January 24, 2021


  1. National Minimum Wage.
  2. Employment Tribunals – are they overwhelmed?
  3. Non-Disclosure Agreements (NDAs) – a timely review
  4. Bullying in the workplace.
  5. Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020
  6. Health & Safety at work.
  1. National Minimum Wage.

The Department for Business, Energy & Industrial Strategy (BEIS) has released a statement outlining 139 companies, including major household names, such as Tesco and Pizza Hut, who have failed to pay their workers National Minimum Wage (NMW) and were served with a notice of underpayment between September 2016 and July 2018, following investigations by HMRC.

In a breach of employment law, the group of companies has failed to pay £6.7m to over 95,000 workers. Tesco alone is responsible for over £5m of the total. Failures to pay NMW were primarily caused by low-paid employees being required to cover their own work costs, having to pay for training, uniform or parking fees.

Additionally, where employees moved into a different NMW bracket following a birthday, not all employers increased their pay as required. The 139 companies named and shamed must pay back their workers and face financial penalties for their conduct.

  • Employment Tribunals – are they overwhelmed?

Everyone expected an increase in employment tribunal applications after the Supreme Court case in 2017 ended fees. But what they forgot to factor in was that employment tribunals were already stretched because of funding cuts. The number of applications continues to increase – up twenty-five percent this year – and the tribunals are getting close to not being able to cope. Some applicants are suffering a record eight month wait before their cases are heard. Delay causes stress and causes memories to fade. Key witnesses can resign or retire from an employer’s business.

Is Acas early conciliation the answer? In its annual report Acas shows significant growth in take up. But what is early conciliation? Applicants must inform Acas before starting a tribunal claim. They are then offered early conciliation and an Acas conciliator approaches both parties. Is there a resolution both parties can live with? Early conciliation is impartial and is simply an attempt to save both parties time, worry and expense.

But early conciliation is not part of the tribunal process. Perhaps to stem the flow of applications going to tribunal hearings the examples of the civil or family Courts could be followed. In the civil Courts any party not prepared to try alternative dispute resolution can be penalised. And in the family Court parties must, in most cases, attend a mediation information and assessment meeting (a “MIAM”) before starting proceedings.

If mediation is not pursued, or does not work, a further opportunity to reach an early settlement is built into the family Court process namely at the financial dispute resolution hearing. This is a Judge led conciliation appointment. There are also conciliation appointments with Cafcass before the start of Children Act cases. Perhaps employment law should follow the model of family law?

With employment tribunals full to bursting, are disputes more likely to be dealt with in settlement agreements containing controversial non-disclosure agreements?

  • Non-Disclosure Agreements (NDAs) – a timely review

NDAs (confidentiality clauses) are in the news. Some commentators allege illegal behaviour can be masked when employers pay employees or workers off and bind them to silence with an NDA.

What is an NDA? They are often found in settlement agreements, but they can also be required before starting a project – to stop business secrets and sensitive information becoming public. 

Settlement agreements (formerly known as compromise agreements) are a tried and tested solution to employment disputes. They save time and money, and an appearance in the employment tribunal.  The employer agrees to pay the employee a lump sum and often to provide an agreed reference. The settlement agreement is private and the reputations of both employer and employee are undamaged. Under the Employment Rights Act the employee receives independent legal advice before signing the agreement. But settlement agreements often contain NDAs.

The House of Commons Women and Equalities Committee reported in June on the use of NDAs in discrimination cases. It heard that employees and workers are often paid more under the terms of an agreement than they would receive in the tribunal.

But the committee found it unacceptable that allegations of unlawful discrimination and harassment are routinely covered up by employers with NDAs, and that some allegations of unlawful discrimination are not investigated property. Criminal investigations are avoided and in some cases employees and workers can’t give evidence in Court. Victims often suffer emotional and psychological damage and don’t receive support.

The committee believes that Government should place a duty on employers to protect employees and workers, and should:

  • Ensure NDAs don’t prevent discussion of allegations of unlawful discrimination or harassment
  • Require plain English confidentiality clauses
  • Strengthen requirements that employers protect employees and workers from discrimination and harassment
  • Require employers at board level or similar to oversee anti-discrimination and harassment policies and the use of NDAs in these cases.

The Law Society has produced a downloadable leaflet, “Non-Disclosure agreements – what you need to know as a worker”. This urges employees and workers to take legal advice before signing an NDA because there a certain rights employees and workers can’t be asked to opt out of e.g. whistleblowing in the public interest and the ability to talk to the police or a regulator. The NDA should be clear, time limited, and work for both parties, not just the employer. Employees and workers are advised to make sure they always get a copy of the agreement.

  • Bullying in the workplace

Despite increased awareness, bullying remains a significant problem in many workplaces. In the policy paper ‘Seeking better solutions: tackling bullying and ill-treatment in Britain’s workplaces’ (2015), Acas reports that it receives around 20,000 calls about bullying and harassment to its helpline each year. The report suggests that the most effective way of addressing unwanted conduct at work is by cultivating a culture of trust where it is easy for employees to report bullying and where concerns can be identified and addressed swiftly and fairly. This feature considers what bullying is from a legal point of view, what employees can do about it where concerns are not so easily addressed, and how employers should handle situations that arise from bullying.

Bullying in the workplace is not the subject of any specific legislation. This can lead to a perception that nothing, in legal terms, can be done about it: an Acas helpline adviser described the frustration of some victims who often feel they have no choice but to resign (Acas, ‘Seeking better solutions’).

What is bullying?

