To start, a brief reminder of the gradual removal of the Coronavirus Job Retention Scheme (“CJRS”):
- 1 July 2020: An individual who is furloughed can work for part of the week. The employer pays the employee for any time worked.
- 1 August 2020: The employer must pay the NI and pension contributions relating to a furloughed employee.
- 1 September 2020: The government will pay 70% of the furloughed employee’s salary (maximum of £2,187.50 per month). The employer must pay 10% (to bring the amount to a maximum of £2,500), and can pay 30% (to top up the salary to the full amount).
- 1 October 2020: The government will pay 60% of the furloughed employee’s salary (maximum of £1,875 per month). The employer must pay 20% (to bring the amount to a maximum of £2,500), and can pay 40% (to top up the salary to the full amount).
- End of October 2020: The Job Retention Scheme ends.
Although the courts are still largely closed, there have been several interesting rulings reported in recent weeks. We are taking a break from all things coronavirus-related, to look at other issues occurring in the world of employment and also to introduce a new HR consulting service to help support your business holistically.
Treating a disabled employee less favourably
If an employee is disabled, there is a requirement not to treat him/her less favourably in comparison to someone who is not disabled. That is a well-established part of discrimination legislation. However, is it possible to discriminate when treating a group of disabled employees less favourably in comparison to a different group of disabled employees? The Advocate general believes that is.
In the case of VL  the employer’s contributions to a disability fund would be reduced if it employed more disabled employees. It decided, therefore, to offer a £60 incentive to disabled employees to register as disabled if they had not already done so. Disabled employees who were already registered did not get any incentive. A disabled employee who was already registered argued that this was discriminatory treatment.
The opinion of the Advocate General, which is usually followed by the Court of Justice of the European Union (but not always), is that this is still discrimination.
- Do not link any bonus, incentives or similar awards to disability or any other protected characteristic.
- If you have a scheme that does link some sort of award to a protected characteristic, get in touch so that we can discuss it with you and determine whether it might be a problem.
Problems can occur in the workplace when two employees are in a relationship, and this then comes to an acrimonious end – which is what happened in Bacon v Advanced Fire Solutions Ltd . Mrs Bacon was married to one of the directors of the company, when she started divorce proceedings. A number of difficult situations arose, and she was eventually suspended pending investigations into alleged misuse of IT equipment. She argued that she had been treated less favourably because of her relationship to the director. Her claim of discrimination on the grounds of marital status was successful.
- Consider if it would be useful putting a ‘relationship policy’ in place in your organisation. It would be difficult to ban relationships between employees, but you could have a policy of them not working closely together - if the size of the organisation allowed for this.
- Note that discrimination legislation covers treating someone less favourably because they are married or in a civil partnership, but it does not cover someone being treated less favourably because they are single, engaged or co-habiting.
Unacceptable behaviours linked to a disability
All organisations need to have rules, but if they are broken it is important to consider if there is a link to a disability that the employee might have, as was the case in Austin v Leeds Teaching Hospitals NHS Trust .
The employee suffered from depression, anxiety and the chronic pain disorder fibromyalgia. She checked her own medical record, and her mother’s record, on three occasions. She was suspended, pending a disciplinary investigation (because checking medical records was not allowed) and persistently pestered her line manager to find out what was happening. Eventually she was dismissed.
It was found that her dismissal was an act of disability discrimination. Regularly checking the records and pestering her manager were a result of her anxiety and other disabilities, and therefore she had been treated less favourably. She was awarded £269,114 in compensation.
- Being disabled does not mean that employees can break rules, but it does mean that the employer should stop and consider whether the disability has caused the behaviour which is the focus of a disciplinary investigation.
- If an employee is disabled, as defined in the Equality Act 2010, there is a requirement to make reasonable adjustments to help the employee overcome any disadvantage experienced as a result of the disability. This could mean that a disabled employee has more warnings before any disciplinary action is taken – depending on whether the disability has caused the behaviour under question.
- Before deciding to dismiss a disabled employee (or one that could potentially fall within the definition of disabled) contact us so that we can have a chat about any possible difficulties with the proposed action.
Employee accused of falsifying documents
If employees are asked to provide documents as part of an employment checking process most will have the necessary paperwork. However, some employees do not have the ‘standard’ documents, and it is important that they are not accused of doing anything wrong, as happened in the case of Sims v The London Borough of Lewisham and another .
The employee worked at a school and was asked to complete a Disclosure and Barring Service (DBS) check. In the 15 years that she had worked at schools she had completed a number of DBS checks, and she had completed a DBS check when she had first joined this school.
Her documents were more complicated than standard, because she had been given an ‘Indefinite Leave to Remain’ stamp in her American passport, but the passport had expired. This meant that it was not possible to complete the DBS process, because the system would not accept an expired passport. She was suspended, due to a suspicion that she did not have the right to work in the UK and was accused of being an illegal immigrant. She did have the right to work in the UK, and successfully claimed race discrimination due to the accusations that the school made against her.
