Can menopausal symptoms amount to a disability?

Under the Equality Act 2010, a person is viewed as disabled if they suffer from a physical or mental impairment that has a substantial ‘long term’ negative effect on their ability to carry out day to day activities.

A woman going through menopause is likely to suffer from symptoms such as depression, mood swings and sleep disturbances.

The level of symptoms differ, and in some cases some women will suffer more extreme symptoms. But do these amount to a disability? This was reviewed in the Employment Tribunal (ET) case of Davies v Scottish Courts & Tribunal Service.

In this case, the claimant worked as Court officer for over 20 years. She began to suffer substantial symptoms related to menopause, which included stress, anxiety, heart palpitations, memory loss and pins and needles in her hands and feet. As well as this, she experienced tiredness, light-headiness and was at risk of fainting. Despite this, she kept on working and was put on medication for a bout of cystitis.

Ms Davies stored the medication – which came in granules – that were to be dissolved in liquid – in a pencil case on her desk, adding her medication to her water jug throughout the day.

However, one day Ms Davies returned from an adjournment and discovered two men drinking water from her jug. She voiced her concerns to them; that they had been drinking her medication when an argument broke out with one of the men launching into a rant.

As part of the disciplinary process, an Occupational Health Report was obtained. Details within this report concluded that not only did Ms Davies’ condition lead to heavy bleeding, but she suffered from amnesia too and as a result was easily confused and forgetful. Her employers disregarded this report and argued that she had knowingly misled the men about her mediation in the water – and she was dismissed.

Employment Tribunal considerations

The ET established that the report and the employer’s knowledge on how extreme her symptoms were, clearly met the definition of disability. This was supported because her symptoms were a physical impairment which had a long-term adverse effect on her ability to carry out normal day to day activities. Her employment was reinstated, and her employers were forced to pay over £19,000 in damages.

Employer considerations

The decision in this case highlights the importance of employers making an effort to understand the extent in which any condition affects an employee’s ability to carry out day to day activities. While most women will only suffer from minor symptoms, it is important that employers recognise some will suffer more severely. All employers should be aware of the possibility of discrimination complaints being brought against them and ensure they take necessary action to make reasonable adjustments in the workplace.

How can Employment Law Services (ELS) help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

“Working people need more than vague promises” says the Trade Union Congress

Summary of the Queens speech 2017: What it means for you

The Queens speech was delivered on the 21st of June 2017 in the House of Parliament. The purpose of this speech was to define the Minority Government’s legislative programme that the UK will see take effect over the next two years.

Regarding employment issues, the speech revealed details on the Governments plans previously pledged in the General Election, however, not all pledges appeared to remain.

The speech commenced on the issue of Brexit, her Majesty stated: “My government’s priority is to secure the best possible deal as the country leaves the European Union.

“My ministers are committed to working with Parliament, the devolved administrations, business and others to build the widest possible consensus on the country’s future outside the European Union.

“A bill will be introduced to repeal the European Communities Act and provide certainty for individuals and businesses.”

It has been announced that the UK will continue to attract “the brightest and the best” however, this will be based on a new Immigration Bill which will see the end to EU rules on free movement for EU nationals in the UK. Further, EU nationals and their families will now be governed under UK legislation following Brexit.

In relation to technical education, the minority Government have planned to implement 15 technical education routes, which include “T-Levels”, these will be prepared based on standards required from employers.

In May 2017, the Conservative Party had pledged to introduce ethnicity pay gap reporting, however, the Queen failed to go into great detail on this in her speech. She stated: “My Government will make further progress to tackle gender pay gap and discrimination against people on the basis of their race, faith, gender, disability and sexual orientation.”

The Conservative Party’s general election manifesto involved the extension of protections under the Equality Act 2010. At present, an individual must have suffered for 12 or more months for it to be classed as a disability under equality legislation. The Tory’s had pledged to cut this requirement…… There was no further mention of this in the Governments legislative plans on Wednesday.

In addition, the Government have failed to mention scrapping the 1% pay cap on public service workers, despite the pressure that has been put on the Prime Minister since losing out on a majority Government.

