[et_pb_section fb_built=”1″ _builder_version=”3.0.100″ background_image=”http://davidk423.sg-host.com/wp-content/uploads/2017/09/bdbf_final-stages-1-4-1.jpg” custom_padding=”|||” global_module=”2165″ saved_tabs=”all” global_colors_info=”{}”][et_pb_row _builder_version=”4.7.4″ min_height=”66.4px” custom_padding=”50px||||false|false” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” text_font=”|700|||||||” text_font_size=”27px” background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF90aXRsZSIsInNldHRpbmdzIjp7ImJlZm9yZSI6IiIsImFmdGVyIjoiIn19@[/et_pb_text][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” _module_preset=”default” background_layout=”dark” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF9kYXRlIiwic2V0dGluZ3MiOnsiYmVmb3JlIjoiIiwiYWZ0ZXIiOiIiLCJkYXRlX2Zvcm1hdCI6ImRlZmF1bHQiLCJjdXN0b21fZGF0ZV9mb3JtYXQiOiIifX0=@[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”3.22.3″ global_colors_info=”{}”][et_pb_row admin_label=”row” _builder_version=”4.7.4″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.14.2″ text_orientation=”justified” use_border_color=”off” global_colors_info=”{}”]

As we approach what we hope is the final Christmas cursed by COVID-chaos and enforced homeworking, Associate, James Hockley takes a light-hearted look back over the last two years and remembers some of the Zoom stories that grabbed our attention for all the wrong reasons. These stories variously caused shock, laughter and nationwide acts of communal face-palming, yet they all shared the same lesson – by careful what you do, say or show on camera, as it may come back to haunt you!

Jackie Weaver: You have no authority

The start of 2021 witnessed the sudden rise to stardom of Jackie Weaver. “You have no authority, Jackie Weaver” became emblazoned on t-shirts, pumped out across the radio waves, and the talking point in many Zoom coffees. Leaving aside any employment or data protection issues when disseminating recordings of private meetings generally, I, for one, am glad this verbal dual made its way into our living rooms. What better way to get us through the cold, dark winter months than to witness a modern-day Gladiatorial battle set in none other than the Handforth Parish Council. (Did images of Geraldine Grainger, Alice Tinker, Hugo Horton and Jim Trotter spring to anybody else’s mind as they watched the drama unfold?).  Lesson? If you have (rightful) control over the Zoom eject button then don’t be afraid to use it – especially if a colleague has the temerity to question your authority.

The oversharing Spanish showerer

Not to be outdone by a British council in the year that Brexit happened, Torrelavega municipal council in Spain showed that Spanish councils, too, can get down and dirty… or, rather, up and clean. In a bid to kill two birds with one stone, councillor Bernardo Bustillo dropped his pantalones and jumped in the shower whilst listening in to a council meeting that was being livestreamed. The problem for Bernardo was that he had failed to turn off his video and, in so doing, became the real butt of the joke. Whilst his colleagues looked on in horror and tried to alert him via calls and messages to his phone, this wave of panic was drowned out by splashes of water behind a partially frosted pane of glass. After finishing cleaning behind his ears, real horror struck as Bernardo climbed out in full view. All jokes aside, poor Bernardo was left offering to tender his resignation following Shower-gate. Lesson? Always check and double check that the video is turned off and the microphone muted when showering by stealth.

The Texan kitty

Then, there was the wide-eyed, perplexed looking kitten, otherwise known as Rod Ponton, who stole our hearts from across the pond in a way no other Texan State Prosecutor has done before or since. Judge Roy Ferguson of Texas’s 394^th judicial district managed to control his laughter when Ponton attempted to make his submissions through his feline-faced friend. “I believe you have a filter turned on in the video settings. You might want to…” said the judge, at which point the desperate looking kitten interjected: “Can you hear me, judge?”. In case any doubt remained, Ponton went on to exclaim most seriously: “I’m here live. I’m not a cat”. Lesson? Do be careful when using filters and be sure to get the judge’s acknowledgement that, despite appearances, you are, indeed, not a cat!

Mrs Potato Head

Lizet Ocampo provided a further tale of filter-failure in the early stages of the pandemic as she appeared as a potato head for the duration of her Zoom meeting with colleagues. In much the same way as the Texan Kitty, the potato head was surprisingly good at capturing Lizet’s emotions much to her colleagues’ amusement. She had downloaded some funny filters for virtual happy hours she attended the weekend before.  What was appropriate for a Saturday afternoon social was not necessarily right for a Monday morning meeting with work colleagues, however. Fortunately, everyone saw the funny side and one of Lizet’s team went on to share the image on Twitter. Not surprisingly, the tweet went viral leaving Lizet to tackle the root of the issue head on by tweeting: “I yam potato boss”.  Lesson? If using your Zoom account for work and leisure purposes, always make sure you know how to change your settings back so that you do not come unstuck; nobody wants to talk to a (sack of) spud(s) on a Monday morning!

Thoughts for the year ahead…

We hope this glance back at a few of the funny yet embarrassing Zoom stories from the last two years provides you with an element of light-hearted relief as we go off on our Christmas breaks. Whilst these stories are real life examples of what, with distance, can be seen as moments of comic gold, they do remind us of the need to be careful not to do, say or show anything that we would not do, say or show if we were physically present in a meeting room.

For all the great benefits that technology has afforded us during the pandemic years, we hope that in 2022 we can meet many more of you again in person rather than via a computer screen. We will leave it to your judgement as to whether you wish to come dressed as a cat or a potato!

[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_row _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.26.6″ global_colors_info=”{}”][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section fb_built=”1″ _builder_version=”3.0.100″ background_image=”http://davidk423.sg-host.com/wp-content/uploads/2017/09/bdbf_final-stages-1-4-1.jpg” custom_padding=”|||” global_module=”2165″ saved_tabs=”all” global_colors_info=”{}”][et_pb_row _builder_version=”4.7.4″ min_height=”66.4px” custom_padding=”50px||||false|false” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” text_font=”|700|||||||” text_font_size=”27px” background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF90aXRsZSIsInNldHRpbmdzIjp7ImJlZm9yZSI6IiIsImFmdGVyIjoiIn19@[/et_pb_text][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” _module_preset=”default” background_layout=”dark” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF9kYXRlIiwic2V0dGluZ3MiOnsiYmVmb3JlIjoiIiwiYWZ0ZXIiOiIiLCJkYXRlX2Zvcm1hdCI6ImRlZmF1bHQiLCJjdXN0b21fZGF0ZV9mb3JtYXQiOiIifX0=@[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”3.22.3″ global_colors_info=”{}”][et_pb_row admin_label=”row” _builder_version=”4.7.4″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.14.2″ text_orientation=”justified” hover_enabled=”0″ use_border_color=”off” global_colors_info=”{}” sticky_enabled=”0″]

What are the employment law highlights from the last 12 months?   We’ve picked out some of the most interesting cases and other developments from 2021 for employers to reflect on as the year draws to a close. 

COVID-19

• Vaccines and the workforce: employers had to grapple with the tricky issue of whether to require staff to be vaccinated against COVID-19. Introducing such a requirement raises the risk of unfair dismissal and discrimination claims, as well as raising a number of practical issues such as allowing time off to be vaccinated, how post-vaccination sickness is treated and the data protection implications of holding vaccination status information.  You can read more about all of these issues in our two-part series of briefings here and here.  You can also catch up on our “No Jab, No Job?” webinar here.

• COVID-related dismissals: claims of unfair dismissal for COVID-related reasons began to appear for the first time, with the Employment Tribunals taking a relatively robust approach.  For example, in Kubilius v Kent Foods Limited the Tribunal held that an employee had been fairly dismissed for refusing to wear a face mask when attending a client’s premises.  You can read more about that decision here.  Also, in Rodgers v Leeds Laser Cutting Ltd the Tribunal decided that an employee had been fairly dismissed for refusing to attend work because he was worried about catching the virus and giving it to his children.  You can read more about that decision in our briefing here.   

• Furlough scheme extended and closed: the furlough scheme was due to close at the end of April.  Yet, in late March, the Chancellor announced that the scheme would be extended by five months and close on 30 September 2021. Throughout this extended period, furloughed employees remained entitled to be paid 80% of their normal wages for any furloughed hours, subject to the maximum cap of £2,500 per month.  It is not yet known whether the scheme would be resurrected in the event of further national lockdowns in 2022.  You can remind yourself of how the scheme operated and the impact of its closure in our guide to the scheme here.

• Hybrid working here to stay: as restrictions lifted on “Freedom Day” on 19 July 2021, many employers began to return staff to the workplace over the Summer and Autumn months. However, a full-time return was not on the cards, with the majority of employers preferring some form of hybrid working. This was recognised by Acas, who issued new guidance for employers on implementing hybrid working.  You can read more about this in our briefing here.   We also published some FAQs about the return to work and hybrid working here.   In the last few weeks, the CIPD has published its own practical guidance on hybrid working, which you can view here.

• The arrival of Omicron: just as life had begun to return to some semblance of normality, the virus mutated yet again, with the Omicron variant being identified as a cause for concern. You can read our initial briefing on what Omicron meant for office-based employers here (as the situation is fast-moving please do get in touch with us for advice on the latest position).

