June 2017 Newsletter – Education Sector

It’s June and the month of warm (some of them too warm!), long, sunny days or, failing that, at least there’s been the Election and the wacky hats of Royal Ascot for a bit of light entertainment! However, we’ll try to compete for your attention with our update on HR/Employment law news. This month we keep you informed with a ‘back to basics’ FAQ session on Apprenticeships and also the Levy and a reminder and update on the General Data Protection Regulations due to come into force this time next year.

Our case update this month focuses on the rights of workers mistakenly labelled as self-employed to carry over of statutory annual leave entitlement, making an employee redundant following a period of long term sickness absence and whether it is discriminatory to pay at different rates for a man taking shared parental leave than a woman taking maternity leave.

What we’ve been doing in the Education sector recently…

This month we hosted a special event around the theme of  ‘How to get the best from your Trade Union relationships’. It was one of most highly attended seminars we have held and whilst it wasn’t specifically aimed at Colleges, it was lovely to see a number of you there.

There weren’t too many horrors stories, but we know that several delegates went back to work resolving to pull out (if they could find them!), their Union Recognition Agreements, dust them off and take a good look at them to see if they were still ‘fit for purpose’. We are currently helping a number of businesses, including colleges, update their TU documentation, so if you need a hand, give us a call and we would be happy to pop in for a chat and coffee and let you know how we can help.

Anne Marie Boyle
Senior Solicitor
or call 0117 325 0924

 

May 2017 Newsletter – Education sector

It’s May, named after Maia, the Greek goddess linked to spring and growth.  We think it fitting therefore that this month we were all, including employers, asked to open up our minds during Mental Health Awareness week (from 8 to 14 May) and take a fresh look at mental health.  We’re doing our bit to take part in this Newsletter, by looking at the impact of mental ill-health in the workplace and what employers can do to support staff suffering from the condition.   We also update you on the Government’s Response to the ‘High heels and workplace dress codes’ report and the latest update on the ongoing saga of holiday pay – although it’s good news for employers this time!

Our case update this month focuses on whether a poor attitude to organisational change can amount to gross misconduct, despite procedural failings; whether TUPE Employee Liability Information needs to include detail as to whether employees’ entitlements are contractual; and the EAT’s decision that it is discriminatory on grounds of disability to make a job applicant with Asperger’s syndrome sit a situational judgment test (multiple choice test) as part of the recruitment process.

What we’ve been doing in the Education sector recently…

This month we hosted a special event for our College friends around the theme of Equalities. It is such a wide topic but we managed to squeeze in a review of all the most recent disability discrimination cases (the area of discrimination law where we see the most legal cases), the clash of protected characteristics in the workplace, and gender pay gap ( Luke’s favourite topic).

We were also very lucky to be joined by Clare Peterson who is the Equality and Diversity manager at the University of Gloucestershire (her remit covers both students and staff). She had us all thinking about our unconscious biases during her fascinating slot. Thank you to those who attended and the lovely feedback. We will look to run this course again later in the year as we know it is such a relevant topic for Colleges.

Anne Marie Boyle
Senior Solicitor
or call 0117 325 0924

 

Blog: Trade Union Law Part 2 – How to get the best out of your trade union relationships

In the first part of our trade union law series, we looked at the recent changes in TU law and how they could affect your business. This time we’re looking at the tricky business of maintaining a healthy and mutually beneficial relationship with your TU.

At Menzies Law we have over 20 years’ experience of working with business clients and their recognised trade unions. We’ve probably seen most things that arise with these types of relationships – the good, the bad and the ugly. So, we have gathered our collective knowledge to create a list of our top tips for getting the best out of your organisation’s trade union relationship.

1. Remember that you are both working for the same mutual aim of improving organisational performance and sustainability, which in turn benefits both the business and employees

It can be easy to lose sight of this sometimes, particularly if your trade union relations are currently very much ‘us and them’. Remind yourself and your union that your aims which relate to improving working conditions, increasing performance and the sustainability of the business will in turn mean greater job security and a better place to work. In our view, things work better if the business and the trade union both acknowledge that the other has a legitimate and valued purpose.

2. Analyse the working relationship you currently have with your union

How would you characterise your union relationship? Is it friendly – this is definitely a good place to start, but is it too friendly?  At the other end of the spectrum, are relations toxic, combative? Or perhaps they are somewhere in-between – frosty? Distrustful? Wherever you are on the spectrum, does it need to change?

In our experience, the best working relationships are definitely on the friendly end of the spectrum, but they still remain professional and based on mutual respect where either side is prepared to challenge where it is necessary.

3. Toxic union relationships can be turned around – but it takes time and commitment

The reason why relations with a union within a particular organisation are bordering on the toxic is often long forgotten in the mists of time. If yours is one of them, it is time to shake it up. No-one gains from a relationship like this and as a business you are entitled to benefit from a professional working relationship with your union.  This cannot be solved overnight and will involve some time and commitment. One of our client’s relationships with their union was taken to the brink last year when their union brought industrial action over proposed changes to pay. A lot of trust and good-will disappeared as a result of this process, but one year on, they are happily working together sorting out a TUPE transfer. How have they managed this? By meeting face-to-face with the union after the industrial action was completed, acknowledging that they had all been through a difficult time and making a professional commitment to repairing their relationship for the good of the organisation and its staff.

