third of women had taken time off due to menopause symptoms, which included issues with memory or concentration and stress[1].

On 28 July this year, the Committee published a report, ‘Menopause and the workplace’ (the “Report”). Among other things this calls on the Government to immediately commence section 14 EqA 2010 which would allow dual discrimination claims, and to consult within 6 months on making menopause a protected characteristic, including a duty to make reasonable adjustments for menopausal employees.

The current employment law position…

The Health and Safety at Work Act 1974 provides for safe working and states that employers must ensure their employees’ health, safety and welfare at work. This includes employees’ working conditions when experiencing menopausal symptoms.

In terms of protection against discrimination, menopause is not in itself a protected characteristic under the EqA 2010. However, employment tribunal case law demonstrates how an employer’s treatment of staff undergoing the menopause can potentially give rise to claims of sex, age and/or disability discrimination. There have been a number of cases in recent years where employees have successfully brought claims under the EqA 2010, as well as unfair dismissal. Here are some examples:

In the case of Davies v Scottish Courts and Tribunal Services ETS/4104575/17, Ms Davies successfully claimed unfair dismissal and discrimination arising from disability. This was after she had been disciplined and dismissed as a result of peri-menopause symptoms including forgetfulness and confused behaviour which had led to her being accused of lying.

In the case of Merchant v BT Plc ET/140135/11, the Employment Tribunal upheld Ms Merchant’s direct sex discrimination and unfair dismissal claims. She had been 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”. In dismissing her, her manager chose not to carry out any further medical investigations in relation to her symptoms, which was in breach of BT’s performance management policy. The Employment Tribunal held that that manager would never have adopted “this bizarre and irrational approach with other non-female-related conditions”. The manager was also wrong to consider that his wife’s experience was relevant evidence.

In the case of A v Bonmarche Ltd (In administration) ETS/3107766/19 an Employment Tribunal upheld an employee’s claims of sex and age harassment. Ms A had worked in retail for 37 years and was a high achiever. In May 2017 she began to go through the menopause and her male manager would demean and humiliate her in front of younger staff who laughed. Her manager also called her a “dinosaur” in front of customers and continually criticised her unreasonably. She complained to higher management about this, but no action was taken. She suffered a breakdown in November 2018 and her manager was extremely cold and threatening towards her upon her return which ultimately led to her resignation.

In the case of Best v Embark on Raw Ltd ET/3202006/2020, an Employment Tribunal held that an employer violated an employee’s dignity and created a humiliating environment for her at work when he asked her whether she was menopausal after she made it clear she did not want to discuss the topic. As well as making a finding of harassment under the EqA 2010, the Employment Tribunal found that there has been victimisation when Ms Best was accused of moaning and being “paranoid”, “petty” and “obsessed”, given a verbal warning and ultimately dismissed due to the complaints she had raised.

What can employers do…?

The Committee also heard that employees and employers have a lack of clarity of employer’s obligations to employees experiencing the menopause and that increased awareness and guidance of the issues would be helpful. The Committee’s most recent report states that there is much employers should do to help employees, citing solutions such as ‘allowing additional flexibility and understanding, alongside fostering a greater respect and understanding of menopause’[2]. So what can employers do in the meantime?

Supportive environment

Employers should create an open and supportive environment where employees can feel able (if they wish) to speak in confidence about symptoms without embarrassment or negative consequence.

Training

Training staff in order to increase awareness of the menopause and its symptoms for all staff in the workplace will be beneficial, particularly for managers. This will be in relation to the potential impact the menopause can have on work and in dealing with menopause-related issues.

Menopause policy

A clear policy can be implemented in order to raise awareness and discourage discrimination. This can be used to confirm an employer’s commitment to open and honest discussions about the impact of the menopause and to set out type of support that might be available.

Flexible working

Considering allowing individuals to work flexibly when necessary.

We will need to wait and see as to what action is taken in response to the Report, and whether this results in any legislative changes. In the meantime, it is important that employers are aware of the potential discrimination claims that may arise as a result of the treatment of employees experiencing symptoms associated with the menopause. It is increasingly important that employers are aware, together with their staff, of the potential impact the menopause can have.  The Acas guidance ‘Menopause at Work’ can be found here.

If you have any questions or would like any further information in relation to this topic, please contact Catherine Hope or a member of the employment team.

[1] Women and Equalities Committee: Menopause and the workplace survey results (23 February 2022)

[2] Women and Equalities Committee: Menopause and the workplace (28 July 2022)

Managing Unpredictability

For businesses operating in the leisure industry, to say the last 24 months have been turbulent would be an understatement, with Covid-19 and Brexit combining to create significant challenges for operators.

On January 1, 2020, the UK’s departure from the European Union became a reality. Little over two months later, on March 23, the UK went into lockdown as the result of a global pandemic.

These two successive events have really affected the leisure and hospitality industry.

As we move into 2022, the operational difficulties faced by the pandemic are clear. Staffing is sporadic, menus are reduced, outlets are closing, there is a strain covering for absent colleagues and employers need to manage Covid-19 in the workplace and consider how to move forward.

How to keep staff and customers safe?

Whilst it would be hoped workers and customers would take a sensible view if they contract Covid-19, ending free testing and changing statutory sick pay and isolation payments at the same time could create a scenario where individuals, avoid taking tests, don’t communicate a positive test, don’t isolate or unknowingly walk around with the virus.

It is therefore important that employers update risk assessments to reflect the probability that Covid-19 may be coming into the workplace.

Forced vaccinations?

Workers with Covid-19 no longer need to isolate. It may therefore be worth considering a contractual change forcing those with Covid-19 to remain at home, on pay to avoid spreading the virus.

It is important to assess how this will work in practice, for example, how long will the isolation period be, what pay will employees get whilst isolating and how they will evidence having Covid-19?

How to entice applicants to the industry?

As a consequence of Brexit, workers no longer have freedom of movement. Employers need to sponsor individuals to work in the UK who are not settled workers or who do not have some other immigration permission allowing them to work in the UK.

This has naturally had a significant impact on recruitment in the industry and can be seen by the number of unfilled posts. In December 2021, there were 163,000 unfilled posts in the leisure industry, a marked increase from 75,000 unfilled posts in December 2019.

One of our national clients, Motel One, has seen its non-UK national workforce reduce from 60 per cent to 30 per cent. That being said, its chain of hotels is expanding across the globe and while applications are reduced, calibre remains high. So, it may not be all doom and gloom.

So, what can you do?

Consider paying above the National Living Wage to attract applicants. The job site Indeed reported that wages in the leisure industry have increased by 4.6 per cent and employers need to remain competitive.

Also, engage workers on a guaranteed hours contract, with an option for overtime rather than a casual worker contract. Whilst the flexibility of casual arrangements can be beneficial, the certainty of hours provides security which is attractive to all in uncertain times.

What if I cannot provide work for the full workforce?

Unfortunately, in the last 24 months, restructures and redundancies have been commonplace. A restructure is not a temporary measure, it imposes a permanent change and so you may want to consider other avenues first. Check if your contracts permit lay-off or as an alternative staff may be amenable to a temporary change to their contract if it protects the job role longer term.

If redundancies do become necessary ensure that you follow a fair and transparent process and be mindful that 20 or more dismissals from the same establishment within a 90-day period will trigger collective consultation obligations.

Article from our North East Leisure Supplement 2022, produced in conjunction with Sanderson Weatherall.

Angela Carver Associate in Employment at Sintonsangela.carver@sintons.co.uk 0r 0191 226 7824.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 35

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 35’ – with Angela Carver and Catherine Hope. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following questions:

  • Can I dismiss on the spot with less than 2 years’ service?
  • Manual right to work checks and the statutory excuse defence
  • Do I have to give a reference?

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 34

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 34’ – with Keith Land and Ailsa Hobson. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following questions:

  • Is there a requirement for an irreducible minimum obligation to accept/offer work when considering worker status?
  • How do you identify a potential comparator where this is required in discrimination cases? – Part 2

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Employment Law E-Bulletin – Issue 81

  • Ali v Heathrow Express and Redline Assured Security Ltd [2022] EAT 54 – Conduct may not be classed as harassment if there was no intention
  • Covid-19 – Living with Covid-19 in the workplace from April 2022
  • Mr R Rimal v BSS Associates Ltd 2204538/2021 – Failing to provide a contract of employment can increase compensation awards

 

Ali v Heathrow Express and Redline Assured Security Ltd UKEAT/0105/19 – Conduct may not be classed as harassment if there was no intention

The claimant, Mr Anis Ali, worked as a security guard at Heathrow airport (“First Respondent”. Redline Assured Security Ltd (“Second Respondent”), was responsible for security checks at the airport which involved creating and leaving suspicious objects to test how the security officers responded to such threats. This would then allow analysis to be undertaken to identify any weaknesses and the necessary improvements to be made. In this instance, a test was carried out using a bag containing a box, some electric cabling and a visible piece of paper with the word ‘Allahu Akbar’ written in Arabic. Mr Ali, who was a Muslim, received an email with the images of the testing which was circulated by the First Respondent. He claimed that this associated Muslims with terrorism and therefore amounted to direct discrimination and harassment.

Under section 26(1) of the Equality Act 2010 (“EqA 2010”) harassment occurs when an individual engages in unwanted conducted relating to a protected characteristic (in this case religion or belief) towards another individual and that conduct has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

In the first instance, the Employment Tribunal decided that the conduct by the Second Respondent amounted to neither direct discrimination nor harassment. In terms of harassment, in all the circumstances, it was not reasonable for Mr Ali to perceive the conduct as having the effect required under 26(1) EqA 2010. Mr Ali should have understood that the Second Respondent was not seeking to associate Islam with terrorism. The item was used in the context of recent incidents in which the phrase had been used by terrorists, and the Second Respondent produced the item based on possible threats to the airport.

Mr Ali appealed against the Employment Tribunal’s decision in relation to the harassment claim, stating that this was either perverse or insufficiently reasoned. The Employment Appeal Tribunal dismissed both grounds of appeal. It held that Mr Ali’s perception was just one of the matters for the Employment Tribunal to consider when considering whether the conduct amounted to harassment under the EqA 2010. It held that the conduct ‘related’ to religion rather than being ‘on the grounds of/because of’ Mr Ali’s religion. Mr Ali should have appreciated or reasonably appreciated its purpose and intention.

Points to note:

This decision highlights the importance of context when it comes to concluding the perceived effect of conduct on an individual and whether this is reasonable. Here the conduct was found not to have been directed at the claimant because of his religion and it was held that he should have appreciated the reason for it.

Covid-19 – Living with Covid-19 in the workplace from April 2022

From 1 April 2022, the health and safety requirement for every employer to explicitly consider Covid-19 in its risk assessment was removed. The Government has now put the onus on employers to take responsibility and to have the autonomy to make an assessment based on their particular requirements and circumstances. The Working Safely During Coronavirus (COVID-19) has now been replaced with new guidance from 1 April 2022 – ‘Reducing the spread of respiratory infections, including COVID-19, in the workplace’. The guidance includes the symptoms to look out for, what to do if a member of staff has symptoms of a respiratory infection (including COVID-19), actions to reduce the spread of respiratory infections (including COVID-19) and management of members of staff who are at risk of serious illness from COVID-19.

Although the Government has now removed the requirement to explicitly consider COVID-19, employers will still need to consider their statutory and common law health and safety duties.

Mr R Rimal v BSS Associates Ltd 2204538/2021 – Failing to provide a contract of employment can increase compensation awards

The claimant, Mr Rimal, was employed by the respondent, BSS Associates Ltd (“BSS), as a Senior Accountant for five years from 1st March 2016 until 30th June 2021. In June 2021, he received his P45 from BSS which confirmed his employment would be ending at the end of June 2021. This did not contain the reasons why his employment would be ending. Mr Rimal subsequently contacted BSS to request the reasons why he had been dismissed. This was met with an unhelpful response from BSS which did not clarify the reason. Mr Rimal brought claims for unfair dismissal, the wages owed to him for June 2021, holiday pay and notice pay.

The Employment Tribunal (the “ET) noted that Mr Rimal was dismissed by BSS without any disciplinary process and that BSS failed to follow the Acas Code of Practice on disciplinary and grievance procedures. More importantly, BSS had failed to make any attempt to comply with any legal requirements when dismissing Mr Rimal.

Additionally, the ET found that BSS had not provided Mr Rimal with a written statement of employment particulars during his employment. Most notably, the ET decided to increase the award for this specific failure from two weeks’ wages to four, because it held that it was just and equitable to do so. This was because, as a firm of professionals, BSS was used to dealing with legal rules in its business and use to instructing other professionals such as lawyers. The starting point for an award where there has been a specific failure to provide written particulars of employment is a minimum of two weeks’ pay. The ET may award the higher amount (four weeks’ pay) if it considers it just and equitable in all the circumstances, as it did so in this case.

All other claims succeeded against BSS and Mr Rimal was awarded £36,664.76.

Points to note:

Although this is a first instance decision and therefore not binding, it is an important reminder that the ET will take into account the type of business/organisation a respondent is when considering what is ‘just and equitable’. Here, the fact that BSS was used to dealing with legal requirements was a factor taken into account, and ultimately led to increased damages being awarded against it for failure to provide written particulars of employment.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 33

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 33’ – with Keith Land and Catherine Hope.

These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following questions:

  • If an employer dismisses a disabled employee, but fails to make a reasonable adjustment during that process, must that render the dismissal unfair?
  • How do you identify a potential comparator where this is required in discrimination cases?
  • Should an employer who has a practice of giving time off in lieu (TOIL) pay for accrued TOIL on termination?

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 32

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 32’ – with Keith Land and Angela Carver.

These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following questions:

  • Do I pay a bonus to an individual on sick leave?
  • Do I need to offer a self employed role to an individual at risk of redundancy?
  • How can I minimise harassment in the workplace?

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Whistleblower receives £1.25m settlement and apology

A former government vet, Dr Tamara Bronckaers, resigned from the Department of Agriculture and Environment (“DAE”) following concerns she raised about animal welfare and traceability in the meat supply of livestock markets. In September 2021 an industrial tribunal in Northern Ireland found that she had been constructively dismissed and the DAE had initially appealed. However, the DAE dropped its appeal earlier this month and Dr Bronckaers received a £1.25m settlement and an apology.

In summary:

  • Dr Bronckaers worked at the DAE for 19 years and was an expert on livestock legislation. She identified serious failings in animal welfare at livestock markets and failings which allowed livestock to be deleted from sections of the tracing systems used to track livestock (animals with fewer moves are more valuable).
  • This could subsequently affect the traceability of meat and monitoring of disease in cattle.
  • Livestock were kept overnight at markets without the necessary bedding, water and food.
  • Concerns were reported to colleagues, including her line manager which was met with no action. Dr Bronckaers was persistent in raising the concerns with emails ignored
  • The tribunal found she was professionally ignored and excluded by her line manager
  • It was also found that behaviour towards Dr Bronckaers was intimidating and dismissive towards her as a professional
  • It was held she was subjected to detriment on the grounds of having raised protected disclosures and unfairly dismissed which was automatically unfair as she was dismissed due to raising protected disclosures

This is a useful reminder that there is no limit on the amount that can be awarded in cases of unfair dismissal as a result of a protected disclosure, which this settlement sum will have taken into account.

If you would like any further information in relation to this topic, please contact a member of the Employment team.

Employment Law E-Bulletin – Issue 80

  • Kocur v Angard Staffing Solution Ltd UKEAT/0105/19 – An agency worker under the Agency Workers Regulations 2010 does not have the right to apply for a directly employed vacancy with the hirer
  • Covid-19 – temporary Statutory Sick Pay provisions revoked from March 2022
  • Waters v The Mote Cricket Club [2022] EAT 28 – A worker operating through own business was not entitled to holiday pay as he was not a worker or employee

 

Kocur v Angard Staffing Solution Ltd UKEAT/0105/19 – An agency worker under the Agency Workers Regulations 2010 does not have the right to apply for a directly employed vacancy with the hirer

The Court of Appeal has held that an agency worker did not have the right to apply for a directly employed vacancy with a hirer, but simply had to be given the same information that was shared with internal candidates.

The Agency Workers Regulations 2010 (“AWR” 2010) is intended to give effect to the Temporary Agency Workers Directive (2008/104/EC) (the “Directive”). Regulation 13(1) of the AWR 2010 is intended to implement Article 6(1) of the Directive and is a right that temporary agency workers are eligible for from day one of an assignment. It provides that: “An agency worker has during an assignment the right to be informed by the hirer of any relevant vacant posts with the hirer, to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer … the hirer may inform the agency worker by a general announcement in a suitable place in the hirer’s establishment.”

The claimant, Mr Kocur, was employed by Angard Staffing Solutions Ltd (“Angard”). Angard was a wholly owned subsidiary of Royal Mail providing workers to Royal Mail, enabling it to respond to the fluctuating demand for postal workers. Mr Kocur was given regular work with Royal Mail, and Angard determined his work and conditions of employment. He alleged breaches of the AWR 2010, specifically relating to the advertisement of internal vacancies. Internal vacancies were advertised internally and put up on the noticeboard and offered to Royal Mail operatives in permanent posts first. Agency workers were not eligible to apply for the posts until they were advertised externally. However, when they were advertised externally, they were then in the pool of competition with all other external applicants.

Mr Kocur argued that regulation 13 of the AWR 2010 had been breached as he had not been able to apply for internal vacancies as permanent workers were able to. In the first instance, an Employment Tribunal held the provision under the AWR 2010 not only included the right to receive the same level of information as directly recruited employees, but also the right to apply and to be considered for internal vacancies in the same way. However, the Employment Appeal Tribunal (“EAT”) disagreed, stating that this did not extend to the right to apply for internal vacancies. It was sufficient if agency workers were informed of the relevant vacancies even if they were not given the same opportunity to apply for them.

The Court of Appeal reaffirmed the EAT’s position. It stated that if the AWR 2010 intended to include the right to apply for a vacancy it would have stated this and that it would have included information as to how this should be implemented.

Points to note:

This decision acknowledges the Directive’s position, that agency workers are not, in every way, comparable with permanent workers. It is useful confirmation for employers that regulation 13 of the AWR will be complied with where agency workers are notified of and provided with information about vacancies on the same basis as directly recruited employees.

Covid-19 – temporary Statutory Sick Pay provisions revoked

In response to the Covid-19 pandemic, the Government made some changes to the legislation concerning Statutory Sick Pay (“SSP”) to allow for individuals to be deemed to be incapable of work and therefore entitled to receive SSP where they were self-isolating or shielding.  These changes disapplied waiting days where an individual’s incapacity for work was related to COVID-19 so that SSP was available from the first day of incapacity.

As of 25 March 2022, the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2022 revoked these changes. This means that to be eligible for SSP individuals must now be sick or incapable of work, meaning that those who are asymptomatic or only have very mild symptoms will no longer be eligible for SSP even where they test positive. In addition, the entitlement to SSP no longer starts from day one of an employee’s absence relating to Covid-19 but has reverted back to the fourth day of absence.

Waters v The Mote Cricket Club [2022] EAT 28 – A worker operating through own business was not entitled to holiday pay as he was not a worker or employee

An Employment Tribunal (“ET”) held that the claimant, Mr Waters, was not an employee or worker of The Mote Cricket Club (the “Club”), but in business on his own account. Mr Waters was offered a contract by the Club on a contractor basis.