Equality

• Harassment: in the harassment sphere there were a couple of important decisions for employers to note this year. First, in the case of Driscoll v V&P Global Ltd and another, the EAT held for the first time that where an employee resigns in response to repudiatory conduct which constitutes or includes unlawful harassment under the Equality Act 2010, then the constructive dismissal itself is capable of amounting to an unlawful act of harassment.  You can read the EAT’s decision here.  Second, in the case of Allay (UK) Ltd v Gehlen the EAT held that an employer’s failure to provide regular and effective equality training meant that they could not rely on the “reasonable steps” defence to a race harassment claim.  You can read more about this decision in our briefing here.

• Sexual harassment: a report from the Fawcett Society revealed the continued prevalence of sexual harassment at work, despite the rise in hybrid working. You can read more about this report in our briefing here.  The Government also announced plans to reform sexual harassment laws to introduce a positive duty on employers to take all reasonable steps to prevent sexual harassment and reintroduce protection from third party harassment at work (e.g. harassment by a client or a contractor).  You can read more about these reforms in our briefing here.
   

• Sex discrimination and flexible working: this year we saw a spate of discrimination cases arising out of the refusal of flexible working patterns requested by working mothers.  In the case of Dobson v North Cumbria Integrated Care NHS Foundation Trust an employee and mother of three (including two disabled children) brought a discrimination claim after she was dismissed for refusing to work occasional weekends.  The EAT ruled that Tribunals must accept as fact that women still bear the primary burden of childcare responsibilities and this hinders their ability to work certain hours.  You can read more about this decision in our briefing here.  In the case of Keating v WH Smith Holdings Ltd the imposition of a Saturday working requirement on a single mother was held to be discriminatory and in Thomson v Scancrown Ltd t/a Manors a refusal to make modest adjustments to a maternity returner’s working hours was also said to be discriminatory.  You can read more about these decisions in our briefings here and here.

• Associative indirect disability discrimination: in another case concerning refusal of a flexible working pattern, an Employment Tribunal upheld a claim of associative indirect discrimination for the first time. In the case of Follows v Nationwide Building Society an employee refused to move from a hybrid working arrangement to an office-based working arrangement as she had caring responsibilities for her disabled mother.  Her refusal led to her dismissal.  The Tribunal held the requirement to work in the office full-time indirectly discriminated against the employee because of her association with a disabled person, even though she was not disabled herself.  You can read the Employment Tribunal’s decision here.

• Sex discrimination claims brought by men: 2021 saw two notable sex discrimination claims brought by men – with differing results. In the case of Price v Powys Council, the EAT held that it was not discriminatory to enhance pay for a female employee on adoption leave and not to do so for a male employee on shared parental leave.  You can find out why in our briefing here.   The male claimants in the case of Bayfield and Jenner v Wunderman Thompson (UK) Ltd were more successful.  Here, the Tribunal decided that the dismissal of two senior male employees amounted to sex discrimination, where the dismissals had followed the announcement of the employer’s high gender pay gap figures and a radical new approach to diversity within the business.  You can read more about this decision in our briefing here and you can also read Gareth Braham’s article in the ELA Briefing on this topic here.

• Gender critical beliefs are protected: in the high-profile case of Forstater v CGD Europe and others, the EAT held that gender critical beliefs, including beliefs that biological sex cannot be changed and is different to gender identity, are protected beliefs.Although the beliefs may be offensive to some and could even result in the harassment of trans persons in certain circumstances, they were protected under the right to freedom of thought, conscience and religion under the European Convention of Human Rights and as philosophical beliefs under the Equality Act 2010.  You can read more about this decision in our briefing here.

• Menopause and the workplace: the impact of the menopause on workers has been a hot topic this year. Two Parliamentary Inquiries were launched, with a view to introducing better legal protections for affected workers.  Further, a new report highlighted the severe impact of the menopause on those working in the financial services sector.  You can read more about these developments in our briefings here and here.   We also saw the second ever appellate decision on a claim concerning the menopause.  In the case of Rooney v Leicester City Council, the EAT held that an Employment Tribunal had been wrong to say that a woman suffering from a wide range of menopausal symptoms which affected her day to day life was not disabled for employment law purposes.  You can read more about this decision here.   If you would like a deep dive on menopause and the workplace, you can also listen to the podcast we recorded for Daniel Barnett’s “Employment Law Matters” podcast.
  

• Equal pay: the supermarket chain equal pay litigation continued in 2021, with David overcoming Goliath in two notable decisions. In Asda Stores Ltd v Brierley and ors the Supreme Court upheld a decision that a group of female retail store workers could compare themselves to a group of male distribution centre workers for the purposes of an equal pay claim, even though they worked at separate establishments.  In Tesco Stores Ltd v Element and ors, the EAT upheld an order for the employer to disclose documents and provide information relating to the alleged pay comparators’ contracts, job descriptions and pay.  It rejected the employer’s argument that the specific disclosure request amounted to a “fishing expedition”.   Both decisions will help claimants get equal pay claims off the ground.  You can read the decisions here and here.

• Pay reporting: having been suspended in 2020 due to the pandemic, gender pay gap reporting resumed in 2021, albeit that the reporting date was postponed from April to October.  You can read more about this in our briefing here.   Analysis by PwC of the most recent round of reports shows a small decline in the average median pay gap from 14.2% in 2017/8 to 13.1% in 2020/21.  By contrast, proposals to introduce ethnicity pay gap reporting appear to have stalled.  The Government consulted on the issue in 2019 but, to date, has failed to publish its response.  To mark this year’s Race Equality Week in February, we published a briefing summarising where things currently stand.

Employment status, contracts and policies

• Who is a worker? In Uber BV v Aslam, the Supreme Court upheld a decision that drivers working for Uber were workers and not self-employed contractors.   This decision is important for employers engaging contractors as it highlights the continued willingness of the Courts and Tribunals to scrutinise the way a relationship works in practice, regardless of contractual labels.  You can read more about this decision in our briefing here.    

• Reform of the IR35 regime: the way in which the IR35 rules operate in the private sector changed on 6 April 2021.  These reforms saw contractors lose the ability to determine their own tax status and placed the burden on those who engage them (often the end user).  You can remind yourself of the new framework and the action points for clients and contractors in our guide to the regime here.

• Changing terms and conditions: a survey conducted by the CIPD this year revealed that 22% of employers have made changes to their employees’ terms and conditions since the start of the COVID-19 pandemic, including to terms relating to place of work, hours of work and pay. Acas has published new guidance for employers on how to navigate changes to terms and conditions and they caution against the use of “fire and rehire” strategies. You can read more about this guidance in our briefing here.

• Holiday pay: in the case of Smith v Pimlico Plumbers the EAT decided that workers do not have a right to carry over holiday pay where they had taken unpaid annual leave. This contrasts with an earlier European Court decision where it was decided that workers are entitled to carry over unlimited annual leave which had not been taken because it was unpaid.  You can read the EAT’s decision here.   This decision is of importance for organisations who engage people they think of as independent contractors who may, in fact, have worker status.  It should be noted that this decision has been appealed to the Court of Appeal, with judgment expected in 2022.

• Flexible working reform: the Government published a consultation seeking views on proposals to expand and improve the flexible working framework.  The consultation looks at a range of proposals including whether the right to request flexible working should become a “Day 1” employment right and whether employers should be required to show they have considered alternatives before rejecting a flexible working request. The consultation closed on 1 December 2021 and the Government’s response is expected in 2022.  You can read more about the proposals in our briefing here.

• New right to carer’s leave: the Government announced that a new right for employees to take up to one week of unpaid carer’s leave per year will be introduced when Parliamentary time allows.  The right will be a “Day 1” employment right and employees will be able to take the leave to care for and/or make arrangements to provide care for a dependant who has a long-term care need. In due course, employers should put in place a policy to outline the new right and how staff can take such leave.  You can read more about the new right in our briefing here.

Whistleblowing

• New EU Whistleblowing Directive: the EU’s new Whistleblowing Directive is due to be implemented by EU Member States by 17 December 2021. Legislation must be introduced which, amongst other things, requires private employers with 50+ workers to establish internal reporting channels, keep a whistleblower’s identity confidential, confirm receipt of a whistleblower’s report within seven days, and provide a response within a reasonable period which should generally not exceed three months.  Post Brexit, the UK does not need to implement the Directive, however, it may elect to enhance whistleblowing laws to keep pace with the EU.  You can read more about the Directive in our briefing here.

• World Whistleblowers Day and tips for employers: World Whistleblowers Day fell on 23 June 2021 and looked at how best to support the mental wellbeing of whistleblowers.  What can employers do to empower staff to speak up about malpractice and protect whistleblowers from reprisals?  In our briefing here, we considered five actions employers could take to support whistleblowers within their business.

• Dismissing whistleblowers: in the case of Kong v Gulf International Bank (UK) Ltd the EAT handed down an employer-friendly decision, holding that in whistleblowing dismissal claims, it will rarely be the case that an employer will be fixed with the motives of anyone other than the person/s making the decision about whether to dismiss. The EAT also held that if a whistleblower is dismissed for the manner in which they conveyed or pursued their concern, this is genuinely separable from the raising of the concern itself and, as such, will not be automatically unfair.  We understand this decision is to be appealed to the Court of Appeal.  You can read the EAT’s decision here.

• Interim relief hearings should be heard in public: in the case of Queensgate Investments LLP v Millet the EAT ruled that applications for interim relief should be heard in public, save where an order is made to restrict publicity.  Interim relief is a powerful remedy open to claimants in a small number of specific claims for automatic unfair dismissal and is most commonly sought in whistleblowing dismissal claims.  This is the first appellant authority on this point, with BDBF acting for the successful respondent to the appeal.  You can read more about the EAT’s decision in our briefing here.

