Her Majesty The Queen was a national treasure who represented the very best of our United Kingdom throughout her entire life and we join the Country in mourning her loss.
For 70 years the Queen epitomised selfless devotion to the United Kingdom, the Commonwealth and the World, the likes of which we will never see again, and her loss will be felt dearly across Scotland, the United Kingdom and around the World. May God give to you and all whom you love his comfort and his peace, his light and his joy, in this world and the next; and the blessing of God almighty, the father, the Son, and the Holy Spirit, be upon you, and remain with you this day and for ever. Our thoughts and prayers are with The Royal Family at this sad time.
Our ‘Top Tips’ for employers to help them to effectively manage employee grievances to contribute to positive working relationships and prevent minor issues escalating into more serious matters.
What is a Grievance?
A grievance is a complaint made by an employee to their employer to resolve workplace disputes, and which requires the employer to take further action. Grievances can be solved by informal discussions, formal procedures, mediation, conciliation or arbitration. We have set out below some general advice on investigating a grievance, conducting a grievance meeting and dealing with any appeal.
Employers should bear in mind that employees who raise a formal grievance are already likely to be feeling upset and it is important to respond appropriately to prevent the situation from escalating.
These tips for effective grievance management are intended to provide employers with a summary of the issues that may need to be considered and is not intended to be a detailed analysis of the law in this area. For advice on a specific case, please contact us via our website or Book a Free Consultation online with one of our specialist employment law advisors.
Initial Considerations When Managing a Grievance
It is best to avoid an antagonistic approach when responding to an employee’s grievance and to keep an open mind. When dealing with an employee’s grievance it is advisable to take the following into account:
The company’s grievance procedure.
The Acas Code of Practice on Disciplinary and Grievance Procedures and supporting Acas guide to discipline and grievances at work.
The Acas guide to workplace investigations.
The first consideration is whether the matter should be dealt with formally under your grievance procedure, or whether informal resolution is a suitable option. You should be guided by the employee’s wishes and by the nature of the grievance raised. For example, if an employee has been offended by an off-hand comment made by another employee, an informal word with the employee in question may resolve the matter sufficiently from both the aggrieved employee and the employer’s perspective. In other cases, involving a more serious breakdown of the relationship between employees, other forms of resolution such as workplace mediation can be appropriate and more effective.
However, where a grievance raises a potential legal issue, you should deal with it under your formal procedure in order to establish whether any action needs to be taken internally and to protect your legal position. For example, a grievance alleging discrimination should always be thoroughly investigated, even if the employee is reluctant for it to be treated as a formal grievance.
Consideration should also be given at an early stage as to whether:
The grievance raises issues under other policies such as your whistleblowing, bribery, equal opportunities, anti-harassment or bullying, or stress at work policies, and whether any of those policies provide a more appropriate procedure.
The employee has a disability and, if so, whether you should make any reasonable adjustments to the grievance process to help ameliorate any disadvantage caused to them by their disability.
The grievance raises issues that could potentially result in disciplinary action against another employee or employees.
If the matter needs to be dealt with as a formal grievance and requires investigation, you should ensure that a fair and balanced investigation into the grievance and the surrounding circumstances is carried out.
Appoint a Grievance Investigator
When deciding who should investigate the grievance, you should take into account the seriousness and complexity of the matter and the nature of the grievance. For example, if discrimination or harassment is alleged, an investigator who has up to date equal opportunities training should ideally be appointed.
In many cases, an appropriate line manager or someone from HR could carry out the investigation. However, if the evidence to be investigated is serious or complex, it would be desirable to appoint someone more senior or experienced. It is important that the investigator is not involved in any way in the issues raised in the grievance.
The Grievance Investigation
An investigation is a fact-finding exercise to collect all the relevant information on the issues raised in the grievance. A properly conducted investigation will enable you to make an informed decision on the grievance after a full consideration of all the relevant facts. Making a decision on a grievance without first completing a reasonable investigation could potentially make that decision unfair and leave the business vulnerable to legal action.
An investigatory meeting with the aggrieved employee will usually be required at an early stage. This will help the investigator establish the issues surrounding the grievance, what other witnesses need to be interviewed and what evidence needs to be obtained.
Any investigatory meetings to interview the employee or other witnesses should be held in private and notes should be taken of the meeting. The number of witnesses should be restricted to the minimum required to establish the facts surrounding the grievance. It is good practice for the investigator to prepare written witness statements and ask the witnesses to approve these before the investigation is concluded.
In addition to interviewing witnesses, the investigator should consider whether physical evidence, such as CCTV or computer or phone records may be relevant to the investigation.
Once the investigator considers that they have established the facts surrounding the grievance, as far as is possible and appropriate, it is good practice for them to prepare a written investigation report setting out the scope of the investigation, the process followed to investigate and a summary of their findings.
Confidentiality
Confidentiality is important throughout the grievance process, both in relation to the investigator, the meeting chairs, note-takers and any witnesses interviewed. Witnesses should be advised to not discuss the grievance or investigation with other employees or third parties and, where appropriate, reminded of their legal duties of confidentiality. You should make it clear that any breach of confidentiality will be treated as a disciplinary matter. However, the employee should be free to discuss the matter with their employee representative, should they have one.
