Following a tribunal with claimant Mr. Smith and respondent Mid Essex Hospital Services NHS Trust, it was revealed that Mr. Smith was awarded a staggering £127,389.75 for unfair dismissal and detriment for having made disclosures about the NHS hospital.
The award consisted of:
- Basic award £10,604.37
- Compensatory award £82,856.69
- Injury to feelings £22,000
- Pension loss £11,928.69
Back in 2013 and 2014, Mr. Smith made protected disclosures about medication and patient care issues. He also claimed that employees were being bullied and harassed by managers and weren’t given adequate rest during their shifts under the Working Time Regulations. Following this, he attended a meeting with the head of nursing and an HR representative. This amounted to claims that there was a ‘witch hunt’ against him.
Mr. Smith went on to make further whistleblowing claims about concerns about staff recruitment and retention payments, rest breaks, allegations of bullying and harassment, and a lack of equipment in operating theatres. The NHS concluded that he was showing ‘disruptive behaviour’, and following a suspension for gross misconduct in July 2014, he was dismissed a year later.
The initial employment tribunal in 2017 found that Mr. Smith had been unfairly dismissed. The respondent went on to appeal the tribunal as they didn’t believe that Mr. Smith’s ‘nuisance’ factor being the real reason for his dismissal was considered. The judge concluded that the dismissal and appeal officers were aware of the protected disclosures, and the fact that Mr. Smith was whistleblowing meant he was a nuisance because of the protected disclosures, and they dismissed him on those grounds.
What is whistleblowing?
Whistleblowing is when an employee reports certain types of wrongdoing, usually something that they’ve seen in the workplace that is in the public interest. Concerns may be raised about something that has happened in the past, present or something that is believed will happen in the future.
Whistleblowers (if they are employees, trainees, agency workers or members of a Limited Liability Partnership) are protected by law under the Public Interest Disclosure Act 1998. If they are dismissed because of this, they may claim unfair dismissal. Complaints that enable whistleblower’s protection by the law include:
- Criminal offences, both on an individual and company basis
- Danger to someone’s health and safety
- Risk or damage to the environment
- A miscarriage of justice
- Covering up wrongdoing
What can employers do?
Employers should have a whistleblowing policy linked to the disciplinary policy and ensure that employees are made aware that if they make a protected disclosure they must not be subjected to detriment or dismissal.
All managers should be trained and have a strong understanding of how to handle a situation where an employee voices concern; if this is handled incorrectly the consequences can be very costly.
If you require any help on setting up or reviewing your policies, or are going through a whistleblowing claim, get in touch with one of our friendly employment law advisors on 0161 603 2156 / [email protected].
Announced in 2018, the Government’s Good Work Plan comes into force on 6th April 2020, affecting all employers. Employment status will be defined so the distinctions between employee, worker and self-employed are made clear and their rights transparent.
The Good Work Plan was devised in response to a review of modern working practices which was published back in July 2017. The review had 53 recommendations following the consideration of issues like the implications of new forms of work, the rise of digital platforms and the impact of new working models on employee and worker rights, responsibilities, freedoms, and obligations.
Extension of the right to a written statement of main terms (SMT) of employment
Current law: Employers must provide a written statement setting out the basic terms of employment to all employees within two months of the start of their employment.
New law: This statement must be given by day one of their employment. Also, the right to a written statement of main terms has been extended to include workers as well as employees. It must include:
- Information on the eligibility for paid leave
- Length and conditions of any probationary period
- Working hours and days and if they are variable
- Details of any payment and benefits and any training entitlement
The fine an Employment Tribunal can impose for failure to follow the new law or for denying rights has been increased and can now be up to £20,000.
The contract should be given at the Induction Meeting as a matter of good practice, so employers need to plan ahead in order that the necessary documentation can be given out.
Increase in the period over which holiday pay is calculated
Current law: The holiday pay of a worker who has irregular working hours is calculated by averaging the number of hours worked over the previous 12 weeks, known as ‘the pay reference period’.