Termination

• Constructive unfair dismissal: in the case of Flatman v Essex County Council, the EAT held that a Tribunal misapplied the law by failing to identify whether a fundamental breach of contract occurred at any point up to the employee’s resignation. In so doing, it reaffirmed the principle that once a fundamental breach has been committed, it cannot be cured. You can read more about this decision in our briefing here.

• Misconduct: in the case of Daley v Vodafone Automotive Ltd an employee was dismissed for gross misconduct for behaving in an offensive, threatening and intimidating manner towards a colleague. During the disciplinary investigation, the employee disclosed that he took medication for depression which caused side effects including anger and frustration. The employer took no action in response to this information and went on to dismiss.  The EAT held that the Employment Tribunal should have considered whether the employer’s failure to probe the impact of the employee’s depression and medication rendered the dismissal process unfair.  You can read more about this decision in our briefing here.

• Redundancy and appeals: in the case of Gwynedd Council v Barratt the Court of Appeal confirmed that, on its own, the absence of a right to appeal against dismissal for redundancy does not make it unfair. However, it is one of the factors to be considered when determining the overall fairness of the dismissal. You can read more about this decision in our briefing here.

• Post-termination restrictions: the Government launched a consultation about regulating the use of non-compete restrictions in employment contracts.  Views were sought on proposals including requiring employers to pay compensation for the duration of non-compete restrictions or banning their use altogether.  The consultation closed on 26 February 2021 and the Government’s response is awaited. You can read BDBF’s response to the consultation here.

If you would like to know more about any of these developments please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_row _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.26.6″ global_colors_info=”{}”][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section fb_built=”1″ _builder_version=”3.0.100″ background_image=”http://davidk423.sg-host.com/wp-content/uploads/2017/09/bdbf_final-stages-1-4-1.jpg” custom_padding=”|||” global_module=”2165″ saved_tabs=”all” global_colors_info=”{}”][et_pb_row _builder_version=”4.7.4″ min_height=”66.4px” custom_padding=”50px||||false|false” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” text_font=”|700|||||||” text_font_size=”27px” background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF90aXRsZSIsInNldHRpbmdzIjp7ImJlZm9yZSI6IiIsImFmdGVyIjoiIn19@[/et_pb_text][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” _module_preset=”default” background_layout=”dark” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF9kYXRlIiwic2V0dGluZ3MiOnsiYmVmb3JlIjoiIiwiYWZ0ZXIiOiIiLCJkYXRlX2Zvcm1hdCI6ImRlZmF1bHQiLCJjdXN0b21fZGF0ZV9mb3JtYXQiOiIifX0=@[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”3.22.3″ global_colors_info=”{}”][et_pb_row admin_label=”row” _builder_version=”4.7.4″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.10.7″ text_orientation=”justified” hover_enabled=”0″ use_border_color=”off” global_colors_info=”{}” sticky_enabled=”0″]

What is currently known about the Omicron variant?

Omicron is a new COVID-19 variant, which was designated as a “variant of concern” by the World Health Organisation on 26 November 2021.  Omicron has several novel mutations which may affect the way it behaves.

It is not yet clear whether Omicron is more transmissible and/or causes more severe disease than other COVID-19 variants, such as Delta.  The press reports that Omicron was first identified in South Africa and the number of people testing positive for COVID-19 has risen in parts of the country affected by the new variant.  We understand from press reporting that early evidence also shows that there are increasing rates of hospitalisation in South Africa, although this could be due to the overall increase in infections as opposed to the severity of Omicron itself.

Reports show that there is some evidence to suggest that those who have previously been infected with COVID-19 could become re-infected more easily with Omicron, as compared to other variants.  It is also not yet clear how the existing COVID-19 vaccines will stand up to Omicron.  Further research is underway on all of these issues and more information should be available in the coming weeks.

Has Omicron reached the UK?

Yes.  At the time of writing, the UK has reported that 42 people have been infected with the Omicron variant.  Cases have been found across the country including in Buckinghamshire, Cambridgeshire, Clyde, Essex, Glasgow, Hertfordshire, Lanarkshire, Lancashire, London Merseyside, Norfolk, Northamptonshire, Nottinghamshire, Oxfordshire and Surrey.  Perhaps unsurprisingly, the majority of cases have been reported in London.

Does Omicron mean that office-based staff must now work from home?

Not necessarily.  “Freedom Day” on the 19 July 2021 was the date that the Government reached Step 4 of its roadmap for unwinding its COVID-19 restrictions.  From that date, office-based employers were able to return workers to the office on a gradual basis.  Many have done this over the late Summer and Autumn months, although many have opted to retain a degree of hybrid working.

The Autumn and Winter plan, published in September 2021, set out the measures the Government would adopt to manage COVID-19 through the Autumn and Winter months.  This plan included contingency measures – a “Plan B” – to be followed in the event of unsustainable pressure on the NHS.  This included a statement that the Government would consider asking people to work from home if they can, for a limited period.

Despite the concerns about Omicron, the Government has not yet triggered its Plan B measures.  Accordingly, employers in England may continue to ask staff to work in the office.  Indeed, the current version of the “Working Safely During Coronavirus Guidelines” (the Guidelines), updated on 2 December 2021, simply says that employers should assess the risks of staff working in the office and take action to manage the risk of COVID-19 spreading at work.

It is worth noting that the position is slightly different in Scotland.  On 29 November 2021, the Scottish First Minister, Nicola Sturgeon, said that employers should ensure that they are maximising home working.  The Scottish Health Secretary also advised people to work from home where possible.  However, this advice is guidance only and does not represent a legal prohibition on individuals leaving home to attend the workplace.

Above all, however, employers should remember that they must comply with their legal obligations to ensure the health, safety and welfare of staff and third parties so far as is reasonably practicable.  This is particularly important in relation to vulnerable and pregnant workers, who may require special measures to be taken to protect them, including allowing them to work from home.

Where staff do come into the office, should they wear face coverings to protect them from Omicron?

It’s not compulsory.  In response to Omicron the Government has re-introduced the requirement to wear face coverings in shops, premises that provide close contact services, transport hubs and on public transport.  However, there is no legal requirement to wear them in any other indoor setting, including offices.

However, the Guidelines state that office-based employers may wish to encourage the use of face coverings by workers particularly in areas where they come into contact with people they do not normally meet.  This is said to be especially important in enclosed and crowded spaces (for example, lifts and corridors).  Where masks are to be used, consideration should be given to making adjustments for disabled staff and to the fact that some people are unable to wear face coverings.

Have the rules on self-isolation changed?

Yes.  Guidance introduced on 16 August 2021 had exempted certain groups of people from the requirement to self-isolate where they have been in contact with a positive case of COVID-19.  These exempt groups are:

• those who are fully vaccinated against COVID-19 (i.e. at least 14 days have passed since the individual received all of the recommended doses of the vaccine);
• those aged below the age of 18 years and six months;
• those who have taken part or are currently part of an approved COVID-19 vaccine trial; or
• those who are unable to be vaccinated for medical reasons.

However, the rules on self-isolation have been changed in response to the Omicron variant.  Now, anyone who is a contact of a suspected or confirmed Omicron variant case (as notified by NHS Test and Trace) must self-isolate for ten days, even if they fall into one of the exempt categories listed above.  However, these groups will remain exempt from isolation where they have been in contact with a positive case of other COVID-19 variants.  You can read more about exemption from self-isolation here.

What’s the position for overseas travel?

Overseas travel is still possible to most places, but the rules have been tightened up in an attempt to stem the flow of Omicron into the UK.

First, all international arrivals into the UK must now take a private PCR test within two days of arrival and self-isolate until they receive a negative result.  If they receive a positive result, they must self-isolate for ten days.  These rules apply to all individuals, including the double-vaccinated (who had previously been able to take cheaper lateral flow tests and avoid self-isolation unless they tested positive).

Second, a number of African countries have been added to the UK’s “red list” for travel.  These are: South Africa, Angola, Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, Zambia and Zimbabwe.  Arrivals from these countries must take a PCR test before they travel to the UK and must quarantine in a managed hotel for ten days on arrival.

In light of these changes, employers may wish to limit overseas business travel for the time being, and certainly to the countries on the red list.

Do we need to cancel the Christmas party?

No, but some precautions should probably be considered.  Although there are no rules in place restricting indoor hospitality or socialising between households, the Head of the UK’s Health Security Agency (and former Deputy Chief Medical Officer), Jenny Harries, advised caution.  She said that people should “avoid socialising when [they] didn’t particularly need to”.  Yet the Prime Minister has said that Christmas parties do not need to be cancelled and that there will be no change to the advice about how people live their lives.

A sensible approach would be to consult with staff to see what they would like to do.  One option might be to hold several smaller team events, rather than a whole office event.  Where events do go ahead, safety measures should be considered such as ensuring the venue is well ventilated and asking staff to:

• take a lateral flow test before attending;
• sanitise their hands upon arrival;
• wear face masks in crowded areas (e.g. lifts or queues for cloakrooms); and
• limit physical contact.

What else do employers need to consider in light of Omicron?

Employers should monitor Government guidance closely over the coming weeks given that the situation may change rapidly as more is learnt about the Omicron variant.  Risk assessments should be kept under review and updated as necessary if research suggests that Omicron is more transmissible and/or more severe.

