Category Archives: health and safety

Getting back to work

Work Safety

Announcing the extension of the furlough scheme will have provided many businesses and employees with some comfort and further financial breathing space during these challenging times. The scheme will remain in place until 31 October 2020, which is perhaps longer than initially anticipated. The scheme’s current format will however change from August with employers being required to share the cost of furloughed staff with the government.

By the end of May more detail about the post-July changes will be published. Although the aim of the changes will be to provide employers with greater flexibility to get furloughed employees back to work on a part-time basis, without the full detail of the changes, the real benefit cannot be assessed. So there will be some nervousness until the employer’s contribution has been published.

Most employers supported by the furlough scheme will sensibly defer any definite decisions about the future shape of the workforce and their return to work plans until further information is available. In the meantime, there are certain key questions that need to be answered.

Can the business return to the way it was in the short and long-term from both a financial and operational perspective and if so, how quickly can this be achieved, if at all?

Even when driven by financial necessity, furloughing employees will have been a difficult decision but in many cases it would have been implemented overnight. Bringing the operation back to life and having sufficient revenue streams to support this move is likely to be a more complex process; a new strategy may be required. Where people are at the core of the operation, workforce planning will be an critical part of developing a new strategy, which may inevitably involve restructuring and redundancies. Changes to contractual terms and conditions of employment may also be necessary. In either case, careful planning will ensure that all legal obligations, including complying with any consultation requirements are satisfied to minimise the risk of claims in the employment tribunal.

How will employees’ expectations be managed?

Until the recent announcement, the focus has been on the furlough scheme ending at the end of June. In contrast to the suggestion furlough is addictive, the majority of those furloughed will have been focusing on returning to work on 1 July, which is probably what individuals believed they were signing up to under their furlough agreements. Financial reasons will be at the heart of the decision for any business to utilise the scheme for as long as possible. In making this decision, employers need to be able to address employees’ current expectations, not only in terms of a continued requirement to remain at home but also the financial impact that it may have on them personally.  A clearly communicated rationale and a keeping in touch plan will be essential to retain the engagement of those on long-term furlough, if those employees are key to future business success once the recovery period is underway.

The consequence of long-term furlough means that employees are being asked to agree to a continued variation of their contracts of employment. If furlough is to be extended it will be important to establish if current furlough agreements can be relied upon or whether new agreements will need to be issued to avoid breach of contract and wage claims.

Are there any health considerations that need to be addressed in the return to work plan?

There is still no certainty about the curtailment of the virus and the health risks are still present. Any return to work plan must be supported by a thorough health risk assessment. The assessment needs to start from an employee’s home and include their journey to and from work. It is difficult to control who individuals come into contact with when away from work. Control measures will need to be implemented, including reiterating the importance of following the government’s social distancing measures and good hygiene. Further hard work will be needed once the employee is back at work to manage any health risks, with adequate controls being implemented. Adhering to government and the Health and Safety Executive guidance should be non-negotiable from the perspective of both the business and all employees when it comes to protecting individual well-being. Vigilance and flexibility in relation to control measures will be important to safeguard health, if the level of risk increases. The workplace is likely to feel and may look very different when employees return. It is important that clear guidance and training is provided on how to work safely and protect health.

Mental health should also be a factor that is considered as part of any risk assessment. This factor is multi-faceted. Some employees may need reassurance as they have concerns about their personal safety. Others may struggle to adapt when returning, particularly if the work regime feels unfamiliar. Deferring a return to work or making a request that homeworking is undertaken, may leave individuals feeling left behind and isolated. Employers have a legal duty to tackle work-related mental health issues; risks need to be assessed and controlled.

How will a phased return to work be managed?

Roles and skills will have been identified as necessary to support the initial recovery phase, while less business critical roles are likely to be kept under review as progress is made. Resuming some level of operation will be perceived as a positive step but there are potential legal risks that need to be addressed.

A phased return means that choices will have to be made about who returns, and from August whether this is on a full-time or part-time basis (if home working cannot continue), and who stays at home furloughed. Employment law still applies irrespective. To avoid any legal challenge, employers need to be transparent about the selection criteria adopted to bring people back to work while others remain at home. It is essential that this process is documented, and the audit trail must be capable of demonstrating that selection is fair, based legitimate business reasons and is not discriminatory.

Is business ready to be scrutinised?

The government’s focus is now on a transition period, with employers starting to take back responsibility for the cost of their workforce. In the absence of further detail, it is unclear if employers will be required to justify decisions made to retain employees on furlough until the end of October. Employers may be required to justify their decisions made about keeping employees on furlough throughout the extended period. The furlough scheme is not there to avoid dealing with problem employees. At some point concerns will have to be addressed.

