PBS HR Newsletter – May 2018

CIPD Launches Job Quality Measures

The CIPD has launched what it says is the first comprehensive measure of job quality in the UK.  Its new annual UK Working Lives survey looks at seven dimensions of job quality, measuring how important each one is to workers.

The launch of the survey follows the government’s response to the Taylor Review, which called for a measure of job quality across all levels and sectors..

This year’s results show that while overall satisfaction with work and jobs is reasonable, there are a significant number of people who are not satisfied. The CIPD claim that there are some major systemic issues with overwork, stress and a lack of training and development.

The survey found that 64% are satisfied with their job overall. However, middle managers and those at low levels face significant challenges with stress and a lack of support. More than a third (37%) of workers in low-skilled and casual work stated they had not received any training in the last 12 months, while two in five (43%) said their job did not give them opportunities to develop their skills.

Meanwhile, the research suggested that high workloads among middle managers are having a detrimental effect on their health and wellbeing. Three in 10 (28%) said work has had a negative impact on their mental health, while over a third (35%) said that they have too much work to do.  Those at the top were found to be the most satisfied at work, and felt less pressurised than middle managers. Poor work/life balance was found to be the main drawback of these roles, with 28% saying they found it difficult to fulfil personal commitments because of their jobs.

The report made a series of recommendations for employers, including offering clear pathways for progression, increasing opportunities for flexible working, conducting stress audits, and signposting support services to staff.

Peter Cheese, chief executive of the CIPD, said that while the news of strong job satisfaction should be welcomed, there are still structural issues within the labour market that have to be addressed.

“Those in management positions are often overworked, which can not only lead to stress and poor mental health, but also means they are not able to manage their teams to the best of their ability,” he said. “Stress in the workplace passes down, and combined with the concerning lack of training and development opportunities for those in low-skilled work is a heady mix that needs to be better understood and addressed to enable better productivity and wellbeing across all organisations.”


Significant redundancy notice ruling

A ruling was announced this week on the case of Ms Sandi Haywood, a former Associate Director of Business Development at Newcastle Upon Tyne Hospital Trust, who had served with the NHS for over 30 years.  The case had been originally upheld by both the High Court and the Court of Appeal. In what represents the final decision on the matter, the Supreme Court dismissed the appeal of the NHS, ruling in favour of Ms Haywood, awarding her just under £400,000 in damages.

The original incident occurred in April 2011 when the Trust informed Ms Haywood that her role was at risk of redundancy following a recent merger.  She was set to be absent from work on a pre-booked overseas holiday shortly after the initial discussion and asked the Trust to refrain from making a final decision until she returned on 27 April.  Both parties knew that if her employment terminated before her 50th birthday she would not be entitled to receive an early retirement pension worth approximately £400,000.

However, the Trust issued an official redundancy notice on 20 April, which it sent by recorded delivery to her home and by email to her husband’s email address. Haywood’s father collected the letter from the Post Office on 26 April and she opened it when she returned home the following day. Her husband read the email notice on 27 April.  Haywood was entitled to 12 weeks’ notice and the crucial date was 27 April. Notice given on or after that would expire on or after her 50th birthday and would trigger her right to receive an early pension.

The Trust argued that the notice was effective from the date of delivery (which in this case was 26 April), but Haywood argued it was effective from the date she actually read it (the following day). The High Court and Court of Appeal ruled in Haywood’s favour, so the Trust then appealed to the Supreme Court. By majority the Supreme Court decided that notice could only run from the date an employee receives written notice of their dismissal and has had a reasonable opportunity to consider it. This ruling has been heralded as a landmark case by the claimant’s legal team as this  interpretation will now be implied in every contract of employment unless the contract between the parties expressly provides for a different interpretation.

Employers should, therefore, ensure that their employment contracts set out how notice can be served and when it will be considered to have been received. If Haywood’s contract had said that written notice will be deemed to have been sent by first class post 48 hours after the time of service, or if sent by email 24 hours after sending, the Trust would have been able to terminate her contract before her 50th birthday and avoid triggering her entitlement to receive an early pension.

Government consult on parental bereavement leave

The Parental Bereavement (Leave and Pay) Bill, which was first published in Parliament in October 2017, proposes increasing protection for working parents who suffer the loss of a child under the age of 18. In proposing a day one entitlement to a two-week period of statutory bereavement leave, the government wish to create a legal structure for bereavement leave for the first time, although restricting it to a prescribed category of employee.

The government have announced an open consultation period to seek public opinion on aspects of the bill. Following an acknowledgement that family dynamics are often much more diverse in nature, the public have been invited to share their views on whether foster parents, adoptive parents, grandparents and aunts and uncles should be afforded these same protections.  The government also want opinions on the proposed length of the leave and practical suggestions on how and when the leave should be taken. Whilst recent policies such as Shared Parental Leave have sought to increase flexibility for employees, the government have acknowledged the need for employers to have a degree of certainty over when and how their employees can take parental bereavement leave.

