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Did the use of NHS changing room by transgender woman give rise to claims for harassment and/or indirect discrimination?

Tue, 03 Feb 2026 14:32:00 GMT

Did the use of NHS changing room by transgender woman give rise to claims for harassment and/or indirect discrimination?

In the case of Hutchinson and others v County Durham and Darlington NHS Foundation Trust 2024, the Employment Tribunal considered whether the Trust’s policy of allowing staff to use changing rooms of their choice which corresponds with their affirmed gender amounted to unlawful harassment and indirect sex discrimination.

Background The Trust operated a uniform policy which prohibited staff from wearing their uniforms to or from work and were required to change, using the changing facilities provided, at work.

The Trust also had a Transition in the Workplace policy allowing transgender staff to use the changing room of their choice, which corresponded with their affirmed gender. If staff did not want to share gender specific facilities, then the policy required them to use alternative facilities.

One member of staff, Rose Henderson, was a biological male who identified as female. Rose Henderson was permitted to use the female changing room.

Eight female nurses objected to using communal female changing facilities with a colleague who was biologically male. They raised their concerns initially informally and subsequently through a formal grievance process, but they were not upheld. They, therefore, brought claims for harassment and indirect sex discrimination.

Employment Tribunal decision The Tribunal held that the requirement for female nurses to share changing facilities with trans women, who were biologically male, amounted unwanted conduct related to sex and/or gender reassignment, which had the effect of violating their dignity and created a hostile, intimidating, humiliating and degrading environment. They therefore succeeded in their claim for harassment.

Furthermore, the provision, criterion or practice (PCP) of permitting access to single-sex changing facilities based on asserted gender identity, and the PCP of prioritising the use of single-sex facilities by transgender employees to align with their identity over the rights of other employees, put women at a particular disadvantage compared to men. Women were more likely than men to experience distress or humiliation when undressing in communal areas shared with a member of the opposite biological sex. The Trust could not demonstrate that the approach was a proportionate means of achieving a legitimate aim (i.e. the statutory defence) and, as such, the claim for indirect sex discrimination succeeded.

Learning Outcome Whilst this is an employment tribunal decision, and is not therefore binding authority, and whilst each tribunal case will be determined on the individual facts of each case, this case shows the change in direction in application of the law following the landmark decision of For Women Scotland. It also acts as a reminder to employers that one set of rights for one group of employees, does not automatically override another for another group, and the need to deal with complaints in a sensitive and meaningful manner.

If you’d like advice tailored to your situation, contact Nicola Cockerill on 0800 915 7777 or email nc@kilgannonlaw.co.uk .

Tribunal ruling puts ‘up or out’ employment policies under scrutiny

Tue, 03 Feb 2026 11:37:00 GMT

Tribunal ruling puts ‘up or out’ employment policies under scrutiny

A recent Employment Appeal Tribunal ruling in favour of Sanju Pal, a former Accenture manager diagnosed with endometriosis, has brought renewed focus on the lawfulness of so-called “up or out” performance policies used by many professional services firms. The appeal judgment criticised the original tribunal’s handling of both disability and justification issues. The judgment indicates that employers making dismissals based on assessment of readiness for promotion, without the employee having carried out the work for the role above, will struggle to show that decision is fair.

Employment law specialists have noted that dismissing employees on capability grounds linked to future roles, rather than the role they currently perform, can be a high-risk strategy. The ruling also underscores the importance of tribunals engaging fully with medical evidence and the lived impact of conditions such as endometriosis.

Read the full Times article here:
https://www.thetimes.com/article/53105b24-8e55-4d52-83f9-c16cf477edab

Ms Sanju Pal succeeds in appeal against Accenture at the Employment Appeal Tribunal

Mon, 19 Jan 2026 12:12:00 GMT

Ms Sanju Pal succeeds in appeal against Accenture at the Employment Appeal Tribunal – Tribunal’s reasoning on disability discrimination due to endometriosis was “wholly inadequate” and the decision could not stand

Sanju Pal, a former manager at global management consulting firm Accenture, where she worked for a decade, was dismissed in 2019 for alleged underperformance linked to not being ready for promotion (‘the progression-based model’) within the required time at level (‘TAL’) whilst she was suffering with endometriosis. Despite winning her claim for Unfair Dismissal at the Employment Tribunal (‘ET’), her compensation was reduced by 100% and her claim for disability discrimination was rejected. Ms Pal appealed to the Employment Appeal Tribunal (‘EAT’) and her case was heard by HHJ James Tayler on 9 December 2025.

The Employment Tribunal’s findings

The Employment Tribunal held in May 2022 that Ms Pal was unfairly dismissed due to procedural failures by Accenture. Ms Pal was dismissed using a procedure that was tailored to misconduct dismissals and not capability dismissals. It was found that there were concerns around the investigation process. There were also concerns that the composition of the dismissal panel was outside the terms of the policy used, as the same people who carried out Ms Pal’s dismissal were involved in the management process.

However, the ET found that there would be no award for Ms Pal’s loss of earnings (‘the compensatory award’) on the basis that if a fair procedure has been used, the same outcome would have been reached (the Polkey reduction). The ET also found that Ms Pal was not disabled due to her endometriosis. She appealed the decision on three grounds.

The decision of the Employment Appeal Tribunal

1. The 100% Polkey reduction

The ET had found that Ms Pal’s dismissal was unfair because Accenture had failed to comply with its Disciplinary and Appeals policy. The EAT confirmed that a Polkey reduction is to be assessed on the basis of what the employer would, or might have done, had it had the chance to rectify the defect. If an employer gave evidence that it would not refrain from the action that made the dismissal unfair if it were to do it again, it cannot be just and equitable to assess compensation on the basis that it would then have done so.

The ET had erred by assessing what it would have done, rather than looking to Accenture to prove what it would have done had it had the opportunity to correct their policy error. In doing so the ET applied the wrong counterfactual of a 100% Polkey reduction. This ground of appeal succeeded and has been sent back to the ET to consider what would have happened if Accenture had complied with their policy requirements to undertake an independent investigation and have independent decision makers prior to dismissing Ms Pal.

2. The progression-based model (“up or elsewhere”)

Accenture’s progression-based model in the ‘Client & Market’ career track implies that if an employee is not deemed to be ready for promotion within a certain period of time at their level, they might face dismissal. Ms Pal argued that this model is unfair in law on the basis that the Employment Rights Act 1996 only permits dismissal relating to underperformance in the position the employee held, not on the basis that an employer thinks an employee is not capable for the job at the next level up.

Upholding this ground of appeal, the EAT confirmed that an employee can only be dismissed for capability relating to “the work of the kind which he was employed by the employer to do ” and that this is to be assessed on the basis of the work required under the contract of employment. This meant that Ms Pal’s dismissal under the progression-based model may not be a potentially fair reason under the heading of ‘capability’.

The EAT considered that a contract may set out that the work required may include demonstrating the ability for promotion, but the employer would still be required to show they acted fairly if the employee had not been required to actually carry out the next level of work in practice.

3. Disability Discrimination due to Endometriosis

Prior to her dismissal Ms Pal was also suffering from endometriosis, which was diagnosed in September 2018 when she underwent surgery for the removal of painful large cysts (endometrioma) on her ovaries. Accenture decided to terminate Ms Pal’s employment just 3 months after her phased return to work ended. The ET held that Ms Pal had not proven that her endometriosis had an ongoing substantial effect on her normal day to day activities, nor had these effects lasted or were likely to last more than a year. It was also found that Accenture had no knowledge of disability, nor could it reasonably be expected to have such knowledge.

The EAT found that as the ET had formed an extremely adverse view of Ms Pal’s credibility, they effectively ignored her disability impact statement. The ET should have considered whether it accepted some of Ms Pal’s impact statement as her evidence that she was affected by endometriosis was supported by ‘significant’ medical evidence. The ET had stated many women with endometriosis are without symptoms, or they are mild and are never diagnosed. The EAT viewed this unattributed statement as irrelevant to Ms Pal who had ‘significant symptoms and underwent surgery’. The EAT went on to hold the ET’s reasoning was “wholly inadequate” to demonstrate the ET properly analysed whether Ms Pal was a disabled person due to endometriosis.

The EAT noted that it was unclear if the ET thought recovery from surgery was not an adverse effect arising from endometriosis. The EAT stated that if an employee is absent from work because of treatment for an impairment, generally that is a substantial adverse effect on normal day-to-day activities. The ET had also not considered the likelihood of recurrence when there was a medical report already highlighting a recurrence of Ms Pal’s endometrioma in March 2019. It also failed to consider what the position would be if Ms Pal did not have medical treatment for her endometriosis.

The EAT also held that as the ET erred in its approach to whether Ms Pal was disabled, they didn’t properly assess if Accenture had knowledge or constructive knowledge of disability. The ET had failed to analyse whether Accenture had some regard to Ms Pal’s sick leave or her phased return to work in London (which arose due to her endometriosis) in deciding to dismiss her. Finally, it confirmed that the ET’s brief 2 paragraph assessment on whether the treatment of Ms Pal was a proportionate means of achieving a legitimate aim was ‘unsafe’. The ET can only carry out the necessarily rigorous balancing exercise when the other factors have been determined.

The EAT concluded that the determinations that Ms Pal was not disabled and that she was not subject to discrimination because of something arising in consequence of disability cannot stand. Ground 3 succeeded, with the matter being sent back to a newly constituted ET as it is important that Ms Pal had confidence that the remitted matters will be considered afresh.

An additional point to take away on witness credibility

The EAT confirmed that generalised findings on credibility (such as one party is totally credible and the other is not) are rarely a useful tool for resolving specific issues of fact about which there is relevant evidence. It is nearly always better to assess the evidence relevant to the issue and then make a determination based on the balance of probabilities. Importantly it highlighted that even if a witness is unreliable about some matters, it does not mean they are not telling the truth about the issue to be determined. Reliable witnesses are still capable of being mistaken about issues.

Ms Pal is represented by Gerard Airey of Kilgannon and Partners LLP and Elaine Banton of 7BR Chambers. To read the judgment please click the link .

Non-binary identity does not give rise to the protected characteristic of gender reassignment

Thu, 18 Dec 2025 21:22:00 GMT

Non-binary identity does not give rise to the protected characteristic of gender reassignment

In the case of Lockwood v Cheshire and Wirral NHS Foundation Trust and Others [2025], the Employment Tribunal held that identifying as non-binary does not give rise to gender reassignment protection under the Equality Act 2010.
Facts The claimant, Haech Lockwood, was born female and commenced employment with the Trust in November 2021 under the name of Heather. On their application form, the Trust were informed that they identified as non-binary and used the pronouns: they/them.
In 2023, with the support of the claimant’s manager, an email was sent to colleagues informing them that the claimant wished to be known as Haech Lockwood, that they identified as Trans/gender fluid and did not identify as male or female, using their deadname caused gender dysmorphia, and their pronouns were: they/them. Following their change of name by deed poll, the claimant requested their name be changed on the Trust’s systems. This took several months to action due to the Trust deeming the request “low urgency”. Once it was considered to have been completed, the claimant’s deadname continued to show on Microsoft Teams, which resulted in the need for a complete reboot of their laptop.
Before the reboot could be actioned, the claimant was absent from work due to stress and covid. During that time occupational health wrote to the claimant, addressing their correspondence to “Other Heather Lockwood”. The claimant complained that this caused them distress.
The claimant raised an informal grievance, which was subsequently escalated to formal grievances. In addition to the incidents outlined above, the claimant complained that their deadname continued to appear on correspondence to patients, that they were repeatedly misgendered including, for example, by ICT when a service desk ticket was raised which referred to the claimant as “her” and internal flu/covid vaccination clinics referred to the claimant as “her”; and there was an occasion when a colleague had failed to acknowledge them in a corridor when the claimant had said “good morning”.
The claimant also complained that when a copy of their contract of employment had been requested, two had been provided. One which was in the claimant’s deadname, the original contract which had been signed at the time employment commenced, and the second in the name of Haech, which reflected a reduction in the hours worked. The claimant complained the contract in the deadname caused them distress.
The claimant brought claims of harassment related to gender reassignment.
Decision The Employment Tribunal held that the claimant did not have a protected characteristic of gender reassignment.
In reaching this decision the Employment Tribunal found that, whilst the claimant had changed their name by deed poll and lived under that name, and they had changed their preferred pronouns to: they/them, the claimant did not intend to take any other steps to change their sex, medical or otherwise.
The Supreme Court’s decision in the landmark For Women Scotland v Scottish Ministers case in April 2025, held that reference to “sex” meant biological sex. As such, sex was binary – male and female.
For the purposes of section 7 of the Equality Act 2010, a person has the protected characteristic if they propose to, are or have undergone a process whereby they propose to “reassign” their sex. The Employment Tribunal in this case concluded “reassigning” meant “a move from one thing to another”, i.e. “it requires a from and a to”, which meant reassigning their sex to that of the opposite sex. Whilst the claimant had taken steps to change attributes of their sex, namely changing their name and preferred pronouns, these were viewed by the Employment Tribunal as steps to move away from the female sex (i.e. non-binary) but not to move from one sex to another. The claimant was not proposing, nor intending, to take any steps to reassign their sex from female to male.
Learning Outcome Whilst this is an employment tribunal decision, and is not therefore binding authority, it serves as a useful reminder that Tribunals will review the facts of each case and decisions are made on a case-by-case basis.
Practically, it is also a useful reminder to businesses of the importance of ensuring inclusive workplace environments and, whether or not non-binary individuals are protected under section 7, misgendering and deadnaming can still give rise to other potential claims, such as constructive dismissal claims.

If you’d like advice tailored to your situation, contact Nicola Cockerill on 0800 915 7777 or email nc@kilgannonlaw.co.uk .

The dismissal of a cleaner employed in two jobs working 17 hour days was fair

Thu, 11 Dec 2025 10:24:00 GMT

The dismissal of a cleaner employed in two jobs working 17 hour days was fair

In the case of Ogumodede v Churchill Contract Services [2025] 9 WLUK 482, the Employment Tribunal found that an employee (Ms Ogumodele) had been fairly dismissed when her employer (Churchill Contract Services) learned that they employed her to in two jobs and the combined hours breached the Working Time Regulations.
Background
Ms Ogumodede was employed by Churchill Contract Services from 5 April 2004 as a cleaner at the Deutsche Bank and worked a day shift from 8am to 5pm Monday to Friday. On 20 November 2008 she commenced employment with KGB and undertook a night shift role cleaning at the Houses of Parliament from 10pm to 6am Monday to Friday. Collectively, she worked 77.5 hours per week.
In May 2023 Churchill Contract Services took over the cleaning services for the Houses of Parliament from KGB and Ms Ogumodede’s employment transferred, under TUPE, to them. It was at this time that they became aware she was working two jobs. Concerned about the hours Ms Ogumodede was working, which were 17 hours in a 24-hour period with breaks between the two roles of only five hours in the evening and two hours in the morning, Churchill Contract Services discussed their concerns with her. They suggested reducing her hours for the Houses of Parliament work to 6pm to 9pm, which would have adhered to the working time rules, but she refused. Ms Ogumodede was dismissed with immediate effect from her contract in respect of the Houses of Parliament work.
Ms Ogumodede brought several claims including unfair dismissal.
Tribunal Decision
Ms Ogumodede accepted, during the course of the hearing, that she started working for KGB at the Houses of Parliament when she was already employed by Churchill Contract Services to work a day shift at Deutsche Bank, and she deliberately told KGB that her Houses of Parliament work was her only job as she knew she would be in breach of the law regarding working time.
The employment tribunal dismissed her claims. It concluded that Churchill Contract Services “took a reasonable approach” and the process “was clearly fair”. They had tried to discuss their concerns with her on several occasions and, to enable her to continue working at the Houses of Parliament, had offered to reduce those hours so the Working Time Regulations was not breached. However, Ms Ogumodede refused to engage in the process and refused the offer. The tribunal accepted that Churchill Contract Services could not continue to employ her in breach of the working time provisions and, when deciding which contract to suspend her from, Churchill Contract Services had chosen the Houses of Parliament as the hours and pay were not as good as for the Deutsche Bank.
The tribunal referenced the purpose of the Working Time Regulations to stop night workers risking their own and others’ health and safety by prohibiting excessive working time, which could have “a potential cost to society”. As such, they could not condone Ms Ogumodede’s conduct.
Take-away points
Whilst the dismissal in this case was held to be fair, this case serves as a reminder to employers that it is important to be aware of any additional work that employees are undertaking, to avoid being in breach of the Working Time Regulations. Breach of the regulations can give rise to penalties, including unlimited fines and imprisonment. There are a number of ways an employer can manage this, including:

Provisions within contracts of employment prohibiting and/or requiring written disclosure of secondary employment to the employer.
Clear policies on secondary employment which are communicated to employees.
Awareness by managers of secondary employment, through regular conversations, and confidence to enquire about it if there is any.

If you’d like advice tailored to your situation, contact Nicola Cockerill on 0800 915 7777 or email nc@kilgannonlaw.co.uk .

Assurances by CEO bind Company to extend share options post-employment

Wed, 10 Dec 2025 16:28:00 GMT

Assurances by CEO bind Company to extend share options post-employment

The importance of obtaining legal advice on settlement agreements where employees have share options, was highlighted in the High Court case of Dixon v GlobalData Plc [2025] WEHC 2156 (Ch).
Facts In this case Mr Dixon had worked for his employer for nine years between 2006 and 2014, during which time he had been granted share options in the parent company.
Mr Dixon agreed to extend the date his employment would terminate by three months, and agreed to be bound by post termination restrictions, relying on an assurance given by the CEO of the parent company that he could retain his share options after leaving (usually, under the terms of the share option scheme, they would lapse at the time his employment terminated). The parties entered into a settlement agreement to record these terms; however, the parent company took no steps to exercise its discretion to extend the share options.
Several years later Mr Dixon sought to exercise his share options, but the company refused, claiming they had lapsed on termination of his employment.
Mr Dixon brought a claim in the High Court.
Decision The High Court found that, whilst the share option scheme rules provided discretionary extension power which would have allowed for options to continue after termination, these had not been exercised formally by the company and the CEO was not authorised by the Board to exercise this power.
An alternative argument put forward by Mr Dixon was through the doctrine of proprietary estoppel (a legal principle preventing a party from reneging on a promise or assurance in respect of land or property, when the other party has relied on that promise or assurance to their detriment). The High Court found that assurances had been given to Mr Dixon by the CEO that, if he remained in employment for a further few months then, following the termination of his employment, he would be entitled to exercise his share options on the same basis as if he were employed. Mr Dixon had relied on this assurance, it was reasonable for him to have done so, this assurance was to his detriment, and the Court held it would be “unconscionable” for the company to renege on the promise.
As such, Mr Dixon’s claim succeeded.
Takeaway Points This case highlights the importance of accurately reflecting the terms that have been agreed between the parties on termination of employment (both those agreed verbally and in writing). Where it is proposed that discretion be exercised contrary to default terms of a company scheme, in this case a share option scheme, ensure authority is obtained in advance from the appropriate person(s) and that effect will be given to formally exercise the commitment.
It is also important for businesses to be aware that any representations or assurances given by members of the senior management team could, subsequently, be relied on by an employee.

If you’d like advice tailored to your situation, contact Nicola Cockerill on 0800 915 7777 or email nc@kilgannonlaw.co.uk .

ACAS Early Conciliation: Why more time may not be the best healer

Mon, 10 Nov 2025 13:56:00 GMT

ACAS Early Conciliation: Why more time may not be the best healer

Dominic Holmes, Kilgannon & Partners
Amidst all the noise about the UK Government trying to get its flagship Employment Rights Bill through Parliament, it has very quietly introduced an important change to the rules on starting employment tribunal claims.

What’s the change?
Before an individual can lodge a complaint with an Employment Tribunal, they are required to instigate an early conciliation process through ACAS.
Once they do this, the clock is stopped on the time limits for bringing a claim (the rules are a bit more complex than this, but that’s the basic premise). There is then a six-week early conciliation period, during which ACAS is tasked with assisting the parties to reach a compromise that avoids litigation altogether.
If early conciliation is not successful, the potential claimant is issued with a certificate. Without this certificate, the Employment Tribunal will not accept their claim. So the early conciliation process requires them to pause and explore alternative dispute resolution through ACAS, before presenting a claim form.
The big change is that, from 1 December 2025, the early conciliation period will be doubled from six weeks to 12 weeks.

Why the extra six weeks?
There is no clue in the Explanatory Notes to the catchily-titled Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2025 .
In its most recent annual report , ACAS stated that it received 20,000 more early conciliation notifications than in the previous year. When resources are already stretched thin, this inevitably results in conciliation efforts on some cases being delayed or perfunctory – which rather defeats the point. There is also plenty of anecdotal evidence which suggests that ACAS is struggling to meet the increased demand for its services.
So it appears that this change is simply aimed at giving ACAS more time to get through the volume of early conciliation notifications it is receiving.
The Chief Executive of ACAS has also been quoted by Personnel Today as saying it is “a prudent move and good news for workers and employers looking to resolve disputes at work, giving them more time to seek resolution without a potentially costly tribunal”.
Is it good news?
There certainly hasn’t been much fanfare about it. If anything, it seems to be an emergency release valve to allow hard-working ACAS conciliators some breathing space to give more cases the attention they deserve.
If I am being generous, I guess delayed conciliation is better than no conciliation. But this is not a ringing endorsement of quite an important change.
I have tried to think of other reasons why it might be good news. I wondered whether the extra six weeks could give potential claimants space to self-reflect on whether they really want to litigate. However, I doubt that this is more effective than an ACAS conciliator getting involved earlier and having a conversation with the individual about their complaint.
It is also possible that the complainant finds another job in the meantime (if they have resigned or been dismissed), which reduces the value of the claim and/or dampens their appetite for a fight – but that could happen anyway and isn’t contingent on extending the conciliation period.
Overall, I tend to think it has limited merit – even if it may be a necessary stop-gap measure to ease pressure on a creaking system.
I am concerned that it may simply become an exercise in can-kicking. 12 weeks is a long time. Potential claimants will wait longer to be contacted by ACAS, which means longer to bring a claim, which means longer until that claim is processed and (much) longer until it reaches a final hearing (if it cannot be settled earlier). Employers face longer periods of uncertainty and delay can often entrench positions on both sides.

The value of ACAS early conciliation
The frustrating thing about all this is that ACAS early conciliation is actually pretty effective in helping to resolve employment disputes.
There are undoubtedly some claimants (and employers) who simply see it as a procedural hoop to jump through, before they get to what they perceive as the real business of litigating. And that is unlikely to change.
But the statistics are revealing – of the 117,000 cases where early conciliation was instigated by claimants last year, 78,000 (i.e. two-thirds) did not end up in a Tribunal claim being submitted. Only 10,000 actually required judicial time to resolve (such as a final hearing, strike-out or default judgment) – that’s about 8.5%.
This means that approximately 91.5% of claims that started with early conciliation never got to a hearing. Clearly, not all of these will have been influenced by ACAS’s involvement, as there are other reasons why claims do not proceed. But that is still a pretty impressive outcome.
I have been involved in plenty of cases where early conciliation has made a real difference, particularly when dealing with claimants who are unrepresented or have unrealistic expectations about what they can achieve through litigation. I have seen the value ACAS conciliators offer, even where the dispute has been long-running and the parties’ working assumption is that it is a pre-action box to tick.

Is there a better solution?
Yes, in my view. Put simply, ACAS needs more investment.
It seems to me that doubling the early conciliation period is the type of “sticking plaster” approach that the UK Government vowed to eschew, when it came into power last year.
We all know public money is tight – and the fiscal challenges that are due to be addressed in the forthcoming Budget are well-documented. But a cursory glance at the numbers shows that a little additional money for ACAS will probably go a long way.
In 2024-25, ACAS received around £58.3 million of public funding. Even if that was increased by say, 30%, it could have substantial impact for a sum of money that is relatively insubstantial in the grand scheme of things
At a time when increased limitation periods and enhanced rights for workers in the Employment Rights Bill may result in more potential claims in coming years, there is logic in getting ahead of that anticipated influx by giving ACAS the resources to hire, train and give experience to a larger cohort of skilled conciliators.
It could also be a really effective way to deal with the long backlog of cases in the Employment Tribunal. The success rate of early conciliation suggests there would be fewer new cases pouring into the Tribunal system. If there could also be more resources for ACAS to assist in conciliating existing claims, so much the better.
In my view this is ultimately a better way to resolve disputes. Although employment tribunal litigation cannot always be avoided, there are often no real winners once the case reaches a final hearing.

Sanju Pal v Accenture UK Ltd - An appeal on endometriosis and the corporate consulting model - Category A in the Employment Appeal Tribunal on 9 and 10 December 2025

Mon, 01 Sep 2025 10:35:00 GMT

Sanju Pal v Accenture UK Ltd - An appeal on endometriosis and the corporate consulting model - Category A in the Employment Appeal Tribunal on 9 and 10 December 2025
Sanju Pal, a former manager at global management consulting firm Accenture, where she worked for a decade, has been embroiled in a legal battle that will now reach a hearing before the Employment Appeal Tribunal on 9 and 10 December 2025. Ms Pal was dismissed in 2019 for alleged underperformance linked to not being ready for promotion (‘the progression-based model’) within the required time at level (‘TAL’) whilst she was suffering with endometriosis.
No compensation for unfair dismissal
The Employment Tribunal held in May 2022 that Ms Pal was unfairly dismissed due to procedural failures by Accenture. Ms Pal was dismissed using a procedure that was tailored to misconduct dismissals and not capability dismissals. It was found that there were concerns around the investigation process. There were also concerns that the composition of the dismissal panel was outside the terms of the policy used, as the same people who carried out Ms Pal’s dismissal were involved in the said investigation process.
However, the Tribunal found that there would be no award for Ms Pal’s loss of earnings (‘the compensatory award’) on the basis that if a fair procedure has been used, the same outcome would have been reached. The failure to award loss of earnings is being appealed, alongside the findings that there was no unfairness in dismissing Ms Pal for not being ready for promotion under the progression-based model. One point that will be argued is that prior to dismissal Ms Pal was not placed on a performance improvement plan which appears contrary to one of Accenture’s procedure documents.
Challenging the progression-based model (“up or out”)
Accenture’s progression-based model in the ‘Client & Market’ career track implies that if an employee isn't deemed to be ready for promotion within a certain period of time at their level, they might face dismissal. Ms Pal argues that this model is unfair in law on the basis that the Employment Rights Act 1996 only permits dismissal relating to underperformance in the position the employee held, not on the basis that an employer thinks an employee is not ready for the job at the next level up. This is an extremely important argument as it will significantly affect the management consulting industry where the progression-based model is widely used as a basis to terminate employees.
Disability Discrimination due to Endometriosis
Prior to her dismissal Ms Pal was also suffering from endometriosis, which was diagnosed in September 2018 when Ms Pal underwent surgery for the removal of painful large cysts on her ovaries. Accenture decided to terminate Ms Pal’s employment just 3 months after her phased return to work ended. The Tribunal held that Ms Pal had not proven that her endometriosis had an ongoing substantial effect on her normal day to day activities. It was held also that she had not proved that the substantial effects had lasted or were likely to last more than a year. It was also found that Accenture had no knowledge of disability, nor could it reasonably be expected to have such knowledge.
Ms Pal appeals this decision. Permission to appeal was granted as it is arguable the Tribunal made an error of law in this decision on the basis of the evidence in medical reports, the date of the decision to dismiss and that at the time of Ms Pal’s internal appeal to Accenture in September 2019 she had endometriosis for 12 months. There is documentation to show that a Managing Director at Accenture who was the appeal manager, was aware of Ms Pal’s endometriosis based on what Ms Pal told her and her own investigation into whether endometriosis was a deemed disability.
CrowdJustice fundraising campaign
Ms Pal has launched a crowdfunding campaign on CrowdJustice to support her legal fight against the progression-based model and to confirm that her endometriosis was a disability at the time of her dismissal from Accenture. To provide support for her appeal please go to the following link:
https://www.crowdjustice.com/case/accenture-disability-discrimination-endometriosis/
Ms Pal is represented by Gerard Airey of Kilgannon and Partners LLP and Elaine Banton of 7BR Chambers.