The Grievance Meeting
A grievance meeting should be held as soon as possible after a grievance has been received. In some cases, it will be appropriate to hold the meeting shortly after receiving the grievance and then adjourn the meeting while the investigation is carried out. This approach may be particularly helpful if it would be beneficial to clarify the issues raised in the grievance before the investigation starts.
In many cases, it is appropriate for the investigator to also chair the grievance meeting. Alternatively, you may wish to appoint another manager to hear the grievance who has not been previously involved. You should, however, bear in mind that a person in a senior position should be kept out of the grievance process at this stage in order that an impartial senior person is available to hear any appeal.
The meeting should be held at a reasonable time and place, in a private meeting room during the employee’s normal working hours. Sufficient notice should be given for the employee to adequately prepare and make suitable arrangements to attend the meeting. The invitation to the meeting should set out the employee’s right to be accompanied by either a colleague or a trade union representative if they wish.
There should also be someone present to take notes of the meeting, a copy of which should be provided to the employee following the meeting. The note-taker is often someone from HR.
At the start of the meeting, the chair should introduce those present and explain the purpose of the meeting. If the employee is unaccompanied, the chair should remind them again of their right to be accompanied. The chair should emphasise that the primary purpose of the meeting is to work towards a resolution of the employee’s grievance. The chair should try to ensure that the meeting remains conciliatory rather than adversarial and be aware that the employee may find discussing their grievance stressful and upsetting.
The chair should check that the employee is satisfied with the arrangements for the meeting, and has received, read and understood all the necessary documents, including the grievance procedure, any report of the investigation, and any witness statements.
The employee should then be given the opportunity to explain their grievance. The chair should then take the employee through the investigation report and any evidence obtained.
There is usually no need for witnesses to attend the meeting as the matter can be dealt with by witness statements alone. However, if the employee requests that relevant witnesses attend the meeting, you should give consideration to this. The law does not require the chair to allow courtroom style cross-examination of witnesses and this type of adversarial approach is best avoided in dealing with a grievance. However, the employee should be allowed to raise points in response to anything a witness has said.
The employee’s representative (if any) can make statements and ask questions on their behalf. It is not appropriate for the representative to answer questions that have been put to the employee directly, although they may confer privately with them before any reply is given.
Regard should be had to the fact that the employee and any witnesses may be under significant stress during the meeting, and therefore may become visibly distressed and/or aggressive. The chair should be sensitive to this and, if necessary, make sensible use of adjournments for “time out” and to allow the individuals concerned to regain their composure.
At the end of the meeting, the chair should summarise the information put forward by both the employee and the investigation and request any necessary clarification from the employee.
Adjourning the Grievance Meeting
When all parties have explained their position and there are no further questions, the meeting should then be adjourned for the chair to consider what the employee has said. Issues that have been raised by the employee during the meeting may require further investigation and witnesses may need to be re-interviewed if they were not at the meeting. If new information comes to light, this should be given to the employee in writing, with sufficient time to consider it before the meeting is reconvened, at which stage they should be given a chance to respond to it.
Even if the chair has an idea as to the appropriate decision at the end of the meeting, it is always good practice to adjourn in any event to take time for consideration. This makes it less likely the matter will be seen to have been pre-judged.
Obviously, the length of any adjournment will depend on the complexity of the issues to be considered and whether further investigation is needed. It is helpful to give the employee an indication of how long it is likely to be before the meeting is reconvened. If the adjournment is only for a short period, the chair may wish to leave the employee in the meeting room while they consider their decision. However, in most cases it is sensible to adjourn at least until the following day.
The Decision
Once the chair has reached a decision, the meeting should ideally be reconvened and the action you have decided to take to resolve the grievance should be explained to the employee. While the decision must be given in writing in any event, it is usually better first done face-to-face and then confirmed in writing.
In some cases, a grievance investigation will result in disciplinary action being taken against another employee. If this is the case, you should not disclose this information to the employee as this could be a breach of the employer’s duty of trust and confidence to the employee to be disciplined. You should simply reassure the employee that appropriate action will be taken as a result of their grievance.
The employee should be advised of the fact that they have a right to appeal if they are not happy with the original decision. Instructions on how to appeal should be provided, including the name of the person to whom the appeal must be submitted and the timescale for appeal. Five working days is generally considered reasonable but there is no specific time limit in the Acas Code of Practice, so you may wish to take legal advice before rejecting an appeal as being out of time.
Grievance Appeals
So far as possible, any appeal should be heard or chaired by someone who has not been previously involved. Ideally, they should be more senior than the chair of the grievance meeting and, where possible, outside their direct reporting line.
The manager conducting the appeal should have access to the evidence compiled during the investigation and copies of the notes from the grievance meeting. However, they should not confer with the chair of the grievance meeting before the appeal meeting, as this may lead to a biased view being taken before the employee has presented their arguments.
There is no set format for the appeal, provided the employee is allowed adequate opportunity to present their arguments. The chair should aim to be as impartial as possible. If the original meeting was procedurally flawed, the grievance raised a particularly serious issue, or the grievance could result in disciplinary action against another employee, it may be appropriate for the appeal to be conducted as a full rehearing of all the evidence. In other cases, it may be acceptable to simply review the original decision based on the paperwork and any representations the employee may make.
