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

Samuel Scott, Solicitor from the Employment department at Sintons, recently recorded a podcast discussing ‘Reduction in time periods for the disclosure of criminal convictions’.

Please click on the play button below to listen.

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:

The previous rehabilitation periods were:

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 15^th 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:

• Licensing
• Personal injury
• Contentious trusts and probate
• Healthcare

Its leading individuals have been named as:

• Angus Ashman, partner in dispute resolution
• Phil Davison, head of general personal injury
• Mark Dobbin, head of commercial property
• Adrian Dye, head of corporate
• Keith Land, head of employment
• Amanda McCabe, head of NHS healthcare
• Andrew McGowan, head of neurotrauma
• Jane Meikle, head of banking & finance
• Paul Nickalls, head of personal and family
• Alex Rayner, head of construction & engineering
• Emma Saunders, head of contentious probate
• Sarah Smith, head of licensing
• Karen Simms, head of commercial
• Hilary Waters, head of dispute resolution
• Christopher Welch, corporate partner and managing partner
• Tom Wills, head of rural, agriculture & estates

Next generation partners have been hailed as:

• Paul Collingwood, private client partner
• Louise Masters, head of family
• Emma Pern, corporate partner
• Kathryn Riddell, healthcare partner

Rising stars are:

• Pippa Aitken, IP specialist senior associate
• Chloe Dinsdale, healthcare senior associate
• Cristina Falzon, dispute resolution associate
• Louise Weatherhead, data and IT specialist associate

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.

Employment Law E-Bulletin – Issue 88

Edward Pattinson from the Employment department at Sintons recently recorded issue 88 of our Monthly Employment Bulletin as a podcast.

Please click on the play button below to listen.

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 7^th 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 10^th 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 31^st 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 12^th 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.

The Leisure Industry 2023

Welcome to your annual North East Leisure Supplement 2023, produced in conjunction with Sanderson Weatherall.

To view the full supplement click here.

If we can assist you in any way, or if you simply want to discuss any leisure or licensing matter, please contact us at any time.

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.

Max Winthrop – Radio Essex

Max Winthrop, Partner in the Employment team at Sintons appeared on the breakfast show on Radio Essex, where he discussed ‘A recent four day working week trial’.

Please click on the play button below to listen.

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.

Max Winthrop – Radio Shropshire – February 2023

Max Winthrop, Partner in the Employment team at Sintons appeared on the Clare Ashford afternoon show on Radio Shropshire, where he discussed ‘Worker rights explained on largest strike day since 2011’.

Please click on the play button below to listen.

Employment Law E-Bulletin – Issue 86

Lucy Milnthorp from the Employment department at Sintons recently recorded issue 86 of our Monthly Employment Bulletin as a podcast.

Please click on the play button below to listen.

Max Winthrop – Radio Newcastle – January 2023

Max Winthrop, Partner in the Employment team at Sintons appeared on Matt Bailey’s show on Radio Newcastle, where he discussed ‘Dependant leave’.

Please click on the play button below to listen.

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.

Max Winthrop – Times Radio – 2023

Max Winthrop, Partner in the Employment team at Sintons appeared on Times Radio, where he discussed ‘Hybrid working’.

Please click on the play button below to listen.

Max Winthrop – BBC Radio London – January 2023

Max Winthrop, Partner in the Employment team at Sintons appeared on the Salma El-Wardany morning show on BBC Radio London, where he discussed ‘Grant Shapps proposal to enforce minimum service levels during strike action’.

Please click on the play button below to listen.

Max Winthrop – Times Radio – January 2023

Max Winthrop, Partner in the Employment team at Sintons appeared on the Rick Kelsey Evening Edition show on Times Radio, where he discussed ‘The Prime Minister’s pledge to bring forward new tough laws to limit unions powers’.

Please click on the play button below to listen.

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.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 40

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 40’ – with Angela Carver and Max Winthrop.

The team covered the following questions:

• When is a ‘without prejudice’ offer ‘without prejudice?
• Do I need to offer flexible working from Day 1?
• Can I dismiss an employee who engages in a strike?

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

Employment Law E-Bulletin – Issue 84

Lucy Milnthorp from the Employment department at Sintons recently recorded issue 84 of our Monthly Employment Bulletin as a podcast.

Please click on the play button below to listen.

Employment Law E-Bulletin – Issue 83

Lucy Milnthorp from the Employment department at Sintons recently recorded issue 83 of our Monthly Employment Bulletin as a podcast.

Please click on the play button below to listen.

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.

