Category Archive: Employment

Sintons’ employment law experts host seminar on reasonable adjustments

A free seminar will give employers the opportunity to learn about reasonable adjustments in the workplace, from Sintons’ team of employment law experts.

Taking place on Thursday 2 May in Newcastle, the team will share case studies, as well as insights from employment tribunals and their own legal practice.

“We know that a lot of businesses and organisations have questions about reasonable adjustments and want to better understand this area of workplace law,” said Keith Land, partner at Sintons and head of the employment law team.

“That’s why we’re inviting employers from all sectors, whether you’re a client of Sintons or not, to come along, ask questions and hopefully leave with a much clear picture on the topic.

The event will start at 8am on Thursday 2 May at Vertu Motors Arena in Newcastle upon Tyne. Breakfast will be available on arrival and there will be an opportunity to ask questions and network.

If you’re an employer who would like to learn more about reasonable adjustments, contact Peter Jennings on peter.jennings@sintons.co.uk or 0191 226 7907 to book your place at the seminar.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – Episode 55

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 55’ – with Catherine Hope & Max Winthrop.

The team covered the following questions:

  • If an employer offers an overall enhanced paternity package, can an employee rely on specific, more favourable parts of the statutory paternity leave rules?
  • Can an employee make a request to work fully remotely?
  • Are employees entitled to additional leave if they are a carer?

Please click below to either listen as a podcast or watch as a video.

Six months with Sintons: first year trainees share their experiences

Corina Dias and Will Chapman are both first year trainee solicitors at Sintons, currently working in the employment and real estate teams. Six months into their training contract, they share what their experience has been like so far.

Tell me a bit about what you did before you started at Sintons and what the first six months of your training contract have been like.

Corina: Previously, I was an HR Manager for a local authority and a lot of my work was underpinned by legal concepts which I enjoyed learning about so, when COVID hit, I thought why not go ahead and try to switch careers? I did my conversion degree while working full time and last year I did my LPC in London on a fast-track basis. It was intense but a great experience and I don’t regret a thing.

I’m just coming to the end of my first training seat in the employment team. I’ve loved every minute of it and I feel like I’ve been able to bring some of my previous knowledge to the team. Employment is a seat I’d recommend to other trainees as it’s quite fast-paced and you get to learn a lot very quickly.

Will: I’d been a paralegal for two years so I knew what to expect from working in a law firm and had a good idea of what I’d be doing as a trainee. During my time in the real estate department I’ve worked on things like drafting leases and contracts and I also support on a lot of work for faith-based institutions, which is an area Sintons specialises in.

Being given responsibility and opportunities to be hands-on has been really good, and I’ve enjoyed learning how to tailor your advice for the different people you deal with; it’s varied and means you’re always learning.

Which other departments would you like to work in during your training contract?

Corina: I enjoyed all parts of my studies so I have an open mind about the areas of law I want to learn about. My next seat is in the neurotrauma team; it will be very different from employment law and I’m looking forward to experiencing it.

Will: My preference is commercial law so I’m interested in working in the employment law team, where Corina is now.

Why did you choose to apply to Sintons?

Corina: In my previous career, I used to come to the seminars which the employment team delivers and I liked that they were very straight talking and shared so much useful information.

I thought I’d apply just to see how the process works. I didn’t think I’d be successful and I was planning to apply again the following year – but I got a job!

Will: I moved to Leeds after university and I wanted to return to the North East. I applied to a few firms here and when I spent time at Sintons as part of the recruitment process, everyone here seemed a lot more approachable than in other places. It was also clear what the plans for the growth of the firm are, how we as trainees play a part in that and how we fit in once we’ve qualified.

What was the application process like?

Corina: The application process includes a three day assessment in the firm. You get to know a lot of people in that time, including the current trainees and apprentices – we had lunch together and they talked to us about their experience in the firm, and we’ll be doing that this year for the new applicants.

It wasn’t anything like what I’d expected. Everyone worked well together and there was a feeling of community and collaboration. And that feeling hasn’t changed now I work here, it’s a very supportive place to be.

Will: When you spend time in the office you get to try a bit of everything – there were some negotiation exercises, a group presentation and you complete work in different departments which you’re given feedback on.

What advice would you give to someone who’s considering applying for a training contract?

Corina: Research the firms you’re applying to because they can be very different in terms of their values, who they work with and what they do outside of their core work. Do they match with your own ethics and preferences?

I also think it’s a good idea to apply to a full service firm as that will give you the opportunity to try different things as you train. You might think you want to do corporate law but end up being suited to something like family law, so keep an open mind.

Will: Look on LinkedIn at the firm’s profile and the people who work there. Look at the recent work they’ve done and reference it in your application.

Is there a social aspect of working at Sintons as a trainee?

Will: There’s a trainee social budget and in our first week we all went out with the second years to an escape room and we had food and a few drinks to break the ice.

I feel like I am not just part of the department I am working in, but part of the wider Sintons team. Everyone has been so welcoming and there is a real sense of everyone being treated equally regardless of our background.

Corina: I really enjoy being part of the trainee cohort and I really treasure the relationships we have. Everyone has different experience and something to contribute. Everyone wants to do their best and has a career plan but it doesn’t feel competitive, it’s very team-orientated.

Can you sum up your experience so far in three words?

Corina: Interesting, supportive and superb.

Will: Challenging, approachable and inclusive.

The deadline to apply for Sintons’ graduate trainee programme is 31 March 2024. Find out more and apply here.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – Episode 54

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 54’ – with Max Winthrop, Angela Carver & Corina Dias.

The team covered the following questions:

  • What are the key things to know about bullying?
  • How do we handle an allegation of bullying?
  • Where a grievance investigation finds bullying by a manager and progresses to a disciplinary hearing, what happens if the disciplining manager disagrees with the grievance findings?

Please click below to either listen as a podcast or watch as a video.

Employment Law E-Bulletin – Issue 93

  • Corby v Advisory, Conciliation and Arbitration Service ET/1805305/2022 – Claimant’s opposition to critical race theory is protected philosophical belief under Equality Act 2010
  • De Bank Haycocks v ADP RPO UK Ltd [2023] EAT 129 – Employee’s dismissal for redundancy was unfair due to clear lack of meaningful consultation at the formative stage of the redundancy process

Corby v Advisory, Conciliation and Arbitration Service ET/1805305/2022Claimant’s opposition to critical race theory is protected philosophical belief under Equality Act 2010

Mr Corby is an individual conciliator for the Advisory, Conciliation and Arbitration Service (‘ACAS’). He describes himself as white, and his wife and children as black. He has spent significant amounts of his life with and around black people and formed relationships with them. In August 2021, Mr Corby shared his views on racial equality on a private workplace communication platform, namely that people should be valued on character rather than race. He also disagreed with what he described as a feminist view of social problems, for example that male suicides were not important. Some colleagues complained about the posts and ACAS asked Mr Corby to remove them. He accused ACAS of acting ‘like East Germany’ and brought a discrimination claim. In September 2023, the Employment Tribunal (“ET”) considered whether Mr Corby’s views were protected under the Equality Act 2010. The issue of discrimination is due to be heard in April this year.

The ET applied the test in Grainger Plc v Nicholson 2010 (‘Grainger’) to determine whether Mr Corby’s beliefs were protected under the Equality Act 2010, namely whether they were:

  1. genuinely held;
  2. more than just an opinion or viewpoint;
  3. concerned a weighty and substantial aspect of human life and behaviour;
  4. had cogency, seriousness, cohesion and importance; and
  5. worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others

The ET found that Mr Corby’s views of race equality were genuinely and deeply held. They: were based on a great deal of consideration of the teachings and writings of various individuals and lived experience; they related to important questions on race equality and justice which affect large proportions of the population; they were serious and important and influenced the way he led his life; they were logical and structured and capable of being understood; and they could not be described as incompatible with human dignity or conflicting with the fundamental rights of others even though they were not universally shared. His views on sex/feminism were not found to amount to philosophical beliefs. They were deemed to be opinion, relating to a narrow issue of male suicide, based on limited reference points, and he was not able to fully articulate them as an underlying belief system.

Points to note:

Although this is a first instance decision and therefore not binding on other ETs,  it is:

  • a useful example of the application of the test for philosophical beliefs worthy of protection under the Equality Act 2010; and
  • a reminder that controversial and unpopular views, expressed freely within the workplace, may be protected by law. In the key case of Maya Forstater v CDG Europe and Others UKEAT/0105/20/JOJ (reported in our June 2021 bulletin), the EAT held that a belief would only be likely to fail the fifth criterion in Grainger if they are “the kind of belief… which would be akin to Nazism or totalitarianism”.

Employers have a difficult job of balancing the promotion of  freedom of speech and managing the expression of opposing beliefs in the workplace. Although the issue of discrimination by ACAS is yet to be decided, it is important for employers to ensure that:

  • they have up to date policies setting out expectations and standards of behaviour in respect of dignity at work which are reviewed regularly;
  • those policies (and any updates and changes) are communicated effectively to everyone within the organisation;
  • balanced equality training (including regular refreshers) is provided on an ongoing basis to all employees and managers; and
  • any complaints and grievances are dealt with promptly and proportionately.

De Bank Haycocks v ADP RPO UK Ltd [2023] EAT 129 – employee’s dismissal for redundancy was unfair due to clear lack of meaningful consultation at the formative stage of the redundancy process

Mr De Bank Haycocks (the “Claimant’) worked for ADP RPO UK Ltd (‘ADP’), a UK subsidiary of a US company. He was one of 16 recruitment consultants in the UK (of a workforce of 50-60 people) employed specifically to service a single client, Goldman Sachs.

At the end of May 2020, ADP contemplated a reduction to its workforce due to a downturn in demand following Covid19. At the beginning of June 2020, the Claimant’s UK manager was given a standard selection matrix used by the US parent company which included 17 entirely subjective factors. The manager applied the scoring in good faith, without any conscious bias, and the Claimant scored the lowest. The scoring was done before any decision was made on the scale of the workforce reduction, which took place on 18 June 2020 when the loss was determined to be 2 out of 16 jobs. ADP met with the Claimant on 30 June 2020 informing him that redundancies were needed and giving him the opportunity to ask questions and suggest alternative approaches. A further meeting took place on 8 July 2022 and a final meeting on 14 July 2020, when the Claimant was dismissed. The Claimant appealed, complaining that his scoring was too low, that the dismissal was procedurally unfair as the criteria were subjective, and that he didn’t have enough information about the scoring to challenge it. An appeal meeting took place in August 2020, by which time the Claimant had been given his own scores but he was never given those of his colleagues.

The ET found that the Claimant was unable to make a case that he should have been ranked  higher and that ADP had carried out the appeal process conscientiously, investigating his concerns fully. However, the ET did not directly deal with the issues of consultation.

The EAT concluded that the failure to consult at a formative stage meant that the dismissal was unfair and that ‘whilst the appeal could correct any missing aspect of the individual consultation process (e.g. the provision of the Claimant’s own scores), it could not repair the gap of consultation in the formative stage’.

Reviewing the existing authorities on fair redundancy dismissals, the EAT concluded that, as a theme, employers deemed to be acting within a band of reasonable responses would follow what is considered good industrial relations practice. In a workforce where there are recognised trade unions or where the statutory redundancy consultation requirements apply, good industrial relations will normally dictate that a consultation with a view to minimise the impact of redundancies would ordinarily take place at a formative stage (that is before any decisions have been made on proceeding with redundancies). Therefore, in the spirit of good industrial relations, consultation should take place in some form with affected individuals irrespective of the size of a redundancy exercise or whether the workforce are represented. The EAT considered two significant changes in the nature of employment since the 1980s, namely the reduction in trade union membership outside of the public sector and more and more organisations operating internationally (meaning that what works in the US does not necessarily reflect good practices in the UK and consultation/discussion at the early stages of the redundancy process would have ironed out any issues of the selection matrix not being appropriate for use in the UK).

Points to note:

This decision highlights the need to give all affected employees the opportunity to influence  decisions made about redundancies before they are made. A decision to dismiss may still be reasonable in the absence of consultation, however it would be up to an ET to decide this.

The decision also provides a useful summary of existing authorities in respect of fair redundancy dismissals, that:

  • employers will normally warn and consult affected employees/representatives;
  • fair consultation occurs when proposals are at a formative stage, and where an employee is given adequate information and time to respond (along with conscientious consideration being given to responses);
  • the purpose of collective or individual consultation is to avoid dismissal or reduce the impact of redundancies;
  • a redundancy process must be viewed as a whole and an appeal may correct an earlier failing making the process reasonable – but note that in this case the appeal only corrected shortfalls in the individual consultation process, not the lack of consultation at a formative stage;
  • an ET will consider the whole process, including the reason for dismissal, in deciding whether it is reasonable to dismiss;
  • it is a question of fact and degree as to whether consultation is adequate and it is not automatically unfair that there is a lack of consultation in a particular respect;
  • any particular aspect of consultation, such as the provision of scoring, is not, of itself, essential to a fair process;
  • the use of a scoring system does not make a process automatically fair; and
  • the relevance or otherwise of individual scores will relate to the specific complaints raised in a case.

It may seem like there is a lot to do, even for small scale redundancies, however undertaking general consultation with those affected before decisions are made could reduce the time taken up by individual appeal processes. Although there is no set period for consultation where the number of redundancies are less than 20, there is a requirement to provide enough information and give enough time for employees affected to engage meaningfully. There are also likely to be fewer challenges, both internally and before a tribunal, if employees feel they have been given a reasonable opportunity to influence the decisions.

Contact Us:

If you have any questions regarding any of the issues covered in this bulletin, or require employment law advice in general, please contact our team of experts.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 53

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 53’ – with Catherine Hope & Samuel Scott

The team covered the following questions:

  • Do we have to meet with an employee accused of alleged misconduct before proceeding to a disciplinary hearing where dismissal is a potential outcome?
  • Should we include overtime pay in the calculation of holiday pay?
  • What are the risks of not issuing a contract of employment which is compliant with s.1 of Employment Rights Act 1996?

Please click below to either listen as a podcast or watch as a video.

Textbook on employment law authored by Sintons’ partner

Lawyers and paralegals studying for a professional qualification are learning about employment law using a textbook authored by one of Sintons’ specialist lawyers.

Employment Law and Practice by Max Winthrop is one of the recommended textbooks for courses delivered by CILEX, the professional association and governing body for over 21,000 Chartered Legal Executive Lawyers, other legal practitioners and paralegals.

The book covers topics such as employment status, discrimination, family friendly rights, termination and unfair dismissal, and also examines the future of employment law in England and Wales.

The CILEX description of the book explains that: “Employment Law and Practice is the recommended textbook for the CILEX Professional Stage Employment Law and Practice Module, but it will also provide invaluable guidance for law students and junior employment lawyers who are seeking to improve their knowledge and practical skills in this area.”

Max, who has also lectured in employment law at Durham and Northumbria Universities, commented, “CILEX were looking to update their existing texts and asked me to produce this guide to employment law.

“Sintons places great value on supporting the next generation of legal professionals and now this book will play a part in helping hundreds more CILEX students gain an in-depth understanding of this specialist area.”

CILEX has more than 6,000 current students and offers qualifications from foundation level, suitable for those who are new to studying law, through to its advanced and professional qualifications which equip law graduates and practising professionals with specialist knowledge in areas including employment law.

Copies of Employment Law and Practice are available from CILEX.

Government publishes draft legislation on proposed changes to paternity leave rights

The Government has now published the draft Paternity Leave (Amendment) Regulations 2024 (the “Regulations”). The Regulations are expected to come into force on 8 March 2024, subject to approval by each House of Parliament, and will apply in England, Wales and Scotland.

The Regulations will bring increased flexibility to paternity leave and pay rights where the expected week of childbirth (‘EWC’) or date of placement for adoption is on or after 6 April 2024.

When the Regulations come into force, they will introduce the following changes:

  • employees will be able to choose to take paternity leave as a single period of leave (of one week or two weeks) or as two non-consecutive blocks on one week each;
  • employees will be able to take their entitlement at any time during the first 52 weeks from the child’s birth or placement for adoption (a much more generous provision than the previous 56 days); and
  • employees will be required to give at least 28 days’ notice of their proposed dates of paternity leave (if they opt to take two non-consecutive periods of leave, the notice requirement applies to each period of leave separately). Employees will continue to be required to give notice of their entitlement to take parental leave at least 15 weeks before the EWC or date of adoption placement.

Employers should review and update their existing policies and procedures and communicate these to all employees. They should also ensure that managers are aware of the changes to how paternity leave can be taken and what the notice requirements are, so that they  respond appropriately to any requests from employees.

As a reminder, a number of other legislative changes will be coming into force in April 2024, which will also require employers to review their current arrangements regarding flexible working, carers’ entitlement to leave and redundancy protection during and after family leave. Please see Issue 92 of our Employment Law e-bulletin for details.

If you have any questions in relation to flexible working, family friendly rights, or any employment matter, please contact a member of our Employment Team.

Employment Law E-Bulletin – Issue 92

  • The Flexible Working (Amendment) Regulations 2023
  • The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024
  • Carer’s Leave Regulations 2024

December has seen a flurry of activity in terms of new secondary legislation which will come into force from 6 April 2024. This will bring changes to flexible working rights, carer’s rights and enhanced redundancy protection during and after family leave.

The Flexible Working (Amendment) Regulations 2023

This new legislation brings a significant change to the right to apply for flexible working from 6 April 2024, removing the requirement to wait for 26 weeks before an employee can make a request. Instead, employees will be able to apply from day one of employment, which is estimated to bring some 2.2 million more employees within the scope of the entitlement.

This follows the introduction of the Employment Relations (Flexible Working) Act 2023, which received Royal Assent on 20 July 2023. This is yet to come into force, but when it does:

  • Employees will be allowed to make two statutory requests in any 12-month period (rather than the current one request);
  • The employee will no longer be required to explain what effect, if any, the change applied for would have on the employer and how that effect might be dealt with.
  • The decision period (within which an employer administers the statutory request) will reduce from three months to two months; and
  • Employers will have to consult with the employee before rejecting their flexible working request.

The changes will be supported by a statutory Code of Practice drafted by ACAS. Guidance is expected to be published on gov.uk in January.. Employers will continue to be able to reject requests on a number of permitted business grounds.

The new requirements will affect employers in all sectors, who will need to review their processes and policies (including recruitment practices) to allow employees to request flexible working from day one of employment.

If you need assistance in reviewing your flexible working policies, please contact the employment team here.

The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024

These Regulations will extend the existing protection against redundancy (which is the entitlement to be offered a suitable alternative vacancy, where one exists) for employees taking maternity, adoption or shared parental leave to 18 months following the expected week of childbirth or the date of placement for adoption.

For pregnant employees, the enhanced protection will apply from when the employee notifies their employer of their pregnancy (if this is after 6 April 2024) and up to 18 months as above (for any maternity leave ending on or after 6 April 2024). So it is possible that an employee may benefit from part of the enhanced protection only.

In adoption cases, the enhanced protection will apply to any period of adoption leave ending on or after 6 April 2024. In terms of shared parental leave cases, enhanced protection is only available for shared parental leave commencing on or after 6 April 2024 and only if the employee has taken a minimum of 6 weeks of leave.

Employers should review their family friendly and/or redundancy/change management policies and procedures and ensure that managers are aware of the enhanced protection in a redundancy situation so as to avoid any potentially discriminatory claims.

If you require further advice on how to incorporate the changes into your current practices, please contact the employment team here.

Carer’s Leave Regulations 2024

These Regulations bring into force the day one right of eligible employees with caring responsibilities to take one week’s unpaid leave to provide or arrange care for a dependent with long-term care needs within any 12 month rolling period.

Entitlement is based on a number of substantive and procedural requirements, including:

  • a statutory definition of a dependent with long-term care needs; and
  • notice to be given before the earliest day of leave, not necessarily in writing, of twice the length of the leave requested, subject to a minimum of three days’ notice.

Employees can take the leave as half or full days and up to and including a single block of a whole week of leave. Employers can postpone a period of carer’s leave if this would unduly disrupt the operation of the employer’s business. To do so, the employer must give the employee notice as soon as possible and consult with the employee before confirming a new date on which they can take the leave, which must be within one month of the original dates requested.

As with other types of family leave, employees’ terms and conditions of employment apart from pay are protected during carer’s leave and they are entitled to return to the job they held before they went on leave. Employees are also protected from being subject to a detriment and/or dismissal attributable to the fact that they took or sought to take carer’s leave.

Where an employer offers contractual carer’s leave in excess of the statutory entitlement, the statutory leave cannot be exercised in addition to the contractual leave.

Employers should review their carer’s leave policies and procedures and communicate these to all employees, as well as ensure that managers are aware of the new right and respond appropriately to any requests from their employees.

Our employment team can guide you through the new requirements, get in touch with the team here if you would like advice and support.

Are employers obliged to award a Christmas bonus to their employees?

Christmas is a time of year where employers thank their employees for their commitment throughout the year. This is commonly expressed through a Christmas party and may also be shown through the award of a Christmas bonus. However, the decision on whether to award a Christmas bonus is often a complicated exercise, including a consideration of many different factors. This can often lead to an employer asking, am I obliged to award a Christmas bonus to my employees?

There is no statutory entitlement to a Christmas bonus and so the answer will depend on whether there is any contractual entitlement.

Employers should first check any written employment contracts and policies to see if these contain anything about Christmas bonuses.

When considering any entitlement to bonuses, it is important to distinguish between contractual and non-contractual bonuses.

A bonus which is contractual will often be expressed as either an entitlement:

  • to participate in a bonus scheme; or
  • to a certain level of bonus, should specified targets be hit.

If an employee has a contractual bonus and meets the required criteria, a bonus must normally be paid. Failure to do so could lead to a claim for unlawful deductions from wages or breach of contract.

An employer could also face a claim of unfair dismissal if it chooses to dismiss an employee because they asserted that a contractual bonus had not been paid. This type of unfair dismissal claim would fall within the “assertion of a statutory right” regime set out in section 104 Employment Rights Act 1996 – the statutory right being not to suffer unlawful deductions of wages. Importantly, a dismissal falling within section 104 would be automatically unfair, the employee would therefore not require two years’ continuous service to bring the claim.