Employees have the same right to be accompanied at an appeal meeting as at a grievance meeting.
Do You Need Assistance?
The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on how to deal with a grievance appropriately to maintain good employee relations and to try to avoid costly and time-consuming tribunal claims. If you need assistance or have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.
Following the much awaited Supreme Court decision in the Harpur Trust v Brazel holiday pay case, we consider the implications for calculating holiday entitlement and pay for atypical workers.
Whilst the Supreme Court ruling may have major implications for thousands of employers, changing the way holiday pay should be calculated for staff working irregular hours on permanent contracts, it has created confusion about the way employers should calculate statutory holiday entitlement.
In Britain, holiday rights are set out in the Working Time Regulations 1998 (WTR 1998) and a worker’s statutory holiday entitlement is treated separately to their entitlement to statutory holiday pay.
Holiday Rights Under the Working Time Regulations 1998 (WTR 1998)
The main statutory rules on holiday rights are contained in the WTR 1998, which implement the Working Time Directive (2003/88/EC) (WTD). Article 7 of the WTD provides that each member state must ensure that every worker is entitled to paid annual leave of at least four weeks, with the conditions for entitlement to such leave being set by national legislation or practice.
Statutory Holiday Entitlement
Regulations 13 and 13A of the WTR 1998 set out the basic right to annual leave as follows:
A worker is entitled to 5.6 weeks’ annual leave in each leave year. This is equivalent to 28 days for those who work five days a week). This is made up of the right under the WTD to a minimum of four weeks’ annual leave (20 days for full-time employees) each year (transposed into national law by regulation 13(1) of the WTR 1998).
The domestic right to an additional 1.6 weeks’ annual leave (8 days for full time employees) each year, which represents the number of public holidays in England and Wales in a year. However, there is no need to use these days on public holidays (regulation 13A, WTR 1998).
A worker cannot be entitled to more than 28 days’ statutory leave in a single leave year (regulation 13A(3)).
A part-time worker is entitled to 28 days’ holiday reduced pro rata, according to the number of days they work each week. This can still be expressed as 5.6 weeks’ leave.
No minimum period of continuous service is required to qualify for statutory annual leave.
A worker whose employment begins part way through a leave year has a pro rata statutory holiday entitlement for that year.
Calculating Statutory Holiday Entitlement
The ruling in the Harpur Trust v Brazel case made clear that a worker on a permanent contract and engaged for a whole year has an entitlement to 5.6 weeks holiday, so all workers who do not have regular working hours.
However, the WTR do not set out how to convert this into entitlement in days or hours for workers with irregular hours. The latest government guidance suggests that holiday entitlement for workers who do not have a regular working pattern should be kept in weeks opposed to hours or days as this will make it easier to manage.
In consideration of this, employers may wish to calculate average days or hours worked each week based on a representative reference period, although the Regulations do not expressly provide for this. For example, and using a 12-week reference period, if an employee works a total of 48 hours on a variety of days and hours, their average working week would equate to 4 days per week meaning a week’s leave for that worker would equate to 4 days.
For people with a fixed working pattern involving a set number of days of equal length and those contracted to work a set number of hours in a period of time, over days of different lengths, the methods used to calculate holiday entitlement remain unchanged following the ruling in Harpar Trust v Brazel.
Calculating Statutory Holiday Pay
Regulation 16 of WTR 1998 sets out provisions for what workers are entitled to be paid during statutory annual leave at a rate of a week’s pay for each week of leave, calculated in accordance with the complicated “week’s pay” rules contained in sections 221 to 224 of the Employment Rights Act 1996 (ERA 1996).
Before the judgment in the Harpur Trust v Brazel case, many employers opted to use the percentage method, which capped a worker’s holiday pay at 12.07% of the hours they worked. This was calculated on the basis that a standard working year is 46.4 weeks and 5.6 weeks of the year would be 12.07% and this method was much easier to use than the more complicated Calendar Year Method.
However, following the ruling in the Harpur Trust v Brazel case, employers should now consider using the Calendar Year Method instead, as defined in the WTRs and which states that a worker’s entitlement to holiday pay is one week’s pay for each week of leave.
Once an employer has established what constitutes a weeks’ holiday for a worker who doesn’t have regular working hours (see Calculating Statutory Holiday Entitlement above), they will be able to correctly calculate how much holiday pay the worker is entitled to using the Calendar Year Method.
To do so, they should calculate the worker’s average weekly earnings over the previous 52-week period, ignoring weeks where the worker hasn’t earned anything, and going back up to a maximum of two years if necessary to establish the relevant 52 weeks’ pay information. In circumstances where a worker hasn’t been with the employer for more than 52 weeks, the employer can take an average based on the time they have been working.
Do You Need Assistance?
The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on their legal obligations in respect holiday entitlement and pay to ensure compliance. If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.
There appears to have been very little movement on zero hours contracts and worker status reforms despite various consultations, published reviews, policy papers and the mention of a new Employment Bill in the 2019 Queen’s Speech.