National Living Wage and Minimum Wage - Rate Changes

Mon, 31 Mar 2025 20:48:00 GMT

National Living Wage and Minimum Wage The following new rates will come into force on 1 April 2025:

A full time employee that is over 21 will soon be earning nearly £24,000 per annum which could mean that more employees are close to the minimum wage. Having an employee working close to the minimum wage poses risks to businesses. For example, if an employee works any overtime, they may then fall below the minimum wage.
Statutory Parental Payments From 6 April 2025, the statutory weekly rate for maternity, paternity, adoption shared parental and parental bereavement pay increases to £187.18 from £184.03. For Maternity and Adoption pay, the first six weeks of leave are paid at 90% of an employee’s average weekly earnings, with the following 33 weeks paid at the lower of that rate or the statutory weekly rate. Statutory Paternity and Statutory Parental Bereavement Pay give two weeks at the weekly rate and Shared Parental Pay gives up to 37 weeks for one parent at a time at the statutory weekly rate.
Statutory Sick Pay From 6 April 2025, the weekly rate for Statutory Sick Pay will increase from £116.75 to £118.75.
Employer’s National Insurance Contributions From 6 April 2025 there will also be a change in the rate of employer’s National Insurance Contributions which is increasing from 13.8% to 15% and there will be a decrease in the threshold after which employers must pay national insurance contributions from £9,100 per annum to £5,000 per annum.
Increase to maximum compensation and weekly pay limits For terminations that take effect from 6 April 2025, the limit on a week’s pay will increase to £719 for the purposes of calculating statutory redundancy pay and the basic award for unfair dismissal so the maximum amount will increase to £21,570.
The maximum compensatory award will increase to £118,223.
Vento Bands The guidelines for calculating discrimination will increase for claims presented at tribunal from 6th April 2025 as follows:

Lower band - £1,200 to £12,100 (less serious cases);
Middle band of £12,100 to £36,400 (cases that do not merit an award in the upper band);
Upper band of £36,400 to £60,700 (the most serious cases) and the most exceptional cases capable of exceeding £60,700.

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 11.01.25

Essential Steps to Navigate New UK Employment Laws: Preventing Workplace Sexual Harassment

Mon, 13 Jan 2025 12:53:00 GMT

Successful defence of appeal in the Court of Appeal against HSBC

Although the UK Government has recently announced its intention to make sweeping reforms to employment law, one recent important change has already come into effect: the duty to prevent sexual harassment in the workplace.
We now have some guidance, which we have been reviewing, and while we do not have a definitive list of what you must do, our view is that there are certain key steps you should take without delay.
As a client or contact of Kilgannon & Partners, we are here to support you with addressing areas of potential risk and ensuring compliance. We have also teamed up with our sister company, www.strategichr.co.uk and between us, we can help with the following (and more, should you receive a complaint):
1. Undertake a risk assessment An HR Consultant can attend to undertake an assessment of the potential risks. This includes looking at how you operate to identity areas/issues that could carry potential risk of sexual harassment happening; whether from power imbalances, to events your staff attend, especially those involving alcohol.
Following the risk assessment, your dedicated HR Consultant will explore ways in which these areas of risk can be mitigated, while appreciating the nature of your business, and will partner with you through implementation.
2. Update your policies and procedures The agreed outcomes you implement should be reflected in your policies and procedures, which your dedicated Solicitor can update (with no extra charge for those who subscribe to our fixed-fee services).
3. Train all staff The risks identified and measures taken can then form the basis of bespoke HR training from Strategic HR, and which can be further tailored when training managers, all staff and/or HR teams.
4. Use a confidential and independent third-party reporting service Lastly, you can subscribe to the confidential reporting service Whisper; allowing your staff to have access to a confidential (and if they want, anonymous) safe space where they can discuss any sexual harassment issues and agree what is to be reported to you on their behalf.
If any of these services are of interest to you, please do not hesitate to get in touch: m k@kilgannonlaw.co.uk / 07769 700343

The Home Office Expands Sponsor Licence Priority Services

Mon, 16 Dec 2024 11:45:00 GMT

The Home Office expands sponsor licence priority services

The UK Home Office has expanded its sponsor licence priority services to offer greater flexibility and faster processing for prospective and current sponsors of migrant workers.
Removal of the Pre-Licence priority service cap
Previously, the Home Office limited the number of daily applications for its pre-licence priority service to 30. This daily cap has now been removed. The pre-licence priority service is designed for organisations that have applied for a sponsor licence and seek to bring skilled workers to the UK more swiftly. By paying a £500 fee, applicants can reduce their waiting time from approximately eight weeks to around ten working days.
This improvement aims to streamline the onboarding process for prospective sponsors, making it more responsive to business needs, particularly in sectors where timely recruitment is critical.
Increased capacity for priority change of circumstances requests
In addition to the changes for prospective sponsors, the Home Office has also expanded the capacity of its priority change of circumstances service. The daily limit has been raised from 60 to 100 requests, enabling more existing sponsors to expedite certain administrative changes to their licences.
These priority requests cover a range of scenarios, such as increasing Certificate of Sponsorship allocations, adding new Level 1 Users, or updating an organisation’s details. By paying a £200 fee per request, sponsors can expect these changes to be considered within five working days, significantly down from the previous standard processing time of up to 18 weeks.
Implications for employers and sponsors
The removal and relaxation of these caps are part of broader efforts to improve the efficiency and responsiveness of the UK’s sponsored immigration system. For employers, the expanded priority services can play a key role in meeting urgent staffing needs. For sponsors managing ongoing compliance and administrative tasks, the quicker turnaround means less downtime and reduced uncertainty.
As the UK continues to refine its immigration framework, these expanded priority services underscore the Home Office’s commitment to supporting employers by cutting through red tape and ensuring that critical workforce decisions can be made swiftly and efficiently.

Article by Natasha Davies nd@kilgannonlaw.co.uk

Successful defence of appeal in the Court of Appeal against HSBC

Mon, 16 Dec 2024 11:12:00 GMT

Successful defence of appeal in the Court of Appeal against HSBC

Kilgannon and Partners are pleased to post that our client, Carmen Chevalier-Firescu, has succeeded in defending an appeal from HSBC about the strike out of her claim in the Court of Appeal. Carmen’s claim was initially struck out by the East London Employment Tribunal. One of the reasons given was that it was not just and equitable to extend time. The Employment Appeal Tribunal decided that this needed to be revisited by the Tribunal. This led to HSBC appealing to the Court of Appeal to try and reinstate the original decision.
Carmen was represented in the Court of Appeal by Oliver Segal KC and Elaine Banton, instructed by our Gerard Airey.
The Court of Appeal decided that the decision of the East London Employment Tribunal to strike out Carmen’s claims needed to be looked at again by a new Tribunal to decide if time should be extended.
The Court decided that the 16 factors that the Tribunal had in mind were either completely irrelevant to an assessment of Carmen’s case for extending time, or at best they were marginally relevant. It was accepted that it was Carmen’s case that it was only clear to her in 2020 that she might have a good claim for victimisation and discrimination against HSBC for not getting a role in mid-2018.
The Court decided that the Tribunal didn’t make a clear sequence of findings about what Carmen knew and when; it wasn’t clear whether there was one or more than one negative reference; and the ET wasn’t clear on what was disclosed in the DSARs of 2018 and 2020 to establish the knowledge Carmen had.
The Court of Appeal’s full reasoning can be found in the Judgment below: https://caselaw.nationalarchives.gov.uk/ewca/civ/2024/1550?query=hsbc&court=ewca%2Fciv
For more publicity on the case head to: https://www.reuters.com/business/finance/hsbc-loses-appeal-over-job-seeking-bankers-discrimination-claim-2024-12-11/
and https://www.law360.com/financial-services-uk/articles/2272969/hsbc-loses-appeal-in-banker-s-sex-bias-case

Article by Gerard Airey ga@kilgannonlaw.co.uk

Employer's obligation to prevent illegal working

Thu, 12 Dec 2024 13:10:00 GMT

An employer must check right to work through one of the following three methods before the employee commences employment:

1. A manual right to work check (all citizens)
2. A right to work check using Identity Document Validation Technology (IDVT) via the services of an Identity Service Provider (IDSP) (British and Irish citizens); or
3. A Home Office online right to work check (non-British and non-Irish citizens).
There are three basic steps:

Obtain original versions of one or more of the acceptable documents (List A or List B);
Check the documents in the presence (physical or virtual) of the holder; and
Make clear copies of the documents, retain the copies and record the date on which the check is made.

Employers must check the validity of the documents in the presence of the holder to ensure:

They are genuine
That the person presenting them is the prospective or existing employee
That the photograph and dates of birth are consistent across documents and with the person’s appearance.

In a manual check employers should take all reasonable steps to check validity of the documents If a document turns out to be false, the employer will only be liable if it is “reasonably apparent” that it is false Employers must retain a clear copy of the document for the duration of employment AND for two years after the employment has come to an end
List A documents: (e.g. British or Irish passport; proof of ILR) statutory excuse is for entire employment
List B Group 1 documents: (e.g. current passport showing time-limited right to work) statutory excuse lasts until the expiry date of the holder’s immigration leave; in order to retain a statutory excuse, employer must undertake follow-up right to work checks before expiry
List B Group 2 documents (e.g. document showing application into EUSS on or before 30 June 2021, e.g. Application Registration Card issued by Home Office stating holder is permitted to take employment in question) give an employer a time-limited statutory excuse for six months only; in order to retain a statutory excuse, employer must undertake follow-up right to work checks
Note that all List B Group 2 documents need additionally to have a Positive Verification Notice from the Home Office Employer Checking Service
List A: no follow-up checks needed
List B Group 1: follow-up needed to retain statutory excuse

If employee has a current Group 1 document, follow up check should use this document, and statutory excuse continues for as long as date shown on document;
If employee has outstanding in-time application, statutory excuse lasts 28 days from expiry date of employee’s permission “ this is to enable you to verify whether the employee has permission to continue working for you”
During this 28-day period employer must contact the Employer Checking Service and receive a Positive Verification Notice; alternatively carry out a Home Office online check to confirm employee continues to have right to undertake the work
If employer receives a Positive Verification Notice the statutory excuse lasts a further six months from the date in the PVN
If employer receives a Negative Verification Notice, the employer’s statutory excuse is terminated and employer should no longer employ the employee.

List B Group 2: follow-up needed to retain statutory excuse Employer must contact the Employer Checking Service within six months and receive another Positive Verification Notice. That PVN will only last six months from the date in the PVN. Employer needs to check again within six months.
Since 6 April 2022 employers can use Identity Document Validation Technology (IDVT) via the services of an IDSP to complete digital identity verification element of right to work checks but only for those who hold British and Irish valid passport (or Irish ID card) Provides a continuous statutory excuse to the employer
But only as long as employer reasonably believes that the IDSP carried out their checks in accordance with guidance set out at Part 2 of the statutory code
Employers need to check that the IDVT output is consistent with the employee details and retain a clear copy of the IDVT identity check for two years after end of employment.
People with eVisa, Biometric Residence Card, Biometric Residence Permit, Frontier Worker Permit, are only able to evidence their right to work using the Home Office online checking service.
Employers must:

access the Home Office online right to work checking service
be satisfied that the photo is of the employee
retain a clear copy (electronic or hardcopy) for two years beyond end of employment and then destroy it securely If the Home Office online check does not confirm right to work, the employer does not have statutory excuse.

How we can help We are well versed in all the required right to work checks that employers must undertake. We work closely with businesses to ensure that their HR processes are robust and can help to design and audit current right to work checks in the workplace. We will simplify the process for you and help to protect you and your business from any immigration compliance issues.

Article by Natasha Davies nd@kilgannonlaw.co.uk

Extension of Whistleblowing Protection

Thu, 31 Oct 2024 10:34:00 GMT

Extension of whistleblowing protection: A case of public importance: Disclosures made before commencement of employment and disclosures made by charity trustees.
Introduction
Informed employers and employees will already know that it is unlawful for employees or workers to be subject to a detriment or dismissed because they have reported information, that in their reasonable belief, shows or tends to show some form of unlawful conduct, and it is in the public interest to make that disclosure (commonly known as whistleblowing).
Two important developments have arisen in the Employment Appeal Tribunal case of MacLennan v The British Psychological Society [2024] EAT 166 (21 October 2024) Pre-employment disclosures
The EAT has confirmed that a worker is protected from being subjected to a detriment by their current employer for making a protected disclosure to that employer prior to the commencement of their employment.
Extension of protection to volunteer charity trustees
The EAT also considered that a charity trustee (a volunteer) may qualify for whistleblowing protection on the following grounds:
1) to deny a volunteer, charity trustee (here a President-Elect of the Charity) protection, would breach their human right not to be discriminated against (i.e. Article 14 of the European Convention on Human Rights (ECHR)) when exercising their human right to freedom of expression under Article 10 of the ECHR);
2) where the volunteer has been treated less favourably than someone (e.g. a worker or employee) in an analogous situation;
3) where the less favourable treatment relates to whistleblowing; and if so,
4) such less favourable treatment is without reasonable justification (or put the other way round; is the ‘employer’ entitled to treat the volunteer charity trustee less favourably because it is a proportionate means of achieving a legitimate aim?).
Potential breach of Human Rights
The case itself is of public importance. The finding potentially conflicts with the position of the Charity Commission that trustees of charities do not have the benefit of statutory protection for whistleblowing. Rules relating to trustees are governed by the rules of the Charities Act 2011 and governed by the High Court (not Employment Tribunals).
The Employment Appeal Tribunal remitted the case back to the Employment Tribunal to consider the above questions and has suggested that the ET invites the government (Secretary of State) to intervene in the remitted case as well as current interested third parties, the Charity Commission and Protect*.
Section 3(1) of the Human Rights Act 1998 requires courts to interpret legislation purposefully where possible to give effect to ECHR rights. Where a case relates to a point not covered by, or in conflict with, existing legislation and is of considerable public importance, an interested party such as a regulator, a charity or the government may intervene to put forward their arguments. In this case, current law is potentially in breach of ECHR.
Personal comment
This case is interesting as it continues to interpret whistleblowing detriments as a form of unlawful discrimination. It imports the requirement for a comparator for the test of less favourable treatment, which forms part of the test for unlawful discrimination under the Equality Act 2010. It also provides the ‘employer’ with the defence of justification (i.e. where the less favourable treatment is a proportionate means of achieving a legitimate aim) similar to indirect discrimination claims under the Equality Act 2010.
It is also an example of one of the mechanisms that can lead to the creation of new law. If the Employment Tribunal finds in favour of the Claimant, new legislation (e.g. by way of a remedial order to the Charities Act 2011 and an amendment to the Employment Rights Act 1996) may be passed to clarify that volunteer office holders in the Charity Sector are entitled to whistleblowing protection.
This case reflects the view that whistleblowing protection is outdated and in need of reform. On 27 March 2023, the Conservative Government launched its review of the current whistleblowing framework, with the purpose of informing government policies on the development and improvement of the existing whistleblowing regime. Central topics covered were who is covered by the whistleblowing protections, the availability of information and guidance for whistleblowing purposes and how employers and prescribed persons respond to whistleblowing disclosures. It was expected that research would be concluded at the end of 2023. However, legislative changes to the whistleblowing framework appear to have been deprioritised for the time being. *Protect is a charity concerned with climate change and preventing environmental damage. In Autumn 2023 it published a practical environmental whistleblowing toolkit to help employees and workers understand their rights when raising environmental concerns in the workplace. Environmental-Whistleblowing-Toolkit.pdf

Article by Louise Maynard lm@kilgannonlaw.co.uk

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 31.10.24

Kilgannon and Partners Champion a New Era of Flexible Working

Tue, 08 Oct 2024 13:18:00 GMT

Kilgannon and Partners Champion a New Era of Flexible Working

At Kilgannon and Partners, we are proud to support the movement towards more flexible working arrangements, as emphasised in the recent report by Pregnant Then Screwed . This groundbreaking report sheds light on the transformative impact flexible working can have on employees, employers, and society as a whole. Why Flexible Working Matters The traditional 9-to-5 work model is evolving. Flexible working not only accommodates the diverse needs of today's workforce but also brings numerous benefits:

Enhances Employee Wellbeing: Flexibility allows individuals to balance professional responsibilities with personal commitments, reducing stress and burnout.
Promotes Gender Equality: By supporting flexible schedules, we can help close the gender pay gap and support working parents, particularly mothers returning to the workforce.
Boosts Productivity: Employees who have control over their work patterns often exhibit increased motivation and efficiency.
Attracts and Retains Talent: Offering flexible options makes companies more attractive to top talent seeking work-life balance.

Our Approach to Flexible Working Kilgannon and Partners recognises the importance of adapting to the changing work landscape and has seen firsthand the benefits described above. Join the Movement We encourage our clients, partners, and peers to read the full report by Pregnant Then Screwed here and consider how flexible working can benefit your teams and organisations. Together, we can foster a more inclusive, productive, and happier workforce.

Article by Kilgannon & Partners mw@kilgannonlaw.co.uk

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 09.10.24

Tribunal Winning Strategies for Defending Against Unfair Dismissal Claims

Sun, 11 Aug 2024 13:18:00 GMT

Tribunal Winning Strategies for Defending Against Unfair Dismissal Claims Unfair dismissal claims are among the most common types of cases brought before employment tribunals. Defending these claims effectively requires careful strategy, meticulous preparation, and a strong understanding of the legal complexities involved. This article outlines key strategies for UK employers to maximise their chances of success in unfair dismissal cases.
1. Early Intervention and Legal Advice

Take Immediate Action: Seek expert advice from an employment law solicitor as soon as you become aware of a potential unfair dismissal claim. Early intervention is crucial for understanding the legal arguments and building your defence.
Investigate Thoroughly: Conduct a prompt and thorough internal investigation of the circumstances leading to the dismissal. Gather all relevant evidence and documentation, and secure witness statements where appropriate.

2. Understand the Legal Test for Unfair Dismissal To succeed, the claimant must prove that they were dismissed. The employer must then establish the reason for the dismissal and that the employer had one of the five potentially fair reasons for dismissal: Conduct, Capability, Redundancy, Statutory illegality, or "Some Other Substantial Reason" (SOSR). The tribunal will then decide whether the dismissal was fair in all the circumstances including whether it was procedurally unfair, and/or whether the employer’s decision to dismiss fell within the "band of reasonable responses" that a reasonable employer could take in the circumstances.
3. Strategies for Building a Strong Defence

Procedural Fairness: Demonstrate that you followed fair procedures, aligning with the ACAS Code of Practice on Disciplinary and Grievance Procedures. Document each step of the disciplinary process, including warnings, meetings, and the employee's right to be accompanied.
Substantive Fairness: Show that the reason for dismissal was genuine, proportionate, and within the "band of reasonable responses" an employer could take in the circumstances.
Mitigating Factors: Highlight steps taken to assist the employee in improving performance (if capability-related) or attempts to find alternative employment within your organisation (if redundancy-related).
Consistency: Demonstrate that you have applied rules and procedures consistently across your workforce, avoiding any appearance of discrimination or unfair treatment.

4. ACAS Early Conciliation

Engage Meaningfully: Use Early Conciliation as an opportunity to explore potential settlement options, but also to understand the strength of the claimant's case and potentially identify weaknesses that can be exploited at the tribunal.

5. Preparing for the Tribunal Hearing

Compelling Witness Evidence: Choose witnesses who can provide clear, factual accounts to support your defence. Prepare them thoroughly, including potential cross-examination questions.
Strong Documentation: Organise all relevant documentation in a chronological and easily accessible manner. This includes employment contracts, performance records, disciplinary notes, and company policies.
Effective Representation: An experienced employment law solicitor can expertly present your case, navigate procedural complexities, and challenge the claimant's evidence.

Key Takeaways

Preparation is Essential: A well-prepared, proactive defence is far more likely to be successful than a reactive one.
Documentation and Consistency Matter: Clear records demonstrating fair processes and consistent decision-making are often persuasive in tribunal cases.
Seek Expert Advice: Don't underestimate the value of specialist legal counsel in navigating the complexities of an unfair dismissal claim.

Additional Considerations

Settlement Options: Explore the possibility of settlement throughout the process, carefully weighing the potential risks and costs against a satisfactory resolution.
Cost Implications: Be aware of the potential legal costs and the possibility of the tribunal awarding costs against you if your defence is unsuccessful.

Article by Marianne Wright mw@kilgannonlaw.co.uk

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 11.08.24

The 4-Day Work Week: Is it the Future for UK Businesses?

Sun, 11 Aug 2024 13:00:00 GMT

The 4-Day Work Week: Is it the Future for UK Businesses? The concept of a 4-day work week—where employees work the same number of hours but compressed into four days instead of five—has been gaining momentum globally. With a large-scale UK trials showing overwhelmingly positive results, many businesses are pondering if this could be the future of work.
In this article, we briefly consider the potential benefits, challenges, and considerations for UK businesses.
The Case for the 4-Day Work Week

Improved Productivity: Surprisingly, studies often find that reducing work hours can lead to increased or maintained productivity. Employees tend to become more focused, waste less time, and find ways to work more efficiently.
Enhanced Employee Wellbeing: An extra day off per week significantly boosts work-life balance, reduces stress, and improves mental and physical health. This can lead to higher job satisfaction and reduced burnout.
Attracting and Retaining Talent: In a competitive labour market, offering a 4-day work week can be a major differentiator, helping companies attract top talent and retain their best employees.
Environmental Benefits: Reduced commuting and less office energy use can contribute to a smaller carbon footprint.

Potential Challenges

Not Suitable for All Roles: Some jobs requiring continuous coverage or extensive client-facing time may be less adaptable to a 4-day work week structure.
Maintaining Customer Service: Businesses need to ensure that customer needs are still being met effectively within the compressed week. This might involve staggered schedules or shift adjustments.
Potential for Increased Work Intensity: If not managed carefully, employees could feel pressure to cram the same amount of work into fewer days, leading to increased stress.
Implementation Costs: There may be some upfront costs in adapting systems and schedules to the new model.

The UK Success Story The large-scale UK trial of the 4-day work week offered compelling results. Of the participating companies:

92% decided to continue with the 4-day work week
56% reported an increase in productivity
15% reported no change in productivity
Employee wellbeing scores improved significantly across areas like stress, burnout, fatigue, and sleep quality

Considerations for UK Businesses

Trial and Evaluate: Before making a permanent switch, consider running a pilot program within your organisation to assess the impact.
Clear Communication and Planning: Meticulous planning is essential to ensure smooth workflow transitions and maintain service standards.
Focus on Outcomes, Not Hours: Emphasize achieving targets and deliverables rather than simply clocking in hours.
Invest in Management Training: Managers need support in adapting their leadership styles and ensuring equitable work distribution.

Is It the Future? While the 4-day work week might not be a universal fit for all businesses, the evidence suggests it holds great promise for many industries and roles. As workplace preferences and technology evolve, the 4-day week offers a compelling vision of a work world that prioritizes employee wellbeing, productivity, and sustainability.

Article by Yeing-Lang Chong ylc@kilgannonlaw.co.uk

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 11.08.24

Labors target to modernise the world of work by promising to introduce legislation within 100 days

Mon, 05 Aug 2024 11:26:00 GMT

The Labour Government has set itself a big target to modernise the world of work by promising to introduce legislation within 100 days of entering government.
To be fair, Labour has a springboard by the recently departed Conservatives’ own initiatives to modernise the world of work. Draft legislation is already going through parliament in relation to several of the promises made by Labour, albeit some of them in a different form. This includes:

One category of worker to give more people protection from unfair dismissal

Draft legislation to create one category of ‘worker’ for employees and workers is already making its way through parliament. The Bill had its first reading in the House of Lords on 6 December 2023. However, the draft order was not approved before the general election.

Banning Zero Hours Contracts

In September 2024, new legislation is expected to come into force including giving zero hours workers (and potentially short hours workers) after 26 weeks of service, a new right to request predictability in their work pattern relating to hours, days and time worked and the length of their contact. Labour have pledged that anyone working regular hours for twelve weeks or more will gain the right to a regular contract to reflect the hours normally worked.

Putting an end to Fire and Rehire

In relation to fire and rehire (or technically dismissal and re-engagement on less favourable terms), a new ACAS Code of Practice came into force in mid July 2024.
Labour has said the new rules do not go far enough and plans to impose a strengthened version as soon as it can

Enhanced rights to flexible working – a day one right. In respect of enhanced rights relating to flexible working, since April 2024:

Employees already have the right to make a flexible working request from day one
Employees may make two requests within every 12 month period
The Employer must respond within two months of receiving a request and must meet with employees to discuss the reason for any rejection and to explore alternatives.
A revised ACAS Code of Practice on flexible working is in force.

Labour has pledged that employers will be required to accommodate such a request as far as is reasonable, with government support for small and medium-sized businesses, although we do not yet know the detail.
There will be a new right to bereavement leave

Draft legislation is already making its way through parliament to enable bereaved fathers and partners from day one of employment to take 52 weeks’ paternity leave from the death of a child’s mother (or adoptive parent during the first year of their child’s life). The Bill received Royal Assent on 24 May 2024 becoming the Paternity leave (Bereavement) Act 2024. Regulations are needed to bring the act into force.

Shared parental leave will be revised Legislation is already planned to come into force by 5 April 2025 to:

Provide the right to statutory neonatal care leave (expected to be capped at 12 weeks) for employees with a parental or other personal relationship with children receiving neonatal care; and
Provide pay during statutory neonatal care leave (expected to be at the statutory prescribed rate or, if lower, 90% of the employee’s average weekly earnings).

Protection against sexual harassment in the workplace On 26 October 2024, legislation comes into force to compel employers to take reasonable steps to prevent sexual harassment of employees during the course of their employment. The government stopped short of placing a positive duty on employers to protect employees from sexual harassment during the course of their employment by third parties. Can/will Labour seek to implement legislation placing on employers a positive duty to prevent third party harassment?

Some of the other proposed new changes are:

Protection for remote workers – there will be a new right to ‘switch off’.
Enhanced protection against unfair dismissal – the right to claim unfair dismissal will become a day one right for ‘workers’.
Extending time limits to bring tribunal claims to six months.
Removing the caps on compensation for unfair dismissal
It will become unlawful to dismiss a pregnant woman for six months after her return to work, except in specific circumstances
Modernise and enhance Trade Union Legislation – Labour plans, amongst other things, to repeal legislation passed by the Conservatives in order to give trade unions the freedom to organise, represent and negotiate on behalf of their workers.
To activate the dormant protection to prevent unlawful discrimination on the grounds of ‘socio-economic’ characteristics in the Equality Act 2010. This is perhaps the biggest challenge and change, however, it will be limited to public bodies and will not apply to the private sector.

It’s a tall order to introduce new legislation in respect of all the above by 30 September 2024 and it will be interesting to check in with Labour’s proposals on that date and to see which of the changes it prioritises.
Ultimately, this is good news for employees, as it will give them greater protection and rights.

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 04.08.2024

Labour's Employment Law Reform: What Employers Need to Know

Mon, 22 Jul 2024 14:59:00 GMT

During the election, Labour pledged to initiate substantial reforms to UK employment law within the first 100 days of taking office. While these changes will likely be proposed quickly, the process to enact them into law will take time. This article outlines the proposed reforms from Labour’s 2024 manifesto and their "Plan to Make Work Pay: Delivering a New Deal for Working People," providing an overview of what UK employers can expect.
Employment Law Reforms: Timeline and Expectations
When Will Reforms Take Effect?
Labour’s plan to introduce employment legislation within 100 days is ambitious, but significant changes are unlikely to materialise immediately. Quick adjustments, like modifying the Low Pay Commission’s remit, might occur soon. However, most reforms require approval as primary legislation, a process involving both Houses of Parliament, which is time-consuming. Secondary legislation to detail reforms will also take time, and Labour’s commitment to business consultations means employers will have ample opportunity to provide input and prepare.

Key Proposed Reforms
Basic Rights and Employment Tribunals

Introduce day-one basic individual rights for all workers, eliminating the qualifying period for claims such as parental leave, sick pay, and unfair dismissal.
Extend the employment tribunal claim window from 3 to 6 months.
Implement a “right to switch off” similar to models in Ireland and Belgium.
Enable collective grievances through Acas.
Strengthen statutory sick pay by removing the lower earnings limit and waiting period.
Require consultation and negotiation before introducing surveillance technologies.
Establish a single enforcement body to tackle workplace exploitation.
Ban unpaid internships unless part of educational or training courses.
Consider moving towards a single status of “worker”.