4. Adopt an employee relations strategy – and stick to it

We have seen these developed in all sizes of businesses and they can be really effective. The very best ones ensure that the employee relations principles and processes are aligned closely with the company’s strategic goals: essentially, everyone is pulling in the same direction. Also, they emphasise the need for positive leadership, strong working relationships and meaningful consultation.  However, this type of good employee relations strategy does not appear over-night, nor is it created by one document. It will be a sizeable commitment for a business and one that will full need support from the Board.

5. In the words of Spandau Ballet – ‘Communication let me down, and I’m left here’

We all know it is true, but it is too often ignored – regular communication between management and the recognised trade union vastly improves the quality of the working relationship and minimizes conflicts. In our experience, if an employer is in constant communication with its union and involves them in formulating the best strategies to handle issues that affect the business, the employer and union can maintain a good, conflict-free working relationship. This doesn’t mean you should ignore your own workforce or leave the communication down to union. It is important for businesses, even with strong union relationships, to maintain the communication link with their staff, particularly where they might have a different stance or angle to present than the union.

6. Keep a regular review on your trade union documentation

We have seen some very old and crusty collective bargaining agreements in our time, dating back many years. Sometimes businesses can’t even find their collective agreements when we’ve asked for them.  For a living relationship, we are often surprised by how little thought is given to the actual documents governing the relationship. If your collective agreements are over five years old, we recommend that you dust them off and have a good look at them. Are they working? Are they fit for purpose? Do they properly reflect the working relationship you have (or more importantly, wish to have) with the trade union? If not, it is time to update them.

7. Know the law relating to trade union relationships – or know where to look for help

We’re lawyers, so we would say this, but… Trade union law is highly complex and covers everything from recognition and de-recognition, collective bargaining and statutory consultation, industrial action, collective agreements and contracts, and not forgetting right to time off work for trade union activities. Quite a list!  The more you know, the better equipped your operational managers will be to deal effectively with trade unions during the course of their day-to-day managerial activities.

8. And in the words of Depeche Mode – ‘People are people so why should it be, you and I should get along so awfully’

Where people and human relationships are involved, it is hard to avoid bumping up against some psychology. As we have said above, your organisation’s relationship with its union is a ‘living’ one and when working best, your mutual aims will be aligned. As with any relationships, however, there needs to be investment to get the best out of it!  There will be certain people in your business who will hold the keys to the trade union relationship and you should consider – are they right for the job? Do they need some help? They might benefit from some specialised training to help them develop their relationship with the union. This could include:

  • Understanding the influence triggers that people respond to when making choices and how to appeal to their preferences
  • Understanding how you negotiate – is it a positive style (open, questioning, listening, being realistic) or a negative style (combative, point-scoring, personalising)?
  • Recognising different personality types and why some people are “difficult” to engage with.

If you’ve found this series on TU law helpful, and would like to find out more, or you need some advice for your business regarding TU relationships, or any kind of employment law, please get in touch by emailing or call 0117 325 0526.

Specialist trade union training event –  8 June, Leigh Court, Bristol

For managers and HR professionals working in companies with trade unions, we are holding a ‘not-to-be-missed’ TU law event in June, that will bring you right up to date with all TU law changes, and give you plenty of practical advice on getting the best from your trade union relationship.

The event will take place at Leigh Court, Bristol, Thursday, June 8th from 9.30am – 1pm. Email if you’d like to receive an invitation to this exclusive event.

Blog: Trade Union Law Part 1 – The new changes explained and how they will affect your business

Manifesto promises and climb-downs?

There is something about the trade union movement that has always engendered strong feelings in this country (both for and against) and you don’t need to read the papers often to see how much interest there inevitably is in strike action (the junior doctors and Southern trains, being two very high profile and recent examples).

Latest figures from the Office for National Statistics show that the overall number of trade union members has increased by 36,000 to 6.49 million people in 2016. The figures also reveal that the number of trade union members in private sector employment has increased for the fifth consecutive year.  Particular sectors showing growth in trade union membership are transport, construction, logistics and communication.

The Conservative party made it an election manifesto promise that they would dismantle what it considered to be ‘disruptive and undemocratic strike action’. There probably isn’t much argument that they inherited the most employee/trade union friendly laws we have ever had in this country introduced by the successive Labour governments of the 90’s onwards.

Therefore, to follow up on their manifesto commitment, the government has introduced the Trade Union Act 2016. It actually came into force in a piecemeal fashion but the majority came into effect on 1 March 2017.  Depending on whose rhetoric you believe, this is either the ‘biggest shake-up of trade union law for 30 years’ or a ‘hugely reduced version of a supposed flagship piece of legislation.’

Trade Union Act 2016 – the key changes

Either way, there are changes and if you have a trade union relationship, you will want to be aware of them. These can be summarised as follows:

Legal strike action will be harder to achieve

1. It will now be much harder for a trade union to achieve a legal vote for strike action. Before 1 March 2017, a trade union wanting to take strike action would have to achieve a simple majority from its members who actually voted. A trade union will now have to show that at least 50% of those eligible to vote, did actually vote on the ballot. This is easier to explain with figures. Pre 1 March, say a manufacturing firm has 600 union members. In a ballot on industrial action – if only 100 members actually bothered to vote – then as long 51 voted in favour, there could be lawful strike action. Post 1 March, at least 300 members will now have to vote and in order to get a vote to support strike action, 151 of those would have to vote in favour (a simple majority).