New law: The pay reference period will be 52 weeks or, for those workers who have been working for less than 52 weeks, the total number of weeks they have worked. This will mean that, for example, employees who have large seasonal alterations in working hours will not be penalised in calculating their holiday entitlement. The calculation must be on the basis that overtime, shift allowances, commissions and tips payable are included in the figures. The HMRC will now become involved in enforcement of holiday pay entitlements.
Increased protection for agency workers
Current law: Agency workers are entitled to be paid the same rates as permanent employees after 12 weeks unless they are working under specific contractual arrangements under which they receive a minimum level of pay when they are between assignments, referred to as the ‘Swedish derogation’ model.
New law: The above distinction will be abolished and the right to comparable pay will apply to all agency workers after 12 weeks. The government has also introduced an obligation to provide agency workers with a statement setting out the terms of employment relating to their contract, pay rates and pay arrangements. Those who want more certainty will be able to request a more fixed working pattern from their employer after 26 weeks of service.
Increase in the ‘break of service’ period
Current law: Absence of one week or more is enough to break continuity of service. This is seen as a barrier to fairness in the employment relationship. For example, if there was a delay in supply of essential components in a manufacturing business, which caused the employer to dismiss employees, service would be quickly broken after a week, and it may be that different employees are recruited to do the work when production began again. Continuous employment would drop back to zero.
New law: The period of not working between assignments over which service is broken now increases to four weeks, to grant protection to workers who work irregular working patterns and enable them to accumulate employment rights.
Right to request a ‘stable’ contract
Current law: None.
New law: The government has committed to introducing a right for all employees and workers to request a more stable working pattern, subject to having acquired at least 26 weeks’ service.
These changes are imminent, and further changes are planned for the future. If you’re unsure on what you need to do as an employer, get in touch now via email on [email protected] or call 0161 603 2156.
The current situation around Coronavirus is causing major worry and uncertainty amongst a lot of employers.
Many businesses are now struggling. Whether it’s through a loss of employees due to illness, self-isolation and looking after dependants, or a loss in demand and customers.
This guide will take you through some of the most commonly asked questions that employers are raising around lay-offs and short-time working, and how to handle them.
What does laying off or short-time working entail?
Laying off is when the employer asks an employee to cease working for more than 1 day, whilst retaining them as an employee.
Short time working occurs when an employee’s hours are reduced.
I would like to implement lay-offs/short-time working. What do I do?
In some situations, an employer may need to temporarily close their business, or ask employees to reduce their contracted hours. Unless it is stated in an employee’s contract or is agreed otherwise, they still need to pay their employees for this time.
If the employer thinks they’ll need to do this, it’s important to talk with their employees as early as possible and throughout the closure.
Do I have a right to lay-off my employees?
There is a general right at common law to tell most employees not to turn up for work but there is no general right not to pay them because work is not available.
In what circumstances can I lay-off my employees?
This can be done where there is an express contractual right agreed between employer and employee.
Alternatively, there may be an agreement covering the issue between the company and the union, or a national agreement for the industry which the employer follows. This agreement is only applicable if it is incorporated into the individual employee’s contract of employment.
The right of an employer to lay off may also be implied if it can be shown (by clear evidence) that it has been established over a long period by custom and practice.
Can employees be laid off if there are no express or implied rights to do so?
Both parties may agree to alter the contract terms so that the lay off is not a one-sided act of the employer, but by mutual agreement e.g. where the only alternative is redundancy.
Do employees have a right to payment during a period of lay-off?
Employees can be laid off without pay where there is a specific term in their contract allowing the employer to do so.
They may be entitled to a statutory guarantee payment from the employer. Payment is limited to a maximum of 5 days in any period of 3 months and the daily amount is subject to an upper limit which is reviewed annually.
What happens if there is a collective agreement providing for guarantee payments?
