Employers must act on sexual harassment 

In a post-Weinstein era, the Equality and Human Rights Commission has begun to clamp down on sexual harassment at work.  It has written to the Chairs of the FTSE 100 companies and other leading employers demanding evidence that they are proactively working to prevent sexual harassment in their organisations.  The letter asks them to provide details of the steps they have taken to ensure that all employees are able to report harassment and how they plan to prevent it in future.  There is also a warning that they risk facing legal action if evidence is revealed that they have failed to deal with such behaviours.

Meanwhile, a survey undertaken by the Fawcett Society has found that half of all women have suffered sexual harassment whilst at work. The Society have called for changes to be made to strengthen laws in this area, in particular, through reintroducing Section 40 of the Equality Act 2010, which would make organisations responsible for sexual harassment by third parties (eg customers, service users or contractors) if they were aware of previous incidents of harassment by the third party and failed to take reasonable steps to prevent it from happening.

In light of this growing pressure, it is clear that all employers, big or small, need to actively look to address sex discrimination and harassment in the workplace. All employees should undergo anti-discrimination training, ensuring staff are fully aware of what is deemed unacceptable behaviour. Having a clear and effective grievance policy for employees who wish to raise discrimination complaints is also vital.

Poor communication can alienate job applicants

Research undertaken by Robert Half UK found that employers are missing out on top talent because they are alienating candidates with poor communication and lengthy recruitment practices.  A poll of 1,000 jobseekers found that the biggest frustration with job applications is slow feedback from prospective employers about their progress through the application process. This was cited by over half (52%) of candidates.

It found that when professionals are looking for a new job, they do so actively with almost half (46%) applying for ten roles or more at the same time. However, in a market where 93% of businesses say they find it challenging to source skilled talent, employers need to act fast or risk losing talent. The research indicates that seven in ten jobseekers (71%) regularly receive multiple job offers when searching for work, with 35% “often” or “always” getting more than one job offer at one time.

Employers can be found vicariously liable for the acts of their employees

Employers may be found to be vicariously liable for various acts of their employees, even if the employer, itself has done no wrong.   This will generally be the case when the acts of the employee, for which the employer is being held responsible, were carried out “in the course of employment.”  Otherwise, vicarious liability would not apply.

This was highlighted in the recent case of Various Claimants v William Morrisons Supermarkets PLC, where a former employee of Morrisons published a file containing personal information about almost 100,000 employees on a file sharing website. Of these, over 5,500 employees made claims against Morrisons; claiming breaches of the Data Protection Act and of common law duties.

Morrisons argued that the acts of the employee were criminal and designed to harm the employer and could not, therefore, be regarded as acts “in the course of employment”.  However, the court decided that there was a sufficient connection between the role that the employee had with Morrisons and his wrongful acts and found them to be liable. The employee had been employed in a senior IT position and, as part of his role, was entrusted with large amounts of personal data. The fact that Morrisons could not have foreseen that the employee would commit a criminal act with this data and had not broken any data protection principles, did not absolve the employer from vicarious liability for the employee’s actions.

Whilst, Morrisons may well appeal this decision to a higher court, this case is a reminder to employers of the potential impact of employees’ actions and of the potential liabilities that they can face.  Employers should ensure that they have appropriate insurance in place to reduce or mitigate the risk of such situations.  Many scenarios for which employers are vicariously liable for employee acts can be covered by employers’ liability, public liability or professional indemnity insurance, so employers should check their policies carefully.

The case also helps to emphasise the need for organisations to properly prepare for GDPR and to build in security measures, as far as possible, to prevent this sort of illegal disclosure.  In the Morrisons’ case, appropriate measures were put in place, but this did not stop them being found liable.  They may find some comfort, however, in the knowledge that, had these measures not been in place, the impact of the employee’s actions could have been far worse.

Statutory sick pay is deemed ‘manifestly inadequate’

Statutory sick pay arrangements in the UK are in breach of legal obligations under the European Social Charter, according to a report by the European Committee of Social Rights (ECSR).  It found that sick pay and employment and support allowance in the UK are inadequate and do not meet the requirements under EU law, claiming that, in many cases, sick people were receiving less than 40% of the median income of the UK, although some were entitled to claim additional benefits. The report said: “Accordingly, regardless of the additional social assistance benefits which might be available, the committee considers that the level of these benefits is manifestly inadequate.”  Similarly, research undertaken by Vouchercloud in 2016  revealed that the average UK worker is likely to receive 9% of their normal weekly salary across five days of absence, compared with a worker in Liechtenstein who can expect to receive 64% of their weekly salary.

Employees are entitled to receive SSP if they are sick for a continuous period of 4 days (including non-working days) and are unable to attend work as a result. The maximum length of entitlement is 28 weeks, and the rate (which is subject annual reviews) is currently set at £89.35 per week, however this is set to rise to £92.05 per week from 6 April 201  However, a recent Direct Line life insurance study highlights that employees are often unaware of what they would be entitled to if they had to take time off from work due to illness.  Only 4% of participants knew how much SSP they would receive, with many believing they would receive their full salary should they be off sick for a continuous period.

Despite the ECSR report, it seems unlikely that SSP rates will increase significantly. Any potential increase would not likely be welcomed by smaller employers, as it would mean higher payments to their sick employees. Despite this, many larger employers choose to provide employees with a contractual sick pay scheme, offering a period of full or half pay, for example, during sickness absence.

