August 26, 2020

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HR Updates

Tribunal erred in finding that dismissal for homophobic remarks was unfair

Tai Tarian Ltd v Christie, EAT

The EAT holds that an employment tribunal erred in concluding that a carpenter dismissed for making homophobic remarks in the presence of one of his employer’s tenants was unfairly dismissed. In finding that the employer had not established that the reason for dismissal was conduct, the tribunal had failed to explain why it had rejected the dismissing officer’s stated belief.

On the question of fairness, there was no proper basis for the tribunal’s conclusion that the tenant had embellished her account and refused to give further evidence. The tribunal had fallen into the error of substituting its view for that of the employer rather than applying the range of reasonable responses test.

Where an employer receives evidence about an employee’s misconduct from an informant who wishes to remain anonymous, the employee is potentially disadvantaged by not being able to challenge that person’s evidence. Employers should take written statements, seek corroborative evidence and check that the person’s motives are genuine (see our Discipline and Grievance Factsheet).

Tribunal incorrectly focused on decision-making process in S.15 EqA claim 

Department of Work and Pensions v Boyers, EAT

The EAT holds that an employment tribunal erred, when considering whether the dismissal of an employee for disability-related absence was objectively justified under S.15 of the Equality Act 2010, in focusing on the employer’s decision-making process rather than balancing the employer’s business needs against the discriminatory effect of the dismissal. Although the dismissal was unfair under S.98 of the Employment Rights Act 1996, this did not necessarily mean that it was also disproportionate under S.15 EqA.

Section 15 of the Equality Act 2010,
which is headed ‘Discrimination arising from disability’, provides that a person (A) discriminates against a disabled person (B) if:

  • A treats B unfavourably because of something arising in consequence of B’s disability, and
  • A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

In practice, many claims based on S.15 EqA turn on the second matter, commonly referred to as objective justification (see our Discrimination Factsheet).

Teachers made redundant in reorganisation were unfairly dismissed 

Gwynedd Council v Barratt and anor, EAT

The EAT upholds the decision that two teachers who were unsuccessful in applying for jobs at a new school which replaced the school at which they previously worked, and were accordingly dismissed as redundant by the local authority, had been unfairly dismissed. In reaching its decision, the employment tribunal had not fallen into the error of treating the failure to afford the teachers a right of appeal against their dismissals as determinative, or of treating case law guidance on appropriate procedural steps to take in redundancy cases as requirements to be followed in every case. Instead, it had reached the legitimate conclusion that the employer’s approach did not fall within the range of responses of a reasonable employer.

Dismissal was not ‘because of’ marriage 

The EAT upholds the decision of an employment tribunal that the reason for the dismissal of a vicar was a loss of trust and confidence in him by the governing body of the church where he worked, rather than the breakdown of his marriage.

Although the vicar’s marriage was the background to some of the reasons why the working relationship had broken down, the tribunal had made a clear finding of fact that the reason for dismissal was not in any way because of his marriage or marriage difficulties, or the imminent possibility of separation/divorce, or any combination of these.

Accordingly, the vicar had not been unfairly dismissed or discriminated against on the ground of the protected characteristic of marriage.

Complaints about working practices not qualifying disclosures 

The EAT upholds an employment tribunal’s finding that a worker had
not made qualifying disclosures within S.43B(1)(b) of the Employment Rights Act 1996, which concerns non-compliance with a legal obligation, when he complained about systems issues and ‘working practices and procedures more generally’.

It was not possible, on the facts found by the tribunal, to say either that a breach of a legal obligation was obvious or that it had been identified within the disclosure itself. When determining the reason for terminating the worker’s assignment, the tribunal had erred in failing to set out why the manner in which the disclosures were made was separable from the disclosures themselves.

 However, given its finding that the worker’s complaints did not amount to qualifying disclosures, this error was immaterial.

How employers can deter covert recording 

Employers clearly have good reason to discourage employees from covert recording. Not least, it minimises their potential liability for data protection and confidentiality breaches. Suggested pre-emptive measures are as follows:

  • have policies in place warning against covert recording, emphasising that it undermines trust and confidence and can breach data protection law and confidentiality
  • state in a disciplinary policy that covert recording is gross misconduct
  • list circumstances in which recording events at work may be acceptable, provided this has been authorised in advance
  • reiterate at the start of meetings (particularly those involving sensitive and confidential information) that any unauthorised recording could result in disciplinary action being taken
  • seek reassurances from employees that they are not planning to record a meeting
  • ask employees to turn their mobile phones off before a meeting starts
  • watch out for behaviour that might suggest a meeting or discussion is being recorded, such as a mobile phone being placed on the table
  • consider the outcome of, for example, disciplinary proceedings, away from the meeting room to reduce the risk of private discussions being recorded by an employee
  • remind managers that covert recording is becoming increasingly common and that they should conduct themselves professionally and appropriately at all times (i.e. in accordance with dignity at work and other such policies)
  • train employees to identify data and security breaches and to escalate them to appropriate individuals and teams within the organisation.

