Blog: Miscarriage – a workplace issueThis is not an easy topic to discuss, but an important one nonetheless. Many of you will have also seen recent press coverage following Chrissy Teigen and husband John Legend’s miscarriage. It is a fact that 1 in 4 women experience miscarriage (in medical terms, the loss of a baby at any time before 24 weeks of pregnancy). Unsurprisingly, there are no statistics to show how many women keep their miscarriages a secret (save from their partners or very close family) but it is clear many women never reveal they have had a miscarriage (or miscarriages). With the advent of social media, there are more celebrities willing to share their stories (Jules Oliver, wife of Jamie has recently revealed that she has suffered 5 miscarriages and Chrissy Teigen and husband John Legend shared their miscarriage story earlier this month).  Hopefully such profile discussions will have the effect of ensuring women feel safer sharing this very personal news. Dealing with miscarriage in the workplace Not surprisingly the last place a miscarriage is discussed is in the workplace. Understandably women don’t always want to share such personal information with work colleagues, but it is possibly more nuanced than that. For many women, it will be the case that if the miscarriage happens within the first 12 weeks of pregnancy, they won’t have told work or work colleagues they were pregnant. It’s understandable that in these circumstances a woman won’t wish to tell colleagues she was pregnant but isn’t anymore. More importantly, some women won’t want to inform work that they’ve suffered a miscarriage.  They simply don’t want work (or more specifically their managers) to know that they are trying to have a baby in the first place.  Despite the various statutory protections given to women to ensure that they are not discriminated against because they ‘might’ have children, it is the case that conscious decisions are made every day in the workplace that disadvantage women of ‘child-bearing age’. From an HR perspective, it is a difficult one to manage. You will without doubt have women in your workplace (and, importantly too, partners of women) who have suffered a miscarriage.  Even if you’re unaware, there will still be an effect in the workplace; many women who have miscarriages will not simply ‘bounce back’.  They may start taking unexplained absences from work, or perhaps their performance is not as good as it usually is.  As an employer you may well say ‘how can I help if I don’t know about it?’. Supporting an employee affected by miscarriage and the employment rights to consider Firstly consider your organisation’s culture. If employees don’t feel safe to tell you about a miscarriage, why is that? What role models are there in your organisation of women with children? Is getting pregnant considered a ‘career-ending’ event? Second, remember that women have various protections in the workplace relating to pregnancy. The Equality Act 2010 protects women if they are treated unfavourably because of the pregnancy, or because of illness suffered as a result of it. Tribunals will give broad interpretation to what constitutes ‘a reason connected with pregnancy’ and will include absence caused by pregnancy-related illness. Where a woman needs to take sickness absence following a miscarriage, this should properly be recorded as ‘pregnancy-related absence’ and therefore should NOT be used when considering absence for such things as access to sick pay, redundancy selection, promotion, bonuses etc. Many women report that they feel pressured to return to work sooner than they feel able to because of fears of how their absence will be treated by their employer. Managers need to be aware that knowledge of someone’s miscarriage should not be used detrimentally against them when making decisions about their employment. A manager may think they are being kind to a female employee by not giving them a promotion ‘because they need time to recover from a miscarriage’, but this would amount to direct discrimination and any motives, whilst kindly meant, will not justify the treatment. Separately (and in my mind a bit confusingly), women have a right not to dismissed where the principal reason for the dismissal is their pregnancy. The ‘reason’ will be given a wide interpretation here, and therefore if someone is dismissed because they have taken a lot of time off following miscarriages, this could amount to an automatic unfair dismissal (which is a ‘day 1 right’ and not one requiring 2 years’ service). Can an employee take maternity leave if they suffer a miscarriage? Whilst it is doubtful that a woman would want to take a full period of maternity leave in these circumstances, she might wish to avail herself of some of the protections that maternity leave can bring (time off work which is not counted as sickness absence, maternity pay with the right to come back to her job). Certainly, if the miscarriage happens nearer the 24 week period and the employee has given her statutory maternity notification to her employer of her ‘expected week of confinement’ and her intention to take maternity, there is no reason why she cannot take a shorter period of maternity leave if she choses to do so. I am not aware of this actually happening, but it appears to be a possibility. Maternity leave and pay is specifically available to women who suffer a stillbirth because it amounts to childbirth which is ‘the birth of a living child, or the birth of a child whether living or dead after 24 weeks of pregnancy’. Being miscarriage-aware As with other ‘life’ issues for employees (for example, menopause), how an employer responds to an employee’s personal situation can turn an average employer into a great one. If you want to be in the ‘great’ employer category, you can start by making your organisation more miscarriage-aware. The Miscarriage Association have recently produced a fantastic information pack with loads of helpful detail and even a miscarriage policy: https://www.miscarriageassociation.org.uk/information/miscarriage-and-the-workplace/  It is well worth a look and also reminds employers that there are many people affected by miscarriage – including the often over-looked partner.  I was going to try to not mention COVID here – but, in these strange times, becoming a kinder workplace seems like a no-brainer. If you would like to discuss any aspect of this blog, please contact us on 0117 325 0526 or email Anne-Marie:  Anne-Marie Boyle Partner  ... Read more...