Sexual Harassment, Whistleblowing, Equality, and Discrimination

Enhance whistleblower protections, especially for women reporting sexual harassment.
Introduce a Race Equality Act to ensure equal pay for Black, Asian, and ethnic minority individuals and strengthen dual discrimination protections.
Create a right to equal pay for disabled people.
Mandate disability and ethnicity pay gap reporting for employers with over 250 staff.
Strengthen employer duties to prevent sexual harassment.
Prohibit dismissing women within six months of returning from maternity leave, except in specific cases.
Require large employers to develop Menopause Action Plans.
Continue supporting single-sex exceptions in the Equality Act 2010.
Enforce the socio-economic duty for public bodies and extend the Public Sector Equality Duty.

Family-Friendly Rights

Review the introduction of paid carer’s leave (unpaid carer’s leave was introduced in April 2024)
Ensure parental leave is a day-one right and review the system within the first year.
Introduce bereavement leave for all workers.

Contracts and Wages

Implement a flat rate minimum wage reflecting the cost of living for all ages.
Ban exploitative zero-hours contracts and ensure contracts reflect regular working hours based on a 12-week reference period.
Guarantee reasonable notice for shift changes and compensate for short-notice cancellations.
End 'fire and rehire' practices with effective remedies and a statutory code of practice.
Make flexible working the default from day one, accommodating school terms where possible.
Ensure hospitality workers receive and control their tips.

Trade Unions and Health & Safety

Inform all new employees of their right to join a union and regularly remind all staff.
Update trade union laws to remove activity restrictions.
Allow secure electronic balloting.
Simplify union recognition processes and reduce recognition thresholds.
Modernise anti-blacklisting laws and provide sufficient facilities time for union reps.
Allow unions regulated access to workplaces for recruitment and organisation.
Introduce sectoral collective bargaining in adult social care and assess its benefits for other sectors.
Update health and safety legislation and guidance.

Redundancy and TUPE

Require collective consultation on large-scale redundancies across the entire business.
Strengthen rights and protections for workers during TUPE processes.

Although previously pledged, Labour has not mentioned removing statutory compensation caps in employment tribunals or extending maternity and paternity leave.
Business Immigration Reforms: Timeline and Expectations
When Will Reforms Take Effect?
Labour’s business immigration proposals are not yet clear. Their focus on reducing net migration through a skills strategy will take time to implement effectively.
Key Proposed Reforms

Reduce net migration through visa restrictions linked to skills policy.
Require employers to create “skills improvement plans” for sectors with high skilled worker visa applications.
Develop workforce and training plans for sectors like health and social care to reduce reliance on foreign workers.
Ban employers who violate immigration or employment laws from hiring abroad.
Strengthen the Migration Advisory Committee and establish a collaborative framework with UK skills bodies.

Labour has not commented on the review of the graduate visa route or visa application fees and has no plans for a Youth Mobility Scheme with the EU. They will ask the Migration Advisory Committee to review changes to minimum salary requirements.

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 22.07.2024

Top Employee Rights Protected by UK Staff Handbooks

Sat, 22 Jun 2024 20:56:00 GMT

Introduction Staff handbooks in the UK serve as essential documents that not only communicate company policies and procedures but also play a crucial role in safeguarding the rights of employees. These rights are enshrined in employment law and are protected by staff handbooks to ensure a fair and lawful work environment. In this article, we will explore some of the top employee rights protected by UK staff handbooks.
1. Equal Opportunities UK staff handbooks typically include policies promoting equal opportunities. These policies are designed to prevent discrimination based on various protected characteristics, such as age, gender, race, religion, disability, and sexual orientation. By outlining clear equal opportunities policies, staff handbooks help ensure that all employees are treated fairly and without prejudice.
2. Health and Safety Employee safety is a fundamental right protected by staff handbooks. UK employment law mandates that employers provide a safe and healthy work environment for their employees. Staff handbooks contain policies and procedures related to health and safety, including guidelines on reporting accidents, first aid measures, and emergency evacuation protocols. These policies are essential for safeguarding employees' physical well-being.
3. Terms and Conditions of Employment Staff handbooks often include detailed information on the terms and conditions of employment, such as employment status (e.g., full-time, part-time), probationary periods, hours of work, salary, benefits, and overtime policies. By clearly defining these terms, staff handbooks protect employees' rights and provide transparency in employment agreements.
4. Leave Entitlements Leave entitlements are a critical aspect of employment rights. UK staff handbooks outline various types of leave, including annual leave, public and bank holidays, maternity and paternity leave, parental leave, and sick leave. These policies ensure that employees are aware of their rights regarding time off work and how to request leave when needed.
5. Data Protection and Privacy In an era of increasing data privacy concerns, staff handbooks play a vital role in safeguarding employees' data protection rights. These documents include policies that detail how employee data is collected, stored, and used in compliance with the General Data Protection Regulation (GDPR) and the Data Protection Act 2018.
6. Disciplinary and Grievance Procedures Staff handbooks contain guidelines for addressing disciplinary matters and grievances. These procedures ensure that employees have the right to fair treatment when facing disciplinary actions and have a structured process to voice their concerns or complaints.
7. Flexible Working Rights The right to request flexible working arrangements is protected by law in the UK. Staff handbooks may include policies related to flexible working, outlining the process for employees to request changes to their working hours or patterns to achieve better work-life balance.
8. Employee Rights During Maternity, Paternity, and Adoption Leave Staff handbooks detail the rights and entitlements of employees who are on maternity, paternity, or adoption leave, including job security, pay, and the right to return to work after leave.
9. Representation and Consultation Rights Some staff handbooks may include information on employees' rights to be represented by trade unions or employee representatives in workplace consultations and negotiations, in accordance with UK labour laws. 10. Termination Procedures In the event of employment termination, staff handbooks specify the procedures and notice periods for both employers and employees. These procedures protect employees' rights by ensuring that they receive due notice and appropriate termination benefits.
Conclusion UK staff handbooks are invaluable documents that serve to protect and uphold the rights of employees. By clearly outlining company policies, procedures, and legal obligations, staff handbooks create a framework for a fair and transparent working environment. Employers should regularly review and update their staff handbooks to ensure they remain compliant with evolving employment laws, providing employees with the confidence that their rights are protected in the workplace.

Article by Marianne Wright mw@kilgannonlaw.co.uk

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 22.06.2024

Health and Safety Policies in Staff Handbooks: Ensuring Employee Well being

Sat, 22 Jun 2024 20:43:00 GMT

Introduction The health and safety of employees is a paramount concern for employers in the UK. Providing a safe and healthy work environment is not only a legal obligation but also an ethical responsibility. To achieve this goal, employers often include comprehensive health and safety policies in their staff handbooks and, if the employer employs 5 or more people, it must have a written health & safety policy statement). In this article, we will delve into the importance of addressing health and safety in staff handbooks and how these policies help ensure employee well-being.
1. Legal and Moral Imperative Ensuring health and safety at work is not just a legal requirement but also a moral imperative. The Health and Safety at Work Act 1974 places a legal duty on employers to protect the health, safety, and welfare of their employees. This includes providing safe premises, equipment, and systems of work, as well as appropriate information, instruction, training, and supervision.
2. Creating a Culture of Safety Staff handbooks are an effective tool for instilling a culture of safety within an organisation. By including health and safety policies, employers communicate their commitment to creating a workplace where employee wellbeing is a top priority. This helps establish a culture where employees are empowered to identify and address safety concerns.
3. Clarity on Roles and Responsibilities Health and safety policies in staff handbooks clarify the roles and responsibilities of both employers and employees. Employees need to understand their obligations in terms of following safety procedures, reporting hazards, and using protective equipment. Employers, in turn, are responsible for providing a safe working environment and the necessary resources for safety.
4. Reporting Procedures Staff handbooks should detail clear reporting procedures for accidents, incidents, and near misses. Employees should know how to report these events, to whom, and within what timeframe. Reporting procedures not only facilitate the immediate resolution of safety issues but also contribute to long-term risk assessment and mitigation. 5. Risk Assessments Incorporate information on risk assessments in the health and safety policies section. Explain how risk assessments are conducted, who is responsible for them, and how the findings are used to improve workplace safety. Encourage employees to participate in identifying potential hazards. 6. Emergency Procedures Emergency procedures are a critical aspect of health and safety policies. Staff handbooks should provide guidance on what to do in case of fire, medical emergencies, or other crises. Include evacuation plans, assembly points, and contact information for emergency services. 7. First Aid and Medical Support Outline the availability of first aid facilities and personnel within the workplace. Specify the location of first aid kits and the identity of designated first aiders. Provide guidance on how employees should request medical assistance when needed.
8. Training and Awareness Health and safety policies should emphasise the importance of training and awareness. Explain the types of safety training employees may receive and encourage their active participation. Regular training ensures that employees are equipped to respond effectively to safety-related situations. 9. Personal Protective Equipment (PPE) If applicable to your workplace, detail the requirements for using PPE. Explain when and how to use protective equipment, such as helmets, gloves, or safety goggles. Ensure that employees understand the necessity of PPE in safeguarding their well-being. 10. Continuous Improvement Promote a culture of continuous improvement in health and safety. Encourage employees to provide feedback and suggestions for enhancing safety practices. Regularly review and update health and safety policies in response to changing risks or legal requirements.
Conclusion Health and safety policies in staff handbooks are a cornerstone of employee well-being. By clearly articulating the company's commitment to safety, explaining roles and responsibilities, and providing guidelines for reporting and emergency procedures, staff handbooks contribute to creating a safer work environment. Employers should regularly review and update these policies to reflect changes in the workplace and evolving legal standards, ensuring that employee well-being remains a top priority.

Article by Marianne Wright mw@kilgannonlaw.co.uk

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 22.06.2024

Employee Benefits and Perks: Addressing Them in Your Staff Handbook

Sat, 22 Jun 2024 20:33:00 GMT

Introduction Employee benefits and perks are an integral part of attracting and retaining top talent in the competitive job market. Generally, benefits must be included in the employee’s principal statement of terms and conditions (often the contract of employment), however, when well-communicated and documented in a staff handbook, they can also serve as a valuable tool for boosting employee morale, engagement, and satisfaction. In this article, we will explore the importance of addressing employee benefits and perks in your staff handbook and provide guidance on how to effectively incorporate them.

1. Start with a Comprehensive Benefits Overview Begin your staff handbook section on employee benefits by providing a comprehensive overview of the benefits and perks your organisation offers. This may include:
- Health and dental insurance - Retirement plans (e.g., pension) - Life and disability insurance - Paid time off (holidays, sick leave) - Flexible working arrangements (if applicable) - Employee assistance programs - Education and training opportunities - Wellness programs - Bonuses or incentives - Any other unique benefits specific to your organisation
Clearly outline the purpose of each benefit and how it aligns with your company's values and goals.
2. Eligibility and Enrollment Specify the eligibility criteria for each benefit. Describe who qualifies for the benefit, whether it's available to full-time, part-time, or temporary employees, and if there are any waiting periods for enrollment. Include information on how employees can enroll in or opt out of each benefit. 3. Contribution and Cost Details Provide details about how benefits are funded. Explain if the company contributes to the cost of benefits, and if so, how much. Outline any employee contributions, such as premium payments for health insurance or retirement plan contributions. Be transparent about any cost-sharing arrangements. 4. Benefit Payment and Timing Clarify how and when employees will receive their benefits. For example, outline the pay schedule for bonuses or incentives, the frequency of retirement plan contributions, and the timing of paid time off accruals. Ensure that employees understand when and how they can expect to receive the benefits they're entitled to.
5. Compliance with Legal Requirements Employers in the UK must comply with various legal requirements related to employee benefits, such as the provision of workplace pensions under the Pensions Act 2008. Ensure that your staff handbook reflects compliance with all relevant employment laws and regulations.
6. Employee Responsibilities Highlight the responsibilities of employees in relation to their benefits. This may include requirements for notifying the employer of life events that could impact benefits (e.g., marriage, childbirth), adhering to company wellness programs, or following procedures for requesting paid time off.
7. Changes and Amendments Explain how changes to benefits will be communicated and implemented. Specify that the company reserves the right to amend or terminate benefits, and outline the notice period employees will receive in such cases.
8. Confidentiality and Data Protection Emphasise the importance of maintaining the confidentiality of personal and sensitive data related to benefits, such as health information. Ensure that your policies align with data protection laws, including the GDPR, and outline how employee data will be handled.
9. Communication and Support Detail how employees can access information about their benefits, who to contact for assistance or inquiries, and where to find relevant documents, such as benefit summaries or enrollment forms. Consider providing contact information for your HR department or benefits administrator.
10. Acknowledgment and Signature Conclude the section on employee benefits by including an acknowledgment and signature page. Require employees to confirm that they have received and understood the information provided in the staff handbook.
Conclusion Effectively addressing employee benefits and perks in your staff handbook is essential for creating a transparent and employee-centric workplace. A well-documented benefits section not only informs employees of their entitlements but also helps employers attract and retain top talent while ensuring compliance with legal requirements. Regularly review and update this section to reflect changes in benefits offerings and legal regulations, and seek legal counsel to ensure your policies align with UK employment laws.

Article by Marianne Wright mw@kilgannonlaw.co.uk

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 22.06.2024

Employee Handbook vs. Employment Contract: Key Differences and Overlaps

Sat, 22 Jun 2024 20:22:00 GMT

Introduction In the realm of employment law in the UK, two essential documents govern the employment relationship: the employee handbook and the employment contract. While they both play critical roles in defining the terms and conditions of employment, they serve distinct purposes and have unique legal implications. In this article, we'll explore the key differences and overlaps between employee handbooks and employment contracts to help both employers and employees better understand their rights and obligations.
Employee Handbook: A Comprehensive Guide An employee handbook, often referred to as a staff handbook, is a comprehensive document created by the employer. Its primary purpose is to communicate company policies, procedures, and expectations to employees. Here are the key characteristics of an employee handbook:
1. General Information: Employee handbooks typically contain general information about the company, its culture, mission, and values. It may also include an introduction to company policies and procedures. 2. Non-Contractual: Employee handbooks are generally non-contractual documents. They do not create legally binding obligations between the employer and the employee. Instead, they serve as guides for employees to understand how the company operates.
3. Policies and Procedures: Employee handbooks cover a wide range of policies and procedures, such as equal opportunities, health and safety, disciplinary procedures, grievance procedures, leave policies, and data protection. These policies are subject to change by the employer. 4. Flexibility: Employers have flexibility in updating and amending policies in the employee handbook to adapt to changing circumstances or legal requirements. 5. Reference Material: The handbook serves as a reference document that employees can consult to better understand company policies and their rights and responsibilities. It is a valuable resource for both new and existing employees.
Employment Contract: A Legally Binding Agreement An employment contract, on the other hand, is a legally binding agreement between the employer and the employee. It outlines the specific terms and conditions of employment, including: 1. Job Role: The employment contract specifies the employee's job title, responsibilities, and duties. 2. Salary and Benefits: Details about compensation, benefits, bonuses, and any other financial arrangements are outlined in the contract.
3. Working Hours: The contract specifies the employee's working hours, including any overtime or on-call requirements. 4. Termination Provisions: Employment contracts often include clauses outlining the conditions under which employment can be terminated, notice periods, and grounds for dismissal. 5. Confidentiality and Non-Compete: Contracts may contain confidentiality agreements and non-compete clauses to protect the employer's interests.
Key Differences and Overlaps While the employee handbook and employment contract serve distinct purposes, there are areas where they may overlap: 1. Incorporation by Reference: Some employment contracts may refer to the employee handbook, stating that certain policies and procedures mentioned in the contract are governed by the handbook.
2. Contractual Policies: If specific policies in the employee handbook are stated in the employment contract as contractual terms, they become legally binding obligations. 3. Variation Clauses: Employment contracts may include variation clauses that allow the employer to make changes to certain terms and conditions, such as salary or benefits, with proper notice. However, these changes should not breach statutory employment rights and the employer should be careful not act in a way that is discriminatory or that could destroy mutual trust and confidence with the employee.
Conclusion In summary, employee handbooks and employment contracts are distinct documents with different purposes and legal implications. An employee handbook serves as a guide to company policies and procedures, while an employment contract is a legally binding agreement that outlines specific terms and conditions of employment. Employers should ensure that these documents are clear, consistent, and compliant with UK employment law to avoid disputes and legal complications. Employees, on the other hand, should carefully review both documents to understand their rights and responsibilities in the workplace. When in doubt, seeking legal advice can help clarify any ambiguities or concerns regarding the contents of these documents.

Article by Marianne Wright mw@kilgannonlaw.co.uk

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 22.06.2024

Updating Your Staff Handbook: How to Stay Compliant with Changing Laws

Sat, 22 Jun 2024 20:03:00 GMT

It is crucial for employers to maintain up-to-date staff handbooks that reflect not only their company policies but also the latest legal requirements. Failure to do so can expose employers to legal risks and potential disputes with employees. This article provides a comprehensive guide on how to update your staff handbook to ensure compliance with ever-changing employment laws in the UK.
1. Regular Reviews and Revisions The key to a compliant staff handbook is regular reviews and revisions. Employment laws in the UK are subject to change, whether due to new legislation or court decisions. Employers should designate a specific schedule for reviewing the handbook, such as annually or whenever significant legal changes occur.
2. Legal Expertise Given the complexity of employment law, it's advisable to seek legal expertise when reviewing and updating your staff handbook. Employment law specialists can help you understand how recent changes may impact your policies and procedures, ensuring that your handbook remains compliant.
3. Equal Opportunities and Anti-Discrimination Begin your review by examining your equal opportunities and anti-discrimination policies. Ensure that they reflect current legislation, such as the Equality Act 2010, which prohibits discrimination based on various protected characteristics. Make any necessary updates to address new developments or rulings in this area.
4. Health and Safety Health and safety regulations are subject to change, especially in response to new workplace risks or public health concerns, such as the COVID-19 pandemic. Review and update your health and safety policies to address these changes and provide clear guidelines for employees.
5. Data Protection and Privacy With the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 in place, it's crucial to have comprehensive data protection and privacy policies. Ensure that your policies align with these regulations and any changes that may have occurred since their implementation.
6. Employment Rights Be vigilant about statutory employment rights. Review and update policies related to annual leave, sick leave, maternity and paternity rights, and other entitlements to ensure they comply with current legal standards.
7. Disciplinary and Grievance Procedures Align your disciplinary and grievance procedures with the Acas Code of Practice on Disciplinary and Grievance Procedures. This code provides guidance on conducting fair and transparent disciplinary and grievance processes, and employment tribunals consider it when assessing related claims.
8. Contractual Implications Review your staff handbook for any language that could inadvertently create contractual obligations. Clearly state that the handbook is not a contract and that policies within it may be subject to change by the employer.
9. Communication and Training Once you've updated the staff handbook, communicate the changes to your employees. Consider conducting training sessions or orientations to ensure employees understand the new policies and procedures.
10. Document Change* Keep records of all changes made to the staff handbook, including the date of each revision and the reason for the change. This documentation can be valuable in demonstrating your commitment to compliance in case of legal disputes.
11. Seek Employee Feedback Encourage employees to provide feedback on the updated handbook. Their input can help identify any areas that require further clarification and ensure that the handbook is user-friendly and understandable.
12. Monitor Ongoing Changes Employment laws continue to evolve, and staying compliant is an ongoing process. Stay informed about legislative updates and be prepared to make further revisions as needed to keep your staff handbook in line with current legal requirements.
Conclusion Updating your staff handbook is not just a matter of compliance; it's a proactive measure to protect your organisation from legal risks and maintain a fair and transparent workplace. By following these steps and seeking legal guidance when necessary, employers can ensure that their staff handbook remains a valuable resource for employees and a tool for achieving and demonstrating legal compliance in the ever-changing landscape of UK employment law.

Article by Marianne Wright mw@kilgannonlaw.co.uk

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 22.06.2024

Social Media and Technology Usage Guidelines in Employee Handbooks

Sat, 22 Jun 2024 19:56:00 GMT

Introduction In today's digital age, social media and technology have become integral parts of both personal and professional life. Employers and employees are navigating a complex landscape where the boundaries between work and personal online activity can sometimes blur. To address these challenges and promote responsible and secure technology usage, employers often incorporate social media and technology usage guidelines into their employee handbooks. In this article, we will explore the importance of such guidelines and provide insights on how to effectively include them in employee handbooks.
1. The Impact of Social Media and Technology The prevalence of social media platforms and digital technologies has transformed how people communicate, share information, and conduct business. While these tools offer numerous benefits, they also present potential risks and challenges for employers, such as data security, productivity, reputation management, and legal compliance.
2. Promoting Responsible Use One of the primary objectives of social media and technology usage guidelines is to promote responsible and ethical use of these tools within the workplace. These guidelines set clear expectations for employees regarding their online behaviour and the use of company-owned devices, networks, and information systems.
3. Protecting Confidential Information Employee handbooks should underscore the importance of safeguarding confidential company information. This includes not sharing sensitive data on social media, recognising the risks of data breaches, and following company policies related to data security.
4. Data Privacy and GDPR Compliance If your organisation processes personal data, it's essential to address data privacy and General Data Protection Regulation (GDPR) compliance in your guidelines. This includes outlining how employees should handle and protect personal data and ensuring that data processing activities are compliant with relevant laws.
5. Social Media Policies Detail your company's social media policies in the employee handbook. Cover topics such as acceptable use of social media during work hours, disclosing affiliations with the company, and the potential consequences of posting harmful or defamatory content about the company or colleagues.
6. Technology Usage Explain the appropriate use of company-provided technology resources, including computers, smartphones, email, and internet access. Set boundaries on personal use during work hours, clarify expectations for cybersecurity practices, and emphasise the importance of not compromising the security of company data.
7. Monitoring and Enforcement Clearly communicate your organisation’s right to monitor technology and social media usage within the confines of the law. Explain how violations of these guidelines will be investigated and the potential disciplinary actions that may be taken in response to breaches.
8. Protecting Intellectual Property Employee handbooks should stress the importance of protecting intellectual property and copyright, both that of the company and third parties. Employees should understand the consequences of unauthorised use or distribution of copyrighted material.
9. Encouraging Professionalism Encourage professionalism in online interactions. Employees should be reminded that their online behaviour, even on personal accounts, can reflect on the company's reputation. Emphasise respectful and considerate communication.
10. Training and Education Consider including provisions for training and ongoing education in your social media and technology usage guidelines. Regular training sessions can help employees stay informed about evolving cybersecurity threats and best practices.
11. Acknowledgment and Consent Conclude the guidelines section by including an acknowledgment and consent page. Require employees to confirm that they have read, understood, and agreed to adhere to the social media and technology usage guidelines outlined in the employee handbook.
Conclusion Social media and technology usage guidelines are essential components of employee handbooks in the digital age. They help protect companies from potential risks and liabilities while promoting responsible and ethical technology usage among employees. By outlining clear expectations, providing education and training, and emphasizing the importance of data security and professionalism, employers can create a workplace culture where technology is used effectively and responsibly. Regularly reviewing and updating these guidelines is crucial to staying current with evolving technology trends and cyber-security threats.

Article by Marianne Wright mw@kilgannonlaw.co.uk

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 22.06.2024

The Role of Staff Handbooks in Promoting Equal Opportunities at Work

Sat, 22 Jun 2024 17:17:00 GMT

Introduction Staff handbooks play a pivotal role in creating a structured and legally compliant working environment. A well-crafted staff handbook serves as an essential document that communicates an organisation's policies, procedures, and expectations to its employees. For UK employers, having a comprehensive staff handbook is not just good practice; it can be a legal necessity. This article explores the significance of staff handbooks and offers guidance to UK employers on creating and maintaining effective handbooks.
1. Legal Obligations One of the primary reasons for having a staff handbook is to meet legal obligations. UK employment law is constantly evolving, and employers are expected to keep up with the changes. A well-structured staff handbook ensures that your organisation's policies and procedures are aligned with current legislation, reducing the risk of legal disputes and employment tribunal claims.
2. Consistency and Fairness A staff handbook provides a consistent framework for addressing workplace issues. It sets out clear expectations and rules for both employers and employees, promoting fairness and transparency. This consistency is crucial when dealing with disciplinary matters, grievances, or disputes, as it helps to demonstrate that employees are treated fairly and equally.
3. Communication of Policies A staff handbook is a central repository for all workplace policies and procedures. It covers a wide range of topics, including: - Equal opportunities - Health and safety - Code of conduct - Disciplinary procedures - Grievance procedures - Leave policies - Data protection and confidentiality By consolidating these policies in one document, employers ensure that employees are aware of and can easily reference company policies, reducing misunderstandings and potential disputes.
4. Onboarding and Training Staff handbooks are invaluable during the onboarding process. New employees can familiarise themselves with the company's culture, values, and expectations quickly. It serves as a training tool and reference guide, helping employees integrate into the organisation smoothly.
5. Risk Mitigation A comprehensive staff handbook is a risk management tool. By clearly outlining policies and procedures, you can mitigate risks associated with employee misconduct, discrimination, or non-compliance with health and safety regulations. It demonstrates your commitment to maintaining a safe and compliant workplace.
6. Customisation and Flexibility Staff handbooks can be tailored to meet the specific needs of your organisation. While there are certain legal requirements, such as having disciplinary and grievance procedures, having a staff handbook offers you the flexibility to include policies and procedures that align with your company's unique culture and values as well as meeting your legal obligations. This allows you to create a handbook that truly reflects your organisation's ethos.
7. Employee Empowerment Staff handbooks empower employees by providing them with knowledge and understanding of their rights and responsibilities. When employees are aware of the policies and procedures in place, they are more likely to follow them, reducing the likelihood of issues arising in the workplace.
8. Conflict Resolution In the event of workplace disputes, having a staff handbook can be a valuable tool. It can serve as evidence that employees were aware of company policies and that the employer followed established procedures. This can be crucial in defending against legal claims.
9. Reputation and Employee Satisfaction A well-structured staff handbook can contribute to a positive workplace culture and employee satisfaction. When employees feel informed, supported, and treated fairly, it enhances your organisation's reputation as an employer of choice. Conclusion In summary, a staff handbook is a fundamental document for UK employers. It can help employers meet their legal requirements, and serve as a communication tool, a risk management strategy, and a means of fostering a positive workplace environment. By investing time and effort into creating and maintaining a comprehensive staff handbook, employers can protect their interests, ensure compliance with the law, and create a workplace that values fairness, transparency, and employee satisfaction. In today's complex employment landscape, a well-crafted staff handbook is not just an option; it's a necessity for responsible and forward-thinking employers in the UK.

Article by Marianne Wright mw@kilgannonlaw.co.uk

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 22.06.2024

The Importance of Staff Handbooks: A Comprehensive Guide for UK Employers

Sat, 22 Jun 2024 17:07:00 GMT

Article by Marianne Wright mw@kilgannonlaw.co.uk

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 22.06.2024

Understanding the Legal Obligations of Employers in Staff Handbook Creation

Sat, 22 Jun 2024 16:55:00 GMT

Introduction Creating a staff handbook is an essential undertaking for employers in the UK. Not only does it serve as a valuable resource for employees, but it also helps employers establish clear guidelines and expectations in the workplace. However, it's crucial for employers to understand that staff handbook creation comes with legal obligations. In this article, we will delve into the legal obligations that UK employers must consider when creating staff handbooks.

1. Equal Opportunities and Anti-Discrimination Policies
One of the most critical legal obligations for employers is the promotion of equal opportunities and the prevention of discrimination in the workplace. UK law prohibits discrimination on various grounds, including age, gender, race, religion, disability, and sexual orientation. Employers are legally required to have robust equal opportunities and anti-discrimination policies in their staff handbooks. These policies should be clear, easily accessible, and consistently enforced.

2. Health and Safety Regulations
Employers have a legal duty to provide a safe and healthy work environment for their employees. Staff handbooks should include comprehensive health and safety policies and procedures. These policies should cover topics such as risk assessments, accident reporting, first aid, and emergency evacuation procedures. Failure to provide adequate health and safety information can lead to legal liability in the event of workplace accidents or injuries.

