Blog: Changes to Right to Work checks from 6 April – what you need to knowOn 6 April, the Government is changing the way in which employers will check the right to work of both employees and potential new hires.  Here we discuss what those changes mean for employers. The move to digital identity certification only for foreign nationals  At the moment, foreign nationals who hold biometric cards can choose to demonstrate their right to work in the UK in 2 ways; by showing an employer their ‘physical’ card, or by sharing their status via the Home Office’s online service.  Essentially employers and individuals have been able to choose between producing and checking a physical document (in each other’s presence) or sharing their immigration status online (without having to meet in person). At the end of last year it was announced that from 6 April 2022 biometric card-holders will only be able to demonstrate their right to work in the UK using the Home Office online service. So from next month employers won’t be able to accept a physical card for the purposes of a right to work check, even if the card shows a later expiry date. Online checks for British & Irish Passport Holders  Currently a British or Irish national can only evidence their right to work in the UK by presenting their ‘physical’ documents to the employer – no online service exists for employees to demonstrate their right to work in the UK.   (You’ll be aware that concessions were made during the pandemic allowing scanned versions and video calls, but this ends 5 April 2022.)   However, from 6 April 2022 new online right to work checks will be available for British and Irish Nationals. To take advantage of this new facility, the employer would need to have subscription with a certified Identity Service Provider (IDSP). The IDSP will  act on behalf of the employer to carry out the right to work checks.  There will be a fee payable for this service. So far there are no IDSP’s registered.  As registrations develop a list will be available here allowing employers to source a provider to conduct remote right to work checks on their behalf.  The employer remains responsible for the right to work check so employers must ensure the checks are being conducted in accordance with the Home Office’s guidance. Where British and Irish employees are concerned, employers retain the option to check employees passports themselves but this will need to be conducted ‘in person’ by the employee presenting their original documents to their employer. Updates to Codes of Practice With the above changes come updates to the Codes of Practice for both Preventing Illegal Working and Avoiding Discrimination While Preventing Illegal Working.  The latter has been extended to include for example, the need to ensure during right to work checks that employees/prospective employees are not treated more or less favourably if they hold an e-Visa. Getting to grips with new government checks is never easy so I’d always recommend employers understand and get acquainted with online right to work checking process in advance of next month’s changes. If you have questions about the right to work process or you have questions about employing non-UK workers we’d be happy to help: get in touch on 0117 325 0526 / Anne-Marie Boyle 1 April 2022... Read more...

Blog: The disaster-movie that is P&O– A lesson in how not to make redundancies Few of us can have failed to be horrified by last week’s news of P&O Ferries’ recent dismissing of their 800 strong sea-faring crew.  The scenes on Thursday were quite extraordinary, with employees being told to disembark all passenger and cargo and then wait for an announcement.  That announcement was a short video telling staff they were all being made redundant with immediate effect. It is hard to imagine, a more casual disdain than sacking 800 workers ‘remotely’ in a message devoid of empathy.  How will the communities (particularly in Dover, Hull and Stranraer) recover from what is likely to feel like an act of betrayal? There is so much to unpick here, in employment law terms, that it might not be possible to do it justice in one blog.  Although most employment law rights can be blatantly ignored by a determined employer, the cost (both financially and reputationally) of ignoring the law usually acts as a major deterrent.  Apparently not so here.  On the face of it, P&O Ferries have ignored pretty much every accepted employment law norm to bring in their plan to ‘save the future of the company’ with immediate effect. Ignoring Collective Consultation rules First, we have their apparent complete ignoring of collective consultation. The law requires employers to collectively consult for a period of 45 days in the event it wishes to make redundancies on this scale. Failure to do so can bring about unfair dismissal claims and also ‘protective awards’ for failure to consult.  Whilst an Employment Tribunal has a discretion as to how much to award per employee (13 weeks’ pay or less), there is surely no defence here. Therefore P&O Ferries will be looking at a hefty award being made against them. On the back of a cereal box, I have calculated this to probably be £5-7 million. This claim will be brought by the trade unions on behalf of their members, so not ‘settled’ with individual settlement agreements. Criminal offence too One lesser-known angle here is that it is a criminal offence for an employer to fail to notify the Secretary of State (using the HR1 procedure) of impending redundancies. Apparently Grant Shapps was notified the day before the announcement. However his reply went to someone who had retired several months previously. The HR1 form is supposed to include the contact details of the business making the redundancies and other information – and if incomplete is rejected.  This is potentially a personal criminal liability for the directors of P&O.  