We are receiving an increasing number of queries from employers on how they can best assist employees who are neurodivergent (for example those with autism and/or ADHD)

A short video on some key things employers should be thinking about as furlough has now been extended to 31st March 2021.

This afternoon, I had a chat with Karen Collins, Chief Executive of Aware NI, the depression charity for Northern Ireland. We discussed various issues relating to promoting good mental health among employers and employees during the coronavirus pandemic.

I hope this video is useful.

For more information, please visit - https://www.aware-ni.org/covid-19-support

Mark recorded a video on 22nd April, highlighting some of the key points employers should be considering in relation to coronavirus, including:-

- Furloughing

- Annual leave

- Sick leave and shielding

- Getting back to normal after lockdown restrictions are lifted.

The reference to one year’s service should be taken as 2 years’ service for anyone watching in GB.

We hope you find this video helpful. It’s intended as a general guide to some of the key issues to consider. It is not intended to be relied upon as legal advice. For advice on these issues or anything else to do with employment law, please get in touch. .

The implementation of the General Data Protection Regulation (GDPR) on 25 May 2018 means that organisations are looking at how they will comply with the Regulations. One of the questions we are being asked is how long employers are required to keep employee records. 

Neither the Data Protection Act nor GDPR specifies time limits for retention of data.  The emphasis is on the data controller to identify for how long the data should be retained.  Employers should have systems in place to determine when employee records should be destroyed.

One of the Information Commissioner’s “Twelve steps to take now” is to document what personal data you hold, where it came from and who you share it with. It suggests that the data controller may need to organise an information audit.

There are statutory requirements to keep certain employee records for a minimum length of time, as follows:

For other employee records, for example personnel files, the employer should have regard to potential claims that could be brought against it and should ensure that records that could be required as evidence in such cases are kept for the appropriate length of time.

Recruitment records in relation to unsuccessful applicants should be retained for at least a year after the individual has been notified that they are unsuccessful.  An applicant has three months to bring most Industrial Tribunal claims, but the Tribunal can extend the time limit if it considers the extension just and equitable.

For current employees we would recommend retaining the whole personnel file for the duration of the employment.   Historical issues may become important in future legal proceedings.  For example, in an equal pay claim, it may be necessary to look at an employee’s entire employment history to get a full picture of the employee’s promotions, pay increases, grading etc.

For former employees, it will most likely be fine to keep personnel files for no longer than one year after termination of employment. An employee has three months to bring most Industrial Tribunal claims (6 months for a redundancy payment), and the Tribunal can extend the time limit if it considers the extension just and equitable. It is very unlikely that a claim brought by an employee who has left their employment more than one year ago would be entertained by a Tribunal. However, a breach of contract claim can be brought in the civil courts up to six years after the alleged breach so an employer may be able to justify keeping personnel files for this length of time to cover the unlikely scenario of a breach of contract claim from a former employee.

One of the principles of the GDPR is that data held should not be excessive.  This implies that the data controller should sift through data and destroy irrelevant data at some point.  The GDPR places responsibility for deciding how long such information should be retained on the data controller.  We therefore recommend that you firstly identify the employee information you hold, and then consider and document how long your organisation will retain each type of information.  You should then ensure that this is regularly reviewed so that information that is no longer authorised to be retained under your policy, is securely destroyed.

For further advice on this or any other employment law matter, please do not hesitate to get in touch.

It has been hard to escape on the news recently that there have been lots of troubling stories coming to light about abuse of power. We’ve had stories of sexual harassment and assault coming out of Hollywood and recently stories have been emerging of abuses of power in Westminster. It has recently been announced that party leaders at Westminster have agreed a new complaints procedure to investigate allegations of misconduct (http://www.bbc.co.uk/news/uk-politics-41892271)

If allegations of this type are being brought at the highest level of government, how are smaller organisations to respond? What can an employer do to protect its staff from the risk of sexual harassment in the workplace and how should it respond if such an allegation is made?