3. Terms and Conditions of Employment
For the most part, employers are legally obligated to provide employees with written statements of their terms and conditions of employment on or before their start date. Most employers issue this statement in the form of a contract, and there are some matters in respect of which the statement, or contract, can reference the handbook as a supplementary source of information. Ensure that the terms and conditions in the handbook are accurate and up-to-date to comply with this legal requirement.
4. Data Protection and Privacy
With the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 in force, employers must be diligent in handling employee data. Staff handbooks should include data protection and privacy policies that explain how employee data will be collected, stored, and used. Failure to comply with data protection laws can result in significant fines and legal consequences.

5. Acas Code of Practice
The Advisory, Conciliation, and Arbitration Service (Acas) provides a Code of Practice on Disciplinary and Grievance Procedures. While the code is not legally binding, employment tribunals take it into account when assessing claims related to disciplinary and grievance matters. Employers should ensure that their staff handbooks align with the principles of the Acas Code and follow fair and consistent procedures for disciplinary and grievance matters.
6. Leave Entitlements and Statutory Rights
Employers must adhere to statutory employment rights, including annual leave, sick leave, maternity and paternity leave, and other leave entitlements. Staff handbooks should clearly outline these rights, including how they accrue and are granted. Failure to provide employees with their statutory rights can lead to legal claims.

7. Contractual Implications
While a staff handbook is not a contract, it can have contractual implications if not handled carefully. Make it clear in the handbook that it is not a contract and that policies may be subject to change at the employer's discretion. Additionally, be cautious about making statements in the handbook that could unintentionally create contractual obligations.

Conclusion
Creating a staff handbook is more than just a matter of good practice. By understanding and adhering to their legal obligations, UK employers can create staff handbooks that not only promote a fair and transparent workplace but also mitigate legal risks. It's essential to regularly review and update staff handbooks to ensure they remain compliant with evolving employment laws and regulations, seeking legal guidance when necessary to avoid potential legal issues in the future.

Article by Marianne Wright mw@kilgannonlaw.co.uk

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 22.06.2024

Resolving Disputes: Grievance Procedures in Staff Handbooks

Sat, 22 Jun 2024 16:46:00 GMT

Introduction
A grievance is a formal complaint raised by an employee about an issue or concern related to their employment. These issues can range from disputes with colleagues to concerns about working conditions or discrimination. In the UK, employers are legally required to have grievance procedures in place to address and resolve such complaints fairly and efficiently. Staff handbooks play a pivotal role in communicating these procedures to employees. In this article, we will delve into the importance of grievance procedures in staff handbooks and how to effectively incorporate them.

1. The Significance of Grievance Procedures Grievance procedures are essential for maintaining a fair and transparent work environment. They serve several critical purposes:
Conflict Resolution: Grievance procedures provide a structured framework for addressing and resolving disputes between employees, managers, or the employer.
Legal Compliance: Having clear grievance procedures ensures that the organisation complies with employment law, including the Acas Code of Practice on Disciplinary and Grievance Procedures.
Employee Wellbeing: When employees believe their concerns will be heard and addressed, it contributes to a positive workplace culture and fosters employee trust and engagement.
Preventing Escalation: Promptly addressing grievances can prevent minor issues from escalating into larger, more complex problems that could lead to legal disputes.
2. Communicating the Grievance Procedures Staff handbooks are an effective medium for communicating the organisation’s grievance procedures. Include a dedicated section that outlines the steps employees should take when they wish to raise a grievance. Ensure that the language used is clear, concise, and easily understandable to all employees.
3. Step-by-Step Process Detail a step-by-step process for raising and addressing grievances. This typically includes the following stages:
a. Informal Resolution: Encourage employees to attempt to resolve the issue informally by discussing it with their line manager or a relevant colleague.
b. Formal Grievance: If the issue remains unresolved, provide guidance on how to submit a formal written grievance to HR or a designated grievance officer. Specify the information that should be included in the grievance, such as the nature of the complaint, the individuals involved, and any relevant evidence.
c. Investigation: Explain how the organization will conduct a thorough and impartial investigation into the grievance. This may involve interviews, reviewing documents, and gathering evidence from all parties involved.
d. Grievance Hearing: Describe the process for holding a grievance hearing, which typically includes an opportunity for the employee to present their case and be accompanied by a colleague or trade union representative.
e. Decision and Appeal: Clarify how the organization will reach a decision following the grievance hearing. Employees should be informed of their right to appeal the decision if they are dissatisfied with the outcome.

4. Timeframes Specify the timeframes associated with each stage of the grievance procedure. This ensures that grievances are addressed promptly and that employees have clear expectations about when they can expect a resolution.
5. Confidentiality Emphasise the importance of confidentiality throughout the grievance process. Both the employee raising the grievance and those involved in the investigation should understand the need to protect sensitive information.
6. No Retaliation Make it clear that employees raising grievances should not face retaliation or adverse treatment as a result of doing so. Ensure that the organsiation takes steps to prevent retaliation and to support employees who come forward with complaints.
7. Monitoring and Review Explain that the organisation will monitor the effectiveness of the grievance procedures and regularly review them to ensure they remain compliant with legal requirements and best practices.
Conclusion Grievance procedures are a vital component of staff handbooks in the UK. By providing clear and accessible guidance on how to raise and address grievances, organisations create a fair and transparent work environment that prioritises conflict resolution and employee wellbeing. Regularly reviewing and updating these procedures is essential to ensure they align with current legal standards and continue to effectively serve the needs of both employees and employers.

Article by Marianne Wright mw@kilgannonlaw.co.uk

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 22.06.2024

Creating an Effective Staff Handbook: Best Practices for Employers

Fri, 21 Jun 2024 20:14:00 GMT

Introduction A well-crafted staff handbook is an indispensable tool for employers in the UK. It serves as a comprehensive guide to company policies, procedures, and expectations, providing clarity to both employers and employees. In this article, we will delve into best practices for creating an effective staff handbook that not only communicates essential information but also enhances workplace culture and legal compliance.

1.Customization to Your Organization A one-size-fits-all approach rarely works when it comes to staff handbooks. Tailor your handbook to reflect your company's unique culture, values, and industry-specific requirements. While certain policies are mandatory, such as those related to equal opportunities and health and safety, you have the flexibility to adapt other policies to align with your organisation’s ethos.

2. Legal Compliance Ensure that your staff handbook complies with all relevant UK employment laws and regulations. Employment laws can change, so it's essential to regularly review and update your handbook to remain compliant. Seek legal counsel or HR expertise to confirm that your policies are in line with current legislation.

3. Clear and Accessible Language Avoid legalese and use clear, concise language that employees can easily understand. The goal is to communicate policies effectively to a diverse workforce. If certain legal terms are necessary, provide plain language explanations alongside them.

4. Comprehensive Policies Cover all essential policies and procedures relevant to your organisation. Key areas to include are:
- Equal opportunities and anti-discrimination policies - Health and safety guidelines - Code of conduct and expected employee behaviour - Disciplinary and grievance procedures - Leave policies (annual, sick, maternity, paternity, etc.) - Data protection and privacy policies - Termination procedures - Training and development opportunities

5. Acknowledgment and Receipt Require employees to acknowledge receipt of the staff handbook and confirm their understanding of its contents. This acknowledgment serves as documentation in case of disputes or legal issues.

6. Regular Updates Employment laws evolve, and your company's policies may change over time. Commit to reviewing and updating your staff handbook regularly to reflect these changes. Inform employees of any updates and provide them with the revised handbook.

7. Clarity in Expectations Clearly outline expectations for employee behaviour and performance. This includes dress code, attendance, punctuality, and ethical standards. When expectations are well-defined, it becomes easier to manage performance and address issues when they arise.
8. Conflict Resolution Detail procedures for addressing workplace conflicts, grievances, and disciplinary matters. Ensure that these procedures align with the Acas Code of Practice on Disciplinary and Grievance Procedures, which is a valuable reference for UK employers.

9. Training and Communication Implement training sessions or orientations to introduce new employees to the staff handbook. Encourage questions and discussions to ensure employees understand the policies and procedures. Provide ongoing communication to remind employees of the handbook's importance.

10. Flexibility and Adaptability Recognize that workplace dynamics can change. Your staff handbook should be adaptable to new challenges, such as remote working policies, pandemic-related guidelines, or technological advancements affecting data protection.

11. Seek Legal Guidance Consult with an employment law expert or legal counsel to ensure your staff handbook is legally sound and in line with current regulations. This proactive approach can prevent legal issues down the line.

12. Employee Input and Feedback Involve employees in the process of creating or updating the staff handbook. Their input can help identify areas that require clarification and can enhance employee buy-in and understanding.
Conclusion An effective staff handbook is more than just a compliance document; it is a valuable resource that promotes a positive workplace culture, legal compliance, and clear communication. By following these best practices and customising your staff handbook to your organisation’s needs, you can create a powerful tool that empowers employees, fosters a transparent work environment, and helps protect your company's interests in the ever-changing landscape of UK employment law.

Article by Marianne Wright mw@kilgannonlaw.co.uk

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 21.06.2024

Confidentiality and Data Protection: Compliance Tips for Staff Handbooks

Fri, 21 Jun 2024 19:47:00 GMT

Introduction
In an era of increasing data privacy concerns and evolving regulations, employers in the UK must be vigilant in protecting confidential information and complying with data protection laws. Staff handbooks serve as a valuable tool for communicating confidentiality and data protection policies to employees, ensuring that both the organisation and its workforce understand their roles and responsibilities in safeguarding sensitive data. In this article, we will explore the importance of addressing confidentiality and data protection in staff handbooks and provide compliance tips for employers.

1. Legal Framework
The legal framework for data protection and confidentiality in the UK is primarily governed by the General Data Protection Regulation (GDPR) and the Data Protection Act 2018. Employers are obligated to process personal data lawfully and fairly and to ensure the confidentiality, integrity, and security of that data.

2. Why Include Data Protection and Confidentiality in Staff Handbooks
Including data protection and confidentiality policies in staff handbooks serves several vital purposes:
Legal Compliance: Demonstrates the organisation’s commitment to complying with data protection laws, reducing the risk of non-compliance and potential fines.
Employee Awareness: Ensures that employees are aware of their responsibilities in handling sensitive data and maintaining confidentiality.
Risk Mitigation: Minimises the risk of data breaches and confidentiality breaches by providing clear guidelines and procedures.

3. Confidentiality Policies
Staff handbooks should contain clear and comprehensive confidentiality policies. These policies should cover:
Definition of Confidential Information: Explain what constitutes confidential information within the organisation. This may include customer data, trade secrets, financial information, and other proprietary data.
Handling of Confidential Information: Outline how employees should handle confidential information, including the need for secure storage, access restrictions, and the prohibition of unauthorised sharing.
Data Destruction: Describe procedures for the secure destruction of confidential information when it is no longer needed.
Confidentiality Agreements: If necessary, include references to confidentiality agreements that employees may be required to sign.

4. Data Protection Policies
Data protection policies are crucial in ensuring that employees understand their responsibilities when processing personal data. These policies should cover:
Lawful Processing: Explain that personal data must be processed lawfully, fairly, and transparently, with a legitimate basis for processing.
Data Minimisation: Encourage the principle of data minimisation, ensuring that only necessary data is collected and processed.
Consent: Clarify the conditions under which employee consent may be obtained for processing personal data.
Data Security: Outline security measures and best practices to protect personal data from unauthorised access, disclosure, alteration, or destruction.
Data Subject Rights: Explain the rights of data subjects (employees and others) under the GDPR, including the right to access, rectify, and erase their data.
Data Breach Reporting: Detail the procedures for reporting and managing data breaches, emphasising the importance of prompt reporting to the Data Protection Authority and affected individuals.

5. Training and Awareness
Include a section on employee training and awareness. Describe any mandatory data protection and confidentiality training that employees are required to complete and how often such training should occur.

6. Reporting and Escalation
Establish clear procedures for employees to report breaches of confidentiality and data protection policies. Include contact information for the Data Protection Officer or the person responsible for addressing such reports.

7. Updates and Compliance Monitoring
Explain that the organisation will regularly review and update data protection and confidentiality policies to ensure they remain compliant with evolving regulations and best practices.

8. Acknowledgment and Consent
Conclude the section on data protection and confidentiality by including an acknowledgment and consent page. Require employees to confirm that they have read, understood, and agreed to adhere to the policies outlined in the staff handbook.
Conclusion Data protection and confidentiality are paramount in today's business environment, and staff handbooks play a vital role in ensuring that employees understand their responsibilities in this regard. By incorporating comprehensive policies, providing training and awareness, and emphasising the importance of compliance, employers can create a culture of data protection and confidentiality, reducing the risk of data breaches and maintaining legal compliance. Regularly reviewing and updating these policies is essential to ensure they align with current data protection laws and evolving privacy regulations.

Article by Marianne Wright mw@kilgannonlaw.co.uk

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 21.06.2024

Trades Union Congress unfairly dismiss Darren Lewis and Greg Lepiarz

Tue, 04 Jun 2024 10:08:00 GMT

Click here to read the full judgement

The Tribunal finds that given the “poverty of the investigation” there were not reasonable grounds to dismiss and there were unreasonable failures from an employer which by “its nature should have had a much better grasp of the ACAS Code.”
Gerard Airey of Kilgannon and Partners (who along with Paul Livingston of Outer Temple Chambers represented the Claimants) comments as follows:
“Darren and Greg are staunch trade unionists. They have been put through a dreadful experience, badly let down and unfairly dismissed by the main body that advocates their protection. The findings that the TUC failed to investigate matters properly and breached the ACAS Code are startling as a result. There was a failure to provide evidence, and Mr Nowak should not have been involved in both the dismissal and appeal process. It was alarming that Mr Nowak indicated he reviewed the dismissal letters and allowed the Claimants to be dismissed for breach of a policy that didn’t exist. It is also alarming that there have been significant breaches of the ACAS Code of practice given that Mr Nowak was appointed as a member of the ACAS Council in November 2011. I echo the finding that the TUC should have known better. The TUC have charged Darren and Greg with bringing the TUC into disrepute by their conduct. In fact, it is the TUC’s failings that bring it into disrepute. They cannot on the one hand suggest how employers should carry out processes and then ignore this themselves. That is the definition of bringing the TUC into disrepute and it will be interesting to see if those at fault are now quick to be charged with the same allegation that they levelled at the Claimants. That is a question that the union movement as a whole should now be pressing the TUC to answer. This should not have been allowed to happen and Darren and Greg also should have received more support from their unions, Unite and the GMB. The union movement should also be made aware that Darren and Greg have been banned from TUC premises, thus preventing them from taking part in trade union activities and the TUC have refused to lift this ban. This ban should be lifted immediately and I would urge unionists to support a campaign for the lifting of this ban at the conclusion of this case.” The facts:
Darren Lewis (‘DL’) began employment with Trades Union Congress (‘TUC’) on 17 September 2001. Greg Lepiarz began employment on 4 June 2018. Both are staunch trade unionists. To assist Newham Trades Council (‘NTC’) GL provided a website to the NTC (importantly IT services are not provided by the TUC to Stakeholders such as NTC) . The arrangements for the website were agreed between Ms Dye, NTC General Secretary, and the Claimants. GL required a payment to cover the costs of the website, but not his time spent working on the site as this was costing him money.
It was agreed that there would be a payment of £320 by Ms Dye to GL. Unfortunately, there was some confusion about whether this had in fact been paid and Ms Dye then raised concerns to the TUC about the website and she reported that her relationship with DL and GL had soured after money was requested having initially thought that the website would be free. GL then wrote to Ms Dye to ask for bank details to repay the £320 and the Tribunal found that this email was deemed by the TUC to be a demand for payment, rather than what it was, a request for details to make repayment.
The TUC swiftly started disciplinary proceedings and suspended DL and GL so that they could secure and preserve evidence. In the course of their investigation Ms Dye sent the TUC a differing statement confirming that a set-up fee had been agreed for the website, but rental fees had not been expected. As part of the disciplinary process GL presented documents showing costs incurred in the sum of $720. This evidence was deemed by the TUC to be unclear, but they didn’t ask GL to explain or produce additional supporting evidence.
The TUC charged GL with 1) providing an IT service to NTC and charging them for this service; 2) giving a false impression that the service was being offered by the TUC to trades councils; 3) using his TUC email account to provide the service and communicate.
DL was charged with facilitating GL to provide IT services to NTC, which he charged them for.
DL and GL were dismissed. All charges were upheld and the TUC also dismissed on charges that were not in the allegations, such as the breach of the conflict of interest policy and disclosure of interest policy and bringing the TUC in to disrepute.
The dismissal letter was signed and authorised by Paul Nowak, now TUC General Secretary (Deputy GS at the time). He confirmed that he would have satisfied himself that the policies had been applied fairly and that the letter was competent. He then proceeded to hear the appeal and upheld the dismissal.
The law:
When assessing if a dismissal is fair or unfair the Tribunal will ask itself:

Did the Respondent genuinely believe the Claimant was guilty of the alleged misconduct?
Did the Respondent hold that belief on reasonable grounds?
Did the Respondent carry out a proper and adequate investigation?

The Tribunal must not substitute its view for that of the employer. They must ask if dismissal was in the band of reasonable responses open to a reasonable employer. The objective standards of the reasonable employer must be applied to all aspects of the question of whether an employee was fairly and reasonably dismissed.
The decision:
The Tribunal’s concluded as follows:
The investigation

There was a lack of consistency amongst Ms Dye’s various statements.
A reasonable investigation would have included questions about why Ms Dye believed the work was being offered through the TUC and what emails she had from GL’s TUC email account given that Ms Dye had provided none to the TUC.
Ms Dye’s evidence had not been probed at all by the TUC and they did nothing to look for evidence of innocence as well as evidence of guilt.
A reasonable employer would have recognised that asking more questions of Ms Dye, as the only witness, may well have led to a different interpretation of her evidence. They relied solely on this uncertain evidence.
The disciplinary panel did not have all of Ms Dye’s statements before it. There were collectively concerning differences between the statements which had the potential to undermine her credibility. Ms Dixon accepted that these materials should have been provided and had no real explanation as to why she had not done so.
Mr Rowan said “we were looking for a level of misconduct which fell below our standards and we had enough evidence to prove that this was the case” This attitude led to the substantial flaws identified.
Each failing closed down the possibility that the material evidence of innocence would be found. This rendered the investigation as a whole cursory and unfair.

Reasonable grounds

The evidence didn’t reasonably support a finding that GL had operated for profit/commercial gain. He presented documentation to show costs incurred and it was not reasonable of the TUC to reject that evidence without seeking to understand it properly. GL’s evidence on these issues was perfectly cogent.
Ms Dye’s evidence referred to a set up fee and rental fee and no one clarified with her if she thought GL was charging for his time and why she thought he was.
DL had done a significant amount of apparently free work for Ms Dye in other respects. This made it less inherently improbable that the website would have been produced on a not-for-profit basis.
Given the poverty of the investigation conducted by the TUC, there was not sufficient evidence which a reasonable employer could conclude the website had been provided with a view to commercial gain.
There were no emails sent from GL’s TUC email address and Ms Dye wasn’t asked to produce such emails. No search of GL’s emails was conducted by the TUC.
The invoice was not on TUC paper or made out to the TUC or to be paid to a TUC bank account.
Ms Dye was unclear why she thought the work was being done on behalf of the TUC and the TUC didn’t clarify this with her.
It wasn’t reasonable to find GL had given the false impression that the service was being offered by the TUC. There was also no email search carried out to substantiate a charge that GL had used a TUC email account to provide the services and communicate as a service provider with NTC.
There were not reasonable grounds to conclude that DL brokered and facilitated the provision of IT services for charge.
There were not reasonable grounds to conclude there was a charge over and above the costs of providing the website.
Given that the Respondent had good evidence of DL providing voluntary assistance with Zoom code, flyers and business cards, without further investigation the Respondent could not have reasonable grounds to conclude that he gave a false impression the service was offered by the TUC.

The additional charges

In respect to the breach of the conflict of interest policy, there was not in fact a conflict of interest policy. The relevant parts of the disclosure of interest policy were not put to GL.
There were not reasonable grounds to conclude the GL had brought the TUC into disrepute.

General procedure

The Tribunal agreed with the Claimants’ global submissions that they had not had a fair opportunity to respond to the additional charges and the appeal hearing was not sufficiently comprehensive to rectify the failings at the earlier stage of the procedure.
It was unnecessary and unfair for Mr Nowak to have heard the appeals given the availability of Baroness O’Grady (the General Secretary).
Mr Nowak would not have appeared to be, nor could he properly be considered to be impartial and this aspect of the procedure contributed to the overall unfairness of the dismissals. His appeal compounded that unfairness.
The TUC failed to take account of DL’s long service.
It was difficult to understand the thinking behind the decision not to disclose the statements from Ms Dye. There were some 11 instances of communications from Ms Dye to Ms Dixon not provided to the disciplinary panel or the Claimants. This was material unfairness.
The suspensions were problematic. The main reason was to preserve evidence and the TUC did nothing to obtain that evidence.
There was no review of the suspensions and there was no explanation of that failure. The witnesses used the rational as pretexts without any real analysis of the situation.
There was so much wrong with the investigation that the Tribunal were left in territory where it was simply impossible to conclude with any confidence that a wholly different process might have led to fair decisions to dismiss.

Failure to follow the ACAS Code

There were significant failures with significant effects.
They were unreasonable failures on any view but the more so when considering that this was an employer, which because of its nature should have had a much better grasp of the ACAS Code.
The failures were done with an awareness of what the expected standard was and there were no identifiable mitigating features.
This was a sizeable organisation with a dedicated HR function which should have known better.

The matter is now to be listed to consider the remedy that should be given to the Claimants. For this reason, the Claimants are not commenting until the conclusion of the remedy hearing other than to thank the Tribunal for their careful consideration of their cases and their supporters (including those who donated through CrowdJustice) for keeping them going when times were particularly tough.
For any enquiries about this case please contact Gerard Airey at ga@kilgannonlaw.co.uk

Article by Gerard Airey ga@kilgannonlaw.co.uk

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 04.06.2024

TUPE reform: Who transfers and where do they go?

Wed, 22 May 2024 21:21:00 GMT

It appears that TUPE is, all of a sudden, a fashionable topic for the UK Government (and who would have predicted that?!).
Hot on the heels of changes to information and consultation requirements for smaller businesses and smaller TUPE transfers , it has now launched a consultation exercise on further reforms to the TUPE regime.
It is seeking views on the following proposals:

reaffirming that only employees are protected by TUPE; and
removing the complex obligation to split employees’ contracts between multiple employers where a business is transferred to more than one new business.

The consultation exercise runs until 11 July 2024. This article summarises and analyses the Government’s proposed reforms, which can be reviewed in full here .
TUPE – a brief introduction The UK's Transfer of Undertakings (Protection of Employment) Regulations (or “TUPE”) provide legal protections for employees who are impacted when a business changes hands or a customer decides to outsource, re-tender or bring services in-house.
The main principle is very straightforward. Affected employees transfer to a new employer (usually the purchaser of their previous employer’s business or a new service provider), their existing terms of employment are preserved and they are protected from dismissal because of the transfer.
However, the devil is in the detail. The underlying law is opaque in places and often clashes with the preferred outcomes of those seeking to operate within (or despite) TUPE. The Government is now consulting on two amendments to TUPE, aimed at increasing clarity and reducing complexity.
Proposal 1: TUPE only applies to employees This appears to be stating the obvious. After all, the “PE” in “TUPE” stands for “protection of employment” – the clue is in the title. However, all is not as it seems, when you read the legislation. Under TUPE, an “employee” is defined as:
“any individual who works for another person whether under a contract of service or apprenticeship or otherwise, but does not include anyone who provides services under a contract for services.”
This is different to (and wider than) the definition of employee used elsewhere – for example, in determining who is protected from unfair dismissal and has access to family friendly rights and sick pay.
TUPE is clear that individuals working under a contract of service (i.e. an employment contract) are caught and those who work under a contract for services (i.e. genuinely independent contractors operating their own business) are not. It is those two words “or otherwise” which have caused the problem.
In particular, it is unclear whether individuals who fall into the intermediate (and very catchily-named) category of “limb (b) worker” could be subject to TUPE.
A limb (b) worker is someone who undertakes to perform personally any work for another person who is not a client or customer of their own business undertaking. This could include, for example, a consultant who is not on the payroll, but is contracted to perform work themselves and cannot send a substitute.
Previous employment tribunal decisions have suggested that limb (b) workers should be included in TUPE transfers. However, these are not binding in future cases and there has been no proper consideration of this important issue by the appeal courts.
Therefore, the Government proposes to amend the TUPE definition of “employee” to confirm that limb (b) workers are not protected. This is a very sensible and much needed clarification.
Proposal 2: An employee can only transfer to one new employer For many years, the law was relatively settled on this issue. Even if a business was divided up between different buyers or services were transferred to two (or more) new service providers, a TUPE transfer could only result in an employee transferring to one new employer.
This all changed in 2020, with a landmark decision of the European Court of Justice in a case called Govaerts . In summary, it confirmed that employment contracts could be “split” between two or more transferees, in proportion to the tasks performed. These principles were subsequently applied by the UK’s Employment Appeal Tribunal, in a more recent case.
In light of this, the current position is that an individual may transfer away from their existing employer and be employed on multiple part-time contracts by different (and perhaps competing) transferees. This causes several challenging practical problems for the employees and the various employers involved, for which there are no obvious solutions.
The Government proposes to amend TUPE so that an employee can only transfer to one employer. It would be up to the employers taking over the business or service to agree who should be responsible for each employee’s contract.
Any move away from the bizarre situation created by Govaerts is sensible. However, the current proposal still leaves open the question of what happens if the transferees cannot agree who should take on any given employee. There need to be some underlying legal principles to enable the parties to sort it out amongst themselves – or, in a worst case scenario, that will allow an Employment Tribunal to make a decision.
It would make sense for the previously accepted legal principles to apply. Where a business is divided up between different buyers, an employee would need to be able to show that they were assigned to one of those parts to fall within TUPE. Where a customer outsources or retenders services to two or more new service providers, any assigned employees should transfer to the provider which takes on the majority of the work.
Comment These latest proposals are welcome. It is difficult to argue against changes that make it easier to understand who transfers and where they might transfer. TUPE is complex enough without unnecessary certainties which have long caused headaches for employers and their legal advisors.
The recent activity in reforming TUPE may, in part, be motivated by a desire for some quick wins to show that our domestic employment laws are being released from some of the shackles of EU regulation. TUPE is, after all, derived from the EU Acquired Rights Directive (or “ARD”), although EU law no longer has supremacy here.
There may also be a broader objective in play. If anything, we have a history of gold-plating the minimum requirements of the ARD – from introducing a distinct category of “service provision change” TUPE transfers that are unique to the UK to imposing requirements on transferors to provide employee liability information to transferees at least 28 days before the transfer.
Now, the economic landscape requires a different approach. In a competitive post-Brexit marketplace, there is increased emphasis on boosting innovation and attracting new investment. The proposed reforms will undoubtedly help, by clarifying the existing rules without diluting the basic protections that TUPE offers to employees.
However, I still think there is room to go further.
I have written elsewhere that there is an opportunity to be bolder in reforming the TUPE regime, for the benefit of employers and employees. In particular, it would be good to see a more sensible approach to allowing transferees to harmonise terms and conditions, offer different bonus structures and benefits and rely on post-termination restrictions inherited from former employers.
It has long been acknowledged by the courts that TUPE is not aimed solely at protecting employee rights. Rather, the purpose of the regulations is to ensure a fair balance between the interests of the transferring employees and the transferee. All of the above continue to cause significant practical challenges and could easily be rectified. Dominic Holmes is a Partner at Kilgannon & Partners. He is the author of “A Practical Guide to TUPE and Employee Transfers: Core Legal Principles, Tricky Issues and How It Really Works in Practice” . He writes and presents regularly on TUPE issues.

