What happened in the case of Hamilton v Epsom and St Helier University Hospitals NHS Trust?

Mrs. Hamilton, a diabetes specialist nurse, successfully pursued a constructive dismissal claim against Epsom and St Helier University Hospitals NHS Trust, receiving £41,000 in compensation, due to a sustained campaign of bullying and a failure of management to address it effectively.

The dispute originated from a professional disagreement between Mrs. Hamilton and a dietitian colleague, Mr. Nayeck, regarding patient care, which subsequently escalated into a pattern of deliberate exclusion and dismissive behavior by Mr. Nayeck. He actively ignored her, excluded her from routine team activities, and allegedly tampered with her personal belongings.

Despite a mediation attempt, Mr. Nayeck’s behaviour persisted, and he later made counter-allegations of bullying against Mrs. Hamilton, which were investigated, further exacerbating the situation.

Mrs. Hamilton’s formal grievance, citing the trust’s failure to address the ongoing issues and its tolerance of abusive behavior, was only partially upheld, leading to her eventual resignation due to stress and a complete breakdown of trust.

What can employers learn about this case?

This case underscores the critical responsibility of employers to proactively prevent and address bullying and harassment in the workplace.

Employers must establish clear policies and procedures for reporting and investigating such incidents, ensuring that all complaints are taken seriously and thoroughly investigated.

They must also provide adequate training to managers and employees on recognising and preventing bullying and harassment, and foster a workplace culture that promotes respect, open communication, and early intervention to resolve conflicts before they escalate.

Furthermore, employers should ensure that mediation or conflict resolution processes are conducted fairly and effectively, and that any outcomes are monitored to ensure lasting change.

The trust’s failure to effectively manage the interpersonal conflict and address the persistent bullying resulted in a significant financial penalty and demonstrated the importance of robust policies and procedures to protect employees from such harmful behaviours.

Further help and advice

Navigating workplace disputes involving bullying and harassment can be complex. If such a situation arises with your employees, please don’t hesitate to contact Supportis on 0161 603 2156, or at [email protected]. We can provide expert guidance to ensure your actions as an employer remain legally compliant and help you manage the situation effectively.

Do I need to let my Muslim workers have time off for Ramadan?

How can I approach Ramadan with my employees?

How do I support my Muslim workforce during Ramadan?

Ramadan (Evening of Sun, 10 Mar 2024 – Tue, 9 Apr 2024) is a period of religious observance for many Muslims and includes fasting from sunrise to sunset.

Here, we discuss ways that employers can support workers to observe religious festivals.

Tip #1 – Distribute a religious observance policy

Management need to know the Employer’s religious observance policy and treat all workforce the same under it. If allowances are made for one employee’s religious observance but not another employee, it is likely this will amount to direct religious discrimination.

If you don’t have a policy in place or show support as an Employer to employees who observe certain religious practices, this could lead to accusations of and claims for religious discrimination.

Tip #2 – Be tolerant to reduced productivity levels

It’s likely that fasting employees’ productivity will reduce, especially towards the end of the working day. Management should demonstrate awareness and understanding, avoiding undue penalisation or criticism of such an employee.

Case law shows (Bhatti and another v Pontiac Coils Europe Ltd) that critical comments made to a worker regarding her reduced work productivity levels due to fasting amounted to direct religious discrimination and harassment.

Tip #3 Accommodate annual leave requests where possible

There can be an influx of annual leave requests from employees to observe religious festivals, such as Eid, which brings the fasting period of Ramadan to an end.

Although it may be impractical for the Employer to be able to grant all leave requests for such periods, the Employer should support their religious workforce for all religions in the same way, particularly as the majority of Christian holidays are already provided for as bank/public holidays in the UK.

Tip #4 – Consider the effects of off-site meetings and events

The Employer should consider carefully requests to be excused from attending work conferences, offsite visits, training and similar events during Ramadan, as a failure to do so might amount to direct and indirect religious discrimination.

Employers should arrange meetings with concerned employees to listen to and understand their reservations on event attendance, and try to reach a compromise. One concern might be networking dinners/drinks at the event if the employee is fasting.

Remember… every person will express their faith in their own way…

so show patience and understanding to your employees whilst they undergo periods of religious observance.

If you need any assistance with constructing a religious observance policy, or with anything else HR-related, please give us a call today on 0161 603 2156 to discuss how we can help your business flourish.

