TFFs ('Top Fortnightly Facts')
Every fortnight, the Knights plc Employment Team publish their Top Fortnightly Facts (TFFs), providing a summary of the key updates in the employment and HR world. Looking, first at “What?” the fact is and then considering the “So what?” point that flows from that fact. Here are our TFFS for the period ending 25 June 2021.
COVID self-isolation: the government releases list of workers exempt from self-isolation
What?
The Government has released a list of workers who may be exempt from self-isolation if they are ‘pinged’ by the NHS track and trace app.?The ‘pingdemic’ has led to many sectors facing staff shortages as a result of staff having to self-isolate, with over 610,000 people told to self-isolate in the week between 8 - 15 July.
Amongst those hardest hit from staff self-isolating are the workplace services (cleaning, shop workers and caterers), manufacturing and engineering and transport and logistics sectors.
The list released by the Government on 22 June includes:
This, however, is not a blanket exemption for all staff employed in these sectors and will only apply to named workers if their employer has received a letter from the relevant Government department.??Government guidance states that there may be critical roles in other sectors which may be agreed on a case-by-case basis and in exceptional circumstances.
Instead, employees who are ‘pinged’ will have to provide a negative test before they return to work.?A positive test will result in self-isolation.
So what?
This will be a welcome introduction for many employers who have struggled with staff shortages as a result of self-isolation.?As previously mentioned, this is not a blanket exemption for all staff in the listed sectors, and employers should await confirmation from the government as to which employees will be caught by the exemption.
Employers still have a duty to take reasonable steps to set up a safe working environment and that will include requiring employees to self-isolate where required to do so, or to provide a negative test results.?
Sexual harassment in the workplace: Government proposes key changes to employer duties
What?
The Government has, earlier this week, published its response to the consultation on the reform to sexual harassment in the workplace and has committed to introduce some important changes (when “parliamentary time allows”).
So what?
The government will legislate for a new, positive duty requiring employers to prevent sexual harassment at work. Currently, an employer is only liable if an incident of sexual harassment occurs and they have failed to take preventative steps. The proposed new law will shift the point of liability to emphasise the importance of taking necessary steps before an event occurs. Therefore, under the proposed duty, employers would still be required to take ‘all reasonable steps’ to prevent sexual harassment in their workplace – just as they are now – but they could potentially be held to account for failing to take these actions without the need for an incident to have occurred. More guidance is clearly required so that employers know what is expected of them. To this point, the Government has said that it will support the Equality and Human Rights Commission (EHRC) in developing a statutory code of practice which will complement the technical guidance published by the EHRC in January 2020.
The government will legislate for explicit protections from third-party harassment. This will mean that employers are held liable for sexual harassment by third parties (e.g. customers and clients) in their workplace and they will be required to have taken “all steps” to have prevented it from happening. .A key question is whether employers will only be liable when an incident of sexual harassment by a third party occurs or whether they will be liable before that stage if they have not taken “all reasonable” steps to prevent it occurring (like what is being proposed for sexual harassment cases involving fellow employees as above). The Government has said that it will work with stakeholders to shape the protection but it does intend to replicate the “all reasonable steps” requirement currently set out in the Equality Act.
The government will “look closely” at extending the time limit for bringing a claim under the Equality Act 2010 from 3 months to 6 months. This is on the basis that the trauma experienced can result in a significant delay in an individual deciding to bring a claim. That said, it is clear that the Government does not want to do anything that will overload the Tribunal system any further as it is already drowning in caseloads. The Government is also mindful that if the time limit is extended for sexual harassment claims under the Equality Act it should also extend the time limit for other Equality Act claims, which then will be a huge change. It says that it does not want to create confusion if the time limit is extended only for sexual harassment claims (although we note that the time limit for equal pay cases is already 6 months and also note that the Tribunal already has the power to allow out-of-time claims where it is considered “just and equitable” to do so which, we’d say, would likely include a scenario where a claimant had been too badly traumatised to submit a claim within the 3 month deadline).
Strangely, the Government has said that they do not consider that the same protections should apply to ‘pure’ volunteers. They say that it is clearly right that an individual who gives their time for free to support their community or an issue they care about should be protected from harassment, discrimination and victimisation. However, the Government considers that extending protections to cover people carrying out ad hoc, informal volunteering, or those supporting small, volunteer-led organisations could create a disproportionate level of liability and difficulties for the organisation, which could outweigh the service they provide.