Alternatively, a bonus which is non-contractual will typically set out that an employer maintains full discretion as to whether a bonus is awarded and the amount of such bonus. As a result, (in an ideal world) a non-contractual bonus scheme provides employers with full flexibility to decide whether or not a bonus should be awarded. However, ideal worlds are far and few between, and clauses purporting to be non-contractual can often be deemed to be contractual.

The may occur because of poor drafting, as the less clear a non-contractual bonus is, the more likely its meaning will be scrutinised. To overcome this issue, it is important that detailed consideration is given to the implementation of a bonus scheme and that legal advice is obtained before clauses are inserted into employment contracts.

A further issue can arise where a discretionary bonus is paid on a regular basis, as this may result in it becoming contractual by way of custom and practice. An example of this was shown in Noble Enterprises v Lieberum, where the Employment Tribunal concluded that Mr Lieberum had a reasonable expectation that he would receive a bonus, given that the bonus had been consecutively paid for the previous five years. The best way for employers to overcome this issue is again to ensure contractual clauses and policies are clear on the discretion an employer maintains. As a failure to provide clear written terms, coupled with a historical practice of paying a set bonus at regular intervals, is likely to be fatal for any employer seeking to maintain that their bonus scheme was always awarded on a non-contractual basis.

Today marks the end of our 12 Days of Employment Law series. If you would like to discuss any of the topics covered in greater detail, please contact the Employment Team at Sintons. Merry Christmas!

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 52

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 52’ – with Max Winthrop & Ailsa Hobson.

The team covered the following questions:

  • We are about to confirm a number of redundancies having finished a consultation process, and now find that there are likely going to have to be more. What collective consultation duties will we have in respect of any more redundancies?
  • Can an employee take on paid work with another employer whilst on statutory maternity leave, without there being any impact on their maternity leave and/or pay?
  • What action can we take if an employee discloses an alcohol addiction during a disciplinary investigation into allegations of alcohol consumption at work?

Please click below to either listen as a podcast or watch as a video.

 

On the 11th day of Christmas, my employer brought to me – ‘Notice of Redundancy.’

Despite it being day 11 in our series, this is the first day we have sung the 12 days of Christmas.

The topic for today is whether you can make an employee redundant before Christmas. The short answer is yes. It is irrelevant whether it is Christmas Eve, your birthday or the third Tuesday of the month. Perhaps a dire financial forecast requires a swift process to avoid substantial losses, or the employer is just a modern day Ebenezer – the premise for the redundancy and the process followed are always fundamental.

Now a redundancy process, at any time of year will be difficult, but this will be even more so as the Christmas period approaches. If a consultation process starts in the lead up to Christmas, it may make staff feel uneasy worrying if their role will be selected for redundancy or if work friendships will be severed; this could impact on productivity and output. It may also lead employees to question the type of employer who dismisses employees before one of the most costly times of year.

Timing is therefore key, on one hand wrapping up a process before Christmas leaves those safe employees breathing a sigh of relief, but, beware it can also lead to a period of contemplation over Christmas. The employee may consider if the employer is one they want to return to and, for an ex-employee, anger and resentment can boil resulting in the submission of a claim. For these reasons, if a process can wait until the New Year, this would be sensible, but individual circumstances and the needs of the business will drive the process.

It is also important that when making less than 20 employees redundant in a 90 day period that individual consultation takes place. Wherever possible, be as open and honest as to the reasons for the proposed redundancies. Consultation at this level has no set time frame, it is however sensible to permit at least 3 days between meetings to absorb any mitigation and comments afforded. We would also suggest a minimum of 2 meetings.

For those employers looking to make more than 20 employees redundant in a 90 day period, the rules pertaining to collective consultation must be followed. Consultation will last 30 or 45 days and is far more prescriptive.

How a process is handled is as important as the reason for termination. Employees respect an employer who is open and truthful.

If you require any support before or after the festive season, do not hesitate to contact the Employment Team at Sintons.

Come back tomorrow for the final day of our Christmas series which will discuss whether or not an employer is obliged to award a Christmas bonus.

Secret Santa

On the 10th day of Christmas my employer said to me…. “who’s up for Secret Santa?” …half the workplace cheer and the other half groan!!! So how do we set boundaries while maintaining the fun?

Secret Santa is a Christmas tradition, the idea of which can be traced back to a Scandinavian custom of knocking on someone’s door, throwing a present inside and then running away. Now it is something that you can apparently do online… who knew!

The purpose of Secret Santa is to spread Christmas cheer, boost morale and encourage team building and friendships. In all elements of social interaction in the workplace however, you need  to remain mindful that not everyone’s interpretation of “fun” “banter” and “appropriate” is the same. What one member of the team may see as light hearted or amusing, another member could perceive as offensive or even discriminatory.

The Equality Act 2010 defines harassment as unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either violating a persons dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. It is a wide definition and places the onus on the perception of the offended person rather than the intention of the person behind the conduct. It is therefore possible that a Secret Santa gift could fall within the definition of harassment, especially if the gift could be perceived as offensive and especially if it is of a sexual nature – which is more common than you would expect!!

To make sure that the giving of gifts is mutually enjoyable to all, set some ground rules, linking back to your existing internal policies. This could include:

  • a reminder that gifts must not be in any way offensive, offering an open discussion and/or guidance if the employee is unsure;
  • a reminder that not everyone may wish to be involved and those that do not participate should not be criticised;
  • details of any spending limits; and
  • where you have specific concerns about more risky gift ideas, a reminder that HR reserves the right to examine gifts before they are given.

It can be difficult to strike a balance between encouraging a fun holiday tradition and avoiding a potential complaint or worse, an Employment Tribunal claim, but provided you are clear and upfront about your expectations and limitations, fun can still be had by all.

Come back tomorrow for Day 11 of our series which will discuss notice of redundancy over the Christmas period.

The True Intention of a Christmas Gift?

Christmas is a time for giving, particularly between family and friends. However, this tradition often extends to the workplace, where gifts are exchanged between businesses and their clients as a thank you for services provided throughout the year. When this occurs it is important that businesses bear in mind the legal position when it comes to the Bribery Act 2010.

  • The Bribery Act makes it an offence to offer, promise or give a bribe, and request, agree to receive or accept a bribe.
  • The Bribery Act also sets out a strict liability offence for commercial organisations where they fail to prevent bribery by any associated person.
  • It can serve as a defence for businesses if they can show that they have “adequate procedures” in place to prevent bribery being committed by its workers.

Transparency International, an organisation committed to tackling global corruption, sets out a helpful plain language definition of bribery. “The offering, promising, giving, accepting or soliciting of an advantage as an inducement for an action which is illegal, unethical or a breach of trust. Inducements can take the form of gifts, loans, fees, rewards or other advantages.

The key part of this definition is that to be a bribe, the intention of the giver must be to induce a particular action. It is therefore less relevant what the gift, or its value is. That said, a gift of higher value is more likely to be scrutinised.

When gifts are exchanged at Christmas, it would be prudent for businesses to consult their anti-corruption and bribery policies. These policies should set out the procedure which must be followed. This could include noting the gift on a bribery register, providing its value and stating the reason for the gift. It is also not unusual for businesses to introduce a blanket ban on accepting gifts above a certain value, especially in regulated sectors. Steps such as these will often help a business when it seeks to rely on the adequate procedures defence.

In summary, it is unlikely that a Christmas gift genuinely given for the purposes of saying thank you will constitute a bribe for the purposes of the Bribery Act. A prudent employer should however have suitable policies and procedures in place to ensure the intention of a gift is not misconstrued.

If you have any questions arising from the above topic, please contact the Employment Team at Sintons for further information.

Come back tomorrow for Day 10 of our series which will review the risks associated with the office Secret Santa.

Bad weather delays and travel disruption: the employment law implications

The fact that snow is not unusual in Britain seems to have escaped the attention of both traffic planners and the media: every year there is a note of surprise when relatively small falls of snow cause major disruption to travel plans. Newcastle upon Tyne after all lies at 55 degrees North: that puts the city on the same degree of latitude as Hudson’s Bay. Churchill, a town in Canada 2 degrees further north has a major polar bear problem in the winter months.

Polar bears aside, what are the employment law implications of employees being unable to work due to bad weather? Since the Covid pandemic led to the widespread take up of working from home, this issue might not be quite so acute as it once was. However, there are still many workers where getting into work is an essential part of their day. What is the position of workers who must report to the office or factory when hit by bad weather?

Historically, some industries have anticipated seasonal work restrictions and have lay-off provisions in the contract of employment. Briefly, with a contractual right to lay-off, the employer may give notice of the lay-off due to bad weather or other reasons: the employee is then entitled to claim state benefits over the period of the lay-off. If the lay-off lasts more than 4 weeks (or 6 weeks in any period of 13 weeks) the employee can give notice and claim a redundancy payment. Lay-off schemes are much less common than they were in the past, and a note of caution should be sounded: the statutory framework has rightly been described as “labyrinthine”.

But what about the situation where an employee decides the weather conditions are such that travel to work is too dangerous? Here it is important to remember that employees – from day one of their employment – have a right not to be subject to a detriment or to be dismissed for taking or proposing to take “appropriate steps” to protect themself or others from “serious and imminent” danger. Serious and imminent danger could include the risks of commuting. In Edwards v Secretary of State for Justice, the claimants refused to be driven to work at Dartmoor Prison as the road was closed because of snow – notwithstanding that the prison had provided 4×4 transport vehicles to assist. At first instance, the employment judge found that the claimants did not have a reasonable belief that the circumstances were serious or dangerous and therefore they were voluntarily refraining from going to work. However, on appeal the EAT took a different view: the employment judge had failed to consider whether each employee had a reasonable belief in serious and imminent danger: the fact that no accidents had (yet) occurred did not stop such a belief being reasonable.

So when it comes to winter weather make sure that any contractual policies and procedures fully cover the fact that it can get cold and snow – and what that means for work flows and commuting in. Make sure too that you are aware that extra protection is available to those employees who take – or propose to take – steps to protect themselves from danger, including the possibility of avoiding a commute rendered dangerous by severe weather.

Time off to attend Christmas performances

This time of year, music and drama departments in schools around the country are at their busiest, putting on performances to celebrate the festive season. So it should not come as a surprise that some of your employees will requests time off to enjoy their children’s school plays or concerts. How many requests you receive will depend on the make up of your workforce; many schools will make provision for working parents with multiple performances on different days and evening events to give parents and other relatives flexibility.

When it comes to time off for Christmas performances, requests will probably be for a few hours perhaps up to half a day. This may be manageable for employers, unless of course all requests are for the same morning or afternoon and this impacts on business delivery. Having said that, Christmas school events generally come with some degree of advance notice and may be planned for to avoid impact on the business.

There is no obligation for employers to grant paid time off for school events, as these would not be covered under the right to reasonable time off for dependants. The latter only provides for emergencies which involve arranging care for dependants who are ill or where the care provision has broken down. School plays, although involving dependants, are unlikely to be considered emergencies.

The CIPD reported in 2019 that 10% of employers gave paid leave to parents to attend a school event, like a nativity play in 2018. In general terms, there are several options to deal with the time off:

  • Unpaid leave, which means that the employee will lose the pay for the hours they are not in work;
  • Discretionary paid leave if this is affordable (which can be capped for example to 2-3 hours or a half-day if the employer is more generous);
  • Taking some of their annual leave entitlement, which for practical purposes may need to be expressed in hours; or
  • Allowing the employee to make up the hours at another time to be agreed (this may be more practicable for those working from home or on agile work patterns).

Whichever option or options the employer decides to offer, it is important that these are applied consistently and fairly. Being a seasonal occurrence, it is possible to plan ahead and, as a minimum let employees know what they need to do to request leave (including giving as much notice as possible) and what options they have in terms of any pay for the time off.  Some employers may even have a policy for such eventualities, which may extend to similar events throughout the year. One thing to bear in mind is to try and offer some Christmas flexibility to other employees who are not parents or grandparents and to alert managers to keep an eye on and sensitively manage any sign of conflict arising from the Christmas arrangements.

A decisions to not grant the time off at all, however strong the business reasons might be, is only to be taken in exceptional circumstances where there is a significant risk to business health. Such decisions will likely cause unhappiness and will probably impact on engagement, productivity and staff morale, at least in the short term.

If you need any assistance with your leave policies, please contact the Employment Team.

As we continue the second half of our series, tomorrow’s offering will turn to the weather and other unforeseen reasons preventing employees from attending work.

The challenges of managing leave at Christmas

Christmas is a time for parties but also a time to spend with loved ones. So it is no surprise that managing holiday requests at Christmas can end up being a real challenge. You may want to implement a whole organisation closure over the festive period, you may receive more requests of leave than you can approve for the same period, or you may have employees refusing to work on a bank holiday when contractually required to do so.

So how can you ensure that you have enough staff to keep your organisation running whilst maintaining good working relationships within your teams?

Employers can dictate when an employee takes holiday provided they give double the amount of notice to the period of holiday. So if you are planning a period of office closure at Christmas, make sure that you tell your employees in plenty of time.

Equally, employers have discretion over refusing holiday requests (by giving notice equivalent to the period of leave requested) and do not, in principle, have to give reasons for refusal (although the duty of mutual trust and confidence means that you should only refuse requests in good faith and with reasonable grounds). If your organisation’s needs do not enable you to agree to all requests, you will need to come up with an objective and fair basis for deciding which to refuse. As a starting point, you may consider a ‘first received first agreed’ basis, but it is important to consider whether this approach is likely to have a disproportionate negative impact on particular groups of staff who may be eligible for protection under the Equality Act 2010 (for example, is the reason an employee couldn’t make their request early because they have had sickness absence which may be disability related?)

When it comes to bank (or public) holidays, employers are not legally obliged to allow employees time off, unless this is a contractual entitlement or they are bank workers (in which case they cannot be asked to work on such days under the Banking and Financial Dealings Act 1971, hence the name ‘bank holiday’). It is important to check contractual provisions before having any discussion with employees. If there is no contractual entitlement to time off specifically on bank holidays, you can deal with any request for leave in the usual way as above.

One additional consideration when it comes to time off on Christmas bank holidays is that a decision to deny time off to Christian employees could amount to indirect religious discrimination if it puts them at a particular disadvantage in comparison to employees of other faiths or non-religious employees. Indirect discrimination may be justified if it is a proportionate means of achieving a legitimate aim, so it is important to consider carefully what your reasons are for denying the leave and whether there are less discriminatory ways in which you can achieve those.

Finally, what if an employee is denied a request for leave but takes it anyway, or calls in sick? This could be deemed unauthorised absence or abuse of the sickness policy and amount to a disciplinary offence. You should deal with this in line with your disciplinary and/or sickness absence policy and ensure that you establish all the relevant facts and follow a fair procedure before deciding on any appropriate disciplinary action.

Next week, we bring you Day 7 of our series, looking at time off to attend school plays or concerts and other festive events.

Absence, sickness and lateness following the Christmas party – What can you do as an employer?

On Day 5 of our Christmas Employment Series, we continue to focus on the potential Employment issues surrounding the annual Christmas party.

If the day after the Christmas party is a normal working day there is always the potential for the classic ‘sickie’ to be pulled for those who may have over-indulged…If staff don’t turn up for work and, following investigation, there is no satisfactory explanation for their absence, this can be treated as unauthorised absence in the usual way and dealt with under employers’ disciplinary procedures. However, as always, an investigation will still be required to ensure that staff who are genuinely ill are not penalised.

What about if staff attend for work late without good explanation, can employers make deductions from their wages? If this is something an employer wants to do they will need to have the right to do so in their employment contracts. If they don’t have this contractual right, they would need to obtain employees’ agreement to such deductions being made prior to the party taking place.

Employers can always remind employees that they are expected to attend for work as usual following a Christmas party, and that failure to turn up or lateness, where there is reason to believe this is linked to excess consumption of alcohol, may result in disciplinary action.

To try and minimise issues like this arising, employers could ensure that there is always a good variety of food and soft drinks available in order to help limit excessive drinking, and one way to avoid any issue, where normal working hours are Monday to Friday, is simply to arrange a party to take place on a Friday.

In Day 6 of our series, out tomorrow, we will be looking at all things annual leave over the Christmas period.

Harassment, Bullying and Discrimination at the Christmas Party: Minimising Risks

Once upon a time there was a charity that each year hosted a black tie event to raise money for other charities and good causes such as the British Olympic Association and Disability Rights International. It was or cultivated an air of exclusivity: black tie events for men only, hosted by celebrities and offering some quite unusual prizes at the after dinner raffle – lunch with the then Foreign Secretary, Boris Johnson or a course of plastic surgery to “spice up your wife.” The only women invited were there to serve the guests, given not only a (minimalist) working outfit, but a 5 page non-disclosure agreement, allegedly signing away rights before they were breached…

The President Club, for that was the charity concerned, is, not surprising, now history. The scandal that broke after the seedy goings on at the Club were revealed by an undercover journalist from the FT, Maddison Marriage, led to its swift closure.

So after having safely navigated religious susceptibilities, the next traps to avoid for a safe Christmas party are those concerning unacceptable employee behaviour. Remember that although the Christmas Party may be taking place outside of normal working hours and away from the workplace, an employer will still be vicariously liable for (most) actions of their employees at such functions, including harassment and other forms of discrimination. The office Christmas Party is a paradigm of those occasions which the law would view as an extension of employment. There is, however, a reasonable steps defence to claims of discrimination, including harassment. Here a tribunal will look at whether an employer did take reasonable steps, and will then go in to consider what else could have been done. In Casperz v MoD the existence of a dignity at work policy coupled with evidence that the procedures in the policy were followed, defeated a sexual harassment claim, but in Allay v Gehlen the defence failed: training had been offered in the past, but it was too “stale” to defeat a sexual harassment claim.

The President’s Club scandal drew attention to one other gap in the law: the absence of a remedy for harassment of employees by third parties. When the Equality Act 2010 was first on the statute book it included, in section 40(2), provisions against harassment of employees by third parties. When Theresa May was Home Secretary and Minister for Women and Equalities for some unaccountable reason she scrapped these provisions in 2013.

The catchily named Worker Protection (Amendment of the Equality Act 2010) Bill, will be in force effective from October 2024: when it is introduced there will be a duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment. This is not quite the same as saying employers are liable for the harassment of their employees by third parties, but a breach of this duty will entitle the tribunal to increase compensation awards by 25%. Readers will note that all the usual terminology, such as “in the course of employment” is preserved in the new wording. The new provisions are weaker than the old section 40(2) and would not have combatted the disgraceful conduct you can read about in cases such as Burton v DeVere Hotels. Nevertheless, the lengthy implementation period means that as well as enjoying dry January, the New Year will be the ideal opportunity to update policies and procedures on harassment, bullying and discrimination.

Come back tomorrow for Day 5 of our Christmas Employment Series, where we look at absence, sickness and lateness following the Christmas party.

Changes to skilled worker visa rules

The Government has announced that it will introduce measures to reduce net migration. The Home Secretary, James Cleverly, confirmed last night that a plan will be introduced to cut net migration and abuse of the immigration system.

In brief the plan is set to introduce the following changes from next spring:

  • The minimum salary required for migrants to come to the UK via the skilled worker visa route will increase from £26,200 to £38,700 (although migrants coming through the health and care visa route will be exempt from this increase).
  • The minimum income required for British citizens and those settled in the UK who want family members to join them will also be increased to £38,700.
  • The 20% going rate salary discount for shortage occupations will end. The Shortage Occupation List will be replaced by a new Immigration Salary List which will retain a general threshold discount.
  • The Migration Advisory Committee (the Committee) will review the new Immigration Salary List against the increased salary thresholds with a view to reducing the number of occupations on the list.
  • The annual immigration health surcharge will increase from £624 to £1,035.

The Committee will also be asked to review the Graduate visa route to ensure it works in the best interests of the UK and to ensure steps are being taken to prevent abuse.

These are significant changes, which are being introduced to cut migration levels. The Government has stated that together the changes would mean that around 300,000 people who came to the UK last year would now not be able to.

If you have any questions in relation to this, please contact Catherine Hope at catherine.hope@sintons.co.uk or on 0191 226 3801.

The Importance of Avoiding Work-Related Conversations at the Christmas Party

On Day 3 of our Christmas Employment Series, we continue to focus on the potential Employment issues surrounding the annual Christmas party.

At parties there can  be a tendency for employees to end up saying things they would normally be too scared to discuss. The  confidence to do so can  arise because of the influence of alcohol, because they are physically away from the workplace, or a bit of both.

This can lead to difficult interactions for supervisors when employees want to discuss things like promotions, pay rises or performance issues. Given the difficulty of these interactions and possibly in an attempt to maintain the festive spirit, supervisors can end up inadvertently making unworkable promises to employees.

An example of this situation is shown in the case of Judge -v- Crown Leisure Limited, which progressed to the Court of Appeal. Mr Judge claimed that at the Christmas party, a director promised him a pay rise within two years, and  later attempted to rely on this promise to secure a pay increase. Crown Leisure rejected this request, which led to Mr Judge resigning and claiming constructive unfair dismissal.

Crown Leisure were able to successfully defend the claim on the basis that the director’s words were too vague and uncertain to constitute a binding contractual agreement. Whilst this is a favourable result for employers, the need to defend a claim in the Court of Appeal is not a situation an employer wants to find itself  in.

In advance of any work event, it will be best practice for employers to warn supervisors that these types of conversations must be avoided. If an employee does bring up topics such as promotions, pay rises or performance, they should be reminded that the appropriate time for these conversations is instead within working hours.

Tomorrow, in Day 4 of our series, we discuss how to minimise the risk of harassment, bullying and discrimination complaints at the Christmas Party.

Issues of religion and belief and the Christmas party – a problem…?

Readers will know that under the Equality Act 2010 religion and belief are protected characteristics, and it follows that employees who suffer less favourable treatment because of such characteristics can complain of discrimination. So does holding a Christmas party amount less favourable treatment of the non-Christian?

The first point to note, obviously, is that there is usually very little other than the prefix “Christmas“ that connects the usual office party with the Christian religion. Certainly attendance at an office Christmas party couldn’t be seen as an act of specifically Christian worship (unless it was a very strange party) and as such merely holding such a party is unlikely to form the basis of a claim for discrimination because of religion and belief.