2. It is going to be even harder for a trade union to achieve a legal vote for strike action in certain ‘key’ sectors. These are health, education for those under 17, fire, public transport, border security (and decommissioning of nuclear stations). Here the trade unionwill not only have to show that 50% of those eligible to vote did actually vote, BUT also that 40% of those eligible to vote did actually vote in favour. In my example above, here the trade union will have to show that at least 300 members voted AND that of them, at least 240 voted in favour.

The government’s argument for both changes, which do interfere with human rights around freedom of association, are that to have these minimum figures means that any legal strike action will have democratic support and legitimacy. Either way, there is no doubt that trade unions will have to work harder to ensure that as many members vote in future industrial action ballots and they will  surely be hoping that the government’s current consultation on the use of ‘e-balloting’, will make it much easier to engage a social media friendly workforce rather than the current old-fashioned postal vote system.

Fresh ballot required after 6 months

3. It will be harder for a trade union to hold the threat of strike action over an employer. Previously, provided that industrial action was started within four weeks of the ballot (or a longer period agreed by the union and employer which did not exceed eight weeks) there was nothing to prevent a union from suspending and restarting action in reliance on the original ballot, provided that it was the same industrial action.There was no fixed end point by which action ceased to be supported by the original ballot. The government has put an end to this and provided that the maximum amount of time during which a ballot stays ‘valid’, will now be 6 months. Once that has passed, if there is a still a dispute between the employer and employees, the trade union will have to ballot again (which as you can imagine is a time-consuming process and the employees might not be so willing to support further strike action six months down the line).

Tighter requirements for balloting and striking

4. The Trade Union Act 2016 contains further provisions concerning the identification of picket leaders during strike action, stricter information requirements for the ballot paper, and alterations to the checking off system for the collection of trade union dues.

But what about the use of agency workers?

In addition…the government promised that it would abolish what it described as the ‘nonsensical restriction’ law that currently says an employer is not allowed to use agency workers to replace staff who are on strike. As you can imagine, this does severely hamper what service an employer can provide if they are subject to strike action and does give more power to the trade union as it makes the strike that bit more effective. The government is still consulting on this point. The Trades Union Congress claims that this has been quietly kicked into the long grass. I am not so sure – so watch this space.

 

Get the most from your trade union relationships

Come and hear from the experts

Specialist trade union training event –  8 June, Leigh Court, Bristol

We think that that any business who works with a trade union can benefit from a positive working relationship and that the best way to do this is to fully understand the law that relates to trade unions, its effects and limitations. Our specialist team of trade union experts here at Menzies Law regularly advise organisations on trade union issues. We’re here to help give you the benefit of our experience. If you fancy a chat over a coffee please contact Luke Menzies (call 0117 325 0921 or ).

With this in mind, Menzies Law will be launching an invitation-only event, to take place on 8 June, for senior HR professionals, at which we will explore these areas in detail.  To register your interest in receiving an invitation to our exclusive event, please email Vikki Smith on .

 

Anne-Marie Boyle
Senior Solicitor

Blog: How to protect your difficult conversations – part 3

As you can tell, I do love a list.

Step by step guide to planning your difficult conversations

  1. First, you need to know what you are dealing with. Why do you want to speak with this employee? Is it because, for example:
    1. They have already brought a grievance/several grievances in the workplace?
    2. They have been making life difficult for colleagues in the workplace?
    3. You have performance concerns?
    4. You need to change something about their job/role function?

    (As they say, this is not an exhaustive list.)

  1. If you feel confident that you already have a ‘dispute’ between the business and the employee, then the ‘without prejudice route’ is probably best for you. This protects the actual contents of any discussion from disclosure, irrespective of any employment law claim the employee might bring. Remember also that you have to be trying to resolve the dispute.  If you are not sure that there is an actual dispute, give us a call and we’d be happy to talk it through. Obviously be sure to avoid any ‘unambiguous impropriety’ (see my Part 2 blog on this subject). When engaging with the employee it is best to start any conversation with ‘can we speak without prejudice?’ and make sure to follow up any conversation in writing with the words ‘without prejudice’ at the top. You may like to ask them to sign something which confirms they are happy to have a ‘without prejudice’ conversation.
  1. If you are more in the territory of 1(b) to (d) above, then you may want to consider the ‘pre-termination negotiations’ route as you are probably not in ‘dispute’ territory. I would probably sprinkle a bit of ‘without prejudice’ in there for good measure, though: remember there is no reason why you can’t use both regimes at the same time.
  1. Arrange to meet the employee. For most examples this should be planned with the employee knowing in advance that they are required to attend a meeting, albeit you don’t have to tell them in advance what the purpose of the meeting is. Consider offering the employee the right to be accompanied (see Part 2).
  1. At the meeting, explain your concerns and the employment processes that might need to be followed to address them (e.g. disciplinary, poor performance). Explain that, as an alternative, you would like to propose a settlement and exit package. I would always add here that you expect this conversation to remain confidential and inadmissible if the matter ever came to an Employment Tribunal. Also, I would always say that the conversation and whether it results in an agreed settlement negotiation will have not impact on any possible future disciplinary or performance management proceedings.
  1. Follow up the meeting by sending the employee the offered settlement terms. This can be in the form of a draft settlement agreement straight away or a more simple ‘heads of terms’ letter or email which simply summarises the key elements of the deal. My usual advice is to send a draft settlement agreement at this stage, as it sets your stall out clearly on issues that are always going to be much more important to the employer, such as termination date, confidentiality, return of company property and restrictive covenants: a letter often omits these and simply concentrates on the actual sums involved. I usually advise employers not to hand over a draft settlement agreement at the meeting. I concede that there will be a personal preference here – but I think it is more the impression it gives. I think it looks much better to say ‘Ok, well if that is something you are interested in, I can have a look at it and  come up with a draft’, rather than ‘here’s something I prepared earlier’.
  1. In the vast majority of cases, matters will swiftly proceed to an agreed exit. But do always be prepared with a Plan B. If you can’t reach an agreement on the terms of the settlement agreement, then consider what you will do next. Are you prepared to proceed with the disciplinary/poor performance process?  If not, you might need to look at the figures you are offering again.

