September HR & Employment Law Update

Who is with me, who is relieved the summer holidays are over. Don’t get me wrong I have had an amazing time with my daughters, but they are ready to go back to school and I am ready for them to go back.

From a work perspective, I find people put their HR queries on hold in the summer – do you find the same? Do you put yours on hold? I have been helping my clients with training of Supervisors and some misconduct both with positive outcomes which is always great.

My workshop is this month on Building Bridges and Embracing Equality and Diversity in the workplace, link here for you Buy tickets – Building Bridges - Embracing Equality and Inclusion in the workplace – Cotswold Park Barns, Wed 20 Sep 2023 9:30 AM - 2:30 PM ( tickettailor.com )

Be great to see you there.

Big Brother is watching you

The hotly debated topic of hybrid working now enters new and potentially dangerous ground with more and more companies starting to monitor the attendance and productivity of their employees. A recent report from the governments Culture, Media and Sports Committee highlighted concerns that businesses may be using the advancing methods of AI to monitor staff without their consent and raised this as a potential red flag as it may lead to feelings of mistrust and anxiety from employees.?

According to a TUC poll that was carried out last year, at least 60% of employees have said that they have been subjected to some form of workplace surveillance and monitoring via communication tools such as Microsoft Teams.

With the increasing use of AI and other rapidly developing technology, it is important that businesses tread with caution when using surveillance on their employees. Any employees who may ‘appear’ to be guilty of any wrongdoing still need to be consulted with on an individual basis and not automatically have disciplinary action taken against them.

Appeal for further whistleblowing protection

The horrifying news about serial killer Lucy Letby, who was recently convicted and given a whole of life sentence for murdering innocent pre-term babies in her care has distressed everyone across the UK. One thing many have found hard to comprehend was that it seems senior members of NHS clinical staff repeatedly raised serious concerns about her but were ignored for such a long time and were even threatened with their jobs.

Now, the trade union Hospital Consultants and Specialists Association (HCSA), have called for an establishment of an independent statutory body to monitor the treatment of those who raise safety concerns or ‘whistle blow’. Clearly this case is extreme, but it’s important that anyone who has concerns that might fall under whistleblowing feel comfortable to raise them. Whistleblowers do have legal protection anyway but, having a whistleblowing policy in place will help businesses promote a culture where employees feel safe and encourage them to speak to management about any serious concerns.

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Legal Updates

Bus driver dismissal was unfair despite losing his licence

A bus driver recently won a claim for unfair dismissal after being sacked on medical grounds after a stroke cause him to lose his PCV licence.

After a period of rehabilitation, he returned to work, but was unable to carry out his normal duties as his PCV licence had been revoked due to his stroke, and he could not reapply until 12 months later.

Despite an occupational health report stating the employee could undertake any duty short of driving a bus or lorry, he was eventually dismissed on medical grounds.

The tribunal ruled that had the employee been dismissed for not having a PCV licence , which was not only a legal requirement but also part of his terms of employment, the dismissal would have been reasonable. But? the dismissal on medical grounds was outside the band of reasonable responses and therefore deemed unfair.

This case demonstrates how crucial it is to get the ‘right’ reason for dismissal – it seems obviously but in this case ill health capability was not the actual reason. Many managers are less familiar with ‘statutory illegality’ (meaning it would be breaking the law to continue to employ the individual) and ‘SOSR’ (Some Other Substantial Reason – a catch all where dismissal doesn’t fit into another category but is reasonable in the circumstances), but taking advice prior to dismissal to make sure you’re getting things right will help avoid this kind of expensive mistake.

Unfairly dismissed for removing a work-related app from a personal phone

In this? case an online news editor was dismissed because she refused to download a work app onto her personal phone because she was ‘disturbed by amount of messages, day and night’ that were coming via the app. The employer also refused to supply the employee with a work phone to avoid this issue.

The tribunal not only found the employer had failed to conduct a ‘proper and adequate’ investigation in this case, but they also specifically mentioned that ‘procedural failings’ led to the result of the dismissal being unfair. This included not advising the employee that her job was at stake.

Businesses can legitimately ask employees to use their personal mobiles for work purposes such as using specific apps to log into work emails, however, it is important that a Bring Your Own Device (BYOD) policy is in place to protect both the business and the employees and avoid any potential claims, and if you have employees resistant to using their own phone, you may need to provide them with a separate device.

Other stuff

A recent study by Pearn Kandola has found that 40% of employees say they do not see weight discrimination as a ‘serious issue’ and as a result would not report this to HR. The study collected data from over 1400 employees and found that over 70% of employees believed that weight discrimination was a growing problem in their workplace.??

Employee Assistance Programmes are increasingly being used for legal support not just mental wellbeing a report from Towergate Health & Protection has found. The report stated that the most common reason for calling the EAP helpline was for employment issues, divorce and separation and other civil action advice showing how vital this benefit is for employees.

A new research study by Thomson Reuters reports that 74% of UK employees working in the legal, tax, risk and compliance sector believe that more work will be carried out by people who don’t have formal qualifications.