Highly Relevant to those who lead or work within Schools
This case is a timely reminder to all who work within Schools, and any other organisations that work with vulnerable groups, that full disclosure of any relationship with a person who may present a risk to vulnerable individuals must be made to the employer.
The Claimant was employed as head teacher of a primary school; it transpired that she had a link with a man who had been convicted of an offence involving indecent images of children.
Whilst Ms Reilly did not have a romantic link with the person in question, Mr Selwood, she co-owned an investment property with him and had witnessed his arrest in 2009 on suspicion of having downloaded images of children. This was a month after she had applied for employment at the School.
Ms Reilly made no disclosure to her employer about the arrest or her relationship with Mr Selwood. At first she considered him innocent but as time went by it became less and less reasonable for her to maintain that belief. Eventually Mr Selwood was convicted and yet still Ms Reilly made no disclosure of this.
The governors of the School learnt of these matters in 2010 and suspended Ms Reilly; she was later dismissed for her failure to disclose the relationship. Ms Reilly never conceded fault in this respect, which was relied upon by her employer as an aggravating factor justifying summary dismissal for gross misconduct.
Ms Reilly won her unfair dismissal claim on procedural grounds (the appeal process was defective), but the Tribunal considered fair dismissal a 90% certainty had a proper appeal process been followed, and reduced compensation accordingly. This is known as a ‘Polkey’ reduction and it is applied in a great many cases, often producing a Pyrrhic victory for claimants.
Ms Reilly pursued a series of appeals, culminating in an appearance in the Supreme Court (i.e. the ultimate court of appeal for domestic law issues, and in due course following Brexit for all matters).
Those who follow Supreme Court decisions will know that – despite what some newspapers would have you believe – when it comes to the independence, sophistication and insight to be found in the Judges of our ultimate appeal court, we in the UK can – and should – be very proud. Needless to say the appeal was dismissed.
The Supreme Court upheld the Tribunal’s (and the EAT’s and the Court of Appeal’s) finding that the failure to disclose the relationship, and the ongoing refusal to accept culpability for this, fully justified dismissal despite Ms Reilly’s otherwise exemplary employment record and the fact that she had committed no blameworthy act herself (the sin being one of omission).
Please feel free to refer to this link and share it wherever appropriate. There are very good reasons for the requirements of disclosure in these circumstances and our children need the best protection we can give them from predatory individuals.
Is this the end of Tribunal Fees?
In a landmark decision early today (26th July ’17) the Supreme Court decided that the Employment Tribunal fee regime introduced in 2013 is unlawful.
This marks the end of Unison’s four year battle to overturn the regime introduced by the Conservative Government back in the days when it had a strong majority in the House of Commons.
The judgment is striking, not only because of its far reaching effects, but also in its conclusions:
- the fees regime was ‘ultra vires’ (i.e. beyond the Government’s legal power) because the 2013 Order effectively prevented access to rights contained in employment legislation
- it was also unlawful under European Law because it introduced unjustified limitations on workers’ rights under EU law
- the higher fees for ‘type B claims’ (which include discrimination) were indirectly discriminatory against women
It is hard to imagine a more comprehensive routing of the fee regime! Furthermore, the decision means fees already paid (reported to be as much as £27 million) will have to be re-paid to claimants.
This decision has immediate effect, so huge efforts are going to be required to amend the applicable rules, systems and guidance. There are also serious questions about whether claims that were discouraged by the regime can now be taken.
Employment Tribunal claims were once the bane of employers’ lives, but after the introduction of fees the numbers of claims fell off a cliff with a reduction of 70%. It is of course too early to predict what will happen to claims in the future, but all indicators are that employers will face significantly more claims.
Quite what the Government’s response will be remains to be seen; they may introduce a new fee regime with significantly lower fees, or simply revert to free access.
How bad will this be for employers?
In our view it should not be a problem for employers who understand employment rights and operate policies and practices that underpin fair and equal treatment. However, it is bound to cause disruption, pain and cost for those who don’t understand or follow employment laws.
Inflation kicks unfair dismissal awards upwards
Inflation affects everything of course, so why shouldn’t awards for unfair dismissal go up also? And indeed they do, in April of each year the new maximum awards are set for basic awards, statutory redundancy payments, and compensatory awards.
So on 6th April 2017 the ‘free money’ element (basic award / redundancy) becomes £14,670.00 (for an employee with 20 years’ service) and the maximum compensation element goes up to £80,541.00.