I advise on difficult conversations every day of the week. So if you would like to chat one you are planning through, please give me a call.

Anne-Marie Boyle

Blog: How to protect your difficult conversations – part 2

In my recent blog How to protect your difficult conversations with employees Part 1, I looked at the ‘without prejudice’ rule and the newer statutory ‘pre-termination negotiations’ rule, their similarities and their key differences.

In this part 2 of my blog I am going to look at how you can use either or both regimes when planning your difficult conversations with employees and how to ensure that your ‘off the record’ conversations stay that way.

Let’s have a look at that first.

‘The Level Playing Field’ – how to avoid your private conversations becoming public

‘Without prejudice’ conversations will not stay that way if there is evidence of ‘unambiguous impropriety’ taking place during them. Likewise, pre-termination negotiations will not stay that way if there is ‘improper behaviour’. I can assure you that if you avoid using ‘improper behaviour, you will always avoid ‘unambiguous impropriety’.

Put simply, if you use any dodgy tactics to persuade your employee to take a settlement offer, you are risking the entire contents of any ‘off the record’ conversation you had with that employee becoming public knowledge in an Employment Tribunal claim. In order to help you steer a clear path, here is my list of do’s and don’t’s to remember when embarking on a difficult conversation with an employee:

Do’s

  1. It may sound obvious – but make sure you have an offer to make!  In the case of Crespigny v Information Security Forum Ltd 2014, an Employment Tribunal found evidence from a ‘pre-termination’ meeting would be admissible in an Employment Tribunal hearing because the employer had acted improperly in not making any offer to the employee. The evidence was that the employee had been told ‘have you thought about resigning?’ When he replied ‘no’, he was simply told that he would have no job by the following Monday (a couple of working days later) and that the company wanted to end his employment in a constructive way.
  2. Do set out, in neutral terms, what the ‘options’ are for the employee. It is perfectly acceptable to set out factually what the alternatives are for the employee if a settlement cannot be reached – including the possibility that disciplinary or poor performance proceedings may be commenced (or continued). The ‘no no’ here is to say that the employee will be dismissed if they don’t take the deal. It is, however, acceptable to say that the deal will not stay on the table forever and that, if it is withdrawn, it will not be re-offered and then a formal process will have to (re)start.
  3. Do allow your employee some time to consider any offer made. Once you have got to the point of wanting to make an offer to an employee, it is natural that you will want to just ‘get on with it’. However, remember that this might be a bolt out of the blue for your employee and they might need a little time to consider their options. ACAS advises giving an employee 10 working days to consider an offer.. This is not a strict legal requirement and feels a very long time. In our experience, employees tend to engage in the process much more quickly than that.  Again in Crespigny v Information Security Forum Ltd 2014 the ET found that giving the employee just a couple of working days to consider his ‘options’, was too short a timescale.
    If you want to keep the employee focused then I would always suggested giving 5 working days for the employee to come back with their views on any offer made. Be prepared to be flexible – if they come back and say they are interested, but need to organise some legal advice, it is worth considering extending any deadline you have given. Also the more recent EAT case of Lenlyn UK Ltd v Kular decided that a short time limit and the reason given for it were both ‘unacceptable’ and had undoubtedly put pressure on the employee.
  4. Be open about what type of conversation you are having. Remember to tell your employee that you are using the pre-termination negotiations route (or that the conversation is ‘without prejudice’ – if you are relying on that rule), and that the settlement discussions are expected to be inadmissible in tribunal proceedings and they will have no bearing on any subsequent performance management or disciplinary procedures if settlement discussions break down.
  5. Consider allowing your employee to be accompanied at any meeting to discuss an exit. ACAS recommends this, but again it isn’t a strict legal requirement. It is one to weigh up. If the employee will find the conversation very difficult and could usefully use the support, then it is worth making the offer. Also, bear in mind, who is having the conversation on behalf of the company? If it is a ‘shoot from the hip’ style (i.e. loose cannon) manager and you are really not sure they can be trusted to keep the conversation ‘on point’, then that might be another reason want to offer the option to be accompanied (or, at least for you to be in attendance).