Article by Dominic Holmes - Partner dh@kilgannonlaw.co.uk 07969 921 491

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 14.05.24

TUPE: How to inform and consult with affected employees

Tue, 14 May 2024 12:42:00 GMT

TUPE: How to inform and consult with affected employees

The UK's Transfer of Undertakings (Protection of Employment) Regulations (or “TUPE”) provide legal protections for employees who are impacted when a business changes hands or a customer decides to outsource, re-tender or bring services in-house.
Unless you are a self-confessed TUPE afficionado like me(!), it can seem a bewildering legal landscape at times. In this article, I explain some important changes to how businesses will be able to engage with affected staff regarding a TUPE transfer.

TUPE: The basics

Where TUPE applies, the employee's contract of employment (together with associated employment rights and liabilities) transfers automatically to the new employer. Save in limited circumstances, they are protected from dismissal or changes to their employment terms that are introduced because of the transfer.
However, before the transfer takes place, TUPE requires both the outgoing and new employer to:

Provide certain minimum information to representatives of its affected employees regarding, for example, when and why the transfer is taking place and the legal, social and economic implications for employees; and

If any “measures” are proposed (which may be anything from a minor administrative issue to a proposal with a more substantial impact, such as anticipated redundancies), the employer must engage in consultation with employee representatives.

Currently, in most cases an employer is required to arrange an election of employee representatives, unless either: (a) they were a “micro business” – employing fewer than 10 employees in total; or (b) there was an existing trade union or consultation body in place whose mandate already covered TUPE issues.
The employee rep election process is often seen by employers as an unnecessary procedural hoop - and in practice, some choose simply to inform and consult directly with employees. This is a calculated risk. Failure to comply with the strict TUPE information and consultation requirements can expose the employer to claims of up to 13 weeks’ pay per employee.
However, TUPE is changing to relax some of the requirements for smaller businesses and transfers impacting a smaller number of employees.

Information and consultation: The new rules

For transfers taking place on or after 1 July 2024:

Small Business Exemption: If your business has fewer than 50 employees, you may consult directly with affected employees, provided no existing employee representatives are in place.

Small Transfer Flexibility: For businesses of any size, if a transfer involves fewer than 10 employees, you can also opt for direct employee consultation (again, assuming no existing employee representatives).

I have previously argued elsewhere that reforms to TUPE should be more radical, given the often confusing or impractical nature of the obligations it imposes on employers. There is currently no indication that further change is on the horizon but this is, at least, a helpful start.
Although an employer should consider whether it may, in fact, be more beneficial to elect representatives (particularly if numerous or wide-ranging “measures” are envisaged), these new exemptions provide greater flexibility. The benefits of the new regime are likely to include, for example:

Streamlining Preparation: Direct consultation can simplify preparations for smaller businesses or smaller transfers, reducing administrative burden.

Enhanced Communication: For some businesses, direct consultation may be a more effective way of communicating what may be unsettling change for valued employees and/or more aligned to its culture, leading to a smoother transfer process.

What next?

If your business anticipates a potential TUPE transfer in the coming months, these changes may be relevant to your planning and the proposed timescale for any transfer.
We can support you with all aspects of the TUPE process, from engaging with affected employees to negotiating TUPE provisions in business sale agreements and services contracts. We can advise on whether TUPE is likely to apply in any given situation and provide you with strategic advice to ensure that your organisation can navigate the relevant legal and commercial considerations and achieve its objectives in any given scenario.
For my sins, I have a written an entire book on the subject – A Practical Guide to TUPE and Employee Transfers . This aims to make TUPE accessible for all those who may come across it (whether legal practitioners, HR professionals or senior managers) and explains how it works in the real world.

Article by Dominic Holmes - Partner dh@kilgannonlaw.co.uk 07969 921 491

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 14.05.24

Gerard Airey and Courtney Step-Marsden succeed in statutory redundancy pay claim

Fri, 22 Mar 2024 11:13:00 GMT

Gerard Airey and Courtney Step-Marsden succeed in statutory redundancy pay claim - The Claimant was entitled to refuse an offer to take a lower-ranked role within a very large project

The facts:

The Claimant, Luke Robinson, was employed by Guys and St Thomas NHS Foundation Trust (‘the Trust’) from 20 June 2011. Initially he was employed as a General Manager, which is a grade 8c role. He was then engaged in a number of fixed-term secondments over a period of 9 years in which he was working as a Programme Director (‘PD’), which is a grade 8d role.
In January 2022 the Claimant confirmed to the Trust that his latest secondment at the Isle of Wight was ending and he asked to meet to discuss roles that may be open to him at the Respondent. As his substantive role was redundant and there were no other roles available, the Claimant was going to be made redundant with effect from 15 June 2022.
On 4 April 2022 an EHR Programme Manager (‘PM’) role (grade 8c) was created. The Claimant was not matched to this role through the Trust’s Interim Organisational Change Policy. He was approached about the role on 27 May 2022 and provided the job description on 30 May 2022. He confirmed to the Trust that he did not believe this to be suitable alternative employment due to a number of factors including loss of status, autonomy and responsibility.
The Trust invited the Claimant to a matching interview on 13 June 2022. The Claimant was unwell and as a result the Trust wrote to him and offered him the role. He refused this as he did not believe it to be suitable and he requested his redundancy pay. The Trust refused to pay this sum and the Claimant therefore brought a claim for his statutory redundancy pay entitlement.

The Law:

In claims relating to refusal of an offer of alternative employment the Tribunal is required to assess if the offer is objectively suitable. If so, it then goes on to consider whether the employee acted subjectively reasonably in rejecting it. That assessment is based upon whether it is suitable to that particular employee. The Tribunal will ask itself, does the job match the person and their skills, aptitudes and experience. The level of responsibility and status involved must be considered.
The Tribunal must judge the decision to reject the offer from the employee’s point of view. The burden of showing the job offer was suitable and the employee’s refusal was unreasonable is on the employer. Each case will be fact sensitive. Generally, a drop in status may make a role unsuitable even if earnings are maintained by way of pay protection. The fact a role is temporary may make it unsuitable and the timing of the offer will also be relevant, although not a decisive factor in terms of whether the employee acted reasonably in refusing an offer made shortly before the termination date.

Conclusion:

The Tribunal found that the Trust failed to follow its own Interim Organisational Change Policy in concluding the role was a suitable one for the Claimant. The Trust applied a test of whether it was “more likely than not” that the roles matched. This was more so a 51% match test rather than a 70% match test, which was the test required by the policy.
The Tribunal also found that the step down from 8d to 8c would inevitably have had some significance. It was held that the Claimant not reporting to the board was also a considerable step down in terms of his place in the hierarchy. The Claimant had significant autonomy in his PD role but in the new role he would be 1 of 8 PMs reporting to a Head of Programmes who was even then 2 steps below the ultimate PD.
The Tribunal noted that the Claimant managed a budget of £25M in his PD role at the Isle of Wight and had line managed staff. Before the Tribunal, there was no evidence of his budgetary responsibility and line management responsibility in the new role. Having considered the situation in the round, the Tribunal held that the role wasn’t objectively suitable. The loss of status, autonomy and responsibility were simply too great to render the role objectively suitable in the circumstances.
The Tribunal went on to hold that even had the role been objectively suitable then it would also have found that the Claimant acted subjectively reasonably in rejecting it. The matching interview was ‘somewhat out of the blue’ scheduled to take place 2 days before his dismissal. Even thought the Claimant was off sick, the offer was then made 2 days before employment was due to terminate, the Claimant had told the Trust he didn’t believe the role would be suitable. The Trust then made no real attempt to engage with him about the question of responsibility, autonomy and status. It was not reasonable to ask the Claimant to take a lower-ranked role within a very large project and become a smaller cog in a very large wheel.

Comment:

The case shows that when looking at suitable alternative employment, it is not as simple as saying that a role a band below will automatically be suitable. The Tribunal will need to scrutinise whether the offer really was suitable taking into account fact-sensitive considerations. The case also highlights the importance of employers complying with their own policies in this type of situation. It is also important to note that the Claimant was not unreasonable in refusing the role given the fact the offer was made only 2 days before his termination.
The full Tribunal judgment can be found here :

Article by Gerard Airey ga@kilgannonlaw.co.uk 07832 371 757

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 22.03.2024

New Partner Announcement - Welcome Dominic Holmes

Wed, 20 Mar 2024 12:06:00 GMT

�55357;�56546; We are delighted to announce that Dominic Holmes has joined us as a Partner. Dom has over 18 years’ experience advising employers and senior executives on strategic employment law issues, including several years leading the highly-regarded employment team at Taylor Vinters.

Further details of his experience can be found in his profile page below:
https://lnkd.in/eRecq3at

We are all very much looking forward to working with Dom.
Dominic Holmes Partner 0800 915 7777 dh@kilgannonlaw.co.uk

Article by Matthew Kilgannon

Marianne Wright Promotion to Senior Associate

Wed, 20 Mar 2024 11:52:00 GMT

�55357;�56546; We are thrilled to celebrate Marianne Wright well-deserved promotion to Senior Associate! We're consistently impressed by her client-first approach, unwavering attention to detail, and the expertise she brings to the team. Congratulations, Marianne!
Marianne Wright Senior Associate 0800 915 7777 mw@kilgannonlaw.co.uk

Article by Matthew Kilgannon

Kilgannon & Partners and Just Employment Solicitors have joined forces

Wed, 20 Mar 2024 11:48:00 GMT

We are excited to be able to share the news that Kilgannon & Partners and Just Employment Solicitors ( www.justemployment.com ), have joined forces. This has enabled us to further strengthen the firm and create one of the largest boutique employment and immigration law firms in the UK.

The merger brings together a wealth of expertise and experience, including Helen Phillips, Director of Just Employment, and Vicky Allum, Senior Associate, who will help bolster the firm’s capabilities and offering.

Article by Matthew Kilgannon

Demystifying GDPR: A Comprehensive Guide for UK Employers

Mon, 26 Feb 2024 14:07:00 GMT

Exploring the Fundamentals and Impact of the General Data Protection Regulation in the Workplace

The General Data Protection Regulation (GDPR) has been a game-changer in the world of data protection, and its implications for employers in the United Kingdom are substantial. In this comprehensive guide, we will demystify GDPR, exploring its fundamental principles and the profound impact it has on the workplace.

Understanding GDPR: What Is It?

GDPR , which came into effect on May 25, 2018, is a robust data protection regulation designed to safeguard individuals' personal data. It has been incorporated into UK law by the Data Protection Act 2018. Its primary aim is to give individuals more control over their personal data and to harmonize data protection laws across the EU.
The Fundamental Principles of GDPR
At its core, GDPR is built upon several fundamental principles that employers in the UK must understand:
1. Lawful Processing / Employee Consent: We do not necessarily recommend relying on consent as the lawful basis for processing data as consent can easily be withdrawn. However, we recommend that employers obtain explicit consent for processing employee data in certain circumstances, such as handling special category data.
2. Data Minimization: Employers should only collect and process data that is necessary for the intended purpose. Collecting excessive data without a legitimate reason is prohibited.
3. Transparency: Employers must provide clear and concise information to employees about how their data will be processed. This includes privacy notices detailing data processing activities.
4. Data Subject Rights: GDPR grants employees various rights, including the right to access, rectify, and erase their data, as well as the right to object to processing.
5. Security and Accountability: Employers are responsible for implementing appropriate security measures to protect employee data. They must also demonstrate accountability by documenting compliance efforts.

The Impact on the Workplace

GDPR significantly impacts the workplace in the UK in various ways:
1. Employee Consent: Employers must obtain explicit consent for processing employee data in certain circumstances. This includes obtaining consent for data processing during recruitment, HR management , and other employment-related activities.
2. Data Security: Employers are obligated to ensure the security of employee data. This includes encrypting sensitive data, implementing access controls, and conducting regular security assessments.
3. Monitoring and Surveillance: Balancing the need for employee monitoring with GDPR compliance can be challenging. Employers must be transparent about monitoring activities and ensure they are proportionate and necessary.
4. Data Protection Impact Assessments (DPIAs) : DPIAs are essential when implementing new processes or technologies that may impact employee data. They help identify and mitigate risks associated with data processing.
5. Employee Training: Comprehensive data protection training programs are crucial. They empower employees to understand their rights and responsibilities under GDPR and contribute to a culture of data protection.
6. Data Breach Response: Employers must have robust procedures for reporting and managing data breaches. Under GDPR, data breaches must be reported to the Information Commissioner's Office (ICO) within 72 hours of discovery.

Striking the Balance Between Monitoring and Compliance

Employee data privacy is a central concern under GDPR, and employers must strike a delicate balance between monitoring and compliance. While it's essential to ensure that employees' personal data is handled securely and in accordance with the law, it's equally vital to respect their privacy rights.
Effective ways to strike this balance include:
1. Transparency: Clearly communicate to employees the purposes and methods of data processing, including any monitoring activities.
2. Consent: Obtain informed and explicit consent from employees when necessary.
3. Data Minimization: Only collect and process data that is strictly necessary for legitimate business purposes.
4. Regular Audits: Conduct regular audits of data processing activities to ensure compliance and proportionality.
5. Privacy by Design: Integrate data protection measures into the design of systems and processes from the outset.
6. Training: Equip employees with the knowledge and tools to protect personal data and understand their rights. Make sure that training is up-to-date.
In conclusion, GDPR has redefined data protection in the UK workplace. Employers must fully grasp the principles and implications of GDPR to ensure compliance and protect employee data privacy. Striking the right balance between monitoring and compliance is not just a legal requirement but also a crucial aspect of fostering trust and a culture of data protection within the organization. . I would be happy to have a chat with you about how we can help you with a GDPR audit, training or handling a data subject access request.

Article by Emily Kidd 01483 464002

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

Disclaimer The above provides a general overview of employment law related issues and is not intended nor construed as providing specific legal advice.
This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice. 26.02.24

We are delighted to have succeeded in an appeal against HSBC Bank PLC for the Claimant, Ms Chevalier-Firescu.

Mon, 12 Feb 2024 14:26:00 GMT

Elaine Banton and Gerard Airey succeed in the Employment Appeal Tribunal (EAT) against HSBC
Background
The Claimant was applying for work with HSBC over a significant period of time from April 2018 until around May 2021. In September 2018, she became aware that she had been unsuccessful for one role (GCB3 vacancy). She continued to seek employment with HSBC, but was not successful.
This, she claims, was due to information gained by HSBC from Barclays against whom she had previously sued for discrimination. She believes that Barclays had impacted her job prospects with HSBC; she claims as a result of discrimination and because of her previous claim.
ET Claims The Claimant launched two claims in the East London Employment Tribunal (ET) against HSBC.
Claim 1 was issued on 1 November 2020 for alleged race and sex discrimination and victimisation by a Manager, RB.
It was alleged that RB intervened in the recruitment process by giving negative feedback based upon information from the Claimant’s former boss at Barclays, who the Claimant had issued Tribunal proceedings against.
It was alleged that there was a failure to disclose key information relating to her primary allegation of sex discrimination regarding her recruitment in 2018.
The race discrimination claim was founded on the basis that the Claimant met with a Mr D on 29 September 2020 and he stated that the reason the Claimant was not recruited was because of feedback from “her old boss at Barclays” received by RB. The Claimant was also told that it may be more difficult to obtain future employment because of connections between Senior Managers in the Equality Derivates teams within HSBC, who knew her old boss, and who, like the Claimant’s old boss were of Lebanese origin.
Claim 2 was issued on 14 May 2021. The allegations being that due to ongoing sex discrimination and victimisation the Claimant wasn’t being recruited by HSBC and had been ‘blacklisted’ and that the Respondent had given poor, unfavourable, informal references about her within the City.
HSBC said that the Claimant was unsuccessful in the application at some point from April to mid-July 2018 and she engineered situations to meet with Senior Managers of HSBC to extract information to pursue litigation. There were no roles after July 2018, so she was not an applicant for employment.
There was an Open Preliminary Hearing (‘OPH’) to consider strike out of the first claim on 22 June 2021. The Claimant was represented by Counsel, but this went part heard and the Claimant ultimately had to represent herself when the hearing resumed on 7 September 2021. In the OPH, Judge Burgher found that the Claimant was not an applicant, the claims were out of time and it wasn’t just and equitable to extend time. Both of the Claimant’s ET claims were struck out by Employment Judge Burgher, even though only the first claim was before the Tribunal in the OPH.
Elaine Banton and Gerard Airey were instructed following the strike out of the claims in order to pursue an appeal.
EAT The Claimant appealed on 4 grounds:
Ground 1 – The Tribunal acted perversely or misdirected itself in law by striking out claim 2 because that was not before the Tribunal at the PH.
Ground 2 – The Tribunal erred and/or misdirected itself in law in its approach to the exercise of discretion to extend time on a just and equitable basis.
Ground 4 – The Tribunal acted perversely and/or misdirected itself in failing to separately adjudicate the race discrimination claim which was brought in time.
Ground 6(1) – The Tribunal erred or was perverse by finding the Claimant brought a claim against Barclays in June 2018 in respect to her non-appointment to the Respondent in July 2018.
The EAT upheld all 4 grounds of appeal. It was held that there was no clarity on the scope of the issues to be determined as the notice of OPH related to the first claim only. There was a second PH listed for the second claim in November later that year. The Claimant was not given 14 days’ notice of the application to strike out the second claim during the first hearing process. It was a serious error to strike out the second claim, including the race claim, without giving notice of the application and allowing a reasonable opportunity for the Claimant to consider that application.
The EAT also held that the Judge impermissibly strayed into conducting a mini-trial of one of the primary issues in the case, which was the reason for non-promotion. The Judge didn’t recognise that disclosure hadn’t taken place in respect to the second claim; the first claim disclosure was limited; and he failed to apply the principles regarding the sensitive nature of discrimination claims. The Judge also failed to identify or evaluate the risk in determining whether to extend time without hearing all the evidence and failed to direct himself correctly.
The fact the Judge concluded that belated disclosure in August 2020 did not change what the Claimant was aware of in 2018 was properly described as perverse. It also wasn’t entirely accurate that the witnesses no longer worked for the Respondent.
The EAT also held that the Judge did not appear to take into consideration the fact that contrary to his statement that the DSARs were responded to in a timely manner, significant and relevant information was missing from the data disclosed, was only disclosed in June 2020, and still, some information has not been provided.
The EAT held that the Judge didn’t appear to consider the manner in which the Respondent had disclosed information, in terms of the impact on the Claimant’s ability to bring her claim, or whether the Respondent was continuing to withhold information which had made it more difficult for her to receive and consider information relevant to her potential claim.
Finally, the EAT accepted the submission that it was perverse of the Judge to find that the Claimant brought a claim against Barclays in June 2018 in respect to her non-appointment to the Respondent in July 2018.
The matter is now to be remitted to a differently constituted Tribunal to decide how next to proceed with the case.

Summary This is an appeal of great interest. There is the procedural aspect that it wasn’t possible to strike out a claim that was not before the Tribunal without disclosure taking place and submissions to be permitted by the person at risk of strike out. There is also the point that the Judge was influenced by matters which could not or should not have been relevant to the exercise of the discretion to extend time. There were also two perversity findings here.
There had been concerns raised by the Claimant about disclosure throughout this process and this was something that the EAT appeared to appreciate. The Tribunal fell into conducting a mini-trial without all of the disclosure and this should be a reminder to Tribunals of the importance of not striking out discrimination claims at an early stage without very good cause. They do need to see the evidence in most cases.
This case will also be very important going forward to understand the process of job applications in the City and in banking and whether or not a form of blacklisting or blocking is effectively taking place. From an employer perspective consideration needs to seriously be given as to references being given about former employees without going through formal referencing processes.

Article by Gerard Airey 0800 915 7777

Combating Harassment: Employer Duties under UK Employment Law Introduction

Mon, 12 Feb 2024 12:42:00 GMT

Creating a safe and respectful work environment is a fundamental aspect of UK employment law. This article explores the legal obligations placed on employers to address workplace harassment , highlighting the measures they should take to promote a culture of respect and protect their employees' mental health.
Understanding Harassment Harassment in the workplace encompass unwelcome behaviour that violates an individual's dignity, creates an intimidating, hostile, degrading, humiliating, or offensive environment, and can have a detrimental impact on mental well-being. Such behaviour can be based on protected characteristics, including race, gender, age, disability, sexual orientation, or religion.
Legal Framework The Equality Act 2010 is the key legislation governing harassment in the workplace. It provides a legal framework for protecting employees from discriminatory behaviour and sets out the employer's responsibility to prevent and address such conduct.
Under the Equality Act 2010, employers have a duty to:

Prevent Harassment: Employers should take proactive steps to prevent harassment in the workplace. This includes implementing clear policies, providing training to employees, and fostering a culture of respect.
Investigate and Address Complaints: Employers are obligated to thoroughly investigate complaints of harassment and take appropriate action to address the issue. This may involve disciplinary measures, counselling, or mediation to resolve conflicts.
Provide a Grievance Procedure: Employers should establish a clear and accessible grievance procedure that allows employees to raise concerns about harassment. This ensures that complaints are addressed promptly and fairly.
Vicarious Liability: Employers can be held vicariously liable for the actions of their employees in cases of harassment. This means that employers may be legally responsible for the misconduct of their employees, even if they were unaware of the behaviour.

Preventing and Addressing Harassment To effectively address and prevent workplace harassment, employers can implement several measures:

Policies and Training: Employers should develop comprehensive anti-harassment and anti-bullying policies that clearly define unacceptable behaviour and provide guidance on reporting procedures. Regular training sessions can also educate employees on their rights and responsibilities.
Promote a Positive Work Culture: Employers should foster a work environment that promotes respect, inclusivity, and open communication. This can be achieved through regular communication, team-building activities, and diversity and inclusion initiatives.
Encourage Reporting: Employers should encourage employees to report incidents of harassment or bullying without fear of reprisal. This can be achieved by assuring confidentiality, providing multiple reporting channels, and offering support throughout the process.
Swift and Appropriate Action: Employers must take prompt and appropriate action when a complaint is made. This involves conducting impartial investigations, providing support to the affected employee, and implementing disciplinary measures when necessary.

Legal Implications Failure to address and prevent workplace harassment can result in legal consequences for employers. Employees who experience harassment may bring claims under the Equality Act 2010, alleging discrimination, harassment, or victimisation. If an employment tribunal finds the employer liable, it can order compensation, issue financial penalties, and damage the employer's reputation.
Conclusion UK employment law places a significant duty on employers to address and prevent workplace harassment, recognising the impact on employees' mental well-being. By implementing robust policies, providing training, fostering a positive work culture, and promptly addressing complaints, employers can create a safe and respectful environment for their employees. Compliance with legal obligations not only protects employees' rights but also contributes to a productive and harmonious workplace where individuals can thrive professionally and maintain their mental health.

Article by Marianne Wright 0800 915 7777

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

Disclaimer The above provides a general overview of employment law related issues and is not intended nor construed as providing specific legal advice.
This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice. 12.02.2024

GDPR Compliance in HR: Best Practices for Safeguarding Employee Data

Tue, 23 Jan 2024 11:32:00 GMT

A Deep Dive into How Human Resources Departments Can Ensure GDPR Compliance in the Workplace

The General Data Protection Regulation (GDPR) revolutionised the way organisations handle personal data, and for Human Resources (HR) departments in the United Kingdom, compliance is paramount. This article provides a comprehensive exploration of best practices for HR to safeguard employee data and ensure GDPR compliance in the workplace.
1. The Significance of GDPR in HR GDPR, which came into effect in May 2018, ushered in a new era of data protection. Its principles apply directly to HR departments, which are custodians of vast amounts of employee data. GDPR in HR revolves around ensuring that the collection, processing, and storage of employee data are done in a lawful, transparent, and secure manner.
2. Data Mapping and Inventory Start with a thorough data mapping exercise. HR should identify all sources of employee data, including CVs, contracts, performance reviews, and emails. Creating a comprehensive data inventory is essential for effective GDPR compliance.
3. Consent and Transparency Obtain clear and informed consent from employees for data processing activities if you are relying on consent as your lawful basis for processing (see below). Transparency is key; HR should communicate why and how data is collected, processed, and stored. Privacy notices should be accessible and easy to understand.
4. Lawful Basis for Processing Identify the lawful basis for processing employee data. HR often relies on contractual necessity, legitimate interests, or legal obligations. These options may be preferable to relying on consent as consent can be withdrawn and may not be seen as “freely given” in an employer / employee relationship. Understanding these bases is crucial to ensure GDPR compliance.
5. Data Minimization Collect only the data that is necessary for HR functions. Avoid excessive data collection. The principle of data minimization requires HR to hold the least amount of data possible to fulfil its purpose.
6. Employee Rights HR should be well-versed in employee rights under GDPR. These include the right to access, rectify, and erase personal data, as well as the right to object to processing. HR should have procedures in place to respond to these requests promptly.
7. Data Security Measures Implement robust data security measures to protect employee data from unauthorized access, breaches, and cyberattacks. Encrypt sensitive data, enforce access controls, and conduct regular security assessments.
8. Data Protection Impact Assessments (DPIAs) DPIAs are essential when HR introduces new data processing activities or technologies. They help identify and mitigate risks to employee data and ensure compliance with GDPR.
9. Employee Training Comprehensive data protection training is vital for HR staff. Training programs should cover GDPR principles, employee rights, data security, and how to handle data subject requests.
10. Vendor and Third-Party Management When HR engages third-party vendors or contractors, ensure they also comply with GDPR standards and breach reporting. Contracts should include data protection clauses and obligations.
11. Breach Response Plan Have a well-defined data breach response plan in place. The person responsible for data protection should be ready to report breaches to the Information Commissioner's Office (ICO) within 72 hours of discovery and inform affected employees.
12. Regular Audits and Compliance Checks Conduct regular audits of HR processes and data handling practices to ensure ongoing compliance with GDPR. Regularly review and update policies and procedures as needed.
13. Legal Consultation Engage legal experts who specialise in GDPR and employment law. They can provide guidance on compliance and help HR navigate complex issues.
14. Retention Periods Ensure that data is only kept for as long as reasonably necessary and have a clear retention period policy in place that is adhered to.
15. Continuous Improvement GDPR compliance is an ongoing process. companies should continually monitor and adapt to changes in regulations, industry standards, and emerging threats.
Conclusion: HR as Guardians of Employee Data HR departments play a pivotal role in GDPR compliance, as they manage and protect employee data. By following best practices and integrating data protection into HR processes, organisations in the UK can create a culture of data privacy, build trust with employees, and ensure GDPR compliance in the workplace. HR, as the guardians of employee data, must lead by example in safeguarding personal information and upholding data protection standards.

Article by Emily Kidd 0800 915 7777

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777 .

Disclaimer The above provides a general overview of employment law related issues and is not intended nor construed as providing specific legal advice.
This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice. 30.01.24

Reasonable Adjustments in the Workplace: Supporting Employees with Mental Health under UK Law

Mon, 22 Jan 2024 11:16:00 GMT

Introduction

Recognising the importance of inclusivity and equal opportunities, UK employment law mandates that employers make reasonable adjustments, where possible, to accommodate those employees who have a disability including those with certain mental health conditions. These adjustments aim to provide support and enable individuals to perform their roles effectively.

This article explores the legal framework surrounding reasonable adjustments, highlighting the obligations placed on employers and the measures they can take to support employees' mental well-being.

Understanding Reasonable Adjustments

Under the Equality Act 2010, employers have a legal duty to make reasonable adjustments for employees who have a disability. Reasonable adjustments include modifications or changes that remove or reduce any disadvantage faced by individuals with disabilities, including those with certain mental health conditions. The objective is to ensure that employees are not put at a substantial disadvantage compared to their non-disabled counterparts.

Examples of Reasonable Adjustments

Employers have a range of options when considering reasonable adjustments for employees with mental health conditions. Some common examples include:

1. Flexible Working Arrangements: This could involve adjusting working hours, allowing part-time or remote working, or implementing flexible start and finish times. These adjustments can provide employees with greater control over their work-life balance and help manage stress or other mental health challenges.

2. Adjusting Workload: Employers may consider redistributing workload, revising targets, or allowing more time to complete tasks. This can alleviate stress and pressure on employees, enabling them to maintain productivity while managing their mental health condition.

3. Providing Additional Support: Employers can offer support mechanisms such as access to counselling services, Employee Assistance Programs (EAPs), or arranging regular check-ins with managers to discuss any concerns or challenges. These measures demonstrate a commitment to supporting employees' mental well-being.