The Good Work Plan
On 17 December 2018, the government published its policy paper, the Good Work Plan. This set out what the government described as “the biggest package of workplace reforms for over 20 years”. It built on the response given by the government to the Taylor Review in February 2018 and the government’s strategy was set out in three main themes:
Also included in The Good Work Plan were several commitments specifically relating to zero hours contracts including a right for those on zero-hours or other flexible contracts to request a more stable and predictable contract and making it easier for casual staff to establish continuity of employment.
In its Spring 2022 Labour Market Outlook survey of employers, the CIPD added several questions to the survey, specifically relating to the use of zero hours contracts, and on 11 August 2022 it published a new report titled Zero-hours contracts: Evolution and current status. The report, which suggests that the number of workers engaged on zero hours contracts is small, accounting for about 3% of total employment, and has changed little since 2015, reflects on how zero hours contracts are used and considers their benefits and drawbacks for employers and workers.
The report concludes by making four recommendations:
Introduce a right for variable hours workers to request a more stable contract or working arrangement after they have been employed for six months.
Create a statutory code of practice on the responsible management of zero hours workers, including a requirement to pay compensation if workers’ shifts are cancelled at short notice.
Improve labour market enforcement, including through the creation of a single enforcement body and a stronger focus on supporting employer compliance.
Abolish worker status to help clarify and enhance employment rights for zero hours workers and more widely.
Employment Status Reform
Employment status was the subject of a standalone consultation in February 2018 and was also one of the key areas looked at in the Taylor Review. The Taylor Review proposed that the definition of “worker” needed to be clearer and more consistent, and that workers who were not employees should be renamed in the legislation as “dependent contractors”. It also proposed that there should be less emphasis on personal service, and more emphasis on control, in defining the relationship between an employer and a dependent contractor. This is because of concern that employers are putting a right of substitution into contracts in order to defeat arguments over worker status.
A commitment to refine employment status tests and for an online status tool to be developed were included in the government’s policy paper, The Good Work Plan, and the government suggested that it would “legislate to improve the clarity of the employment status tests, reflecting the reality of modern working relationships”.
However, the government response to the standalone consultation was not published until July 2022, and when it finally appeared it had very little to say about how it intended to produce the clarity of the employment status tests and it suggested that the benefits of creating a new system would be outweighed by the risks associated with legislative reform.
In July 2022, the government confirmed that it would not be reforming legislation in this area or aligning the employment law and tax status tests (there is no third category of “worker” for tax purposes). It instead published new guidance designed to improve clarity around employment status, which comprises three parts:
The guidance is non-statutory and does not change the legal position. The introduction to the detailed status guidance emphasises that only a court or tribunal can make a final decision on employment status for employment rights purposes.
The Employment Bill
The recommendations in the CIPD report mirror those that were previously set out in previous reviews and the Good Work Plan in 2018, and it was expected that the much-awaited Employment Bill announced in the Queen’s Speech in December 2019 would see many of the recommendations implemented.
On 23 March 2021 the government confirmed that the Employment Bill would not be introduced in that parliamentary session and that it would be introduced when parliamentary time allows. There was no mention of the Employment Bill in the two subsequent Queen’s Speeches (May 2021 and May 2022) and no timeframe for when the Bill may be introduced has been provided.
On 14 June 2022, Lord Callanan, Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (BEIS), reconfirmed that the Employment Bill will be delivered “when parliamentary time allows”, and suggested that the government is considering alternative options for delivering its manifesto commitments outside of the anticipated Employment Bill.
Whether the government finds time to move forward with its Employment Bill remains to be seen but, in the meantime, the unresolved issues surrounding zero hours contracts and employment status will continue to present challenges for employers and workers alike and resolving disputes in these areas may ultimately be up to the courts and tribunals.
Do You Need Assistance?
The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers to ensure compliance with a broad range of employment law issues. If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.
New UK regulations allow Agencies and Employment Businesses to supply temporary workers to cover workers taking industrial action.
Revocation of Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003
On 21 July 2022, the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852) (the Regulations) and the Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022 (SI 2022/699) (the Order) and came into force in Great Britain.
The 2022 Regulations revoke regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319) which previously prevented an agency or employment business from supplying temporary workers to perform duties normally performed by a worker who is on strike or taking official industrial action, or the duties normally performed by any other worker who has been assigned to cover a striking worker.
The Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022
The 2022 Order amends section 22(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 to increase the limits on the maximum damages award which may be made against a trade union where industrial action is found to be unlawful. With effect from 21 July 2022, the limits are increased as follows:
Less than 5,000 members: £40,000 (previously £10,000).
5,000 to 24,999 members: £200,000 (previously £50,000).
25,000 to 99,999 members: £500,000 (previously £125,000).
100,000 members or more: £1,000,000 (previously £250,000).
The new limits do not apply to any tort proceedings which relate to an act that began or occurred before 21 July 2022. The explanatory note states that the increases take into account RPI changes since the limits were set in the Employment Act 1982.
The trade union Unison has indicated that it will seek judicial review of the Regulations.
Do You Need Assistance?
The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers to ensure compliance with a broad range of employment law issues. If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.
Despite the calls from various charities and a recently published report from the House of Commons Women and Equalities Committee (WEC), legislative reform looks unlikely.