Ironically it was because of religious belief that celebrating Christmas was once banned in Britain, but it was because of specifically puritan Christian ideas that the ban was imposed: from the 1640s through to the Restoration in 1660 Christmas was outlawed, and even today there are Christian denominations who proscribe Christmas. Viewing a Christmas party as something that favours Christian over other religions (and other non-religious beliefs such as atheism or secularism) is unlikely to form the basis of a successful discrimination claim.

Employers need, however, to be sensitive to the views of multifaith (and no faith) workplaces. That might require consideration of ensuring at any social event that there are appropriate menu options available such as alcohol free drinks, and meeting the dietary requirements of different religions and belief systems. Don’t forget that we’ve seen cases where ethical veganism has been treated as a protected belief.

Finally, it should not be forgotten that workplace social events are – or should be – voluntary options for employees’ enjoyment. Employees can always opt out for religious or other reasons and provided they do not suffer detrimental treatment for so doing,  their employer is unlikely to face a successful claim for discrimination because of religion and belief.

Come back tomorrow for Day 3 of our series which will look at the unintended consequences of work-related conversations during the Christmas Party.

Day 1 – It’s Christmas Party time and everyone is invited!

Where best to start our series than the office Christmas party! This has traditionally been a good way to celebrate the festive season with colleagues, and enables employers to thank staff for their contribution. Fun should therefore be the order of the day, but how can you make sure that nothing gets in the way of the festive cheer?

  • Invite all employees, including those who may be away from work, for example, on sick or family leave. Communication about the party should be sent to all as if they are at work. Excluding someone on this basis may amount to less favourable treatment if their absence is related to a characteristic protected under the Equality Act 2010.
  • Respect every individual’s choice and ensure staff don’t feel pressure to attend. Some may not be keen on parties or have other plans, others may not wish or be able to attend on religious, health or childcare grounds. If individuals do not want to attend, they should not be disadvantaged as a result.
  • Choose the date and location of the party carefully. Some venues such as pubs may deter employees who do not drink alcohol. Ensure the timing of the party does not exclude any employees who may have childcare or caring commitments (and not able to attend an evening event), or those whose faith may not allow them to attend on particular days of the week. Ensure the location is accessible to any disabled employees.
  • Even if you hold the party off site, remember this will still be an extension of the workplace and you may be held vicariously liable for the actions of your employees. . Be mindful that any post-Christmas party drinks may be deemed to be within the scope of employment (particularly if you have organised and paid for these). It may be prudent to make it clear to staff that any after party drinks are not an organised work event.
  • Give staff a gentle reminder of the standards of conduct expected of them and what might be considered inappropriate. Make it clear that any inappropriate conduct will be dealt with promptly and may result in disciplinary action. Remind staff of your policies on discrimination, bullying and harassment, drug and alcohol use and social media. Alcohol can fuel sexual advances that could constitute harassment. Likewise, there is often gossip following the party and before the night is over, social media pages may be full of content that could cause a headache. Employees should be reminded that they need to think of their own personal and professional reputation, as well as that of their employer, especially if there is anything linking them to their employer on their personal social media pages.
  • Consider how employees can get home safely after the party. You may arrange transport to and from a specific meeting point and/or accommodation, subject to budget. It may be prudent to communicate a strict ‘no drinking and driving’ policy and state the possible consequences of not complying with this.

Whilst taking all of the above into account, remember that the purpose of the Christmas party is to have fun and you can make this happen following the hints above.

Look out for Day 2 of our series, which will be out on Monday 4 December 2023 and will cover the religion and belief aspects of having a Christmas party.

Employment Law E-Bulletin – Issue 91

  • Chief Constable of the Police Service of Northern Ireland and another v Agnew and others (Northern Ireland) [2023] UKSC 33 – historical underpayments of holiday pay are not automatically broken by making an appropriate payment or by a gap of more than three months between underpayments
  • The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 – Changes to holiday rules

Chief Constable of the Police Service of Northern Ireland and another v Agnew and others (Northern Ireland) [2023] UKSC 33 – historical underpayments of holiday pay are not automatically broken by making an appropriate payment or by a gap of more than three months between underpayments

In October, the Supreme Court in Northern Ireland ruled that historical underpayments of holiday pay are not automatically broken by the making of an appropriate payment or a gap of more than three months between underpayments.

Thousands of police officers and hundreds of civilian workers brought claims under Northern Ireland provisions equivalent to the Employment Rights Act 1996 (unlawful deductions from wages) and Working Time Regulations 1998 (calculation of holiday pay) on the basis that the employers had calculated their statutory holiday pay using basic pay only as opposed to normal pay (to include overtime).

The employers admitted to the incorrect calculation but sought to limit the claims, arguing that the claimants could not rely on a series of payments if any two of those were broken by more than three months. In support of their argument, the employers submitted that annual leave should be deemed to have been taken in a particular order i.e. that derived from EU law (4 weeks) first, followed by additional leave (1.6 weeks), thereby interrupting a series of underpayments.

The Supreme Court ruled that a series of underpayments is determined by whether the payments are linked and this is a question of fact to be determined based on ‘similarities and differences; their frequency, size and impact; how they came to be made and applied; what links them together; and all other relevant circumstances.” It determined that the underpayments were linked because they all arose from the same incorrect calculation.

The Supreme Court rejected the argument that different types of statutory leave can be deemed to have been taken in a particular order (unless there is a contractual provision stating this) and also considered the correct calculation of holiday pay which includes an element of overtime, ruling that the calculation of the overtime element should be based on the number of working days within the holiday reference period (and not the number of calendar days).

Points to note:

Although this is a Northern Ireland decision, it is binding on Employment Tribunals in England and Wales, who will not be bound by the limitations of the Bear Scotland case in respect of determining a series of underpayments for claims of unlawful deduction from wages under the Employment Rights Act 1996.

This means employees may be able to claim for underpayments going back further than originally thought if they are able to prove that several underpayments (whether or not broken by a gap of more than three months) are factually linked.

The good news for employers in England and Wales is that the impact of this is mitigated by the Deduction from Wages (Limitation) Regulations 2014, introduced by the Government following Bear Scotland, which places a two-year backstop on any claims brought on or after 1 July 2015.

Employers are advised to check their holiday pay calculations, particularly where they operate multiple pay elements including overtime, to ensure that they avoid claims such as this, as well as their contractual holiday pay clauses.

The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 – Changes to holiday rules

In its response to its consultation on reforms to the Working Time Regulations 1998 (“WTR”), the Government has published draft regulations which are due to come into force on 1 January 2024. These are the most substantive amendments to the WTR since publication. The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 provide for the following:

Irregular-hours and part-year workers – the introduction of a statutory definition of two new types of workers, either or both of which will likely cover most types of casual, variable hours and term-time workers. It also introduces new detailed provisions relating to entitlement to annual leave and calculation of holiday pay for these types of workers:

  • In a reversal of the post-Brazel calculation of holiday entitlement for part-year workers, annual leave entitlement will be calculated using an accrual rate of 12.07% of hours worked in each pay period, rounded up or down to the nearest hour and up to a maximum accrual of 28 days of annual leave in any leave year.
  • Where a worker takes a period of sick or statutory leave (e.g. family related leave), they will continue to accrue annual leave during the period of absence. However to determine annual leave accrued during the absence, the accrual rate of 12.07% is applied to an average of weekly working hours based on 52 weeks ending the day before the worker started the sick or statutory absence.
  • Rolled-up holiday pay will become permissible again, having previously been ruled unlawful by the European Court of Justice in 2006. It will be calculated using the 12.07% accrual rate on hours worked in each pay period, must be paid at the same time as the pay for the work done and must be shown separately on pay slips.

Carry over of statutory annual leave – the changes codify in domestic legislation the effect of retained European case law. The entitlement to annual leave of 4 weeks deriving from the EU Working Time Directive (“EU leave”) and the entitlement to 1.6 weeks additional leave pertaining to the UK via the WTR will continue to be treated differently as the Government decided against combining the two. Thus, for any leave year starting on or after 1 April 2024:

  • If any of the full 5.6 weeks’ leave cannot be taken in the year it is accrued due to a period of maternity or other statutory leave, it may be carried over into the following leave year and must be taken before the end of that year.
  • If any EU leave cannot be taken in the year it is accrued due to a period of sickness absence, it may be carried over into the following leave year and taken within 18 months from the end of the year when the leave was accrued.
  • Workers will also be able to carry over any untaken portion of EU leave into the following year if an employer (1) fails to recognise their statutory right to holiday and holiday pay or (2) fails to give them the opportunity to take their leave entitlement as accrued in the leave year or (3) fails to tell them that they would lose their holiday entitlement if they did not take it in full in the leave year it is accrued.
  • Similar provisions apply to the full leave entitlement of irregular hours and part-year workers, calculated as described above.
  • The new legislation revokes the Working Time (Coronavirus)(Amendment) Regulations 2020 which relaxed the original carry over rules as a result of the pandemic.

‘Normal pay’ for the purpose of calculating holiday pay – some clarity is provided in the legislation as to elements of pay which must be included in calculating normal pay for the purpose of the EU leave only (basic pay only remains in respect of the 1.6 weeks additional leave). This will now include the following:

  • Payments intrinsically linked to the performance of contractual tasks (including commission payments).
  • Payments relating to professional or personal status relating to length of service, seniority or professional qualifications.
  • Other payments, such as overtime payments, which have been regularly paid to a worker in the 52 weeks preceding the calculation date.

Record Keeping Requirements – the requirement for employers to keep records documenting compliance with the WTR remains. However, the administrative burden of doing so is reduced by allowing discretion as to whether and how each worker’s daily working hours are recorded, so long as an employer is able to show its compliance without such records.

Points to note:

This will provide some good news for employers, particularly in sectors where casual and/or term-time workers play a key role, for example education, care and leisure. The clarity on the calculation of holiday entitlement and the ability to lawfully operate rolled up pay will simplify the administration of holiday pay in the long run.

The calculation of holiday pay as stated in the new legislation will go some way to assist employers in calculating pay correctly and thus avoiding any unnecessary claims for underpayment of holiday pay. There remains room for interpretation of the definition of payments specified and so it will be important for employers take advice if in doubt as to whether, for example, certain payments are ‘intrinsically linked’ to the performance of the contract or how and when overtime payments should be deemed as ‘regularly paid’.

In terms of the carry over provisions, the full changes are linked to leave years starting on or after 1 April 2024. Any carry over of leave accrued in line with the old drafting will be covered by transitional provisions, which indicate that such leave must be taken before 31 March 2024. Employers may face initial difficulties if their holiday year runs from a date other than 1 April.

Employers may need to review their existing contracts to ensure that they remain compliant with and reflect these changes, particularly for workers who will be covered by the irregular hours and part-year workers provisions.

If you would like to discuss any of these changes or would like specific advice relating to your business or contracts, please contact a member of the Employment Team.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 51

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 51’ – with Max Winthrop, Angela Carver & Corina Dias.

The team covered the following questions:

  • An employee who is undergoing performance management has said that they believe they have dyslexia and that this is the reason for their poor performance. Are we obliged to fund a diagnostic assessment as a reasonable adjustment?
  • Where there is going to be a TUPE transfer, how should we treat employees who are on fixed term contracts which are due to expire the day before the transfer?
  • An employee has raised a complaint about how they have been treated by a colleague, but they are reluctant to make a formal complaint. What are our duties in this situation?

Please click below to either listen as a podcast or watch as a video.

A New Duty to Prevent Sexual Harassment in the Workplace

Every employer (from large multi-national employers to smaller owner managed businesses) should have systems in place to prevent sexual harassment in the workplace. However, we have seen in the press that some of largest, most sophisticated employers have been the subject of serious harassment allegations. You need look no further than McDonalds.

The experience of our employment team is that employers implement systems and controls and believe that these will keep them safe. This is correct but only to a limited degree. Employers should not only be ensuring that they have systems in place but they also need to continually satisfy themselves that those systems are robust, being used and that they are sufficient to root out and deal with conduct which is unacceptable. This has become more important still in light of new positive duty to prevent harassment brought about by The Worker Protection (Amendment of Equality Act 2010) Act 2023 (Act) which will come into force in October 2024.

The Act extends the obligations on employers to prevent sexual harassment in the workplace by:

  • placing a mandatory duty on employers to take reasonable steps to prevent the sexual harassment of their employees; and
  • allowing an Employment Tribunal to order a compensation uplift of up to 25%, where sexual harassment has occurred, and an employer has failed in this duty.

Employers can be found vicariously liable for sexual harassment committed by an employee. An employer may be able to defend this claim if it can show that it took all reasonable steps to prevent the discrimination.

The Act extends this responsibility further by compelling employers to take pro-active steps to prevent sexual harassment occurring in the first place. A failure to do so will lead to an to increase in any award which a successful employee obtains at the Employment Tribunal.

The Equality and Human Rights Commission (EHRC) will, in due course, update technical guidance on this subject. However, that will be subject to a full consultation, and it is expected that a statutory code of practice will be developed from this in due course.

It is important that employers now review their current processes and identify where there are risks of sexual harassment occurring in their organisation.

The employment team at Sintons are able to assist you with any review of your policies and procedures in this respect and advise on the steps businesses should take and that they will continue to need to take once the EHRC’s guidance is re-issued.

If you have any questions in relation to this article, or employment law generally, please contact a member of the team.

Government publishes draft legislation to amend the Equality Act 2010

The Government has published draft regulations which are set to amend the Equality Act 2010 (EqA). The Equality Act 2010 (Amendment) Regulations 2023, which are set to come into force on 1 January 2024, work to retain various key rights and principles of equality and discrimination law when retained EU law ceases to have effect at the end of this year.

The main changes introduced by the draft legislation are as follows:

  • The extension of the right to claim indirect discrimination to enable a person who does not hold the relevant protected characteristic, but suffers the same disadvantage at the hands of an employer’s provision, criterion or practice as those who do have the characteristic, to pursue a claim.
  • When it comes to determining whether an individual is disabled for the purposes of the EqA 2010, and considering their ability to carry out ‘day-to-day activities’, their ability to participate fully and effectively in working life on an equal basis with other workers shall be relevant.
  • Confirmation of a ‘single source’ test when it comes to comparators for the purposes of equal pay. This means that comparators can potentially work for a different business so long as the body responsible for setting the terms is the same and is in a position to ensure equal treatment.
  • Direct discrimination protection shall cover discriminatory statements made about not wanting to recruit people with certain protected characteristics even where there is no identifiable affected person.
  • Confirmation that when it comes to discrimination at work, discrimination on the grounds of breastfeeding falls under the protected characteristic of sex.

If you would like to discuss any of these changes please feel free to contact a member of the Employment Team.

Reduction in time periods for the disclosure of criminal convictions

On 28 October 2023, reforms under the Police, Crime, Sentencing and Courts Act 2022 came into force which amended the Rehabilitation of Offenders Act 1974. The reforms significantly reduce the time after which certain criminal convictions become “spent” and therefore no longer need to be declared to prospective employers, education institutes, insurance providers and housing authorities.

By way of reminder:

  • An unspent conviction will appear on an individual’s criminal record and will show up on any DBS check (Basic, Standard and Enhanced). Unspent convictions must also be declared if an individual is asked about them.
  • A spent conviction will not appear on an individual’s criminal record and will only show up on Standard or Enhanced DBS checks (unless the conviction is subject to the filtering rules). Spent convictions must only be declared if the individual is applying for an excepted role. There are around 70 roles which are excepted, including teacher, accountant and police officer.
  • It is unlawful for an employer to refuse an individual a role if they have a spent conviction, unless it makes the individual unsuitable for the role or the role is one which is excepted.
  • If the position is excepted, an employer may refuse to employ an individual. An employer must exercise their judgment when deciding whether to employ that individual. When making that decision, employers should carry out a risk assessment considering whether the conviction is relevant to the position, the seriousness of the offence and the length of time since the offence was committed.

The new rehabilitation periods in force following the reforms are:

SentenceAdultsUnder 18s
(Adult) Community Order/Youth Rehabilitation OrderThe last day on which the order has effectThe last day on which the order has effect
Custody of 1 year or less1 year6 months
Custody of more than 1 year and up to 4 years4 years2 years
Custody of more than 4 years (excluding serious sexual, violent, or terrorist offences, that continue to never be spent)7 years3.5 years

The previous rehabilitation periods were:

SentenceAdultsUnder 18s
(Adult) Community Order/Youth Rehabilitation Order1 year beginning with the last day on which the order has effect6 months beginning with the last day on which the order has effect
Custody of 6 months or less2 years18 months
Custody of more than 6 months and up to 30 months4 years2 years
Custody of more than 30 months and up to 4 years7 years3.5 years
Custody of more than 4 yearsConviction is never spentConviction is never spent

The Government estimates that these changes will benefit nearly 125,000 people sentenced in 2022 alone. It is also anticipated that the changes will help reduce the £18 billion which the Government spends each year to combat those who reoffend. This belief is backed by Government research suggesting former offenders in steady employment are nine percent less likely to commit further crimes.

The changes will likely have two effects on businesses.

Firstly, as convictions become spent sooner, an employer not recruiting for an excepted role will more often be placed in a situation where it would be unlawful for them to refuse employment on the basis of a spent conviction.

Secondly, there may be an increased requirement for employers to exercise their discretion when a DBS check for an excepted role shows spent convictions (although there is specific legislation for certain sectors). Should an employer exercise that discretion and decide to dismiss an employee, they could face a claim for unfair dismissal. That being said, job applicants for an excepted role will not have the requisite two years’ qualifying service, and will not therefore be able to bring such a claim. As there is no stand alone claim for failing to employ someone with a conviction, the job applicant would have limited options. They may however have grounds to complain to the Information Commissioner’s Office for an employer’s improper processing of their personal data.

If you would like to discuss how these changes may effect your business’ recruitment and HR decisions you can contact the Employment Team at Sintons.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 50

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 50’ – with Catherine Hope & Samuel Scott.

The team covered the following questions:

  • Should an employee who is off sick over a bank holiday receive a day off in lieu?
  • Is there a risk of discrimination when using AI in the workplace from an HR perspective?
  • What should an employer consider when it comes to offering suitable alternative employment in a redundancy situation?

Please click below to either listen as a podcast or watch as a video.

An Employment Update

Following the grey clouds of 2020-2021, 2022 seemingly got off to a flying start. We saw the re-opening of entertainment venues, and dancing shoes were removed from the back of the wardrobe. Events such as the World Cup, European Cup, British Grand Prix and the Commonwealth Games drew people together; we slowly started to remember the joys of seeing a face in real life rather than on a screen.

However, as 2022 progressed, the war in Ukraine took hold, supply chain issues magnified  and increased energy costs hit the leisure and hospitality industry hard; some businesses have passed the increases on to customers, some could not keep their doors open. Alongside spiralling costs, most businesses are working with a reduced workforce as a result of the pandemic and freedom of movement ceasing, and the Office of National Statistics predicts a drop in the GDP across 2023-2024.

Whilst the Spring budget has not afforded a VAT holiday or a reduction in business rates, the Government has promised additional energy support for eligible UK Businesses, in England, Scotland and Wales. In addition, it had pledged £63m to support punlivily0owned swimming pools and leisure centres as part of a one-year scheme to relive pressure caused by high fuel bills.

It is widely reported that inbound tourism has picked up thanks to the weaker pound, and new hotels have opened up nationwide. There are clearly growth opportunities if the right staff can be put place as consumer confidence starts to grow in the industry.

Most in the leisure industry, starts to grow in the industry, and particularly those in hospitality, are well aware of staffing shortages and , whilst there is no overnight fix, there is hope that the Government’s migration plans will help ease the labour supply pressures. As it stands visa applications for hospitality workers formed just 3% of the overall applications In 2022. In August 2022, the Migration Advisory Committee (MAC) was commissioned to review the Shortage Occupation List (SOL) in the construction and hospitality sectors. Interim findings we published on 15th March 2023 ahead of a final review later this year. Whilst no hospitality roles have been placed on the SOL, there is time and the final outcome will be published later this year. We are hopeful that as a result of the findings, the legal migration system will become quicker and more responsive to the needs of businesses and economy. Finally, the Government has pledged to extend childcare support with the intention that more working parents may return to the workplace. The industry may well find applications are on the up as working parents re-enter the workplace. Businesses should therefore be mindful of applications for flexible working which will, in the coming months become a ‘day one right’ rather than a right reserved for employees with more than 26 weeks’ service.

Flexible working requests can take many forms. They can, for example, be for a reduction in hours, specific set hours, compressed hours, home working or job sharing, and can only be refused on one of eight prescribed business grounds, which includes the burden of additional costs, the inability to re-organise work and the detrimental effect on ability to meet customer demand among others.

Thought and attention should be given to any flexible working request. They are often, but not always, intrinsically linked to caring responsibilities. If this is the case, and a flexible working request is declined without due consideration, business could find themselves on the receiving end of aa discrimination claim; something to avoid.

On a final note, keep and eye on the SOL, keep an Eye on the SOL, keep an open mind with hires and here’s to a prosperous 2023.

Sintons once again wins praise from Legal 500 2024

Sintons has again confirmed its position as one of the leading law firms in the North of England with the release of Legal 500 2024, which highlights the expertise and client service excellence delivered by departments and key individuals across the business.

Newcastle-based Sintons has won praise across the firm for the high levels of legal advice and personal service it delivers, and it is highlighted in four key practice areas as being leaders in its field in the North of England, and being recommended in 15 others.

A total of 48 lawyers are recommended for their standout practice in their respective fields, with fifteen of its lawyers hailed as leading individuals, which comprises experts in their field from across the North. Head of licensing Sarah Smith maintains her place in the Legal 500 Hall of Fame, in recognition of being a leading individual consistently for more than a decade.

A further four are named as next generation partners, and four hailed as rising stars.

While Sintons has for many years continually been named by Legal 500 as one of the key law firms in the North, its rankings for 2024 show the firm’s ongoing growth and progress, with gains made in many key practice areas.

Newly released for 2024, Legal 500 is based on extensive research into law firms throughout the UK, with its independent findings based on examples of work, client and peer testimonials and interviews.