Mr Waters had his own gardening business which he had set up in 2011. The Club engaged his business in relation to the upkeep of its cricket pitches. Under the terms of the contract, 60 hours of work per week was required during the summer months, 40 of which had to be carried out by Mr Waters personally. Mr Waters attempted to renegotiate the terms against the Club and brought a claim against it when he was unsuccessful. The Club terminated the contract. Mr Waters pursued claims for holiday pay and notice pay on the basis that he was a worker or employee due to the control that the Club had over his work. However, at a preliminary hearing the ET held that he was not a worker or employee. A number of findings contributed to this conclusion, including, amongst other things, that Mr Waters was not under any control or supervision, he was expected to provide his own equipment from time to time, and he engaged other individuals to provide work under the contract with the Club.

Mr Waters’ appeal was dismissed by the EAT. It was found that although he was sometimes required to carry out additional work, this was not a key factor in determining whether or not he was a worker. Even if a person enters into a contract where it might be necessary to perform additional work for which there will be no further renumeration, this is consistent with someone who is a self-employed person in business on their own account. The EAT held that the ET had been entitled to find there were no fixed start and finish times which might be common in employment, and that there was also no requirement for Mr Waters to do the work personally. This work could be performed by a member of his team. Ultimately, the EAT held that there was not the type of control or monitoring that you would find with someone who was not in business on their own account.

Points to note:

This judgement is another reminder that the question of employment status is very fact specific. Courts will consider the reality of the working arrangements, as well as the terms of any written contract. Here Mr Waters was already running his own business when he contracted with the Club.

It is extremely important to ensure that engaged individuals have the correct label that truly reflects the relationship with an organisation. Getting it wrong can bring exposure to a number of employment tribunal claims, as well as tax and national insurance liabilities.

Discrimination compensation – update on the guidelines for injury to feelings awards

Guidelines for the amount of compensation to be awarded for injury to feelings in discrimination claims have been significantly updated. Unlike unfair dismissal compensation, which is limited to financial loss, discrimination compensation can also cover non-financial loss. In most cases, this will include an injury to feeling award. The leading case of Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102 set out three bands for the potential awards for injury to feelings in discrimination claims. Regularly referred to as the ‘Vento bands’, these include a lower band, middle band, and top band which outline the amounts available for compensation depending on the seriousness of the case.

The Presidents of the Employment Tribunals in England & Wales and in Scotland have now issued updated guidance which amends the bandings, taking into account inflation. For claims presented on or after 6 April 2022, the bands will be as follows:

  • a lower band of £990 to £9,900 (less serious cases);
  • a middle band of £9,900 to £29,600 (cases that do not merit an award in the upper band);
  • an upper band of £29,600 to £49,300 (the most serious cases); and
  • the exceptional cases will be capable of exceeding £49,300

However, claims presented in Scotland will remain subject to the bands in paragraph 12 of the Presidential Guidance issued on 5 September 2017.

If you would like any further information in relation to this topic, please contact a member of the Employment team.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 31

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 31’ – with Keith Land and Catherine Hope.

These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following questions:

  • What pay is an employee entitled to when they are self-isolating without symptoms?
  • Can an employer force an employee to tell them who their new employer is going to be?
  • Can an employer require an employee to use annual leave during a phased return?

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Leading Employment seminar returns

The concept of the ‘new normal’ in working arrangements post-pandemic will be explored in an upcoming event.

Employment specialists from Sintons, together with Michael Page Recruitment, will offer insight and expertise in how businesses can best manage working arrangements in 2022 and beyond.

‘A New Normal for the Workplace’ will look at the benefits and pitfalls of agile working, the process of formalising new working arrangements and the difficulties of resuming a pre-2020 working environment.

The seminar is the latest from Sintons’ employment team, and follows a series of hugely successful events – held online during lockdown, and more recently in-person – which have attracted professionals working in employment and HR from across the country.

It will be held on April 7, from 8am to 10.30am, at the Vertu Motors Arena in Newcastle.

Keith Land, head of employment at Sintons who is regularly hailed as one of the leading experts in his field in the North, will be among the speakers at the seminar.

“The pandemic and lockdown saw remote working on an unprecedented scale, which marked, for many businesses, the first time they had adopted such a measure,” he says.

“Of course, remote working enabled the continuity of businesses and their service to clients during a time when face-to-face interaction was largely impossible, but now that restrictions have lifted and we are looking at what a ‘new normal’ means, it is now necessary to consider what that looks like in terms of working arrangements.

“In this seminar, we will look at remote and hybrid working, as well as the potential for a complete return to the office, and offer some guidance as to how to negotiate what can be a tricky area.”

* To register for the event, click here

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 30

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 30’ – with Angela Carver and Emily Richardson.

These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following questions:

  • Can an employer recruit after redundancy, and if so, when?
  • Where an employee is on nil pay (having exhausted sick pay) and has a long notice period, and the employer wants to exercise a PILON, will the PILON be exercised on the basis of zero pay, so the employee does not receive any payment?
  • The end of the isolation period

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Employment Law E-Bulletin – Issue 79

  • Government contemplates revoking mandatory vaccination requirements in care homes and the health and social care sector
  • Lee v United Kingdom (Application no. 18860/19) – The European Court rules the long running ‘gay cake’ case as inadmissible
  • Chell v Tarmac Cement and Lime Ltd [2022] EWCA Civ 7 – Employer held not liable for injury caused by another employee practical joke
  • Menopause: MPs hear evidence on whether menopause should be a protected characteristic

Government contemplates revoking mandatory vaccination requirements in care homes and the health and social care sector

On 31 January 2022, the Government announced that the mandatory vaccination requirement as a condition of deployment in the health and social sector may be revoked.

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2022 (SI 2022/15) (the “Regulations”) were due to come into force on 1 April this year and were set to extend mandatory vaccination to workers in the health and social care sector who had face to face contact with service users.

Guidance had previously stated that the latest date workers could receive their first vaccination was 3 February 2020 to have had their second dose by the 1 April deadline.

However, in light of reports that over 127,000 NHS workers and domiciliary staff are still unvaccinated (and so would likely be facing dismissal) and evidence that the new Omicron variant is less severe than the previous Delta variant, the Health Secretary Sajid Javid outlined the need for the Regulations (and the legislation relating to mandatory vaccination in care homes) to be reviewed, confirming an intention to revoke both.

This intention is now subject to a two-week statutory consultation and parliamentary approval. In a parliamentary debate Sajid Javid confirmed that unvaccinated care home staff who had been dismissed from their roles may choose to return to their roles without reinstated continuity of employment.

Lee v United Kingdom (Application no. 18860/19) -The European Court rules the long running ‘gay cake’ case as inadmissibl

The European Court of Human Rights (“ECHR”) ruled that gay rights activist, Gareth Lee, was not discriminated against when the Christian owners of a Belfast bakery refused to produce a cake depicted with the characters ‘Bert and Ernie’ and the words “Support Gay Marriage”.

In 2014, Mr Lee had approached Ashers Bakery to make a cake for a private event which marked the end of the Northern Ireland Anti-Homophobia and Transphobia week (amid great political debate due to same sex marriage still being illegal in Northern Ireland at the time). After initially accepting the order, Ashers’ owners, the McArthurs, decided that they would not be making the cake on the grounds of their Christian beliefs and offered a full refund.

Mr Lee subsequently brought indirect and direct discrimination claims under domestic legislation.

The County Court upheld the claims which prompted the McArthurs to appeal, stating that the legislation under which Mr Lee’s claim was brought was incompatible with their European Convention rights. However, the Court of Appeal held that it was not necessary to interpret the legislation to take their rights into account and that Mr Lee had suffered direct discrimination on the grounds of sexual orientation.

As a result, permission was sought to apply to the Supreme Court regarding the validity of the legislation. Here, it was found that there was a lack of sufficiently close association for a finding of such discrimination. It was held that the refusal was not due to the sexual orientation of the customer, but instead due to the McArthurs’ religious objections to same-sex marriage.

Mr Lee took the case to the ECHR, alleging the Supreme Court had “failed to afford weight to his Convention rights.” However, it was held that he had “failed to exhaust domestic remedies” by bringing the complaints under the domestic legislation instead of under the relevant ECHR Articles. As the lower courts were “deprived of the opportunity to consider and rule on those rights”, the case was inadmissible.

Points to note:

The Christian Institute welcomed the “right result” and director of the Evangelical Alliance, Peter Lynas, said the decision aligned with “freedom of conscience, speech and belief and whether someone could be forced to create a message they profoundly disagreed with.”  However, John O’Doherty, Director of the Rainbow Project (a Belfast-based gay rights campaign group) sees the decision as meaning that “legal uncertainty will remain.”

Lee is not the first case looking at discrimination on the grounds of sexual orientation. Similar cases involving the refusal to perform same sex ceremonies and a counsellor refusing to provide advice have reached the courts. However, they were ruled in favour of the claimants (who did raise Convention rights in the lower courts). The most notable is Bull and Preddy v Hall. Here, the Supreme Court ruled against the Christian owners of a bed and breakfast who had discriminated against a gay couple, by refusing them a room due to religious views on the sanctity of marriage. Whilst the owners argued rooms were reserved for heterosexual married couples only (and so would have refused a room to an unmarried heterosexual couple too), this reasoning did not stand.

Therefore, it raises the question as to whether the decision in Lee would have been different had the claimant also raised his Convention rights in the lower courts.

Chell v Tarmac Cement and Lime Ltd [2022] EWCA Civ 7 – Employer held not liable for injury caused by another employee practical joke

The Court of Appeal (“CA”) has upheld a County Court decision that an employer was not liable for injury caused by a practical joke to an external contractor, by one of its employees.

The appellant, Mr Chell, was an external contractor engaged by Tarmac to work on a quarry site. During the course of the work, tensions had arisen between the external contractors and employees of Tarmac which Mr Chell had raised with his supervisor, but he had not requested to move sites.

Sometime later, one of Tarmac’s employees played a practical joke on Mr Chell, by hitting some explosive pellets (bought off-site) with a hammer, next to Mr Chell’s ear. This caused Mr Chell to suffer a perforated ear drum, tinnitus and hearing loss.

In the County Court, Mr Chell claimed Tarmac was vicariously liable for the employee’s actions, and also that it was directly liable for failing in its duty of care to prevent a foreseeable risk of injury. However, these claims were dismissed in the County Court, the High Court, and most recently, the CA.

In an employment relationship, vicarious liability involves an employer being liable for the wrongs committed by an employee where there is sufficient connection between these wrongs and the employee’s employment such that it would be fair to hold the employer to be vicariously liable.

In considering vicarious liability, the CA held that there was an insufficiently close connection between the work carried out by the employees, and the practical joke. The equipment used did not belong to Tarmac and it was not used in the employee’s course of employment. It could not therefore be said that Tarmac authorised the employee’s behaviour. As such, it would not be fair, just or reasonable to hold Tarmac vicariously liable.

In terms of the claim for a breach in duty of care, the CA held that it would not be reasonable or realistic to expect employers to be liable for unforeseeable ‘horseplay’. Common sense dictates that employees act with reasonable care and skill in the course of their employment, and so this head of claim was also dismissed.

Points to note:

This common sense decision is welcome news for employers as it confirms that it would be unusual for employers to be liable for personal injury cause by employees’ unforeseen practical jokes.

That being said, employers still have a duty to protect the health and safety of their employees and third parties who work on their premises. They should make sure that they are fully aware of their responsibilities and that they have appropriate and comprehensive policies and procedures in place to cover these. Employers will still need to show that they are taking reasonable steps to prevent foreseeable issues.

Menopause: MPs hear evidence on whether menopause should be a protected characteristic

On 19 January 2022, as part of its inquiry into menopause and the workplace, the Women and Equalities Select Committee heard evidence from employment lawyers as to whether the menopause should be made a legally protected characteristic.

As menopause is not yet a protected characteristic under the Equality Act 2010, if an employee or worker is treated less favourably due to any related symptoms, they must seek to rely on another protected characteristic such as age, disability, gender reassignment or sex.

However, with one in four employees in the workplace being menopausal or post-menopausal, and reports that women are facing discrimination or missed opportunities if they are (or are perceived to be) going through the menopause, changes are being sought to address this.

Alongside these reports, businesses have also stated that they lack clarity over their obligations towards employees going through menopause, so it is clear that more needs to be done.

Allette v Scarsdale Grange Nursing Home Ltd: Employee’s dismissal for refusing Covid-19 vaccination was fair and interference with Article 8 right to privacy was justified

The claimant, Ms Allette, worked in a nursing home providing care to dementia sufferers.

Whilst not required under statute at the time, the home had implemented vaccinations as a condition of employment for their workforce, to protect its residents, staff and visitors.

The claimant had vocalised her reluctance of the vaccine and refused to comply, initially because she “did not trust the vaccine would be safe [as it had] been rushed through testing.” However, she later changed her reasoning at a disciplinary hearing, held for failing to follow management instruction, to state that the refusal was due to her Rastafarian beliefs.

This latter changed reasoning was not accepted by her employer and as a result, Ms Allette was summarily dismissed. This resulted in claims for wrongful and unfair dismissal.

The decision

The tribunal agreed that the claimant had breached the home’s Disciplinary Policy, which explicitly listed “Gross insubordination or refusal to carry out legitimate instructions” as examples of gross misconduct. Therefore, dismissal without notice was permitted.

Further, whilst the court agreed that the claimant’s Article 8 (1) rights were engaged, this interference was held to be justified under Article 8 (2) as there was a legitimate aim behind the requirements to be vaccinated and the claimant’s dismissal. When this interference was balanced against the interference of the residents who were placed at risk (and who did not have capacity) the rights of the latter prevailed and the claimant’s interference was also held to be proportionate.

The tribunal also accepted that the refusal was due to fears over the vaccine’s safety and not, as later claimed due to her religious beliefs (which, if true, would have been raised from the outset). The employer genuinely believed the claimant was guilty of gross misconduct and no alternative roles were available which did not require vaccination. Therefore, dismissing the claimant was held to be within the reasonable responses of the respondent.

What is to be taken from this decision

This is an employment tribunal decision, which means it does not create a binding precedent which must be followed. Further, the decision rested on the refusal to comply with management instructions according to an existing policy, which means that a different set of facts could result in a different decision – so the decision must be followed with caution.

It is likely that the approach will also differ where vaccinations are a mandatory condition of entering care homes under the new Regulations. Notwithstanding that the government has recently announced potentially revoking the new Regulations for NHS workers (which will inevitably impact on care homes), here employers will likely rely on their legal obligation to comply with the Regulations to ensure a fair dismissal. Instead, the focus may more likely be on the procedure leading up to the dismissal and ensuring it was correct.

The case has, however, shown an insight into the approach the courts will take on Article 8 interference and that refusal due to mere concern about the vaccine may not suffice.

If you would like any further information in relation to this topic, please contact a member of the Employment team.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 29

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 28’ – with Catherine Hope and Emily Richardson. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following questions:

  • As companies such as IKEA and Morrisons have cut sick pay for unvaccinated staff who are self-isolating, are we able to do the same? If so, how would we go about this and what implications do we need to consider?
  • Now that isolation periods have been reduced to 5 days if employees receive two negative LFT, do we have to implement this into our policies, or can we keep the period at 10 days?
  • In light of the Covid-19 vaccine becoming mandatory for CQC-regulated NHS staff, what do we need to do and what considerations do we need to take into account if employees refuse?

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Covid-19: Statutory Sick Pay Rebate Scheme re-introduced for SME’s

In light of the ongoing Covid-19 pandemic and new Omicron variant, regulations have been temporarily re-introduced to allow businesses to recover Statutory Sick Pay (“SSP”) for Covid-related absences.

The Scheme allows small and medium-sized enterprises (“SMEs”) with less than 250 employees (as at 30th November 2021) to reclaim up to two weeks’ Statutory Sick Pay (“SSP”) for each employee who is absent from work due to testing positive for Covid-19 or having to self-isolate due to possible infection.

The regulations operate in a similar manner to the previous Statutory Sick Pay Rebate Scheme (“SSPRS”) which was put into place between May 2020 to September 2021.

Claims can be made for absences which occurred on or after 21 December 2021 and must be submitted to HMRC by 24 March 2022, which is when the Scheme will also end.

These changes are alongside the Government’s ‘support package’ for businesses affected by the pandemic, including an extension on the time that employees are able to self-certify sickness absence without the need for medical evidence and the announcement to offer £1 billion in support for businesses in the hospitality and leisure sectors.

If you would like any further information in relation to this topic, please contact a member of the Employment team.

Covid-19: Temporary changes to statutory sick pay rules

As of last Friday (17th December 2021), new temporary rules, which provide an extension to self-certification time periods for statutory sick pay (“SSP”) purposes, are in place.

Prior to 17th December 2021, employees were able to self-certify their absence for 7 days and were then required to obtain a GP fit note for absences longer than 7 days for SSP eligibility.

However, the new rules mean employees can now self-certify absences of up to 28 days without obtaining a fit note and only require evidence for absences exceeding this time. This applies to any sickness absence which:

  • began on or after 10th December 2021 and is ongoing; or
  • starts during the period 17th December 2021 to 26th January 2022.

The changes will cease to apply on or after 27th January 2022, at which point the previous rules will return.

This change has been introduced in order to reduce the need for GP appointments and increase their capacity to support the Covid booster vaccination programme.

Whilst the new changes may be open to abuse by employees due to lack of regulation, any issues should be short-lived as the changes currently only apply until 26th January 2022.

The current temporary nature of the changes mean that employers won’t need to amend their sickness absence policies, but if the changes are extended then it might be a consideration for the future. However, employers will need to inform employees of the new rules. Whilst the timing of notification is at the employer’s discretion, it may be wise to do this when an employee reports in sick.

It is also important to note that the changes do not affect any enhanced sick pay entitlement. Here, employers can still follow their own policies in relation to eligibility as this remains unaffected by the changes. However, employers may want to consider aligning their company policies with the changes to show a willingness to support the implementations.

You can find the legislation by clicking here.

If you would like any further information in relation to this topic, please contact a member of the Employment team.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 28

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 28’ – with Ailsa Hobson and Emily Richardson. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following questions:

  • How can an employer ensure that they follow a fair process when recruiting internal and external candidates?
  • If an employee takes too much holiday in one holiday year, what options are open to employers?
  • Can an employer rely on a specific flexibility clause to require employees to work from home indefinitely?

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 27

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 27’ – with Catherine Hope and Fiona Campbell. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following questions:

  • Settlement agreements – what are the requirements and considerations for employers?
  • How should an employer approach a flexible working request by an employee?
  • Is overtime included in “normal working hours” for the purpose of calculating statutory redundancy payments?

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

GP Mergers

In the third of our ‘Top tips for GPs’ podcast series, Head of NHS Healthcare Amanda Maskery gives an overview of GP Mergers.

Please click on the play button below to listen.

Employment Focus | Post furlough: Options for employers

The end of September saw the Government Coronavirus Job Retention Scheme (“the Scheme”) come to a close. Whilst for some employers things are getting back on track, for others the changes to pre-pandemic levels of activity remain.

In light of this, we take another look at some of the options open to employers where change may be required in order to deal with any ongoing disruption and uncertainty:

Proposing changes to terms and conditions

Employers may seek to vary certain contractual terms such as employees’ hours or pay. When proposing a change to terms and conditions of employment, gaining express consent is the first step. During such discussions, employers should remain transparent with employees about the reality and ongoing impact that the coronavirus pandemic has had on the business, which has initiated the need to propose such changes. If employees are not open and honest, or if they unilaterally impose a change, this may amount to a breach of contract. Such a breach may result in the employee resigning, meaning employers make themselves vulnerable to an unfair dismissal claim (where employees have the requisite two or more years’ service).

If employers cannot gain express consent and employees refuse a change in terms and conditions, the next step would be to terminate and re-engage on the new terms. This action would amount to a dismissal (for the purposes of unfair dismissal) if the employee has two or more years’ service, and so employers would need to follow a fair process and show that the motivation for such changes was reasonable.