So the worst case scenario for falling foul of the unfair dismissal legislation will be awards totalling just over £95,000.00 plus legal costs, management time and damage to reputation.
Which leads me nicely on to the next noteworthy development in this area: earlier this month the Ministry of Justice launched its website of employment tribunal decisions.
Already hundreds of judgments have been published. Keen to see what was going on in the world of tribunal misery I subscribed to the free update service and my email inbox has not been the same since!
This is all – quite obviously – bad for employers who get things wrong or pay little regard to employee rights. Good for Employment Law and HR consultants? Well perhaps so.
Diabetes is a hot potato issue these days; here’s what you need to know
There are an estimated 4.5 million people in the UK today with diabetes; this includes around 1 million people who have type 2 diabetes but don’t know yet because they have not been diagnosed!
Type 2 diabetes is the most common type: it accounts for around 90% of diabetes sufferers and is a long term metabolic disorder. The symptoms often appear slowly over a long period of time. If managed correctly with diet, weight control and exercise it is often possible to stave off type 2 diabetes indefinitely. I know people who have done this; they can often be seen wandering the isles in supermarkets checking the glycemic index on breakfast cereal packets.
Poor diet choices and a high stress / low exercise lifestyle are believed to be behind a significant increase in diabetes over the last 30 years. ‘Significant’ is an understatement unfortunately: the increase in diabetes worldwide has been more than ten fold since 1985.
So on average more than 1 in 10 of those employed in the UK has diabetes (diagnosed or undiagnosed) and all expectations are that this will continue to increase.
So what do UK employers need to be aware of?
From an employment law perspective the obvious issues relate to the Equality Act 2010 and whether or not 1/10th of our workforce is disabled.
As a general rule of thumb employers cannot lawfully treat employees less favourably because of something connected with a disability. Like for example: their attendance, or their work performance.
Then there is the employers’ duty to make reasonable adjustments to counter-act disadvantages caused by a disability (e.g. time off work to attend appointments, breaks for insulin injections, etc).
But here is the thing: usually a disability will involve a substantial effect to the employee’s ability to do normal day to day activities, so employers are more likely to be aware that there is an issue and that they need to consider ‘disability’ type issues.
However, a recent court decision highlights that diabetes, as a progressive condition, can qualify as a disability even if it does not yet have a substantial effect (as long as this is likely to be so in the future).
To further complicate matters, measures that reduce or avoid a substantial effect (i.e. medication or any other treatment) must be disregarded. The questions is: what would the effect be without the treatment? So even a crystal ball won’t always help employers know if they have these duties.
All of this means employers need to be much more vigilant when dealing with employees who have disclosed that they have diabetes, or who are displaying the common symptoms. Being overweight is not itself a disability: but it is increasingly going to be a strong indicator that diabetes is a high risk.
If someone has diabetes (or you have reason to believe they may have it), the safest route will be to assume they have a disability and treat them accordingly.
This means investigating the nature and effect of any condition (think: occupational health referral plus an ongoing dialogue with the employee in question) and being proactive about making adjustments.
Indirect Discrimination and Shared Parental Leave (SPL)
Network Rail has recently slashed its maternity pay to female employees, why? The reason is that if an employer pays female employees enhanced maternity pay, but does not pay male employees enhanced pay when they take SPL, this practice is likely to be indirectly discriminatory.
In fact Network Rail has just been ordered to pay £28k compensation to one male employee for this very reason.
It’s one of a handful of anomalies that result from the introduction of SPL and that particularly affect schools who have burgundy book and green book incorporated terms.
I spotted this in 2014 when the SPL Regs were introduced and consulted with clients and the unions to canvass opinion. Only NASUWT responded substantively and they argued for the most beneficial outcome for female employees.
Respect to NASUWT for bothering to consider the issues we highlighted; SPL is headache inducing stuff and the SPL Regulations make the blueprints to the death star seem like instructions for a space hopper!
Problem 1 – indirect discrimination
There are three options, and – sorry about this – none of them are particularly attractive.
The expensive approach
Firstly, you can pay male employees enhanced pay when they are on SPL so there is no difference in treatment. Potentially this means allowing up to 18 weeks of enhanced pay to male employees and so could be very expensive (remember, under SPL female employees can share up to 37 weeks of their maternity pay).
The ballsy approach
Alternatively, you can amend your Family Friendly Policy to make it clear that no employees who are on SPL will be entitled to enhanced pay.
If you are going to do this you need to set out all substantial reasons for this as justification. This way, at least if you face a claim you will have a credible justification defence. It may not work, but you will have something to rely on. If this is your preferred approach you will need professional help when re-drafting your policy.