In Legal 500 2024, Sintons is named as a top tier firm in:

Its leading individuals have been named as:

Next generation partners have been hailed as:

Rising stars are:

Christopher Welch, managing partner of Sintons, says: “This is a phenomenal and very well deserved assessment of our performance as a firm. We are ranked as leaders in our field in several key practice areas, with Legal 500 rightly recognising the huge capability and expertise we have here, and the progress we continue to make.

“Sintons is all about our people, and to see so many recognised for the outstanding efforts they make on behalf of our clients is fantastic news. We have excellence running throughout the business, in all areas of our work, and our team are all absolutely committed to delivering the best possible service and outcomes to our clients.”

Business Protection

Most businesses have important confidential information which is invaluable to them. Protecting this information is essential for making sure it maintains its value and isn’t used by anyone else, either for their own benefit or that of a competitor.

It is common for many employees to have access to confidential information as part of their role and for some it can actually be required in order for them to perform it. It also stands to reason that the more senior an employee is, the greater the amount of confidential information they will have access to, and, that it may also be more valuable as a result.

Employees are likely to be a business’ most important asset, contributing significantly to its success. As such, there can be competition to recruit the right individuals, and employees will often end up leaving to join key competitors, whether they are poached or take the step themselves. Employees can also make the decision that it is time to move on and apply their trade for their own benefit, by setting up on their own.

Businesses can’t prevent these things from happening and the worry to many, is that employees may take and use confidential information or go on to work in direct competition.

During the employment relationship there is an implied duty that employees will conduct themselves with fidelity and good faith. Among other things, this involves a contractual obligation to respect the confidentiality of their employer’s commercial and business information. This duty is implied into all contracts of employment and employment relationships, no matter how senior an employee.

A businesses’ confidential information is usually defined within its policies or employment contracts, but broadly speaking it will cover information that relates to the business which is not otherwise available to the public, and therefore not considered to be within the public domain. Information which is readily available to the public cannot be considered to be confidential and therefore cannot be protected. As a practical consideration, it is always important to think about what information needs to be protected and to make sure that it maintains its confidentiality. For instance, a list of clients published on a website would not be confidential and therefore could not be protected.

What confidential information looks like to one business can be very different to another. However, some (non-exhaustive) examples of the most common types of confidential information are:

  • Client lists and business contacts
  • Pricing information
  • Finances
  • Business Plans/Proposals
  • Intellectual Property and Trade Secrets
  • Technical data and Know-How

Most of the time confidential information will be recorded in some form of documentary evidence and be in either a hard copy or digital format. However, it can also relate to other information which is not recorded in that way.

Confidential information can be protected for as long as the information retains its confidential status. This could, in theory, be forever but there are certain barriers to this which make it difficult for this theory to be proved. The reality is that in most instances the confidentiality of a certain document will fade over time. For example, is a 10 year old business plan still confidential to a business and does it still need protecting? It is unlikely, but whether something retains it confidentiality status is fact specific.

Protecting confidential information

Usually a business will have a policy on confidential information, build it into its employment contracts, or both. Even though certain confidentiality obligations are implied into the contract of employment, it would be unwise for an employer to rely solely on implied terms. Having express terms enables an employer to not only define what confidential information is, but also clearly set out what an employee (or other individual) is not allowed to do. This will generally be that an employee is prohibited from using or disclosing confidential information, both during and after the termination of their employment. However, this will of course be subject to some mandatory exceptions such as an employee’s ability to use confidential information for protected disclosures or as required by law.

It is also important to note that only trade secrets continue to be protected by the implied duty of confidentiality after termination of employment. Having express confidentiality provisions will enable a business to ensure its confidential information continues to be protected post termination.

What tends to go hand in hand with confidentiality obligations, are other post-termination restrictive covenants which, when used in conjunction with these, seek to maximise the protection for a business.

The most common restrictive covenants are non-competition (often referred to as ‘non-compete’) clauses and non-solicitation clauses. These are designed to prevent an employee leaving and either working for a competitor or setting up on their own, in competition, where confidential information may be used for a competitive advantage, and preventing them from pro-actively going after clients or customers.

Whereas confidential information can potentially be protected indefinitely, the same cannot be said of restrictive covenants contained within employment contracts. To be enforceable, they must be reasonable and go no further than is necessary to protect a legitimate business interest. That interest could for instance be, confidential information.

What is necessary to protect a legitimate business interest from one employee to the next may differ, and the more senior a role is, the more protection you might be afforded.

A relatively junior employee will still have access to confidential information, as will a senior manager. However, as their respective exposure and access to confidential information will inevitably differ, the type and length of protection you might be able to enforce could differ significantly. For the most senior employees, it may be possible to have an enforceable clause preventing them from competing with you for 12 months, whereas for someone more junior, it would likely be unreasonable and therefore unenforceable.

It is therefore important to fully consider the wording of both confidentiality terms and any restrictive covenants that you wish to use within your employment contracts. Restrictive covenants can be effective in protecting your business but they need to be enforceable. The best way to do that, is to seek legal advice, so the necessary wording is used and they are tailored to a particular individual and your business. It will also be a good idea to regularly review the wording within your employment contracts to make sure restrictive covenants remain current and suited to the needs of the business. The Employment Team at Sintons regularly advise clients on relevant wording for covenants, ensuring these remains current, enforceable and tailored for a business’ needs.

What to do when things go wrong…

You have just found out that an employee, who recently handed in their notice, is going to join one of your competitors in a very similar role to the one they are carrying out for you. This is concerning as they have access to confidential information and you have a suspicion that they will seek to use this within their new role. After carrying out an internal investigation, it comes to light that the employee has emailed details of your clients and pricing to their personal email account. So, what should you do?

The best advice that can be given to an employer is to act fast in these situations. Time is of the essence, and you have to be seen to be acting promptly if you want to protect your business.

Taking swift legal action could, in this scenario, entitle you to obtain an interim injunction against the employee to prevent them from using and disclosing the confidential information and for its delivery up/return. Depending on whether other restrictive covenants are applicable, you may also be able to prevent them from working for your competition for a set period of time as provided for within their employment contact, providing any such restriction  is enforceable.

The reality is that once discoveries of this nature have been made, it is best to seek legal advice to assist you in how best to protect your business. Sintons’ Dispute Resolution Team works closely with the Employment Team in matters such as these. Obtaining an interim injunction often requires a lot of work in a short space of time and as well as being time consuming, they can be expensive too. However, if the risk of loss or harm by an ex-employee is significant, then it could be the best way to proceed. The alternative of doing nothing, is not likely to prevent an individual from continuing to use confidential information or from working for a competitor.

The first step is to work out what an individual has done, in so far as you are able to, and review the relevant contracts in place to decide whether they have or will be breached, in addition to considering the equitable principles of confidentiality. Prompt action thereafter and the threat of legal proceedings may result in undertakings being provided to you by the individual, which would potentially prevent the need to seek a formal injunction.

The key message here is that if you discover that an employee or ex-employee is seeking to misuse confidential information or work in competition with you, then you need to decide quickly what action you want to take.

Considerations for the future…

The position on business protection and in particular, restrictive covenants is evolving. As reported within a recent Employment Law Bulletin, there are Government proposals afoot to potentially limit, by statute, non-compete restrictive covenant clauses.

The thinking behind this is that it will increase flexibility for employees changing jobs within the same sector and in setting up competing businesses. This may sound pessimistic for employers but if laws are introduced, then it will be important to fully analyse how this new legislation may affect your business.

Until then, it is business (protection) as usual.

If you have any questions in connection with the content of this article or employment law in general, please contact Catherine Hope in the Employment Team at catherine.hope@sintons.co.uk or on 0191 226 3801 or Adam Hutton in the Dispute Resolution Team at adam.hutton@sintons.co.uk or 0191 226 3134.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 49

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 49’ – with Keith Land & Angela Carver.

The team covered the following questions:

  • Can I withdraw an offer of employment before an employee starts work?
  • What are most important things to remember when holding a disciplinary hearing?
  • How do I progress a grievance when an employee is indicating that they are too unwell to attend?

Please click below to either listen as a podcast or watch as a video.

Sintons adds five new aspiring solicitors to its team

Law firm Sintons has continued its commitment to supporting the next generation of legal talent by recruiting its latest round of aspiring lawyers.

Sintons has added four new graduate trainees to its ranks, as well as a new solicitor apprentice who will embark on the North East Solicitor Apprenticeship (NESA) course towards qualification.

Corina Dias, Jessica Fields, William Chapman and Anthony May all join Sintons as trainee solicitors, selected from scores of applicants to undertake the two-year training programme, which will see them gain experience in a number of practice areas ahead of qualification.

In their first seats, which will last for six months, Corina will join the Employment team; Jessica will be in Neurotrauma; and William and Anthony will join the Real Estate department.

Faith Ramsay becomes Sintons’ latest solicitor apprentice, and will be supported for the next six years through the NESA programme – of which Sintons was a founder member – comprising legal experience and part-time academic study at Northumbria University.

She will begin her training at Sintons in the Dispute Resolution department.

Sintons’ existing trainees – who are in their second and final year of training – will also move seats from September as their development continues.

Lucy Milnthorp moves to Dispute Resolution; Charles Bell joins Construction & Engineering; and Edward Pattinson moves to Wills, Trusts and Probate.

Solicitor apprentices Saffron Sinclair will move to Corporate, Sabrina Jackland will join Residential Conveyancing and Sophie Lemon will remain in Wills, Trusts and Probate.

The addition of five new people – and ongoing development of its existing trainees – continues Sintons’ longstanding commitment to offering opportunities to the next generation of legal professionals, investing in their training and development and delivering supervision and support from lawyers who are leaders in their field regionally and nationally.

Christopher Welch, managing partner of Sintons, says: “At Sintons, we are committed to offering opportunities to outstanding legal talent throughout their time at Sintons. Investing in the progression and development of our team is absolutely fundamental to what we do here, and in how we value and recognise the people who make Sintons what it is.

“Our long track record in supporting lawyers through training contracts, and more recently apprenticeships, is something we are very proud of. Several of our senior lawyers in the firm began their careers at Sintons as trainees, which speaks volumes about the quality of our training and the ethos of the firm as a place to build a highly successful career.

“We welcome Corina, Jessica, William, Anthony and Faith to Sintons, and will support them with the highest quality of training and development from day one. Best of luck to Lucy, Charles, Edward, Saffron, Sabrina and Sophie as they continue to build their careers and advance the excellence progress they have already made during their time with us.”

Employment Law E-Bulletin – Issue 90

  • Rights to participate in share incentive plan transferred under TUPE – Ponticelli UK Ltd v Gallagher [2023] CSIH 32
  • Increase in civil penalties for illegal employment
  • Employer’s online application form triggered duty to make reasonable adjustments for candidate with dyspraxia – AECOM Ltd v Mr C Mallon: [2023] EAT 104

Rights to participate in share incentive plan transferred under TUPE – Ponticelli UK Ltd v Gallagher [2023] CSIH 32

The recent case of Ponticelli UK Ltd v Gallagher [2023] CSIH 32 considered whether an employee’s right to participate in a share incentive plan transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”).

Mr Gallagher (the “Claimant”) was employed by Total Exploration and Production UK Limited (“Total”) and participated in a share incentive plan. This plan was not mentioned in his employment contract.

The Claimant’s employment transferred to Ponticelli UK Ltd (the “Respondent”) under TUPE in May 2020. The Claimant’s participation in the share incentive plan with Total ended and he was not offered a comparable share scheme. Instead he was to receive a lump sum payment of £1,855. The Claimant rejected the offer and brought a tribunal claim, arguing that he had the right to participate in an equivalent scheme following the transfer.

The Employment Tribunal and Employment Appeal Tribunal upheld the claim, finding that as the Claimant’s rights to participate in the plan formed an integral part of his financial package, they arose “in connection with” his contract of employment for the purposes of TUPE. The Claimant’s rights to participate in the plan had therefore transferred under TUPE and he was entitled to participate in a plan of substantive equivalence or comparable value to the plan operated by Total.

The Respondent appealed to the Court of Session. Their main ground of appeal was based on the decision in Chapman v CPS Computer Group plc [1987] IRLR 462, CA. In Chapman, the Court of Appeal had held that employees who had been transferred out of a company had been made redundant for the purposes of a share option plan they were members of. As a result, this allowed them to exercise their options. The Respondent used Chapman as authority that where a share option plan is separate from the contract of employment, the rights under the plan do not transfer under TUPE.

The Court of Session decided that Chapman was of no assistance. This was because the case only considered whether the option holders had ceased to be employees by reason of redundancy and did not address whether rights under the share option plan were “connected with” the contract of employment and capable of transferring under TUPE.

The Court of Session dismissed the appeal.

Points to note:

This is a notable decision that makes clear that that a share scheme, even where not mentioned in the contract of employment, can arise ‘in connection with’ the employment contract as part of an employee’s broader financial package.

The decision will present practical difficulties for organisations who may find themselves as incoming employers (transferees) in a TUPE transfer, particularly if they do not operate a similar share scheme for their existing employees. This could apply to other benefits, such as bonuses or commission, which are considered to be ‘in connection’ with employment, meaning incoming employers then having to implement a substantially equivalent benefit post transfer.

As an employer, if you are involved in a transaction where TUPE applies, it is key that you establish whether the outgoing employer (the transferor) operates a share scheme, or other benefits, and gain full insight into how they operate. In doing so, you will be able to determine the true extent of your obligations post-transfer and address any issues before the transfer takes place.

Increase in civil penalties for illegal employment

The Government have recently announced a threefold increase in the civil penalties that will apply to employers who fail to carry out their obligations to employ individuals who do not have the appropriate right to work and reside in the UK. These changes, which are expected to come into force at the beginning of 2024, will see civil penalties rise from £15,000 per illegal employee up to £45,000. Repeat breaches will attract a fine of up to £60,000, a penalty which is currently £20,000.

Points to note:

For employers, this announcement underscores the importance of conducting thorough right to work checks for all employees before and during employment. To comply with their obligation to prevent illegal working, employers must:

  • Carry out right to work checks on all prospective employees before employment commences.
  • Conduct follow-up checks on employees who have time-limited permission to live and work in the UK.
  • Keep records of all the checks carried out.
  • Not employ anyone they know or have reasonable cause to believe is an illegal worker.

Employer’s online application form triggered duty to make reasonable adjustments for candidate with dyspraxia – AECOM Ltd v Mr C Mallon: [2023] EAT 104

The Employment Appeal Tribunal (“EAT”) has held that an employer’s online application form put a candidate with dyspraxia at a substantial disadvantage, and therefore triggered the employer’s duty to make reasonable adjustments.

In April 2017, Mr Mallon (the “Claimant”) commenced employment with AECOM Ltd (the “Respondent”) in its Birmingham office. In December 2017, the Claimant was dismissed for unsatisfactory performance. In August 2018, the Claimant wished to apply for a role in the Respondent’s Fiscal Incentives team in London. To apply, he was required to complete an online application form and he was unable to create the required username and password because of his disability.

The Claimant emailed the Respondent asking that he be permitted to make an oral application because of his disability. The Respondent maintained its position that the Claimant was required to complete the online form but informed him that he should let them know of any particular difficulties he had in doing so. The Claimant did not confirm the difficulties he was facing and repeated that he would prefer to make an oral application.

Unable to complete the online form, the Claimant brought a claim for failure to make a reasonable adjustment, being an oral job application. In 2019, the Employment Tribunal struck out the claim on the basis that it had no reasonable chances of success. In 2021, the EAT upheld the Claimant’s appeal. The case was remitted to a reconstituted Employment Tribunal.

The Employment Tribunal upheld the claim, stating that the Respondent had sufficient knowledge of the disadvantage and that although it did not know of the Claimant’s particular difficulties, it was unreasonable to expect an explanation by email and they should have telephoned the Claimant to ask for more details.

The Respondent appealed to the EAT, arguing that the Claimant was not a genuine applicant as he had already been dismissed from a similar role and that they had not come under a duty to make reasonable adjustments because the Claimant had not explained his specific difficulties. The EAT upheld the Employment Tribunal’s findings that the Respondent was under a duty to make reasonable adjustments. It ruled that the Claimant was a genuine applicant, as he was applying to work in a different team from that he had worked in previously.

The case was remitted to the Employment Tribunal for reconsideration as to whether the Claimant was a genuine applicant for the role.

Points to note:

This case is a useful reminder for employers to consider their internal procedures when recruiting employees and whether any candidates require reasonable adjustments.

As an employer, you should make reasonable efforts to confirm whether candidates have a disability, and if they do, you must confirm whether they require any reasonable adjustments. In this instance, enquiries should be made via telephone for candidates who have difficulties with written communication.

Right to participate in share incentive plan transferred under TUPE

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) are designed to safeguard the rights of employees when there is a transfer of the business they work within, or a change in the organisation providing the service they are employed to carry out. Under TUPE, those employees and all of the rights and liabilities connected with their employment, pass from the old employer to the new employer. It is essential that employers understand when TUPE applies, and what rights and liabilities will transfer to them, so that they are then aware of any significant burdens coming their way and can manage these.

The recent case of Ponticelli UK Ltd v Gallagher [2023] CSIH 32 considered whether an employee’s right to participate in a share incentive plan transferred under TUPE.

In this case, Mr Gallagher was employed by Total Exploration and Production UK Limited. Total Exploration and participated in a share incentive plan. This plan was not mentioned in his employment contract.

Mr Gallagher’s employment transferred to Ponticelli UK Ltd under TUPE in May 2020. His participation in the share incentive plan with Total Exploration ended and he was not offered a comparable share scheme. Instead he was to receive a lump sum payment of £1,855. Mr Gallagher rejected the offer and brought a tribunal claim, arguing that he had the right to participate in an equivalent scheme following the transfer.

The Employment Tribunal and Employment Appeal Tribunal upheld the claim, finding that as Mr Gallagher’s rights to participate in the plan formed an integral part of his financial package, they arose “in connection with” his contract of employment for the purposes of TUPE. Mr Gallagher’s rights to participate in the plan had therefore transferred under TUPE and he was entitled to participate in a plan of substantive equivalence or comparable value to the plan operated by Total Exploration.

Ponticelli UK Ltd appealed to the Court of Session, its main ground of appeal was based on the decision in Chapman v CPS Computer Group plc [1987] IRLR 462, CA. In Chapman, the Court of Appeal had held that employees who had been transferred out of a company had been made redundant for the purposes of a share option plan they were members of. As a result, this allowed them to exercise their options. Ponticelli UK Ltd used Chapman as authority that where a share option plan is separate from the contract of employment, the rights under the plan do not transfer under TUPE.

The Court of Session decided that Chapman was of no assistance. This was because the case only considered whether the option holders had ceased to be employees by reason of redundancy and did not address whether rights under the share option plan were “connected with” the contract of employment and capable of transferring under TUPE.

The Court of Session dismissed the appeal.

What does this mean?

Employers have usually avoided share schemes transferring under TUPE by deliberately keeping them separate from contracts of employment and stating within the scheme rules that they are not contractual. However, this case makes it clear that a share scheme, even where not mentioned in the contract of employment, can arise ‘in connection with’ the employment contract as part of an employee’s broader financial package.

This decision presents practical difficulties for organisations who may find themselves as incoming employers (transferees) in a TUPE transfer, particularly if they do not operate a similar share scheme for their existing employees. This could apply to other benefits, such as bonuses or commission payments, which are considered to be ‘in connection’ with employment, meaning incoming employers then having to implement a substantially equivalent benefit post transfer.

If you are involved in a transaction where TUPE applies, it is key that you establish whether the outgoing employer (the transferor) operates a share scheme, or other benefits, and gain full insight into how they operate. In doing so, you will be able to determine the true extent of your obligations post-transfer and address any issues before the transfer takes place.

If you have any questions in relation to this article, or in relation to TUPE or employment law generally, please contact a member of the team.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 48

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 48’ – with Catherine Hope, Samuel Scott & Edward Pattinson.

The team covered the following questions:

  • How can I prevent illegal working within my company, and what are the consequences if I fail to do this?
  • An employee has complained that he hasn’t been paid enough in his bonus and that he is whistleblowing. Is this a protected disclosure?
  • Can one of my employees bring a claim in the employment tribunal if they have been bullied?

Please click below to either listen as a podcast or watch as a video.

Employment Law E-Bulletin – Issue 89

  • Bullying and Respect at Work Bill introduced to Parliament
  • Employment Tribunal rules that singing a song amounted to sexual harassment – Mr S Nunns v SBH Windermere Ltd and Mr A Wilson (unreported case)
  • Employment tribunal awards over £100,000 in gender-critical belief discrimination claim – Forstater v CGD Europe [2023] 6 WLUK 478

Bullying and Respect at Work Bill introduced to Parliament

On 11 July 2023, Labour’s Rachael Maskell presented her Bullying and Respect at Work Bill to Parliament.

Employees are currently limited in how they can claim against workplace bullying. Bullying itself is not against the law, but harassment is. An employee can either claim for harassment under the Equality Act 2010, or follow workplace internal procedures, such as raising a grievance.

Since harassment requires unwanted conduct to be related to a protected characteristic, a harassment claim may prove difficult to bring, and an employee can be left with internal procedures as the only remedy. The Bill seeks to address this issue.

If the Bill becomes law, the following changes would be implemented:

  1. the introduction of a statutory definition of workplace bullying;
  2. the introduction of a Respect at Work Code, setting minimum standards for positive and respectful work environments;
  3. employment tribunals would be able to hear workplace bullying claims, and;
  4. the Equality and Human Rights Commission would be able to investigate workplaces where there is evidence of bullying, and take appropriate enforcement action.

Under the Bill, employers will likely face sanctions if they do not deal with workplace bullying appropriately, with the Equality and Human Rights Commission given powers to investigate employers in breach of the new legislation. The Bill offers further protection for employees, with new avenues to pursue complaints of workplace bullying, whilst introducing potentially greater liability for employers who don’t take steps to deal with it.

The next stage for the Bill, the Second Reading in the House of Commons, is scheduled to take place on 24 November 2023.

Points to note:

By defining workplace bullying, establishing obligations, protecting employees’ rights and outlining the consequences, the proposed legislation offers greater protection for employees. Employers should ensure that they have clear anti-bullying policies in place and that these are implemented properly with staff training and steps taken to raise awareness.