The other important consideration here is that where an employer proposes to terminate existing contracts if changes are not accepted, and 20 or more employers are affected, certain collective consultation obligations could be triggered.

Temporary Stoppages

Another option is the adoption of temporary stoppage arrangements to avoid having to implement redundancies. Some examples of things to consider include:

Sabbaticals

Whether this will assist will depend on a number of factors, including employees’ personal and financial circumstances and the overall effect of a sabbatical on job security and future job prospects. However, if it would help it could be worth raising it as a possibility as you never know individual circumstances and wishes. That being said, in the current context a sabbatical for someone who may be in a position to take it may still not be as an attractive option as it might ordinarily be.

Unpaid leave

Arranging for employees to take periods of unpaid leave is another way of stopping or reducing work temporarily. Such leave is likely to be shorter than a sabbatical, but many of the same factors will be relevant. Consent will be required unless an employment contract (or collective agreement) allows an employer to place employees on unpaid leave. Any restrictions in any existing policies could be waived to encourage take-up.

Holidays

Employees could be required to take their contractual or statutory annual holiday allowance at quiet times. This will be subject to giving the required notice under the Working Time Regulations 1998, which is double the length of the holiday to be taken. Employees will still be entitled to their normal remuneration whilst on holiday.

Overtime bans

Where there is no entitlement in the employment contract to overtime work, it is straightforward for employers to cease offering such provision to save outgoings. However, where a contractual right to overtime work is in place, the employer must obtain consent of employees to stop offering overtime.

When considering imposing such a ban, employers need to consider the effect of this implementation on its workforce, for example whether more women than men are dependent on overtime work. Employers should also seek to retain the right to reverse any ban if the need arises to reinstate previous overtime provisions.

Redeployment or secondment

Moving employees around the business is another option if there is a reduced requirement for the particular kind of work they carry out and they would otherwise be redundant. Redeployment, retraining or a secondment placement can be considered where an employer believes an employee is at risk of redundancy.

This is something employers would need to consider as part of a fair redundancy consultation process anyway, so looking at options in order to avoid having to go down that route could be a pre-emptive step. Employers will need to consider whether an employment contract contains a mobility and/or redeployment clause, which enables them to require employees to move around the business. If this is not present, they will need to ensure that express consent is obtained to make these changes.

Lay off and short time working

Lay off

With the Scheme having come to an end, lay off may be an option where there is a contractual right to do so. The contract should make clear that employees will not receive their normal salary during this period. Otherwise, any enforced lay-off will amount to a repudiatory breach of contract entitling an employee to resign and claim constructive dismissal and, where no pay is provided, an unlawful deduction from wages. If there is not a contractual right to lay off, then any proposal to lay off will need to be the subject of consultation with employees and will require their agreement.

Short time working

Another effective way of avoiding redundancies whilst guaranteeing work for employees is short time working, which reduces working hours and usually has a corresponding reduction in pay. Notwithstanding that this means employees earn less remuneration than they have previously received, they are more likely to accept this as an alternative to redundancy and the permanent loss of a job.

To implement short time working, employers must have a contractual right to implement such measures. If this is not the case, they must seek express agreement from employees to agree to the change in terms.

It is important to note that employees may be entitled to certain statutory guarantee payments if they are on lay off or short time working.

General headcount reduction

Employee costs are often the highest single item of expenditure. In times of difficulty it can be hard to resist the temptation to cut headcount as a quick fix to spiralling expenditure and ongoing reductions in demand. However, such short-term measures can affect long-term prosperity. Once lost, a talented, experienced employee can be hard to replace when business improves. In addition, staff morale may be affected and reputation damaged. Other measures that might delay having to take such steps include restricting recruitment, withdrawing job offers, deferring new joiners, and reducing non-permanent staff.

Redundancies

If the above measures cannot be adopted and redundancy is deemed to be necessary, employers must be satisfied that the statutory definition of redundancy applies before consulting with employees and taking action.

Following this, employers need to establish a fair and objective procedure, which includes the selection process where applicable. Where an employee has two or more years’ continuous service, this fair procedure must include consultation with individual employees. Where employees do not have two or more years’ continuous service, employers are required to give employees their specified notice period, which may include payment in lieu of such notice.

Once again, if employers are proposing to make large scale redundancies of 20+ employees within a period of 90 days or less, certain statutory rules in relation to collective consultation will apply. In brief, this will include the requirement to consult with representatives of the affected employees and to notify the Department for Business, Energy and Industrial Strategy.

Whilst there were calls to extend the Scheme, the 30th September deadline remained unaffected and so the above options remain as the alternatives in place for organisations still affected by the impact of the pandemic.

If you would like any further information in relation to the topic covered in this focus, please contact a member of the Employment team.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 26

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 26’ – with Catherine Hope and Fiona Campbell. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following questions:

  • Does a lack of appeal in itself make a redundancy dismissal unfair?
  • Should an employer who has a practice of giving time off in lieu (TOIL) pay for accrued TOIL on termination?
  • Can an employer withdraw a job offer made to a maternity cover applicant on the basis that she herself is pregnant?

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

‘Standout’ employment team praised for breadth of expertise

Sintons has built a “standout” employment practice which handles a full range of employment work across both public and private sectors, according to Chambers and Partners 2022.

The employment team is again ranked among the best in the region by the independent legal publication, which hails its work in matters including executive terminations, mass redundancies and restructuring issues, as well as discrimination claims, disciplinary proceedings and advice on employment contracts.

Chambers also points to its offering across a wide range of sectors, including strength in education and healthcare such as colleges, universities and hospital trusts, as well as entities from the construction, energy and leisure sectors.

Its commitment to offering ongoing training and seminars – something for which Sintons is widely known for, and which was ramped up via online offering during the COVID-19 pandemic to support businesses through the turbulent and uncertain times – also wins praise.

Keith Land, known as one of the North East’s leading employment lawyers, is said to deliver “excellent advice and is empathetic to the issues at hand”.

Associate Ailsa Hobson – who focuses on employment disputes, assisting employers faced with discrimination, unfair dismissal and whistle-blowing claims – is again named as an associate to watch.

Chambers quotes client testimonials which point to Sintons as delivering “very sensible, robust advice that comes with a practical edge”.

The findings from Chambers come only weeks after Legal 500 also reported Sintons’ excellence in both legal and client service, with its employment team delivering unrivalled support during the pandemic to both new and existing clients.

“Our employment team is regarded in the highest terms by many for its pragmatic advice, supporting businesses through often difficult situations to give clarity around complex situations. We are the trusted advisor to businesses and organisations throughout the region and UK-wide for that very reason,” says Christopher Welch, managing partner of Sintons.

“It is very pleasing to again see the outstanding service we deliver to our clients independently recognised by Chambers, which concurs with the findings of Legal 500 around our commitment to delivering legal and service excellence. We are very proud of the reputation we hold for our employment advice and continue to build that further.”

Sintons again recognised for capability across the board by Chambers 2022

Sintons has again been hailed as one of the leading law firms in the North of England in newly-released rankings from Chambers and Partners UK.

The firm, consistently praised for its strength and capability throughout the business, again wins recognition for its legal expertise, deep experience and first-rate levels of client service.

Practice areas across the business win recognition as leaders in their field, with healthcare again being confirmed as one of the key advisors nationally for its work with growing numbers of NHS Trusts, organisations, professionals and healthcare businesses across the UK.

Chambers and Partners 2022, published today, also highlights 17 of Sintons’ lawyers as being stand-out names in their specialism, many of whom are recognised in the legal marketplace as being leading figures regionally and nationally.

The rankings come only weeks after Sintons won similar praise across the board from Legal 500, which also recognised the wide-ranging expertise, legal capability and service excellence the firm delivers to its clients.

Both Chambers and Legal 500 are independent publications which assess and rank law firms and lawyers throughout the UK, based on interviews, examples of work, and client and peer testimonials.

“For over 125 years, Sintons has built a well-deserved reputation as a first-rate legal advisor delivering outstanding levels of service to its clients, and those values have remained at the heart of the firm since our foundation in 1896,” says managing partner Christopher Welch.

“That these key features are consistently highlighted by independent legal publications like Chambers and Partners, and recently Legal 500 too, is a huge endorsement of what we do here at Sintons. Businesses, families and individuals put their trust in us to deliver an outstanding legal and personal service and that is what we deliver.

“Chambers again confirms our strength across the whole Sintons business, with capability and talent running throughout the firm, and a shared commitment by everyone here to continue to build Sintons so it can be the best it can be. We are all delighted to again have our efforts recognised in this way.”

Employment team hailed for expertise by Legal 500 2022

The employment team at Sintons has again been confirmed as a regional leader by Legal 500 2022, with its breadth of expertise and significant client base hailed as being key in its stand-out offering.

The department wins praise for its capability in a host of areas, particularly reorganisations, strategic advice, TUPE and discrimination claims, and is strong in both public and private sector work.

Legal 500 also highlights its expanding client base, which has particular strength in healthcare, education, charities, renewables and construction.

Practice head Keith Land is again named as a leading individual in the North of England in recognition of his deep expertise in employment law and outstanding client service, which one client told Legal 500 was “quite frankly, the reason I am able to sleep every night. He is the epitome of kindness, professionalism and intellect within his field”.

Senior Associate Ailsa Hobson is again hailed as a rising star, with fellow Associates Fiona Campbell, Angela Carver and Catherine Hope all being named as key figures in the team.

Legal 500 quotes an array of client testimonials attesting the service Sintons delivers, with one saying the team provides an “invaluable employment service to my business”.

“With over 200 members of staff in a highly regulated industry, I could not achieve the results I do without their input. Sintons are able to look at each situation and plan accordingly,” added the client.

The independent recognition from Legal 500 2022 comes as the latest endorsement of Sintons’ employment team, after it won widespread praise for its support of businesses during the COVID-19 pandemic. The team made a host of free resources available online to help business owners negotiate the fast-changing situation and gave much-needed clarity around matters including the Job Retention Scheme.

Christopher Welch, managing partner at Sintons, said: “We are delighted to again be confirmed as a leader in our field, with our employment team and head of department Keith rightly being highlighted for their outstanding levels of capability and client service.

“Our employment team is an invaluable support for businesses across the North East and wider UK, providing clear and direct advice to enable them to negotiate the most difficult of situations with confidence and clarity. This has never been more vital than during the past 18 months, when our clients have been able to gain much-needed certainty about how to proceed despite the unprecedented and fast-changing situation – something which we know was not only essential to the running of their business, but hugely appreciated at a very difficult time.”

Sintons once again wins praise from Legal 500 2022

Law firm Sintons has again maintained its reputation as one of the leading law firms in the North of England in newly-released rankings from Legal 500, winning plaudits for its strength and expertise across the firm.

Legal 500 2022, released today, renews its praise of Sintons and confirms them as being a go-to legal provider in the region in many key practice areas.

The independent publication – which ranks law firms and lawyers across the North, compiled as a result of examples of work, interviews and client and peer testimonials – names eight of Sintons’ lawyers as leading individuals, three as next generation partners and a further six as rising stars. One of its lawyers also secures the highly coveted accolade of being named in the Legal 500 Hall of Fame, in recognition of consistent achievement throughout their career.

The latest Legal 500 rankings add further to the long-standing reputation of Sintons – winner of five awards at the most recent Northern Law Awards, including overall Law Firm of the Year – as a leading player in the North of England, with national reach and capability in many of its departments.

The leading individuals at Sintons, as identified by Legal 500, are:

The next generation partners, as identified by Legal 500, are:

The lawyer named as member of the Legal 500 Hall of Fame is:

The rising stars at the firm are:

Christopher Welch, managing partner of Sintons, said: “We are very proud of the reputation we have built during our 125 year history as being a law firm which consistently offers legal excellence and an outstanding service to our clients, and for these two factors to again be recognised by Legal 500 as being a staple of Sintons’ offering is very pleasing.

We are delighted to maintain our position as one of the leading law firms in the North of England, with strength, capability and experience running throughout our practice areas.”

Sintons Employment Law E-Bulletin – Issue 78

  • Temporary right to work checks extended to 5 April 2022
  • Abbeyfield (Maidenhead) Society v Hart UKEAT/0016/21 – Email indicating intention to dismiss employee sent before disciplinary hearing was protected
  • Changes may be made to the Equality Act 2010 to better protect against menopause discrimination
  • Kinlay v Bronte Film and Television Ltd ET/2200252/2020 – Genuine occupational requirement that actor be not visibly pregnant is rejected.

Temporary right to work checks extended to 5 April 2022

The temporary Covid-19 adjusted right to work measures, which were introduced on 20 March 2020, in light of the pandemic, will now continue until 5 April 2022 rather than the original end date of 31 August 2021.

These measures allow right to work checks to be carried out over video calls, and allow for job applicants and existing workers to send scanned documents or a photo of their documents or a photo of their documents to employers via email or a mobile app, rather than sending the originals.

In following these adjusted measures employers will maintain a statutory defence against a civil penalty. Retrospective checks will not be required where the adjusted checks have been carried out.

From 6 April 2022 normal service is set to resume, meaning that employers will have to:

  • check an applicant’s original documents; and
  • check an applicant’s right to work online, if they have provided a share code.

The Home Office is still intending to introduce a new digital right to work check solution to include many who are currently unable to use the Home Office online checking service, including UK and Irish citizens. This is set to enable checks to continue to be carried out remotely but with greater security.

Abbeyfield (Maidenhead) Society v Hart UKEAT/0016/21 – Email indicating intention to dismiss employee sent before disciplinary hearing was protected

In the case of Abbeyfield (Maidenhead) Society v Hart the Employment Appeal Tribunal (“EAT”) has found that an email did not fall within the “iniquity” exception to litigation privilege, even though it contained an indication that the employer intended to dismiss an employee and was sent prior to a disciplinary hearing.

There are two types of legal professional privilege:

  • Legal advice privilege (confidential communications between lawyers and their clients made for the purpose of seeking or giving legal advice).
  • Litigation privilege (confidential communications between lawyers and their clients, or the lawyer or client and a third party, which come into existence for the dominant purpose of being used in connection with actual or pending litigation).

The protection provided by legal professional privilege will be lost where a communication or document comes into being for the purpose of furthering a criminal or fraudulent design. This is based on public policy and is referred to as the “fraud exemption” or “inequity principle”.

In this case, Mr Hart had worked for Abbeyfield (Maidenhead) Society (“AMS”) between 2011 and 2017 before being dismissed without notice for gross misconduct. Mr Hart brought claims for unfair and wrongful dismissal, as well as various discrimination claims, against AMS.

AMS disclosed all materials relating to Mr Hart’s alleged misconduct but claimed that various communications with HR Consultants, regarding advice on how to deal with the disciplinary and potential dismissal, were inadmissible by reason of litigation privilege.

The Employment Tribunal held that the communication, bar one email, was inadmissible due to litigation privilege. It held that one email breached the iniquity principle and was therefore disclosable. This was an email from a Senior Officer of AMS (who was also the Appeal Officer) in which he stated “Mr Hart’s rudeness and gross insubordination has caused major problems to both Donna and Shirly and this cannot be allowed to continue any longer. He will not therefore be returning to the Nicholas House under any circumstances”. The Employment Tribunal held that it would be iniquitous to allow AMS to continue to defend the unfair dismissal claim as a fair dismissal, as least from a fair appeal perspective, when this view had been expressed two months before the dismissal.

AMS appealed this decision (and Mr Hart cross-appealed in relation to other documentation found to be privileged). The Employment Appeal Tribunal (“EAT”) allowed the appeal. It held that the email in question was not such as to engage the iniquity principle. AMS was not seeking advice on how to act unlawfully and the HR Consultant did not give such advice.

The EAT acknowledged that there may be cases when a client’s instructions leave an adviser professionally embarrassed, and the adviser has to decide whether its ethical to continue to act for the client. This situation could arise, for example, if an employer told its adviser that it intended to embark on a sham appeal process. However, this was not the case here.

This case confirms that the circumstances where the iniquity principle will apply will be rare. As long as advice is not sought on how to act unlawfully, documentation should attract litigation privilege. However, as stated by the EAT, although the email was inadmissible, the Senior Officer could still be cross examined on his intentions and conduct of the appeal. The difficulty there would be him appearing convincing to the Employment Tribunal.

Changes may be made to the Equality Act 2010 to better protect against menopause discrimination

The Chair of the Women and Equalities Committee, Caroline Nokes, who is currently carrying out an enquiry into menopause discrimination in the workplace, has said that changes to equality laws to provide better protection for menopausal women should not be ruled out.

Caroline Nokes said that one of the key messages coming through as part of the enquiry is that menopausal women do not feel that they have adequate legal protection due to lack of clarity in the legislation, leading many to bring claims for disability discrimination.

If the current legislation isn’t working then the Committee may take steps to change the Equality Act 2010 to recognise menopause as a protected characteristic. This is certainly an area to watch.

Kinlay v Bronte Film and Television Ltd ET/2200252/2020 – Genuine occupational requirement that actor be not visibly pregnant is rejected.

In the case of Kinlay v Bronte Film and Television Ltd the Employment Tribunal considered a genuine occupational requirement that an actor be not visibly pregnant in defence to her claim of pregnancy and maternity discrimination.

Ms Kinlay had previously played the part of Sarah Shadlock in ‘The Strike Series: Career of Evil’. She was due to reprise this role in the following series but ended up not being cast by the producer, Bronte Film and Televsion Ltd (“Bronte”), after it was advised she was pregnant.

Ms Kinlay brought a pregnancy and maternity discrimination claim, arguing that Bronte had treated her unfavourably because of her pregnancy.

The Equality Act 2010 permits employers to discriminate lawfully in limited circumstances, These include a number of ‘occupational requirement’ exceptions which apply to claims concerning recruitment, access to promotion, transfer or training, and dismissal, where a requirement can be shown to be a proportionate means of achieving a legitimate aim.

Bronte admitted that the decision not to cast Ms Kinlay was due to her pregnancy but claimed that there was a genuine occupational requirement for the actor performing the Sarah Shadlock role not to be visibly pregnant.

Although Ms Kinlay agreed that the character could not be visibly pregnant, she disagreed that this was a genuine occupational requirement due to the number of ways in which pregnancy could be concealed.

The Employment Tribunal upheld Ms Kinlay’s claim, concluding that it would have been possible to conceal Ms Kinlay’s pregnancy without this constraining the director’s creative vision. In addition, the potential risk of Ms Kinlay being ill was found to be minimal due to the timings of filming and Ms Kinlays’s corresponding stages of pregnancy. Post-production visual editing had not been considered at the time and even if it had been, the cost would not have been disproportionate. These were the responses to some of the arguments raised by Bronte.

In this case the Employment Tribunal found that there was no genuine occupational requirement as it would have been possible to conceal Ms Kinlay’s pregnancy. However, it is important to note that it remains unclear whether an occupational requirement not to appear visibly pregnant, would be protected under the Equality Act 2010 (“EqA 2010”). There may be instances where an employer would want to argue that having the protected characteristic of pregnancy is a requirement, for example, in the modelling of pregnancy clothes or other products, but the drafting of the EqA 2010 does not currently appear to create a genuine occupational requirement not to have a protected characteristic.

Hospitality staff to keep all tips under new government plans

The government has announced that it will introduce legislation to ensure that tips left for hospitality staff are paid to them in full (except for deductions required under tax law).

The new legislation is aimed to assist around two million people working in the industry to top up their income, many of whom are earning the National Minimum Wage or National Living Wage.

At present, cash tips are legally the property of workers who receive them. However, the more prevalent card tips, which make up 80% of all tipping in the UK due to the move towards a cashless society (especially since the covid-19 pandemic) do not automatically have to be given to the staff. Whilst many businesses will pass on these sums, the decision to do so is currently at the discretion of the business and the business could retain these funds, if it sees the need to do so.

