Blog: Is mediation at odds with being an employment lawyer?Rather like Luke, I have been on something of a journey over the past year. Whereas Luke’s route has been into executive coaching, mine has been into the fascinating world of workplace mediation. I have long-harboured an interest in mediation.  Does that sound rather contradictory coming from a lawyer who specialises in litigation?  I have always been a firm believer in looking out for alternatives to ‘fighting it out’ in an Employment Tribunal for my clients. This usually includes either some sort of settlement or persuading the other party to withdraw.  It can feel like a ‘win/lose’ or worse, a ‘lose/lose’ situation. As a lawyer, my involvement often comes about when someone has already brought an Employment Tribunal claim and the employment relationship has well and truly broken down. Let’s face it, when it gets to the stage where the employee is presenting 20 page grievances or has been absent on sick leave for 6 months citing workplace stress as the primary factor, the relationship is often already beyond repair. Reducing costs and damage Does it have to be this way?  I quite like the old cobbler’s saying ‘a shoe worth wearing, is worth repairing’. I would use the same sentiment with employment relationships. I firmly believe many relationships can be salvaged if caught at the right time.  Mediation has a real role to play in reducing cost and damage of workplace relationship breakdowns and reducing the risks of escalation. This is at the heart of why I’ve spent the last year training to be a work-place and employment dispute mediator. There are many past cases I’ve advised on where I believe, had mediation been introduced at the right time, then grievances, disciplinaries and even Employment Tribunal claims could have been avoided altogether. I will look at examples of these in future blogs. I love my role as an employment lawyer but I firmly believe mediation is a compliment to my main role.   Yes, successful mediation means employers will get fewer employment tribunals claims, but the main reason I am doing it is because some of those broken workplace relationships are definitely worth fixing.  With increased levels of conflict at work plus rising commercial pressures on employers, finding positive and cost-effective ways to resolve disputes has never been more vital. What sort of workplace issues is mediation suitable for? Some areas where mediation can be very effective include: allegations of bullying resistance to change, particularly for role changes perceptions of/allegations of harassment or discrimination personality clashes or family business disagreements If you want to know more in the meantime, do read this great CIPD report. Although written some time ago, it remains relevant and well-researched. Please do feel free to get in touch with me ( 0117 325 0526)  if you think you might have a workplace issue which could benefit from a mediated approach. I would be very happy to chat it through with you. Over the next few months lookout for more blogs from me about mediation: –       Why mediate? An exploration of the types of mediation, benefits, and outcomes mediation can offer and why it might work for you –       How different types of conflicts arise in the workplace and how they can be diffused –       Mediable and non-mediable matters – what are the best outcomes you can achieve and which cases tend to work best for mediation. –       The mediation process – what it looks like and how it works. Anne-Marie Boyle Partner  ... Read more...

Blog: What does the Uber case mean for employers?The recent Uber judgment in the Supreme Court  (full judgement available here) has provided yet more confirmation – if any were needed – that if you have someone working for your organisation as part of your workforce, delivering your products or services to your customers, then they are going to be your employees, or at least your ‘workers’. In other words, if it looks like a duck, quacks like a duck and walks like a duck, then it’s a duck. I’ve been surprised for just how long some employers have held out against this simple reality.  The law has been fairly clear about this for over a decade now, despite the continued valiant efforts by some employers and their legal teams to resist. An obvious decision The Uber decision will not have been a surprise to any employment lawyer, since it is based on a set of previous cases and a clear direction of travel that has been apparent in similar judgments in the last few years.  Uber itself would have always known that its model of treating their workers as self-employed was a challenging one under UK law and no doubt they and their lawyers have been preparing for this decision for many years.  In some ways, it is surprising that it took this long to be confirmed.  But then, it does take a long time for a case to reach the Supreme Court. Helpfully the latest Uber judgment puts a clear final nail in the coffin of the ‘traditional’ argument that the courts and tribunals should start by taking the contractual documents at face value,  only looking for ‘worker’ status if the activities of the parties to that contract differed substantially.  These contractual documents of course claimed that the worker was entirely self-employed for all purposes.  The Uber case makes clear that the contractual documents are no longer the starting point, and that the courts and tribunals should go straight to the reality of the relationship, day to day. The ‘Reality Test’ That ‘reality test’ shows these workers are not thousands of mini businesses in their own right, but people who worked for Uber, under a great deal of control. I have been working with many businesses recently, large and small, to help them review and improve their approach to – and tolerance of – those who ask to work as self-employed contractors.  As a very quick rule of thumb: If the contractor works for other clients at the same time as for you, does the work the way they want to do it, has their own limited company, uses some or all of their own kit, own website, does their own sales and marketing and charges you a fixed price for the project, they are very likely to be self-employed for both tax purposes and employment rights purposes. If they only work for you, use (some of) your kit, work the way you tell them to, don’t sell their services via their own website or sales activities, and get paid by you by the hour/day/week, then they are very likely to be either your worker or your employee. Now, there are many slightly different permutations of these two basic positions, but it usually takes me only 1-2 minutes of asking questions to work out whether someone is running their own small business and therefore genuinely self-employed or is working for an employer as their employee/worker. It’s presented as a complex area of law but I enjoy cutting to the chase and helping my clients keep it simple.  I’d love to advise you on your own situation if you’re uncertain or facing challenges: please contact me at . Luke Menzies Director March 2021... Read more...