One has to wonder what they are thinking – and it will be interesting to see what further facts emerge here. 800 unfair dismissals There is likely, of course, to be 800 unfair dismissal claims too.  From what we know, there has been no redundancy dismissal procedure at all.  It feels likely that each person will have a strong claim for an unfair dismissal on the grounds of it being procedurally unfair.  (In fact, they are probably automatically unfair – see below). Presumably P&O Ferries have factored this in, when deciding how to calculate the apparent ‘enhanced payments’ that are being offered to the seafarers. I expect we will hear more news of this in the coming days/weeks. I doubt very much that P&O Ferries will be able to keep these offers confidential. Subverting TUPE rules It is difficult to see how their contracting-out of their seafaring workforce to a ‘third party agency’ could be anything other than a TUPE transfer. However, as with other areas of employment law, P&O Ferries appear to have ridden roughshod over this rule by dismissing all of their employees pre-transfer. Such action will mean all the dismissals are automatically unfair dismissals.   I expect that, in the grand scheme of things, P&O Ferries have also factored this in.  I expect the ‘third party agency’ has made sure they have cast-iron warranties from P&O Ferries to ensure they are not liable for any ‘pre-transfer’ dismissals. Health & Safety? The health and safety of crew and passengers is paramount in the shipping industry. Whilst P&O Ferries must have presumably risk-assessed their plan to instantly replace 800 employees with agency workers, I wonder if they will be able to persuade the authorities – or their passengers – that their vessels remain safe?  The new crew will not have sailed the routes or probably operated the vessels before.  Who would want to sail on the first few crossings?  Not me. Cynical This is such a cynical move by the ferry operator, showing such contempt for the law, good practice, its staff, local communities and passenger safety that it is quite extraordinary that it has happened in 2022.  I’m sure this is a news story that will run for some time. In the meantime, let us hope it does not encourage other employers from acting similarly. If you’d like to discuss this or any other aspect of employment law, please do contact me:           ... Read more...

Menzies Law Newsletter 2022 Issue 1We’re hoping this Newsletter reaches you at the same time as some much-needed signs of Spring! After a long Winter we’re sure you are as keen to see some sunshine and colour as we are. As you’ll know, it’s that time of year for new statutory rate increases.  We’ll update you on those in this issue, as well as our Spring Employment Law Update and legislative changes including right to work checks and the Government’s U-turn on mandatory vaccinations in care homes and health and social care settings. In our case updates we look at a variety of cases and their implications; Two Court of Appeal’s decisions conclude that: workers are entitled to carry over taken unpaid leave and be paid for it at the end of their employment (making misclassification of workers as self-employed an expensive mistake!); and an employee’s (dangerous) practical joke was not sufficiently connected to his employment for the employer to be held vicariously liable for the personal injury that it caused. And two Employment Appeal Tribunal decisions; bringing vexatious grievances can amount to gross misconduct, a tribunal can extend time in a discrimination claim where the employees have waited to issue proceedings while pursuing grievances. What we’ve been doing recently… Apart from battling more Covid (two of the team are recovering from recent bouts), we’ve been busy delivering lots of legal training to our clients; employment law skills for managers, performance management and TUPE workshops.   We’d be happy to help on any legal training requirements you may have. Please get in touch with Lindsey (). Also keeping us out of trouble has been a rather high volume of tribunal work.  Cases seem to be complex and often involve multiple claims and with themes including hidden disabilities and ‘constructive knowledge’, sex and race discrimination claims.  On the non-litigious side of things, Business Immigration advice has been significant in recent months with several employers needing to sponsor new employees from overseas.  There has also been a volume of Reward activity with businesses looking at everything from Equal Pay Audits to new pay structures. Spring Employment Law Update We’re very pleased to let you know that our Spring Employment Law Update will be on Thursday 19th May at Bristol Zoo Gardens. Those of you local to Bristol will know that after 186 years at this iconic site, the Zoo will close this year.  Its sale will help fund a new zoo at a new site, due to open in 2024.  It seems only right that we should hold our Spring event here so that we can all have one last visit before the doors close for good. Starting at 3pm and finishing at around 7.30pm after some drinks and nibbles, the gardens will be open for any of our delegates keen to meander and clear their mind after an intense few hours of employment law.   Save the date for now and we’ll share details of content soon… Here are all of the Government reforms and case updates we cover this month: Government reforms (1): April Changes – Are you ready? Government reforms (2): Compulsory vaccines – to be cancelled Case update (1): Holiday pay Case update (2): Vexatious grievances and unfair dismissal Case update (3): Vicarious liability Case update (4): Discrimination and time limits   And lastly, our nothing to do with employment law bit… Is hiring a Happiness Officer on your radar? These businesses think so…... Read more...