“Interns” are not specifically mentioned either in the new proposals but the Government’s view is that they are caught already by virtue of being a worker.
So what can you be doing now?
The proposed changes to the law may take a while to come into force and so, for now, it is important that you are running the necessary equality and diversity training on a regular basis to all staff and new joiners (remember the case we mentioned in an earlier TFFs where training 2 years ago was held to be stale by the tribunal). We have a package of training available and so do let us know if you would like to discuss it.
The 3rd party harassment changes are more difficult to manage (especially as you can’t train all 3rd parties you come into contact with!) so it’s more a case of educating employees of what to do if they encounter an incident (themselves or are aware of something happening to others) and putting all necessary messages out to the public, suppliers, agency workers, contractors etc. that you do not tolerate inappropriate behaviour, discrimination, harassment etc (e.g. messages on your website or in your offices). If something happens you need to ensure you deal with it promptly and have a process in place to deal with it. We’ve helped clients with issues involving 3rd parties and it is much more tricky.
Remember harassment under the Equality Act has a very specific meaning: it is when someone’s behaviour has the “purpose or effect” of “violating their dignity” or “otherwise creates an intimidating, hostile, degrading, humiliating or offensive environment” and is based on one of the protected characteristics e.g. their sex, race, religion or belief etc. This doesn’t mean you don’t have to deal with harassment that doesn’t relate to these things as it would be good practice to do so as well.?
We suggest that, in extreme cases, you should support any staff member in reporting it to the police. Offering staff access to appropriate counselling and support (e.g. employee assistance programmes) is also important for staff who have experienced it.
Whilst maybe obvious, it is also important to remember that employees who report harassment must not be victimised i.e. subjected to a detriment afterwards for reporting it (which can include giving them the cold shoulder, not putting them forward for promotion etc). We expect you will not do anything that will constitute harassment but it is worth being aware that they may look to allege this if something happens afterwards that they don’t like (so ensure you keep notes so you have valid reasons for the decisions).?
Are your policies sufficient? Are any changes needed to them to deal with any of the above?
Finally, do you ever conduct surveys to ascertain if staff ever suffer abuse or harassment from third parties? If not, that may be useful to gather the scale and extent (if any) of third party harassment.
Hybrid working: what does ACAS have to say?
What?
As many employers look to find a roadmap to encourage employees back to working in offices again, ACAS has published its own advice on the subject of hybrid working. All employers will understand the concept (if not the practice) of flexible working and, in reality, hybrid working is simply a type of flexible working.
ACAS describes hybrid working as being “a type of flexible working where an employee splits their time between the workplace and working remotely”.
So what?
We know that many of our clients are looking at hybrid working policies. Many have found that productivity has been maintained or has even increased during lockdown with employees working from home. If it’s working for you, productivity is not affected and your employees are largely happy working from home, why force a full-scale return to the office? Apart from the obvious risks of Covid spreading around the office as attendance increases, the summer months might not be the time to be imposing such a return, given school holidays and issues around childcare among other things.
Hybrid working policy
It’s sensible, therefore, to use the summer months to evaluate how a hybrid working policy might work for you going forward indefinitely. Unsurprisingly, the ACAS advice is for employers to consult before introducing such a policy. For example, not all employees might be enamoured with, say, a 4:1 day split of working from home compared to the office. Some employees may prefer working a 3:2 split or working in the office 5 days a week but for fewer hours each day because of their own individual circumstances. One approach would be to set out an expectation that everyone works 60% of their working week in the office without stipulating what days or hours that would involve.?Interestingly, we have found that asking employees what they want is not always helpful (since some will say that they want to work from home all the time which is not going to be workable). Instead, it is worth asking them a slightly different question which is: what duties are you not able to do at home? From that, you can then ascertain what may work from team to team depending on their different work duties.