A recent survey undertaken by the Fawcett Society, a charity campaigning for gender equality and women’s rights, which was commissioned by Channel 4 for use in its documentary ‘Sex, Myths and the Menopause’, found that a majority of women (77%) find at least one menopause symptom ‘very difficult’, while 44% of women experience three or more symptoms that are severe.
The House of Commons Women and Equalities Committee (WEC) Report
On 28 July 2022, the House of Commons Women and Equalities Committee (WEC) published a report, Menopause and the workplace that emphasises there is much that employers should do to help employees, noting the risk of discrimination claims and reputational damage. Solutions include practical adjustments, additional flexibility, and fostering greater respect and understanding of the menopause.
The WEC report calls on the UK government to appoint a Menopause Ambassador to champion good practice, produce model menopause policies and trial specific menopause leave with a large public sector employer. The model policies should include as a minimum: how to request reasonable adjustments and other support, advice on flexible working, sick leave for menopause symptoms, and provisions for education, training and building a supportive culture.
While not supportive of mandatory menopause policies, the WEC report expresses disappointment that the Employment Bill has still not materialised and urges the government to bring forward legislation before the end of the current Parliament to make the right to request flexible working a day-one right. It also calls on the Health and Safety Executive and the Equality and Human Rights Commission to provide guidance on menopause within the next six months.
Noting that the current law does not specifically protect menopausal women, the report considers it unsatisfactory that they must frequently present themselves as suffering from a disability to make an effective claim. It calls on the government to “immediately” commence section 14 of the Equality Act 2010 (EqA 2010) which would allow dual discrimination claims, and to consult within six months on making menopause a protected characteristic, including a duty to provide reasonable adjustments for menopausal employees.
The UK Government Response
The UK government has published its response to the independent report, Menopause and the workplace: how to enable fulfilling working lives on 18 July 2022 and the First Women’s Health Strategy for England on 20 July 2022, and in doing so has confirmed that it does not intend to make any changes to the EqA 2010, but it has appointed a Women’s Health Ambassador for England who will sit on the newly established UK Menopause Taskforce.
Menopause and UK Discrimination Laws
Given the UK government’s response, it seems unlikely that the WEC’s calls for legislative reform will be taken forward but considering that the findings of the Channel 4 commissioned survey found that 44% of menopausal women in employment say their ability to work has been affected by their symptoms and 8 in 10 menopausal women say their workplace has no basic support in place for them, it seems clear that many employers will need to revisit their existing procedures for supporting staff affected by the menopause to avoid potentially costly discrimination claims.
In some cases, the menopause could be considered a disability under existing UK discrimination law and if someone is disabled, their employer must make reasonable adjustments to reduce or remove any disadvantages they might experience because of it.
Although the menopause is not currently a specific protected characteristic under the Equality Act 2010, an employee or worker who is put at a disadvantage and treated less favourably because of their menopause symptoms could potentially have grounds for a discrimination claim if the less favourable treatment is related to a protected characteristic, such as age, disability, or sex.
Do You Need Assistance?
The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers to ensure compliance with a broad range of employment law issues. If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.
Since its introduction in May 2018, the GDPR (General Data Protection Regulations) have been a complex and burdensome piece of legislation that many UK employers have struggled with but with the freedoms afforded to the UK in a post-Brexit environment, the UK Government has seized the opportunity to update and simplify the UK GDPR and Data Protection Act 2018 (DPA 2018) with a view to reducing burdens on organisations, while still maintaining high data protection standards.
The Data Protection and Digital Information Bill (Bill 143 2022-23)
On 18 July 2022, the much-anticipated Data Protection and Digital Information Bill (Bill 143 2022-23) was introduced into Parliament, following publication of the government’s response to its consultation, Data: a new direction.
The Bill aims to introduce more flexibility and makes provision for a variety of measures relating to personal data and other information, including digital information.
There are numerous proposed changes, which include:
Reforming the ICO.
Changes to PECR, relating to cookie rules, unsolicited direct marketing and communications security (for example, network traffic and location data).
Clarification of the rules on international transfers and cross-border flows of personal data.
Establishing a framework for the provision of digital verification services.
Changes to Part 3 (law enforcement) and Part 4 (processing by the intelligence services) of the Data Protection Act 2018.
Changes to police use of biometrics.
Explanatory notes (Bill 143 EN 2022 23) were also introduced into Parliament, although they do not form part of the Bill and have not been endorsed by Parliament.
The second reading is scheduled to take place on 5 September and further stages will be announced on Parliament’s Stages webpage.
Do You Need Assistance?
The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on their legal obligations in respect data protection to ensure compliance. If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.
The Supreme Court decision in Harpur Trust v Brazel has major implications for thousands of employers, changing the way holiday pay is calculated for staff who work irregular hours on permanent contracts.
On 20 July 2022, the Supreme Court delivered its judgment in Harpur Trust v Brazel, rejecting Harpur’s appeal and upholding the decision of the Court of Appeal ruling that the percentage method for calculating holiday pay was unlawful.
Background in the Harpur Trust v Brazel Holiday Pay Case
Mrs Brazel is a visiting music teacher who continues to work at a school run by the Harpur Trust (Harpur). She is employed by Harpur under a permanent contract on a zero-hour basis. Harpur is not obliged to provide a fixed minimum amount of work and she is paid only for the amount of work carried out and Mrs Brazel works mainly during school term-time.