- If an employee cannot produce the correct documentation to show that they have the right to work in the UK, you cannot continue to employ them. However, if there is confusion about the documentation do not accuse them of not having the right to work in the UK but help them to find out what they can do to get the correct documentation.
- Do not accuse an employee of being in the UK illegally. If you are concerned, contact the Home Office for further advice.
- If you are in doubt about the right of an employee to work in the UK you should suspend them from work but make it clear that this is a temporary situation whilst the correct documentation is obtained.
- If you are all unclear whether an employee is entitled to work in the UK, please contact us for advice.
An appropriate working atmosphere
We spend a lot of our time at work, and it is important that we have some fun whilst we are there. However, any fun and ‘banter’ in the workplace must be appropriate.
In Robinson v Mind Monmouthshire Ltd  the employee witnessed colleagues mimicking people with physical disabilities in the office. She reported what she saw to her line manager but chose not to make a formal complaint. Others in the office worked out who had raised the issue, and she was ostracised. The situation exacerbated her mental health problems, and she eventually resigned. She successfully claimed constructive dismissal due to her raising a protected disclosure and disability discrimination. The Employment Tribunal found that the atmosphere in the office was one of frequent bad language and behaviour, which overstepped the boundaries of acceptability.
- Different people have different definitions of acceptable behaviour, but if you witness anything in the office that makes you (or others) uncomfortable you should intervene and stop it from continuing.
- If an employee does raise a concern about behaviour in the office deal with it promptly, and then have regular catch up meetings with the employee to check that s/he is not receiving any nastiness because of raising the concern.
- When an employee raises a concern do all that you can to protect the anonymity of the employee.
The debate about employment status does not go away, and we have had the ruling of the Court of Justice of the European Union in the case of B v Yodel Delivery Network Ltd . This case was specifically looking at the definition of a worker for the purposes of the EU Working Time Directive. B delivered parcels for the company and worked under an agreement which clearly stated that he was a self-employed independent contractor. He had some flexibility over when he worked, and the hours that he worked. He was able to work for other companies. He could sub-contract the work, or ask someone to do the deliveries for him, as long as they were suitably qualified.
B argued that he was a worker because he had never actually exercised his right to sub-contract work. The Court of Justice was asked whether the ability to get someone else to do the work should only be relevant if this right had been used by the individual.
His claims failed. The Court of Justice said that an individual engaged as a self-employed contractor cannot be classed as a worker if: they have the discretion to get someone else to do their work; they have the choice of whether to do the work; they can provide services to a third party; and they can fix their own hours of work. In this particular case they noted that B had some flexibility over his working hours, but the deliveries still had to be completed within a certain time slot.
- If you do allow an individual to get someone else to do work for them, and this right is used it is unlikely that the individual will be a worker or an employee.
- If an individual can choose when to work, and can turn down work, it is unlikely that they will be an employee.
- However, each situation depends on the detail of the specific scenario, so if you are at all unsure about the employment status of an individual contact us to discuss the specifics in more detail.
A final word – HR Consultancy services
Finally we would like to introduce Natalie Saunders, who has just joined Clarion as Director of HR Consulting. A new service line for our firm, the HR consultancy team has been introduced in response to demand from our clients for HR expertise that sits outside the traditional remit of legal advice. The team offers flexible, cost-effective and hands-on HR support on an ongoing basis (for example on a retainer) or for specific projects.
Natalie is an employment lawyer by background, who has founded and grown her own business and has also held senior-level roles in HR in a number of organisations. She works closely with business owners, HR directors and their teams to facilitate organisational success by:
- diagnosing and resolving issues with recruitment and retention;
- understanding your business plans and helping shape the workforce you need to deliver those – for example
- identifying capability gaps and addressing those, creating new roles and recruiting for them, putting a shared service model in place and shifting your operating model (outsourcing or in-sourcing, increased use of agency workers);
- supporting enhanced business performance and productivity through increased employee engagement;
- shaping and delivering projects that form part of your people strategy, such as well-being and mental health and equality, diversity and inclusion;dealing with time-consuming and potentially sensitive “people problems” by carrying out investigations, disciplinary and grievance hearings and appeals;
- optimising HR processes to make them more efficient and automated;
- planning for, communicating and implementing the people aspects of organisational change projects such as outsourcing, restructuring / redundancies and business sales and acquisitions;
- creating clarity about what “good performance” looks like and ensuring those standards are “baked into” the employee life cycle, from recruitment to appraisals, learning and development interventions and performance management;
- identifying potential derailers of outstanding individual and team performance and working to resolve those, by using psychometrics and other diagnostic tools and undertaking coaching; and
- implementing an approach to reward (base pay, performance-related pay / bonuses and other incentives such as share options) and recognition that aligns to and supports your business objectives.
If you are interested in HR Consultancy, we are offering our clients and contacts a free, no-obligation initial exploratory conversation. You can contact Natalie on 0113 733 2488 or at firstname.lastname@example.org.