HR briefing - September
In the courts
Flexible working and sex discrimination
Many readers will have seen press coverage of the £185,000 award by a recent Employment Tribunal ruling to an estate agent whose flexible working request was turned down. The refusal was held to amount to indirect sex discrimination, given that the claimant wanted the flexibility in order to look after her young child. The judgment itself is worth reading, and demonstrates that:
- a proper paper trail showing the steps the employer has taken to consider a flexible working request is essential. Merely citing one or more of the statutory reasons for which a request an be denied is not sufficient and employers should expect to have to show cogent reasons to support their decisions;
- unhelpful evidence of ingrained or outdated attitudes, whether to working mothers or any other group, is extremely unhelpful. Here, one manager was said to have disapproved of the claimant’s pregnancy in vulgar terms. That kind of evidence can have a fatal wash across the remainder of the litigation – a reminder of how careful employers and staff should be in their language; and
- headlines giving Tribunal awards are not necessarily illuminating. Here, as the decision on remedy makes clear, the award breaks down into:
- an amount for injury to feelings in the middle of the Vento bands;
- loss of salary and commission over around one and a half years; and
- grossing up for tax, so that the Claimant actually receives the correct sum in her hands after tax.
None of those elements is out of the ordinary, albeit that the total award is relatively large because the claimant was relatively well remunerated.
Appeals and redundancy
Most readers will have in place sensible disciplinary policies which comply with the basic steps outlined in the Acas Code of Practice. One such step (paragraphs 26-29 of the Code) is that employees should be offered an appeal against any disciplinary sanction. Dismissals for redundancy are different, as the Code does not apply so general principles of fairness need to be considered. In practice, many employers will include an appeal in redundancy dismissals as well as dismissals on grounds of misconduct. Indeed, the Acas guidance (which is not in the form of a Code, so is not binding) recommends an appeal stage. The Court of Appeal has confirmed that the absence of an appeal, in redundancy cases, is not necessarily unfair. It is an element to be weighed in the mix when assessing the overall fairness of the process, but is not an automatic trigger for unfairness.
Many clients offer membership of a group income protection (or permanent health insurance) scheme as part of their benefits packages. Such schemes offer support for employees suffering from long-term ill health and are typically underwritten by an insurance policy. Problems can arise where employment contracts, handbooks or summary documents misstate the precise nature of the benefit. This can be particularly tricky where companies have been the subject of mergers or takeovers, so that the new owners are unfamiliar with schemes put in place in the past. In a recent example, the Employment Appeal Tribunal concluded that a company was bound to honour promises made in original contact documentation issued in 2003, even though the original company had since been bought and new insurance put in place that no longer provided the benefits originally summarised. The case underlines just how important due diligence is when preparing for a corporate transaction, whether TUPE applies or not.
Employees, like all data subjects, have the right to access personal data held by data controllers – i.e. their employers. Responding to a data subject access request, or DSAR, can be an onerous obligation, involving significant management time and expenditure. This is particularly true where litigation is under way, so that disclosure of relevant documents will have to be undertaken alongside the DSAR response. Some businesses choose to ignore the data obligations – but a recent example illustrates the dangers of doing so. The Information Commissioner’s Office (ICO) has recently published its enforcement notice against a recruitment agency which deliberately refused to comply with a DSAR and was obstructive, even dishonest, in its dealings with the ICO. As the enforcement notice reminds us, the ICO’s fining powers permit it to fine an amount up to £17.5m or 4% of an undertaking's total annual worldwide turnover, whichever is the higher. Firms wishing to understand how to respond to a DSAR should read the ICO’s guidance, or seek advice.
In the news
There are four legislative updates to note.
- The Government has published a consultation on whether the right to request flexible working should be available to all employees from day one of their employment. At present, employees need 26 weeks’ service before a formal request can be made.
- Two Private Members Bills have been published, one looking to control the use of NDAs in sexual harassment settlements, one proposing a single employment status, rather than two “employee” and “worker” categories that exist at present.
- The Government has signalled its desire to revise some aspects of the UK’s data privacy regime, potentially moving away from the EU GDPR. One of the more eye-catching proposals (see paragraphs 185-189 of the document) is the suggestion that a fee might be reintroduced in order to respond to a data subject access request. Whether such a measure – which on the face of it would not be consistent with the GDPR - would endanger the adequacy decision recently announced by the EU, which enables free transfers of data between the UK and EU, will be a key point to watch as the proposals are developed.
