Everyone interconected

Employers dealing with the Coronavirus

A quick summary of things to think about as employers dealing with COVID-19 (coronavirus).

The government publishes daily updates at 2pm with the latest stats and advice.

Acas has also produced workplace specific guidance which sets out the steps employers should be taking.

If your industry has been affected by coronavirus and you have a downturn in work, you may also find this guidance on short time working and lay-offs useful.

How can we reduce the risk to our employees?
The risk level is currently identified as moderate. It would be wise as employers to send round an email/guidance encouraging employees to be extra-vigilant with washing their hands, using and disposing of tissues etc. If you have the capacity to do so, it may be worth designating an ‘isolation room’ where an employee who feels ill can go and sit away from the rest of the company and privately call ‘111’ before taking any further necessary action.

If an employee is not sick but is in quarantine or self-isolation, do we have to pay them sick pay?

There is no legal right to sick pay in these circumstances, but it would be good practice. Otherwise you run the risk of them coming into work and potentially spreading the virus to the rest of the workforce. There is also a risk of an argument by not paying someone who has self-isolated – you have breached the implied term of trust and confidence and could be found to have constructively dismissed them. But it is thought that such an argument is weak, for all sorts of reasons.

What if employees do not want to come to work?

Some people may be worried about catching coronavirus and therefore unwilling to come into work. If this is the case you should listen carefully to the concerns of your employees and if possible, offer flexible working arrangements such as homeworking. Employees can also request time off as holiday or unpaid leave but there is no obligation on employers to agree to this. If an employee refuses to attend work, you are entitled to take disciplinary action. However, the view is that dismissal is likely to be outside the range of reasonable responses, at least for now. If someone refuses to come into work and the COVID-19 issues continue into the medium term, this view might change.


The Good Work Plan

The main strands of the Good work plan are as follows:

Right to request a more predictable and stable contract

This new right will mean an employee can request a more predictable and stable contract after 26 weeks of employment.
Examples of what might be requested include a guaranteed minimum number of hours and certainty as to the days on which they will be asked to work.

This new development will predominantly benefit individuals who are employed as casuals or on zero-hour contracts. An employer will have three months to make their decision on any such request.
This is trying to phase out the use of zero hours contracts.

Break in continuous service

Presently, a gap of just one week can break an individual’s continuity of service. Therefore, despite regularly working on and off for the same employer over a long period of time, an individual may not build up any significant length of service.

This break period will be extended from one week to four weeks, helping those employees who work on a sporadic or casual basis to qualify for more employment rights (such as the right not to be unfairly dismissed or the right to statutory maternity pay), which require a particular length of service.

Protecting agency workers

After 12 weeks of service, an agency worker is entitled to receive the same level of pay as a permanent worker, unless the agency worker opts out of this right and instead elects to receive a guaranteed level of pay between their temporary assignments (often referred to as “the Swedish derogation”).

This opt-out will be removed (proposed to take effect in April 2020) because often agency workers are financially worse off taking the Swedish derogation route.

Tips and gratuities

Rules will be implemented to ensure that tips are passed directly to the individual, rather than taken by the employer.
Information and consultation arrangements
Information and consultation arrangements give employees the right to be involved in workplace discussions about an agreed list of topics, such as redundancy proposals.

Currently, support from at least 10% of the workforce is needed for a successful request but we expect that from April 2020 this will be reduced to 2% (although the 15 employee minimum threshold will remain).

Working day

Navigating workplace festivities

With the holiday season fast approaching, here is some insight on how to handle the pitfalls of the Christmas party.

How should employers deal with staff who attend work suffering the after-effects of a few too many mulled wines at the office party? It is important that employers check and renew contracts and policies relating to alcohol at work and to set clear expectations of behaviour, especially in party season.

Employers may wish to take steps to ensure that the work Christmas party doesn’t end up producing more than just a sore head the next morning. The recent case of Shelbourne v Cancer Research UK provides some reassurance for employers about their liability for accidents at work social events, but it also demonstrates the potential for serious consequences when a company-run social gets out of hand.

However, while employees may not always want their Christmas party antics permanently recorded and made available for all to see, as a general rule you do not need to approach every attendee to obtain a written consent to take photographs of them. If required, a simple process can be implemented, allowing employees to ask photographers directly not to take their photo, and it might be wise to revisit and re-circulate social media and device usage policies to all employees to make it clear about what they post after the social.

Commonplace issues such as conflicting holiday requests can often be a source of office tensions, but it comes as a surprise to many that, if this is handled incorrectly, employers could leave themselves open to discrimination accusations. When faced with conflicting holiday requests clear justification for any refusal should be provided so you are not seen to favour one employee over another.

disciplinary hearing

Recording meetings at work

Individual parties may have strong opinions in being able to prove what was said and how this was portrayed, however a recording device allows for the conversation to be stored and shown fairly.