Labour Markets Minister, Paul Scully, stated that the new measures will, “ensure tips will go to those who worked for it” as, “unfortunately, some companies choose to withhold cash from hardworking staff who have been tipped by customers as a reward for good service.”

Of the plans to make this illegal, he stated that it will provide, “a boost to workers, while reassuring customers their money is going to those who deserve it.”

The legislation will:

  • require all employers to pass tips onto workers without any deductions (such as administration charges) except for those deductions required by tax law;
  • result in a Statutory Code of Practice setting out how tips should be distributed to ensure fairness and transparency;
  • necessitate a written policy on tips and the retention of records of how tips have been dealt with;
  • allow tips to be provided by using a tronc but require that they are distributed no later than one month in arrears; and
  • introduce rights for workers to request information in relation to an employer’s tipping record, allowing them to bring forward a credible claim to an Employment Tribunal.

Under this new legislation, an employer faces action at an Employment Tribunal if they break the rules.

These measures are expected to be enforced within the next year and will form part of a package of measures which will provide greater protections for workers’ rights.

If you have any queries about the introduction of these new measures, please contact our employment team.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 25

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 25’ – with Keith Land and Angela Carver. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • Flexible Working
  • Mandatory Vaccinations

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Temporary medical exemptions for COVID-19 vaccination of people working or deployed in care homes

The Government yesterday announced a temporary exemption to the vaccination of people working in care homes.

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (the “Regulations”) were approved by Parliament on 22 July 2021 to make vaccination a condition of entering a CQC-regulated care homes in England, unless those persons are able to evidence a medical exemption to the satisfaction of the registered individual. A 16-week grace period was put in place to ensure staff who haven’t been vaccinated could take up the vaccine before the Regulations come into force on 11 November 2021.

The latest statistics show that around 82% of care home staff are now fully vaccinated but there has been some disquiet about those people who are not able to get the vaccine for medical reasons and clarity has been needed as to how the Government was going to ensure that these persons were not disadvantaged.

On a temporary basis, from yesterday, people working or volunteering in care homes and who have a medical reason why they are unable to have a COVID-19 vaccine, will be able to self-certify that they meet the medical exemption criteria. The Government has created appropriate forms for employers and employees to use. Workers who are exempt will need to sign appropriate forms and give this to their employers as proof of their temporary exemption status. This self-certification process is temporary only and has been introduced for a short period until the new NHS Covid Pass system goes live and once this happens, care home workers will need to apply for a formal medical exemption through that process. The ability to use this self-certification will expire 12 weeks after the Covid Pass system is launched.

Who is exempt

While the list is not exhaustive, the Government statement provides some examples, as follows:

  • those receiving end of life care where vaccination is not in the individual’s interests;
  • those with learning disabilities or autistic individuals, or with a combination of impairments which result in the same distress, who find vaccination and testing distressing because of their condition and cannot be achieved through reasonable adjustments such as provision of an accessible environment;
  • those with medical contraindications to the vaccines, such as, severe allergy to all COVID-19 vaccines or their constituents; or
  • those who have had adverse reactions to the first dose (for example, myocarditis).

It is, therefore, clear that there has to be very pressing reasons and an employee who uses the medical exemption without good reason could be the subject of disciplinary action for misleading their employer. However, the temporary exemption is not law and the legal position remains that an individual must provide satisfactory evidence to their employer. That said, whilst the temporary exemption remains, it is difficult to see how an employer would be disadvantaged if they have used it appropriately.

If you would like to discuss this further, please contact Keith Land Partner and Head of the Employment Team on 0191 226 4892 or keith.land@sintons.co.uk.

‘Must-attend’ employment event returns for 2021

An annual employment law event which is regarded as a must-attend for people working in HR and employment across the region is returning to being held in person for 2021.

The Annual Employment Law Update is one of the key events in the North East for its insight into employment law, reviewing the past 12 months and the current situation facing businesses, as well as what is likely to lie ahead.

The event, held by Sintons has been held for a number of years and is regularly over-subscribed. Last year’s event was held online due to the COVID-19 restrictions, meaning a record number of people were able to attend.

This year, it is returning to being held in-person on October 7, and will be one of the first opportunities for employment and HR professionals from throughout the North East to gather after the lifting of restrictions.

Keith Land, head of employment at Sintons and regularly hailed by both Legal 500 and Chambers as being among the leading advisors in the North East, will again be one of the speakers at the event.

“The past 12 months have been some of the most challenging many businesses have ever faced, with the vast majority being forced to make some variation to their traditional employment situation through furlough leave, changing working patterns or making redundancies,” says Keith.

“The challenges have been many, but the way businesses have coped and adapted has been fantastic. We’ve been by the side of many throughout the period, supporting them through what has been a very fast-changing situation.

“As well as reviewing this period, we will look at the current situation and what lies ahead for businesses, sharing our insight into how they can be best prepared for that from an employment perspective.

“We look forward to again hosting one of the most popular events in our calendar, and particularly to welcoming people back in-person.”

* The Annual Employment Law Update is being held on October 7 from 8am to 10.30am at the Newcastle Eagles’ Vertu Motors Arena, Scotswood Road, Newcastle, NE4 7AF. To book a place at the event, click here

Is your workforce vaccinated yet?

The Government has published guidance which applies to regulated activity in a care home (the provision of accommodation together with nursing or personal care). It has been produced to help support the implementation of the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (‘the Regulations’). The Regulations require registered persons of all Care Quality Commission (CQC) registered care homes (which provide accommodation together with nursing or personal care) to ensure that a person does not enter the indoor premises unless they have been vaccinated. This is subject to certain exemptions. These, together with an overview of the Regulations, are dealt with below but many commentators are concerned that the entire substance of the Regulations could be called into question.

From 11 November 2021, it will become law that anyone entering a care home must have had a complete course of an authorised COVID-19 vaccine. For care home staff, this means you will only be able to continue to work inside a care home if you are vaccinated, unless you are…read more>>

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 24

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 24’ – with Angela Carver and Catherine Hope. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • Can I force an employee to take holiday during the notice period?
  • Does an employer have to conduct a fair selection process for lay-offs (rather than redundancies)?
  • Can I extend a probation period?
  • Is it possible to sign an employment contract by electronic signature?

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Sintons Employment Law E-Bulletin – Issue 77

  • Government Vaccination Guidance for Employers
  • Coronavirus Job Retention Scheme Update
  • Mhindurwa v Lovingangels Care Ltd ET/3311636/2020 and Handley v Tatenhill Aviation Ltd ET/2603087/2020 – Redundancy and consideration of furlough leave

Government Vaccination Guidance for Employers

General Guidance

The Government has published new guidance which recommends that employers encourage and support their staff to get vaccinated against COVID-19. The guidance includes information and resources to support and promote the COVID-19 vaccination programme.

Most helpfully, the Government has produced an ‘Employers’ Communication Toolkit’ which can be used to run an internal awareness campaign within organisations to help ensure their employees get access to reliable and accurate information about the Covid-19 vaccine. The toolkit includes a Q&A document, essential vaccination information, scripts to inform internal conversations, links to videos and webinars, posters, screensavers, intranet banners and email signatures. Some ways to implement the toolkit material could include Articles or blog posts about the importance of vaccination could be posted on the employer’s intranet, or in emails or newsletter communications.

From a practical point of view, employers should provide information in relation to how and where workers can get vaccinated in their locality. The guidance also recommends that employers could use departmental champions to promote vaccination and encourage senior staff to share their vaccination experiences. Although the guidance does not specify that workers should be entitled to paid time off to attend vaccination appointments, employers should still consider allowing workers to take time off to be vaccinated, and sick leave policies and procedures should be reviewed to ensure that they do not disincentivise workers from getting vaccinated.

Whilst employers are advised to encourage their staff to get vaccinated, if an employee does not want to be vaccinated, because of health reasons for example, then the employer should listen to their concerns. Employers should be sensitive towards personal situations and must keep any concerns confidential and be careful to avoid discrimination.

The full guidance can be found here.

Mandatory Vaccinations

There are now certain sectors where the Government has made vaccinations mandatory. The Government has now passed legislation making a vaccination for COVID-19 a condition of working in care homes. This will come into force on 11 November this year and there will be a 16-week grace period to enable those impacted by the requirement to receive both doses of the vaccine. The requirement will apply indoors only and will include all persons who enter a care home, regardless of their role, subject to certain exclusions.

The following workers will be excluded from the requirement to have a vaccination: those who should not be vaccinated for medical reasons; those providing emergency assistance or urgent maintenance in the care home; members of the emergency services; people under the age of 18; and those providing spiritual support for residents.

Those within the care industry should write to their employees advising of the new changes and explain that evidence will need to be provided to demonstrate that they have received a complete course of an authorised COVID-19 vaccine or in the alternative, evidence that they are exempt from vaccination. Evidence of an authorised COVID-19 vaccine may include one of the following: an NHS Covid-19 Vaccination record card; NHS Covid Pass through the NHS App; or a printed copy of the NHS Covid Pass or COVID-19 post vaccination letter which can be requested online or by phoning 119.

The aim of these new rules is to help ensure that care home residents at high risk from COVID-19 either due to their age, underlying health conditions or disability are better protected against the virus. It is important that there is clear communication between employers and employees which explains the change in law, the reason behind this change, and what is required from employees.

Coronavirus Job Retention Scheme Update

The Coronavirus Job Retention Scheme “CJRS” has changed again this month. Whilst the government paid 70% of salaries with employers contributing 10% in July, in August and September the government will pay 60% and employers will pay 20%. The monthly limit of £2,500 remains in place, so workers will not notice the difference. The CJRS continues until 30 September. There have been no announcements about what support, if any, will be available after this date.

Mhindurwa v Lovingangels Care Ltd ET/3311636/2020 and Handley v Tatenhill Aviation Ltd ET/2603087/2020 – Redundancy and consideration of furlough leave:

Two employment tribunal cases have recently provided some useful guidance on making redundancies whilst the Government Coronavirus Job Retention Scheme (“CJRS”) remains in operation.

In Handley v Tatenhaill Aviation Ltd, an Employment Tribunal held that a dismissal was not unfair, despite the operation of the CJRS, whilst on the other hand, in Mhindurwa v Lovingangels Care Ltd, an employee was found to have been unfairly dismissed when the employer failed to consider using the CJRS as an alternative to redundancy.

In Mhindurwa, the claimant was found to have been unfairly dismissed when her employer refused to consider furlough leave before making her redundant in July 2020. The Employment Tribunal  held that, although there was a genuine redundancy situation, a reasonable employer would at the time have considered whether Ms Mhindurwa could be placed on furlough leave as an alternative to redundancy. The lack of work for the claimant was as a result of the COVID-19 pandemic and a situation for which the CJRS was intended to be used, but there was no explanation as to why this hadn’t been considered.

In Handley, the claimant was placed on furlough leave in April 2020 on the basis that this would initially be for a period of 3 weeks or until he could return to work as normal. Mr Handley was made redundant in August 2020. He brought a claim for unfair dismissal arguing that the furlough agreement prevented his redundancy. His claim was not upheld. The Employment Tribunal accepted that the employer needed to cut costs notwithstanding the CJRS, and that it intended to use the CJRS to cover some of the costs of the redundancy. Although another employer may have chosen to keep Mr Handley on furlough leave, it was not unfair for the employer not to.

Although these cases are not binding as they are first instance decisions, they indicate that Employment Tribunals may expect employers to have at least considered the option of furlough leave when considering potential redundancies at certain points during the pandemic.

Although, the impact of these cases may be significantly reduced as we approach the end of the CJRS, they are a good reminder of the need for employers to consider the alternatives available to them as they consult in relation to potential redundancies, and to provide clear explanations as to why they have been rejected if so.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 23

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 23’ – with Angela Carver and Fiona Campbell. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • Right to work checks
  • Hybrid working
  • Refusal to return
  • Flexible working

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Employment Focus July 2021- Hybrid Working

With the green light being given by the government to lift all social distancing restrictions from Monday 19 July 2021, many employers are faced with the question of what they should do with their working arrangements going forward. Many employers have, through necessity rather than choice, operated remotely due to the COVID-19 pandemic, but with restrictions finally easing, it may be the time for employers to think about whether they wish to formalise home working or other flexible arrangements, such as a hybrid working model.

In terms of informal steps, employers considering a flexible or hybrid working model, should hold open conversations with its employees around flexible working arrangements. This will allow a discussion to take place about which roles can and cannot be done from home; who may or may not want to work from home; and establish if there are any concerns and how best to handle them. This will ensure that decisions about working from home are fair and comply with equality legislation.

Employers may also hold discussions with any trade union or other employee representatives. If an employer has an existing agreement with a recognised trade union about working from home, for example an agreed homeworking policy, they must consult the trade union if they’re considering any changes.

Once employers have held the appropriate conversations, they may wish to think about whether to formalise home working or other flexible arrangements. Employers may prefer full or partial homeworking, and many may consider reducing their office footprint longer-term. If so, employers are encouraged to review their contracts and policies to reflect the decisions made around flexible working. It is important to note that, whatever the flexible arrangement is, some elements of flexibility should be retained within the contract. For example, requiring employees to attend the workplace for a minimum number of days per week, or for specific reasons, such as for meetings/ appraisals, or disciplinary action etc. Thus, flexibility should be retained within the contract to require the employee to attend the workplace if required by the employer.

If it is decided that the working location will be at ‘home’, then employers should be mindful of employees claiming travel expenses when travelling to the office or other place of work. Moreover, consideration should be given if employees are required to remain within commutable distance. If so, then living within a certain radius should be documented within the contract.

Some employers may feel as though there is still too much uncertainty to confirm working arrangements going forward. This should still be communicated to employees and explained that homeworking will be kept under review. If an employer intends its workforce to return to the office, employees should be made aware of flexible working requests if they wish to work from home on a more permanent basis. These can be considered on a case-by case-basis.

Alongside reviewing employment contracts, employers may wish to review their existing policies and handbooks. Employers should review how their existing sickness, data and IT, disciplinary and grievance and benefit policies are impacted by a shift to homeworking. In relation to any sickness/absence policies, the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 are currently in force which makes it a criminal offence for an employer to require a self-isolating worker to attend work. Due to a range of circumstances where employees may be absent from work due to the pandemic, it is prudent to amend these policies to allow for potential temporary homeworking/Covid-related absences.

Further, it is sensible to review any data and IT policies which will address data and information security issues related to working remotely. This should also be reviewed alongside any procedures and practices in place where personal data is being processed using remote-working software.

It is important to consider any disciplinary and grievance policies in light of homeworking. This is particularly important in circumstances where employees working from home may no longer be able to attend in-person meetings and normal timelines under these policies and procedures may need to be altered. The policies should be updated to ensure a fair procedure for office workers and homeworkers.

An employer may find it sensible to introduce a homeworking policy which helps employees to understand how people will be set up to work from home, including how the employer will carry out risk assessments; who will provide and pay for equipment; how homeworkers will be managed; how things like expenses, tax and information security are handled; and the employer’s approach to homeworking. Within this policy, it will be important to ensure that employees are aware that working from home means they are still covered by the law on working hours. If a homeworking expenses policy has been previously agreed with a trade union, the employer must agree any changes with the union.

Employers should finally consider the following when shifting towards hybrid working, or other flexible working arrangements.  Importantly, a risk assessment should be carried out in both work settings, at home or in the office. This will ensure that employees are provided with the correct equipment to carry out their role efficiently, such as a phone, laptop etc, and that they have access to the internet. A risk assessment will also cover any health and safety issues which may arise from homeworking, such as ensuring that there is an appropriate work area at home, and that the office is covid-compliant when employees attend. It may be appropriate to require the employee to check whether there are any restrictions within their home insurance, mortgage provider or landlord which would prevent homeworking.

Moreover, employees working at home should not be treated less or more favourably than other employees in the organisation because they work from home. In both work settings, employees should be treated equally and provided with the same opportunities as one another. An employee’s pay and other terms and conditions of their employment should stay the same unless it’s necessary to change them. For example, updating the addresses where the employee will work.

If you have any questions relating to this article or require any advice please contact Fiona Campbell, Associate in the Employment team, on 0191 226 3703 or at fiona.campbell@sintons.co.uk.

Sintons Business Immigration team set for growth

Law firm Sintons is set for growth in its specialist Business Immigration team amidst surging levels of enquiries following Brexit, the EU Settlement Scheme and the recent changes to the Immigration Rules.

The team, part of Sintons’ esteemed employment department, has been advising businesses across the region for several years in negotiating their obligations under UK Visa and Immigration rules. But, with the complex situation around business immigration already changing since Brexit took effect on January 31, and further changes impending around the rights of individuals to move to and reside in the UK for work purposes, advice is being sought from increasing numbers of clients from throughout the North East and beyond.

Sintons’ immigration team is managed by partner Keith Land and led by Fiona Campbell, associate in the firm’s employment department, which is known for the clear and direct advice it offers to business owners. The team has earned widespread plaudits for the employment support it has offered to businesses nationally during the pandemic, with an array of free online resources – including webinars, podcasts, Q&A sessions and an array of written content – to give clarity during the fast-changing situation.

“While the economic recovery continues to be the focus of business owners on a day-to-day basis, the impact of Brexit and how it affects their recruitment and retention of overseas workers is something that is becoming an increasingly prevalent issue,” says Fiona.

“What is an already complex situation around immigration rules, both for businesses and individuals, is becoming even more so through the ongoing changes in regulations from UKVI. It is imperative that these are adhered to, as the consequences for non-compliance are severe.

“Employers and individuals are being forced to confront this issue, and in tandem we are seeing a surge in the levels of immigration-related enquiries and instructions. As a specialist service, with significant levels of experience and expertise, we can assist businesses with swift intervention to immediately clarify their position and establish a way forward.

“Given the recent changes to the Immigration Rules and the ongoing impact of Brexit, we are geared up to support even more businesses through the months and years ahead.”

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 22

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 22’ – with Keith Land and Catherine Hope. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • Do you have to disclose the investigation report and witness statements to an employee within a grievance process?
  • Maternity rights/premature birth
  • What are the risks of an employee returning to work for their ex-employer shortly after leaving under a settlement agreement?

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Monthly Employment Bulletin – Issue 76

Leah Greenwell from the Employment department at Sintons recently recorded issue 76 of our Monthly Employment Bulletin as a podcast.

Please click on the play button below to listen.

Sintons Employment Law E-Bulletin – Issue 76

  • Khatun v Winn Solicitors Ltd ET/2501492/2020 – Solicitor unfairly dismissed for refusing to agree changes to employment contract during pandemic
  • BEIS updates guidance on calculating national minimum wage for sleep-in workers
  • Maya Forstater v CGD Europe and Others UKEAT/0105/20/JOJ – Gender critical views held to be philosophical belief

Khatun v Winn Solicitors Ltd ET/2501492/2020 – Solicitor unfairly dismissed for refusing to agree changes to employment contract during pandemic

The Respondent in this case placed approximately half of its staff on furlough in response to the COVID-19 pandemic, requiring the remaining staff to babysit the cases of the furloughed staff. The Claimant, Ms Khatun, was one of the solicitors selected to continue working. She refused to agree to the contract variation as she was continuing to perform the job she had been contracted to do and that if she were to be furloughed or any other unexpected situation were to arise, she would consider variation at that point. The Claimant’s Head of Department re-iterated the firm’s position that the changes were non-negotiable and that she would be dismissed if she did not agree, which she did not. The Respondent’s Chief Operating Officer instructed the HR Director to terminate the Claimant’s employment immediately.

The Employment Tribunal held that the dismissal was unfair. It found that the Respondent had sound, good business reasons for implementing the contractual variation and that, given the effects of the pandemic, it was reasonable to want to implement the measures it did. However, the Tribunal found that there had been no meaningful consultation between the parties and the Respondent had not reasonably explored alternatives to dismissal.