The length of the school terms varies from year to year but is between 32 and 35 weeks. She is a part-time worker in two senses, firstly, that she does not work a full working week and, secondly, that for large parts of the year (during school holidays) she does not work for Harpur at all. It is only this second type of part-time working with which this case is concerned.
She is entitled to 5.6 weeks’ paid annual leave (both under her contract and statute), which she is required to take during school holidays. As the school holidays are far longer than this, no particular weeks are designated as statutory holiday, but by agreement Harpur makes three equal payments in respect of holiday at the end of each term of 12.07% of her usual pay; a method referred to as the ‘Percentage Method’.
Mrs Brazel submitted an employment tribunal claim, asserting that the 12.07% approach bears no relation to the calculation required by the WTR 1998.
The Employment Tribunal (ET) Decision
Initially, the Employment Tribunal dismissed Mrs Brazel’s claims. It found that there had been no unlawful deduction of wages as a result of the application of the 12.07% calculation. It held that a principle of pro rating should apply, and that the statutory scheme should be read down for part-time workers who worked fewer than 46.4 weeks per year so that payment was capped at 12.07% of annualised hours. The tribunal found that words could be read into regulation 16 of the WTR 1998 to that effect.
Employment Appeal Tribunal (EAT) and Court of Appeal Decisions
Mrs Brazel appealed to the EAT in relation to the correct calculation of holiday pay only. The EAT upheld the appeal, finding that the tribunal had erred in capping her holiday pay at 12.07% of annual earnings. The EAT held that there was no requirement in the WTR to pro rate holiday pay for part-time employees to ensure that full-time employees were not treated less favourably. The tribunal had overlooked the principle that part-time workers were not to be treated less favourably than full-time workers and that there was, as yet no principle to the opposite effect. It was emphasised that the wording in the Working Time Regulations 1998 was clear. This is that a worker on a permanent contract and engaged for a whole year has an entitlement to 5.6 weeks’ holiday.
Harpur appealed this decision to the Court of Appeal. They believed that they must reduce their teacher’s holiday entitlement so these workers wouldn’t be entitled to holiday pay that may exceed that of full-time staff. The Court of Appeal dismissed their appeal, and the case was taken to the Supreme Court.
The Supreme Court Decision
The Supreme Court agreed with the Court of Appeal and dismissed the appeal unanimously.
Nowhere in EU or UK law did it state that holiday pay should be pro-rated for those who do not work every week of the year. It did not matter that this would give more holiday pay to these workers than those working all year.
The Supreme Court reaffirmed that all workers are entitled to 5.6 weeks’ paid annual leave per year and that the correct method of calculating holiday pay for “part-year’ workers should be based on average pay, ignoring weeks where an individual does not earn anything. This is the case, even if this means individuals receive a greater proportion of holiday pay than full-time workers. It was found that there is no legislative provision which means that part-timers cannot be better off than comparable full-time workers.
Implications for Employers
This case is important for the leave entitlement of every worker in the UK with no normal working hours. In essence, the decision means that all zero-hours employees who do not work a full year must have their holiday calculated in this way and not by the application of the 12.07% formula.
Although this particular case concerned a worker who was permanently engaged to work only part of the year and was therefore limited only to part-year workers on permanent contracts, it is likely that other categories of worker may also try to rely on the decision and that similar claims from these types of workers will follow.
Considerations For Employers
Employers who currently use the 12.07% approach to pay holiday to their zero hours staff with permanent contracts should analyse their potential exposure and consider their options. It is clear that holiday pay should be calculated by assessing a week’s pay and multiplying that by 5.6.
How the 5.6 weeks’ holiday entitlement itself should be calculated for such workers (particularly those who do not work term-time only and who take enough leave to satisfy the WTR 1998 in any event), is still not clear. Employers will have to take a pragmatic approach and it is expected that many will continue to use the 12.07% approach to calculating the holiday entitlement until further case law provides more clarity.
Do You Need Assistance?
The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on their legal obligations in respect holiday entitlement and pay to ensure compliance. If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.
We look at the issues arising from both short-term and long-term absences and the steps employers can take to manage staff absence effectively and legally.
In the UK, the total economic cost of sickness absence, lost productivity through worklessness, and health-related productivity losses, are estimated to be over £100bn annually.
Incapacity for work is generally understood to mean that a person is not fit, through illness or injury, to perform their duties. There is a statutory definition of incapacity, for the purposes of statutory sick pay (SSP).
The main issues an employer will need to consider when dealing with sick employees include:
Entitlement to SSP and/or contractual sick pay, including deciding whether qualifying conditions have been met. Many employers will have sickness policies which set out relevant qualifying conditions.
The reason for absence, and whether it is genuine. This will entail ascertaining the true medical position and may involve seeking a medical report.
Whether the incapacity has been caused by workplace factors such as stress, bullying or an accident at work.
Whether the absence coincides with any periods of holiday.
Whether the absence is related to a disability and whether any reasonable adjustments may need to be made.
Considering whether the employee may be eligible for permanent health insurance or ill-health retirement.