The furlough scheme extension will continue to protect many jobs as the economy recovers. While waiting to learn more about the changes to the scheme from August, from an employment law and people management perspective employers should now start to sketch out the future for its operations and the workforce.

FG Solicitors are experts in all areas of Employment Law and HR, and we can slide your business through the business recover stages. Feel free to call us on 0808 1729 322 for a no obligation discussions.

This publication is for general guidance only. Advice should be taken in relation to a particular set of circumstances.

 

 

THE CHANGING FACE OF WORK!

THE CHANGING FACE OF WORK!

For the last two decades the notion that innovations in industrial and manufacturing processes and a digitised professional services industry, would lead to a shorter working week and increased leisure time has been a common feature of work analysis in the United Kingdom.
The idea that we may all be required to work less or, at the very least,  differently has now been brought back into sharp focus by the current COVID-19 pandemic.  On 31 January, the UK saw the first reported case of viral infection and it can scarcely be believed that by 20 March, all restaurants, pubs, clubs, and indoor sport and leisure facilities were ordered to close.
On 23 March these measures were tightened further, with wide-ranging restrictions made on freedom of movement, enforceable in law. At the time of writing, it is inconceivable that there will be any relaxation of the current lockdown in the near future.

What does all of this mean for the world of work?

The arrival of COVID-19 took away control of the working environment and created an acute balancing act between economic survival and employee health & safety. The government’s introduction of the furlough scheme offers short term support for the current suspension of commercial activity but not a solution.
In the meantime, employers will be occupied with thoughts of business survival and once this is achieved some very real considerations as to what form the structure and dynamics of the workforce will take in a post COVID-19 era.

Will working from home become the new norm? Will there be a need to have offices and the cost of maintaining them?

If nothing else, COVID-19 has ignited a massive experiment in working life and is allowing businesses to test the various scenarios to see how well they would cope if the current enforced changes became a permanent reality in some form or another. Change of this magnitude will certainly require a cultural and psychological shift on both sides and great preparation will be required if it is to have any chance of success.
For most businesses, having an office is not merely a place to house its workforce, it is also seen as a symbol of success, serving as a magnet to attract custom and to recruit the brightest and the best. Some employers hold the view that true team working requires physical proximity which cannot be achieved through working remotely. It remains to be seen whether the experience and lessons learnt from imposed home working changes that view.

What about businesses with production processes that cannot be performed from home?

Will the push to drive down costs and recover commercial stability result in permanently reduced wages, reduced headcount, and increased outsourcing? These are only a few of the vexed questions employers will need to address during and post lockdown. The exploring and review of all scenarios begins now and employers are well advised to create, maintain and retain the figures and statistical information on which reliance can be based.
It should also be part of the current HR strategy for any employer with employees on furlough leave, to have an established method of global communication with them. COVID-19 has presented businesses with a sea of uncharted water to navigate and this will be the same for employees who are not only pre-occupied with staying safe but will also be concerned with what the future holds. Regular contact has an invaluable role to play in maintaining morale and motivation.

What is the position of the law in all of this?

The government has been keen to point out that the emergency measures introduced to tackle COVID-19 does not displace existing employment law. Even in these challenging times, employers that disregard existing law, do so at their own peril and at a time when they can ill afford to get it wrong.
It has come as no surprise that employers caught with the suddenness of the COVID-19 lockdown and the immediate impact on revenue have put employees into the furlough scheme with a 20 per cent reduction in pay. Employees faced with the prospect of losing jobs have agreed to this reduction with the mind-set that when they eventually emerge from furlough leave, wages will revert to their pre- furlough position. From an employer’s position much will depend on the terms of any agreement put in place to vary the existing contract at the time furlough leave began.
While it may be possible for employers to argue that any change was for a substantial reason justifying the change, maintaining that position in the absence of a proper consultation process may, post-lockdown, result in a demotivated workforce at precisely the time when full engagement is required. This, added to the cost and inconvenience of claims from employees will become a major and unwelcome distraction.
The acid test will be when the 80 per cent of government support is no longer available in the form of furlough leave, as to the level of redundancies that may take place in businesses as a result. At this point, processes will become vital if conflict is to be avoided. The spotlight will largely be on consultation obligations, individual and collective. The accuracy of information held in personnel files will also be of paramount importance in effecting risk-managed change.
It is a safe bet that the road to recovery will be long and challenging for both employers and employees. Returning to an optimised way of working will require enormous effort. Individuals may well be affected by bereavement, the uncertainty over the normal operation of schools will undoubtedly present challenges for employees with children. All factors which will need to be considered and managed when normal service is resumed.
For information and support please do not hesitate to contact Floyd Graham or a member of the Employment Law Team of FG Solicitors on 01604 871143 or visit our website for answers to frequently asked questions relating to COVID-19.

Human resources, business continuity and the coronavirus…What’s your “Plan B”?