The Kaiser Chiefs* approach
Finally, you can withdraw female employee’s rights to enhanced pay. If these rights are contractual (e.g. collectively agreed and incorporated by the burgundy / green books) this will be almost impossible without provoking industrial action and risking constructive dismissal claims en masse.
Problem 2 – stop start rights to enhanced pay
The story doesn’t end here, enhanced pay during SPL gives rise to a further quandary:
If an employee opts to take SPL, does this mean that the right to enhanced pay can then be used on a ‘stop start’ basis like SPL rights? e.g. can the employee opt to be on SPL during term time with enhanced pay, and then ‘at work’ during school closure periods (receiving full pay)?
If so, enhanced maternity pay can be used in tandem with SPL to entitle each employee to an additional 10 weeks’ full pay during the 52 week SPL period. Ouch!
The cost to your organisation if this is correct is considerable and the possibility of ‘stop start’ rights to enhanced pay appear patently unreasonable.
The alternative is to create a rule that enhanced pay cannot be used on a stop start basis but must be used during the first 18 week period (i.e. the period in which female employees are entitled under the burgundy / green books to enhanced pay if they remain on maternity leave rather than taking SPL).
So, to avoid the ‘stop / start’ anomaly, all employees must only be allowed enhanced pay during the same limited period (under the burgundy / green books this will be the first 18 weeks only).
- Refuse to pay enhanced SPL to anyone and rely on your best justification arguments to limit the risk of indirect sex discrimination claims (and brace for impact), or
- Conflate your existing enhanced maternity pay rights with SPL to create a level playing field but avoid the cost of ‘stop / start’ rights to enhanced pay.
If you need help with SPL generally (or know someone who does) we can help.
For details of our SPL system follow this link.
* see the Kaiser Chiefs’ popular song “I predict a riot’
The Northern Ireland Court of Appeal has today decided an appeal in the litigation known as the ‘Gay Cake Case’.
A gay rights campaigner asked a christian baker to bake the cake pictured above. The baker refused and the campaigner claimed unlawful discrimination. Perhaps there were no other cake shops in town?
‘So how does that even work?’ you may ask. It goes like this: the campaigner is associated with the campaign to legalise gay marriage in Northern Ireland; the baker treated him less favourably because of that association and therefore on the grounds of gay/lesbian sexual orientation.
Most media attention has focused on the idea that the immovable object of religious belief was meeting the irresistible force of gay rights. Which would prevail in this modern incarnation of the ancient ‘spear / shield paradox’? ‘Roll up, roll up’, tickets for entry, edge of seat stuff. Even Patrick Stewart has commented. Please beam me up!
What they don’t tell you is this: associative discrimination is direct discrimination (i.e. less favourable treatment because of the protected characteristic itself, not something linked to it) and cannot be justified (by reference to religious belief, or anything for that matter).
So the baker was left to argue technical defence points, like freedom of speech (or if you think about, a kind of inverted freedom not to speak / write in icing).
Unsurprisingly it did not work; the Court of Appeal ruled against the baker and the sound of teeth biting down onto rosary beads was almost palpable.
The bottom line: ‘you cannot legally refuse a service to someone because of sexual orientation (either their own, or that of others who are associated with them)’. Most UK employers know this already: now the bakers of Northern Ireland do too.
Employees who want to whistle blow on their employers
It is not a subject most employers care to consider very much, after all, most employers intend to have their house in compliant, good order. Also one hopes that an employee who has a serious concern will bring it to their employer’s attention first, but this does not always happen.
The Government has recently updated the ‘Pay and Work Rights Complaints Form’, which is available on the gov.uk website. The idea is simple: got a complaint about the national minimum wage, an employment agency, or working hours? Then complain directly to the relevant government department. Wage offenders are ‘named and shamed’ on gov.uk and enforcement bodies are notified and the complaint investigated.
Essentially, the problem is taken out of the employer’s hands and the opportunity for low level resolution is lost.
But how do you encourage employees who have grievances and serious complaints to feel confident enough to raise them directly? The answer is simple but frequently overlooked:
You need to have Grievance and Whistleblowing Policies in place, these documents need to be easy to read and understand (i.e. not lengthy and complex), and your employees need to have been given, or have easy access to them.
It doesn’t need to be costly or difficult either; if you need your old policies updated and made user friendly, or you have nothing in place and recognise the benefits of getting this sorted then do as the Four Tops sang: ‘reach out‘ to us.