September 2020 NewsletterCongratulations, you’ve made it to September!  Many of us feel a milestone has been reached, whether that is a child-free home at last or a full or part return to the office.  So, put the kettle on and pat yourself on the back as you browse this month’s Newsletter for the latest employment law developments and maybe chuckle at this one we saw recently: “Dear September, I don’t want any trouble from you.  Just come in, sit down, don’t touch anything and keep your mouth shut.”   In this issue you can expect an update on the resurrection of the cap on public sector exit payments, further details on statutory payments for furloughed employees and the Job Retention Bonus scheme, the newly create Kickstart scheme,  self-isolation guidance for those returning from abroad and updated HR1 form for collective redundancies. In our case update, we focus on three unfair dismissal cases which respectively look  at ‘vanishing’ dismissals following successful appeals, a personality clash ending in a fair dismissal with no procedure, and dismissal relying on anonymous witness evidence. We also share with you (in our ‘nothing about employment law bit’ at the end of the Newsletter) a very well thought-through blog from friend of Menzies Law and business psychologist Caroline Gourlay.  Now we know that working fully or partly from home will be with us for the long-term, Caroline offers some very practical tips for navigating work/life balance. What we’ve been doing recently… After a rather busy 5 months, most of the team managed a short break during August and we’re now back and ready to tackle whatever employment law conundrums you throw at us.  We’ve certainly seen a big increase in redundancies and restructures and a real rise in enquiries to Tamsin James (who specialises in advising individuals) from people questioning the fairness, objectivity or procedure (or all three) of their respective redundancies.  A sharp rise in claims is almost guaranteed (as mentioned previously). Anne-Marie is busy preparing for our joint webinar on 15th Sept. She’ll join flexible working specialists Flexology, and culture & employee engagement experts Peopletopia, helping employers prepare for the array of changes they can anticipate in their workplaces.  There are still places available if you’d like to join the conversation: https://www.eventbrite.co.uk/e/return-to-work-webinar-registration-116867121707 Speaking of webinars, we’re continuing to plan for our next online events to replace our usual face-to-face Employment Law update.  Dates and full content will be ready to share with you soon.  As always, if there is a subject you are keen to hear about, please do tell Lindsey ().  On our list so far are: The changing face of the Workplace – how has Covid changed our concept of work and what does that mean for employers? Employment law – getting you ready for 2021. What’s on the horizon, things you may have missed, key themes we’re anticipating, cases from 2020 so far. Pay & Reward – what impacts are businesses likely to see in the age of Covid plus Pay & Reward Surgery. Bring your Questions to our guru, Jane Baalam. Home and flexible working are now in the spotlight. What do employers need to think about? What does it mean for your culture and communication? Business Immigration – how are things going to change as of 1 Jan 2021 for bringing in employees from overseas?   Here are all of the items we cover this month: Government Reforms (1): Public sector exit payments – CAPS LOCK ON… The Government’s new Kickstarter Scheme Coronavirus (Covid-19) – All things furlough (again!) Coronavirus (Covid-19): Beyond furlough – Job retention bonus scheme Coronavirus (Covid-19): Returning from abroad – self isolation guidance Collective redundancy: Government guidance and HR1 form Case update (1): Unfair dismissal – The ‘Vanishing dismissal’ Case update (2): Unfair dismissal – Personality clash S.O.S.R. dismissal Case update (3): Unfair dismissal – Anonymous witnesses   And finally our ‘nothing to do with employment law’ bit With increased home and remote working likely to be with us for the duration, Caroline Gourlay shares some tips in her blog to help you with that elusive work-life balance.... Read more...

