HR Newsletter – May 2019

How can employers support their staff during the month of Ramadan?
As we enter the month of Ramadan, it can be difficult for Muslim staff to manage their religious commitments and cope with a month of fasting. So, what can employers do to support their staff during Ramadan, whilst also ensuring business needs are met and the welfare of their wider workforce is taken into account? click here to read more…

Time for a tea break?
A survey of 2,000 people by sofa and carpet specialist, ScS, shows that the beloved tea break is still an important part of our workplace culture. In fact, a staggering 45 million people in the UK drink, on average, five cups each day – that’s 225 million cups of tea a day! So, who are the biggest tea drinkers? click here to read more…

Office administrator discovered male replacement was being paid £3.5k more for same role
An Employment Tribunal has found that a finance administrator whose male replacement was paid £3,500 more than her whilst undertaking an essentially identical role was discriminated against under equal pay law. click here to read more…

When does conduct attributed to an employee’s own personal religion become a disciplinary issue?
Professional rugby player Israel Folau could potentially have his contract terminated by the Australian rugby union authorities after making offensive and discriminatory remarks on social media relating to homosexuals and those without a religious belief. The player, who is a devout Christian has argued that the comments reflect his own personal religious beliefs, which brings into question whether an employee can be disciplined for conduct they attribute to their own personal religion. click here to read more…

Research finds that recently bereaved employees don’t receive enough workplace support
The Institution of Occupational Safety and Health’s (IOSH) recently published review, which examines research conducted since 1995 has concluded that the level of support for bereaved workers is “insufficient”, with many individuals receiving almost no acknowledgment of their loss. click here to read more…

New EU legislation will give greater protection to ‘gig economy’ workers
As rights and entitlements associated with gig economy workers has become a highly scrutinised topic over recent years, new EU legislation will require organisations to inform all casual employees about ‘essential aspects’ of their role from their first day. click here to read more…

Employee with type 1 diabetes awarded £14k for disability discrimination
An employee with type 1 diabetes who was left feeling “intimidated, under the spotlight and concerned for her job” was been awarded £14,000 for disability discrimination and harassment. The employment tribunal determined that from the outset of her two months’ employment as a fleet administrator at Weston Homes, Holly Carr was “humiliated” and “highly embarrassed” as a result of the treatment she received at the housing company. click here to read more…

Home Office announces no changes to right to work checks prior to 2021, even if there is a no-deal Brexit
Advice from the Home Office has confirmed that no alterations will need to be made to the way that employers conduct right to work checks until January 2021, provided they comply with existing codes of practice on the prevention of foreign nationals working in the UK illegally. click here to read more…

Recent Employment Tribunal decision extends scope of claims for ‘injury to feelings
Awards by Employment Tribunals for ‘injury to feelings’ have historically only been permitted in claims linked to discrimination, whistleblowing and trade union membership. However, a recent Employment Appeals Tribunal (EAT) decision, may have changed this situation. click here to read more…

How can employers support their staff during the month of Ramadan?

As we enter the month of Ramadan, it can be difficult for Muslim staff to manage their religious commitments and cope with a month of fasting. So, what can employers do to support their staff during Ramadan, whilst also ensuring the business needs are met and the welfare of their wider workforce is taken into account?

It is important to recognise that staff may be reluctant to make requests to accommodate their commitments over Ramadan, or to talk to their managers about how their performance at work may be impacted over this period. Open communication and awareness are, therefore, key and employers should ensure that line managers receive appropriate awareness training and that they are approachable and understanding of each individual’s situation.

Given the physical demands of daytime fasting, staff may require some adjustments to be made to their working routine over this period. This could include altering shifts patterns so employees can start and finish earlier in the day, or amending workplace duties to avoid any instances where added fatigue may put individuals at risk of injury. Some staff may wish to take annual leave to allow them sufficient opportunity to rest during times of fasting, or to take part in the Eid celebrations that follow. It will be reasonable to expect individuals to request time off in the usual way and provide adequate notice. However, where requests clash with other team members it will be advisable to work towards an amicable solution, rather than refuse them outright, to avoid claims of discrimination.

It is important that the workplace remains inclusive for staff during Ramadan and it may be unreasonable to expect employees to attend business lunches or other events whilst they are taking part in religious fasting. Additionally, excessive workplace temperatures could increase feelings of fatigue amongst certain staff and so employers should consider what measures can be taken to maintain a comfortable working environment.

Given the importance of Ramadan to Muslim employees, it may be helpful for employers to outline their approach in a religious observance policy, as this will provide a clear source of information on their rights at work during this time. At the same time, it is important to be aware that any policy will need to be inclusive, giving equal footing to other religions, in order to avoid further claims of religious discrimination.