In these circumstances, on the application of all parties to the agreement, the Secretary of State can make an exemption order excluding employees from the statutory right to a guarantee payment.
An exemption order will be granted only where the collective agreement or order contains guaranteed pay provisions which are at least as favourable overall as the statutory scheme.
How long can a lay-off or short-time working last?
There is no limit as to how long it can last.
Can a claim be made for a redundancy payment because of lay-off or short-time working?
If an employee is either laid off or put on short-time working (receiving less than half a week’s pay) for 4 consecutive weeks – or for 6 weeks in a period of 13 weeks – because of a shortage of work, the employee can give the employer written notice that they are claiming for redundancy payment.
What is a wrongful lay-off?
If there is no contractual right to lay-off without pay but the employer does so, they will be deemed to be in breach of contract.
The employee may:
- Choose to accept the breach of contract and treat the contract as continuing, while claiming a statutory guarantee payment.
- Sue for damages for breach of contract.
- Claim at an Employment Tribunal that there has been an unlawful deduction of wages.
- Claim that the employer’s action amounted to a dismissal and claim for unfair dismissal and/or, if eligible, redundancy pay.
What do I need to be aware of as an employer regarding lay-off and short-time working?
- Lay-offs and short-time working can be a useful way of handling temporary work shortages. However, you should understand that you have no right unilaterally to lay an employee off or to put them on short-time working, unless there is a term in the employment contract allowing you to do so.
- You should take into account that an employee who is wrongfully laid off or put on short-time working may resign and claim constructive dismissal, complain that an unauthorised deduction from wages has been made or sue for damages for breach of contract.
- Where an employee is laid off or put on short-time working, they may be entitled to statutory guarantee payments in respect of up to five workless days in any three-month period.
- You may be liable to pay statutory redundancy payments to employees who comply with complex notice requirements having been laid off or kept on short-time working for specified periods of time.
If you are looking for further advice on this matter, or want guidance on a current matter, please get in touch on 0161 603 2156 / [email protected] and one of our Employment Law experts will be in touch.
What is Coronavirus disease (COVID-19)?
Coronavirus Disease (COVID-19), is a new respiratory virus first identified in Wuhan, Hubei Province, China. A novel coronavirus (CoV) is a new coronavirus that has not been previously identified.
What is the source of COVID-19?
Coronaviruses are a large family of viruses. Some cause illness in people, and others, such as canine and feline coronaviruses, only infect animals. Rarely, animal coronaviruses that infect animals have emerged to infect people and can spread between people. This is suspected to have occurred for the virus that causes COVID-19.
What is the risk of coronavirus in the UK?
The UK Chief Medical Officers have raised the risk to the public from low to moderate.
Health professionals are working to contact anyone who has been in close contact with people who have coronavirus.
What countries have a higher risk of the coronavirus?
Countries and areas with a higher risk of coronavirus are Cambodia, China, Hong Kong, Iran, Italy, Japan, Laos, Macau, Malaysia, Myanmar (Burma), Singapore, South Korea, Taiwan, Tenerife (only the H10 Costa Adeje Palace Hotel), Thailand and Vietnam. If an employee has visited one of those places in the last 14 days they should:
- Stay at home and avoid close contact with other people
- Stay away from GP surgeries, pharmacies and hospitals
- Use the 111 NHS online coronavirus service to find out next steps
What are the symptoms and complications that COVID-19 can cause?
Current symptoms reported for patients with COVID-19 have included mild to severe respiratory illness with fever, cough, and difficulty breathing. These symptoms do not necessarily mean you have the illness. The symptoms are similar to other illnesses that are much more common such as cold and flu.
How does the virus spread?
This virus probably originally emerged from an animal source but now seems to be spreading from person-to-person. It’s important to note that person-to-person spread can happen on a continuum. Some viruses are highly contagious (like measles), while other viruses are less so. It’s not clear yet how easily COVID-19 spreads from person-to-person. Similar viruses spread in cough droplets. It’s very unlikely it can spread through things like packages or food.