In addition, where employers provide information about vaccines to staff, this should be updated to reflect the fact that booster jabs are available now to everyone aged 40 or over (and are due to be extended to those in the 18 to 39 age bracket).  At present, booster jabs are available six months after a second vaccine dose, but this will be reduced to three months in due course.  Any vaccination policy should also be amended to reflect booster jabs (e.g. to confirm that employees will be given paid time off to attend booster jab appointments).

BDBF is currently advising many employers on the challenges presented by the coronavirus.  If you or your business needs advice on any coronavirus-related matter please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_row _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.26.6″ global_colors_info=”{}”][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section fb_built=”1″ _builder_version=”3.0.100″ background_image=”http://davidk423.sg-host.com/wp-content/uploads/2017/09/bdbf_final-stages-1-4-1.jpg” custom_padding=”|||” global_module=”2165″ saved_tabs=”all” global_colors_info=”{}”][et_pb_row _builder_version=”4.7.4″ min_height=”66.4px” custom_padding=”50px||||false|false” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” text_font=”|700|||||||” text_font_size=”27px” background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF90aXRsZSIsInNldHRpbmdzIjp7ImJlZm9yZSI6IiIsImFmdGVyIjoiIn19@[/et_pb_text][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” _module_preset=”default” background_layout=”dark” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF9kYXRlIiwic2V0dGluZ3MiOnsiYmVmb3JlIjoiIiwiYWZ0ZXIiOiIiLCJkYXRlX2Zvcm1hdCI6ImRlZmF1bHQiLCJjdXN0b21fZGF0ZV9mb3JtYXQiOiIifX0=@[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”3.22.3″ global_colors_info=”{}”][et_pb_row admin_label=”row” _builder_version=”4.7.4″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.10.7″ text_orientation=”justified” hover_enabled=”0″ use_border_color=”off” global_colors_info=”{}” sticky_enabled=”0″]

After a year off, office Christmas parties are back and – Omicron permitting – look set to be bigger than ever in 2021. While this is a great opportunity for the team to get together in person after being isolated for much of the past two years, employers need to ensure that the celebrations include the whole workforce.

The risks of getting it wrong range from a disgruntled less productive workforce and flight risks, to  employment tribunal claims of discrimination and constructive dismissal to name a few.

Making the Christmas party a truly inclusive event takes more than ensuring that everyone is invited. While care should be taken to ensure that no one is missed from the guest list (consider, for example, staff who are on long-term sick leave or maternity / other forms of family leave), it is also important that staff know the event is voluntary. There may be many reasons people don’t want to attend the party, and it should be made clear that they will not suffer a disadvantage if they choose not to attend.

Each workforce is individual. Accordingly, it is important for employers to speak to their staff about what they will enjoy. After all, this is supposed to be a celebration and a reward for hard work. For smaller organisations, this can be done in a team meeting, whereas larger organisations may need to form a committee made up of different sections of the workforce. As well as talking to staff beforehand, it is important to obtain feedback after the event that can be used to plan future events.

As a starting point, Senior Associate Clare Brereton sets out below some guidance on matters employers should consider each party season.

1. Name of the party

For some people, the very fact that their employer is having a “Christmas” party at all could make them feel excluded. The UK is made up of people of many different faiths, who practice their faith in different ways and others have no faith.

Given the time of year, it is likely to be difficult to avoid any mention of “Christmas”, but Christmas does not need to be the focus of the event. For example, replace “Christmas” with “festive” or “winter” party. The menu does not need to include a Christmas dinner. Traditions such as Christmas crackers and “Secret Santa” could be replaced with other games, such as word games or an awards ceremony celebrating special achievements over the past year. Christmas music does not need to be played (and, indeed, many party attendees may welcome the break).

2. The day and date of the party

Although it is likely to be almost impossible to select a day and time when everyone who wants to attend the party can do so, there are steps that an employer can take to ensure groups of people are not excluded. It is important to avoid having the party on a date that clashes with a religious holiday as employees of those faiths will have other commitments on those days.

When looking at a date more generally, there are some factors that need to be considered. For example, there may be one day of the week which is the non-working day for the majority of an employer’s workforce, and it would be sensible to try and avoid having the party on that day. If there are Jewish employees who observe Shabbat, then holding the party on a Friday evening would mean that they would not be able to attend. If the event is in the evening, some employees may struggle to find childcare.

If possible, employers should consult with the workforce in good time to identify whether there are any dates and/or days of the week on which they would not be able to attend the party. Once a date is set, give staff as much notice as possible.

3. Venue of the party

The location of the party is also significant. Physical features of a venue can make it more difficult for people with certain disabilities to attend. The need for the party space to be wheel-chair accessible is likely to be high on the list of an employer’s requirements, but employers should also consider what the noise levels and atmosphere of the venue will be like when it is full of people. If loud music will be playing it can be more difficult for wheel-chair users or those with certain conditions (including ADHD) to participate in conversations, particularly if the venue is crowded.

Employers also need to take care to consider employees with hidden disabilities. The past year has been very difficult for many people, and some employees may experience social anxiety at the prospect of a crowded party space, especially given the arrival of the Omicron variant. Therefore, consider the size and capacity of the venue and whether it is feasible to have the party in a larger venue which permits social distancing and has natural ventilation.

Employers might wish to take other steps to ensure the heath and safety of their employees is safeguarded during this time, for example asking employees to take a lateral flow test before attending the party and to wear face coverings in particularly crowded areas (e.g. lifts or queues for the cloakroom).  And, of course, anyone experiencing COVID-19 symptoms should be told not to attend.

4. Alcohol 

The stereotypical office Christmas party involves warm white wine, some crisps and people standing around chatting. While the quality of the catering is often of a higher standard than this, difficulties can arise if the party is too focused on alcohol.

There are many reasons why people do not drink alcohol, including pregnancy and breastfeeding, religious, cultural and health reasons. While banning alcohol altogether is unlikely to be necessary, it is important to ensure that there are high quality non-alcoholic drinks available and that the format of the party is not such that the only “activity” is drinking. Employees should not feel pressured into drinking more than they want to and it is important that it is made clear that harassment of other colleagues will not be tolerated.  You can read more about how employers can manage the risk of harassment here.

5. Catering

Food is a vital part of all parties, but hosting an inclusive event involves more than making sure there are vegetarian options available. Many venues are used to catering for a wide range of dietary requirements (e.g. vegan, kosher, halal, nut-free, gluten-free), so it should not be difficult for employers to ensure that all of their staff are catered for.

The easiest thing to do is to ask employees what their dietary requirements are before selecting a venue, so that you know in advance whether your chosen venue can meet those requirements.

And finally…

While it is important to remember the risks of getting it wrong, hosting a successful party at this time of year can be hugely beneficial to morale. A good employer will know its workforce and the type of event that staff will enjoy. Start by considering what would be a suitable celebration for your organisation and go from there. If in doubt ask the workforce for suggestions, there could be a great idea just waiting to be discovered!

If you would like to discuss any issues relating to the content of this article, please contact Clare Brereton (clarebrereton@bdbf.co.uk), or your usual BDBF contact.

[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_row _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.26.6″ global_colors_info=”{}”][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section fb_built=”1″ _builder_version=”3.0.100″ background_image=”http://davidk423.sg-host.com/wp-content/uploads/2017/09/bdbf_final-stages-1-4-1.jpg” custom_padding=”|||” global_module=”2165″ saved_tabs=”all” global_colors_info=”{}”][et_pb_row _builder_version=”4.7.4″ min_height=”66.4px” custom_padding=”50px||||false|false” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” text_font=”|700|||||||” text_font_size=”27px” background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF90aXRsZSIsInNldHRpbmdzIjp7ImJlZm9yZSI6IiIsImFmdGVyIjoiIn19@[/et_pb_text][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” _module_preset=”default” background_layout=”dark” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF9kYXRlIiwic2V0dGluZ3MiOnsiYmVmb3JlIjoiIiwiYWZ0ZXIiOiIiLCJkYXRlX2Zvcm1hdCI6ImRlZmF1bHQiLCJjdXN0b21fZGF0ZV9mb3JtYXQiOiIifX0=@[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”3.22.3″ global_colors_info=”{}”][et_pb_row admin_label=”row” _builder_version=”4.7.4″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.10.7″ text_orientation=”justified” hover_enabled=”0″ use_border_color=”off” global_colors_info=”{}” sticky_enabled=”0″]

The festive season is upon us and many are ready to embrace once again the annual Christmas party as we emerge from the restrictions of the pandemic.

Whilst most events go ahead hitch free, unfortunately incidents of inappropriate behaviour are not uncommon at these types of functions. Reports of sexual harassment often increase at this time of year. This can result in employers having to field serious complaints and investigate members of staff who have overstepped the line.

Shockingly, 72% of the UK population have experienced at least one form of sexual harassment in their lifetime and 29% of employed individuals experienced sexual harassment at work. Soberingly, statistics show that only 15%formally reported this to their employer.

As employers are liable for the conduct of their employees and have a duty to safeguard the health and safety of employees, it is important that employers take steps to prevent and deal with inappropriate behaviour. In this briefing, BDBF Associate Blair Wassman explores what constitutes harassment and sexual harassment, and what steps employers can take ahead of the end-of-year festivities.

What is harassment?

Harassment is unwanted conduct related to a protected characteristic (for example, sex, race or sexual orientation) which has the purpose or effect of either violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Sexual harassment is unwanted conduct of a sexual nature, which includes unwelcomed touching, sexual comments or jokes, suggestive looks or gestures and propositions and advances.

What does the law say about liability?

As a general rule, employers are liable for their employee’s actions.