Childcare voucher changes

Whilst anyone already signed up to the existing childcare voucher scheme will be able to remain on it, from April 2018, the scheme will not be available to new applicants.  Instead, the Government will offer employees a tax-free childcare scheme, which will still save employees money on their childcare.  There are, however, a number of key differences between the two schemes.

Childcare vouchers currently operate as a salary sacrifice scheme organised by the employer through the PAYE system. Employees can claim up to £243 per month in childcare vouchers which is deducted from their salary before tax and NI contributions are calculated.  This, therefore, saves the employee money on National Insurance contributions and the employee reduce the amount of tax they pay.

Tax-free childcare, unlike childcare vouchers, will also be available to those who are self-employed. With the new scheme, parents have the responsibility for confirming their own eligibility and managing their own finances, as the payments do not go through their company’s PAYE system.  Also, only one account is needed per child to make the savings, as opposed to both parents being able to claim childcare vouchers.  Childcare vouchers can be used for children up to the age of 15 years, whereas tax-free childcare can only be used for children aged 12 and under.

With just a few months to go before the childcare voucher scheme will be closed to new applicants, employees are encouraged to consider which of the two schemes make the most financial sense for their personal circumstances and to take action, accordingly.

Call for workplace changes to prevent discrimination against transgender individuals

A survey commissioned by Stonewall, a leading LGBT charity, investigated the daily lives of more than 5,000 lesbian, gay, bi and trans (LGBT) individuals across Britain. This found that the workplace continues to cause LGBT individuals considerable difficulties, including many suffering from bullying and discrimination. One in eight trans employees reported being physically attacked by customers or colleagues.  The survey also revealed that 50% have hidden the fact that they are LGBT at work; deliberately disguising their gender identity because they are fearful of discrimination taking place.

To provide support for LGBT staff at work, Stonewall recommends that employers should have in place clear policies on bullying, discrimination and harassment of trans staff to ensure a zero-tolerance workplace. A separate policy should also be developed to support trans employees who are undertaking gender reassignment, covering matters such as using appropriate facilities, dress codes and confidentiality.

Employees who are undergoing, have undergone, or are proposing to undergo gender reassignment are protected against less favourable treatment on the grounds of their gender reassignment under the Equality Act 2010.  Employers are encouraged to remember that transgender or transsexual employees are not required to inform them of their LGBT identity and intrusive questions should not be asked about gender identity.  If the employer is aware of the employee’s LGBT identity, they will need to ensure that they do not ‘out’ the employee, as this is likely to breach their right to privacy. The organisation may be required to disclose the information, such as to inform the employee’s manager of their preferred title or pronoun, however they should meet with the employee and agree the sharing of information with them in advance.

EU citizens’ employment rights post-Brexit

The first phase of Brexit negotiations came to an end in December 2017.  This resulted in a joint report being produced from the negotiators of the EU and the UK Government setting out their “common understanding” on the rights of citizens post-Brexit.  This has, finally, provided some clarity and stability for employers, suggesting that EU nationals currently working in the UK and UK nationals working in Europe will be entitled to remain in their host country post Brexit.

Whilst this does not represent a legally binding agreement, both the UK government and the EU have acknowledged the political importance of this arrangement and, as a result, it is very unlikely that anything which has been agreed will change.  Employers who have EU nationals working for them up to and including the date of the UK’s withdrawal from the EU can continue to employ them beyond Brexit. This will be important for workforce planning for many employers who rely heavily on EU migrants to fill jobs in the UK.  Employers can now continue to attract employees to come to the UK right up to the point of Brexit based on an assurance that they will be able to stay in the longer term.

There are, however, as yet, no such guarantees for EU citizens who wish to come to the UK to live and work following Brexit. This will cause concern for employers, who may find themselves with a particular skill shortage in their organisation if they are unable to access the EU labour market.  Unless new rules are agreed, EU citizens will be subject to the same points-based immigration rules that currently apply to non-EU citizens.  This system is generally considered to be expensive and lengthy and does not cater for lower skilled workers. Therefore, until the UK government is able to confirm if, and how, employers will be able to access the EU labour market following Brexit, much uncertainty still remains.

A survey of UK employers undertaken by Totaljobs and Robert Walters recruitment found that 50% of the 1,355 employers surveyed felt leaving the EU in March 2019 would lead to a shortage of skilled workers.  The shortage will be most acute at the junior and mid-management level, according to half of employers (52%), and nearly a quarter (23%) said Britain is not prepared to compete on a global stage due to its skills gap.  Similarly, a recent report from the General Medical Council has warned that the NHS’s reliance on overseas doctors would leave the health service vulnerable after Brexit.

Executive Stress is on the increase

Managers are continuing to put in long working weeks, far beyond their contracted hours, and are suffering high-levels of work-related stress, according to the latest research from the Chartered Management Institute (CMI). It found that the 1,037 managers surveyed for the research work, on average, an extra day each week.  This is an extra 7.5 hours beyond their contracted weekly hours (44.4 hours actual compared to 37.3 contracted), amounting to an extra 43.8 days over the course of the year. This is up from 39.6 days in 2015.

The rising gap between contracted and actual hours of work is in addition to an ‘always on’ digital culture, with 59% of managers saying they ‘frequently’ check their emails outside of work. Long hours and this constant communication are taking their toll on the mental health and wellbeing of managers. One in ten managers reported that they took time off for mental health in the last year, and for those who did take time out, it was for an average of 12 days.

Click here for our guide to promoting wellbeing  in the workplace.

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

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