Are employers being duped by job applicants?
Employers are being urged to do more to scrutinise candidate CVs and qualifications, in particular, following an investigation into a multi-million pound ‘diploma mill’ which may have duped British businesses for a number of years. Axact, which claims to be the “world’s largest IT company”, has been accused of issuing more than 3,000 fake qualifications to UK-based purchasers in 2013 and 2014 alone. Master’s degrees, doctorates and PhDs were all sold from hundreds of bogus online universities operated by the company, according to BBC Radio 4’s investigation. Another recent poll of 400 people undertaken by recruitment specialists Office Team, found that applicants commonly provided false information or made exaggerated claims when applying for jobs. This was particularly the case in relation to information about previous work experience, technical skills and details of the duties performed in previous roles.
This opens up broader questions about whether employers and recruiters are doing enough to check the information provided by applicants in CVs and on application forms. It highlights the importance of taking up references from previous employers and, if necessary, of digging deeper at interviews, to check out any unusual gaps in the applicant’s work history, or to find out more about the specific duties carried out and responsibilities held in their previous roles.
“Good Work” – the Government’s response to the Taylor review could lead to significant changes for all employers
The Government has responded to Matthew Taylor’s review of modern working practices with a paper called “Good Work”, which comes alongside four separate consultation papers. Commissioned in October 2016, the review looked at how employment practices needed to change, in order to keep up with modern business models, such as the gig economy, and made recommendations in relation to UK workers who do not currently have employee status. The government has confirmed that it will be taking forward all but one of the Taylor review’s 53 recommendations, although almost all of the proposed changes will be subject to further consultation.
The government agrees with Matthew Taylor’s conclusions and acknowledges that the application of new ways of working has resulted in the boundaries between employees, workers and self-employed becoming more blurred. It accepts that digitalisation of work allocation has created new challenges. The report says that this has made it easier for unscrupulous employers to miscategorise their workers and employees as self-employed. The government agrees that there should be greater clarity in the law. However, how this is to be achieved remains to be determined.
The Taylor review included recommendations that those on zero hours contracts in post for 12 months should have the right to request a contract which guarantees them the hours worked; and agency workers placed at the same hirer for 12 months should have the right to request engagement by the hirer. The current consultation acknowledges the merits of these proposals but goes further by saying that the right to request should not be exclusive to these groups. The government is, therefore, seeking views on implementing a right to request a more predictable and stable contract, available to many workers.
Other proposals within the report are likely to apply to those with employment status, as well as other categories of workers, so will have implications for all employers. This includes a proposal to require a statement of employment particulars (usually part of the employment contract) to be issued by/on day one of employment (rather than within the first two months). The intention is that such a statement will also, in future, need to be issued to all workers. The Government is also committed to extending the right to itemised payslips to all workers, and to require pay rates to be included on the slips of those who are time-paid, to encourage transparency.
For employers who engage atypical workers who do not work every week, the government are consulting on some potentially important practical changes. Currently, continuity of employment is lost if someone doesn’t work for a week between engagements, stopping many casual employees getting to the two years continuous service required to claim unfair dismissal. The consultation asks whether this should be changed, so that gaps of less than a month do not break continuity as recommended by the Taylor review, or whether some other period should be used. There is also a firm intention to change the reference period for holiday pay, to use a year for calculation rather than just the last 12 weeks. This will be of benefit to seasonal workers and will make sense for many engaged on variable work patterns, so that what they are paid when off reflects their average earnings over the year.
Redundancy pay and other statutory award limits to rise
In April 2018, statutory redundancy payments will rise and there will also be an increase in the statutory rates and limits which apply to other employment rights, such as the basic award for unfair dismissal and the maximum compensatory award for unfair dismissal.
The new limits will apply to dismissals where the effective date of termination is on or after 6th April 2018. Where the dismissal falls before this date, the old rates will apply.
- £508 will be the maximum amount of a week’s pay for calculating statutory redundancy pay, and the basic award for unfair dismissal (up from £489);
- £15,240 will be the largest possible statutory redundancy payment or basic award (up from £14,670);
- £83,682 will be the maximum compensatory award which can be made after a successful “ordinary” unfair dismissal claim (up from £80,541); and
- £98,922 is the maximum potential award for unfair dismissal when the basic and compensatory awards are combined (up from £95,211).
If you would like to check the changes to other statutory rates, please click here for more information.
There is also an additional cap of one year’s gross salary on the compensatory award for unfair dismissal, if it is lower than the maximum compensatory award figure. However, it is important to remember that there is no cap on the awards that can be made in some cases, including those for discrimination on the grounds of a protected characteristic, or those where whistleblowing is alleged to be the reason for the dismissal or detrimental treatment.
Another significant change from 6th April is in relation to severance and exit payments. This change will require a payment equivalent to notice to be taxed, before a tax-free severance payment can be made, irrespective of whether or not there is a Pay In Lieu Of Notice clause in the employment contract. Where termination and payment occur on or after that date and notice is not worked, a compensation payment will need to be divided up into an amount representing notice pay (which will be subject to income tax and Class 1 NICs) and the remainder of the payment (payable free of tax and NICs up to £30,000, if payable as compensation for loss of employment). However, importantly, these new rules will not apply to redundancy payments, which will remain free of tax and Class 1 NICs up to £30,000.
The Equality and Human Rights Committee (EHRC) launches its “Working Forward” campaign
This campaign encourages organisations to pledge their commitment to making their workplace the best it can be for pregnant women and new parents. The EHRC is looking for employers to take action in four key areas: leadership; employee confidence; supporting line managers and flexible working.