We have heard a lot recently about the potential impact of new working arrangements on the need for office space. Some employers will be considering downgrading their office space requirements, which, in turn, would mean having to impose working from home in order to implement, effectively, hot-desking. This is clearly not going to suit everyone. Those whose living arrangements do not easily support semi-permanent working from home will doubtless struggle with such an imposition. Not only that, those who need face-to-face support, particularly at the front end of their careers, simply will not get to learn what they need to from shadowing colleagues in the office. Similarly, those experienced colleagues will not be able to offer the same level of support whilst they themselves are absent from the workplace.
ACAS recommends that a hybrid working policy should set an outline of how things work and set limits whilst still allowing flexibility - and that’s got to be right. There’s no point in forming a prescriptive one-size-fits-all approach. At the very least, a hybrid working policy should provide a framework of how staff will be supported in terms of wellbeing (mental health being just as important as physical issues), health and safety, cyber security and training. Questions to ask yourselves as employers drafting a policy include how and how often will we communicate, how will we provide a seamless service for our customer and clients, how will we teambuild, what are our expectations in terms of behaviours??????
As with any consultation, you should be prepared to listen to views, but not everyone has to be catered for in a hybrid working policy (flexible working requests are still a thing and can be used where an individual’s circumstances are not covered by a hybrid working policy!). However, dangers lurk where employees are not (or perceive that they are not) being treated fairly. ACAS use the examples of not affording the same training and development opportunities to all, regardless of their place of work and, for example, refusing to allow a female colleague to work from home under a hybrid policy due to the assumption that she will be distracted by her children. However, the fact that the conversation has turned to hybrid working policies
领英推荐
Unfair dismissal: Teacher sacked over indecent images of children was fairly dismissed
What?
On 7 July 2021, the Court of Session held that a teacher who had been arrested, but not charged, for having indecent images of children, was fairly dismissed for some other substantial reason.
The teacher had incident images of children on his home PC, and he was arrested along with his son who also had access to the PC.?Charges against both were subsequently dropped.
The school carried out an investigation and the teacher was dismissed.?The reason being that although he was not charged by the police as it could not be proved that he downloaded the images, there was a chance that he may have done, and that was a safeguarding and reputational concern which was considered to be a significant breakdown in trust.
The teacher claimed unfair dismissal and the Employment Tribunal found that he had been dismissed for some other substantial reason.?On appeal, the Employment Appeal Tribunal found fault with the dismissal, finding that the ‘SOSR’ grounds had not been clearly put.
Finally, the Court of Session decided that the EAT had erred and that it was reasonable, in the circumstances, for the school (or any employer) to dismiss the teacher (or any employee), who may be innocent, if there are genuine and substantial grounds to justify the dismissal.?
Read the full judgement here.
So what?
This is a particularly extreme example of a dismissal following an arrest but no charge, given the nature of the charges and the Claimant’s role as a teacher, but it does provide a reminder of the leeway available for employers who face similar issues.
This decision could be useful for employers in similar sectors, such as social care or other care or educational establishments, but may be harder to argue in others where there are no specific caring or safeguarding responsibilities.?An arrest, but no charge, for certain crimes may not reach the threshold of reasonableness and could lead employers open to unfair dismissal claims if they dismiss.?For example, an arrest, but no charge, for being drunk and disorderly for a person working as a salesman does not have the same levels of severity of the situation in the case above, and a dismissal would more than likely be unfair.
As such, this ruling does not negate the need for a thorough investigation and a reasonable disciplinary process.?The Court of Session ruled in favour of the school as the ground for dismissal - some other substantial reason - was entirely justified in the circumstances, bearing in mind the school’s caring responsibilities and that fact that they had genuine and substantial grounds to justify the dismissal.
COVID-19 vaccination to be made mandatory for care home workers in the UK.
What?
Whilst the majority of care home workers have now been vaccinated, the Government has said that only 65% of older care homes in England are currently meeting the minimum level of staff uptake for one dose needed to reduce the risk of outbreaks in these high-risk care settings- falling to 44% of care homes in London. The Social Care Working Group for Emergencies (SAGE) advises that an uptake rate for one dose of 80% in staff and 90% in residents in each individual care home setting is needed to provide a minimum level of protection against outbreaks as COVID.
In June 2021, the government confirmed that it would seek to make COVID-19 vaccinations compulsory for care home staff in England.?Read our June update here.