Additionally, opinions are being taken on how best to provide evidence of an employee’s right to take parental bereavement leave and pay to enable a balance to be struck between respecting an employee’s privacy and protecting against any fraudulent misuse of these provisions.

Whilst many employees feel the need to rush back to work after the loss of a child, allowing a period of time off to grieve is often effective in helping overcome bereavement in the long term. Money pressures often act as an influential push factor forcing employees to return to work before they are ready to do so. The bill proposes that eligible employees, with at least 26 weeks’ continuous service, are paid during their bereavement leave at a rate of £145.18 per week, or 90% of their weekly average earnings where that is lower. The consultation will run until 8 June 2018.

Calculating part-time holiday leave

In an important Employment Appeal Tribunal Case (Brazel v The Harpur Trust), theTribunal has clarified how a part-time teacher’s holiday pay should be calculated.

Mrs Brazel, a part-time music teacher, worked at a school in term-time on a zero-hour contract, and her hours fluctuated weekly. She had a contractual right to 5.6 weeks’ paid holiday, mirroring her statutory right.  The school calculated her holiday pay using the Acas guidance for casual workers. This is pro rata to the proportion of the year worked so, for her, the calculation was:

5.6 weeks (statutory holiday entitlement) / 46.4 weeks (number of working weeks per year) = 12.07% of her total pay.

However, on a working ‘year’ of 32-35 weeks, this approach disadvantaged her. She had less holiday pay than she would have been entitled to if her holiday pay had been calculated in line with the Working Time Regulation. This looks at the normal rate of pay, averaged over the 12 weeks prior to holiday being taken. In this instance, the school were required to take a 12-week average of pay from weeks actually worked, ignoring out-of-term weeks.

The appropriate calculation is therefore:

46.4 (number of working weeks per year) / 32 (number of working weeks per school year) x 12.07% = 17.5%

This case highlights how holiday pay for these types of workers should be calculated in future.

Employees may be putting their health at risk by sticking to inflexible working hours

A joint study undertaken by the University of Surrey and Northwestern University has revealed traditional working hours could create serious health risks for certain employees. The study claims that although ‘early risers’ have little problem with the typical nine to five routine, ‘night owls’ that are forced to stick to the same schedule face the prospect of increased mortality rates.

Researchers have advised employers to acknowledge that certain staff may be better suited to alternative shift patterns and offer the option of flexible working. They claim that allowing these individuals the opportunity to have a lie in and start work later can have significant health benefits.  Sleep deprivation has been linked to a rise in heart disease, diabetes, addiction and mental health disorders, with the papers co-author Prof. Malcom von Schantz declaring the matter a “public health issue that can no longer be ignored”. Lack of sleep can also lead to a financial loss for organisations, costing the UK economy an estimated £40 billion a year in reduced productivity and health, according to a study by Rand Europe.

Under UK legislation all employees have a right to request flexible working after completing 26 weeks’ service with their employer. Requests should be made in writing and clearly state what change in working conditions is being sought. Employers should follow the statutory code of practice on dealing with requests reasonably, which includes discussing the request with the employee. Employers may refuse a request providing the refusal is based on one of the legally permitted reasons.

Employers should avoid dismissing requests for flexible working without due consideration. If the individual making the request suffers from a disability, refusing a request may amount to a failure to make reasonable adjustments under the Equality Act 2010.  When analysing the feasibility of flexible working practices, it is important for employers to consider how it can benefit their workforce. As well as the health benefits, allowing for flexible working can provide greater gender equality for working mothers with ongoing childcare commitments. It can also play a significant role in the engagement of employees, demonstrating a commitment to acknowledging their needs.
Macmillan urges organisations to educate staff and to implement measures to support cancer patients

A recent study conducted by Macmillan Cancer Support has highlighted employees lack of awareness regarding their organisation’s requirement to provide support to cancer patients. More than half (53%) of participants, all of whom had been diagnosed with cancer, did not know that their organisation had a legal obligation to make reasonable adjustments for them.

It is believed this lack of knowledge is a contributing factor to the existence of workplace discrimination, with around one-fifth (18%) of people who returned to work after their diagnosis claiming to have been the victims of discrimination by their employer. In response, the charity is urging employers to consider providing more support in the form of flexible working opportunities and allowing time off for medical appointments.

Under the Equality Act 2010, individuals are automatically protected from disability discrimination from the point of cancer diagnosis. Organisations have a duty to make reasonable adjustments to ensure the individual does not suffer any less favourable treatment because of their condition. Organisations failing to protect employees could face a potentially expensive tribunal claim.