Human resources, business continuity and the coronavirus…What’s your “Plan B”?

If your people are a business-critical resource, a coronavirus epidemic could be a real threat to business continuity. While the spread of the virus cannot currently be stopped, should the situation become severe in the UK a contingency plan could make the difference between staying in business or having nothing to return to once the crisis is over.

The information below covers some of the main considerations that will help you identify your people-related risks and plan to mitigate the effect those risks may have on your business. The focus should be on creating a “Plan B” If there is a coronavirus epidemic in the UK.

Employer obligations

Employees’ health and safety must be a priority, which should include:

  • Ensuring that risks are monitored on an ongoing basis; any recommendations must be communicated and implemented as quickly as possible.
  • Recognising that the risk of infection will also arise during a commute to work, a business trip or moving between sites. The duty of care may extend beyond the workplace and adjustments may need to be made to these arrangements.
  • Complying with official guidance. The government, the NHS, Public Health England, the Foreign and Commonwealth Office are issuing information daily with the focus on curtailing the spread of the virus.
  • Being alert to employees who may be more vulnerable to becoming seriously ill i.e., those who have an impaired immune system, are pregnant or are older. Additional protection and flexibility may be needed in these cases.
  • Discouraging employees with coronavirus symptoms from attending work.

Employers are under a duty to ensure the health and safety of their employees and to provide a safe place and system of work.

Infection prevention and control

Practical considerations include:

  • Alerting staff to the symptoms and risks of the coronavirus.
  • Requiring sick employees to stay at home. Employers with a culture which discourages ill health absence may have to think again.
  • Knowing what to do if someone is taken ill at work with suspected coronavirus. Following the official guidance about curtailment and hygiene is important.
  • Reviewing overseas business travel before each trip to identify if travel is to an area classified as high-risk. Other considerations are whether travel insurance covers medical repatriation and the adequacy of local healthcare. Follow official advice to avoid putting employees at risk.
  • Discouraging attendance at large gatherings whether on business or social outings.
  • Introducing a return to work guideline to cover those who have travelled to at-risk areas for a holiday or business purposes.
  • Requiring visitors to complete health/travel questionnaires to understand if they have been in contact with a person infected with coronavirus or have recently returned from an at-risk area.
  • Encouraging good hygiene practices. Circulating information posters and bulletins is a good means of boosting compliance. Promoting regular handwashing with soap, the carrying and use of tissues and the use hand sanitising gel and antibacterial wipes is essential in limiting the spread of infection. Public Health England have published some useful posters which can be used.
  • Investing in additional cleaning to ensure shared spaces and hard services such as phones, door handles and IT equipment are regularly disinfected.

Clear guidance will play a significant role in minimising the spread of the virus. Employees also have a duty to ensure that they do not endanger themselves or the health and safety of others.

Absences en masse

Key considerations if employees cannot or should not come into work are:

  • Identifying key personnel and deciding how their absences would be managed.
  • Reviewing or considering remote working practices for staff.
  • Ensuring that adequate resources and controls are in place to support homeworking.

Not planning for people-related risks could have a detrimental effect on operational efficiency and difficult to address in the event of a pandemic.

Dynamic communications  

Any effective plan will rely upon:

  • Ensuring that there is a reliable and effective system for communicating with employees.
  • Maintaining up to date contact data for employees, which is accessible remotely.
  • Having individuals who are responsible for staff communications.
  • Keeping employees up to date with developments.
  • Implementing an emergency communication system and ensuring it is easily accessible and publicised.
  • Ensuring all relevant stakeholders are included in any communications relating to the workforce i.e., employee representatives and trade unions.

The plan should be monitored and adapted to reflect official guidance as it develops in response to the spread of the coronavirus.   

Review of HR policies and procedures

Key policies and procedures for review will include:

  • Remote and home working – Would your rules have the flexibility and controls in place to manage alternative working arrangements away from work?
  • Dependent care leave – Ensure that it is clear when employees can take time off to care for sick dependents. More time may be needed than usual to provide urgent care. Consider also what medical information is required before the employee is permitted to return to work.
  • Absence management – Review any requirement that an employee must return to work as soon as they feel well. Instead, should a returning employee be required to provide medical guidance that they are no longer infectious?
  • Sick pay – Review your current sick pay arrangements to understand what the maximum cost to the business could be in the event of an epidemic. Is it possible to mitigate these costs?

The aim of any review will be to understand if current practices are fit for purpose in the case of an epidemic. If practices need to be modified or suspended employees’ existing statutory and contractual rights need to be acknowledged when doing so. A failure to do so could potentially give rise to constructive unfair dismissal claims.