Furlough – Part-time working rules

Changes to the Coronavirus Job Retention Scheme from 1‌‌ September mean that employers will need to fund 10% of furloughed employees’ usual wages for the hours they do not work and continue to pay their National Insurance (NI) and pension contributions, as these will not be covered by future grants. Employers must still pay furloughed employees 80% of their wage but can only reclaim 70%.

The employee is entitled to be paid at their normal rate for the hours they work.

 From September 1st the employer will need to pay 10% and the government will pay 70% to make the pay up to 80%. They should receive 80% of their normal pay for the unworked hours.

Health & Safety Update

Driving continuity in the ‘new normal’ – The unknown

Some questions and answers.

A lot has been said about returning to work, but what about the people that have been in work throughout and now being challenged by employees returning?

The potential for a ‘collision between staff and furloughed staff and also shielding staff’ as the safe and healthy return continues has been managed by ensuring that:

  • Those staff who have been required to work through COVID feel valued and recognised for their contribution;
  • Furloughed staff have had ongoing communication with a focal point in their workplace who has kept them connected and provided consistent messages during furlough. Then as the return to work nears advised them of any changes/modifications to the workplace that will be apparent on their return;
  • Staff who have been shielding for personal reasons, or as a consequence of a family members shielding again, need that clear and consistent messaging;

“The challenge is to ensure that where the potential for conflict is identified there is a manager with the necessary competencies to manage this effectively. Depleted mental health is anticipated as the biggest challenge post-COVID and we need to equip our people to manage this.”

It has been mentioned about those who remained in work being resentful about ‘carrying the load’ for those who were furloughed.

What advice is that for managing this?

Communication and reassurance.

The employee may perceive themselves as being less valuable if they were furloughed – you need to be able to clearly articulate your reasons in a way that lets the employee understand – but be prepared for them not being able to accept this immediately. They may feel concerned that if they weren’t needed during lockdown, are they needed at all – are they going to lose their job? If the discussion highlights a skills gap for example, could you offer the employee upskilling or training?

What would you recommending for supporting staff who have been very busy/part of surge capacity and now being asked to work at home in isolation?

The answer has to be in re-creating a sense of community. Re-setting the workforce whether in a traditional pre-COVID sense of as we ‘build back better’ should be underpinned by:

  • Open conversations where facts are used to minimise fears, there is an agreed pattern of communication that creates continuity. Reflecting here on continuity errors spotted in some of the world’s greatest movies, the glaringly obvious overlooked, not seeing the wood for the trees;
  • Consistent approaches create consistent behaviours and an albeit ‘virtual’ environment within which people can thrive. The lack of consistency allowing people to feel disassociated, creating the potential for depleted mental health;
  • Recognising that it is the connections between us that sustain us and underpin the building back better process is the lesson to be learned and shared… whole people with whole lives who still need the ‘small talk‘, blended in with the business case…”
  • make sure that they are included in conversations/meetings etc. Make sure they have had adequate breaks/time off.”

How would you approach a workforce revolt to new policy and procedures?

Engagement, engagement, engagement! You have to continually consult, demonstrate you will do what you say you will do, use examples from other organisations, include employees or their representatives in the development of the policies and procedures, instead of dictating to them.

Core messages for staff driving for work i.e. hygiene at the depot & within the vehicle and cab sharing when delivering?

Risk Assess to include situational hazards as well as those COVID-related issues. Good hygiene, personal and of vehicles, physical distancing and the use of ‘follow-on’ vehicles to reduce cab sharing and interpersonal contact time. Have also seen similar approaches from delivery companies.  It’s about treating these rules and expectations the same as any other SHE risk. Engage, discuss, treat everyone the same, follow through on actions.”

How do you communicate information regarding improving sleep, without it being very word-based?

Is it still true that males find it harder to talk about how they are feeling and would rather hide things that are upsetting or bothering them?

Yes, but that doesn’t mean you shouldn’t try! Building an environment where people can communicate and feel able to do so is important. But equally, accept that some people do not want to talk about how they feel, or what’s bothering them – don’t force them. Just ensure everyone knows that if they need support, it’s there for them.

Will homeworking will become the ‘new normal’?

There has to be a balance – the element of social connection in the workplace is what sparks creativity and innovation.

For many employers, a blended approach might be a good halfway house – but it’s essential to ensure that remote and office-based workers have access to the same information, opportunities, team development etc.

How do you carry out risk assessments for people working from home?

Depending on the number of people working from home, you might want to consider an online assessment system that tracks completion and actions for you.

What positives do you think have come out of this situation?

Reflecting on how work has been done historically and what you want to ‘keep’ going forward.   Many employers have had to quickly realise that people can be equally, if not more effective, working remotely.  Reduction in commuting has resulted in lower emissions and fewer accidents.”

Driving continuity in the ‘new normal’ – The unknown

  • Gain best practice sharing insights, from industry leaders to you
  • Hear an occupational health & safety focus – learn how you can keep mental and physical health a priority
  • Learn and take away effective strategies for how you can support yourself, employees and people across your organisation during uncertainty and form a ‘new normal’.
  • Learn how you can still strive for excellence and use this time to your advantage to ensure the business is driving forward

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