Blog: Vaccine Refusal – can an employer insist?With a large number of people in the UK now vaccinated, employers are understandably keen that their staff should be part of that group.  With reports of individuals reluctant or refusing to have a vaccine and certain employers stating that they will make having a vaccine a condition of employment, we thought this was a hot topic worth looking at. Can an employer require a whole workforce to be vaccinated against COVID-19? Currently, vaccine priority is ‘grouped’ and as yet we’re not in a situation where everyone has had the ‘opportunity’ for a vaccination.  The priority groups are primarily set on the basis of age.  Introducing a mandatory vaccination policy now would likely be both unworkable and potentially indirect discrimination on the basis of age. Most younger people would not be able to comply with the policy simply because they do not yet have access to the vaccine. Further details of the priority groups can be found here. Even once all age groups are vaccinated, it is unlikely that a blanket requirement that the entire workforce should be vaccinated will be considered lawful.  Particularly given that the Government has confirmed that the COVID-19 vaccine will not be mandatory.  Also, ACAS guidance (available here) advises that employers should support staff in having the Coronavirus vaccine – but they cannot force staff to be vaccinated. A blanket requirement risks both unfair dismissal and discrimination claims so in the majority of cases, employers will benefit more from encouraging workers to take the vaccine and stressing its importance, rather than requiring them to take it. However, there are some circumstances where it may be considered lawful, and we consider these below. In what circumstances might employers make the vaccine mandatory? UK employers have obligations under health and safety law to reduce health risks to employees and others to a level which is as low as reasonably practicable. Therefore, the vaccine should be considered (as part of COVID-19 risk assessments), as a potential measure to control the risks associated with contracting the virus at work. Employers may decide, following such a risk assessment, that having vaccinated staff only in particular roles is necessary and reasonable in reducing the risk. For example, an instruction to a care worker to have a vaccine may be much more reasonable and justifiable than it would be for office staff who can work from home. In the care sector, for example, a policy of mandatory vaccination in certain sectors is more likely to be justified for purposes of indirect discrimination on objective grounds to protect the vulnerable. The reason for the requirement to have a vaccine needs to be considered carefully on a case-by-case basis. A flexible and nuanced approach will reduce the risk of employment claims. What are the potential legal risks if employers make vaccination mandatory? The main legal risks for employers if they require the workforce to be vaccinated are unfair dismissal and discrimination claims. Discrimination Individuals with protected characteristics could potentially be discriminated against. If an employee refuses to be vaccinated because of a protected characteristic, and this results in detrimental or disciplinary action from their employer, they may also be able to claim constructive or actual unfair dismissal. It is important to remember that discrimination claims have no financial cap, so a successful claim could potentially come with high costs for the employer. Disability: Some individuals may be advised not to have the vaccine due to an existing medical condition or allergy, or they may be unable to take it due to a disability. Such individuals may be considered disabled and they may be treated less favourably than their colleagues should an employer require vaccination.  They could bring a direct discrimination claim if they suffer detriment as a result. Employers also have a duty to make reasonable adjustments for disabled employees.  Pregnancy and maternity:  Expectant mothers have also been advised not to have the vaccine.  To avoid indirect discrimination, employers therefore need to ensure that any vaccination instructions or policies cover pregnant women.  It would also be prudent to take into consideration the fact that many women choose not to tell their employer of their pregnancy until three months’ gestation, and also the fact that women who are trying to get pregnant may also refuse a vaccine. Age:  Any differences in treatment between vaccinated and unvaccinated staff could be indirect age discriminatory – unless the treatment can be objectively justified. This is because the vaccine roll-out is being prioritised largely based on age, with older (and therefore higher risk) individuals being offered the vaccine first.  Therefore, older workers will be required to have the vaccination at an earlier date. Religion or belief:  An anti-vaccination stance could amount to a protected philosophical belief and therefore attract protection.  A successful claim using this protected characteristic would need to establish that the belief was genuinely held, cogent, serious and worthy of respect in a democratic society. Unfair Dismissal If an employee refuses to follow an instruction to be vaccinated, an employer could start disciplinary proceedings and ultimately dismiss the worker.  However, dismissal is only likely to be fair if the employee has unreasonably refused to comply with the employer’s request to have the vaccine.  Employers should be careful that requiring the employee to be vaccinated is a necessary and reasonable precaution to take in reducing the health risk.  As always, the employer should give careful thought to whether there are any reasonable alternatives to dismissal (e.g., reallocation to a role where non-vaccination would not be problematic or working from home arrangements). Employers should also consider that an employee faced with a “no jab, no job” scenario could resign in response to this requirement and claim constructive unfair dismissal.  Such claim may well succeed if the requirement was unreasonable. With the vaccine take-up rate improving all the time and few side effects being reported, we are hopeful that issues relating to vaccine refusal will be few and far between.  In the meantime, employers should recommend and encourage rather than force employees to be vaccinated. If you are unsure of your rights as an employer or employee and require further details on the above areas, please contact the Menzies team so we can discuss these areas further ( / 0117 325 0526). Anne-Marie Boyle Partner... Read more...