 

Don’t’s

  1. Don’t use any form of harassment, bullying or intimidation during your conversation.  This includes things I have mentioned above, from not giving enough time to consider an offer or stating that the employee will be dismissed if they don’t take the offer, right through to threats of physical violence or other intimidating behaviour. (I very much doubt you would threaten to punch them, of course, but you never know…)
  2. Don’t mislead your employee during any conversation. In the EAT case of Lenlyn UK Ltd v Kular, the EAT criticised the employer  for “substantially misrepresenting”  an  accountant’s finding in a report on the employee. The company told the employee that the accountant had found his work to grossly negligent. In fact, the accountant had stated that there would need to be an investigation, not that she had found that the employee had been grossly negligent.
  3. Don’t say anything in a protected conversation that you would not be prepared to give evidence on at an Employment Tribunal. This is particularly so when using the ‘pre termination negotiations’ route as, ultimately, it only covers claims for ordinary unfair dismissal and therefore if your ex-employee goes on to bring a different type of employment law claim they could seek to rely on the fact that your conversation took place and its contents.
  4. Don’t be surprised if your employee is the one who starts the conversation – they get the same protection too and you cannot use the fact that they have approached you to have a protected conversation as a way of intimidating or victimising them in the future if settlement discussions don’t go anywhere.

So, now you know the rules.  Next, you need to plan your conversation.  That will be the subject of my next blog.

I advise on difficult conversations every day of the week. So if you would like to chat one you are planning through, please give me a call.

Anne-Marie Boyle

Blog: Protecting your ‘difficult conversations’ with employees – Part 1

Invariably, where you have a senior employee who you need to exit, sitting down and talking to them about the benefits of agreeing to leave under an exit deal is the best way to go about it.

Nowadays the law provides us with two different protections to avoid such conversations being thrown back in your face at a later date, if the deal does not materialise and you are then sued by the employee in question.  Both types of protection have some odd aspects and do not always both apply to the same situation, so it’s worth reviewing what they are and how they work.  They are crucial tools for any HR practitioner.

In this two-part blog, I’m going to look at the various legal issues involved when you need to have a difficult conversation with an employee, including:

  • the pro’s and cons of the ‘without prejudice’ and ‘pre-termination negotiations’’ routes
  • how you gain protection from your discussions being referred to in court
  • how you can lose protection
  • how you can plan your difficult conversations to get the best outcomes.

The ‘without prejudice’ conversation

It is easy to think you know all there is to know about having a ‘without prejudice’ conversation with an employee. It is a tried and tested formula: calling an employee into a meeting, explaining that you want to speak ‘without prejudice’ and making some sort of offer (usually for their agreeing to leave). If they don’t take up the offer, they can’t then refer to the fact that you tried to move them on if they then bring legal proceedings.  The ‘without prejudice’ regime is part of the common law, which basically means it isn’t written down in any legislation and has been around for ever.

The problem, however, has always been that peppering a conversation, letter or email with the words ‘without prejudice’ does not actually give the protection that many people think it does. In order for the ‘without prejudice’ rule to apply, there must actually be a dispute between the parties and also the ‘without prejudice’ discussion must be a negotiation that is attempting to settle that dispute.  Furthermore, the cloak of without prejudice cannot be used to conceal ‘unambiguous impropriety’ (posh legal speak for not using it as an excuse to act in a dodgy way by victimising, threatening, bullying or being discriminatory towards the other person).

There must be a ‘dispute’

If you think about it, how many ‘off the record’ conversations have you had where there has been an actual dispute existing at the time? I don’t mean where the employee has made life a bit difficult, or you have decided that the employee is just not performing well enough. These wouldn’t actually count as a ‘dispute’ and any attempted ‘without prejudice’ communications in this situation would not protected and could be used by the employee in quite a prejudicial way (pun entirely intended) if negotiations were to break down.

What then is a ‘dispute’? Actually, it is not that easy to be sure. At one end of the spectrum, a tub-thumping letter from a solicitor instructed by the employee, setting out clearly the legal claims they have against their employer and what they will do about them if a settlement cannot be reached is clearly going to amount to a dispute.  At the other end of the spectrum, what about the employee who has queried why they are not getting holiday pay calculated using their guaranteed overtime payments. This would not be classed as a dispute – yet.

And what about this scenario?  An employee raises a grievance about her return from maternity leave. She is invited to attend a meeting at which the employer says “can we talk without prejudice?”, before telling her that her job was no longer viable and suggesting that it would be best for both parties if she agreed to leave in return for a settlement package. The employee refuses  the offer and sues for discrimination. She wants to use this highly prejudicial conversation in her Employment Tribunal case.  Can she?  You would think that the grievance itself would be enough for there to be a dispute between the parties: not so, said the EAT. It found that the employer may have upheld the grievance or dismissed it for reasons acceptable to the employee, meaning that the parties may never have actually been “in dispute” at all. The employee was therefore able to introduce full details of this awkward meeting into her ET claim. You can bet that case got settled quickly after that. Don’t get me wrong, ‘without prejudice’ communications have a big role to play in many types of employment disputes – it’s just that the rule has to be understood and followed properly.

I’ll look at this in more detail in my next blog.

The statutory regime – pre-termination negotiations

But what about those situations where you might want to just ‘test the water’ with a particular employee?  A typical scenario is where an employee’s performance is sporadic: they might respond to subtle warnings, but then performance dips off again. Or the person who is just a nightmare to manage but is very difficult to pin any suitable disciplinary on?  Both these employees might actually want to leave employment but are highly unlikely to approach their employer for fear of what might happen. No doubt you can think of other examples too.

This is where the statutory pre-termination negotiations (or ‘protected conversations’), which was introduced in 2013, comes into its own.