Unfortunately, it can be the case that Muslim employees are at an increased risk of suffering religious harassment at work during Ramadan, either from third parties or their fellow colleagues. Other staff may have the misconception that Muslim employees are receiving ‘special privileges’ and employers should make every effort to dispel any notion of this. It may be helpful to remind colleagues that appropriate action will be taken against anyone found responsible for offensive behaviour and that ‘workplace banter’ will not be accepted as a legitimate excuse for discrimination.
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Time for a tea break?

A survey of 2,000 people by sofa and carpet specialist, ScS, shows that the beloved tea break is still an important part of our workplace culture. In fact, a staggering 45 million people in the UK drink, on average, five cups each day – that’s 225 million cups of tea a day! So, who are the biggest tea drinkers?

Out of those questioned, electricians were revealed to drink the most; consuming, on average, eleven cups a day. Architects came second, with a consumption rate of eight cups a day, whilst engineers and IT workers were found to take the most sugar in their tea. Cleaners took the least sugar, with 74% saying they don’t take any.

The top five tea drinking professions (and average number of cups drunk a day)

Electrician – 11.4 cups

Architect – 8.2 cups

Doctor – 7.2 cups

Chef – 7 cups

Mechanic – 6.7 cups

The poll of 2,000 people also asked about their preferred time to have a tea break. Just under a third (31%) have a brew at 8am, with afternoon pick-me-ups at midday (25%) and 3pm (27%). Looking at the last brew of the day, a third (31%) confessed to having one after 9pm. However, over half (52%) confessed that tea disrupts their sleep.

Lisa Artis, Sleep Advisor from The Sleep Council, comments on why you shouldn’t drink tea before bedtime:

“Caffeine is a stimulant which blocks the sleep-inducing chemicals in the brain, increasing adrenaline production, and making it harder to fall asleep. Each cup of black tea contains approximately 40 to 70mg of caffeine, which is roughly half as much as is in a cup of coffee. When you drink a cup of tea, the caffeine is absorbed by your body in roughly half an hour. This then disrupts the function of one of the body’s key sleep-inducing molecules, adenosine.

“Every individual has a different reaction to caffeine, so it’s difficult to pinpoint an exact time to stop drinking tea before bed. Ideally, we should stop three to four hours before sleep. However, some may prefer to stop drinking it much earlier on in the day, and others have no problems when drinking tea just before bed! If you’re someone who can struggle to fall asleep, I’d suggest going caffeine-free earlier than you usually would, and see what happens.”
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Office administrator discovered male replacement was being paid £3,500 more for same role

An Employment Tribunal has found that a finance administrator whose male replacement was paid £3,500 more than her whilst undertaking an essentially identical role was discriminated against under equal pay law.

Ms J Broom had worked at Wakefield-based care provider Alternative Care Ltd for nearly two years before she resigned, leaving the business as the finance administrator/financial manager with a salary of £18,000. After she left, the business initially advertised for a new office administrator. However the director Gaynor Smith then decided to approach her daughter’s partner, Kieren Sartori, to fill the role.

Sartori accepted the offer, with official documentation stating he would be appointed as a finance administrator. The offer came with a £21,500 salary – £3,500 more than Broom had been paid.

After it was announced Sartori would transition into Broom’s role, it became part of Broom’s responsibility to handle payroll, at which stage she learned her replacement was being paid significantly more than she had been.

Broom submitted a formal grievance to the organisation on 16 February, and for a short period worked alongside Sartori while fulfilling her notice period. During this period, Sartori was shadowing Broom, who, the tribunal agreed, effectively “trained him to take over from her”.

At the tribunal, Broom produced a detailed job description itemising the tasks she fulfilled, which Sartori agreed broadly corresponded with his daily duties, placing him in a like-for-like role.

Alternative Care maintained that Sartori was recruited to a senior and strategic role, therefore justifying his higher salary. However, the tribunal found that as this did not come into practical effect during the training period – when Broom functioned “to all intents and purposes” as the financial manager – the two were fulfilling identical tasks.

“Looking at practically what the two jobs entailed, determining that any differences that did arise in relation to qualifications or any further duties that Mr Sartori was expected to conduct in the near future at the end of the Claimant’s employment are not of practical significance,” the Judge said.

“We conclude that this is indeed like work. It is broadly similar. In fact, to all intents and purposes it is the same job.”

Alternative Care said it had been necessary to pay the enhanced rate to Sartori in order to fill the role, as he would not move for the existing salary – but the tribunal found there should have been “no difficulty” in recruiting at a lower rate. The role was not advertised externally and no steps were taken to approach alternative candidates, nor was Broom’s pay bumped up following Sartori’s appointment.