The first Monday of February is proven to be the day that UK workers are the most likely to ring in sick.

Reasons include:

• Gloomy weather
• Post-festive blues
• Seasonal illnesses

It’s well-known that conditions such as depression and anxiety can affect people more severely in the winter, with Seasonal Affective Disorder (SAD) affecting 10-20% of people who suffer with depression.

SAD is sometimes known as “winter depression” because the symptoms are usually more apparent and more severe during the winter.

People with SAD may have symptoms during the summer and feel better during the winter.

the term ‘sickie’ implies that employees are being dishonest by calling in sick, mental health advocates highlight the stigma that unfortunately still exists around mental-health issues leads many employees to use other illnesses they think may be deemed more ‘acceptable’ as their stated reasons for not coming into work.

Approximately 600,000 workers called in sick in 2020, costing employers an estimated £45,000,000.

Workers calling in sick citing their reasons as mental-health related are shown to be more likely to lie to their employers than those with a physical ailment. This is just one of a plethora of reasons that employers must do their bit to emphasise the importance of mental health and reduce the stigma around it.

Mental health isn’t the only type of absence that generally gains little sympathy with employers. Only 42% of senior managers agreed that having the flu was a valid reason to stay home. However, it’s been proven that having a day off when not feeling well can be more productive for the workforce in the long run, as coming into work sick can unnecessarily spread germs amongst colleagues and customers.

How to counteract National Sickie Day

• Ensure you’ve got a robust absence management policy in place

This sets expectations out clearly to staff and creates a sense of fairness where the policy is applied consistently amongst the workforce. It also helps to keep tabs on how many sickness absence days are being taken for each employee. Whether through a spreadsheet or absence management portal, it’s easier to pick up on when sickness absence days are becoming excessive if absence is regularly monitored.

• Integrate with your team

Apart from the obvious benefits integrating with your team will result in, team integration will also offer Employers better opportunity to pick up energy levels and gauge the team atmosphere, in turn this can be a good method of predicting absence and helping prevent it. It’s important to be able to tell the difference between an employee with a busy social calendar who’s using days like National Sickie Day to their advantage (and of course manage this appropriately) and an employee who’s suffering from burnout and needs a day off from exhaustion.

• Don’t be scared of formal process

We find employers are often worried that by delving into reasons for sickness absence, they may be impinging on employee privacy, and opening themselves up to various potential discrimination claims. Although of course absence management processes need to be carried out appropriately to mitigate any risk of this, following formal processes is a must when you’ve exhausted avenues such as informal meetings, letters of concern etc. It ensures fairness across the workforce and may act as a deterrent to ‘repeat offenders’. Of course, we always encourage our clients to speak to us so we can advise the best avenue to take when managing absence, as there are lots of valid reasons that employees may have repeated sickness absence also.

National Sickie Day remains a popular talking point and excuse for people to take a day off, comforted by the fact that others are likely doing the same.

If you’re affected by this topic, Supportis specialise in HR, employment law and health and safety advice for UK employers. Give our friendly team a no obligation, free call today on 0161 603 2156.

From Monday, 16 August 2021 those who have had both coronavirus vaccinations or are aged 18 and under can go into the workplace even if they are in close contact of a positive case.

From Monday 16th August 2021 do employees still have to tell the employer that they’ve been identified as a close contact of someone who has tested positive for coronavirus?

This depends on your workplace policy and whether they themselves have tested positive or developed symptoms. If they do test positive or have to isolate because they’ve been in contact with a positive case, they have a legal duty to self isolate for 10 days unless exempt.

If the employee does have a legal duty to self isolate, they have to inform the employer of this unless they are working in the place they are isolating from such as working from home.

Regulations provide that from today, anybody who has been double vaccinated or aged 18 or under does not have to self isolate after being identified as a close contact of a positive case unless they also test positive themselves.

Anyone who isn’t part of these exemptions will still continue to self isolate as before.

In order to qualify for these exemptions employees must have had their second vaccination at least two weeks before they came into close contact with the positive case.

For example if someone had the second dose on 10th August they would still need to isolate until 24 August if they’re identified as a close contact with a positive case during that time.

Test and trace are continuing to notify people who are close contacts with positive cases and will recommend that the contact has a PCR test to determine whether they are also positive for the virus.

If they then test negative they do not need to have any further PCR tests unless they develop symptoms.