First, here’s the science bit: section 111A of the Employment Rights Act 1996 states that evidence of pre-termination negotiations is inadmissible in any proceedings for ordinary unfair dismissal. ‘Pre-termination negotiations’ are defined as ‘any offer made or discussions held, before the termination of the employment, with a view to it being terminated on terms agreed between the employer and employee’.  Crucially, there is no need for there to be an actual dispute between the parties when using this process.

This statutory regime runs alongside the common law ‘without prejudice’ rule and employers are entitled to use both regimes simultaneously, or pick which suits their purposes better.

We have also seen the first EAT decision on this area, which gives some really helpful clarification. In the recent EAT case  (Faithorn, Farrell Timms LLP v Bailey), it was held that the protection given to settlement negotiations under s.111A covers not only any offers or discussion made, but also extends to any evidence that negotiations have even taken place. This, I think, will give employers more confidence in using this regime – safe in the knowledge that the ET will not be influenced by knowing that the employer was perhaps trying to move the employee on.

It is important to note here that this is better protection than  the ‘without prejudice’ rule, where it is still possible to refer to the fact that negotiations have taken place even if the content of those negotiations cannot be disclosed.

Again – don’t get me wrong – the statutory pre-termination regime has its flaws too. It only offers protection where an employee goes on to bring an ‘ordinary ‘ unfair dismissal claim. As you know, there are an awful lot more employment law claims than just unfair dismissal, including discrimination and whistleblowing. Also, it will not provide protection where there has been ‘improper behaviour’ (probably easier to understand that ‘unambiguous impropriety’ – but still not defined beyond that, so we are all left doing some guesswork).

In my next blog I will set out what I think could or should not amount to improper behaviour. I will also guide you through how to plan your difficult conversations.

If you can’t wait until then and you need to have a difficult conversation with an employee now, – give me a call and I’d be delighted to have a chat.

Blog: Stretching reasonable adjustments too far?

The duty on an employer to make reasonable adjustments for a disabled employee is a familiar one to HR advisors.  But it is an area of discrimination law where the boundaries get stretched further and further, year after year. In recent years we have seen Employment Tribunals take the view that certain steps are required as reasonable adjustments that we would never have thought came within that scope when the Disability Discrimination Act 1995 (DDA) was in its infancy.

A recently reported case against G4S, relating to whether pay protection was a reasonable adjustment for one of their disabled employees, got me thinking about how far things have gone.

Reasonable adjustments

At the time of its introduction into law under the DDA, the concept of reasonable adjustments for disabled employees was heralded as a ground-breaking way of requiring employers to re-think their workplaces so that their disabled employees could either return to work or remain in work. No other strand of discrimination law gives this type of protection. (As a reminder: an employer has a duty to make reasonable adjustments where it knows (or ought reasonably to know) that a person has a disability. And there is a provision, criterion or practice (PCP) which places the disabled person at a substantial disadvantage compared to those who are not disabled. Failure to make a reasonable adjustment amounts to discrimination.)

The concept

At this time, many employers were concerned about the cost of these adjustments. But were perhaps reassured by Government pronouncements that the majority of adjustments would either involve  little or no cost or that, if  there was a cost attached, they may well still be ‘cost effective’ as opposed to recruiting and training a new member of staff. There is a consistent theme from reported cases looking at what amounts to a reasonable adjustment. This is that an adjustment will only be reasonable if its effect is either to keep the disabled employee in work or enable them to return to work.

A long list

Over the last 20 years, we have seen the concept of what a reasonable adjustment is tried, tested and stretched to consider endless kinds of adjustment that could be made. As a result of case law over these two decades, we know that they can include:

  • Making adjustments to premises.
  • Allocating some of a disabled person’s duties to another person.
  • Transferring a disabled person to fill an existing vacancy.
  • Altering a disabled person’s hours of working or training.
  • Assigning a disabled person to a different place of work or training.
  • Allowing a disabled person to be absent for rehabilitation, assessment or treatment.
  • Giving, or arranging for, training or mentoring.
  • Acquiring or modifying equipment.
  • Modifying procedures for testing or assessment.
  • Allowing a disabled employee to take a period of disability leave.
  • Modifying disciplinary or grievance procedures.
  • Adjusting redundancy selection criteria.
  • Modifying performance-related pay arrangements.

(This is not an exhaustive list, as they say.)

How much is cost a factor?

There are several factors to take into account when deciding whether an adjustment is reasonable. But, as might be imagined, many cases have centred on the issue of the cost of the adjustment. We know, from Employment Appeal Tribunal (EAT) guidance, that cost is “one of the central considerations in the assessment of reasonableness”. This was said in a case where the EAT rejected an argument that it should have been reasonable for the Foreign and Commonwealth Office to pay £250,000 a year to provide lip-reading services to a senior official who was profoundly deaf working in Central Asia.

What about pay protection?

One area that has seen surprisingly little by was of case law action is the concept of ‘pay protection’ for disabled employees. In O’Hanlon v Commissioners of HM Revenue & Customs, the EAT held that an employer would only very rarely be obliged, as a reasonable adjustment, to give more sick pay to a disabled person than it would otherwise give to a non-disabled person on sick leave. The EAT commented that the purpose of the disability discrimination legislation was to enable disabled persons to play a full part in the world of work, not to “treat them as objects of charity”.

We now have a very recent relevant Employment Tribunal case. which looked at the extent to which an employer may be required to maintain a disabled employee’s existing salary level when transferring them to a new role, as a reasonable adjustment. In this new case, Mr Powell worked for G4S Cash Solutions (UK) Ltd as a maintenance engineer, maintaining the company’s ATM machines. He suffered with back pain. Eventually he was no longer fit for jobs involving heavy lifting or in confined spaces. It was accepted that he was disabled within the meaning of disability discrimination law.