4. Adjusting Workplace Environment: Modifying the physical workplace environment to accommodate employees with mental health conditions is another important consideration. This may include providing quiet spaces for relaxation or concentration, reducing noise levels, or ensuring adequate lighting.

Legal Implications

Failure to make reasonable adjustments for employees with certain mental health conditions can lead to potential claims of disability discrimination. Employees who believe they have been treated less favourably due to their condition or denied reasonable adjustments may file a complaint with an employment tribunal. If a tribunal finds that an employer failed to fulfil its duty to make reasonable adjustments, it can order the employer to pay compensation and make the necessary adjustments going forward.

It is important to note that the concept of "reasonableness" in making adjustments is subjective and depends on various factors such as the size and resources of the employer. Employers must consider the individual circumstances and engage in a meaningful dialogue with employees to determine suitable adjustments.

Conclusion

By implementing various reasonable adjustments in the workplace, employers create a more inclusive and supportive environment. Flexible working arrangements, workload adjustments, additional support mechanisms, and physical workplace modifications are just some examples of the measures that can be taken. Employers should engage in open communication with employees, evaluate individual needs, and consider the reasonableness of proposed adjustments. By meeting their legal obligations and supporting employees' mental well-being, employers foster a positive work culture that values inclusivity and empowers individuals to thrive in their roles.

What is ESG and why does it matter to employers?

Mon, 08 Jan 2024 15:21:00 GMT

What is ESG and why does it matter to employers?

ESG stands for ‘Environmental, Social and Governance’ and is becoming of increasing importance to candidates in their choice of which employers to work for, as well as being of importance to existing employees, customers, investors etc and to the organisation’s overall reputation.

Employees are increasingly expecting their employers to act ethically and responsibly and to be climate conscious. An organisation’s ethical values are important for attracting and retaining talent.

Environmental

Environmental includes the organisation’s impact on the environment, for example manufacturing sustainable products, reducing its own carbon footprint or supporting sustainable commuting by introducing a cycle to work scheme or having a working from home rota to reduce carbon emissions from commuting. Some employers offer paid time off for employees to volunteer for climate related causes.

Social

Social includes how the employer treats its staff, its policies on pay equity and whether it supports the Living Wage, its policies on diversity and inclusion, health and well-being and whistle-blower protection, and also steps it has taken to ensure transparency in its supply chains and identifying modern slavery risks.

Governance

Governance includes how the organisation operates, for example its structure, whether the decisions it makes are ethical and fair, its tax strategy, and its anti-bribery and corruption policies. It also includes the organisation’s compliance with data reporting requirements, such as the gender pay gap.

How can employers improve their ESG credentials?

An employer could consider:

Collecting and reporting diversity data beyond the statutory requirements
Reviewing and updating its family friendly policies and considering, for example, whether to enhance statutory leave and pay
Introducing mental health initiatives, for example trained mental health first aiders in the workplace
Increasing employee engagement on ESG policies and initiatives

In conclusion, we trust that this article has offered you valuable insights and useful information. Please be aware that the contents of this article do not constitute legal advice. For specific guidance tailored to your situation, or if you have any further questions, Marianne Wright is readily available to assist you. You can contact her at 0800 9157777 or via email at hello@kilgannonlaw.co.uk . We welcome your queries and are committed to providing the support and advice you require, ensuring you are well-informed and confident in your decisions.

Is your organisation kinship carer-friendly?

Mon, 08 Jan 2024 15:10:00 GMT

What is kinship care?

Kinship care is where a child is raised in the care of a family member or family friend on a temporary or longer-term basis.

The government has recently published guidance for employers on kinship carers in the workplace. https://www.gov.uk/government/publications/kinship-carers-in-the-workplace-guidance-for-employers

How does being a kinship carer affect employees?

Employees who are kinship carers may face having to leave work permanently or may need to reduce their working hours.

What rights to kinship carers have in the workplace?

Whilst employed kinship carers don’t have specific rights in the workplace, the recent government guidance encourages employers to signpost such employees to their existing entitlements, for example the right to request flexible working, and the right to time off for dependents and to unpaid parental leave.

What should employers be doing?

The guidance contains suggestions for employers who want to become kinship carer-friendly, such as:

creating a kinship carers’ policy or adapting existing policies to explicitly include kinship carers
offering support and paid leave beyond the existing statutory entitlements
promoting an open culture for discussions to take place

What more could employers do?

For employers who want to enhance their Kinship Friendly credentials, the guidance directs them to the following support schemes:

The Kinship charity’s Kinship Friendly Employer scheme, which has Gold, Silver and Bronze Standards https://kinship.org.uk/get-involved/kinship-friendly-employers/

The Fostering Network’s ‘Fostering Friendly’ scheme which helps employers to support kinship foster carers https://www.thefosteringnetwork.org.uk/get-involved/championing-fostering/fostering-friendly

Working Families’ ‘Happy to Talk Flexible Working’ logo and strapline, which employers can use in their adverts for jobs that are suitable for some form of flexible working https://workingfamilies.org.uk/employers/happy-to-talk-flexible-working/

Celebrating Gerard Airey's Recognition in the Legal 500 Rankings

Mon, 08 Jan 2024 14:13:00 GMT

We are thrilled to share some exciting news from Kilgannon & Partners – a remarkable achievement that marks a significant milestone in our journey. Our very own Gerard Airey has been distinguished in this year's Legal 500 rankings, being named as a ‘Next Generation Partner’. This accolade is not just a testament to Gerard’s exceptional skills and dedication but also reflects the high calibre of work we strive for at our firm.

For those who may not be familiar, the Legal 500 is a prestigious and comprehensive guide that ranks the world’s best lawyers and law firms based on in-depth research and feedback from peers and clients. Established over 30 years ago, it offers an annual ranking of law firms and lawyers across multiple practice areas and jurisdictions. Being ranked in the Legal 500 is a significant honour, as it recognizes legal practitioners who have demonstrated excellence in their field.

Gerard's journey to this point has been nothing short of inspiring. He has been involved in numerous high-profile cases, showing a deep understanding of employment law and a relentless commitment to representing the interests of his clients. His expertise in navigating complex legal challenges and his unwavering dedication to his clients have earned him a stellar reputation in the legal community.
It's heartening to see Gerard’s hard work and talent being acknowledged in such a prestigious manner. The title of ‘Next Generation Partner’ is particularly noteworthy. It highlights not only his current achievements but also signals his growing influence and potential in shaping the future of employment law.
Gerard’s recognition in the Legal 500 is a clear indication of his professional excellence and our firm's commitment to providing top-tier legal services. We are proud to have him as a part of our team and look forward to his continued contributions to the legal profession.
As we celebrate this achievement, we are reminded of the importance of perseverance, expertise, and a client-focused approach in the legal field. Gerard's recognition by the Legal 500 serves as an inspiration to all of us, affirming that dedication and hard work truly do pay off in the pursuit of legal excellence.

Employer's guide to employing non-UK workers

Mon, 02 Oct 2023 11:11:00 GMT

EMPLOYING NON-UK WORKERS

For many UK employers, particularly those operating in sectors with a skills shortage, the ability to recruit and retain talent from overseas is imperative to meeting client demand, launching innovative projects and growth.

Unfortunately, for many UK employers and those wishing to establish a branch or subsidiary of their overseas business in the UK, the UK’s post-Brexit landscape presents new challenges to the recruitment of non-UK workers and compliance with UK immigration law.

All UK employers who wish to employ a non-UK national who does not already have permission to work in the UK, including those from the EU, EEA and Switzerland, must first apply for authorisation from the Home Office to do so. This entails the UK business making a Sponsor Licence application and thereafter, maintaining the licence and complying with a raft of sponsor duties.

Applying for a sponsor licence and employing non-UK workers is a considerable undertaking for any UK employer; it presents cost and on-going administrative burdens and if these are not managed correctly, an employer could find themselves exposed to a range of consequences, including suspension or revocation of its sponsor licence, an inability to continue to sponsor non-UK workers or sponsor new workers, significant civil penalties and criminal sanctions and reputational damage.

How we can help you

We will take time to understand your business’ recruitment and workforce needs and provide you with tailored advice and a comprehensive service that will guide you from start to finish of the application process.

Once the Sponsor Licence is in place, we can continue to assist you in planning for your workforce needs and in maintaining compliance with your Sponsor Licence duties. Our Sponsor Licence management services include assistance with navigating and operating the

Sponsorship Management System (as a Level 1 User), ad hoc advice, compliance training and mock audit services to ensure your business is prepared for a Home Office compliance inspection.

Does your business need a UK Sponsor Licence?

To determine whether your UK business needs a Sponsor Licence to meet its recruitment needs, it is important to first understand who has the right to work in the UK:

British citizens have an immediate right to work in the UK with no restrictions.
Irish citizens can live and work in the UK by virtue of the Common Travel Area arrangement (CTA). Under the CTA, British and Irish citizens can move freely and reside in either jurisdiction and enjoy associated rights and privileges, including the right to work without restriction.
Those with Indefinite Leave to Remain (ILR): also known as ‘settlement’ – this gives the holder the right to reside permanently in the UK with no restrictions on their right to work. ILR can be lost if the holder remains outside of the UK for two consecutive years or more.
Those with an existing UK visa: existing UK visa holders may have the right to work in the UK – this will however depend on what type of visa they have, whether they are subject to any conditions / restrictions on their ability to work and the visa’s validity / expiry dates.
EU, EEA and Swiss nationals: those with ‘pre-settled’ or ‘settled’ status under the EU Settlement Scheme (EUSS) have the right to work in the UK without restriction.

EU, EEA and Swiss citizens who have made a valid late application for status under the EU Settlement Scheme and who have been issued with a Certificate of Application will also have a right to work in the UK without restriction while that application is determined.

Newly arriving EU, EEA and Swiss citizens or those who began living in the UK after 31 December 2020, will not qualify for status under the EUSS and will therefore need to obtain another type of UK visa to have the right to work in the UK.

Right to Work Checks and Illegal Working

All UK employers are required to carry out compliant Right to Work Checks on all UK-resident employees before they commence employment, regardless of their nationality or status (this includes British nationals). Those on a visa with a time limited right to work in the UK will also require further checks to be made during the course of their employment.

Failure to conduct a compliant Right to Work Check can leave an employer exposed to a range of civil and criminal sanctions under the illegal working legislation.

As part of our bespoke immigration compliance services, we can provide your business with advice and / or training on how to conduct compliant Right to Work Checks and audit your existing processes.

Should you discover an employee does not have permission to work for you, we can also advise and assist you, helping you to navigate both immigration and employment law considerations.

Applying for and Maintaining a Sponsor Licence: the 7 step process

The 7 main steps that UK employers will need to navigate to obtain and maintain their Sponsor Licence are as follows:

Check if your business is eligible to apply for a Sponsor Licence;
Decide which type(s) of Sponsor Licence your business should apply for and which worker visas your prospective workers will be eligible for;
Decide who will manage the Sponsor Licence and be responsible for your business’ compliance with sponsorship duties;
Apply for your Sponsor Licence online, provide the mandatory supporting documents to the Home Office and pay the Home Office application fee(s);
Apply for / create and assign a Certificate of Sponsorship to each of your prospective workers and pay the Certificate of Sponsorship fee;
Pay the Immigration Skills Charge for each prospective worker (if applicable); and
Comply with your sponsor duties throughout the lifetime of the Sponsor Licence.

Key requirements and considerations

To be eligible to apply for a Sponsor Licence, the following requirements and considerations apply:

The UK entity applying for the Sponsor Licence must be operating or trading in the UK (Expansion Worker Sponsor Licence applications are an exception to this rule). This will evidenced by the types of mandatory documents you will submit with your Sponsor Licence application.
If your business operates in a sector that requires you to be registered, inspected or monitored by a regulatory body to operate lawfully in the UK, you must be able to evidence you are compliant when you apply for a Sponsor Licence.
‘Key personnel’ must be in place to manage the licence before an application is submitted: this requires, at a minimum, at least one senior employee or office holder (e.g. a Director) to be nominated to manage the licence. This person must be resident in the UK and be either a British / Irish national, hold ILR or status under the EUSS.
You must have a robust HR system in place to monitor and track any sponsored employees and ensure ongoing compliance with sponsor duties once the licence is in place. There is no specified type of HR system employers must have, but it should be reliable, effective and sufficient to manage the number of sponsored workers.
Suitability checks: a sponsor has a duty of honesty to the Home Office, they must be dependable, not behaving in a manner that is not conducive to the public good and be complying with UK wide law, including the prevention of illegal working legislation and UK employment law, such as payment of National Minimum Wage, holiday and sickness pay, maximum working hours, health and safety, and trade union and worker rights. Before a Licence is applied for, it may therefore be necessary for an employer to seek employment law advice to ensure its employment contracts and polices are up to date and compliant. Our employment department can assist you with any employment law services required.

All company owners, directors, all key personnel and anyone else who is involved in the day-to-day running of the business must be able pass the Home Office’s suitability checks. These checks include (but are not limited to) whether those individuals have any unspent criminal convictions, whether they have previously breached sponsor duties or immigration law, whether they have been issued any fines for unpaid VAT and whether they are prohibited from becoming a company director.

You must be able to offer a sponsored worker a ‘genuine vacancy’. A genuine vacancy has a defined meaning within the Home Office’s Sponsor guidance and whether this can be met requires careful consideration against a range of factors at the outset of the application process. The Home Office will request employers justify and evidence how they meet the genuine vacancy requirement, particularly where no Resident Labour Market Test (requirement to advertise the role externally) applies. To ensure employers can meet this requirement, there should be careful consideration of the proposed worker’s suitability for role on offer against the job description.

The vacancy on offer must be eligible for sponsorship and must meet the required skill level and salary thresholds, as specified by the Immigration Rules.

· The English language skills and employment status of any proposed worker should be considered at the outset of the application process – this in conjunction with other factors, will determine which worker visas they are eligible for and therefore which type(s) of Sponsor Licence your business should apply for.

We understand that every business requires tailored guidance and advice to navigate these requirements. As part of our consultation process, we will take time to assess your business’ ability to meet these requirements and advise on the available Sponsor Licence and worker visa options to meet your workforce needs in the short and long-term.

We will also explore whether any alternative (unsponsored / personal) immigration visa options are available to your prospective workers. Alternatives to sponsored work visas are an important consideration; they can provide the individual worker with fewer restrictions on their ability to work and for employers, they offer far fewer cost and administrative burdens and free an employer from ongoing sponsorship management duties.

Home Office processing times for a Sponsor Licence application

The standard processing time for applications is 8 weeks. You may however be able to purchase a priority service, reducing the wait time for a decision to 10 working days.

During the processing time, the Home Office may conduct a compliance visit or make enquiries with you to check your business is able to meet the requirements and comply with sponsorship duties. If a compliance visit or further enquiries are made, the decision-making timescale will be extended.

Your application may be refused if you failed to demonstrate you meet all sponsorship requirements and duties.

Home Office fees for making a Sponsor Licence application

There are various Home Office fees that must be paid to apply for a Sponsor Licence and thereafter, to sponsor a worker. These fees vary depending upon the size of the UK business, how long the worker will be sponsored for and whether the business and / or worker wish to make use of any priority services to speed up the standard decision-making timescales.

Please get in touch with us to discuss your business needs and we can provide you with summary of the relevant Home Office fees that will apply.

What happens if your Sponsor Licence application is rejected or refused?

If your sponsor licence application is refused or rejected by the Home Office, this can have a hugely detrimental impact on your business operations and workforce planning. This is why we take great care in ensuring your business meets all of the requirements and understands its compliance duties before an application is submitted.

While there is no right to an appeal or Administrative Review if your sponsor licence application has been refused, other options may be open to you depending on the circumstances and grounds for the Home Office’s decision.

Rejections generally result from applications that are deemed invalid. Rejections are typically for applications that have relatively minor issues, which can easily be rectified by the applicant, for example, by paying the correct application fee. Invalid applications usually have their application fees refunded, allowing you to make a revised application.

Sponsor licence applications are refused where there are more substantial or fundamental issues with the application. Refusals are more problematic for the applicant as the licence application fee will generally not be refunded and you may be subject to a ‘cooling off’ period of 6 to 12 months – during this time you are not permitted to submit a new application.

Your options after receiving a refused sponsor licence application will be determined by the Home Office’s reasons for refusal.

The first option is challenging the licence application refusal by way of an ‘Error Correction Request’. This request can only be made where the decision is a result of a Home Office caseworker error or where relevant supporting documents were submitted but not considered by the Home Office. These requests must be submitted within 14 days. It usually takes up to 28 days thereafter to receive a decision.

The second option to challenge a refusal of an application, where this was arguably unlawful, unreasonable or procedurally improper, is to apply for permission for judicial review of the decision. Judicial review is a process by which a judge reviews the lawfulness of a public body’s decision, examining the way in which the conclusion was reached, rather than evaluating the merits of the decision itself. A Judicial Review is a last resort remedy, it is time consuming to pursue, difficult to succeed with and carries cost risks – you may be liable not only for your own legal costs, but also those of the Home Office if your claim is unsuccessful. As such, even where this option is available to you, it may not necessarily be in your best interests to pursue.

This is a highly complex area that requires specialist guidance. You will also need to act quickly, as judicial review applications must be submitted within 3 months of the date of the refusal decision.

A third option is to resubmit an application that rectifies (if possible) the issues flagged by any refusal. If the Home Office have imposed a cooling-off period, you will need to wait for this to expire before another application can be submitted.

We can advise and assist you in challenging any decision to refuse your sponsor licence application.

Welcome Natasha Davies

Tue, 31 Jan 2023 12:36:00 GMT

Welcome Natasha Davies

We are delighted to announce that Natasha Davies has joined us.
Natasha is an experienced immigration and employment lawyer with a particular specialism in supporting international businesses by providing pragmatic employment/HR advice and in securing visas and Sponsor Licences.
We are very much looking forward to supporting and working with Natasha who brings additional experience and knowledge to Kilgannon & Partners.
As a valued client or friend of the firm, we are sure you will all join us in making Natasha feel very welcome.
Natasha can be contacted on: nd@kilgannonlaw.co.uk / 07908 469 889

Important Legal Update

Tue, 17 Jan 2023 16:35:00 GMT

Important Legal Update - Holiday Pay

Hi all I wanted to let you know of an important legal update about holiday pay. Over the last few months, I have attended several webinars with prominent barristers and, in particular, with the barristers who represented Mrs Brazel in the case of Brazel v Harpur Trust [2022] UKSC 21, a recent supreme court decision about holiday pay. The case decided that all workers are entitled to 5.6 weeks holiday per year. Yes, that is already the legal position but the issue is where the worker does not work the full 46.4 weeks of the year (i.e. 52 weeks less 5.6 weeks holiday). For example, those that work term time only or do seasonal work. It also applies to those who do not work a fixed number of hours each week. Previously, the ACAS guidance has been that we take the 5.6 weeks / 46.4 weeks x 100 and this gives us the magic 12.07% on which some of you base your holiday calculations for atypical workers. However, this has been found to be contrary to the law. In the example of a person who works in a school for, say, 35 weeks per year, if they receive 12.07% of 35 weeks, they are only actually receiving 4.2 weeks holiday pay and not the 5.6 weeks they are entitled to under the legislation. The case of Brazel v Harpur Trust has determined that this is not right. This probably makes sense in the scenario of a term time only worker but what about a seasonal worker who works for 3 months of the year and then becomes entitled to 5.6 weeks paid holiday? This amounts to 43% of their working time being paid as holiday! A big factor is to consider whether the worker is a permanent worker or whether they are engaged temporarily and the thinking is that the employer has the benefits that come with permanent workers, e.g. not having to re-train, conduct DBS checks, recruitment costs so will have to deal with the downside, which is that they are entitled to the full 5.6 weeks paid holiday per annum. It is a tricky area and going to be subject to further challenges. If you consider your business will be affected by this decision, please get in touch and we will assist you to make sure that your contracts are structured in such a way as to make the holiday pay fair for your employees and for your business. While the above is now the current position, the government has announced that it is consulting about changes to the law to deal with the effect of this case. Please feel free to contribute to the consultation (click here ). Otherwise, we will keep you posted if and when we hear about any changes. Kind regards Emily

Partner Announcement

Fri, 30 Sep 2022 12:28:00 GMT

Partner Announcement

We are thrilled to announce Louise Maynard’s promotion to Partner! Louise has worked as a Senior Associate for both Kilgannon and Partners and, before that, Springhouse Solicitors. In recognition of Louise’s wealth of experience in employment law and where she regularly manages to exceed clients’ expectations with the service she provides and outcomes she secures, Louise has been promoted to Partner. We are delighted with Louise’s progression and her promotion helps strengthen the firm as it continues to grow. We are sure you will all join us to congratulate Louise who can be contacted on lm@kilgannonlaw.co.uk or 0330 124 7814.

Welcome David Tyme

Tue, 19 Apr 2022 12:54:00 GMT

Welcome David Tyme

We are delighted to announce that David Tyme has joined us.
David is an experienced employment Solicitor who also provides advice and representation in relation to fitness to practice proceedings and conducts workplace investigations where he is able to offer truly independent assessments and investigations into complex workplace disputes and serious allegations of misconduct.
David joining the firm will greatly benefit our clients and we are looking forward to working with and supporting David who brings a wealth of experience and knowledge to Kilgannon & Partners.
As a valued client or friend of the firm, we are sure you will all join us in making David feel very welcome.
He can be contacted on: dt@kilgannonlaw.co.uk / 0330 124 7812 / 07954 324 927

Sex discrimination and sexual harassment at work

Mon, 28 Feb 2022 13:12:00 GMT

Sex discrimination and sexual harassment at work – developments since #MeToo?

We recently wrote about the case of a senior ACAS executive, Mr Woods, who was found guilty by his employer of sexual harassment in the workplace and was dismissed. Mr Woods won his claim at the Employment Tribunal for unfair dismissal, because his employer did not follow a fair process prior to terminating his employment. Mr Woods, however, was not awarded any compensation by the Tribunal in respect of his unfair dismissal due to his own blameworthy conduct and because the Tribunal found he would have been dismissed anyway even if his employer had followed a fair process.
The Tribunal judgment noted Mr Woods’ comments on the #MeToo movement, that “Things have changed since the MeToo movement, I don’t like it but I can understand it. It seems that the rules have changed” and that the “MeToo campaign had lowered the bar for sexual harassment”.
Developments since #MeToo?
The #MeToo movement has raised awareness of sexual harassment in the workplace. Sex discrimination claims, for example, increased by 69% in 2019, and reports of sexual harassment in the workplace have persisted despite the move by many to working from home throughout the Covid pandemic. We have previously commented on what employers can do to try and prevent negative workplace behaviour transcending the ‘new normal’ in our article How will bullies cope in a virtual workplace?
The use of NDAs (non-disclosure agreements, or ‘gagging orders’) has also come under the spotlight recently, particularly in sexual harassment cases. The Solicitors Regulation Authority has issued guidance on the use of NDAs, and the Equality and Human Rights Commission updated its guidance on sexual harassment in January 2020 (see Sexual harassment and harassment at work: technical guidance and Preventing sexual harassment at work: a guide for employers ).
Six universities have recently pledged to stop using NDAs in respect of those who make complaints of sexual harassment.
The government has committed to introduce duties on employers to prevent sexual harassment and third-party harassment in the workplace (when parliamentary time allows), although the reasonable steps defence (see below) will still be available to employers.
Potential claims
Claims for sexual harassment can be brought by employees (and some others, including job applicants and workers) in the Employment Tribunal under the Equality Act 2010 in relation to unwanted conduct of a sexual nature (which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment), or if they suffer less favourable treatment because they reject or submit to unwanted conduct of a sexual nature.
Victims of sexual harassment at work could also have separate claims in the civil courts for personal injury or under the Protection from Harassment Act 1997, and the harassment may also constitute a criminal offence.
Claims for sex discrimination can be brought if a woman suffers less favourable treatment compared to a man.
If an employee is subjected to a detriment (for example, denied a promotion) because they have, for example, made a complaint about harassment, then they may also have a claim for Victimisation.
Employer’s defence
Claims can be brought in the Employment Tribunal against an employer as being responsible for sexual harassment committed by its employees during the course of their employment. Claims can also be brought against individual perpetrators. However, there is a defence available to employers if they have taken all reasonable steps to prevent the harassment.
As a minimum, employers should:

have equal opportunities and anti-harassment and bullying policies in place;
make sure their policies are regularly reviewed and kept up to date;
make sure employees are aware of the policies;
make sure managers have appropriate training; and
make sure that complaints are dealt with properly (and promptly).

We previously reported on a case where the employer was unable to rely on the reasonable steps defence, because their equality training was found to be ‘stale’ and of poor quality, and managers were unaware of what to do when they discovered harassment ( “Stale” training sees employer lose discrimination claim ). In that case, the Employment Appeal Tribunal concluded that the employer should have undertaken refresher training.
Conclusion
While the #MeToo movement has raised awareness, it seems there is still a long way to go. The attitude of Mr Woods, a senior ACAS executive highlights that sex discrimination and sexual harassment still exists in the workplace.
Ensuring policies and procedures are regularly reviewed and updated is one part of the answer, but communicating and enforcing them is equally, if not more important.
Training and education for staff and managers can also help; particularly courses for all staff covering Equality, Diversity and Inclusion. Please see our training brochure for more information or if you would like to discuss any of these issues then please contact the writer, Marianne Wright, via mw@kilgannonlaw.co.uk or on 0330 124 7811.
Kilgannon & Partners LLP is a specialist employment law firm where our experienced employment law partners offer practical, prompt and professional employment law and HR advice.
28th February 2022. © Kilgannon & Partners LLP

You're Fired! (and rehired)

Wed, 23 Feb 2022 14:41:00 GMT

YOU'RE FIRED! (AND REHIRED)

There has been a lot of talk about dismissal and re-engagement (also known as “fire and rehire”) tactics lately.
We often advise employers who are looking to change employees’ terms and conditions. They could be looking to do this for a number of reasons, including economic circumstances or business reorganisation. We also advise employers on changing terms and conditions in the context of a TUPE transfer, but that is outside of the scope of this article.
If the terms you want to change are contractual, then you can face difficulties making changes if your employees are not in agreement. There are some options, but none are ideal:

If you go ahead and impose the changes, without the employees’ agreement, then the employees could resign and bring claims for constructive unfair dismissal. However, if an employee continues to work under the new changes without protest, then they could be found to have agreed to the changes.
You could look to ‘buy-off’ the changes by introducing them with some added benefit, such as a pay rise or bonus.
Alternatively, you could dismiss the employees who do not agree to the changes, but to reduce the risk of the employees bringing claims for unfair and wrongful dismissal, you should dismiss with notice (following consultation) and offer to rehire them immediately on the new terms. This is what has become known as fire and rehire.