Prepare for disputes

Management needs to be prepared to deal with conflict which may include:

  • A refusal to work due to health concerns. Employees need to proceed with caution given the special protection employees have when they raise concerns about health and safety or in whistleblowing cases.
  • A refusal to go home where there is a health risk.
  • Excessive leave or doubts over the genuineness of the illness.
  • Where leave is unpaid.
  • Where practices are applied inconsistently. This could give rise to complaints of discrimination or that there has been a breach of trust and confidence. For example, where some employees are paid discretionary sick pay and others are excluded or employees are targeted due to their apparent ethnicity or race.

Any conflict should be managed fairly and in accordance with the appropriate procedure.

While the outbreak of the coronavirus may not have same impact it is currently having elsewhere in the world. UK businesses cannot afford to ignore or underestimate the risk if there is a severe outbreak. In most cases, crisis management can be costly and have limited effect. Whereas planning ahead will ensure that you are ready for anything.

If having a “Plan B” is you preferred option, let FG Solicitors help you to identify the specific risks your business faces and build a strategy to mitigate the impact.

Protected Conversations Must Remain Secret

SUMMARY: Learn more about protected conversations with your employeesPrivate conversations

In 2013 there was a welcome change, which now enables employers to have what are called protected conversations with their employees about ending the employment relationship.  Previously, employers had been nervous about having such conversations, due to the risk that an employee would later rely on what had been said as evidence in an unfair dismissal claim.

Since then employers in some circumstances have been able to speak more freely with those employees who are not considered to have a future with the organisation, usually because their performance or conduct is substandard. Once the discussions have started, there are likely to be two outcomes:

  1. The employee agrees to leave and their departure is managed with a settlement agreement to remove the risk of any tribunal claim. To learn more about settlement agreements, please click on the following link – http://www.fgsolicitors.co.uk/news/settlement-agreements-a-perfect-ending/
  2. The employee declines the offer of an agreed departure.  If that is the case, the employer can then go back to its internal procedures to manage the situation. If the employee is subsequently dismissed, the following protection arises so that there can be no reference to either:
  • the content of any settlement offer or the pre-termination discussions; and/or
  • the fact an offer has been made or pre-termination discussions have arisen. This level of protection has recently been confirmed by the Employment Appeal Tribunal, which explained that an employee should not be able to refer to the fact discussions have taken place pre-dismissal in an unfair dismissal claim.

Clarification was also provided that the protection extends to any internal discussions between different managers and human resources.

Protected conversations are potentially a safe way of managing straightforward people management issues. Employers however wanting to have such discussions should be aware of the following:

  • The protection is lost if either party engages in improper behaviour including for example, bullying, harassment, discrimination, victimisation, physical assault, or undue pressure.

Telling an employee that the capability or conduct procedure will be invoked if terms cannot be agreed would not be improper behaviour.  Stating that the individual would be dismissed if they do not agree to leave would be improper behaviour.

  • The employee should be given a reasonable period of time to consider any offer and take advice; ten days is usually considered to be reasonable in most cases.  Although there is no statutory right to be accompanied at any meeting where a protected conversation takes place, as a matter of good practice an employee should be entitled to be accompanied by a work colleague or a trade union representative.
  • The protection will only apply in respect of “ordinary” unfair dismissal claims. Where an employee brings proceedings for automatically unfair dismissal (for example, whistleblowing or health and safety), or any other claim such as discrimination or breach of contract, the protection afforded to pre-termination negotiations will not apply.  This does therefore create inherent uncertainty in the effect of initiating a pre-termination negotiation until an employee commences proceedings, or decides not to do so as settlement terms have been agreed.

If you consider that you may want to have a protected conversation with an employee, it is preferable to take legal advice before doing so.  This will ensure that you are confident that a protected conversation is the right way forward and if not, what other ways there are to managing the situation.

Contact Details

To explore how protected conversations and settlement agreements can provide solutions to workplace problems – please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

FG Solicitors’ quick guide to key payments by employers

As part of our popular “quick guides” series, our team of employment law experts has produced an easy to use guide to key payments by employers. For more comprehensive advice on payments which should be made as well as when employees qualify for them, please contact a member of our team using the details below.

STATUTORY WEEKLY PAYMENTS DURING ABSENCES FROM WORK

April 16

Maternity/adoption pay prescribed rate (max)

£139.58

Paternity pay (max)

£139.58

Shared parental pay (max)

£139.58

Sick pay

£88.45

Lower earnings limit  (a)

£112.00

 

NATIONAL MINIMUM WAGE RATES (HOURLY)

April 16

October 16

Apprentices  (b)

£3.30

£3.40

Age 16-17

£3.87

£4.00

Age 18-20

£5.30

£5.55

Age 21-24

£6.70

£6.95

National Living Wage (Age 25+)

£7.20

£7.20

 

KEY COMPENSATION LIMITS

April 16

Week’s pay

£479

Statutory redundancy payment: up to 30 weeks’ pay

£14,370

Unfair dismissal basic award: up to 30 weeks’ pay

£14,370

Unfair dismissal compensatory award  (c)

£78,962

Breach of right to be accompanied: up to 2 weeks’ pay

£958

Breach of flexible working regulations: up to 8 weeks’ pay

£3,832

Failure to give written particulars of employment: 2 or 4 weeks’ pay  (d)

£958 or £1,916

Breach of contract claim in employment tribunal

£25,000

Failure to inform or consult: collective redundancy  (e)

90 days’ pay

Failure to inform or consult: TUPE transfer  (e)

13 weeks’ pay

…….