Max Winthrop – BBC Radio Shropshire – November 2022

Max Winthrop, Partner in the Employment team at Sintons appeared on the Jim Hawkins mid-morning show on BBC Radio Shropshire, where he discussed ‘Redundancy – What are you rights?’.

Please click on the play button below to listen.

‘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.

2. 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.

3. 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

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!”

Employment Law E-Bulletin – Issue 82

Leigh Garbutt from the Employment department at Sintons recently recorded issue 82 of our Monthly Employment Bulletin as a podcast.

Please click on the play button below to listen.

Menopause – a time for transition of awareness within the workplace

Catherine Hope, Associate from the Employment department at Sintons, recently recorded a podcast discussing menopause awareness within the workplace.

Please click below to listen to the podcast.

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 Sintons – angela.carver@sintons.co.uk 0r 0191 226 7824.

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

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

Our session today covers the following questions:

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

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

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

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

Our session today covers the following questions:

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

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

Employment Law E-Bulletin – Issue 81

Leigh Garbutt from the Employment department at Sintons recently recorded issue 81 of our Monthly Employment Bulletin as a podcast.

Please click on the play button below to listen.

Employment law jargon in a dental sale or purchase

In episode five of our ‘Top Tips for Dentists‘ podcast series, Associate Catherine Hope from our Employment team discusses ’employment law jargon in a dental sale or purchase’.

Please click on the play button below to listen.

Employment Law E-Bulletin – Issue 81

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

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

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

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

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

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

Points to note:

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

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

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

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

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

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

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

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

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

Points to note:

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

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

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

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

Our session today covers the following questions:

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

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

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

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

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

Our session today covers the following questions:

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

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

Whistleblower receives £1.25m settlement and apology

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

In summary:

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

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

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

Employment Law E-Bulletin – Issue 80

Leigh Garbutt from the Employment department at Sintons recently recorded issue 80 of our Monthly Employment Bulletin as a podcast.

Please click on the play button below to listen.

Employment Law E-Bulletin – Issue 80

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

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

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

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

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

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

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

Points to note:

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

Covid-19 – temporary Statutory Sick Pay provisions revoked

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

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

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

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

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

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

Points to note:

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

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

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

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

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

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

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

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

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

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

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

Our session today covers the following questions:

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

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

Leading Employment seminar returns

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

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

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

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

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

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

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

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

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

* To register for the event, click here. 

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

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

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

Our session today covers the following questions:

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

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

What should you do if an employee fails to provide evidence of Right to Work in the UK

In the third of her ‘Understanding Business Immigration‘ podcast series, Associate Fiona Campbell discusses ‘what you should do if an employee fails to provide evidence of Right to Work in the UK’.

Please click on the play button below to listen.

Employment Law Update Bulletin – February 2022

Emily Richardson from the Employment department at Sintons recently recorded our February 2022 issue of the Employment Law Update Bulletin as a podcast.

Please click on the play button below to listen.

Employment Law E-Bulletin – Issue 79

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Points to note:

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

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

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

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

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

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

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

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

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

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

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

Points to note:

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

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

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

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

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

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

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

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

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

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

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

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

The decision

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

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

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

What is to be taken from this decision

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

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

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

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

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

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

Our session today covers the following questions:

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

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

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

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

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

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

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

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

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

Covid-19: Temporary changes to statutory sick pay rules

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

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

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

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

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

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

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

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

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

You can find the legislation by clicking here.

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

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

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

Our session today covers the following questions:

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

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

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

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

Our session today covers the following questions:

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

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

GP Mergers

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

Please click on the play button below to listen.

Annual Employment & Immigration Update – October 2021

Head of Employment Keith Land and Associates Angela Carver and Fiona Campbell recently gave our Annual Employment & Immigration Update seminar, held at Newcastle Eagles.

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

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

Dealing with disciplinaries

In the second of our ‘Top tips for GPs‘ podcast series, Healthcare & Employment associate Fiona Campbell gives an overview on dealing with disciplinaries.

Please click on the play button below to listen.

Employment Focus November 2022

Emily Richardson from the Employment department at Sintons recently recorded our November 2021 issue of the Employment Focus as a podcast.

Employment Focus | Post furlough: Options for employers

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

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

Proposing changes to terms and conditions

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

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

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

Temporary Stoppages

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

Sabbaticals

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

Unpaid leave

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

Holidays

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

Overtime bans

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

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

Redeployment or secondment

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

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

Lay off and short time working

Lay off

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

Short time working

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

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

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

General headcount reduction

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

Redundancies

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

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

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

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

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