With all options, where more than 20 employees are affected, you should engage in collective consultation (see our previous articles here and here ), otherwise you could be liable to pay a protective award of up to 90 days’ pay for each affected employee.
Fire and rehire is unpopular with many and, although such methods can be lawfully used in many cases, it is not without risk as Tesco recently found out.
The High Court recently granted an injunction , applied for by the trade union USDAW, preventing Tesco from firing staff and rehiring its employees on new terms.
Some years ago, when reorganising its distribution centres, Tesco negotiated “Retained Pay” for some of its warehouse operatives who agreed to relocate, as an alternative to redundancy. The Retained Pay was to remain for as long as the staff were employed in their current role and was described in communications to employees as being “guaranteed for life” and “permanent”.
Tesco announced in January 2021 that it was proposing to remove Retained Pay in return for a lump sum payment, and that if the employees did not agree they would be dismissed and offered re-engagement on new terms.
The union successfully obtained an injunction preventing Tesco from dismissing the affected employees.
Key to this particular case was that the Retained Pay was permanent for as long as the employee was employed by Tesco in their current role. The Court noted that Tesco could have put a longstop date on the entitlement to Retained Pay or made it clear that the entitlement to Retained Pay would only subsist for as long as the particular contract did, but they chose not to do so.
Although this was a rare and unusual case, the facts of which the Court described as “extreme”, the use of fire and rehire tactics has come under the spotlight recently, particularly due to the Covid pandemic (for example, “ British Airways faces strike threat over job cut plan ”, “ British Gas staff start five-day strike in 'fire and rehire' row ” and “ …Duke of Edinburgh’s Award using fire and rehire… ” ). In 2021, ACAS were asked by the Department for Business, Energy and Industrial Strategy to investigate fire and rehire practices. The government has said that it does not intend to legislate to curtail fire and re-hire, and a private member’s bill aimed at limiting fire and rehire practices was blocked in October 2021. ACAS published updated guidance in November 2021, which stated that firing and rehiring should only be used as a last resort.
As the Court highlighted, Tesco could still terminate the employees’ contracts for good cause (for example if they are genuinely redundant or committed gross misconduct), which would end their entitlement to Retained Pay. However, Tesco will have to tread carefully if they do dismiss any of the affected employees for good cause, as they will be under scrutiny in light of what has happened so far.
The Tesco case is unusual, however all employers considering using dismissal and re-engagement to force contractual changes should be aware of the risk of reputational damage if things are not handled properly, and the risk of dismissed employees bringing claims. We recommend employers take timely advice in any case where they are considering making changes to employees’ contractual terms.
If you would like any further information or want to discuss any of these issues then please contact the writer, Marianne Wright, via mw@kilgannonlaw.co.uk or on 0330 124 7811.
Kilgannon & Partners LLP is a specialist employment law firm where our experienced employment law partners offer practical, prompt and professional employment law and HR advice.
23rd February 2022. © Kilgannon & Partners LLP

ACAS - Do as I say, not as I do

Wed, 09 Feb 2022 19:47:00 GMT

ACAS - Do as I say, not as I do

ACAS has been found to have breached its own procedures. While Sue Grey has not been appointed to investigate, an Employment Tribunal judge has found that ACAS “failed unreasonable to comply with the relevant provisions of the ACAS code”.
Facts
Mr Woods, a senior employee, brought an Employment Tribunal claim against his employer, ACAS. Many are familiar with ACAS as an organisation which advises about workplace issues and produces guidance on best practice, as well the statutory ACAS Code of Practice on Disciplinary and Grievance Procedures.
Mr Woods faced allegations, including of sexual harassment at work. Internal investigation by ACAS found that Mr Woods had, amongst other things, sent inappropriate text messages to female colleagues.
Mr Woods was dismissed for gross misconduct. His appeal against his dismissal was unsuccessful and he brought a claim in the Tribunal for unfair dismissal.
The Employment Tribunal decision
The Tribunal held that Mr Woods had been unfairly dismissed by ACAS. The Judge commented on the unreasonable failure by ACAS to follow its own Code of Practice , including the failure to disclose witness statements to Mr Woods. It was not lost on the Judge in this case that the employer was responsible for the provision of codes of practice and guidance on workplace procedures.
The Tribunal did not, however, award any compensation to Mr Woods because it found that he would have been dismissed at the same time, even if ACAS had followed a fair process prior to his dismissal, and because of his own blameworthy conduct.
Tribunal decisions at this level are not binding on other Employment Tribunals, however the case highlights that sometimes an employee’s conduct can back-fire, even if the employer’s processes can be criticised, and it provides some comfort to employers that there are ways to limit the value of an employee’s claim.
Reducing an employee’s compensation in a successful unfair dismissal claim:
1. Failure to follow the ACAS Code of Practice
The ACAS Code of Practice applies to grievances, and to dismissals for poor performance and misconduct (although employers may choose to follow it in other circumstances as well).
An employee’s unreasonable failure to follow the ACAS Code of Practice, for example failure to raise a grievance prior to resigning and claiming constructive unfair dismissal, or failure to follow the employer’s internal appeal process after being dismissed, can lead to the Tribunal reducing the amount of compensation awarded to the employee by up to 25%.
Likewise, an employer’s unreasonable failure to follow the ACAS Code of Practice can lead to the Tribunal increasing the amount of the compensatory award payable to an employee by up to 25%. The Tribunal will, however, take into account the size of employer and its resources when considering whether any failure to comply with the ACAS Code is unreasonable.
Employers should make sure to act fairly and reasonably, and to follow the ACAS Code of Practice particularly in dismissal situations to which it applies.
In Mr Woods’ case, however, he was not awarded any compensation, so the uplift/reduction was not applied.
2. “Polkey” reductions
A reduction for ‘Polkey’ (named after the case of Polkey v AE Dayton Services Ltd), can be made to an employee’s compensatory award in a successful unfair dismissal claim against their employer. A reduction of up to 100% can be made, to take into account that the employee would have been dismissed anyway, and that procedural errors by the employer in the dismissal process made no difference to the outcome.
This line of argument is often used when an employer has multiple reasons to dismiss, for example, if an employee is dismissed for misconduct and there follows a redundancy situation. The redundancy will be used to argue a reduction in an award, while the misconduct used as the basis to defend the claim.
3. The employee’s own blameworthy conduct (contributory fault)
Compensation can also be reduced (again, by up to 100%) where the employee’s culpable or blameworthy conduct is found to have caused or contributed to their dismissal and the reduction is just and equitable.
The Judge in Mr Woods’ case concluded that Mr Woods would still have been dismissed for gross misconduct, even if a fair process had been conducted; the errors by his employer in their processes made no difference to the outcome.
Mr Woods’ own conduct was found to be entirely responsible for the dismissal. The Judge noted Mr Woods’ seniority and position of trust, and that he showed no insight or remorse. Mr Woods’ long service (39 years) did not mitigate his conduct in the circumstances.
4. Failure to mitigate
Finally, it is also worth noting that employees bringing claims for unfair dismissal and claiming for their future loss of earnings will be under an obligation to mitigate their losses, i.e. they are under an obligation to look for a new job or to apply for benefits where available. Failure to do so can also see a reduction or limit in compensation.
Conclusion
The ability for the Tribunal to reduce an employee’s compensation to zero in cases where their dismissal may have been procedurally unfair, but the employee’s own blameworthy conduct caused the dismissal provides some comfort to employers. However, employers still face the costs of going to Tribunal, and the potential associated reputational damage. It is therefore best to take advice as early as possible. If you would like any further information or want to discuss any of these issues then please contact the writer, Marianne Wright, via mw@kilgannonlaw.co.uk or on 0330 124 7811.
Kilgannon & Partners LLP is a specialist employment law firm where our experienced employment law partners offer practical, prompt and professional employment law and HR advice.
^9th February 2022. © Kilgannon & Partners LLP

Training Courses

Fri, 22 Oct 2021 10:44:00 GMT

Training Courses

We have today launched our detailed training brochure, which is available here; Kilgannon & Partners - Training Brochure . It sets out the training courses we can deliver to your organisation/managers on a wide range of HR-related topics; all designed to assist your managers improve their knowledge of employment law ensuring they and you remain compliant. In essence we can help your managers to manage better. The training is bespoke and tailored to your needs. It is delivered in an engaging and informative way where debate and discussion are encouraged to ensure your managers feel more confident about managing effectively. The training can also be tailored for HR professionals or those new to human resources. If you have any employment law training requirements or queries, please do not hesitate to contact our specialist trainer, Kerry, at ksp@kilgannonlaw.co.uk or 07512 361573. Comments from previous course attendees includes: “Professional, informal yet comprehensive overview of latest employment law aspects” “Kerry explains complex bits of law really well and is able to relate them to our organisation which is really helpful” “Very effective trainer – knowledgeable, listed and easy to follow” “Very engaging and enjoyable delivery of training with the ability for participants to provide an input on recent and relevant experience” “Very useful, learned a lot even though I’ve attended very similar courses in the past” “I became more knowledgeable in how to handle specific situations and where to look for support”

Announcement

Tue, 12 Oct 2021 12:52:00 GMT

Exciting Announcement......

We are delighted to be able to share the news that Kilgannon & Partners and Springhouse Solicitors ( www.springhouselaw.com ), have joined forces to create one of the largest dedicated employment law firms in London and the South. Combined, we now have 10+ highly experienced employment lawyers working from offices from Bristol to London and Chichester to Hertfordshire meaning we have greater strength and depth enabling us to support you and your business.

Hybrid Working

Wed, 14 Jul 2021 14:12:00 GMT

Hybrid Working

The recent government announcement that restrictions will be lifted on July 19, has left many employers and employees wondering what is next for working arrangements as the requirement to “work from home where possible” will be removed.
The events of the last year have meant that we have all had to adapt to different ways of working, including working from home, staggering working hours to avoid busier commutes, conducting meetings by video and some have also been balancing home-schooling as well.
Over the last few months, we have seen a number of organisations announce Hybrid Working arrangements and some big names also announcing that they will be returning (or already have returned) to their previous arrangements. A YouGov survey suggests that the majority of workers want to continue to work from home at least for some of the week going forward. We explore some the factors to consider in deciding what to do in your organisation.
Changes to Terms and Conditions
Usually, a change to terms and conditions requires consultation and agreement from the workforce. On the whole, our experience is that there has been little resistance to a change that requires staff to work from home and, in fact, for some clients we have seen an improvement in work-life balance by removing the commute. However, if you are trying out a new arrangement and decide six months down the line that you would like to return to full office attendance, you may find that you are in a difficult position as you will then need to consult with staff and gain their agreement to the change. If they refuse and they are dismissed or resign in response to the change in terms and conditions, they could have a claim for Unfair Dismissal or Constructive Unfair Dismissal. If they have made childcare arrangements around the change and this is affected, there could also be potential for discrimination claims.
Mental Health
We have seen a number of initiatives to ensure awareness and support of mental health first aid at work. While these are all positive initiatives, there is a risk, particularly when an individual is working from home entirely, that the early warning signs are missed and where individuals live alone, they could be missing out on their only form of social interaction.
Cost-savings
Having a hybrid working arrangement could mean a reduction in the need for office space, less utilities and therefore a cost-saving. Equally, there may be initial outlay in terms of purchasing equipment for home use but there is a good chance that businesses will have already incurred this cost in the last year. If cost saving is a factor, as it often is, you need to ensure your policies and approach do not result in increased costs, particularly the cost to create two offices for each employee and the additional resources needed to manage those working remotely.
Tax (and other) issues
We have seen some clients willing to allow staff to work overseas. This makes a hybrid solution more difficult to achieve. If you have staff working abroad, or are considering allowing this, there may be issues about whether the member of staff remains a UK tax resident and this opens up a whole host of potential issues.
Where staff may be living and working in a foreign jurisdiction, you will also need to consider any immigration issues to ensure your staff have the correct visa/permissions to work either here should they travel occasionally to the UK or in the country where they are based.
Flexible Working Requests
Any employee can make a flexible working request once they have worked for an organisation for 26 weeks and, although there is no right for this to be granted, it must be properly considered and can only be refused for a prescribed reason. If a flexible working request is granted, it becomes a permanent change to terms and conditions and therefore will take priority over those with temporary arrangements.
Productivity
With advancements in technology, it should now be easier to measure productivity and organisations will be able to measure any changes in efficiency from working from home. Early indications suggest that staff are more productive working from home as they are more focused and have fewer distractions. An ideal outcome with a hybrid solution, is that you potentially achieve the best of both Worlds. The time in the office allows for collaboration and team building while the time at home should allow your staff to be more productive.
Risk Assessment
Whilst it might be acceptable to delay a risk assessment during lockdown, if you decide to make hybrid working a permanent feature, you will need to ensure that home working environments amount to a “safe system of work”. This is likely to involve attending their home to carry out various H&S assessments
Competitive Edge
As we start to re-build after the financial hit of Covid-19, it is important to get the right people in place as part of our recruitment strategies. If your competitors are offering hybrid working, you may be missing out on the right candidate because you do not offer the flexibility shown by your competitors.
Want to learn more?
We are going to be exploring this topic further at our October HR Forum. Please contact us if you would be interested in attending the HR Forum to learn more or to share your experience.
If you would like any further information or want to discuss any of these issues then please contact the writer, Emily Kidd, via ek@kilgannonlaw.co.uk or on 01483 388 902 . Kilgannon & Partners LLP is a specialist employment law firm where our experienced employment law partners offer practical, prompt and professional employment law and HR advice.
14 ^th July 2021. © Kilgannon & Partners LLP

Illegality, whistleblowing and employment status

Wed, 16 Jun 2021 09:14:00 GMT

Illegality, whistleblowing and employment status - what more can a case offer!

The Court of Appeal has found that an illegal contract may not prevent claims of unfair and wrongful dismissal.
While the case is of interest because “illegality” is not a common defence for employers, the context of this decision is relevant as it relates to someone who was incorrectly treated as self-employed when, in fact, the Claimant was an employee. The Judgement emphasises the impact of incorrectly categorising someone’s employment status.
Facts On 23 ^rd March 2007, the Claimant, Ms Robinson, was employed by the Respondent to manage his properties and look after his children. The Claimant was paid £34,000, which in June 2009 increased to £37,000. This was treated as a ‘management fee’ by the Respondent and the letter of appointment stated the Claimant would pay her own tax/NIC.
In July 2014, the Claimant asserted that she was to be paid net and that she had not paid any tax/NIC. A dispute ensued regarding who was responsible, and the Claimant later claimed some of her correspondence amounted to protected disclosures under the whistleblowing legislation.
The Respondent began deducting tax/NIC, but held this in a separate account to account to HMRC if needed. The dispute did not resolve, and the Claimant was summarily dismissed on 19 ^th May 2017.
The Claimant pursued claims for automatic unfair dismissal and wrongful dismissal.
Employment Tribunal (ET)
The Respondent was successful at Tribunal, as the ET found the contract has been performed illegally. This was despite the ET also finding the Claimant had made protected disclosures and that the dismissal was wrongful and unfair.
In general terms, if a contract is tainted with illegality (such as non-payment of tax/NIC) it can mean the Courts are prevented from hearing/deciding a case and this had the effect of denying any award for the Claimant.
Appeal
The illegality point was appealed to the Employment Appeal Tribunal (EAT). The EAT held that where the employer was aware of the non-payment and took steps to address it, it should not prevent the Claimant from claiming unfair and wrongful dismissal.
The employer appealed to the Court of Appeal (CoA) who, having reviewed the case law surrounding illegality, looking specifically at the harm it would do to the integrity of the legal system if illegal claims were allowed.
The CoA found that the EAT’s decision was sound, and the employer’s appeal was dismissed.
Summary
The case is a very helpful reminder and summary of the case law surrounding illegality and the impact it can have on an employee’s ability to pursue a claim.
Of equal importance is the context, particularly, considering the recent legal developments with the Uber case and IR35. Here, the employee was incorrectly categorised as self-employed and paid gross.
This later caused numerous issues for the employer. During the dispute while she was employed, the employee:

asserted that her pay (£34,000, then £37,000) was her net pay, not gross. If true, it could mean a substantial liability accruing year on year for the employer; and
was able to establish that her concerns amount to protected disclosures/whistleblowing meaning she could claim automatic unfair dismissal with no cap.

Therefore, this case is also a timely reminder that correctly categorising an employee’s status is key. Get this wrong and a whole manner of costly issues will likely follow.
If you would like any further information or want to discuss any of these issues then please contact the writer, Matthew Kilgannon, via mk@kilgannonlaw.co.uk or on 01483 388 900 .
Kilgannon & Partners LLP is a specialist employment law firm where our experienced employment law partners offer practical, prompt and professional employment law and HR advice.
16 ^th June 2021. © Kilgannon & Partners LLP

Welcome Vinod Sharma

Fri, 28 May 2021 11:14:00 GMT

Welcome Vinod Sharma

We are delighted to announce that Vinod Sharma has joined us. Vinod is an experienced immigration Solicitor who can advise on all types of visa applications but who has a particular specialism in assisting clients with sponsorship licences. With tighter immigration controls and as the impact of Brexit starts to take effect, immigration law is becoming ever more complex and important. We are looking forward to working with and supporting Vinod who brings a wealth of experience and knowledge to Kilgannon & Partners having previously owned and run a London law firm. Vinod’s addition to the firm will greatly benefit our clients. Vinod can be contacted on: vs@kilgannonlaw.co.uk / 07359 109 473

A moral dilemma - repaying furlough

Mon, 17 May 2021 09:23:00 GMT

A moral dilemma - repaying furlough

Background
No-one disputes that the Coronavirus Job Retention Scheme (CJRS) has been invaluable in supporting businesses and keeping people in work. Without it, the level of unemployment would be much higher.
According to the Government’s statistics dated 25 ^th March 2021 ( here ):

The number of people furloughed rose sharply in November 2020 to 4 million, increased further to 4.9 million on 31 ^st January 2021, but has now reduced to 4.2million.
As at 28 ^th February 2021, 41% of employers had furloughed staff, which is believed to have reduced to 39% as at 31 ^st March 2021.
A total of 11.5 million jobs have been supported by the CJRS.

The Commons library ( here ) has stated that the cost of the CJRS after one year was over £53 billion.
Recently, we have seen several businesses deciding to repay HMRC money claimed via the CJRS.
Claiming under the CJRS was probably the correct initial step for many businesses to take when the pandemic first took hold, and we are not yet out of the woods, but it may be becoming clear for some businesses that they have been less affected by covid than first feared. If so, will we begin to see more businesses choosing to repay?
CJRS rules
The Government guidance (available here ) says; “ If you cannot maintain your workforce because your operations have been affected by coronavirus (COVID-19), you can furlough employees and apply for a grant to cover a portion of their usual monthly wage costs where you record them as being on furlough .”
The key part of the guidance is the opening sentence. Those who can claim are only those who have not been able to maintain their workforce because operations have been affected by covid.
This gives the Government scope to argue that an employer claiming CJRS who could have maintained its workforce, should be required to repay furlough claims.
We saw a glimpse of control being imposed by the Government when it was planning the Job Support Scheme (JSS). That scheme never came into effect, but an eligibility requirement for larger businesses was that they “… will not make capital distributions while accessing the grant. This includes any dividend, charge, fee or other distribution or, if it is a partnership, any equivalent payment to its partners .”
What followed that paragraph was interesting, albeit the JSS guidance has been withdrawn. It focused on the moral obligation and said: “ This expectation is not a contractual or legal condition of the scheme. Employers are encouraged to reflect on their responsibilities and the fact that taxpayers should be able to rely on public money only being claimed where it is needed .”
Moral dilemma
If a business performed on par with 2019 or did better than expected (even seeing an increase in turnover/profit/cash during the pandemic) should there be an obligation on it to refund CJRS money to HMRC?
At first blush, such businesses do not appear to fall within the CJRS guidance as they will have been able to maintain their workforce because their operations have not been affected by covid. This may give the Government scope to challenge their claims, and most people would probably think that would be fair and right.
There are likely to be other pressures that will, over time, come into play.

Your staff will have a sense of how the business has performed, especially your accounts team, or if you publish financial data. If your staff know the business has done well while claiming government money, it is unlikely to sit comfortably with them. Where competition for the best talent is fierce, any negative PR or refusal to repay may impact your ability to recruit and retain.
Do not forget the Government has already introduced (and promoted) a confidential line that allows employees to easily report their employer if it has abused the CJRS. This could be used by employees to report employers who have taken public money but seen no impact to their business.
The public may well expect taxpayers’ money to only be used by those businesses who need it. Where the data on who has claimed is now public, it will be easy for someone to see if your business has claimed. Most business are also required to publish accounts, so, in time, there will be information available in the public domain about your organisation’s finances.
We also recall the backlash against certain wealthy celebrities whose businesses claimed CJRS money at the outset; there being some strong moral views that such wealthy people should not benefit from taxpayers’ money.
Your customers may use the Government’s data to see if you have claimed CJRS and, if so, could this become a factor in them deciding to deal with you.
Your competitors may begin to repay furlough money and, the more that do so in your sector, the more the pressure may mount on you to follow suit. The legal sector is already seeing firms repay furlough money, and that trend, we suspect, will continue.

While most business will not have flourished in 2020/2021, and certain sectors like hospitality and retail have suffered significantly, there is likely to be growing pressure from all quarters; HMRC, your staff, the public, your customers and your competitors if any feel your CJRS claim was unnecessary.
Summary
Any business found to be using taxpayers’ money to increase profits is likely to see a significant public back-lash if it ever becomes known. Owing to the size of the public debt, we suspect this issue will continue to rumble on, especially, as more and more businesses decide to repay CJRS money.
It is (or is likely to become) a hot topic for many employers who have come to realise that while covid had an impact, that may not have been as bad as first feared. If so, when they “… reflect on their responsibilities …” they may decide to repay CJRS money.
Now some businesses are repaying CJRS money, will we see a snowball effect where businesses want to be seen to act ethically and/or not be outdone by their competitors.
If you would like any further information or want to discuss any of these issues then please contact the writer, Matthew Kilgannon, via mk@kilgannonlaw.co.uk or on 01483 388 900 .
Kilgannon & Partners LLP is a specialist employment law firm where our experienced employment law partners offer practical, prompt and professional employment law and HR advice. 17 ^th May 2021. © Kilgannon & Partners LLP

“Stale” training sees employer lose discrimination claim

Fri, 19 Mar 2021 08:59:00 GMT

“Stale” training sees employer lose discrimination claim

The recent Employment Appeal Tribunal (EAT) case of Allay (UK) Ltd v Gehlen gives a helpful reminder of how employers can defeat discrimination claims (or not, as happened in this case).
Background
Employers are vicariously liable for the acts of their employees. Section 109 EqA states that “anything done by a person...in the course of [their] employment must be treated as also done by the employer.”
The Equality Act (EqA) includes a “Statutory Defence” against discrimination claims. This allows employers to escape liability for such claims.
Section 109 goes on to state that in discrimination proceedings against an employer in respect of anything alleged to have been done by a person in the course of their employment, it is a defence for the employer to show that it took “all reasonable steps” to prevent the perpetrator from a) doing that thing or b) from doing anything of that description.
The Allay case – Facts
Mr Gehlan was summarily dismissed in September 2017 for performance reasons with just under one years’ service. After his dismissal he complained that he was subject to racial harassment by his colleague, Mr Pearson.
The employer, Allay (UK), established that Mr Pearson had regularly made racist comments to Mr Gehlan and he underwent further Equality and Diversity training. Allay (UK) had an equal opportunities policy and an anti-bullying and harassment procedure. Further, Mr Pearson and one of the managers who knew what was happening underwent bullying and harassment training in February 2015 and equality and diversity training in January 2015.
Employment Tribunal (ET)
Allay (UK) relied on s109 EqA claiming it had taken all reasonable steps to prevent discrimination in the workplace and so should not have been liable. In the ET, Mr Gehlan failed in his claim of direct race discrimination but was successful in his complaint of harassment related to race and was awarded £5,030.63 compensation.
EAT
Allay (UK) appealed to the EAT. The EAT reviewed the leading case of Canniffe v East Riding of Yorkshire Council and confirmed a three-stage approach in considering whether the statutory defence applies:

identify any steps that have been taken,
consider whether they were reasonable,
consider whether any other steps should reasonably have been taken.

Steps were clearly taken in the case; there were policies in place and training had been provided.
The Judges considered carefully whether the steps were reasonable and, here, the nature and extent to which the steps were likely to be effective was important. The EAT decided that because managers had ignored or not understood the training, that was relevant in deciding if all reasonable steps had been taken.
The EAT, quoting the EqA, decided that where the defence requires “all reasonable steps” to be taken that this had not happened, and the ET decision was upheld.
The ET concluded the training had become “stale” and the EAT agreed. The EAT also criticised the quality of the training and found this was a factor in Allay (UK) failing to establish the statutory defence. The fact that managers were unaware of what to do when they discovered harassment only supported its findings.
The EAT concluded that there were further reasonable steps by way of refresher training that Allay (UK) should have undertaken and, by not doing so, the statutory defence was unavailable meaning it remained liable.
Summary
The case is a reminder of the high threshold employers need to meet to benefit from the statutory defence. This means considering the frequency and quality of any policies and training.
If applicable, the statutory defence provides an escape from liability for employers, but time and effort is required to make sure it is available and likely to succeed. This typically involves two key steps:

The first step is to ensure polices dealing with harassment and equality are up to date and compliant.
The second step is to train all staff and managers on these issues and what behaviours are required in the workplace. That training needs to be good quality, regular and effective.

If you invest time and effort to prevent discrimination in the workplace, that should, on its own, help avoid claims and issues against your organisation. If, despite the investment and effort, you are still sued for discrimination, you may be able to avoid liability altogether.
Of course, we can help with both.
We regularly review and update such policies and we have devised a dedicated half-day training session that we can deliver to your staff and managers to help eradicate discrimination, but also help you defend claims should they occur.
If you would like any further information or want to discuss any of these issues then please contact the writer, Matthew Kilgannon, via mk@kilgannonlaw.co.uk or on 01483 388 900 . Kilgannon & Partners LLP is a specialist employment law firm where our experienced employment law partners offer practical, prompt and professional employment law and HR advice.
19 ^th March 2021. © Kilgannon & Partners LLP

Uber and Employment Status

Fri, 12 Mar 2021 08:55:00 GMT

Uber and Employment Status

Background
The recent Uber decision provides further guidance from the Supreme Court on the ever difficult issue of ‘employment status’.
The case looked at whether the Uber drivers bringing the claims were “workers” or, as Uber alleged, “self-employed” consultants.
Employment Status
When considering what status someone has, there can be considerable difficulty in determining which category someone falls into. For employment purposes, there are three main categories that apply (please note for tax purposes there are only two):
1. Employees
2. Workers
3. Self-employed
Those who are self-employed do not enjoy employment rights to the same extent that employees do. Employees enjoy maximum protection, including the right to claim unfair dismissal. Anyone who has been a party to a settlement agreement will be aware of the long list of potential claims that employees have; typically added as a two or three page schedule to the end of such agreements.
Workers sit between those who are self-employed and employed. They generally have more freedom/less control around how and when they work compared to employees. The main rights that workers benefit from, that those who are self-employed do not, are the right to be paid the minimum wage, rights under the Working Time Regulations for paid annual leave and whistleblowing protection, which were all under consideration in the Uber case.
The cases that have considered employment status generally end up looking at issues around control, risk and flexibility. The greater the flexibility an individual has, the more risk they take and the more freedom they have regarding the work they perform the more likely they will be self-employed and less likely they will be employed or a worker.
The Uber case now gives additional guidance on how to interpret and determine an individual‘s status so as to try and decide whether they are self-employed, workers (so entitled to holiday pay the minimum wage etc) or employees.
Uber case
On the one hand, Uber drivers had a lot of flexibility. They “...had a substantial measure of autonomy and independence. In particular, they were free to choose when, how much and where (within the territory covered by their private hire vehicle license) to work.”
Further, Uber drivers were free to work for other such providers. The drivers also had to provide and pay for their own vehicles and bear all the cost of running their vehicles, including fuel, insurance, road tax and obtaining their private hire vehicle licence.
When working for Uber they simply had to log onto the Uber app, which they could do as often or as little as they wanted.
In many sectors, such risk and freedom would normally denote that an individual is self-employed and not a worker or employee. However, the Uber case was slightly more complicated given the rules governing private hire vehicles and how they need to operate. Much of a case centred on the contractual arrangements between Uber BV (that owned the app), Uber London that contracted with the Uber drivers to work in that area and the passengers (or users).
Given the way in which arrangements were made between Uber BV, Uber London, the drivers and passengers, the court unanimously found that, largely owing to 5 main aspects, the drivers in the claim were workers and not self-employed.

Firstly, the amount of remuneration paid to the drivers was fixed by Uber and the drivers had no say in it. Uber also set its own “service fee”, which was deducted from the fare paid to the drivers.
Secondly, the contractual terms under which the drivers performed their services were dictated by Uber. The drivers were required to accept Uber’s standard form of written agreement and the terms of which they transport passengers were imposed by Uber on the drivers who had no say in them.
Thirdly, while the drivers had choice as to when and where they worked, once a driver had logged onto the Uber app, Uber applied constraints on the driver’s choice about whether to accept requests from passengers. This was done partly by controlling the amount of information provided to the driver and that the driver was obliged to complete the journey but only informed of the destination once the passenger was picked up. Further controls exercised by Uber included monitoring the rate of trips that were offered to the driver. If too many trips were refused by the driver, when logged onto the app, they would be subjected to a penalty by Uber and shut out from using the app for 10 minutes.
Fourthly, Uber exerted control over the way in which the drivers delivered their services. While the drivers were free to provide their own cars, Uber vetted the type of vehicle that could be used and the technology, which was integral to the service, was wholly owned and controlled by Uber. This included further control by using ratings given by passengers about the driver which could, ultimately, result in the termination of the driver’s relationship with Uber. The court found Uber was, therefore, using the rating system as an internal tool for managing performance and as a basis for making termination decisions.
Fifthly, there was further evidence of control whereby Uber restricted communication between the passenger and driver to the absolute minimum. Uber went to lengths to prevent drivers from establishing any relationship with passengers. Included in this was a prohibition on the drivers in exchanging contact details with passengers and an electronic document, called an invoice, was issued from the driver to the passenger, but never sent to the passenger and, while available for the driver, it only recorded the passenger’s first name and no further detail.

