Employment Law Bulletin September 2023

Rising Stars - Handling disciplinaries effectively

Employers continue to face a wide range of challenges, balancing the changing expectations of the workforce in the current climate against the needs of the employer’s business. It is crucial that employers understand how to handle disciplinaries effectively, for many reasons: to avoid employment tribunal claims and the resulting legal and financial risk, for effective management of the workforce, to ensure fairness, consistency and transparency and to increase employee engagement and retention.

During this webinar, we will provide an overview of the legal issues and processes involved in disciplinaries and give you the confidence to tackle them.

Click here for more information and to register.

Employment Law Update

Our employment law experts will update you on the key changes in employment law by reviewing important case law developments, discussing the current challenges facing employers and looking forward at what may be on the horizon.

The session will provide practical guidance and ensure you are up to date with legal changes. It is suitable for HR professionals and anyone who manages people.

Click here for more information and to register.

ACAS (Advisory, Conciliation and Arbitration Service) have published revised guidance on managing sickness absence. The guidance includes new sections on recording and reducing sickness and absence trigger points, as well as some key and timely reminders for employers as we move towards the winter season:

• Discretionary sick pay schemes - If you have a scheme which is discretionary you must be consistent in the way that you apply it, and in particular you must ensure that there is nothing discriminatory in the way that it is applied. The same rules must be applied to part-time and full-time employees.

• Fit notes - A fit note is required if an employee is absent due to sickness for more than 7 calendar days – if the employee is part-time, or if some of the days of absence fall at a weekend when an employee was not scheduled to work, a fit note is still required. You cannot ask an employee to get a fit note if they have been absent for fewer than 7 calendar days.

• Medical reports - If an employee has been persistently unwell, or if there are wider concerns about the employee’s health, it could be useful to ask for their permission to seek information from their doctor. Written permission is required from the employee to do this. You should tell the employee why you are seeking the report, that you will only be given information that is relevant to the situation and not their full medical records and you should explain who will see the report. The report should not be shared without the employee’s permission. Note that the employee can ask their doctor not to share information they think could be damaging, or that they think is not relevant.

The updated guidance can be found here and the team are on hand to discuss further should you need assistance with sickness absence management

On Friday 15 September, an announcement was made confirming that new fees for visas will be coming into force on 4 October 2023, giving limited time for employers and businesses to adjust to the change.

The majority of fees for work, business visits and study have increased by between 15 and 20%. Administration fees for those who sponsor overseas workers have increased, as have fees for both priority visa processing and settlement. To sponsor a Skilled Worker for up to 3 years, the fee will go from £625 to £719. To sponsor them for over 3 years, the visa fee will go from £1,235 to £1,420, so the change is not insignificant.

It will therefore be important for those involved in recruitment to communicate with the rest of the business and manage expectations in terms of the increased costs of recruiting from overseas, as well as the usual considerations in terms of timescales and other risks.

We are not currently aware of any plans to increase the Immigration Skills Charge, which will come as a relief for many businesses. The Health surcharge is set to increase a whopping 66% to £1,035, albeit the date is still to be confirmed as the legislation required for that is a little more complex.

Speak to our Business Immigration team for support with what this might mean for you as an employer, managing and communicating these changes, and with overseas recruitment in general.

If an employee has been absent due to sickness for a lengthy period of time, is it possible to dismiss the employee fairly? Yes, was the answer in the case of Garcha-Singh v British Airways plc [2023].

The employee worked as cabin crew and after his sickness absence had lasted for a year, he was given notice that his employment would be terminated. He appealed against this decision, and over a further one-year period his termination date was extended six times to allow him more time for recovery. Eventually he was dismissed, and he argued that this was unfair because there had been a breach of BA’s sickness management policy.

The Employment Appeal Tribunal found that any breach was actually to his advantage because BA had been more generous than the minimum standard set out in its policy, and therefore the dismissal was fair.

Actions:

• Before considering the dismissal of an employee who is absent due to sickness, seek a medical opinion about the likelihood of the employee returning to work in the near future.

• When seeking the medical opinion ask for a viewpoint on whether the employee is disabled as defined in the Equality Act 2010. If the employee is disabled, then reasonable adjustments must be made.

• There is no requirement to follow the ACAS Code of Practice: Disciplinary and Grievance Procedures when dismissing due to sickness. Therefore, disciplinary warnings are neither required nor appropriate in genuine sickness cases.