Broom was awarded compensation of £390.40 in respect of the notice period she worked with Sartori.

This is a reminder to employers that whilst it is not inherently unlawful for an employer to offer a better salary than that offered to existing employees in order to attract candidates, it does create a risk of an equal pay claim under the “equality of terms” provisions of the Equality Act 2010, from those of the opposite sex who perform the same, or similar work for lower pay. In such cases, a salary differential will be lawful only if the employer is able to establish that the pay differential was an appropriate and necessary measure to adopt in response to a real business need. There would need to be clear evidence, for example, of a recruitment problem in relation to the post in question that could be addressed effectively only by offering new recruits a higher salary. Even in these circumstances, a tribunal is likely to enquire as to whether or not any less discriminatory measures could have been adopted.
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When does conduct attributed to an employee’s own personal religion become a disciplinary issue?

Professional rugby player Israel Folau could potentially have his contract terminated by the Australian rugby union authorities after making offensive and discriminatory remarks on social media relating to homosexuals and those without a religious belief. The player, who is a devout Christian has argued that the comments reflect his own personal religious beliefs, which brings into question whether an employee can be disciplined for conduct they attribute to their own personal religion.

From a UK employer’s perspective, employee’s online activity can, to some degree, be controlled and the risks mitigated by introducing a social media policy. This will give organisations the ability to take disciplinary action against those whose actions (such as discriminatory remarks on social media) bring the company into disrepute. However, employers should carefully consider whether such action is reasonable, taking into account the context of the comments, the seniority of the employee and the potential impact this behaviour could genuinely have on client relationships and the rest of the workforce.

Employers will also need to be careful about how they respond to online remarks which are based on religious beliefs. It is always important to keep in mind that an employee is entitled to hold and manifest a religion or belief, provided that this does not unreasonably impinge on the religion, belief and human rights of others. Employers faced with a situation like this should conduct a thorough investigation before reaching any decision regarding whether disciplinary action may be appropriate and, if so, what form that action should take. Staff have a right under the Equality Act 2010 not to receive any less favourable treatment or victimization on account of their religion. Any disciplinary action taken must, therefore, be as a result of the employee’s inappropriate behaviour (in manifesting that religion or belief). It is, therefore, important to have well-constructed policies in place, and to allow employees the right to appeal, so as to ensure any disciplinary action for inappropriate conduct is not open to claims of discrimination.
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Research finds that recently bereaved employees don’t receive enough workplace support

The Institution of Occupational Safety and Health’s (IOSH) recently published review, which examines research conducted since 1995 has concluded that the level of support for bereaved workers is “insufficient”, with many individuals receiving almost no acknowledgment of their loss. The report urges employers to do more to understand how newly bereaved workers experience the process of returning to work following the death of a loved one. Mary Ogungbeje, OSH research manager at IOSH, said employers suffered a ‘lack of guidance’ when supporting bereaved employees during their grief and through the return-to-work period.

“Managers can struggle to bring the subject up and may avoid the topic out of fear of saying something insensitive,” said Ogungbeje.

“It is important managers understand how an employee is feeling after returning to work. Both the organisation and the individual employee can benefit from having good policies in place. Being able to use discretion – such as providing the option to work from home, flexible working hours, and reviewing workloads and deadlines – empowers managers to be able to best support the bereaved employee.”

The review found that only around a fifth of participants in one study believed their employer had allowed sufficient paid time away from work for grieving and, in some instances related to the death of a child, they were refused time to organise and attend funerals.

Flexible working practices would help reduce the pressure of a high-demand working environment when returning to work, the review said. However, only one-third of organisations with between 150 and 5,000 employees offered their bereaved staff some form of flexible working options, while 84% of workers in another study reported they were expected to resume full responsibilities on their return to work. Participants reported that they found the idea of returning to work “daunting” and their energy, confidence and creativity was “significantly reduced” in the aftermath of their bereavement.

Leanne Flux, PhD candidate in psychology at Canterbury Christ Church University, said: “We found a lack of response specifically in long-term support, a lack of clarity around how much time is allowed off work for the bereaved, and a lack of clear HR guidance in the way forward.”

The review referred to short-term support as “good” but the longer-term unstructured approach of “whatever is needed” was particularly unhelpful. It is recommended that employers should adopt a more proactive approach rather than waiting for bereaved workers to ask for help and suggested that organisations should name an individual responsible for offering informal bereavement support.

There is no current statutory entitlement to paid bereavement leave in the UK, though workers are entitled to reasonable unpaid time off to deal with the logistics around a bereavement. Since the introduction of a new law in 2018, parents experiencing the death of a child are entitled to two weeks’ leave paid at the statutory rate.

