The Supreme Court has this morning dismissed appeals to pay an hourly rate for ‘sleep-in’ shifts; this will no doubt be a relief for care companies and investors alike, but a setback for carers and healthcare staff.

The ruling in the Mencap v Tomlinson-Blake case means the time a worker is required to sleep on site does not count towards minimum wage calculations.

“This ruling will be disappointing for any care worker who believes they should be paid minimum wage for the entirety of the time spent on ‘sleep-in’ shifts,” employment partner at law firm Shakespeare Martineau, Matt McDonald, said.

Implications for employers

This decision will no doubt come as a huge relief to employers in the care sector, as they could have been forced to pay substantial back payments (an estimated £400 million) if appeals were allowed by the Supreme Court.

Employers should however note the Supreme Court stating that not all workers who are allowed to take naps on shift are classed as a sleep-in worker and dependant on the facts of the case, they may be working, as opposed merely to being available for work, even if their work is only intermittent.

This judgment is the final word on the sleep-in exception in these proceedings.

However, many interested parties, including Mencap, believe that the NMW legislation covering sleep-in payments is outdated, unfair and they are calling on the Government for reform.

For advice around this topic, please give us a call on 0161 603 2156 for a free, no-obligation chat around how we can protect your business.

Case Spotlight: Northbay Pelagic Ltd v Anderson

In the recent case of Northbay Pelagic Ltd v Anderson, it was held at the Employment Appeal Tribunal (EAT) that the Employer’s decision to dismiss the employee, because the employee had installed a surveillance camera at work, was in fact unfair.

The complainant was a director and employee of the company, a fishing business, and relations between himself and other Directors had broken down.

In 2016, Mr Anderson was put on suspension for disobeying a reasonable management instruction, and subsequently dismissed for gross misconduct then removed as a director from the company.

There were various grounds given for his dismissal, including failure to follow management instructions and also that following the initial suspension, Mr Anderson had installed a surveillance camera inside his office. A claim was brought at the Employment Tribunal for unfair dismissal.

The tribunal considered that around the time of dismissal, Mr Anderon had raised suspicions around another Director that had sought access to the complainant’s computer password.

Tribunal Decision

The tribunal held that the complainant suspicions were reasonable; by setting up the surveillance camera, Mr Anderson had taken measures to see if his personal data was being accessed without his knowledge or consent. The camera was found not to be covert as it covered both the complainant’s office and another office next door, and also because there was other CCTV in the office building.

The Employment Tribunal upheld the claim and decided that Mr Anderson’s dismissal was unreasonable, as the camera was not covert, so using the camera as a reason for dismissal was not a reasonable ground.

The employer put in an appeal to the EAT and argued that the ET had decided that the dismissal was unfair instead of viewing the fairness through the eyes of the employer. The appeal was rejected, as it was held that the complainant’s actions were demonstrative of him trying to protect his interests as an employee, a director, manager and a shareholder of the business.

The Appeal Tribunal held that the privacy of the other staff in the office was not threatened by the installation of the camera, as there was no evidence of other staff being caught on camera, and it was only those who were trying to access Mr Anderson’s office that were captured on the camera.

Northbay failed to fulfil its obligation to balance the complainant’s interests in protecting his confidential information with the other staff’s privacy rights, the EAT found.

The EAT disagreed with the initial tribunal’s reasoning that the camera was not covert. However, the EAT upheld the decision that the dismissal of Mr Anderson fell outside the band of reasonable responses.

Mr Anderson’s failure to follow a management instruction was remitted to a fresh tribunal to reconsider.

Implications for Employers

If an employee installs a covert camera at the workplace, this could amount to serious or gross misconduct and/or breach of the implied term of confidence and trust between the employer/employee.

Careful investigation into the employee’s reasons for the covert surveillance must be undertaken by the Employer in these instances, for example if the employee has evidence that their privacy was at risk of being breached.

Employers should not jump straight to summary dismissal if a covert camera is found. Instead they should weigh up the employee’s interest to protect confidential information against its own interests, including the privacy rights of other staff, before deciding to dismiss.

While every case is dependant on the facts, Employers should approach this topic with caution; where the risk to privacy of other employees is negligible, a dismissal for gross misconduct may not be justifiable.

Further Advice

If you need any advice on this topic, or anything else HR-related, please give us a call on 0161 603 2156 today for a free, no-obligation chat around how we can protect your business.

Workers took the fewest sick days in 2020 than at any time since records began, according to the recent ONS data.

Whilst covid itself might have led to more sickness-related absence, measures put in place last year such as:

the furlough scheme

shielding

social distancing

home working

appear to have contributed towards the reduction in other causes of workplace absence.

In the UK, the rate of sickness absence was as low as 1.8% last year, which is the lowest level on record. The ONS, which collates data, could not quantify the amount of people shielding that were employed and able to work from home or the number of furloughed workers.