Menzies Law Newsletter 2021 Issue 1Welcome to our first Newsletter of 2021.  Sadly Lockdown 3.0 is not the start to the New Year we were all hoping for. Although we can’t offer any great solutions to the general gloom, we can at least help keep you up to date with HR/employment law news. The Government has extended furlough again, this time until the end of April and, happily, will continue to fund 80% of wages.  It has also given welcome clarification that employees with caring responsibilities can be furloughed; updated its guidance on working safely during the Coronavirus; and provided further guidance on employer’s Gender Pay Gap reporting responsibilities. We also update you on increases due to statutory rates in April. In our first case update of 2021 we look at the EAT’s decisions on how far the law goes towards equal treatment for agency workers.  We also consider the current absence of interim relief for employees bringing discrimination claims, which is probably unlawful. What we’ve been doing recently… The year has started with a flurry of furlough, gross misconduct, investigations, redundancy and exits advice.  We’ve already won 2 employment tribunals on behalf of our clients, a pleasing start to the year, and we’re helping several businesses navigate the new business immigration rules which came into effect on 1 January. At the time of writing, Anne-Marie is completing her accredited Workplace Mediation training.  Mediation can significantly reduce the damage, costs and risks of workplace conflicts escalating.  She would be keen to assist any organisation seeking to resolve a workplace issue.  If you would like to discuss how she can help you, please get in touch: The recent campaign ‘Brew Monday’ by the Samaritans caught our eye this month.  Blue Monday is the third Monday in January and supposed to be the most depressing day of the year.  This year, the number of adults suffering from depression has doubled thanks to the pandemic.  The Samaritans want to encourage us to reach out to friends, family, colleagues for a virtual cuppa.  We’ll drink to that! https://www.samaritans.org/branches/central-london/brew-monday-2020/ Lastly, do tab down to our last Newsletter item where we bring you 5 good news stories from 2020 which you may have missed. We remain hopeful that 2021 will bring more of the same.   Here are all of the Government reforms and case updates we cover this month: Coronavirus (Covid-19):   More furlough! Coronavirus (Covid-19): LOCKDOWN 3.0 – Government guidance Government reforms (1): Return of the Gender Pay Gap Government reforms (2):  Increase in statutory rates Case update (1): Agency workers – Terms & conditions Case update (2):  Discrimination – Interim relief And finally, our nothing to do with employment law section It’s often said that bad news sells.  Well, we’ve had enough of bad news and we’re surely not alone.  We’d like to share with you some of last year’s good news which may have got forgotten or simply passed you by.  Lots of cause for celebration from these 5 items, we think: Germany is turning 62 disused military bases from the Cold War-era into wildlife sanctuaries, increasing by 25% Germany’s total area of protected wildlife. Germany has a great pedigree here;  Duisburg-Nord Landscape Park was transformed from a former smelting works 30 years ago and now attracts c. 1 million visitors every year. Rome’s answer to overflowing waste bins was to create an initiative to allow metro travellers to swap empty plastic bottles for tickets. The City’s inhabitants get Euro 0.05 credit for each plastic bottle recycled. About 30 bottles gets you a free ride. Captain Sir Thomas Moore raised £33m for the NHS in 2020.  RIP Captain Sir Tom. Kamal Singh from Delhi became the first Indian dancer to win a place at the prestigious English National Ballet. His achievement is all the more remarkable because he didn’t take his first ballet class until he was 17 (about 10 years after most professionals started lessons) and his family couldn’t afford to pay for lessons. However, Kamal’s exceptional talent was spotted and championed by his Argentinian dance teacher Fernando Aguilera. Crowdfunding did the rest. Marcus Rashford led a political campaign to combat child food poverty in the UK.  His campaign forced the Government to U Turn on it’s refusal to fund free school meals.  Rashford’s efforts and resilience saw over a million people sign a petition in favour of free school meals. As importantly, his work was the catalyst for dozens of communities and volunteers across the country to deliver food packages to families in need during school holidays.... Read more...

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...