Please note that close contacts do not have a legal duty to take a PCR test, and should they choose not to be tested. you will not know that they’ve been contacted and therefore could be asymptomatic unless you specifically ask them to tell you if they are identified as a contact of somebody with coronavirus.

Test and trace will also inform the contact that they must self isolate unless they are exempt under these new rules.

Does an employee who is self isolating before 16th August have to continue to self isolate beyond that date?

This depends on their circumstance. Anybody who is exempt under the new regulations is allowed to stop self isolating from midnight on Sunday 15th August. However if they are not exempt, they do have to continue to isolate for the full 10 days.

Do these new regulations also apply to those who are pinged through the test and trace app?

No. Anyone who was notified via the app is advised to isolate for 10 days however they are not legally required to do so.

It is expected the government will tweak the wording of these notifications to make clear that those who are notified don’t have to isolate if they are under 18 or have had both vaccinations. This would bring their advice in line with the new legalities.

Do I need to check that employees are exempt from the duty to self isolate?

This depends on the nature of your business and how much contact each staff member will have with others, whether your staff work with those who are clinically vulnerable etc.

There is no legal duty to check that employees are exempt, as the duty to isolate is on the individual. However, it is an offence to knowingly allow employees who should be self isolating to attend work.

Company directors and managers are also committing an offence if the breach of the employer is found to have been committed with their consent or acceptance through negligence.

Therefore we recommend you communicate your expectations to employees in regard to what happens if they’re identified as a close contact of someone who has tested positive for coronavirus.

There is still confusion around the new rules (specifically in regard to receiving a second vaccination two weeks before relying on exemptions to isolation) so there is a need to clearly communicate this to your employees. This point is particularly poignant if your business engages young workers, as many won’t have been offered a second vaccinations yet.

Make clear to your employees that if they attend the workplace after receiving notice to isolate, they are confirming that they are legally exempt from self isolation and have taken a PCR test which has come back negative. If employees do it and work when they should be self isolating, you will treat it as a serious disciplinary offence, which may result in their dismissal.

Can I ask employees to attend work if they are exempt from self isolation?

Yes. If they are exempt, they do not legally have to self isolate unless they themselves test positive for the virus.

Fully vaccinated employees are a lot less likely to catch coronavirus than partially vaccinated or on vaccinated employees, however, if your employees can work from home, it would be sensible to allow them to do so. This reduces the risk of catching coronavirus and spreading it around the workplace.

Can I expressly ask employees if they’ve been vaccinated?

Potentially, yes, however this would be collecting personal data and as it is also health data it is classed as special category data which affords even more protection. There are GDPR issues to consider.

The ICO has recently published guidance on vaccination and coronavirus status checks, which states that “before you decide to check people’s Covid status, you should be clear about what you are trying to achieve, and how peoples Covid status must be clear, necessary and transparent. If you cannot specify a use for this information and are recording it on a ‘just in case’ basis, or if you can achieve your goal without collecting this data, you are unlikely to be able to justify collecting it”.

In regards to the changes coming in on 16th August, the justification for collecting this information is clear where you have employees on site; you will need this information to make sure that employees are legally able to attend the workplace after being named a contact of a positive case. Moreover, you might need this information to protect other employees in the workplace.

Data protection rules are very often context driven, and the current ICO guidance recommends that you consider ‘the sector you operate in, the kind of work your employees do, and the health and safety risks in your setting.’

If employees are working from home, it will be difficult to justify collecting this information, you do not need to check whether they can come into work and stuff or they will not pose a health and safety risk.

The ICO guidance hasn’t yet been updated to reflect the new regulations on self isolation. Therefore, it is recommended that you keep checking official guidance, and take action if ICO advice changes.

What evidence can I rely on to check my employees covid vaccination status?

You should primarily rely on the official NHS Covid past verifier app, the online Covid past service, or by checking and employees NHS Covid pass later.

Also, unless there is a legal obligation to check vaccination status of your employees, you can also request to view the NHS vaccination appointment card.

What data protection issues do I need to consider as the employer?

You must only record data that you actually need and can justify collecting. Therefore you cannot collect personal data just in case. In regard to an employee’s vaccination status, The only information you will need to record is whether the employee has been fully vaccinated e.g. yes or no, and an indication of when their second vaccination took place, as this needs to be at least two weeks before you record this information. You don’t need to know what type of vaccine they receive, or the reasons why they chose not to be vaccinated.