All employers, of whatever size, would be well advised to take the following steps:-

1. Have an Equality Policy in place that makes it clear that unlawful discrimination / harassment will not be tolerated
2. Make sure that the Equality Policy is kept under review, that it names the person within the organisation who is responsible for implementing the policy, and that that person does in fact lead the implementation of the policy
3. Clearly warn employees that any unlawful discrimination is treated with the utmost seriousness and is likely to be deemed to be gross misconduct. Lists of gross misconduct rules in Disciplinary procedures should make clear that acts of discrimination and harassment are gross misconduct offences
4. Make sure that all employees are familiar with the Equality policy and any other relevant policies which are intended to prevent unlawful discrimination and harassment.
5. Provide training to employees. In particular, employees should be told that it is not a defence to say that the thing said or done was “a joke” or “banter”. Refresh equality training at regular intervals and maintain a record of such training

If, despite taking these preventative measures, an allegation of inappropriate behaviour is made, the complaints should be handled in a prompt fashion and be treated with the priority and seriousness that they deserve.

Employers should keep an open mind when conducting investigations and treat the complainant with empathy, whilst always ensuring that the investigation progresses and difficult lines of enquiry are properly addressed rather than swept under the carpet.

Steps should be taken to separate the complainant from the alleged harasser. This may include suspending the alleged harasser to allow an unhindered investigation to take place. Advice should be sought before suspending an employee. If, after investigation, it is found that the complaint is upheld, the disciplinary procedure should be invoked and the alleged harasser should expect to face an allegation of gross misconduct.

For advice on steps to take to mitigate against the risk of harassment occurring in the workplace or on how to deal with an allegation if one is made, please get in touch.

Last week we hosted another enjoyable training session, this time on “employment contracts”. Our next session is on 23^rd May is aimed at educating employers regarding how to prevent acts of discrimination and harassment in the workplace and how, if an employee is discriminated against or harassed by a colleague, the employer can escape liability.

So, without giving everything away (you’ll have to come to the training session on 23^rd May to get the full picture – sign up at https://www.eventbrite.co.uk/e/training-equality-law-the-reasonable-steps-defence-tickets-30477957391 ), this article gives some general pointers.

Generally, an employer is legally responsible for acts of discrimination, harassment and victimisation carried out by its workers in the course of their employment. It does not matter whether or not the employer knew about or approved of what the worker did.

Often the intentions or wishes of the person discriminating / harassing do not matter and it is how the behaviour is received that is more important.

How can an employer prevent incidents of discrimination / harassment occurring or protect itself from claims if these incidents do occur?

An employer will not be held legally responsible for acts of discrimination or harassment by one of its workers if it can show that it took all reasonable steps to prevent the worker from acting unlawfully.

Employers can do this by:

• Having an Equality Policy in place which sets out what is expected of employees;
• Marking sure that the Equality Policy is reviewed, that it names the person within the organisation who is responsible for implementing the policy, and that that person does in fact lead the implementation of the policy;
• Clearly warning employees that any unlawful discrimination is treated with the utmost seriousness and is likely to be deemed to be gross misconduct, e.g. having appropriate references in the Disciplinary and Grievance Procedures
• Making sure that all employees are familiar with the Equality policy and any other relevant policies which are intended to prevent unlawful discrimination and harassment.
• Keeping adequate and up to date records which can be used to demonstrate that employees are aware of policies and procedures.
• Providing training to employees on equal opportunities and the Policy and refreshing that training at regular intervals.  Records should be maintained.
• Handling complaints in a prompt fashion and treating them with the priority and seriousness that they deserve.
• Keeping an open mind when conducting investigations and treating the complainant with empathy, whilst always ensuring that the investigation progresses and difficult lines of enquiry are properly addressed rather than swept under the carpet.

Beware that to avail of the statutory “reasonable steps” defence, these steps must be taken before any alleged acts of discrimination occur. Also note that an Equality Policy which sets out the standards of conduct for employees but which has not been adequately communicated to staff is likely to attract criticism from an Employment Tribunal, similar to having no policy at all.

If you implement good equality practices in your organisation, you should greatly reduce the likelihood that you will unlawfully discriminate. This should make you significantly less likely to face legal claims against your organisation for unlawful discrimination. Further, your staff will be educated in the behaviour expected of them and this will reduce the risk that they will unlawfully discriminate against, or harass, a colleague.

For more information or advice on this topic, please get in touch or sign up for our seminar – here’s the link again – https://www.eventbrite.co.uk/e/training-equality-law-the-reasonable-steps-defence-tickets-30477957391

When is your “self employed contractor” actually a worker?  In the case of Aslam, Farrar and Others -V- Uber, an English Employment Tribunal has ruled that two drivers who provide services to Uber are ‘workers’ within the meaning of the Employment Rights Act 1996.