It is a myth that where functions happen outside of the office employers are no longer liable for their employees’ conduct. Whilst this may be true in some instances, the default position is that employers are vicariously liable for acts of harassment committed by their employees during the “course of their employment” regardless of whether the employer knew or approved of the acts. This includes acts which are performed out of the employer’s premises, for example, whilst employees are working remotely as well as at work social functions which take place after hours.

This means that countless employers have found themselves liable for the acts of employees which have occurred at the pub after work, or, indeed, at Christmas parties. However, employers do have a defence available to them. If an employer is able to demonstrate they took all “reasonable steps” to prevent the perpetrator from doing the particular act, they may avoid being held liable.

Such reasonable steps can include:

• effective anti-harassment policies;
• appropriate reporting procedures and management of complaints;
• regular training for managers; and
• protection of victims.

Tips for employers

To try to avoid such misbehaviour and limit risks, employers should consider taking the following steps:

• Conduct a risk assessment: think about the venue and whether there are areas which are concealed (maybe re-think the dark photobooth in the far corner!). Consider how employees will get home following the function, for example, could you assist with a taxi service?

• Lead by example: encourage senior staff to limit their alcohol intake and to keep interactions professional. If they witness inappropriate behaviour, they should not turn a blind eye, but intervene if necessary and also report the acts to HR.

• Timing: consider whether a lunch or afternoon event is more suitable than the traditional evening party, which may, in turn, limit alcohol consumption and risk of harassment.

• Don’t authorise “after parties”: as tempting as it may be to continue the celebrations after the official work function, it is advisable for employers to distance themselves from “after parties”. This includes expressly stating that the official function is the only function funded and approved by the employer and any events afterwards are not sanctioned by the employer and discouraged for the safety of all employees.

• Remind employees of what is expected of them: a reminder about workplace policies related to harassment before such events is helpful, as well as the procedures which are in place to deal with any concerns.

• Take complaints seriously: if you receive complaints following such events, ensure that they are properly investigated and treated with the necessary degree of confidentiality and sensitivity. Reassure the victim and put mechanisms in place to ensure their protection, if necessary.

• Be supportive and have open communication lines: try to foster a culture where employees are not fearful of complaining about incidents of harassment. Appoint workplace champions and encourage employees to come forward about such incidents.

• Hold offending parties accountable: gone are the days where employers can write-off unwanted interactions as “banter”. If employees have committed acts of harassment, regardless of their seniority, they should be held accountable and disciplined if they are found to be guilty.

Like most things in life, prevention is better than cure. Employers giving careful thought to their end-of-year functions, and following these recommendations, is certainly time well spent. It also demonstrates to employees that their wellbeing and safety at such events is important, and provides a warning to those who may be tempted to step out of line.

If you would like to discuss harassment or any issues relating to the content of this article, please contact Blair Wassman (blairwassman@bdbf.co.uk), or your usual BDBF contact.

[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_row _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.26.6″ global_colors_info=”{}”][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section fb_built=”1″ _builder_version=”3.0.100″ background_image=”http://davidk423.sg-host.com/wp-content/uploads/2017/09/bdbf_final-stages-1-4-1.jpg” custom_padding=”|||” global_module=”2165″ saved_tabs=”all” global_colors_info=”{}”][et_pb_row _builder_version=”4.7.4″ min_height=”66.4px” custom_padding=”50px||||false|false” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” text_font=”|700|||||||” text_font_size=”27px” background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF90aXRsZSIsInNldHRpbmdzIjp7ImJlZm9yZSI6IiIsImFmdGVyIjoiIn19@[/et_pb_text][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” _module_preset=”default” background_layout=”dark” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF9kYXRlIiwic2V0dGluZ3MiOnsiYmVmb3JlIjoiIiwiYWZ0ZXIiOiIiLCJkYXRlX2Zvcm1hdCI6ImRlZmF1bHQiLCJjdXN0b21fZGF0ZV9mb3JtYXQiOiIifX0=@[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”3.22.3″ global_colors_info=”{}”][et_pb_row admin_label=”row” _builder_version=”4.7.4″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.10.7″ text_orientation=”justified” use_border_color=”off” global_colors_info=”{}”]

After an enforced hiatus, the in-person office Christmas party is returning this year and, for many, not even Omicron will stand in the way.  BDBF Associate, Theo Nicou, sets out his top tips to help employees make it a night to remember and not a night to forget.

Questionable behaviour at parties may not be new to employers, but they will certainly be out of practice after a long period of home-working and very few social events. It is not uncommon for misbehaviour at events to create an employee relations headache.

As an employee, it is important to remember that while Christmas parties are a social affair, they are still work events. Your conduct should reflect that. Your actions on the night can have lasting consequences.

Here are some top tips to make sure the night goes smoothly.

• Be mindful of your use of social media, including posting images of colleagues on public forums without their consent. What you may consider funny, others may consider embarrassing or offensive.

• When buying a “Secret Santa” gift for a colleague, think about how it might be received. It is best to avoid anything that could be considered offensive, especially if you don’t know the recipient very well.

• Consider watching your alcohol intake as excessive drinking can lower your inhibitions. Your professional reputation is important. Remember that your actions have consequences and impact your fellow colleagues too.

• Report any inappropriate, unwanted behaviour. This includes behaviour that you are subjected to or that you witness. You should review your employer’s policy about the appropriate process to follow.

Christmas parties are the perfect opportunity to catch up with colleagues, and maybe even meet new ones in person. This year is especially important given how physically distant we have been in recent times. And hybrid working leads to less face-to-face time with colleagues, meaning it is all the more important to make the most of these festive events. So, be sure to eat, drink (in moderation) and be merry!

For guidance on steps employers may wish to take in light of the Omicron variant, please read our briefing here.

If you would like to discuss any points raised in this article please contact Theo Nicou (theonicou@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_row _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.26.6″ global_colors_info=”{}”][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section fb_built=”1″ _builder_version=”3.0.100″ background_image=”http://davidk423.sg-host.com/wp-content/uploads/2017/09/bdbf_final-stages-1-4-1.jpg” custom_padding=”|||” global_module=”2165″ saved_tabs=”all” global_colors_info=”{}”][et_pb_row _builder_version=”4.7.4″ min_height=”66.4px” custom_padding=”50px||||false|false” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” text_font=”|700|||||||” text_font_size=”27px” background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF90aXRsZSIsInNldHRpbmdzIjp7ImJlZm9yZSI6IiIsImFmdGVyIjoiIn19@[/et_pb_text][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” _module_preset=”default” background_layout=”dark” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF9kYXRlIiwic2V0dGluZ3MiOnsiYmVmb3JlIjoiIiwiYWZ0ZXIiOiIiLCJkYXRlX2Zvcm1hdCI6ImRlZmF1bHQiLCJjdXN0b21fZGF0ZV9mb3JtYXQiOiIifX0=@[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”3.22.3″ global_colors_info=”{}”][et_pb_row admin_label=”row” _builder_version=”4.7.4″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.10.7″ text_orientation=”justified” use_border_color=”off” global_colors_info=”{}”]

In the recent case of London Borough of Hammersmith and Fulham v Keable the Employment Appeal Tribunal has upheld a decision that an employee was unfairly dismissed after a video of him expressing controversial views on Zionism went viral on social media.

What happened in this case?

Mr Keable was employed by the London Borough of Hammersmith and Fulham Council (the Council) from 19 March 2001 until his dismissal for serious misconduct on 21 May 2018.  He was good at his job and had a clean disciplinary record before the matters that led to his dismissal.

The Council had a Code of Conduct which set out the standards of behaviour expected from employees, including provisions regarding politically restricted posts.  However, Mr Keable’s role was not one of them, meaning that he was free to be politically active and do things such as attending political demonstrations and voicing his political views.

Mr Keable is a member of the Labour Party and a “Momentum” activist. On 26 March 2018 he attended a rally outside Parliament organised by “Jewish Voice for Labour” (a small pro-Corbyn, anti-Zionist grouping within the Labour Party formed to act as a counter to the mainstream Jewish Labour Movement).  Mr Keable attended this rally in his own time, in his personal capacity and wore nothing identifying him as a Council employee.  At the same time, another rally was taking place organised by the Jewish group “Enough is Enough”.  During the Jewish Voice for Labour rally, Mr Keable found himself speaking to an individual attending the Enough is Enough rally.  This exchange was filmed without Mr Keable’s consent by a third party and was subsequently put on social media.

In the following hours and days, the video of Mr Keable went viral and he was identified as an employee of the Council.  Many of the comments on social media were shared by MPs and Councillors who accused Mr Keable of bringing the Council into disrepute and called upon the Council to look into the incident. The Council ended up suspending Mr Keable while an investigation took place.  The suspension letter to Mr Keable set out that he had made inappropriate comments which were insensitive, offensive and had the potential to bring the Council into disrepute.

During the course of the investigation Mr Keable asked to be told precisely which comments were relevant to the allegations against him so that he could prepare for any resulting disciplinary. The investigating officer confirmed that two comments that were likely to cause offence were: “the Zionist movement collaborated with the Nazis” and “the Zionist movement accepted that Jews are not acceptable here”.

In the following disciplinary, Mr Keable made representations that he was not anti-Semitic, noting that he was previously married to a Jewish woman and that his daughter was Jewish. He also argued that while his comments could be perceived as being offensive, he had the right of free speech and the right to offend. His representations at the disciplinary were backed up by a statement that he had signed off on from his trade union representative which suggested that the investigations had been “indigestible gobbledegook”, “pitiful verbiage” and “spurious nonsense”.