Around this time, G4S created a new role of “key runner” supporting ATM engineers working in Central London. The role involved driving from their depot to various locations to deliver materials to engineers. This enabled the engineers to travel by public transport. After a period of sickness absence, Mr Powell began to work as a key runner. But during that time he retained his existing salary as an engineer. He thought this change of role to be long-term. After about a year, G4S was considering discontinuing the key runner role for organisational reasons. G4S then decided to make the key runner role permanent. However, it was at a lower rate of pay to reflect the fact that it did not require engineering skills. Mr Powell was unwilling to accept the 10% pay reduction that this would entail and was dismissed.

EAT finds that long-term pay protection could amount to a reasonable adjustment

The EAT had no trouble in deciding that that while it will not be an “everyday event” for an employer to provide long-term pay protection in this situation, there would be cases where it could be a reasonable adjustment as part of a package to get an employee back to work or to keep an employee in work.

Reading between the lines, the ET (and the EAT) didn’t have much time for the employer here. It was certainly frowned upon that G4S hadn’t really kept Mr Powell in the picture. He was unaware whether his new role as a key runner was temporary or permanent. G4S argued that if  it continued to pay Mr Powell at the engineer’s rate when he was not actually doing their job then there would be “discontent from other employees”.  That argument was dismissed in short shrift. There may well have been some gripes from other engineers in the pub on Friday. But no evidence was actually produced of employee ‘discontent’.

I do have some sympathy with G4S here. They created and maintained a new role that Mr Powell was able to do in the long-term with his disability. They didn’t seem to get any credit for that from the ET. Surely that was the adjustment which enabled Mr Powell to continue working – as is the key test for a reasonable adjustment? Did the 10% salary difference between the engineer’s role and the key run role really make the difference between Mr Powell being able to work and not being able to work? There seems to have been no discussion about this.

This case is not saying that pay protection must be considered in all cases. Nor is it saying that it must be maintained permanently. But as a possible adjustment it cannot be ignored. The EAT noted that, in changed circumstances, an adjustment may eventually cease to be reasonable. For example if the need for a job were to disappear or the economic circumstances of the business changed.

This case didn’t look at the issue of part-time working. However it doesn’t seem much of a stretch to apply the same pay protection principles to a case where a disabled employee is unable to fulfil their full-time role anymore but could do it part-time.  Would it be a reasonable adjustment to continue paying at full rate? I think if you had asked most employment lawyers before the Powell case they would have said ‘definitely not’; now, I am not so sure.

So pay protection looks like being here to stay as one that employers will need to consider in appropriate cases.  Like several other decisions on reasonable adjustments, it doesn’t appear to fit the original concept of a reasonable adjustment being something that keeps an employee in the workplace. However this is in the same direction of travel that we have seen for many years now with this particular aspect of disability rights.

Blog: Rocking the ‘gig’ economy – is the world of work evolving or regressing?

Rather like Brexit (a word you never thought you would use so often), the gig economy will be one of those phrases you will start to hear over and over again. It comes from the US (natch!) and describes the arrangements whereby independent contractors take on a series of short-term projects to suit their financial and lifestyle commitments – hence moving from ‘gig’ to ‘gig’. It is a spectrum away from the solid ‘9-5 with benefits’ jobs that the majority of us work. However, it is estimated that by 2020 around 40% of the US population will be working as independent contractors.

For some, the gig economy will be the golden ticket. Freedom to chose  the ‘when’, ‘where’, ‘how’ and ‘what’ and the digital age have both certainly helped with that. There are many platforms now where buyers can access a ready supply of contractors. You can easily see the advantages for both sides: the buyer only purchases exactly the services they want, avoiding the expense of actually employing someone; and the supplier gets to find the ‘gig’ that suits them at that particular time. The likes of Uber are held up as the epitome of how the gig economy works best.

Down side

But we all know that a purely rock and roll lifestyle can turn a bit sour too. The fact is most independent contractors are not groovy hipsters, sitting at coffee bars, logging on and picking up the next project to work on every few days.  Rather, it is more often workers in the more deprived parts of society, who for one reason or another can’t actually get the secure 9-5 job they want, but instead find themselves on a  ‘zero hours’ contracts, not feeling very flexible and free at all.

In fact, the classic ‘zero hours’ contract that you see in the likes of Sports Direct is certainly getting attention for all the wrong reasons at the moment with stories are emerging of very poor working conditions.  A recent House of Commons Business Committee, commenting on Sports Direct, reported that  “The evidence we heard points to a business whose working practices are closer to that of a Victorian workhouse than that of a modern, reputable High Street retailer.”

Under scrutiny

The Government has promised that the forthcoming Gangmasters and Labour Abuse Authority (GLAA) will have a much broader remit and stronger powers than exist at present to tackle labour exploitation across the economy, introducing the capacity to search and seize evidence and investigate modern slavery where it relates to labour abuse and other offences.

And if all that isn’t enough, the Citizens Advice Bureaux reported only last month that women who are returning from maternity leave are much more likely to be offered ‘zero hours’ contracts instead of their permanent contracts (with Sports Direct being again named as a key offender in this area): the suggestion from the CAB being that these are inferior arrangements to those previously enjoyed by the female employees.