• Consider if an employee could return to a different job, if their health problems are related to specific work duties.
• If a medical practitioner gives a date by which the employee is expected to return wait to see if the employee does return before taking any action

If an employee is absent due to sickness it could be that they need to be sat at home quietly recovering. However, employers should avoid making assumptions about what their employee can and cannot do when they are sick. It could be that getting out of the home will actually help their recovery.

In Pilkington UK Ltd v Jones [2023] the employee had problems with his shoulder, resulting from radiotherapy he had received to treat cancer at a young age. Due to the pain and discomfort the employee also developed depression and anxiety. A colleague reported seeing him wearing heavy duty boots, and as a result the employer hired a surveillance company to covertly follow him and check his activities. He was seen helping a friend, using a hosepipe and visiting a garden centre. He was dismissed.

He successfully brought claims of unfair dismissal and disability discrimination. The activities he was doing were helping his mental health and were not in conflict with the reasons for his absence.

Actions:

• If an employee who is absent due to sickness is accused of doing activities contrary to their absence talk to the employee about what has been observed.

• An employee can be too ill to work, but still well enough to do other activities. Keep an open mind about this, and if appropriate seek medical input.
• Surveillance should only be considered in extreme circumstances, and there are privacy considerations to balance. Seek advice from the team before resorting to this option.

When making a claim of discrimination the claimant is required to bring the claim to the Employment Tribunal within three months of the event in question. If it is a series of events the claim must be brought within three months of the last occurrence.

In Mackenzie v the Chief Constable of the Police Service of Scotland [2023] a claimant has been allowed to proceed with her discrimination claim despite being more than two years late in bringing the claim.

The claimant had applied to join the Police Service and was accepted, subject to certain checks including a medical. She disclosed that she was taking anti-depressants and was told that she could not be considered because of the ‘two-year rule’ – that applicants could not have taken anti-depressants in the past two years. She complained, with no success, and tried to take legal advice, again without success. Eventually, she read of another individual who had challenged the rule, contacted the solicitor involved and brought a claim with the solicitor’s support.

The claim was allowed. The Employment Tribunal accepted that she was unaware of the time limit to bring a claim and she lacked the confidence to bring a claim without appropriate support. As soon as she saw the article, she got the support, and her confidence was bolstered.

She will now have to show that she was disabled, and that the ‘two year’ rule (relating to anti-depressants) amounted to discrimination.

Actions:

• Allowing an extension of time to bring a claim to the Tribunal of this length is not common, but it is a good reminder that the Employment Tribunal does have the discretion to extend the time requirements.

• If you put in place any medical requirement relating to a job, you must be able to justify why it is a requirement. Review any requirements, checking that they really are necessary.
• If you receive an ET1 (Tribunal claim form) which shows that the claim has been brought out of time you can write to the Employment Tribunal and request a preliminary hearing to address this. However, the deadline for responding to the claim still applies - seek our advice before proceeding.

An equal pay claim can be made when an employee compares themself to an employee of the opposite sex who is doing like work (work that is the same); work that is rated as equivalent (rated on an analytical job evaluation scheme) or work of equal value (work that the employee argues is of equal value to the organisation).

In Thandi and others v Next Retail Ltd and Next Distribution Ltd [2023] female Sales Assistants argued that they were doing work of equal value to the male Warehouse staff. The Warehouse staff are paid more.

To assess the claim, the Employment Tribunal appointed independent consultants to assess the detail of the jobs and determine if they were of equal value. The consultants scored the jobs on 11 criteria – looking at the total score, and also the number of criteria where the women and men were assessed as being equal, or the same. On the basis of this assessment, the jobs were found to be of equal value.

The employees have successful argued that the jobs are of equal value, but the next stage is for the Tribunal to consider Next’s ‘material factor’ defence (i.e., the reason that Next will give for the difference in pay).

Actions:

• If there are jobs in your organisation which are predominantly carried out by one sex take a moment to consider if there are any comparisons which could be made to jobs carried out by the other sex.

• If you do identify such jobs and inequalities in pay, consider whether you could objectively justify this difference. Check with us to see if your arguments are sound.
• The legislation and the assessment can be complex - if you are concerned about a potential ‘work of equal value’ claim, please contact us for advice

…welcoming our newest Trainee and Newly Qualified solicitor!

Clara Hunt joins us for 6 months as part of her training to be a solicitor, whilst Rebecca (Becky) Walters joins us permanently as an Associate having completed her training with Clarion.

Clara has just completed her Legal Practice Course in Leeds, and we are very pleased to welcome Becky back after loaning her skills to our Corporate and IP teams over the last 12 months. Becky is a keen snowboarder while Clara enjoys netball and the gym in her spare time.