The Council dismissed Mr Keable for serious misconduct on the grounds that he had brought the Council into disrepute.  The video had been viewed over 79,000 times at the time of checking and most of the comments on it had interpreted Mr Keable’s words negatively.  In addition, the Council had received a written complaint from a local MP and Mr Keable’s words had been linked in the media to his employment. Specifically, the Council concluded that the average person would interpret his comments as suggesting that Zionists had collaborated with the Nazis in the Holocaust.

Mr Keable appealed against his dismissal but was unsuccessful.  He then made a complaint of unfair dismissal to the Employment Tribunal.

What was decided?

The Tribunal’s decision – liability

The Tribunal found that Mr Keable’s dismissal was unfair on both substantive and procedural grounds.

In particular, it decided that the culpability of Mr Keable had been limited and that it was not within the range of reasonable responses to dismiss him for exercising his right to freedom of expression and freedom of assembly when he was acting in his personal capacity and not connected to the workplace.

Additionally, the reason given for the dismissal was different to the charges raised in the investigation and disciplinary process. It had never been put to him that the average person would interpret his comments as suggesting that Zionists had collaborated with the Nazis in the Holocaust and that this, in turn, would bring the Council into disrepute. As this allegation had not been put to him, he had not been given an opportunity to respond.

It was also found that the Council had not actually proactively consulted with Mr Keable on whether a warning would have been enough to prevent a recurrence, and this also led to his dismissal being unfair.  

The Tribunal’s decision – remedy

Mr Keable claimed reinstatement and was granted it.  Unusually in this case, the Council did not plead that there had been a breakdown in trust and confidence and the disciplining manager admitted that Mr Keable had not fallen out with any of his colleagues and, indeed, some had been actively supportive of him. He had also conducted himself in a respectable manner throughout the process.

It was, however, found that the union representative’s written statement had contributed to the disciplining manager’s decision to dismiss and, therefore, compensation was cut by 10%.

The appeal

The Council appealed against the Tribunal’s decision on both liability and remedy.

The EAT upheld the Tribunal’s decision confirming that Mr Keable had been unfairly dismissed as the full allegations against him had not been put to him and the Council had failed to give him an opportunity to comment on whether a warning would have been an appropriate sanction.  

The EAT said that a fair procedure required the Council to have put to Mr Keable what he would do if a warning was imposed and whether he would heed it.  It went on to say that a fair procedure is not a tick box exercise; it should seek to give the individual the opportunity to convey relevant information to the decision- maker and, in this case, this would have been relevant.

The EAT upheld the decision to reinstate Mr Keable confirming that the Council had not lost trust and confidence in him.

What does this mean for employers?

Employers should take care when communicating to employees the charges being put to them that may lead to their dismissal. In particular, they should explain as much as possible of their rationale for a decision to dismiss or give a warning so that an employee has as much detail as possible.

Employers should be careful when adopting a ‘one size fits all’ approach for a disciplinary procedure. While employers are encouraged to have written procedures, these are generally set out as the key steps in the procedure and the potential warnings that could be imposed. Every case is different, on the facts, and every investigation/disciplinary should be carried out with this in mind. 

A third take away for employers from this case is that reinstatement is possible, even when, on the face of it, the dismissal concerns an individual voicing their potentially offensive opinion in a public space.

If you would like to discuss any issues arising out of this decision please contact, Hannah Lynn (hannahlynn@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

London Borough of Hammersmith and Fulham v Keable

[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_row _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.26.6″ global_colors_info=”{}”][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section fb_built=”1″ _builder_version=”3.0.100″ background_image=”http://davidk423.sg-host.com/wp-content/uploads/2017/09/bdbf_final-stages-1-4-1.jpg” custom_padding=”|||” global_module=”2165″ saved_tabs=”all” global_colors_info=”{}”][et_pb_row _builder_version=”4.7.4″ min_height=”66.4px” custom_padding=”50px||||false|false” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” text_font=”|700|||||||” text_font_size=”27px” background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF90aXRsZSIsInNldHRpbmdzIjp7ImJlZm9yZSI6IiIsImFmdGVyIjoiIn19@[/et_pb_text][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” _module_preset=”default” background_layout=”dark” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF9kYXRlIiwic2V0dGluZ3MiOnsiYmVmb3JlIjoiIiwiYWZ0ZXIiOiIiLCJkYXRlX2Zvcm1hdCI6ImRlZmF1bHQiLCJjdXN0b21fZGF0ZV9mb3JtYXQiOiIifX0=@[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”3.22.3″ global_colors_info=”{}”][et_pb_row admin_label=”row” _builder_version=”4.7.4″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.10.7″ text_orientation=”justified” hover_enabled=”0″ use_border_color=”off” global_colors_info=”{}” sticky_enabled=”0″]

A major new study commissioned by Standard Chartered Bank and the Financial Services Skills Commission examines the impact of the menopause on workers in the financial services sector, how it affects the leadership pipeline and how employers can better support staff.  Although the study focuses on the financial services sector, many of the findings are relevant to employers operating in other areas of the economy.

Why the menopause matters to the financial services sector

Around nine percent of the sector’s workforce is made up of women aged between 45 and 55, being the age bracket within which women are most likely to experience the menopause.  Earlier research has shown that a majority of women are negatively affected by the menopause at work, with the result that many choose not to progress in their careers or even leave the workplace altogether.

Given that the financial services sector is facing a skills gap and competition for talent, the report identifies that offering support to menopausal workers is one way to address this issue. 

Experiences of the menopause

The study shows that menopausal workers in the sector experienced a variety of physical and non-physical symptoms which negatively affect them at work.  The most commonly reported physical symptom was tiredness, followed by night sweats, muscle and joint pain, hot flushes, bloating, headaches, period changes, urinary problems, palpitations and dizziness.  The most commonly reported non-physical symptom was insomnia, followed by anxiety, memory problems, difficulty concentrating, mood swings, irritability, loss of confidence and depression.

The key message for employers is to understand and speak openly about these symptoms in order to ensure that appropriate support is made available.

Wellbeing and relationships in the workplace

The research revealed a “culture of silence” around the issue, which had a negative impact on workplace relationships.  Around half of menopausal workers said the menopause was not something that they felt could be discussed at work. 

Only around 20% of affected staff disclosed their status with a view to accessing support – interestingly, this figure was much lower for those in senior leadership roles (at around eight percent).  The primary reason holding workers back from disclosing their status was the belief that they would be perceived negatively, followed closely by a fear that their abilities would be questioned.  The report also revealed that women working in male-dominated and/or younger workplaces were particularly worried that managers and colleagues would not react well.   

In addition to this culture of silence, menopausal workers reported feeling less heard when they offered an idea or opinion.  Only 66% of menopausal women felt heard compared to 85% of younger men.  In focus groups and interviews, menopausal women also spoke of their inability to enjoy work in the way that they used to.  This was mainly driven by the worry that they would make a mistake, which led to a loss of confidence and a tendency to become withdrawn.

Retention of talent and the pipeline to senior roles

The study showed that workers experiencing difficult menopause symptoms at work are making the conscious choice not to progress into senior roles and, in some cases, are taking a step down in seniority or leaving the workplace altogether.

Around half of menopausal workers said they were less likely to apply for a promotion and a similar proportion said they were unwilling to take on extra responsibilities in their current role.  In focus groups, some reported not applying for a promotion (or rejecting an offer of a promotion) because they were worried that they would not be able to perform adequately in a more demanding role due to their symptoms.  More starkly, around a quarter of menopausal workers reported that the menopause made them more likely to leave employment altogether before retirement.

A common theme among those who did not apply for promotion, or who left the workforce, was that they did not know at the time that they were suffering from the menopause.  These workers reported that if they had better knowledge then they may have made a different decision.  This represents an opportunity for action by employers.

What can employers do to support menopausal workers?

The study concludes that employers should take action to support menopausal workers in three key areas.

Firstly, in relation to culture, training and awareness, the message is that menopause as a workplace issue is where mental health was ten years ago.  Just as with mental health, employers need to break the stigma surrounding the menopause.  It is recommended that employers:

• provide information and advice about the menopause and coping at work;
• train managers and HR on the menopause;
• publish a menopause policy or guidance document;
• facilitate support systems and networks;
• demonstrate senior leadership support; and
• cover the menopause in private health insurance and employee assistance programmes.

Secondly, the study recommends that employers communicate to staff that menopause is a good reason to wish to work flexibly and offer a range of flexible working options such as:

• working from home;
• staggered hours;
• flexibility to take short breaks;
• building in breaks between meetings; and
• allowing part-time working and job sharing.

Thirdly, the report highlights that simple changes to the working environment will help menopausal workers manage their symptoms.  Changes that would help to make the workplace more menopause-friendly include:

• providing a quiet room to relax (this is said to be especially helpful for those in client-facing roles);
• providing desk fans as a matter of course;
• giving workers a fixed desk;
• providing a good range of sanitary products in the toilets; and
• providing loose fitting / layered uniforms where relevant.

Employers operating both in and out of the financial services sector should take note of these findings and recommendations and consider what can be done to support and retain this overlooked part of the workforce. 