It is also sensible to avoid allegations that you have collected any unnecessary data, you should ideally not collect everybody’s information on or just after 16th August, instead it should be collected when you need it e.g. when somebody calls in to ask whether they can attend the workplace, or when someone calls to ask if they need to self-isolate.

Whilst there is some complexity around asking about employees’ vaccination status, it is clear that you can require employees to notify you when they are required to self isolate. If they tell you they are required to self isolate, you can then ask about vaccination status.

In line with GDPR, you should ensure this information is recorded accurately, kept up-to-date, not kept for longer than necessary and only accessed by those who have a reason to access it.

Finally, it’s important to be transparent about how you are processing personal data. You should either add an addendum to your privacy notice or issue a standalone explanation, such as a letter, of how the data will be used in regards to self isolation and coronavirus vaccination status.

If you have any questions about this guidance or anything else HR related, feel free to contact us today on 0161 603 2156, for a friendly no-obligation chat around how we can help your business.

Equal pay

It has been confirmed by the Supreme Court in the case of Asda Stores Ltd v Brierley and others [2021] that Asda workers are entitled to make comparisons in pay whether they are supermarket workers or depot workers.

However, this may lead to implications for employers. The employment tribunal will be responsible for reviewing whether the work performed in these roles are of equal value and whether the reasoning behind Asda not paying the roles equally links to discriminatory reasons.

The same will apply to other supermarkets regarding equal pay claims. Claims from 2016 show that Asda supermarket workers who were predominantly women, were not receiving equal pay in comparison to Asda depot workers who were predominantly men.

Tribunal issues

Tribunals now face the issue of whether the two roles can compare their pay. It has been concluded that there are fundamental differences between Asda’s distribution and retail sectors. For instance, they are located in different environments, operate in separate industries and evolved separately over time.

Although elements such as hourly pay, bonuses, discount card eligibility, pension contributions and family friendly leave have significant comparisons. Asda have argued that these are not common terms, as both sectors were negotiated in different ways. As a result, Asda’s appeal was unsuccessful and the case has proceeded.

Summary

In conclusion, the tribunal deemed that if depot employees were employed at the claimants’ site, they would have been employed on substantially the same terms and would not have received the retail employees’ terms. Following from this the Supreme Court stated that where claimants and comparators are employed under different bargaining agreements, this can be “common terms”. Prolonged enquiries into whether or not comparators would be employed on the same terms depending on their establishment has been discouraged by the Supreme Court, as have appeals relating to the issue. Claimants are now showing that they perform work of an equal value, as the case returns to tribunal.

The UK left the EU on 31 January 2020, ending free movement with the introduction of an Immigration Bill and points-based system with the view to attract the high-skilled workers from the EU. Here are our most popular questions asked by Employers in relation to navigating HR post-Brexit:

I have EU workers in my business. What do I need to do?

Support EU/EEA/Swiss nationals in their application for settled/pre-settled status under the European Settlement Scheme by 30 June 2021.

Irish nationals don’t need to apply for settlement status by virtue of the Common Travel Agreement (CTA).

Are there any dates I need to note down as a HR professional?

1 January 2021

The new, points-based immigration system comes into force… find out more here

30 June 2021

The extended deadline for for EU/EEA/Swiss citizens who were in the UK before 11pm on 31 December 2020 to apply for the EU Settlement Scheme

1 July 2021

Employers need to check whether their EU/EEA/Swiss workers have the right to work in the UK, including through the EUSS

Am I entitled to ask my EU employees what their intentions are?

Yes, we recommend you hold an informal one-to-one to find out how they are feeling, if settlement status has been applied for, and to offer of help to navigate the process and complete the online application.

Do I have any obligations as the Employer if an EU worker can’t obtain settled status by 01/07/21?

Employees with no immigration status would be prevented from starting a new job or retaining their existing one from 1st July. Other factors must also be considered, for example accessing healthcare, or being prevented from renting accommodation.

The consequences of not securing immigration status are severe, so Employers must remind EU employees to apply for settlement status under the EU Settlement Scheme if they haven’t already done so and support them to do that before 30 June 2021.

Find out more…

For help navigating this often complex topic, please give our friendly expert team a no-obligation, free call on 0161 603 2156 to see how we can help you!