Blog: Hidden Disabilities – the pitfalls for employers and how to avoid themOur firm has increasingly been helping our employer clients defend disability discrimination claims in the Employment Tribunal for ‘hidden disabilities’. In this blog I discuss the risks for employers and my tips for avoiding them.  Me and my colleague Tamsin James will be expanding on this topic in our next employment law update event on May 19th.  Do come along if you can make it. Hidden disabilities are where employees do not disclose that they had any disability at the time of the events they are complaining of.  In some cases, they had not even been diagnosed at the time with the condition they later use for their disability claim! So we refer to such cases as ‘hidden disability’ claims because of the fact that the (alleged) disability was not disclosed to the employer (at the time). Under the Equality Act 2010, a person is classed as ‘disabled’ if they have a physical or mental impairment which has a “substantial, long-term adverse effect on their ability to carry out daily activities”.  Most mild and/or short-term medical conditions will therefore not count as a disability (e.g. the flu, a broken leg, short-term anxiety, recovering from an operation).  But any condition that does impact on basic day-to-day activities and lasts 12 months (or is likely to do so) will come within the disability definition – and sometimes this can surprise an employer. The problem for employers The difficulty – and growing legal risk – for employers is where they have not been told of the condition.  Either they’ve not been told about it at all or they’ve not been informed of its severity, extent and/or long-term nature. Sometimes an employee will claim that in fact their employer did know of their condition but failed to appreciate it was a disability.  Sometimes, they will claim that their employer did not know many details of their illness but knew enough to have put the business under a duty to investigate further (e.g. ask for a medical report). Increasingly, common ‘hidden’ disabilities are mental health issues (e.g. anxiety,  depression) or psychological problems, such as Asperger’s, autism, dyslexia and ADHD (often collectively called ‘neurodiversity’). Deemed to know An employer can be liable for disability discrimination if it either knew of the disability or did not directly know but ‘could reasonably have been expected to know’ from the warning signs it was aware of.   We call this having ‘constructive knowledge’ of a disability. Either knowledge or constructive knowledge creates the risk of a potential disability discrimination claim.  Genuine and complete lack of knowledge is usually a complete defence to such a claim. It’s worth remembering that this extends to job applicants, apprentices and contract/agency workers, as well as current employees. Our tips for employers Employers are expected to take ‘reasonable steps’ to find out if a worker has a disability, if they can see some warning signs.  Here are some tips that will help, based on our experience of managing such claims: With every disciplinary, poor performance meeting or dismissal, ask yourself ‘could there be any mental health or neurodiversity issue here?’ With potential sickness warnings or dismissals, have you investigated the condition sufficiently? Early intervention is a distinct advantage.  The earlier you spot a disability the better the outcomes for all Familiarise yourself with the signs of neurodiversity.  The CIPD website has a very helpful paper, Neurodiversity at Work. Consider taking occupational health advice (this can be confidential advice to you only, if you prefer). Have good policies and practices in place – especially an up-to-date (and internally publicised) Equality policy.  Equality training is also a wise investment (we offer great Equality Diversity and Inclusion training if you need some!). Consider investing in Mental Health First Aid and basic neurodiversity awareness training for all managers. Hidden disabilities are becoming an increasing risk for employers.  We’d strongly recommend you take legal advice if you have an issue or concern. Do you need advice about a hidden disability claim or are you concerned you may have one on the way? Please get in touch if you’d like to discuss how we can help:   / 0117 325 0526. Luke Menzies Director... Read more...