Is there a vaccine?
Currently, there is no vaccine available to protect against COVID-19.
What are the treatments?
There is no specific antiviral treatment recommended for COVID-19 infection. People infected with COVID-19 should seek medical assistance.
Can I prevent an employee from travelling to an affected area?
In relation to work travel, employers may want to avoid, and may well be able to prevent, employees travelling to highly affected areas, although this will need to be handled sensitively and will require a risk assessment.
Making clear the potential risks to employees and delaying travel until more is known may be a sensible approach and employers should consider engaging with their workforce to address the issue and think carefully about any policy to be adopted. Any policy that is applied must not have an unjustifiable discriminatory impact and should apply fairly across the workforce.
From a practical perspective, it may be that interim measures are the solution. For example, is it possible for the employee to carry out their work via Skype or video conferencing for a limited period?
The issue is obviously trickier when an employee wishes to travel for personal reasons. Whilst an employer cannot prevent an employee exercising their right to spend their holiday time where they choose, employers can reaffirm the government guidance, reiterate their obligation to protect the welfare of all employees and ask employees to keep them informed of any travel plans or other circumstances which may put the employee at increased risk of exposure to the coronavirus.
One of my employees is ill. How do I know if it is COVID-19 or something else like the flu?
If an employee becomes unwell in the workplace and has recently come back from an area affected by coronavirus, they should stay at least 2 metres (7 feet) away from other people, taking the following measures to limit risk of spread:
- Avoid touching anything
- When coughing or sneezing please do so into a tissue and put it in the bin, or if you don’t have a tissue, cough and sneeze into the crook of your elbow instead of your hand
- Immediately inform their line manager and leave the building
- They must then phone NHS advice on 111.
- If they’re seriously ill, injured or their life is at risk then call 999 and ensure they tell the operator their symptoms and which country they’ve returned from in the last 14 days
- It is important that they communicate with the business while they’re absent from work, updating them on their condition so you can take the necessary steps within the workplace to ensure colleagues’ safety
I’m worried about an employee who might be ill or might have been exposed to COVID-19. What should I do?
If an employee has flu-like symptoms, you can encourage them to ring 111 and seek medical advice.
How to avoid catching or spreading coronavirus
Do
- Wash your hands with soap and water often for at least 20 seconds
- Wash your hands when you get home or come into work
- Use hand sanitiser gel if soap and water are not available
- Cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze
- Put used tissues in the bin straight away and wash your hands afterwards
- Try to avoid close contact with people who are unwell
Don’t
- Touch your eyes, nose or mouth if your hands are not clean
Is it necessary for surgical masks to be worn?
Masks are only recommended for those with symptoms (fever, cough, shortness of breath, runny nose), to reduce the spread to others. The evidence regarding using masks for prevention is mixed. Leading public health authorities are not currently recommending masks for prevention of this virus. We understand that many individuals are concerned about exposure in public, the best prevention we know of is good personal hygiene habits.
My employee has called in sick. What should I do?
If your employee is unwell and unable to attend work, please follow the absence reporting procedure. This will be treated as sick leave and the usual sick pay policy will be followed, however, if they have genuine concern that it may be coronavirus and can provide a doctor’s note confirming that they were suffering with flu-like symptoms then statutory sick pay can be paid (if they qualify for SSP) for the duration of their sick note, and if you have under 250 employees, the government will reimburse the employer for the first 14 days of sick pay.
What should I pay my employees if I send them home?
If an employee is not sick but you tell them not to come to work, they should get their usual pay.
Are my employees entitled to sick pay if they self-isolate?
If they choose to or you send them home as a precautionary measure, they are entitled to statutory sick pay (SSP) for the first 14 days of self-isolation. The government have announced that small businesses with up to 250 employees will be reimbursed for SSP that they pay out for these purposes.