By joining the campaign and pledging their commitment to addressing the action areas, employers will have access an array of guidance notes and support from the EHRC. The resources available include employer toolkits designed to help employers get started, expert assistance in developing policies on maternity and pregnancy matters and training events and webinars. The campaign is free to join and already boasts some prominent members including Barclays, Royal Mail and Ford Motor Company.
This campaign comes in repose to a recently publicised EHRC survey of over 1,000 top UK employers, which revealed some alarming attitudes towards mothers in the workplace. The survey asked organisations to disclose their opinions and operating practices with regards women and mothers in the workplace and found:
-a third of those working for private organisations believed it was reasonable to ask a woman about her plans to have children during the recruitment process
-59% of participants believed applicants should have to disclose if they are pregnant during the recruitment process
-46% of participants believed it was reasonable to ask a woman if she had small children during the recruitment process.
Speaking on the survey, the EHRC’s CEO Rebecca Hilsenrath referred to the findings as “depressing” and stressed that organisations should be provided with more support to allow them to understand basic employment law and what actions constitute discrimination against women. As gender is a protected characteristic under the Equality Act 2010, those who display such discriminatory attitudes towards women in the workplace run the risk of serious consequences should they be taken to a tribunal.
How far can you rely on a medical report when it comes to disability?
In an important case on knowledge of disability, the Court of Appeal in Donelien v Liberata UK Ltd has provided some reassurance that employers can place reliance on the information contained in an occupational health report if it says that an employee does not have a disability.
In this case, Miss Donelien had a long history of absence with her employer which appeared to be due to a variety of medical reasons. Following a complex series of events, including Miss Donelien being un-cooperative and refusing to consent to the occupational health provider writing to her GP, the employer received an occupational health report which stated that there was no evidence that she was disabled. Following dismissal, an Employment Tribunal found that her condition first amounted to a disability about a month prior to the date upon which she was dismissed. However, the Tribunal also held that the employer had not unlawfully discriminated in that time because the employer had not known that she was disabled. It decided that between the occupational health reports, the GP letters (which also did not say that she was disabled), and what was discussed with her at return to work meetings, the employer did not know that she had disability and could not reasonably be expected to know.
However, in a previous case of Gallop v Newport City Council, the Court of Appeal had said that an employer could not simply rely on the contents of an occupational health report to maintain that it could not reasonably know about a disability and said that it is for an employer to make its own decision about whether an employee is disabled. In that case the occupational health report had provided no explanation for why it concluded that the individual did not have a disability and the court emphasised that the employer cannot simply “rubber stamp” a medical adviser’s opinion.
The Court of Appeal in Donelien has been helpful in clarifying the position and says that the previous decision in Gallop was based on the court’s criticism of an employer relying unquestioningly on an occupational health opinion that offered no reasons. In this case however, the employer was found to have considered not only the occupational health reports (which did provide reasons) but also GP letters and its own return to work interviews, before making its own decision as to disability. In the circumstances it concluded that the employer reasonably did not know of the employee’s disability.
This judgment is reassuring about how far employers may need to go in determining whether or not an employee has a disability. The Court of Appeal has emphasised that, in general, great respect should be shown to views of an occupational health provider, albeit they “should not be followed uncritically”. Therefore, if a report lacks explanation, or the conclusion is inconsistent with other evidence, it may be sensible to ask questions of the occupational health provider to clarify the issue. It may also not be sufficient to rely on advice provided in one occupational health report in isolation. However, if a decision taken in the round, considering the employer’s own interactions with the employee, alongside relevant medical opinions, it will be difficult for a Tribunal to say that the efforts to establish the correct position were unreasonable, even if the employer ultimately reaches the wrong conclusion legally (as happened here). This could be the difference between successfully defending a tribunal claim and being ordered to pay considerable compensation.
Employers urged to improve their understanding of the health & safety risks of the future workplace
A recent report by the British Safety Council (BSC) has examined the health and safety risks of the future workplace, urging employers to assess and improve their own and their employees’ understanding of the dangers of new technologies and the future skills required for work.
The Future Risk Report, produced by Robertson Cooper emphasises the need for businesses, trade unions, educators, regulators and governments to understand and mitigate against the changing risks of the future workplace. The BSC called for the regulatory systems that protect modern workers to be updated to mitigate risks arising from future technology, as machines and employees are expected to work together more. These included the physical risks of working in close proximity with robots. It also raises the question of where responsibility and liability lie when automation at work goes wrong. It suggests that research needs to improve “if we are going to take action to enhance people’s physical and mental wellbeing”.
Given that automation is set to replace around a quarter of a million public sector jobs in the next 15 years, and the growing gig economy and changes in the ways people are working, the BSC said some gig working may “undermine such basic human needs as social identity, economic security and a sense of belonging”. Whilst acknowledging that the effects of new technologies are not all negative and that technology could give employees more tools for self-determination, as well as enabling older workers to stay healthier for longer, the report also states that working alongside technology, such as intelligent machines and robots, could cause employee stress, as they outperform humans and new skills are required.
To counteract this, the BSC says that organisations must develop policies to ensure that work is rewarding, healthy and safe, as there is strong evidence that ‘good work’ improves employees’ productivity and health. It recommends that employers introduce specialist training and wellbeing programmes, to help employees gain skills to build their resilience to new technologies, and concludes that employers and researchers should share best practice around quality job design to help create and retain positive employee and employer relationships, as the shift away from traditional working practices continues.
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 firstname.lastname@example.org or Click Here to visit our website.