This begs the question: could shifting to homeworking have a positive effect on sickness absence rates? It is thought that last year, many workers that were slightly unwell and perhaps couldn’t have made it into their usual workplace, worked from home on days when they otherwise would have rang in sick.

Let us know what you think on our social channels (search Supportis on instagram, facebook or Linkedin), and if you need any assistance with managing your workers or workplace health and safety, please give us a call on 0161 603 2156 for a free, no-obligation chat about how we can help.

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.

Following on from our previous article, Coronavirus advice for employers, the rules and advice around Coronavirus has been constantly changing.

The current government advice is:

• Only go outside for food, health reasons or work (where this absolutely cannot be done from home)
• Stay 2 metres away from other people, otherwise known as social distancing
• Avoid busy commuting times on public transport where travel is essential
• Wash your hands as soon as you get home

Vulnerable and high risk employees

For those who come under one of the below categories, employers must take extra steps to protect them:

• Long-term health conditions, for example, asthma, diabetes, heart disease or a weaker immune system as the result of medicines such as steroid tablets or chemotherapy
• Pregnancy
• Aged 70+
• Caring for someone with a health condition that might put them at a greater risk

The government has strongly advised that strict social distancing measures should be taken.

For those who are ‘extremely vulnerable’ due to underlying health conditions (they will have received a letter from the NHS), they have been told to ’shield’ themselves for 12 weeks. If your employee has already been informed or think they may be told to shield, you should support them during this difficult period and adhere to any advice they are given.

Employees who don’t want to go in to work

If an employee doesn’t want to go in to work as they fear they may catch Coronavirus, the employer must try and make reasonable adjustments to diminish this risk. For example, they could introduce flexible working hours for those who travel using public transport so they aren’t travelling at rush hour. Or, for those who can drive, they may offer parking spaces, so they don’t have to take public transport.

If the employee refuses to go in to work, the employer may suggest them taking unpaid leave. Disciplinary action is to be taken as a last resort.

Discrimination

Employees are protected by the law from day 1 of their employment for unfair treatment and dismissal because of:

• Pregnancy
• Age
• Disability (some health conditions are covered)

It can be considered unlawful discrimination to force an employee in one of the above categories to:

• Unreasonably force someone to go to work
• Unreasonably discipline someone for not going to work

It is important to take this into account when considering whether employees need to come into work.

Pay

The government announced on 20^th March that they will pay up to 80% of employees’ wages who aren’t able to work due to Coronavirus.

Chancellor Rishi Sunak announced that for those employees that are kept on by their employers, they will have up to £2,500 a month covered by the government. This was implemented to reduce the number of jobs that would be lost.

Statutory Sick Pay (SSP)

Employees are eligible to SSP from day one of their absence from work.

For the first 7 days off work, employees can self-certify so they don’t need to provide any evidence for their employer. After that, employers may ask for evidence of sickness absence.

Employment and Support Allowance (ESA)

If an employee has a disability or health condition that affects how much they can work, they are able to apply for ESA which gives them money to help with living costs if they can’t work, and support to get back into work if they’re able to. This applies to those who are employed, self-employed or unemployed.

School closures

All schools are now closed in England, Scotland and Wales, apart from the teaching of children of key workers.

If employees require emergency time off for childcare or to make new arrangements, they can use time off for dependants or holiday entitlement (if the employer is in agreement).

Employers may consider offering flexible working to support those affected, e.g. working from home or altering working hours for childcare.

There should be regular contact between the employer and employee to ensure time off or the changing of working hours can be planned ahead.

Working from home

Employers should encourage their employees to work from home wherever possible. They should be given support to do so, which may include ordering extra equipment.

If your employees are working from home, as an employer, you should pay them as normal. You should have regular contact with them and check on their mental health and wellbeing.

Below are just a few suggestions that employers can share with employees to ensure a happy and productive workforce:

• Start your day as if you were going to work, get up, get dressed and have your breakfast ready to start the day.
• Make sure you have a quiet place to work so you can concentrate. Don’t multi-task and watch the TV while working, not only because you need to maintain a professional environment while talking to clients or customers, but you need to focus on what you’re doing just like you would when you’re in the office.
• Make sure you have a lunch period to take a break from your laptop. Chat to friends, read a book whatever you’d like to do to clear your head for the afternoon.
• While temporarily working from home you’ll save time not travelling to work. So why not add extra activities into your day improve your fitness, get your ironing done, practice mindfulness or various other activities and try not to overdo it on the carbs.
• Make sure at the end of the day you have an end of day ritual to mark that you have worked hard and finished for the day. Log off, chat to your friends (over the phone or video call), play with your kids or pets and chill out.

It is a very dynamic environment currently, and it is important to keep a check on government rules and regulations. If you require any further information or updates, get in touch with our Employment Law team at [email protected].