There is no legal concept of ‘bullying’. However, there are some common themes which run through the case law for different types of claim. In addition, various organisations have issued guidance including definitions of bullying, some of which have been referred to by the courts. Acas, for instance, defines bullying as ‘offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient’ (see the Acas leaflet, ‘Bullying and harassment at work: a guide for managers and employers’ (June 2014)).

Abuse of power

Bullying classically involves an abuse or misuse of power – i.e. by senior employees against more junior ones. In Austen v Kettering General Hospital NHS Foundation Trust ET Case No.1901034/11, for instance, a hospital theatre manager (H) launched an unprovoked verbal attack on A, a nurse, telling her she was not fit for her job. An employment tribunal subsequently upheld A’s unfair constructive dismissal claim, finding that the bullying was sufficiently serious to amount to a breach of the term of trust and confidence.

Who is liable?

Acas’s ‘Bullying and harassment at work: a guide for employees’ (March 2014) provides some common-sense guidance for victims of workplace bullying. After exploring any informal avenues, the employee can bring a grievance under the employer’s procedures, which may result in disciplinary action being taken against the alleged bully and/or other means of resolution such as mediation or counselling. If these do not solve the problem, the question of who is potentially legally liable for any harm arises.

Primary liability

Perpetrators of workplace bullying that falls within the definition of harassment in the EqA can incur personal liability – Ss.109 and 110. Personal liability can also arise where one employee instructs, causes, induces or aids another employee to discriminate against or harass a colleague – Ss.111 and 112. Depending on the circumstances, perpetrators may also be personally liable for the torts of negligence and breach of statutory duty under the PHA.

Employer’s vicarious liability

Whether or not they are primarily liable for bullying or encouraging bullying, employers may be vicariously liable for acts of bullying carried out by employees or agents, without any need for proof of fault on the employer’s part. Vicarious liability under the Equality Act is governed by S.109. This provides that anything done by an employee in the course of employment must be treated as also done by the employer. Furthermore, anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal. For vicarious liability to arise, there is no need to show that the perpetrator acted with the employer’s or principal’s knowledge or approval. Employers can, however, defend claims on the basis that they took all reasonable steps to prevent their employees from bullying colleagues.

Remedies for bullying

Some cases of bullying result in physical injury. More common in bullying cases, however, is psychological harm. In personal injury cases the court must decide whether the bullying caused psychiatric damage, in the form of a recognised psychiatric disorder. The two main diagnostic classificatory systems used by the psychiatric profession are DSM-V (the American Diagnostic and Statistical Manual of Mental Disorders, 5th Ed, 2013) and ICD-10 (the World Health Organization’s International Classification of Diseases and Related Health Problems, 10th Revision, Vol.1, 1993). Essentially, if a psychiatric ailment falls within one of these classifications, it is likely to be sufficient to form the basis of a personal injury claim.

Dealing with bullying

Prevention is, of course, better than cure. The best way for an employer to deal with workplace bullying is to ensure it doesn’t happen in the first place, through fostering good workplace relations and ensuring processes are in place to address problems as soon as they arise. Furthermore, an employer who has taken such steps as are reasonable in the circumstances to prevent bullying will not incur primary liability for negligence, or vicarious liability for harassment under the EqA (unless the bullying was carried out by the employer’s agent, in which case no such defence applies) – S.109(4). (Nor is there a ‘reasonable steps’ defence under the PHA, i.e. the employer will be vicariously liable regardless of what steps it took to prevent the bullying.)

  • Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020

SI 2020/1638: Under these regulations, the Statutory Sick Pay (General) Regulations 1982, SI 1982/894, were amended with effect from 24 December 2020 in order to ensure that individuals will be eligible for Statutory Sick Pay (SSP) for the full period for which they are required to self-isolate, including where they have tested positive for coronavirus (COVID-19), or where they are in a household with someone who has tested positive in England, Scotland, and Wales.

  • Health and Safety at Work

The following is a list of some of the requirements to maintain a safe workplace for your staff:

  • Legislation
  • Case Law
  • H&S Policy
  • Insurance
  • Risk Assessments
  • Training
  • Promoting employee health and wellbeing.

Health and Safety Executive (HSE)

HSE is the government agency for advising and enforcing legislation. As well as legislation there is also a duty of care for all employers to protect their staff and this falls under “Common Law”.  All employers must take care of their employees’ health and safety under their employees’ contract of employment. This includes:

  • Recruiting staff who are capable and understand H&S requirements
  • Provide a safe workplace
  • Provide safe systems for all work
  • Provide the correct Personal Protective Equipment (PPE).

An employer who does not provide these basic requirements for its staff may be subject to an application to an Employment Tribunal or may be charged with a criminal offence.

Please remember- Health and Safety also includes the mental and physical welfare of your staff.

Currently there is also the addition of H&S requirements during and after the COVID-19 pandemic. We can provide advice on mental health support, returning to work, social distancing, occupation levels, and safe remote working from home.   

UK Legislation covering Health and Safety

There are extensive pieces of legislation that covers employees and employers. The following is a list of some:

  • Health and Safety at Work Act 1974 
  • Health and Safety at Work Regulations 1999
  • Working Time Regulations 1988
  • Corporate Manslaughter and Corporate Homicide Act 2007
  • Occupiers Liability Act 1957
  • The Workplace (Health, Safety and Welfare) Regulations 1992
  • The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR).

Ensuring that you are meeting your H&S obligations by providing a safe working environment for your organisation and staff is complex but necessary. If you need support, advice, information, risk assessments, Health and Safety policy and various H&S training. We can help!

You can get support and advice over managing TUPE by calling us on 07375 097443 or e-mailing enquiries@lbjconsultants.co.uk

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