In response to the speech, Frances O’Grady who is the General Secretary of the Trade Union Congress commented: “The election showed that working people are fed up with an economy that doesn’t work for them – but the government still isn’t listening.”

“The Queen’s Speech makes vague promises but says nothing about the changes working people need right now – like banning zero hours contracts or making gig economy employers treat their workers fairly.”

“Nor is there anything in this Queen’s Speech to end the year-on-year real-terms pay cuts that are hitting brave and dedicated public servants, and pushing nurses into using foodbanks.”

“Workers’ rights will be put at risk by the Great Repeal Bill. It will allow ministers to bypass parliament and erode rights that come from the EU – like paid holiday and protections for part-time and agency workers. The bill must contain a specific provision to stop ministers going back and undermining the rights of working people.”

How Can We Help?

If you are unsure about how these potential changes to employment law might affect your business, or simply want to check your company’s compliance generally, contact us and we will undertake a full review of your current arrangements and provide you with our findings and recommendations. Call us now for your free consultation – 0800 612 4772

Understanding Employment Status, The Risks of Getting it Wrong and What You Can Do To Avoid Them

UK employment laws are extremely complex and with the government introducing regular changes, many UK employers often struggle to keep up to date and keep their business compliant.

The thought of complying with these complex UK employment laws often leaves business owners concerned and unsure about employing staff directly and so many choose instead to use self employed workers, thinking this means they won’t need to worry about typical employment related matters… but it’s not that simple!

An increase of atypical contracts has effectively blurred the lines between self-employed and employed status and so employers should be very careful when entering into any sort of working relationships. A basic explanaiton of each status/category is as follows:

Employee:  Under section 230(1) of the Employment Rights Act 1996 (ERA 1996) an employee is defined as “an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment”. Under section 230(2) of ERA 1996, a contract of employment means “a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing”.

Worker:  A worker is defined under section 230(3) of ERA 1996 as an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment; or any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.

Self-Employed:  A person is self-employed if they run their business for themselves and take responsibility for its success or failure and they aren’t paid through PAYE.

Significance of the distinction

The distinction between the three categories is significant for a number of different reasons, including the following:

1) Employers and employees have obligations that are implied into the contract between them (for example, the mutual duty of trust and confidence). Some core legal protections only apply to employees, most particularly the rights on termination of employment granted under ERA 1996 (the right not to be unfairly dismissed and the right to receive a statutory redundancy payment). As mentioned above (see Worker status), workers enjoy limited protection under employment law.

2) Only employees are covered by the Acas Code of Practice on Disciplinary and Grievance Procedures

3) Only employees will be automatically transferred to any purchaser of their employer’s business under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246).

4) The tax and social security treatment of a person providing services depends on their status.

5) An employer is vicariously liable for acts done by an employee in the course of their employment. This vicarious liability is unlikely to extend to independent contractors or self-employed individuals.

6) An employer is required to take out employer’s liability insurance to cover the risk of employees injuring themselves at work. Self-employed individuals or independent contractors may not, in every case, be covered by this insurance and may want to consider entering into appropriate insurance for their own benefit.

7) Employers owe employees statutory duties relating to health and safety. Independent contractors may not be covered under these duties although they will be covered under the employer’s common law duty of care in respect of occupier’s liability.

Increasingly, disputes over the definition of working relationships between individuals and Employers are being referred to Employment Tribunals where preliminary hearings are being used to determine the legal definition and, in many cases, businesses who thought they were contracting self-employed individuals have found they are actually employing them and so immediately find themselves subject to the full range of UK employment law.

Employee who accepted £200 to become labour-only subcontractor was a worker entitled to holiday pay

In a recent case at the Employment Appeal Tribunal, the EAT upheld an employment judge’s decision that a general labourer, who was employed for four years before accepting £200 in exchange for becoming a labour-only subcontractor for the same company, was a worker for the purposes of the Employment Rights Act 1996 and the Working Time Regulations 1998 (SI 1998/1833). The tribunal therefore had jurisdiction to hear his claims for unlawful deductions in respect of unpaid holiday pay.