Through their supporting campaign, “Cancer isn’t fair but your boss has to be”, Macmillan seeks to educate employees in their rights should they be diagnosed with the illness. The campaign also looks to support organisations by giving managers and HR professionals access to resources which can help them provide the appropriate support.

Communication is important if an organisation is to protect against disability discrimination. To provide appropriate support to employees who have cancer, line managers should be trained with the necessary soft skills. Initially discussing the diagnosis is often a highly emotive experience for the employee and managers are encouraged to be understanding and professional.

As well as the guidance available through Macmillan, organisations may wish to consider the Acas guide “Disability discrimination: key points for the workplace” (Available in the Free Stuff Folder in the PBS Document Library).  This guide provides further contextual understanding of the effects of various disabilities as well as advice on implementing reasonable adjustments.

Writing references: do we need to investigate old disciplinary issues?

Employers generally have no obligation (except in specific sectors such as finance) to provide a reference for their employees or former employees. However, not doing so when other employees have been provided with references, may lead to allegations of discrimination. Where a reference is provided, an employer has a duty to both the subject of the reference and the recipient to take reasonable care to ensure that the reference is true and accurate, and not misleading. A failure to do so can lead to claims from either the employee or the recipient.

However, in the case of Hincks v Sense Network Ltd, the High Court held that this duty of care did not extend to carrying out detailed enquiries into whether a previous disciplinary investigation was procedurally fair. Rather, when a reference includes an opinion that is based on a previous disciplinary investigation, the obligation on the reference writer is more limited; to ensure they understand the basis for the opinion and satisfy themselves that there was a proper and legitimate basis for it.

In this case, the Claimant, Mr Hincks, was employed as an Independent Financial advisor. Concerns about the advice he had given to clients led his employer to suspend his authority to provide advice and sell financial products and require him to obtain pre-approval for all such activities. However, he subsequently carried out a number of activities, including selling an investment to a client, in breach of this pre-approval process. An investigation was carried out, and the investigator found that Mr Hincks’ breach of the pre-approval process had been ‘malicious’ and that he had attempted to conceal the breach from colleagues. His authorisation to provide advice and transact sales was terminated and his appeal against this sanction was rejected.

When Mr Hincks subsequently sought a reference from his employer, it contained references to the suspension and termination of his authority and stated that he had “knowingly and deliberately circumvented” the safeguards put in place by his employer. In bringing a claim for negligent misstatement, Mr Hincks argued that, as the reference writer was relying on the earlier investigation and its conclusions, they were under a duty to make sure that that investigation was reasonably conducted and procedurally fair. He considered the earlier investigation to be inadequate and claimed that it had led to him receive a reference that was not true or accurate.

The High Court dismissed Mr Hincks’ claim, holding that there were “formidable difficulties” with requiring a reference writer to look into the procedural fairness of previous investigations. In practical terms, such an investigation might not be possible and the reference writer might have access to very limited relevant information about previous investigations.  Whilst a reference writer is required to conduct an “objective and rigorous appraisal of facts and opinion” which emerge from previous investigations and to satisfy themselves that there was a “proper and legitimate basis” for the opinion, they are not obliged to delve deeper into the detail of how the previous investigation was conducted.

Many employers choose to keep references to minimum factual details, unless regulatory requirements in their sector require them to do otherwise. However, it is crucial to ensure, whenever a more detailed reference is provided, that this is well thought out and that a consistent approach is taken.  This Judgment is reassuring for employers, but importantly does not mean that previous investigations can be taken at face value in every case. Especially where there has been a negative outcome, so there is still a responsibility on reference writers to look back at, and think about, previous investigations.

Also, often, an employee may resign pending disciplinary action to ensure a clean disciplinary record. In these circumstances, if information is provided about the reason for employment ending, it may be misleading to simply state that the employee resigned without giving some further context to this. The Courts have confirmed that a former employer will not be in breach of its duty of care to an employee if it provides a reference giving details of disciplinary proceedings which were pending against the employee when they left its employment (as long as it is clear about the status of the proceedings).

This is clearly still a difficult area for employers to navigate and when you are providing a reference that goes beyond the basic factual details it is good practice to ask someone else to look over the reference to give a second opinion, as they may, for example, pick up on something which could be subject to misinterpretation.

This newsletter was curated by Nicole Squires, MA, Chartered MCIPD, an Executive Consultant at People Based Solutions. People Based Solutions is an HR support company that specialises in supporting small and medium sized businesses meet all of their HR commitments. If you want to know how People Based solutions can help you meet your HR and Employment Law obligations click here for your free HR Health Check. Alternatively, you can call us on 01925 425 857, send an e-mail to enquries@peoplebasedsolutions.co.uk or Click Here to visit our website.