This decision is important for employers and acts as a reminder that even where there are sound business reasons, a dismissal for failure to agree to new terms will almost always be unfair where an employer has not followed a procedure of any kind or consulted with employees over a proposed change and considered any reasonable alternatives to dismissal, even where the business is faced with urgent financial pressures.

BEIS updates guidance on calculating national minimum wage for sleep-in workers

The Department for Business, Energy and Industrial Strategy (“BEIS”) has updated its guidance on calculating the national minimum wage (“NMW”) to clarify the position for sleep-in workers in light of the Supreme Court’s decision in Royal Mencap Society v Tomlinson-Blake and others [2021] UKSC 8.5 (“Royal Mencap”).

Following Royal Mencap, sleep-in workers are only entitled to the NMW when they are awake for the purposes of working, but not when they are permitted to sleep. Nevertheless, the guidance explains that the position is different for workers who are expected to perform activities for all or most of a shift and are only permitted to sleep between tasks where possible (such as napping when not busy). In such cases, it is likely that the NMW must be paid for the whole of the shift, including for any time spent asleep, on the basis that the worker is in effect working all of that time. The guidance also confirms that the NMW will be payable for time spent asleep if the employer does not provide workers with suitable sleeping facilities.

The BEIS guidance on the types of work and the working hours for which you must pay the minimum wage can be found here.

Maya Forstater v CGD Europe and Others UKEAT/0105/20/JOJ – ‘Gender critical’ views held to be philosophical belief

The Employment Appeal Tribunal (“EAT”) has held that ‘gender critical’ beliefs, including a belief that biological sex is real, immutable and not to be conflated with gender identity, is a ‘philosophical belief’ protected under the Equality Act 2010 (“EqA 2010”).

The Claimant in this high profile case, Maya Forstater (“Ms Forstater”), posted a series of tweets questioning the proposed reforms to the Gender Recognition Act 2004, which would enable people to self-identify and legally transition from the gender assigned to them at birth without a medical diagnosis. She believes trans women holding certificates that recognise their transgender identity cannot describe themselves as women. The company engaging her as a consultant at the time, Center for Global Development (“CGD”), received complaints that some of her tweets were ‘transphobic’, and her contract was not renewed. Ms Forsater complained of direct discrimination on grounds of belief.

In the first instance the Employment Tribunal found that Ms Forstater’s “view, in its absolutist nature, [was] incompatible with human dignity and fundamental rights of others” and she was not entitled to ignore the rights of a transgender person and the “enormous pain that can be caused by misgendering”.

In the EAT, Mr Justice Chowdhury said the Employment Tribunal had “erred in law” and that Ms Forstater’s belief stisfied the criteria test for what will amount a ‘philosophical belief’ as set out in the case of Grainger plc v Nicholson [2010] (“Grainger V”). The Tribunal had been drawn into considering the validity of the Claimant’s beliefs rather than limiting itself to the determination of the question of whether the belief was protected under the EqA 2010. The EAT held that a philosophical belief would only be excluded for failing to satisfy Grainger V if it was the kind of belief the expression of which was akin to Nazism or totalitarianism and therefore justifiably be restricted under Articles 9 (freedom of thought, conscience and religion) and 10 (freedom of expression) of the European Convention on Human Rights. It stated that “beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection” (under the EqA 2010).

This is a clear decision which establishes that gender critical beliefs can be protected under the EqA 2010 and highlights the importance of free speech, but it is important to note that it is not a justification for harassment and discrimination against trans persons. In its judgment, the EAT specifically emphasised that it was not expressing a view on the merits of either side of the transgender debate, its decision “does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity” and it does not mean that employers will not be able to provide a safe environment for trans persons. Crucially, the decision does not impact on the protection trans persons have under the EqA 2010, as with any other protected characteristic. As the EAT noted, the manner in which an employee manifests their gender critical beliefs in the course of their employment could amount to discrimination or harassment under the EqA 2010 which employers would be liable for.

What is going to be difficult for employers is managing conflicting beliefs within the workforce where both are protected. Employers would be well advised to review their equal opportunities and anti-harassment policies and appropriate training in this area. It is important to note that the appeal was focused on a particularly narrow preliminary point in relation to the Claimant’s claim, whether her belief was one which amounts to a philosophical belief under the EqA 2010. We do not think this is the last we will hear on this case as it is remitted back to the Employment Tribunal to proceed.

The full judgment can be accessed here.

Gender critical views held to be philosophical belief

 The Employment Appeal Tribunal (“EAT”) has held that ‘gender critical’ beliefs, including a belief that biological sex is real, immutable and not to be conflated with gender identity, is a ‘philosophical belief’ protected under the Equality Act 2010 (“EqA 2010”).

The Claimant in this high profile case, Maya Forstater (“Ms Forstater”), posted a series of tweets questioning the proposed reforms to the Gender Recognition Act 2004, which would enable people to self-identify and legally transition from the gender assigned to them at birth without a medical diagnosis. She believes trans women holding certificates that recognise their transgender identity cannot describe themselves as women. The company engaging her as a consultant at the time, Center for Global Development (“CGD”), received complaints that some of her tweets were ‘transphobic’, and her contract was not renewed. Ms Forsater complained of direct discrimination on grounds of belief.

In the first instance the Employment Tribunal found that Ms Forstater’s “view, in its absolutist nature, [was] incompatible with human dignity and fundamental rights of others” and she was not entitled to ignore the rights of a transgender person and the “enormous pain that can be caused by misgendering”.

In the EAT, Mr Justice Chowdhury said the Employment Tribunal had “erred in law” and that Ms Forstater’s belief satisfied the criteria test for what will amount a ‘philosophical belief’ as set out in the case of Grainger plc v Nicholson [2010] (“Grainger V”). The Tribunal had been drawn into considering the validity of the Claimant’s beliefs rather than limiting itself to the determination of the question of whether the belief was protected under the EqA 2010. The EAT held that a philosophical belief would only be excluded for failing to satisfy Grainger V if it was the kind of belief the expression of which was akin to Nazism or totalitarianism and therefore justifiably be restricted under Articles 9 (freedom of thought, conscience and religion) and 10 (freedom of expression) of the European Convention on Human Rights. It stated that “beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection” (under the EqA 2010).

This is a clear decision which establishes that gender critical beliefs can be protected under the EqA 2010 and highlights the importance of free speech, but it is important to note that it is not a justification for harassment and discrimination against trans persons. In its judgment, the EAT specifically emphasised that it was not expressing a view on the merits of either side of the transgender debate, its decision “does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity” and it does not mean that employers will not be able to provide a safe environment for trans persons. Crucially, the decision does not impact on the protection trans persons have under the EqA 2010, as with any other protected characteristic. As the EAT noted, the manner in which an employee manifests their gender critical beliefs in the course of their employment could amount to discrimination or harassment under the EqA 2010.

What is going to be difficult for employers is managing conflicting beliefs within the workforce where both are protected. Employers should consider reviewing their equal opportunities and anti-harassment policies and appropriate training in this area.

It is important to note that the appeal was focused on a particularly narrow preliminary point in relation to the Claimant’s claim, whether her belief was one which amounts to a philosophical belief under the EqA 2010. We do not think this is the last we will hear on this case as it is remitted back to the Employment Tribunal to proceed.

The full judgment can be accessed here.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 21

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 21’ – with Keith Land and Catherine Hope. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • Hybrid working – do we need to change our employment contracts and policies?
  • Should an internal disciplinary process be paused in circumstances where an employee makes a data subject access request?
  • Can we withdraw a notice of redundancy if there is an upturn in work while an employee is working their notice period?

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Sintons Employment Law E-Bulletin – Issue 75

  • Acas publishes advice on long Covid for employers and workers
  • Flatman v Essex County Council UKEAT/0097/20 – Confirmation that employers cannot cure a fundamental breach once committed
  • Maternity Action publishes proposals to reform shared parental leave
  • The Queen’s Speech: Employment implications

Acas publishes advice on long Covid for employers and workers

Acas has published advice for employers and workers in response to the growing impact of long Covid in the workplace. This includes a long list of symptoms associated with the condition which can last weeks or months after the initial infection has gone, ranging from fatigue to memory and concentration difficulties.

The guidance suggests that upon diagnosis, employers and workers should discuss the potential impact of long Covid as early as possible, and work together to consider flexible working options and adjustments which could support staff suffering from this condition. Acas also confirms that, despite the variations in the condition, the usual rules for sickness absence and sick pay will apply when a worker is off sick due to long Covid.

With the Office for National Statistics estimating that over one million people have reported experiencing long Covid, this is likely to be an important issue over the coming years.

The full guidance can be found here.

Flatman v Essex County Council UKEAT/0097/20 – Confirmation that employers cannot cure a fundamental breach once committed

The Employment Appeal Tribunal (“EAT”) has reaffirmed that, once committed, a fundamental breach cannot be cured.

In this case, Ms Flatman was employed as a Learning Support Assistant, a role which involved daily lifting of a disabled pupil. She repeatedly requested manual handling training over a period of many months but this was not forthcoming. She was eventually signed off sick with back pain. She was advised that, upon her return, she would not be required to lift the pupil and would be assigned to another class, as well as being promised training. However, she resigned and claimed constructive unfair dismissal.

Her claim was dismissed in the first instance with an employment tribunal finding that her employer had not been in fundamental breach of its implied duty to take reasonable care for her health and safety. They found that communication when Mrs Flatman returned demonstrated genuine concern.

Ms Flatman appealed and this was allowed. The EAT found that her employer had breached the implied duty to provide a safe working environment by failing, despite Ms Flatman’s repeated requests, to provide training over many months when Ms Flatman was required to lift a pupil. The employment tribunal has been wrong to only look at the overall picture at the point of resignation. The focus should have been on whether, at any point during the relevant period, the breach had become fundamental (here it had due to the increased and continued risk to Mrs Flatman and the actual harm caused), and whether the contract had been affirmed (it had not here). The EAT found that the breach had become fundamental at the latest when Ms Flatman went off sick. Statements of intention can be relevant if they are accompanied by action, but they are less significant than in cases involving the implied duty of trust and confidence.

This decision is a useful reminder that a fundamental breach cannot be cured by an employer’s subsequent actions. A fundamental breach of contract, such as the one demonstrated in this case, will entitle an employee (with two years’ service) to resign in response and claim constructive dismissal, despite any further action taken by an employer. Employers should take particular note and make sure they are aware of the duties implied into every employment contract, including those such as the implied duty of trust and confidence.

Maternity Action publishes proposals to reform shared parental leave

Maternity Action has published a report on the failure of the current shared parental leave (“SPL”) scheme and has recommended proposals for reform. With take up by eligible fathers for the SPL scheme reaching just 3.6% during 2019/20 (against a Government target of 25%), Maternity Action considers it unfit for purpose.

There is recognition that the pandemic has increased this problem, with the Women and Equalities Committee February 2021 report on the gendered impact of Covid 19 finding that the gender childcare gap increased during the pandemic.

In the report Maternity Action proposes that a new system should be introduced which provides individual, non-transferable, rights for each parent, as sharing the leave between parents has not workers. The SPL scheme is a complex one and poorly understood by parents. Maternity Action proposes a 6-6-6 approach to replace the current statutory maternity and SPL scheme. The first 6 months of leave would be reserved for the mother and there would then be six months of non-transferrable leave for each parent. The idea is that this could be taken concurrently or consecutively, all at once or in smaller weekly or monthly blocks, within the 18 month period after birth.

The report also recommends:

  • that maternity, paternity and parental leave and pay should be day one rights despite someone’s status;
  • the strengthening of the right to return to the same job; and
  • that statutory leave pay should be increased to at least the national minimum wage level, and should be increased in time to the real living wages and wage replacement levels.

A full copy of the report can be found here.

The Queen’s Speech: Employment implications

On 11 May the Queen’s Speech set out the Government’s legislative programme for the coming year.

What was missing was any reference to the Employment Bill which had previously been promised by Boris Johnson in response to concerns that workers’ rights could be eroded following Brexit.

Mention was made of the employment tribunal procedure being aligned with that of other tribunals in the Unifed Tribunal structure to aid the claims backlog.

The Skills and Post 16 Education Bill in support of a “Lifetime Skills Guarantee” to enable flexible access to education and training throughout people’s lives may be of most interest to employers. The follows a previous Government commitment to give employers a central role in shaping reforms in order that local labour needs could be met.

The Government said that it will bring forward measures to address racist and ethnic disparities, but it remains unclear at this stage what measures these will be.

In terms of immigration, new legislation to strengthen the UK’s boarders was promised to support the Government’s “New Plan for immigration”. New legislation is set to deter illegal entry to the UK and make it easier to remove individuals from the UK.

Roadmap out of lockdown: Employment law considerations

Sintons’ Employment team, in partnership with Reed HR, have recorded the following complimentary online employment law seminar, where they discussed employment law considerations as lockdown eases.

Please click on the play button in the bottom left corner of the below video image to start viewing.

To follow the full size slides the team are using throughout the presentation, please click here prior to commencing watching.

We have also included a podcast version should you wish to listen to the seminar again at your leisure, the link is also below.

Employers supported through roadmap out of lockdown

The roadmap out of lockdown and its impact on employers is to be examined by employment specialists at Sintons in an upcoming event.

As lockdown continues to ease, and the UK gets set for the June 21 when restrictions on social contact are set to be lifted, there are many implications for employers to consider.

From the continuation of home working and virtual contact, to bringing back employees into the business after furlough leave, the spectrum of issues being faced by businesses will be discussed by experts from Sintons, together with Reed HR.

During the pandemic, Sintons became a trusted advisor to both new and existing clients as they came to terms with the fast-changing situation around the running of their business and retention and deployment of staff.

Through providing up-to-the-minute advice on developments around the Job Retention Scheme and other Government COVID-19 measures, Sintons became the go-to advisor for many in negotiating their way through the uncertainty.

By holding regular Q&A webinars and online events, alongside the use of content and social media to convey updates and information, employers have benefitted from free advice and guidance during some of the most challenging times they have ever faced.

Now, through this new event, held on May 20, employers can help prepare for the next phase, as businesses emerge from the pandemic restrictions into the ‘new normal’ everyday life.

“We’ve been by the side of countless business owners during the pandemic, helping to provide advice and clarity during times when that has been absent elsewhere – they have faced some of the biggest challenges imaginable, which were thrust upon them overnight from March 23 last year, and we are pleased to have guided so many through it to this point,” says Keith Land, head of employment at Sintons.

“Now, as we prepare to emerge from restrictions, it’s far from ‘business as usual’ for many businesses, as the last year has necessitated so many changes. Through holding this event, we will advise employers on the very latest advice and guidance in employment law, and offer support on how to negotiate this.

“As we continue to move out of restrictions and rebuild from the impact of the past year, we appreciate that the challenges for businesses do not end here. We’ll continue to support our businesses regionally and nationally in every way we can, as we move forward together.”

* The Roadmap out of Lockdown event will be held on Thursday, May 20, from 10am to 11.30am. It will be a virtual event due to continuing social restrictions. To register attendance, please contact Peter Jennings on peter.jennings@sintons.co.uk or call 0191 226 7907.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 20

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 20’ – with Catherine Hope and Angela Carver. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • Sabbaticals and the impact on holiday entitlement
  • Sick leave and fit notes
  • An ET1 relating to a former employee

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Sintons Employment Law E-Bulletin – Issue 74

  • New shielding guidance to those categorised as extremely clinically vulnerable
  • Increase in rates of pay from 1 April
  • IR35 changes from 6 April 2021
  • Post-Employment Notice Pay- new formula from 6 April
  • Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad and another (t/a Clifton House Residential Home) [2021] UKSC 8 – carers are not entitled to minimum wage while they sleep at their workplace
  • Update to Vento bands

 

New shielding guidance to those categorised as extremely clinically vulnerable

Public Health England has issued new guidance to those categorised as extremely clinically vulnerable. As of 1 April 2021, they are no longer advised to shield and are no longer eligible for Statuary Sick Pay or similar benefits automatically as a result of being advised to shield.

Although clinically extremely vulnerable people will no longer be advised to shield, they are still advised to take extra precautions. The guidance states that people are still advised to continue working from home where possible, but if people are unable to do so, employers are required by law to take steps to make workplaces COVID-19 secure and should discuss this with their employees.

The guidance can be found here.

Increase in rates of pay from 1 April

From 1 April 2021, the National Living Wage (“NLW”) increased 2.2%, from £8.72 to £8.91 an hour. This year, the Chancellor, Rishi Sunak, announced that the NLW will be extended to 23 and 24-year-olds, representing a substantial pay rise of almost 9%.

The National Minimum Wage (“NMW”) rates for those under 25 will also increase as follows:

  • 21-22 Year Old Rate: £8.20 to £8.36
  • 18-20 Year Old Rate: £6.45 to £6.56
  • 16-17 Year Old Rate: £4.55 to £4.62
  • Apprentice Rate: £4.15 to £4.30
  • Accommodation Offset: £8.20 to £8.36

It is important to remember that apprentices aged 19 or over, who have completed their first year, must be paid at least the NMW rate for their age.

From 4 April 2021, the weekly rates of statutory family leave (Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay and Statutory Parental Bereavement Pay) increased from £151.20 to £151.97, or 90% of an employee’s average weekly earnings, whichever is lower.

The Statutory Sick Pay (“SSP”) rate also increased from 6 April 2021 to £96.35 per week. The government’s SSP calculator will help you to work out how much SSP employees are entitled to.

All of these statutory pay changes will need to be reflected in employers’ payroll, as well as any information regarding the expenses and benefits provided to employees.

IR35 changes from 6 April

The changes to the off-payroll rules were due to come into effect on 6 April 2020. This was delayed last year until April 2021 because of the coronavirus pandemic.

As of 6 April 2021, medium and large companies in the private sector that contract with personal service companies (“PSC”) for the provision of worker’s services will now have to account for tax and national insurance through PAYE in the same way as the public sector has been required to do since April 2017 (off-payroll working rates). The private sector end clients will be responsible for determining the tax status of contractors who work through PSCs and whether they are therefore caught by the IR35 rules.

The IR35 rules will apply where there would have been an employment relationship between the engaging business and the individual if the individual had engaged directly with the business rather than through the PSC.

Despite this, and in anticipation of these changes, it is still essential that medium and large businesses carry out an assessment to determine whether the new rules under IR35 apply to their independent contractors and review their contracts and pay arrangements. Small businesses will not be caught by the changes.

Post-Employment Notice Pay – new formula from 6 April

The government has introduced an alternative Post-Employment Notice Pay (“PENP”) calculation to use where an employee’s pay period is defined in months, but their contractual notice period or post-employment notice period is expressed in weeks. It is stated that the measures are aimed at removing unintended outcomes and to bring fairness and clarity to the legislation on termination payments.

The new formula provides that, instead of using the number of days in the pay period, 30.42 can be used as “P” in the PENP calculation, as it is the mean average number of days in a month. This measure ensures that PENP does not vary according to the number of days in the monthly pay period preceding the trigger date where the remuneration for that period would not have varied.

The measure also aligns the tax treatment of PENP for individuals who are non-resident in the year of termination of their UK employment with the treatment of all UK residents. Currently PENP is not chargeable to UK tax if an employee is non-resident for the tax year in which their employment terminates.

The changes took effect from 6 April 2021 and apply to those individuals who have their employment terminated, and where the termination payment is received, on or after 6 April 2021.

Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad and another (t/a Clifton House Residential Home) [2021] UKSC 8 – carers are not entitled to minimum wage while they sleep at their workplace

The Supreme Court has ruled in this case that carers are not entitled to be paid the national minimum wage when they are on sleep-in shifts. This does not mean people on ‘sleep-in’ shifts aren’t ‘working’; but they’re not ‘working’ for the purpose of the national minimum wage rules unless they’re both awake and doing work for their employer.

Claire Tomlinson-Blake, a Mencap support worker in the East Riding of Yorkshire, appealed against a Court of Appeal ruling that carers are only entitled to the national minimum wage when they are required to be awake for work – and not while asleep. She challenged the decision in the Supreme Court alongside a linked appeal brought by John Shannon, a Surrey care home worker.

The Supreme Court dismissed both appeals. In the judgment, Lady Arden said that “sleep-in workers… are not doing time work for the purposes of the national minimum wage if they are not awake”. She added: “The sleep-in worker who is merely present is treated as not working for the purpose of calculating the hours which are to be taken into account for national minimum wage purposes and the fact that he was required to be present during specified hours was insufficient to lead to the conclusion that he was working.”

The decision has received conflicting reactions. It has provided some welcome clarity following years of inconsistent authorities on the issue and will be a relief for care providers concerned about potential claims up to an estimated £400m in backpay. However, care workers are calling for changes in how workers are remunerated so this is unlikely to be the last we hear on this matter.

Update to Vento bands

The rates for injury to feelings awards in discrimination cases increased from 6 April 2021 as follows:

  • lower band £900 – £9,100 (for “less serious cases”);
  • middle band £9,100 – £27,400 (for “serious cases which do not merit an award in the highest band”); and
  • upper band £27,400 – £45,600 (for “the most serious cases”).

Only in “the most exceptional case” would an award exceed the top band.

These will apply to claims presented on or after 6 April 2021.

An Employment law overview

Associate Catherine Hope from the Employment Team at Sintons recently recorded a webinar for Founders Friday, where she gave an Employment law overview.

Please click on the play button in the bottom left corner of the below video image to start viewing.

We have also included a podcast version, the link is also below.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 19

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 19’ – with Fiona Campbell and Angela Carver. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • April 2021 changes
  • Business Immigration

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Coronavirus Job Retention Scheme – Update

Yesterday (3 March 2021), the Chancellor, Rishi Sunak, delivered the Spring 2021 Budget. He announced that the Coronavirus Job Retention Scheme (“CJRS”) will be extended for a further five months until 30 September 2021, to support those businesses who continue to be impacted by the COVID-19 pandemic.

The CRJS rules will mostly remain the same with a few minor changes in the near future. Employers will continue to be able to claim 80% of an employee’s usual salary for hours not worked (up to a maximum of £2,500 per month). There will continue to be no employer contributions beyond National Insurance contributions and pensions required in April, May, and June. However, from July, the Government will introduce an employer contribution towards the cost of unworked hours. This will be 10% in July and 20% in August and September.

In terms of which employees can be placed on furlough leave under the CJRS, for periods on or before 30 April 2021, employers can claim for employees who were employed on 3 October 2020, as long as they made a PAYE RTI submission to HMRC between the 20 March 2020 and 30 October 2020, notifying a payment of earnings for that employee.

For periods starting on or after 1 May 2021, employers will be able to claim for employees who were employed on 2 March 2021, again as long as they made a PAYE Real Time Information (RTI) submission to HMRC between 20 March 2020 and 2 March 2021, notifying a payment of earnings for that employee. Details of how employers should calculate their claims for periods starting on or after 1 May 2021 will be provided in updated guidance in due course.

Full guidance can be found here.

If you have any questions about the CJRS, or any other employment law issues, please contact a contact a member of our Employment Team.

Budget reaction: Employment

Keith Land, head of employment at Sintons, analyses the two big employment announcements in yesterday’s Budget – the extension of the furlough scheme and expansion of support for self-employed people.

Furlough extension – the hope is that this will help avoid some redundancies that would otherwise have taken place at the end of April, giving employers the chance to see how business fares as the restriction are lifted over the next few months.

The extension until the end of September recognises that a return to ‘normal’, and what that will actually look like, will take some time, whilst also acknowledging that the support cannot be provided indefinitely. There will still be a lot for employers to consider, such as what the ongoing health and safety requirements in their industry will be going forward, and it is not the case that demand will immediately bounce back to where it was for all, but at least this gives a bit more time and support while employers see what this looks like.

That being said, although the further extension provides some extra breathing space, it can’t hide the fact that there is going to be an ongoing impact that can’t be sustained in all areas. It is also important not to underestimate the impact being on furlough leave, and the uncertainty around this may have had on employees. Even where staff are able to return to work, this is going to be a big transition for them, and taking steps to build their confidence and incentivise them again will be important.

Self-employed support – it is good to see that the eligibility criteria for access to grants under the Self-Employment Income Support Scheme has opened up to include individuals who are newly self-employed and hadn’t started submitting tax returns until 2019/20.

However, there are still a number of people who will continue to fall through the gaps here as the support still excludes certain groups such as those with historical trading profits above £50,000, directors of limited companies and those whose self-employed earnings made up less than half of their income.

Sintons Employment Law E-Bulletin – Issue 73

  • Allay (UK) Ltd v Gehlen UKEAT/0031/20 – employer could not rely on “stale” equality and diversity training as a defence to show it had taken all reasonable steps to prevent harassment.
  • Uber BV and others v Aslam and others [2021] UKSC 5 – Supreme Court confirms Uber drivers are workers
  • Employers named and shamed by BEIS for failing to pay national minimum wage

 

Allay (UK) Ltd v Gehlen UKEAT/0031/20 – employer could not rely on “stale” equality and diversity training as a defence to show it had taken all reasonable steps to prevent harassment.

The Employment Appeal Tribunal (“EAT”) upheld an Employment Tribunal’s finding that an employer had failed to take all reasonable steps to avoid an employee being racially harassed by another and could not rely on “stale” equality and diversity training.

Mr Gehlen (the “Claimant”) was employed by Allay (UK) Ltd (the “Respondent”) for 11 months. Following his dismissal the Claimant brought proceedings in the Employment Tribunal for direct race discrimination and harassment related to race. The Employment Tribunal upheld the complaint of harassment related to race and found that racial comments were regularly made to the Claimant. The tribunal also found that despite two managers being aware of the racist comments, they took no action.

The Respondent argued that it had taken all reasonable steps to prevent the harassment. It maintained that it had an equal opportunity policy and an anti-bullying and harassment procedure in place and that staff had undertaken equality and diversity training and bullying and harassment training. However, the EAT concluded that whatever training had taken place was no longer effective as racist comments had regularly been made to the Claimant, which the Respondent characterised as “banter”.

The EAT emphasised that merely having an equal opportunity policy and carrying out “brief and superficial” training is not enough for an employer to escape liability for acts of discrimination carried out by its employees. Employers should ensure they carry out thorough equality and diversity training on a regular basis to avoid it becoming “stale”, and if there is reason to believe that employees have forgotten or haven’t appreciated the training, it should be refreshed.

Uber BV and others v Aslam and others [2021] UKSC 5– Supreme Court confirms Uber drivers are workers

The Supreme Court has confirmed that Uber drivers are workers for the purposes of the Employment Rights Act (“ERA”) 1996, the National Minimum Wage Act (“NMWA”) 1998 and the Working Time Regulations (“WTR”) 1998.

The claimants were private hire vehicle drivers providing their services through the Uber smartphone application (the “Uber app”). They brought claims against their employer, Uber, for failure to pay the minimum wage, and failure to provide paid leave. The respondents asserted that the claimants were not workers and were not afforded protection under the ERA 1996, the NMW 1998 and the WTR 1998.

The Employment Tribunal found that the respondents were workers and that they were working whenever they (a) had the Uber app switched on; (b) were within the territory in which they were authorised to work; and (c) were able and willing to accept trips. These findings were upheld by the Employment Appeal Tribunal and the Court of Appeal.

Uber appealed to the Supreme Court who unanimously dismissed their appeal. The Supreme Court held that the Employment Tribunal was justified in its findings and considered the following factors as part of its judgment:

  1. Uber sets the fare and so dictates the drivers’ pay;
  2. the contract terms are dictated by Uber;
  3. Uber can impose penalties on drivers if they cancel or decline too many trips once logged on to the Uber app;
  4. Uber exercises significant control over how services are delivered; and
  5. Uber restricts communications between the driver and passenger.

With approximately 5 million people in the UK currently employed in the gig economy, this case will have wide ranging implications in how workers are defined in the modern and increasingly technology-influenced workplace.

Employers named and shamed by BEIS for failing to pay national minimum wage

On 31 December 2020, the Department for Business, Energy and Industrial Strategy (“BEIS”) published a list of 139 employers who had collectively failed to pay £6.7 million to over 95,000 workers between September 2016 and July 2018. The offending companies range in size from small businesses to large multinationals who employ thousands of people across the UK.

This is the first time the Government has “named and shamed” employers since the scheme was paused in 2018 while the process was reformed. The publication is intended to serve as a warning to employers that the Government will take action against those who fail to pay employees properly. One of the main causes of National Minimum Wage (“NMW”) breaches was where low-paid employees were required to cover work costs, such as paying for uniform, training or parking fees which would take them below the NMW threshold. Some employers also failed to raise employees’ pay following birthdays which should have moved them into a new NMW bracket.

Employers who under pay workers must pay back arrears of wages to workers at current minimum wage rates. Employers also face financial penalties of up to 200% of arrears, capped at £10,000 per worker, which are paid to the Government.

The Government has announced a measured increase in the National Living Wage (“NLW”) and NMW rates, which will come into effect from April. Every worker is entitled to the NMW, no matter their age or profession. The rates will increase as follows:

  • NLW: £8.72 to £8.91
  • 21-22 Year Old Rate: £8.20 to £8.36
  • 18-20 Year Old Rate: £6.45 to £6.56
  • 16-17 Year Old Rate: £4.55 to £4.62
  • Apprentice Rate: £4.15 to £4.30
  • Accommodation Offset: £8.20 to £8.36

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 18

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 18’ – with Fiona Campbell and Catherine Hope. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • I understand the Government guidance will continue to be to work from home where possible, but I do not feel my employees are working as effectively at home as in the office. What are my options?
  • I made a number of employees redundant as trade disappeared from my business. However, business has started to return and I have hired some new people. Am I at risk of unfair dismissal claims from the employees I made redundant and on what grounds could I defend any claims?
  • The Government Coronavirus Job Retention Scheme is currently due to end on 31 April. Is there any other Government support available after this date? I cannot sustain my staff salaries without financial assistance until business returns to pre-lockdown levels, but I am concerned this will be too late.

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Supreme Court confirms Uber drivers are workers

The Supreme Court has today (19 February 2021) handed down judgment in what can be considered a landmark case in employment status.

Uber BV and others -v- Aslam and others [2021] UKSC 5 has confirmed that Uber drivers are workers for the purposes of the Employment Rights Act (“ERA”) 1996, the National Minimum Wage Act (“NMWA”) 1998 and the Working Time Regulations (“WTR”) 1998.

Background

The claimants were private hire vehicle drivers providing their services through the Uber smartphone application (the “Uber app”). They brought claims against their employer, Uber, under the ERA 1996, NMWA 1998, and the WTR 1998 for failure to pay the minimum wage, and failure to provide paid leave. The respondents asserted that the claimants were not workers and were not afforded protection under this legislation.

The Employment Tribunal found that the respondents were workers and that they were working whenever they (a) had the Uber app switched on; (b) were within the territory in which they were authorised to work; and (c) were able and willing to accept trips. These findings were upheld by the Employment Appeal Tribunal and the Court of Appeal.

Uber appealed again to the Supreme Court. The issues to decide were a) whether the drivers were considered workers; and b) if they were, what periods constituted their working time.

The Supreme Court

The Supreme Court unanimously dismissed Uber’s appeal and has confirmed that the claimants are workers for the purposes of the ERA 1996, NMWA 1998, and the WTR 1998. The Supreme Court held that the Employment Tribunal was justified in its findings and considered the following factors as part of its judgment:

  1. Uber sets the fare and so dictates the drivers’ pay;
  2. the contract terms are dictated by Uber;
  3. Uber can impose penalties on drivers if they cancel or decline too many trips once logged on to the Uber app;
  4. Uber exercises significant control over how services are delivered; and
  5. Uber restricts communications between the driver and passenger.

The question as to whether individuals providing services in the gig economy should enjoy some or all of the rights and protections associated with worker status has been a topic of debate for some time, particularly in situations where there is an inequality of bargaining power. With approximately 5 million people in the UK currently employed in the gig economy, this case will have wide ranging implications in how workers are defined in the modern and increasingly technology-influenced workplace.

If you have any questions or would like to discuss any of the issues raised in this article please contact a member of our Employment Team.

‘We’re proud to have helped make Sintons the firm it is’

As Sintons celebrates its 125th anniversary, some of its team share their thoughts and experiences of being part of the firm and playing their role in its growth. From those who have been at Sintons for over 30 years to those who have joined more recently, here they discuss what makes the firm stand out in the competitive legal marketplace, while also being a great place to work.

Amanda Maskery, partner and head of NHS healthcare

“I have been at Sintons now for nearly 20 years and during that time I have progressed from trainee to partner level and more recently to head of our fast-growing NHS Healthcare team. Many of my clients have been with Sintons for years and grown with me and I think a large part of that is because we have built such strong and trusting relationships with them.

The firm has grown significantly since I first started working here – it has doubled in size.  However, the same culture, values and traditions are still imbedded which means whilst the firm changed in size, it still embraces the supportive nurturing culture you only find at Sintons which cascades from the top down.

As I began life as a trainee at Sintons, it’s fantastic to be able to support others in progressing and achieving their goals. We have a strong team and great dynamic and that is evident to our young lawyers who bring with them a refreshing approach to the Sintons culture.”

Leah Greenwell, solicitor apprentice

“Starting my career, it was important to find a firm with local roots and a reputation for providing high quality training. The first-class levels of service Sintons provide is testament to the standard of training they deliver, and there was no question which firm I wanted my career to start in.

Sintons have always focused on ensuring that my development is put first and have laid the foundations for a successful career as a solicitor. Being a full service firm has given me the opportunity to experience all areas of law and has exposed me to a variety of high value and complex work. I look forward to what the future holds for me at Sintons.

Although the marketplace is competitive, Sintons longstanding history and their presence, both locally and nationally, will always place them at the forefront.”

Anne Smith, secretary

“I started at Sintons in 1986 and this year in November will have been here for 35 years.

I still remember my first day like it was yesterday. Everyone was so friendly and welcoming, and it is still like that today – almost like a second family to me.

“I have mainly worked in private client and worked for lots of fee earners and partners. In 2000 I started working for Steve Freeman who then went on to become a Partner and Head of the Private Client Department. I have now worked for him for 21 years this year and I can honestly say it has been a pleasure and an honour to work for such a lovely man – we have a great working relationship. I also work with the rest of the Family Department and work for such lovely fee earners.

I am also very proud to say that my daughter Emma also works for Sintons in the Conveyancing Department and she also loves her job and the team she works with.

I have seen many changes over the years but one thing remains constant – Sintons is a great place to work. I have made lifelong friends here and they will remain so.”

Emelie Vardon, solicitor

“Sintons’ heritage was very important to me when choosing to join Sintons. I came here as a trainee solicitor in 2017 and making the right choice for my future career was crucial. Knowing Sintons’ reputation and history, I couldn’t have made a better decision.

This is such a great place to work with a warm and welcoming environment. Following the completion of my training contract in 2019, I joined our developing Wills, Trusts and Estate Disputes team. Under Emma Saunders’ excellent leadership and support, my first year as a qualified solicitor has been excellent groundwork for my future career in this specialist area of law.

As a full-service law firm, I consider that Sintons is well-placed in the competitive market.”

Mark Dobbin, partner and head of real estate

“I joined Sintons as a trainee in September 1997. At the time the firm consisted of about 80-90 people. We were operating from an office in Portland Terrace in Jesmond, it was like a rabbit warren for a new starter as it was multiple old terraced houses converted and joined on different floors.

The main changes have been the massive growth in size and expertise, plus multiple office moves until finally landing at the Cube. When I qualified in 1999 myself and the partner at the time (Andrew Walker) were the Sintons commercial property department. Since then we have grown significantly.

Sintons has always been and remains a great place to work, we have an excellent team in Real Estate and will continue to succeed because of the efforts of our staff.”

Pippa Aitken, senior associate

“Sintons was much smaller when I joined in 1998. It was a friendly, family firm renowned for its reputation in private client and personal injury work. There was no dedicated corporate and commercial department.

“I was the only trainee and was sent on all sorts of weird and wonderful jobs – witnessing wills, attending infant settlements and the odd trip to the bank for the accounts department!

Sintons has become a lot more sophisticated in its working procedures and there is a much faster pace of life with emails being the most popular form of communication. I have seen some great lawyers leave and some great lawyers arrive but everyone soon seems to inherit the ‘old’ Sintons sense of fun, respect and teamwork.

Sintons is in a great place going forward. Virtual working has opened up some great opportunities to spread our wings and engage with clients even better than before.”

Sarah Smith, partner and head of licensing

“The firm has almost doubled in size since I started in  2005. The range of services offered by the firm has expanded quite significantly since then too, making the firm much more attractive to commercial clients.

When I first came to Sintons, I headed up the department with Lucy Winskell (now chair of NELEP and Pro Vice-Chancellor of Northumbria University). Since her departure I have headed it up myself. In spite of that, the department has grown in its client base and the amount of work we deal with on an annual basis.

With the growth in size and services we continue to see, I think Sintons are very well placed in the market to take advantage of opportunities going forward.”

Astrid Stevenson, secretary

“I joined Sintons on 21 October, 1997, and will have been here for 25 years this year.

I think when I started there were only about 80 people working at Sintons. We were based in Portland Terrace then moved to Osborne Terrace. We didn’t have open plan working like we have now, we had little rooms with approximately 3 secretaries in each room. I shared a room with Anne Smith from the first day I arrived and we have been firm friends ever since. Fee earners all had their own office. Basically, it was like a rabbit warren.

The staffing levels were very much smaller then, as I say about 80 staff then and now we have more than double that number. The computer system (Word Perfect 5.1) and equipment were top of the range for the time, and I think that has carried on until this day, our IT department have the latest of everything and are basically top notch.

Since I started 25 years ago, the firm has changed and has always moved forward with the times.  When I started there were no female partners. Hilary Parker and Karen Simms became the first, which was a very welcome breakthrough for Sintons.

We were like one big happy family with lots of social events, which thankfully still happen to this day, keeping the ethos of Sintons going.

I think if I didn’t enjoy working here I wouldn’t be celebrating my 25th years this year at Sintons. I’ve worked for the head of dispute resolution Angus Ashman for 24 of those years, and I think we work well together because we work as a team.

This is a very nice place to work, the people are all friendly and If anyone needs help with anything there is always someone there to help. I always think we are only as good as the tools we work with and I must say Sintons do provide all the best equipment and people and it makes the job so much easier if you have things like that in place.”

Sintons’ development – reflections from the Chairman

Sintons’ chairman, Alan Dawson, is one of the firm’s longest-serving people, having joined in 1980. Here, he shares his thoughts on some of the biggest changes and advances he has seen in the past 41 years.

Technology

When I joined in 1980, we used manual typewriters, although thankfully electric typewriters had recently become available. There were no screens at that time, but over the years we added one-line screens to the typewriters, then that went up to three or four lines. It was the early 1990s before we introduced computers.

There were no colour photocopiers so all of the plans we copied were in black and white. We would have to go over them with coloured pens to make them the same as the original.

The introduction of fax in the 80s was a game changer, everything before then was done by Telex or telegram if we needed ‘instant’ communication. The only problem was that due to the paper fax machines used at that time, the print would fade – we’d go back to the file six months later and the sheet would be completely blank! We had to remember to photocopy the fax when they came in for use in our records.