IOSH’s review found paid leave tended to be left to the discretion of line managers and this ambiguity caused confusion relating to employee entitlements. Half of line managers were found to have permission to grant additional compassionate leave beyond the level stated in the official policy.

“By understanding bereaved employees’ experiences of workplace support, we will not only create awareness and knowledge of what best practice support looks like to them, but may assist to develop individualised care and support for employees who may be experiencing mental distress in the workplace,” Flux added.
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New EU legislation will give greater protection to ‘gig economy’ workers

As rights and entitlements associated with gig economy workers has become a highly scrutinised topic over recent years, new EU legislation will require organisations to inform all casual employees about ‘essential aspects’ of their role from their first day.

Although employees in EU member states are already provided a wide variety of protections, such as working hours, rest break entitlements and holiday pay, there has been continued uncertainty surrounding the rights for workers in the ‘gig economy’. In response, the European Parliament has approved new EU rules that will offer protection to workers in this situation. Enrique Calvert Chambon MEP explains that the aim is to prevent organisations from ‘abusing the flexibility in the labour market.’

Many of those operating in the ‘gig economy’ can be faced with significant issues in their working environment, from job uncertainty to diminished rights. Applying to ‘the most vulnerable employees on atypical contracts and in non-standard jobs’, these new rules offer protection to all individuals who work at least three hours a week over four weeks but not those who are ‘genuinely self-employed.’ The provisions will require workers to be informed of the following:

indication of what a standard working day is
basic description of their duties
starting date and pay information
only one probationary period that lasts a maximum of six months
that they no longer need to adhere to ‘exclusivity clauses’.

EU Member States will be expected to implement these new protections three years’ after the regulation comes into force, something that is set to affect over 3 million workers. If the UK is still a member state at this time, it will also need to adapt this into domestic law.

Although it remains unclear what the future relationship between UK and EU law will be in light of Brexit, the UK has already announced reforms to current law surrounding workers in the gig economy. Additional obligations to be placed upon organisations include:

ensuring workers are provided a ‘statement of rights’ from day one, from 6 April 2020
increasing maximum fines on organisations from £5,000 to £20,000 if they are found to have shown ‘malice, spite or gross oversight’, from 6 April 2019
prohibiting Swedish Derogation contracts that prevented agency workers from receiving equal pay after 12 weeks of service, from 6 April 2020.

An employee with type 1 diabetes who was left feeling “intimidated, under the spotlight and concerned for her job” was been awarded £14,000 for disability discrimination and harassment. The employment tribunal determined that from the outset of her two months’ employment as a fleet administrator at Weston Homes, Holly Carr was “humiliated” and “highly embarrassed” as a result of the treatment she received at the housing company.

During a staff lunch held to welcome her to the company, attended by her line manager, Lauren Goodwin, and events co-ordinator Gaynor Impiazza on 5 July 2017, Carr said she would not be drinking alcohol because she had diabetes, alerting the pair for the first time to her condition. The tribunal heard Carr had not felt the need to disclose it in either her interview or her application because it was “under control and not affecting her life”.

Carr later discovered that after the lunch, Impiazza and Goodwin were involved in an email conversation, during which one message from Impiazza said: “Let’s hope so… as long as she doesn’t go into hypoglycaemic [low blood sugar level] shock anytime soon!!!” followed by a ‘shocked face’ emoji. The email came to Carr’s attention when Goodwin asked Carr to search through Goodwin’s phone for an email thread between the two of them.

Impiazza’s claim that the message was out of genuine concern was rejected by the court and ruled a joke at Carr’s expense.

After becoming aware of Carr’s diabetes, Goodwin told Carr that she had to meet with HR because she failed to tell them she was diabetic during her interview. Another member of staff attended the meeting, and noted Goodwin asked Carr detailed questions about her medication and her strategies for keeping well. She was asked what time she took her medication, how regularly she tested her blood, and what she would do if she felt unwell.

The judge ruled that “Goodwin’s questioning of [Carr] during this meeting was excessive, invasive and heavy handed.”

As well as being taken around the office and introduced to first-aiders as “a diabetic”, at one point Carr was also told not to tell a colleague about an incident of low blood sugar or she would be “sacked on the spot”.

Throughout her time at the company, Carr’s competence was flagged several times. Following an incident on 14 September, which involved allegations that a car was not cleaned in time, Carr was invited to a meeting with Richard Kuyper, executive associate at the company. The tribunal heard Carr did not know the reason for the meeting.