There is nothing that can stop an employer and employee agreeing to record an internal meeting, such as a grievance or disciplinary, in fact it is advisable as it allows both parties to have an accurate record without having to laboriously write up the notes.

In certain circumstances employers should be aware they need to make reasonable adjustments where disability is a factor, such as an employee who is unable to take written notes.

As the employer, if you decide to allow an employee to record a conversation, it is ideal for you to take a copy immediately after so that the recording cannot be tampered with. In some occasions there is a risk that the employee may post it online. To try to mitigate this, it is normally best to use your own equipment and then store it safely, whilst giving access to a minimal amount of people.

Covert recordings are usually taken on the basis that evidence is needed to be captured in an electronic form, without the other party knowing. Some disciplinary procedures regulate the use of electronic recording devices in meetings or hearings, so that the recordings cannot be tampered with.

For Employers

As an employer you must have a very good reason for recording your employees without your employer knowing. Only in certain cases, such as where criminal activity is suspected, would justify recording a meeting without consent. Consider by secretly recording an individual, the trust between you and the employee may be broken, so in most cases it is better to ask them for their consent.

For Employees

If, as an employee, you secretly record a conversation which is relevant to a case, it is most likely that this evidence will be used. In discrimination cases if the recording provides just the act of discrimination occurring, then a tribunal may allow it. Make sure that you follow all guidelines set during a meeting, such as company policies that prohibit an employee from covertly recording a meeting.

What happens if an employee is suspected of gross misconduct – when do you suspend?

Black and white woman
What happens if an employee is suspected of gross misconduct – do you automatically suspend them?

Does your suspension letters say: ‘Suspension is a neutral act’?

Here’s a secret. Suspension is NOT a neutral act. As we know there’s no smoke without fire. Anyone who comes into contact with that employee knows they’ve been suspended. That includes colleague, clients, customers and suppliers. They assume the employee must have done something seriously wrong and it can tarnish their reputation.

I am of the view that there are TWO, and only two, occasions when it is acceptable to suspend an employee. The threshold is low, but you’ve still got to reach it. This is where the employer reasonably believes that they need to keep the employee out of the workplace because:

1. there is a real risk the employee will interfere with the investigation; or,

2. there is a real risk the employee’s presence will damage the business interests.

This point has been looked at in the Tribunal. The most recent of which was in the Employment Appeal Tribunal last year. This case involved a school, which suspended a teacher when it was not justified. The EAT decided that their act of suspension was enough to allow the employee to resign and claim unfair constructive dismissal.

It was found that the school’s act of suspension was a breach of trust and confidence which entitled her to resign and claim unfair dismissal. It will be interesting to see how this develops with further case law as it will be reviewed again.

So make sure before you just suspend an employee think very carefully if what they have done justifies this action.

Black and white woman

Agency Workers

The agency workers Regulations 2010 (AWR), prevent employers from treating agency workers as a second tier worker. The AWR introduced a variety of protections for agency workers, which apply either from the start of the agency worker’s engagement or after 12 weeks.

The AWR are not triggered if the individual is genuinely self-employed or genuinely autonomous and, therefore, not working under the employer’s supervision and direction.

Day 1 rights
From the first day of being engaged by an employer, agency workers have the right to access all collective facilities and amenities in the same way as employees at the same place. Such facilities may include canteens, childcare facilities, car parking and transport services.

Agency workers also have the Day 1 right to be informed about job vacancies with the employer during their engagement.

Rights after 12 weeks
After 12 weeks of engagement, agency workers have the right to the same basic working and employment conditions as those employed directly. This includes key elements of pay. The right to the same working conditions also applies to duration of working time, night working, rest periods, rest breaks, annual leave and paid time-off for antenatal appointments.

Liability for any breach of these rights after 12 weeks is apportioned between the employer and the agency. However, the agency will have a defence if it acted on information received from the employer concerning the pay or the working conditions, even if that information is wrong.

If any Agency worker wishes to challenge the employer
The agency worker put in a written request for information to the employer. The employer has 28 days to respond in writing.

Investigations as part of the Disciplinary process

Investigations as part of a Disciplinary Process

The key test when you are considering dismissing an employee for misconduct, was established in the case of British Home Stores Ltd v Burchell (1978).
This may be an old case but we still rely on ‘the Burchell test today when we look at a conduct dismissal to see whether it is unfair under section 94 of the Employment Rights Act 1996.

The test sets out 3 key steps:

1. The employer believed the employee to be guilty of misconduct;
2. The employer had reasonable grounds for that belief: and
3. At the time the employer held that belief, the employer had carried out a reasonable investigation.

The investigation part of any disciplinary process is very important.