Blog: Life after furlough – employment law considerations for cost-effective alternatives to redundancyThe length of time the economy has had to shut down as a result of Covid-19 means that businesses are facing tough cost-cutting decisions.   As redundancies are neither cheap nor easy, the alternatives to achieve savings yet retain skilled staff are very much worth examining.  This article looks at some of the options, together with the employment law issues to consider.  This piece compliments our webinar on this topic on Tuesday 23 June (more here if you’re interested: Menzies Law Webinar) Changing employees’ terms and conditions Adjusting employees’ contractual entitlements, such as pay cuts or reducing benefits, can make good savings. It can be surprising how often staff will be willing to agree to pay cuts in order to give a business a fighting chance of remaining solvent. Pay, benefits and hours of work will be contractual terms of employment for your staff and changing them can be legally challenging.  Sometimes making minor changes may be permitted under the contract (if the wording is there to allow it) but will probably not be sufficient for significant changes that will have a notable impact on income. For significant changes you will either need to obtain your employees’ individual consent or, if not forthcoming, taking the ‘nuclear option’ of terminating existing contracts and offering new ones containing the changes needed (so called ‘fire and re-hire’). Either route requires careful handling. If you decide to take the fire and re-hire option, you’ll need to be mindful of the legal pitfalls such as triggering your legal duty to consult and potential unfair dismissal claims.   It will require specialist advice from an employment lawyer, and I’d be happy to help. If you recognise a trade union for any sections of your workforce you have the additional option of using collective bargaining to reach an agreed change to pay and hours.  But bear in mind that this will only cover those roles that are agreed to be within the collective agreement.  Usually management roles will be excluded and so you will have to reach individual agreement with your managers. Pension contributions A reduction to employer pension contributions can look attractive but may still require you to consult with employee representatives.  Special consultation requirements apply to pension schemes.  Also bear in mind the minimum employer pension contribution thresholds set by current pension law. Lay-off and short-time working The Coronavirus Job Retention Scheme (CJRS) has, for many, avoided the need for lay-offs or reducing working weeks.  However, when the scheme ends (30th June at the time of writing), it may be that employers will reconsider these more traditional options. Check your employment contracts to see if you have the power to impose any lay-offs or short-time working.  Very few businesses currently have such terms although they were common until the 1980s.  Without this sort of contractual ‘permission’, you are back to the ‘changing terms and conditions’ section above.  Without your employees’ express and informed consent, you risk claims for unlawful deduction from wages, breach of contract and constructive dismissal if you were to impose a lay-off (temporary suspension without pay due to having no work for the employee to carry out) or short-time working (reducing hours and work and therefore pay). However, looking to the future, it seem worthwhile thinking about adding in a power to lay-off and short-time working for new starters.  It would be good to be better prepared if we ever face a similar sort of crisis. Reducing use of contract workers Dispensing with the services of casual workers, agency workers and/or self-employed consultants may well reduce your costs, but do make sure none of them qualify as ‘employees’.  If they do, they will have statutory redundancy pay and you might fall foul of unfair dismissal law.  This risk can sometimes be hidden and it is well worth a few minutes with a friendly employment lawyer to ensure you are in the clear. Also check any fixed-term contracts to ensure there is a ‘break’ clause allowing you to make an early termination.  If not, you could be liable to make payments to the worker until the end of the fixed term. Non-contractual benefits Non-contractual (‘discretionary’) benefits are easier to reduce/remove in hard times. Employees would probably rather lose these benefits or have them reduced , rather than face a reduction in salary or hours or losing their jobs, so this definitely an option to consider early on. Other options Redeployment, secondment and sabbaticals may also be on your list.   Redeployments or secondments need your employee’s consent (unless there is an express right to do so in the contract of employment.)  A sabbatical or career-break is simply time away from work and some employees can afford some time off.  Continuity of employment is preserved during a sabbatical and usually annual leave entitlement will continue accrue, which is a cost to bear in mind. Flexible working Part-time working or job-sharing can help reduce costs.  Seek consent here and set out the new ‘regime’ in writing.   Remote, home or flexible working all reduce overheads but be aware of our advice above on changing terms and conditions.  Also consider important issues such data security and health & safety. Communication, communication, communication! With any changes, engaging with your workforce will be key to getting buy-in. In our experience, open communication goes a long way to getting consent to changes, and obtaining their consent reduces your legal risk to almost nil. And lastly, if you need encouragement that a non-redundancy solution is possible, this is a great story of one manufacturing technology company’s successful approach.   Anne-Marie Boyle Menzies Law Anne-Marie Boyle is a Partner at Menzies Law, a boutique employment law firm.  We’ve been advising businesses through difficult times for over two decades and have plentiful experience guiding businesses through making these types of changes.  Please get in touch if we can help:  0117 325 0526 ⃒ ⃒ www.menzieslaw.co.uk  ... Read more...