Key:

(a). To qualify for these payments, in addition to other criteria such as length of service, the employee must earn the same or more than the weekly lower earnings limit (“LEL”), which is set by the government. The LEL from April 2016 is £112.00 before tax.

(b). Only applicable to those under 19 or in the first year of their apprenticeship. For all other apprentices, refer to age bands.

(c). Maximum compensatory award is lower of statutory limit or 52 weeks’ actual gross pay at the time of dismissal. Limit does not apply where reason for dismissal or redundancy selection is carrying out health and safety activities or making a protected disclosure.

(d). Please see our guide to essential contracts.

(e). Calculated by reference to employee’s actual gross pay – the limit on a week’s pay does not apply.

Contact Details

For more details about amending handbooks or contracts of employment or consulting with your workforce please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Contract Essentials

Contract sorter - FG Solicitors

SUMMARY: With unemployment rates at an all-time low we are frequently asked by clients whether they can use the same contracts for each type of employee or worker they engage. The short answer to that question is “no”. As there are a number of contracts and agreements widely available to organisations, we have produced a quick guide to the key contracts.

Type of contract/agreement

Who does it apply to?

Who should it not be used for?

When should your organisation use this contract/agreement and what are the key considerations?

Directors’ Service Agreement

Any Executive Director

Employees generally

Apprentices

Temporary Workers

Zero Hours Casuals

Consultants

Non-executive Directors

  • It is a legal requirement to provide specific terms and conditions within 2 months of an employee commencing employment. Although a standard employment contract can be used, businesses often prefer using Directors’ service agreements due to the additional obligations owed by directors.
  • For owner managed businesses these agreements are favoured to provide protection of the directors’ rights on the sale/transfer/takeover of a business.

Employment Contract

Employees (including directors where a Directors’ Service Agreement is not in place)

Apprentices

Temporary Workers

Zero Hours Casuals

Consultants

  • It is a legal requirement to provide specific terms and conditions within 2 months of an employee commencing employment.
  • Contracts can be standardised for differing categories of employee within the business such as managers, shift workers or home based employees.
  • The contract can include additional protections for the employer such as post-termination restrictions, confidentiality and intellectual property rights – particularly relevant for a number of industries including IT, Professional/Financial Services and Pharmaceuticals. These need to be tailored to the organisation’s needs.
  • Employment contracts for part-time employees need to include specific provisions to ensure entitlements are accrued on a pro-rata basis.
  • Employment contracts for fixed-term employees need to include specific provisions relating to the termination of the employment.

Apprenticeship Agreement

Apprentices (on a work-based training programme).

Employees (including directors)

Temporary Workers

Zero Hours Casuals

Consultants

  • Apprentices are employees and the legal requirement to provide specific terms and conditions within 2 months of the employment commencing applies.
  • Failure to ensure the appropriate apprenticeship agreement is in place, can result in apprentices having rights which can make it difficult and costly to terminate their employment before the end of the apprenticeship.
  • The agreement will include specific provisions relating to the termination of the employment.
  • The agreement can include additional protections for the organisation such as post-termination restrictions, confidentiality and intellectual property rights – particularly relevant for some industries typically associated with apprenticeships such as the IT industry. These need to be tailored to the organisation’s needs.

Zero-hours Casual Worker Agreement

Zero Hours Casuals

Employees (including directors)

Apprentices

Consultants

Directors

  • The agreement will make it clear that it is intended the individual is a worker, rather than an employee, so does not have employment rights.
  • The agreement will set out how work will be offered and accepted.

Consultancy Agreement

Consultants (individuals who are self-employed or whose services are provided through a service company)

Employees (including directors)

Temporary Workers

Zero Hours Casuals

Apprentices

Directors

  • The agreement should specify that the individual is not a worker or employee, but is self-employed or engaged by a service company*.
  • The agreement will detail the basis on which work is offered, payment (including the submission of invoices) and where tax liability sits.
  • It is prudent to set out whether the consultant will have the benefit of various employment rights, or the more limited rights available to workers.
  • The agreement should clarify whether the individual is owed health and safety duties or whether the individual (as an independent contractor) is responsible for their own safety.
  • The agreement can also include additional protections for the organisation such as appropriate restrictions, confidentiality and ownership of intellectual property rights – particularly relevant for a number of industries including IT, Professional/Financial Services and Pharmaceuticals. These need to be tailored to the organisation’s needs.
  • The agreement should also contain appropriate termination provisions and/or substitution rights.