I need to close my business. Do I have to pay my employees?
Yes, unless it is stated in their contract or agreed otherwise.
Can I make my employees use their holiday entitlement during the business closure?
Yes, only if you inform your employees at least twice as many days before as the required holiday length. You should explain clearly why you need to close the business.
What medical evidence do my employees need?
In an attempt to keep people away from GP surgeries, employees can obtain a sick note through NHS 111.
I have self-employed staff. Will they get sick pay?
Self-employed people are usually not eligible for SSP, but the Government will now be making it “quicker and easier to get benefits” including those on a zero hours contacts, or those earning less than £118 a week.
I’m a small business owner. Will I have to cover the cost of my employees’ sick pay?
Under the new measures, the Government will meet the cost for businesses with fewer than 250 employees of providing SSP for 14 days. The step will provide over £2 billion for up to two million businesses.
Meanwhile, business rates will be scrapped for thousands of small businesses over the next year to help support small businesses during the COVID-19 outbreak.
Mr Sunak announced that businesses such as shops, cinemas, restaurants and music venues with a rateable value under £51,000 will not have to pay tax for the next financial year.
If you have any questions or need any further advice on this subject then please get in touch with one of our experts on 0161 603 2156 / [email protected].
There are an estimated 7,500 child deaths in the UK every year.
Since the Parental Bereavement (Leave and Pay) Bill received royal assent in 2018, as of April 2020 parents who lose a child under the age of 18, or suffer a stillbirth from 24 weeks of pregnancy, are entitled to two weeks’ leave. This can be taken as either a single block of two weeks or as two separate blocks of one week across the first year after the death. The qualifying period is within 56 weeks following the date of the child’s death.
The government estimates that this new law will help support around 10,000 parents a year.
Jack’s law
The new law will be known as Jack’s Law, in memory of Jack Herd. Since 2010 Jack’s mother, Lucy Herd, has been campaigning for reform following the death of her son who drowned at the age of 23 months. She found that 3 days bereavement leave was often the maximum that companies offered to parents to grieve, and anything over that had to be taken as sick or holiday leave.
Lucy Herd said “In the immediate aftermath of a child dying, parents have to cope with their own loss, the grief of their wider family, including other children, as well as a vast amount of administrative paperwork and other arrangements. Sudden or accidental death may require a post-mortem or inquest; there is a funeral to arrange and there are many other organisations to contact, from schools to benefit offices.”
Who is entitled?
Employees have a ‘day one’ right to unpaid bereavement leave; parents are able to claim pay for this period, subject to meeting eligibility criteria.
It is available to birth parents and those with parental responsibility including adoptive parents, fostering parents (emergency foster care may not be covered), those who are fostering to adopt and legal guardians.
Bereavement policy
Having a bereavement policy that covers pay and absence can help keep things clear and concise. It should cover:
- How soon the bereavement should be reported
- Who can report it e.g. a family member if the employee is not able to do it themselves
- Who it should be reported to e.g. line manager
- What happens if the deceased is not a dependant
- How much leave is provided
- What type of leave it is e.g. whether it’s treated as sick leave
- When a sick/fit note is needed
- How the employee’s return to work is managed e.g. whether they can return on reduced hours if they’re not ready to return full time
It should also cover pay, whether or not it is provided, how much is provided and the type of pay e.g. sick pay.
What employers should be aware of
Mental health
Anxiety and depression are common conditions for anyone who has been bereaved. Certain mental health conditions are considered disabilities under the law so employers should ensure they don’t discriminate against someone with a disability and make ‘reasonable adjustments’.
Colleague disclosure
Employees have the right to keep their bereavement private from their colleagues by law. It can be helpful for employers to ask their employees if they would like their colleagues to know about the bereavement. If they are advised not to disclose the reason for their absence, it is best to say as little as possible e.g. due to personal reasons.