Taking all of the factors into consideration the court upheld the Employment Tribunal‘s decision that Uber very tightly controlled how the services were performed. It found this was done so was to provide a standardised service to passengers in which drivers are perceived to be interchangeable and from which Uber, rather than the drivers, obtained the benefit of customer loyalty and goodwill. This meant the drivers had an inability to offer a distinctive service meaning they had no ability to improve their economic position unless they simply worked more hours.
Implications for Uber
The court went on to consider the implication of its decision that the drivers in the case were ‘workers’. It again supported the Employment Tribunal’s finding that the drivers were working, for the purposes of calculating their pay under the National Minimum Wage Act, from the moment they switched on the app and were available to work.
Uber counter-argued strongly on the basis that the drivers could work for other such providers at the same time, but the court, looking at it practically, concluded that the reality was that given Uber’s market share in London there were no other providers that the Uber drivers could contract with and this was, therefore, merely a theoretical argument on Uber’s part.
The decision means that, as workers, Uber drivers are now entitled to claim the National Minimum Wage (based on when they were available for work, not just when carrying passengers) and holiday pay. Unless Uber has since changed how it operated (the case reflected the position in 2016), then its current drivers will also be workers and entitled to these rights.
While we don’t know how many individuals were involved in the claim, in 2016 there were some 40,000 Uber drivers in London (serving some two million people), so potentially the liability will be significant for historical claims but also for the future ongoing liability as a result of this decision.
Summary
As is often the way when considering employment status “control” is a key factor, as it was in the Uber case.
Simply put, the more control a business exercises over someone, the more likely they will be a worker or an employee.
The case is very timely with the introduction of IR35 which further seeks to categorise self-employed people as employees, albeit for tax purposes.
The court was also at pains to express that the National Minimum Wage and Working Time Regulations are there to protect those who are most vulnerable and will be applied regardless of whatever contract is entered into.
While the decision will be expensive for Uber, it does help clarify employment status and gives us further guidance and considerations that can be applied when considering this, often difficult, question.
If you would like any further information or want to discuss any of these issues then please contact the writer, Matthew Kilgannon, via mk@kilgannonlaw.co.uk or on 01483 388 900 .
Kilgannon & Partners LLP is a specialist employment law firm where our experienced employment law partners offer practical, prompt and professional employment law and HR advice. 12 ^th March 2021. © Kilgannon & Partners LLP

Announcement for Kerry Scott-Patel

Wed, 17 Feb 2021 10:56:00 GMT

Announcement for Kerry Scott-Patel

We are delighted to announce that Kerry Scott-Patel is now working with us an expert and specialist training Consultant.
Kerry trained and qualified as an employment law Solicitor working in London and the Middle East. Although she no longer practises as a Solicitor, Kerry uses her vast legal experience when providing training to UK and International clients on all areas of employment law.
Kerry’s training session are always highly engaging and practical and we are very much looking forward to Kerry supporting our clients’ managers, HR teams and senior leaders; giving them the confidence and knowledge to deal with a wide range of workplace issues.
As a valued client or friend of the firm, we are sure you will all join us in making Kerry feel very welcome.
If training your managers/senior leaders is of interest, please contact Kerry on:
ksp@kilgannonlaw.co.uk / 01483 388 900.

IR35: Solutions

Mon, 15 Feb 2021 09:52:00 GMT

IR35: Solutions

If having applied the status determination test you conclude that an individual is caught by IR35 and is really an employee, you need to decide what to do next. There are several options that we consider in more detail below.
1. Do nothing This is not advised. If HMRC decides to investigate your business, liability to pay NIC etc will sit with you as the end client, not the individual or his/her personal service company (PSC). Moving the liability to the end client is the main change in April 2021 (albeit to medium and large businesses) whereas, currently, liability sits with the individual or his/her PSC.
You also face the risk that the individual will, at some point, claim to be your employee or worker and, if so, there will be liability for things like holiday pay and/or unfair dismissal.
As ever, burying your head in the sand is only likely to worsen the problem. The more time that passes, the bigger the liability/problem will become.
2. Make the individual an employee
This is perhaps the outcome HMRC wants, some might say so it can collect more tax, but doing so has some significant practical considerations.
The individual may not want to be an employee but prefer to find some alternative solution where s/he can keep flexibility. Seeking to change their employment status may see them cease their relationship with you.
Your liability will increase significantly, as you will be required to treat them consistently with other employees; providing benefits (including pension), holiday and paying employers’ NIC (13.8%), so are realistically looking at a minimum 20% cost over and above their basic pay; assuming you are able to avoid any increase in their gross pay.
It is probably wishful thinking to expect a contractor to agree to continue working for you at no additional cost to you. This would see them suffer a massive reduction in pay and so is unlikely to be acceptable to them.
Probably the biggest issue for the individual will be a potential reduction in net pay. Even if you agreed to maintain their contractor rate as their gross salary and you absorb the additional on-costs to you (say, 20% as above), the individual would face a reduction in net pay as they would not have the benefit of operating through a PSC. As such, are you prepared to increase their pay so they end up in the same net position? This will be a very expensive option. Further, where contractors are usually paid more to offset the lack of benefits and security, paying them more (or even maintaining their pay) is likely to put your pay scales out of kilter, and could create equal pay issues.
There is also an issue if you conclude the individual is an employee (or worker), the terms of ongoing employment cannot be agreed, and the relationship ends. If so, having concluded s/he is an employee, you risk a claim in the employment tribunal. You will have openly accepted the individual is an employee and they may decide to claim for unpaid holiday pay/pension/other benefits and/or unfair dismissal. As such, great care needs to be taken with this approach if this is your preferred option.
3. Require them to operate through an employment agency or umbrella company.
This should mean you can ignore IR35 provided you know they are employed by the agency/umbrella company.
However, while a safer option, this is probably the most expensive. The agency will be forced to pay employer’s NIC and provide benefits (pension as a minimum) and holiday. As such, it will charge all those costs to you. In addition, it will want to make a profit, so there is likely to be an additional fee on top, which you will have to pay. If they are provided to you via an agency, you will need to meet your obligations under the Agency Workers Regulations, which includes rights from day one and again after 12 weeks.
The same considerations above in point 2 also apply; will you seek a reduction in the individual’s pay to minimise your exposure and risk losing the contractor, or will you agree to match their current rate.
4. Change how the individual is engaged so s/he falls outside IR35.
This may not be possible. If it is, it is likely to see a change in how you operate and potentially how much control you can exercise over the individual.
It may mean you require them to provide equipment or take greater risk, it could be that they are encouraged to work for other businesses, however, if they are specialists, will you want them working for a competitor? Is it practical for them to have an unfettered right to supply a substitute? If not, you will have to impose some control over how/what they can do and who they can substitute. Such control could be fatal to showing they are outside IR35.
Much like a change in their pay may see them earn less, a change in the working relationship may see them worse off or working in a way they are unhappy about.
While you can load indemnities into the contract, particularly around tax, ultimately, HMRC will look to you to pay tax/NIC in the event the individual is caught by IR35. If an individual remains working solely for you on a full-time basis, it may be hard to show s/he is not an employee.
If you are going to proceed with this option, there are some things to consider in both the contract you provide and the working arrangements that apply:

Allow the individual an unfettered right of substitution,
Allow them to set their own place of work and working hours,
Try not to integrate the worker into your work force; at least, not too much,
If possible, ensure the individual takes some risk and/or provides their own equipment,
Give them the right not to accept work and, ideally, have a mechanism of recording when work is either requested and refused or offered and refused,
Build in tax indemnities, and
Require them to have their own insurance.

While the contract can be used to portray the individual as self-employed, you need to ensure that the above reflects reality. All too often judges put the contract to one side and want to know how the relationship worked in practice; we suspect HMRC will be the same. Therefore, the contract should reflect reality and you should ideally find a way to demonstrate the terms reflect what happens in practice.
If any of the issues discussed above are a concern to you, or if you would like specific advice, please contact the writer, Matthew Kilgannon, via mk@kilgannonlaw.co.uk or on 01483 388 901 .

Kilgannon & Partners LLP is a specialist employment law firm where our experienced employment law partners offer practical, prompt and professional employment law and HR advice. 15 ^th February 2021. © Kilgannon & Partners LLP

Announcement for Matthew Fletcher

Fri, 12 Feb 2021 08:52:00 GMT

Announcement for Matthew Fletcher

We are delighted to announce that Matthew Fletcher has joined us.
Matthew is an experienced employment Solicitor with a particular specialism in discrimination law and he joins us from a well-known city firm that focuses on this area.
We are looking forward to working with and supporting Matthew who brings a wealth of experience and knowledge to Kilgannon & Partners. As discrimination laws become ever more complex, his addition to the firm will greatly benefit our clients.
He can be contacted on:
mf@kilgannonlaw.co.uk / 07446 826421

Taylor v Jaguar Land Rover

Mon, 08 Feb 2021 08:06:00 GMT

Landmark case sees huge cost to Jaguar Land Rover

Background
The case of Taylor v Jaguar Land Rover was decided towards the end of 2020. It is relevant for two main reason: Firstly, the Tribunal needed to deal with issues surrounding employees who seek to claim discrimination because of gender reassignment. Secondly, the judgements that followed provide a stark reminder of how far the Tribunal can go when finding discrimination has occurred. The effect of the decisions in this case will be extremely costly to Jaguar Land Rover, but that is only because of the treatment to which it subjected Ms Taylor.
Legal Issues
Part of the claim was made under Section 7 Equality Act 2010, which prevents discrimination against a person for reasons of gender reassignment. Section 7 says; “A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.”
Ms Taylor identifies as gender fluid/non-binary and it was initially thought that this would not be enough to meet the s7 definition which requires a person to, at least, be “…proposing to undergo…a process…for the purpose of reassigning…” their gender.
However, the Tribunal seemed to have little difficulty in finding that Ms Taylor was covered by Section 7 and had the protected characteristic of gender reassignment.
Having found she had a protected characteristic, the Tribunal went on to find that Ms Taylor was subject to discrimination from abusive jokes and insults, a lack of managerial support and difficulty in using the toilet facilities.
This case appears to extend the law on gender reassignment protection, reflecting a more liberal approach by society, by giving rights to those who identify as gender fluid/non-binary.
Cost to Jaguar Land Rover
Aside the PR disaster for Jaguar Land Rover, the case is also interesting given how vehemently unimpressed the Tribunal appears to have been with Jaguar Land Rover, not only in its treatment towards Ms Taylor while she was an employee, but also its conduct of the litigation. As can be seen here the Tribunal reached a number of findings, including:

"The respondent’s statutory defence to the above allegations fails, and [is] totally without merit.”

As an employer you can argue the ‘statutory defence’ in discrimination claims as a way of avoiding liability. However, to avail yourself of the statutory defence you need to have taken all possible steps to eliminate discrimination in the workplace, which, as a minimum, is likely to mean detailed polices and training [please note, if you/your managers need training on equality, diversity and inclusion this is something we can provide].

"The claimant’s compensation shall be uplifted by 20% because of respondent’s complete failure to comply with the ACAS Code of Practice in relation to the claimant’s grievance about short term measures to assist her transitioning.”

If either you or an employee fail to comply with the ACAS Code of Practice, compensation awards can be increased or decreased by up to 25% depending on who is at fault. A 20% uplift is quite high and shows how unimpressed the Tribunal was.

"Having heard submissions on this point, this Employment Tribunal considers it appropriate to award aggravated damages in this case because of the egregious way the claimant was treated and because of the insensitive stance taken by the respondent in defending these proceedings. We are also minded to consider making recommendations in order to alleviate the claimant’s injury to feelings by ensuring the respondent takes positive steps to avoid this situation arising again.”

As we detail below such recommendations were made.
From a later judgement available here the Tribunal went on to make the following orders:
“ 1 We make a statutory recommendation that the Respondent’s Board of Directors read and discuss our written reasons for this judgment at a Board meeting on or before 1 March 2021. A copy of the minutes recording that this has taken place is to be sent to the claimant by 15 March 2021.
2 The claimant’s application for costs will be heard on 22 January 2021 and directions about that have been made in a separate Case Management Order.
By consent:
3 The respondent (“JLR”) agrees to appoint one of its number as a Diversity and Inclusion Champion.
4 The respondent’s Board shall commission a report by a recognised diversity organisation, such as Stonewall, to investigate diversity and inclusion throughout JLR (to include speaking to the claimant) and produce a report setting out the current position and the steps necessary for JLR to become a “standard setting Case No: 1304471/2018 2 organisation” in the diversity and inclusion field across all the protected characteristics.
5 Thereafter, for the next five years, an expert appointed in the same way will produce an annual report of progress by reference to the original report.
6 The report referred to in paragraph [4] above, and the annual reviews referred to in paragraph [5] above, shall be made public and sent to all employees and workers at JLR, and to the Claimant.”
The final part of the order records Jaguar Land Rover’s consent to pay Ms Taylor £180,000 in settlement of the claim. Unfortunately, it does not end there. The £180,000 payment does not include Ms Taylor’s costs application, which was set to be heard on 22 ^nd January 2021. At the time of writing, no judgement on that has been published.
The full reasons in the case can be found here . We look forward to reading Jaguar Land Rover’s reports over the next five years to see the progress it makes in this area.
If you are faced with issues of discrimination, we strongly suggest you seek expert employment law advice.
If any of the issues discussed above are a concern to you, or if you would like specific advice, please contact the writer, Matthew Kilgannon, via mk@kilgannonlaw.co.uk or on 01483 388 901 .
Kilgannon & Partners LLP is a specialist employment law firm where our experienced employment law partners offer practical, prompt and professional employment law and HR advice.
8 ^th February 2021. © Kilgannon & Partners LLP

COVID VACCINE

Thu, 04 Feb 2021 12:20:00 GMT

Can an Employer force its Staff to have the COVID vaccine?

This is an interesting question that is being asked more and more as the vaccine gradually rolls out.
Currently, it is being given to those over 80 and, in some areas, over 70s. As it becomes available to those more likely to be in employment (it is expected to be offered to all adults by the autumn), we explore the factors for employees and employers to consider.
ACAS Guidance
The ACAS guidance provides that employers should support staff who want to have the vaccine but cannot force them to have it. It does, however, state that there may be some situations where the vaccine may need to be mandatory, for example, where they are required to travel overseas for work. Some reasons why we consider it may be difficult to impose a mandatory vaccine are set out below.
Right to Private Life
One of the fundamental principles of the Human Rights Act 1998 is the right to a private life. As such, an employee could argue that it is none of their employer’s business whether they choose to accept the vaccine when it is offered to them. While that may be the case, employers need to balance the right to private life with the need to protect other employees’ and customers’ health and safety.
Discrimination
We believe that there are possible discrimination angles in mandatory vaccines. The protected characteristics that might be impacted by the vaccine are:
- Disability Those with compromised immune systems may not be able to have the vaccine and so it would likely be discrimination to impose a recruitment policy or impose disciplinary sanctions for those that have not had the vaccine.
- Age Because there is likely to be at least a six-month gap between older groups having the vaccine and younger adults, it could be age discrimination to only offer work to those that are vaccinated.
- Religion or belief Many vaccines use gelatin derived from pigs and there are indications that the COVID vaccine may do the same. There are likely to be a number of people refusing on religious grounds of because they are vegan or vegetarian. - Sex There are some rumours that the vaccine may affect fertility (or at least it has not yet been proven that it does not) and, until there is further evidence, some women may refuse on this basis if they have not had children or if they are trying to get pregnant. Usually, unless a pregnant woman is considered clinically extremely vulnerable, she will not be routinely offered the vaccine.

Health and Safety at Work
Employers have a duty to ALL staff to provide a safe system of work. The difficulty will be where some staff have refused the vaccine and other staff are concerned about their own safety in attending work.
GDPR
If employers keep records of who has and who has not had the vaccine, this is likely to be classed as special category data given that it relates to health records and so employers will need to review privacy notices as there are particular considerations and the rules are more restrictive regarding special category data.
Whether you can force your employees to have the vaccine will be dependent on many factors; some moral, some legal. As we move into the Spring and the age range of those vaccinated reduces, we suspect this topic may get more focus.
If you would like any further information or want to discuss any of these issues then please contact the writer, Emily Kidd, via ek@kilgannonlaw.co.uk or on 01483 388 900 .
Kilgannon & Partners LLP is a specialist employment law firm where our experienced employment law partners offer practical, prompt and professional employment law and HR advice.
4 ^th February 2021. © Kilgannon & Partners LLP

CJRS Considerations

Thu, 05 Nov 2020 10:34:00 GMT

CJRS Considerations

While we continue to wait for the official government guidance (available here ) to be updated to set out the rules of the extended CJRS, we have been thinking about how its extension might assist employers.

Assuming the rules remain the same as they did under the original and flexible furlough schemes, employers should think about the following:

Holiday

An area that may be overlooked by employers is holiday and holiday pay. Potentially, the extended CJRS provides an opportunity to reduce this liability.

When many employers previously brought staff back to work from furlough leave, the issue of accrued holiday pay was one they needed to look at, as holiday continues to accrue while an employee is on furlough leave.

With the extension to furlough leave, the time an employee spends on furlough leave could be used as holiday to reduce an employee’s accrued holiday.

There are specific requirements you need to meet to ensure the holiday is taken, so as to reduce the accrued holiday.

If this is not possible, employers can look at allowing staff to carry forward unused holiday into the next holiday year; this may be particularly relevant for businesses with a holiday year that ends on 31st December, as most do.

If not used (and if carried forward), accrued holiday is likely to create issues for when “normality“ returns as staff may have lots of accrued holiday meaning a business risks being short staffed just at the time it needs staff to work. Also, if staff resign or are dismissed, accrued holiday will need to be paid, so trying to reduce any accrued leave will help limit that liability.

Redundancy

One of the conditions of the job support scheme (that has now been delayed) was that employers could not claim for staff who are under consultation for redundancy.

While we do not yet know the specific rules of the extended CJRS, if they are as before, then consultation for redundancy can take place while staff are on furlough leave. Therefore, if businesses are unfortunately forced to consider redundancies the redundancy consultation can take place while the employer recovers 80% of the wages (up to £2,500 p/m).

We fully suspect that, as before, the extended CJRS money cannot be used to fund statutory redundancy payments, but it could be used to contribute towards notice money (as below) or holiday (as above).

Notice

As with redundancy, the job support scheme did not allow employers to claim if staff are under notice.

If the extended CJRS mirrors the previous scheme, then notice can be served to those staff on furlough leave and the employer can recover 80% of the cost (up to £2,500).

Please note that, with notice pay and holiday pay, the salary will need to be topped up to 100%. If an employee is on notice then you may be able to also require the employee to use their holiday while under notice, to eliminate this liability while claiming under the extended CJRS.

There may not be sufficient time to deal with redundancies and notice if the furlough scheme ends in early December, but if lockdown and the extended CJRS continue into late December it may provide an opportunity for those businesses who plan early to save significantly sums against these costs.

Vulnerable staff

We are already helping clients where their employees are pushing to be placed on furlough rather than work. Many individuals are citing that this is because they live with somebody who is vulnerable.

Our view is that the furlough scheme is not there to provide for this situation.

The opening paragraph to the government guidance makes it clear that the furlough scheme is to be used by those businesses affected by covid.

While previously there was grounds for those shielding to not work or be treated as on sick leave, those rules have been relaxed and the guidance from ACAS and the Government is that only vulnerable Individuals have protection, not people who live with them. This means that if your employee is not themselves vulnerable, they can be required to continue working.

Working from home

As before, the government is suggesting that staff should work from home where possible.

This link (point 6) says that those who can “work effectively from home must do so“. For many businesses staff do not work “effectively” from home and, for this reason, we are seeing a number of clients continue to operate where they are not in a sector that is being forced to close.

If working from home is allowed (or required) then there will be many factors for you to consider, as are highlighted in our earlier article available here .

Whatever the final rules end up being and for however long the extended CJRS applies, it will no doubt be a welcome extension to many businesses in preference of the Job Support Scheme. It may also present opportunities for businesses to save money.

If you would like any further information or want to discuss any of these issues then please contact the writer, Emily Kidd, via ek@kilgannonlaw.co.uk or on 01483 388 900 .

Kilgannon & Partners LLP is a specialist employment law firm where our experienced employment law partners offer practical, prompt and professional employment law and HR advice.

Extended CJRS

Tue, 03 Nov 2020 20:27:00 GMT

How will the extended CJRS work?

At the time of drafting this, we are still waiting for the official government guidance to be updated to reflect the media reports and Chancellor’s announcement as to how the extended CJRS will work.

The two main Government guidelines we tend to look at both refer back to July and August dates, so appear incorrect in that regard, but both say they were updated on 1st November 2020.

https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme

https://www.gov.uk/guidance/calculate-how-much-you-can-claim-using-the-coronavirus-job-retention-scheme

While both of these record that they were updated on 1st November they do not yet record the key changes; that the extended CJRS applies to new entrants who do not need to have been previously furloughed, but just on your payroll as at 30 October 2020. Also, they do not record that any employees on your payroll as at 23rd September 2020 also qualify if you have made them redundant or they have stopped working for you.

There are many media reports that all confirm how the extended CJRS will work, but until we have the official government guidance to support that we are unable to be absolutely certain that the extended CJRS will work as reported. So far, its claimed that the extended CJRS will:

commence on 1 November 2020 meaning there is no gap from the previous CJRS that was due to end on 31st October;
pay 80% of wages for employees up to a cap of £2,500 per month;
not pay NIC or pension contributions, so you, as employers will need to pay this;
not prevent any topping up, so you are free to top-up your furloughed employees’ wages beyond 80% for hours not worked (but are not required to do so);
allow your staff to work flexibly and on a part-time basis with them being part furloughed for hours they cannot work. You will have to pay their wages for hours worked and any NIC or pension contributions on all wages;
we think, be open to new entrants not previously furloughed provided they were on your payroll on 30th October 2020 (or 23rd September 2020 if they have stopped working for you);
delay the job support scheme that was due to start on 1st November – it has been postponed; and
run until December 2020 (although we don’t know if that’s early or late December; presumably it will coincide with the end of lockdown).

Whether you need to seek fresh agreement with staff you wish to furlough will probably depend on whether an employee has come off furlough or remained furloughed up to 31st October 2020. If you are extending it, a simple extension letter to the previous agreement should be sufficient. If you are entering into a new agreement then a fresh letter might be best to record compliance with the new rules (once we officially know what they are).

We expect that many of the former CJRS rules will continue to apply meaning that you cannot allow anyone on furlough leave to work for you (but they can undertake training or voluntary work) and you need to keep written records of the arrangements in place for six years.

If you would like any further information or want to discuss any of these issues then please contact the writer, Emily Kidd, via ek@kilgannonlaw.co.uk or on 01483 388 900 .

Kilgannon & Partners LLP is a specialist employment law firm where our experienced employment law partners offer practical, prompt and professional employment law and HR advice.

How will bullies cope in a virtual workplace?

Wed, 21 Oct 2020 12:21:00 GMT

How will bullies cope in a virtual workplace?

Don’t worry, we are not supporting bullies nor condoning such behaviour. Instead, we are looking at what employers need to consider with remote working becoming more commonplace and how negative workplace behaviour may transcend the ‘new normal’.

According to ACAS, bullying is

“ …behaviour from a person or group that's unwanted and makes you feel uncomfortable, including feeling:

● frightened ('intimidated')

● less respected or put down ('degraded')

● you’re made fun of and it makes you feel uncomfortable ('humiliated')

● upset (insulted or 'offended')

Examples of bullying in the workplace could include:

● someone has spread a false rumour about you

● someone keeps putting you down in meetings

● your boss does not let you go on training courses but they allow everyone else to

● your boss keeps giving you heavier workloads than everyone else

● your team never lets you join social events…”

When bullying occurs, the victim is unable to pursue a claim for just bullying, as there is no free-standing right to do so. Instead the victim has a few options as to how to react, including:

● claiming discrimination if s/he can show that the treatment amounts to discrimination and is occurring because of a protected characteristic (age, race, gender etc). If so, the claim is likely to be one of harassment; and/or

● resigning and claim constructive unfair dismissal, but two years’ service is required to claim this in the absence of discrimination.

We often advise on issues where there are allegations of bullying and, for those who have been subjected to it, the impact is often severe, particularly, on their well-being and mental health.

Historically, this will have traditionally occurred in the workplace. As such, that has greater chances of being witnessed and anyone who witnesses such behaviour will only have less respect for the employer if it is not dealt with swiftly and effectively. Once staff know it is happening, the undercurrent can have a significant and negative impact on businesses; particularly if those colleagues decide to leave because of the behaviours they witness.

With increased remote working we would like to think that there is less scope for bullies to operate as they are likely to have less face-to-face interaction with their victims. However, we are concerned that such behaviour will not reduce and, if anything, with staff working from home it may become discreet and harder to prove as there will be fewer witnesses in the absence of colleagues working together in an office/workplace environment.

With increased remote working there remain opportunities for bullying to occur whether by text message, video conference, email or telephone calls. There can still be offence caused with members of staff being intimidated or degraded or even given a heavier workload compared to colleagues.

But remote working may create greater opportunities for individuals to be able to evidence the bullying. While not condoned, it is probably easier for conversations to be covertly recorded. Further, where people are working from home, other members of the family/household may see or witness the behaviour and be able to intervene and speak up without fear of losing their job. If more occurs by text or email, there will be a written record again making it easier to evidence.

So, what can businesses do?

There are several steps that employers can take. These include:

● Providing training.

o Training can be to all staff on issues of diversity, including bullying and harassment.

o It can also be separate training for managers to help them understand what amounts to bullying and to encourage the avoidance of such behavioural traits.

● Managers and people teams can undertake more regular check-ins with staff; to see how they are and to check on their well-being.

● There could be increased appraisals/reviews, but with a wider number of people from the employer who may be able to encourage such issues to be raised.

● Employers could keep a closer eye on those with a known tendency for “strong management” to ensure they are behaving appropriately.

● Businesses can review their policies with particular focus on their culture and how they propose to embrace the new normal and what additional steps and measures they can take for the protection of their staff. Culture change is very difficult to get right, but if one of openness can be encouraged, employees may feel safer about raising concerns.

● Employees can put in place confidential helpline or employee assistance programs where staff can take and seek confidential support at the cost of the employer but without the employer being made aware. This may allow staff to see that the behaviour is wrong and give them confidence to raise the issue.

● Businesses can look at introducing new technology that helps track and measure employees’ engagement and well-being. We have recently seen a few apps that measure staff engagement, and they allow employers to quickly and easily identify areas of the business that may be a concern.

● While an extreme example, the business may want to record telephone calls between certain staff members for “training and monitoring purposes” if they know this is a discrete issue. By doing so, as a one-off, the verbal discussions may show that there is inappropriate behaviour happening. Of course, that will be difficult or, more likely, impossible, if staff are using personal devices to work from home.

From our perspective, what is certain is that bullying and harassment in the workplace is toxic.

With fewer staff working together in an office it may see bullies’ behaviour evolve and continue in a different way. They could, possibly, take advantage of colleagues being in isolation and, with staff being at home, any feeling of isolation may only intensify.

Protecting employees’ well-being is key for many employers and being alive to issues like this should help ensure they are quickly identified and avoided. After all, we are not concerned by how bullies may cope in a virtual workplace, but how their victims will.

If any of the issues discussed above are a concern to you, or if you would like specific advice, please contact the writer, Matthew Kilgannon, via mk@kilgannonlaw.co.uk or on 01483 388 901 .

Kilgannon & Partners LLP is a specialist employment law firm where our experienced employment law partners offer practical, prompt and professional employment law and HR advice.