Whether dismissal is appropriate and, if so, ensuring a fair process is followed.
Having an effective policy in place will help employers to deal with absences consistently and effectively as well as putting employees on notice as to the standards of attendance and reporting that the employer expects from them. This in turn will help reduce legal risk.
Sickness Absence Reporting Requirements
Employers should ensure that they set out the reporting requirements for staff who are unable to attend work due to illness or injury. Employers will have differing views on the time by which absence must be reported. In many workplaces it may not be practicable to notify anyone earlier than the normal opening time at that workplace. However, where staff work shifts, the workplace may be open long before the employee’s shift starts (or even open 24 hours a day) in which case the employer may require sickness to be notified at least an hour in advance of the start of a shift, so that cover can be arranged if necessary.
Evidence of Incapacity
For the purposes of company sick pay, an employer is free to choose what evidence of incapacity it requires. Many employers require self-certification for up to seven days’ absence, and a medical certificate thereafter, as this is in line with the statutory sick pay (SSP) requirements. For SSP purposes, an employer cannot require a doctor’s certificate for the first seven days of sickness absence. Whether they do so after that is largely up to the employer, but most do. Strictly speaking, employees need not self-certify absence of less than four days for SSP purposes, as SSP is not paid for the first three days of absence. However, an employer may still wish to ask for self-certification of shorter periods as part of its absence management strategy.
Employers can in theory require a doctor’s certificate for all absences as a pre-requisite of company sick pay, although this is rare. Many employers require self-certification. (See Practice note, Managing sickness absence: Evidence of incapacity.)
The “Statement of Fitness to Work” (or “fit note”, which replaced the old-style sick note in April 2010) enables GPs to certify that an employee is “not fit for work” or that they “may be fit for work” taking account of advice that the GP then sets out. This may include recommendations such as a phased return to work, altered hours or duties, or other adaptations. When presented with these statements, employers should generally hold a return-to-work interview to discuss any changes that may be needed.
Return to Work Interviews
Return-to-work interviews give an employer the opportunity to welcome a member of staff back to work. In addition:
They provide the opportunity to confirm the details of the absence for record-keeping purposes.
The provide an opportunity to discuss any changes that might be needed to facilitate a return to work.
In the case of someone who has had several short, intermittent absences (and who is unlikely to be on a phased return-to-work programme), they provide the opportunity to establish whether there may be any underlying health or other (for example, disciplinary) issues that the employer should investigate further.
An effective sickness absence policy can fulfil several purposes. First, it sets out the employer’s sick pay arrangements including the rates of pay and the requirements for notifying and providing evidence of incapacity. It is a legal requirement that terms and conditions relating to incapacity for work due to sickness or injury, including any provision for sick pay, are given to the employee in writing. This can be done either in the “principal statement” of employment terms given under section 1 of the Employment Rights Act 1996 (ERA 1996), or in a reasonably accessible document such as a staff handbook, referred to in the statement. (Section 1(4)(d)(ii), ERA 1996.).
Second, the policy provides a procedure for managing longer-term incapacity including obtaining medical evidence, considering alternatives for rehabilitating the employee into work (including any reasonable adjustments for disability under the Equality Act 2010), and ultimately providing a fair procedure for dismissal where this is the appropriate course of action.
Managing Long-term or Persistent Absence
The purpose of a sickness absence meetings procedure is for employers to address issues caused by illness, as well as staff being away from and not contributing to its business. Issues are likely to arise when it is believed that illness is not genuine or where repeated periods of absence or long-term absence are impacting on colleagues, departments, and the employer’s business.
The procedure needs sufficient flexibility to deal with each individual case. Employers should consider adjourning any meeting in the procedure to consider any new matters if they arise. As soon as a case is identified as a conduct rather than an ill-health issue, it should be transferred and dealt with under the employer’s disciplinary procedure.
While it would seem probable that the right to be accompanied does not extend to meetings which are not disciplinary in nature, including those relating to ill-health, providing the right to be accompanied and adding the discretion for the employer to exercise flexibility would be prudent. Whether, and to what extent, discretion is exercised can only be decided on a case-by-case basis.
Medical Examinations
Medical advice can:
Establish the reason for absence and whether any illness is genuine.
Indicate the likely length of continued absence.
Assess the effect of an illness on an employee’s ability to do their job, what they are capable of and what, if any, adjustments can be made to help them to return to work.
Assist in arranging a phased return to work from long-term sickness absence.
Establish whether an employee is likely to qualify for any employment benefits, such as permanent health insurance (PHI) or early ill-health retirement.
Highlighting the potential to ask for medical advice may put off employees who are minded to “fake” illness to take time off work. It also draws attention to the need to co-operate with the employer’s attempts to understand ill health absence.
The steps an employer must take when requesting a medical report (whether from a general practitioner, a specialist consultant, a company doctor, or an occupational health specialist), must take the impact of the Access to Medical Reports Act 1988 and data protection legislation into consideration.
Stage One: Initial Sickness Absence Meeting
The purposes of the first meeting will depend on the type of sickness absence being investigated and whether any potential conduct issues have arisen in the individual case.
Prior to convening the initial sickness absence meeting, full details of the absence record along with reasons should be made available to all participants. The employee should be made aware of the date and location of the formal meeting and the reasons for it. In addition, they should be informed of the right to be accompanied by a work colleague or trade union representative at the meeting.