Support
When someone returns to work following a bereavement, they may still need extra support or time off due to things like mental health or extra responsibilities. Employers should consider the employee’s long term physical and mental health and what’s best for them. Promoting an open and supportive working environment can help prevent problems arising.
This isn’t the only new law coming into place in April 2020. For further information on upcoming changes and how they will affect your business, get in touch on 0161 605 2156 / [email protected].
Highlighted by the #MeToo movement, the reporting of sexual harassment at work has become more prevalent, as have the barriers that many experience when reporting it.
In a 2019 survey conducted by the TUC where 1,000+ lesbian, gay, bisexual and transgender people (LGBT) were consulted, an alarming 68% reported that they had been sexually harassed at work.
What is sexual harassment?
Sexual harassment occurs when an individual engages in unwanted behaviour of a sexual nature (verbal, non-verbal or physical conduct), and:
- Violates someone’s dignity
- Creates an intimidating, hostile, degrading, humiliating or offensive environment for the individual concerned
New guidance
New guidance has been issued by The Equality and Human Rights Commission (EHRC) regarding dealing with sexual harassment at work.
It states that all employers have a duty of care to protect their workforce and are legally liable for harassment in the workplace if they haven’t taken reasonable steps to prevent it.
The guidance includes a legal explanation and examples of how to manage and respond effectively to workplace harassment. In addition the EHRC has recommended seven steps that employers should take to prevent and manage sexual harassment in the workplace:
- Develop an effective anti-harassment policy
- Engage colleagues with regular one-to-ones and have an open-door policy
- Assess and mitigate risks in the workplace
- Consider using a reporting system that allows employees the option of raising an issue anonymously
- Train employees on what sexual harassment in the workplace looks like, what to do if they experience it and how to handle complaints
- Act immediately when a harassment complaint is made
- Treat harassment by a third-party just as seriously as that by a colleague
It also discourages the use of NDAs (non-disclosure agreements) unless they are deemed to be necessary and appropriate.
Non-Disclosure Agreements
What is an NDA?
NDAs are contracts or parts of contracts that typically prevent colleagues and ex-colleagues from making information public. They are also referred to as confidentiality or gagging clauses. They can be found:
– in an employment contract
– in an Acas settlement form (‘COT3’), written up when an agreement is reached through ‘conciliation’
– in a settlement agreement
– in a separate, standalone document
Employers should follow fair procedures to resolve workplace issues as opposed to using NDAs. For example; disciplinary or grievance procedures, investigation or whistleblowing procedure. This will help avoid problems worsening and prevent legal action, along with keeping colleague motivation and encouraging a more open and productive workplace. Colleagues should be encouraged and supported, allowing them to open up about any issues and have their problems dealt with in an appropriate way. Giving managers training to spot the early signs of disagreements and resolving issues can help improve colleague productivity, prevent the problems from getting worse and avoid legal action.
When might an NDA be used?
If an employer and employee make an agreement to solve a workplace dispute, they may use an NDA to keep the details of the agreement or the fact an agreement has been made confidential. This may include the sum of money agreed in a settlement agreement, the settlement terms or the circumstances leading to the settlement agreement.
They may also be used:
– to keep a company’s information confidential
– when an employer needs a lot of protection for customer or client identities, intellectual property or other sensitive or important business information
– to keep confidential certain things the employee knows about the workplace or business
– to stop someone making critical or insulting comments, for example about the employer or employee, specific people in the workplace, the service that an employer provides, or their customers and clients
– to help protect someone if the details of a dispute or dismissal became widely known
When should an NDA not be used?
– prior to investigating if another solution can be used instead
– when they’re not needed
– to stop someone reporting discrimination, harassment or sexual harassment
– to cover up inappropriate behaviour or misconduct
– to avoid addressing disputes or problems in the workplace
– to mislead someone
This article covers just some of the things employers can do help prevent sexual harassment in the workplace. If you require further information, or need some guidance on a current claim, get in touch today on 0161 603 2156 / [email protected] for further advice.