Further updates will be provided when we have more information.

Employment Tribunal rules that singing a song amounted to sexual harassment – Mr S Nunns v SBH Windermere Ltd and Mr A Wilson (unreported case)

An Employment Tribunal recently ruled that singing “The Ballad of Barry and Freda”, in a certain manner, amounted to sexual harassment.

Mr Nunns (the “Claimant”) was employed by SBH Windermere Limited (the “First Respondent”) as the Head Chef at Windermere Manor Hotel. The Claimant alleged that he had been sexually harassed by Mr Wilson (the “Second Respondent”), the General Manager of the hotel, and that unauthorised deductions had been made from his wages. He claimed that the Second Respondent had sung “The Ballad of Barry & Freda” in front of him, placing particular emphasis on the words “let’s do it” which are repeated throughout the song, whilst making eye contact and disconcerting gestures towards him.

The Employment Tribunal held that the manner in which the Second Respondent sang the song amounted to unwanted conduct of a sexual nature, and that the Claimant had therefore been harassed by the First Respondent and the Second Respondent. The Claimant’s claim for unauthorised deductions from wages did not succeed.

Points to note:

This case is a good reminder of what can constitute harassment under the Equality Act 2010. The Employment Tribunal found that it was clear that the way in which the song was sung to the Claimant had the effect of violating his dignity, creating a degrading, humiliating and offensive environment for him. The Employment Tribunal will consider all relevant circumstances surrounding a sexual harassment allegation, when making a decision.

Employers need to carefully consider employee behaviour in the workplace, drawing attention to the manner in which behaviour is presented. Clear training should be given as to what can amount to harassment, so that this can be prevented and if taking place, identified and dealt with effectively. This is important, as an employer’s failure to identify and deal with instances of sexual harassment may lead to a successful claim being brought against them.       

Employment tribunal awards over £100,000 in gender-critical belief discrimination claim – Forstater v CGD Europe [2023] 6 WLUK 478

An Employment Tribunal has awarded over £100,000 in compensation to  Maya Forstater (the “Claimant”), following the well-publicised judgment that she had been discriminated against on the basis of her views on gender which constituted a philosophical belief for the purposes of the Equality Act 2010 (“EqA 2010”).

The Claimant held a contract as a visiting fellow and had entered into consultancy agreements with CGD Europe (the “Respondent”). In 2018, she expressed gender critical beliefs on social media, and, following an investigation, her visiting fellowship contract was not renewed.

In 2019, the Claimant brought a claim for belief and sex discrimination, claiming that her gender-critical beliefs constituted a protected “philosophical belief” under the EqA 2010. The claim failed at the preliminary stage when the Claimant’s gender critical belief was found not to amount to a philosophical belief that qualified for protection under the EqA 2010. The author, J.K Rowling, expressed support for the Claimant which raised the case to international attention.

In 2021, the Employment Appeal Tribunal (the “EAT”) ruled that the Employment Tribunal had applied the law erroneously, and held that the Claimant’s belief was a protected philosophical belief under the EqA 2010. The case was remitted to a freshly constituted tribunal.

In 2022, a fresh Employment Tribunal found that the Claimant had suffered direct discrimination and victimisation on the grounds of her philosophical belief. The sums awarded at the subsequent remedy hearing were £27,000 for injury to feelings (including aggravated damages), £14,000 for loss of earnings, £50,000 for loss of chance/loss of earning capacity, and £14,778.47 in interest.

The compensation was considerable for a number of reasons. One reason being that the Claimant’s injury to feelings was found to fall in the top range of the middle Vento band, as the discriminatory acts were held to be significant, took place over months and “affected the Claimant’s status within the Respondents’ organisation and in the eyes of the wider professional world”. Another reason being that the tribunal decided the sum for loss of chance/loss of earning capacity should reflect all of the possibilities one way or the other, as the discrimination limited the opportunities available to the Claimant, precipitating a career change.

Points to note:

This case is of course most notable for the previous judgments and is going to be an important one when considering the scope of protection under the EqA 2010 when it comes to philosophical beliefs, particularly beliefs around gender.

With compensation for unlawful discrimination being unlimited, employers will need to be careful when making decisions in consequence of an employee’s views, as any employee who meets the criteria for possessing a philosophical belief will be eligible to make a potentially costly claim.

Government announces threefold increase in civil penalties for illegal employment

It is unlawful for employers to employ individuals who do not have the appropriate right to work and reside in the UK. If an employer employs someone without the right to undertake the work for which they are employed, they may be subject to a civil penalty. Furthermore, an employer will commit a criminal offence if it employs an individual who it either knows is an illegal worker, or who it has “reasonable cause to believe” does not have the appropriate immigration status.

An employer’s failure to prevent illegal working will now result in greater liability, with the Government recently announcing a threefold increase in the civil penalties that will apply to employers who fall foul of their obligations. These changes, which are expected to come into force at the beginning of 2024, will see civil penalties rise from £15,000 per illegal employee up to £45,000. Repeat breaches will attract a fine of up to £60,000, a penalty which is currently £20,000.

For employers, this announcement underscores the importance of conducting thorough right to work checks for all employees before and during employment. To comply with their obligation to prevent illegal working, employers must:

  • Carry out right to work checks on all prospective employees before employment commences.
  • Conduct follow-up checks on employees who have time-limited permission to live and work in the UK.
  • Keep records of all the checks carried out.
  • Not employ anyone they know or have reasonable cause to believe is an illegal worker.

If you would any advice on matters contained in this article, or generally, please do not hesitate to contact a member of our Employment team on 0191 226 7878, or at www.sintons.co.uk.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 47

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 47’ – with  Max Winthrop & Catherine Hope.

The team covered the following questions:

  • Does an employee have a statutory right to be accompanied to a probationary review meeting if they will potentially be dismissed at the end of it?
  • What are the alternatives to the employment tribunal to resolve workplace disputes?
  • Changes to flexible working legislation

Please click below to either listen as a podcast or watch as a video.

The Employment Relations (Flexible Working) Bill receives royal assent

The Employment Relations (Flexible Working) Bill received royal assent yesterday (20 July 2023), meaning it becomes the Employment Relations (Flexible Working) Act 2023 (the Act).

When the Act comes into force it will bring the following changes to the current statutory flexible working regime:

  • employees will be able to make two flexible working requests within a 12 month period (currently they are limited to making one);
  • employers will need to make a decision in relation to a flexible working request within two months of the request being made (currently this is within 3 months);
  • employers will not be able to refuse a flexible working request until they have consulted with an employee (at this stage there is no further information in the legislation about what such consultation must involve); and
  • the removal of the requirement for employees to set out what the impact of their flexible working request might be, and how this might be dealt with.

It is important to note that, although there has been a lot of discussion about it in the media, the Act does not provide for the right to make a flexible working request to become a ‘day one’ right, as opposed to an employee needing to have at least 26 weeks’ service. The Government has confirmed that it will introduce this change, but it is not covered by this piece of legislation and is expected to be contained in separate secondary legislation.

It is expected that the measures in the Act, together with any secondary legislation, will come into force in a year’s time, to give employers time to prepare for the change. The Act will be supported by a statutory Code of Practice which is to be delivered by Acas and is currently under consultation. We will keep you updated in this regard.

The Government’s publication can be found here.

If you have any questions in relation to flexible working, or any employment law matter, please contact Catherine Hope at catherine.hope@sintons.co.uk or 0191 226 3801.

Government eases visa rules for construction and fishing industries

Bricklayers, plasterers and other roles within the building industry are to be added to the Government’s “shortage occupation list”. This means that visa restrictions are being temporarily eased to assist employers in areas where they have been struggling to recruit.

This follows recommendations from the Government’s Migration Advisory Committee, to add five roles within the building industry to the shortage occupation list. These cover the following:

  • Bricklayers and masons
  • Roofers, roof tilers and slaters
  • Carpenters and joiners
  • Construction and building trades not elsewhere classified
  • Plasterers

Dryliners will also be reclassified to the same occupation code as plasterers, meaning that this role will also be covered.

The following roles within the fishing industry will also be added to the shortage occupation list:

  • Agriculture and fishing trades not elsewhere classified.
  • Fishing and other elementary agriculture occupations not elsewhere classified.

These changes will come into force on 7 August 2023 and the additions of these roles to the shortage occupation list will mean employers can sponsor workers carrying out these roles via the skilled worker visa route. Lower salary requirements and lower visa application fees then also apply.

The following documents can be accessed here:

  • for a full statement of the changes click here
  • for an explanatory memorandum click here 

If you have any questions about these changes, or would like any further information about business immigration, please contact Catherine Hope at catherine.hope@sintons.co.uk or on 0191 226 3801.

Employment Law E-Bulletin – Issue 88

  • New family focused legislation receives HRH stamp of approval
  • A contractual term on the payment of holiday on termination cannot result in a payment which is lower than the statutory minimum – Connor v Chief Constable of the South Yorkshire Police [2023] EAT 42
  • The decision makers motivation in a discrimination case is key – Alcedo Orange Ltd v Ferridge-Gunn [2023] EAT 78

New family focused legislation receives HRH stamp of approval

The Carer’s Leave Bill, The Neonatal Care (Leave and Pay) Bill and The Protection from Redundancy (Pregnancy and Family Leave) Bill recently received royal assent. This means they become:

The Neonatal Care (Leave and Pay) Act

This will afford up to 12 weeks of paid neonatal care leave for employed parents whose children are admitted to neonatal care. This 12-week period will be in addition to other statutory leave available.

The Carer’s Leave Act 

This creates a new statutory unpaid leave entitlement of one week for employees who are caring for a dependant with a long-term care need. This will be a day one right which is in addition to other statutory leave.

The Protection from Redundancy (Pregnancy and Family Leave) Act

This extends the current protections afforded under statutory provisions for Maternity Leave, Adoption Leave and Shared Parental Leave to cover pregnancy and a period of time after a parent has returned to work.

Points to note:

Secondary legislation is needed to fully implement the new legislation and the timescales are somewhat loose. For employers, it will be key to ensure any internal policies are in line with the updated legislation and that the necessary staff are brought up to date with this. Further updates will be provided when we have more information.

A contractual term on the payment of holiday on termination cannot result in a payment which is lower than the statutory minimum – Connor v Chief Constable of the South Yorkshire Police [2023] EAT 42

The EAT has considered the correct approach to calculating pay for accrued statutory holiday on termination of employment, and whether, under a contractual term, a worker could receive less than the amount they would have been paid had they taken this during employment.

Mr Steven Connor (the “Claimant”) was employed by Chief Constable of the South Yorkshire Police between 1 November 2002 and 29 May 2020 when he was dismissed. Upon termination he was entitled to be paid in respect of accrued and untaken holiday after spending a year on sick leave. However, his contract contained the following term:

Employees may, on termination of employment, be entitled to payment for untaken annual leave or for other accrued time off. Advice on such entitlement obtained from HR Shared Service in the first instance. Payment will be based on 1/365th of annual salary for each day’s leave. Any payment will be subject to the usual statutory reductions.

The effect of this term meant that upon termination of his employment, the Claimant received a lower payment for accrued holiday than he would have received using the calculation set-out in the Working Time Regulations 1998 (“WTR”).

On termination of employment, a worker is entitled to pay in lieu of unused statutory holiday. The WTR provides that this can be provided for in a “relevant agreement” and where there is no such agreement, it provides a specific formula to use to calculate any sums due.

The Claimant brought an unlawful deduction of wages claim and in the first instance, the Employment Tribunal held that the contractual term was part of a ‘relevant agreement’ for the purposes of the WTR, and the calculation was therefore correct.

On appeal, the Employment Appeal Tribunal disagreed, holding that a ‘relevant agreement’ under the WTR cannot result in a payment which is lower than that which would be calculated using the formula provided by the WTR. The Claimant was entitled to the higher amount.

Points to note:

This is a valuable reminder that statutory provisions take precedence over contractual terms when it comes to setting the baseline. Contractual provisions will always be subject to any relevant statutory minimums. They can provide greater, but not lower, entitlements.      

The decision makers motivation in a discrimination case is key – Alcedo Orange Ltd v Ferridge-Gunn [2023] EAT 78

In this case the Employment Appeal Tribunal (“EAT”) considered whether an act carried out by an employee could be discriminatory on the basis of someone else’s motivation.

Mrs Ferridge-Gunn (the “Claimant”) was employed by Alcedo Orange Limited. Shortly after the commencement of her employment, the Claimant informed her line manager that she was pregnant. Performance concerns were raised by her line manager and the Managing Director before and after this. She was absent with morning sickness and her line manager found that she had not processed certain documents, leading the line manager to tell the Managing Director that the Claimant had misled her about her performance. The Claimant’s employment was later terminated for poor performance.

The Employment Tribunal upheld the Claimant’s claim of pregnancy discrimination, finding that the information the manager communicated to the Managing Director had been motivated by the Claimant’s pregnancy. The Claimant had therefore been dismissed because of her pregnancy or a pregnancy-related absence.

The EAT allowed the appeal. The Tribunal had not been referred to the case of Reynolds v CLFIS (UK) Ltd [2015] EWCA Civ 439 which held that liability for a discriminatory dismissal can only arise where the employee who carried out the discriminatory act was motivated by a protected characteristic of the dismissed employee. An act cannot be discriminatory on the basis of someone else’s motivation. In this case analysis was required as to whether this was the Managing Director or the line manager’s decision, and if it was the Managing Director’s decision, whether he was motivated by the Claimant’s pregnancy. The case was remitted to the employment tribunal.

Points to note:

This is a useful reminder that a decision-makers motivation is key when an employment tribunal considers a discrimination case. This differs from dismissal following whistleblowing where the Supreme Court has confirmed that where the real reason for a dismissal is hidden from the decision maker behind an invented reason, the hidden reason can be attributed to the employer.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 46

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 46’ – with  Max Winthrop & Edward Pattinson.

The team covered the following questions:

  • Can employers be liable for harassment occurring at social events?
  • National Minimum Wage – naming and shaming due to common mistakes.
  • We have detailed policies covering dignity at work: will these help in defending harassment claims?

Please click below to either listen as a podcast or watch as a video.

The importance of a fair disciplinary procedure when dismissing on the grounds of misconduct

It is vital that an employer follows a fair disciplinary procedure before deciding to  dismiss an employee on the grounds of misconduct (where they have at least 2 years’ service). Any failure to do so will leave it exposed to an unfair dismissal claim. In a recent case before the Employment Tribunal in Scotland, South Lanarkshire Leisure and Culture Trust illustrated how not to approach a disciplinary investigation. It’s actions resulted in an £800,000 payout to a former employee.

As well as unfair dismissal, the claimant in this case also successfully claimed disability discrimination and wrongful dismissal, but when it came to unfair dismissal, the Employment Tribunal found that the decision to dismiss the claimant was based on obvious inconsistencies, errors and incorrect assumptions which no reasonable employer would have made. For example, it was found that there had been a failure to interview two key witnesses, which resulted in the disciplinary report containing “serious misrepresentations” of the claimant’s actions. It was also found that the employee appointed as fact finder as part of the process went “well beyond” her remit of fact finding, and strayed into interpretating facts and recording her own opinions as fact.

This is a useful reminder of the importance of carrying out a fair and thorough investigation when it comes to allegations of misconduct. Employers should ensure they have robust procedures in place and that staff are properly trained as to what needs to take place.

The full case report can be found here.

If you would like any advice on matters contained in this note, or in relation to employment law generally, please do not hesitate to contact a member of our Employment team.

The legal risks of failing to pay the minimum wage

WH Smith, Marks & Spencer and Argos are among more than 200 companies who have recently been named and shamed as falling foul of National Minimum Wage legislation. This large list of companies have been called out by the Department for Business and Trade for failing to pay the minimum wage, with breaches dating as far back as 2017. The companies face penalties of nearly £7 million, and must reimburse all affected employees.

WH Smith, being the worst offender, blamed its breach on an error in its uniform policy. The retailer said that it had misinterpreted how the legislation applied to the uniform policy, and had asked staff to wear specific trousers, skirts and shoes, without reimbursing them for the cost.

Failure to account for deductions or payments for uniforms is a common cause of minimum wage underpayment. Employers must account for the cost of compliance with uniform requirements when determining whether they are paying the minimum wage. This is because any deductions or payments due from workers for uniform is classed as expenditure in connection with the employment, which reduces minimum wage pay.

A breach of National Minimum Wage legislation can result in a penalty of up to 200% of the underpayment, as well as the reputational damage of being named and shamed. Employers should therefore review their existing policies to evaluate any potential risk of non-compliance, and if necessary, consider how to swiftly resolve any underpayments.

If you would like any advice on matters contained in this note, or in relation to employment law generally, please do not hesitate to contact a member of our Employment team.

Subconscious Discrimination

Unconscious or Subconscious bias refers to an unconscious form of discrimination that arises from false beliefs, assumptions and/or stereotypes that usually relate to protected characteristics, for example age, race, gender or sexual orientation.

It is important, as an employer to recognise that such bias may well exist in the workplace and may influence key business decisions, such as recruitment and internal promotions. Ms Kohli alleged this very issue in a case against the Department for International Trade.

Ms Kohli was of Indian origin and alleged among other issues, that the Department for International Trade directly discriminated against her on grounds of race in failing to afford her various internal roles. Further, Ms Kohli alleged discriminatory treatment in in the way her appraisal grade was issued.

The Employment Tribunal dismissed the claims and found that there were valid operational reasons for the lack of job appointment, and the appraisal grade was based on an honest assessment by her manager, which in turn had no adverse impact on job opportunities or career development.

Ms Kohli appealed to the Employment Appeal Tribunal alleging the Employment Tribunal had failed to consider the question of subconscious discrimination and how this may have had an impact on the actions of her employer.

The Employment Appeal Tribunal were required to consider whether the failure to separately assess subconscious discrimination in a direct race discrimination claim was in fact an error of law.

On 1 June 2023, the Employment Appeal Tribunal determined that there were no facts from which it could determine that the Department for International Trade had acted on the basis of stereotyping or assumptions based on Ms Kohli’s Indian origin; there was no error of law.

The Employment Appeal Tribunal also determined that the Employment Tribunal will consider the issue of subconscious bias in line with the facts of individual cases and there is no requirement to separately and exclusively consider bias in every case.

What does this mean?

This case, whilst not ground breaking, is a reminder that in discrimination cases, the motivation of the alleged discriminator is a live question for the Employment Tribunal. It is, on the basis of this judgement, plausible to expect the intention of the alleged discriminator to be explored as part of the wider question of discrimination.

As an employer, it is key that you are also aware of the motivations of decision makers in the organisation. If an internal complaint is made suggesting bias, reasonable steps should be taken to consider this.  Has employee A been passed over for promotion as a woman with childcare responsibilities, or is there a genuine material reason for the promotion being afforded to a colleague? For example, employee B has longer service, generates more profit and has a more adaptable skill set.

It is important to be alive to the potential of bias, have adequate policies and procedures, and provide suitable and effective training for all staff. This not only makes for a more pleasant work environment but will likely add further protection for an employer if a claim is made.

If you would any advice on matters contained in this article, or generally, please do not hesitate to contact a member of our Employment team on 0191 226 7878, or at www.sintons.co.uk.

Employment Law E-Bulletin – Issue 87

  • Government scraps the sunset clause
  • Proposals to limit non-compete clauses
  • EAT upholds unfair dismissal decision where an employer failed to consider furlough as an alternative to redundancy – Lovingangels Care Limited v Mhindurwa [2023] EAT 65

Government scraps the sunset clause

On the 10th May 2023, the Business and Trade Secretary, Kemi Badenoch, announced the removal of the “sunset clause” from the Retained EU Law (Revocation and Reform) Bill (the “Bill”). The Government introduced the Bill in September 2022, as part of the UK’s legal journey following the Brexit Referendum in June 2016.

In the Bill, the sunset clause was designed to provide a clear end date for retained EU laws in the UK. ‘Retained EU law’ is a category of UK law, based on the EU and EU-derived law which applied to the UK at the end of the Brexit transition period. If put into effect, the sunset clause would have meant that all retained EU law would have automatically expired on 31st December 2023, unless expressly retained.

The abandonment of the sunset clause means that the retained EU law will remain in force in the UK unless it is expressly repealed. The Bill will now be amended to include a list of the retained EU laws that the Government intends to revoke on 31 December 2023. An initial list has already been prepared. There isn’t anything at present within this which stands out particularly from an employment perspective, as those which are employment related include lesser known regulations such as:

  • The Community Drivers’ Hours and Working Time (Road Tankers) (Temporary Exception) (Amendment) Regulations 2006; and
  • The Posted Workers (Enforcement of Employment Rights) Regulations 2016.

Further to this, on the 12th May 2023 the Government launched a consultation on reforms to the Working Time Regulations 1998 (“WTR”), and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). These proposals were originally announced in the Government’s policy paper, Smarter Regulation to Grow the Economy, which was published on the 10 May.

The consultation is seeking views on the following areas, to ensure that the applicable law is fit for purpose for UK employers and workers:

  • record keeping requirements under the WTR;
  • simplifying annual leave and holiday pay calculations in the WTR; and
  • consultation requirements under TUPE.

The consultation closes on 7th July 2023.

This appears to offer certainty for employers and businesses by confirming that there are not going to be any significant changes to key employment legislation. However, seeing as ministers will retain the power to make changes to retained EU law, further changes may be announced further down the line. Employers and businesses will need to stay up-to-date with future announcements and we will be keeping an eye out for these.

Proposals to limit non-compete clauses

On 10 May 2023, the Government announced its intention to introduce new legislation which will restrict the duration of non-compete restrictive covenants to a maximum of three months. This follows the Government’s consultation on measures to reform post-termination non-compete clauses in employment contracts which was launched in 2020.

Non-compete clauses are commonplace with UK businesses to prevent employees from either joining a competitor or setting up a rival business and taking customers once their employment has ended. The Government hopes that the new proposals will increase flexibility for employees to move jobs within the same sector, as well as encourage competition by enabling employees to set up rival businesses at an earlier stage post-termination of employment.