Carr was told in the meeting her employment was not going to work out given that she had been spoken to by Goodwin several times and the company had seen no improvement. Kuyper did not refer to specific allegations until Carr asked for further details, and the tribunal heard he appeared reluctant to go into detail of what had happened or what was wrong with Carr’s performance.

In the meeting Carr was told her contract of employment would be terminated with immediate effect.

The court conceded Carr’s performance “had not been perfect”, but ruled the allegations surrounding poor organisation were not substantial enough to warrant dismissal.

The judge ruled: “It is our judgment that the main reason for the Claimant’s dismissal was her disability. It is also this tribunal’s judgment that a person with a different disability, with the Claimant’s level of competence, (making the same level of mistakes that she did) would not have been dismissed.”

A spokesperson for Weston Homes said the company was “extremely disappointed” in the tribunal’s judgment, adding that the firm “totally rejects the allegations made by Mrs Carr and has contested them vigorously”.

This case is an important reminder to employers that threats to dismiss an employee because of their disability are clearly an act of direct discrimination and harassment, especially as there is a clear link to their protected characteristic and another non-disabled employee will not be subjected to these threats.

Any disclosure of a disability, whether in an interview, in a medical questionnaire or at a later stage, should be treated appropriately by employers. It would be good practice to meet with the employee to discuss their disability, how this may affect them in the workplace and whether any reasonable adjustments are needed. Questions need to be sensitively phrased and not unnecessarily intrusive.
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Home Office announces no changes to right to work checks prior to 2021, even if there is a no-deal Brexit.

Advice from the Home Office has confirmed that no alterations will need to be made to the way that employers conduct right to work checks until January 2021, provided they comply with existing codes of practice on the prevention of foreign nationals working in the UK illegally. This means that organisations will not need to differentiate between EU, EEA and Swiss citizens and their family members who were resident in the UK before or after the UK leaves the EU.

Individuals who fall into these categories will continue to prove their right to work in the UK as they do now, such as by showing a passport or national identity card. Alternatively, organisations can now conduct checks through the use of the Home Office online service if the individual has been granted status under the EU Settlement Scheme, which has now been fully rolled out and is accepting applications. Any checks will need to be clearly recorded and it should also be remembered that employees cannot be made to undertake an online check.

If the UK leaves the EU with a deal, EU nationals arriving in the UK prior to 30 June 2021 will be able to apply for status under the Settlement Scheme. If there isn’t a deal, those who are already in the UK prior to the date it leaves the EU will be able to apply. Following this date, there will be a transition period until 1 January 2021, during which time European workers coming to the UK will be able to work for 3 months without needing to apply. If the employee wishes to remain for longer, they will need to be granted temporary leave to remain, which will last for 36 months.

From January 2021, a new checking system will be introduced and it currently remains unclear what form this will take. It is therefore advisable that employers keep an eye on this as it develops.
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Recent Employment Tribunal decision extends scope of claims for ‘injury to feelings

Awards by Employment Tribunals for ‘injury to feelings’ have historically only been permitted in claims linked to discrimination, whistleblowing and trade union membership. However, a recent Employment Appeals Tribunal (EAT) decision, may have changed this situation.

The case of South Yorkshire Fire and Rescue Service and Mr D Mansell and Others involved a group of firefighters who brought a claim for a working time detriment following the introduction of a new shift system. The firefighters refused to volunteer for the new shifts on the basis that they contravened the Working Time Regulations 1998. They argued that the detriment they had suffered as a result of then being moved to other stations included increased journey times; interfered with care obligations; loss of leisure and family time and disruption to their work patterns and working relationships.

They succeeded in their claim for a breach of section 45A of Employment Rights Act 1996. However, in a surprise move, the tribunal also held that compensation for non-pecuniary loss, including injury to feelings, was potentially available.

South Yorkshire Fire and Rescue Service appealed on the basis that the tribunal had no jurisdiction to make that award and that appeal was unsuccessful, with the EAT reaffirming that injury to feelings awards can be made for claims of working time detriment. It was ruled that damages for injury to feelings can be claimed in any of the possible types of action set out in Part V of the Employment Rights Act 1996 – extending the scope much further than had been previously understood, to include:

Jury service;
Health and safety cases;
Sunday working for shop workers;
Working time;
Trustees of occupational pension schemes;
Employee representatives;
Studying or training;
Protected disclosures;
Leave for family and domestic reasons;
Tax credits;
Flexible working; or
Employee shareholder status.

The consequence of this is that employers should now be mindful that related claims for compensation for ‘injury to feelings’ may now be brought in far more situations than was previously the case and could, therefore, result in higher costs.
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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 websit

PBS HR Newsletter – May 2019