Updates to Coronavirus Job Retention SchemeOur Menzies Law Guide to All Things Furlough went out to you on Thursday with the caveat that Government guidelines on furlough were changing rapidly.  Just to prove it, the Government has today updated (or clarified) some aspects of its Coronavirus Job Retention Scheme (CJRS) as follows: You can re-hire and furlough anyone CHANGED: (this is a big change)  You can re-hire and furlough anyone who was on your payroll on 28 Feb but then left you, for any reason.  So it’s not restricted to those you made redundant.  So now it could include those you sacked for something else or who resigned. Employees with caring responsibilities CHANGED: Employees who are unable to work because they have caring responsibilities resulting from coronavirus (COVID-19) can be furloughed. For example, employees that need to look after children can be furloughed. Shielding Employees CHANGED (the part in bold): You can claim for furloughed employees who are shielding in line with public health guidance (or need to stay home with someone who is shielding) if they are unable to work from home and you would otherwise have to make them redundant. Definitely no working at all for you while furloughed CLARIFIED: Furloughed workers definitely cannot work for you (or volunteer for you) in any way.  The rules now say that if you have work still to be done (e.g. critical business tasks) then that will have to be done by staff who are not furloughed. Another job while furloughed? CLARIFIED:  Yes, employees can start a new job when on furlough (meaning they might end up earning 80% of the old salary and 100% of a new one).  This was not prohibited in the earlier guidance, but the new guidance expressly allows it.  The guidance does say it has to be allowed under the old employment contract, but presumably the old employer can waive that. Commission pay CLARIFIED: an employer can reclaim 80% of compulsory (presumably meaning contractual) commission back from HMRC, as well as basic salary.  This is good news for car salesmen and estate agents.  But it can only be referring to the commission from past sales as the furloughed employees cannot be completing new sales when on furlough. ‘Fees’ CHANGED: employers can reclaim 80% of fees (whatever that means) from HMRC.  The previous guidance said they could not. Benefits CLARIFIED: the 80% does not include non-monetary benefits (e.g. the value of health insurance or a car). Company Directors CLARIFIED (although we all knew this anyway):  Company directors can be furloughed. They can still perform their statutory duties, but not other work for the company. Re-furloughing or rotating CONFIRMED: Employees can be furloughed multiple times, i.e. they can be furloughed, brought back to work, then re-furloughed (subject to each furlough period being at least three weeks). Written confirmation NEW: Employers must notify employees of their furlough status in writing (the previous guidance did not require it be in writing) and keep the record of that written notification for five years. Still no official news on holiday leave… However, the clever money (i.e. every QC’s blog that we’ve read in recent days) definitely seems to be on the idea of you allowing annual leave to be taken during furlough and paying normal (full) pay for those days, and that this won’t invalidate the furlough.  We’ve also seen a very good argument by leading lawyers that says you probably can’t instruct staff not to take holidays during furlough or to postpone them.   We will continue to update you as things change but if you need help or guidance on a specific issue,  please contact us on 0117 325 0526 /  ... Read more...