In terms of when this change will be introduced, there is currently no set date for the required primary legislation to be introduced, with the Government stating that this will be when Parliamentary time allows. It remains to be seen whether this policy is one the Government intends to push forward in lead-up to next general election.

Employers will still be able to restrict employee’s activities with the use of garden leave and other post termination restrictions, with the proposals applying only to non-compete restrictions. However, employers should keep alert to when these proposals are implemented as documentation, such as contracts of employment, may need to be updated at this point.

EAT upholds unfair dismissal decision where an employer failed properly to consider furlough as an alternative to redundancy – Lovingangels Care Limited v Mhindurwa [2023] EAT 65

The EAT has upheld an employment tribunal’s decision that an employee was unfairly dismissed where the employer had failed properly to consider furlough, under the Coronavirus Job Retention Scheme, as an alternative to redundancy.

Mrs Mhindurwa (the “Claimant”) was employed as a care assistant by Lovingangels Care Limited (the “Respondent”) from 2018, providing live-in care to a client at home. In February 2020, the client was admitted to a nursing home and the Claimant was no longer required to provide care. The Respondent informed the Claimant that no alternative live-in care work was available due to the COVID-19 pandemic and, after a further meeting, informed her that there was no alternative to redundancy and terminated her employment. The Claimant appealed on the basis that she should be furloughed under the Coronavirus Job Retention Scheme, and her appeal was rejected by the Respondent at the time.

In the first instance the Employment Tribunal held that the Claimant had been unfairly dismissed as the Respondent had failed to properly consider furlough leave, even on a temporary basis, as an alternative to redundancy.

The EAT upheld the decision, stating that the employment judge had been entitled to apply the same approach to furlough leave as he would to any possible alternative to dismissal that an employer might be expected to consider if acting reasonably.

The EAT stated that:

“Determining a claim of unfair dismissal in respect of a dismissal that occurred in circumstances related to the Coronavirus pandemic does not require any variation to the law of unfair dismissal, which is robust enough to deal with such exceptional circumstances.”

There was not a requirement to change the legal test to be applied when looking at whether a dismissal was unfair in the context of the Covid pandemic.

Points to note:

This is a useful reminder of the basics of what will constitute a fair dismissal when it comes to redundancy under the Employment Rights Act 1996. One of the things this will depend on is whether in the circumstances (including its size and administrative resources) an employer has acted reasonably in treating redundancy as a sufficient reason for dismissing an employee.

As part of this a tribunal must consider whether a decision to dismiss an employee falls within a range of responses a reasonable employer could have adopted (the “band of reasonable responses” test). Employers should ensure they consider any possible alternatives to redundancy when engaging in a consultation process. Here it wasn’t that it would necessarily have been unfair to make an employee redundant while furlough leave was available, but rather the lack of consideration of this as an alternative, or a good explanation as to why this had been rejected,  which was problematic.

New family focused legislation receives HRH stamp of approval

Back in 2022, three private members bills were tabled to provide enhanced protection to those with caring responsibilities. On the 24 May 2023, The Carer’s Leave Bill, The Neonatal Care (Leave and Pay) Bill and The Protection from Redundancy (Pregnancy and Family Leave) Bill received royal assent from King Charles.

The Neonatal Care (Leave and Pay) Act

This new legislation will afford up to 12 weeks of paid neonatal care leave for employed parents whose children are admitted to neonatal care. This 12-week period will be in addition to other statutory leave available.

In yesterday’s press release, Parliamentary Under Secretary of State (Department for Business and Trade), Kevin Hollinrake confirmed,

We know how stressful it can be for parents caring for a new-born in neonatal care, or someone who is trying to juggle work with caring responsibilities, and these additional protections will ensure they get the support they need.”

The Carer’s Leave Act

Following the 2021 census, the Office of National Statistics confirmed that in England and Wales an estimated 5 million residents provided unpaid care in 2021, saving the UK millions.

The Carer’s Leave Act creates a new statutory unpaid leave entitlement of one week for employees who are caring for a dependant with a long-term care need. This will be a day one right which is in addition to other statutory leave.

The Protection from Redundancy (Pregnancy and Family Leave) Act

Following research between the Department for Business, Innovation and Skills and the Equality and Human Rights Commission, it was reported that one in nine mothers reported that they were either dismissed; made compulsorily redundant, where others in their workplace were not; or treated so poorly they felt they had to leave their job.

This legislation extends the current protections afforded under statutory provisions for Maternity Leave, Adoption Leave and Shared Parental Leave to cover pregnancy and a period of time after a parent has returned to work.

Next Steps

Secondary legislation will be needed to fully implement the new legislation and timescales are somewhat loose.

For businesses, it is key to ensure any internal policies are in line with the updated legislation and staff are suitably trained on the changes. Further updates will be provided when we have more information.

If you would any advice on matters contained in this article, or generally, please do not hesitate to contact a member of our Employment team on 0191 226 7878, or at www.sintons.co.uk.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 45

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 45’ – with Catherine Hope & Max Winthrop.

The team covered the following questions:

  • Government to introduce three month limit on duration of non-compete restrictions
  • Sunset clause removed from the Retained EU Law (Revocation and Reform ) Bill
  • Can I reclaim overpayment of wages from an employee?

Please click below to either listen as a podcast or watch as a video.

Abandonment of the Sunset Clause and proposals for change to EU retained law

On the 10th May 2023, the Business and Trade Secretary, Kemi Badenoch, announced the removal of the “sunset clause” from the Retained EU Law (Revocation and Reform) Bill (the “Bill”). The Government introduced the Bill in September 2022, as part of the UK’s legal journey following the Brexit Referendum in June 2016.

What was the sunset clause?

In the Bill, the sunset clause was designed to provide a clear end date for retained EU laws in the UK. ‘Retained EU law’ is a category of UK law, based on the EU and EU-derived law that applied to the UK at the end of the Brexit transition period. If put into effect, the sunset clause would have meant that all retained EU law would have automatically expired on 31st December 2023, unless expressly retained.

What happens now?

The abandonment of the sunset clause means that the retained EU law will remain in force in the UK unless it is expressly repealed. The Bill will now be amended to include a list of the retained EU laws that the Government intends to revoke on 31 December 2023.

In her written parliament statement, Ms Badenoch stated:

“This provides certainty for business by making it clear which regulations will be removed from our statue book, instead of highlighting only the (retained EU laws) that would be saved. We will retain the vitally important powers in the Bill that allow us to continue to amend EU laws, so more complex regulation can still be revoked or reformed after proper assessment and consultation”.

The Government has published a list of selected EU based statutory instruments it intends to repeal at the end of the year. There isn’t anything within this which stands out particularly from an employment perspective, as those that are employment related include lesser known regulations such as:

  • The Community Drivers’ Hours and Working Time (Road Tankers) (Temporary Exception) (Amendment) Regulations 2006; an
  • The Posted Workers (Enforcement of Employment Rights) Regulations 2016.

Government Consultation – Proposed Reforms

However, what is of more importance to note at this stage is the consultation that the Government launched on 12th May 2023 on potential reforms to the Working Time Regulations 1998 (“WTR”), and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). These proposals were originally announced in the Government’s policy paper, Smarter Regulation to Grow the Economy, which was published on 10 May. This also announced the proposal that non-compete clauses in employment contracts should be limited to three months.

The consultation is  seeking views on the following areas, to ensure that the applicable law is fit for purpose for UK employers and workers:

  • record keeping requirements under the WTR;
  • simplifying annual leave and holiday pay calculations in the WTR; and
  • consultation requirements under TUPE.

In brief, the Government is proposing the following changes:

  • In terms of the WTR – removing the requirement to record daily working hours, including overtime, worked by employees, merging the two separate amounts of holiday entitlement (4 weeks and 1.6 weeks) and creating a singular leave entitlement of 5.6 weeks, setting out a minimum rate of holiday pay and arrangements for carrying over leave in legislation, and introducing rolled up holiday pay as an additional option for calculating holiday pay.
  • In terms of TUPE – extending the flexibility for employers to consult directly with employees (currently available for micro businesses) to small businesses (if there are no existing employee representatives in place), and to all sizes of business where a transfer of a small number of employees is proposed.

The Government has also confirmed that it will preserve key employment law legislation, including:

  • Maternity and Parental Leave etc Regulations 1999
  • Paternity and Adoption Leave etc Regulations 2002
  • Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
  • Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002
  • The Agency Workers Regulations 2010
  • Information and Consultation of Employees Regulations 2004
  • Transnational Information and Consultation of Employees Regulations 1999

Whilst this provides some certainty for employers in relation to certain pieces of key legislation, and suggests that others such as the WTR and TUPE (albeit with some changes) are also likely to remain, further changes may be announced further down the line. Employers and businesses will need to stay up-to-date with future announcements and we will be keeping an eye out for these.

The list of EU based statutory instruments the Government intends to repeal at the end of this year can be found by clicking here.

If you have any questions about this, or any other employment law matter, please contact a member of the Employment team.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 44

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 44’ – with Keith Land & Angela Carver.

The team covered the following questions:

  • If I dismiss an employee a short time before they have 2 years’ service, can they claim unfair dismissal?
  • Does a mental health condition arising from menopause amount to a disability under the Equality Act 2010?
  • The trade union keeps posting information on social media which is inaccurate during negotiations is there anything that we can do?

Please click below to either listen as a podcast or watch as a video.

Workplace mental health addressed in seminar

Mental health in the workplace will be examined in an upcoming event being held by Sintons.

Employee wellbeing is a key concern for businesses in creating a happy, healthy workforce, with mental health in particular being under the spotlight.

Now, in this seminar from Sintons’ employment team – Disability Discrimination and Mental Health: Guidance for the Workplace – employers will be supported to better understand their obligations and best courses of action in supporting workers.

The event, on April 27 in Newcastle, will look at action employers must take with regard to mental ill health and the implications of getting things wrong, and will also offer guidance on managing mental health within the workplace.

The seminar is the latest in a series of events held by Sintons’ employment team, all of which are full to capacity and a regularly oversubscribed.

Keith Land, head of employment at Sintons – and independently acknowledged as one of the leading employment specialists in the North of England – said: “Mental health is a very well-discussed topic, but it’s essential that employers understand their duties and obligations.

“For many businesses, they may think they are adhering to what they need to do – but is that actually the case? Hopefully in this event, we can help to shed some light on what employers are duty-bound to deliver, as well as delivering guidance around best practice in this area.

“Everyone wants to have a healthy and content workforce, but achieving that can sometimes be more difficult. Through this seminar, we hope offer some support in making that a reality.”

* The Disability Discrimination and Mental Health: Guidance for the Workplace seminar will be held on Thursday, April 27, from 8am to 10am at the Vertu Motors Arena, Scotswood Road, NE4 7AF. To register, contact Peter.jennings@sintons.co.uk.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 43

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 43’ – with Catherine Hope & Max Winthrop.

The team covered the following questions:

  • If an employer does not have a sickness policy, can it use a disciplinary policy to deal with absence, albeit that the sickness is genuine?
  • What options are available to an employer if it states an incorrect salary figure on an offer letter?
  • New Vento bands

Please click below to either listen as a podcast or watch as a video.

Increase to Vento Bands for Injury to Feelings Awards

The Vento bands for awards for injury to feelings, which can be awarded in discrimination cases, are set to increase from 6 April. The amendment has been confirmed by The Presidents of the Employment Tribunals in England and Wales and in Scotland, and takes account of the RPI measure of inflation.

For claims presented on or after 6 April 2023, the bands will be as follows:

–           lower band – £1,100 to £11,200 (for less serious cases);

–           middle band – £11,200 to £33,700 (for cases that do not merit an award in the upper band); and

–           upper band – £33,700 to £56,200 (for the most serious cases).

The most exceptional cases will be capable of exceeding £56,200.

Compensation for injury to feelings is available in discrimination cases, and is separate from any financial loss suffered. Clear guidelines for the amount of compensation to be given for injured feelings was originally set out in the leading case of Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102, in which the Court of Appeal set out three bands of potential awards. These are now updated annually by Presidential guidance.

The notice can be found here.

If you have any questions about this, or any other employment law matter, please contact a member of the Employment team at employment@sintons.co.uk.

Dental bulletin – Top tips for dealing with Employee underperformance

Employee underperformance

  • Set the required standard

Aside from the most obvious requirements of a role, it is important to draw employees’ attention to the required standards at the outset of employment, and then, if it becomes necessary, for the purposes of managing underperformance. If performance targets apply, an employee should be made fully aware of these and of the possible consequences of not meeting them.

  • Use probationary periods effectively

Periods of probation (usually between 3 and 6 months) are an ideal time to assess employee suitability, since a practice’s exposure to claims during this period is limited.

If an employee does not perform to the required standard they may be dismissed before the probationary period expires. There is no requirement for an employee to be allowed to complete the full period (unless this is a specific term of their contract which would be unusual). Alternatively, at the end of the probationary period, you may confirm satisfactory completion of the probation.

It is important that you diarise the period of probation carefully to ensure the end date is noted and that a decision as to a satisfactory completion (or otherwise) is reached and communicated to an employee before this.

  • Deal with a problem at an early stage

Addressing performance issues as soon as they arise is important from a legal perspective and has a number of advantages for all involved. For example:

  • Employees are more likely to turn their performance around if concerns are highlighted early than if matters are left to fester.
  • Offering training and support may result in positive outcomes and is less time consuming and costly than a poor performance dismissal and having to recruit to replace a staff member.
  • Being able to demonstrate that an employee has been given support and the opportunity to improve will greatly improve the chances of effecting a fair dismissal if matters progress.

The practical reality of confronting an employee over perceived performance issues can seem daunting, leading to matters being left to drift, and addressing underperformance can also be seen as time consuming. However, regardless of the reasons for doing so, a failure to address performance issues upfront could have adverse consequences for a practice well beyond avoiding unfair dismissals.

Performance management is an important aspect of maintaining positive performance and moral, not least because it can be de-motivating for productive members of the workforce if the underperformance of colleagues is ignored. Furthermore, incompetence where strict heath and safety procedures are required can place an employee, as well as colleagues, at risk of breach of health and safety regulations. Performance issues which have not been identified or addressed may also present a significant stumbling block to you if you end up contemplating dismissal at a later date, for another potentially fair reason.

  • Avoid a heavy-handed approach

You should take care not to unduly criticise or humiliate poorly performing employees in front of colleagues. Reprimanding employees in front of their colleagues could leave them feeling humiliated and intimidated to such an extent that it amounts to a breach of trust and confidence, entitling them to resign and claim constructive unfair dismissal.

  • Consider whether performance is really the issue

When investigating performance problems, you may find other issues that need to be addressed instead of, or in addition to, the poor performance. These could be:

  • ill health or disability;
  • childcare or caring responsibilities;
  • poor management within a team;
  • harassment or bullying from a manager; and
  • excessive workload leading to the inability to deliver and stress.

You will need to seek to address these if they arise or create additional legal liabilities. If poor performance is caused or worsened by a disability, you will need to comply with the provisions of the Equality Act 2010. If a disability is identified any action taken will need to be a proportionate means of achieving a legitimate aim. Before reaching any decision, you will need to consider reasonable adjustments that could be taken to support an employee. These might include supportive steps such as additional training or adjustments to the actual capability procedure.

Topics of interest

Associate dentist and employment status

As practice owners will be aware, the HMRC practice and guidance on this issue is set to be withdrawn from 6 April this year. This is guidance which currently refers to the BDA approved associate agreement and states that where such agreements are used and followed, the income of an Associate Dentist will be treated as trading income rather than employment income.

Following 6 April, the status of new and ongoing Associate Dentist engagements is to be considered in line with the general guidance on determining employment status and HMRC’s Check Employment Status for Tax (“CEST”) tool.

This doesn’t mean that Associate Dentists will suddenly no longer be self-employed and in practice is likely to have little impact. However, it will be a useful reminder to consider the status of Associate Dentists and how you engage them. There are two things to consider when it comes to Associate Dentists, their status from an employment law perspective, and from a tax perspective. HMRC guidance relates to Associate Dentists’ status from a tax perspective. Their status from an employment law perspective is completely separate, and the issues are determined by different tribunals meaning they can be different.

Cases concerning the employment status of Associate Dentists are rare, which is probably because the position is generally accepted within the dental profession. However, their status was something considered last year in the case of Hughes v Rattan [2022] EWCA Civ 107 which gained a lot of attention. In this case the Court of Appeal considered whether a dental practice owner was liable for the treatment provided to a patient by one of the self-employed Associates Dentists engaged at the practice. Although the issues considered were in relation to non-delegable duties of care and vicarious liability, there are some useful points to take in the context of Associate Dentists’ employment status. These are from the Court of Appeal’s consideration of whether the Associate Dentists’ relationship with the practice owner could properly be described as being ‘akin’ (or ‘analogous’) to employment.

The Court of Appeal found that the relationship was not akin to employment, with the most important factors being that the Associate Dentists:

  • were free to work at the practice for as many or as few hours as they wished;
  • could work for other practices and business owners;
  • were free to choose which laboratories they used (and shared the cost of disbursements to laboratories);
  • were responsible for their own tax and national insurance (and were treated as independent contractors by HMRC);
  • shared the risk of bad debts;
  • were required to carry professional indemnity insurance and to indemnify the practice owner against claims in respect of their treatment of patients;
  • paid for their own professional clothing, development, and for equipment they wished to use which was not provided by the dental practice; and
  • were not subject to a disciplinary or grievance procedure.

In addition, the practice owner had no right to control the clinical judgments made, or manner of treatment conducted, by the dentists;

Factors that were seen to be indicators of a relationship akin to employment included that:

  • the practice owner determined practice opening hours, provided equipment and facilities;
  • the practice owner had a limited degree of control to ensure that NHS courses of treatment were completed within a reasonable period of time; and
  • the Associate Dentists were under a contractual duty to follow the practice’s policies and procedures, but there were none relevant to show control.

However, despite their existence, these indicators did not outweigh the factors pointing the other way.

This is useful information for practice owners to take into account when looking at the relationship they have with their Associate Dentists and how this works in practice. Are there factors which could mean they are actually engaged as workers or employees if the question was ever tested?

If you have any question in relation to these topics or employment law in general please contact Catherine Hope at catherine.hope@sintons.co.uk.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 42

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 42’ – with Catherine Hope & Angela Carver.

The team covered the following questions:

  • What are the factors to consider when thinking of moving to a 4-day week?
  • What should I do if I want to dismiss an employee who has less than 2 years’ service?
  • What are the risks of ceasing to sponsor an employee’s visa and dismissing them?

Please click below to either listen as a podcast or watch as a video.

Employment Law E-Bulletin – Issue 86

  • An Overview of 2022
  • 2023: What’s to come?

Overview of 2022

Employment Status 

Questions surrounding employment status remained prevalent throughout the year. The case of Nursing Midwifery Council v Somerville confirmed that a minimum level of ‘mutuality of obligation’ is not required to attain worker status; personal service is all that is required. Mutuality of obligation, which essentially means that there is an obligation on the employer to offer work and an obligation on the worker to accept that work, is an irreducible minimum of employee status only.

Despite employee status still being an area of uncertainty at times, the Government has decided, following the Good Work Plan, that there will be no legislative reform on employee status. Employers should therefore be mindful of the nature of the relationship between their business and their staff to ensure that they are assigned to the appropriate employment status.

Use of agency workers during industrial action

2022 has seen industrial action from railway workers, postal workers, NHS workers and many more. The Government sought to address this issue with the enactment of the Conduct of Employment Agencies in Employment Businesses (Amendment) Regulations 2022, which allows employers to fill staffing gaps caused by strike action with agency workers.

Assessing Disability

Cases in the Employment Tribunals demonstrated the importance of looking at the effects the condition has on the particular person, rather than the condition itself, when assessing if someone has a disability for the purposes of the Equality Act 2010. In Burke v Turning Point Scotland, long covid was held to be a disability within the meaning of s6 Equality Act 2010 because:

  1. It was a physical impairment which had an adverse effect on the employees ability to carry out normal day-to-day activities
  2. The effect was more than minor or trivial
  3. It was long term as it ‘could well’ last for a period of 1 months when viewed from the dismissal date.

This case illustrates the correct test to be applied when assessing if an employee is a disabled person.  This was also highlighted in Rooney v Leicester City Council where it was confirmed that the symptoms experienced during menopause can amount to a disability.

Gender Critical Beliefs: a Protected Characteristic?

Gender critical beliefs have been the subject of several judgments over the past year. In Mackereth v DWP, a doctor was not discriminated against when he was required to address transgender patients by their chosen pronouns, which he refused to do. However, in Forstater v CGD the claimant was successful in her direct discrimination claim when her employer refused to renew her contract due to her expressing her gender critical beliefs.

The key point to take from each of the cases is that gender critical beliefs can be a protected characteristic, however it depends how these views are expressed as to whether there can be a successful claim for discrimination.

Holiday Pay

The decision of Harpur Trust v Brazel left many employers wondering whether they were calculating their employees’ holiday pay correctly. This decision relates to part year workers, and it was held that the ‘calendar week method’ is the correct method to calculating holiday pay for these workers, as opposed to the 12.07% method.

In response to this decision, on 12 January 2023, the Government launched a consultation Calculating holiday entitlement for par-year and irregular hour workers. The Consultation states that, as a result of Harpur Trust, part-year workers are now entitled to a larger holiday entitlement than part-time workers who work the same total number of hours across the year. The Government is keen to address this disparity to ensure that holiday pay and entitlement received by workers is proportionate to the time they spend working. It will therefore be interesting to see the outcome of this consultation and how these issues will be addressed.

Retained EU Law (Revocation and Reform) Bill 2022/2023

A further significant development we saw in 2022 was the introduction of the Retained EU Law (Revocation and Reform) Bill (“the Bill”), which, as it currently stands, has the potential to significantly alter employment rights once it comes into force.

The proposed sunset date of 31 December 2023 means that all retained EU law will automatically be revoked, unless otherwise preserved by Parliament before this date. This includes areas that we deal with on a daily basis such as the Working Time Regulations 1998 and Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”).

The Bill gives significant power to the Government to amend the wording and effects of retained EU law, even if preserving it beyond the sunset date. It is therefore likely that there will be some notable changes in the sphere of employment law once the Bill is enacted.