If you would like to discuss how your organisation can support staff though the menopause, please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_row _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.26.6″ global_colors_info=”{}”][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section fb_built=”1″ _builder_version=”3.0.100″ background_image=”http://davidk423.sg-host.com/wp-content/uploads/2017/09/bdbf_final-stages-1-4-1.jpg” custom_padding=”|||” global_module=”2165″ saved_tabs=”all” global_colors_info=”{}”][et_pb_row _builder_version=”4.7.4″ min_height=”66.4px” custom_padding=”50px||||false|false” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” text_font=”|700|||||||” text_font_size=”27px” background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF90aXRsZSIsInNldHRpbmdzIjp7ImJlZm9yZSI6IiIsImFmdGVyIjoiIn19@[/et_pb_text][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” _module_preset=”default” background_layout=”dark” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF9kYXRlIiwic2V0dGluZ3MiOnsiYmVmb3JlIjoiIiwiYWZ0ZXIiOiIiLCJkYXRlX2Zvcm1hdCI6ImRlZmF1bHQiLCJjdXN0b21fZGF0ZV9mb3JtYXQiOiIifX0=@[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”3.22.3″ global_colors_info=”{}”][et_pb_row admin_label=”row” _builder_version=”4.7.4″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.10.7″ text_orientation=”justified” hover_enabled=”0″ use_border_color=”off” global_colors_info=”{}” sticky_enabled=”0″]

Employers sometimes try to enforce contractual amendments on their workforce by using a “fire and rehire” strategy – terminating employment and offering to hire staff back on the new terms.  The Government has confirmed that it does not intend to legislate against such practices, but it asked Acas to publish new guidance for employers wanting to make contractual changes which Acas has now done.   In this article, we summarise the key points for employers and give our own tips at the end.

The guidance covers six in-depth sections, which can be found here and are summarised below.

Considering employment contract changes

Changes to employment contracts must be agreed by both employee (or in some cases with trade union or employee representatives) and employer. Some common scenarios which may make contractual changes desirable include introducing benefits such as enhanced maternity pay or updating contracts to accommodate new law or regulations.

Before proposing changes, it is helpful for employers to consider what issue they are trying to solve, and whether a contractual change will indeed solve it. Employers should also consider how the proposed change may impact the workforce, whether certain groups of people may be affected differently to others, and whether this amounts to unlawful discrimination.

Employers should also give thought to the number of employees which may be affected by the change and whether it is necessary to consult with employee representatives rather than only individuals. If terms and conditions are governed by a collective agreement (i.e. an agreement with a recognised trade union), then employers may be required to consult with that trade union.

Proposing employment contract changes

Whilst some contracts contain provisions purporting to permit employers to amend or vary contracts unilaterally, these are not failsafe clauses, and employers should not rely on “flexibility” clauses in contracts alone when trying to vary terms. Doing so risks claims of breach of contract and/or constructive dismissal.

Where employers propose contractual changes, they must inform all affected employees (and workers) and/or any relevant representatives about:

• what the proposed changes are;
• who might be affected;
• why the changes are required;
• a timeframe regarding the proposed changes; and
• any other options which the employer has considered.

Employers should open a consultation process to discuss the proposed changes and allow the employees and/or representatives to provide feedback. This should be done as early as possible to allow sufficient time to reach an agreement.

Consulting about employment contract changes

Consultation regarding proposed changes is helpful as members of staff are more likely to support them where they understand the rationale for them, they are given the opportunity to provide their views and feel that these have been properly considered.

As above, employers should consider whom the appropriate employees and/or representatives are to be consulted. Consultation should be a genuine two-way discussion between the parties, and employers should approach this with an open mind.  The aim should be to try to understand any concerns and address any questions raised during this process.  Employers should avoid being threatening, intimidating or giving ultimatums. Not only is this not conducive to having a meaningful consultation, but it may give rise to legal claims.

Providing training to those involved in the negotiations and consultations can assist in ensuring constructive discussion and increases the chances of the parties reaching a solution which is acceptable to all.

Handling requests to change an employment contract

Of course, it is not just employers that can propose contractual changes, but employees as well. Circumstances where employees may request changes to their existing contractual terms include making a request for flexible working or amending their contractual duties.

All such requests should be treated reasonably, and it is again advisable to have a discussion about the proposed change in order to understand why it is thought to be needed. Employers should then consider how they might be able to accommodate the request.

If employment contract changes are agreed

Where changes are agreed, it is important to record these in writing. For example, changes around pay, working hours and holiday entitlement form part of the written particulars which must be provided to an employee.  Therefore, it is safest to record all variations in writing.

If the change is going to be temporary, this should be explicit and a clear timeframe should be set out regarding when the change will take effect and for how long. Acas also recommends monitoring changes once implemented to ensure that the workforce is not being adversely affected, especially where the changes had been met with some resistance.

If employment contract changes cannot be agreed

Employers should keep in mind that agreeing changes does not always happen after the first consultation and will likely take some time. Patience is important to avoid unnecessary and costly legal claims as well as industrial action.

If employees are reluctant to agree, employers could consider alternatives or whether there is anything they could offer that would make the proposal more attractive, such as offering more beneficial other terms to compensate for the change. In addition, another practical suggestion is to introduce the changes gradually or on a temporary basis initially.

If an agreement cannot be reached, and considerable attempts have been made, in limited circumstances it may then be possible to give employees notice of termination of employment together with an offer to rehire them on the basis of the new terms. Doing so is not as easy as it sounds, and employees may resign and claim constructive dismissal or continue to work, but under protest, meaning they are still within their rights to bring claims against an employer.

In addition, where employers are proposing to dismiss 20 or more employees there is the added requirement to consult collectively about the proposed dismissals. Employers must also have a fair reason for dismissing employees, follow a fair process and provide the correct amount of notice.

Top tips for employers considering contractual variations

The overall message from Acas is that fire and rehire should be used as a last resort, given the damaging effect it can have on the trust, morale and productivity amongst the workforce. 

Some of this advice from Acas may be over cautious (e.g. not setting an ultimatum or time limit).  Our top tips for effecting changes to contracts are as follows:

• Consult with the workforce when making changes and try to reach agreement on the variations wherever possible.
• Listen to the views of the workforce and do consider whether any proposed amendments could be made to accommodate their views or suggestions.
• Remember that unilateral changes can be completely ineffective, can lead to legal claims and often do cause despondency, which, in turn may damage productivity and your reputation.
• Seek legal advice as early as possible.

If you would like to discuss any issues arising out of this article please contact Blair Wassman (blairwassman@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_row _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.26.6″ global_colors_info=”{}”][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section fb_built=”1″ _builder_version=”3.0.100″ background_image=”http://davidk423.sg-host.com/wp-content/uploads/2017/09/bdbf_final-stages-1-4-1.jpg” custom_padding=”|||” global_module=”2165″ saved_tabs=”all” global_colors_info=”{}”][et_pb_row _builder_version=”4.7.4″ min_height=”66.4px” custom_padding=”50px||||false|false” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” text_font=”|700|||||||” text_font_size=”27px” background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF90aXRsZSIsInNldHRpbmdzIjp7ImJlZm9yZSI6IiIsImFmdGVyIjoiIn19@[/et_pb_text][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” _module_preset=”default” background_layout=”dark” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF9kYXRlIiwic2V0dGluZ3MiOnsiYmVmb3JlIjoiIiwiYWZ0ZXIiOiIiLCJkYXRlX2Zvcm1hdCI6ImRlZmF1bHQiLCJjdXN0b21fZGF0ZV9mb3JtYXQiOiIifX0=@[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”3.22.3″ global_colors_info=”{}”][et_pb_row admin_label=”row” _builder_version=”4.7.4″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.10.7″ text_orientation=”justified” hover_enabled=”0″ use_border_color=”off” global_colors_info=”{}” sticky_enabled=”0″]

In the recent case of Stott v Ralli Ltd the Employment Appeal Tribunal ruled that the dismissal of an employee was not an act of discrimination arising from disability.

What happened in this case?

The Claimant was employed as a paralegal by Ralli Ltd for approximately three months. She was dismissed for poor performance and was paid in lieu of notice. Following the dismissal meeting, the Claimant raised a grievance and stated that Ralli had been informed of her mental health issues in several communications. At the grievance meeting, she said that her disabilities were mental health issues, anxiety, depression and a heart condition. She claimed that her mental health issues had affected her performance.

Ralli rejected her grievance, stating that they had not been informed about her disabilities. Her appeal was also unsuccessful.   The Claimant went on to bring a claim in the Employment Tribunal for discrimination arising from disability in relation to her dismissal.  As she did not have two years’ service, she was not able to bring a claim for unfair dismissal. 

Ralli accepted that the Claimant had a mental impairment amounting to a disability at the time of her dismissal but argued that it had not known about this at the time and that it had only been raised after her dismissal.  In any event, it argued that any unfavourable treatment would have been justified.

The Employment Tribunal dismissed the claim, finding that the Claimant had been dismissed for poor performance and that the Claimant had not disclosed her impairment to Ralli prior to her dismissal.  The Claimant appealed on a number of grounds, notably that the Employment Tribunal should have regarded her grievance and the grievance appeal as an integral part of the dismissal process and should have concluded that, by the end of that process, Ralli had knowledge, or constructive knowledge, of her disability.

What was decided by the Employment Appeal Tribunal?

The EAT held that even on the most fair or generous reading the claim had been brought solely in relation to the dismissal.  Therefore, the Employment Tribunal had been correct to treat knowledge (or constructive knowledge) which had been acquired after the dismissal as irrelevant to the claim.

While in unfair dismissal claims dismissal is regarded as a process encompassing the appeal stage and outcome, the EAT held that there is no legal principle requiring the same approach to be taken in discrimination claims.   

What does this mean for employers?