With property completions, all bank-to-bank transfers involved getting an actual cheque from the bank, and then going to the office of the other solicitor in the transaction to inspect the deeds and then complete the deal. Fridays, the traditional completion day, were often spent going between solicitors’ offices in Newcastle.

When mobile phones were introduced, we had one mobile for the firm to use, we didn’t have one each. It was one of the brick-like phones with a huge battery, but it was a huge novelty.

Thankfully things have moved on hugely, and Sintons now has a first-rate technology and IT infrastructure, which enables us to offer a very efficient service to our clients while keeping their data fully secure.

Size of the firm

Back in 1980, we had about 36 people – now we have around 170.

We really started to grow from the mid to late 90s, and in 1998 we moved our offices from Portland Terrace in Jesmond to bigger premises in Osborne Terrace, which comprised three and a half houses next to each other with an overspill office further down the road. We imagined that would give us room to grow for the next 15 years – but within the next two or three years, it was already too small.

We came to The Cube in 2004 and at first didn’t use the top floor of our four-floor building, although within the next couple of years we had expanded into there.

Over the years, we have added many outstanding lawyers to our team, both through recruitment from other firms as well as training young people-in house. Our commitment to supporting aspiring lawyers through their training contract has been unfaltering – I joined as an articled clerk (or trainee, as it’s now known) and have progressed through the ranks.

As the firm has grown then so too has our back-office and support functions developed. We didn’t have the infrastructure we have now, so no HR, IT or marketing department.

Our accounts system was all manual, the cashier had to write everything by hand. There was one card per client, so if you had to borrow it, then they couldn’t make any more entries for that client until you returned it.

Our HR function was our office manager, who kept a record of who was off and the reasons for their absence – reading it now, some of the reasons are quite amusing!

Law firms weren’t allowed to advertise at all until the late 1980s, so the only kind of marketing we could do was through the Yellow Pages. Now, we operate at the very forefront of the sector, adopting digital way before many of our competitors, and that early investment is helping us to stay ahead in the marketplace.

Practice areas

In the 1980s when I joined, Sintons had a very significant insurance litigation practice which acted for four or five of the major national insurers. The revenue from that area of the business probably accounted for two thirds of our entire income. However, in the early 1990s, we recognised that reliance on a few large clients or a particular work stream was not the best way to develop the firm and could make us vulnerable. We therefore made concerted efforts to radically change our business model and to further grow the other practice areas we had operated in for many years, including private client, corporate and commercial and real estate, and they proved to be areas of strong development for us. They continue to be key areas of the business for us and will be central to our ongoing progress as a firm.

We also moved into claimant personal injury work, which really took off in the late 90s and early 2000s. More recently, we have developed our national reputation as specialists in catastrophic and serious personal injury work with a thriving specialist neurotrauma department which handles life-changing brain and spinal cord injury work.

National reach

In the early days, we were more of a regional firm with clients mainly across the North East, and some in the wider North. Occasionally, clients moved to elsewhere in England which helped us to reach out nationally on a small scale, but we didn’t have much of a national reach.

However, as we grew as a firm, we started to work on a more national basis and now on an international basis as well. The improvement of technology was also an important factor in enabling us to communicate with people wherever they were by phone or fax, but more recently by mobile phone, email or even video calling which has proved so important during the pandemic.

Through our efforts to grow individual areas of the business – which in many instances have demonstrated substantial growth over the course of a number of years, underpinned by the hard work of our people – we have been able to add outstanding new lawyers to the team, whether they have moved to Sintons from elsewhere or have been trained in-house.

Now, we have a number of areas of the business which are regarded in the highest terms nationally, including our healthcare team, which has grown its presence over the past 10 to 15 years to become a national leader in its field.

We continue to receive growing numbers of instructions from across the UK and wider afield in almost all areas of the business, as our capability and reputation as a firm builds further still.

Building on our heritage to create a strong future

1896 marked a year of historic new beginnings and breakthroughs.

The year that saw the first modern Olympic Games held in Athens;

The introduction of the X-ray;

The development of the first Ford vehicle, the Quadricycle.

And in such a landmark year as 1896, with events taking place which went on to change history, it is fitting that this was the year when Sintons was founded and the foundations laid for the firm that it would become.

Having been founded as Sutton Cheshire & Thompson on February 8, 1896, to serve the people of Newcastle, the firm then merged with John H. Sintons & Co in 1971 – later becoming Sintons – and has grown into one of the leading law firms in the North of England, acting for ever-increasing numbers of business and private clients both regionally and across the UK.

Over the past 125 years, Sintons has developed a reputation for the quality of its advice, and crucially, the deep and trusting relationships it builds with its clients borne out of the outstanding service it delivers to them.

There are so many momentous events and developments which have taken place over such a long period of time and the world has changed, and continues to change, beyond recognition.

However, throughout that period Sintons has been working alongside individuals, families, businesses and organisations for 125 years, adapting and changing to meet new challenges and will continue to do so for the years to come.

As a law firm for changing times, Sintons continues to evolve, as it has done since 1896, to ensure it stays at the forefront of the legal market and in the best possible position to deliver excellence to its clients.

“Over the past 125 years, we have continually shown we are innovators, we are leaders. We have never been afraid to take bold decisions,” says Christopher Welch, managing partner of Sintons.

“A great example of this is when we invested in our head office, The Cube, in 2004. We were moving to an area of the city which was largely undeveloped and were, largely, surrounded by the old Scottish and Newcastle plant. Looking around us now, this is a thriving, fast-growing and sought-after area, which is the site of huge investment from both business and academia. We had the foresight to buy into these brave future plans and the ambition to want to become part of it.

“In these changing times, we will continue to evolve and develop, as we have done throughout our history, to ensure that at all times we are delivering the very best service to all our clients while also building and investing in the firm from within.

“We have stood the test of time for 125 years and are committed to ensuring Sintons maintains the reputation and presence that has been built so carefully into the future.”

For Christopher, who joined Sintons in 2003, the main differentiator between Sintons and its competitors is its unfaltering commitment to clients.

While continuing to attract new clients nationally, the firm is rightly proud of its longstanding client base, which includes many who have been with Sintons through multiple generations of their family or business ownership.

“The firm’s absolute priority from day one has been our clients and ensuring they receive the highest standards of legal and personal service. Our reputation is built on those foundations, which were laid by our previous generations of Sintons’ lawyers, and is one we are proud to continue to develop further,” says Christopher.

“At Sintons, we care about what we do, how we do it and we never forget that the clients we are working with are depending on us for, often, some of the most momentous decisions of their lives. As a firm, we recognise both the privilege and the responsibility that goes with this, it is fundamental to how we work and to our values as a business.

“Our clients are the front, back and centre of everything we do. We’ve been there for them whenever they’ve needed us for 125 years and that will continue to be the case as we move forward.”

And building further on its reputation for leading the way in the legal marketplace, Sintons continues to innovate to stand out from the crowd.

Having carried out a full rebrand in early 2020, to give the firm a fresh yet timeless identity, Sintons continues to invest in its future.

“Our rebrand was a significant step for the firm,” says Christopher. “Our branding represents the firm that we are; bold, innovative and providing clear and confident advice to our clients – a firm that stands out from the crowd.

“The use of technology to better serve our clients has always been an essential part of our growth strategy. Our founding partners would be aghast at the thought that we were able to have virtually all our colleagues working remotely – with some as far away as the Cayman Islands and Texas – without any impact on client service.

“By investing heavily in our website and online presence, we have created a resource which is available to clients wherever they are in the UK or indeed the world, giving them immediate access to information and support in ways which weren’t available before.

“The legal sector isn’t always the first to embrace change, but we are rightfully proud of the reputation we have built for standing out in that respect. For 125 years, we have taken bold moves, we have never shied away from making investment to equip the business for the long-term, and we have shown foresight and innovation to make the firm what it is today.

“This is a landmark anniversary for us, and in uncertain times, the investment we have made for many years in our infrastructure, development of our people and strategic recruitment means we remain confident in our future and the service we can continue to provide to our clients and to the regional community of which we are a fundamental part.

“These truly are changing times – but with 125 years behind us then we must be doing something right!  We know that our business will continue to evolve, with further investments in technology and infrastructure changing how and where we work. However, as we move forward, what is clear is that Sintons will always be right there, by the side of our clients, as we have been since 1896.”

Law firm Sintons is marking its 125th anniversary

Since its foundation in 1896, Sintons has grown to become one of the leading law firms in the North of England with a client base which extends across the whole UK.

It has become known as a key advisor to businesses and individuals acting on major, complex matters, regionally, nationally and internationally.

In many of its practice areas, including business, healthcare, private client and neurotrauma, Sintons is regarded as one of the UK’s leading specialist advisors.

Sintons has built a well-deserved reputation for delivering expert legal advice and outstanding service to every client, which is at the heart of the trusting and long-lasting relationships it has built during the past 125 years.

Testament to the quality of service provided is the fact that many of the firm’s clients have been with Sintons for decades, with the firm routinely being trusted to advise multiple generations of families and business owners.

Now, in its 125th year, and despite the ongoing challenges being presented by the COVID-19 pandemic, Sintons remains confident in its future as the firm continues to develop and grow.

The firm can trace its roots back to the formation of Sutton Cheshire & Thompson on February 8, 1896, which merged with John H. Sinton & Co in 1971 to become Sinton & Co, and later Sintons.

The expansion of the amalgamated firm has seen it move offices a number of times in order to house its growing number of employees, moving from Portland Terrace in Jesmond to bigger premises in Osborne Terrace which were soon outgrown, resulting in the relocation in 2004 to its current purpose-built home, The Cube, opposite St James’ Park in Newcastle. A second site was added with the opening of a consulting office in York two years ago to help the firm service its increasing demand for work from around Yorkshire.

The move in 2004 acted as a springboard in the development of Sintons, with many people not having realised how big the firm had grown and heralded a period of strong growth across the firm as a whole, with legal talent continually added to build its expertise and capability further still.

This has been backed by continued investment in its IT infrastructure, digital offering and people, to ensure Sintons is well positioned for the future.

“We are very proud of the reputation we have built over the past 125 years, which has seen us become known on a national scale as a law firm of the highest capability which is absolutely dedicated to its clients,” says Christopher Welch, managing partner of Sintons.

“We have never been afraid to be leaders and to take bold decisions, which have frequently put us at the very forefront of the legal sector. We were, for example, building our online presence and digital business development platforms way ahead of our competitors and long before it was something that was embraced widely within the legal sector.

“Going forward, we are in a strong position, having built on the heritage and legacy of Sintons over the past 125 years to create a law firm with a national reach, regarded in the highest terms for the quality of both our legal and personal client service.

“This is a very significant milestone for us as a business, and while we reach it during some of the most challenging economic conditions in the country’s history, we remain confident in the future of Sintons.”

Sixth Furlough Treasury Direction

HM Treasury has issued a new Treasury Direction covering the Coronavirus Job Retention Scheme (the “CJRS”).

The direction refers to the extension of the CJRS from 1 February to 30 April 2021. There are no changes to the amounts that employers can claim for under the CJRS for the months February to April 2021.

Employers will continue to be able to claim for 80% of an eligible employee’s salary, capped at £2,500 per month, in respect of hours not worked, and will continue to be required to pay the employer national insurance and employer auto-enrolment pension contributions on furloughed employees’ pay.

It confirms the position that employers will not be able to claim for employees who are on notice and this is confirmed for the period to 30 April 2021 and that HMRC will publish information on employers who claim under the CJRS. The first information in relation to claiming employers was published on 26 January 2021.

The deadlines to submit claims in respect of February to April 2021 are as follows:

  • February: 15 March 2021
  • March: 14 April 2021
  • April: 14 May 2021

The deadlines to amend claims in respect of February to April 2021 are as follows:

  • February: 29 March 2021
  • March: 28 April 2021
  • April: 28 May 2021

The direction also modifies the corresponding calendar month period used for calculating the March and April 2021 furlough pay for non-fixed rate employees whose relevant reference day is 19 March 2020. Instead of taking the corresponding month in 2020, when an employee could have been on furlough pay, employers should refer back to the employee’s pay in March and April 2019.

If you have any questions relating to this content or any other employment issue, please contact the team.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 17

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 17’ – with Angela Carver and Catherine Hope. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • Can an employer hire someone to do a basic role which could easily be carried out by a furloughed worker, or should it be offered to the furloughed worker?
  • Restrictive covenants
  • Can an employer require employees to be vaccinated against COVID-19?

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Leisure company acquisition completed by Sintons

A North East leisure group is under new ownership after being sold to a fellow family-owned operator in one of the biggest deals in the region’s sector during 2020.

Sir John Fitzgerald has been purchased by Ladhar Group, after it was put on the market earlier in the autumn.

The landmark deal was completed by Sintons, the longstanding advisors to the Ladhar Group, and ensures Sir John Fitzgerald’s North East heritage and ownership remain firmly in the city.

The group was formed in Newcastle in the 1850s when a young John Fitzgerald moved from Tipperary in Ireland to settle in Newcastle.

By 1900, he owned several bars in the city, but well as founding the pub chain, he was known for his philanthropy. Having served as Sherrif, Alderman and Newcastle’s Lord Mayor in 1914-15, he was later knighted for his services to the city.

Since the early 1970s the company has been run by his great grandson David Horgan.

The Ladhar Group, which works across the care, property and leisure sectors, was built by brothers Amarjit and Baldev Ladhar and is now run by their sons Barry and Michael, with its substantial leisure portfolio already including the likes of city centre go-to venues Pleased To Meet You, Redhouse and Lady Greys.

Through its acquisition, it adds popular venues across the region to its portfolio, including Crown Posada and Bacchus in Newcastle, 29 Bar and Kitchen in Tynemouth, The Manor House in Stockton, The Ridley Arms in Morpeth, Twin Farms in Kenton Bank Foot and The Pavilion in Backworth.

Barry Ladhar, director of Crafted Projects, which will incorporate the Fitzgerald pubs, said: “We are absolutely delighted to own one of the city’s most iconic companies and to be able to keep it in our home city.

“The Fitzgerald family has given so much to Newcastle and we are both thankful and proud to have been entrusted with taking on the pub estate which has built up such a superb and well-deserved reputation.

“We don’t need to tell anyone how difficult 2020 has been but we are very positive about the future. We are seeing tremendous investment in Newcastle and we want to continue to play a big part in that.

“The purchase of Sir John Fitzgerald fits in with our ambitions to ensure the hospitality sector and night-time economy of Newcastle will once again thrive when the pandemic passes.

“We recognise the importance of the generational family ties to the business and its development, which mirror our own experiences. We are delighted to be able to continue the family ethos that runs throughout the Sir John Fitzgerald group.

“Sir John Fitzgerald has not stood still over the last 125 years; it has retained historic character pubs whilst developing new, modern pubs and restaurants – as we have. The opportunity for synergy between our respective estates is an exciting one, and one we intend wholeheartedly to embrace.

“We believe our proven track record; our ability to combine the historic with the new; our emphasis, like SJF, on quality; our local, family base; places us, perhaps uniquely, in an ideal position to move the combined businesses forward for the future generations of patrons.”

Christopher Welch, managing partner and corporate lawyer at Sintons, and real estate partner Alok Loomba completed the deal on behalf of their client Ladhar Group, with support from colleagues across the firm.

Jane Meikle, head of banking, and corporate partner Adrian Dye also worked on the transaction, alongside specialists in Sintons’ employment team.

“This is a hugely significant deal for the North East’s leisure sector and one which unites two highly-esteemed, family-owned operators into one ambitious group, which is well placed to take advantage of the opportunities that lie ahead, post pandemic,” says Christopher.

“We have supported our client with their ongoing expansion for many years, and we are delighted to have completed this deal on their behalf, which is undoubtedly one of the biggest leisure transactions of 2020 for the region.”

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 16

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 16’ – with Keith Land and Fiona Campbell. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • Disciplinary procedures
  • Notice and furlough leave
  • Can employees on long term sick leave who are clinically extremely vulnerable be placed on furlough leave, or should they remain on sick leave?

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Coronavirus Job Retention Scheme – Update

The updated Government guidance covering the extension of the Coronavirus Job Retention Scheme (“CJRS”) was published on 10 November. This was followed by the publication of the 4th Treasury Direction to HMRC late last Friday evening (13 November), which provides the legal framework behind it.

This confirmed some important further changes to the CJRS going forward which employers should be aware of, and which we set out below:

  • Claims must not be made for any day where employees are serving statutory or contractual notice between 1 December 2020 and 31 January 2021.
  • If an employer makes a claim under the CJRS covering a period from 1 December 2020 onwards, they will be accepting that HMRC will publish information about CJRS claims online. The information published will include an employer’s name, any relevant reference number, and an amount which gives a ‘reasonable indication’ of the amount they have claimed. A publication may be withheld if this would cause ‘serious risk of violence or intimidation’.
  • Employers must have furlough agreements in place, and these must be made before the beginning of a period to which a claim relates. However, these can be subsequently varied during the claim period. Employers can use previous agreements, as long as these are updated before the period of furlough leave within the extension period starts. There was an initial period allowed for agreements to be put in place with retrospective effect, going back to 1 November 2020, but this period expired on 13 November 2020.

The full Treasury Direction can be found at here.

If you would like any assistance in preparing a furlough agreement, or have any questions in relation to this content or another employment law issue, please feel free to contact a member of the Employment Team.

Employment Law Annual Update 2020

Sintons’ Employment team, in partnership with Reed HR, have recorded the following complimentary online employment law seminar.

This seminar is our ‘Employment Law Annual Update 2020’.

Please click on the play button in the bottom left corner of the below video image to start viewing.

To follow the full size slides the team are using throughout the presentation, please click here prior to commencing watching.

We have also included a podcast version should you wish to listen to the seminar again at your leisure, the link is also below.

If you have any questions please use the ‘Talk to Sintons now’ Live Chat facility in the bottom right hand corner of your current screen and a member of the team will be happy to assist.

Dental Conference 2020

Sintons’ Healthcare Team, in conjunction with Perspective (North East), Parklane Plowden Chambers and UNW, invite you to watch their annual complimentary educational conference for dentists.

This conference covers various ‘hot’ topics, and helps you plan how best to manage opportunities and risks for your practice and personal finances and has become a staple in the calendar of dental professionals from the region and beyond.

Please click on the play button in the bottom left corner of the below ‘North East Dental Conference 2020’ window to start viewing.

We have also included a podcast version should you wish to listen to the conference again at your leisure, the link is also below.

If you have any questions please use the ‘Talk to Sintons now’ Live Chat facility in the bottom right hand corner of your current screen and a member of the team will be happy to assist.

Coronavirus Job Retention Scheme – Update

Yesterday the Chancellor, Rishi Sunak, announced that there will be a five month extension to the Coronavirus Job Retention Scheme (“CJRS”). This is to support individuals and businesses who continue to be impacted by the COVID-19 pandemic over the winter.

The CRJS rules will mostly remain the same with a few minor changes. Up until the 31 January 2021 employees will be able to receive 80% of their usual salary for hours not worked, up to a maximum of £2,500 per month (with the cap being proportionate to the hours not worked). The Government will then review the situation in January 2021 to decide whether the economic situation has improved enough to ask employers to increase their contribution.