What to expect in 2023

Retained EU Law Bill

The changes we can expect to see as a result of the Bill are largely unknown. Some predictions suggest that the ban on harmonisation of contractual terms following a TUPE transfer will be removed. It has also been suggested that we will see changes to the rules under the Working Time Regulations. The Bill does allow for retained EU law to be preserved in its entirety, meaning that there could be little to know change at all. However, it is difficult to see why the Government would be afforded the powers to re-write and repeal retained EU legislation if it had no intentions to use them… We therefore await with interest to see what is to come.

We may of course not see the effects of the Bill in 2023, if the sunset date is extended. The Bill provides that it may be extended to June 2026, and following criticism that such drastic changes cannot be made in such a short amount of time, it looks like this extension is likely to be utilised…

Agency workers during strike

As mentioned above, the Government attempted to address the issues caused by the effects of strike action with the Conduct of Employment Agencies in Employment Businesses (Amendment) Regulations 2022 (“Regulations”). However, these Regulations have not gone down well with the unions. UNISON and TUC have launched judicial review proceedings to challenge them on the basis that they breach article 11 of the European Convention on Human rights.

On 14 December 2022, the High Court granted permission for the judicial review. This means that a judge will make a decision as to whether the implementation of the Regulations was done fairly and legally. The review is expected to be heard in March 2023… will the Regulations be short lived?

Flexible Working

An extension of the right to request flexible working is also firmly on the cards for 2023. On 28 October 2022, the Government announced it would be supporting the Private Member’s Employment Relations (Flexible Working) Bill 2022-23. This will introduce a requirement for employers to consult with employees before they reject a formal request, reduce the time an employer has to make the decision from 3 months to 2, and will allow an employee to make 2 requests in any 12 month period, increasing from 1.

The Bill does not currently remove the condition of 26 weeks’ service to make a flexible working request. However, on 5 December 2022 the Government’s response to the flexible working consultation announced that secondary legislation will be introduced to make the right to request flexible working a day one right for employees. These announcements suggest that the changes to the flexible working regime are likely to happen sooner, rather than later.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 41

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 41’ – with Catherine Hope & Lucy Milnthorp.

The team covered the following questions:

  • Where a grievance is raised against an employee and that employee then raises a grievance that this is untrue, can you deal with the initial grievance first and come back to subsequent grievance, as they concern the same factual background?
  • Can workers under the age of 18 work overtime if they are already working 40 hours per week?
  • Government response to Women and Equalities Committee Menopause and the workplace report

Please click below to either listen as a podcast or watch as a video.

Employment Law E-Bulletin – Issue 85

  • Judicial Review
  • Changes to the Flexible Working Framework
  • New Rates for Statutory Payments from April 2023

Judicial Review of Regulations allowing Agency Workers to fill in for those on strike

This month, everyone is talking about strikes with various organisations across the country being affected by strike action.

In July 2022, the Conduct of Employment Businesses (Amendment) Regulations 2022 (“the Regulations”) came into force, which afforded Employers the ability to engage temporary workers when industrial action takes place. The Regulations have been challenged by a number of trade unions who argue that they undermine workers’ right to strike, labelling them ‘Anti-Worker Regulations.’

In September 2022, several trade unions and the TUC announced they would seek a judicial review of the new regulations on the basis that, the then Secretary of State for Business failed to consult unions under the Employment Agencies Act 1973 and the regulations violate Article 11 of the European Convention on Human Rights which details the right of Freedom of assembly and association.

On 14 December 2022, the High Court granted permission for a judicial review of the Regulations. This means the Court will be reviewing whether the decision to implement the Regulations was done lawfully and fairly. The decision of the Court will therefore determine whether the Regulations can remain in place.

The judicial review is expected to be heard in March and it will be interesting to see where this goes…

Changes to Flexible Working Framework

In November 2019, the Conservative Party published its manifesto and stated  the party would consult on making flexible working the default position, unless employers had good reason not to. The government launched the consultation in September 2021, which proposed making flexible working a day one right.

Following the 1,600+ responses, 83% of which were received from individuals, the government published its response on 5 December 2022, which confirmed that a number of the proposals would be taken forward. The changes that we can expect to see include:

  • The right to request flexible working will be come a day one right (currently only available after 26 weeks)
  • Employees will be allowed to make two requests – rather than one – in a 12-month period.
  • Employers’ time frame to respond to such requests will be reduced from three months to two months
  • There will also be a duty to discuss alternatives to the request if they intend to reject a request e.g., a request to work 7-3 may not be possible to accommodate, but 8-4 can be offered instead.

In light of this, the government have said that they will support the Employment Relations (Flexible Working) Bill, which is already moving swiftly through the House of Commons. It may therefore be the case that the changes to flexible working become law in the first half of 2023.

April 2023 increases to statutory payments

The Department for Work and Pensions (DWP) has published its proposed increases to several statutory benefits, including statutory sick pay, maternity, paternity, shared parental and adoption pay. The following rates will apply from April 2023:

  • The weekly rate of statutory sick pay will be £109.40.
  • The weekly rate of statutory maternity pay, and maternity allowance will be £172.48.
  • The weekly rate of statutory paternity pay will be £172.48.
  • The weekly rate of statutory shared parental pay will be £172.48.
  • The weekly rate of statutory adoption pay will be £172.48.

The new rates represents a 10.1% increases on the current rates. These will come into force on 10 April 2023.

Employment Law E-Bulletin – Issue 84

  • Update: Retained EU Law (Revocation and Reform) Bill 2022-23
  • Autumn Statement reveals new National Minimum Wage rates for April 2023
  • Expansions in flexible working to support staff through menopause?
  • FIFA World Cup – considerations for employers

Regulatory Impact Assessment for Retained EU Law Bill rated not fit for purpose

Further to last month’s bulletin, the Retained EU Law Bill has been in the news again. As it stands, the Bill will automatically repeal all retained EU law on the sunset date of 31 December 2023, unless there is specific legislation introduced to retain it.

A Bill does not automatically become law until it has passed through its first reading, second reading, the Committee stage, Report stage, and then its third reading. It must be approved by both the House of Commons and House of Lords before it proceeds to Royal Assent and becomes an Act of Parliament.

At the end of October 2022, the House of Commons approved the second reading of the Bill, which allowed it to proceed to the Committee stage. The Committee began its line-by-line consideration of the Bill on 22 November 2022.

Running sequentially to the House of Commons, the Regulatory Policy Committee published their formal opinion on the governments Regulatory Impact Assessment for the Bill; they rated it as ‘not fit for purpose.’ The main concern surrounded the lack of consideration of the impact the Bill will have on businesses across the UK, particularly small and microbusinesses.

The SNP are set to table at least 50 amendments, including a proposal to extend the sunset date for retained EU law to 2026. Labour MP Stella Creasy discussed the question of a ‘sunrise clause’ rather than a sunset clause. This would ensure that all retained EU law would remain, unless or until it is specifically amended or repealed.

It would seem that the Bill is being attacked from all angles and rightly so… It will be interesting to see how much of the Bill survives the legislative process without amendment.

2022 Autumn Statement – National Minimum Wage increases revealed

On 17 November 2022, the Autumn Statement was delivered by Jeremy Hunt, Chancellor of the Exchequer, which announced that the government has accepted the Low Pay Commission’s proposed increased to the National Living Wage and National Minimum Wage rates from April 2023.

The National Living Wage, which applies to workers aged 23 and over will increase to £10.42 per hour, which is expected to benefit over 2 million workers across the UK.

Expansions in flexible working to support staff through menopause?

We have started to see cases involving menopause as a disability make their way through the Tribunals in the last 2 years and it has become a widely discussed topic.

This month the NHS launching the first national guidance on menopause, which will allow staff who are experiencing the effects of menopause to work flexibly. This could involve lighter duties, flexible working patterns or working from home if it is possible to do so in their role.

The Chief Executive of NHS has called on other employers to implement similar guidance to end the stigma surrounding menopause and stop employees from ‘suffering in silence.’

The guidance has been intentionally designed to be transferable to other workplaces, and provides advice to managers on how they can create a more open and inclusive environment in order to staff to access support if they need it.

The NHS is one of the biggest employers for women in the country, with over 1 million female employees. Will more employers across the UK follow suit and adopt the NHS’s approach?

FIFA World Cup 2022

The World Cup kicked off on 20 November 2022 and will finish on 18 December 2022. As we enter the last 16, excitement is starting build and attendance in the office can start to dwindle.

Employers may want to consider a flexible approach during the World Cup in order to boost morale. This may extend to staff watching the match in the workplace, granting requests to work from home or allowing staff to work more flexibly around matches, for example allowing them to start earlier and finish earlier or taking a longer lunch break.

Employers are under no obligation to do any of these things; it is at their sole discretion and any flexibility needs to be reviewed in line with the needs of the business. We have however found from other sporting events that a degree of flexibility has reduced unauthorised absences, lateness and poor productivity.

It is important to note that any level of flexibility that is offered by an employer must be applied equally and employers should be mindful that some of their employees may support different countries in the World Cup or have zero interest.

Whatever is decided should be communicated clearly, to ensure staff know exactly where they stand. For example, an extended lunch break does not mean that the zero tolerance policy of alcohol in the workplace has ceased. Any staff who abuse any form of flexibility that is offered during the World Cup or otherwise, should be dealt with under Company policy.

Employment Focus | The return of the Christmas party…a refresher for employers

For many employers, this is the first Christmas where staff Christmas parties are taking place again since 2019. Whilst it’s good to be able to be back together, and these are great occasions and opportunities to celebrate and thank staff for their contributions, it remains important for employers to be mindful of the potential employment law issues that can arise from them. As is our usual custom, we set out some considerations for employers over the coming month.

Inclusion

Ensure that all of your staff are invited to social events, including any fixed term, part time or agency staff. In addition, be careful not to forget those who may be working from home, or away from the office on various types of family leave or long term sickness. Just because someone is medically unfit to carry out their role does not necessarily mean they are unable to attend a social event.

On the flipside it is important not to make attendance compulsory or pressurise staff to attend in any way. Some staff may not want to attend on religious or health grounds, and others may be prevented from doing so due to childcare commitments. Others may still feel uncomfortable attending large social events because of Covid and their own personal circumstances. Employers should also not assume that staff members will not want to attend for specific reasons; everyone should be given the choice.

If you have any staff who are disabled ensure that any venue chosen for an event is fully accessible for them, and make sure you are catering for staff who do not drink alcohol or eat certain foods.

Reminder of appropriate behaviour

A large consumption of alcohol and Christmas spirits can affect standards of conduct and lead to inappropriate behaviour. There is nothing wrong with employers sending a gentle reminder to staff of the expected standards of behaviour and what will be considered inappropriate.

Alcohol can also fuel sexual advances that could constitute harassment. It might therefore be useful to remind staff of policies concerning discrimination and bullying and harassment. Under the Equality Act 2010 harassment means any unwanted behaviour that has the purpose or effect of making someone feel intimidated, degraded, humiliated or offended, and can be a single incident. It is not necessarily always obvious or apparent to others and can easily happen without employers being aware of it.

It is important to note that the Christmas party is an extension of the workplace, even if it is not held in the office, and that normal discipline will still therefore apply. Employers should also be mindful that they can be held vicariously liable for the actions of their employees, and depending on the facts, post-Christmas party drinks may not be outside of the scope of employment for these purposes. As a result, it might be prudent for employers to remind staff that any after party drinks are not an organised work event.

If any complaints do arise after the event, these should then be investigated swiftly in the usual way.

Social media

There is often gossip following the event and this is where the use of social media can very easily end up causing problems. Moments can be caught and shared and, before the night is over, Facebook and Twitter may already be full of content that could cause a headache.

If employers have social media policies in place, it would be timely to remind staff of these. Employees should be reminded that they need to think of their own personal and professional reputation, as well as that of their employer, especially if there is anything linking them to their employer on their personal social media pages.

Alcohol

The Christmas parties can be alcohol fuelled affairs but employers should be mindful that some staff may not be drinking alcohol for a number of reasons. It is therefore important that there are always plenty of non-alcoholic options available. Employers should also be mindful of any staff under the age of 18.

It is also a good option to ensure that there is always a wide variety of food and soft drinks available in order to help limit excessive drinking. Ending events prior to public transport services ending for the day can also help reduce the risk of staff drinking and driving.

Health and safety

Don’t forget health and safety considerations, especially where a party is being held in your offices. An assessment of the potential risks will need to be carried out, and steps taken to protect against any potential hazards. Employers should appoint an appropriate person to oversee health and safety during a Christmas party, who can ensure things run as planned, is a point of contact for staff and has the necessary authority to take action if required.

Absences, sickness and tardiness

If the day after the Christmas party is a normal working day there is always the potential for the classic ‘sickie’ to be pulled for those who may have over-indulged…If staff don’t turn up for work and, following investigation, there is no satisfactory explanation for their absence, this can be treated as unauthorised absence in the usual way and dealt with under employers’ disciplinary procedures. However, as always, an investigation will still be required to ensure that staff who are genuinely ill are not penalised. In addition, if staff attend for work late without good explanation, employers may have the ability to deduct wages if they have the right to do so in their employment contracts.

One way to avoid any issue would be to try and arrange a party to take place ahead of a non-working day if possible, although it is important to be mindful of the times of days of religious observance such as the Sabbath.

Whilst taking all of the above into account, it is important not to lose sight of the fact that the purpose of the Christmas party is to have fun. We are in no way trying to make the Christmas party a dull and boring affair; we just want to make employers aware of what steps can be taken to try and ensure everyone enjoys the evening for what it is. On that note, enjoy the festivities and we will see you in the New Year!

If you have any questions in connection with the content of this article or employment law in general, please contact Catherine Hope at catherine.hope@sintons.co.uk or 0191 226 3801 or another member of the employment team by clicking here.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 39

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 39’ – with Keith Land and Lucy Milnthorp.

The team covered the following questions:

  • What is the position on costs in the Employment Tribunal?
  • Can an employer make a deduction from an employee’s wage where this reduces earnings beneath NMW?
  • Is an employee entitled to a bonus whilst on maternity leave?

Please click below to either listen as a podcast or watch as a video.

Employment Law Annual Update 2022

Sintons’ Employment team, in partnership with Michael Page, recently hosted their employment law update seminar, which reviewed the last 12 months and what is to come.

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

‘Standout’ employment team hailed for capability

The “standout” employment team at Sintons has won praise from Chambers and Partners 2023 for its wide-ranging expertise and high standards of client service.

The team advises clients in both the public and private sector and is highlighted for its capability in the full range of employment work including executive terminations, mass redundancies and restructuring issues, as well as discrimination claims, disciplinary proceedings and advice on employment contracts.

Chambers also hails the broad range of sectors in which it operates, with clients in education and healthcare, including colleges, universities and hospital trusts, as well as from the construction, energy and leisure sectors.

“There is no matter that Sintons can’t handle to an extremely high level…support and advice was technically excellent and delivered in a compassionate and helpful way,” quotes Chambers.

The firm is also praised for its programme of training and seminars, which regularly engage hundreds of business and HR professionals from across the region.

Two of its key lawyers – head of employment Keith Land and senior associate Ailsa Hobson – are also singled out for praise.

Keith, regularly named as one of the leading employment lawyers in the North of England, is praised for delivering an “exemplary service” to clients. Ailsa, named as an associate to watch, wins praise for her “knowledge of employment law and understanding of business needs”.

The findings of Chambers come only weeks after the publication of Legal 500 2023, which similarly reported that Sintons’ employment teams was a stand-out name in the North of England, with a deep commitment to delivering legal and client service excellence.

Christopher Welch, managing partner of Sintons, says: “Our employment capability is well known, with businesses and organisations across the North appointing Sintons as their trusted advisor. We pride ourselves on our hard-earned reputation for delivering outstanding legal and advice and client service.

“We are very pleased to see this recognised by Chambers and Partners, which recognises the commitment we have to consistently delivering the highest standards. Coming so soon after the publication of Legal 500 2023, which similarly highlighted our efforts, it is very pleasing to have further independent recognition of the work we are doing and outstanding job our employment team are doing for their clients.”

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 38

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 38’ – with Keith Land, Max Winthrop and Lucy Milnthorp.

The team covered the following questions:

  • Can I have a selection pool of 1 person in a redundancy exercise?
  • How should right to work checks be carried out?
  • Give a choice, would you use an ACAS COT3 or a Settlement Agreement to settle an employment related dispute?

Please click below to either listen as a podcast or watch as a video.

Employment Law E-Bulletin – Issue 83

  • Retained EU Law (Revocation and Reform) Bill 2022/23
  • “Slashing Red Tape”
  • Changes to Right to Work Checks

It is safe to say there has been some significant turning points this month, and Employment Law has not been immune.

Retained EU Law (Revocation and Reform) Bill 2022/23

On 22 September 2022, the Government introduced the Retained EU Law (Revocation and Reform) Bill 2022-23; this has also been referred to as the “Brexit Freedoms Bill”.

At present, there are over 2,400 pieces of retained EU law; this includes areas we deal with on a daily basis such as the Working Time Regulations. When the Bill goes through (which it undoubtedly will) all EU law will be automatically revoked on 31 December 2023, unless otherwise restated into UK domestic law. The Bill does provide that this date can be extended to 23 June 2026 (at the latest) for complex areas which require more time.

Currently, if there is a conflict between UK and EU law, EU law takes priority. This will stop after 31 December 2023 (or 23 June 2026 if the ability to extend is utilised).

What happens next?

We await the second reading of the Bill. As it stands, the Bill will give UK ministers and devolved authorities significant discretion to restate, revoke or replace certain laws. We may find that these powers are watered down as it progresses through the legislative process.

It is entirely speculative at the moment, but there are some predictions as to what might happen in the sphere of Employment Law once the Bill is enacted:

  • Removal of the ban on harmonisation following a TUPE transfer – TUPE is very likely to remain in UK law. However, the ability to re-word EU retained laws may result in the (very welcomed) removal of the ban on altering terms of employment post-transfer. I cannot see collective consultation disappearing and, if suggested, it would be interesting to be a fly on the wall if Unions are told of such change.
  • Reverting back to the original UK position on holidays – As it stands, up to 4 weeks holiday can be carried over due to sickness; this could change.
  • Introduction of a cap on discrimination claims – Discrimination compensation remains uncapped – this is largely due to constraints from EU law. The introduction of a cap may operate in a similar manner to the unfair dismissal basic award (a week’s pay is capped at £571 and a maximum of 12 weeks’ pay can be awarded.) This may address many employers’ concerns that discrimination legislation has “gone too far,” but would it amount to a step backward in the protections that have been afforded to employees?
  • Revocation of the 48 hour working week – largely ignored already, will this remain?
  • Agency Worker Regulations 2010 unlikely to be restated – I am sure this would be cause for celebration for many… This would alleviate various administrative burdens and impracticalities for employers who rely on agency workers.

It will be interesting to see what happens if this process is extended into June 2026, given that there will be a general election in the meantime.

A massive change to the legislative landscape, internal turmoil with the current government and a general election… what could go wrong?

“Slashing Red Tape”

Former Prime Minister, Liz Truss, announced that more businesses would be categorised as small businesses, and therefore exempt from certain regulations, such as gender pay gap reporting and executive pay ratios.

Previously, businesses with less than 50 employees were categorised as small. This has now been extended to apply to businesses with less than 500 employees, which is a substantial increase.

This amendment came into force on 3 October 2022 and will apply to all new regulations under development, as well as those under current and future review – including those under review following the Retained EU Law (Revocation and Reform) Bill.

Changes to Right to Work Checks

Right to work checks need to be carried out on all prospective employees, whatever their nationality before employment commences. Employers who have conducted and recorded compliant right to work checks have a statutory excuse which is a defence to a civil penalty.

During Covid-19, adjustments were made to right to work checks which made it permissible to check identification documents digitally, and from 6 April 2022 the ability to check British and Irish nationals’ right to work using Identification Validation Technology.

From 1 October 2022, there are three methods which may be used, depending on the individual’s immigration status and the documents they hold:

  1. Online right to work check via the Home Office

This is mandatory for eVisa’s, Biometric Residence Permits, Biometric Residence Cards and Frontier Worker Permits. A manual check of these documents is not compliant. Employers must request a  share code from the prospective employee and use this to check their right to work using the online service. This will tell the employer if they are permitted to carry out the work being offered and whether there is a time limit on their right to work.

  1. A digital check using an Identity Service Provider (“IDSP”)

Any individual who does not fall within the scope of an online check, (British and Irish passport holders) employers can carry out checks either manually, or using an IDSP. Either method is acceptable. When using an IDSP, employers will be ultimately responsible for ensuring the IDSP is properly certified and that the checks have been carried out correctly.

  1. Manual check

A manual right to work check involves obtaining the individual’s original identification documents and meeting them to check the validity of the documents. Employers should record copies of the qualifying documents and keep a record of the date of the check.

Next steps for employers:

  • Employers should ensure that staff who undertake right to work checks are up to speed and understand the new requirements and when each method must be used. This may involve training the employees who hold this responsibility.
  • Employers should evaluate their workforce and staff turnover to establish the best process for carrying out right to work checks. For example, using an IDSP may incur a significant cost, but may be the preferred method regardless in conducting checks efficiently.

Employment Law Annual Update 2022

Employment specialists at Sintons will again be offering their advice and insight into the current situation and impending changes at an annual seminar which attracts people from across the region and beyond.

The Employment Law Annual Update is a hugely popular event with professionals working in employment and HR positions in businesses from the private, public and third sector, for its analysis of the past 12 months and current situation while also looking ahead.

Sintons, together with Michael Page, will again share their expertise with attendees at the event on Thursday, October 20.

The specialist employment team at Sintons is the long-standing advisor to businesses and organisations across the North East and wider UK, with its expertise and clarity helping them to negotiate challenges within their own ventures as well as the wider economy.

The team, led by Keith Land, rose to national prominence during the COVID-19 pandemic, as businesses fought to keep abreast of and understand the continually changing guidance and advice around matters including furlough leave and home working, as well as being forced into restructures and redundancies as the impact of lockdown continued.

Now, in this free event held in Newcastle, Sintons’ experts will again support with a range of advice and insight which will help organisations to successfully negotiate the current landscape and be prepared for what could be in store.