Uber is part of the “gig economy”, which is essentially a group of workers who work on demand and are usually engaged as self employed, and therefore not entitled to a range of rights which benefit employees and workers.  Uber engages drivers under a “Partner Agreement” which says that drivers are self employed and required to pay their own taxes. 

The Tribunal found in this case that the drivers were ‘workers’. This means that Uber drivers will be entitled to a limited number of employment rights (but not those that only ‘employees’ benefit from – the drivers did not claim that they were employees, rather that they were ‘workers’).  Amongst other rights, they will be entitled to:-

• ·         5.6 weeks’ paid annual leave each year
• ·         a maximum 48 hour average working week, and rest breaks
• ·         the national minimum wage (and the national living wage)
• ·         protection of the whistleblowing legislation

As they are not employees, they will not be entitled to:-

• ·         the ability to claim unfair dismissal
• ·         the right to a statutory redundancy payment

A “worker” is an individual who has entered into or works under —

(a)a contract of employment, or

(b)any other contract whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not that of a client or customer of any profession or business undertaking carried on by the individual.

In deciding that the drivers were “workers”, the Employment Tribunal based its assessment essentially on the control Uber required to have over drivers, including the following:

1.      Uber interviews and recruits drivers.

2.      Uber controls the key passenger information, including the trip destination, and excluded drivers from it.

3.      Uber required drivers to accept trips and not cancel trips, and enforced this requirement by logging off from the App drivers who did so.

4.      Uber dictates the route that must be followed by the driver.

5.      Uber fixes the fare and the driver cannot negotiate a higher sum.

6.      Uber imposes a number of conditions on drivers (including the standard of car they must use and quality standards).

7.      Uber puts drivers through a rating system which effectively amounts to a performance/disciplinary procedure.

8.      Uber dealt with customer refunds, sometimes without discussing the matter with the driver, when the driver’s income would be affected. 

9.      Uber handles customer complaints, including complaints about the driver.

 Uber last week said it would appeal against an employment tribunal ruling that its drivers should not be classed as self-employed and so should receive the minimum wage.

 Although this decision is fact-specific, and based on Uber’s business model, it increases the chance of other ‘gig economy’ companies facing claims that their ‘contractors’ have worker status. 

In addition, legislation may be introduced in the UK to deal with these situations.  The prime minister, Theresa May, last month commissioned a review of employment practices that is expected to make recommendations for reform.  On Monday, senior Conservative MP Ed Vaizey called for self-employed workers in the “gig economy” to be guaranteed the legal minimum wage.  Employment law is a devolved matter in Northern Ireland, so separate consultation would likely occur before any legislation was introduced here.  However the judgement in this case will influence our own Industrial Tribunals in similar cases. 

Equality law applies whatever the size of your organisation, whatever sector you work in or whether or not you use any formal processes or forms to help you make decisions.

An employer, is legally responsible for acts of discrimination, harassment and victimisation carried out by its workers in the course of their employment. It does not matter whether or not the employer knew about or approved of what the worker did.

Often the intentions or wishes of the person discriminating do not matter. What matters is whether they have acted unlawfully or not. So how can an employer prevent incidents of discrimination / harassment occurring or protect itself from claims if these incidents do occur? 

An employer will not be held legally responsible for acts of discrimination or harassment by one of its workers if it can show that it took all reasonable steps to prevent the worker from acting unlawfully.

You can do this by:

• ·Having an Equality Policy in place which sets out what you expect of your employees in the context of their interactions with their colleagues, customers, suppliers etc;
• ·Marking sure that the Equality Policy is reviewed, at least annually; that it names the person within the organisation who is responsible for implementing the policy, and that that person does in fact lead the implementation of the policy;
•  Clearly warning employees that any unlawful discrimination is treated with the utmost seriousness and is likely to be deemed to be gross misconduct, e.g. having appropriate references in the Disciplinary and Grievance Procedures (our clients can rest assured that the Mark Mason Employment Law Employee Handbook does these things!)
• Making sure that all employees are familiar with the Equality policy and any other relevant policies which are intended to prevent unlawful discrimination and harassment.
• Keeping adequate and up to date records which can be used to demonstrate that employees are aware of policies and procedures.
• Providing training to employees on equal opportunities and the Policy and refreshing that training at regular intervals.  Records should be maintained.
•  Handling complaints in a prompt fashion and treating them with the priority and seriousness that they deserve.
•  Keeping an open mind when conducting investigations and treating the complainant with empathy, whilst always ensuring that the investigation progresses and difficult lines of enquiry are properly addressed rather than swept under the carpet. 