Blog: The real costs of conflicts in the workplace and cost-effective solutionsMy third blog in the series about mediation was always going to be about conflict in the workplace – and where mediation fits in as a solution to such conflicts. And then, as if by magic, ACAS releases a fascinating report called ‘Estimating the costs of workplace conflict’  and it practically wrote my blog for me. The ACAS report really is a good read.  Fortunately, I have read so that you don’t have to!  The figures involved are startling, but not, I would say, wholly surprising. The cost of conflict The main headline is that the estimated total cost to UK organisations of conflict at work is £28.5 billion annually (which equates to more than £1000 per employee).  Nearly 10 million employees report that they have experienced conflict at work with close to 5 million reporting that conflict caused them stress, anxiety and/or depression. 900,000 took time off, 500,000 resigned and 300,000 were dismissed.  Those are some pretty big numbers. The costs themselves can be broken down into four main categories: Costs of resignation, sickness absence and presenteeism (ACAS defined this as ‘working whilst ill’) Costs of informal resolution (including either internal or external mediation) Costs of formal procedures – grievances, disciplinaries, appeals etc. Costs of litigation (including management time, legal fees and compensation/settlement agreements) There are also the ‘hidden’ costs which, to be fair, are much harder to put a figure on. These tend to be impacts to well-being, workplace culture, and the costs to wider society. It is very clear from the report that whilst there are costs to using informal resolution, the costs to an organisation of conflict take a major hike upwards when an employee resigns or is dismissed. The ACAS report echoes my comments in my first blog on mediation; that workplace relationships are much harder to save when formal procedures have been instigated (by which I mean grievances, disciplinary, sickness and poor performance processes). Conflict in the workplace Conflict theory is a fascinating topic.  For what it is worth, in my experience, where you get humans, you get conflict. It is just a fact of life (and the workplace) and not something that should be necessarily viewed negatively or an indication that there is something wrong with your organisation. Much good can come out of conflict, particularly where it is resolved quickly in the form of stronger workplace relationships, creative approaches to building solutions etc. Conflict isn’t confined to the typical manager/employee relationship, it arises  between peers and at both senior management and director levels. Mediation is rarely used but highly successful when it is It surprised me that only 5% of employers indicated that they had undertaken workplace mediation in order to resolve their conflict. This tends to suggest that most organisations move from informal resolution (i.e. talking to your manager or maybe HR) straight to grievances/disciplinaries without considering mediation. This is a missed opportunity as in  74% of cases using a mediated approach, this had in fact resolved their workplace dispute. That is a pretty good success rate by anyone’s reckoning. Obviously, there is a cost to the workplace for mediation (whether internal or external), but if it saves a workplace relationship, that has wider implications for a better workplace AND it saves money in the long-term.  That’s a no-brainer to me. It’s arguable that mediation costs would be a ‘good investment’ for businesses as they may reduce the longer-term negative impacts of workplace conflict. Tips for reducing the costs of conflict in the workplace Whilst you are not always going to have a conflict-free workplace, these are my top tips for reducing the costs to your organisation: Invest in management training that trains your managers to be people managers.  Too often people are promoted because they are good at their jobs – not because they are good with people. When I was a Saturday girl at Boots back in the 1980’s, their policy was that only pharmacists could be store managers. I have to tell you, they were great pharmacists, but they were not good managers.  ACAS talks about managers needing ‘core people sills’ in order to have quality interactions with their staff. Ensure that issues are dealt with as quickly as possible – either with informal resolution or through using poor performance procedures where there are performance issues. All too often managers fail to address performance issues and then ending up ‘managing someone out’ or they start a process far too late and get accused of bullying, harassment or discrimination. Ensure your organisation is ‘conflict competent’. By this I mean that managers are properly trained in conflict resolution and how to handle difficult conversations. Also consider using mediation as it both works and it avoids that jump straight to grievances and disciplinaries. (see my previous blog for details of the benefits of mediation) Ensure employees have a voice and representation. Lack of communication or lack of avenues to raise issues is a major source of conflict in any organisation. Finally, it is the case that conflict has been suppressed during the pandemic as people had other things to worry about.   As people return to work after a lengthy furlough period or things just return to a more normal situation, conflicts are likely to re-emerge. Issues such as restructuring, economic pressure and uncertainly, the fact that some organisations have furloughed staff on 100% pay whilst other employees have worked their socks off will leave many people feeling unsettled and sometimes aggrieved.  I anticipate a high volume of conflicts in the coming 6-12 months. Do you feel a workplace conflict bubbling that may benefit from mediation? I’d be happy to have an exploratory conversation.  Please email me: or call our office on 0117 325 0526. Next time I am going to write about the types of workplace issues that work best with mediation – and those that don’t.... 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