It has now been confirmed that new Regulations (still in draft form) will amend the Health and Social Care Act 2008 to provide that care homes (establishments providing residential accommodation with nursing or personal care) must ensure that non-residents over the age of 18 provide evidence of COVID-19 vaccination before they are allowed to enter the care home unless they are able to provide evidence of clinical reasons for not being vaccinated.?It will apply to all workers employed directly by the care home or care home provider (on a full-time or part-time basis), those employed by an agency and deployed by the care home, and volunteers deployed in the care home. Those coming into care homes to do other work (e.g. hairdressers and beauticians, tradespeople and CQC inspectors) will also have to follow these new regulations.
This decision was made following an extensive public consultation with thousands of staff, providers, residents and their families. Further consultation will be launched on whether to extend to other health and social care settings. This is a complex issue and the government is looking for a wide range of perspectives and whether this should be extended, and if so how.
Under the Regulations, unvaccinated persons may still be able to enter care homes in limited circumstances, which include: providing emergency assistance; to visit a resident of the home as a friend or family; to visit a resident who is dying; or to carry out emergency maintenance.?
The Regulations have been approved by both Houses of Parliament and will continue to be made effective by law in October. Once made effective, the new rules will come in to force 16 weeks later, which represents a ‘grace period’ to allow care homes and their employees opportunity to make appropriate arrangements and to have both doses of the vaccine unless they have a medical exemption.
So what?
It is clear that this amendment is going to have a significant impact on care homes and their staff in the UK (and wider afield, if extended more widely).?Set out below are our top considerations at this early stage if you are an employer in the care sector.
Key considerations for care home employers:
This is likely to be a difficult period of time of care homes and their employees and care should be taken at every step as any dismissal brings a risk of an unfair dismissal.?If you require specific advice or planning guidance, please get in touch.
Discrimination: shifting the burden of proof?
What?
Hot off the press: about an hour ago, the Supreme Court handed down its judgement in the case of Royal Mail Group Ltd v Efobi, and considered the burden of proof in discrimination claims and adverse inference in the absence of the Respondent’s witnesses.
Mr Efobi, who was a black Nigerian man and a citizen of the Republic of Ireland.?He worked as a postman for RMG, but wanted to move in the management or IT departments.?He held graduate and post-graduate qualifications in information systems.?He claimed against Royal Mail Group (RMG) for harassment, victimisation, and direct and indirect race discrimination following 22 unsuccessful job applications.?
The Employment Tribunal rejected Mr Efobi’s claim, but the Employment Appeal Tribunal allowed his appeal on the grounds that the Employment Tribunal had wrongly interpreted the burden of proof elements of the Equality Act 2010 (EqA) and had made errors of law in assessing the evidence.?RMG were granted permission to appeal the decision to the Supreme Court, and chose to do so.
Mr Efobi argued that the EqA (which repealed The Race relations Act 1976), changed the two-stage burden of proof test in discrimination claims.?The two- stage test is:
Mr Efobi argued that a slight change in wording in the EqA changed the law so that there is no longer any burden on a claimant to prove anything at first instance, essentially making it a one stage test for the Tribunal to consider all the evidence placed before it neutrally.
Alongside this argument, Mr Efobi asked the Tribunal to draw adverse inference from RMG failing to call and of the employees involved in his failed applications as witnesses, and instead called two managers who knew RMG’s recruitment processes.?
Unsurprisingly, the Supreme Court rejected both of Mr Efobi’s representations.?
In relation to the burden of proof test, the Supreme Court asserted that there had been no substantive change in law under the EqA, going on to say that the first stage of the two-stage test involved the Tribunal considering all of the evidence neutrally.?Although the burden of proof is on the Claimant at that stage, the Tribunal will also consider evidence adduced by the Respondent to rebut or undermine the Claimant’s case.?The Claimant must still show that, on the balance of probabilities and in the absence of any other explanation, the unlawful act of discrimination can be inferred.
Contact us
Should you require specialised legal advice on any point in this document or any other employment law assistance, please contact a member of the Knights Employment Team at [email protected] and we will be happy to assist you.
This document is provided for information purposes only. The list of considerations is not exhaustive and does not constitute legal advice.
Employment Lawyer - Knights based in York
3 年Thanks Tom for sharing your Top Fortnightly Facts!