*Organisations are advised to take advice on the practical workplace arrangements and obligations when engaging consultants as these considerations will factor when determining if the “consultant” is, in fact, an employee.

Secondment Agreement

Secondees

Consultants

Zero Hours Casuals

  • Specific agreements should be put into place where the employer intends to temporarily transfer an employee from one organisation to another.
  • The agreement will set out details of the relationship between the two organisations and the employee.
  • The agreement will deal with the employee’s employment status, payment arrangements, day to day management arrangements and the corresponding liabilities.

 

 

Contact Details

For more details about any of the above contracts, or if you just want someone to check that your current contracts are up to date, please contact a member of our Employment Law team:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

On the 7th Day of Christmas…

7th Day of ChristmasOn the 7th day of Christmas my employee said to me… “I’ve had too much to drink at the Christmas party.”

Many employers celebrate the festive season by providing alcohol for employees at the Christmas party. It is easy to forget that in this season of good cheer employment law still applies and if alcohol is to be served at a work event, employers should consider the following to manage any potential legal risks:

  • Having a policy in place setting out the standards of conduct expected at work social events and the consequences of breaching the policy. The policy should be brought to the attention of all employees prior to any Christmas party.
  • Ensuring that the event is as inclusive as possible to avoid complaints of discrimination. Non-alcoholic drinks should be available for employees who do not drink alcohol for religious or other reasons.
  • Keeping an eye out for younger members of staff as employers cannot serve alcohol to under 18s. This is becoming a more relevant consideration as the number of apprentices increase in the workplace.
  • Having the party at a licensed venue. Whilst this will not entirely absolve the employer from its duty of care to its staff, the venue owner will be responsible for serving the alcohol.
  • Ensuring that the health and safety obligations towards staff are satisfied. Employers need to consider how those who are worse for wear from excessive drinking will be managed and who will deal with this, particularly if there is a free bar. It may be preferable to limit the amount of alcohol that can be consumed and make non-alcoholic refreshments readily available.
  • Making clear what the arrangements are in relation to lunchtime events if alcohol is to be served where employees may be returning to work in the afternoon. Does this provide a health and safety risk for example in a factory setting, or a reputational risk in a customer facing environment?
  • Providing food and entertainment, which can be a distraction to those who may otherwise spend the evening propping up the bar.
  • Reviewing the arrangements for staff to get home safely. There should importantly be a zero tolerance message about drink driving.
  • Taking prompt action if there are conduct issues to be dealt with after the event. This applies equally if complaints are made by employees about harassment… more about this on the 8th Day of Christmas.

This guidance equally applies to other corporate social events at other times of the year.

Contact Details

For more details about the issues in this article please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

On the 4th Day of Christmas…

4th Day of ChristmasOn the 4th day of Christmas my employee said to me… “I can’t get to work because of the snow.”

Although unseasonably mild now, chances are some parts of the country will experience travel disruption due to snow over the coming months and operational efficiency may be significantly affected if staff cannot get to work.

Proactive employers should develop a strategy for responding to this possibility which should include the following key considerations:

  • Health and safety

Health and safety may be called into question where employees indicate that it is too dangerous to travel but are required to continue with their journey and, as such, should not be ignored. Employers need to be aware that employees are protected from detrimental treatment and dismissal for raising concerns on health and safety grounds; raising such concerns could also trigger protection under the whistleblowing legislation.

  • Pay

Usually if an employee is unable to get to work there is no automatic right to be paid. However, before deciding this, existing contractual, collective or custom and practice arrangements already in place need to be considered to establish what rights employees have in relation to pay in such circumstances. Equally, if employees have to be sent home as it is not practicable or safe for the business to remain open, those employees with contractually guaranteed hours or salary will still have the right to be paid unless the contract provides otherwise.

Employers should always check for appropriate clauses in contracts before deducting pay for non-attendance.

  • Flexibility

Taking a flexible approach to working hours and the place of work may be a possible solution for some employers, examples of possible approaches include:

  • homeworking;
  • allowing employees to work at another site, which is more easily accessible;
  • allowing staff to make up the missed hours;
  • treating the time as annual leave; or
  • offering time-limited paid leave.

This approach will however need careful planning and communication to avoid future pitfalls.

Whatever your business strategy, planning ahead will be key to minimising business disruption and at this stage it may be useful to involve employees in the process as they too could provide valid solutions to the problem.

Contact Details

For more details about the issues in this article please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Can Employers Test Employees for Drug Use?