We will track these proposals as they move through the Parliamentary process.
The Government has published its autumn/winter plan for management of the ongoing pandemic. It provides for a plan A – the Government’s preferred steps, and a plan B, the measures the Government hopes to keep in reserve. Extracts dealing with office working and working from home are below for ease:
To support businesses through the autumn and winter period, the Government will continue to provide up-to-date Working Safely guidance on how employers can reduce the risks in their workplace. Businesses should consider this guidance in preparing their health and safety risk assessments, and put in place suitable mitigations.
In line with government guidance at step 4, an increasing number of workers have gradually returned, or are preparing to return, to offices and workplaces. As workers return to the workplace, employers should follow the Working Safely guidance.
By law, businesses must not ask or allow employees to come to work if they are required to self-isolate.
In addition, businesses are encouraged to:
- ask employees to stay at home if they are feeling unwell;
- ensure there is an adequate supply of fresh air to indoor spaces. Businesses should identify any poorly ventilated spaces, for example by using a CO2 monitor, and take steps to improve fresh air flow in these areas;
- provide hand sanitiser to enable staff and customers to clean their hands more frequently, and clean surfaces which people touch regularly;
- display an NHS QR code poster for customers to check in using the NHS Covid-19 app, so they are alerted if there’s an outbreak and can take action to protect others; and
- consider using the NHS Covid Pass.
Advice to work from home
SPI-M and SAGE have advised that high levels of homeworking have played a very important role in preventing sustained epidemic growth in recent months. If the Government were to re-introduce this measure it would be seeking to reduce the transmission risk inside and outside of the workplace, including by reducing the number of people taking public transport and the number of face to face meetings and social activities, and thereby reducing community and household transmission.
Working from home – supporting evidence
SAGE has advised that working from home is one of the most effective measures available at reducing contacts, including associated transport and social interactions, which has a strong impact on transmission and R. The REACT survey from Imperial College London showed that working from home reduced the chance of catching Covid-19. Those who were working from home were less likely to test positive for Covid-19 than those who left their homes to work in February. Analyses of risk by occupation consistently show a lower risk for those occupations with higher levels of working from home.
However, the overall socio-economic effects of the Government’s working from home guidance are complex and unevenly distributed. For example, working from home has reduced the frequency of commuting for many workers resulting in reduced consumption in direct office-related spending, indirect social consumption (such as in retail and hospitality) and transport use in city centres. However, some of this reduced consumption is displaced to surrounding areas where homeworkers live and therefore partly replaced by increased consumption of other goods and services closer to home.
Overall impacts on productivity are uncertain and vary by sectors and workers. While there are positive impacts for some individuals, in terms of spending less time and money commuting, others will suffer owing to inadequate working conditions at home, particularly younger workers, and those living alone or with poorer mental health due to reduced interactions with colleagues. Some businesses have reported that productivity has either remained the same or increased, owing to benefits such as a happier workforce and reduced overheads (for example, in spending on office space). However, other businesses report that prescriptive working from home guidance poses challenges, such as hampering the exchange of ideas, stifling creativity and hindering collaboration. Working from home could make it harder for some businesses to carry out client engagement, and to train and onboard new and existing staff. These businesses argue that over time a reduction in these activities will likely pose challenges to the productivity of their workforces.
While the Government expects that, with strong engagement from the public and businesses, these contingency measures should be sufficient to reverse a resurgence in autumn or winter, the nature of the virus means it is not possible to give guarantees. The Government remains committed to taking whatever action is necessary to protect the NHS from being overwhelmed but more harmful economic and social restrictions would only be considered as a last resort.
UK Covid-19 travel restrictions
As the UK opens up to international travel, employers should be aware of the travel restrictions which are still in place for those coming to the UK. We are experiencing a notable increase in client enquiries for advice on travel to the UK (and other destinations) relating to what travellers need to do before departure and after arrival.
They key factors for whether someone has to self-isolate at home or in a mandatory hotel depends on their departure country and whether they are coming from a red, amber or green list country.
Since August, the vaccination status of travellers is a further consideration for whether or not someone can avoid self-isolation entirely.
On 4 October, these rules will change again and the amber list will cease to exist together with some testing requirements. This will make it much easier to travel to and from non-red List countries.
We keep an up-to-date note on the latest restrictions.