It is not just Sports Direct who are getting a bashing: various courier companies, such as Hermes, are having their working practices questioned.  Again, they use a pool of self-employed couriers to undertake daily delivery rounds. Stories are emerging here of drivers working very long days but still not being paid the national minimum wage.

The GMB union is currently supporting an Employment Tribunal case that is seeking to secure ‘worker’ status for exactly these types of ‘self-employed’ workers.  (There is that odd category of ‘worker’ in UK employment law who is not an employee but is entitled to the important rights of the national minimum wage and paid holiday.) Even the BBC has recently been criticised for their use of potentially exploitative contracts for junior members of staff working very long hours on productions but without the benefits of receiving overtime or ‘out of hours’ allowances.

There are many different types of working models, and the workplace has to evolve too. Companies offering flexible working practices such as home-working, term-time working, compressed working day, duvets days and flex-benefits are consistently rated highly by employees in ‘Good Employer’ surveys. So perhaps we don’t want to feel too ‘9-5’ any more, but we still want the basic employment protections that have become a main-stay of the employment world over the last 50 years.

We can’t have it all, I guess, but it would be a shame if what we get is an erosion of basic employment rights dressed up as ‘the modern workplace’.

Blog: Trans-forming the workplace

Since 2014 it has been possible to select one of 71 (yes, 71) gender options when setting up your Facebook page (including ‘gender neutral’, ‘non-binary’, and ‘pan-gender’). Last week it was announced that at least 80 state schools across the UK, including 40 primaries, have adopted gender-neutral uniform policies, offering transgender equality by allowing girls to wear trousers and boys to wear skirts.  Some schools have gone even further and taken out all reference to gender in their policies and essentially allowing pupils to choose the uniform they feel most comfortable wearing. In the US, the Obama administration has now ordered all schools to allow children to use the toilet which they felt best corresponds with their gender identity.

I am confident that, where schools go, workplaces will surely follow.

As with many other areas of equality (sexism, racism, etc.), there has always been ‘trans-genderism’ within society.  Its incidences have not increased, it’s just much more awareness now.  The advent of specific employment protection legislation in 1999, for what was then called ‘gender reassignment’, has certainly helped in part.  (Protection against all forms of discrimination relating to ‘gender reassignment’ is nowadays enshrined in the Equality Act 2010.)  Campaigning and advice groups have also become more active and the rise of social media will undoubtedly have helped to reach people who would have struggled to get information in the past. These support organisations report huge increases in queries on ‘trans’ issues, with now female to male enquiries outnumbering male to female.

Even so, a trans employee within a business is still an area where few businesses have much experience. Only a relatively small percentage of the population identify as trans (I understand the current best guess is that it is significantly less than 1% of the UK population).

In January 2016, the Women and Equalities Commons Select Committee published its first report on transgender equality. The report made over 30 recommendations in a wide range of policy areas. It called on the Government to take action to ensure full equality for trans people and emphasised the need to update legislation, provide better services and improve confidence in the criminal justice system (where there have been some recent high profile suicides from trans male-to-female prisoners who were placed in the all-male prisons). It will be interesting to see how the Government responds to this.

Useful guidance

In addition, the Government has recently produced guidance for business who wish to make their organisations ‘trans-friendly’ (The recruitment and retention of transgender staff – a guide for employers’ Link). This guidance looks at the entire lifecycle of the employment relationship from recruitment through to termination. It helpfully points out that employers who actively promote a culture of dignity and respect are more likely not only to successfully recruit and retain trans staff but also other high quality employees who are looking to work with companies who can offer a more inclusive experience.

The Government’s guidance is also useful in giving information as to the different stages of transition: from someone who is still thinking about transitioning, those who are in the process of living as the other gender (with or without medical intervention), to those who have fully transitioned and have possibly even changed their gender of their birth certificates. Accordingly, it covers recruitment processes, induction, terms and conditions, policies, and handling more difficult issues such as confidentiality and harassment. The prevailing message is that it is useful to ensure that you have someone in your organisation who has some knowledge of trans issues.

In the workplace

In our experience, more requests for legal advice arise from businesses when an existing employee informs them that they are beginning the process of transitioning than where the employee presents as trans from day one. Questions that come up very quickly are things like what do we do about uniforms/dress code  and how do we manage the use of toilet/changing facilities? With some open communication with your trans employee and a heavy dose of sensitivity and common sense (in equal measures!), these can be resolved relatively quickly, we find.

However, trans issues are definitely not limited to just sorting out the toilets and dress codes. There will be issues such as when and how to communicate with staff and client and there may be requests for short-term absence for medical interventions. Unfortunately, you might have to deal with incidents of transphobia. Remember, for those trans employees who went through their transition a while ago, they will just want to move on and treat their old gender as history.

Occasionally we find that discrimination arises out of seemingly good intentions. If your organisation decides not to recruit a trans employee because you fear that your ‘unreconstructed work-force’ will bully that person and you wish to save them from that, this will amount to direct discrimination, irrespective of your motives.

For some business, making themselves trans-friendly will be down their list of priorities. However, for those organisations who might not be able to shout about how high their salaries are or their whizzy in-house gym, presenting your credentials as an inclusive employer can help you stand out from the crowd when it comes to attracting the right talent for your business.

I’m keen to help if you have any need for expert guidance here.

Anne-Marie Boyle
Senior Solicitor

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