The employment judge had been entitled to find that the necessary mutuality of obligation existed during each assignment or period of work undertaken. There had been no express provision about substitutes being permitted and, on the evidence, the employment judge had found that this did not occur. Accordingly the requirement for the personal performance of work had been met. The labourer did not actively market his services to the world in general and had been recruited by his former employer to work as a member of its workforce under a supervisor at particular sites or to transfer goods between sites. The requirements of integration and control had therefore also been met. (Plastering Contractors Stanmore Ltd v Holden UKEAT/0074/14.)

Lack of mutuality of obligation between assignments irrelevant to whether court interpreters were “in employment” for discrimination purposes

In another recent case heard by the Employment Appeal Tribunal, the EAT overturned a tribunal’s decision that two interpreters, who performed regular assignments for HM Courts and Tribunals service (HMCTS), were not “in employment” under the Equality Act 2010 and were therefore unable to pursue race discrimination claims. The tribunal had misdirected itself in taking into account an irrelevant factor; the absence of mutuality of obligation between the interpreters and HMCTS between assignments. The key question for discrimination purposes was whether the interpreters, when engaged, were employed “under a contract personally to do work”.

The EAT remitted the case to the same tribunal to consider afresh whether the interpreters provided their services to HMCTS “in a position of subordination”. If they did, their discrimination claims could proceed. On the other hand, if they were truly independent providers of services to the world at large and HMCTS was merely one of their professional clients, they would not be protected. (Windle v Arada and another UKEAT/0339/13.)

So how can employers work out whether the working relationships they have with individuals are that of employer/employee or employer/self-employed?

Over the years, various different tests have been used to determine the nature of working relationships between individuals and Employers including the ‘Control Test’, the ‘Integration Test’ and the ‘Economic Reality Test’ but these days, preliminary hearings held by Employment Tribunals use the ‘Multiple Factor Test’.

The ‘Multiple Factor Test’ looks at a number of different factors opposed to just one or two. The factors normally taken into consideration include but are not limited to the following:

1) Does the worker receive a regular wage or a one off payment or fee?

2) Can the employer dictate the place of work and the way it is to be carried out, in other words what is the employer’s degree of control in the relationship?

3) Does the employer have the right of exclusive service?

4) Does the employer have the right discipline and the power to dismiss the worker?

5) Who owns the tools or other means of production?

6) To what extent is the employer obliged to provide work for the worker to perform and to what extent is the worker obliged to accept such offers of work? Commonly known as ‘mutual obligations’.

Recent case law suggests that the minimum criteria to establish a contract of employment is mutuality of obligations and control but this is no guarantee that the presence of these two criteria means there is definitely an employer/employee relationship. However, if either of these is missing then there won’t be an employee/employer relationship.

The Importance of Having a Contract

It is critical that employers correctly determine the nature of the working relationship they have with their workers and then review their contracts to ensure they are compliant with current legislation and are what they actually were intended to be.

The concept of a contract of service is one explored extensively in case law, where it is distinguished from a contract under which a person gives service as an independent contractor under a contract for services.

The terms “contract of service” and “contract for services” carry no statutory definition and the category into which a particular contract falls is determined according to case law. In very simple terms, under a contract of service a person agrees to serve another, whereas under a contract for services they agree to provide certain services to the other. However, that simple formulation is the start, not the conclusion, of the legal analysis.

Key Points Employers Should Consider

1) The nature of the duties that can, and cannot, be delegated – both in terms of the proportion of those duties to the rest of the duties and whether they are the “dominant purpose” of the agreement. If the duties that can be delegated are the dominant purpose of the agreement, it is unlikely to be a contract of service.

2) When the right to delegate will arise, whenever the individual chooses or just when they are unable to do the work.

3) Who organises and pays the substitute.

4) Whether the right to delegate is subject to any limitations, in particular as to who can be used as a substitute.

5) Whether the individual would be able to profit from delegating the duties (that is, whether they could pay any substitute less than they receive themselves).