Had the Claimant pleaded her claim more widely to include post-dismissal discrimination, relating to the grievance process and subsequent treatment (when the employer had knowledge of her disability) the outcome may have been different.  So, in reality, the employer got lucky.  In the ordinary course, if an employer has learned about dismissal during an appeal process, it may still be held liable for disability discrimination and so should act with due care when this happens.

Stott v Ralli Ltd

If you would like to discuss any issues arising out of this decision please contact Theo Nicou (theonicou@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_row _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.26.6″ global_colors_info=”{}”][/et_pb_column][/et_pb_row][/et_pb_section]

Over the last 10 years, International Women’s Day (IWD) has gained considerable momentum and attracted more attention year on year. Indeed, on 8 March this year, IWD celebrated its 110th year.

The purpose of IWD is to: (i) celebrate women’s achievements; (ii) raise awareness about women’s equality; (iii) lobby for accelerated gender parity; and (iv) fundraise for female focused charities.

Whilst it is fantastic to see how far IWD has come and to see it recognised on a global level, 8 March does attract the following question: what about International Men’s Day?

International Men’s Day is on 19 November and it is not new. It has been celebrated annually for almost 20 years, since 1992.

Whilst some of you reading may scoff at the idea – “men already rule the world, why do they need a whole day?” more should be said about raising the profile of International Men’s Day’s profile. By men and by women.

As highlighted in Richard Herring’s brilliant book “The Problem with Men” there are a few simple ways which this day can and should be celebrated:

1. Praising positive male role models and celebrating men’s positive contributions to society – I vote for Marcus Rashford this year. Who would you nominate?
2. Use it as an opportunity to check-in on friend/family wellbeing – men’s suicide rate is much higher than the rate in women and part of the problem is thought to be men’s inability to communicate properly about their feelings. Start breaking this taboo.
3. Recognise discrimination against men, ascertain who is responsible for this discrimination and tackle it, without blaming feminism (i.e. there is a growing movement amongst some male activists which seeks to attribute men’s rising inequality with women’s increased equality).
4. Improve and promote gender equality together. More women should get involved in International Men’s day and vice versa.
5. Be part of creating a better, more equal and safer world.

Ultimately, celebrating International Men’s day does not have to be complicated. If 19 November allows men to talk to each other and to women openly and honestly about the positives of being a man, then I believe this will help overall gender equality (and hopefully stop the question of “When is International Men’s day?” on International Women’s day).

If you would like to know more, or you need advice about equality, diversity or sex discrimination please contact Emily Plosker (emilyplosker@bdbf.co.uk) or your usual BDBF contact.

[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_row _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.26.6″ global_colors_info=”{}”][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section fb_built=”1″ _builder_version=”3.0.100″ background_image=”http://davidk423.sg-host.com/wp-content/uploads/2017/09/bdbf_final-stages-1-4-1.jpg” custom_padding=”|||” global_module=”2165″ saved_tabs=”all” global_colors_info=”{}”][et_pb_row _builder_version=”4.7.4″ min_height=”66.4px” custom_padding=”50px||||false|false” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” text_font=”|700|||||||” text_font_size=”27px” background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF90aXRsZSIsInNldHRpbmdzIjp7ImJlZm9yZSI6IiIsImFmdGVyIjoiIn19@[/et_pb_text][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” _module_preset=”default” background_layout=”dark” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF9kYXRlIiwic2V0dGluZ3MiOnsiYmVmb3JlIjoiIiwiYWZ0ZXIiOiIiLCJkYXRlX2Zvcm1hdCI6ImRlZmF1bHQiLCJjdXN0b21fZGF0ZV9mb3JtYXQiOiIifX0=@[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”3.22.3″ global_colors_info=”{}”][et_pb_row admin_label=”row” _builder_version=”4.7.4″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.10.7″ text_orientation=”justified” hover_enabled=”0″ use_border_color=”off” global_colors_info=”{}” sticky_enabled=”0″]

Today, 18 November 2021, has been declared by the Fawcett Society as “Equal Pay Day”, i.e. the point in the year at which women on average stop earning, relative to men, because of the gender pay gap.  Despite increasing awareness of the issue, the gender pay gap increased in 2021 from 14.9% to 15.4% and remains a key concern in gender inequality. To address the issue, this year the Fawcett Society is running a campaign to #EndSalaryHistory.

In this article, we explain the concept of equal pay and the gender pay gap, consider this campaign, and outline some practical steps employees and employers can take to address the issue.

The law

It has been over 50 years since the first legislation was introduced to address inequality in pay between men and women in the form of the Equal Pay Act 1970. The principle of equal pay for equal work for men and women is now regulated by the Equality Act 2010.

In summary, the legislation states that employees (i.e. those under a contract of service, apprenticeship or who are contracted personally to do work) are entitled to receive contractual terms which are no less favourable than a comparator of the opposite sex. The comparator must be an employee in the same employment, or a previous employee in the same employment, doing work which is comparable.  This will be the case where the comparator is employed to do “equal work” which is either like work, work rated as equivalent, or work of equal value.  This applies not only to pay, but to certain benefits as well. An employer may still be able to justify a distinction in pay between comparators because of a “material factor” – for example, seniority, length of service, or different levels on a pay scale. 

Separately, employers (who employ 250 or more employees) are obliged to report on their gender pay gap annually. However,  as a result of the pandemic this requirement was deferred in 2020 to October of this year.

Whilst the concepts of equal pay and the gender pay gap are often referred to synonymously, they are different concepts. Equal pay compares individuals who perform equal work, and the gender pay gap compares average earnings (salary and bonuses) of men and women across an organisation.

Despite an initial uptick in gender pay issues and coverage after the introduction of gender pay gap reporting, the reality is that it remains a novel concept, with compulsory reporting having only been introduced recently in April 2017 in the private sector and March 2017 in the public and voluntary sector with the first reports for the private sector published in April 2018.

Why is it so difficult to close the pay gap between men and women? 

The reality is that in the absence of proactive steps by employers, pay disparity continues to be perpetuated year on year.  Indeed, when employers are asked how they determine pay for new recruits, many would say that this is based on market standards and how much the individual earned in their previous role. One of the most common interview questions is “how much do you earn currently?”. What may seem like a reasonable and harmless enquiry unfortunately perpetuates the historical disparity in pay between men and women.

Statistics also reveal that women are far less likely to negotiate for higher salaries when moving jobs as men in the same position. Employers are also less inclined to offer women higher salaries than what they have earned previously.  

This is the motivation behind the Fawcett Society’s campaign #EndSalaryHistory, which asks that employers stop asking how much potential recruits earned historically when benchmarking their pay going forward, to put an end to historical discrepancies and put women on an even footing.

This is one, sensible, way of addressing the issue at high level and in our view this type of widescale cultural change is ever more required in light of the disproportionate implications of the pandemic on women. 

As many employers move towards a more flexible working regime, there are concerns that this will only increase the lack of transparency in women’s pay. The Fawcett Society’s data shows that the majority of working women do not know whether they are being paid less than a male comparator and only 3 out of 10 believed that their employer would tell them the answer if they asked.

Working from home also means that women will become more isolated, less likely to have a sense of what colleagues are being paid or to be able to discuss it and may not feel confident to challenge pay inequality on their own.  Just last week, The Guardian published an article entitled “[w]omen working from home risk being caught in a ‘she-cession’”, and noted that more men were returning to the office. This places women at a disadvantage as they are “out of sight, out of mind” and may be overlooked when it comes to promotions, bonuses and pay increases.

What can individual employees do to address issues of gender inequality in pay?

A woman who suspects that a male colleague who is performing equal work is receiving more favourable terms may have an equal pay claim (and vice versa), and/or a claim in sex discrimination against her employer.  Below are some practical tips in that scenario:

• If you think you have a claim, it is important to gather information that supports your position. You could ask your colleagues about their terms to identify a pay disparity. Confidentiality around pay and benefits does not apply if you’re asking for this purpose. 
• Alternatively, you could ask your employer directly.
• You could submit a questionnaire to your employer to help determine whether you have a claim, by asking questions about the comparators you have identified, how pay is determined and whether the job descriptions of the comparators provide any explanation for a difference in pay. Whilst this is no longer a statutory process, there is nothing to stop you asking your employer to respond voluntarily and equal pay questionnaires remain a useful tool in determining whether any equal pay claim has good prospects of success.
• Another useful way of gathering information is to look at your employer’s advertisements for the same or similar roles, and whether salaries and benefits are in accordance with what you receive.

What can employers do to address issues of gender inequality in pay?

• Be proactive – Addressing pay imbalances is not something employers should be considering once a year when they are preparing their gender pay gap report. When recruiting, refrain from asking for information about current salary and benefits.
• Be transparent – provide honest and frank information to new recruits about pay scales and/or pay range for the role and the factors which would be used in determining pay. Transparency around pay scales more generally also assists employers in closing the gap in pay and ensures women have the correct information about pay scales for their role.
• Be open to negotiation – where women ask for a higher salary in the recruitment process, consider this request openly and carefully before rejecting it out of hand..
• Join the campaign – The Fawcett Society’s campaign challenges employers to commit to tackling the issue head-on and they provide a helpful toolkit here.

If you would like to discuss any issues relating to the content of this article, please contact Polly Rodway or Blair Wassman (blairwassman@bdbf.co.uk), or your usual BDBF contact.

[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_row _builder_version=”3.26.6″ global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”3.26.6″ global_colors_info=”{}”][/et_pb_column][/et_pb_row][/et_pb_section]