In cases of long-term sickness absence, the central issues will be the nature of the employee’s illness, how much longer they are likely to be away and whether they are going to be able to return to their job. It may be too early to predict a return date and it may be decided to obtain medical advice (either from the employee’s and/or the employer’s medical advisers) on both this and the employee’s ability to resume their job/adjustments at this stage.
In cases of intermittent absences, the issue may be the cause of the employee’s absences and the likelihood of recurrence. An employer may need to explain the impact that the absences are having on the employee’s colleagues and on the employer’s business. It may be decided to obtain medical evidence on the nature of the employee’s illness, the likelihood of recurrence and any steps that can be taken to reduce recurrence.
A meeting can end with a summary of matters discussed and action that it has been agreed will be taken. This can then be confirmed in writing as detailed under the procedure.
Stage Two: Second Sickness Absence Meeting
After the first stage of the sickness absence procedure, the second stage provides for further meetings with a view to resolving difficulties caused by short-term intermittent absences and the return to work of an employee on long-term sickness absence.
The second stage of the procedure should be designed to be flexible, accommodating the individual characteristics of each case. The suggested purposes of the further meetings in the procedure can act as a checklist for employers, to ensure that they are considering those matters relevant to a fair and non-discriminatory dismissal (should it ultimately terminate the employee’s employment).
Stage Three: Final Sickness Absence Meeting
The third stage of the procedure is reached when meetings under the second stage have not achieved their intended aim (overseeing a long-term absentee’s return to work or the eradication of sporadic absences).
This meeting should provide the employer with an opportunity to review the action it has taken to achieve its aim, why they have not worked and whether there is any reasonable prospect that waiting any further will be productive. The meeting also provides the employee with the opportunity to put forward anything that they consider the employer should have done.
Otherwise, the final meeting is likely to result in the termination of the employee’s employment. The employer should check that all prior warnings that it is relying on in making the decision to dismiss are valid. Failure to do so may result in a dismissal being unfair.
Appeals
If the decision is taken to dismiss the employee, they must be informed of their right to appeal against this decision.
Do You Need Assistance to Manage Sickness Absence Effectively and Legally?
The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on their legal obligations to ensure compliance. If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.
Hybrid working is on the rise across the UK following the Covid-19 pandemic but are employers ready to address the range of legal and practical issues it creates?
What is Hybrid Working?
Typical hybrid work arrangements allow employees the flexibility to alternate between working in the office or remotely giving them the independence to choose how they can work best on any given day. Hybrid workers may work exclusively at home (on a full-time or part-time basis), divide their working time between home and their employers’ premises, or may work at home on an occasional basis. They may be mobile workers who use their home as an administrative base, or they might work away from the employers’ premises in purpose-designed centres or local hubs.
The Covid-19 pandemic certainly acted as a catalyst for hybrid working, forcing many employers to pivot to an alternative working model to continue trading through the lockdown but the trend towards flexible working continues despite the removal of lockdown restrictions.
In October 2021, we confirmed that the UK Government had published its proposals to reform the existing flexible working legislation to make the right to request flexible working a day one right and the government’s flexible working taskforce has since recommended that flexible working should be the default position for all workers post-pandemic, so it seems clear that hybrid working is here to stay.
Undoubtedly, there has been a steady increase in the number of hybrid workers who spend part of their time working from their workplace and part of their time working from a remote location, such as their home, and the results of a recent Acas survey on hybrid working show that 60% of employers surveyed have seen hybrid working increase following the COVID-19 pandemic. In addition, 52% have seen an increase in staff working from home full-time.
Hybrid Working: Considerations for Employers
The term “homeworker” is not defined in the Employment Rights Act 1996 (ERA 1996) but as the move towards more flexible working continues and the demand for homeworking or hybrid working increases, many employers will need to address a broad range of practical and legal issues. Key considerations for employers include:
The contractual and policy provisions, such as:
Content of section 1 and section 4 statements
Changing terms and conditions of employment
Hours of work
Salary and benefits
Expenses
Confidentiality
Equipment, data security and monitoring
Right to enter
Trial periods and a right to revert
The legal and practical considerations, including:
Reporting and appraisals
Data protection
Health & safety
Computers and display screen equipment
Insurance
Tax
Hybrid Working: Issues Employers Should Address
Employers introducing hybrid working arrangements or entering homeworking arrangements will need to address a variety of legal and practical issues, including:
Considering the need to tailor standard employment contract clauses to encompass homeworking or hybrid working.
Introducing new policies and reviewing existing policies to set out the arrangements and conditions for homeworking or hybrid working.
Taking appropriate measures to protect confidential information and personal data.
Reviewing the health and safety implications of the arrangements, including carrying out a risk assessment.
Deciding whether any special equipment should be provided.
Considering whether any special planning or insurance arrangements are required.
Deciding what arrangements should be made for the management and supervision of certain types of homeworkers and hybrid workers.
Identifying the tax consequences of homeworking and hybrid working.
Do You Need Assistance to Introduce Hybrid and/or Homeworking?
The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on their legal obligations to ensure compliance. If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.
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