We have set out 10 tips for investigation as follows:

1. Follow your disciplinary procedure.
2. If you want a separate investigation and disciplinary appoint an investigation officer to carry out an investigation into the misconduct allegations.
3. Carry out the investigation without unreasonable delay.
4. Progress the investigation in a fair and reasonable manner. The nature of the investigations will depend on the seriousness of the matter.
5. Keep an open mind and look for evidence which supports the employee’s case as well as evidence against.
6. Collate all relevant facts that will be needed to take a disciplinary decision. This will include collecting documents, speaking to witnesses and taking notes.
7. Consider whether it is appropriate to hold an investigatory meeting with the employee. This is not always necessary but may be important where suspension is being considered or if there are complicated facts to investigate.
8. There is no requirement for the employee to be accompanied at an investigation meeting, although the ACAS Code does say this is good practice. You must allow a companion to attend a disciplinary meeting.
9. In most situations the employee should be given advance warning of an investigation meeting and time to prepare.
10. If you are having multiple meetings, don’t consider disciplinary action at an investigation meeting. Leave that to the disciplinary hearing.

Investigations and Disciplinary hearings should be taken one step at a time. We can assist guide an employer through this process.


When Disciplinaries and Grievances overlap

When Disciplinaries and Grievances Collide.

A significant challenge for employers to overcome when disciplinaries and grievances collide, is when an employee who’s in trouble tries to save their own skin. It’s easy to be cynical about it, that doesn’t make you a bad employer as it’s a very human response. However, your feelings of cynicism must be kept under your hat as you can’t assume anything.

There are three main things that you need to do: a) keep an open mind. b) you’ve got to deal with the grievance. c) keep up to date records of how seriously you are taking it and be prepared to justify your decisions.

There is no need to postpone the disciplinary process in order to deal with a grievance. In fact, in most cases, it makes sense to deal with them both together, especially if there’s a cross over. If you ignore the grievance, you could be in breach of the ACAS code and that may mean more compensation for an employee should action be taken by them at a later stage. There are 3 things that you could do:

1. Postpone the discussion. A large amount of employers see this as a safe option and it shows the employee you are giving them breathing space and a fair chance.

2. Carry on with the disciplinary. If the grievance is unrelated to the disciplinary, there’s no need to stop it.

3. Deal with them both together. If you are going to do this, make sure you give both the grievance and the disciplinary the time and attention it needs. Ensure that you still follow the correct procedures making sure that the employee knows exactly what is happening, and give them time to prepare before any meeting or hearing.

Perhaps most importantly, make sure that you document everything and retain all the evidence you collect in the investigation process. Don’t be tempted to rush the procedure through and be prepared to push dates back if you need to. Keep on top of things and make sure that the grievance doesn’t hold things up unnecessarily and isn’t being used as a delay tactic.

If you require our help with any form of disciplinary or grievance procedure, contact us. We’d be happy to help.

Social Media – Employers dealing with the Challenge

With such a growth in social media this has created challenges for some employers. Staff may need to use social media during the day as part of their job responsibilities as well as using private social media accounts.

Top things to consider:
1. Different employers will have different approaches to the use of social media. It would be worth having some guidelines set out in a Social Media Policy so that employees are aware of what is acceptable and not acceptable and the consequences of any breach.

2. Have you checked that your information is protected and secured?
Employees build up a list of contacts on LinkedIn and other social media sites. It can be difficult to work out who ‘owns’ these contacts so a clause in the Employment Contract making it clear is useful.

3. Monitoring
Make sure you are clear to employees that you will monitor their data from time to time. Having an Internet, Email and Computer policy setting out the guidelines is very helpful. You should have a separate employee consent form.

4. Data Protection
With the General Data Protection Regulations it is good practice to have a separate employee consent regarding the use and processing of personal data of employees. You could add this to the monitoring consent form.

5. Disciplinary Issues
There has been a growing body of case law in this area, where employees have acted in appropriately and affected the reputation of their employers by their use of social media including their private use. By having the right guidelines in place and explaining them to employees then it is easier to be able to deal with a problem if it occurs.

Social Media – the challenges in the workplace

Employers have huge opportunities with the growth in social media, which also poses challenges managing employees use.

Staff may be required to use social media as part of their work, such as marketing, and it is important to check any such usage is managed appropriately.

Should companies consider putting in a social media policy?
Different workplaces will have different views on whether to introduce a social media policy. A policy is useful to set out guidance and the possible consequences of acting in breach of the policy. It is also advisable to give your employees training on the appropriate use of social media so they cannot argue they did not understand it.

What about contacts your employees build up during work?
Employees build up a significant list of contacts and followers via social media accounts. The question often is who owns this?
Employers should think about what business information employees are gathering in social media accounts. It is useful to have a clause in your employment contract being clear of who owns these contacts and the use of social media.

It is acceptable for an employer to have a policy which allows for reasonable monitoring of internet and email use. It is wise to have this as a separate consent for employees to sign so they are clear about this.

It is expected if an employer is going to discipline someone for misuse of social media that they are clear about the guidance and the consequences of not following this. The recent case law in this area shows that employment tribunals are more likely to find a dismissal for misuse of social media to be fair in circumstances where the employer has been cleared and explained this to employees.

We can help draft a social media policy for your employees and assist with trainingData Protection2