The U.K. voted with its heart to leave the EU
-but what will it mean for employers and employees?
After ‘informal discussions’ and a scramble by our leaders to piece together a plan for how Brexit will work in practice, the UK will give notice of intention to leave under Article 50 of the Lisbon Treaty.
Immediate reactions by the leading figures in the ‘leave’ camp were that we should not rush to give notice under Article 50. However, it is becoming very clear that the rest of Europe will use all levers to pressure formal process as soon as possible. Delay will mean harm to relations with the rest of Europe and our chances of negotiating an acceptable trade deal.
Article 50 then provides 2 years for a ‘withdrawal agreement’ to be reached. This can be extended but only by unanimous consent. Only when the withdrawal agreement is complete will the UK cease to be a member of the EU.
So for at least 2 years there will be no changes to UK Employment Law; the Directives and the European Court’s decisions will remain binding for us.
Quite what the withdrawal agreement will look like is anyone’s guess, but to avoid calamity for the UK economy it is almost certainly going to result in the UK either remaining in the European Economic Area (EEA) or putting trade deals in place that require significant compliance with the EU’s rules and regulations.
Put simply: our trade partners in Europe won’t allow us to eat our cake and have it! So the likelihood of deep and meaningful changes seem small.
And when it’s all finally sorted?
The majority of the UK’s employment laws either pre-existed our treaty obligations or ‘gold plated’ what the EU required, so don’t expect Brexit to have a massive impact on employment rights. The tide in recent years has been toward eroding employee rights that were deemed inconvenient for business and pundits suggest that changes may include:
- threshold for collective redundancy consultation reduced
- TUPE prohibition on post transfer harmonisation relaxed
- 48 hour maximum working hours removed
What happens will be in the hands of whoever constitutes our government after the withdrawal agreement: and there lies the really big question!
The Brexit vote cut across political party loyalties and quite how our existing bi-party system will re-shape to take account of the result, and whether the trend for deregulation will continue, remains to be seen.
The ride promises to be bumpy for the UK (and what will fall from the roof rack we cannot tell); we must trust that our nation’s spirit, determination and resourcefulness will see us to a prosperous future!
How will the Modern Slavery Act affect your organisation?
Commercial Organisations who supply goods or services and who have a group turnover of more than £36 million now have to publish a ‘modern slavery statement’. This will either say they have taken “no steps to eliminate modern slavery” (imagine the bad PR on that one!), or describe their business and supply chain and explain what they are doing to combat modern slavery.
You might say: ‘but surely this will only affect the biggest companies, so why should I care?’. The answer is that this will ‘trickle down’ to affect all businesses who are in the supply chain of the Commercial Organisations who are directly affected.
If you supply goods or services to other businesses, then watch this space and expect to be asked by your clients to confirm the steps you are taking to remove modern slavery from your business and your supply chain.
What should you do?
- adopt a policy on modern slavery
- identify parts of your business or supply chain that are at risk to modern slavery
- identify steps you will take to assess this risk
- decide what you will do to prevent modern slavery in your business or supply chain
- decide how you will measure the success of efforts to prevent modern slavery
- train relevant staff (e.g. those responsible for procurement)
I know what you are thinking: ‘surely to comply with these things we are now going to require all of our suppliers to do all of this!’. You’re right of course! This is how the ‘trickle down’ will happen.
Even if your supply chain is completely free from modern slavery, you will still be affected because the largest businesses in the UK have only two choices: they can admit they are doing nothing and suffer the bad PR, or they can pass the problem down the food chain.
If your business needs help with modern slavery statements, policies or training reach out to us.
What effect do settlement negotiations have on the ongoing employment relationship?
A recent case involving Leeds United Football Club highlights the importance of treating possible settlement discussions separately from the ongoing employment relationship. It’s a trap employers often dance dangerously close to.
In the Leeds United case the assistant manager declined a promotion and entered into settlement discussions about agreeing termination to his employment. Whilst this process was underway he was given alternative and less responsible duties and resigned in response.
The High Court found that the Claimant’s willingness to negotiate a termination package did not preclude him from claiming constructive dismissal.
This case re-enforces advice we often give to clients about settlement negotiations. Essentially, the parties should treat ‘without prejudice’ discussions about settlement as both invisible and entirely separate from the ongoing employment relationship.
The employer, in particular, should behave as if settlement negotiations were not taking place right up until the ink on the Settlement Agreement is dry!
So the answer to the question posed above is: ‘none!’