6) The absence of mutual obligations (that is, to provide work and to do it) is also likely to be fatal to a finding of a contract of employment. While this would appear to rule out any contract of employment existing between parties who have not contracted with each other at all, where the individual is supplied to work for an organisation by an intermediary such as an employment business, which sits in the middle of the contractual chain, the possibility of an implied contract between an individual and the organisation to which they actually give their services is now a possibility and will be considered by employment tribunals.

7) Where a person works under a series of short-term contracts, it is possible that each of those could be a contract of service, even if it is short and temporary. Similarly, it may be necessary to assess the overall nature of the relationship to determine whether an over-arching employment contract exists due to sufficient mutuality of obligation in the period between periods of work.

8) The degree of control exercised by the organisation over the worker will always be a relevant factor. However, control is unlikely to be the only relevant factor. The tribunals or courts are likely to create a picture from which it is necessary to step back in order to form an overall view.

How Can You Avoid Getting Caught Out?

  • Contact Us – we will undertake full review of your current arrangements and provide you with our findings and recommendations
  • Ensure you have approproraie contracts should be drafted and issued to ensure the nature of the working relationship is clearly determined.
  • Give us a call on 0800 612 4772 and we’ll help you to prevent problems and protect your business.

Top tips to help employers stay on the ball throughout the World Cup

World Cup fever is well and truly underway, this blog focuses on how to manage your football fanatic employees and embrace the competition in the workplace.

From football crazy fans, to those that just enjoy the occasional game, times like these will see most employers having to deal with a larger number of annual leave requests, sick days and moans about not having time to watch some of the matches.

Acas’ full guidance for the World Cup 2018 include top tips such as:

Sporting and events policies

These can be used for all sporting events and not just the World Cup. This policy should be made up of provisions that cover HR and health and safety issues; outlining any exceptions you would be willing to make during a major event.

Time off

All annual leave requests should be considered fairly. As football is not everyone’s thing, a consistent approach should be applied throughout.

The right to refuse

Employers should note that they are well within their rights to refuse annual leave if they receive too many requests, or if it is clear that the business will suffer with too many employees off at the same time.

Absence levels

Employers should be aware of high levels of absence and late attendance throughout the World Cup. In this instance, monitoring absences in line with the companies’ absence policy is recommended.

Social media policy

It is likely that there will be an increase in the use of social media such as, Facebook, Instagram, Twitter etc throughout the World Cup. Employers should remind all employees of the company’s social media policy during working hours. This policy should be clear on what will be viewed as acceptable and unacceptable internet use.

Alcohol policy

Showing up to work under the influence may be viewed as a matter of disciplinary. Employers should have drug and alcohol policies in place to ensure that problems are dealt with effectively and consistently. All employees should be reminded of this policy.

Employee behaviour

Employees may get fairly competitive and carried away with rivalries during the World Cup. It is important that employees are aware that verbal abuse will not be tolerated in the work place. Verbal abuse includes threatening, shouting, swearing, insulting or mocking an individual.

Employers are responsible for preventing bullying and harassment and will be liable for any harassment suffered by their employees. Having an anti-bullying and harassment policy in place can help prevent these problems.

Most importantly, have fun!

Employers should treat the World Cup as an opportunity. Any international sporting event is a great way to bring your team together and create a fun working environment. Employers may wish to relax some of the rules (for example, allowing employees to wear football shirts or organise a sweepstake) gestures like these will not go unnoticed and can really boost employee morale in the workplace.

How can Employment Law Services (ELS) help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Employers – Avoid an Own Goal During FIFA World Cup 2018


The 2018 FIFA World Cup started yesterday and will run until 15 July. Whilst this will no doubt excite football fans others will be less excited, including many Employers, not least due to the difficulties it could cause them.

The not so good news for UK Employers

With kick off times ranging from 1pm to 7pm staff could still phone in sick, or worse simply not turn up in order to watch matches  and this could have serious implications for Employers.

To help Employers better understand the risks and equip them with tools to better manage the situation and create a positive outcome for both employer and employee, we’ve outlined below the keys points Employers should consider.