Beware that to avail of the statutory defence, these steps must be taken before any alleged acts of discrimination occur. Also note that an Equality Policy which sets out the standards of conduct for employees but which has not been adequately communicated to staff is likely to attract criticism from an Employment Tribunal, similar to having no policy at all.

In the case of Croft v Royal mail Group, the employer took a number of steps to prevent the harassment of an employee who was undergoing gender reassignment to become a woman.  These included agreeing to change her records, informing that the workforce that she was to be addressed as a woman and stressing their harassment policy.  In that case the employer successfully defended a discrimination claim brought by the employee because they had taken reasonable steps to prevent unlawful discrimination from occurring.

Another example of the statutory defence operating in practice is the case of Caspesz v Ministry of Defence, which involved alleged harassment of a police officer by the Assistant Chief Constable to whom she reported.  The employer was able to successfully defend the claims, as it had a dignity at work policy which had been conscientiously implemented.

If you implement good equality practices in your organisation, you should greatly reduce the likelihood that you will unlawfully discriminate. This should make you significantly less likely to face legal claims against your organisation for unlawful discrimination. Further, your staff will be educated in the behaviour expected of them and this will reduce the risk that they will unlawfully discriminate against, or harass, a colleague, customer or supplier, again, reducing the risk of claims. Taking these steps will ensure that your organisation will be able to defend itself against a discrimination claim, if, despite all your best efforts, discrimination or harassment still occur. 

We can assist you in taking steps to ensure your Equality Policy is implemented.  We can also provide Equality Law Training to employers, at a time and place to suit you and tailored to your organisation.  Please do not hesitate to contact Mark or Sharon if you want to find out more about our Equality Law Training. 

I am regularly asked to advise on the calculation of holiday entitlement, particularly for part-time workers. It can be especially difficult for employers to calculate the entitlements of part-time workers to a pro-rata amount of bank and public holidays. This brief article addresses some of the most commonly occurring scenarios.

All employees are entitled to a statutory minimum of 5.6 weeks’ annual leave. This equates to 28 days for a full-time employee working 5 days per week. There is no automatic right to a day’s paid holiday for any particular bank or public holiday unless the contract of employment provides for this. An employer is at liberty to fix the days on which employees take annual leave and can require employees to work on bank / public holidays. As long as an employee is permitted to take at least 5.6 weeks’ annual leave over the course of the year, the employer will have complied with the statutory requirements.

If the employer’s business closes on a particular bank / public holiday, then the issue of a part-time employee’s right to a day’s annual leave for this day depends on what days they work. If the employer’s business is closed on a day the part time employee normally works, then the employee will be paid for this as a day’s annual leave and one day will be deducted from the employee’s total annual leave amount.

If the employer’s business closes on a day that the employee does not normally work, then the employee is not affected. There is no entitlement to pay for the bank holiday but equally the employee does not have a day’s annual leave deducted from their holiday entitlement.

An example scenario might be helpful. Suppose two employees job share and each work 2.5 days’ per week. One employee works Monday, Tuesday and Wednesday morning and the other works Wednesday afternoon and all day on Thursday and Friday. The employer’s annual leave year runs from 1^st May to 30^th April each year. Assuming the statutory minimum 5.6 weeks’ annual leave, each employee has an annual leave entitlement of 14 days. If the employer’s office closes for the May Day Bank Holiday, the employee who works the first half of the week will have the Monday off as a day’s paid holiday and work the Tuesday and Wednesday morning of that week as normal. This employee will be paid as normal for this week and their remaining annual leave entitlement will be 13 days. The employee who works the second half of the week is unaffected. (S)he will work and be paid for 2.5 days as normal and will still have 14 days’ annual leave to take in the year.

If an employee is contracted to work a certain number of hours or days per week but the days worked vary from week to week, then there is flexibility. For instance, if an employee works two days per week and the days are not set, then in any week where there is a bank holiday (on which the employer’s business is closed), there is freedom to either (1) have the employee work one day that week and give the bank holiday as a day’s paid holiday to be deducted from the annual leave entitlement or (2) have the employee work two other days that week, with the result that there is no reduction in the amount of annual leave left for the employee to take in the remainder of the year.

This issue can be complex but with some clear drafting of contractual clauses around annual leave entitlement, much of the confusion can be avoided.

This article is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to get in touch.