Full guidance is expected to be published on 10 November 2020, but we set out some of the points which have been confirmed so far in the Government’s policy paper:

  • Employers do not need to have used the CJRS before to be able to claim under it, and it does not only apply to employees who have been previously furloughed.
  • Employers can claim whether their organisations are open or closed.
  • Employers can claim in respect of employees who were employed and on their payroll on 30 October 2020 (meaning an employer mist have made a PAYE Real Time Information (“RTI”) submission to HMRC between 20 March and 30 October 2020, notifying a payment of earnings for them.
  • Employees can continue to be furloughed on a full or part time basis.
  • Employer contributions will be the same as in August 2020, meaning that employers will only be asked to cover National Insurance and employer pension contributions.
  • If employees have previously been furloughed, employers will need to use the same calculations for calculating reference pay and usual hours as they have under the CJRS so far.
  • If employees are being placed on furlough leave for the first time (from 1 November 2020 onwards), employers must use a different pay reference period. In brief, for employees working fixed hours this will be 80% of the wages payable in the last pay period ending on or before 30 October 2020. For those with variable hours, this will be 80% of their average pay between the start date of their employment or 6 April 2020 (which is later) and the day before their CJRS extension period begins.
  • It is open to employers to place employees on furlough leave when they are unable to work because they are shielding in line with public health guidance, need to stay at home with someone who is shielding or have caring responsibilities resulting from the COVID-19 pandemic (including childcare).
  • Employees who were employed and on an employer’s payroll on 23 September 2020 and were made redundant or stopped working for their employer afterwards can be re-employed and claimed for. This is subject to the employer having made a PAYE RTI submission to HMRC from 20 March to 23 September 2020, notifying a payment of earnings for those employees.
  • Employees must continue not do any work in respect of any hours where they are recorded as being on furlough leave. They can take part in training, volunteer for another employer or organisation and work for another employer if their contract permits this.
  • As has been the case so far under the CJRS, changes to employee’s contracts must be made by agreement and furlough arrangements confirmed in writing. The Government has confirmed that furlough or flexible furlough agreements made retrospectively which have effect from 1 November 2020 (and subject to these complying with employment law) will be valid for the purposes of the CJRS. It is important to note that only retrospective agreements put in place up to and including 13 November 2020 may be relied upon for the purposes of a CJRS claim.

The launch of the Job Support Scheme, which was going to commence on 1 November 2020 alongside the three-tier restriction system, has been postponed, together with the Job Retention Bonus which was originally due to be paid in February 2021. A new retention incentive scheme is to be deployed at a later date.

The Government’s full policy paper can be found here.

If you would like any assistance in preparing a furlough agreement, or have any questions in relation to this content or another employment law issue, please feel free to contact a member of the Employment Team.

Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 15

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 15’ – with Keith Land, Catherine Hope and Ailsa Hobson. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • PILON payments
  • Sick pay? Symptoms, isolation and quarantine – what are the rules?
  • Job Support Scheme.

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

‘Standout’ employment team hailed by Chambers 2021

The “standout” employment team at Sintons, which has won recent praise for its support of businesses during the COVID-19 pandemic, has now secured further independent endorsement from Chambers and Partners UK Guide 2021 for its “capability, knowledge and experience”.

The team is hailed for its capability across a broad range of sectors, taking in education, healthcare, charity, construction, energy and leisure, and for its strength in advising on matters including executive terminations, mass redundancies and restructuring.

Chambers has now named it as one of the leading employment advisors in the region, building on praise from the recently-released Legal 500 2021, which similarly hailed Sintons for the clear and direct manner in which it advises clients on even the most complex of issues.

Sintons’ employment specialists have won widespread plaudits in recent months for its support of businesses during the pandemic, holding free webinars and Q&A sessions, in addition to creating a wealth of timely and relevant written content, to help give some clarity on matters like the Job Retention Scheme during the most uncertain of times.

Keith Land, head of employment, is again hailed as a leader in his field for his ability to advise on the full spectrum of employment law, with one client saying “his ability to analyse a situation, evaluate it and advise on it delivers additional value to our business”.

Ailsa Hobson is named as an Associate to Watch and is praised as being “very efficient” with capability in a wide range of matters.

Christopher Welch, managing partner of Sintons, said: “Our employment team is well-known and highly-respected for the highest standards of legal and client service it delivers, and has come to particular prominence over the past few months with its commitment to supporting the business community during the pandemic.

“To secure further independent confirmation of our expertise in this field from Chambers is excellent, particularly so soon after the findings from Legal 500 2021, which echoed the endorsements of our capability and client commitment.”

The Job Support Scheme – where are we at now…?

As we have known for a few months now, the Government Job Retention Scheme (the “CJRS”), which opened on 20 April and applied from 1 March, is coming to an end on 31 October. This is something which has subsidised the wages of over 9 million workers over the last 6 and a half months.

What comes next…

On 24 September, the Chancellor, Rishi Sunak, announced the introduction of the Job Support Scheme (“JSS”) which will apply from 1 November. The Government confirmed that the purpose of this is to assist those employers facing lower demand over the winter months due to the COVID-19 pandemic and who will no longer have access to the CJRS. Further Government guidance is to be published shortly but this is what we know so far.

The JSS will run for 6 months and under this employers will be required to pay their employees at least one third of their usual pay in relation to hours worked and a further third of their usual pay for the remaining unworked hours. In addition, employers will initially pay the Government contribution of a third of the usual hourly wage (capped at £697.92), an amount that can then be claimed back from the Government.

For example, if an employee’s normal monthly salary is £2,000 and they work 50% of their normal working hours, they would receive £1,000 from their employer for the hours worked, plus £333 from their employer and £333 from the government in respect of their unworked hours. The employer would claim back the £333 Government contribution from HMRC under the JSS.

For the first three months of the JSS employees must work at least 33% of their usual hours. Employees can move on and off the JSS and can work different patterns each month, but each short time working arrangement must cover a minimum of seven days.

The JSS is open to all employers throughout the UK with a UK bank account and UK PAYE scheme, regardless of whether or not their employees have previously been placed on furlough leave under the CJRS. Large businesses will need to be able to show that their turnover is lower now than before experiencing difficulties from COVID-19.

In terms of who employers can claim in respect of, employees must have been on the PAYE payroll on or before 23 September 2020 (i.e. Real Time Information submission notifying payment to that employee to HMRC must have been made on or before that date).

In addition to the JSS, Employers who bring employees back from furlough leave under the CJRS and continuously employ until January 2021 will be entitled to a £1000 Job Retention Bonus.

The latest…

On Friday 9 October, Rishi Sunak, announced that the JSS will be expanded to support businesses across the UK which are required to close their premises due to coronavirus restrictions, including those businesses which are required to provide delivery and collection services only (the “Additional Scheme”). This was in preparation for the new three-tier restriction system which the Prime Minister set out yesterday, which will see pubs, bars, gyms, betting shops and casinos in areas placed in the ‘very high’ category having to close for the foreseeable future.

The Additional Scheme will also commence on 1 November and will be available for 6 months, with a review to take place in January.

Businesses will only be eligible to claim under the Additional Scheme while they are subject to specific restrictions and where employees are off work for at least 7 days. Under this, the Government will pay two thirds of employees’ salaries (or 67%), up to a maximum of £2,100 a month. Employers will not be required to contribute towards wages and will only have to cover National Insurance and pension contributions.

In contrast to the CJRS, employers will not be able to make employees redundant or put them on notice of redundancy during a period in respect of which they are making a claim under the Additional Scheme.

Full guidance is to be published by the Government so please keep an eye out for this.

‘Excellent’ advice and client service from employment specialists praised

The employment team at Sintons has been hailed by Legal 500 2021 for its capability and “excellent practical advice”.

The team maintains its position as one of the leading employment specialists in the North of England, winning praise for its ability to advise businesses and organisations in a wide variety of sectors.

Its “timely provision of information when required, accurate and very informative” is also hailed by the independent publication.

Legal 500 highlights its work in healthcare, education, charities, construction and offshore and renewables, as well as its capability in a wide range of areas, including contentious litigation.

Keith Land, head of employment, is named as a leading individual in the North of England in recognition of his client work. Associate Ailsa Hobson is again recognised as a rising star.

Associates Fiona Campbell and Angela Carver are also recognised as key names in the department.

The latest Legal 500 rankings come after Sintons’ employment team won widespread praise for its support of the region’s business community during the COVID-19 pandemic, offering a range of free resources to help provide guidance and advice to help negotiate the fast-changing economic turbulence.

Christopher Welch, managing partner of Sintons, said: “Our employment team is regularly recognised as a leader in the North of England based on the outstanding legal and personal service it delivers to clients, and to have this independently endorsed again is excellent news.

“Our employment specialists are known for their significant capability and expertise, and they have rightly won widespread praise over the past few months for the clarity they have helped to bring to so many businesses during the most uncertain of times. Legal 500 brings further confirmation of the excellent work they are doing.”

Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 14

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 14’ – with Keith Land and Ailsa Hobson. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our sessions today covers the following topics:

  • The job support scheme
  • Agile working
  • Working from home – September 2020.

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Annual employment event held online for 2020

An annual employment event which has become established as a must-attend in the sector has been moved online for 2020, to enable it to go ahead despite the ongoing restrictions caused by COVID-19.

The Annual Employment Law Update is one of the most popular events in the Sintons calendar –  demand for places regularly exceeds availability – with employment and HR professionals from across the North East attending to hear about the latest developments in the sector and what they can expect in the months ahead.

This year’s event, held by Sintons’ employment team together with Reed HR, will be particularly significant, with the expert speakers analysing the very latest developments around the employment implications of COVID-19 on businesses, and assessing what lies ahead after the end of the Job Retention Scheme.

The update will be held online on Thursday, November 19, from 10am.

During the COVID-19 lockdown period, Sintons’ employment team has won widespread praise for its commitment to helping the region’s business community through a series of online Q&A sessions, which has helped them and their employees to better understand their position and obligations under the Job Retention Scheme.

Keith Land, head of employment at Sintons, said: “This past year has been one of the most challenging periods for employers in memory, and with the ongoing implications of COVID-19 and end of the Job Retention Scheme, the huge pressure on businesses shows no sign of lifting. As ever, we are absolutely committed to helping employers to negotiate these difficult times and to support them with our clear and direct advice on what they can be doing.

“Our Annual Employment Law Update is one way in which we can do this, and we would urge as many people as possible to attend to learn about the very latest developments and how that can affect their business and employees.

“We have held a series of events online during the past few months to great success, with people joining us in significant numbers from well outside the North East, so we are delighted to now be able to hold our Annual Employment Law Update online. Usually we have a huge demand for places and attendance numbers are restricted by the size of the venue, but this year we hope the fact these limits no longer apply will enable even more people to attend. We look forward to welcoming attendees new and old to our event.”

* The Annual Employment Law Update will be held on Thursday, November 19 from 10am. It will be held online and advance registration is necessary. To register, contact Peter Jennings on peter.jennings@sintons.co.uk or 0191 226 7907.

Employment Q&A sessions extended

Employment specialists at law firm Sintons will continue to offer their expert advice via their popular Q&A sessions, with the initiative being extended into the COVID-19 post-lockdown period.

Businesses have experienced huge challenges in the past unprecedented six months, with many being forced to take measures to protect their future, including turning to the Government’s Job Retention Scheme to place employees on furlough leave.

The rights and obligations of businesses in such uncharted territory have often been unclear, with many business owners and employees alike having much uncertainty around their rights and obligations.

In response to this, Sintons’ employment team launched a weekly Q&A session, in which its team of specialists – led by Keith Land, one of the region’s leading employment lawyers – answered the questions submitted by businesses and individuals from across the country.

Sintons, known for its clear and direct advice, saw huge demand for its online sessions, with the employment team being widely praised for bringing much-needed clarity during such an uncertain time.

Although the country continues to emerge from COVID-19 lockdown, the challenges for businesses are still as relevant, with major challenges including the end of the furlough scheme, the resumption of office-based working and, where it has become necessary for some businesses, redundancy situations.

In response, Sintons will now hold a monthly Employment Q&A session, to continue to answer the pressing questions and address the latest Government-enforced changes and what they mean for businesses.

Keith Land, head of employment at Sintons, said: “We launched our Q&A sessions to try and help shed a bit of light into what was a completely unprecedented and fast-changing situation, which left many businesses feeling completely unsure about how to proceed. The response we got was brilliant, with people from far and wind contacting us with questions and passing on their gratitude that a resource like this was available.

“As the challenges for business are far from over, we will continue to support employers and employees in every way we can, and are very pleased to extend our Q&As. By continually talking to employers, we know the issues that are pertinent to them, and we understand the questions they want and need to be answered. We are proud of our reputation for delivering advice on the most complex of situations in a straightforward and understandable way, and we will continue to shed light on the very latest developments in the Government’s ongoing COVID-19 response for businesses.”

* The next employment Q&A session will be held on Friday 25th of September. To register attendance, or to contribute a question, please contact David Pritchard, head of marketing, on david.pritchard@sintons.co.uk or 0191 226 7802.

Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 13

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 13’ – with Keith Land and Angela Carver These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

The team has also given much thought as to what work may look like following the relaxation of the current restrictions.

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 12

Today we recorded our ‘Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 12’ – with Ailsa Hobson and Angela Carver.

These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

The team has also given much thought as to what work may look like following the relaxation of the current restrictions.

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 11

Today we recorded our ‘Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 11’ – with Keith Land and Catherine Hope.

These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

The team has also given much thought as to what work may look like following the relaxation of the current restrictions.

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 10

Today we recorded our ‘Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 10’ – with Ailsa Hobson, Angela Carver and Catherine Hope.

These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

The team has also given much thought as to what work may look like following the relaxation of the current restrictions.

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Settlement Agreements

Associate Catherine Hope from the Employment department at Sintons recorded a podcast today concentrating on Settlement Agreements.

Click the link below to listen to the full podcast.

Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 9

Today we recorded our ‘Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 9’ – with Ailsa Hobson and Catherine Hope. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

The team has also given much thought as to what work may look like following the relaxation of the current restrictions.

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Settlement agreements – what are they and how can they help?

What’s in a name?

Settlement agreements in the employment context (formerly known as compromise agreements) are legally binding agreements which can settle most statutory employment law claims, including unfair dismissal. They are commonly used as a means of bringing an employment relationship to an end and settling any employment claims that an employee might have.

They will ordinarily involve some form of incentive for an employee, usually in the form of a financial sum, but can include certain other benefits, in return for the waiver of the right to bring a claim on an employee’s part.

Why would you use one?

Settlement agreements are often used to settle disputes on termination of employment. However, this is not always the reason and they are often used simply for an employer’s comfort, where an employee may not have asserted a particular statutory right and there is no dispute as such, but there is an agreed exit and an employer wishes to close off the risk of any future litigation. For example, in a redundancy situation, the handling of a consultation process can be complex and time consuming, particularly if there are large scale redundancies. It is therefore common for employers to offer enhanced packages to affected employees if they are able to do so, in return for those employees signing a settlement agreement. In addition, if an employee has accepted voluntary redundancy, with an enhanced package, an employer will ordinarily make signing a settlement agreement a condition of the voluntary offer. This will be particularly important if a full and fair consultation process does not take place as a result or is cut short for any reason. Although the redundancies may be legitimate and reasonable in all of the circumstances,  a settlement agreement can give piece of mind and ensure that an individual cannot still try and bring a claim, if they were, for example, to latterly change their mind.

Settlement agreements will often be an attractive option for employers and employees as they can provide resolution and allow everyone to move on. Employees may also prefer this in comparison to a lengthy consultation process which can be emotionally draining. Confidentiality provisions ordinarily included in settlement agreements can also avoid the wider workforce being affected.

What you need…

For a settlement agreement to be valid, the following conditions must be met:

  • the agreement must be in writing;
  • the agreement must relate to a “particular complaint” or “particular proceedings”;
  • the employee must have received legal advice from a relevant independent adviser on the terms and effect of the proposed agreement and its effect on the employee’s ability to pursue any rights before an employment tribunal;
  • the independent adviser must have a current contract of insurance, or professional indemnity insurance, covering the risk of a claim against them by the employee in respect of the advice;
  • the agreement must identify the adviser; and
  • the agreement must state that the conditions regulating settlement agreements under the relevant statutory provisions have been satisfied.

If an agreement fails to comply with any of these requirements it will be invalid and unenforceable.

Where to start…

Settlement agreements are often used by employers where they are in dispute with an employee and are looking to settle the matter quickly and avoid costly litigation. Provided there is a recognised ‘dispute’ between the parties, raising the possibility of settlement can be done on a “without prejudice” basis. This means that the existence and contents of the negotiation will ordinarily be protected from being disclosed at court or in the Employment Tribunal if negotiations break down. When negotiating a potential settlement sum, communication should therefore be stated to be “without prejudice”.

Sometimes in litigation, it might be appropriate to rely on an earlier offer of settlement in support of a costs application in the event that negotiations fail and an employee brings a claim which is either successfully defended or the remedy awarded is less than the amount that was offered. In these circumstances, offers should be marked “without prejudice save as to costs”. Offers should also make it clear that they are subject to terms of the settlement being agreed. As such, it is also important to mark any settlement correspondence “without prejudice and subject to contract”. This will ensure there is no binding agreement until all of the terms of the settlement agreement are agreed and signed.

It is important to note that the “without prejudice” protection only applies if the communication is a genuine attempt to settle an existing dispute, and in a lot of settlement agreement discussions this will not be the case because the dispute may not yet have arisen or been brought up by the employee. To address that gap, amendments were made to the Employment Rights Act 1996 (“ERA”) in 2013 to allow for “protected conversations” to take place in pre-termination settlement negotiations. The changes, which were introduced by new section 111A of the ERA 1996, mean that employers are now able to engage in off the record conversations with employees in relation to the termination of their employment without fear of this being disclosed in the Employment Tribunal.

However, conversations are only protected in relation to unfair dismissal claims. If there is the potential for a discrimination claim, the protection under section 111A cannot be relied upon. In a worst case scenario, an employee receiving an offer to terminate their employment in return for a settlement package, could, in such circumstances, use the fact that  the offer has been made as the foundation of, or part of, a discrimination and/or constructive unfair dismissal claim. Employers should therefore consider whether discussions will be protected before making an offer. That being said, it will still always be prudent to label settlement correspondence “without prejudice” and mark it as covered by s.111A ERA 1996.

The amount…

What will be acceptable to an employee will very much depend on the type of claim (if any) they could bring, the strength of the claim, and the employee’s role and contractual benefits. Consideration needs to be given to an employee’s minimum entitlement from a statutory and contractual perspective and then what can be offered as an enhanced element. There will need to be some form of incentive for an employee to waive their right to bring a claim. If an employee is not being compensated reasonably this will come to light when they receive independent legal advice and their advisor will likely advise them to negotiate a higher figure or simply not enter into the agreement.

Employers should also consider whether there are any non-financial benefits that could be offered and would be attractive to an employee. This could, for example, transferring ownership of a company phone or car, a reference, or allowing certain benefits to continue for a certain period of time post termination.

Tax implications

Employers will need to consider the structure and tax implications of any payment offered. Payments of up to £30,000 paid to the employee as compensation for the termination of employment (including redundancy payments) can be paid tax free. Payments that are due under the employment contract, such as salary, cash benefits and notice pay, will be subject to tax and National Insurance contributions. Previously the taxation of notice payments would depend on whether there was a contractual entitlement to make a payment in lieu of notice. However, now, any payment that reflects a period of unworked notice is taxable. If this is not taxed at source, then it will be due as ‘post-employment notice pay’ and a slice of any termination payment will be taxed accordingly.

Other matters covered…

As well as setting out agreed terms in relation to financial sums to be paid, settlement agreements ordinarily also set out agreed terms in relation to company property, confidentiality, confirmation of any on-going restrictive covenants and in some cases a reference so they can be useful from a commercial perspective.

The Employment team at Sintons is experienced in drafting, reviewing and advising on Settlement Agreements, as well as negotiating terms in relation to the same. If you have any questions, please contact Catherine Hope or another member of the team.