Potential Issues Employers Might Face

  • Unauthorised absence;
  • Staff being drunk / under the influence of alcohol at work;
  • Inappropriate conduct by employees – discrimination, racism, bullying or harassment;
  • Increases in holiday requests from both football and non-football fans alike.

Ways Employers Could Avoid Issues

1.  Ensure You Have Clear Policies in place including:

  • Sickness & Absence Policy
  • Code of Conduct
  • Discipline & Grievance Policy
  • Bullying & Harassment Policy
  • Drugs & Alcohol Policy
  • Equality & Diversity Policy
  • 2.  Manage absenteeism in advance.

    • Make it clear to employees that absences without authorisation will not be paid and may lead to action under the Disciplinary Policy.
    • Utilise Return to Work Interviews to identify and address fake sickness absence or absent resulting from post-match hangovers

    3.  Reconsider Your Holiday Arrangements

    • Relax caps on the number of employees that are allowed to be on holiday at one time
    • Where staff have indicated they want to see certain matches, encourage them to take the time off as annual leave.
    • Remember non football fans may make holidays requests during the same period and so you will need to ensure you treat all holidy requests fairly and equally.  Granting a holiday request by a male employee but refusing a holiday request from a female employee could trigger a claim of sex discrimination!

    4.  Some Other Things to Consider

    • Screening matches in a meeting room or communal area.
    • Relaxing your Internet Policy and allow employees to stream matches on their PCs.
    • You will need to ensure you have the appropriate licenses in place which allow screening or streaming of live TV within the workplace.

    Events like this can create legal pitfalls for Employers, especially those who don’t have up to date HR policies in place.  If you would like a free assessment or specific advice on this or any other employment related matter Contact Us today on 0800 612 4772 or alternatively request a Free Quote Now.

Employment Status: Supreme Court dismisses Pimlico Plumbers’ appeal

Yesterday, the Supreme Court handed down its eagerly sought verdict on the employment status of plumber, Gary Smith.

In the unanimous vote, the Supreme Court dismissed Pimlico Plumbers’ appeal and upheld earlier rulings that Mr Smith was in fact a worker and not a self-employed contractor.

In this case, the Supreme Court had to conclude:

  • Whether Mr Smith was obliged to personally carry out his work duties; and
  • Whether Pimlico Plumbers could be viewed as a client or customer of Mr Smith

The main feature of Mr Smith’s contract was that he had the obligation to carry out the work himself and did not have the right to pass the work on to someone else. However, he did have the right to pass on the work to another Pimlico Plumber, this was a qualified right which was not set out in the written contract.

Mr Smith was able to decline work and take some financial impact, but this did not outweigh the factors that pointed against Pimlico Plumbers being a client. Further, Pimlico Plumbers were in control of Mr Smith’s work uniform, his administrative duties and his wages. This relationship was a fundamental indictor when determining whether Pimlico Plumbers were a client of Mr Smith.

Taking all of the above into consideration, the Supreme Court held that the original tribunal had been right to conclude that Mr Smith was a worker and not self-employed.

What does this mean for employers?

The Supreme Court’s decision does not set any new legal grounds or redefine any of the legal tests that should be used when verifying an individual’s employment status.

However, it is important that employers are aware of what defines the employment relationship as it not only sets out their responsibilities, but individuals rights too. It also affects how they pay tax and national insurance and some entitlements.

A person will be classed as a worker if:

  • They have a contract or other arrangement to do work or services personally for a reward (your contract doesn’t have to be written)
  • Their reward is for money or a benefit in kind, for example the promise of a contract or future work
  • They only have a limited right to send someone else to do the work (subcontract)
  • They have to turn up for work even if they don’t want to
  • Their employer has to have work for them to do as long as the contract or arrangement lasts
  • They aren’t doing the work as part of their own limited company in an arrangement where the ‘employer’ is actually a customer or client

A person will be classed as an employee if:

  • They’re required to work regularly unless they’re on leave, for example holiday, sick leave or maternity leave
  • They’re required to do a minimum number of hours and expect to be paid for time worked
  • A manager or supervisor is responsible for their workload, saying when a piece of work should be finished and how it should be done
  • They can’t send someone else to do their work
  • The business deducts tax and National Insurance contributions from their wages
  • They get paid holiday
  • They’re entitled to contractual or statutory sick pay, and maternity or paternity pay
  • They can join the business’s pension scheme
  • The business’s disciplinary and grievance procedures apply to them
  • They work at the business’s premises or at an address specified by the business
  • Their contract sets out redundancy procedures
  • The business provides the materials, tools and equipment for their work
  • They only work for the business or if they do have another job, it’s completely different from their work for the business
  • Their contract, statement of terms and conditions or offer letter (which can be described as an ’employment contract’) uses terms like ‘employer’ and ‘employee’

A person will be classed as self-employed if:

  • They’re in business for themselves, are responsible for the success or failure of their business and can make a loss or a profit
  • They can decide what work they do and when, where or how to do it
  • They can hire someone else to do the work
  • They’re responsible for fixing any unsatisfactory work in their own time
  • Their employer agrees a fixed price for their work – it doesn’t depend on how long the job takes to finish
  • They use their own money to buy business assets, cover running costs, and provide tools and equipment for their work
  • They can work for more than one client

How can Employment Law Services (ELS) help?

If you require employment law advice on any of the issues raised in this article, or any other employment issue give us a call today on 0370 218 5662.  You can also find out more about our fixed fee HR packages here and fixed fee employment law packages here, or get in touch.

Does ‘misconduct’ need to be ‘gross’ to make a dismissal (without prior warnings) fair?

Does dismissal need to be ‘gross’ to make a dismissal fair?

No, held the Employment Appeal Tribunal (EAT) in Quintiles Commercial v Barongo.

In this case, the Claimant worked in pharmaceutical sales and found themselves dismissed on the grounds of misconduct after failing to complete compliance training and not attending a compulsory training course.

On appeal, the employer re-classed the dismissal as serious, yet, upheld the dismissal. The Employment Tribunal (ET) argued that the dismissal was unfair, maintaining that for serious misconduct dismissals prior warning should be applied.

The EAT upheld the employers appeal on the grounds that s90 (4) of the Employment Rights Act does not specify that dismissing an employee without prior warning for conduct that falls short of gross misconduct must be unfair. Although in most cases, such dismissals are outside the band of reasonable responses.

The ET approached this case with the firm view that where conduct fell short of gross misconduct, dismissal could only be viewed as appropriate is prior warnings were in place. The ET should have taken into consideration the entire circumstances of this case, including the ACAS Code of Practice and the employer’s disciplinary procedure. This case has been referred to a new ET for reconsideration.

When considering the fairness of a dismissal, tribunals have to determine whether the employer has acted reasonably or unreasonably in treating the reason given by the employer as an adequate reason to dismiss.

If an employee has committed an act of gross misconduct, then clearly there will be a sufficient reason to dismiss. But what exactly is viewed as gross misconduct?

Gross Misconduct

Gross misconduct occurs when an employee has acted so badly that the employer/employee relationship is destroyed. In this event the employer merits the right of instant dismissal without notice or pay of notice.

It is recommended that employers give equip their employees with a clear indication of what type of behaviour will be considered as gross misconduct. Such provisions should be set out in the contract of employment or within the staff handbook. This then allows employers and employees to easily identify such behaviour in advance and will help determines later that you regard it as significant.

Examples of gross misconduct include, intoxication, theft, bullying or harassment, serious breaches of health and safety rules and fighting or physical abuse.

Depending on the nature of the organisation, employers may wish to detail other offences. Such as, accepting or offering bribes, misuse of confidential information or setting up a competing business.

Employment Law Support for Employers

Terminating the employment relationship should always be a last resort and it is crucial that employers seek legal advice before taking drastic action.

If you are an employer and require employment law advice on workplace policies or any other employment issue give us a call today on 0370 218 5662. You can also find out more about our fixed fee HR packages here and fixed fee employment law packages here, or get in touch.