“Our annual update is always a very popular event, with people coming from right across the region and well beyond. We are known for our expertise and ability to give clear, direct advice around whatever employment situations businesses face, and we hope our seminar will help to give new levels of support,” says Keith, regularly hailed as one of the leading lawyers in the North by the independent Legal 500 and Chambers publications.

“Businesses have been through huge amounts of turmoil and uncertainty over the past two years, and we are proud to have been by their sides during the most challenging times many will have ever faced. We will continue to be on-hand and to deliver insight and guidance in whatever forms possible – and this event provides another timely opportunity to do that.

“We look forward to welcoming regular and new attendees to the event and to exploring the current and future employment landscape.”

* The Employment Law Annual Update will be held on Thursday, October 20 from 8am to 10am at the Vertu Motors Arena, Scotswood Road, Newcastle, NE4 7AF. To sign up, contact Peter.jennings@sintons.co.uk.

Court win for man fired for not keeping webcam on

A telemarketer who was fired after refusing to keep his webcam on while working had his rights breached, a Dutch court has ruled.

The employee of US-based IT company Chetu was awarded approximately 75,000 euro (£65,700) by the court.

In August, the man, in the Netherlands, was told to share his screen and leave his camera on while working.

After he declined, he was fired for “refusal to work” and “insubordination”.

Chetu did not provide a statement to the court, nor did the company appear at the court hearing, the judgement says.

The court ruled on the case in September, but its findings were published this month and reported by the Netherlands Times.

The BBC has approached Florida-based Chetu, which has a branch in the Netherlands, for comment.

Increased monitoring

Earlier this year, the TUC, which represents unions in England and Wales, warned use of workplace surveillance tech – including the use of AI to monitor workers – had taken off during the pandemic and was “spiralling out of control”.

Methods included monitoring emails and files, webcams on work computers, tracking when and how much a worker is typing, calls made and movements made by the worker, through use of CCTV and trackable devices.

It called for stronger regulation to protect workers.

Max Winthrop, a partner at law firm Sintons LLP, said surveillance of employees had increased massively as the necessary tech became more accessible and as employers sought to keep tabs on employees working from home.

But he said there was not a simple answer to whether any particular monitoring infringed on an employee’s privacy in the UK.

“It depends. A legitimate reason to monitor, such as the prevention of theft, or physical harm to employees, is likely to be considered favourably by a court or tribunal,” said Mr Winthrop, a member of the Law Society’s Employment Law Committee.

“Merely imposing an intrusive monitoring regime for no good reason, especially if monitoring takes place in areas or the workspace where employees could have a reasonable expectation of privacy, is not”.

‘I don’t feel comfortable’

The employee in the case in the Netherlands had been working for Chetu since 2019, when in August he was asked to participate in a “Corrective Action Program (“CAP”) – Virtual Classroom” during which his webcam was to be kept on.

According to the court record the employee refused, saying: “I don’t feel comfortable being monitored for nine hours a day by a camera. This is an invasion of my privacy and makes me feel really uncomfortable. That is the reason why my camera is not on. You can already monitor all activities on my laptop and I am sharing my screen.”

In response to the employee’s objections, Chetu argued that this was no different from an employee being observed in an office environment.

But the court disagreed, citing a European Court of Human Rights ruling which, it said, stated that, “video surveillance of an employee in the workplace, be it covert or not, must be considered as a considerable intrusion into the employee’s private life”.

The court found that the there was no sufficient justification for the monitoring by Chetu, and it had therefore violated the employee’s privacy rights.

Featured on BBC News on 12th October 2022.

Leading lawyer helps England to a third place finish in the Masters Hockey World Cup 2022

A leading lawyer from the North East has helped England to a third place finish in the Masters Hockey World Cup 2022.

Keith Land played throughout the over 45s tournament, held in Cape Town, South Africa, with England beating the hosts 4-2 in a third-place play off.

England lost their semi-final 1-0 to the Netherlands, who then went on to win the World Cup by beating Germany 3-0.

Highlights from the tournament for England included a 12-0 win against Zimbabwe and 4-0 win against the USA in the group stages.

Keith, head of employment at Sintons, was representing England again at World Cup level, having previously played in the 2017 indoor Masters World Cup. Most recently, he represented his country in England’s victory in the Home Nations tournament in June.

The impressive England performance in the World Cup 2022 marks another significant achievement for Keith in hockey, which he has played since he was 12 years old, following the lead of his father who represented England in the sport at the 1964 Olympic Games in Tokyo.

Keith also represents Morpeth Hockey Club and – in addition to his work as one of the leading employment lawyers in the North of England, as again confirmed by Legal 500 2023 – Keith travels the country to train with his England teammates, including at the national sports centre Bisham Abbey.

“We’re delighted with our third place finish, to finish third in the World Cup is really fantastic. The team played so well, and while it was disappointing to lose in the semi final, we did lose to the eventual winners and I was very happy with how we did overall. It was a fantastic experience and one I certainly won’t forget,” says Keith.

Christopher Welch, managing partner of Sintons, adds: “To represent England is an enormous achievement, and to play in a team that finishes third in the World Cup is phenomenal.

“Keith combines his commitment to hockey and his country with his outstanding work as a leading employment lawyer, advising businesses and organisations nationally and being the trusted advisor to clients across the country.

“I know his clients will share the pride in Keith’s achievements that we have as his colleagues, and we all send our biggest congratulations to him.”

‘Personal touch’ helps employment team to excel, says Legal 500

The employment team at Sintons have again won praise from Legal 500 for its wide ranging specialism, first-rate legal advice and focus on client service.

The team works with both public and private sector clients across the North of England, supporting with both contentious and non-contentious matters.

In Legal 500 2023, it is again named as a key employment advisor in the North, with its wide-ranging sector expertise – which includes healthcare, charities and construction – highlighted as being a major strength.

The team are found to “be incredibly approachable, friendly and professional. They provide the personal touch which makes all the difference,” quotes Legal 500.

Head of department Keith Land is again named as one of the leading individuals in the North, and wins praise for his “responsive and attentive” approach.

One testimonial quoted by Legal 500 states: “Over the years I have approached Keith for all kinds of employment advice and issues. As soon as I involve Keith in an issue, he puts me at ease and helps to reduce the stress of a situation.

“I have complete confidence in him and know that he will provide pragmatic, easy to understand advice.”

Senior associate Ailsa Hobson, praised for the broad range of areas in which she advises, is again named as a rising star. Associates Angela Carver and Catherine Hope are also named as key figures in the team.

Christopher Welch, managing partner of Sintons, says: “Our employment capability is well known, with businesses and organisations across the North appointing Sintons as their trusted advisor to handle their employment matters. Many of our clients have been with us for years, which is testament in itself to our consistent delivery of the highest standards of legal and client service.

“Legal 500 2023 is yet more independent endorsement of that, and the outstanding service we offer to clients. Our growing team has significant capability and a deep committed to supporting our clients through whatever challenges they may face – that has never been more evident than during the COVID-19 pandemic, when our employment team dedicated themselves to supporting new and existing clients to negotiate the ever-changing landscape, helping to give clarity for businesses at a time that was hard to find.

“As a firm which recognises its success is down to its people, we are very pleased to see several key individuals from our employment team given recognition. It is through their efforts that Sintons has the outstanding reputation it does, and this acknowledgement by Legal 500 is very well deserved.”

Sintons appoints new employment partner

Law firm Sintons has added a nationally-known employment partner to its growing team.

Max Winthrop is a prominent employment lawyer with significant experience in advising clients nationally on a wide range of issues. As former chair and current member of the Law Society’s Employment Law Committee, he is also actively involved in major reforms and developments of employment law and the tribunal system, including giving evidence to Parliamentary committees.

As a lawyer, Max is highly rated for his heavyweight litigation work in tribunals and courts, with multi-faceted cases often involving a range of complex issues, including discrimination, whistleblowing and jurisdictional conflicts.

Clients range from PLCs and major businesses and organisations through to SMEs, senior employees and office holders.

Max – who moves from the partnership of another North East firm – joins Sintons at a time of significant development for the firm, with key appointments being made in a number of practice areas to strengthen its offering even further.

It also follows the release of Legal 500 2023, which confirmed Sintons as a leading name in employment law nationally, and praised the combination of legal and client service excellence it delivers. Head of practice Keith Land was again named as a leading lawyer in the North of England.

“Sintons’ reputation for its employment work in the marketplace is first-rate and the team is known for its expertise and commitment to clients,” says Max.

“I am very pleased to join and work alongside Keith and our colleagues to work towards building our offering even further. This is clearly a time of great progress for Sintons as a firm and this feels like an exciting time to move here.”

Keith Land, head of employment says: “Our employment team continues to build a national client base and I am very proud of the work our team has done so far in creating our first-rate reputation for legal and client service excellence. Yet again, that has also been endorsed independently by Legal 500.

“We are delighted to appoint Max, a lawyer of great calibre and significant experience, at what is a really important time in our development. We are growing strongly and the addition of Max to our team can only support that positive progress.”

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 37

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 37’ – 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.

Our session today covers the following questions:

  • Does an employee have a statutory right to be accompanied to a probationary review meeting if they will potentially be dismissed at the end of it?
  • Impact of Harpur Trust v Brazel
  • Retained EU Law (Revocation and Reform) Bill 2022-23

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

Are significant changes to post-Brexit employment law on the horizon? Government publishes the Retained EU Law (Revocation and Reform) Bill 2022-23

Are significant changes to post-Brexit employment law on the horizon? Government publishes the Retained EU Law (Revocation and Reform) Bill 2022-23

Following Brexit there is currently a pot of ‘retained EU law’, consisting of legislation originally derived from the EU which was preserved by the European Union (Withdrawal) Act 2018 at the end of the Brexit transition period.

The Government has now announced that “the time is right to end the special status of retained EU law in the UK statute book” and has set out its plan to bring forward the Retained EU Law (Revocation and Reform) Bill 2022-23 (the “Bill”). The Bill had its first reading in the House of Commons on 22 September 2022 and will enable the Government, via Parliament, to amend, repeal and replace certain retained EU law, meaning there could be significant changes to employment rights and obligations. Here is what the Bill provides for in brief:

  • ‘Sunsetting’ of retained EU law

The Bill will ‘sunset’ large parts of EU retained law, meaning that this will expire on 31 December 2023, unless otherwise preserved. This revocation date may be extended to 23 June 2026 at the latest.  Unless equivalent laws are put in place, this means certain EU retained law would be scrapped automatically at this point.

Under the Bill the Government could:

  • Amend and replace – it will be easier for Government ministers to amend and replace retained EU law using powers to make secondary legislation.
  • Restate and reproduce – the Bill provides the power to restate any secondary retained EU law. This will preserve the effects of current laws whilst removing it from being categorised as retained EU law and, in turn, removing associated EU legal effects and interpretive features.
  • Revoke – the Bill revokes EU-derived subordinate legislation (i.e. UK statutory instruments introduced to implement EU law) and retained EU direct legislation at the end of 2023.
  • Ending of EU law supremacy

EU retained law currently has priority over conflicting UK law passed before the end of the Brexit transition period. The Bill reverses this order, giving domestic law priority over retained EU law.

  • Abolition of general principles of EU law

The Bill also removes the effects of the general principles of EU law from the end of 2023. For example, UK courts are currently required to decide any question about the validity, meaning or effect of retained EU law (so far as that law remains unmodified by UK legislation, and so far as relevant to it) in accordance with any retained case law and any retained general principles of EU law (although pre-Brexit EU case law can be overruled by the Court of Appeal or the Supreme Court). The Bill would repeal this among other effects.

  • Renaming of Retained EU law as ‘assimilated law’

The Bill provides that retained EU law is to be known as ‘assimilated law’ after the end of 2023.

What does this mean?

In its current form, the Bill will result in significant changes to the current EU legislation in force in the UK; both in its status and operation.

Certain EU-derived secondary legislation would be caught by the sunset clause if not otherwise preserved. This would include regulations such as the Working Time Regulations 1998 which cover holiday entitlement, the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, and TUPE (insofar as this implements EU law), amongst others.

We await a date for the Bill’s second reading and will have to see what, if any, amendments are made before it is passed. It will be interesting to see how Parliament uses the powers afforded by the Bill and what EU retained law will be restated, revoked or replaced. It looks like there could be some significant changes to come. It could restate everything, but why prepare a Bill that provides for all options if there is no intention of using them..?

We will keep you updated and will be looking at this more closely at our Employment Law Update on 20 October.

If you have any questions related to this topic, please contact a member of the employment team.

Leading lawyer to represent England in the 2022 World Masters Hockey World Cup

A leading employment lawyer from the North East will be representing England in the 2022 World Masters Hockey World Cup.

Keith Land is a longstanding member of the England squad and has appeared on a number of occasions, including in the 2017 indoor Masters World Cup and most recently in England’s victory in the Home Nations tournament in June.

Now, Keith – head of employment at Sintons – has been selected for England over-45s to compete in the World Cup in Cape Town, South Africa.

The tournament begins on October 1, with the first fixture for England’s over-45s against Malaysia that day, with further group games against South Africa, USA, France and Zimbabwe.

The final is on October 10, with matches throughout the World Cup livestreamed online to a global audience.

His latest selection for England marks another significant achievement for Keith in hockey, which he has played since he was 12 years old, inspired by his father who represented England in hockey at the 1964 Olympic Games in Tokyo.

While Keith is regularly named as one of the leading employment lawyers in the North of England, away from his professional commitments, he travels the country to train with his England teammates, including at the national sports centre Bisham Abbey.

He also represents Morpeth Hockey Club and previously played in the National Premier League at Sheffield and Doncaster for 15 years.

“It is a real honour to be selected for England again. It is every player’s ambition to be part of a World Cup and to be part of the squad to go to South Africa is fantastic,” says Keith.

“I can’t wait to get started and undoubtedly this will be an unforgettable experience. I’m really grateful for the support I have had from family, friends, teammates, and of course my Sintons colleagues who are sparing me for two weeks while we bid to win the World Cup.”

Christopher Welch, managing partner at Sintons, adds: “We are very proud of Keith and the fact he has again been selected to represent his country – playing at the World Cup doesn’t get much bigger and it’s a phenomenal achievement to be part of that.

“While many clients know about Keith’s capabilities in hockey, some probably don’t, and will learn about his talents away from work for the first time, and I’m sure they will be as impressed as we all are at Sintons.

“It is an achievement indeed how Keith continues to excel in his work as a top-rated employment lawyer, acting for leading businesses and organisations nationally, while also dedicating time and effort to hockey and competing in top-level international Masters sport.

“We of course wish him and the England over-45s team every success in South Africa and will hope very much to be calling him a ‘World Cup winner’ within the coming weeks!”

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 36

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 36’ – 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:

  • How do you deal with a disciplinary matter whilst an employee is on maternity leave?
  • How do I handle a complaint from a female member of staff about inappropriate behaviours from male staff?
  • Can you recruit after a redundancy and, if so, when?

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 82

  • Changes to ‘Fit Notes’ – new regulations allow an increase in medical professionals to sign off such forms
  • Rent plus UK Ltd v Coulson [2022] EAT 81 – 25% uplift applied for failure to follow the Acas Code in sham redundancy
  • Harper Trust v Brazel [2022] UKSC 21 – no more 12.07% pro-rated holiday pay for casual workers

Changes to ‘Fit notes’ – new regulations allow more medical professionals to sign off

Changes to regulations now allow further healthcare professionals to sign individuals off as unfit to work for the purposes of Statutory Sick Pay (“SSP”) and social security claims.  As of 1 July, the Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) (No.2) Regulations 2022 amended the Social Security (Medical Evidence) Regulations 1976 and the Statutory Sick Pay (Medical Evidence) Regulations 1985.

This change allows registered nurses, occupational therapists, pharmacists, and physiotherapists to sign ‘fit notes’ as opposed to just GPs. Although this change has been introduced to try and reduce the workload of GPs, it could mean employers see an increase in fit notes now that the range of medical professions allowed to sign such notes has increased.

Rentplus UK Ltd v Coulson [2022] EAT 81 – 25% uplift applied for failure to follow the Acas Code in sham redundancy.

Ms Coulson (the “Claimant”) was employed by Rentplus UK Ltd (“Rentplus”) as Director of Partnerships, and was a member of the leadership team from 2015.  A decision was taken to dismiss her in March 2017, something she was unaware of at the time. Following a decision by Rentplus to commence a reorganisation, the Claimant attended consultation meetings in April and May 2018. She submitted a grievance in June 2018 claiming the assessment of her role as redundant was inaccurate and that she had been marginalised by Rentplus since late 2017. Her grievance, and appeal against the grievance, were dismissed and her employment was terminated in August 2018.

The Claimant brought claims for unfair dismissal and direct sex discrimination. The Employment Tribunal (the “ET”) agreed with the Claimant that her dismissal was unfair and that the consultation meetings were a sham as the decision to dismiss had been taken long before. They noted the decision to dismiss the Claimant had been taken some time before and that there were facts from which it could infer sex discrimination.

Where an employer has failed to follow the Acas Code of Practice on Disciplinary and Grievance Procedures (the “Code”) and the tribunal considers that the failure was unreasonable, the tribunal may increase the amount of compensation that would otherwise have been payable to an employee by up to 25%, if it considers it just and equitable do so. This is provided for by section 207A, Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”).

The ET awarded a 25% uplift for failure to follow the Code due to the claim succeeding and the failures being so “egregious”. Rentplus appealed, claiming that the ET had erred in concluding hat the Code applied where Rentplus’ reason for dismissal was redundancy even though the ET held the reason was sex discrimination, and that the failings by Rentplus, against which the uplift was being made, should have been identified by the ET with reference to the specific parts of the Code that had been breached.

The Employent Appeal Tribunal dismissed the appeal and held that an employer cannot avoid the application of the Code by pretending a dismissal that results from misconduct or poor performance is for another reason, such as redundancy.

It provided guidance for tribunals when considering whether to apply an Acas uplift. This was in the form of the following series of questions taken from 207A of TULRCA:

  • Is the claim one which raises a matter to which the Acas Code applies?
  • Has there been a failure to comply with the Acas Code in relation to that matter?
  • Was the failure to comply with the Acas Code unreasonable?
  • Is it just and equitable to award an uplift because of the failure to comply with the Acas Code

and, if so, by what percentage, up to 25%?

Points to note:

This case is a useful reminder that the Code can apply even where dismissals are not so obviously related to disciplinary matters or grievances. In this case the tribunal looked behind the redundancy reason for dismissal put forward by Rentplus.

Employers should carefully consider the reason for any dismissal and ensure they have evidence which supports this. Consideration should also be given as to whether the Code applies in the specific situations they are dealing with as a failure to follow this could result in a 25% uplift to compensation.

Harper Trust v Brazel [2022] UKSC 21 – no more 12.07% pro-rated holiday pay for casual workers

Ms Brazel (the “Claimant”) was employed as a music teacher in a school run by the Harpur Trust (the “Trust”), and she worked irregular hours over the academic year. She was employed on a permanent contract under which she was entitled to 5.6 weeks’ paid holiday.

Up until September 2011, the Trust had calculated the Claimant’s 5.6-week holiday entitlement by calculating her average week’s pay in accordance with section 224 of the Employment Rights Act 1996 (the “Act”) and multiplying this by 5.6. This involved taking the Claimant’s average weekly pay (which at the time was the average week’s pay in the period of 12 weeks preceding the date of leave) and ignored any weeks in which she did not receive any pay due to no hours being worked. This was known as the ‘Calendar Week’ method.

In September 2011, the Trust changed the way it calculated the Claimant’s holiday pay. Rather than identifying her average week’s pay, it identified the number of hours worked in the 12 weeks preceding the date of leave, even if this included vacant weeks without work and pay. From the hours worked, 12.07% of those hours were then multiplied against the Claimant’s hourly rate (£29.50) to arrive at her holiday pay. 12.07% is essentially the proportion that 5.6 weeks of annual leave bears to a total working year of 46.4 weeks. This is known as the ‘Percentage Method’ and resulted in a decrease in the Claimant’s holiday pay.

In 2017 the Claimant brought a claim for unlawful deduction of her wages. Although her claims were dismissed in the first instance by the Employment Tribunal, she appealed to the Employment Appeal Tribunal which found in her favour. The Court of Appeal reached a similar conclusion, confirming that the statutory entitlement to holiday pay required the use of the Calendar Week method, even if this did produce absurd results. The Trust appealed to the Supreme Court.

The Supreme Court dismissed the Trust’s appeal and confirmed the position given by the Court of Appeal. The Trust argued that the Percentage Method should have been applied to enable holiday pay to reflect the amount of work performed by the Claimant. It stated that the Working Time Regulations 1998 and the Act require the Calendar Week method to be used to identify a week’s pay to calculate holiday pay, even if this favoured workers who worked irregular hours.

Acknowledging that there could be ‘absurd’ results, the Supreme Court dismissed the appeal for substantially the same reasons as the Court of Appeal.

Points to note:

The Percentage Method has been clearly rejected by the Supreme Court and should therefore no longer be used by employers.

Although this judgement applies to all workers, practically it effects workers working irregular hours and who work part of the year. It may have far reaching implications for employers who engage such staff as it won’t just apply to the education sector. If someone is employed for the whole of the year, but only works for part of it, they are entitled to 5.6 weeks’ holiday. Employers should use the Calendar Week method (as set out above, albeit with a 52 week reference period now) to calculate holiday pay for workers who work in this way. In this calculation weeks where no payment has been made to a worker must be disregarded, and earlier weeks taken into account in order to cover 52 weeks.

Ensuring workers, who are entitled to receive 5.6 weeks’ paid holiday, do not receive less than their entitlement will be important to avoid similar claims as seen in this case. It will be prudent for employers to review their holiday pay calculation practices to ensure against any potential underpayments. Employers may also consider if in certain circumstances, fixed term contracts may be more appropriate where only small amounts of work are to be carried out. However, it is important to be aware that employees who have been continuously employed for four years or more on a series of fixed term contracts will be automatically deemed to be permanent employees unless the continued use of a fixed-term contract can be objectively justified. It is also important to be aware that a gap between contracts will not necessarily break continuity of 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.