FG Solicitors - Drug Free Zone (cropped)SUMMARY: As drugs testing has become a more common consideration in the workplace, employers need to ensure their testing practices are legally compliant.

Why should employers be concerned about drugs and alcohol at work?

Employers want to ensure that employees are carrying out their roles effectively. This may not be the case where employees are under the influence of drugs or alcohol, which can result in (amongst other concerns) impaired job performance, health and safety concerns, increased short-term sickness absence and a deterioration in their relationships with colleagues, customers or managers.

In addition, possession of some drugs is illegal and employers could be breaking the law if they knowingly allow drug-related activities in the workplace and fail to act.

When can employers test employees for drug use?

It is possible for employers to carry out drug screening, but the screening should be justified, necessary and proportionate. An employer is likely to be able to justify screening where working under the influence of drugs could give rise to:

  • health and safety considerations (eg. where staff drive, or operate machinery, or where accuracy or decision making impacts on the health and safety of others); or
  • serious damage to the employer’s business.

If an employer cannot show the above, it is unlikely that screening would be appropriate and if it is carried out they could be in breach of legislation such as the Data Protection Act 1998.

If testing is necessary, employers should take into account the following key points when testing for drugs:

  • Testing should be carried out with the employee’s consent (although an employer may make withholding consent a disciplinary matter).
  • Employees should be told what drugs are being tested for.
  • Testing should be limited to those substances which could adversely affect the employee’s  performance.
  • Employees should be told what could be the possible consequence of their refusal to submit to testing or for failing the test.
  • Testing should not be carried out on samples obtained without the employee’s knowledge.
  • Employers should not single out particular employees for testing unless this is justified by the nature of their jobs.
  • Employers should use a reputable and recognised means of testing.
  • Employees should be given the opportunity to see and challenge the test results, including providing them with duplicate samples so they can carry out their own independent checks.

Case example

One example of where an employer could justify carrying out drug testing is where the employer is a bus company and its drivers are tested; it is imperative for health and safety reasons that they are not under the influence of drugs when they are conveying a bus load of people.

However, an employer should be careful with the results of any such testing and should bear in mind that tests are not infallible. Even if test results are positive, this does not remove the requirement under the ACAS Code of Practice to carry out a reasonable investigation.

First Bus is recently reported to have discovered the importance of carrying out an investigation after it dismissed a bus driver who tested positive for cocaine. First Bus apparently would not listen to his alternative explanation for the positive saliva test; at the tribunal his solicitor argued he had handled hundreds of pounds of cash on the day of the test, which could have been contaminated by cocaine. He took a hair test himself, which showed no traces of cocaine in his system. Ultimately, the employment tribunal is reported to have awarded him the maximum amount of compensation for unfair dismissal.

This case highlights the importance of carrying out a meaningful investigation before any decision about disciplinary action is taken, which would include permitting the employee to challenge the results and put forward their own version of events.

Substance Misuse Policy

The Information Commissioner’s Office Employment Practices Code suggests that a drug or alcohol policy (which we refer to as “substance misuse”) should be contained within a staff handbook.

A substance misuse policy usually includes clear rules relating to the employer’s stance on coming to work under the influence of alcohol or drugs (whether prescribed, over the counter or controlled substances) and about drinking alcohol or drug taking while at work.

It could also set out details of any drug screening (and alcohol testing), which should include the circumstances in which drug screening would be undertaken. For some employers, it would not be appropriate to include drug screening, for the reasons set out above.

Finally, one advantage of a substance misuse policy is that the consequences of a breach of it (such as disciplinary action) can be made clear to employees. This is key to ensuring any dismissal which may occur is fair.

Conclusion

In answer to the title question: yes, employers can carry out drug testing, but only in limited circumstances, usually related to health and safety, and it is good practice to have a drug/alcohol/substance misuse policy.

Contact Details

For more details about how to deal with drug issues which may arise in the workplace or if you would like a substance misuse policy please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Employee Vs Employer Over Alleged Inadequate Investigation

Inadequate InvestigationSUMMARY:  In the recent case of Coventry University v Mian, the Court of Appeal considered whether an employer had breached its duty of care to an employee by bringing disciplinary proceedings against them after an inadequate investigation.

Legal background

A disciplinary investigation needs to be undertaken in a manner which is “reasonable in all the circumstances”, judged objectively by reference to the “band of reasonable responses”. What this means in practice is that an employer will need to investigate sufficiently to ensure that the substance of the allegations is clear, in order that these can be put to the employee in sufficient detail to enable a meaningful response. The person who appointed the investigating officer should decide at the end of the investigation what the next steps should be, in view of its findings.

Employers have a duty to take reasonable care for the health and safety of employees in the workplace and there is an implied term of mutual trust and confidence in all employment contracts. Employees could bring a personal injury claim if this duty is breached.  They would need to show that the employer has breached the duty of care, that this breach has caused the employee injury and an injury of that type, as a result of the breach, was reasonably foreseeable.

Facts of this case

Dr M was employed by Coventry University. One of her colleagues, Dr J, left to take up a post at Greenwich University.

Greenwich University contacted Coventry University expressing concern about a “large disconnect” between statements made in Dr J’s reference and his performance. The reference was purported to be written by Dr M and it was agreed that this reference was inaccurate.

The Associate Dean of the Faculty investigated how the reference had been provided.  As part of the investigation, the Associate Dean discovered 3 other draft references for Dr J saved on Dr M’s hard drive and obtained the view of Dr M’s line manager (Dr C) who doubted that the signature on the reference was Dr M’s. The Associate Dean then invited Dr M to a meeting.  She said that she had agreed to be a referee for Dr J and that he had provided references he would like her to produce, which she had saved onto her H drive. These contained false, misleading and inaccurate statements which she had refused to use. She had written short references for him instead but had deleted these from her computer.  She had retained the longer references prepared by Dr J, to keep him quiet. She felt intimidated by Dr J, but had not raised this with Dr C.

The Associate Dean sought further information from Dr C about relations between Dr M and Dr J.  Dr C advised that Dr M had not complained to her about Dr J’s behaviour. As far as she knew, relations between Dr M and Dr J were cordial.

The Associate Dean considered that Dr M had a case to answer for gross misconduct. He recommended disciplinary proceedings to consider the allegation that Dr M had been complicit with Dr J in the preparation of false and misleading employment references. After consultation with the University’s HR department, it was decided that disciplinary proceedings should be instigated.

After being invited to a disciplinary hearing, Dr M was signed off sick and the hearing was delayed for several months. An independent assessor eventually dismissed the allegations.

Dr M did not return to Coventry University and she brought proceedings arguing that in commencing disciplinary proceedings without undertaking further enquiries, the University had been in breach of contract and/or negligent so as to cause her psychiatric injury.

A judge upheld Dr M’s claim and Coventry University appealed this decision.

The Court of Appeal’s decision

The Court of Appeal allowed the appeal and dismissed Dr M’s claim.

The Court of Appeal held that the judge had ended up substituting his own judgment for that of Coventry University.

The test the judge should have applied to the facts to decide whether there had been a breach of duty was whether the decision to instigate disciplinary proceedings had been “unreasonable” in the sense that it had been outside the range of reasonable decisions open to an employer in the circumstances. Reasonable people could reach different judgments on the same question and it was possible to be “wrong”, in this case about either the basis on which the investigation should have been undertaken or about Dr M’s culpability, without being negligent.

A reasonable employer could have concluded that there was a case for Dr M to answer on a charge of gross misconduct, on the basis of the evidence available at the time proceedings were instigated. This evidence included, in particular:

  • The finding of the three false references for Dr J saved on Dr M’s computer.
  • The fact that if Dr M had no involvement in the production of the reference for Greenwich University then Dr J must have intercepted Greenwich University’s request from her pigeon hole in a manned office without her knowledge. Two members of staff at the University thought this was implausible.
  • Dr M had not mentioned her concerns about Dr J to anyone. The fact that she had asked him to be an examiner for one of her PhD students, her agreement to be his referee and giving him access to her computer may have indicated Dr M and Dr J were on better terms than she suggested. Alternatively, her description of being intimidated by him could reasonably be considered to be consistent with her having been “persuaded” to reluctantly do something for Dr J, such as sending a false reference.

While Dr M strongly denied any complicity with Dr J, her account ultimately depended on her credibility.  Coventry University might have decided to accept her explanation on the basis of her otherwise excellent reputation, and to take the matter no further, but it was not unreasonable for it not to do so, and to instigate disciplinary proceedings, given some of the peculiar features of the case. Support for this decision also came from the fact that the independent assessor had not dismissed the case against Dr M out of hand.

A disciplinary hearing would permit the evidence on both sides to be considered, and a determination made as to the rights and wrongs of the case by an assessor.

What does this mean for employers?

Although the employee was ultimately unsuccessful in this case, it is clear that employees can bring a claim for negligence against employers who bring disciplinary proceedings against them without undertaking an adequate investigation first. This case illustrates the need for employers to undertake thorough investigations into disciplinary allegations.

It is important for an employer to clearly define the allegations at the outset. The investigation should involve searching for relevant contemporaneous evidence and speaking to each relevant witness before putting the allegations to the individual who is the subject of the allegation. The more serious the allegation, the more thorough the investigation needs to be. The employee needs to have a clear understanding of what the allegations are and the investigator should be careful to ensure that any issues that arise as a result of an interview are followed up before a decision on the pursuit of disciplinary proceedings is made.

Contact Details

For more information about this case or conducting investigations and commencing disciplinary proceedings, please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.